Law of torts notes

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 Table of Contents
 What is a Tort?
 Introduction
 Definitions by various thinkers
 Objectives of a tort
 Essential Elements of a tort
o What is a Wrongful Act?
o What is a duty imposed by law?
o What is a Legal damage?
o Within the scope of the subject matter
o Distinction between Injuria sine damno and Damnum sine injuria
 Tort and other wrongs
o Tort and Crime – Distinguished
o Torts and Breach of Contract – Distinguished
o Torts and Breach of trust – Distinguished
 Liquidated damages vs Unliquidated damages
 Tortious liability and mental element
o Intentional Tort
o Unintentional Tort
 Relevance of Intention and Motive
 Situation of law of Torts in India
 Conclusion
 General defences under law of torts
 Introduction
 Meaning of General Defences
o Volenti non fit injuria
 Consent must be free
 Consent obtained by fraud
 Consent obtained under compulsion
 Mere knowledge does not imply assent
 Negligence of the defendant
 Limitations on the doctrine‘s scope
 Rescue cases
 Unfair Contract Terms Act, 1977 (England)
 Negligence Liability
 Volenti non fit injuria and Contributory negligence
o Plaintiff the wrongdoer
o Inevitable accident
o Act of God
 Working of natural forces
 Occurrence must be extraordinary
o Private defence
o Mistake
o Necessity
o Statutory authority
 Absolute and conditional authority
 Conclusion
 References

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 Discharge of Torts in India
 Meaning of Tort
 Discharge of Tort
o Death of the parties
o By Waiver
o Accord and Satisfaction
o Release
o Judgement
o Acquiescence
o Law of limitation
 Conclusion
 What are the Remedies Available in the Law of Torts?
 Introduction
 Judicial Remedies
 Extra-judicial Remedies
 Damages
o Types of damages
o General and Special Damages
o Damages for nervous or mental shock
o Nervous shock
o Mental shock
o Cases
o Measurement of Damages
o Remoteness of ‗Damage‘
o Purpose of Damages in Torts
 Injunction
o Temporary Injunction
o Cases in which temporary injunction is granted
o Permanent Injunction
o Cases in which permanent injunction is granted
o Mandatory Injunction
o Prohibitory Injunction
o When can injunctions not be granted
o Limitation period
 Specific Restitution of Property
o Extra-Judicial Remedies
o Expulsion of trespasser
o Re-entry on land
o Re-caption of goods
o Abatement
o Distress Damage Feasant
 Conclusion
 Joint Tortfeasors and Laws in India
 Introduction
 Liability of Independent Tortfeasor
 Liability of Several Concurrent Tortfeasors
 Liability of Joint Tortfeasors
 Laws in India
 When does the liability of joint tortfeasors arise?
 Tortfeasors Defenses

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 Remedies
 Criticism of Joint Tortfeasors
 Conclusion
 Endnotes
 What is Defamation?
 Introduction
 Essentials of Defamation
o
 Forms of Defamation
 English law on libel and slander
 Indian law on Libel and Slander
 Innuendo
 Defamation of class of persons
 Communication between husband and wife
 Defenses to defamation
 Conclusion
 Application of Tort law in Domestic Disputes
 Husband and Wife
o i) Husband‘s Liability for Wife‘s Torts
 Drinkwater v. Kimber, (1952) 2 Q.B. 281
o ii) Action between Spouses
o Curtis v. Wilcox [1948] 2 K.B. 474 (C.A.)
 Broom v. Morgan (1953) 1 Q.B. 597
 Parental and Quasi-parental Authority
o
 Cleary v. Booth, (1893) 1 Q.B. 465

Table of Contents (Part-2)

 Specific Restitution of Property for Tort Claims

 Meaning of the term Restitution
 Law of Restitution
 Restitution according to American Jurisprudence
 Specific Restitution of Property
 Restitutionary Remedies
 Forms of action in English Law
 Types of Disgorgement Legal Remedies
 Restitution for Wrongs
o Example
 Difference Between Restitution and Civil Damages
 Difference Between Restitution and Compensation
 Courts may order full or partial restitution
 Collecting Restitution
 The Tort of Nuisance
 Introduction
 Definitions by Various thinkers
 Essential elements of Nuisance
o Wrongful act
o Damage or loss or annoyance caused to another individual.
 Kinds of Nuisance

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o 1. Public Nuisance
o 2. Private Nuisance
 Elements which constitute a private nuisance
o 1. Property
o 2. Physical discomfort
 What are the defenses available to Nuisance?
o 1. Prescription
o 2. Statutory authority
 What are the remedies for nuisance?
 1. Injunction
o 2. Damages
 3. Abatement
 Nuisance and Trespass – Distinguished
 Conclusion
 Trespass to Land and Dispossession
o Meaning of Trespass
 Kinds of Trespass
 Trespass to Land
 How is Trespass to Land committed?
 Difference Between Trespass and Nuisance
 Aerial Trespass
 Indian Law of Aerial Trespass
 Continuing Trespass
 Trespass by Animals
 Criminal Trespass
 Remedies
o Damages
o Injunction
 Possession
 Defenses
 Dispossession
o Prerequisite
o Remedy
o Defenses
 Distress Damage Feasant – Animal Rights and Tort Law
 Introduction
 Cattle Trespass
o Scienter Rule
o Animal Act, 1971
o Cattle Trespass Act, 1871
 Defenses
 Distress Damage Feasant
 Endnotes
 Joint Tort-Feasors and the Laws in India
 Introduction
 Liability of Independent Tortfeasor
 Liability of Several Concurrent Tortfeasors
 Liability of Joint Tortfeasors
 Laws in India
 When does the liability of joint tortfeasors arise?

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 Tortfeasors Defenses
 Remedies
 Criticism of Joint Tortfeasors
 Conclusion
 Endnotes
 Assault as a Tort and Remedies
 What is a Tort?
 Examples of Torts
 Assault
 Elements of Assault
o Difference between Assault and Battery
o Difference between Criminal and Civil Assault
o Legal defenses on charges of Assault
 Cases
 Remedies
 Conclusion
 Torts Relating to Marital Rights
 Introduction
 What are the Torts relating to Marital Rights?
 What are the kinds of Torts relating to Marital Rights?
o Abduction
o Adultery
o Causing Physical injuries to the Wife
 Pre-requisites of Torts relating to Marital Rights
o Are these rights available to the cohabitants who reside together without having a valid
marriage?
o Liability of Tortfeasor in transfer of Venereal Disease
 English Legal System on Torts relating to Marital Rights
 Torts relating to Marital Rights in India
 Why Torts relating to Marital Rights are important?
 Are there any Marital Rights which are covered both under Civil and Criminal law?
o Difference between rights given under Civil law and Criminal law
o Preference to civil or criminal right?
 Conclusion
 References
 Torts Relating to Abuse of Legal Process
o Introduction
o Essential Elements of Malicious Prosecution
 Prosecution by the defendant
 Absence of reasonable and probable cause
 Defendant acted maliciously
 Termination of proceedings in the favour of the plaintiff
 Plaintiff suffered damage as a result of the prosecution
o Malicious civil proceedings
o Conclusion
o References
 Fraud or Deceit in Torts
 What is the Tort of Deceit?
 What is the meaning of Deceit and Fraud?
 What is Fraudulent Misrepresentation?

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 What are the elements of Fraudulent Misrepresentation?
 What is meant by Fraudulent Concealment?
o Non-Disclosure of Known facts
o Proof of Intent not to perform
 What is Negligent Misrepresentation?
 The essential elements by a negligent misrepresentation for a claim of fraud are:
 Difference between Criminal and Civil fraud
 What are the Remedies given?
 What is the Effect of Silence?
 What are the Damages given for Deceit?
 What is it‘s Relationship with Negligence?
 References
 Slander of Title and Goods
 Slander
o What is Slander essentially?
 What qualifies as Slander?
 How can one judge if the statement is a Slander or not?
 Slander of Title
o What is Slander of Title?
o What must you prove in order to claim Slander of Title?
o What are the Remedies available in a Slander of Title Case?
 What are the defenses to Slander of Title?
 Privilege
 Statutory Authority
 How is Disparagement different from Defamation?
 Slander of Goods
 What has to be proved to file a suit for Slander of Goods?
o How is Slander of Goods protected under Law?
o Can boasting of one‘s own goods result in Slander of others‘ goods?
o Boasting with figures showing poor results of competitor
o Does False Advertising of one‘s own good result in Slander of others‘ Goods?
 Conclusion
 The Tort of Passing Off
 Meaning of passing off
 Law of Passing off in India
 Passing Off and Trademark Law
 Essentials of Passing Off
 Modern Elements of Passing off
 Goodwill
 Deceptive Similarity
 Loss Due to Passing off
 Importance of Passing off
 Difference between Passing off and Infringement
 Remedies for Passing Off
o 1. Injunction
o 2. Damages or Compensation
o 3. Account of profits
 References
 Procuring a Breach of Contract
 Introduction

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 What is a Breach of Contract?
o Anticipatory breach of Contract
 Is Anticipatory breach of Contract protected under Law?
 What are the effects of Anticipatory breach of Contract?
o Actual breach of Contract
o Actual Breach of Contract under Law
 When is an Actual breach of contract committed?
 What is Tortious Interference?
o Who is a Tortfeasor?
 What does Inducement in Law mean?
 Inducement as a Tort
 The contract between Mr. Rick and Mr. Morty
 Knowledge
 Is malice a necessary element?
 Damage
 What is Fraudulent Inducement?
o How to prove Fraudulent Inducement?
o Does Misrepresentation amount to Inducement?
o What are the defenses to this tort?
o What are the remedies to this tort?
 Conclusion
 The Tort of Nuisance – Public and Private
 Introduction
 Definitions by various Thinkers
 Essential elements of Nuisance
o Wrongful act
o Damage or loss or annoyance caused to another individual
 Kinds of Nuisance
o 1. Public Nuisance
o 2. Private Nuisance
 Elements which constitute a private nuisance
o 1. Property
o 2. Physical discomfort
 What are the defenses available to Nuisance?
o 1. Prescription
o 2. Statutory authority
 What are the remedies for nuisance?
o 1. Injunction
o 2. Damages
o 3. Abatement
 Nuisance and Trespass – Distinguished
 Conclusion
 The Concept of Absolute Liability
 Introduction to Absolute Liability
 Essential Elements of Absolute Liability
 Scope of Rule of Absolute Liability
 Is Strict Liability and Absolute Liability the Same Thing?
 Evolution of absolute liability
o References
 Constitutional Tort

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 Introduction
 Evolution in India
 Article 300
 Landmark judgments on Constitutional Tort
 Growth of remedy under Constitutional Tort
o 1. Doctrine to Entertain Appropriate Cases
o 2. Constitutional Tort and the end to Sovereign Immunity
o 3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)
o 4. Defence of Sovereign immunity in Civil Law Proceedings
o 5. Supreme Court‘s approach on Constitutional Tort Issues
 Conclusion
 Tort Law and Environment
 Introduction
 Background
 Role of Torts in the protection of the environment
 Role of Indian judiciary in extending tortious liability in cases of environmental harm
 Why is there a lack of environmental-tort litigation in India?
 Conclusion
 References
 Bhopal Gas Tragedy and Development of Environmental Law
 Background of the Case
 Principle of Strict Liability
 Conclusion
 References
 Medical Negligence
 Introduction
 What is Medical Negligence?
 What are the essentials or ingredients that constitute the Act of Medical Negligence?
 What are the duties of a medical practitioner towards a patient?
o Acts of Misconduct
 What are the rights of the patients?
 What are the consequences of Medical Negligence?
o Civil or monetary liability
 Liability under the Consumer Protection Act
 The complaints under the Consumer Protection Act can be filed at
 Liability under the Law of Torts
 The principle of Res Ipsa Loquitur
o Criminal liability
 Sections that are often applied to deal with the cases of medical negligence under criminal
liability are –
o Disciplinary action
 What are the defenses available for a doctor under the Indian Penal Code?
 What are the laws that affect the medical profession?
 What are the exemptions for Medical Negligence?
 Conclusion
 References
 Death in Relation to Tort
 Introduction
 What is the effect of death on the subsisting cause of Action?
o Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital

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o Exception to the maxim ―Actio personalis moritur cum persona‖
o The Action by or Against the Estate of the Deceased
o The Law Reform (Miscellaneous Provisions) Act, 1934
o Case law
 Hicks v. Chief Constable of South Yorkshire
o The Administration of Justice Act, 1982
o Shortening of the expectation of life
o Flint v. Lovell
 Damages in Case of Shortening of Expectation of Life
 How far is causing death actionable in Tort?
o Position in England
 Rule in Baker v. Bolton
 Exception to the rule in Baker v. Bolton
 Jackson v. Watson
 Dependent‘s Action
 Dependency Claims
 The Dependent must have suffered a loss of dependency
 The action must not be barred or excluded
 Contributory Negligence
 Damages
 Bereavement
o Position In India
 Fatal Accidents Act, 1855
 Payable compensation under a statute
 Conclusion

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What is a Tort?
Introduction
The word tort originates from the French language. It is equivalent to the English word ―wrong‖ and
Romanian law‘s term ―delict‖. It is derived from the Medieval Latin word ―tortum‖ which means
―wrong‖ or ―injury‖ which itself was further developed from the Old Latin word ―torquere‖ which
means ―to twist‖. It is a breach of duty which amounts to a civil wrong. A tort arises when a person‘s
duty towards others is affected, an individual who commits a tort is called a tortfeasor, or a
wrongdoer. And where there are multiple individuals involved, then they are called joint
tortfeasors. Their wrongdoing is called as a tortious act and they can be sued jointly or
individually. The main aim of the Law of Torts is the compensation of victims.
Section 2(m) of the Limitation Act,1963, Addresses tort as being a civil wrong which is not just
exclusively a breach of contract or a breach of trust.

Definitions by various thinkers

According to John Salmond, He addresses tort as being only a civil wrong which has unliquidated
damages (those damages for which there is no fixed amount) in the form of remedy and which is not
just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial
obligation.
According to Richard Dien Winfield, Tortious liability emerges from the breach of a duty primarily
fixed by the law, this duty is towards the other people generally and its breach is redressible by an
action for unliquidated damages.
According to Fraser, A tort is an infringement of a right in rent of a private individual giving a right
of compensation at the suit of the injured party.

Objectives of a tort
1. To determine rights between the parties to a dispute.
2. To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
3. To protect certain rights of every individual recognized by law i.e. a person‘s reputation.
4. To restore one‘s property to its rightful owner i.e. where the property is wrongfully taken
away from its rightful owner.

Essential Elements of a tort

Three essential elements which constitute a tort are,
1. A Wrongful act or omission, and
2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and
It should be of such a nature that it should give rise to a legal remedy in the form of an action for
damages.

What is a Wrongful Act?

A wrongful act can be either morally wrong or legally wrong and can also be both at the same time.
A legal wrongful act is one which affects one‘s legal right, the wrongful act must be one recognized
by law, the act must be in violation of the law to be a legal wrongful act. An act which seems Prima
facie (based on the first impression) innocent may also end up infringing somebody else‘s legal right,
innuendo (Where a statement is said by an individual which may be Prima facie innocent but may
also have a secondary meaning which can harm the reputation of another in the eyes of the public or
the person who comes to know of such information) is an example of this. Liability for a tort arises
when the wrongful act being complained of amounts to an infringement of a legal private right or a
breach or violation of a legal duty. i.e. If a person is prevented from voting by another, even if the
candidate he was going to vote for, wins, his legal right to vote has been violated.

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For example, if someone whose religion does not allow him/her to eat non-vegetarian food, still eats
it then he/she will be morally wrong but not legally wrong. And if a person whose religion doesn‘t
allow him or her to eat non-vegetarian and he or she strictly follows that religion is forcefully fed by
someone then it is a legal wrong on the part of the person forcing the other one to eat that food which
he or she does not want to eat.

What is a duty imposed by law?

A duty of care is one which is imposed on every individual and requires a standard of reasonable
care that he could see as being harmful towards others. Hence, a duty imposed by law is a duty
which is legally enforceable in the Indian courts.

What is a Legal damage?

Literal meaning of damage- to affect injuriously.
The term ―damages‖ is often confused with the term ―damage‖, while they may look similar, they
have different meanings and are significantly distinct from each other, ―damages‖ refers to the
compensation sought for, while ―damage‖ refers to actual loss or injury.
Within the scope of the subject matter
The second important ingredient in constituting a tort is legal damage. In order to prove an action for
tort in the court, the plaintiff has to prove that there was a wrongful act or an act or omission which
resulted in the breach of a legal duty or the violation of a legal right. So, there must be a violation of
a legal right of a person and if there is no violation of a legal right then there can be no action under
the law of torts. If there has been a violation of a legal right, the same is actionable whether the
plaintiff has suffered any loss or not. This is expressed by the maxim, ―Injuria sine
damno‖ where ‗Injuria‘ refers to ―infringement of the legal right of a person‖ and the term
‗damnum‘ means ―substantial harm, loss or damage to that individual‖. The term ‗sine‘ means
―without‖. However, if there is no violation of a legal right, no action can lie in a court despite of the
loss, harm or damage to the plaintiff caused by the defendant.
Illustration :- A runs a successful school, after 5 months another school opens up nearby due to
which he suffered heavy losses in the business, here he has suffered no legal damage but has only
suffered damage in terms of business value so he cannot sue the competitor school for any kind of
damages (similar to the case of Gloucester Grammar School Case(1410) Y B 11 Hen IV 27).

The factual significance of legal damage is illustrated by two maxims namely:

 Injuria sine damno, and
 Damnum sine injuria.

Injuria sine damno means injury without damage. Such damage is actionable under the law of torts.
It occurs when a person suffers a legal damage instead of actual loss, i.e. his legal right is infringed
by some other individual. In other words, this is an infringement of an absolute private right of a
person without having suffered any actual loss.
An example of this can be the landmark case of, Ashby v. White(1703) 92 ER 126, where Mr.
Ashby, the plaintiff, was prevented from voting by the constable Mr. White. This rule is basically
based on the old maxim ―Ubi jus ibi remedium‖ which translates to ―where there is a right, there will
be a remedy.‖
Another example in the Indian context would be the case of,
Bhim Singh v. State of J and K, where the plaintiff was a Member of the parliament and was not
allowed to enter into the premises of the Assembly election by a police constable, hence his legal
right was infringed.

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Damnum sine injuria whereas translates to damage without injury, here the party affected suffers
damage which may also be physical but suffers no infringement of their legal rights. In other words,
it means the occurrence of an actual and substantial loss to a party without any infringement of a
legal right. Here no action lies in the hands of the plaintiff as there is no violation of a legal right.

Distinction between Injuria sine damno and Damnum sine injuria

(1) On one hand, i.e. in the case of Injuria sine damno there is no physical damage or an actual loss
on the part of the plaintiff while on the other hand in case of damnum sine injuria there is actual
damage and loss on the part of the plaintiff.
(2) Secondly, in the case of Injuria sine damno, the party suffers with the infringement of their legal
rights, while in the case of Damnum sine injuria, there is no legal right infringement.
(3) Thirdly, Injuria sine damno is actionable in the court while Damnum sine injuria is not
actionable in court.
(4) Fourthly, the Injuria sine damno deal with the legal wrongs while Damnum sine injuria deal
with the moral wrongs.

Tort and other wrongs

Tort and Crime – Distinguished

(1) A tort is basically a private wrong, i.e. it is the infringement of a person‘s right in rem, in other
words, it is an infringement of a personal right. While a crime is a public wrong, i.e. is against
the whole world and the state, it is an infringement of rights in personam, in other words, it is an
infringement of the public right.
(2) The remedy in the case of law of torts is in the form of damages, while in the case of a crime, it is
in terms of punishment.
(3) In the case of a tort, a suit is filed whereas, in the case of a crime, a complaint is filed.
(4) Law of torts is an uncodified law whereas law of crimes is a codified law.
(5) In tort, intention is important but not in all cases, whereas in the case of criminal law intention is
the crux of the offence itself.
Example: A good example of this can be Assault, where the party who has been assaulted can bring
charges against the person who has assaulted him or her. Also he or she can claim for damage in the
civil courts under Tort law.

Torts and Breach of Contract – Distinguished

(1) In the case of a tort the duty is fixed by the law, whereas in the case of contract the duty is fixed
by the parties involved.
(2) In case of a tort, the duty is towards everyone in the society, whereas in the case of a contract,
the duty is towards specific individuals only.
(3) Motive is often taken into account in the case of a tort, while, in the case of a contract, motive is
irrelevant.
(4) Damages in the case of a tort are different under different circumstances, whereas, in the case of
a contract, the damages are in the form of compensation for the loss suffered in peculiar form.
(5) In the case of a tort, intention is taken into consideration in some cases, whereas, in the case of a
breach of contract, intention is irrelevant.
Example : A father who employs a surgeon for the treatment of his minor son, and if his son is
injured by the surgeon‘s carelessness. Here the father can sue the surgeon for the breach of contract
also, as there is no contract between the minor son and the surgeon, the minor son can sue the
surgeon(for the careless act which amounts to negligence) in tort and can also put charges on the
surgeon but he cannot sue for the breach of contract.

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Torts and Breach of trust – Distinguished
(1) In the case of a tort, the compensation is in the form of unliquidated damages, whereas, in the
case of breach of trust, the compensation is in the form of liquidated damages.
(2) Law of torts has originated as a part of common law whereas, breach of trust could be redressed
in the Court of Chancery.
(3) Law of trust is regarded as a division of the law of property, whereas, law of tort is not regarded
as a division of the law of property.

Liquidated damages vs unliquidated damages

Both of these damages solidifies the plaintiffs right to be compensated. Liquidated damages, on one
hand, have their amount of compensation fixed while on the other hand, unliquidated damages have
no prior fixed amount, and they change with the intensity of the offence committed by the defendant.
The extent of the amount to be compensated in the case of liquidated damages is predetermined
whereas in the case of unliquidated damages in order to get the maximum compensation the plaintiff
has to prove the extent of the damage he has suffered from.

Tortious liability and mental element

A tortious liability arises when an individual or a person causes any injury to another person‘s
property, reputation, his life, etc. It is civil in nature and the intention due to which such an injury
was caused may or may not be necessary, i.e., it doesn‘t matter if it was caused intentionally or by
accident in most of the cases in the law of torts. The important thing is to figure out the mental
element in order to determine the tortious liability of an individual, and on the basis of intention, tort
can be either Intentional tort or unintentional tort.
 Intentional Tort
Intentional tort is one in which the tort is committed with full knowledge of the outcome of the act
along with the mental intention to cause such a tort. Having mala fide intention is necessary to
commit an Intentional Tort.

Intentional torts are –

 Battery.
 Assault.
 False imprisonment.
 Trespass to land, etc.
 Unintentional Tort
Unintentional torts are caused usually by accident or by mistake by the defendant to the plaintiff
without any mala fide (Evil or Wrongful) intention towards doing such an act. These are usually
committed on the breach of duty of care which a reasonable human being would‘ve considered under
normal circumstances. Negligence (failure to take proper care over something) is a great example of
this kind of tort.
The most common example of Negligence as a civil wrong can be the negligence tort cases of slip
and fall which can occur when the owner of a premises fails to take reasonable care to the floor of
his property thus leaving water on the floor carelessly which in turn results in harming the
individuals whoever enters his premises. Here, the owner of the premises did not intent to harm the
visitors at all but due to his carelessness, such an outcome came to be.

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Relevance of Intention and Motive
Generally, the motive is the state of mind with intent or a purpose in the mind of an individual while
being in the commission of an act. While on one hand, the motive is the ultimate object for which an
act is done, the intention refers to the immediate purpose of the act. Now the question arises whether
these mental elements play a significant role in the determination of tortious liability or not? In
criminal law the concept of mental element plays a significant role in determining the role of a
person‘s liability but in case of law of tort, mental element does not usually play a significant role,
as there are some torts that can be committed without having the intention to do them and the person
who still ends up committing these offences still end up being responsible for them, such as in the
case of negligence, while on the other hand mental element is necessary in order to prove a person‘s
liability in the case of Battery, Assault, etc.
Situation of law of Torts in India
 In India, the concept of law of Torts has been there since even before it gained its
independence from the Britishers. The Sanskrit word ―Jimha‖ was used in Hindu law in the
sense of ―tortuous of fraudulent conduct‖, the word literally meant ―crooked‖. Hindu and
Muslim laws had compensation assured for certain tortious acts. But even today, in the
Modern India, the law of torts is mainly the English law which owes its origin to the
principles of the common law of England.
 Although in the Indian courts, before any English law is applied, it is first overlooked whether
if it will be applicable in Indian society‘s point of view or not. Hence the law of torts is still
uncodified ( those that originated from sources such as court decisions or customs) in India
and is still based on the common law of England.
 The law of torts is underdeveloped in India as most of the people are not at all aware of these
due to high amount of unawareness about its existence in our nation, another thing is the fact
that not everyone can afford a lawyer and the process of court-work which takes a lot of time
as well as a lot of money.
 Still the law of torts play a significant role in the Indian courts as there are many frequent
cases of Defamation, Negligence, etc.
Conclusion
It can very well be established from above that, a tort is a civil wrong which is caused when one
individual infringes another‘s legal rights. And the concept of mental element may or may not be
relevant in certain tort as in order to determine it, we would first have to know the nature of the tort
committed by the individual. It can be done intentionally like in the case of Battery, as well as
accidentally without the intention of committing such an act by performing certain acts carelessly or
by accident like in the case of negligence. The situation of Law of tort is not so well as many people
are still not aware of the rights that they possess which is due to the fact that there is a lack of
awareness among the people, the fact that the law of torts is still uncodified and is a direct derivative
of the common law of England makes it less likely to be adaptable in certain cases to the Indian
context, although now it has been adapted into the Indian context.

General defenses under law of torts

Introduction
Whenever a case is brought against the defendant for the commission of a tort and all the essential
elements of that wrong are present, the defendant would be held liable for the same. Even in such
cases, the defendant can avoid his liability by taking the plea of the defenses available under the law
of torts.
Some defenses are particularly relating to some offences. In the case of defamation, the defenses
available are fair comment, privileges and justification, etc.
Let‘s see what are these defenses available to a person under the law of tort and how can it be
pleaded along with some of the important cases.

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Meaning of General Defenses
When a plaintiff brings an action against the defendant for a tort committed by him, he will be held
liable for it, if there exist all the essential ingredients which are required for that wrong. But there are
some defenses available to him using which he can absolve himself from the liability arising out of
the wrong committed. These are known as ‗General defenses‘ in the law of tort.

The defenses available are given as follows:

 Volenti non fit injuria or the defense of ‗Consent‘
 The wrongdoer is the plaintiff
 Inevitable accident
 Act of god
 Private defense
 Mistake
 Necessity
 Statutory authority

Volenti non fit injuria

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and
he is not allowed to complain about the same. The reason behind this defense is that no one can
enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be express
or implied.
Some examples of the defense are:
 When you yourself call somebody to your house you cannot sue your guests for trespass;
 If you have agreed to a surgical operation then you cannot sue the surgeon for it; and
 If you agree to the publication of something you were aware of, then you cannot sue him for
defamation.
 A player in the games is deemed to be ready to suffer any harm in the course of the game.
 A spectator in the game of cricket will not be allowed to claim compensation for any damages
suffered.
For the defense to be available the act should not go beyond the limit of what has been consented.
In Hallv. Brooklands Auto Racing Club[1], the plaintiff was a spectator of a car racing event and the
track on which the race was going on belonged to the defendant. During the race, two cars collided
and out of which one was thrown among the people who were watching the race. The plaintiff was
injured. The court held that the plaintiff knowingly undertook the risk of watching the race. It is a
type of injury which could be foreseen by anyone watching the event. The defendant was not liable
in this case.
In Padmavati v. Dugganaika[2], the driver of the jeep took the jeep to fill petrol in it. Two strangers
took a lift in the jeep. The jeep got toppled due to some problem in the right wheel. The two
strangers who took lift were thrown out of the jeep and they suffered some injuries leading to the
death of one person.
The conclusions which came out of this case are:
 The master of the driver could not be made liable as it was a case of a sheer accident and the
strangers had voluntarily got into the vehicle.
 The principle of Volenti non fit injuria was applicable here.
In Wooldrige v. Sumner[3], a plaintiff was taking some pictures standing at the boundary of the
arena. The defendant‘s horse galloped at the plaintiff due to which he got frightened and fell into the
horse‘s course and was seriously injured. The defendants were not liable in this case since they had
taken due care and precautions.

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In the case of Thomas v. Quartermaine[4], the plaintiff was an employee in the defendant‘s brewery.
He was trying to remove a lid from a boiling tank of water. The lid was struck so the plaintiff had to
apply an extra pull for removing that lid. The force generated through the extra pull threw him in
another container which contained scalding liquid and he suffered some serious injuries due to the
incident. The defendant was not liable as the danger was visible to him and the plaintiff voluntarily
did something which caused him injuries.
In Illot v. Wilkes[5], a trespasser got injured due to spring guns present on the defendant‘s land. He
knowingly undertook the risk and then suffered injuries for the same. This was not actionable and the
defendant was not liable in the case.
Similarly, if you have a fierce dog at your home or you have broken pieces of glass at the
boundaries, all this is not actionable and is not covered under this defense.
Consent must be free
 For this defense to be available it is important to show that the consent of the plaintiff was
freely given.
 If the consent was obtained under any compulsion or by fraud, then it is not a good defense.
 The consent must be given for an act done by the defendant.
 For example, if you invite someone to your house for dinner and he enters your bedroom
without permission then he will be liable for trespass.
In the case of Lakshmi Rajan v. Malar Hospital[6], a 40 year old married woman noticed a lump in
her breast but this pain does not affect her uterus. After the operation, she saw that her uterus has
been removed without any justification. The hospital authorities were liable for this act. The patient‘s
consent was taken for the operation not for removing the uterus.
 If a person is not in a condition to give consent then his/her guardian‘s consent is sufficient.

Consent obtained by fraud

 Consent obtained by fraud is not real consent and does not serve as a good defense.
In Hegarty v. Shine[7], it was held that mere concealment of facts is not considered to be a fraud so
as to vitiate consent. Here, the plaintiff‘s paramour had infected her with some venereal disease and
she brought an action for assault against him. The action failed on the grounds that mere disclosure
of facts does not amount to fraud based on the principle ex turpi causa non oritur actio i.e. no
action arises from an immoral cause.
 In some of the criminal cases, mere submission does not imply consent if the same has been
taken by fraud which induced mistake in the victim‘s mind so as to the real nature of the act.
 If the mistake induced by fraud does not make any false impression regarding the real nature
of the act then it cannot be considered as an element vitiating consent.
In R. v. Wiliams[8], a music teacher was held guilty of raping a 16 years old girl under the pretence
that the same was done to improve her throat and enhancing her voice. Here, the girl misunderstood
the very nature of the act done with her and she consented to the act considering it a surgical
operation to improve her voice.
In R. v. Clarence[9], the husband was not liable for an offence when intercourse with her wife
infected her with a venereal disease. The husband, in this case, failed to inform her wife about the
same. Here, the wife was fully aware of the nature of that particular act and it is just the
consequences she was unaware of.

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Consent obtained under compulsion
 There is no consent when someone consents to an act without free will or under some
compulsion.
 It is also applicable in the cases where the person giving consent does not have full freedom to
decide.
 This situation generally arises in a master-servant relationship where the servant is compelled
to do everything that his master asks him to do.
 Thus, there is no applicability of this maxim volenti non fit injuria, when a servant is
compelled to do some work without his own will.
 But, if he himself does something without any compulsion then he can be met with this
defense of consent.

Mere knowledge does not imply assent

For the applicability of this maxim, the following essentials need to be present:
 The plaintiff knew about the presence of risk.
 He had knowledge about the same and knowingly agreed to suffer harm.
In the case of Bowater v. Rowley Regis Corporation[10], a cart-driver was asked to drive a horse
which to the knowledge of both was liable to bolt. The driver was not ready to take that horse out but
he did it just because his master asked to do so. The horse, then bolted and the plaintiff suffered
injuries. Here, the plaintiff was entitled to recover.
In Smith v. Baker[11], the plaintiff was an employer to work on a drill for the purpose of cutting
rocks. Some stones were being conveyed from one side to another using crane surpassing his head.
He was busy at work and suddenly a stone fell on his head causing injuries. The defendants were
negligent as they did not inform him. The court held that mere knowledge of risk does not mean that
he has consented to risk, so, the defendants were liable for this. The maxim volenti non fit injuria
did not apply.
But, if a workman ignores the instructions of his employer thereby suffering injury, in such cases this
maxim applies.
In Dann v. Hamilton[12], a lady even after knowing that the driver was drunk chose to travel in the
car instead of any other vehicle. Due to the negligent driving of the driver, an accident happened
which resulted in the death of the driver and injuries to the passenger herself. The lady passenger
brought an action for the injuries against the representatives of the driver who pleaded the defense of
volenti non fit injuria but the claim was rejected and the lady passenger was entitled to get
compensation. This maxim was not considered in this case because the driver‘s intoxication level
was not that high to make it obvious that taking a lift could be considered as consenting to an
obvious danger.
This decision was criticized on various grounds as the court did not consider contributory negligence
while deciding the case but the court‘s reason for not doing so is that it was not pleaded that is why it
was not considered.
A driver‘s past negligent activities do not deprive him of this remedy if someone travels with the
same driver again.

Negligence of the defendant

In order to avail this defense it is necessary that the defendant should not be negligent. If the plaintiff
consents to some risk then it is presumed that the defendant will not be liable.
For example, when someone consents to a surgical operation and the same becomes unsuccessful
then the plaintiff has no right to file a suit but if the same becomes unsuccessful due to the surgeon‘s
negligence then in such cases he will be entitled to claim compensation.

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In Slater v. Clay Cross Co. Ltd.[13], the plaintiff suffered injuries due to the negligent behaviour of
the defendant‘s servant while she was walking along a tunnel which was owned by the defendants.
The company knew that the tunnel is used by the public and had instructed its drivers to give horns
and drive slowly whenever they enter a tunnel. But the driver failed to do so. It was held that the
defendants are liable for the accident.
Limitations on the doctrine‘s scope
The scope of the maxim volenti non fit injuria has been curtailed in the following cases:

o Rescue cases
 The Unfair Contract Terms Act, 1977
In these cases, even if the plaintiff has done something voluntarily but he cannot be met with the
defence of ‗consent‘ i.e. volenti non fit injuria.
Rescue cases
 When the plaintiff voluntarily comes to rescue someone from a danger created by the
defendant then in such cases the defense of volenti non fit injuria will not be available to the
defendant.
In Haynes v. Harwood[14], the defendants‘ servant left two unattended horses in a public street. A
boy threw a stone on the horses due to which they bolted and created danger for a woman and other
people on the road. So, a constable came forward to protect them and suffered injuries while doing
so. This being a rescue case so the defense of volenti non fit injuria was not available and the
defendants were held liable.
However, if a person voluntarily attempts to stop a horse which creates no danger then he will not
get any remedy.
In the case of Wagner v. International Railway[15], a railway passenger was thrown out of a moving
train due to the negligence of the defendants. One of his friends got down, after the train stopped, to
look for his friend but then he missed the footing as there was complete darkness and fell down from
a bridge and suffered from some severe injuries. The railway company was liable as it was a rescue
case.
In Baker v. T.E. Hopkins & Son[16], due to the employer‘s negligence, a well of a petrol pump was
filled with poisonous fumes. Dr. Baker was called to help but he was restricted from entering the
well as it was risky. He still went inside to save two workmen who were already stuck in the well.
The doctor himself was overcome by the fumes and then he was taken to the hospital where he was
declared dead. When a suit was filed against the defendants, they pleaded the defense of consent.
The court held that in this case the defense cannot be pleaded and the defendants, thus, were held
liable.
 If A creates danger for B and he knows that a person C is likely to come to rescue B. then, A
will be liable to both B and C. Each one of them can bring an action for the same,
independently.
 If someone knowingly creates danger for himself and he knows that he will likely be rescued
by someone, then he is liable to the rescuer.
In Hyett v. Great Western Railway Co.[17], the plaintiff got injured while saving the defendant‘s
cars from a fire which occurred due to negligence on the part of the defendants. The plaintiff‘s acts
seemed to be reasonable and the defendant was held liable in this case.
Unfair Contract Terms Act, 1977 (England)
The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his liability resulting
from his negligence in a contract.

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Negligence Liability
 Sub-section 1 puts an absolute ban on a person‘s right to exclude his liability for death or
personal injury resulting from the negligence by making a contract or giving a notice.
 Sub-section 2 is for the cases in which the damage caused to the plaintiff is other than
personal injury or death. In such cases, the liability can only be avoided if a contract term or
notice satisfies the reasonability criteria.
 Sub-section 3 says that a mere notice or agreement may be enough for proving that the
defendant was not liable but in addition to that some proofs regarding the genuineness of the
voluntary assumption and plaintiff‘s consent should also be given.
Volenti non fit injuria and Contributory negligence
 Volenti non fit injuria is a complete defense but the defense of contributory negligence came
after the passing of the Law Reform (Contributory Negligence) Act, 1945. In contributory
negligence, the defendant‘s liability is based on the proportion of fault in the matter.
 In the defense of contributory negligence, both are liable – the defendant and the plaintiff,
which is not the case with volenti non fit injuria.
 In volenti non fit injuria, the plaintiff knows the nature and extent of danger which he
encounters and in case of contributory negligence on the part of the plaintiff, he did not know
about any danger.

Plaintiff the wrongdoer

There is a maxim ―Ex turpi causa non oritur actio‖ which says that ―from an immoral cause, no
action arises‖.
If the basis of the action by the plaintiff is an unlawful contract then he will not succeed in his
actions and he cannot recover damages.
If a defendant asserts that the claimant himself is the wrongdoer and is not entitled to the damages,
then it does not mean that the court will declare him free from the liability but he will not be liable
under this head.
In the case of Bird v. Holbrook[18], the plaintiff was entitled to recover damages suffered by him
due to the spring-guns set by him in his garden without any notice for the same.
In Pitts v. Hunt[19], there was a rider who was 18 years of age. He encouraged his friend who was
16 years old to drive fast under drunken conditions. But their motorcycle met with an accident, the
driver died on the spot. The pillion rider suffered serious injuries and filed a suit for claiming
compensation from the relatives of the deceased person. This plea was rejected as he himself was the
wrongdoer in this case.

Inevitable accident
Accident means an unexpected injury and if the same accident could not have been stopped or
avoided in spite of taking all due care and precautions on the part of the defendant, then we call it an
inevitable accident. It serves as a good defense as the defendant could show that the injury could not
be stopped even after taking all the precautions and there was no intent to harm the plaintiff.
In Stanley v. Powell[20], the defendant and the plaintiff went to a pheasant shooting. The defendant
fired at a pheasant but the bullet after getting reflected by an oak tree hit the plaintiff and he suffered
serious injuries. The incident was considered an inevitable accident and the defendant was not liable
in this case.
In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha[21], the premises which belonged
to the plaintiff were let out to the defendant. The tenant i.e. the defendant requested the landlord to
repair the electric wirings of the portion which were defective, but the landlord did not take it
seriously and failed to do so. Due to a short circuit, an accidental fire spread in the house. No
negligence was there from the tenant‘s side. In an action by the landlord to claim compensation for
the same, it was held that this was the case of an inevitable accident and the tenant is not liable.

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In Shridhar Tiwari v. U.P. State Road Transport Corporation[22], a bus of U.P.S.R.T.C. reached near
a village where a cyclist suddenly came in front of the bus and it had rained heavily so even after
applying breaks the driver could not stop the bus as a result of this the rear portion of the bus hit
another bus which was coming from the opposite side. It was known that there was no negligence on
the part of both the drivers and they tried their best in avoiding the accident. This was held to be a
case of inevitable accident. The defendant i.e. U.P.S.R.T.C. was held not liable for this act.
In the case of Holmes v. Mather[23], the defendant‘s horse was being driven by his servant. Due to
the barking of dogs, the horse became unmanageable and started to bolt. In spite of every effort of
the driver, the horse knocked down the plaintiff. This makes it a case of an inevitable accident and
the defendants were held not liable for the incident.
In Brown v. Kendall[24], the dogs of the plaintiff and the defendant were fighting with each other.
The defendant tried to separate them and while doing so, he accidentally hit the plaintiff in the eye
causing him some serious injuries. The incident was purely an inevitable accident for which no claim
could lie. So, the court held that the defendant is not liable for the injuries suffered by the plaintiff as
it was purely an accident.
In Padmavati v. Dugganaika[25], the driver of the jeep took the jeep to fill petrol in it. Two strangers
took a lift in the jeep. The jeep got toppled due to some problem in the right wheel. The two
strangers who took lift were thrown out of the jeep and they suffered some injuries leading to the
death of one person.
The conclusions which came out of this case are:
 The master of the driver could not be made liable as it was a case of a sheer accident and the
strangers had voluntarily got into the vehicle.
 The principle of volenti non fit injuria was applicable here.
 It was a case of a sheer accident which no one could foresee.
In Nitro-Glycerine case[26], A firm of carriers i.e. the defendants, in this case, was given a wooden
case which was to carry from one place to another. The contents of the box were unknown. There
was some leakage in the box and the defendants took the box to their office so that they can examine
it. After taking out the box, they saw that it was filled with Nitro-Glycerine and then it suddenly
exploded and the office building which belonged to the plaintiffs got damaged. The defendants were
held not liable for the same as the same could not be foreseen.
In the case of Oriental Fire & General Ins. Co. Ltd. v. Raj Rani[27], the front right spring and other
parts of a truck broke all of a sudden and the driver could not control it and dashed into a tractor that
was coming from the opposite direction. The driver and the owner of that truck could not prove that
they had taken all reasonable precautions while driving the truck. The court held that this case comes
under negligence and has nothing to do with the inevitable accident and the defendant was liable.
Act of God
Act of God serves as a good defense under the law of torts. It is also recognized as a valid defense in
the rule of ‗Strict Liability‘ in the case of Rylands v. Fletcher[28].
The defense of Act of God and Inevitable accident might look the same but they are different. Act of
God is a kind of inevitable accident in which the natural forces play their role and causes damage.
For example, heavy rainfall, storms, tides, etc.

Essentials required for this defense are:

 Natural forces‘ working should be there.
 There must be an extraordinary occurrence and not the one which could be anticipated and
guarded against reasonably.

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Working of natural forces
In Ramalinga Nadar v. Narayan Reddiar[29], the unruly mob robbed all the goods transported in the
defendant‘s lorry. It cannot be considered to be an Act of God and the defendant, as a common
carrier, will be compensated for all the loss suffered by him.
In Nichols v. Marsland[30], the defendant created an artificial lake on his land by collecting water
from natural streams. Once there was an extraordinary rainfall, heaviest in human memory. The
embankments of the lake got destroyed and washed away all the four bridges belonging to the
plaintiff. The court held that the defendants were not liable as the same was due to the Act of God.

Occurrence must be extraordinary

Some extraordinary occurrence of natural forces is required to plead the defense under the law of
torts.
In Kallu Lal v. Hemchand[31], the wall of a building collapsed due to normal rainfall of about 2.66
inches. The incident resulted in the death of the respondent‘s children. The court held that the
defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was
normal and something extraordinary is required to plead this defense. The appellant was held liable.

Private defense
The law has given permission to protect one‘s life and property and for that, it has allowed the use of
reasonable force to protect himself and his property.
 The use of force is justified only for the purpose of self-defence.
 There should be an imminent threat to a person‘s life or property.
For example, A would not be justified in using force against B just because he believes that some
day he will be attacked by B.
 The force used must be reasonable and to repel an imminent danger.
For example, if A tried to commit a robbery in the house of B and B just draw his sword and
chopped his head, then this act of A would not be justified and the defence of private defence cannot
be pleaded.
 For the protection of property also, the law has only allowed taking such measures which are
necessary to prevent the danger.
For example, fixing of broken glass pieces on a wall, keeping a fierce dog, etc. is all justified in the
eyes of law.
In Bird v. Holbrook[32], the defendant fixed up spring guns in his garden without displaying any
notice regarding the same and the plaintiff who was a trespasser suffered injuries due to its automatic
discharge. The court held that this act of the defendant is not justified and the plaintiff is entitled to
get compensation for the injuries suffered by him.
Similarly, in Ramanuja Mudali v. M. Gangan[33], a landowner i.e. the defendant had laid a network
of live wires on his land. The plaintiff in order to reach his own land tried to cross his land at 10 p.m.
He received a shock and sustained some serious injuries due to the live wire and there was no notice
regarding it. The defendant was held liable in this case and the use of live wires is not justified in the
case.
In Collins v. Renison[34], the plaintiff went up a ladder for nailing a board on a wall in the
defendant‘s garden. The defendant threw him off the ladder and when sued he said that he just gently
pushed him off the ladder and nothing else. It was held that the force used was not justifiable as the
defence.

Mistake
The mistake is of two types:
 Mistake of law
 Mistake of fact

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In both conditions, no defence is available to the defendant.
When a defendant acts under a mistaken belief in some situations then he may use the defence of
mistake to avoid his liability under the law of torts.
In Morrison v. Ritchie & Co[35], the defendant by mistake published a statement that the plaintiff
had given birth to twins in good faith. The reality of the matter was that the plaintiff got married just
two months before. The defendant was held liable for the offence of defamation and the element of
good faith is immaterial in such cases.
In Consolidated Company v. Curtis[36], an auctioneer auctioned some goods of his customer,
believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer
for the tort of conversion. The court held auctioneer liable and mentioned that the mistake of fact is
not a defence that can be pleaded here.

Necessity
If an act is done to prevent greater harm, even though the act was done intentionally, is not
actionable and serves as a good defence.
It should be distinguished with private defence and an inevitable accident.
The following points should be considered:
 In necessity, the infliction of harm is upon an innocent whereas in case of private defence the
plaintiff is himself a wrongdoer.
 In necessity, the harm is done intentionally whereas in case of an inevitable accident the harm
is caused in spite of making all the efforts to avoid it.

For example, performing an operation of an unconscious patient just to save his life is justified.
In Leigh v. Gladstone[37], it was held that the forcible feeding of a person who was hunger-striking
in a prison served as a good defence for the tort of battery.
In Cope v. Sharpe[38], the defendant entered the plaintiff‘s premises to stop the spread of fire in the
adjoining land where the defendant‘s master had the shooting rights. Since the defendant‘s act was to
prevent greater harm so he was held not liable for trespass.
In the case of Carter v. Thomas[39], the defendant who entered the plaintiff‘s land premises in good
faith to extinguish the fire, at which the fire extinguishing workmen were already working, was held
guilty of the offence of trespass.
In Kirk v. Gregory[40], A‘s sister-in-law hid some jewellery after the death of A from the room
where he was lying dead, thinking that to be a more safe place. The jewellery got stolen from there
and a case was filed against A‘s sister-in-law for trespass to the jewellery. She was held liable for
trespass as the step she took was unreasonable.
Statutory authority
If an act is authorized by any act or statute, then it is not actionable even if it would constitute a tort
otherwise. It is a complete defence and the injured party has no remedy except for claiming
compensation as may have been provided by the statute.
Immunity under statutory authority is not given only for the harm which is obvious but also for the
harm which is incidental.
In Vaughan v. Taff Valde Rail Co.[41], sparks from an engine of the respondent‘s railway company
were authorized to run the railway, set fire to the appellant‘s woods on the adjoining land. It was held
that since they did not do anything which was prohibited by the statute and took due care and
precaution, they were not liable.
In Hammer Smith Rail Co. v. Brand[42], the value of the property of the plaintiff depreciated due to
the loud noise and vibrations produced from the running trains on the railway line which was
constructed under a statutory provision. The court held that nothing can be claimed for the damage
suffered as it was done as per the statutory provisions and if something is authorized by any statute
or legislature then it serves as a complete defence. The defendant was held not liable in the case.

23
In Smith v. London and South Western Railway Co.[43], the servants of a railway company
negligently left the trimmings of hedges near the railway line. The sparks from the engine set fire to
those hedges and due to high winds, it got spread to the plaintiff‘s cottage which was not very far
from the line. The court held that the railway authority was negligent in leaving the grass hedges near
the railway line and the plaintiff was entitled to claim compensation for the loss suffered.
Absolute and conditional authority
The authority given by a statute can be of two types:
 Absolute
 Conditional
In the case of Absolute authority, there is no liability if the nuisance or some other harm necessarily
results but when the authority is conditional it means that the same is possible without nuisance or
any other harm.
In the case of Metropolitan Asylum District v. Hil[44], the hospital authorities i.e. the appellants
were granted permission to set up a smallpox hospital. But the hospital was created in a residential
area which was not safe for the residents as the disease can spread to that area. Considering it a
nuisance an injunction was issued against the hospital. The authority, in this case, was conditional.

Conclusion
This article is to emphasize the important role played by General Defenses in avoiding one‘s liability
in torts. While learning about tort it is necessary to learn about General Defenses in the law of Tort.
General defenses are a set of ‗excuses‘ that you can undertake to escape liability. In order to escape
liability in the case where the plaintiff brings an action against the defendant for a particular tort
providing the existence of all the essentials of that tort, the defendant would be liable for the same. It
mentions all the defenses which can be pleaded in cases depending upon the circumstances and
facts.
In order to plead a defence it is important to understand it first and then apply the suitable defence
accordingly.

Discharge of Torts in India

Meaning of Tort
The word ―Tort‖ is derived from the French word ―Tortum‖ which means ―Twisted‖.
A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by the act of
the other person, i.e. the breach of the legal right of the other person.
The tort is a civil wrong, but all the civil wrong doesn‘t come under the ambit of tort. If one person
does any civil wrong to another person, and that wrong comes under the ambit of tort then the person
against whom the wrong has been done is entitled to get remedy in form of unliquidated damages.
But the law of tort also discusses various methods by which the act of tort gets discharged.

