Iftikar Ahmed Laskar

A.k. chanda law college, batch-2022-2025

Contact- 9707387858
Email 📧 [email protected]

UNIT-III
1. Assault, Battery, False imprisonment
2. Defamation
3. Malicious prosecution
4. Nervous shock, Trespass

Chapter-1

Assault, Battery, False imprisonment

INTRODUCTION

In the realm of tort law, Trespass to person refers to direct, unlawful

interference with an individual’s body or physical freedom. This category
encompasses three key offenses: assault, battery, and false imprisonment.
These torts are designed to protect personal safety, bodily integrity, and
freedom from undue restraint. Assault occurs when someone intentionally
causes another person to fear immediate harm, while battery involves the
actual physical contact or harm. False imprisonment arises when an
individual is unlawfully confined or restricted in movement. Understanding the
distinctions between these torts and their legal implications is crucial for
anyone seeking to navigate the complexities of personal injury law. Each of
these torts allows the injured party to claim damages for the harm suffered.
This article will explore the elements, defense, and legal consequences of
trespass to person, offering a comprehensive guide to these critical legal
concepts.

The evolution of the tort of trespass to a person can be traced back to early
English law, where physical interference received special protection to prevent
individuals from resorting to revenge attacks. Until the 19th century, direct
attacks on a person were safeguarded by the action of trespass, which didn’t
require proof of damage. On the other hand, indirect interference was covered
by the action on the case, necessitating proof of damage.

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In contemporary legal terms, intentional and direct acts of interference still fall
under the tort of trespass, while unintentional and indirect acts are addressed
through the tort of negligence. Despite this general distinction, the legal
landscape is nuanced, and some authorities propose that even in trespass cases,
claimants may need to establish intention or negligence in addition to the act of
interference.

This complexity raises the notion of negligent trespass, which might seem
contradictory but reflects the intricate legal considerations surrounding these
matters.

DEFINITION
Interference, however slight with a person’s elementary civil right to security
of person, and self-determination in relation to his own body, constitutes
trespass to person. Trespass may be done intentionally, deliberately or
negligently. The fundamental principle plain and incontestable law is that every
person’s body is inviolate.
o CLASSIFICATION
1. Assault – Assault is an act of the defendant which causes to the
plaintiff reasonable apprehension of the infliction of a battery on
him by the defendant.
2. Battery– The wrong of battery consists in intentional application
of force to another person without lawful justification.
3. False Imprisonment– False Imprisonment consists in the
imposition of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful justification.
ASSAULT
Assault is nothing, just an apprehension to the infliction of battery or it is an
act prior to battery.
When the defendant by his act creates an apprehension in the mind of plaintiff
that he is going to commit battery against the plaintiff, the wrong of assault is
completed. Pointing a loaded pistol t another is an assault. Is the pistol is not
loaded, and then even it may be an assault, if pointed at such a distance that, if
loaded, it may cause injury. If the plaintiff knows that the pistol is unloaded,
there is no assault.

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There should be prima facie ability to do the harm. E.g. A person moving from
a train can’t be assaulted by a person standing on platform. Similarly mere
verbal threat is no assault unless it creates reasonable apprehension in the
plaintiff’s mind that immediate force will also be used. If a man put his hand
upon sword and said: “if it were not assizes, I would not take such languages
from you”, there was no assault. (Tuberville v. Savdge, (1699) 1 Mod 3: 2
Keble 545; 86 E.R. 684)

In Bavisetti Venkata Surya Rao V. Nandipati Muthayya

The plaintiff was an agriculturist, was in arrears of land revenue amounting to
Rs. 11.60. The village munsif went to the plaintiff’s residence for the collection
of the same. The plaintiff was unable to pay the amount on that day as his wife
had locked the house and gone out for a few days. As it was the last day of the
year for the collection of money so the defendant insisted to pay the amount.
The plaintiff was told due to failure of paying the money, his movable property
would be distrained. Since the plaintiff’s house was locked and no other
movables were readily available, the defendant told him that the earrings which
the plaintiff was wearing would be distrained. The village goldsmith was
called.

On the arrival of the goldsmith, one of the persons present there paid off the
amount due from the plaintiff by borrowing the same from another person. The
defendant then went away quietly. The plaintiff sued the village munsif
alleging that apart from other wrongs, the defendant had committed assault. It
was held that since the defendant, after the arrival of the goldsmith, said
nothing and did nothing and the threat of use of force by the goldsmith to the
plaintiff was too remote a possibility to have put the plaintiff in fear of
immediate or instant violence, there was no assault.

In Stephens v. Myers

The plaintiff was the chairman at a parish meeting, the defendant also sat at the
same table but there were six or seven people between him and the plaintiff. In
the course of some angry discussion, the defendant had been vociferous and he
interrupted the proceedings of the meeting. A very large majority decided that
the defendant be expelled from the meeting. The defendant then advanced
towards the Chairman with a clenched fist saying that he would rather pull the

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Chairman out of the chair than be turned out of the room, but was stopped by
the churchwarden, who sat next but one to the Chairman. He was held liable
for assault.

