CHENNAI JUSTICE LAW ACADEMY

TORTS STUDY MATERIAL

1. Nature and definition of Torts

• Meaning
• Nature
• Essentials
• Types of damage

2. General defence
• Volenti Non Fit injuria i.e. Consent
• Plaintiff is the Wrongdoer
• Inevitable Accident
• Act of God
• Private Defence
• Necessity
• Statutory Authority

3. Negligence
• Meaning
• Forms
• Essentials
• Res Ispa Loquitur
• Defences

4. Nuisance
• Meaning
• Essentials
• Public & private nuisance
• Remedies

5. Defamation
• Meaning
• Types liber & slander
• Defences

6. Trespass to person
• Assault
• Battery
• False imprisonment
7. Trespass to land
• Introduction
• Trespass ab initio
• License
• Defences
• Remedies

8. Vicarious Liability
• Introduction
• Essentials & reasons for vicarious liability
• Scope of employment
• Servant and independent contractor
• Types

9. Strict and absolute liability

• Rule of strict liability
• Exceptions to strict liability
• Rule of absolute liability

10. Remoteness of damage

• Introduction
• Proximate & remote damage
• Tests
MEANING
The term derives from Latin tortum, meaning “something twisted, wrung, or crooked.” The
concept encompasses only those civil “wrongs” (EQUIVALENT ENGLISH TERM)
independent of contracts. Law imposes duty to respect the legal rights of the other and breach
of that duty and affecting the legal rights of other is termed as wrongful act. an individual
who commits a tort is called a tortfeasor, or a wrongdoer. And where there are multiple
individuals involved, then they are called joint tortfeasors. Their wrongdoing is called as a
tortious act and they can be sued jointly or individually. The main aim of the Law of Torts is
the compensation of victims.

Section 2(m) of the Limitation Act,1963, Addresses tort as being a civil wrong which is not
just exclusively a breach of contract or a breach of trust.

SALMOND - Tort as being only a civil wrong which remedy is a common law action and
has unliquidated damages (those damages for which there is no fixed amount) in the form of
remedy and which is not just exclusively the breach of contract or the breach of trust or
breach of merely fair and impartial obligation.

RICHARD DIEN WINFIELD, Tortious liability emerges from the breach of a duty
primarily fixed by the law, this duty is towards the other people generally and its breach is
redressible by an action for unliquidated damages.

FRASER, a tort is an infringement of a right in rem of a private individual

giving a right of compensation at the suit of the injured party

Tort is a civil wrong (compensated and not punished like criminal wrong)

Tort is other than a mere breach of contract or trust (can claim remedy under tort or contract
but not twice)

Tort is redressed by an action for unliquidated damages (Parties not known to each other
therefore difficult to visualize the quantum of loss)

TORT & CONTRACT

1. In contract, the parties, with their free consent, undertake to perform certain duties while
in tort; the duties are imposed by law.
2. In the contract, the contracting parties owe a duty to each other only. A duty not to
commit a tort is owed to persons generally and not to any particular individual
3. Damages in the case of a tort are different under different circumstances, whereas, in the
case of a contract, the damages are in the form of compensation for the loss suffered in
peculiar form.

4. In the case of a tort, intention is taken into consideration in some cases, whereas, in the
case of a breach of contract, intention is irrelevant.

TORT & CRIME

1. Tort is an infringement of a private or civil right and therefore it is considered to be

wrong against a person to whom the damage has been caused. Crime, on the other
hand, is a public wrong.
2. In tort the injured party himself brings an action against the wrongdoer whereas, in
crime, the wrongdoer is prosecuted by the state even though the victim, in this case, is
also an individual
3. Law of torts is an uncodified law whereas law of crimes is a codified law.

4. In tort, intention is important but not in all cases, whereas in the case of criminal law
intention is the crux of the offence itself

TORT & BREACH OF TRUST

Also, a tort is different from breach of trust as in tort, the damages are unliquidated but in breach of
trust, they are liquidated as they are ascertainable before the beneficiary brings an action against
the trustee.

ESSENTIALS OF A TORT:

There are two essentials to commit a tort:

1. Act or Omission: To make a person liable in tort, he must have committed some act or
omission in the performance of his legal duty. For example, entering someone’s property
without any justification or defaming a person of his reputation. These acts result in torts of
Trespass and Defamation.
2. Legal Damage: To be successful in an action for tort, the plaintiff has also to prove legal
damage or an injury. Unless there is a violation of a legal right, an action under the law of
torts cannot lie.
The legal damages are of two types:

a) Injuria Sine Damno

b) Damnum Sine Injuria

Injuria Sine Damno

It means a violation of a legal right without causing any damage to the other person. Since there is a
violation of a legal right; it is actionable even without proof of damage.

In this case Ashby v. White, the defendant, a returning officer in an election, wrongfully refused to
take the vote of the plaintiff, an eligible voter. The plaintiff didn’t suffer any loss by this refusal as
the candidate for whom he wanted to vote, won the election. The defendant was, however, held
liable, because the plaintiffs’ legal right had been violated.

In the case of Bhim Singh vs State of Jharkhand, plaintiff who was an MLA was wrongfully detained
by the police, while he was going to attend the assembly session. He was produced before
magistrate before the prescribed time. Violation of fundamental right to attend the assembly
session of personal liberty under article 21 of the constitution of India. He was awarded
compensation of Rs. 50, 000 along with his release from jail.

Damnum Sine Injuria

It means causing damage without the infringement of a legal right. Unless there is an infringement
of a legal right, mere causing damage isn’t actionable

In Gloucester Grammar School Case, the defendant set up a rival school to that of the plaintiffs.
Because of the competition, the plaintiffs’ had to reduce their fees from 40 pence to 12 pence per
scholar per quarter. It was held that the plaintiffs’ had no remedy for the loss thus suffered by them.

In Vishnu Datt v Board of HS & Intermediate education UP, student was detained for attendance
shortage. His detention was found to be illegal by Court as the attendance register was not
maintained according to the regulation of the Board. He wasted one year time. His action to claim
compensation did not found in common law or statutory provision.

