NOTES ON LAW OF TORT

I. Definition & Essentials of Tort

1) Question:- Define the term tort. Discuss in detail essentials/ingredients/elements/components/ general
conditions under tort.
Or
Question:- Injuria sine damnum is actionable, but Damnum sine injuria is not actionable. Discuss with decided
case laws.
Answer:-

I. Introduction.

The word tort is of French origin and is equivalent of the English word wrong. It is derived from the
Latin word tortum, which means twisted or crooked. It implies conduct that is twisted or crooked. Tort is
commonly used to mean a breach of duty amounting to a civil wrong.
A tort arises due to a person’s duty to others which is created by one law or the other. A person who
commits a tort is known as a tortfeaser, or a wrongdoer. Where they are more than one, they are called joint
tortfeaser. Their wrongdoing is called tortuous act and they are liable to be sued jointly and severally.
The principle aim of the Law of tort is compensation for victims or their dependents. Grants of
exemplary damages in certain cases will show that deterrence of wrong doers is also another aim of the law of
tort.

II. 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.,

III. Definition.

Salmond- It is a civil wrong for which the remedy is a common law action for unliquidated damages and
which is not exclusively the breach of a trust or other merely equitable obligation.

Winfield “Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages.”

Fraser: A tort is an infringement of a legal right in rem of a private individual, giving a right of
compensation of the suit of the injured party.

IV. Objectives of Law of Torts

• to determine the rights between parties to dispute

• to protect certain rights recognized by law
• to prevent the continuation or repetition of a harm
• to restore the property to its rightful owner
V. Essentials/ingredients/elements/components/ general conditions of tort.

If the plaintiff wants to claim compensation, then he must prove all the essentials of the tort. Following are
the essentials of tort which the plaintiff has to prove.

A. Wrongful Act

To determine Liabilities in tort it must be proved that the act or omission done by the one person was a
wrongful. The act or omission must be legally wrongful. Violation of moral, social & religious rights does not
come under the category of torts.

B. Legal Damage

Another essential element is wrongful act or omission committed by one person must result in legal
damages to the other i.e. such act or omission resulted into violation of legal rights of another person.

The sum of money awarded by court to compensate damage is called damages. Damage means the loss
or harm caused or presumed to be suffered by a person as a result of some wrongful act of another. Legal
damage is not the same as actual damage. In other words legal damage means the loss which results from the
violation of legal right.

The real significance of legal damage is illustrated by two maxims namely: Injuria sine damno and
Damnum sine injuria

1. Injuria Sine Damno –

Injuria means violation of legal right

Sine means without or in absence of
Damnum means damage or loss physical or mental
It means violation of a legal right without causing any harm, loss or damage to the plaintiff. There are two
kinds of torts: firstly those torts which are actionable per se, i.e. actionable without the proof of any damage or
loss. For instance, trespass to land, is actionable even though no damage has been caused as a result of the
trespass.
Secondly, the torts which are actionable only on the proof of some damage caused by an act. For
successful actions the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e.
there is injuria.

Case Laws on Injuria Sine Damnum

Ashby vs White 1703 -In this case the defendant, a reputed officer in a parliamentary election, wrongfully
refused to take the vote of plaintiff, although the plaintiff did not suffer any loss by this refusal because the
candidate for whom he wanted to vote won in spite of that. Holt, C.J said, - “every injuria imports damage
though it does not cost the party one farthing”. So the defendant was held liable to pay damages to plaintiff.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested while going to
assembly session. He was not produced before a magistrate within the requisite period. It was held that this was
the violation of his fundamental rights. Even though he was release later, he was awarded 50,000RS as
exemplary damages by SC.
 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 favor 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.

2. Damnum sine Injuria

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.

Case Laws on Damnum Sine Injuria

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’.

In Mayor of Bradford v Pickles (1895) AC 597, When Bradford Corporation refused to buy his land, the
defendant got annoyed and sank a shaft in his own land . This diminished and discolored 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.

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”.

C. Legal Remedy –

The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without
a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if
he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy;
want of right and want of remedy are reciprocal.

Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not
conclusive that no right exists.

VI. Conclusion

It is concluded that whenever by the wrongful act of one person another person’s legal right is violated,
such another person can claim compensation. It means if the plaintiff wants to claim compensation he must
prove all the essentials of tort.

2) Question: Define the term Tort and distinguish between Tort and Crime.
I. Introduction

See question no 1

II. Meaning of Tort

See question no 1

III. Object of Law of Tort

See question no 1

IV. Definition of Tort

See question no 1

V. Difference between Tort and Crime

Tort Crime
Tort occurs when the right available to all the Crime occurs when the right available to all the
persons in general (right in rem) is violated. persons in general (right in rem) is violated and
it also seriously affects the society.
Act is comparatively less serious and affects Act is comparatively more serious and affects
only the person. the person as well as the society.
Intention is usually irrelevant. In most torts , Intention is the most important element in
However there are a few exception such as establishing criminal liability. A crime cannot
Malicious prosecution, defamation etc., happen without Mens Rea.
where motive plays a part and are called
intentional torts.
It is a private wrong. It is a public wrong.
Since it is a private wrong, the wronged Since it is a public wrong, the suit is filed
individual himself must file a suit for damages. by the state
The suit is for damages. The suit is for punishment.
Compromise is possible between the parties. There is no compromise for the punishment.
For example, a person who has been defamed, For example, if a person is guilty of murder, he
can compromise with the defamer for a certain cannot pay money and reduce his sentence.
sum of money.
Compounding is possible. Compounding is generally not possible.
Justice is met by compensating the victim for Justice is met by punishing the aggressor
his injury and exemplary damages may also be by prison or fine. In some specific cases as
awarded to the victim. In Bhim Singh vs State given in IPC compensation may be given to
of J K AIR 1986 SC 494- the plaintiff was the victim.
awarded exemplary damages for violation of
his rights given by art 21.
Law of Torts is not codified. Tortious acts Law of crime is codified. Several criminal
(with a few exceptions) are usually not acts such as assault and battery are also
criminal acts. grounds for tortious suit.

VI. Difference between Tort and Contract

Tort Contract
Tort occurs when the right available to all the A breach of contract occurs due to a breach of
persons in general (right in rem) is violated a duty (right in persona) agreed upon by the
without the existence of any contract. parties themselves.

Victim is compensated for unliquidated Victim is compensated as per the terms of the
damages as per the judgment of the judges. contract and damages are usually liquidated.
Thus, damages are always unliquidated.

Duty is fixed by the law of the land and is Duty towards each other is affixed by the
towards all the persons. contract agreed to by the parties.

Doctrine of privity of contract does not apply Only the parties within the ambit of ‘privity of
because there is no contract between the contract’ can initiate the suit.
parties. This was held in the case of
Donaghue vs Stevenson 1932.

Tort applies even in cases where a contract is When a contract is void, there is no question of
void. For example, a minor may be liable in compensation. For example, a contract with a
Tort. minor is void ab initio and so a minor cannot
be held liable for anything.
In some torts like malicious prosecution , Motive is immaterial in contracts
motive is relevant.
Justice is met by compensating the victim for Justice is met only by compensating the victim
his injury and exemplary damages may also be for actual loss.
awarded to the victim. In Bhim Singh vs State
of J K AIR 1986 – the plaintiff was awarded
exemplary damages for violation of his rights
given by art 21.

II. Negligence
3) Question: Explain the essentials of the tort of negligence with the help of decided case laws.

Or

Define Negligence. What are the essential ingredient of Negligence?

Answer:

I. Introduction

According to Judge Alderson, negligence means the breach of a duty caused by the omission to do
something, which a reasonable man would do, or doing of something, which a prudent and reasonable man
would not do. Negligence consist of neglect to use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary care and skill, by which neglect, the person has suffered
injury to his person or property.
II. Meaning: In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies
failure to exercise standard of care which the doer as a reasonable man should have exercised in the
circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable that failure to do
so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking
such adequate precautions.

