TORT

TORT DEFINITION
Winfield

 Tortious Liability arises from the breach of a duty primarily fixed by the
law;

 this duty is towards persons generally; and

 its breach is redressible by an action for unliquidated damages.

Salmond

 Tort is a civil wrong

 the remedy for which is a common law action for unliquidated damages,
and

 which is not exclusively the breach of a contract or the breach of a trust, or

other merely equitable obligation.

Sec 2 of the Limitation Act

Tort means a civil wrong which is not exclusively a breach of contract or
breach of trust.

Essentials/Characteristics of Tort:

 A wrong act or omission

 A violation of common law duty

 Legal injury - not contractual or breach of trust

 Legal remedy - ubi jus ibi remedium

 An infringement of private right as distinguished from public right

 Infringement of right 'in rem' and not right 'in personam'

Page 1 of 49
 TORT
Law of Tort

 All injuries done by one to another are tort unless justified by law

 Consonance with ubi jus ibi remedium.

 Winfield and Pollock supported this theory.

Law of Torts (S for Salmond)

 Definitive no of torts outside which tortious liability does not exist.

 Set of pigeon holes

 Salmond supported this theory.

Distinction between tort and crime

 Tort is private wrong. Crime is public wrong.

 Tort is less serious and labelled as civil wrong. Crime is more serious.

 Law of tort is most uncodified, though there is limitation period. Law of

crimes is codified.

 Intention of wrongdoer not crucial in all torts. However, Intention is usually

crucial in cime.

 Suit for tort is to be filed by injured party. Criminal suit is in name of state.

 Compensation is most common remedy in tort. Punishment is common

remedy in crime.

 Detention, conversion, wrongful dismissal etc are purely civil wrongs i.e.
torts. Dacoity, murder, forgery etc are purely criminal wrongs.

Page 2 of 49
 TORT
Similarities between tort and crime

 In both there is violation of right in rem.

 Injunction may be granted in both.

 Various wrongs such as assault, defamation, negligence, nuisance,

conspiracy find place in both.

Distinction between Tort and Contract

In tort, duty is primarily fixed by law. In contract, duties are fixed by parties
themselves.
A tort is a violation of right in rem. A breach of contract is the violation of a
right in personam.
In tort, the obligation arises independently of any consent. In contract, the
obligation is founded on the consent of the parties.
Motive may be taken into account in tort. Motive is irrelevant in contract.
Damages are unliquidated in tort. Damages are usually liquidated in contract.
In tort limitation begins from the date when the damage is suffered. In contact,
limitation commences when the breach takes place.
Pecuniary condition of the wrong doer and sufferer is taken into account in suit
for tort. It is not so in contract.

Torts which are actionable per se i.e. without proof of any special damage
Law in such cases presumes violation of absolute rights.

 Assault & Battery, False Imprisonment

 Trespassing

 Libel

 Private Nuisance

Page 3 of 49
 TORT
Torts which are actionable only with proof of special damage

 Slander

 Public nuisance

Malice in Law vs Malice in Fact

Malice-in-Fact refers to performance of an act which may be legal, but with ill-
will, or hatred, or bad intention.
Whereas, Malice-in-Law, refers to a wrongful act, done intentionally, without
just cause or legal excuse.
Malice in fact or Evil Motive is not relevant to determine a person's liability in
the law of torts.

However, evil motive in relevant for tortious liability in the following cases:

 Torts of Deceit, Conspiracy, Malicious Prosecution, Injurious Falsehood

 Defamation when qualified privilege or fair comment is pleaded as defence.

 Causing of personal discomfort by evil motive may turn an otherwise legal

act into nuisance

 Malice or evil motive may result into aggravation of damages

Requirements for Volenti Non-Fit Injuria:

 Consent must have been free

 The act for which consent given, must be legal.

 There has to be both knowledge and assent. Mere knowledge is not enough.

Page 4 of 49
 TORT
Exceptions of "Volenti Non-Fit Injuria"

 Rescue Cases

 Negligence

 Consent to Unlawful Act

 Breach of Statutory Duty

Examples of Damnum Sine Injuria

 Loss inflicted on individual traders by bonafide competition

 Man acting under necessity to prevent a greater evil

 Defamation made on privileged occasion

 When harm is too trivial, too indefinite or too difficult to prove

Defense in Tort

 Volenti non fit injuria

 Plaintiff is wrong doer
 Inevitable Accident (Stanley v Powell - Shooting Bird but Shot Plaintiff)
 Act of God (vis major) only if it is extraordinary and cannot reasonably be
anticipated
 Private Defense (Cresswell v Sirl - Shooting of Dog)
 Mistake is usually no defense in tort except where torts require malice
 Damnum sine injuria including Exercise of Common Rights
 Necessity - act to prevent greater evil (R v. Bourne - abortion case, force
feeding)
 Statutory Authorities. However, the authorised act must be done carefully
and not negligently. (like railway operations)
 Acts causing slight harm
 Insanity only where a particular state of mind is required
 Extra Cover - Judicial Acts, Quasi Judicial Acts, Audi Alteram Partem,
Parental or Quasi Parental Authority.

Page 5 of 49
 TORT

NEGLIGENCE
Theories of Negligence
Subjective Theory (Salmond & Winfield) S-S

 State of Mind

 Culpable carelessness

 State of Mind

 Mental Attitude of undue indifference

Objective Theory (Pollock) O-P

 Merely type of conduct

 Breach of duty to care

 Negligence is contrary to care

Types of Negligence
Advertent Negligence or Wilful Negligence
Inadvertent or Simple Negligence - ignorance, thoughtlessness, forgetfulness

Essentials of Negligence

 Duty of Care to Plaintiff - Legal Duty & Reasonable Foreseeability of

Injury
Some measure of risk is permitted so that in public interest various kinds
of activities should go on.
Degree care varies according to the likelihood of harm and seriousness of
injury. The amount of care may vary to great extent while the standard of
reasonable man remains the same.

 Breach of Duty

Page 6 of 49
 TORT
 Damages/injury must have been caused to plaintiff. Damage caused must
not be too remote.
When not liable for Negligence

 Non foreseeable injury

 No reasonable likelihood of injury

 Duty not owed plaintiff - proximity in relationship required

Defence to Negligence

 Vis Major

 Inevitable Accident

 Contributory Negligence

 Volenti Non Fit Injuria

 Express Contract

 Judicial Act, Executive Acts, and Statutory Authorities

Distinction between inevitable accident and Act of God

 An Inevitable Accident is one which could not be possibly prevented by

the exercise of ordinary care, caution and skill and hence it does not apply
to anything which either of the parties might have avoided.

 An Act of God is defined as a direct, sudden, insanely violent, natural,

and irresistible act of nature, one which could not by any amount of care
would have been foreseen, or if it has been foreseen, could not be avoided
by any amount of care by any individual.

 The distinction between inevitable accident and act of God lies in the fact
that there is complete absence of human intervention in act of God
whereas it is not so in case of inevitable accident.

 An act which takes place solely due to natural factor beyond human
contemplation may be called as an Act of God but an act in which some

Page 7 of 49
 TORT
human activity is fully or partly involved if occurs accidentally, it is
inevitable accident.

 It is beyond human capacity to prevent an act of God despite all care and
precautions, but an accident which occurs despite ordinary care having
been taken to prevent its possibility is called Inevitable Accident.

 Act of God is the genus whereas Inevitable Accident is the specie of it.

 The Act of God is an exception to the rule of strict liability (i.e. Rylands
v. Fletcher Rule) but it is not so in case of inevitable accident.

