NEGLIGENCE

1) Define “Negligence”. Explain the essentials of

negligence alongwith decided cases. (Jun
2022, Dec 2019)

Introduction
“Negligence”, means, “A duty is imposed on a person by law
to act with care towards others, if this duty exists and there is a
failure to act carefully and another suffers loss, then the tort of
negligence is committed”.
Meaning
The term “Negligence” is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense,
the tem negligence means the act of being careless and in the legal
sense, it signifies the failure to exercise a standard of care which the
doer as a reasonable man should have exercised in a particular
situation.
Definition
Prof. Winfield defined 'Negligence' as "the breach of a legal
duty to take care, which results in damage, undesired
by the defendant to the plaintiff”.
Baron Alderson in –
Blyth Vs Birmingham Water Works Co.,
Defined "Negligence is the omission to do something, which
a reasonable man guided upon those considerations, which
ordinarily regulate human affairs, would do or doing
something, which a prudent or reasonable man would not
do".
 Basically there are two theories about the negligence in the
law of tort. They are –
–2–

1) Subjective Theory- According to this theory of Salmond,

negligence denotes “State of mind‟. This state of mind varies from
person to person and the person is liable only for his intentional acts
only and not otherwise. It involves a personal element. If a person
has acted to the best of his ability then he cannot be held liable for
negligence.
2) Objective Theory – According to this theory of Pollock,
negligence is a type of conduct which a reasonable man can avoid
with a reasonable degree of care and caution.

Essentials of Negligence
Three basic constituents must be proved for the Plaintiff to be
successful in negligence –
(a) Duty of Care (Defendant’s duty of care towards the Plaintiff)
(b) Breach of Duty (Defendant committed a breach of such duty)
(c) Consequential damage

(a) Duty of Care (Defendant’s duty of care towards the Plaintiff)

Duty of care is a specific Legal obligation to not harm others
or their property. It means a legal duty rather than a mere moral,
religious or social duty.
2) Rashmi purchased a “Pepsi” from retail shop owner.
While drinking she found an insect in it. Rashmi wants to take
legal action. Advise her.
(Jun 2022)
 The Plaintiff has to prove that the Defendant owed a duty of
care towards him. This question came for discussion in the following
leading case –

–3–

Donoghue Vs Stevenson, (1932) A.C. 562;

In the instant case Lord Atkin laid down
(evolved/coined) the Principle of 'Neighbourhood' to
decide the existence of such duty of care.
Facts in Brief
The Plaintiff/Appellant, while consuming ginger beer in a
restaurant, found the decomposed body of a snail in the remaining
part. Consequently, she suffered ill-health and sued the
Manufacturer. The trial Court dismissed the suit. On appeal to the
House of Lords, Lord. Atkin J., held the manufacturers
(Defendant/ Respondent) liable.
Principle laid down
Lord. Atkin, while delivering the judgment laid down the
principle of 'neighbourhood', which says 'you just take reasonable
care to avoid acts or omissions which you can reasonably foresee
would likely to injure your neighbour'. The expression 'neighbour'
denotes every person, who is likely to be affected as a consequence
of not taking care,
The defendant has a duty to take care towards the plaintiff,
if the injury is foreseeable. If the injury is not foreseeable, the
defendant owes no duty of care towards the plaintiff.

Palsgraf Vs Long Island Rail Road Co. (1928);

The Defendant railway servants, with an intention to help a
passenger to board the moving train, pushed him in. A packet in
 his hand fell on rails and exploded. Consequently, some scales at a
distance of 25 feet fell down and injured the Plaintiff. In an action
by the Plaintiff, the defendants were held not liable on the ground
that the injury was not foreseeable.
–4–

3) A child of seven years ate the attractive berries in the

municipal park. The berries were poisonous. The child died. Can
the municipality be made liable?
(Jun 2019)

Glasgow Corporation Vs Taylor, (1922) 1 AC 44;

Facts of the Case
The father of a seven-year-old boy sued the Glasgow
Corporation for damages following the death of his son who died
as a result of eating berries from a poisonous plant that was
growing in the Botanic Gardens in Glasgow. The gardens were
open to the public and managed by the Defendant. The father
argued that the Defendants allowed children to pass through their
grounds frequently yet did not take any action to warn or alleviate
the danger caused by the poisonous plant to children. The plant
was enclosed by a wooden fence which was open to the public and
easily accessed by children.
Issues
The question for the Court was whether this raised any
grounds of appeal for there to be a trial against the Defendants for
their liability. It was important for the court to consider in this case
whether the Defendant was negligent in the death of the claimant. It
was particularly important to understand the steps that the Defendant
had taken to prevent the danger caused by the fact that the poisonous
berries in question would be particularly attractive to young children.
Decision / Outcome
 The Court held that the Glasgow Corporation was liable in
this instance. They had permitted children to go on to the land and it is
understandable that the berries would have appealed to visiting
children, thus representing a danger. The Defendants were aware of
this danger caused by the poisonous berries and did nothing to prevent
the damage. On this basis, the action was required to proceed to trial.

–5–

4) The husband of the appellant boarded a bus, he was just

in the foot board, and the driver attempted to overtake another
stationary bus so closely, that the husband got severe injuries and
died. The widow claims compensation. (Dec 2019, Dec
2021)

Rural Transport Service Vs Bezlum Bibi, AIR 1980 Cal

165;
The conductor of an overloaded bus invited passengers to
travel on the roof of the bus. On the way, the bus swerved on the
right side to overtake a cart. One of the passengers on the roof of
the bus, Taher Seikh, was struck by an overhanging branch of a
tree. He fell down and received multiple injuries on the head,
chest, etc. and as a consequence thereof he died. In an action by
Bezlum Bibi, the mother of the deceased, it was held that there was
negligence on the part of both the driver and the conductor of the
bus, and the defendant was held liable for the same. In this case, it
was observed, "that inviting passengers to travel precariously on
the top of an overcrowded bus is itself a rash and negligent act
and that apart when passengers were being made to travel on the
roof, a greater amount of care and caution on the part of the
driver was called for”.
Ishwar Devi Vs Union of India, AIR 1969 Del 183;
One Sham Lai Malik, the deceased, boarded one D.T.U.
bus when the same arrived at the bus stop. Just when he had placed
his foot on the foot board of the bus and had not yet gone in, the
conductor in a very great haste rang the bell and the driver started
the bus. The driver made an attempt to overtake another stationary
bus so closely that the deceased got squeezed between the two
buses and sustained serious injuries which ultimately resulted in
his death. In an action by the widow of the deceased, it was held
that both the

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driver and the conductor were rash and negligent in not taking
proper care of the safety of the passengers. It was observed that
"the safety of the public who travel by public conveyances like the
bus in question is the primary concern of the conductor and the
driver, who are in charge of public conveyances. When the
conductor saw that the deceased, Sham Lai, was boarding the bus
and was still on the foot board, he should not have given the bell
for the starting of the bus, but should have waited till Sham Lai got
inside the bus. To have given the bell and thus signalled the driver
to start the bus is nothing but rashness and negligence on the part
of the conductor.

Sushma Mitra Vs MP State RTC, AIR 1974 MP 63;

The Plaintiff was traveling in a bus belonging to the MP
State Road Transport Corporation, resting her elbow on the
window sill. The bus was moving on the highway outside the town
area. A truck coming from the opposite direction hit her in her
 elbow as a result of which she received severe injuries on her
elbow. The bus and the truck, however, did not come in contact
with each other. Taking into account the fact that the habit of
resting elbow on the window of the bus is so common, it was held
that even if such conduct was negligent and foolish, it must enter
into contemplation of a reasonable driver. The drivers of both the
bus and the truck owed a duty of care for the safety of the Plaintiff
as while driving or passing a vehicle carrying passengers, it is the
duty of the driver to pass on the road at a reasonable distance from
the other vehicle so as to avoid any injury to the passengers whose
limbs might be protruding beyond the body of the vehicle in the
ordinary course.