III. Definition:

Winfield : According to Winfield - Negligence is the breach of a legal duty to take care which results in
damage, undesired by the defendant to the plaintiff.

In Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781; ALDERSON, B. defined negligence
as, negligence is the omission to do something which a reasonable man…….. would do, or doing something
which a prudent or reasonable man would not do.

IV. Essentials of negligence: -

In an action for negligence, the plaintiff has to prove the following essentials:

1. Duty to take care:

It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining
such duty. It depends in each case whether a duty exists.

Donoghue v. Stevenson – A purchased a bottle of ginger beer from a retailer for the appellant. She consumed
that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for
compensation. The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of
Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter,
and that he would be liable on the breach of the duty.

IshwarDevi Verses Union of India

In this case, when the deceased placed his foot on the foot-board of the bus and had not yet gone in, the
conductor in a very hasty manner rang the bell and the driver started the bus. All this was done in an attempt to
overtake another bus as a result of which the deceased got squeezed or sandwiched between the two buses and
sustained serious injuries and died. The conductor and driver of the bus were held liable for the rash and
negligent act.

2. Breach of duty to take care:

Breach of duty means non-observance of due care which is required in a particular situation. In other words a
defendant must breach in such a duty to take care. Once a claimant has proved the duty of care is owed he must
then show that the defendant breached that duty. This is merely when the defendant falls below the standard of
care appropriate to the duty. Breach of duty is measured objectively by the ‘reasonable man test’. The
reasonable man is the ordinary person performing the particular task: he is expected to perform it reasonably
competently. Thus, when I am riding my bicycle, I am expected to be a reasonably competent cyclist who can
ride a bicycle. Therefore, a number of factors that can be considered to raise or lower the standard. This is
logical because a reasonable person will rightly take greater risks in an emergency, and take more care when the
risk of harm is greater.

In Municipal Corporation of Delhi Verses Subhagwanti, a clock tower situated in the heart of the city,
i. e., Chandni Chowk, Delhi, collapsed causing the death of a number of persons. The structure was 80 years
old whereas its normal life was 40-45 years. The MCD, who was having control of it had obviously failed
to get the periodical checkup and the necessary repairs done pay compensation for the consequences of
the collapse of the structure.

In'Mata Prasad Verses Union of India, the gates of railway crossing were open. While the driver of the truck
tried to cross the railway line, the truck was hit by incoming train. It was held that when the gates of the level
crossing were open, the driver of the truck could assume that there was no danger in crossing the railway
track. There was negligence on the part of the railway administration and they were, therefore, held liable.

Latimer v AEC [1953] AC 643 House of Lords

The claimant worked in the defendant's factory and slipped up on the factory floor. The factory had become
flooded due to adverse weather conditions. The defendant's had put up warning signs mopped up and placed
sawdust in the most used places to make it as safe as possible. The court held not liable to the defendant.

3. Actual damage

The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of
the breach of the duty. The harm may fall into following classes:-

• physical harm, i.e. harm to body;

• harm to reputation;
• harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
• economic loss; and
• mental harm or nervous shock.

V. No liability when injury is not foreseeable

The defendant is having a liability for tort of negligence only if the injury is foreseeable and if the injury which
cannot be foreseen by ordinary care and caution the defendant will not be held liable.
Cates v. Mangini Bros
In this case the plaintiff was injured by the falling of ceiling fan. The fan felt by the reason of defect in the
suspension rod of the fan, this defect was latent one which cannot be foreseen. The court released the defendant
from the liability.
Ryan v. Young
In this case the accident took place due to the sudden death of the driver on the steering wheel. The driver was
quite healthy when the steering was hand over to him and the death of the driver was not expected. The injury
was not foreseeable that’s why the defendant was not held liable.

VI. Conclusion
If the plaintiff want to claim compensation then he must prove that the defendant owes a duty to take
care and he commits a breach in such a duty to take care due to which the damage resulted to the plaintiff.
4. Question: What do you mean by negligence? Discuss defenses available in an action for negligence.
Answer:
I. Introduction
Refer question no 3.

II. Meaning: In everyday usage, the word ‘negligence’ denotes mere carelessness. In legal sense it signifies
failure to exercise standard of care which the doer as a reasonable man should have exercised in the
circumstances. In general, there is a legal duty to take care when it was reasonably foreseeable that failure to do
so was likely to cause injury. Negligence is a mode in which many kinds of harms may be caused by not taking
such adequate precautions.

III. Definition:

WINFIELD : According to Winfield - Negligence is the breach of a legal duty to take care which results in
damage, undesired by the defendant to the plaintiff.

In Blyth v. Birmingham Water Works Co., (1856) LR 11 Exch. 781; ALDERSON, B. defined negligence
as, negligence is the omission to do something which a reasonable man…….. would do, or doing something
which a prudent or reasonable man would not do.

IV. Essentials of negligence: -

I. Duty to take care

II. Breach of duty to take care
III. Actual damage

V. Defenses for Negligence

Following are the defenses for the tort of negligence.
A. Act of God
Act of God includes those consequences which are occasioned by elementary force of nature unconnected with
the agency of man. Common examples of Act of God are the falling of a tree, a flash of lightening, a tornado or
a flood.
The essential conditions of this defenses are,
(1) the event causing damages was the result of natural forces without any intervention from human agency, and
(2) the event was such that the possibility of such an event could not be recognized by using reasonable care and
foresight.

Nicholas v. Marshland
In this case the defendant constructed an artificial lake. Due to the heavy rainfall in one night the water flooded
over the lake and washed out the three Bridges of the plaintiff. Consequently the plaintiff filed a suit against the
defendant, but the defendant took the defense of act of God and he was succeed in his claim.

B. Inevitable Accident
All recent authorities support the view that 'inevitable accident’ “negatives liability. An 'inevitable accident' is
that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It means an
accident physically unavoidable. It does not apply to Anything which either party might have avoided. It is
an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to
the exigency, and the Circumstances, in which he was placed. If in the performance of a lawful act, done
with all due care, damage ensues through some unavoidable reason, such damage affords no cause of action.
"People must guard against reasonable probabilities, but they are not bound to guard against fantastic
possibilities.

C. Contributory negligence
All recent authorities support the view that 'inevitable accident’ “negatives liability. An 'inevitable
accident' is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It
means an accident physically unavoidable. It does not apply to anything which either party might have
avoided. It is an accident such as the defendant could not have avoided by use of the kind and degree of care
necessary to the exigency, and the circumstances, in which he was placed. If in the performance of a lawful
act, done with all due care, damage ensues through some unavoidable reason, such damage affords no cause of
action. "People must guard against reasonable probabilities, but they are not bound to guard against fantastic
possibilities.

Harris v. Toronto Transit Commission

In the case the boy was in the bus while he was projecting his hand out of the window he sustained injury from
the coming vehicle. The driver warned him repeatedly but the boy failed to evict his hand from the window.
Plaintiff filed the suit for the tort of negligence, but the defendant took the defense of contributory negligence
and he was succeed.

1. Last opportunity rule

By this rule the person who is having a later opportunity to avoid the accident is liable for the tort of negligence.
This principle is originated from the defense of contributory negligence.

Davis v. Mann
In this case the plaintiff tied the four feet of the donkey and left it on the narrow highway. The defendant while
driving his two wheeler very fast dashed the donkey and donkey died. The owner of the donkey filed a suit
against the motor cyclist. The motor cyclist took the defense of contributory negligence but the court applied the
principle of last opportunity rule and held liable to the motor cyclist because he was having a later opportunity
to avoid the accident by applying the brake.
2. Apportionment of Damages
According to this principle the liability of the defendant and the plaintiff will be decided in percentage, and
according to the percentage of negligent act of the defendant the court award compensation to the plaintiff.
Vidya Devi v M. P. Road Transport Corp.