MENTAL ELEMENT IN TORTS

Generally, under criminal law, Mens Rea or a guilty mind is a necessary element for liability. But the
same is not the case with the Law of Torts. Torts such as assault, battery, false imprisonment, deceit,
malicious prosecution and conspiracy require the state of mind of a person and are relevant to
ascertain the liability (Fault when relevant) while torts such as negligence or defamation do not
require a mental element and thus it is completely irrelevant (Liability without fault)

Types of Damages: Damages refers to money paid by one side to the other; it is a legal remedy.

1. Nominal Damages: In the situation where there has been a breach but the nonbreaching
party has really suffered no loss or cannot prove what his loss is, he is entitled to nominal
damages.
2. Compensatory Damages: Damages paid to directly compensate the nonbreaching party for
the value of what was not done or performed are compensatory damages.
3. Punitive Damages: Punitive damages are those awarded for the purpose of punishing a
defendant in a civil action, in which criminal sanctions are of course unavailable. They are
proper in cases in which the defendant has acted willfully and maliciously and are thought to
deter others from acting similarly.

Suba singh vs Davinder kaur

During the pendency of criminal proceeding whether a separate suit for damages for the
victim was possible or not? The court answered in affirmative and awarded damages to the
victim.
GENERAL DEFENCES
1. Volenti Non Fit injuria i.e. Consent
2. Plaintiff is the Wrongdoer
3. Inevitable Accident
4. Act of God
5. Private Defence
6. Necessity
7. Statutory Authority

Volenti Non Fit injuria i.e. Consent

a person who is willing to suffer and give consent for suffering harm and injury caused by actions of
defendant cannot complaint against such injury as there is no remedy under Tort. If plaintiff agrees
to suffer some harm, his consent serves as a good defence against him. Such kind of wilful consent
may be in express or implied terms.

In the case of Hall vs Brookland Auto Racing club, Plaintiff was a spectator in a car race in a track
owned by defendant company. One of the cars collided and was thrown on the spectator 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 forsee, the defendant was not held liable.

Consent must be free and not obtained by fraud or compulsion.

In Hegarty vs shine it was held that mere concealment of facts may not be such a fraud as to vitiate
consent.

In R. v. Williams, the music teacher raped a 16 year old girl under the misrepresentation by falsely
pretending that it would improve her voice. The consent wasn’t free in such case and the teacher
was held liable.

In Smith v. Baker, the plaintiff being an employee for working on drill for cutting stones was busy in
work while some stones were being conveyed from one end to the other passing over his head and a
stone fell on him causing injuries. The employers did not warn him at the moment of the recurring
danger although plaintiff was aware of the risk. It was held that mere knowledge of risk without the
assumption of it, the maxim volunteri non fit injuria did not apply. Although he had knowledge of
stones being carried, the court held that mere knowledge didn’t amount to consent and defendants
were held liable.

Limitation:

The scope of this maxim was curtailed in the

 1. Rescue cases – Plaintiff voluntarily encountors a risk to save somebody from an immenent
danger created by the wrongful act of the defendant, he cannot be met with the defence of
volunti non fit injuria.

In the case of Haynes vs Hardwood, the defendant’s servant left a two- horse van unattended in
a street, a boy threw a stone on the horse and it bolted causing grave injury to men and children
on the road. A police men tried to stop it and he thereafter suffered injuries. It being a rescue
case, the defence of volunteri non fit injuria was not accepted and the defendants were held
liable.

2. By unfair contract terms- Limits the right of a person to restrict or exlude his liability
resulting from his negligence by a contract term or by notice.

Plaintiff being the Wrongdoer

The Latin Maxim ‘Ex Turpi Causa Non Oritur Actio’ means ‘from an immoral cause, no action arises’.
The defendant is excused from his liability in torts when the act of the plaintiff himself is wrong or
illegal. In these cases, the plaintiff cannot claim legal remedy from the court as he himself was wrong
in first place and his own actions led to the legal injury suffered by him.

In the case of Pitts v. Hunt, a rider aged 18 years encouraged his 16 year old friend for driving fast
under drunken state. The vehicle met an accident and the younger boy died and older suffered
injuries and brought action against relatives of deceased for compensation for injuries. The court
denied such plea of compensation as the plaintiff in this case was himself the wrongdoer and the
defendant can use this defence to get away from the liability

Inevitable Accident
An Accident means an injury which is unexpected and if such an accident is of such a nature that it
could not have been avoided despite all precautionary measures and carefulness exercisable by the
defendant, then it is known as Inevitable Accident which serves as a defence for the defendant in
order to absolve himself from any liability

In the case of Stanley v. Powell, both of them went for pheasant shooting during which the
defendant fired a bullet for shooting down a pheasant. However the bullet got reflected the oak tree
and hit the plaintiff resulting into serious injuries. On the action brought by the plaintiff against the
defendant, it was held by the court that the incident was an inevitable accident and the defendant
can be excused from any form of liability

Act of God/ Vis Major

The Defence of Act of God finds its usage in those cases in which an event occurs over which the
defendant has no control and the resultant damage is due to the natural forces. In simple words it is
defined as circumstances for which no human foresight could provide against and a reasonably
prudent person could not recognise the possibility of its happening.
Two important essentials needed for this defence

❖ There must be working of Natural forces

In case of Ramalinga Nadar v. Narayana Reddiar the plaintiff had booked goods with the
defendant for transportation. The goods are looted by a mob, the prevention of which was
beyond control of defendant. It was held that event beyond control of the defendant cannot be
said Act of God. It was held that the destructive acts of an unruly mob cannot be considered an
Act of God.

In the case of Nichols v. Marshland the defendant has a number of artificial lakes on his land.
Extraordinary heavy rainfall such as had never been witnessed in living memory caused the
banks of the lakes to burst and the escaping water carried away four bridges belonging to the
plaintiff. It was held that the plaintiff's bridges were swept by an act of God and the defendant
was not liable.