–7–

Reasonable Foreseeability does not mean Remote Possibility

To establish negligence, it is not enough to prove that the
injury was foreseeable, but a reasonable likelihood of the injury has
to be shown because –
* Foreseeability does not include any idea of likelihood at all.
* The duty is to guard against probabilities rather than bare
possibilities.

5) The defendant left his car with leaving his dog inside,
and went for shopping. When he came back, he was told that the
dog broke the glass of the car and splinter of the glass fell in to the
plaintiff's eye and blinded him. Decide his liability. (Dec
2021)

Fardon Vs Harcourt Rivington, (1932) 146 LT 391;

 Facts of the Case
The Defendant was travelling in his car with his dog. At one
place, after parking the car, he got down but left the dog in his car and
shut the door. Dog was quiet and docile. But the dog was jumping
inside the car and creating all the nuisances and smashed window.
One of the glass pieces as a splinter penetrated one eye of the Plaintiff
who was passing across.
The Plaintiff brought an action against the defendant for
damages. Lord Dunedin did not find the defendant responsible for
the accident as he observed-"this is such an extremely unlikely event
that I do not think any reasonable man could be convicted of
negligence”. It was held that the accident was unlikely and was not
negligence of defendant. Therefore, defendant was not liable.

–8–

6) The Defendant was the owner of a cinema house adjoin

a public road he had put up a hoarding with wooden frame from
the roof of his house projecting on the road. It fell upon the
Plaintiff and injured him. Decide.
(Dec 2019)

Manindra Nath Vs Mathuradas, AIR 1946 Cal 175;

In this Case, where the Defendants had erected a large
hoarding on the top of a cinema theatre. A wooden-framed banner
on the hoarding crumbled and fell on the Plaintiff’s head during a
strong storm, inflicting serious injuries. The Plaintiff filed a
lawsuit for damages, while the Defendants claimed that the
incident was caused by an Act of God. It was discovered that there
 was no device in the hoarding frame by which the banners could be
kept firmly and securely in place. It was determined that the
hoarding was placed improperly due to gross carelessness and a
breach of duty. During rainy conditions, proper care was not taken
to attach the banner in such a way that it would not be blown into
the street. The Defendants should have been able to see the
severity of the rains and storms and taken adequate precautions to
avoid such tragedies.

(b) Breach of Duty

The Plaintiff has to prove that the Defendant committed a
breach of duty. Breach of Duty means, “Non-observance of a duty or
failure to take care". Whether the Defendant had taken necessary
care (standard of care) or not depends upon the following factors –
(i) Importance or Utility of the Act;
(ii) Gravity of the risk; and
(iii) Cases of Emergency.

–9–

(i) Importance or utility of the act

The extent of care to be taken by the Defendant depends upon the
nature of the act, he was performing. E.g. Establishment of a fertilizers
factory may cause harm to the surrounding people. But the production of
fertilizers increases the output of food grains and promotes economy of the
nation.
Latimer Vs A.E.C. Ltd. (1953) AC 643;
Due to heavy rain, the respondents' factory was flooded
with water. There was an oily layer, on the floor of the factory,
which became slippery. The Respondents spread saw dust over it
but some areas were left uncovered due to inadequate supply of
 saw dust. The Appellant, an employee slipped and got injured. He
sued the Respondents for negligence. It was pleaded that, the
Respondents should have closed the factory as a precautionary
measure to avoid such accidents.
House of Lords held that it was not justified to close the
factory providing employment to over four thousand workmen.
The Respondents were held not liable for negligence.

(ii) Gravity of Risk

The degree of care to be taken by the Defendant, depends
upon the gravity of risk involved in the act. A person handling
explosives or dangerous substances has to take greater care, when
compared with a person handling non-dangerous substances.
Bhagwat Sarup Vs Himalaya Gas Co. (1986) ACJ 998;
The Plaintiff booked a cooking gas cylinder with the
Defendant, an agent in Shimla. The Defendant's servant while
delivering the cylinder, opened it by knocking with an axe. There

– 10 –

was a leakage of gas. It caught burning fire and resulted in the

death of Plaintiff's daughter, injuries to others and damage to
property. In an action by plaintiff, the Defendant was held liable
for the negligence of his servant.

(iii) Cases of Emergency

To observe standard of care, certain speed limits are
prescribed for motor vehicles within the town limits. This restriction
is liberalised in respect of emergency cases. For instance, excessive
speed by Fire Engines to rescue fire accident victims.
(c) Consequential Damage to the Plaintiff
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
When such damage is proved, the defendant is bound to
compensate the plaintiff for the damages occurred.
Joseph Vs Dr George Moonjely (1994);
The Kerala High Court awarded damages amounting to Rs
1,60,000/- against a surgeon for performing an operation on a 24
year-old girl without following proper medical procedures and not
even administering local anaesthesia.
– 11 –

RES IPSA LOQUITUR

(Exception to the rule "Proof of Negligence")

In an action for negligence, the Plaintiff has to prove the breach

of duty to take care on the part of the Defendant. But, there are certain
circumstances, in which the Plaintiff will succeed without Proof of
Negligence on the part of the Defendant.
This exception is enshrined in the Latin maxim 'Res Ipsa
Loquitur'. It means 'the thing speaks for itself;
 According to Lord Shaw, sometimes, a thing tells its own
story. According to this maxim "the defendant may be presumed to be
negligent without (but for) which the accident would not happen”.
Relevant Case Law –
7) ‘A’ while walking on the foot-path (pavement) a barrel
of flour falls from the first floor. In consequence of that ‘A’
injured. He wants to sue the owner. Advice.
(Jun 2022)

Byrne Vs Boddle (1863) 2 H & C 722;

When the Plaintiff was going in a street, a barrel of flour
from the upper window of the Defendants fell upon the Plaintiff
and he was injured. The Plaintiff could not give any evidence to
show how it fell. However, the Defendants were held liable.
Principle Involved
The Principle applied in the instant case was, "where an object
under the exclusive management/control of the Defendant or his servants,
causes harm/injury to the Plaintiff. which in the ordinary course of
things, would not happen, if those, who have the management use proper
care, a presumption arises, in the absence of explanation by the
Defendant, that the accident was due to negligence”.

– 12 –

Judgment / Decision
The House of Lords, applying the above Principle, held the
Defendant liable irrespective of proof of negligence by the Plaintiff as the
Plaintiff would not have been injured but the negligence on the part of the
Defendant.

Municipal Corporation of Delhi Vs Subhagwanti

(AIR 1966 SC 1750);
 The Clock Tower situated in Chandni Chowk Centre,
Delhi was under the exclusive control of the Municipal
Corporation. It was 80 years old. The Municipal Corporation,
Delhi failed to demolish it though its normal life time was 40 to 45
years. It was collapsed, resulting in the death of a number of
persons. The Supreme Court held the defendants liable for
negligence on the ground that the Clock Tower tells its own story.

