2. Plaintiff - the Wrongdoer Plaintiff — the wrongdoer as a defence is applicable when the plaintiff himself does something wrong and causes damage to himself. This defence is complemented by one of the most common law principles, which is ‘one must approach the court with clean hands.’ This bars the plaintiff from claiming damages from someone else because of harm caused to him due to his own mistake. For example, Mr A trespasses into Mr B's house and gets bitten by Mr B’s dog. Now, Mr A claims damages from Mr B, to which B takes this defence and refuses to make such a claim because here Mr A, being the plaintiff, has also committed an offence of trespassing and hence cannot claim any damages. 3. Inevitable Accident Inevitable accidents are those that cannot be escaped even after taking full reasonable care. Inevitable accidents are unforeseeable, which means accidents and injuries caused to the party could not be predicted. The defendant avails this defence to escape liability when he has taken reasonable care on his part but still could not stop the accident from happening. For example, Mr A got his car serviced before going on a trip with his friends. Still, he met with an accident due to the failure of the brakes. Here, even after taking proper precautions, Mr A and his friends could not escape from the accident. Hence, it amounts to an inevitable accident. 4. Act of God The Act of God is an uncontrollable and unpredictable natural force. It covers all the natural calamities that are beyond the control of the human hand. ‘Vis Major’ is a Latin version of ‘superior force’ or ‘the Act of God.’ For example, due to the cyclone in the village, the roofs of many houses flew away. People claimed damages from the builder, to which the builder refused by taking the defence of the Act of God. 5. Private DefenceThis defence can be used to get away with the liability of causing injury to the other party in order to protect oneself. For private defence to be applicable, it must be ensured that the party was under attack or threat from the other party. The degree of defence should be proportionate to the degree of attack (it should not be higher than the degree of the attack or threat). And it should be ensured that the defence taken was for one’s protection and not for any revenge purpose. For example, Mr A, a thief, entered Mr B’s house and threatened him to give all the valuable things, and if Mr B did not comply, Mr A would kill Mr B. To prevent himself, Mr B banged Mr A’s head with an object available nearby. In this case, Mr B can take the defence of private defence, as it was to protect himself, and the degree used was also proportionate without any malice intention 6. Mistake Mistakes are of two types: Mistake of Fact and Mistake of Law. A mistake of fact is when a person commits an offence because of a misunderstanding of some facts but did not intend to do so. But the mistake of law (ignorance of the law} is no excuse and not acceptable, as stated in the Latin maxim ‘Ignorantia juris non excusat.’ Hence, it is not considered a defence in the Law of Torts. Otherwise, people would start taking this defence as an excuse to commit offences irrationally. Ammistake of fact is considered a defence and eliminates the burden of the defendant by being an exception. For example, Mr A stepped out during the COVID-19 nationwide lockdown imposed by the central government under the Epidemic Disease Act of 1897. When caught, Mr A said he did not know about this law. In this case, Mr A cannot take the defence of mistake, as ignorance of the law is no excuse. 7.Necessity Necessity as a defence is taken when one party injures the other party to protect him from some major damage. To avoid greater harm, small harm done to a party can be avoided. But it should be proven that the step taken was necessary. 3For example, Mr A’s house is on fire. To get into Mr A’s house and to rescue him, Mr B trespasses Mr C’s house. So, here the minor harm, i.e., trespass, can be ignored to protect Mr A from greater harm. Statutory Authority Ifa party does any damage under any authority driven by a statute passed by the government, then it is considered a valid defence. But the body, having the authority, must ensure that such defences are availed in a bona fide manner and no irrational decision is taken. Any scope of carelessness is not entertained. For example, the roads of the XYZ colony were under construction upon the orders of the municipal corporation. Due to this, colony members were fat some problems. Under no circumstances the colony members can claim damages, as the municipal corporation can take the defence of statutory authority. UNIT-II1 17.What nuisance ? Explain the different kinds of nuisance? Introducti What is Nuisance? The word 'Nuisance' is derived from the French word 'nuire' and the Latin word ‘nocere' which means to do hurt or to annoy. .Blackstone describes Nuisance as something that "worketh hurt, inconvenience or damage. Nuisance is an activity or state of affairs that interferes with the use of enjoyment of land or rights over land or with the health, safety, or comfort of the public at large. In simple words, Nuisance is an in injury to the right of a person in possession of property to undisturbed enjoyment of it and results from an improper use of by another person of his own property Kinds of Nuisanc There are two Kinds of Nuisance |) Public Nuisance, and Il) Private Nuisance 1) Public NuisancePublic Nuisance is a crime. According to Section 268 of the Indian Penal Code, Public Nuisance is a Criminal offence. It says that A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. Public Nuisance can only be the subject of one action, otherwise, a party might be ruined by a million suits. Public nuisance does not create a civil cause of action for any person. In order that an individual may have a private right of action in respect of a public nuisance, the following must be proved - (1) He must show a particular injury to himself beyond that which is suffered by the rest of public. (2) Such injury must be direct and not mere consequential injury. (3) The injury must be of suspension character. Relevant Case law Soltau v De Held, (1851) Sim Ns 133 In this case, the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the priest and the Chapel Bell was Rang at all hours of the day and night. It was held that the ringing was a public nuisance and the plaintiff