MODULE 5 – VICARIOUS LIABILITY CASE BRIEFS

A.H. Khodwa v. State of Maharashtra [(1996) ACJ 505 SC]

The doctor in a Government hospital, while performing sterilization operation of a lady patient,
left a mop inside the abdomen of the patient. As a consequence of that, she developed peritonitis
and that resulted in her death. Running a hospital was held to be a non -sovereign function and
the State was held vicariously liable for the same.

Basava Kom Dyamgonde Patil v State of Mysore [AIR 1977 SC 1749]

In Smt. Basava v. State of Mysore, some ornaments and cash belonging to the appellant had
been stolen. Some of these articles were recovered by the police and kept in the police custody
under the orders of a Magistrate. They were kept in a trunk (box) from which they were found
missing. It was held by the Supreme Court that the State could not prove that the property in
question had been lost in spite of due care and caution taken by the State, or due to
circumstances beyond its control, and therefore, the appellant was entitled to receive Rs.
10,000/-, which amount was equivalent to the property lost.

Beard v London General Omnibus Co [(1900) 2 QB 530]

In Beard v. London General Omnibus Co., at the end of the journey, the driver of a bus went
to take his dinner. During his temporary absence the conductor drove the bus in order to turn it
round to make it ready for the next journey and negligently caused an accident whereby the
plaintiff was injured. Since driving was not the kind of the act which the condu ctor was
authorized to do, the conductor was acting out of the course of employment for which the
master was held not liable.

Bhim Singh v State of J&K [1985] 4 SCC 677

In Bhim Singh v. State of J. & K., the petitioner, an M.L.A. of J & K. Assembly, was
wrongfully detained by the police while he was going to attend the Assembly session. He was
not produced before the Magistrate within requisite period. As a consequence of this, the
member was deprived of his constitutional right to attend the Assembly session. There was also
violation of fundamental right to personal liberty guaranteed under Article 21 of the
Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been
released, but by way of consequential relief, exemplary damages amounting to Rs. 50,000 were
awarded to him. The Supreme Court recognized the liability of the State to pay compensation,
when the right to life and personal liberty as guaranteed under Article 21 of the Constitution
had been violated by the officials of the State.

Kasturilal Ralia Ram Jain v State of Uttar Pradesh AIR 1965 SC 1039

If a tortious act is committed by a public servant and it gives rise to a claim for damages, the
question to ask is: was the tortious act committed by the public servant in discharge of statutory
functions which are referable to, and ultimately based on, the delegation of the sovereign
powers of the State to such public servant? If the answer is in the affirmative, the action for
damages will not lie. On the other hand, if the tortious act has been committed by a public
servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign
power, an action for damages will lie. In the second category of cases, the act of such public
servant is alike to an act of a servant who might have been employed by a private individual
for the same purpose. In this case, a partner of the firm of jewellers in Amritsar, Kasturilal
Ralia Ram Jain, happened to go to Meerut (in U.P.) reaching there by a train in the midnight.
He was carrying a lot of gold and silver with him. The police constables, on the round in the
market through which he was passing, suspected that he was in the possession of stolen
property. He was taken to the police station. He, with his belongin gs, was kept in the police
custody under the provisions of the Cr. P.C. Next day, he was released on bail and sometime
thereafter the silver was returned to him. The gold was kept in the police Malkhana, and the
same was then misappropriated by the Head Constable, Mohammad Amir, who thereafter fled
to Pakistan. The plaintiff brought an action against the State of U.P. claiming either the return
of the 103 tolas of gold, or compensation of Rs. 11,000/- in lieu thereof.

It was found that the police officers f ailed to observe the provisions of the U.P. Police
Regulations in taking care of the gold seized. The Supreme Court held that since the negligence
of the police officers was in the exercise of statutory powers which can also be characterised
as sovereign powers, the State was not liable for the same.

Kumari (Smt) v State of Tamil Nadu [1992] 2 SCC 223

In Smt. Kumari v. State of Tamil Nadu,1 six-year-old son of the appellant died as a result of
falling in a ten feet deep sewerage tank in the city of Madras. The Supreme Court issued a
direction to the State of Tamil Nadu to pay compensation of Rs. 50,000/- to the appellant with
interest @ 12% p.a. from Jan. 1, 1990 till the date of payment. The Supreme Court further held
that it was open to the State of Tamil Nadu to recover the said amount or any part thereof from
the local authority or any other person who. might be responsible of keeping the sewerage tank
open.

It was held that the doctrine of sovereign immunity did not apply as there was violation of
fundamental right to life. The State Government was held to be vicariously liable and was
required to pay compensation to the plaintiff.

Lloyd v Grace, Smith & Co (1912) AC 716

When the principal expressly or impliedly authorizes some act to be done, he is liab le for such
an act of the agent if the same has been done in the course of performance of his duties as an
agent. In Lloyd v. Grace, Smith & Co., the managing clerk of a firm of solicitors (defendants),
while acting in the ordinary course of his business, committed a fraud against a lady client.
Although the agent here had acted solely for his own personal benefit, the defendants were held
liable because the agent was acting in the course of performance of his duties as an agent.

Lucknow Development Authority v MK Gupta [1994] 1 SCC 243

The Supreme Court in Lucknow Development Authority case approved "Misfeasance in public
office" as a part of the law of Tort. Public servants may be held liable in damages for malicious,
deliberate or injurious wrongdoing. If a public servant abuses his office either by an act of
omission or commission and the consequence of that is injury to an individual or loss of public
property, all action may be maintained against such public servant. In the instant case, the
petitioner got his pregnant wife admitted in the Government Hospital who gave birth to twins.
But excessive bleeding after delivery could not be controlled on account of negligence of the
doctors and she died. The Deputy Director, who conducted the inquiry , opined in his report
that the wife of the petitioner died on account of negligence of the doctors who after repeated
requests did not attend the patient.

Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd (1947) AC 1

In Mersey Docks and Harbour Board v. Coggins & Criffiths (Liverpool) Ltd., a harbour board,
who owned a number of mobile cranes each driven by a skilled driver, as a regular part of their
business, let out a mobile crane along with a driver to certain stevedores for loading a ship.
Due to the negligence of the driver, while loading a ship, X was injured. The harbour board,
who was the permanent employer was held liable. The stevedores were held not liable because
they had simply the power to tell the driver what particular cargo was to be operated. When a
master lends the services of his servant to another person and the servant commits a tort, the
question which arises is whether the permanent master would be liable for the servant's act or
the person who is making temporary use of the servant's services.

