Law of Tort

LAW OF TORTS

NATURE AND DEFINITION

The word 'tort' is derived from the latin word 'tortum'. It means 'to twist'. Thus, it can be called a twisted or crooked conduct. Generally, it consists of certain act done without just cause or excuse. Few important definitions of 'tort' are summarized hereunder:-

1. Section 2(m) of Limitation Act, 1963: "Tort' means a civil wrong which is not exclusively a breach of contract or breach of trust'.

2. Salmond: It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or breach of trust or other merely equitable obligation."

3. Winfield: Tortious liability arises from the breach of duty primarily fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages.'

4. Fraser: It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.'

There is no precise or scientific definition of tort. From the above definitions we may come across following propositions:-

1. Tort is a civil wrong;

2. Every civil wrong is not a tort.

There are other civil wrongs, such a breach of contract, breach of equitable obligation breach of trust etc, which do not fall under the category of tort.

Tort is a civil wrong and such civil wrong arises when a person breaches a legal duty owed towards another.

Supreme Court in Jayalakshmi Salt Works Pvt. Ltd. v. State of Gujarat, (1994) 4 SCC 1, held that 'tort" means "breach of duty leading to damage'. The basic ingredients of tort are injury and damage.

Legal duty: It is legally recognized and imposed by law. It arises when a person is required to act in a particular manner. It is created either by the statute or by the decisions of the courts.

→ According to Salmond every right involves a legal duty and duty is legal not because it is legally enforced but because it is legally recognized.

Therefore, following can be said to be essentials of definition of tort:-

• Tort is a civil wrong
• The wrong is redressible by an action for unliquidated damages
• Such civil wrong is neither a breach of contract, breach of trust nor breach of equitable obligation

Unliquidated damages: In this kind of damages the compensation is not pre-determined or pre-fixed by the parties. It is left to the discretion of the court. In case of breach of contract the damages can be liquidated (pre-fixed by parties) or unliquidated, but in case of tort there is no possibility of liquidated damages.

Ubi jus ibi remedium:

It means 'where there is right, there is remedy'. This maxim is the foundation of the law of torts. It is a fundamental principle that no wrong can remain without a remedy.

Right without a remedy is toothless. The court in Ashby v. White recognized this principle and held that if a person has a right he must have the means to vindicate and maintain it.

Basis of Torts

Law of Torts is based on English Common Law. It is basically the product of judicial decisions.

Supreme Court in Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC552, held that in absence of statutory law with respect to torts common law principles evolved in England may be applied in India.

Following are the essentials of tort

• Some act or omission on the part of the defendant.
• Such act or omission should result in violation of legal right of the plaintiff (injuria)
• Such act or omission is a breach of duty of defendant which is imposed on him by law
• Both the positive act and negative act (omission) will make a person liable in torts. The act must be a wrongful act or omission.
• If there is a legal duty upon any person to do or refrain from doing any act and he violates such duty then also he is made liable in torts.
• Such wrongful act or omission should not be merely moral or social wrong. It must be recognized by the law.
• The plaintiff has to prove that he has suffered legal damage as a result of act or omission of the defendant. Unless there is any violation of legal right of plaintiff there cannot be any action in tort.

Following two maxims govern this principle:-

1. Injuria sine damno.

2. Damnum sine injuria

Injuria means violation of right conferred by law and Damnum means substantial harm.

Injuria sine damno

The maxim injuria sine damno means violation of legal right without any harm/damage to the plaintiff.

There are two categories of torts:-

1. Torts which are actionable fer se (ie. actionable without proof of damage)

2. Torts which are actionable on proof of some damage

This maxim covers the first case. The essence of action in tort is violation of legal right. Therefore, if there has been injuria i.e. violation of legal right but there is no damage or loss caused to the plaintiff then also the plaintiff can sue for action in tort.

In Ashby versus White, the plaintiff was a qualified voter but was wrongfully denied voting in elections by the defendant (returning officer). Although the candidate of the plaintiff won but still the plaintiff was allowed to recover damages because his legal right was violated.

In Bhim Singh v. State of J & K, AIR 1986 SC 494, the petitioner who was M.L.A. was wrongfully detained by the authorities and as a consequence he could not attend Assembly Session. The Supreme Court recognized his legal right and awarded compensation to him.

In case of injuria sine damno the loss suffered is not relevant for the purpose of instituting an action but it may be relevant in awarding damages.

Damnum sine injuria

This maxim means plaintiff has suffered damage but there is no violation of his legal rights. This situation arises when one person exercises his legal right and damage is suffered by another.

In Grant v. Australian Knitting Mills, the court held that mere fact that a man is injured gives no claim in law, so long as the other party is exercising his legal right.

In Gloucester Grammar School case the defendant sets up a rival school and as a result the plaintiff had to reduce the fee because of competition. The court did not allow any remedy to the plaintiff because the defendant had not violated any legal right of the plaintiff. Defendant was within his right to open a rival school. The injury suffered by the plaintiff was not due to violation of any legal right. 

In Mogul Steamship Co. v. McGregor Gow and Co., a number of steamship companies drove the plaintiff out of business by combining and offering reduced freight. The court held that the plaintiff had no cause of action because defendants employed lawful means to reduce freight.

In Chesmore v. Richards, plaintiff was using the water stream for his mill. This water came from an underground stream. Defendants dug a well on their lands and the water from that stream was pumped into that well. The court held that defendants were not liable.

The court in Mayor of Bradford Corporation v. Pickles, held that even if the harm has been caused maliciously, no action will lie unless the plaintiff can prove that he has suffered injuria.

Law of Torts or Law of Tort?

The debate is centered around the question which has been posed by Salmond. Does law of torts consists of fundamental general principles that it is wrongful to cause harm to other persons in absence of specific justification or does it consists of number of specific rules prohibiting certain kind of harmful activity?

