LAW OF TORTS

CH-1 (DEFINITIONS)

Q1) Define Law of Torts? [8]

Ans-) The word tort has been derived from the Latin term 'tortum’, which
means 'to twist'. It includes that conduct which is not straight or lawful, but, on
the other hand, twisted, crooked or unlawful. It is equivalent to the English term
'wrong'.

The law of Torts lies with a basic principle of ‘breach of duty’. It requires
inconvenience that may or may not result in material loss. This branch of law
consists of various 'torts' or wrongful acts whereby the wrongdoer violates some
legal right vested in another person. So far, no scientific definition has been
possible which could mention certain specific elements, the presence of which
could constitute a tort as, for example, it has been possible in the case of a
contract. Various authors have defined tort in their own ways. Some of them
are: -

 According to Salmond “Tort is a civil wrong for which the remedy is a

common law action for unliquidated damages, and which is not
exclusively the breach of a contract or the breach of a trust, or other
merely equitable obligation
 Winfield says “Tortious liability arises from the breach of a duty
primarily fixed by law. This duty is towards persons generally and its
breach is redressable by an action for unliquidated damages”
 Pollock’s contribution to the definition is “tort is an act or omission (not
merely the breach of a duty) arising out of personal relations, or
undertaken by a contract which is related to harm suffered by a
 determinate person, giving rise to a civil remedy which is not an action of
contract”
 "It is an infringement of a right in rem of a private individual giving a
right of compensation at the suit of the injured party."—Fraser.

Q2) Is it law of Tort or Law of Torts? [10]

Ans-) There are two competing theories in this regard. According to one
theory, there is a general principle that all wrongs are actionable as tort unless
there is any legal justification. The other theory says that there is no general
principle of liability as such but only a definite number of torts as trespass,
negligence, nuisance, defamation etc. and the plaintiff has no remedy unless he
brings his case under one of the nominate torts.

Winfield is of the view that it is law of tort. According to his theory, every
wrongful act is actionable as a tort, unless lawful justification for that can be
shown. Thus, according to this theory tort consists not merely of those torts
which have acquired specific names but also included the wider principle that
all unjustifiable harm is tortuous. This enables the courts to create new torts.
Winfield while supporting this theory comes to the conclusion that law of tort is
growing and from time-to-time courts have created new tort

Indian judiciary has also shown a favour to Winfield’s theory. In the words of
Justice BHAGWATI, C.J., we have to evolve new principles and lay down new
norms which will adequately deal with new problems which arise in a highly
industrialized economy. We cannot allow our judicial thinking to be constricted
by reference to the law as it prevails in England……. we are certainly prepared
to receive light from whatever source it comes but we have to build our own
Jurisprudence. In the same case the Supreme Court of India established the
concept of ABSOLUTE LIABILITY in place of strict liability [Ref. case-
M.C. Mehta v. Union of India, AIR 1987 SC 1086]

Salmond on the other hand, preferred the second alternative and for him, there
is no law of tort, but there is law of torts. According to him the liability under
this branch of law arises only when the wrong is covered by any one or other
nominate torts. There is no general principle of liability and if the plaintiff can
place his wrong in any of the pigeon-holes, each containing a labelled tort, he
will succeed. This theory is also known as ‘Pigeon-hole theory’. If there is no
pigeon-hole in which the plaintiff’s case could fit in, the defendant has
committed no tort.
According to Salmond, just as the criminal law consists of a body of rules
establishing specific offences, so the law of torts consists of a body of rules
establishing specific injuries.

Winfield made a modification in his stand regarding his own theory. He thought
that both his and Salmond’s theories were correct, the first theory from a
broader point of view and the other from a narrower point of view respectively.
In the words of Winfield, from a narrow and practical point of view, the second
theory will suffice, but from a broader outlook, the first is valid. It is thus a
question of approach and looking at the things from a certain angle. each theory
is correct from its own point of view.

Q3) Distinguish between Tort and Breach of Contract. [6]

Ans-) The tort in law is defined as the private infringement of the civil rights
of an individual and the tort occurs when there is negligence by the wrongdoer
and directly causes the injury to the individual person or injury to his/her
property.

The breach of contract means, when one of the contracting parties failed to
perform his contractual obligations or breaks the terms and conditions of the
contract, then the contract is said to be breached. The difference between the
two is as follows: -

 In a contract, the parties, with their free consent, undertake to perform

certain duties. In a tort, the duties are imposed by law.
 In a contract, the contracting parties owe a duty to each other only. A
duty not to commit a tort is owed to persons generally and not to any
particular individual (Donoghue v. Stevenson).
 In the law of torts, there is a specific violation of a right in rem whereas
in case of a contract, the breach is due to the violation of a right in
personam.

Though the above distinctions are made out, it cannot be disputed that there are
cases where torts and breach of contract overlap e.g. A surgeon negligently
operating P's minor son. There is no contract between the surgeon and the father
of the minor son, but there is a tort of negligence by the surgeon in relation to
the boy.
Q4) Distinguish between Tort and Crime. [8x1]

Ans-) Crime refers to the commission or omission of an act, intentionally

which amounts to an offence, as it is harmful or threatening. Such an act is
explicitly defined, strictly prohibited and punishable under the criminal code.
The punishment will be in the form of imprisonment or fine or both.

Unlike a crime, tort is doing something wrong hampering individual parties. In

legal terms, a tort happens when negligence directly damages a person or
his/her property. There are different types of torts, but all of them result in
injury to a private person or property. The difference between Tort and Crime is
as follows: -

 Tort refers to a wrongful act done by one person against another, causing
injury or harm and results in a civil wrong for which legal liability is
imposed by the court. On the other hand, Crime can be understood as any
act or omission which results in a violation of the law and attracts
punishment, such as fine or imprisonment or both. A criminal act is not
against a person but society as a whole.

