Unit-6 Specific Torts

Nuisance: Interference with Use and Enjoyment of Property

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.
Definition Of Nuisance
The Nuisance is defined in various words by many authors:
 Stephen:
To be anything done to the hurt or annoyance of the lands, tenement or hereditaments of another, and not
amounting to a trespass.
 Blackstone:
Nuisance asxsome thing that worked hurt, inconvenience or damage.
 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.
 Salmond:
The wrong of nuisance consists in causing or allowing without lawful justification but so as to common to trespass
the escape of any dexterous thing from his land or from elsewhere into land in possession of the plaintiff e.g. Water,
smoke, smell, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals.
 Clark and Lindsell:
Nuisance is an act or omission which is an interference with disturbance of or annoyance to a person in the exercise
or enjoyment of:
a. Right belonging to him as a member of public when it is a public nuisance, or
b. His ownership or occupation of land, or some easement, quasi easement, or other right used or enjoyed in
connection with land, when it is private nuisance.
Essential elements of Nuisance
Wrongful act
Any act which is done with the intention to cause the infringement of the legal rights of another is considered to be a
wrongful act.
Actual Damage or loss or annoyance caused to another individual.
Damage or loss or annoyance must be such which the law should consider as a substantial material for the claim.
Kinds of Nuisance
1. Public Nuisance
The Indian Penal code defines nuisance as an act which causes any common injury, danger or annoyance, to the people
in general who dwell or occupy the property, in the vicinity, or which must necessarily cause injury, obstruction, danger,
or annoyance to the people who may have occasion to use any public right.
Public nuisance affects the society and the people living in it at large, or some considerable portion of the society and it
affects the rights which the members of the society might enjoy over the property. The acts which seriously affects or
interferes with the health, safety or comfort of the general public is a public nuisance.
Instances where an individual may have a private right of action in respect to a public nuisance:
 He must show the existence of any personal injury which is of a higher degree than the rest of the public.
 Such an injury has to be direct and not just a consequential injury.
 The injury must be shown to have a huge effect.
Important Cases
In Solatu v. De Held, the plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the
priest and the chapel bell was rung at all hours of the day and night. It was held that the ringing was a public nuisance
and the plaintiff was held entitled to an injunction.

In Leanse v. Egerton, The plaintiff, while walking on the highway was injured on a Tuesday by glass falling from a window
in an unoccupied house belonging to the defendant, the window having been broken in an air raid during the previous
Friday night. Owing to the fact that the offices of the defendant's agents were shut on the Saturday and the Sunday and
to the difficulty of getting labour during the week end, no steps to remedy the risk to passers by had been taken until the
Monday. The owner had no actual knowledge of the state of the premises.
It was held that the defendant must be presumed to have knowledge of the existence of the nuisance, that he had failed
 to take reasonable steps to bring it to an end although he had ample time to do so, and that, therefore, he had
continued it and was liable to the plaintiff.
.

In Attorney General v. P.Y.A. Quarries, In an action at the instance of the Attorney General, it was held that the nuisance
form vibration causing personal discomfort was sufficiently widespread to amount to a public nuisance and that
injunction was rightly granted against the quarry owners restraining them from carrying on their operations.
2. Private Nuisance (Interference with the use and enjoyment of property)
Private Nuisance is that kind of nuisance in which a person’s use or enjoyment of his property is ruined by another. It
may also injuriously affect the owner of the property by physically injuring his property or by affecting the enjoyment of
the property. Unlike public nuisance, in private nuisance, an individual’s usage or enjoyment of property is ruined as
distinguished from the public or society at large. The remedy for private nuisance is a civil action for damages or an
injunction or both.
Elements which constitute a private nuisance
1) The interference must be unreasonable or unlawful. It is meant that the act should not be justifiable in the eyes of
the law and should be by an act which no reasonable man would do.
An act of nuisance can be proved only in the situation where someone unlawfully or without any cause which is
reasonable in nature interferes with the peaceful enjoyment of plaintiffs in his property. Thus the cases where
someone under legal authority ends up causing the offence of nuisance while carrying on the authorized work, he
would not be held liable.
2) Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be
in connection with the property or physical discomfort.
Every person has a right so that he can peacefully enjoy his property. This law is in place to protect such rights only.
In the case of Datta Mal Chiranji Lal v. Lodh Prasad where the plaintiff was not able to enjoy peacefully in his house
due to the excessive noise produced by the electric mill installed by the defendants, it was held that the plaintiff has
a right to the action.
3) There must be some damage suffered by the plaintiff. There should be seeable damage to the property or with the
enjoyment of the property in order to constitute a private nuisance.
The damage here can be to the property or the plaintiff in the form of physical discomfort. In the cases where
damage is done to the property, any sensible injury would be enough to support an action. In the case of St. Helen
Smelting Co. v. Tipping[8] where the fumes from the defendant’s manufacturing industry damage the trees and
shrubs present in plaintiff’s land, it was held to be sufficient amount of damage to the property.
In Dilware v. Westminister City Council,[9] the roots of the respondent’s tree caused a crack to the neighbor’s
building. The neighbor in the present case was allowed to claim compensation for the damage caused to his
property.
Case Law: Rose v. Miles(1815) 4M &S. 101
The defendant had wrongfully obstructed a public navigable creek which obstructed the defendant from
transporting his goods through the creek due to which he had to transport his good through land because of which
he suffered extra costs in the transportation. It was held that the act of the defendant had caused a public nuisance
as the plaintiff successfully proved that he had incurred loss over other members of the society and this he had a
right of action against the defendant.
A nuisance may be in respect of either property or physical discomfort
1. Property
In the case of a nuisance with respect to the property, any sensible injury to the property will be enough to support
an action for the damages.
2. Physical discomfort
In a suit of nuisance arising out of physical discomfort, there are two essential conditions required.
