Bullet Notes - English

“Law of Tort”

2024
 “BULLET NOTES”

PAHUJA LAW ACADEMY

Bullet Notes: Law of Tort
Lecture Note- 1

Nature and Definition of Law of Torts

MAINS QUESTION

1. Define Tort.

2. Distinguish between Law of Tort and Breach of Trust.

3. Distinguish between Tort and Contract?

4. Distinguish between Tort and Crime and between Tort and Quasi Contract?

5. Discuss the maxim ubi jus ibi remedium?

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 1

 “BULLET NOTES”
Lecture Note- 1

Nature and Definition of Law of Torts

 It is a branch of Law

To control the behaviour of To respect

the people in society

Rights Interest

of one another

if any person infringes it

then he will have to pay compensation to the victims or

their dependents.

This law is founded on morality

 It is based on English common law which is a product of judicial decisions.

 It is difficult to give an accurate definition of torts because

(1) (2) (3)

Based on decided cases Law of torts in England grew It is still growing
through a complicated procedure.

As per Salmond ―A tort is a civil wrong for which the remedy is an action for unliquidated damages and
which is not exclusively the breach of trust, or the breach of other merely equitable obligation.‖

From the above definition, it is conducted that it has three elements.

Specie of Civil wrong Other than Breach of Action for unliquidated

Contract or trust damages

Injured party files a

suit in civil court Means not pre-
fixed

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 2

 “BULLET NOTES”
 Characteristics of Concept of Tort

A tort arises by operation Appropriate remedy is

of law and not by consent unliquidated damages
of any particular person though other remedies
are also available

 It provides Right in rem

Available against the entire world

Here the duty is imposed by law

 Rights in personam

Against the individual

Contractual Rights Trust Right Quasi Contractual

obligation

Duty undertaken by
the party Duty imposed by law

Rights and Duties

There is a four- fold connection b/w Rights and Duties :-

(1) My right implies your duty
(2) My right implies my duty to admit a similar right of others
(3) I should exercise my right to promote social good eg., freedom of speech.
(4) State guarantees my rights, so it is my duty to support the state.

Types of Rights

Natural Rights Moral Rights Legal Rights Fundamental Rights

Civil Political Economic

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 3

 “BULLET NOTES”
When the legal rights are taken away which are primarily fixed by law, a tort is committed.
Civil
(Specific) Tort = Wrong (general)
Criminal

Sources of Law of Torts

Common Law (common custom recognised by the court in UK

Precedents (decided cases)

Law of Torts still uncodified in England and India.

In India an attempt was made by Sir Fredrick Pollock to codify the principles of law of Torts. A bill was
prepared named. ―The Indian civil wrongs Bill‖ but could not succeed.

Reasons for slow development of Torts

 Uncertainty of law
 Lack of Political consciousness
 Illiteracy
 Poverty
 Expensive and Dilatory Judicial System

Fundamental Principles behind law of torts

Ubi jus Ibi Remedium Alterum non laedere

(Where there is a right there is a remedy) (to hurt no one by word or deed)

Meaning of Tort – „Tortum‟ (Latin term) which means crooked, unlawful, twisted.
 Section 2(m) of Indian Limitation Act
 Civil wrong
 Not a BOC or BOT
 Salmond –
 Civil wrong
 Unliquidated damages
 Different from BOC, BOT, Equitable obligations
 Winfield
 Duty primarily fixed by law
 Duty towards persons generally
 Unliquidated damages

Essential elements of Tort

(1) Wrongful Act or omission recognised by law
(2) Legal damage

Injuria sine Damnum sine

Damnum Injuria

(3) Legal Remedy or damages

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 4

 “BULLET NOTES”
Distinguish between Tort and other Wrongs

Basis Tort Crime

1. Nature of wrong Private wrong/ civil wrong Public wrong/ criminal wrong
2. Nature of remedy Damages Punishment + fine
3. Parties to suit Aggrieved party files a suit Aggrieved party or state
4. Withdrawal of case Anytime Cannot be withdrawn
5. Codification Not codified Codified
6. Base of limitation Yes upto 1 year No limitation (Section 467 to 473)
7. Survival of action LR‘s can come in picture Case comes to an end IPC, 1860
8. Application of law No separate statute Always important
9. Intention Not always important

Tort and breach of Contract

Basis Tort Breach of Contract

1. Fixation of Duty Law fixes the duty Duty fixed by parties
2. Attribution of duty Duty towards persons generally Duty towards parties to contract
3. Violation of right Violation of right in rem Violation of right in personam
4. Need of privity No privity is needed Privity between the parties to be
5. Motive Often taken into account proved.
6. Damages Unliquidated Not relevant
7. Suit by third party No privity of contract Liquidated
8. Intention (PIL+Locus Standi) Privity of contract exists except
9. Concern Sometimes relevant in few cases
10. Period of limitation Losses Not relevant
11. Gratuitous Acts From the date when damage Promises
occurs From the date of breach of
Action can be brought if there is obligation
negligence in performance. No action

Tort and Breach of Trust

Basis Tort Breach of Trust

1. Damages Unliquidated Liquidated
2. Origin Common law Court of chancery (Courts in England) is
3. Law of property Not a part of law of property a part of law of property

Tort and Quasi Contract

Basis Tort Quasi Contract

Damages Unliquidated Liquidated
Attribution of duty Towards persons generally Towards a particular person

Law of Tort or Law of Torts

Winfield Salmond
 Utility theory of Winfield Consists only of specific wrongs.
 Every wrongful act for which there is no lawful excuse (Pigeon Hole Theory)
or justification is a tort

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 5

 “BULLET NOTES”
Each theory is correct

Malice

Criminal Wrong Breach of contract Torts

Every crime Not essential Requirement of Malice is limited

eg. Assault, Battery , Slander, Libel etc.

Malice used in 2 different senses

Malice in law (Presumed Malice) Malice in fact (Actual Malice)

Willful / Wrongful act done without just cause Here evil motive is there in wrongful act

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 6

 “BULLET NOTES”
PRELIMINARY QUESTION

1. The word ‗Tort‘ has been derived from the Latin word
(a) Tortum
(b) Tortus
(c) Torts.
(d) None of these.

2. Tort means
(a) A wrong.
(b) A legal civil wrong (however, every civil wrong is not a tort
(c) A legal wrong.
(d) all of the above.

3. 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 other merely equitable obligation.
This definition of ‗tort‘ is given by
(a) Winfield.
(b) Salmond.
(c) Pollock.
(d) Clerk and Lindsell.

4. The main supporter of the theory that ―it is a law of Tort‖ and ―not law of Torts‖ is
(a) Winfield.
(b) Salmond.
(c) Fleming.
(d) Heuston.

5. The propounder of ―Pigeon-hole‖ theory (‗law of torts and not ‗law of tort‘) is:
(a) Salmond.
(b) Clerk and Lindsell.
(c) Austin.
(d) Winfield.

6. The nature of a tort can be understood by distinguishing.

(a) Tort and crime.
(b) Tort and duty in civil cases viz. a contract, a trust and a quasi-contract.
(c) Right and duty
(d) Both (a) and (b).

7. The essential characteristic of a tort is, violation of '

(a) right in personam (a right available only against some determinate person or property).
(b) A contractual right.
(c) Right in rem (a right vested in some determinate person and available
(d) All of the above.

8. Ubi jus ibi remedium means

(a) Every law provides for remedies.
(b) There is no wrong without a remedy.
(c) If a law is made corresponding remedy also must be made
(d) Every remedy presupposes some injury to somebody.

9. The general remedy in law of tort is

(a) Action for damages.
(b) Action for injunction.
(c) Specific restitution of property.
(d) Action for unliquidated damages.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 7

 “BULLET NOTES”
Lecture Note- 2

CONSTITUENTS OF TORTS AND DEFENCES

Mains Questions

1. Enumerate the rights in the law of Torts, the exercise of which, even if they cause
damage, are not actionable (damnum sine injuria). Illustrate your answer.

2. (a) Discuss citing case law the maxim. ‘Volenti non fit injuria’ highlighting the point that
the maxim is “Volenti non fit injuria, not scienti non fit injuria.
(b) A messenger is employed to deliver a letter at the hotel, X. While he was in the hotel
for the purpose a ceiling fan fell upon him and he was injured. A notice exhibited at the
entrance excluded liability to the visitors which the messenger had seen. Would the
doctrine of volenti non fit injuria apply?
3. (a) In the Nineteenth Century (volenti non fit in juria) somehow found it was into the law
of torts, in which it applies both to intentional and accidental harms. It might be helpful
if a distinction is drawn between consent and assumption of risk.
(b) Trace the development of law on the above subject in the light of above statement.
4. A snake-charmer, X, was exhibiting the show of snakes on roadside. Many persons
assembled there. At the time of starting the show, he cautioned the spectators that all
snakes are poisonous. Later on, due to slight carelessness, a poisonous snake came out of
the ‗Peetara‘ (i.e. charmer‘s basket) and started creeping towards a spectator, a boy of 10
years. As soon as the snake reached the boy and was going to bite him, a spectator, B,
ran to save him. He saved the boy, but in doing so, he was bitten by the snake and in
consequence remained ill for two months. B sued X for damages, but X raises the
defence of volenti non fit injuria. How will you decide?

5. The defendant had been carrying cargo in a lorry for the plaintiff. On the way, there was
heavy rainfall. The cargo was damaged by seepage due to rainwater rising from below,
while it had been securely protected by the defendant by tarpaulin from above. The flash
blood on the highway had stranded hundreds of lorries including that of the defendant
and the water level on the highway rose above tyres and up to the level which resulted in
the seepage. However, the plaintiff claimed heavy damages from, the defendant on the
ground of negligence or want of due care. Discuss whether the defendant can have any
defence in this case.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 8

 “BULLET NOTES”
Lecture- 2

CONSTITUENTS OF TORTS AND DEFENCES

 Constituents of Torts

Wrongful Act Legal damage Legal remedy

Acts which violates Violation of Ubi jus ibi

legal rights legal right remedium

Includes omission Right recognised

also by law

Injuria sine Damnum sine

damnum Injuria

 Malice in Law of Torts

Malice in Law Malice in Fact

Wrongful act done intentionally Evil or improper motive

Without lawful excuse

Implied Malice Express Malice

General Defences: Avoidance of Liability in Tort

General defences, taken against action for
(1) Volenti non fit injuria (Defence of Consent).
(2) Plaintiff, the Wrongdoer.
(3) Inevitable Accident.
(4) Act of God.
(5) Private Defence.
(6) Necessity.
(7) Statutory Authority.
(8) Acts causing slight harm.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 9

 “BULLET NOTES”
I. Volenti Non Fit Injuria

What is volenti non fit injuria?

