Practice Questions: The Law of Torts- 2 | Legal Reasoning for CLAT PDF Download

Defences to Private Nuisance

While general defences apply to most torts, there are sc torts where only certain defences are accepted, and nuisance is one of them!
The following are the defences that are considered vali nuisance cases:

1. Statutory Authority

If the act said to be causing unreasonable interference is, or is related to, an act authorised under a statute, there can be no claim of private nuisance.

2. Acquired or Prescriptive Right

Law recognises that if for a long period of time the plaintiff has not objected to an act that is potentially disturbing, then the plaintiff cannot, after such passage of time, turn around and complain of the act. The period of time to acquire this right to continue with the activity is 20 years.

Q.1. Facts: Jack and James are two people who live in neighbouring flats sharing a common wall Jack gives music lessons and James goes to office. Because of the students’ demands. Jack is forced to change his timings from 2:00 to 4:00 p.m. to 5:00 to 7:00 p.m. James is disturbed by such lessons since he is then back from work James retaliates by making loud banging sounds on the common wall in order to disturb the music lessons. Can Jack claim damages for nuisance?
Principle: Whoever causes unreasonable interference to the right of another over his property and space is causing nuisance.
Solution: Yes, Jack can claim damages for the nuisance because the noises made by James, even though made in his own house, are excessive and unreasonable. Remember, the question is not whether Jack is causing nuisance. The question is whether James is causing a nuisance. Even if James was causing a nuisance, that does not give . Jack a right to make a racket in response.

Q.2. Facts: Prakash and Arun were neighbours Prakash started giving typing lessons in his house. This disturbed Arun, who could not put up with any sort of continuous noise, and he filed a suit for nuisance. Will he succeed?
Principle: Whoever causes reasonable interference to the right of another over his property and space is causing nuisance.
Solution: Read the problem carefully. It contains a vital clue to answering the question. It states “Arun... could not put up with any continuous sort of noise”. This shows that Arun is sensitive, and not an average reasonable man and therefore there was no nuisance, since we can’t say that the interference was ’unreasonable’ from the perspective of a normal person doing a normal activity.

Q.3. Facts: Rakesh buys the latest music system and decides to throw a party to celebrate his acquisition. The party starts at 10:00 p.m To prevent the noise from escaping, Rakesh bolts the doors and windows but even then the neighbours are kept up all night by the noise. The neighbours file a suit against Rakesh, who defends himself claiming that he took reasonable precautions to prevent the neighbours hearing the music. Will the neighbours succeed in a suit for nuisance ?
Principle: Whoever causes unreasonable interference to the night of another over his property and space is causing nuisance.
Solution : Rakesh will be liable for the tort of nuisance. He is causing an unreasonable interference by playing loud music in the wee hour of the morning, and the mere fact that he tried to stop the noise from escaping is not good enough What is important is whether disturbing noises when escaping at an inappropriate time of the day - unreasonable interference was still being caused.

Malicious Prosecution

This tort, unlike others, requires the element of malice, i.e. bad intention. This tort is also unique in that it involves two actions: an initial criminal law action, followed by a tort claim.
If a person files a criminal complaint against a person whom he knows to be innocent and then allows the criminal proceedings to take place or to continue, without informing the State of the other person's innocence, the tort of malicious prosecution is said to be committed. Essentially, this tort prevents people from deliberately harassing others by abusing the legal process.
The following requirements must be met in order to prove the tort of malicious prosecution:
(a) There must be prosecution by the tortfeasor
(b) The Prosecution must have been without Reasonable and Probable Cause
(c) The plaintiff must show that the defendant prosecuted him with malice, i.e., he deliberately sought to cause him hardship.
(d) Acquittal of the plaintiff.
(e) The Plaintiff needs to have suffered damage as a result of the malicious prosecution.

