Revision Notes: Law of Torts | Legal Reasoning for CLAT PDF Download

Nature of Tort

• Derived from the Latin word "tortum," meaning twisted conduct.
• Based on the principle “Ubi jus ibi remedium” – where there is a right, there is a remedy.
• Originated in English common law and judicial decisions.
• Applied in India in the absence of specific statutory laws.

Definition of Tort:

• Salmond: A civil wrong addressed through common law action for unliquidated damages, distinct from breaches of contract or trust.
• Winfield: Breach of a duty fixed by law towards individuals, remedied by unliquidated damages.
• Fraser: Violation of a private individual’s right, resulting in compensation.

Limitation Act, 1963 (Section 2(m)):

• Defines tort as a civil wrong.
• Does not include breaches of contract or trust.

Key Points:

• Tort is a civil wrong but not all civil wrongs are torts (e.g., breach of contract or trust).
• Damages in tort cases are unliquidated, not pre-decided.

Tort vs. Torts:

• Tort: Every wrongful act without justification is considered a tort, emphasizing the act itself (Winfield's perspective).
• Torts: Refers to specific wrongs under this branch of law, with liability arising only for defined torts (Salmond's perspective).

Essentials of Tortious Liability:

• Act or Omission: The defendant must have committed an act or omission that violates a legal right vested in the plaintiff.
• Legal Damage:This act or omission must result in legal damage, i.e., a violation of the plaintiff’s legal right.
  • Both positive acts and omissions can make a person liable in torts if they are wrongful.
  • The act or omission must breach a legal duty imposed on the person.
• Maxims:
  • Injuria sine damnum: Infringement of a legal right without substantial harm or damage to the plaintiff. Focuses on violation of legal rights.
  • Damno sine injuria: No action lies in court even if there’s harm or loss caused to the plaintiff without violation of a legal right.

Examples:

• Injuria sine damnum: Ashby v. White (Voter denied voting rights but no harm; defendant still liable), Bhim Singh v. State of J&K (MLA wrongfully detained; awarded damages).
• Damno sine injuria: Gloucester Grammar School Case (Competition caused loss but no violation of legal right; no remedy), Mogul Steamship Co. v. McGregor Gow and Co. (Competitive reduction in freight; lawful means used).

Cases:

• Chesmore vs. Richards: Defendants not liable as they lawfully used underground water that affected the plaintiff’s mill.
• Town Area Committee v. Prabhu Dayal: Demolition of illegally constructed building deemed lawful, regardless of malicious intent, if legal provisions were violated.

Classification of Torts

Mental Element:

• Intentional Torts: Involving intention where the mental element is relevant (e.g., Assault, Battery, Trespass).
• Negligence Torts: Involving negligence where the mental element is a factor.
• Strict/Absolute Liability Torts: Where the mental element is not relevant, such as strict liability or absolute liability wrongs.

Differentiation Between Tort, Crime, and Breach of Contract:

• Crime: Public wrong resulting from breaching duties recognized by criminal law, prosecuted by the state.
• Breach of Contract: Non-performance of duties agreed upon in a contract.
• Tort: Private wrong violating duties recognized by tort law, with the injured party bringing the action against the wrongdoer.

Characteristics of Tort:

• Private wrong contravening legal rights, with the injured party initiating the action.
• Civil wrong compoundable in tort litigation, allowing the complainant to withdraw the suit.
• Damages in torts are unliquidated, not predetermined.

Overlap with Criminal Law:

• Various wrongs like Assault, Defamation, Negligence, Conspiracy, and Nuisance can be addressed both under criminal law and tort law, showcasing an overlap in legal domains.

The General Defenses in tort:

1. Volenti Non Fit Injuria (Consent Defense):

• Literal Meaning: “To one who volunteers, no harm is done.”
• Plaintiff waives rights and consents to suffer harm.
• Consent can be expressed or implied.

Conditions for Valid Consent: a) Must be free and not under compulsion or fraud. Guardian’s consent is valid if the person is unable to give consent.

• Example: R v. Williams (Consent vitiated by fraud).

Knowledge of Risk vs. Consent of Risk:

• “Scienti non fit injuria”: Knowledge of risk doesn’t equal consent to risk.
• Negligence by the defendant voids the defense (Smith v. Charles Baker and Sons).

Exceptions to Volenti Non Fit Injuria:

• Rescue Cases:Plaintiff voluntarily rescues someone from a danger created by the defendant.
  • Example: Haynes vs. Harwood (Constable rescuing people from horses).
  • Example: Baker v. T.E. Hopkins and Sons (Dr. Baker rescuing workmen from fumes).

Other General Defenses:

• Plaintiff is the wrongdoer.
• Inevitable accident.
• Vis Major (Act of God).
• Private defense.
• Mistakes
• Necessity
• Statutory authority.

Breach of Statutory Duty:

• If the defendant breaches a duty imposed by statute, the defense of volenti non fit injuria cannot be invoked.
• Example: A company fails to comply with safety regulations, leading to an employee’s injury.

Negligence and Consent:

• When a plaintiff consents to a certain level of risk, there’s a presumption that the defendant will not be negligent.
• If the defendant is negligent despite the plaintiff’s consent, the defense of volenti non fit injuria cannot be used.
• Example: If a patient consents to a risky medical procedure, but the doctor performs negligently, the doctor cannot claim volenti non fit injuria.

Unfair Contract Terms Act 1977 (England):

• This act limits a person’s ability to restrict or exclude liability resulting from negligence through contract terms or notices.
• It prevents parties from unfairly excluding liability for their negligent actions through contractual agreements.
• Example: A business cannot escape liability for injuries caused by its negligence by inserting clauses in contracts that attempt to waive such liability.

2. Plaintiff as the Wrongdoer:

• The legal principle “Ex turpi causa non oritur action” states that no action arises from an immoral or illegal cause.
• If a plaintiff’s legal remedy is connected to their own illegal act, they may be unable to pursue legal recourse.

Pollock’s View:

• According to Pollock, a plaintiff who is a wrongdoer is not automatically prevented from recovering in tort unless their unlawful conduct is directly connected to the harm they suffered.