Essential Conditions
For application of the maxim 'Res Ipsa Loquitur’, the
Plaintiff has to prove –
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, and
3) There must be no evidence of the actual cause of the
accident.
Defences for Negligence
Following defences are available to the Defendant in an action for
negligence –
1) Act of God.
2) Inevitable Accident; and
3) Contributory Negligence.
– 13 –

3) Contributory Negligence
Earlier Contributory Negligence was to be a complete
defence. But it is more a law at present.
Meaning
 The expression 'Contributory Negligence' literally means
an act of negligence in which both the Defendant (wrong doer) and
the Plaintiff (injured party) are contributors. That is both of them
have equally or proportionately contributed for the commission of a
negligent act.
For Ex. A pedestrian suddenly crosses the road in spite of
observing an approaching lorry at a high speed and accident
occurs, both the lorry driver and the pedestrian have contributed
for the commission of the accident.
Definition
The Doctrine of 'Contributory Negligence' may be defined
as, “negligence in not avoiding the consequences arising from the
negligence of some other person, when means and opportunity are
afforded to do so".
The Rule of Contributory Negligence was laid down by
Lord Ellenborough C.J. in the case of –
Butterfield Vs Forester (1809) 11 East 60;
Facts of the Case
The Defendant wrongfully obstructed a highway by
erecting a pole across it. The Plaintiff was riding violently at 80'
clock in the evening collided with the pole and was injured. The
obstruction (Pole) was visible from a distance of 100 yards. In an
action by Plaintiff, the Defendant was held not liable on the ground
– 14 –

of absence of care by the plaintiff. If the plaintiff had been

reasonably careful, he could have observed the pole and avoided
the accident.
Principle Involved
 The Principle applied in the instant case, was, "One person
being in fault will not dispense with another's using ordinary care
for himself. Two things must occur to support this action, an
obstruction in the road by the fault of the defendant, and no want
of ordinary care to avoid it on the part of the plaintiff”.
Judgment
The Court of Appeal through Lord. Ellenborough, C.J.
held the Defendant not liable since the Plaintiff himself was
instrumental for the accident.
8) Plaintiff knew that driver was drunk. Still he choose to
travel in the car. An accident took place in which the driver was
killed. Plaintiff suffered serious injuries. Driver himself was the
owner of the car. Can the Plaintiff clam compensation from the
heirs of the driver? (Jun
2022)

Dann Vs Hamilton, (1939) 1 KB 509;

Facts of the Case
The Plaintiff, knowing that the Defendant was drunk
and that a road traffic accident was highly likely as a result,
chose to travel by the car despite being under no compulsion
to do that driven either by necessity or something else. An
accident occurred on the road, which was caused by the
driver’s drunkenness and the Plaintiff was injured. She sued
the driver’s personal representative – the Defendant, for
– 15 –

damages. In the action against him, the personal

representative raised the defence of volenti non fit injuria.
Issues
 Can the defence of volenti non fit injuria be used in
order to preclude from remedy a person who has voluntarily
accepted the risk which arises from a driver who is driving a
car under the influence of alcohol?
Decision / Outcome
The decision was in favour of the plaintiff.
Principle Involved
(1) Applying Smith Vs Baker & Sons, (1891)] AC
325, except in extreme cases, the defence of volenti non fit
injuria does not apply to the tort of negligence so as to
preclude from remedy a person who has knowingly or
voluntarily accepted the risk which arises from a driver who
is driving a car under the influence of alcohol.
(2) The present case is not one of the extreme cases.
(3) The doctrine of volenti non fit injuria applies to
negligence only in cases where the Plaintiff by his words or
conduct has impliedly agreed to absolve the Defendant from
liability.

– 16 –

The above Rule of Contributory Negligence was subject to

criticism, it was applied with modifications in the subsequent cases
as stated below:
Constructive Last Opportunity Rule
In Contributory Negligence, the tort / accident could be
avoided if one of the two (the injured and wrongdoer) was cautious.
In the example of road crossing, the first opportunity to avoid the
accident lies on the road crosser, (as he could avoid the accident by
abstaining / stopping from crossing the road). The second / last
opportunity lies in the driver of the vehicle as he could avoid the
accident by applying the brakes promptly.
Thus, according to the Last Opportunity Rule –
The driver of the vehicle is to be held liable. Leading case on
this point is –
Davies Vs Mann (1882);
The Plaintiff left his ass with its legs tied in a narrow
highway. The Defendant's wagon driven by horses violently
crashed into the ass and the ass was killed. The Defendant who had
the last opportunity to avoid the accident was held liable.

The Rule of Last Opportunity also was subject to criticism

on the ground that, this rule makes one party wholly liable and fully
exempts the other from liability though both the parties are
negligent. To remove this hardship, the "Doctrine of
Apportionment" has been incorporated.

– 17 –

Doctrine of Apportionment of Damages

According to this doctrine, the liability is apportioned or
distributed between the Plaintiff and the Defendant, basing on their
respective shares in the commission of the tort. In other words, this
doctrine reduces compensation to the injured and reduces liability to
the wrongdoer.
According to Sec 1(i) of the Law Reform (Contributory
Negligence) Act, 1945, the compensation is reduced to such extent
as the Court thinks just and equitable having regard to the claimant's
share in the responsibility for the damage.
Lang Vs London Transport Executive (1959);
In this case, both bus driver and motor cyclist were
responsible for the accident. The motor cyclist was found more
negligent and the Court apportioned the blame in proportion of two
thirds and one third.
Smt. Vidya Devi Vs M.P.S.R.T.C. (1975);
The Plaintiff's husband died in an accident with the bus
owned by the Defendant’s corporation. The Madhya Pradesh High
Court fixed compensation of Rs 32,400/-. But it reduced the same
to Rs 10,000/- attributing two third blame on the deceased.

If the Injured/Deceased is 100% negligent, there is no

liability as laid down in the case of –
Oriental Fire & General Insurance Co. Vs Manjit Kaur (1981);
A Scooterist rashly crashed head-on into a running car on
left side of the road, and died. It was found that the deceased was
solely (100%) responsible and the claim for compensation was
dismissed.
– 18 –

NUISANCE

1) Write short note on “Public Nuisance”. (Jun 2022)

2) Discuss the essentials requirements for “Nuisance”.
(Dec 2021)
 3) What is Nuisance? Distinguish between public and private
nuisance. (Jun 2019)
4) The Plaintiff resided in a house next to a Roman Catholic
Chapel of which the Defendant was the priest and the
chapel bell was ringing very loud of all hours of the day
and night. Decide.
(Jun 2019)

Meaning & Definition

The word “nuisance” derived from the French word 'noire
and Latin word "nocere” which means "to do hurt or to annoy". It is
an act or omission, interfering with the right of together to enjoy
some property, causing damage or physical discomfort.
E.g.- Digging a trench on highway, listening to radio in loud
noise causing discomfort to neighbours
It is very difficult to define ‘nuisance' accurately. However,
the prominent definitions are given below –
According to Prof. Winfield, a nuisance may be described as
"unlawful interference with a person's use or enjoyment of
land or some right over, or in connection with it”.
According to Salmond, “the wrong of nuisance consists in
causing or allowing without lawful justification, the
escape of any deleterious thing from his land or from elsewhere
into land in possession of Plaintiff”.

– 19 –

Kinds of Nuisance
1) Public or General or Common Nuisance, and
2) Private Nuisance or Tort of Nuisance.
1) Public Nuisance
It is an act or omission causing injury or damage or
annoyance to the public at large and people in general. Public
nuisance is both a tort (civil wrong) and crime (public wrong or an
offence).
Sec 268 of the Indian Penal Code, 1860, defines Public
Nuisance as "an act or omission, which causes any common injury,
danger or annoyance to the public or to the people in general, who
dwell or occupy property in the vicinity, or which must necessarily
cause injury, obstruction, danger or annoyance to persons who may
have occasion to use any public right".
Secs 269 to 290 of IPC, 1860, provides punishment for public
nuisance.
Underlying Principle
The underlying principle of an action for nuisance is based
on the Latin maxim "Sic utere tuo ut alienu for nuiedas”, which
means "everyone must so use his own not to damage another".
Who can sue for Public Nuisance?
Public Nuisance is crime under Sec 268 IPC, 1860, and
every affected person cannot sue. However, the following persons
can sue –
1) Attorney General in England.
2) Advocate General in Presidency towns and Collectors in the places other
than presidency towns.
3) An individual also can sue, provided he suffers special damage; and
4) Two or more persons can sue without proof of special damage by
obtaining a consent in writing from the Advocate General
– 20 –

Relevant Case Law –

 Dymond Vs Pearce (1972) 2 W.L.R 633;
It was held in this case that leaving lorry on the highway
for a considerable period was public nuisance.
Seltau Vs De Held (1851) 2 Sim.N.S. 133;
The Plaintiff was residing beside Roman Catholic Chapel.
The chapel bell was being rung day and night. The Defendant was
held liable for causing damage to the Plaintiff in particular.