 A defence taken by the defendant when plaintiff has given the

Free consent and He had the knowledge That he finally

voluntary consent for of the risk appreciated the risk
accepting the risk

 Limitation of the maxim (Volenti non fit injuria)

Illegal consent (No Breach of a Negligence Rescue case

one can consent to statutory duty Condition:- act of rescue
his own death) by defendant was the Natural & probable
consequence of defendant‘s
wrong

Certain conditions must be fulfilled –

 Consent must be voluntarily given that is without any proved, compulsion or coercion.
 Knowledge is not consent. (scienti non fit injuria) Having knowledge about a risk is one thing while
consenting to such risk is another thing.

Exceptions to maxim
(1) Rescue cases (Haynes vs. Harwood)
Conditions for its application
 Plaintiff should act reasonably and not emotionally.
(2) Negligence
(3) Consent to unlawful act
(4) Breach of a statutory duty

II. Inevitable accident  means an accident which is physically unavoidable despite due care and
attention given caused by-

Act of God Factors which are within human control.

 Defence available only if accident occurs during prosecution of a lawful act.

Cases: Brown v. Kendal, (1859)- plaintiff and defendant‘s dogs were fighting. Defendant was trying to
separate them and accidently hit plaintiff‘s eye. Defendant was not held liable as injury to plaintiff was
purely accidental.

Case: Stanley v. Powell, (1891)- A fired at a bird but pellet from gun strikes a tree and rebounds and
injures B in a different direction. A can take defence of inevitable accident.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 10

 “BULLET NOTES”

III. Private Defense

Conditions

Imminent and immediate Force employed was not Force employed only
danger out of proportion for defence

Case: Morris v. Nugnet, (1836)- killing of dog when it was running away does not give right of private
defence.

Case: Turner v. Jagmohan Singh, (1905)- but if a vicious dog continued attacking defendant‘s horse
and defendant was compelled to hit dog with spear which resulted in dog‘s death, the defendant‘s
action was justified.

IV. Necessity-
 Causing of lesser harm is always justified to avert bigger loss or danger.
 Based on maxim: salus populi suprema lex.

Examples – private houses pulled down to stop fire

Surgeon performing operation on unconscious person to save his life.

Case: Kirk v. Gregory, (1876)

V. Plaintiff himself is wrongdoer

 Plaintiff cannot be deprived of his right to claim damages merely because he himself was a
wrongdoer.

 His wrongful act if totally unconnected with harm caused – then plaintiff entitled to
recover damages.

Is real cause of harm caused to him plaintiff not entitled to recover.

VI. Act of God - vis Major

Essential conditions of defence are

Damage causing Occurence Occurence

Event was result of natural must be extraordinary was beyond human foresight
force. No human agency‘s
intervention.

Case: Nichols v. Marsland, (1875)- Heavy rainfall of exceptional violence resulted in overflow of water
from artificial lakes of defendant and thus damaging four bridges of plaintiff. Held- defendant not liable
as loss occurred due to act of god.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 11

 “BULLET NOTES”
VII. Statutory Authority
If act is autorised by a statutory enactment or by a law passed by legislature, defendant can‘t be
held liable.

Case: Vaughen v. Taff Vale Rail Co.

VIII. Acts causing slight harm

Law does not take into account of trifles – De minimis non curat lax.

Remedies for Torts

Judicial Extra judicial

Damages Injunction Specific restitution

of property
Nominal Temporary
Substantial Mandatory
Special Perpetual
Exemplary Interim
Contemptuous

Abatement Expulsion of Distress Re-entry on re-captain

of nuisance trespasser damage feasant on the land of goods

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 12

 “BULLET NOTES”
PRELIMINARY QUESTIONS

1. Which one of the following is not a valid defence in tort?

(a) Volenti non fit injuria
(b) Vis Major
(c) Scienti non fit injuria
(d) Consent

2. Two strangers took lift in a jeep. A bolt fixing the right front wheel to the axle gave way toppling the
jeep. Two strangers were thrown out and one of them died of injuries and the other sustained injuries.
(a) The driver is responsible for the accident as he did not take care and caution.
(b) The owner is responsible as he let the driver to drive a defective vehicle.
(c) The strangers are responsible as they took the lift willingly (volenti non fit injuria).
(d) Both the driver and owner are responsible.

3. A music teacher was held liable for raping a minor girl even though he had taken her consent under
the pretext that an operation (sexual intercourse) is required to improve her voice. It is the fact of the
case in
(a) Ashby v White (b) R. v Clarence
(c) R. v Williams (d) R. v Catherine

4. A person who is not qualified as a medical practitioner performed an operation with the consent of a
patient. The patient died. Which one of the following grounds will be most appropriate to determine
his liability?
(a) Volenti non fit injuria is a complete defence
(b) He has no intention to kill and has performed the operation in good faith for the benefit of the
person
(c) He has earlier done similar operations with success
(d) As he is not a medical practitioner and is unskilled, the plea of consent and good faith will not be
available.

5. A railway company was authorised by law to run railway trains on a track. The sparks from the
engine set fire to the adjoining property belonging to the plaintiff.
Which one of the following defences will be most appropriate for the defendant to raise in an action
for nuisance by the plaintiff.
(a) Public good
(b) Nuisance due to other‘s acts
(c) Reasonable act in conducting his business
(d) Statutory authority.

6. The maxim ‘Salus populi suprema lex’ means

(a) No man is above the law
(b) The welfare of the people is the supreme law.
(c) The defence of statutory authority is the supreme law
(d) None of the above

7. The scope of application of the doctrine of volenti non fit injuria has been curtailed
(a) In rescue cases
(b) When the person has taken the risk by his own free will
(c) Negligence
(d) Both (a) and (c)

8. ‗Act of God‘ is also known by the name

(a) Vis major
(b) Damnum fatale
(c) Vis major of Damnum Fatale
(d) Force Majeure

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 13

 “BULLET NOTES”
Lecture- 3

JOINT TORT FEASOR

Mains Question

1. Differentiate between Independent and Joint Tort feasors. Explain it with case law.

2. What are the liabilities of Joint tort feasor.

3. Why this rule was abolished as one joint tort feasor could be insolvent. What is the liability for
this?

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 14

 “BULLET NOTES”
Lecture Note- 3

JOINT TORT FEASOR

All persons who aid or counsel or direct or join in doing a wrongful act are called Joint Tortfeasor.
Essentials :-
(1) 2 or more persons
(2) Commit a tort
(3) Acting in furtherance of common design

Independent Tort Feasor Joint Tort Feasor

Act independently and produce a single Act jointly and produce a single damage.
damage e.g., 2 motorists driving negligently, Brooke vs. Bool
coming from opposite. Directions collide e.g., A & B enter Z‘s premises to search an
with a pedestrian. escape of gas. Both applied light to the gas pipe.
It resulted in explosion. Even though act of A
alone had caused damage, but both A, B are
responsible eg., Principal and agent, master and
servant, partners.

Liability of Joint Tort feasors

(1) Joint tort feasor are jointly & severally liable.
An action can be brought against one or against all tort feasors. Earlier, if an action was brought
against one or more, the remaining could not be dragged as there is only one cause of Action. This
Rule has been abolished.
Now it is no Bar. Judgment can be applied in cases of all joint tort feasor.
To avoid hardship to plaintiff, this rule was abolished as one joint tort feasor could be insolvent.

Independent Tort Feasor Joint Tort Feasor

Liability is only several. So action against A Liability can be several or joint.
is no bar to action against B. Release of A Release of one joint tort feasor releases others as
does not mean Release of B. same cause of action. But if a covenant b/w Plaintiff
& one joint tort feasor, then does not release others.
eg., acceptance of money from one.
Khusro vs NA Guzdar (defamation case).
One defendant apologized to plaintiff. This could
not apply to all.

Liability of Innocent Tort feasor

If, through no fault of his own, a person gets mixed up in tortious acts of the other so as to facilitate their
wrong doing, no personal liability will arise.

But, he will be under a duty to assist the plaintiff. By giving full information & disclosing the identify of
wrong doers.

Rights of Tortfeasor inter se contribution and indemnity.

At common law, No action for contribution was maintainable (Merry weather vs. Nixan)
The Rule has been abrogated.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 15

 “BULLET NOTES”
The joint tort feasor can ask for contribution. The amount of contribution must be just and equitable.
If the joint tort feasor is not guilty at all, but has paid whole of the loss, in this case the guilty joint tort
feasor will be pushed to fully indemnify the innocent joint tort feasor. eg., Master can claim full
compensation from his servant for his negligent acts.

Merry weather case not applicable in India. Allahabad court says this rule is devoid of equity of burden
and benefit (Dharni Dhar vs. Chandrashekhar).

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 16

 “BULLET NOTES”
PRELIMINARY QUSTIONS

1. Who are Joint Tort Feasors?

(a) Where two or more persons commit a joint tort, or commit a tort co-list in the pursuance of
a common design, they are said to be joint tort feasors.
(b) Where two person commit Independent-actions but the action cause the same damage the
two person are said to be joint Tort feasors.
(c) Where two or more Independent Tort persons commit because of different damages to the
same client, they are said to be joint tort persons.
(d) Where two or more persons suffer harm due to the tortious act of another, they are said to be
joint tort feasors.

2. Two or more persons who inflict the same damage upon the plaintiff, but through Independent
means are known as?
(a) Several Concurrent Tort feasors.
(b) Joint tort feasors.
(c) Separate joint Tort feasors.
(d) Independent tort feasors.