 The law for torts is uncodified, whereas every country has a criminal
code for crimes. The compensation decided by the court for the defendant
in case of tort depends on the measures of wrong and loss caused to the
claimant. However, the punishment for the crimes is laid down
specifically. Therefore, for every particular crime of which an individual
is accused, there is a specific charge, which is tried separately in criminal
court.

 Tort involves infringement of an individual’s rights, whereas a crime is

concerned with a violation of public rights, which affects the entire
society.
  In the case of tort, the defendant or the tortfeasor is sued in the civil court.
Further, it is up to the aggrieved party only whether he/she wants to take
the matter to the court or not. In contrast, Criminal offences i.e., crimes
are tried under criminal law and prosecuted by the state.

 The primary aim of tort law is to provide relief to the injured party, for
the loss suffered due to other party and also protect the rights of a person.
As against, the criminal law aims at maintaining law and order in the
society and providing prevention against crime and punishing the
wrongdoer.

 In tort law, when the defendant is proven liable, the defendant has to
compensate the injured party for the damages or restitute, whatever is
stolen or seized. On the contrary, when the accused is found guilty for the
act, he/she is sentenced, i.e., a punishment is assigned by the court.

 In the case of tort, the burden of proof lies with the claimant, i.e., the
injured party who initiated the case. However, in the case of crime, the
burden of proof lies with the prosecution due to the presumption of
innocence.

In a nutshell, torts are often accidental or unintentional, but due to negligence,

the injury takes place, which needs to be compensated or restituted. On the
contrary, crimes are deliberate and planned wrongful act undertaken with the
intention to harm or threaten others to get some unlawful benefit.
Q5) Discuss the following maxims.
(a) Damnum Sine Injuria – [8]
The word Damnum is a Latin word which means Damage.
The word Sine is also a Latin word meaning Without; and
The word Injuria which is also a Latin word means injury of the Lawful
personal privileges
Damnum sine Injuria is a legal maxim which refers to as damages
without injury or damages in which there is no infringement of any legal
right which are vested with the plaintiff. Since no legal right has been
infringed so no action lies in the cases of damnum sine injuria.  The
general principle on which this maxim is based upon is that if one
exercises his common or ordinary rights, within reasonable limits, and
without infringing other’s legal right; such an exercise does not give rise
to an action in tort in favour of that other person. Damages can be in any
form either in the form of any substantial harm or loss suffered from
respect to the money, comfort, health, etc. 
It is an implied principle in law that there are no remedies for any moral
wrongs, unless and until any legal right has been infringed. Even if the
act or omission such done by the defendant was intentional, the Court
will not grant any damages to the plaintiff.
In Gloucester Grammar School's case, the defendant was a teacher who
was teaching in Gloucester Grammar school and due to some disputes, he
left the school and opened his own school and even reduced the fees from
40 pence, which was charged in Gloucester Grammar School to 12 pence.
As a result, the students started leaving the Gloucester Grammar school
and joined the defendants’ school due to the lower fees. This resulted in a
loss for the Gloucester school.
 The plaintiff sued the defendant for trespassing their franchise and
demanded damages caused by for the monetary loss caused by the
defendant.
The court held that the defendant who opened the rival school would not
be liable for the monetary loss that occurred to the plaintiff. Though there
has been loss suffered to the plaintiff by the act of the defendant, still he
would not be getting any damages for the monetary loss by the defendant
The court also held that this case covers the essentials of the maxim
Damnum Sine Injuria and therefore the defendant did not violate any
legal right of the plaintiff even though the plaintiff suffered monetary
loss. Therefore, the plaintiff was not given any damages for his monetary
loss as the essentials of Damnum Sine Injuria were met.
(b) Injuria Sine Damnum – [8]
The maxim Injuria Sine Damnum is just the opposite of Damnum Sine
Injuria.
Injuria means injury of the Lawful persons
Sine means without
Damnum means damage
Thus, the maxim Injuria Sine Damnum means the legal injury caused to
the plaintiff without any damage to the physical injury or in simple terms
it means a situation where no damage has been caused by a particular
act, but that act violated a legal right of another.
Therefore, even by an act of any person, no damage is caused to the
other, but there has been a violation of the legal right of the other person,
then the person committing such violation will be held guilty even if no
damage has been caused.
For example, A, a person was on his way to give his vote to favorite
leader but he was not allowed by B to give the vote as he did not have
necessary documents to show that he was an eligible voter. A, kept on
 saying that he was an eligible voter and was backed by necessary
documents to prove his eligibility. B, still did not allow him to vote.
However, the candidate whom A wanted to vote won and as a result no
such damage was caused to him. But B was held guilty of Injuria Sine
Damnum as not allowing a person to give vote is a violation of legal
right of A, no matter what was the outcome of the result.
In the case of Ashby vs White, the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of time. The
defendant, a returning officer wrongfully refused to take the plaintiff's
vote. The plaintiff, however suffered no damage since the candidate
whom he wished to vote had already won the election, but still the
defendant was held guilty by the court.
The court held that damage is not merely pecuniary but injury imports a
damage, so when a man is hindered of his legal rights, he is entitled to
remedies. Hence, according to the meaning of the maxim Injuria Sine
Damnum, the defendant was held guilty and was liable to pay damages
to the plaintiff, although no damage was caused to him but by the act of
the defendant, the plaintiff suffered a violation of his legal right to vote.
Hence, the court said that the plaintiff was entitled to damages by the
defendant.

Q6) "All wrongs are not torts"- Explain? [8]

Ans) Tort may be defined as civil wrong which is different from other civil
wrongs. Although a tort is essentially a civil injury, all ci vil injuries are not
torts. Take for instance, public nuisance committed by a person is not a tort and
an action for it has to be taken by the attorney general. For e.g., if a person
wrongfully obstructs a public road,

i.e., he causes inconvenience which wouldn’t be otherwise caused, the govt.

authorities are authorized to take immediate actions against the wrongdoer. But
say, if the obstruction causes enough inconvenience to a particular individual,
causing extreme loss, be it financial or physical, the aggrieved party can claim
damages for the simple reason that he has directly suffered from the wrongful
act. Simply put, in the first case the act done was a civil wrong but it doesn’t
constitute a tort, while the other one is a tort because in the second case it is the
party who is directly affected from the wrongful act. But in the previous one,
the wrongful act is affecting the society in large.

