Law of Torts and Consumer Protection

Act

Justification of Tort
 The general exceptions or justifications of torts are as follows:

 Volenti Non Fit Injuria (consent or leave and license);

 Plaintiffs default;
 Act of God/Vis major;
 Inevitable Accident;
 Necessity: Private & Public
 Private defence;
 Statutory Authority;
 Parental and Quasi-Parental Authority;
 Judicial or Quasi-Judicial acts.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 2
1. Volenti Non Fit Injuria

 It means ‘where the suffer is willing, no injury is done’.

 In other words, when a person consents to the infliction of some harm

upon himself, it does not constitute a legal injury and, therefore, is not
actionable.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 3
 Consent to suffer the harm may be express or implied. It can
be inferred from the conduct of the parties.

 Express Consent

 Illustration:

 When you send an invitation card and invite somebody to your house, you
cannot sue him for trespass; or When you submit yourself for surgical
operation, you cannot sue the hospital authorities for doing the same.

 Implied Consent

 A player in the games of cricket, hockey, rugby or boxing is deemed to be

agreeing to any hurt which may be likely in the normal course of the game.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 4
Essentials

 Consent must be free;

 Consent cannot be given to an illegal act;

 Knowledge of risk is not the same thing as consent to run the risk.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 5
a. Consent must be freely given

 The consent is not free if it has been obtained by undue influence,

coercion, fraud, misrepresentation, mistake or the like elements which
adversely affect a free consent.

 Imperial Chemical Industries Ltd. V. Shatwell, (1964) 3 WLR 329

(HL)

 The plaintiff was employed by the defendant on a barge, and plaintiff

received injuries owing to the breaking of a defective rope by which the
barge was being pulled. It was held that there was no implied consent to
bear the risk on the part of the plaintiff as he had no knowledge of the
defective rope.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 6
 Hall v. Brooklands Auto-Racing Club, (1933) 1 KB 205

 The plaintiff was a spectator at a motor car race being held at Brooklands
on a track owned by the defendant company.

 During the race, there was collision between two cars, one of which was
thrown among the spectators, thereby injuring the plaintiff.

 It was held that the plaintiff impliedly took the risk of such injury, the danger
being inherent in the sport which any spectator could foresee, the
defendant was not liable.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 7
 Arthur v. Anker, [1996] 3 All ER 783, [1997] QB 564

 A motorist, who parked his car on his private land after having been given
notice that the landowner objected and might clamp his wheels, was
deemed to have consented when this occurred.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 8
 Vine v. London Borough of Waltham Forest [2000] 4 All ER 169

 A car driver felt sick, turned hurriedly into a private car park, got out and
was sick a shot distance away. She returned to find the car wheels
clamped. There was a warning notice, but it was partly obscured by
another vehicle. She recovered damages because she had not consented
to the risk of clamping.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 9
 Murray v. Harringay Arena Ltd [1951] 2 All ER 320

 The defendants were held not liable where a young spectator was struck in
the eye by a hockey puck.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 10
b. Consent cannot be given to an illegal
act

 No consent can legalise an unlawful act or an act which is prohibited by

law.

 Illustration:

Fighting with naked fists, duel with sharp swords are unlawful and even
though the parties may have consented, yet the law will permit an action
at the instance of the plaintiff.

 Hockey, Cricket- Raman Lamba & Eknath Solkar

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 11
 1. Raman Lamba had been hit on the temple while fielding, witout helmet,
at short leg. The ball hit him so hard that the ball rebounded to Khaled
Mashud, the wicket keeper. He succumbed to the injuries on February 23,
1998.

 2. On Alcwyn Jenkins failed to see the ball hurtling towards the stumps
from the boundary and died when it hit him on the head. The South Wales
Cricket Association Honorary Chairman Neil Hobbs, a friend of Mr. Jenkins
said: “…Umpires do get hit by the ball occassionally, but the chances of a
fatality must be less than one in a million. No one can believe it.”