D. Exception to the defense of Contributory Negligence.

The defense of contributory negligence cannot be alleged in the following cases.
I. Doctrine of alternative danger.
There may be certain circumstances when the plaintiff is justified in taking some risk where some
dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous
situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing
so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.
Jones v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven so
negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the
plaintiff would be entitled to recover.

II. Contributory negligence by child.

The defense of contributory negligence cannot be taken against the child. Because the care which is
expected in case of child is different as expected in case of major.

III. Presumption that others are careful.

The defense of contributory negligence cannot be taken if the presumption is that the others are careful.

Conclusion.
When the person is having a duty to take care and care not taken his liability will arise for the tort of
negligence. But the defendant can avoid his liability if his act comes under any of the above defenses.

III. Nuisance
5. Question: what is Nuisance? Discuss the concept & its kinds.
Answer:
I. Introduction
The word “nuisance” is derived from the French word “nuire”, which means “to do hurt, or to annoy”.
One in possession of a property is entitled as per law to undisturbed enjoyment of it. If someone else’s improper
use in his property results into an unlawful interference with his use or enjoyment of that property or of some
right over, or in connection with it, we may say that tort of nuisance occurred. In other words, Nuisance is an
unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connection with it.
Nuisance is an injury to the right of a person in possession of a property to undisturbed enjoyment of it and
result from an improper use by another person in his property.

II. Definition
Stephen defined nuisance to be “anything done to the hurt or annoyance of the lands, tenements of
another, and not amounting to a trespass.”

According to Salmond, “the wrong of nuisance consists in causing or allowing without lawful
justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the
plaintiff, e.g. water, smoke, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals”.

III. Kinds of nuisance

Nuisance is of two kinds:
A. Public Nuisance
Under Section 3 (48) of the General Clauses Act, 1897, the words mean a public nuisance defined by the
Indian Penal Code.

Section 268 of the Indian Penal Code, defines it as “an act or illegal omission which causes any
common injury, danger or annoyance, to the people in general who dwell, or occupy property, in the vicinity, or
which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to
use any public right.”
Simply speaking, public nuisance is an act affecting the public at large, or some considerable portion of
it; and it must interfere with rights which members of the community might otherwise enjoy.
Thus acts which seriously interfere with the health, safety, comfort or convenience of the public
generally or which tend to degrade public morals have always been considered public nuisance.

Examples of public nuisance are Carrying on trade which cause offensive smells, Carrying on trade
which cause intolerable noises, Keeping an inflammable substance like gunpowder in large quantities, Lister’s
case, Drawing water in a can from a filthy source.
Public nuisance can only be subject of one action, otherwise a party might be ruined by a million suits.
Further, it would give rise to multiplicity of litigation resulting in burdening the judicial system. Generally
speaking, Public Nuisance is not a tort and thus does not give rise to civil action.

In the following circumstances, an individual may have a private right of action in respect a public
nuisance.

1. He must show a particular injury to himself beyond that which is suffered by the rest of public i.e. he must
show that he has suffered some damage more than what the general body of the public had to suffer.
2. Such injury must be direct, not a mere consequential injury; as, where one is obstructed, but another is left
open.
3. The injury must be shown to be of a substantial character, not fleeting or evanescent.

In Solatu v. De Held (1851) 2 Sim NS 133, the plaintiff resided in a house next to a Roman Catholic
Chapel of which the defendant was the priest and the chapel bell was rung at all hours of the day and night. It
was held that the ringing was a public nuisance and the plaintiff was held entitled to an injunction.

B. Private Nuisance
Private nuisance is the using or authorizing the use of one’s property, or of anything under one’s control,
so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its
enjoyment by interfering materially with his health, comfort or convenience.
In contrast to public nuisance, private nuisance is an act affecting some particular individual or
individuals as distinguished from the public at large. The remedy in an action for private nuisance is a civil
action for damages or an injunction or both and not an indictment.

I. Elements of Private Nuisance

 Private nuisance is an unlawful interference and/or annoyance which cause damages to an occupier or
owner of land in respect of his enjoyment of the land.

Thus the elements of private nuisance are:

1. unreasonable or unlawful interference;
2. such interference is with the use or enjoyment of land, or some right over, or in connection with the land; and
3. damage.

Nuisance may be with respect to property or personal physical discomfort.

1. Injury to property
In the case of damage to property any sensible injury will be sufficient to support an action.
In Ram Raj Singh v. Babulal, AIR 1982 All. 285:, the plaintiff, a doctor, complained that sufficient
quantity of dust created by the defendant’s brick powdering mill, enters the consultation room and causes
discomfort and inconvenience to the plaintiff and his patients.
The Court held that when it is established that sufficient quantity of dust from brick powdering mill set up near
a doctor’s consulting room entered that room and a visible thin red coating on clothes resulted and also that the
dust is a public hazard bound to injure the health of persons, it is clear the doctor has proved damage particular
to himself. That means he proved special damage.

In Dilaware Ltd. v. Westminister City Council, (2001) 4 All ER 737 (HL):, the respondent was owner
of a tree growing in the footpath of a highway. The roots of the tree caused cracks in the neighboring building.
The transferee of the building of the building, after the cracks were detected, was held entitled to recover
reasonable remedial expenditure in respect of the entire damage from the continuing nuisance caused by the
trees.

2. Physical discomfort
In case of physical discomfort there are two essential conditions to be fulfilled:
a. In excess of the natural and ordinary course of enjoyment of the property –
In order to be able to bring an action for nuisance to property the person injured must have either a
proprietary or possessory interest in the premises affected by the nuisance.

b. Materially interfering with the ordinary comfort of human existence

The discomfort should be such as an ordinary or average person in the locality and environment would
not put up with or tolerate.

Following factors are material in deciding whether the discomfort is substantial:

 its degree or intensity;
 its duration;
 its locality;
 the mode of user of the property.
 In Datta Mal Chiranji Lal v. Lodh Prasad, AIR 1960 All 632: The defendant established an electric flour
mill adjacent to the plaintiff’s house in a bazaar locality and the running of the mill produced such noise and
vibrations that the plaintiff and his family, did not get peace and freedom from noise to follow their normal
avocations during the day. They did not have a quiet rest at night also.
It was held that the running of the mill amounted to a private nuisance which should not be permitted.

In Radhey Shiam v. Gur Prasad Sharma, AIR 1978 All 86: It was held by the Allahabad High Court
held that a permanent injunction may be issued against the defendant if in a noisy locality there is substantial
addition to the noise by introducing flour mill materially affecting the physical comfort of the plaintiff.

IV. Defenses to nuisance

Following are the valid defences to an action for nuisance
It is a valid defence to an action for nuisance that the said nuisance is under the terms of a grant.

a. Prescription
A title acquired by use and time, and allowed by Law; as when a man claims any thing, because he, his
ancestors, or they whose estate he hath, have had possession for the period prescribed by law. This is there in
Section 26, Limitation Act & Section 15 Easements Act.

Three things are necessary to establish a right by prescription:

1. Use and occupation or enjoyment;
2. The identity of the thing enjoyed;
3. That it should be adverse to the rights of some other person.

A special defense available in the case of nuisance is prescription if it has been peaceable and openly
enjoyed as an easement and as of right without interruption and for twenty years. After a nuisance has been
continuously in existence for twenty years prescriptive right to continue it is acquired as an easement
appurtenant to the land on which it exists. On the expiration of this period the nuisance becomes legalized ab
initio, as if it had been authorized in its commencement by a grant from the owner of servant land. The time
runs, not from the day when the cause of the nuisance began but from the day when the nuisance began.

In Sturges v. Bridgman (1879) 11 Ch.D. 852 A had used a certain heavy machinery for his business,
for more than 20 years. B, a physician neighbor, constructed a consulting room adjoining A’s house only shortly
before the present action and then found himself seriously inconvenienced by the noise of A’s machinery.

