Torts Notes PDF

Chanakya National Law University Patna LAW OF TORTS NOTES ( B.A.LL.B & BBA.
LLB (1st year)
TORT – Definition, Nature and Scope
A. INTRODUCTION:
1. The Tort is of French origin. The root is ‘Tortum’ in Latin which means ‘twist’. It implies a
conduct which is ‘tortious’ , or, twisted.. The equivalent word in English is “Wrong”. In Roman it
is “delict” and in Sanskrit it is “Jimha” which means ‘crooked’.
2. How did the French word ‘Tort’ come to India?.
a) It came to India through England. In 1065 England was conquered by Normans who
were the French speaking people of Normandy, a region of France. After Norman
conquest, French became the spoken language in the Courts in England, and thus many
technical terms in English law owe their origin to French, and ‘Tort’ is one of them.
b) In British India, the first courts were established by the British in the Presidency towns of
Madras, Bombay and Calcutta as Mayor’s courts. The Charter that established these
courts required them to adopt the English common law of torts in force at that time to
their Indian jurisdiction. Thus, ‘tort’ was introduced into the Indian legal system.
c) As for the other courts in India, which were established by local acts, there was no such
express provision. However, these local acts contained a section that required them to act
according to “justice, equity and good conscience” in cases where there were no
specific law or usage. The expression “justice, equity and good conscience” has been
interpreted by courts to mean English common law insofar as they are applicable to the
situation, facts and circumstances of the case before the courts.
3. Meaning of Tort:
At a general level, tort is concerned with allocation of responsibility for losses, which are bound
to occur in society.
Tort is a branch of law governing actions for damages for injuries to private legal rights of a
person, say, right to property, right to personal security, right to reputation, etc.,
B. DEFINITION OF TORT:
1. SALMOND’s Definition:
Tort is a civil wrong for which the remedy is a common law action for unliquidated damages,
and which is NOT exclusively the breach of a contract, or, the breach of a trust, or, other
merely equitable obligation
2. WINFIELD’s Definition:
‘TortIous liability’ arises from the breach of duty primarily fixed by law. This duty is
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Chanakya National Law University Patna LAW OF TORTS NOTES ( B.A.LL.B & BBA.LLB (1st year)
towards persons generally and its breach is redressible by an action for unliquidated
damages.
3. FRASER’s Definition:
Tort is an infringement of a right in rem of a private individual giving a right of compensation at
the suit of the injured party.
4. POLLOCK’s Definition:
‘Tort’ is an act or omission (not merely the breach of a duty arising out of a personal relation,
or undertaken by contract) which is related to a harm suffered by a determinate person, giving
rise to a civil remedy which is not an action of contract.
‘The law of tort’s in civil wrongs is a collective name for the rules governing many species of
liability which, although their subject matter is wide and varied have certain broad features in
common, are enforced by the same kind of legal processes that are subject to similar
exceptions.
5. Clerk & Lindsell’s Definition:
A tort may be described as wrong independent of contract, for which the appropriate remedy
is common law action
6. Limitation Act 1963
Sec 2 (m) of the Limitation Act 1963 defines “Tort means a civil wrong which is not
exclusively a breach of contract or trust.” This is quite similar to Salmond’s definition.
C. ANALYSIS OF WINFIELD’S DEFINITION OF TORT:
1. Duty primarily fixed by law:

An essential principle of tortious liability is that the duty is always fixed by law itself and NOT
by any agreement between parties. Therefore parties cannot create a tortious liability through a
contract, nor, can they ‘negate’ a tortious liability through a contract. For Example I am
under a legal duty not to trespass on my neighbour’s property. This is a duty primarily fixed by
law on me. Similarly, by the same principle my neighbour cannot trespass into my property. As
per Winfield’s definition, liability arises from the breach of such duties fixed by law. Any
person who commits such a breach can be proceeded against in a court of law by the person
whose
rights are breached. There are in some cases, (called ‘vicarious liability cases’) though the
breach is not committed by himself yet he could be held liable, if the breach is committed by
his servant, or, agent, or partner.
Example: A who is the driver of B’s car knocks down C through his rash and negligent driving.
Though, A has breached the duty fixed by law, his master B will become liable n an action
initiated by C in court under the law of tort.
2. Duty is towards persons generally:

Here, the word ‘generally’ implies that applies to all. For example I am duty bound not to
trespass into my neighbours’ land. Similarly he is also duty bound not to trespass into my land.
Likewise, all our other neighbours and also others who are not our neighbours are bound by
the same law not to trespass into each other’s lands. In other words, it is common, or, not
unusual for the parties in a ‘tort action’ to know each other. This character distinguishes tort
from contract, bailment and quasi-contract.
3. Action for unliquidated damages:
In tort the damages are unknown and ‘unquantified’ till an action for damages arises in a
court. Thereafter, the court decides the quantum of damages based on merits of the claim and
circumstances of the case. Hence, theses damages are by its nature, “unliquidated’, unlike in a
Contract where it is possible to calculate the damages ( in the event of a breach) in advance
where, this is known as ‘liquidated damages’.
4. Other Remedies:
Besides un-liquidated damages, which are usually in the form of monetary compensation,
there are also other remedies available in a case of tortious liability. These are: a) Injunction,
b) Self –help, and c) Restitution of property.
5. Criticism (shortcomings) of Winfield’s definition:
a) In framing this definition, Winfield is not seeking to indicate what conduct is and what
is not sufficient to involve a person in tortious liability, to distinguish from certain
other branches of law
b) The phrase 'duty towards persons generally' is vague and not adequate to include duties
arising from special relationships like doctor and patient etc., and to exclude duties arising
between guardian and ward or trustee and beneficiary etc. which fall outside the ambit of
law of tort.
c) The phrase 'liability arises from the breach of duty', may be true at an earlier stage of
development of law of tort, but it is not applicable or appropriate to an important category
of liability at the present day, for example, vicarious liability of a master for his servant's
d) ‘Unliquidated damages’ is not the only remedy. There are other remedies such as self-
help, injunction and specific restitution of property also available.

D. ANALYSIS OF SALMOND’S DEFINITION OF TORT
1. Tort is a civil wrong.

A ‘Wrong’ can be civil or criminal. Tort belongs to the category of civil wrongs. In the case of a
civil wrong, the injured party institutes civil proceedings against the wrongdoer and the
remedy is damages. The injured party is compensated by the defendant for the injury caused to
him by another party. Whereas, in the case of a criminal wrong, the State brings riminal
proceedings against the accused, and the remedy is not compensation. Punishment is provided to
the wrongdoer. In a case where the act results in both civil as well as criminal wrong then both
the civil and criminal remedies would concurrently be available
2 Tort is other than Breach of Contract or Breach of Trust:
In order to determine whether the wrong is tort or not, the following steps are to be followed,
a) Whether the wrong is civil or criminal.
b) If it is civil wrong, it has to be further seen that whether it belongs to another recognised
category of the civil wrongs, such as breach of contract or breach of trust.
c) It is only when the wrong does not belong to any other category of the wrong that is,
breach of contract or trust, it is tort and if the wrong is breach of contract or trust, it is not
a tort.
However, if the act involves two or more civil wrongs, one of which may be a tort, in such a
case injured party can either claim damages under law of torts or under other breach of civil
wrong for example, breach of contract, but cannot claim damages twice.
3 Tort is redressible by action for unliquidated damages:
Damages is the most important remedy for a tort. After the commission of the wrong, it is not
possible to undo the harm which has already been caused but it is the monetary compensation
which can be awarded to the injured party. for example, if there is attack on the reputation of
the person, there is nothing that can be done restore his lost reputation, but monetary
compensation equivalent to harm can be paid to the injured. Unliquidated damages means
when the compensation has not been determined previously or agreed by the parties but it is
left to the direction of the court. These are the unliquidated damages which distinguish tort
from breach of contract or breach of trust in which damages may be liquidated that is,
previously determined or agreed to by the parties.
4. Criticism of Salmond’s definition: The definition given by Salmond fails to underline the
essential characteristics of tortious acts. According to this definition tort is a wrong but it does
not explain what is wrong and what kinds of wrong explaining jural features of tort. Moreover
the expression "civil wrong" itself requires explanation. Besides, Salmond’s definition also
suffers from all the shortcomings of Winfield’s definition. While this definition is more
informative, this is still far from perfect.

E. CONSTITUENTS OF TORT
The three main essential constituents of tort are:
Wrongful act, Legal Damage and Legal remedy
1) WRONGFUL ACT:
a) The first essential ingredient constituting a tort is that a person must have committed
a wrongful act. This refers to an act of commission, or, omission that is, he must have
done some act which he was not expected to do, or, he must have omitted to do
something which he was supposed to do. This is ‘wrongful’ because, there must have
been a breach of duty which has been fixed by law itself.
b) If a person does not observe that duty like a reasonable and prudent person, or, breaks
it either intentionally, or, unintentionally, he is deemed to have committed a
wrongful act. In tort, “intention” on the part of wrongdoer, usually has no role, except
in cases like malicious prosecution.
c) In order to make a person liable for a tort he must have done some legal wrong that
violates the legal right of another person, for example, violation of right to property,
right of bodily safety, right of good reputation etc., A wrongful act may be positive act
or an omission which can be committed by a person either negligently or intentionally
or even by committing a breach of strict duty for example, driving a vehicle at an
excessive speed.
d) More often than not, ‘unintentional acts of wrong arise out of acts of ‘negligence’. In
the usual sense, ‘negligence’ denotes carelessness. But, in the legal sense, it denotes, “a
legal duty owed and neglected”. In other words, the test for ‘wrongful act’ is the
breach of duty by a person and its consequences on another.
e) The wrongful act or a wrongful omission must be the one recognized by law. If there is
a mere moral or social wrong, there cannot be a liability for the same. For example, if
somebody fails to help a starving man or save a drowning child. But, where legal duty
to perform is involved and the same is not performed it would amount to wrongful act.
f) In Municipal Corporation of Delhi v Subhagwanti [ AIR 1966 SC 1750] where the
Municipal Corporation, having ownership and control of a clock tower in the heart of
the city, does not keep it in proper repairs and the failure to do of the same results in
the death of number of persons, the Corporation would be liable for its omission to
take care.
g) Similarly, failure to provide safe system would, also amount to omission, [General
Cleaning Contractors v Christmas [ (1953) A.C 180]
2) LEGAL DAMAGE:
a) The second important ingredient in constituting a tort is legal damage. In order to
prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act

or omission by the defendant which through its breach of a legal duty led to r the
violation of a legal right vested in the plaintiff. So, there must be violation of a legal
right of a person and, if it is not, there can be no action under law of torts.
b) Legal Rights of a person denotes a capacity residing in one person of controlling the
actions of others with the assent and assistance of the state to ensure a harmonious
living as a member of the society. They are those rights conferred by the State on all its
citizens. There are two types of Legal rights, viz, public rights and Private rights.
c) Public rights are those which belong in common to all members of the state. Example:
Public peace, Public safety etc.,
d) Private rights are vested in persons in general by virtue of law. It can be further divided
into two types, namely,.
i. Right in Personum is a right which one person can enforce on another specific
person. Example : Rights of parties to a Contract
ii. Right in rem is a private right that a person is entitled to against the society as a
whole, and is not limited to against any specific person. Example: Right to
property, Right to reputation, Right to etc.,
e) Wherever, there is a legal right bestowed by the law on any person, there are
corresponding legal duties mandated on others by the very same law not to violate the
rights. In some specific circumstances, there may be exceptions permissible by law such
as trespassing by a police officer on duty for justifiable reasons and so on.
f) So wherever there is an infringement of a private legal right, there arises a possibility
of a damage, which includes not only monetary loss, but also loss due to and arising
from physical injury, health, nervous shock, loss of comfort, and loss to property.
Case Law: In Ashby v White (1703) 2 Ld. Raym. 938 a returning officer was held liable in
damages for wrongfully refusing to take the plaitiff’s vote at an election.
g) So wherever there is an infringement of a private legal right, there arises a possibility

of a damage. This is best explained by the latin maxim “Ubi jus ibi remedium”,
meaning - Where there is a damage, there must be a remedy..
3) LEGAL REMEDY:
a) The third essential element is that the wrongful act that resulted in injury should give
rise to a legal remedy.
b) A tort is a civil injury arising from a wrongful act. All civil injuries are not torts. It is
therefore necessary that the wrongful act must come under the category of wrongs for
which the remedy is a civil action.
c) The principal remedy for tort is damages. Usually the court awards monetary
compensation. Since the damages are unknown at the time of the event of tortious act

of commission or omission, the damages are referred as unliquidated damages which are
decided by the court based on facts and merits of a particular case.
d) The different kinds of damages that are awarded by courts are as under:
i. Contemptuous damages or derisory damages: These damages are awarded when

the plaintiff moves the court on a technical legal ground without moral
justification. The courts express their disapproval of such conduct by awarding a
very low damages, of say, Rs. 1/=, or, even in paise.
ii. Nominal Damages: The damages awarded in cases where there is injury without a
loss, say the act of trespassing. Here a token amount, or, nominal amount is
awarded. In Ashby v White £5 was awarded as damages, which is nominal.
Usually in all cases of Injuria sine damnun nominal damages are awarded.
iii. Ordinary damages or Compensatory damages: When damages are awarded to the
extent of losses suffered by plaintiff, as a monetary compensation, these are
called ordinary, or, compensatory damages.
While arriving at the amount of compensation, courts will regard not only the
pecuniary losses suffered, but also, the social disadvantage resulting from the
wrong, mental pain and suffering, etc.,
iv. Aggravated Damages: The court at its discretion, tends to increase the
compensation when it finds the manner of commission of tort when it is
intentional, and with malice. Such increased compensation is called aggravated
damages. However, this is not to be confused with exemplary damages.
v. Exemplary damages or Punitive Damages: Sometimes, the gravity of offence may
be so severe, that the court may choose to set out an example to others as a
warning. In such cases the damages awarded are disproportionately high .
These are called exemplary damages, since, the aim here is not just to
compensate the victim, but to create a ‘deterrent’ for future offenders.
In Bhim Sigh v State of J&K, AIR 1986 SC 494, the Supreme Court awarded a
damage of Rs 50,000/= as exemplary damages.
e) Besides monetary compensation there are other remedies such as self-help, injunction
and specific restitution are also available.
f) Self-help is a remedy which the injured party himself can avail without going to a court
of law. It does not apply to all cases, and can be of use in some specific cases such as
trespass. If for example a person finds any undesirable stranger in his premises he is
entitled to drive him outside his boundary without resorting to undue or
disproportionate force.
g) Injunction is an order of the court restraining a) the commission, o,r continuance of a
wrongful act, or, b) continuance of a wrongful omission. Typical examples are those
associated with nuisance.

h) Specific Restitution of property are considered by the court as an alternate remedy in cases
where plaintiff is dispossessed of his land due to a wrongful actby the defendant.
F. LEGAL MAXIM - Ubi Jus Ibi Remedium:
1. The law of torts is said to be a development of the maxim ubi jus ibi remedium (which means
“where there is a right there must be a remedy”).
2. Jus signifies the ‘legal authority to do or to demand something’; and remedium may be defined
to be the right of action, or the means given by law, for the recovery or assertion of a right.
3. The maxim does not mean, as it is sometimes supposed, that there is a legal remedy for every
moral or political wrong. The maxim means only that legal wrong and legal remedy are
correlative terms; and it would be more intelligibly and correctly stated, if it were reversed, so
as to stand, “where there is no legal remedy, there is no legal wrong.” Again, speaking
generally, there is in law no right without a remedy; and, if all remedies for enforcing a right
are gone, the right has from practical point of view ceased to exist. The correct principle is that
wherever a man has right the law should provide a remedy and the absence of a remedy is
evidence but is not conclusive that no right exists.
4. Caselaws:
a) Ashby v White, (1703) 2 Lord Raym 938. In this leading case, the defendant, a returning
officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally
qualified voter, at a parliamentary election and the candidate for whom the vote was
tendered was elected, and no loss was suffered by the rejection of the vote, nevertheless
Holt, C.J, while holding that action lay, said “If a man has a right, he must of necessity
have a means to vindicate and maintain it and a remedy if injured in the exercise or
enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; want of
right and want of remedy are reciprocal.”
In this case the returning officer has acted maliciously and was held liable.
G. FOUNDATIONS OF TORTIOUS LIABILITY – 2 Theories
1) Theory – 1 : ‘Wider and narrower’ theory, or, “Growing Tree” Theory

a) This theory is supported by Winfield, Pollock and other eminent jurists.
b) According to this theory, all injuries done to another person are torts unless there is
justifications recognised by law. The underlying principle here is that all unjustifiable
harms are torts. It may be assault, battery, deceit, slander, negligence, or, it may not
even have a name at all. When a tort is specific, it is narrowed down to a particular
wrong. But when it is not specific, and considered at a wider level that all harms
without legal justifications are torts, then, it is in a wider sense. This approach allows

the field of tort to expand to accommodate newer torts as the society develops. It is
akin to a ‘growing tree’ with several branches, each representing an existing or known
tort and at the same time with new branches in the process of growing which can
represent a new tort under development.
c) This analogy reflects that attitude of courts when they attempt to create new torts
depending on the type of harm and need. Thus tort is like a ‘growing tree’
2) Theory – 2: “Pigeon Hole Theory
a) This theory is supported by Salmond, Glanville Williams and others.

b) According to Pigeon Hole Theory, there are definite number of Torts , outside which
liability in Tort does not arise.
c) Here, the law of Torts consist of a ‘net-set’ of pigeon holes, each containing a specific
tort such as assault, battery, deceit, slander, negligence, etc., If the defendant’s wrong
does not fit in any of these pigeon holes, then he has committed ‘no tort’.
d) Critics argue that this is a restrictive theory. But Glanville William says that pigeon
holes can be copious as well as multipliable / expandable.
3) Conclusion:
a) Both the above theories are correct in the sense that they are from different points of
view While one seems to be a broader perspective the other signifies a narrower
approach. After all, tort has grown over the years giving rise to new areas of torts such
as strict liability, absolute liability and so on. In the last few decades, new branches of
laws like consumer protection laws, defamation laws and the like, are in place.
Whether these can be seen as new branches of a growing tree, or new array of pigeon
holes, both approaches can be accommodated as valid points of view.
b) In Jai Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1, Justice Sahai.,
observed, “Truly speaking the entire law of torts is founded and structured on
morality. Therefore, it would be primitive to close strictly or close finally the ever
expanding and growing horizon of tortuous liability. Even for social development,
orderly growth of the society and cultural refineness, the liberal approach to tortious
liability by court would be conducive.
c) In Lala Punnalal v Kasthurichand Ramaji, it was pointed out that there is nothing like
an exhaustive classification of torts beyond which courts should not proceed, that new
invasion of rights devised by human ingenuity might give rise to new classes of torts.
H. Tort versus Crime: A comparative analysis:
1) Historically, crime and tort originated from the same root. Later on, they separated on the
account that a crime does not only affect the victim but also to the society as a whole to a great
extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the
branch of law that deals with torts.