N Nagendra Rao v State of AP AIR 1994 SC 2663

In N. Nagendra Rao & Co. v. State of A.P. the Supreme Court considered the question of
vicarious liability of the Government for the negligence of its servants, it noted the earlier
Supreme Court Decisions in Vidyawati's, And Kasturi Lal's cases, recommendations of the
Law Commission in its First Report for statutorily recognizing the liability of the State as had
been done in England through the Grown Proceedings Act, 1947 and in U. S.A. through the
Federal Torts Claims Act, 1946. It, therefore, held that the doctrine of sovereign immunity has
no relevance in the present day.

Peninsular and Oriental Steam Navigation Co v Secretary of State for India (1861) 5 Bom
HCR App 1
The plaintiff's servant was travelling in a horse driven carriage and was passing by the
Kidderpore Dockyard in Calcutta, which is the government property. Due to negligence on the
part of the defendant's servants, a heavy piece of iron, which they were carrying for the repair
of a steamer, fell and its clang frightened the horse. The horse rushed forward against the iron
and was injured. The plaintiff filed a suit against the Secretary of State for India in Council for
the damage which was caused due to the negligence of the servants employed by the
Government of India. The Court tried to look to the liability of the East India Company. A
distinction was drawn between the sovereign and non-sovereign functions of the East India
Company. It was held that, if the act was done in the exercise of sovereign functions, the East
India Company would not have been liable, but if the function was a non -sovereign one, i.e.,
which could have been performed by a private individual without any delegation of power by
the Government, the Company would have been liable. Maintenance of the dockyard was
considered to be a non-sovereign function and, as such, the Government was held liable.
Peoples’ Union for Democratic Rights v State of Bihar AIR 1987 SC 355

Sovereign immunity is subject to Fundamental Rights

In PUDR v. State of Bihar, there was police firing without any warning and justification on a
group of poor peasants and landless persons, who had collected for a peaceful meeting. At least
21 persons had died and many more were injured. The Supreme Court held that the State was
liable to pay compensation of Rs. 20,000 for every case of death, and Rs. 5,000 for every
injured person

➢ SAHELI, A WOMEN’S RESOURCES CENTRE V COMMISSIONER OF POLICE

DELHI POLICE HEADQUARTERS [1990] 1 SCC 422.

In the case of SAHELI the Supreme Court in a public interest writ petition allowed Rs.
75,000 as damages against the Delhi administration to the mother of a child of nine years
who died due to beating and assault by a Delhi police officer.

➢ SATYA WATI DEVI V UNION OF INDIA, AIR 1967 DELHI 98.

In Satyawati Devi v. Union of India, some Air Force personnel constituting hockey and
basketball teams were carried by an air force vehicle and due to the negligence of the driver,
death was caused of the plaintiff's husband. The Delhi High Court rejected the plea taken
by the Govt. that such physical exercise was necessary to keep the army personnel trim in
proper shape and such an act should be considered to be a sovereign act. It was held that
since the act of carrying teams to play matches could be performed by a private individual,
it was not a sovereign function and, as such, the Government was liable.

➢ SEBASTIAN M HONGRAY V UNION OF INDIA, [1984] 1 SCR 904.

Two persons were taken into custody by Army authorities in Manipur but were not
produced in obedience to a writ of habeas corpus and it was held that those persons must
have met an unnatural death while in Army custody, the Supreme Court directed the Union
of India to pay exemplary costs of rupees one lac each to the wives of those persons.
 Although the word compensation is not used in the decision, it is obvious that the Court
awarded compensation 33 to the dependants against the Union of India for the action of the
army authorities in murdering the two persons.

➢ SECRETARY OF STATE FOR INDIA V HARI BHANJI ILR (1882) 5 MAD 273.

In this case a suit was filed to recover the excess excise duty collected by the state on a
consignment of salt. Rejecting the pleas of immunity, the Madras High Courts held that no
immunity attaches to actions done under the colour of municipal laws as the immunity of
east India Company extended only to acts of state. Therefore, it was stated that towards its
own subjects, the State should be liable just like an ordinary employer.

➢ SHYAM SUNDER V STATE OF RAJASTHAN AIR 1964 SC 890.

A truck belonging to the State of Rajasthan had hardly gone a distance of 4 miles on a
particular day that its engine caught fire. One of the occupants, Naveneetlal jumped out to
save himself from the fire, he struck against a stone lying by the side of the road and died
instantaneously. It was found that a day earlier, the truck took 9 hours to cover a distance
of 70 miles because the radiator was getting heated frequently and the driver was pouring
water after every 6 or 7 miles of journey. It was held that since generally an ordinary
roadworthy vehicle would not catch fire, there was a presumption of negligence on the part
of the driver in running the vehicle on the road. As the driver could not explain the cause
of the accident which was within his exclusive knowledge, the defendants were held liable.

➢ SITARAM V SANTANUPRASAD AIR 1966 SC 1697.

Sitaram, who was the owner of a car, entrusted the same to one Mohammad Yakub for
plying it as a taxi in Ahmedabad. Mohammad Yakub, who was in sole charge of the taxi,
employed a cleaner. He trained the cleaner in driving the taxi. On April 11, 1940, he gave
the taxi to the cleaner for taking the driving test and obtaining the driver's licence. While
taking the test, the cleaner took a sudden turn without giving any signal, caused an accident
 and seriously injured the plaintiff's leg. The question was, could Sitaram, the owner of the
car, be liable in this case? It was held that as there was nothing to show that the owner had
either permitted the cleaner to drive the taxi and take such driving test or had authorized
the driver to employ strangers to drive or take driving tests, the cleaner at the time of the
accident, was not doing the master's work, nor was the driver while lending acting in the
master's business, the owner was, therefore, not liable.

➢ STATE BANK OF INDIA V SHYAMA DEVI AIR 1978 SC 1263.