 The Courts have no discretionary power in case of Act of God. They

ought to give judgment in favour of defendant.

NERVOUS SHOCK
Plaintiff as Primary Victim
Entitled to recover damages for nervous shock even when psychiatric harm
was not foreseeable as long as physical injury is foreseeable.

Plaintiff as Secondary Victim

Nervous shock suffered by witnessing injury to third parties or destruction to
his property caused by defendant's wrongful act.

 Necessary chain of causation required.

 Need not be in the area of injury.

 Close relationship of love and affection with primary victim required.

 Sufficient proximity in time and space required.

REMOTENESS OF DAMAGES

 A person is held responsible only for consequences which are not remote.

 A man is presumed to intend the only natural and probable consequences.

Page 8 of 49
 TORT
 A man is responsible for the wrongful act only if it is the proximate,
direct or immediate cause of injury (causa causans) and not merely a
cause without any other cause (causa sine qua non).

 In an action for deceit, damages are not restricted to foreseeable damage.

Test for Remoteness of Damage

 Test of reasonable foresight (Wagon Mound case)

 Test of directness (Re Polemis case)

Intended consequences are not subject to doctrine of remoteness.

When damage excluded as too remote

 Defendant's act is not direct cause

 Contributory negligence of plaintiff

 Wrong act of third party (novus actus)

Children do not generally constitute novus actus. Rescue case also do not
constitute novus actus.

NO FAULT LIABILITY
Doctrine of Strict Liability - Rylands v Fletcher

 Also known as wild beast theory

 Non natural use of land.

 Liability even without any fault or negligence

 A positive duty to guard and protect one's neighbours lest they suffer
harm by reason of things artificially brought on one's land.

 Whether the things so brought be beasts or water, filth or stench, or

electricity, or a traction engine or a motor car.

Page 9 of 49
 TORT

Conditions for Doctrine of Strict Liability

 Non natural use of land

 Dangerous thing

 There should be escape of that thing from defendant's land

Exceptions to Ryland's rule (5)

 Plaintiff's own default

 Act of God or vis major (Nichols v Marshland)

 Act of third party or stranger

 Consent of plaintiff

 Statutory authority

Rule of Absolute Liability (MCM v UoI, 1987)

 No exception permitted from Ryland's rule

Vicarious Liability - Liability for tort committed by others

Can arise in following three ways

 Ratification

 Special relationship

 Abetment

Vicarious Liability due to Special Relationship (5)

Page 10 of 49
 TORT
 Principal and Agent

 Partners

 Guardian and Ward

 Company and directors

 Master and Servant

Principles of Vicarious Liability

 Respondeat Superior

 Qui facit per alium facit per se

 Public Policy

When liable for independent contractor

 Strict Liability

 Absolute Liabilty

 Tort is authorised or ratified by employer

 Appointment of incompetent contractor when risk of harm is foreseeable

DEFAMATION
Essentials of Defamation

 Words must be false and defamatory

 Words must refer to plaintiff

 Words must be published.

Principles in Defamation

Page 11 of 49
 TORT
 Intention to defame not necessary

 Presence of malice destroys the 'defence of qualified privilege'.

 Burden of proof is on the plaintiff.

Defences to Defamation

 Justification or Truth

 Fair Comment

 Privilege (absolute or qualified)

NUISANCE
Essentials of Nuisance

 Unreasonable interference

 Substantial interference with the use or enjoyment of land

Defences in Nuisance

 Prescription - elapse of long period

 Statutory Authority

Ineffectual Defences to Nuisance

 Nuisance due to act of others

 Public Good

 Reasonable Care

 Plaintiff coming to nuisance

TRESPASS
Trespass to Person

Page 12 of 49
 TORT
 Includes Assault, Battery, and False Imprisonment.

 Proof of damage not required.

 Defendant has to prove justification.

For tort, FI has to be total and not just partial. It includes unlawful detention.
Trespass to Land

 Could be committed by person himself, or

 Could be committed by some object.

 No liability if committed involuntarily

 It is a wrong against possession rather than against ownership.

 Could be ab-initio or lawful entry could turn into trespass.

Trespass to Goods, Detinue and Conversion (trover).

Trespass to goods is wrongful direct physical interference with the possession
of those goods.

 The chattel need not be in direct possession of the plaintiff nor need to be
in possession of the defendant.

 A mere touching or moving of a plaintiff's chattel without actual damage

is enough to make the defendant liable in trespass to chattel.

 The intention of the defendant may not be to possess or withhold the

chattel.

 A person who has no rightful ownership of a chattel can also sue

provided he is in immediate/actual possession of the chattel in question.
Detinue is the adverse withholding of the goods of another.

 The term detinue is derived from the French word ‘detenue’ which means
‘to hold back’.

 Possession is acquired rightfully but detention of goods is wrongful.

Page 13 of 49
 TORT
 Detinue can be distinguished from trespass from the fact that in a case of
detinue the defendant is in actual possession of the goods while trespass
can be committed to the goods, which are in possession of the plaintiff.

 The defendant has actual possession of the chattel and has 'refused' to
redeliver it to the rightful possessor.

Conversion (aka trover) consists in

 wilfully and without any justification dealing with goods in such a

manner that

 another person who is entitled to immediate use and possession of the

same is deprived of them.

Principles of Conversion

 Wrong intention not necessary for the tort of conversion.

 The defendant has an aim of having immediate possession of the chattel.

 The defendant may possess the plaintiff's chattel temporarily or

permanently.

 It is detinue when the defendant refuses to 'return' the chattel on demand.

However, a temporary possession is sufficient to commit the tort of
conversion.

Essentials of Malicious Prosecution

 Prosecution by the Defendant (i.e. actively instrumental)

 Absence of reasonable and probable cause

 Malice is essential

 Termination of proceeding in favour of defendant

 Damage to plaintiff

Page 14 of 49
 TORT
REMEDIES IN TORTS
Judicial Remedies

 Damages

 Injunctions

 Specific Restitution

Kinds of Damages

 Contemptuous

 Nominal

 Ordinary (aka substantial or compensatory)

 Exemplary (aka punitive or vindictive)

Extra Judicial Remedies

 Expulsion of trespasser

 Re-entry on land

 Re-caption of chattels

 Abatement of Nuisance

 Distress damage feasant

CONSUMER PROTRECTION ACT

Goods means goods as defined in the Sale of Goods Act, 1930;

As per Sale of Goods Act, 1930 goods mean

 every kind of moveable property other than actionable claims and money;

and includes

Page 15 of 49
 TORT
 stock and shares, growing crops, grass, and things attached to or forming
part of the land which are agreed to be severed before sale or under the
contract of sale;

Service means

 service of any description which is made available to potential users and

 includes, but not limited to, the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply of electrical
or other energy, board or lodging or both, housing construction,
entertainment, amusement or the purveying of news or other information,
but does not include the rendering of any service

 free of charge or

 under a contract of personal service;

Complainant means
a consumer; or

 any voluntary consumer association registered under the Companies Act

or under any other law for the time being in force; or

 the Central Government or any State Government;

 one or more consumers, where there are numerous consumers having the
same interest;
in case of dealth of a consumer, his legal heir or representative;

defect means any fault imperfection or shortcoming in the quality, quantity,

potency, purity or standard which is required to be maintained

Page 16 of 49
 TORT
 by or under any law for the time being in force

 or under any contract, express or implied,

or as is claimed by the trader in any manner whatsoever in relation to any

goods;