(See, David Wilkes, “Cricket Umpire, 72, Killed as Ball Thrown by Fielder
Hits Him on the Head”, DailyMail, 06 July 2009 available online at
http://www.dailymail.co.uk/news/article-1197617/Cricket-umpire-72-killed-ball-
) (Last visited 8 July 2009)

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 12
c. Knowledge of risk is not the same
thing as consent to run the risk

 Smith v. Charles Baker & Co, [1891] AC 325

 In this case, the plaintiff worked in a cutting on the top of which a crane of
ten jibbed carrying heavy stone over his head while he was drilling the rock
face in the cutting.

 Both he and employers knew that there was a risk of stones falling, but no
warning was given to him of the moment at which any particular jibbing
commenced.

 A stone from the crane fell upon him and injured. The House of Lords held
that defendants were liable.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 13
Exception to the rule

 Rescue Cases

 Doctrine of assumption of risk does not apply where plaintiff has under an
exigency caused by defendant’s wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue another from imminent
danger of personal injury or death, the defence of leave and licence is not
applicable to the plaintiff, whether the person endangered was one to
whom he owed a duty of protection as a member of his family, or was a
mere stranger to whom he owed no such duty.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 14
 Haynes v. Harwood, (1935) 1 KB 146

 The defendant negligently left his horses unattended in a crowded street, a

boy threw a stone at them and they ran helter-skelter. The plaintiff,
constable on duty, perceiving the danger to the lives of the persons, ran
out and stopped the horses but was seriously injured.

 It was held:
 That he was entitled to recover damages, as the defendant was grossly
negligent, and

 That the defence of Volenti non fit Injuria was held not to apply to the
rescue cases, the act of a third party also intervening and the voluntarily
undertaking the risk by the plaintiff were not open to the defendant.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 15
 Dr. J N Srivastava v. Ram Bihari Lal and Others, AIR 1982 M.P.
132

 The doctor observed after opening the abdomen cavity that patient’s
appendix was all right but the operation of Gall-bladder was needful. He
proceeded with the operation- later on the patient died. The Court held that
it was not possible to seek the consent for the Gall-bladder operation. In
such circumstances doctor was not responsible.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 16
 Baker v. T.E. Hokins and Sons, (1959) 1 WLR 966

 A well was filled with poisonous fumes of a petrol driven pump on account
of negligence of the employer, as a result of which two workmen were
overcome by fumes. Dr. Baker was called to rescue their lives but he was
told not to enter the well in view of the risk involved. Still he preferred to
enter the well with a view to save their lives. In the attempt of saving them
he himself was overcome by the fumes and he died.

 The widow of Dr. Baker sued the employer to claim compensation for her
husband’s death. The defendants pleaded Volenti non fit Injuria.

 It was held that the act of rescuer was the natural consequence of the
defendant’s negligent act which he could have foreseen and therefore, the
defence of Volenti non fit Injuria did not apply. The defendants were, thus,
held liable.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 17
Distinction between Volenti Non Fit
Injuria & Contributory Negligence

 In case of Volenti Non Fit Injuria, the plaintiff is always aware of the nature
and extent of the danger which he encounters, while it is not so in case of
Contributory negligence.

 Volenti Non Fit Injuria is a complete defence, whereas in contributory

negligence the claim of the plaintiffs is reduced to the extent the claimant
himself was to blame for the loss.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 18
2. Act of God/Vis Major
 Act of God may be defined as-

“circumstances which no human foresight can provide against any of which

human prudence is not bound to recognise the possibility, and which when
they do occur, therefore, are calamities that do not involve the obligation of
paying for the consequences that result from them”.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 19
 Greencock Corporation v. Caledonian Railway Co. (1917)

 This defence is available ‘in circumstances which no human foresight can

provide against, and which human prudence is not bound to recognise the
possibility.’

 Illustrations: The falling of a tree, a flash of lightening, a tornado, storms,

tempests, tides, volcanic eruptions, or a flood

 (Do read, Christopher Jon Andrews, Mary Ann Cooper and D. Mackerras,
“Lightning Injuries: Electrical, Medical, and Legal Aspects”,
(CRC Press: 1991)
 Available online at
http://books.google.co.in/books?id=-BeZVUh0LQ0C&pg=PA158&dq=act+of+g
)
Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 20
 The essential conditions of this defence are:

 There must be working of natural forces without any intervention from

human agency, and

 The occurrence must be extraordinary and not one which could be

anticipated and reasonably guarded against.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 21
 Nicholas v. Marshland, (1875) 2 KB 297

 The defendant constructed three artificial lakes which were fed by a natural
stream. The lakes were well constructed and adequate in all normal
circumstances.