BATTERY
The wrong of battery consists of the intentional application of force to another
person without any lawful justification. Its essentials are:-
1. There should be a use of force
2. Use of force should be without lawful justification

Use of Force

The wrong is constituted even though the force used is very trivial and does not
cause any harm. Physical hurt is very important for the battery. The least
touching of another in anger is a battery. The use of a stick, bullet, or any other
missile throwing water spitting in a man’s face, or making a person fall by
pulling his chair are examples of use of force. Infliction of heat, light,
electricity, gas, odor, etc. would be a battery if it can result in physical injury or
personal discomfort.

In Innes v. Wylie, a policeman unlawfully prevented the plaintiff from entering

the club premises. It was held that “if the policeman was entirely passive like a
door or a wall put to prevent from entering the room,” there was no assault.

Without Lawful Justification

In, Liegh v. Gladstone – Use of force should be intentional and without any
lawful justification. If two or more persons meet in a narrow passage and
without any violence or design of harm, the one touches the other gently, it will
be no battery. But if either of them uses violence against the other, to force his
way in a rude or inordinate manner, it will be a battery. Voluntarily suffering
harm does not amount to battery. Use of force may also be justified in pulling a
drowning man out of water, or forcibly feeding a hunger-striking prisoner to
save his life.
In Stanley v. Powell, Powell a member of the shooting party, fired at a pheasant
but the pallet from his gun glanced off a tree and accidentally wounded Stanley

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who was the other member of the party. It was held that Powell was not liable.
If the act is wilful or negligent, the defendant would be liable.

In Pratap Daji v B.B. & C.I. Ry, the plaintiff entered a carriage on the
defendant’s railway but by oversight failed to purchase a ticket for his travel.
At an intermediate station, he asked for a ticket but the same was refused. At
another place, he was asked to get out of the carriage since he did not have a
ticket. On his refusal to get out, force was used to make him get out of the
carriage. In an action by him for his forcible removal, it was held that the use
of the force was justified as he, being without a ticket, was a trespasser. The
defendants were, therefore, not liable.
In P. Kader v. K.A. Alagarswami, In Madras High Court held that putting
handcuffs on an undertrial prisoner and then chaining him like a dangerous
animal with a neighboring window in a hospital during his medical treatment is
an unjustifiable use of force and the police officer responsible for the same is
liable for trespass to the person. It was also observed that in such a case, there
is no need to prove any motive or intention on the part of the police officer,
because if the officer has exceeded and abused his authority, it may be out of
arrogance or even because of a temperamental defect which delights in cruelty,
the act would be malicious and mala fide unless it can plausibly be contended,
that the circumstances justified the use of the power.
4 . FALSE IMPRISONMENT
It consists in the imposition of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful justification. When a
person is deprived of his personal liberty, whether by being confined within the
four walls or by being prevented from leaving the place where he is, it is false
imprisonment If a man is restrained, by a threat of force, from leaving his own
house or an open field, there is false imprisonment.
The essentials are required:-
1. There should be total restrained on the liberty of a person
2. It should be without any lawful justification

Total Restrained

Whether the restrained is total or partial, the same is actionable. When the
restrained is total and a person is prevented from going out of certain
circumscribed limit the offence is of wrongful confinement as define in sec 340

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of IPC and when a restrain is partial and a person is prevented from going to a
particular direction as define in sec 399 of IPC. Under civil law, the position is
different. The tort of false imprisonment is constituted when there is a total
restraint. It is no imprisonment if a man is prevented from going to a particular
direction, but he is free to go to any other direction.
In Bird v Jones, a part of public footway, on hammer smith bridge was
wrongfully enclosed by defendant. Seats were put there and entry was given
only to those who pay to watch the rowing there. The plaintiff asserted his light
of using this footway, climbed over the fence of the enclosure but was
prevented to go forward. He remained there for about half an hour and
subsequently brought an action for false imprisonment.

Means of Escape

If there are viable means of escape, the confinement cannot be deemed as total,
and thus, it does not amount to false imprisonment. However, these means
must be understandable to the person being held. For example, if the captive is
a blind individual or a child, they should be able to discern the escape routes.
Furthermore, these means must offer a practical and reasonable way for the
individual to be released from detention.

Knowledge of the Plaintiff

There has been a difference of opinion on the point whether the knowledge of
the plaintiff, that there has been restraint on his freedom, is essential to
constitute the wrong of false imprisonment.
In Herring v. Boyle held that knowledge is an essential to constitute a tort of
false imprisonment. In this case a schoolmaster wrongfully refused to permit a
school boy to go with his mother until she pays the school fee. The
conversation between school master and mother was held in the absence of
boy. It was held that the refusal to the mother in the boy’s absence, and without
his being cognizant of the restraint, could not amount to false imprisonment.
While in Meering v. Graham-white Aviation co., held that knowledge of
imprisonment is not an essential element for bringing an action for false
imprisonment because the wrong could be constituted even without a person
having the knowledge of the same.