2) The nature of tort can be understood by distinguishing it from crime and contractual civil
liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do
not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of
a contract, it may fall under tort. The damages are unliquidated and are decided only by the
common sense of the courts. The details are as follows:
3) Distinction between Tort and Crime
Tort Crime
Crime occurs when the right
Tort occurs when the right available to all the persons in
available to all the persons in general
general (right in rem) is violated.
(right in rem) is violated and it also
seriously affects the
society.
Act is comparatively less serious and affects only the Act is comparatively more serious
and affects the person as well as the
person.
society.
Intention is usually irrelevant. In most torts , However Intention is the most important
there are a few exception such as Malicious prosecution, element in establishing criminal
defamation etc., where motive plays a part and are called liability. A crime cannot happen
intentional torts. without Mens Rea.
It is a private wrong. It is a public wrong.
Since it is a private wrong, the wronged individual himself Since it is a public wrong, the suit is
must file a suit for damages. filed by the state.
The suit is for damages. The suit is for punishment.
Compromise is possible between the parties. For example, a There is no compromise for the
person who has been defamed, can compromise with the punishment. For example, if a
person is guilty of murder, he
defamer for a certain sum of money.
cannot pay money and reduce his
sentence.
Compounding is possible. Compounding is generally not
possible.
Justice is met by compensating the victim for his injury Justice is met by punishing the
and exemplary damages may also be awarded to the victim. aggressor by prison or fine. In some
In Bhim Singh vs State of J K AIR 1986 SC 494- the plaintiff specific cases as given in IPC
was awarded exemplary damages for violation of his compensation may be given to the
rights given by art 21. victim.
Law of Torts is not codified. Tortious acts (with a few Law of crime is codified. Several
criminal acts such as assault and
exceptions) are usually not criminal acts.
battery are also grounds for tortious

suit.
I. Tort versus Contracts: A comparative analysis:
1) The nature of a tort is that it is a civil wrong. However, not all civil wrongs are torts. For
example, breach of contract and breach fr trust are civil wrongs but are not torts because their
remedies exist in the contract itself. To determine if a particular act is a tort or not, we must
first make sure that it is a civil wrong. We should then make sure that it is NOT a breach of
contract or breach of trust.
2) Distinction between Tort and Breach of Contract
Tort Breach of Contract
Tort occurs when the right available to all the A breach of contract occurs due to a breach
persons in general (right in rem) is violated without the of a duty (right in persona) agreed upon
existence of any contract. by the parties themselves.
Victim is compensated for unliquidated damages as per
Victim is compensated as per the terms of
the judgment of the judges. Thus, damages are
the contract and damages are usually
always unliquidated.
liquidated.
Duty is fixed by the law of the land and is towards Duty towards each other is affixed by
all the persons. the contract agreed to by the parties.
Doctrine of privity of contract does not apply because
Only the parties within the ambit of
there is no contract between the parties. This was held in
‘privity of contract’ can initiate the suit.
the case of Donaghue vs Stevenson 1932.
When a contract is void, there is no
Tort applies even in cases where a contract is void.
question of compensation. For example, a
For example, a minor may be liable in Tort.
contract with a minor is void ab initio and
so a minor cannot be
held liable for anything.
In some torts like malicious prosecution , motive is Motive is immaterial in contracts.
relevant.
Justice is met by compensating the victim for his injury
and exemplary damages may also be awarded to the
Justice is met only by compensating the
victim. In Bhim Singh vs State of J K AIR 1986 - the
victim for actual loss.
plaintiff was awarded exemplary damages for
violation of his rights given by art 21.
J. Tort versus Breach of Trust

Tort Breach of
Trust
Tort occurs when the right available to all the
A breach of trust occurs due to a breach of a
persons in general (right in rem) is violated without the duty (right in persona) agreed upon by a
existence of any contract.
trustee.
Victim is compensated for unliquidated damages as per
Beneficiary is compensated as per the terms
the judgment of the judges. Thus, damages are of the trust deed and damages are usually
always unliquidated.
liquidated.
Duty is fixed by the law of the land and is towards Duty towards each other is affixed by the
all the persons. trust deed / agreed to by the parties.
.A tort can occur between strangers. There need not be In case of Trust, the parties are in a
any relationship between parties. fiduciary relationship
K. Tort versus Quasi – Contract
Quasi contract cover those situations where a person is held liable to another without any agreement, for
money or benefit received by him to which the other person is better entitled. The judicial basis for the
obligation under a quasi contract is the existence of a hypothetical contract which is implied by law,
the purpose being prevention of “unjust enrichment”.
Tort Quasi -
Contract
No Duty owed to persons for duty to repay
Duty is fixed by the law
money, or, benefit received.
Victim is compensated for unliquidated damages as per In quasi – Contracts, the damages recoverable
the judgment of the judges. are usually liquidated damages.
.A tort can occur between strangers. There need not be In case of quasi-contract the parties are not
any relationship between parties. usually strangers.
L. LEGAL MAXIM - Injuria sine Damnum
1. The latin word ‘injuria’ refers to not just a physical injury, but an infringement, or, a
violation of a legal right, or invasion of individual interests. The latin word ‘damnum’ refers
to losses.
In cases of injuria sine damno, i.e., the infringement of an absolute private right without any actual loss or
damage, the person whose right is infringed has a cause of action. Every person has an absolute right to his
property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per
se. In India, the same principles have been followed
2. The Privy Council has observed that “there may be, where a right is interfered with, injuria sine
damno sufficient to found an action: but no action can be maintained where there is neither
damnum nor injuria.

3. In the leading case of Ashby v. White, (1703) 2 Lord Raym 938, the defendant, a returning
officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified
voter, at a parliamentary election and the candidate for whom the vote was tendered was
elected, and no loss was suffered by the rejection of the vote, nevertheless it was held that an
action lay. In this case the returning officer has acted maliciously.
4. Bhim Singh vs State of J K, AIR 1986 SCC 494 - Plaintiff was an MLA and was wrongfully
arrested while going to assembly session. He was not produced before a magistrate within the
requisite period. It was held that this was the violation of his fundamental rights. Even though
he was released later, he was awarded Rs. 50,000/= as exemplary damages by Supreme
Court.
5. Municipal Board of Agra v Ashrafi Lal (1921) 44 ALL 202. The defendant’s name was
wrongly omitted from the electoral roll and he was deprived of his right to vote. The lower
court ruled in favour of defendant which was affirmed by High Court holding that the act of
omission / refusal of returning officer is an infringement of defendant’s legal right to vote
for which action lies against the person depriving him his right.
M. LEGAL MAXIM - Damnum sine Injuria
1) In cases of damnum sine injuria, i.e., actual and substantial loss without infringement of any
legal right, no action lies. Mere loss in money or money’s worth does not of itself constitute a
tort. The most terrible harm may be inflicted by one man on another without legal redress
being obtainable. There are many acts which, though harmful, are wrongful and give no right
of action. “ Damnum” may be absque injuria.
2) In Gloucester v Grammar School [1441 YB11 Henry IV, 47], defendant set up a rival school to
that of plaintiff with the result, the plaintiff was forced to reduce tuition fees substantially
as the boys were moving out. Plaintiff filed to claim damages.
HELD that plaintiff had no cause of action on the ground that “bona fide” competition can
afford no ground for action. This is a case of ‘damnun sine injuria’.
3) In Quinn v. Leatham, [1901] AC 495, defendant set up a rival school next door to the plaintiff’s
and boys from the plaintiff’s school flocked to defendant’s school. In this case, it was held that
no action could be maintained. Competition is no ground of action whatever damage it may
cause, provided nobody’s legal rights are infringed.
4) In Mayor of Bradford v Pickles (1895) AC 597, When Bradford Corporation refused t buy his
land, the defendant got annoyed and sank a shaft in his own land . This diminished and
discoloured the underground water flowing into plaintiff’s land, who then sued the defendant
on the ground that his conduct was unlawful and dictated my malice.
HELD that the defendant was within his legal rights, and the act though malicious, done in his own
land was not actionable.

5) In Mogul Steamship Co. v McGregor, Gow & Co. (1889) 28 ABD 598. A,B,C & D all ship
owners combined together to drive F, a rival ship owner out of trade, by offering special
concessions to customers who would deal with them to the exclusion of F. The plaintiff(F)
suffered loss and sued A,B, C and D on the ground of conspiracy.
HELD That the defendants had done nothing unlawful, by combining for the purpose of trade
and competition. They acted with lawful purpose of expanding trade and increase profits to
themselves, though the intention was to cause the plaintiff to lose trade.
6) In P.Seetharamayya v Mahalakshmiamma AIR(1958) AP 103, the defendants dug a trench and
put up a bund in their own lands. As a result, rainwater flowed into plaintiff’s land and caused
damage. Plaintiff filed a suit for damages as well as injunction.
HELD Owner of a land has a right to build a fence upon his land to protect damage by overflow
of river, eventhough as a consequence of that act, the overflowing water entered plaintiff’s
land and caused damage. This is a case of “Damnum sine Injuria” and the defendants are not liable.
7) In Town Area Committee v Prabhudayal AIR(1975) ALL 132, the plaintiff constructed some
shops without giving notice to municipal body and without obtaining prior sanction The
defendants demolished these shops. Plaintiff claimed damages which was denied.
HELD by Allahabad High court, on appeal, “that if a person constructs a building illegally, the
demolition of such building by the municipal authorities, though motivated by malice, would
not amount to causing ‘injuria’ to the owner of the property”.
N. MALICE, MOTIVE, INTENTION and FAULT ETC., Some Terminologies in Law of Torts
1. Motive: Refers to an inner drive that signifies the reason for a person’s conduct.
2. Intention: Motive leads to formation of intention, which is the subsequent cause. Intention
signifies full advertence in the mind of a person to his conduct, which is in question, and to its
consequences together with desire for those consequences.
3. Malice: When an act is done with bad intention, it is called ‘malice’.
a) Malice – in - Fact: Refers to performance of an act which may be legal, but with ill-will,
or hatred, or bad intention. Malice in Fact is generally relevant in some specific torts
such as Defamation, malicious prosecution, deceit and conspiracy.
For example, in an action of defamation, if the defendant pleads qualified privilege, the
plaintiff can defeat him by proving malice – in - fact
b) Malice – in - Law: Refers to a wrongful act done intentionally, without just cause or
legal excuse.
4. Malfeasance: Commission of illegal / wrongful act:
Example:- trespass, - which are actionable per se and do not require proof of intention or

motive. It amounts to doing an act that is ought not to be done.

5. Misfeasance: Refers to improper performance of a lawful act.
O. Example: – Negligence. Here neither intention, nor, motive is material.

1. Non-feasance: Refers to Failure to an act which one is legally obliged to do. In other words it
denotes an act of Omission.
2. Fault: Refers to a mistake, or negligence that leads to injury to someone, who has a right of
action in a court of law against the tort-feaser.
Normally tort arises due to a fault. But there are situations where there is no fault - wherein, an
injury happens even when the person has acted without negligence, and or mistake. These are
cases involving strict liability, absolute liability and vicarious liability. In all such cases too, he
will become liable.
Case Law:
Rylands v Fletcher, 1868 LR 3 (HL) 330 - Strict liability
M.C. Mehta v Union of India AIR 1987 SC 1086 - Absolute liability
State of Rajasthan v Vidyawati, AIR 1962 SC 933 - Vicarious liability