Law of Tort means every wrongful act for which there is no justification should be treated as tort. Law of Torts means there are specific number of wrongs and beyond that liability cannot arise.

Winfield was the supporter of first theory. According to him if a wrong happens without justification the person will be liable. Winfield's book is titled 'Law of Tort'.

Salmond was the supporter of second theory. According to him the liability arise only when the wrong falls in one of the specified tort. This theory is also known as 'pigeon hole theory'. Salmond's book is titled 'Law of Torts',

Mental element in tort:

In many cases of torts the mental element is relevant to affix the liability. For example in torts like assault, battery, malicious prosecution, state of mind of the person is relevant.

There are certain other areas where the mental element is irrelevant. In such cases the liability arises even without intention. For example in torts like conversion, defamation, vicarious liability mental element is irrelevant.

Malice in law: It means a willful act done without legal excuse of justification. A wrongful intention is presumed in case an unlawful act is done without just excuse. [Smt. S.R. Venkatraman v. Union of India, AIR 1979 SC 49]

Malice in fact: It means evil or improper motive. When the defendant does any act with improper motive, ill-will or maliciously then it is called malice in fact. Generally malice in fact is irrelevant in the law of torts.

GENERAL DEFENCES

When an action is brought in tort, the defendant may avoid his liability by taking several defences. Defences can be categorized into two categories:

1. General defences.
2. Specific defences

Specific defences are specific to certain kind of torts while General defences are common to several forts.

General defences which will be discussed here are:

1. Volenti non fit injuria
2. Private Defence
3. Act of God
4. Necessity
5. Mistake
6. Statutory Authority
7. Plaintiff - the wrongdoer
8. Acts causing slight harm
9. Inevitable Accident

Volenti non fit injuria

It is also known as defence of consent. When a person consents to the infliction of certain harm he cannot bring an action for the loss or harm.

This is based on the principle that every man is best judge of his own interest and if he voluntarily agrees to suffer any harm then he will not be allowed to complain, tant stones

The consent to suffer harm may be express or implied.

In Hall v. Brooklands Auto Racing Club, there was a motor race going on and two cars collided. As a result of collision one of the car was thrown amongst the spectator. The spectator was injured. It was held that the plaintiff impliedly took the risk of the injury.

In Padmavati v. Dugganaika, two strangers took lift in a jeep. Suddenly one of the bolts fixing the wheel of the jeep gave way and jeep toppled. It was held that driver or master could not be held liable because two strangers voluntarily got into jeep and hence principle of volenti non fit injuria will apply and secondly it was sheer accident.

Essential conditions

Following are the essential conditions to invoke the defence of volenti non fit injuria.

1. Consent should be free: The consent should not be obtained from fraud, force, coercion, undue influence etc.

2. Mere knowledge is not enough: In order to successfully plead this defence the defendant has to prove that:-

a. The plaintiff was aware of the harm.

b. Knowing the same he agreed to suffer it.

The mere knowledge of the risk (volenti non fit injuria) is no defence. Merely because the plaintiff knew that there is a harm that does not mean he has consented to suffer it.

In Smith v. Charles Baker and Sons (stone quarry case), plaintiff was employed by the defendant in a stone quarry. Large chunks of rocks were being conveyed from one side to another by help of cranes. One of the stone fell an injured the plaintiff working there. It was held by the court that there is a mere knowledge of risk and there was no consent. Therefore, maxin volenti non fit injuria was not made applicable.

Limitations on the scope of this doctrine

1. Rescue cases: When a person takes risk voluntarily to rescue someone from eminent danger posed by the defendant itself then that person cannot be met with the defence of volenti non fit injuria.

In Haynes v. Harwood, the defendant left two horse van unattended. Horses went berserk and started running on streets. The plaintiff, who was police constable, saw eminent danger to women and children on streets. He took the risk and managed to stop the horses. In the process he suffered injury. The court held that the defendant could not be allowed to take the defence of volenti non fit injuria.

2. Breach of statutory duty: If an injury is caused to another person by breach of a duty, by defendant, imposed by statute then the defendant cannot plead volenti non fit injuria.

3. Negligence: When the plaintiff consents to take some risk then there is presumption that the defen- dant will not be negligent. Therefore, if the patient dies after operation owing to negligence of the doctor the doctor cannot take the defence of volenti non fit injuria.

4. Unfair Contract Terms Act, 1977 (England): It limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term or by notice.

Act of God (vis major)

Act of God is extraordinary occurrence of circumstances which could not have been foreseen of guarded against. Such circumstance is due to natural cause and without human intervention.

In case of act of God the harm could not be avoided by any amount of foresight or prudence. For example occurrence of earthquake, volcano, exceptionally heavy rainfall, storms etc.

Essentials of Act of God

• There must be working of natural forces without human intervention.
• Occurrence must be extraordinary which could not have been anticipated

In Nicholas v. Marshland, defendant created some artificial lakes on his land. There was extraordinary rainfall (heaviest in human memory) and as a result of it water overflowed and washed away the nearby bridge of plaintiff. The defendant was not held liable because the loss occurred due to act of God.

Private defence

• The law permits use of reasonable force to protect one's person or property. If the person uses reasonable force to ward off danger to person or property then he will not be liable for the loss caused due to it. However, use of force must be restricted and justified to the extent of protection only. Such Force cannot be used to counter-attack.

In Bird v. Holbrook, the defendant had put spring guns in his garden without fixing any notice. The trespasser was injured from the automatic discharge. It was held that the plaintiff was entitled to recover compensation as the force used was greater than the occasion demanded.

Plaintiff, the wrongdoer

This is a weak defence. If the plaintiff is at fault that will not disentitle him to recover the loss which he has suffered by the act of defendant.