B brought an action against A for abatement of the nuisance. It was held that B must succeed. A cannot plead
prescription since time runs not from the date when the cause of the nuisance began but from the day when the
nuisance began.

b. Statutory Authority
Where a statute has authorized the doing of a particular act or the use of land in a particular way, all
remedies whether by way of indictment or action, are taken away; provided that every reasonable precaution
consistent with the exercise of the statutory powers has been taken. Statutory authority may be either absolute or
conditional.
In case of absolute authority, the statute allows the act notwithstanding the fact that it must necessarily
cause a nuisance or any other form of injury.
In case of conditional authority the State allows the act to be done only if it can be without causing
nuisance or any other form of injury, and thus it calls for the exercise of due care and caution and due regard for
private rights.

In Vaughan v. Taff Vale Rly (1860) 5 H.N. 679, The defendants who had authority by Statute to
locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks.

V. Remedies for nuisance

The remedies available for nuisance are as follows:
i. Injunction-
It maybe a temporary injunction which is granted on an interim basis and that maybe reversed or
confirmed. If it’s confirmed, it takes the form of a permanent injunction. However the granting of an injunction
is again the discretion of the Court

ii. Damages-
The damages offered to the aggrieved party could be nominal damages i.e. damages just to recognize
that technically some harm has been caused to plaintiff or statutory damages i.e. where the amount of damages
is as decided by the statute and not dependent on the harm suffered by the plaintiff or exemplary damages i.e.
where the purpose of paying the damages is not compensating the plaintiff, but to deter the wrongdoer from
repeating the wrong committed by him.

iii. Abatement-
It means the summary remedy or removal of a nuisance by the party injured without having recourse to
legal proceedings. It is not a remedy which the law favors and is not usually advisable. E.g. - The plaintiff
himself cuts off the branch of tree of the defendant which hangs over his premises and causes nuisance to him.

VI. Conclusion
The law of nuisance is almost an uncodified one. Yet it has grown and expanded through interpretation
and through a plethora of judgments. The concept of nuisance is one that arises most commonly in a man’s
daily life and the decision regarding the same has to be delivered on a case to case base ensuring that neither the
aggrieved plaintiff goes back uncompensated nor the defendant is punished unnecessarily. Indian Courts in the
matters of nuisance have borrowed quite intensively from the English principles as well as from the decisions of
the common law system along with creating their own precedents. This has resulted in a sound system of law
being developed that ensures fairness and well being of all i.e. the parties and the society at large.

IV. Defamation
6. Question: What do you mean by Defamation? Explain constituent elements of Defamation.
Or
Question: Define Defamation. What are the essential of Defamation.

Answer:
I. Introduction:
A man’s reputation is his property and is more valuable than any other tangible asset. Every man has the
right to have his reputation preserved. It is acknowledged as an inherent personal right of every person. It is a
jus in rem, a right good against all the people in the world. The degree of suffering caused by loss of reputation
far exceeds that caused by loss of any material wealth.
II. Definition:
According to Winfield, "Defamation is the publication of statement which tends to lower
a person in the estimation of right thinking members of society generally or which tends
to make them shun or avoid that person. It is libel if the statement be in permanent form,
the slander if it consists in significant words or gestures."
In the words of Park B., defamation is "a publication without justification or lawful
excuse, which is calculated to injure the reputation of another, by exposing him to hatred,
contempt or ridicule".
III. Types of Defamation
There are following two types of defamation

1.Libel:
The publication of a false and defamatory statement tending to injure the reputation of another person
without lawful justification or excuse. The statement must be in a printed form, e.g., writing, printing, pictures,
cartoons, statue, waxwork effigy etc.
2.Slander:
A false and defamatory statement by spoken words and/or gestures tending to injure the reputation of
others. It is in a transient form. It also involves the sign language used by the physically disabled.

IV. Essentials of Defamation/ Constituent elements of Defamation

Regardless of whether a defamation action is framed in libel or slander, the plaintiff must always prove
that the words, pictures, gestures etc are defamatory. Equally, the plaintiff must show that they refer to him.
Finally he must also prove that they were maliciously published. These are the three essential elements in a
defamation action.
(A) The statement must be defamatory
Any imputation which exposes one to disgrace and humiliation, ridicule or contempt, is defamatory. It
could be made in different ways as in it could be oral, in writing, printed or by the exhibition of a picture, effigy
or statue or by some conduct. According to Lord Atkins, whether a statement is defamatory or not depends upon
how the right thinking members of society the society are likely to take it. Yet the term „right-thinking members
of society‟ is highly ambiguous. The standard to be applied is that of a right-minded citizen, a man of fair
average intelligence, and not that of a special class of persons whose values are not shared or approved by the
fair minded members of that society generally. If the likely effect of the statement is the injury to the plaintiff’s
reputation, it is no defense to say that it was not intended to be defamatory. When the statement causes anyone
to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem, it is defamatory.
 In D.P. Choudhary v. Manjulata there was publication of a statement in a local daily in Jodhpur that
Manjulata on the pretext of attending her evening BA classes ran away with a boy named Kamlesh. The girl
belonged to a well educated respectable family. She was seventeen years of age. The news item was untrue and
had been irresponsibly published without any justification. This was defamatory and the defendants, the
newspaper publishers were held liable.

The Innuendo
Where the words are not on the face of them defamatory or where the imputation is made in an oblique
way or by way of question or exclamation or' conjecture or irony innuendo is necessary. When the
words are not prima facie defamatory but innocent, the pleading of the
Plaintiff should contain the defamatory statement which the plaintiff attributes to it. Such a
Statement given by the plaintiff is called ah innuendo.
Thus, sometimes the statement may prima facie be innocent but because of some latent or secondary
meaning, it may be considered to be defamatory. When the natural and ordinary meaning is not defamatory
but the plaintiff wants to bring an action for defamation he must prove the latent or secondary meaning that
is innuendo, which makes the statement
defamatory. for example, X published a statement that, "Mrs. Y had given birth to a child."
Here, the statement in its natural meaning is not defamatory. But it may become defamatory
in certain circumstances that is when Mrs.Y pleads that she was married only two months
ago. These particular or additional circumstances in her pleadings is called "innuendo'.
When the innuendo is proved by the plaintiff, the words which are not defamatory in
the ordinary sense may become defamatory and the defendant will be liabless. For ex- Saying even A is
an angel may be slander if the statement was understood to refer to a criminal gang known as “The Angels.”
(B) The statement must refer to the plaintiff
The plaintiff has to prove that the statement which is claimed to be defamatory actually refers to
him/her. It is immaterial that the defendant did not intend to defame the plaintiff, if the person to whom the
statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is
nevertheless liable.
In Hulton Co. V Jones the defendants published a fictional article in their newspaper in which
aspersions were cast on the morals of a fictitious character-Artemus Jones, stated to be a Churchwarden. On this
basis one Artemus Jones, a barrister, brought an action against the defendants. The defendants pleaded that
Artemus was a fictional character and the plaintiff was not known to them and thus they had no intention to
defame him. Notwithstanding this, they were held liable because a substantial number of persons who knew the
plaintiff and had read the editorial would have assumed it to be referring to him.
However, when the defamation refers to a class of persons, no member of that group can sue unless he
can prove that the words could reasonably be considered to be referring to him. When the statement though
generally referring to a class can be reasonably considered to be referring to a particular plaintiff, his action will
succeed. In Fanu v. Malcomson, in an article published by the defendants, it was mentioned that cruelty was
practiced upon employees in some of the Irish factories. From the article as a whole including a reference to
Waterford itself, it was considered that the plaintiff’s Waterford factory was aimed at in the article and the
plaintiff was, therefore, successful in his action for defamation.