was held entitled to an injunction. ll) Private Nuisance: Private Nuisance is the using or authorising the use of one's property, or of anything under one's control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort or convenience. Private nuisance in contrast to the public nuisance is an act affecting some particular individual or individuals as distinguished from the public at large. It cannot be made the subject of an indictment, but maybe the ground of civilaction for damages or an Injunction or both. Essentials of Private Nuisance Essentials of Private Nuisance are (1) an unlawful act, and (2) damage actual or presumed. Damage actual or presumed is an essential element for an action on nuisance. inds of Private Nuisanc There are three kinds of Nuisance (1) Nuisance by encroachment on a neighbour's land (2) Nuisance by direct physical Injury to a neighbour's land. (3) Nuisance by interference with a neighbour's quiet enjoyment of his life. ighway If nuisance is created on a highway by a private individual, liability would arise if any person is injured as a result of what he has been done irrespective of negligence. if anything is placed on a highway which is likely to cause an accident being an obstruction to those who are using the highway on their lawful occasion such as vehicle unlighted and unguarded standing there at night and an accident results, there is an actionable nuisance. Relevant Case law Ware Vs. Garstone Haulage Co. Ltd. (1944) KB 30 In this Case, A trailer attached to a lorry was kept unattended on the highway. At night time no near light was shown. A motorcyclist ran into the trailer. It was held that it was an obstruction on the highway and as such as a public nuisance. 18.What is negligence ? Discuss the important features of negligence with suitable cases. Negligence as a TortThe term ‘negligence’ is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. Generally speaking, negligence is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of the negligence that is determinative of liability. Torts are legal wrongs that one party suffers at the hands of another. Negligence is a form of tort which evolved because some types of loss or damage occur between parties that have no contract between them, and therefore there is nothing for one party to sue the other over. Essentials of Negligence Tort 1, Duty to Take Care There is an important condition under the liability for negligence that the defendant owes a legal duty towards the plaintiff. The following case laws will help us to understand the important element. In Grant v. Australian Knitting Mills Ltd., 1935 AC 85; Froma retailer, the plaintiff purchases two sets of woolen underwear. After wearing it, he suffers from a skin disease. This problem occurs due to the excess amount of sulphates present in the wool and not removing it at the time of washing it due to the negligence at the time of washing it. In this case, the manufacturers are completely liable as they are not able to perform their duty correctly. 2. Duty to whom Donoghue v. Stevenson, 1932 AC 562, adds further to this idea and expands the scope of duty by stating that the duty so raises extends to our neighbour. While explaining who my neighbour LORD ATKIN is states that the answer must be “the persons who are so closely and directly affected by my act that | ought reasonably to have them in contemplation as being so affected when | am directing my mind to the acts or omissions which are called in question” 3. Duty must be towards the plaintiff It is not ample that the defendant owes a duty to take care of. A duty should be there, according to which, the defendant should owe a duty of care towards the plaintiff. Sb4, Breach of Duty to take care One very important condition for the liability in negligence is that the plaintiff must prove that due to the negligence the defendant is not able to perform his duties In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750; a number of persons died due the collapsing of a clock-tower in the heart of the Chandni Chowk, Delhi The normal life of such structures are normally 40 45 years but the tower was around 80 years old. The Municipal Corporation of Delhi is held liable as it is under their hands and they are not able to take care and perform their duties efficiently. 19.Write a note on remoteness of damage. Introduction The term ‘remoteness of damages’ refers to the legal test used for deciding which type of loss caused by the breach of contract may be compensated by an award of damages. It has been distinguished from the term measure of damages or quantification which refers to the method of assessing in money the compensation for a particular consequence or loss which has been held to be not too remote. In Arun Mills Ltd v Dhanrajmal Gobindram, it was stated with regard to remoteness of loss, until recently it could fairly be said that, subject to the decision in The Parana, the law on the remoteness of damage in a contract has been codified by the decision in Hadley v Baxendale. The rules on the remoteness of damage in the contract are found in the Court of Exchequer's judgment in Hadley v Baxendale, as interpreted in later cases. In Hadley v Baxendale, the plaintiff's mill had come to a standstill due to their crankshaft breakage. The defendant carrier failed to deliver the broken crankshaft to the manufacturer within the specified time. There has been a delay in restarting the mill. The plaintiff sued to recover the profits they would have made if the mill was started without delay. The court rejected the claim on the ground that the mill’s profits must be stopped by an unreasonable delay in the carrier's delivery of the broken shaft to the third person.Remoteness of Damage in Tort and Contract This general principle imposes, on the plaintiff, a higher degree of contemplation with regard to the likelihood of the particular loss than the corresponding general principle in tort. Reasonable foreseeability is a test of remoteness in the law of torts in case of contract a much higher degree of foreseeability is required, i.e, a serious possibility or a real damages that the loss will occur. The result is to limit damages more in contract than in tort. In H Parsons Ltd v Uttley Ingham and Co. Ltd, the defendant failed to see that the livestock feed supplied to the plaintiff should properly be ventilated as a result of which several pigs of the plaintiffs died, The