❖ The occurrence must be extra-ordinary and not one which could be anticipated and
reasonably guarded against

The basic and prime element of an act of god is the happening of an unforeseeable event. For
this, if the harm or loss was caused by a foreseeable accident that could have been prevented,
the party who suffered the injury has the right to compensation. However, the damage caused
by an unforeseen and uncontrollable natural event is not compensable as it could not have been
prevented or avoided by foresight or prudence of man.

In Kallu Lal v. Hemchand, due to a normal rainfall, the building’s wall collapsed resulting in the
death of children of the plaintiff. The court observed that a rainfall of 2.66 inches is normal and
not extraordinary and thus the essential of the defence of Act of God are not met and the
defendant would be held liable.

Private defence
The law permits use of reasonable force to protect one’s person or property. If the defendant uses
force which is necessary for self defence, he will not be liable for the harm caused thereby.

❖ There should be imminent threat to the personal safety or property.

❖ The Force should be used only for the purpose of protection and not for revenge
❖ Force should be in proportion to the threat

In the case of Bird v. Holbrook, the defendant had fixed spring guns around his garden without any
form of notice and thus the Trespasser (plaintiff), being unaware due to its automated discharge
suffered injuries and brought action. The court held that such fixation of spring guns without notice
didn’t qualify as private defence lacking essential and the plaintiff is entitled to compensation.
In Ramanuja Mudali v. M. Gangan, the defendant landowner had laid wires on land. When the
plaintiff crossed his land to go to his land, he received a shock leading to serious injuries as there was
no notice of such arrangements. Such act on the part of defendant does not qualify as Private
Defence making him liable

Necessity
An act causing damage, if done under necessity to prevent a greater evil is not actionable even
though harm was caused intentionally.

Necessity vs private defence.

In necessity there is infliction of harm on an innocent person whereas in private defense harm is
caused to a plaintiff who himself is a wrongdoer.

In case of Leigh v. Gladstone, the court observed that forcibly feeding a person who is on hunger
strike in prison amounts to necessity and the defendant cannot be made liable for battery

In the case of Cope v. Sharpe, in order to stop the fire from spreading in adjoining land, the
defendant entered the premises of plaintiff. On a suit brought by plaintiff alleging trespass, the court
observed that the defendant to be having no liability for the same and defence of Necessity served
as a valid defence.

If interference is not reasonably necessary the defendant will be made liable. In Carter vs Thomas,
the defendant who entered the plaintiff’s premise in good faith to extinguish fire at which the
fireman already been working was held liable for trespass.

Statutory Authority
An act which is authorised by the act or statutes passed by concerned authorities does not become
actionable even though otherwise it would amount to tort. It serves as a total defence from liability
of tort and the aggrieved plaintiff is not left with any remedy other than any compensation that may
be provided under concerned statute.

In the case of Vaughan v. Taff Valde Rail Co., the sparks from the railway engine of defendant’s
company authorised, set fire the woods of plaintiff in the adjoining land. Since the authority was
provided under statute, the defendant was held not to be having any liability tort as the defence of
statutory authority was invoked.

In Smith v. London and South Western Railway Co., railway company’s servants left trimming of grass
and hedges near railway track in negligence and the sparks thus generated were carried by winds to
neighbouring cottage resulting in fire. Here, it was held that the defence of statutory authority does
not arise when there was negligence which was not covered under statute and thus defendants
were liable for the damages.

Absolute or conditional ( Authority given by the statute)

In absolute – even though nuisance or some other harm necessarily results, there is no liability for
the same

In condition – act authorized can be done provided the same is possible without causing nuisance or
some other harm.

Mistake
Mistake of fact or law is generally no defence. When a person wilfully interfers with the right of
another person it is no defence to say that he had honestly believed that there was some
justification for the same when in fact no such justification existed.

Exception: The defendant may be able to avoid his liability by showing that acted under an honest
but mistaken belief. For example for the wrong of malicious prosecution it is necessary to rpove that
defendant has acted maliciously and without reasonable cause and if the prosecution of an innocent
man is mistaken it is not actionable.
NEGLIGENCE
Jacob Mathew vs State of Punjab - Negligence is the breach of a duty caused by

1. omission to do something which a reasonable man guided by those considerations

which ordinarily regulate the conduct of human affairs would do, or
2. doing something which a prudent and reasonable man would not do.

Characterized into 3 forms

Nonfeasance: It means the act of failure to do something which a person should have done. For
example, failure to carry out the repairs of an old building when it should have been done.

Misfeasance: It means the act of not doing an action properly when it should have been done
properly. For example, Doing the repairs of an old building but doing so by using very poor quality
materials creating a major probability of a collapse which injures people.

Malfeasance: It means the act of doing something which should not have been done in the first
place itself. For example, using products that are not allowed and combustible to carry out the
repairs of an old building, therefore, converting the building into a firetrap leading to an accident.

TORT VS CRIME – NEGLIGENCE

TORT – It is the amount of damages incurred which is determinative of the extent of liability

CRIME – Amount & degree of negligence that is determinative of liability

In criminal, the degree of negligence has to be higher than that of negligence enough to fasten
liability for damages in civil law

The essential ingredient of mens rea cannot be excluded in consideration for criminal negligence.

ESSENTIALS
➢ A legal duty to exercise due care on the part of the party complained of
towards the party complaining

The plaintiff had to prove that the defendant owned to him a specific legal duty to take
care, of which he has made a breach. The case of Donoghue v. Stevenson (1932) GINGER BEER
CASE has evolved the principle that we each have a duty of care to our neighbor or someone we
could reasonably expect to be affected by our acts or omissions. It was held that, despite no contract
existed between the manufacturer and the person suffering the damage an action for negligence
could succeed since the plaintiff was successful in her claim that hat she was entitled to a duty of
care even though the defective good i.e a bottle of ginger beer with a snail in it was bought, not by
herself, but by her friend.