Case Example – Bird v. Halbrook:

• In this case, the defendant set up spring guns in their garden without providing any notice to inform trespassers about the guns.
• The plaintiff, a trespasser, was injured by these spring guns.
• The court held that despite being a trespasser, the plaintiff was entitled to recover damages because the force used by the defendant was excessive, and there was no warning provided to the public about the spring guns.
• This case illustrates that even if the plaintiff is partly at fault (trespassing), they may still be able to recover damages if the defendant’s actions were unreasonable or excessive.

3. Inevitable Accident

• Definition: An event not intended and beyond foreseeability or prevention by reasonable precautions, often used as a defense in negligence claims.
• Legal Precedents:
  1. Stanley vs. Powell: Defendant accidentally injured plaintiff while shooting at a pheasant due to a reflected bullet. Considered an inevitable accident, the defendant is not liable.
  2. Brown vs. Kendall 1850: Defendant accidentally injured plaintiff while trying to separate dogs fighting. Deemed a sheer accident, no liability.
  3. Holmes vs. Mather 1857: Defendant’s horses were startled by a dog, causing an accident. Defendant not held liable due to unforeseeable circumstances.
  4. Nitro-Glycerine case: Defendant carriers received a package without knowing its contents (nitro glycerine). When it exploded during examination, causing damage, defendants were not held liable as it was unforeseeable.

4. Vis Major i.e. Act of God

• Definition: An extraordinary occurrence of natural forces without human intervention that couldn’t have been foreseen or prevented by reasonable means.
• Essential Conditions for Defense:
  1. The event causing damage must result from natural forces without human intervention.
  2. The event must be unforeseeable despite reasonable care and foresight.
• Legal Precedents:
  1. Nichols v. Marsland: Defendant’s artificial lake overflowed due to extraordinary rainfall, damaging plaintiff’s bridge. Defendant not liable as it was an act of God.
  2. Blyth v Birmingham Waterworks 1856: Burst pipe due to severe frost caused damage. Court ruled it as an act of God, relieving the defendant from liability.
  3. Kallu Lal v. Hemchand: Normal rainfall causing wall collapse resulting in death. Court held that the defense of the Act of God couldn’t be pleaded as normal rainfall doesn’t qualify.

The Act of God defense applies when natural forces beyond human control cause damage, absolving defendants of liability if the event was unforeseeable and couldn’t be prevented by reasonable means.

5. Private Defense

• Definition: The legal right to use reasonable force to protect oneself or one’s property from imminent danger.
• Conditions for Exercising Self-Defence:
  1. There must be an imminent threat to life or property.
  2. The force used must be reasonable and justified, restricted to the extent necessary for protection.
  3. The force cannot be used for retaliation or counter-attack.
• Legal Precedents:
  1. Bird v. Halbrook: Defendant’s spring guns injured a trespasser due to lack of warning. Court ruled against the defendant as the force used was excessive and not justified for protection.
  2. Morris v. Nugent 1836: Defendant shot plaintiff’s dog that was running away after biting. Court held the defendant not justified as the dog wasn’t attacking at the time.

Private defense allows individuals to use reasonable force to defend themselves or their property but only in response to imminent danger. It prohibits excessive force or retaliation beyond what is necessary for protection.

6. Mistake in Tort Law

• Mistake of Law vs. Mistake of Fact:
  • Mistake of law: Belief that a certain action is legal when it’s not.
  • Mistake of fact: Incorrect understanding of facts relevant to a situation.
• General Rule:
  • Mistakes, whether of law or fact, are generally not valid defenses in tort law.
• Legal Precedents:
  • Morrison v. Ritchie & Co: Defendant mistakenly published a defamatory statement about plaintiff. Court held the defendant liable as a mistake of fact or good faith doesn’t excuse defamation.
  • Consolidated Company vs. Curtis: Auctioneer mistakenly sold goods not owned by him. Court ruled that a mistake of fact doesn’t absolve liability in conversion.
• Exceptions:
  • Malice Cases: In torts requiring malice (e.g., malicious prosecution, deceit), a defendant can argue honest and mistaken belief as a defense.
  • Mental Element Cases: Mistakes may be relevant in cases where mental state is a crucial element in constituting the wrong.

Mistakes, whether about the law or the facts, are generally not accepted as defenses in tort law. However, in certain limited cases such as those involving malice or where mental elements are crucial, a mistaken belief might be considered in defense.

7. Necessity as a Defense in Tort Law

• Definition and Basis:
  1. Necessity defense justifies an act causing harm if it prevents a larger harm.
  2. It applies to urgent cases of imminent danger.
• Comparison with Inevitable Accident:
  1. In necessity, harm is intentionally caused to prevent greater harm, unlike in inevitable accidents where harm occurs despite efforts to prevent it.
• Legal Precedents:
  1. Cope v. Sharpe: Defendant entered plaintiff’s property to stop fire spread, preventing greater harm. Court ruled the defendant not liable for trespass due to necessity.
  2. Carter v. Thomas: Defendant entered plaintiff’s land to extinguish fire already being handled by firemen. Defendant was held liable for trespass as his act wasn’t necessary to prevent greater harm.

The necessity defense in tort law justifies intentional harm if it prevents a larger harm, applicable in cases of imminent danger where urgent action is required.

8. Statutory Authority as a Defense in Tort Law

• Definition:
  1. If an act is authorized by law, it’s not actionable as a tort, providing a complete defense. The injured party can seek compensation as per the statute.
• Types of Authority:
  1. Absolute Authority:
     • Mandated by statute despite injurious consequences. Complete defense, providing no remedy except as outlined in the law.
  2. Conditional Authority:
     • Permits acts but doesn’t command them. Defense applies if exercised without malice or negligence.
• Legal Precedents:
  1. Vaughan v. Taff Vale Rail Co.: Sparks from authorized railway operations caused fire, but defendants took proper care as per statute, absolving them of liability.
  2. Hammersmith Rail Co. v. Brand: Railway operations depreciated property value as per statutory provisions, serving as a complete defense.
  3. Smith v. London and South Western Railway Co.: Negligence in leaving hedges near the railway made the railway company liable for resulting damages.
  4. Metropolitan Asylum District v. Hill: Conditional authority for a hospital was deemed a nuisance in a residential area, leading to an injunction against the hospital.