(C) The statement must be published

 Publication means making the defamatory matter known to some other third part and unless that is done,
no civil action for defamation can lie in court. Communication to the plaintiff won’t count because defamation
is injury to the reputation which consists in the estimation in which others hold him and not a man’s own
opinion of himself. However, if a third party wrongfully intercepts and reads a letter sent to the plaintiff it is not
defamation. However when the defendant knows that the letter is likely to be read by someone else and it
contains some personal information only meant for the recipient, then he will be liable.
Also, in the eyes of the law, husband and wife are one person and the communication of a defamatory
matter from the husband to the wife or vice versa is no publication. When the repetition of the defamatory
matter is involved, the liability of the person who repeats that defamatory matter is the same as that of the
originator, because every repetition is a fresh publication giving rise to a fresh cause of action. Not only the
author is liable but the editor, printer or publisher would be liable in the same way.

V. Conclusion

The laws in place to counter the menace of defamation are both satisfactory and reasonable but in
certain areas need to be made more stringent so as to dissuade the celebrity crazy media from wantonly
publishing and broadcasting fraudulent, defamatory matter in order to make instant money. Thus the protection
of privacy and the prevention of press harassment is also an important issue which needs to be redressed with
the better implementation of laws already existing.

7. Question: What is Defamation? Distinguish between Libel and Slander.

Or
Question: Define Defamation. Explain its different modes with decided cases.

Answer:
I. Introduction
See introduction of question no. 6.

II. Definition:
See definition of question no. 6.

III. Types of Defamation

The matter is governed by common law. The common law recognized two forms of defamation that is
libel and slander. There are distinct differences of these two forms of defamation. The difference lies in the
means or medium by which the defamatory material is communicated. It used to be a fundamental distinction
that between a written or printed word which is concludes as libel and spoken words which are considered as
slander.

A) Libel
But, nowadays the general view of libel is whether the ‘publication' is in a permanent form, in other
forms it is a slander. Defamation in a permanent forms and is usually visible to the eye, such as items in writing,
email, pictures, statutes or effigies. Section 3 of the Act stated that broadcasting of words by means of radio
communication shall be treated as communication in a permanent form. Youssoupoff v Metro-Goldwyn-
Mayer Pictures Ltd (1934) 50 TLR 581, where the defendants made a film which falsely imputed that the
plaintiff had been raped or seduced by Rasputin. The defamatory matter was in pictorial (as opposed to
soundtrack) part of the picture and was held as libel. The judge in the case, Slesser Lord Judge referred to a
permanent matter capable of being seen by the eye.

Libel is actionable per se, which means the plaintiff will not have to prove any special damage which is
calculable as a specific sum of money. This is law presumes that when a person's reputation is assailed, some
damage must be resulted. For example, when a bank wrongfully prints the words “Account Closed” on a cheque
that they bound to honour, they are liable under tort of defamation.

B) Slander
Slander is defamation in a temporary or transient form. Publication is made through spoken words or gestures.
This type of defamation is not actionable per se. it means that the plaintiff must prove actual or special damage
in order to succeed in his action. Slander is actionable only on proof of actual damage, except in the following
circumstances.
i) Firstly, the imputation of criminal offence where the offence must be punishable with imprisonment but a
specific offence need not be mention. For instance, the phrase of “I know enough to put you into gaol”, is held
as slander.

ii) Secondly, the imputation of a disease where the allegation must be that the claimant is currently suffering
from a contagious or infectious disease. For instances, the venereal disease, leprosy are within this rule.

iii) Thirdly, the imputation of unchastity or adultery to any woman or girl, for example the Slander of Woman
Act 1891 section 1 states that “words spoken and published …. Which imputed unchastity or adultery to any
women or girl shall not require special damage to render them actionable.

iv) Lastly, the imputation of unfitness or incompetence. This exception relates to allegations of unfitness,
incompetence or dishonesty in any profession, trade, calling or business held or carried on by the claimant.

IV. Difference between Libel and Slander

Following are the general differences between libel and slander.

First on the basis of nature,

Liable, the defamatory matter is in some permanent form, for example, effigy, written articles, printing,
picture, caricatures etc. It is addressed to the eye where as In Slander, defamatory matter is in some transient
form, for example, gestures, gossips, rumors. It is addressed to the ear.

Second on the basis of position in English law,

Liable is criminal offence as well as a civil wrong whereas Slander is a civil wrong only.

Third on the basis of proof of special damage,

Liable is actionable per se whereas Slander is actionable on the proof of special damage.
Fourth on the basis of innocence
In Liable, The speaker may not be innocent where as In Slander The speaker is not innocent.

Fifth on the basis of breach of peace,

Liable conduces to a breach of peace whereas Slander is not so serious in consequence.

Sixth on the basis of period of limitations,

Under the English statutes of limitation, an action of libel is barred after 6 year. In India, the period of
limitation is one year whereas Under the English statutes of limitation, an action of slander is barred after 2
year. In India, the period of limitation is one year.

This is basically a position in English law, the above stated distinctions do not find place in India. In
India, libel and slander are treated alike, both of them are actionable per se. Both are considered to be an
offence under Indian Criminal Law.

V. Defenses to the Tort of Defamation

(A) Justification by truth

In a civil action for defamation, truth is a complete defense. However under criminal law, it must also be
proved that the imputation was made for the public good. Under the civil law, merely proving that the statement
was true is a good defense the reason being that “the law will not permit a man to recover damages in respect of
an injury to a character which he either does no or ought not to possess” The defense is available even if the
statement is made maliciously and if the statement is substantially true but incorrect in respect of certain other
minor particulars, the defense will still be available. The Defamation Act, 1952 (England) provides that if there
are several charges of defamation and the defendant is successful in proving the truth of only some of them, the
defense of justification might still be available if the charges not proved do not materially injure the reputation.
Although there is no specific provision in India regarding the above, the law is possibly the same as prevailing
in England.

(B) A fair and bona fide comment on a matter of public interest.

It involves making fair comments on matters of public interest. For this defense to be available, the following
essentials are required:(i) It must be a comment, i.e., an expression of opinion rather than an assertion of fact(ii)
The comment must be fair, i.e., must be based on the truth and not on untrue or invented facts(iii) The matter
commented upon must be of public interest. If due to malice on the part of the defendant, the comment is a
distorted one, his comment ceases to be fair and he cannot take such a defense. In Gregory V Duke of
Brunswick the plaintiff, an actor, appeared on the stage of a theatre but the defendant and other persons in
malice started hooting and hissing and thereby caused him to lose his engagement. This was held to actionable
and an unfair comment on the plaintiff’s performance and the defendants were held to be guilty.

(C) Privilege - It is of two kinds

:• Absolute Privilege: Certain statements are allowed to be made when the larger interest of the community
overrides the interest of the individual. No action lies for the defamatory statement even though it may be false
or malicious. In such cases, the public interest demands that an individual’s right to reputation should give way
to the freedom of speech. This privilege is provided to:
i)Parliamentary proceedings,
(ii) judicial proceedings,
(iii) Military and Naval proceedings and
(iv) State proceedings.

Qualified Privilege: For communications made in the course of legal, social or moral duty, for self-protection,
protection of common interest, for public good and proceedings at public meetings, provided the absence of
malice is proved. Also, there must be an occasion for making the statement. To avail this defense, the following
things must be kept in mind:(i) The statement should be made in discharge of a public duty or protection of an
interest(ii) Or, it is a fair report of parliamentary, judicial or other public proceedings(iii) The statement should
be made without any malice.

VI. Conclusion
The laws in place to counter the menace of defamation are both satisfactory and reasonable but in
certain areas need to be made more stringent so as to dissuade the celebrity crazy media from wantonly
publishing and broadcasting fraudulent, defamatory matter in order to make instant money. Thus the protection
of privacy and the prevention of press harassment is also an important issue which needs to be redressed with
the better implementation of laws already existing.

V. Vicarious Liability
8. Question: Discuss the Principles liability for the wrongs committed by others with the help of decided
case laws.
Or
Discuss the Law relating to Vicarious Liability.

Answer:
I. Introduction:
Generally the person himself is liable in the tort if he has committed any tortious act. But there are
certain circumstances in which one person is liable for the tort committed by another person, because of the
certain relationship. Vicarious liability arises when one party is responsible for the torts of another. This
situation occurs most frequently when an employer is held responsible for torts committed by an employee.