Discharge of Tort
There are seven different modes through which tort is discharged and no remedy will lie for tort. It is
a process through which the tort comes to an end. A wrongdoer is not liable for his actions.
Following are the methods of discharge of torts.

Death of the parties

Here the maxim „actio personalis moritur cum persona‘ applies which means if the person dies his
personal right of action dies with him.
Actio personalis moritur cum persona this is the important maxim, it means if the person who
commits a tort or the person against whom the tort is committed dies, the personal right or the right
to receive the damages or the right of action dies with the person.

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There are two situations where this maxim applies
 Death of the person against whom tort was committed i.e., Petitioner.
when the person against whom the tort was committed i.e. the plaintiff who approached the court and
filed a case died, so his personal right of action dies with him only.

Illustration
If A files a case against the act of tort done by B. If A dies during the course of trial and the case is
still pending before the court. Due to the death of the A, the tort gets discharged, as the right of
action of A dies with him only.

Exceptions to the maxim of „Actio personalis moritor cum persona‟ with respect to Petitioner
In India there are laws which constitute the exception to the above maxim like;
The Legal Representative Suits Act, 1885
As per this Act, the legal representative or the executors of any person, after his death can represent
the deceased person in the court of law.

Illustration
If A died during the procedure of trial of court. His legal heir or representative can represent him in
the court of law.
Similarly, in different laws/act like Fatal accident act, the Indian Succession Act, Workmen
Compensation Act etc. the representative of the plaintiff can represent him in the court of law.
 Death of the person who commits tort i.e. Defendant
It means the person who commits the act of tort against any other person i.e. the defendant dies, the
tort gets discharged.
Illustration
If Ram commits the act of tort against Geeta, if Geeta files a complaint against Ram, but if during the
course of trial Ram died, then his right of action also dies with him i.e. the discharge of tort.
In Prusti v. Mohanty
In this case, the defendant received some amount by misrepresentation of fact, but the defendant
died. The High Court of Orissa held that where a money decree was passed against a person in
respect of the amount received by him from the decree-holder by misrepresentation of the facts, the
liability would be personal and could not be extended to his son under the law, as whatever the relief
a decree-holder has against the father ended with the father‘s death.
Exceptions to the maxim of „Actio personalis moritor cum persona‟ with respect to Defendant.
In India there are various laws which constitute the exception to the above maxim like;

The Legal Representative Suits Act, 1885-

As per this act, if any person involved in any type of tortious act, died during the course of the trial.
The right of action passes to the legal representative of that person.
Illustration
If A does an act of trespass to the good against B in past. Now if A dies and it is proved that he was
liable for damaging B‘s good. So the damages for damaging B‘s good has to be paid by his legal
representative.
Similarly, in different laws/act like the Fatal Accident Act, Indian Succession Act, Workmen
Compensation Act etc. The representative of the defendant has to represent him in the court of law
By Waiver
The second method of discharge of tort is by the waiver. The concept of waiver is when a person has
more that one remedy available to him, as a result, he has to elect one of them. He cannot apply for
both the remedy except in the case of defamation and assault.

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Illustration
If A files a case against B that B has committed a tort against A. If A has right to get more than one
remedy he has to choose any one of them, i.e. if he has the remedy in both tort and contract law, now
he has to choose one between them.

The main two principles lying in the doctrine of Waiver are:

1. The person has to choose any one remedy.
2. If the person fails to get the remedy he chooses, the court of law does not allow him to go
back to an alternative remedy.
Illustration
If A files a case against Z and has two remedies for which he can approach the court of law. If he
chooses the first remedy and loses the case. A cannot approach to the court for the alternate remedy
i.e., remedy number 2.

The Waiver can be Implied or Express

In Express waiver, the person expressly communicates about his choice in the court of law.
Illustration
If A file a case and he has the remedy in both, contract as well as Tort. When the court asks him he
has to communicate his choice to the court.
In the Implied form of waiver, the person impliedly communicates about his choice for which
remedy he is applying.

Illustration
If A has two remedies available to him like one under contract and one under Tort. if he applies for
Contract, it becomes clear, he elects the remedy under the contract.
Accord and Satisfaction
Concept of accord means when the parties of the tort i.e. the person who commits the tort and the
person against whom the tort has been committed, come to an agreement and settle the dispute. Such
an agreement is known as Accord. In general term, it means settling the issue by accepting some
consideration in lieu of the right of action.
Satisfaction means the actual payment of consideration agreed by both, the person who commits a
tort and the one against whom the tort committed.
When both the accord and satisfaction once completed, it results in the discharge of tort and the
dispute does not proceed in a court of law.

Illustration
If A dies due to injury caused by B‘s car. If A‘s family comes to an agreement that B will pay Rs.
1,50,000 as compensation to them, that‘s the situation of Accord. When they received the actual
payment of 1,50,000 Rs. from B, that‘s the situation of Satisfaction. So, by settling the issue and
accepting some consideration A‘s family lost their right of action and the act of tort discharged.
The only condition in the concept of Accord and Satisfaction is the consent of the party should be
free and not from fraud, coercion or undue influence.

Illustration
If A, a son of a successful businessman brutally hit one of his servant i.e. trespass to the body and if
A tries to make his servant enter into accord by using some type of undue influence on him. Due to
that influence, the servant gave his consent, this is not considered as free consent and the accord and
satisfaction are not valid.
Release

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A Release means giving up the right to the action. It means when a person by his own choice
discharged the tort. This right is only provided to the person against whom the wrong has been done.

Illustration
Situation 1: A is the person against whom B does any act of Tort and if A, by his free consent want
to release B from the liability, he can do so.
Situation 2: A is the person against whom B and C both commit an act of tort and A by his choice
release B from the liability, this does not mean that C is also released from his liability.
The release should be voluntary and given by free consent from the injured person. If the consent is
taken by coercion, undue influence, or any other unlawful means then that release should not be
counted as a release and the tort is not discharged.

Illustration
If a person is a police inspector, commits an act of tort against another person. By using his position
and by threat, take the consent of the injured person and release himself from the liability, that
release is not a valid release.

Judgment
In this method, the discharge of tort happens by the judgment given by the court. If once the court
gives judgment on the matter, the tort gets discharged, no appeal for the same act of tort can be
claimed for the same remedy in the court of law.
The concept of this method of discharge of tort is based on the legal maxim of Res-Judicata, it
means, if any cause of action decided previously by the court, the same cause of action should not be
entertained by the court twice.

Illustration
If A gets the remedy against B for the accident committed by him previously by the judgement of the
court. Later he found that he needs to go through a further operation. He cannot claim another
remedy for the same again in the court of law.
In Fitter v. Veal, (1701 12 Mod. Rep. 542)
In this case, the plaintiff files a case against the defendant demanding damages against the act of
assault by the defendant and finally he gets the remedy from the defendant as the court of law allows
the remedy to him. Later he discovered that he has to go through a number of surgeries. He filed
another petition against the defendant demanding more remedy against the act of assault again in the
court of law.
The court denied the petition and state that, If once court gives judgment on the matter, no further
appeal for the same act of tort can be filed in the court of law as the tort gets discharged.

Exceptions
 If the petition was between the same party but is for different remedy or the action taken in
respect to the violation of another right. Then the petition can be allowed.
In Brunsden v. Humphrey:
In this case, the plaintiff was a cab driver and already received compensation against the damage to
his cab. Later discovered, due to the injury caused in the accident, he got a fracture in his hand. He
has the right to apply for the remedy against the trespass to his body as well.
 If the person who is liable for the act previously does the same act another time.

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Illustration
If A commits the tort of trespass against B previously and held liable by the court of law. If he again
commits the same crime against B. If A plea defence that the court cannot punish him for the same
offence twice. The defence is not valid because this case was considered as a fresh one.
Acquiescence
In this method, the tort gets discharged because of the incapacity of the plaintiff himself i.e. if he has
no time to go to court, no money to pay the court fees, or any other incapacity. When any person is
entitled to enforce his right, and he doesn‘t enforce his right for a long time, this makes other party
waived from his liability.

Illustration
if A is entitled to enforce his right against B. If A neglects to enforce his right for a long time, it
automatically waived B from his liability.
Law of limitation
Under this method the tort gets dismissed due to the limitation i.e. when the prescribed time limit to
file the case gets over, in this situation the tort gets dismissed and no person is entitled to enforce his
right.
Like, in the case of false imprisonment or libel the limit to file a case is 1 year, in case of trespass to
immovable property, the limit set is 3 years etc. after the time limit gets over, no person can enforce
his/her right.
Illustration
If a tort of trespass to the property has been committed by B against A, if A fails to apply against it
within 3 years in the court of law, then he cannot apply as he lost his right to apply due to limitation.
Conclusion
A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by the act of
the other person i.e. the breach of the legal right of the other person. But the right of action of the
party can become discharged in certain conditions like the death of any of the party, by Waiver, by
Accord and Satisfaction, by Release, or by the judgment of the court of law. Through the above
methods, the tort becomes discharge and no remedy will lie for tort.

What are the Remedies Available in the Law of Torts?

Introduction
Let us begin this topic by understanding what ‗remedy‘ actually means in Law. A party is said to be
‗aggrieved‘ when something that they may have been enjoying has been taken away from them by
another party. This is an infringement of a party‘s rights and it is treatable by law. A legal remedy is
one such treatment. When the aggrieved person is taken back to the position that they were enjoying
before their rights were infringed, they are said to have been provided with a legal remedy. There are
various types of legal remedies. For instance, if something that belongs to you has been taken away
from you by a party, the court can either ask them to pay you back in money, or ask them to return
your belongings as they were, and may also punish the party in some cases. There are two broad
types of remedies in Tort Law.
1. Judicial Remedies
2. Extra-Judicial Remedies

Judicial Remedies
As the term suggests, these are the remedies that the courts of law provide to an aggrieved party.
Judicial remedies are of three main types:
1. Damages
2. Injunction
3. Specific Restitution of Property

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Extra-judicial Remedies
On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies
are called extra-judicial remedies. These are of five main types:
1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
5. Distress Damage Feasant
Now, let us discuss both judicial and extrajudicial remedies in some detail.

Damages
Damages, or legal damages is the amount of money paid to the aggrieved party to bring them back to
the position in which they were, before the tort had occurred. They are paid to a plaintiff to help
them recover the loss they have suffered. Damages are the primary remedy in a cause of action for
torts. The word ―damages‖ should not be confused with the plural of the word ―damage‖, that
generally means ‗harm‘ or ‗injury‘.

Types of damages
Depending upon the ‗objective‘ of the compensation, that is, whether the plaintiff is to be
compensated or the defendant has to be ‗punished‘, there are 4 types of damages:
1. Contemptuous– contemptuous damages are also called ignominious damages. The amount of
money awarded by the court in this case is very low, as to show the court‘s disapproval, that
is, when the plaintiff himself is at some fault and cannot wholly be said to be ‗aggrieved‘.
2. Nominal– Nominal damages are awarded when plaintiff‘s legal right is infringed, but no real
loss has been caused to him. For example, in cases of trespass, when damage has not been
caused, a legal right is still infringed. Here, the objective is not to compensate the plaintiff.
3. Substantial– Substantial damages are said to be awarded when the plaintiff is compensated
for the exact loss suffered by him due to the tort.
4. Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when
the defendant has excessively been ignorant of the plaintiff‘s rights and great damage has
been caused to the defendant. The objective here is to create a public example and make
people cautious of not repeating something similar.

General and Special Damages

When there is a direct link between the defendant‘s wrongful act and the loss suffered by the
plaintiff. For instance, a person A, due to his negligence, collides his car with a person B, who has a
rare bone condition. In this case, the actual damage suffered by the plaintiff will be compensated, not
taking into account the rare bone condition of the plaintiff. General damages are ascertained by
calculating the amount of actual loss suffered by the plaintiff. For e.g, physical pain and loss caused
due to it, or if the quality of life of the plaintiff is lowered.
Special damages are awarded by proving special loss. There is no straitjacket formula to derive the
actual amount. The plaintiff just has to prove the loss suffered by him/her. For e.g., medical expense,
loss of wage (prospective), repair or replacement of lost or damaged goods/property.

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Damages for nervous or mental shock
Nervous shock
When, due to a negligent act or any other tortious act, a plaintiff‘s nerves are damaged due to shock
and trauma, irrespective of whether a physical harm has also been caused with it, he/she is entitled to
be compensated for it. The question before the court of law is whether the nervous shock is actually a
resulting consequence of the defendant‘s act.

Mental shock
Mental shock, on the other hand is the shock to a person‘s intellectual or moral sense. Mental shock,
too, can be compensated for in a suit for damages. Earlier, it was thought that mental shock cannot
really be compensated for, because it cannot be measured, but recently the courts have recognized
that the damage in case of mental shock is just as real as a physical injury.
Cases
McLoughlin v O‟Brian
The plaintiff‘s husband and three children met with an accident with the defendant, due to the
defendant‘s negligence. After seeing her husband and children grievously injured, and hearing the
news of one of her children‘s death, the plaintiff suffered nervous and mental shock and went into a
state of clinical depression. The House of Lords in this case ruled in favour of the plaintiff,
McLoughlin, whereby she recovered damages for her nervous shock too.
Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai Rambhai
The plaintiffs in this case were relatives (mother and children) of a middle-aged couple who met with
an accident when another moving bus drove over them as soon as they deboarded their own. The
court delivered a judgement in favour of the plaintiffs, and they received compensation under the
heading of ‗Pain, Shock and Sufferings‘.

Measurement of Damages
There is no arithmetic formula to decide the quantum of damages. Therefore, a number of factors,
including the facts and circumstances of each case are to be considered to ascertain the damages.
Damages are therefore awarded at the discretion of the court.

Remoteness of „Damage‟
As discussed above, the main aim is to bring the aggrieved party back to the status quo, that is,
compensating the plaintiff. As a general rule, damage suffered by the plaintiff should be a direct
consequence of the defendant‘s act. Any action can have multiple following consequences. A person
cannot be held accountable for all the consequences resulting from his act. The remoteness of
consequences resulting from a person‘s act has been an issue of debate in the Law of Torts over the
years. Various tests were developed over time to determine what consequences of an act can a person
be held liable for. When there is no cause and effect relationship between the defendant‘s act and the
injury caused to the plaintiff, the damage is said to be too remote to be compensated.
Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)
In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to the
defendants. While unloading cargo from the ship, the defendant‘s employees accidentally knocked a
plank into the ship, which caused a spark to ignite, that resulted in an explosion. The question before
the court was, whether the damage due to the explosion was a direct result of the act of the
defendant‘s employee.

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Leisboch Case (Liesbosch Dredger v SS Edison)
In this case, the plaintiff‘s dredger was damaged and sunk by the defendants (Edison), due to their
negligence. The dredger was working under a contract with the terms that some amount had to be
paid if the work was not completed on time. The plaintiff did not have enough funds to arrange a
new dredger to complete the said work. They claimed all the resulting damages. The court held that
the plaintiff‘s own lack of funds cannot be compensated by the defendants.
Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks & Engineering Co.)
In this case, the defendants owned a ship (The Wagon Mound No. 1). The plaintiffs were the owners
of a dock named Morts Dock. Due to the defendant‘s negligence a spark was ignited that set some
floating cotton waste nearby on fire, due to which the plaintiff‘s wharfs and their ship, the Wagon
Mound was damaged.

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into the position that
he/she was in before the injury due to the tort occurred, or in other words, to bring him back to the
position he would have been in, if the tort did not ever occur.

Injunction
Injunction is an equitable remedy available in torts, granted at the discretion of the court. An
equitable remedy is one in which the court, instead of compensating the aggrieved party, asks the
other party to perform his part of the promises. So, when a court asks a person to not continue to do
something, or to do something positive so as to recover the damage of the aggrieved party, the court
is granting an injunction. A very simple example is that of a court ordering a company of builders to
build on a land near a hospital, for the construction sounds may be creating a nuisance to the
hospital.

An injunction is an order of a court that restrains a person from continuing the commission of a
wrongful act, or orders the person to commit a positive act to reverse the results of the wrongful act
committed by him, that is, to make good what he has wrongly done. To receive injunction against a
party one must prove damage or the possibility of prospective damage (apprehended damage). An
injunction can be temporary or permanent, and mandatory or prohibitory. Let us discuss each of
them one by one. Law relating to injunctions is found in the Code of Civil Procedure, 1908 and from
Section 37 to Section 42 of the Specific Relief Act (henceforth referred to as the Act), 1963.
A suit of injunction can be filed against any individual, group or even the State.
According to the Section 37 of the Act there are two types of injunctions–temporary and perpetual
(permanent).

Temporary Injunction
A temporary or interlocutory injunction is granted during the pendency of a case, to maintain the
status quo and avoid further damage until the court passes a decree. It prevents the defendant from
continuing or repeating the breach that he had been doing. A temporary injunction is granted to
prevent the party from suffering through the damages during the court proceedings. They may be
granted at any stage during the pendency of the case. Either of the parties can seek an injunction to
be granted. The power to grant a temporary injunction is derived from Rule 1 and 2 of Order XXXIX
(39) of the Code of Civil Procedure. Certain principles are kept in mind while granting a temporary
injunction:
1. There has to be a prima facie case.
2. A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)
3. There has to be an irretrievable damage. (The damage has to be such that cannot be
compensated for, in money)

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Cases in which temporary injunction is granted
A temporary injunction may be granted in any of the following cases:
 An injunction can be granted in favour of a party and against the government if the
government is barring the party from doing a lawful act or freely exercising his rights.
 Under Section 80 of the CPC, an injunction can be granted against an act done by a
government/public officer working in his official capacity.
 When the property in dispute is in danger of being damaged or wasted by either of the parties.
 In cases of tenancy. A plaintiff being unjustly removed as a tenant, that is, not through the due
legal process, can seek an injunction against his/her landlords.
 In case of a continuing nuisance, where the defendant is asked to discontinue his act of
nuisance so as to prevent further damage to the plaintiff while the case is being decided.
 In cases of trademark, copyright infringement, etc.

Permanent Injunction
A perpetual or permanent injunction is granted after the court has heard the case from both sides and
passes a decree. Here, since it is a court decree, it is final and perpetually applicable. That is, the
defendant cannot continue his wrongful act, or has to do a positive act for perpetuity.
Cases in which permanent injunction is granted
 To avoid multiplicity of judicial proceedings.
 When damages do not adequately compensate the plaintiff.
 When the actual damage cannot be ascertained.

Mandatory Injunction
When the court has asked the party to do something, it is a mandatory injunction. That is, when the
court compels a party to perform a certain act so as to bring back the aggrieved party or the plaintiff
to the position that he/she was in before the commission of the act of the defendant. For example, the
court may ask a party to make available some documents, or to deliver goods, etc.

Prohibitory Injunction
When the court has asked the party to not do something, it is a prohibitory injunction. The court
prohibits a person, or refrains them from doing something that is wrongful. For instance, it may ask
the party to remove an object of nuisance or to stop his act of nuisance.

When can injunctions not be granted?

According to Section 41 of the Specific Relief Act, an injunction cannot be granted:
1. To stop a person from filing a case in the same court in which the injunction suit is sought,
unless such an injunction is being asked for, to prevent a multiplicity of proceedings.
2. To restrain or stop a person from filing or fighting a case in a court that is not subordinate to
the one in which injunction is being sought.
3. To prevent a person from applying to any legislative body
4. To restrain a person from filing or fighting a criminal case
5. To prevent the breach of contract, performance of which is not enforced specifically
6. To prevent an act that is not a clear act of nuisance
7. To prevent a continuing breach in which the plaintiff has himself acquiesced
8. When an equally effective relief can be obtained in any other way or through any other sort of
proceeding
9. When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him
from the assistance of the court.
10. When the plaintiff has no personal interest in the said matter.

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Limitation period
According to Article 58 of the Limitation Act, 1963, the period of limitation for filing an injunction
suit is three years from when the ‗right to sue first accrues‘, that is, when the right to cause of action
commences, not the cause of action itself. It is an important question of law as to when the cause of
action actually arises. In the case of Annamalai Chettiar vs A.M.K.C.T. Muthukaruppan
Chettiar, it was held that the right to sue accrues ―when the defendant has clearly or
unequivocally threatened to infringe the right asserted by the plaintiff in the suit‖.
Case:
M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products
In this case, the plaintiff filed a suit for perpetual injunction against M/s. India Stationery Products
for infringement of their trademark on their product ‗Nataraj‘, in respect of pencils, pens, sharpeners,
erasers, etc, claiming that the trademark was adopted by them in 1961, and that the defendants had
wrongly got themselves registered a copyright similar to them. The court ruled in favour of the
plaintiff granting the defendant an interim injunction.
Specific Restitution of Property
The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property.
Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully
dispossessed of his property or goods, he is entitled to the restoration of his property.
Extra-Judicial Remedies
When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies
are called extra-judicial remedies. In this, the parties take the law in their own hands. Some examples
are:

Expulsion of trespasser
A person can use a reasonable amount of force to expel a trespasser from his property. The two
requirements are:
 The person should be entitled to immediate possession of his property.
 The force used by the owner should be reasonable according to the circumstances.
Illustration: A trespasses into B‘s property. B has the right to use reasonable force to remove him
from his property and re-enter himself.

Re-entry on land
The owner of a property can remove the trespasser and reenter his property, again by using a
reasonable amount of force only.

Re-caption of goods
The owner of goods is entitled to recapture his/her goods from any person whose unlawful
possession they are in. Re-caption of goods is different from specific restitution in that it is an extra-
judicial remedy, in which the person need not ask the court for assistance, instead, takes the law in
his own hands.
Illustration: If A wrongfully acquires the possession of B‘s goods, B is entitled to use reasonable
force to get them back from A.

Abatement
In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the
object causing nuisance.
Illustration: A and B are neighbours. Branches of a tree growing on A‘s plot enter B‘s apartment
from over the wall. After giving due notice to A, B can himself cut or remove the branches if they‘re
causing him nuisance.

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Distress Damage Pheasant
Where a person‘s cattle/other beasts move to another‘s property and spoil his crops, the owner of the
property is entitled to take possession of the beasts until he is compensated for the loss suffered by
him.

Conclusion
In torts, the object behind remedying a party is to take the aggrieved party back to the status or
position that they were enjoying before the occurrence of tort. It is not to punish the defendant, as in
crime. Remedies can be judicial and extrajudicial. When due process of law is required for a party to
gain remedy, and the courts are involved, the remedies are called judicial remedies. When the law is
taken in his/her own hands by the parties, they are called extra-judicial remedies.

Joint Tortfeasors and Laws in India

Introduction
When two or more persons unite to cause damage to another person, then they will be liable as joint
Tortfeasors. All those who actively participate in the civil wrong commission are joint tortfeasors.
Based on the percentage of damage caused by his negligent act, each joint tortfeasor is responsible
for paying a portion of the compensation granted to the complainant. According to the principle of
contribution, the defendant who pays more than his share of the damages, or who pay more than he is
at fault, may bring an action to recover from the other defendant.
Illustration
The claimant has the right to recover the damages from both the defendants, if X and Y are found to
be at fault.

Liability of Independent Tortfeasor

They are severally liable for the same damage due to an independent course of action. In Thompson
v. London County Council, it was observed that ―the damage is one but the cause of action which
led to the damage are two‖. Such tortfeasors are, therefore, severally liable for the same damage, not
jointly liable for the same tort.
In Koursk case, Koursk and Clan Chisholm collided with one another. As a result, the ship Clan
Chisholm collided and sank another ship Itria. The owners of the damaged ship Itria recovered the
damages from Clan Chisholm for the loss suffered but were not fully satisfied as the liability of the
owners of Clan Chisholm was limited to the lesser amount. Subsequently, owners of Itria filed a suit
against the Koursk also. It was held that Koursk and Clan Chisholm were not joint tortfeasors but
only independent tortfeasors. The liability of the Independent tort was held to be several and not joint
and therefore, there could be as many causes of action as the number of tortfeasors.

Liability of Several Concurrent Tortfeasors

When the same injury is caused to another person by two or more person as a result of their separate
tortious acts, this results in several concurrent tortfeasors. Even where successive injuries are caused,
the parties remain multiple, concurrent tortfeasors as long as the negligence of each is both a factual
and proximate cause of each injury.
Illustration
Several concurrent tortfeasors will occur in a chain collision situation, as described in the case
of Rutter v Allen.[1] In this case, the plaintiff stopped his vehicle behind a truck that had come to a
sudden stop. The Plaintiff was then struck from behind by a vehicle driven by the defendant X which
was struck by a vehicle driven by the defendant Y. The exact sequence of the collisions could not be
determined with certainty because they all occurred within a very short time frame. Despite this, it
was held that due to both the defendant‘s negligence, the damage had been caused to the plaintiff‘s

34
vehicle. As a consequence, the accused were several concurrent tortfeasors and were jointly and
severally liable for the damage caused by their negligence.
If a complainant suffers multiple accidents, several concurrent tortfeasors may also be the individual
tortfeasors from each accident. For example, in a motor vehicle accident in Hutchings v Dow[2], the
complainant suffered damage. He was further injured in an assault about 18 months later. It was
determined that the complainant suffered from severe and ongoing depression resulting from both
the motor vehicle accident and the assault. The court stated that ―several tortfeasors whose acts
combined to produce the same damage, i.e. depression,‖ were the defendants from the motor vehicle
accident and the assault perpetrator.

Liability of Joint Tortfeasors

When two or more persons join together for common action, then all the persons are jointly and
severally liable for any tort committed in the course of such action. There were three principles in
English Common Law with regard to the liability of joint tortfeasors.
 The first principle is that the liability of wrongdoers is joint and several i.e. each is liable for
the whole damage. The injured may sue them jointly or separately.
 The second principle was laid down in the case of Brinsmead v Harrison, where it was held
that a judgment obtained against one joint wrongdoer released all the others even though it
was not satisfied.
 The third rule was laid in the case of Merryweather v Nixon, where it was held that in
common law, no action for contribution could be sustained by one wrongdoer against another,
although one who sought a contribution might have been compelled to pay the full damages.
The reason alleged for this rule was that any such claim to the contribution must be based on
an implied contract between the tort-feasors and that such a contract was illegally concluded
with a view to committing an illegal act.
But the above rules were virtually abolished by the Law reforms Act, 1935 and the Civil Liability
Act, 1978. The first rule in Brinsmead case being unjust, was abolished by the Act 1935 and
therefore by the Act of 1978 which now provides that judgment recovered against any person liable
in respect of any debt or damage should not be bar to an action, or to the continuance of an action,
against another person who is jointly liable with him with respect to the debt and damage.
The second rule in Merryweather case is that a tortfeasor who has been held liable cannot recover
contribution from other joint tortfeasors, being unjust, has also been abolished by the Act of 1935
which, as per section 6(1), provides that a tortfeasor who has been held liable to pay more than the
share of the damages, can claim contribution from the other joint tortfeasors.
The third unjust rule was created by section 6(1)(b) of the Law Reform Act, of 1935 that if
successive actions are brought, the amount of damages recoverable shall not, in the aggregate
exceed, the amount of damages awarded in the first judgment. This rule, being unjust has now been
repealed and replaced by section 4 of the civil liability Act, 1978 which now disallows the only
recovery of cost in the subsequent suits, unless the court is of the opinion that there was a reasonable
ground for bringing the action.

Laws in India
In India, there is no statutory law on joint tortfeasors‘ liability. As stated above, in England the Law
Reform Act, 1935 and the Civil Liability Act 1978, have virtually brought the position of joint-
tortfeasors on par with the independent tortfeasors. The question therefore arises, should the Indian
courts follow the common law on joint tortfeasors which was laid down in Brinsmead and
Merryweather cases and was prevailing in England prior to 1935 or the law enacted by the British
Parliament in 1935 and 1978? Up to 1942, the courts in India had followed the law as laid down
in Brinsmead and Merryweather cases, but in some cases, the courts expressed doubts about its
applicability in India.

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The Supreme court of India, in Khushro S. Gandhi v. Guzdar[4], refused to follow the common
law of England. The fact was that in the suit for damages for defamation, one of the defendants had
tendered an apology to the plaintiff and the court had passed a compromise decree between the
plaintiff and the defendants who tendered an apology. When the plaintiff wanted to continue the suit
against the other defendants, it was contended by the defendants that the compromise decree released
all other defendants from their liability. Rejecting the contentions of the defendants, the court held
that in the case of joint tortfeasors, in order to release all joint tortfeasors, the plaintiff must receive
full satisfaction or which the law must consider as such from a tortfeasor before other joint
tortfeasors can rely on accord and satisfaction. The rule which is in consonance with justice, equity
and good conscience will convince only that type of liability of tortfeasors as joint and several.
In the light of the above decision, the recent trend of the Indian court is to follow or adopt common
law of England or the law enacted by the British Parliament if it is in consonance with the principles
of equity, justice and good conscience under the Indian Constitution.
When does the liability of joint tortfeasors arise?

Liability of joint tortfeasors arises in three circumstances and they are:

Agency
When one person is authorized by another person to do work on his behalf then any tort committed
by that person, the agent then principal who is authorizing the work will jointly and independently be
held liable. When a tort is committed by an agency then both principal and agent are considered as
joint tortfeasors. When any partner commits tort during the course of the business, then all other
partners are also considered as joint tortfeasors.

Vicarious Liability
When a person is liable for the tort committed by another person under special circumstances, the
liability is joint and both are joint-tortfeasors. Thus, when a servant commits a tort in the course of
employment, the master can be made liable along with the servant as a joint-tortfeasors.

Joint Action
Where two or more persons join together for common action then all the persons are jointly and
severally liable for the tort committed in the course of action.
Tortfeasors Defenses
An individual or entity accused of committing a civil mistake basically has three options for
defending their actions. These tortfeasor defenses include:

Consent and Waiver

A tortfeasor (defendant) may defend his position in a civil lawsuit if the accuser (defendant) has been
explicitly warned of the risk or danger of engaging in the harmful activity. This defense is referred to
as the legal maxim volenti non fit injuries, which means ―no injury is done to a consenting person.‖
This tortfeasor defense usually relies on signed waivers of liability

Comparative Negligence
In comparative negligence, tortfeasors may try to defend themselves by claiming that the
complainant contributed to his own damage by committing acts of recklessness or negligence. A
similar concept called ―contributory negligence‖ often results in the court assigning a percentage of
fault to each party, which ultimately dictates the percentage of financial responsibility for which each
party will be held accountable.

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Illegality
Where at the time of the injury, the complainant committed an illegal act for which he was seeking
compensation, the defendant‘s liability may be reduced, or entirely eliminated.

Remedies
The law of contribution says that Y claims to share the liability to X with others was based on the
fact that they were subject to a common liability to X, whether equally with Y or not. The words in
respect of the same damage emphasized the need for one loss to be allocated among those liable. The
amount of the contribution recoverable from any person shall be fair and equitable, taking into
account the extent of his responsibility for the damage. The court may exempt any person from the
liability to make a contribution or direct that any person‘s contribution amounts to full compensation.
The plaintiff fell down a hole which had been left uncovered by the negligence of a contractor
employed by the defendant to carry out certain works on the premises on which the plaintiff had
come. It was held that the contractor who was added as a third person to the suit was liable to
contribute one-half of the damages.

Criticism of Joint Tortfeasors

Joint and multiple liability doctrine is criticized because it can result in severe inequities. For
example, a defendant who has only 10 percent responsibility for an accident that is jointly and
severally liable with a defendant who is 90 percent at fault for an accident may have to bear the full
amount of damage financial burden, even though his or her mistake was quite minor.
Conclusion
Joint and multiple liabilities is a system that protects the complainants when one or more wrongdoers
are unable to pay damages owed to the complainant. However, this can lead to disproportionate and
unexpected results for tortfeasors.

What is Defamation?
Introduction
Defamation as the meaning of the word suggests is an injury to the reputation of a
person resulting from a statement which is false. A man‘s reputation is treated as his property and if
any person poses damage to property he is liable under the law, similarly, a person injuring the
reputation of a person is also liable under the law. Defamation is defined in section 499 of Indian
Penal Code 1860 and section 500 provides that a person committing an offense under this section is
liable with simple imprisonment for a term of 2 years or fine or with both.

Essentials of Defamation
A. The statement must be defamatory
The very first essential of the offense of defamation is that the statement must be defamatory i.e.
which tends to lower the reputation of the plaintiff. The test to check if a particular statement is
defamatory or not will depend upon how the right thinking members of society are likely to
take it. Further, a person cannot take a defense that the statement was not intended to be defamatory,
although it caused a feeling of hatred, contempt or dislike.
In the Case of Ram Jethmalani v. Subramanian Swamy court held Dr. Swamy to be liable for
defaming Mr. Jethmalani by saying that he received money from a banned organization to protect the
then CM of Tamil Nadu in the case of the assassination of Rajiv Gandhi. In another recent case of
Arun Jaitley v Arvind Kejriwal, the court held the statement said by Arvind Kejriwal and his 5 other
leaders to be defamatory. However, the matter was finally disclosed after all the defendants
apologized for their actions.
Illustration

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A publishes an advertisement in a local newspaper stating false information that the company of B
has committed fraud of Rs 20,00,000. Now, this statement will amount to defamation as this
newspaper will be read by many readers and will surely injure the reputation of B‘s company.
However, it is to be noted that mere hasty expression spoken in anger, or vulgar abuse to which
no hearer would attribute any set purpose to injure the character would not amount to
defaming a person.

Illustration
If A an employer scolds his employee B for not coming on time in front of the whole staff, then B
cannot take the plea that A has injured the reputation of B.
B. The statement must refer to the plaintiff
In an action for defamation, the plaintiff has to prove that the statement of which he Complains
referred to him, it will be 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
him, the defendant will then be liable
Illustration- If A, a bank publishes a notice to all its branches to not give the loan to any person from
xyz as the people of xyz are more often repeated defaulters. Now due to this B, a resident of xyz has
suffered a huge loss. Now B can hold A liable for defaming him although the bank did not directly
focus on him.
In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen Court held the defendants liable for
publishing a statement without any intention to defame the defendants. The statement mentioned that
a particular person carrying business of Agarbathis to Ceylon has been arrested for the offense of
smuggling. The plaintiff was also one of the person carrying on a similar business, and as a result of
this statement his reputation also severely damaged.

C. The statement must be published

Publication of defamatory statement to some person other than the person defamed is a most
important aspect for making any person liable, and unless that is done, no action for defamation will
lie.
However, if a third person wrongfully reads a letter meant for the plaintiff, then the defendant likely
to be liable. But if the defamatory letter sent to the plaintiff is likely to be read by somebody else,
there will be a valid publication.
In the case of Mahendra Ram v. Harnandan prasad the defendant was held liable for sending a
defamatory letter to plaintiff written in Urdu knowing that the plaintiff did not knew Urdu and the
letter will very likely be read over by another person.

Forms of Defamation
1. Slander– It is the publication of a defamatory statement in a transient form For
example- Defaming a person by way of words or gestures.
2. Libel– It is the representation made in some permanent form.
For example- Defaming a person through a representation made in some permanent form like
writing, printing etc.

English law on libel and slander

Under English criminal law, libel is treated as a crime but slander is not. Slander is only a civil
wrong. This distinction between libel and slander is mainly on two reasons-
1. Under Criminal law, only libel has been recognized as an offense. Slander is no offense.
2. Under the law of torts, slander is actionable, except in few cases where special damage has to
be proved. Libel is always actionable i.e. without any proof. However, slander is also
actionable in the following 4 cases:

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  Imputation of a criminal offense to the plaintiff.
 Imputation of an infectious disease to the plaintiff which has the effect of preventing others
from associating with the plaintiff. Example A makes a statement in his office that his
colleague is suffering from AIDS. He can here be liable for defaming his colleague.
 The imputation that a person is incompetent, dishonest or unfit in regard to the office,
profession, trade or business carried on by him.
 Imputation of unchastity or adultery to any woman or girl.

Indian law on Libel and Slander

Unlike English law, Indian law does not make any distinction between libel and slander and both are
treated as criminal offenses under section 499 IPC. In the case of Hirabai Jehangir v.
Dinshawdulji the Bombay and Madras high court both held that no distinction needs to be made
between treating libel and slander as criminal offenses.

Innuendo
A statement is prima facie defamatory when its natural and obvious meaning leads to that
conclusion. Sometimes it may happen that the statement was prima facie innocent but because of
some secondary meaning, it may be considered to be defamatory. For this secondary instance
plaintiff must prove the secondary meaning i.e. innuendo which makes the statement defamatory.
Illustrations
Z makes a statement that X is an honest man and he never stole my watch. Now this statement is at
first instance may be innocent, but it can be defamatory if the person to whom it was made, interprets
from this that X is a dishonest man having stolen the watch.
Defamation of class of persons
When particular words spoken are referred to a group of individuals or a class of persons, then no
single person of that group or class can sue unless he proves that the words could reasonably be
considered to referring him.
Illustration- If a person wrote that all doctors were thieves, then no particular doctor could sue him
unless there was something that pointed out that the person actually intended to defame him
individually.
This situation will be different if the person wrote that all doctors of Ganga ram hospital are thieves
and then doctors of Ganga ram hospital can sue him for defaming them.

Communication between husband and wife

In the eyes of law, both 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 and will not come within the
purview of section 499. Section 122 of the Indian Evidence Act 1872 deals with privileged
communications between husband and wife and makes them out of the scope of section 499 except
in suits between married persons, or in a proceeding in which one married person is
prosecuted for any crime committed against the other.
In a leading case of T.J. Ponnen v. M.C Verghese the court held that the letter from husband to his
wife containing defamatory matter concerning the father-in-law will not amount to defamation. It
will very much be covered within the scope of privileged communications between husband and wife
as laid in section 122 of the Indian Evidence Act 1872.
Defenses to defamation

The defenses to an action for defamation are

1. Justification of truth
2. Fair comment
3. Privilege

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Justification of truth
In a civil action for defamation, the truth of the defamatory matter is a complete defense and the
reason for this is that ― Law will not permit a man to recover damages for something being true about
him ―.
Under criminal law on the other hand merely proving that the statement was true is not a good
defense and besides this, the defendant has to show that it was made for public good also.
If the defendant is not able to prove the truth of the facts, the defense cannot be availed. In the case
of Radheyshyam Tiwari v. Eknath court held the defendants for publishing defamatory matter
against the defendants. Later the defendants were not able to prove that the facts published by him
were true and, therefore he was held liable.

Fair comment
Making a fair comment on matters public interest is a valid defense to an action for defamation. For
this, the following must be proved
 It must be a comment i.e, an expression of opinion rather than an assertion of fact
For example, If X says that A has been guilty of breach of trust and therefore he is a dishonest man.
Here the latter words are a comment on the former. But if A did not commit any breach of trust and
X still says to him as a dishonest man. Then it will not be a comment and will amount to an assertion
of fact.
 The comment must be fair
The comment should be fair i.e. should not be based upon untrue facts.
For example, X publishes serious allegations of bribery against Y in a newspaper. Later X is not able
to prove the truthness of these allegations and therefore his comment will not amount to fair
comment.
 The matter commented upon must be of public interest-
The matter on which the defendant has commented must be of public interest. Matters like
administration of government departments, courts, ministers, public meetings, textbooks, etc are
considered to be matters of public interest.

Privilege
As the word suggests itself i.e. giving special status. These special occasions when the law
recognizes that the right of free speech outweighs the plaintiffs right to defamation and a defamatory
statement made on such occasion is not actionable. Privileges are of two types.
1. Absolute privileges– In matters of these complete immunity is given to person speaking and no
action for defamation can lie against him. It includes 3 aspects
 Parliamentary proceedings– Article 105(2) of the Indian constitution gives immunity to
parliamentarians to speak anything during the course of business of parliament and no action
would lie against them.
 Judicial proceedings– This protection has been given to judges under judicial officers
protection act of 1850. It also extends to counsels, witnesses, and parties to a suit.
2. Qualified privilege– This privilege is also available and under this, it is necessary that the
statement must have been made without a malice i.e a wrongful intention.

For example, A, a shopkeeper, says to B, who manages his business, ― Sell nothing to Z unless he
pays you ready money, as I am doubtful of his honesty. Now A will fall under this exception if he
has made his imputation on Z in good faith for the protection of his own interest.

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Conclusion
After analyzing all the key aspects of defamation as laid in section 499 IPC, we have found that the
essence of defamation lies in the injury to the reputation of a person. And for this injury, he can very
much sue the defendants. Defamation is of two types libel and slander. Both are considered as
criminal offenses in India. There are certain exceptions to this known as privilege.

Application of Tort law in Domestic Disputes

Domestic Relations is an evolving area of Tort Law dealing with the internal functions of a family.
The evolution of Domestic Relations Tort has not only influenced the manner in which family
members can collect as a result of tortious behavior for damages or interference with the family unit
itself; it has influenced the manner in which husbands, wives, kids, and legal guardians are seen as
legal entities.
Children and wives were originally regarded as chattels under common law and worked under the
proprietary rights of a man. Several advances in family law in the 1900s provided for women and
children‘s legal rights to act as separate legal entities from their husbands/fathers.
Husband and Wife
In the case of husband and wife, the issue of personal liability can be dealt with two scenarios. First,
the husband‘s liability for wife‘s torts and Second, the action between the husband and wife.

i) Husband‟s Liability for Wife‟s Torts

Under common law, a married woman could not sue any person for any tort in the earlier phase of
development of tort, unless and until her husband joined her as a party to the plaintiff. In addition, a
wife could not be sued without making her husband a defendant‘s party.
These anomalies were removed by the legislative acts, i.e., The Married Women‘s Property Act,
1882, and the Law Reform (Married Women and Tortfeasors) Act, 1935. After these acts, a wife
may sue or be charged without making her husband a joint party to the suit.
However, if the husband and wife are joint tortfeasors, then they can be made jointly liable.
 Drinkwater v. Kimber, (1952) 2 Q.B. 281
This case, explains the point. There a lady was injured because of the combined negligence from her
husband and a third party. She recovered the full amount of compensation from the third party. The
third-party could not recover any contribution from the husband as the husband could not be made
liable towards his wife for personal injuries.
Regarding the contribution between the wrongdoers, the original rule in England was known as the
rule in Merryweather v. Nixon. It stated that in the case of joint tortfeasors, the one tort-feasor who
paid the full amount of damages for the wrongdoing could not claim contribution from the others.
The Law Reform (Married Women and Tortfeasors) Act, 1953 abolished this disability and enabled
the joint tortfeasors to recover their contribution. The Law Reform (Husband and Wife) Act, 1962
has changed further and in this regard, the law has changed to the effect that when a spouse sues a
third person, the latter can claim contribution from the other spouse who was a joint tort-feasor.

ii) Action between Spouses

At common law, there could be no action between husband and wife for tort. If the other spouse
committed a tort, neither the wife could sue her husband nor the husband could sue his wife. The
change has been brought up by the Married Women‘s Property Act,1882 and permitted the married
woman to sue her husband in tort for protection and security of her property. The property includes
chose in action which is given in Section 24 of Married Women‘s Property Act, 1882.
As a wife could sue her husband only for the protection and security of her property, she could not
sue her husband if he caused her personal injuries. Thus, if the husband damages her watch, she
could sue for the same but if negligently fractured her legs, she could not bring any action for the
same. The husband has no right for an action for any kind of harm caused by his wife to him.

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  Curtis v. Wilcox [1948] 2 K.B. 474 (C.A.)
The defendant by his negligent driving injured the plaintiff, a passenger in his car. After the issue of
her writ, claiming, inter alia, damages for pain and suffering, but before the hearing of the action, the
plaintiff married the defendant. The defendant, in substance the husband‘s insurance company,
pleaded that the claim for general damages was barred by the marriage.
Oliver J. held that he was bound by the judgment of McCardie J. in Gottliffe v. Edelston [1930] 2
K.B. 378, and disallowed the claim for general damages. The Courts of Appeal (Scott, Wrottesely
L.JJ., Wynn-Parry J.) in a considered judgment per Wynn-Parry J., allowed the appeal and
overruled Gottliffe v. Edelston. They agreed with Mccardie J.‟s view that a thing in action includes
a right of action in tort, but they dissented from his decision that ‗thing in action‘ as used to define
separate property in the Married Women‘s Property Act, 1882, Section 24, was used in a limited
sense. Accordingly, a wife is now entitled to sue her husband for a purely personal antenuptial tort.
 Broom v. Morgan (1953) 1 Q.B. 597
In this case, it was held that if a husband committed a tort against his wife in the course of his
employment of his master, the master was liable for the same. DENNING L.J. observed: ―If the
servant is immune from an action at the suit of the injured party owing to some positive rule of law,
nevertheless the master is not thereby absolved. The master‘s liability is his own liability and
remains on him, notwithstanding the immunity of the servant. The rule prohibiting action between
spouses has been abolished by the Law Reform (Husband and Wife) Act, 1962. Now, the husband
and wife can sue each other as if they are unmarried. The Act, however, places a restriction on the
action during the marriage by one spouse against another and the court has been given a power to
stay the action if it appears that no substantial benefit will accrue to either party from the
proceedings, or the case can be more conveniently disposed of under Section 17 of the Married
Women‘s Property Act, 1882. Under Indian law, personal capacity to sue and be sued in tort between
husband and wife is governed by their personal laws, be they Hindus, Sikhs, Jains or Muslims. For
Christians, the Married Women‘s Property Act, 1874, removed various anomalies.
Furthermore, the Indian Constitution removes all anomalies of marital status and personal capacity
present in common law. Article 14 embodies a guarantee against arbitrariness and unreasonableness,
taking into account the case of Ajay Hasia v. Khalid Mujib (1983).

Parental and Quasi-parental Authority

Parents and persons in loco parentis have a right to administer punishment on a child to prevent him
from doing mischief to himself and others. The law is that a parent, teacher, or other person having
lawful control or charge of a child or young person is allowed to administer the punishment on him.
Parents are presumed to delegate their authority to the teacher when a child is sent to the school.
Such an authority warrants the use of reasonable and moderate punishment only and, therefore, if
there is excessive use of force, the defendant may be liable for assault, battery or false imprisonment,
as the case may be.
In England, as per Section 1 (7), Child and Young Person‘s Act, 1933 a parent, a teacher, or other
person having lawful control or charge of a child or young person is allowed to administer the
punishment on him.
 Cleary v. Booth, (1893) 1 Q.B. 465

Facts:
Booth (Defendant), a school headmaster, administered corporal punishment on two boys after
learning that they had fought on the way to school. The defendant was charged with assault and
battery and convicted for it. He appealed.

42
Held:
The authority of a teacher to correct his students is not limited only to the wrongs which the student
may commit upon the school premises but may also extend to the wrongs done by him outside the
school, for ―there is not much opportunity for a boy to exhibit his moral conduct while in school
under the eye of the master, the opportunity is while he is at play or outside the school‖.
There is no question that, while at home, a child is under a parent‘s authority. It is also clear that
while at school, a child is under the head master‘s authority. The question is under what authority the
child is when he was on his way from home to school. Likely, the child may be said to be under the
headmaster‘s authority through the parent‘s delegated duty. In that case, if necessary, the headmaster
has the right to inflict punishment on the child in order to correctly raise the child. The authority of
the headmaster extends not only to acts performed by children while they are at school but also on
the way going to and fro from school to home. Here, the two boys were on their way to school when
they are engaged in fighting.

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Specific Restitution of Property for Tort Claims
Meaning of the term Restitution
Restitution means the return of objects that were lost or stolen or a payment made for a loss or
damage. Restitution can either be a legal remedy or it can be an equitable remedy. This depends on
the claim made by the plaintiff and the nature of the sought remedies. Restitution generally is an
equitable remedy when the property or the money which is wrongfully in the possession of the
defendants can be traced In such cases restitution is in the form of a constructive trust or equitable
lien.

Law of Restitution
The law of restitution is the regulation of profits-based recovery or restoration. It has to be in contrast
with the law of compensation, which is the law of loss-primarily based recovery. When a court
orders-
 Restitution- it orders the defendant to surrender the profits or gain to the claimant.
 Repayment- it orders the defendant to pay the claimant for his or her loss.

Restitution according to American Jurisprudence

In the 2nd edition notes the term restitution was used to denote the restoration of or the return of a
thing or condition in the earlier common law. In modern legal usage, the meaning of the term is
extended to returning something back to its rightful owner, returning to the status quo,
reimbursement, compensation, indemnification, reparation for the benefits derived from or the loss
for injury caused to another person.
Thus the word implies the relinquishment of a profit or benefit or the return of money or property
that has been obtained through an improper means to the person by whom the property has been
taken.

Specific Restitution of Property

The third kind of judicial remedy is the specific restitution of property. It is granted where the
plaintiff has been wrongly dispossessed of his lands and goods. Thus, a person who is wrongfully
dispossessed of immovable property, or of some specific movable property, is entitled to recover
such property. When one is wrongfully dispossessed of his movable or immovable assets, the court
may order that the specific belongings must be restored back to the plaintiff.
Illustration: Action for ejectment, the recovery of chattels with the aid of an action for detinue
etc. According to section 6 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed
of immovable assets is entitled to get better the immovable assets. According to section 7 of the
Specific Relief Act, 1963 someone who is wrongfully dispossessed of movable assets is entitled to
recover the movable property.

Restitutionary Remedies: These are also meant to restore the plaintiff to a position of ―wholeness‖,
as close as possible to their state before the tort occurred. These can include:
 Restitutionary damages: These are similar to damages, except that they are calculated based
on the tortfeasor‘s gain rather than the plaintiff‘s losses.
 Replevin: Replevin allows the victim to recover personal property that they may have lost due
to the tort. For example, they may recover property that was stolen. Replevin can be coupled
with legal damages in some cases.
 Ejectment: This is where the court ejects a person who is wrongfully staying on real property
owned by the plaintiff. This is common in instances of continuing trespass.
 Property Lien: If the defendant cannot afford to pay damages, a judge may place a lien on
their real property, sell the property, and forward the proceeds to the tort victim.