3. Which of these are liability of Joint tort feasor

(a) Jointly and severally liable
(b) Judgment can be applied in cases of all joint tort fersor
(c) This Act Independent and produce a single damage
(d) Both (a) and (b)

4. Liability of independent tort feasor:

(a) Joint only
(b) Several only
(c) Joint and several
(d) Neither joint not several.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 17

 “BULLET NOTES”
Lecture Note- 4

DEFAMATION

Mains Questions

1. Whether law of torts provides for balancing of interest i.e. reputation versus freedom of speech?

2. Any imputation, which may tend to lower a person in the estimation of right thinking members of the
society generally or to expose him to hatred, contempt or ridicule is defamatory of him. Discuss the
law of damages for defamation.

3. What defences are available to the defendant in civil action for libel?

4. ―A statement made in performance of duty is privileged‖. Explain such statement referring to tort of
demotion.

5. Discuss the ingredients of the tort of defamation. What defences are available in an action for
defamation? Discuss.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 18

 “BULLET NOTES”
Lecture Note- 4

DEFAMATION

 Reputation is a property
 Defamatory Statement
 Statement which tends to injury the reputation of plaintiff.
 Imputation which expose one to disgrace or humiliation
 Such statement may be:
 Oral
 Writing
 By pictures
 By some conduct

 Important points- Defamation

 It is a right in rem- a right against all the world
 It is an injury to the reputation of a person
 A man‘s reputation is his property, more valuable than other property
 It is both criminal offence as well as civil wrong.
 Section 499 of IPC.- Defamation is the wrong done by a person to another reputation by words,
signs or visible representation.
 Types:- Libel and Slander
 Case: Eastwood vs. Homes
―All lawyers are thieves‖
No liable as not pointing to a particular lawyer.

Reputation is not what he thinks of himself but what others think of him. If the behaviour of others in
society changes due to the defamatory remarks made by defendant, then it is Defamation. Effects can be
that the person might lose his present job, may not get another job, forego a delightful marriage, may lose
friends, business, customers.

Reputation is an inherent personal right which every Individual has a right to preserve and maintain. It is
a jus in rem- a right enforceable against all other persons. Reputation is a Personal property which no
man can be allowed to interfere with.

Defamation means to defame a person

- Attacks or injures the reputation
- Makes a false statement to his discredit
- Injury to his own reputation including his wife, son, dependents if the injury suffered has a direct
bearing on the reputation.
- Make the society shun or avoid that person.

Defamation is both a civil & criminal wrong.

The law of defamation balances the interests (Reputation vs. Freedom of speech) Act 19(1) (a) 19(2).
Defamation is a restriction.

Dixon vs. Holden- Reputation is more valuable than any other property. If reputation is lost, everything
is lost. Statement made should be without reasonable excuse – a case of defamation will be maintainable.

Difference between libel and slander

Libel is representation made in some permanent form, e.g., writing, pictures, effigy or statue.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 19

 “BULLET NOTES”
Slander is the publication of defamatory statement in transient form. Example- Spoken by words or
gestures.

Essentials of Defamation:-
(1) Statement was false and defamatory
To determine this it is to be seen that whether the words, tend to lower the plaintiff in the estimation of
right thinking members of the society generally. A reasonable man is one whose values are shared, is
fair-minded. To see the ordinary and natural meaning of the words which may be assigned by ordinary
men at the first reading and not on later analysis.

If the statement exposes a person to hatred, contempt, ridicule, injures his profession or trade, the
statement will be defamatory.

Statement can be false and defamatory-person liable for defamation.

Statements can be false but not defamatory- no defamation but malice will be seen on the part of
defendant.
Statements can be defamatory but not false- No defamation.

In this case malice is also assumed. Malicious statement means that the statement or publication without
just cause or excuse. Motive is irrelevant but malice is essential to calculate damages. If no malice, no
defamation.

South Indian Co. vs. Ramakrishna

Railway guard – checking tickets – ―I suspect you are travelling with a wrong or false ticket‖. The
statement was false as the ticket was in progress. The court held, statement was bonafide and no
defamation.

D. P Chaudhary vs. Kumari Manjulata

News published with unfair comments and false imputations that 17-year old ran away with a boy. News
not based on correct facts. Girl‘s reputation had suffered. This was actionable per se.
Hence the case was Maintainable.

No action for mere insult. But if it causes ridicule and humiliation, it is actionable.

Innuendo – Statement may prime facie be innocent (natural and ordinary meaning is not defamatory) but
latent or secondary meaning may be defamatory. Burden of proof on plaintiff to prove that the latent
meaning is defamatory.

e.g., X published that Mrs. Y had given birth to a child. It is not defamatory. But defamatory when Mrs.
Y pleads that she was married 2 months ago.

According to English law, Knowledge or intention to defame is not necessary.

Cassidy vs. Daily Minor- Intention or motive immaterial for liability for defamation.

T.V Rama Subba Iyer vs. Alimad Mohideen case.

Intention not there, therefore no defamation, no liability where statements published innocently.

(2) It must be published

Statement must be published.
What is publication?

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 20

 “BULLET NOTES”
It is communication of the words to at least one person other than the person defamed. e.g. through letter,
pamphlet, cardboard, books, caricature, TV, photograph, tape recorded cassette, telegram, postcard etc.
communication to plaintiff himself not enough because it is no injury to reputation.

No Publication Yes Publication

If a third person reads it wrongfully. If the letter is likely to be read by someone (eg.,
Husband and wife one person. Defamatory clerk)
matter from H to W- no publication T.J Postcard, telegram
Ponnen vs. M. C. Verghese. Communication of a matter defamatory of one
A. Mudaliar vs. A. Mudaliar spouse to other.
(Urdu letter) Defendant had no knowledge that Theaker vs. Richerdso
plaintiff did not know urdu.
Nemi chand vs Khemraj
Printing is no publication.

(3) It must refer to the plaintiff- In every action of defamation, plaintiff must prove that statement
refers to him. Defamation by the name of plaintiff is not necessary. Sufficient if initial letters or first
name or last letters of the name has been mentioned.

Hulton & Co. vs. Jones: The newspaper published a fictional article in their newspaper by which
imputations were cast on the morals of a fictitious person – Artemus. A real person of the same name
brought on action. The defendants were held liable.

Innocent publisher or author can avoid his liability–

1. Published innocently
2. As soon as it gets to know that it is defamatory to plaintiff, offer of amends a (suitable correction and
an apology).

In England and India the position is same.

Defamation of class of persons: Defamation of individual and not class of persons. When the words
refer to a group of individuals or a class of person, no member of that group can sue unless he can prove
that the statement referred to him.

Lawyers are thieves, all doctors are cheats are general statements and doesn‘t affect reputation of single
member, but if statement is like, doctors in Roopnagar are fraud, then case will be maintainable.

Partnership firm can‘t bring a suit as it is not a legal person. Individual Partners may sue.

Defences
1. Justification by truth : It is an Absolute defence in civil law. In criminal law, it is a defence only
when it is made for public good or public benefit. The defence is available even though the
publication was made maliciously (without just cause or excuse.)

Section – 499, Exception 1 IPC

(i) Statement is true (ii) for public good.

Truth is a complete defence. If the statement is false, (and defendant is unable to prove its truth) the
defendant can‘t take the plea that he honestly and reasonable believed it to be true.

Radheysham Tiwari vs. Eknath

Newspaper failed to prove that the statements were true therefore held liable.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 21

 “BULLET NOTES”
2. Fair comment: Fair and bonafide comment

The main essentials are:-

i. It must be a comment
ii. Comment must be fair and honest
iii. On matters of public interest
iv. Comment must not be malicious

3. Privilege statements-
Absolute privilege – no action will lie despite being false, malicious, defamatory.
Qualified privilege: the following conditions need to be satisfied:
1. Statement without malice
2. An occasion for making the statement
3. These are made in discharge of duty or for protection of interest.
This can be availed in fiduciary relationships. Example- Master and servant, husband and wife,
guardian and ward, partners, close friends etc.

Instances of absolute privilege:

Parliamentary proceedings: No action lies for statements made by members of either House of
Parliament in their places in the houses, however, injurious they may be to the interest of a third person.
Article 194(1) and (2) of the Constitution provides the protection.

Reports, etc.- All reports etc. ordered to be published by either house of Parliament or state legislature are
absolutely priviledged.

Judicial proceedings: no action against judges, counsels, witnesses, parties for words in the course of
any proceeding even if malicious. But Remarks by witness totally irrelevant to the case is not privileged.

State Communications/ proceedings : communication relating to state matters, public matters.

REMEDIES
1. DAMAGES
2. INJUNCTION

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 22

 “BULLET NOTES”
PRELIMINARY QUESTIONS

1. Defamation is divided into libel and slander under

(a) English law only
(b) Indian law only
(c) both under English law and Indian law
(d) none of the above.

2. Slander is the publication of a defamatory statement in a

(a) transient form
(b) permanent form
(c) either transient or permanent form
(d) both transient & permanent form.

3. Libel is a publication of a defamatory statement in a

(a) transient form
(b) permanent form
(c) both in transient & permanent form
(d) either transient or permanent form.

4. When the ‗innuendo‘ is proved

(a) the words which are not defamatory in ordinary sense may become defamatory
(b) the words which are defamatory in ordinary sense ―may become non-defamatory s
(c) the words which are not defamatory in ordinary sense shall remain non defamatory
(d) the words which are defamatory in ordinary sense shall remain defamatory.

5. Which is correct?
(a) sending a defamatory letter to a person in a language believed to be known to that person is no
defamation
(b) wrongfully reading of any such letter by a third person is no defamation
(c) both (a) & (b)
(d) neither (a) nor (b).

6. Making fair comment on matters of public interest is

(a) a defence to an action for defamation
(b) no defence to an action for defamation
(c) a partial defence to an action for defamation
(d) none of the above.

7. No action for defamation lies in cases of

(a) absolute privileges
(b) qualified privileges
(c) both (a) & (b)
(d) neither (a) nor (b).

8. Which of the following is correct?

(a) the defence of absolute privilege is available even though the statement is false or malicious
(b) the qualified privilege as a defence is available if the statement is made without malice
(c) the defence of qualified privilege is available if there is an occasion for making the statement
(d) all the above.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 23

 “BULLET NOTES”
Lecture Note- 5

MALICIOUS PROSECUTION

Mains Questions

1. Define Malicious Prosecution. What are it‘s essential ingredients? What plaintiff must prove for
getting success in case of a suit for malicious prosecution? Can a suit for malicious prosecution be
filed against corporation also if yes, in which circumstances?