 In excess of the natural and ordinary course of enjoyment of the property.
The usage by the third party should be of out of the natural course of enjoyment from one party.
 Interfering with the ordinary conduct of human existence.
The discomfort should be of such a degree that it would affect an individual in the locality and people would not be
able to put up or tolerate with the enjoyment.
Case Law: Radhey Shyam v. Gur Prasad AIR 1978 All 86
Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and five other individuals for permanent
injunction restraining the defendant from installing and running a flour mill in the premises occupied by the defendant.
Gur Prasad Saxena filed another suit against Radhey Shyam and five other individuals for a permanent injunction from
running and continuing to run an oil expeller plant. The plaintiff has alleged that the mill was causing a lot of noise which
in turn was affecting the health of the plaintiff. It was held that by running a flour mill in a residential area, the defendant
was causing a nuisance to the plaintiff and affecting his health severely.
 Remedies for Nuisance
The following remedies are available for nuisance-
Injunctions
It is one of the most important remedy available in the cases of nuisance, which is discretionary in nature. Being a
discretionary remedy it is upon the court to exercise its discretion whether to grant such or not, though court must
always act judicially while deciding so.
In the case of Miller v. Jackson plaintiff constructed his house near the cricket playground. When he complained
about the nuisance from a cricket ball, the court refused to give him the remedy of an injunction because firstly he
must have known about the existence of such ground, and secondly, the court considered the interest of the entire
village by having a ground to play.
The court can issue a temporary injunction that is interim in nature. Such a temporary injunction can either be
confirmed or reversed. The cases where it is confirmed, it becomes a permanent injunction.
Damages
Damages are monetary compensation given to the plaintiff. It could be nominal damages (which is simply given to
recognize the harm suffered by the plaintiff) or statutory damages (which is given as per a statutory law) or
exemplary damages (which is given to set an example for everyone so that such is not repeated in future).
Abatement
This is a self-help remedy, where the injured person doesn’t take a legal course to seek a remedy. This remedy is
usually not advisable as even courts do not favor it. One such example of this kind of remedy is where the plaintiff
himself cuts the branches of the tree of the defendant which causes him a nuisance.
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.
Negligence: Essential Elements- (i) Duty to take care, (ii) Breach of Duty and (iii) Damages
Introduction
The term Negligence is derived from the Latin word “negligentia”, which means “failing to pick up”. In general sense, the
term negligence means the act of being careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular situation. Negligence is a breach of duty
of care caused by the omission to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable man would not do. It
consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The basic
understanding of negligence is that wrong-doer or the defendant has been careless in a way that harms the interest of
the victim or the claimant.
For example, when the defendant carries out and act of constructing something on her premises, she owes a duty of
care towards the claimant and that the standard of duty of care depends on-
a) Whether the claimant was on the site or in the neighborhood, as well as
b) Whether the claimant was a lawful visitor or a trespasser.
The definition involves three constituents of negligence:-
1. A legal duty to exercise due care on part of the party complained of towards the party complaining the former’s
conduct within the scope of the duty.
2. Breach of the said duty.
3. Consequential damage It can be further be explained under the essentials of negligence.
Essentials of Negligence
Generally, in order to prove successfully that the defendant has been negligent, the victim of the claimant must establish
three essential elements against the defendant in a tort of negligence case-
1. Duty of Care- The defendant owes a duty of care to the victim
2. Breach of Duty of Care- There has been a breach of duty of care on part of the defendant
3. Harm to the Claimant- The breach of the duty of care resulted in the harm suffered by the claimant.
These three essential elements are explained further below.
1. Duty of Care
It is one of the essential conditions of the negligence in order to make the person liable. It means that every person
owes, a duty of care, to another person while performing an act. Although this duty exists in all acts, but in negligence,
the duty is legal in nature and cannot be illegal or unlawful and also cannot be of moral, ethical or religious nature. The
plaintiff has to establish that the defendant owed to him a specific legal duty to take care, of which he has made a
breach. There is no general rule of law defining such duty. It depends in each case whether a duty exists.
In Donoghue v. Stevenson, Lords Atkin said, “It is remarkable, how difficult it is to find in the English authorities
statements of general application defining the relations between parties that give rise to the duty. The courts are
concerned with the actual relations which come before them in actual litigation, and it is sufficient to say whether the
duty exists in those circumstances.
The result is that the courts have been engaged upon an elaborate classification of duties as they exist in respect of
property, whether real or personal, with further divisions as to ownership, occupation or control and distinctions based
on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant,
stranger, and so on. In this way, it can be ascertained at any time whether the law recognizes a duty, but only where the
case can be referred to some particular species which has been examined and classified.”
In the case of Stansbele vs Troman(1948), A decorator was engaged to carry out decorations in a house. Soon after The
decorator left the house without locking the doors or informing anyone. During his absence, a thief entered the house
and stole some property the value of which the owner of the house claimed from the decorator. It was held that the
decorator was liable as he was negligent in leaving the house open and failed his duty of care.
2. Breach of Duty of Care
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must also establish that the
defendant breached his duty to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in
fulfilling the duty. In other words, the breach of a duty of care means that the person who has an existing duty of care
should act wisely and not omit or commit any act which he has to do or not do as said in the case of Blyth v.
Birmingham Waterworks Co, (1856). In simple terms, it means non-observance of a due care which is required in a
particular situation. The standard is that of a reasonable man or of an ordinarily prudence man. If the defendant has
acted like a reasonably prudent man, there is no negligence.
In the case of Ramesh Kumar Nayak vs Union of India(1994), The post authorities failed to maintain the compound wall
of a post office in good condition on the collapse of which the defendant sustained injuries. It was held that postal
authorities were liable since that had a duty to maintain the post office premises and due to their breach of duty to do
so, the collapse occurred. Hence they were liable to pay compensation.