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Restitutionary Remedies
These are also intended to repair the plaintiff to a position of ―wholeness‖, as closely as possible to
their state before the tort befell. These include-
 Restitutionary damages: These are similar to damages, besides that they may be calculated
based at the tortfeasor‘s advantage in preference to the plaintiff‘s losses.
 Replevin: Replevin lets in the sufferer to recover private belongings that they will have
misplaced due to the tort.
Example- a person may recover assets that were stolen. Replevin may be coupled with legal damages
in a few instances.
 Ejectment: This is in which the court ejects someone who is wrongfully staying on actual
belongings owned with the aid of the plaintiff. This is common in times of continuing
trespass.
 Property Lien: If the defendant can‘t find the money for to pay damages, a judge may place a
lien on their actual assets, sell the belongings, and ahead of the proceeds to the tort sufferer.

Forms of action in English Law

Under the English law, there are three different classes of action:
 Real
 Personal
 Mixed
In real actions, the plaintiff claims his right to recover lands, tenements and hereditaments. In
personal actions, the plaintiff claims a debt, or sought to recover a chattel, or claimed damages for
injury done to his person or property. Mixed actions partake of the nature of both.
The most common personal actions are- debt, covenant, assumpsit, trespass the case, detinue,
replevin and trover.
 Detinue is the form of action for the recovery of specific goods wrongfully detained, or their
value, and also damages occasioned by their detention.
 Replevin is the action to recover specific goods which have either been wrongfully distrained
from the plaintiff or had been wrongfully taken out of his possession.
 An action of trover was originally the remedy to recover damages against the person who had
found goods and refused to deliver them up on demand to the plaintiff. In course of time, it
became the form of action where the plaintiff sought to recover damages from the defendant
who had converted the plaintiff‘s good to his own use and came to be known as an action of
conversion.

Types of Disgorgement Legal Remedies

Restitution is a legal remedy where a particular property at issue cannot be particularly
identified. Example- The plaintiff is seeking a judgment imposing personal liability to pay a sum of
money.
Identified types of disgorgement legal remedies are-
 Unjust enrichment
 Quantum meruit
These kinds of damages restore benefits conferred to the non-breaching party and the plaintiff
receives the value of whatever that was conferred to the defendant when there existed a contract. The
two general limits to recovery are:
(i)- The contract needs to be completely breached.
(ii)- If restitution damage exceeds then damages will be capped at the contract price.

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Restitution for Wrongs
Illustration- If A commits a wrong against another person B and the latter sues A for the wrong, then
A will be liable to compensate B for the loss. If B demands compensation then the court would
measure the loss due to A‘s action by reference and compensation would be awarded. But, in certain
situations, B may seek restitution over compensation. If the profit made by A‘s wrongful action is
greater than the loss suffered by B then restitution would be in B‘s interest.
Whether a claimant can or cannot seek restitution for a wrong depends on the particular wrong in
question to a large extent. Example- Restitution for breach of fiduciary duty in English law is widely
available but restitution for breach of contract is comparatively exceptional. The wrong could be of
any one of the following types:
 Criminal offences
 Breach of contract
 Statutory tort
 Common law tort
 Equitable wrong

The law responds to each and everyone of them by implementing an obligation to pay compensatory
damages. Restitution for wrongs is the issue which deals with the problem of when precisely the law
responds through enforcing a responsibility to make restitution.
Example
In Attorney General v Blake, an English court was facing the claim in which the defendant had made
a profit someplace in the location of £60,000 as a result of breach of contract with the claimant. The
claimant was entitled to claim compensatory damages, however he had suffered very little loss. It
was consequently decided to seek restitution for the breach of agreement. The claimant won the case
and the defendant had to pay his profits to the claimant. However, the court made a point that the
ordinary legal response of a breached contract is awarding compensation. An order to make
restitution was said to be available only in exceptional circumstances.

Difference Between Restitution and Civil Damages

Restitution Civil Damages
It is ordered after the offender has been It is ordered after the winning of a lawsuit in a civil
found guilty by the criminal court. court.
Damages imposed just to punish the defendant can be
Victims cannot collect twice for the
claimed. Example- payment for pain and suffering,
same loss.
punitive damages.
Even when the offender has been
Civil damages can include losses not covered by
ordered to pay, a victim can sue an
restitution.
offender restitution.

Difference Between Restitution and Compensation

Restitution Compensation
Restitution is court-ordered payment from It is a state government program that pays many of
a convicted offender. the out-of-pocket expenses of victims
The victim is required to report the offense within a
It can only be ordered in cases where
certain amount of time to be eligible for
someone has been convicted.
compensation.
It can be ordered for a wider variety of It covers medical expenses, most cover counseling,
losses, including property loss. and very few cover any property loss.

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Courts may order full or partial restitution
When courts order restitution, they look no longer only at the sufferer‘s losses but additionally at the
culprit‘s capability to pay. In some states, the court can also reduce the whole amount of restitution
ordered if the offender is not likely on the way to pay that quantity. In different states, courts will
order the culprit to pay for the overall amount of the loss, however then set a price agenda based
totally at the offender‘s finances, which may also only be a minimal amount in per month.

Collecting Restitution
Collection of restitution is regularly restrained with the wrongdoer‘s capability to pay. As a result,
many victims wait years before they acquire any restitution, and they will by no means acquire the
full amount of restitution ordered. Collection additionally relies upon on enforcement of the
courtroom‘s order of restitution, either by the criminal justice system or the victim. There are many
laws and methods used to make certain the wrongdoer pays as ordered.
For instance, in which payment of restitution is made a circumstance of probation or parole, the
probation or parole officer ought to display whether bills are being made on time. The sufferer might
also assist to provide this data to the probation or parole officer. If the culprit is set to be released
from probation or parole, however has now not paid restitution as ordered, this has to be conveyed to
the court or parole board. Victims who have now not received restitution as ordered need to ask the
probation or parole officer how this information can be furnished to the court or parole board. In
some states, probation or parole can be prolonged when the offender has willfully failed to pay
restitution.
In those states with prison work programs, restitution payments are generally collected out of the
wages of these programs. Some states collect restitution from state profits tax refunds, prisoner
money accounts, lottery winnings, or damage awards from proceedings towards the jail.

Where the perpetrator has not paid restitution as ordered-has ―defaulted‖ in charge-restitution
frequently can be collected by using the identical methods used to put into effect other court
judgments, consisting of attachments of belongings or garnishment of wages. In some states, the
sufferer is authorized to take these moves; in different states, enforcement is as much as the
prosecutor, the court, or another official.
Many states provide that restitution orders become civil judgments. This expands the potential of
sufferers to collect restitution and also manner the orders can live in impact for many years, usually
ten to twenty years. In many jurisdictions, civil judgments may be renewed, with a view to stay in
impact even longer. During that point, the wrongdoer‘s financial circumstances may additionally
change: he or she may also have inherited belongings, won a prison judgment, or grow to be hired.
Depending on the state, the civil judgment can be enforceable without delay, or enforceable while
the culprit defaults on payment, or enforceable after the criminal justice method is completed and the
wrongdoer has been released from probation, prison, or parole. A victim may need to hire a legal
professional attorney to help enforce the civil judgment.

The Tort of Nuisance

Introduction
A person in possession of a property is entitled to its undisturbed enjoyment as per law. However, if
someone else‘s improper use or enjoyment in his property ends up resulting into an unlawful
interference with his enjoyment or use of that property or of some of the rights over it, or in
connection with it, we can say that the tort of nuisance has occurred.
The word ―nuisance‖ has been derived from the Old French word ―nuire‖ which means ―to cause
harm, or to hurt, or to annoy‖. The Latin word for nuisance is ―nocere‖ which means ―to cause
harm‖.

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Nuisance is an injury to the right of a person‘s possession of his property to undisturbed enjoyment
of it and results from an improper usage by another individual.

Definitions by Various thinkers

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of
another, or of the lands, one which doesn‘t amount to trespass.
According to Salmond, nuisance consists in causing or allowing to cause without lawful
justification, the escape of any deleterious thing from one‘s land or from anywhere into land in
possession of the plaintiff, such as water, smoke, gas, heat, electricity, etc.

Essential elements of Nuisance

Wrongful act
Any act which is done with the intention to cause the infringement of the legal rights of another is
considered to be a wrongful act.
Damage or loss or annoyance caused to another individual.
Damage or loss or annoyance must be such which the law should consider as a substantial material
for the claim.

Kinds of Nuisance
1. Public Nuisance
The Indian Penal code defines nuisance as an act which causes any common injury, danger or
annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which must
necessarily cause injury, obstruction, danger, or annoyance to the people who may have occasion to
use any public right.
Public nuisance affects the society and the people living in it at large, or some considerable portion
of the society and it affects the rights which the members of the society might enjoy over the
property. The acts which seriously affects or interferes with the health, safety or comfort of the
general public is a public nuisance.
Instances where an individual may have a private right of action in respect to a public nuisance:
 He must show the existence of any personal injury which is of a higher degree than the rest of
the public.
 Such an injury has to be direct and not just a consequential injury.
 The injury must be shown to have a huge effect.

2. Private Nuisance
Private Nuisance is that kind of nuisance in which a person‘s use or enjoyment of his property is
ruined by another. It may also injuriously affect the owner of the property by physically injuring his
property or by affecting the enjoyment of the property. Unlike public nuisance, in private nuisance,
an individual‘s usage or enjoyment of property is ruined as distinguished from the public or society
at large. The remedy for private nuisance is a civil action for damages or an injunction or both.
Elements which constitute a private nuisance
 The interference must be unreasonable or unlawful. It is meant that the act should not be
justifiable in the eyes of the law and should be by an act which no reasonable man would do.
 Such interference has to be with the use or enjoyment of land, or of some rights over the
property, or it should be in connection with the property or physical discomfort.
 There should be seeable damage to the property or with the enjoyment of the property in order
to constitute a private nuisance.

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Case Law: Rose v. Miles(1815) 4M &S. 101
The defendant had wrongfully obstructed a public navigable creek which obstructed the defendant
from transporting his goods through the creek due to which he had to transport his good through land
because of which he suffered extra costs in the transportation. It was held that the act of the
defendant had caused a public nuisance as the plaintiff successfully proved that he had incurred loss
over other members of the society and this he had a right of action against the defendant.

A nuisance may be in respect of either property or physical discomfort

1. Property
In the case of a nuisance with respect to the property, any sensible injury to the property will be
enough to support an action for the damages.
2. Physical discomfort
In a suit of nuisance arising out of physical discomfort, there are two essential conditions required.
 In excess of the natural and ordinary course of enjoyment of the property.
The usage by the third party should be of out of the natural course of enjoyment from one party.
 Interfering with the ordinary conduct of human existence.
The discomfort should be of such a degree that it would affect an individual in the locality and
people would not be able to put up or tolerate with the enjoyment.
Case Law: Radhey Shyam v. Gur Prasad AIR 1978 All 86
Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals
for permanent injunction restraining the defendant from installing and running a flour mill in the
premises occupied by the defendant. Gur Prasad Saxena filed another suit against Radhey Shyam and
five other individuals for a permanent injunction from running and continuing to run an oil expeller
plant. The plaintiff has alleged that the mill was causing a lot of noise which in turn was affecting the
health of the plaintiff. It was held that by running a flour mill in a residential area, the defendant was
causing a nuisance to the plaintiff and affecting his health severely.

What are the defenses available to Nuisance?

There are many valid defenses available to an action for tort, these are:
1. Prescription
 A prescription is a title acquired by use and time and which is allowed by the law, a person
claims any property because his ancestors have had the possession of the property by law.
 Prescription is a special kind of defence, as, if a nuisance has been peacefully and openly been
going on without any kind of interruption then the defence of prescription is available to the
party. On the expiration of this term of twenty years, the nuisance becomes legalized as if it
had been authorized in its commencement by a grant from the owner of the land.
 The essence of prescription is explained in Section 26 of the limitations act and Section 15 of
the Easements Act.
There are three essentials to establish a person‘s right by prescription, these are
1. Use or enjoyment of the property: The use or enjoyment of the property must be acquired
by the individual by law and the use or enjoyment must be done openly and peacefully.
2. Identity of the thing/property enjoyed: The individual should be aware of the identity of
thing or property which he or she is peacefully or publically enjoying.
3. It should be unfavourable to the rights of another individual: The use or enjoyment of the
thing or property should be of such a nature that it should be affecting the rights of another
individual thus causing a nuisance and even after knowing of such a nuisance being caused
there must‘ve been no action taken against the person causing it for at least twenty years.

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2. Statutory authority
 When a statute authorizes the doing of a particular act or the use of land in a way, all the
remedies whether by action or indictment or charge, are taken away. Provided that every
necessary reasonable precaution has been taken.
 The statutory authority may be either absolute or conditional.
 When there is an absolute authority, the statue allows the act and it is not necessary that the
act must cause a nuisance or any other form of injury.
 Whereas in the case where there is a conditional authority, the state allows the act to be done
only if it can be done without any causation of nuisance or any other form of injury.

What are the remedies for nuisance?

There are three kinds of remedies available in the case of a nuisance, these are:
1. Injunction
An injunction is a judicial order restraining a person from doing or continuing an act which might be
threatening or invading the legal rights of another. It may be in the form of a temporary injunction
which is granted on for a limited period of time which may get reversed or confirmed. If it is
confirmed, then it takes the form of a permanent injunction.

2. Damages
The damages may be offered in terms of compensation to the aggrieved party, these could be
nominal damages. The damages to be paid to the aggrieved party is decided by the statue and the
purpose of the damages is not just compensating the individual who has suffered but also making the
defendant realise his mistakes and deter him from repeating the same wrong done by him.

3. Abatement
Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any
legal proceedings. This kind of remedy is not favoured by the law. But is available under certain
circumstances.
This privilege must be exercised within a reasonable time and usually requires notice to the
defendant and his failure to act. Reasonable for may be used to employ the abatement, and the
plaintiff will be liable if his actions go beyond reasonable measures.
Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land which overtime
outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the tree which is
affect his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck, land without his
permission, and chops off the entire tree which then falls on the land of Beck, then Ace shall be in
the wrong here as his action taken would be beyond reasonableness.
Nuisance and Trespass – Distinguished
1. Trespass, on one hand, is the direct physical interference with the plaintiff‘s possession of the
property through some material or tangible object whereas, in the case of a nuisance, it is an
injury to some right of the possession of the property but not the possession itself.
2. Trespass is actionable per se (actions which do not require allegations or proof), whereas, in
the case of a nuisance, only the proof of actual damage to the property is required.
Example: Simply entering on another individual‘s property without the owner‘s consent and without
causing him any injury would be trespass whereas if there is an injury to the property of another or
any interference with his enjoyment of the property, then it will amount to a nuisance.
3. If the interference with the use of the property is direct, then the wrong is trespass. Whereas if the
interference with the use or enjoyment of the property is consequential then it will amount to a
nuisance.

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Example: Planting a tree on someone else‘s land would amount to trespass whereas if a person
plants a tree on their own land which then outgrows to the land of another would amount to a
nuisance.
Case Law: Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandal AIR 1978 Guj 13,
(1977) GLR 424.
In this case, the plaintiff had sued the defendant for a permanent injunction to restrain the defendant
from showing a movie named ―Jai Santoshi Maa‖. It was said by the plaintiff that the contents of the
movie significantly hurt the religious sentiments of the people belonging to the Hindu community as
well as the religious sentiments of the plaintiff as the movie showed Hindu Goddess‘ Laxmi, Parvati,
and Saraswati, to be jealous of one another and were ridiculed in the film. It was held that hurt to
religious sentiments was not an actionable wrong.

Conclusion
The concept of nuisance arises commonly in everyone‘s daily life, in fact, the Indian courts have
borrowed quite a lot from the English principles as well as from the decisions of the common law
along with creating their own precedents. This has helped the concept of nuisance in the field of law
develop quite extensively and assures the fairness and well-being of all the parties which may be
involved such as in the case of Private nuisance, the party which is being affected, as well as, in the
case of public nuisance, where the society at large is being affected.

Trespass to Land and Dispossession

Meaning of Trespass
Black‘s Law Dictionary defines trespassing as an unlawful act committed against the person or
property of another person; in particular, unlawful entry into the real property of another person.
Trespass means the wrongful disturbance of possession of land or goods of another person. A person
who intentionally and without consent enters another person‘s property is a trespasser. It signifies an
infringement or infringement of a right.
Examples:
 Continuing Trespass
 Criminal Trespass
 Innocent Trespass
 Joint Trespass
Camden, LCJ said that ―By the laws of England, every invasion of private property, be it ever so
minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to
an action, though the damage be nothing.‖

Kinds of Trespass
There are two kinds of trespass:
 Trespass quare olasum fregit– this means the entry on another person‘s land.
 Trespass de bonis asportatis– this means the taking away of another person‘s goods.

Trespass to Land
Trespass to land stems from the dictum ―cuius est solum, eius est usque, and coelum et ad infernos‖–
meaning that anyone who owns the land owns it all the way up to heaven and down to hell.
Land is far more than merely the physical soil. Land ownership has been granted the rights to all
natural resources on the land. Land includes any buildings and fixtures attached to the ground like
houses, walls, standing crops, the ground itself, the airspace above and the ground below to a
reasonable height or depth in relation to the normal use of the land.

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In the case of trespass to land, the unlawful land infringement must be direct, intentional and
actionable in itself. The entry must be intentional in the sense that the trespasser intended to go onto
that particular land. The trespasser‘s intention to trespass is not at all necessary. Illustration: A
parachutist‘s entry into the land accidentally blown by the wind is unintentional and there is no
liability for trespass.

How is Trespass to Land committed?

Trespass to land may be committed in three situations. In each case, the entry must be without
justification. The cases are:

Entering the land of the plaintiff:

 In order to constitute a trespass, entry is essential.
 Entry must be without permission.
 The land must be in possession of the plaintiff, it may be actual or constructive.
 Entry must be voluntary which means not against a person‘s will or by force.
 Entry must be intentional.
If the defendant consciously enters a land that he believes is his own but that turns out to be the
plaintiff‘s land, he is still liable for trespass. It is irrelevant that the defendant made a reasonable
mistake and was not negligent.
Basely v. Clarkson [1]
When the defendant mowed his own land, he mistakenly crossed the boundary and mowed the land
of his neighbor, believing it was his own land. The defendant‘s plea of mistake in claiming trespass
to land failed because his act of cutting grass was intentional even though he made a mistake as to
where the boundary was. However, if the entry is proven to be involuntary then it is not a trespass.
Smith v. Stone [2]
If someone else throws a person on the land of someone else, i.e. his entry is unintentional then he
will not be liable. There is no act of entry by the defendant in such a situation. It is a general
presumption that a person who owns the surface of land owns all the underlying strata. Thus at the
instance of the owner of the surface, an entry beneath the surface at whatever depth is an actionable
trespass. But in some cases, it is possible that the underlying strata may be in the possession of a
different person.
Illustration: When a person who is not in possession of the surface holds mining rights: if the surface
of the land is in possession of A and the subsoil in possession of B, the surface entry will be an
infringement of A and the subsoil entry will be an infringement of B.
Note- Entering a land prior to the complete transfer of its title to the acquirer shall be considered a
trespass.
Public streets, including pavements, are primarily dedicated to public use for passage purposes and
may not be used for private residence, private business or as a prayer ground for a particular
community.

By staying on land having asked to leave or after any permission has come to an end:
If there remains a person who has legally entered another‘s land, he commits trespass after his right
of entry has ceased. His misconduct relates back to making his original entry tortuous, and he is
liable for damages, not just for the entry itself, but for all subsequent acts. This is referred to as
trespass ab initio and the abuse will make the original entry illegal.
Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath [3]
Although entry into the property may be legal, therefore, if possession continues even after
permission has been given, it may amount to trespass ab initio. The corresponding concept of
continuity of a civil mistake can be found in the Tort Law. Trespass in torts can be continued one.

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Again, if the entry was legal but is subsequently abused and continued after the permission has been
determined, the infringement may be ab initio.
Minister of Health v. Bellotti [4]
A licensee whose license has been terminated or is extinguished by expiry may be sued as a
trespasser if, upon request, he does not vacate and a reasonable time has elapsed.

Trespass by interference with the land of another :

Any interference with another‘s land is considered to be a constructive entry and trespass. Example-
throwing stones or materials over neighboring land, it may also be a gas or invisible fumes. Driving a
nail into a personʼs wall, placing anything against the plaintiffʼs wall, planting trees in plaintiffs land,
or placing any chattel upon the plaintiffs land is trespass by interference on the land of another
person. It was said in Abdul Gani v. Sadu Ram and Others [5] that discharge of filthy water from a
spout in the defendant‘s house on the plaintiff‘s land is trespass.

Difference between Trespass and Nuisance

Trespass Nuisance
By the nature of injury, if the injury is
If the injury is consequential, then it is Nuisance.
direct then it is Trespass.
Trespass is actionable per se. Nuisance is actionable only on proof of damage.
Trespass describes prohibited conduct. Nuisance describes a type of harm that is suffered.
Trespass requires direct entry into the Nuisance is indirect and can take place from outside the
property of the plaintiff. property of the plaintiff.
A person only in the direct possession
A person who is indirectly affected may sue.
(including tenant) of land can sue.
Illustration: If the roots of a tree planted on the
Illustration: Throwing stones on the
defendant‘s land undermine the foundation of neighbor ‟s
neighbor‘s land.
building then it is nuisance.

Aerial Trespass
The landowner has the right to the airspace above the surface ad infinitum. The ordinary rule is that
whoever has the solum, whoever has the site, is the owner of all up to the sky and down to the earth‘s
center. In modern times, the owner has the right to air and space above his land is limited to the
height required for the ordinary use and enjoyment of his land.
Kelsen v. Imperial Tobacco Co. Ltd. [6]
An advertising sign erected by the defendants over the plaintiff‘s single storey shop projected into
the airspace. The defendant argued that a superincumbent airspace invasion was not trespass, but a
nuisance alone. The projection into the airspace of the plaintiff was held to be a trespass and not a
mere nuisance, and a mandatory injunction was granted.
Bernstein v. Skyviews [7]
When Bernstein sued the defendants in trespass for taking aerial photographs from hundreds of
meters above the ground of his house, the issue of trespass into the airspace above the ground was in
question.
The Court held that at that height Bernstein had no reasonable use of airspace and the defendant was
not liable for trespass on that ground.
Indian Law of Aerial Trespass
Section 17 provides that no suit shall be brought in respect of trespass or nuisance, solely because of
the aircraft‘s flight over any property at a height above ground that is reasonable in view of wind,

53
weather and all the circumstances of the case, or solely because of the ordinary incidents of such
flight.
The law provides that anyone who flies to cause damage to a person or property may be punished
with six months‘ of imprisonment or a fine of Rs 1,000 or both.

Continuing Trespass
Every Continuance of Trespass is a fresh infringement and an action can be brought against it. The
continuation of day-to-day trespass is considered a separate trespass on each day in law. Illustration:
An action can be taken for the original trespass of placing some material on someone else‘s land and
another action to continue the deposited things.
Note: A recovery of damages in the first action, by way of satisfaction, does not operate as a
purchase of the right to continue the injury.

Trespass by Animals
Cattle trespass was ancient common law torture whereby the animal keeper was strictly liable for any
damage caused by the straying animal. Livestock keepers are responsible as if they have committed
the trespass on their own. Cattle trespass liability is strict which means independent of negligence. In
India, there is the Cattle Trespass Act of 1871.

Criminal Trespass
Entry into or into another‘s property in criminal law is not an offense per se. Either with the intention
of committing an offense or intimidating, insulting or annoying the person in possession of the
property in order to commit a criminal offense.
Illustration: A has an orchard; B enters the orchard for a pleasure trip without harm; he may be held
liable for civil infringement. But if B goes into stealing fruits, he will be guilty of a criminal offense.

Remedies
The person whose land is infringed may bring an action for trespass against the wrongdoer. He may
also forcefully defend his possession against a trespasser; he may forcefully eject him. Note: actions
include, as the case may be, claims for damages or injunctions.

Damages
A claim for damages in order to recover any financial loss suffered as a result of an infringement
may be made or, alternatively, a nominal sum may be awarded if no damage is suffered.
Injunction
In some cases of land trespass, the claimant may not want financial compensation at all, but will
instead seek an injunction, a court order to prevent a continuing or future infringement, or perhaps a
statement of unlawful infringement. Example: Asking someone to remove his tree.
Proving possession at the time of trespass is important when initiating action, either actual or
constructive. Possession means having something at your own disposal or the right to use it
exclusively. It is protected in its own right. According to Salmond- ―the possession of a material
object is the continuing exercise of a claim to the exclusive use of it.‖ It has two elements that are
mental and physical. The mental element is called as ‗animus‘ and the physical element is known as
‗corpus‘.
Animus denotes the possessor‘s intention regarding things and corpus consists of the external facts in
which this intention realized, embodied or fulfilled itself. A thing‘s physical possession does not give
possession right who holds it.

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Example: A has gone to a car showroom and is examining the vehicle‘s different features and taking
the test drive. The car is in his custody while driving the car, but not in his possession. But he‘s in
full possession of it if he runs away with the car. Here, he has both the animus and possession
necessary, and he can exclude others except the car shop owner. The wrongful possession is
therefore protected by law against all but the wrongful possession.

Possession
(i)- Possession in fact (de facto possession) like servant‘s possession.
(ii) Possession in law (de jure possession) like master‘s possession.
The servant‘s intention here is to exclude others on behalf of his master and he can maintain a
trespass action against those who interfere with property or article possession. While the intention of
a master is to exclude others from interfering with the thing and he is doing so on his own behalf.
There is a difference between ‗possession right‘ and ‗possession right.‘ If X is a landlord who
subordinates his premises to Y for 11 months, it means X is entitled to possession after 11 months ‗
expiry and the tenant is entitled to possession during this period. A person who has the right of
possession has the right to sue for infringement and not the right of possession.
Defenses

The following defenses are available as a defense for trespass-

 Exercise of easement and prescription
 Leave and License
 Acts of Necessity
 Self-Defense
 Authority of Law
 Re-entry on land
 Re-taking of goods and chattel
 Abating a nuisance

Dispossession
Dispossession is wrongfully taking possession of land from its rightful owner. Thus, the landowner
was completely deprived of his dominion by the person‘s act.
Prerequisite
 The plaintiff/owner must have possession.
 The plaintiff should have a better title as compared to the defendant.
Remedy
The party dispossessed can bring an action to recover possession of the land.

Defenses
Defenses against suits pursuant to Section 5 of the Specific Relief Act, 1963 are mainly two-fold-
1- That the defendant has a better title than the plaintiff;
2- Prescription.
Note–
 The landlord does not need to prove his title, but just end the tenancy.
 The licensee can not dispute the title of the persons who licensed them.
 There is a conflict of opinion between high Courts whether the complainant in the suit for
possession of the immovable property is entitled to succeed merely by proving that they had
previous possession or whether he is bound to prove title.

55
 Distress Damage pheasant – Animal Rights and Tort Law
Introduction
An animal‘s keeper is strictly liable, irrespective of negligence for damage done by the animal
belonging to the dangerous species, or if he knew the vicious character of the animal belonging to the
non-dangerous species. Animals falling in the first category are lions, bears, elephants, wolves, ape,
etc. whereas animals falling in the second category are dogs, horses, cows, rams, cats, etc.
A person who keeps an animal with knowledge of its tendency to do harm is strictly liable for
damage that it does if it escapes; he is under an absolute duty to confine or control it so that it shall
not do injury to others. All animals ferae naturae, that is, all animals that are not harmless by nature,
or have not been man-made and domesticated, are definitely presumed to have such a tendency so
that the scienter does not need to be proved in them. All second-category animals, mansuetae
naturae, are presumed to be harmless until they have manifested a savage or vicious propensity;
proof of such a manifestation is scientific proof and serves to transfer the animal, so to speak, from
the natural class to the class ferae naturae.
The circus owners, even without negligence were held liable when their Burmese elephant frightened
by the barking of a small dog. The elephant ran after the dog and knocked the plaintiff who was
inside the booth. In May v Burdett[1], the defendant was held liable for keeping a monkey which bit
the plaintiff, on the ground that the monkey is a dangerous animal. In Hudson v. Roberts[2], where
the defendant had the knowledge that the bull is always irritated by the colour red, was held liable
when the bull attacked the plaintiff who was wearing a red handkerchief and was walking on the
highway. In Read v. Edwards[3], the defendant having knowledge of peculiar propensities of his
dog in chasing and destroying the pheasants was held liable to the plaintiff when the dog chased and
destroyed his pheasants.
The conclusion boils down to the fact that there is no difficulty if the animal belongs to the category
of ‗ferae naturae‘. The keeper shall be liable strictly for the damage done by it even though he is not
at fault. But the difficulty arises in those cases where the animal belongs to the category of
‗mansuetae naturae‘. In such cases, if the animal has some dangerous propensities, it will be
transferred in the category of ‗ferae naturae‘. Here the keeper will be liable strictly, independently of
negligence, if the plaintiff proves scienter i.e. the defendant had the knowledge of the dangerous
propensities of such animal.

Cattle Trespass
Scienter Rule
In the event of a cattle trespass and consequent natural damage, or any other damage due to
particular vicious propensities of the cattle, the liability is strict and the owner of the cattle will be
liable even if he did not know of any other particular propensities in that animal. There is no need to
prove the defendant‘s negligence as the liability is strict, i.e. without fault. It can be noted that cattle
includes cows, asses, pigs, horses, bulls, sheep, and poultry. But dogs and cats are not included in the
term cattle because of their tendency, and therefore cats and dogs cannot trespass. Thus, in Buckle v.
Holmes[4], the defendant‘s cat strayed into the plaintiff‘s house where it killed thirteen pigeons. The
defendants were not held liable for trespass. He was not liable for killing the pigeons because there
was nothing peculiar to this cat alone. The liability under the scienter rule arises only when the
defendant had knowledge. For example, a cat is prone to injure mankind. In such a case, knowledge
of the defendant that a cat was prone to injure mankind must be established by the plaintiff and, for
this, a single instance of the ferocity of such animal is sufficient notice. Thus in Read v. Edwards,
the owner of a dog was held liable for his dog‘s act of trespassing, chasing and killing certain
pheasants which belonged to the plaintiff on the ground then the defendant had knowledge of the
particular propensity of his dog.

56
But where there is trespass by cattle the liability is strict. Scienter or negligence of the owner is not
required to be proved. In Ellis v. Loftu Iron Co.[5], the defendant‘s horse obtruded its head and feet
over the plaintiff‘s fence and bit and kicked the plaintiff‘s mare. The defendant was held liable for
cattle trespass because the liability is strict, and the plaintiff was not required to prove scienter or
negligence of the defendant.

It may be noted that the defendant will be liable for the natural consequence of cattle trespass.
In Theyer v. Purnell, the defendant‘s sheep, infected with scab, trespassed on to the plaintiff‘s land
and conveyed the same to the plaintiff‘s sheep. All these sheep were interned under a government
order and the plaintiff was put to a considerable expense. The defendant was held liable for cattle
trespass and its irrespective of his knowledge as to the infected condition of the sheep. Similarly,
in Wormald v. Cole, the plaintiff was knocked down and injured by the trespassing heifer belonging
to the defendant. It was held by the court that the personal injuries to the plaintiff were the direct
result of the trespass and the defendant was held liable for the same.

Animal Act, 1971

In England, the Animal Act of 1971 has modified the common law by dividing the animals into two
groups „dangerous‟ and „non-dangerous‟ which more or less follows the distinction between „ferae
naturae‟ and „mansuetae naturae‟. Section 6(2) of the Animal Act defines a dangerous animal
as “not commonly domesticated” and when fully grown can cause severe damage. When damage is
caused by a dangerous animal, its keeper is strictly liable. But when damage is caused by a non-
dangerous animal, Section 2(2) of the Act requires the plaintiff to prove that the defendant has the
knowledge of certain abnormal characteristics for holding the defendant liable.
In England, the common law rule of Cattle trespass has been replaced by the Animal Act,
1971. Section 4(1) of the Act, provides that where livestock belonging to some person strays on to
the land or property of another and causes damage to land or property on it which is the ownership or
possession of another and/ or that person incurs expenses in keeping the livestock while it cannot be
restored to the person to whom it belongs, the owner of the livestock is liable for the damage and
expenses except as otherwise provided by the Act.

The common law remedy i.e., distress damage feasant is abolished. In its place, Section 7 of the
Animals Act provides a right to detain the livestock and to sell it at the end of fourteen days. The
ancient right of non-liability of the cattle owner if his cattle trespass to a highway and causes damage
has been retained in Section 2 of the Act. Similarly, Section 5 of the Act recognizes the well-
established law laid down in Tellet v Ward[6], that the occupier of premises adjoining a highway is
presumed to have accepted the risk incidental to the passage of ordinary traffic along that highway.

Cattle Trespass Act, 1871

In India, Cattle Trespass Act, 1871, provides that the trespassing cattle can be taken to the pounds
established in various places for keeping such cattle. The owner of the cattle can take them back
from the pound keeper after payment of the pound fess. However, he is not bound to pay
compensation to the owner of the land. The owner of the pig which strays and does not harm to
another‘s land is liable to pay fine. According to Cattle Trespass Act, 1871, cattle includes elephants,
camels, buffaloes, horses, ponies, mares, geldings, colts, mules, asses, pigs, rams, ewes, sheep,
lambs, goats, fillies and birds.

The cultivator or occupier of the land or vendee or mortgagee of the crop may seize any cattle
trespassing on such land and doing damage to any crop or produce and send the cattle within 24
hours to the pounds. There are other provisions with regard to delivery and sale of cattle, illegal
seizure, detention, payment of penalties, etc. in the Act.

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In Manton v. Holmes, it was held that unless there be trespass to land to begin with, the action is
inapplicable to damage done by the animal to chattels or to human beings on the land. X owned a
field and with his consent, the plaintiff put his horse there. Later the defendant, also with X‘s
consent, put his mare in the field, but he did not notify the plaintiff of this. The mare kicked the horse
which had to be destroyed. The defendant was held not liable for cattle trespass for the mare had not
been trespassing.
In the States, there are similar provisions with slight modifications as in the Cattle Trespass Act,
1956; Cattle Trespass Act, 1959; Madhya Pradesh Act 23 of 1958; Tamil Nadu Act, 56 of 1959;
Kerala Cattle Trespass Act, 1961; Mysore Cattle Trespass Act, 1966, etc. Cattle damaging public
roads, canal, and embankments are also liable to be seized by the police officers or other concerned
officers and sent to pounds.

Defenses
There are several defenses and they are:
 Act of third party
The act of a stranger is a defense to liability under the rule.
 Default of the plaintiff
An obvious example is a plaintiff fails to fence a haystack which he is licensed to put upon the
defendant‘s land and thereby cause the defendant‘s cattle to consume the stack. Failure to fence the
property may disentitle the plaintiff. But the plaintiff was under a duty to fence towards a third party
and has neglected that duty its neglect will not exculpate the defendant. Therefore, if A has
covenanted with his landlord C to keep his fence in repair and fails to do so and in consequence, the
cattle of his neighbour B to whom he owes no duty to a fence, stray on to A‘s land, A can sue B for
cattle trespass.
 Volunti non fit injuria i.e., consent
The consent of the party is a defense to liability under the rule of law.
 Act of God
This defence has been abolished in England.
 Inevitable accident
This may be a defense depending upon circumstances. This is the rule especially after the decision of
the case in Stanley v. Powell[7].
 Distraint
The animal can be seized and detained until compensation is paid. This has now been abolished in
England after passing the Animal Act, 1971,
 Tender of amends
The owner of the trespassing cattle may make amends by tendering some amount as compensation.

Distress Damage Feasant

“Distress” means the right to detain
and “Damage” means “injury” and “Feasant” means “wrongful act”. If a man unlawfully finds
another man‘s cattle or chattel on his land causing damages, he is entitled to seize and detain the
cattle, which are impounded, to force them to compensate for the damages caused by their owners.
This right is called the right to damage caused by distress. Distress is usually taken from straying
bovines, but any other cattle that illegally encumber and damages the land of a man can just as well
be taken.
The law has always severely restricted the right to arrest and to be an extrajudicial remedy. It must,
therefore, be held on the land of the detainer. He has no right to go after and recapture the thing if the
thing escapes.
There is no right to distress when there is no infringement. Therefore, when the cattle are driven
along a street, they cannot be arrested on their driver‘s way to the adjacent undisturbed land until

58
there is a reasonable opportunity to drive them back. It is not lawful to take anything under the
personal control of someone else by way of distress damage.

Joint Tort-Feasors and the Laws in India

Introduction
When two or more persons unite to cause damage to another person, then they will be liable as joint
tortfeasors. All those who actively participate in the civil wrong commission are joint tortfeasors.
Based on the percentage of damage caused by his negligent act, each joint tortfeasor is responsible
for paying a portion of the compensation granted to the complainant. According to the principle of
contribution, the defendant who pays more than his share of the damages, or who pay more than he is
at fault, may bring an action to recover from the other defendant.
Illustration
The claimant has the right to recover the damages from both the defendants, if X and Y are found to
be at fault.

Liability of Independent Tortfeasor

They are severally liable for the same damage due to an independent course of action. In Thompson
v. London County Council, it was observed that ―the damage is one but the cause of action which
led to the damage are two‖. Such tortfeasors are, therefore, severally liable for the same damage, not
jointly liable for the same tort.
In Koursk case, Koursk and Clan Chisholm collided with one another. As a result, the ship Clan
Chisholm collided and sank another ship Itria. The owners of the damaged ship Itria recovered the
damages from Clan Chisholm for the loss suffered but were not fully satisfied as the liability of the
owners of Clan Chisholm was limited to the lesser amount. Subsequently, owners of Itria filed a suit
against the Koursk also. It was held that Koursk and Clan Chisholm were not joint tortfeasors but
only independent tortfeasors. The liability of the Independent tort was held to be several and not joint
and therefore, there could be as many causes of action as the number of tortfeasors.

Liability of Several Concurrent Tortfeasors

When the same injury is caused to another person by two or more person as a result of their separate
tortious acts, this results in several concurrent tortfeasors. Even where successive injuries are caused,
the parties remain multiple, concurrent tortfeasors as long as the negligence of each is both a factual
and proximate cause of each injury.
Illustration
Several concurrent tortfeasors will occur in a chain collision situation, as described in the case
of Rutter v Allen.[1] In this case, the plaintiff stopped his vehicle behind a truck that had come to a
sudden stop. The Plaintiff was then struck from behind by a vehicle driven by the defendant X which
was struck by a vehicle driven by the defendant Y. The exact sequence of the collisions could not be
determined with certainty because they all occurred within a very short time frame. Despite this, it
was held that due to both the defendant‘s negligence, the damage had been caused to the plaintiff‘s
vehicle. As a consequence, the accused were several concurrent tortfeasors and were jointly and
severally liable for the damage caused by their negligence.
If a complainant suffers multiple accidents, several concurrent tortfeasors may also be the individual
tortfeasors from each accident. For example, in a motor vehicle accident in Hutchings v Dow[2], the
complainant suffered damage. He was further injured in an assault about 18 months later. It was
determined that the complainant suffered from severe and ongoing depression resulting from both
the motor vehicle accident and the assault. The court stated that ―several tortfeasors whose acts
combined to produce the same damage, i.e. depression,‖ were the defendants from the motor vehicle
accident and the assault perpetrator.

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Liability of Joint Tortfeasors
When two or more persons join together for common action, then all the persons are jointly and
severally liable for any tort committed in the course of such action. There were three principles in
English Common Law with regard to the liability of joint tortfeasors.
 The first principle is that the liability of wrongdoers is joint and several i.e. each is liable for
the whole damage. The injured may sue them jointly or separately.
 The second principle was laid down in the case of Brinsmead v Harrison, where it was held
that a judgment obtained against one joint wrongdoer released all the others even though it
was not satisfied.
 The third rule was laid in the case of Merryweather v Nixon, where it was held that in
common law, no action for contribution could be sustained by one wrongdoer against another,
although one who sought a contribution might have been compelled to pay the full damages.
The reason alleged for this rule was that any such claim to the contribution must be based on
an implied contract between the tort-feasors and that such a contract was illegally concluded
with a view to committing an illegal act.
But the above rules were virtually abolished by the Law reforms Act, 1935 and the Civil Liability
Act, 1978. The first rule in Brinsmead case being unjust, was abolished by the Act 1935 and
therefore by the Act of 1978 which now provides that judgment recovered against any person liable
in respect of any debt or damage should not be bar to an action, or to the continuance of an action,
against another person who is jointly liable with him with respect to the debt and damage.
The second rule in Merryweather case is that a tortfeasor who has been held liable cannot recover
contribution from other joint tortfeasors, being unjust, has also been abolished by the Act of 1935
which, as per section 6(1), provides that a tortfeasor who has been held liable to pay more than the
share of the damages, can claim contribution from the other joint tortfeasors.
The third unjust rule was created by section 6(1)(b) of the Law Reform Act, of 1935 that if
successive actions are brought, the amount of damages recoverable shall not, in the aggregate
exceed, the amount of damages awarded in the first judgment. This rule, being unjust has now been
repealed and replaced by section 4 of the civil liability Act, 1978 which now disallows the only
recovery of cost in the subsequent suits, unless the court is of the opinion that there was a reasonable
ground for bringing the action.

Laws in India
In India, there is no statutory law on joint tortfeasors‘ liability. As stated above, in England the Law
Reform Act, 1935 and the Civil Liability Act 1978, have virtually brought the position of joint-
tortfeasors on par with the independent tortfeasors. The question therefore arises, should the Indian
courts follow the common law on joint tortfeasors which was laid down in Brinsmead and
Merryweather cases and was prevailing in England prior to 1935 or the law enacted by the British
Parliament in 1935 and 1978? Up to 1942, the courts in India had followed the law as laid down
in Brinsmead and Merryweather cases, but in some cases, the courts expressed doubts about its
applicability in India.

The Supreme court of India, in Khushro S. Gandhi v. Guzdar[4], refused to follow the common
law of England. The fact was that in the suit for damages for defamation, one of the defendants had
tendered an apology to the plaintiff and the court had passed a compromise decree between the
plaintiff and the defendants who tendered an apology. When the plaintiff wanted to continue the suit
against the other defendants, it was contended by the defendants that the compromise decree released
all other defendants from their liability. Rejecting the contentions of the defendants, the court held
that in the case of joint tortfeasors, in order to release all joint tortfeasors, the plaintiff must receive
full satisfaction or which the law must consider as such from a tortfeasor before other joint

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tortfeasors can rely on accord and satisfaction. The rule which is in consonance with justice, equity
and good conscience will convince only that type of liability of tortfeasors as joint and several.
In the light of the above decision, the recent trend of the Indian court is to follow or adopt common
law of England or the law enacted by the British Parliament if it is in consonance with the principles
of equity, justice and good conscience under the Indian Constitution.

When does the liability of joint tortfeasors arise?

Liability of joint tortfeasors arises in three circumstances and they are:

Agency
When one person is authorized by another person to do work on his behalf then any tort committed
by that person, the agent then principal who is authorizing the work will jointly and independently be
held liable. When a tort is committed by an agency then both principal and agent are considered as
joint tortfeasors. When any partner commits tort during the course of the business, then all other
partners are also considered as joint tortfeasors.

Vicarious Liability
When a person is liable for the tort committed by another person under special circumstances, the
liability is joint and both are joint-tortfeasors. Thus, when a servant commits a tort in the course of
employment, the master can be made liable along with the servant as a joint-tortfeasors.

Joint Action
Where two or more persons join together for common action then all the persons are jointly and
severally liable for the tort committed in the course of action.
Tortfeasors Defenses
An individual or entity accused of committing a civil mistake basically has three options for
defending their actions. These tortfeasor defenses include:

Consent and Waiver

A tortfeasor (defendant) may defend his position in a civil lawsuit if the accuser (defendant) has been
explicitly warned of the risk or danger of engaging in the harmful activity. This defense is referred to
as the legal maxim volenti non fit injuries, which means ―no injury is done to a consenting person.‖
This tortfeasor defense usually relies on signed waivers of liability

Comparative Negligence
In comparative negligence, tortfeasors may try to defend themselves by claiming that the
complainant contributed to his own damage by committing acts of recklessness or negligence. A
similar concept called ―contributory negligence‖ often results in the court assigning a percentage of
fault to each party, which ultimately dictates the percentage of financial responsibility for which each
party will be held accountable.

Illegality
Where at the time of the injury, the complainant committed an illegal act for which he was seeking
compensation, the defendant‘s liability may be reduced, or entirely eliminated.

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Remedies
The law of contribution says that Y claims to share the liability to X with others was based on the
fact that they were subject to a common liability to X, whether equally with Y or not. The words in
respect of the same damage emphasized the need for one loss to be allocated among those liable. The
amount of the contribution recoverable from any person shall be fair and equitable, taking into
account the extent of his responsibility for the damage. The court may exempt any person from the
liability to make a contribution or direct that any person‘s contribution amounts to full compensation.
The plaintiff fell down a hole which had been left uncovered by the negligence of a contractor
employed by the defendant to carry out certain works on the premises on which the plaintiff had
come. It was held that the contractor who was added as a third person to the suit was liable to
contribute one-half of the damages.

Criticism of Joint Tortfeasors

Joint and multiple liability doctrine is criticized because it can result in severe inequities. For
example, a defendant who has only 10 percent responsibility for an accident that is jointly and
severally liable with a defendant who is 90 percent at fault for an accident may have to bear the full
amount of damage financial burden, even though his or her mistake was quite minor.

Conclusion
Joint and multiple liabilities is a system that protects the complainants when one or more wrongdoers
are unable to pay damages owed to the complainant. However, this can lead to disproportionate and
unexpected results for tortfeasors.

Assault as a Tort and Remedies

What is a Tort?
The word tort has been derived from the word ―tortum‖ is a Latin term which means twist. The law
of tort consists of wrongful acts whereby the wrongdoers violates some legal rights vested in another
person. The law imposes a duty to respect the legal rights vested in the members of society and the
person making breach of that duty is said to have done the wrongful act. Violations may be due to
intentional acts, breach of duty or violation of law.
The party who has committed a tort is known as tortfeasor. When a tortfeasor incur tort liability,
which means that they have to compensate the victim for the harm which has caused by them. In
other words, the tortfeasor will have to pay damages if he is found ―liable‖ or found responsible for a
person‘s injuries.
The law of Tort in India has evolved from the Law of torts in the UK which is most popularly known
as ―Judge Made Law‖ and the law of tort does not come from a statute and is uncodified. Despite
this, it has existed for many years, although the number of cases of tort have declined. The number of
cases of tort or tort litigation is less as compared to the cases of tort filed in Britain and the United
States. The Indian law of tort got its shape after the principle of law of tort developed in the UK.
Most of the landmark judgments of tort in India is based on the judgments of House of Lords/ courts
in England. In India, the tort cases are tried in civil courts and the relief awarded includes damages
by way of monetary compensation or an order of injunction or restitution. The law of Tort serves two
basic, common objectives:
1. Compensation to the victim for any harm resulting from a breach of defence.
2. Discouraging the rescuer from repeating the violation in the future.

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Examples of Torts
Some common examples of torts include:
1. Negligence-related claims.
2. Civil assault/civil battery.
3. Wrongful death claims.
4. Trespassing.
5. Products liability and dangerous product.
6. Intentional infliction of emotional distress.

Assault
In common law, assault is a tort, an act of the defendant which causes to the plaintiff reasonable
apprehension of the infliction of a battery on him by the defendant. When the defendant creates his
act by an apprehension in the mind of the plaintiff that he is going to commit battery against the
plaintiff, the wrong of assault is completed. The wrong consists of an attempt to do harm rather than
the harm being caused thereby. In assault charges must include conduct that is offensive which is
offensive or causes another person to the fear of their safety. This clearly means that one can be
guilty of assault even if he/she did not physically harm the victim. In the case of R. v. S. George, the
pointing of loaded gun to another is an assault. If the pistol is not loaded, then even it may be an
assault, if pointed at such a distance that it may cause injury. if a person advances the manner of
threatening to use force , then there is assault. This was decided in the case of Stephens v. Myers.

Elements of Assault
If one or more elements have not been satisfied then It can be a defense to an assault charge.
Elements of the crime of assault are:

An act or conduct intended to created: To prove a criminal attack, the defendants‘ behaviour must
be motivated to create a situation of fear or danger in the victim‘s mind. Accident acts do not include
allegations of assault.

A reasonable apprehension: Further, the victim must reasonably believe that the defendant‘s
conduct will harm or humiliate him. The victim must understand the defendant‘s potentially harmful
or offensive acts.

Of imminent harm: The victim‘s fear must be a direct response to a threat that is imminent. Future
threats, such as ―I will beat you tommorrow‖, will not result in assault charges. In addition, there
must be some kind of perceived physical threat to the victim in the loss; For this reason, words by
themselves generally do not constitute an attack.

It is believed that the defendant‘s actions would cause physical danger or abusive behaviour to the
victim. Thus, the pretence of kicking or punching the victim may be an attack, as will attempt to spit
on the victim (aggressive behaviour).
All of the above elements must be present and the evidence must be supported with evidence if
found guilty for the attack.
It can be difficult to prove whether the defendant actually intended the attack. Similarly, judges often
spend a lot of time determining whether a defendant‘s actions are considered harmful or abusive. In
determining this, they will consider what an average person may perceive as harmful or aggressive.