2. What is malicious prosecution and false imprisonment? What are the remedies against malicious
prosecution and what are the exceptions to it?

3. ―In an action for malicious prosecution, the plaintiff has to prove, first, that he was innocent, and
second, that there was want of reasonable and probable cause.‖ Explain the essentials to be proved in
a suit for damages for malicious prosecution.

4. Defendant Lodged a FIR to Police regarding theft at his shop, naming the plaintiff (servant) being
suspect. After investigation, it was clear that plaintiff has nothing to do with theft. Can Plaintiff
prosecute the defendant for malicious prosecution on the basis of these allegations? Explain with the
help of case law.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 24

 “BULLET NOTES”

Lecture Note- 5

MALICIOUS PROSECUTION

“A prosecution on some charge of crime which is wilful, wanton, or reckless or against the prosecutor
sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates
of public policy.”

 It consists of unsuccessful criminal proceedings against another person.

 A person files a criminal case maliciously and without reasonable and probable cause.
 Redress can be obtained by those who are prosecuted without just cause and with malice.

It is primarily concerned with criminal proceedings.

Essential elements
The plaintiff must prove to bring an action for malicious prosecution–
1. That he was prosecuted by the defendant.
2. That the prosecution was instituted against him without any reasonable or probable cause.
3. Prosecution was instituted with a malicious intention.
4. That the proceedings terminated in favour of the plaintiff.
5. Has suffered damage to his reputation or to the safety of person or to the security of the property.
[West Bengal State Electricity Board v. Dilip Kumar]

1. Prosecution by the defendant

The Plaintiff was prosecuted by the defendant who was the prosecutor.
A prosecutor is a person who is actively instrumental in putting the law in motion for prosecuting
another. [Balbhaddar v Badri Sah]

In Nagendra Nath Ray vs. Basanta Das Bairagya, ILR (1929) 47 Cal 25, a theft was committed in
defendant‘s house. Defendant informed the police and plaintiff was arrested but subsequently discharged.
Suit of malicious prosecution was not maintainable here as mere police proceedings is not a prosecution.

2. Absence of reasonable and probable cause

The defendant will be deemed to have reasonable and probable cause when–
(1) informed the facts.
(2) his allegation to be true.
(3) a prima facie case.
(4) his belief should be based on due enquiry.

The defendant must believe in the probability of guilt but not necessarily the probability of
conviction.
The defendant must believe in the story on which he acts and should act like a reasonable man.

The essence of Reasonable and probable cause should not be presumed from the dismissal of a
prosecution or acquittal of the accused.

Abrath vs. North Eastern Railway

One M recovered compensation from the defendant company for personal injuries in a railway collision.
Subsequently, the railway co. got the information that M‘s injury had been falsely created by Dr. Abrath.
The directors of Railway co. made enquiries and obtained legal advice which suggested that Dr. Abrath
should be prosecuted. Dr. Abrath was prosecuted but acquitted. He brought an action for malicious

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 25

 “BULLET NOTES”
prosecution. The court found that the Railway co. honestly believed in their allegation therefore and not
liable.

3. Malice / Malicious Intention

 Malicious intention has to be proved by the plaintiff.
 Malice to be established is not malice in law but Malice in fact – indicating that the party was
actuated by ill will.
 The most express malice will not give a cause of action if reasonable and probable cause existed.
However absence of reasonable & probable cause is not a per se evidence of Malice.

 If SHO of a police station knowingly concocts a false criminal story against plaintiff and falsely
shows recovery of a weapon from plaintiff‘s house, the prosecution is malicious.

4. Termination of the proceedings in favour of the plaintiff.

The plaintiff does not need judicial determination of his innocence, what is enough is the absence of
judicial decision of his guilt.

There need not be acquittal on merits, it is enough that the prosecution has been discontinued, acquitted
on technicality, conviction has been quashed or accused has been discharged, complaint dismissed for
default.

Even if the plaintiff is convicted by the trial court but the conviction is set aside in appeal, the plaintiff
can sue for malicious prosecution.

When the plaintiff is acquitted of the offence for which he is prosecuted but is convicted of a lesser
offence, he may still sue for malicious prosecution of the grave offence of which he is acquitted.

No action can be bought when the prosecution or proceedings are still pending. In the case of malicious
prosecution, cause of action arises not on the date of institution of proceedings complained of but on the
date when the proceedings terminate in favour of the plaintiff.

5. Damage
It has to be proved that the plaintiff suffered damage as a consequence of the prosecution. Though the
prosecution ends in acquittal, the plaintiff may have suffered damage to his person (deprived of liberty
and mental stress), property and reputation. Aggravated damages are permissible.

The plaintiff can claim for the following damages-

1. Damage to property
2. Damage to reputation
3. Damage to person

Sona Ravi Dutta vs. Debabrata Dutta , the defendant filed a false FIR against the plaintiff and his sister
alleging theft of her earring from her person resulting in bleeding injury to her ear. The defendant knew
that the FIR was false, and the offence being cognizable, the police would handcuff the plaintiff. It was
held that the defendant was liable for malicious prosecution.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 26

 “BULLET NOTES”
PRELIMINARY QUESTIONS

1. Malicious prosecution is a tort intending to protect

(a) Against abuse of legal proceedings.
(b) right of the police to prosecute the criminal.
(c) The accused against police excesses.
(d) The police against civil proceedings against it.

2. Which of the following requirements form an essential element of the tort of malicious prosecution?
1. Prosecution of the plaintiff by the defendant
2. Termination of the case in favour of the defendant
3. Termination of the case in favour of the plaintiff.
4. Presence of reasonable and probable cause.
5. Absence of reasonable and probable cause.
6. Damage suffered by the plaintiff.
Select the correct answer using the codes given below
Codes:
(a) 1, 3, 5, 6
(b) 1, 2, 4, 6
(c) 1, 3, 4, 6
(d) 1, 2, 5, 6

3. In a suit for malicious prosecution which one of the following is not an essential element?
(a) The plaintiff was prosecuted by the defendant.
(b) The prosecution ended in favour of the plaintiff after exhausting all the steps of judicial process.
(c) The prosecution was malicious.
(d) The prosecution resulted in damages to the plaintiff.

4. Mark the incorrect statement:

(a) Prosecution should be made by the defendant.
(b) A prosecutor is a person who is actively instrumental in putting the law in force for prosecuting
another
(c) An act of giving information (viz. to the police) on the strength of which a prosecution is
commenced is akin to instigating a prosecution.
(d) In order that a private person can be termed as ‗prosecutor‘ he must‘ve done something more
than merely lodging the complaint with the police.

5. ―In any country, as in India, prosecution is not private, an action for malicious prosecution in the
most literal sense of the word could not be raised against individual. But giving information to the
authorities which naturally leads to prosecution is just the same and if that is done and trouble caused
an action will lie.‖ The above observation was made in ‗
(a) Pandit Gaya Pershad Tewari v Sardar Bhagat Singh
(b) Balbhaddarv Badri Shah.
(c) Periyar Goundan v Kuppa Goundan.
(d) Nagendra Nath Ray v Basanta Das.

6. ‗X‘ "a servant of ‗Y‘ lodged a criminal report against ‗Z‘ that the was present at the site where ‗A‘
was brutally assaulted and that ‗Z‘ also instigated the assault. ‗X‘ did so at the instance of ‗Y‘. ‗Z.‘ is
prosecuted and ultimately; acquitted. In a suit for malicious prosecution by ‗Z‘ against ‗Y‘ ‗
(a) Y would not be liable because he did not prosecute
(b) Y would not be liable because the report was lodged by4X and not by
(c) Y would be liable because in law, it would be said that Y initiated the proceedings.
(d) Y would be liable because it was his motive to harass

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 27

 “BULLET NOTES”
7. For the success of an action for malicious prosecution, it is necessary that
(a) The criminal prosecution was filed without a reasonable and probable cause, and maliciously.
(b) The criminal prosecution was launched maliciously.
(c) The criminal prosecution was launched with bad motive.
(d) The criminal prosecution was launched non-seriously. '

8. Mark the incorrect statement:

(a) Absence of reasonable and probable cause and existence of malice have to be separately proved.
(b) From a want of reasonable and probable causes, a court may infer malice, but not be contra.
(c) The absence of reasonable and probable cause is per se evidence of malice.
(d) The most express malice will not give a cause of action if reasonable and probable cause existed.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 28

 “BULLET NOTES”
Lecture Note- 6

NUISANCE

Mains Questions

1. Discuss the exception to the rule contained in maxim ‗Actio personalis moritur cum persona‘.

2. Distinguish between the Public nuisance and Private nuisance.

3. How far lack of care is a relevant factor in determining liability under an action of nuisance?

4. ―Public nuisance is a crime whereas private nuisance is a civil wrong.‖ Explain.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 29

 “BULLET NOTES”
Lecture Note- 6

NUISANCE

Nuisance
 Law as to Nuisance is law as to relationship b/w neighbors.
 Nuisance means annoyance.
 It is derived from the French word ‗nuire‘ which means to hurt, or to annoy or that which is
offensive.
 Acts interfering with the comfort, health, and safety are the examples of it.

Nuisance is an act, omission, injury, damage, annoyance or offence to sense of sight, smell, hearing, or
which may be dangerous or injurious to health or property.

Winfield defined nuisance as unlawful interference with a person‘s use or enjoyment of land or of some
right over or in connection with it.

Difference between trespass and nuisance.

The similarity between the two is that in order to claim damages the plaintiff need to prove possession of
property.

Trespass Nuisance
1. Direct interference e.g., Planting a tree on 1. Indirect interference e.g., planting a tree on
neighbours land. your land but branches project into or over
the land of other, to allow stones from a
2. Interference with person‘s possession of land. running chimney to fall on neighbour land.
2. Act interfering with health, comfort and
safety. It is interference with use or
enjoyment of possession e.g., by creating a
3. Trespass is always by some tangible object. lot of noise on his own land.
3. Intangible also like – gas, smoke, vibrations
4. Actionable per se. etc.
4. Damage must be proved.