Again, breaches of statutory duties are not torts. There is a remedy for this by
the issuance of writ, which is mandamus. It cannot come under tort although it
is a civil wrong. Under the mandamus order, the person who fails to comply
with the conditions laid down in the statute will be compelled to do a certain act
in conformity with the provisions of the particular statute. Since damages are
not the appropriate remedy for such breaches, they are not classed as torts. The
classic examples are the relationship between carrier and passenger and master
and servant. Other examples are breach of trust, breach of contract etc. Tort,
negligence, assault, battery, libel, defamation would be a tort.

Breach of contract may be wrong, but it's not a tort, so to speak. The idea is that
when two businesses work out a contract, and they both are sophisticated and
have legal representation, they should be able to figure out what could go wrong
and spell out in the contract what the remedies should be if something goes
wrong. If they fail to do so, later, when something does go wrong, they are still
stuck with the contract if their losses are economic only. It was Winfield’s view
that tortuous duties exist by virtue of the law itself and are not dependent upon
the agreement or consent of the persons subjected to them. I am under a duty
not to assault you, not to slander you, because law says. I am under such a duty
and not because I have agreed with you to undertake such a duty. There can be
some exceptions to this (false representations, for e.g.), but that is the general
doctrine. Failed expectations -- one side thought it was going to make a killing
in a business deal and it didn't -- is strictly a contract issue, which is a civil
wrong but doesn’t come within the pigeon-hole of torts.

CH-2 (ABSOLUTE AND STRICT LIABILITY)

Q1) Discuss the rule of "Strict Liability" With Decided Case Laws. [16]

Ans-) Some activities may be so dangerous that the law has to regulate them
with extreme consequences. For example, the law may sometimes levy a
penalty even if damage occurs without somebody’s fault. This is exactly what
happens under the rule of strict liability. This rule is very important for
commercial and other activities that have the potential to result in horrific
damages.

The strict liability principle is an extremely important concept under the law of
torts. The basis of this principle basically lies in the inherent harm that some
activities can inflict. For example, leaking of poisonous gasses, as it happened
in the Bhopal Gas Tragedy, will attract this rule.

The underlying principle of compensation in torts generally depends on the

extent of precautions a person takes. Hence, if he takes abundant precautions to
prevent some harm, the law may exempt him from paying damages. This
principle, however, does not apply to strict liability.

Under the strict liability rule, the law makes people pay compensation for
damages even if they are not at fault. In other words, people have to pay
compensation to victims even if they took all the necessary precautions. In fact,
permissions allowing such activities often include this principle as a pre-
condition.

Rylands v. Fletcher

The rule of strict liability originates from the famous English case of Rylands v.
Fletcher. According to the facts of this case, the defendant owned a mill and
wanted to improve its water supply. For this purpose, he employed a firm of
reputed engineers to construct a reservoir nearby.

The problem occurred when the reservoir was so full one day that the water
from it started over-flowing. The water flowed with so much force that it
entered the plaintiff’s mine and damaged everything.

The engineers, who were independent contractors of the defendant, were clearly
at fault. This is because they were negligent in constructing the reservoir. This
is exactly what the defendant also said for avoiding his liability. The court,
however, disagreed and explained the strict liability rule. It said that when
somebody keeps something on his property for his benefit, it should not escape
and affect others. In case it so escapes, the owner of that thing must compensate
the victim even if he was not negligent.

Exceptions to Strict Liability -

The strict liability rule does not apply in cases involving the following
exceptions:

1) Act of God

An act of God is a sudden, direct and irresistible act of nature that nobody can
reasonably prepare for. It can cause damage regardless of how many
precautions one may take. For example, tsunamis, tornadoes, earthquakes,
extraordinary rainfall, etc. are acts of God. Any damage that occurs due to these
acts does not attract strict liability.
2) Wrongful act of a third party

Sometimes, the involvement of third parties may be the cause of damages. For
example, renovation work in one flat may cause some nuisance to another flat.
Here, the tenant affected by the nuisance cannot sue his landlord. He can only
sue the person renovating the other flat.

3) Plaintiff’s own fault

In several instances, the plaintiff may himself be at fault for the damage he
suffers. In such cases, he cannot shift liability on some other person regardless
of how much he suffers.

Q2) Discuss the rule of "Absolute Liability" With Decided Case Laws. [16]

Ans-) Absolute Liability: -

The following modifications in the existing Doctrine of Rylands vs. Fletcher

led to the following Doctrine of Absolute Liability that prevented the
defendants from taking up any defense against payment of compensation:

If an industry or enterprise is involved in any inherently dangerous activity,

then for any damage arising out of the conduction of that activity, the
defendants (the owners of the industry) will have no access to any defence or
exception and will be absolutely liable to pay compensation to the aggrieved
parties.

· The enterprise will be held responsible for all possible damages or

consequences resulting from the activity. This will make such industries provide
safety equipment to its workers to prevent any mishap. Therefore, this will
safeguard the interests of the workers and will give them a refined, safe working
atmosphere.

· The element of escape which is an essential in strict liability may be ignored

here as this restricts the application of this Doctrine of Absolute Liability as
often incidents may arise where escape of the dangerous thing like poisonous
fumes may not take place outside the industry premises but may damage the
workers inside. In this case, the workers’ right to compensation will not be
ignored. Therefore, the extent of this principle is to be applied in a wider
context ruling out the element of escape.

In cases where strict liability applies, compensation paid is according to the

nature and quantum of damage

caused but in cases of absolute liability, compensation or damage to be paid is

exemplary in nature. The amount decided upon should be more than the damage
caused as industrial hazardous accidents generally causes mass death and
destruction of property and environment.

