Torts lectures

Torts lectures

PAHUJA LAW ACADEMY

LAW OF TORTS

MAINS QUESTION

 

  1. Define Tort?

 

  1. What is the distinction between Law of Torts?

 

  1. Distinguish between Tort and Branch of Contract?

 

  1. Distinguish between Tort and Crime and between Tort and Quasi Contract?

 

  1. Discuss the maxim ubi jus ibi remedium?

 

PAHUJA LAW ACADEMY

LAW OF TORTS

Nature and Definition of Law of Torts

 

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Rights and Duties

There is a four fold connection b/w Rights and Duties :-

(1) My right implies your duty

(2) My right implies my duty to admit a similar right of others

(3) I should exercise my right to promote social good eg., freedom of speech.

(4) State guarantees my rights, so it is my duty to support the state.

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Law of Torts still uncodified in England, and India.

In India an attempt was made by Sir Fredrick Pollock to codify the principles of law of Torts. A bill was prepared named. “The Indian civil wrongs Bill” but could not succeed.

 

Reasons for slow development of Torts

 Uncertainty of law

 Lack of Political consciousness

 Illiteracy

 Poverty

 Expensive and Dilatory Judicial System

 

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Meaning of Tort – ‘Tortum’ (Latin term) which means cooked, unlawful, twisted.

• S-2(m) of ILA –

 Civil wrong

 Not a BOC or BOT

 

• Salmond –

 Civil wrong

 Unliquidated damages

 Different from BOC, BOT, Equitable obligations

 

• Winfield

 Duty primarily fixed by law

 Duty towards persons generally

 Unliquidated damages

 

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PAHUJA LAW ACADEMY

LAW OF TORTS

PRELIMINARY QUESTION

 

  1. The word ‘Tort’ has been derived from the Latin ‘sword

 

(a) Tortum

(b) Tortus

(c) Torts.

(d) None of these.

 

  1. 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.

 

  1. 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

 

(a) Winfield.

(b) Salmond.

(c) Pollock.

(d) Clerk and Lindsell.

 

  1. The main supporter of the theory that “it is a law of Tort” and “not law of Torts” is

 

(a) Winfield.

(b) Salmond.

(c) Fleming.

(d) Heuston.

 

  1. The propounder of “Pigeon-hole” theory (‘law of torts? and not ‘law of tort’) is

 

(a) Salmond.

(b) Clerk and Lindsell.

(c) Austin.

(d) Winfield.

 

  1. 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).

 

  1. 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.

 

  1. “Wrongs are divisible into two sorts or species, ‘private wrongs’ and ‘public wrongs’. The above distinction was made by

 

(a) Bentham.

(b) Blackstone,

(c) Salmond.

(d) Pollock.

 

  1. 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.

 

  1. 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

CONSTITUENTS OF TORTS AND DEFENCES

MAINS QUESTIONS

 

  1. Enumerate the rights in the law of Torts, the exercise of which, even if they cause damage, are not actionable (damnum sine injuria). Illustrate your answer.
  1. (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?

 

  1. (a) 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.

 

(b) A Trace the development of law on the above subject in the light of above statement.

 

  1. 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?

 

  1. 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

CONSTITUENTS OF TORTS AND DEFENCES

     

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General Defences: Avoidance of Liability in Tort

General defences, taken against action for

(1) Volenti non fit injuria (Defence of Consent).

(2) Plaintiff, the Wrongdoer.

(3) Inevitable Accident.

(4) Act of God.

(5) Private Defence.

(6) Mistake.

(7) Necessity.

(8) Statutory Authority.

(9) Judicial/Quasi-Judicial Act; Executive Acts.

(10) Acts done Under Parental Authority.

 

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Certain conditions must be fulfilled–

1. Consent must be voluntarily given

– Act for which consent is given must not be illegal.

– Knowledge is not consent. (scienti non Fit Injuria)

 

Exceptions to maxim

(1) Rescue cases (Haynes Vs. Harwood)

Conditions for its application

– Plaintiff should act reasonably and not emotionally.

 

(2) Unfair contract terms:

(3) Negligence

(4) Consent to unlawful act

(5) Breach of a statutory duty

II. Inevitable accident

III. Mistake

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Following conditions must be satisfied –

(1) Necessity must exist, which compels a person to act.

(2) To act immediately

(3) To make choice b/w int. of indi. or int. of society.

(4) Act, must be in good faith, honestly and reasonable.

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2 conditions –

(1) Must be working of natural forces

(2) Occurrence is extraordinary and not one which could be anticipated.

 

Extra Cover Defences

1. Judicial Acts.

2. Quasi Judicial Acts

3. Principles of Natural Justice

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PAHUJA LAW ACADEMY

CONSTITUENTS OF TORTS AND DEFENCES

PRELIMINARY QUESTIONS

 

  1. Which one of the following is not a valid defence in tort?

(a) Volenti non fit injuria

(b) Vis Major

(c) Scienti non fit injuria

(d) Consent

 

  1. The term ‘Scienter’ is related to which one of the following sign-boards?

(a) “Trespassers will be prosecuted”

(b) “Beware of dogs”

(c) “No Parking”

(d) “No admission without permission”

 

  1. 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.

(a) The driver is responsible for the accident as he did not take care and caution.

(b) The owner is responsible as he let the driver to drive a defective vehicle.

(c) The strangers are responsible as they took the lift willingly (volenti non fit injuria).

(d) Both the driver and owner are responsible.

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  1. 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

(a) Ashby v White

(b) R. v Clarence

(c) R. v Williams

(d) R. v Catherine

 

  1. 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?

 

(a)Volenti non fit injuria is a complete defence

(b)He has no intention to kill and has performed the operation in good faith for the benefit of the person

(c)He has earlier done similar operations with success

(d)As he is not a medical practitioner and is unskilled, the plea of consent and good faith will not be available.

 

  1. 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.

 

(a) Public good

(b) Nuisance due to other’s acts

(c) Reasonable act in conducting his business

(d) Statutory authority.

 

  1. The maxim ‘Salus popull suprema lex’ means

 

(a) No man is above the law

(b) The welfare of the people is the supreme law.

(c) The defence of statutory authority is the supreme law

(d) None of the above

 

  1. Which one of the following is not an exception to the rule of volenti non fit injuria?

 

(a) A surgeon amputates a limb of a patient to save his life.

(b) Injury is caused while play-fighting with naked swords at a religious function

(c) Injury is caused to a player in a football match.

(d) Injury is caused while doing lawful acts under a contract.

 

  1. The scope of application of the doctrine of volenti non fit injuria has been curtailed

 

(a) In rescue cases

(b) When the person has taken the risk by his own free will

(c) By the Unfair Contract Terms Act, 1977 (England)

(d) Both (a) and (c)

 

  1. ‘Act of God’ is also known by the name

 

(a) Vis major

(b) Damnum fatale

(c) Vis major of Damnum Fatale

(d) Force Majeure

PAHUJA LAW ACADEMY

Joint Tort Feasor

MAINS QUESTION

 

  1. Differentiate between Independent and Joint Tort feasors explain it with case law.

 

  1. What are the Liability of Joint tort feasor.

 

  1. Why this rule was abolished as one joint tort feasor could be insolvent. What is the liability for this?

 

  1. If the joint tort feasor is not guilty at all but law has paid whole of the loss in this case the guilty joint tort feasor will be pushed to fully Identify the innocent tort feasor then who is liable for this negligence whether it will be compensate or not.