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Unlawful detention

In order to constitute the wrong of false imprisonment, it is necessary that the

restraint should be unlawful or without any justification.
The detention cannot be constituted to be lawful if person is not released from
jail after his acquittal held in Rudul Sah v. State if Bihar.
In Bhim Singh v. State of J. & K., the detention was unjustified. In this case, the
petitioner, an M.L.A. of the J. & K. Assembly was wrongfully detained by the
police in order to prevent him from attending the Assembly session. The act of
arrest was considered to be mischievous and malicious and the Supreme Court
considered it to be an appropriate case for granting exemplary damages
amounting to Rs. 50,000/-.

Lawful detention
When there is some justification for detaining a person, there is no false
imprisonment. Thus, if a man entered certain premises subject to certain
reasonable conditions, it is no wrong to prevent him from leaving those
premises and unless (hose conditions are fulfilled. In Robinson v. Balmain
New Ferry Co. Ltd., the plaintiff entered the defendant’s wharf with an idea to
cross the river by one of the defendant’s ferry boats. Finding that no boat was
available for another twenty minutes, he wanted to go out of the wharf. The
plaintiff had paid a penny for entry but refused to pay another penny, which
was chargeable for exit, according to the rules of the defendant as displayed on
the notice board. The defendants disallowed him to leave the wharf unless
payment for exit was made. In an action for false imprisonment, it was held
that the defendants were not liable as the charges were reasonable.

Chapter-2

Defamation

Defamation under Law of Torts is tarnishing the reputation of someone.

Defamation is defined under Section 499 of Indian Penal
Code (IPC) 1860 as whoever, if any person by words either spoken or
intended to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm, or

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knowing or having reason to believe that such words will be imputation and
can harm, the reputation of such person is said to defame that person.

We have two types of defamation under Law of Torts which the first
is Libel and second is Slander.

Libel this is a defamatory statement that has been published in a written

form, this written form of statement comes under defamation libel category.
There are two condition that needs to be seen when we file case of libel
against: –

1. Defender published the defamatory statement about the plaintiff

2. Other people also have been exposed to the statement.
In the case of libel there is not other further requirement, law itself presumes
once the statement is published the defamatory statement will remain in
written format or any other, and this will remain in public for long time and
will continue to do harm.
Slander it refers to the statement that is defamatory but is present in public in
verbal form (spoken) this is little difficult to prove as there is no particular
proof of the presented fact so in this the plaintiff may suffer some issues.
There are two types of slander and slander per se.
1. In the first the plaintiff must prove the stamen has been flown to at least one
other parson (i.e. the essential for defamation case) and because of that the
plaintiff suffered what are referred as special damage. This can be like loss
of customer, being fired, or other financial harm.
2. Slander per se does not require that the plaintiff prove the special damage.
This is because slander per se claims involves the statement that is in itself
presumed to be damaging plaintiff. Slander per say category include-

o Imputing criminal conduct of the plaintiff

o Saying that plaintiff has communicated some type of disease which is
communicable in nature.
o Any statement that can affect the plaintiff business or profession comes
under this category of slander per se.

Essentials of Defamation under Law of Torts

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The statement must be published- the statement should lower the reputation
in right thinking member of society generally or which tends to make them
shun or avoid that person.
Ram Jethmalani v. Subramaniam Swamy inquiry commission was setup for
examination the facts and circumstances related to assassination of late Shri
Rajiv Gandhi. The dependent in press conference said the chief minister of
Tamil Nadu has prior knowledge of assassination. And the statement was
found ex facie defamatory as that lowered down the reputation of plaintiff.
The statement must refer to the plaintiff, if the statement that is reasonably
infer that the statement referred to the plaintiff, it this is not the case the
defendant is not liable.
Newstead v. London Express Newspaper Ltd. The defendant published
newspaper article that mentioned that particular person XYZ has been
convicted for bigamy. The story was true but with same name in that same
area another person who was barber was getting defamed after, as the words
were considered to be understanding as referring to the plaintiff, the
defendant was held liable.
Defamatory statement must be published- publication means that statement
should be known to the other person other then the plaintiff or the defendant.
It no other person except the plaintiff knows about this then there is no
defamation.
Mahender Ram v. Harnandan Prasad in this the defamatory letter was
written in Urdu script, the plaintiff was not aware of this script, so he asked
third person to read, this was held as defamation as the defendant was aware
of the fact that plaintiff do not know Urdu.

Defenses available in Defamation under Law of Torts:

1. Justification of truth– under criminal law proving statement which was

made was true does not comes under defense but under civil law, merely
showing the statement mentioned is a true statement then person. The
defendant argued that conviction was described with substantial and
sufficient accuracy with words so far.
2. Fair Comment– the comment must be expression of opinion rather that
assertion of fact, the comment must be fair without any malice, the matter
commented upon should be in the public interest.