The only case in which the defendant can successfully plead this defence is that there is some unlawful act or conduct of the plaintiff which is directly connected with the harm suffered as a part of same transaction. [Sir Frederick Pollock]

If the owner of the house throws stones at trespasser, he will be liable for throwing stones although he can bring action against the trespasser for trespass.

Necessity 

The basis of defence of necessity is that if the act causing harm is done to prevent a larger harm then it is not actionable. This defence is confined to urgent cases of eminent danger. For example if the person pulls down a house in order to prevent the fire from spreading to adjacent house then the act will be justified in case of necessity.

The necessity can be:-

• Private necessity
• Public Necessity 
• Assistance given to third party without consent.

→ In Cope v. Sharpe, the defendant entered the plaintiff's land to prevent the spread of fire to the adjoining land. Since the defendant's act was considered to be reasonably necessary, he was not held liable for trespass.

Mistake

As a general rule, mistake, whether of fact or law, is no defence to an action in tort. However, in certain limited cases the defence of mistake can be taken.

In torts requiring malice, such as malicious prosecution, deceit etc., defendant can plead that he acted under honest and mistaken belief.

→ Thus mistake is a good defence in cases where mental element is essential ingredient in constituting wrong

Statutory authority

When an act s done under the authority of law then it is a complete defence. Injured party has no remedy except claiming compensation. (if any, provided under the Act). 

It is based on the principle that if statute can create a right, it can abolish and modify it also,

→ Immunity is not only from the harm that is directly caused but also to the incidental harm that may be caused.

In Vaughan v. Taff Vale Rail Co., sparks from the engine of a rail company set fire to the appellant's woods on adjoining land. It was held that since the respondent had taken care to prevent emission of spark they were held not liable. If the act authorized by the statute is done in negligent manner then the action lies. 

In Smith v. London And South Western Railway Co. the servants of the railway company negligently left trimmings of grass and hedges near railway line. Sparks from the engine set fire thee nearby materials. The railway company was held liable because of negligence on their part.

Act causing slight harm

This defence is based on the maxim de minimis non curat lex. It means the law does not take care of trifles.

If a slight or negligible harm is caused to the plaintiff then the defendant cannot be made liable for it.

If 'A' drives on a dusty road and little mud splashes the clothes of 'B' was passing by that road then no action can be brought.

This maxim has no application if a legal right is violated. If a legal injury is caused then howsoever trivial it may be the law will take it into account.

Inevitable accident

It is an unexpected injury which cannot be foreseen or avoided in spite of reasonable care. This defence is available if the accident occurs during the prosecution of a lawful act.

In Nitro Glycerine Case the defendants received a wooden case for further transmission. They were not informed of its contents. The contents were found to be leaking and the defendant took them for examination. While examining the contents the nitro glycerine exploded. The defendants were held not liable because it was sheer case of accident.

NEGLIGENCE

Negligence does not have any precise definition. Supreme Court in Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, held that negligence is the breach of duty caused by the omission to do something which a reasonable man would do.

Actionable negligence consists of neglect of ordinary care or skill towards a person to whom the defendant owes a duty of care.

Negligence has two meanings

1. Negligence as state of mind: It means negligence as a mode of committing certain torts. It means attitude of indifference towards one's conduct and its consequence.

2. Negligence as conduct: It means a conduct which involves risk of causing harm. It is a conduct that fails to conform to the standards required by law or safeguarding others against risk of injury. [Dr. John Fleming]

Essentials of negligence

 Following are the essentials of negligence:-

• The defendant owed a duty of care towards plaintiff.
• The defendant made a breach of that duty
• Plaintiff suffered damage as a consequence of such breach

Duty to take care

→ Duty to take care means a legal duty. It should not be a mere moral or social duty. The duty may arise out of statute or otherwise. Duty is an obligation recognized by law to avoid unreasonable conduct resulting in risk of damage.

Donoghue v. Stevenson is a leading judgment on this point. The court held that a person must take reasonable care to avoid acts or omissions which he can reasonably foresee that it will injure the neighbour.

The court defined 'neighbour' as 'person so closely affected by my act I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

This case also established that the doctrine of privity of contract has no application in cases of tort. 

Reasonably foreseeable injury

The duty to take care also depends on the reasonable foreseeability of the injury. If the injury to the plaintiff is not foreseeable then the defendant is not liable. In Glasgow Corpn v. Muir, defendant Corporation permitted a picnic party. Members of picnic party were carrying huge gallons of tea through a passage where children were also playing. One of the member lost grip of gallons and few children were injured. It was held that the defendant were not liable because the injury was not foreseeable.

→ In Bolton v. Stone, the person on road was injured by a ball hit by a player on a cricket ground. The court held that the defendant was not negligent as the injury was not foreseeable.

Breach of duty to take care

→ Breach of the duty means not taking proper care which is required in a particular situation. The stan- dard of care required is that of a 'reasonable man'. 

In Blyth v. Birmingham Waterworks Co., the court held that law requires caution which a prudent man would observe.

In Latimer v. A.E.C. Ltd., due to heavy rains factory was flooded with water which got mixed with oily substance and made the floor slippery. Defendants took all possible care and spread sawdust. Silloily patches remained and plaintiff suffered injury. The court held that defendant was not liable as he took all possible care to avoid the harm.

The degree of care varies according the magnitude of harm. The larger the harm, the greater the care.

Res ipsa loquitor

Res ipsa loquitor means 'thing speaks for itself'. As a general rule the burden of proving negligence is on the plaintiff. But in certain cases inference of negligence is drawn from the facts and plaintiff need not prove it.

In a situation where the accident or occurrence explains only one thing that the accident could not have happened unless the defendant was negligent, the plaintiff need not prove negligence. The burden shifts to defendant to prove that he was not negligent. This maxim is not a rule of law. It is a rule of evidence.