A few cases where Absolute Liability was upheld: -

M.C. Mehta vs. Union of India, A.I.R. 1987 S.C. 1086: -

The S.C. of India was dealing with claims of leakage of oleum gas on the 4th
and 6th December,1985 from one of the units of Shriram Foods and Fertilizers
Industries, Delhi. Due to this leakage, one advocate and several others had died.
An action was brought against the industry through a writ petition under Article
32 of the Indian Constitution by way of a Public Interest Litigation (PIL). The
judges in this case refused to follow the Strict Liability Principle set by the
English Laws and came up with the Doctrine of Absolute Liability. The court
then directed the organizations who had filed the petitions to file suits against
the industry in appropriate courts within a span of 2 months to demand
compensation on behalf of the aggrieved victims.
Bhopal Gas Tragedy / Union Carbide Corporation v. Union of India, (1991)
4 SCC 548: -

This doctrine was upheld in the infamous Bhopal Gas Tragedy which took place
between the intervening night of 2nd and 3rd December, 1984. Leakage of
methyl-iso-cyanide (MIC) poisonous gas from the Union Carbide Company in
Bhopal, Madhya Pradesh led to a major disaster and over three thousand people
lost their lives. There was heavy loss to property, flora and fauna. The effects
were so grave that children in those areas are born with deformities even today.
A case was filed in the American New York District Court as the Union Carbide
Company in Bhopal was a branch of the U.S. based Union Carbide Company.
The case was dismissed there owing to no jurisdiction. The Government of
India enacted the Bhopal Gas Disaster (Processing of Claims) Act, 1985 and
sued the company for damages on behalf of the victims. The Court applying the
principle of ‘Absolute Liability’ held the company liable and ordered it to pay
compensation to the victims.
CH-3 (VICARIOUS LIABILITY)

Q1) Discuss the Vicarious Liability of the Master for the acts done by the
Servant during the course of employment. [10]

Ans) Vicarious Liability of Master for torts by Servant

In a Master-Servant relationship, the master employs the services of the servant

and he works on the command of master and thus a special relation exists
between the two and in case of a tort committed by the servant, his master is
also held liable.

There are many cases in which the servant does an act for his master and thus in
law, it is deemed that the master was doing that act himself, therefore if the
servant commits an unlawful act the master will also be held liable for the same.
This liability of the master is based on the following two maxims

1.Qui facit per alium facit per se: – It means that whenever a person gets
something done by another person then the person is viewed to be doing such an
act himself.

Illustration: If A is the owner of many trucks and employs drivers to drive

them for the purpose of trade and in case one of his drivers gets into an accident
because of his rash driving, then even though A did not drive the truck himself,
he will be liable for the accident.

2. Respondent Superior: – It means that the superior should be held responsible
for the acts done by his subordinate.

These two maxims have played a significant role in the development of the law
of vicarious liability of the master.
Essentials of Vicarious liability in Master-Servant Relationship

These essential conditions have to be followed for the vicarious liability of

master to arise: –

1. The servant has committed an act which amounts to a tort.

2. Such a tortious act is committed by the servant during the course of his
employment under the master.

Reasons for liability of the Master

There are several reasons behind holding the master liable for the acts of his
servants which are: –

1. An act which is committed by the servant is considered to be done by

the master through him and therefore in the law of torts, it is assumed
that if any wrong is done by the servant, it has been committed by his
master indirectly and so the master is held liable for these wrongs.

2. The master is in a better financial position as compared to his servant

and thus in case of any loss caused bythe tortious act of the servant, the
master is better suited to pay off the damages to the victim of the act.
Also, since the master is made liable, he makes sure that all reasonable
care and precautions are carried so that he can avoid such liability.

3. When a servant does any act, the benefit from such an act is enjoyed
by the master and thus for the liability arising out of the servant’s act,
the master should also shoulder that liability.
Various ways in which liability of Master arises

A master becomes liable in the following situations:

1. Wrong done as a natural consequence of an act by Servant for

Master with due care

If the employee does an act which is done in pursuance of the instructions of the
master, then the master will be held liable for any wrong which arises out of
such an act even if all due care is taken by the employee in discharging his
work.

In Gregory v. Piper (1829) 9 B & C 591, the defendant and plaintiff had some
disputes between them and the defendant, therefore, ordered his servant to place
rubbish across a pathway to prevent the plaintiff from proceeding on that way
and the servant took all care to ensure that no part of it was touching the part of
the plaintiff’s property but with the passage of some time. The rubbish slid
down and touched the walls of the plaintiff and thus he sued for trespass. The
defendant was held liable despite his servant taking all due care.

2. Wrong due to Negligence of Worker

A master is also liable for an act of servant which he does negligently or fails to
take due care in carrying out.

In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co.
(P), deceased was travelling in a car driven by the manager of the respondent
company and it met with an accident as a result of which he died. The
dependents of the deceased filed a claim and the tribunal allowed damages but
on appeal to the High Court, it was set aside on the grounds that the accident
does not make the respondent company liable. But the Supreme Court in its
judgement overruled the judgement of the High Court and held that from the
facts of the case it was clear that the accident had occurred due to the
negligence of the manager who was driving the vehicle in the course of his
employment and therefore, the respondent company was liable for his negligent
act.

Illustration: If H works as a house cleaner for K then there is a master and

servant relationship between them but, if H instead of cleaning the house
decides to cook food even though he has only been hired for cleaning the house
and due to his negligence causes a fire which also causes loss to K’s neighbour
L, then K, will not be liable because H did an act which was outside the course
of his employment.

3. Wrong by excess or mistaken execution of a lawful authority

For making the master liable in such a case it has to be shown that: –

1. The servant had intended to do an act on behalf of his master, which he

was authorized to do.

2. The act would have been lawful if it was done in those circumstances
which the servant mistakenly believed were true or if the act would
have been lawful if done properly.

