TRESPASS TO PERSON 11/26/2014

ASSAULT & BATTERY

Damage is not an essential element.

Common elements:
1. Intention to act:
 Letang v. Cooper: Intention is an essential element of trespass
to person.
 Fowler v. Lanning: No CoA for trespass to person if intent is
not established.

Elements of Assault:
2. Attempt or threat to do corporeal harm in the form of
words/actions/gestures (not actual contact):
 Allen v. Hannaford: Assault depends on the apprehensions
created in the mind of the P and not the intentions of D.
 Every threat is not an assault – not mere words, gestures must
accompany them to constitute a threat.
 Imminent threat: actual not potential threat.
 Extra-sensitive P: only D knew of his sensitivity and used it to
threaten him.
3. Apparent present ability to do the act.

Elements of Battery:
1. Intention to cause physical contact and not damage.
 Transferred intent: Individual who suffers contact need not be
the person whom the D intended to harm.
2. Direct/indirect application of force (by the body or an object).
3. Harmful/offensive physical contact (not damage)
 Cole v. Turner:
o Lightest angry touch constitutes battery.
o Forceful, reckless touch in close quarters is battery.
o Gentle touch in close quarters with no intention is not
battery.
 Vosburg v. Putney:
o D is liable for all injuries resulting directly from wrongful
act, whether or not they were foreseen.

Additional Info:
 Battery includes assault.
 Separate offense for assault – rationale: To protect people’s mental
peace – imagine a world where you are disallowed to beat people but
allowed to threaten them.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1. Intention to cause calculated harm: Wilkinson v. Downton

 Not that D intended the harm, but rather he did an act whose
natural consequence (on reasonable person) was the harm.
 Likelihood of harm arising from behaviour + deliberate engaging
in such behaviour = D is taken to have meant to cause the harm.
2. Extreme outrageousness of D’s conduct.
3. Consequential injury – emotional.
 FALSE IMPRISONMENT

1. Total restraint of liberty – restriction of P’s freedom of movement

(not harmful or offensive)
 Actual: enclosed somewhere
 Constructive: made to move in one direction
2. Unlawful detention:
 Murray v. Ministry of Defense:
o Period of detention is immaterial – she was falsely
imprisoned for half an hour.
o Not being informed of arrest amounts to unlawful detention.
 Other examples of unlawful detention:
o Detention period extends lawfully allowed period.
o Physical conditions of detention are inhumane.
3. Knowledge of being falsely imprisoned at the time it happened is
irrelevant (Murray v. Ministry of Defense)

 Arrest by public officer: (S. 41(i) CrPC) No liability when a person is

detained on reasonable suspicion, informed of the grounds for arrest,
and there is compliance with CrPC norms.
 Arrest by private person: (S. 43 CrPC) No liability when P has
committed a non-bailable cognizable offence and he is promptly
handed over to authorities.
TRESPASS TO PROPERTY 11/26/2014

TRESPASS TO IMMOVABLE PROPERTY (LAND)

1. Intention – not to trespass but to be present on or interfere with the
possession of P’s land.
2. Direct interference with the possession of P’s land
 Entering upon P’s land
 Remaining there after entry has ceased or trespass ab initio
(authorized entry but committing wrongful act once there.)
 Any act affecting the sole possession by P
 Damage is not required – actionable per se (Dougherty v.
Stepp)
3. Without lawful justification: Dougherty v. Stepp “every
unauthorized, therefore unlawful entry, is trespass.”
4. Possession – P must be in possession of the land (not ownership, just
possession).

Vertical dimensions of trespass: he who owns the soil owns to the edge of
the heavens and the depth of the earth.

TRESPASS TO MOVABLE PROPERTY (CHATTELS)

Direct physical interference with goods which are in P’s possession

without any lawful justification – by seizure, removal or a direct act
causing damage to the goods.

1. Intention to handle the chattel or physically interfere with it.

 Even if D erroneously believes it to be his own.
 Wrongful motive or negligence need not be proven (Poggi v.
Scott)
2. Direct physical interference: seizure, removal, or act causing
damage.
 Actionable per se – damage is not essential.
3. Without lawful justification
4. Possession – P must be in possession of the chattel (actual or
constructive)

Conversion:
1. D intends to claim ownership of goods for himself (Intention).
2. D treats goods as if they were his own (Direct interference) – exercises
dominion/control over it to the extent that it seriously interferes with
P’s right to control it (Poggi v. Scott).
 Sale
 Parting with goods
 Keeping
 Destruction
 Denial of right
DEFENSES TO INTENTIONAL TORTS 11/26/2014

CONSENT (VOLENTI NON FIT INJURIA)

 If P has consented to conduct by D that would otherwise be tortious or

run a risk of harm to P, D’s conduct is not wrongful or without
justification.
 Rationale: Gain to D is loss to P, but when P accepts D’s acts he
implicitly expects to receive some benefit from the act.