 

  1. What is the Liability of Innocent Tort feasor. If there were no disclosing identification of wrong does with this fault?

 

PAHUJA LAW ACADEMY

LAW OF TORTS

Joint Tort Feasor

 

All persons who aid or counsel or direct or join in doing a wrongful act are called Joint Tortfeasor. Essentials :-

(1) 2 or more

(2) Commit a tort

(3) Acting in furtherance of common design

     

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Liability of Joint Tort feasors

(1) Joint tort feasor are jointly & severally liable.

An action can be brought against one or more against all tort feasors. Earlier, if an action was brought against one or more, the remaining could not be dragged as there is only one cause of Action. This Rule has been abolished.

Now it is no Bar. Judgment can be applied in cases of all joint tort feasor.

To avoid hardship to plaintiff, this rule was abolished as one joint tort feasor could be insolvent.

 

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Liability of Innocent Tort feasor

If, through no fault of his own, a person gets mixed up in tortious acts of the other so as to facilitate their wrong doing, no personal liability will arise.

But, he will be under a duty to assist the plaintiff. By giving full information & disclosing the identify of wrong doers.

 

Rights of Tortfeasor inter se contribution and indemnity.

At common law, No action for contribution was maintainable (Merry weather vs. Nixan)The Rule has been Abogated.

The joint tort feasor can ask for contribution. The amount of contribution must be just and equitable.

If the joint tort feasor is not guilty at all, but has paid whole of the loss, in this case the guilty joint tort feasor will be pushed to fully indemnify the innocent joint tort feasor. Eg., Master can claim full compensation from his servant for his negligent acts.

Merry weather case not applicable in India. Allahabad court says this rule is devoid of equity of burden and benefit (Dhari Dhar vs. Chandrashekhar)

 

PAHUJA LAW ACADEMY

Joint Tort Feasor

PRELIMINARY QUESTION

 

  1. What is Joint Tort Feasors?

(a) Where two or more persons commit a joint tort, or commit a tort co-list in the pursuance of a common design, they are said to be joint tort feasors.

(b) Where two person commit Independent-actions but the action cause the same damage the two person are said to be joint Tort feasors.

(c) Where two or more Independent Tort persons commit because of different damages to the same client, they are said to be joint tort persons.

(d) Where two or more persons suffer harm due to the tortious act of another, they are said to be joint tort feasors.

 

  1. Two or more persons who inflict the same damage upon the client, but through Independent means are known as?

(a) Several Concurrent Tort feasors.

(b) Joint tort feasors.

(c) Separate joint Tort feasors.

(d) Independent tort feasors.

 

  1. What is the usual of the signing of a Joint tort feasor release?

(a) Release generally refers to a document by which a legal right is discharged.

(b) a person who commits a tort (civil wrong), either intentionally or through negligence

(c) Two or more persons whose negligence in a single accident or even causes damages

(d) none of above

 

  1. What is Negligence?

(a) Act Jointly a Produce a single damage.

(b) A failure to exercise appropriate and ethical rule of case expected to be exercised to be exercised amongst it specified circumstances.

(c) Only b

(d) a and b both

 

  1. When should a plaintiff seek or avoid a joint tort feasor release?

(a) The Joint Tort feasor release to be avoidable at all costs the walking malpractices claim, If It will, is presented by following common situation.

(b) Release generally refers to a document by which a legal right is discharged.

(c) Act Jointly and Produce a single damage.

(d) also bar a suit with special defence

 

  1. If a joint tort settlement is reached, must the setting defendant’s name still appear or the verdict slip?

(a) under the comparative negligence statute the Jury is required to assign a specific percentage of fault against each defer dart.

(b) A judge can probably order that SD’s unseal at least be present for the trial, but the court probably cannot dictate

(c) Plaintiff still be guided by whether SD’s policy limits offer

(d) Wherever the amount offered less than the projected ultimate share.

 

  1. May the jury be informal that a tort release has been signed?

(a) Yes

(b) No

(c) may be

(d) No by virtue

 

  1. Which is the special defences in contribution suits?

(a) The overwhelming majority of jurisdictions has held that no right to contribution can exist without common liability the plaintiff

(b) By statute or Judicial decisions, to allow contribution among joint tort feasor

(c) Man whose injury resulted from the acts of two equally culpable offenders could by chance.

(d) All of the above

 

  1. Which of these are liability of Joint tort feasor

(a) Jointly and severally liable

(b) Judgment can be applied in cases of all joint tort fersor

(c) This Act Independent and produce a single damage

(d) both a and b

 

PAHUJA LAW ACADEMY

DEFAMATION

MAINS QUESTIONS

 

  1. Whether law of torts provides for balancing of interest i.e. reputation versus freedom of speech?

 

  1. Any imputation, which may tend to lower a person in the estimation of right thinking members of the society generally or to expose him to hatred, contempt or ridicule is defamatory of him. Discuss the law of damages for defamation. [DJS 2000]

 

  1. What defences are available to the defendant in civil action for libel? [DJS 1971]

 

  1. “A statement made in performance of duty is privileged”. Explain such statement referring to tort of demotion. [UPJS 2015]

 

  1. Discuss the ingredients of the tort of defamation. What defences are available in an action for defamation? Discuss. [UPJS 2012]

 

DEFAMATION

 

 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

 Oral

 Writing

 Painted

 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 vs. Homes

“All lawyers are thieves”

No liable till not pointing to a particular lawyer.

 

Reputation is not what he thinks of himself but what others think of him. If the behaviour of others in society changes due to the defamatory remarks made by defendant, then it is Defamation. Effects can be that the person might lose his present job, may not get another job, forego a delightful marriage, may lose friends, business, customers.

 

Defamation means to defame a person

– Attacks or injures the reputation

– Makes a false statement to his discredit

– Injury to his own reputation including his wife, son, dependents if the injury suffered has a direct bearing on the reputation.

– Make the society shun or avoid that person.

eg., X calls B’s wife a prostitute.

B calls Y’s daughter a prostitute

 

Defamation is Both a civil & criminal wrong.

The law of defamation balances the interests (Reputation vs. Freedom of speech) Act 19(1) (a) 19(2). Defamation is a restriction.

Dixon vs. Holden – Reputation is more valuable than any other property. If reputation is lost, everything is lost.

Statement made should be without reasonable excuse – a case of defamation will be maintainable. Difference between libel and slander.

 

Essentials of Defamation:-

(1) Statement was false and defamatory

To determine this it is to be seen that whether the words, tend to lower the plaintiff in the estimation of Right thinking members of the society generally. A reasonable man is one Whose values are shared, is fair-minded. To see the ordinary and natural meaning of the words which may be assigned by ordinary men at the first reading and not on later analysis.

If the statement exposes a person to hatred, contempt, ridicule, injures his profession or trade, the statement will be defamatory.

 

Statement can be false and defamatory-person liable for defamation

Statements can be false but not defamatory- no defamation but malice will be seen on the part of defendant.

Statements can be defamatory but not false- No defamation.

In this case malice is also assumed. Malicious statement means that the statement or publication without just cause or excuse. Motive is irrelevant but malice is essential to calculate damages. If no malice, no defamation.

 

South Indian Co. vs. Ramakrishna

Railway guard – checking tickets – “I suspect you are travelling with a wrong or false ticket”. The statement was false as the ticket was in progress. The court held, statement was bonafide and no defamation.