The plaintiff who had a Savings Bank account with the Bank, handed over a cheque and
cash to an employee of the Bank who was a neighbour and friend of the plaintiff's husband
with a letter of instructions and pass-book for being credited to her account. The employee
misappropriated the amount and made false entries in the pass-book. The employee was
not in charge of the Savings Bank counter and the cheque and cash were not handed over
to the counter-clerk concerned. The employee's fraud was, therefore, not in the course of
his employment and all that could be said was that “the fact of his being an employee of
the Bank” gave him an opportunity to commit the fraud. On these facts the Supreme Court
held that the Bank was not liable for the fraud of the employee.

➢ STATE OF ANDHRA PRADE SH V CHALLA RAMK RISHNA REDDY AIR 2000

SC 2083.

A prisoner in jail as under trial died as a bomb was thrown by some miscreants in the cell
where he was lodged. In a suit by the dependants of the deceased against the state it was
found that the jail authorities were negligent in properly guarding the jail in spite of warning
that some miscreants were likely to make an attempt on the life of the prisoner. On these
facts the doctrine of sovereign immunity was held to have no application as this was a case
of a violation of the fundamental rights under Article 21 and it made no difference that the
claim was laid through a suit and not under Article 32 or 226.

➢ STATE OF GUJARAT V MEMON MOHAMED AIR 1967 SC 1885.

Certain goods seized under the Sea Customs Act were not properly kept and were disposed
of by order of a Magistrate. On a suit for the value of the goods against the State, the
 Supreme Court held that when the seizure was illegal there arose bailment and a statutory
obligation to return the goods and the suit was maintainable.

➢ STATE OF MAHARASHTRA V RAVIKANT S PATIL [1991] 2 SCC 373.

In a case of illegal handcuffing and parading a person by a police sub-inspector the State
was directed to pay R s. 10,000 as compensation.

➢ STATE OF RAJASTHAN V VIDYAWATI AIR 1962 SC 933.

In that case the claim for damages was made by dependants of a person who died in an
accident caused by the negligence of the driver of a jeep maintained by the Government for
official use of the Collector of Udaipur while it was being brought back from the workshop
after repairs. The Rajasthan High Court took the view that the State was liable for “the State
is in no better position in so far as it supplies cars and keeps drivers for its civil service”.

➢ UNION OF INDIA V SMT JASSO AIR 1962 PUNJAB 315.

Carrying of coal for heating rooms has been held to be a non-sovereign function as the
same could be performed even by a private individual and the Govt. has, therefore, been
held liable for the negligence of the driver of a military truck which carried such coal from
the depot to the Army General Headquarters' building in Simla.

➢ UNION OF INDIA V SUGRABAI AIR 1969 BOM 13

It has been held by the Bombay High Court in Union of India v. Sugrabai5 that transporting
of a machine and other equipment to a military training school is also a function which
could be equally performed by a private individual and, therefore, the Govt. is liable for the
negligence of the military driver engaged in carrying the same.
 MODULE 6 – STRICT & ABSOLUTE LIABILITY

Strict Liability Case

1) Glasgow Corporation v Taylor [1922] 1 AC 44

The father of a seven-year-old boy sued the Glasgow Corporation for damages following the
death of his son who died as a result of eating berries from a poisonous plant that was growing
in the Botanic Gardens in Glasgow.

whether the defendant was negligent in the death of the claimant. It was particularly important
to understand the steps that the defendant had taken to prevent the danger caused by the fact
that the poisonous berries in question would be particularly attractive to young children.

The court held that the Glasgow Corporation was liable in this instance. They h ad permitted
children to go on to the land and it is understandable that the berries would have appealed to
visiting children, thus representing a danger.

2) NitinWalia v. Union of India AIR 2001 Delhi 140

Torts-Negligence-compensation-child of three years age visiting the zoo-Tigress inside bars

suddenly grabbed his hand through railing and pulled it in–Resulting in amputation of hand
and it in permanent disability-Negligence of zoo authorities proved-claim for compensation of
Rs. 5 lacs with interest-Not unreasonable in view of gravity of injury and physical pain and
mental agony suffered by child.

3) Tomlington Vs Carrington Burrow Council (2003) 3 ALL ER 4 C

Facts
Congleton Borough Council had attempted to turn a disused quarry into a beauty spot and
country park by turning the quarry into an artificial lake. The council prohibited swimming,
recognising the lake to be dangerous for swimmers and had prominent signs p rohibiting
swimming, as well as park rangers who sought to prevent swimming

Issues
Whether the premises created a risk that the claimant should have been able to expect protection
from, even as a trespasser under s1(3)(c) Occupiers Liability Act 1984. Whether the Council
had taken such steps as were necessary to reduce the risk under s1(4) of the Act.

Held
The council had no liability to the claimant. The risk of danger was so obvious that it could be
said that no risk arose from the state of the premises under s1(3) Occupiers Liability Act 1984.
Instead, the risk arose from the claimant’s own actions who voluntarily engaged in this risk.
The respondent was a man of full capacity who voluntarily engaged in an activity which had
an inherent risk in it.
4) Donoghue v Folkestone Properties

Facts
The claimant had decided to go for a midnight swim, but was injured diving and hitting a
submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted
that the defendant knew that swimmers were common.

Held
At the time Mr Donoghue sustained his injury, Folkestone Properties had no reason to believe
that he or anyone else would be swimming from the slipway. Consequently, the criteria set out
in s.1(3)(b) was not satisfied and no duty of care arose.

EXCEPTIONS

1) Act of god (Vis major)

a) Nichols v Marsland (1876) 2 ExD 1

The defendant diverted a natural stream on his land to create ornamental lakes. Exceptionally
heavy rain caused the artificial lakes and waterways to be flooded and damage adjoining land.
The defendant was held not liable under Rylands v Fletcher as the cause of the flood was an
act of God.

2. Act of third party

a) Rickards v Lothian [1913] AC 263

The defendant was the owner of that building. He leased the building in parts to various
business tenants. The case arose because someone had maliciously blocked all the sinks in the
toilets on the fourth floor of the defendant’s building. The same person had then turned on all
the taps, clearly with the intention of causing a flood and therefore causing damage. Eventually
the flooding on the fourth floor travelled down to the second floor and damaged the property
of the claimant.

Issue
The issue in this case was whether a finding of non-natural use of land and Rylands v Fletcher
liability could be found where an escape (which otherwise might constitute such liability) was
caused by the malicious actions of a third party, rather than of the Defendants. Also, at issue
was whether water in this context could be seen as something not naturally on the land which
had been brought to it by the Defendant.