LAW OF TORTS NOTES 2019
GENERAL DEFENSES IN TORTS
INTRODUCTION
Before we can proceed to evaluate the circumstances in which a defence can be used in any tort
case it is absolutely essential to understand what the word “defence” means. The word “defence”
bears several meanings in the tort context and a great deal of confusion has been spawned of a
general failure by courts and commentators to make their intended meaning clear. Although
conventionally the word defence is used to refer to those arguments which when used persuades
the court to conclude that the defendant in a case is not guilty. So, they basically include “absent
element defences” which are denials of the components of the tort that the plaintiff has allegedly
committed. Now this can be done in two ways. First the defendant can deny that the tort was
committed or second, the defendant can deny on the grounds of legal sufficiency in the allegations
of the plaintiff, even if a tort has been committed.
Defence can also be used in a stricter sense in the case of “affirmative defences” where the result
in a verdict is for the defendant even if all of the ingredients of the tort that the plaintiff contends
were committed against him are present. Affirmative defences include absolute privilege, abuse of
process, arrest, distress, honest opinion, immunity, limitation bars, necessity, qualified privilege,
recapture of land or chattels, res judicata and self-defence. A defendant who relies on any of these
rules seeks to avoid liability not by denying the plaintiff’s allegations but by going around them.
Then we need to discuss the “remedy restricting rules”. The word defence when used in relation
to these rules encompasses the principles that limit the relief a plaintiff is entitled to. Some remedy
restricting rules cut back the plaintiff’s entitlement to damages, such as the provision for
apportionment for contributory negligence and the doctrine of mitigation of damage. Others
prevent the plaintiff from enjoying particular remedies completely. Examples of the latter type of
remedy restricting rule include the doctrines of laches and acquiescence. The law favours those
who are vigilant and not those who slumber. However it is essential to note that in this case the
defendant is not absolved of liability like the previous two cases.
Another very important point to be discussed while talking about defences in any law is the concept
of “onus of proof”. Historically speaking, the evolution of that particular law is very important in
that aspect. When in any law the burden of proof shifts from one party to another, the use of that
principle of law as a defence is affected. Suppose that X is an affirmative defence to a given tort.
If the legislature enacts a provision that states that the plaintiff bears the onus of disproving X, it
would be stripped of its status as a defence.
These are the four fundamental concepts of defence and the different ways in which it is to be
construed. Now we shall see some of the commonly known and recognised defences to any tort.
The defences discussed in detail are:
1. Consent
2. When plaintiff is the wrongdoer
3. Inevitable accident
4. Act of God
5. Act in relation to Private Defence
6. Necessity
7. Act done in respect to statutory authority
In the discussion of each of these defences I have first given a small introduction of the defence,
followed by the different aspects and conditions required to be fulfilled to successfully use the
defence and then given a brief summary of some of the famous cases relating to that defence.
CONSENT
When a tort is committed, meaning that a defendant’s actions interfered with the plaintiff’s person
or property, a plaintiff’s consent will excuse the defendant of the wrongdoing. Although a
defendant’s conduct may be considered immoral, or harmful, if the plaintiff allows these
interferences to occur, then the defendant is not considered to have committed a tort. Consent
occurs when a plaintiff displays a willingness to participate in the defendant’s conduct. This
consent can be express or implied. One of the most widely stated examples in this sense is that of
a person who is hit by the ball while watching a match in a cricket stadium. The general
understanding here is that when the person bought the ticket to watch the match itself he agreed or
consented to suffer any such damage or face any such risks and so the players or stadium
authorities are absolved from any sort of liability arising out of such an accident.
The defendant may infer consent from the plaintiff’s actions the way any reasonable man would.
In some cases, silence and inaction may manifest consent when it is reasonable to assume that a
person would speak or act if he objected to the defendant’s actions.
Suppose there is a pile of old things that you have kept aside to dispose or give away. Now if some
worker takes an old painting from the pile in your presence and you don’t have any problem with
that then, you cannot later claim the painting and it is reasonable to assume that the servant
obtained your consent before taking it.
Also, if certain behaviour was previously consented in the past, the defendant may continue to
regard this behaviour as acceptable until he is told otherwise. Suppose A owns a library and B his
friend often comes and borrows books without necessarily informing A always and A too doesn’t
have any objections to this, then B can assume that he has A’s consent always and can continue
books unless expressly told not to do so by A.
Consent may not always excuse a defendant of liability. Sometimes consent is ineffective under
certain conditions. If the plaintiff lacks the capacity to consent, is coerced into consenting, or
consents under false pretences, the consent is not valid as a defence to the tort. Incapacity to give
consent may arise due to the factors of insanity, intoxication or infancy. It may also arise due to
temporary abnormalities like someone under the effect of a drug or alcohol or someone who is in
a very stressful situation, or due to a permanent mental illness or disorder. This incapacity must
interfere with the plaintiff’s ability to weigh the benefits and consequences of the defendant’s
suggested conduct. A person suffering from bouts of insanity cannot be expected to be able to give
proper consent and anyone who takes advantage of that fact and puts him under any risk of injury
shall not have the defence of consent.
A case with relation to incapacity to give consent is that of Gillick v West Norfolk & Wisbeck Area
Health Authority . Mrs Gillick was a mother with five daughters under the age of 16. She sought
a declaration that it would be unlawful for a doctor to prescribe contraceptives to girls under 16
without the knowledge or consent of the parent. The court refused to give such a declaration. Lord
Fraser in his judgement said that:
It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively
consent, for example, to have a medical examination of some trivial injury to his body or even to
have a broken arm set. Provided the patient, whether a boy or a girl, is capable of understanding
what is proposed, and of expressing his or her own wishes, I see no good reason for holding that
he or she lacks the capacity to express them validly and effectively and to authorise the medical
man to make the examination or give the treatment which he advises. After all, a minor under the
age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued,
and can give evidence on oath. I am not disposed to hold now, for the first time, that a girl aged
less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on
account of her age. Thus, we can see how the ability to give consent is determined in different
cases with respect to the facts in the given situation.
Consent is usually expressed in law through the Latin phrase “Volenti non fit injuria”. A direct
translation of the phrase is, ‘to one who volunteers, no harm is done’. It is often stated that the
claimant consents to the risk of harm, however, the defence of volenti is much more limited in its
application and should not be confused with the defence of consent in relation to trespass. The
defence of volenti non fit injuria requires a freely entered and voluntary agreement by the
claimant, in full knowledge of the circumstances, to absolve the defendant of all legal
consequences of their actions.
A corollary of this principle is “Scienti non fit injuria” which means that only knowledge of the
risk is not enough to claim defence there must be acceptance to undergo the resultants of the risk
undertaken. There had to be consent and mere knowledge is not sufficient.
In Khimji V. Tanga Mombasa Transport Co. Ltd. the plaintiffs were the personal representatives
of a deceased who met his death while travelling as a passenger in the defendant’s bus. The bus
reached a place where road was flooded and it was risky to cross. The driver was reluctant to
continue the journey but some of the passengers, including the deceased, insisted that the journey
should be continued. The driver eventually yielded and continued with some of the passengers,
including the deceased. The bus drowned with all the passengers aboard. It was held that the
plaintiff’s action against the defendants could not be maintained because the deceased knew the
risk involved and assumed it voluntarily and so the defence of volenti non fit injuria rightly applied.
For the defence to be valid it is necessary that the consent was obtained voluntarily by the plaintiff
and there was no undue influence, misrepresentation or fraud involved.
In the case of R v. Williams the defendant was a singing coach. He told one of his pupils that he
was performing an act to open her air passages to improve her singing but he was actually having
sexual intercourse with her. It was held that her consent was vitiated by fraud. This case has been
used to illustrate the validity of a consent which has been obtained by unfair means.
In another case the claimant sued his employers for injuries sustained while in the course of
working in their employment. He was employed to hold a drill in position whilst two other workers
took it in turns to hit the drill with a hammer. Next to where he was working another set of workers
were engaged in taking out stones and putting them into a steam crane which swung over the place
where the claimant was working. The claimant was injured when a stone fell out of the crane and
struck him on the head. It was said that the claimant may have been aware of the danger of the job,
but had not consented to the lack of care. He was therefore entitled to recover damages.
For a claim of volenti it is necessary that there is an agreement between the parties which may be
express or implied. An implied agreement may exist where the claimant’s action in the
circumstances demonstrates a willingness to accept not only the physical risks but also the legal
risks. In Nettleship v. Weston, Lord Denning said:
“Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive
any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for
any injury that may befall him due to the lack of reasonable care by the defendant: or more
accurately due to the failure by the defendant to measure up to the duty of care which the law
requires of him”.
Also the plaintiff should have complete knowledge of the full nature and extent of risk involved
before giving consent. Lord Diplock in the case Wooldridge v. Sumner] pointed out that, “The
consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable
care that may produce that risk… and requires on the part of the plaintiff at the time at which he
gives his consent full knowledge of the nature and extent of the risk that he ran”.
The conventional understanding about the plea of volenti non fit injuria is that it is an affirmative
defence to liability arising in the tort of negligence.[vii] However, Stephen Sugarman demonstrates
that pleading the volenti maxim is simply a misleading way of asserting that one of the elements
of the action in negligence is absent. The decision of the English Court of Appeal in Murray v
Harringay Arena Ltd can be used to further prove this point. In the given case the plaintiff, who
was six years old at the time, was injured by an errant puck while watching an ice hockey match.
He failed in his bid to recover damages from the owner of the rink because he was found to have
assumed the risk of injury by attending the match.The plaintiff failed not because he consented to
the risk of injury (which was obviously impossible given his age) but because the rink owner was
not negligent with respect to the plaintiff’s safety. The facts coalesce to reveal the absence of fault
on the part of the defendant which is why the defence of consent was successful here.
This principle also applies to injuries caused during contact sports. A participant in sporting events
is taken to consent to the risk of injury which occurs in the course of the ordinary performance of
the sport. But to use this defence it is necessary to show that the rules of the sport were followed
and that the players did not cause more harm than is reasonable in a game. In Blake v Galloway[ix]
the plaintiff and defendant were taking a break from music practice and became involved in “high-
spirited and good natured horseplay”. The plaintiff threw and struck the defendant with a piece of
bark. The defendant, with no intention to cause harm, threw a piece back and struck the plaintiff
in the eye, who suffered significant injury. The judges held that by participating in the game, the
plaintiff must be taken to have impliedly consented to the risk of a blow on any part of his body,
provided that the offending missile was thrown more or less in accordance with the tacit
understanding or conventions of the game. If there are inherent risks in an activity, and someone
consents to participating in the activity, they are held to have impliedly consented to being exposed
to such risks.
In the medical field the importance of consent is very high. The element of consent is one of the
critical issues in medical treatment. The patient has a legal right to autonomy and self
determination enshrined within Article 21 of the Indian Constitution. He can refuse treatment
except in an emergency situation where the doctor need not get consent for treatment. The consent
obtained should be legally valid. A doctor who treats without valid consent will be liable under
the tort and criminal laws. The law presumes the doctor to be in a dominating position, hence the
consent should be obtained after providing all the necessary information. The patient may sue the
medical practitioner in tort for trespass to person in case something goes amiss. Alternatively, the
health professional may be sued for negligence. In certain extreme cases, there is a theoretical
possibility of criminal prosecution for assault or battery.
WHEN PLAINTIFF IS THE WRONGDOER
The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This
defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action
arises from an immoral cause. So an unlawful act of the plaintiff itself might lead to a valid defence
in torts. This maxim applies not only to tort law but also to contract, restitution, property and trusts.
Where the maxim is successfully applied it acts as a complete bar on recovery. It is often referred
to as the illegality defence, although it extends beyond illegal conduct to immoral conduct. This
defence though taken very rarely has been in debate for a long time. The principle of “ex turpi
causa non oritur action”, famously enunciated by Lord Mansfield as long ago as in the case of
Holman v. Johnson. In the case of Ashton v. Turner and another, the claimant was injured when
the defendant crashed the car in which he was a passenger. The crash occurred after they both had
committed a burglary and the defendant, who had been drinking, was driving negligently in an
attempt to escape. Justice Ewbank dismissed the claim holding that as a matter of public policy
the law would not recognise a duty of care owed by one participant in a crime to another. He also
added that even if there was a duty of care the claimant had willingly accepted the risk and
knowingly sat in the car with the defendant. In Stone & Rolls[ a fraudster used a company of which
he was the sole director and shareholder to commit a letter of credit fraud. Following the
company’s insolvency, its liquidators, acting in the company’s name, sued its auditors in
negligence for having failed to detect the fraud. The House of Lords held (by 3-2) that the claim
was barred on the ground ex turpi causa, because the state of mind of the fraudster was to be
attributed to the company, which was thus treated as the perpetrator of the fraud.
The law in Australia on the illegality defence as it applies in the negligence context was, until
recently, more or less identical to that in England. However, this changed when, in Miller v
Miller[xiii], the High Court of Australia held that joint and unilateral illegality cases should be
governed by the same rule. That rule is that no duty of care will be owed to a plaintiff who was
injured while committing an offence if recognising a duty would be inconsistent with the purpose
of the criminal law statute that the plaintiff infringed.
This defence of ex turpi causa can be closely related to the legal maxims “jus ex injuria non oritur”
which means that no right can arise out of a wrong and “Commodum Ex Injuria Sua Nemo
Habere Debet” meaning that a wrongdoer should not be enabled by law to take any advantage
from his actions. We have heard the common phrase that one who approached the courts must
come with clean hands. The defence of illegality is close to this principle and works on the logic
that when a person is doing a wrongful act he need not be helped by the state in getting damages
as this would essentially be against public policy. In the case of National Coal Board v England
Lord Porter had expressly located the ex turpi causa maxim in a public policy rationale. Thus,
wrongdoing on the part of the plaintiff would not necessarily preclude him from bringing a claim
where the court could be satisfied that to provide redress for the plaintiff would not offend against
policy. Considering the reliance on public policy in this principle another issue which arises is the
validity of ex turpi causa as a defence in itself. Some legal jurists are of the opinion that instead
of a defence it should act as a barrier to the claim. In doing so, the public policy rationale is
strengthened through a refusal to recognise the validity of the claim in the first place. This logical
conclusion can be arrived from the judgement in the case of Anderson v Cooke as well.
An important case which raised the questions of the defence of volenti non fit injuria and ex turpi
causa was Pitts v Hunt. After an evening of heavy drinking the unlicensed and uninsured owner
of a motor-cycle drove the cycle on a public road in a reckless and dangerous manner which the
plaintiff, as pillion passenger, was found to have actively encouraged. There was an accident in
which the rider was killed and the plaintiff badly injured. In the plaintiff’s action in negligence,
the judge dismissed the claim against the first defendant, the personal representative of the rider,
on the ground that the rider owned the plaintiff no duty of care, by reason of the maxim ex turpi
causa non oritur actio. He held, further, that although the plaintiff had clearly accepted the risk of
negligence on the rider’s part, s.148(3) of the Road Traffic Act 1972 disentitled the first defendant
from relying on the defence of volenti non fit injuria, and that the plaintiff was 100% contributorily
negligent. The plaintiff appealed.
Lord Beldam said that it followed from the public policy underlying the Road Traffic Acts that the
claim must fail, as if anyone else had been killed the facts would have amounted to manslaughter,
not merely by gross negligence, but by the doing of a dangerous act either with the intention of
frightening other road users or knowing, but for self-induced intoxication, that it was likely to do
so. The judge’s decision on volenti was correct. Since s.1(1) of the Law Reform (Contributory
Negligence) Act 1945 presupposed that before the section could apply there must have been fault
by both parties, and liability then had to be apportioned, the judge’s finding of 100% contributory
negligence was wrong in principle.
Justice Balcombe, concurring, said that in the circumstances the rider owed no duty of care to the
plaintiff. Justice Dillon, also concurring, said that on the facts the plaintiff’s action arose directly
ex turpi causa; it was not a case of merely incidental unlawful conduct.
VIS MAJOR OR ACT OF GOD
Act of God is a defence used in cases of torts when an event over which the defendant has no
control over occurs and the damage is caused by the forces of nature. In such cases the defendant
will not be liable in tort law for such inadvertent damage. Act of God or Vis Major or Force
Majeure may be defined as circumstances which no human foresight can provide against any of
which human prudence is not bound to recognize the possibility, and which when they do occur,
therefore are calamities that do not involve the obligation of paying for the consequences that result
from them. Black’s Law Dictionary defines an act of God as “An act occasioned exclusively by
violence of nature without the interference of any human agency.” A natural necessity proceeding
from physical causes alone without the intervention of man. It is an accident which could not have
been occasioned by human agency but proceeded from physical causes alone.”When a defendant
pleads act of God as an answer to liability, he may deny that he was at fault. Sometimes, however,
the defendant, when he relies on this plea, denies causation. He may concede that he was negligent
but contend that, even if he had taken reasonable care, the damage about which the plaintiff
complains would still have occurred and hence he should not be held guilty for those damages. To
understand this we an illustration can be discussed. Suppose that D, an occupier, negligently omits
to bring a dangerously unstable fence on his property into repair. During a ferocious storm the
fence collapses onto his neighbour’s (P’s) house. P sues D in negligence. D relies on the defence
of Act of God and brings unchallenged expert evidence to show that the storm was so fierce that
even a sturdy fence would have given way. In pleading act of God, D is not denying fault. He is
denying that his fault caused P’s damage. This is a way in which the defence of Vis Major can be
used. The essential conditions that the defendant needs to prove to be able to successfully use the
defence of Act of God are as follows.
Firstly, it is important that the event that occurred was due to the forces of nature or unnatural
circumstances. The event should be proved to be in excess of the normal standards. So only in
cases of heavy torrential rainfall or natural disasters like earthquakes, tsunami etc this defence can
be invoked. A regularly goes to a park and gets injured one rainy day when a branch accidentally
falls on him. The park authorities cannot use the defence of act of god as the rainfall was normal
and they were negligent in not maintain the park during the monsoons when it is reasonably
foreseeable that the trees need more maintenance during the rains to avoid such an event from
occurring.
In the case of Nichols v. Marshland[xvii] the defendant has a number of artificial lakes on his land.
Unprecedented rain such as had never been witnessed in living memory caused the banks of the
lakes to burst and the escaping water carried away four bridges belonging to the plaintiff. It was
held that the plaintiff’s bridges were swept by act of God and the defendant was not liable.
In another case Ryde vs. Bushnell (1967), Sir Charles Newbold observed, “Nothing can be said to
be an act of God unless it is an occurrence due exclusively to natural causes of so extraordinary a
nature that it could not reasonably have been foreseen and the result avoided”.
It is also important to prove that the defendant had no knowledge or could not have done anything
about the event to try and reduce the damages. As set out in Tennant v. Earl of Glasgow
“Circumstances which no human foresight can provide against, and of which human prudence is
not bound to recognize the possibility, and which when they do occur, therefore, are calamities
that do not involve the obligation of paying for the consequences that may result from them” fall
under the category of Act of God.
Greenock Corp. v. Caledonian Railway Co. contrasts with the decision in Nichols. The House of
Lords criticised the application of the defence in Nichols v. Marshland. In this case, the
Corporation obstructed and altered the course of a stream by constructing a padding pool for
children. Due to rainfall of extraordinary violence which would normally have been carried away
by the stream overflowed and caused damage to the plaintiff’s property. It was held that rainfall
was not an Act of God. The House of Lords followed Rylands in holding that a person making an
operation for collecting and damming up the water of a stream must so work as to make proprietors
or occupants on a lower level as secure against injury as they would have been had nature not been
interfered with. Nichols was further distinguished on two bases: the escape in Nichols was from a
reservoir rather than a natural stream, and a jury in Nichols found the flood was due to an act of
God. There had been ‘no negligence in the construction or maintenance of the reservoirs,” and
“the flood was so great that it could not reasonably have been anticipated’.
In the case of Blyth v. Birmingham Water Works Co the defendants had constructed water pipes
which were reasonably strong enough to withstand severe frost. There was an extraordinarily
severe frost that year causing the pipes to burst resulting in severe damage to the plaintiff’s
property. It was held that though frost is a natural phenomenon, the occurrence of an unforeseen
severe frost can be attributed to an act of God, hence relieving the defendants of any liability.
In the Indian case of Ramalinga Nadar v. Narayana Reddiar the plaintiff had booked goods with
the defendant for transportation. The goods were looted by a mob, the prevention of which was
beyond control of defendant. It was held that every event beyond control of the defendant cannot
be said Act of God. It was held that the destructive acts of an unruly mob cannot be considered an
Act of God.
Thus we have seen how the defence of Act of God can be used. Now we shall see another defence
which is very closely related to this one.
INEVITABLE ACCIDENT
An inevitable accident is one which could not have been possibly been avoided by the exercise of
due care and caution. Charlesworth on Negligence, 4th Edn, in paragraph 1183 describes an
‘inevitable accident’ as follows:–
“There is no inevitable accident unless the defendant can prove that something happend over which
he had no control and the effect of which could not have been avoided by the exercise of care and
skill.’
In A. Krishna Patra v. Orissa State Electricity Board, The Orissa High Court defined ‘Inevitable
accident’ as an event which happens not only without the concurrence of the will of the man, but
in spite of all efforts on his part to prevent it.
In the pre nineteenth century cases, the defence of inevitable accident used to be essentially
relevant in actions for trespass when the old rule was that even a faultless trespass was actionable,
unless the defendant could show that the accident was inevitable. This is however not relevant
anymore. The emerging conception of inevitability can be seen most clearly
in Whitelock v.Wherwell, the bolting horse case from 1398. The complaint in Whitelock was
unusual because the plaintiff, rather than just reciting that the defendant had hit him with force and
arms, also alleged that the defendant had “controlled the horse so negligently and improvidently”
that it knocked him down. The defendant conceded that the horse had knocked down the plaintiff,
but pleaded that the plaintiff’s fall was “against the will” of the defendant. The defendant went on
to explain that he had hired the horse without notice of its bad habits, that it ran away with him as
soon as he mounted it, and that he “could in no way stop the horse” although he “used all his
strength and power to control” it. It was a plea of inevitable accident. The collision may have been
inevitable, but it had become inevitable by virtue of the defendant’s negligence, and was thus not
held to be an accident.
In another case, Stanley v. Powell the plaintiff was employed to carry cartridge for a shooting party
when they had gone pheasant-shooting. A member of the party fired at a distance but the bullet,
after hitting a tree, rebounded into the plaintiff’s eye. When the plaintiff sued it was held that the
defendant was not liable in the light of the circumstance of inevitable accident.
In the case of Fardon v. Harcourt-Rivington the defendant parked his saloon motor car in a street
and left his dog inside. The dog has always been quiet and docile. As the plaintiff was walking
past the car, the dog started jumping about in the car, smashed a glass panel, and a splinter entered
into the plaintiff’s left eye which had to be removed. Sir Frederick Pollock said: “People must
guard against reasonable probabilities but they are not bound to guard against fantastic
possibilities” In the absence of negligence, the plaintiff could not recover damages.
The use of inevitable accident in early actions interpreted inevitability as impracticality. In the
present scenario, to speak of inevitable accident as a defence, therefore, is to say that there are
cases in which the defendant will escape liability if he succeeds in proving that the accident
occurred despite the use of reasonable care on his part, but is also to say that there are cases in
which the burden of proving this is placed upon him. In an ordinary action for negligence, for
example, it is for the claimant to prove the defendant’s lack of care, not for the defendant to
disprove it, and the defence of inevitable accident is accordingly irrelevant and it is equally
irrelevant in any other class of case in which the burden of proving the defendant’s negligence is
imposed upon the claimant.
There was a major shift in the use of inevitable accident as a defence after the rule of strict liability
was evolved after Rylands v. Fletcher. The plea of inevitable accident lost its utility in cases
involving accidents in any enterprise dealing with hazardous substances or which is inherently
dangerous. As laid down in M C Mehta v. Union of India, inevitable accident in any form is no
defence to a claim based on the rule of strict liability which is not subjected to any exception.
ACTS DONE FOR PRIVATE DEFENCE
Every individual has the right to protect his life and his property and in doing so he may use certain
amount of force if necessary. This right doesn’t extend to protecting just yourself and your own
family members but all other people and their property in general. The law of torts recognises this
right and so any act done by a person in exercise of this act will not give rise to a tortiuous liability.
To use this defence three conditions need to be satisfied. Firstly, there must be a real and imminent
threat to the defendant. A very widely stated illustration in this reference is where a ferocious dog
starts barking violently at you but doesn’t bite. And then when it turns back and starts walking
away if you hit it or throw a stone at it you cannot claim private defence. This is because the dog
was no longer a threat to you after it turned away and started walking back and so the act committed
by you is wrong and cannot be justified under the defence of private defence.
Also it needs to be shown that the force used was only for the purpose of protection or private
defence and not for revenge. There should be no mala fide or bad intention involved for a
successful private defence claim. Example: A and B lived in houses adjacent to each other and
were not in very good terms. One day A’s cow entered B’s house and destroyed some of his plants.
B gets angry and shoos the cow away, but later he plans to take revenge on A and shoots at it. He
claims he did this in private defence but this claim shall fail because it is evident that he used more
force than that was necessary and had wrong intentions while doing the act. This brings us to the
third essential component of the defence of private defence, which is, the force used by the
defendant should be in proportion to the act committed and enough to ward off the imminent
danger. Suppose a person installs an electric wired fence around his property to keep away
trespassers without any warning signs at all. He is not only doing an act which is grossly negligent
but also he doesn’t have the right to claim private defence as the means used are way more
dangerous than required.
In case of protection of property it is essential that the person must be in possession of the property
at the time of the incident. It means that if a person is staying in a house on rental then he has the
right to defend the property in which he is staying. The owner also has such right but he must be
in possession of the property. A person who does not have possession of the land may use
reasonable force against persons who obstruct him in carrying out his own duties. In case of
trespass one must use reasonable force in the course of protecting the property.
The case of Bird v. Holbrook, deals with the defence of protection of property. Holbrook, the
defendant set up a spring-gun trap in his garden in order to catch an intruder who had been stealing
from his garden. He did not post a warning. Bird, the petitioner chased an escaped bird into the
garden and set off the trap, suffering serious damage to his knee. Bird sued Holbrook for damages.
It was held that while setting traps or “man traps” can be valid as a deterrent when notice is also
posted, D’s intent was to injure someone rather than scare them off. Hence he was held liable.
The famous case of Morrisv. Nugent , discusses the importance of the presence of a threat at the
time when the act of private defence is committed. In the case as the defendant was passing by a
house the defendant’s dog came and bit him. When the defendant turned around and raised his gun
the dog ran away but he shot the dog anyway. It was held that the defendant’s act was not justified
as there was no real threat at the time the defendant shot and so he could not claim the plea of
private defence.
The idea behind this principle is that it is the State that shall mete out punishment for the wrong
doer and the defendant cannot use force to that effect. He only has the right to defend himself and
cannot do anything further than that.
ACT DONE IN RESPECT TO STATUTORY AUTHORITY
When the commission of what would otherwise be a tort, is authorized by a statute the injured
person is remediless. This is unless legislature has thought it proper to provide compensation to
him. The statutory authority extends not merely to the act authorized by the statute but to all
inevitable consequences of that act. But the powers conferred by the legislature should be exercised
with judgment and caution so that no unnecessary damage is done, the person must do so in good
faith and must not exceed the powers granted by the statute otherwise he will be liable.
For example, if there is a railway line near your house and the noises of the train passing disturbs
then you have no remedy because the construction and the use of the railway is authorized under
a statute. However, this does not give the authorities the license to do what they want
unnecessarily; they must act in a reasonable manner. It is for this reason that we see that there are
certain guidelines that need to be followed during construction of public transport facilities.
The philosophy behind this principle is that the lesser private rights must yield to the greater public
good. Hence the state and people working for the state are given certain immunity and are allowed
to do acts in pursuance of the public order even if they may lead to tortious liability. The extent to
which this immunity is available to a public authority depends on whether the authority is absolute
or conditional.Such a condition may be express or implied. In case of absolute statutory authority