 

D. P Chaudhary vs. Kumari Manjulata

News published with unfair comments and false imputations that 17-year old ran away with a joy. News not based on correct facts, Girl’s reputation had suffered. This was actionable perse.

Hence the case was Maintainable.

No action for mere insult. But if it causes ridicule and humiliation, it is actionable.

 

Sim vs. Stretch

Innuendo – Statement may prime facie be innocent (natural and ordinary meaning is not defamatory) but latent or secondary meaning may be defamatory. Burden of proof on plaintiff to prove that the latent meaning is defamatory

e.g., X published that Mrs. Y had given birth to a child. It is not defamatory. But defamatory when Mrs. Y pleads that she was married 2 months ago.

According to English law, Knowledge or intention to defame is not necessary.

 

strong>Cassidy vs. Daily Minor

In India, the view is different with respect to whether intention to defame is necessary or not.

T.V Rama Subba Iyer vs. Alimad Mohideen case.

Intention not there therefore no defamation. No liability where statements published innocently.

D.P Chaudhary vs. KM Manjulata: Intention is there or not, if the statement is false and defamatory, the person was held liable for defamation.

 

(2) It must be published

What is publication?

It is communication of the words to at least one person other than the person defamed. Eg. through letter, pamphlet, cardboard, books, caricature, TV, photograph, tape recorded cassette, telegram, postcard etc.

 

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(3) It must refer to the plaintiff

Defamation by the name of plaintiff is not necessary. Sufficient if initial letters or first name or last letters of the name has been mentioned. Right thinking members of the society…….

 

Hulton & Co. vs. Jones: The def. newspaper published a fictional article in their newspaper by which imputations were cast on the morals of a fictitious person – Artemus. A real person of the same name brought on action. The defendants were held liable.

 

Innocent publisher or author can avoid his liability –

1. Published innocently

2. As soon as it gets to know that it is defamatory to plaintiff, offer of amends a (suitable correction and an apology).

 

In England and India the position is same.

 

Defamation of class of persons: Defamation of individual and not class of persons. When the words refer to a group of individuals or a class of person, no member of that group can sue unless he can prove that the statement referred to him.

Lawyers are thieves, all doctors are cheats, but if statement is like, doctors in Roopnagar are fraud, then case will be maintainable.

Partnership firm can’t bring a suit as it is not a legal person. Individual Partners may sue.

 

Q. What are the types of Defamation?

1. Slander:- Action or Crime

2. Libel

 

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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.

 

Defences

1. Justification by truth: It is an Absolute defence in civil law. In criminal law, it is a defence only when it is made for public good or public benefit. The defence is available even though the publication was made maliciously (without just cause or excuse.)

Section – 499 exception 1 IPC

(i) Statement is true (ii) for public good.

Truth is a complete defence. If the statement is false, (and defendant is unable to prove its truth) the defendant cant take the plea that he honestly and reasonable believed it to be true.

 

Radheysham Tiwari vs. Eknath

Newspaper failed to prove that the statements were true therefore held liable.

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2. Fair comment : Fair and bonafide comment

The main essentials are:-

i. It must be a comment: Comment means an opinion based on certain facts. Facts true, then comment valid. Fact not true, comment not a good defence e.g., A does not take bath, wears dirty clothes and does not clean teeth. He is therefore a ‘Dirty Man’.

ii. Comment must be fair and honest: It will not be relevant if on the basis of facts abovementioned , it is said that A is a Dishonest man, it will be no defence.

iii. Public interest: Matter commented on is of public interest. It is a defence to editors authors, critics. It is a critical appreciation of existing facts and not intervention of new facts.

iv. Comment must not be malicious: the comment must not have been made by ill will and must not injure moral character.

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3. Privilege statements– Absolute privilege – no action will lie despite being false, malicious, defamatory

Qualified privilege: the following conditions need to be satisfied:

1. Statement without malice

2. An occasion for making the statement

3. These are made in discharge of duty or for protection of interest.

This can be availed in fiduciary relationships. Eg. Master and servant, husband and wife, guardian and ward, partners, close friends etc.

 

Instances of absolute privilege:

Parliamentary proceedings: Within 4 walls whether statement true or untrue and not outside the parliament. Art. 105 (2) and Act 194 (2).

Judicial proceedings: no action against judges, counsels, witnesses, parties for words in the course of any proceeding even if malicious. But Remarks by witness totally irrelevant to the case is not privileged.

Military / Naval proceedings : Statements made before M/N court of inquiry.

State Communications proceedings : communication relating to state matters, public matters.

 

REMEDIES

1. DAMAGES

2. INJUNCTION

 

PAHUJA LAW ACADEMY

DEFAMATION

PRELIMINARY QUESTIONS

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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).

 

  1. Action for defamation can be brought by

(a) an individual

(b) a partnership firm

(c) a company

(d) both (a) & (c).

 

  1. 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).

 

  1. 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.

 

  1. No action for defamation lies in cases of

(a) absolute privileges

(b) qualified privileges

(c) both (a) & (b)

(d) neither (a) nor (b).

 

  1. 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.

 

PAHUJA LAW ACADEMY

MALICIOUS PROSECUTION

MAINS QUESTIONS

 

    Define Malicious Prosecution. What are it’s essential ingredients? What must plaintiff prove for getting success in case of a suit for malicious prosecution? Can a suit for malicious prosecution be filed against corporation also if yes, in which circumstances?

 

    What is malicious prosecution and false imprisonment? What are the remedies against malicious prosecution and what are the exceptions to it?

 

    “In an action for malicious prosecution, the plaintiff has to prove, first, that he was innocent, and second, that there was want to reasonable and probable cause.” What is malicious prosecution? Explain the essentials to be proved in a suit for damages for malicious prosecution.

 

    Explain the essentials of malicious prosecution. What are the grounds on which plaintiff can claim damages?

 

    Defendant Lodged a FIR to Police regarding theft at his shop, naming the plaintiff (servant) being suspect. After investigation, it was clear that plaintiff has nothing to do with theft. Plaintiff can prosecuted for which allegation. Explain with the case law.

 

PAHUJA LAW ACADEMY

MALICIOUS PROSECUTION

 

 It consists of unsuccessful criminal proceedings against another person.

 A person files a criminal case Maliciously and without reasonable and probable cause.

 This provides a Redress for those who are prosecuted without just cause and with malice.

 

It is primarily concerned with criminal proceedings.

 

The plaintiff can claim for the following damages-

1. Damage to property

2. Damage to reputation

3. Damage to person

 

Essential elements

The plaintiff must prove to bring an action for MP –

1. That he was prosecuted by the defendant.

2. That the proceedings terminated in favour of the plaintiff.

3. That the prosecution was instituted against him without any reasonable or probable cause.

4. Prosecution was instituted with a malicious intention.

5. Has suffered damage to his reputation or to the safety of person or to the security of the property.

 

1. Prosecution by the defendant

The Plaintiff was prosecuted by the defendant who was the prosecutor (A prosecutor is a person who is actively instrumental in putting the law in motion for prosecuting another).

 

 An action which does not extend to arrest / issue of process or seizure of property is not a good cause for MP.

 Prosecution means criminal proceeding against a person in a court of law.

 A prosecution is there when there is a criminal charge made before a Judicial officer or a tribunal.

