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LAW OF TORTS
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Legal Aptitude Law of Torts 0

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Pritam Sir                                             

CHAPTER 1

LAW OF TORTS

Genesis of Law of torts: The origin of law of torts may be traced to the hoary past of England, but even in England
too originally, there was no distinction as such between the various species of wrongs that we today know say for
example, a wrong (public wrong)            in the form of a crime, a civil wrong in the form of a tort or for that matter,
a wrong in the form of a breach of contract etc. Under such conditions therefore, various kinds of wrongs were
made redressible through the issuance of various kinds of writs and the success of an action during this time
depended purely on the availability of a particular kind of writ although, there used to be various kinds of writs
available to a person to redress his wrong against the wrong-doer under various situations. But if the situation was
such that no writ could be available for the same, the action of the victim, so called the plaintiff was bound to fail
no matter, how much justified and legitimate, it might be. Hence, the law was Ubi remedium ibi jus which in Latin
means that where there is a remedy (writ) there is a right as against the present day’s legal proposition: Ubi jus ibi
remedium that means where there is a right, there is remedy. In short, in those good old days, the prevailing law
did not look from the view point of a right of the person so as to afford him a remedy for the violation of his right
instead, it used to rely on the fact that if there had been a certain situation under which a remedy (writ) could be
afforded to an individual or not. Therefore, if it was found that a remedy was available for a certain wrong, the
existence of a right was thus recognized otherwise not. This old and archaic system of law prevailed for about 500
years until some amendments were made in the law notably, in 1852 when common law procedure act was passed
in England whereby, the old hackneyed system of writs was abolished. Now it was no more necessary to mention
any particular form of action i.e. writ under which the case of the plaintiff was covered and hence, giving rise to
the present day’s proposition of law.

Now the legal position is that whenever the court is convinced that there is a lawful right of a person that has been
violated, a remedy is certainly provided for the same hence, upholding the above noted proposition-Ubi jus ibi
remedium. In short, as new and new torts having been created over the years, bear testimony to the fact that
whenever there has been an unjustifiable interference with the rights of a person reported before the courts, the
courts have unhesitatingly stepped in to provide remedy for the same such that today’s almost entire gamut of law
of torts has become the product of mainly the judicial decisions although, legislature too have contributed
significantly to the growth, development and enrichment of this species of law over the years. Some of the notable
examples in this regard may be mentioned as: Workmen’s compensation act, Law reform (married women &
Tortfeasor’s act), Law reform (contributory negligence act), Defamation act, Civil liability contribution act and
consumer safety act etc…

Law of Torts in India: Unfortunately, there is very little tort litigation in India mainly because, there is a general
lack of consciousness among the people of the country about one’s rights coupled with an unparallel spirit of
toleration which is commonly found all pervasively entrenched as a matter of attitude in every common man of
India such that India glaringly presents a scenario where the emphasis is generally placed on the performance of
one’s duties rather than assertion of one’s rights. This is what that has become the basis of the so called tolerant
attitude of an average Indian. A comparison of such instances can be made to prove this point so far as position in
India and England is concerned. For example, In England, an action was brought when a person was prevented
from crossing over a bridge for some time (the classic case of Bird Vs Jones) or when a person was refused
permission to come out of a wharf (jetty) without paying nominal exit charges (Robinson Vs Balmain New Ferry
Co.). Similarly, an action was brought against when a person got himself locked inside a public lavatory for a short
duration due to defective door handle or for that matter, an action was brought when a person suffered skin
disease due to defect in the undergarments. Probably, there is no end to such instances where the actions were
brought and succeeded in England revealing the extent of consciousness of one’s rights in a country like England.
On the other hand, in a country like India where, the instances are replete with the cases like unlawful detention,
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excess by police authorities, health injury or even death of several persons due to the consumption of spurious
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 food stuffs, drinks or medicines, resultant loss to gadgets due to voltage fluctuations or unannounced power cuts
etc almost go unnoticed almost every day as if an Indian has learnt to put with such torts as matter of habit
without even thinking about bringing an action against the recalcitrant authorities or agencies in a court of Law.

Why Law of Torts? In every civilized society, law imposes a duty on every member of the society to respect the
rights of each other in the same manner; as one expects a duty to be observed by others in the society to respect
his rights say for example, it is one’s right to maintain his reputation in the society and correspondingly, it is the
duty of the others not to injure the reputation of the other person. Similarly, it is everyone’s right to enjoy and to do
whatever one likes to do at his home or land, but it is also his duty to do that in a manner that his act shall not
amount to an interference with the right of that of his neighbor. It is to protect the rights that inherently belong to
an individual in a society and to enforce a duty on the other to respect such a right or rights so as to ensure a
healthy, peaceful and conducive co-existence of individuals in a civilized society that the law of torts has come
into being…  

What is a Tort?         

The word tort has been derived from the Latin term “tortium”, which means, “to twist”. It basically refers to a
conduct, which is not upright or lawful. It is thus, equivalent to the English term called as ‘wrong’.

In French, the word “tort” refers to a wrong.

Thus, the branch of law, which deals with ‘torts’, consists of wrongful acts whereby the wrongdoer violates some
legal right vested in another person. It must be remembered that law imposes a duty to respect the legal rights
vested in the members of the society. If this legal right is breached, it is said to be a wrongful act.

Examples:

(a)        Sahil and Rahat have an argument; Sahil slaps Rahat in a fit of anger. Now, Sahil has committed a tort
called battery.

(b)        Manoj owns a piece of land and he is justified in filing a suit for trespass of land against Uday, who gains
unlawful entry into the land belonging to Manoj.

Precise definition of Tort:

Practically no precise or scientific definition of tort has been framed so far. Thus, it simply refers to a conduct of a
person with respect to the other which is not permitted by law and hence, is unlawful or twisted in nature as is
conveyed by the meaning of the Latin word, ‘Tortium’ which means- ‘to twist’.

According to the famous jurist, Salmond, a Tort is defined as:

“A civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively
the breach of contract or the breach of a Trust or other merely equitable obligation.”

 From the above widely accepted definition, we can conclude that Tort means a civil wrong which is not exclusively
a breach of contract or breach of trust.

What do we mean by a civil wrong?

As we know, a ‘wrong’ refers to some act or conduct which is not permissible by law. If this wrong is committed
against the society at large, it is called as a public wrong. On the other hand, if the same is committed against a
particular individual or a group of individuals then, it becomes the private or civil wrong. It is with respect to such
civil wrongs that the law of torts essentially deals with. In short, a civil wrong is a wrong which is not treated by
the law of a state as being a criminal wrong.

In legal terms, this civil wrong also means the violation of a legal right of that of the other person which law has
vested in him by virtue of his being born as a human being. Some examples of such legal rights which inherently
belong to every individual are his right to privacy, his right to maintain his reputation in the society in which he
lives or his right to live a peaceful and healthy life and so on...

Since, every right has a corresponding and correlative duty, law thus imposes a duty on every other individual in
the society to respect and honor these rights of each other so as to ensure a peaceful and healthy co-existence of
individuals in the society.

The law of torts essentially deals with the violation of such rights of people. These rights rarely find mention in the
written laws of a country (unlike the contract laws, for example) just because, these rights inherently belong to
every individual and our duty to respect them becomes our civic duty; this is what that makes us the citizens of a
civilized country and of a well ordered society. 

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 
 There’s a very popular story that’s always told to explain the concept of interlinking rights and duties. An English
gentleman decided to take a walk in a park one fine day and as he was in good spirits, he started twirling his
umbrella around as he strolled down the path in the park. Unfortunately, the umbrella ended up smacking another
pedestrian on the nose and the second gentleman was understandably, very upset about this. When the injured
man took up the issue with the first man, the first man said: “Sir, I have the right to walk around in a public place in
any manner I choose fit.”

The second man replied: “Sir, your right ends where my nose begins!”

As what all we have discussed above, let us re- examine the same through the following diagram.

                                                                  Wrongs

           

Civil Wrongs                                                                          Criminal Wrongs

           

Contract           Trust             Tort

Thus, when a wrongful act is done, first we have to examine, whether it is a civil or criminal wrong. If the wrong is
a civil one, we have to find out if it is a breach of contract or breach of trust. If we are confident that it belongs to
neither category, then we can conclude that it is definitely a tort.

Connecting concepts: Is it the law of tort or the law of Torts?

Although, it sounds like a very minor difference between having‘s’ and not having‘s’ attached to the word tort. But in law, it
certainly makes a big difference.

Suppose, if this species of law would have been the “law of tort” which it actually is not, then it would have dealt with every
wrongful act, i.e., every injury causing act that is done without valid and lawful justification or excuse, irrespective of the fact
that any legal right of an individual has been violated or not.  Certainly, then, the amplitude and scope of this law of tort would
have been very wide as it could have covered almost every wrong in the realm of human interaction as being a tort within the
meaning of “law of tort.”

On the other hand, if it were the “law of torts”, then it would deal with but, only a specified number of “torts” and not with any
“tort” as could be comprehended within the meaning of law of tort. Thus one could come to court not for any civil wrong done
to him but only for the redress of those  specified wrongs that today fall under various specified heads that the law of torts
today actually deal with say for example, the tort of negligence, Nuisance and defamation etc. This is the concept of some
more specific law of torts rather than a generalized concept of dealing with almost every kind of tort.

 Nevertheless, there have had been divergent views on this question even among the jurists in this branch of law
as:

Winfield, an authority in the field of tort law is of the opinion that it is the “Law of Tort.” He bases this on the principle as
contained in Latin maxim: ubi jus ibi remedium, according to which, for every wrongful injury, there must be some
compensation or remedy.

Salmond, another authority in the field, is of the contrary opinion who contends that it is the “Law of Torts” and not “law of
tort.” He believes that the specific torts are like “pigeon holes” and to prove your case, one has to prove that the wrong
committed against him falls within one of these pigeonholes. This is, understandably, called the “pigeon hole” theory!

So there is no one clear opinion even till date as to whether it is the law of torts or the law of tort. But we need not to bother
about this controversy, for we shall be discussing all those torts which the law validly recognize today and thus, for our own
purposes, treat it as a law of torts.

What is the difference between Tort and Crime?

The fine points of difference between the two may be delineated as below:

1.         A civil wrong is usually less serious than a criminal wrong. For instance, you are walking down the road
one day, and you are injured because of a flowerpot that falls on your head from a badly maintained windowsill,
which has just collapsed, that would be a tort, a civil wrong. But on other hand, if you are walking down the road
and somebody runs up and stabs you in the abdomen that would be a crime!

2.         A civil wrong is against private or individual rights, whereas a crime affects the whole society. A civil
wrong violates private rights, but a criminal wrong violates societal rights.

3.         There are different remedies and procedures in each case. In the case of a civil wrong, the plaintiff, that is,
the injured person would take the defendant, that is, the person accused of committing the wrong, to a court of

law. The plaintiff would seek compensation for the harm; he has suffered from the defendant. In the case of a
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 
 crime however, it is the State, and not the victim, who will prosecute the defendant in the court and the court will,
if ever, award compensation to the victim; it will rather focus on punishing the defendant, if he is found guilty
rather than awarding compensation in the form of damages.

It would however be interesting to note that there are certain actions on the part of an individual which partake the
criteria of both the kinds of wrongs i.e. it can constitute both a civil wrong and a criminal wrong. For instance,
defaming someone is both a civil and a criminal wrong under the IPC-section-499. Similarly, negligent driving on a
busy road which results in an injury to a walker may qualify it to be a tort thereby, calling for damages against the
negligent driver. But at the same time, it may also amount to a criminal offence prohibited under the penal code.

Therefore, we can conclude that in certain situations, the distinction between the two species of wrongs is slightly
blurred. But then, it all depends upon the person concerned in which category of law, he wants to sue the
defendant or for that matter, one can even initiate the legal machinery against the other both under criminal law
and tort simultaneously particularly, keeping in view the factor which remedy suits him the best to satisfy his
claim for the damages to the extent of injury suffered by him.

What is the difference between Tort and breach of contract?

Legally speaking, a tort is the violation of a ‘right in rem’i.e. against the world at large. Whereas, a breach of
contract is the violation of ‘right in personam’ i.e. against some determinate person although, situations may arise
sometime that the same wrong can be both a breach of the contract and a tort.

Yet, the most fundamental difference between the two lies in the nature of the damages awarded although, the
basic principle in awarding the damages remains the same in either case that is restoration of the victim to the
original position (restitutio in integram) as if no damage has been caused to him. But there still lies a difference in
terms of the damages awarded in each case. While, in a tort, the damages so awarded are unliquidated ones
which refer to something which has not been previously determined or fixed between the parties obviously, owing
to the very nature of a tort wrong. Instead, the same is being left to the discretion of the court which award the
damages keeping in view the extent of injury caused to the plaintiff. On the other hand, for a breach of contract,
the damages so awarded are the liquidated ones to mean that they are either embodied in the contract itself or
they could be ascertained from the given circumstances by applying some prescribed method.

Similarly, ‘intention’ may become an important element in tort while assessing the damages so awarded to the
plaintiff, but the same has no place in a breach of a contract.

Finally, under the contract law, the damages are only a compensation such that there is nothing like nominal or
exemplary damages as are awarded to a party in torts, except for breach of a promise of marriage.

Tort – In a nut shell and its essentials:

Tort is a civil wrong which is redressible by an action for unliquidated damages, and which is other than a mere
breach of contract or breach of trust.  

I.          Essential Elements of Tort:

            Tort = Wrongful Act + Legal Damage

(1)        Wrongful Act:

Wrongful Act refers to something done or not done by the defendant so called legally, an act OR an omission on
the part of the wrong-doer (Defendant).

When a person is made liable for a tort, he must have either done an act, which he ought not to have done [e.g.
publishing a defamatory article about a personal] OR has omitted to do that which he ought to have done. [E.g. The
Municipal Corporation omits to close a sewerage tank on the road].

(2)        Legal Damage:

Legal damage means violation of legal right. To succeed in an action for tort, the plaintiff has to prove that his
legal right has been violated.

Note: It is immaterial, whether the plaintiff has suffered any monetary loss. The test is to ascertain whether any
lawful right vested in the plaintiff, has been violated or not.

In other words, a legal damage under law of torts means a legal injury which ofcourse does not mean the same
thing as we generally talk about an injury i.e. harm caused to the body or its part. Here it does amount to an injury,
if somebody’s right has been violated even if no actual injury has been suffered by him. Therefore, one can have a
legal injury even without actual injury. In fact, what is important in the eyes of the law is that something which was
not to be done by a person, has been done or something that was to be done has not been done thereby, resulting

in the violation of someone's legal rights. One can also be injured in the ordinary sense of the word, but not legally
injured and thus, can not claim any remedy under - law of torts.
 
   

What is the remedy against the legal damage?