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Difference between Assault and Battery
Assault Battery
Battery includes intentional application of
Assault is the attempt to commit
Definition force to another person without any
battery.
lawful justification.
Physical contact is needed.
Threat of violence is enough for
Important
assault. No physical contact is
aspect
necessary.

Create reasonable apprehension in the · There should be use of force.

Principle plaintiff‘s mind that immediate force · The same should be, without any lawful
will also be used. justification.
Objective To threaten a person. To cause harm.
Nature Not necessarily physical. Must be physical.

Difference between Criminal and Civil Assault

Civil assault Criminal assault
If the respondent is convicted, he may be
In civil assault, to sue the
imprisoned, and may also have to pay a fine and
respondent for the full extent
reinstatement. But the fine would be paid to the
of his loss, including lost
Meaning government, and restitution would most likely
earnings and pain and
cover only the medical bills, not your non-
suffering of the past and
economic losses such as pain and
future.
suffering stemming from the incident.
Procedure In civil assault case, a District
Attorney is not involved. The
After an attack, the victim should report to the
matter is brought by the
police. The police will then make an arrest, take
plaintiff. The plaintiff has
action on the alleged attacker and refer the case to
more control in the case of
the District Attorney.
civil assault.
When the plaintiff wins, the defendant will not go
A win for the District
to jail, but will have to pay financial compensation.
Punishment Attorney, results in jail term,
a fine, or both.

Legal defenses on charges of Assault

As with other types of criminal charges, there may be some defenses to assault charges. This will
depend on each individual case, as well as other factors such as state law. Faults commonly charged
with assault charges include:

1. Self-defense: This could be a defense if the defendant was acting out of self-defense. They
should only use the amount or display of force that is appropriate in the situation and in
proportion to the force being used against them.

2. Intoxication: In some cases, intoxication can be a legal defense, especially in cases where
intoxication affects a person‘s ability to act intentionally.

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 3. Coercion: This may be a defense if the defendant was forced to attack under threat of harm
(for example, if they are being held at gunpoint and for assault at the behest of someone).

4. Lack of proof / proof: As stated above, if the elements of proof are not found or supported
with the correct evidence, it can serve as a legal defense.

Many other types of avoidance may exist depending on the circumstances.

Cases
Fagan v Commissioner of Police for the Metropolis
Fagan was sitting in his car when he was approached by a police officer who asked him to take the
vehicle. Fagan did so, overturned his car and rolled over a police officer‘s leg. The officer forcefully
asked him to remove the car from his leg, to which Fagan swore him and refused to take the vehicle
and shut down the engine. Fagan was convicted of assaulting a police officer in the execution of his
duty. Fagan later appealed the decision. The court held that, Although assault is an independent
crime and is to be treated as such, for practical purposes today, assault is generally synonymous with
battery. On this basis, it was held that Fagan‘s crime was not the refusal to move the car but that
having driven on to the foot of the officer and decided not to cease the act, he had established a
continual act of battery. This meant that actus Reus and mens rea were present and as such, an
assault was committed. Fagan‘s conviction was upheld.
R. V. Constanza
A man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a
period of almost two years, the man followed the women home from work, made numerous silent
phone calls, wrote her over 800 letters, drove past her house, visited her house without consent, and
wrote offensive words on her house‘s door three times. Following these actions, she received two
additional letters with threatening language. She was soon diagnosed by a doctor as suffering from
clinical depression and anxiety due to apprehended fear caused by the man‘s actions and letters. A
man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a period
of almost two years, the man followed the women home from work, made numerous silent phone
calls, wrote her over 800 letters, drove past her house, visited her house without consent, and wrote
offensive words on her house‘s door three times. Following these actions, she received two
additional letters with threatening language. She was soon diagnosed by a doctor as suffering from
clinical depression and anxiety due to apprehended fear caused by the man‘s actions and letters.

Remedies
1. Action for damages- Whenever the plaintiff has been wrongfully detained, he can always
bring an action to claim damages. Compensation may be claimed not only for injury to the
liberty but also for disgrace and humiliation which may be caused thereby. According
to McGregor on damages, the details of how the damages worked in false imprisonment are
few: generally, it is not a pecuniary loss or of dignity and is left to the jury and their
discretion. The principle heads for damage would appear to be the injury to liberty, i.e., the
loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings,
i.e., the dignity, mental suffering, disgrace and humiliation with any attendant loss of social
status.
2. Self help– This is the remedy which is available to a person who while he is still under
detention instead of waiting for legal action and procuring his release thereby.
3. Habeas Corpus– It is speedier remedy for procuring the release of a person who is
wrongfully detained. Such a writ may be issued either by the Supreme Court under Article
32 or by a High Court under Article 226 of Indian Constitution. By this writ person detaining
is required to produce the detained person before the court and justify the detention. If the

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 court finds the detention is without any just or reasonable ground, it will order that the person
detained should be immediately released.

It is just possible that the person wrongfully detained may have been set free by the time the writ of
habeas corpus is disposed off. The court hearing the petition may grant compensation as ancillary
relief in such cases . in the case of Rudal Shah v. State of Bihar and Bhim Singh v State of J&K, the
Supreme Court granted such compensation in writs of habeas corpus.

Conclusion
Assault is an attempted offense, the law is intended to prevent possible battery by punishing conduct
that comes in a dangerous way to obtain battery. As with most attempted crimes, a clear line cannot
be drawn between a criminal attack and conduct that is merely an attack preparation. There should be
an intention to cause harm, but it is not enough if it creates the possibility of damage or the danger of
battery in a distorted future. Instead, the intent must be taken out of imminent danger, some overt act
that endangers the battery. Thus, words or intentions do not constitute mere attack.

Torts Relating to Marital Rights

Introduction
Torts relating to marital rights is one of the aspects of the term loss of consortium. Loss of
consortium means torts where a tortfeasor causes deprivation of the benefits of a family relationship.
It is to provide compensation to the spouse or the members of the family by the defendant in a case
where personal injuries have occurred to another spouse or family member. This right originated in
the 18th century when a father was compensated by a man who courted his daughter, due to which
instead of doing household services, she was spending time with that man.
Torts relating to marital rights was based on the principle of per quod servitium et consortium
amisit which means ―in consequence of which he lost her servitude and sex‖. It protects the rights of
the husband against personal injuries suffered by him, depriving him of company or association with
the spouse.

What are the Torts relating to Marital Rights?

Torts relating to marital rights are rights which provide immunity to spouses against the third party
for a variety of actions which leads to interference with the marital relationship. Torts relating to
marital rights protect the deprivation of sexual relationship and also includes loss that a husband or
wife suffers due to deprivation from care, affection, and companionship of the other spouse. These
are categorized under the two main categories, which are explained below:
1. The first category involves torts for alienation of affection. Here, the plaintiff spouse seeks
loss from the third party who has injured the other spouse. Though these rights are mainly
given to spouses due to sexual conflict, there is no law which specifically states that alienation
of affection only includes sexual deprivation.
2. The second category includes criminal conversation. A criminal conversation happens when
one spouse is cheating on the other by engaging in an extramarital affair. These rights are
given, as it is considered that in a marital relationship, spouses have ownership rights over the
affection and sexual services of the other spouse.

What are the kinds of Torts relating to Marital Rights?

There are three kinds of torts covered under torts relating to marital rights which can be committed
by a third party. They are as follows:
1. Abduction or taking away a man‘s wife
2. Adultery
3. Causing physical injuries to a man‘s wife

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Abduction
Under the common law system, a husband has been provided with the right to act against any person
who either forcefully or by fraud takes away his wife. A husband has also been given the right to sue
if a person entices or persuades his wife to live away from the husband in absence of a sufficient
cause. The real point of an action lies in loss of consortium of the wife, giving the husband an
exclusive right against the tortfeasor who has invaded to the wife‘s aid, affection, and
companionship. In all suits, the principle of per quod amisit serves as a basic ground which
compensates the husband for losing the benefit of wife‘s society i.e. her companionship and all the
relations husband has got after marrying her.
The right of the consortium is a mutual right which is equally available to both husband and wife.
Either a wife or husband can invoke this right, if one of them is deprived of the benefit of another
spouse‘s society where society means companionship and all the relations related to a spouse through
another spouse. For example, the wife under her right of loss of consortium can sue the defendant for
deprivation of the benefit of the husband‘s society i.e. his companionship and all the relations related
to wife after marrying him.

Adultery
During the medieval period, under the writ of trespass, adultery was maintainable. The action of
adultery during the medieval period was known as the action for criminal conversation. After the
enactment of Divorce and Matrimonial Causes Act, 1957, the action under the writ of trespass was
abolished. Now, a husband has to claim damages for the adultery under the Divorce and Matrimonial
Causes Act, 1957. A husband can either make a claim for damages either in a petition for judicial
separation or in a petition demanding only claim for damages for adultery. A wife does not enjoy the
same right and has not been given the right to bring a suit against the wrongdoer for claiming
damages with regard to adultery committed by her husband.
Under the principles of common law, damages incurred criminal conversation were awarded without
requiring any proof of alienation of affection in the marital relationship.

Causing Physical injuries to the Wife

Under the common law system, a husband can bring an action against the tortfeasor for any physical
injury caused to his wife by the actions of the tortfeasor. If due to maltreatment of the tortfeasor, the
husband is deprived of companionship and assistance of his wife for any time period, the husband
has the right to get a separate remedy. A wife can also sue a tortfeasor if an injury is caused to her
and due to that injury her husband loses the benefit of her society and service which is also known
as consortium et servitium. She can either claim damages under a single suit or she can file two
different suits for claiming damages.
In case, the wife dies due to the wrongs by the tortfeasor, the husband can claim damages for the
death of his wife under the Fatal Accidents Act. The husband is awarded compensation as he loses
the services and society of his wife. The only condition that needs to be fulfilled is that the husband
and wife should not be living separately from each other while the action of tortfeasor occurred,
otherwise no compensation will be awarded.
This right was earlier limited to the husband only but with the passage of time, the Court has
recognized similar rights available to the wife under the loss of consortium.

Examples of torts relating to marital rights-

If there is a car accident of a married victim causing injuries or disabilities, his or her spouse can
claim damages from the tortfeasor. The other spouse will not only get damages for paying bills of the
hospitals but also compensation for the absence of the victim spouse, which has deprived him or her
from enjoying the companionship of the victim spouse. If the victim spouse suffers some mental
injuries, then his spouse will get compensation for mental injuries too.

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Pre-requisites of Torts relating to Marital Rights
The one who suffers an injury is known as the victim spouse and the other claiming damages is the
claimant spouse. There are three basic ingredients to be fulfilled by the claimant spouse for getting
compensation under the torts relating to marital rights:
1. There should be liability of the tortfeasor to the victim spouse.
2. Marriage of husband and wife should not be severed.
3. There should be proof of damages by the action of the tortfeasor.
Are these rights available to the cohabitants who reside together without having a valid marriage?
Earlier law was very strict and it provided immunity only to legally wedded spouses. In 1977, in the
case of Tong v. Joseon, the California Court continued the practice of recognizing the rights of
married spouses only and rejected a claim made by the impaired partner who was not married to the
victim girl at the date of the injury.

But with change of time, there have been several claims from the cohabitants who though are not
legally wedded but are residing together. In 1980, in the case of Bullock v. United States, the Court
of New Jersey overruled the old holding and held that a deprived cohabitant should not be restricted
from getting damages for a tortious act which cause interference in the ongoing cohabitant
relationship.

Liability of Tortfeasor in transfer of Venereal Disease

In cases, where a claimant spouse acquires any venereal disease from the other spouse who has
acquired it from the third party, the third party is liable to the claimant spouse. In Mussivand v.
David, a wife transferred a venereal disease to her husband which she had acquired from her lover.
The Court held that the lover of the wife will be liable to the husband for transmitting the disease to
him. The Court specifically stated that the lover would not be held liable if the wife in advance was
aware of the disease of the lover.

English Legal System on Torts relating to Marital Rights

Under the English common law, torts relating to marital rights were recognized. In Baker
v. Bolton, a husband was awarded damages for his wife‘s injuries due to a carriage accident until she
did not die. Even after the enactment of Lord Campbell‘s Act, the English legal system continued not
to recognize the injuries caused by death. In the middle of the 19th Century, Illinois enacted a new
act for wrongful death which allowed the next of kin to sue a person for causing the death.
In Parker v. Dzundza, the Court held that there will be no compensation awarded to the spouse if
the relationship between husband and wife was already severed by divorce.

Torts relating to Marital Rights in India

In India torts relating to marital rights are covered under the spousal consortium and is majorly
invoked in the compensation under the Motor Vehicles Act or in divorce proceedings with respect to
adultery.
 In Abdul Kadar Ebrahim Sura v. Kashinath Moreshwar Chandani, for the first time, the
Supreme Court applied the principle of loss of consortium. It held that a spouse has the right
to claim compensation for the death of another spouse which resulted in the loss of
companionship and services.
 In Abacus Case, the Supreme Court defined the spousal consortium. The court held that the
spousal consortium means the rights which are provided in a marital relationship for awarding
compensation to the surviving spouse for the loss of affection, aid, company, society, and
cooperation of the other spouse.
 In Rajesh and Others v. Rajbir Singh and others, the court held that spousal consortium
includes the right of the spouse to company, care, help, comfort, guidance, society, solace,

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 affection and sexual relations with his or her mate. The spouse needs to be compensated
appropriately for such loss. And, the court awarded 1 lakh rupees to the widow for the death
of the husband.
 In Ramkrishna Pillai v. Vijaykumari Amma, the Kerala High Court held that a wife cannot
invoke spousal consortium and pressurize her husband to live separately from his parents
unless there are grave circumstances.

Why Torts relating to Marital Rights are important?

Torts relating to marital rights are important due to the aura given to the relationship between a
husband and wife. Marital relation has always been held worthy of getting legal protection. It
protects the interest of a husband and wife against any injury caused to the physical integrity of his or
her spouse. It compensates for the deprivation of financial contributions by the injured spouse in the
household, affection, and sex caused by the injuries of the tortfeasor. For example, X injures W‘s
husband H in an accident, W can get compensation to recover the damages X has caused by injuring
H; damages may include: H‘s monthly pay which is being cut off because he is not going to work
due to injuries caused, deprivation of affection and sexual relationship which W would have got if H
was not injured etc.

Are there any Marital Rights which are covered both under Civil and Criminal law?
Yes. In India, for all the above-mentioned torts relating to marital rights, a person can institute a suit
in the criminal court of law except for adultery. Adultery has been abolished as a criminal offense by
the Supreme Court in September 2018 in the case of Joseph Shine v. Union of India.
Difference between rights given under Civil law and Criminal law
1. Under the torts relating to marital rights, only spouses are given the right to sue the third party
whereas there is no such limitation imposed in the case of criminal law.
2. Mere abduction is not made punishable under the Indian Penal Code. It is only an offense
when it is coupled with actual force. Whereas under torts relating to marital rights, even if a
person entices the other spouse without using actual force, an action for the damages can be
brought against the person.

Preference to civil or criminal right?

Under the criminal law, punishment for the offense is given in the form of fines, imprisonment and
the other form of penalties which would not benefit the claimant spouse. Whereas when a spouse
brings an action in the civil court of law, the claimant spouse will be awarded for damages in the
form of compensation. Therefore, a spouse should always bring an action against the third party for
the interference in the civil court of law if compensation is the priority.

Conclusion
Torts relating to marital rights play a major role in providing justice to a husband for deprivation of
sexual relationship or companionship of his wife due to the wrongdoings of a tortfeasor. Earlier it
was limited only to the rights of the husband. But with the evolution of law, Courts have recognized
similar rights for the wife as well. In India, both the husband and wife avail similar rights under
spousal consortium which majorly covers the accident cases under the Motor Vehicles Act.
Therefore, it can be concluded that torts relating to marital rights overcoming the patriarchy concept
have established equal right for the absence of companionship and services of the other spouse.

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 Torts Relating to Abuse of Legal Process
Introduction
Proceedings instituted maliciously may include not only malicious prosecution and malicious arrest
but also malicious bankruptcy and liquidation proceeding (civil proceedings), malicious execution of
process against property, and malicious search.[1] Malicious prosecution is the malicious intention of
unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or
probable cause.[2] Generally, it can be said that the malicious prosecution is defined as a judicial
proceeding instituted by one person against another, from wrongful or improper motive, without any
reasonable and probable cause to justify it.[3]
In the case of West Bengal State Electricity Board v. Dilip Kumar Ray,[4]the Court defined the term
“malicious prosecution” in the following words:-
―A judicial proceeding instituted by one person against another, from wrongful or improper motive
and without probable cause to sustain it is a malicious prosecution.‖
The Court in the same case laid down the distinction between ―an action for malicious prosecution‖
and ―an action for abuse of process‖ in the following words:-

―A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of

process is the employment of legal process for some purpose other than that which it was intended
by the law to affect the improper use of a regularly issued process.‖

Essential Elements of Malicious Prosecution

Following are the essential elements which the plaintiff is required to prove in a suit for damages for
malicious prosecution:-
 Prosecution by the defendant.
 Absence of reasonable and probable cause.
 Defendant acted maliciously.
 Termination of proceedings in the favour of the plaintiff.
 Plaintiff suffered damage as a result of the prosecution.

1. Prosecution by the defendant

The first essential element which the plaintiff is required to prove in a suit for damages for malicious
prosecution is that he (plaintiff) was prosecuted by the defendant.[5] The word ―prosecution‖ carries
a wider sense than a trial and includes criminal proceedings by way of appeal, or revision.[6] In the
case of Musa Yakum v. Manilal,[7] it was held that it is no excuse for the defendant that he instituted
the prosecution under the order of a Court, if the Court was moved by the defendant‘s false evidence
to give the order.
In the case of Khagendra Nath v. Jacob Chandra,[8]the Court held that merely bringing the matter
before the executive authority did not amount to prosecution and, therefore, the action for malicious
prosecution could not be maintained.
It is significant to note that departmental enquiry by disciplinary authority cannot be called
prosecution.

2. Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to prove that the
defendant prosecuted him without reasonable and probable cause. The question relating to want of
reasonable and probable cause in a suit for malicious prosecution should be decided on all facts
before the Court.[10] In the case of Antarajami Sharma v. Padma Bewa,[11]it has been said that law
is settled that in a case of damages for malicious prosecution, onus of proof of absence of reasonable
and probable clause rests on the plaintiff.

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The existence of reasonable and probable cause is of no avail if the prosecutor prosecuted in
ignorance of it. The dismissal of a prosecution or acquittal of the accused does not create any
presumption of the absence of reasonable and probable cause. If a man prefers an indictment
containing several charges, whereof for some there is, and for others there is not, probable cause, his
liability for malicious prosecution is complete.

3. Defendant acted maliciously

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is
required to prove that the defendant acted maliciously in prosecuting him and not with a mere
intention of carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or
spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such as to
gain a private collateral advantage.
In the case of Bank of India v. Lekshmi Das,[13] the Court reiterated the Indian position that in
malice absence of a probable and reasonable cause must be proved. The proceedings complained of
by the plaintiff must be initiated in a malicious spirit that is from an indirect and improper motive
and not in furtherance of justice.[14] Malice may be inferred upon proof of absence of honest belief
in the accusation and consequent want of reasonable and probable cause for instituting the
prosecution complained of.[15]
It is not necessary that the defendant should be acting maliciously right from the moment the
prosecution was launched. If the prosecutor is innocent in the beginning but becomes malicious
subsequently, an action for malicious prosecution can lie. If during the pendency of criminal
prosecution, the defendant gets positive knowledge of the innocence of the accused, from that
moment onwards the continuance of the prosecution is malicious.

4. Termination of proceedings in the favour of the plaintiff

In a suit for damages for malicious prosecution, it is essential to show that the proceedings
complained of terminated in favour of the plaintiff. Termination in favour of the plaintiff does not
mean judicial determination of his innocence; it means absence of judicial determination of his
guilt.[17] Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be
any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage.
No action can be brought when the prosecution or the proceedings are still pending. It is a rule of law
that no one shall be allowed to allege of a still pending suit that it is unjust.

5. Plaintiff suffered damage as a result of the prosecution

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is
required to prove that The plaintiff suffered damage as a result of the prosecution. In a claim for
prosecution, the plaintiff can thus claim damages on the following three counts:-
 Damage to the plaintiff‘s reputation,
 Damage to the plaintiff‘s person,
 Damage to the plaintiff‘s property.

Malicious civil proceedings

In the case of Darbhangi Thakur v. Mahabir Prasad,[20] it was held that unlike malicious criminal
prosecution, no action can be brought, as a general rule, in the case of civil proceedings even though
the same are malicious and have been brought without any reasonable cause.
In the case of Genu Ganapati v. Bhalchand Jivraj,[21] it was held that following are the essentials to
establish malicious abuse of civil proceedings:-
 Malice must be proved.

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  The plaintiff must allege and prove that the defendant acted without reasonable and probable
clause and the entire proceedings against him have either terminated in his favour or the
process complained of has been superseded or discharged.
 The plaintiff must also prove that such civil proceedings have interfered with his liberty or
property or that such civil proceedings have affected or likely to affect his reputation.

Conclusion
It can be said that the malicious proceedings are that proceedings which are initiated with malicious
intent. The elements (i.e. prosecution by the defendant, absence of reasonable and probable cause,
defendant acted maliciously, termination of proceedings in the favour of the plaintiff and plaintiff
suffered damage as a result of the prosecution) which are necessary to the plaintiff to prove in a suit
for damages for malicious prosecution must be fulfilled. However, on the basis the facts and
circumstances, the Court should decide whether the suit is filed maliciously or not.

Fraud or Deceit in Torts

What is the Tort of Deceit?
When a person intentionally and knowingly deceives another person into an action that damages
them, it is a type of a legal injury that occurs. Deceit specifically requires the tortfeasor to make a
factual representation very well knowing of the fact that it is false, or indifferent or reckless about its
truthfulness, intending that the other person relies on it, and then act in reliance on it, to his own
harm. Under section 421 of the IPC or the Indian Penal Code and 17 of the Indian Contract Act
(ICA), fraud is defined.

What is the meaning of Deceit and Fraud?

Fraud – a false or untrue representation of the fact, that is made with the knowledge of its falsity or
without the belief in its truth or a reckless statement which may or may not be true, with intention to
induce a person or individual to act independent of it with the result that the person acts on it and
suffers damage and harm. In other words, it is a wrong act or criminal deception with an intention to
result in financial or personal gain. In Dr. Vimla vs Delhi Administration [1], it was held that fraud is
an intention to deceive involving deceit and injury to another person as its two elements.
Illustration: False insurance claims made by one to their insurer in case of a motor accident.

Deceit– a tort arising from an untrue or false statement of facts which are made by a person,
recklessly or knowingly, with an intention that it shall be acted upon by the other person, who would
suffer damages as a result. In other words, it is the practice or action of deceiving someone by
misrepresenting the truth. In Ram Chandra Singh vs Savitri Devi [2] it was held that deceit was a
fraudulent misrepresentation that consisted of leading a man into damage by recklessly and willfully
causing him to believe and trust an act according to it.
Illustration: Drawing a cheque and presenting it to the creditor in the knowledge that it will not be
paid.

What is Fraudulent Misrepresentation?

Fraudulent misrepresentation means a lie that is used to trick someone into an agreement which
would cause some harm to them. Misrepresentations can be spoken, written, gestured, or even made
through silence. A claim for fraudulent misrepresentation is found in the tort of deceit.
Example- If a jeweler sells a diamond ring which is later discovered to be a is crystal, then it is a
fraudulent misrepresentation.

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What are the elements of Fraudulent Misrepresentation?
The elements for fraudulent misrepresentation are:
 False representation to the claimant must be made by the defendant,
 the defendant should know that the depiction is false, or reckless as to whether it is true or
false,
 the defendant should intend that the claimant must act in dependence on it,
 the claimant must act in reliance and trust on the representation and suffer loss as a
consequence.

What is meant by Fraudulent Concealment?

Mere non-disclosure when a party has a duty to disclose. The essential elements to establish a prima
facie case of fraudulent concealment are:
 Concealing of a material relevant fact by the defendant,
 the defendant should be under an obligation to disclose the facts to the plaintiff,
 the defendant intentionally must have hidden or concealed the fact with the intent to deceive
the plaintiff,
 the plaintiff must be ignorant of the fact and wouldn‘t have acted or behaved as he did if he
knew about the concealed fact,
 the concealment caused the plaintiff to sustain damage.

Non-Disclosure of Known facts

It is not an actionable fraud wherein material information is known to a party and not to the other
party. Responsibility or duty to disclose acknowledged information arises in which the party with the
expertise of the facts is in a fiduciary or confidential relationship. The inability to disclose a negative
fact that might have a foreseeably discouraging impact on income expected to be created by means
of business is tortious.

Active Concealment of known facts

Intentional active concealment exists where a party knows of the defects in a property, deliberately
conceals them, actively prevents investigation and discovery of material information by way of the
other party, makes misleading statements, does not speak honestly or suppresses facts.In a claim of
fraud that is by a false promise, the essential elements are as follows:
 the defendant should have made a promise intending not to perform or act in accordance with
it,
 the promise must have been made with an intent to defraud the plaintiff, for the purpose of
persuading the plaintiff to depend and rely upon it and act or refrain from acting in reliance
upon it,
 the plaintiff must have been ignorant of the defendant‘s intention and must have acted in
reliance upon the promise and must be justified in doing so,
 as a result of reliance on the promise by the defendant, the plaintiff must have sustained
damage.

Proof of Intent not to perform

When the promise was made, the conduct of a party making a promise either before or after the
promise was made, should be taken into consideration to determine whether there was an intention to
perform or not.

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What is Negligent Misrepresentation?
The essential elements by a negligent misrepresentation for a claim of fraud are:
 the defendant must make a representation as to a past or existing material fact,
 the representation must be untrue,
 the representation should be without any reasonable ground (regardless of the defendant‘s
actual belief) for believing it to be true,
 it must be made with the intent to induce the plaintiff to rely and trust upon it,
 the plaintiff must be unaware of the falsity of the representation, and thus acting in reliance
upon the truth of the representation and must be justified in doing so,
 as a result, damages must have occurred and sustained by the plaintiff.

Difference between Criminal and Civil fraud

Criminal Fraud Civil Fraud

The case is brought forward by either The victim or the aggrieved party brings forward the
the local state or the federal case to the court.
prosecutors.

A person accused intended on The victim has to prove that the person being accused
committing fraud needs to be proved. has misrepresented the facts although he knew that they
were false.

Actual damage may not have occurred. Actual damage needs to have occurred.

Success by the state results in the Success by the plaintiff results in restitution in the form
punishment of the defendant by fine, of damages.
imprisonment, etc.

Examples- Mail fraud, Securities fraud, Examples- Check forgery, pyramid schemes, selling
Tax evasion, etc. fake or counterfeit items on the internet, etc.

What are the essential elements for the Tort of Deceit?

A claimant in deceit must prove the following elements-
False representation- This means that the defendant lied or misrepresented the facts. In Pasley v.
Freeman-
 The plaintiff was dealing in cochineal at the time when the cause of action arose and had a
large stock at hand which he anxiously wanted to dispose of.
 Learning this the defendant said the plaintiff that he knew a buyer who would purchase the
stock of cochineal. The plaintiff asked: ―Is he a respectable and substantial person?‖
―Certainly he is‖ was the defendant‘s reply, knowing well that he was not.
 The plaintiff on his representations faith gave that purchaser 16 cochineal bags on credit
worth around 3,000 sterling pounds.
 When the bill became due, it turned out that the purchaser was insolvent and the plaintiff was
unable to recover his money from the purchaser, the defendant was sued for making a false
representation to him by compensating him.
 The defendant was held liable to the plaintiff as far as he had suffered as a result of the
former‘s false statement about that buyer‘s credit and character.

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Knowledge of falsity- The defendant must know that the representation was false, or at least had no
genuine belief that it was true. In Derry v. Peek-
 An act incorporating a tram company provided that, with the consent of the Board of Trade,
carriages could be moved by animal power, by steam power.
 The directors issued a prospectus stating that the company was entitled to use steam power
instead of horses under the Act. The complainant took shares in this statements faith.
 An act incorporating a tram company provided that, with the consent of the Board of
Trade, carriages could be moved by animal power, by steam power.
 The trading board declined their consent to use steam power and the company was wound up.
 In an action against the directors for false statement, they were held not to be liable for the
misrepresentation as they honestly believed that the statement was true even though they were
guilty of some carelessness in making it.

Acting on the statement- The defendant made the representation with the intent that the plaintiff
should act upon it. In Langridge v. Levy [5]-
 The defendant sold a gun for use by himself and his sons to the plaintiff‘s father, representing
that the gun was made by a well-known manufacturer and safe to use, the son used the gun
that exploded wounding his hand.
 It was held that the defendant was liable to the son because there was a contract between
them, not on his warranty, but for deceit.

Damage by acting on the statement- That the plaintiff acted in reliance on the statement and
suffered damage as a consequence. No action will lie for a false statement unless the plaintiff, in fact,
relies upon it.
In Denton v. G.N. Ry. Co. [6]-
 A train that had been taken off was announced as still running in a railway company‘s current
timetable.
 This was a misrepresentation and a person had missed an appointment by relying on it and the
loss incurred was held to have a deceit action.

What are the Remedies given?

The tort of deceit is a cause of action that enables the victims to recover the financial loss that has
been incurred due to being deceived. These losses can also include the cost of the investigation of the
fraud. The four essentials must be fulfilled and the statement must be both false and dishonestly
made. The leading authority on this point is still Derry v Peek in which Lord Herschell said:
―First, in order to sustain an action in deceit, there must be proof of fraud and nothing short of that
will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1)
knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.‖

What is the Effect of Silence?

Simply remaining silent about something will not in a usual course amount to false representation.
But there are some exceptions to this rule.

Half-truths: It is a statement which only tells a part of the truth. It can be a false representation if the
left out part of the statement makes what is said to be misleading and conveys some other meaning.
Example- If A says, ―I am a good driver. In the past thirty years, I have gotten only four speeding
tickets.‖ This statement is true, but irrelevant if he started driving a week ago.

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Deliberate concealment: Actively concealing information can amount to a false representation.
Example- While selling clothes, Mr. B actively conceals a stain while showing the apparel which the
buyer would otherwise have easily been able to see, he is making a false representation that the fault
does not exist.
Failure to meet statutory requirements: In some circumstances, there is a statutory duty of the
person to reveal some particular information. If in such cases he fails to do so then it can amount to a
false representation.

What are the Damages given for Deceit?

The claimant is entitled to be put back into the position in which he or she would have been in if the
deceit had not taken place. In other words, this means that if, for example, a claimant was led to
believe they were buying a property worth Rs. 10,00,000 but the defendant knew that it was only
worth Rs. 5,00,000, then the claimant is entitled to damages Rs. 5,00,000 and may claim it. This
means that the defendant is liable for all losses directly flowing from their wrongdoing.
In some certain circumstances punitive damages so as to punish the person who defrauded may be
levied. These are usually related to the actual losses suffered, the degree of malice and deceit
showed.

What is it‟s Relationship with Negligence?

It was decided in Hedley Byrne & Co Ltd v. Heller & Partners Ltd [7] , that individuals who make
the statements which they should have known were false a direct result of their carelessness or
negligence, can in certain circumstances, be liable to make compensation for any loss flowing,
notwithstanding the decision in Derry v Peek. In the case of Bradford Equitable B S. v Borders [8], it
was held that in addition, the person who made the statement must have intended for the claimant to
have depended upon the statement. Negligence and deceit vary with respect to the remoteness of
damages and harm suffered. In deceit, the defendant is liable for all losses flowing directly from the
tort, regardless of whether they were predictable or not.
In Doyle v. Olby (Ironmongers) Ltd [9], Lord Denning MR commented, ―it does not lie in the mouth
of the fraudulent person to say that they could not reasonably have been foreseen.‖ So where there is
an unexpected sudden downturn in the property market, an individual liable of deceitful
misrepresentation is liable for all the claimant‘s losses, regardless of whether they have been
increased by such an unforeseen occasion. This is subject to an obligation to alleviate potential
misfortunes. Contributory negligence is no defense in an action for deceit. However proving deceit is
far more difficult than proving negligence, because of the prerequisite for intention.

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 Slander of Title and Goods
Slander
―There is a ghost in the north end of the city that is causing a lot of trouble to the inhabitants. His
chief haunt is in a vacant house on St. John Avenue, near to Main. He appears late at night and
performs strange antics, so that timid people give the place a-wide berth. A number of men have
lately made a stand against ghosts in general, and at night they rendezvous in the basement and close
around the haunted house to await his ghost ship, but so far he still remains at large.‖
The above paragraph is an excerpt from a newspaper article published by The Manitoba Free Press
Company in regard to Rachel Miriam Gomez Nagy‘s property. Nagy filed a suit against Manitoba
for slander of title (Manitoba Free Press Co. v. Nagy, (1907) 39 S.C.R. 340)
We all have been in dilemmas where we had to choose between Domino‘s and Pizza Hut or
McDonald‘s and Burger King and we all usually tend to prefer one over the other.
The 1980s witnessed the infamous aggressive ad campaigning by both McDonald‘s and Burger
King. Burger King advertisements stressed their flame-broiled burgers over McDonald‘s offerings
which were fried. Therefore, McDonald‘s documented a claim in 1982, suing Burger King for false
promoting, guaranteeing that they regularly steamed and warmed their burgers in microwaves. The
claim was later rejected. Today, McDonald‘s and Burger King are as yet bumping for their share of
the market in the fast food showcase, in spite of the fact that the developing rush of gourmet burger
joints makes it a lot harder battle. More contenders imply all the more promoting efforts, which
implies the following notorious burger war business is presumably practically around the bend.
What is Slander essentially?
Slander is a false and defamatory statement by spoken words or gestures tending to injure
the reputation of another. It is always expressed in some temporary form.

What qualifies as Slander?

In order to file a suit for Slander, one must prove the following:
1. The statement must be false and defamatory;
2. The statement must refer to the plaintiff; and
3. The statement must be published.

How can one judge if the statement is a Slander or not?

A statement can be divided into two categories: A statement that is undoubtedly a slander ie. the
statement in its original nature is defamatory. The statement made in this category either exposes the
plaintiff to hatred, contempt and ridicule, tend to injure him/her profession/trade or cause him to be
shunned by others in the neighbourhood.
 Making and publicly exhibiting an effigy of a person, calling it by the person‘s name, and
beating it with shoes, are acts amounting to defamation (Plumber Dass v. Dwarka Prashad,
(1870) 2 NWP 435).
 Allegations that the plaintiff managing director of a co-operative Society indulged in
malpractices and was having illicit intimacy with several ladies were held to be per se
defamatory.
 In Shoobhagee Koeri v. Bokhori Ram, (1906) 4 CLJ 393, A wrote letters to the husband of X,
in which he alleged X was a witch and had by her sorcery caused the death of some relations
of A. He also made similar statements to their castemen. It was held that A was liable.
The statements which are innocent in their primary sense but may communicate defamatory
meaning, if it is likely to be understood and in fact, understood in the light of certain existing facts
known to the person to whom the statement has been made i.e.Innuendo.
 In Cassidy v. Daily Mirror Newspaper Ltd. (1929)2 KB 231 The defendants published a
photograph entitled ―Mr. M.Corrigan, the racehorse owner and Miss ‗X‘ whose engagement is

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 announced‖ Mr. C had authorised this title. The defendant did not know the plaintiff‘ s
existence. She was and was known by her friends as the wife of Mr.C. She pleaded that the
statement implied that she was an immoral woman cohabiting with Mr. C, proved injury to
her reputation on that ground and recovered 500 Sterling Pound as damages.
 In Tolly v. J.S.Fry and Sons Ltd., 1931 AC 333 An amateur golf champion recovered
damages because the defendants, a firm of chocolate manufacturers, had published a
caricature on him-a packet of their chocolate protruding from his pocket, as an advertisement
of their goods. The innuendo was in effect that he had consented to the use of his portrait as
an advertisement for reward and had prostituted his reputation as amateur golfer. The
caricature of the plaintiff, innocent in itself as the caricature, lent itself to an adverse
construction, being embodied in an advertisement.

Slander of Title
What is Slander of Title?
When an untrue and disparaging statement is published about another person‘s property, movable or
immovable that further goes on to impacting negatively on the property is called Slander of Title.
On the off chance that lands or chattels are going to be sold by an auction and a man announces in
the auction room, or somewhere else, that the seller‘s title is blemished, that the grounds are sold, or
that the belongings are stolen property thus deflects individuals from purchasing, or makes the
property be sold at a less cost than it would somehow have figured it out. This gives by all
appearances guarantee for compensation for damages.

What must you prove in order to claim Slander of Title?

In order to sustain an action for slander of title, the plaintiff must prove the following essentials:
The statement or representation was false.

 Who carries the burden of proof?

The plaintiff has the burden to establish that the disparaging statement was false and untrue. If the
statement is true; if there is really an infirmity in the title as is suggested or if there is the
advancement of one‘s legitimate interests, no action will lie.

 Is malice necessary to hold the case up?

The false statement must be such as is calculated to cause harm to the plaintiff. A bona fide assertion
of the defendant‘s title to the property, however mistaken, if made for the protection of one‘s own
interest or some other right purpose is not malicious. No action will lie in a case where there is no
malice. The plaintiff must prove that the false statement resulted in actual pecuniary loss and damage
to one‘s economic interests.
An individual who goes to the intending occupants of a specific building and deters them from taking
the building on lease by owning false expressions with respect to its livability and security is at risk
in tort on the off chance that he is incited by malice. The tort closely resembles slander of title falling
inside the expansive portrayal of damaging deception.
The defendant, after discovering that the plaintiff was attempting to sell his home, put a vast sign on
bordering land which read to some degree: ―Notice. Anybody purchasing No. 20 Malibu is
purchasing lawsuit.‖ subsequently, the plaintiff was unfit to sell the house. The defendant was held
liable for slander of title.
On the off chance that lands or chattels are going to be sold by closeout and an individual announces
in the auction room, or somewhere else, that the seller‘s title is deficient, that the terrains are sold, or
that the belongings are stolen property, thus stops individuals from purchasing, or makes the property
be sold at a cost lesser than it would some way or another have understood, this is a slander upon the
title of the proprietor, and gives him at first sight guarantee for compensation in damages.

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In Ratcliffe v. Evans, [1892] 2 QB 524 The plaintiff had for a long time carried on the business of an
engineer and boiler producer under the name ‗Ratcliffe and Sons‘. The defendant was the owner of
the ‗County Herald‘, a Welsh paper. The defendant in his paper, distributed dishonestly and
malignantly, that the plaintiff had stopped to carry on his business and that the firm ‗Ratcliffe and
Sons‘ no longer existed. It was held that the defendant was liable in damages as his announcement
unfavorably influenced the plaintiff‘s business and prompted loss of custom. The proof of general
loss of business was adequate to help the action.
 The statement was published; (The false statement must be published to some person other
than the plaintiff) (The statement may be oral or written or even conduct conveying a false
impression may be sufficient)
 The statement was made maliciously i.e. with the intent to injure the plaintiff or with some
dishonest or improper motive;
 The plaintiff suffered damage as a consequence.

What are the Remedies available in a Slander of Title Case?

The remedies of injunction and declaratory judgment are more appropriate than an action for
damages.
A plaintiff must typically show what are called ―special damages‖ to prove his or her slander of title
case. This means that a defendant might knowingly make an untrue statement about the plaintiff‘s
property, but if the statement did not cause ―special damages,‖ the slander of title claim will fail.
Special damages in slander of title claims include any provable economic damages resulting from the
slander, for example a cancelled lease, and the expenses necessary to clear up the slander, including
legal fees. Note that the ―special damages‖ legal fees are not what the plaintiff pays his or her
attorney to sue for slander of title, but prior legal fees paid to, for example, clear a public record or to
get a court‘s declaratory judgment about who owns the property.

What are the defenses to Slander of Title?

Privilege
A defendant can claim the defense of privilege in two very limited circumstances. The first
circumstance is called a conditional privilege. A conditional privilege to the slander of title exists
when a defendant has a reasonable basis to believe what he is saying about the plaintiff‘s property.
Just like the requirement of ―malice‖ in some states, the conditional privilege is just another way of
saying the defendant should have known the statement was untrue or had no reasonable basis to
believe it was true.
Another privilege, which exists in all jurisdictions, is the absolute privilege to make otherwise
slanderous statements against the plaintiff‘s title in judicial proceedings, for example, statements
made during litigation. If either an absolute or a conditional privilege applies, the plaintiff will lose
the slander of title case even if all of the other elements are satisfied.
Statutory Authority
If an act is authorized by a statutory enactment or a law passed by the legislature, then the defendant
cannot be held liable for damages resulting in the course of such an act.

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How is Disparagement different from Defamation?
DISPARAGEMENT DEFAMATION
Protects property interests Protects Reputation
Required to prove falsity to establish a prima
Falsity of a defamatory publication presumed
facie case.
Showing of an intent to injure required in
Defendant‘s intent irrelevant at common law
disparagement actions.
Courts have always required proof of actual
Proof of actual damage is not always required
damage to sustain a suit for disparagement
Both torts have always required a derogatory publication and have had substantially the same
common law privileges.

Slander of Goods
A makes a false statement that B‘s goods are an infringement of C‘s trade mark and warns B‘s
customers not to buy them. A is liable to B in an action for slander of goods.
It may be defined as ―a false statement, whether by word of mouth or in writing, disparaging a man‘s
goods, published maliciously and causing him special damage‖.

What has to be proved to file a suit for Slander of Goods?

To maintain an action for SLANDER OF GOODS, it is necessary to prove the following essentials:
 The defendant disparaged the goods of the plaintiff;
 The disparagement was false;
 The disparagement was made maliciously;
 The disparagement was published, orally or in writing, to some person other than the plaintiff;
 The disparagement resulted in special damage

How is Slander of Goods protected under Law?

 Section 36A(1)(x), Monopolies and Restrictive Trade Practices (MRTP) Act, 1969 which
stated that whoever gives false or misleading facts disparaging the goods, services or trade of
another person would be engaging in an unfair trade practice.
 Section 2(1) (r) (1) (x), Consumer Protection Act, 1986

Can boasting of one‟s own goods result in Slander of others‟ goods?

The offended party manufactured and sold food items under the name ―Mellin‘s Infants‘ Food‖. The
litigant, a chemist, sold the offended party‘s food at his premises. He acquired tins of child
nourishment made by the offended party to which he appended a mark, outwardly of the parcel,
expressing that ―Dr. Vance‘s Prepared food for Infants was the most healthful and nutritious for
infants and invalids than any preparation that has been offered to the public‖. Dr. Vance‘s Prepared
Food for Infants was in certainty the litigant‘s very own image in which he had a proprietary interest
The defendant‘s conduct did not amount to trade libel or slander of goods. It was held that his
announcement would not bolster a reason for action since it was simply a bit of puffery, proposed
more to advance the closeout of the defendant‘s items than to disparage the plaintiff‘s party‘s food.
The announcements were too general to establish an action.
Boasting with figures showing poor results of competitor
In De Beers Abrasive Products Ltd. v. International General Electric Co. of New York Ltd., [1975] 2
All ER 599, the plaintiffs and the defendants manufactured and distributed abrasives (grinding
instruments) made from diamonds. The abrasives of the plaintiffs were made from natural diamonds,
whereas those of the defendants were made from synthetic diamonds.

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The defendants published a brochure wherein it was stated that the abrasive ―MBS70‖ manufactured
by them was found, through scientific laboratory testing, to be more effective in cutting concrete
than the plaintiffs‘ rival product ―Debdust‖. The brochure showed the results of comparative
scientific tests on the products of the plaintiffs and defendants.
The plaintiffs brought an action for slander of goods alleging that the statement was false and
disparaged the goods of the plaintiff as being of poor quality. The defendants contended that the
pamphlet was a mere idle puff and the claim of the plaintiffs should be struck out.
The court made it clear that a trader is entitled to ―puff‖ his goods. By that reasoning, it is
permissible to claim that one‘s goods are ―the best in the world‖. But it is not permissible to
denigrate a rival‘s goods by making untrue claims that a reasonable person would take seriously.
The court held that the claims contained potential for liability and the report published was intended
to be taken seriously and could not be dismissed as mere puffery.

Does False Advertising of one‟s own good result in Slander of others‟ Goods?
The offended party and respondent were the proprietors of papers circling in a similar region. The
litigant distributed an explanation that ―the course of‖ his paper was ―20 to 1 of some other weekly
paper in the district‖ [there being just a single such paper, for example, the plaintiff‘s] and ―where
others count by the dozen, we count by the hundred‖. This was false and was found to stigmatize
equals in possibly making sponsors change far from different papers to that of the litigant. The
announcement was held to be significant.
It was held that those announcements were not an unimportant puff but rather added up to
stigmatization of the offended party‘s paper and were noteworthy on confirmation of genuine harm.

Conclusion
Eventually, recognizing and defining the ownership interest at issue and placing it in the appropriate
context is essential for lawyers involved with potential slander of title. Such a determination will also
help make sure that the amount of special damage, among other associated issues, is accurate. Whilst
the property interest aspect of title slander has always been essential and often not disputed, it is
important to acknowledge that such property interests can be loosely defined, making the standing
obstacle easy to overcome.

The Tort of Passing Off

Meaning of passing off
Passing off means that the defendant-
a- by making a false representation,
b- sells goods,
c- with the intention to deceive the purchaser, and,
d- the plaintiff believes that the goods being sold by are of the defendant.
The protection of commercial goodwill is the objective of the tort of passing off. It ensures that
exploitation of the people‘s business reputation does not take place. ―No man can have any right to
present his goods as the goods of someone else‖ is the underlying philosophy of the tort of passing
off.
In countries like the UK, New Zealand and Australia where common law is practiced, the tort of
passing off is a common law tort that is used for the enforcement of unregistered trademark rights. A
trader‘s goodwill is protected by the tort of passing off from misrepresentation. It not only prevents
misrepresentation by a trader of his goods or the services being provided but also holds out some
connection or association with another when it is false.

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Law of Passing off in India
Actionable under common law, the law of passing off in India is mainly to protect the goodwill that
is attached to unregistered trademarks. One should not get benefit from the labor of another person is
founded in the basic principle of law.
In the Trademarks Act, passing off is defined in section 27 (2), 134 (1) (c) and Section 135. The
jurisdiction or power of the district courts in the matter of passing off suits, to try the suit or issue
injunction is referred in section 134(1)(c). Establishment of the case and the irreparable injury or loss
causes is done by the plaintiff.
No person is entitled to represent the goods of another person as his own. Using of any signs,
symbols, marks, devices or some other means wherein a direct false representation to a person is
permitted.
Passing off through deception, was a kind of unfair trade or actionable unfair trade through the
means of which a person obtains economic benefit of the established reputation by another person.
And thus uses in a particular business or trade to be benefitted by it. Such action is regarded as an
action for deceit. In Wockhardt Ltd. Vs. Torrent Pharmaceuticals [1], it was passed in a judgment
that intention to defraud or deceive, should not be considered to analyze misrepresentation.

Passing Off and Trademark Law

For passing off is a cause of action in a form of intellectual property enforcement which is against
the unauthorized use of a get-up. The term get up means the look-and-feel or the external appearance
of a product which may include some marks used. These are considered similar to the products of
another party and includes unregistered or registered trademarks.
An action for a trademark in passing off where infringement based on a registered trademark is of a
particular significance as it is unlikely to be successful. This is as a result of the differences arising
between registered mark and the unregistered trademarks.
A statutory law such as the United Kingdom Trade Marks Act 1994 in passing off and is a common
law cause of action, providing for the enforcement of registered trademarks through infringement
proceedings.
Passing off does not give any names, marks, get-ups or other indices monopoly rights. It does not
recognize them as a property in its own right. Passing off and trademark law manage overlapping
factual circumstances, but deal with them in different ways. Instead, the passing-off law is designed
to avoid misrepresentation in the course of public trade. Example- as in the case of some sort of
association between the businesses of two traders.
In the trade mark decision of Trade Mark Opposition Decision in 2001, two brands of confectionery
both named ―Refreshers‖, one made by Swizzels Matlow and the other by Trebor Bassett that had
existed since the 1930s. It was held that it would deceive a purchaser as to certain things like their
source for some items but not for others. Both coexist in the marketplace.

Essentials of Passing Off

To make one liable for the tort of passing off, the plaintiff must prove the following-
 His goods were known to the public by some mark, distinctive name, appearance, get up, or
badge.
 The defendant made a spoken or written representation by the conduct of others or by word of
mouth.
 The use or initiation of the name by the defendant misleads the public and made them believe
that the goods by the defendant were of the plaintiff.
 In the ordinary course of business, the defendant‘s conduct is likely to mislead or deceive the
public at least in case of unwary or incautious, if not the intelligent or careful purchaser.

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The three fundamental elements often referred to as the Classic Trinity as restated by the House of
Lords in the case of Reckitt & Colman Products Ltd v Borden Inc. It stated the three elements-
1- Goodwill owned by a trader: Firstly the plaintiff must establish reputation or goodwill attached
to his services or goods in a suit for passing off.

2- Misrepresentation: The plaintiff must prove a misrepresentation to the public by the defendant.
That means that it must be likely to lead the public into believing that the plaintiff has offered the
goods and services.
3- Damage to goodwill: The plaintiff needs to demonstrate that a loss has been suffered due to a
belief that the services and goods by the defendant are those of the plaintiff.

