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Introduction-

Law is bundle of rules which regulates the external behavior of

individuals in society. Law of Torts is the branch of law controlling
the behavior of people in the society. It is a growing branch of law
and its main object is to define individual rights and duties in the
light of prevalent standards of reasonable conduct and public
convenience. It provides pecuniary remedy for violation against the
right of individuals. The entire Law of Torts is founded and
structured on the principle that, ‘no one has a right to injure another
intentionally or even innocently.

Meaning:-

The word ‘Tort’ is derived from latin term 'tortum' which means ‘to twist’
or a deviation from straight or right conduct and includes that conduct
which is not straight or lawful.

DEFINITIONS BY RENOWNED JURISTS

‘Tort’ is defined by various jurists as under:
“A tort is a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of a
contract, or the breach of a trust, or the breach of other merely equitable
obligation”.
– Salmond

-Distinction between 'Tort' and 'Crime'

Tort differs both in principle and procedure from a crime and there are
basic differences between a tort and a crime which are as follows,
First on the basis of nature of wrong,
Tort is a private wrong. Private wrong is the infringement of civil right of
an individual. It is comparatively less serious and labeled as civil wrong.
Whereas crime is a public wrong. Public wrong is a violation or breach of
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rights and duties which affect the community, as a whole. It is a more
serious wrong.
Second on the basis of nature of remedy,
The remedy in law of tort is damages where as the remedy in crime is
punishment
Third on the basis of parties to suits,
In case of tort the suit is filed by injured or aggrieved party where as In
case of crime the complaint is filed in the name of State.
Fourth on the basis of withdrawal of suits,
In case of tort the suit can be withdrawn at any time and compromise
can be done with wrongdoer where as In case of crime the complaint
cannot be withdrawn except in certain circumstances.
Fifth on the basis of codification,
There is no codification in Law of Torts where as The Criminal law is
codified.
Sixth on the basis of bar of limitation,
There is bar of limitation of prosecution in Law of torts where as There is
no bar of limitation of prosecution in crime.
Seventh on the basis of survival of action,
In case of death of tort-feaser his legal representative can be sued
except when the tort is defamation, personal injury not causing a death
where as In case of death of offender, the suit is put to an end.
Eighth on the basis of application of law,
There is no separate statute deals with tort. Tort is based on judicial
decisions where as the crimes are dealt in Indian Penal Code, 1860.

Ninth on the basis of intention,

In tort, Intention is important but not in all cases, for example, in cases of
negligence where as in crime, Intention is the crux of the offence Despite
of these differences, the injunction may be granted in tort as well as in
crime. There are various wrongs which fall under law of torts as well as
under criminal law, for example, Assault, Defamation, Negligence,
Nuisance and Conspiracy.

Distinction between Tort and Breach of Contract

First on the basis of fixation of duty

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In tort, the duty is fixed by the law itself where as In contract, the duty is
fixed by the party themselves.
Second on the basis of attribution of duty,
In tort, the duty is towards every person of the community or society
where as In contract, the duty is towards specific person or persons.
Third on the basis of violation of rights,
A tort is a violation of a right in rem (that is, a right vested in some
determinate person and available against the world at large) where as A
breach of contract is an infringement of a right in personam (that is, of a
right available only against some determinate person or party.
Fourth on the basis of need of privity,
In an action for tort, no Privity is needed or is required to be proved
where as In a breach of contract, Privity between the parties must be
proved.
Fifth on the basis of motive,
In tort, motive is often taken into account where as In breach of contract
motive is not relevant.
Sixth on the basis of damages,
In tort, measure of damages is different in different circumstances which
may be nominal or exemplary where as In Breach of contract, damages
are awarded in the form of compensation for pecuniary loss suffered.

Seventh on the basis of suit by third party,

A third party can sue for tort even though there was no contract between
the person causing injury and the person injured where as A third party
to a contract cannot sue for breach of contract except in some
exceptional cases.
Eighth on the basis of intention,
Intention is sometimes taken into consideration where as Intention, in
case of breach of contract, is of no relevance.
Ninth on the basis of concern,
Law of tort is concerned with losses where as Contract law is concerned
with promises.
Tenth on the basis of period of limitations,
Limitation begins to run from the date when damages occurs where as
Limitation commences when the breach of obligation takes place.
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Principles of Tort Liability

1) Damnum Sine Injuria

Damnum sine injuria is a Latin legal maxim that basically means damage
without injury. It means an actual loss which occurs without the
infringement of any legal rights. This is because the mere loss of money
or money’s worth does not amount to any tort. In order to constitute
some tort, a real violation of some rights must take place in the form of
legal damage.No liability can arise in such cases. When there is the
actual damage caused to the plaintiff without an infringement of his legal
right, no action lies against the defendant. In order to make someone
liable in tort, the plaintiff must prove that he has sustained legal injury.
Damage without injury is not actionable in the law of torts.

Chesmore V. Richards, The plaintiff, a mill owner was using water for
over 60 years from a stream which was chiefly supplied by the
percolating underground water. The defendants dug a well on their land
deep enough to stop the larger volume of water going to plaintiff's
stream. Held, that the plaintiff has no right of action since it was a case
of damnum sine injuria.

Gloucester Grammer School Case, Held. The defendant, a

schoolmaster, set up a rival school to that of the plaintiff. Because of the
competition, the plaintiff had to reduce their fees. Held, the plaintiff had
no remedy for the loss suffered by them
The court held that Gloucester Grammar School has no case against the
defendant as they have suffered damages but no legal right of the
petitioner was injured. And this is merely a case of business competition
between Gloucester Grammar school and the new school. Therefore the
act of opening up another school of similar fee structure or even a
discounted fee structure was not an actionable wrong nor an injury to
Gloucester Grammar school or his proprietor.

2) Injuria Sine Damno

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In contrast with damnum sine injuria, the principle of injuria sine damno
means an infringement of rights without actual losses. Since this leads to
infringement of rights, liability can arise even if no person suffers actual
or substantial losses. It implies an infringement of the legal rights of a
person without any actual loss. Loss in this sense could mean loss of
health, monetary loss, etc. Since there is an infringement of the legal
right of a person, the right to sue for a remedy is available against the
wrongdoer regardless of the fact whether any actual loss is sustained or
not.

For example, trespassing of property is a serious violation of a person’s

right to protect his property. In such cases, the trespasser is liable to pay
compensation even if he causes no real damage.

In the leading case of Ashby v White the defendant, a returning officer at

a voting booth refused to allow the plaintiff, a duly qualified voter from
voting. The candidate for whom the plaintiff was voting got elected and
therefore no loss was suffered by him. The court held that although the
plaintiff did not sustain any actual loss, but his legal right to vote was
violated for which he was granted a remedy.

3.) wrongful act.

The word "act" is used to include both positive and negative acts i.e.,
acts and omissions. Wrongful act is an act which is contrary to the
provisions of law and causes injury to the legal rights of another person
eg. act of trespass, tort of defamation, etc. There is a person who has a
legal duty to do some act and he fails to perform that duty. The wrongful
act or wrongful omission must be recognized by law. Therefore a mere
social or moral wrong is not enforceable.
To constitute a tort or civil injury, there must be :
a wrongful act committed by a person,
The wrongful act must give rise to legal damage or actual damages;
and
The wrongful act must be of such nature as to give rise o a legal
remedy in form of an action for damages.
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4) Legal Remedy
Ubi jus ibi remedium (Where there is a right there is a remedy)
Right without a remedy is of no use. Right is a person’s capacity to
compel another person to do or to abstain from doing an act, and
capacity to compel means legal capacity to compel. Unless there is
a legal remedy, there cannot be legal compulsion.

Therefore, a right without a remedy would be redundant.