As already noted above, under law of Torts, the remedy available for the legal damage suffered by a person against
the one (defendant) who has caused such a legal damage, is to go in for a suit against the other person for
damages which under law of torts is described as a suit for unliquidated damages as against the liquidated
damages awarded under law of contracts for breach of a contractual obligation. However, unliquidated damages, a
remedy under Torts refer to such damages, the amount of which has not been determined previously or fixed
before hand, but is left to the discretion of the court i.e. judge keeping into consideration the kind and extent of
legal damage suffered by the plaintiff. Noted that a claim for damages through a court of law is the most
important remedy available to the plaintiff against the defendant both under the tortuous or contractual liability,
for the ultimate object in both cases is to achieve restitutio in integram which means restoration of the plaintiff to
the original position as if no tort or breach of contract had happened to him.

Connecting concepts: Who is Plaintiff and a defendant?

While studying law or practicing the same, you will often come across with these two terms in reference to the
party to a dispute. Thus, it becomes imperative that you should know and get familiar with these two terms. In
fact, the plaintiff in layman’s terminology refers to the one who approaches the court first against the other party.
Or in other words, he is the person whose rights have been violated; the one who has been injured. He is the one
who is the complainant who comes to the court first for seeking a remedy. The defendant on other hand is the
person who is accused of violating someone’s rights or has injured someone. He is the one who denies the
accusation of the plaintiff.

II.        Basic Concepts of Tort Law:

There are basically two Latin maxims that constitute a cornerstone of law of torts and are used to determine
whether a person has a valid action in tort or not i.e. whether he can take the other person to a court of law for the
tort committed against him and if yes, then what remedy he can have against the defaulter. These two
fundamental rules of tort law as contained in the Latin maxims are:

(a)        Injuria sine damno; and

(b)        Damnum sine injuria

Let’s discuss each one herein below with the help of relevant case law on the point so as to understand their full
implication:

(a)        Injuria Sine Damnum:    

This maxim means violation of a legal right without causing any damage or loss to the plaintiff. Know the meaning
of this maxim: Injuria = injury which means violation of a legal right; Sine = without & Damnun = damage. In short,
to read and interpret this maxim as a whole, it means that an injury has been suffered by a person, but without
having incurred any damage. As we have already noted above, even though, no damage has been occurred to an
individual, but he has suffered an injury, a cause of action certainly arises under torts. This is a situation, where
the defendant has done a wrongful act or omission although, in the consequence of which, the plaintiff has not
suffered any loss or damage, but his legal right has been violated. This is a fit case for an action under Tort and
the defendant shall be held liable.

 Note the below mentioned cases as illustrations to this legal proposition.

Case:   (1) Ashby Vs White

In this case the plaintiff was a valid voter at a Parliamentary election. The defendant, the returning officer at a
voting booth, wrongfully disallowed, the plaintiff from exercising his franchise. Now there was no loss, monetary
or otherwise, suffered by the plaintiff. Even the candidate for whom, he wanted to vote, won the elections.
Nevertheless, the plaintiff succeeded in his action against the defendant, for the simple reason that the plaintiff’s
legal right was violated.

Case:   (2) Bhim Singh vs. State of J&K

Consider another leading case, Bhim Singh v. State of Jammu & Kashmir. An MLA of the J.K. Assembly, the
plaintiff was wrongfully arrested and detained by the police, while he was proceeding to the Assembly. Further, he
was not produced before the Magistrate within the stipulated period. This act was a violation of both his
fundamental and legal right. Finally it was held that the state was liable and was compelled to pay damages to Mr.
Bhim Singh. 

(b)        Damnum Sine Injuria: -

 
 The literal meaning of this maxim is that damage has been caused without having any violation of a plaintiff’s
legal right. This is a situation where a defendant has done an act and as a consequence of which, the plaintiff
suffers a loss or damage, but the act in question does not amount to the violation of any legal right vested in the
plaintiff. If this is the case then, no remedy can be claimed under the tort law just because; the tort law
acknowledges only legal injuries even though no damage in strict & real terms has been occurred to the plaintiff.
Consider the following case law as an illustration:

Case Law; Glouchester Grammar School

In this case, the defendant, a school teacher set up a rival school in the same locality. As he charged low fees,
students dropped out of plaintiff’s school and joined the defendant’s school. The plaintiff contended that the
defendant had intended to cause wrongful loss to him. Held that the plaintiff has no remedy, as there was no legal
wrong committed by the defendant. Thus, in this case, you see that there is monetary loss to the plaintiff, but there
has been no violation of his legal right. Hence, there is no case of tort.

Thus a legal act that has been done maliciously will not make a defendant liable. Only if the plaintiff shows that he
is suffered injury on account of the defendant’s illegal act, can be claim damages.

Does “intention” have any role to play in law of torts?

Well! There is NO general rule in tort law that one must have a guilty intention to become liable under tort law just
because, one has committed a wrongful act against the other in pursuance of that guilty intention. Although,
subject to certain exceptions, liability does arise in some torts where intention becomes material say for example,
the torts of assault, deceit and conspiracy. However, in a majority of other torts, the mental condition of the
wrongdoer is totally irrelevant. The reason for this is that tort law requires not just stopping the people from
attempting to hurt others, but also to ensure that the people would do their best not to allow their actions to
inadvertently hurt others. So in essence, tort law primarily wants to catch careless people who may just care about
their rights and not that of the others.

Role of ‘Motive’ in Torts:

The general rule is that motive is not relevant in determining a person’s liability in the Law of Torts.

In other words, “ends cannot justify the means, “nor can means justify ends”.

A wrongful act does not become lawful merely because the motive is good. A lawful act does not become wrongful
because of a bad motive.

In short, we can say that the presence or absence of bad motive or malice on the part of the wrongdoer has no
place in law of torts. Say for example, if the income tax department raids your house and the department can show
that there was a good reason to raid it, then the fact that the raid was prompted solely by the ill will of an officer in
the raid won't make any difference.

Malice or bad motive in the eyes of law can be of two types so called, 'express malice (or 'malice in fact, or actual
malice) and 'malice in law' (or implied malice).

“Malice in fact” is known as 'malice' in common parlance and means ill will or spite against a person. “Malice in
law” however, means a wrongful act done intentionally without any just cause or excuse.

Say, where a man has a right to do an act, it is not possible to make his exercise of such a right actionable by
alleging that he did such and such act out of spite or malice. On the other hand, an act, not otherwise unlawful,
cannot generally be made actionable by a claim that it was done with evil motive. A malicious motive per se does
not amount to injuria or legal wrong.

It must be remembered that malice deals with the motive for an act, rather than whether the act was intended or
not.

What's the difference between motive and intention?

The difference is that intention relates to whether the act was deliberate or not, and motive deals with why the
intended or unintended act was done. For example, consider a situation where you play music very loudly in the
house. Your neighbour takes you to court for causing a nuisance. You intended to play the music, so there is
intention, but you had no malice - you were just playing the music because you enjoyed listening to it and that too
at a loud volume. If, however, you played the music loudly just to disturb your neighbour and to annoy him, then it
would certainly become a case of intention filled with malice.


So does it anywhere mean that a person can do anything on his land, in whichever way he desires so as to hurt,
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 annoy or cause nuisance to his neighbour? 
  Well, simple answer to this question will be a big NO. Had he been allowed to do so, then the very purpose of the
law would have been defeated. Thus, the law always requires him to act reasonably even when he is doing
something or anything on his own land, house or whatever. A maliciously done act may be allowed to go
unpunished under tort law, but only if it remains reasonable. If it is unreasonable per-se, the person can’t simply
get away with it without incurring any liability. So using the lawn mower during the day even just to bug the
neighbour may be allowed to be something construed as reasonable, but practicing shooting near the fence just to
disturb the neighbor’s chickens is prima-facie unreasonable and thus, cannot be allowed under law, but not for the
fact that it was malicious BUT because, it was unreasonable! Here probably comes the rationale behind every law
as being an evenhanded leveling instrument of social control.

Noted herein this context also that we do have certain torts where malice may form an essential ingredient of a
tort [e.g. Malicious prosecution, deceit].

Having understood almost everything about the essentials of a tort including the role of motive or intention
under tort law, let’s proceed to solve a few hypothetical problems based on tort law, analogous to the ones that
you may likely to encounter in your battle cardinal- CLAT in the legal aptitude section…

1.)        FACTS: ‘A’ decides to mow his lawn every morning by using an electric lawnmower. His immediate
neighbour, ‘B’ files a tort claim in the local court against ‘A’ on the ground that he being an old man, gets
disturbed immensely by the noise created by A’s electric lawnmower. Will his claim succeed?

Principle: Damage without violation of any legal right does not give rise to a tort.

Ans:     In order for an action to be labelled as a tort action, there must be an act or an omission and a legal
damage resulting from that act or omission. In this case, there seems to be the commission of an act and legal
damage (or injury) arising out of the same, but on closer examination it emerges that:

(a)        The act is not necessarily something that was not supposed to be done. Every man is entitled to mow his
law with a properly functioning electric lawnmower as long as he does not do it at some unearthly hour, thus
waking up the entire neighbourhood.

(b)        The damage, if any, to the neighbour, is not a legal damage because though every person is entitled to
peace and quiet within his property, this is subject to reasonableness. This means that everyday sounds like lawn
mowing, revving up the car to warm the engine, music systems playing at a reasonable level etc. are sounds that
cannot be complained against. This means that a person‘s peace and quiet is subject to others‘reasonably carried
on daily activities. People can‘t be fussy and force the world to come to a standstill. So in this case there may be
damage, i.e. the neighbour may be disturbed, but the damage is not a legal damage against which compensation
can be claimed in law.

Therefore, this case would be one of damnum sine injuria wherein A’s neighbour might have been injured, but
because his legal right has not been violated, he has no valid claim in law. Therefore, A’s neighbourer i.e. B’s claim
will not succeed.

2.)        FACTS: In the above case, what if while mowing the lawn you also living close by, were aware of the fact
that your neighbour was being disturbed and you were secretly enjoying it? Will your neighbour's claim succeed
then?

Principle: intention by itself does not make an otherwise legal act a tort.

Ans:     Again, we must analyze the problem to see whether there has been a wrongful act and whether there is
legal damage. The only difference between this case and the previous one is that here, while doing the act of
mowing, you were aware that your neighbour was getting disturbed and you were amused by this fact. Therefore,
the question that must be answered is whether this feeling of ill will would make the otherwise lawful act of
mowing illegal?

The answer is that malice or ill will does not make an otherwise legal act illegal except in rare and specific torts
such as malicious prosecution. Therefore, as long as the act you did was per se (by itself) legal, the mere fact that
you did it maliciously does not make it illegal. (This is the same principle as in the income Tax raid example)

Therefore, even in this case, your neighbour's claim will not succeed. Basically what you have to do is to
objectively see the action without considering the intention or motive, and assess whether the action is
reasonable. Applying the test, mowing the lawn is certainly a reasonable action.

3.)        FACTS: You establish a school and charge Rs.1, 000/- per year as fees. Another School has been set up
very close to your school which charges fees just half of it and thus, competition forces you to reduce your fees 

to Rs.500/-. Do you have a remedy in law?

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 
 Principle: A violation of a legal right, with or without damage, gives rise to a tort.

Ans:     This question is based on the facts of the case of Gloucester Grammar School. In that case, the court held
that though there was damage, there was no legal injury, because no one has a right to an unrestricted and
protected market. Fair competition is natural, and there is no right to protect you from it. As the facts of this case
are materially the same as in Gloucester, the principle applied is the same. This is a case of damnum sine injuria
where there is damage without the violation of a right - therefore, you have no remedy in tort law.

4.)        FACTS: You punch a person for no good reason. However, the person is not hurt, can he claim damages
for the reason that you trespassed against this person?

Principle: A violation of a legal right, with or without damage, gives rise to tort.

Ans:     One of the torts recognized by tort law is the 'Tort of Trespass to the Person'. This Occurs when a person
unjustifiably violates your person, i.e., your physical being. Damage need not be proven for this tort as long as a
violation of the legal right is shown. Here your right not be physically Violated is affected. Therefore there is a
legal injury if not actual damage. Thus, this is a case of injuria sine damno where there is a legal injury without
damage. Cases of, injuria sine damno are actionable in court, Thus the person you have punched can claim
damages against you for punching him.

CHAPTER 2

GENERAL DEFENCES AVAILABLE UNDER TORT LAW

When the plaintiff brings an action against the defendant for a tort, the defendant on his part can avoid his liability
by taking the plea of any one of the following defences provided he prove himself of having acted under any of
such defences.

Nevertheless, it must be noted in the context of such defences that these are meant to be used mainly as shields,
rather than swords. This means that if somebody brings a tort claim against somebody else, the defendant can
use these defences to show that he is not liable in that particular situation, and that he cannot be made to pay
damages to the plaintiff.  

Following are some general defences available against torts committed:

(1)        Volenti Non Fit Injuria:

It literally means, if a plaintiff voluntarily subjects himself to some risk, he cannot later complain, as his consent
services as a good defence against him.

For example: Santhosh is playing Volley Ball with his friends in a play ground. He is a hit by a ball on his eye and
bleeds profusely. In this case, Santhosh cannot sue anyone in the playground, as he voluntarily exposed himself to
take any risk that the game would expose him.

Thus, the main elements required to be proved to invoke this defence are:

(a)        That the plaintiff knew, or could reasonably be expected to have known that there was such a risk in the
situation.

(b)        That he agreed, either by statement or conduct, to suffer the consequences of the risk without compulsion
or threat.

This means that it is not enough to defend by saying that the plaintiff knew of the risk; it must be shown that he
agreed to suffer possible harm from the risky situation. A simple example that can be taken in this regard would
be that of a servant who is asked by his master to do a risky `job. Here the servant knows that his job is risky, but
he is not ready to suffer the consequences of this risky job such that the master cannot claim the defence of
volenti non fit injuria if the servant is injured while doing that risky act. An example of a situation where the  
defence can be used is the earlier example of going to watch a cricket match and getting hit by the   ball. You
knew, when you went to see that match that there was every chance that a ball could hit you, and you were
prepared to take the risk, for whatever reason.

Moreover, one must also need to examine that whether the risk was taken freely, or whether the plaintiff was
forced into a risky situation say, in certain cases, such as in a master-servant relationship where it cannot be said
that the risk was freely taken by the servant . Say for example, imagine a situation where I own a mining business,
and both my servants and I know that there are certain mine shafts in the mines that are worn out and are in a very
bad and risky condition and as such, are liable to collapse at any time.

 If I ask my servants to go and work in those dilapidated mine shafts, and my servants do so, then if they suffer 

any injury when the mine shafts collapse, I cannot take the defence of VNFI: in this situation, the law assumes that
-
 there was some pressure upon the servants to go and work in those particular mine shafts – after all,  a servant is
 always under an apprehension that he may suffer some harm if he does not follow the master’s orders.
 Understand the above legal proposition with the help of following case law:

Case law: Hall vs. Brooklands Auto Racing Club.

The plaintiff was a spectator at a motorcar race. Due to a collision between two racing cars, one of it rammed in to
the spectator’s stand and injured the plaintiff. Held the organizers were not liable, as the plaintiff impliedly took
the risk of such injury.

This general defence has a few important exceptions:

Following are the exceptional cases  

a.         Rescue Cases

When the plaintiff voluntarily undertakes a risk to rescue somebody from an imminent, danger created by the
wrongful act of the defendant, the defendant set up the defence of ‘Volenti non fit injuria’ against the plaintiff.