In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter of a

railway company while working mistakenly believed that the plaintiff was in
the wrong carriage even though he was in the right one. The porter thus pulled
the plaintiff as a result of which the plaintiff sustained injuries. Here, the Court
held the railway company vicariously liable for the act of the porter because it
was done in the course of his employment and this act would have been proper
if the plaintiff was indeed in the wrong carriage.

In Anita Bhandari & Ors. v. Union of India, The husband of the petitioner
went to a bank and while entering inside it, the cash box of the bank was also
being carried inside and as a result, the security guard in a haste shot him and
caused his death. The petitioner had claimed that the bank was vicariously liable
in the case because the security guard had done such act in the course of
employment but the bank had contended that it had not authorized the guard to
shoot. The Court held the bank liable as the act of giving him gun amounted to
authorize him to shoot when he deemed it necessary and while the guard had
acted overzealously in his duties but it was still done in the course of
employment.

4. Wrong committed wilfully by a servant with the intention of serving

the purpose of the master

If a servant does any act wilfully, recklessly or improperly then the master will
be held liable for any wrong arising out of such act, if such an act is done in the
course of employment.

In Limpus v. London General Omnibus Co. (1862) EngR 839, the driver of
the defendant company, wilfully and against the express orders not to get
involved in racing or to obstruct other omnibuses, had driven to obstruct the
omnibus of the plaintiff. In the case, the Court held that the defendant company
was liable for the act of driver because the driver’s act of driving the omnibus
was within the scope of the course of employment.

In Peterson v. Royal Oak Hotel Ltd. (1948) N.Z.I.R. 136, The plaintiff was a
customer who on being intoxicated was refused further drinks by the barman,
who was employed under the respondent and thus the plaintiff threw a glass at
him. The barman took a piece of the glass and threw it at him which hit his eye.
The respondent hotel was held liable due to the act of the barman who had a
master-servant relation with them.

5. Wrong by Servant’s Fraudulent Act

A master can also be held liable for any fraudulent act of the servant.

In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff was a widow
who owned 1000 pounds as dues on a mortgage and a cottage. She went to the
manager of the defendant, which was a firm of solicitors, and she asked for his
advice to get richer. The manager told her to sell her cottage and to call up the
amount of mortgage. She authorized the manager to sell the property and to
collect her money but he absconded with the money. Thus, she sued the
defendant company. It was held that the defendant was liable for the fraudulent
act of the manager because even a fraudulent act is not authorized, the manager
was authorized to take her signature and thus it was within the course of
employment.

Illustration: If A goes to a bank and deposits a check with C, an employee of

the bank and C fraudulently transfers that amount to his wife’s account. Here
for the fraudulent act of C, the bank will be liable.

Conclusion

Under Vicarious Liability a person can be held liable for the torts committed by
another person if that person shares a Master-Servant relation with him. The
servant does the act on behalf of his master and therefore the law of torts
provides that any wrongful act which is done in the course of employment by
the servant is bound to make the master liable for it. There have been several
tests for determining the relation of master and servant and the Court also
applies its discretion according to the facts of the case to determine such a
relationship.

Q2) What is ‘Vicarious Liability’?

Ans) Vicarious liability is a situation in which one party is held partly
responsible for the unlawful actions of a third party. The third party also carries
their own share of the liability. The word “vicarious” is used here to describe
the fact that the liability imposed is indirect.

Vicarious liability can arise in situations where one party is supposed to be

responsible for (and have control over) a third party and is negligent in carrying
out that responsibility and exercising that control.

An employer can be held liable for the unlawful actions of an employee, such as
harassment or discrimination in the workplace. An employer might also be held
liable if an employee operates equipment or machinery in a negligent or
inappropriate way that results in damages to property or personal injury.

For example, if a construction worker mishandles the controls of a crane and

topples the wall of a nearby building that was not slated to be worked on, then
the company overseeing the construction will likely face vicarious liability.
Likewise, if an engineer loses control of a train, and it proceeds down the tracks
on its own, then the company that owns and operates the train may face
vicarious liability for any damages and injury afflicted by the runaway
locomotive.
Even though the employer is not the one that committed the unlawful act, the
employer is held liable because they are:

 Responsible for their employees’ actions while they are on the job
 Able to prevent and/or limit any harmful acts performed by its employees

The employer may be able to avoid vicarious liability by exercising reasonable

care to prevent the unlawful behaviour.

Another common source of vicarious liability occurs when a child behaves

negligently. The parent can sometimes be held vicariously liable for the child’s
actions. One situation in which this might occur is if a child injures or kills
someone while driving. The parents can bear responsibility for allowing the
child to have access to the vehicle.
CH-3 NUISANCE

Q1) Define Nuisance [4]

Ans) A person in possession of a property is entitled to its undisturbed

enjoyment as per law. However, if someone else’s improper use or enjoyment in
his property ends up resulting into an unlawful interference with his enjoyment
or use of that property or of some of the rights over it, or in connection with it,
we can say that the tort of nuisance has occurred.

The word “nuisance” has been derived from the Old French word “nuire” which
means “to cause harm, or to hurt, or to annoy”. The Latin word for nuisance is
“nocere” which means “to cause harm”.

Nuisance is an injury to the right of a person’s possession of his property to

undisturbed enjoyment of it and results from an improper usage by another
individual.

According to Winfield, nuisance is incapable of exact definition but for the

purpose of law of tort, it may be described as unlawful interference with a
person's use or enjoyment of land or of some right over, or in connection with it

According to Salmond, nuisance consists in causing or allowing to cause

without lawful justification, the escape of any deleterious thing from one’s land
or from anywhere into land in possession of the plaintiff, such as water, smoke,
gas, heat, electricity, etc.

Q2) Distinguish between Private and Public Nuisance. [8]

Ans) Section 268 of Indian Penal Code defines Public Nuisance as “an act or
illegal omission which causes any common injury, danger or annoyance, to the
people in general who dwell, or occupy property, in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who may
have occasion to use any public right.

Private nuisance is the using or authorising the use of one’s property, or of

anything under one’s control, so as to injuriously affect an owner or occupier of
property by physically injuring his property or affecting its enjoyment by
interfering materially with his health, comfort or convenience.