above test of damages in the contract was held satisfied as the defendant could have contemplated a serious possibility of the pigs getting ill 20. What is strict liability? Discuss the Exceptions to strict liability with appropriate cases. Introduction: Some activities may be so dangerous that the law has to regulate them with extreme consequences. For example, the law may sometimes levy a penalty even if damage occurs without somebody's fault. This is exactly what happens under the rule of strict liability. This rule is very important for commercial and other activities that have the potential to result in horrific damages. The strict liability principle is an extremely important concept under the law of torts. The basis of this principle basically lies in the inherent harm that some activities can inflict. For example, leaking of poisonous gasses, as it happened in the Bhopal Gas Tragedy, will attract this rule. The underlying principle of compensation in torts generally depends on the extent of precautions a person takes. Hence, if he takes abundant precautions to prevent some harm, the law may exempt him from paying damages. This principle, however, does not apply to strict liability. Under the strict liability rule, the law makes people pay compensation for damages even if they are not at fault. In other words, people have to pay compensation to victims even if they took all the necessary precautions. In fact, permissions allowing such activities often include this principle as a precondition. Rylands v. FletcherThe rule of strict liability originates from the famous English case of Rylands v. Fletcher. According to the facts of this case, the defendant owned a mill and wanted to improve its water supply. For this purpose, he employed a firm of reputed engineers to construct a reservoir nearby. The problem occurred when the reservoir was so full one day that the water from it started overflowing. The water flowed with so much force that it entered the plaintiff's mine and damaged everything. The engineers, who were independent contractors of the defendant, were clearly at fault. This is because they were negligent in constructing the reservoir. This is exactly what the defendant also said for avoiding his liability. The court, however, disagreed and explained the strict liability rule. It said that when somebody keeps something on his property for his benefit, it should not escape and affect others. In case it so escapes, the owner of that thing must compensate the victim even if he was not negligent. Exceptions to Strict Liability The strict liability rule does not apply in cases involving the following exceptions: 1) Act of God An act of God is a sudden, direct and irresistible act of nature that nobody can reasonably prepare for. It can cause damage regardless of how many precautions one may take. For example, tsunamis, tornadoes, earthquakes, extraordinary rainfall, etc. are acts of God. Any damage that occurs due to these acts does not attract strict liability. 2) Wrongful act of a third party Sometimes, the involvement of third parties may be the cause of damages. For example, renovation work in one flat may cause some nuisance to another flat. Here, the tenant affected by the nuisance cannot sue his landlord. He can only sue the person renovating the other flat. It1p In several instances, the plaintiff may himself be at fault for the damage he suffers. In such cases, he cannot shift liability on some other person regardless of how much he suffers. Rule of Absolute Liability The Supreme Court applied a stricter version of the rule of strict liability in the case of MC Mehta v. Union of India (1987). In this case, harmful Oleum gas had escaped from a factory owned by Shriram Foods & Fertilizer Industries. The gas had caused a lot of damage to people and industries nearby. The Supreme Court held that, despite being so stringent, the strict liability rule was inadequate in modern times. This is because scientific advancements have made modern industries even more dangerous and hazardous. Hence, the court laid down the absolute liability rule in this case. According to the absolute liability rule, no exceptions of strict liability shall apply in certain cases. Therefore, the people who cause damage will have unlimited liability to compensate victims adequately. Courts in India have applied this rule in many cases to create deterrence. a spectator”. Expl: In law not the remote but the near proximate cause is considered. Meaning thereby that in law the farthest cause shall take a back step over the near or proximate cause. The stated Maxim viz. In jure non remota causa, sed proxima spectator does not apply to cases of fraud or criminal act as the philosophy of law is to consider the basic rationale and lead to a conclusion. To delineate on the origin of the said Maxim it took its genesis from latin maxim that formulated the law of Torts and hence the branch of law of Torts came to be known as Causation. Applicability of the Latin Maxim The instant Maxim as stated aforesaid is usually applicable to cases of Marine Insurance, wherein the impediment or loss caused by the tremendous hazards of the sea falls within the ambit of the said law, even though it has not taken place in real parlance or in toto. The same rationale was basically laid in a leading English case of Dudgeon v. Pembroke. Another Application of the said Maxim is for Breach of damages and its ascertainment. Now this Breach ofDamages that acts as a benchmark or paremeter for ascertaining Damages is further classified into 2 subheads viz.the one that arose naturally resulting in breach of damages and another being in anticipation of the damage between both the contracting parties. Having said that one needs to ponder on the Test of Reasonable Foreseability as mentioned and clearly stipulated under Section 73, 74 of the Indian Contract Act. While Section 75 states Damages in case of Anticipatory Breach along with section 39 of the Indian Contract Act. Now one needs to understand that since Section 73, 74 talks about determination of damages in case of breach of contract, Unliquidated Damages means infinite damages is entailed in Section 73.Prima facie what forms the essential ingredients of section 73 is definite breach of the contract by any party to the contract. Secondly, it must be caused to other party. Thirdly Doctrine of Mitigation must apply in mitigating damages. Fourthly Damages must be in direct consequence of the Breach. Fifthly it must not be remote. Lastly Parties to the Contract must be aware of consequence of the breach. Section 74 states about Liquidated Damages or Fixed Damages. Also one must be amply clear that Damages explicitly means legal injury or breach while Damages foretail relief available in the form of Compensation. The famous Case on the aforesaid Doctrine is Hadley v..Baxendale. In another Leading Case of Wing v.Morse, the Court clearly laid that since it, had dearth of cases and many of them keep pending because of paucity of numerous reasons, it would be feasible to look at the Ratio of Case, than to encounter into the whole judgement altogether. Thus, in this precise note we tried to comprehend the meaning, origin and Applicability of the said Maxim through a number of instances that pertain or encompass in law itself. 