Case Law: Haynes Vs Harwood

In Haynes V. Harwood, the defendant left a horse carriage outside a building, absolutely unattended. Some urchins
playing nearby threw stones at the horse. The horse unbridled itself and started running amok. This frightened the
passers by and everybody started running. A police constable, who was on duty in a nearby police station, decided
to take charge of the situation and succeeded in stopping the horse. In the process of doing so, he sustained
injuries and claimed damages from the defendant. The defendant was held liable and was prevented from setting
up the defence Volenti non-fit injuria.

    

b.         Workmen’s Compensation Act

An employeer cannot escape from his liability arising out of his negligence in ensuring the employees safety. He
cannot set up the defence Volenti non fit injuria.

(2)        When Plaintiff himself is the Wrongdoer:

The defendant can effectively set up the defence that the plaintiff is the wrongdoer, provided some unlawful act or
conduct on part of the plaintiff is connected with the harm suffered by him. A simple example of the same can be
that of a person who tries to illegally enter into the defendant’s house and gets bitten by the defendant’s dog. The
person (the plaintiff in the suit) cannot then claim compensation just because he was also the wrongdoer.

However, the mere fact that the plaintiff is a wrongdoer does not disentitle him from recovering from the
defendant for latter’s wrongful act say for example, if a thief enters your house and encounters a lion in your
garden that almost mauls him to death, you may be liable to compensate the thief for the excessive harm done to
him over and above what was necessary – a guard dog may have sufficed!

Example:

If a trespasser enters the owner’s promises, the owner cannot inflict unnecessary harm on him by saying that the
plaintiff is the wrongdoer.

Case Law: Bird Vs Holbrook

The defendant had set up spring gun is the garden, with a view to protect the garden. The spring gun injured the
plaintiff, a trespasser who came in to the defendant’s land. Held, the defendant could not set up the defence, as he
had failed to put up a notice about the spring gun and also, it resulted in excessive harm.

(3)        Inevitable Accident:

If the plaintiff has an unexpected injury owing to an unforeseen and inevitable event in spite of the reasonable
care on the part of the defendant. It is called as inevitable accident. As the word-‘inevitable’ itself indicates that it
is something or some event which was or is bound to happen and could not be prevented despite exercising due
and reasonable care. After all, how can a person be blamed or held liable for something that he had no control
over or could not prevent?

 An example of a situation can be imagined where this defence may be used is that of a person who, while trying to
separate two people fighting with fist blows, hits another person accidentally. Here, the injury was clearly an
accident and no negligence was involved.

However, it must be remembered that one cannot claim as an accident any action that he could have reasonably
been avoided. For example, you can't swing your arms wildly for no particular reason, hit a person and then claim it 

to be an inevitable accident. Similarly, you cannot claim the defence of an inevitable accident, if you neglect to
-
 
 maintain the brakes of your car in a proper condition, and you knock down somebody when the brakes fail to apply
and you lose control of the car.

 To claim the defence of inevitable accident, the defendant has however; need to prove that he neither have
intended to injure the plaintiff nor he had the means to avoid the injury even by taking reasonable care. The
relevant case law on the point is:

Care Law: (1) Stanley v. Powell  

One of the members of a shooting party accidentally shot at another member, mistaking his movement for that of
an animal. Held that the injury was an accident.

Case Law: (2) Brown v. Kendall

In a fight between two dogs, one belonging to the plaintiff and the other to the defendants, while trying to separate
the dogs, defendant accidentally hit the plaintiff, who was standing close by, in his eye. Held the defendant was
not liable as the injury to the plaintiff was the result of an accident.

(4)        Act of God: The Latin term for this defence is “Vis Major”

 An Act of God refers to some natural calamity such as heavy rainfall, storms, tempests, and volcanic eruptions
and the damage incurred by some one in consequence of that. However, following two essential conditions need to
be proved by the defendant for pleading a defence under this that:

(a)        There should have been the working of some natural forces beyond human control 

(b)        The occurrence of the event in consequence of such natural forces was very much extraordinary and not
the one which could have anywhere been anticipated.

In effect, this defence is very much similar to the defence of inevitable accident with the only difference that in the
case of the former (defence of Act of God); the accident occurs because of an unforeseen, unexpected or
unanticipated natural event. But in a situation, even if a natural event like a storm is taking place, if you can take
reasonable precautions and can avoid the damage, the defence of Vis Major cannot be used.

Therefore, if you knew that a storm was coming and did not put your cattle into a shelter and then, if the scared
cattle cause damage to the neighbour's land on which a matured crop was standing, this defence cannot be used
just because, reasonable precautions could have been taken i.e. huddling your cattle safely into a pen.

(5)        Private Defence:

One can protect one’s person or property by using a reasonable force provided the said use of the force is being
justified and used only and only for the purpose of defence and in the process of self-defense. In pursuance of this
however, if any harm is caused to the plaintiff, the defendant is not liable. Thus, clearly, following two conditions
need to be fulfilled before this defence under torts can be claimed i.e.

(1)        There should be an imminent threat to personal safety or one’s          property.

1. The force used should not be excessive i.e. the response must be necessary for self-defence and not for
revenge and simultaneously, it must be proportional to the attack or threat faced to one’s person or property.

For instance, if someone punches you in the stomach and you shoot him straight away, it would simply be an
excessive use of the force that was not necessary for defending yourself.

Consider the following hypothetical situations to understand the principle of law that is applicable under this
defence:

Situation A:     Sahil’s childhood enemy, Raj walks up to him one fine morning and threatens to beat him up
severely with a hockey stick he, was then sporting in his hand. Sahil started hitting him with a sickle that was lying
in his car parked nearby before Raj could act seriously on his threat which he had issued to Sahil a few moments
earlier. In this case, Sahil cannot claim his defence of private defence. You tell us why?

 Situation B:    Rahul's childhood enemy, Amit walks up to him. Amit had beaten Rahul black and blue just the
previous week, and if Rahul starts hitting Amit with a stick in order to take revenge. Rahul cannot claim private

defence, since the force was not necessary for self-defence at that very moment and that too for the attack, he
suffered a week ago. -
 
  

Situation C:     Rahul’s childhood enemy, Amit walks up to him brandishing a small stick and threatens to beat him
black and blue. Rahul takes out his gun and shoots Amit dead. Rahul cannot claim private defence, since the
response was not proportional to the threat. 

Now consider some relevant case law on the above legal proposition:

Case law: Scott v. Shepherd

A threw a lighted firecracker aimlessly in a crowded market place. It was about to land up on a sweet stall. The
owner of the shop, acting in self-defence quickly picked it and threw it off whereby, it fell on the plaintiff. Held that
the sweet stall owner had acted in private defence and hence, was not liable.

(6.)       Mistake:

Mistake is not usually a defence in tort law. You obviously cannot take the excuse that you didn't know whatever
you were doing, was something wrong or against the law. Logically enough, if that were to be considered a
defence, people would have easily made it an excuse of not knowing the law and then, easily violating the rights of
that of the others with impunity. This simply boils down to the fact that one has to bear in his mind at all times
that ignorance of the law is no excuse, a universal legal truth, we have already used in the beginning of the text.
(Ignorantia lex non-excusat).

However, the defence of mistake can be used for some torts like malicious prosecution. In malicious prosecution,
it must be shown that the prosecutor was acting with malice. But if it cannot be shown that the prosecution was
mistaken about the guilt of the defendant, the tort cannot be proven because - the element of malice isn't there
(the element of malice is defeated by the presence of the element of mistake).

(7.)       Necessity:

“necessitas inducit privilegium quod jura private”. (Necessity induces a privilege because of a private right). This
is a hard-to-use defence.

 In necessity, you have to show that the act you did was necessary in the circumstances. For instance, if you enter
someone's private land (without permission) in order to collect water from his well to put out a fire in your house,
then you were prompted by necessity and the defence could be used in a tort claim against you for trespass (of
property). The level of 'necessity' that must be established to escape liability is quite high. Basically, the wrong
done was small in comparison to the importance of the private right that obtains or belongs to the other.

Thus, before using this defence, one needs to compare the act (wrong) done and yet most importantly, the
pressing necessity of doing such a wrong with the right that has been infringed.

            For instance, if you enter someone's house to take a glass of drinking water from his well. Here,
committing a tort of house trespass just for the heck of fetching a mere glass of water from somebody’s well, is of
course, not a good enough excuse to commit the above tort.  That is why, it is generally said that it is a hard-to-use
defence.

(8.)       Act done under a Statutory Authority:

If the act that caused the damage to someone, but has been done under the authority of some statute or a law that
is a valid defence. For instance, you are putting up in a locality which is closely touched by a busy railway line and
most importantly, the front of your house and the loud noise of incoming and outgoing trains disturbs you a lot,
then you have no option, but to put up with such a noise and thus, have no remedy whatsoever against this
nuisance just because, the construction and the use of the railways is authorized under a statute.

However, this does not give the authorities a license to do anything in any way. In short, they have to discharge
their authority as well as responsibility in a reasonable manner of course, keeping in view your rights that the law
obtains in you. Say for example, if the authorities have the right to build a generator in a residential area, then they
must ensure that it is done without carelessness and that all necessary steps are to be taken to minimize the
noise thus caused by it.

Now practice your hand in solving some of the following hypothetical problems that are purely based on the legal
facts that you may understand from the aforementioned legal concepts and exactly similar kinds of legal
problems have been asked in the CLAT, held in the previous couple of years:

  

-
 
  1.        On the Dussera day, Subhash was witnessing the burning of Ravana effigy at the Dussera ground; a
firecracker just came out of the burning effigy and struck Subhash in his right eye. He was immediately rushed to
the hospital where the doctor in charge declares that Subhash’s eye is severely damaged and he will loose his
sight from the right eye. In this case, can Subhash file a suit under torts against the Dussera management
committee for the damage occurred to him?  

Principle: No person can enforce a right that s/he has voluntarily waived.

Ans: This case simply requires the application of the principle of volenti non fit injuria under which obviously, the
Dussera management committee can not be held liable.

2.         Amit and Rohit are close neighbours and are not in talking terms for quite sometime now. Amit’s pet dog
keeps regularly frequenting to Rohit’s house and more often, spoils Rohit’s garden plants besides, urinating and
defecating here and there in his garden.  In order to get rid of this problem, Rohit digs a deep trench just at the
boundary wall at a point from where Amit’s dog usually intrude into Rohit’s house and covers it with grass. One
day, Amit’s dog falls into the trench and breaks his right leg. Can Amit successfully claim damages from Rohit?

Principle: A person is not responsible for an act that is done in pursuance to his private defence.

Ans: In this case, we should note that for exercising one’s right of private defence one is called upon to use a
reasonable force that is sufficient to keep out the trespassers or unwanted intruders from the precincts of one’s
house.

 Use of an excessive force is not allowed. So what must be determined in the above hypothetical situation is
whether the digging of a deep trench having been covered with grass was an excessive measure for preventing the
entry of Amit’s dog into Rohit’s house.

We can well reason that it was an excessive measure why because, it could have also been possible to stop the
entry or intrusion of Amit’s dog on the part of Rohit into his house say, by erecting a fence all along his house
instead, digging a deep trench.

3.         A lady was walking down in the opposite direction in a narrow one-way by-lane. The lane had no lighting
and it was very dark. A car was moving in the right direction, but without headlights. The driver did not see the
lady and knocked her down. The lady sues for damages for harm due to negligence. Will she succeed?

Principle: No person can enforce a right that s/he has voluntarily waived.

Ans: Though the lady did do something risky by walking down a one-way by-lane, it certainly cannot be said that
she voluntary waived the right to claim damages if she was the victim of a wrongful act such as driving without
lights. Volunti non fit injuria only applies if she had known the risk of a car without headlights and willingly
accepted it — this she did not. As we will later learn when we talk about contributory negligence, it may be that the
court would ask the driver to pay lesser damages to her on account of her own negligence. Basically, her own
initial negligence in walking in the wrong direction will result in her not getting as much compensation as she
would have got if she had been 3 perfectly careful.

CHAPTER-3

VICARIOUS LIABILITY

What is a vicarious liability? The term vicarious liability means “liability of a person for the tort committed by
someone else”. This is an exception to the general rule that a person is only liable for his own wrongful acts.
Vicarious liability thus, causes a liability to arise on the part of some one who himself has not committed the
wrongful act, but by some one else and the law treats the same to have been committed by the first person himself
obviously, by virtue of a special relationship that exists between the two.

This usually happens where the person who committed the act, did it on behalf of someone else. What this special
relationship is all about, we shall discuss it below under which this vicarious liability arises:

Vicarious liability arises in the following kinds of relationships:

(a)        Liability of the principal for the tort of his agent.

(b)        Liability of the master for the tort of his servant.

(c)        Liability of partner of each other’s tort.

1.         Principal and Agent relationship:

When a person appoints another to do any act for him or represent him in dealing with third persons so as to bind
himself by the act of such another person, such a person is called the Principal. 

An agent is a person who is employed to do any

- work for another or to represent another in dealing with third
 
persons. Thus an agent establishes a link between such another person and third person.
 What kind of relationship is there between principal and his agent?

A situation may arise where the person for whose acts, one is made vicariously liable, may not be his servant, but
merely someone, who acts on his behalf. This someone who acts on somebody’s behalf is referred to as an agent.
In short, an agent is someone, who is authorized to do an act for another person (principal) and consequently, he
acts on his behalf. Both, the principal and the agent are liable for such acts.

Noted that there is another kind of relationship under which vicarious liability also arises, is the master-servant
relationship that we shall discuss later. But the basis difference between the two relationships needs to be pointed
out here in advance.

Actually, the difference between a master-servant relationship and a principal-agent relationship remains to be fine
rather than big. While the hire-and-fire test applies to both agents and servants; agents however, do not pass the
direction and control test, since they act largely independently and thus, are not amenable to any kind of direction
or control of their superior, so called as principal.

An example of the liability of agents is the actions of a managing clerk of a particular company. When acting for
the company, he is authorized by the company to do certain actions. Thus, if he does something wrong while doing
his job, the company, which is the principal, is responsible.

Moreover, a few things need to be noted in regard to principal-agent relationship for more clarity such as:

1. The same test of- “in the course of employment” works in the principal-agent relationship as well. For the
principal to be held responsible, it needs to be shown that the agent was acting rightly or wrongly in the course
of his employment.

2. If someone defrauds a friend in their personal relationship, then the mere fact that he is also the managing clerk
of some company, will not make the company liable. This is because he was not acting in the course of
employment.

So, for example, if my neighbour is a clerk at a bank, and I keep giving him small amounts of money from time to
time to deposit in my account, the bank cannot be held liable if it is later on found that my neighbour used to
pocket all the money given to him for being deposited in my account. Simply because, he was the agent of the
bank does not mean that vicarious liability would arise, since I had asked him to deposit the money because of our
personal relationship.

Noted further that an agent is altogether different from an independent contractor from the fact that an agent
always acts on somebody’s behalf. Whereas, an independent contractor does not do any act on behalf of a
particular person i.e., he is not authorized by another person. Logically because, the person who hires the
contractor is not in a position to authorize the said independent contractor.

