Law of Torts-Part-I

1. What is tort and its essential elements?

2. General Defences.
3. Mental Elements.(Do it on your own)
4. Malice-in-fact and Malice-in-law.
5. Assault and Battery. Mayhem (Short Notes).
6. False Imprisonment.
7. Negligence.
8. Nuisance.
9. Strict Liability.
10. Absolute Liability.
11. Vicarious Liability.
12. Legal Remedies-Awards-Remoteness of damages.(Do it on your own)
13. Defamation.
14. Malicious Prosecution.

Law of Torts-Part-II
I. Consumer Protection Act of 1986.
II. Motor Vehicles Act of 1988.

Law of Torts-Part-I
 -:What is Tort:-
1. Define tort and discuss the essential elements of torts.
2. Define Tort. Explain the essential elements of tort with decided cases.
3. Define the term ‘Tort’ and discuss its essentials.
4. Trace the development of law of torts in England and India.
5. Define ‘Tort’. Explain ‘Injuria Sine Damno’ and ‘Damnum sine Injuria’.

Synopsis:-
1. Introduction.
2. Meaning.
3. Origin and Development.
4. Development of Torts in England and India.
5. Definition.
6. Essential elements.
7. Conclusion.

1. Introduction.
In common sense the Law of Torts is the branch of law controlling the behavior of the
people in the society. It is a growing branch of Law and its main aim is to define individual’s
rights and duties in the light of prevalent standards of reasonable conduct and public
convenience. A tort is an infringement of a private common law right in rem.
2. Meaning.
The term “Tort” has been derived from Latin term, “Tortum” which means “to
twist” or “crooked”, which means which is not straight and correct.
The term “Tort” has been originally taken from French word, its English equivalent
word is “Wrong”.
In Roman term it is “delict” which means “law breaking/misdeed”, i.e., deviation
from straight or right conduct.
But it was obscure (blear, stupefy, mabbugolisu) term till the middle of the 17 th
century.

3. Origin and Development.

A tort is the infringement of a private legal rights as distinguished from a public right.
It was introduced in the terminology of English law by the French
speadking lawyers and judges of the courts of Normandy and Angevin kings of
England.
Till that time procedure was considered more important than the right. There were
certain recognized forms of action for providing remedy for the wrongful conduct. An action
was commenced through a royal writ.
These writs were issued from a special department of Government known as
‘officinal brevium’ or (writ Shop.

The plaintiff had to choose the correct or appropriate writ and pay for it.
If he purchased a wrong writ or he could not fit his claim in one of the recognized
forms of action his suit was dismissed.

The rule was ubi jus ibi remedium i.e., Latin maxim. Meaning of it is, “ for every
wrong, the law provides a remedy”. That means, where there was no right there was no
remedy.
These procedural aspects of writs were available as remedy for determining the
success for a case continued for some 500 years. Some amendments in the law were made
in 1832 and 1833 and ultimately in 1852, common Law Procedure Act was passed and
where by writs were abolished.
The law of tort is still growing. If a thing is still growing no satisfactory definition can
be given.

4. Law of Torts in England and India:-

The law of torts in India is generally based on English law of torts.
 As regards the suits for damages for torts courts generally followed the English Common
Law, so far as it was constant with equity, Justice and good conscience.
The law of torts remains one of the few branches of law which have not yet been
codified as a whole in India, but it is still based on the common Law of England which
introduced with the establishment of The British Courts in India.
Some parts of the law of torts have, however been codified by statutes relating to
particular branches of the law, and so far the English Law relating to those subjects are
inapplicable,
1. Specific Relief Act, 1963.
2. Fatal Accidents Act, 1855.
3. Carriers Act, 1865.
4. Sale of Goods Act, 1930.
5. Easements Act, 1930.
6. Patents and Designs Act ,1911.
7. Workmen’s Compensation Act, 1923.
8. Employer’s liability act, 1938.
On the other hand, it is to be noted that what is applicable in Inida are the rules of the
Common Law in England, as explained above, and not the modifications thereof as have
been made in England by British Statues, E.g., the Law Reforms Act, Crown Proceedings
Act, etc.

5. Definition of Torts:-
Before a definition of torts is analyzed it is claimed by many writers that an accurate
definition of tort is very difficult to give and they gave the following reasons for their
assertion.
1. Law of Torts is based on the decided cases; hence, the Judges, while deciding case
feel their primary duty is to adjudge the case in hand rather then lay down wider rules.
Hence they seldom manufacture any definition of legal term.
2. The remedy was provided on the basis of forms of action i.e., writ which is the next
compartment of law of torts thus there does not exist any definition of tort.
3. The term in common law systems for a civilly actionable harm or wrong and for the
branch of law dealing.

Definition:
1. 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 a contract or the breach of a trust or
other merely equitable obligation”.
2. Winfield:- Tortious liability arises from the breach of duty primarily fixed by law. This duty is
towards persons generally its breach is redressible by an action for unliquidated damages.
3. Frazer:- It is an infringement of a right in rem of a private individual giving a right to
compensation at the suit of the injured party.
 Tort is a civil wrong.
 This civil wrong is other than a mere breach of contract of breach of trust.
 This wrong is redressible by an action for unliquidated damages.

6. Essential Elements of Torts:-

1. Wrongful act or omission. 2. Legal damages or Injury.

1. Wrongful act or omission:-

 Wrongful act or omission to act are the first essential element of torts.
 It means omitted his legal duty which cause injury to the plaintiff.
 Tort is a branch of some duty between citizens, defined by the general law, which
creates a civil cause of an action.
 This duty must be founded in common right, not in a strictly personal relation such
as those of husband and wife or parents and child. This duty is fixed by the law
and not depended on the will of the parties.
 The moral or religious duties do not impose a tortuous liability.
  The tortuous liability is imposed only when there is a breach of Law.

For Example: -
a. I have a duty to drive my vehicle very carefully. Law imposes Strict Liability upon me that I
should not cause any accident to any person but if I hit a person it means a negligent action.
I failed to discharge my duty and have caused injury to the person who has a right to sue
against my wrongful act and for the injury that he has suffered.
Case Laws:-
b. Municipal Corporation of Delhi Vs. Subhagwanti. A.I.R. 1966 SC 1975 at p.1752.
Brief facts:- The Delhi Municipality failed to maintain Clock Tower correctly. Clock Tower
situated opposite to the Town Hall in main Bazar of Chandhni Chowk, Delhi.
It was under the control of the Delhi Municipality. They did not maintain properly.
It was 80 years old but its normal life was only for 45 to 50 years.
It Collapse or fell down and cause the death of many people. The husband of Subhagwanti
also died in that accident.
Judgement:- Supreme court held that Municipality was liable to pay the compensation to
the dependants of the victims. The defendant was held liable for wrongful act i.e., the
Municipality has failed to take care of the Clock Tower and hence it has Omitted to do its
legal duty. Such wrongful acts recognized by law.
Mere moral, social, religious acts does not make a person liable.

2. Legal Damages or Injury:-

 Legal damages are the second essential element of Torts.
 The Injured is entitled to get the legal damages.
 This legal damages are unliquidated damages.
 Before an incident occurs the plaintiff and defendant may not know each other
and also they may no know the nature of the tort.
 In case of breach of some duty that is wrong done by the defendant his liable to
pay the compensation to the plaintiff.
 Defendant has infringed of the private legal rights of the plaintiff and hence the
plaintiff is entitled to get the compensation.
 It cannot be ascertained before the tort. It can only be ascertained after its
occurrence.
 If the defendant violates only private legal rights of the plaintiff that time he will
be held liable to pay the compensation to the plaintiff.

This element is based on two Legal Maxims

“Damnum Sine Injuria” and “Injuria Sine Damno”

Difference between Damnum Sine Injuria and Injuria Sine Damno

Sl. Damnum Sine injuria Injuria Sine Damno
No.
1. Meaning: Meaning:
Damnum means Damage in the sense of Injuria means legal injury or loss or
money, loss of comfort, service, health etc. infringement of a legal right.
Sine means without. Sine means without.
Injuria means legal injury or loss or Damno means damages, monetary
infringement of a legal right. loss, loss of comfort, service, health
 In short, Damnum Sine injuria means etc.
damage without infringement of any legal In short, Injuria sine damno means
right. Injury without damage or it means
infringement of an absolute private
right without any actual loss or
damage.
2. Damage without injury is not actionable. This is actionable, because there is
violation of legal right, even though
plaintiff suffers no loss in term of
money and defendant is liable.
3. Example:- Example:-
Gloucester Grammar School Case, 1410 in Suppose ‘A’ enter a private compound
this famous case, Court held that, Deft not without permission of the owner just
liable. Compensation is no ground of action for asking water here the moment ‘A’
even though monetary loss in caused if no step in, A commit trespass and action
legal right is violated of anybody. can lie against ‘A’ even no actual
damage is caused.
4. Relevant case law:- Relevant case law:-
a) Gloucester Grammar School Case, a) Ashby Vs. White (1703)
(1410).
5. Explained by the Mathematical Formula Explained by the Mathematical Formula
deduced by Professor S. P. Singh in his deduced by Professor S. P. Singh in
book ‘Law of Tort’ as: his book ‘Law of Tort’ as:
i. Act+ Loss- Injury =Damnum Sine injuria i. Act+Injury-Loss= Injuria Sine damno.
ii. Defendant’s act +Plaintiff’s Loss- ii. Defendant’s act+Plaintiff’s Injury-
Plaintiff’s injury= Damnum sine injuria. Plaintiff’s loss= Injuria Sine Damno.
Brief Facts of Case Gloucester Grammar School Case (1410):-
A teacher opened a school named XYZ to teach grammar to the students. After few days,
another teacher opened a school named ABC which was right opposite XYZ. Most of the
students from XYZ school took admission in ABC thereby causing monetary damages XYZ. The
teacher of XYZ filed a suit but the court dismissed the petition because even though damage
was suffered, the legal right was not violated.

Brief facts of Case Ashby Vs. White , (1703):-

Mr. Ashby was wrongfully prevented from exercising his vote at an election by the misfeasance
of a constable, Mr. White. Interestingly, the candidate for whom Ashby wanted to give his vote
had come out successful in the election. Still he brought an action claiming damages because
his legal right of voting was infringed. In this case, court allowed the damages.
7. Conclusion:-
Thus here I would like to conclude that by seeing all the above given the definition on torts,
the definition of Winfield seems to be accurate, convincing and appropriate than of Others.
In Salmond definition, the term civil wrong is not correctly indicated. And also while we are
discussing the differences in between torts and crime there are lot of differences.
******************

Definition of Tort and how it distinguishes from Crime

1. Define the term “Tort” and distinguish it from Crime.
Synopsis:-
1. Introduction.
2. Meaning.
3. Definition.
4. Essential elements.
5. Difference between Tort and Crime.
6. Conclusion.

1. Introduction.
 In common sense the Law of Torts is the branch of law controlling the behavior of the
people in the society. It is a growing branch of Law and its main aim is to define individual’s
rights and duties in the light of prevalent standards of reasonable conduct and public
convenience. A tort is an infringement of a private common law right in rem.
2. Meaning.
The term “Tort” has been derived from Latin term, “Tortum” which means “to
twist” or “crooked”, which means which is not straight and correct.
The term “Tort” has been originally taken from French word, its English equivalent
word is “Wrong”.
In Roman term it is “delict” which means “law breaking/misdeed”, i.e., deviation
from straight or right conduct.
But it was obscure (blear, stupefy, mabbugolisu) term till the middle of the 17 th
century.
3. Definition of Torts:-
Before a definition of torts is analyzed it is claimed by many writers that an accurate
definition of tort is very difficult to give and they gave the following reasons for their
assertion.
4. Law of Torts is based on the decided cases; hence, the Judges, while deciding case
feel their primary duty is to adjudge the case in hand rather then lay down wider rules.
Hence they seldom manufacture any definition of legal term.
5. The remedy was provided on the basis of forms of action i.e., writ which is the next
compartment of law of torts thus there does not exist any definition of tort.
6. The term in common law systems for a civilly actionable harm or wrong and for the
branch of law dealing.

Definition:
1. 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 a contract or the breach
of a trust or other merely equitable obligation”.
2. Winfield: - Tortious liability arises from the breach of duty primarily fixed by law. This
duty is towards persons generally its breach is redressible by an action for unliquidated
damages.
3. Frazer: - It is an infringement of a right in rem of a private individual giving a right to
compensation at the suit of the injured party.
 Tort is a civil wrong.
 This civil wrong is other than a mere breach of contract of breach of trust.
 This wrong is redressible by an action for unliquidated damages.

4. Essential Elements of Torts:-

1. Wrongful act or omission. 2. Legal damages or Injury.

5. Difference between Law of Torts and Law of Crime

Sl. No Law of Torts Law of Crime

1. It is violation of private rights of an It is a violation of public rights against the
Individual or Group of Individuals. society or community as a whole..
2. It is a Civil Wrong. It is a Criminal Wrong.

3. It is a Modern Law. It is a Older Law.

4. It gives rise to the Civil Proceedings. It gives rise to Criminal Proceedings.

5. The person who commits a tort is The person who commits a crime is called
called as Tort Feasor. as offender or criminal.
 6. It is an Un-codified but Judge-made It is a Codified Law.
Law.
7. It is not systematically arranged. It is systematically arranged.

8. Burden of proof lies on the injured Burden of proof lies on the State, injured
party. party becomes only a witness.
9. Intention is not important factor. Intention is important factors, i.e., mens
rea (ill-intention) plays an important factor
in determining the criminal.
10. Wrong doer is held liable to pay the Wrong does is usually punished but some
compensation to the Injured party. time held liable to pay Imposed Amount as
fine, which is credited into the state
account.
11. The main objective of torts is to get The main objective of crime is to punish
relief to the Plaintiff from the Injury. the criminals and establish peace and
security in the Society.

6. Conclusion:-
Thus here I would like to conclude that by seeing all the above given the definition on torts,
the definition of Winfield seems to be accurate, convincing and appropriate than of others.
In Salmond definition, the term civil wrong is not correctly indicated. And also while we are
discussing the differences in between torts and crime there are lot of differences.

****************

1. Distinguish between Damnum Sine Injuria and Injuria Sine Damno with the help of the
leading cases.
2. “Every injury imports damage but every damage is not injury”. Discuss the statement in the
light of decided cases.
3. Discuss the doctrine of “Damnum Sine Injuria” and “Injuria Sine Damno” with reference to
decided cases.
Difference between Damnum Sine Injuria and Injuria Sine Damno
Sl. Damnum Sine injuria Injuria Sine Damno
No.
1. Meaning: Meaning:
Damnum means Damage in the sense of Injuria means legal injury or loss or
money, loss of comfort, service, health etc. infringement of a legal right.
Sine means without. Sine means without.
 Injuria means legal injury or loss or Damno means damages, monetary
infringement of a legal right. loss, loss of comfort, service, health
In short, Damnum Sine injuria means etc.
damage without infringement of any legal In short, Injuria sine damno means
right. Injury without damage or it means
infringement of an absolute private
right without any actual loss or
damage.
1. Damage without injury is not actionable. This is actionable, because there is
violation of legal right, even though
plaintiff suffers no loss in term of
money and defendant is liable.
2. Example:- Example:-
Gloucester Grammar School Case, 1410 in Suppose ‘A’ enter a private compound
this famous case, Court held that, Deft not without permission of the owner just
liable. Compensation is no ground of action for asking water here the moment ‘A’
even though monetary loss in caused if no step in, A commit trespass and action
legal right is violated of anybody. can lie against ‘A’ even no actual
damage is caused.
3. Relevant case law:- Relevant case law:-
b) Gloucester Grammar School Case, b) Ashby Vs. White (1703)
(1410).
4. Explained by the Mathematical Formula Explained by the Mathematical Formula
deduced by Professor S. P. Singh in his deduced by Professor S. P. Singh in
book ‘Law of Tort’ as: his book ‘Law of Tort’ as:
iii. Act+ Loss- Injury =Damnum Sine injuria iii. Act+Injury-Loss= Injuria Sine
iv. Defendant’s act +Plaintiff’s Loss- damno.
Plaintiff’s injury= Damnum sine injuria. iv. Defendant’s act+Plaintiff’s Injury-
Plaintiff’s loss= Injuria Sine Damno.

Brief Facts of Case Gloucester Grammar School Case (1410):-

A teacher opened a school named XYZ to teach grammar to the students. After few days,
another teacher opened a school named ABC which was right opposite XYZ. Most of the
students from XYZ school took admission in ABC thereby causing monetary damages XYZ. The
teacher of XYZ filed a suit but the court dismissed the petition because even though damage
was suffered, the legal right was not violated.
Brief facts of Case Ashby Vs. White , (1703):-
Mr. Ashby was wrongfully prevented from exercising his vote at an election by the misfeasance
of a constable, Mr. White. Interestingly, the candidate for whom Ashby wanted to give his vote
had come out successful in the election. Still he brought an action claiming damages because
his legal right of voting was infringed. In this case, court allowed the damages.
**************
1. Define and distinguish between Tort and Crime, Tort and Contract.
2. Define ‘Tort’ and distinguish it from the Crime and Contract.
Difference between Law of Torts and Law of Crime
Sl. No Law of Torts Law of Crime
1. It is violation of private rights of an It is a violation of public rights against the
Individual or Group of Individuals. society or community as a whole..
2. It is a Civil Wrong. It is a Criminal Wrong.