Held

The court held the Defendant to not be liable. First, water supplied to a building is a natural
use of the land. The rule of Rylands v Fletcher requires a special use of the land. Second,
Rylands v Fletcher liability will not be found where the damage was caused by a wrongful and
malicious act of a third party.

b) Box Vs Jubb (1879)

The defendant had a reservoir on their land. There was another reservoir situated at a higher
level than the defendants. The owner of this other reservoir emptied it through a drain
connected to the defendant’s reservoir causing the defendant’s reservoir to overflow and
damage the claimant’s land. The claimant brought an action under Rylands v Fletcher
contending that there was a non-natural user of the land and that there had been an escape of
water that caused damage.

Held:
The defendant was not liable for the damage as it was caused by the act of a third party over
which the defendant had no control.

c) Northwestern Utilities, Ltd. v/s London Guarantee & Accident Co. Ltd. & Others
In Northwestern Utilities v. London Guarantee and Accident Co.,1 the appellants were a public
utility company carrying gas at a high pressure. During the construction of sewer by the city
authorities, a gas pipe leaked, resulting in fire which destroyed the hotel insured by the
respondents. Since the operations of the city authorities were conspicuous and the danger to
the gas pipes could have been reasonably foreseen and guarded against, the failure to do that
was considered to be a negligence on the part of the appellants and they were held liable.

3. PLAINTIFF OWN FAULT

a) Ponting v Noakes (1849) 2 QB 281

The claimant’s horse died after it had reached over the defendant’s fence and ate some leaves
from a Yew tree. The defendant was not liable under Rylands v Fletcher as the Yew tree was
entirely in the confines of the defendant’s land and there had therefore been no escape.

4. COMMON BENEFIT

a) Crastairs Vs Taylor (1871)

The claimant stored rice in the ground floor of a warehouse which he leased from the defendant.
The defendant used the upper floor for storage of cotton. A rat gnawed through a gutter box
draining water from the roof of the warehouse. Following this, a heavy rainfall caused the roof
to leak and damaged the claimant’s rice.

Held:
The defendant was not liable under Rylands v Fletcher. The claimant had not brought the water
onto his land to accumulate it. The heavy rain and actions of the rat were classed a s an act of
God.

INDIAN CASES

a) Glotilda Syiem Vs Union of India

Nepali migrants had heated exchange of word with some of the participants of the said Weekly
market and created some problems for the reason best known to them and immediately they
went to the police outpost established by the Assam police. The police personnel of the said
police outpost established by the Assam police without giving any warning and provocation
fired indiscriminately to the unarmed civilians. Four writ petitions for the same incident on
14.05.2010, in which four persons had been killed due to the firing by the Assam Police
personnel, seeking similar relief against the same respondents- Compensation was granted by
the high court.
b) Chellamma Vs Kerala State Electricity Board, Trivandrum

Death due to electrocution- 1 survived (Abdul) and 1 died (Sivaraman) due to electric shock
from link pipe which was operated by Kerala State Electricity Board - Compensation was
granted of Rs- 75000 by the Kerala High Court.

• Acton Vs Bundell 12 M & W. 324

The defendant by digging a coalpit intercepted the water which affected the plaintiff’s well,
less than 20-year-old at a distance of about 1 mile. Held they were not liable. “The person who
owns the surface, may dig therein and apply all that is there found to his own purpose at his
free will and pleasure, and that if in the exercise of such right, he intercepts or drains of the
water collected from underground springs in the neighbour’s well, this inconvenience to his
neighbours was within the description damnum abseque injuria which cannot become the
ground of action.”

• Chasmore Vs Richards 7 H.L.C. 349

Fact:
Plaintiff owns a mill and he used to get water from a stream for almost from last sixty years
but the defendant dug a well on their land due to which the source of water of plaintiff was
stopped so now the plaintiff was not getting water from the stream by which plaintiff suffered
from loss.

Judgment:
Court held that defendant cannot be held liable for the loss caused to the plaintiff because the
defendant had all the legal rights on his land and he was free to dig wells on his land.

Rylands v. Fletcher

Facts
Plaintiff sued in connection with the flooding of his mine. The trial court found in his favour.
Defendant sought review.

Issue
Was the use of Defendant’s land unreasonable and thus was he to be held liable for damages
incurred by Plaintiff?

Held

• The House of Lords determined that Rylands was liable.

• Rylands knew of the potential for damage to Fletcher’s mine by the coal shafts.
• A person who brings on to his land and keeps anything which likely to interfere with another
person’s rights must do so “at his period” and is answerable for all the damage which may
occur if that thing escapes.
• In this case, the coal shafts were not blocked up and there was a recognisable danger to
Fletcher’s mine. When the reservoir burst, the water travelled through these shafts and damaged
Fletcher’s mine.
• This is known as the “Rule of Rylands v Fletcher”
ABSOLUTE LIABILITY

M.C. Mehta v. Union of India

The Supreme Court was dealing with claims arising from the leakage of oleum gas on 4th and
6th December, 1985 from one of the units of Shriram Foods and Fertilizers Industries, in the
city of Delhi, belonging to Delhi Cloth Mills Ltd. As a consequence of this leakage, it was
alleged that one advocate practising in the Tis Hazari Court had died and several o thers were
affected by the same. The Court had in mind that within a period of one year, this was a second
case of large-scale leakage of deadly gas in India, as a year earlier due to the leakage of MIC
gas from the Union Carbide plant in Bhopal, more than 3,000 persons had died and lacs of
others were subjected to serious diseases of various kinds.

If the rule of Strict Liability laid down in Rylands v. Fletcher was applied to such like situations,
then those who had established 'hazardous and inherently dangerous' industries in and around
thickly populated areas could escape the liability for the havoc caused thereby by pleading
some exception to the rule in Rylands v. Fletcher. For instance, when the escape of "the
substance causing damage was due to the act of a stranger, say due to sabotage, there was no
liability under that rule.