Therefore, right and remedy are correlated. If there is no right there
will be no remedy. In this regard there are two types of rights.
1. Absolute rights: An absolute right is a right the violation of which
amounts to a wrong and gives rise to cause of action. There is no
further requirement of showing any loss or injury. The tort which is
based on the violation of an absolute right is actionable per se.
2. Conditional rights: A conditional right is a right the violation of
which by itself does not amount to a wrong so as to give rise to
cause of action. The plaintiff has to further show that he has
suffered loss due to the violation of that right. Loss is a condition
precedent for giving rise to cause of action.

Novus actus interveniens

Novus actus interveniens is a Latin phrase that, when translated,

amounts to ‘new intervening act.’ It is a principle of Tort law. Novus
actus interveniens, in relation to a tortious action for negligence,
can be defined as any intervening act that can separate or break off
the legal connection between a defendant’s conduct and the final
injury incurred by the plaintiff, thus preventing the defendant from
being held legally liable for the plaintiff’s harm. For an act to be
considered as Novus actus, it must be reasonably unpredictable. If
the second and subsequent act could be apprehended or stemmed
from the first act itself, then this principle will not be applicable, and
the legal burden will not be waived off the defendant. Attributed to
this principle is a general rule of measuring the remoteness of
damage. If any outside force (Act of God or intervention by a third
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party) or the plaintiff himself causes interventions subsequent
damage to the injury already caused, then it will amount to the
remoteness of damage.
Exceptions To The Rule Of Novus Actus Interveniens:

The exceptions to the rule of Novus actus interveniens are listed as

follows:

If the defendant has intentionally undertaken the intervening act in

question
If the intervening actor cannot be made fully responsible for the
outcome
If the intervening act was reasonably foreseeable
If the intervening acts in question are some involuntary action or a
bare reflex
Relevant Case Laws:
VOSBURG V PUTNEY, 1891 (Defendant made liable even when
the injury was not foreseeable.)
In this case, a boy kicked another in the classroom from across the
aisle. It turned out that the victim was suffering from an inflamed
microbiological infection, which caused him to lose all use of his leg.
Undoubtedly no one could have foreseen the severity of the
injuries. Despite this, the Wisconsin Supreme court determined that
the kicking was illegal because it breached the “order and decorum
of the classroom.” Hence, the perpetrator was held entirely
responsible for the injuries.

Volenti non fit injuria

In the law of torts, if any person commits any wrongful act which
causes injury to another person, he is held liable and has to pay
damages or provide some other remedy which the Court
determines, to the victim of such an act.
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But in some cases even if a person suffers some loss because of
the act of another person, he cannot claim damages from that
person because of the operation of defences of tort. One such
defence available to a defendant is the defence of volenti non fit
injuria in which the plaintiff is not entitled to damages because he
consents to the act which has caused injury to him.
In case a person gives his consent to doing of an act which leads to
him getting injured, then even if an injury is caused by the other
person, he cannot claim any damages from that person because
the act was one for which he voluntarily consented. The consent of
the plaintiff acts as a defence and this defence is called volenti non
fit injuria which means to a willing person no injury happens.

There are 2 essential elements in this defence:

The plaintiff has the knowledge of the risk
The plaintiff with the knowledge of risk has voluntarily agreed to
suffer the harm.
Thus, whenever the plaintiff is aware of the possibility of harm
which is likely to be caused by an act and when he still accepts to
do that act and therefore agrees to suffer the injury, a defendant is
relieved of his liability.

Consent of the plaintiff

The consent of the plaintiff is very important in the defence of

volenti non fit injuria because only when he voluntarily gives his
consent to an act, the defendant can take this defence.

In the case of Hall v. Brookland (1932) All E.R. Rep 208, the plaintiff
went to see a car race in which two cars collided with each other
and as a result of the collision, the plaintiff who was sitting as an
audience was also injured when one of the cars flew into the
audience. Here the defence of volenti non fit injuria was applied
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because the plaintiff had given his consent to such a risk by going
to the race.

Consent may be Express or Implied

In the cases of this defence, the consent of the defendant is not

required to be expressly given and even by his conduct, his consent
can be taken.

Illustration: C is a cricket player and due to a full toss ball he gets

hits by it on his shoulder. Here C cannot claim any damages
because C has consented to the risk by agreeing to play cricket.

Consent of the Plaintiff must be free

When a plaintiff gives his consent for an act such consent should be
free from any coercion, fraud or any other such means by which the
free consent can be affected.
In the case of Ravindra Padmanabhan (Dr.) vs Lakshmi Rajan And
Anr., the plaintiff had a tumour on her breasts and therefore she
went to the hospital to have it removed. While operating her the
doctor also removed the uterus even though it had nothing to do
with the tumour. Thus, the Court held the defendants liable and
thus, the defence of volenti non fit injuria was rejected.

In the case of Padmavati v. Dugganaika, the plaintiffs had asked for

a lift in the jeep of the defendants and while travelling in it one of the
screws of the wheel of the jeep fell out, as a result, the jeep crashed
and it caused the death of one of the plaintiffs. In the case, the
Court held that the defence of volenti non fit injuria will apply and
thus the defendants were not liable because by sitting in the jeep
the plaintiffs had assumed the risk of being injured in an accident.

Consent by fraud
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In cases of consent having been obtained by fraud, the defence of

volenti non fit injuria will not apply and the defendant will be held
liable for the wrong by him.

For e.g., in the case of R v. Williams (193) 1 KB 340, the defendant

was a singing coach and he had convinced a 16-year-old student to
have sexual intercourse with him by telling her that it will help her in
improving her voice and singing. The defendant was held liable by
the Court because the consent was obtained by fraud.

Volenti non fit injuria and Contributory negligence

Both contributory negligence and volenti non fit injuria are used as a
defence by the defendant to escape liability but they differ from each
other.

In contributory negligence, the plaintiff who has suffered an injury is also

at fault along with the defendant and therefore the quantum of damages
which he can be awarded is reduced in proportion to the degree of his
negligence in the act which caused him injury. Thus, both the parties are
at fault in such a case and therefore this is a partial defence available to
the defendant.

Illustration: A gets hit by a car while crossing a road, which was being
driven by B and he drove it rashly and over speed limit due to which A
sustained many injuries. But this accident happened because A decided
to cross the road even though the traffic signal was on and thus the
pedestrians could not cross it until the signal stopped for the vehicles.
Here both A and B are at fault and therefore even though B will be held
liable, the damages which he has to provide will be reduced because A
was also at fault and thus the defence of contributory negligence applies
here,

NEGLIGENCE
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Introduction:
In day to day usage Negligence denotes mere carelessness. In legal
sense it signifies failure to exercise the standard of care which the doer
as a reasonable man should, by law, have exercised in the
circumstances.
Generally speaking there is a legal duty to take care where it was or
should have been reasonably foreseeable that failure to do so was likely
to cause injury. Negligence is, accordingly, a mode in which many kinds
of harms may be caused, by not taking such adequate precautions as
should have been taken in the circumstances to avoid or prevent that
harm, as contrasted with causing such harm intentionally or deliberately.
A man may, accordingly, cause harm negligently though he was not
careless but tried to be careful, if the care taken was such as the court
deems inadequate in the circumstances.
Generally speaking one is responsible for the direct consequences of his
negligent acts where he is placed in such a position with regard to
another that it is obvious that if he does not use due care in his own
conduct he will cause injury to another.
Negligence takes innumerable forms, but the commonest forms are
negligence causing personal injuries or death, of which species are
employers’ liability to an employee, the liability of occupiers of land to
visitors thereon, the liability of suppliers to consumers, of persons doing
work to their clients, of persons handling vehicles to other road-users,
and so on. The categories of negligence are not closed and new
varieties such as negligence causing economic loss may be recognized.
Negligence has two meanings in law of torts:
1. Negligence as state of mind- Negligence is a mode of committing
certain torts e.g. negligently or carelessly committing trespass, nuisance
or defamation. This is the subjective meaning of negligence advocated
by the Austin, Salmond and Winfield.
2. Negligence as a type of conduct- Negligence is a conduct, not a state
of mind. Conduct which involves the risk of causing damage. This is the
objective meaning of negligence, which treats negligence as a separate
or specific tort.