the immunity is available against both the act and its natural consequences. If absolute, then the
authority is not liable provided it has acted reasonably and there is no alternative course of action.
In Kasturi Lal v. State of UP, the plaintiff had been arrested by the police officers on a suspicion
of possessing stolen property. On a search of his person, a large quantity of gold was found and
was seized under the provisions of the Code of Criminal Procedure. Ultimately, he was released,
but the gold was not returned as the Head Constable in charge of the malkhana (wherein the said
gold was stored) had absconded with the gold. The plaintiff thereupon brought a suit against the
State of UP for damages for the loss caused to him. It was found by the courts below, that the
concerned police officers had failed to take the requisite care of the gold seized from the plaintiff,
as provided by the UP Police Regulations. When the matter was taken to the Supreme Court, the
court found, on an appreciation of the relevant evidence, that the police officers were negligent in
dealing with the plaintiff’s property and also, that they had also not complied with the provisions
of the UP Police Regulations in that behalf. In spite of the said holding, the Supreme Court rejected
the plaintiff’s claim, on the ground that “the act of negligence was committed by the police officers
while dealing with the property of Ralia Ram, which they had seized in exercise of their statutory
powers. The power to arrest a person, to search him and to seize property found with him, are
powers conferred on the specified officers by statute and in the last analysis, they are powers which
can be properly categorized as sovereign powers; and so, there is no difficulty in holding that the
act which gave rise to the present claim for damages has been committed by the employee of the
respondent during the course of its employment; but the employment in question being of the
category which can claim the special characteristic of sovereign power, the claim cannot be
sustained.”
In Metropolitan Asylum District Board v. Hill, a local authority being empowered by a statute to
erect a small-pox hospital was restrained from erecting it at a place where it was likely to prove
injurious to the residents of the locality. The authority to construct a hospital was construed as
impliedly conditional only, i.e. to erect the hospital provided that the hospital authorities selected
a site where no injurious results were likely to be caused to others.
Thus we have seen how the various general defences in torts can be used. Apart from these
defences there are others too which are sometimes used. Death for example is now used as a
defence only in cases of defamation alone. And truth is widely used as an affirmative defence in
defamation cases too. Mistake is a fault negating absent element defence to torts that require proof
of certain states of mind or negligence on the part of the defendant. The defence of act of third
party can function as a causation denying absent element defence. Consider the tort of private
nuisance. In order to establish liability in this tort the plaintiff must be able to show that his right
to enjoy his land was unreasonably interfered with and that the defendant was responsible for the
interference. The defendant can prevent the plaintiff from discharging his onus by demonstrating
that the nuisance was caused by a third party. Thus, defendants have been absolved of liability in
nuisance in respect of interferences on their land consisting in falling roof tiles and burning refuse
on the basis that third parties were responsible for creating them
VICARIOUS LIABILITY OF STATE
Vicarious Liability: An Introduction
Vicarious Liability deals with cases where one person is liable for the acts of others. So in a case
of vicarious liability both the person at whose behest the act is done as well as the person who does
the act are liable. Thus, Employers are vicariously liable for the torts of their employees that are
committed during the course of employment. The common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.
(4) Liability of the State or Liability of the Administration.
Constituents of Vicarious Liability
So the constituents of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
Vicarious Liability of the State: Introduction
The term ‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what
extend the administration would be liable for the torts committed by its servants is a complex
problem especially in developing countries with ever widening State activities. The liability of the
government in tort is governed by the principles of public law inherited from British Common law
and the provisions of the Constitution. The whole idea of Vicariously Liability of the State for the
torts committed by its servants is based on three principles:
• Respondeat superior (let the principal be liable).

• Quifacit per alium facit per se (he who acts through another does it himself).
• Socialisation of Compensation.
Position in England: Under the English Common Law the maxim was “The King can do no
wrong” and therefore, the King was not liable for the wrongs of its servants. But, in England the
position of old Common law maxim has been changed by the Crown Proceedings Act, 1947.
Earlier, the King could not be sued in tort either for wrong actually authorised by it or committed
by its servants, in the course of employment. With the increasing functions of State, the Crown
Proceedings Act had been passed, now the crown is liable for a tort committed by its servants just
like a private individual. Similarly, in America, the Federal Torts Claims Act,1946 provides the
principles, which substantially decides the question of liability of State.
Position in India: Unlike Crown Proceedings Act, 1947(England), we do not have any statutory
provisions mentioning the liability of the State in India. The law in India with respect to the liability
of the State for the tortious acts of its servants has become entangled with the nature and character
of the role of the East India Company prior to 1858. It is therefore necessary to trace the course of
development of the law on this subject, as contained in article 300 of the Constitution. The position
of State liability as stated in Article 300 of the Constitution is as under: Clause (1) of Article 300
of the Constitution provides first, that the Government of India may sue or be sued by the name of
the Union of India and the Government of a State may sue or be sued by the name of the State;
secondly, that the Government of India or the Government of a State may sue or be sued in relation
to their respective affairs in the like cases as the Dominion of India and the corresponding
Provinces or the corresponding Indian States might have sued or be sued, “if this Constitution had
not been enacted”, and thirdly, that the second mentioned rule shall be subject to any provisions
which may be made by an Act of Parliament or of the Legislature of such State, enacted by virtue
of powers conferred by the Constitution.
Consequently, one has to uncover the extend of liability of the East India Company in order to
understand the liability parameters of the administration today because the liability of the
administration today is in direct succession to that of the East India Company. The East India
Company launched its career in India as a purely commercial corporation but gradually acquired
sovereignty. Therefore, in the beginning, the company did not enjoy the immunity of the Crown.
It was only when it acquired political powers that a distinction was made between sovereign and
non- sovereign functions.
Pre-Constitution Judicial Decisions:
• Peninsular and Oriental Steam Navigation Company v. Secretary of State for India
A consideration of the pre-Constitution cases of the Government’s liability in tort begins with the
judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation Co. v. Secretary
of State. The principle of this case holds that if any act was done in the exercise of sovereign
functions, the East India Company or the State would not be liable. It drew quite a clear distinction
between the sovereign and non-sovereign functions of the state. The facts of the case were that a
servant of the plaintiff’s company was travelling from Garden Reach to Calcutta in a carriage
driven by a pair of horses. The accident took place when the coach was passing through the
Kidderpore Dockyard which was Government Dockyard. Some workman employed in the
Government, Dockyard were carrying a heavy piece of iron for the purpose of repairing a steamer.
The men carrying the iron-rod were walking along the middle of the road. When the carriage of
the plaintiff drove up nearer the coachman slowed its speed. The man carrying the iron attempted
to get out of the way, those in front tried to go the one side of the road while those behind tried to
go the other side of the road. The consequence of this was a loss of the time, brought the carriage
close up to them before they had left the center of the road. Seeing the horses and carriage they
got alarmed and suddenly dropped the iron and ran away. The iron fell with a great noise resulting
in injuries to one horse, which startled the plaintiff’s horses which thereupon rushed forward
violently and fell on the iron. The Company filed a suit against the Secretary of State for lndia for
the damages for injury to its horse caused by the negligence of the servants employed by the
Government of India. The Supreme Court of Calcutta by Sir Barnes Peacock C. J. held that the
Secretary of State for lndia was liable for the damages caused by the negligence of Government
servants, because the negligent act was not done in the exercise of a sovereign function. The Court
drew a distinction between acts done in exercise of “non-sovereign power” that is, acts done in the
conduct of undertakings which might be carried on by private person-individuals without having
such power. The liability could only arise in case of “non-sovereign functions”. The East lndia
Company had a two-fold character –
(a) as a sovereign power and
(b) as a trading company.
The liability of the Company could only extend to in respect of its commercial dealings and not to
the acts done by it in exercise of delegated sovereign power. In the present case, the damage was
done to the plaintiff in the exercise of non-sovereign function, i.e. the maintenance of Dockyard
which could be done by any private individual without any delegation of sovereign power and
hence the Government was liable for the torts of the employees. The Secretary of State was not
liable for anything done in the exercise of sovereign powers.
• Nobin Chandra Dey v. Secretary of State for India
This doctrine of immunity, for acts done in the exercise of sovereign functions, was applied by the
Calcutta High Court in Nobin Chander Dey v. Secretary of State. The plaintiff in this case
contended that the Government had made a contract with him for the issue of a licence for the sale
of ganja and had committed breach of the contract. The High Court held that upon the evidence,
no breach of contract had been proved. Secondly even if there was a contract, the act had been
done in exercise of sovereign power and was thus not actionable.
• Secretary of State v. Hari Bhanji
In this case, the Madras High Court held that State immunity was confined to acts of State. In the
P & O Case, the ruling did not go beyond acts of State, while giving illustrations of situations
where the immunity was available. It was defined that Acts of State, are acts done in the exercise
of sovereign power, where the act complained of is professedly done under the sanction of
municipal law, and in exercise of powers conferred by law. The mere fact that it is done by the
sovereign powers and is not an act which could possibly be done by a private individual does not
oust the jurisdiction of the civil court. The Madras judgment in Hari Bhanji holds that the
Government may not be liable for acts connected with public safety, even though they are not acts
of State.
Post Constitution Judicial Decisions
• State of Rajasthan v. Vidyawati
The respondents filed a suit for the damages made by an employee of a State and the case
questioned whether the State was liable for the tortious act of its servant – The Court held that the
liability of the State in respect of the tortious act by its servant within the scope of his employment
and functioning as such was similar to that of any other employer.
It was held in this case that the State should be as much liable for tort in respect of tortuous acts
committed by its servant within the scope of his employment and functioning as such, as any other
employer.
The facts of this case may shortly be stated as follows. In that case, the claim for damages was
made by the dependants of a person who died in an accident caused by the negligence of the driver
of a jeep maintained by the Government for official use of the Collector of Udaipur while it was
being brought back from the workshop after repairs. The Rajasthan High Court took the view-that
the State was liable, for the State is in no better position in so far as it supplies cars and keeps
drivers for its Civil Service. In the said case the Hon’ble Supreme Court has held as under:
“Act done in the course of employment but not in connection with sovereign powers of the State,
State like any other employer is vicariously liable.”
In the aforesaid case, the Hon’ble Apex Court while approving the distinction made in Steam
Navigation Co.’s case between the sovereign and non-sovereign function observed that the
immunity of crown in the United Kingdom was based on the old feudalistic notions of Justice,
namely, that the King was incapable of doing a wrong. The said common law immunity never
operated in India.
• Kasturi Lal v. State of U.P.
The ruling in this case was given holding that the act, which gave rise to the present claim for
damages, has been committed by the employee of the respondent during the course of its
employment. Also, that employment belonged to a category of sovereign power. This removed
any liability on the part of the state. In this case, the plaintiff had been arrested by the police officers
on a suspicion of possessing stolen property. Upon investigation, a large quantity of gold was
found and was seized under the provisions of the Code of Criminal Procedure. Ultimately, he was
released, but the gold was not returned, as the Head Constable in charge of the maalkhana, where
the said gold had been stored, had absconded with the gold. The plaintiff thereupon brought a suit
against the State of UP for the return of the gold or alternatively, for damages for the loss caused
to him. It was found by the courts below, that the concerned police officers had failed to take the
requisite care of the gold seized from the plaintiff, as provided by the UP Police Regulations. The
trial court decreed the suit, but the decree was reversed on appeal by the High Court. When the
matter was taken to the Supreme Court, the court found, on an appreciation of the relevant
evidence, that the police officers were negligent in dealing with the plaintiff’s property and also,
that they had not complied with the provisions of the UP Police Regulations. However, the
Supreme Court rejected the plaintiff’s claim, on the ground that “the act of negligence was
committed by the police officers while dealing with the property of Ralia Ram, which they had
seized in exercise of their statutory powers. The power to arrest a person, to search him and to
seize property found with him, are powers conferred on the specified officers by statute and they
are powers which can be properly categorized as sovereign powers. Hence the basis of the
judgment in Kasturi Lal was two-fold – The act was done in the purported exercise of a statutory
power. Secondly, the act was done in the exercise of a sovereign function.
• State of M.P. v. Chironji Lal
A new question came before the court relating to the payment of damages for the loss caused by
the lathi-charge of the police in a situation where it was unauthorized and unwarranted by law. It
was alleged that the police resorted to lathi-charge willfully and without any reasonable cause and
thus damaged the plaintiff’s property. The claim was rejected on the ground that the function of
the state to regulate processions and to maintain law and order is a sovereign function.
• Satyawati Devi v. Union of India
The Delhi High Court held that the carrying of a hockey team in a military truck to the Air Force
Station to play a match is not a sovereign function. In this case an Air Force vehicle was carrying
hockey team of Indian Air Force Station to play a match. After the match was over, the driver was
going to park the vehicle when he caused the fatal accident by his negligence. It was argued that
it was one of the functions of the Union of lndia to keep the army in proper shape and tune and
that hockey team was carried by the vehicle for the physical exercise of the Air Force personnel
and therefore the Government was not liable. The Court rejected this argument and held that the
carrying of hockey team to play a match could by no process of extension be termed as exercise
of sovereign power and the Union of lndia was therefore liable for damages caused to the plaintiff.
• Union of India v. Sugrabai
The Bombay High Court held that the transporting of military equipment from the workshop of
the Artillery School is not a sovereign function.
The Bombay High Court overruled the plea of sovereign immunity when a military driver driving
a motor truck carrying a Records Sound Ranging machine from military workshop to military
school of artillery killed a cyclist on the road. It was held that the driver was not acting in exercise
of sovereign powers. The Bombay High Court observed in following words:
“Sovereign powers are vested in the State in order that it may discharge its sovereign functions.
For the discharge of that function one of the sovereign powers vested in the State is to maintain
an army. Training of army personnel can be regarded as a part of the exercise of that sovereign
power. The State would clearly not be liable for a tort committed by an army officer in the exercise
of that sovereign power. But it cannot be said that every act which is necessary for the discharge
of a sovereign function and which is undertaken by the State involves an exercise of sovereign
power. Many of these acts do not require to be carried out by the State through its servants. In
deciding whether a particular act was done by a Government servant in discharge of a sovereign
power delegated to him, the proper test is whether it was necessary for the State for the proper
discharge of its sovereign function to have the act done through its own employee rather than
through a private agency.”
• Khatri(II) v. state of bihar
An important question was raised regarding liability of government for wrongful arrest and
detention. Moving ahead in the direction of new dimension of the right to life and personal liberty,
Justice Bhagwati said: “Why should the court not be prepared to forge new tools and devise new
remedies for the purpose of vindicating the most precious of the precious fundamental rights to
life and personal liberty.” It may be noted that the Government of India have not signed treaty
which provides for compensation for wrongful arrest and detention. This amply proves the lack of
government’s concern for the precious of the precious rights of the people for the sake of
discounting its own inefficiency and lawlessness.
• Rudal Shah v. State of Bihar
In this case it was laid down a most important principle of compensation against government for
the wrong action of its official the important judgement was handed down by the Supreme Court
against the Bihar Government for the wrongful and illegal detention of Rudal Shah in Muzaffarpur
jail for as many as 14 yrs after he was acquitted by the Sessions Court in June 1968. The Court
ordered compensation of Rs 30,000 for the injustice and injury done to Rudal Shah and his helpless
family.
• Bhim Singh v. State Of Jammu And Kashmir
In this case the Court awarded exemplary cost of Rs 50,000 on account of the authoritarian manner
in which the police played with the liberty of the appellant.
• Saheli, A Women’s Resources v. Commissioner Of Police
Saheli v. Commissioner of Police was another milestone in the evaluation of compensation