Statutory authority provides a complete defense in tort cases if the act is authorized by law, either absolutely or conditionally, barring any remedy except compensation as per the statute.

Negligence in Tort Law

• Definition: Negligence, from the Latin term ‘Negligentia’ meaning ‘disregard,’ can manifest in three forms:
  • Nonfeasance: Failing to do something that should have been done, like neglecting repairs on a building.
  • Misfeasance: Improperly doing an action that should have been done correctly, such as using subpar materials in repairs.
  • Malfeasance: Doing something that should not have been done, like using prohibited materials leading to hazardous conditions.
• Theories:
  • Subjective Theory: Views negligence as a faulty mental state penalized by damages.
    1. Austin and Salmond define negligence as a culpable carelessness or undue indifference.
    2. Winfield sees it as inadvertence or lack of desire for harmful consequences.
  • Objective Theory: Considers negligence as conduct breaching the duty to take reasonable care.
    1. Pollock defines negligence as a breach of the duty to take precautions against harmful actions.
  • Legal Precedent:
    • Donoghue v. Stevenson: Established key principles:
      1. Negligence as a separate tort.
      2. Duty of care for manufacturers towards end consumers, shaping consumer protection laws.
      3. “Neighbor principle” by Lord Atkin extended negligence liability to potential affected parties beyond immediate contracts.

Essentials of Negligence in Tort Law

1. Duty to Take Care:

• Legally recognized obligation to avoid unreasonable conduct leading to foreseeable risk of harm.
• Established in Donoghue v. Stevenson, emphasizing reasonable care to prevent harm to others.
• Doctrine of Privity of contract does not apply in tort cases.
• Bourhill v. Young case illustrated absence of duty when harm is not foreseeable.

2. Reasonably Foreseeable Injury:

• Negligence hinges on foreseeability of harm; unforeseeable injuries may absolve the defendant.
• Examples include Glasgow Corporation v. Muir and Balton v. Stone.

3. Breach of Duty:

• Failure to exercise necessary care in a situation, measured by the standard of a reasonable person.
• Blyth v. Birmingham Waterworks Co. set the precedent for prudent caution.
• Latimer v. A.E.C Ltd. case exemplified exercising reasonable care in slippery floor conditions.

4. Damage:

• Actual harm suffered by the plaintiff is essential for negligence liability.
• Negligence is not actionable per se; damages must be proven.

5. Res Ipsa Loquitur:

• “The thing speaks for itself”; shifts the burden of proof to the defendant in certain cases.
• Applied when the accident’s circumstances suggest negligence that wouldn’t occur without it.
• Originated from Byrne v. Boadle case, exemplifying a falling barrel causing injury.

6. Defenses in Negligence:

• Contributory Negligence: Plaintiff’s own negligence contributed to the harm.
• Act of God: Extraordinary, unforeseeable events beyond human control.
• Inevitable Accident: Unavoidable mishap despite reasonable care.

Contributory Negligence:

• Definition: Occurs when the plaintiff’s negligence contributes to the damage caused by the defendant’s negligence.
• Burden of Proof: Lies with the defendant to prove the plaintiff’s negligence.
• Criteria: Liability depends on whether either party could have avoided the harm through reasonable care.
• Examples:
  • Municipal Corporation of Greater Bombay v. Lakshmi Iyyar: Both parties held liable due to negligence.
  • Rural Transport Service v. Bezulum Bibi: Driver and conductor held responsible despite contributory negligence by the passenger.
  • Harris v. Toronto Transit Commission: Contributory negligence found in a passenger extending arm outside the bus despite warnings.

Last Opportunity Rule:

• Definition: Person having the last opportunity to avoid an accident is held liable.
• Example:Davies v. Mann: Defendant driving a wagon held liable as they had the last chance to prevent the accident.

Doctrine of Apportionment in India:

• Reduction of Damages: Plaintiff’s damages reduced based on their proportion of negligence.
• Kerala Torts [Miscellaneous Provisions Act 1976]: Allows for apportionment of damages in cases of contributory negligence.

Doctrine of Alternative Danger:

• Definition: Plaintiff permitted to choose an alternative danger to avoid immediate peril caused by the defendant’s negligence.
• Example:Jones v. Boyce: Plaintiff jumped off a coach to avoid danger due to negligent driving, entitled to damages.

Composite Negligence:

• Definition: Occurs when negligence by multiple persons leads to damage to a third party.
• Classification in England: Joint tortfeasors (common design) vs. Independent tortfeasors (acting independently).
• Indian Perspective: No distinction; multiple responsible parties termed as composite tortfeasors.

Difference between Contributory negligence and Composite negligence

• Contributory negligence and composite negligence are distinct legal concepts concerning liability for damages in cases of negligence. Contributory negligence occurs when the plaintiff’s own negligence contributes to the damage caused by the defendant’s negligence, leading to shared responsibility between them for the resulting harm. This often involves a proximate relation between the actions of the plaintiff and the defendant, where both parties are held accountable for the consequences.
• On the other hand, composite negligence involves situations where the damage results from the negligence of multiple persons, referred to as wrongdoers. In such cases, these wrongdoers are jointly liable for the injury sustained by the plaintiff, regardless of any direct relation between the plaintiff and the defendants’ actions leading to the damage. Unlike contributory negligence, where the plaintiff’s claim for damages may be reduced based on their proportion of negligence, in composite negligence, there’s no reduction in damages based on the individual wrongdoers’ negligence.
• To illustrate, consider a scenario where a passenger contributes to a car accident due to their negligence, leading to contributory negligence. In contrast, composite negligence might involve two drivers causing an accident due to their respective negligence, making both drivers jointly liable for the resulting damage. These distinctions highlight the nuanced legal principles governing negligence and liability in different contexts.

Remoteness of Damage

Principle of Remoteness of Damage:

• The principle determines the extent of liability for consequences of a wrongful act.
• Only proximate consequences lead to liability; remote consequences do not.
• Consideration of immediate, not remote, causes is emphasized (In jure non remota causa sed proxima spectator).

Statutory Provisions:

• Indian Contract Act, 1872:
  • Section 73 deals with compensation for loss or damage caused by breach of contract which naturally arose in the usual course of things.
  • Section 74 discusses compensation for breach of contract where the parties agree on the amount of compensation.