 An extraordinary rainfall burst the banks of artificial lakes on the

defendant’s property and the floodwater destroyed a number of bridges
owned by the county council.

 It was held that the defendant was not negligent and the accident was due
to an act of God.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 22
 In Greencock Corporation v. Caledonian Railway Co. (1917) AC
556, the House of Lords criticised the use of defence in Nicholas.

 In modern times the defence will rarely, if ever, be successful, for with
increasing knowledge the limits on the forseeable have increased
dramatically.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 23
3. Inevitable Accident
 An ‘inevitable accident’ is that which could not possibly, be prevented by
the exercise of ordinary care, caution and skill.

 A. Krishna Patra v. Orissa State Electricity Board, AIR 1997

Orissa 109

 The Orissa High Court defined ‘Inevitable accident’ as an event which

happens not only without the concurrence of the will of the man, but in
spite of all efforts on his part to prevent it.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 24
 Stanley v. Powell, (1891) 1 QB 86

 The plaintiff, who was engaged in carrying cartridges and game for the
party, was hit by a shot fired by the defendant while on an organised
pheasant shoot when the shot glanced off a tree before hitting the plaintiff.

 It was held that the defendant was not liable.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 25
 National Coal Board v. Evans, (1951) 2 KB 861

 In this case a colliery company preceded the National Board, had buried
an electric cable in the county council’s land. The county council’s
contractor damaged the cable while excavating land and the fact that
electric cable was buried under the land was not known to the council or
contractor.

 It was held that in these circumstances, neither the council nor the
contractor would be liable for damage of cable and the defence of
inevitable accident was allowed.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 26
4. Necessity
 Necessity knows no law.

 This is intentional damage to prevent even greater destruction or in

defence of the realm.

 The exception of necessity is based on the maxim Salus Populi

Suprema Lex i.e. the welfare of the people is the Supreme Law.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 27
 Illustration:

 One arresting and restricting the movement of the drunken person who is
likely to cause danger to the people at large, can successfully plead
necessity as a defence.

 However, one who puts live electric wires on his land to stop the
trespassers cannot successfully avail this defence if he does not give
notice, warning of such dangerous thing.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 28
 Cope v. Sharpe, (1912)

 A fire broke out on A’s land. A’s servants were busy in extinguishing the
fire, the gamekeeper of C (who had shooting rights over A’s land) set fire
to some strips of heather extinguished between the fire and some nesting
peasants of C, in a shot, while the fire was by A’s servants. A sued the
gamekeeper for trespass.

 The Court held that the gamekeeper was not liable for there was a real and
imminent danger to the game which justified the action taken by the
defendant.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 29
Limits of the Defence of Necessity
 Olga Tellis v. Bombay Municipal corporation, (1985) 3 SCC 545

 The Supreme Court held that “under the law of tort necessity is a plausible
defence, which enables a person to escape liability on the ground that the
acts complained of are necessary to prevent greater damage, inter alia, to
himself. So the trespass on some property cannot be justified always on
the basis of necessity.

 The defence is available if the act complained of was reasonably

demanded by the danger or emergency”.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 30
 Section 81 of the Indian Penal Code

 Nothing is an offence merely by reason of the being done with the

knowledge that it is likely to cause harm, if it be done without any criminal
intention to cause harm, and in good faith for the purpose of preventing or
avoiding other harm to person or property.

 Explanation: It is a question of fact in such a case whether the harm to be

prevented or avoided was of such a nature and so imminent as to justify or
excuse the risk of doing the act with the knowledge that it was likely to
cause harm.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 31
 Illustration:

 A, in a great fire, pulls down houses in order to prevent the conflagration

from spreading. He does this with the intention in good faith of saving
human life or property.

 Here, if it be found that the harm to be prevented was of such a nature and
so imminent as to excuse A’s act, A is not guilty of the offence.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 32
 Dhania Daji, (1868) 5 BHC (CrC) 59

 A person placed poison in his toddy pots, knowing that if taken by a human
being it would cause injury, but with the intention of thereby detecting an
unknown thief who was in the habit of stealing the toddy from his pots. The
toddy was drunk by and caused injury to some soldiers who purchased it
from an unknown vendor.