3. It is a Modern Law. It is a Older Law.

4. It gives rise to the Civil Proceedings. It gives rise to Criminal Proceedings.

5. The person who commits a tort is The person who commits a crime is called
called as Tort Feasor. as offender or criminal.
6. It is an Un-codified but Judge-made It is a Codified Law.
Law.
7. It is not systematically arranged. It is systematically arranged.
 8. Burden of proof lies on the injured Burden of proof lies on the State, injured
party. party becomes only a witness.
9. Intention is not important factor. Intention is important factors, i.e., mens
rea (ill-intention) plays an important factor
in determining the criminal.
10. Wrong doer is held liable to pay the Wrong does is usually punished but some
compensation to the Injured party. time held liable to pay Imposed Amount as
fine, which is credited into the state
account.
11. The main objective of torts is to get The main objective of crime is to punish
relief to the Plaintiff from the Injury. the criminals and establish peace and
security in the Society.
Difference between Law of Torts and Law of Contracts
Sl. No Law of Torts Law of Contracts
1. It is violation of rights in rem It is infringement of right in personam.
(against the matter). (against the person).
2. Torts are focused on the actionable Contracts deals with the formation, drafting
wrong. and consequences of the Legally binding
agreement between two parties.
3. It is uncodified law. It is codified law.

4. In torts duty is fixed by law In contract duty is fixed by the parties.

5. In tort there is duty towards persons In contract there is duty towards specific
generally. person.
6. Laws are not arranged in a Laws are arranged in a systematic manner.
systematic manner.
7. Intrusion by one party into health, Parties must have entered into agreement
safety or profit of privacy of the knowingly.
victim.
8. Interaction will be based on the Consent must be given by two or more
consent. person.
9. In Torts motive for the breach is In Contract motive for breach is immaterial.
considered to ascertain the amount
of damages.
10. In torts a minor is liable. A minor’s contract is void.

11. Vicarious liability is possible in torts. There is no vicarious liability in breach of

contract.
12. In it remedy is by way of In it the remedy is by way of liquidated
unliquidated damages. Wrong doer damages. No compensation is paid in case
is held liable to pay the of contract induced by fraud,
compensation to the Injured party. misrepresentation, Mistake, undue influence
and coercion.

1. Distinguish between Tort and Quasi-Contract.

Difference between Law of Torts and Law of Quasi Contract
Sl. No. Law of Torts Quasi Contract
1. Plaintiff is entitled to get the Plaintiff is entitled to get the
unliquidated damages. liquidated damages such as
injunctions specific restitution of
property.
2. The Duties and Rights of every person The Duties and Rights of every person
are right in rem. (against the matter). are right in per sonam. (Against the
person).
3. The plaintiff and defendant may or may The plaintiff and defendants may not
not know each other before the incident know each other.
 occure.
4. Tort is not a kind of contract. Quasi contract is a hypothetical
contract implied by law.

******************

-:General Defences:-

1. Explain ‘Plaintiff’s fault’ and ‘Act of God’ as general defences, with the decided cases.
2. Explain the Justification of torts in the following cases.
Act of God.
Inevitable accident.
Statutory Authority.
3. Explain the defences of defendant if that person committed the tort.
4. Briefly explain the various defences available to the defendant in an action for tort.
5. Write a short note on: Private Defences.
6. Explain the general defences available against tortuous liability.
7. Explain briefly the exceptions to the general rule that all persons are liable to be sued.
8. Enumerate and examine the general defences to an action in tort.

Synopsis:-
 1. Introduction.
2. Grounds of General Defences.
1. Volenti non fit injuria. (Consent or leave)
Carstair Vs.Taylor (1871).
2. Default of the Claimant or Plaintiff’s own default.
Ponting Vs. Noakes (1849)
3. Act of God. (Vis Major)
Nicholas Vs. Marsland. (1876)
4. Inevitable accident.
Holmes Vs. Mather (injury to runaway horses) (1875)
Brown Vs. Kendall(1850)
5. Necessity.
Leigh Vs. Gladstone (1909
Cope Vs. Sharpe (1965)
6. Private Defence.
Ramanuja Mudali Vs. M. Gangan
Creswell Vs. Sirl:- (1948)
7. Acts causing slight harm.
8. Statutory Authority.
Vaughan V. Taff Valde Rail Co., (1860).
9. Parental and Quasi-Parental Authority.
Rex Vs. Newport (Salop) (1929)
10.Act of State.
The Secretary of state in Council of India Vs. Kamachee Boye Saheba.
11. Judicial and Executive acts.
Sailjanand Pande Vs.Suresh Chandra Gupta
12. Mistake.
Ransom Vs. Kitner
____________________
1. Explain Volenti Non fit injuria as a defence for tortuous liability with exceptions.
2. “Harm suffeed voluntarily does not constitute a legal injury and is not actionable”. Examine
the scope of this rule.
3. Explain the doctrine of “volenti non fit injuria” with various exceptions.
________________
1. Volenti non fit injuria. (Consent or leave)
Consent of the claimant or Plaintiff:-
Where the claimant has expressly or implicitly consented to the presence of the sources of
danger and there has been no negligence on the part of the defendant, the defendant is not
liable.
In case of volenti-non-fit injuria, i.e., where the plaintiff has consented to the accumulation of
dangerous thing on the defendant’s land, the liability under the rule of Rylands Vs. Fletcher
does not apply.
Carstair Vs. Taylor:- (1871).
Facts:- The plaintiff hired ground floor of a building from the defendant. The upper floor of
the building was occupied by the defendant himself.
Water on the upper floor leaked without any negligence on the part of the defendant and
injured the plaintiff’s good on the ground floor.
Judgement:- As the water had been stored for the benefit of both the plaintiff and the
defendant, the defendant was held not liable.

2. Default of the Claimant or Plaintiff’s own default:-

If the damage is caused solely by the act or default of the claimant himself, there is no remedy
for him.
In Ponting Vs. Noakes (1849).
Facts:- the Plaintiff’s horse intruded into the defendants (property), land and died after having
nibbled the leaves of a poisonous tree there.
Judgement:- it was held the defendant was not liable because damage would not have
occurred, but for the horse’s own intrusion to the defendant’s land.
The rule in Rylands Vs. Fletcher did not apply to the case for the two reason, i.e.,
 1. That there was no escape.
2. The cause for such escape is not by the plaintiff’s own default.

3. Act of God (Vis Major):-

An event which directly and exclusively results from natural causes without any human
intervention, caused by some super natural force, that could not been prevented by the
exercise of foresight or by the exercise of caution may be called an Act of God, or caused by
some super natural force, then the defendant will not be held liable.
Act of God includes those consequences which are occasioned by elementary force of nature,
that are unconnected with the agency of man. E.g., Storm, tempest, extraordinary rainfall,
extraordinary severe frost(ice ball)etc.,
Nicholas Vs. Marsland: - (1876)
Facts of case: - The defendant created artificial lakes on his land by damming up a natural
stream. The year there was an extraordinary rainfall, heaviest in the human memory, by
which the stream and the lakes swelled so much that the embankments constructed for the
artificial lakes, which were sufficiently strong for an ordinary rainfall, gave way and the rush of
water down the stream washed away the plaintiff’s four bridges.
The plaintiff brought an action to recover damages for the same.
Judgment: - It was held that the defendants were not liable under the rule in Rylands Vs.
Fletcher, because it was found to be no negligence on the part of the defendants, but the
accident in this case had been caused by the act of God.

4. An “inevitable accident” or “unavoidable accident”:- which could not possibly be

prevented by the exercise of ordinary care, caution and skill.
It is an accident is physically unavoidable.
It does not apply to anything which either party might have avoided,
Eg:- a man carrying fire arm, or driving a horse, the duty is to use to reasonable care not
harm to others, if accidently injures, he has to prove that it was due to inevitable accident.
Holmes Vs. Mather (injury to runaway horses) (1875):-
Facts of case:- The defendants horses while being driven by his servant on public highway.
The horse ran away by the barking of a dog and became so unmanageable that the servant
could not stop them, but could guide them to some extent.
While unsuccessfully trying to turn to a corner safely, the servant guided them so that without
his intending it they knocked down and injured the plaintiff who was in the high way.
Judgment:- It was held that no action was maintainable by the plaintiff by the servant had
done his best under the circumstances.

In Brown Vs. Kendall. (1850)

Facts of case:- The plaintiff and the defendant’s dogs were fighting. While the Defendant
was trying to separate them, he accidentally hit the plaintiff in his eye, who was standing
nearby. The injury to the plaintiff was held to be the result of pure accident.
Judgement:- The Plaintiff was not held liable to pay compensation to the defendant, as no
action could lie against him.

5. Necessity:- The defence of necessity is based on the maxim: ‘Salus popui supirme lex’
which means the welfare of the people is the supreme law.
An act causing damages, in an act done under necessity to prevent a greter evil is not
actionable, even though harm was caused intentionally.
Ill:- Throwing goods overboard, a ship to slighten if for saving the ship or persons on board the
ship Or Pulling down a house to stop a further spread of fire are its common examples.
Similarly, it would not be actionable to pull out a drowning person from water.
Or … Force for a competent surgeon to perform an operation of an unconscious person to
save his life.
1. Leigh Vs. Gladstone (1909):- Forcible feeding of a hunger striking prisoner to save her was
held to be a good defence to an action for battery.
2. Cope Vs. Sharpe (1965) :- The defendant entered the plaintiff’s land to prevent the spread
of fire to the adjoining land over which the defendant’s master had shooting rights.
Judgement:- It was held that the defendant was not liable for trespass,
As the defendant’s act was considered to be reasonable necessary to save the game from real
and imminent danger.
 There are three classes of cases to which the defence of necessity applies,
a) Cases of public necessity.
b) Cases of private necessity.
c) Cases where assistance is given to third person without his consent as a matter of necessity.

6. Private Defence:- The law permits use of reasonable forece to protect one’s person or
property.
As even person has a right to defend or to protect his own body or property against an
unlawful harm.
If the defendant uses the force which is necessary for self-defence, which may even extend
defence to a wife or husband, a parent or child, or master or servant, he will not be liable for
the harm caused thereby. The use of force is justified only for the purpose of defence. There
should be imminent threat to the personal safety or property.
Ill:- A would not be justified in using force against B, merely because he thinks that B would
attack him some day, nor can the force be justified by the way of retaliation(tit, vengeance)
after the attack is already over.
Ramanuja Mudali Vs. M. Gangan:-
The defendant, a land owner had laid some live electric wire on his land. The plaintiff while
crossing it at 10p.m. in order to reach his own land, received a shock from the wire and
sustained injuries. The defendant had given no visible warning about such wire.
Judgement:- therefore, the defendant was held liable for the injuries caused to the plaintiff.
Creswell Vs. Sirl:- (1948)
Where the defendant was passing by the plaintiff house and the plaintiff’s dog ran out,
chasing and attacking the defendant’s sheep and pig, the defendant turning around, and
raising his gun, the dog ran away, and he shot the dog as too was running away, it was held
that the defendant was not justified in so doing.
The onus of proof is on the defendant to justify the preventive measure of shooting laying
down the following rules:-
1. At the time of shooting, the dog was either actually attacking the animals in question,
2. That either there was, in fact, no practical means other than shooting, of stopping the present
attack, or
3. The defendant having regard to all the circumstances in which he found himself, acted
reasonably in regarding the shooting as necessary.

7. Acts causing Slight Harm:- “the law does not take account to trifles ”de minimis non curat
lex.” That means, “nothing is a wrong of which a person or ordinary sense and temper would
not complain”.
This principle is also recognized in Sec. 95 of the IPC.
But the maxim does not apply where the tort is actionable per se.”
Sec. 95 act causing slight harm:- Nothing is an offence by reason that is causes, or that it is
intended to cause or that it is known to be likely to cause, any harm is so slight that no person
of ordinary sense and temper would complain of such harm.

8. Statutory Authority: - It may be noted here that Mistake (of law as well as fact) is usually
defence to liability in tort. It means authority or power is given by legislature to do certain
acts and if any torts is committed in the course of such act, the injured cannot recover any
damages except compensation.
Vaughan Vs. Taff Valde Rail Co.,(1860).
Facts of Case:- Sparks from an engine of the respondent’s railway company, which had been
authorized to run the railway, set fire to the appellants woods on the adjoining land.
Judgement:- It was held that since the respondents had taken proper casre to prevent the
emission of sparks and they were doing nothing more than what the statute had authorized
them to do they were not liable.
Further it said., “when the legislature has sanctioned the use of a particular thing, and it is
used for the purpose for which it was authorized….., the sanction of the legislature carries
with this consequence, that if damage results from the use of such thing…. The party using it
is not responsible.”

9. Parental and Quasi-Parental Authority:-

 Parents and persons in loco parenties have a right to punish a child to prevent from doing
mischief of himself or to other.
The exercise of force or restraint (hurdles) for the purpose of correction, chastisement of
training, whether it is
1. Be towards the child by its parent,
2. Be towards the pupil by the schoolmaster,
3. Be towards the lunatic by his custodian,
Gives no cause of action, provided it to be done reasonably and bona fide, and within
moderate limits,
For the purpose of correcting what is evil in the child, inflict moderate and reasonable
corporeal punishment.
Rex Vs. Newport (Salop) (1929):-
Facts of case: - a school master caned (administering five strokes with cane) a pupil for
smoking in the Street during term after having returned home.
Smoking by pupils was prohibited according to the rules of the school. It was held that in
sending the boy to the school, the father had authorized the school master to give reasonable
punishment for the breach of the school rules. It was also held that the punishment for the
breach of the school rules.

Judgement:- Justices: Wright, Ex part, The authority of a teacher to correct his student is not
limited only to the wrong which the student may commit upon the school premises but also
extend to the wrongs done by him outside the school. (eg. Smoking).

10.Acts of State:-
An act of State is an act which the king executes in the exercise of his absolute and
extraordinary power.
Any act done in exercise of sovereign power in relation to another state or subjects of another
states is called an act of state.
1. The act is done by the representative of a state.
2. The act is injurious to some other state or its subjects.
3. The act may either previously sanctioned or subsequently ratified by the state.

The doctrine of act of state was recognized in India quite early.

The Secretary of state in Council of India Vs. Kamachee Boye Saheba:-
The Raja of Tanjore who had an independent sovereign status, was under the protection of
the East India Company by virtue of a treaty. When the Rajah died issueless, the East India
Company declared the Raj to have lapsed to Baritish Government, Kamachee Boye Saheba,
the widow of Raja filed a suit against this act of the company. The Privy Council held that it
was an act of State for which municipal court cannot afford remedy.

11. Judicial and executive acts:-

The Judges should be at liberty to exercise their function independently and freely and
without favour and without fear of consequences.
Therefore, no action lies for acts done or words spoken, by a judge in exercise of his judicial
office, although they may be malicious.

The acts done or words spoken may not be in the honest exercise of his office.
The immunity granted to judicial officer have been extended to quasi-judicial authorities.
With respects to the functions exercisable by the quasi-judicial authorities they are obliged to
follow the principles of natural justice which consists of two rules, namely,
(i) rule against bias, and
(ii) Right of hearing.
Indian law: - In India this rule has been enacted in Judicial Officers’ Protection Act, 1850, but
no distinction has been maintained in this Act between superior and inferior courts.
But in Sailjanand Pande Vs.Suresh Chandra Gupta the Patna High Court did not extend the
protection to the Magistrate under the Judicial Officer’s Protection Act, 1850 and held him
liable for the wrong of false imprisonment as he acting mala fide, (bad intention) illegally and
outside his jurisdiction ordered the arrest of plaintiff.

12. Mistake: - Mistake, whether of fact or of law, is generally no defence to an action for tort.
Mistake mean when one commits an error in understanding or perceives wrongly. Thus no
defence to an action for tort when a person may commit a mistake of law or of a fact or when
a person willfully interferes with the rights of another person.

Ill:-
1. Entering into the land of another thinking that to be one’s own is trespass.
2. Taking away another’s umbrella a thinking that to be one’s own.
3. Driving of plaintiff’s sheep amongst one’s own herd, is trespass to goods.
4. Injuring the reputation of another without any intention to defame is defamation.

*******************

Difference between “malice-in-fact” and “malice-in-law”

Malice-in-fact:-
1. Malice-in-fact is an act done with ill will towards an individual.
2. Malice-in-fact depends upon motive.
3. Malice-in-fact means ill-will or any vindictive motive against a person.
4. It is also known as “Actual Malice” or “Express Malice ”
Malice-in-Law:-
1. Malice-in-law means an act done wrongfully and without reasonable and probable cause.
2. Malice-in-law depends upon knowledge.
3. Malice-in-law means the concurrence of mind with a wrongful act done without just cause
or excuse.
4. Malice-in-law is also known as “Implied Malice”.

Sl. No. Malice-in-fact Malice-in-law

1. It is also known as actual Malice It is also known as implied Malice.
or expressed Malice.
2. Malice in facts depends upon Malice in law depends up on
motive. knowledge.
3. When an act is done with ill-will But when an act is done wrongfully
motive towards an individual then and without reasonable and probable
it is called Malice-in-fact or cause, it is called Malice-in-law or
express-malice. implied malice. In malice-in-law, the
act done must be wrongful or legal
right must be violated.