Cases Illustrating Proximate Cause:

• Scott v Shepherd (1773): Demonstrates liability for direct harm caused by a wrongful act.
• Haynes v Harwood (1935): Establishes liability even for indirect harm if reasonably foreseeable.

Tests for Determining Liability:

• Reasonable Foreseeability Test:
  • Focuses on whether a reasonable person could foresee the consequences.
  • Applies the doctrine of in jure non remota causa sed proxima spectator.
  • Relevant statutory provision: Indian Contract Act, 1872 – Section 73.
• Directness Test:
  • Considers liability for all direct consequences of a negligent act.
  • Reflects the principle of Res Ipsa Loquitur (things speak for themselves).
  • Relevant case: Re Polemis and Furness, Withy & Co. Ltd (1921).

Shift in Approach:

• Wagon Mound case (Overseas Tankship v Morts Dock): Shifted towards a reasonable foreseeability approach.
  • Liability limited to reasonably foreseeable injuries.
  • Rejects broader liability principle of Re Polemis.
  • Relevant statutory provision: Indian Penal Code, 1860 – Sections 299 and 300 (Culpable Homicide and Murder).

Application of Foreseeability in Specific Cases:

• Hughes v Lord Advocate (1963): Foreseeability determines liability, even for unforeseen circumstances resulting from a wrongful act.
• Doughty v Turner Manufacturing Company Limited (1964): Unforeseeable consequences may absolve liability.

Principle of Causation:

• Emphasizes the direct link between the wrongful act and the resulting harm.
• Factors in foreseeability and immediate consequences.
• Relevant statutory provision: Indian Penal Code, 1860 – Section 304A (Causing Death by Negligence).

Interpretation and Application of Legal Precedents:

• Analyze cases like Scott v Shepherd, Haynes v Harwood, and Wagon Mound to understand how courts interpret and apply the principle of remoteness of damage.
• Consider the evolution of legal principles through landmark judgments.

Limitations and Exceptions:

• Cases like Hughes v Lord Advocate highlight exceptions to foreseeability and causation.
• Discuss nuances where unforeseeable events may still lead to liability based on the circumstances.

Comparative Analysis:

• Compare and contrast Indian and international approaches to remoteness of damage.
• Evaluate the impact of legal doctrines on liability and compensation in different jurisdictions.

Defamation

Definition:Injury to reputation without lawful excuse.

• Winfield’s definition: Publication of a statement lowering a person’s esteem in the eyes of society or making them shun or avoid that person.
• Importance of reputation as property, emphasized in Dixon v Holden.

Civil and Criminal Nature:

• Defamation is both a civil wrong (tort) and a criminal offense.
• Remedies include criminal proceedings or civil action for damages.

Balancing Freedom of Speech and Reputation:

• Defamation law balances freedom of speech with the right to reputation.
• Constitutes a reasonable restriction on freedom of speech under Article 19(2) of the Indian Constitution.

Types of Defamation in English Law:

• Libel: False and defamatory statement in a permanent form (writing, print, pictures, etc.).
  • Example: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934).
• Slander: False and defamatory verbal or oral statement in a transient form.
  • Distinctions between libel and slander: addressed to eyes vs. ears, permanent vs. transient form, actionable per se vs. proof of actual damage.

Indian Perspective on Defamation:

• No distinction between libel and slander in Indian law.
• All forms of defamation are treated alike under Sections 499 and 500 of the Indian Penal Code.

Statutory Provisions:

• Indian Penal Code, Sections 499 and 500: Define defamation as a criminal offense punishable by imprisonment or fine.
• Civil remedies for defamation available through tort law.

Cases and Precedents:

• Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934): Illustrates libel in a film context.
• Importance of intention and form of communication in determining defamation.

Elements of Defamation:

• False statement: Must be untrue or misleading.
• Publication: Must be communicated to a third party.
• Damage to reputation: Must result in harm to the person’s reputation.

Defenses Against Defamation:

• Truth: Justification if the statement is true.
• Privilege: Statements made in certain contexts (e.g., legal proceedings, public interest) may be privileged.
• Fair comment: Opinion or criticism based on facts without malice.

Impact of Defamation Laws:

• Protects individuals’ reputations and encourages responsible speech.
• Balances individuals’ rights with societal interests in free expression.

Essentials of defamation

Defamatory Nature of Words:

• Words must lower the plaintiff’s reputation in the eyes of society.
• Intent to defame is not necessary; the effect on reputation matters.
• Innuendo can reveal latent defamatory meanings.
  • Example: Cassidy v Daily Mirror Newspapers Ltd (1929), Tolley v Fry & Sons Ltd (1931).

Reference to Plaintiff:

• The defamatory statement must refer to the plaintiff.
• Defendant’s intent to defame is immaterial.
• Halton & Co. v Jones (1910) case illustrates liability based on defamation facts, not intent.
• Defamation of a class of persons is not actionable unless specific individuals are targeted.

Publication of Defamatory Words:

• Words must be made known to at least one person other than the plaintiff.
• Communication to the plaintiff alone does not constitute defamation.
• T J Ponnen v M.C. Verghese (1970) case demonstrates publication requirement.
• Exception: If a third party wrongfully reads a letter meant for the plaintiff, it may not count as publication.

Statutory Provisions:

• Indian Penal Code, Sections 499 and 500: Define defamation and its criminal consequences.
• Evidence Act, Section 122: Addresses admissibility of communications meant to be confidential.

Defenses to Defamation

I. Justification or Truth

• Definition: Proving the truth of the statement as a defense against defamation.
• Case Example: Radheyshyam Tewari v Eknath (1985) – Failure to prove the truth of defamatory statements resulted in liability.
• Statutory Reference: Indian Penal Code, Sections 499 and 500.

II. Fair Comment

• Definition: Making a fair and honest comment, especially on matters of public interest.
• Essentials of Fair Comment:
  1. Expression of opinion, not assertion of facts.
  2. Fairness and honesty in the comment.
  3. Public interest in the matter was commented upon.
• Case Example: McQuire vs. Western Morning News Co. (1903) – Criticism deemed as fair comment.
• Statutory Reference: No specific statute; based on common law principles.