2) Private Nuisance
If the nuisance (unauthorised user of one's own property)
uses injury or damage to an individual or group of individuals, it
called 'Private Nuisance'.
Definition
According to Underhill, “a private nuisance is some
unauthorised user of a man's own property causing
damage the property of another or some unauthorised
interference with property or proprietary rights of another,
causing damage, but t amounting to trespass”.
Elements of Private Nuisance
To constitute Private Nuisance, the following elements are to be
satisfied –
1) Unlawful or Unreasonable interference, and
2) Damage

1) Unlawful or Unreasonable interferences

The Plaintiff must establish that there is a substantial
interference with his right to use and enjoyment of land or property.

– 21 –
 Hollywood Silver Fox Farm Ltd. Vs Emmett (1936) 2 KB 468;
In this case, the Plaintiff set up a farm for breeding foxes
and erected a sign board saying "Hollywood Silver Fox Farm."
His neighbour (Defendant) wanted to develop a housing estate on
the land and requested the plaintiff to remove the board as it would
deter his customers. But the Plaintiff refused to remove the board.
The Defendant warned the Plaintiff to shoot along the boundary if
the board is not removed. The defendant did accordingly and
caused damage to 'Plaintiff's animals, which are extremely nervous
and do not breed at loud noise and may kill the young ones. In an
action against the Defendant, the Plaintiff was entitled to get
injunction and damages on the ground that "no person can create
noise on his own land causing annoyance to others”.
2) Damage
In an action for nuisance, the Plaintiff has to prove some
actual damage, he suffered.
Dr Ram Baj Singh Vs Babulal, AIR 1982 All 285;
In this case, the dust and fumes from the Defendant's brick
grinding machine caused inconvenience to his neighbour i.e. the
Plaintiff, who was a medical practitioner. In an action against the
Defendant, permanent injunction was granted.
Defences
Following are the well-recognised defences against an action
for nuisance –
1) Prescription, 2) Grant, and 3) Statutory Authority

– 22 –

1) Prescription
 If a person continues an activity on the land of another for a period
of more than twenty years he acquires a legal right by prescription and is
not subject to the liability for nuisance. Prescription i.e. long and
continuous use legalises an act, which would constitute a nuisance. The
period of 20 years is to be counted from the day when the Plaintiff comes
to know the existence of nuisance.
Sturges Vs Bridman, (1879);
In this case the Defendant had been using certain
machinery for his business. The Plaintiff felt inconvenience due to
the noise of the machinery and sued the Defendant for nuisance.
The Defendant was held liable on the ground that the period of
prescription would be computed from the date, when the Plaintiff
comes to know the existence of the nuisance.
2) Grant
Grant is a good defence to an action for that the said nuisance is
under the terms of a grant.
3) Statutory Authority
A suit for nuisance is not maintainable, if the Defendant's act is
authorised by law or statute.
5) The Defendant, vegetable vendor sold only one kg potatoes per
ration book, when there was a scarcity of potatoes. Queues of customers
at the Defendants shop extended in the highway in front of neighbouring
shop. Decide. (Nov 2021)

Dyer Vs Mansfield (1946);

The Defendant was a license vendor of fruits and vegetables.
During the scarcity of potatoes was issuing only 1/2 of potatoes per ration
book. Queues of customers extended in the highway in front of
neighbouring shops. In an action by the Plaintiffs (neighbouring shop
keepers) it was held not actionable.
– 23 –

Attractive Nuisance
 Attractive Nuisance is a dangerous condition on a
landowner's property that may particularly attract children onto the
land and pose a risk to their safety. In tort law, the Attractive-
Nuisance Doctrine imposes a duty on property owners to treat
trespassing children the same as an invitee, and as a result, must
exercise reasonable care to eliminate potential dangers or provide
adequate warning.
As the Supreme Court of Texas in –
Muchhala Vs United States, 532 F. Supp. 1215;
The Court has stated, the rationale behind the doctrine is
that a device of unusually attractive nature may be "especially
alluring to children of tender years" thereby impliedly inviting
children to come upon the premise, and by such invitation, the
children should be considered invitees instead of trespassers.

5) A child of seven years ate the attractive berries in the

municipal park. The berries were poisonous. The child died. Can
the municipality be made liable?
(Jun 2019)

Glasgow Corporation Vs Taylor, (1922) 1 AC 44;

Facts of the Case
The father of a seven-year-old boy sued the Glasgow
Corporation for damages following the death of his son who died
as a result of eating berries from a poisonous plant that was
growing in the Botanic Gardens in Glasgow. The gardens were
open to the public and managed by the Defendant. The father
argued that the Defendants allowed children to pass through their
grounds frequently yet did not take any action to warn or alleviate
the danger
– 24 –
 caused by the poisonous plant to children. The plant was enclosed
by a wooden fence which was open to the public and easily
accessed by children.
Issues
The question for the Court was whether this raised any
grounds of appeal for there to be a trial against the Defendants for
their liability. It was important for the court to consider in this case
whether the Defendant was negligent in the death of the claimant. It
was particularly important to understand the steps that the Defendant
had taken to prevent the danger caused by the fact that the poisonous
berries in question would be particularly attractive to young children.
Decision / Outcome
The Court held that the Glasgow Corporation was liable in
this instance. They had permitted children to go on to the land and it is
understandable that the berries would have appealed to visiting
children, thus representing a danger. The Defendants were aware of
this danger caused by the poisonous berries and did nothing to prevent
the damage. On this basis, the action was required to proceed to trial.

6) The defendants carried on the business of bone manure

manufacture. For that purpose they had heap of bones in their
premises which caused large number of rats assembled there. They
made their way to plaintiffs land and ate his corn causing loss to
him. Can he claim compensation? (Dec 2021)

The Plaintiff can claim compensation for the loss caused by the
rats eating his corn. In this case, the Defendants were engaged in the
business of bone manure manufacture, which involved having a heap of
bones on their premises. This heap of bones attracted a large
– 25 –
number of rats, which then made their way to the Plaintiff's land and ate his
corn, resulting in a loss for the Plaintiff.
The Defendants can be held liable for the damage caused by the
rats because they created a situation that attracted the rats and allowed
them to cause harm to the Plaintiff's property. This is known as the
principle of "Attractive Nuisance," where a person can be held
responsible for harm caused by a dangerous condition on their property
that attracts others, especially children or animals.
Stearn Vs Prentice Brothers Ltd., (1919) 1 KB 394;
The Defendants carried on the business of bone manure
manufactures on premises near the Plaintiffs farm. For the purpose
their business that had on their premises a heap of bones, which
caused large number of rats assemble there, rats made their way
from Defendants premises on to the Plaintiffs land and ate his corn,
causing substantial loss, in respect of which the Plaintiff claimed
damages from the Defendants. It was held that no cause of action
was established against the Defendants.
Distinction between Public Nuisance and Private Nuisance
Public Nuisance Private Nuisance
1 It is a crime and enshrined in It is a tort
Sec 268 IPC, 1860
2 An individual can sue only on The injured party can sue without
proof of special damages. proof of special damage.
3 It is an offence against public in
It is an unlawful interference with
general one's right to enjoy his land
property.
4 Both Civil and Criminal actions Only civil action can be instituted
can be instituted for public for private nuisance.
nuisance.
– 26 –
 REMOTENESS OF DAMAGE
1) Write short on Remoteness of Damage. (Jun 2019)
2) “Injure non remota causa sed proxima spectatur”. Explain
the maxim with the help of leading cases. (Dec
2022)
3) Write an elaborate statement on the concept of “remoteness
of damages” with cases. (Dec
2021)
4) The Defendants chartered the Plaintiff’s ship, the
“Polemia” to carry a cargo of Benzene and Petrol. Some of
the petrol cases leaked and there was petrol vapour in the
hold. While shifting some cargo at a port, due to negligence
of the employees, a plank fell into the hold causing a spark
which resulted in fire and the ship was destroyed. Discuss
the liability of the defendants.
(Dec 2022)
5) Discuss the principle of remoteness of damage with special
reference to the cases of Re Polemia and Wagon Mound.
(Jun
2022)
6) Mr Ramesh had placed a cup-board on the window while
his house was being white washed. Unfortunately, while
white washing the painter slipped and trying to save himself
he touched the cup-board which fell down outside and
injured Mr Kukarni, a passer-by. Is Mr Ramesh liable for
Mr Kulakarni’s damage?
(Dec 2022)

Introduction
When a tort is committed, the injury may be proximate or too
remote. Law provides remedy to injured, if the injury is proximate
and not for the injury which is too remote.
 For Ex. A beats B slightly with a hand stick. If B is slightly
injured, the injury is proximate, for which A is liable. Suppose B dies, the
injury is too remote for which A cannot be made liable.