22. Discuss the principle of contributory negligence Contributory negligence is a type of tort where the person, who must care omit his duty and harm another person. It is one of the self-defence that is taken by the accused. It is an act of ignorance and carelessness by the person who has the duty to care which a reasonable man would do. Negligence in a layman's language is the omission of the duty to take care of, which results in injury to the appellant. Both the property and the person can be harmed due to negligence. Suit for the negligence arises whenever there is a breach of duty which the man of reasonable calibre would not do and it resulted in injury.To arise any suit for negligence it is necessary that- + There should be ignorance and carelessness. + Breach of duty which a reasonable and prudent man would not do. + Breach of duty which is recognised by the law. Ilustrations- 1. If A is driving a car in the night without headlights and accidentally injure B who is coming from the wrong side. Then itis the case of contributory negligence as B should not walk on the wrong side of the road and A should have turned on the headlights of the car as a reasonable man would do 2. Ifa doctor accidentally during an operation left one of its tools in the patient’s stomach then it is a case of negligence from the side of the doctor. As it is the utmost duty of the doctor and he was completely negligent on his part. Concept of duty to care The phrase duty to care itself means it is an obligation on the person to take care and to do things more carefully so that there will be zero chances of any risk or injury from their side. If there is any kind of omission to fulfil the duty then it gives rise to the liability. In the case of Donoghue V. Stevenson- The girl was having a ginger beer when she discovered there is a decomposed snail in the bottle and due to the consumption of ginger beer she suffered from gastroenteritis. She sued the manufacturer of the bottle. It was held that the manufacturer is liable and he has the duty to care before selling the bottles to others and he should take all the necessary steps to avoid any kind of injury to the neighbours. Degree of Care- The degree of care is directly responsible for the gravity of the injury caused, The more the gravity of the injury the more care is required. If any act or omission can cause injury to the great extent then more care is required. Example- A was a gatekeeper of the railway he opened the gate without even seeing whether the train is coming or not. X who was driving the car was hit by the train when he was crossing the railway. It was held A has to check and after that only he has to open the gates. The concept of Contributory negligence is based on the principles of “Volenti non-fit injuria”. The maxim means that the injury has suffered voluntarily and the defendant is not fully liable. So, if the 42plaintiff is not taking due care and due diligence where he has to take care of and he got injured then the liability is both on the plaintiff and the defendant, But if both the plaintiff and the defendant take due care and all the measures to avoid the accident or the injury then the plaintiff cannot sue the defendant for that. The burden of Proof- The burden of proof is on the defendant to prove that the plaintiff is equally liable for the act. And the plaintiff was not careful and due to which he suffered injuries. In the case of Great central rly. V. Bates- The plaintiff sustained injuries as he fell down from the shaft of the lift because he went backwards opened the doors and stepped through it assuming that the lift would still be in place. It was held that this is the case of contributory negligence the plaintiff won't get any compensation. In the case of Hansraj v. Tram CO.- X boarded in a moving tramcar and suffered injuries. So, X sued the company. It was held that X should have waited for the tramcar to stop and then he should have boarded so the company was not held liable. The defence of contributory negligence is not available when- it is proved that the defendant has the duty to take full care and he is legally bound to take full care and diligence. So, if any injury is caused to the plaintiff then the defendant will be held liable For example- A and B was travelling ina bus and A, in order to show something to B, pointed his hand outside the window and the window suddenly got open and A was injured. Although there was A’s duty to not take out his hands of the window but the staff and the crew were liable as it was their duty to check all the windows and the doors. Rule of the last opportunity- It means who is having the last opportunity to avoid the accident. For example- If the dog suddenly came before the car which B was driving rashly then B will be held liable as he was having the last opportunity to prevent the accident It is always the defendant who has the last opportunity according to the law and it will be treated as his negligence.23.Write a note on duty of care. Introduction: Duty of care constitutes the first of the three primary elements of tort (duty of care, breach and causation). Whilst there are many situations in which an individual might have acted carelessly, unless they have a duty of care to the person harmed by their carelessness, then no claim will arise. This is a key point - whilst a case (or problem question) might present the clearest existence of breach and causation possible, it will fail if duty of care is not present at the time of the breach Although the term ‘duty