In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966), A very old clock tower situated right in the
middle of a crowded area of Chandni Chowk suddenly collapsed thereby causing the death of many people. The clock
tower was 80 years old although the normal life span of the clock tower should have been 40-45 years. The clock tower
was under the control of The Municipal Corporation of Delhi and they had a duty of care towards the citizens. By
ignoring to repair the clock tower, they had breached their duty of care toward the public and were thereby liable
In the case of Bishwa Nath Gupta v. Munna, the driving of the truck at a speed of 10 to 12 miles per hour was held to be
negligent when the children playing on a road were visible to the driver and he could anticipate that some of them may
cross the road on seeing the approaching truck. The duty in such a case was to drive so slow that in case of necessity the
vehicle could be immediately stopped.
3. Damage
Proving that the defendant failed to exercise reasonable care is not enough. It should also be proved that the failure of
the defendant to exercise reasonable care resulted in damages to the plaintiff to whom the defendant owed a duty of
care. When such damage is proved, the defendant is bound to compensate the plaintiff for the damages occurred.
In the case of Joseph vs Dr. George Moonjely(1994), The Kerela high court awarded damages amounting to Rs 1,60,000
against a surgeon for performing an operation on a 24-year-old girl without following proper medical procedures and not
even administering local anesthesia.
Proof of Negligence
Res Ipsa Loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.” It is considered to be a type of circumstantial
evidence which permits the court to determine that the negligence of the defendant led to an unusual event that
subsequently caused injury to the plaintiff. As a general rule, it is for the plaintiff to prove that the defendant was
negligent. The initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily
on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of
inevitable accident or contributory negligence on the part of the plaintiff. If the plaintiff is not able to prove negligence
on the part of the defendant, the defendant cannot be made liable.
As observed by Lord Wensleydale in Morgan v. Sim, The party seeking to recover compensation for damage must make
out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must
show that the loss is to be attributed to the negligence of the opposite party. If, at the end, he leaves the case in even
 scales, and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot
succeed.
This doctrine arose out of the case of Byrne vs Boadle(1863), The plaintiff was walking by a warehouse on the road and
suffered injuries from a falling barrel of flour which rolled out of a window from the second floor. At the trial, the
plaintiff’s attorney argued that the facts spoke for themselves and demonstrated the warehouse’s negligence since no
other explanation could account for the cause of the plaintiff’s injuries.
Thus the following are the three essential requirements for the application of this maxim-
1. The thing causing the damage must be under the control of the defendant or his servants
2. The accident must be such as would not have happened in the ordinary course of things without negligence.
3. There must be no evidence of the actual cause of the accident.
In Pushpabai v. Ranjit Ginning and Pressing Co., while the manager of the respondent company was driving the car,
there was an accident causing the death of another employee of the respondents, who was allowed to take lift in the car.
The width of the road on which the car was going was 15 feet, with fields on either side. It was found that the car had
proceeded to the right extremity of the road and dashed against a tree uprooting it about 9 inches from the ground. The
front side of the car was badly damaged, the engine and the steering wheel were displaced from their position. The
maxim res ipsa loquitur was applied to this case by the Supreme Court, as the car could not have gone on the wrong side
of the road to the right extremity and hit the tree with such violence if the driver had exercised reasonable care and
caution. The respondents could not rebut the presumption of negligence and they were held liable.
In Madhya Pradesh State Board Transport Corporation v. Sudhakar, a bus belonging to the appellants while going on a
clear and visible road at a speed of 50 miles went off the road. It first dashed against a tree which was uprooted and
then dashed against another tree by which it toppled down causing the death of some of the passengers and injuries to
some others. It was held that the circumstances and the apparent facts relating to the accident are consistent with the
theory of rash and negligent driving on the part of the bus driver and the doctrine of res ipsa loquitur was, therefore,
applicable to the circumstances of the case.
In Narasappa v. Kamalamma, a contractor under an agreement with the State Electricity Board undertook to construct
a building which involved the causing of a reinforced cement concrete beam 60 feet in length. Two stone pillars were
erected on which the beam was supposed to rest. After the casting of 45 feet of the beam had been completed and
when the top layer regarding the remaining 15 feet was being laid, the beam suddenly came down pulling down one of
the two stone pillars on which it was supposed to rest. Three workmen were killed as a consequence thereof. The
management had control of the thing, i.e., the circumstances surrounding the thing which caused the accident were in
the hands of both the contractors and the Electricity Board. The contractors had the actual responsibility to construct
and the Electricity Soard had the power to direct the manner and the time within which the work was to be done. The
rule of res ipsa loquitur was applied to the case and on the basis of the same, negligence was inferred and for that both
the contractor and the Board were held liable.
Rebuttal of the presumption of negligence
The rule of res ips loquitur only shifts the burden of proof and instead of the plaintiff proving negligence on the part of
the defendant, the defendant is required to disprove it. If the defendant is able to prove that what apparently seems to
be negligence was due to some factors beyond his control, he can escape liability.
In Nagamani v. Corporation of Madras, a ventilator iron post, on a pavement, belonging to the Madras Corporation fell
for unknown reasons on a passerby causing head injuries and ultimate death of the person. The presumption of
negligence on the part of the Corporation was raised but the Corporation was able to rebut the presumption by proving
that the steel column which had fallen had been erected only 30 years ago whereas it had a normal life of 50 years, such
columns were securely fixed on a cement pavement in an iron socket sunk three feet deep and that occasional
inspection of the pillar including one made a month before the accident had indicated no signs of such danger. The
Corporation, therefore, was held not liable.

Donoghue v. Stevenson
Facts of the case
1. On August 26 1928, Mrs. Donoghue’s friend bought her a ginger-beer from Wellmeadow Café in Paisley.
2. She poured some of the contents in a tumbler and she consumed about half of the bottle
3. The bottle was made of dark opaque glass and closed with a metal cap, so that the contents could not be
ascertained by inspection.