 

Negendra Nath Ray vs. Basanta Das Bairagya

Girija Prasad vs. Uma Shankar Pathak

Held that Girija Prasad is the prosecutor– (1) not only he made the report which was to his knowledge false (2) But also gave false evidence during investigation and prosecution filed by state, chargesheet by IO but Girija Prasad was actually instrumental in setting the criminal law in motion.

Bombay HC and allahbad HC, said, Prosecution commences when a complaint is made with a view to induce the Magistrate to entertain it. It is not necessary that the charge should have been acted upon by the Magistrate.

Calcutta, Madras and Orissa HC said that a suit for MP cannot be instituted when processes have not been issued to the plaintiff. The complaint had been filed and the magistrate ordered for inquiry to the police but if processes not issued , the case will not be maintainable. Mere filing of a complaint which may fail is not per se a prosecution which may find such an action.

Allahabad HC also said that it is not necessary that the criminal proceeding should have been heard out to the end. It is sufficient if they have initiated though has fallen apart because of technical reasons.

 

2. Termination of the proceedings in favour of the plaintiff.

The plaintiff does not need judicial determination of his innocence, what is enough is the absence of judicial decision of his guilt.

There need not be acquittal on merits, it is enough that the prosecution has been discontinued, accused has been discharged, complaint dismissed for default.

This happens because no evidence given or fails on technical grounds. Even if the plaintiff is convicted by the trial count but the conviction is set aside in appeal, the plaintiff can sue for MP.

 

When the plaintiff is acquitted of the offence for which he is prosecuted but is convicted for a less or offence, he may still sue for MP of the grave offence of which he is acquitted.

 

No action can be bought when the prosecution or proceedings are still pending. In the case of MP, COA arises not on the date of inst. Of proceedings complained of but on the date when the proceedings terminate in favour of the plaintiff.

 

3. Absence of reasonable and probable cause

This is the most difficult to ascertain as to what is reasonable and probable cause. The defendant will be deemed to have made reasonable and probable cause when –

(1) he took care to be informed of the facts.

(2) he honestly believed his allegation to be true.

(3)the facts were such as to constitute a prima facie case.

(4) his belief should be based on due enquiry.

The defendant must believe in the probability of guilt but not necessarily the probability of conviction.

The def. must believe in the story on which he acts and should act like a reasonable man.

 

The essence of Reasonable and probable cause should not be presumed from the dismissal of a prosecution or acquittal of the accused.

 

Abrath vs. North Eastern Railway

One M recovered compensation from the def. co. for personal injuries in a railway collision. Subsequently, the railway co. got the information that M’s injury had been falsely created by Dr. Abrath.

The directors of Railway co. made enquiries and obtained legal advice which suggested that Dr. Abrath should be prosecuted. Dr. Abrath was prosecuted but acquitted. He brought an action for MP. The court found that the Railway co. honestly believed in their allegation and not liable. Lawyer’s advice is a good defense only when the lawyer is acquainted with all the relevant facts within the knowledge of defendant.

 

4. Malice / Malicious Intention

Plaintiff will have to prove that the def. had malicious intention but if def. acted honestly, will not be liable. Malice to be established is not malice in law but Malice in fact – indicating that the party was actuated by ill will. It is a question of law in India. It is a question of fact in England. Absence of probable and reasonable cause and Malice have to be separately proved. The most express malice will not give a cause of action if reasonable and probable cause existed. However absence of R & PC is not a per se evidence of Malice.

 

 Abdul Majid vs. Harbansh Chaubay AIR 1974

 Bhogilal vs. Sarojbahen AIR 1979

 

5. Damage

To prove that the plaintiff suffered damage as a consequence of the prosecution though the prosecution ends in acquittal, the plaintiff may have suffered damage to his person (deprived of liability and mental stress) property and reputation. Aggravated damages are permissible.

Sona Ravi Dutta vs. Debabrata Dutta

     

PAHUJA LAW ACADEMY

MALICIOUS PROSECUTION

PRELIMINARY QUESTIONS

 

  1. 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.

 

  1. Which of the following statements is incorrect:

(a) Malicious prosecution consists of instituting unsuccessful criminal, bankruptcy, or liquidation proceedings

(b) Malicious prosecution consists of instituting unsuccessful legal proceedings, civil or criminal.

(c)  Action for malicious prosecution will not succeed if no damage results thereby.

(d) The criminal prosecution should be without any reasonable or probable cause.

 

  1. Mark the correct statements:

I. To prevent false accusation against innocent persons, an action for malicious prosecution is- permitted.

II. One, who files an action for malicious prosecution, must prove that he was innocent.

III. One, who files an action for malicious prosecution, must prove that the defendant acted maliciously in prosecuting him.

IV. One, who files an action for malicious prosecution, must prove that the defendant had his own vested interests in prosecuting him.

V. In a claim for malicious prosecution, ’the plaintiff can claim damages to his person, property or reputation

Codes

(a) I, III and V

(b) I, III, IV and V

(c) I, II and V

(d) I, II, III and V.

 

  1. Which of the following requirements form an essential element of the tort of malicious prosecution?
  1. Prosecution of the plaintiff by the defendant
  2. Termination of the case in favour of the defendant
  3. Termination of the case in favour of the plaintiff.
  4. Presence of reasonable and probable cause.
  5. Absence of reasonable and probable cause.
  6. Damage suffered by the plaintiff.

Select the correct answer using the codes given below

Codes:

(a) 1, 3, 5, 6

(b) 1, 2, 4, 6

(c) 1, 3, 4, 6

(d) 1, 2, 5, 6

 

  1. In a suit for malicious prosecution which one of the following is not an essential element?

(a) The plaintiff was prosecuted by the defendant.

(b) The prosecution ended in favour of the plaintiff after exhausting all the steps of judicial process.

(c) The prosecution was malicious.

(d) The prosecution resulted in damages to the plaintiff.

 

  1. 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.

 

  1. “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.

 

  1. ‘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

 

  1. 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. ‘

 

  1. 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

NUISANCE

MAINS QUESTIONS

 

  1. Discussion the exception to the rule contained in maxim ‘Actio personalis moritur cum persona’.

 

  1. Distinguish between the Public nuisance and Private nuisance.

 

  1. How far lack of care is a relevant factor in determining liability under an action of nuisance?

 

  1. Distinguish between the Public nuisance and Private nuisance.

 

  1. “Public nuisance is a crime whereas private nuisance is a civil wrong.” Explain.

 

PAHUJA LAW ACADEMY

NUISANCE

 

Nuisance

Society is not formed by one man. Neighbours are required and mutual cooperation among neighbors is needed. Common rights should be enjoyed with harmony and without encroachment on other rights.

 

When you live in a society you have to bear certain inconveniences to reap the benefits of its cooperation and coexistence.

 

Law as to Nuisance is law as to relationship b/w neighbours. Nuisance means annoyance. It is derived from the French word ‘nuire’ to do hurt, or to annoy or that which is offensive. Acts interfering with the comfort, health, and safety are the examples of it.

 

Nuisance is an act, omission, injury, damage, annoyance or offence to sense of sight, smell, hearing, or which may be dangerous or injurious to health or property.

 

Winfield defined nuisance as unlawful interference with a persons use or enjoyment of land or of some right over or in connection with it.

 

Difference between trespass and nuisance.

The similarity between the two is that in order to claim damages the plaintiff need to prove possession of property.