Kinds of Negligence
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1. Contributory Negligence
In certain circumstances a person who has suffered an injury will not be
able to get damages from another for the reason his own negligence has
contributed to his injury; every person is expected to take care
reasonable care of himself. According

to john G. Fleming, “Negligence is conduct that fails to conform to the

standards required by law for safeguarding others (actionable
negligence) against unreasonable risk of injury.” Thus, when the plaintiff
by his own want of care contributes to the damage caused by the
negligence or wrongful conduct of the defendant, he is considered to be
guilty of contributory negligence It does not mean breach of a duty
towards other party but it means absence of due care on his part about
his own safety.

For example, a pedestrian tries to cross the road all of a sudden and is
hit by a moving vehicle; he is guilty of contributory negligence. In this
case, the defendant could completely escape his liability for accident.
Take another case, if the conductor of a bus invites passengers to travel
on the roof of the bus, and one of the passengers travelling on the roof is
hit by the branch of a tree and falls down and gets killed, there is not
only negligence on the part of the conductor also contributory negligence
on the part of the passengers. What amounts to contributory negligence
in the case of an adult may not be so in case of a child. If, however, a
child is capable of appreciating the danger he may be held guilty of
contributory negligence.
In Yachuk v. Oliver Blis Co. Ltd, the defendant’s servants sold some
gasoline to two boys aged 7 and 9 years. The boys falsely stated that
they needed the same for their mother’s car. They actually used it for
their play and one of them got injured. The defendant was held liable in
full for loss.

2. Composite Negligence
When the negligence of two or more persons result in the same damage
to a third person there is said to be a ‘composite negligence’, and the
persons responsible are known as ‘composite tort-feasors’.
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In case of contributory negligence there is negligence on the part of the
defendant as well as the plaintiff. Plaintiff’s own negligence contributes
to harm which he has suffered. In the case of composite negligence,
there is negligence of two or more persons towards the plaintiff, and the
plaintiff himself is not to be blamed.
While contributory negligence is a defense available to the defendant to
overcome or reduce the liability in relation to the plaintiff, the composite
negligence is not a defense.

The last opportunity rule

At Common Law, contributory negligence was a complete defense, and

the negligent plaintiff could not claim any compensation from the
defendant. The court modified this rule and introduced the rule of “Last
Opportunity” or “Last Chance The last opportunity rule may be stated as:
“When an accident happens through the combined negligence of two
persons, he alone is liable to the other who had the last opportunity of
avoiding the accident by reasonable care”.
The rule was applied in Davies v.Mann, in this case, the plaintiff fettered
the forefeet of his donkey and left it in a narrow highway. The defendant
was driving his wagon too fast and the donkey was run over and killed.
In spite of his negligence the plaintiff was entitled to claim compensation
because the defendant had the last opportunity to avoid the accident.

The rule was further defined in the case of British Columbia Electric Co.
v. Loach ,“a defendant, who had not in fact the last opportunity to avoid
the accident, will nevertheless be liable if he would have that opportunity
but for his negligence” (Constructive Last Opportunity). The rule of last
opportunity also was very unsatisfactory because the party, whose act of
negligence was earlier, altogether escaped the responsibility.

Res ipsa loquitor

according to the Latin maxim ‘res ipsa loquitur’ which means the thing
speaks for itself. In such a case it is sufficient for the plaintiff to prove
accident and nothing more. The defendant can, however, avoid his
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liability by disapproving negligence on his part. Certain things regarding
this maxim has to be kept in mind, these include:
(1) The maxim is not a rule of law. It is a rule of evidence benefiting the
plaintiff because the true cause of accident may lie solely within the
defendant’s knowledge. (2) The maxim applies when- (i) the injurious
agency was under the management or control of the defendant, and (ii)
the accident is such as in the ordinary course of thing, does not happen
if those who have the management use proper care. (3) The maxim has
no application when the accident is capable of two explanations. Also, it
does not apply when the facts are sufficiently known.
If a brick falls from a building and injures a passerby on the highway, or
the goods while in the possession of a bailee are lost, or a stone is found
in a bun, or a bus going on a road overturns, or death of a person is
caused by live broken electric wire in a street, a presumption of
negligence is raised.

In Agya Kaur v. Pepsu Road Transport Corporation, 1980, a rickshaw

going on the correct side was hit by a bus coming on the wrong side of
the road. The speed of the bus was so high that it, after hitting the
rickshaw, also hit an electric pole on the wrong side. It was held that
from these acts, the only inference which would be drawn was that the
driver of the bus was negligent. The defendant Corporation whose driver
had caused the accident was held liable.

The Doctrine Of Alternative Danger

Although, the plaintiff is supposed to be careful in spite of the negligence

of the defendant, the plaintiff might become perplexed or nervous by a
dangerous situation created by the defendant and to save his person or
property, he may take an alternative risk. The law therefore allows the
plaintiff to encounter an alternative danger to save himself from the
danger created by the defendant .If the course adopted by him results in
some harm to himself, his action against the defendant will not fail. The
judgement of the plaintiff should not, however, be rash. In Shyam Sunder
v. State of Rajasthan, due to the negligence of the defendants, the State
of Rajasthan, a truck belonging to them caught fire hardly after it had
covered a distance of only 4 miles on a particular day. One of the
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occupants, Navneetlal, jumped out to save himself from the fire, he
struck against a stone lying by the
roadside and died instantaneously .The defendants were held liable.
“Contributory Negligence” And “Volenti Non Fit Injuria” Distin

Tort feasor

A tortfeasor is an individual or entity that has been found to have

committed a civil offense that injures another party.

Such disputes are resolved in the branch of the justice system that is
known as tort law. The objective of tort law is to provide a remedy for
damage suffered by one party and caused by the action (or inaction) of
another.
In a strict liability tort, a tortfeasor may be found liable for damage that
was not intentional.
In an intentional tort, the tortfeasor is found to have willfully caused the
damage or injury.
In a negligent tort, the tortfeasor is found to be liable for failing to take
proper care

Independent Tortfeasors
When the acts of two or more persons, acting independently, concur to
produce a single damage, they are known as independent tortfeasors.
There is no concerted action on the part of independent tortfeasors.
There is mere similarity of design on their part although they act quite
independently of one another.
For eg. two motorists driving negligently and coming from the opposite
direction collide and a pedestrian is crushed between the two cars, these
motorists are independent tortfeasors.

In The Koursk,
due to independent negligence of the two ships, they collided with one
another and as a consequence of the same, one of them ran into and
sank a third vessel. It was held that they were not joint tortfeasors but
only independent tortfeasors. The liability of the independent tortfeasors
was not joint but only “several’ and, therefore, there were as many
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causes of action as the number of tortfeasors. It was thus further held
that since they were severally liable, an action against one of them was
no bar to an action against the other.

Joint tortfeasor

Two or more persons are said to be joint tortfeasors when the wrongly
act, which has resulted in a single damage, was done by them, not
independently of one another, but in furtherance of a common design.
When two or more persons are engaged in a common pursuit and one of
them in the course of and in furtherance of that commits is tort, both of
them will be considered as joint tortfeasors and liable as such.

In Brook v. Bool,
A and B entered Z’s premises to search for an escape of gas. Each one
of them, in turn, applied damage to Z’s premises in this case, even
through the act of A alone had caused the explosion, but both A and B
were considered to be joint tortfeasors and thus held liable for the
damage.

No Fault Liability :-

The Rule of Strict Liability also known as The Rule of No-Fault Liability
which means the individual might have the liability without being at fault.
The person in this case may not have done any harmful or negligent act
or may have put in some positive efforts, however, the rule claims him
for compensation. That means the defendant or the doer will be held
liable irrespective of presence of any negligence from his part.