– 27 –

Underlying Principle
The Doctrine of "Remoteness of Damage" is enshrined in the
Latin maxim "Injure non remota causa sed proxima spectatur", which
means in law, the immediate, not the remote, cause of any event is to be
considered. This doctrine is also known as 'the Doctrine of Natural and
Probable Consequence”.

Test of Remoteness
To determine whether the injury is proximate or too remote,
the Court adopts the following two tests –

1) Test of Foreseeability
According to this test, if the Defendant's wrongful act results
in such consequences, which a reasonable or prudent man could
foresee, they are regarded as proximate and then the Defendant is
held liable. According to the test of foreseeability, a reasonable or
prudent man can foresee / except the consequences of an act. E.g.
The extent of injury, when beaten with a stick and with an iron rod
(slight injury-serious injury).

2) The Test of Directness

According to this test, the Defendant is held liable for all the
consequences as a result of the tort committed by him. It is immaterial
whether a reasonable or prudent man could have foreseen such
consequences or not.
 – 28 –

The Test of Directness was adopted by the Court of Appeal in the

case of –
In Re Polemis and Furness, Withy & Co. (1921) 3 K.B;
Facts of the Case
The Defendant chartered the Plaintiff, ship for loading fuel
oil. Due to normal leakage, there was a petrol vapour in the hold.
An iron plank fell down into the hold due to the negligence of the
Defendant's servant. As a result, there was a spark resulting in
ignition and the ship was completely destroyed. Plaintiff sued the
Defendant for damages.
In this case, as a reasonable man, one would foresee
certain evil consequences at the falling of an iron plank and not the
destruction of the ship. But the Court followed the test of
directness and directed the Defendant to pay damages of £
1,96,165 (equivalent of twenty months hire) to the Plaintiff.
Principle Involved
The principle applied in the instant case was, "once the tortious
act is established, the defendant is to be liable for all the damage, which
is in fact directly traceable to the negligent act, and not due to
independent causes having no connection with the negligent act. The
defendant's liability extends to all the damage directly traceable to the
negligent act”.
Judgment / Decision
The House of Lords, applying the above principle, opined that
the test of foreseeability followed till 1921 is no more a law and held the
defendant liable adopting the principle of directness.
 – 29 –

Foreseeability Test Restored

The test of directness adopted in Re Polemis case was
followed for nearly four decades and again the test of foreseeability
had been readopted/restored in 1961 by the Judicial Committee of
Privy Council in –
Overseas Tankship (UK) Ltd. Vs Morts Dock & Engg. Ltd.,
(1961) A.C. 388;
(also known as Wagon Mound Case No. 1)
Facts of the Case
The Appellant (Overseas Tankship (UK) Ltd's vessel,
Wagon Mound was taking fuel oil at Sydney Port. The
Respondents, (Morts Dock & Engg. Co. Ltd.) owned a wharf for
undertaking ship repairs at a distance of 600 feet. Owing to the
negligence of Defendant's (Appellant's) servant, a large quantity of
fuel oil was split on the water, which was spread over the water
and reached the Respondent's (Plaintiffs) wharf. 60 hours later,
when the welding operations were undertaken in Respondent's
wharf molten metal fell on floating cotton waste. As a result of
that, fire broke out causing extensive damage to the respondent's
wharf.
Observations
It was found that the Manager of the Respondent's wharf
had taken necessary precautions and instructed his servants to take
up welding operations. Further, he was under the belief that fuel oil
 in the open would not be inflammable, hence and could not foresee
the occurrence of fire.
Principle Involved
The principle involved in Wagon Mound Case No. I was
that "After an event, even a fool is wise. But it is not the hindsight
of a fool, it is the foresight of a reasonable man, which alone can
– 30 –

determine responsibility”. The Polemis Rule by substituting

'Direct' Reasonably Foreseeable' case hence leads to a conclusion
equally illogical and unjust.
Judgment / Decision
The Trial Court followed the rule in Re Polemis and held
the Defendants (Appellants) liable. This decision was affirmed by
the Supreme Court of South Wales. On Appeal, the Judicial
Committee of Privy Council, applying the Test of Foreseeability
reversed the above decision and held that O.T. (UK) Ltd.
(Appellants) were not liable. The Privy Council was of the opinion
that the Test of Directness applied in Re Polemis' case was no
more a good law.

After the Decision of Privy Council in Wagon Mound Case

No. 1, the Test of Foreseeability was applied by Courts with
necessary modifications in the later cases.
Overseas Tankship (UK) Ltd. Vs the Miller Steamship Co.
Ltd. (1966) 2 All. Er 709;
(Also known as Wagon Mound Case No. 2)
Facts of this Case
The same as in Wagon Mound No. 1, in Wagon Mound
No. 1, Plaintiff and Respondents were the owners of the Wharf.
 Whereas in Wagon Mound No. 2, the Plaintiffs and Appellants
were the owners of two ships.
In the instant case, Plaintiff's two ships namely Corrimal
and Audray D, were severely damaged by the same fire in Wagon
Mound No. 1.

– 31 –

In Wagon Mound No. 1 the Defendants and Appellants

were held not liable, whereas in Wagon Mound No. 2 the
Defendants, and Respondents i.e. the owners of the Wharf were
held liable. The Judicial Committee of Privy Council through
Walsh J. Found –
1) that the officers of wagon mound would have regarded the
furnace oil as very difficult to ignite on water-not that they
would have regarded this as impossible.
2) that their experience would probably have been that this had
very rarely happened-not that they would never had heard of a
case where it had happened; and
3) that they would have regarded it as a possibility but one which
would become an actuality only in very exceptional
circumstances.

Legal Remedies – Awards

1) Explain the various kinds of remedies available in tort.

(Dec
2019)
Meaning
The expression 'Remedy' is a form of relief to indemnify the
injury or damage sustained by the injured party. Where a tort is
committed, the injured or aggrieved party resorts to relief to make
good the loss or damage suffered by him. Such relief or redress, he
seeks through Court of law or otherwise is called 'Remedy'.
Kinds of Remedies
Remedies are broadly divided into two heads namely –
A) Judicial Remedies, and
B) Extra-Judicial Remedies.

– 32 –

Judicial Remedies are those, which the injured party gets

through Court of law by instituting an action against the wrong-doer
(tort- feasor). Whereas Extra-Judicial Remedies are those which
the injured party can get without filing a suit in Court of law.
A) Judicial Remedies
The Judicial Remedies may be sub-divided as follows –
1) Damages –
(i) Contemptuous
(ii) Nominal
(iii) Exemplary
(iv) Ordinary, real or substantial
(v) General and special
(vi) Liquidated and unliquidated.

2) Injunction –
(i) Interim or Temporary
(ii) Perpetual or permanent
(iii) Mandatory, and
 (iv) Prohibitory.
3) Specific Restitution of Property

B) Extra-Judicial Remedies
Extra-Judicial Remedies may be sub-divided under the
following heads –
1) Expulsion of Trespasser.
2) Re-Entry on Land.
– 33 –

3) Re-caption of goods.
4) Abatement of nuisance.
5) Distress damage feasant.