of care’ can seem a little alien at first, it can roughly be thought of a responsibility of an individual to not harm others through carelessness. For example, a driver on the road has a responsibility to other road users to not cause an accident through driving carelessly. In other words: they have a duty of care to other road users. Because of its ability to make or break a given case, duty of care is often thought of as a ‘control mechanism’ within the law - essentially, a way for the courts to make a distinction between cases which are legally significant, and therefore worth pursuing, and those cases which do not merit legal attention. The Development of the Duty of Care The legal basis for finding a duty of care has its roots in Donoghue v Stevenson 1932] AC 562. Although, as will be noted below, there exists a more modern test to establish a duty of care, Donoghue v Stevenson provides the theoretical basis for the duty of care, and thus modern negligence, and so it is necessary to be familiar with the case. Before Donoghue v Stevenson, the concept of duty of care did not exist in any particularly notable form within the English law. This meant that unless a plaintiff had a contract with a defendant, they had no means of bringing a case in negligence. This led to a considerable number of injustices when individuals were injured by clear instances of negligence. An example of this phenomenon can be seen in Winterbottom v Wright (1842) 10 M&W 109. In the case, the defendant (Wright) was contracted by the UK's Postmaster-General to maintain a horse-drawn mail coach ina safe state. The plaintiff (Winterbottom) was also contracted by the Postmaster-General to drive the coach between destinations but was injured when the coach collapsed due to disrepair. Although it was clear that Wright had acted negligently, the courts held thatWinterbottom could not sue Wright, because a contract did not exist between the two. In essence, the contract concept of privity prevented legal action. It does not take a huge amount of insight to see the problems that might have arisen as a result of the above decision. For example, a consumer injured by a bottle mistakenly filled with acid rather than soda would have no legal recourse if somebody else purchased the soda for them. Similarly, since road users do not have contracts with each other, none could be said to owe each other a duty of care, no matter how dangerously they were driving. This is clearly problematic - we want our soda producers to ensure their products are safe, and we want drivers on the road to be careful, and the threat of being sued is a useful deterrent to unsafe behaviour. Itis, therefore, fortunate that the courts established the generally applicable concept of duty of care in Donoghuev Stevenson. It should be noted that the concept of a duty of care was not created specifically in Donoghue; instead, it was restricted to a few, highly specific situations. Thus, statements that the courts ‘invented’ or ‘created’ the duty of care concept in Donoghue are false, and should be avoided. Instead the courts can be thought of as greatly widening the remit of the concept. 24. Explain the various kinds of remedies available in tort. Introduction 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. Remedies in Tort Law are of 2 types 1. Judicial Remedies: These are the remedies that the courts of law provide to an aggrieved party. 2. Extra-Judicial Remedies: If the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-judicial remedies.Judicial remedies in tort are of three main types 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 ina cause of action for torts. The word “damages” should not be confused with the plural of the word “damage” which means ‘harm’ or ‘injury’ . 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. Specific Restitution of Property: the third judicial remedy available in the Law of Torts is that of Specific Restitution of Property. Restitution means the 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 in Tort These are of five main types: . Expulsion of trespasser: A person can use a reasonable amount of force to expel a trespasser from his property . Re-entry on land: In this case, the owner of a property can remove the trespasser and re-enter his property by using a reasonable amount of force. . Re-caption of goods: In this case, the owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. Abatement: In case of a nuisance, be it private or public, a person (the injured party) can remove the object causing nuisance. Distress Damage Feasant: Lastly, distress damage feasant. In this case, a person’s cattle/other beasts move to another’s property and his crops are spoiled. The owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him.UNIT-IV 25.What is malicious prosecution ? Explain its ingredients. Introduction: Malicious Prosecution is an intentional tort in common law. In some of the jurisdictions the term “malicious prosecution” denotes the wrongful initiation of the criminal proceedings and the term “malicious use of process” denotes wrongful initiation of the civil proceedings. “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” In case of malicious prosecution the plaintiff has to prove that there was a prosecution which had no probable reason or no justified cause for the same, also it has to be proved that the case was resolved in the plaintiff's favour. In the Case of West Bengal State Electricity Board v. Dilip Kumar Ray the term “malicious prosecution” was defined by the court as follows: “A Judicial proceeding initiated by one person against another, forma wrongful or improper motive and without a probable cause to sustain it is a malicious prosecution.” In the above referred case the court also drew a line of distinction between the “act for malicious prosecution” and “an act for malicious prosecution” and “an act for abuse of process” in the following manner: “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”. In case of malicious prosecution the plaintiff has to prove that there was a prosecution which had no probable reason or no justified cause for the same, also it has to be proved that the case was resolved in the plaintiff's favour. Elements of Malicious Prosecution1. Institution of Legal Proceedings: In order to establish malicious prosecution, there must have been a Prosecution which is initiated by Defendant. The test was indicated in