Elements:
1. Knowledge of risk
2. Voluntary agreement to risk:
 Express or implied consent
 Scope: Consent does not apply when its scope is exceeded
(Mohr v. Williams)
 Free/voluntary: Consent should not be distorted by fraud,
duress, concealment, incompetency of P, illegal acts, etc.

Exceptions: (where consent can’t be used as a defense)

1. Unlawful acts: Hudson v. Craft
2. Breach of statutory duty
3. Rescue cases
4. D was under a duty to prevent P’s act: McGuire v. Almy – Consent
does not always follow from intentionally incurring the risk. Degree of
danger, stress of circumstances, expectation that others will perform
their duties, etc. have to be considered.

SELF DEFENSE
Courvoisier v. Raymond:
1. Reasonable apprehension:
 Reasonable belief that the use of physical force is necessary to
prevent attack.
 No need to show actual risk of bodily harm.
 Reasonability is situation-sensitive.
2. Honest force:
 Communication between P and D of alleged threat/force, i.e. P
needs to show the threat was apparent.
 Mistake of understanding:
o Subjectively honest but unreasonable mistake: no defense.
o Objectively reasonable and honest mistake is accepted.
3. Reasonable means:
 Equivalent force used – excessive force does not excuse.
 If there are two ways to deal with the threat, the one with lesser
damage should be chosen.
 If avenue for retreat/escape existed, D may still be liable.

DEFENSE OF PROPERTY

1. Proportionate force:
 Can’t use excessive/deadly force (Bird v. Holbrook).
 Where a person peaceably captures chattel from another, the
latter has no right to retake it by violence (Kirby v. Foster).
  If D can avoid confrontation with a single demand, he must first
make that request before escalating conflict.

NECESSITY

All defenses include an element of necessity. Differences:

 In self defense / defense of property, necessity stems from P’s wrong.
 Whereas necessity cases arise from natural events or violent acts of a
third party that imposes on D the necessity to do acts that harm P.

Ploof v. Putnam: Trespass in necessity is not trespass. Necessity arose

from natural events.

Classification:
 Public necessity – absolute privilege: Risk to a large number of
people is reduced/eliminated by causing harm to P.
 Private necessity – conditional/qualified privilege: Risk to one party
is reduced/eliminated by causing harm to P.
 Vincent v. Lake Erie Transportation: Private necessity is not
an absolute privilege. Private necessity excuses D from liability
for trespass, but not for damage.

Elements:
1. Actual or apparent imminent danger to interest of D or others.
2. Reasonable steps taken to protect interest against danger.
3. D was not at fault for creating the threat.
NEGLIGENCE 11/26/2014

Elements:
1. Legal duty – obligation towards P to take reasonable care in
performing an act/omission.
2. Breach of legal duty – when D’s conduct falls below the level of care
required of a reasonable man in D’s position, thereby creating an
unreasonable risk of injury to P. (Reasonable man test)
3. Consequential damage – D’s negligent act should be the cause of P’s
injury.

1. DUTY OF CARE

Question of law, not fact.

Caparo Industries v. Dickman: Ingredients that give rise to a legal

duty of care: Proximity, foreseeability, fair/just/reasonable.

i. Proximity between parties: Donoghue v. Stevenson

 The rule is that you must take reasonable care to avoid injury to
your neighbour.
 Proximity of ‘neighbour’ need not be confined to physical space.
 Proximity of relationship between parties: Neighbour: Persons so
closely and directly affected by D’s acts that D ought to keep
them in mind while performing acts/omissions.
ii. Reasonable foreseeability of relationship
iii. Fair, just and reasonable to impose duty

2. BREACH OF DUTY – Steps to assess breach of duty

i. Foreseeability of harm to P should care not be taken
ii. Standard of care that a hypothetical reasonable man would exercise
in those circumstances:
 Fixed standard of care in light of factual considerations.
 Reasonable man – normal intelligence, aware of laws of nature.
 Vaughan v. Menlove: Standard of care is objective and not
based on the judgment of each individual.
 Brown v. Kendall: Standard of care varies with circumstances.
Fletcher v. City of Aberdeen: Obligations under standard of
care are correlative for P and D.
o Physical disability – Fletcher v. City of Aberdeen:
 Person under physical disability should use care
which a reasonable person under the same disability
would exercise.
 Authorities charged with public duties must exercise
care keeping in mind the safety of persons with
disabilities/handicaps.
o Age – Roberts v. Ring: Standard of care expected from
an infant is that of an ordinary boy of his age and maturity.
A reasonable old man with infirmities would not undertake
activities that would put others at risk due to his infirmity.
o Beginner – would take precautions consistent with his skill.
o Insanity – reasonable insane person is cautious when there
is a reasonably foreseeable episode of incapacitation.
o Emergency situation requiring rapid decision would affect
reasonable behaviour.
iii. Compare D’s conduct with standard of care.
 Vaughan v. Menlove: If D has acted in a contrary way to how a
reasonably prudent person would have under similar
circumstances, he is in breach of duty.
 United States v. Carroll Towing
o Unreasonable risk: D is liable only for the unreasonable risks
created by his conduct. If P is injured by reasonable risks,
the loss is his to bear alone.
o Risk-Benefit Formula of determining standard of care (use
when negligence arises in a commercial relationship):
  P = probability of harm
D = magnitude of damage
B = burden of precautions to reduce damage
 P x D > B = unreasonable risk
If precaution is cheaper and safer, D’s failure to use
it is regarded as standard of care not met.
 P x D < B = reasonable risk
If precaution is useless and expensive, failure to use
it is not regarded as breach of duty.