The duty depends on reasonable foreseeability of injury by the defendant to the plaintiff. In
deciding how much care is to be taken in a certain situation, one useful test is to enquire how
obvious the risk must have been to an ordinary prudent man. In the case of S Dhanaveni vs state of
Tamilnadu, the deceased fell into a pit and was electrocuted due to leakage of electricity. The
respondent who maintained the electric pole was considered negligent and was held liable for the
death of the deceased. No liability when injury not foreseeable. This reasonable foreseeability does
not mean remote possibility.

➢ Breach of the said duty

Breach of duty means non-observence of due care which is required in a particular situation. d
In the case of Blyth v. Birmingham Waterworks Co, it was observed that “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”

Determining the standard of due care required:

a) The importance of the object to be attained. A balance has to be drawn between the
importance of an act and the risk created thereby. Example, If we restrict all bike in our
country to go only in 5km/ hour there would be fewer accident but our life would be
slowed down.
b) The magnitude of risk. The expression ‘due’ connotes that degree of care which a
reasonable man ought to take, in a given set of circumstances. The kind of risk involved
determined the precaution which the defendant is expected to take.
c) The amount of consideration for which the service is offered. For example luxurious
hospital the service we expect is higher than compared with a free public hospital.

➢ Consequential 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. The harm may fall into the following
classes:- a.) Bodily harm b.) Harm to the reputation c.) Harm to property d.) Financial Loss
e)Mental Harm

PROOF OF NEGLIGENCE:
It is for the plaintiff to prove that the defendant was negligent. But once the onus is discharged it will
be for the defendant to prove that the incident was result of inevitable accident or contributory
negligence on the part of the plaintiff.

Res ipsa loquitur Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
Therefore this refers to a situation in which the facts of a case make it self-evident that the
defendant’s negligence caused the plaintiff’s injury or damages.
SHIFTING OF BURDEN OF PROOF - Although generally the duty to prove that the defendant acted
negligently lies upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain
circumstantial facts, it becomes the burden of the defendant to prove that he was not negligent.

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.

3 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.

Exception:
Contributory negligence on part of 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 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.

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.

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) Act of God

3) Inevitable accident
NERVOUS SHOCK

This nervous shock is through what he has heard or seen. In Wilkinson vs downton, the defendant
was held liable when the plaintiff suffered nervous shock and got seriously ill on being told falsely by
way of practical joke, by the defendant that her husband had broken both the legs in an accident.

In Bourhill vs Young the plaintiff a fishwife while getting out of a tramcar heard of an accident but
could not see the same as she was about 50 feet away from the scene. After the body of the motor
cyclist has been removed, the fishwife had to go to the scene of the accident and saw blood on the
road, As a result she suffered nervous shock and gave birth to a still born child. She sued the
personal representatives of the motor cyclist. The house of lords held that the deceased could not
be expected to forsee any injury to the plaintiff and therefore he did not owe any duty of care to her
and as such, his personal representatives could not be made liable
Nuisance
The word “nuisance” has been derived from the Old French word “nuire” which means “to cause
harm, or to hurt, or to annoy”.

Under normal circumstance, a person is entitled to the full and reasonable enjoyment and use of this
property tangible, intangible, movable or immovable, whatsoever. It is an unlawful interference
with a person’s use or enjoyment of land.

According to Salmond, nuisance consists in causing or allowing to cause without lawful justification,
the escape of any deleterious thing from one’s land or from anywhere into land in possession of the
plaintiff, such as water, smoke, gas, heat, electricity, etc.

According to Bermingham, Nuisance is an unlawful interference with a person’s use and enjoyment
of land, or of some right over, or in connection with it. Hence it is an injury or inconvenience faced
by a person in the use of his property because of another person who unreasonably uses his own
property in a way which negatively affects the forme

What is the difference between Nuisance and Trespass?

• Trespass requires entry into the property of the plaintiff (DIRECT) whereas nuisance is
indirect (CONSEQUENTIAL) and can take place from outside the property of the
plaintiff.

• Landowners have a right to enjoy their property, and it is when this right is interfered
with that the tort laws of nuisance and trespass come into action.

• There is interference with possession in trespass while it is not required in nuisance.

MINOR INCONVENIENCE

Minor inconveniences which are usually as a result of normal human interaction in the society are
not actionable in law. The law always tries to strike a balance between the conflicting interest of the
plaintiff and the defendant in the society. So we can define the tort of nuisance as an act which gives
rise to unlawful, unwarranted or unseasonable annoyance or discomfort to the plaintiff and which
results in damage to the property of the plaintiff or interfere with his use and enjoyment of his land.

Kinds of Nuisance
PUBLIC NUISANCE

1. Public Nuisance is a crime.

2. Public Nuisance Interference with the right of public in general.
 3. There is no civil action because there might be hundrers of action for a single act of public
nuisance. Only when a person suffers particular damage different from what is inflicted on
public as a whole, a civil right of action is available to the person injured

Example: obstructing a public way by digging a trench.

PRIVATE NUISANCE or TORT OF NUISANCE

Private nuisance is a civil wrong. The following are the essentials

1. Unreasonable interference

Every interference is not nuisance. The interference must be unreasonable. 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.

2. Interference with the use of enjoyment of land

Injury to the property itself

With regards to right of support mere removal of support is not actionable substantial damage has
got to be proved. Section 34 of Indian Easement Act states that “The removal of means of support to
which a dominant owner is entitled does not give rise to a right to recover compensation, unless and
until substantial damage is actually caused”

But considering the right to light and air – The prescriptive right of easement of access and use of
light and air can be acquired if the light has been 1. Peaceably enjoyed 2. As an easement 3. As of
right 4. Without interruption 5. For 20 years. Therefore when there is a substantial infringement of
an easement of lights and air the same is actionable by an action for damages

Injury to the comfort of health of the occupants of the property

3. Damage

Tresspass – Actionable per se (whereas) Nuisance – actual damage must be there

Usually the law would presume there is damage. Example in Fay vs Pretice, the mere fact that
cornice projected over the plaintiff garden raises a presumption of fall of rainwater into and damage
the garden. It was a nuisance.