Strict Liability :-

Strict liability is the principle which evolved from case of Rylands v

Fletcher in the year 1868. This principle clearly states that a person who
keeps hazardous substances in his premises, is responsible for the fault
if that substance escapes in any manner and causes damages. This
principle stands true if there was no negligence on the side of the person
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keeping it and the burden of proof always lies on the defendant to prove
how he is not liable.
Caselaw :
Facts: There were two men living next to each other, Rylands and
Fletcher. Fletcher owned a mill for whose energy requirement; he
constructed a water reservoir on his land. To get this work done, he had
hired independent contractors and engineers. There were old unused
shafts under the site of the reservoir which the engineers didn’t notice
and thus did not block them. Due to the negligence of the contractors,
the shafts that led way to Rylands’ land burst when water was filled in
the reservoir. This caused huge damage and loss to Ryland as the water
entered into his coal mine. Thus, Ryland filed a suit against Fletcher.

Issues: The issue was very concise and straight. Can the defendant be
held liable for the act of someone else due to which an entity on his land
escapes without his negligence or intention.

The defendant took the defence that that it was not his fault but the
contractors’. His being liable for the damage, the cause of which was
unknown to him was not acceptable to him.

Judgment: The house of the Lords rejected the plea of the defendant
and claimed him to be liable for all the damages to Rylands

Essentials of Strict liability :-

1 .Dangerous Substance::
The defendant will be held strictly liable only if a “dangerous” substances
escapes from his premises. For the purpose of imposing strict liability, a
dangerous substance can be defined as any substance which will cause
some mischief or harm if it escapes. Things like explosives, toxic
gasses, electricity, etc. can be termed as dangerous things.

2. NON-NATURAL USE OF LAND

Use of the land must be other than its ordinary use, i.e., the purpose for
which it is
meant or the purpose for which it is suitable.
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Illustrations of natural use of land can be: storage of water in reservoir
for mill or use, storage of one or two gas cylinder for domestic
use,electricity connection to light the house, lighting an oil lamp in house
etc.
In Sochacki v. Sas, B, who was a lodger in A’s house, lit a fire in his
room and went out. While he was out, his room caught fire may be due
to jumping of a spark. It spread and damaged A’s property in the rest of
the house. There was no evidence of negligence on the part of B. It was
held that B was not liable under Rylands v. Fletcher since his use of the
fire in his grate was an ordinary, natural, proper,
everyday use of a fire place in a room.

3. ESCAPE
Defendant would be liable only when there is escape of the object
fromland of which he is in occupation or control.
Read v. J. Lyons & Co. Ltd., Appellant was employed as an Inspector of
Ammunition. He was injured by the explosion of a shell while she was on
respondent's premises in the performance of her duties. Further there
was no proof of negligence on the part of the defendant. The Court held
that the injury was caused on the premises of the defendants i.e. not
outside, thus no escape thereby, the respondents were not liable.

Exceptions to Strict Liability :-

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

1) Act of God

An act of God is a sudden, direct and irresistible act of nature that

nobody can reasonably prepare for. It can cause damage regardless of
how many precautions one may take. For example, tsunamis, tornadoes,
earthquakes, extraordinary rainfall, etc. are acts of God. Any damage
that occurs due to these acts does not attract strict liability.

2) Wrongful act of a third party

 19
Sometimes, the involvement of third parties may be the cause of
damages. For example, renovation work in one flat may cause some
nuisance to another flat. Here, the tenant affected by the nuisance
cannot sue his landlord. He can only sue the person renovating the other
flat.

3) Plaintiff’s own fault

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

Absolute liability

The rule of absolute liability, in simple words, can be defined as the rule
of strict liability minus the exceptions. In India, the rule of absolute
liability evolved in the case of MC Mehta v Union of India. This is one of
the most landmark judgment which relates to the concept of absolute
liability.

The facts of the case are that some oleum gas leaked in a particular
area in Delhi from industry. Due to the leakage, many people were
affected. The Apex Court then evolved the rule of absolute liability on the
rule of strict liability and stated that the defendant would be liable for the
damage caused without considering the exceptions to the strict liability
rule.

According to the rule of absolute liability, if any person is engaged in an

inherently dangerous or hazardous activity, and if any harm is caused to
any person due to any accident which occurred during carrying out such
inherently dangerous and hazardous activity, then the person who is
carrying out such activity will be held absolutely liable.

Death in tort
 20
According to the English common law, no cause of action arises against
the person who is dead. This rule was contained in the maxim “Actio
personalis moritur cum persona”, the cause of action dies with the
person, thus, if any of the parties die, cause of action comes to an end.

The application of the maxim in India can be seen in the case of :

Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital

Facts
A complaint was filed by Balbir Singh Makol against the surgeon alleging
that his son died because of the blunder committed by the surgeon.
While the proceedings were going on, the Surgeon died.
Held
The National Commission applied the maxim “Actio personalis moritur
cum persona” and held that with the death of the surgeon the cause of
action has also come to an end and therefore, the legal heirs of surgeon
can not be made liable for the same.

Remoteness of damages

When a person commits a tort, it has consequences, these

consequences in return may have more consequence therefore further
leading to a chain of such events. The doctrine of the remoteness of
damages is a method or test used to calculate the losses caused due to
wrongdoing or breach or to what extent the previously mentioned chain
consequences is the defendant responsible for. By this method, the
liability of the defendant within reasonable bounds is decided through
certain tests.

The general principle behind the doctrine of the remoteness of damage

was laid down in the Court of Exchequer, in the case of Hadley v.
Baxendale, the plaintiff’s mill had come to a stop because of a break in
their crankshaft. The defendant failed to deliver the broken crankshaft to
the manufacturer within the agreed time, which in turn led to delay in
restarting the mill. The plaintiff bought a case against the defendant to
 21
recover the profits lost because of the delay in restarting the mill. The
profits of the mills should be stopped by an unreasonable delay in the
delivery of the broken crankshaft to the third person held by the court
while rejecting the claim.

The rule guiding the judges in such cases is when a contract between
two parties is breached by one of them, the other party is entitled to
receive damages but only if the breach of contract has arisen naturally,
fairly and reasonably.
Wagon Mound Case.

The facts of this case are as follows:

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 Repolemis .
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 foreseen the damage to the
respondent and therefore were not liable for the damage caused.

VICARIOUS LIABILITY
As a general rule, a man is liable only for his own act but there are
certain circumstances in which a person is liable for the wrong
committed by others. This is called "vicarious liability", that is, liability
 22
incurred for another. The most common instance is the liability of the
master for the wrong committed by his servants. In these cases liability
is joint as well as several. The plaintiff can sue the actual wrong- doer
himself, be he a servant or agent, as well as his principal. In the words of
Salmond, "In general a person is responsible only for his own acts, but
there are exceptional cases in which the law imposes on him vicarious
responsibility for the acts of another, however, blameless himself."

Vicarious liability is a liability where the master is liable for the tort of his
servant, principal for his agent, partner for another partner and an
employer for an employee.

The legal maxim Qui Facit per alium Facit per se also applies to the
concept of vicarious liability, which means he who acts for another, acts
for himself.

Four important kinds of vicarious liability are:

Principal-Agent Relationship.
Partners.
Master and Servant.
Employer and Independent Contractor.
Principal-Agent Relationship

An agent is a person who acts on behalf of the principal. Therefore, if an

agent does any wrongful act in the course of his employment, then the
master will be held liable for the acts committed by the agent.

Suppose the agent performs some activity in the absence of the

principal, which favours the principal, even though the principal does not
know this act. In that case, he will still be held responsible as the agent
acted for the principal’s benefit.

Partners

All the partners are liable to the same extent as the guilty partner. In
Hamlyn vs Houston, one of the two partners bribed the plaintiff’s clerk,
 23
persuading him to provide confidential information about his employer’s
firm. The court decided that both partners were responsible for the tort
committed by only one of them.