4. When the remaining of the contents of the bottle were poured into her tumbler. At this point, the decomposed
remains of a snail floated out with her ginger-beer.
5. The appellant alleged that she seriously suffered in her health in consequence of having drunk a part of
contaminated contents, causing her alleged shock and severe gastro-enteritis.
Mrs. Donoghue was not able to claim through breach of warranty of a contract, she was not party to any contract.
Therefore, she issued proceedings against Stevenson, the manufacture, which snaked its way up to the House of Lords.
Issues in Donoghue v Stevenson
The question for the HoL was if the manufacturer owed Mrs Donoghue a duty of care in the absence of contractual
relations contrary to established case law. Donoghue was effectively a test case to determine if she had a cause of
action, not if she was owed compensation for any damages suffered.
The law of negligence at the time was very narrow and was invoked only if there was some established contractual
relationship.
Absent a contract, a manufacturer owed no duty of care to a consumer when putting a product on the market except:
a. If the manufacturer was aware that the product was dangerous because of a defect and it was concealed from
the consumer (i.e., fraud).
b. The product was danger per se and failed to warn the consumer of this.
Judgement
The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious
matter, and that he would be liable on the breach of the duty.
According to Lord Atkin : "A manufacturer of products, which he sells in such a form as to show that he intends them to
reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate
examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the
products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable
care."
The decision has several components: first, negligence is distinct and separate in tort; second, there does not need to be
a contractual relationship for a duty to be established; third, manufacturers owe a duty to the consumers who they
intend to use their product.
Essential Elements of Negligence
There were all three essential elements present in this case:-
Duty of Care
In this English case of Donoghue u Stevenson, the claimant Donoghue drank a soft drink manufactured by the defendant
Stevenson. The drink had a decomposed snail in the bottle that made the claimant ill) The court held that the
manufacturer owed duty of care to those who are reasonably foreseeable' to be affected by the product. So the duty of
care is owed to those whom one can reasonably foresee as being potentially harmed. This principle is applicable to
numerous fact situations as another example, a landlord owes a duty of care with reasonable foresight to his tenants
and should ensure that no hazardous substance like petrol is stored by him in the basement of the apartment being
dwelt by the tenants.
Breach of Duty of Care
Once the duty of care is proven the claimant then must establish that the duty of care was broken; i.e., the defendant
was unsuccessful in fulfilling the duty of care in accordance with the standard of 'reasonableness'. The standard is that of
reasonable conduct' or 'reasonable foresight', however, the act need not be flawless. In the case of Donoghue v
Stevenson above, the court held that the manufacturers of products owe a duty of reasonable care to the consumers
who use the products. Similarly, the standard of duty of reasonable care will vary based on the peculiar fact situation of
every case.
Harm to the Claimant
In the case of Donoghue v. Stevenson, the negligence on part of the manufacturer of the soft drink resulted in the illness
or injury to the claimant. Or, in the second example, the apartment catches fire because of petrol being stored in the
basement causing damage to the tenants.
Professional Negligence
Negligence, in common terms, means carelessness. The most common professionals who face this type of negligence:
Bankers, Manufactures, Repairers and Builders, Physicians and Surgeons, Solicitors, Counsel, Directors of Companies,
Carriers, Innkeepers and Hotelkeepers. The negligence committed by these professionals is known as Professional
Negligence. It becomes professional negligence when the responsibilities of a professional fail to reach a standard level.
The practice of a profession or art which requires some special experience, skill, and ability by carrying a reputation for
that practice to the extent is required.
Professional negligence is a very complicated area of law, it takes place when a professional breaks down to perform his
responsibilities to a required standard. Before defending a claim including allegations of professional negligence, there
should be a sought of legal advice in all the cases.
A failure to carry out the required standard represents a breach of contract. To claim for negligence and for breach of
contract, there are some important differences especially to the one relating to the remedy that can be sought. While
discussing any claim with a legal advisor this should be considered. Professional negligence may include compensation
for loss incurred to the plaintiff by the defendant’s act of negligence.
Negligence by medical professionals
The negligence made by the surgeons or physicians is termed as medical negligence. A surgeon should not be in a belief
that he will undertake a particular operation of a patient or that he will discharge a cure for that only. He should not just
undertake to use the highest possible degree of skill but should undertake any operation to bring a competent, fair, and
reasonable degree of skill.
While filing a suit against a doctor, the plaintiff i.eThe patient should take the responsibility of proving that the
defendant was negligent and he suffered with the injury caused due to the defendant’s negligence. For the appropriate
remedy to prove the doctor’s negligence, the plaintiff should provide evidence and file a civil suit for compensation as a
writ petition under Article 226 of the Constitution. When a doctor is being consulted by a patient, the doctor owes him
certain duties like duty of care:
1. in whether he can undertake the case,
2. in deciding what treatment to give,
3. in administration of the treatment.
The patient gets right to take an action against the doctor when any of these duties were breached. The preference of
choosing which kind of treatment should be given is available for a doctor like which way of treatment he wants to give
to the patient and such preference is also should be applicable in case of emergencies. The doctor has to bring to his
task a reasonable degree of knowledge and skill and must perform with a reasonable degree of care.
Negligence by manufactures, builders and repairers
The manufacturer owes a duty of care to all the customers who are expected to use his products. In case, if the products
which are dangerous like those which are defective that may cause extensive harm, then the duty can be owned to
anyone who will reasonably be affected by the defect in the product. So, it means that the negligence claim is not limited
by the doctrine of privity of contract, which states that to a contract only one party can sue. Only manufactures are not
liable, also those who supplied or distributed products are also liable. The negligence of manufacture can be of:
1) During the process of manufacturing, lack of duty care which may result as a defective product,
2) During the product designing lacking duty of care which subjects to failure of carrying careful research out,
3) Failing in conducting the tests effectively,
4) Failing of providing danger warnings effectively,
5) Failing to recall a product or issuing warnings appropriately if any danger becomes apparent after circulation
of the product.