The difference between Private and Public Nuisance are as follows:

 Private nuisance refers to disturbance or interference with the use or

private property while public nuisance refers to and act or condition that
hampers or endangers the health, safety or welfare of the general people.
 Private nuisance affects a specific individual or group of individuals
while public nuisance affects the entire community or a significant
portion of it.
 Private nuisance is typically addressed through civil lawsuit filed by the
affected individual or group while public nuisance is typically addressed
through criminal or administrative proceeding.
 Private nuisance is often the result of an intentional or negligent act while
public nuisance is often the result of an act that is not intended to cause
harm but does so as a result of its nature or location.
 Remedies for private nuisance may include an injunction to stop the
offending activity or the award of monetary damages. Remedies for
public nuisance may include fines, penalties or the abatement of the
offending activity.
  Examples of private nuisance include loid noise from a neighbor’s
property while examples of public nuisance include pollution of a water
source or illegal dumping of waste in a public area.

The concept of nuisance is almost an uncodified one. Yet it has grown and
expanded through interpretation and through a plethora of judgments. The
concept of nuisance is one that arises most commonly in a man’s daily life and
the decision regarding the same has to be delivered on a case-to-case base
ensuring that neither the aggrieved plaintiff goes back uncompensated nor the
defendant is punished unnecessarily. Indian Courts in the matters of nuisance
have borrowed quite intensively from the English principles as well as from the
decisions of the common law system along with creating their own precedents.
This has resulted in a sound system of law being developed that ensures fairness
and well-being of all i.e., the parties and the society at large.

Q3) Discuss the different kinds of Nuisance [8]

Ans) The different kinds of Nuisance are as follows:

Public Nuisance: Simply speaking, public nuisance is an act affecting the

public at large, or some considerable portion of it; and it must interfere with
rights which members of the community might otherwise enjoy. Thus, acts
which seriously interfere with the health, safety, comfort or convenience of the
public generally or which tend to degrade public morals have always been
considered public nuisance.

Public nuisance can only be subject of one action, otherwise a party might be
ruined by a million suits. Further, it would give rise to multiplicity of litigation
resulting in burdening the judicial system. Generally speaking, Public Nuisance
is not a tort and thus does not give rise to civil action.
In the following circumstances, an individual may have a private right of action
in respect a public nuisance.

 He must show a particular injury to himself beyond that which is suffered

by the rest of public i.e., he must show that he has suffered some damage
more than what the general body of the public had to suffer.
 Such injury must be direct, not a mere consequential injury; as, where one
is obstructed, but another is left open.
 The injury must be shown to be of a substantial character, not fleeting or
evanescent.

In Ram Raj Singh v. Babulal, AIR 1982 the plaintiff, a doctor, complained
that sufficient quantity of dust created by the defendant’s brick powdering mill,
enters the consultation room and causes discomfort and inconvenience to the
plaintiff and his patients.

The Court held it is clear the doctor has proved damage particular to himself.
And a permanent injunction was issued against the defendant restraining him
from running the brick grinding mill.

Private Nuisance: Private nuisance is the using or authorising the use of one’s
property, or of anything under one’s control, so as to injuriously affect an owner
or occupier of property by physically injuring his property or affecting its
enjoyment by interfering materially with his health, comfort or convenience.

In contrast to public nuisance, private nuisance is an act affecting some

particular individual or individuals as distinguished from the public at large.
The remedy in an action for private nuisance is a civil action for damages or an
injunction or both and not an indictment.

Elements of Private Nuisance Private nuisance is an unlawful interference

and/or annoyance which cause damages to an occupier or owner of land in
respect of his enjoyment of the land. Thus, the elements of private nuisance are:
1. unreasonable or unlawful interference:

2. such interference is with the use or enjoyment of land, or some right over, or
in connection with the land; and

3. damage.

Nuisance may be with respect to property or personal physical discomfort.

Q4) Discuss the defences for Nuisance [6]

Ans) There are many valid defences available to an action for tort, these are:

1. Prescription

 A prescription is a title acquired by use and time and which is allowed

by the law, a person claims any property because his ancestors have
had the possession of the property by law.

 Prescription is a special kind of defence, as, if a nuisance has been

peacefully and openly been going on without any kind of interruption
then the defence of prescription is available to the party. On the
expiration of this term of twenty years, the nuisance becomes
legalised as if it had been authorised in its commencement by a grant
from the owner of the land.

There are three essentials to establish a person’s right by prescription, these are

1. Use or enjoyment of the property: The use or enjoyment of the

property must be acquired by the individual by law and the use or
enjoyment must be done openly and peacefully.
 2. Identity of the thing/property enjoyed: The individual should be
aware of the identity of thing or property which he or she is peacefully
or publicly enjoying.

3. It should be unfavourable to the rights of another individual: The

use or enjoyment of the thing or property should be of such a nature
that it should be affecting the rights of another individual thus causing
a nuisance and even after knowing of such a nuisance being caused
there must’ve been no action taken against the person causing it for at
least twenty years.

2. Statutory authority

 When a statute authorises the doing of a particular act or the use of

land in a way, all the remedies whether by action or indictment or
charge, are taken away. Provided that every necessary reasonable
precaution has been taken.

 The statutory authority may be either absolute or conditional.

 When there is an absolute authority, the statue allows the act and it is
not necessary that the act must cause a nuisance or any other form of
injury.