II. Meaning:

III. Basis of Vicarious Liability

The doctrine of vicarious liability is based on principles which can be summed up in the following two
maxims,
(a) Qui facit per alium facit per se, The maxim means, 'he who acts through another is deemed in law as
doing it himself. The master's responsibility for the servant's act had also its origin in this principle. The
reasoning is that a person who puts another in his place to do a class of acts in his absence, necessarily leaves to
determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the
manner in which it is done, consequently he is answerable for the wrong of the person so entrusted either in
the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been
done, provided what is done is not done from any caprice of the servant but in the course of the employment.

(b) Respondeat superior, This maxim means that, the superior must be responsible or let the principal be liable.
In such cases not only he who obeys but also he who command becomes equally liable This rule has its
origin in the legal presumption that all acts done by the servant in and about his master's business are
done by his master's express or implied authority and are, in truth, the act of the master. It puts the master in
the same position as if he had done the act himself. The master is answerable for every such wrong of the
servant as is committed in the course of his service, though no express command or privity is proved.
Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorized by
the former and committed by the latter.

IV. Principle & Agent

V. Firm & Partner

VI. Master & Servant

VII. Essentials of Vicarious Liability

A) The tort must be committed by servant.
If the plaintiff wants to file suit against the master, then he must prove that the tort committed by his
servant. There is difference between servant and independent contractor, if the tort committed by the
independent contractor he himself will be held liable not the person who has appointed the independent
contractor.

B) Tort must be committed in course of employment.

Master will be liable if the tort committed by his servant and the servant must commits that tort in the
course of employment. If he committed tort out of the course of employment the master will not be held liable.
Following are the example sof the tort committed within the course of employment.
1. Authorized act and their natural consequences.
Gregory v. Piper

2. Unauthorized modes of doing authorized act.

i. Carelessness of servant.
ii. Mistake of servant.
iii. Wilful wrong of servant
Limpus v. London General Omnibus Co.
iv. Fraud of servant.
Llyod v. Grace Smith & Co.
v. Negligent delegation authority by servant.
vi. Theft by servant.
Morris v. C. W. Martin & Sons ltd.

3. Exception
i. Outside the course of employment.
ii. Lending of servant.
iii. Doctrine of common employment

VIII. Conclusion.

VI. Strict Liability

9. Question: Explain Law relating to Strict Liability with illustration.
Or.
Explain the rule decided in Ryland v. Fletcher with its exceptions.
Answer:
I. Introduction:
Strict liability means liability without proof of any fault on the part of the wrongdoer. Once the
plaintiff is proved to have suffered damage from the defendant's wrongful conduct, the defendant is liable
whether there was fault on his part or not. Strict liability must be distinguished from absolute liability. Where
there is absolute liability, the wrong is actionable without proof of fault on the part of the wrong-doer and in
addition, there is no defense whatsoever to the action. Where there is strict liability, the wrong is
actionable without proof
of fault but some defenses may also be available.

II. Meaning:
Strict liability applies when a defendant places another person in danger, even in the absence of
negligence, simply because he is possession of a dangerous product, animal or weapon. The plaintiff need not
prove negligence.

III. Ryland v. fletcher

In this case, the House of Lords laid down the rule recognizing ‘no fault’ liability. The liability
recognized was ‘strict liability’, i.e. even if the defendant was not negligent or rather, even if the defendant did
not intentionally cause the harm or he was careful, he could still be made liable under the rule.
Facts of the case- the defendants got a reservoir constructed, through independent contractors, over his land for
providing water to his mill. There were old disused shafts under the site of the reservoir, which the contractors
failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the
shafts and flooded the plaintiff’s coal-mines on the adjoining land. The defendant did not know of the shafts and
had not been negligent although the independent contractors had been. Even though the defendant had not been
negligent, he was held liable.

IV. Essential of Strict Liability

The following are the essentials of the rule of strict liability.
A. Dangerous thing.
According to this rule, the liability for the escape of a thing from one’s land provided the thing collected
was a dangerous thing, a thing which is likely to do mischief if it escapes. In Rylands v Fletcher, the thing so
collected was a large body of water. The water collected in the reservoir was of a huge quantity and was thus
regarded to be of potential danger.

B. Escape.
For the rule in Rylands v Fletcher to apply, it is also essential that the thing causing the damage must
escape to the area outside the occupation and control of the defendant. The requirement of escape was firmly set
in the law by the House of Lords’ decision in Read v J. Lyons & Co Ltd. The claimant was employed by the
Ministry of Supply as an inspector of munitions in the defendants’ munitions factory and, in the course of her
employment there, was injured by the explosion of a shell that was being manufactured. It was admitted that
high explosive shells were dangerous but the defendants were held not liable because “escape” of the thing
should be from a place where the defendant had control and occupation of land to a place which is outside his
occupation and control.

C. Non-natural use of land.

Water collected in the reservoir in such a huge quantity in Rylands v Fletcher was held to be non-natural
use of land. Keeping water for ordinary domestic purposes is ‘natural-use’. For the use to be non-natural it must
be some special use bringing with it increased danger to others, and must not by the ordinary use of land or such
a use as is proper for the general benefit of community.
In Noble v Harrison, it has been held that trees on one’s land are not non-natural use of land. There
the branch of a non-poisonous tree growing on the defendant’s land, which overhung on the highway, suddenly
broke and fell on the plaintiff’s vehicle passing along the highway. The branch had broken off due to some
latent defect. It was held that the defendant could not be held liable under the rule in Rylands v Fletcher.
It has been held in Sochaki v Sas, that the fire in a house in a grate is an ordinary, natural, proper,
everyday use of the fire place in a room. If this fire spreads to the adjoining premises, the liability under the rule
in Rylands v Fletcher cannot arise.

V. Exception to the Rule.

The defendant can avoid his liability by taking the following defenses.

A. Plaintiffs own default.

If the damage is caused solely by the act or default of the plaintiff himself, he has no remedy. In Rylands
v Fletcher itself, this was noticed as a defense. If a person knows that there is a danger of his mine being
flooded by his neighbor’s operations on adjacent land , and courts the danger by doing some act which renders
the flooding probable he cannot complain.
So too in Ponting v Noakes, the plaintiff’s horse reached over the defendant’s boundary, nibbled some
poisonous tree there and died accordingly and it was held that the claimant could recover nothing, for the
damage was due to the horse’s own intrusion and alternatively there had been no escape of vegetation.

B. Act of God.
 Where the escape is caused directly by natural causes without human intervention in “circumstances
which no human foresight can provide and of which human prudence is not bound to recognize the possibility”,
the defense of Act of God applies. This was recognized by Blackburn J. in Rylands v Fletcher itself and was
applied in Nichols v Marsland. In this case the defendant for many years had been in possession of some
artificial ornamental lakes formed up by damming up a natural stream. An extraordinary rainfall, “greater and
more violent than any within the memory of the witnesses” broke down the artificial embankments and the rush
of escaping water carried away four bridges in respect of which damage the claimant sued. Judgment was given
for the defendant; the jury had found that she was not negligent and the court held that she ought not to be liable
for an extraordinary act of nature which she could not foresee or reasonably anticipate.

C. Consent of the Plaintiff

Where the plaintiff has expressly or impliedly consented to the presence of the source of danger and
there has been no negligence on the part of the defendant, the defendant is not liable. The exception merely
illustrates the general defense, volenti non fit injuria. The main application of the principle of implied consent is
occupied by different persons and the tenant of a lower suffers damage as a result of water escaping from an
upper floor, though it has to be said that the cases which have discussed this defense have tended to involve
perfectly ordinary domestic fittings which would to modern eyes be a natural use of land.