Negligence

Negligence is one of the most important torts. This is because:
(a) It is frequently committed. (Most tort actions in England are based on negligence)
(b) There is usually some angle of negligence in the commission of most other torts

Requirements of Negligence

In order to establish the tort of negligence, it must be proved that:
(a) The defendant owed a duty of care to the plaintiff.
(b) The defendant breached (failed to perform) that duty, either totally or partially.
(c) The plaintiff suffered damage as a result of this breach of duty.

Contributory Negligence

This is an important and often tricky topic, so pay careful attention Contributory negligence occurs when the plaintiff himself, by his own negligence, contributes to the damage caused to him by the negligence of the defendant

Contributory Negligence as a complete defence

Contributory negligence can, and is, used as a defence by the defendant.
Contributory Negligence as a way to reduce damages (a kind of partial defence)
Usually in India, the doctrine of contributory negligence is used by the defendant to reduce the amount of damages payable to the plaintiff. This is called apportionment of damages. The reasoning of the law is that the more you contributed to your own injury, the lesser damages you deserve.

Doctrine of Last Opportunity

Another course of action that courts used to take in case of contributory negligence was to use a test to decide which of the two parties to be held responsible. Courl have, in the past, applied a rule called the doctrine of last opportunity to determine who was liable. The doctrine of last opportunity states that the person who had the last opportunity to avoid the injury, would be responsible for any damage arising out of that injury.

Composite Negligence

This occurs where two parties negligently contribute the injury of a third party, the plaintiff. Then, both are responsible to the third party. Please remember that tl is different from contributory negligence where the Plaintiff contributes to his own injury. In the case of compos negligence, it is two parties coming together to negliger injure a third party. In this case, the Plaintiff can take one composite tortfeasor or the other or both, to court.

Q.1. Facts: Ramesh ignored a red light and attempted to cross a rail track. His engine stalled and he was stuck on the track. Prakash, who was the driver of the oncoming train, saw Ramesh’s car and would have been able to stop the train had he not waved to the driver of another train. The train hit the car, and Ramesh was hurt. Ramesh files a suit against Prakash for negligence. Will he succeed?
Principle: The liability to compensate a person for a negligent act is reduced to the extent that the victim contributed to his own injury.
Solution : Simple application of the rule of contributory negligence. Prakash could have averted injury to Ramesh but he was negligent, and Ramesh was injured. Ramesh, however, also contributed significantly to his injury, and therefore, the damages payable to him would be significantly reduced. Please note that the principle in this case supports ‘reduction (apportionment) of damages’ and cannot be used as a complete defence.

Q.2. Facts: Ravi went to Rama Stores and asked  shopkeeper to give him good biscuits, shopkeeper replied, “Customers normally buy biscuits from me". Ravi bought a packet of biscuits. While eating a biscuit, he bit into a and broke his tooth. Who should Ravi conpensation from the shopkeeper or the bite Biscuit Company ?
Principle: A person is responsible for that which he could have reasonably foreseen and prevented.
Solution: This is similar to the facts of Donoghue v. Stevenson (1932) The shopkeeper would not know what was inside the biscuit packets The BITE Biscuit Company would be responsible, since they owe a duty of care to everyone who might be affected by their actions, which clearly includes consumers like Ravi, and not the shopkeeper.

Q.3. Facts: One day Pravin was walking down the stree and as he was crossing Mark's house, a bag c flour fell on him and hurt him Pravin filed a case c negligence against Mark. Will Mark have to prov that he was not negligent or will Pravin have to prov that Mark was negligent?
Principle: If the facts point heavily towards to guilty of someone, then that person has to prove that he was not negligent.
Solution: Here, we can apply the doctrine of re ipsa loquitur because we can presume that if the bag fell from Mark’s house, then Mark hai something to do with it. If the doctrine is applied then instead of Pravin proving that Mark was liable, Mark has to prove his innocence.