Spurious goods and services mean such goods and services which are
claimed to be genuine but they are actually not so;
Consumer means any person who

 buys any goods for a consideration which has been

 paid or promised or partly paid and partly promised,

 or under any system of deferred payment

and

 includes any user of such goods other than the person who buys such
goods when such use is made with the approval of such person,

 but does not include a person who obtains such goods for resale or for
any commercial purpose;
or

 hires or avails of any services for a consideration which has been

 paid or promised or partly paid and partly promised,

 or under any system of deferred payment

and

 includes any beneficiary of such services when such services are availed
of with the approval of the first mentioned person

 but does not include a person who avails of such services for any
commercial purpose.
"commercial purpose" does not include use by a person of goods bought and
used by him and services availed by him exclusively for the purposes of
earning his livelihood by means of self-employment;

Page 17 of 49
 TORT

deficiency means any fault imperfection, shortcoming or inadequacy in the

quality, nature and manner of performance which is required to be maintained

 by or under any law for the time being in force or

 has been undertaken to be performed by a person in pursuance of a

contract or otherwise in relation to any service;

restrictive trade practice means a trade practice

 which tends

o to bring about manipulation of price or its conditions of delivery or

o to affect flow of supplies in the market relating to goods or services

 in such a manner as to impose on the consumers unjustified costs or

restrictions
and shall include

 delay beyond the period agreed to by a trader in supply of such goods or

in providing the services which has led or is likely to lead to rise in the
price;

 any trade practice which requires a consumer

o to buy, hire or avail of any goods or, as the case may be, services

o as condition precedent to buying, hiring or availing of other goods or

services;

"unfair trade practice" means a trade practice which,

 for the purpose of promoting the sale, use or supply of any goods or for
the provision of any service,

 adopts any unfair method or unfair or deceptive practice

unfair trade practice includes any of the following practices, namely:

Page 18 of 49
 TORT
 False or misleading representation (oral or written) as to standard, quality,
grade, composition, style or model, need or usefulness or new goods.

 False or misleading representation as to sponsorship, affiliation, approval,

performance, characteristics, accessories, uses, benefits.

 False or misleading representation as to warranty, guarantee not based on

an adequate or proper test.

 False or misleading representation as to warranty or guarantee or

replacement or repair or repeat or continue service until specified result if
no reasonable prospect that the same shall be carried out.

 Materially misleading about the price at goods or services or like goods

or services ordinarily sold or provided.

 False or misleading facts disparaging the goods, services or trade of

another person.

 Publication of any advertisement for bargain price that are not intended to
be offered at the bargain price for reasonable period and quantities.

 The offering of gifts, prizes or other items with the intention of not
providing them as offered

 Creating impression that something is being given or offered free of

charge when it is fully or partly covered by the amount charged in the
whole transaction;

 The conduct of any contest, lottery, game of chance or skill, for the
purpose of promoting, the sale, use or supply of any product or any
business interest;

 Withholding from the participants of any scheme offering gifts, prizes or

other items free of charge, on its closure the information about final
results of the scheme.

 Permitting the sale or supply of goods not complying with prescribed

standards which are necessary to prevent or reduce the risk of injury to
the person using the goods.

Page 19 of 49
 TORT
 Permitting the hoarding, destruction, or refusal to sell or to provide any
service if such act raises or tends to raise or is intended to raise, the cost
of those or other similar goods or services;

 Manufacture of spurious goods or offering such goods for sale

 Adoption of deceptive practices in the provision of services.

"complaint" means any allegation in writing

 an unfair trade practice

 or a restrictive trade practice

 the goods suffer from one or more defects;

 the services suffer from deficiency in any respect;

 a trader or the service provider has charged excessive price

 hazardous goods or service are being offered to the public

Excessive price means price in excess of price

 fixed by or under any law for the time being in force;

 displayed on the goods or any package containing such goods;

 displayed on the price list;

 agreed between the parties;

Hazardous goods or service being offered to public

 in contravention of any standards relating to safety of such goods as

required to be complied with, by or under any law for the time being in
force;

 if the trader/service provider could have known with due diligence that
the goods/services so offered are unsafe to the public;
Page 20 of 49
 TORT

MAJOR CASES
Ashby V White

 Plaintiff was not allowed to vote but his candidate won

 Injuria Sine Damnum applied and held liable, Malice in law

South Wales Miners Federation V Glanmorgan Coal Company

 Against employment contracts, defendants (mine workers' union) took

certain holidays to keep up coal prices.

 While motive was good, the defendants were held liable.

 Wrongful act is not converted into lawful act by good motive.

Bradford Coprn V Pickles

 Defendants excavated his land, which caused the water of adjoining land to
discolor and diminish.

 Motive was to force plaintiff to buy his land at high price.

 While motive was evil, the act was legal, held not liable under tort

Town Area Committee V Prabhu Dayal

 Town Area Committee demolished illegally constructed building.

Page 21 of 49
 TORT
 Merely because some officer had malice against a citizen, this will not
render the action of the authority invalid if it is otherwise in accordance
with law even if motive is evil.

 Law does not take into account all harms suffered by a person which
caused no legal injury. Damage so done is called damnum sine injuria.

 As the plaintiff has failed to prove that he had suffered injuria in the legal
sense, he is not entitled to get any compensation.

Gloucester Grammer School

 Rival school was set up in the neighbourhood

 Fees plummeted, perfectly legal and no tort

 Damnum sine injuria applicable

Mogul Steamship Co V Mcgregor and Co

 Some steamship companies together reduced freight

 Plaintiff was driven out of tea-carrying trade

 Exercise of common right by - Lawful act and lawful means - No tort of

conspiracy committed

 Held that plaintiff had no cause of action

 Damnum sine injuria applicable

Padmavati V Dugganaika

 Two strangers riding in jeep. Bolt of wheel gave away, one died & one
injured

 Volenti non fit injuria applied and held not liable

Wooldrige V Sumner

Page 22 of 49
 TORT
 Photographer taking photos of running horses while standing at arena

 He fell into horse course and got injured by galloping horses

 Volenti non fit injuria applied and held not liable

R v. Williams

 Consent was obtained for surgical procedure and not for sexual intercourse

 Volenti non fit injuria not applicable and held liable

Bowater V Rowley Regis Corp

 Servant compelled to work under dangerous situation even after protest.

 Servant was ordered to use a horse which had tendency to bolt.

 Volenti non fit injuria not applicable and held liable

Smith v. Baker (1891)

 Plaintiff employed with railway contractors for rock cutting drill

 Rocks were being lifted by means of crane. One rock fell & injured
plaintiff

 Held that plaintiff had mere knowledge but no consent.

 The maxim volenti non fit injuria is not applicable.

 The employer has the duty of taking reasonable care to provide proper
appliances, and to maintain them in a proper condition, and so to carry on
his operations as not to subject employees to unnecessary risk.

Dann V Hamilton

 Hamilton driving vehicle heavily drunk. Dann voluntarily travelled in that

vehicle knowing that fact and sustained injuries.

 Hamilton died and action brought against his estate.

Page 23 of 49
 TORT
 Awareness of past negligent acts is no consent for future negligence.

 The maxim volenti non fit injuria is not applicable.

South Indian Industrial Ltd V Alamelu Ammal

 The defendants for their own business, used a method of breaking up cast
iron which consisted of dropping a heavy weight on pieces of iron resting.
A piece of iron hit and killed a workman.

 The defence is put forward that the deceased voluntarily undertook the risk
of this happening to him.

 Plaintiff having mere knowledge of risk is not sufficient. The maxim

volenti non fit injuria is not applicable.
Hayness V Harwood (1935)

 The defendants were the owners of a two-horse van which was being
driven by their servant. The van was left unattended in a crowded street.