 Whereas in the case where there is a conditional authority, the state

allows the act to be done only if it can be done without any causation
of nuisance or any other form of injury.
Q5) Mention the essential elements of Nuisance [8]
Ans) For making an act of nuisance actionable under the law of torts the
following essentials must be satisfied –
1) Unreasonable Interference: Interference may cause damage to the
plaintiff’s property or may cause personal discomfort to the plaintiff in
the enjoyment of the property. Every person must put up with some noise
some vibrations some smell or inconvenience etc. so that other members
of the society can enjoy their own rights.
In Ushaben vs Bhagyalaxmi Chitra Mandir, the plaintiff sued the
defendants for a permanent injunction to restrain them from exhibiting
the film “Jai Santoshi Maa”. It was contended that exhibition of that film
was a nuisance since the plaintiffs religious feelings were hurt as the
goddesses were depicted in a derogatory manner in the film.
It was held that hurt to religious feelings was not an actionable wrong.
Moreover, the plaintiffs were free not to watch the movie again. The
balance of convenience was considered to be in favor of the defendants
and as such here was no nuisance.
2) Interference with use or enjoyment of land: Interference may cause
either i) injury to the property itself or ii) injury to comfort or health of
occupants of certain property.
An unauthorized interference with the use of the property of another
person through some object, tangible or intangible, which causes damage
to the property, is actionable as nuisance. It may be by allowing the
branches of a tree to overhang on the land of another person, or the
escape of the roots of a tree, water, gas, smoke or fumes, etc. on to the
neighbor’s land or even by vibrations.
In St Helens Smelting Co v. tipping, fumes from the defendant
company’s works damaged plaintiff’s trees and shrubs. Such damage
being an injury to property, it was held that the defendants were liable.
The plea that locality was devoted to works of that kind was
unsuccessful.
 3) Damage: Unlike trespass which is actionable per se, actual damage is
required to be proved in an action for nuisance. In the case of public
nuisance, the plaintiff can bring an action in tort only when he proves a
special damage to him. In private nuisance, although damage is one of the
essentials, the law will often presume it.
In Fay v. Prentice, a cornice of the defendant’s house projected over the
plaintiff’s garden. It was held that the mere fact that the cornice projected
over the plaintiff’s garden raises a presumption of fall of rain water into
and damage to the garden and the same need not be proved. It was a
nuisance.

Q) Short note on Abatement of Nuisance [4]

Ans) Abatement of nuisance means the removal of a nuisance by the party who
has suffered, without any legal proceedings. This kind of remedy is not
favoured by the law. But is available under certain circumstances.

This privilege must be exercised within a reasonable time and usually requires
notice to the defendant and his failure to act. Reasonable for may be used to
employ the abatement, and the plaintiff will be liable if his actions go beyond
reasonable measures.

Example: Ace and Beck are neighbours. Beck has a poisonous tree on his land
which overtime outgrows and reaches the land of Ace. Now Ace has every right
to cut that part of the tree which is affect his enjoyment of his land with prior
notice to Beck. But if Ace goes to Beck, land without his permission, and chops
off the entire tree which then falls on the land of Beck, then Ace shall be in the
wrong here as his action taken would be beyond reasonableness.
CH-4 DEFAMATION

Q1) Define Defamation. [6]

Ans) A man’s reputation is considered valuable property and every man has a
right to protect his reputation. This right is acknowledged as an inherent
personal right and is a jus in rem i.e., a right good against all persons in the
world. Defamation refers to any oral or written statement made by a person
which damages the reputation of another person.

According to Salmond, Defamation is the publication of a false and defamatory

statement concerning another person without lawful justification.

As per Black’s Law Dictionary, defamation means “The offence of injuring a

person’s character, fame, or reputation by false and malicious statements”.

If the statement made is written and is published, then it is “libel”. If the

defamatory statement is spoken, then it is a “slander”.

Q2) Discuss the essential elements of defamation. [8]

Ans) The Elements of Defamation are as follows:

 The Statement should be made- A statement can be made by words

either spoken or intended to be read, or by signs or by visible
representations. For example, A is asked who stole B’s diamond ring.
A points to C, intending to cause everybody to believe that C stole the
diamond ring. This is defamation.

 The Statement must refer to the plaintiff- The defamatory statement

must refer to the plaintiff. The reference may be express or implied. It
is not necessary that the plaintiff has to be mentioned by name, if he
can still be recognized. The person referred to in the defamatory
statement can be living or dead, however, defamation suit on behalf of
 a dead person can be filed only if the person filing the suit has an
interest.

 The Statement must be defamatory- A defamatory statement tends

to diminish the good opinion that others hold about the person and it
has the tendency to make others look at him with a feeling of hatred,
ridicule, fear or dislike. Abusive language may also be defamatory, for
example, to call a man hypocrite or a habitual drunkard.

 Malicious intention of the wrongdoer- The person making the

defamatory statement knows that there are high chances of other
people believing the statement to be true and it will result in causing
injury to the reputation of the person defamed.

 The Statement should be false- A defamatory statement should be

false because the truth is a defence to defamation. If the statement
made is true then there is no defamation as the falsity of the statement
is an essential ingredient of defamation. The law does not punish
anyone for speaking the truth, even if it is ugly.

 The Statement should not be privileged- In some cases, the

statements may be privileged i.e. the person who has made the
statement is protected from such liability.

 The Statement must be published- For defamation to occur, the

statement should be published. The statement should be communicated
to a third party. Any statement written in a personal diary or sent as a
personal message does not amount to defamation, but if the sender
knows that it is likely that a third person may read it, then it amounts
to defamation. In Mahendra Ram v. Harnandan Prasad, the
defendant was held liable because he had sent a defamatory letter
 written in Urdu despite knowing the fact that the plaintiff could not
read Urdu and ultimately the letter will be read by someone else.

 The third party believes the defamatory matter to be true- The

other people of the society believe that the defamatory matter said
about the plaintiff is true.

 The Statement must cause injury- The statement made should harm

or injure the plaintiff in some way. For example, the plaintiff lost his
job because of the statement made.

Q3) Discuss the defenses for defamation. [12]

Ans) There are three defences of defamation namely –

1. Justification or truth:
Under criminal law, merely proving that the statement was true is no defence
but in civil law merely showing truth is a good defence. In Alexander v. North
Eastern Ry, the plaintiff had been convicted of riding a train from Leeds
without having purchased a valid ticket. The penalty was a fine and a period of
imprisonment of fourteen days if he defaulted on the fine. The defendant
published a notice that the plaintiff was convicted and issued a fine or three
weeks imprisonment if in default. The plaintiff alleged that the defendant had
committed libel by describing the penalty issued to him inaccurately. It was
held that the defendants were not liable, the statement being substantially
accurate.