Q.4. Facts: A public sector undertaking (PSU) is operating buses for its employee across the city. The buses are easily distinguishable from public buses and carries a board saying, "Only for employees'’. Mr. Prakash, however, mistakenly gets onto the bus along with the crowd of employees. A little while later, due to the driver's negligence, there is an accident, and Mr. Prakash, along with some others, are injured. Can Mr. Parkash claim damages from the PSU ?
Principle: A person cannot claim damages for ii from a risk which he voluntarily undertook.
Solution: The bus driver has a duty of care to all the passengers The question of who are valid passengers and who are not is a diffe question based more on contractual agreement This is a question that does not concern us if The duty of care extends to all those people are likely to be affected by the act.
This is not a case of volenti non fit injuria bees travelling in a bus is not a risky activity and a pe who consents to travel in a bus does not consent to injury by accident.
Yes, Prakash can claim damages from the PSU.

Q.5. Facts: Pravin knocked down a cyclist while driving his car at high speed The cyclist died and a pool of blood was formed around the body Aarti a pregnant woman, saw the body and suffered from nervous shock and had a miscarriage Will she succeed in a case for damages against Pravin ?
Principle: A person is responsible for that which he could have reasonably foreseen and prevented.
Solution: No, Pravin had no duty towards Aarti. He had a duty of care towards only the cyclist. He could not have reasonably foreseen that a pregnant woman would see the body and suffer such an injury.

Q.6. Facts: Dhruv was driving his motorcycle very fast and knocked down Shanker, a middle-aged person who was walking on the road Shanker broke his leg as a result of the accident, but since he had diabetes, his leg had to be amputated. Shanker filed a suit for negligence. Will he succeed?
Principle: A person is responsible for that which he could have reasonably foreseen and prevented.
Solution: Shanker will succeed in a suit for negligence but he will get damages only for a broken leg, and not for the fact that it was amputated. This is because Dhruv could not have reasonably foreseen that Shanker was diabetic and would therefore lose his leg. For example, if you slap someone and it turns out that they have weak teeth and all their teeth fall out - you won't be responsible for more damage than a reasonable person could expect from a slap.

Q.7. Facts: Bhagatram constructed a big water tank in his premises. Since the tank was not yet fully constructed, it was covered with gunny bags. One day, the postman entered the premises to deliver a registered letter and he fell into the tank. There was a mailbox outside where the letters could have been kept Can the postman recover damages from Bhagatram?
Principle: A person is responsible for that which he could have reasonably foreseen and prevented.
Solution: Please read the problem carefully Again, the answer lies in the question itself. The letter is a registered letter that must be received directly by Bhagatram and cannot be put in the mailbox. Bhagatram should have foreseen that such situations would arise, and therefore, he had a duty of care towards the postman.
Yes, the postman can recover damages from Bhagatram.

Q.8. Facts: 'A' carelessly left an iron pole protruding across a public road. 200 meters from that spot was a traffic signal indicating the speed limit to be at 30 kmph. B, riding a scooter at 60 kmph, noticed the protusion from a distance, but still could not avoid it, collided with the pole, and was injured. Will B succeed in an action against A?
Principle: If, as a result of carelessness, one injures another, he is legally liable to the injured victim for resulting damages, unless the victim’s own carelessness also contributes to causing the accident.
Solution: Another case of contributory negligence; however, please note how the principle is stated (he can claim unless...). 'A'was negligent, and to that extent is responsible for B's injury but B contributed as well and because the principle expresses contributory negligence as a complete defence, B will not get anything.