 Two boys were coming along, and one of them threw a stone at the horses
which caused them to run away.

 Plaintiff, the policeman, ran and stopped horses. He got injured.

 Defendants were held liable, as it was rescue operation.

 Also held that children do not constitute novus actus.

Dr Baker v T E Hopkins

 Due to employer's negligence, a well was filled with poisonous fumes.

 Two workmen went down the well to reconstruct and died cause of fumes.

 Contrary to the directions of MD, Dr. Baker went to their assistance &
died.

 Defendant was held liable to the doctor, as it was rescue operation.

TC Balkrishnan v. TR Subramania
Page 24 of 49
 TORT
 Explosion caused by igniting explosive-powder filled coconut shells.

 Explosives in an open ground even on festival is a non-natural use of land.

 Held, injury caused by negligence & 'Volenti non fit injuria' not applicable.

Stanley v Powell

 Defendant was shooting birds

 A pellet ricocheted off a tree and hit plaintiff

 The defendant successfully pleaded inevitable accident.

Leigh v Gladstone

 Forcible feeding of a person who was on hunger-strike in a prison served as

a good defence for the tort of battery.

 Small harm inflicted to preserve the plaintiff from greater harm.

 Held not liable as it was necessity.

Nichols V Marsland

 Embankments of lakes gave away due to extraordinary heavy rainfall

 Rush of water washed away bridges owned by plaintiff

 Held not liable as it was vis-major

Kallulal V Hemchand

 Wall of building adjoining highway collapsed due to rainfall

 Building not being maintained properly

 Death of respondent's two children

 Held such rainfall was not extraordinary during rainy season

Page 25 of 49
 TORT

Manindra Nath Mukerjee V Mathuradas Chatturbhuj

 During storm, cinema advertising board fell down and injured the plaintiff.
Held such heavy storms are normal during monsoon season.

 Not an act of god, negligence of defendant.

 Res ipsa loquitor applies

White v. John Warrick & Co. Ltd (1953)

 The plaintiff and defendants entered into an arrangement for hiring of

tricycle for use in the delivery of newspapers by plaintiff.

 Under the agreement, the defendants are not liable for any personal injuries
to the plaintiff when riding a machine provided for him.

 Unless, there be clear words which would also exempt from liability for
negligence, the clause ought not to be construed as giving absolute
exemption to the owners if negligence is proved against them.

 The exemption clause must be construed as exempting the owners only

from their liability in contract, and not from their liability for negligence.

 The claim for negligence in this case is founded on tort and not on contract.

Sheik Hussain Sahib v. Subbayya [1926]

 Madras HC has held that an owner of land on a lower level, to which

surface water from adjacent upper land naturally flows is not entitled to
deal with his lands so as to obstruct the flow of water from the higher land.

Kasia Pillai v. Kumaraswami Pillai [1929]

Page 26 of 49
 TORT
 An agriculturist has been held entitled have customary right to drain off
into the neighbouring lower lands water brought into his land for
agricultural operations.

P. Seetharamayya v. G. Mahalakshmamma (1958)

 Defendant had constructed a bund on her land to preserve it from damage

by flow of water through a breach in the embankment of the vagu (stream).

 As the landholder has the right to protect the land from flood, he should
further enjoy the power of reasonably selecting how to protect the land.

 There has been no obstruction of the vagu (stream). Therefore, this case is a
one of damnum sine injuria, and the plaintiffs must adopt their own
protective measures against the flood water.
Ramchandraram Nagaram Rice & Oil Mills v. Municipal Commissioners

 The Sanitary Inspector detained the canisters of mustard oil and in spite of
the protests by plaintiff that the oil was pure.

 The canisters were carried in the municipal motor truck which was used for
carrying rubbish, road-sweeping and other filthy matters.

 Some commissioners had oil business and that is why the municipal
authorities acted in a capricious, arbitrary and malicious manner in order to
injure the reputation of the plaintiff company and cause loss to it.

 If a person is exercising his rights under a statute he is not liable unless it is

proved that he acted unreasonably or negligently.

 The action of the municipality, if not actuated by malice or as a result of a

conspiracy, was certainly very unreasonable and negligent. There were
other methods available, by which the same object could have been
attained. But the one which the municipality adopted does make them liable
for the loss which the plaintiff suffered. The municipality is liable for the
negligent acts.

Donoghue v. Stevenson - Reasonable Foreseeability of Injury - Negligence

Separate Tort - Neighborhood Principle
Page 27 of 49
 TORT
 Donoghue's friend purchased a bottle of ginger beer. When she refilled her
glass from the bottle there floated out the decomposed remains of a snail.

 She suffered from shock and severe gastro-enteritis as a result of the

nauseating sight and of the impurities she had already consumed.

 A manufacturer of products, which he sells in such a form as to show that

he intends them to reach the ultimate consumer in the form in which they
left him with no reasonable possibility of intermediate examination, and
with the knowledge that the absence of reasonable care in the preparation
or putting up of the products will result in an injury to the consumer’s life
or property, owes a duty to the consumer to take that reasonable care.

 Action in tort is independent of contract.

Municipal Corporation of Delhi v. Subhagwanti [1966 SC]

 Three persons died as a result of the collapse of the Clock Tower situated
opposite the Town Hall in Chandni Chowk, belonging Municipal
Committee of Delhi.

 The doctrine of res ipsa loquitur applies in the present case.

 It is contended that since the defects which led to the collapse of the Clock
Tower were latent the appellant could not be held guilty of negligence.

 It is an indictable offence for an occupier of premises on a highway to let

the premises to get into a dangerous condition owing to non-repair. It is not
necessary in an indictment to aver knowledge or means of knowledge.

 The appellant is guilty of negligence because of the potential danger as the

Clock Tower was not subjected to a careful and systematic inspection
which was the duty of the MCD to carry out.

P. Narasimha Rao v. Gundavarapu Jayaprakasu [1990]

 The E.N.T. Surgeon performed tonsillectomy operation upon the plaintiff

at the Government Hospital, and Anaesthetist administered anaesthetics.

 The first defendant is the Government of AP.

Page 28 of 49
 TORT
 The plaintiff was brilliant youngster aged 17 years. He had a minor
ailment -chronic nasal discharge.

 Due to the recklessness and negligence of the doctors, the plaintiff

suffered respiratory and cardiac arrest during general anaesthesia which
led to cerebral anoxia causing irreparable damage to the brain.

 Held, Special skill must not only exercise reasonable care but measure up
to the standard of proficiency that can be expected from persons of such
profession.

 Both the Surgeon and the Anaesthetist have failed to exercise reasonable
care.

 The Government was held vicariously liable.

Bolam v. Hospital Management Committee

 A situation which involves the use of some special skill or competence,

then the test as to whether there has been negligence or not is not the test
of the man on the top of the profession, because he has not got this
special skill. The test is the standard of the ordinary skilled man
exercising and professing to have that special skill. A man need not
possess the highest expert skill.

 He should have such an awareness as an ordinarily competent practitioner

would have of the deficiencies in his knowledge and the limitations on his
skill. He should be alert to the hazards and risks in any professional task
he undertakes to the extent that other ordinarily competent members of
the profession would be alert.

Malay Kumar Ganguly v Sukumar Mukherjee (2010) SC

 The court found that treatment was not in accordance with medical
protocol.

 SC preferred Bolitho test over Bolam test.

 Duty to disclose to patients about the risk of serious side effects or about
alternative treatments.
Page 29 of 49
 TORT
 If the doctors/hospital knowingly fails to provide some amenities that are
fundamental for patients, it would certainly amount to medical
malpractice.