Defeneces
1. Prescriptive right to commit nuisance – A right to commit such private nuisance maybe
acquired as an easement if the same has been peaceably and openly enoyed as an easement
and as of right without interruption and for 20 years
2. Statutory authority
TRESSPASS TO THE PERSON
There are three main wrongs which fall under the umbrella of trespass to the person:

1. Assault,
2. Battery and
3. False imprisonment

A person liable in tort for assault, battery or false imprisonment will not face a sentence. Instead,
they will be ordered to pay damages to their victim.

BATTERY
Intentional application of force to another person without any lawful justification. Its essential
requirements are:

1. There should be use of force: Even force is trivial the wrong is constituted, physical hurt
need not be there, least touching is battery. It is not necessary for the physical contact to
cause any injury or permanent damage to the victim, or even be intended to do so. The only
intention required is that of making physical contact. It is also not necessary for the
tortfeasor, that is, the wrongdoer, to actually touch the victim, so battery may be committed
by throwing stones at someone or spitting on them.

2. The same should be without any lawful justification -

If the physical contact that is apprehended in an assault actually takes place, then the tort of battery
has been committed.

If the harm is voluntarily suffered then there is no battery. Forcibility feeding a hunger strike person
or operation of an unconscious person by a competent surgeon

FALSE IMPRISONMENT
• Imposition of total restraint for some period, however short, upon the liberty of another,
1. So if a person is not allowed to go in a particular direction but can go back then there is no
false imprisonment according to Torts. Therefore there must be total restraint.
2. If there is a easy means of escape there is no false imprisonment
• without sufficient lawful justification.

Bhim singh vs state of JK is an example

Remedies:

1. Action for damages

2. Self help – reasonable force to escape
3. Habeas corpus
ASSAULT
Assault is an act of defendant which causes to plaintiff reasonable apprehension of the infliction of a
battery on him by the defendant. Assault precedes battery

ESSENTIAL:

Prima facie ability to do the harm – Reasonable apprehension in the plaintiff’s mind that immediate
force will also be used

Example: Mere verbal threat is no assault unless Reasonable apprehension in the plaintiff’s mind
that immediate force will also be used. If a fist is shown by a person in a moving train to a person on
a platform is not assault.

Not every battery would include a assault because sometimes someone would hit from backside.
TRESPASS
What is trespass?

1. Trespass to land means interference with the possession of land without lawful justification
or
2. Going beyond the purpose for which a person has entered certain premises or
3. Crossing the boundary where he has the authority to go

if the area to which a person is lawfully invited and one which is the prohibited area has not been
properly marked, a person does not become a trespasser merely by going beyond the area of
invitation- Pearson v Coleman Brothers

Tresspass can be committed by a person himself entering the land of another or doing the same
through material object.

In trespass, the interference with the possession is direct and through some tangible object. If not
direct but consequential it becomes Nuisance.

❖ To throw stone on neighbour’s house is trespass

❖ Allowing smoke and small stone type dust on neighbour’s house is nuisance

❖ Planting tree on others land is trespass

❖ Planting tree in his own land but the branch and root escapes to the land of neighbour it
becomes nuisance.

To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage is
necessary. Trespass is actionable per se. Trespass is a wrong against possession rather than
ownership.

Trespass ab initio — When a person enters certain premises under the authority of some
law and after having entered there, abuses that authority by committing some wrongful act there,
he will be considered to be a trespasser ab initio to that property. The plaintiff can, therefore, claim
damages, not only for the wrongful act subsequently done by the defendant but even in respect of
original entry which is now considered to be a trespass.

The defendant must be guilty of positive act of misfeasance. In Six Carpenters’ case, six carpenters
entered an inn and ordered some wine and bread. After having taken the same, they refused to pay
for that. They had done no act of misfeasance and mere non-payment being only nonfeasance, there
was held to be no trespass ab initio
Entry with a licence
Entering certain premises with the authority of the person in possession amounts to a licence and
the defendant cannot be made liable for trespass. Eg- Permitting a person to cut a tree on one’s
land. the licences are considered to be of two kinds:

(i) a bare licence, and

(ii) a licence coupled with a grant.

A bare licence can be revoked, whereas a licence which is coupled with the grant cannot be revoke

In Wood v. Leadbitter, the plaintiff having purchased a ticket went to see a horse race and the
defendants were the occupiers of the racecourse. While the races were still going on, the
defendants asked the plaintiff to leave the premises and on his refusal to comply with mat, he was
forcibly ejected by the defendant’s servants. The plaintiff brought an action for assault. It was held
that the revocation of the licence was effectual and after the revocation of the licence, the plaintiff
had become a trespasser and ejection of the trespasser out of the premises was not an actionable
wrong

The decision in Hurst v. Picture Theatres Ltd. is just to the opposite effect. The plaintiff, after due
payment, purchased a ticket to see a cinema show at the defendant’s theatre. He was wrongly
suspected of having entered without a ticket and was asked by the management to leave the hall.
On his refusal to do that, the defendant’s gatekeeper physically lifted him out of his seat and then
the plaintiff himself quietly walked out of the cinema hall. The plaintiff then sued for assault and
false imprisonment. The licence to the plaintiff, in this case, was considered to be with a grant and it
was held that the same could not be revoked. The revocation being invalid, the plaintiff was not a
trespasser to the defendant’s premises and as such, he was held entitled to recover substantial
compensation from the defendant for assault.

REMEDIES

Re-Entry - If a person’s possession had been disturbed by a trespasser, he has a right to use
reasonable force to get a trespass vacated. A person, who is thus entitled to the immediate
possession, uses reasonable force and regains the possession himself, cannot be sued for trespass.
Ousting a trespass by a person having a lawful right to do so is no wrong. Thus, in Hemmings v.
Stoke Poges Golf Club, the plaintiff had been in the employment of the defendants. On the
termination of the service, the plaintiff was given proper notice to quit the house. On his refusal to
do so, the defendants, by the use of reasonable force, themselves entered those premises and
removed the plaintiff and his furniture out of it. The defendants were held not liable.