the case of Mohammad Amin v. Jogendra Kumar Bannerjee, where a complaint was filed by the defendant by charging the plaintiff for Cheating. An inquiry under s. 202 of the Criminal procedure Code was made by the Magistrate, Later on when the complaint was dismissed by the Magistrate under s. 203 of the Criminal Procedure code it was seen that in the present circumstances three was prosecution. Therefore, it is not necessary that the proceedings reach such a stage at which the damage to the plaintiff is seen as a result. In the case of Gaya Prasad v. Bharat Singh it was pointed that the conduct of the complainant before filing the complaint as well as the conduct after filing the complaint has to be looked onto and then it has to be decided whether he was the real prosecutor or not. If the person tries to impose false charges and misleads by providing false evidence for the purpose of the conviction of the accused, in this case, he will be considered to be the prosecutor. 2. Termination of the Prosecution in favour of the Plaintit It must be proved that the proceedings which are been complained are terminated in the favour of the plaintiff. Which means the absence of a judicial determination of his guilt. An action cannot be brought when the prosecution of the proceedings are still pending. bsence of A Reasonable and Proper Cause: Ina suit for damages it is necessary to prove that the plaintiff has been prosecuted by the defendant without any reasonable and probable cause. The question of whether there is a reasonable and probable cause of not has to be decided by the court based on the facts present in the case. Malice: ‘Malice’ means having any motive apart from the motive of bringing the offender to Justice. It is the presence of some ill and improper motive. Anger and revenge as well maybe the improper motives if they are channelled in the Criminal Justice system. It has to be proved by the plaintiff that the 48defendant has acted maliciously in prosecuting. It can also be done to gain collateral; the advantage of the same prosecution. It is not necessary that the defendant is acting maliciously right from the start if the prosecutor was innocent at the start but has subsequently become malicious the action for malicious prosecution can lie. Damage: Itis important to prove that the plaintiff has suffered damages because of the prosecution, It is not necessary for the damages to be ‘pecuniary’. There could be essentially three types of damages- (a) When the damage is caused to the man’s fame, (b) When the damage is to a person’ life, limb, and liberty (c) Damage to a person’s property. Also, the damages must be reasonable and proper. CONCLUSION Malicious Prosecution is an abuse of the process by the court by the means of a wrongful setup pf law taking shape of Criminal Charge. Mere carelessness is not an in itself a proof of malice, The tort balances all the competing principles which are the ‘freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons’. The primary aim of this concept is to protect people from ‘vengeful litigation’, be it civil or criminal. 26.Explain the difference between Libel and slender. Introductior The basic difference between libel and slander is that libel is published defamation, while slander is fleeting, mostly verbal. In the court of law, both are considered defamation that is, the communication of a false statement that harms the reputation of an individual, business, or group. At common law, libel and slander were analyzed under different sets of standards, with libel recognized as the more serious wrong. Illinois law evolved, however, and rejected this bifurcated approach in favor of a single set of rules for slander and libel. Libel and slander are now treated alike and the same rules apply to a defamatory statement regardless of whether the statement is written or oral.Libel | Slander In England, libel is a civil wrong as well as crime. Slander is merely a tort and not a crime, in India it is also a crime. Libel is actionable per se i.e without proof of actual damage. Slander is actionable only when special damage can be prove to have been its natural consequence or when it conveys certain imputations. Libel is @ defamatory statement published in a permanent form. Slander is a defamatory statement published in a temporary or transitory form In England, the period of limitation is six years for libel. In India one year The period of limitation for Slander two years and in India one year. The actual publisher of a libel may be an innocent person e.g. the news vendor who sells a newspaper containing libel. The actual publisher of a slander is not likely to be an innocent person. Libel is often published deliberately since it is usually a written statement It is likely that a slander may not be a deliberate publication and may have been uttered in the heat of argument or under provocation. 27.Define Assault and distinguish between from Battery? ASSAULT Assault comes in a picture before the battery. It happens when a person plans and tries to harm to another person when a person commits an act of battery. Act of assault can be tried under civil lawsuits as well as criminal lawsuits. BATTERY It means when a person came in physical contact or touches thing which belongs to that person or things related to that person with the intention toharm the other person this is known as Battery. In this the main ingredient physical conduct, when the accused came in physical contact with the intention to harm another person then the offense of Battery will be committed. Every battery includes assault that’s why they both are used together mostly. i Assault Battery Every battery includes assault. Battery is an Every assault does not include batter very ass : Y | aggravate form of assault. Battery includes intentional application of force to another person without any lawful justification. Assault is the attempt to commit battery. This is done to threaten a person This done to cause harm to a person. here physical contact is not necessary | In battery there must be a physical contact For an Assault a mere apprehension of | Fora battery there must be an actual danger is sufficient. application of physical force. 