3. CONSEQUENTIAL DAMAGE

Causation:
 Causation is important to establish because we need to see if D knew
or should have known of the potential consequences of his act.
 Causation in fact: P must establish that the harm of which he
complains resulted from D’s negligent conduct.
 But-For Test: Whether P would have suffered injury but for D’s
negligence?
o Counterfactual question that asks what would have
happened if D had not been negligent.
o But-for test isn’t sufficient, it must coexist with proximate
cause.
 Substantial Factor Test: Whether D’s act/omission was a
substantial factor in bringing about P’s injury? How influential
was it to P’s injury?
 Causation in law (Novus Actus Interveniens): Question of
intervening events which may severe the chain of causation.
 Intervening act may be:
o Act of nature
o P’s own conduct
o Act of third party
 Generally, D is not liable for all the ulterior harm as he did not
create a special risk of harm from that kind of contingency.
 Intervening causes should not be foreseeable, otherwise the
chain of causation is not broken.
  Scott v. Shepherd: If injury arises from the force of the original
act, the chain of causation isn’t broken by intervening acts.

Proximity/Foreseeability of Damage:
 Determines the extent to which D can be made liable for his act – D’s
act has to be a proximate cause of P’s injury.
 Reasonable Foreseeability Test: If P’s injury was a foreseeable
result of D’s act/omission, the latter is a proximate cause for P’s injury.
 Bolton v. Stone: Danger couldn’t be foreseen, no liability.
 Overseas Tankship (UK) Ltd. v. Morts and Dock &
Engineering Co. Ltd.: If harm is foreseeable, the un-
foreseeability of neither the extent of harm nor the manner in
which it occurred can be used as a defense.
o When the accident is caused by the intrusion of some new
unforeseen factor, the way in which the damage was
caused becomes relevant.
 Egg-Shell Skull Rule: P can claim damages for the entire harm, even
if, by virtue of some special bodily sensitivity, it is greater than what
an ordinary person would have suffered.

PROOF OF NEGLIGENCE

 Direct evidence
 Circumstantial evidence – res ipsa loquitur (Byrne v. Boadle): The
mere occurrence of the accident is sufficient to imply negligence.
Events causing P’s injury must have the following requirements:
 Ordinarily occurs because of negligence by someone in D’s
position.
 Instrumentality causing the injury must be within exclusive
control of D.
 No voluntary action/contribution by P.

DUTY IN SPECIAL CASES

 Duties of Occupiers of Premises:
 Trespasser: No duty towards trespassers as entry is wrongful, unless
risk of harm is such that it is reasonable to expect help.
 Licensee: Liable for non-disclosure of known dangerous conditions.
 Invitee: Duty to warn about latent dangers and make the place safe.

Professional Negligence
 If D’s position implies skill, he must use it to exercise a greater
standard of care.
 Bolam v. Friern Hospital Management Committee (Bolam Test):
 Standard of the ordinary skilled man exercising and professing to
have that skill.
 Corpus of knowledge, professional equipment, specialized
intelligence/skills, etc. of an ordinary member of the profession.

DAMAGE

 Personal
 Property
 Psychiatric: not temporary grief, medical evidence is required
 Economic
DEFENCES

Contributory Negligence
 It would be unfair to impose liability on D when P has negligently
contributed to his own injury. However, it is also unfair to completely
relieve D of liability because he was also, in effect, negligent.
 Contributory negligence involves lack of care on the part of P which
contributes to the damage caused by the negligence of D.
 Whichever party could have avoided the consequences of the other’s
negligence is liable for the injury.
 Elements:
1. Duty of care: P should avoid behaviour that results in injury to
himself or mitigate D’s liability.
2. Breach of duty:
o Standard of care of a reasonable man in similar
circumstances.
o Breach of duty when P does not take due care of his own
safety and thus contributes to his own injury.
3. Consequential damage: causation and proximity.
 Exceptions to contributory negligence:
 Safety statute: When D’s negligence consists of a breach of a
statute designed to protect P.
 Greater degree of blame on D.
 Last clear chance: If D had last clear chance to avoid injury to P.
 Comparative negligence:
 Pure form: Apportionment of damages based on relative fault.
 Modified form: If P’s negligence > D’s negligence, D need not
pay damages.
 Vidya Devi v. M.P.R.T.C.: Although there was contributory
negligence, it was rejected as a bar to relief and apportionment of
damages was adopted instead.
Volenti non fit injuria (Consent)
 Smith v. Charles Baker & Sons: One who has assented to an act
being done towards him cannot, when he suffers from it, complain of it
as a wrong.
 Elements:
1. Knowledge of risk (reasonable man test is not sufficient)
2. Voluntary agreement to incur risk:
o Express or implied consent:
Morris v. Murray: Implied consent is consent (P got
onto the plane – implied consent).
 South Indian Industrial Ltd., Madras v. Alamelu
Ammal: Putting up a warning sign does not amount
to implied consent.
o Scope: Consent does not apply when its scope is exceeded
(Mohr v. Williams)
o Free/voluntary: Consent should not be distorted by fraud,
duress, concealment, incompetency of P, illegal acts, etc.
 Morris v. Murray: Consent must be free from
compulsions. Even though P was drunk, his consent
is considered voluntary.
 Smith v. Charles Baker & Sons: Consented to risk
of injury but not to lack of care by employers.
Continuation in service does not imply consent.
 VNFI can’t be used in rescue cases (Haynes v. Harwood).