Action for ejectment - Section 6, Specific Relief Act, 1963 gives a speedy remedy to a person who
has been dispossessed of immovable property otherwise than in due course of law.

“If any person is dispossessed without his consent of immovable property otherwise than in due
course of law, he or any person claiming through him may, by suit recover possession thereof,
notwithstanding any other title that may be set up in such a suit. No suit under this section shall be
brought after the expiry of six months from the date of dispossession…”
This is a speedy remedy where the person, who had been dispossessed of certain immovable
property, without due course of law, can recover back the property without establishing any title.
Even-a person claiming a superior title has no right to evict any other person without due process of
law and if he dispossesses another by taking the law into his own hands, the persons dispossessed
will be restored back the possession under the above-stated provision.

Action for Mesne profit - Apart from the right of recovery of land by getting the trespasser ejected, a
person who was wrongfully dispossessed of his land may also claim compensation for the loss which
he has suffered during the period of dispossession. Mesne profits refer to the profitts taken by the
defendant during the period of his occupancy. An action to recover such compensation is known as an
action for mesne profits. Section 2 (12) of the Code of Civil Procedure provides that: “Mesne profits”
of property means those profits which the person in wrongful possession of such property actually
received or might with the ordinary diligence have received therefrom, together with interest on such
profits but shall not include profits due to improvement made by the person in wrongful possession.

Distress Damage Feasant/Seizure/Detention - The right of distress damage feasant authorizes a

person in possession of land to seize the trespassing cattle or other chattels and he can detain them
until compensation has been paid to him for the damage done. The idea is to force the owner of the
chattel to pay compensation and after the compensation has been paid, that chattel is to be
returned.

DEFAMATION
Defamation is an injury to reputation of a person. Man’s reputation is considered to be his property,
more precious than any other property.

1. Libel - permanent form (Writing, printing, picture, statute, video) - Eye

2. Slander - Transient form ( Words spoken or gesture) - Ear

Under English Law, the distinction between libel and slander is material for two reasons;

1. Under criminal law, only libel has been recognized as an offence. Slander is no offence.
2. Under law of torts, slander is actionable, save in exceptional cases, only on proof of special
damage. Libel is always actionable per se i.e. without the proof of any damage.
In Indian law there is no distinction both libel and slander are criminal offence under section 499 of
IPC. Both libel and slander are actionable per-se.

In DP Choudry vs Manjulata it was held that all defamatory words are actionable per se and in such
case general damages will be presumed.

ESSENTIALS OF DEFAMATION

The Statement must be defamatory – lower a person in the estimation of right thinking members of
society. Intention to defame is not necessary. Morrison vs Rithie & Co the defendant in good faith
published a mistaken statement that the plaintiff had given birth to twins. The plaintiff had been
married only two months back. Even though defendants were ignorant of fact, they were held liable.

Refer to the plaintiff – The plaintiff has to prove that the statement of which he complains referred
to him. It is immaterial that the defendant did not intent to defame the plaintiff. If the person to
whom statement was published could reasonably infer that the statement referred to the plaintiff,
the defendant is nevertheless liable.

Defamation of a class of person then only affected members of the group can sue to point to the
particular individual. Example: “All lawyers are thieves” is not actionable.

Defamation of a deceased person is no tort.

Must be published – Making the defamatory matter known to some person other than the person
defamed and unless that is done, no civil action for defamation lies.

DEFENCES:
JUSTIFICATION OR TRUTH

Under civil law this is a defence, whereas in criminal law besides truth there must also be public
good. The defense is available eventhough publication is made maliciously

FAIR COMMENT

• It must be a comment i.e expression of opinion rather than assertion of fact

• The comment must be fair
• Public interest matter

Absolute privilege and qualified privilege

Law recognized that the right of free speech outweighs the plaintiff’s right to reputation.

Absolute – No action lies for defamatory statement eventhough the statement is false or malicious.
Like parliamentary or judicial proceeding or state communication like statement made by military or
minister

Qualified - unlike absolute, here it must be proved that the statement must have been made
without malice.
 ❖ Statement was made on a privileged occasion i.e it was in discharge of duty or protection of
an interest or it is a fair report of parliamentary, judicial or other public proceeding
❖ The statement was made without any malice

REMOTENESS OF DAMAGE
INTRODUCTION

The general principle of law requires that once damage is caused by a wrongful act, liabilities have to
be assigned. But, as many cases have shown, assigning liabilities is not always a simple task at hand.
Once a wrongful act has been committed (tort), it can have multiple consequences. The
consequences can have further consequences. These ‘consequences of consequences’ can become a
long chain and at times the problem of the liability of the defendant comes up. The question that
this particular topic deals with is “How far can the defendant’s liability be stretched for the
‘consequences of consequences’ of the defendant’s tort?”

In the case of Liesbosch Dredger v. S.S. Edison:

“The Law cannot take account of everything that follows a wrongful act; it regards some subsequent
matters as outside the scope of its selection, because it was infinite of the law to judge the causes of
causes, or consequences of consequences. In the varied web of affairs, the law must abstract some
consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons.”

To answer such questions, jurists propose that a defendant should be made responsible only for
the consequences which were proximate (and not remote) consequences of the defendant’s
wrongful act.

In the case of SCOTT VS SHEPHERD a person A threw a lighted squib into a crowd. The squib fell on a
person B. B, in order to prevent injury to himself, threw that squib further. It landed on another
person C, who in turn threw it further and it finally exploded on a person D, thereby injuring him. As
a result of the explosion, D lost one of his eyes. In this case, A was held liable to D. Although one
would say that his act was ‘the farthest from the injury to D’, his act was held to be a proximate
cause of the injury to D.

In Haynes vs hardwood one defense placed was novus actus interveniens (remoteness of
consequences) - intervening act that can separate or break off the legal connection between a
defendant’s conduct and the final injury. The Court held that novus actus interveniens was not a
valid defence and that the negligent act of the defendant’s servants leaving the horse van
unattended as the proximate cause of the injury suffered by the plaintiff.
Two tests of remoteness during the course of legal history:
1. Test of reasonable foresight - if the consequences of a wrongful act could have been foreseen by
a reasonable man, they are not too remote.