urisprudence in writ courts. The masterpiece judgement in Vidyawati, which was freezed by asturi
Lal was rightly quoted in this case. The State was held liable for the death of nine year old child
by Police assault and beating. Delhi Administration was ordered to pay compensation of Rs.
75000/-. The significance of this case is that firstly, the revival of Vidyawati ratio and secondly
that the Delhi Administration was allowed to recover money from those officers who are held
responsible for this incident.
• Common Cause, A Registered Society v. Union of India
The Supreme Court emphatically stressed that Kasturi Lal case, apart from being criticized, not
been followed by the Court in subsequent cases, and therefore, much of its efficacy as a binding
precedent has been eroded. In this case the entire history relating to the institution of suits by or
against the State or, to be precise, against Government of India, beginning from the time of East
India Company right up to the stage of Constitution, was considered and the theory of immunity
was rejected. In this process of judicial advancement, Kasturi Lal’s case has paled into
insignificance and is no longer of any binding value.
Conclusion
In all the cases discussed before, the entity sought to be made liable is not the government but the
State. So far as the government is concerned, it may well say that the statutory authority is neither
accountable nor subordinate to it. Hence the government cannot be visited with the consequences
flowing from a wrong order made by a statutory authority. As far as the State is concerned, it
cannot put forward any such plea inasmuch as the statute is enacted by it by Legislature. The
appointment of the authority is also done either by the Statute itself or by such authority as may
be authorised by the Statute. The act of the statutory authority in such a case is an act done for and
on behalf of the State. Hence the state is held liable. State’s liability for the acts or omissions of
statutory authorities arises only in cases where the statutory authority acts outside his legal
authority while purporting to act pursuant to the legal authority conferred upon him and the act or
omission, which causes or results in damage to a person, is not within the ambit of the statutory
protection, if any, contained in such enactments. This rule is evolved for the obvious reason that
an act done under a statute and in accordance with the statute can never amount to a tort as was
said by the Supreme Court by following cases. The Court said “A result flowing from a Statutory
provision is never an evil”. “The Government of India may sue or be sued by the name of the
Union of India and the Government of a State may sue or be sued by the name of the State and
may, subject to any provisions which may be made by Act of Parliament or of the Legislature of
such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to
their respective affairs in the like cases as the Dominion of India and the corresponding Provinces
or the corresponding Indian States might have sued or been sued if this Constitution had not been
enacted.”
NO FAULT LIABILITY
RULE OF STRICT LIABILITY
Strict liability is the principle which evolved from case of Rylands v Fletcher in the year 1868.
This principle clearly states that a person who keeps hazardous substances in his premises, is
responsible for the fault if that substance escapes in any manner and causes damages. This principle
stands true if there was no negligence on the side of the person keeping it and the burden of proof
always lies on the defendant to prove how he is not liable.
Facts: There were two men living next to each other, Rylands and Fletcher. Fletcher owned a mill
for whose energy requirement; he constructed a water reservoir on his land. To get this work done,
he had hired independent contractors and engineers. There were old unused shafts under the site
of the reservoir which the engineers didn’t notice and thus did not block them. Due to the
negligence of the contractors, the shafts that led way to Rylands’ land burst when water was filled
in the reservoir. This caused huge damage and loss to Ryland as the water entered into his coal
mine. Thus, Ryland filed a suit against Fletcher.
Issues: The issue was very concise and straight. Can the defendant be held liable for the act of
someone else due to which an entity on his land escapes without his negligence or intention?
The defendant took the defence that that it was not his fault but the contractors’. His being liable
for the damage, the cause of which was unknown to him was not acceptable to him.
Judgment: The house of the Lords rejected the plea of the defendant and claimed him to be liable
for all the damages to Rylands.
Per Lord Cairns: “On the other hand if the Defendants, not stopping at the natural use of their
close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of
introducing into the close that which in its natural condition was not in or upon it, for the purpose
of introducing water either above or below ground in quantities and in a manner not the result of
any work or operation on or under the land, – and if in consequence of their doing so, or in
consequence of any imperfection in the mode of their doing so, the water came to escape and to
pass off into the close of the Plaintiff, then it appears to me that that which the Defendants were
doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to
which I have referred, the evil, namely, of the escape of the water and its passing away to the close
of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my opinion, the
Defendants would be liable.”
According to the rule set by this case, if a person brings on his land and keeps there any dangerous
thing, a thing which is likely to do mischief if it escapes, he will be prima facie answerable to the
damage caused by its escape even though he had not been negligent in keeping it there. The liability
arises not because there was any fault or negligence on the part of a person, but because he kept
some dangerous thing on his land and the same has escaped from there and caused damage. Since,
in such a case the liability arises even without any negligence on the part of the defendant, it is
known as the rule of strict liability.
Therefore, this is one of the most important landmark judgements in the history of the legal system
since it led to the formulation of a new concept, a new idea and thus a new principle- the rule of
the strict liability. Based upon his principles, there were certain qualifications given to decide
whether a liability is strict liability or not. Only after these essential qualifications being satisfied,
a liability can be termed as strict liability.
ESSENTIALS OF STRICT LIABILITY
Dangerous Thing
This simply means that the defendant will be liable for the damages only when the thing that
escaped from his premises was a dangerous thing. The word ‘dangerous’ here implies that it is
likely to do any sort of mischief if it escapes from the land of the defendant. In the case studied
above, the dangerous thing was the collected water in the reservoir on Fletcher’s land. The rule
specifies that things like gas, electricity, explosives, flag pole, noxious fumes, vibrations, yew
trees, sewage and even rusty wires can also be termed as dangerous if escapes from the premises
of the owner.
Escape
It is also essential that the thing causing harm must escape from the premises of the defendant. It
should not be within the reach of the defendant after its escape. For example, if the poisonous
plants growing on the defendant’s land escapes and enters the plaintiff’s land and is then eaten up
by the cattle on the plaintiff’s land, the defendant is liable for the damages caused to the cattle of
the plaintiff. On the other hand, if the plaintiff’s cattle themselves enter the land of the defendant
and eat the poisonous plants and die, the defendant will not be liable since there was no escape of
his property. The case of Read v Lyons & co. shows that the defendant is not liable if there is no
escape. In this case, the plaintiff, Read was an employee in the defendant’s ammunition factory.
While she was working in the premises of the defendant, a shell exploded and the plaintiff was
severely injured. The defendant could not be held negligent since there was no negligence on his
part. Even the rule of Rylands vs. Fletcher didn’t apply here since the dangerous thing, the shell,
had not escaped from the premises of the defendant. Thus, Lyons & co. was not held liable whereas
in the case of Rylands vs. Fletcher, the dangerous thing, the water had escaped from the
defendant’s premises. In the case of Ponting vs. Noakes, the claimant’s horse died after it had
reached over the defendant’s fence and ate some leaves from a Yew tree. The defendant was not
liable under Rylands v Fletcher as the Yew tree was entirely in the confines of the defendant’s land
and there had therefore been no escape.
Non-Natural Use Of Land
In the landmark case, the water collected constituted the non-natural use of land. Keeping water
for domestic purposes is natural use but keeping water for use in the mill is non-natural use of
land. For the use to be non-natural, it must be some special use bringing with it increased danger
to others, and must not merely by the ordinary use of land or such a use as is proper for the general
benefit of community. Electric wiring in the house, electric wiring in the shops, supply of gas in
gas pipes in a dwelling house and water installation in a house are other examples of the natural
use of land. In the case of Sochacki vs. Sas, the defendant was a lodger in the claimant’s house.
He lit an open fire in his room and then went out. Unfortunately a spark jumped from the fire and
set the room alight. The fire spread to the rest of the house and the claimant brought an action
against the defendant based on liability arising under Rylands v Fletcher. It was held that the
defendant was not liable. Whilst the fire was likely to do mischief if it escaped, the use of an open
fire in the claimant’s fireplace was not considered a non-natural use of landThis case clearly
explains the conditions when the use of the land by the defendant can be described as non-natural
use and when not.
These are the three basic essentials for the applicability of the rule of strict liability. If the three
cases are satisfied well in the case, then the defendant will be held liable for the tort under the tort
of ‘strict liability’ and following the ‘no fault liability principle’.
EXCEPTIONS TO THE RULE OF STRICT LIABILITY
Strict liability evolved from the Rylands v Fletcher case in the English court in the year 1868. This
principle clearly states that a person, who keeps hazardous substances in his premises, is
responsible for the fault if that substance escapes in any manner and causes damages. This principle
stands true if there was no negligence on the side of the person keeping it and the burden of proof
always lies on the defendant to prove how he is not liable. However there are certain exceptions
to this rule. These exceptional rules have been recognized by the Rylands v Fletcher case and later
cases. The exceptions are as follows:
Plaintiff’s Own Fault
If somehow the plaintiff himself enters into the land of the defendant and injures himself and then
claims for damages, he is not liable for the damages since he himself went forward to the dangerous
thing. . In the case of Ponting v Noakes(1994), the claimant’s horse died after it had reached over
the defendant’s fence and ate some leaves from a Yew tree. The defendant was not liable under
Rylands v Fletcher as the Yew tree was entirely in the confines of the defendant’s land and there
had therefore been no escape. The plaintiff cannot recover anything if the damage was caused due
to the unusual sensitiveness of the plaintiff’s apparatus and such damage won’t cause any harm to
a person carrying ordinary business there. Until and unless there is ‘escape’ of the dangerous thing
or the land of the defendant is being used for non-natural purposes for an ordinary person, the
defendant can’t be held liable.
Act Of God
An act of God can be defined as an event that directly and exclusively results from the occurrence
of natural causes that could not have been prevented by the exercise of foresight or caution. In the
context to the strict liability, if the escape was unforeseen and without any human intervention,
caused by some super natural force, then the defendant will not be liable for the damages. For
instance, in the case of Nichols v Marsland, this defence was successfully pleaded. In this case,
the defendant built up a dam in the natural stream flowing on his land to create artificial lakes
there. Unfortunately, that land faced heavy rainfall that year. The rainfall was extra ordinary and
unforgettable. Due to the rain, the embankments of the artificial lakes gave away. The rush of the
water down the stream washed away the bridges of the plaintiff. It was held that the defendant was
not liable.
Consent Of The Plaintiff
In this exception, there is no common benefit to the defendant and the plaintiff, as in the case of
volenti non fit injuria. For example, if the plaintiff and the defendant are neighbours and share the
same water source on the land of the defendant, if any damage is caused to the plaintiff due to that
collected water, the defendant won’t be liable. On the other hand, when a festival is organized and
the display of fireworks causes damages to the crowd, the organizers will be liable since the display
will not be deemed to be conducted for the benefit of all.
Act of Third Party
The rule of strict liability doesn’t apply when the damages is caused due to the act of a stranger. A
stranger will be a person who is not the servant of the defendant nor is under the control of the
defendant. However, if the act of the stranger can be foreseen by the defendant, due care must be
taken by the defendant to avoid the damages. In the case of Box v Jabb, the reservoir of the
defendant overflowed because of a blockage in the drains by strangers. Thus, the court did not
claim the defendant to be liable.
Statutory Authority
An act done under the authority of the statute is a very strong defence to an action for tort.
However, the defence cannot be pleaded if the if there is any kind of negligence on the part of the
defendant who is under statutory authority. In the Green v
Chelsea Co. (1894), the defendant company had a statutory duty to maintain continuous supply of
water. A main belonging to the company burst without any negligence on its part, as a consequence
of which the plaintiff’s premises were flooded with water. It was held that the company was not
liable as the company was engaged in performing a statutory duty.
RULE OF ABSOLUTE LIABILITY
The rule of absolute liability was evolved in the case of M.C.Mehta v Union of India. This was a
very important landmark judgment that brought in a new rule in the history of the Indian Law. The
rule held that where an enterprise is engaged in a hazardous or inherently dangerous activity and
it harm results to anyone on account of an accident in the operation of such hazardous or inherently
dangerous activity resulting, the enterprise is strictly and absolutely liable to compensate to all
those who are affected by the accident.
Facts: In the city of Delhi, there was severe leakage of oleum gas on the 4 th and the 6th of December,
1985. This took place in one of the units of Shriram Foods and Fertilizers Industries belonging to
the Delhi Cloth Mills Ltd. due to this, an advocate practicing in the Tis Hazari Court had died and
many others were affected by the same. The action was brought through a writ petition by way of
public interest litigation (PIL). In Indian law, public interest litigation means litigation for the
protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved
party but by the court itself or by any other private party. It is not necessary, for the exercise of the
court’s jurisdiction, that the person who is the victim of the violation of his or her right should
personally approach the court. Public interest litigation is the power given to the public by courts
through judicial activism. However, the person filing the petition must prove to the satisfaction of
the court that the petition is being filed for a public interest and not just as a frivolous litigation by
a busy body
Issue: The issue raised was a very strong issue. It said that if all these tragedies follow the rule of
strict liability, they will come under the exceptions laid down for Rylands v Fletcher case.
Judgment: The Supreme Court took a very bold decision to evolve a new rule fit for the economic
and social conditions prevailing in India. The rule of absolute liability was then formed in
preference to the rule of strict liability. This rule ignored all the exceptions in the Rylands v
Fletcher case.
The rule clearly held that where an enterprise is engaged in a hazardous or inherently dangerous
activity and it harm results to anyone on account of an accident in the operation of such hazardous
or inherently dangerous activity resulting, the enterprise is strictly and absolutely liable to
compensate to all those who are affected by the accident and such liability is not subject to any of
the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in
Rylands v Fletcher
ABSOLUTE LIABILITY = STRICT LIABILITY – EXCEPTIONS
The court gave two basic reasons justifying the rule:
1. Any enterprise carrying on hazardous activities for private profits have the social
responsibility to compensate those suffering from any accident and it should absorb such
loss as an item of overhead expenses.
2. The enterprise alone has the resources to discover and guard against such hazards and
dangers.
This is the clear explanation of the absolute liability or the rule of M.C.Mehta v Union of India.
The court also laid down the measures of compensation to be paid by the enterprise. It said that
the larger and more prosperous the enterprise, the greater must be the amount of compensation
payable by it for the harm caused on account of an accident in the carrying on of the hazardous or
dangerous activity by the enterprise.
THE BHOPAL GAS TRAGEDY
The Bhopal Gas Tragedy is one of the most devastating accidents in the history. It was a mass
disaster caused by the leakage of Methyl Isocyanate (MIC) and other toxic gases from a plant set
up by the Union Carbide India Ltd. for the manufacture of pesticides in Bhopal on the night of
December 2, 1984. UCIL is a subsidiary of Union Carbide Corporation (UCC), a multinational
company registered in U.S.A. More than 27 tons of methyl isocyanate and other deadly gases
turned Bhopal into a gas chamber. None of the six safety systems at the plant were functional, and
Union Carbide’s own documents prove the company designed the plant with ‘unproven’ and
‘untested’ technology, and cut corners on safety and maintenance in order to save money.[xi] The
disaster resulted in the death of at least 3000 persons and there were serious diseases and injuries
to many people. Some people permanently lost their eyes, hearing senses, some suffered from
neurological disorders and scores of other complications.
The Supreme Court laid the rule of absolute liability in preference to the strict liability. The defence
of the UCC on the grounds of sabotage was rejected and the principle laid by the Supreme Court
in the M.C. Mehta v Union of India was followed.
The rule clearly held that where an enterprise is engaged in a hazardous or inherently dangerous
compensate to all those who are affected by the accident and such liability is not subject to any of
the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in
Rylands v Fletcher.
It was thus hoped that the victims would be able to get relief without further much delay. To see
to it that the victims of the handling of hazardous substances can get expeditious relief through
insurance, The Public Liability Insurance Act, 1991 was passed.
THE PUBLIC LIABILITY INSURANCE ACT, 1991
This act has the major aim of providing immediate relief to the persons affected by accident
occurring while handling any hazardous substances for matters connected with the incident. It has
the goal of providing public liability insurance. This act gained the assent of the President on the
22nd of January, 1991. This act says that every owner who works with hazardous substances and
hires employees to control those dangerous things, shall have policies and insurances where he
will be insured against liability to give relief in case of death or injury to a person or damage to
property arising from the accident caused while carrying on the hazardous activities. In respect of
already established units, insurance policies had to be taken as soon as possible and the rule gave
the owners the time of one year to get into the insurance contracts. This liability was based on the
principle of ‘no fault liability’.
Hazardous substance means any substance or preparation which by reason of its chemical or
physic-chemical properties or handling, is liable to cause harm to human beings, other living
creatures, plants, micro-organisms, property or the environment. The term ‘handling’ in relation
to any hazardous substance means the manufacture, processing, treatment, package, storage,
transportation by vehicle, use, collection, destruction, sovereign, offering for sales, transfer of the
like of such hazardous substance. This is the clause in the Section 2(c) of the Public Liability
Insurance Act, 1991. Therefore, this is the clear expression of the rule of the absolute liability laid
down in M.C. Mehta v Union of India.
Conclusion
Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and
which is not exclusively the breach of a contract or the breach of a trust or other merely equitable
obligation. There are many principles governing the law of torts. Generally, a person is liable for
his own wrongful acts and one does not incur any liability for the acts done by others. If an
individual commits a fault, he is liable for it. However, there is a principle which claims an
individual liable without his being at fault. This is the ‘no fault liability principle’. In this case, the
liable person may not have done any act of negligence or may have put in some positive efforts
but the rule claims him for the compensation. This principle has its roots in the two landmark
cases- Rylands v Fletcher (strict liability) and M.C.Mehta v Union of India(absolute liability).
The principle of strict liability clearly states that a person who keeps hazardous substances in his
premises is responsible for the fault if that substance escapes in any manner and causes damages.
This principle stands true if there was no negligence on the side of the person keeping it and the
burden of proof always lies on the defendant to prove how he is not liable. Whereas the rule of
absolute liability held that where an enterprise is engaged in a hazardous or inherently dangerous
compensate to all those who are affected by the accident.
Both these rules follow the ‘no fault liability principle’, a principle in which the defendant is held
liable even if he is not directly or indirectly responsible for the damages caused to the plaintiff.
WHAT IS FALSE IMPRISONMENT
False imprisonment is restraining a person in a bounded area without justification or consent.