Exclusion of Liability
 Liability can be excluded through contract between parties.
 This cannot preclude liability for death.
 Can’t have unreasonable terms.

Insanity
 Breunig v. American Family Insurance: Insane person is negligent
if he/she has prior warning/knowledge of sudden incapacitation.
DEFAMATION 11/26/2014

BACKGROUND INFO

 Definition: Statement that causes injury to the reputation of a

person.
 Objective: Protects reputation; balance between personal right to
reputation and freedom of speech.
 Forms (this distinction is not made in Indian context):
 Libel: Permanent (written) publication
 Slander: Verbal statement

ESSENTIAL ELEMENTS

1. Defamatory statement: Must cause injury to P’s reputation.

2. Referring to identifiable P: Directly or indirectly, as long as others
can reasonably infer that it’s about P.
3. Publication: Making known of a defamatory statement to a third
party.

1. DEFAMATORY STATEMENT

 Statement includes words (written or verbal), pictures, emblems,

actions, gestures, etc.
 Defamatory content:
 Injures the reputation of the plaintiff in the eyes of a third party:
o Exposes P to hatred, contempt or ridicule.
 o Injures P in his trade/profession.
o Lowers P in the estimation of the community.
o Deters third persons from associating with P.
o Causes P to be shunned or avoided.
 Depends on how a reasonable third party would interpret it:
o Not naïve or unduly suspicious.
o Reads between the lines – may make loose interpretations.
o Should not select one defamatory meaning when other
non-defamatory meanings are available.
o Petra Ecclestone v. Telegraph Media Group Ltd.
 Reasonable reader does not give a newspaper item
analytical attention to draw defamatory meanings.
 It’s not about a particular section of society, it is
about ordinary, reasonable people of society.
 Reasonable readers recognize strong, permissible
views that freedom of expression allows people to
express within its limits.
 Statement is assumed to be false until it is proven to be true.
 Without lawful justification.
 Intention/malice is not required.
 Hasty expression (anger, insult) which no third party would interpret
as tainting the character is not actionable.
 Innuendo qualifies as a defamatory statement – Indian Express
Newspapers (Bombay) Pvt. Ltd. v. Jagmohan Mundhara
 Natural/ordinary meaning is not prima facie defamatory.
 When understood with knowledge of special background facts or
with a latent/secondary meaning, it becomes defamatory –
Hough v. London Express Newspaper Ltd.
 Necessary when the imputation is made in an oblique way
(question, exclamation, conjecture, irony, etc.).
2. REFERRING TO PLAINTIFF
 Directly or indirectly.
 Immaterial whether D intended to refer to P.
 If the third party can reasonably infer that it refers to P, D is liable.
 Defamation of deceased person is a criminal offence, not a tort.
 When defamatory statement refers to a group, an individual cannot
sue unless he can prove that it specifically relates to him.

3. PUBLICATION
 Knowingly or negligently making known of defamatory statement to a
third person (someone other than P).
 Huth v. Huth: If it is not natural and probable that the third party
would hear the information, i.e. if the third party hears it wrongfully,
it’s not considered publication.
 Spouses:
 Communication to a spouse is not publication.
 Communicating about one spouse to another is publication.
 Re-publication: Re-publication of a defamatory statement made by
another amounts to defamation, too. Can be oral/written.
 It is an open question whether the re-publisher is solely liable or
whether the blame should be shared with the original publisher.
 If the re-publisher knows of the falsity of the statement and
deliberately chooses to re-publish it, he is solely responsible.