2. Fair Comment:
Making fair comment on maters of public interest is a defence to an action for
defamation. For this defence to be available, the following essentials are
required:
i) It must be a comment i.e., an expression of opinion rather than assertion of
fact:

Comment means an expression of opinion on certain facts. It should be

distinguished from making a statement of fact. A fair comment is a defence by
itself whereas if it is a statement of fact that can be excused only if justification
or privilege is proved.

ii) The comment must be fair:

The comment cannot be fair when it is based upon untrue facts. A comment
based upon unvented and untrue facts is not fair. Thus, if in a newspaper, there
is publication of a statement of facts making serious allegations of dishonesty
and corruption against the plaintiff, and the defendant is unable to prove the
truth of such facts, the plea for fair comment cannot be taken.

iii) The matter commented upon must be of public interest:

Administration of Govt. departments, public companies, courts, conduct of

public men like ministers or officers of State, public institutions and local
authorities, etc are considered to be matters of public interest.

3. Privilege:

There are certain occasions when the law recognizes that the right of free
speech outweighs the plaintiff’s right to reputation, the law treats such
occasions to be privileged and a defamatory statement made on such occasions
is not actionable. Privilege is of two kinds: Absolute privilege and Qualified
privilege. In matters of Absolute privilege, no action lies for the defamatory
statement even though the statement is false or has been made maliciously.
Defamation is a civil wrong or tort that occurs when a person makes a false
statement about another person, which causes harm to their reputation. In such a
case, the person who is defamed can seek compensation for the damage done to
their reputation. However, there are several defences available for defamation
under the law of torts. In this answer, I will discuss the defences for defamation
in detail.

Truth: The most common defence to defamation is truth. If the statement made
about a person is true, it cannot be considered defamatory. To use this defence,
the defendant must prove that the statement is true, and this can be done by
producing evidence to support the claim.

Absolute privilege: This defence is available to individuals who are protected

by law or who have a legal duty to make certain statements. For example,
statements made by members of parliament or judges during court proceedings
are protected by absolute privilege, and cannot be considered defamatory, even
if they are false.

Qualified privilege: This defence applies to statements made in good faith and
for a legitimate purpose, such as in the public interest or for the protection of
someone's rights. The defence may be used if the statement was made without
malice or ill-will, and the defendant reasonably believed that the statement was
true and made it in the interest of the public.
Fair comment: This defence is available to individuals who express an opinion
about a matter of public interest. The comment must be based on facts that are
true or are believed to be true, and the comment must not be motivated by
malice. The comment must also be a matter of public interest, such as political
or social issues, and not a personal matter.

Innocent dissemination: This defence applies to individuals who unknowingly

disseminate defamatory material. For example, a bookseller who sells a book
containing defamatory material may not be held liable for defamation, as long
as they did not know that the book contained defamatory material.

Consent: If the person who is allegedly defamed has given their consent to the
statement, then it cannot be considered defamatory. However, the consent must
be given voluntarily and with full knowledge of the consequences.

In conclusion, there are several defences available for defamation under the law
of torts, including truth, absolute privilege, qualified privilege, fair comment,
innocent dissemination, and consent. It is important to note that the defences
available may vary depending on the jurisdiction, and it is recommended to seek
legal advice if you are facing a defamation claim.
In the principle of vicarious liability, the master is held responsible
for the wrongful acts committed by his/her servants while performing
their duties. This doctrine is based on the idea that the master has
control over the actions of his/her servants and should, therefore, be
responsible for their actions. The liability of the master is limited to
acts done in the course of employment and not those done outside the
scope of employment. In this article, we shall classify the acts of the
servant for which the master is liable on the principle of vicarious
liability.

Acts of Negligence:

Negligence is a failure to exercise the level of care that a reasonable

person would have exercised under the same circumstances. If a
servant, while performing his/her duties, fails to exercise reasonable
care, and this results in injury to a third party, the master is liable. For
example, if a delivery driver hits a pedestrian while driving recklessly,
the employer would be liable for the damages caused by the driver.

Acts of Misrepresentation

If a servant makes a false statement or misrepresents the truth while

carrying out his/her duties, the employer is held liable. For instance, if
a sales representative makes false promises to a customer and the
customer suffers financial loss as a result, the employer is responsible
for the damages caused.
Acts of Assault:

If a servant assaults a third party while performing his/her duties, the

employer is liable. For example, if a bouncer at a club assaults a
patron while trying to control the crowd, the employer is responsible
for the damages caused by the bouncer.

Acts of Defamation:

If a servant defames a third party while performing his/her duties, the

employer is held liable. Defamation is the communication of a false
statement that harms the reputation of an individual. For instance, if a
journalist publishes a defamatory article about a person, the employer
may be held liable for the damages caused by the article.

Acts of Conversion:

Conversion is the act of wrongfully taking or using another person's

property without their consent. If a servant takes or uses another
person's property without their consent while performing his/her
duties, the employer is liable. For example, if a moving company
employee steals a customer's property while packing the customer's
items, the employer is held responsible for the damages caused by the
employee.

Acts of Trespass:

If a servant enters the property of a third party without their consent

while performing his/her duties, the employer is held liable for any
damages caused. For example, if a delivery driver enters a private
property without the owner's consent and causes damage to the
property, the employer may be held liable.

In conclusion, the principle of vicarious liability holds the master

responsible for the wrongful acts of the servant committed while
performing their duties. The employer is held liable for acts of
negligence, misrepresentation, assault, defamation, conversion, and
trespass. However, the employer is not liable for acts committed by
the servant outside the scope of employment. It is, therefore,
important for employers to provide training to their employees and
monitor their activities to minimize the risks of liability.