4. In Malice-in-fact there must be ill- While in Malice-in-law there must be

will or any vindictive motive of the concurrence of mind with a wrongful
defendant against the plaintiff. act done by the defendant without
just cause of excuse.
 *********************

ASSAULT AND BATTERY

1. Discuss assault and battery with the help of decided cases.
2. Short Notes:- Assault and Battery.
3. Define “Assault” and distinguish it from “Battery”. State the circumstances in which
they may be justified.
4. Explain Assault and Battery. Refer decided cases.
Synopsis:-
1. Introduction.
2. Definition.
i. Assault.
Essential Elements.
Decided Case Law.
Innes vs. Wylie.
Stephens Vs. Myers
ii. Battery.
Essential elements.
Decided Case Law.
Innes vs. Wylie.
Stanley vs. Powell.
Cherubin Gregory vs. State of Bihar.
3. Differences between the Assault and Battery.
4. Defenses to an action for Assault and Battery.

Introduction:-
Assault and Battery, in most jurisdictions, is a crime committed, when.
a. When a person attempts to physically harm to another person, and
b. Acts in a way that causes the victim to fear that he will be harmed.
While assault and battery were traditionally classified as two very distinct crimes.
Modern law pair them together as an one offense.

-: ASSAULT:-
Assault, “is a reasonable apprehension in the mind of plaintiff of the infliction of battery on
him by the defendant”.
Essential Elements of Assault:-
1. There must be threat to apply force.
2. The act will put reasonable person in fear of battery.

Innes Vs. Wylie:-A policeman unlawfully prevented the plaintiff from entering into the
club premises. It was held that the policeman was entirely passive motionless like a door or
wall to prevent from entering the room.
Judgment:-There was no assault.

If a person advances in a threatening manner to use force there is an assault. As in…..,

Stephens Vs. Myers:- The plaintiff was the Chairman at a church meeting, defendant also
sat on the same table. In an angry discussion, the defendant advances towards
Chairman with clinched fist saying that he will pull the Chairman out of the chair. But was
stopped by the Churchwarden.
Judgment: - Here the defendant was held liable for assault.

-:BATTERY:-

Battery is a “intentional application of force to another person without any lawful

justification”.
Essential Elements of Battery:-
1. There should be use of force.
2. The same should be without any lawful justification.

1. There should be use of force.

Mere touching of another’s body without any lawful justification amounts to battery.
The force may be used through any objects like stick, bullet, throwing of water, splitting on
man’s face or making person fall down by pulling his chair.

Mere passive obstruction however cannot be considered as the use of force.

Innes Vs. Wylie:-A policeman unlawfully prevented the plaintiff from entering into the
club premises. It was held that the policeman was entirely passive motionless like a door or
wall to prevent from entering the room.
Judgment:-There was no battery.

2. Without any lawful justification:-

It is essential that use of force should be intentional and without any lawful justification.
Harm voluntarily suffered by a person is not battery, as ‘volentinon fit injuria’ is a complte
defence.
Similarly, touching of a person in a friendly way to draw his attention to something is no
battery.

Harm which is unintentional is not actionable.

Stanley Vs. Powell.:- Powell, who was member of shooting party fired at pheasant, but
pellet (bullets in gun) from gun glanced off a tree and accidentally wounded Stanely who
as another member of shooting party.
Judgement:- It was held Powell is not liable as he had no intention to fire at Stanley.

Cherubin Gregory Vs. State of Bihar:- It was held that fixing naked live wire, without
due warning across the passage of the latrine to keep the trespassers away from the latrine
and thereby causing the death of trespassers was actionable.
Judgement:- It was that the State of Bihar was held liable as because fixing naked live
wire without any notice was an intentional act.
ASSAULT BATTERY
1. Every assault does not include 1. Every battery includes the assault. In
battery. fact, battery is an aggravated form
of assault.
2. For an assault a mere apprehension 2. For a battery there must be an
of danger is sufficient. actual application of physical force.
3. As Assault is attempt battery. 3. Battery is an aggravated assault.
4. There is an element of fear in 4. Since there is actual application of
assault. physical force in battery it is
considered more serious than
assault.
5. Actual contact is not necessary in 5. Actual contact is necessary in
assault. battery.

5. Defenses to an action for Assault and Battery:-

1. Self-Defence.
2. Defence of one’s property.
3. Expulsion of trespasser.
4. Retaking of Goods.
5. Exercise of parental or quasi-parental authority.
6. Leave and Licence.
7. Preservation of public peace.
8. Legal Process.

1. Self-Defence:- Self-defence or defence of one’s wife or husband, children, parents or

one’s master is always permissible.
This sort of self-defence is technically known as “ Son assault demense”, which means
that the act complained of was the effect of the plaintiff’s own attack.
The use of force is self-defence, would be legally permissible only if it conforms to
general two conditions, viz.,
I. It was not unnecessary, and
II. It was not disproportionate of the evil to be prevented.
For instance, if a person gently strikes another with a little stick on his
shoulder, it would not justify the latter to draw a sword and cut and hew the
other.
2. Defence of one’s property:- Assault in defence of possession of a house, or goods and
chattels is justifiable, provided no more force is used than is reaqsonably necessary.
3. Expulsion of trespasser:- If a man enters into or upon the property of another without
his permission and with force and violence, the owner is justified in turning him out
without a previous request to depart and may use such force as necessary, but if he
enters quietly, he must be first requested to retire before force can be used to turn him
out.
4. Retaking of Goods:- The rightful owner (or his servant by his command) may justify an
assault in order to repossess himself of land or goods which are wrongfully in the
possession of another, who refuses to deliver them upon request, so long as no
unnecessary violence is used.
5. Exercise of parental or quasi-parental authority:- force may be used for
chastisement or correction of a pupil, child, or apprentice, provided the force is not
excessive or unreasonable. A husband has, however, no such right over his wife.
6. Leave and licence:- A man cannot make a grievance of the harm to the chances of
which he has exposed himself with knowledge and of his free will, for example, boxing,
football, game etc., on the principle of volunti-non-fit injuria.
7. Preservation of public peace:- A person who disturbs a public worship or meeting
may, by reasonable force, be removed. Here also the force should not be more than what
the occasion demands.
It is just possible that the person unlawfully detained may have been set free by the time
the writ of habeas Corpus is disposed of. The courts hearing the petitions may grant
compensation as ancillary relief in such cases. This has been noted above in Rudul Shah
Vs. State of Bihar, and Bhim Singh Vs. State of J. & K, the Supreme Court granted such
compensation in writs of habeas corpus.
8. Legal Process: - Assault may be justified on the ground that it was done in serving legal
process, including search under the law.
**************

-:Mayhem:-
Short Notes

Modern uses of Mayhem is also called as ‘maim’.

The personal injuries not causing the death of a person, the most serious is what is known
as “Mayhem”.

When a person is deprived of any fighting lib, an action of Mayhem is maintainable.

In case, where it is not a fighting limb, which has been deprived of an action of only battery
is maintainable.

It has been held that the loss of feet, hands, legs, fingers or even castrating a person would
give rise to an action for Mayhem.

While the cutting of ears, or the nose would amount to disfigurement and not the loss of
fighting limb and therefore, gives rise only to an action of battery.

Thus, “the only set of mayhem is but an any of a man’s body whereby he is rendered less
able in a fighting or defending himself or to annoy his adversary”.
*****************
 -:False Imprisonment:-
1. Explain various defences available to a defendant in case of false imprisonment .
2. Explain “False Imprisonment” and state the defences to an action of false imprisonment.
3. Explain tort of false imprisonment. What are the remedies available against false
imprisonment?
4. What must a plaintiff prove in order to succeed in an action for “false imprisonment”?
Consider the defences available to such an action.
5. Write a note on false imprisonment.
____________

Synopsis:-
1. Meaning.
2. Definition.
3. The Essential required to constitute this wrong are.
a) Mee Vs. Cruikshank.
b) Herring Vs. Boyle:-
c) Herring Vs. Boyle
4. The Exceptions.
a) Self- Defence.
b) Consent, Volenti non fit injuria operates or leave and licence
c) Preservation of public peace or Preventing breach of peace or making lawful arrests
or putting down a tort.
d) Escape from lawful custody.
e) Confinement of lunatics.
f) Assisting officers of law.
g) Exercise of parental or quasi-parental authority.
h) Public authority.
_______________

False Imprisonment:-

Meaning:-
It is an intentional tortuous act.
The plaintiff must show that the defendant intended to confine him.

The tort of “false imprisonment” is defined as,

1) “the intentional infliction of confinement or unlawful obstruction or deprivation of freedom
from restraint of movement”.
2) False Imprisonment consists of, “the imposition of a total restraint from some period,
however short, upon the liberty of another, without sufficient lawful justification”.

To constitute this wrong, imprisonment in the ordinary sense is not required.

When a person is deprived of his personal liberty whether by being confined within the four
walls or by being prevented from leaving the place where he is, it is false imprisonment.

If a man is restrained, by a threat of force from leaving his own house or an open field,
there is false imprisonment.

The Essential required to constitute this wrong are:-

1. There should be total restraint on the liberty of a person.

2. It should be without any lawful justification.

1. Total restraint:-

Under crime the restraint may be total or partial, the same is actionable.

Sec. 339 of I.P.C. -> partial restraint= i.e., wrongful restraint.

Sec. 340 of I.P.C. -> total restraint = i.e, wrongful confinement.

Sec. 339 of I.P.C. -> partial restraint= i.e., wrongful restraint.

When a person is prevented merely from going to a particular direction where he has a right to
go it becomes wrongful restraint or partial restraint.

Illustration: - A’ not believing in good faith obstructs a path along which Z’ has a right to
pass. A wrongfully restrains Z.
i.e., prevented merely from going to a particular direction where he has a right to go, it is
“wrongful restraint”.

Sec. 340 of I.P.C. -> total restraint = i.e, wrongful confinement.

When a person is prevented from going out of a certain circumscribed limits,

“Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceeding beyond certain circumscribing limits”.
Illustration:-
(1) A’ causes Z’ to go within a walled space and locks Z’. Z’ is thus prevented from proceeding
in any direction beyond the circumscribing line of wall. A’ Wrongfully confines Z’.

(2) A’ places men with fire-arms at the outlets of building, and tells Z’ that they will fire at Z if
Z attempts leave the building. A’ wrongfully confines Z’.

Under Civil Law or Tort, the position is different.

The torts of false imprisonment, is constituted when there is a total restraint.

To constitute this wrong, a person must have been completely deprived of his liberty to
move beyond certain limits.

If a man is prevented from going to a particular direction but is allowed to go back, there is no
false imprisonment.

For false Imprisonment, it is not necessary that a person should be imprisoned in a jail or
confined within the four walls of a buildings.

Detention may be even on a highway, or in a moving object like a bus or a train.

The total restraint results in false imprisonment, however short its duration may be.
Case law:-
Mee Vs. Cruikshank:-
Facts of case:- After his acquittal, a prisoner was taken down to the cells and detained there
for a few minutes, while some questions were put to him by the warders.
Judgement:- It was held as false imprisonment.

Means of escape:- if there are intelligible means of escape, the restraint cannot be termed as
total and does not constitute false imprisonment.
For instance if the captive is a blind man or a child, he should be in a position to locate the
means.
The means also provide a reasonable way of getting out of detention.

Knowledge of the plaintiff:-

There has been a difference of opinion on the point whether the knowledge of the
plaintiff, that there has been restraint on his freedom or not. It is essential to constitute the
wrong of false imprisonment.

Case Law:-
Herring Vs. Boyle:-
Facts of case:- Schoolmaster wrongfully refused to permit a school boy to go with his mother
unless the mother paid an amount alleged to be due from him.
The conversation between the mother and school-master was made in absence of the boy and
he was not cognizant (knowledge) of the restraint.
Judgement:- It was held under the case that such knowledge is essential.

Judgement in Meering Vs. Grahame-

White Aviation Co., it has been held that the knowledge of imprisonment is not an essential
elements for bringing an action for false imprisonment. Therefore the wrong could be
constituted even without a person having the knowledge of the same.

But according to Atkin, L. J., “It appears to me that a person could be imprisoned without his
knowing it.
I think that a person can be imprisoned,
1. While he is at sleep.
2. While he is unconscious,
3. While he is unconscious , and
4. While he is a lunatic.

But those are cases where it seems to me that the person might properly complain if he was
imprisoned, though the imprisonment began and ceased while he was in that state.

Of course, the damages might be diminished and would be affected by the question whether
he was conscious of it or not.

Defences to an action for False Imprisonment:-

1. Self- Defence.
2. Consent, Volenti non fit injuria operates or leave and licence
3. Preservation of public peace or Preventing breach of peace or making lawful arrests or
putting down a tort.
4. Escape from lawful custody.
5. Confinement of lunatics.
6. Assisting officers of law.
7. Exercise of parental or quasi-parental authority.
8. Public authority.

1. Self-Defence:- Self-defence or defence of one’s wife or husband, children, parents or

one’s master is always permissible.
 This sort of self-defence is technically known as “ Son assault demense”, which means that
the act complained of was the effect of the plaintiff’s own attack.
The use of force is self-defence, that should not exceed that which is reasonably required in
the circumstances.

2. Consent, Volenti non fit injuria operates or Leave and licence:- A man cannot make
a grievance of the harm to the chances of which he has exposed himself with knowledge
and of his free will, for example, boxing, football, game etc., on the principle of volunti-non-
fit injuria.

3. Preservation of public peace or Preventing breach of peace or making lawful

arrest or putting down a tort:- A person who disturbs a public worship or meeting may,
by reasonable force, be removed. Here also the force should not be more than what the
occasion demands.
It is just possible that the person unlawfully detained may have been set free by the time
the writ of habeas Corpus is disposed of. The courts hearing the petitions may grant
compensation as ancillary relief in such cases. This has been noted above in Rudul Shah Vs.
State of Bihar, and Bhim Singh Vs. State of J. & K, the Supreme Court granted such
compensation in writs of habeas corpus.
4. Escape from lawful custody:- Where the plaintiff had escaped from lawful custody.
5. Confinement of lunatics:- Where the plaintiff was in such a state to be dangerous to
himself and others.
6. Assisting officers of law:- Where the defendant was acting in aid of the officers of law.
7. Exercise of parental or quasi-parental authority:- force may be used for
chastisement or correction of a pupil, child, or apprentice, provided the force is not
excessive or unreasonable. A husband has, however, no such right over his wife.
8. Public Authority:- The defence of public authority may be considered under the following
five heads.
(a) Judicial authority:- the general rule of immunity of Judicial Officers is well
settled in England and is laid down in India by the Judicial Officers Protection Act,
1850. No action will lie against the judge for false imprisonment or for any other
tort, if he acted within his jurisdiction or believe in good faith that he had
jurisdiction.
(b) The authority incident to the apprehension of criminals, suspects and
dangerous persons like lunatics:- the power of private persons and police
officers to arrest or confine such persons is recognized by the common law, but is
now-a-days defined by statutes to avid uncertainty.
(c) Authority in times of war and rebellion:- in times of war or rebellion the
powers of the Government and its officers to invade private rights are very large:
they can arrest, or confine or deport persons who are dangerous to the
prosecution of the war and can conscript men for active service.
(d) Expulsion of undesirable aliens and surrender for foreign criminals:- The
special powers of the State and its Executive Officers in the above matters are
now regulated by enactments like the extradition Act and cannot be invoked
apart from such Acts.
(e) Powers of imprisonment under Emergency Legislation:- Such powers
conferred in India, for instance, under the Defence of India Act, and in England
under the Defence of the Realm Acts.

**************
 -:NEGLIGENCE:-
1. What is negligence? Discuss the important features of negligence with suitable cases.
2. “In negligence, liability for the consequences of the wrong is limited by the bounds of
reasonable foresight”. Discuss.
3. Explain the ingredients of tort of Negligence with the help of decided cases?
4. Define Negligence. Explain the important essential legal duty to take care.
5. Explain “Res Ipsa Loquitur”.

Synopsis:-
1. Introduction .
2. Broader classification of negligence.
3. Meaning, Definition and Theories of negligence.
4. The essential elements in determining the liability for negligence
I. The defendant owes a duty a care towards plaintiff.
Case Law: Donoghus Vs. Stevenson.
i. Duty depends on reasonable fore see ability of injury
Plasgraf Vs. Long Island Railroad Co. and American Case
ii. No liability when injury is not fore seeable:-
Glasgow Corp. V. Muir.
iii. Reasonable fore see ability does not mean remote possibility:-
Bolton Vs. Stone
II. The defendant made a breach of that duty to take care,
Case law: Xavier Vs. State of Tamil Nadu
1. The importance of the object to be attained.
1. K. Nagireddi Vs. Government of Andra Pradesh.
2. The magnitude of risk:-
Kerala state Electricity Board Vs. Suresh Kumar:-
3. The amount of consideration for which services etc. are offered:
Klaus Mitelbachert Vs. East India Hotels Ltd:-
III. The plaintiff suffered damage as a consequence thereof.
State of Assam Vs. Abdul Halim and others.
Can damages of tort be recovered through a writ Petition? Case
law: Fakir Chand Vs. State of Assam.
Exception to the Rule that the burden of proving negligence is on the plaintiff:-

(For Short Notes)

1. “Res Ipsa Loquitur”.
Explain “Res Ipsa Loquitur”.
Case Law:- Pushpabai Purshottam Udeshi Vs. M/S. Ranjit. AIR 1977 SC 1785.
a. Conditions for application of the maxim Res Ipsa Loquitur. As follows.
Management or control of the defendant or his servants.
Case Law:-
1. Municipal Corporation of Delhi Vs. Subhagwanti. A.I.R. 1966 SC 1975 at p.1752.
2. Syed Akbar Vs. St of Karnataka. A.I.R. 1979 SC 1848
b.Accident is such as in ordinary course of thing does not happen if those who have the
management with proper care,
Case Law:- Oriental Fire and General Insurance Co. Ltd. Vs. Smt. Narayanibai and
others- AIR 1984 p 47.