This maxim applies when:-

• The thing was under the control and management of defendant; and
• The accident could not have happened in the ordinary course if the management applied proper care and caution.

In Municipal Corporation, Delhi v. Subhagwanti, AIR 1966 SC 1750, clock tower situated in Chandini Chowk collapsed. It belonged to Municipal Corporation Delhi and was under their control. Trial court and High Court applied the maxim res ipsa loquitor and held that it was the duty of Municipal Corporation to carry out periodical examinations and repair the tower. Supreme Court held that this maxim is applied when the circumstances surrounding the thing which caused the damage was under the control and management of defendant and happening does not occur in normal course without negligence.

CONTRIBUTORY & COMPOSITE NEGLIGENCE

Contributory Negligence

Meaning: When the plaintiff by his own negligence contributes to the damage caused by the negli- gence of the defendant it is called a case of contributory negligence.

In Municipal Corporation of Greater Bombay v. Laximan Iyer, AIR 2003 SC 4182, Supterne Court held that where the accident is due to the negligence of both parties, there would be contributory. negligence and both will be blamed.

In case of contributory negligence the liability depends upon whether either party could have avoided the consequence by exercise of reasonable care. Whichever party could have avoided the would be liable for the accident. [Municipal Corporation of Greater Bombay's case

In Rural Transport Service v. Bezlum Bibi, the driver of the overcrowded bus allowed passengers to travel on roof of the bus. While driving he ignored this fact and drove negligently. As a result the passenger sitting on the roof fell down and died. Driver and conductor were held responsible for the negligence although there was contributory negligence on the part of passengers as well.

Case of contributory negligence is slightly different from that of negligence simpliciter. In case of contributory negligence the plaintiff need not owe a duty of care to the other party. It is to be proved that the plaintiff did not take care of his own safety and as a result contributed to the damage.

Last opportunity rule: According to this rule the person who had the last opportunity to avoid the accident should be liable for the loss.

This rule was modified in England by Law Reform (Contributory Negligence Act), 1945. According to this provision whenever both parties are negligent and they have contributed to some damage then damages will be appropriated between them.

In India there is no such central legislation. However, Kerala legislature enacted The Kerala Torts (Miscellaneous Provisions) Act, 1976. This Act makes provisions for apportionment of liability in case of contributory negligence.

Composite Negligence

→ When negligence of two or more persons results in the damage to the third person then it is said to be'Composite Negligence".

In England such tortfeasors are classified into:-

1. Joint tortfeasors

Joint tortfeasors: Two or more persons are said to be joint tortfeasors, when the wrongful act which resulted in single damage was done by them in furtherance of a common design.

2. Independent tortfeasors

Independent tortfeasors: When two or more persons acting independently cause a single damage then they are called independent tortfeasors.

In India there is no such distinction between joint and independent tortfeasors. In India when two or more persons are responsible for a common damage (whether acting jointly or independently) they are known as composite tortfeasors. 

The liability in such cases is joint and several. No one of the tortfeasors can claim apportionment

DEFAMATION

→ Defamation can be defined as an injury to the reputation of a person without lawful excuse. Winf has defined defamation as 'publication of statement which tends to lower a person in the estimation right thinking members of society generally or which makes them shun or avoid that person'

→ A man's reputation is considered to be a property and in some cases more important than property[Dixon v. Holden]. 

• Defamation is both civil and criminal wrong. A person can simultaneously institute civil proceeding and criminal proceedings.

Libel and Slander

English law divides actions for defamation into two categories:

Libel: It is a publication of defamatory statement in some permanent form. For example, writing printing, picture etc.

Slander: It is a publication of defamatory statement in some transient form. For example, words spoken or gestures.

In English law libel is crime while slander is only a civil wrong. As far as Indian position is concerned. there is no such categorization in India. Both libel and slander are offences under Section 499 of Indian Penal Code.

Essentials of defamation

Following are the essential ingredients of defamation:-

• The words must be false and defamatory
• The words must refer to plaintiff.
• The words must be published. 

What is a defamatory statement? The statement is said to be defamatory when it tends to injure the reputation of the plaintiff. It exposes the plaintiff to ridicule, hatred, contempt or causes him to be shunned or avoided by his neighbours.

Such defamatory statement must be false. An action will not be maintainable for true statements.

Whether the statement is defamatory or not depends on how the right thinking members of society are likely to take it.

In S.N.M. Abdi v. Prafulla K. Mohanta, the court held that if the published material tends to lower the reputation of person in the eyes of substantial group of persons then that is sufficient to attract the liability. 

In D.P. Chaudhary v. Manjulata, there was a news item that Manujlata ran away with a boy at night. The news was false and without any justification. The news affected her marriage prospects and she was ridiculed in the society. The defendants were held liable for the statements.

Innuendo

Innuendo is a statement which is prima facie innocent but it has latent or secondary meaning which is defamatory. Therefore, these words are not defamatory in the ordinary sense but they convey a differ- ent meaning because of peculiar or special circumstances.

In Tolley v. J.S. Fry and Sons Ltd., Plaintiff was an amateur golf champion. There was an advertisement in the newspaper which portrayed plaintiff playing golf and a packet of chocolate protruding out of his pocket. The plaintiff contended that the caricature showed that the plaintiff did the advertisement for gain and reward and it compromised his position as amateur golfer. It was held that it was innuendo and hence defamatory.

Intention to defame is not necessary. When the statements are defamatory the question of motive or intention is irrelevant. The fact that the person making the statement believed to be innocent is no defence.