 The standard of duty to care depends on the position and stature of the
doctors concerned as also the hospital.

 For negligence to amount to an offence the element of mens rea must be

shown to exist. For an act to amount to criminal negligence, the degree of
negligence should be much high degree.

 Held, no criminal negligence only civil negligence.

Jacob Mathew v. State of Punjab (2005) SC

 Patient was admitted as a patient in a private hospital. The oxygen

cylinder was bought and connected to the mouth of patient but it was
found to be empty.

 Son went to the adjoining room and brought a gas cylinder therefrom.
However, there was no arrangement to make the gas cylinder functional
and in-between, 5 to 7 minutes were wasted. By this time, another doctor
came who declared that the patient was dead.

 The essential components of negligence are three: “duty”, “breach” and

“resulting damage”.

 So long as a doctor follows a acceptable practice of that day, he cannot be

held liable for negligence merely because a better alternative course or
method of treatment was also available or simply because a more skilled
doctor would have followed a different procedure.

 A professional may be held liable for negligence - either (1) he was not
possessed of the requisite skill which he professed to have possessed, or,
(2) he did not exercise, with reasonable competence in the given case, the
skill which he possessed.

 The Bolam test for determining medical negligence holds good in its
applicability in India.

Page 30 of 49
 TORT
 For negligence to amount to an criminal offence, the element of mens rea
must be shown to exist and the degree of negligence should be much
higher i.e. gross or of a very high degree. Negligence which is neither
gross nor of a higher degree may provide a ground for action in civil law
but cannot form the basis for criminal prosecution.

 Res ipsa loquitur is only a rule of evidence and operates in the domain of
civil law, specially in cases of torts and helps in determining the onus of
proof in actions relating to negligence. It cannot be pressed in service for
determining per se the liability for negligence within the domain of
criminal law. Res ipsa loquitur has, if at all, a limited application in trial
on a charge of criminal negligence.

 It is a case of non-availability of oxygen cylinder either because of the

hospital having failed to keep available a gas cylinder or because of the
gas cylinder being found empty. Then, probably the hospital may be
liable in civil law but the doctor cannot be proceeded against under
section 304-A IPC on the parameters of the Bolam test.

V Kishan Raa v Nikhil Super Speciality Hospital (2010 SC)

 Patient was treated for typhoid instead of Malaria and he could not be
revived later at another hospital.

 The larger Bench of this Court in Jacob Mathew vs. State of Punjab and
another, Chief Justice Lahoti has accepted Bolam test as correctly laying
down the standards for judging cases of medical negligence, we follow
the same and refuse to depart from it.

 In the present case, the SC held that expert evidence is not required and
compensation was rightly awarded.

Khenyei v. New India Assurance Company Ltd. & Ors. (2015) SC

 In the case of composite negligence, plaintiff/claimant is entitled to sue

both or any one of the joint tortfeasors and to recover the entire
compensation as liability of joint tortfeasors is joint and several.
Page 31 of 49
 TORT
 Determination of the extent of negligence between the joint tortfeasors is
only for the purpose of their inter se liability so that one may recover the
sum from the other after making whole of payment to the
plaintiff/claimant to the extent it has satisfied the liability of the other.

 It would not be appropriate for the court/tribunal to determine the extent

of composite negligence of the drivers of two vehicles in the absence of
impleadment of other joint tort feasors. In such a case, impleaded joint
tort feasor should be left, in case he so desires, to sue the other joint tort
feasor in independent proceedings after passing of the decree or award.

Hambrook v. Stokes Bros. - [1925] Nervous Shock

 The defendants were the owners of a motor lorry, which was left by their
servant unattended and with the engine running, and which ran down a
narrow street.

 The lorry was finally pulled up by running into a house close to where the
plaintiff’s wife happened to be standing.

 The wife died as the result of nervous shock. The shock to his wife was
due either to a reasonable fear of immediate personal injury to herself, or,
alternatively, of injury to her children, and that her death was the result of
the shock.

 The duty of the owner of a motor car in a highway is not a duty to refrain
from inflicting a particular kind of injury upon those who are in the high
way. If so, he would be an insurer. It is a duty to use reasonable care to
avoid injuring those using the highway. It is thus a duty owed to all
wayfarers, whether they are injured or not though damage by reason of
the breach of duty is essential before any wayfarer can sue.

 Held, it is not necessary that shock must be such as arises from

reasonable fear of immediate personal injury to self.

Bourhill v. Young [1943]

Page 32 of 49
 TORT
 The defender was the executor of John Young, who drove a motor-cycle
too fast along an Edinburgh road, overtook a stationary tram-car and
collided with an oncoming motor-car just in front of the tramcar.

 At the time, a fish-wife and eight months pregnant, was standing at the
offside of the tram-car. She could not see the crash, since the tram-car
was in the way, but she heard it. She subsequently saw the blood left on
the road after the removal of the corpse. She sustained a very severe
nervous shock. She later gave birth to a still born child.

 The crude view that the law should take cognizance only of physical
injury resulting from actual impact has been discarded, and it now well
recognized that an action will lie for injury by shock sustained through
the medium of the eye or the ear without direct contact.

 Proper care connotes avoidance of excessive speed, keeping a good look-

out, observing traffic rule and signals and so on. This duty is owed to
persons so placed that they may reasonably by expected to be injured by
the omission to take such care.

 The shock resulting to the appellant, situated as she was, was not within
the area of potential danger which the cyclists should reasonably have had
in view.

 The driver of a car or vehicle, even though careless, is entitled to assume

that the ordinary frequenter of the streets has sufficient fortitude to endure
such incidents as may from time to time by expected to occur to them,
including the noise of a collision and the sight of injury to others.

 The late John Young was under no duty to the appellant to foresee that
his negligence in driving at an excessive speed and consequently colliding
with a motor-car might result in injury to her, for such result could not
reasonably and probably be anticipated. He was, therefore, not guilty of
negligence in a question with the appellant.

McLoughlin v. O’Brian (1983) - Aftermath Doctrine

 The appellant’s husband and three of her children, were in a car. A fourth
child was a passenger in a following motor car and this car did not
become involved in the accident. The car was in collision with a lorry
Page 33 of 49
 TORT
driven by the first respondent and owned by the second respondent. That
lorry had been in collision with another lorry driven by the third
respondent and owned by the fourth respondent. It is admitted that the
accident to the car was caused by the respondent’s negligence.

 As a result of the accident, one child dies almost immediately and others
suffered serious injury. The plaintiff was two miles away. After being
informed of the accident the plaintiff was taken to the hospital where she
saw the injured husband and children and heard about the death of her
daughter. She suffered serious nervous shock.

 Plaintiff's claim for damages was allowed even though she was not at or
near the scene of the accident at the time or shortly afterwards.

 It was held that the nervous shock suffered by her was a reasonable
foreseeable consequence of the defendants' negligence. Aftermath
doctrine as analogy to rescue was used.

 The court held that some limitations should be placed upon the extent of
admissible claims under nervous shock.

 It is necessary to consider three elements inherent in any claim: the class

of persons whose claims should be recognized; the proximity of such
persons to the accident; and the means by which the shock is caused.

 As regards the class of persons, the possible range is between the closest
of family ties- of parent and child, or husband and wife- and the ordinary
bystander.

 Existing law recognizes the claims of the first: it denies that of the second
either on the basis that such persons must be assumed to be possessed of
fortitude sufficient to enable them to endure the calamities of modern life,
or that defendants cannot be expected to compensate the world at large.
The present case falls within the first class.