For instance, if you take a taxi, you cannot, and do not, authorize the taxi driver because it’s not your car, you
simply hire him. On the other hand, if you ask your friend to drive; your own car, you are authorizing your friend and
would be responsible if someone is injured.

Thus, it can safely be concluded that as long as the person is not an independent contractor, vicarious liability will
arise either, on the part of the principal for the wrongful acts of his agent or the master for the wrongful acts of
his servant….

General rules of Law of Agency:

1.         “Qui facit per allium facit per se”. This maxim literally means that the act of the agent is the act of the
principal. The principal is liable for all acts done by the agent during the course of agency.

2.         Whatever a principal can do himself, he may get the same done through the agent, except acts of personal
nature.

Case Law: State Bank of India vs. Shyama Devi

The respondent, Mrs. Shyama Devi, opened a Savings Bank Account with plaintiff’s predecessor (Imperial Bank of
India) at its Allahabad Branch. The respondents gave some cash and a cheque to one Kapil Deo Shukla, who was a
friend of the respondents husband and employed in the said bank, for being deposited in her account. The said
payments were made to Kapil Deo Shukla in his capacity as the respondent’s husband’s friend. No receipt or
voucher was obtained indicating the said deposit. The Bank’s servant, instead of making the deposits in the
respondents account, got the cheque cashed and misappropriated the amount. He, however, made false entries in
the respondents Pass Book and Bank’s ledgers. It was held by the Supreme Court that the servant had acted
outside the course of employment and appellant bank could not be made liable for the fraud committed by its

servant.
-
             
 2.         Master and Servant relationship:

If a servant does a wrongful act in the course of his employment, the master is liable along with the servant. Thus,
the wrongful act of the servant is deemed to be the act of the master as well. This is based on the doctrine
“Respondent Superior” – Le the principal be liable.

Conditions for the liability of the master:

a.         The tort was committed by the ‘servant’.

b.         The servant committed the tort in the course of his employment.

Noted that the liability of a master is not limited only to the act, which he expressly authorizes to be done but he is
also liable for torts committed by his servant on his own accord in the course of employment.

An act is deemed to have been done in the course of employment, if it is either

» A wrongful act authorized by the master.

» A wrongful and unauthorized mode of doing some act, but authorized by the master.

What kind of relationship can be said to be a kind of master-servant relationship?

A servant is a person employed by another person ("master") to do work under the latter's direction and control.
Just make sure you're clear on this fundamental concept - the definition of a 'servant' in law is much wider than
our ordinary, everyday usage while we tend to think of only people such as maids and cleaners as servants, the
legal definition of a 'servant' is much wider — it includes anybody who is employed by another person. This means,
for example, that even a company (remember that companies are treated as juristic persons) can be held liable for
the wrongful acts of any of its employees, such as a General Manager, done in the course of the employee's course
of employment — we will clarify the meaning of 'course of employment' in just a short while! A servant, however, is
different from an "independent contractor" who is asked to do certain work by another but is not under the
"direction and control" of such person. Another test that is used to identify a master-servant relationship is the
hire-and-fire test. If the person can hire and fire, then he is a master. If the relationship is more of a "deal" then it's
a case of an independent contractor. Sometimes the difference between a servant and an independent contractor
is very narrow, but what needs to be remembered is that: 

1. A servant is under the control of the master while the contractor, though taking instructions, is not under
anyone's "control", as he himself decides how to do the work.

2. The servant usually serves one master while the independent contractor may serve different people at the same
time.

For instance, while your driver may be your servant, someone you hire in order to carry your business goods from
one city to another will be an independent contractor who you can only tell what to carry. The decision becomes
relevant because:

1. You can be held liable for the wrong actions of the "servant" you employ.

2. You cannot be held liable for the wrong actions of the "independent contractor" you hire.

Let's make sure we're completely clear on this concept: compare your driver with a taxi driver, and apply both
these tests in turn:

(a)        The Hire-and-Fire test: You can, of course, hire and fire your driver at will – nothing prevents you from
doing this, and in the event you do fire your driver, he will be left without employment, until he finds another source
of income. But if you decide to get off midway in a taxi, will the taxi driver be left without employment? No! He can
just as easily take on any other passenger, and continue earning his income the relationship between you and a
taxi driver is more in the nature of a 'deal'.

(b)        The Direction and Control Test: You can control your driver's actions precisely–you can, for example, tell
him to drive fast or slow, or to take a particular route to reach your direction. Most importantly, your driver is
bound to follow your directions. If you do decide to issue such directions to a taxi driver, he may or may not follow
them – he can just as easily tell you to disembark from the taxi because he is sick of your backseat driving! The
essential point here is that an independent contractor is not bound to follow your directions, and is not under your
control.

(c)        When can the servant be said to be acting in "the course of employment"? It is not sufficient if the person
for whose act another person is being held liable is a "servant" of the latter. In order to proceed under the principle
of vicarious liability, another ingredient needs to be made out - the act must be done "in the course of

employment". Determining what acts are in 'the course of employment' has proved to be a tough task for the
courts, but there are some rough-and-ready solutions.
-
 
  

An act is considered to be in the course of employment if:

1. The act has been directly authorized by the master or comes within a group of acts that the master impliedly
requires the servant to perform.

2. An example of the-first category (directly authorized) is when a master asks the servant to cut wood with an
axe.

3. An example of the second category is when the servant is told by the master to "maintain" the house, and that
would necessarily involve cleaning and operating the fireplace, and even stocking it with firewood, even though
he has not been specifically asked to do the latter.

Where the act is directly authorized by the master, then there is not much of doubt. The doubts arise in the next
category we shall look at. Before we move on to this, however, remember that authorized acts (whether authorized
directly or impliedly) can be done by the servant in one of two ways rightly, or wrongly. Both would fall within the
course of employment. Only unauthorized acts fall outside the course of employment — this will become clearer in
a couple of paragraphs!

1. The act done is an authorized act done wrongly. For example, a driver is asked to take five tonnes of oil from
one place to another and en route, he drives very fast and rams into and destroys a roadside shop. Despite the
fact that the driver drove incorrectly, the master will still be held responsible since the task done wrongly was
the authorized act of driving. An interesting situation arises where a servant is told not do a certain act and then
he does it. For instance, a driver is asked not to race but he does so and injures someone. Is the master liable?
English law (followed by India) suggests that the master can be held liable even in such cases since the act was
the negligent (even prohibited) performance of an authorized act (driving). Therefore, you can tell a person not
to drive fast and still be held liable if he does so, because driving was his job, and even if he did it wrong you
are responsible. On the other hand if the servant-does something that is prohibited and not even in the course of
employment then, the master cannot be held liable. For instance, if the master asks the servant, a cook, not to
attempt to drive the car and the servant takes the car out and hurts someone then the master cannot be held
responsible because driving was not the cook's job and he was prohibited from doing so. Of course, if the cook
takes out the car to go get vegetables for the kitchen the master cannot be held responsible since the wrong
was done while the cook was doing his authorized act (see test (b) given above).

Which act is considered to be outside the course of employment?

 Any act which is an unauthorized one can be called an act outside the course of employment. Although, the fact
remains that an incorrect doing of an authorized act can not be deemed to be an outside the course of
employment and if the one is being done so, it would certainly make the master liable, but not the doing of an
unauthorized act.

An unauthorized act is one that is not required to be done in the course of employment. For instance, if a driver is
asked to take some goods from one place to another and in spite of there being no need to re-fuel the car, he steps
out at a petrol bunk and punches an attendant because of some old rivalry, then that would be an unauthorized
act. Similarly, if your driver goes home and beats his wife, this has nothing to do with the authorized act, and you
cannot be held responsible for the same.

As mentioned above, finding out whether an act is an authorized act, but is done wrongly, is not an easy task. But
here are the two guiding principles that can certainly deduce whether an act is an authorized act (done rightly or
wrongly) or is an unauthorized one.

(a)        First guiding principle in this regard is to know whether the act is in some way functionally connected
(functionally related) to the servant's doing of a clearly authorized act. While an authorized act done rightly is
simple to understand, to understand the concept of authorized act done wrongly, consider the following example -
the driver is talking on 1 his mobile phone while driving the master's car. Remember it's a functional connection,
and not just any connection. So while talking while driving the car is the wrong way of discharging the function of
driving, suddenly stopping the car to fight with someone is not the wrong way of discharging the function of
driving - it is an unauthorized act, and will not be in the course of employment. A practical way of applying this test
is to see whether the act is such that is takes up the servant's attention completely, or whether he is able to
manage both, the wrongful act, and the authorized act, at the same time – talking on the mobile phone while
driving clearly falls within this definition and the master can be held liable in such a case.

(b)        Whether the wrongful injury causing act while act, is done while doing the authorized act, i.e., the
authorized act has not been stopped.

If the answer to (a) is 'YES', then the master will be liable. If the answer to (b) is 'YES', then again the master will
be liable - bear in mind that both these tests may not give you the same answer in  all situations - but even if one
of them indicates that the act done was in the course of employment, the master can be held liable for the same. 

-
 
 Let's take the example of a person who is driving his master's truck and stops over at a petrol pump to fill petrol.
While filling petrol, he lights up a cigarette and sets the truck, and the pump, on fire. Can you say that the act of
lighting up the cigarette is totally unconnected with the authorized act? The answer is 'NO'. The servant drove to
the petrol pump doing the masters authorized task, and his lighting a cigarette while filling petrol was connected
(since it endangers it making it a 'wrong way of doing') in some way to the authorized task: filling petrol, driving
truck. So this will be an authorized act done wrongly.

Similarly, if a driver takes his family on a picnic in the master's car, he will not be doing an authorized act because
it has no connection to his authorized task of driving for his master.

Let's take another example: If a driver gives a lift to someone while driving to the master's workplace on the
master's work, then, too, the master would be liable if the person taking the lift is injured due to the driver's
mistake. Why? Please note that the act of giving the lift was done while continuing to do the authorized act of
driving the master's car, which is a part of the driver's duties.

Connecting concepts: The law usually judges course of employment from the eyes of the injured party. Would that
person have reasonably come to the conclusion that the person who injured him was in the course of employment
of somebody else. The same thing applies to Principal - Agent relationship that we have already discussed above.

You’ll probably be thinking; “Why is the law so hard on the master?” Well, the law is trying to protect the injured
person from not being able to claim against the servant. If the law didn't give a broad meaning to the expression:
‘course of employment’ then, the injured person would have to proceed against the servant, who probably would
not have been in a position to adequately compensate the injured person. This is known as the 'deep pocket'
justification.

I.          What kind of torts committed by his servant that the master can be held liable for? These are mentioned
below:

(1)        Fraud of the Servant: When a servant, while in the course of performance of his duties, commits a fraud,
the master would be liable for the same.

Case Law: Lloyd Vs Grace Smith & co

Ms. Lloyds approached M/s. Grace Smith and Co. to seek investment related advise. The clerk who attended upon
her asked her to sell her properties and then re-invest the proceeds. Ms. Lloyd signed certain documents, which
were supposed to be sale deed. Actually, it turned out to be gift deed in favour of the clerk. The clerk disposed the
property and misappropriated the funds. It was held that the company was liable for the fraudulent acts of the
clerk.

(2)        Theft by the Servant: If a servant steals goods entrusted to his master, the master is liable to the plaintiff.

            Case Law: Morris vs. CW. Martin & Sons Ltd.

The defendant was running a dry cleaning services. A fur coat entrusted to him for dry cleaning was stolen by one
of the servants of the company. Held, the defendant was liable for the theft of the servant.

(3)        Mistake of the Servant: Where a servant, acting on behalf of his master, makes a mistake, causing loss to
the plaintiff, the master will be liable for the same.

            Case Law:  Baylev vs. Manchester, Sheffield

A railway company appointed porters to assist passengers to board the right trains. One passenger had got into
the right train, but a porter erroneously thought, the passenger was a wrong train. He, therefore, pulled him out and
put him in another train. Held, the railway company was liable for the mistake of the servant.

(4)        Negligence of the Servant: If the servant acts negligently in the performance of his duties or displays
reckless behaviour, there by causing loss to the plaintiff, the master would be liable for the same.

            Case Law: Century Insurance Co Vs Northern Ireland Road Transport                                       Board.

‘A’, a driver of a petrol tanker, was B’s servant. While transferring petrol from a lorry to an underground tank, he
struck a match to light a cigarette and carelessly threw it on the floor. This resulted in a fire and damaged the
petrol bank. Held that master was liable for the servant’s negligent manner of doing his work.

(5)        Wrongful Delegation of Duties by the servant himself: If a servant negligently delegates his authority and
allows it to be performed by another person, the master will be liable for such negligence of the servant.

            Case Law: (1) Ricketts Vs. Thomas Tilling Ltd. 

The driver of a bus asked the conductor to drive

- the bus. The conductor drove the bus negligently and knocked
 
from a pedestrian. Held, the master was liable for the negligent delegation of-work by the driver.
             Case Law: (2) Headmistress Govt. Girls Hr. Sec. School Vs Mahalakshmi

The plaintiff was a 9 th Standard Student in the Government managed school of the first appellant. The Aya
employed by the school had a duty to arrange water for the school children. On 7.8.1987, instead of brining the
water herself, the Aya asked plaintiff to fetch water in a plastic pot on the carrier of a cycle from a tube well about
1 ½ furlongs away. While the plaintiff was placing the water pot on the cycle carrier, the carrier spring came out
forcibly hitting the plaintiff’s right eyeball and she lost her right eye. The school authorities and State were liable
for negligent delegation of authority by their servant, i.e. the Aya.

II.        When can the master be NOT held liable for the torts of his servant?

(1)        In such cases where loss/damage arises to the defendant, but without the actual fault or knowledge of the
master.

Case Law: Beard vs. London General Omnibus Co.

The driver of a bus had gone to have his dinner, leaving the bus in the custody of the conductor who decided to
turn the bus to keep it in readiness for the return journey. While doing so, he negligently knocked down a passer
by. Held, the master was not liable, as the conductor acted outside the course of his employment.

(2)        When the servant does the act in defiance of express prohibition and the act is outside the course of
employment.

            Case Law: (1) Twine Vs. Beans Express Ltd.

            ‘A’ provided a van for the use of a bank. He put up two notices on the van, which read that no unauthorized
person is allowed to take a lift in the van. Also, that the driver had been expressly told not to give lift to any
outsider. The driver nevertheless, gave lift to an unauthorized person, who died in an accident caused by the
driver’s negligence.

                        Held that ‘A’ was not liable, for the act of giving lift as it was outside the scope of employment. The
court held that giving lift to an unauthorized person was not merely a wrongful mode of performing an act but is a
performance of an act of a category, for which the driver is not employed to perform at all.

            Case Law: (2) Sitaram vs. Shantanu Prasad

            Sitaram the owner of a car had entrusted it to one Mohammad Yakub for plying it as taxi. The said driver
appointed a cleaner. One day, the deriver allowed the cleaner to use Sitaram’s car for the purpose of taking a
driving test. While taking the test, the cleaner injured a spectator. It was held that the owner was not liable for he
had not authorized the deriver to employ strangers. Secondly, the cleaner at the time of the accident was not doing
the master’s work. Thus the negligence of the servant took place outside the scope of employment.