Q.9. Facts: Veerappa has a farm at a short distance from the railway track. On his farm he had stacks of dried straw accumulated after a harvest, as is normal in farming. One day when the train was passing, the driver was negligently operating the locomotive, allowing it to emit large quantities of sparks. The high wind, normal in open fields, carried the sparks to the straw, which caught fire, causing extensive damage Veerappa filed a suit against the Railways, which admitted liability but alleged contributory negligence.
Principle: One has to compensate another for the injury caused due to this wrongful act. The liability to compensate is reduced to the extent the latter has contributed to the injury through his own negligence.
Solution: If lots of sparks from the train had been a regular / normal feature, then maybe Veerappa may have been required to take steps to protect his straw, BUT Veerappa could never be expected to foresee that the train driver would negligently release extra sparks! So hta act of storing straw was perfectly lawful, and cannot say that he contributed to the injury caused to him. The Railways' claim will fail and they will have to pay the full extent of damages to Veerappa.

The Tort of Trespass

Elements of Trespass

Trespass to Person

This category of torts deals with the threat of, or actual use of unlawful force against a person
There are three torts in this category:
(a) Battery
(b) Assault
(c) False Imprisonment

Battery

Battery deals with the actual use of unlawful force against a person. In order for a person to prove a tort of battery, one needs to show that:
(i) There was a use of force
(ii) The use of force was without any lawful justification

Assault

The tort of assault occurs when the defendant does something that causes a reasonable apprehension of battery in the mind of the plaintiff. This means that assault occurs when the defendant does something that scares the plaintiff into thinking that he is going to be subjected to unjustified use of force, i.e., battery. Of course, law assumes that the plaintiff is a reasonable, and not a sensitive man.

Assault v. Battery

As a general thumb rule, remember that assault comes before battery takes place.

False Imprisonment

In order to prove that this tort has been committed, the following elements need to be established:
(a) The plaintiffs liberty had been totally restrained.
(b) The restraint was imposed without any lawful justification.

Trespass to Land

In the law of torts, to trespass on land means to interfere with someone’s possession of land without any lawful justification. Trespass can be committed by the trespasser himself entering the land, or by the trespasser doing it through the use of some object.
Trespass can be committed intentionally, negligently or even accidentally.
It's important to remember that trespass is a wrong against possession, and not against ownership. What this means is that even a person who possesses a property falsely can claim trespass.
Tort of Trespass does not require actual Damage: In order to prove a tort of trespass, the plaintiff does not have to show that he suffered damage. The mere fact of trespass is enough.

Q.1. Facts: Prakash has an argument with Sameer and says, "I will shoot you”. Sameer thinks that Prakash doesn't have bullets in the revolver that is being pointed at him and isn’t scared. Later it is found that there are, in fact, bullets in the revolver. Will Sameer succeed in a claim for damages flowing from the tort of assault?
Principle: The tort of assault occurs when the defendant does something that causes a reasonable apprehension of battery in the mind of the plaintiff.
Solution: In order to establish ‘assault’ there must be an apprehension of use of force in the mind of the person. In this case, there was no apprehension in Sameer’s mind, even if this was due to a mistaken understanding. Sameer will not succeed in a claim for damages Prakash may have committed some other harm, but he has not committed assault.

Defamation

If you cause injury to a person's reputation without any lawful justification, then the tort of defamation is committed
English law recognises two forms of defamation:
(i) Libel - This takes place if the representation causing injury to reputation is in a permanent form. For instance, a defamatory statement in the newspaper magazine or television.
(ii) Slander-This occurs when the defamatory statement is made in a non-permanent or in a transient form. For instance, a defamatory statement while speaking or gesturing.
In India we do not make any such classifications. Both libel and slander are treated in the same fashion, under the title of defamation

Requirements of Defamation

(a) The statement made was defamatory, i.e., injurious to reputation.
(b) It was the plaintiff who was referred to by or in that statement.
(c) The statement was published

Defences to Defamation

(a) Truth
(b) Fair Comment or Opinion
(c) Privilege

Q.1. Facts: X who is B's patient, is unhappy with the treatment he is receiving from the doctor He discontinues the treatment. His illness disappears by itself after sometime. X is very upset with B because the treatment cost him a lot of time and money, t^e writes a letter to B accusing him of cheating. He claims that B deliberately extended his treatment and caused his health to worsen. B shows this letter to his lawyer and a lawsuit for defamation is filed. Will it succeed'?
Principle: If you cause injury to a person's reputation without any lawful justification, then the tort of defamation is committed.
Solution : No, the suit will not succeed because in order for defamation to arise, the ill-intending statement must be made to third parties, or third parties must be informed of such. How can you cause injury to someone’s reputation by insulting him in private! Here the patient has just written to the doctor and no one else. In order for there to have been defamation, X must have told or made known the accusations to someone else.