Modern Elements of Passing off

Lord Diplock in the case of Erven Warnink Vs. Townend [3], gave the modern characteristics of a
passing off action. The essential characteristics are-
 Misrepresentation.
 Made in the course of trade by a person.
 The ultimate consumers of goods or services or to prospective customers of his or supplied by
him.
 That is calculated as such to injure the goodwill or business of another trader.
 That causes actual damage to the goodwill or business of the trader by whom the action is
brought.
The concept of passing off as stated above can be explained as in the case of Honda Motors Co. Ltd
V Charanjit Singh & Others [4],
Facts of the case: The plaintiff had been using the trademark ―HONDA‖ with respect to the
automobiles and power equipment. The defendants for its pressure cookers had started using the
mark ―HONDA‖. The plaintiff brought an action of suit against the defendants for passing of the
business of the plaintiff.
Held: The judgment held that the defendant‘s use of the mark ―Honda‖ could not be said an honest
adoption. The usage of the mark by the defendant was likely to cause confusion in the minds of the
public. The application of the plaintiff was therefore allowed.

Goodwill
The action of passing off would lie where a real possibility of the damage to goodwill to trading or a
business activity takes place. The plaintiff thus needs to establish goodwill in the goods or services in
his business with which the public or the trade associated with the defendant‘s activities. It need not
be established in the minds of each and every member of the relevant public but must be in a
significant section of it.

Deceptive Similarity
Pertinent judgments on the meaning of deceptive similarity and the facts that need to be considered
that suggest whether there is a deception in the products or services of the parties concerned are:
(a)- When placed together, two marks may exhibit different differences, but both of them may have
the same main idea on the mind, could be deceived a person who is familiar with one mark and does
not have the two side by side for comparison. If the goods were permitted to be impressed with the
second mark, in the belief that he was dealing with goods bearing the same mark as he was familiar
with.
(b)- In the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals [5], it was stated that in an
action on the basis of unregistered trade mark for passing off, to identify the deceptive similarity, the
factors to be considered are-

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(i)- Nature of the marks that means whether the marks are label marks, word marks or composite
marks (both label and word).
(ii)- Degree of resemblance between the marks. If it is phonetically similar then the idea is similar.
(iii)- Nature of goods with respect to their usage as a trademark.
(iv)- The similarity in the character, nature, and performance of the goods of the competitors.
(v)- Class of the purchasers who are to likely buy the goods or services with the marks they require.
Their intelligence or education as a degree of care that they are likely to exercise in purchasing those
goods.

Loss Due to Passing off

It is of utmost importance that the party that is claiming the benefit under passing off might have
incurred a loss due to the opposite party‘s action of the passing of their goods or the services as that
of the former party. It is essentially important to be observant and vigilant about one‘s right as a
service provider or as a trader. Initiation of an appropriate action against illegitimate users to save
one‘s identity of the business, the money, effort and time involved into creating a law is for those
who are aware of their rights and have the means for its enforcement.
Importance of Passing off
Trademarks provide protection to registered goods and services whereas the action of passing off
provides protection to the unregistered goods and services. The most important factor is that in both
cases, the remedy is the same. But the distinction lies on the fact that trademarks are available only
for registered goods whereas passing off is available for unregistered goods. In the case of Durga
Dutt vs. Navaratna Pharmaceutical [6], the distinction between passing off and infringement was set
by the Supreme Court.

Difference between Passing off and Infringement

Passing off Infringement
Passing off is available to unregistered goods Statutory remedy conferred on the owner of a
and services. registered Trademark.
The use of the trademark of the plaintiff by the The use of the trademark of the plaintiff by the
defendant is not essential. defendant is essential.
The defendant may escape liability if
sufficiently distinguished from the plaintiff‘s The defendant cannot escape liability.
goods is present.

Remedies for Passing Off

The remedies granted in case of the tort of passing off are-
1. Injunction
In B K Engineering Co. v. Ubhi Enterprises [7],
Facts- The appellants manufactured bicycle bells using their house mark B.K. with their name
stamped on the product as B K Engineering Co. Under the trademarks of venus and crown, these
products were manufactured. The respondents had started manufacturing bicycle bells marked as
B.K.-81 which was also stamped on the product U.B.H.I. Enterprises Regd. An application for an
interim injunction was made by the appellants, seeking to restrain the opposite party from marketing
their products under the said trademark.
Held- Interim relief was declined by a single judge. In allowance to the appeal in contrast to the
refusal of the injunction the Court held that:
(i) the adoption by the defendants of B.K.-81 would lead a person to think that it is a product of
either a business associate or an affiliation of B.K. Engineering Co.

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(ii) there is a risk that some consumers would perceive the connection between the defendant and the
plaintiff.
(iii) the defendants cannot be allowed of the plaintiff‘s popularity in cash of their goodwill.
(iv) if it is not prevented then it would harm the plaintiffʼs business.
(v) sufficient grounds for the granting of a temporary injunction is present.

2. Damages or Compensation
In Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. co. [8], it was stated that:
(i) Under the Law of Torts, a common law remedy being an action in substance of deceit is an action
for passing off.
(ii) When a deceitful act is committed, then the person deceived would have a cause of action in his
favor.
(iii) When a person passes off his goods or services as that of another person then he commits the act
of such deceit.

3. Account of profits
(i) The purpose of the profit account is not to punish the defendant but to avoid unjust enrichment
resulting from passing off.
(ii) An account shall be limited to the actual profits made and attributable to the infringement.
(iii) The plaintiff shall take the business of the defendant as it is.

Procuring a Breach of Contract

Introduction
In Lumley v Gye [1853] EWHC QB J73 A singer named Johanna Wagner was hired for three
months by Benjamin Lumley to sing exclusively at Her Majesty‘s Theater. Frederick Gye, who ran
the Covent Garden Theater, promised to pay her more to break her contract with Mr. Lumley.
Although an injunction was issued to prevent her from singing at Covent Garden, Gye persuaded her
to ignore it. Therefore, Lumley sued Gye for damages.
The above case is a foundational English tort law case, heard in 1853, in the field of economic tort. It
held that one may claim damages from a third person who interferes in the performance of a contract
by another.

What is a Breach of Contract?

It is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for
exchange is not honored by one or more of the parties to the contract by non-performance or
interference with the other party‘s performance.
Breach of contract may arise in two ways:
(1) Actual breach of contract
(2) Anticipatory breach of contract

Anticipatory breach of Contract

In an example, where Mr. Sherlock contracts with Mr. Watson on 25th August 2018 to supply 15
kilos of Rice for a specified sum on 25th September 2018 and on 12th September 2018 informs Mr.
Watson, that he will not be able to supply the said cotton on 25th September 2018, there is an
express rejection of the contract.
In another example, where Mr. Darko agrees to sell his white horse to Mr. Elric for ` 50,000/- on
14th January 2018, but he sells this horse to Mr. Armstrong on 9th January 2018, the anticipatory
breach has occurred by the conduct of the promisor.

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An anticipatory breach of contract is a breach of contract that occurs before the time fixed for
performance has arrived. When the promisor completely refuses to fulfill his promise and signifies
his unwillingness even before the time for performance has arrived, it is called Anticipatory Breach.

Anticipatory breach of a contract may take either of the following two ways:
 Expressly by words are spoken or written, and
 Impliedly by the conduct of one of the parties.

Is Anticipatory breach of Contract protected under Law?

Section 39 of the Indian Contract Act deals with anticipatory breach of contract and provides as
follows: ―When a party to a contract has refused to perform or disable himself from performing, his
promise in its entirety, the promisee may put an end to the contract, unless he has signified, but
words or conduct, his acquiescence in its continuance.‖
What are the effects of Anticipatory breach of Contract?

Effect of anticipatory breach: The promisee is excused from the performance or from further
performance. Further, he gets an option
 To either treat the contract as ―rescinded and sue the other party for damages from breach of
the contract immediately without waiting until the due date of performance; or
 He may elect not to rescind but to treat the contract as still operative, and wait for the time of
performance and then hold the other party responsible for the consequences of non-
performance. But in this case, he will keep the contract alive for the benet of the other party as
well as his own, and the guilty party, if he so decides on re-consideration, may still perform
his part of the contract and can also take advantage of any supervening impossibility which
may have the effect of discharging the contract.

Actual breach of Contract

Unlike the anticipatory breach, it is a case of refusal to fulfill the promise on the scheduled date. The
parties to a lawful contract are bound to fulfill their respective promises. But when one of the parties
breaks the contract by refusing to fulfill his promise, a breach is said to have been committed. In that
case, the other party to the contract obtains the right of action against the one who has refused to
fulfill his promise.

Actual Breach of Contract under Law

Section 37 of the Indian Contract Act,1872 provides that the parties to the contract are under
obligation to perform or offer to perform, their respective promises under the contract, unless such
performance is dispensed with or excused under the provisions of the Indian Contract Act or of any
other law.

When is an Actual breach of contract committed?

At the time when the performance of the contract is due
For example, Mr. Vader agrees to deliver 130 bags of wheat to Mr. Yoda on March 21, 2018. He
failed to supply Mr. Yoda with 130 bags of wheat on the said day. This is an actual breach of
contract. Mr. Vader committed the breach at the time the performance is due.

During the performance of the contract

Actual breach of contract also occurs when one party fails or refuses to fulfill its obligation under it
by an express or implied act during the performance of the contract.

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What is Tortious Interference?
Wrongful or tortious interference with contracts refers to a situation in which a third-party
intentionally causes a contracting party to commit a breach of contract. This may be accomplished
through inducement or by disrupting a party‘s ability to perform their contractual obligations. The
purpose of tortious interference laws is to allow parties the freedom to contract with one another and
fulfill their contractual obligations without third-party meddling.
In Pepsi Foods v. Bharat Coca-Cola Holdings Pvt. (1999) Delhi High Court, The plaintiffs have filed
a suit for declaration and permanent injunction against the defendants. In this suit, the plaintiffs have
also prayed for the grant of an injunction during the pendency of the suit. The plaintiffs broadly
categorized the illegal and unethical actions of the defendants in six heads, which are reproduced
below:
 Inducing by unlawful means, groups of key marketing and other strategic employees of the
plaintiffs to breach and/ or terminate their employment contracts with the plaintiffs and enter
into employment contracts with the defendants.
 Inducing by unlawful means, employees of Pepsi‘s independent bottlers, into breaking/
breaching their contracts.
 Inducing by unlawful means, the independent business consultants under contract with the
plaintiffs to break/breach their contracts with the plaintiffs.
 Inducting by unlawful means, the distribution partners of the plaintiffs to breach their
distribution agreements/arrangements with the plaintiffs and enter into similar
agreements/arrangements with the defendants.
 Inducing by unlawful means, institutional accounts to breach their marketing and sponsorship
agreements/arrangements with the plaintiffs and enter into similar agreements/arrangements
with the defendants.
―Post-employment restrictions were held to be invalid and violative of Article 19 (1)(g) of the
Constitution‖. Negative covenant in contract restraining employee from engaging or undertaking
employment for twelve months after leaving the services of the plaintiff was held to be contrary and
in violation of Section of the Indian Contract Act, 1872 and injunction was declined.

Who is a Tortfeasor?
The third-party interferer, called the ―tortfeasor,‖ is usually an individual that was not a party to the
contract and is interfering for his own financial gain. For this reason, the plaintiff‘s remedy will be
in tort law, rather than contract law. The plaintiff (the non-breaching party to the contract) will have
to show that the tortfeasor acted intentionally, both with regards to his own actions and the resulting
contractual breach (meaning he must have known about the contractual relationship and caused the
breach anyway).

What does Inducement in Law mean?

An advantage or benefit on the part of an individual that precipitates a particular action.
In contract law, the inducement is a pledge or promise that causes an individual to enter into a
particular agreement. Induction to buy is something that encourages an individual to buy a particular
item, such as the promise of a price reduction.
The plaintiff had a contract with farmers on a particular route to transport their milk to the creamery
of the defendant. The defendant sent a letter to the farmers doing business with the plaintiff,
informing them that only milk picked up by their own trucks would then be accepted at the creamery.
The farmers continued to give milk to the plaintiff until the defendant refused to accept milk from
the plaintiff who was forced to discontinue his route because he was unable to find another market.
The plaintiff takes action for the wrongful procurement of a contract breach. Notwithstanding the
verdict in favour of the plaintiff, the trial court gave a judgment of no cause of action. Held on appeal
that the defendant‘s act of persuading a breach of contract, whether to injure the plaintiff or to benefit

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himself, was malicious and actionable. His refusal to accept further deliveries from the complainant
was wrong because it was done for the unlawful purpose of causing a breach of the latter‘s contract
with the farmers, which was expressed in his letters to them. The defendant is liable even though the
plaintiff‘s proximate cause of loss was his inability to find another market (Wilkinson v. Powe, 1
N.W. (2d) 539 (Mich. 1942)).
In general, an action cannot be maintained for inducing a person to breach his contract with another.

Inducement as a Tort
The classic form of this tort, as featured in Lumley v Gye, involves persuading the defendant to
breach the contract partner of the claimant. Subsequently, courts accepted varieties of this tort, some
of which focused not on induction but prevention, and one of which focused on interference rather
than induction. This uncertain ambit resulted from the failure to identify the other major general
economic tort namely the unlawful means tort. OBG re-asserts the classic scope of this tort, rejecting
the modern varieties (most of which would now be covered by the unlawful means tort) and
restricting liability to those claimants who have actual knowledge of the contract which they seek to
persuade the claimant‘s partner to breach.
Despite being suggested that the tort today is almost unrecognizable as a descendant of its
ancestor, Lumley v Gye still provides the essential foundation for the modern action. A helpful
statement of the tort was offered in Crofter Hand-Woven Harris Tweed v Veitch:
If Mr. Rick has an existing contract with Mr. Morty and Mr. Walter is aware of it, and if Mr. Walter
persuades or induces Mr. Rick to break the contract with resulting damage to Mr. Morty, this is
generally speaking, a tortious act for which Mr. Walter will be liable to Mr. Morty for the injury he
has done him. In some cases, Mr. Walter may be able to justify his procuring of the breach of
contract.

The elements of A contract between Mr. Rick and Mr. Morty;

 Mr. Walter‘s knowledge thereof;
 Mr. Walter‘s persuasion or inducement for Mr. Rick to breach the contract with Mr. Morty;
 Resulting damage; and
 The defence of justification will be considered in turn.

The contract between Mr. Rick and Mr. Morty

There must be a contract on foot; inducing someone not to enter into a contract is not actionable. The
contract must be valid, enforceable and not voidable or otherwise defective cases involving mistake,
a lack of capacity and contracts invalid for being contrary to public policy did not give rise to the
tort.

Knowledge
The defendant must know of the contract between Mr. Rick and Mr. Morty. While ―there need not be
knowledge of the precise terms of the contract,‖ an appreciation of the broad nature of the
contractual relationship is required. Once that knowledge exists, ―the intervener is sufficiently fixed
with notice that he interferes at his own risk.‖ Inducement and breach The defendant must then
induce or procure Mr. Rick to breach their contract with Mr. Morty. Any breach is sufficient.

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Is malice a necessary element?
While malice is not a necessary element, a degree of deliberateness or intention is required —―mere
negligent interference is not actionable‖. The scope of this element and the requisite directness is an
area of jurisprudential uncertainty. In a series of British cases in the second half of the twentieth
century, liability was significantly expanded to the extent that the tort could be established with
indirect interference with a contract‘s performance. In 2008, the House of Lords reversed this trend
and emphasized the need for an intentional procurement of the breach.
Cooley on Torts, 4th Ed. (1932) p. 360; Hartman v. Green, 190 So. 391 (La. 1939). The cases are
numerous, however, which held that if such an inducement be malicious if it is made with knowledge
of the contractual relations between the parties, and if it is without justification, an action in tort will
lie. The principal case, Wilkinson v. Powe, supra, is in accord with this ruling. The malice necessary
for the maintenance of an action in such cases is not actual malice or ill will, but rather the
intentional doing of an act without justification or excuse. Thus it is of no consequence whether the
motive of the one who induced the breach was to gratify spite by doing harm to another or to benefit
himself.
In a case where the plaintiff and the defendant submitted competitive bids to furnish 5 Black No. 1
for ink, the plaintiff‘s sample having the highest rating and the lowest price, and the ink maker who
tested all samples submitted advised the Bureau of Engraving and Printing to reject all bids on that
type of ink, to order correspondingly larger quantities of No. 7 Hard Black, and to accept the
defendant‘s bid on that type of black, the court held that since the defendant had a contract with the
ink maker to produce No. 7 Hard Black according to a process formulated by the ink maker and to
pay him for the use of such process as long as it was found to be commercially advantageous, the
jury might find that the ink maker‘s motive in rejecting the plaintiff‘s bid was to benefit himself, and
that such motive was induced by the acts of the defendant. The court said that the word ―malicious‖
did not necessarily mean personal ill will, ―but merely a wrongful purpose to injure, or to gain some
advantage at the plaintiff‘s expense.‖ It is to be noted that the action, in this case, was for malicious
prevention of entrance into a contract rather than malicious interference with an already existing
contract.
In Wade v. Culp, 23 N.E. (2d) 615 (Ind. 1939) the court held that action for maliciously inducing
breach of contract as based on the intentional interference without justification rather than on the
intent to injure.
In the minority by far are cases such as Caskie v. Philadelphia Rapid Transit Co., 344 Pa. 33, 5 A.
(2d) 368 (1939) which hold that malice necessarily implies a wanton disregard for the rights of
another; and that there can be no recovery in an action of this type against one who is seeking simply
to enforce what he regards as his own rights. The court in the Caskie case defined malice as ―that
spirit of evil which sometimes grips individuals and nations and motivates those who delight in
doing harm to others.‖
A similar decision was reached in United States v. Newbury Mfg. Co., 36 F. Supp. 602 (Mass. 1941)
where the plaintiff was not permitted to recover in the absence of fraud or deceit. Fraud or other
tortious act was also held necessary to maintain the action in Guida v. Pontrelli, 186 N.Y. Supp. 147,
114 Misc. Rep. 181 (1921) and Turner v. Fulcher, 165 N.Y. Supp. 282 (1917)

Damage
Damage must be proven or inferred, although it is sufficient for the plaintiff to demonstrate ―the
likelihood of more than nominal damage resulting‖ from the complained of conduct. There must also
be a minimal nexus between the defendant‘s conduct and the damage — in one case, the damage
would have been sustained in any event, so the action failed.

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What is Fraudulent Inducement?
If one party in an agreement convinces another to sign a contract based on false information, this is
called fraudulent inducement. When fraudulent inducement causes some form of injury to the party
that signed based on a lie, they have the right to pursue legal action.
Usually, this type of inducement takes place before the contract is signed. In the case that fraudulent
inducement is proven, the injured party can rescind the agreement or seek damages after the contract
has been completed.
Fraudulent inducement is very important in contracts like loan agreements, employment contracts,
and others. It usually happens when one side of the contract convinces the other to sign using lies or
trickery. This can be done with threats as well. If a bank tells someone that they have to sign a
mortgage contract or they will lose their car, this is considered fraudulent inducement if that
consequence is false.
Contract lawyers are a great resource when considering signing a contract or forming one of your
own. They can help avoid illegal forms of inducement, whether intended or accidental. Contract law
is complicated, so it‘s better to enlist the help of a lawyer than trying to handle it yourself.

How to prove Fraudulent Inducement?

It can be tough to prove fraudulent inducement for the following reasons:
 To be considered fraud, the fraudulent statements must have been presented as facts and not
opinions.
 There must be proof that the injured party relied on the false statements.
 Integrated contracts make it even more complicated to prove fraud.
 The court must be provided with a persuasive record of the contract and its fraudulent
statements.
Note: An agreement is integrated when the parties adopt the writing or writings as the final and
complete expression of the agreement.

Does Misrepresentation amount to Inducement?

The misled party must show that he relied on the misstatement and was induced into the contract by
it.
In Attwood v Small, Small, the seller, made false claims about the capabilities of his mines and
steelworks. The buyer, Attwood, said he would verify the claims before he bought, and he employed
agents who declared that Small‘s claims were true. The House of Lords held that Attwood could not
rescind the contract, as he did not rely on Small but instead relied on his agents. Edgington v
Fitzmaurice confirmed further that a misrepresentation need not be the sole cause of entering a
contract, for a remedy to be available, so long as it is an influence.
A party induced by a misrepresentation is not obliged to check its veracity. In Redgrave v
Hurd Redgrave, an elderly solicitor told Hurd, a potential buyer, that the practice earned £300 pa.
Redgrave said Hurd could inspect the accounts to check the claim, but Hurd did not do so. Later,
having signed a contract to join Redgrave as a partner, Hurd discovered the practice generated only
£200 pa, and the accounts verified this figure. Lord Jessel MR held that the contract could be
rescinded for misrepresentation, because Redgrave had made a misrepresentation, adding that Hurd
was entitled to rely on the £300 statement.
By contrast, in Leaf v International Galleries, where a gallery sold painting after wrongly saying it
was a Constable, Lord Denning held that while there was neither breach of contract nor operative
mistake, there WAS a misrepresentation; but, five years have passed, the buyer‘s right to rescind had
lapsed. This suggests that having relied on a misrepresentation, the misled party has the onus to
discover the truth ―within a reasonable time‖. In Doyle v Olby [1969], a party misled by a fraudulent
misrepresentation was deemed NOT to have affirmed even after more than a year.

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What are the defenses to this tort?
There is only one defense to the tort — justification — and its boundaries are ill-defined. The
defense is circumscribed — ―in a society which values the rule of law, occasions, when a legal right
may be violated with impunity, ought not to be frequent‖ — and highly fact-specific. Relevant
factors may include the nature of the breached contract, the position of the parties, the grounds for
the breach and the method in which the breach was procured. In one eye-catching case, the defense
succeeded where union officials persuaded a theatre manager to breach his contract because the
company‘s salaries were so low ―some chorus girls were compelled to resort to prostitution‖. The
High Court delivered an extensive consideration of the defense in 2004 in Zhu v Treasurer of New
South Wales. A company contracted with the appellant to market the 2000 Sydney Olympics in
China but was then induced by the local organizing committee to breach the contract on the grounds
that it was inconsistent with overarching contractual undertakings relating to the Games‘ hosting.
The Court rejected the defense, holding an inconsistent contractual obligation is insufficient,
although proprietary or statutory rights may satisfy the justification test.

What are the remedies to this tort?

There are two available remedies if the tort is proven:
 damages
 injunctions.
Although a contract claim would generally also lie against the infringing party, the outcome via tort
can be more appealing — for both practical reasons (the third party may be wealthier than the
infringing party) and legal considerations. Damages in tort ―may be more extensive‖ than their
contractual equivalent, with a much more liberal remoteness test and the absence of a strict duty to
mitigate. In an extreme case, exceptional damage may even be available through the tort.
Additionally or alternatively, an injunction may issue to prevent the respondent from continuing to
induce non-performance of the contract. The usual equitable requirements are applicable where an
injunction is sought.

Conclusion
The growth of business and commercial relations in the twentieth century has caused common law
and civil law jurisdictions to recognize a cause of action to induce breach of contract, thereby
providing better security for contracts.

The Tort of Nuisance – Public and Private

Introduction
A person in possession of a property is entitled to its undisturbed enjoyment as per law. However, if
someone else‘s improper use or enjoyment in his property ends up resulting into an unlawful
interference with his enjoyment or use of that property or of some of the rights over it, or in
connection with it, we can say that the tort of nuisance has occurred.
The word ―nuisance‖ has been derived from the Old French word ―nuire‖ which means ―to cause
harm, or to hurt, or to annoy‖. The Latin word for nuisance is ―nocere‖ which means ―to cause
harm‖.
Nuisance is an injury to the right of a person‘s possession of his property to undisturbed enjoyment
of it and results from an improper usage by another individual.

Definitions by various Thinkers

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of
another, or of the lands, one which doesn‘t amount to trespass.

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According to Salmond, nuisance consists in causing or allowing to cause without lawful
justification, the escape of any deleterious thing from one‘s land or from anywhere into land in
possession of the plaintiff, such as water, smoke, gas, heat, electricity, etc.

Essential elements of Nuisance

Wrongful act
Any act which is done with the intention to cause the infringement of the legal rights of another is
considered to be a wrongful act.
Damage or loss or annoyance caused to another individual
Damage or loss or annoyance must be such which the law should consider as a substantial material
for the claim.

Kinds of Nuisance
1. Public Nuisance
The Indian Penal code defines nuisance as an act which causes any common injury, danger or
annoyance, to the people in general who dwell or occupy the property, in the vicinity, or which must
necessarily cause injury, obstruction, danger, or annoyance to the people who may have occasion to
use any public right.
Public nuisance affects the society and the people living in it at large, or some considerable portion
of the society and it affects the rights which the members of the society might enjoy over the
property. The acts which seriously affects or interferes with the health, safety or comfort of the
general public is a public nuisance.
Instances where an individual may have a private right of action in respect to a public nuisance:
 He must show the existence of any personal injury which is of a higher degree than the rest of
the public.
 Such an injury has to be direct and not just a consequential injury.
 The injury must be shown to have a huge effect.

2. Private Nuisance
Private Nuisance is that kind of nuisance in which a person‘s use or enjoyment of his property is
ruined by another. It may also injuriously affect the owner of the property by physically injuring his
property or by affecting the enjoyment of the property. Unlike public nuisance, in private nuisance,
an individual‘s usage or enjoyment of property is ruined as distinguished from the public or society
at large. The remedy for private nuisance is a civil action for damages or an injunction or both.
Elements which constitute a private nuisance
 The interference must be unreasonable or unlawful. It is meant that the act should not be
justifiable in the eyes of the law and should be by an act which no reasonable man would do.
 Such interference has to be with the use or enjoyment of land, or of some rights over the
property, or it should be in connection with the property or physical discomfort.
 There should be seeable damage to the property or with the enjoyment of the property in order
to constitute a private nuisance.
Case Law: Rose v. Miles(1815) 4M &S. 101
The defendant had wrongfully obstructed a public navigable creek which obstructed the defendant
from transporting his goods through the creek due to which he had to transport his good through land
because of which he suffered extra costs in the transportation. It was held that the act of the
defendant had caused a public nuisance as the plaintiff successfully proved that he had incurred loss
over other members of the society and this he had a right of action against the defendant.

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A nuisance may be in respect of either property or physical discomfort
1. Property
In the case of a nuisance with respect to the property, any sensible injury to the property will be
enough to support an action for the damages.
2. Physical discomfort
In a suit of nuisance arising out of physical discomfort, there are two essential conditions required.
 In excess of the natural and ordinary course of enjoyment of the property.
The usage by the third party should be of out of the natural course of enjoyment from one party.
 Interfering with the ordinary conduct of human existence.
The discomfort should be of such a degree that it would affect an individual in the locality and
people would not be able to put up or tolerate with the enjoyment.
Case Law: Radhey Shyam v. Gur Prasad AIR 1978 All 86
Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals
for permanent injunction restraining the defendant from installing and running a flour mill in the
premises occupied by the defendant. Gur Prasad Saxena filed another suit against Radhey Shyam and
five other individuals for a permanent injunction from running and continuing to run an oil expeller
plant. The plaintiff has alleged that the mill was causing a lot of noise which in turn was affecting the
health of the plaintiff. It was held that by running a flour mill in a residential area, the defendant was
causing a nuisance to the plaintiff and affecting his health severely.

What are the defenses available to Nuisance?

There are many valid defenses available to an action for tort, these are:
1. Prescription
 A prescription is a title acquired by use and time and which is allowed by the law, a person
claims any property because his ancestors have had the possession of the property by law.
 Prescription is a special kind of defense, as, if a nuisance has been peacefully and openly been
going on without any kind of interruption then the defense of prescription is available to the
party. On the expiration of this term of twenty years, the nuisance becomes legalized as if it
had been authorized in its commencement by a grant from the owner of the land.
 The essence of prescription is explained in Section 26 of the limitations act and Section 15 of
the Easements Act.

There are three essentials to establish a person‘s right by prescription, these are
1. Use or enjoyment of the property: The use or enjoyment of the property must be acquired
by the individual by law and the use or enjoyment must be done openly and peacefully.
2. Identity of the thing/property enjoyed: The individual should be aware of the identity of
thing or property which he or she is peacefully or publically enjoying.
3. It should be unfavourable to the rights of another individual: The use or enjoyment of the
thing or property should be of such a nature that it should be affecting the rights of another
individual thus causing a nuisance and even after knowing of such a nuisance being caused
there must‘ve been no action taken against the person causing it for at least twenty years.

2. Statutory authority
 When a statute authorizes the doing of a particular act or the use of land in a way, all the
remedies whether by action or indictment or charge, are taken away. Provided that every
necessary reasonable precaution has been taken.
 The statutory authority may be either absolute or conditional.
 When there is an absolute authority, the statue allows the act and it is not necessary that the
act must cause a nuisance or any other form of injury.

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  Whereas in the case where there is a conditional authority, the state allows the act to be done
only if it can be done without any causation of nuisance or any other form of injury.

What are the remedies for nuisance?

There are three kinds of remedies available in the case of a nuisance, these are:
1. Injunction
An injunction is a judicial order restraining a person from doing or continuing an act which might be
threatening or invading the legal rights of another. It may be in the form of a temporary injunction
which is granted on for a limited period of time which may get reversed or confirmed. If it is
confirmed, then it takes the form of a permanent injunction.

2. Damages
The damages may be offered in terms of compensation to the aggrieved party, these could be
nominal damages. The damages to be paid to the aggrieved party is decided by the statue and the
purpose of the damages is not just compensating the individual who has suffered but also making the
defendant realize his mistakes and deter him from repeating the same wrong done by him.

3. Abatement
Abatement of nuisance means the removal of a nuisance by the party who has suffered, without any
legal proceedings. This kind of remedy is not favoured by the law. But is available under certain
circumstances.
This privilege must be exercised within a reasonable time and usually requires notice to the
defendant and his failure to act. Reasonable for may be used to employ the abatement, and the
plaintiff will be liable if his actions go beyond reasonable measures.
Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land which overtime
outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the tree which is
affect his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck, land without his
permission, and chops off the entire tree which then falls on the land of Beck, then Ace shall be in
the wrong here as his action taken would be beyond reasonableness.

Nuisance and Trespass – Distinguished

1. Trespass, on one hand, is the direct physical interference with the plaintiff‘s possession of the
property through some material or tangible object whereas, in the case of a nuisance, it is an
injury to some right of the possession of the property but not the possession itself.
2. Trespass is actionable per se (actions which do not require allegations or proof), whereas, in
the case of a nuisance, only the proof of actual damage to the property is required.
Example: Simply entering on another individual‘s property without the owner‘s consent and without
causing him any injury would be trespass whereas if there is an injury to the property of another or
any interference with his enjoyment of the property, then it will amount to a nuisance.
3. If the interference with the use of the property is direct, then the wrong is trespass. Whereas if the
interference with the use or enjoyment of the property is consequential then it will amount to a
nuisance.
Example: Planting a tree on someone else‘s land would amount to trespass whereas if a person
plants a tree on their own land which then outgrows to the land of another would amount to a
nuisance.

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Case Law: Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandal AIR 1978 Guj 13,
(1977) GLR 424.
In this case, the plaintiff had sued the defendant for a permanent injunction to restrain the defendant
from showing a movie named ―Jai Santoshi Maa‖. It was said by the plaintiff that the contents of the
movie significantly hurt the religious sentiments of the people belonging to the Hindu community as
well as the religious sentiments of the plaintiff as the movie showed Hindu Goddess‘ Laxmi, Parvati,
and Saraswati, to be jealous of one another and were ridiculed in the film. It was held that hurt to
religious sentiments was not an actionable wrong.

Conclusion
The concept of nuisance arises commonly in everyone‘s daily life, in fact, the Indian courts have
borrowed quite a lot from the English principles as well as from the decisions of the common law
along with creating their own precedents. This has helped the concept of nuisance in the field of law
develop quite extensively and assures the fairness and wellbeing of all the parties which may be
involved such as in the case of Private nuisance, the party which is being affected, as well as, in the
case of public nuisance, where the society at large is being affected.

The Concept of Absolute Liability

Introduction to Absolute Liability
The concept of absolute liability evolved in India after the case of M.C Mehta vs Union of
India[1] famously known as Oleum Gas Leak case. This is one of the historic cases in the Indian
Judiciary. The case of M.C Mehta is based on the principle of strict liability but with no exception
were given and the individual is made absolutely liable for his acts. It is based under this principle
that the defendant won‘t be allowed to plead defence if he/she was at fault as it was laid down in
Ryland vs Fletcher case. After the Bhopal gas leak case many people lost their lives and are suffering
from some of the fatal diseases through the generation and because of this there was an urgent need
to develop a rule under strict liability which had no exceptions available to the defendant to escape
from the liability.
The rule laid down by the Honourable Supreme Court of India is much wider with respect to the
rules laid down the House of Lords in the case of Ryland vs Fletcher. It was propounded by the
Supreme Court that where an enterprise is engaged in a hazardous or inherently dangerous activity
and if any harm results to anybody on account of the accident in operation, the enterprise would be
held strictly and absolutely liable to compensate to all those who are affected by the accident.

Essential Elements of Absolute Liability

The essential elements of absolute liability are-
 Dangerous Thing– As per the rules laid down, the liability of escape of a thing from an
individual‘s land will arise only when the thing which is collected is a dangerous thing that is
a thing which likely causes damage or injury to other people in person or their property on its
escape. In various torts cases which have happened all over the world, the doctrine of strict
liability has held a large body of water, gas, electricity, vibrations, sewage, flag-pole,
explosives, noxious fumes, rusty wires etc are certain things which come under the ambit of
dangerous things.
 Escape– Anything which has caused damage or mischief should have escaped from the area
which was under the control of the defendant to come under the ambit of absolute liability.
Like it happened in the case of Read vs Lyons and Co.[2] where the plaintiff was working as
an employee in the defendant‘s company which was engaged in manufacturing shells. The
accident happened while she was on her duty that day within the company‘s premise. It
happened when a piece which was being manufactured there exploded and due to which the
plaintiff suffered harm. After this incident and a case was filed against the defendant‘s

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 company but the court eventually let go the defendant and gave the verdict that strict liability
is not applicable here in this particular case. This was declared by the court because the
explosion that took place was within the defendant‘s premises and not outside. And the
concept says that it should have escaped the dangerous thing like shell here from the
boundaries of the defendant premise which didn‘t happen and was missing over here. So, the
negligence on the part of the defendant could not be proved in the court.
 Non-natural use of land– Water collected on land for domestic purposes does not amount to
non-natural use of land but if one is storing it in large quantities like in a reservoir as it was
the case in Ryland vs Fletcher[3] then it amounts to non-natural use of land. The difference
between natural and non-natural use of land by keeping in mind the surrounding social
conditions. As the growing of trees and plants on land is considered as a natural use of land
but if one starts growing trees which are poisonous in nature then it will be considered as non-
natural use of land. If an issue arises between the defendant and the plaintiff even though the
defendant is using the land naturally, the court will not hold the defendant liable for his
conduct.
 Mischief- To make the person liable under this principle, the plaintiff at first needs to show
that the defendant had done the non-natural use of land and escaped the dangerous thing
which he has on his land which resulted in the injury further. In the case of Charing Cross
Electric Supply Co. vs Hydraulic Power Co.[4], the defendant was assigned to supply water
for industrial works. But he was unable to keep their mains charged with a minimum pressure
that was required which led to the bursting of the pipeline at different places. This resulted in
causing heavy damage to the plaintiff which was proved in the court of law. The defendants
were held liable in spite of this that they were not at fault. These are the few rules where this
doctrine is applied.

Scope of Rule of Absolute Liability

In most of the places, the rule of strict liability and absolute liability are seen as exceptions in the
law. And the individual is held liable only when he/she is at fault. But, in such cases, the individual
could be held guilty even if he is not at fault. After the catastrophic accident of Oleum Gas Leak case
the act of The Public Liability Insurance Act, 1991 was introduced with the main purpose of
providing immediate relief to people who are victims of the accident in which handling of hazardous
substances is involved. The agenda behind this act was that the act will create a public liability
insurance fund which will eventually be used for the purpose of compensating the
victims. Hazardous Substance under this act is defined as any substance which by reason of its
chemical or any properties is liable to cause any damage to human beings, other living creature,
plants, microorganism, property or to the environment. The term handling is described in section
2(c) of the Public Liability Insurance Act,1991 which is the clear expression of the rule of absolute
liability laid down in M.C Mehta vs Union of India.

Is Strict Liability and Absolute Liability the Same Thing?

No, strict liability and absolute liability are not the same things and are different. As in strict liability,
the defendant has a chance to escape the liability after causing the damage and injury whereas under
absolute liability this is not the case as the defendant is held absolutely liable for his acts. This
means that even if both the rules come up for giving punishments to the wrongdoer who has caused
injury and by dealing with hazardous substance without proper care and caution but they would
differ in cases of providing relaxation.
As in strict liability, there are some defences which are available to the wrong-doer but in of absolute
liability, there are no defences available and given to the defendant. It was even declared by the
courts that absolute liability could even be upheld in case of single death and there is no need for any
mass destruction or pollution done to the environment.

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By analysing the need to modify the 19th century rule of strict liability the apex court in M.C Mehta
vs Union of India stated that ―Moreover that the principle which was established in Ryland vs
Fletcher‘s case cannot be applied in the modern world because the rule was laid down in the old
world as compared to the one laid down in the modern world which is period of industrial revolution
and this principle is two century‘s old which can‘t be adopted without the modifications being made
into it. The main aim is to limit the scope of the rule and bring it at the same level as the modern
theory.

Evolution of absolute liability

The rule of absolute liability has evolved as a result of the old rule and it can‘t be applied in Indian
Law Perspective as it is inappropriate for the reason because its evolution is because of high
industrial growth, agricultural use of land etc. We all know that India is a developing country and
with that, it is a developing economy too and the doctrine of strict liability is a very old principle.
The old rule evolved when there was low or limited scope for industrial development compared to
today‘s scenario which high in industrial growth in the country.
ABSOLUTE LIABILITY = (STRICT LIABILITY- EXCEPTIONS)
The scope of the rule of absolute liability is very wide in all its aspects when compared with the old
rule. As it does not have any exception laid under it in the new rule. Not only it covers public
negligence or fault but it also covers even the personal injuries caused due to the misconduct of the
neighbour. Now it covers not only the one who occupies the land but also makes people liable who is
not the owner of the land. Absolute Liability has been brought up in the case of M.C Mehta vs Union
of India[5] also this is one of the landmark judgement in India‘s legal history. The rule which was
laid down after this case was that any enterprise which is engaged in any kind of hazardous or
inherently dangerous material which if there might result in any kind of harm then the enterprise
would be absolutely liable to compensate to all the people who are affected by the same as it also
happened in Bhopal Gas Tragedy case.
The facts of the case go on like this that in the city of Delhi in 1985, there was severe leakage of
oleum gas in the month of December 1985. This incident took place in one of the units of Shriram
Foods and Fertilizers Industries which belonged to the Delhi Cloth Mills Ltd. and as a result of this
accident an advocate in the Tis Hazari Court had died because of the poisonous fumes and many
others were severely harmed. This incident led to the filing of PIL (Public Interest Litigation) in the
courts in India.
PIL is filed by a group of individual or by any person in the supreme court or high court of India. PIL
is the tool to armour public interest and this instrument is brought by the court, not by the aggrieved
party. But is brought in by the court of law or by any private party other than the aggrieved person in
the society. It was in SP Gupta vs Union of India [6] that the Supreme Court of India has defined
the term PIL in its elaborate form. The traditional rule of ―locus standi‖ that held that a person whose
right is infringed alone could file a PIL, has now been removed by the Supreme Court in its decision
over the period of time like as declared in Badhua Mukti Morcha vs Union of
India[7], Parmanand Katara vs Union of India[8] and many more. Now any public-spirited
citizen has all the rights and can approach the court for the public cause by filing a PIL in the
Supreme Court of India under article 32 and High Court under article 226 or even could be filed by
approaching the Court of Magistrate under section 133 of CrPC.
For example, a construction company was constructing highways as per the orders and for doing
this it has to blast rocks with dynamite. The company carried out this activity with extra precaution
and care and in spite of this, some fragments of rock had flown and damaged the neighbouring
houses. As a result of this, the owner of the house sued the company for the damage they had caused
by their Act. But, the corporation raised an argument in the court that they cannot be sued because
they are free from the fault but this was not upheld by the court and they were held absolutely liable

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for their wrongful acts and it is no defence that they took extra care and precautions to prevent the
harm which had caused.
A tort is a civil wrong for which the remedy is an action taken by law for the unliquidated damage
and which is not exclusively breach of any contract or promise or any other kind of obligations.
There are principles in law which only holds a person liable when he/she is at fault whereas in
certain principles the individual is held liable without him being at fault. This is the ‗no-fault liability
principle‘ This no-fault liability principle has two main landmark judgements Ryland vs
Fletcher (strict liability) and MC Mehta vs Union of India[10]. In both these cases the individual
was made liable even though he was not responsible for the damage caused.

Constitutional Tort
Introduction
Vicarious liability is the liability that lies upon a person for an act done by someone else. It comes
into play often in master-servant relationships. Constitutional Tort is generally a judicial instrument
by which the state can be held vicariously liable for the acts of its servants.
It‘s the legal action to get legal remedy in the form of damages when any of the constitutional rights
are violated.[1] The only exception lying is that it cannot be made liable if the act is done in exercise
of sovereign (government) functions.
The origin of Constitutional law may be traced back to the time when the common medieval saying
of ―Res Non-Potest Peccare‖ i.e. „the king can do no wrong‟ (as the king was considered the son of
God) started losing its acceptance in the eyes of the public. After the 18th century, with the advent
and emergence of new democracies and industries, it became important to take acts done with state‘s
authority under judicial scrutiny so that, those who suffered from such acts may get justice in due
course.

Evolution in India
As there is no legislation which specifies the vicarious liability of the state for the torts committed by
its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the
right to file a suit comes from.
Art. 300 gives the right to the public to sue the state. While it came into force after the
implementation of the Constitution in 1950, similar provisions were also there in Government of
India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of
1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, ―All
persons and bodies politic shall and may have and take the same suits, for India as they could have
done against the said Company.‖ [2]
As the Government succeeded the company in administration i.e. East Indian Company, the liability
of the government similar as it was with the company before 1858.
Article 300

Suits and Proceedings [3]

(1) The Governor of India may sue or be sued by the name of the Union 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 the 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.
(2) If at the commencement of this Constitution,
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India
shall be deemed to be substituted for the Dominion in those proceedings; and

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(b) any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the Province or the Indian State in those
proceedings.
A general reading of part 1 of the Article tells about suing the state and other dominions by their
name in the same way as they have been if the constitution had not been enacted. Part 2 talks about
pending legal proceedings against the state and provides to substitute dominion of India with Union
of India and province with Indian State respectively in clauses (a) and (b).
Landmark judgements on Constitutional Tort
1. P & O Navigation Company v Secretary of State for India– This was the first case in
which the Sovereign immunity of the state was debated. There was a piece of a funnel made
up of iron which was being carried by some workers on a Government‘s steamer, which in its
way hit plaintiff‘s horse-driven carriage. Plaintiff sued the Govt. for damages due to
negligence on the part of the servants employed by the govt.
Held- ―The Government cannot be held liable when the injuries are caused while carrying out
sovereign functions but is liable when the acts of the servants are non-sovereign functions‖.
2. Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded for damages for
refusal of Government to give him licence to sell liquor and drugs, it was held that it was out
of sovereign functions of the state and thus, is out of reach of tortious liability. Since this
decision, the distinction between sovereign and non-sovereign functions is the foremost
criteria that are looked into by the courts in their judgements.
3. Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a
pedestrian who eventually died of an accident. The plea of Sovereign immunity was rejected
but it was held that the government cannot be held liable for the ―Act of State‖ under Article
300. Compensation of Rs. 15000 was given. The Hon‘ble Supreme Court stated that ―in the
modern era, the liability of State is not limited to Sovereign functions, but is socialistic and is
related to the welfare of the people and thus, the old immunity of State functions is
irrelevant‖.
4. Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the
Plaintiff. The head constable later misappropriated the gold and flew with it to Pakistan. The
Court did not take account of the judgement in Vidyawati case and ruled in favour of the
State stating that the act was sovereign in nature. It was held that the law established in P & O
Navigation is still good law. The court was not pleased as it could help the Plaintiff with its
ruling. Through this judgement, in addition to disapproving the law in Vidyawati, it was also
added by the Court that the state is not liable when the tort is done in statutory power by its
servants.
5. N. Nagendra Rao v State of Andhra Pradesh– It was held that the ratio of Kasturi Lal is
applicable in rare cases only where the statutory authority to carry out certain functions are
delegated. In any civil society, the state cannot be allowed to play with the rights of the
citizens and take the plea of sovereign function and thus, it cannot be treated above and
against the rule of law.
6. Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the
foundation of new reasoning in matters involving constitutional tort and compensation. In this
case, the plaintiff who has been denied his pension, without much discussion, was allowed to
recover exemplary damages of Rs. 25000 for being harassed by the defendant deliberately.
7. Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state for
his illegal imprisonment for 14 years and asked for compensation and rehabilitation cost. The
question presented before the Apex court was whether the court can award monetary damages
under its jurisdiction as given in Article 32 or not.

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The court gave the answer in affirmative by stating that monetary damages under article 32 may be
granted and thus gave a judgment that proved to be a giant leap in the cases involving both
constitutional tort and compensation.

The judgment formulated two landmark rules by holding that:

1. Civil liability can arise when constitutional rights are violated.
2. Civil liability can also emerge when there is a violation of personal liberty.
8. Saheli v Commissioner of Police– In this judgment, the ratio in Vidyawati was revisited and
upheld by its application. When a child died by police assault and beating, the compensation
of Rs. 75000 was granted and the Delhi Administration was allowed to recover the same from
the officials which were responsible for the incident.
9. Common Cause, A registered society v Union of India– In this judgment, the court ruled
that when there is a violation of fundamental rights of the person, the remedy for him is
available under public law despite the fact that there is an optional remedy in private law also.
The distinction between damages and remedies given in private and public law were
evaluated and this judgement opened the way for the development and growth of public law
torts increasing State‘s liability.

Growth of remedy under Constitutional Tort

The principle established in Rudal Shah established and crystallized the concept of constitutional
torts. The court did not follow a rapid formulation of law but instead stick to the case by the case
evolution as per the need. In Sebastian Hongray v Union of India, when two persons whisked away
by the Sikh regiment were found missing, a writ petition of habeas corpus was filed by a JNU
student under Article 22. The court issued a command to the respondents i.e. UOI, State of Manipur
and Commandant, Sikh Regiment. In the events followed in the course of the inquiry, the Court
discovered that the respondents misled the inquiry and committed wilful disobedience. In the
subsequent judgement, the Court awarded the exemplary damage of 1 lakh each to the wives of both
the individuals who had disappeared after they were taken into custody, ignoring the common
consequences of imprisonment and fine in such circumstances.
The doctrine of constitutional tort has grown in many steps. Some of the established principles are as
follows:

1. Doctrine to Entertain Appropriate Cases

The court in Bhim Singh v State of J & K states that the court will entertain only appropriate cases
but it did not elaborate more on the qualification criteria for a case to be called as an appropriate
case. The case was related to the illegal detention of an MLA so that he cannot attend the
proceedings of the house. His wife filed a writ of habeas corpus under Article 32 of the constitution.
 The decision of detention was held violative of Article 21 along with Article 22 (1). Although
at the time of judgement the MLA was free, still the court chose to grant exemplary damage
by monetarily compensating. The court observed, ―when a person comes to us for the remedy
for violation of his constitutional and legal rights, and the court finds it as an appropriate case,
it may award exemplary damages‖.And, the court awarded Rs. 50000 to Bhim Singh.
The trinity of cases i.e. Rudal Shah, Sebastian Hongray and Bhim Singh ensured state‘s liability for
compensating a person who is illegally detained by it thus, violating his right to life and personal
liberty.
 In MC Mehta, there was a reiteration of appropriate cases doctrine but in more elaborative
manner, the court stated that ―an appropriate case may be considered as a case when there is a
gross and potent infringement of a person‘s right in a manner whose magnitude may shock the
court‖. In addition, it was stated, ―the decision of qualification of a case as appropriate or not

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 is inclusive and not conclusive and the court is free to decide on the question based on the
facts and circumstances of each case separately based on its merit‖.
 The role of High Courts in awarding compensation was recognised by the Apex Court in the
case of State of Maharashtra v Ravi Kant S Patil where a person was paraded on the street
with handcuffs without any justification, the Court awarded compensation of Rs. 10000 by the
police officer himself and directed the government to make an entry into the policemen‘s
service record that he violated a person‘s right without any valid justification. However, in
appeal, the Apex Court upheld the judgement but ordered the government to compensate
instead of compensation from the officer himself and also directed to avoid making an entry
in the official records. This was a contrary step from the law in Saheli v Commissioner of
Police when the recovery was allowed by the officer himself. However, in this case, HC‘s
role under Article 226 for providing compensation was recognised and helped the High
Courts to enjoy the authority vested in them for providing damages in future.