DEFENSES

1. Justification by truth:
  D must show that the imputation was true as a whole and every
material part thereof.
 Not necessary to justify every detail, provided that the gist is
true and the unjustified details have no effect on the reader.
 If there is gross exaggeration, the defense will fail.
2. Fair and bona fide comment:
 Fair: Honest and relevant criticism (be it exaggerated or
prejudiced) based on correct facts.
 Abdul Wahab Galadari v. Indian Express Newspaper: Fair
comment on a matter of public interest is no defamation if the D
acted in a bona fide manner with due care and caution.
3. Privilege: D’s relation with the facts is such that he is justified in
saying/writing something that would be defamatory for someone else.
 Absolute privilege: Not liable even if it is false, defamatory
and/or malicious.
o Parliamentary proceedings: MPs + publishers
o Judicial proceedings: judges, counsels, witnesses, parties
o State communications
 Qualified privilege: Not liable even if it is false and defamatory,
unless express malice (indirect and improper motive) is proved.
o Ways to prove: D thought allegations were false, D was
moved by hatred/dislike, showing out anger/prejudice.
o Examples of qualified privilege:
 D has a duty to communicate it to a third party that
has a corresponding interest in receiving it.
 Confidential relationships (husband-wife).
 Info about crime/misconduct.
 Communications between persons in public position.
Fair reports of judicial, parliamentary, quasi-judicial

and other similar proceedings / public meetings.
o Govind Shantaram Walaralkar v. Pandharinath
Shivaram Rege: Can’t take the defense of qualified
privilege if there was malicious intent.
 CONSTITUTIONAL DIMENSIONS TO DEFAMATION

 R. Rajagopal v. State of Tamil Nadu (Right to Privacy)

 No prior restraint or prohibition can be imposed by the state or
its officials upon the proposed publication of defamatory content.
 State or its officials cannot seek any remedy until it is published
and they can prove actual malice as public is permitted to opine
on state activities.
 No one can publish anything concerning matters that every
citizen has a right to safeguard under their right to privacy
(implicit in right to life and liberty, Art. 21) without consent.
 New York Times v. Sullivan (Freedom of Speech)
 Debate on public issues may include vehement, caustic and
unpleasantly sharp attacks on government and public officials.
 Erroneous statement is inevitable in free debate – must be
protected if freedoms of expression are to have breathing space
– unless the statement was made with actual malice.

OTHER RANDOM RULES

 Newspaper Rule (Nishi Prem v. Javed Akhtar): Press is not

compelled to disclose the source of information (to prove veracity of
defamatory statement) at an interim stage in an action for defamation.
 Exemption of Liability of Intermediary:
 An intermediary shall not be liable for third party defamatory
content on a link hosted by him if:
o His function is limited to providing access to a
communication system.
o He does not initiate transmission, select its receiver, or
modify its content.
o Due diligence is done.
 An intermediary is liable if:
o Abets, aids or induces the commission of wrongful act.
o Does not take down defamatory publication upon its
knowledge.
LIABILITY TORTS 11/26/2014

STRICT LIABILITY

Background Info:
 No fault liability – prima facie liability of D for harm regardless of fault.
 Rationale: Foreseeable risk inherent in the very nature of the activity.

Elements – Rylands v. Fletcher:

1. Abnormally dangerous object/activity brought on D’s land – factors
laid down in Danny Klein v. Pyrodyne Corp.:
i. High degree of risk to others (person, land, chattels)
ii. Likelihood of great harm
iii. Inability to eliminate risk with reasonable care
iv. Activity is not a matter of common usage
v. Inappropriateness of activity to the place
vi. Whether or not the value to community is outweighed by its
dangerous attributes
2. Object is for D’s own use.
3. Non-natural use of land: Rickards v. Lothian: some special use
(not ordinary or for the benefit of the community) bringing with it
increased danger to others.
4. Escape of the dangerous object/activity to an area outside the
occupation and control of D – Read v. J Lyons & Co. Ltd.
5. Consequential damage

Exceptions/Defenses:
1. P’s own Default
2. Act of God: Escape is caused through unforeseeable natural and
proximate cause.
3. Consent of P (express or implied): P has permitted D to accumulate
the hazardous object that escaped.
4. Act of Third Party: Danny Klein v. Pyrodyne Corp.: A third party’s
act does not relieve D from strict liability unless it was unforeseeable.
5. Statutory Authority: Exemption from strict liability is expressly
provided in the statute as long as they take reasonable care.

ABSOLUTE LIABILITY

Strict liability without exceptions – only applies to industries.

Rationale:
 The judiciary tried to make a strong effort following the Bhopal Gas
Tragedy, 1984 (Union Carbide Company v. Union of India) to enforce
greater amount of protection to the public. 
 Doctrine of absolute liability was therefore evolved in the Oleum Gas
Leak Case, 1987 to provide a strong legal tool against rogue
corporations that are negligent towards the safety of the public.
 Ensures stricter compliance to safety standards when enterprises are
engaged in inherently dangerous or hazardous industries.

Elements – M.C. Mehta v. Union of India (Oleum Gas Leak Case)

1. Enterprise/industry
2. Hazardous/inherently dangerous activity
3. Non-natural use of land
4. Accident/escape
5. Resultant damage
6. No exceptions as under strict liability: not even third party act or
unforeseeability/reasonable care.
 Enterprise is permitted to carry on a hazardous activity on the
condition that it will absorb the cost of any accident arising on
account of such activities.