III. Privilege

• Definition: Certain occasions where free speech rights outweigh defamation claims.
• Types of Privilege:
  • Absolute Privilege: No liability even for false or malicious statements on certain occasions like parliamentary or judicial proceedings.
  • Qualified Privilege: Limited immunity based on good faith and without malice.
• Case Example: RK Karanjia versus Thackersey 1970 – Rejected qualified privilege due to malice in publication.
• Statutory Reference: Indian Constitution, Articles 105 and 194 for absolute privilege; no specific statute for qualified privilege.

Additional Case Example:

• Ram Jethmalani v/s Subramaniam Swamy 2006: Disagreements during legal proceedings led to defamation charges, highlighting the limitations of claiming privilege when malice is evident.

Vicarious Liability

Vicarious liability refers to a person’s responsibility for the actions of another. Here’s a breakdown of its basis and essential elements:

Basis of Vicarious Liability

1. Respondeat Superior: This Latin term means ‘let the superior be liable.’ It holds that the employer or principal is liable for the actions of their employees or agents.
2. Qui facit per alium facit per se: Translated as ‘he who acts through another is deemed in law to act himself,’ this principle means that a person is responsible for the actions of someone they’ve entrusted with work.

Essentials for Vicarious Liability

1. Existence of a Relationship

• This includes relationships like Principal and Agent, Master and Servant, or Partners in a Partnership Firm.

1. Wrong Must Be Done in the Course of Employment

• The act causing harm must occur within the scope of the employment or agency.

Principal and Agent Relationship

• The principal is liable for the wrongful acts of the agent if:
  1. The act was done in the course of employment, even if not authorized or approved by the principal.
  2. If the act was beyond the scope of agency, it must have been expressly authorized or ratified.

Case Example: In Lloyd vs. Grace Smith And Company, the solicitor’s firm was held liable for the actions of its clerk who acted within the apparent authority of the principal.

Master-Servant Relationship

• The master is liable for the wrongful acts of the servant if:
  1. The act was done by the servant.
  2. The act was done in the course of employment.

Case Example: In Limpus vs. London Omnibus Co., the employer was held liable for an accident caused by the driver as it occurred during the course of his service and for the employer’s purposes.

Servant vs. Independent Contractor

• A servant works under the direction and control of the master, while an independent contractor works under a contract for service and is not subject to the same control.
• The master is liable for the servant’s actions but not for those of an independent contractor.

Example: A car driver is a servant, so if they cause an accident, the owner is liable. However, if a taxi driver (an independent contractor) causes an accident, the owner is not liable.

The doctrine of common employment is an exception to the principle of vicarious liability. It posits that an employer cannot be held liable for the injuries of a servant caused by the negligence of a fellow servant.

Key Points

1. Introduction and Purpose

• The doctrine was introduced in English law as a defense against vicarious liability.
• It aimed to limit the employer’s liability for injuries caused to an employee by a co-worker’s negligence.

2. Case Example: Priestly vs. Fowler (1837)

• Facts: The plaintiff, a servant, was injured due to the breaking down of an overloaded carriage managed by another servant of the same master.
• Judgment: The court held that the master was not liable because both the wrongdoer and the injured person were servants of the same master.
• Reasoning: The judgment intended to limit the master’s liability to actions only within the course of employment.

3. Criticism and Limitation

• The doctrine faced criticism for being unfair to employees.
• Over time, its scope was restricted through legislation and judicial decisions.

4. Abolishment

• The defense of common employment was ultimately abolished by the Law Reform (Personal Injuries) Act, 1948.

Vicarious Liability of the State

Position in England

• Historical Rule: The common law principle “King can do no wrong” (Res Non-Potest Peccare) meant the Crown was immune from civil and criminal liability. The state could not be sued for the wrongful acts of its servants during their employment.
• Crown Proceedings Act 1947: This act modified the rule, making the state liable for torts committed by its servants.

Position in India

• Article 300 of the Indian Constitution: This article allows the Union of India or State Governments to sue and be sued like any ordinary person. This provision, effective from 1950, replaced similar provisions under Article 176 of the Government of India Act, 1935, and Articles 35 and 65 of the Government of India Acts 1915 and 1858, respectively.

Types of State Functions

1. Sovereign Functions:

• Functions such as defense, maintaining armed forces, preserving peace, conducting war, and diplomacy.
• The state is not liable for wrongful acts committed by its employees while performing these functions.

2. Non-Sovereign Functions:

• All other functions of the state.
• The state can be held liable for wrongful acts committed by its employees during the performance of non-sovereign functions.

Case Laws

1. Peninsular and Oriental Steam Navigation Company vs. Secretary of State for India (1868):

• Facts: An accident occurred when a government dockyard worker dropped heavy iron rods, causing noise that spooked a horse pulling a carriage.
• Held: The Secretary of State was liable as the maintenance of the dockyard was a non-sovereign function.

2. Nobin Chandra Dey vs. Secretary of State for India:

• Facts: The plaintiff claimed the government breached a contract for a license to sell ganja.
• Held: The High Court ruled no breach of contract and, even if there was, the act was a sovereign function, exempting the state from liability.

3. State of Rajasthan vs. Vidyawati (1962):

• Facts: A government jeep driver caused a fatal accident.
• Held: The Supreme Court held the state liable, asserting that in a welfare state, the government should not be immune from liability for tortious acts of its employees.

4. Kasturi Lal vs. State of Uttar Pradesh (1965):

• Facts: The plaintiff’s gold was seized by the police and later stolen by a police officer.
• Held: The Supreme Court ruled the state was not liable as the seizure was a sovereign function.
• Note: Subsequent rulings have diminished the practical force of this decision.

5. State of M.P. vs. Chironji Lal (1981):

• Facts: A lathi charge by the police resulted in property damage.
• Held: The court deemed the regulation of processions and maintenance of law and order as sovereign functions, exempting the state from liability.

6. N. Nagendra Rao vs. State of A.P. (1994):

• Held: The Supreme Court ruled that the state is liable for the negligent acts of its officers, and the doctrine of sovereign immunity is diluted, applying only in rare cases.

Sovereign Immunity and Fundamental Rights

1. Bhim Singh vs. State of Jammu and Kashmir (1986):

• Held: The court awarded Rs 50,000 for the police’s authoritarian actions against the appellant.