2. Constitutional Tort and the end to Sovereign Immunity

Although, with the cases like Bhim Singh and Rudal Shah the law of constitutional tort was
evolving, the Courts did not take recourse to the law in Kasturi Lal. The decision in Kasturi Lal was
neither reiterated nor overruled.
The claim of damages in every case of infringement of fundamental rights was obvious in every
judgement, but there was no refinement of the doctrine of fixing the liability or dealing with the
provision of remedy. There was a demand by legal scholars that unless the law in Kasturi Lal is
discussed, the arrangement of providing compensation in breach of fundamental right will only be
understood as a provision on an ad-hoc basis.
 The Hon‘ble SC in the case of Nilabati Behera v State of Orissa clarified the law after
passage of one decade of judgement in Rudal Shah. Nilabati Behera was a case which came
before SC through PIL and was related to the custodial death of a 22-year-old boy whose
body was discovered lying on the railway track on the day after he was sent for police
custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the victim. In
addition, there were many observations made by the court. Some of those are as follows:
1. The Court clarified the observations in Rudal Shah that ―a remedy under Article 32 or 226
may be denied if the claim presented before the court is controversial in facts and that
monetary claims are allowed under Article 32 and 226‖. The Court stated, ―the remedy under
both the articles is precise and available in all the cases distinctively, in addition to an
alternate remedy, if there is a violation of fundamental right‖.
2. The liability under private law and liability of state under violation of fundamental rights by
the State was distinguished and the Court observed ―even though the defence of sovereign
immunity and exceptions to strict liability may apply in cases dealing under private law, they
are not applicable when the case is relating to infringement of rights by the State under public
law. The award of compensation is a recognised remedy under Article 32 and 226 and the
Court must remember the distinction while entertaining both types of cases‖.
3. The provision of compensation from the State in the event of an infringement of fundamental
rights is an inherent remedy under the constitution. The question of sovereign immunity is not
even a question to ask by the State to prevent itself from providing damages to the victim and
is alien to the idea of guaranteeing fundamental rights to every citizen of the country.
In addition, it is the only practical mode available for remedying the victim and thus it provides a
justification for exemplary damages in monetary form. The court further stated, ―the enforcement of
fundamental rights by taking recourse to the provision under Article 32 and 226 is the law in Rudal
Shah and thus, it provides a basis for subsequent decisions‖.
 Even though in the majority of cases which deal with constitution tort, the remedy has been
provided for infringement of article 20 and 21, there are some exceptions too. In the cases

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 of Assam Sillimite Ltd. v. India and Gajanan Vishweshwar Birjur v. India, there was a
violation of other fundamental rights.
 In Assam Sillimite case, the compensation was provided for infringement of article 19(1)(g).
The dispute was over the cancellation of the lease without giving any chance of hearing. The
act was also not in line with the principle of natural justice.
In Gajanan Vishweshwar case, the honourable Supreme Court quashed the order of seizure of some
books, when the concerned authority was not able to provide a satisfactory answer on grounds of
confiscation under section 111 of the Customs Act. Rs. 10000 was awarded as compensation as the
act of administration was held to be resulting in violation of petitioner‘s right under article 19 (1)(a)
of the Indian Constitution.

3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)
Supreme court faced heavy criticism for awarding damages under article 32 but not under article
136. It was argued that a plea for compensation under article 136, if not higher in merit, is at equal
footing with that of article 32.
However, this was not always a case. In State of Haryana v Smt. Santra, when the sterilization failed
and the woman gave birth to a baby, the suit for compensation was allowed as an SLP and the
Supreme Court rejected the defense of sovereign immunity.
The Court held ‖ the contention regarding vicarious liability of the doctor of the government hospital
cannot be accepted as a case of negligence on the part of the doctor only. As the operation was done
in a government hospital, the theory of sovereign immunity is not applicable‖.
The court also referred to the cases of N. Nagendra Rao v Union of India, Common Cause, and
Achutrao Khodwa which was related to sterilization operation.

4. Defense of Sovereign immunity in Civil Law Proceedings

The apex Court differentiated the remedy under public law, civil law and private law in the landmark
judgment of Nilabeti Behera. It was concluded that although the defense of sovereign immunity
applies to cases of private law such as tort, it does not apply to compensation resulting under Articles
32 and 226.
The case of C. Ramakonda Reddy v State of AP may be considered as a landmark judgment in this
regard. The High Court of Andhra Pradesh pronounced a highly prognostic verdict in this case which
was later affirmed by the Supreme Court. In this case, due to the negligence of the prison authority,
one of the accused died due to the entry of an outsider into the jail premises which planted a bomb in
order to kill the deceased, one of the accused person.
The incident took place due to misfeasance and malfeasance of the defendants i.e. the State. The
damage to the plaintiff was calculated to be Rs. 10 lakhs. Subsequently, the State denied its liability
and contended that it is not to be sued for its sovereign functions which were, in this case, the
maintenance of the jail. The judgment was declared in State‘s favour.
In the appeal, the HC observed, ―the right to life cannot be defeated by the archaic defense of
sovereign functions and when the person is denied his right to life and liberty, it is not a valid
argument that the deprivation was due to the state carrying out its sovereign functions.‖
Observing the facts, the Court awarded the compensation of Rs. 1.44 lakh and stated that it is the
only way to enforce Article 21 in such cases. On the later stage, the judgment of the High Court was
affirmed by the Apex Court and the appeal was dismissed.

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5. Supreme Court‟s approach on Constitutional Tort Issues
The Apex Court always took recourse to the extent of enforcement of fundamental rights in order to
answer on the remedy for the constitutional tort. The analysis was divided on the substantive basis of
the compensation if there is a gross violation of the fundamental rights. As Chief Justice of the
United States John Marshall remarked ‖ the Government of the United States has been always
witnessed as the government of laws and not of man‖, in India also the same was the case when the
government‘s using constitutional provisions and by applying the defence of sovereign immunity
kept on violating the fundamental rights.
The court in Rudal Shah opined ‖ the plaintiff has the right to compensation if there is a violation of
their fundamental rights along with penalizing the authorities which acting in the name of public
interest, use their powers as a shield to prevent themselves from scrutiny.
At a later stage, after awarding compensation in Devki Nandan case for deliberate and motivated
harassment of the plaintiff, the court established the doctrine of appropriate cases in Sebastian
Hungry and Bhim Singh. Subsequently, in MC Mehta, the complete doctrine of Constitutional Tort
was established along with the introduction of deep pocket theory.
However, due to the sole focus of law formation on public law and judicial pronouncements, it is
hard to find a jurisprudence of further developments. Thus, there was an attempt to incorporate a
separate clause under Article 13 as 13A coming just before the fundamental rights dealing with the
right to compensation for violation of fundamental rights. It was suggested that this will help in
increasing the liability and act in consonance with Article 32.
Ultimately, the award of damages by the hands of the judiciary is indeed a creative concept
introduced in India but fails at certain stages due to the absence of well-defined criteria.

Conclusion
While concluding, it may be stated that the doctrine of Constitutional Tort is a creative jurisprudence
evolved by the Courts in spite of the fact that the criteria employed had faced various criticism in the
past. The Apex Court must evolve a scientific criterion for future cases. The ―voting right model‖ of
the United States may be adopted for measuring the damages in Constitutional Tort actions to
prevent the victim from a legal injury to their rights.

Tort Law and Environment

Introduction
Tort law and environmental harms due to pollution are interrelated with each other so closely that
even today in spite of huge legal development, majority of all the cases relating to environmental
harm comes under the ambit of four types of torts which are- Trespass, Nuisance, Strict Liability and
Negligence.
In India, tort law comes into effect with the aid of Article 372(1) of the constitution which states that
―all the laws which were in force before the independence, until repealed or replaced with new
legislation by a competent authority, will not lose their existence and will remain in force within the
territory of India‖. In addition, it must be kept in mind that the State (both central and state govt.) can
be sued by its name under Article 300 of Indian Constitution.

Background
The present Indian legal system is formulated on what is known as the Anglo-Indian Judicial system
which in 1772, was adopted by Warren Hastings through judicial plans and became the base for later
legal developments. Similarly, judges were advised to act on the ideals of ―equity, justice and good
conscience‖ in the absence of proper legislation or when there were loopholes in them. It was
believed that these ideas were able to fill the gaps between the laws. Later after the codification of a
number of laws, Common law was still dominating Indian laws and thus, even today when there is

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no codification of the law of torts, most of the precedents and rules of Common laws are followed in
India.
Role of Torts in the protection of the environment
Before and after the development of torts in issues concerning environment damage, it was heavily
debated that whether tort which is used for private remedy by providing damages can be employed in
the prevention of environmental degradation? Stephan Shavell, a renowned professor and economist
remarked that ―Risk control measures and compensation goals are to be met separately but the case is
different in torts where both can be harnessed simultaneously on equal footing and while considering
environmental concerns, more efficient and better remedies are available as compared to torts‖[1].
 Tort means a civil wrong. In case when there is damage to the environment, it plays its role.
 It is more focused on curing and awarding the damages rather than prevention and hence, it is
helpful.
 The environment and Earth‘s biome is not personal property and hence one cannot claim
reparations for its damage.
 While it is considered that tort is more focused on harm rather than risk measurement, this
concept is not fully true as in cases of negligence probability and foreseeability of risk is a key
factor which is considered while seeking damages.
 In tort, negligence generally reflects the fault of the defendant. The same applies to
environment polluter based on the strict liability doctrine established in Rylands v. Fletcher.
 When there is personal harm resulting from environmental destruction, the remedy can be
sought.
Role of Indian judiciary in extending tortious liability in cases of environmental harm
 In India, judicial activism and increase in environmental- tort litigation started with the
catastrophe in Bhopal gas leak accident in which, due to the leak of poisonous MIC (Methyl
Isocyanate) gas, millions of people suffered from a health problem and over 2,500 people died
with the immediate poisonous effect of the gas. With such massive harm to the environment
and human life, the doctrine of absolute liability began to evolve in India and finally evolved
in the MC Mehta case.
 Bhopal tragedy was an eye-opening accident for people with different backgrounds including
state and central governments, media persons, litigators, social activists and even industrial
managements also. After the tragic accident, a new feature was introduced in the Indian
judicial system when people started linking tort with the environment and there was a growth
in the concept of exemplary damages (heavier amount).
 The new doctrine of absolute liability which developed after Bhopal Gas Tragedy is different
from the English concept of strict liability that comes into effect with certain exceptions and
defence such as plaintiff‘s consent and his own fault or act of God etc. Whereas, there are no
defences available to the defendant in cases relating to absolute liability.
 Fully developed in MC Mehta v. Union Of India[2], absolute liability can be represented in
the form of an equation as:
Absolute liability = Strict liability- exceptions/defenses
 In MC Mehta, there was a leak of poisonous oleum gas (H2O7S2) from Shriram food and
fertilizers Ltd situated in Delhi. A new series of PIL initiated by Mahesh Chandra Mehta, a
public interest attorney started. The court could have ordered to file a suit in the lower courts
and ask for damages and compensation. But instead of doing so, it came up with a concrete
doctrine of absolute liability so that the industrializing Indian economy may be able to deal
with new challenges coming from harmful industries.
 The court also gave Deep Pocket Theory of Compensation and Justice P N Bhagwati (later
CJI) observed, ―larger the enterprise or industry will be, larger will be the amount of
compensation that will be paid if there is an inherently hazardous or dangerous activity is

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 carried out‖ and a very wide interpretation of Art. 32 was formulated with the introduction of
new rights and remedies.
 The MC Mehta case opened new possibilities in tortious environment litigation and a new
technique of issuing a direction under Art. 32 was invoked.
 Consumer Education and Research Centre (CERC) v. Union of India[3]– Although the
principle of absolute liability was not revisited but the court introduced new liabilities and
stated, ―the compensation given in case of damage is not limited to the workers with visible
symptoms of the disease during the course of their employment but extends to those workers
also who suffer from any disease after their retirement‖. The court also showed the sign that
in case of a violation of fundamental rights, directions under Art. 32 are not limited to the
State but can be extended to other persons and company acting under any statutory power or
license.
 Indian Council for Enviro-legal action v. Union of India[4]– In this case upholding the
judgment in MC Mehta, the court observed ―the law needs to accommodate itself with the
changing needs of the society especially in a country like India where economic and social
transformation is a challenge due to rapid industrialization‖ and applied the polluter-pays‘
principle. The court also observed that the newly developed principles of tortious liability are
effective in PIL concerning environmental harm. The court stating the rationale of MC Mehta
asked the government to ensure the remedy for the victims and directed the government to
take necessary steps by levying a cost on the defendants if they fail to do so. Other important
things that the Court stated were:
1. The court is competent to provide an instant and adequate remedy if there is a need.
2. The victim suffering any personal damage is not limited to the civil process. He can directly
approach the court under Art. 32 of the constitution.
3. The court is concerned particularly about those harms which consist of both personal (human
rights violation) and environmental damage. In such cases, those who are responsible for the
act will be required to pay repair costs also.
4. The court is serious about shifting the line or parallel between the administrative process and
adjudication.
5. There would be the creation of tribunals and committees to look into such socio-legal issues
inflicting harm to both an individual and the environment.
 Bandhua Mukti Morcha v. Union Of India[5]– This was a landmark judgment due to the
fact that in this judgment the Hon‘ble Supreme Court stated that ―the power of the court under
Article 32 which deals with right to constitutional remedies is not limited only with issuing
directions, guidelines or writ to enforce fundamental rights but it puts an obligation on the
Court to check whether the fundamental rights of the people are protected or not‖.
This was also declared that for protecting the fundamental rights the court is vested with enormous
power (both ancillary and incidental) and has the right to invent new types of remedies and strategies
for fundamental rights‘ enforcement.
 MC Mehta v. Kamal Nath & Ors.[6]– In this judgment, the court put pollution in the
category of civil wrong and stated that polluting the environment is a tort committed against
the whole community. The Court was also of the view that ―the person who is responsible for
damaging the ecology and environment may be forced to pay exemplary damages also so that
such award may prove as an example for others to prevent them from repeating the same
mistake again‖. However, the Court differentiated between fine and exemplary damage by
saying that both are the results of different types of considerations. The Court restated that its
powers are not limited and thus it can award damages through PIL‘s and writs under Art. 32.

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Why is there a lack of environmental-tort litigation in India?
Although the role of the Supreme Court in the evolution of environmental-tort is immense, there is
still a lack of litigation in that field. While analyzing the situation, there are many reasons that we
find for such a void in tortious litigation. Some of these are as follows:
1. There is a lack of compatibility assessment between societal needs and law. Judges and
litigators involve themselves into rigorous technicality over an issue rather than solving it
simply as per societal needs.
2. Our Indian legal system fails to acknowledge public and civil remedies while trying cases on
personal relationships in society.
3. There is a tendency growing in people of India to prefer mediation over such issues rather
than going for litigation on similar lines with the Western world.
4. Litigation involves and demands a large amount of money, time and labour which people seek
to avoid at any cost and even after going through the time-taking process, they are not assured
that they are going to get remedy or not in such cases of torts.
5. The primitive (under grown) condition of substantive law on such points, especially on State‘s
vicarious liability for the act of its servants.
6. There is confusion created on the minds of lawyers due to availability of different types of
laws on similar issues which acts as a hindrance in environmental-tort litigation.
7. The general public is unaware of the legal development on this point of law. They don‘t know
their rights and hence, do not seek remedy from the courts.
8. Due to the negligible codification of the law of tort, it is difficult to access the law.
9. Government employees and bureaucrats do not take recourse to the legitimate claims of the
public. They are in habit of dissuading their claims even when they are aware that their claims
are enforceable.

Conclusion
In the end, it may be said that, although there is a dearth of tort and especially environmental torts
litigation in India, the recent developments in the past three decades have been satisfactory. After
combining tort law with rights under the constitution and extending the enforcement under Art. 32, it
is now easier for the general public to get a remedy when compared to the scenario before MC
Mehta. Similarly, with the emergence of bodies like National Green Tribunal (NGT) and Forest
Survey of India, keeping a check on the issues of environmental harms and degradation has become
very efficient and works of these bodies are also helpful in increasing the awareness of the general
public. Overall, the effectiveness of remedy with the advent of Deep-Pocket theory had
revolutionized environment related to tort litigation in India.

Bhopal Gas Tragedy and Development of Environmental Law

Background of the Case
Bhopal Gas Tragedy was a deadly disaster which took place in Bhopal, India leaving behind
thousands dead and thousands other maimed for life. This is considered as one of the most horrific
and lethal industrial disasters.
On a 1984 winter night, the lethal Methyl isocyanate Gas (MIC) which leaked from the Union
Carbide factory making it the worst industrial disaster which the world has ever seen. In the 1970s,
the Indian government was encouraging foreign investment in local industries and for the
same Union Carbide Corporation (UCC) was asked to build a plant in Bhopal for the manufacture
of Sevin, which is a pesticide used commonly throughout Asia. The Government of India itself had a
22% stake in the company‘s subsidiary Union Carbide India Ltd. (UCIL).

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Due to its central location and transport infrastructure Bhopal was chosen for the establishment of
the plant. Bhopal was the area zoned for light industrial use and not the heavy and hazardous ones.
This plant was initially approved for just formulation of pesticides but due to the increasing
competition, it started manufacturing other products under the same facility which involved more
hazardous processes.
On Dec 2, 1984, a small leak of MIC gas was noticed. On the morning of 3rd Dec 1984, a plume of
MIC gas was there in the air leading to deaths of thousands of people. According to an estimate,
3,800 people died immediately, out of which most were in poor slums adjacent to the plant.
Estimated number of deaths in the first few days was more than 10,000 and reported 15,000 – 20,000
premature deaths in the next 2 decades. After the incident, UCC tried to deny being responsible for
the incident by shifting the matter towards UCIL (Union Carbide India Ltd) by trying to make the
point that the plant was fully built and operated by the Indian subsidiary that is UCIL.
In March 1985, the government enacted the Bhopal Gas Leak Disaster Act to ensure the dealing of
claims arising after the incident speedily and equitably. This made the government as the only
representative of the victims in the legal processes in and outside the country.
The settlement was made by Supreme Court of India with UCC in which UCC agreed to take the
moral responsibility and paid a claim of $470 million to the government which was negligible
compared to a multi-billion dollar lawsuit which was filed by an American lawyer in a U.S court.
This amount of $470 million was based on the disputed claim that only 3,000 people died and
1,02,000 suffered permanent disabilities. According to Bhopal Gas Tragedy Relief and
Rehabilitation Department, by the end of October 2003, compensation was awarded to 5,54,895
people for injuries received and 15,310 survivors of those killed.
After this settlement, the matter was placed entirely under Indian jurisdiction. The government was
blamed for not having appropriate laws for environmental safety and for settlement of claims through
the establishment of liability. If this kind of proper laws would have prevailed then the victims of the
incident would have got better compensation and it would have been difficult for UCC to get off the
matter.
As after the breathtaking tragedy, the Indian government passed and implemented The
Environment Protection Act (E.P.A) of 1986 under Article 253 of the Indian constitution. Its
purpose was to implement the decisions of the UN Conference on the Human Environment of 1972
to provide protection to an improvement of environment and prevention of hazards for humans,
plants, other living creatures. This act strengthens the regulations on pollution control and
environment protection by hazardous industries.
The act provides the Centre with a lot of power to take all necessary actions required for the
protection of the environment. It enables the executive wing to issue notifications and orders which
becomes guidelines for the administrative agencies. Basically, it provides the Centre with the power
to make rules for environment protection. The act has 7 schedules specifically laying down the rules
for emission or discharge of pollutants from industries, prescribing emission of smoke, etc. from
vehicles, provides a list of authorities to be approached in case of any discharge outside the
prescribed levels and standards.
Under the provision of Section 25 of EPA, 1986 another set of rules was passed “Hazardous
Waste(Management and Handling) Rules, 1989”. It includes the management of 18 categories of
waste basically all toxic chemicals which could be stored in industries and used for different
purposes. Some categories of waste which are included in this are-metal finishing waste, waste
containing water-soluble compounds of lead, copper, zinc, etc. It issues the notification that the one
generating this type of wastes or the one operating the facility which generates this type of wastes is
responsible for the proper management and handling of the waste.
The Environmental Impact Assessment Notification of 1994 includes almost all kinds of activities
which could harm the environment in any way. Through this notification, an impact assessment of
any project became mandatory. The Central Government is required to carry out an environmental

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impact assessment on a large scale before passing any project listed under the notification. It also
established a ―Right to Know‖, that is, public hearing through which the common man who would
get affected by the project is given the chance to speak out and is made aware of the project.
Basically, a lot of transparency was included in the system for the validation of any developmental
project.
The journey begins of legal principle cannot be easily understood through a case study of a very
landmark case M.C. Mehta vs. Union of India.
The principle of ―Absolute Liability‖ was established by Supreme Court after one more gas leak
(though not a major one like Bhopal Gas Tragedy) in Shriram Fertilizer Factory in New Delhi on
4th Dec 1985, where the oleum gas was leaked from the bursting of the tank containing oleum gas
which was caused by human and mechanical errors and not by any third party. This concept is of
utmost importance today.
Bhopal Gas Tragedy was an incident which opened the eyes of the legislature and made their
attention available to the environment and its protection. Even before this tragedy, laws such
as Water Act of 1974 and Air Act of 1981 existed but EPA provides an umbrella to the Central
Government for the coordination of various state and central authorities established under these
previous laws. Therefore it would not be wrong to state that had the proper legislative framework
would have existed then either this tragedy would not have occurred or the sufferings of the people
could have been made less. The CEO of the accused UCC has died and the lawsuit against him has
been shut down forever. Lack of proper and sufficient laws resulted in the loss of life of thousands of
people and leaving behind many to suffer and live in pain of the after-effects of the tragedy.

Principle of Strict Liability

This principle was to develop from a well-known case of Ryland vs. Fletcher (1868 LR 3 HL 330).
This case was decided by Lord Chancellor, Lord Cranworth and Lord Cairns.
Ryland was the plaintiff and Fletcher was the defendant in the case. Plaintiff was the occupier of the
mine and defendant owes a mill in neighbour to the mine and they propose to make a reservoir to
store water for the purpose to use in a mill and another adjacent land near to it. Defendant took the
help of agents to construct the reservoir while making it.
They did not take reasonable care and precaution and due to the heavy weight of water, the shaft
broke and the water passed into the mine of the plaintiff which cause damage to the plaintiff. While
giving the final decision Lord Cairns distinguished between the natural and non-natural use of land.
Under Ryland case, the court declares it‘s as Principle of ―Strict Liability‖ rule. The Supreme Court
got the chance to make this principle when a petition filed under Article 32 of the Constitution of
India emerged into the form of PIL (Public Interest Litigation).
A very famous case of M.C. Mehta vs. Union of India was filed in the Court of law as a PIL for the
incident which took place on 4th December to 6th December 1985, where Oleum gas was leaked
from one of the Units of Shriram Food and Fertilizers in the area of Delhi and become famous by the
name of Oleum Gas Leakage Case. During this accident, one of the advocates of Tis Hazari Court
died and many others were also affected by it at a large number.
So, an environmental activist Mr M.C. Mehta approached Supreme Court of India and filed a PIL, so
the court may take action on the matter and decide the liability and responsibility of the person for
the incident.
During that period, the court was going across the most activist stage and denied to follow the ruling
of Ryland vs. Fletcher case. Justice Bhagwati said that he cannot afford to evolve any type of
guidance and any standard liability under constitutional norms. Law has been made to satisfy the
needs of the rapid changing society and keep aside the development of the economy of the country.
All the industries which are set up in the residential locality and engaged in a hazardous toxic
chemical which will affect the health and safety of the people of locality owe an absolute
responsibility for the community to ensure them no harm or damage will be caused to them.

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The industries are under obligation to use the highest standard amount of equipment and machines to
avoid damages to a large number of the population residing nearby. They should use a filter to avoid
pollution.
Certain guidelines are given under Environmental law which needs to be followed by every industry
which is engaged with the toxic and hazardous substances to avoid pollution. If they do not follow
the guideline then their license will be cancelled by the inspection team.
So, now we can easily distinguish between both the principles of strict liability and Absolute
Liability Strict liability is applicable to all the things which exist in a place but for absolute liability,
things causing harm or damages and it must be in relation to Hazardous and toxic substance. So, on
this note, the court has narrowed down the principle of strict liability.
But the more exciting and happening part of it is that the liability of the defendant become absolute
in every manner. No matter what the damages will be caused due to the negligence on the part of the
defendant, no matter how the hazardous item escaped, what the reason is but the consequences are to
be faced by defendant only, once it is proved by the plaintiff side that the damage was caused by the
defendant through hazardous item, no excuse will be applicable to it except the case of Act of God.
Court laid down that measure will be taken to finalize the amount of compensation should be within
the capacity of the enterprise.
The rule laid down under this case was approved by Court in Charan Lal Sahu Vs. Union of India,
AIR 1990 SC 1480 where the court held that defendant has absolute liability for the act he cannot
escape by saying that he took all the reasonable care on behalf of his part.
Yet in another case of Indian Council for Environmental Legal Action vs. Union of India AIR
1996 SC 1446 the court held that ―Once the event is carried related to hazardous substance then is
liable to take all the loss caused to another person irrespective of taking reasonable care while
carrying out the activity.

Conclusion
After this act, the principle of absolute liability is given more emphasis and the Indian Judicial
system took an affirmative step by adopting this principle. Bhopal Gas Tragedy was an event whose
effect can still be seen in many newborn children who were born with abnormalities and it was very
important to give direction to all the industries established near the residential area to take all the
precaution and not to play with the precious lives of people.

Medical Negligence
This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National
Law University, Vishakapatanam. In this article, she discusses the meaning of medical negligence,
the elements that constitute medical negligence, consequences of medical negligence, duties of a
medical practitioner, rights of a patient, laws that affect the medical profession, defenses available
for the medical practitioner and exemptions for medical negligence.

Introduction
An estimated number of 2,25,000 people died due to medical malpractice or negligence which varies
from incorrect dosages and wrong diagnosis to surgical errors. Statistics show that nearly 12,000
people die per annum because of unnecessary surgery.
A study conducted by HealthGrades in 2002 found that an average of one lakh ninety-five thousand
hospital deaths in America was because of medical errors which were potentially preventable. From
1990 to 2003, 8151 medical malpractice payment reports were made filed against doctors in Illinois.
In the same period of time, 2570 medical malpractice reports were filed against physicians in Indiana
and 1,012 medical malpractice reports were filed against medical professionalists in New Mexico.

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The Journal of American Medical Association reports that 1,06,000 patients die per annum because
of the negative result of their treatment or medication. The Institute of Medicine estimates that errors
in providing or suggesting medications are the most common errors and 1.5 million people every
year are suffering injury from these mistakes.

What is Medical Negligence?

Medical negligence is the misconduct by medical practitioners or doctors by not providing enough
care and taking proper safeguards or measures resulting in the breach of their duties harming the
patients. In Moni v. State of Kerala [1], it is mentioned that in the case of the medical practitioner,
negligence way failure to act through the standards of moderately ready clinical men on the time.
There may be one or more perfectly proper or reasonable standards of care, and if he conforms to
one of these standards, then he is not negligent.
For example, if an accountant makes a mistake there will be a loss of money but if a doctor makes a
mistake there is a threat of losing a life. A doctor is always expected to be perfect as the patients see
the doctors as gods and believe them in the process of healing and the mistakes of doctors cost a life.
Medical negligence occurs because of improper, unskilled or negligent treatment provided to the
patients. Medical negligence also known as medical malpractice occurs when the medical
practitioners fail to perform their duty with the necessary amount of standard of care. Negligence is
an offense under the law of torts, Indian Penal Code, Indian Contracts Act, Consumer Protection Act
1986 and many more.

What are the essentials or ingredients that constitute the Act of Medical Negligence?
Negligence is the breach of legal duty. For example, a producer of cold drink has to ensure the
quality of the product he produces, in case if he fails it amounts to negligence. A medical practitioner
or a doctor who possess knowledge and skills for the purpose of giving advice and providing
treatment owes certain duties to his/her patients which were mentioned in the case of Dr. Laxman
Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr.[2] by the Supreme Court. The breach of
any of these duties gives a right to the patient to bring an action for negligence. These duties are:
 The duty or obligation of care in finding out whether to undertake a unique case or not.
 The duty of care in deciding what therapy or treatment that a patient is to receive in a certain
case.
 The duty of care in administering the treatment properly.
Medical negligence is caused by lack of proper care or carelessness of the medical professionals
during diagnosis, operations or while injecting anesthesia. The most common causes for medical
negligence include lack of procedural safeguards, incorrect dosages, surgical errors, operation theatre
contamination, blood transfusion contamination, mistreatment, wrong diagnosis, etc., which can be
potentially prevented by taking a proper standard of care which is required.
Every medical professional or doctor has a duty of care towards their patients and when they commit
a breach of this duty of care it causes injury to the patients and gives the patient‘s right to bring an
action against negligence. In the case of State of Haryana v. Smt Santra [3], the Supreme Court
stated that each and every health practitioner has a responsibility to act with an affordable amount of
care and skill.

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What are the duties of a medical practitioner towards a patient?
The duties and responsibilities of a physician are prescribed in the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics
Regulation, 2002 made under Indian Medical Council Act, 1956.
1. Obligation to sick – A physician or medical practitioner won‘t consistently be certain to deal
with each individual who asks for his service but he should continuously be competent to
reply to the calls of the ill and will have to be mindful of the high character of his mission or
obligation and the accountability he discharges in the direction of his professional
responsibilities. A doctor or clinical practitioner advising a patient to seek provider of an extra
health practitioner is acceptable however in the case of an emergency, a health practitioner
ought to deal with the sufferer. No health care professional shall immediately refuse to offer
to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is
suffering from an ailment which isn‘t inside the range of expertise of the treating health
practitioner.
2. Prognosis – The physician should never exaggerate or minimize the gravity of a patient‘s
condition or ailment. He will have to make certain himself that the sufferer, his family or his
in charge buddies have such knowledge of the patient‘s condition or sickness as it‘s going to
serve the nice pursuits of the patient and his/her loved ones.
3. Patience, Delicacy, and Secrecy – A physician must have patience and delicacy. The
confidentiality about the details of the patient and his ailments need to be maintained by the
physician. However, in a few cases, the physician may reveal about these matters if he feels
that his duty towards the society or any particular person is more important. For example, if
there is a new form of hazardous and transmitting disease than the confidentiality of the
disease cannot be kept.
4. The Patient must not be neglected – A physician or a doctor is free to choose whom he will
treat or serve but he should respond to any request or need for his assistance in case of an
emergency. After undertaking a case, the health care professional must now not forget the
sufferer and must no longer withdraw from the case without giving sufficient information to
the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor
should not willfully commit any act of negligence that may deprive his patient or patients of
the required standard of medical care.
5. Engagement for an Obstetric case – When a physician who has been engaged to attend an
obstetric case is absent or unavailable and another physician or doctor is sent for and delivery
accomplished, the acting physician or doctor is entitled to get his professional fees, but should
secure the patient‘s acceptance or consent to resign on the arrival of the physician engaged.

Acts of Misconduct
 Abuse of Professional position – They should not attempt to do misconduct by using the
position in their profession. Committing adultery or improper conduct or maintaining an
improper association with a patient constitutes professional misconduct.
 Not taking the consent of Patient – Performing an operation without taking the consent or
acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient
himself as the case may be, constitutes misconduct. In an operation which may result in
sterility, the consent of both husband and wife is required.
 Violation of regulations and laws – The medical professionals must follow the rules and
regulations regarding the duties and responsibilities laid down in the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002.

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What are the rights of the patients?
The Ministry of Health and Family Welfare (MoHFW) has released a ‗Charter of Patients Rights‘
prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights
according to the Constitution of India.

Right to know the information – Physicians or their qualified assistants are required to provide
ample information about your sickness, its analysis (provisional or demonstrated, as it usually is),
proposed investigation and feasible complications to the patient. If the sufferer will not be in a state
to recognize this, the health care provider or their assistant is required to furnish the information to
the caretaker. This has to be accomplished in a simple language that the patient or caretaker will
appreciate. Apart from this, sufferers have the right to grasp the identity and respectable repute of
every medical professional and assistant as good as the major health practitioner who‘s treating
them. Expertise concerning bills of medication wants to be given in writing.

Right to see and check records and reports related to their ailment – Patients or their respective
caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents,
and investigation studies. Investigation experiences must be made to be had to them within 24 hours
of admission or seventy-two hours of discharge. The hospital is accountable for providing a
discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of
the sufferer with customary copies of investigations.

Right to receive medical care during an emergency – In the case of an emergency, you can avail
hospital treatment in any executive or confidential health facility. Underneath Article 21 of the
structure, which ensures that every person has the proper right to life and private liberty, you have
got proper right to prompt emergency care with the aid of medical professionals without compromise
on the standards of care, safeguard and without needing to pay full or an advanced cost to the health
center.

Right to give informed consent – If a hospital decides upon carrying an invasive investigation or
surgery or chemotherapy on a patient, they require to do so after finishing a correct policy system.
The general practitioner specifically in control of a patient has to provide an explanation for the
risks, consequences, and process of the investigation or surgery in the element and an easy language
before supplying the protocol consent type to the sufferer or to the responsible caretaker.

Right to have confidentiality, human dignity and privacy related to their ailment – Now this
one is a particularly identified right, mainly for those who follow television suggests about hospitals
or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the
ailment and medication plan for the patient in strict confidentiality from all people besides the patient
and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest
of shielding others or because of public well-being issues. Within the case of a feminine patient, she
has the proper to demand the presence of another girl if the clinical practitioner checking or treating
her is male. Having stated this, the medical institution is accountable for upholding the respect of
every patient, irrespective of their gender.

Right not to be discriminated on any basis regarding medical care – This point brings us to the
rights of a patient being upheld without discrimination established on their ailment, situation, HIV
reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or
geographical or social origins. Headquartered on the above traits, no person may also be subjected to
discriminatory treatment, and the employees of the clinic are liable for ensuring this.

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Right to safety and quality care according to standards of required medical care – There is a list
of provisions that come under the list of quality care standards. This includes Safety and security,
Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare
that abides by the latest standards, norms, and guidelines under the National Accreditation Board for
Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of
medical ethics and the right to seek redressal by patient or caretakers.

Right to choose or select any alternative treatment to cure their ailment if options are available
– Hospital employees and medical professionals are dependable for clarifying all cure choices to the
sufferer/caretakers. After a radical gain knowledge of their alternatives, the patient/caretakers can
prefer to select a cure that will or is probably not the surgeon‘s main recommendation. This also
signifies that once the patient/caretakers prefer this substitute healing, they‘re going to shoulder the
accountability of its consequences.

Right to have transparency in the cost of the treatment and care according to the prescribed
cost whenever relevant – As acknowledged, the patient has the correct to have a written account of
the costs they‘ll have to endure for the remedy they‘re receiving. As evidence for this, hospitals are
required to have printed brochures and distinguished display boards bearing the names and rates of
clinical tactics which can be to be had with them. Particular schedules of key charges need to be
displayed in conspicuous places and must be in both, English as good as the neighborhood language.
Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of
the countrywide Pharmaceutical Pricing Authority (NPPA) and other imperative authorities. Patients
have the right to acquire health care offerings that fee inside the variety prescribed through the
critical and State governments, on the time of receiving it.

Right to choose or select the source for buying medicines or doing tests – As a patient or a
caretaker, you‘ve gotten the correct to decide upon which registered pharmacy you want to purchase
your scientific provides from. This also entails getting an investigation system (like a blood
experiment, for illustration) from any diagnostic center or laboratory registered beneath the national
Accreditation Board for Laboratories (NABL).

Right to choose or select proper referral and transfer, which is free from contradictory
commercial influences – If a patient must be transferred from one healthcare center to one other, a
right and unique justification need to take delivery of to them/caretakers along with various options
of the brand new healthcare center. They have got to additionally take delivery of a record of
cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken
unless the patient or their caretaker be given it. Understand that, these selections are not able to be
influenced by factors like ―kickbacks, commissions, incentives, or other perverse trade practices.‖

Right to protection for the patients who are involved in the clinical trials – Consistent with the
Ministry of Health and Family Welfare (MoHFW), ―All scientific trials need to be carried out in
compliance with the protocols and good scientific apply recommendations issued through services,
Govt. Of India as good as all applicable statutory provisions of Amended drugs and Cosmetics Act,
1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate
basic of wellness.‖ These aspects incorporate consent through the sufferer, written prescription of
medicinal drugs or intervention, privacy, and many others.

Right to protection of participants who are involved in biomedical and health research – In
case a patient is involved in a biomedical or health study system, their consent wishes to be taken in
a written format. Their correct to dignity, privateness, and confidentiality wants to be upheld even for

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the period of the research. If the participant suffers direct bodily, psychological, social, legal or
financial damage, they are eligible for financial or other help by using the medical institution.
Anything advantages the hospital gets from the study need to be made to be had to valuable
individuals, communities and the overall populace.

Right to be discharged or right to receive or take the body of a deceased person from the
hospital – ―A patient has the right to be discharged and cannot be detained in a hospital, on
procedural grounds such as a dispute in payment of hospital charges. Similarly, caretakers have the
right to the dead body of a patient who had been treated in a hospital, and the dead body cannot be
detailed on procedural grounds, including non-payment/dispute regarding payment of hospital
charges against wishes of the caretakers,‖ says the Ministry of Health and Family
Welfare (MoHFW).

Right to get the education that a patient requires to know about his ailment or disease – There‘s
a list of things that a sufferer wants to be advised about by the medical institution. These have got to
be addressed within the language that the sufferer/caretaker knows. This entails main details about
their, healthy living practices, their rights and responsibilities, well-being coverage schemes
significant to them, relevant entitlements (for charitable hospitals)and how to search redressal of
grievances.

Right to be heard and seek redressal about his ailment or disease – Last but not the least, every
patient has the proper to address his grievances and give feedback about the healthcare and remedy
they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family
Welfare (MoHFW) extra provides, ‖ sufferers and caregivers have the correct to seek redressal in
case they are aggrieved, by reason of infringement of any of the above-recounted rights on this
charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this
cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted
by the federal government corresponding to sufferers‘ rights Tribunal forum or scientific
organizations regulatory authority because the case could also be.

What are the consequences of Medical Negligence?

Civil or monetary liability
Liability under the Consumer Protection Act
All the medical services fall under the purview of the Consumer Protection Act 1986. The interests
of the consumers are been protected against the deficiency of services. Section 2 (1) of the Consumer
Protection Act defines the ‗deficiency of service‘ means any fault, imperfection, shortcoming, or
inadequacy in the quality, nature, or manner of performance that is required to be maintained by or
under any law for the time being in force or has been undertaken to be performed by a person in
pursuance of a contract or otherwise about any service. For example, in the case of Indrani
Bhattacharjee v. Chief Medical Officer and Ors.[4] the ECG of the patient was not normal and the
doctor failed to advise the patient to consult a cardiologist and also to reduce smoking and drinking,
and instead gave him medicines for gastric trouble which amounted to deficiency in service.
In Kusum Sharma v. Batra Hospital and Medical Research Center and Ors.[5], the court has
observed that when the medical practitioner fails to maintain the standards of reasonable care or
competence then he/she will be held liable for medical negligence, which gives rise to the deficiency
in medical service in terms of Section 2 (1) (g) of Consumer Protection Act.
In the case of Kidney Stone Center v. Khem Singh Alias Khem Chand [6], the patient was suffering
from stone in the urethra. The defendant‘s company promised to remove it without surgery on
payment of ten thousand rupees but failed to do so. The District Consumer Forum ordered to refund
the amount along with the interest.

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Doctors are not held liable either individually or vicariously if they do the treatment or service
without charging their patients. Therefore, free treatment at government or non-government hospital,
health care center, dispensary or a nursing home cannot be considered as service as defined
in Section 2 (1) (o) of the Consumer Protection Act, 1986. Hence, the contract of service is beyond
the sphere or ambit of the Consumer Protection Act. The Act cannot rescue the patients in case if
they took free service or paid only a nominal fee for registration. However, if the charges of the
patients‘ are waived due to their incapacity to pay then they are considered as consumers and can sue
under the Consumer Protection Act.
The medical practitioners or doctors will be held liable for their services unless they come within the
exceptions mentioned in the case of the Indian Medical Association v. P Santha[7] and the court held
that even though the services provided by the doctor or a medical practitioner are of personal nature
the patients can‘t be treated as contracts of personal service. They are contracts for service under
which a doctor can be sued in the Consumer Protection Courts.
The complaints under the Consumer Protection Act can be filed at
1) The District Forum if the value of services and compensation claimed is less than 20 lakh rupees,
2) Before the State Commission, if the value of the goods or services and the compensation claimed
is below 1 crore rupees, or
3) In the National Commission, if the value of the goods or services and the compensation exceeds
more than 1 crore rupees.
There is a minimal fee for filing a complaint before the District Consumer Redressal Forums.

Liability under the Law of Torts

The tort law begins where the Consumer Protection Act ends to protect the interests of the patients.
People usually file a complaint under tort or civil law in order to get compensation. For instance, if
there is a breach of duty of care when the patient is under the supervision of the hospital then the
hospital will be held vicariously liable to pay for the damages in the form of compensation.
In the case of Dr. Balram Prasad v.Dr Kunal Shah and Ors.[8] the Supreme Court has awarded the
highest amount of compensation i.e., an amount of six crores plus interest which makes a total
amount of twelve crores as compensation as the case was pending for the past fifteen years for
medical negligence which led to the death of petitioner‘s wife.
Sometimes, a senior doctor can be held responsible for the acts done by the junior doctor. If the
employee of the hospital acted negligently and incompetent while dealing with the patient then the
hospital will be held responsible for the act. In Mr. M Ramesh Reddy v. State of Andhra
Pradesh[9], the hospital authorities were found to be negligent as they did not keep the bathroom
clean, which resulted in the fall of an obstetrics patient in the bathroom and lead to her death. The
court awarded a compensation of one lakh was awarded against the hospital.
In the case of Lakshmi Rajan v. Malar Hospital Ltd [10], the patient was a forty-year-old married
woman who noticed the development of a painful lump in her breast and went to the Malar Hospital
Ltd for examination, diagnosis, and treatment. Her uterus was removed though the lump had no
effect on it. This ended her hope for a child. The hospital was held liable to pay compensation of two
lakh rupees to the complainant.
A doctor has an obligation of providing proper treatment with the required amount of care in order to
cure the patient. Failure of a doctor or a medical practitioner to discharge of this obligation
essentially results in tortious or civil liability. In Hunter v. Hanley [11] the court has stated that ‗a
doctor can be held liable for negligence only if it is proved that she/he is guilty of a failure to take
reasonable amount of care that no doctor with ordinary skills would be guilty of if acted by taking a
reasonable amount of care‘.
Certain conditions have to be considered before held liable. The person must have committed an act
or an omission which has been a breach of his legal duty and caused harm or injury to the patient.
The complainant must prove the allegation against by submitting the best evidence available in the

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medical science and by presenting a professional or expert opinion and this principle was used in the
case of Dr. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole[12].

The principle of Res Ipsa Loquitur

It‘s well authorized that in the circumstances of gross medical negligence the principle of res ipso
loquitur is to be utilized. The law of res ipso loquitur is declared to be essentially an evidential
policy and the stated principle is designed to assist the petitioner or the claimant. Res Ipso
loquitur deals with the matters which speaks for itself; even as finding out the liability of the
physician it has to be well established that the negligence mentioned must be a breach in due care
which a traditional practitioner would have been ready to keep.
Latin for ―the thing speaks for itself,‖ a doctrine of law that one is presumed to be negligent if the act
of the person clearly shows that it is the reason the injury caused to the patient although, there is no
distinctive evidence of an act of negligence, and without negligence, the accident should not have
happened. A general practitioner will not be an insurer for the sufferer, lack of ability to medication,
the patient would not amount to negligence, however, carelessness ensuing in the hostile situation of
the patient would.
In some situations, the claimant can invoke the principle of res ipsa loquitur which means the thing
speaks for itself. Sometimes, no proof of negligence is required or needed beyond the accident itself.
This principle was applied in the case of Dr. Janak Kantimathi Nathan vs Murlidhar Eknath
Masane[13].
In Gian Chand v. Vinod Kumar Sharma[14], the hospital authorities shifted the patient from one
ward to another instead of changing the treatment that has been given to the patient. This resulted in
damage to the patient‘s health and the hospital authorities were held liable for negligence.
In Jagadish Ram v. State of Himachal Pradesh[15], the court has held that before performing any
surgical procedure, the chart revealing understanding concerning the quantity of anesthesia advert
allergies of the patient should be mentioned in order that an anesthetist can provide a plentiful
amount of drug treatments to the sufferer. The health care professional in the above case failed to do
so, therefore, because of the overdose of anesthesia the patient died and the doctor was once held
liable for the identical.

Criminal liability
In the case of State of Haryana v. Smt Santra [16], the Supreme Court has stated that the liability in
civil law is based on the damages incurred and in criminal law, the degree of negligence is a factor in
determining the liability. However, the elements like the motive or the intention behind the offense,
the magnitude or degree of the offense and the character of the offender must be established to
determine the criminal liability.
In Jacob Mathew v. State of Punjab & Anr.[17], the court has stated that ‗a very high degree of
negligence is required to be proved for imposing criminal liability.‘ The Criminal liability for
medical negligence may be imposed if
 The doctor was not possessed of the requisite skill which he claimed to possess or
 He possessed the skill but did not exercise, with reasonable care and competence in the given
case.
In Poonam Verma v. Ashwin Patel [18], the Supreme court has distinguished between negligence,
recklessness, and rashness, and also defined what amounts to criminal liability. It stated that a person
is said to be acted in a negligent manner when he/she unintentionally commits an act or omission that
causes a breach of his/her legal duty. A person who acted in a rash manner when he/she knows the
consequences but foolishly thinks that they won‘t occur as a result of his/her act. A reckless person
knows the consequences but doesn‘t care whether or not they result from his/her act. The Court has
stated that ‗any conduct falling short of recklessness and deliberate wrongdoing should not be the
subject of criminal liability. ‘

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A doctor can be held liable under criminal law if it is shown that he/she was negligent or
incompetent in performing their duty, with such disregard for a patient‘s right to life and right to
safety of his patient‘s that it amounts to a crime against the State. This principle was used in the case
of R vs Adomako [19].
Sections that are often applied to deal with the cases of medical negligence under criminal liability
are –
 Section 304-A of Indian Penal Code – A person who commits a rash or negligent act which
amounts to culpable homicide will be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
 Section 337 of Indian Penal Code – A person who commits a rash or negligent act which
threatens human life or personal safety of others will be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend to five
hundred rupees, or with both.
 Section 338 of Indian Penal Code – A person who commits a rash or negligent act which
threatens human life or personal safety of others will be punished with imprisonment of either
description for a term which may extend to two years, or with fine which may extend to one
thousand rupees, or with both.

Disciplinary action
The punishments and disciplinary action for medical negligence and misconduct are mentioned in
chapter 8 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations,
2002 made under the Indian Medical Council Act, 1956.
If a medical practitioner is found guilty of committing misconduct by the appropriate Medical
Council then he will be awarded the certain punishments which include
 Removing the name of the medical practitioner from the register of medical practitioners
forever or for a specific period of time.
 During the pendency of the complaint, the council may restrain the medical practitioner from
performing the procedure or practice under scrutiny.
 The removal is widely publicized through local press and publications of different Medical
Associations or bodies.

What are the defenses available for a doctor under the Indian Penal Code?
 Section 80 of Indian Penal Code – Anything which is done by accident or misfortune and
without any criminal intention or knowledge in the doing of a lawful act in a lawful manner
by lawful means and with proper care and caution is not an offense.
 Section 81 of Indian Penal Code – Anything which is done merely by reason of it is being
done with the knowledge that it is likely to cause the harm, if it is 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 is not an offense.
 Section 88 of Indian Penal Code – No person can be accused of an offense if he/she
performs an act in good faith for the benefit of the other person, does not intend to cause harm
even if there is a risk and the patient has explicitly or implicitly given consent.

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What are the laws that affect the medical profession?
There are few laws or provisions which affect the medical profession and it‘s working. These are the
laws which prevent medical negligence or malpractice and protects the interests of the patients. They
are
 Article 21 of the Indian Constitution – It states that no person shall be deprived of the right
to life and personal liberty except according to the procedure established by law.
 Article 32 of the Indian Constitution – It speaks about the Right to Constitutional
Remedies. The apex court is given authority to issue directions, orders or writs and is
considered as the protector and guarantor of Fundamental Rights.
 Article 41 of the Directive Principles of State Policy – The State can, within its jurisdiction,
make effective provision for securing the right to work, to education and to public assistance
in cases of unemployment, old age, sickness and disablement, and in other cases of
undeserved want.
 Article 42 of the Directive Principles of State Policy – The State can make provisions for
securing just and humane conditions of work and for maternity relief.
 Article 47 of the Directive Principles of State Policy – The State can regard the raising of
the level of nutrition and the standard of living of its people and the improvement of public
health as among its primary duties and, in particular, the State can endeavor to bring about
prohibition of the consumption of intoxicating drinks and of drugs which are injurious to
health except for medicinal purposes.
 Section 52 of Indian Penal Code – Anything which is done without due care and attention
cannot be considered as an act done in good faith.
 Section 80 of Indian Penal Code – Anything which is done by accident or misfortune and
without any criminal intention or knowledge in the doing of a lawful act in a lawful manner
by lawful means and with proper care and caution is not an offense.
 Section 81 of Indian Penal Code – Anything which is done merely by reason of it is being
done with the knowledge that it is likely to cause the harm, if it is 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 is not an offense.
 Section 88 of Indian Penal Code – No person can be accused of an offense if he/she
performs an act in good faith for the benefit of the other person, does not intend to cause harm
even if there is a risk and the patient has explicitly or implicitly given consent.
 Section 90 of Indian Penal Code – If the consent is given by an individual underneath worry
of damage, or beneath a false impression of fact, and if the individual doing the act knows, or
has intent to think, that the consent used to be given consequently of such fear or
misconception; or Consent of insane character, if the consent is given by way of a man or
woman who, from unsoundness of intellect, or intoxication, is unable to appreciate the
character and outcome of that to which he gives his consent; or Consent of little one, unless
the contrary seems from the context, if the consent is given by means of a character who‘s
under twelve years of age.
 Section 92 of Indian Penal Code – Nothing is an offence by using cause of any harm which
it will intent to a person for whose improvement it‘s finished in just right faith, even without
that character‘s consent, if the instances are such that it‘s not possible for that individual to
suggest consent, or if that character is incapable of giving consent, and has no guardian or a
different man or woman in lawful charge of him from whom it‘s possible to receive consent
in time for the object to be done with advantage. First of all, this exception shall not prolong
to the intentional causing of loss of life, or the making an attempt to motive dying. Secondly,
that this exception shall now not extend to the doing of something which the man or woman
doing it knows to be more likely to reason death, for any motive rather than the stopping of
death or grievous damage, or the curing of any grievous sickness or infirmity. Thirdly, that

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 this exception shall no longer extend to the voluntary inflicting of hurt, or to the making an
attempt to cause harm, for any reason as opposed to the stopping of dying or hurt. Fourthly,
that this exception shall no longer lengthen to the abetment of any offense, to the committing
of which offense it would now not extend.
 Section 304-A of Indian Penal Code – A person who commits a rash or negligent act which
amounts to culpable homicide will be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
 Section 337 of Indian Penal Code – A person who commits a rash or negligent act which
threatens human life or personal safety of others will be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend to five
hundred rupees, or with both.
 Section 338 of Indian Penal Code – A person who commits a rash or negligent act which
threatens human life or personal safety of others will be punished with imprisonment of either
description for a term which may extend to two years, or with fine which may extend to one
thousand rupees, or with both.