Nuisance is of two types-

 public or common nuisance; and
 private nuisance
- Public nuisance is crime whereas a private nuisance is a civil wrong.
- Public nuisance is interference with the rights of the public in general and is punishable as an
offence and private nuisance affects only one person or determinate body of persons.
- These are separate torts as they involve different type of rights.
- Similarity is that they both cause inconvenience or annoyance by the conduct.
- No mens rea is required for Public Nuisance. Malice is important for private nuisance.
- Public nuisance is both offence and torts i.e. civil wrong, but private nuisance is a civil wrong
and not an offence.

Public Nuisance & Indian Law

Section 268 of IPC. Procedure is laid down in section 133-143 of Cr PC
To have a private right of action under section 268 following need to be proved:–
(1) Suffered particular injury beyond what is suffered by the rest of public.
(2) Such injury is direct and particular and not consequential.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 30

 “BULLET NOTES”
(3) Injury is of substantial character.

Ratlam Municipality vs. Vardichand

Residents of a locality were tormented by foulness caused by open drains and public excretion and by
discharge of obnoxious water into a public street by a govt. alcohol plant. The magistrate under Section
133 Cr PC directed the Municipality to do its duty. The court ordered to take immediate steps to stop
nuisance. It directed the State Government to stop pollution.

Article 47, 38, Principles of public welfare

Section 123 Municipalities Act – These point to the duty of the authorities to remove public Nuisance.

L. R Kolwal vs. State of Rajasthan

Cleaning of public streets and sanitation are the primary duties of Municipality which it is bound to
perform. The paucity of funds or staff is no ground for its non-performance.

Soltau vs. De Held – Church Bell case

De Held was the priest of Roman Catholic chapel (a room used for Christian worship). The Chapel‘s bell
rung at all hours of day and night. The plaintiff Soltau resided next door to the chapel. All the people
were annoyed. This was the case of Public Nuisance but for plaintiff it was Private Nuisance, therefore
injunction was granted by the court to the plaintiff.

Section – 91 CPC relates with Public Nuisance.

Where no special damage to the plaintiff, no civil suit can be filed.

Winter bottom vs. Lord Derby, A public footway was blocked by the defendant. The plaintiff was
annoyed because sometimes he had to go by another route and sometimes he incurred expenditure in
removing the obstruction. The court held it was a case of Public Nuisance and not private as he did
not suffer any special damage.

Private Nuisance or Tort of Nuisance

Its Essentials:
1. Unreasonable interference;
2. Interference with the use or enjoyment of land;
3. Damages.

(1) Unreasonable interference:-

Interference may cause –
(i) Damage to the plaintiff property.
(ii) Personal discomfort to the plaintiff in the enjoyment of property.

Every interference is not nuisance

Facts and circumstances will decide whether any nuisance is interference or not e.g., having a house on
roadside must put up with such inconvenience which is incidental to traffic. e.g., running a flour mill in a
residential area will amount to nuisance. [Radhey Shyam vs. Gur Prasad]

Usha Ben vs. Bhagya Laxmi Chitra Mandir, It was contended by the plaintiff that exhibition of the film,
Jai Santoshi Maa hurt their religious feelings as Goddesses are depicted as jealous. It was held that hurt
of feelings is not an actionable wrong and plaintiff were free not to see the movie.

The test of reasonableness is according to the ordinary usages of mankind living in society. An act which
is otherwise reasonable does not become unreasonable and actionable due to the sensitiveness of the
plaintiff. If certain kind of traffic is no nuisance for a healthy man, it will not entitle a sick man to bring
an action, even though the damage is substantial.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 31

 “BULLET NOTES”
(2) Interference with the use or enjoyment of land:-
Interference may cause either injury to the property itself or injury to comfort or health of occupants of
certain property. E.g., allowing branches of a tree to overhang on the land of other person, escape of
water, gas, smoke or fumes, vibrations.

Substantial interference with comfort and convenience in using the premises is also actionable as a
nuisance.

Disturbance of neighbour throughout the night by the noises of horses in a building converted into stable
was a nuisance.

In Noble vs. Harrison: branch was overhanging on a highway, therefore no nuisance.

(3) Damages:-Actual damage is required to be proved. In case of public nuisance, plaintiff has to prove
special damage to himself.

Defences:
Effectual Defences
1. Prescription- If a right is peacefully and openly enjoyed as an easement and as of right without
interruption and for 20 years, such right can be acquired as an easement. [Case: Sturge v Bridgman]

2. Statutory Authority- An act done under the authority of a statute is a complete defence. A railway
company authorize to run railway trains on a track is not liable if, in spite of due care, the spark from the
engine set fire to the adjoining property, or the value of adjoining property is depreciated by the noise,
vibration and smoke by the running trains, Vaughan v. Taff Vale Rly, (1860) 5 HN 679.

Ineffectual defences:
1. Nuisance due to act of others
2. Public good
3. Reasonable care
4. Plaintiff coming to nuisance

Who can sue in Public Nuisance?

Section 91 CPC says-
Advocate General or 2 or more persons having obtained the consent in writing of court may institute such
suit though no special damage caused for a declaration and injunction or other relief.
Only if personal damage to Public – then case maintainable under Torts.

Continuous Interference- Nuisance is generally a continuous wrong. It must not be momentary but it can
be temporary. A constant noise, smell, vibration is nuisance and ordinarily an isolated act of escape of
noise can‘t be nuisance, e.g., isolated act of hitting cricket ball on road. Plaintiff on highway was injured
by a ball hit from defendant ground. Stone vs. Bolton

But in the case of Dollman v. Hillman, (1941)

The defendant was held liable for the isolated act when the plaintiff slipped on a piece of fat lying outside
the defendant‘s butchers shop, in nuisance and negligence.

Remedies:
1. Abatement of nuisance
2. Damages
3. Injunction

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 32

 “BULLET NOTES”
PRELIMINARY QUESTIONS

1. The word ‗nuisance‘ is derived from the word nuire (to do hurt, to annoy), which is a
(a) Latin word
(b) French word;
(c) Greek word,
(d) Roman word.

2. Nuisance is of two kinds:

(a) Public and common nuisance.
(b) Public and private nuisance.
(c) Public or common nuisance and private nuisance
(d) Public and private or common nuisance.

3. Public nuisance
(a) Materially affects the reasonable comfort and convenience of life of a class of subjects who
come within the sphere or neighbourhood of its operation.
(b) ‗affects life of a class of subjects who come within the sphere or neighbourhood of its
operation.
(c) affects a person who comes within the neighbourhood of its operation.
(d) is described as unlawful interference with a person‘s use or enjoyment of land or some right
over connection with it.

4. In private nuisance
(a) Interference causing damage to other‘s property or causing personal discomfort to the others
in the enjoyment of property is essential.
(b) Every interference is not nuisance.
(c) Every individual living in society has to tolerate interference to some extent
(d) All the above statements are correct.

5. Mark the incorrect answer:

(a) Interference with the enjoyment of land means injury to the property itself
(b) Interference with the enjoyment of land means injury to comfort of occupants of certain
property
(c) Interference with the enjoyment of land means injury to the person related with land.
(d) Both (a) and (b) are correct.

6. In nuisance, a defendant is liable to ‗unusually sensitive plaintiff

(a) Only in personal injury cases.
(b) Only in property injury cases.
(c) Both personal injury and property injury cases.
(d) None of the above.

7. For an action of nuisance, the defendant can put up the following defences
I. The place is suitable for the purpose.
II. It is for the benefit of the residents of the locality.
III. It is done under statutory authority.
IV. The plaintiff has consented to the act.
Of the above statements
(a) I, II and III are correct.
(b) II, III and IV are correct.
(c) I, III and IV are correct
(d) III and IV -are correct

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 33

 “BULLET NOTES”
Lecture Note- 7

TRESPASS

MAINS QUESTION

1. Define Trespass?

2. What is assault, battery and false imprisonment? How they are different from each other?

3. Difference between assault and battery, Personal injury and a crime.

4. A points an unloaded pistol at B, who sues him for an assault. A in his defence pleads
that pistol was unloaded. How will you decide? Give reasons to support your answer.

5. What are the remedies for the Trespass? Define it with the defences to Trespass with
certain case laws?

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 34

 “BULLET NOTES”
Lecture Note- 7

TRESPASS

Trespass is a Transgression or offence against a man‘s person or his property.

Types of Trespass:-
(1) Trespass to person
(2) Trespass to Land.
(3) Trespass to Goods or Chattels

Rules of trespass–
1. The defendant, to plead and prove justification and not for the plaintiff to prove that the conduct was
unreasonable.
2. Damage is not an essential element and need not be proved by the plaintiff.

Trespass to persons

ASSAULT BATTERY FALSE

 Some act of defendant, which Intentional & direct application IMPRISONMENT
makes the plaintiff feel that the of force on another person w/o Restraint on someone
battery is about to be applied. lawful justification liberty without lawful
 Apparent threat to do  Minor touching in anger justification.
+ Is Battery  It is a tort and criminal
Present ability and intention to do  The amount of force is offence
it = irrelevant
Assault  Actual contact is compulsory
 Actual contact is not necessary  Passive obstruction by
e.g. Showing clenched Fist = putting doors or wall is not a
Assault using it to hit = Battery use of force
* Normally assaulted precedes  Crime under section 350 IPC
battery but exception exists + civil liability
e.g.- A blow on head from behind
 Assault is crime under Section
351 of IPC

False Imprisonment-
False Imprisonment is-
(1) Imposition of a total restraint
(2) For some period, however short
(3) Upon the liberty of another
(4) Without sufficient lawful justification. False imprisonment is both a crime and a tort.

The detention of a person may be either:

(a) Actual (physical) laying hand
(b) Constructive i.e. by mere show of authority.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 35

 “BULLET NOTES”
(1) Total Restraint
IPC S – 340 In IPC, total and partial restraint both are actionable.
S – 339

In torts, partial restraint is not actionable. Bird vs. Jones

If there are other means of escape the restraint can‘t be termed as total.
Knowledge of a person that he has been imprisoned is not required and a person may be imprisoned
without his knowing eg. While he is asleep, drunk or unconscious.
Merring vs. Grahame White Aviation Co.