The Supreme Court took a bold decision holding that it was not bound to follow the 19th
century rule of English Law, and it could evolve a rule suitable to the social and e conomic
conditions prevailing in India at the present day. It evolved the rule of 'Absolute Liability' as
part of Indian Law in preference to the rule of Strict Liability laid down in Rylands v. Fletcher.
It expressly declared that the new rule was not subject to any of the exceptions under the rule
in Rylands v, Fletcher.
 MODULE 7 – NEGLIGENCE & NUISANCE

1. Donoghue v Stevenson 1932 AC 562

This case established the ‘neighbour principle’ to establish a duty of care, a defendant
owes a duty of care to their neighbours, a neighbour is some-one ‘so closely and directly
affected by my act that I ought reasonably to have them in my contemplation as being
affected when I am directing my mind to the acts or omissions in question’.

Case summary:
Claimant: Mrs. Donoghue – a consumer
Defendant: Stevenson – café owner
Facts: Mrs. Donoghue consumed ginger beer purchased by a friend whilst they were in
a cafe. The ginger beer had a decomposed snail in, this was only noticed once Mrs.
Donoghue had begun consuming the drink. She suffered from physical illness as a result
of drinking the contaminated drink.
Outcome: Liable
Legal principle: The House of Lords established the ‘neighbour test’ in order to
establish the presence of a duty of care. A defendant owes a duty of care to their
neighbours, a neighbour is some-one ‘so closely and directly affected by my act that I
ought reasonably to have them in my contemplation as being affected when I am
directing my mind to the acts or omissions in question’.

2. Greaves v. Baynham Meikle (1975) 3 AII ER 99 CA

Lord Denning MR said: ‘Apply this to the employment of a professional man. The law
does not usually imply a warranty that he will achieve the desired result, but only a term
that he will use reasonable care and skill. The surgeon does not warrant that he will cure
the patient. Nor does the solicitor warrant that he will win the case.’

Case summary:
Claimant: Greaves and Co. - Contractors
Defendant: Baynham Meikle and Partners – Consultant engineers
Facts: Consultant engineers were instructed to design a warehouse, the first floor of
which, as they knew, was to be used for storing drums of oil that would be moved
around by fork-lift trucks. The warehouse was built to the engineers’ design but after a
few months’ use the first floor began to crack because it was not strong enough to bear
the loads imposed on it. The main contractor, by whom the engineers had been
employed, made a claim against them alleging that they had impliedly warranted that
their design would produce a building fit for its intended use.
Outcome: Not Liable
Legal principle: Despite recognizing that a professional man does not normally
undertake an unqualified obligation to produce the desired result, the exchanges
between the parties were such as to give rise to an implied term that the warehouse as
designed would be fit for the purpose for which it was required. Those who provide
professional services do not generally give an unqualified undertaking to produce the
desired result
3. Indra Sharma v Chairman, RSEB AIR 1998 Raj 140

Claimant: Indra Sharma – relative of deceased

Defendant: RSEB – Co.

Motor Vehicles Act, 1939, Sec. 110 — Claim petition filed on the ground of rash &
negligent driving — Specifically not denied — In appeal it is pleaded that accident took
place due to mechanical failure — Whether Burden of proving rash & negligent driving
lies on claimant? — When the facts are denied evasively then no other evidence or
proof is necessary — Principle of Res Ipsa Loquitur is applicable.

Motor Vehicles Act, 1939, Sec. 110-A; Rajasthan Motor Vehicles Rules, 1964 and
C.P.C. Order VIII Rule 5 — Claim filed on the basis of rash and negligent driving —
Plea of mechanical defect not raised in written statements nor rash & negligent driving
was specifically denied — Driving deemed to be admitted rash & negligent within
meaning of Order VIII Rule 5 CPC — Scope of evasive reply — Mere absence of Order
VIII Rule 5 in the Rules of 1964 will not detract this Court from its normal
interpretation.

Basically, two people in Co. vehicle (RSEB). One drives rashly and other is injured and
thereby deceased. Compensation was awarded.
(Couldn’t find much so read the case and wrote in brief)

4. Lochgelly Iron Coal Co. v. M Mullan 1914 AC 25

Lord Denning MR said: ‘Apply this to the employment of a professional man. The law
does not usually imply a warranty that he will achieve the desired result, but only a term
that he will use reasonable care and skill. The surgeon does not warrant that he will cure
the patient. Nor does the solicitor warrant that he will win the case.’

Case summary:
Claimant: Greaves and Co. - Contractors
Defendant: Baynham Meikle and Partners – Consultant engineers
Facts: the pursuer claimed damages for the death of his son, a miner employed by the
defenders. The claim relied on an alleged breach of s. 49 of the Coal Mines Act, 1911,
which provided that the roof of every working place be made secure. The defenders
argued that such an action was excluded by s.29(1) of the Workmen's Compensation
Act, 1925 which permitted a claim to be made independently of the Act only where
such claim was based on the "personal negligence or wilful act" of the employer
Outcome: Liable
Legal principle: LORD WRIGHT said, negligence means more than headless or
careless conduct, whether in commission or omission; it properly connotes the complex
concept of duty, breach and damage thereby suffered by the person to whom the duty
was owing. defender's failure to discharge what amounted to a non-delegable duty
imposed by the Coal Mines Act was correctly described as "personal negligence"
5. M. Shobha v. Dr Rajakumari Unnitham AIR 1999 Ker 149

Case summary:
Claimant: M. Shobha
Defendant: Doctor(gynecologist), hospital (Shree Sudheenra nursing home) and
Insurance company
Facts: Plaintiff went to doctor as she wanted second child – doc advised tub testing –
medical complications-reproductive organ removed due to infection
Outcome: Not Liable
Legal principle: "negligence" means more than careless conduct. It connotes (1) duty
to take care, (2) breach of the duty and (3) damages thereby suffered by the person to
whom the duty was owing.
The test is standard of an ordinary skilled man exercising and professing to have special
skill. Such a man need not possess highest expert skill.
It was found that hospital or doctor were not negligent (sterilisation of instruments)

6. Nazir Abbas Shujjat Ali v. Ajumshan AIR 1949 Nag 60

Couldn’t get anything, kya bawasir case diya hain.

7. Scott v London and St. Katherine docks

Facts
The claimant was a dockworker who was injured when large, heavy bags of sugar fell
from the defendant’s crane and hit him. The claimant sued the defendant in the tort of
negligence.
Issue
Establishing negligence involves establishing that the defendant breached their duty of
care to the claimant. To establish breach, the claimant must establish that the defendant
failed to act as a reasonable person would in their position.