What are the exemptions for Medical Negligence?

Doctors are not held liable either individually or vicariously if they do the treatment or service
without charging their patients. Therefore, free treatment at government or non-government hospital,
health care center, dispensary or a nursing home cannot be considered as service as defined
in Section 2 (1) (o) of the Consumer Protection Act, 1986. Doctors will be held liable for their
services unless they come within the exceptions mentioned in the case of the Indian Medical
Association v. P Santha[20].
The doctors cannot give a warranty to act in a perfect manner or a guarantee of cure to the patient. If
the doctor has adopted the right course of treatment for the patient, is skilled and has worked with a
proper method and manner that suits the patient at best then she/ he cannot be blamed for negligence
even if the patient is not totally cured as stated in the case of Savitri Devi v. Union of India [21].
Conclusion
Medical negligence is the misconduct by medical practitioners or doctors by not providing enough
care and taking proper safeguards or measures resulting in the breach of their duties harming the
patients. It occurs because of improper, unskilled or negligent treatment provided to the patients.
Every medical professional or doctor has a duty of care towards their patients and when they commit
a breach of this duty of care it causes injury to the patients and gives the patient‘s right to bring an
action against negligence. The act of medical negligence results in civil liability, criminal liability
and disciplinary action.

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Death in Relation to Tort
Introduction
Wide variety of claims is covered under the law of torts. The claim for compensation is usually
brought by the person who has sustained the injury against the person who is responsible for such
injury. What would be the case if the person to whom the injury is caused dies? Can the
representatives of the deceased claim for the compensation?
The topic can be studied under two broad heads:
 How does the death of one of the parties affect the cause of action
For example, A has a cause of action against B, and either of the parties during the proceedings, the
question that arises here is that will the cause of action survive? Thus, to say in other words, can the
representatives of A sue B on behalf of A or if B dies can the representatives of B sue A?
 Secondly, How far is causing death actionable in tort
The question here is, if A‘s death is caused because of the act of X, then how his act gives right to
the legal representatives of A to make X liable.

What is the effect of death on the subsisting cause of Action?

According to the English common law, no cause of action arises against the person who is dead. This
rule was contained in the maxim ―Actio personalis moritur cum persona‖, the cause of action dies
with the person, thus, if any of the parties die, cause of action comes to an end.
The application of the maxim in India can be seen in the case of :
Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital
Facts
A complaint was filed by Balbir Singh Makol against the surgeon alleging that his son died because
of the blunder committed by the surgeon. While the proceedings were going on, the Surgeon died.
Held
The National Commission applied the maxim ―Actio personalis moritur cum persona‖ and held that
with the death of the surgeon the cause of action has also come to an end and therefore, the legal
heirs of surgeon cannot be made liable for the same.
Exception to the maxim ―Actio personalis moritur cum persona‖
There are two exceptions to the maxim ―Actio personalis moritur cum persona‖:
1. Action under Contract: The maxim does not apply to the cases where an action is brought
under the law of contract, therefore the legal representatives of the person can be made liable
for the performance. However, if the contract entered into is a contract of personal service,
then the legal representatives would not be liable for the performance. Thus, for example,
there is a contract with A for singing on a particular event and meanwhile, A dies, then the
representatives of A cannot be made liable for the performance.
 Unjust enrichment of tortfeasor‘s estate: If someone, before his death has wrongfully
appropriated the property of another person then the person whose property has been
appropriated does not lose his right to bring an action against the representatives of the
deceased and recover the property. The rationale behind it is that, only the thing actually
belonged to the deceased can be passed to his representatives.

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The Action by or Against the Estate of the Deceased
The passing of Law Reform (Miscellaneous Provisions) Act, 1934 has abrogated the maxim, thus
providing that the cause of action does not die with the death of the person. It means that the
subsisting cause of action survives in spite of the fact that either of the parties has died.
The Law Reform (Miscellaneous Provisions) Act, 1934
 The Act, allowed to be sued and bring an action for the claim against the estate of the
deceased.
 Section 1(1) of the Act provides that on the death of the person all causes of action subsisting
against or vested in him, shall survive for the benefit of his estate.
 Exceptions
o Claim for Defamation
o Claim for bereavement damages (shall be discussed later)
o Defamation: According to Common rule, the deceased cannot be defamed.
Defamation is an act or a statement that damages one‘s reputation and it is
considered that the dead have no reputation to be damaged.
Similarly, no cause of action arises against the deceased, as the cause of action in defamation is a
personal one that does not survive death.
 When the deceased estate brings an action against the wrongdoer, it must prove that the
deceased had the ―cause of action‖ which was ―vested in him‖ at the time of death.
 Action against the Estate of the deceased: The time is a crucial factor when the deceased
estate is sued by the claimant.
Section 4 of the act provides that, if the damage has been caused because of the act or omission of a
person and the person dies before or at the same time when the damage was caused, then an action is
deemed to have been subsisted before his or her death.
For Example, If in the case of Donoghue v. Stevenson, the manufacturer of ginger wine dies before
the claimant had consumed the beer and suffered from a serious illness, then the claimant action is
preserved under Section 4 of the Act and therefore, the estate of the deceased can be sued.
 What can the Estate of Deceased Claim
Section 1 (2)(c) of the act provides that the estate of the deceased can claim the funeral expenses in
addition to all the damages which the deceased could have claimed up to the date of his death.

Provided that the funeral expenses should be reasonable.

The Estate may recover for any physical injury and pain, suffering and loss of amenity. Provided that
such damages must be sustained by the deceased prior to his death. If the damages are sustained after
the death then the estate cannot claim for such damages.
Case law
Hicks v. Chief Constable of South Yorkshire
Facts
The estate of two sisters brought an action against the defendants for the fear and terror which the
sisters would have suffered prior to death.
Held
The House of Lords held that fear by itself, of whatever degree, is a normal human emotion for
which no damages can be awarded.
 The Administration of Justice Act, 1982
The Administration of Justice Act, 1982 has curtailed the heads of the damages that can be awarded.
Section 1(2) of The Law Reforms (Miscellaneous Provisions) Act, 1934, has been amended by
Section 4 (2) of the Act.
1. No damages to be awarded for the loss of Income in respect of any period after death.
2. Excludes exemplary damages

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Shortening of the expectation of life
One of the consequences which may attend physical injury is a shortening of expectation of life, so
that the injured person cannot in any possibility survive as long as he would otherwise have done.
If the expectation of life has been reduced because of the injuries caused by the defendant then the
person is entitled for the compensation.
The compensation under this head for the first time was given in the case:
Flint v. Lovell
Facts: the Plaintiff aged 69 years who was otherwise very active was injured in an accident caused
because of the negligence of the defendant.
Held: The appellant court granted compensation to the plaintiff.
 Damages in Case of Shortening of Expectation of Life
In Benham v. Gambling, the House of Lords laid down certain principles to determine the quantum
of damages, in situations where a person‘s normal life span of life is shortened because of the wrong
committed by the Plaintiff.

What is the test to determine Compensation?

1. The test to determine compensation depends upon the prospect of a predominantly happy life
rather than the length of the time of life of which the person has been deprived.
2. The test of happiness of life is objective rather than subjective
3. Very moderate damages are awarded under this head
4. The economic and social position of the deceased is not taken into account while accessing
the damages because the happiness of life does not necessarily depend on such things.

How far is causing death actionable in Tort?

Position in England
According to the common rule, the cause of action for smaller injuries lies in the civil law but death
of a person cannot be termed as an injury and thus does not come under the purview of Civil law.
Presently in England, when it is proved that the death has been caused because of the act of the
defendant‘s tort, the plaintiff is entitled for special damages. The modern position is thus, that the
tort actions have a life of their own and do not die with the death of either of the parties. However,
the old rule is still followed in the cases which involves the disputes of very ―personal‖ nature, for
example, Defamation.
Rule in Baker v. Bolton
The rule, causing the death of a person is not a tort was laid down in the case of Baker v. Bolton, and
is therefore known as the rule in Baker v. Boulton.
In this case the plaintiff was held entitled for injury to himself and also the loss of wife‘s society and
distress, from the date of the accident till her death but not for any loss caused after death.
Exception to the rule in Baker v. Bolton
However, there are certain exceptions available to the rule in Baker v. Bolton which are discussed
below:
 Death due to breach of contract: Although, causing the death of the person is not actionable
under the law of tort but if the death is the result of the breach of contract then the fact of
death can be taken into account to determine the damages payable on the breach of Contract.
Jackson v. Watson
Facts
Plaintiff purchased a tin of Salmon from the defendants . Wife of the plaintiff died because of the
consumption of salmon supplied by the defendants. It was found that the contents of the Salmon
were injurious to health.
Held

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It was held by the court that there was a breach of contract as the defendant has failed to supply the
goods safe for consumption and hence, the plaintiff was held entitled to claim compensation for the
loss of service of the wife due to her death.
 Compensation for death under various statutes: In England there are various statutes which
contains the provisions for compensation on the death of a person. Some of them are:
1. The Coal-Mining (Subsidence) Act, 1957
2. The Carriage by Air Act, 1961
3. The Carriage of Passengers by Road Act, 1974
4. The Merchant Shipping Act, 1979
5. The Fatal Accidents Act, 1976
However, these acts except the fatal accidents act, 1976 are not related to the tort and are thus not
discussed here.
Dependent‘s Action
 The Fatal Accidents Act, 1976:
The fatal accidents act, 1846 which is also known as Lord Campbell‘s Act, was passed in response to
the increasing number of fatalities on railways leaving the family members of the deceased
unsupported. The governing statute is now the fatal accidents act, 1976.
Dependency Claims
 When can the dependents bring an action for the Claim
Section 2(2) of the Act provides that if there are no executors or administrators of the deceased or no
action is brought by them with the six months of the death then the dependents of the deceased are
entitled to bring an action.
 Dependent‘s entitled to ―specific damages‖: Wrongful death of a person enables the
dependents of the deceased to recover specific damage for the deprivation of financial income
or financially measurable support caused because of the death of a person.
 Dependent‘s action is both derivative from and independent of, the deceased‘s claim: It is
derivative because the dependent claim depends on the validity of any claim which would
have been to the deceased. Thus, if the claim was barred for the deceased then it will be
barred for the dependent as well.
It is Independent because the dependents claim is for damages sustained by them personally.
 The Deceased must have been able to claim against the defendant: Section 1(1) of the 1976
act provides that an action will succeed only if the wrongful act, default which caused death,
is such that if the person had not died, would have been entitled to bring an action and claim
damages from the defendant thereof.

Thus, there are three essentials to bring a successful action against the defendant:
1. The defendant must have committed a tort
2. The tort of the defendant resulted in the death of a person
3. The deceased would have been entitled to bring an action against the defendant, if he had not
died
 The Dependent must be appropriate claimant under the Act
The act recognizes an action only for the benefit of certain dependents of the deceased. The
dependents, in whose favour such an action has been recognized, are:
1. The spouse or the former spouse of the deceased
2. Any parent or other ascendant of the deceased
3. Any person who was treated by the deceased as his parent
4. Any child or other descendent of the deceased
5. Any person who was treated by the deceased as a child of the family
6. Any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

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Who can not claim
1. Cohabitants who were living together as husband and wife but do not satisfy the ‗two year
rule‘
2. Children who were not of the deceased but who were supported by the deceased whilst he or
she was engaged in a marriage-like relationship with their parent
3. Children otherwise supported by the deceased such as friend‘s children
4. Certain distant relatives supported by the deceased such as a great-nephew supporting a great-
aunt
5. Non-relatives who live together but do not enjoy a marriage-like relationship
In Kotke v. Saffarini, the deceased died in a car accident. A claim was brought by the partner of the
deceased. She was not the spouse of the deceased and had not been living with the deceased in the
same house for 2 years.
It was held that the plaintiff was not the dependent of the deceased and was not entitled to bring an
action against the defendant
The Dependent must have suffered a loss of dependency
To determine the amount of damages it is important to look upon as to what was the likely benefit to
the claimant or dependents if the deceased had survived.
In Taff Vale Rail Co. v. Jenkins, the father of a 16 year old girl was held entitled for the
compensation as the girl would have earned substantial amount in the near future after the
completion of her apprenticeship.
In assessing the future loss which are likely to arise, the prospects of the dependent‘s may also be
taken into account. Thus, while assessing loss to the widow because of her husband‘s death, her
prospects of remarriage were taken into consideration in the case Curwen v. James, in this case, a
woman was granted compensation by the trial court when there was no evidence of the likelihood of
remarriage but the widow remarried before the expiry of the time of appeal and therefore, the court
of appeal redressed the damages accordingly.

The action must not be barred or excluded

For Example: where the deceased has settled their claim, where the deceased was entirely at fault or
where the defence was available against the deceased.
Contributory Negligence
Section 5 of the Fatal Accidents Act 976 states that where a person dies as the result of partly his
fault and partly of the other, so that the damages would have been reduced under the Law
Reform(Contributory Negligence) Act , then the damages recoverable by the dependents would be
reduced to a similar extent.

Damages
 The purpose of providing damages to the dependents of the deceased under Fatal Accidents
Act, 1976 is to provide the capital sum to cover the material comforts to the dependents which
the deceased would have provided to those dependents if he had not died.
 Section 3(2) of the 1976 Act, provides that damages must be divided among the dependents in
such shares as may be directed.
 In Knauer v. Ministry of Justice, it was held that the multiplier is calculated from the date of
trial and not from the date of death.
 The Fatal Accidents Act, 1976 provides only for the loss of dependency and not for the
recovery of business losses.
Burgess v. Florence Nightingale Hospital of Gentlewomen
FACTS: The plaintiff and his wife were professional dance partners. Plaintiff‘s wife died because of
the defendant‘s negligent act. The plaintiff brought an action against the defendant hospital to claim
for the business losses that he suffered due to the death of his wife.

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HELD: The plaintiff was held not entitled for the compensation as no services were rendered by the
wife to the husband.
 Dependents can claim for pecuniary losses such as loss of financial support, benefits in kind,
as well as non-pecuniary losses like loss of care and attention, domestic services etc.
 Section 3(3) of the 1976 Act, provides that while assessing the widow‘s claim in respect of
her husband‘s death ―there shall not be taken into account the re-marriage of the widow or her
prospects of re-marriage.‖ However, this has been changed now and the future prospects of
re-marriage are taken into account.
 The deceased‘s divorce aspect could be taken into account and the multiplier could be
reduced to that effect.
 In assessing the damages, any benefits accrued to the dependent or which will or may accrue
to the dependent as a result of deceased death are discarded.

Bereavement
 Section 1A of the 1976 Act provides that damages can be awarded for mental distress (such as
sorrow,grief, loss of enjoyment)
 Claim for damages under this head are available only to:
1. Wife or Husband of the deceased, or the Civil partner
2. The parents of the child, if the deceased was unmarried minor child
3. The mother of an illegitimate unmarried child
 Minor or the adult child is not eligible to bring an action under this had.

Position In India
There is not much difference in the position of India from that of England regarding an action for
compensation on the death of a person. There are various statutes in India which allows the
compensation to the representatives of the deceased. Some of the examples are:
1. The Workmen‘s Compensation Act, 1923
2. The Indian Railways Act, 1890
3. The Carriage by Air Act, 1972
4. The Air Corporations (Amendment) Act, 1971
5. The Fatal Accidents Act, 1855

Fatal Accidents Act, 1855

The act recognizes certain dependants and tort actions, on the death of a person. Section 1-A of this
Act contains that the death of a person caused by the wrongful act, neglect or default is actionable
and every such action or suit shall be for the benefit of the wife, husband, parent and child. The
dependents recognized under Section 1-A of the act are wife, husband, parent and child. The term
parent includes father, mother, grandfather and grandmother, and the term child includes son,
daughter, grandson and granddaughter.
In Budha v. Union of India, it was held by the court that an action by the brother of the deceased is
not maintainable as he is not recognized as legal representative under section 1-A of the act.

Payable compensation under a statute

If a statute specifies the payment of some compensation in the event of the death of a person, then
the compensation can be claimed on that basis.
In a case where the appellant‘s husband died because of the electric shock after coming in contact
with the live wire. The high court ordered the payment of Rs. 30,000 as compensation on the basis of
the circular issued by the Maharashtra State Electricity Board. Before the compensation case was
closed, the Maharashtra State Electricity Board issued another circular increasing the sum to Rs.

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60,000. It was held by the court that since the amount was increased before the compensation case
was closed, the appellant‘s are entitled for the increased amount of the compensation.

Conclusion
Earlier, the common rule was, smaller injuries fall within the purview of civil law and not the death
of a person. But now, if the legal representatives of the deceased prove that the death was the direct
cause of defendant‘s tort, they would be entitled to special damages along with general damages.
Under English common rule, no cause of action arises against the person who is dead. However, the
situation is quite different today, and the legal representatives are entitled to bring a legal action in a
court of law. Similarly, the legal representatives of the deceased can be made liable in certain cases.
In India, the dependents in actual practice includes, brothers, sisters, uncle and aunt because of the
prevalent joint family system and the social and economic conditions of the country. However, they
are not recognized as dependents under the Fatal Accidents Act, 1855. Thus, there is a need for the
amendment in the act so as to include more dependents as beneficiaries.
The rule in Baker v. Bolton has become outmoded and it is hoped that this outmoded rule will be
discarded and the liability for the consequences of the death will be recognized either by some
legislative actions or judicial pronouncements.

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 INTRODUCTION TO THE LAW OF TORTS
Definition Of The Law Of Torts
The word ―tort‖ originates from the latin word tortus which means ―twisted‖. It later evolved to
mean wrong as it is still been used in the French language: J’ai tort which means ―I am wrong‖. In
English law, the word has a technical meaning that translates to mean a legal wrong for which the
law provides remedy. There have been numerous attempts to define tort by various academics. Some
of such definitions will be considered.
According to Winfield:
―Tortious 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.‖
Prof Sir John W. Salmond in his book Law of Torts defines torts as:
―A civil wrong for which the remedy is a common law action for unliquidated damages, and which
is not the breach of contract or the breach of trust or other merely equitable obligations.‖
kodilinye in his book The Nigerian Law of Torts defined torts as:
A civil wrong involving the breach of duty fixed by law, such duty being owed to persons generally
and its breach being redressible primarily by an action for damages.‖
From the above definitions we can deduce that a tort is a breach of civil duty fixed by law and owed
to all persons generally. It is distinct from other beaches of law like contract, trust, criminal law and
so on. It is usually remedied by an award of unliquidated damages, injunction, or any other
appropriate remedy.
In order to understand the law of torts better, it would be best if a step is taken back in order to assess
the purpose and objective of the law of torts.

The Purpose Of The Law Of Torts

The law of torts serves important purposes in the society. The major purpose of the law of torts is to
prevent an individual from doing wrong to another person. And where that wrong is eventually
committed, the law of torts is there to provide a remedy for the wrongdoing.
The two most popular remedies in the law of torts are damages and injunction. Damages are
monetary compensation charged against the tortfeasor (the person that committed the tort) to
compensate the party that has been affected by the wrong done. An injunction is an order of the court
which instructs the tortfeasor to desist from the tortious act that is affecting the plaintiff.
Although the purpose of the law of torts is to prevent wrongdoing, not all wrongs will be considered
torts by the law of torts. For a wrong to be a tort, it has to be one that has been prescribed by the law
to be a tort.

Objectives Of The Law Of Torts

The following can be regarded as the objectives of the Law of Torts:
 Protection of Interests: The law of torts serves to protect a person‘s interest in his property
and his integrity. For example, the tort of trespass protects a person‘s interest to his land
while the tort of defamation protects a person‘s interest in keeping his integrity.
 Deterrence: The law of torts also makes people act with extra care. This is due to the fact
that they wouldn‘t want to bear the consequences of their action if it violates a person‘s right.
This explains the reason why manufacturers, employers, health providers etc usually take
extra care in dealing with customers,
 Compensation: Compensation is one of the most obvious objective of the law of torts. The
law of torts through the instrumentality of damages and other remedies, helps to compensate
victims for their loss.
 Retribution: An element of retribution can be noticed in the tort system. People who have
been offended are usually anxious to their day in court where they would see the offender
squirming under cross examination.

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  Vindication: The law of Tort provides an avenue for a person who sees himself as innocent
to be proclaimed so by the court. An example is in the case of libel or slander where a party
wants his own side of the story to be affirmed by the courts.
 Loss Distribution: Torts serves as a means to distribute the loss suffered by a complainant.
For example, it takes the loss suffered by the claimant and places it on the defendant. If the
defendant has an insurance company, the insurance company bears the loss. Thus, everyone
who pays a premium at the insurance company ultimately bears the loss.
 Punishment for misconduct: Although this can be said to be in the realm of criminal law, it
could also be applied in the law of torts. The payment of compensation to the claimant serves
as a way of punishing the tortfeasor for the wrong committed.

VICARIOUS LIABILITY
Employers are said to be vicariously liable for torts committed by their employees in the course of
their employment. Vicarious liability means that employers would be held liable to third parties with
whom they have had no contact simply because it was their employees that committed a tort against
the third party.
This rule may be considered to be particularly harsh and it appears to contradict the fault principle. It
is also based on the legal fiction that employers have more control over the actions of their
employees. But of recent the rule has found a more pragmatic justification. This justification stems
from the fact that an employer is thought to be more financially equipped in order to compensate the
injured third party.
Large corporations usually take out an insurance policy against these kinds of liability. In some
instances, they are usually their own insurance. The question of who has an insurance cover may be
used by the courts in determining who the employer is. See: British Telecoms vs. James Johnson
and Sons (1998).
A peculiar advantage of vicarious liability is the fact that even if the employee who committed the
tort cannot be located, the corporation he works for can easily be located. Thus, an action can be
brought against the corporation if the employee is nowhere to be found.
It should however be noted that vicarious liability only limited to employers and employees, it
doesn‘t apply to husbands and wives, parents and children, landlord and tenants etc.
In the case of Hussain vs. Lancaster CC 1998 the court held that vicarious liability would not apply
to a council and a tenant.
In order to establish a case of vicarious liability, two questions must be asked: as the tortfeasor an
employee?
1. as the tortfeasor an employee?
2. Was the employee acting in the course of his employment when the tort was committed?
The following are some of the determinants that are needed in order to establish a case of vicarious
liability:
 Employee/Independent contractor.
 Course of employment.

Employee/Independent Contractors
Employers would be liable for the torts of their employees. They are however not liable for the tort
of independent contractors. Thus, in order to establish vicarious liability, the nature of the
employment has to be determined.
Various means have been developed by the court over the years in order to determine whether a
person is an employee or an independent contractor. It is however necessary for the courts to follow
the practice of listening to all relevant facts.

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An employer‘s liability can extend well beyond his place of business. See: Fraser vs. Winchester[1].
In the case of Carmichael vs. National Power (2001), the court held that casual staff engaged on an
(as required basis) to serve as security guards at a power station were not employees. This was due to
the facts that they were not guaranteed that the work would be available and they were not obliged to
work whenever the work is offered to them. The following are two tests that are used to determine
whether a worker is an employee or an independent contractor:
 The nature of employment test.
 The control test

The Nature of the Employment test

In determining the nature of the employment, one has to consider whether the contract of
employment was a contract of service of a contract for service. If it is a contract of service, then such
person is an employee. If it is a contract for service, then such person is an independent contractor.
In most cases, the employment contract usually states the nature of the employment. However, it is
open to the court to determine the precise nature of the employment.

The Control Test

Another question used in determining whether a person is an independent contractor or an employee
is ―how much control did the employer have over the manner in which the work was done?‖ If the
employer tells the worker exactly how the work is to be carried out, then it is would be an ordinary
employment contract and such person would be regarded as an employee.
It should be noted that this test would not apply in a situation in which an employee is a very skilled
professional who has been employed for his expertise while the employer is just an entrepreneur or a
government official.

Course of Employment
A master would only be liable for torts which the employee commits in the course of employment
although this is usually a question of fact. Judges are usually influenced by considerations of policy
which fall outside the fact. It is there extremely difficult to state the law simply.
There are two lines of cases in this regard, the one in which acts of the employee are held to be
within the scope of employment and the one in which acts of the employee are held to be outside that
scope. Attempting to examine these lines of cases in order to arrive at general principles would be
quite futile.
However, it appears that an employer is liable for wrongful acts which are expressly authorised by
him. Also, he is responsible for acts which are wrongful ways of doing something authorised by him
even if those wrongful acts have been expressly forbidden by the employer.
Authorized Acts
If an employer expressly authorizes an unlawful act, such employer would be held liable. The
problem comes up in determining whether an employer would be held liable when it comes to acts
that are impliedly authorized by him.

Wrongful Modes of doing Authorized Acts

In the following cases, the court held that the employer was vicariously liable for the tort of his
employee:
 Limpus vs. London General Omnibus Company: In this case, bus drivers were in the habit
of racing amongst themselves, a practice which was strictly prohibited by the employer. In
the course of one of such races, the claimant was injured. The court held that the employer
was liable since the racing was merely an unauthorized way of performing the job of driving
their buses.

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  Rose vs. Plenty: In this case, a milkman was prohibited from allowing boys to ride on the
milk float and aid him in the selling of milk. While doing this prohibited act, a 13 year old
boy was injured partly due to the driver‘s negligence. The court held that the employer was
vicariously liable since the act was a prohibited way of doing his job of selling milk.

MALICIOUS PROSECUTION
The purpose of litigation is for the society to have an amicable way of settling disputes and dealing
with criminals. However, if there isn‘t a limit to the extent of litigation to be undertaken by members
of the society, they are bound to abuse this process. It is in order to ensure that the process of
litigation is not abused that the law provides for the tort of malicious prosecution.
The tort of malicious prosecution is an action for damages brought by one against whom a civil suit
or criminal proceedings has been unsuccessfully commenced without probable cause and for aims
other than bringing the alleged offender to justice. It is not only limited to criminal proceedings but
may also be brought in response to baseless and malicious litigation and prosecution, whether
criminal or civil. A criminal defendant in a baseless or malicious case may later file a claim in civil
court against the parties who took an active role in initiating or instigating the original case.
A suit for malicious prosecution can be regarded as a tort action. The claimant seeks compensation
for costs incurred by him in having to defend himself against the baseless and malicious prosecution
instituted or instigated by hew defendant.
The public policy behind the institution of malicious prosecution is one that seeks to discourage the
institution of baseless and vexatious litigation. This public policy has to compete with the one that
encourages law enforcement officers, judicial officers and citizens to aid in the administration of
justice.
It should be noted that an action for malicious prosecution is distinct from an action for false arrest or
false imprisonment. If a person is arrested by a police officer without following the due process, then
an action for false arrest would arise. On the other hand, if a person is unlawfully confined against
his/her will, then an action for false imprisonment could arise. An action for malicious prosecution is
thus appropriate only when the judicial system has been abused.

Elements Of Proof In An Action For Malicious Prosecution

In the case of Alhaji Isa Tarihu Laigoro vs. Alhaji Jibril Garba (Court of Appeal Jos Judicial
Division) the court held that before an action for malicious prosecution can be successful, the
following ingredients have to be proved:
 That the prosecution was maliciously instituted.
 That the defendant acted without reasonable and probable cause.
 The plaintiff must prove that the action was started at the instance of the defendant who set
the law in motions against him, leading to criminal charges.
 That he was prosecuted and the criminal prosecution terminated in his favour.

STRICT LIABILITY: LIABILITY FOR ANIMALS

A lot of people have either heard of or personally experienced situations in which an animal attacks
and injures a human being. These animals are often times the property of other members of the
society. Since the animals are their property, the law of torts holds them strictly liable for injuries
caused by their animals. Liability for animals under the law of torts is classified into two:
 Scienter Action (Liability for Dangerous Animals).
 Cattle Trespass.
Scienter Action (Liability For Dangerous Animals)

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This part of the law of torts concerns liability for animals that are dangerous. Liability in this
situation is usually predicated on whether or not the owner of the animal had prior knowledge of the
animal‘s conduct.
Scienter action classifies dangerous animals under two categories:
 Animals Ferae naturae
 Animals Mansutae Naturae

Animals Ferae Naturae

These are animals which are dangerous by nature. They include lions, tigers, cheetahs, elephants and
other wild animals that can cause harm to others. They are generally dangerous but some of them can
be tamed. If however, one of these tamed wild animals cause injury to another person, the owner
would be strictly liable. This is regardless of the fact that the animals had not attacked anyone in the
past.
The reason for this is that these animals are by instinct, dangerous to human beings. Hence, anyone
who brings them to human dwelling does so at his own risk.
In the case of Behrens vs. Bertram Mills Circus[1], the owner of a tamed elephant was held to be
liable for the acts of the elephant in attacking the plaintiff. This was regardless of the fact that the
elephant had never attacked anyone in the past.

Animals Mansuetae Naturae

These are animals that are normally tame but occasionally attack human beings and cause harm. A
very good example of this is dogs. Dogs are tame, but once in a while, they attack and cause injury to
human beings. In this situation, liability only arises if the owner of the animals had previous
knowledge of the dangerous behaviour of the animal.
Thus, all the plaintiff has to prove to establish liability is the fact that the animal had a vicious
tendency and the owner was aware of this tendency.
In the case of Hudson vs. Robert, the plaintiff was gored by the defendant‘s bull because the bull was
irritated by the red handkerchief which the plaintiff wore on his neck. The defendant was able to
prove that the plaintiff knew of this vicious tendency. Hence the defendant was held to be liable.
The knowledge of the defendant would also be held to exist if the knowledge of the vicious
propensity was acquired by a person to whom the defendant had delegated custody or control of the
animal. Thus, in a situation in which the wife or the servant of the defendant knew of the vicious
tendency, the plaintiff would be held liable.
In the case of Daryani vs. Njoku[2], the plaintiff had been attacked and injured by the defendant‘s
dog. This had occurred on a previous occasion and the matter was reported to the defendant‘s wife. It
was held that since the wife knew of the vicious tendency, she was meant to have told the defendant
about it. Thus, the defendant was held liable for the animal‘s act.
On the other side of the spectrum, in the case of Glansville vs. Sutton[3], the defendant‘s dog
attacked and injured the plaintiff. There was no evidence of previous attack by the animal, hence the
defendant was held not to be liable.
It should be noted that liability would not arise in a situation in which the animal was acting
according to its natural instinct. In the case of Burckle vs. Holmes[4], the defendant‘s cat entered the
plaintiff‘s land and killed fourteen of his birds. It was held that there was no liability on the
defendant‘s part due to the fact that the animal was acting according to its natural instinct.
Defenses to Scienter Action
The common defences to Scienter action are the plaintiff‘s default and violenti non fit injuria.
In the case of Sarch vs. Blackburn[5], it was held that a person who trespasses into another man‘s
land and is attacked by the guard dog would have no claim due to the defence of plaintiff‘s default.
Also, in the case of Sycamore vs. Ley[6], it was held that the act of the plaintiff in teasing the dog
serves as a defence since it was through the plaintiff‘s default that he was injured by the animal.

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The defence of violenti non fit injuria would apply in a situation in which a person, by the nature of
his work or some other purpose, has voluntarily acknowledged to exposing himself to the risk of
being attacked by animals. In the case of Rands vs. McNeill[7], it was held that zoo keepers and
animal trainers had no remedy in scienter action if they were attacked by the animals with which
they were dealing.

Cattle Trespass
This category of animal trespass deals with situations in which cattle in the possession or control of
the defendant move unto the land of the plaintiff and cause damage therein. In the case of Cox vs.
Burbridge[8], it was held that liability would generally arise against the defendant even though he
was not negligent in dealing with the animals.
Cattle under animal mansutae naturae include cows, bulls, horse, mules, goats and pigs. In some
instances, it has been extended to include fowls.
It should be noted that in the case of Tillet vs. Ward[9], it was held that there would be no liability
under cattle trespass if animals being led on the highway stray unto adjacent land. This is due to the
fact that the straying of animals from the highway is considered as a normal hazard associated with
leading cattle on the highway.
Also, in the case of Manton vs. Brocklebank[10], it was held that it is only the person that has interest
in the land that can sue under the cattle trespass.
Defenses to Cattle trespass
The defenses to cattle trespass are the same as the defences for the rule in Rylands vs. Fletcher.
In the case of Singleton vs. Williamson[11], it was held that the defence of plaintiff‘s default would
apply in a situation in which the plaintiff neglected to build a fence round his property, thus allowing
for cattle to stray there and cause damage.
In the case of Smith vs. Stone[12], it was held that the defence of the act of a stranger would apply in
a situation in which a third party drove the cattle onto the plaintiff‘s land.
The defence of act of God would also apply if lightning strikes terror into the cattle that they end up
stampeding into the land belonging to the plaintiff.
Liability For Animals In Nigeria
There aren‘t a lot of Nigerian court cases which border on liability for animals. This is probably due
to a lot of reason. One might be due to the ignorance of the general populace regarding matters like
this. Also, compared to other common law countries, Nigerians do not have a lot of household pets.
One Nigerian case regarding Cattle trespass is the one in the case of Daryani vs. Njoku. The facts of
this case have already been highlighted above under the heading ―Animals mansutae naturae‖.
Another case is the case of Uzoahia vs. Atu[13]. In this case, a cow belonging to the plaintiff was
attacked by tse tse flies and as a result, it wandered into the plaintiff‘s village where it injured a
number of people. As a result, the plaintiff and some other villagers cornered and killed the cow. The
court held that the defence of necessity would avail the defendant since they were protecting
themselves from the animal.
Negligence In Liability For Animals
There can be liability for negligence regarding animals if the plaintiff can‘t find a cause of action in
animal trespass. For example, in the case of Draper vs. Hodder[14], an infant was attacked by a pack
of terrier dogs belonging to the defendant. The plaintiff could not come under scienter action because
they couldn‘t prove that the defendant had previous knowledge. They also couldn‘t bring an action
under cattle trespass because dogs are not considered as cattle.
The plaintiff was however successful in bringing an action under negligence. He contended that the
defendants should have known that terrier dogs moving about in packs would be dangerous and he
should have taken steps to prevent them from doing damage.

Other Torts In Liability For Animals

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As with the case of negligence, there can be liability in other torts for harm caused by animals.
In the case of Manton vs. Brockle Bank[15], it was held that there was trespass to chattel in a
situation in which the defendant trained animals to steal.
Also, in the case of Abiola vs. Ijoma[16], it was held that when a person collects a large number of
animals that pose discomfort to other members of the society, there would be liability under the tort
of nuisance.

Strict Liability: The Rule In Rylands Vs Fletcher

What Is Strict Liability?
Strict liability occurs where the defendant in an action is responsible for damages that result from his
act, whether he was negligent or not. Strict liability is divided into two main parts:
1. The Rule in Rylands vs Fletcher
2. Liability for animals

The Rule In Rylands Vs Fletcher

The rule in Rylands vs Fletcher is one that borders on strict liability. In the case, the defendant got
some contractors to construct a reservoir on his land. Due to the negligence of the contractors, water
leaked from the reservoir to the plaintiff‘s coal mine located below the land, thus causing extensive
damage to it. The conduct of the defendant didn‘t appear to come within the scope of any existing
tort. Thus, leading to the formulation of the rule in Rylands vs. Fletcher[1]. This rule is embodied in
the pronouncement by Blackburn J:
The person who for his own purposes, brings on his land and collects and keeps there anything likely
to do mischief if it escapes must keep it at his own peril and if he does not do so, is prima
facie answerable for all the damage which is the natural consequence of its escape.
When the case got to appeal, Lord Cairns, in the House of Lords, added an extra requirement that the
thing brought must be a non-natural user of the land.
Ingredients of the Rule in Rylands vs Fletcher
From the above stipulations, it can be deduced that there are some ingredients that need to be
established before the rule in Rylands vs Fletcher can be applicable. They are:
1. Bringing on the Land and Accumulation of the thing
2. The thing must be a non-natural user of the land
3. There must be an escape
The rule in Rylands vs Fletcher applies to anything which is likely to do mischief if it escapes. This
extends beyond things which are inherently dangerous like gas, petrol or chemicals. It includes
harmless things like water which could become dangerous if accumulated in quantities large enough
to do mischief.

Bringing and Accumulation of the Thing to the Land

What this means is that in order for the rule in Rylands vs Fletcher to apply, the defendant has to
artificially bring to his land the subject matter likely to do mischief. Hence if the thing which causes
damage is something which is naturally on the land, the defendant would not be liable.
In the case of Wilson vs. Waddell[2] it was held that the defendant was not liable for water that
seeped into the plaintiff‘s mines since the water was naturally located in an underground reservoir. In
the case of Giles vs. Walker[3] it was held that there would be no liability for vegetation that escapes
if it grows naturally on the land in the form of weeds and other uncultivated growth. However, there
would be liability if the trees were artificially planted by the plaintiff.

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Non-natural Use of the Land
The meaning of natural use of the land can be viewed from two perspective. The first definition of
natural use of the land is the use on a land of something which is not in any way artificial. Thus, the
growing of weed on a land is a natural use of the land since there is nothing artificial about it. The
second meaning of natural use of the land is the use of land which is natural and usual although it
may be artificial.
An ideal definition of non-natural use of the land is conveyed in the words of Lord Moulton in the
case of Rickards vs. Lothians[4]. He defined non-natural use of the land as:
… Some special use bringing with it increased danger to others, and must not merely be the ordinary
use of land or such a use as is proper for the general benefit of the community…
Thus, in this case, it was held that water pipe installations in buildings is a natural user of the land,
making the rule in Thus, in this case, it was held that the water pipe installations in buildings is a
natural user of the land, making the rule in Rylands vs Fletcher inapplicable.
There must be an Escape
What this means is that for this rule to apply, the subject matter must have escaped into the land of
the plaintiff. In the case of Read vs. Lyons[5], escape was defined by Lord Simmons as the escape
from a place in which the defendant has control or occupation of the land to a place over which he
has no control or occupation.
In the case of Ponting vs. Noakes[6], a horse reached out and ate a poisonous leaf from a tree in the
defendant‘s land. This resulted in the death of the horse. The court held that there was no escape
since the tree did not extend past the defendant‘s boundary.

Defenses to the rule in Rylands vs Fletcher

The following are some of the defences that can be used to excuse liability under the rule in Rylands
vs Fletcher:
1. Consent of the Plaintiff
2. Default of the plaintiff
3. Act of God
4. Act of a stranger

Consent of the Plaintiff

This is a general defence in the law of torts. It is embodied in the maxim: violenti non fit
injuria. Thus, if the plaintiff consents, directly or indirectly, to the use of the property he cannot
complain about any subsequent damage. If for example, both tenants in a building agree to the use of
a tank placed on the defendant‘s floor, if the water subsequently leaks to the defendant‘s apartment
and causes damage, he cannot complain because he has already consented to it.
However, the plaintiff would have a claim if he can prove that the defendant was negligent. An
example of this is if the defendant left the tap running, hence causing flooding of the plaintiff‘s place
of residence.

Default of the Plaintiff

The rule in Rylands vs Fletcher would not be applicable in a situation in which the damage suffered
was as a result of the plaintiff‘s own default. In the case of Dunn vs. Birmingham Canal Co[7] the
plaintiff knowingly constructed a mine below the defendant‘s canal. It was held that since he knew
of the danger of constructing beneath the canal but he still went ahead, he had courted liability and as
such would not have any remedy.

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Act of God
In a situation where the damage caused was as a result of unexpected natural disaster, it would be
regarded as an act of God, thus freeing the plaintiff from liability. In the case of Nichols vs.
Marshland[8], the defendant had been collecting an artificial pool for years by diverting water from a
stream. Subsequently, a very violent rain fell which destroyed the pools and caused water to destroy
the plaintiff‘s bridges. The courts held that there was no liability since the harm was caused by an
unexpected natural event.
Act of a Stranger
The defendant would not be liable under the rule in Rylands vs Fletcher if the damage that resulted
came about from an unpredictable act of a stranger. For example, in the case of Perry vs. Kendricks
Transport Ltd[9], the defendant was not liable for damage that resulted from the acts of little children
who threw a lighted match into the petrol tank of a vehicle.
Also, in the case of Box vs. Jubb[10], the owners of a reservoir were not liable for damage caused to
the plaintiff‘s land from the overflowing of the reservoir. This was due to the fact that it occurred
because a third party emptied its reservoir into the plaintiff‘s reservoir.

Application of the Rule of Rylands vs Fletcher in Nigeria

The rule of Rylands vs. Fletcher is applicable in Nigeria through numerous court decisions. The most
popular of these is the case of Umudje vs. Shell BP Petroleum Development Co of Nigeria Ltd[11].
In this case, during the cause of oil exploration by the defendant, it blocked a stream from flowing,
thus interfering with the fishing rights of the plaintiff. Also, the waste oil accumulated by the
defendant escaped to the plaintiff‘s land, causing damage.
The court held that the rule in Ryland vs. Fletcher didn‘t apply in the case of blocking the stream
since the water from the stream didn‘t escape to the plaintiff‘s land. On the second issue of oil
spillage, the defendant was held liable since the waste oil, a non-natural user of the land, was
accumulated and it escaped to the plaintiff‘s land, causing damage.

THE TORT OF NUISANCE

According to the Black‟s Law Dictionary 9th Edition, Nuisance can be defined as:
A condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or
enjoyment of property
Nuisance can be classified into private and public nuisance.

PUBLIC NUISANCE
Public nuisance occurs when a person by his action or inaction causes inconvenience to the general
public. This could be in the form of blocking the road, the release of fumes from a factory, the
making of loud noise and so on. Public nuisance is generally a crime that is actionable only by the
Attorney General. IN Nigeria, public nuisance has been made criminal by the provision of S.234 of
the Criminal Code.
However, in the case of Amos vs. Shell BP Nigeria Ltd, it was held by the court that a private
individual would have a right of action when it comes to public nuisance if he can establish before
the court that by the defendant‘s action, he has suffered damage over and above other members of
the society.
In the case of Rose vs. Miles[1], The defendant wrongfully obstructed a public navigable creek which
obstructed the defendant from transporting his good through the creek. This resulted in the plaintiff
having to transport his goods by land, causing him to incur extra costs. It was held that although the
act of the defendant was a public nuisance, since the plaintiff was able to prove that he suffered loss
over and above other members of the public, he had a right of action against the defendant.

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In another case of Campbell vs. Paddington Corporation, the plaintiff usually rented out her room to
those who wanted to watch the procession of King Edward. However, the defendants unlawfully
erected a structure which blocked the view of the procession from the plaintiff‘s house. As a result,
the plaintiff suffered financial loss since she couldn‘t let out her room to those who wanted to watch
the procession.
It was held that in this instance, she had a right of action against the defendants since she suffered
injury over and above other members of the public due to the public nuisance constituted by the
defendants.

It should be noted that for a right of action to arise in public nuisance, it is an individual that has to
prove extra loss suffered by him. Thus, a community cannot bring an action collectively to claim
losses suffered through a defendant‘s action. In the case of Amos vs. Shell BP Nigeria Ltd, the
defendant constructed a temporary dam in a public navigable creek. This resulted in the flooding of
the farmlands of the people of Ogbia community in rivers state. Also the members of the community
could not pass through the creek on their canoes in order to go to and from the market.
Thus, the plaintiff sued on behalf of the community. The court held that in the absence of proof of
extra loss suffered by individual members of the community, the community could not bring a
collective action against a public nuisance.

The reasoning behind this judgment is the consideration of the fact that the community, in suing for a
public nuisance, is attempting to usurp the role of the state in the modern Nigerian dispensation.

PRIVATE NUISANCE
Unlike public nuisance, private nuisance is a tort. It was put in place in order to protect the individual
owner or occupier of land from substantial interference with his enjoyment thereof[2]. As previously
stated, anyone that has a grievance to settle under private nuisance can bring it to the court of law on
a personal basis.
Liability in Private Nuisance
The basic issue that threads throughout the tort of private nuisance is to find a way to balance the
right of the defendant to enjoy the use of his land legally with the right of the plaintiff to use and
enjoy his own land without any interference from the defendant. In order to settle this issue, two
criteria have been setup by the courts. They are:

1. The injury complained of should be:

(a) Sensible (In the case of material damage to land): the damage which the plaintiff complains
about should not be one that is flimsy or minimal. The plaintiff must at least bring evidence of
reduction in the value of his property.
In the case of Ige vs. Taylor Woodrow Nig Ltd, the defendant carried out pipe driving due to the fat
that they wanted to erect a structure in Lagos. Due to this process of pipe driving, a large amount of
vibration was usually caused. This subsequently caused structural damage to the plaintiff‘s house. As
a result, the house had to be pulled down. The court held that in this situation, the material damage
suffered by the plaintiff is one that is quite sensible. Thus, the plaintiff was held to have a right of
action in private nuisance.

(b) Substantial (In the case of interference with enjoyment): When a plaintiff is complaining of
an interference with the enjoyment of his land, this interference with enjoyment is one that has to be
regarded as substantial. The criteria for measuring the how substantial an interference is was laid
down by the courts in the case of Vanderpart vs. Mayfair Hotel Co Ltd where the court observed
that:

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“Everybody is entitled as against his neighbour to the comfortable and healthy enjoyment of the
premises occupied by him, and in deciding whether, in any particular case, his right has been
interfered with and a nuisance thereby caused, it is necessary to determine, whether the act
complained of is an inconvenience materially interfering with the ordinary physical discomfort of
human existence, not merely according to elegant and dainty modes and habits of living, but
according to plain and sober and simple notions obtainable among English people ”
This test is also applicable in the Nigerian Jurisdiction. It was applied in the case of Abiola vs. Ijoma.
In this case, both parties were neighbours but the defendant was rearing poultry. In addition to the
noise coming from the poultry, the smell from the birds affected the health of the plaintiff. The court
held that in this situation, the interference with enjoyment was a substantial one. Thus, giving the
plaintiff a valid right of action under private nuisance.

2. The conduct of the defendant is unreasonable in the prevailing circumstance: In order to

determine this condition, the following has to be taken into consideration:
1. The Locality
2. The utility of the defendant‘s conduct
3. Plaintiff‘s abnormal sensitivity
4. Plaintiff‘s malice
5. Duration of Harm.

TRESPASS TO CHATTEL
What Is Trespass To Chattel
This is a direct and unlawful injury done to the chattel in possession of another person. It is
actionable per se; proof of direct and unlawful application of force is enough, there is no need to
prove damages. However, the direct application of force does not have to be physical. For example,
the driving away of cattle is trespass to chattel. A chattel is every moveable property. This
thus excludes land.
A person who wants to sue in trespass to chattel can sue under trespass to goods, conversion and
negligence that is involved in the commission of the trespass or conversion. These actions are
substantiated by the provisions of the Torts (Interference With Goods) Act 1977. The act creates a
new action called. ―Wrongful interference with goods‖. It defines it in S.1 as:
a) Conversion of goods called trover.
b) Trespass to Goods
c) Negligence in so far as it results in damage to goods.
d) Subject to S.2 of the Act, any other tort as far as it results in damage to goods or to an interest in
goods.
Trespass To Goods
This can be defined as the general unlawful interference with goods in lawful possession of another
person. Possession is very important in bringing an action for trespass to goods. Thus, a person in
possession of goods, though not being the true owner, can bring an action for trespass. In the case
of Armory vs Delamirie, a boy found a jewel and asked a goldsmith to value it. The goldsmith
subsequently refused to return the jewel to the boy. Thus the boy sued.
The court held that although the boy was not the true owner, the fact that he has possession of the
goods gives him the right to sue for trespass. Thus, the goldsmith could not raise the issue of jus
tertii (better title).
Possession normally means physical possession by the possessor. However, in the case of a master-
servant relationship, the master is in possession of goods held on his behalf by his servants. An
executioner or administrator is also held to be in possession of the deceased‘s goods until a probate
or letter of administration is granted.

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Also, a trustee not in physical possession would be held as having possession in a situation in which
he brings an action against a third party in order to protect the goods.
Defenses to Trespass to Goods
1. Protection of persons or property: If trespass to goods is committed while trying to protect life
or property, the defendant would not be held liable. However, the onus is on the defendant to prove
that:
a) The danger was real and imminent.
b) He acted reasonably.
In the case of Cresswell vs Sirl the plaintiff‘s dog was threatening the defendant‘s sheep.
Subsequently, the defendant shot the dog in order to protect his sheep. In an action for trespass, it
was held that the defendant‘s action was justified since what he did was in protection of his property.