2. Contributory Negligence:
Case Law:- Butterfield Vs. Forrester:- (1809) 11 (East.60).
 ___________________

1. Introduction:-
Apart from a mere act of a person is not enough to create defendants liability. Presence
of Mental Elements is also important or essential under Law of Torts (Wrongs) or Crime

Based on above principal,

Under law of torts we have classified three (3) main types of torts:-
a. Negligence.
b. Strict Liability.
c. Intentional torts.

2. Broader classification of negligence:-

“Negligence” in the Law of Torts
Two meanings are ascribed
it is classified into two
on the basis of its committing

an independent tort on the mode of committing

certain torts.
Eg:- a negligence may mean a mental eg:- trespass and nuisance
Element in the tortuous liability or it may
mean an independent tort.

3. Meaning, Definition & Theories of Negligence :-

Meaning of Negligence,
It is a breach of legal duty to take care resulting in damage to the plaintiff.

Negligence is a mental element in the torts.

Based on the two meanings ascribed to the word “Negligence” has given rise to
two .competing theories:-
1. The Subjective theory:- based upon mental element in the tortuous liability.
2. The Objective theory:- based upon the view that, ‘Negligence’ is an independent
torties act.

Thus, negligence may mean a mental element in the tortuous liability or it may mean an
independent act.

In this sense, negligence has been defined as, “the breach of legal duty to take care
which results in damage, undesired by the defendant to the plaintiff”.

Therefore, “Negligence is a breach of legal duty to take care resulting in damage to the
plaintiff”.

This definition of negligence can be divided into four component parts that plaintiff must
prove to establish negligence.

This definition of negligence can be divided into four component parts that plaintiff must
prove to establish negligence.

The legal burden of proving these elements falls upon the plaintiff.
4. The essential elements in determining the liability for negligence are:-
1. The defendant owes a duty a care towards plaintiff.
2. The defendant made a breach of that duty ,
3. The tortfeasor (the third party or other private person) directly caused the injury.
4. The plaintiff suffered damage as a consequence thereof.

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

The meaning of the duty here it means, a legal duty rather than a mere moral, religious or
social duty.
There is no general rule of law defining such duty. It depends in each case whether a duty
exists.

One well-known case is Donoghus Vs. Stevenson.

Facts of the case:- “A” purchased a bottle of ginger beer from a Retailer for the appellant
(Mrs. Donoghue). Mrs. Donoghue consumed part of a drink containing a decomposed snail
while in a public bar in Paisely at Scotland and claimed that it had made her ill seriously
suffered in her health. The snail had not been visible, as the bottle of beer in which it was
contained was opaque.

Neither the friend who bought her to public bar, the supplier who served bottle for her nor
the shopkeeper who sold it, were unaware of the snail’s presence.

So, the manufacturer was Mr. Stevenson for damages for breach of contract because there
was no contract between them.

The defendant pleaded that he did not owe any duty of care towards the plaintiff.

The majority (3:2) ratio/ members of the House of Lords agreed that Mrs. Donoghue had a
valid claim, but disagreed as to why such a claim should exist.

Lord Mac Millan thought this should be treated as a new product liability case.

Lord Atkin argued that the law should recognize a unifying principle that we owe a duty of
reasonable care to our neighbours, for which he quoted the bible in support of his
argument, specifically that the general principle that “thou shalt love they neighbor”.

Negligence is a breach of legal duty to take care resulting in damage to the plaintiff.

Judgement:- The House of Lords held that the manufacturer owed her a duty to take care
that the bottle did not contain any noxious matter, and that he would be held liable on the
breach of the duty.

Plasgraf Vs. Long Island Railroad Co. an American Case:-

Facts of case:-The two servants of the defendants were trying to help a passenger to
board a train.
The passenger had a parcel with him.
Due to the negligence of the servants of the defendants, the parcel fell.
The package contained fireworks and it exploded and its shock knocked over some scales
about 25 feet away striking and injuring the plaintiff.
It was held that she could not recover damages.
Cardozo. C.J., observed:”The conduct of the defendant’s guard, if a wrong in its relation to
the holder of the package, was not a wrong in its relation to the plaintiff standing far
away.
Relative to her it was not negligence at all.
Nothing in the situation gave notice that the falling package had in it the potency of peril to
persons thus removed.
The Lordship further added that, “the law of Causation remote or proximate, is thus foreign
to the case before us.

Duty depends on reasonable fore see ability of injury:-

If the defendant could reasonably fore see injury to the plaintiff,

He owes a duty to prevent that injury and failure to do but omit’s to do that makes him
liable.

No liability when injury is not fore seeable:-

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

Reasonable fore see ability does not mean remote possibility:-

Bolton Vs. Stone:-

Facts of case:- A batsman hit a ball and the ball went over a fence and injured a person
on the adjoining highway.

This ground had been used for about 90 years and during the last 30 years. The ball had
been hit in the highway on about six occasions but no one had been injured.

The Court of Appeal held that the defendants were liable for negligence.

But the house of Lords held that the defendants were not liable on the basis of negligence.

II. The defendant made a breach of that duty to take care:-

Breach of duty means-> “non-observance of due care” which is required in a particular

situation.

The plaintiff must prove that the defendant committed a breach of duty to take or he failed
to perform that duty.

For ex:- It is the duty of the Banker while accepting any cheque for encashment to make
sure that the signatures are genuine.
If the Banker fails to perform this duty before allowing encashment of a cheque, he/it will
be liable for negligence.

Xavier Vs. State of Tamil Nadu:-

Facts of case:-The death of the petitioner’s son, who was blind, occurred due to the
negligence on the part of the respondents, in not maintaining electric poles efficiently.

Judgement:- The Madras High Court, therefore, awarded Rs 50,000/- as compensation

with interest at 12% per annum from the date of entertaining the writ petition till the date
of realization.

Standard of Care:-
Law requires, taking into consideration the three important points to determine the
standard of care.
 1. The importance of the object to be attained.
2. The magnitude (largeness) of the risk, and
3. The amount of consideration for which services etc. are offered.

1. The importance of the object to be attained.

K. Nagireddi Vs. Government of Andra Pradesh
Facts of case:- Due to construction of a canal by the State Govt., all the trees of the
plaintiff’s orchard died.
The plaintiff alleged that the government due to negligence did not cement the floor.
Judgment:- It was held that the construction of canal was of great importance and but not
cementing the floor was not negligence from the state government.

2. The magnitude of risk:-

Kerala state Electricity Board Vs. Suresh Kumar:-
Facts of case:- A minor boy came in contact with overhead electric wire which had sagged
to 3 feet above the ground, got electrocuted thereby and received burn injuries. The
electricity Board had a duty to keep the overhead wire 15 feet above the ground.
Judgment:- The Board was held liable for the breach of its statutory duty.

3. The amount of consideration for which services etc. are offered:

Klaus Mitelbachert Vs. East India Hotels Ltd:-
Facts of case:- A visitor, who got seriously injured when he took a dive in the swimming
pool, in a five star hotel.
Therefore the question of liability of a five star hotel arose to a visitor.
It was observed that there is no difference between a five star hotel owner and insurer so
far as the safety of the guest is concerned.
Judgement:- It was observed, a five star hotel charging high from its guests owes a high
degree of care as regards quality and safety of its structure and services it offers and
makes available.

III. Consequent Damage to the Plaintiff:-

It is also necessary that the defendants breach of duty must cause damage to the plaintiff.
The plaintiff has also to show that the damage thus caused is no too remote a consequence
of the defendant’s negligence.

State of Assam Vs. Abdul Halim and others:-

Facts of case:- 6 years old son of the appellant died, as a result of falling in a then feet
deep sewerage tank in the city of Madras.
The tank was not covered with a lid and was left open.
The High Court dismissed the writ petition on the ground that in writ jurisdiction it was
not possible to determine as to which of the respondents was negligent in leaving the
sewerage tank uncovered.
Judgment:- The Supreme court set aside the High Court judgment and directed the
Respondent No. 1. the State of Tamil Nadu to pay sum of Rs. 50,000 with interest at 12%
per annum from January 1, 1990 till the date of payment.
The Apex Court further observed that it will be open to the State of Tamil Nadu to take
appropriate proceedings to claim the said amount or any authority which might be
responsible for keeping the sewerage taken open.

Can damages of tort be recovered through a writ Petition?

Facts of case:- A woman died due to electrocution.

Judgement:- The learned Single Judge granted Compensation of Rs.70,000/- to the applet
Fakir.
This appeal was filed for enhancement of the amount of compensation.
The counsel for the respondent contented inter alia, that the appellant should have filed a
civil suit in order to prove the damages because the present case comes under “Tort”.
The Division Bench of the High Court rejected the said argument of the respondent and
observed that normally the cases arising out of tortuous liability are filed in a Civil Court but
once the learned single Judge has entertained the writ petition and asked for the
report from the chief electrical inspector and once a finding of negligence has
been recorded, there is no obstacle in the way of writ court to determine proper
compensation.

Judgment:- By the Division Bench of the High Court enhanced the amount of compensation
from Rs. 70,000/- to Rs.1,00,000/- (Rupees one lakh only)/-.

******************

(For Short Notes)

1. “Res Ipsa Loquitur”
Explain “Res Ipsa Loquitur”.
Synopsis :-
“Res Ipsa Loquitur”.
 Case Law:- Pushpabai Purshottam Udeshi Vs. M/S. Ranjit. AIR 1977 SC 1785.
Conditions for application of the maxim Res Ipsa Loquitur. As follows.
Management or control of the defendant or his servants.
Case Law:-
3. Municipal Corporation of Delhi Vs. Subhagwanti. A.I.R. 1966 SC 1975 at p.1752.
4. Syed Akbar Vs. St of Karnataka. A.I.R. 1979 SC 1848
Accident is such as in ordinary course of thing does not happen if those who have the
management with proper care,
Case Law:- Oriental Fire and General Insurance Co. Ltd. Vs. Smt. Narayanibai and
others- AIR 1984 p 47.

Exception to the Rule that the burden of proving negligence is on the plaintiff:-

Res Ipsa Loquitur:- It is the Latin Phrase, Res Ipsa Loquitur, means the thing itself
speaks.

Maxim Explained in case Pushpabai Purshottam Udeshi Vs. M/S. Ranjit Ginning and Pressing
Co. Pvt. Ltd., the facts were as follows:-
The rule that it is for the plaintiff to prove negligence, and
Not for the defendant to disprove it.
It is in some cases one of the considerable hardship to the plaintiff.
Because it may be that true cause of the accident lies, solely within the knowledge of the
defendant who caused it.
It will be for the defendant to establish that the accident happened due to some other
cause than his own negligence.
The plaintiff can prove the accident, but he cannot prove how it happened, so as to show its
origin in the negligence of the defendant.
This hardship is avoided to the great extent by the rule res ipsa loquitur (the thing speaks
for itself). In such, it is sufficient for the plaintiff to prove the accident and nothing more,
For there is a presumption of negligence according to this maxim.
In Pushpabai Purshottam Udesi Vs. M/s. Ranjit Ginning and Pressing Co. Pvt. Ltd., AIR
1977 SC 1785. The facts were as follows:-
Facts of case:- One Purshottam Tulsidas Udeshi met with his death in a motor car
accident, when he was travelling in the car of the defendants due to rash and negligent
driving by their Manager.
His wife and children brought the suit for recovery of damages.
Judgement:- the Supreme Court held:-
On the facts made out the doctrine (i.e., res ipsa loquitur) is applicable and it is for the
opponent to prove that the accident did not take place due to their negligence.
“This they have not attempted to do. In the circumstances we find that the
tribunal was justified in applying the doctrine.”

Thus the defendants were held liable for negligence.

The maxim does not embody any rule of substantive law nor a rule of evidence.
It is not rule of any kind, but simply the caption to an argument on the evidence.

Lord Shaw remarked that if the phrase had not been in Latin, nobody would have
called it a principle.

According to John G. Fleming, the maxim Res Ipsa Loquitur:- is

“no more than a convenient label to describe situations, where notwithstanding the
plaintiff’s inability to establish the exact cause of the accident,
The fact of the accident by itself is sufficient, in the absence of an explanation,
To justify the conclusion, that most probably the defendant was negligent which has caused
injury.

Conditions for application of the maxim Res Ipsa Loquitur. As follows.

1. Management or control of the defendant or his servants.

 2. Accident is such as in ordinary course of thing does not happen if those who have
the management with proper care, and
3. Absence of explanation.

Management or control of the defendant or his servants.

Case Laws:-

1. Municipal Corporation of Delhi Vs. Subhagwanti. A.I.R. 1966 SC 1975 at p.1752.

Facts of case:- The Clock Tower situated opposite of Town Hall in the main Bazar of
Chandni Chowk, Delhi, belonging to the appellant corporation, formerly the Municipal
Committee of Delhi. The clock tower was exclusively under the ownership and control of the
appellant or its servants. The clock tower was over 80 years old and the normal life of the
top storey could be only 40 or 45 years. The collapse was due to the thrust of arches on the
top portion and the mortar was deteriorated to such an extent that it was reduced to powder
without any cementing properties. There was neither any earthquake not storm nor any
other material event which was unforeseen and which could have been the cause of the fall
of the clock tower and many were killed as the result.
The present appeals arose out of 3 suits for damages filed by the heirs of three persons,
namely, Shri Ram Prakash, Shrimati Pauni Devi and Sant Gopal Chand who died as a result
of the collapse of the Clock Tower.
Judgement:- The Supreme Court held:”…………. The doctrine of res ipsa loquitur applies in
circumstances of the present case…. The mere fact that there was fall of the clock-tower
tells its own story in raising an inference of negligence so as to establish a prima facie case
against the appellant….. the legal position is that there is a specific obligation on the owner
of adjoining premises for the safety of the structures which he keeps beside the highway. If
these structures fall into disrepair so as to be of potential danger to passerby or to be a
nuisance, the owner is liable to anyone using the highway who is injured by reason of the
disrepair.
In such a case it is no defence for the owner to prove that he neither knew nor
ought to have known of the danger.
In other words, the owner is legally responsible irrespective of whether the damage caused
by a patent or a latent defect.”

2. Syed Akbar Vs. St of Karnataka. A.I.R. 1979 SC 1848.:-

Accident is such as in ordinary course of thing does not happen if those who have
the management with proper care,

Case Laws:-

1. Oriental Fire and General Insurance Co. Ltd. Vs. Smt. Narayanibai and others- AIR
1984 p 47.

Facts:- When the vehicle goes to the offside of the road and strikes against a tree the
principle of res ipsa loquitur is attracted.

Once this attracted the burden shifts on the owner and the driver:-
1. To show that the vehicle was properly maintained and
2. Due diligence was exercised in driving the vehicle.

It is not shown that there was any obstruction on the road or that there was an imminent
danger in front, which the driver had to avert.

In the circumstances of the case, presumption is that the vehicle must have been driven in
such a manner that it was not under the control of driver unless the owner rebuts this
presumption the claimants are bound to care and caution taken driver in driving the vehicle.

There is nothing to show that the accident occurred in spite of reasonable care and caution
taken by driver in driving the vehicle.
 The tribunal rightly held that the owner failed to discharge the onus of providing want of
negligence.
***************
-:Contributory Negligence:-
Synopsis:-
Contributory Negligence:
Case Law:- Butterfield Vs. Forrester:- (1809) 11 (East.60).

Contributory Negligence is an expression which implies that person who has suffered
damage, is also guilty of some negligence and has contributed towards the damage .

Under the old common law if the plaintiff’s negligence contributed in some degree to the
accident his action entirely failed even though the defendant was more at fault.

Case Law: - Butterfield Vs. Forrester:- (1809) 11 (East.60).

Facts:- the defendant placed a pole across a street and thus wrongfully obstructed the
street.
The plaintiff, while riding violently on the road in the dusk was overthrown by the pole and
injured. The pole could be seen at a distance of 100 yards. Although it was time to light
candles yet the pole could still be noticed.
Judgement:- The defendant was held liable because as pointed out by Lord Ellenborough .
C. J.:- “one person being at fault will not dispense with another’s using ordinary care of
himself.”
This common law rule caused great hardship in those cases where the plaintiff suffered the
greater loss although his negligence was not the major cause of the accident.
The common law rule caused great hardship in those cases where the plaintiff suffered the
greater loss although his negligence was not the major cause of the accident.
The common law rule continued till the Law Reforms (contributory negligence and enacted
provisions,
Which enabled the court to allow the claim by reducing it to such extent as the court thinks
just and equitable having regard to the claimant’s share in the responsibility for the damage.
It may be noted here that the said Act of 1945 of the British Parliament does not extend to
India and the Indian Parliament has not enacted a corresponding law.
The defence of contributory negligence that a plaintiff recovers any damage is on the face of
it illogical.
****************

Nuisance :-
1. Define ‘Nuisance’. Distinguish public and private Nuisance.
2. Define nuisance. Distinguish between private and public nuisance. When can a person bring
an action ofr public nuisance?
3. Explain ‘Nuisance’ with its essential characters and remedies available to it.
4. Explain the kinds of Nuisance, with decided cases.
5. Short notes on Public and Private Nuisance.
_____________
Synopsis:-
1. Introduction.
2. Meaning.
3. Definition.
4. Essential character of Nuisance.
5. Classification of Nuisance.
6. Difference between public and private nuisance.
 7. Conclusion.
_______________
1. Introduction:-
Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of
land. Acts interfering with comfort, health or safety. The interference may be any way,
e.g., noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or
disease producing germs.