2. Rudal Shah vs. State of Bihar (1983):

• Held: The court ordered Rs 30,000 compensation for Rudal Shah’s wrongful and illegal detention for 14 years.

3. Saheli vs. Commissioner of Police (1990):

• Held: The court awarded Rs 75,000 compensation for a child’s death due to police assault, recoverable from the responsible officials.

4. Nilabati Behera vs. State of Orissa (1993):

• Held: The court directed the state to pay Rs 1.5 lakhs for the custodial death of Nilabati Behera’s son, establishing the state’s liability in custodial death cases.

Strict and Absolute Liability

Principle of Strict Liability:The principle of strict liability evolved in the case of Rylands v. Fletcher (1868). It states that any person who keeps hazardous substances on their premises will be held responsible if such substances escape and cause damage.

Case Summary: Rylands v. Fletcher

• Facts: The defendant had a reservoir constructed over his land by independent contractors. There were old, disused shafts under the site of the reservoir, which the contractors failed to observe and block. When the reservoir was filled with water, it burst through the shafts, flooding the plaintiff’s coal mines on adjoining land. The defendant was unaware of the shafts and had not been negligent.
• Judgment: Despite the lack of negligence, the defendant was held liable. Blackburn, J., stated that a person who brings anything likely to do mischief if it escapes onto their land must keep it at their peril. If it escapes, they are prima facie answerable for all damage caused.

Essentials for the Rule of Strict Liability

1. Dangerous Thing: A thing likely to do mischief if it escapes. Examples include water (as in Rylands v. Fletcher), gas, electricity, vibrations, yew trees, sewage, flag-poles, explosives, noxious fumes, and rusty wire.

2. Escape: The thing causing the damage must escape from the defendant’s control to an outside area.

• Cases:
  • Crowhurst v. Amersham Burial Board: Branches of a poisonous tree overhanging a neighbor’s land led to the poisoning of cattle. The defendant was held liable.
  • Ponting v. Noakes (1849): Plaintiff’s horse ate poisonous leaves after intruding on the defendant’s property. The defendant was not held liable as the horse’s death resulted from wrongful intrusion.
  • Read v. Lyons: An employee injured by an explosion within the defendant’s ammunition factory. The court ruled that there was no “escape” of the dangerous thing outside the premises.

3. Non-natural Use of Land: The use must be extraordinary or special, increasing danger to others, and not a common use of the land.

• Cases:
  • Sachacki v. Sas: Fire in a house due to ordinary use of a fireplace was deemed natural use.
  • Noble v. Harrison: Trees (non-poisonous) growing on one’s land were considered natural use.

Act Done by an Independent Contractor

An employer is not typically liable for wrongful acts by an independent contractor. However, in Rylands v. Fletcher, the defendants were held liable despite the involvement of independent contractors. Case: T.C. Balakrishnan Menon v. T. R. Subramanian-An explosive coconut shell caused injuries during a fireworks display. The court held the appellants liable under strict liability, despite the use of an independent contractor.

Exceptions to the Rule of Strict Liability

1. Plaintiff’s Own Default:

• Ponting v. Noakes (1849): Plaintiff’s horse died after entering the defendant’s property. The defendant was not liable.

2. Act of God:

• Nichols v. Marsland: Extraordinary rainfall caused embankments to break, flooding the plaintiff’s land. The defendant was not liable.

3. Consent of the Plaintiff:

• Carstair v. Taylor: Plaintiff and defendant shared benefit from stored water. The defendant was not liable when the water leaked.

4. Act of Third Party:

• Box v. Jubb: Defendant’s reservoir overflow caused by a stranger blocking a drain. The defendant was not liable.

5. Statutory Authority:

• Green v. Chelsea Waterworks Co.: Defendant company had a statutory duty to maintain water supply. A main burst without negligence, and the company was not liable.

General Defenses Against Strict Liability

1. Volenti Non Fit Injuria: Consent to risk
2. Plaintiff is the Wrongdoer
3. Inevitable Accident
4. Act of God (Vis Major)
5. Private Defense
6. Mistake
7. Necessity
8. Statutory Authority

Absolute Liability

Introduction:

• The rule of absolute liability is similar to strict liability but without any limitations or exceptions.
• This rule makes an individual completely liable for any fault.
• The Supreme Court of India laid down the rule of absolute liability in the cases of C. Mehta v. Union of India (1987) and the Bhopal Gas Leak case (1989).
• The Supreme Court expanded the scope of the rule from Rylands v. Fletcher, making it much broader.

Difference between Strict Liability and Absolute Liability:

• Scope of Liability:
  • Absolute liability applies only to enterprises engaged in hazardous or inherently dangerous activities. Strict liability can apply to other industries as well.
• Escape of Dangerous Substances:
  • Under absolute liability, it is not necessary for a dangerous substance to escape the premises for liability to be imposed. It applies to injuries both inside and outside the premises.
• Exceptions:
  • Absolute liability does not have exceptions, while strict liability has several exceptions.
• Use of Land:
  • Strict liability applies to the non-natural use of land. Absolute liability applies even to the natural use of land if a dangerous substance escapes.
• Extent of Damages:
  • Damages are determined based on the magnitude and financial capacity of the enterprise. The enterprise must ensure the highest standards of safety and security.

Supreme Court’s View:

• The Supreme Court found the rule of Rylands v. Fletcher unsuitable for modern times, given the advancements in science and technology.
• The rule of absolute liability was evolved to meet the needs of contemporary society and economy.
• The Court emphasized that law must evolve to address new situations and challenges.

Important Cases:

1. M.C. Mehta v. Union of India (1987):

• Facts: In December 1985, oleum gas leaked from Shriram Foods and Fertilisers Industries in Delhi, causing the death of an advocate and affecting several others.
• Case: A writ petition under Article 32 of the Constitution was filed as Public Interest Litigation.
• Judgment: The Supreme Court held that it was not bound by the 19th-century rule of English law and could evolve a new rule suitable for India’s current social and economic conditions. The rule of absolute liability was established.
• Key Points: The Court stated that enterprises engaged in hazardous activities owe an absolute and non-delegable duty to the community. The measure of compensation must correlate with the enterprise’s capacity, ensuring a deterrent effect.