VICARIOUS LIABILITY

 In certain cases, one can be made liable for acts done by another –
only if there exists a certain kind of relationship connecting the two.
 Elements:
1. Relationship between person liable and tortfeasor
2. Wrongful act
3. During the course of employment
 Respondeat superior: “Let the superior be liable” – therefore state is
liable for the wrongful acts of its employees.

Liability of State / Constitutional Torts

 Constitutional/government torts: makes government liable for the tort
committed by the government or its instrumentality (employees).
 Sovereign function:
 Statutory functions referable to the exercise of sovereign powers
delegated to servants of the state.
 Such functions cannot be carried out by private individuals.
 Examples:
o Administration of justice
o Maintenance of law and order
 o Repression of crime
 Liability when tortious acts are committed a public servant:
 State is not liable when public servant is carrying out sovereign
functions.
Kasturi Lal v. State of UP:
o Cop ran away with prisoner’s belongings kept in the
lockup.
o Sovereign function because private persons can’t access
lockup. State not liable due to sovereign immunity.
 Action for damages is maintainable only when the act is not a
sovereign function.
UoI v. Jasso & Ors.:
o Circumstances + nature of employment + tort should be
identical with circumstances + nature + tort of private
employment.
o State is liable as it is not a sovereign function.

Rudul Shah v. State of Bihar:

 P acquitted but released from jail 14 years later.
 SC could not reverse the holding given in Kasturi Lal as that was a five
judge bench and this one was a three judge bench.
 Thus, sovereign immunity was ignored and relief was given under
Right to Life.
CONSUMER PROTECTION ACT 11/26/2014

RANDOM BUT VERY IMPORTANT INFO

 Councils
 Central consumer protection council
o Government’s Minister of consumer affairs + two others
(one must be a woman)
 State cpc
o Government’s Minister of consumer affairs + two others
(one must be a woman)
 District cpc
o Collector + two others
 Redressal Agencies: In case rights are violated, these agencies hear
the cases.
 National Consumer Disputes Redressal Commission
 State Commission
 District Forum
 Jurisdiction
 There are territorial & pecuniary (monetary) considerations to
establish jurisdiction.
 How to establish territorial jurisdiction (either of the following
options can be chosen to decide jurisdiction)
o Cause of action (where the problem arose)
If partly at one place and partly at another – both
places have jurisdiction
 Wholly at one place – that place has jurisdiction
o Opposition party location (where the opposing party
resides/is registered)
 How to establish pecuniary jurisdiction: Monetary compensation
defines jurisdiction
 o Compensation is decided on the value of the goods +
damages claimed (total compensation asked for)
o Jurisdictions for each forum:
 District forum – cases worth upto 20 lacs
 State commission – cases between 20 lacs and 1
crore
 National commission – cases above 1 crore
 NOTE: Limitation period is 2 years from when the cause of action
arises. This means that any claim made after 2 years will be rejected if
the court doesn’t deem the reasons given for the delay to be valid. The
consumer cannot sleep over his rights.
 Appellant jurisdiction:
 Appeal to higher forum must be filed within 30 days of the
decision
 If no appeal is made within 30 days, decision is final.

CONSUMER

Any person who:

1. Buys goods or hires/avails of a service
2. For a consideration (paid, promised, partly paid, partly promised, any
system of deferred payment).
 Byford v. S.S. Srivastava:
o Advert to buy a car to enter contest for plane tickets. P
wins contest but doesn’t get tickets.
o P is not a consumer as he didn’t pay a consideration for the
tickets, he only paid it for the car.
 Mayor, Calcutta Municipal Corporation v. Tarapada
Chatterjee:
o Inadequate water supply.
 o Municipal Corporation supplies water as part of a statutory
duty, not in lieu of tax.
o Taxes are not consideration, so he is not a consumer.
3. Any user of these goods (with the approval of buyer) or beneficiary of
hired services.

Exception: Does not include a person who buys goods or avails of services
for resale or commercial purposes.
 Commercial purpose excludes persons who are self-employed
and obtain goods/services for exclusively for earning a livelihood.
The good/service must be used by the buyer himself.

TRADER

 A person who sells or distributes goods for sale.

 Includes manufacturer and packer.

MANUFACTURER

A person who:
1. Makes or manufactures any goods or parts of goods.
2. Assembles parts of goods made/manufactured by others.
3. Puts his own mark on goods made/manufactured by others.

Exception: When assembly/distribution/sale takes place at a branch office

maintained by the manufacturer, the branch office is not deemed to be a
manufacturer.
GOODS

 Every kind of movable property…

 …other than actionable claims and money.
 Includes stocks, shares, growing crops, grass, and things attached to
or forming part of the land which can be severed (satisfies the movable
criteria).