2. Meaning of the term Nuisance:-

The word Nuisance is derived from the French word “nutre” and the Latin term
“nocere” which means ‘to hurt or to annoy”. Nuisance is commonly a continuing
wrong that is to say it commonly consists in the establishment or maintenance of some
state of things which continuously or repeatedly caused the escape of obnoxious things
on the Plaintiff’s land.

Case law:-
Ushaben Navinchandra Trivedi Vs. Bhagya Laxmi Chitra Mandri, (AIR 1978 Guj.
13)
Facts of the case:-
In this case the plaintiff filed a suit claiming apermanent injunction against the defendant
(producer, director, writer etc of the film) “Jai Santhoshi maa” restraining them from
exhibiting the cinema picture “Jai Santhoshi maa”.

The plaintiff stated that the persons having interest in religion and mythology will be
attracted by the picture and when the same is seen by them it will hurt the feeling as
goddess Saraswathi, Laxmi and Parvathi are depicted jealous.

Order:-The Gujarat High Court, dismissed the appeal and held that the defendants were
not liable, because the defendant have clarified at the very commencement of the film
that the entire film is imaginary and hence film is not a annoyance and the hurt to
religious feelings in not recognized as a civil actionable wrong.

3. Definitions:-
According to Winfield a tort of nuisance means, “An unlawful interference with a
person’s use or enjoyment of land or some right over or in connection with it”.

According to Blackstone a tort of nuisance, “As anything that worketh hurt,

inconvenience or damage”.
According to Salmond the wrong of nuisance consists, “ In causing or allowing
without lawful justification the escape of any deleterious thing from his land from
elsewhere into land in possession of the plaintiff,. Ex. Water, smoke, smell, fumes,
gases noise, vibrations, electricity, disease, germs, animals etc……” .

4. Essential of Nuisance:-
i. Nuisance is a consequential or indirect interference.
ii. Nuisance is caused by the Intangible objects such as gas, noise, smell, electricity,
smoke etc.,
iii. It is unlawful interference with plaintiff use or enjoyment of land or some rights.
iv. The action for nuisance special damages has to be proved.
v. Nuisance is of two kinds it is Private Nuisance and Public Nuisance.

5. Classification of Nuisance: -

The 2 main heads of Nuisances are based on the following two important factors.
1. Interference with personal discomfort.
2. Injury to the property.
Classification of Nuisance
 Private Nuisance Public Nuisance
OR
(Common Nuisance)

Public Nuisance:- is only actionable and indictable by the court in the form of declaration
and injunction. The person (plaintiff can bring an action for Public nuisance). When the
plaintiff proves that special damages are affected and can claim for remedies.

The legal definition of Public Nuisance is, “it is a nuisance (tort) which interferes with
public convenience or welfare…..”.

The term that is given to a violation of a public right that could lead to injury or harm to
the public in general.

A nuisance (tort) which interferes with public convenience or welfare.

A Public or Common Nuisance is one which materially affects the reasonable comfort and
convenience of public in general or a class of people.

Public Nuisance includes like carrying on an offensive trade, selling food unfit for
consumption, obstructing public highways and throwing fireworks about in the street.

Public Nuisance is interference with the members of the public in the exercise of their
common rights on the highways.

A Public Nuisance is a crime.

Sec. 268 of IPC:- Defines Public Nuisance, “as an act of illegal omission which causes any
common injury, danger or annoyance to the public or to the people in general who dwell or
occupy property in the vicinity or which must necessarily cause injury obstruction, danger
or annoyance to persons who may have occasion to use any public right”.

Case Law:-
Ramdas and sons Vs. Bhuwaneshwar Prasad Sigh (AIR 1973 pat 294)

Facts of the case:- In this case the defendants were registered partnership firm had taken
a contract for laying a pipeline and for that purpose they had dug out trenches by the side
of the road in front of a government hospital.

The trench was left open and it was neither fenced nor any light was placed by the side of
the trench as a security measure.

The plaintiff was going to the hospital at about 8.00 P.M. and he fell into the trench and
received injuries.

He filed a suit against the defendants.

Judgement:- the court held that defendant were held liable to compensation.

Essential elements of Private Nuisance:-

1. It is an act of illegal omission.
2. Such act of illegal omission of should cause danger or annoyance to the public or
people in general,
a. Who dwell,
b. Occupy property in the vicinity,
c. When such public have occasion to use any public right.
Private Nuisance:- It is only actionable and person can bring an action for private
nuisance when he proves normal damages affected and can claim for remedies in the form
of Compensation.
 It may be defined, “as unlawful interference with a person’s use or enjoyment of land, or
of some right over or in connection with it”.

Essential elements of Private Nuisance:-

1. Unreasonable or unlawful interference.
2. Such interference is with the use or enjoyment of land or some right over, or in
connection with the land, and
3. Damages.

6. Difference between Public Nuisance and Private Nuisance:

Sl. No. Public Nuisance Private Nuisance
1. It is a crime. It is a civil wrong.
2. It is also known as Common Nuisance. It is also known as Tortious Nuisance.
3. It is an infringement of public right. It is an infringement of a right of private
person.
4. An affected cannot be abated. It can be abated.
5. It is an interference with the rights of It is interference with the rights of a
public in general. particular person.
6. The lapse of time cannot legalize public In due course of time under certain
nuisance. circumstances the nuisance may be
legalized under the law of prescription.
7. In case of public nuisance a person may In case of private nuisance the injured
bring an action if special damages or person may bring an action.
injury is caused to the plaintiff.
8. Immediately Legalised. Aggrived party can legalized during the
prescribed date.
9. As it is a State’s duty the responsibility The plaintiff must prove the interference
lies upon the State to prove the with his enjoyment of land.
interference of defendant.
7. Conclusion:-
It can be concluded that nuisance, whether public or private both are a wrongful act
making another person inconvenience in enjoyment of property. The aggrieved party has
remedies to control the nuisance.
******************

Strict Liability & Absolute Liability:-

1. What is the rule in Rylands Vs. Fletcher? How can a defendant avoid his prima facie liability
under the rule?
2. Discuss the rule laid down in Rylands Vs. Fletcher and M. C. Mehta Vs. Union of India.
(Oleum gas leak)
3. Explain the principle of Strict Liability and distinguish it from absolute liability with relevant
case laws.
4. Discuss the concepts of strict liability and absolute liability.
5. What is strict liability? Discuss the exception to strict liability with appropriate cases.
6. Strict liability means, 1. Liability without fault, i.e., without intention or negligence. (the
defendant is held liable without fault).
__________
-:Strict Liability:-
Synopsis:-
1. Meaning.
2. Facts of case: - Rylands Vs. Fletcher:- (1866) L. R. 1 ex 265.
3. Rule laid down in the case.
4. The condition for application.
5. The Exceptions.
a. Default of the Claimant or Plaintiff’s own default.
Ponting Vs. Noakes (1849).
 b. Consent of the claimant or Plaintiff.
Carstair Vs. Taylor:- (1871).
c. Act of God.
Nicholas Vs. Marsland:- (1876)
d. Statutory Authority.
In Green Vs. Chelsea Waterworks Co. (1894).
e. Act of the third Party or Stranger.
M.P. Electricity Board Vs. Shail Kumar: A.I.R. 2002 S.C. 551
_______________
Meaning:-
“There may be cases wherein the defendant may be held responsible for the harm
caused to the plaintiff although the defendant neither intends the consequences nor is
guilty of negligence.”

5. This is known as strict Liability and the principle giving rise to such form of
liability was first propounded in Rylands Vs. Fletcher. (1866) L. R. 1 ex 265.

Strict liability has its origin in Rylands Vs. Fletcher case of 1866.
Facts of the Cases:-The plaintiff was working a coal mine, under a lease on the
neighboring land, of the defendant.
The defendant owned a mill. He himself was a mill owner. He wanted to erect a
reservoir for storing water and for this purpose, he employed a competent
independent contractor.
Contractor wile digging earth to construct the reservoir, he came across with some old
shafts and passages on the defendant’s land.
The shafts and passages communicated with the mines of the plaintiff, who was a
neighbor of the defendant and lessee of coal mines.
The contractor neither new nor suspected with this.
He filled them with earth.
The Contractors did not take any care/trouble to block/pack the said shafts and
passages. Which were discovered while excavating the land.
Shortly, after the construction of the reservoir. Even when it was partly filled with
water, the reservoir busted downwards and water leaked through the old shafts and
flooded to the mines of the plaintiff. So that the mine could not be worked. The Plaintiff
sued for damages.
In this case, there was negligence on the part of independent contractor but there was
no negligence on the part of the defendant.
The only question was whether the defendant would be liable for the negligence of the
independent contractor who was admittedly a competent engineer.
Judgement:- But the court held that the question of negligence is quite immaterial
and the appellant court laid down new basis of liability which was later approved by
House of Lords.

Rules laid down under Strict Liability:-

1. Dangerous thing:- The defendant need to have brought something into his land.
The word “dangerous” means here in this case it implies that it is likely to do any
sort of mischief if it escapes from the land.
The defendant will be liable when the thing that escaped from his premises was a
dangerous thing.
In the case Raylands Vs. Fletcher, the defendant “brought water into his land”. The
plaintiffs,”depended on this fact”.
2. Escape: - It is also essential that the thing causing harm must escape from the
premises of the defendant, and it should not be within the reach of the defendant
once it escapes.
 The Exchequer court came out clearly and stated that, “there must be escape of the
dangerous substance”.
So, the court ordered the defendant to pay compensation.
3. There must be something likely to do mischief:- the court of Exchequer
members stated that, if a person brings into his land something which is likely to do
mischief it is escaped (harassment), the person keeps it at his own peril, if he does
not do so, it is prima facie answerable for all the damage which is the natural
consequence of its escape.
4. Non-natural use to the land:- For the use to be non-natural, it must be some
special use that brings with it increased danger to other. It must not be the ordinary
use of land or use as is proper for the general benefit of community.
In our case, “the defendants brought in water to their land and this was not the
natural user of the land.”

“the rule laid down was that, the person, who for his own purposes, brings on his
land and collects and keeps there, anything likely to do mischief, if it escapes, must
keep it in at his peril (serious danger) and if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape.” So
the court ordered the defendant to pay compensation.

The condition for application of rule of Strict Liability:-

1. There must be non-natural use of land.
2. There must be a risk of damage in case of escape.
3. There must be escape such a thing hazardous to other person or property.
4. Such escape must result in causing loss or damage.

The Exceptions:-
There are certain exceptions to this rule, which are:-
1. Default of the Claimant or Plaintiff’s own default:-
If the damage is caused solely by the act or default of the claimant himself, there is no remedy
for him.
In Ponting Vs. Noakes (1849).
Facts:- the Plaintiff’s horse intruded into the defendants (property), land and died after having
nibbled the leaves of a poisonous tree there.
Judgement:- it was held the defendant was not liable because damage would not have
occurred, but for the horse’s own intrusion to the defendant’s land.
The rule in Rylands Vs. Fletcher did not apply to the case for the two reason, i.e.,
3. That there was no escape.
4. The cause for such escape is not by the plaintiff’s own default.

2. Consent of the claimant or Plaintiff:-

Where the claimant has expressly or implicitly consented to the presence of the sources of
danger and there has been no negligence on the part of the defendant, the defendant is not
liable.

In case of volenti-non-fit injuria, i.e., where the plaintiff has consented to the accumulation of
dangerous thing on the defendant’s land, the liability under the rule of Rylands Vs. Fletcher
does not apply.
Carstair Vs. Taylor:- (1871).
Facts:- The plaintiff hired ground floor of a building from the defendant. The upper floor of
the building was occupied by the defendant himself.
Water on the upper floor leaked without any negligence on the part of the defendant and
injured the plaintiff’s good on the ground floor.
Judgement:- As the water had been stored for the benefit of both the plaintiff and the
defendant, the defendant was held not liable.

3. Act of God:-
An event which directly and exclusively results from natural causes without any human
intervention, caused by some super natural force, that could not been prevented by the
exercise of foresight or by the exercise of caution may be called an Act of God, or caused by
some super natural force, then the defendant will not be held liable.
Nicholas Vs. Marsland: - (1876)
Facts of case: - The defendant created artificial lakes on his land by damming up a natural
stream. The year there was an extraordinary rainfall, heaviest in the human memory, by
which the stream and the lakes swelled so much that the embankments constructed for the
artificial lakes, which were sufficiently strong for an ordinary rainfall, gave way and the rush of
water down the stream washed away the plaintiff’s four bridges.
The plaintiff brought an action to recover damages for the same.
Judgment:- It was held that the defendants were not liable under the rule in Rylands Vs.
Fletcher, because it was found to be no negligence on the part of the defendants, but the
accident in this case had been caused by the act of God.

4. Statutory Authority:-
An act done under the authority of a statute exempts the defendant from tortuous liability.
However, the defence cannot be pleaded if and if there is any kind of negligence on the part of
the defendant.

In Green Vs. Chelsea Waterworks Co. (1894).

Facts of Case:- The defendant Co. had a statutory duty to maintain continuous supply of
water. A main belonging to the company burst without any negligence on its part. As a
consequence of which the plaintiff’s premises were flooded with water.
Judgement:- It was held that the company was not liable as the company was engaged in
performing a statutory duty.

5. Act of the third Party or Stranger:-

The rule of strict liability doesn’t apply when the damages are caused due to the act of a
stranger, i.e., a person who is not the servant nor is under the control of the defendant.
However, due care must be taken by the defendant to avoid the damages. If the act of the
stranger can be for seen by the defendant.

M.P. Electricity Board Vs. Shail Kumar: A.I.R. 2002 S.C. 551.
Facts of Case:- In this case one Joginder Singh, aged 37 years, who was riding on his bicycle
on the night of 23-8-1997 while returning from his factory.
A snapped live electric wire was lying on the road. There was rain and the road was partially
inundated with water. The cyclist could not notice the electric wire.
And as he came in contact with the same. He died instantaneously due to electrocution.
An action was brought against the M.P. Electricity Board by the widow and minor son of the
Joginder Singh.
Judgement:- In the decision of the Supreme Court, the rule of Strict liability was applied and
but it was observed that the Board had statutory duty to supply electricity in the are.
If energy so transmitted causes injury or death of a human being who gets unknowingly
trapped into it, the electric supplier shall be liable for the same.
The defect of the dangerous thing being an “act of the stranger”, who might have tried to
“pilfer” the electricity was rejected, because the act of the stranger was not allowed as the
same could have been foreseen, by the Electricity Board at any rate, the consequences of the
strangers act should have been prevented by the appellant Board.
********************
 -:Absolute Liability:-
Synopsis:-
1. Introduction.
2. Meaning.
3. Mc. Metha Vs. Union of India:- in 1987.
4. Rule laid down in the case.
5. Merits and Demertis of Absolute Liability.
6. Difference between the Strict Liability and Absolute Liability.

Introduction:-

Absolute Liability is based on the principle:-

“Sic utere tuo ut alienum non laedas ”
(Enjoy your own property in such a manner as not to
injure another person).

Meaning:-

Absolute Liability is the fundamental Principle of law.

“Absolute Liability is the application of Strict Liability but without the exceptions”.

Absolute liability is a standard of legal liability found in tort and criminal law of various legal
jurisdictions evolved in the famous case.

Mc. Metha Vs. Union of India: - in 1987.

Facts of the case:-
 Shriram Food and Fertilizers Industry a subsidiary of Delhi Cloth Mills Limited was
producing Caustic and chlorine. On December 4 th and 6th 1985, a major leakage of
Oleum Gas Took place from one of the units of Shriram Food and Fertilizers limited in
the heart of the Capital City of Delhi which resulted in the death of several persons that
one advocate practicing in the Tis Hazari Courts died.
  The leakage resulted from the bursting of the tank Containing oleum gas as a result of
the collapse of the structure on which it was mounted and it created a scare amongst
the people residing in that area.
 Hardly had the people got out of the shock of this disaster when, within two days,
another leakage, though this time a minor one took place as a result of escape of Oleum
Gas from the joints of a pipe.
 On 6th December, 1985 by the District Magistrate, Delhi under Sec. 133(1) of Cr.P.C.,
directed Shriram that within two days Shriram should cease carrying on the occupation
of manufacturing and processing hazardous and lethal chemicals and gases including
chlorine, oleum, super-chlorine, phosphate etc at their establishment in Delhi and within
7 days to remove such chemicals and gases from Delhi.
 At this Juncture M.C. Mehta moved to the Supreme Court to claim compensation by
filling a (PIL) Public Interest Litigation for the losses caused and pleaded that the closed
establishment should not be allowed to restart.

Judgement:-
 The Supreme Court took a hard and holds decision holding that it was not bound to
follow the 19th Century rule of English law. At a time when all these developments of
science and technology had not taken place and hence it could evolve a rule which is
suitable to prevail in the Indian Socio and Economy at the present day.
 Hence our Supreme Court evolved the rule of “absolute Liability”, as a part of Indian
Law in preference to the rule of Strict liability laid down in Rayland Vs. Fletcher,
 So Supreme Court evolved a new rule creating absolute liability for the harm caused by
dangerous substance.
 The Following statement of P. N. Bhagwati, the then Chief Justice of India, who
coined the rule of Absolute liability, which laid down
 the New Rules/principle may be noted.
1. Where an enterprise is engaged in a Hazardous or inherently dangerous activity, the
enterprise is strictly and absolutely liable to compensate all those who are affected by the
accident and such liability is not subject to any exceptions.
2. The enterprise cannot escape liability by showing it had taken all reasonable care and there
was no negligence on its part.
3. This principle, however, has been rarely applied since it was formulated.