Q.2. Facts: Raju is Mr. Ramanathan's servant. One morning on the way to his master’s place, Raju stops for a cup of coffee at an empty shop. At the coffee shop Raju sees Natwar. and calls him a liar and a thief. Natwar sues Mr. Ramanathan saying that there was defamation and it was carried on in the course of employment. Will he succeed?
Principle: If you cause injury to a person's reputation without any lawful justification, then the tort of defamation is committed.
Solution : No. the suit will not succeed because in order for defamation to arise, the ill-intending statement must be made to third parties, or third parties must be informed of such. How can you cause injury to someone's reputation by insulting him in private! Of course, if the problem mentioned that there were other people at the shop, then the answer would have been different.

Q.3. Facts: Krishna said to Radha "You are a thief, since you have stolen my heart". Radha filed a suit for theft. Will she succeed?
Principle: If you cause injury to a person's reputation without any lawful justification, then the tort of defamation is committed.
Solution: No. The suit will not succeed because in order for defamation to arise, the ill-intending statement must be made to third parties, or third parties must be informed of such. How can you cause injury to someone's reputation by insulting him in private! Another reason is that no reasonable person would have taken this as a serious statement.

Strict and Absolute Liability

The most basic and sacrosanct of all legal principles is that a person is liable only for the harm caused by him.
With development and newly emerging technologies, however, it became necessary to expand this inflexible principle to cater to certain situations where a person is held liable for harm that he did not cause either intentionally or negligently. In such cases, even if the person made an attempt to prevent the harm, he may be held liable. This is called no fault liability. There are two rules in this regard, and they are:
(A) The Rule of Strict Liability.
(B) The Rule of Absolute Liability.

(A) The Rule of Strict Liability

This rule was laid down in the famous case of Rylands v. Fletcher(1868). In this case, the defendant constructed a reservoir on his land to provide water to his mill. The defendant did not know that there were some disused mineshafts just next to his reservoir. The water burst through the reservoir into the disused mineshafts, and flooded the plaintiffs coalmines in the adjoining land The defendant did not know of the shafts, and there was no negligence on his part though there was negligence on the part of the independent contractors he had hired to build the reservoir. Yet, the court held him liable. The court said that the principle governing such a situation is one of “no fault” or, strict liability, because if a person brings a potentially dangerous thing on his land, and if such a thing escapes and does damage, then such person should be held responsible, even if he were not negligent Here the huge reservoir was said to be the potentially dangerous thing.
The court laid down some criteria for applying the rule of strict liability in this case:
(a) A dangerous thing must have been brought by the person on his land
(b) Such dangerous thing must have escaped
(c) The thing must have been intended to be used for some non-natural purpose

Defences to Strict Liability: The following are defences to strict liability:
1. The fault of the Plaintiff himself
2. Vis Major Act of
3. Act of Third
4. Plaintiffs consent to bringing and keeping of dangerous thing
5. Statutory Authority

(B) The Rule of Absolute Liability

This is similar to the rule of strict liability, except for the fact that there are no defences to it! In effect, there are absolutely no excuses for the harm caused. If the rule of strict liability sounds unfair, then consider the rule of absolute liability! As we explained earlier, however, these rules are for specific public interest because very dangerous activities are involved.
The rule of absolute liability was evolved in the famous Indian case of M.C Mehta v. Union of India (1987). This case dealt with the leakage of poisonous Oleum gas from one of the units of Shriram Industries in Delhi, as a result of which, several people were injured. The Court held that irrespective of any lack of negligence or intention, the defendant was absolutely liable for the damage caused. They said that in this rule of absolute liability, there were no defences as were there in the Rylands strict liability rule. The logic the court used was that a person who carries on a dangerous activity for profit is responsible for any harm that may flow from such activity.
This rule of absolute liability was followed in the Bhopal Gas Leak case and is sometimes used in environmental pollution cases.