False imprisonment is a common law misdemeanor and a tort. It applies to private as well as
governmental detention. It is dealt with in the form of wrongful confinement in the Indian Penal
Code under
1. Section 340. The Indian Penal Code deals with other matters related in this regard from
2. Section 339 to S. 348. When it comes to public police, the proving of false imprisonment
is sufficient to obtain a writ of Habeus Corpus.
For imprisonment, it is not necessary that the person should be put behind bars, but he should be
confined in such an area from where there are no possible ways of escape except the will of the
person who is confining the person within that area. It is not the degree of the imprisonment that
matters but it is the absence of lawful authority to justify unlawful confinement which is of
relevance. The internment and non-movement of any chattel, i.e., goods is also considered to be
a part of the concept of false imprisonment.
False arrest is the arrest of the individual by the police officer or private person without lawful
authority. False arrest and false imprisonment are virtually indistinguishable except in their
terminology and have been held by the courts as a single tort. False imprisonment is an
intentional tort, like those of assault, battery, unlawful harassment and invasion of privacy. These
are termed as torts of trespass to a person.
The defence to false imprisonment includes consent of the plaintiff or voluntary assumption of
the risk, probable cause and contributory negligence. The defence of consent of the plaintiff and
probable cause are complete defences while the defence of contributory negligence is used only
for mitigation of damages. Reasonable care and acting in good faith are no defences for this tort.
REMEDIES:-
There are three remedies for false imprisonment,
Which include damages,
Habeas corpus
And self -help.
Being a tort, the basic remedy for false imprisonment is an action for damages which can be due
to physical or mental suffering, loss of reputation or even malicious intent on behalf of the
defendant. If a person is unlawfully confined, then he can be released from such confinement by
the Writ of Habeas Corpus. A person can also use reasonable force in order to escape the
confinement. Article 21 of the Constitution guarantees the right of personal liberty and thereby
prohibits any inhuman, cruel or degrading treatments to any person whether he is a national or
foreigner. Any violation of this right attracts the provisions of Article 14 of the Constitution
which enshrines right to equality and equal protection of law. In addition to this, the question of
cruelty to prisoners is also dealt with specifically by the Prison Act, 1894. If any excesses are
committed on a prisoner, the prison administration is responsible for that.
However judicial and executive authorities have some amount of immunity for liability in false
imprisonment cases. For example a judge exercising his judicial powers for the arrest the
imprisonment of a person cannot be sued for damages for false imprisonment on the ground that
his order was illegal or without jurisdiction, provided he believed in good faith that he had
jurisdiction. There is protection conferred by the Judicial Officer‟s Protection Act.
Nevertheless, if the act is done in a mala fide or in a recklessly manner, the magistrate or judge
shall be liable for false imprisonment.
ESSENTIAL ELEMENTS OF FALSE IMPRISONMENT
The following are the major elements of False Imprisonment:
• PERIOD OF CONFINEMENT:
The tort of false imprisonment arises whatever may be the period of confinement. But the time
period is of essence while determining the amount of compensation to be awarded to the injured
party. An otherwise lawful detention may become unlawful if the detention is prolonged for an
unreasonable period of time.
• THE INTENTION FACTOR:
Normally the tort of false imprisonment must be intentional. A person is not liable for false
imprisonment unless his or her act is done for the purpose of imposing a confinement or with
knowledge that such a confinement, to a substantial certainty will result from it. Malice is
irrelevant to this tort. It is ordinarily for the jury to determine from the evidence, as a question of
fact, the intention of the defendant in an action for false imprisonment. Even negligent acts can
qualify as false imprisonment. For example, if a person locks someone inside a room without
unaware of the fact that there is someone in the room than he is held liable for false
imprisonment.
• KNOWLEDGE OF THE PLAINTIFF:
There is no requirement that the plaintiff alleging false imprisonment was aware of the restraint
on his freedom at the time of his confinement, If the person is confined in a room, with one of
the entries known to the plaintiff closed, and the room has more than one entry-exit door, but the
plaintiff has no knowledge about the same, the defendant will still be held liable. Thus, the
person confined does not have to be aware of the confinement or be harmed by it as it is
actionable per se.
• PLACE OF CONFINEMENT
To constitute the wrong, there may be no actual imprisonment in the ordinary sense -i.e.
Incarceration.
Any confinement in the ordinary sense whether be it prison or any place used temporarily for the
purpose of confinement constitutes false imprisonment. An unlawful arrest too amounts to false
imprisonment.It is enough that the plaintiff in any manner has been completely deprived of his
liberty, for any time, however short.
To constitute imprisonment the deprivation of the plaintiffs liberty should be complete that is
there must be on every side of him a boundary drawn beyond which he cannot pass. It is not
imprisonment to prevent the plaintiff from going in certain directions if he is free to go in other
directions and thus there will be no action for false imprisonment (Partial Restraint). If a person
has induced another to put himself or herself in a place which is impossible to leave without such
persons assistance, by words or by other conduct, the refusal to give such assistance, of for the
purpose of detaining the other is a sufficient act of confinement to make such person liable.
DEFENCES TO FALSE IMPRISONMENT
Defences to false imprisonment usually involve one or more of the elements of proof.
• The maxim VOLENTI NON FIT INJURIA applies to the case of false imprisonment.
The restraint must be involuntary. There is no imprisonment if the plaintiff agrees of his
or free choice, to act in conformity with the request of the defendant. One who enters the
premises of others upon terms which involve some restrictions on his liberty cannot
complain of false imprisonment.
• CONSENT: Although it has been denied that one may consent to unlawful restraint, on
the ground that liberty is an inalienable prerogative of which no one may divest himself,
it is frequently held that the consent of the plaintiff to acts which constitute an
imprisonment bars the right of recovery thereof. Consent must be free from duress,
coercion, fraud or mistake. Consent can also be implied in certain circumstances.
• PROBABLE CAUSE: When the probable cause is established than the action of false
imprisonment and false arrest fails completely. It is said that the test for probable cause
for imprisonment and arrest is an objective one, based not on the individual’s actual guilt,
but upon the information of credible facts or information that would induce a person of
ordinary caution to believe the accused to be guilty. A defendant who, in a false
imprisonment or false arrest action has established the probable cause for the alleged tort
than, has no additional obligation to prove. Even malicious motives will not support a
claim if probable cause is found to exist.
One of the probable causes can be necessity. If defendant has imprisoned plaintiff but it was
necessary for defendant to imprison plaintiff in the way he did than defendant had a lawful
justification or excuse of imprisoning plaintiff, the way he did.
Sometimes the imprisonment may be justified on the ground that the defendant was acting in
support of the law. The onus of proving a legal justification lies on the defendant.
• VALID ARREST: A claim of false arrest is completely invalidated if the detainment

was made according to principles of a valid arrest. In some circumstances an ordinary
person can make a citizen’s arrest. If the person who made the arrest was acting
according to instructions from a superior officer, it does not constitute a
defence. However, the superior’s instructions may be used as a basis for reducing
damages awards.
• MERCHANT’S PRIVILEGE: Shopkeepers may lawfully detain patrons suspected of
shoplifting. The store owner or employee must have probable cause for the
restraint. They must also witness the shoplifting in progress, continuously observe the
shoplifter and their failure to pay for the retail, and must apprehend the suspect outside
the premises
• RESTRAINT OF MINOR: Some states allow a person to restrain a person under the
age of seventeen, subject to many requirements, such as obtaining the parent’s
consent. Parents may also have authority to detain their own child if it does not endanger
the child.
REMEDIES
1. Action for Damages
Damages in false imprisonment are those which flow from the detention. The damages for false
arrest are to be measured only to the time of arraignment or indictment. There is no legal rule for
the assessment of the damages and this is entirely left on the court. The grounds for damages
include injury to the person and physical suffering, mental suffering and humiliation, loss of time
earnings and interruption of businesses, medical expenses incurred, injury to the reputation etc.
2.Nominal and Compensatory Damages
The general rule in personal tort action is that the plaintiff is entitled to recover such a sum that
shall be fair and just, in the absence of circumstances justifying an award for exemplary
damages. Mere unlawful detention constitutes the basis for the recovery of at least nominal
damages, but an award of only nominal damages may be insufficient and flawed where the facts
proved indicate a right to greater damages. It has been held now that the person can now be
imprisoned without knowing it. In such cases the plaintiff might obtain only nominal damages.
Mental suffering including fright, shame and mortification from the indignity and disgrace,
consequent upon an illegal detention, is usually considered an injury for which compensation
may be made in an action for false arrest or false imprisonment. The fact that no physical injury
was inflicted on one complaining of false imprisonment has been held to be an insufficient
ground for denying the recovery of reasonable compensation for mental suffering.
3.Punitive, Exemplary and Aggravated Damages
If an imprisonment is affected recklessly, oppressively, insultingly and maliciously with a design

to oppress and injure, the court may award exemplary or punitive damages. Punitive damages are
awarded in cases where the defendants conduct is recklessly indifferent to the rights of others or
in intentional or wanton violation of those rights, and such damages are awarded to give a
deterrent. In some circumstances exemplary damages may be provided as when there is abuse of
power by the state. Aggravated damages may be awarded in a proper case as when the
imprisonment in itself of a nominal character is offensive or hurt fell to the plaintiff’s feelings.
Courts have often held that malice will warrant an award for exemplary or punitive damages in
an action for false imprisonment or false arrest. Punitive or exemplary damages will not be
allowed where the false imprisonment was brought about in good faith, without malice in fact or
in law and where there is no element of wantonness or oppression.
4.Writ of Habeas Corpus
This writ is considered to be a golden remedy by the English Law. The Supreme Court of India
and High Courts issue this writ under Article 32 and 226 respectively. Subject to the rules
framed by the High Courts, an application for habeas corpus can be made by the person in
confinement or by any person on his behalf. The writ of habeas corpus is effective means of
immediate release from unlawful detention, whether in prison or private custody. Where an
unlawful detention is continuing the plaintiff may seek this writ. This writ is also used in
criminal cases of false imprisonment.
5.Self Help
A person who is unlawfully detained may use self-help to escape including reasonable force so
as to defend him from unlawful arrest. The force used must be proportionate in the
circumstances. This is a risky recourse since the power to arrest is likely to depend upon not only
in the commission of offence but in the alternative, in a reasonable suspicion thereof. Hence an
innocent person who forcibly resists may be liable for battery if the arrester had reasonable
grounds for his suspicion.
CASES PERTAINING TO FALSE IMPRISONMENT
To bring out the concept of False Imprisonment, it is imperative to discuss the landmark cases
related to it:
BIRD v. JONES:
FACTS: In this case, a part of the public footway was wrongfully enclosed by the defendant.
Seats were put up and entry was allowed to only those who paid for watching the rowing there.
The plaintiff asserted his right to using that footway, climbed up the fence of the enclosure but
was prevented to go forward. He remained there for half an hour.
HELD: Not a case of false imprisonment as there was no “total restrain”. The plaintiff could
have easily taken another way.
MEE v. CRUIKSHANK:
FACTS: After his acquittal, a prisoner was taken down to the cells and detained there for a few
minutes while some questions were put to him by the warden.
HELD: It was a case of false imprisonment as the time of confinement does not matter. What
matters is restraint on the liberty of that individual.
HERRING v. BOYLE
FACTS: A schoolmaster wrongfully refused to permit a school boy to go to with his mother
unless the mother paid an amount alleged to be due from him. The conversation between the
mother and schoolmaster was held in the absence of the boy.
HELD: The case was held not to be a case of false imprisonment as the boy was not cognizant of
the restraint.
D.K.BASU v. STATE OF WEST-BENGAL
In this case, the petitioners raised important issues concerning the police powers and if monetary
compensation should be awarded for established infringement of Fundamental Rights, as under
Article 21 and 22 of the Constitution. The court held that Custodial violence, including torture
and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of
the executive should not only be derived from law but also that the same should be limited by
law. To check the abuse of police power, transparency of action and accountability were the two
safeguards laid down by the court. The Court issued 11 directives where it spelled out the rights
of an arrestee or a detainee and the manner in which the arresting or detaining authority is
expected to behave, including the written record of arrest, informing of arrestee’s family of his
arrest, medical examination on request, among others.
BHIM SINGH v. STATE OF JAMMU & KASHMIR
On the opening day of the Budget Session of the Legislative Assembly, Shri Bhim Singh was
suspended from the Assembly. He questioned the suspension in the High Court of Jammu &
Kashmir. The order of suspension was stayed by the High Court. The next day, he was arrested
and was taken away by the police. His wife filed the present application for the issue of a writ to
direct the respondents to produce Shri Bhim Singh before the court, to declare his detention
illegal and to set him at liberty.
HELD: The court held that the detention was illegal and qualified as false imprisonment.
RUDUL SHAH v. STATE OF BIHAR[viii]
FACTS: The petitioner who was detained in prison for over 14 years filed a habeas corpus
petition under Article 32 of the Constitution on the ground of illegal detention.
HELD: The Supreme Court directed immediate release of the petitioner and directed the state to
grant the damages.
SEBASTIAN M.HONGRAY v. UNION OF INDIA[ix]