An employee suspected of having stolen the company‘s property was called to the company‘s office
and was asked to stay in the waiting room. One or 2 employees remained outside the room. It was
held that the plaintiff detention by the company‘s officers before the police had arrived was wrongful
and amounted to False Imprisonment.

(2) Period of Restraint – No fixed period. False imprisonment can be for even a very short period.
In this case damages will be nominal.
White vs. WP Brown
The Plaintiff an elderly lady who had been detained in a changing cubicle for 15 minutes by store
detectives after she was thought to have stolen a birthday card. Her hand bag had been taken away
and searched. Later she was taken to the police station. Held store detective held liable for false
imprisonment.

(3) Unlawful detention

For False Imprisonment, imprisonment should be without any lawful justification e.g., making false
complaint to the police by defendant leading to arrest of plaintiffs if without any justification, will
make defendant liable for false imprisonment.

 Police to give notification of arrest otherwise false imprisonment.

 When a prisoner‘s jail sentence is over his detention thereafter will result in false imprisonment.
Judicial officer not acting judicially if orders for arrest it will be false imprisonment.

When detention is justified

1. Not allowing a person to go until he pays reasonable charges is no false imprisonment. [Robinson v
Balmain New Ferry Co. Ltd. (1910) AC 295]
2. When there is volenti non fit injuria, [Herd v Weardale, Steel, Coal and Coke Co. Ltd. (1915) AC
67] law permits arrest of a person when offence is committed. Arrest by Magistrate, private persons,
police officer.

John Lewis & Co. vs. Times

The plaintiff and her daughter went to a shop, where the daughter committed theft. Both of them were
detained in the office and were told to wait for managing director‘s decision, where they remained for an
hour. They decided to hand over them to the police. On trial, daughter was found guilty and mother not.
The defendant were sued for false imprisonment but held not liable as the daughter was not detained
beyond a reasonable time for Managing Director to make a decision.

Remedies–
Action for damages:-
General damages usually can be exemplary when the act complained of is oppressive, arbitrary and
unconstitutional.

In trespass, BOP is on defendant. Thus, in false imprisonment, the plaintiff is required to prove that he
was imprisoned by defendant.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 36

 “BULLET NOTES”
Then the defendant has to prove lawful justification.

Plaintiff need not prove any wrongful intention, malice negligence etc. on the part of defendant.
 The principle heads of damage would appear to be injury to liberty, injury to feeling, i.e. the
indignity, mental suffering, disgrace, and humiliation with any attendant loss of social status.

Self help:– A person is authorized to use reasonable force in order to have an escape instead of waiting
for a legal action. S- 100 IPC.

Habeas Corpus: – Article 32/226. It is speedier remedy for procuring the release of a person wrongfully
detained.

BATTERY– Intentional and direct application of force to another person without any lawful
justification. Use of force however trivial is enough Physical hurt need not be there.

Battery requires actual contact. e.g., holding somebody, spitting in the face, throwing over a chair,
throwing water over a person, taking a person by the collar, causing another to be medically examined
against his/her will.

Anything which result in physical injury or personal discomfort will amount to battery. Battery is
actionable per se. harm voluntarily suffered is no battery.
 Friendly touch is not battery.
 Harm which is unintentional or caused by pure accident is not actionable.

ASSAULT:
(1) act of defendant
(2) causes reasonable apprehension to the plaintiff
(3) of the infliction of battery on him by the defendant.

Assault is an unlawful act or a threat to do an act coupled with ability and intention to commit the same.
Actual contract is not necessary- If the fist or the cane is shown from such a distance that the threat
can‘t be executed, there is no assault.

Mere / Verbal threat is no assault. It must create reasonable immediate apprehension in plaintiff‘s mind
that force will be applied

Assault- There must be reasonable apprehension of immediate injury or violence to the plaintiff.
Conditional/Verbal threat is no assault.

Pointing a pistol even if unloaded – assault

If plaintiff knows pistol is unloaded then no assault.
Stephens vs. Myers- interception of a blow aimed at plaintiff by a third person will not absolve the
defendant from liability.

Assault Battery
Infliction/Actual contact not necessary. Necessary
Example- Showing a clenched fist, throwing Actual striking, water falls on him, when he
water, chair pulled and person is in process of touches the ground due to chair pulled by
person falling down. another.

It is not necessary that every battery should include assault.

A blow from behind without prior knowledge amount to battery without being preceded by assault.
Assault – 351

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 37

 “BULLET NOTES”
Battery – 350

Trespass to Land
It is an unjustifiable interference with the possession of land.
It is a wrong against possession rather than ownership.

 In trespass, neither force, nor unlawful intention, nor actual damage, nor the breaching of an
enclosure is necessary.
 Invasion of private property without justification.

Trespass to body – intentional

Trespass to land – non intentional so even if entry is by mistake –liable.
Trespass by
(1) Entering upon the land
(2) By remaining there
(3) By doing an act affecting the sole possession of plaintiff.

Trespass under IPC – Section 441

Trespass ab initio
Enters lawfully but later on abuses the authority. It will be presumed that he entered the premises with
wrongful purpose in mind.
Person is made liable as trespasser ab initio when his wrongful act amounts to Misfeasance (doing a
wrongful act) and not non-feasance (omission to do)

Entry with Licence

To enter certain premises with the consent of the person in possession amounts to licence. Once licence is
revoked, the person must quit the place within reasonable time. If he does not, he becomes a trespasser.

Trespass to Goods
Means direct wrongful interference with the plaintiff possession of goods.
 By seizure
 Removal
 By direct act causing damage

Example,- removing tyres from cycle or car, destroying or injuring goods beating or killing the animals,
infecting them with a disease, chasing them to run away or killing them by poisoned meat.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 38

 “BULLET NOTES”

PRELIMINARY QUESTION

1. Direct interference in the possession of land without lawful justification is called

(a) nuisance
(b) trespass
(c) negligence
(d) all the above.

2. Action of trespass can be brought by a person

(a) in possession who is also the owner
(b) in possession even if he is not the owner
(c) not in possession
(d) both (a) and (b).

3. Direct and wrongful interference with the plaintiff‘s possession of Goods is known as-
(a) Defamation
(b) Trespass to person
(c) Trespass to goods
(d) None of the above

4. Which of the following is a form of trespass to persons?

(a) Assault
(b) Battery
(c) Mayhem
(d) All of the above

5. An act by the defendant that causes the claimant reasonable apprehension of infliction of
intentional and direct application of force on him is:
(a) Assault
(b) Battery
(c) Mayhem
(d) False imprisonment

6. A points an unloaded pistol towards B. will A be liable for assault?

(a) Yes
(b) No
(c) Partly yes
(d) None

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 39

 “BULLET NOTES”

Lecture Note- 9

NEGLIGENCE

MAINS QUESTION

1. (a) Point out the essentials of negligence as a specific tort.

(b) A, is firing crackers during Deepawali, One cracker strikes B, who was standing nearby and
causes injury to his eye. Discuss the liability of A towards B.

2. Define Medical Negligence?

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 40

 “BULLET NOTES”

Lecture Note- 9

NEGLIGENCE

What is Negligence?

Is it an unintentional tort or intentional tort?

The Apex Court in Jacob Mathew v. State of Punjab, observed:
Negligence is the breach of a duty caused by the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do.

Actionable negligence consist in the neglect of the use of ordinary care or skill towards a person to
whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has
suffered injury to his person or property.

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former‘s conduct within the scope of the duty;
(2) breach of the said duty;
(3) consequential damage.

Negligence has two meanings in law of torts:

(1) Negligence as a mode of committing certain torts, e.g. negligently or carelessly committing
trespass, nuisance or defamation. In this context, it denotes the mental element.
(2) Negligence is considered as a separate tort. It means a conduct which creates a risk of causing
damage, rather than a state of mind.

1. Barnett vs. Packer & Co. (a piece of wire in sweets---- causes injury)
Court held the defendant were liable for causing negligence.

2. Austin vs. Great Western Railway, (1867)- A lady took ticket for herself but not for her 3 years old
child. Railway accident 3 years old died young. Railway company were held liable because any
passenger who has been injured by the negligence of a railway COMPANY can sue them in tort, if
they have invited or knowingly permitted him to enter the train, whether or not there is also a
contract for carriage between him and the Railway company. Thus it was entitled to recover damages
from the Railway Company, for he had been accepted as a passenger.

Duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty.
The plaintiff has to establish that the defendant owed to him a specific legal duty to take care, of which
he has made a breach.

Duty depends on reasonable foreseeability of injury i.e. reasonable likelihood of injury, held in
Rural Transport Service v. Bezlum Bibi, AIR 1980 Cal. 165

In Sushma Mitra v. Madhya Pradesh State Road Transport Corp., the plaintiff was travelling in a bus
belonging to the Madhya Pradesh 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

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 41

 “BULLET NOTES”
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. The presumption of negligence was raised against the drivers of the
bus as well as the truck. They failed to rebut this presumption of negligence. The defendants were,
therefore, held liable.

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. In Pardon v. Harcourt
Rivington, the defendant parked his car by the road side and left a dog inside the car. (The dog jumped,
about and smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking
past the car. It was held that the accident, being very unlikely, there was no negligence in not taking a
precaution against it and, therefore, the defendant was not liable.

Breach of duty
Breach of duty means non-observance of due care which is required in -a particular situation.
What is the standard of care required? The standard is that of a reasonable man or of an ordinarily
prudent man.

If the defendant has acted like a reasonably prudent man, there is no negligence. As stated by Alderson B.
in Blyth v. Birmingham Waterworks Co., ―Negligence is the omission to do something which a-
reasonable man, guided upon those considerations which ordinarily regulate the conduct of human
affairs, would do or doing something which a prudent and reasonable man would not do.

Standard of care required

The law requires taking of two points into consideration to determine the standard of care required:
(a) the importance of the object to be attained,
(b) the magnitude of the risk,
(c) the amount of consideration for which services, etc. are offered.

Proof of Negligence: Res Ipsa Loquitur i.e. things speaks it self

In Municipal Corporation of Delhi v. Subhagwanti held, that the fall of clock tower is tells its own
story. It is raising an inferences of negligence on the part of the defendant, The structure was 80 years old
whereas its normal life was 40-45 years. The Municipal Corporation of Delhi, which was having control
of the structure had obviously failed to get the periodical check up and the necessary repairs done. The
Court further held corporation guilty of negligence for not subsisting the clock tower to careful &
systematic inspection which it was the duty of the corporation.