28.Define defamation ? And Explain with appropriate cases the essential features of defamation ? Introduction ‘A man’s reputation is considered valuable property and every man has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem ie., a right good against all persons in the world. Defamation refers to any oral or written statement made by a person which damages the reputation of another person. As per Black’s Law Dictionary, defamation means “The offence of injuring a person's character, fame, or reputation by false and malicious statements’. If the statement made iswritten and is published, then it is “libel”. If the defamatory statement is spoken, then it is a “slander”. Elements of Defamation The Statement should be made- A statement can be made by words either spoken or intended to be read, or by signs or by visible representations. For example, A is asked who stole B's diamond ring. A points to C, intending to cause everybody to believe that C stole the diamond ring. This is defamation. The Statement must refer to the plaintiff- The defamatory statement must refer to the person, class of persons or the trustees of a company. The reference may be express or implied. It is not necessary that the plaintiff has to be mentioned by name, if he can still be recognized. The person referred to in the defamatory statement can be living or dead, however, defamation suit on behalf of a dead person can be filed only if the person filing the suit has an interest. The Statement must be defamatory- Defamation starts with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement tends to diminish the good opinion that others hold about the person and it has the tendency to make others look at him with a feeling of hatred, ridicule, fear or dislike, Abusive language may also be defamatory, for example, to call a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory and what is not. To say a motorist drives negligently is defamatory. To criticize goods is not defamation. To say that a baker's bread is always unwholesome is defamatory. To state that a person has not that degree of skill which he holds himself as possessing is defamatory. The intention of the wrongdoer- The person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed The Statement should be false- A defamatory statement should be false because the truth is a defence to defamation. If the statement made is true then there is no defamation as the falsity of the statement is an essential ingredient of defamation. The law does not punish anyone for speaking the truth, even if it is ugly.+ The Statement should not be privileged-in some cases, the statements may be privileged i.e. the person who has made the statement is protected from such liability. The Statement must be published-For defamation to occur, the statement should be published. The statement should be communicated to a third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, then it amounts to defamation. In Mahendra Ram v. Harnandan Prasad, the defendant was held liable because he had sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not read Urdu and ultimately the letter will be read by someone else. The third party believes the defamatory matter to be true- The other people of the society believe that the defamatory matter said about the plaintiff is true. The Statement must cause injury- The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made. 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. 29.Write a note on false imprisonment. Introduction: Wrongful imprisonment occurs when a person (who does not have the legal right or justification) is intentionally restricts another person from exercising his freedom. When someone intentionally restricts another person’s freedom, he can be found liable for false imprisonment in civil and criminal courts. The factors which constitute false imprisonment are: 1. Probable cause of imprisonment. 2. Plaintiff's knowledge for imprisonment.3. Intent of defendant during imprisonment and confinement period matters. This is applicable to both private as well as government detention. Under criminal law, whether the restraint is total or partial, the same is actionable. When the restraint is total and the person is prevented from going out of certain circumscribed limits, the offence is that of ‘wrongful confinement’ as defined in Section 340 of IPC. Under this, the Indian Penal Code punishes wrongful imprisonment. Section 339 to 348. When it comes to the police, proving false imprisonment is sufficient to obtain the writ of Habeas Corpus. It is not mandatory that the person should be put behind bars, but he should be confined in an area from which there are no possible ways of escape except the person's will who has confined him. Depending on the laws of a particular jurisdiction, wrongful imprisonment can also be a crime, as well as intentional tort Under the pretext of false imprisonment, one does not have to lock the person up, which amounts to confinement. Basically, the defendant has to ‘unjustifiably’ restrain an individual to a particular area where a reasonable person, in a normal situation, would believe that they cannot leave. The plaintiff must have sufficient cause to believe that he would be harmed if he attempted to leave that particular bounded area. However, if that individual remains in that area willingly or after giving his own consent, not obtained through coercion or undue influence, it is not a case of false imprisonment. False imprisonment occurs when there is an unjustified restraint on an individual without his consent and where the individual cannot leave the area or they reasonably believe that they cannot leave the area. Under the law of tort, false imprisonment can be termed as the complete deprivation of liberty for any amount of time, no matter how limited or small the time period is, without any lawful excuse or proper justification. Examples Some of the situational examples of false imprisonment are as follows: + The defendant's locking the plaintiff in a room without his permission is a case of false imprisonment. However, if the plaintiff is aware of the fact, it is not false imprisonment.A security guard or a police officer detains an individual due to their appearances or use of some religious symbols for an unreasonable amount of time also falls under the category of false imprisonment. ‘An armed robber in a bank restraining the right of the employees and customers to move freely is another example of false imprisonment. 