 It was held that the person was guilty under section 328 (causing hurt by
means of poison or any stupefying, intoxicating or unwholesome drug or
other thing with intent to commit an offence), and that section 81 did not
apply.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 33
5. Private Defence

 If the tort is committed by a person acting to protect him/herself, members

of his/her family or his/her property, or even persons generally, there will
be no liability if the action is a reasonable response to the harm
threatened.

 In other words, no action is maintainable for damage done in the exercise

of one’s right of private defence of person or property provided that the
force employed for the purpose is not out of proportion to the harm
apprehended.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 34
 Turner v. Jagmohan Singh, ILR (1905) 27 All. 531

 A vicious stallion repeatedly attacked a pair of mares belong to the

carriages in which the defendant was being driven, and finally came into
the defendant’s compound in spite of attempts made to prevent him, and
continued his attacks until the defendant getting hold of a spear inflicted
somewhat severe wound on the left hind quarter of the stallion. After this
the stallion made off, but subsequently died from the effects of the wound.

 It was held that the defendant’s action was justifiable and the owner of the
stallion was not entitled to any damages.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 35
 Morris v. Nugent, (1836) 7 C & P 572

 The defendant was passing by the plaintiff’s house. The plaintiff’s dog ran
out, and bit the defendant. On the defendant’s turning round, raising his
gun, the dog ran away and he shot the dog as it was running away.

 It was held that the defendant was not justified in doing so. To justify the
shooting of the dog, he must be actually attacking the party at the time.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 36
 Sections 96-106 of the Indian Penal Code

 As per section 96 IPC nothing is an offence which is done in the

exercise of the right of private defence.

 Further section 97 authorises one to exercise right of private defence to

protect one’s person and property and also that of other person, subject to
restriction as placed under section 99 that there is no right of private
defence against any act which does not reasonably cause the
apprehension of death or of grievous hurt, if done…the right of private
defence in no case extends to the inflicting of more harm than it is
necessary to inflict for the purpose of defence.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 37
6. Statutory Authority
 Statutory authority means “an authority or power given by law to do certain
acts and if a tort is committed in the course of any such act, the injured
person will have no claim unless the act has been done negligently”.

 The basic philosophy behind the statutory immunity is that the

lesser private right must yield to the greater public interest.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 38
 The extent of the protection available to a public authority depends on
whether the authority is absolute or conditional. Such a condition may be
express or implied.

 In case of absolute statutory authority the immunity is available

against both the act and its natural consequences.

 If absolute, then the authority is not liable provided it has acted reasonably
and there is no alternative course of action.

 e.g. to acquire land for the laying down of the railway track; the noise and
vibration will be caused by running the train on it.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 39
 Government can acquire land even against the will of people for the
development purpose as they have statutory authority; but a builder cannot
force one to sell his property under the garb of development, as he has not
statutory authority.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 40
 If an act is done in pursuance of a mandatory provision of law the authority
executing that mandate is not liable for any loss which is caused to the
plaintiff if that authority has been negligent in performance of the duty.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 41
 Ram Gulam v. Government of the United Province, (1951) 1 All.
135

 Certain ornaments were stolen from the house of the plaintiff. On a search
made by the police they were recovered from another house and produced
as exhibits at the trial of those who were prosecuted in connection with the
theft. Thereafter they were kept in the Collectorate godown from where
they were again stolen and could not be traced.

 The Plaintiff sued the Government of the United Provinces for recovery of
the ornaments, and in the alternative for the recovery of their price.

 It was held that the Government was not liable as the alleged tortuous act
was performed in discharge of an obligation imposed by law. [Also see
Kasturilal v. State of U.P. AIR 1965 SC 1039]

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 42
 Vaughan v. Taff Vole Rly. Co. (1860) 5 H&N 679

 The defendants were not liable for fires caused by sparks from engines
since they were obliged to operate a railway and had done so with proper
care.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 43
 Where the authority is conditional, the public authority has the
power to act but is under no duty to do so, and it may carry out the relevant
act only if there is no interference with the rights of others.

