Negligence, Trespass and Defamation under Law of Torts | Legal Reasoning for CLAT PDF Download

Negligence under the Law of Torts

• Negligence as a tort has evolved from English law and is accepted by Indian law as a substantially important tort. In order to prove that an act was negligent, it is necessary to prove all the essentials namely duty, breach of duty, damages and actual and proximate cause.

Essentials of Negligence

1. The defendant owes a duty of care to the plaintiff

• It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such duty. It depends in each case whether a duty exists.
• e.g- A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation.
• The defendant pleaded that he did not owe any duty of care to the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter and that he would be liable for the breach of the duty.
• e.g-  The plaintiff with a package was trying to board a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track.
• The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo CJ said the conduct of the defendant’s servant was not wrong. Relatively to her, it was not negligence at all.

Duty depends on reasonable foreseeability of injury

• If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.

No liability when the injury is not foreseeable

• The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice cream.
• Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of the tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event.

Reasonable foreseeability does not mean the remote possibility

• A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway. This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence.

Duty of care

• The defendant boarded a train that had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform.

2. Breach of duty

• Breach of duty means non-observance of due care which is required in a particular situation. The law requires taking of two points into consideration to determine the standard of care required:

The importance of the object to be attained

• Due to the construction of a canal by the state government, all the trees of the plaintiff’s orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of the canal was of great importance and to not cementing the floor was not the negligence of the state government.

The magnitude of risk

• A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.

The amount of consideration for which services, etc. are offered

• The question of liability of a five-star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five-star hotel owner and an insurer so far as the safety of the guests is concerned. It was also observed, that a five-star hotel charging high from its guests owes a high degree of care as regards the quality and safety of its structure and the services it offers and makes available.

3. The plaintiff suffered damage

• It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.

Res ipsa loquitur

• It means ‘the things itself speaks’. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant.
• Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street. When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable.

Contributory Negligence

• When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence.
• This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm.
• e.g- The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of a tree, fell down, received an injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of traveling on the roof of the bus.
• e.g- The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence.

The doctrine of alternative danger

• There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.
• e.g-The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover.
• Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, was struck against a stone lying by the roadside and died. The defendants were held liable.

Trespass under Law of Torts

• In contemporary times, each individual wishes to protect his or her body and property from external interference as well as from the malafide intention to harm it. Several instances have been there where the wrongful intervention of an individual in another’s property and body leads to damage publically or privately. Trespass is a common term to protect the common man from such injury.
• An intentional wrongful act done directly with a view to harming the other person or his or her property is called trespass. Intentional wrongful act here implies that the act should be committed voluntarily. In other words, the intention is a necessary element of trespass.

Trespass can be categorised into two types:

1. Trespass to the Person

Assault and Battery

• An assault is an intentional and unlawful threat to cause bodily injury to another by force. In the case of an assault, the plaintiff is under reasonable apprehension of receiving a physical injury inflicted on him by the defendant.
• An assault is committed even when there is no actual contact with the plaintiff. However, mere verbal threats will not amount to assault unless there is a presumption of immediate use of force.
• A battery on the other hand is the intentional application of force against a person in opposition to his will. The use of force thus will be without any lawful justification.
• The quantum of force is immaterial in an event of battery even if it does not cause any actual harm. Even a minimum physical contact with another person in anger may constitute battery.
• It can be mentioned here that assault and battery are intentional torts where the defendant actually intends to put the plaintiff under the apprehension of physical injury or intends to wrongfully touch the plaintiff. Thus, to show a fist to a person may amount to assault, but inflicting the blow physically will result in a battery. In most cases assault precedes battery.

False Imprisonment

• False imprisonment can be defined as the intentional confinement of a person, without lawful justification, for an appreciable length of time, however short it might be. It is an act of the defendant, which causes unlawful confinement of the plaintiff.
• The length of time of confinement is of no relevance to constitute an offence of false imprisonment. Moreover, the place of detention may be the plaintiff’s own house or even a street, provided the restraint was total and legally unjustified. Further, physical confinement is also not necessary to constitute unlawful detention.

Remedies for False Imprisonment

• Habeas Corpus: The writ of Habeas Corpus is issued by the Supreme Court (vide Article 32) or by the High Courts (vide Article 226) to ensure the release of a person detained wrongfully
• Self-Help: A person who is unlawfully detained may use ‘Self-Help’ to escape from such detention even by applying reasonable force.
• Action for Damages: The person who has been detained unlawfully can bring an action for compensation in the form of damages.

Trespass to Land

• Trespass to land occurs when a person directly enters upon another’s land without permission, or remains upon the land, or places or projects any object upon the land.
• This tort is actionable per se without the need to prove damage. By contrast, nuisance is an indirect interference with another’s use and enjoyment of land, and normally requires proof of damage to be actionable.

The way in which tress may occur

Entering upon land

• Walking onto land without permission, or refusing to leave when permission has been withdrawn, or throwing objects onto land are all example of trespass to land.

Trespass to the airspace

• Trespass to airspace above the land can be committed. E.g D committed trespass by allowing an advertising board to project eight inches into P’s property at ground level and another above ground level.
• Note- that s76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property at a height above the ground which is reasonable. However, s76(2) confers a statutory right of action in respect of physical damage caused by aircraft, actionable without proof of negligence.

Trespass to the ground beneath the surface

• e.g. the Ds mined from their land through to the P’s land. This was held to be a trespass to the subsoil.