It may restrict effectiveness in claiming product liability as only the manufacturer can be held liable for lacking
reasonable care which resulted in injuring the party. So, this party should be able to prove it and this may be expensive
and difficult. In few cases, which are concerned with defects made by the manufactures, the party which got injured can
rely upon res ipsa loquitur. It is difficult to avoid the liability unless the plaintiff can show how the negligence took place.
The manufacturers are responsible to show how they took responsibility to provide safe products with good quality by
avoiding defective goods and also the reasonable care of employees in the manufacturing process.
When the complaint is about negligence of designing the product, then the position of the party that got injured will be
weaker. To impose liability for negligence of design by the manufacturers, the courts may be reluctant. Also, the injured
party faces difficulty in linking the negligence of the defendant and the loss he incurred.
Building projects requires a greater number of professionals and each one plays a different role in the process where
everyone is responsible for duty of care and skill. Sometimes there will be arguments between the professionals and
non-professionals regarding contribution and contributory fault. Also, sometimes local authorities have involvement in
the construction projects.
Negligence by solicitors
A solicitor will be held liable for the outcomes of non-observance or ignorance of the rules of practice of the court. He
will also be liable for the lack of requirement of care in the preparation of the cause for trial and for the mismanagement
of the conduct of a cause that is usually administered to the profession of his department. A suit can be filed for
damages against a solicitor on the ground that he failed to lodge and prosecute an appeal because if he would have
done without negligence, then his client may get justice.
A solicitor is liable for the negligence act in case the client proves that the act resulted in the loss of the cause, like
allowing a claim to be barred by limitations or struck out for failure to apply for a trial date within the prescribed period.
For the negligent act of his partner or agent, the solicitor will also be held liable.
Negligence by bankers
As per Section 5(b) of the Banking Regulation Act, 1949, banking means ‘the accepting, for the purpose of lending or
depositing investments of money from the public and repayable on demand or otherwise and withdrawable by draft,
cheque, and order or otherwise. To sum up, a banker is who: takes current and deposit accounts; pays and issues
cheques; for his customers collects crossed and uncrossed cheques.
Liabilities of bankers for negligence are not at par with private individuals. The public institution’s priority in general
belongs to the society. No particular individual is interested in securing it. The affairs of public institutions are managed
by paid employees in whom few are only interested in their salaries. An agent who is signing a promissory note on his
name, cheque or bill of exchange without indicating and later he signs as agent, or if he does not intend later to incur
personal responsibility will be held liable personally except to those who had induced him to sign upon the belief that
the principal only would be held liable.
The money kept in the hands of the bankers by customers of the bank for the casual purposes of the banking; they are
the persons of skills and as persons worthy of trust. Their duty is to respect the payment of their customer’s cheque, to
honor them to any amount not exceeding the credit balances. A failure in commissioning leads to negligence and would
be liable to damages which might include for injury to the credit of the customer.
A banker if commits a negligent act will be held liable vicariously, and also the bank will be held liable if its employees
are done in the course of employment. They are also liable for negligence in paying forged cheques. If the banker issues
bank drafts without the authority in accordance with the customer’s instructions against valid cheques of the customer
owing to the fraud of the customer’s servant, he will be liable for damages. Also, if he delivers the goods or money to a
wrong person, which he received on behalf of the customer then the liability of the banker is absolute, though there is
no element of negligence.
Contributory negligence
Contributory negligence basically means ignorance from both the parties involved. If a person is driving a car without
any breaks met with an accident with another person who was driving on the wrong side of the road. This results in
contributory negligence. It’s a defence available to the defendant in case of contributory negligence which prevents the
plaintiff to get compensation.
Contributory negligence is the ignorance of due care on the part of the plaintiff to avoid the consequences of the
defendant’s negligence. This concept is loosely based on the maxim- “Volenti non fit injuria” (injury sustained
voluntarily). It means If a person is not taking due diligence in order to avoid consequences resulting out from the
negligence of the defendant the liability of negligence will be on both of them.
Principles of contributory negligence
 If the plaintiff is himself negligent for taking due care in order to avoid consequences and becomes the direct cause
of the damages, he is not entitled to receive any compensation.
 If both the plaintiff and the defendant have taken reasonable measure and ordinary care to such extent where they
both wanted to avoid such consequences then the plaintiff can’t sue the defendant.
The burden of proving contributory negligence
The burden of proof lies over the defendant. In order to get the defence of contributory negligence, the defendant must
prove that the plaintiff is responsible as him, and ignored due diligence which could have avoided such consequences
arising from the negligence of the defendant.
Great central rly. V. Bates(1940) 3 All.E.R.399
The plaintiff sustained injuries as he fell down from the shaft of the lift because he went backwards opened the doors
and stepped through it assuming that the lift would still be in place.
He was guilty of contributory negligence and therefore was not entitled to recover compensation for the damages
sustained.
Hansraj v. Tram CO., 35 Bom.478
A attempted to board a moving tramcar and end up getting injured. He sued the company. It was held that if he would
have boarded in a tramcar, not in motion, it would have been easier for him to get a firm grip in the handlebar and settle
down easily. The company was not held liable.
Defenses available in a suit for negligence
1. Contributory negligence by the plaintiff
Contributory negligence means that when the immediate cause of the damage is the negligence of the plaintiff
himself, the plaintiff cannot sue the defendant for damages and the defendant can use it as a defense. This is
because the plaintiff in such a case is considered to be the author of his own wrong. It is based on the maxim volenti
non fit iniuria which states that if someone willingly places themselves in a position which might result in harm, they
are not entitled to claim for damages caused by such harm.