 The other cases involving less close relationships must be very carefully
scrutinized before they should be admitted. The closer the tie (not merely
in relationship, but in care) the greater the claim for consideration. The
claim, in any case, has to be judged in the light of the other factors, such
as proximity to the scene in time and place, and the nature of the accident.
Page 34 of 49
 TORT
 As regards proximity to the accident, it is obvious that this must be close
in both time and space. It is, after all, the fact and consequence of the
defendant’s negligence that must be proved to have caused the “nervous
shock”. Experience has shown that to insist on direct and immediate sight
or hearing would be impractical and unjust and that under what may be
called the “aftermath doctrine" one who, from close proximity, comes
very soon upon the scene should not be excluded.

 As regards communication, there is no case in which the law has

compensated shock brought about by communication by a third party.

 The defendants duty must depend on reasonable foreseeability and “must

necessarily be adjudicated only upon a case-by-case basis.

Attia v British Gas Plc (1987)

 Damage from nervous shock can be recovered where the plaintiff

witnessed destruction to his property caused by defendant's wrongful act.

Alcock v. Chief Constable of South Yorkshire Police (1991)

 A football match was arranged to be played at the stadium.

 The police force allowed an excessively large number of intending

spectators to enter the ground. In the resulting crush, 95 people were
killed and over 400 physically injured.

 Where son and fiancee were killed, unless rebutted the closest ties of love
and affection had to be presumed from the fact of the particular
relationship. They would be placed in the category to members of which
risk of psychiatric illness was reasonably foreseeable. These three all
watched scenes from the ground on television, but none of these scenes
depicted suffering of recognisable individuals, such being excluded by
the broadcasting code of ethics.

 None of the other plaintiffs who lost relatives sought to establish that they
had relationships of love and affection with a victim comparable to that of
a spouse or parent. In any event only two of them were present in the
ground and the remainder saw the scenes on television.
Page 35 of 49
 TORT
 The viewing of these scenes cannot be equiparated with the viewer being
within "sight or hearing of the event or of its immediate aftermath", nor
can the scenes reasonably be regarded as giving rise to shock, in the sense
of a sudden assault on the nervous system. They were capable of giving
rise to anxiety for the safety of relatives but the viewing of the television
scenes did not create the necessary degree of proximity.

 (1) a claim for damages for psychiatric illness resulting from shock
caused by negligence can be made without the necessity of the plaintiff
establishing that he was himself injured or was in fear of personal injury;
(2) a claim for damages for such illness can be made when the shock
results: (a) from death or injury to the plaintiff's spouse or child or the
fear of such death or injury and (b) the shock has come about through the
sight or hearing of the event, or its immediate aftermath.

 Even though the risk of psychiatric illness is reasonably foreseeable, the

law gives no damages if the psychiatric injury was not induced by shock.
Psychiatric illnesses caused in other ways, such as from the experience of
having to cope with the deprivation consequent upon the death of a loved
one, attracts no damages.

 There were three elements inherent in any claim. (1) the class of persons
whose claims should be recognised; (2) the proximity of such persons to
the accident - in time and space; (3) the means by which the shock has
been caused.

 None of the plaintiffs satisfied both the tests of reasonable foreseeability

and of proximity. All claims dismissed.

Page v Smith (1995)

 The plaintiff, Mr Page, was involved in a minor car accident, and was
physically unhurt in the collision. However the crash resulted in a
recurrence of chronic fatigue syndrome from which he had suffered for
20 years but was then in remission. The defendant admitted that he had
been negligent, but said he was not liable for the psychiatric damage as it
was unforeseeable and therefore not recoverable as a head of damage.

 It was held that Mr. Page was a primary victim. Therefore, it did not have

Page 36 of 49
 TORT
to be shown that nervous shock or psychiatric injury needed to be a
foreseeable consequence of what happened. The plaintiff only had to
show that a personal injury was a foreseeable consequence.

 In the case of direct victims, the test should be applied: "Could the
defendant reasonably foresee that his conduct would expose the plaintiff
to the risk of personal injury, psychological or physical?" If the answer
was yes, it would be irrelevant that the plaintiff had special sensitivities -
the rule in other nervous shock cases that the plaintiff should be of
reasonable fortitude was irrelevant. This is based on the eggshell skull
rule, that is, one "takes the plaintiff as one finds him".

REMOTENESS OF DAMAGES
Re Polemis case (1921) - Direct Consequence Test

 The charterers had employed stevedores to unload the cargo. One of them
dropped a heavy plank into the hold, which was full of petrol vapour. On
impact, the plank caused a spark, the spark ignited the vapour, and the
ship was destroyed.

 It was held that the defendant was liable for even damage caused by fire.
To determine whether an act is negligent, it is relevant to determine
whether any reasonable person would foresee that the act would cause
damage. If the act would or might probably cause damage, the fact that
the damage it in fact causes is not the exact kind of damage one would
expect is immaterial, so long as the damage is in fact directly traceable to
the negligent act, and not due to the operation of independent causes
having no connection with the negligent act, except that they could not
avoid its results. Once the act is negligent, the fact that its exact operation
was not foreseen is immaterial.

 The Court of Appeal held that a defendant can be deemed liable for all
consequences flowing from his negligent conduct regardless of how
unforeseeable such consequences are. The case is an example of strict
liability, a concept which has generally fallen out of favour with the
common law courts. The case may now be considered "bad law", having

Page 37 of 49
 TORT
been superseded by The Wagon Mound case.

The Wagon Mound Case (1961) - Reasonable Foreseeability Test

 A large quantity of oil carelessly spilled from The Wagon Mound during
bunkering operations in Sydney Harbour. This oil spread to the plaintiff’s
wharf about 200 yards away, where a ship was being repaired. A drop of
molten metal fell on the floating oil; this ignited the oil, and the plaintiff’s
wharf was consumed by fire.

 The Privy Council found in favour of the defendant, agreeing with the
expert witness who provided evidence that the defendant, in spite of the
furnace oil being innately flammable, could not reasonably expect it to
burn on water.

 It was held that Re Polemis was no more good law. The only test
applicable was foreseeability of the damage complained of which in this
case was damage caused by fire.

 A man should not be held liable for damage unpredictable by a reasonable

man just because it was “direct" or "natural", equally it would be wrong
that he should escape liability, however “indirect” the damage, if he
foresaw or could reasonably foresee the intervening events which led to
its being done. Thus foreseeability becomes the effective test.

Hughes v. Lord Advocate (1963)

 A manhole in a street was opened for the purpose of maintaining

underground telephone equipment. It was covered with a tent and, in the
evening, left by the workmen unguarded but surrounded by warning
paraffin lamps. An eight-year-old boy entered the tent and knocked or
lowered one of the lamps into the hole. An explosion occurred causing
him to fall into the hole and to be severely burned.

 The workmen were in fault in leaving this open manhole unattended and
it is clear that if they had done as they ought to have done this accident
would not have happened.

 A defender is liable, although the damage may be a good deal greater in

Page 38 of 49
 TORT
extent than was foreseeable. He can only escape liability if the damage
can be regarded as differing in kind from what was foreseeable.

 This accident was caused by a known source of danger, but caused in a

way which could not have been foreseen, and that affords no defence.

NO FAULT LIABILITY - STRICT LIABILITY

Rylands v. Fletcher (1868)

 The defendants constructed a reservoir on his land. Unknown to the

defendants, the plaintiff, who had a mineral lease, had carried his
workings to a point not far distant, though separated by the land of third
parties. In the course of construction of reservoir, the engineers came
across some disused mine shafts and did not seal them properly, with the
result that when the completed reservoir was filled, water flowed down
those shafts and into the plaintiff’s coal-mine, causing damages.