Here, the claimant could not prove what had happened to cause the sugar bags to fall,
making it difficult to prove that the defendant had breached their duty. The issue was
whether a claimant can establish negligence if they cannot prove what the defendant
did to cause the harm.

Held

The High Court held that a finding of liability was possible in this case.
The court relied on the doctrine of res ipsa loquitur (literally ‘the thing speaks for
itself’). This doctrine holds that if the defendant was in control of a situation, and an
accident occurs which would not normally occur in the absence of carelessness of some
kind but the cause of the accident is unknown, the bu rden of proof shifts to the
defendant to adduce evidence that he was not negligent. If he cannot, a breach of duty
 will be made out. If he can, the court must assess this evidence to determine whether it
is still reasonable to presume negligence.
The court held that this accident was clearly the sort of thing which would not occur if
someone had not been negligent. As the defendant was not able to prove that it had not
breached its duty to the claimant, it was liable.

8. A G v P.Y.A.O Quarries Ltd. (1957) 1AII ER 894 CA

Facts

The defendants operated a quarry and used a blasting technique which emitted large
quantities of dust and noise, as well as causing vibrations which interfered with the
enjoyment of land for many individuals in the area. The claimants sought an injunction
preventing the continuation of a public nuisance as a result. The defendant’s alleged that
what was being carried out was in fact a private nuisance which affected only those in the
area and that they were therefore not bound by the injunction prohibiting ‘public nuisance’
as a result.

Issues

Were the defendant’s actions a private or public nuisance? What was the distinguishing
feature between a private and public nuisance and at which point did a private nuisance
become public in nature?

Held

The blasting operation was capable of constituting a public nuisance and the injunction
could be granted to prevent it. Whilst it was difficult to precisely define the difference
between a public and a private nuisance, a public nuisance could be one which materially
affected the reasonable comfort or convenience of a class of Her Majesty’s subjects. What
constitutes a ‘class’ of people within a neighbourhood depends on the facts of any
particular case and it is impossible to define the precise number of individuals necessarily
effected for them to be considered a ‘class’. Neither do all individuals within the class
have to be personally affected by the nuisance, as long as a representative cross section
have been so effected. A public nuisance is so indiscriminate in its effect that it could not
be reasonable to expect one person to take proceedings on their own to stop it. Instead, it
was the responsibility of the community at large, and that was what had occurred in this
case. As such, the injunction was granted.

9. St. Helen’s Smelting Co. v Tipping (1865) 11 HLC 642

Facts

The claimant was the owner of a large country house with over a thousand acres of
land. This land was close to a copper smelting factory which had long been in
operation. The smelting factory discharged noxious gases as a result of its operation,
which were considered to be a normal part of the smelting operation. As a result, trees on
the claimant’s land were damaged by the fumes and noxious gases. The claimant sued in
nuisance.

Issues

Whether the defendant had acquired the right to carry on with the discharge of their fumes
as a result of the smelting through acquisition and long usage. Whether it was a defence
that the claimant ‘came to the nuisance’.

Held

The claim was allowed. It was no defence to say that the claimant ‘came to the nuisance’
and the defendant could not be said to have acquired a right through prescription to
continue to discharge noxious fumes. Whilst smelting and the discharge of these fumes
was not in itself unlawful, and in a locality in which this was to be expected there could be
no nuisance. However, in nuisance cases like this, it is necessary to distinguish between
nuisance alleged to have caused loss of amenities and comfort, and nu isance which is said
to have caused physical damage to property. Where there had been physical damage to
the claimant’s property as had occurred in this case the question of the character of the
locality itself was irrelevant, where it may have been relevant if the alleged nuisance was
only in the form of discomfort.

10. Mayor of Bradford v Pickles 1895 AC 587

The plaintiffs sought an injunction to prevent the defendant interfering with the supply of
water to the city. He would have done so entirely by actions on his own land.
Held: The plaintiffs could have no property in the water until it came on their land and
they collected it, and ‘if the owner of the adjoining land is in a situation in which an act of
his, lawfully done on his own land, may divert the water which would otherwise go into
the possession of this trading company, I see no reason why he should not insist on their
purchasing his interest from which this trading company desires to make profit.’
The exercise of a legal right is not an unlawful abuse of that right merely by reason of a
predominant improper or ulterior purpose.

Facts

• The defendant diverted undefined water channels below his house, maliciously forcing
the Mayor to purchase his land

Issue

• Could the diversion constitute a nuisance?

Decision

• No

Reasoning

• Legal right to divert if ‘undefined channels’

 MODULE 8 – DEFAMATION

Case Brief
LIBEL
Yousoupoff v M.G.M. 1. Defendants made a film which falsely
imputed that the plaintiff had been raped or
seduced by Rasputin.
2. The defamatory matter was in pictorial
(as opposed to soundtrack) part of the
picture and was held as libel. T
3. he judge in the case, Slesser Lord Judge
referred to a permanent matter capable of
being seen by the eye.

(Metro-Goldwyn-Mayer Limited produced

a film in which a man named Rasputin
brought about the destruction of Russia but
was subsequently murdered by Prince
Chegodieff and others. In the film, Princess
Natasha had sexual relations with Prince
Chegodieff, one the murderers of Rasputin,
but was also raped by Rasputin. In real life,
Princess Irina Youssoupoff was married to
Prince Youssoupoff, the man who assisted
in the murder of Rasputin. The film was a
combination of both fiction and real life
facts.
The imputation is that Princess Irina
Youssoupoff was raped by Rasputin)
SLANDER Slander – falsely imputed chastity of
Bhooni Money Dossee v Natobar Biswas woman – no damage proved – hence no
defamation
Clay v Roberts “doctor consulted homeopaths”-improper,
not defamous
Mawe v Pigott A claim for libel was brought by an Irish
priest, who was said to be an informer
against disloyal and criminal classes. Held:
The action was dismissed. The argument on
behalf of the priest was noted to be that
amongst certain classes who were either
themselves criminal, or who sympathised
 with crime, it would expose the priest to
great odium to represent him as an informer
or prosecutor. Lawson J said: ‘that is quite
true, but we cannot be called upon to adopt
that standard’, and: ‘The very circumstances
which will make a person be regarded with
disfavour by the criminal classes will raise
his character in the estimation of right-
thinking men. We can only regard the
estimation in which a man is held by society
generally.’
Mukul Sangma v PA Sangma Plaintiff – CM of Meghalya
Defendants – ex-politicians and running
news saying CM involved with terrorist
outfits
Interim injunction granted
Penfold v Westcote The defendant said the following about the
claimant: “Why don’t you come out you
blackguard rascal, scoundral, Penfold, you
are a thief”. The trial judge directed the jury
that it was for the defendant to prove that by
using the word ‘thief’ he did not imply the
need to charge the claimant with a felony.
The jury found in favour of the claimant.
 MODULE 9 – TRESPASS

1. Asher V Whitlock
Facts

● Williamson, a squatter on the unregistered land of a Lord, built a cottage which housed
himself, his wife (widowed) and their daughter
● Williamson died, leaving the land upon which the cottage was built to his widow until
she remarried, then his daughter
● His widow remarried, but his daughter did not take possession
● The re-married wife and daughter died at a similar time
● Both the daughter’s descendant and the wife’s husband claimed possession of the land

Issue: Who had the right to possession?