The act of giving lift to an unauthorized third party:

What is the position in India?

The trend of the decisions of various High Courts in India appears to have discarded the approach of the decision
in the Twine or Conway cases, referred to above. In other words, according to decisions given by various High
Courts, giving lift to an unauthorized person by the deriver makes the master vicariously liable.

Hence students are advised to follow this trend in the examination. Thus, the master is to be held vicariously liable
if the driver gives an unauthorized lift to a third party in the course of his employment. However if the driver gives
lift to a third party by taking a new course of journey, not authorized by the master, the master is not liable.

Effect of Express prohibition laid down by the master:

Sometimes, the employer may forbid his servant from doing certain acts. If the servant does the act in defiance of
that prohibition, it does not mean that the act is outside the scope of employment. Thus, the master is liable for
such acts provided the act is done in the scope of as well as in the course of employment.

Case Law: Limpus vs. London General Omnibus

The owner of a bus had given express instructions not to overtake/or race with other vehicles. The bus driver
defying the instructions, overtook another bus, and in the process caused an accident. However the bus owner was
held liable for the negligence of the driver. The driver’s negligence indeed took place within the scope of
employment.

(3)        Where the, servant is temporarily lent to another person, master may not be liable for the acts of the

servant, if the temporary master exercises control and superintendence over the servant.
-
 Case Law: Mersey Docks & Harbour Board Vs Coggins & Griffith Ltd. 
 A stevedoring comparing hired a crane, from a Harbour Board along with the services of a crane driver, on rolls
with the Harbour board. While unloading cargo for the stevedoring company, the driver negligently injured a
person. Held that it was the Harbour Board, which was liable to X.

III.       Liability of the Employer for the acts of an Independent Contractor           

Generally, the employer is not liable for the torts committed by an independent contractor-employed by him.

However, this rule has some noted exceptions especially, where an employer can be made liable for the wrongs of
the independent contractor under the following situations:

(a)        If an employer authorizes the doing of an illegal act

(b)        The employer’s liability arises for the dangers caused on or near the highway.

Case Law: Tarry vs. Ashton

A person got a lamp fixed on the outside of his house through on independent contractor. The lamp, which was
negligently fixed, was over hanging on the footway adjoining the person’s house. It fell down and injured a passer
by. It was held that the person who got the lamp fixed was liable for he has a duty to see that the job was properly
done.

(c)        An employer is liable for the act of an independent contractor in cases of strict liability.

Case Law: Rylands Vs Fletcher

The owner of a mill employed a contractor to construct a reservoir on his land to provide water to his mill. While
digging, the contractor failed to notice some disused shafts beneath the ground and as such, did not block them
up. Thereafter, he filled the reservoir with water. That night, the water broke through some of the shafts and
flooded the neighbour, Y’s mine. The court held that X was liable for the damage caused to Y, even though the
damage could not be attributed to his negligence.

IV.       Vicarious Liability of the State

According to Art. 300 of the Indian Constitution, the Union of India and the States can sue and can be sued.
However, under what circumstances that can be done is not stated.

Following a number of High Court & Supreme Court judgments, it appears that the courts have held the State liable
for torts committed by its servants only in the exercise of what are described as “non-sovereign functions.”

In the exercise of sovereign functions, the State cannot be made liable for the tortuous acts committed by its
servants.

Case Law: (1) State of Rajasthan vs. Vidyawati

In the case, a Government vehicle, which was driven rashly and negligently by the car driver, who was an employee
of the State Government, knocked down the plaintiffs husband. In an action against the State of Rajasthan, the
Court held the State liable. On an appeal, the Supreme Court upheld the above sentence expressed by the
Rajasthan High Court.

Case Law: (2) Kasturilal vs. State of U.P.

One of the partners of a firm of jewelers had gone to Meerut, to sell gold and silver. While walking through the
market with his goods, he was intercepted and arrested by the police on grounds of suspicion that he was in
possession of stolen goods. He was kept in the police lock up and I his goods were kept in the police custody. In
the meanwhile Kasturilal was released but the goods could not be returned, as the Head Constable had run away
with them. In a suit brought against the State of U.P. for damages, it was held that the State was not liable, for the
loss had occurred while the government was discharging a sovereign function (police function).

Hopefully, you may have understood what all legal nuances that are involved in the tort of vicarious liability. Let’s
do some problem solving here so as to bolster this area of legal aptitude on our part too. Here we go….

1.         FACT: Rahul is the senior manager of a three star hotel belonging to Mr. Malik. One day on account of the
renovation of the first floor of the hotel where Rahul’s office is also situated, Rahul negligently dropped a chair
from the first floor of the hotel that accidentally fell on Pallavi’s head who also works in the same hotel as front
desk executive and is incidentally, Rahul’s wife Can Pallavi claim damages from Mr. Malik, the owner of the hotel
for the damage or injury, she suffered although, at the hands of her own husband?

Principle: Master is liable for the wrongful act of a servant done in the course of employment.

Ans: Yes, Pallavi can very well claim the damages from Mr. Malik because, Rahul is Mr. Malik’s employee; in legal 

terms, his servant, and therefore, the latter is vicariously liable for his servant’s (Rahul) negligence. Note carefully
-
 here that the mere fact of Pallavi being Rahul’s wife, does not exonerate Mr. Malik from incurring thevicarious
 liability of his servant in the eyes of law just because, the wrongful act has been done in the course of the
employment. At the same time, no where in above the given principle, has there been any exception made in
respect of husband and wives. Had it been specifically mentioned in the above principle in this regard, then
situation could have been different.

2.         FACT: Hawaii Motors is a company dealing with second hand cars. Ram came to Hawaii Motor’s office and
said that he would sell their company’s cars against a commission of 15% on each car. Hawaii Motors agreed. In
pursuance of this agreement, one day, in the presence of a prospective buyer, Ram took a car out from the garage
of the Hawaii motors for the demonstration purpose and to let the prospective buyer know about the overall
condition and drivability of the said car. As Ram drove the car out of the garage towards the main road, he
knocked down a pedestrian who suddenly came in front of the car from nowhere. Is Hawaii Motors vicariously
liable for the action of Ram and harm caused to the pedestrian?

            Principle: A person is liable for the acts of someone acting on his behalf.

Ans: In order to solve this problem, you have first of all to see that whether there exists any kind of a principal-
agent relationship. On closer examination, we can see that here definitely exists a kind of principal-agent
relationship just because, the Hawaii Motors has authorized Mr. Ram to drive their cars for demonstration
purposes and he was not doing the same for the first time. Nothing need to be proved further regarding the
existence of a principal-agent relationship between the two, as the facts clearly state about the settlement of 15%
commission between the two parties.

1. FACT: ‘A’ worked as a driver in Company named ‘X’. The manager asked him to drop someone at the railway
station and return back at the earliest. On his way back from the railway station, ‘A’ saw his friend, B and
offered him a lift up to his house, which was in between his office and the railway station. After driving for a
little distance, A took a U-turn towards B’s house; he met with an accident as he could not control the car on
its being driven at a very high speed by ‘A’. In the accident, A’s friend ‘B’ was badly injured and fractured his
jaw.

      Can ‘B’ claim any compensation from Company- X?

Principle: Master is liable for the wrongful act of a servant done in the course of employment.

Ans: As we can see from the facts of the case, what ‘A’ did was an authorized act, done wrongly. But this can not
excuse the Master (company-X) from the liability just because, all authorized acts even though done wrongly by a
servant attract penalty under tort law, if they are being done during the course of employment. And ‘A’ was
certainly in the course of employment as he was officially deputed to drop someone at the railway station

In this case in fact, we need to apply the twin test of determining the difference between an authorized act done
wrongly and an unauthorized act. Applying this test, we can reasonably see that this was an authorized act, but
done wrongly.

4.         Pallavi, an old widow, opened a recurring account with Allahabad Bank wherein, she was supposed to
deposit Rs.5001- everyday. Atul, who was Pallavi's neighbour putting up on rent in her vicinity and works at
Allahabad Bank as cahier cum clerk, used to collect in person this sum of money from Pallavi every day in the
evening for the purposes of depositing the same on daily basis in Pallavi’s account the next day morning. One
fine day, Pallavi went to the concerned branch to get her passbook updated and discovered that no money had
ever been deposited by Atul in her said recurring account. On enquiry, it was revealed that Atul had resigned from
his job and had also vacated his rented accommodation. What can you think, is the remedy available with Pallavi
in this case? She has however; decided to file a suit against the Bank for the recovery of her money on the
ground that Atul was Bank’s employee. Will she succeed?

Principle: Principal is responsible for the wrongful acts of the agent done in the course of employment.

Ans: No, Pallavi will not succeed in her suit against the bank. Firstly, because, she used to give money to Atul for
deposit purely in her personal and private capacity and secondly, the time when Atul used to collect money from
her was not when he deemed to be considered in the course of his Bank’s employment.

Refer to the case law involving the similar facts stated under this chapter in the preceding pages entitled:

Shyama Devi vs. State Bank of India-AIR-1978.

5.         FACTS:  Dr. Ramesh was operating upon Amit in a nursing home owned by Dr. Kapoor. During the course

of the operation, due to the negligence of the staff, a small surgical item was left inside the patient's abdomen.
Can Dr. Kapoor be held liable? -
 
             Principle: Master is liable for the wrongful acts of a servant.

Ans: Yes. Nowadays the judicial trend is to hold all hospital staff responsible for any negligence, even if they act
independently and not under much control of the hospital. However, let's stick purely to the principle (as you
always must) - you can apply the hire-and-fire test and it will be found that the staff members are servants of the
hospital. Since they are Dr. Kapoor's servants, he can be held liable

6.         Ravinder is a contractor engaged in the construction of a shopping complex. Ravinder hired a crane from
Arjun for a week. Arjun sent the crane along with a driver, Nathu. As a result of Nathu's neg!igence on the
construction site, a neighbouring house owned by Prakash was damaged. Nathu does not take any orders from
anybody about the manner of his work. Can Ravinder be held liable for Nathu's mistake?

Principle: Master is liable for the wrongful acts of a servant.

Ans: This is based on the facts of the English case of Mersey Docks & Harbour Board (1947). On the same facts,
the court held that the crane drivers were independent and not under the control of the contractor.

In this case, Ravinder cannot direct Nathu as to how to manage the crane. There is no control. All he could tell him
was what to carry. Also, this is not a case of hire-and-fire because there was a deal with Arjun. At the most the
deal could be broken, but Ravinder could not fire Nathu. Only Arjun could fire Nathu. Clearly it's a case of an
independent contractor, and not a master-servant relationship, therefore, Ravinder cannot be responsible.

7.         Raju was a driver who was employed by Hind Petroleum to drive their petrol trucks. All drivers were
strictly prohibited from smoking while in the course of employment. This prohibition was also painted on the side
of the trucks. One day, while transferring petrol from the lorry to the underground tank of a petrol station, Raju
struck a match to light up his cigarette and threw it on the floor. There was a huge explosion and the petrol
station was badly damaged. The station claims damages from Hind Petroleum. Will they succeed?

Principle: Master is liable for the wrongful act of a servant.

Ans: This is based on the identical facts of a case by the name of Century Insurance Company v. Northern Ireland
Transport Board (1942). In that case it was rightly held that this was a wrong way of doing his authorised work and
therefore it was in the course of employment. The act of lighting the cigarette was done while the petrol was being
transferred, so it was connected to / affected the clearly authorized act. It is irrelevant that the drivers were
prohibited from smoking, since it still remains a wrong way of doing the act. The petrol station can claim damages
from Hind Petroleum because the negligent act is in the course of employment, even if not a part of his duty.

8.         Roger was a driver employed by King Company to drive its freight trucks at night. One night, Roger was
very sleepy and handed over the truck to his long-time assistant, John. Due to John's negligence, the truck hit a
car coming from the other side. Can the car owner claim damages from King Company?

Principle: Master is liable for the wrongful act of a servant.

Ans: According to most English cases, this is a case of doing an authorized act wrongly. Part of your duty to drive
carefully is to not let others drive. Therefore, the duty, or the authorized act, was performed incorrectly. In such a
case the negligence was in the course of employment because as we know, it was the doing of an authorised act
wrongly. Yes, the car owner can claim damages from King Company.

DOCTRINE OF STRICT LIABILITY AND ABSOLUTE LIABILITY

What is the DOCTRINE OF STRICT LIABILITY?

In some cases, a person (defendant) is liable for the harm caused to another (plaintiff) even through there is no
negligence on his part and he never intended such a harm to come to the other person. In such cases even the
defence of inevitable accident is also not a valid defence. This is known as “principle of strict liability”. This
principle was laid down in the famous case “Rylands Vs Fletcher”.

Case Law: RYLAND VS FLETCHER

A, the owner of a mill, employed a contractor to construct a reservoir over his land to provide water to his mill.
While digging and constructing the reservoir, the contractor failed to notice some disused shafts under the site of
the reservoir and as such did not block them up. Shortly after the water was filled in the reservoir, it broke through
some of the shafts and flooded B’s (the plaintiffs) coalmines on the adjoining land. Held, A was liable in respect of
the damage caused to B even though the damage was caused not due to the negligence of A, but due to the
negligence of the Independent contractor.


This rule is applicable when harm is caused by the escape of fumes, gas, electricity, wild animals etc.
-
 
 Essential Ingredients for the Application of Doctrine of Strict Liability:

(a)        A person on his land must have brought some dangerous thing.

(b)        The thing thus brought/kept by a person on his land must have escaped.

(c)        It must be a non-natural use of land.

a.         Dangerous Thing:

In order to make a defendant liable it must be proved that he had kept on his land a dangerous thing i.e. thing
likely to cause harm it escapes.

b.         Escape of the dangerous thing:

To apply the doctrine strict liability, the dangerous thing kept on land should escape from the defendant’s land. For
example, if there is projection of the branches of a poisonous tree on the neighbour land, this amounts to an
escape and if the cattle lawfully there on the neighbour’s land are poisoned by eating the leaves of the same, the
defendant will be liable under the rule.

c.         Non-natural use of land:  

Non-natural use refers to some special use by the defendant, which may otherwise expose others to increased
danger. Water collected in the reservoir in such a huge quantity in Rylands V. Fletcher was held to be non-natural
use of land.

Exceptions to the above Rule of strict liability:

(1)        Act of God

If the dangerous thing escapes due to unforeseen and supernatural forces without any human intervention, the
defence of Act of God can be pleaded.

(2)        Consent of the plaintiff

The rule of law, “where there is consent, there is no injury” is applicable where the plaintiff has consented to the
accumulation of the dangerous thing on the defendant’s land, he cannot sue if it escapes and causes some
damage.

(3)        Plaintiff’s own fault:  

Where the thing escapes due to plaintiff’s own default and causes damage, the rule in Rylands vs. Fletcher does
not apply.