2. Test of directness - s, a person is liable for all the direct consequences of his act, whether he could
have foreseen them or not; because consequences which directly follow a wrongful act are not too
remote. Example: Firing a place

Re Polemis and Furness, Wilthy & Co

The relevant facts of the case are that the defendants chartered a ship to carry cargo. The cargo
included a quantity of Petrol and/or Benzene in tins. There was a leakage in the tins and some oil
was collected in a hold of the ship. Now, owing to the negligence of the defendant’s servants, a
plank fell in the hold and consequently sparks were generated. As a result of those sparks, the ship
was totally destroyed by fire. In this case, the Privy Council held the owners of the ship entitled to
recover the loss, although such a loss could not have been foreseeably seen by the defendants. It
was held that since the fire (and the subsequent destruction of the ship) was a direct consequence
of the defendant’s negligence, it was immaterial whether the defendant could have reasonably
foreseen it or not. As per Scrutton, L.J.: “Once an act is negligent, the fact that its exact operation
was not foreseen is immaterial.”

Wagon Mound Case ( Test of Reasonable foresight)

The Wagon Mound was a ship which was chartered by the appellants (Overseas Tankship Ltd.). It
was taking fuel at a Sydney port at a distance of about 180 metres from the respondent’s wharf. The
wharf had some welding operations going on in it. Owing to the negligence of the appellant’s
servants, a large quantity of oil was spilt on the sea which also reached the respondent’s wharf. Due
to the welding operations going on there, molten metal (from the respondent’s wharf) fell, which
ignited the fuel oil and a fire was caused. The fire caused a lot of damage to the respondent’s wharf
and equipment. In this case, the trial court and the Supreme Court held the appellants liable for the
damage to respondents based on the ruling in Re Polemis. But when the case reached the Privy
Council, it was held that Re Polemis could not be considered good law any further and thus the
decision of the Supreme Court was reversed. It was held that the appellants could not have
reasonably forseen

Lord Viscound Simonds observed: “It does not seem consonant with current ideas of justice or
morality that, for an act of negligence, … the actor should be liable for all consequences, however
unforeseeable.” They also maintained that “according to the principles of civil liability, a man must
be considered to be responsible only for the probable consequences of his act”.

The test of reasonable foresight regained its authority to determine the remoteness of damage and
subsequently the liability of a person for the damage caused by him in cases of tort.
VICARIOUS LIABILITY
Vicarious liability is the liability of a person for an act of another person because of their relationship
with each other.

Every person is liable for acts, the person commits and not liable for the acts done by others but in
some situations when a person is liable for the acts of another person is known as vicarious liability.
So, for this to happen there must be a specific kind of relationship between both the people and the
act must be connected with the relationship. These relationships can be of a master and servant or
principal and agent.

Vicarious liability is based on the principle of ‘qui facit per se per alium facit per se’, which means
‘He who does an act through another is deemed in law to do it himself’.

PRINCIPAL AND AGENT

One person will authorize other to do a tort. The authority to do the act may be express or implied.
The principal generally does not expressly ask his agent to do the wrongful act, but when the agent
acts in the ordinary course of performance of his duties as an agent, the principal becomes liable for
the same.

Lloyd vs Grace, Smith and Co:

A managing clerk misappropriated the property of the client defrauding it as sale deed but in actual
it was a gift deed. This was done without the knowledge of the principal but the agent was acting in
the course of his authority. The principal was made liable for the fraud.

State bank of India vs Shyama Devi:

Plaintiff husband gave some amount and cheque to his friend who was an employee in the
defendant bank, to deposit in plaintiff account. But the bank employee misappropriated the
amount. The court held that when he committed the fraud was not acting in the scope of bank’s
employment but in private capacity as a depositor’s friend

For purpose of vicarious liability, even a friend who was allowed for driving my car for me, may be
my agent.

In Tirlok Singh vs Kailash Bharathi the owner of the motor cycle was outside the country, his
younger brother took the cycle without consent or knowledge or permission. It was held that
Younger brother could not deemed to be an agent of brother.

PARTNERS –

Relationship as between partners is that of principal and agent. The rules of the law of agency apply
in the case of their liability. For the tort committed in the ordinary course of business of the firm, all
the other partners are liable. The liability of each partner is joint and several. \
MASTER AND SERVANT
If a servant does a wrongful act in course of employment, the master is liable for it.

PRINCIPLE – “Respondent superior” – “Let the principal be liable”

The reasons behind holding the master liable for the actions of his servant are:

1. A servant is just an agent who is controlled and supervised by his employer. So, the servant
works according to the master which means he works in the manner the master wants the
work to be done. So, the liability for the actions of the servant must be of the master.
2. The master always enjoys the profit derived from the efforts of the servant, so he must also
bear the loss that occurred by the activity of the servant but only in the course of
employment.
3. The master is financially stable than that of a servant. So, the master is more suitable to
pay for the damages caused by the tortious act of the servant. But the masters are
allowed to take reasonable care and precautions to prevent himself from such situation

The plaintiff has a choice to bring action against either or both of them. The two essentials are

❖ The tort was committed by the “servant”

❖ The servant committed the tort in the “Course of employment”

SERVANT & INDEPENDENT CONTRACTOR:

Master is liable for the acts of the servant and not that of the independent contractor.

Servant – control and supervision of the employer (Contract of service )

IC – No such control (Contract for service)

A contract for service is required when one wants to engage the services of a third-party as
an independent contractor for a specific project or short-lived purpose. A contract of service
is that of employment and is entered with employees who engage and perform services with
the company on a day-to-day basis.

Govindarajulu vs MLA Govindarajalu – after a motor lorry was entrusted by owner for
repairs, the employee of the repair workshop drove it and there was accident. The owner
was held not vicariously liable because the owner of workshop was an independent
contractor and not servant.