Decision: The daughter’s descendant

Reasoning:

● The Lord (not relevant to the case) could have claimed possession at any time within
20 years of the start of Williamson’s squatting (adverse possession)
● An earlier title will take priority over a later title
● As the daughter’s descendant’s title originated before that of the wife’s husband (on the
death of Williamson as opposed to the start of the new husband’s occupation), the
descendant’s title took priority

2. Bird v. Jones [1845] 7 QB 742

False imprisonment – obstruction of a public road

Facts:

Bird, B, wished to cross a section of a public road which was closed off due to a boat race. Two
policemen, D, prevented B from passing in the direction he wished to go, but was allowed to
go in the only other diction in which he could pass. B refused to go in that direction and stood
in the same place. B raised an action against D for false imprisonment.

Issue:

B claimed that the exclusion from using a section of the public road which prohibited him from
moving in one direction, despite all other directions remaining unobstructed, constituted false
imprisonment.
Held:

Partial obstruction and disturbance do not constitute imprisonment. Coleridge J. stated at

paragraph 744 of his judgement that:

“a prison may have its boundary large or narrow, visible and tangible, or, though real, still in
the conception only; it may itself be moveable or fixed: but a boundary it must have; and that
boundary the party imprisoned must be prevented from passing; he must be prevented from
leaving that place, within the ambit of which the party imprisoning would confine him, except
by prison-breach.”

A prison must therefore have a boundary. As there was still one direction which B could take,
he could not be said to have been imprisoned as he was not confined and prevented from
passing or leaving that place. B was at liberty to move off in another direction and no restraint
or actual force was used against him.

3. Elias v Pasmore [1934] 2 KB 164, Trespass ab initio

Where police officers wanted to arrest a man and had legally entered the claimant’s land in
order to do so. While on the land they seized a number of items, some lawfully and some
unlawfully.

Held: that they had committed trespass only with regard to the documents unlawfully
removed; their wrongful act did not disturb the main purpose of entry, which was to make a
lawful arrest.

4. Grainger v Hill

Plaintiff brought suit after Defendant had him arrested when Defendant accelerated payments
on a mortgage that he had due to them.
Rule of Law: Abuse of process in order to extort an outcome from another party is actionable.
Facts. Plaintiff mortgaged his vessel to Defendant, with an agreement to repay within a certain
time period. Defendant sought to compel Plaintiff to give up title to the vessel, without which
he could not work, and threatened him with prison if he did not comply or pay the mortgage in
full. When Plaintiff refused, Defendant had him arrested, and Plaintiff brought suit.
Issue. This case is among the first cases, which considers whether abuse of legal process is
actionable in a court of law.
Held. The Court of Common Please held that Plaintiff did have a cause of action, and thus
denied nonsuit. Additionally, the court held this cause was an action for abusing the process of
law, by applying it to extort property.
5. Gregory v Piper [1829] 9 B & C 591

Trespass – Vicarious Liability

Facts

Gregory (G) owned a pub called the Rising Sun with a stable-yard in the back which could be
accessed by a back gate through Old King’s Yard. Piper (P) owned the property surrounding
Old King’s Yard and disputed G’s right to pass through the yard to his stable. P employed a
labourer (S) to lay down a quantity of rubbish, consisting of bricks, mortar, stones, and dirt,
near G’s stable-yard, in order to obstruct the way. Part of this rubbish rolled against G’s wall
and gates, and G refused to remove it. G raised an action of trespass against G.

Issue

The issue in question was whether a master could be liable for the trespass which occurred as
a result of instructions the master gave to another in his employment. P claimed he could not
be held liable because he had instructed S not to let the rubbish touch the wall, and the fact that
the rubbish resulted in a trespass of G’s property was due to negligence on S’s part.

Held: A master is liable in trespass for any act done by his servant in the course of executing
his orders with ordinary care. P was therefore liable for trespass as it was a probable and
foreseeable result of the S‟s act which P had instructed S to do. The trespass was a necessary
or natural consequence of the act ordered to be done by P, therefore making P as the employer
liable.

6. Harrison v Duke of Rutland

Facts: The plaintiff used a public highway crossing the defendant’s land to disrupt grouse-
shooting upon the defendant’s land. He complained after he had been forcibly restrained by the
defendant’s servants from doing so. The defendant justified his actions saying that the plaintiff
was a trespasser upon the highway.
Held: The court found for the defendant
Reason: In so far as the plaintiff was upon a highway for purposes other than its use as a
highway, he was a trespasser.

7. Hill v Tupper

Facts:

The plaintiff, Hill, was granted a lease of land on the side of the Basingstoke Canal by the canal
company. The lease also gave the plaintiff the sole and exclusive right to put pleasure boats for
hire on that stretch of the canal. The defendant, Tupper, was the landlord of an inn which
adjoined the canal bank. The defendant put his own boats for hire on the canal, disturbing the
plaintiff’s business and causing him loss of profits.

Issues:

Tupper admitted using pleasure boats on the canal and that these were used by his customers
at the inn. However, he argued that the plaintiff was not entitled to the sole and exclusive use
of the canal. The plaintiff claimed that his right amounted to a profit à prendre. A profit is the
right to take or use something from another’s land. The question here was whether such a right
was recognized by law.