Absolute Liability
Merits Demerits
1. It is stricter than strict liability 1. It leads to the gradual extension
and so industries involved in of the idea of fault to all torts.
hazardous activities cannot
take any plea.
2. It gives a background of 2. It has limited application only
support to certain relational limited to hazardous activity.
liabilities like in workmen’s
compensation where
compensation is given even
without fault.
3. It gives too much emphasis on
enterprise liability.

-:Difference between the Strict Liability and Absolute Liability:-

Sl. No. Absolute Liability Strict Liability
1. Hazardous or inherently dangerous Any other activities. It is also known as no
activities. fault liability.
2. Escape not necessary liability within Escape of dangerous things is absolutely
and outside premise. necessary.
3. No exceptions to the rule. Provides for exceptions.
4. Applies to non-natural and natural Applies only to non-natural use of land.
uses of land.
5. It is enterprises liability. It is individual liability.
 6. It is the application of Strict Liability Strict Liability means, liability without
but without the exceptions. fault. i.e., without intention or negligence.
(the defendant is held liable without
fault).
7. Absolute liability is a standard of Also known as, “no fault liability”
legal liability found in tort and which was evolved in Rylands Vs.
criminal law of various legal Fletcherv in 1866.
jurisdictions and evolved in the
famous case, “M. C. Metha Vs.
Union of India”, in 1987.

***********************

-:Vicarious Liability:-

1. Discuss “Vicarious Liability” with the help of decided cases.

2. What is vicarious liability? Under what circumstances a master is held liable for the tort
committed by his servant?
3. Discuss the liability of master for the acts of his servants.
4. How do you determine the Master-Servant relationship for the purpose of Vicarious
Liability?
5. What is ‘vicarious liability’? Explain with decided cases.
6. Discuss the liability of master for the wrongful acts of his servant.
______________
Synopsis:-
1. Introduction.
2. Meaning.
3. Modes of Vicarious liability.
4. Definition.
5. Vicarious liability is based on two important maxims.
6. Law of tort deal with vicarious liability in Liability arising out of special
relationship. The relationships are as follows,
I. The relationship is based on maxim, “ Qui facit per alium facit per se”, which
means, ‘an act of an agent is the act of principal’.
1. Principal and Agent.
a. Ormrod Vs Grosuille Motor service Ltd. (1953)
Owner escapes from the Liability.
b. Tirlok Singh Vs. Kailash Bhatia:- (1986)
c. SBI Vs. Shyama Devi:- (1978)
2. Firm and its Partners.
II. Another Maxim is “respondent superior” i.e., the superior must be made
responsible or let the principal be liable.
a. Master and Servant relationship with referred Cases.
Maharastra State Vs. Kanchan Mala Vijay Singh (1995)
a. Rickett’s Case:-
b. Maharastra State Vs. Kanchan Mala Vijay Singh (1995)
3. Owner and Independent Contractor.
Rayland Vs. Fletchers (1868)
4. Company and its Director.
5. Guardian and Ward or Father and Child.
7. Conclusion.
 _________________
1. Introduction:-

A general rule is that ‘a man is liable only for his own act’ , but there are certain
circumstances in which a person is liable for the wrong committed by others. This is called
‘Vicarious Liability’.

2. Meaning:-

So, the term vicarious liability denotes the Liability which “A” may incur to “C” for
damages caused to “C” by the negligence or other torts of “B”.

3. Modes of Vicarious liability:-

 Liability by ratification. Ex. Contracts, agreement.
 Liability arising out of special relationship.
 Liability for Abetment.

Law of tort deal with vicarious liability in Liability arising out of special relationship. The
relationships are as follows.
1. Principal and Agent.
a. Ormrod Vs Grosuille Motor service Ltd. (1953)
Owner escapes from the Liability.
b. Tirlok Singh Vs. Kailash Bhatia:- (1986)
c. SBI Vs. Shyama Devi:- (1978)
2. Firm and its Partners.
Hamlyn Vs. Houston and Company: - (1903)
2. Master and Servant.
c. Rickett’s Case:-
d. Maharastra State Vs. Kanchan Mala Vijay Singh (1995)
3. Owner and Independent Contractor.
Where the master will be held Liable for Independent Contractors or
Breach of duty.
a. Strict Liability:
Rayland Vs. Fletchers (1868)
b. Tarry Vs. Ashton (1876):- (Vicarious Liability on highway)
c. Bower Vs. Peats(1876):-
d. Ellis Vs. Sheffield Gas Consumer Company.
4. Company and its Director.
5. Guardian and Ward or Father and Child.
4. Definition:-
Salmond: In general a person is responsible for his own acts, but there are exceptional
cases in which the law imposes on him vicarious responsibility for the acts of another.
However blameless himself.

5. Vicarious liability is based on two important maxims:-

1. Qui facit per alium facit per se.
2. Respondent superior.

1. Qui facit per alium facit per se:-

It means ‘that he who acts through another is deemed in law as doing it himself’.
The master’s responsibility for the servant’s act had also its origin in this principle. The reason
is that a person who puts another in his place to do a class of acts in his absence.
 The master leaves the servant to determine, according to the circumstances that arise,
when an act of that class of work is to be done.
 Trust him for the manner in which it is done.
 Consequently the master is answerable for the wrong of the person so entrusted.
 For either in the manner of doing such an act or in doing such an act under
circumstances in which it ought not to have been done.
2. Respondent superior:-
Another Maxim is respondent superior i.e., the superior must be made responsible or let the
principal be liable. In such cases not only he who obeys but also he who command becomes
equally liable. These rules has its origin in the legal presumption that all acts done by the
servant in and about his master’s business are done by his master’s express or implied
authority and are in truth, the act of the master.
The master is answerable for every such wrong of the servant as is committed in the course
of his service, though no express command or privity is proved.

VICARIOUS LIABILITY IN LIABILITY ARISING OUT OF SPECIAL RELATIONSHIP:-

Principal and Agent:- If wrong is committed by an agent in Principle-agent relationship,

here principal will be held liable for his agent.
The relationship is based on maxim, “ Qui facit per alium facit per se”, which means, ‘an act of
an agent is the act of principal’.

Case law:-
I. Ormrod Vs Grosuille Motor service Ltd. (1953)
Facts:- the owner of the car ask his friend to drive his four wheeler for himself. When the Car
was driven by an agent (friend), he goes and hits to the bus.
Judgement:- The owner(principal) of the car is held liable. As because the law puts the
Special Responsibility upon the owner and it is used only for the purpose of owner.
 If the vehicle is hired then owner is not responsible.

 Owner escapes from the Liability.

II. Tirlok Singh Vs. Kailash Bhatia:- (1986)
Facts:- The owner will be out of station his younger brother takes motor cycle of owner
without the consent of brother and he meets with an accident.
Judgement:- In Court it was held that the younger brother was held liable and owners escapes
from the liability.
Vicarious liability is deemed to be of an agent but not the owner.

III. SBI Vs. Shyama Devi:- (1978)

Facts:- the plaintiffs husband gave some amount to his friend who is an employer of SBI for
depositing to his wife’s account in SBI who had an account there.
Plaintiff’s employee did not have proper receipt for depositing. It proved that he had
misappropriated it.
Judgement: The Plaintiff, (the account holders) claims that SBI is held Liable. The court held
that the SBI was not liable. The employee when committed fraud was not acting within the
scope of bank employee. But in his private capacity he has not deposited, so the employee
himself was held Liable and not the SBI.
SBI=Principal, Employee=Agent.

1. Firm and its Partners:- (Liability of the partner of each other’s torts)
In a firm 2 partners, if any one of the partners commits a wrongful act both the partners are
held liable to pay the compensation.
For the reason is Principle and Agent both of them are working for the purpose of Profit and
also liability is also equally contributed by both the partners.

Case Law:-
Hamlyn Vs. Houston and Company: - (1903)
Facts of case: - one of the two partners of the defendant’s firm, acting within the general
scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a
breach of contract with his employer (plaintiff) by divulging(reliving) secrets relating to his
employer’s business.
Judgement: - It was held that both the partners of the firm were liable for this wrongful act
(inducing breach of contract) committed by only one of them.

Master and Servant Relationship:-

 In order that the master may be held liable for the tort of his servant following conditions
should be fulfilled.
 The person committing the tort must be servant.
 The servant committed the tort while acting in the course of employment of his master.
 The act must be a wrongful act authorized by the master or a wrongful and unauthorized
mode of doing some act authorized by the master.
The relationship of Master and Servent is based upon another Maxim is “Respondent
Superior”, which means, ‘the superior must be made responsible or let the principal be
liable’.

Since the master to be liable for two things he must know:

1. Who is a Servant?
2. What is the course of employment?

1. Who is a Servant?
A servant may be defined as a person employed by another to do work for him on the terms
that he is to be subject to the control and directions of his employer in respect of the manner
in which his work is to be done.
A servant is thus an agent who works under the supervision and direction of his employer,
engaged to obey his employer’s order from time to time.

2. The course of employment:-

A servant is said to be acting in the course of employment if.
 The wrongful act has been authorized by the master.
 The mode in which the authorized act has been done is wrongful or
unauthorized.
Case law:
Rickett’s Case:-
Facts of the case:- in this case the driver of the omnibus asked the conductor to drive the
omni-bus the turn it round to make it face in the right direction for the next journey. But in
doing so an accident took place and severe damages also occurred.
Judgement:- It was held that master is liable because the driver was negligent in the
performance of the master’s work.

Maharastra State Vs. Kanchan Mala Vijay Singh (1995)

In this case the Hon’ble Supreme court has explained the meaning of “in course of
employment”. The court stated that the law is well settled that the master is vicariously liable
for the acts of his servants acting in the course of employment. The test is whether the act
was done on the owner’s business or that it was proved to have been impliedly authorized by
the owner.

3. Owner and Independent Contractor:-

Independent Contractor: - is a contractor who will work according to his own direction but
for the purpose of master. If a wrongful act is committed by the Independent Contractor then
master is not held liable.

Exception to the rule of Vicarious Liability of Master over the Independent

Contractor.
1. Where the master will be held Liable for Independent Contractors or Breach of
duty.
a. Strict Liability:
Case law:-
Rayland Vs. Fletchers (1868)
Facts of the Cases:-The plaintiff was working a coal mine, under a lease on the neighboring
land, of the defendant.
The defendant owned a mill. He himself was a mill owner. He wanted to erect a reservoir for
storing water and for this purpose, he employed a competent independent contractor.
Contractor wile digging earth to construct the reservoir, he came across with some old shafts
and passages on the defendant’s land.
The shafts and passages communicated with the mines of the plaintiff, who was a neighbor of
the defendant and lessee of coal mines.
The contractor neither new nor suspected with this.
He filled them with earth.
The Contractors did not take any care/trouble to block/pack the said shafts and passages.
Which were discovered while excavating the land.
Shortly, after the construction of the reservoir. Even when it was partly filled with water, the
reservoir busted downwards and water leaked through the old shafts and flooded to the mines
of the plaintiff. So that the mine could not be worked. The Plaintiff sued for damages.
In this case, there was negligence on the part of independent contractor but there was no
negligence on the part of the defendant.
The only question was whether the defendant would be liable for the negligence of the
independent contractor who was admittedly a competent engineer.
Judgement:- The Court held that there is no fault or negligency on the part of the defendant
but is held liable to pay the compensation to the plaintiff for the wrongful act
committed by the Independent Contractor.

Case Law:-
Tarry Vs. Ashton (1876):- (Vicarious Liability on highway)
Facts of the case:- the defendant had placed a contract to an Independent Contractor to
attach an overhanging lamp outside his house. The Contractor did the same. Due to lose
fitting it was fallen on the plaintiff’s head and caused serious injuries.
Judgement: - In Court held that the defendant was held liable though the work was
done by an Independent Contractor.

Bower Vs. Peats(1876):-

Facts of the case: - The defendant asked independent contractor to demolish the building.
The Independent Contractor while demolishing the building removes the slabs supporting the
neighboring house. Bower files suit against Peats. Peats say that he has not done it but the
independent contractor has done it.
Judgement: - Master, Mr. Peats, Defendant was liable to pay the compensation.

Implied Warrant :-

Case Law:-
Francis Vs. Cockrell (1870).
Facts of the Case: - the defendant got a race stand selected by company builders.
Defendant asks his contractor to connect it. In fact it was negligently connected, due to that it
falls and injuries to the plaintiff.
Judgement:- Defendant was held liable for negligency of contractor.

Incompetent Contractors:-

Master has failed to give proper Instruction to construct building etc.

Contract to be done itself is unlawful.

Ellis Vs. Sheffield Gas Consumer Company.

Facts of Case:- Contractor was employed by gas Company for keeping the bikes to
fill the gas on the road. It was against statute. Gas Company has appointed an
Independent Contractor Employed some persons to keep the gas pipes outside and
formed trenched up on the road.
The police gave a strong instruction not to keep on the road.
Plaintiff meets with an injury for that.

Conclusion:
It can be concluded that under the law of tort the master is liable for the wrongful acts
committed by his servant under the course of employment.
***********************

Difference between servant and Independent contractor.

DIFFERENCE
S SERVANTS INDEPENDENT CONTRACTOR

Employmen Covered by a number of federal and state Not covered by

t Laws employment and labor laws employment and labor laws

A potential contractor
normally interacts with the
person or department that
wants a certain service or
A potential employee completes an task completed. A potential
application that is handled by Human contractor might complete
Resources. The approved applicant a proposal. The contractor
receives a job offer. After a person accepts enters into a contract,
the position, the employer must ask for including a Statement of
additional information about the employee Work with the legal or
Hiring such as date of birth, marital status, and procurement section of the
Practice citizenship status. business.

Provides name, address,

Taxpayer Identification
Provides name, address, Social Security Number, and certification
Tax number, tax filing status, and number of about back up
Documents exemptions on a W-4 withholding on a W-9

Payer’s Tax
Reporting Reports payments of $600
Requireme Reports all money paid to the employee or more in a calendar year
nts during the tax year on a W-2 on a Form 1099

Reporting
to Other Reports for state and federal
Agencies Unemployment Insurance None

Value of Earns either an hourly rate or a salary A contract may be for a

Work or total amount. It could be
Contract for an hourly, daily, or
weekly amount that ends
on a specific date or a total
 DIFFERENCE
S SERVANTS INDEPENDENT CONTRACTOR

amount to be paid when

the job is completed.

Accounts Payable pays a

contractor after receiving
an invoice. The terms of
the contract or Statement
An employee pay period must remain the of Work dictate when
same unless formally changed. Pay periods payments are made, such
vary from one week to one month. Federal as upon completion of a
and state laws require that an employee be task or by periodic
paid on the normal pay date or earlier if the amounts. Contractors are
pay check is not negotiable on the normal not paid by payroll staff in
When Paid pay date, which can occur on holidays. most businesses.

-:Defamation:-
1. Define Defamation and explain with appropriate cases, the essential features of defamation.
2. Define Defamation. Discuss briefly the various defences available in an action for
defamation.
3. Explain the defences available in an action for defamation.
4. Discuss the essentials of defamation with the help of decided cases.
5. What is libel? Explain the essentials of libel.
6. What is libel? How it differs from Slander?
_____________
Synopsis:-
1. Introduction.
2. Meaning.
3. Definition.
i. Under Torts.
ii. Under Crime.
4. Exceptions or defences available in an action for defamation under sec. 499 of IPC itself.
5. Essential elements of defamation.
i. The statement must be defamatory.
(Intention to defame is not necessary)
Cassidy Vs. Daily Mirror Newspaper Ltd., (1929).
ii. Accusation preferred in good faith to authorized person.
Newstead Vs. London Express Newspapers Ltd
iii. They must be published.
Mahendra Ram Vs. Harnandan Prasad.
iv. The statement must be passed by the defendant.
6. Defences:-
1. Justification of truth.
Alexander Vs. North Eastern Railways :-(1885)
2. Fair comment.
3. Privilege which may be either absolute or qualified.

Introduction:-
The right of reputation is acknowledged as an inherent general right of every person.
As every man has a right to have his reputation preserved inviolate.

It is a jus in rem, it is a right good against the entire world.

A man’s reputation is his property, and if possible, more valuable, than other property.

Meaning:-
Defamation:- is injury to the reputation and reputation consists in the estimation in which
others hold him and not a man’s own opinion of himself.

Definition:-
Under Tort:-
Defamation, “is injury to the reputation of a person. If the person injures the reputation of
another, he does so at his own risk, as in case of an interference with the property. A man’s
reputation is his property, and if possible, more valuable, than other property”.

Under Crime.
Dixon Vs. Holden (1869).
Even under S.499 of the I. P. C:- speaks about this Defamation as one of the OFFENCE.
Whoever by words either spoken or by visible representations, makes or publishes any
imputation concerning any person intending to harm the reputation of him, except in the cases
hereinafter exempted, to defame that person.

Exceptions or defences available in an action for defamation under sec. 499 of IPC
itself:-
1. Imputation of truth which for the public good requires to be made or published.
2. Public conduct of public servants.
3. Conduct of any person touching any public question.
4. Publication of reports of proceedings of courts.
5. Merits of case decided in Court or conduct of witnesses and others concerned.
6. Merits of public performance.
7. Censure passed in good faith by person having lawful authority over another.
8. Accusation preferred in good faith to authorized person.
9. Importation made in good faith by person for protection of his or other’s interests.
10. Caution intended for good of person to whom conveyed or for public good.