1) DAMAGES
Damages are the pecuniary remedy in an action for tort. It
means the payment of compensation to the injured by the wrong-
doer. It is very important to note that the word 'damage' differs from
the word 'Damages'. The former is the consequence of a tort, while
the latter is the compensation for a tort. Damage is an injury suffered
by the Plaintiff. Whereas 'damages' means compensation which the
injured is entitled to get.
Following are the different kinds of damages –
(i) Contemptuous Damages: - Contemptuous damages are awarded
where there was no need on the part of the plaintiff to bring an action
against the defendant. In such cases, the Court awards very low
amount.
(ii) Nominal Damages: -- Nominal damages are awarded by the
Court where the plaintiff's legal right is infringed, without any loss
or damage. The amount of nominal damages is very low. E.g. Ashby
Vs White.

(iii) Exemplary Damages: - Exemplary damages in form of heavy

compensation are awarded in cases where the injured party has
suffered great injury under aggravating circumstances. The amount
is

– 34 –

in excess of the loss suffered by the plaintiff with a view to punish

the defendant so as to prevent him from committing the similar
wrong in future. Exemplary damages are also known as
'Compensatory or punitive or vindictive or retributive damages”.
E.g. Rudul Shah Vs State of Bihar, Bhim Singh Vs State of J & K.

(iv) Ordinary, Real or Substantial Damages: - Ordinary, real or

substantial damages are awarded to the plaintiff for the injury
actually suffered by him. Such damages are awarded in majority of
the cases.

(v) General and Special Damages: -- Sometimes a tort committed

by the defendant may result in damage to the people in general and
to a person in particular. The former is called 'General Damage'
and for which general damages are awarded. While the latter is
called 'special damage' and for which special damages are awarded.
For instance, X dug a ditch in front of his house on the highway. It
causes inconvenience to all the road users in general (general
damage). If a motor cyclist falls in the ditch and receives serious
injuries, it amounts to special damage to the motor cyclist.

(vi) Liquidated and Unliquidated Damages: -- The main remedy in an

action for tortious liability is for unliquidated damages. Unliquidated
damages are determined (fixed) by the court by exercising its discretionary
power. While the liquidated damages are already determined irrespective
of Court's discretion. Liquidated damages are claimed in an action for
breach of contract, breach of trust, breach of quasi contractual obligation
etc.

– 35 –

2) INJUNCTION
An Injunction is an order of the Court of Justice directing the
defendant to do some positive act or restraining the commission or
continuance of some prohibitory act causing injury to the Plaintiff.
According to Pollock and Mulla, "An injunction is a specific
order of the Court forbidding the commencement of a
wrong threatened or the continuation of a wrongful cause of
action already begun or in some cases commanding restitution of
the former state of things”.
Injunction may be categorised under the following heads:
(i) Interim or Temporary Injunction:-- It is issued provisionally
before the final hearing to prevent the defendant from commission or
continuance of an alleged injury to the plaintiff.
(ii) Perpetual or Permanent Injunction:- It is issued after the final
hearing and determination of the question in issue between the
parties perpetual injunction is granted when the suit is decreed.
(iii) Mandatory Injunction:- It is an order of the Court directing the
defendant to do some positive act. Normally it is granted only after
hearing upon merit of the suit. For instance, X constructed a wall on
his land. It causes obstruction to Z's (his neighbour) right of light. If
the Court directs X to demolish the wall it is called Mandatory
injunction.
(iv) Prohibitory or Restrictive Injunction:- It is an order of the Court
restraining the defendant from committing or repeating an injurious
act which interferes with plaintiff's legal right.

– 36 –

3) SPECIFIC RESTITUTION OF PROPERTY

It is granted, where the plaintiff is wrongfully dispossessed of
his immovable or movable property. It means restoration of property
(immovable or movable) dispossessed by the plaintiff from the
defendant.

B) Extra Judicial Remedies

Extra-Judicial Remedies are also known as "Self-help", which the
injured can resort to without waiting for a relief through Court of law.
1) Expulsion of Trespasser:- Trespasser is one, who has unlawfully
entered upon the land of another. The person entitled to immediate
possession of that land can expel the trespasser by using reasonable
force.
2) Re-entry on Land:- A person who has been wrongfully
dispossessed of his land can re-enter it without use of force or
violence.
3) Re-caption of Goods: The person, who has been dispossessed of
his goods or chattel unlawfully (by another), can take them back by
using reasonable force if necessary. He is not subject to the tort of
trespass if he enters into another's house for the purpose.
4) Abatement of Nuisance:- It means removal of nuisance caused by
the defendant. The injured party under certain circumstances and
subject to certain limitations, has a right to remove the nuisance.
E.g. X placed some rubbish in front of his land causing nuisance to
his neighbour Y. Y can abate the nuisance by removing it.
5) Distress Damage Feasant:- The term 'distress' means a right to
detain, 'Feasant' means an object which has done a wrong,
'damage' means loss caused to the owner or the occupier. If a
person's cattle (beasts) enters upon the land of another without
licence i.e. without permission and spoils com or grass or leaves of

– 37 –

the plants, the owner or occupier of that land is entitled to take

possession of the cattle and retain them until and unless the loss
sustained by him is fully indemnified by the owner of the cattle.
However the detainer of the cattle must supply the detained
animals with necessary food and water

Absolute and Strict Liability

1) Explain the concept on strict liability and state the

exceptions. (Dec 2022)
2) Write a note on “Rylands Vs Fletcher” (Dec 2021)
 3) Discuss the rule laid down in Rylands Vs Fletcher case
with exceptions. (Jun
2019)

Introduction
Generally, a person becomes liable for a tort committed by
him. Then, he is an independent tort-feasor and the liability is
'Independent Liability’. When a person joins other or others in
committing tort with common intention, the liability is 'Joint
Liability'. When one person is made liable for the tort committed by
another, the liability is "Vicarious Liability’. Sometimes, liability in
tort arises subject to proof of negligence. If the liability is imposed
irrespective of negligence, much liability is called 'Strict Liability".
The strict liability without any defences (to the defendant) is called
'Absolute Liability'.

– 38 –

STRICT LIABILITY
Meaning
There are certain circumstances in which a person is made
liable without any fault or intention or negligence on his part. The
liability arises for breach of duty on his part, such liability is called
"Strict Liability".
Definition
The Doctrine of 'Strict Liability was coined / propounded
for the First time by Blackburn J. in the case of Rylands Vs
Fletcher and hence, it is also known as "The Rule in Rylands Vs
Fletcher". The Liability is strict in the sense, the Defendant is liable
irrespective of negligence on his part. (In certain torts, the Defendant
is liable if negligence is proved on his part. But in strict Liability, the
Defendant liable even though negligence is not proved on his part).
Strict Liability may be defined as “a duty which renders a man
liable without any fault of his and irrespective of any
consideration intention or negligence on his put”.

Rylands Vs Fletcher, (1868) L.R. 3 H.L. 330;

Facts of the Case
The Defendant Rylands employed an independent
contractor (qualified engineer) for construction of a reservoir on
his land for supply of water to his mill. While constructing the
reservoir, the workers found some old shafts and passages beneath
the reservoir. They filled them (shafts and passages) with mud and
completed the work negligently. When the reservoir got filled with
water, it burst through the shafts and flooded the Plaintiff
Fletcher's
Coal Mines on the adjoining land. In an action by Plaintiff, the
Defendant was held liable on the ground of 'Strict Liability’.
– 39 –

Issues/Questions Involved
The questions involved in the instant case are –
1 Whether there is a negligence on the part of the Plaintiff?
2 Where an employer employs an Independent Contractor,
can the employer be held liable?
3 Whether the Defendant can be held liable though there is
no negligence on his part?
 With regard to the First question, there is no negligence on
the part of the Defendant since he employed a qualified engineer as
an Independent Contractor for construction of the reservoir.
With regard to the Second question, where an employer
(Defendant) employs an Independent Contractor, and the
Independent Contractor engages some workers for the work, the
master and servant relationship exists between the Independent
Contractor and the Workers and hence the Independent Contractor
is to be liable for the tort committed by the workers and the
employer is not liable. However, Blackburn J. evolved the rule of
"Strict Liability” for the first time in this case and held the
employer (Defendant) liable.
With regard to the Third question, the Defendant is held
liable under Strict Liability irrespective of negligence on his part.
Rule of Strict Liability
According to this Rule, "any person who for his own
purposes, brings on his land and collects and keeps there anything,
likely to cause mischief if it escapes, must keep it at his peril, and
he is prima facie answerable for all the damage, which is the
natural consequence of its escape.