ISSUE: In the Sebastian Hongray case, two persons were taken into custody by the Army
authority in Manipur, but were not produced in obedience to a writ of habeas corpus and it was
alleged that those persons must have met an unnatural death while in army custody.
HELD: The Supreme Court directed the Union of India to pay exemplary damages for the role of
the army authorities in murdering the two persons.
CONCLUSION
The tort of false imprisonment is one of the most severe forms of human rights violation. The
Indian socio-legal system is based on non-violence, mutual respect and human dignity of the
individual. Even the prisoners have human rights because the prison torture is not the last drug in
the Justice Pharmacopoeia but a confession of failure to do justice to a living man.[x] In fact
Article 21 of the Indian Constitution also recognizes the same. Article 20 with its sub-clauses re-
enforces the same, and seeks to protect convicts from being held down due to ex post facto laws
(Art. 20 (a)), double jeopardy (Art. 20 (b)) and self-incrimination (Art. 20 (c)).
Thereby, after analysing the various case laws and going through the various principles of Tort
Law, it can be concluded that:
• The right of a person to personal liberty, freedom and life with dignity has been
guaranteed by the Constitution under Articles 20 and 21 cannot be abrogated even during
emergency, and false imprisonment is incongruous of the same.
• The fact that a convict is imprisoned and has to serve a sentence, doesn’t give the jail
authorities any right to torment or torture him unnecessarily. It is a false notion that the
prisoner subject to intolerable hardships is remedyless.
• The term of imprisonment is a decisive and vital factor to be taken into consideration in
order to compute and award damages. And while awarding damages for false
imprisonment physical or mental injury has to be kept in mind.
4.The mere fact that the person has been imprisoned raises the claim of nominal or compensatory
damages if no other injury was caused to the plaintiff.
5.If the person is unlawfully confined by any police officer or government officer, than he or any
person on his behalf can file for the writ of habeas corpus. This writ ensures the liberty of the
person who is confined.
6.The person who is about to be falsely arrested or imprisoned can also use reasonable force in
order to prevent false arrest. He can use force for self-defence but has to make sure that the force
used is reasonable according to the circumstances.
SOVEREIGN IMMUNITY
CONCEPT
The principle of sovereign immunity lays down that an offence cannot be committed by the state.
This is based on the age old maxim that ‘King can do no wrong’. Although, an employer can be
vicariously held liable for the wrongful acts of his employees committed in the scope of
employment, yet the state was not held liable for the offences committed by its servants due to the
application of sovereign immunity. With the passage of time, it came to be realised that the state
cannot be granted absolute immunity from liability and a distinction was made between sovereign
and non-sovereign functions of the state. While the state could not be held liable for acts committed
in the discharge of sovereign functions, it was held liable for offences occurring during non-
sovereign functions like commercial acts. With time, the ambit of sovereign functions has been
considerably narrowed down by courts.”
INTRODUCTION
Traditionally the duties of a state were confined only to the role of maintaining law and order and
its functions were mainly that of the police. However, with the ever increasing interference of the
state in our everyday lives to ensure a welfare state, the traditional view of liability of the state
cannot be accepted. Over the years, the courts in determining the liability of the state for wrongs
committed by its employees have examined in depth the principle of sovereign immunity and the
severability of the state’s functions into sovereign and non-sovereign.
N. Nagendra Rao & Co. v. State of Andhra Pradesh
FACTS
In this case, the appellant N. Nagendra & Co. carried on a business in fertiliser and foodgrains
under licence issued by the appropriate authorities. Its premises were visited by the Police
Inspector, Vigilance Cell and huge stocks of fertilisers, foodgrains and even non-essential goods
were seized. On the report submitted by the Inspector, the District Revenue Officer in exercise of
powers under Section 6-A of the Essential Commodities Act, 1955 Act directed the fertiliser to be
placed in the custody of Assistant Agricultural Officer for distribution to needy and the foodgrains
and non- essential goods in the custody of Tehsildar for disposing it off immediately and depositing
the sale proceeds in the Treasury. The AAO did not take any steps to dispose of the fertiliser. The
appellant made application that since no steps were being taken the fertiliser shall deteriorate and
shall be rendered useless causing huge loss to him. Request was made for diverting the fertiliser
either to the places mentioned by the appellant as the demand was more there or to release it in his
favour for disposal and deposit of the sale price. But neither any order was passed by the DRO nor
any action was taken by the AAO. In the meanwhile, the appellant’s licence was cancelled. After
repeated requests, the collector ordered that the goods be returned to the appellants. However, the
AAO did not comply with the orders. After repeated consultations with various minsters, when the
appellants finally obtained the stock, it was spoiled both in quality and quantity.
PROCEDURAL HISTORY
In the present case, the non-disposal of the goods seized under various control orders issued under
the Essential Commodities Act, 1955 caused a loss to the appellants. The trial court held that the
state while performing its duty under a statute has been negligent and issued a decree for the
payment of a total value of Rs.1,06,125 towards the damaged stock with interest thereon at the rate
of 6% . However, this order was struck down by the High Court of Andhra Pradesh which decided
the case on the ratio of Kasturilal case. The appellants appealed against the High Court judgement
and thus, approached the Supreme Court. The High Court granted certificate under Article 133(1)
of the Constitution of India as the case involved “substantial questions of law, of general
importance.”
The issues under consideration in this case were:
1. Whether the employees of the state were negligent in disposing the goods.
2. Whether the seizure of the goods in exercise of statutory powers under the said Act
immunises the State, completely, from any loss or damage suffered by the owner.
The Supreme Court examined in depth the various principles of law and dealt with the concept of
sovereign immunity in detail. The issue of whether the employees of the state were negligent in
disposing the goods is one question that had to be proven on the basis of facts. Once the court was
convinced that the state’s employees were negligent, the issue that next arose was whether the state
must be held vicariously liable for the acts of its employees.
The issue was looked into in the light of the principle of sovereign immunity. The state seized the
goods under a statue and if this function can be said to be a sovereign function performed by the
state.
To analyse the case, a concurrent reading of Vidhyawati and Kasturilal is called for.
VIDHYAWATI CASE
This is a landmark judgement in the determination of liability of state and lays down a distinction
between the sovereign and non- sovereign functions.
The respondent’s husband was knocked down by a Government jeep car rashly and negligently
driven by an employee of the State of Rajasthan, and subsequently died in hospital. The trial court
decreed against the driver but dismissed the case against the state. The High Court on appeal,
disagreeing with the trial court, decreed the suit as against the State as well. It was held by the
High Court that the liability of the State for damages in respect of a tortious act committed by its
servant within the scope of his employment and functioning was the same as that of any other
employer. It did not agree with the trial court’s reasoning of classifying the act as a part of the
discharge of the sovereign functions by the state. The state of Rajasthan appealed in the Supreme
Court against the same.
The Supreme Court first analysed the liability of the state with respect to the Government of India
Act,1935, and others and held that the liability of the state post-independence is the same as that
of the East India Company as held in the case of Peninsular and Oriental Steam Navigation Co.
v. The Secretary of State for India. The issue that arose for consideration was the extent of the
vicarious liability of Government for the tortious acts of its employees, acting in the course of their
employment. The next question that was to be answered was whether the act of driving the car
back from the repair shop was an exercise of sovereign powers of the state.
The Supreme Court upheld the view of the High Court. It held that the state must be equally liable
as other companies for the acts of its employees. The concept of sovereign immunity and the rule
of ‘king can do no wrong’ are no longer applicable. The Crown Proceedings Act removes such
unlimited immunity in the Common Law countries. Also our Constitution envisages a Republican
form of Government, and one of the objectives is to establish a Socialist State with its varied
industrial and other activities, employing a large army of servants, there is no justification, in
principle, or in public interest, that the State should not be held liable vicariously for the tortious
act of its servant.
The case of N. Nagendra must be read in light of this case. In this case, the liability was imposed
on the state and the concept of sovereign immunity was not adopted. The act of driving a
government vehicle during the course of employment cannot make the state immune when it
substantially interferes with the right to life of the citizens. The state today undertakes a plethora
of activities under the umbrella of a welfare state such as transportation, trading, construction and
others. It would be unfair to immunise the state for any mistake committed by itself or its
employees during the course of these activities. In N.Nagendra Rao’s case as well when the state
seized certain goods under the Essential Commodities Act for public welfare, the onus fell on the
state to ensure that the said goods are carefully preserved as is necessary. Thus, the state was held
liable to pay the compensation for the loss incurred.
However, the view in the case of Vidhyawati was not upheld by the Supreme Court in Kasturilal
Ram case. The court laid down its ration on the basis of sovereign function of the state through
police and distinguished Vidhyawati case.
KASTURILAL’S CASE
In this present case, the police authorities had seized certain goods of the appellants in the exercise
of its statutory powers. The police seized the goods under suspicion and detained Kasturilal at
Meerut. Later, when the police confirmed that the goods belonged to Kasturilal and that he had the
title to the goods, he was let free. However, in the meanwhile, a constable of the police has stolen
the goods. The police were, thus, negligent in the safe custody of the goods. As a result of such
negligence, the appellant suffered a loss of the gold articles and thus sued the state to recover the
loss. The trial court decreed against the state but was overruled by the High Court. The appellants
approached the Supreme Court.
It was argued in this case that once the negligence of the state is established, no further deliberation
is needed. It was argued that the principle laid down in Vidyawati case must be applied as both
cases included loss suffered due to the negligence of state employees. Nonetheless, the judges
distinguished the case of Vidyawati. The course of public employment of the Vidyawati case was
not that of a sovereign function. The power to arrest a person, to search him, to seize property
found with him, are powers conferred on specified officers by statute, and are powers which could
be properly characterised as sovereign powers. So, even though, the employees of the state were
negligent during the course of their employment, the state cannot be held liable because the
employment in question was of the category which falls under the characteristic of sovereign
power.
Thus, the Supreme Court ruled in this case held that the state cannot be held liable to compensate
the appellant as the act of the state falls under the sovereign function of the state.
This view can nevertheless be accepted. Sovereign immunity as a defence can never be available
where the state was involved in commercial or public activity and it interferes with the life and
liberty of a citizen. The state must be legally and morally bound to compensate the victims for the
wrongs committed. No doubt the state must have protection so as to conduct its activities for the
public interest without being sued every now and then by the people. However, this cannot be
applied to every case where the state fails to take necessary care to protect the interests of the
public. The state cannot have the absolute power to act according to its whims and caprice.
Also the changing structure of the society, a democratic political system and an unbiased
Constitution, cannot permit an executive to have absolute powers. The rule of law does not permit
the state to be above law. The state vis-à-vis an individual must be treated equally. Today when
the functions of the state extend to regulating and controlling the activities of the people in almost
every sphere, educational, commercial, social, economic, political and even marital, the line
demarcating between sovereign and non-sovereign functions is largely disappearing.
CONCLUSION
In the case of N. Nagendra Rao, the Supreme Court upheld the view in Vidyawati case and
distinguished Kasturilal. The court held that barring functions such as administration of justice,
maintenance of law and order and repression of crime etc. which are among the primary and
inalienable functions of a constitutional Government, the State cannot claim any immunity. The
act of seizure of goods for the public interests is under the welfare state functions and not under
the primary functions.
With respect to the principle of vicarious liability, it was held that if the officers can be sued
personally for negligence and misfeasance in discharge of public, there is no rationale for the
proposition that even if the officer is liable the State cannot be sued. Now, since the doctrine has
become outdated and sovereignty rests with the people, the state cannot claim any immunity. Thus,
the State of Andhra Pradesh was directed to pay the appellants the amount as decided by the trial
court with costs.
NECESSITY – PUBLIC AND PRIVATE
Introduction
The law of torts provide many justifications or defences, for preventing any admission of liabilities
on the part of tortfeasor, like private defence, volenti non fit injuria, inevitable exercise etc., and
one such affirmative defence is necessity. The defence of Necessity is generally available against
the intentional torts like that of trespass and conversion. It is based on maxim salus populi suprema
lex, i.e. ‘the welfare of the people is the supreme law’. Necessity is primarily of two types:
1). Public Necessity;
2). Private Necessity.
Necessity, nowadays have become more kind of a risky defence, with the advent of strict liability
and absolute liability, as the line is very thin between them. The few cases showing the evolution
of necessity are (i) Vincent v. Lake Erie Transp. Co., (ii) Ploof v. Putnam, we will go through the
details of these cases later in this research. It is more than ever confused with self-defence / private
defence of self and others as they have many elements in common.
Necessity
Necessity as a defence is defined under section 81 in Indian Penal Code as:
“Act likely to cause harm, but done without criminal intent, and to prevent other harm.—Nothing
is an offence merely by reason of its being done with the knowledge that it is likely to cause harm,
if it be done without any criminal intention to cause harm, and in good faith for the purpose of
preventing or avoiding other harm to person or property.”
The explanation of the same is that it is a question of fact in such a case whether the harm to be
prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing
the act with the knowledge that it was likely to cause harm. Necessity may justify physical harm
caused, but cannot be used as a defence when there is human life involved such as if there is
incriminating throwing of people to save the sinking boat, but if the goods are thrown overboard
the same will be justified
Tort been mainly concerned with compensation and necessity justifies the unlawful act and hence,
either lessens or mitigate the liability. The defence of necessity requires the defendant to prove on
his part that the unlawful act committed by him satisfies the following elements:
• It was not a result of his own negligence;

• S/he acted to avoid a significant risk of harm;
• No other alternative lawful means were available;
• Harm avoided was greater than the harm which resulted due to his act;
• The harm was imminent and the act was reasonable.
These elements made it a circumstantial defence and also show the principle it is founded i.e. the
greater good of all by saying that the highest value is not adherence to law but to achieve social
welfare.
Now the basic difference between necessity and other defences like private defence is mainly the
act of plaintiff, unlike private defence, the damage inflicted on the plaintiff was not provoked by
any actual or threatened illegal wrong on the plaintiff’s part, and that the defendant’s action may
be entirely for the good of other people and not necessarily for the protection of himself or his
property. That is the plaintiff is free from any wrong-doing. As said before, there are 2 types
necessity they are (a) Public Necessity, and (b) Private Necessity; now we will look into each one
of them.
Public Necessity
“Public Necessity” occurs when a defendant takes someone else’s property in order to prevent
damage to the community as a whole. Often, the defendant must be a public official in order to
claim the defence of public necessity and serves as an absolute defence. Public Necessity over-
shadows private rights, but just in order to save a greater harm to society at large. So, it justifies
the demolishing of houses on fire to prevent fire from expanding good cast overboard from a ship5.
Private Necessity
Private necessity rather than arising out for general public arises for self interest. S/He (defendant)
may interfere with someone’s (plaintiff) property in an emergency to protect an interest of his own.
Private necessity does not serve as an absolute defence to liability. If for e.g. A commits a trespass
on the property of B and in the same causes some damage to B’s property, A if successfully pleads
private necessity will be liable to pay the compensation to restore the harm but not punitive or
nominal damages. But if B trying to force out A out of his property commits a tort, while B is
claiming private necessity, A will be liable for the torts committed[.
The principle been “necessitas inducit privilegium quod jura private”, meaning ‘Necessity induces
a privilege because of a private right’. The mentioned maxim makes it quite clear that rather been
a defence its more kind of a privilege enjoyed by persons. The defence founds its way into the
present legal system mainly through Vincent v. Lake Erie Transp. Co., which just evolved the
principle that was in a way already established by Ploof v. Putnam, but the later didn’t made, who
was at fault or in more clear terms who should pay whom, which the Vincent case did.
In Vincent v. Lake Erie Transp. Co., the jest of the matter was that a ship was already tied to a
dock, when a storm hit the region, due to which the ship and the deck was continuously colliding
and the dock owner filed a suit for compensation against the ship owner’s, in the proceedings that
followed, it was held that the defence of private necessity applies but the damage caused to one by
the act of the other needs to compensated which was left in Ploof v. Putnam. But, the principle that
one, who is under the ambit of private necessity can’t be forced to move out of someone’s property
comes from Ploof v. Putnam2, in which the weather conditions were not good and a private sloop
tied itself to a private dock, but their ropes were released in the middle of the storm and as a result
they were held liable as the sloop was under private necessity. Hence, on a deep analysis of both
the cases it comes out necessity in a way involves conflict of interests and hence as said in Olga
Tellis v. Bombay Municipal Corporation“necessity is a plausible defence, which enables a person
to escape liability………. hence, … a balance has to be struck between competing sets of values”.
Criticism
Necessity as a defence has been used in several cases, tortuous as well as criminal. Necessity,
generally, have not been able to justify criminal acts such as that of murder, even that of stealing
food on record of his ultimate hunger as stated in the obiter by Lord Coleridge CJ in the famous
case or the founding case of necessity in English law viz. is R v Dudley and Stephensstated:
“Who is to be the judge of this sort of necessity? By what measure is the comparative value of
lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves
to him who is to profit by it to determine the necessity which will justify him in deliberately taking
another’s life to save his own. In [the present case] the weakest, the youngest, the most unresisting
life was chosen. Was it more necessary to kill him than one of the grown men? The answer be,
No.”
This case made necessity to come as a good rather an evil to justify everyone’s lust and prevented
a chaotic state that could have prevailed if this would not have been the case. The same was said
by Lord Denning MR in slightly different words but inferring the same in Southwark LBC v
Williams and many have even called necessity a mask for anarchy. Same opinions have been
framed by various Indian judges and scholars as stated in Olga Tellis v. Bombay Municipal
Corporation11. On the question of economic necessity the Honourable Supreme Court of India
(SC) in various cases have justified the use of pavement to be used as a trade place but have
quashed any right such as to occupy a particular place. However, in a case of removal of hutment
dwellers SC held that who were already there before the cut off date fixed by the court cannot be
removed until provided alternative site for re-settlement. In both the judgements, the background
of the decisions was the necessity of them, as their livelihood depends on the same, but this
argument can’t be made if the person after committing theft or any offence for that matter pleads
necessity for livelihood, as it will lead to chaos and unruliness, which the law is required to keep
in check.
Public Necessity is said to be an absolute defence but it from the eyes of justice and equality don’t
seems fair that a person bears damage but he cannot recover any compensation under law of torts,
which was the prime motive of torts i.e. to provide relief to the suffered. In Surocco v. Geary7, the
main motive of torts is left out and Surocco suffers damage and the court instead of awarding any
damages held that there was no wrong committed as it was a matter of public necessity and private
individual good sometimes needs to be sacrificed for greater social good, but then in Wegner v.
Milwaukee Mutual Ins. Co., the court held that if an individual suffers loss for the benefit of the
public than it is the duty (reciprocative) of the public through taxes to compensate his losses, not
a burden on the individual for his sacrifice. Now, the decision of providing damages is now a
matter of public policy and generally, nowadays compensation is awarded.
R v. Dudley and Stephens
The discussion of private necessity cannot be completed without this case of English, belonging
to Victorian Era Britain. The facts of the case are as follows:
• The defendants and a cabin boy were cast adrift in a boat following a shipwreck.
• The defendants agreed that as the cabin boy was already weak, and looked likely to die
soon, they would kill him and eat him for as long as they could,
• In the hope that they would be rescued before they themselves died of starvation.
• A few days after the killing they were rescued and then charged with murder.
The defendants plead the defence of necessity and customs of sea. They plead that it was necessary
for them to kill the cabin boy and eat him in order to survive of them. They plead necessity on the
grounds that they saved a greater harm i.e. that of all of them by doing a smaller harm i.e. killing
of the weak cabin boy and eating him, in order to survive, but the same cannot be made a ground
for necessity; otherwise it would just lead to lawlessness, barbarianism and anarchy.
The case makes the defence of necessity a narrow one and also a good one from social as well as
ethical point of view, even from been of Victorian Era, it still holds true.
Conclusion
Necessity embodies elasticity to law and punishments, and a humane touch; it provides a safe-
valve for citizens to break the law, in circumstances of extreme need and the breaking of law in
such a situation is legalised, so that such an act is penalised. Necessity as a defence is new and
evolving, in relation to other defences like act of god etc, which have been fully debated and
evolved over period of time. Necessity needs to be debated and its complexities sorted out. Been
a new defence, it has many flaws and dimensions unexplored. Necessity is a defence which involve
case by case analysis and hence, does not have a strict rule of application and depends on
circumstances. It’s in the womb of future, how necessity would be evolved in upcoming time, in
between the matters of strict liability and absolute liability.
EMERGING TRENDS OF E-COMMERCE & CHALLENGES TO THE CONSUMER