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3. Privilege– in certain occasion where law also recognized the right to

freedom of speech, where plaintiff has right of reputation, law treats those
occasions as the privileged, these are further two types-

o Absolute privilege is that no action, lies for defamatory statement even

though the statement is false or made maliciously. This has been given in
parliament privilege, judicial proceeding and state communication.
o Qualified privilege is necessary and it must be provided for without malice.
The defendant has to prove the statement was made on a privileged occasion
fairly.

Chapter-3
Malicious prosecution

Meaning of Malicious Prosecution under Law of Torts

Malicious prosecution under Law of Torts refers to the institution of false

criminal/bankruptcy/liquidation proceedings against an individual that are
motivated out of malice and are not supported by any element of reasonable
reasonability or probability.

Essential Components of Malicious Prosecution under Law of Torts

To assert the contention of malicious prosecution, the plaintiff has to

establish that the act by the defendant has all the components that are
imperative to establish liability in such cases. They are enumerated below:
1. The defendant must have instituted a false proceeding against the plaintiff.
2. The proceedings so instituted were as a result of sheer malice and must
not have any element of reasonableness or probability.
3. The end result of such proceedings must necessarily be in the favour of
plaintiff, be it acquittal or suspension of the suit.
4. It is for the plaintiff to prove that these proceedings have arbitrarily
interfered with his liberty and has led to adverse ramifications on his/her
reputation in the society.

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Civil proceedings– In the case of Genu Ganapati v. Bhalchand Jivraj, the

Bombay High Court laid down the similar ground rules for establishing civil
liability in case of malicious prosecution.

1. Prosecution by the defendant:

The foremost requirement to establish the case of malicious prosecution by
the plaintiff. It has to be presented that the prosecution was initiated against
the plaintiff as a result of arbitrary proceedings by the defendant. The term
‘prosecution’ hasn’t been aptly defined in the Code of Criminal Procedure,
1974 however with the help of various precedents set by the judicial courts,
we can infer the essence of the term and its scope.

Contrary to the generic notion, prosecution is not limited to the initiation of

proceedings against the plaintiff or a formal trial before a court. In the case
of Mohammed Amin v. Jogendra Kumar Banerjee, the privy council laid
down the test for contending such a prosecution. For the same, the council
emphasised on the damage caused to the plaintiff as a result of proceedings
rather than ascertaining the time when a proceeding took the form of
prosecution. It was held that the plaintiff will have the burden to prove that
despite the dismissal of the defendant’s complaint by the magistrate, the
same did result in causing damage to him.

What is not a prosecution?

It is a commonly held principle that any disciplinary action by an authority
cannot be regarded as prosecution by a judicial authority thus it cannot be
subjected to the suit of malicious prosecution
Further, in the case of Khagendra Nath v. Jacob Chandra, the court ruled
that prosecution cannot be said to have begun at the stage where the
complaint was made before a competent (executive) authority.

2. Presence of malice and the lack of reasonability or probability in

plaintiff’s prosecution:

This requisite lays its emphasis on the intention of the defendant while
instituting a suit for action against the plaintiff , which must be determined
on a factual and evidential basis as stated in the case of Jogendra Garababu

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v. Lingaraj Patra. It is imperative that in such cases, the complaint made

must lack the intent of bringing justice to the defendant and that the
defendant must have acted out of malice without any substance in the
allegations. It must be noted here that the term ‘malice’ is not limited to
mere ill- feelings or hatred towards a person but also covers any
immoral/improper cause that can result in causing wrongful damage to the
plaintiff such as to gain leverage. The same principle can be traced to the
case of Bank of India v. Lakshmimani Das and Ors.
Such an assessment must be made from the point of view of a reasonable
man. It is also crucial to state that even if at the beginning of the
proceedings, the defendant was unaware of plaintiff’s innocence, malice in
such cases can be deemed to be present since the moment, the defendant
comes to know of the innocence of the plaintiff and still he/she continues
with the proceedings which are false in nature. The onus to prove such
malice would lie on the prosecution.

Furthermore, if it is proved in due course of trial that the even though the
defendant possessed hard-feelings towards the plaintiff, the complaint was
reasonable on the basis of it being probable that the plaintiff had indeed
wronged the defendant, then in such a scenario no suit for malicious
prosecution can be made possible.

3. Termination of the prosecution in the favour of Plaintiff:

The case of malicious prosecution under Law of Torts can only be pleaded in
successful termination of the proceedings in the favour of the plaintiff. It can
be in the way of either the plaintiff’s acquittal or the suspension of any
further proceedings against him. It is must also be noted that the termination
of such proceedings against the plaintiff doesn’t necessarily represent his
innocence but merely states that he/she hasn’t been convicted in lieu of the
charges brought him/her. This position was stated in the case of Gilchrist v.
Gardner.