Master and Servant

Master will be held liable for the tort or wrongful act committed by his
servant during the course of employment. Obviously, the servant will
also be held liable.

A master is liable not only for the acts that the servant has committed but
also for the acts done by him that are not explicitly authorised.

Principal of Respondent Superior will be applicable here, which says, let

the principal be liable.

The master is liable even though the servant acted against the
expressed instructions.

Employer and Independent Contractor

Ordinarily, an employer is not liable for the tort committed by an

independent contractor. But there are certain conditions where even the
employer will be held liable.

The employer is liable only if he has committed a tort.

When the employer authorises him to commit a tort.
In torts of strict liability.
Negligence of an independent contractor.

Vicarious Liability of State

Under Vicarious Liability it was conveyed that an individual is liable for

the acts of another.
 24
This was stated by the Judiciary which is a part of the State/
Government. This gives rise to a question –

What if the Government’s employees have done any wrongful act

resulting in damage to others?
The answer for this question is the Vicarious Liability of State. Vicarious
Liability of State got evolved by the East India Company in 1858. But the
article 300 came into effect from 1950.

In India, while there is no clear law dealing with the vicarious liability of
the State, Article 300 of the Indian Constitution specifies that the union of
India or the Government of State can sue and be sued like any ordinary
person. Vicarious Liability of state is also known as the tortious liability of
the Government. State’s liability for the tortious actions of its employees
is called as tortious liability of the State. State is liable for the acts of
negligence, wrongful execution and omission or commission either
voluntarily or involuntarily.

The Doctrine of Common Employment (As an Exception to The

Rule of Vicarious Liability)

The doctrine of common employment was introduced in the English law

probably as a defence to the principle of vicarious liability. This doctrine
stated that an employer/master cannot be held liable for the injuries of
his/her servant caused by the negligence of a fellow servant. This
doctrine was first used in the case of Priestley vs. Fowler, 1837 where a
butcher boy sued his master due to the injury caused to him by the
collapse of his master’s van. The master was not held liable as the injury
was caused to him due to the negligent overloading of his fellow servant.

The chief reason behind this judgment was to limit the liability of a
master for the actions of his servants only during the course of their
employment. At that time it was considered to be fair, but later the use of
this doctrine was extended to any injury received by the servant for any
ordinary risk of service. This became the reason for its criticism. The
defence made in favour of the doctrine was that the servant on his/her
 25
own will have entered into the company and has all the knowledge of the
potential risk

TRESPASS TO THE PERSON

There are three main wrongs which fall under the umbrella of trespass to
the person: assault, battery and false imprisonment. They are intentional
torts, meaning they cannot be committed by accident. Although these
descriptions sound like they are crimes, and indeed do share their
names with some crimes, it is important to remember that these are civil
wrongs and not criminal wrongs. 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.

Assault
Assault means physical contact. But in tort, an assault occurs when a
person apprehends immediate and unlawful physical contact. In other
words, fearing that you are about to be physically attacked makes you
the victim of an assault. It is also necessary that an attack can actually
take place. If an attack is impossible, then despite a person’s
apprehension of physical contact there can be no assault. So a person
waving a stick and chasing after another person who is driving away in a
car would not be an assault. It is also generally thought that words alone
cannot constitute an assault, but if accompanied by threatening
behaviour the tort may have been committed.
Battery
If the physical contact that is apprehended in an assault actually takes
place, then the tort of battery has been committed. 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.

False Imprisonment
False imprisonment is the unlawful restraint of a person which restricts
that person’s freedom of movement. The victim need not be physically
restrained from moving. It is sufficient if they are prevented from
 26
choosing to go where they please, even if only for a short time. This
includes being intimidated or ordered to stay somewhere. A person can
also be restrained even if they have a means of escape but it is
unreasonable for them to take it, for example, if they have no clothes or
they are in a first floor room with only a window as a way out. False
imprisonment can also be committed if the victim is unaware that they
are being restrained, but it must be a fact that they are being restrained.
Defences to Trespass to the Person
1. Consent
If a person consents to being physically contacted, then no tort of battery
exists. Consent may be given expressly by words or implied from
conduct. A patient can
give express medical consent to their doctor before undergoing an
operation which in other circumstances might amount to a battery.
Similarly, certain sports, such as rugby, on the face of it comprise a
continuous series of assaults and batteries. Clearly it would be absurd if
the law allowed a rugby player to sue the opposing team for trespass to
the person. So a person who consents to being physically contacted
within the rules of a particular game is not a victim of a tort. Deliberate
acts of violence on the playing field, though, do not fall within this
defence.
2. Necessity
A wrongdoer may have a successful defence if they can show that it was
necessary to act in the way they did. In other words, there must be a
sound justification for breaking the law. A person who grabs another and
drags them by force from the path of an oncoming vehicle, and who by
doing so prevents them from serious injury or death, is not liable in tort.
Similarly, a doctor who performs emergency surgery on an unconscious
patient, who naturally cannot consent, in order to save their life, may
successfully argue that the battery was necessary if the surgery
performed was limited to that which was required to save the patient’s
life.

3. Self-Defence
The defence of self-defence will only succeed if the force used was not
excessive and was reasonable and necessary in the circumstances to
prevent personal injury. Each case must be considered on its own facts.
 27
For example, if a person is attacked with a knife it may be reasonable for
them to defend themselves also with a knife, but not necessarily with an
automatic pistol. It will be for the courts to decide what is reasonable.
4.In Defence of Others
Similarly to self-defence, a wrongdoer may successfully argue that their
actions were justified in order to assist a third party who they reasonably
believe is in immediate danger of being attacked. Most commonly this
occurs when a parent is protecting a child or one spouse is protecting
another.
5.Defence for False Imprisonment
If the victim was restrained under legal authority or justification, or if the
perpetrator was exercising their legal rights or duties, then there is a
complete defence to false imprisonment
.
Malicious Prosecution

Malicious prosecution is a mode of abuse of legal process. Malicious

prosecution consists of institution of criminal proceedings in a court of
law maliciously and unreasonably and without a proper cause of action.
If a person can show actual damage, he can file an action for damages
under the law of torts.
Essentials:
i. The proceedings were instituted without any probable or reasonable
cause
ii.Proceedings were filed maliciously and not to book a criminal in a court
of law/not with a mere intention of carrying the law into effect
iii. Termination of Proceedings in favour of the Plaintiff
iv. As a result of such prosecution, the plaintiff has suffered damage.

Example: P informed police that a theft has been committed in his house
and he suspected that it has been committed by A. A was consequently
arrested but was discharged by the magistrate as the final police report
showed that A was not connected with the theft. When A prosecuted P
for malicious prosecution, the court dismissed the suit as there was no
prosecution in a court of law. To prosecute is to set the law in motion.
 28
Trespass to Goods

Define trespass to goods with the help of relevant cases.

If, there is a direct act which causes damage to goods by seizure or

removal to someone then it is called as trespass to goods. For example,
removing a tyre from a motor car G.W.K. Ltd. v. Dunlop Rubber Co. Ltd.,
(1926) 42 ILR 376. Scratching the panel of a coach [Foulder v.
Willoughby, (1841) 8 N&W 549.] destroying or injuring the goods,
beating or killing the animals or infecting them with the desease1 or
chasing the animals to make them run away from the possession of
owner or killing a dog by giving it poisoned meat.2

For trespass to goods, it is essential that the injury and damage must be
direct and not consequential. It is further required that the plaintiff must
have the possession of goods either actual or constructive or a legal
right to the immediate possession at the time of trespass. A trespass to
goods is also actionable per se i.e., without any proof of actual damage.