Possession of land

• This tort was developed to protect a person’s possession of land, and so only a person who has exclusive possession of land may sue. Thus, a landlord of leased premises does not have exclusive possession, nor does a lodger or a licensee. However, a tenant or subtenant does.

Continuing trespass

• A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed on the land. It will lead to a new cause of action each day for as long as it lasts. For example,  Ds built supports for a road on P’s land. The Ds paid damages for the trespass but were held liable again in further action for failing to remove the buttresses.

Mistaken of negligent entry

• Trespass to land is an intentional tort. However, intention for the act is required, not an intention to trespass. Consequently, deliberate entry is required and lack of knowledge as to trespass will not be a defence.

Mistaken entry

• The D owned land adjoining P’s, and in mowing his own land he involuntarily and by mistake mowed down some grass on the land of P, he is not held liable.

Involuntary entry

• An involuntary trespass is not actionable: where D was carried onto the land of P by force and violence of others; there was trespass by the people who carried D onto the land, and not by D.

Negligent entry

• A negligent entry is possible and was considered in League Against Cruel A v. B. The Ps owned 23 unfenced areas of land. Staghounds used to enter the land in pursuit of deer.
• The Ps sued the joint Masters of the Hounds for damages and sought an injunction against further trespasses. Park J issued an injunction in respect of one area restraining the defendants themselves, their servants or agents, or mounted followers, from causing or permitting hounds to enter or cross the property. Damages for six trespasses were awarded.

The judge said

• ”Where a master of staghounds takes out a pack of hounds and deliberately sets them in pursuit of a stag or hind knowing that there is a real risk that in the pursuit hounds may enter or cross prohibited land, the master will be liable for trespass if he intended to cause the hounds to enter such land or if by his failure to exercise proper control over them he causes them to enter such land.”

Defences Against Trespass

Licence

• A licence is permission to enter the land and maybe express, implied or contractual.

A dictionary definition is as follows:

• If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the licensee becomes a trespasser. Such a person is allowed a reasonable time in which to leave If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the licensee becomes a trespasser.
• Such a person is allowed a reasonable time in which to leave. There is also the defence of estoppels by acquiescence, that is, consent which is expressed or implied from conduct, eg, inactivity or silence  mere delay in complaining is not acquiescence).
• “In land law, a licence is given by X to Y when X, the occupier of land, gives Y permission to perform an act which, in other circumstances, would be considered a trespass, e.g., where X allows Y to reside in X’s house as a lodger.
• A bare licence is a merely gratuitous permission. A licence may be coupled with an interest, as where X sells standing timber to Y on the condition that Y is to sever the timber; in this case, the sale implies the grant of a licence to Y to enter X’s land.

Rights of entry

A person may exercise a lawful right of entry onto land, for example:

• A private right of way granted to the defendant;
• A public right of way;
• A right is given by the common law, such as the right to abate a nuisance; and
• A right of access given by statute,

Remedies to Trespass

Remedies include

• Damages (which will be nominal if there is only slight harm to land).
• An injunction to prevent further acts of trespass (at the discretion of the court).
• An action for the recovery of land if a person has been deprived of lawful possession of the land (formerly known as ejectment).

Defamation Under Law of Torts

• A man’s reputation is his property and is more valuable than any other tangible asset. Every man has the right to have his reputation preserved. It is acknowledged as an inherent personal right of every person. It is a jus in rem, a right good against all the people in the world. The degree of suffering caused by loss of reputation far exceeds that caused by loss of any material wealth.

Definition of Defamation

• Defamation is the publication of a statement that reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.

Kinds of Defamation

Libel

• The publication of a false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. The statement must be in a printed form, e.g., writing, printing, pictures, cartoons, statue, waxwork effigy etc.

Slander

• A false and defamatory statement by spoken words and/or gestures tends to injure the reputation of others. It is in a transient form. It also involves the sign language used by the physically disabled.

What Has To Be Proved

Subject to the differences between the two types of defamation, libel, and slander (explained below), the claimant must prove:

• that the statement was defamatory,
• that it referred to him, and
• that it was published, ie communicated, to a third party.

The onus will then shift to the defendant to prove any of the following three defences:

• truth (or justification),
• fair comment on a matter of public interest, or
• that it was made on a privileged occasion.

In addition, some writers put forward the following as defences in their own right:

• unintentional defamation, and
• consent.

The distinction between Libel and Slander

1. Libel is a defamatory statement in permanent form, for example,

• writing,
• wax images
• films
• radio and television broadcasts , and
• public performances of plays
• Slander is a defamatory statement in a transient form.

2. Libel is actionable per se whereas damage must be proved for slander, except in four instances:

• Where there is an allegation that the claimant has committed an imprisonable offence;
• Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS;
• Where there is an imputation that a woman has committed adultery or otherwise behaved in an ‘unchaste’ fashion; or
• Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling.

3. Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

Defenses to the Tort of Defamation

1. Justification by truth

• In a civil action for defamation, truth is a complete defence. However, under criminal law, it must also be proved that the imputation was made for the public good. Under civil law, merely proving that the statement was true is a good defence the reason being that “the law will not permit a man to recover damages in respect of an injury to a character which he either does no or ought not to possess”

2. A fair and bona fide comment on a matter of public interest

• It involves making fair comments on matters of public interest. For this defence to be available, the following essentials are required:
  • It must be a comment, i.e., an expression of opinion rather than an assertion of fact
  • The comment must be fair, i.e., must be based on the truth and not on untrue or invented facts
  • The matter commented upon must be of public interest.

3. Privilege

Absolute Privilege

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

Qualified Privilege

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