 The defendants might lawfully have used that land for any purpose in the
ordinary course of the enjoyment of land and if there had been any
accumulation of water naturally either on the surface or underground, and
that accumulation of water had passed off into the plaintiff's land, the
plaintiff could not have complained that that damage had taken place.

 The person who, for his own purposes, brings on his land and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at
his peril; and if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape.

Page 39 of 49
 TORT
 He can excuse himself by showing that the escape was owing to the
plaintiff’s default; or, perhaps, that the escape was the consequence of vis
major, or the act of God; but as nothing of this sort exists here.

 The person who has brought something on his own property (which was
not naturally there), harmless to others so long as it is confined to his own
property, but which he knows will be mischievous if it gets on his
neighbour’s, should be obliged to make good the damage which ensues if
he does not succeed in confining it to his own property.

 But for his act in bringing it there no mischief could have accrued, and it
seems but just that he should at his peril keep it there, so that no mischief
may accrue, or answer for the natural and anticipated consequence. And
upon authority, this we think is established to be the law, whether the
things so brought be beasts, or water, or filth, or stenches.

NO FAULT LIABILITY - ABSOLUTE LIABILITY

M.C. Mehta v. Union of India (1987) SC - Oleum Gas Leak Case

 The rule in Rylands v. Fletcher was evolved in the year 1866. The
liability under this rule is strict and it is no defence that the thing escaped
without that person’s wilful act, default or neglect or even that he had no
knowledge of its existence.

 Where an enterprise is engaged in a hazardous or inherently dangerous

activity and harm results to anyone on account of an accident in the
operation of such hazardous or inherently dangerous activity resulting, for
example, in escape of toxic gas the enterprise is strictly and absolutely
liable to compensate all those who are affected by the accident and such
liability is not subject to any of the exceptions which operate vis-a-vis the
tortious principle of strict liability under the rule in Rylands v.Fletcher.

 The measure of compensation must be correlated to the magnitude and

capacity of the enterprise because such compensation must have a
deterrent effect. The larger and more prosperous the enterprise, greater
must be the amount of compensation payable by it for the harm caused on
account of an accident in the carrying on of the hazardous or inherently
dangerous activity by the enterprise.

Page 40 of 49
 TORT

M.P. Electricity Board v. Shail Kumar [2002 SC]

 It is no defence that somebody committed mischief by siphoning energy

and that the electrocution was from such diverted line. It is the look out of
the managers of the supply system to prevent such pilferage by installing
necessary devices. At any rate, if any live wire got snapped and fell on
the public road the electric current thereon should automatically have
been disrupted. Authorities manning such dangerous commodities have
extra duty to chalk out measures to prevent such mishaps.

 The Board made an endeavour to rely on the exception to the rule of strict
liability (Rylands v. Fletcher) being “an act of stranger”. The said
exception is not available to the Board as the act attributed to the third
respondent should reasonably have been anticipated or at any rate its
consequences should been prevented by the Board.
VICARIOUS LIABLITIY
State of Rajasthan v. Vidhyawati [1962 SC]

 A Govt jeep car while being taken from the workshop after repairs to the
collector's bunglow caused an accident due to rashness and negligence of
the driver resulting in death of a pedestrian.

 The State should be as much liable for tort in respect of a tortious act
committed by its servant within the scope of his employment and
functioning as such, as any other employer.

 When the Government employee was driving the jeep car from the
workshop to the Collector’s residence for the Collector’s use, he was
employed on a task or an undertaking which cannot be said to be
referable to, or ultimately based on, the delegation of sovereign or
governmental powers of the State.

Kasturi Lal Ralia Ram Jain v. State of U.P. [1965 SC]

 The appellant is a firm which deals in bullion. One partner arrived at

Meerut by train about midnight. There he was taken into custody by three
constables. His belongings were searched and he was taken to police
Page 41 of 49
 TORT
station. He was detained and his gold and silver were seized. Later he was
released on bail, and some time thereafter the silver was returned to him.
The gold was misappropriated by the Head Constable who fled to
Pakistan.

 He filed the present suit against the respondent in which he claimed a

decree that the gold seized from him should either be returned to him, or,
in the alternative, its value should be ordered to be paid to him.

 In the present case, the act of negligence was committed by the police
officers in exercise of their statutory powers. They are powers which can
be properly characterised as sovereign powers; and it held that the present
claim is not sustainable.

N. Nagendra Rao & Co. v. State of A.P. (1994) SC

 Socks of fertilisers, foodgrains and even non-essential goods were seized.

He was later found not guilty of black-marketing or adulteration.
Meanwhile the stock has been spoilt both in quantity and quality.

 SC held that when due to negligence of the officers, a citizen suffers any
damage the state will be liable to pay compensation and the principle of
sovereign immunity will not absolve it from liability.

 Barring functions such as administration of justice, maintenance of law

and order and repression of crime etc. which are among the primary and
inalienable functions of a constitutional Government, the State cannot
claim any immunity.

 Ratio of Kasturi Lal is available to those rare and limited cases where the
statutory authority acts as a delegate of such function for which it cannot
be sued in court of law. In Kasturi Lal case the property for damages of
which the suit was filed was seized by the police officers while exercising
the power of arrest under CrPC. The power to search and apprehend a
suspect under CrPC is one of the inalienable powers of State. It was for
this reason that the principle of sovereign immunity was extended by the

Page 42 of 49
 TORT
Court. But the same principle would not be available in large number of
other activities carried on by the State by enacting a law.

Chairman Railway Board v. Chandrima Das (2000) SC

 Mrs. Chandrima Das, a practising advocate of the Calcutta High Court,

filed a petition under Article 226 of the Constitution against the
Chairman, Railway Board; claiming compensation for a Bangladeshi
national who was gang-raped by many including employees of the
Railways in a room at Yatri Niwas at Howrah Station.

 It was held that this petition was filed in public interest which could
legally be filed by the respondent.

 The rights under Articles 20, 21 and 22 are available not only to
“citizens” but also to “persons” which would include “non-citizens”.

 This Court in Bodhisattwa case has already held that “rape” amounts to
violation of the fundamental right guaranteed to a woman under Article
21 of the Constitution.

 The victim was entitled to be treated with dignity and was also entitled to
the protection of her person as guaranteed under Article 21 of the
Constitution. As a national of another country, she could not be subjected
to a treatment which was below dignity nor could she be subjected to
physical violence at the hands of government employees who outraged
her modesty. The right available to her under Article 21 was thus
violated. Consequently, the State was under a constitutional liability to
pay compensation to her.

 The theory of sovereign power which was propounded in Kasturi Lal

case has yielded to new theories and is no longer available in a Welfare
State. It may be pointed out that functions of the Government in a
Welfare State are manifold, all of which cannot be said to be the activities
relating to exercise of sovereign powers.

 Running of the Railways is a commercial activity. Establishing the Yatri

Niwas at various railway stations to provide lodging and boarding

Page 43 of 49
 TORT
facilities to passengers on payment of charges is a part of the commercial
activity of the Union of India and this activity cannot be equated with the
exercise of sovereign power.

 Held, compensation shall be paid.

DEFAMATION

Tushar Kanti Ghose v. Bina Bhowmick (1953)

 A well- established newspaper like the “Amrit Bazar Patrika” published

defamatory article.