2. Bhopal Gas Leak Disaster (Union Carbide Corporation v. Union of India, 1989, 1992):

• Facts: On the night of December 2-3, 1984, methyl isocyanate gas leaked from the Union Carbide India Limited pesticide plant in Bhopal, causing over 3,000 deaths.
• Case: Several suits were filed in the United States and India. The Union of India, under the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, filed a suit in the US District Court, which was dismissed on the grounds of forum non conveniens. A suit was then filed in the District Court of Bhopal.
• Judgment: The Supreme Court ordered Union Carbide Corporation to pay $470 million (₹750 crores) to the Union of India in full settlement of all claims. Civil proceedings were transferred to the Supreme Court, and criminal proceedings related to the disaster were quashed. The compensation amount and the withdrawal of criminal cases were later contested.

3. Indian Council for Environment Legal Action v. Union of India (1996):

• The Supreme Court imposed the principle of absolute liability from the M.C. Mehta case, holding that once an activity is hazardous, the person conducting it is liable for any loss caused, regardless of whether reasonable care was taken.

Nuisance

Definition and Origin

• Etymology: Derived from the Old French word “nuire” / French word ‘nutre’ meaning “to cause harm, hurt, or annoy”. Its Latin origin is “nocere” meaning “to cause harm”.
• Ordinary Meaning: Anything that annoys, hurts, or is offensive. Nuisance is a continuing wrong, requiring a continuous period and not momentary occurrence.

Definitions of Nuisance

• Salmond: Causing or allowing, without lawful justification, the escape of any deleterious thing from one’s land into another’s possession (e.g., water, smoke, fumes, noise).
• Winfield: Unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.
• Pollock: Wrong done by unlawfully disturbing a person in the enjoyment of their property or a common right.
• Stephen: Anything done to hurt or annoy the lands, tenements of another, not amounting to trespass.

Types of Nuisance

1. Public Nuisance

• Legal Coverage: Defined under Section 268 of the Indian Penal Code.
• Definition: An act or illegal omission causing common injury, danger, or annoyance to the public or persons using a public right.
• Characteristics: Crime rather than a civil wrong, requires special damage or injury for individual civil action.

1. Example Case: Dr. Ram Raj Singh v. Babulal (1928) – Plaintiff’s patients were inconvenienced by a defendant’s mill, considered private nuisance due to special damage.
2. Private Nuisance

• Definition: Unauthorized use of one’s property causing damage to another’s property or interference with proprietary rights.
• Legal Coverage: Covered under Tort Law.
• Characteristics: May involve obstruction to light, wrongful escape of gases, noise, water, etc.

1. Essential Elements:

• Right to Enjoy Land: Plaintiff must have a right over the land.
• Unreasonable Interference: Must cause substantial interference, not mere inconvenience.
• Continuous Period: Nuisance should be ongoing, not temporary.

1. Example Cases:

• Radhe Shyam vs. Guruprasad (1978) – Noise from a mill affecting health deemed a nuisance.
• Helen Smelting Co. v. Tipping (1865) – Fumes damaging trees, considered a private nuisance.

Sensitiveness of Plaintiff

• Reasonable acts do not become unreasonable due to the plaintiff’s sensitivity.
  Example Case: Robinson v Kilvert (1889) – Factory heat damaged sensitive paper, not considered nuisance.

Continuous Wrong

• Nuisance is a continued wrong, casual inconveniences not generally considered.
  Example Case: Bolton vs. Stone – Isolated cricket ball incident not regarded as nuisance.

Defenses Against Nuisance

1. Prescription

• Right acquired through long and continuous use (20 years in India, as per Limitation Act and Easements Act).

1. Example Case: Mohini Mohan v. Kashinath Roy – Right of doing Kirtan not an easement but can be acquired by custom.
2. Statutory Authority

• Acts authorized by statute can be a defense.

Defenses That Don’t Work

1. Act of Others: Combined actions causing nuisance.
   Example Case: Lambton v. Mellish – Noise from competing merry-go-rounds.
2. Public Good: Public benefit does not justify individual nuisance.
3. Reasonable Care: Careful actions not a defense.
4. Plaintiff Coming to Nuisance: Moving into a nuisance area does not prevent action.

Remedies for Nuisance

1. Injunction: Judicial order to stop or prevent a nuisance act.
2. Damages: Compensation for the aggrieved party.
3. Abatement: Self-help to terminate the nuisance (requires notice unless immediate danger).

Case Laws

1. Ball v. Ray (1873) – Noise from horses in a stable deemed unreasonable.
2. Campbell v. Paddington Corporation (1911) – Obstruction of view causing loss of profits held as nuisance.
3. Malton Board of Health v. Malton Manure Co. – Offensive smells from trade are considered a nuisance.
4. Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandal – Hurt to religious sentiments not actionable.
5. Soltau v. De Held (1851) – Continuous bell ringing by a chapel was a public nuisance.
6. Hollywood Silver Fox Farm Ltd. vs. Emmett (1936) – Malicious disturbance of breeding farm held as nuisance.
7. Dattamal ChiranjiLal v. Lodh Prasad (1960) – Injunction awarded against grinding mill causing inconvenience.

Trespass to the Person

Definition:Trespass refers to an act exceeding the limits established by law, involving intentional, unreasonable interference with a person’s property or person. It is both a civil and criminal wrong.

Types of Trespass

1. Trespass to Person
2. Trespass to Land
3. Trespass to Goods

Trespass to Person

Definition

• Trespass to person involves the wrongful apprehension or harm to an individual’s body with malafide intention.
• It is actionable per se (without proof of damage).

Types of Trespass to Person

1. Battery
2. Assault
3. False Imprisonment

1. Battery

• Definition: The intentional and unpermitted application of force to another person without lawful justification.
• Essential Elements:
  • Use of Force: Any force, even if trivial and causing no harm, constitutes battery.
    • Example: Pulling a chair from under someone as they are about to sit.
  • Without Lawful Justification: Intentional use of force without a legal reason.
    • Example: Pulling a drowning man out of water (lawful justification).
  • Case Laws:
    • Leigh v. Gladstone (1909): Forcibly feeding a hunger-striking prisoner to save his life is not trespass.
    • Stanley v. Powell (1891): Accidental harm is not actionable unless willful or negligent.