 

PICTURE3

 

Nuisance is of 2 types- private nuisance and public nuisance

There are separate torts as they involve different type of rights.

Similarity is that they cause inconvenience or annoyance by the conduct.

No Mens rea is required for Public Nuisance. malice is important for private nuisance.

Nuisance is not a branch of Negligence.

Nuisance may be caused by negligence, but it cant be taken as a defence that all reasonable care was taken to prevent it.

 

Public Nuisance & Indian Law

S – 268 of IPC , procedure laid down in section 133-143 of CrPC

To have a private right of action U/S – 268 following need to be proved –

(1) Suffered particular injury beyond what is suffered by the rest of public.

(2) Such injury is direct and particular and not consequential.

(3) Injury is of substantial character.

 

Ratlam Municipality vs. Vardichand

Residents of a locality tormented by foulness caused by open drains and public excretion and by discharge of obnoxious water into a public street by a govt. alcohol plant. The magistrate was moved U/S – 133 to direct the Municipality to do its duty. The court ordered to take immediate steps to stop nuisance, it directed the SG to stop pollution.

 

Art. 47, 38, 188 IPC – Principles of public welfare.

S – 123 Municipalities Act – These point to the duty of the authorities to remove public Nuisance.

 

L. R Kolwal vs. State of Rajasthan

Cleaning of public streets and sanitation are the primary duties of Municipality which it is bound to perform. The paucity of funds or staff is no ground for its non performance.

 

Dr. Ram Raj singh vs. Babulal– Brick grinding machine case

 

Soltau vs. De Held – Church Bell case

De Held was the priest of Roman catholic chapel (a room used for Christian worship). The chapel’s bell rung at all hours of day and night. The plaintiff Soltau resided next door to the chapel. All the people were annoyed. This was the case of Public Nuisance but for plaintiff it was Private Nuisance, therefore injunction was granted by the court.

 

Section – 91 CPC relates with Public Nuisance.

Where no special damage to the plaintiff, no civil suit can be filed.

 

Winter bottom vs. Lord Derby, A public footway was blocked by the defendant. The plaintiff was annoyed because sometimes he had to go by another route and sometimes he incurred expenditure in removing the obstruction. The court held it was a case of Public Nuisance and not private as he did not suffer anything beyond the general public.

Private individual can bring a civil action in respect of PN, if he proves that he has suffered a particular injury to himself beyond that was suffered by the rest of the public.

 

Nuisance on Highways

(1) Queues :

Reasonability test is followed. Facts and circumstances of cases should be keenly observed. It must be unreasonable.

Barber vs. Penley

Queues at the def. theatre access to the plaintiff’s premises, a boarding house. It was held a nuisance and the management of the theatre was held responsible as it was unreasonable.

 

But in Dwyer vs. Mansfield

Def. a shopkeeper had license to sell fruits and vegetables. At the time of scarcity of potatoes he sold a certain quantity of potatoes. Queues of customer at the def. shop extended on the highway in front of the neighbouring shops. In an action by these shopkeepers the judge found that neither nuisance nor damage to the plaintiff has been proved. It was held also that even if a nuisance had been established, Since the defendant is distributing food essential for the public, he has been carrying on his business in a normal and proper way, without being unreasonable or unnecessary, the queues were due to the shortage of potatoes.

 

Leanse vs. Egerton-read

 

(2) Learning the vehicle in darkness – which is likely to cause an accident being an obstruction to those who are using highway on their lawful occasion. (vehicle unlighted, unguarded) and accident results, it is actionable. Even leaving a vehicle at a place for an unreasonable long time during the day also amounts to Nuisance. Any unreasonable act on highways amounts to Nuisance. Excavation, leaving dangerous or slippery substances are examples of nuisance. but doing an act on own premises, even if troubles others not a nuisance.

 

Who can sue in Public Nuisance?

S- 91 CPC says-

Advocate General or 2 or more persons having obtained the consent in writing of court may institute a suit though no special damage caused for a declaration and injunction or other relief.

Only if personal damage to Public – then case maintainable under Torts.

Private Nuisance

Consists of continuous, unlawful and indirect interference with the use or enjoyment of land, proof of damage is necessary. This injures a private person exclusively. It is caused by a person on his own land but its consequences extend to the land of his neighbours.

 

(1) Continuous Interference- Nuisance is generally a continuous wrong. It must not be momentary but it can be temporary. A constant noise, smell, vibration is nuisance and ordinarily an isolated act of escape of noise can’t be nuisance. e.g., isolated act of hitting cricket ball on road. Plaintiff on highway was injured by a ball hit from def. ground. Stone vs. Bolton.

 

Dollman vs. Hillman

The def. was held liable for the isolated act when the plaintiff slipped on a piece of fat lying outside the defendant’s butchers shop, in nuisance and negligence.

 

(2) Unreasonable interference

Interference may cause –

(i) Damage to the plaintiff property.

(ii) Personal discomfort to the plaintiff in the enjoyment of property.

 

Every interference is not nuisance

Facts and circumstances will decide e.g., having a house on roadside must put up with such inconvenience which is incidental to traffic. e.g., running a flour mill in a residential area will amount to nuisance. Radhey Shyam vs. Gur Prasad

 

In Saldeigh vs. O’Callage ham held that the test of reasonableness is acc. To the ordinary usages of mankind living in society. An act which is otherwise reasonable does not become unreasonable and actionable due to the sensitiveness of the plaintiff. If certain kind of traffic is no nuisance for a healthy man, it will not entitle a sick man to bring an action, even though the damage is substantial.

 

Usha Ben vs. Bhagya Laxmi Chitra Mandir, It was contended by the plaintiff that exhibition of the film, Jai Santoshi Maa hurt their religious feelings as Goddesses are defined as jealous. It was held that hurt of feelings is not an actionable wrong and plaintiff were free not to see the movie.

 

{3}Interference with the use or enjoyement of land-e.g., allowing branches of a tree overhang on the land of other person, escape of water, gas, smoke or fumes, vibrations.

In Noble vs. Harrison: branch was overhanging on a highway, therefore no nuisance

 

{4} Damage: Actual damage is required

 

Defences:

1. Prescription

2. Statutory authority

3. Trivalty

4. Lawful use of land

5. Reasonable use of property

6. Act of god

7. Inevitable accident

8. Act of a stranger

9. Consent

10. Contributory negligence

 

Ineffectual defences:

1. Nuisance due to act of others

2. Public good

3. Reasonable care

4. Plaintiff coming to nuisance

 

Remedies:

1. Abatement

2. Damages

3. Injunction

 

PICTURE1

 

Hence, u/s – 23 of ICA , consideration & object are lawful unless opposed to public policy. English law of Maintenance & Champerty have no application in India.

A fair agreement to assist a person in the enforcement of his legal rights (viz. recovery of property) may be held valid even if the person providing the assistance is to be reimbursed out of the proceeds of the action.

However, the share shall not be unconscionable. e.g., half of the decreed amount. An agreement by a client to pay his lawyer acc. to the result of the case is against public policy.

 

When the court finds such agreement as –

(1) Unconscionable or extortionate.

(2) Not made with bonafide object but with improper object e.g., oppressing others by abetting and encouraging unrighteous suits, so as to be contrary to public.

No effect will be given to such agreements.

When such agreements are in furtherance of right & justice and are necessary to resist oppression then they are permissible.