 Held that because of the very nature of the impugned statements, neither
the plea of fair comment nor the plea of qualified privilege can be
claimed in respect of them. Even if the plea were available, they have
been displaced by proof of malice.
Rustom K. Karanjia v. Krishnaraj M.D. Thackersey [1970]

 Defendant is the Editor of the “Blitz” and has accepted responsibility for
the Article.

 That the Article was defamatory was not seriously disputed. The principal
defences offered were (i) justification (ii) fair comment on a matter of
public interest; and (iii) qualified privilege. It was also contended that the
damages claimed were excessive and disproportionate.

 Having, therefore given our careful consideration to the article and the
aspect of malice put before us by learned counsel for the plaintiff we are
satisfied that the whole article was conceived in express malice and
therefore, no qualified privilege can at all be claimed.

CONSUMER PROTECTION
Faqir Chand Gulati v. Uppal Agencies Private Limited (2008) SC

 An agreement between the owner of a land and a builder, for construction

of apartments and sale of those apartments so as to share the profits in a

Page 44 of 49
 TORT
particular ratio may be a joint venture, if the agreement discloses an intent
that both parties shall exercise joint control over the construction/
development and be accountable to each other for their respective acts
with reference to the project.

 If the landowner has no control or participation in the management of the

venture. The requirement of each joint venturer being the principal as
well as agent of the other party is also significantly absent. Such an
agreement is not a joint venture, as understood in law.

 The title or caption or the nomenclature of the instrument/document is not

determinative of the nature and character of the instrument/document,
though the name may usually give some indication of the nature of the
document. The nature and true purpose of a document has to be
determined with reference to the terms of the document, which express
the intention of the parties.

 Held, the landowner is consumer.

Indian Medical Association v. V. P. Shantha [1996 SC]

 Service rendered to a patient by a medical practitioner (except where the

doctor renders service free of charge to every patient or under a contract
of personal service), by way of consultation, diagnosis and treatment,
both medicinal and surgical, would fall within the ambit of ‘service’ as
defined in section 2(1)(o) of the Act.

 The fact that medical practitioners belong to the medical profession and
are subject to the disciplinary control of the Medical Council would not
exclude the services rendered by them from the ambit of the Act.

 A “contract of personal service” has to be distinguished from a “contract

for personal services”. In the absence of a relationship of master and
servant between the patient and medical practitioner, the service rendered
by a medical practitioner to the patient cannot be regarded as service
rendered under a ‘contract of personal service’. Such service is service
rendered under a “contract for personal services” and is not covered by
exclusionary clause of the definition of ‘service’.

 The expression “contract of personal service” cannot be confined to

Page 45 of 49
 TORT
contracts for employment of domestic servants only and the said
expression would include the employment of a medical officer for the
purpose of rendering medical service to the employer.

 Service rendered free of charge at a hospital/nursing home where such

services are rendered free of charge to everybody, would not be ‘service’.
The payment of a token amount for registration purpose only at the
hospital/nursing home would not alter the position.

 Service rendered at a hospital/nursing home where charges are required to

be paid by the persons availing of such services falls within the purview
of the expression ‘service’.

 Service rendered at hospital/nursing home where charges are required to

be paid by persons who are in a position to pay and persons who cannot
afford to pay are rendered service free of charge would fall within the
ambit of the expression ‘service’ irrespective of the fact that the service is
rendered free of charge to persons who are not in a position to pay for
such services. Free service, would also be ‘service’ and the recipient a
‘consumer’ under the Act.

 Service rendered by a medical practitioner or hospital/nursing home

cannot be regarded as service rendered free of charge, if the person
availing of the service has taken an insurance policy for medical care
where under the charges are borne by the insurance company and such
service would fall within the ambit of ‘service’.

 Similarly, where, as a part of the conditions of service, the employer

bears the expenses of medical treatment of an employee and his family
members dependent on him, the service rendered to such an employee
and his family members by a medical practitioner or a hospital/nursing
home would not be free of charge and would constitute ‘service’.

Laxmi Engineering Works vs P.S.G. Industrial Institute, 1995 SC

 Laxmi Engineering Works, is a proprietary concern - registered as a small

scale industry. The appellant placed an order with the respondent-P.S.G.
industrial institute for supply of PSG 450 CNC Universal Turing Central
Machine. The respondent supplied the machinery six months late and also

Page 46 of 49
 TORT
that supplied a defective machine.

 It was held that

o the explanation added by The Amendment Act 1993 is clarificatory in

nature and applies to all pending proceedings.
o Whether the purpose for which a person has bought goods is a
"commercial purpose" within the meaning of the definition of
expression "consumer" in Section 2(d) of the Act is always a question
of fact to be decided in the facts and circumstances of each case.
o A person who buys goods and use them himself, exclusively for the
purpose of earning his livelihood, by means of self employment is
within the definition of the expression "consumer".

 So far as the present case is concerned we must hold having regard to the
nature and character of the machine and the material on record that it is
not goods which the appellant purchased for use by himself exclusively
for the purpose of earning his livelihood by means of self employment, as
explained hereinabove.

Lucknow Development Authority v M.K. Gupta (1994 SC)

 In absence of any indication, express or implied there is no reason to hold

that authorities created by the statute are beyond purview of the
Consumer Act.

 The Lucknow Development Authority shall fix the responsibility of the

officers who were responsible for causing harassment and agony to the
respondent within a period of six months from the date a copy of this
order is produced or served on it. The amount of compensation of Rs
10,000 awarded by the Commission for mental harassment shall be
recovered from such officers proportionately from their salary.

State of AP v. Govardhanlal Pitti (2003 SC)

 In this case, the state was a tenant of premises (an old school building)
belonging to private party. An eviction order was passed against state and

Page 47 of 49
 TORT
the state gave an undertaking to vacate. Soon thereafter, the state initiated
proceedings under Land Acquisition Act for acquisition of premises. It
was held that the govt's action cannot be said to be vitiated by malice in
law. There existed genuine public purpose of fulfilling the educational
needs.

Davies v Mann
 Davies v. Mann was an English case that contained the first formulation
of the "last clear chance" doctrine in negligence law.

 The case concerned an accident in which a donkey, belonging to the

plaintiff, was killed after a wagon, driven by the defendant, collided with
it. The plaintiff had left the donkey on the side of the road while it was
fettered and so it was contributory negligence. The plaintiff was still
allowed recovery, however. The court ruled that the defendant had an
opportunity to avoid the accident by driving with reasonable care (as
opposed to driving too quickly at a "smartish pace") so it was the
defendant's negligence that really caused the accident.

 The doctrine became known as the "last clear chance" or "Last

Opportunity rule" doctrine. If the defendant did not take the opportunity
of using reasonable care to take the last clear chance to avoid injury, the
contributory negligence of the plaintiff is not a bar to recovery.

Page 48 of 49
 TORT
MAXIMS IN TORT

Ubi jus ibi remedium - where there is a right there is a remedy

Injuria sine damnum - legal injury without causing any damage

Damnum sine injuria - damage without causing any legal injury

Volenti non fit injuria - to a willing person, injury is not done

Vis major - Act of God

De minimis non curat lex - the law does not account of trifles

Audi Alteram Partem - let the other party be heard

Res Ipsa Loquitur - things speak for itself

Causa causans - cause of injury

Causa sine qua non - cause without any other cause

Novus actus interveniens - new intervening act

Restitutio in integrum - restoration to original condition

Caveat emptor - Let the buyer beware

Caveat venditor - Let the seller beware

Distress damage feasant - self-help legal remedy whereby a person who is in

possession of land may impound a chattel which is wrongfully on that land to
secure the payment of compensation for damage caused by it

Salus populi suprema lex - The welfare of the people is supreme law

Page 49 of 49