In Cassidy v. Daily Mirror Newspaper Ltd., Mr. Cassidy did not live with his lawful wife and occasionally visited her. The newspaper published a photograph of Mr. Cassidy and wrote that engagement of Mr. Cassidy has been fixed with Miss X. Mrs. Cassidy sued the newspaper alleging that innuendo was that Mr. Cassidy was not her husband and he lived with her in illegal cohabitation. The court held that innuendo was established and innocence of defendant was no excuse.

Defamatory words must refer to plaintiff

The plaintiff has to prove that the defamatory words were referred to him. If the publication of defamatory statement refers to plaintiff then the defendant is made liable.

In Hulton & Co. v. Jones, newspaper published a fictional article about a person named Artemus Jones. The news item had cast aspersions on morals of fictitious person. A real person of the same name brought an action for defamation. The defendant was made liable.

Defamation of class of persons: Defamation of a class of persons is no defamation. Defamation is an injury to the reputation of an individual. Therefore, if a person says 'All lawyers are thieves' then no individual lawyer can sue him.

Defamation of deceased: Defamation of a dead person is no tort. Although, under criminal law it would amount to defamation. [refer explanation of Section 499 Indian Penal Code]

Defamatory words must be published

Publication means making defamatory statement known to persons other than the person defamed. Communication of defamatory statements to plaintiff alone is not sufficient.

If a third person wrongfully reads the letter meant for plaintiff and gets to know the defamatory statements then it is no publication in eyes of law. [Huth v. Huth] But in case the defamatory letter is likely to be read by someone else then it will amount to publication.

Defences in action for defamation

Following defences are available to the defendant:-

1. Justification of truth
2. Fair comment
3. Absolute
4. Privilege
5. Qualified

Justification of truth

If the defendant is able to prove that the statements made by him were true then it will be a complete defence. Even though the publication was made maliciously, if the truth is proved it will serve as complete defence.

Fair comment

→ Fair comment means to critically analyze the facts. It is appreciation of facts. To be 'fair' the analysis of facts must be honest and relevant. It must also be made in public interest.

It is basically expression of honest and relevant opinion of certain existing facts. If 'A' says 'Z's book is foolish he must be a weak man'. It is a fair comment. On the other hand if 'A' says 'I am not surprised that Z's book is foolish because he is a weak man'. This statement is not fair comment..

Privilege

It is a situation where the law recognizes the freedom of speech and it is kept above the person's reputation. In such situations defamatory statements made are not punishable. Privilege may be

1. Absolute privilege

2. Qualified privilege

Absolute privilege

It is recognized in Parliamentary proceedings', 'Judicial proceedings', 'Military proceedings' etc. In such situation no action lies for defamation even though the statement is made maliciously. Articles 105 and 194 of the Constitution of India provides for absolute privilege in case of Parliamentary and State Legislative proceedings respectively.

Qualified privilege

There are two requirements of quailed privilege:-

1. The statements must have been made without malice;

2. There must be occasion for making the statement

In Adam v. Ward, it was held that a privileged occasion is an occasion where the person who makes a communication has an interest or duty to make such statement and the person to whom it is made has a corresponding interest to receive. The reciprocity is essential.

NUISANCE

According to Winfield nuisance as a tort means unlawful interference with person's use or enjoyment of his land, or some right over or in connection with it.

According to Pollock nuisance is the wrong done to a man by lawfully disturbing him in his enjoyment of his property or in exercise of his common right.

Nuisance means anything which is offensive, annoys or hurts. Such interference may be by way of noise, smoke, fumes, water etc.

Kinds of nuisance

Nuisance is of following two kinds:-

1. Public Nuisance
2. Private Nuisance

Public nuisance

• Public nuisance is a crime while private nuisance is a civil wrong. 
• Public nuisance can be defined as an unreasonable interference with the right common to general public. For example, digging a public road, obstructing a public way or constructing structures on it are instance of public nuisance.
• Public nuisance does not create cause of action for civil suit. But in the following cases an individual may bring a civil action in case of public nuisance:-

1. If a special or particular damage or injury is caused to that individual apart from rest of the public. 

2. Such special damage or injury must be direct and not mere consequential.

3. The injury must be of substantial character.

In Dr. Ram Raj Singh v. Babulal, the defendant started a brick grinding machine in adjoining pre- mises of plaintiff. Plaintiff was a medical practitioner and the dust generated by the machine caused inconvenience to him and his patients. The court awarded special damages to him. 

Private nuisance (Tort of nuisance)

Following are essential ingredients in order to constitute tort of nuisance:-

1. Unreasonable interference

2. Such unreasonable interference is with the use of enjoyment of land or property

3. Damage caused as a consequence of that interference

In order to constitute nuisance interference must be unreasonable. Therefore, every interference is not nuisance. In Sadleigh v. O'Callageham, the court held that test of reasonableness is according to ordinary usage of mankind living in society.

An act which is otherwise reasonable does not become unreasonable due to over-sensitiveness of the plaintiff. Only a substantial interference with comfort and convenience is an actionable wrong.

In Radhey Shyam v. Gur Prasad, it was held that running a flour mill in a residential area was a nuisance.

If an act is otherwise lawful, does not become nuisance merely because it is done with evil motive. (Mayor of Bradford Corp. v. Pickles)

In order to successfully bring an action for nuisance, actual damage is to be proved.

Defences to nuisance

Following are the defences to nuisance:-

1. Prescription: An act which is otherwise be nuisance may be acquired by prescription. If a person has continued with an activity on the land of another for 20 years or more, he acquires a legal right by prescription.

2. Statutory authority: An act done under the authority of statute is complete defence. A railway company who is authorized to operate rail is not liable for the noise which it produces.

MALICIOUS PROSECUTION

Malicious prosecution means a judicial proceeding instituted by one against another from a wrongful or improper motive and without a probable cause. [W.B.S.E.B. v. D.K. Ray, AIR 2007 SC 976]

It must be noted that initiating an ordinary civil action is not a good cause of action for malicious prosecution.