Agreement of Maintenance & Champerty are void as these are opposed to public policy. PP means policy of the law at that time. An Act which is injurious to the society is against PP.

 

The concept of freedom of contract (laissez faire) has been considered to be of great importance and therefore if and courts are given the freedom to interfere with contracts on their own notions of PP, this may be unjust.

 

The concept of freedom of contract (laissez faire) has been considered to be of great importance and therefore if and courts are given the freedom to interfere with contracts on their own notions of PP, this may be unjust.

 

J. Burrough said “PP is an unruly horse, and when once you get astride it you never know where it will carry you”.

 

In India the following agreements are against public policy-

(1) Trading with an enemy.

(2) Trafficking in public offices – inducing a PO to act corruptly.

(3) Interference with administration of justice – to delay the execution of decree.

(4) Maintenance & Champerty.

(5) Marriage Brokerage contracts.

     

PAHUJA LAW ACADEMY

NUISANCE

PRELIMINARY QUESTIONS

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. “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.

 

  1. 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.

 

  1. For an action of nuisance, the defendant can put up the following defences

I. The place is suitable for the purpose.

II. It is for the benefit of the residents of the locality.

III. It is done under statutory authority.

IV. The plaintiff has consented to the act.

Of the above statements

(a) I, II and III are correct.

(b) II, III and IV are correct.

(c) I, III and IV are correct

(d) III and IV -are correct

     

      PAHUJA LAW ACADEMY

      TRESPASS

      MAINS QUESTIONS

       

      1. Define Trespass?

       

      1. What is assault, battery and false imprisonment? How they are different from each other?

       

      1. Difference between assault and battery, Personal injury and a crime.

       

      1. Is assault and battery a misdemeanor or Felony?

       

      1. What are the remedies for the Trespass? Define it with the defences to Trespass with certain case laws?

       

      PAHUJA LAW ACADEMY

      TRESPASS

       

      Trespass is a Transgression or offence against a man’s person or his property. Types of Trespass :-

      (1) Trespass viet armis or T to person

      (2) Trespass quare clausum fergit or T to Land.

      (3) Trespass de bonis asportatis or T to Goods or Chattels

       

      2 Rules of trespass –

      1. The defendant, to plead and prove justification and not for the plaintiff to prove that the def. conduct was unreasonable.

      2. Damage is not an essential element and need not be proved by the plaintiff.

       

      PICTURE2

       

      False means wrongful Imprisonment means detention. Detention is wider then Imprisonment. Confined in 4 walls.

      (a) False Imprisonment

      (1) Imposition of a total restraint

      (2) For some period, however short

      (3) Upon the liberty of another

      (4) Without sufficient lawful justification. FI is both a crime & a tort.

       

      The detention of a person may be either (a) actual (physical) laying hands (b) constructive i.e. by mere show of authority.

       

      PICTURE3

       

      Merring vs. Grahame White Aviation Co.

      An employee suspected of having stolen the company’s property was called to the co. office and was asked to stay in the waiting room one or 2 employees remained outside the room. It was held that the plaintiff detention by the co. officers before the police had arrived was wrongful and amounted to FI.

       

      (2) Period of Restraint – No fixed period even a very short period. In this case damages will be nominal.

      White vs. WP Brown

      The Plaintiff an elderly lady who had been detained in a changing cubicle for 15 minutes by store detectives after she was thought to have stolen a birthday card. Her held bag had been taken away and searched. Later she was taken to the PS. She received 520 pounds for FI and 775 pounds for trespass to her bag.

       

      (3) Unlawful detention

      For FI, imprisonment should be without any lawful justification e.g., making false complaint to the police by def. leading to plaintiff need not prove malice or hyligance on part of def. It is sufficient if he persons unlawful detention arrest the plaintiff it without any justification, will make the def. liable for FI.

       

      Direct arrest/Direct detention/Active in promoting or causing such arrest/detention Active in promoting or causing such arrest detention – Person liable for FI.

       

       Police to give notification of arrest otherwise FI.

       When a prisoner’s jail sentence is over his detention thereafter will result in false imprisonment. Judicial officer not acting judicially if orders for arrest it will be FI.

      Private Indi. To handover the person to Police asap.

       

      When detention is justified

      1. Not allowing a person to go until he pays reasonable changes is no FI.

      2. When there is volenti Non fit injuria no FI.

      Law permits arrest of a person when offence is committed. Arrest by Magistrate, private persons, PO.

      John Lewis & Co. vs. Times

      The plaintiff and her daughter went to a shop, where the daughter committed theft. Both of them mere detained in the office and mere told to want for managing director’s Derisa where they renamed for an hour. They decided to hand over them to the police. On trial, daughter was found guilty and mother not. The def. were shed for FI but held not liable as they did not take unreasonable time to make a decision.

       

      Where the court orders release, still detained, amounts to FI.

      Remedies – (1) Action for damages

      General damages usually can be exemplary when plaintiff complaint is oppressive, arbitrary and unconstitutional.

      In trespass, BOP is on defendant, In FI, the plaintiff is required to prove that he was imprisoned by def., is not required to prove special damages.

      Then the def. to prove lawful justification.

      Plaintiff need not prove any wrongful intention, malice negligence etc. on def. part.

       

      Self help – A person is authorized to use reasonable force in order to have an escape instead of waiting for a legal action. S- 100 IPC.

      Habeas Corpus – Art. 32/226 Assault, Battery, FI, may given are all intentional acts.

      Battery– Intentional and direct appl. of force to another person without any lawful justification use of force however trinuial is enough physical hurt need not be there.

      Hurst vs. Rictures theatres ltd. – Battery requires actural contract. e.g., holding somebody, spitting in the fere, throwing over a chair, throwing water over a person, taking a person by the collar, causing another to be medically examined against his/her will.

       

      Anything which result in physical injury or personal discomfort will amount to battery. An unwanted battery. Battery is actionable per se.

       Narrow passage, to pass gentle touch, no battery

       Friendly touch not battery.

      Harm which is unintentional or caused by pure accident is not actionable.

      Assault: (1) act of defendant

      (2) causes reasonable apprehension

      (3) of the infliction of battery on him by the def.

       

      Assault is an unlawful or a treat to do an act coupled with ability and intention to do the same.

      Actual contract is not necessary- If the first or the cave is shown from such a distance that the threat can’t be exeuted, there is no assault.

      Mere / Verbal threat is no asaault. It must create reasonable immediate apprehension in plaintiff mind that force will be applied

      Assault- There must be reasonable apprehension of immediate injury or violence to the plaintiff.

      Conditional/Verbal threat is no assault pointing a pistol unloaded pistol – assault

      If plaintiff knrus pistol is unloaded then no assault.

      Stephens vs. Myers

       

      PICTURE4

       

      Defences

      1. Self defence – Defence of H & W, children, parents master etc. is permissible. This is known as son Assault Demeshe, which means that the act complained of was the effect of plaintiff own attack.

      2. Expulsion of Trespaasser – quiet entry- quiet expulsion, forceful entry- forceful expulsion.

      3. Defence of one’s property – Unreasonable force should not be employed.

      4. Exercise of parental or Quasi Parental Authority.

      Force should not be unreasonable. He can’t apply force on *

      5. Leave and Licence – e.g., boxing, football, gave etc.

      6. Retaking of goods – Reasonable force.

       

      Mayhew – Maim, Death is not caused. Mayhem is the most serious injuries among all which do not cause death.