Case Law: Ponting Vs Noakes

There was a poisonous tree on defendants land. Plaintiff’s horse strayed in to defendant’s land and died, after
nibbling the leaves of the trees. It was held that the defendant was not liable as the damage was caused owing to
plaintiff’s negligence.

(4)        Wrongful act of third party:

If the harm caused, is due to the act of a stranger (who is in no way under the control of the defendant).

   

What is the Doctrine of Absolute Liability?

The doctrine of absolute liability is a creation of the honorable Supreme Court of India in preference to the rule of
strict liability laid down Rylands Vs. Fletcher. The highlight of the rule of absolute liability is that it is not subject
to any of the exceptions under the rule of strict liability.

This path breaking decision was made by the Supreme Court following two major gas leaks namely the escape of
methyl isocynate from the Union Carbide plant (Bhopal Gas Tragedy) and the leakage of oleum gas from one of the
units of Sriram Foods and Fertilizers Industries (M.C. Mehta vs. Union of India).

As the first case had wrecked havoc on thousands of innocent lives, the Supreme Court feared that industries
dealing with hazardous substance would escape the liability for damage caused by leakage of deadly gases by
pleading some exception under the Doctrine of Strict Liability. Hence the courts in India are in favour of applying
the rule of doctrine of absolute liability instead of doctrine of strict liability.

  

CHAPTER 4 -
 
 REMOTENESS OF DAMAGES

Remoteness of Damages 

Sometimes, the relationship between an act and the damage caused by the same may become so far-fetched and
unclear due to the involvement of many actors in between that it becomes practically difficult to ascertain who
should be held liable for or whether some liability can reasonably be alluded onto some one on account of such
remoteness of the damage. In other words, in some cases the damage may be remote from the act that is sought
to be punished.

The tort law centered on this principle is based on the Latin maxim: "Novus actus interveniens" of “remoteness of
consequences" is a defence to tort liability. The logic is that there are too many intervening acts in the middle for
the first act to be held responsible for the final injury.

First Act 3 → Intervening Act 1 → 3 Intervening Act 2 → 3 Intervening Act 3 → Injury.

This concept of remoteness of damages is governed by the following rules:

Initiating Act or Principal Cause:

It must be remembered that an act may appear remote or distant from the final injury because, there are numerous
acts in the middle, but as long as it is the principal cause of the ultimate injury, the first act is the blameworthy
one. Let us take for instance, the oft-quoted case of Scott v. Shepherd, where a person threw a lit firecracker into
a crowd. This firecracker fell on one person, who threw it away to prevent injury to himself and it then landed onto
a third person. Similarly, this third person defensively threw it away again and it landed on a fourth person, who
eventually got hurt when the firecracker actually exploded. Though, it seems that the first person cannot be
blamed because he did not throw it on the fourth, the fact is that he was the principal cause of the series of
events. If he had not thrown it onto the crowd, the injury to the fourth person would not have occurred. Surely the
first person should have known that by throwing the firecracker into the crowd someone could certainly be injured
(this is the critical logic). In the above leading case, it was the very first person who, actually became responsible
for initiating such a chain of events and at the outset, threw the firecracker into the crowd, was held liable for the
injury to the fourth person.

What are the Tests available for determining the remoteness of the damage?

There are two main tests to ascertain whether the damage was remote or not viz.

(A)       The Test of Reasonable Foresight:

The basis for this test is that a person can only be held responsible for such damages as a reasonable man would
be expected to foresee what possible results could ensue from his actions.

For instance, if you take your car out of the garage, and the noise from the car scares some birds, which then ruin
your neighbor’s garden. Obviously, in such a case, you cannot be held responsible because the test of reasonable
foresight is not satisfied. But then the question arises as to:

What do we actually mean by a 'reasonable person'?

This concept was first introduced in the case of Vaughan v. Menlove (1837) and the court while hearing the case
observed, "... the care taken- by a prudent man has always been the rule..." Simply put, a person who takes the
amount of care expected of a normal, sensible person. The law does not expect you to be a superhuman who
keeps in mind every indirect and the knowledge of nearly every impossible outcome. By reasonable, it is expected
that you keep in mind the possible outcomes before doing an act. This is the popular and commonly used test to
know the qualifications of a reasonable person.

(B)       The Test of Directness:

According to this test, a person is held guilty for all the results that can be the direct consequences of his act
irrespective of the fact that whether he could have reasonably foreseen them or not.

For instance, in an English case, a company hired a ship to transport a cargo of oilcans. The oilcans were leaking,
and soon, oil gathered in the hold of the ship. Later, a plank was negligently dropped into the hold. This plank
caused a spark and the hold, containing oil, caught fire. The ship was destroyed and the hirer-company was held
liable according to the test of directness. Here, the company could not have known that the hold of the ship was
full of oil. But the fact that they dropped the plank made them liable because the fire was a direct result of that
(the spark would not have occurred if the plank had not been dropped). If the test of reasonable foresight were
employed, the company would not have been held liable since, they could not have known that the dropping of the
plank, even if causing a spark, would have lit a leaked pool of oil. The test of directness is no longer used, so the
applicable test is that of Reasonable Foresight. Of course, you must first check to see which test is given in the 
principle and then apply that!
-
 
SOLVED PROBLEMS BASED ON REMOTENESS OF DAMAGE:
 1.         Ramesh sent certain goods by horse-drawn carriage to a customer's place. On the way there, the servant
who was driving the carriage left the carriage unattended by the side of the road and went to have a cup of tea.
Some children who were playing nearby threw stones at the carriage and frightened the horse. The horse started
running wildly. The horse was about to run over an old man when a traffic policeman caught hold of the horse,
and was injured in the process. Is Ramesh liable?

Principle: A person is only responsible for those consequences from his actions that are reasonably foreseeable.

Ans: The facts are identical to the facts of a case called Haynes v. Harwood (1935). In this case, the court rightly
held that even if there seemed to be several acts in between the acts of the negligent servant and the injury to the
policeman, what must be seen is what caused the entire event in the first place. The court held that the servant
should have foreseen that the animal could have been frightened by some mischief since it was left alone by the
side of the road. Therefore, 1 the servant was negligent. 

Please note one interesting fact here: the principle does not mention any principle of vicarious I liability, so though
the servant is liable, how can you presume that even Ramesh (the master) is liable? Interesting, isn't it'? If
however, the answers given seem to suggest that the examiner assumed I you would know about vicarious liability,
then pick the answer that makes both Ramesh and the servant liable. Usually you are not supposed to apply any
law beyond the principle given in the problem. On the other hand, if the answer choices contain an option that only
the servant is liable and vicarious liability is not given, you must pick this option.

2          There was a leakage of oil from Ramesh's ship. Because of the sea breeze, the leaked oil drifted across to
a harbour 100 miles away, and collected near a ship belonging to Prakash Prakash's ship was undergoing some
repairs, and because of a spark from the repair work, the oil caught fire and the ship was damaged. Can Prakash
claim damages from Ramesh?

Principle: A person is responsible for those consequences of his acts that are reasonably foreseeable.

Ans: The facts of this case are based on a case known as the Wagon Mound Case (1961). In this case the court
held that nobody could have foreseen that the oil would travel this far to a ship in a harbour and that it would
catch fire. This did not satisfy the test of reasonable foresight. Applying the same reasoning here, Ramesh cannot
be held responsible - after all, how could he have been reasonably expected to know that the oil would drift to such
a great distance, and then just happen to reach a place where it would be ignited because of some sparks from
another ship undergoing repairs?

CHAPTER 5

TORTS IN RELATION TO PERSONS

 These torts in relation to persons can better be described as a kind of trespass to the person of an individual i.e.
an unlawful intrusion or act with respect to the body of an individual say for example, issuing a kind of threat or
even the actual use of force that is unlawful and unjustified against a person or for that matter, restricting the
movement of somebody’s person un-authorisedly. Since the body of every individual is held to be inviolable and is
not to be interfered with by anybody without lawful justification and if this limit is crossed, the tort law considers
such an act or acts as a well recognized civil wrong. These torts in relation to the body of an individual can be
classified into the following main categories:

(I)        The tort of ASSAULT:

It is an act of one party, which puts another person in a reasonable fear of an immediate attack. It is an attempt or
a threat to cause hurt to another, coupled with an apparent ability and intention on the part of the defendant to do
the act.

Examples:

(1)        ‘A’ advances towards B with clenched fists, but is stopped by C. An assault has been committed by A.

(2)        Pointing a pistol, whether loaded or unloaded, towards the plaintiff is an assault.

In more clear terms, we can thus say that a tort of assault is deemed to be committed when the defendant does
something that causes a reasonable apprehension" of battery in the mind of the plaintiff. This means that assault
occurs when the defendant does something that scares the plaintiff into thinking that he is going to be subjected
to unjustified use of force, i.e., battery. Of course, law assumes that the plaintiff is a reasonable and not a
sensitive man. For instance, if someone verbally abuses you without a suggestion of violence and you think that
you are going to get battered and you venture out taking any action against the other person under such an
apprehension, then your action is not a reasonable reaction.


-
 
 A necessary requirement for assault is that the defendant should have the ability to do harm. For instance, if a
man on a hospital bed with Plaster over his body shakily lifts his broken hand and says "I'll bash you up", it would
not be an assault, since the man has no ability to inflict harm. Similarly, if a man says, "I'll shoot you down" and
you know that he doesn't have a gun, then there is no question of assault at all.

A good example of assault is conveyed by the historical case called, Stephens v. Myers (1830) in which, the
defendant was told by the majority to get out of a meeting. The defendant approached the chairman with a
clenched fist saying that he would rather pull the chairman out of his chair than be evicted from the room. The
warden managed to stop him from doing so. The Court rightly held that the defendant was liable for assault.

(II)       The tort of BATTERY:

Battery may be defined as the intentional application of physical force to the body of one person by another,
without his consent or lawful justification. It includes the actual striking of another person or touching him in a
rude, angry or in a revengeful manner.

Thus, in order to prove the tort of battery committed by one against another, one has to prove the following two
conditions:

(i)         There was a use of force: 

The force does not have to be great. There need not even be any hurt caused due to the use of force. Even spitting
or throwing water on a person and touching in someone up forcefully, is enough use of force for battery. It’s
enough that there was some use of force. Passive obstruction, however, is not battery. This means that a person
blocking your path would not be said to have used force.

(ii)        The use of force was without any lawful justification:

In order for a tort of battery to be proved, it is necessary that the use of force be intentional and without any lawful
justification. This means that an accident will not constitute battery as long as there was no negligence involved.

For example, there is a leading case law on the point in which the court ruled out any battery involved and
concluded the defendant’s act to be purely an accidental one.

In Stanley v. Powell (1891), the defendant (Powell) and the plaintiff (Stanley) were members of a hunting party.
Powell fired at a pheasant, but the bullet instead of hitting the pheasant, hit a tree and bounced back and injured
Stanley. The Court held that this was a pure accident and there was no battery whatsoever involved on the part of
the defendant (Powell). Now consider the following common examples to understand the point:

Examples:

(1)        A hits B by throwing a stone at him, he commits battery as soon as the stone touches B’s body.

(2)        X spit on Y’s face.

Difference between Assault and Battery

In the case of assault, actual contact is not necessary, though it is very much required in a battery. Every battery
includes assault, but every assault may not result in battery. For example, pulling away a chair, from one who is
about to sit on it, is an assault until he reaches & touches the floor. When he comes in contact with the floor it is
battery.

In other words, we can conclude that that assault always comes before the battery.

For instance, approaching a person with a clenched fist is an assault, while actually punching him anywhere on his
body, is battery.

Similarly, Assault is a threat to use force while, battery is the actual use of force.

Note carefully also the fact that we do have certain rare cases wherein, battery is not preceded by an assault say
for example, if I walk up from behind you and pull out the chair you are sitting on, I will have committed battery,
but not assault, since you had no idea that I was behind you, and there could not have been a reasonable
apprehension of force in your mind.

(III.)    The tort of FALSE IMPRISIONMENT:

This is another tort that constitutes trespass against a person. This tort occurs when a person is deprived of his
liberty. If someone locks you up in a room without justification, the tort of false imprisonment is said to have been
committed.

In order to prove that this tort has been committed, the following elements need to be established: 

 (a)        The plaintiff's liberty had been totally- restrained:  

 In order to prove a tort of false imprisonment, there must have been total restraint on liberty. This means that the
plaintiff must have had no avenue of escape or alternative route. For instance, if a man is blocked from going
down a particular path, but has the option to go back, then that would not be a total restraint, and therefore, there
would be no tort of false imprisonment. Similarly, if you were locked in a room that has another unlocked door
leading out, then it would not be false imprisonment, since there is an avenue of escape available to you.

Furthermore, in order for a tort of false imprisonment to be proved, some authorities believe that it must be shown
that the plaintiff had knowledge of the fact that he was imprisoned. According to them, a sleeping person cannot
be falsely imprisoned if, when he awoke, his door was open. This is, however, a controversial view, and others
believe that a person need not know of his imprisonment. Please see what the principle says when you are
deciding. If the principle says nothing about the imprisoned person knowing or not knowing about his
imprisonment, then it's not relevant!

(b)        The restraint so imposed was without any lawful justification:

If the restraint imposed is with justification, then a person cannot be said to be falsely imprisoned. For instance, a
person who is put in jail for a crime, or pending trial, cannot claim to be falsely imprisoned20. Similarly, a person
suffering temporary insanity cannot claim to have been falsely imprisoned if his confinement was carried out for
his own or for others' safety. Another example is that of a restaurant owner, who may be justified in stopping you
from leaving the restaurant until you have paid the bill.

(IV.)    The tort of DEFAMATION:

Every man has a right to his reputation, which he considers more valuable than any other property. If a person
injuries this reputation, it constitutes defamation. The term defamation is a generic expression and includes (i)
Libel and

(ii) Slander.

A libel is a defamatory statement made in some permanent and visible form. Example: Writing, picture, printing,
status etc.

A slander on the other hand, is a defamatory statement made by spoken words tending to injure the reputation of
another.

Thus, “libel is defamation addressed to the eyes and slander is defamation addressed to ears”.

Noted that this above classification of defamation is recognized only under the English law. So far as India’s law is
concerned, there is no such distinct classification such that Indian law treats both kinds of defamations either
Libel or Slander under the same rubric of defamation.

What are the essential conditions to prove Defamation?

(1)        The statement must be defamatory:

A defamatory statement is one, which tends to lower a person in the estimation of right-thinking members of
society.

Noted that a statement can be referred to be as defamatory even if it does not sound to be defamatory, prima-
facie, but its defamatory meaning can be deduced or construed from its hidden meaning. Such a hidden meaning
in law is referred to as ‘innuendo’. In other words, we can say that a statement can be either prima facie
defamatory by which we mean that the statement is injurious to someone's reputation on the face of it. For
instance, when you say that someone "has a tendency to lie and steal". This is a prima facie defamatory
statement. Or

On the other hand, the statement may also have a hidden meaning (innuendo) that is defamatory. For instance,
when you say that "Mr. A is staying with Ms. B and both are unmarried". Here you are suggesting something by a
hidden meaning. By hidden meaning, it is not meant that the public cannot see it, but that it is just below the
surface and not explicitly said.