Since the defendants could not prove absence of negligence on their part, they were held liable.
"The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff by not requiring him to
prove negligence. When the accident is more consistent with the negligence of the defendant than with
any other cause and the facts are not known to the plaintiff but or ought to be known to_ the-defendant,
the doctrine applies.

Defances to negligence
 Vis major (act of god)
 Inevitable accident
 Contributory negligence of the plaintiff
 Volenti non- fit injuria ( defense of consent)

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 42

 “BULLET NOTES”

 Express contract
 Judicial acts executive act & statutory authority

Medical Negligence
Doctor‟s duty of care
When a medical practitioner attends to his patient, he owes him the following duties of care:
1. A duty of care in deciding whether to undertake the case;
2. A duty of care in deciding what treatment to give;
3. A duty of care in the administration of the treatment.

1. In Phillips India Ltd. vs. Kunjn Punnu, AIR 1975 Bom 306
In an action for negligence against a doctor, the plaintiff has to prove 3 things:-
1. That the doctor was under a duty to take reasonable care towards the plaintiff, to avoid the
damage complained of or not to cause damages to the patient by failure to use reasonable care
2. That there was a breach of such duty on the part of the doctor
3. That such breach of duty was the real cause of the damages complained of.
4. Such damage was reasonably foreseeable.

2. P. Narsimha Rao vs. Gundavarapu Jayaprakash

Irreparable brain damage to owner - Vicarious liability and negligence of surgeon and Anesthetist.

6. Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1

A surgeon cannot and does not guarantee that the result of surgery would invariably be
beneficial, much less to extent of 100% for the person operated on. Only assurance which such a
professional can give is that he is possessed of requisite skill in that branch of profession which
he is practicing and while undertaking the performance of the task entrusted to him he would be
exercising his skill with reasonable competence.

7. Indian Medical Association vs. V.P Shantha

A three judge bench of the Apex court, dealt with how a profession differs from an occupation?
The approach of the courts is to require that professional men should possess a certain minimum
degree of competence and that they should exercise a reasonable care in the discharge of their
duties.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 43

 “BULLET NOTES”
PRELIMINARY QUESTION

1. The test of reasonable foresight in determining the remoteness of damages was first applied in
(a) Re: Polerris
(b) Wagon Mannd case
(c) Doughty v. Turner Manufacturing Co. Ltd.
(d) S.C.M. (United Kingdom) Ltd. v. W.J. Whittal & Sons.

2. In Donghue v. Stevenson, the duty of manufacturer was stated to be

(a) towards retailer only
(b) towards the buyer from retailer
(c) towards ultimate consumer
(d) none of the above.

3. The maxim ‗res-ipsa loquitur‘ means

(a) the things do not speak for itself
(b) the things speaks for itself
(c) the things have to be proved beyond doubt
(d) the burden of proving the things always remain on the plaintiff.

4. The maxim ‗res-ipsa loquitur'

(a) rule of law
(b) rule of procedure
(c) rule of evidence
(d) rule of negligence.

5. The doctrine ‗res-ipsa loquitur‘ is a

(a) shifts the burden of proving negligence on the plaintiff
(b) disproves the negligence on the defendant
(c) does not shift the burden of disproving the negligence on the defendant
(d) both (a) & (c).

6. The doctrine ‗res-ipsa loquitur‘ was applied by the Supreme Court in

(a) Alka v. Union of India
(b) Asa Ram v. Municipal Corporation of Delhi
(c) Municipal Corporation of Delhi v. Subhagwanti
(d) Jasbir Kaur v. State of Punjab.

7. In case when two persons are negligent and one of them who had the later opportunity of
avoiding the accident by taking ordinary care, should be liable for the loss—the rule is named as
(a) res ipsa loquitur
(b) last opportunity or last chance rule
(c) rule of superior‘s responsibility
(d) rule of alternative danger.

8. Last opportunity rule is

(a) an exception to contributory negligence
(b) a modification to contributory negligence
(c) an alternative to contributory negligence
(d) supplements contributory negligence.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 44

 “BULLET NOTES”
9. The doctrine of apportionment of damages in cases of contributory negligence is
(a) applicable in India
(b) applicable in England
(c) applicable in India and England both
(d) neither applicable in India nor in England.

10. When the negligence of two or more persons result in the same damage, it is said to be a case of
(a) single negligence
(b) contributory negligence
(c) composite negligence
(d) either (a) or (b) or (c).

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 45

 “BULLET NOTES”
Lecture Note- 10

NO FAULT LIABILITY

MAINS QUESTION

1. Differentiate between strict and absolute liability?

2. Absolute liability overruled strict liability in the case M.C.Mehta v. UOI. Explain.

3. Describe the passing of Public liability Insurance, and its purposes with the help of decided case
viz. Bhopal gas leak disaster and Shri Ram Gas leak tragedy case?

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 46

 “BULLET NOTES”
Lecture Note- 10

NO FAULT LIABILITY

STRICT LIABILITY AND ABSOLUTE LIABILITY

General rule:-
Tortious liability is fixed – when there is negligence and intention.
Exception to the General Rule – Absolute liability and Strict liability

(No Fault liability)

Even if the person is not negligent nor has intention to do a wrong, he will be held responsible.
The principle of strict liability was laid down in Rylands vs. Fletcher. The principle of Absolute liability
was laid down in M.C. Mehta vs. Union of India.

The principle is based on the maxim

“Sic utere tuo et alienum non laedas” (Use your own property as not to injure the property of your
neighbor).

The Maxim is not clear about natural / non natural use of land. Strict liability operates only in non natural
use of land.

Rylands vs. Fletcher, (1868) LR 3 HL 330

The facts of the case are as follows:
Defendant employed independent contractors – to construct a reservoir – contractors found shaft and
passage mines workings on land – failed to seal – filled the reservoir – water flooded through the shafts
into plaintiff‘s mines.

The defendant cannot be held liable for -

Nuisance – not continuous but a single act only
Trespass – indirect interference in this case.
Negligence – was not recognized at that time as an independent tort.

The defendant was held liable for strict liability as water stored in such quantity was held to be a non
natural use of land.

The person will be liable for things which escape due to the default of his servant or independent
contractor except a stranger.

Essential Ingredients:-
(1) Non natural use of land
(2) Dangerous thing / goods on land
(3) Escape

(1) Dangerous thing / goods – which creates mischief if it escapes. eg. water, gas, electricity, vibrations.
The defendant has brought, introduced, kept or collected something on his property which was not
naturally there. Example, animate objects (living animals), inanimate objects (non living like rocks,
chairs, books.)

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 47

 “BULLET NOTES”
The thing is not naturally on land but brought by artificial devices. Example, large body of water, gas,
fire, fireworks, heaps of soil, oil, dangerous animals, beasts, trees dangerous to cattles.

Madappa case AIR 1964

(2) Non natural use of land:- Non ordinary use of land or it means creation of unreasonable, abnormal
and excess risk in using land. Special use of a thing that brings danger to others.
Example, increased danger to public – 20-25 gas cylinders in a residential area, growing of poisonous
trees.

Noble vs. Harrison,

TC Balakrishnan menon vs. TR Subramaniam, AIR 1968- held, that the use of explosives in a maidan
even on a day of festival is a non-natural use of land.

Whether use is natural or non natural depends on practices prevailing in society. Example, non natural to
keep a car with petrol in its tank in a garage.

Natural uses: Water installation in a house domestic fire, growing trees, gas pipes, electric wiring etc.,
irrigation purpose.

(3) Escape: Thing must escape to the area outside the occupation and control of the defendant. eg.,
poisonous trees reach the plaintiff‘s land when consumed by cattle, the defendant will be liable.

Rule of Absolute liability promotes principle of social utility and public policy.

Exceptions to the Rule of Strict Liability

(1) Statutory Authority: When damage is the consequence of an act done for public purpose in the
discharge of a public duty under the express authority of a statute.

The person will be responsible if done negligently.

Green vs. Chelsea Waterworks Co.,

(2) Natural use of land – tree on my land falls on your car. I won‘t be liable. (Noble vs. Harrison)
Common benefit: Injury is caused to the plaintiff from a thing which is maintained in the premises
for the common benefit of both.

Carstairs vs. Taylor: Water from upper storey to lower storey.

(3) Act of God : Nichols vs. Marshland

(4) Wrongful Act of 3rd Party: 3rd party on whom the defendant had no control.
Box vs. Jubb,– A malicious third person blocked up the waste pipe of a lavatory basin on A‘s
premises. The water overflowed and flooded.

(5) Plaintiff own fault: when the thing escapes due to plaintiff fault.

Ponting vs. Noakes:

A has poisonous tree on his land. B‘s horse intruded into A‘s land and died after eating the leaves of the
tree. Held, A was not liable, B‘s own fault.

(6) Consent of the plaintiff: Volenti non fit injuria eg., in high rise apartments, water is stored in tanks
for common use of tenants. The defendant will not be liable for any leakage if not negligent.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 48

 “BULLET NOTES”
Applicability of Ryland‘s Rule in India with some modifications, under MVA, liability of owner or
insurer of the vehicle without proof of negligence, (No Fault Liability).

Indian Railways Act – Railways liable

Carriers Act – Carriers liable

The Plaintiff fault is not the only cause of escape but also his failure to discover or avoid the danger, this
would result in reduction of damages.

Commercialization is increasing which is why SC preferred Rule of Absolute liability over Rule of strict
Liability which is suitable to the social and economic conditions in India. It was evolved in the case M.C
Mehta vs. UOI.

The rule has no exceptions as no intention to immune those who had established hazardous industries in
and around thickly populated areas.

As according to Rylands vs. Fletcher Rule, if there is escape of the substance causing damage due to the
act of a Stanger, due to sabotage, there is no liability.

In M.C. Mehta case, on 4th December, 1985 a major leakage of Oleum gas took place from one of the
units of Shriram food & fertilizers Ind. and this affected a large no. of persons including workman and
public at large.