       

      PICTURE5

       

      Trespass to Land

      It is an unjustifiable interference with the possession of land.

      It is a wrong against possession rather than ownership.

      Trespass by –

      1. Whether by actually dispossessing him of the land

      2. Intruding upon it.

       

       In trespass, neither force, nor unlawful intention, nor actual damage, nor the breathing of an enclosune is necessary.

       Invasion of private property without justification.

      Trespass to body – intentional

      Trepass to land – non intentional so even if entry is by mistake –liable.

      Trespass by

      (1) Entering upon the land

      (2) By remaining there

      (3) By doing an act affecting the sole ownership

      Trespass in civil / Trespass U/IPS S-441

       

      Trespass on highway

      Where a man’s land spreads over highway, the soil over such land is presumed to be owned by him. An action for trespass only when there is unlawful interference or unreasonable use of land.

       

      Trespass in the Airspace

      Cujust est, solum ejus east usque ad coelum – whose is the soil he is also that which is above it.

       This does not mean any ownership over the infinite space.

      Trespass by aircraft, statutes in England and India.

      but if material damage is caused to property, the owner will be responsible.

       

      Trespass ab initio

      Enters lawfully but later on abuses the authority. It will be presumed that he entered the premises with wrongful purpose in mind.

      Trespasser ab initio when his wrongful act amounts to Misfeasance (doing a wrongful act) and not non feasance (omission to does omitting)

      e.g., 6 carpenters entered an inn and ordered for food. They left without paying. The count held that they were not TAI as it was non feasance and not misfeasance.

       

      Entry with Licence

      To enter certain premises with the consent in possession amounts to lience. Section – 52 of IEA. Once licence is revoked, the person must quit the place within reasonable time. If he does not, he becomes a trespasser.

      Can the licensor revoke the licences are of 2 types –

      (1) A bare lecence – this can be revoked. Permitting a pess on to cut a tree on one’s land is licence.

      (2) A licence coupled with grant – this can’t be revoked to carry away the tree cut down is a grant.

       

      Defences to Trespass

      1. Justifiable entry

      2. Private defence

      3. Inevitable accident

      4. Necessity

      5. Parental Authority

      Every continuance of Trespass is a fresh trespass. So COA arises daily.

       

      Remedies for Trespass

      1. Re – entry

      2. Action for ejactment – S-5 within 6 months of dispossession

      3. Action for mesne profits

      Plaintiff can ask for profits which he could make had he not been possession. Mesne profits – refers to the profits taken by the def. during the period of his recovery.

      Distress Damage feasant : To detain a cattle or chattless until compensation has been paid for the damage done.

       

      Trespass to Goods

      Means direct not consequential means direct and wrongful interference, with the plaintiff possession of food.

    • By seizune
    • Removal
    • By direct act causing damage
    • e.g., removing a tyre from cyle or car destroying or injuring goods beating or killing the animals infecting them with a disease chasing them to run away killing them by poisoned meat.

      * Co-owner can fill a case of trespass if the co-owner exceeds hi limits.

      Defences– Defence of property defence of person wrongful attachments of property is trespass to save livestock from cattles, to S are cattles from dogs it is permissible provided it is reasonable.

      Actual or constructive or immediate possession of the goods with plaintiff is necessary to file a case for trespass.

      Kirk vs. Gregory – On A’s death, his sister in law removed some jeweler from the room where his dead body was lying, to another room U/a reasonable but mistaken belief that the same has necessary got stolen. As sister in law liable for trespass.

      Possession of goods with the plaintiff is compulsory.

      Determine: It is the adverse withholding, wrongully detaining the goods of another.

       

      The injury complained of is not the taking, not the misuse and appropriation of goods, but only the detention. e.g., taken a cycle on hire, failed to return.

      Bailee refuses to deliver the goods, but here bailee can defend by taking plea of lian.

      Original possession – lawful but subsequently goods are wrongfully detained.

       

      If goods are damaged and then returned – not detinue. It will be conversion.

      S- 7, 8 of SRA – Recovery of specific movable property.

       

      ‘Trover’ Conversion : Wilfully and without any justification, dealing with goods in such a mense to deprive the person who has immediate possession.

       

      Putting to one’s use, community then, destroying, damaging.

      No defence – honestly believed that he had a right to deal had no knowledge that goods beloyed to plaintiff.

       

      • Here the title is questioned.

      Wrongful sale of goods – conversion finder of goods if sells can be a defence.

       

      • Bailee pledge, auctioneer finder of goods can file and suit of conversion.

      Diff. b/w trespass & Conversion

      Diff. b/w Detinue and Conversion.

       

      PAHUJA LAW ACADEMY

      TRESPASS

      PRELIMINARY QUESTIONS

       

      1. Transfer of a chattel under a contract, the liability shall be regulated

      (a) by the terms of the contract

      (b) by tort for negligence

      (c) by tort for negligence as well as the terms of the contract

      (d) None of the above.

       

      1. Liability of the transferor of chattel towards the ultimate transferee

      (a) arises in case of fraud

      (b) arises in case of negligence

      (c) does not arise at all

      (d) both (a) & (b).

       

      1. The Scienter rule applies in case of liability for animals which are

      (a) ferae naturae

      (b) mansuetae naturare

      (c) both (a) & (b)

      (d) neither (a) nor (b).

       

      1. The liability of the owner of the cattle for cattle trespass

      (a) is strict

      (b) depends upon scienter

      (c) depends upon negligence

      (d) all the above.

       

      1. Cattle for the purposes of cattle trespass

       

      (a) includes bulls & cows but not dogs & cats

      (b) includes bulls & cows but not dogs & cats

      (c) apart from bulls & cows includes dogs but not cats

      (d) apart from bulls & cows includes cats but not dogs.

       

      1. An action for cattle trespass can be brought by

      (a) the occupier of the land only

      (b) the family members of the occupier

      (c) the guests & strangers on the land

      (d) all the above.

       

      1. An action under scienter and negligence can be brought by

      (a) the occupier of the land

      (b) the family members of the occupier of the land

      (c) guests & strangers

      (d) all the above.

       

      1. Direct interference in the possession of land without lawful justification is called

      (a) nuisance

      (b) trespass

      (c) negligence

      (d) all the above.

       

      1. Action of trespass can be brought by a person

      (a) in possession who is also the owner

      (b) in possession even if he is not the owner

      (c) not in possession

      (d) both (a) & (b).

       

      1. Trespass to goods is

      (a) actionable per se

      (b) actionable only when damage is caused

      (c) not actionable at all

      (d) all the above.

      PAHUJA LAW ACADEMY

      NEGLIGENCE

      MAINS QUESTION

       

      1. 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.

       

      1. Define Medical Negligence?

         

      PAHUJA LAW ACADEMY

      PRELIMINARY QUESTIONS

      1. 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.

       

      1. 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.

       

      1. 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.

       

      1. The maxim ‘res-ipsa loquitur’ is a

       

      (a) rule of law

      (b) rule of procedure

      (c) rule of evidence

      (d) rule of negligence.

       

      1. 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).

       

      1. 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.

       

      1. 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.

       

      1. 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.

       

      1. 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.

       

      1. 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

      NO FAULT LIABILITY

      MAINS QUESTION

       

      1. Differentiate between strict and absolute liability?

       

      1. Absolute liability overrule strict liability in M.C.Mehta v. UOI explain?

       

      1. In which case law the wrongful Act of third party is explained?

       

      1. Describe the passing of Public liability Insurance, its purposes with the help of decided case Bhopal gas leak disaster and Shri Ram Gas leak tragedy case?