Sec. 500- Punishment for defamation -> 2yrs of fine or both.

Sec. 501- Printing or engraving matter known to be defamatory- whoever prints or engraves
any matter, knowing that to be defamatory of any person, shall be punished with two years or
fine or both.
Sec. 502- Sale of printed or engraved substance containing defamatory matter- whoever sells
or offers for sale any printed substance containing defamatory matter knowingly, shall be
punished with two years of fine or both.

Essential elements of defamation:-

v. The words or statement must be defamatory.
vi. The words must refer to the plaintiff.
vii. They must be published.
viii. The statement must be passed by the defendant.

i.The Statement must be defamation:-

a. (Intention to defame is not necessary)
Cassidy Vs. Daily Mirror Newspaper Ltd., (1929).
Facts of case: - Mr. M. Cassidy (who is also known as Mr. M. Corrigan) was married to a
lady, who called herself Mrs. Cassidy or Mrs. Corrigan and was also known as lawful wife.
The defendants published in their newspapers a photograph of Mr. M Cassidy and Miss. ‘X’,
with the following words underneath, “Mr. M. Cassidy, the race horse owner, and Miss. ’X’
whose engagement has been announced.
Mrs. Cassidy sued the defendants for libel alleging that the innuendo (crank, quibble,
double meaning) was that Mr. Cassidy was not her husband and he lived with her in immoral
cohabitation, i.e., he did not live with her but occasionally came and stayed with her at her
flat.
The Court of Appeal held that the innuendo (crank,quibble, besaravagadu) i.e., injuring the
reputation of another without any intention to defame is defamation.

Judgement: - The defendants were held liable, as obvious innocence of the defendants was
no defence.
The plaintiff was known by her friends as the wife of Mr. Cassidy she pleaded that
statement implied that she was an immoral woman cohabiting with Mr. M. Cassidy damages
proved injury to her reputation on that ground and recovered £500 as damages.

ii. The statement must refer to the plaintiff:-

The plaintiff has to prove that, the statement, of which he complains, referred to him in an
action of defamation.
(It is immaterial that the defendant did not intend to defame the plaintiff) .

Newstead Vs. London Express Newspapers Ltd (1940)

Facts of case: - the defendants published an articles stating that ‘Harold Newstead, a
Comberwell man’ had been convicted of bigamy.
The story was true of Harold Newstead, a Camberwell barman,
But the action for defamation was brought by another Harold Newstead, a Camberwell
barber.
As the words were considered to be understood as referring to the plaintiff.
Judgement: - the defendants were held liable.

iii. The statement must be published.

Publication means making the defamatory matter known to some person other than the
person defamed, and unless that is done, no action for defamation lies.
Communication to the plaintiff himself is not enough because defamation is injury to the
reputation and reputation consists in the estimation in which others hold him and not a
man’s own opinion of himself.
a) Dictating a letter to one’s typist is enough publication.
b) Sending the defamatory letter to the plaintiff in a language supposed to be known to the
plaintiff is no defamation.
c) If a third person wrongfully reads a letter meant for the plaintiff, the defendant is not liable.
Illu: - When the father opened his son’s letter, or a butler opened and read a sealed
letter meant for his employer, there was no publication by the defendant and he was not
liable.
d) If a defamatory letter sent to the plaintiff is likely to be read by somebody else, there is a
publication.
There is a publication, if a defamatory letter sent to the plaintiff is likely to be read by
somebody else.
The defendant is liable even without a proof that somebody else read it, when the
defamatory matter is contained in a postcard or a telegram.
In case of telegram:-
It is read by the post officials who transmit and receive it.
In case of post card:-
There is high probability of the postcard being read by someone while in transmit.
a) If the matter is in a language which the addressee does not understand, or
Mahendra Ram Vs. Harnandan Prasad:-
Facts of case:- the defendant sent a defamatory letter written in Urdu to the plaintiff. The
plaintiff did not know Urdu and therefore the same was read over to him by a third person.
Judgement:- It was held that the defendant was not liable unless it was proved that at the
time of writing the letter in Urdu script, the defendant knew that the Urdu script was not
known to the plaintiff and would necessitate reading of the letter by a third person.

b) He is too blind to read it, or

 c) He could not hear, being a deaf man.
It does not fall under publication and hence the defendant is not liable.

There is defamation, when libelous letter addressed to the plaintiff, even though the
letter written in a language which the plaintiff does not understand along with the
knowledge of the defendant that such letter will be cut opened by his clerk or by his
spouse.

iv) the statement must be passed by the defendant.

Defences:-
The defences to an action for defamation are-
1. Justification of truth.
2. Fair comment.
3. Privilege which may be either absolute or qualified.

1. Justification of truth:- In a civil action for defamation, truth of the defamatory matter is
complete defence. Under the Penal Code, merely proving that the statement was true is no
defence. Sec.499 that besides being true, the imputation must be shown to have been
made for public good.
Imputation of truth which is for the public good requires to be made or published .
It is not defamation to impute anything which is true concerning any person, if it be for public
good that, imputation should be made or published.
Alexander Vs. North Eastern Railways :-(1885)
Facts of the case:-
The plaintiff had been sentenced to fine a £1 or14 days imprisonment in the alternative, for
travelling on a train without appropriate ticket.
The defendants published a notice stating that the plaintiff had been sentenced to a fine of £1 or
three weeks imprisonment in the alternative.
Judgement: - Held, the defendants were not liable, the statement being substantially accurate.

2. Fair comment:-
For this defence it is required:
a) It must be a comment i.e. an expression of opinion.
b) The comment must be fair.
c) The matter commented upon must be a public interest.

a) It must be a comment i.e. an expression of opinion

Fair comment is a defence by itself. The fact must first exist.

Meaning:- of Fair comment means, comments honestly believed to be true and it is not inspired
by any malicious motive.

b) The comment must be fair.

Fair comment:- comment in order to be fair, must be based upon the true facts.

Fact based upon untrue facts and invented facts are not fair. Fact cannot be invented, to make a
comment.

It is right of all citizens to make a fair comment on matters of public interest.

Whether a statement is a fact or a comment on certain fact. Depends only the language used or
the context in which that is stated.

Illustration: A’ says of a book published by Z’- “Z’s book is foolish; Z’ must be a weak man. Z’s
book is indecent, Z’ must be a man of impure mind”.
These are only comments based on Z’s book and A’ will be protected if he has said that in good
faith.
But if says- “ I am not surprised that Z’s book is foolish and indecent, for he is a weak and a
libertine”.
It is not a comment on Z’s book but is rather a statement of fact and therefore defence of fair
comment cannot be pleaded in such a case.

c) The matter commented upon must be a public interest

Caution intended for good of person to who conveyed or for public good
Public interest: - The matter commented upon must be of public interest.
Advertisement of Government departments, public company, courts, public institutions and local
authorities, public meetings, pictures, theatres, public entertainments, text books, novels etc.,
are considered to be a matters of public interest.

3. Privilege:-
There are certain occasions when the law recognizes that the right to reputation.
The law treats, such occasions to be “Privileges” and a defamatory statement made on such
occasions is not actionable.
PRIVILEGES

Absolute Privilege Qualified Privilege

1. Parliamentary 2. Judicial 3. State

Proceedings Proceedings Communications
I. Absolute Privilege:- No action lies for the defamatory statement even though the
statement is false or has been made maliciously with the view to the public interest
demands that an individual’s right to reputation should give way to the freedom of speech.
1. Parliamentary Proceedings:- Art. 78 (3) of the Constitution states, a member of both the
houses of Parliament is not answerable, shall not be liable in any court of law or cannot be
questioned in respect of anything said, or any vote given or the publication of any report,
paper, votes or proceedings under Article 105(2) of Indian Constitution or by him in
Parliament or in any committee thereof.
A similar privilege exists in respect of State Legislatures according to Article 194(2).
2. Judicial Proceedings:- According to the Judicial Officers Protection Act of 1850, has
given protection to the Judicial officers for words spoken or written maliciously, without any
justification or excuse and from personal ill-will and anger against the person defamed.
3. State Communications:- A statement made in the course of official duty,
a. By one officer of the State to another.
b. By one Minister to another, or
c. By a Minister to the crown.
Such privilege is also extended to reports made in the course of military and naval duties.

II. Qualified Privilege:- unlike the defence of absolute privilege. In this case it is necessary
that the statement must have been made without malice.
1. There must be an occasion for making the statement.
2. Provided such statement is made in discharge of a duty or protection of an interest.
Or
The publication is in the form of,
i. Report of parliament.
ii. Judicial, or
iii. Other public proceedings.

To avail this defence, the defendant has to prove the above points.
**************
 1. Define ‘Defamation’. Distinguish between ‘Libel’ and ‘Slander’.
2. Explain the difference between libel and slender. When Slender becomes ‘Actionable
per se’?
Synopsis:-
1. Introduction.
2. Meaning.
3. Definition.
4. Under Torts.
5. Under Crime.
6. Exceptions or defences available in an action for defamation under sec. 499 of IPC
itself.
7. Essential elements of defamation.
I. The statement must be defamatory.
(Intention to defame is not necessary)
Cassidy Vs. Daily Mirror Newspaper Ltd., (1929).
II. Accusation preferred in good faith to authorized person.
Newstead Vs. London Express Newspapers Ltd
III. They must be published.
Mahendra Ram Vs. Harnandan Prasad.
IV. The statement must be passed by the defendant.
8. Difference between Libel and Slander
________________
Introduction:-
The right of reputation is acknowledged as an inherent general right of every person.

As every man has a right to have his reputation preserved inviolate.

It is a jus in rem, it is a right good against the entire world.

A man’s reputation is his property, and if possible, more valuable, than other property.

Meaning:-
Defamation:- is injury to the reputation and reputation consists in the estimation in which
others hold him and not a man’s own opinion of himself.

Definition:-
Under Tort:-
Defamation, “is injury to the reputation of a person. If the person injures the reputation of
another, he does so at his own risk, as in case of an interference with the property. A man’s
reputation is his property, and if possible, more valuable, than other property”.

Under Crime.
Dixon Vs. Holden (1869).
Even under S.499 of the I. P. C:- speaks about this Defamation as one of the OFFENCE.

Whoever by words either spoken or by visible representations, makes or publishes any

imputation concerning any person intending to harm the reputation of him, except in the cases
hereinafter exempted, to defame that person.
Exceptions or defences available in an action for defamation under sec. 499 of IPC
itself:-
11.Imputation of truth which for the public good requires to be made or published.
12.Public conduct of public servants.
13.Conduct of any person touching any public question.
14.Publication of reports of proceedings of courts.
15.Merits of case decided in Court or conduct of witnesses and others concerned.
16.Merits of public performance.
17.Censure passed in good faith by person having lawful authority over another.
18.Accusation preferred in good faith to authorized person.
19.Importation made in good faith by person for protection of his or other’s interests.
20. Caution intended for good of person to whom conveyed or for public good.

Sec. 500- Punishment for defamation -> 2yrs of fine or both.

Sec. 501- Printing or engraving matter known to be defamatory- whoever prints or engraves
any matter, knowing that to be defamatory of any person, shall be punished with two years or
fine or both.
Sec. 502- Sale of printed or engraved substance containing defamatory matter- whoever sells
or offers for sale any printed substance containing defamatory matter knowingly, shall be
punished with two years of fine or both.

Essential elements of defamation:-

ix. The words or statement must be defamatory.
x. The words must refer to the plaintiff.
xi. They must be published.
xii. The statement must be passed by the defendant.

iv. The Statement must be defamation:-

b. (Intention to defame is not necessary)
Cassidy Vs. Daily Mirror Newspaper Ltd., (1929).
Facts of case: - Mr. M. Cassidy (who is also known as Mr. M. Corrigan) was married to a
lady, who called herself Mrs. Cassidy or Mrs. Corrigan and was also known as lawful wife.
The defendants published in their newspapers a photograph of Mr. M Cassidy and Miss. ‘X’,
with the following words underneath, “Mr. M. Cassidy, the race horse owner, and Miss. ’X’
whose engagement has been announced.
Mrs. Cassidy sued the defendants for libel alleging that the innuendo (crank, quibble,
double meaning) was that Mr. Cassidy was not her husband and he lived with her in immoral
cohabitation, i.e., he did not live with her but occasionally came and stayed with her at her
flat.
The Court of Appeal held that the innuendo (crank,quibble, besaravagadu) i.e., injuring the
reputation of another without any intention to defame is defamation.

Judgement: - The defendants were held liable, as obvious innocence of the defendants was
no defence.

The plaintiff was known by her friends as the wife of Mr. Cassidy she pleaded that statement
implied that she was an immoral woman cohabiting with Mr. M. Cassidy damages proved
injury to her reputation on that ground and recovered £500 as damages.

v. The statement must refer to the plaintiff:-

The plaintiff has to prove that, the statement, of which he complains, referred to him in an
action of defamation.
(It is immaterial that the defendant did not intend to defame the plaintiff) .
Newstead Vs. London Express Newspapers Ltd (1940)
Facts of case: - the defendants published an articles stating that ‘Harold Newstead, a
Comberwell man’ had been convicted of bigamy.
The story was true of Harold Newstead, a Camberwell barman,
But the action for defamation was brought by another Harold Newstead, a Camberwell
barber.
As the words were considered to be understood as referring to the plaintiff.
Judgement: - the defendants were held liable.

vi. The statement must be published.

Publication means making the defamatory matter known to some person other than the
person defamed, and unless that is done, no action for defamation lies.
Communication to the plaintiff himself is not enough because defamation is injury to the
reputation and reputation consists in the estimation in which others hold him and not a
man’s own opinion of himself.
e) Dictating a letter to one’s typist is enough publication.
f) Sending the defamatory letter to the plaintiff in a language supposed to be known to the
plaintiff is no defamation.
g) If a third person wrongfully reads a letter meant for the plaintiff, the defendant is not liable.
Illu: - When the father opened his son’s letter, or a butler opened and read a sealed
letter meant for his employer, there was no publication by the defendant and he was not
liable.
h) If a defamatory letter sent to the plaintiff is likely to be read by somebody else, there is a
publication.
There is a publication, if a defamatory letter sent to the plaintiff is likely to be read by
somebody else.
The defendant is liable even without a proof that somebody else read it, when the
defamatory matter is contained in a postcard or a telegram.
In case of telegram:-
It is read by the post officials who transmit and receive it.
In case of post card:-
There is high probability of the postcard being read by someone while in transmit.
d) If the matter is in a language which the addressee does not understand, or
Mahendra Ram Vs. Harnandan Prasad:-
Facts of case:- the defendant sent a defamatory letter written in Urdu to the plaintiff. The
plaintiff did not know Urdu and therefore the same was read over to him by a third person.
Judgement:- It was held that the defendant was not liable unless it was proved that at the
time of writing the letter in Urdu script, the defendant knew that the Urdu script was not
known to the plaintiff and would necessitate reading of the letter by a third person.

e) He is too blind to read it, or

f) He could not hear, being a deaf man.
It does not fall under publication and hence the defendant is not liable.

There is defamation, when libelous letter addressed to the plaintiff, even though the
letter written in a language which the plaintiff does not understand along with the
knowledge of the defendant that such letter will be cut opened by his clerk or by his
spouse.

iv) the statement must be passed by the defendant.

Defamation is classified into two types:-

Libel :- Defamation made in writing is called as Libel.
Slander:- Defamation made in oral is called as Slander.
Difference between Libel and Slander
Sl. No. Libel Slander
1. It is in written form. It is in oral form.
2. It is permanent. It is temporary.
3. It is both tort and offense. It is only tort.
4. It is actionable by itself (per se) It is not actionable by itself (per se)
5. Intention is easier to prove. Intention is not that easy to prove.
**************
 -:MALICIOUS PROSECUTION:-
1. Elaborate on Malicious Prosecution.
2. What is Malicious Prosecution? Explain its essentials.
3. Define Malicious prosecution? Explain essential ingredients of Malicious Prosecution.
Synopsis:
1. Introduction.
2. Meaning.
3. Definition of Malicious Prosecution.
4. Essential Ingredients of Malicious Prosecutions.
Reynolds Vs. Kenney, (1784)
Smt. Sava Rani Dutta V. Debabrata
Hicks Vs. Faulkner, (1878)
Savile Vs. Roberts
*************
1. Introduction:-
Foundation of law for action for malicious prosecution lies in the abuse of the process of
court by wrongfully setting the law in motion.
The whole principle lying behind for malicious prosecution is that the society as a whole is
interested in protecting the individual against unjustifiable and oppressive imputation of
criminal charges.

2. Meaning:-
Malicious: - Intending to do harm; done out of ill will and without justification.
Prosecution: - means a proceeding in a law, charging a person with a crime.
Prosecute is to set the law in motion and the law and set in motion only by an appeal to
some person clothed.
The person to be sued is the person who was ‘actively instrumental in putting the law in
force.
The name for the team of people (lawyers and so on) bringing proceedings against
someone else. Also when legal proceedings are taken against someone it is called a
prosecution.
Malicious prosecution: - Criminal or civil litigation brought without probable cause and
out of malice (intending to do something which is against the law); if the defendant prevails
in such a case, he or she may bring an action for the tort of malicious prosecution.

3. Definition of Malicious Prosecution:-

Malicious Prosecution may be defined as a tort which consists of instituting certain kinds of
legal proceedings against another person maliciously and without reasonable and probable
cause.
In other words Malicious Prosecution, consist in instituting,
i. Unsuccessful criminal proceedings.
ii. Bankruptcy.
iii. Liquidation proceedings.