D. Act of third party.

If the harm has been caused due to the act of a stranger, who is neither the defendant’s servant nor the
defendant has any control over him, the defendant will not be liable under this rule. Thus in Box v Jubb the
overflow from the defendant’s reservoir was caused by the blocking of a drain by strangers, the defendant was
held not liable for that. Similarly, in Richards v Lothian some strangers blocked the waste pipes of a wash
basin, which was otherwise in the control of the defendants, and opened the tap. The overflowing water
damaged the plaintiff’s goods. The defendants were held not liable.

E. Statutory Authority.
The rule in Rylands v Fletcher may be excluded by statute. Whether it is so or not is a question of
construction of the particular statute concerned. In Green v Chelsea Waterworks Co, for instance a main
belonging to a water-works company, which was authorized by Parliament to lay the main, burst without any
negligence on the part of the company and the claimant’s premises were flooded; the company was held not
liable.
VI. Conclusion.
From the above discussion we conclude that the liability of the person will be strict liability only when
he brings some dangerous thing on his land and if it escapes out of the ordinary occupation and caused damage
to the person and property.

VII. Defenses/ Justification for Torts

10. Question: What are the justifications for the tort.

Or.
What are the defenses in an action for the tort.
Answer.
I. Introduction.
Even when a plaintiff provides proof for the existence of all the essential elements of a tort, it is possible
in some cases for the defendant to take certain defenses which can remove his liability, These defenses are
nothing but specific situations or circumstances in which a defendant is given a waiver for his tortious action.

II. Defenses/ Justification for Torts

The following are the defenses for the torts.
1. Volenti Non fit Injuria
When a person consents for infliction of a harm upon himself, he has no remedy for that in Tort. That
means, if a person has consented to do something or has given permission to another to do certain thing, and if
he is injured because of that, he cannot claim damages. For example, A purchases tickets for a Car race and
while watching the race, an collision of cars happens and the person is injured. Here, by agreeing to watching
the race, which is a risky sport, it is assumed that he voluntarily took on the risk of being hurt in an accident.
Thus, he cannot claim compensation for the injury.
Such a consent may be implied or express. For example, a person practicing the sport of Fencing with
another, impliedly consents to the injury that might happen while playing.

In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse show,
during which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened
and he fell in the course. He was seriously injured. It was held that the defendants had taken proper care in
closing the course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The
defendants were not held liable.

However, the action causing harm must not go beyond the limit of what has been consented. For
example, in a sport of fencing, a person consents to an injury that happens while playing by the rules. If he is
injured due to an action that violates the rules, he can claim compensation because he never consented to an
injury while playing without rules.
In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump from her
breast. But the hospital removed her uterus as well without any genuine reason. It was held that removing of her
uterus exceed beyond what she had consented for.

Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was
compelled by the master to do a certain task despite his protests, and if he is injured while doing it, the master
cannot take the defense of volenti non fit injuria because the consent was not free.

Exceptions - In the following conditions, this defense cannot be taken even if the plaintiff has consented -
Rescue Conditions - When the plaintiff suffers injury while saving someone. For example, A's horse is out of
control and is galloping towards a busy street. B realizes that if the horse reaches the street it will hurt many
people and so he bravely goes and control's the horse. He is injured in doing so and Sue’s A. Here A cannot
take the defense that B did that act upon his own consent. It is considered as a just action in public interest and
the society should reward it instead of preventing him from getting compensation.
Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this defense. For
example, even if a laundry, by contract, absolves itself of all liability for damage to clothes, a person can claim
compensation because the contract is unfair to the consumers.

2. Plaintiff the wrongdoer.

A person cannot take advantage of his own wrong. This principle has been in use since a long time as it
is just and equitable. For example, a person trespassing one another's property is injured due to darkness. He
cannot claim compensation because he was injured due to an action which was wrong on his part. However, this
defense exists only if the injury happens because of a wrongful act of the plaintiff. It does not exist if the injury
happens because of a wrongful act of the defendant even if the plaintiff was doing a wrongful but unrelated act.
For example, in Bird vs Holbrook 1828, the plaintiff was trespassing on the defendant's property and he was
hurt due to a spring gun. The defendant had put spring guns without any notice and was thus held liable.

3. Inevitable Accident.
Accident means an unexpected occurrence of something that could not have been predicted or
prevented. In such a case, the defendants will not be liable if they had no intention to cause it and if the plaintiff
is injured because of it.
Holmes v Mather (1875) LR 10 Ex 261.
A person was walking by the side of the road when he was knocked by a pair of horses which suddenly
went out of control though the defendant tried his best to control it. It was held that it is an inevitable accident
and the defendant is not liable as he took necessary care of controlling that horse. It is a case of act of man.
Ryan v Young (1933) 1 ALL ER 522.
While driving a motor vehicle the driver suffered from a heart failure and died which caused an
accident. It was held that this accident is a mere inevitable accident and plaintiff is not eligible for
compensation.
However, the defense of Inevitable Accident is not a license to negligence. For example, A has hired B's
car. While driving, one of the tires bursts and causes accident injuring A. Here, if the tires were worn out and
were in bad condition, it would be negligence of B and he would be held liable for A's injuries.

4. Act of God.
An act of God in a legal sense is an extraordinary occurrence of circumstance which could not have been
predicted or prevented and happens because of natural causes. Nobody can predict, prevent, or protect from a
natural disaster such an earthquake or flood. Thus, it is unreasonable to expect a person to be liable for damages
caused by such acts of God. There are two essential conditions for this defense - the event must be due to a
natural cause and it must be extraordinary or something that could not have been anticipated or expected. For
example, heavy rains in the monsoon are expected and if a wall falls and injures someone, it cannot be termed
an act of god because protection for such expected conditions should have been taken. But if a building falls due
to a massive earthquake and injures and kills people, this defense can be used
The essential conditions of this defense are:

1. There must be working of natural forces without any intervention from human agency, and
2. The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded
against.
Nicholas v. Marshland, (1875) 2 KB 297
The defendant constructed three artificial lakes which were fed by a natural stream. The lakes were well
constructed and adequate in all normal circumstances. An extraordinary rainfall burst the banks of artificial
lakes on the defendant’s property and the floodwater destroyed a number of bridges owned by the county
council. It was held that the defendant was not negligent and the accident was due to an act of God

5. Private Defense.
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private defense.
Thus, law permits the use of reasonable and necessary force in preventing harm to human body or property and
injuries caused by the use of such force are not actionable. However, the force must be reasonable and not
excessive.
Bird v Holbrook. (1821) 4 Bing 628.
Defendant set some spring guns on his garden because his flowers were stolen from his garden. The
plaintiff a boy did not knew the existence of spring guns entered the garden in search of his fowl got injured.
The defendant was held liable as he used unreasonable methods to protect his land.

6. Mistake.
Generally, mistake is not a valid defense against an action of tort. Thus, hurting a person under the
mistaken belief that he is trespassing on your property, will not be defensible. However, in certain cases, it
could be a valid defense. For example, in the case of malicious prosecution, it is necessary to prove that the
defendant acted maliciously and without a reasonable cause. If the prosecution was done only by mistake, it is
not actionable.
Further, honest belief in the truth of a statement is a defense against an action for deceit.

7. Necessity.
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over
a small boat hurting 2 people in order to prevent collision with another ship which would have hurt hundreds of
people is excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger striking prisoner to save her
was held to be a good defense to an action for battery.

8. Statutory Authority.
An act that is approved by the legislature or is done upon the direction of the legislature is excused from
tortious liability even though in a normal circumstances, it would have been a tort. When an act is done under
the authority of an Act, it is a complete defense and the injured party has no remedy except that is prescribed by
the statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's woods that
existed in his land adjoining the railway track. It was held that since the company was authorized to run the
railway and since the company had taken proper care in running the railway, it was not liable for the damage.

9. Parental or Quasi Parental Authority.

 Parents and persons in loco parentis have a right to administer punishment on a child for the purpose of
correction, chastisement of training. However one must remember that such an authority warrants the use of
reasonable and moderate punishment only and therefore, if there is an excessive use of force, the defendant may
be liable for assault, battery or false imprisonment, as the case may be.