2. Assault

• Definition: An act by the defendant causing reasonable apprehension in the plaintiff of an imminent battery.
• Test of Assault: Whether the plaintiff has a reasonable fear of battery.
  • Assault generally precedes battery, but battery can occur without assault.
• Prima Facie Ability: The defendant must have the apparent ability to inflict harm.
  • Example: A person shouting threats from a moving train does not constitute assault if they cannot carry out the threat.
• Case Law:
  • Stephens v. Myers (1830): Defendant advancing towards the Chairman with a clenched fist, but stopped before reaching him, was liable for assault.

3. False Imprisonment

• Definition: Total restraint of an individual’s liberty without lawful justification.
• Essential Elements:
  • Total Restraint: Complete deprivation of liberty to move beyond certain limits.
  • Without Lawful Justification.
• Offense under IPC: Can be wrongful restraint (Sec. 339) or wrongful confinement (Sec. 340).
• Means of Escape: If there is a means of escape, it is not false imprisonment.
• Case Law:
  • Birds v. Jones (1845): Partial obstruction does not constitute imprisonment; a person must be completely confined.

Defenses Against Trespass to Person

1. Consent of Plaintiff: Mutual understanding or consent negates trespass.
2. Contributory Negligence: Plaintiff’s negligence can mitigate the defendant’s liability.
3. Self-Defense: Proportional force used in self-defense is justified.
4. Statutory Authority: Actions compelled by law (e.g., search and seizure) are not trespass.
5. Preservation of Public Peace: Actions to maintain public order are justified.

Remedies for Trespass to Person

1. Action for Damages: Compensation for wrongful detention, including injury, disgrace, and humiliation.
2. Habeas Corpus: Expedient remedy for release from wrongful detention, available through the Supreme Court (Article 32) or High Court (Article 226) of the Indian Constitution.
3. Self-Help: Use of reasonable force to escape detention without waiting for legal action.

Trespass to Property

Trespass means an unlawful act committed against the property of another person and also against another person.

Trespass to Property

1. Trespass to Land (Immovable property)
2. Trespass to Movable property

Trespass to Land

• Definition: Interference with the possession of land without lawful justification.
• Land: Includes soil, any fixtures permanently attached to the land (houses, walls, poles, etc.), the airspace above the land, and the ground below up to a reasonable height and depth.
  • Maxim: “Cujus est solum ejus est usque ad coelum” (Whose is the soil, his is also that which is above it). This means ownership includes anything below or above that portion which can be privately owned.
• Nature: Trespass is a wrong against possession rather than ownership. The person in actual possession can sue even if they are not the owner.
• Interference: Trespass includes interference with the possession or enjoyment of land, which can be by a person or a material object.
• Types:
  • Wrongful entry.
  • Placing things on land.
  • By an animal.
  • Remaining on land after authorization is revoked.

Key Points:

• Trespass is a direct interference and is actionable per se (no need to prove damage).
• Winfield’s Example: Planting a tree in another’s land is trespass; roots or branches over the land is a nuisance.

Essentials of Trespass to Land

1. Unauthorized Entry: Includes unauthorized entry of material objects.

• Case: Gregory v. Piper: Rubbish of defendant went into plaintiff’s property, held as trespass.
• Case: Abdul Gani v. Sadu Ram and Others: Discharge of filthy water onto plaintiff’s land was trespass.

2. Possession by Plaintiff: Land must be in actual/constructive possession of the plaintiff.

• Case: Kelsen v. Imperial Tobacco Co (1957): Trespass by an advertising board projecting into plaintiff’s property.
• Case: Bulli Coal Mining Co v. Osborne (1899): Trespass to subsoil by mining.
• Case: Bernstein v. Skyviews (1978): Aerial photographs from high above were not trespass as plaintiff had no reasonable use of airspace at that height.

3. Voluntary and Intentional Entry: Trespass is an intentional tort requiring deliberate entry, not necessarily an intention to trespass.

• Case: Basely v. Clarkson: Mistakenly mowing neighbor’s land was still trespass.
• Case: Smith v. Stone (1647): Involuntary entry (carried by force) is not trespass.

Trespass Ab Initio

• Abuse of Authority: Using lawful authority unlawfully makes the initial act of entry trespass.
  • Case: Elias vs. Pasmore (1934): Unlawful seizure of items during lawful arrest was trespass.
  • Case: Six Carpenters Case (1610): Nonpayment was nonfeasance, not sufficient for trespass ab initio.
  • Conditions: Authority must be given by law, and abuse must be a positive wrongful act.
  • Case: Perera vs. Vandiyar: Going beyond the purpose of entry amounts to trespass.

Remedies for Trespass

1. Reentry: The person entitled to possession can use reasonable force to remove a trespasser.
2. Action for Ejectment/Expulsion: Recover property within six months of dispossession.
3. Action for Mesne Profit: Claim compensation for loss during the period of dispossession.
4. Distress Damage Feasant: Seize trespassing animals/chattel until compensation is paid.

Defenses

1. License: Permission from the possessor to be on the land; revocation leads to trespass ab initio.
2. Jus Tertii: Proving possession by a third party.
3. Necessity: Committing trespass due to an urgent need.

• Case: Esso Petroleum Co v. Southport Corporation (1956): Trespass to save ship and crew.

Trespass to Movable Property

• Definition: Direct physical interference with movable property in the plaintiff’s possession.
• Nature: It is a wrong against the right of possession, whether physical or constructive.

Key Points:

• Case: Armory v. Delamirie (1721): Boy recovered full value of a jewel from jeweler.
• Case: Kirk v. Gregory (1876): Mistaken belief for safety resulted in trespass to jewelry.
• Defenses: Lawful justification and inevitable accident.
  • Case: National Coal Board v. Evans (1951): No liability for damage caused without fault.

Comparison with Other Torts:

• Detinue: Wrongful detention of goods, different from trespass as it involves possession by the defendant.
• Conversion: Serious interference with goods leading to the owner being deprived of their use.
  • Case: Richardson v. Atkinson (1723): Mixing water with wine in a cask was converted.

Differences:

• Trespass to Goods: Direct interference.
• Conversion: Degree of interference must be serious, potentially requiring payment of full value.