Exception in case of independent contractor:

a) Employer authorizes in doing illegal act or subsequently ratifies the same

b) Strict liablilty – Example Ryland vs Fletcher escape of water reservoir constructed by
independent contractor.
c) Dangers caused on or near the highway. In tarry vs Ashton the plaintiff was injured
by the fall of lamp overhanging the footway adjoining the defendants house. The
lamp was attached by an independent contractor. It was held that it was defendants
duty to see that the lamp was reasonably safe there.
SERVANTS NOT UNDER THE CONTROL OF THE MASTER
There are situation in which the master does not or cannot control the way in which the work is to
be done. Eg: Captain of a ship/ surgeon in a hospital maybe servants

Hire and fire test viz a person who employs another and is his pay master and has the power to fire
him is his master for the purpose of vicarious liability.

Therefore if it is only control test then surgeons won’t be made liable.

HOSPITAL CASES:

In Cassidy vs Ministry of health the hospital authorities were held liable when, due to negligence of
the house surgeon.

LENDING SERVANT TO ANOTHER PERSON:

Who is entitled to give orders as to how the works should be done. The power of control is
presumed to be in the general employer and the burden of proving the existence of that power of
control in the hirer rests on the general employer.

CASUAL DELEGATION OF RELATIONSHIP:

Not necessary there must be a long term master servant relationship. Even when a person for a
single transaction authorizes another to do something for him and the latter does it negligently, the
former can be made liable for the same.

COURSE OF EMPLOYEMENT:
Master liable - not limited to act which he expressly authorizes but also under course of
employment. An act is said to be done in course of employment. If it is either,

a) Wrongful act authorized by the master or

b) Wrongful and unauthorized mode of doing some act authorized by the master

FRAUD/THEFT/MISTAKE/NEGLIGENCE OF SERVANT:-

When a servant, while in course of the performance of his duties as such, commits fraud the master
would be liable for the same. The master will be liable even though the servant was acting for his
own benefit, rather than that of the master. Even for theft by servant, master would be made liable
was observed in the case o morris vs CW martin and songs ltd.

OUTSIDE COURSE OF EMPLOYEMENT:

If a workman goes on a frolic of his own rather than doing something which is connected with the
performance of duties the master cannot be made liable for the same. Ex: A master lends his car to
servant for the servant’s private use then master wont be made liable. ( Example: SBI vs Shyama
Devi)
EFFECT OF EXPRESS PROHIBITION:

Sometimes the employer forbids his servant in doing some act. It does not necessarily follow that an
act done in defiance of the prohibition is outside the scope of employement. If prohibition were to
be a defense, every employer would escape the liability by issuing orders to his servants forbidding
them from committing any tort.

DOCTRINE OF COMMON EMPLOYMENT

Exception to the rule that master is liable for the wrongs of his servant committed in the course of
his employment. The doctrine was that a master is not liable for the negligent harm done by one
servant to another fellow servant acting in the course of common employement.

But in India this doctrine is not applicable. The courts usually make the master liable

VICARIOUS LIABILITY OF THE STATE

Article 300 of the constitution deals with state liability. Article 300 considers UOI and state as jurisitic
person. Therefore it was observed in case of peninsular and oriental steam navigation company vs
Secretary of state – Act was done in exercise of sovereign function then state would be made liable.
Act of state is a defence which a state cannot have against its own subject. Therefore the state is
liable towards its own subject, just like an ordinary employer.
RULES OF STRICT AND ABSOLUTE
LIABILITY
Ryland vs fletcher – Rule of strict liability ( There is exception )
The rule was recognized as “no fault liability.” The liability recognized was strict liability i.

• even if the defendant was not negligent or rather,

• even if the defendant did not intentionally cause the hard or
• he was careful

FACTS:

The defendant owned a mill and wanted to improve its water supply. For this purpose, he employed
a firm of reputed engineers to construct a reservoir nearby. The engineers, who were independent
contractors of the defendant, were clearly at fault. This is because they were negligent in
constructing the reservoir. This is exactly what the defendant also said for avoiding his liability. The
court, however, disagreed and explained the strict liability rule. It said that when somebody keeps
something on his property for his benefit, it should not escape and affect others. In case it so
escapes, the owner of that thing must compensate the victim even if he was not negligent.

THREE ESSENTIALS:

1. Some dangerous thing must have been brought by a person on his land. Eg: Water,
Poisonous trees, sewage, explosives, rusty wires, etc.
2. The thing thus brought or kept by a person on his land must escape. Example: If the
poisonous tree is within house and if a horse in next house comes inside and eats it there is
no offence but if the leaves branches goes to next building and the horse there eats it, then
he is liable.
3. It must be non-natural use of land. Example must be some special use bringing it increased
dangers to others and must not merely by the ordinary use of land or such a use as is proper
for the general benefit of the community

In strict liability you can take general defences

MC Mehta vs Union of India – Rule of absolute liability ( No exception)

. In this case, harmful Oleum gas had escaped from a factory owned by Shriram Foods & Fertilizer
Industries. The gas had caused a lot of damage to people and industries nearby. The Supreme Court
held that, despite being so stringent, the strict liability rule was inadequate in modern times. This is
because scientific advancements have made modern industries even more dangerous and
hazardous. Hence, the court laid down the absolute liability rule in this case.

According to the absolute liability rule, no exceptions of strict liability shall apply in certain cases.
Therefore, the people who cause damage will have unlimited liability to compensate victims
adequately.

Justification of absolute liability:

1. The hazardous substance was done for private profit has a social obligation to compensate
those suffering
2. The enterprise alone has the resources to discover and guard against such hazards and
danger.

Even in environment protection case like Indian council for enviro-legal action vs Union of India,
imposes absolute liability because there would be violation of Article 21.

There is public liability insurance act, 1991 which aims at providing for public liability insurance for
the purpose of providing immediate relied to the persons affected by accident occurring while
handling any hazardous substance for matters connected therewith or incidental thereto.