Measure of Liability: For the industries which are engaged in hazardous or inherently dangerously
industry, if by accident persons die or get injured the industry will be responsible even if highest
standards of safety are observed and there was no negligence on their part.

The reasons given by the court for not having any exception to the Rule of absolute liability-
(1) The enterprise carrying such hazardous and inherently dangerous activity for private. Profit has a
social obligation to compensate

(2) The enterprise alone has the resources to discover and guard against such hazards & danger. The
court also said that the measure of compensation should be correlated to the magnitude and capacity
of the enterprise so that it can have deterrent effect.

Strict Absolute
1. Condition – 3 conditions It deals with dangerous things
2. Escape from premises – Does not It covers those which are within or outside the
cover those who are within the premises premises.
3. Liability – many exceptions Stricter than strict liability
4. Exception – many None
5. Damages – ordinary / Compensatory Exemplary damages

Bhopal Gas Leak Disaster and Shriram Gas Leak Tragedy provided an impetus for the passing of
public liability insurance. The Act provides for mandatory insurance for the purpose of providing an
immediate relief to the persons affected by accidents occurring while handling any hazardous substance.
The Act covers every industry whether public or private, which handles hazardous substances. The act
incorporates the no- fault liability standard.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 49

 “BULLET NOTES”
PRELIMINARY QUESTION

1. The rule of ‗strict liability‘ implies

(a) No-fault liability i.e. the fault or negligence of the guilty party is immaterial.
(b) Liability based on fault.
(c) State liability.
(d) Absolute liability.

2. The rule of ‗absolute liability‘ implies

(a) Strict liability.
(b) Stricter than strict liability.
(c) State liability.
(d) None of the above.

3. The rationale of absolute liability is that the undertakers of hazardous activities have to pay
(a) if they are at fault.
(b) Partially even if they are not at fault
(c) Regardless of any fault on their part.
(d) If they have not taken reasonable care.

4. A person who, for his own purposes, brings on his land and collects and keeps there anything
likely to do mischief if it escapes must keep it in at his peril an if he does not do so, is prima facie
answerable for all the damage. Which is the natural consequence of its escape. The above rule
was enunciated in
(a). Nicholas v Marsland.
(b) Donoghue v Stevenson.
(c) Rylands v Fletcher.
(d) None of the above.

5. The rule of strict liability was laid down in Rylands v Fletcher by

(a) Blackburn, J. in 1868.
(b) Lord Atkin in 1635.
(c) Winfield in 1765.
(d) Holt, C J. in 1868.

6. To bring the case within the ambit of strict liability, the following are necessary
(a) Some dangerous thing must have been brought by a person on his land
(b) The thing brought by a person on his land must escape.
(c) It must be non-natural use of land.
(d) all of the above.

7. The rule in Rylands v Fletcher is not applicable

(a) When the escape is due to the plaintiff‘s own default. '
(b) When the escape is due to an act of God. '
(c) When the damage is, due to
(d) In all the above cases.

8. The rule in Rylands v Fletcher does not apply when the escape is due to
(a) Inevitable accident.
(b) Vis Major.
(c) Negligence of the defendant.
(d) Mistake.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 50

 “BULLET NOTES”
9. Consider the following statements:
I. A circus company keeps wild animals and tames them. One of them escapes and causes
injury to a spectator. Company is not liable.
II. A person, who brings and keeps any dangerous thing, keeps it at his risk if it escapes and
causes damage he is liable.
Of these statements
(a) Both I and II are true.
(b) Both I and II are ‗false.
(c) I is true but II is false.
(d) I is false but II is true.

10. X hired from Y" the ground floor of a warehouse. The upper floor was occupied by ‗B‘. Water
from the roof collected in a box from which it was discharged by pipes in a drain. A rat gnawed
through the box. Through the hole water escaped into the godown of the ground floor and
damaged ‗X‘s goods. ‗Y‘ was held not liable on the ground that
(a) The escape of water was owing to act of God.
(b) The escape of water was due to plaintiff‘s own default.
(c) The box in which water from the roof collected was maintained for the common benefit of
‗X‘ and ‗Y‘.
(d) None of these.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 51

 “BULLET NOTES”
Lecture Note- 11

VICARIOUS LIABILITY

MAINS QUESTIONS

1. Explain the concept of vicarious liability? [DJS 2008]

2. What is the foundation of vicarious liability under the law of tort? Which are the special relationship
by which this liability is incurred? [UPJS 2000]

3. ‗A master is not responsible for a wrongful act unless it is done in the course of employment‘.
Comment. Explain the circumstances when wrongful acts are deemed to be done ―in the course of
employment‖. Refer to decided cases. [IAS 2009]

4. ―State has to answer for every wrong committed by its erring servant‖. Comment. [IAS 2008]

5. A, the owner of a car, had employed B as driver, to ply the car on hires as a taxi, B had engaged C as
the cleaner of the vehicle. B handed over the car to C for the purpose of taking a driving test to obtain
a licence. C, when driving the car during the test, drove negligently and caused injuries to X, a
pedestrian on the road. B was not present in the car at the time of the accident but was present when
the car was handed over to C for the driving test and had allowed C to drive the car for the test, X,
the injured person, claims damages from A, the owner of the Car. Decide giving reasons whether he
can succeed. [IAS 1970]

6. ‗A master is not responsible for a wrongful act unless it is done in the course of employment‘.
Comment and explain the circumstances when wrongful acts are deemed to be done ―in the course of
employment‖. Refer to decided cases. [IAS 2009]

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 52

 “BULLET NOTES”
Lecture Note- 11

VICARIOUS LIABILITY

General Rule
Exception to the general Rule –
―Vicarious liability‖

In Relationships like –
(1) Principal and Agent
(2) Master and Servant
(3) Partners

Principle of Vicarious Liability is based on 2 principles –

(1) Respondeat superior : the Principal must answer for the acts of the subordinate
(2) qui facit per alium facit per se ―he who acts through another is deemed in law to do it himself‖.

A person may be liable for others wrongful Act and Omissions –

1. Principal and Agent
 When Principal expressly or impliedly authorizes some act to be done, the Principal will be liable.
Lloyd vs. Grace Smith Co., (1912) AC 715

While acting in the ordinary course. A managing clerk of a Company committed fraud against a lady
client. The co. was held liable even if the agent acted solely for his own benefit. State Bank of India vs.
Shyam Devi, AIR 1978 SC 1263, A bank employee received cheques and cash from his friend in his
personal capacity. The bank cannot be made responsible if the employee misappropriates.

2. Partners: Any Partner if commits any tort in the ordinary course of business, all partners will be
responsible to the same extent. The liability of each partner is joint and several.

Section- 25 IPA (joint and several liabilities.)

Section- 26 IPA (liability of the firm to the same extent.)

3. Master and Servant

The servant is also liable. They are joint tort feasors. Their liability is joint and several.

Master‟s liability arises if-

(1) the tort committed by his servant
(2) the servant committed tort while acting in the course of employment

Who is a servant?
 employed by employer
 works under direction and control of master

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 53

 “BULLET NOTES”
Servant Independent Contractor
Contract of service master liable Contract for service, master not liable, (exception
Master directs what is to be done and how strict liability)
things are to be done, example- my car driver Master directs what is to be done but independent
is my servant and for his negligent driving, I contractor is his own master and exercises his own
will be liable. discretion to be done, example- taxi driver is
independent contractor.

Exception to Independent Contractors, example- Doctors, Medical officers are independent contractors
for a hospital, but for their negligent acts, the hospital is responsible.

Qns. When a master lends the service of his servant to another person and if the servant commits a tort,
who will be liable?
 The master or the person who is making temporary use of the services.

Answer: The one who has the power to control the manner will be responsible.

Mersey Dock’s case

Smt. Kunder Kaur case followed the decision of Dock‘s case

Course of Employment- Act falls in this category if master authorized the act
or the authorized act was done in an
unauthorized manner.

When the servants act is altogether different from the authorized act, the act is outside the course of
employment. – Master not liable.
 Beard vs. London General Omnibus, conductor drove the bus‘, Master not liable as driving was not
the kind of act that the conductor was authorized to do.
 If the servant himself negligently delegates his authority – Master liable.
 If the employer forbids the servant from doing an act and the servant does it – Master liable.
(Limpus vs. London General Omission Co.)

Vicarious Liability of State- Article 300 of Constitution- State‘s liability in Indian Law.
English Common Law- king can do no wrong.
But position changed by Crown Proceedings Act, 1947.

Pre Constitution Judicial Decisions (i) Peninsular and Oriental Steam Navigation Company v.
Secretary, Drew distinct line between State‘s sovereign and non-sovereign functions.
(ii) Secretory of State v. Hari Bhanji- Madras High Court ruled that only state acts were immune from
prosecution.

Post Constitution Judicial Decisions (i) State of Rajasthan v. Vidyawati, State has same liability in
tort as any other employer.
(ii) Kasturi Lal v. State of UP,- State is not responsible for torts committed while performing sovereign
functions.

Kasturilal case, still holds good but for practical purposes it‘s force has been considerably reduced by a
number of decisions of the Supreme Court.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 54

 “BULLET NOTES”
PRELIMINARY QUESTIONS

1. Rule of making other‘s liable for wrongful conduct of the other is called:
(a) volenti non fit injuria
(b) joint liability
(c) vicarious liability
(d) plaintiff the wrongdoer

2. Vicarious Liability, may arise in following relationship:

(a) master and servant
(b) owner and independent contractor
(c) guardian and word
(d) all of the above

3. if the employee of the bank take a cheque from a neighbour who is a customer of the bank and
misappropriates it. Will the bank held liable?
(a) Yes
(b) No
(c) Maybe
(d) None of the above

4. If a servant steals goods entrusted to him by his master, will the master be held liable to plaintiff?
(a) Yes
(b) No
(c) Maybe
(d) None of the above

5. Vicarious Liability of the state means:

(a) indirect liability of the state government for wrongful act committed by state government
employees.
(b) Who does an act through another is deemed in law to do it himself
(c) Who does an act through another is not deemed in law to do it himself
(d) Plaintiff the wrongdoer is liable.

211-212, D- 1, 2nd Floor, Virat Bhawan, Mukherjee Nagar, DELHI- 09 55