PROTECTION ACT, 1986
“Today, there are no boundaries in the business world. Technology has cured the problems posed
by geographical limitations. Business is largely being conducted online, where buying and selling
is taking place through the electronic medium. E-commerce is preferred due to a variety of reasons
that include affordability, wider range of products and services and convenience involved in the
transaction. However, at the same time, there are concerns like privacy of data, online identity
theft and sometimes, the products ordered do not conform to their actual description. In these
situations, the consumer is often left without remedy because of jurisdictional issues in cyberspace.
This calls for changes in the Consumer Protection Act where there are mechanisms for information
sharing between buyers and sellers, easy dispute resolution mechanisms and protection of
sensitive information.”
Introduction
The world is moving from the traditional economy that focused on physical manufacturing of
goods to the new economy that concentrates more on knowledge and information than anything.
Electronic commerce or e-commerce is an important facet in this regard.
E-commerce brings forth a tougher business competition, leads to creation of new marketplaces,
faster transactions, and rapid growth in technologies. E-commerce can be generally understood as
a system or a method of conducting business through electronic media rather than through
conventional physical means.
E-commerce is defined as, “the use of electronic transmission medium to engage in exchange,
including buying and selling of products and services requiring transportation, either physically or
digitally, from location to location.”
It is preferred over conventional methods as it provides convenient access to products that may
otherwise not be accessible and leads to efficient transactions for both consumers and e-retailers.
Further, e-commerce has made possible low-value cross-border transactions on a scale that
previously was unimaginable.
E-commerce has received huge popularity because of the automation technique used by it. Due to
ease in transactions, the number of e-consumers is growing at high rate and within a very short
period it will defeat physical consumer.
Today, e-commerce is affecting business. Electronic business not only exchanges information
between buyers and sellers of goods, but also provides support and services to consumers. More
consumer demands appear on the Internet than any other mediums today. It demonstrates that the
internet has a huge potential to grab many customers in a short amount of time, which in turn can
become a target market for growing firms. Internet has changed the economy so much that most
of the business activities today are carried out online.
In general the rights of a consumer as provided by domestic legislations like Sec. 6 of Consumer
Protection Act, 1986 are also available to electronic consumers because no special condition has
been laid down in most of the consumer laws regarding applicability or non-applicability of
electronic transactions.
The right of physical consumers and e-consumers are equal in theory but different in operation or
enjoyment due to difference in the nature and place of business or medium of business. Few unique
practical problems like place of business, jurisdictional issues, non-availability of common dispute
resolution system etc., certainly require special measures that are not provided in the existing
consumer legislations.
Considering these aspects strong protective mechanisms are required to be set up. Moreover,
beside the government’s responsibility to protect e-consumers, we being consumers/customers and
Internet users are also responsible for keeping our e-commerce healthy and safe so that e-business
can be more reliable in the future.
Advantages of E-Commerce
Numerous reasons can be attributed for this exponential growth and change in consumer patterns.
Some of those reasons are:-
• Affordability
• Convenience
• Availability
• Wider Choice
• Better Bargain
• Speedier And Cheaper Shopping
The number of people becoming e-consumers is increasing day-by-day and the risk to which they
are exposed is also on the rise. These problems make protective measures indispensible and require
speediest protective mechanism.
Drawbacks of e-Commerce
We see electronic commerce as a profoundly pro-consumer development. It offers consumers a

range and variety of products, and a source of relevant information with which consumers can
protect their own interests, although it has some drawbacks as well:-
1. Online Identity Theft and Phishing: Online identity theft is the practice of pretending to be
someone else on the Internet. The purpose can range from quite harmless activities to a criminal
activity like stealing someone’s personal information for one’s own financial gain. Usually it
involves phishing or online fraud for a person’s banking information and using that to order goods
or transfer money to another bank account. There is no specific legal framework that covers
situations where one purchase goods on Internet by electronic transactions.
In India though the Government has promoted e-commerce aggressively, focusing especially on
the delivery of services, yet legal controls for online sale of goods have yet to catch up with those
for conventional shopping. The Internet allows people to mimic legitimate business more
convincingly, reach potential victims efficiently, elude detection by maintaining anonymity, and
frustrate enforcement officials by locating (or relocating when detected) in remote jurisdictions
that have no relevant law or no serious enforcement.
2. Privacy concerns: The Internet and its ability to marshal and sort vast amounts of information,
without the online consumer even knowing is a new and potent threat to traditional privacy values.
3. Online Jurisdiction: Internet is a communication medium without geographical or national

boundaries. But the consumer protection legislations are predominantly based on national and local
boundaries. To be protected under the present laws in India at the time of electronic shopping, the
first thing an e-consumer needs to ensure is that all the parties involved in the transactions are
based within national boundaries where his municipal consumer protection laws apply.
Because electronic commerce respects no borders, cooperation and coordination in international

law enforcement, using domestic legislations for protection often becomes difficult.
4. Insecurity: It is pertinent for consumers to note that all computer systems cannot be one
hundred percent secure; there is always a degree of risk involved in using the Internet for buying
goods. Thus, it requires a strict and user-friendly law, which not only provides the security at the
time of shopping, but also protects the interest of the e-consumer post transactions.
Finally, there is a subject no one should neglect. The electronic commerce revolution, for all its
promise, may widen the divide between the haves and have not’s, between nations and even within
nation states. As we celebrate the promise of the digital revolution, we must also acknowledge the
threat it poses to individual welfare and to the stability of international order.
Measures For the Protection of E-Consumer
In this electronic age there is a need to protect consumers’ interest and following are the areas of
central importance for the effective protection of e-consumers.
1. Correct Information
An informed consumer is self sufficient to look after her/his own interests than an uninformed
consumer. Appropriate information on the products is very important for e-consumers as that can
help them to assess the benefits and risks of entering into a particular transaction. If the consumer
is already aware of such information, then there will not be unnecessary disappointments; hence
subsequent disputes will be avoided.
Appropriate information on the products acts as a substitute for the real-life ‘touch-and-feel’ that
occurs during offline transactions. Thus legal regulations requiring e-retailers to provide detailed
information about their products, the sales process, etc. is not particularly arduous for the e-
retailers. They should provide information about the following:
• E-Retailer- This should include the information regarding the e-retailer’s identity, place
of registration, physical location, and contact details, postal address, e-mail address and
telephone number. This information allows them to assess the reliability of the e-retailers.
• Product: Sellers must provide an accurate and appropriately detailed, description of the
product, its characteristics, uses, limitations, compatibility, as well as the need for services
and maintenance, the price of the product, including applicable taxes and surcharges, all
costs itemized, the applicable currency, warranties and guarantees, any after-sales services.
• Sales Process: The rules governing the sales process are very difficult to understand for a
consumer. E-retailers should provide information about the sales process like the technical
steps to be followed to conclude a transaction, the delivery time and method, order tracking
system in place, payment process, parties’ rights to cancel, terminate or retract, as well as
applicable refund, exchange and returns possibilities and about the security measures
applied to the transaction.
• Terms of the Contract: Sellers must provide their consumers with the terms of the
contract expressed in clear, unambiguous and simple language.
• Information about the use of Consumer’s Personal Data: At minimum, e-consumer

protection must require e-sellers to provide existing and potential consumers with detailed
information about how it collects data, who will have access to the data and how the data
will be kept safe etc.
• Confirmation of the Transaction: E-retailers should provide consumers with a prompt

confirmation of the transaction as soon as the order has been placed. That confirmation
should contain information acknowledging that the order has been accepted and
information regarding expected delivery time. Furthermore, the confirmation should be
printable and possible to store in electronic form.
2. Fair Contracts
Some consumers simply do not think that the terms and conditions are legally binding and most
consumers are poorly equipped to understand the significance of the terms of the contracts they
enter into. Consciously or subconsciously, they rely upon the legal system to protect them from
unfair contractual clauses.
Many standard contracts contain complex legal clauses, such as choice of forum clauses and
exclusion clauses that consumers may struggle to fully comprehend. As a result, they generally do
not read the terms and conditions of the contracts they enter into. Further, consumer protection
laws have created consumers who do not take the time to seek to protect their interests.
3. Adequate Regulation of Unconscionable Conduct
Satisfactory consumer protection regulations must adequately protect consumers against

unconscionable conduct by sellers. A further concern arises relating to the lack of power of
consumers to negotiate terms.
• It should be ensured that e-sellers do not use sales processes that confuse consumers into
accepting unreasonable terms.
• Consumer protection should contain special rules protecting consumers who have limited
legal capacity and their guardians, as it is impossible to know whom you are contracting
with.
4. Adequate Regulation of Product Quality and Suitability:

The sold products must meet adequate quality and safety standards. If the consumer has mentioned
the purpose for which a product has to be used then, e-retailer should only deliver products suitable
for the purpose described by the consumer. Also, products provided must correspond with any
descriptions provided by the retailer.
5. Cancellation/Return/Refund Policies
Merchants should provide information to consumers about their cancellation, return, and refund
policies, including the time after entering into a binding obligation after which an available
cancellation, return, or refund may be made. If there is no cancellation, return, or refund right, this
should be stated prior to completion of the transaction.
6. Fair Dispute Resolution
A multi-facetted approach is necessary to ensure a fair resolution of a dispute between an e-retailer

and an e-consumer. Law should provide consumers with fair, timely, and affordable means to settle
disputes and obtain redress. Thus it must provide consumers with a realistic avenue for taking legal
action against the seller/service provider, but with the alternative or prior step of a more appropriate
dispute resolution system.
• First, to be effective, a consumer protection scheme must ensure that the consumer, in an
e-commerce transaction, can take legal action at her/his place of residence or domicile.
• Second, the consumer in an e-commerce transaction should always be allowed to rely upon
the consumer protection provided by their country of residence or domicile.
An adequate access to advice and assistance where they can take legal action is essential for
consumers. This requirement can be satisfied by a governmental department or agency working
with consumer protection questions. Alternative Dispute Resolution System is becoming popular
nowadays. It has been adopted by corporate houses to resolve their disputes outside courts with
less strict rules and lower costs. The provision for ADR system should also be encouraged by
legislation protection e-consumers right.
Recommendations
Technology develops faster than law and it will continue to be one step ahead of law. Thus
electronic transactions in the present set up are full of insecurities and uncertainties because of
absence of proper legal mechanisms. To cope up with the technological advancement we have to
take the help of technology; as Charles Clark once remarked ‘The answer to the machine is in the
machine’. Indeed, the perfect reply to the technological abuses is the application of technological
innovation.
Since existing consumer laws of India are unable to protect e-consumers’ rights properly, the
consumers have to be more cautious about the use of e-market. They should remember and observe
following at the time of electronic dealings for smoother and safer transactions over Internet.
• E-mail addresses can be set up fraudulently, and so sending users details encrypted by e-
mail are still no guarantee of security. Sending details via a web site form provides some
extra security because of the more exacting requirements for registration of Internet sites.
• Keep all the details of purchases by printing the invoice. If user needs to complain at a later
date, these pages will provide the information needed.
• Accounts should not be kept open after transaction for a long time as this gives hackers an
opportunity to hack the password or relevant information from users PC or destroy user’s
important information.
• Never purchase things from a new website or portal when there is reasonable chances of
suspicion.
• Whenever possible customers should always opt for Cash-on-Delivery option rather than
using credit cards or debit cards. This helps in protecting them against fraud.
Conclusion
The problem of consumer protection in the framework of e-commerce has gained a huge amount
of consideration both from academicians and policy-makers. The governments as well as inter-
governmental organizations have come up with various frameworks to deal with e-commerce
and e-consumers.
But a review of existing legal framework shows that it has failed to address e-consumer needs. It
has not been able to protect the consumers form infringement of their rights. The Consumer
Protection Act, 1986 specifically excludes from its ambit the rendering of any service that is free
of charge. If an online platform is not charging the users, the CPA may not apply. Thus India is
in need of consolidating the law to deal with all above-mentioned situations so that the electronic
consumers’ right can be protected properly.
Do not stress, take time and do your best.

I believe that you will do very well.
BEST OF LUCK STUDENTS!!!!!!

DO WELL IN YOUR EXAMS!!!!!!
**************************************************

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Chanakya National Law University Patna LAW OF TORTS NOTES ( B.A.LL.B & BBA.

LLB (1st year)

TORT – Definition, Nature and Scope

BEST OF LUCK STUDENTS

C. ANALYSIS OF WINFIELD’S DEFINITION OF TORT:

1. Duty primarily fixed by law:

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5. Criticism (shortcomings) of Winfield’s definition:

Compiled By: - Ms. Sneha

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D. ANALYSIS OF SALMOND’S DEFINITION OF TORT

1. Tort is a civil wrong.

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The three main essential constituents of tort are:

Wrongful act, Legal Damage and Legal remedy

BEST OF LUCK STUDENTS

g) So wherever there is an infringement of a private legal right, there arises a possibility

Compiled By: - Ms. Sneha

BEST OF LUCK STUDENTS

i. Contemptuous damages or derisory damages: These damages are awarded when

Compiled By: - Ms. Sneha

BEST OF LUCK STUDENTS

F. LEGAL MAXIM - Ubi Jus Ibi Remedium:

G. FOUNDATIONS OF TORTIOUS LIABILITY – 2 Theories

1) Theory – 1 : ‘Wider and narrower’ theory, or, “Growing Tree” Theory

Compiled By: - Ms. Sneha

BEST OF LUCK STUDENTS

a) This theory is supported by Salmond, Glanville Williams and others.

BEST OF LUCK STUDENTS

Compiled By: - Ms. Sneha

BEST OF LUCK STUDENTS

I. Tort versus Contracts: A comparative analysis:

J. Tort versus Breach of Trust

Compiled By: - Ms. Sneha

BEST OF LUCK STUDENTS

K. Tort versus Quasi – Contract

BEST OF LUCK STUDENTS

M. LEGAL MAXIM - Damnum sine Injuria

BEST OF LUCK STUDENTS

3. Malice: When an act is done with bad intention, it is called ‘malice’.

4. Malfeasance: Commission of illegal / wrongful act:

BEST OF LUCK STUDENTS

motive. It amounts to doing an act that is ought not to be done.

O. Example: – Negligence. Here neither intention, nor, motive is material.

Rylands v Fletcher, 1868 LR 3 (HL) 330 - Strict liability

M.C. Mehta v Union of India AIR 1987 SC 1086 - Absolute liability

State of Rajasthan v Vidyawati, AIR 1962 SC 933 - Vicarious liability

Compiled By: - Ms. Sneha

BEST OF LUCK STUDENTS

GENERAL DEFENSES IN TORTS

WHEN PLAINTIFF IS THE WRONGDOER

VIS MAJOR OR ACT OF GOD

ACTS DONE FOR PRIVATE DEFENCE

ACT DONE IN RESPECT TO STATUTORY AUTHORITY

or conditional.Such a condition may be express or implied. In case of absolute statutory authority

VICARIOUS LIABILITY OF STATE

Vicarious Liability: An Introduction

(1) Liability of the principal for the tort of his agent;

(2) Liability of partners of each other’s tort;

(3) Liability of the master for the tort of his servant.

(4) Liability of the State or Liability of the Administration.

Constituents of Vicarious Liability

So the constituents of vicarious liability are: