PAHUJA LAW ACADEMY
LAW OF TORTS
- Define Tort?
- What is the distinction between Law of Torts?
- Distinguish between Tort and Branch of Contract?
- Distinguish between Tort and Crime and between Tort and Quasi Contract?
- Enumerate the rights in the law of Torts, the exercise of which, even if they cause damage, are not actionable (datnnum sine injuria). Illustrate your answer.
A and B, owners of separate but contiguous land, B has a tank on his own land on which there are wild ducks. With the helps of boats and decoying ducks, he catches some and sells them in the market. A goes to the edge of his own land and fires a gun which M scares the ducks and they fly away, is A liable for damages in the above case?
PAHUJA LAW ACADEMY
LAW OF TORTS
- What is Law of Torts?
Law of Torts is a system of laws.
Which enable a person who has suffered warm or injury by the act of another may claim damages in a civil suit (S-9 of CPC)
Tort is a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of Trust.
A violation of Legal Right.
What is a legal right?
When state (Law) recognizes & protects the interests of the people is known as Right.
Tort – Civil Wrong
Violation of Legal Right
Violation can be done by act or omission
Act – (Salmond)- Any event which is subject to a human will is known as act.
Every wrong is mischievous in the eyes of law, but not vice-versa.
e.g. (1) Libel e.g. (1) Breach of contract
(2) Trespass (2) Malicious Prosecutor
PAHUJA LAW ACADEMY
LAW OF TORTS
- The word ‘Tort’ has been derived from the Latin ‘sword
(d) None of these.
- Tort means
(a) A wrong.
(b) A legal civil wrong (however, every civil wrong is not a tort
(c) A legal wrong.
(d) all of the above.
- Tort 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. This definition of ‘tort’ is given by
(d) Clerk and Lindsell.
- The main supporter of the theory that “it is a law of Tort” and “not law of Torts” is
- The propounder of “Pigeon-hole” theory (‘law of torts? and not ‘law of tort’) is
(b) Clerk and Lindsell.
- The nature of a tort can be understood by distinguishing .
(a) Tort and crime.
(b) Tort and duty in civil cases viz. a contract, a trust and a quasi-contract.
(c) Right and duty
(d) Both (a) and (b).
- The essential characteristic of a tort is, violation of ‘
(a) right in personam (a right available only against some determinate person or property).
(b) A contractual right.
(c) Right in rem (a right vested in some determinate person and available
(d) All of the above.
- “Wrongs are divisible into two sorts or species, ‘private wrongs’ and ‘public wrongs’. The above distinction was made by
- Ubi jus ibi remedium means
(a) Every law provides for remedies.
(b) There is no wrong without a remedy.
(c) If a law is made corresponding remedy also must be made
(d) Every remedy presupposes some injury to somebody.
- The general remedy in law of tort is
(a) Action for damages.
(b) Action for injunction.
(c) Specific restitution of property.
(d) Action for unliquidated damages.
PAHUJA LAW ACADEMY
- (a) Discuss citing case law the maxim. ‘Volenti non fit injuria’ highlighting the point that the maxim is “Volenti non fit injuria, not scienti non fit injuria.
(b) A messenger is employed to deliver a letter at the hotel, X. While he was in the hotel for the purpose a ceiling fan fell upon him and he was injured. A notice exhibited at the entrance excluded liability to the visitors which the messenger had seen. Would the doctrine of volenti non fit injuria apply?
- In the Nineteenth Century (volenti non fit in juria) somehow found it was into the law of torts, in which it applies both to international and accidental harms. It might be helpful if a distinction is drawn between consent and assumption of risk.
A Trace the development of law on the above subject in the light of above statement.
- A snake-charmer, X, was exhibiting the show of snakes on roadside. Many persons assembled there. At the time of starting the show, he cautioned the spectators that all snakes are poisonous. Later on, due to slight carelessness, a poisonous snake came out of the ‘Peetara’ (i.e. charmer’s basket) and started creeping towards a spectator, a boy of 10 years. As soon as the snake reached the boy and was going to bite him, a spectator, B, ran to save him. He saved the boy, but in doing so, he was bitten by the snake and in consequence remained ill for two months. B sued X for damages, but X raises the defence of volenti non fit injuria. How will you decide?
- The defendant had been carrying cargo in a lorry for the plaintiff. On the way, there was heavy rainfall. The cargo was damaged by seepage due to rainwater rising from below, while it had been securely protected by the defendant by tarpaulin from above. The flash blood on the highway had stranded hundreds of lorries including that of the defendant and the water level on the highway rose above tyres and up to the level which resulted in the seepage. However, the plaintiff claimed heavy damages from, the defendant on the ground of negligence or want of due care. Discuss whether the defendant can have any defence in this case.
PAHUJA LAW ACADEMY
General Defences: Avoidance of Liability in Tort
General defences, taken against action for
- Volenti non fit injuria (Defence of Consent).
- Plaintiff, the Wrongdoer.
- Inevitable Accident.
- Act of God.
- Private Defence.
- Statutory Authority.
- Judicial/Quasi-Judicial Act; Executive Acts.
- Acts done Under Parental Authority.
What is volenti non fit injuria?
(I) Volenti non fit injuria (Leave and Licence)
Everyone is the best judge of his interest therefore the one who voluntarily agrees to suffer harm is not allowed to complain that and one’s consent is a good defence against oneself. This is so because the harm voluntarily suffered does not constitute the legal injury.
Consent to suffer the harm may be express or implied. In Hall v Brooklands Auto Racing Club (1931), the plaintiff was a spectator at a motorcar race. During the race there was a collision between two cars, one of which was thrown was the duty of care rather than the duty of skill.
In Padmavati v Dugganaika, two strangers took life in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the driver nor the master could be made liable, firstly, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep.
Essential Conditions of a Defence of Consent
(i) Free consent have been induced by fraud, compulsion, coercion, undue influence, misrepresentation, mistake, etc. Consent obtained by fraud is not real. Thus, in R. v Williams (1923) the accused, a music teacher, was held guilty of rape when he had sexual intercourse with a minor girl on the pretext of an operation to improve her voice. Similarly, the consent obtained under compulsion is not a free consent.
(ii) Knowledge- Knowledge of a danger or risk is not the same thing as the consent to bear the danger. Thus, mere knowledge of the risk (Scienti non fit injuria) is not enough. Cutler v United Dairies (London) Ltd. Driver of a cab with restive horses cried for help. The plaintiff went and attempted to hold the horse but it threw him on the ground causing him injuries, in respect of which he sued the defendant. Held that the plaintiff has no right of action as he must have known that his attempt to hold the horse was attendant with risk, and therefore, the maxim volenti non fit injuria applied.
Bowater v Rowley Regis Corpn. The plaintiff, a cart driver, was asked by the defendant’s foreman to drive a horse, which to the knowledge of both, was liable to bolt. The plaintiff protested, but ultimately
took out the horse in obedience to the order. The horse bolted and the plaintiff was injured thereby. Held, the maxim volenti non fit injuria did not apply and the plaintiff was entitled to recover.
Smith v Baker (1891). The plaintiff had been generally aware of the risk; however, held that the mere knowledge of the risk without the assumption of it does not help in applying the maxim. It must be shown that the plaintiff agreed or appreciated that what risk there was should lie on him.
Dann v Hamilton (1939). The court held that the lady was entitled to claim compensation. The reason why the defence of volenti non fit injuria was considered to be not applicable was the degree of intoxication of the driver was not to such an extent that taking a lift be deemed to be consenting to an obvious danger.
Limitation/ Exceptions to the application of the maxim
- Illegal consent- No consent can legalize an unlawful act e.g. fighting with naked fists or duel with sharp swords.
- Breach of a statutory duty
- Negligence- When the plaintiff consent to take some risk the presumption is that the defendant not be negligent, a stick or operation is unsuccessful because of surgeon’s negligence cannot plead volenti non fit injuria because the plaintiff never consented to an injury in that manner.
- Rescue cases- When the plaintiff voluntarily takes a risk (even of death) rescue somebody from an imminent danger created by the wrongful act of the defendant, he cnnot be met with the defence of volenti non fit injuria. The danger invites rescue. The cry of distress is the summons to relief.
Haynes v Harwood (1935), the defendant’s servant left a two horse van unattended in a street. A police constable, the plaintiff, who was on duty, saw the runaway horses coming down the street. Seeing a grave danger to a woman and children he took the risk and managed to stop the horses, but in the process, he was seriously injured. It being a ‘rescue case’ the defence of volenti non fit injuria was not accepted and the defendants were held liable.
Wagner v International Railway (1921) Railway passenger was thrown out of the running railway car due to the negligence of the railway company. When the car stopped, his companion got down to search his friend. There was darkness, the rescuer missed his footing and fell down the bridge resulting in injuries to him. He brought an action against the railway company. Held that it being a case of rescue the railway company was liable.
Baker v T.E. Hopkins & sons (1959) due to the employer’s negligence a well was filled with poisonous fumes of a petrol driven pump and two of his workmen who were reconstructing overcome by fumes. Dr. Baker entered the well despite the risk with the view to help the two workmen, however fumes too overcame him. Held, the maxim does not apply. The defendants were liable.
- Unfair Contract Terms Act, 1977 (England)- Sec. 2 of the Act limits the right of a person to restrict or exclude his liability resulting from his negligence by a contract term, or by nitice. There is a complete ban on a person’s right to exclude his liability for death or personal injury resulting from negligence, by a contract term or notice.
(2) Plaintiff the Wrongdeor
Bird v Holbrook (1828) that the trespasser on the defendant’s land is entitled to claim compensation for the injury caused by spring guns set by the defendant without notice in his garden.
(3) Inevitable Accident
It means an unexpected injury, which could not have been, avoided inspite of a reasonable care on the part of the defendant.
If A fires at a bird but the pellet from the gun strikes a tree and rebounds and injures B in a different direction. A can take the defence of inevitable accident [Stanley v Powell (1891)]. Similarly, if the driver is not able to control the horses, which are startled by a barking dog, and the plaintiff is thereby injured, the defendant will not be liable [Holmes v Mather (1857)].
(4) Act of God- vis Major
Pollock defines the Act of God “an operation of natural forces so unexpected to anticipate it.”
Two important essentials are needed for the defence of act of God:
- There must be working of natural forces (like exceptionally heavy rainfall, storms, tempests, earthquakes, tides and volcanic eruptions) without any human intervention.
- The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.
The rule of strict liability (rule in Rylands v Fletcher) also recognizes act of God to be a valid defence for the purpose of liability under the rule.
(5) Private Defence
Private defence is a good ground to negative a tortuous liability. The law permits the use of reasonable force to protect one’s person or property.
- There was an imminent and immediate danger,
- The force employed was not out of proportion,
- The force is employed only for the purpose of defence. The force should not be used by way of retaliation after the danger is over. Further, a clear notice (warning of danger) must be put up.
Fixing of broken glass or spikes on a wall, or keeping of a fierce dong can be justified for the protection of the property, but fixing up of spring guns without any warning to a trespasser (Bird v Holbrooke and Ilot v Wilkes), or life electric wire to keep the trespassers away (Cherubin Gregory v State of Bihar AIR 1964 SC205), cannot be justified.
Mistake, whether of fact or law, is generally no defence to an action of tort. However, in torts requiring malice, such as the wrong of malicious prosecution and deceit the liability does not arise when the defendant acts under an honest and mistaken belief.
An act causing damage, under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. Throwing goods overboard to lighten it for saving the ship or person on board the ship.
(8) Statutory Authority
This defence is founded on the principle that the law, which recognizes a right, can abolish it, modify it and regulate it. The damage resulting from an act, which the legislature authorizes directs to be done, actionable even though it would otherwise be a tort.
However, where an act authorized by the legislature is done negligently, than action lies. Smith v London & South Western Railway Co., the servant of a Railway co., negligently left trimmings of grass and hedges near rail line. From an engine set the material on fire. By a heavy wind the fire carried to the nearby plaintiff’s cottage, which was burnt. Since it was a case of negligence on the part of the Railway Co., they were liable.
PAHUJA LAW ACADEMY
- Which one of the following is not a valid defence in tort?
- Volenti non fit injuria
- Vis Major
- Scienti non fit injuria
- The term ‘Scienter’ is related to which one of the following sign-boards?
- “Trespassers will be prosecuted”
- “Beware of dogs”
- “No Parking”
- “No admission without permission”
- Two strangers took lift in a jeep. A bolt fixing the right front wheel to the axle gave way toppling the jeep. Two strangers were thrown out and one of them died of injuries and the other sustained injuries.
- The driver is responsible for the accident as he did not take care and caution.
- The owner is responsible as he let the driver to drive a defective vehicle.
- The strangers are responsible as they took the lift willingly (volenti non fit injuria).
- Both the driver and owner are responsible.
- A music teacher was held liable for raping a minor girl even though he had taken her consent under the pretext that an operation (sexual intercourse) is required to improve her voice. It is the fact of the case in
- Ashby v White
- v Clarence
- v Williams
- v Catherine
- A lady died at the time of the birth of a child an unqualified midwife attended her to own her own request at the time of delivery. Her husband brought an action for damages. In this case
- No damages are payable as the deceased lady voluntarily engaged the midwife
- Damages are payable to the husband as his consent was not taken
- No damages are payable as the unqualified midwife can be criminally tried.
- Damages are payable as the consent of the deceased was irrelevant.
- A person who is not qualified as a medical practitioner performed an operation with the consent of a patient. The patient died. Which one of the following grounds will be most appropriate to determine his liability?
- Volenti non fit injuria is a complete defence
- He has no intention to kill and has performed the operation in good faith for the benefit of the person
- He has earlier done similar operations with success
- As he is not a medical practitioner and is unskilled, the plea of consent and good faith will not be available.
- A railway company was authorised by law to run railway trains on a track. The sparks from the engine set fire to the adjoining property belonging to the plaintiff.
Which one of the following defences will be most appropriate for the defendant to raise in an action for nuisance by the plaintiff.
- Public good
- Nuisance due to other’s acts
- Reasonable act in conducting his business
- Statutory authority.
- The maxim ‘Salus popull suprema lex’ means
- No man is above the law
- The welfare of the people is the supreme law.
- The defence of statutory authority is the supreme law
- None of the above
- Which one of the following is not an exception to the rule of volenti non fit injuria?
- A surgeon amputates a limb of a patient to save his life.
- Injury is caused while play-fighting with naked swords at a religious function
- Injury is caused to a player in a football match.
- Injury is caused while doing lawful acts under a contract.
- The scope of application of the doctrine of volenti non fit injuria has been curtailed
- In rescue cases
- When the person has taken the risk by his own free will
- By the Unfair Contract Terms Act, 1977 (England)
- Both (a) and (c)
- ‘Act of God’ is also known by the name
- Vis major
- Damnum fatale
- Vis major of Damnum Fatale
- Force Majeure
PAHUJA LAW ACADEMY
LAW OF TORTS
- (a) Point out the essentials of negligence as a specific tort.
(b) A, is firing crackers during Deepawali, One cracker strikes B, who was standing nearby and causes injury to his eye.
Discuss the liability of A towards B.
- Define Medical Negligence?
What is Negligence?
Is it an unintentional tort or intentional tort?
The Apex Court in Jacob Mathew v. State of Punjab, observed:
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
Actionable negligence consist in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.
The definition involves three constituents of negligence:
(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty;
(2) breach of the said duty;
(3) consequential damage.
According to Charlesworth & Percy, negligence, in current forensic speech, negligence has three meanings. These are:
- a State of mind, in which it is opposed to intention;
- careless conduct;
- the breach of duty to take care that is imposed by either common or statute law.
Negligence has two meanings in law of torts:
- Negligence as a mode of committing certain torts, e.g. negligently or carelessly committing trespass, nuisance or defamation. In this context, it denotes the mental element.
- Negligence is considered as a separate tort. It means a conduct which creates a risk of causing damage, rather than a state of mind.
Donogne vs Stevenson (Snail in the bottle case)
Lord Atkin defined the duty of care is “ you must love your neighbour i .e. you must not injure your neighbor”
This Phrase manifests the doctrine of privity of contract & doctrine of privity do not applies in Tortiors liability & hence could not applied in this case,
Because as per the privity rule, there was no contractual liability ,therefore the manufacturer was not liable in tort also ,this fallacy died a hard death in Donogue’s case & finally is burried by privy council in grant v/s Australian Knitting mills ltd.
- Barnett v/s Packer &co. (a piece of wire in sweets—- causes injury)
Court held the defendant Were liable for causing negligence.
- 3. Austin v/s Great Western Railway (1867)
Railway accident – 3 years old died young –Railway company were held liable because any passenger who has been injured by the negligence of a railway COMPANY can sue them in tort , if they have invited or knowingly permitted him to enter the train, whether or not there is also a contract for carriage between him &the Railway company ,thus (s) was entitled to recover damages from the rly. Company, for he had been accepted as a passenger.
Duty of care to the plaintiff
It means a legal duty rather than a mere moral, religious or social duty.
The plaintiff has to establish that the defendant owed to him a specific legal duty to take care, of which he has made a breach.
Duty depends on reasonable foreseeability of injury i.e. reasonable likelihood of injury
In Rural Transport Service v. Bezlum Bibi, the conductor of an overloaded bus invited passengers to travel on the roof of the bus. On the way, the bus swerved on the right side to overtake a cart. One of the passengers on the roof of the bus, Taher Seikh, was struck by an overhanging branch of a tree. He fell down and received multiple injuries on the head, chest, etc. and as a consequence thereof he died. In an action by Bezlum Bibi, the mother of the deceased, it was held that there was negligence on the part of both the driver and the conductor of the bus, and the defendant was held liable for the same.
In Sushma Mitra v. Madhya Pradesh State Road Transport Corp, the plaintiff was travelling in a bus belonging to the Madhya Pradesh State Road Transport Corporation, resting her elbow on the window sill. The bus was moving on the highway outside the town area. A truck coming from the opposite direction hit her in her elbow as a result of which she received severe injuries on her elbow. The bus and the truck, however, did not come in contact with each other. Taking into account the fact that the habit of resting elbow on the window of the bus is so common, it was held that even if such conduct was negligent and foolish, it must enter into contemplation of a reasonable driver. The drivers of both the bus and the truck owed a duty of care for the safety of the plaintiff as while driving or passing a vehicle” carrying passengers, it is the duty of the driver to pass on the road at a reasonable distance from the other vehicle so as to avoid any injury to the passengers whose limbs might be protruding beyond the body of the vehicle in the ordinary course.‘ The presumption of negligence was raised against the drivers of the bus as well as the truck. They failed to rebut this presumption of negligence. The defendants were, therefore, held liable.
No liability when injury is not foreseeable
In Cates v. Mongini Bros, the plaintiff, a lady visitor to a restaurant was injured by the falling of a “ceiling fan on her. The reason for the falling of the fan was a latent defect in the metal of the suspension rod of the fan. The defect could -not have been discovered by a reasonable man. In an action against the defendants, who were running the-restaurant, it was held that since the harm was not foreseeable, they were not negligent and therefore, were not liable for the loss to the lady plaintiff.
In Glasgow Corp. v. Muir the manageress of the defendant Corporation tea rooms permitted a picnic party of 30 to 40 persons,who had been caught in a rain, to have their food in the tea room. Two members of the picnic party were carrying a big urn containing six to nine gallons of tea to the tea room through a passage where some children were buying sweets and ice-creams. Suddenly, one of the persons lost the grip of the handle of the urn and six children including the plaintiff, Eleanor Muir, were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of the tea urn being carried through the passage and, therefore, she had no duty to take precautions against the occurrence of such an event. Hence, neither the manageress nor the Corporation could be held liable for the injury.
Reasonable foreseeability does not mean remote possibility
To establish negligence it is not enough to prove that the injury was foreseeable, but a reasonable likelihood of the injury has to be shown because “foreseeability does not include any idea of likelihood at all. The duty is to guard against probabilities rather than bare possibilitiesl In Pardon v. Harcourt-Rivington the defendant parked his car by the road side and left a dog inside the car. (The dog jumped, about and smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. It was held that the accident, being very unlikely, there was no negligence in not taking a precaution against it and, therefore, the defendant was not liable.
In Bolton v. Stoke, the defendants were the committee and Members of cricket club. A batsman hit a ball and the ball went over a fence seventeen feet high and seventeen feet above the cricket pitch and injured the plaintiff on the adjoining highway. The wicket from which the ball was hit was about 78 yards from the fence and 100 yards away from the plaintiff. The 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. No liability because of the absence of reasonable forceability.
In Blyth v. Birmingham Water Works Co. a plug installed by the defendants, which had worked satisfactorily for 25 years, was damaged due to an exceptionally severe frost in 1855, as a result of which the water escaped and the plaintiff/s premises were flooded. It was held that “the defendants had provided against such frosts as experience would have led man, acting prudently, to provide against; and they were not guilty of negligence, because their precautions proved insufficient against the effect of the extreme severity ‘of the frost of 1855, which penetrated to a greater (depth than any which ordinarily occurs south of the polar regions.
Breach of duty
Breach of duty means non-observance of due care which is required in -a particular situation.
What is the standard of care required? The standard is that of a reasonable man or of an ordinarily prudent man.
If the defendant has acted like a reasonably prudent man, there is no negligence. As stated by Alderson B. in Blyth v. Birmingham” Waterworks Co., “Negligence is the omission to do something which a-reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.
Standard of care required
The law requires taking of two points into consideration to determine the standard of care required:
(a) the importance of the object to be attained,
(b) the magnitude of the risk,
(c) the amount of consideration for which services, etc. are offered.
Proof of Negligence : Res Ipsa Loquitur i.e. things speaks it self
In Municipal Corporation of Delhi v. Subhagwanti held, that the fall of clock tower tells its own story is raising an inferences of negligence on the part of the defendant, The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi, which was having control of the structure had obviously failed to get the periodical check up and the necessary repairs done. The count further held corporation guilty of negligence for not subsisting the clock tower to careful & systematic inspection which it was the duty of the corporation
Since the defendants could not prove absence of negligence on their part ,they were held liable.
“The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff by not requiring him to prove negligence. When the accident is more consistent with the negligence of the defendant than with any other cause and the facts are not known to the plaintiff but or ought to be known to_ the-defendant, the doctrine applies.
Defance to negligence
- Vis major (act of god ) Manindra nath Manherjee versus Mathura das chatturbhuj-fall of banner case.
- Inevitable accident
- Contributory negligence of the plaintiff
- Volenti non- fit injuria ( defense of consent)
- Express contract
- Judicial acts executive act & statutory authority
Doctor’s duty of care
When a medical practitioner attends to his patient, he owes him the following duties of care :
- A duty of care in deciding whether to undertake the case;
- A duty of care in deciding what treatment to give;
- A duty of care in the administration of the treatment.
In Phillips India Ltd. v/s Kunjn Punnu
In an action for negligence against a doctor, the plaintiff has to prove 3 things:-
- That the doctor was under a duty to false reasonable care towards the plaintiff, to avoid the damage complained of or not to cause damages to the patien by failure to use reasonable care
- That there was a breach of such duty on the part of the doctor
- That such breach of duty was the real course of the damages complained of.
- Such damages was reasonably forseeable.
- Narsimha Rao v/s Gundavarapu Jayaprakash
Irreparable brain damage to owner — Vicarious liability and negligence of surgeon and Anesthetist.
- Jacob Mathew v/s state of Punjab
Appelant is not liable under section-304A/34 because negligence was not gross or of a high .These was also no ‘Mens Rea’ Which is requirement in criminal law. This negligence would be punishable in tort but not in criminal law.
- Indian Medical Association v/s V.P Shantha
A three judge bench of the Apex court, dealt with how a profession differs from an occupation?
The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise a reasonable care in the discharge of their duties.
PAHUJA LAW ACADEMY
LAW OF TORTS
- The test of reasonable foresight in determining the remoteness of damages was first applied in
(a) Re: Polerris
(b) Wagon Mannd case
(c) Doughty v. Turner Manufacturing Co. Ltd.
(d) S.C.M. (United Kingdom) Ltd. v. W.J. Whittal & Sons.
- In Donghue v. Stevenson, the duty of manufacturer was stated to be
(a) towards retailer only
(b) towards the buyer from retailer
(c) towards ultimate consumer
(d) none of the above.
- The maxim ‘res-ipsa loquitur’ means
(a) the things do not speak for itself
(b) the things speaks for itself
(c) the things have to be proved beyond doubt
(d) the burden of proving the things always remain on the plaintiff.
- The maxim ‘res-ipsa loquitur’ is a
(a) rule of law
(b) rule of procedure
(c) rule of evidence
(d) rule of negligence.
- The doctrine ‘res-ipsu loquitur’ is a
(a) shifts the burden of proving negligence on the plaintiff
(b) disproves the negligence on the defendant
(c) does not shift the burden of disproving the negligence on the defendant
(d) both (a) & (c).
- The doctrine ‘res-ipsa loquitur’ was applied by the Supreme Court in
(a) Alka v. Union of India
(b) Asa Ram v. Municipal Corporation of Delhi
(c) Municipal Corporation of Delhi v. Subhagwanti
(d) Jasbir Kaur v. State of Punjab.
- In case when two persons are negligent and one of them who had the later opportunity of avoiding the accident by taking ordinary care, should be liable for the loss—the rule is named as
(a) res ipsa loquitur
(b) last opportunity or last chance rule
(c) rule of superior’s responsibility
(d) rule of alternative danger.
- Last opportunity rule is
(a) an exception to contributory negligence
(b) a modification to contributory negligence
(c) an alternative to contributory negligence
(d) supplements contributory negligence.
- The doctrine of apportionment of damages in cases of contributory negligence is
(a) applicable in India
(b) applicable in England
(c) applicable in India and England both
(d) neither applicable in India nor in England.
- When the negligence of two or more persons result in the same damage, it is said to be a case of
(a) single negligence
(b) contributory negligence
(c) composite negligence
(d) either (a) or (b) or (c).
PAHUJA LAW ACADEMY
- (a) Discuss the exception to the rule contained in maxim. ‘Actio personalis Moritur cum Persona’.
(b) A, taxi driver backed his taxi-cab into a small bicycle and slightly damaged both.
His mother heard this scream and looking out of an upstairs window some seventy yards away, saw the bicycle under. The taxi cab but could not see her son. The mother suffered nervous shock.
Discuss the liability of A towards the boy and the mother.
The term ‘nuisance’ has exhaustive and diverse definitions. The word ‘nuisance’ is derived from the French word nuire, to do hurt, or to annoy.
In Durga Prasad v State (AIR 1962), it was observed that ‘nuisance’ ordinarily means anything, which annoys, hurts or that which is offensive.
Nuisance as a tort means’ an interference with a person’s use or enjoyment of land, or some right over, or in connection with it (Winﬁeld). Acts interfering with the comfort, health or safety are the examples of it. Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or, in some cases, in the exercise of a common right (Pollock).
Whether Nuisance is the Branch of Negligence or not?
Nuisance may be caused by negligence, but it is no branch of negligence and it is no defence that all -reasonable care to prevent it is taken. Nuisance is generally a continuing wrong (state of affairs). It must not be momentary though it could be temporary. A constant noise, smell or vibration is a nuisance and ordinarily an isolated act of escape of noise cannot be considered to be a nuisance e.g.,-an isolated act of-hitting a cricket ball on to a road.
However, in Dollman v Hillman Ltd. (1941), the defendant was held liable for the isolated act, when the plaintiff slipped on a piece of fat lying outside the defendant’s, butcher’s shop, in nuisance and negligence.
Kinds of Nuisance
Nuisance are of two kinds: Public or common nuisance and private nuisance.
Public nuisance is a crime (Sec. 268, IPC) whereas
private nuisance is a tort or civil wrong.
A public nuisance can be defined as an unreasonable interference with a right common to general public.
Example: Obstructing a public way by digging _a-trench, carrying on trades which cause offensive smells or intolerable noises, etc.
Thus, the acts constituting public nuisance are all of them unlawful acts; those, which constitute private nuisance, are not necessarily or usually unlawful. Public nuisance does not create a civil cause of action for any person. In order that an individual may have a private right of action in respect of a public nuisance –
(i) He must show special and particular injury to himself beyond that which is suffered by the “rest of public.
(ii) Such injury must be direct, and not a mere consequential injury; as, where one way is obstructed, but another is left open.
(iii) The injury must be shown to be of a substantial character.
In Dr. Ram Raj Singh v Babulal (AIR 1982), the defendant erected a brick grinding machine adjoining the premises of the plaintiff, who was a doctor. The dust generated by the machine entered the plaintiff’s chamber and caused physical inconvenience to him and his patients, It was held that special damage to the plaintiff ‘had been proved.
In Campbell v Paddington Corpn. (1911), an uninterrupted view of the funeral procession of King Edward VIII could be had from the window of the plaintiff’s building. The plaintiff accepted certain payments from certain persons and permitted them to occupy seats in her building. Before the date of the said procession the defendant corporation constructed a stand on the highway in front of the plaintiff’s building, which obstructed’ the view. Held, the plaintiff was entitled to compensation.
Private Nuisance (Tort of Nuisance)
To constitute the tort of nuisance the following essentials are required to be proved
- Unreasonable interference– Interference may cause damage to the plaintiff’s property or may cause personal discomfort to him in the enjoyment of the property. Every interference is not a nuisance. Thus, a person having a house by the roadside must put up with such inconvenience, which is incidental to the traffic. Running a flour mill in a residential area has been held to be nuisance (Radhey Shyam v Gur, Prasad AIR 1978).
(ii) Interference with the use or enjoyment of land– Interference may cause either injury to the property itself (for example, by allowing the branches of a tree to overhang on the land of another person, or the escape of the “roots of a tree, water, gas, smoke or fumes, etc. on the ‘neighbor’s land or even by vibrations) or injury to comfort or health of occupants of certain property.
In Noble v Harrison (1926), however, held that the fact that the branch of tree was overhanging on the highway was not nuisance, nor was the nuisance created by its fall as the defendant neither knew nor could have known that the branch would break and fall. However, projections on private land constitute nuisance, as there is an interference with enjoyment of one’s property.
Under the tort of nuisance, a person cannot increase the liabilities of his neighbour by applying his property to special uses, whether for business or pleasure. Thus, a person carrying on an exceptionally delicate trade cannot complaint an injury is caused by his neighbour doing something lawful on his property (Robinson v Kilvert).
Damages in Nuisance
In an action for nuisance, actual damage is required to be proved. In the case of public nuisance, ‘the plaintiff can bring an action in tort only when he proves a special damage to him. In private nuisance, although damage is one of the essentials, the law will often presume it.
Defenses to Nuisance
(i) Prescription-‘ A right to do an act, which would otherwise be a private nuisance, may be acquired by prescription (i.e. by elapse of certain number of years). A right to commit a private nuisance maybe acquired as in easement if the same has been peaceably and openly enjoyed as an easement and of right for a period of 20 years;
(ii) Statutory authority– An act done under the authority of a statute is a complete defence.
However, there are certain intellectual but unacceptable defenses to nuisance:
(i) Nuisance due to act of others- Sometimes the act of two or more persons, acting independently of each other, may constitute a nuisance although the act of any one of them alone would not be so.
Public good- It is no defence to say that what is a nuisance to a particular plaintiff is beneficial to the public in general, otherwise, the public utility undertaking could be held liable for the unlawful interference “with the rights of individuals.”
(iii) Reasonable care- Use of reasonable care to prevent nuisance is generally no defence.
(iv) Plaintiff coming to nuisance- It is no defence that the plaintiff himself came to the place of nuisance. A person cannot be expected to refrain from buying a land on which nuisance already exists.
Abatement of Nuisance
An occupier of land is permitted to abate, i.e. to terminate by his -own act, nuisance which is ‘affecting his land. For example, he may cut the branches (overhanging) or the roots of the neighbour’s trees which have escaped to his land. Generally before abatement is made, a “notice’s to the other party is required unless the nuisance constitute a danger to the life or property. When the abatement is possible without going on the wrongdoer’s land, the same may be done without notice.
It is a remedy which is not favoured by the law as it may lead to breach of the party abating a nuisance must be careful not to interfere with the property the wrong-doer (thus the abater should not appropriate to himself the “branches of ﬂie overhanging tree or even the fruits found on them) in excess of what is necessary to abate the nuisance, and if there are alternative methods of abatement the least injurious method must be adopted. A private individual cannot abate a public nuisance, unless it causes him some special and peculiar harm; the remedy lies in the writ.
PAHUJA LAW ACADEMY
- The word ‘nuisance’ is derived from the word nuir (to do hurt, to annoy), which is a
(a) Latin word
(b). French word;
(c) Greek word,
(d) Roman word.
- Mark the correct statement:
(a) Damages -cannot be claimed if nuisance is of temporary nature.
(b) Damages can be claimed if nuisance is of temporary nature and an isolated happening.
(c) Damages can be claimed even if nuisance is temporary in nature, but it should not be an isolated happening.
(d) None of the above.
- Mark the incorrect statement:
(a) An act, which is otherwise nuisance, does not become nuisance if it has been done with an evil mind.
(b) “An act done with an evil mind becomes a nuisance if it amounts to Unreasonable interference in comfort of the other person.
(c) Malice is an essential ingredient of nuisance.
(d) All the above statements are correct.
- Nuisance is of two kinds:
(a) Public and common nuisance.
(b) Public and private nuisance.
(c) Public or common nuisance and private nuisance
(d) Public and private or common nuisance.
- Public nuisance
(a) Materially affects the reasonable comfort and convenience of life of a class of subjects who come within the sphere or neighbourhood of its operation.
(b) ‘affects life of a class of subjects who come within the sphere or neighbourhood of its operation.
(c) affects a person who comes within the neighbourhood of its operation.
(d) is described as unlawful interference with a person’s use or enjoyment of land or some right over origin connection with it.
- In private nuisance
(a) Interference causing damage to other’s property or causing personal discomfort to the others in the enjoyment of property is essential.
(b) Every interference is not nuisance.
(c) Every individual living in society has to tolerate interference to some extent
(d) All the above statements are correct.
- Mark the incorrect answer:
(a) Interference with the enjoyment of land means injury to the property itself
(b) Interference with the enjoyment of land means injury to comfort of occupants of certain property
(c) Interference with the enjoyment of land means injury to the person related with land.
(d) Both (a) and (b) are correct.
- “The test of nuisance causing personal discomfort is
(a) An ideal standard of discomfort.
(b) Absolute standard of discomfort.
(c) Actual local standard of discomfort.
(d) Substantial discomfort.
- In nuisance, a defendant is liable to ‘unusually sensitive plaintiff
(a) Only in personal injury cases.
(b) Only in property injury cases.
(c) Both personal injury and property injury cases.
(d) None of the above.
- For an action of nuisance, the defendant can put up the following defences
- The place is suitable for the purpose.
- It is for the benefit of the residents of the locality.
- It is done under statutory authority.
- The plaintiff has consented to the act.
Of the above statements
- I, II and III are correct.
- II, III and IV are correct.
- I, III and IV are correct
- III and IV -are correct
Nervous Shock (Reasonably Foreseeable Consequence of Negligence)
The common law gives no damages for grief, emotional distress, anxiety etc. Under ‘nervous shock’, a claim for damages can “be made without showing direct impact or fear of immediate personal (bodily) injuries. But it is only the’3shock, which can be measured by direct consequences son bodily activity, which can form the basis for an action. The rationale behind is that the body is controlled by its nervous system. Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result of emotional disturbance, fear or sorrow.
It may be noted that this branch of law is comparatively of recent origin. The courts have been quite reluctant to award damages for emotional disturbances, such as the difficulty of proving the link between the defendant’s conduct and the shock to the plaintiff, the risk of fictitious claim and excessive litigation. The nervous shock may arise due to negligence or intentional wrongdoing.
The plaintiff could suffer nervous shock by witnessing (seeing or hearing) personal injury (or an accident) or destruction of his property caused by the defendant’s wrongful act. The plaintiff must be so placed where injury” through nervous shock can be foreseen by a reasonable man. [Bourhill (or Hay) v Young_( 1943) A.C. 92]. The plaintiff need not be in the area of physical injury to himself but his proximity to the accident should be sufficiently close in time and space.
The primary victim need not be a near relative of the plaintiff. Thus, where a crane driver (plaintiff) suffered a nervous shock when he saw that by the breaking of a rope of crane its load fell into a ship where some men were at work was allowed damages. However, where plaintiffs suffered nervous shock when disaster at a football match was televised live and in news bulletins, they were not allowed damages.
In Dulieu v White (1901) 2 K.B.669, a pregnant woman who was standing behind the bar of a public house, suffered shock when the defendant’s servants negligently drove a horse van into that house. The defendant was held liable. In Hambrook v Stokes Bros (1925) I K.B. 141, held that it is not necessary that shock must be such as arises from reasonable fear of immediate personal injury to oneself. In this case, a motor lorry, leﬂ unattended with the engine running, started off by itself and ran violently down the incline. A lady, who -had been walking up, the street with her children, had just parted with them at the point where the lorry was heading. A bystander told her that a child answering the description of one of her children had been injured. She suffered shock and died. The defendant was held liable. ‘ .
However, in King v Phillips (1953) 1. Q.B- 429, the defendant was held not liable on the ground that the mother was, wholly outside the area of reasonable apprehension. In this case, a taxi driver backed his taxicab negligently and ran into a child on a tricycle immediately behind him. The child’s mother, who was in her house, 70 or 80 yards away, heard him scream and looking out of a-window saw the cab back into a tricycle, but she could not see the, child. She suffered nervous shock this case requires ‘consideration (Winfield).
In Bourhill v Young, a motorcyclist collided with a motorcar and was killed. The plaintiff, a fishwife, standing about 45 feet from the point of impact heard the noise. After the body of i the motorcyclist had been removed she happened to go to the scene of the accident and saw the blood on the road. She suffered nervous shock. It was held that the deceased could not be expected to foresee any injury to the plaintiff and, thus, “he did not owe any duty of care to her.
In McLaughlin v O, Brian (1982) 2 All ER 298, the plaintiff’s husband and three children were involved in an accident caused by the defendant’s negligence, in which one child was killed and others were seriously injured. After being told of the accident, the plaintiff was taken to the hospital where she saw the injured husband and children and heard about the death of her daughter. She suffered nervous shock. She was allowed damages even though she was not at or near the scene of the accident at that time or shortly afterwards.
In Ownes v Liverpool Corpn. (1939) 1 K.B. 394, a funeral procession was going along a road, a tram-car violently collided with a hearse and caused the coffin to be overturned as a result of which the mourners at the funeral suffered shock. The mourners were allowed damages for mental shock, although there was no apprehension, or actual sight, of injury to a ‘human being.
- State which of the following statements is correct:
(a) A person can get relief under tort of negligence only when the act causes some physical injury.
(b) They would be liable because ‘Y’ had a duty to take care though he not negligent.
(c) They would not be liable because ‘Y’ did not owe any duty of c towards her and he was also not negligent to her.
(d) None of the above would be a valid proposition.
- ‘X’, a fisherwoman alighted from a tram car. While the conductor was helping her to put the fish basket on her head, a motorcyclist ‘Y’ passed the tram and immediately afterwards negligently collided with ‘Z’s motorcar. ‘Y’ was killed. ‘X’ did not see ‘Y’ or the accident which occurred fifteen yards away because her view was blocked by the tram. She, however, heard the collision and after ‘Y’s body had been removed; she approached the spot and saw the blood left on the road. In consequence, she had a nervous shock and gave birth to a stillborn child as she was then eight months’ pregnant. If she sues the representatives of ‘Y’ for ‘Y’s negligence, then
- They would be liable because ‘Y’ owed a duty to take care towards her.
- They would be liable because ‘Y’ had a duty to take care though he was not negligent.
- They would not be liable because ‘Y’ did not owe any duty of care towards her and he was also not negligent to her.
- None of the above would be a valid proposition.
- In Which of the following cases, damages on account of nervous shock be claimed:
(a) A, by way of practical joke, falsely represented to P that her had met with a serious accident and by reason of that P suffered a nervous shock.
(b) A suffered nervous shock when disaster at a football match was televised ‘live and in news bulletins but without depicting the suffering or of recognizable individuals.
(c) Both (a) and (b)
(d) None of the above.
FALSE IMPRIOSNMENT AND OTHER F0RMS OF TRESPASS
Trespass, in its widest sense, signifies, any transgression or offence against the law nature, of society, or of the country, whether relating to a man’s person or to property. The principle of ‘trespass’ was that any direct invasion of a protected interest from a positive act was actionable subject to justification. But the most obvious acts of trespass are:
(1) Trespass viet armis or Trespass to Person
(2) Trespass quare clqusum fergit or Trespass to Land.
(3) Tresspass de bonis asportatis or Trespass to Goods or Chattels.
There are two important rules of trespass: (i)-that it is for the defendant to plead and prove justification and not for the plaintiff to show that the defendant’s conduct was unreasonable; and (ii) that damage is not an essential element and need not be proved by the plaintiff. The importance of trespass lies in that it can be used for the protection of one’s liberty and indication of constitutional rights. “Trespass trips up the zealous bureaucrat, the eager policeman and the officious citizen”.
Trespass to Person –
The three chief forms of trespass -to person are: Assault, Battery and False Imprisonment.
(a) False Imprisonment –
False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification. “Every restraint of the liberty of one. person by another is in law an imprisonment and, if imposed without lawful cause, constitutes a false imprisonment which is both a criminal offence and an actionable tort” (Ram Pyare Lal v Om Prakash 1977 Cr LI 1984).
To constitute, this wrong ‘imprisonment’ in the ordinary sense is not required, as a person may be falsely imprisoned, viz. by being confined within the four walls or by being prevented from leaving the ‘place where he is (that may be his own house or an open field or a bus/train). The detention of the person may be either (a) actual, i.e. physical (laying hands upon a person), or (b) constructive, i.e. by mere show of authority (an officer telling anyone that he is wanted and making him accompany).
Under criminal law whether the restraint is total (‘wrongful confinement’, Sec.340, IPC) or partial (‘wrongful restraint’, Sec.339, IPC), the same is actionable. A partial restraint, is not actionable under the civil law. Thus, when a man is prevented from going to .a particular direction but is free to go to any other direction or to go back, there is no false imprisonment. In Bird -v, Jones (1845) V7 QB 742, the plaintiff was not allowed by the defendants to cross a bridge through footway but he was free to cross the same through the carriage way. Since the restraint was not total there was ‘held to be no false imprisonment.
The total restraint results in false imprisonment, however, short its duration may be, viz. a few minutes [Mee v Cruikshank (l902)86 LT 708]. If there are unrisky ‘means of escape’ the restraint cannot be termed as total.
Knowledge of a person that he has been imprisoned is not required and a person may be imprisoned without his knowing it, e.g. while he is asleep, drunk, or unconscious. In Merring v Grahame White Aviation Q0, (1920) 121 LT 44, an employee suspected of having stolen the company’s property was called to the company’s office and was asked to stay in the waiting room, one or two employees remained outside the room. It was held that the plaintiff’s detention by the company’s officers before the police had arrived was wrongful and amounted to false imprisonment.
For false imprisonment the detention should be without any lawful justification. Making a false complaint to the police by the defendants leading to the arrest of the plaintiffs, if without any justification, will make the defendants liable for false imprisonment. A person may be liable for false imprisonment not only when he directly arrests/detains the plaintiff, but also when he was “active in promoting; or causing the arrest or detention. Bad faith is not necessary to be proved.
If a police officer orders an arrest without having such a power or ‘reasonable suspicion’ he is responsible for the same..If reasonable suspicion arises subsequent‘ to the arrest as a result of questioning the accused, the arrest and detention till that stage would be invalid. A policemen should disclose the reason for the arrest. Otherwise he will be liable for false imprisonment. Similarly, when a prisoneh’s jail sentence is over, his detention thereaﬁer will result in-false imprisomnent. t
A person -arrested by thetorders of a judicial oﬁicer cannot sue the judicial oﬂicer for false imprisonment, unless the judicial boﬁicer acts recklessly, illegally or maliciously, i.e. camrot be said to be acting judicially [Anwar Hussain v Ajby Kumar AIR 1965 SC 165.1]. A_ person detained by a private individual must be quickly handed over to the police, otherwise it will amount to false imprisonment. ‘
When detention is .justiﬁed- If a man entered certain premises subject to certain reasonable conditions it is no wrong to prevent shim ﬁtomaleaving those premises until and unless those conditions are fulﬁlled. Thus, not allowing a person to go until he pays reasonable charges is no false imprisonment. ~, “’ _ –
Similarly, when there is volenti non fit injuria on the part of the plaintiff, the defendant, cannot be made liable. Thus, a /miner going into coal mine by his own consent carmot sue for false impn’somnent»ifT he himself wrongfully stops the work and wants to -be taken out before the usual time.
Law permits the arrest of a person when he has committed some offence. Such arrest may be made by, a magistrate, a police officer or a private individual according to the circumstances. In, John Lewis & Co. v Times (l952)l All ER 1203, the plaintiff and her daughter went to a ‘shop, where the daughter committed theft. Both of them were detained in the office and were told to wait for “managing director’s decision, where they remained for an hour. He decided to hand over them to the police. On trial the daughter was found guilty of theft, but the mother not. The mother sued for false imprisonment. The defendants were held not liable, in as much as she was not detained beyond a reasonable time for the managing director to make the decision.
Remedies: False imprisonment
(i) Action for damages – The plaintiff is entitled to recover by way of general “damages compensation for the indignity or suffering which the false imprisonment has caused. They should be exemplary where the plaintiff’s complaint is oppressive, arbitrary and unconstitutional action by the State or its servants
In an action for trespass the burden to prove justification is on the defendant. Thus, in case of false imprisonment, the plaintiff is only required to prove that he was imprisoned by the defendant; he is not required to prove special damage. It is then for the defendant to prove the lawful justification for the same and it is not for the plaintiff to prove its absence. It is not necessary for the plaintiff to prove any wrongful intention, malice, negligence, etc. on the defendant’s part.
(ii) Self-help – A person is authorised to use reasonable force in order to have an escape from detention instead of waiting for a legal action.
(iii) Habeas Corpus – It is a speedier remedy for procuring the release of a person wrongfully detained (Arts. 32/226 of the Constitution). By this writ the person detaining is required to produce the detained person before the court and justify the detention.
A ‘battery’ is “intentional and direct application of ‘force to another person without any lawful justification”. Use of force, however, trivial, is enough; physical hurt need not be there. Least touching of another in anger is a battery (Cole v Turner 87 ER 907). Battery requires actual contact (may be indirect) with the body of another person so a seizing and laying hold of a person so as to restrain him, spitting in the face, throwing over a chair or carriage in which another person is sitting, throwing water over a person. taking a person by the collar, causing another to be medically examined against his or her will; are all held to amount to battery.
The force maybe used through any object like stick, bullet, or any other missile. Infliction of heat, light, electricity, gas, odour, etc. would probably be battery if it can result in physical injury or personal discomfort (Winfield). Mere passive obstruction, ‘like a door/wall, however, cannot be considered as the use of force [In Innes v Malia (l844)l C & K 257, a policeman unlawfully prevented the plaintiff from entering the club premises].
An unwanted kiss will be battery. However, touching a person in a friendly manner or calling his attention to something is not battery. Putting handcuffs to an undertrial prisoner and then chaining him like a dangerous animal is an unjustifiable use of force. Harm which is unintentional or caused by pure accident is not actionable. Thus, where A fired at a pheasant but the pellet accidentally wounded a person, A is not liable for battery unless the A’s act is willful or negligent.
Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant. (Winfield). An assault is an attempt or a threat to do a corporeal hurt to another; ‘coupled with an apparent present ability and intention to do the act. ‘The menacing attitude and hostile purpose go to make the assault unlawful; the actual contact is not necessary in an assault. The word ‘assault’ is incorrectly used by laymen as meaning the actual infliction of force by one person on another such as when A beats B. Thus ‘popular assault begins when legal assault ends’.
It is also essential that there should be prima facie ability to do the harm. If the fist or the cane is shown from such a distance that the threat cannot be executed, there is no assault. ‘Similarly, mere verbal threat is no assault unless it creates reasonable apprehension in the plaintiff’s mind that immediate force will also be used; Pointing a loaded pistol at another is an assault. If the pistol is not loaded then even it may be an assault, if pointed at such a distance that, if loaded, it may cause injury. If the plaintiff knows that the pistol is unloaded there is no assault.
A Interception of a blow aimed at the plaintiff by a third person will not absolve the defendant from liability. It was so held in Stephens v Myers (1830)4 C &P .349. The plaintiff was in the chair at a parish meeting. The defendant who sat seven places away on the same table proved unruly, whereupon a resolution to eject him was passed. Then the defendant said that he would rather pull the plaintiff out of the chair, he moved towards the chair with clenched fists upon the plaintiff but he was stopped. The defendant, was held liable for assault.
Distinction between Assault and Battery
In assault, actual contact or infliction of force is not necessary though it is in a battery. Generally assault precedes battery. Showing a clenched fist is an assault but actual striking amounts to battery. Throwing water upon a person is an assault but as soon as the Water falls on him’ it becomes battery. If the person is about to sit on a chair and the chair‘ is pulled,‘ there is assault so long as he is in the process of falling on the ground but as soon as his body touches the floor, it will be battery.
It is, however, not necessary that every battery should include assault. A blow from behind, without the prior knowledge of the person hit, results in a battery without being preceded by an assault. It may be noted that besides a civil action for an assault and battery, the criminal proceedings may also be taken against the wrong- doer. Assault is defined in the Indian Penal Code, Sec. 351; while battery is equivalent to criminal force which is defined in Sec. 350,- IPC.
 Trespass to Land
Trespass to land. means “interference with the possession of land without justification.” To .constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage is necessary. “Every invasion of a private property, be it even so minute, is a trespass.” “If the defendant places a part of his foot in the plaintiffs land unlawfully, it is in law as much a trespass as if he had walked half a mile on it” [Ellis v Loftus Iron Co. (\l374)”LR ’10 CP 10]. Trespass may be committed (1) by entering upon the land of plaintiff, or (2) by remaining there, or (3) by doing an act affecting the sole possession of the plaintiff, in each case without justification.
Trespass could be committed either by a person himself or doing the same through some material object e.g. throwing of stones on another person’s land, driving nails into the wall, allowing the diffusion of gas or invisible fumes, leaving debris upon the roof, allowing cattle to stray on another person’s land. It is, however, no trespass when there is no interference with the possession and the defendant has b merely deprived of certain facilities like gas and electricity.
A man is not liable for trespass committed involuntarily (e.g. when he is thro upon the land by someone else), but he is liable if the entry his intentional, even thou ¢~ made under a mistake, e.g. if in moving in his own land, a man inadvertently allow his blade to cut through into his neighbour’s field, he is guilty of a trespass. Entry upon another’s land constitutes trespass to land whether or not the entrant knows that he is trespassing [Joliﬂi v Willmett & Co. (l97l)l .All BR 478]. If the defendant consciously enters upon a land believing it to be his own but which turns out to be of the plaintiff, he is liable for trespass. The defendant may successfully plead inevitable accident in his defence. Trespass in civil law differs from that in criminal law on this point. ‘According to Sec. 441, IPC the offence of criminal trespass consists in entering or remaining on the land of another person with an intent to commit an offence or intimidate, insult or annoy any person in possession of such property.
Trespass ‘is a wrong against possession rather than ownership. Therefore, a person in actual possession can bring an action even though, against the true owner, his possession was wrongful. An owner of land who neither has possession nor any immediate right to possess it, cannot bring an action for trespass.
Trespass ab initio
When a person enters certain premises under the authority of some law and after having entered there abuses that authority by committing some wrongful act there, he will be considered to be a trespasser ab initio to that property. It is necessary that the person to be made liable as trespasser ab initio must do some positive wrongful act (misfeasance) rather than a mere omission to do his duty (non-feasance). Thus, refusing to pay for the refreshment in an inn does not make the visitor a trespasser ab initio as non-payment, is a mere act of non-feasance which is not enough for .a trespass ab initio [Six Carpenters case (1610) 8 Co. Rep. 146a].
Defences to Trespass
Any justifiable entry or interference will negative liability for trespass. Justification by law, private defence, inevitable accident, necessity and parental authority, etc. are well recognized lawful defences for trespass. It may be noted that every continuance of trespass is a ‘fresh’ trespass,‘ in respect of which a new cause of action arises from day to day as long as the trespass continues.
Remedies for Trespass
(i) Re-entry – The person entitled to possession can enter or re-enter the premises in a peaceable manner.
(ii) Action for ejectment – person in lawful possession when dispossessed of certain immovable property without due course of law, can recover back the property by filing a suit within 6 months of his dispossession.
(iii) Action for mense profits – Apart from the right of recovery of land by getting the trespasser ejected a person who was wrongly dispossessed of his land may also claim compensation for the loss which he has suffered during the period of dispossession. Mense profits refers to the profits taken by the defendant during the period of his occupancy.
(iv) Distress damage feasant-This right authorises a person in possession of land to seize the trespassing cattle or other chattels. He can detain – them until compensation has been paid to him for the damage done.
 Trespass to Goods
Trespass to goods is wrongful direct physical interference with the possession of them, viz. throwing stones on car, shooting birds, beating animals, removing or injuring or destroying goods, infecting the animals with disease or chasing animals to ‘make them rim away from its owner’s possession. The plaintiff must at the time of trespass have the present possession of goods, either actual or constructive (e.g. an agent, a bailee), or a legal right to the immediate possession (the proof “of title to the goods not required).
The wrong may be committed intentionally, negligently, or even by a honest mistake. In Kirk v Gregory (1876)1 Ex D 55, on (A’s death his sister-in-law removed some jewellery from the room where his dead body was lying, to another room under a reasonable but mistaken belief that the same was necessary for its safety. The jewellery got stolen. A’s sister-in-law was held liable for the trespass of jewellery.
Detention is the adverse withholding of the goods of another. Detinue is an action wider which the plaintiff (lawfully entitled to possession) can recover the goods from the defendant when the same are being wrongfully detained by the latter. The injury complained of is not the taking, not the misuse and appropriation of the goods, but only the detention. Where the defendant having taken a cycle on hire from the plaintiff failed to return the same, he was held liable to pay the plaintiff the estimated value of the cycle i.e. Rs.300, under an action for detinue.
If the original possession is-lawful but subsequently the goods are wrongfully detained, an action for detinue can be brought. Thus, if a bailee refuses to deliver the goods after the bailment is determined he is liable indetinue. It may be noted that trespass de bonis asportatis, i.e. wrongful taking of goods is wrongful ab initia, whilst in detinue possession is acquired rightfully but detention of the goods is wrongful.
A lien on the goods by the defendant is a good answer (Justification). It may be noted that when the goods are returned to the plaintiff in a damaged condition, the remedy of detinue is of no help to the plaintiff. Detinue stands abolished in England by the Torts (Interference with Goods) Act, 1977 which however allows for conversion remedies that were available under common law for detinue. There is. No corresponding Act in India. Sections 7 and 8 of the Specific Relief Act, 1963 provide for the recovery of specific movable property at the suit of a person entitled to immediate possession generally when the defendant is an agent or a trustee for the plaintiff.
Conversion (also called ‘Trover’) consists in wilfully and without any justification dealing with goods in such a manner .that another person, who is entitled to immediate use and possession of the same, is deprived of them. It is dealing with the goods in a manner which is inconsistent with the right of the owner. Keeping and refusing to deliver the plaintiff’s goods, putting them to one’s own use or consuming them, destroying them or damaging‘ them in a way that they lose their identity, etc., all amount-to conversion.
In Richardson v Atkinson ( 1723)l Stra 576, the-defendant drew out some wine “out of the plaintiffs cask and mixed water with the remainder to make good the deficiency. He was held liable for the conversion of the whole cask as he had converted part of the contents by taking them away and the remaining part by destroying their identity.
A person dealing with the goods of another person in a wrongful way does so at his own peril and it is no defence that he honestly believed that he ‘has a right to deal with the goods or he had no knowledge of the owner’s right in them. According to Lord Porter, “Conversion consists in an act intentionally done inconsistent with the owner’s right, though the doer may not know of, or intend to challenge, the property or possession of the true owner.
“If I snatch your hat from your head and throw it at any other person that is trespass to your hat, but it is not conversion, for I am not questioning your title to it. But if I take it from you with _intent to steal it, that is conversion as well as trespass” (Winfield). However, .a-mere taking unaccompanied by an intention to exercise permanent or temporary dominion may be a trespass, but is no conversion [Fouldes v Willonghby (1841)8 M & W 50].
A wrongful sale of goods is conversion. The owner may also recover from the purchaser because the general rule protects interest of the owner as against the buyer. If a warehouseman misdelivers goods even by mistake he will be liable for conversion [Devereaux v Barclcgz (18l9)2 B & Ald 702]. The payee of a crossed cheque especially endorsed it to the plaintiffs, a stranger who having obtained possession of the cheque endorsed it in the favour of himself and presented it at the defendants’ bank and thus got it encashed, it was held that the defendants were liable to the plaintiffs in -an action for conversion for the amount of the cheque.
The law, however, excuses certain acts, and if they were done in bona ﬁde ignorance of the plaintiff ’s title there may be no conversion. The finder of goods is justified -in taking steps for their protection and safe custody till he finds the true owner. For an action for conversion it is also necessary that the plaintiff must’ve a right to the immediate possession of the goods at the time of their conversion. Such an action may be brought by a finder of goods, a bailee or pledgee of the goods, an auctioneer, a person in possession under a hiring agreement, or master of a ship. If the plaintiff cannot prove his right of possession, an action for conversion will fail.
The finder of goods is a ‘person in possession’ (unless he is a trespasser). Thus, in Armory v Delamirie (1721)1 Str 505, the chimney sweeper’s boy, who after finding a jewel had given it to a jeweller to be valued, was held entitled to recover its full value from the jeweller on his refusing to return the same. l
Distinction between Trespass hand; Conversion
(1) Trespass is essentially a wrong to the actual possessor and therefore cannot be committed by a person in-possession. Conversion, on the other hand, is a wrong to the person entitled to’ immediate possession.
(2) To damage or meddle with the chattel of another, but without intending to exercise an adverse possession over it, is a trespass. In an action for conversion, the defendant’s intended act must, amount to denial to the plaintiff’s right /title to the goods to which he is lawfully entitled. Thus, removing- the goods from one place to another may be trespass but it is not conversion.
(3) The gist of the action, in trespass is the force and direct injury inflicted; in conversion, it is the deprivation of the goods or their use. If a person snatches my gold ring -with a view to steal it, the act amounts to both trespass and conversion. But if a person borrows my ring for his use but later on sells it he will be liable for conversion only.
Distinction between Detinue and Conversion
Detinue is distinct from conversion in that the latter is never available where there is mere detention without any –wrong to the plaintiff’s title, as conversion is essentially a wrong to one’s ownership of goods and involves misuse and appropriation of goods. It may be noted that under old English law, detinue had a great disadvantage in that a defendant under that action can defeat the plaintiff’s claim by getting “a number of compurgators to swear in “his favour although in fact they knew nothing of the facts of me case. No wonder, that in course of time, honest sufferers when faced with such a risk gave up this remedy and began to favour the more effective remedy of conversion.
PAHUJA LAW ACADEMY
- Which of the following statements is true?
(a) False imprisonment consists of a total restraint on the liberty of a person.
(b) However, short the restraint may be on the liberty of a person, it amounts to false imprisonment.
(c) Imprisonment to be false must be without lawful justification.
(d) All of the above.
- “The infliction of bodily restraint which is not expressly” or impliedly authorized by law is the false imprisonment.” Who said it?
- Mark the correct statement:
- There is nothing called false imprisonment when a man is already imprisoned;
- False imprisonment must relate to total restraint of liberty of the person under unlawful detention.
- There may be total or partial restraint of liberty in false imprisonment.
- None of the above.
- In false imprisonment it is necessary that the
(a) Person should be imprisoned in jail.
(b) Person should be contained within four walls.
(c) Person should be guarded by armed guards.
(d) Person should not have liberty to go beyond certain limits.
- A person may be falsely imprisoned in
(a) his own house.
(b) an open field.
(c) a bus/train.
(d) all of the above.
- Which of the following statements is incorrect?
- If there are means of escape, the person cannot be said to be put in false imprisonment.
- If a man is prevented from going to a particular direction but is free to go to any other direction or to go back, there is no false imprisonment.
- Both the statements are correct.
- Both the statements are incorrect.
- “A prison may have its boundary, large or narrow, visible or tangible, or, though real, still in the conception only; it may itself be moveable or fixed: but a boundary it must have; and that boundary the party must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the party imprisoning would confine him, except by prison breach. In which of the following cases, this statement was made?
(a) Herring v Boyle
(b) Bird v Jones.
(c) Merring’s case.
(d) Mee v Cruikshank.
- A person has enclosed a portion of the pavement for giving a reception to the marriage procession on the occasion of his daughter’s marriage. No one, who is not invited, is allowed to pass through the pavement. Z, who tries to cross, is prevented.
(a) Z is falsely imprisoned.
(b) Z is not falsely imprisoned.
(c) Z is not put in false imprisonment as he is firee to move in any other direction.
(d) Any restraint on Z’s movement would amount to false imprisonment.
- In which of the following cases, A is put in false imprisonment?
(a) A is locked in a room which has window five feet above the room’s floor.
(b) A is put within field which is surrounded by a 500 voltage live electric wire.
(c) A is put in a hut with a wooden door which is fastened with a single nail.
(d) A is put in a prison compound whose walls are 8 feet high but there is
- Mark the incorrect statement:
(a) Under criminal law, whether the restraint is total or partial, the same is actionable.
(b) Under law of tort, a partial restraint is not actionable.
(c) False imprisonment is actionable per se i.e. without proof of special damage..
(d) In an action under law of tort, the restraint may be total or partial.
PAHUJA LAW ACADEMY
REMOTENESS OF DAMAGE
- (a) Discuss the rule relating to remoteness ‘of damage. Also make a critical assessment of the merits and demerits of the rules laid down in the Repolemis and Wagon Mound Cases.
(b) A, who was in a shotting party, fired at a pheasant. One of the bullets from his gun glanced of the bough of a tree and accidently wounded B who, was engaged in carrying cartridges and gamer for the party. B sues A for the damages. Decide the issues involved.
- Write a critical note on remoteness of damages with reference to the law of torts. Refer to at least two leadings cases.
PAHUJA LAW ACADEMY
Remoteness of damage
The problem of Remoteness
After the commission of a tort, the question of defendant’s liability arises. The consequences of a wrongful act may be endless or there may be consequences of consequences.
No defendant can be made liable ad infinitum for all the consequences which follow his wrongful act. As Lord Wright has said:
The Law cannot take account of everything that follows wrongful act;
Remote and proximate damage
How and where is such a line to be drawn?
To answer this question we are to see whether the damage is too remote a consequence of the wrongful act or not. If that is too remote the defendant is not liable. If, on the other hand, the act and the consequences are so concerned that they are not too remote but are proximate, the defendant will be liable for the consequences.
In Scott v. Shepherd, A threw a lighted squib into a crowd, it fell upon X, X in order to prevent injury to himself threw it further it fell upon Y and Y in his turn did the same thing and it fell on B as a result of which B lost one of his eyes. A was held liable to B. his act was proximate cause of the damage even though his act was farthest from the damage in so far as the acts of X and Y had intervened in between.
Nocus actus interveniens or remoteness of consequence i.e. the mischief of the child was the proximate cause and the negligence of the defendant’s servants was the remote cause.
In Lampert v. Eastern National Omnibus Co., due to the negligence of the defendants, the plaintiff, a married woman, was injured and that resulted in her severe disfigurement, sometime afterwards she was deserted by her husband. She wanted to claim damages for the same. It was found that the real cause of the desertion of the plaintiff was not her disfigurement but the estranged relations between the plaintiff and her husband, which existed even before the accident and, therefore, the defendant was held not liable on that account.
There are two main tests to determine whether the damage is remote or not:
- The test of reasonable foresight
According to this test, if the consequences of a wrongful act could have been foreseen by a reasonable man, they are not too remote.
- The test of directness
Re Polemis and Furness, Withy & Co. Ltd, According to the test of directness, a person is liable for all the direct consequences of his wrongful act, whether he could have foreseen them or not; because consequences which directly follow a wrongful act.
According to Scrutton, L.J.: “To determine whether an act in negligent, it is relevant whether any reasonable person would foresee that the act would cause damage: if he would not, the act is not negligent.
The test of Reasonable Foresight: The Wagon Mound Case
The facts of the case are as follows:
The Wagon Mound, an oil burning vessel, was chartered by the appellants. Overseas Tankship Ltd, and was taking fuel oil at Sydney port. At a distance of about 600 feet, the respondents, Morts Dock Company, owned a Wharf, where the repairs of a ship including some welding operations were going on. Due to the negligence of appellant’s servants, a large quantity of oil was spilt on the water. The oil which was spread over the water was carried to the respondent’s wharf. About 60 hours thereafter, molten metal from the respondent’s wharf fell on floating cotton waste, which ignited the fuel oil on the water and the fire caused great damage to the wharf and equipment. It was also found that the appellants could not foresee that the oil so spilt would catch fire.
On appeal, the Privy Council held that Re Polemis was no more good law and reversed the decision of the Supreme Court. Since a reasonable man could not forsee such injury, the appellants were held not liable in negligence even though their servant’s negligence was the direct cause of the damage.
The first authority for the view advocating the directness test is the case of Smith v. London & South Western Railway Company, where channel B. Said: “Where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not…… but when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not.
In Smith v. London and South Western Railway Co. The railway company was negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry weather. Spark from the railway engine set fire to the material. Due to high wind, the fire was carried to the plaintiff’s cottage which was burnt. The defendants were held liable even though they could not have foreseen the loss to the cottage.
The above case was accepted with approval in Re Polemis and Furness, Withy & Co. in that case, the defendants chartered a ship. The cargo to be carried by them included a quantity of Benzene and/or petrol in tins. Due to leakage in those tines, some of their contents collected in the hold of the ship. Owing to the negligence of the defendants servants, a plank fell into the hold, a spark was caused and consequently the ship was totally destroyed by fire. The owners of the ship were held entitled to recover the loss- nearly Pounds 200,000, being the direct consequence of the wrongful act although such a loss could not have been reasonably foreseen.
PAHUJA LAW ACADEMY
REMOTENESS OF DAMAGE
- The doctrine of ‘remoteness of damage’ implies that
- No person can be made liable ad infinitum for all the consequences which follow his wrongful, act; a person is held responsible in law only for consequences which are not remote.
- A negligent persons can be made liable even for-remote consequences.
- A person can claim damages for the indirect acts of the negligent person.
- None of the above.
- Which of the following statements is incorrect:
- The ‘test of reasonable foresight’; means that if the consequences of a wrongful act could have been foreseen by a reasonable man they are not too remote.
- The ‘test of directness’-implies that a person is liable for all the‘ direct consequences of his wrongful act, whether he could have foreseen them or not,
- The test of reasonable foresight’ now holds the field.
- The ‘test of directness’ now holds the field.
- The rule laid down in Re Polemis case is that the defendant shall be liable for all
- Direct consequences of his act.
- Direct consequences of his act, if he could foresee some damage to the plaintiff from his act.
- Direct consequences of his act, only if he could foresee the kind of damage which has actually occurred.
- foreseeable damage.
- “After the event even a fool is wise. But it is not the hindsight of a fool, it is the foresight of a reasonable man which alone can determine responsibility.” The above observation was made in
- Re Polemis case.
- Hughes v Lord- Advocate.
- Wagon Mound, case.
- Liesbosch Dredger v Edison.
- The defendants, employees of the Municipal Corporation, opened a manhole in the street and in the evening left the manhole open and covered it by a canvas shelter, unattended and surrounded by warning lamps. The plaintiff, an eight-year-old boy, took one of the lamps into the shelter and was playing with it there, when he stumbled over it and it fell into the manhole. A violent explosion followed and the plaintiff sustained brunt injuries”. The Defendants are
- Not liable because injury to the plaintiff is not foreseeable.
- Liable because they should have completed the work before they left.
- Not liable because they acted reasonably.
- Liable because injury resulted from a known source of danger even though an unforeseeable sequence of events.
- In which of the following situations, the damages will not be excluded as too remote:-
- ‘Damage caused, wholly or principally, by the act of the plaintiff himself (contributory negligence).
- Defendant’s act is not the ‘direct cause’ of the damage sustained by the plaintiff.
- Intended consequences.
- Damage is due to the wrongful act of an independent third party.
- The maxim Novus actus interveniens (new acts intervening) implies that
- There are circumstances when an intervening act of third person breaks the chain of causation between the wrongful act and the damage sustained by the plaintiff.
- An intervening act of third party do not breaks the chain of causation between the wrongful act and the damage sustained.
- An intervening act of third party nullifies the wrongful act of the defendant even if the defendant ought reasonably to have anticipated such intervention.
- None of the above.
- In which of the following cases, the maxim novus actus interveniens applies, excluding the damages as too remote:
- A left a loaded gun negligently and his son found it and pointed it in play at P who was injured by the going off.
- A sustained injuries in a train accident and also lost the money which he was carrying on account of theft by a third party.
- Rescue eases.
- Both (a) and (b).
- ‘A’ shot at ‘B’ with a view to kill him. When ‘B’ was being taken to the hospital, a “tree fell upon ‘B’ on the way and ‘B’ died in the hospital a few days later. If it was proved that the falling of the tree caused ‘B’s death, then
(a) ‘A’ shall be responsible for the death of ‘B’.
(b) Falling of tree has broken the chain of causation.
(c) ‘A’ is not ‘liable to pay any compensation to the dependants of ‘B’.
(d) None of the above statements is correct.
- ‘A’ was employed by ‘B’ in his factory and in the course of his employment, he was required to use a hammer manufactured by ‘C’. A’s Works Manager ‘D’ discovered that the hammer was defective but asked him to continue to use it. ‘A’ got injured because of the defect of the hammer. In an action for damages by ‘A’
(a) ‘C’, the manufacturer is liable as he supplied the defective product.
(b) ‘A’, the employee cannot recover as he had the knowledge of the defect.
(c) ‘B’, the employer is not liable because he relied on the manufacturer who supplied the hammer.
(d) ‘C’, the manufacturer is not liable as the knowledge on the part of ‘D’, was a break in the chain of causation between manufacturer’s negligence and plaintiff’s injury.
PAHUJA LAW ACADEMY
The rule of ‘strict liability’ implies
(a) No-fault liability i.e. the fault or negligence of the guilty party is immaterial.
(b) Liability based on fault.
(c) State liability.
(d) Absolute liability.
- The rule of ‘absolute liability’ implies
(a) Strict liability.
(b) Stricter than strict liability.
(c) State liability.
(d) None of the above.
- The rationale of absolute liability is that the undertakers of hazardous activities have to pay
(a) if they are at fault.
(b) Partially even if they are not at fault
(c) Regardless of any fault on their part.
(d) If they have not taken reasonable care.
- A 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 an if he does not do so, is prima facie answerable for all the damage. Which is the natural consequence of its escape. The above rule was enunciated in
(a). Nicholas v Marsland.
(b) Donoghue v Stevenson.
(c) Rylands v Fletcher.
(d) None of the above.
- The rule of strict liability was laid down in Rylands v Fletcher by
(a) Blackburn, J. in 1868.
(b) Lord Atkin in 1635.
(c) Winfield in 1765.
(d) Holt, C J. in 1868.
- To bring the case within the ambit of strict liability, the following are necessary
(a) Some dangerous thing must have been brought by a person on his land
(b) The thing brought by a person on his land must escape.
(c) It must be non-natural use of land.
(d) all of the above.
- The rule in Rylands v Fletcher is not applicable
(a) When the escape is due to the plaintiff’s own default. ‘
(b) When the escape is due to an act of God. ‘
(c) When the damage is, due to
(d) In all the above cases.
- The rule in Rylands v Fletcher does not apply when the escape is due to
(a) Inevitable accident.
(b) Vis Major.
(c) Negligence of the defendant.
- Consider the following statements:
- A circus company keeps wild animals and tames them. One of them escapes and causes injury to a spectator. Company is not liable.
- A person, who brings and keeps any dangerous thing, keeps it at his risk if it escapes and causes damage he is liable.
Of these statements
- Both I and II are true.
- Both I and II are ‘false.
- I is true but II is false.
- I is false but II is true.
- X hired from Y” the ground floor of a warehouse. The upper floor was occupied by ‘B’. Water from the roof collected in a box from which it was discharged by pipes in a drain. A rat gnawed through the box. Through the hole water escaped into the godown of the ground floor and damaged ‘X’s goods. ‘Y’ was held not liable on the ground that
- The escape of water was owing to act of God.
- The escape of water was due to plaintiff’s own default.
- The box in which water from the roof collected was maintained for the common benefit of ‘X’ and ‘Y’.
- None of these.
- MALICIOUS PROSECUTION
Malicious prosecution consists in instituting unsuccessful criminal, or bankruptcy, or liquidation proceedings, maliciously and without reasonable and probable cause. When such prosecution causes actual damage to the party prosecuted, it is a tort for which he can bring an action.
This tort balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusation against innocent persons. The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose [Mohd. Amin v Jogendra Kumar AIR 1947 PC 108]. In an action for malicious prosecution the following essentials have got to be proved by-the plaintiff:
(I) Prosecution by the Defendant
It involve two elements, first that the plaintiff was prosecuted and secondly, that the defendant was the prosecutor. An action not extending to any arrest or seizure of property is not a good cause of action for malicious prosecution howsoever unfounded or malicious it might be.
Prosecution means criminal proceedings against a person in a court of law. A prosecution is there when a criminal charge is made before a judicial officer or at tribunal. In Nagendra Nath Ray v Basahta Das Bairagya, ILR (l929)47 .Cal 25, after a theft had been committed in the defendant’s house he informed the police that he suspected the plaintiff for the same. The plaintiff was arrested by the police but was subsequently discharged by the magistrate. In a suit for malicious prosecution it was held that it was not maintainable as there was no prosecution at all because mere police proceedings are not the same thing as prosecution.
Prosecution should be made by the defendant. A ‘prosecutor’ is a person who is actively instrumental in putting the law in force for prosecuting another. If I tell a policeman that I have had a particular thing stolen from me and that it was seen in X’s possession and the policeman without any further instructions on my part makes inquiries and arrests, it is not I who have instituted the prosecution. I certainly set the stone rolling but it was a stone of suspicion only. In order that a private person can be termed as ‘prosecutor’ he must’ve done something more than merely lodging the complaint with the police, he must’ve been actively instrumental in the proceedings and must’ve made his best efforts (e.g. procures false evidence) to see that the plaintiff is convicted for the offence.
An investigating officer is not liable unless he was a party to the falsity of the case. A pathologist preparing a postmortem reporter-a person appearing merely as a witness cannot be held to be a prosecutor. A malicious reporter to the police for getting a prosecution’ launched on the basis of his evidence is within the catch of the principle [Martin v Watson (1995)3 All ER 559(HL)].
(2) Absence of Reasonable and Probable Cause
The plaintiff has also to prove that the defendant prosecuted him without reasonable and probable cause. The defendant will be deemed to have made reasonable and probable cause when -l (a) he took care to be informed of the facts, (b) he honestly believed his allegation to be true, and (c) the facts were such as to constitute a prima facie case. The prosecutor’s belief should be based on due enquiry.
Reasonable and probable cause means that there are sufficient grounds for thinking that the accused was probably guilty but not that the prosecutor necessarily believed in the probability of conviction. “Probable cause” is not the same thing as “sufficient cause.” The prosecutor should honestly believe in the story on which he acts and in believing in the story he must act like a reasonable prudent man. The test, therefore, is both subjective and objective [Corea v Peiris (1909) AC 549].
The absence of reasonable and probable cause should not be presumed from the dismissal of a prosecution or acquittal of the accused. In Abrath v North Eastern Rly.(1833) 11 QBD 440, one M recovered compensation from the defendant company for personal injuries in a railway collision. Subsequently, the railway company got the information-that M ’s injuries had been artificially created by Dr. Abrath (M’s surgeon). The directors of the railway company made enquiries and obtained legal advice which suggested that Dr. Abrath should be prosecuted. Dr. Abrath was accordingly sued, but was acquitted. He brought an action for malicious prosecution. The court found that the railway company had taken reasonable care to inform itself of the true facts and they honestly believed in their allegations and, therefore they were held not liable.
It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting However, if a prosecutor honestly thinks that the accused has been guilty of a “criminal offence he cannot be initiator of a malicious prosecution [Braj Sunder Deb v Bamder Das AIR 1944 PC l]. The malice to be established is not ‘malice in law’ such as may be assumed from a wrongful act, done intentionally, without just cause or excuse, but ‘malice in fact’ (mizlus animus) – indicating that the party was actuated either by spite or ill-will towards an individual. In England whether there was malice in the defendant is a question of fact for the jury. In India it is a question of law.
Absence of reasonable and probable cause and existence of malice have to be separately .proved..From a want of reasonable and probable cause a court may infer malice, but not e contra. However, the absence of reasonable and probable cause, is not per se evidence of malice. Conversely, the most express malice will not give a cause of action if reasonable and probable cause existed.
(4) Termination of Proceedings in Favour of Plaintiff
It is also essential that the ‘prosecution terminate in favour of the plaintiff; If the plaintiff has been convicted by the court he cannot bring an action for malicious prosecution even though he can prove his innocence and also that the accusation was malicious and unfounded. The proceedings terminate in favour of the plaintiff if he has been acquitted. On technical, grounds, conviction has been quashed, or the prosecution has been discontinued or the accused is discharged. Even if the plaintiff is convicted by the trial court but the conviction is set aside in appeal, the plaintiff can sue for malicious prosecution.
When the plaintiff is acquitted of the offence for which he is prosecuted but is convicted” of a lesser offence, he may still sue for malicious prosecution of the graver offence of which he is acquitted. No action can be brought when prosecution or the proceedings are still pending. In an action for malicious prosecution, the cause of action arises, not on the date of institution of the proceeding complained of, but on the date when the proceeding terminates in favour of the plaintiff.
It has also to be proved that the plaintiff suffered damage as a consequence of the prosecution complained of. Though the prosecution ends in acquittal, the plaintiff may have suffered damage to his person (deprived of his liberty and mental stress), property or reputation by it for which he can claim compensation. Malicious prosecution is one of the torts in which aggravated damages are permissible.
Distinction between False Imprisonment and Malicious Prosecution
(1) False imprisonment is wrongfully restraining the personal liberty of the plaintiff; malicious prosecution is wrongfully setting the criminal law in motion.
(2) In false imprisonment the personal liberty of the plaintiff may have been wrongfully restrained by a private individual or setting a ministerial officer in motion. While in malicious prosecution it is the judicial officer who is set in motion.
Where the inspector, did not interpose any discretion of his own between the charge made by A and arrest of B and the arrest followed merely by signing of the charge-sheet by–A-, A is tort was that of ‘false -imprisonment,
(3) Imprisonment is prima facie a tort, malicious prosecution is not. In an action for false imprisonment it is the” defendant who has to justify the imprisonment, whereas in an action for malicious prosecution the plaintiff “has to affirmatively prove the absence of reasonable and probable cause. The defendant is thus in a more advantageous position in a suit for malicious prosecution as compared to a suit for false imprisonment.
(4) Malice is an essential ingredient in an action for malicious prosecution but not in that of false imprisonment. It is no defence to an action for false imprisonment that the detention be the defendant was without malice but due to a bona fide mistake.
PAHUJA LAW ACADEMY
- Malicious prosecution is a tort intending to protect
(a) Against abuse of legal proceedings.
(b) right of the police to prosecute the criminal.
(c) The accused against police excesses.
(d) The police against civil proceedings against it.
- Which of the following statements is incorrect:
- Malicious prosecution consists of instituting unsuccessful criminal, bankruptcy, or liquidation proceedings
- Malicious prosecution consists of instituting unsuccessful legal proceedings, civil or criminal.
- Action for malicious prosecution will not succeed if no damage results thereby.
- The criminal prosecution should be without any reasonable or probable cause.
- Mark the correct statements:
- To prevent false accusation against innocent persons, an action for malicious prosecution is- permitted.
- One, who files an action for malicious prosecution, must prove that he was innocent.
- One, who files an action for malicious prosecution, must prove that the defendant acted maliciously in prosecuting him.
- One, who files an action for malicious prosecution, must prove that the defendant had his own vested interests in prosecuting him.
- In a claim for malicious prosecution, ’the plaintiff can claim damages to his person, property or reputation
(a) I, III and V
(b) I, III, IV and V
(c) I, II and V
(d) I, II, III and V.
- Which of the following requirements form an essential element of the tort of malicious prosecution?
- Prosecution of the plaintiff by the defendant
- Termination of the case in favour of the defendant
- Termination of the case in favour of the plaintiff.
- Presence of reasonable and probable cause.
- Absence of reasonable and probable cause.
- Damage suffered by the plaintiff.
Select the correct answer using the codes given below
- 1, 3, 5, 6
- 1, 2, 4, 6
- 1, 3, 4, 6
- 1, 2, 5, 6
- In a suit for malicious prosecution which one of the following is not an essential element?
- The plaintiff was prosecuted by the defendant.
- The prosecution ended in favour of the plaintiff after exhausting all the steps of judicial process.
- The prosecution was malicious.
- The prosecution resulted in damages to the plaintiff.
- Mark the incorrect statement:
(a) Prosecution should be made by the defendant.
(b) A prosecutor is a person who is actively instrumental in putting the law in force for prosecuting another
(c) An act of giving information (viz. to the police) on the strength of which a prosecution is commenced is akin to instigating a prosecution.
(d) In order that a private person can be termed as ‘prosecutor’ he must’ve done something more than merely lodging the complaint with the police.
- “In any country, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against individual. But giving information to the authorities which naturally leads to prosecution is just the same and if that is done and trouble caused an action will lie.” The above observation was made in ‘
(a) Pandit Gaya Pershad Tewari v Sardar Bhagat Singh
(b) Balbhaddarv Badri Shah.
(c) Periyar Goundan v Kuppa Goundan.
(d) Nagendra Nath Ray v Basanta Das.
- ‘X’ “a servant of ‘Y’ lodged a criminal report against ‘Z’ that the was present at the site where ‘A’ was brutally assaulted and that ‘Z’ also instigated the assault. ‘X’ did so at the instance of ‘Y’. ‘Z.’ is prosecuted and ultimately; acquitted. In a suit for malicious prosecution by ‘Z’ against ‘Y’ ‘
(a) Y would not be liable because he did not prosecute
(b) Y would not be liable because the report was lodged by4X and not by
(c) Y would be liable because in law, it would be said that Y initiated the proceedings.
(d) Y would be liable because it was his motive to harass
- For the success of an action for malicious prosecution, it is necessary that
(a) The criminal prosecution was filed without a reasonable and probable cause, and maliciously.
(b) The criminal prosecution was launched maliciously.
(c) The criminal prosecution was launched with bad motive.
(d) The criminal prosecution was launched non-seriously. ‘
- Mark the incorrect statement:
(a) Absence of reasonable and probable cause and existence of malice have to be separately proved.
(b) From a want of reasonable and probable causes, a court may infer malice, but not be contra.
(c) The absence of reasonable and probable cause is per se evidence of malice.
(d) The most express malice will not give a cause of action if reasonable and probable cause existed.
PAHUJA LAW ACADEMY
Q1. What is Reputation?
Q2. Does Defamation makes any harm to Reputation?
Q3.Whether law of torts provides for balancing of interest i.e Reputation v/s Freedom of speech?
- Reputation is a property
- Defamatory Statement
- Statement which tends to injury the reputation of plaintiff.
- Imputation which expose one to disgrace or humiliation
- Such statement may be
- By some conduct
- Important points—Defamation
- It is a right in rem- a right good against all the world
- It is an injury to the reputation of a person
- A man’s reputation is his property, more valuable than other property
- It is both criminal offence as well as civil wrong.
- S-400 of IPC—Defamation is the wrong done by a person to another reputation by words, signs or visible representation.
- Types:- Libel and Slander
Case: Eastwood v/s Homes
“ All lawyers are thieves”
No liable till not pointing to a particular lawyer.
Defamation is communication of a statement that makes a claim. Expressly stated or impliedly to be accurate, that may give an individual, business, product, group, government, religion or nation a negative or inferior image.
It can be also any disapproving statement made by one person about another which is communicated or published, whether true or false depends on legal state.
In common law, it is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed
What is Blasphemy?
Blasphemy is the act of insulting or showing contempt or lack of reverence for a religious duty or the irreverence towards religious or holy persons or things.
- Sedition is conduct or speech inciting people to rebel against the authority of a state or monarch.
- Sedition may include any commission though not aimed at direct and open violence against the law
- Sedition words in writing are seditious libel
What are the types of Defamation?
- Slander:- Action or Crime
The statement must be published
Publication means making the defamatory matter known to some person to some person other than the person defamed.
Communication to the plaintiff himself is not enough because it is injury to reputation.
Defense of reputation
- Justification of truth (Gadkari defamation case)
- Fair Comment
- Absolute and
- Qualified privilege
- Sometimes the statement may premature be innocent but because of some latent/secondary meaning it may be considered to be defamatory.
- In natural and ordinary meaning it is not defamatory.
- Plaintiff must prove, if he wants to bring an action.(Evidence)
Statement must refer to the plaintiff to get success the plaintiff has to prove.
Case: Newshead v/s London express newspaper
Publication of an article that plaintiff had been convicted of bigamy- this was true action was brought by another person same was held liable.
Occasion of Absolute Privilege
- Parliamentary Proceeding-A-105(2)
- Judicial Proceeding
- Military and Naval Proceeding
- State Proceeding
- Qualified Privilege
Communication is privilege than statement made without malice is protected.
Making fair comment on matter of public good is a defense (Damnum sine injuria) and it should not be based on malice.
Essential of this defence
- It must be a comment- expression of opinion.
- Comment must be fair
- Must be of public good
PAHUJA LAW ACADEMY
LAW OF TORTS
- Defamation is divided into libel and slander under
(a) English law only
(b) Indian law only
(c) both under English law and Indian law
(d) none of the above.
- Slander is the publication of a defamatory statement in a
(a) transient form
(b) permanent form
(c) either transient or permanent form
(d) both transient & permanent form.
- Libel is a publication of a defamatory statement in a
(a) transient form
(b) permanent form
(c) both in transient & permanent form
(d) either transient or permanent form.
- Which of the following is not actionable as a tort of defamation
(a) hasty expression spoken in anger or vulgar abuses
(b) words which injure the feelings or cause annoyance but not reflecting on the character
(c) both (a) & (b)
(d) neither (a) nor (b).
- When the ‘innuendo’ is proved
(a) the words which are not defamatory in ordinary sense may become defamatory
(b) the words which are defamatory in ordinary sense “may become non-defamatory s
(c) the words which are not defamatory in ordinary sense shall remain non defamatory
(d) the words which are defamatory in ordinary sense shall remain defamatory.
- For defamation
(a) intention to defame is not necessary
(b) intention to defame is necessary
(c) statement made believing is to be innocent makes a difference
(d) either (a) or (c).
- For defamation, a tort
(a) should be in respect of a living person only
(b) can be in respect of a deceased person
(c) both (a) & (b)
(d) either (a) or (b).
- Action for defamation can be brought by
(a) an individual
(b) a partnership firm
(c) a company
(d) both (a) & (c).
- Which is correct
(a) sending a defamatory letter to a person in a language believed to be known to that person is no defamation
(b) wrongfully reading of any such letter by a third person is no defamation
(c) both (a) & (b)
(d) neither (a) nor (b).
- In an action for defamation under civil law
(a) truth of a defamatory matter is no defence
(b) truth of a defamatory matter is a complete defence
(c) truth of a defamatory matter is a partial defence
(d) neither (a) nor (b).
- Making fair comment on matters of public interest is
(a) a defence to an action for defamation
(b) no defence to an action for defamation
(c) a partial defence to an action for defamation
(d) none of the above.
- No action for defamation lies in cases of
(a) absolute privileges
(b) qualified privileges
(c) both (a) & (b)
(d) neither (a) nor (b).
- Which of the following is correct
(a) the defence of absolute privilege is available even though the statement is false or malicious
(b) the qualified privilege as a defence is available if the statement is made without malice
(c) the defence of qualified privilege is available if there is an occasion for making the statement
(d) all the above.
- A man’s reputation is his property, and if possible, more valuable, than other property. It was so observed in
(a) Manson v. Tunsands Ltd.
(b) Dixon v. Holden
(c) Youssoupoff v. M.G.M. Pictures Ltd.
(d) Austic v. Dowling.