10. Judicial or Quasi-Judicial Acts.

No action lies for acts done, or words spoken, by a judge in exercise of his judicial office, although they
may be malicious. It is founded on the principle of public benefit that Judges should be at liberty to exercise
their function independently and without fear of consequences.

Sailajanand Pandey v Suresh Chandra Gupta, AIR 1969 Pat. 194

The magistrate acting mala fide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff.
The Patna High Court held that he was not entitled to the protection given by the Judicial Officer’s Protection
Act, 1850 and was, therefore, liable for the wrong of false imprisonment.

III. Conclusion
By taking the above mentioned defenses the defendant can avoid the liability.

VIII. Consumer Protection Act, 1986

11. Question: Discuss the Constitution, Jurisdiction, Power and Function of the District Forum under
Consumer Protection Act, 1986.

Answer:
I. Introduction
The consumer Protection Act, 1986 has been enacted by the legislature to establish the consumer
redressal agency for the speedy disposal of the claim of the consumer. Prior to the Consumer Protection Act,
1986 the dispute of consumer was dealt by the ordinary civil Court which was very time consuming, so in order
to give the instant relief to the consumer this Act has been enacted.

II. Composition of District Forum (Section 10)

A District Forum has to consist of:

a. A person who is or has been or is qualified to be a District Judge, to be nominated by the State Government,
to be its President.
b. Two other persons of eminence, in the field of education, trade, or commerce one of whom shall be woman.

III. Qualification of Members:

i) be not less than thirty-five years of age,
ii) Possess a bachelor's degree from a recognized university,
iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten
years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or
administration:
IV. Disqualifications of members
Provided that a person shall be disqualified for appointment as a member if he—
(a) Has been convicted and sentenced to imprisonment for an offence which, in the opinion of the state
Government involves moral turpitude; or
(b) Is an undischarged insolvent; or
(c) Is of unsound mind and stands so declared by a competent court; or
(d) Has been removed or dismissed from the service of the Government or a body corporate owned or
controlled by the Government; or
(e) has, in the opinion of the state Government, such financial or other interest as is likely to affect prejudicially
the discharge by him of his functions as a member; or
(f) has such other disqualifications as may be prescribed by the State Government;

V. Selection Committee for the Appointment of Members. Section 10 (1A)

(1A) Every appointment under sub-section (I) shall be made by the State Government on the recommendation
of a selection committee consisting of the following, namely:—
(i) The President of the State Commission — Chairman.
(ii) Secretary, Law Department of the State — Member.
(iii) Secretary in charge of the Department dealing with
consumer affairs in the State — Member.

VI. Term of Office Section 10 (2)

Members of the District Forum hold office for a term of 5 years or up to the age of 65 years whichever is earlier
and are not eligible for re-appointment. In other words, the maximum period of membership of the forum is 5
years.

Salary: -The State Government drafts rules regarding salary or honorarium and other allowances payable to
members and also the terms and conditions of their service.

VII. Jurisdiction of the District Forum Section 11

A. Pecuniary Jurisdiction
Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain
complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed
rupees twenty lakhs.

B. Territorial Jurisdiction
A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the
institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or
personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint,
actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain,
provided that in such case either the permission of the District Forum is given, or the opposite parties who do
not reside, or carry on business or have a branch office, or personally work for gain, as the case may be,
acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.

VIII. Admissibility of Complaint Section 12 (2)

On receipt of a complaint made to the District Forum may, by order, allow the complaint to be
proceeded with or rejected:
Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been
given to the complainant:
Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from
the date on which the complaint was received.

IX. Procedure on admission of complaint. Section 13

The District Forum shall, on admission of a complaint, if it relates to any goods,—
refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite
party mentioned in the complaint directing him to give his version of the case within a period of thirty days or
such extended period not exceeding fifteen days as may be granted by the District Forum;

X. Limitation to decide the complaint. Section 13 (3A)

Every complaint shall be heard as expeditiously as possible and endeavor shall be made to decide the
complaint within a period of three months from the date of receipt of notice by opposite party where the
complaint does not require analysis or testing of commodities and within five months if it requires analysis or
testing of commodities:
Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown
and the reasons for grant of adjournment have been recorded in writing by the Forum:

XI. Interim Order. 13 (3B)

Where during the pendency of any proceeding before the District Forum, it appears to it necessary, it
may pass such interim order as is just and proper in the facts and circumstances of the case.

XII. Finding of the District Forum. Section 14

(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods
complained against suffer from any of the defects specified in the complaint or that any of the allegations
contained in the complaint about the services are proved, it shall issue an order to the opposite party directing
him to do one or more of the following things, namely:—
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury
suffered by the consumer due to the negligence of the opposite party.
Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it
deems fit;
(e) to remove the defects in goods or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(ha)to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;
(hb)to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a
large number of consumers who are not identifiable conveniently:
Provided that the minimum amount of sum so payable shall not be less than five per cent. of the value of such
defective goods sold or service provided, as the case may be, to such consumers:
Provided further that the amount so obtained shall be credited in favour of such person and utilized in such
manner as may be prescribed;
(hc)to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the
opposite party responsible for issuing such misleading advertisement;
(i) to provide for adequate costs to parties.

XIII. Appeal Section 15

Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the
State Commission within a period of thirty days from the date of the order, in such form and manner as may be
prescribed:
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it
is satisfied that there was sufficient cause for not finding it within that period.
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the
District Forum, shall be entertained by the State Commission unless the appellant has deposited in the
prescribed manner fifty per cent. of that amount or twenty-five thousand rupees, whichever is less:

XIV. Conclusion

12. Question: Discuss the Constitution, Jurisdiction, Power and Function of the State Commission under
Consumer Protection Act, 1986.

I. Introduction:
See the introduction of question no. 11.

II. Composition of the State Commission. (Section 16)

(1) Each State Com-mission shall consist of—
(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its
President:
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of
the High Court;
(b) not less than two, and not more than such number of members, as may be prescribed, and one of whom
shall be a woman, who shall have the following qualifications, namely:—
III. Qualification of Members:
See question no. 11.

IV. Disqualification of Members:

See question no. 11.

V. Selection Committee for the Appointment of Members of State Commission Sec. 16 (1A)
(i) President of the State Commission -- Chairman;
(ii) Secretary of the Law Department of the State -- Member;
(iii) Secretary incharge of the Department dealing
with Consumer Affairs in the State -- Member:

VI. Term of Office of members of State Commission Sec. 16 (3)

Every member of the State Commission shall hold office for a term of five years or up to the age of
sixty-seven years, whichever is earlier:
Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of
sixty-seven years, whichever is earlier,

Salary: -The State Government drafts rules regarding salary or honorarium and other allowances payable to
members and also the terms and conditions of their service.

VII. Jurisdiction of State Commission

A. Pecuniary Jurisdiction
Subject to the other provisions of this Act, the State Commission shall have jurisdiction to entertain
complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty
lakhs but does not exceed rupees one crore;

B. Appellate Jurisdiction
The State Commission shall have jurisdiction to entertain appeals against the orders of any District
Forum within the State.
s
C. Power to call records
to call for the records and pass appropriate orders in any con-sumer dispute which is pending before or
has been decided by any District Forum within the State, where it appears to the State Commission that such
District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so
vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

D. Territorial Jurisdiction
See question no. 11

E. Transfer of cases. Sec. 17A.

 On the application of the complainant or of its own motion, the State Commission may, at any stage of
the proceeding, transfer any complaint pending before the District Forum to another District Forum within the
State if the interest of justice so requires.

VIII. Admissibility of Complaint Section 12 (2)

See question no. 11.

IX. Procedure on admission of complaint. Section 13

See question no. 11.

X. Limitation to decide the complaint. Section 13 (3A)

See question no.11.

XI. Finding of the State Commission. Section 14

See question no. 11