The plaintiff is not entitled to recover from the defendant if it is proved that-
1)The plaintiff by the exercise of ordinary care could have avoided the consequence of the defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants part and the former
cannot sue the latter for the same.
The burden of proving contributory negligence rests on the defendant in the first instance and in the absence of
such evidence, the plaintiff is not bound to prove its non-existence
In the case of Shelton Vs L & W Railway(1946), while the plaintiff was crossing a railway line, a servant of the railway
company who was in charge of crossing shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear
the warning and was consequently injured. The court held that this amounted to contributory negligence by him.
2. An Act of God
This particular defence was talked in the case of Nichols v. Marsland (1876) in which the defendant had a series of
artificial lakes on his land. There had been no negligence on the part of the defendant in the construction and
maintenance of the artificial lakes. Due to unpredictable heavy rain, some of the reservoirs burst and swept away
four country bridges. It was held by the court that the defendant could not be said to be liable since the water
escaped by the act of God.
3. Inevitable Accident
An inevitable accident can also be called as a defense of negligence and refers to an accident that had no chance of
being prevented by the exercise of ordinary care, caution, and skill. It means a physically unavoidable accident.
In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were fighting and their owners attempted to
separate them. In an effort to do so, Defendant beat the dogs with a stick and accidentally injured the Plaintiff,
severely injuring him in the eye. The Plaintiff brought suit against the Defendant for assault and battery. It was held
that the injury of the plaintiff was as a result of an inevitable accident.
Nervous shock
Nervous shock in torts describes a psychological injury or emotional distress that a person suffers due to the negligent or
intentional actions of another party. In tort law, there are several elements that must be established to make a successful
claim for nervous shock, which is sometimes also referred to as “emotional distress” or “psychological harm.”
The specific legal principles and elements required can vary by jurisdiction, but there are common themes.
What is Nervous Shock?
Nervous shock in tort refers to a mental illness or injury resulting from the intentional, negligent or reckless actions or
omissions of another person. It typically occurs when an individual has a genuine fear of suffering immediate personal
harm. This type of shock often manifests as a psychological condition brought on by witnessing a traumatic event, such
as an accident involving one’s family members or spouse.
Despite criticisms that the term is inaccurate and misleading, “nervous shock” continues to be used as a convenient
shorthand for a complex legal concept. In English law, there are strict limitations on the amount of compensation that
can be sought for nervous shock, especially when it arises from negligence.
Who can bring a Nervous Shock Claim?
A nervous shock in tort claim can be brought by an individual who has been diagnosed with a genuine mental illness
resulting from an event that the defendant should have reasonably anticipated could cause such an illness in a person of
“normal fortitude” if reasonable care were not taken.
In addition to the affected individual, certain close relatives of the victim can also bring a nervous shock claim. These
close relatives include:
1. One of the victim’s parents.
2. People who are parents to the victim.
3. The victim’s spouse or domestic partner.
4. The victim’s child or stepchild.
5. Any other individual for whom the victim serves as a parent.
The term “close relatives” also encompasses siblings, half-brothers or half-sisters, step-brothers and step-sisters. A
spouse, husband, wife or de facto partner is referred to as a “spouse or partner” in this context. These close relatives
may bring a nervous shock claim if the criteria for such a claim are met.
Evolution of Nervous Shock in Torts
Over time, the legal principles surrounding nervous shock in torts have evolved. Courts have expanded the scope of
claims to encompass a variety of potential scenarios, moving beyond just immediate shock. Initially, the courts were
cautious about recognizing claims related to psychiatric illness, fearing fraudulent or spurious claims under the guise of
mental health issues.
One challenge in these cases can be demonstrating the connection between the defendant’s actions and the plaintiff’s
shock stemming from those actions. This connection is essential for a successful nervous shock claim.
Tests of a Claim of Nervous Shock
The legal test for a nervous shock claim typically involves three criteria established by common law:
1. Duty of Care: The defendant must owe the plaintiff a duty of care, meaning the defendant had a legal obligation
to act reasonably and avoid causing harm to the plaintiff.
2. Foreseeability of Psychological Harm: It must be reasonably foreseeable that the plaintiff could experience
psychological harm as a result of the defendant’s actions or inaction. In other words, a reasonable person in the
defendant’s position should have anticipated the risk of causing psychological harm to the plaintiff.
3. Causation: The plaintiff’s psychological injury must be a direct result of the defendant’s negligent act or
omission. The plaintiff must establish a clear causal link between the defendant’s actions and their psychological
harm.
Compensation in Nervous Shock Claims
There are two types of victims of nervous shock in torts:
1. Primary Victim: A primary victim is someone who is directly harmed in an accident due to the negligence of the
wrongdoer. This person is physically affected by the incident.
2. Secondary Victim: A secondary victim is an individual who experiences nervous shock as a result of an accident
that harmed the initial victim but was not physically endangered themselves.
Cases of Nervous Shock in Torts
Here are two notable case laws related to nervous shock in torts:
Bourhill v. Young
Facts: In this case, the House of Lords addressed the issue of liability for mental illness. A pregnant woman exited a tram
and heard the distant sound of a car accident. She then visited the accident scene, saw blood on the road and later
experienced a miscarriage due to the stress she endured.
Judgment: The House of Lords ruled that the woman was not a “foreseeable claimant.” In other words, she was not
allowed to base her claim on harm done to another person. This case set a precedent that limited who could bring a
claim for nervous shock in torts.
McLoughlin v. O’Brian
Facts: In this case, the plaintiff was not physically present near the accident but was greatly distressed upon learning
about it.