 No one can remove property out of one’s possession, however traffic

police can remove vehicle which is obstructing the traffic or is parked in no
parking zone. However one who is residing nearby an airport cannot
complain of the noise created by the operation of the airport.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 44
 Metropolitan Asylum District Board v. Hill, (1889) LR 4 PC 628

 A local authority being empowered by a statute to erect a small-pox

hospital was restrained from erecting it at a place where it was likely to
prove injurious to the residents of the locality.

 The authority to construct a hospital was construed as impliedly conditional

only, i.e. to erect the hospital provided that the hospital authorities selected
a site where no injurious results were likely to be caused to others.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 45
 Fisher v. Ruislip-Northwood UDC, (1945)

 The local authority had, by statute, been given power to erect air-raid
shelters on the highway. In the black-out, Fisher drove his motor cycle into
such a shelter, and was injured. When sued for the tort of public nuisance,
the Council pleaded that it had statutory authority to put up the shelter.

 The defence failed, because the Council could, even in the black-out, have
put up small, shaded warning lights for motorists. The Council only had
statutory authority on condition that it was exercised with care for the
safety of others.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 46
7. Parental or Quasi Parental Authority
 Parents and persons in loco parentis have a right to administer punishment
on a child for the purpose of correction, chastisement of training.

 However one must remember that such an authority warrants the use of
reasonable and moderate punishment only and therefore, if there is an
excessive use of force, the defendant may be liable for assault, battery or
false imprisonment, as the case may be.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 47
 In England, as per Section 1(7), Children and Young Persons Act,
1933, a parent, teacher, or other person having lawful control or charge of
a child or young person is allowed to administer punishment on him.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 48
 In Fitzgerald v. Northcote, (1865) 4 F & F 656, Cockburn C.J.
observed:

“The authority of a schoolmaster is while it exists, the same as that of

parent. A parent, when he places his child with a schoolmaster, delegates
to him all his authority, so far as it is necessary for the welfare of the child”.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 49
 The authority of a teacher to correct his students is:

 not limited only to the wrongs which the student may commit upon
the school premises

 but may also extend to the wrongs done by him outside the school

 because there is not much opportunity for boy to exhibit his moral
conduct while in school under the eye of the master the opportunity is
while he is at play or outside the school.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 50
 R. v. Newport (Salop) Justices, (1929) 2 K.B. 416

 It has been held that if the school rules prohibited smoking, both in the
school and in the public, the school master was justified in caning a
student whom he had found smoking cigarette in a public street.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 51
 Reasonable professional behaviour, rather than perfection, is the norm.

 Eisel v. Board of Education, (1991)

 The Maryland High Court ruled that school counsellors were negligent in
not revealing their knowledge of a student’s threatened suicide to the
child’s parents. The counsellors’ negligence was not for failure to physically
prevent the student’s suicide, but rather for not communicating information
regarding the child’s intent.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 52
8. Judicial or Quasi-Judicial Acts

 No action lies for acts done, or words spoken, by a judge in exercise of his
judicial office, although they may be malicious.

 It is founded on the principle of public benefit that Judges should be at

liberty to exercise their function independently and without fear of
consequences.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 53
 Judicial Officers’ Protection Act, 1850 grants protection to a judicial officer
for any act done or ordered to be done by him in the discharge of his
judicial duty.

 He is protected even though he exceeds his jurisdiction provided that at

that time he honestly believed that he had jurisdiction to do or
order the act complained of.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 54
 Section 1 of the Act reads as follows:

“No Judge, Magistrate, Justice of the Peace, Collector or other person

acting judicially shall be liable to be sued in any civil court for any act done
or ordered to be done y him in the discharge of his judicial duty whether or
not within the limits of his jurisdiction:

Provided that he at the time in good faith, believed himself to have

jurisdiction to do or order the act complained of; and no officer of any court
or other person, bound to execute the lawful warrants or orders of acting
judicially shall be liable to be sued in any civil court, for the execution of
any warrant or order which he would be bound to execute, if within the
jurisdiction of the person issuing the same.”

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 55
Limits of such protection
 1. No such protection is granted if a magistrate is acting mala
fide and outside his jurisdiction.