Kirk v. Gregory, (1876) 1 Ex D 55.-in this case, on a person's death, his

sister-in-law removed some jewellery from his dead body and kept it in
another room with a reasonable belief that the jewellery will be more
safe in another room since people will come to pay homage to
deceased. But, it was her mistaken belief and the jewellery got stolen
from that room. Sister-in-law was held liable for trespass to the jewellery.
Earlier, it was not essential for the plaintiff to prove intention or
negligence on the part of defendant in an action for trespass, but now in
the light of recent cases of trespass to person, it appears that the plaintiff
should prove intention or negligence of the defendant in respect of
trespass to goods.

Defences

While exercising a legal right or under legal process or in defence of

person or property, trespass to goods can be justified. For example, a
man can't be held liable if he interferes with another's chattels in defence
of his son's livestock.
 29

Examples (a) If A's dog attacks B's sheep then B is justified in shooting
the dog but the condition is that, the shooting should be reasonable and
essential for the protection of livestock.

(b) If X leaves his vehicle on the road in a manner that it has blocked the
passage then Y can remove the vehicle to facilitate his passage and in
doing so, he would not be held liable for trespass.

Remedies

Explain detinue and elaborate what was lacking from this defence; give
the salient features of Interference with Goods Act, 1977 which allows
for conversion remedies.

Detinue is an action to recover the goods which has been wrongfully

detained by the defendant. The plaintiff can bring the action against the
defendant who unlawfully detains the goods and doesn't deliver the
same on lawful demand. Detinue was abolished in England by the Torts
(Interference with Goods) Act, 1977, which allows for conversion
remedies that were available under common law for detinue. Under
section 3 of the Act, provision has been given to recover the damages by
delivery of goods or payment of damages equivalent to the value of
goods.

Similar Act in India is not available but under sections 7 and 8 of the
Specific Relief Act, 1963 provision has been given to recover the specific
movable property. Section 7 enables a person to recover his property in
a manner provided by Civil Procedure Code, 1908, and section 8 of the
Act provides speedier relief to the plaintiff in certain cases to recover the
specific property from the defendant. For example-

(i) when the defendant is an agent or trustee for the plaintiff;

(ii) when compensation would not afford the plaintiff adequate relief;
 30
(iii) when it is very difficult to ascertain the actual damage caused by its
loss; and

(iv) when the possession of the thing has been wrongfully transferred.

Conversion

Conversion is said to have been committed when there is wilful

interference without lawful justification with other's property.

Salmond -

a conversion is an act of wilful interference, without lawful justification,

with any chattel in a manner inconsistent with the right of another,
whereby that other is deprived of the use and possession of it. We can
say that intentional interference with another man's property is
conversion. Even, if a person honestly believes that he is entitled to do
so and interferes with the property of plaintiff, he is liable for conversion.

An act of conversion may be committed in following ways-

(i) when some property is taken by someone wrongfully.

(ii) property is wrongfully parted with.

(iii) wrongful sale of goods/property.

(iv) wrongful retention of goods.

(v) wrongful destruction of property.

(vi) when the lawful owner's right is denied.

Conversion by Taking :
 31
Any person who without being authorised by the owner of the property
takes possession of his goods with the intention of asserting suzerainty
over them is liable of conversion.

For example - to steal someone's goods is a conversion, but mere

removal of the goods from one place to another will not be an assertion
of rights adverse to the plaintiff's.

Conversion by parting with goods :

If, someone (A) was entrusted with the duty to look after the goods of B
but, if A puts it in someone else (C) hands then it is contrary to what A
has been entrusted with. The mistake has been committed as soon as
some rights over property have been given along with the possession

Conversion by sale of Goods

If, a person innocently obtains possession of the goods of a person who

has been fraudulently deprived of them and disposes them of whether
for his own benefit or that of any other person, is guilty of conversion

Wrongful retention of goods

If, a man is in possession of another's chattel and refuses to hand it over

to its real owner, then it is an assertion of a right inconsistent with his
general dominion over it; and the use which at all times, and in all places
he is entitled to make of it, and consequently amounts to an act of
conversion.

Demand and Refusal

If the goods of an owner are in possession of someone else then he

should send someone to demand and receive them and if the demand of
his or his agent is not met by the possessor this is the evidence of
conversion

Wrongful destruction of goods/property:

 32

A person who without any justified reason wilfully consumes or destroys

a chattel belonging to another person and some article loses its shape or
identity, it amounts to destruction. For example, eggs are destroyed
when an omelette is made; cotton is destroyed when yarn is made and
corn is destroyed when it is ground into flour.

When the lawful owner's right is denied:

Earlier, it was said that the conversion of goods may happen even
though the defendant has never been in physical possession of them, if
his act amounts to an absolute denial and repudiation of the plaintiff's
right.

It was overruled by section 11(3) of the Torts (Interference with Goods)

Act, 1977 which provides that denial of title is not itself a conversion.

Defence to conversion

Jus Tertii is a defence to an action for conversion. It may be the

defendant's plea that some third party has superior title to that of plaintiff.
But, this defence has got some limitations as-

(i) where the plaintiff was in possession of the goods at the time of
conversion, the defendant cannot plead jus tertii; Armory v. Delamirie,
(1722) 1 Stir 505.

(ii) where the plaintiff was not having the possession of goods at the time
of conversion in actual terms, but only a right to possess, in such a case
the defendant can take the plea of jus tertii; Leake v. Loveday, (1842) 4
M&G 972.

(iii) a bailee is estopped from setting up the title of an owner who has not
given him authority to make the claim on his behalf; Rogers v. Lambert,
(1891) 1 QB 318.

Tresspass to land
 33

Trespass to land means “interference with the possession of land

without justification.” To constitute the wrong of trespass neither
force, nor unlawful intention, nor actual damage is necessary.
Trespass may be committed

(1) By entering upon the land of plaintiff, or

(2) By remaining there, or

(3) By doing an act affecting the sole possession of the plaintiff, in

each case without justification.

Trespass could be committed either by a person himself or doing

the same through some material object e.g. throwing of stones on
another person’s land, driving nails into the wall, allowing the
diffusion of gas or invisible fumes, leaving debris upon the roof,
allowing cattle to stray on another person’s land. It is, however, no
trespass when there is no interference with the possession and the
defendant has been merely deprived of certain facilities like gas and
electricity.

A man is not liable for trespass committed involuntarily (e.g. when

he is thrown upon the land by someone else), but he is liable if the
entry is intentional, even though made under a mistake, e.g. if in
moving in his own land, a man inadvertently allows his blade to cut
through into his neighbour’s field, he is guilty of a trespass. An entry
upon another’s land constitutes trespass to land whether or not the
entrant knows that he is trespassing

Trespass is a wrong against possession rather than ownership.

Therefore, a person in actual possession can bring an action even
though, against the true owner, his possession was wrongful. An
 34
owner of land who neither has possession nor any immediate right
to possess it, cannot bring an action for trespass.

Defences to Trespass

Any justifiable entry or interference will negative liability for

trespass. Justification by law, private defence, inevitable accident,
necessity and parental authority, etc. is well recognised lawful
defences for trespass. It may be noted that every continuance of
trespass is a ‘fresh’ trespass, in respect of which a new cause of
action arises from day to day as long as the trespass continues.

Remedies for Trespass

(i) Re-entry – The person entitled to possession can enter or

re-enter the premises in a peaceable manner.

(ii) Action for ejectment – A person in lawful possession when

dispossessed of certain immovable property without due course of
law, can recover back the property by Sling a suit within 6 months of
his dispossession.

(iii) Action for mense profits – Apart from the right of recovery of
land by getting the trespasser ejected a person who was wrongly
dispossessed of his land may also claim compensation for the loss
which he has suffered during the period of dispossession. Mense
profits refers to the profits taken by the defendant during the period
of his occupancy.