Q.1. Facts: Siddharth has a ferocious dog called Rocky, which he always keeps on a leash. There was a ``Beware of Dog" notice outside the house One day, Siddharth’s servant was walking the dog inside the house premises when a ball belonging to some children fell into the premises and hit the dog. The dog lost his cool, broke the leash and ran outside the gate. It then attacked the children who were playing outside, and hurt them. The children's parents sued for damages, claiming strict liability. Will they succeed?
Principle: If a person brings a potentially dangerous thing on his land, and if such a thing escapes and does damage, then such person should be responsible, even if he was not negligent.
Solution : ‘Rocky’ has shown the “propensity" to be a potentially dangerous thing, and if for their benefit Siddharth and his family wish to keep him, then they must also take the responsibility for the consequences that arise from him escaping and people being injured. A dog that had not been identified as, or not shown the tendency to be. ferocious would not be a “potentially dangerous thing” and no strict liability would be attached. The parents will succeed in a claim for strict liability. You may wonder about the fact that the children had angered the dog, and that it broke the leash, but please remember that you have to stay focused on the ingredients of the principle of strict liability Ask yourself - is it a dangerous thing? Yes. Did it escape? Yes. Then strict liability applies. The children had not caused the escape - the very purpose of a leash or fencing is to prevent the dog from escaping. If the dog then escapes, the owner cannot get away. If the dog had been on a leash, and a child had untied the leash then the liability could have been different.

Q.2. Facts: Ramesh is the owner of a building that has several flats. He himself occupies the ground floor. Ramesh has a large generator in one of his rooms, which supplies electricity to the flats. One day, this generator short-circuits and destroys some of the electrical equipment belonging to the first floor tenant The tenant sues Ramesh for damages claiming that the latter is strictly liable. Will he succeed?
Principle: If a person brings a potentially dangerous thing on his land for his purpose, and if such thing escapes and does damage then the injured parties can sue him as long as they had not chosen to enjoy the benefits of that dangerous thing.
Solution : No, the tenant will not succeed. There was common benefit because everyone was using the electricity - therefore the others had chosen to enjoy the benefits of the dangerous thing.

Q.3. Facts: Cynamide Company was manufacturing acrylonitrile, an extremely toxic chemical. This chemical is used in manufacturing certain pharmaceuticals, manufactured in another factory, owned by Cynamide itself. While transporting acrylonitrile stored in a sealed container to the factory where the pharmacy utica ls were manufactured, there was unexpected leakage from the container and the chemical spilt on the ground. The local municipal authorities immediately rushed in and decontaminated the place The container was resealed within a short period of time and subsequently it was realised that the contamination was not that significant, and it was not necessary to spend a lot of resources for decontamination. The municipal authorities filed a suit against Cynamide Company for whatever cost had been incurred in the decontamination process. But Cynamide Company argued that it would pay only a small sum, which could have taken care of the contamination in this case.
Principle: Whoever stores a substance which would cause damage on escape shall be strictly liable (i.e. liable even when he has exercised necessary care) for any damage caused by the escape of that substance.
Solution: A Direct application of the principle. Cynamide Company is responsible for any damage resulting from the substance escaping, any damage. Doesn’t matter if less expense (financial expenses are also ’damages’) could have been incurred. The issue is-who caused the expenses to be incurred and NOT how much should have been incurred! So Cynamide Company is liable for the complete expenses.