(2)        It must always refer to the plaintiff: If the defamatory statement was not referring to you then you cannot
claim that your reputation was injured. Of course, what is important is what the people exposed to the statement
believe. If they think it referred to the plaintiff, then it will be defamation. In such a case, the Maker of the
statement cannot say that he was not referring to the plaintiff.

(3)        The Statement must be published: Publication does not mean that the defamatory matter must be
published in a newspaper or a magazine. Publication means the defamatory matter is made known to some person
other than the person defamed.

Following are examples of publication:
-
 » A tells B in the presence of C that B is a rogue 
 » A writes a defamatory letter about B, who is blind and posts it to him in a sealed cover, knowing well that his
wife has to read it for him.

Defences to defamation:

(1)        Truth

If the alleged defamatory statement is substantially true, even though some details may be untrue, the defendant
has complete defense in Civil Cases.

(2)        Fair and bonafide comment

A fair and bonafide comment on matter of public interest does not attract any liability unless it is written
maliciously.

(3)        Privilege

When a person stands in such a relation to the facts of the case that he is justified in saying/writing what would
be slanderous or libelous in the case of anyone else, he is said to have a privilege.

There are two types of privileges:

Absolute privilege:

In matters of absolute privilege, no action lies for a defamatory statement even if it is false and is made
maliciously and out of improper motives.

Example: Article 105(2) of our Constitution states that no action lies for statements made by members of either
House of Parliament in their places in the Houses, however injurious they may be to the interest of third persons.

Qualified privilege:

When a person makes a statement in order to protect his own interest, which may be defamatory when any other
person makes the same statement.

Example: “An employer tells his employee not to supply goods to a particular client, because he believes that the
client has no intention to pay for the goods. The employer is protected by qualified privilege, as he made the
statement to protect his own interest.

Having understood the vital concepts that are involved in torts committed in relation to the body of a person,
let’s now zero in on some hypothetical problems pertaining to the above concept. Here we go…

1.         Ram who is Shyam’s patient is unhappy with the treatment he is receiving from his doctor. He continues
the treatment. His illness disappears by itself after sometime. Ram is very upset with Shyam because, the
treatment costed him a lot of time and money. He writes a letter to Shyam accusing him of cheating and
unnecessarily prolonging his treatment just for the heck of seeking consultation fees when, he did not suffer
from any ailment at all. He further claimed that Shyam deliberately extended his treatment and caused his health
to worsen even more than he actually required. Shyam showed this letter to his personal lawyer who advised him
to file a lawsuit against Ram for defamation. Will he succeed in his defamation suit against Ram?

Principle: If you cause injury to a person's reputation without any lawful justification, then the tort of defamation
is committed.

Ans: No, the suit will not succeed because, here the patient (Ram) has just written a letter to the doctor and no
one else. In order to constitute the tort of defamation, Ram must have told or made known the accusations
whatever, he has leveled against his doctor to someone else i.e. other than the doctor that could have amounted to
the publication of the same so that his reputation could deemed to have been injured in  the eyes of law.

2.         Mr. Ram and Shyam decided to have a cup of tea in the office canteen. As they moved towards occupying
a corner table for a seat, one of their colleagues, Mr. Atul who was already there in the canteen, pulled out the
chair in between conversations on which Ram was about to sit in consequence of which Ram fell down on the
floor only to become a laughing stuff for every body around in the canteen. Ram decides to sue Atul for the tort
of battery. Will he succeed?

Principle: Anybody who makes use of an intentional force against another without lawful justification is deemed
to have committed battery.

Ans: Yes, he will certainly succeed in bringing a law suit against Atul for battery.

(IV)     NERVOUS SHOCK


Earlier, no action could be taken for any metal suffering/emotional disturbance caused by the negligence of the
defendant. However, it is now recognized that - if by reasons of an acute shock to the nervous system, the activities
 
of the body are impaired and incapacitated from functioning normally, there is a clear bodily injury.
 Example: The defendant by way of practical joke informed the plaintiff that her, husband had his leg broken in an
accident. The plaintiff got a nervous shock and became seriously all. Held, the defendant was liable.

Case Law: Bourhill V. Young

The plaintiff a fisher-woman was unloading baskets of fishes from the cart. She saw a motorcyclist go pass her, in
top speed. A short while later, she heard a collision. She went to the accident spot and saw blood spluttered all
over. She suffered nervous shock and as she was carrying a child, she delivered a stillborn child. She sued the
legal representatives of the deceased motorcyclist. She was not allowed any compensation, as the deceased could
not have foreseen the nervous shock suffered by the lady, also he owned no duty of care to her.

(V)       NEGLIGENCE

The word ‘negligence’ refers to the breach of a legal duty to take care which results in damage to the plaintiff. In
short, negligence is the absence of care according to the circumstances.

Elements of Negligence

In an action for negligence, the plaintiff must prove the following three points:

(1)        That there was an existence of a legal duty to take care, owed by the defendant to the plaintiff.

(2)        That there had been a breach of that duty by failure of the defendant to take such care as a reasonable
man would have taken.

(3)        That as a result of the breach of duty referred to above the plaintiff has suffered damage.

1.) What does a duty of care mean? In order to establish a tort of negligence b y one against another, a legal duty
of care on the part of that of the other person (defendant) with respect to him (plaintiff), becomes an element of
fundamental importance for sustaining the charge of negligence against the defendant.

A legal duty is quite distinct from moral, social or any religious duty. According to some, praying in the morning
might be a religious duty and according to others rescuing a person in trouble (e.g. drowning child) might be a
social duty, but these are not legal duties. There is no law that lays down all the legal duties of a person. What is a
legal duty depends upon the law applicable to that situation and the facts of the matter. In some cases, a duty of
care is evident, such as in a doctor-patient or a lawyer-client relationship, but others, it has to be found out.

Another example of owing such a duty of care would be that of a driver and the people around. If the driver were to
drive rashly and carelessly, then all the people around him would be affected, and therefore, every driver while
driving his car must keep the care of these people in mind. Thus, the driver owes a duty of care to other people
using the road. Keep in mind that the duty of care may arise because, of the relationship that two people are in, for
example, a doctor-patient relationship, or because of the particular situation that the parties are placed in, as in
the instance of the driver and the other people on the road.

Other examples in connection with the word ‘duty of care’ in this context are:

(1)        Duty of care to pedestrians and other road users while driving a vehicle.

(2)        Doctor’s duty to his patients. Do find the following relevant case law on the point:

Case Law: (1) Donoghue V. Stevenson

A man bought a bottle a ginger beer for his girlfriend manufactured by fine defendant. The lady drank the contents
of the bottle directly. Later she poured the remaining contents into a glass. To her utter shock, she noticed that a
dead snail popping out of the bottle. She fainted and fell ill, as she had already consumed a portion of the drink. It
was held that the manufacture was liable to the lady for “negligence”.

Duty of care exists only where possible injury can be reasonably foreseen:

As we can notice in the above case of Donoghue v. Stevenson, wherein, the Court stated that a person only has a
duty of care to avoid those injuries that are reasonably foreseeable. This means that a person does not have a
duty of care as regards consequences that no reasonable man would have thought about and have had happened.
To put it quite simply, if you are a reasonable man, the law will not hold you responsible for an injury that you
could never have thought likely to be caused.

For example, a popular case law explaining this point is Cates v. Mongini Bros (1917). In this case, the plaintiff
was at a restaurant when a ceiling fan fell on her and she was injured by the fall of such a fan. It was found that
the falling of the ceiling fan was not due to poor maintenance, but due to an internal/latent/hidden defect in the
structure of the fan. The court held that the owners of the restaurant could not foresee such an incident and were
not responsible. 

Let’s understand this concept of foresee-ability

- by taking some more common examples:
 
 Example l: A bus stops at a bus stop and starts off again without letting the boarding passengers get inside the
bus fully. The bus driver then attempts to overtake a truck and the passenger is squeezed between the two
vehicles and injured severely. The bus driver will be held liable because even if he did not know that a passenger
was hanging outside when he overtook the truck. He should have known that by stopping at the bus-stop for too
short a time, there were likely to be people who had not been able to board the bus successfully.

Example 2: During a rainstorm a person slips into a flooded pit. There are some exposed naked wires in the, pit
that electrocute him. Now, the person who dug up the pit may actually not have expected the pit to fill with water
and the naked wires to electrify the water, but a reasonable person is supposed to be aware that something like
that could happen in the event of rainfall. Though he may not have foreseen that the pit would fill with water and a
person falling in would have been electrocuted, he should have foreseen that some harm could have come of the
pit and the exposed wires. Thus, the law requires you to think hard and harder where a dangerous item is
concerned, but not so hard that you have to seek out all probable and highly unlikely consequences. Remote
possibility is not the same thing as reasonable forseeability and what is required is the latter and not the former.
For instance, you grow some flowers in your garden whose pollen grains cause an allergic reaction in one among a
million persons. You new neighbour has such an allergy, and suffers from it because of the flowers in your garden.
You are not liable-, because the allergy is only a remote possibility, and not something that is reasonably
foreseeable.

Another noted case law on this point is:

Case Law: (2) Wagon Mound Case

The wagon mound was an oil tanker ship. Due to the negligence of the servants on the ship, oil dripped from the
ship. Unfortunately, there was a big tide, which carried the oil to the wharf. In the wharf, some employees were
involved in wielding operations. The sparks from the welding came in contact with the oil and resulted in fire. Held
that the plaintiff was not liable as he could not have reasonably foreseen that the oil could be carried to a far away
spot and cause fire.

2.)        There is a breach of such a Duty:

After having established that the defendant owes the plaintiff a duty of care it must then be proven that the duty
was breached. Thus it needs to be shown that the due care that was required in a particular situation was not
observed. This gives rise to the issue of how much care is required to be taken once it is known that a duty exists.
Thus, in order to see where due care was or was not observed, we must first see what was the standard of care
required in that situation.

Usually, in order to determine what standard of care was required in a particular situation, the following factors are
considered:

1. The seriousness of the injury caused as compared to the importance of the act causing it.

In some cases, the negligence is small as compared to the importance of the activity being carried out. In effect,
in some cases, the law considers the risk of injury to be unavoidable or "worth it”. In the case of Latimer v. A.E.C
Ltd (1953) a factory was flooded by rain, and in the end, an oily mess was left on the floor. The owner did his best
to clean this up,-51-fd-spread all the available sawdust on the floor in order to make- it less slippery. Yet, there
were some oily patches left. The plaintiff, a workman, slipped, and stated that the factory should have been shut
down. The court disagreed, saying that the risk was too small for such a drastic move - the importance of opening
the factory for all the workers to come in and earn their living was far greater than the injury caused to a single _
workman who slipped and hurt himself.

(ii)        Magnitude of Risk involved in the situation

As mentioned before, the more the risk the activity poses, the higher the standard of the duty of care expected.
The relevant case law explaining the above point is: Glasgow v. Taylor (1922):

In this case, bushes bearing poisonous berries were allowed to be grown in a public garden where children played.
A child, tempted by the look of the berries, ate some of them and died. The berry bush was not fenced off or
marked out. The court held that since the berries were dangerous, and children played in the garden, the
authorities had certain additional responsibilities to fence off or mark out the berries prominently. Thus, the duty
of care was high and the authorities were held liable for negligence.

3.)        There has been some damage as a result of such breach of duty: In order for the plaintiff to succeed in a
legal action based on-negligence, it is necessary to show that the plaintiff suffered some damage otherwise, no
remedy can be availed. In some cases however, the plaintiff’s action for negligence might fail on account of the
remoteness of the damage. But there do arise certain situations under which plaintiff is not required to prove

anything for establishing negligence against the defendant owing to the very nature of the accident. And it is here
-
that the concept of what we call as res ipsa loquitur comes into play. Under this doctrine, the plaintiff is required
 
just to prove the following three things and nothing more than that viz.
 •           The incident/ accident happened;

•           It caused injury; and

•           The defendant was in control of or was responsible for whatever caused the incident.

What does the concept of ‘Res ipsa loquitur’ mean?

This maxim literally means, “The thing speaks for itself”.

The general rule is that the burden of proof of negligence lies on the plaintiff. There are however certain cases
where the plaintiff is not required to prove negligence, because the accident speaks for itself, (i.e., the facts are
strongly in favour of negligence on the part of defendant), the plaintiff has simply to show that the accident has
occurred. Read the following case law for clarity:

Case Law: (1) Byrne V. Boadle

The plaintiff was walking on the footpath of the street. Suddenly, a barrel of flour fell upon him from the upper
floor of the defendant’s warehouse. Held that the barrel of flour had fallen only from the building beneath which
the plaintiff was walking. The learned judge in this case observed ‘A barrel could not roll out of a warehouse
without negligence on the part of those who have control and who should have exercised reasonable care’.

Case Law: (2) Mata Prasad V. Union of India

There was a manned railway level crossing, whose gates were kept open. The plaintiff, who believed that there was
no train in the vicinity, crossing the gates. His vehicle collided with a railway engine. It was held that the Railway
Board was liable on the basis of maxim “res ipsa loquitor”. The fact that the railway gate was open amply shows
the gross negligence of the Railway authorities.

Defences to negligence:

The following defences are available to defendant in an action against negligence:

(1)        Denial by the defendant that he owned any duty to the plaintiff.

(2)        Denial by the defendant of failure to take reasonable care.

(3)        ‘Volenti non fit injuria’

(4)        Plea of Contribution negligence.         

What is contributory negligence?  When a plaintiff by his own negligence contributes to the damage caused to
him, he is guilty of contributory negligence. This negligence can stand in way of recovering damages of which he
complained against the negligent defendant.

In other words, Contributory negligence occurs when the plaintiff himself, by his own negligence contributes to the
damage caused to him by the negligence of the defendant. A good example is that of a person sitting in a bus with
his elbow projecting well outside the window sill. The bus scrapes past a truck in a haste to overtake it and the
person is severely injured. In this case, though the bus-driver was negligent in driving with such a small gap
between the two vehicles, there was contributory negligence on the part of the injured person since he had stuck
his elbow out. This is a classic case of contributory negligence. In the event that the elbow had only been slightly
outside the window sill, the result might have been altogether different, because the driver is supposed to keep in
mind that passengers rest their elbows on the sill or even slightly outside. In such a case, there would have been
no contributory negligence on the part of the passenger.

Another example of contributory negligence is that of the conductor asking the passengers to sit on the roof top
of the bus. If the passengers are injured, then they will fall within the fold of the contributory negligence having
agreed to and in fact, for being on the roof of the bus.

What effect does contributory negligence have on the quantum of damages?

Usually in India, the doctrine of contributory negligence is used by the defendant to reduce the amount of damages
payable to the plaintiff. This is called apportionment of damages. The reasoning of the law is that the more you
contributed to your own injury, the lesser damages you deserve.