(iv) Distress damage feasant – This right authorises a person in

possession of land to seize the trespassing cattle or other chattels.
He can detain them until compensation has been paid to him for the
damage done.
 35
Intimidation

Intimidation is an established tort, the threat of doing an unlawful

act for compelling a person to do something to his own detriment,
injuring or harming himself or to the detriment of someone else.
For constituting a wrong of intimidation, there should be a threat to
do an unlawful act for compelling a person to do something to his
own detriment, injuring or harming himself or to the detriment of
somebody else. If the threat does not cause any detriment or it is to
do something which is not unlawful, there is no intimidation. In the
case of Venkata Surya Rao v. Nandipati Muthayya, an agriculturist
pleaded that he was unable to pay the arrears of land revenue for
which the village munsif threatened to distrain the earrings worn by
him if no other movable property was readily available. The village
goldsmith was also called for the same but on his arrival, one of the
villagers made the necessary payment. It was held that there was
no intimidation in this case since the threat was not to do something
unlawful and had not compelled the plaintiff to do something to his
own detriment or to the detriment of somebody else.

Conspiracy

An act where two or more persons without any lawful justification,

come together with the sole purpose of willfully causing damage to
the plaintiff, and an actual damage results therefrom, this would
result in the tort of conspiracy. The tort of conspiracy is known as
the civil conspiracy. Conspiracy can be termed as a tort as well as a
crime.

Essentials of the tort of conspiracy

There are three essentials of the tort of conspiracy, the presence of
intention is the first and foremost, for a tort to become a conspiracy,
the presence of common intention to harm the other person is a
 36
must. If the sole purpose of the combination is to defend the trade
of those who enter into it or further the trade and not to injure any
person, then no wrong is committed and no action will lie although
damage has been incurred by the complainant. The aim or the
purpose of the coming together or combination must be to cause
damage to the claimant, however, the degree of intention to harm
may differ (its presence is of utmost importance).

The second essential element is “combination”, which refers to two

or more persons coming together for a common purpose of
performing a concerted action. The mere presence of similar
intention without any combination is not enough for the tort of
conspiracy. For example, two different persons Mr. X and Mr.Y
having the same intention of harming Mr.W cannot be held liable
under conspiracy as they were not combined together even though
having the same intention, if with the same intention both the
persons have combined together and Mr.X is guarding the door
whereas Mr.Y proceeds to harm Mr.W, then this will give rise to the
tort of conspiracy.

The third essential is the presence of some overt acts done, that
cause damage or harm to the other person. It is an act that is done
to fulfill the purpose of the conspiracy. The final stage for the
completion of the tort of conspiracy is that some overt act must be
done, the completion of the conspiracy is not necessary even if a
certain action is carried out in regards to the conspiracy resulting in
the damage is sufficient. The tort of conspiracy can be said to be
complete if there is a certain element of damage even if the overt
act has not been accomplished completely.

When these three essentials are fulfilled then only it can be

considered as a civil conspiracy.

Passing off
 37

Passing off is wrong in which a person uses deceptive measures for

increasing his sales, to push up his sales in trade and to put up
such an impression that these particular goods are of someone
else. No person has the right to allow his goods to be showcased
as of some other person. In other words, he has no right to
represent his goods as somebody else. When a person uses the
same name or even a similar name with that of the plaintiff’s goods,
by which it appears as if they are the goods supplied by the plaintiff
then the wrong of passing off has been committed. Even without
proof of any knowledge of an intention to deceive, the defendant will
be held liable. It is not necessary to prove the damages suffered by
the plaintiff if it is proven that the defendant’s goods were made up
as such or described by them which led the ordinary customers to
mistake the goods of the defendant as that of the plaintiff.

The aim of the tort of passing off is complementary to the trademark

law. It is to protect the goodwill which a commercial has earned so
that no one can make the use of the same. In trademark, nobody
can interfere with the right by using the mark, the registered
trademark is the monopoly of a person. And in the case of passing
off, it is the goodwill that is protected, which a trader has earned by
his design, goods or trade name.

Elements involved for the tort of passing off

Two elements are required for the tort of passing off:

A Certain name has been established and became distinctive with

regards to the plaintiff’s goods, and
The use of that name by the defendant was for the purpose of
deceiving and has caused confusion and injury to the business
reputation of the plaintiff.
 38

Injurious Falsehood
The tort of injurious falsehood (also known as trade libel) consists of
the malicious publication of a falsehood concerning the plaintiff that
leads other persons to act in a manner that causes actual loss,
damage, or expense to the plaintiff. Injury to reputation is not a
necessary element to this tort.

Claims for injurious falsehood often arise in the context of

comparative advertising. The tort may also be characterized as
commercial disparagement, slander or title, or malicious falsehood
depending on the context of the publication.

The plaintiff may sue for interference with any potential advantage
including those of a non-commercial nature. A common claim,
however, is that the injurious falsehood amounts to a
disparagement of the plaintiff’s property, products, business or
services which affects their marketability. The plaintiff has the onus
of proving that: the statements were false; the defendant acted
maliciously with intent to cause injury without lawful excuse; and
actual economic loss has occurred or will occur as a result. A
plaintiff or its products normally must be identified by name in the
impugned publication, but identification by implication may be
sufficient, such as where the plaintiff enjoys almost exclusive
dominance of the market

A person is entitled to make general, unfavourable comparisons of

competitive merchandise or services with their own. However, this
entitlement does not extend to specific, false comparison between
the plaintiff and the defendant’s goods, or to false, disparaging
statements regarding particular aspects of the plaintiff’s goods or
services.
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DEFAMATION
A man’s reputation is considered valuable property and every man
has a right to protect his reputation. This right is acknowledged as
an inherent personal right and is a jus in rem i.e., a right good
against all persons in the world. Defamation refers to any oral or
written statement made by a person which damages the reputation
of another person.

Any intentional false communication, either written or spoken, that

harms a person's reputation; decreases the respect, regard, or
confidence in which a person is held; or induces disparaging,
hostile, or disagreeable opinions or feelings against a person.

Types of Defamation

There are two ways through which we can transmit the defamatory
statement. One is through slander and another one is through libel.
Libel is done through text or graphic and it is permanent in nature.
Thus, it can be said that it will stay as long as the graffiti or statue or
picture stays on.

Defamation can also be done through slander. Here, slander is

referred to as transient or non-permanent in nature. Thus, in this
case, the effect of defamation is considered to subsist for the time
period of comment or action.

Slander

Slander can also happen in a way that will closely represent libel.
For example, when you dictate some defamatory comments to your
clerk who in turn types it on a letterhead the communication that is
going to happen for the third person through the speech. Thus, in
this case, the mode of transmission is the one that is considered
transient.
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Libel

For an action to be considered as a libel the proof in contention

should be proved as defamatory, false, made public, or in writing.
The comment that defamatory made should be directly or indirectly
referred to the plaintiff. Furthermore, this comment should also draw
a reasonable connection between the comment and the person.

Though it is not necessary that person should be named specifically

neither is the intention of that defendant. However, defamation
cannot be made against a category or a deceased person such as
doctors. So, in these types of cases if the defamation happens to
injure the living person’s reputation than that person will be sued for
defamation.

Essentials of Defamation –
There are three main essentials of Defamation viz.,
1.The statement must be published
Defamation is the publication of a statement which tends to lower a
person in the estimation of right thinking members of society
generally or which tends to make them shun or avoid that person.

The standard to be applied is that of a right minded citizen. A man

of fair average intelligence, and not that of a special class of
persons whose values are not shared or approved by the fair
minded members of the society generally.

Intention to defame is not necessary

In the Scottish case of Morrison v. Ritchie & Co.[vi] where damages
were recovered against the proprietors of a newspaper who in all
innocence had announced in the paper that a lady, who had in fact
been married only a month, had given birth to twins.
 41
2.The statement must refer to the plaintiff
If the person to whom the statement was published could
reasonably infer that the statement referred to the plaintiff, the
defendant is nevertheless liable.