SERVICES

 Service of any description that is…

 …Made available to potential users, i.e. not just actual users but also
those who are capable of using it.
 Includes (but isn’t limited to) banking, insurance, transport,
processing, supply of electricity, boarding/lodging, housing,
construction, entertainment, amusement, purveying of news, etc.
 Does not include:
 Services that are free of charge.
 Service under a contract of personal service (master-servant).
To be distinguished from contract for personal service (doctor-
patient).
 Lease of immovable property.
 Public officials’ duties.

Indian Medical Association v. V.P. Shantha

 Service:
 Service rendered by a medical practitioner to a patient for a fee.
 Service rendered at a government hospital / health center /
dispensary / non-governmental hospital / nursing home:
o For a fee paid by persons availing the services.
o Charges are paid by those who can afford and service is
rendered for free to those cannot afford.
 Medical practitioner / hospital / etc. render service free of charge
but the insurance company covers the fee.
 Employer covers medical bills of employee and family.
 Not service:
 Contract of personal service can include employment of a
medical practitioner for the purpose of rendering medical service
to the employer.
 Service rendered free of charge to everybody at a government
hospital / health center / dispensary / non-governmental hospital
/ nursing home (either by medical practitioner or otherwise).
Payment of a token amount does not alter the position.

Spring Meadows Hospital v. Harjot Ahluwalia

 Minor’s father bought an injection for child as per doctor’s instructions.
It was administered to the child by a nurse without conducting any
sensitivity tests for reactions. Child suffered from cardiac arrest and
irreparable damage to the brain – even if he survived, he would be in a
vegetative state.
 Are the parents consumers? – Yes, the buyer (parent) and beneficiary
(child) both are consumers.
 Should the parents get compensation for deficiency in services suffered
by the child? – Yes, parents (who are established as consumers) also
suffered from mental agony due to deficiency in services.

COMPLAINT

Any allegation in writing made by a complainant for:

i. Unfair Trade Practice or Restrictive Trade Practice.
ii. Defective good(s)/service(s) bought or agreed to be bought.
iii. Price in excess of pre-determined price is charged.
iv. Goods/services are hazardous to life/safety when used or being offered
for sale:
 In contravention of safety standards under law.
 Trader knew the goods were unsafe by due diligence.

COMPLAINANT

i. Consumer
ii. Beneficiary of goods/services
iii. Voluntary consumer under any law
iv. Central/State government
v. Group of consumers having the same interest
vi. Legal heir/representative of deceased consumer
vii. Insurance company

DEFECT IN GOODS

 Fault, imperfection or shortcoming

 in the quality, quantity, potency, purity or standard
  which is required to be maintained by law for the time being in
force
 or under any contract, express or implied
 or as is claimed by trader
 in relation to any goods.

DEFICIENT SERVICES

 Fault, imperfection, shortcoming or inadequacy

 in quality, nature and manner of performance
 which is required to be maintained by law for the time being in
force
 or under any contract or otherwise
 in relation to any service.

RESTRICTIVE TRADE PRACTICE

 Trade practice which

 manipulates price or conditions of delivery
 to affect flow of supplies in the market
 relating to goods and services
 to impose unjustified costs or restrictions
 on consumers

Such as:
 Delay beyond the period agreed upon in supplying goods/services,
leading to rise in price.
 Requiring consumers to buy, hire or avail of goods/services as a
condition precedent to buying, hiring or availing of other
goods/services.

SPURIOUS GOODS & SERVICES: Goods/services which are claimed to

be genuine but are not actually so.
CASES SUMMARY 11/26/2014

ASSAULT & BATTERY

1. Letang v. Cooper: Intention is an essential element of trespass to
person.
2. Fowler v. Lanning: No CoA for trespass to person if intent is not
established.
3. Allen v. Hannaford: For threat, one must look at the apprehensions
created in the mind of P and not the intention of D.
4. Cole v. Turner: Lightest angry touch is battery.
5. Vosburg v. Putney: Liable for all the harm, whether or not foreseeable.

Assault:
Intention to do the act, attempt/threat to use force, apparent present
ability to use force
Battery: Intention to cause physical contact, direct application of physical
force (body or object), harmful/offensive physical contact

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1. Wilkinson v. Downton: Intention to cause calculated harm
Intention to cause calculated harm, outrageousness of D’s conduct,
resultant emotional (+ other) damage

FALSE IMPRISONMENT
1. Murray v. Ministry of Defense: Duration + knowledge is immaterial,
not being informed of grounds for arrest is unlawful detention
Total restraint on mobility (liberty), unlawful detention, knowledge is
irrelevant

TRESPASS TO LAND
1. Dougherty v. Stepp: Damage is not required (actionable per se),
unauthorized therefore unlawful entry is trespass
Intention to be present there (not to trespass), direct physical
interference, without lawful justification, with P’s possession of land

TRESPASS TO CHATTELS
1. Poggi v. Scott: Wrongful motive need not be proven, D exercises
dominion/control over chattel to such an extent that it interferes with
P’s right to control it (conversion)
Trespass: Intention to handle chattel or interfere with it physically, direct
physical interference, without lawful justification, with P’s possession of
chattel
Conversion: To use it as one’s own, intention to claim ownership