Held:

The court held that this was only a personal right and not a profit. The right to have the sole
and exclusive use of land covered by water was not an established right in law, and new types
of incorporeal rights in property could be created at will. The right was not analogous to any
previously recognised by law, such as the right to take fish or turf. If the plaintiff had needed
to get from one side of the canal bank to the other this could have been an easement as the right
would clearly have benefitted the land. Here, the right was not connected with the land.
Consequently, this was not a valid profit.

8. Ward v. Hobbs
Facts: Seller did not disclose to the buyer that the pigs that were being sold by him were
suffering from typhoid fever. He mentioned that the pigs that were being sold were being sold
“with all faults”. The disease was transmitted to other pigs of the buyer and many of them died
due to that.

Held: There was no false statement that the buyer could have deemed to have relied on and he
purchased the pigs “with all faults” i.e., at his own risk and therefore the seller is not liable for
fraud.

9. Meering v. Graham white Aviation CO

Knowledge not required for commission of offence of false imprisonment. Employee confined
without knowledge for alleged theft.

Chief Justice ATKIN

Facts:
The claimant was asked to go to a room with two work policemen from the Avation company.
He asked why and stated he would leave if not told. When told it was on suspision of theft he
agreed to stay, and the works police stood outside until the metropolitan police arrived.
Unkown to him they were asked to prevent him leaving.
Held:
It was held that an act which fulfils the requirement for a false imprisonment, even if the
claimant is unaware at the time, still counts. Meering was entitled to damages.

10. Wood v. Leadbitter

Plaintiff had ticket to spectate the horse race. Defendant’s asked him to leave the premises and
forcibly ejected him out between the races. HELD. License was revoked and had become a
trespasser. No wrong.

Facts
The claimant was attending Doncaster races, when he was removed from the racecourse by the
defendant. The claimant had entered the racecourse, which was owned by the employer of the
defendant under licence and on the basis that he had paid one guinea to be able to do so. It was
argued that the payment and the licence granted the grantee the right to remain on the
racecourse for the duration of the races. The owner of the racecourse subsequently decided that
he wanted the claimant to leave the defendant informed him of this. After leaving a reasonable
period of time for the claimant to leave, the defendant, without using unreasonable force
removed him from the racecourse. The guinea paid by the claimant was not however, refunded.
At first instance, the matter was settled in favour of the defendant, the claimant appealed.

Issue
The issue in this circumstance was whether a licence which was entered into subject to a
payment of money could be revoked unilaterally.

Held
It was held that a licence, even if subject to the payment of money, could be revoked at any
time and without the return of the money. In order for the right to enter and remain on property
to be enforceable by a person in the claimant’s position, the right must be granted by deed. A
licence without this formality was not enforceable. The appeal was dismissed.

11. Joginder v St of U.P

Facts
Joginder Kumar, who was a 28-year-old lawyer, was summoned for inquiries to the office of
Senior Superintendent of Police [SSP], Ghaziabad. Joginder Kumar was accompanied by his
brother along with friends, who were further informed that the petitioner would be released
from custody by that evening. Whereas, the petitioner himself was told with the assurance that
he shall be released on the next day.

A few days later it came to the nice that the advocate was being detained without the production
before the concerned Magistrate. When the brother of the advocate wished to inquire about his
wellbeing, it was found that the advocate was taken to an undisclosed place. A petition under
Article 32 of the Indian Constitution was filed.
The police officers claimed that the advocate was released and there was no question of
detailing him as he was cooperating with them in some abduction related matter.

Held:
The existence of the power to arrest is one thing. The justification for the exercise of it is quite
another. The police officer must be able to justify the arrest apart from his power to do so. No
arrest can be made in a routine manner on a mere allegation of commission of an offence made
against a person. It was ruled that, an arrest cannot be made on a mere allegation of offence
against a person or in a routine manner. Constitutional rights of a person mandate that he not
be arrested on simple suspicion of complicity in an offence. It cannot be made without a
reasonable satisfaction reached after some investigation is made as to the genuineness of the
complaint.

12. Robinson v Balmain New Ferry Co. Ltd [1910]

Facts
Robinson (R) paid a penny to cross on a ferry, however he narrowly missed the ferry and
changed his mind about crossing. R attempted to leave through the gate he came through,
however it required another penny to be paid to leave. R refused to pay the penny because he
had not crossed on the ferry. Balmain New Ferry Co. (D) forcibly prevented R from leaving
until he paid the penny. R raised an action for false imprisonment.

Issue
R claimed that he was falsely imprisoned due to the forcible prevention of his leaving the ferry
wharf without paying a penny to leave.

Held
A person can be legitimately prevented from leaving if they had entered an earlier contracted
permitting so. When R entered the ferry gate, he agreed to pay a penny on both entering and
leaving the ferry. This bound him to a contract and D was entitled to impose a reasonable
condition before allowing him to pass through their turnstile from a place to which he had gone
of his own free will. This case narrows the law on false imprisonment, following the case
of Bird v. Jones [1845] 7 QB 742 in which it was held that false imprisonment is constituted
by total (and not partial) obstruction, however in the present case it is held that it even where a
person is totally obstructed it will not constitute false imprisonment if there is a reasonable
condition to passing.

13. Hurst v Picture Theatres Ltd (1915) 1 KB 1

Facts- The claimant purchased a ticket, and therefore had a contractual license to watch a
theatre performance. The defendant, acting under a mistaken belief that the claimant had not
paid for a ticket, forcibly ejected the claimant.
Issue- was the license revocable; could the claimant obtain damages for trespass to the
person?
Decision- Not revocable; damages available.
Reasoning-
 • Where the contract provided for the prevention of rejection of a duty, the license was
not revocable.
• As the claimant was not a trespasser, damages for trespass to the person were
available.

14. Canadian Pacific Railway v R 1931 AC 414

Respondent- Dame Agnes Robinson
Facts- The husband of the respondent was injured while engaged in his duties as appellants’
employee and the injury resulted in his death about fifteen months afterwards. The widow
brought an action for compensation within one year after his death.
Decision- Damages were not recoverable (this is a reversed decision).
Reasoning- Evidence showed that the accident was caused by the negligence of fellow
servants of the deceased for which defendants were not liable.
 -:CREDITS:-

❖ Aalokaa Verma

❖ Ashrita Tyagi

❖ Bhoomika Gupta

❖ Harshit Singh

❖ Jay Shah

❖ Parthiv Gandhi

❖ Rhythm Patel

❖ Varun Matlani