Exception to this rule:

There are two exceptions to the aforementioned requirement which are as

follows:

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a) When the plaintiff and the defendant have reached a settlement resulting in
withdrawal of the allegations made against the plaintiff.
b) A plea bargain in criminal cases cannot be termed as a termination in the
favour of the plaintiff.

4. Damages to be accrued by the plaintiff as a result of the wrongful

prosecution:

The last requirement to fulfil all the components of malicious prosecution

under Law of Torts is that the plaintiff must have accrued certain harm/injury
(damage) as a result of the prosecution that terminated in his/her favour. This
harm must be foreseeable and should not be extremely remote. The
categorisation of this harm was first stated by Holt CJ in the case of Savile v.
Roberts which was later opined by the Calcutta High Court in the case of C.M.
Agarwalla v. Halar Salt and Chemical Works. The categorisation goes as
follows:

a) Damages in respect of harm to the plaintiff’s reputation – If the suit has

led to tainting of the reputation of the plaintiff in the eyes of the right-thinking
members of the society through unnecessary allegations then the damages for
the same can be demanded.

b) Damages in respect of harm to the plaintiff’s body – When the

proceedings have hampered the liberty of the plaintiff or have led to fear of
injury then the damages for the same are recoverable.

c) Damages in respect of harm to the plaintiff’s property – The charges

borne by the plaintiff to fight a suit for his acquittal are recoverable if the
proceedings terminate in his favour and on the ground of arbitrary complaint.

Difference Between Malicious Prosecution and Abuse of Power

The distinction between prosecution inspired by malice and the act of abuse of
power is of considerable significance so as to ascertain the liability. This
distinction was dealt in case of West Bengal State Electricity Board v. Dilip
Kumar Ray[10] wherein the Apex Court (Supreme Court of India) held that the
former refers to instituting a process out of malice while the latter refers to

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process to obtain one’s motive by legal means for purpose other than the one it
was intended for.

Defences against Malicious Prosecution under Law of Torts

The defences that can be pleaded in the suit of malicious prosecution are:
 When the plaintiff is at fault – As stated supra, if the proceedings
instituted against the plaintiff result in conviction based on his/her being
guilty of the charged levied then such a person loses the right to sue the
defendant. The only remedy the plaintiff has will be of appeal against the
verdict.
 When the defendant is possession of some privilege– The privilege
may be in the form of judicial or statutory immunity.

Conclusion

The suit of malicious prosecution serves two purpose. The first being that it
enables the plaintiff to sue the defendant, the person who had wrongfully
instituted case with no probable cause. The Second purpose is that it leads to
protection of one’s liberty and reputation not only through way of damages but
also through creating a deterrent effect on the wrongdoer. This preservation is
in coherence with the Fundamental rights enshrined in the Constitution of
India.

Chapter-4

A-Nervous shock,

What is Nervous Shock?

Nervous shock in tort refers to a mental illness or injury resulting from the
intentional, negligent or reckless actions or omissions of another person. It
typically occurs when an individual has a genuine fear of suffering
immediate personal harm. This type of shock often manifests as a
psychological condition brought on by witnessing a traumatic event, such as
an accident involving one’s family members or spouse.

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Despite criticisms that the term is inaccurate and misleading, “nervous

shock” continues to be used as a convenient shorthand for a complex legal
concept. In English law, there are strict limitations on the amount of
compensation that can be sought for nervous shock, especially when it arises
from negligence.

Who can bring a Nervous Shock Claim?

A nervous shock in tort claim can be brought by an individual who has been
diagnosed with a genuine mental illness resulting from an event that the
defendant should have reasonably anticipated could cause such an illness in
a person of “normal fortitude” if reasonable care were not taken.
In addition to the affected individual, certain close relatives of the victim can
also bring a nervous shock claim. These close relatives include:
 One of the victim’s parents.
 People who are parents to the victim.
 The victim’s spouse or domestic partner.
 The victim’s child or stepchild.
 Any other individual for whom the victim serves as a parent.
The term “close relatives” also encompasses siblings, half-brothers or half-
sisters, step-brothers and step-sisters. A spouse, husband, wife or de facto
partner is referred to as a “spouse or partner” in this context. These close
relatives may bring a nervous shock claim if the criteria for such a claim are
met.
Evolution of Nervous Shock in Torts

Over time, the legal principles surrounding nervous shock in torts have
evolved. Courts have expanded the scope of claims to encompass a variety
of potential scenarios, moving beyond just immediate shock. Initially, the
courts were cautious about recognizing claims related to psychiatric illness,
fearing fraudulent or spurious claims under the guise of mental health issues.

One challenge in these cases can be demonstrating the connection between

the defendant’s actions and the plaintiff’s shock stemming from those
actions. This connection is essential for a successful nervous shock claim.