DEFENSES TO INTENTIONAL TORTS

Consent:
1. Mohr v. Williams: Consent does not apply when its scope is exceeded
2. Hudson v. Craft: VNFI can’t be used for illegal activities
3. McGuire v. Almy: Consent is not assumed by incurring risk – other
factors such as likelihood of harm, duty, etc. must be taken into
account
Knowledge + voluntary agreement (scope, free, express/implied)
Self Defense:
1. Courvoisier v. Raymond: (i) reasonable apprehension, (ii) honest force
(communication of threat), (iii) reasonable means
Defense of Property:
1. Bird v. Holbrook: Can’t use excessive/deadly force – proportional to
the threat
2. Kirby v. Foster: If chattel was taken peaceably, you can’t use violence
directly. You must first make a peaceable demand and then escalate
conflict
Should be proportionate force.
Necessity
1. Ploof v. Putnam: Trespass in necessity is not trespass
2. Vincent v. Lake Erie Transportation: Private necessity is not an
absolute privilege. Excludes liability for trespass but not for damage
Actual imminent danger, posing a threat to D or others, must not be
created by D.

NEGLIGENCE
1. Caparo Industries v. Dickman: Existence of legal duty has three
elements: (i) reasonability (ii) proximity of relationship (iii) fair, just
and reasonable to impose duty
2. Donoghue v. Stevenson: Proximity is not physical it’s about
relationship between P & D – neighbours closely affected by D’s acts
3. Vaughan v. Menlove: Reasonable man is an objective test, not based
on individual judgment. If D acts contrary to reasonable man, he is in
breach of duty
4. Brown v. Kendall: Standard of care varies with circumstances
5. Fletcher v. City of Aberdeen: Obligation is correlative, persons with
disabilities must take reasonable care, public authorities must keep
disabled persons’ safety in mind
6. Roberts v. Ring: Age and reasonable person
7. United States v. Carroll Towing: D is only liable for unreasonable risk,
risk-benefit formula (P * D > B)
8. Scott v. Shepherd: Intervening acts, when injury arises from the force
of the original act, D bears liability
9. Bolton v. Stone: Unforeseeable risk, remoteness of chance, not liable
10. Overseas Tankship (UK) Ltd. v. Morts and Dock & Engineering Co.
Ltd.: If danger is foreseeable, extent or mechanism of danger is
immaterial and you are liable
11. Byrne v. Boadle: res ipsa loquitur – mere occurrence is sufficient to
imply negligence: (i)
12. Bolam v. Friern Hospital Management Committee: Bolam test for
professional negligence – must use standard of care that an ordinary
member of that profession has (ordinary professional’s skill,
intelligence, knowledge, etc.)

DEFENSES TO NEGLIGENCE
Contributory Negligence:
1. Vidya Devi v. M.P.R.T.C.: Contributory negligence ignored,
apportionment of damages based on comparative negligence
 Consent
1. Smith v. Charles Baker & Sons: Consent must be voluntary, consent to
continue in service is not implied consent to incur risk from negligence
2. Morris v. Murray: Consent must be free, even under the influence of
alcohol he could give consent. Consent may be implied since he sat in
the plane
3. South Indian Industrial Ltd., Madras v. Alamelu Ammal: Putting up
warning signs is not sufficient to infer implied consent
4. Haynes v. Harwood: Consent can’t be used as a defense in rescue
cases
Insanity
1. Breunig v. American Family Insurance: Insane person is liable if he got
prior signals/warning of sudden incapacitation

DEFAMATION
1. Petra Ecclestone v. Telegraph Media Group Ltd.
2. Indian Express Newspapers (Bombay) Pvt. Ltd. v. Jagmohan Mundhara
3. Hough v. London Express Newspaper Ltd.
4. Huth v. Huth
Defenses
1. Abdul Wahab Galadari v. Indian Express Newspaper
2. Govind Shantaram Walaralkar v. Pandharinath Shivaram Rege
Other Shit
1. R. Rajagopal v. State of Tamil Nadu
2. New York Times v. Sullivan
3. Nishi Prem v. Javed Akhtar

STRICT LIABILITY
1. Rylands v. Fletcher
2. Danny Klein v. Pyrodyne Corp.
3. Rickards v. Lothian
4. Read v. J Lyons & Co. Ltd.

ABSOLUTE LIABILITY
1. M.C. Mehta v. Union of India (Oleum Gas Leak Case)

VICARIOUS LIABILITY OF STATE

1. Kasturi Lal v. State of UP
2. UoI v. Jasso & Ors.
3. Rudul Shah v. State of Bihar

CONSUMER PROTECTION ACT

1. Byford v. S.S. Srivastava
2. Mayor, Calcutta Municipal Corporation v. Tarapada Chatterjee
3. Indian Medical Association v. V.P. Shantha
4. Spring Meadows Hospital v. Harjot Ahluwalia