30. What is conspiracy? What should be proved in an action for conspiracy? Refer to decided cases. Introduction Conventionally, the word ‘Conspiracy’ means secret plotting for committing something unlawful or treacherous, which causes turmoil in the social order and causes instability in society. Most of the jurists are of the view that, once the conspiracy is hatched or initiated, it increases the probability of the offence to be committed, for which the conspiracy is done. Conspiracy Ina simple language, the act of conspiracy means ‘a secret plan to do something which is unlawful or harmful, which is to be executed in the near future’. According to the nature of the conspiracy, it may be classified as: 1. Criminal Conspiracy 2. Civil Conspiracy Tort of Conspiracy The most famous definition of the tort of conspiracy was given by Lord Brampton, in the case of Quinn vs Leathem, this was: “ A Conspiracy is an unlawful association of two or more than two persons, to do any act which is not legal according to the law of land or to do something harmful towards another person or to carry out an act not in itself unlawful, but by unlawful means.” Conspiracy can also be understood as a partnership between persons, where they come together to commit or involve themselves in the planning of somelustration: Suppose there are three people, Mr.A, Mr.B, and Mr.C. Now B and C undergo an agreement that clearly establishes that they are agreeing on the proposal to doing a fraudulent act towards Mr.A. In such a case, this can be said to bea kind of tort of conspiracy or civil conspiracy. Any instance where conspiracy is done for the pursuance of a wrongful act of | nature can be said to be Tort of Conspiracy. The essentials of a Civil Conspiracy: + Intention Having an intention to injure or harm someone is the foremost essential of the tort of conspiracy. For an act to become a tortious conspiracy, there must be a common intention of all the people involved in the conspiracy to do an illegal act or an act which is contrary to the law. However, the degree of intention to harm may differ and vary but the presence of the intention is an essential prerequisite. Ideally, individuals never do an act with the same motive but the crux of this theory is to see what was the predominant purpose of the association for doing conspiracy. The point to be given attention to is that only if the interest of the defendants is served by the act ,it will not be actionable even if they were pleased by the losses and damage suffered by the claimant. Illustration: Suppose Ram and Shyam form an association and they both collectively practice such business by which they gain profits but at the same time, are causing heavy losses to Mohan. Now, it was never their intention to harm Mohan but to gain profits. So, such an act would not be considered a conspiracy. + Combination It means that at least two or more than two people must be involved in the planning and there must be concerted actions between them. There may be cases where two or more than two people act with the same intention, but do this separately. So, such an act would not amount toconspiracy. For an act to be considered as conspiracy, it is necessary that the people working with the same intention must have agreed to that act mutually. As stated in the case of Topan Das vs the State of Orissa, having an association with two or more than two people is essential for conspiracy, as no one can conspire with themselves. Ilustration: For example, Ajay enters the house of Rohit for stealing money. At the same time, Ravi also enters Rohit’s house for stealing money. In this case, although the intention of both, Ajay & Ravi was the same, they never formed an association. Thus, can not be charged under conspiracy. + Overt Act Another essential of the Conspiracy under torts is that some overt act must be done by the defendants which causes harm to some other person. It is not necessary that the whole conspiracy must be carried out in the form of action. A single step towards the commission of the conspiracy may amount to the offense. For the overt act to be considered as essential, it is necessary that one of the contributors have acted for the fulfillment of the intention behind the conspiracy. Thus, for a conspiracy to be considered as a Civil Conspiracy, it is necessary that one of the conspirators has acted in furtherance of the plan. Mlustration: Suppose 4 persons agree to do an illegal act. But, a mere agreement can not make the act to be questioned. Suppose that the illegal act they agreed upon was robbery. So, unless one single step towards committing a robbery is not taken up, they can not be made liable. Types of Conspiracy Under Torts Now, we'll be discussing different types of Conspiracy Under Torts. Following are the types: 1. General2. Conspiracy to injure 3. ‘Unlawful Means’ Conspiracy General A general conspiracy is an unlawful/illegal association of two or more than two persons in pursuance of an act, which is contrary to the law and is harmful to the others. In other words, if people are forming an association with the intention of harming others, then it would be considered as a general conspiracy. For example, during an act by the actors, a certain group of people starts to hiss or start to boycott a particular actor, then, the intention or the purpose of the act becomes relevant. Conspiracy to Injure This kind of conspiracy is also known as ‘Crofter’ Conspiracy, as this doctrine has emerged in the case of Crofter Hand Woven Harris Tweed Co Ltd v Veitch. It was laid down in this case that when an association is formed by people with the sole purpose of inflicting damage upon someone, which would otherwise be lawful even if committed by one person with an intention of causing harm. In such type of conspiracy, the sole purpose of the combination or, the association is to injure someone. The most remarkable precedent was laid down in the Moghul Steamship Company's Case that, If two people, suppose X & Y are doing some act in pursuance of their business for expanding their business and increasing their gains but also end up injuring someone. In such cases, if there was no intention to harm the injured person, then the act is not actionable in the eyes of law. Another important legal case regarding this is the Quinn vs Leathem case. This case laid down that, an association of two or more people to injure another person with legal justification or excuse, by means of inducing his business customers to break contracts with him or not to deal with him is actionable. SE