Tests of a Claim of Nervous Shock

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The legal test for a nervous shock claim typically involves three criteria
established by common law:
 Duty of Care: The defendant must owe the plaintiff a duty of care,
meaning the defendant had a legal obligation to act reasonably and avoid
causing harm to the plaintiff.
 Foreseeability of Psychological Harm: It must be reasonably
foreseeable that the plaintiff could experience psychological harm as a
result of the defendant’s actions or inaction. In other words, a reasonable
person in the defendant’s position should have anticipated the risk of
causing psychological harm to the plaintiff.
 Causation: The plaintiff’s psychological injury must be a direct result of
the defendant’s negligent act or omission. The plaintiff must establish a
clear causal link between the defendant’s actions and their psychological
harm.

Compensation in Nervous Shock Claims

There are two types of victims of nervous shock in torts:

Primary Victim: A primary victim is someone who is directly harmed in an

accident due to the negligence of the wrongdoer. This person is physically
affected by the incident.

Secondary Victim: A secondary victim is an individual who experiences

nervous shock as a result of an accident that harmed the initial victim but
was not physically endangered themselves.

Cases of Nervous Shock in Torts

Here are two notable case laws related to nervous shock in torts:

Bourhill v. Young
Facts: In this case, the House of Lords addressed the issue of liability for
mental illness. A pregnant woman exited a tram and heard the distant sound
of a car accident. She then visited the accident scene, saw blood on the road
and later experienced a miscarriage due to the stress she endured.

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A.k. chanda law college, batch-2022-2025

Judgment: The House of Lords ruled that the woman was not a
“foreseeable claimant.” In other words, she was not allowed to base her
claim on harm done to another person. This case set a precedent that limited
who could bring a claim for nervous shock in torts.

McLoughlin v. O’Brian
Facts: In this case, the plaintiff was not physically present near the accident
but was greatly distressed upon learning about it.
Judgment: The House of Lords held the defendants responsible and
expanded the law to include cases where the plaintiff arrived immediately
after the accident but had not personally witnessed or heard it. Lord
Wilberforce proposed three control mechanisms that should be determined
in each case: the group of people whose claims should be accepted, their
proximity to the disaster and the mechanisms leading to mental illness.
Following a unanimous vote in the House of Lords, these control
mechanisms were revised and applied to cases involving nervous shock in
torts.

Laws Related to Nervous Shock/Psychiatric Damages in India

In India, the jurisdiction and liability concerning psychiatric damages in tort
law are not extensively developed. While there isn’t specific legislation
addressing nervous shock, Indian courts have, in various cases, granted
compensation to plaintiffs based on the principle of reasonableness.

One significant case is Jose Philip Mamphilly v. Premier Automobile

Limited. In this case, the plaintiff purchased a brand new car that turned out
to be defective. The mental distress caused by this experience led to a
nervous shock in torts. The manufacturer denied liability, claiming the
matter was trivial. However, the court ruled in favour of the plaintiff,
granting compensation for the mental agony endured. This case highlighted
the need for compensation in situations where consumers suffer mental
distress due to defective products.
The recent judgment in Bangalore Development Authority v. Syndicate
Bank emphasised that the amount of compensation awarded would depend
on the specific circumstances of each case, considering factors such as the
nature and duration of the harassment and the authority’s actions that led to
the distress.

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While India lacks specific legislation governing liability for nervous shock,
aspects related to mental health are addressed under the Mental Health Act,
1987. The compensation for psychiatric damages is typically determined on
the basis of reasonableness and the facts of each case.
Another notable case is Lucknow Development Authority v. M.K.
Gupta, where the plaintiff sought compensation for harassment and mental
agony after the authority failed to provide a flat as promised. The court
granted compensation, emphasizing the social benefit of such a judgment.
Cases related to psychiatric damages, like Ghaziabad Development
Authority v. Balbir Singh and Haryana Development Authority v. Vijay
Aggarwal, have followed a similar line of judgment based on
reasonableness.
However, in the case of Ghaziabad Development Authority v. UOI, the
court took a different approach, focusing primarily on the terms of a contract
and applying The Specific Relief Act, 1963. The court did not consider tort
aspects and stated that compensating the plaintiff for mental anguish was
improper in this case.
In summary, India does not have specific legislation addressing liability for
nervous shock in torts and cases related to psychiatric damages are
determined based on reasonableness and the individual circumstances of
each case. The approach taken by the courts for matters concerning torts
law can vary, with some cases emphasizing contractual aspects while others
consider tort principles.

Conclusion
Nervous shock in tort law refers to the emotional distress or psychiatric
harm suffered by an individual due to the negligent or intentional actions of
another party. To establish a claim for nervous shock, several key elements
must be proven, including the defendant’s duty of care, a breach of that duty,
foreseeability of psychological harm and a direct causal link between the
defendant’s actions and the plaintiff’s emotional distress.
Compensation may be awarded to victims, but the specific legal principles
and limitations can vary by jurisdiction. Nervous shock cases often involve
scenarios where individuals witness traumatic events or experience
emotional distress due to the defendant’s actions and they seek
compensation for their psychological suffering.