2. Exercise of a Legal Right: It would not be counted as trespass to goods if an action is done in
levying lawful distress for rent. This occurs in a situation in which the goods in question are causing
damage to the property of the defendant. In this situation, he has a right to seize them till the plaintiff
compensates him for his loss. Also, trespass to goods can be excused if it occurs in the carrying out
of a legal process.
Conversion
This consists of the willful and wrongful interference with the goods of a person entitled to
possession in such a way as to deny him such right or in such a manner inconsistent with his right.
The right to immediate possession is the determining factor. That is, if the right exists, actual
possession is unnecessary.
In the case of North Central Wagon and Finance Co Ltd vs Graham, the defendant bought a car
from the plaintiff on a hire purchase agreement. However, the defendant defaulted in payment.
According to the terms of the contract, upon default, the plaintiff would be entitled to reclaim the
goods. The defendant, without informing the plaintiff, auctioned the car. Thus the plaintiffs sued the
auctioneer for conversion. The court held that the plaintiffs could sue in conversion regardless of the
fact that the plaintiff didn‘t have actual possession of the car at the time. Since the right in the goods
were already vested in the plaintiff, there was no need for actual possession.
Instances of Conversion

Conversion of goods would arise in the following situation:

1. Wrongfully Taking the Goods: This must be accompanied by an intention to exercise temporary
or permanent dominion over the goods. In the case of Fouldes vs Willoughby the owner of two
horses brought them aboard a ferry. In an ensuing argument, the ferryman told the horse owner to
remove the horses but he refused. He then personally removed the horses and led them ashore. The
horse owner sued for conversion. Judgement was entered in his favour at the trial court. On appeal,
the court, in allowing the appeal held that the act of leading the horses away from his ferry by the
ferryman could not be held to have amounted to conversion. This was due to the fact that the
ferryman did not intend to assert a dominion of ownership over the horses.

2. Wrongfully detaining the goods: This must be accompanied by an intention to keep the goods
from the person entitled to possession of the goods. Hence it would not be regarded as conversion if
the finder of goods merely refrains from returning such to the owner. It would only be conversion in
a situation in which when asked for the goods by the owner, he refuses to release it.
In the case of Howard E Perry and Co Ltd vs British Railway Board. (1980) 1 WLR 1375, the
defendant, who were carriers, held the plaintiff‘s steel in depots. Subsequently, there was a strike by
steelworkers and due to this, the defendants refused to release the plaintiff‘s steel to them. It was
held that this amounted to conversion on the defendant‘s part.

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For conversion to be committed there has to be some positive denial of possession towards the
person entitled to possession.

3. By wrongfully destroying the goods: Destruction of goods would amount to conversion in the
following situations:
a) One person willfully destroys the chattel of another.
b) If the chattel either ceases to exist or changes its identity.

4. Wrongfully disposing the goods: This occurs in a situation in which the defendant attempts to
confer title to a third party in a manner inconsistent with the right of the person entitled to
possession.

5. By wrongfully delivering the goods: This occurs in a situation in which the defendant denies the
true owner of the title to the goods by delivering them to another party that has no title.

Defenses to Conversion
1. Abandonment: An action for conversion would not succeed in a situation in which the
property in question was abandoned by the claimant. The abandonment should be
demonstrated as the intent of the former owner. Also, there should be a reasonable time
between the abandonment and the possession by the new owner.
2. Authority of Law: Conversion that is done under the authority of law would be justified. For
example, the selling of the goods of a defendant by the claimant by an order of court in order
to get a judgement debt, would be valid.
3. Consent: If the owner of the goods consented to the action of the defendant in converting the
goods, the conversion would be held to be valid.
4. Statute of limitations: If the suit for conversion is not filed after a specified period (ranging
from 2-5) years, it would be held to be statute barred. Thus, the suit would not be heard by
the court.
5. Unidentifiable property: If the property cannot be properly identified, it could also serve as
a defense to conversion.

TRESPASS TO LAND
What Is Trespass To Land?
Trespass to land, called trespass ―quare clausum fregit‖ means the interference with the possession
of land without lawful justification. The phrase ―quare clausum fregit” literally means ―breaking the
close‖ of the plaintiff‘s land. It was held in the case of Onasanya vs Emmanuel that trespass to land
is committed where the defendant, without lawful justification:
1. Enters upon the land in the plaintiff‘s possession.
2. Remains upon such land.
3. Directly places or projects a material object upon such land.

Acts Of Trespass To Land

1. Trespass by wrongful entry: According to Salmond
―… This consists of a personal entry of the defendant or by some other persons through his
procurement into the land or building occupied by the plaintiff…‖
In the case of Entick vs Carrington, it was held that the slightest crossing of the boundary of the
plaintiff‘s land would also amount to trespass. The court was of the view that ―every invasion of
property, be it so minute, is a trespass.‖

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In the case of intentional trespass, the defendant would be liable if he entered the land or passed
through it on the mistaken assumption that the land belonged to him. If the entry is not intentional,
the plaintiff cannot recover compensation in trespass but in negligence.

2. Trespass by remaining on the land: A person would be liable in trespass if he enters a land
lawfully and he remains there after his right of entry has expired.
In the case of Balogun vs Alakija, the plaintiff was employed by the defendant to collect rents on the
defendant‘s behalf. One evening, after business hours, the defendant went to the plaintiff‘s house to
demand an account of the rent collected. An argument ensued and in the end, the defendant was
asked to leave the premises of the plaintiff. The defendant refused to leave till about after fifteen
minutes of being told to leave.
The court held that in this case, the right of the defendant to stay on the land had expired after being
told to leave. By refusing to leave, his action constituted trespass and he is therefore liable.
Trespass is a wrong against possession rather than ownership. Thus, a person who has possession of
a land can sue in trespass even against the owner of the land if the land was leased to him. Also,
during that period, the owner cannot sue in trespass concerning that land.
In the case of Oguche vs Iliasu, it was held that possession in this instance means actual possession.

Trespass ab-initio
When a person lawfully enters a land but he subsequently abuses the privilege of that law by
committing some wrongful acts, he would be held liable for trespass ab-initio on that property. The
rule is that the authority, having been abused by doing a wrongful act under its cover, is cancelled
retrospectively such that it‘s exercise becomes actionable in trespass.
In other words, even though the defendant enters the land lawfully, the law presumes him to be a
trespasser from the very beginning since he went there with a wrong intention in mind.
An example is NEPA officials, police, bailiffs etc. This set of people have the right to enter upon any
premises in pursuance of their duty. However, if they do something outside of their powers, it would
be regarded as trespass.

3. Trespass Above and Below the Surface of The Land.

The law on this point is governed by these maxims: ―Quid quid plantatur solo solo cedit‖ or ―cujus
est solum ejus est usque ad coelum et usque ad inferos―.
It means that whoever owns or possesses the land would be held to own or possess everything up to
the heavens above the land and everything below the land to the center of the earth. However, this
maxim cannot be taken literally both for the airspace and beneath the earth.
In the case of Bernstein vs Skyviews Ltd, it was held that the maxim does not apply in a situation in
which the defendant‘s aircraft flew several hundred feet above the plaintiff‘s roof. The court posited
that the maxim only extends to the point of reasonable use of airspace above the land.
In Wollerton Ltd vs Constain Ltd, where a crane of the defendant‘s swung over the plaintiff‘s roof at
a distance of 50 ft, it was held to be trespass.
In Kelson vs Imperial Tobacco Ltd where a signboard on the adjacent premises potruded a few feet
above the plaintiff‘s premises, it was also held to be trespass.
As regards entry below the surface of the land, Fleming is of the view that the rule applicable to the
invasion of airspace should also be applicable. This means that trespass would apply only within the
area which could be reasonable used by the occupier.

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Defenses To Trespass To Land
1. License: This could also be construed as a consent given to another to enter upon a land. License
to enter into a land could be:
 Express: This occurs when the owner of the land directly gives permission to the trespasser
to remain upon the land in question.
 Implied: This is a situation in which the owner oof the land acquiesces to the presence of the
trespasser on the land in issue. He might not directly invite the trespasser to the land, but by
his action, he would give consent.
 Contractual: This occurs in a situation in which entry into the land is as a result of
contractual obligations. for example, if the owner of the land contracts with a plumber to
have repairs carried out on the land, the plumber has the contractual right to enter upon the
land. If he enters the land in the course of carrying out his obligations, he cannot be held to be
trespassing on the land.
2. Right of entry: A person would have a right to entry upon a land if he has right of way. A right of
way is the right a person has to go through another person‘s land in order to get to his destination. It
could be given by either the owner, a public right of way under common law or a right of way under
statutes.

Remedies To Trespass To Land

1. Damages: This is monetary compensation charged against the trespasser, to be paid to the
owner of the land. It could be nominal or general.
2. Injunction: This is when the owner of the land seeks an order from the court to order the
trespasser to leave the land being trespassed.
3. An action for recovery of Land: This normally occurs in land dispute situations. In this
scenario, the owner of the land would bring an action against the trespasser and will have to
prove that the land is for him.

THE DEFENCES TO FALSE IMPRISONMENT

Why Are There Defenses To False Imprisonment?
The tort of false imprisonment is one that is heavily frowned upon by the law. However the common
maxim, ―to every general rule there is an exception‖, is also effective in the case of false
imprisonment. It is due to this fact that the law provides for some instances in which an act of
imprisonment would not be regarded as false and tortious liability. The following are some of such
instances:
1. Lawful Arrest and Detention:
Any arrest made in accordance with the provisions of the law cannot amount to false imprisonment.
A police officer is still protected even if the arrest was made in error, provided it was reasonable.
In the case of Kariuki vs East African Industries Ltd & anor Civil case no 1414 (1990) the plaintiff,
an employee of the defendant company was arrested and charged on the ground of theft. His arrest
was occasioned by investigations conducted by two fellow employees. He was remanded for three
months following an order of the court. After the trial, he was acquitted of the charge.
The plaintiff subsequently instituted an action in court for wrongful arrest, malicious prosecution and
false imprisonment. The court held that a person who brings legal proceedings against another is not
liable for false imprisonment where the imprisonment was through the order of a court. However, the
plaintiff was awarded general damages of 1000 shillings.
It should be noted that the arrest of a person should however be reasonable and justified. If not,
liability could arise for false imprisonment.
In the case of Gitau vs AG Kenya (1990) KLR 13, the plaintiff instituted an action against the AG, as
the legal representative of the Police Department, for assault, battery, malicious prosecution and false

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imprisonment. He had been arrested and charged for the offence of being drunk and disorderly for
which he was admitted to bail.
The plaintiff complained that while he was in detention, he was denied the chance of speaking to his
wife, held incommunicado for 30 hours, no change of cloths, a mug of tea and a piece of loaf was his
only meal for the day and a mat was his bedding.
The court held that the plaintiff‘s arrest was wrong since he was collecting cigarettes from his car
and not drunk. For wrongful arrest, subjection to humiliation and fright ordeal, he was awarded a
sum of 250,000 Ksh, damages for false imprisonment. He was also awarded 10,000 ksh for
exemplary damages.
2. Detention For Mental Purposes:
The detention of persons suffering from mental disorders is legalized by the Mental Heath Laws of
various countries. However, such detention must be in accordance with the law or it would amount to
false imprisonment.

THE TORT OF FALSE IMPRISONMENT

What Is False Imprisonment
False imprisonment occurs when a person is unlawfully restrained by arrest, confinement or
prevention of movement from a particular place. It is an act of the defendant which intentionally or
negligently confines the movement of the claimant to an area defined by the defendant. It should be
noted that false imprisonment is actionable per se and must occur as a result of the direct act of the
defendant.

Ingredients of the Tort of False Imprisonment

1. Knowledge of the Claimant:
False imprisonment can occur whether or not the claimant was aware of it at the time it occurred.
According to Lord Atkin, ―a person can be imprisoned while he is asleep, in the case of
drunkenness, while unconscious or while he is a lunatic‖.
Thus, in the case of Meering vs Grahame White Aviation Company Ltd 1919 122, the claimant was
brought to his employer‘s office to answer some questions in relation to a theft. Two guards were
stationed outside to prevent him from leaving the room. When the claimant found out, he sued for
false imprisonment. Lord Atkin held:
―It appears to me that a person could be imprisoned without his knowledge. It is quite unnecessary to
go on to show that in fact the man knew that he was imprisoned.‖
Thus, the defendants were held liable for false imprisonment.
It should however be noted that if a person is not aware that he has been falsely imprisoned and he
has suffered no harm, he can only be able to recover nominal damages.

2. The Character of the Act:

There must be total or complete restraint such that there is no means of escape. If there is a
reasonable means of escape, it cannot amount to false imprisonment; Meering vs Grahame White
Aviation Company Ltd.
To qualify for false imprisonment, the area of confinement should be one that has been fixed by the
defendant and there is no reasonable way of escape. In the case of Bird vs Jones the plaintiff was
prevented from crossing a particular bridge. He was however allowed to go through another route.
He thus sued for false imprisonment.
In dismissing the claim for false imprisonment, Lord Coleridge Stated:
―…I am of opinion that there was no imprisonment. To call it so appears to me to confound partial
obstruction and disturbance with total obstruction and detention. A prison may have its boundary
large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be

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moveable or fixed. But a boundary it must have; and that boundary the party imprisoned must be
prevented from passing; he must be prevented from leaving that place, within the ambit of which the
party imprisoning would confine him, except by prison-breach.
Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of
freedom: it is one part of the definition of freedom to be able to go whithersoever one pleases; but
imprisonment is something more than the mere loss of this power; it includes the notion of restraint
within some limits defined by a will or power exterior to our own…‖
Lord Denman however dissented. He stated:
―…As long as I am prevented from doing what I have a right to do, of what importance is it that I am
permitted to do something else? How does the imposition of an unlawful condition show that I am
not restrained? If I am locked in a room, am I not imprisoned because I might effect my escape
through a window, or because I might find an exit dangerous or inconvenient to myself as by wading
through water or by taking a route so circuitous that my necessary affairs would suffer by delay? It
appears to me that this is a total deprivation of liberty…‖
Thus, it should be noted that if the means of escape is one that is risky or is likely to cause personal
injury or unreasonable, there would be liability for false imprisonment.
The boundaries to the place of imprisonment do not necessarily need to be physical. For example, in
a case in which a commissioner in lunacy wrongfully used his authority to prevent the claimant from
leaving his office, there was liability for false imprisonment. Thus, once a restraint has been effected
by the assertion of authority, liability arises for false imprisonment.
It should be noted that in the instance of lawful detention, a change in the quality of condition would
not amount to false imprisonment. Thus, if prisoners are housed in unsanitary cells, it would not
amount to false imprisonment.
Thus, in the case of Hague vs Deputy Governor of Pakhurst Prison 1991 3 All Er 733, the
defendant ordered that the claimant be transferred to a solitary and unsanitary cell away from the
other prisoners. The plaintiff subsequently sued for false imprisonment. The court held that the fact
that the claimant was already lawfully in detention meant that the prison authority had the right to
move him to any prison they want. Thus the action for false imprisonment failed.

3. The State of Mind of the Defendant:

This means that to prove false imprisonment, the defendant must intend to do the act which resulted
in false imprisonment. However, if a person is imprisoned even with a good intention, there would
still be liability for false imprisonment.
In the case of R vs Governor of Brockhill Prison Exparte Evans No 2 2001 2 AC 19, the time of
imprisonment of a convict was wrongfully calculated. Thus, the convict spent extra time in prison, it
was held that this resulted in false imprisonment.

DEFENCES TO ASSAULT AND BATTERY

Why The Torts Of Assault And Battery Have Similar Defenses
The torts of assault and battery are very similar in a lot of respects. They are both direct physical
trespass to the person of another. For instance when a battery is committed against the complainant,
it also includes the tort of assault. This is due to the fact that before the actual infliction of unlawful
force, the claimant was put in apprehension(assault). This would not occur only in instances in which
battery occurs without the initial knowledge of the victim. Due to this, a defence to assault could also
serve as a defence to battery. it is due to this that they are considered together in order to discuss
their defenses.

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Defenses to Assault And Battery

1. Lawful Authority:
A person who is purported to commit battery or assault under lawful authority cannot be held liable.
Police officers are authorised by the statute to use force if it is necessary in carrying out their duty.
However, their actions should be within the confines prescribed by the law. See: Collins vs Wilcock
3 All ER. In this case, a policewoman gripped the claimant‘s arm when questioning her. It was held
that doing so amounted to battery since it was beyond reasonable force to be used in such situations
and thus, beyond the scope of her powers.
The Mental health act of many countries empowers people treating those with mental disorder to
use necessary means to treat those who have been compulsorily detained for mental issues.
Treatment in these situations are usually without the consent of the patient.

2. Consent:
If a claimant has consented to the assault or battery inflicted on him, his action for battery or assault
cannot succeed. This is encapsulated in the maxim ―violenti non fit injuria―. Thus, a person who
participates in a contact sport cannot complain of assault or battery if he suffers injury which is
permissible within the rules of the game. See: Simms vs Leigh Rugby Football Club (1969) 2 All
ER 923. In this case, the claimant, a visiting rugby player, was tackled and as a result hit the wall,
breaking his leg. It was held that as a rugby player he had already consented to rough tackles and
thus, the defendants were not liable.
It should be noted that in medical treatment, the consent must be real. This means that the patient
must understand what it is he is consenting to.

3. Necessity:
Where it is necessary to prevent harm, trespass to persons can be allowed. It can also be used in
medical cases to justify the treatment of a person who lacks capacity. See the case of F vs West
Berkshire Health Authority 2 AC 1(1990). In this case, the F was a 36 year old woman who due to
her mental condition, had the capacity of small child, She formed a sexual relationship with a male
patient which if leading to pregnancy, would be disastrous to her mental health. She was thus
sterilized, with the consent of her mother. It was held that in this case, the sterilization was lawful
since it was a necessity.

4. Parental Authority:
A parent would not be held liable for battery or assault for inflicting punishment on their child.
Provided that the force used is a reasonable one and it is proportionate to the wrong committed by
the child. The Child must also understand the reason for his punishment.

5. Self Defence:
In order to defend himself, a person is entitled to use reasonable force on his assailant. However, the
force used must be proportionate to the threat posed. In Cockcroft vs Smith (1705) 11 MOD 43,
there was an argument between a lawyer and a clerk in court. The clerk pointed his fingers towards
the lawyer‘s eyes and the lawyer bit off the finger. It was held that the action was not proportionate
to the threat posed and he was held liable.

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THE TORT OF BATTERY
Definition Of The Tort Of Battery
According to Salmond & Heuston p.125, battery is defined as
―the application of force to the person of another without lawful justification‖.
Goff LJ in Collins vs Wilcock states that:
Battery is the actual infliction of unlawful force on another person.
He said that touching would amount to battery if it doesn‘t fall within the realm of normal touching
experienced in conduct of everyday life.

Ingredients Of The Tort Of Battery

1. Intention: For one to be liable for battery, the touching has to be intentional irrespective of the
fact that it was not meant to cause injury. If the touching was not intentional it would be categorized
as negligence.
In the case of Marube vs Nyamuro CA No.8 1983, the appellant, an infant, sued through his father
for battery suffered when the respondent was flogging him with a rope which hit his right eye
causing him to lose that eye. According to testimony of the appellant and other pupils, the injury
suffered was a result of the deliberate act of the respondent.
The defense of the respondent was that it was a mistake and he didn‘t intend to hit the appellant on
the eye. The court held that flogging the claimant was intentional irrespective of whether or not
harm was intended. And since harm resulted from this, he would be liable. Thus, damages of 30,000
sh were awarded.
It should be noted that if the tortfeasor intends to hit someone but he misses and it touches someone
else, the principle of transferred malice would be considered in order to place liability on him.
In the case of Livingstone vs Ministry of Defence 1984 356 NICA, a soldier in Northern Ireland
fired a baton round at a rioter. The round missed the rioter and hit the claimant. The principle of
transferred malice was applied and the soldier was held liable.

2. It Must Be Direct: To be liable for battery, the injury must be as a direct result of the intentional
act of the tortfeasor.
In Scott vs Shepherd 1773 WM 1892, Shepherd threw a lighted squib into the market and it landed
on the stall of a ginger bread seller. Willis picked it up and threw it away, it landed on Ryal‘s stall,
who picked it up and threw it away. It struck the claimant in the face and blinded him in one eye.
The court held that the injury was a result of the action of defendant and he was held liable for
battery.
In Gibbons vs Pepper (1695) ILD RAYM 38, the defendant whipped a horse so that it bolted and ran
down the claimant. It was held that the injury suffered by the plaintiff was a direct result of the
defendant‘s action. He was thus held liable for battery.
It should be noted that the force applied does not have to be personal contact. For instance in Pursell
vs Horn (1838) 8 A&E 602, the claimant went to the saloon to get a permanent wave. However, at
the salon, D threw water on the plaintiff. The defendant was held liable.

THE TORT OF ASSAULT

Definitions Of The Tort Of Assault
There have been various definition proferred for the tort of assault. According to Winfield and
Jolowicz p.71, assault is defined as
―an act of the defendant which causes the claimant reasonable apprehension of the infliction of
battery on him.‖
Gold LJ in Collins vs Wilcock 1984 All ER 374 defines assault as

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―an act which causes another person to apprehend infliction of immediate and unlawful force on his
person.‖
For instance, Mr A points a loaded gun at B. In such a case, by pointing a gun at Mr B, Mr A has put
him in immediate fear of battery.

Ingredients Of The Tort Of Assault

1. It must be direct and intentional: What this means is that in order to establish the tort of assault,
it has to be proved that the action of the tortfeasor was directed towards the claimant and it was
intentionally done. A case for assault cannot arise if a gun is pointed at another party instead of of
the claimant.
2. Conduct: The conduct amounts to action coupled with threatening words that creates the
atmosphere of assault. In the past, mere threatening words were not regarded as assault as it was
followed with no action/conduct. Today, due to the advent of advanced technology like telephones,
emails and social network, the issuing of threats via these means have come to be considered as
assault.
There could be instances where the threatening words coupled with the action could have the
opposite effect of implying that there would be no assault.
In the case of Turberville vs Savage (1669) 1 MOD REP at 3, Turberville put his hand on his sword
and said ―if it were not assize time, I would not take such language from you‖. Savage later sued for
assault. The court held that to prove a case for assault, at least one of the following ingredients must
be present:
 An act intending to cause harm to another person.
 The other person put in apprehension if he believes the person can do damage.
An assault exists even if the other person can defend himself in such situation. Mere threats of future
harm is thus not sufficient for assault.
Thus, the court held that by Turberville‘s action and words, he meant that he would not assault
Savage at that point.

3. Reasonable Fear: For there to be an assault, the fear of the victim must be a reasonable one. To
measure this, a subjective test is done to examine the victim‘s state of mind at that time. In the case
of R vs St George 1840 9 C&P 483, the judge said:
It is an assault to point a weapon at a person, though not loaded but so near that if loaded, it might do
injury. However, if the victim knew that the gun was unloaded, any fear would be regarded as
unreasonable. The threat must be capable of being carried out at the point it is made.
In cases of telephone threats, the house of Lords has held in the case of R vs Ireland that it would
amount to an assault if the fear of the claimant was that the assailant would turn up in a minute or
two.
If the defendant was prevented from carrying out the threat, it would still be regarded as assault if he
was advancing with that intent. This was the decision of the court in the case of Stevens vs
Myers (1830) 4 C&P 349. In this case, the defendant was advancing with a clenched fist towards the
claimant but was prevented from hitting the claimant due to the intervention of third parties. it was
held that there was assault.
A different decision was reached by the court in another case of Thomas vs National Union of Mine
Workers(South Wales Area) 1985 2 All E.R 1. In this case, the claimant who went to work despite a
miners strike had threats shouted at him by other miners. However, the other miners were restrained
by the police and the claimant was in a bus. The court held that considering the situation, there was
no reasonable fear of the defendants carrying out their action at that point.

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 TRESPASS TO PERSONS
Trespass to persons can be broadly classified into three:
1. Assault
2. Battery
3. False Imprisonment
Trespass is an ancient set of wrongs that deals with direct and intentional invasion of a person‘s
interest in his land, goods or persons. It was one of the two original forms of action. The second form
of action was ―trespass on the case‖, also referred to as ―action on the case‖. Trespass on the case
usually dealt with indirect injury suffered by the claimant.
The distinction between the forms of action can still be seen today. For example, torts which are
actionable per se like trespass to land and to persons originate from the old form of action ―trespass‖.
On the other hand, torts which required proof of damage like negligence and nuisance are
categorized under ―trespass on the case‖.
It should be noted that the law of trespass shares a lot of similarities with criminal law. This is due to
the fact that trespass usually serves as more of a deterrent than providing compensation. For
example, a person could be liable in trespass without any proof of damage. Thus, the claimant isn‘t
compensated for any loss because it isn‘t proved.
Rather, trespass makes citizens more careful when dealing with the rights of others. This explains
why the law of trespass is a major source for most civil liberties today.

THE RULE OF REASONABLE FORSEEABILITY

An Overview Of The Rule Of Reasonable Foreseeability
The rule of reasonable foreseeability means that a defendant would only be liable for damages which
are a direct and foreseeable result from his actions. It must be possible to be able to draw a causal
link between the action of the defendant and the loss suffered by the plaintiff. Thus, if damage
cannot be proved to have been as a forseeable direct consequence of the defendant‘s act, he would
not be liable.
In the case of Liesbosch Dredger vs Edison Steamship; The Edison (1933) All ER 144, the plaintiff,
contractors who were doing a dredging work, lost their ship due to the fact that the defendant‘s ship
collided with theirs and caused it to sink. Due to this, they lost their ship and could also not complete
their contract work. This resulted into financial embarrassment for the plaintiff company. The
company thus sued requesting damages from the loss of the ship and also for the resultant financial
embarrassment.
The House of Lords held that the defendants were liable for the ship, however, they were held to be
free of liability regarding the financial embarrassment suffered. Lord Wright stated:
―…The law cannot take account of everything that follows a wrongful act; it regards some
subsequent matters as outside the scope of its selection because it were infinite to trace the cause of
causes or consequences of consequences.
Thus, the loss of a ship by collision due to the other vessel‘s sole fault may force the ship owner into
bankruptcy and that again may involve his family in suffering, loss of education or opportunities in
life, but no such loss could be recovered from the wrongdoer.
In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on
grounds of pure logic but simply for practical reasons. In the present case, if the appellant‘s financial
embarrassment is to be regarded as a consequence of the respondent‘s tort, I think it is too remote…‖
See also Obasuyi vs Business Ventures Ltd (1995) 7 NWLR pt 406 184.

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Tests for Determining the Extent of a Defendant‟s Liability
The rule of reasonable foreseeability has not always been applied in the law courts. There was a
previous test: the test of directness of damage which resulted in a lot of hardship. This rule was later
replaced by the rule of reasonable foreseeability. The evolution of the rule of reasonable
foreseeability would be subsequently highlighted by first elaborating on the first rule and then
discussing the emergence of the rule of reasonable foreseeability.

The Initial Rule of Directness of Damage

The courts initially used the test of directness of damage in order to consider the extent of the
defendant‘s liability. This rule meant that the defendant was liable for all the consequences of his
action regardless of the fact that the damage which occurred was not reasonably foreseeable. This
rule was espoused by the courts in the case of Re Polemis and Furness Withy & Co (1921) All ER
40 which is popularly known as Re Polemis.
In this case, charterers employed stevedores to unload a ship. Unknown to the stevedores, there was
a leakage of petrol in the hold of the ship and thus there was inflammable vapour. One of the
stevedores inadvertently kicked a plank into the hold and it caused a spark which ended up burning
the ship. The owners of the ship sued the charterers and the stevedores for the damage caused to the
ship.
The court held that the defendants were liable irrespective of the fact that it wasn‘t reasonably
foreseeable to the stevedore that kicking a plank in the hold of a ship would lead to the ship‘s
destruction.
This rule caused a lot of hardship as it meant that the extent of a defendant‘s liability was unlimited.
This rule was however replaced by the rule of reasonable foreseeability.

The Rule of Reasonable Foreseeability

This rule came to replace the old rule of directness of damage. According to this rule, a defendant
would only be liable for damages that are reasonably foreseeable consequences of his actions. This
rule was laid down by the courts in the case of Overseas Tankship (UK) Ltd vs Mordock &
Engineering Co Ltd (1961) All ER 404 PC, also popularly known as Wagon Mound’s Case.
In this case, the defendants (appellants) discharged fuel into the Sydney Harbour. This fuel floated
into the plaintiff‘s (respondent‘s) wharf where they were repairing a ship. There was a piece of
cotton floating in the water and it was ignited by welding being done by the respondents. This caused
the fuel in the water to catch fire and it destroyed the respondent‘s wharf and the ship under repairs.
Thus, they sued for damages.
The Privy Council held that the appellants would not be liable because it was not reasonably
foreseeable that oil being spilt into the ocean could cause a fire which would subsequently destroy a
ship. However, the appellants were held to be liable for fouling up the respondent‘s slipways since
this was a reasonably foreseeable consequence of pouring oil into the ocean.
However, the test of reasonable foreseeability would be reasonable foreseeability by a reasonable
man. In the case of Adigun vs AG Oyo State (1987) 1 NWLR pt 53, p.678 @ 720, the court held per
Eso JSC that the reasonable man test to be used would be a reasonable man in the position and state
of life of the tortfeasor.
The above rule in Wagon Mound’s case was affirmed by a decision of the House of Lords in the
case of Hughes vs Lord Advocate (1963) AC 837.
In this case, there was a construction work being done by post office workers on the road. The
construction work was covered with tents and there were also paraffin lamps around the tents. While
the workers went for a break, two children came around and were playing around the site. During the
course of this, one of the children fell with the paraffin lamp and it caused an explosion which
injured the child.

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In an action against the post office workers, the court held that although it was not reasonably
foreseeable for an explosion to occur, it was foreseeable that the presence of paraffin lamps would
cause injury. Thus, they were held liable for the burns suffered by the child.
The court further added that a person would still be held liable for a reasonably foreseeable
consequence of his action even if the means by which the consequence occurred(in this case, the
explosion) was not reasonably foreseeable.
Thus, in the case of Doughty vs Turner Manufacturing Co Ltd (1964) 1 QB 518, the plaintiff, who
was an employee of the defendant company was wearing an asbestos suit. A fellow employee
allowed the plaintiff slip into a cauldron of molten metal. This caused an explosion and injured the
plaintiff. However, at that time, it wasn‘t known that asbestos coming into contact with molten metal
would result in an explosion.
The court held that in this instance, the result (explosion) was not reasonably foreseeable. Hence the
defendant was held to be free of liability.

DAMAGE AND LIABILITY IN TORT

Rules for Determining Damage And Liability
For a defendant to be held liable for a tort, the plaintiff must have suffered injury that results from
the acts of the defendant. The rule of reasonable foreseeability would be applied in order to
determine the extent of compensation to which a claimant is entitled.
However, it is not in all situations in which the defendant would be liable due to injury suffered by
the plaintiff. Thus, there are three rules that are used to determine damage and liability in the law of
torts:

Damage without Legal Wrong (Damnum Sine Injuria):

This occurs in a situation in which there is damage done to the plaintiff but he has no legal remedy
because the damage that happened to him happened lawfully. It is encapsulated in the
maxim damnum sine injuria which means damage without injury. Examples of when this rule would
be applied include:

1. Trade Competition: A claimant would have no right of legal action if he suffers loss as a
result of competition in the cause of trade. For example, if there are two sellers in a location
and one reduces the price of his commodity in order to attract customers. This act would
harm the trade of the other seller and he could lose his means of livelihood. However, he
would not have a right of legal action against the other seller even though he suffered loss.
For example, in the case of Mogul Steamship Co vs McGregor Gow and Co (1892) AC 25, the
plaintiff and the defendants were competitors in the same trade. The defendants formed an
association to the exclusion of the plaintiff. The association persuaded tea merchants in China to
cease dealing with the plaintiff. Thus, the plaintiff brought the action alleging that the defendants had
a civil conspiracy to injure his trade.
The House of Lords held that although the action by the defendants would result in loss to the
plaintiff, the actions were not done by an unlawful means and thus, no action could lie against the
defendants.

2. Defamation on a Privileged Occasion: This is a situation in which regardless of the fact that the
defendant defamed the claimant, the defendant won‘t be liable due to the circumstances in which the
statement was made. For example, statements made in judicial proceedings and on the legislative
floor are privileged. This means that they are immune from lawsuits for defamation.

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3. Lawful Use of Property or Lawful Conduct: A person would not be liable in torts if by lawful
use of his property, injury is caused to others. It would only lead to liability if the use of the property
leads to nuisance or other breaches of the law. In the case of Bradford Corporation vs Pickles (1895)
AC 587 HL, the parties were adjoining landowners. The plaintiff company was statutorily
empowered to collect water from certain springs. In order to do this, part of the channels flowed
through the defendant‘s land.
The defendant, in order to induce the plaintiff corporation into buying his land at a higher price,
obstructed the flow of water on his land. The corporation thus brought an action against him. The
court held that the defendant had every right to collect water on his own land notwithstanding the
fact that the act was done with malice.

4. Perjury: Perjury occurs when a person gives a false statement under oath usually in a court of
law. It is an offence punishable under the criminal law. However, a person cannot bring an action
under perjury but he can appeal on other points of law in the proceedings in which the perjury was
committed.
In the case of Hargreaves vs Bretherton (1958) 1 QB 45, the plaintiff brought an action against the
defendant on the ground that the plaintiff was imprisoned due to perjury committed by the defendant.
The court held that the action would fail because it was based on perjury and there was nothing like
the tort of perjury. See also: Roy vs Prior (1971) AC 470, Evans vs London Hospital Medical
College (1981) 1 WLR 184.
The rationale behind this immunity from liability in a civil action for perjury is based on the idea that
witnesses should always feel free to come and give evidence before the court. However, by the
provision of the English Criminal Justice Act 1988, prisoners whose convictions are quashed due
to perjury are entitled to compensation from the government.

Legal Wrong without Damage (Injuria sine damnum)

This occurs in a situation in which a person would be held liable for an act even though the
defendant did not suffer any injury. It is encapsulated in the maxim injuria sine damnum which
means injury without damage. In this kind of situation, the claimant is entitled, if he doesn‘t prove
actual damages suffered, to nominal damages.
In the case of Newstead vs London Express Newspaper (1940) 1 KB 377, the defendant Newspaper
made a publication that a Harold Newstead, a 30 year old man from Camberwell, was imprisoned for
bigamy. Although the newspaper wasn‘t talking about him, the description they used fit the plaintiff.
He thus sued for defamation and the court ruled in his favour. See also: Basely vs Clarkson (1681)
83 ER 565.
The torts in which this rule applies are torts which are actionable per se. This means that in order to
establish liability the claimant only needs to prove that the act was committed. However, if he suffers
other damages, he can go on to prove these damages. This would entitle him to more than nominal
damages. Examples of torts that are actionable per se include:

1. Defamation: The tort of defamation comprises libel and slander. Libel is when a false statement
about a person is published in a permanent format. Slander, on the other hand is when a false
statement injurious to the claimant is spoken by the defendant. Libel is actionable per se on the mere
proof of it‘s occurrence.
Slander, on the other hand is only actionable per se when:
 It implies that a person has committed a crime.
 It alleges that a person has an infectious disease.
 It accuses a woman or girl of unchastity.
 It implies that a person is incompetent in her profession, business or office.

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2. Trespass to Land: The mere trespass of a person‘s land would be actionable in court. It is of no
significance that the claimant didn‘t suffer any damage to himself. Once there is proof of trespass,
the defendant is liable.
The rule of legal wrong without damage buttresses the general rule that where there is a wrong, there
is always a remedy. This is encapsulated in the latin maxim ―ubi jus, ubi remedium.‖
In the case of Ashby vs White (1703) 1 ER 417, the defendant prevented the claimant from casting
his vote at an election. Thus, the claimant sued and the court ruled in his favour. This was regardless
of the fact that the candidate that the claimant wanted to vote in finally won the elections. See
also: Bello vs AG Oyo (1986) 5 NWLR pt 4 p828 SC.
It should however be noted that in situations in which no damage was done to the claimant, the court
would only grant nominal damages to the claimant.
Damage With Injury
This is a situation in which there is actual damage suffered by the plaintiff and he also has a legal
remedy in place for him. It covers all normal scenarios of tortious liability.

PRINCIPLES OF LIABILITY IN TORT

Generally, each tort has its own principles in relation to liability. However, there are general rules to
liability in the law of torts. They are:
1. The Principle of Fault or Negligence: Generally, liability in torts is based on the fact that
the tortfeasor due to some action or inaction of his was negligent in performing his duty or
was at fault in carrying out his actions. Liability in the torts or negligence, occupier‘s
liability, professional negligence and so on are based on the principle of fault or negligence.

2. The Principle of Damage: By applying this principle of liability, the defendant is only liable
where the claimant/plaintiff has suffered any harm or injury as a result of the defendant‘s
actions. However, this doesn‘t apply in cases of torts which are actionable per se (no need to
prove damage) like trespass.

3. De Minimis Non Curat Lex: This latin maxim encapsulates the principle; ―the law does not
concern itself with trivialities‖. Thus, if a case is brought before the court on a trivial or
insignificant matter, the court would waste no time in throwing it into the trash can.
However, if the case is not struck out and the plaintiff goes on to prove his case, the court may go on
ahead to offer nominal damages. See: Regent vs Francesca (1981) 3 All ER 327, Smith vs Scott
(1973) Ch.314, Delaroy hall vs Tadman (1969) 2 QB 208.

4. Intentional Damage is Never Too Remote: This principle means that if an act is done
intentionally and knowingly and it results into damage being done to another party, the
tortfeasor would be liable. This is regardless of the fact that the act was done in mischief, was
innocent or a joke. Thus, as long as damage is foreseeable, parties would be held liable for
their actions.
In the case of Scott vs Shepherd (1773) 96 ER 925, the defendant threw a lighted squib (firework)
into the market and it landed on a stall. In order to save their wares, different shop owners threw it
away. In this process, the squib hit the plaintiff in the face and blinded him in one eye. The court
held that Shepherd was liable for his actions as injury was foreseeable from his actions.
Also, in the case of Wilkinson vs Downton (1897) 2 QB 57, The defendant jokingly told the plaintiff
that her husband was engaged in a terrible accident. The plaintiff as a result of this suffered nervous
shock and was hospitalised. In court it was held that the defendant was liable even though he meant
no harm.
See also: Janvier vs Sweeney (1919) All ER 1056 CA.

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 5. Egg Shell/ Thin skull or Unusual Plaintiff Rule: in this principle of liability, a defendant is
expected to take a victim as he finds him. He would not be vindicated by the fact that his
actions, if done to a normal person, would not result in injury. For instance, if a defendant
gives the claimant some light blows and it results into serious injury, the defendant would be
liable. He cannot give the excuse that giving light blows to a normal person would not result
in any injuries.
However, it should be noted that the egg-shell rule would not apply in a situation in which the
condition which accelerates the injury occurs after the tortious act. Thus, in the case of Morgan vs
Wallis (1974) 1 LL Rep. 165, the plaintiff suffered injury to his back while trying to avoid a rope
thrown by a stevedore onto the barge while working at a port.
The defendant, who was the plaintiff‘s employer, accepted liability but contested the extent of
damages due to the fact that the plaintiff refused to undergo test and medical operation. The refusal
to undergo tests was held to be unreasonable by the court due to the fact that the operation, if carried
out, would have been successful. The court thus ruled in favour of the defendants.

6. Strict Liability: Where this rule of liability is applied, it means that the defendant is liable
for his tort whether or not injury was caused to the defendant or the action was intentional.
This is due to the fact that the commission of the tort in itself has already been prohibited by
the law. This is also another situation in the the rule of reasonable forseeability would not be
applied.
Situations in which strict liability would apply include:
 Product Liability or Consumer Protection: This is a situation in which the producer or
manufacturer of a product would be held liable if his finished products are discovered to have
defects which can be injurious to customers. In the case of Pearks, Gunsten & Tee Ltd vs
Ward (1902) 2 KB 1, the appellant company was held liable for the acts of its employees who
sold its fresh butter mixed with water.
In this case, Channel J had this to say on the nature of strict liability in relation to consumer
protection:
―… The legislature has thought it so important to prevent the particular act from being committed
that it absolutely forbids it to be done; and if it is done, the offender is liable to a penalty, whether he
has any men rea(guilty mind) or not and whether or not he intended to commit a breach of the
law…‖
 Liability for Animals: This means that anyone who keeps a dangerous animal and it ends up
causing injury or death to another person, he would be held liable for the act of such animal.
This is regardless of the fact that he didn‘t intend for the animal to cause such injury or was
careful in keeping the animal. A dangerous animal is one that is not usually domesticated and
is liable to do mischief, cause serious damage or even death if not restrained.
In the case of In the case of Curtis vs Betts 1 All ER 769, the defendant was taking his dog, a bull
mastiff, from the house to the car. In the process, a ten year old boy came near the dog. The dog
attacked and injured the child. The court held that the owner of the dog was liable. See
also, Cummings vs Granger (1975) 1 WLR 1330,
 The rule in Rylands vs Fletcher(1868) LR 3 HL 330: In this case, the defendant was
collecting water in a reservoir close to the plaintiff‘s coal mine. The water subsequently
leaked into the plaintiff‘s land and caused damage. The court held that if a person brings into
his land something that is capable of doing mischief if it escapes, and that thing does escape,
the person who brought it would be liable for any damage caused.
This is regardless of the fact that the initial person was not negligent. It should however be noted that
this rule would apply if the thing brought into the land against the natural use of such land.

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FORMS OF ACTION IN THE LAW OF TORTS
Forms of action in the law of Torts go back a long way to the early days of the common law. There is
no other branch of English law (apart from land law) that is as old as the law of torts. The law of
torts were developed in the thirteenth century in the king‘s court.
During this period, any action brought before the King had to fit into a particular writ. These writs
are what were regarded as the forms of action. If an action didn‘t fit into a form of action, there
would be no remedy for that complainant.
Thus, anyone who wanted redress didn‘t think in the line of ―what wrong has been done to me?‖,
instead they thought in the line of ―under what form of action would this fit into‖? The common
forms of action in the law of torts then were ―the writ of trespass‖ and ‖ the writ of trespass on the
case/ action on the case‖.
1. The Writ of Trespass: This form of action was applicable in cases that dealt with forcible,
direct and immediate injury to land, persons and chattels. For example if the defendant
punches the plaintiff in the face, it is a direct injury and would lie under the writ of trespass.
2. The Writ of Trespass on the Case: This form of action dealt with injuries that are indirect.
For example, if a person negligently leaves a log on the road and it subsequently injures the
plaintiff, the form of action would be the writ of ―trespass on the case‖.
Before 1852, any claim which did not fit any form of action was bound to fail. Due to the hardship
occasioned by the use of forms of action, they were abolished by the Common Law Procedure Act
1852.
However the distinction between direct and indirect injury still exists. Thus, the modern tort of
trespass is concerned with direct injury while the tort of nuisance( derived from action on the case) is
concerned with indirect injury.
In the case of Onasanya vs Emmanuel (1974) 9 CCHCJ, it was held that throwing refuse unto the
plaintiff‘s land was a direct injury and thus was under trespass while allowing excreta to seep into
the plaintiff‘s well from the defendant‘s salga amounted to an indirect injury under nuisance.
Nowadays, a claimant does not need to use a form of action. However, he still needs to prove that his
action lies under a recognised tort like nuisance, negligence, trespass etc. This has prompted the
famous remark of Maitland:
―The forms of actions we have buried, but they still rule us from their graves.‖

COMPARISON BETWEEN TORTS AND OTHER ASPECTS OF LAW

Introduction
There is a very thin line between torts and other aspects of law. For better understanding of the law
of torts, it would be best if a comparison is made between it and the other aspects of law.
Torts And Crime
The foremost purpose of criminal law is to punish wrongdoers for their harmful action towards the
society. This punishment can either be in the form of imprisonment, death sentence or fine. Torts on
the other hand is not concerned with punishing the wrongdoer. Its aim is to compensate the affected
party for the wrong done against him by the tortfeasor.
Another point of divergence between Torts and Criminal law is that Criminal law is modified into
statutes like the Criminal Code Act and the Penal Code Act. The law of torts on the other hand is
made up of judicial decisions which are occasionally modified by statutes.
There are some torts that constitute a tort and a crime. For example assault (S.252 CC), false
imprisonment (S.365 CC) and defamation (S.373-381 CC) are torts as well as crimes. In situations
like this, a person can be on trial for both the criminal aspect and the civil aspect at the same time.
Thus, the remedies are concurrent; while the tortfeasor might be imprisoned, he could at the same
time pay damages for the tort committed.

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Finally, another difference between a tort and a crime is the standard of proof. For a crime, the
prosecution must prove its case beyond reasonable doubt. Whereas, in torts, the standard of proof to
be used is the balance of probability.
However, where a tort is also a crime, the criminal standard of proof is also what is required in the
civil case. See: Okuarume vs Obaboko (1966) NMLR 47.

The Rule in Smith vs Selwyn

The common law rule in the case of Smith vs Selwyn (1914) 3 KB 98 provides that where a civil
wrong is also a crime, a civil action cannot be brought before the court until the criminal action is
concluded or a cogent reason for default of criminal action is provided. This means that any civil suit
brought to court without following the above rule was bound to fail in court.
An exception was however provided in the Nigerian case of Nwankwa vs Ajaegbu (1978) 2 LRN
230. In this case, the plaintiff reported an assault but it wasn‘t prosecuted by the police. He then went
on to bring civil proceedings against the defendant. The defendant contended that since no criminal
action has been concluded in respect of the case, no civil action could be sustained.
The court rejected this argument and stated that inasmuch as the case has been reported to the police,
whether they prosecute it or not, a civil action can be brought before the court.
Abolition of the Rule in Smith vs Selwyn in Nigeria
The rule in Smith vs Selwyn has long been abolished in England by the provision of Criminal
Justice Act 1967. The act put to rest the distinction between a felony and misdemeanour. The rule is
also not applicable in Nigeria as it violates the Constitution, Criminal Code Act and the
Interpretation Act.

The rule breaches the provisions of SS.6(6)(b), 17(2)(e), 46(1) and 315(3) of the 1999 Constitution.
For example, S.6(6)(b) provides that the judicial powers of the courts extend to matters between all
persons, the government and any authority in order to determine issues in relation to their civil rights.
This gives the courts wide jurisdiction to entertain matters brought before it. The other provisions are
provisions to make access to the courts easier.
Also, in the case of Veritas Insurance Co. Ltd vs Citi Trust Investment Ltd (1993) 3 NWLR pt 281,
the court ruled that the rule in Smith vs Selwyn could not apply because it was in contradiction to S.5
of the Criminal Code and S.8 of the Interpretation Act.
By the provision of S.5 of the Criminal Code, the Act would not affect the right of action which a
person would have against another person if the Criminal Code had not been passed.
By the provision of S.8 (2) of the Interpretation Act, an enactment cannot prevent the recovery of
damages in respect of injury suffered by an act just because it has already provided a punishment for
that act.

Torts And Contract

A fundamental difference between the law of torts and the law of contract is that in the law of torts,
the breach is of duty imposed by the law while in the law of contract, the breach is of agreement
reached upon by both parties. However, in the law of contract, there are some underlying principles
that parties are bound to keep due to the provision of the law.
There are also some situations in which a tort can be varied due to agreement between the parties.
For example, the duty owed by an occupier of a premises to his visitors. Also, torts can be excluded
altogether by consent. An example is in the case of the latin maxim: Violenti non fit injuria.
In the case of Kelly vs Metropolitan Railway Co (1895) 1 Q.B 944, the plaintiff sued the company
for injury sustained due to the negligence of members of its staff during the journey. The court held
that in this scenario, it was a tort even though there was contract between both parties.

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Also, in the case of Jackson vs Mayfair Window Cleaning Co Ltd (1952) 1 All ER 215, the plaintiff
contracted with the defendant to clean his house. In the course of cleaning, a chandelier fell down
and was destroyed. The plaintiff sued for damages based on negligence. The action was based on tort
and not a breach of contract.
However, if the damage was one that invalidates the whole contract, it would not be a tort but a
breach of contract. This was affirmed by the Supreme Court in the case of Quo Vadis Hotel Ltd vs
Nigeria Marine Services Ltd (1992) 6 NWLR pt 250.
In some situations, a wrongful act can also constitute a tort and a breach of contract. For example if
A contracted with B to transport his goods but die to B‘s negligence the books are either lost or
destroyed. In this case, there is the tort of negligence and the breach of the contract for transporting
the goods. See also: Nigerian Bottling Co.Ltd vs Ngonadi (1985) 1 NWLR pt 4, Amid vs Essien
(1994) 7 NWLR pt 354.
Thus, there are many areas in which torts and contract overlap. A person who suffers
misrepresentation can sue for the tort of deceit. The concepts of remoteness of damage and agency
are also present in torts and contract. Also, the aim in most proceedings for contract and torts is to
remedy the affected party through the award of damages.
Torts And Trust
The law of trust deals with the ownership of property by one person or entity for the benefit of
another person or entity. The main distinction between the law of Torts and Trust is in their origin.
The law of torts has its origin entrenched in the common law. The law of trust on the other hand
originated from equity in the court of chancery.
Consequently, the law of trust, tort, crime and contract are not exclusive of each other. An act may
may constitute a breach of all of them. For example, the stealing of trust funds by a trustee would
make him liable under the law of trust. He could be held liable for conversion under the law of torts,
he could be prosecuted for breach of trust under criminal law, and if the trust was a written
agreement, he could be liable for a breach of the contract of trust.
In this kind of situation in which an act raises liability in different areas, the best thing to do is for the
plaintiff to sue under the aspect of law that offers the most remedy. See: Chessworth vs Farar (1967)
1 QB 407 @ 110 or (1966) 2 All ER 107.

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