Essentials of malicious prosecution

1. There must be a prosecution by the defendant. 

2 That prosecution must be initiated without any reasonable cause. 

3. Act of the defendant must be actuated by malice. 

4. The impugned proceedings terminated in favour of plaintiff. 

5. The plaintiff suffered damage as a result of the prosecution. 

Supreme Court in West Bengal Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976, held that there are two essential elements for constituting malicious prosecution:-

1. There is no probable cause for instituting the prosecution complained of;

2. Such proceeding ended in favour of plaintiff.

A prosecution is a criminal proceeding against a person in a court of law. When there is a criminal charge made before a judicial officer or a tribunal, it is said to be prosecution.

In Nagendra Nath Ray v. Basanta Das Bairagya, it was held that proceeding before police authori- ties is no prosecution.

Prosecution is said to commence when a person is summoned to answer a complaint. [Yates v. Queen] 

Criminal proceedings are conducted in the name of the State but for the purpose of malicious prosecution, the prosecutor is the person who initiates the proceedings. Mere giving the information to the police is not suffice. It is to be proved that the person took active part in the prosecution.

In Hicks v. Faulker, the court held that there is reasonable and probable cause when the defendant has sufficient grounds for thinking that the plaintiff was probably guilty of the crime imputed.

In a suit for malicious prosecution the plaintiff can claim damages on the following three counts:-

1. Damage to reputation

2 Damage to person

3. Damage to property

REMOTENESS OF DAMAGE

When a wrongful act is committed the consequences can be endless. The question is to what extent the defendant should be held liable? No person can be made liable for endless consequences.

Therefore, a person is made liable for those acts which are not too remote. The law cannot take into account everything that follows from a wrongful act.

If the consequences are too remote the defendant is not made liable, whereas if the consequences are proximate, the defendant will be made liable.

In Scott v. Shephard, 'A' threw a lighted squib into a crowd. It fell on 'X'. 'X' in order to save him threw it further. It fell on 'Y'. 'Y' also threw it further and as a result 'B' suffered injury. Here, 'A' was held liable for his acts because his act was the proximate cause of the damage.

Tests for determination of liability

Following are the two main tests to determine whether the damage is remote or not:-

Test of reasonable foresight

Test of reasonable foresight

According to it if the consequence of a wrongful act could have been foreseen by a reasonable man then they are not too remote.

In Greenland v. Chaplin, it was held that a person is expected to anticipate and guard against all reasonable consequences which are expected to flow from his acts.

Test of directness

According to this test a person is liable for all the direct consequences of his acts whether they are foreseeable or not.

This test was first upheld in Smith v. London & Western Railway Co. In this case railway company was negligent in keeping heap of grass trimmings near the track, spark from the engine set fire to the material. The fire was carried to the plaintiff's cottage due to high wind. The railway company was held liable although they could not have foreseen the accident.

In Re Polemis and Furness, Withy & Co. Ltd. the test of reasonable foresight was rejected. The court applied the view taken in Smith v. London & Western Railway Co. In this case the defendants chartered a ship to carry a cargo which consisted of Benzene and Petrol. Due to leakage in those tins some of their contents were collected in the hold of the ship. Owing to negligence of the defendant servant a plank fell into the hold which sparked fire and consequently the ship was destroyed. Defen- dants were held liable for all direct consequences of their servant's negligence.

According to this case once the wrongful act is established the defendant is liable for all the damage which is directly traceable to the negligent act. The damage must be directly related to the negligent act.

In Liesbosch Dredger v. Edison, the court limited the scope of Re Polemis case.

The rule laid down in Re Polemis case was not followed in Wagon Mound case. In Wagon Mound case it was held that test of reasonable foresight is better.

In Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engg. Co. Ltd. (popularly known as Wagon Mound case), a large quantity of oil was negligently spilled on the water from the Wagon Mound Ship. The oil was carried away by the wind to 600 ft away where a wharf was being repaired. A molten metal from the wharf fell on the floating oil and damaged the ship.

The Privy Council held that the ratio in Re Polemis was not the good law and held that since a reason- able man could not foresee the injury the defendants were not made liable. The court held that defen- dant can only be liable for reasonable foreseeable injury. Wagon Mound case was followed in several other cases, some prominent being Hughes v. Lord Advocate, Doughty v. Turner Manufacturing Co. Ltd.

VICARIOUS LIABILITY

Vicarious liability - Vicarious liability means the liability of a person for the acts done by another. As a general rule a person is liable for his own acts but in certain circumstances he is made liable for the acts of others. This arises out of certain relationship between two persons.

According to Salmond a person is responsible for his own acts but in exceptional cases the law imposes on him vicarious liability for acts of others.

Common examples for such liability is:-

1. Liability of principal for acts of his agent [Principal-Agent relationship]

2. Liability of partner for acts of another partner [Partnership]

3. Liability of master for acts of his servant [Master-Servant relationship]

Basis of vicarious liability

Following are the two principles on which the vicarious liability is based:-

1. Respondeat Superior: The doctrine of respondeat superior means 'let the superior liable'. This doctrine puts the master or the superior on the same position as if he had done the act himself. This is based on the legal presumption that all acts done by the servant/agent in the course of business are the acts of master/principal

2. Quit facit per alium facit per se: The doctrine means 'he who acts through others acts himself". Person is responsible for the wrongs of the person in whom he has entrusted the work.

Principal-Agent

When a principal authorizes his agent to do certain work, the principal is liable for the wrongs of his agent while doing such work. The authorization to do the work may be express or implied.

In Llyod v. Grace, Smith and Co., the clerk of the firm of solicitors committed fraud against a client and misappropriated the property of the client of the firm. The firm was held liable because the agent was acting in the course of the apparent authority of the principal.