3.Defamation must be published

Publication means 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 AVAILABLE FOR DEFAMATION
There are three defences of defamation namely –

1. 1.Justification or truth –
Under criminal law, merely proving that the statement was true is no
defence but in civil law merely showing truth is a good defence. In
Alexander v. N.E. Rly [x], the plaintiff had been convicted of riding a
train from Leeds without having purchased a valid ticket. The
penalty was a fine and a period of imprisonment of fourteen days if
he defaulted on the fine. However, following the conviction, the
defendant published a notice that the plaintiff was convicted and
issued a fine or three weeks imprisonment if in default. The plaintiff
alleged that the defendant had committed libel by describing the
penalty issued to him inaccurately. The defendants argued that the
conviction was described with substantial and sufficient accuracy
and the words so far as they differed in their literal meaning from
the words of the conviction were not libellous.

2. 2.Fair Comment-
# The comment must be an expression of opinion rather than
assertion of fact.
# The comment must be fair i.e. without malice.
# The matter commented upon must be of public interest.
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3. Privilege-
There are certain occasions when the law recognizes the right to
freedom of speech outweighs the plaintiff’s right to reputation, the
law treats those occasions as ‘Privileged’. These are further of two
types –

Absolute privilege- No action lies for the defamatory statement even

though the statement is false or made maliciously. It applies to :
Parliamentary Privilege, Judicial proceeding and State
communication.

Qualified privilege- It is necessary that the statement must have

been without malice. The defendant has to prove that statement
was made on a privileged occasion fairly.

Youssoupoff v. M.G.M. Pictures Ltd.

, a film produced by an English Company, a lady, Princess Natasha,
was shown as having relations of seduction or rape with the man
Rasputin, a man of worst possible character. It was observed that
so far as photographic part of the exhibition is concerned, that is the
permanent matter has to be seen by the eye, and it is proper
subject of an action for libel, if defamatory.

Nuisance
Nuisance as a tort means an unlawful interference with a person’s
use or enjoyment of land, or some right over, or in connection with
it. Acts interfering with the comfort, health or safety are the
examples of it. The interference may be any way, e.g., noise
vibrations, heat, smell, smoke, fumes, water, gas, electricity,
 43
excavation or disease producing germs. Nuisance should be
distinguished from trespass. Trespass is (i) a direct physical
interference, (ii) with the plaintiff’s possession of land, (iii) through
some materials or tangible object. Both nuisance and trespass are
similar in so far as in either case the plaintiff has to show his
possession of land. The two may even coincide, some kinds of
nuisance being also continuing trespasses. The points of distinction
between two are as follows:
1. If interference is direct, the wrong is trespass; if it is
consequential it amounts to nuisance. Planting a tree on another’s
land is trespass. But when a person plants a tree over his own land
and the roots or branches project into or over the land of another
person that is nuisance. To throw stones upon one’s neighbor’s
premises is a wrong of trespass; to allow stone from a ruinous
chimney to fall upon those premises is the wrong of nuisance.
2. Trespass is interference with a person’s possession of land. In
nuisance there is interference with a person’s use or enjoyment of
land. Such interference with the use or enjoyment could be there
without any interference with the possession. For example, a
person by creating offensive smell or noise on his own land could
cause nuisance to his neighbor.
Moreover, in trespass interference is always through some material
or tangible objects. Nuisance can be committed through the
medium of intangible objects also like vibrations, gas, noise, smell,
electricity or smoke.
Kinds of Nuisance
Nuisance is of two kinds:
i. Public or Common Nuisance
ii. Private Nuisance or Tort of Nuisance

Public Nuisance
Public nuisance is a crime where as private nuisance is a civil
wrong. Public nuisance is interference with the right of public in
general and is punishable as an offence. Obstructing a public way
 44
by digging a trench, or constructing structures on it are examples of
public nuisance.
For example, digging trench on a public highway may cause
inconvenience to public at large. No member of the public, who is
thus obstructed or has to take a diversion along with others, can
sue under civil law. But if anyone of them suffers more damage than
suffered by the public at large, e.g., is severely injured by falling into
the trench, he can sue in tort. In order to sustain a civil action in
respect of a public nuisance proof of special and particular damage
is essential.
In Dr. Ram Raj Singh v. Babulal, the defendant erected a brick
grinding machine adjoining the premises of the plaintiff, who was a
medical practitioner. The brick grinding machine generated dust,
which polluted the atmosphere. The dust entered the consulting
chamber of the plaintiff and caused physical inconvenience to him
and patients, and their red coating on clothes, caused by the dust,
could be apparently visible. It was held that special damages to the
plaintiff had been proved and a permanent injunction was issued
against the defendant restraining him from running his brick
grinding machine there.

Private Nuisance

Private Nuisance is that kind of nuisance in which a person’s use or

enjoyment of his property is ruined by another. It may also
injuriously affect the owner of the property by physically injuring his
property or by affecting the enjoyment of the property. Unlike public
nuisance, in private nuisance, an individual’s usage or enjoyment of
property is ruined as distinguished from the public or society at
large. The remedy for private nuisance is a civil action for damages
or an injunction or both.

Elements which constitute a private nuisance

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The interference must be unreasonable or unlawful. It is meant that
the act should not be justifiable in the eyes of the law and should be
by an act which no reasonable man would do.
Such interference has to be with the use or enjoyment of land, or of
some rights over the property, or it should be in connection with the
property or physical discomfort.
There should be seeable damage to the property or with the
enjoyment of the property in order to constitute a private nuisance.

defences available to Nuisance?

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

1. Prescription

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

allowed by the law, a person claims any property because his
ancestors have had the possession of the property by law.
Prescription is a special kind of defence, as, if a nuisance has been
peacefully and openly been going on without any kind of
interruption then the defence of prescription is available to the party.
On the expiration of this term of twenty years, the nuisance
becomes legalised as if it had been authorised in its
commencement by a grant from the owner of the land.
The essence of prescription is explained in Section 26 of the
limitations act and Section 15 of the Easements Act.
There are three essentials to establish a person’s right by
prescription, these are

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

property must be acquired by the individual by law and the use or
enjoyment must be done openly and peacefully.
 46
Identity of the thing/property enjoyed: The individual should be
aware of the identity of thing or property which he or she is
peacefully or publically enjoying.
It should be unfavourable to the rights of another individual: The
use or enjoyment of the thing or property should be of such a nature
that it should be affecting the rights of another individual thus
causing a nuisance and even after knowing of such a nuisance
being caused there must’ve been no action taken against the
person causing it for at least twenty years.
2. Statutory authority

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

land in a way, all the remedies whether by action or indictment or
charge, are taken away. Provided that every necessary reasonable
precaution has been taken.
The statutory authority may be either absolute or conditional.
When there is an absolute authority, the statue allows the act and it
is not necessary that the act must cause a nuisance or any other
form of injury.
Whereas in the case where there is a conditional authority, the state
allows the act to be done only if it can be done without any
causation of nuisance or any other form of injury.

remedies for nuisance?

There are three kinds of remedies available in the case of a

nuisance, these are:

1. Injunction

An injunction is a judicial order restraining a person from doing or

continuing an act which might be threatening or invading the legal
rights of another. It may be in the form of a temporary injunction
which is granted on for a limited period of time which may get
 47
reversed or confirmed. If it is confirmed, then it takes the form of a
permanent injunction.

2. Damages

The damages may be offered in terms of compensation to the

aggrieved party, these could be nominal damages. The damages to
be paid to the aggrieved party is decided by the statue and the
purpose of the damages is not just compensating the individual who
has suffered but also making the defendant realise his mistakes
and deter him from repeating the same wrong done by him.

3. Abatement

Abatement of nuisance means the removal of a nuisance by the

party who has suffered, without any legal proceedings. This kind of
remedy is not favoured by the law. But is available under certain
circumstances.

This privilege must be exercised within a reasonable time and

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