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 Iftikar Ahmed Laskar
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B- Trespass,

Introduction

Let’s imagine a situation you live in Delhi alone, every day before going to
the office you lock your door and leave. One fine day, while you are out on
your work you receive a call from your neighbor telling you that your door
lock has been broken and someone unknown is in there. You will panic,
right? Because your house is your property and you have possession over it
and no one has that right to interfere with your things against your will
unless you give such permission. You will always want to preserve your
property from such external intrusion.
The above-mentioned incident is an example of Trespass. So now, the
question arises what is trespass in actual terms? It can be defined as a
malicious intrusion into someone else’s body, property, or thing. In simpler
terms it is an Interference with another’s belonging without their permission
is Trespass.
People don’t like unnecessary Interference whether it be their body or their
property. Illegal intervention with the same can never be accepted. And to
protect people from all the 3rd party interference which is done with a mala
fide intention all such laws are introduced by our lawmakers. The literal
meaning of the word trespass means to go into somebody’s land or property
without permission.

Types of Trespass
Trespass consist of both civil and criminal elements.

CIVIL TRESPASS:- Roaming around and unintentionally entering into

someone’s property without their permission would come under civil
trespass. In the cases of civil trespass, the enforcement of the law is to be
done by a private individual to bring a lawsuit.
Eg:- Pavani was inside in her car and suddenly Aman walks in the car and
sat down without her permission. Here in this case Pavani can file a suit for

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civil trespass case against Aman because Aman’s interference was without
Pavani’s permission.

CRIMINAL TRESPASS:- It has been defined under section 441 of the

Indian penal code,1860. Entering into a property that is in someone else’s
possession with a malicious intention to create an offense is termed as
Criminal trespass. In such cases, the law is imposed by the police and
attorney’s whether it is state or local. The punishment for criminal trespass is
imprisonment which may extend to 3 months or a fine which may extend to
500 rupees or both.
Eg:- Sanchit owns a farm and Vanisha entered the farm without Sanchit’s
permission for enjoying and roaming around. This can be termed as civil
trespass. But Vanisha goes and steals one of the Sanchit’s owned goats, then
in this case Vanisha will be held liable for Criminal trespass.
Here in the above-mentioned case, Sanchit can bring action against Vanisha.
He may forcefully eject her and defend his possession. Note:- the action
includes as per the case may be, claims for damages or injunctions.

An unlawful act is committed against the property of another person

and also against another person. It can be categorized as:-

1. TRESPASS TO PERSON
Trespass to the person means an intentional interference with any person’s
body or liberty. It can occur even when a victim doesn’t suffer from any
physical harm. There are three main wrong that falls under this category of
trespass
(i) Battery
The wrong of battery is committed when there is an intentional application
of force to another person without any lawful justification. Its essentials are:-
 Use of force
 Without any lawful justification
Eg. Vihaan goes to Bipin and punches him with the force strong enough to
hurt Bipin and Vihaan had the intention to hurt Bipin so this is termed as
Battery.
(ii) Assault

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Whenever there is a reasonable apprehension of use of force without any

lawful justification by one person on the other is termed as an Assault. The
essentials for assault are:-
 Reasonable apprehension of use of force
 Without any lawful justification
Eg. Ansh was busy shopping and suddenly Binod pulls out his gun and
threatened him to shoot the gun so this is assault.
(iii) False Imprisonment
Imprisonment in law means confinement in a prison. In literal terms, it is the
act of restraining the personal liberty of an individual. In further simpler
terms, imprisonment is something that takes away your ‘liberty’ in terms of
free movement, residence, and actions.
It is the total restraint on the liberty of a person for however a short a time
without lawful exercise. The essentials of false imprisonment are:-
 Total restraint of the liberty of a person
 Such restraint is unlawful
Eg. Ankita restrains a kid in a room and forbids him to meet his parents and
also threatens him that she will not be providing food and other necessities
so this is false imprisonment.

2. TRESPASS TO PROPERTY
Property in literal terms means anything whether it be Land, Building, Car,
House, etc. over which someone has a legal title is called a property. So
trespass to property arises when there is an interference with any tangible or
intangible object which is under someone else possession without any lawful
justification is termed as trespass to property.
Eg. Aashi enters Balram’s land and broke his window so this is trespass to
property committed by Aashi.
Trespass to property can be subcategorized under the following categories:-
 Trespass to animals
 Trespass to movable property
 Trespass to immovable property
 TRESPASS TO ANIMALS
Animals especially domestic animals are treated as movable property or
livestock in legal and accounting language. If the domestic animal owned by
a person trespasses a land and does damage to the property of the owner.
Then he has a right to use reasonable force to deter them from his property.