 Sailajanand Pandey v Suresh Chandra Gupta, AIR 1969 Pat. 194

 The magistrate acting mala fide, illegally and outside his

jurisdiction, ordered the arrest of the plaintiff. The Patna High Court held
that he was not entitled to the protection given by the Judicial Officer’s
Protection Act, 1850 and was, therefore, liable for the wrong of false
imprisonment.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 56
 2. The protection of judicial privilege applies only to judicial
proceedings as contrasted with administrative or ministerial
proceedings and where, a judge acts both judicially and
ministerially or administratively, the protection is not afforded
to the act done in the later capacity.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 57
 State of U.P. v. Tulsi Ram, AIR 1971 All. 162

 Five persons were prosecuted for certain offences. One of them was
acquitted by the Sessions Court and another by the High Court. The High
Court upheld the conviction of only three of the five persons and authorised
the issue of warrants against these three convicted persons.

 The judicial magistrate acting negligently signed an order for the arrest of
all the five persons.

 As a result of this order, the plaintiffs, even though they had been acquitted
by the High Court, were arrested by the police.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 58
 They filed a suit claiming compensation of Rs. 2,000 from the judicial
officer and the State of U.P. stating that their arrest before their relations
and friends on the day of Holi festival had caused much humiliation,
disgrace, physical discomfort and mental suffering to them.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 59
 The lower appellate court held that the judicial officer was protected by the
Judicial Officer’s Protection Act, 1850 but the State of U.P. was vicariously
liable and passed a decree of Rs. 500 against the state of U.P.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 60
 The Allahabad High Court, on an appeal made by the State of U.P. held
that the State was not liable because the act done by its servant was in the
discharge of his duties imposed by law.

 Further, it held that the judicial officer was liable for the wrongful
arrest of the plaintiff-respondents as the judicial officer was not exercising
any judicial function but only an executive function while issuing warrants
and therefore, the protection under the Judicial Officers’
Protection Act, 1850 could not be available in this case.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 61
9. Mistake
 The general rule is that mistake, whether of the law or of fact, is no
defence in tort.

 A defendant cannot argue that he or she did not know the law relevant to
his or her case.

 The maxim ignorantia legis non excusat i.e. ignorance of the law is
no excuse, applies.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 62
 In respect of a mistake of fact, there are some exceptions to the rule. They
are:

 Malicious Prosecution: If a police officer or private prosecutor

commences a prosecution under the mistaken belief that the plaintiff is
guilty but the plaintiff turns out to be innocent, this will provide a defence to
an action for malicious prosecution.

 False Imprisonment: If a police officer, without a warrant, arrests the

plaintiff in the mistaken belief of reasonable suspicion that a person has
committed an arrestable offence, the police officer is not liable for false
imprisonment. The police officer has to show he had grounds for his
beliefs.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 63
 A trespass to land is actionable per se. so a trespass on to land which the
trespasser mistakenly but honestly believes belongs to him, or he believes
he has right of entry to, can be liable for trespass.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 64
10. Contributory Negligence/Plaintiff’s
own default
 This defence is normally raised to actions for negligence.

 It arises when damage is suffered partly by the fault of the defendant and
partly by the fault of the claimant.

 The defendant, therefore, attempts to reduce the damages by proving that

the claimant was himself partly responsible.

 In England, the Law Reform (Contributory Negligence) Act, 1945

provides that in such cases the court shall reduce the damages by an
amount proportionate to the claimant’s share of responsibility.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 65
 Sayers v. Harlow (1958)

Mrs Sayers found herself locked in a public lavatory. Unable to summon

help, she tried to climb out over the top of the door. She found this
impossible and, when climbing back down, allowed her weight to rest on
the toilet roll which ‘true to its mechanical requirement, rotated’. Mrs.
Sayers fell and was injured.

 It was held that 75% of her injury was the fault of the Council for providing
a defective lock which jammed, and 25% was her own fault.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 66
 Stapley v. Gypsum Mines Ltd (1953)

Two miners who worked, in breach of instructions, under a dangerous roof

were held 80% contributory negligent.

 Froom v. Butcher (1976)

A front seat passenger injured in a car accident had his damage reduced
by 25% because he had not worn a seat belt.

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 67
Questions…if any?

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 68
 Thank You!

Dr C J Rawandale, Director,
Symbiosis Law School, NOIDA 69