In State Bank of India v. Shyama Devi, AIR 1978 SC 1263, an employee of the bank received cash and cheques in personal capacity from his friend on pretext of depositing in the bank. He misappropriated the funds. The court held that the bank cannot be made liable because the employee misappropriated the funds in the personal capacity.

Master-Servant

If the servant does any wrongful act in the course of employment the master is also liable for it apart from servant himself. That wrongful act of the servant is deemed to be that of master's also.

Following are the essentials to attract the master-servant liability:-

Act must be done by a Servant Such act must be done in the course of employment. 

Who is a servant?

A servant is a person who is employed by another to do certain works under the direction and control of his master.

Master is liable for the acts of the servant and not independent contractor. A servant is subject to direct control of the master. Master directs the servant what is to be done and how it is to be done. Independent contractor is not subject to any such control. Regarding the manner of the work he is not subject to anyone's control.

For example my car driver is my servant and if he drives negligently and injures someone I am also liable. While if I hire a taxi, then that taxi driver is not my servant. If he knocks down someone I will not be responsible for it.

In B. Govindarajulu v. M.L.A. Govindaraja Mudaliar, a motor car was entrusted by the owner for repairs. After the repairs the mechanic took the car for drive for testing purpose. He met with an accident. The court held that owner was not liable because the mechanic drove the car in the capacity of independent contractor.

Course of employment

In order to attract the principle of vicarious liability it is necessary that the wrong must be committed in course of employment.

An act is deemed to be in course of employment if

1. It is a wrongful act authorized by the master; or

2. Wrongful or unauthorized way of doing an act authorized by the master.

In State of Maharashtra v. Kanchanmala Vijay Singh, AIR 1995 SC 2499, Supreme Court held that if an unauthorized and wrongful act of the servant is not so connected with the authorized act as to the mode of doing that authorized act then the master is not liable.

In Century Insurance Co. Ltd. v. Northern Ireland R.T.B. a servant while transferring petrol from a lorry to underground tank lighted a cigarette and threw it on the floor. "This resulted in fire and explosion.

The act of the driver was held to be in the course of employment and master was held liable.

In Beard v. London General Omnibus Co., at the end of the journey the driver of the bus went to take dinner and during his absence the conductor drove the bus in order to turn it around and in that process negligently caused the accident. In this case the master was not held liable since the driving was not the kind of act the conductor was authorized to do.

In Limpus v. London General Omnibus Co., there was a specific instruction from the master that bus driver was not supposed to indulge in the race with another bus. In defiance of the specific instruction the driver engaged in a race and caused accident. It was held that in spite of the prohibition from the master the servant was still in the course of employment and master was held liable.

VICARIOUS LIABILITY OF THE STATE

Under the Common law, the Crown could not be sued in tort. No action would lie against the government for the wrongful acts committed by its servants.

The individual wrongdoer was personally liable even though he acted under the orders of the government. Thus, the normal rule of vicarious liability was not followed in case where the employer was State. This approach was modified by the Crown Proceedings Act, 1947. It made the crown liable for the torts committed by its servants.

In India we do not have any specific legislation like Crown Proceedings Act. The liability of the State is given in Article 300 of the Constitution.

Article 300 states that Union of India and the Government of the State can sue and be sued in the name of the Union and State.

→In Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, it was held that if the act done is in the exercise of the sovereign power of the State then the State cannot be sued but if the act was a non-sovereign function then the State can be sued.

Similarly in Nobin Chandra Dey v. Secretary of State for India, it was held that the State was exempted from the liability when the function was a sovereign one.

In State of Rajasthan v. Vidyawati, AIR 1962 SC 933, the Supreme Court observed that the Consti- tution has established a welfare State wherein the State is required to carry out welfare activities. In such scenario the State should not be immune to the tortious acts of its employees. C

This case tried to change the position with respect to liability of the State but Supreme Court again in Kasturi Lal v. State of U.P., AIR 1965 SC 1039, held that the State will not be liable in case of exercise of sovereign powers.

Although for all practical purpose the decision in Kasturi Lal's case still holds good because it has not been overruled specifically by any subsequent decision but its force has been reduced to a great extent.

In several other cases Supreme Court has bypassed Kasturi Lal's case and held the State responsible for its acts. It must be noted that interpretation of Article 21 post Maneka Gandhi's case has given the widest possible amplitude and courts have held State responsible under the dimensions of Fundamental Rights enshrined in Part III of the Constitution.

STRICT LIABILITY AND ABSOLUTE LIABILITY

Rule of strict liability makes the defendant liable for harms which are caused without any intention and negligence on his part. It is also called 'No fault liability'. The person is held liable for no fault of his.

The rule laid down in Rylands v. Fletcher is generally known as rule of strict liability. In this case the defendant got a reservoir constructed through independent contractors over his land. The reservoir had unused shafts which the contractors failed to observe. When the water was filled in the reservoir it burst through the shafts and flooded the adjoining coal fields of plaintiff.

• The court held the defendant liable and observed that if a person, for his own purpose, brings on his land anything which is likely to escape and cause mischief then he is prima facie answerable to all the damage which is the natural consequence of escape.

Essentials for application of this rule

Following are the essentials for the application of this rule:-

• Person must have brought dangerous thing on his land
• Such dangerous thing must escape
• It must be non- natural use of the land

This rule is applied on water, gas, electricity, fumes, explosives etc. The person is liable whether or not he is the owner.

Such dangerous thing must escape outside the occupation and control of the defendant. In Cheater v, Cater, there was a projection of branches of poisonous tree on the neighbour's land. The cattle on the neighbour's land was poisoned by eating leave . The court held that it was an escape of dangerous thing, Non-natural use of land means that it must be put to some special use having an increased danger to others. It must not merely be an ordinary use of land.