Judgment: The House of Lords held the defendants responsible and expanded the law to include cases where the
plaintiff arrived immediately after the accident but had not personally witnessed or heard it. Lord Wilberforce proposed
three control mechanisms that should be determined in each case: the group of people whose claims should be
accepted, their proximity to the disaster and the mechanisms leading to mental illness. Following a unanimous vote in
the House of Lords, these control mechanisms were revised and applied to cases involving nervous shock in torts.
Laws Related to Nervous Shock/Psychiatric Damages in India
In India, the jurisdiction and liability concerning psychiatric damages in tort law are not extensively developed. While
there isn’t specific legislation addressing nervous shock, Indian courts have, in various cases, granted compensation to
plaintiffs based on the principle of reasonableness.
One significant case is Jose Philip Mamphilly v. Premier Automobile Limited. In this case, the plaintiff purchased a brand
new car that turned out to be defective. The mental distress caused by this experience led to a nervous shock in torts.
The manufacturer denied liability, claiming the matter was trivial. However, the court ruled in favour of the plaintiff,
granting compensation for the mental agony endured. This case highlighted the need for compensation in situations
where consumers suffer mental distress due to defective products.
The recent judgment in Bangalore Development Authority v. Syndicate Bank emphasised that the amount of
compensation awarded would depend on the specific circumstances of each case, considering factors such as the nature
and duration of the harassment and the authority’s actions that led to the distress.
While India lacks specific legislation governing liability for nervous shock, aspects related to mental health are addressed
under the Mental Health Act, 1987. The compensation for psychiatric damages is typically determined on the basis of
reasonableness and the facts of each case.
Another notable case is Lucknow Development Authority v. M.K. Gupta, where the plaintiff sought compensation for
harassment and mental agony after the authority failed to provide a flat as promised. The court granted compensation,
emphasizing the social benefit of such a judgment.
Cases related to psychiatric damages, like Ghaziabad Development Authority v. Balbir Singh and Haryana Development
Authority v. Vijay Aggarwal, have followed a similar line of judgment based on reasonableness.
However, in the case of Ghaziabad Development Authority v. UOI, the court took a different approach, focusing
primarily on the terms of a contract and applying The Specific Relief Act, 1963. The court did not consider tort aspects
and stated that compensating the plaintiff for mental anguish was improper in this case.
In summary, India does not have specific legislation addressing liability for nervous shock in torts and cases related to
psychiatric damages are determined based on reasonableness and the individual circumstances of each case. The
approach taken by the courts for matters concerning torts law can vary, with some cases emphasizing contractual
aspects while others consider tort principles.
Conspiracy
Ever since we have started to explore the nuances of law, we have studied conspiracy as a criminal offence.
Conventionally, the word ‘Conspiracy’ means secret plotting for committing something unlawful or treacherous, which
causes turmoil in the social order and causes instability in society.
Most of the jurists are of the view that, once the conspiracy is hatched or initiated, it increases the probability of the
offence to be committed, for which the conspiracy is done.
Conspiracy
In a simple language, the act of conspiracy means ‘a secret plan to do something which is unlawful or harmful, which is
to be executed in the near future’.
According to the nature of the conspiracy, it may be classified as:
1. Criminal Conspiracy
2. Civil Conspiracy
Criminal Conspiracy
The most famous type of conspiracy is criminal conspiracy. Generally speaking, the act of Criminal Conspiracy is defined
as ‘Two, or more than two people agreeing to do an illegal act or offense together’.
In India, historically the act of Conspiracy was considered as a civil wrong but, later on it was brought under the purview
of the Indian Penal Code. In the amendment to the Indian Penal Code, 1860 in the year 1913, Sections 120A and 120B
were added to include the act of Conspiracy as a criminal offence.
Section 120A of the IPC states the definition of a criminal conspiracy. It is defined as:
“ When two or more than two people are involved and agrees upon
1. To do an illegal act
2. To do such an act which is legal by illegal means, i.e the legality of the means is the main issue
Are said to be involved in a criminal conspiracy.”
While section 120B of the IPC defines and establishes the punishments to be inflicted for the act of conspiracy. It states
that:
1. Persons who are involved in the conspiracy of such an act, which amounts to the punishment of a death
sentence or life imprisonment, then the punishment for such an act of conspiracy would be given according to
the punishment for abetment of the same act.
2. Except for the aforesaid acts of conspiracy, every other act of conspiracy would be punishable for an
imprisonment term of 6 months and/or fine.
Now lets understand what are the essentials for an act to be considered as a criminal conspiracy.
Following are the essentials of a Criminal Conspiracy:
 An end to be accomplished
 Concrete planning for accomplishing that object
 Agreement to cooperate with each other
However, one must not confuse between the degree of the conspiracy of an act and committing the act itself.
In the case of Leo Roy Frey v. Suppdt. Distt. Jail this distinction was clearly explained and defined, wherein court
observed that-
‘The act of conspiring for a crime is totally different than committing the offense itself because the phase of conspiracy
comes before the phase of committing a crime. The commission of Conspiracy is completed before the Crime is
commissioned. That’s why it should be treated differently as a distinct crime.
Now, let’s come to the main focus of the article, where we’ll be discussing about Civil Conspiracy or Conspiracy under
Torts.
Tort of Conspiracy
The most famous definition of the tort of conspiracy was given by Lord Brampton, in the case of Quinn vs Leathem, this
was:
“ A Conspiracy is an unlawful association of two or more than two persons, to do any act which is not legal according to
the law of land or to do something harmful towards another person or to carry out an act not in itself unlawful, but by
unlawful means.”
Conspiracy can also be understood as a partnership between persons, where they come together to commit or involve
themselves in the planning of some act.
Illustration:
Suppose there are three people, Mr.A, Mr.B, and Mr.C. Now B and C undergo an agreement that clearly establishes that
they are agreeing on the proposal to doing a fraudulent act towards Mr.A. In such a case, this can be said to be a kind of
tort of conspiracy or civil conspiracy.