Against another person without any reasonable and probable cause.

When such prosecution causes actual damages to the party prosecuted, it is a tort for
which he can bring an action.

The law authorizes persons to bring criminals to justice by instituting proceedings against
them.

If this authority is misused by somebody by wrongfully setting the law in motion for
improper purpose, the law discourages the same.

For the reason, to prevent false circumstances against innocent persons, an action for
malicious prosecution is, the plaintiff has to prove the following essentials in a suit for
damages for malicious prosecution.
1. The plaintiff was innocent.
2. His innocence was pronounced by the tribunal before which the accusation was
made.
Reynolds Vs. Kenney, (1784) it was held that no action would lie if the plaintif was
convicted.
3. He was prosecuted by the defendant. A defendant in a suit for malicious prosecution
can avoid his liability only if he has placed true and correct facts or information
before the police or a magistrate. In case he has concealed the material facts and
distorted them, he cannot escape liability.
Smt. Sava Rani Dutta V. Debabrata: the defendant filed the F.I.R. against the
plaintiff and his sister alleging among others the theft of her ear-ring. The offence of
theft is a cognizable offence, police on the report of the F.I.R took prompt action and
took away the plaintiff and his sister to the police station in a police van.
According to the High Court the defendant knew very well before filing the F. I. R.
that the plaintiff had not snatched away her ear-ring but in order to set police
machinery into motion, added the offence of theft with offence of theft with the
offence of assault. Police arrested the plaintiff and detained him in the night in the
thana lock up. According to the Court the F.I.R. was lodged out of malice.
4. That prosecution was instituted without any reasonable and probable cause.
The term ‘reasonable and probable cause’ has been defined by Hawkins, J., in Hicks
Vs. Faulkner, (1878) in the following words: “I should define reasonable and
probable to be an honest belief in the guilt of the accused, based upon a full
conviction, founded on reasonable grounds, of the existence of a state of
circumstances which assuming them to be true, would reasonably lead any ordinary
purudent and cautious man, placed in the position of accused, to the conclusion that
a person charged was probably guilty of the crime imputed”.
5. The defendant acted maliciously, and not with intention of carrying the law into
effect. Malice is not merely the doing of a wrongful act intentionally, but it must be
established that the defendant was actuated by malice and animus, that is by any
indirect or improper motive. As malice is a question of fact on the evidence laid
before a court which will have to decide whether there was malice or not.
Malice in its ordinary meaning is the wish, desire or intention to hurt one. In certain
circumstances want of reasonable cause has been held to be sufficient evidence of
malice that there was no genuine belief in the accusation made.
6. The proceedings complained of terminated in the favour of the present plaintiff.
7. Damage to Damage:-
The Plaintiff suffered damage as a result of the prosecution.
In Savile Vs. Roberts. Holt, C. J., classified damage to be awarded for the tort of
malicious prosecution into the following three categories:
(i) Damage to man’s fame.
(ii) Damage to person, and
(iii) Damage to property.
**************

Law of Torts-Part-II
 Consumer Protection Act of 1986

1. Who is consumer? Explain the aims and objectives of the Consumer Protection Act of 1986.
2. Discuss briefly the rights of consumers.
3. Explain the concept of “Consumer” under Consumer Protection Act of 1986.
4. Define the terms “consumer” and “services”. Explain the composition, powers and
functions of the District Forum.
5. Explain the terms complaint and complainant.
6. What are the objects of the Central Consumer Protection Council?
7. Explain the terms Complaint and Complainant.
8. Discuss briefly the rights of consumers.

Synopsis:
1. Background.
2. Objectives.
3. Salient Features of Consumer Protection Act
4. Aims.
5. Who is a consumer and what is service?
6. Who is not a consumer?
7. What are the rights and responsibilities of the consumer?
8. Extent of protection of consumer.
9. Consumer Dispute.
10.Who can be a Complainant.
Scope of different complaints.
a. Unfair Trade practice.
b. Restrictive trade Practice.
c. Defects.
d. Deficiency.
e. Excessive price. District Forum
f. Hazardous Goods.
11. Consumer Protection Redressal Agencies. State Commission.

National Commission.

***************

BACKGROUND:-
 Consumer was neglected with the dominance of the Producer, Trader, Manufacturer and
Businessman.
 “Consumer is the King of market”, got statutory recognition in India, in 1986. Consumer
was dominated by the producer, trader, manufacturer and the businessmen. Some people
thought the consumer should tell his opinion, should get consent.with respect the quality of
the products.
 However redressal through Courts (Normal Court) was time consuming and costly process,
which resulted in “justice delayed is justice denied”.
 Need for statute for consumer protection was felt.
 United Nation passed a resolution in 1985 to have a law for protection of consumer
interests and rights and promote their responsibility.
 Consumer Protection Act was Enacted in 1986.
 Effective or came into force in 15th April 1987.
 Supplemented by Consumer Protection Act 1987.

Objective:-

 To protect Rights of consumers.

 To provide for better protection of interests of consumers and for that purpose to make
provisions for the establishments of consumer councils/forums. (For speedy procedure).
 The main objective of the act is to seek to protect and promote the consumers
interest through speedy and inexpensive redressal of their complaints and
grievances.

The Salient Features of Consumer Protection Act are:-

1. Consumer Protection Act can provide redress to a consumer through a special set up “set of
courts”.
2. Need not engage a lawyer, and
3. Could expect a much quicker relief.
4. Further, no court fee had to be paid for filing a complaint, (but after the Consumer
Protection (Amendment) Act, of 2002 every complaint must be accompanied by such
amount of court fee as may be prescribed, which varies from case to case).

Aims of the Act:-

1. For speed disposal of the matter,
2. without appointing lawyer,
3. with nominal fees, and
4. to provide quicker relief.

Who is a Consumer?

Section 2(d) of the Consumer Protection Act says that consumer means any person who,
 Buys any “goods’ for a consideration.
 Hires * or avails of any “service” for consideration.
 “Uses the goods” with the approval of the person who has bought the goods for
consideration.
 “Is beneficiary of services” with the approval of the person who has hired the services
for consideration.
 By means of Self- employment, then such use would not be termed as use for
commercial purposes under the Act and the user is recognized as a consumer.
Ill:- A buys a truck for plying it as a public carrier by himself, A is a consumer.
But if A hire a driver then he is not a consumer.

Ex:- When I purchase some good, say a cycle, scooter, car, fan, shoes or gas stove I
may be the consumer of goods. Such purchases may be against the Consideration which
has been paid or promised to pay or partly payed and partly promised to pay or under any
system of deferred payment .

When I opt for some services like a bank Account, take an insurance policy, get my
car repaired or travel by cab, I could be the consumer of services.
__________________
*Hire is not defined under the Act but its Dictionary meaning is to procure the use of
services at a price, thus it is used in the sense of “avail” or “use”.

Who is not a Consumer?

 He who obtains the goods for resale or for any commercial purpose.
 Buys goods without consideration.
 Hires or avails of any services without the approval of the person who has bought the
goods for consideration.
 Is beneficiary of services without consent of the person who has hired the services for
considerations.
 He obtains service under a contract or personal service.
 He avails of services for any commercial purposes.
The above said person are not Consumer.

The Rights of the consumers:-

1. Right to information.
2. Right to choose.
3. Right to represent or heard.
4. Right to redressal.
5. Right to education.

1. Right to information:- It is right to be informed about the quality, quantity, potency,

purity, standard and price of goods and services, with a view to protect the consumer
against unfair trade practices. Adequate information is very important in order to make a
right choice. In our country, however, consumers do not get adequate comparative
information about the quality, quantity, potency, purity, standard and price of different
kinds of goods or services which are available. As a result, buying decisions become
difficult. Therefore consumers need to be given maximum information about the wide
variety of competing goods available in the market.
2. Right to Choose:- the right to choose can be made meaningful by ensuring access to a
variety of goods and services at competitive prices.
Fair and effective competition must be encouraged so as to provide consumers with the
widest range of products and services at the lowest cost.
3. Right to represent (right to hear):- It is right to be heard and to be heard and to be
assured that consumer’s interests will receive due consideration at appropriate forums.
The Consumer Protection Act, 1986 has well taken care of this right by making available
the instrumentality or Redressal Forums. Every consumer has a right to file complaint and
be heard in that context.
4. Right to redressal:- It is a right to seek redressal against unfair trade practices and
restrictive trade practices or unserpulous exploitation of consumers. When consumers are
wronged in a market place transaction, appropriate and adequate redress must be
available. The Act has ensured this right by establishing Consumer Forums and recognizing
restrictive and unfair trade practices as a ground to make a complaint.
5. Right to education:- The right to consumer education is a right which ensures that
consumers are informed about the practices prevalent in the market and the remedies
available to them.
For spreading this education, media, or school curriculum, or cultural activities, etc. may
be used as a medium.
Note:- that the Central Council’s object is to ensure these rights of the consumers
throughout the country while State Councils look to ensure these right to consumers within
their territories.

Responsibilities of the consumer:-

1. Check various goods and services available in the market.
2. Before making transaction consumer should check ISI mark on Electrical Goods, FPO mark
on the Food Products like Gee, Oil and Hallmarks on Jewellery works in the Market.
3. Study the risks associated with the products and services and follow manufacturers
instruction to use the product safely.
4. Read the labels carefully.
5. Be honest and fair in dealings.
6. Always ask for cash memo.
7. File a complaint with appropriate consumer forum in law shortcoming in the quality.

Extent of Consumer Protection.:-

Enshrines the rights of a consumer to be informed about the.
1. Quality, quantity, potency, price etc of goods.
2. Protection against unfair trade practices to seek inexpensive and redressal of grievance.
“In-expensive and speed justice”.

Consumer Dispute:-
A dispute where the person against whom the complaint has been made denies or disputes
the allegations contained in the complaint.

Complaint:-
An aggrieved consumer seeks redressal under the Act through the instrumentality of
complaint. It does not mean that the consumer can complain against his each and every
problem. The Act provides certain grounds on which complaint can be made.

Who can be a Complainant?

 A consumer.
 A registered Consumer Organization. (any voluntary consumer association registered under
the Companies Act of 1956 or any other law for the time being in force ).
 Central Government or State Government.
 One or more consumer for and on behalf of other consumers similarly affected.

Scope of different complaints.

b. Unfair Trade practice.
c. Restrictive trade Practice.
d. Deficiency.
e. Defects.
f. Excessive price.
g. Hazardous Goods.

Unfair Trade Practice:-

 Is a trade practice which,
 For the purpose of promoting sale, use or supply of goods or for the provision of any
service.
 Adopts unfair method or unfair or deceptive.
 Including any of the following practices.

Restrictive Trade Practice:-

 It tends to bring about manipulation.
 It shall include.
1. Delay beyond the period agreed to by a trader in supply of goods or services
which has led to increase in price.
2. Any trade practice which require a consumer to buy, hire or avail of any goods or
service as condition precedent to buying.

Deficiency:-
 Any fault, imperfection, shot coming or inadequacy.
 In the quality, nature and manner of performance.
 Which is required to maintained by or under any law.
 Has been undertaken by a person to be performed.
 Otherwise in relation to any services.

Defects:-
 Any fault, imperfection or shortcoming.
 In the quality, quantity, potency, purity or standard.
 Which is required to be maintened by or under any law for time being in force.
 Under any contract express or implied.
 As is claimed by the trader in any manner what so ever in relation of any goods.
Excessive Price:-

A price is excess of the

1. Fixed by or under any law for the time being in force.
2. Displayed on the goods or any package containing such goods.
3. Displayed on the price list exhibited by him under existing law.

Hazardous Goods:-

1. Goods which are hazardous to life and safety.

2. Traders shall display information regarding the content, manner and effect of such goods.
 ***************

-: Solution to the Problems:-

1. A hundred years old Clock Tower situated in a busy street of Magadha city. The clock
tower was exclusively under the control of Muncipal Corporation of Magadha City. The
normal life time of the Clock Tower was estimated to be 60 years. The Clock Tower
collapsed resulting in the death of 25 people. Can the Muncipal Corporation of
Magadha city be held liable?
1. Issues:-
a. Whether the incident is a tortuous liability in nature?
b. Whether the Magada Municipal Corporation is liable to pay the compensation to
the plaintiff or injured parties.
c. Injured parties are entitled to get the compensation from Magada Municipal
Corporation.
2. Point of Law:- Ommission to discharge the duty of Magadha City Corporation.
3. Application of Law:- Magadha city corporation was responsible to take care of the
Clock Tower but it did not maintaining the Clock Tower properly. The consequence
is its collapse due to which many innocent people of the Magadha city died.
4. Relevant Case Law:- Municipal Corporation of Delhi Vs. Subhagwati (AIR 1966 SC
1750) Facts of case:- The Clock Tower situated opposite of Town Hall in the main
Bazar of Chandni Chowk, Delhi, belonging to the appellant corporation, formerly
the Municipal Committee of Delhi. The clock tower was exclusively under the
ownership and control of the appellant or its servants. The clock tower was over 80
years old and the normal life of the top storey could be only 40 or 45 years. The
collapse was due to the thrust of arches on the top portion and the mortar was
deteriorated to such an extent that it was reduced to powder without any
cementing properties. There was neither any earthquake not storm nor any other
material event which was unforeseen and which could have been the cause of the
fall of the clock tower and many were killed as the result.
The present appeals arose out of 3 suits for damages filed by the heirs of three
persons, namely, Shri Ram Prakash, Shrimati Pauni Devi and Sant Gopal Chand who
died as a result of the collapse of the Clock Tower.
Judgement:- The Supreme Court held:”…………. The doctrine of res ipsa loquitur
applies in circumstances of the present case…. The mere fact that there was fall of
the clock-tower tells its own story in raising an inference of negligence so as to
establish a prima facie case against the appellant….. the legal position is that there
is a specific obligation on the owner of adjoining premises for the safety of the
structures which he keeps beside the highway. If these structures fall into disrepair
so as to be of potential danger to passerby or to be a nuisance, the owner is liable
to anyone using the highway who is injured by reason of the disrepair.
In such a case it is no defence for the owner to prove that he neither
knew nor ought to have known of the danger.
In other words, the owner is legally responsible irrespective of whether the damage
caused by a patent or a latent defect.”
5. Judgement:- It can be decided in the given Problem that Magadha City could be
held liable to pay the compensation to the injuried parties.

******************
 2. Mr. Praveen purchased a ticket to watch a car race. During the race, a car got
entangled in the safety rope and hit Praveen directly and he died consequently.
Advise.
1. Issues:-
a. Whether the Praveen is purchased a ticket to watch voluntarily to watch a car
race?
b. Whether Praveen know the future consequences of the act?
c. Whether the Plaintiff is entitled to claim the compensation?
d. Whether the Defendant is held liable to pay the compensation?
2. Point of Law:-
 It falls under the maxim Volenti Non Fit Injuria under the General exception
to the tortuous acts.
 Damages suffered by consent are not a cause of action.
3. Application of law:-
 Praveen purchased a ticket to watch a car race is voluntarily and he also
know the consequences of the act .
 It falls under Voluntary non fit Injuria.
 Willingness does not make an injury.
4. Relevant case Law:-
Hall Vs. Brooklands Auto Racing Club (1933)
Facts of case”-
The plaintiff went to see a car racing of the defendant club. There was a collision
between 2 racing cars and one of the two car was rushed among the spectators.
Several spectators were injured, including the plaintiff. The plaintiff sued the
defendant for the compensation in the court.
Judgement:- While applying the same above the given case the defendant is not
held liable on the basis of maxim Volenti Non Fit injuria.
5. Conclusion:-
In the above given case Praveen is not entitled for compensation, as damages
suffered by him is his own consent which does not give rise to the cause of action.
not a cause of action.
****************
3. The defendant told the plaintiff as a practical joke that her husband had met with an
accident was seriously injured lying in the hospital. On hearing this, the plaintiff
suffered a nervous shock and become ill. Can she claim damages?
1. Issues:-
1. Whether the injury could be caused by practical joke?
2. Whether ‘injury to a person’ also included under mental injury?
3. Whether the Plaintiff is entitled to claim the compensation?
4. Whether the Defendant is held liable to pay the compensation?
2. Point of Law:-
 Intention is not essential condition of liability in tort.
 It falls under the mental elements to constitute a tort.
 Intention which is the part of mental elements being not very important factor
under Law of Torts.
3. Application of Law:-
 The defendant played a perverted practical joke with the plaintiff by falsely
representing that plaintiffs husband was seriously injured in an accident.
 The act will fall under the Mental element in tort.
 Where the intention is not essential condition of liability in tort.
4. Relevant case Law:-
Wilkison Downton (the Greyhair Case).(1897).
Facts of Case:-
The defendant played a perverted practical joke with the plaintiff by falsely representing
that her husband was seriously injured in an accident and was lying injured at a public
house in Lytonstone. She was so much shocked that she fell seriously ill and her hair
turned grey. The Plaintiff filed a suit to recover damages for nervous shock.
 It was argued on behalf of the defendant that he simply played a practical joke and
never intended the consequences.
Judgement:- the defendant was held liable because, he committed a wrongful act
although he did not intend to harm the plaintiff.
5. Conclusion:-
In the above given case the defendant played a perverted practical joke with the
plaintiff never intended the consequences. But the defendant was held liable
because he committed a wrongful act although he did not intend to harm the
ploaintiff.
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6. A cat strayed from its owner’s land into the land of a neighbor and killed birds kept
there. Is the owner of the cat liable?
7.