In T.C. Balakrishnan v. T.R. Subramanian, explosives in an open ground even on the day of festival is a no-natural use of the land.

Exceptions to the Ryland's rule

Following are the exceptions to Ryland's rule:-

1. Plaintiff's own fault
2. Act of God.
3. Volenti non fit injuria.
4. Statutory authority.
5. Act of third party/stranger.

Application of Ryland's rule in India

The rule of strict liability is applicable in India with some modifications. Under the following Acts strict liability is recognized to certain extent-

1. Motor Vehicles Act, 1988

2. Indian Railways Act, 1961

3. Carriers Act, 1865

4. The Public Liability Insurance Act, 1991

5. National Environment Tribunal Act, 1995.

Rule of Absolute Liability

Supreme Court in M.C.Mehta v. Union of India, AIR 1987 SC 1086 (popularly known as Oleum Gas Leak Case) evolved a new principle of absolute liability. This rule is not subject to any exceptions as laid down in Ryland's case.

The court held that owing to the social and economic conditions prevailing in the country the rule in Ryland's case is not applicable and if the exceptions in the Ryland's case are allowed then in most of the cases people would escape the liability.

The court formulated that when an enterprise is engaged in inherently dangerous activity which poses a threat to the safety of persons in surrounding area, such enterprise owes an absolute duty to the com munity to ensure that no harm results.

It was held that if harm results to anyone on account of accident, such enterprise is absolutely liable to compensate all those who are affected and such liability is not subject to any exceptions of strict liability.

Supreme Court applied this principle in Union Carbide Corporation v. Union Of India, AIR 1990 SC 273 (popularly known as Bhopal Gas Leak Case).

→ This principle was widely applied by Supreme Court in various cases related to environmental pollution.

For example - Indian Council for Enviro-Legal Action v. Union Of India, AIR 1996 SC 1446.

TRESPASS TO PERSON AND PROPERTY

Trespass generally means interference and transgression without lawful justification. It can be in the following forms-

• Trespass to person.
• Trespass to land.
• Trespass to goods.

It has a close connection with tort of nuisance if the interference is consequential it may get converted to nuisance.

Trespass to Persons.

Trespass to person may be categorized into following three forms -

• Battery
• Assault
• False Imprisonment

Battery

• It can be defined as intentional application of force without any lawful justification. Therefore, follow ing are the essentials -

1. Use of force.
2. Without lawful justification.

• The force may be used even without the bodily contact. In the process of using force physical hurt need not be there.
• It is essential that use of force should be intentional and without lawful justification. For example - pulling a drowning man out of water or forcefully feeding a hunger striking prisoner is use of force but it is not battery.

Assault

• It is an act which causes a reasonable apprehension of infliction of force. It is an attempt to inflict a corporeal hurt. The wrong consist in attempt to do rather than causing the harm. For example - pointing a loaded gun is an assault. If it is not loaded then also it can be assault if it creates apprehension in the mind of the other that it is loaded.

The test of assault is whether an apprehension has been created in the mind of plaintiff that the battery is going to be committed. It is also essential that there should be a prima fucie ability to do the harm.

False Imprisonment

• It means imposition of total restraint upon the liberty of another without lawful justification. The restraint may be howsoever short. Therefore, following are the essential requirements -

i) Total restraint on liberty of the person.

ii) It should be without lawful justification.

Under the criminal law it is irrelevant whether the restraint is total or partial. In civil law partial restraint is not actionable.

• In Bird vs. Jones it was held that if a person is prevented from moving in a particular direction but he was allowed to go back then there is no false imprisonment.

It is not necessary that a person should be imprisoned in a jail or within the four walls. If the restraint is such that it prevents a person from moving beyond a certain circumscribed limits there is false imprisonment. 

If there is a means of escape then the restraint cannot be termed as total and does not constitute as false imprisonment. However, such means of escape must be intelligible to the person detained.

• Knowledge of the person that he has been imprisoned is not required. That is to say that a person may be imprisoned without his knowledge.

Remedies in Trespass to Person

• Following are the remedies -

1. Action for damages.

2. Habeas Corpus

3. Self help

Trespass to Land

Trespass to land means interference with the possession of land without lawful justification. Trespass may be committed by -

Entering upon the land.

By remaining there.

By doing an act affecting the possession of plaintiff.

Trespass is a wrong against possession rather than ownership. It means that a person in actual possession can sue even though he is not the owner.

In Perera vs. Vandiyar the court held that going beyond the purpose for which person has entered also amounts to trespass.

Trespass is actionable per se. The plaintiff need not prove any damage for an action of trespass.

When a person enter certain premises under some authority and he abuses his authority after entering the premises b committing wrongful act he will be considered to be a trespasser ab initio,

Remedies

Following are the remedies available:

• Re-entry

• Action for

• Action for mesne profits

• Seizure ejectment.

Trespass to Goods

Trespass to goods means direct physical interference with the goods which are in the plaintiff's possession. Such interference is without any lawful justification. Wrong may be committed intentionally, negligently or by honest mistake.

• Detinue: It means adverse withholding of the goods of another. It is an action for recovery of goods unlawfully detained by the defendant.

If the original possession is lawful but subsequently goods are wrongfully detained the action can be brought.

In England detinue is abolished by Torts (Interference with Goods) Act, 1977.

In India there is no specific provision for detinue but under Section 7 and 8 of Specific Relief Act Person can claim possession for specific movable property. → Conversion: It means dealing with goods in such a manner that the person who is entitled to immediate possession is deprived of it. Such dealing is willful and without any legal justification. In other words it is dealing with goods in such a manner which is inconsistent with the rights of the owner. This tort is also called "Trover'.

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