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He also has a right to lien over those animals until the damage is paid by the
owner.
 TRESPASS TO MOVABLE PROPERTY
Section 2(9) of the Registration Act 1908 defines movable property as:
‘Movable property’ includes standing timber, growing crops and grass, fruit
upon and juice in trees, and property of every other description, except
immovable property. When a person with a malicious intention causes any
harm to the movable property of others this is termed as the commitment of
trespass to movable property. It means the unjustified intrusion of some
else’s property without his consent.
Eg. Akasha’s friend Binod enters Akasha’s van and broke a window without
her permission. Here Binod is liable for the act of trespass to movable
property.
 TRESPASS TO GOODS
Whenever there is an intentional interference of goods that are in someone
else’s possession without any lawful justification, then this is termed as
Trespass to goods. The essentials include:-
 Interference with someone else goods
 Without lawful justification
Eg. Ajay poisoned Binay’s dog so this is called Trespass to goods.
Kirk v. Davis
In the mentioned case the defendant after the death of her brother in law
removed some jewelry from the room where his dead body was lying to
another safer place. The jewelry was stolen from the place where it was now
kept. It was held that the defendant was liable for the trespass to goods by
her act in moving of property.

TRESPASS TO IMMOVABLE PROPERTY

Immovable property as per section 3(26) of the General Clauses Act 1897,
“immovable property” shall include land benefits to arise out of land and
things attached to the earth or permanently fastened to anything attached to
the earth. Immovable property means and includes land, house, flat,
minerals, metal ores, etc. The act of unlawful and unjust possession or even
an unjustified entry on the land means trespassers to immovable property.

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Eg. Anisha enters Binay’s house without his permission and broke an
antique piece so this is the trespass of immovable property committed by
Anisha.

Trespass to Land
Land includes the soil, any fixtures permanently attached to the land(House,
Walls, Poles, etc.) also the airspace above the land and ground below up to a
reasonable height and depth. Trespass is direct interference with possession
of enjoyment of the land of another, interference could be by a person
himself or by some other material object.
Gregory v. Piper(1829)
In the following case defendant used to throw trash on the plaintiff’s land.
And it was held that it was a direct intrusion to leave rubbish in the
defendant’s land and therefore as held liable for trespass.
Kelsen v. Imperial Tobacco [1957] 2 QB 334
In the mentioned case the plaintiff was successful to claim the Injunction
against the defendant based on trespass. They had hung an advertising sign
that projected into the airspace above the plaintiff’s land by four inches. It
was held that airspace till a reasonable limit is part of the land.
SMITH v. STONE
In the mentioned case the defendant was carried on the land of another by
force so it was held that since the defendant was taken to the plaintiff’s
property involuntarily the defendant would not be held liable for trespass but
the people who forced and took the defendant there would be held liable for
trespass to land.

Defenses available for Trespass to Land

1. LICENSE:- Basically, it is an expressed or implied permission given by
the person who has the possession over the land to be on land so much
interference is justified but when the same person revokes his permission
and ask you to get out of his land but you are still present there this would
constitute as wrong of trespass. This is termed trespass ab initio.
2. JUS TERII:- It refers to such a situation where the defendant can prove
that the land is not possessed by the plaintiff but by a third party and the
plaintiff is not acting on behalf of the third party.

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3. NECESSITY:- It refers to such a situation in which it is vital to commit

the trespass. To avoid the greater harm a person carries out smaller harm so
this act is termed as that of necessities.

Trespass to Land – A Crime Perspective

It can be both civil and criminal based on the severity of the act. For
instance, Ajay negligently enters the premise of Binod so here he will be
liable for civil trespass to land but if Ajay with the malicious intention of
committing theft would have entered the premise then this would have
turned into a criminal trespass. Simply trespassing into someone’s and does
not form it criminal. This type of interference would come under civil wrong
hence making it a civil trespass. But with a bad intention purposely entering
into the land makes the case criminal in nature.

Conclusion
In India people are not much aware of their rights and laws, they might be a
victim of trespass but still due to unawareness they might not understand it.
To keep yourself, your family, or your property protected from someone’s
intervention it is significant to know about the laws and nature of trespass.
The true meaning of each such term needs to be understood to evaluate
trespass and resolve the cases by applying the relevant doctrine. If the threat
possessed to your property is severe in nature sections 103 and 104 of the
Indian penal code allow a person to cause grievous hurt or to even kill
someone to protect your property. But this power should only be utilized
when it becomes the last resort. It varies from case to case according to
severity. One can also get an injunction to prevent someone from trespassing
on your property. And in this case, one can also claim the damages suffered
from the trespass.

Law of torts notes covers

Unit -3

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 Iftikar Ahmed Laskar
A.k. chanda law college, batch-2022-2025

Chapter 1,2,3, &4.

These notes are made on own studies and suggest every reader to follow the
law books………
Torts by R. K. Bangia

Iftikar Ahmed Laskar

(ex-student AKCLC)
Batch-2022-2025
Practicing lawyer at
District Bar Association, Silchar.
Ph.no-9707387858
Email. 📧 [email protected]

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