         

      PAHUJA LAW ACADEMY

      NO FAULT LIABILITY

       

      STRICT LIABILITY AND ABSOLUTE LIABILITY

      General rule:-

      Tortious liability is fixed – when there is negligence and intention.

       

      Exception to the General Rule – Absolute liability and Strict liability

      (No Fault liability)

      Even if the person is not negligent nor has intention to do a wrong, he will be held responsible.

      The principle of strict liability was laid down in Rylands vs. Fletcher. The principle of Absolute liability was laid down in M.C. Mehta vs. Union of India.

       

      The principle is based On the maxim

      “Sic utere tuo et alienum non laedas” (Use your own property as not to injure the property of your neighbor).

      The Maxim is not clear about natural / non natural use of land. Strict liability operates only in non natural use of land.

      The facts of the case are as follows:

      Def employed independent contractors – to construct a reservoir – contractors found mines workings on land – failed to seal – filled the reservoir – water flooded through mine shafts into plaintiff’s mines.

       

      The defendant cannot be held liable for –

      Nuisance – not continuous a single act only

      Trespass – indirect interference

      Negligence – was not recognized at that time as an independent tort.

      The defendant was held liable for strict liability as water stored in such quantity was held to be a non natural use of land.

      The person will be liable for things which escape due to the default of his servant or independent contractor except a stranger.

       

      Essential Ingredients :-

      (1) Non natural use of land

      (2) Dangerous thing / goods on land

      (3) Escape

       

      (1) Dangerous thing / goods – which creates mischief if it escapes. eg. water, gas, electricity, vibrations. The defendant has brought, introduced, kept or collected something on his property which was not naturally there. Eg., animate objects (living animals), inanimate objects (non living like rocks, chairs, books.)

      The thing is not naturally on land but brought by artificial devices. Eg., large body of water, gas, fire, fireworks, heaps of soil, oil, dangerous animals, beasts, trees dangerous to cattles.

      Bala Krishnan case AIR 1968

      Madappa case AIR 1964

       

      (2) Non natural use of land:- It means non ordinary use of land or it means creation of unreasonable, abnormal and excess risk in using land. Special use of a thing that brings danger to others. Eg., increased danger to public – 20-25 gas cylinders in a residential area, eg., growing of poisonous trees.

      Noble vs. Harrison, TC Balakrishnan menon vs. TC Subramaniam

      Whether use is natural or non natural depends on practices prevailing in society. Eg., non natural to keep a car with petrol in its tank in a garage.

      Natural uses : Water installation in a house domestic fire, growing trees, gas pipes, electric wiring etc., irrigation purpose.

       

      (3) Escape: Thing must escape to the area outside the occupation and control of the defendant. Eg., poisonous trees reach the plaintiff lands when consumed by cattles, the defendant will be liable.

       

      Rule of Absolute liability promotes principle of social utility and public policy.

       

      The following are the defences available-

      (1) Statutory Authority: When damage is the consequence of an act done for public purpose in the discharge of a public duty under the express authority of a statute. The person will be responsible if done negligently.

      Green vs. Chelsea waterworks co.

       

      (2) Natural use of land– tree on my land falls on your car. I won’t be liable. (Noble vs. Harrison) Common benefit : Injury is caused to the plaintiff from a thing which is maintained in the premises for the common benefit of both.

      Carstairs vs. Taylor: Water from upper storey to lower storey.

       

      (3) Act of God : Nicholas vs. Marshland

       

      (4) Wrongful Act of 3rd Party: 3rd party on whom the defendant had no control.

      Box vs. Jubb– A malicious third person blocked up the waste pipe of a lavatory basin on A’s premises. The water overflowed and flooded.

       

      (5) Plaintiff own fault: when the thing escapes due to plaintiff fault. Ponting vs. Noakes:

      A poisonous tree on A’s land. B’s horse intruded into A’s land and died after eating the leaves of the tree. Held, A was not liable. B’s own fault.

       

      (6) Consent of the plaintiff: Volenti Non Fit Injuria eg., in high rise apartments, water is stored in tanks for common use of tenants. The defendant will not be liable for any leakage if not negligent.

      Applicability of Ryland’s Rule in India with some modifications. MVA, liability of owner or insurer of the vehicle without proof of negligence, (No Fault Liability).

      Indian Railways Act – Railways liable

      Carriers Act – Carriers liable

       

      The Plaintiff fault is not the only cause of escape but also his failure to discover or avoid the danger, this would result in reduction of damages.

      Commercialisation is increasing which is why SC preferred Rule of Absolute liability over Rule of strict Liablity which is suitable to the social and economic conditions in India. It was evolved in the case M.C Mehta vs. UOI.

       

      The rule has no exceptions as no intention to immune those who had established hazardous industries in and around thickly populated areas.

      As according to Rylands vs. Fletcher Rule, if there is escape of the substance causing damage due to the act of a stanger, due to sabotage, there is no liablility.

       

      In M.C. Mehta case, on 4th December, 1985 a major leakage of Oleum gas took place from one of the units of Shriram food & fertilizers Ind. and this affected a large no. of persons including workman and public at large.

       

      Measure of Liabilty: For the industries which are engaged in hazardous or inherently dangerously industry, if by accident persons die or get injured the industry will be responsible even if highest standards of safety, reasonable care and no negligence was on their part.

       

      The reasons given by the court for not having any exception to the Rule of absolute liability-

      (1) The enterprise carrying such hazardous and inherently dangerous activity for pvt. Profit has a social obligation to compensate

      (2) The enterprise alone has the resources to discover and guard against such hazards & danger.

      The court also said that the measure of compensation should be correlated to the magnitude and capacity of the enterprise so that it can have deterrent effect.

       

      PICTURE02

       

      RECENT CASE LAWS

      Indian council for environmental Legal Action vs. UOI.

       

      M.P Electricity Board vs. Shail Kumari and others

      Bhopal Gas Leak Disaster and Shriram Gas Leak Tragedy provided an impetus for the passing of public liability insurance. The Act provides for mandatory insurance for the purpose of providing an immediate relief to the persons affected by accidents occurring while handling any hazardous substance. The Act covers every industry whether public or private, which handles hazardous substances. The act incorporates the no- fault liability standard.

         

      PAHUJA LAW ACADEMY

      PRELIMINARY QUESTION

      1. 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.

       

      1. The rule of ‘absolute liability’ implies

       

      (a) Strict liability.

      (b) Stricter than strict liability.

      (c) State liability.

      (d) None of the above.

       

      1. 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.

       

      1. 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.

       

      1. 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.

       

      1. 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.

       

      1. 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.

       

      1. 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.

      (d) Mistake.

       

      1. Consider the following statements:

      I. A circus company keeps wild animals and tames them. One of them escapes and causes injury to a spectator. Company is not liable.

      II. 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

      (a) Both I and II are true.

      (b) Both I and II are ‘false.

      (c)  I is true but II is false.

      (d)  I is false but II is true.

       

      1. 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

       

      (a) The escape of water was owing to act of God.

      (b) The escape of water was due to plaintiff’s own default.

      (c) The box in which water from the roof collected was maintained for the common benefit of ‘X’ and ‘Y’.

      (d) None of these.

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