– 40 –

Underlying Principle
Blackburn J evolved the above n on the basis of the
underlying principle "Sic utere tuo ut alienum non laedas” which
means "everyone must so use his own not to damage another".
Judgment / Decision
 In the Trial Court i.e. the Court of Exchequer Chamber
through Blackburn J. held the Defendant liable irrespective of
negligence on his part, basing on the above underlying principle.
On appeal to the House of Lords, Lord Coirs L.C. affirmed
(upheld) the decision of Blackburn J., and added one more (third)
condition of Strict Liability, i.e. non-natural use.

Essential Elements
The Plaintiff, in an action for Strict Liability has to prove the
following conditions –
1) Dangerous thing:
2) Escape, and
3) Non-natural use.
1) Dangerous Thing
The Plaintiff has to establish that the thing collected and kept
on the Defendant's land is dangerous and is likely to do mischief if it
escapes. This rule is applicable to water, gas, fire, noxious fumes,
vibrations, poisonous vegetation etc.
2) Escape
The Plaintiff has to prove that he suffered injury as a
consequence of the escape of the thing from the Defendant's land. To
constitute escape, the thing must reach the area outside the
occupation
– 41 –

and control of the Defendant. Escape from one place to another place
within the Defendant's land is no escape and the action for strict
liability is not maintainable.
 Read Vs Lyons & Co. Ltd., (1947) AC 156 (HL);
The Plaintiff was employed in the Defendant's factory.
When she was performing her duties, a shell exploded in the
premises and she was injured. In an action against the Defendant,
the Defendant was held not liable on the ground that there was no
escape of the thing outside the premises of the Defendant to apply
the Rule in Rylands Vs Fletcher.

3) Non-Natural Use
To attract (to constitute) strict liability, the thing kept on
defendant's land must be for non-natural use. E.g.:- Storage of water
in house for domestic purpose is natural use. If it is stored on huge
quantity as in the case of Rylands Vs Fletcher, it is non-natural use.
Storage and supply of water for irrigation purposes
Now, the question is, whether the storage of water in huge
quantity in dams for irrigation purpose is natural use or non-natural
use? The Supreme Court through Hidayatullah C.J., in –
State of Punjab Vs M/s. Modern Cultivators, AIR 1965 SC
17;
It has been held, in the interest of the public that it is
natural use. If it is regarded as non-natural use it attracts strict
liability and no Government would come forward to construct the
irrigation dams.

– 42 –

DEFENCES
 As stated above, the liability evolved in Rylands Vs Fletcher
is Strict (not Absolute) and hence, the following defences are
available to the Defendant to get exemption from the liability.
a) Act of God or Vis Major.
b) Plaintiffs own Fault.
c) Malicious Act of Stranger / Third Party.
d) Common Benefit or the Consent of the Plaintiff, and
e) Statutory Authority.

a) Act of God (Vis Major)

According to Lord. Mansfield “Act of God” of means
"something in opposition to the act of man”. It is an act, which
cannot be foreseen by any amount of human ability and skill, and if
foreseen it cannot be prevented by any means of human care and
skill. E.g. Earthquake, storm, lightning, heavy rainfall, floods etc.
This defence was allowed in –
Nichols Vs Marsland, 1875 LR 10 Ex. 255;
Due to heavy rain, the overflow of water from the water
pools on the Defendant's land washed away the artificial bridges
on Plaintiff's land. In an action by Plaintiff, the Defendant was held
liable.

b) Plaintiff's Own Fault

If there is a fault on the part the plaintiff, the defendant is not
liable.
Ponting Vs Noakes (1894);
The Plaintiff's horse died a result of eating leaves of a
poisonous tree on Defendant's land. The Defendant was held not
liable for the default of Plaintiff on his part.

– 43 –
c) Malicious Act of Stranger / Third Party
The Defendant is not liable, if the injury caused to the
Plaintiff is due to the malicious act of a stranger i.e. a third party.
Box Vs Jubb (1879);
The reservoir of the Defendant overflow due to the
act of a stranger and caused damage to the Plaintiff. The
Defendant was held not liable.

d) Consent of the Plaintiff or Common Benefit

The rule does not apply if the Defendant keeps the thing on
his own land with the consent of the Plaintiff or for the common
benefit of the Plaintiff and the Defendant. E.g. Water Tank for the
common benefit of Plaintiff and Defendant.
Carstair Vs Taylor (1871);
There was an overhead tank for common benefit of
Plaintiff and Defendant. Owing to the overflow of the tank
the Plaintiff’s goods were damaged. In an action by Plaintiff,
the Defendant was held not liable.

e) Statutory Authority
It means power or authority given by the law or legislature to
do an act. If the defendant coly given fort in discharge of a duty
under statutory authority, he is not subject to liability in tort.

– 44 –
 ABSOLUTE LIABILITY
(The Rule in M.C. Mehta Vs Union of India)

The rule of 'Absolute Liability' is developed from the Rule

of 'Strict Liability' evolved by Blackbum J., in 1868 in the case of
Rylands Vs Fletcher. The liability of Defendant under Absolute
Liability is more when compared to the Strict Liability. Strict
Liability provides for certain defences to the Defendant to get
exemption from the liability. Whereas, the Absolute Liability
provides no defences and the Defendant has no chance to escape
from the liability.
Therefore –
Strict Liability irrespective of negligence with defences.
(Rylands Vs Fletcher).
Absolute Liability irrespective of negligence without
defences (M.C. Mehta Vs Union of India).
The Rule of Absolute Liability was evolved in 1987 by P.N.
Bhagwati C.J., Supreme Court in M.C. Mehta Vs Union of India.
There are two leading cases of poisonous gas disaster, leading to the
formulation of the principle of absolute liability. They are –
1) Union Carbide Corporation Vs Union of India, (1986) 2
Com.L.J. 169 (U.S.) (Popularly known as Bhopal Gas Leak Disaster
Case or Bhopal Gas Tragedy); and
2) M.C. Mehta and Another Vs Shri Ram Foods and
Fertilisers Industries and others, AIR 1987 SC 965; (Popularly
known as Oleum Gas Leak Case)
 – 45 –

Union Carbide Corporation Vs Union of India,

(1986) 2 Comp.L.J. 169 (US);
(Popularly known as Bhopal Gas Leak Disaster Case or
Bhopal Gas Tragedy)
Facts of the Case
On the mid-night of 2/3-12-1984, was a leakage of
poisonous gas (methyl isocynate) from Union Carbide Corporation
India Limited, located at Bhopal, Madhya Pradesh, which is a
subsidiary of Union Carbide Corporation, USA. This disaster, was
described as "World's worst industrial disaster" as it claimed the
lives of 2260 people and caused serious injuries with variety of
complications to about 6 Lakhs of people. The Government of
India
proclaimed an ordinance entitled "The Bhopal Gas Leak Disaster
(Processing of Claims) Act, 1985” and filed on behalf of the
victims, a suit in U.S. District Court, New York. Similarly, several
petitions were filed by the victims and the legal representatives of
the deceased. The U.S. Dist. Court (through the Judge John F.
Keenan) dismissed all the petitions on the ground "forum non
conveniens" i.e. the suits can be more conveniently tried in India,
and also directed U.C.C. to pay five million dollars to the victims
as an immediate relief. The Union of India preferred an appeal
before the United States of Appeals for the second circuit and the
same was dismissed.
Then, the Union of India filed a suit (Union Carbide
Corporation Vs Union of India (1991) 4 SCC 584) in the Dist.
Court of Bhopal (Madhya Pradesh, India), claiming 3.3 billion
U.S. Dollars i.e. Rs 3,900 Crores as compensation. The District
Court (headed by M.W. Deo) ordered U.C.C. to pay an interim
relief of 270 Million U.S. Dollars i.e. Rs 350 Crores to the victims.
The
– 46 –