Let us take the example of a person who, when invited by the conductor, sits on the roof of the bus. The driver
turns sharply and the person is thrown off and badly hurt. In such a case, the court may reduce the compensation
payable to the plaintiff by almost 50% because of his contributory negligence. This interpretation must be used if
the principle suggests that a person's contribution towards his injury will reduce the damages he would otherwise
have gotten, or, in other words, that the defendant's liability is reduced to the extent that the plaintiff has

contributed to his own injury. Note the following case law to understand the concept of contributory negligence:
-
 Case Law: Butterfied vs. Forrester 
 The defendant wrongfully put a pole across a highway. The plaintiff, who was riding violently at dusk, did not
notice the obstruction and ran into it and was injured. Held, he could not recover damages as he failed to take
due care to avoid the accident and himself has contributed to his damage.

Last Opportunity Rule:

According to this rule, when two persons are negligent, and if one of them had the later opportunity of avoiding the
accident by taking ordinary care, should be liable for the loss.

This is an alternative course of action that the courts generally take recourse to in some of the cases of
contributory negligence so as to determine which of the two parties in an act of contributory negligence are to be
held responsible.

The doctrine of last opportunity states that the person who had the last opportunity to avoid the injury, would be
responsible for any damage arising out of that injury.

For instance, you tie your horses beside a tree on the highway. This means that the horses are actually on the
highway. A car comes and the driver sees the horses, but fails to avoid them and runs them down. In this case,
both the horse owner and the driver are negligent, but since the driver had the last opportunity to avoid the
accident, he shall be liable. Similarly, instead of horses, suppose there was a truck parked in the middle of the
highway, but there was enough room on the side. Despite this room, the car scratched against it. The driver of the
car files a suit for negligence. Then, according to the doctrine of last opportunity, the defendant (the truck owner)
can claim that the plaintiff could have avoided the accident by driving carefully. This doctrine is no longer applied
in India, but having a brief knowledge on your part in this regard is an imperative of the exam.

Note the following case law on the concept of last opportunity rule.

Case Law: Davis Vs Mann

In this case, the plaintiff tied the forefeet of his donkey and negligently left it on the highway. The defendant
subsequently came along that way, driving his wagon and horses at a faster pace than he ought to have done-
under the circumstances with the result that the wagon run over the donkey and killed it. It was held that the
defendant was liable notwithstanding the fact that the accident would not have happened, but for the negligence
of the plaintiff. In spite of the plaintiff’s negligence, he was held entitled to recover damages because the
defendant had “last opportunity” of avoiding the accident.

CHAPTER 7

NUISANCE

Nuisance as a tort means an “unlawful interference with a person’s use or enjoyment of land, or of some right over,
or in connection with that land or property.

In tort law therefore, causing 'nuisance' means unreasonably interfering with a person's right over and in
connection with his property/land. Nuisance may be caused in various ways, such as, the causing of an
unnecessary noise, heat, smoke, smell and other such disturbing activities. For example, your neighbour is in the
habit of setting on fire the morning's pile of dead leaves. He burns this fire in the garden. Smoke from this fire
always blows into your house and is a general and every day’s disturbance. Such behavior would constitute
nuisance since, you are being denied the pleasure of enjoying the right that you have and that too in a safe and
healthy manner on your property.

You don't have to own the property - it is good enough if you are rightfully occupying it for a substantial duration of
time. So even a tenant of a property can complain if a neighbour is creating a disturbance and unreasonable
interference with your right to enjoy your occupation of said property.

Examples of Nuisance:

            Smoke/Fumes/Smell/Heat interfering with the health of others.

Nuisance is broadly classified into two categories as shown below:

                                                            NUISANCE

 
                        Public Nuisance                                              Private Nuisance                   

1.         Public nuisance


It is an act or omission, which causes any common injury, danger or annoyance to the public at large or to the
people who occupy a property in the vicinity. It- also includes, nuisance which endangers the health, safety or
 
comfort of the public.
 While public nuisance is a criminal offence and has been dealt with under criminal law separately. For our present
purposes, we need to dwell only on private nuisance as a species of tort.

To make nuisance an actionable tort, it is essential that the following conditions are being fulfilled:

(a)        Wrongful act

(b)        Injury and damage or loss/inconvenience caused by such an act to another.

(c)        Such injury must be direct

(d)        The injury must be shown to be of a substantial character and not the one of a fleeting kind.

Case Law: Soltau V. Deheld

In a locality there was a chapel whose bells kept ringing all the time without a break. This caused nuisance to the
residents of the locality. The court ordered the chapel to ring bell only at specified timings.

2.         Private Nuisance

A private nuisance is some unauthorized use of a man’s own property, causing damage to the property of another,
or some unauthorized interference with the property of another, causing damage, but not amounting to trespass.

Example: Causing abnormal noise or unusual noise may cause discomfort and disturbances to the neighbours and
may constitute nuisance.

Case Law: Christie V. Davey

The plaintiff, a music teacher gave music lessons to her students. The defendant, her immediate neighbour, was
disturbed on account of these classes. She decided to retaliate by making noises, knocking on the wall to disturb
the classes. Held that the defendant was liable for nuisance.

Essentials of a Private Nuisance:

(1)        There must be interference with the use or enjoyment of land or some right over it.  

(2)        The plaintiff must show title to the thing to which the nuisance is alleged to have been caused.

(3)        The act complained of must result in damage to the plaintiff.

1.)        Interference' with the use or enjoyment of property, caused by the defendant:

We face a lot of minor interferences in our lives. Everyday noises, cooking and vehicle smoke, etc., are in
themselves minor interferences, and we have to endure them in order to coexist. If such minor interferences were
said to be wrongful, then there would be chaos - nobody would be able to go about their everyday work for fear of
disturbing others! Therefore, in order to prove a tort of nuisance, it is not good enough to show that there was
some interference. It needs to be shown that there was unreasonable interference, i.e., interference that is more
excessive than regular interference. For instance, the neighbour cannot complain o the sound of your new electric
lawnmower, but he can complain if your lawnmower has broken down and makes excessively loud rattling sounds
uncharacteristic of a normal lawnmower.

Connecting concepts: A nuisance for a sensitive person is not an actionable nuisance:

Quite often, what is expected and normal for one person may be an interference for another. Law does not take
account of the situation where the plaintiff is more sensitive than the average person, or is doing an activity more
sensitive than a normal activity. Thus, in the eyes of the law, only that interference is deemed to be an
unreasonable one which a reasonable man and not a sensitive man consider it to be unreasonable. For instance, in
the case of Health v. Mayor of Brighton (1908), the court refused to order a power station to shut down one of its
units when church goers were distributed by the 'buzzing'. This was held-To be a reasonable interference and thus,
no nuisance.

2.)        The plaintiff must show the title to the property that he is being deprived of its enjoyment: As stated
already above, any person who is residing or staying on a particular property for quite a period of time is deemed
to have acquired a title over that property so far as his right over that property and its enjoyment is concerned.
Law does not require him to particularly own that property in his name. Even, a tenant can complain against any
interference that he is being subjected to by the act of the defendant.

3.)        Some damage must ensue to the plaintiff: 


In order to prove a tort of nuisance, it must be shown that the plaintiff suffered damage or the threat of damage as
a result of the unreasonable interference to the- use or enjoyment of his land. This is unlike some torts like
 
trespass, (entering a property without permission) where more violation of the right is enough and it need not be
 shown that the plaintiff suffered any damage from the infringement. In the case of nuisance, however, law will
assume damage even in cases when the nuisance has not actually caused the damage but merely threatens to do
so – after all, there is no sense in waiting for the damage to occur when any reasonable person could foresee that
the damage would actually result. This is why because; nuisance is not actionable per se; some damage must have
been caused to the plaintiff to enable him to sue the defendant.

What are the defences available to the defendant against the tort of nuisance?

The following are the defences that are considered valid in nuisance cases:

1.         Statutory Authority:

If the act said to be causing unreasonable interference is, or is related to, an act authorized under a statute, there
can be no claim of private nuisance. For instance, even a reasonable man who is greatly disturbed by sound and
smoke from an adjoining railway line has no action against the railway authorities who are entitled to run the
trains there.

2.         Acquired or Prescriptive Right:

Law recognizes that if for a long period of time the plaintiff has not objected to an act that it is potentially
disturbing, t en the plaintiff cannot, after such passage of time, turn around and complain of the act. The period of
time to acquire this right to continue with the activity is 20 years. For instance, if you live next door to a musician
for 20 years, and he has been playing his drums every morning without complaint from you, then you are not
entitled to complain about it in the 21st year. The musician has an acquired/prescriptive right to do the act that
you claim to be a nuisance.

What cannot be claimed as a defence against nuisance?

1.         It is not a defence to say that others assisted in causing the nuisance. For instance, if you parked your car
wrongly, thus blocking passage through the plaintiff's gate, the mere fact that the obstruction to the plaintiff was
caused by your car along with the other neighbour's car being parked wrongly cannot save you from a tort action.
Both you and the other neighbour are responsible even though your car alone was not causing a nuisance.

2.         It is not a defence to say that the source of the nuisance serves a public good. For instance, if the
authorities lay dangerous tramlines on the road that force the passing cars to climb on the footpath to avoid the
tram, then the fact that the tramlines serve a public purpose, is not defence.

3.         It is not a defence to say that the plaintiff put himself in a position of nuisance. The simplest example for
this is a person buying a house in a residential area, adjoining a workshop that causes nuisance. It cannot be said
that the person put-himself in a position of nuisance or "asked for it", since the workshop owner was doing
something wrong in the first place by operating a commercial establishment in a residential area.

4.         It is not a defence to say that reasonable care was used If you set up a noisy workshop in a residential
neighbourhood, the fact that you did your best to reduce the noise does not hold good as a defence. A nuisance is
a nuisance, whether it is carelessness or carefulness that is involved.

What is the basis of law of nuisance?

“You must not make such use of your property as unreasonably and unnecessarily to cause harm to your
neighbour.”

CHAPTER 8

LIABILITY OF OWNERS FOR DANGEROUS PREMISES

I.          OBLIGATIONS  OF LAND OWNERS

The nature of obligation of an occupier of land may be grouped under the following heads.

(1)        Obligation towards lawful visitor.

(2)        Obligation towards trespassers.

(3)        Obligation towards children.

1.         Obligation towards lawful visitors.


Where a person enters the land of another in pursuance of a contract or is an invitee, the latter must take
reasonable care to prevent injury to the invitee- from danger of which he knew or ought to have known.
 
 Case Law: Indermaur vs. Dames

In that case, the plaintiff, who was a gas fitter, entered the defendant’s premises for testing certain gas fittings
there. White doing so, he fell from an unfenced opening on the upper floor and was injured. The plaintiff, being an
invitee on those premises, the defendant was held for the injury caused to him.

2.         Obligation towards trespassers

A trespasser is one who goes upon another person’s land without invitation of any sort and whose presence is
either unknown to the owner, or if known, is practically objected to.

The general rule is that an occupier is not liable in tort to a trespasser. There are two exceptions to this rule:

(a)        The occupier must not deliberately cause harm to the trespasser.

(b)        He must not act with reckless disregard to trespasser’s safety if he has knowledge of his presence in his
premises or land.

Note:   If the occupier acquiesces to the frequent acts of trespass, he is deemed to have tacitly licensed the entry
of others on the land. Such visitors become entitled to the rights of licensee on the land.

Case Law: Lowerv V Walker

The defendant was an occupier of a field, adjacent to a railway station. Members of the public used his field as a
short cut to reach the railway station. Thought the defendant objected to it, he took no effective steps to stop the
practice meanwhile the defendant bought a savage horse and kept it on his land without any notice. One day the
horse attacked a trespasser (plaintiff) who was seriously injured. It was held that the plaintiff on account of the
tacit permission from the defendant had now been vested with rights of a licensee. Therefore, the defendant was
liable for the injuries suffered by the plaintiff.

3.         Obligation towards children

Children are generally less careful than the adults. They are more susceptible to danger. Hence the occupier must
take reasonable care to guard them against such dangers from which the adults do not need any protection.

Case Law: Glasgow Com V. Taylor

A corporation maintained a public park. A child, who had come to the park, plucked a fruit looking like a berry, from
the shrubs. It was poisonous and the child died after consuming it. It was held that the corporation was liable for
their negligence is not fencing the shrubs.

II.        LIABILITY OF OWNERS FOR DANGEROUS ANIMALS

The liability in tort of a person fro the wrongs that may be committed through the agency of animals under his
control may be discussed as follows:

(1)        Scienter Rule

This rule makes the owner of dangerous animals strictly liable even without proof of negligence for the damage
caused by them if they escape. Examples of such animals are lions, monkeys, elephants and bears etc.

In case of animals of harmless nature, like cows, dogs, rabbits, cats, horses, camels etc, the owner is liable for the
damage caused by them only if it can be proved that the animals had the vicious tendencies and the owner knew
about it.

(2)        Trespass of Cattle

This term cattle include cows, bulls, horses, sheep, goats, poultry etc. It does not include dogs, cats or wild
animals. If any damage is caused by trespass of cattle upon the land of another, the owner is strictly and
absolutely liable.

CHAPTER 9

TORTS RELATED TO PROPERTY

1.         TRESPASS TO GOODS

This consists of wrongful or unjustifiable interference with the possession of goods of another. It may result in
taking the goods out of the plaintiff’s possession or by causing damage to them.

Example of Trespass to goods:-


a.         Throwing of stones at a car.
-
 
b.         Beating animals of another.
 c.         Removing the wheel of another’s car

d.         Shooting birds or beating animals belonging to others

e.         Shifting others goods

           

Trespass to goods is actionable per se [i.e.] without the proof of any damage. Once trespass is proved, the
plaintiff is entitled to damages.

Essential of Trespass to Goods

1.         The plaintiff must show that he had possession of goods at the time of the trespass.

2.         There must be a direct physical interference with the possession of the plaintiff.

3.         The defendant must have wrongfully interfered with the possession of the plaintiff.

2.         DETINUE:-

It is the wrongful detention by the defendant of the goods belonging to the plaintiff.

Example: Anshul gives a Ceiling Fan to Brijender for repair. If Brijender refuses to return the Ceiling Fan after a
damand has been made for its return, it amounts to detinue.

Essentials of Detinue

1.         The plaintiff must prove ownership to the goods.

2.         The plaintiff must have made a demand for the return of the goods.

3.         The defendant must have refused to return the goods.

4.         The plaintiff sues for restitution of the specified goods and not merely damages

3.         CONVERSION:-

It is any act in relation to goods of a person, which constitutes an unjustifiable denial of his title to them.

            Elements of Conversion:-

1.         Dealing with a chattel in a manner inconsistent with the rights of the person entitled to it.

2.         An intention in doing so is to deny that person’s right, which is in fact inconsistent with such right.

Methods of Conversion:-

a.         By wrongfully taking away the goods. [X stealing Y’s goods]

b.         By wrongfully disposing of goods [A delivering the goods to B], a person not entitled to them.

Case Law: Armony V. Delamirie [finder of lost piece of jewel]

A chimney sweeper boy of 13 years found a gold ring. Curious to know its value, he took it to a jeweler. The
jeweler, taking advantage of the boy refused to return the ring. Held that the jeweler was liable for conversion.

….The End….

By: Parveen Bansal

P ro f i l e R e s o u rc e s

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