Any instance where conspiracy is done for the pursuance of a wrongful act of civil nature can be said to be Tort of
Conspiracy.
Now, let us discuss the essentials of a Civil Conspiracy:
1. Intention
Having an intention to injure or harm someone is the foremost essential of the tort of conspiracy. For an act to become a
tortious conspiracy, there must be a common intention of all the people involved in the conspiracy to do an illegal act or
an act which is contrary to the law. However, the degree of intention to harm may differ and vary but the presence of the
intention is an essential prerequisite.
Ideally, individuals never do an act with the same motive but the crux of this theory is to see what was the predominant
purpose of the association for doing conspiracy. The point to be given attention to is that only if the interest of the
defendants is served by the act ,it will not be actionable even if they were pleased by the losses and damage suffered by
the claimant.
Illustration: Suppose Ram and Shyam form an association and they both collectively practice such business by which
they gain profits but at the same time, are causing heavy losses to Mohan. Now, it was never their intention to harm
Mohan but to gain profits. So, such an act would not be considered a conspiracy.
2. Combination
It means that at least two or more than two people must be involved in the planning and there must be concerted
actions between them.
There may be cases where two or more than two people act with the same intention, but do this separately. So, such an
act would not amount to conspiracy. For an act to be considered as conspiracy, it is necessary that the people working
with the same intention must have agreed to that act mutually.
As stated in the case of Topan Das vs the State of Orissa, having an association with two or more than two people is
essential for conspiracy, as no one can conspire with themselves.
Illustration: For example, Ajay enters the house of Rohit for stealing money. At the same time, Ravi also enters Rohit’s
house for stealing money. In this case, although the intention of both, Ajay & Ravi was the same, they never formed an
association. Thus, can not be charged under conspiracy.
3. Overt Act
Another essential of the Conspiracy under torts is that some overt act must be done by the defendants which causes
harm to some other person. It is not necessary that the whole conspiracy must be carried out in the form of action. A
single step towards the commission of the conspiracy may amount to the offense.
For the overt act to be considered as essential, it is necessary that one of the contributors have acted for the fulfillment
of the intention behind the conspiracy.
Thus, for a conspiracy to be considered as a Civil Conspiracy, it is necessary that one of the conspirators has acted in
furtherance of the plan.
Illustration:
Suppose 4 persons agree to do an illegal act. But, a mere agreement can not make the act to be questioned. Suppose
that the illegal act they agreed upon was robbery. So, unless one single step towards committing a robbery is not taken
up, they can not be made liable.
Types of Conspiracy Under Torts
Now, we’ll be discussing different types of Conspiracy Under Torts. Following are the types:
1. General
2. Conspiracy to Injure
3. ‘Unlawful Means’ Conspiracy
General
A general conspiracy is an unlawful/illegal association of two or more than two persons in pursuance of an act, which is
contrary to the law and is harmful to the others. In other words, if people are forming an association with the intention
of harming others, then it would be considered as a general conspiracy.
For example, during an act by the actors, a certain group of people starts to hiss or start to boycott a particular actor,
then, the intention or the purpose of the act becomes relevant.
Conspiracy to Injure
This kind of conspiracy is also known as ‘Crofter’ Conspiracy, as this doctrine has emerged in the case of Crofter Hand
Woven Harris Tweed Co Ltd v Veitch. It was laid down in this case that when an association is formed by people with the
sole purpose of inflicting damage upon someone, which would otherwise be lawful even if committed by one person
with an intention of causing harm.
In such type of conspiracy, the sole purpose of the combination or, the association is to injure someone.
The most remarkable precedent was laid down in the Moghul Steamship Company’s Case that,
If two people, suppose X & Y are doing some act in pursuance of their business for expanding their business and
increasing their gains but also end up injuring someone. In such cases, if there was no intention to harm the injured
person, then the act is not actionable in the eyes of law.
Another important legal case regarding this is the Quinn vs Leathem case.
This case laid down that, an association of two or more people to injure another person with legal justification or excuse,
by means of inducing his business customers to break contracts with him or not to deal with him is actionable.
Unlawful Means Conspiracy
This type of tort involves an agreement between two or more than two parties. Wherein, at least one of them agrees
regarding using unlawful means against the claimant.
Let’s discuss an important case:
 Rohtas Industries vs Rohtas Industries Staff Union
The facts, in this case, were that the workmen of the two industrial premises went on a strike. The Strike mentioned
above was illegal under Section 23 r/w Section 24 of the Industrial Disputes Act, 1947. Now, the question which came
before the Supreme Court was that if, the workmen are liable to pay the compensation for the losses incurred by the
management during the strike period.
The Court stated that the object of the strike was not to inflict any injuries or damages to industrial establishments.
Although the act of strike would be considered as conspiracy, it was not actionable.
There are two elements of this type of conspiracy:
1. The intention of the Defendant
2. Unlawful Means
The Intention of the Defendant
This type of conspiracy does not require any predominant intention to injure the claimant. However, the intention need
not be predominant in this case but, the claimant must have suffered damage as a result of the act.
The damage to the claimant must be treated as an essential cornerstone while determining the liability of the defendant
or the accused.
Unlawful Means
Unlawful means are the acts or the conspiracy of such acts that would be wrongful and actionable under the Tort Law.
Even those acts are considered in this category which would have been of criminal nature if committed by a single
person.
If these two elements are proved to be present in an act, then such an act would be considered as ‘Unlawful Means
Conspiracy’.
Criminal Conspiracy v/s Civil Conspiracy
The main difference between the Criminal Conspiracy and the Civil Conspiracy is that when people intending to commit
an act and the act is punishable under the Criminal Law of lex loci, then it is criminal conspiracy whereas, in Civil
Conspiracy, the offences committed are of civil nature.