U.C.C. filed a Civil Revision Petition before the High Court of

Madhya Pradesh, which reduced the amount from 350 Crores to
250 Crores The U.C.C. was reported to have decided to go on
Appeal against the interim relief and devising a new strategy of
outmanoeuvring the Indian Govt. by a direct settlement with the
Gas Victims. Against this move by the U.C.C. at the plea of the
Union of India, the District Sessions Court, Bhopal passed an
interim order directing U.C.C. not to make any compromise or
settlement with any individual until further orders. Later, both the
parties preferred appeals before the Supreme Court on different
issues.
Issues Involved
Several Municipal and International issues are involved in
Bhopal Gas Leak Disaster Case
1) One of such important issues is the liability of parent company
(U.C.C.) for the torts of its subsidiary company abroad
(U.C.I.L.). The U.C.C. has maintained consistently that it is
only morally but not legally liable. The parent company
(U.C.C.) evidently was trying to escape from the liability.
2) The other issues involved is - the responsibility of the home
state (U.S.A.) for the hazardous activities of U.C.C.'s
subsidiary abroad (U.C.I.L. in India).
3) Another issue is with regard to the responsibility of host state
(India) in enforcing safety standards for the protection of life
and environment and the extent of liability to the victims for
their rehabilitation in the event of accidents.
 – 47 –

Oleum Gas Leak

When the matter was pending before the Supreme Court,
another gas disaster took place from Shri Ram Foods and
Fertilizer Industries (belonging to Delhi Textile Mills Ltd.),
Delhi on 4th and 6th Dec 1985. One advocate died and several
others injured. M.C. Mehta, a leading Legal Practitioner, Supreme
Court filed a "Public Interest Litigation" Petition under Art 32 of
the Constitution. The Supreme Court through P.N. Bhagwati, C.J.
keeping in mind the one year back great gas disaster of Bhopal,
evolved a new Rule "Absolute Liability" in preference to 1868
rule of Strict Liability.
Decision
The Supreme Court (Five Bench) vide its order dated
14.02.1989 directed U.C.C. to pay 470 Million U.S. Dollars
(equivalent to Rs 750 Crores approximately) towards
compensation to the victims as the full and final settlement in
satisfaction of all the past, present and future claims and the same
was accepted by both the parties (i.e. U.C.C. and Union of India).
The entire amount had to be and was paid by 31 st Mar 1989. The
Court by exercising its Extraordinary Jurisdiction quashed all
proceedings civil, Criminal or Contempt of Court etc. against the
U.C.C. The Court also stressed the need to evolve a national
policy to protect national interests from such ultra-hazardous
pursuits of economic gains.
 – 48 –

The Rule of Absolute Liability

The Rule of "Absolute Liability”, which is a more stringent
rule of strict liability as laid down by the Supreme Court in –
M.C. Mehta & Anr Vs Shri Ram Foods & Fertilizer
Industries & others, AIR 1987 SC 965
(Popularly known as "Oleum Gas Leak Case").
Facts of the Case
Shri Ram Foods and Fertilizer Industries is a subsidiary of
Delhi Cloth Mills Ltd., located in a thickly populated area of Delhi.
On 04-12-1985, there was a leakage of Oleum Gas from the
Sulphuric Acid Plant resulting in the death of an Advocate in the
Thees Hazari Court and injuries to several others. On 06.12.1985
also, there was a minor leakage from the same plant. Against a
complaint under Sec 133 CrPC. the District Magistrate, Delhi
directed the Management of the Shri Ram Foods and Fertilizer
Industries to close down the unit and to show cause the reasons
within seven days vide order dated 06.12.1985.
The Petitioner, M.C. Mehta, an Advocate, Supreme Court
filed public interest litigation petition in the Supreme Court under
Art 32 of the Constitution. The Petitioner, in his petition requested
the Court to direct the Government to take necessary steps to avoid
such leakages from the industries engaged in dangerous and
hazardous manufacturing processes. He also remained the Court,
the one year old great gas disaster from U.C.I.L. Bhopal and
prayed the Court to direct the Management of Shri Ram Foods and
Fertilizers Industries and the Government to shift and relocate the
plant at a place far away from the city.

– 49 –

Issues and Principles laid down

The Supreme Court and the Lt. Governor, Delhi appointed
two committees separately to inspect the plant and submit the
reports on the following issues –
1) Whether the plant can be allowed to continue or not?
2) If not what measures are required to be taken to prevent the
leakages, explosions, air and water pollution?
3) To find out the number of safety devices existing in the plant
and others though necessary are not installed in the plant.

The two Committees inspected the plant and submitted the

reports with necessary recommendations. The Supreme Court,
basing on the reports, decided to permit Shri Ram Fertilizers to
restore its essential for the progress and economic development.
The Court laid down the following principles –
1) The Management, Shriram Foods was required to deposit in
the Court, Rs 20 Lakhs and security for payment of
compensposit to the victims. Further, the management was
required to furnish a bank guarantee for Rs 15 Lakhs, which
shall be encased by the Registrar of the Supreme Court wholly
or partly in the event of Gas Leakage if any in ensuing three
years.
2) The Management must comply with the recommendations of
the expert committees. An amount of Rs 30,000/- should be
deposited with the Court for travelling expenses of the expert
committee members.
 3) The Management of Shri Ram Foods and the Managing
Director of the Delhi Cloth Mills Ltd., should execute a written
undertaking to pay compensation to the victims as a
consequence of Gas Leakage or other event in future.

– 50 –

4) A green belt of 1 to 5 km width around such industries should

be provided.
5) The Court appreciated the Petitioner (M.C. Mehta) for filing
number of public interest litigation petition and this petition in
particular. The Court ordered the Shri Ram Foods to pay Rs
10,000/- towards costs.
6) The Court directed the Central Govt. to set up an
Environmental Court consisting of a Judge and two experts
(Ecological Sciences Research Experts) as members to assist
the judge in deciding the environmental cases. Pursuant upon
the recommendation, the Govt. of India passed the National
Environment Tribunal Act, 1995 to deal with the cases of
environmental pollution.

The Supreme Court through P.N. Bhagwati, C.J., opined

that the rule of strict liability evolved in 1868 does not suit to the
socio- economic conditions of the 20th century and keeping in mind
one year back the Bhopal Gas Disaster the “Absolute Liability",
which reads as follows –
"We are of the view that an enterprise, which is engaged in a
hazardous or inherently dangerous industry, which poses a potential
threat to the health and safety of the persons working in the factory
and residing in the surrounding areas owes an absolute and non-
delegable duty to the community to ensure that no harm results to
any one on account of hazardous or inherently dangerous activity in
which it is engaged must be conducted with the highest standards of
safety and if any harm is done on account of such activity, the
enterprise
– 51 –

must be absolutely liable to compensate for such harm and it should

be no answer to the enterprise to say that it had taken all reasonable
care and that the harm occurred without any negligence on its part".
The rule is not subject to any exceptions under the Rule in
Rylands Vs Fletcher. After formulating this rule, the Supreme Court
directed the petitioners to file actions in the appropriate Courts
within two months to claim compensation on behalf of the victims of
the gas leakage.