Q. Describe general exceptions regarding Torts that are not actionable / General Defences for Torts.

Even when a plaintiff provides proof for the existance of all the essential elements of a tort, it is possible in some
cases for the defendant to take certain defences which can remove his liability, These defences are nothing but
specific situations or circumstances in which a defendant is given a waiver for his tortious action. These are as
follows 1. Volenti Non fit Injuria
When a person consents for infliction of an harm upon himself, he has no remedy for that in Tort. That means, if a
person has consented to do something or has given permission to another to do certain thing, and if he is injured
because of that, he cannot claim damages. For example, A purchases tickets for a Car race and while watching
the race, an collision of cars happens and the person is injured. Here, by agreeing to watching the race, which is
a risky sport,it is assumed that he voluntarily took on the risk of being hurt in an accident. Thus, he cannot claim
compensation for the injury.
Such a consent may be implied or express. For example, a person practicing the sport of Fencing with another,
impliedly consents to the injury that might happen while playing.
In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse show, during
which one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell
in the course. He was seriously injured. It was held that the defendants had taken proper care in closing the
course and the plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were
not held liable.
However, the action causing harm must not go beyond the limit of what has been consented. For example, in a
sport of fencing, a person consents to an injruy that happens while playing by the rules. If he is injured due to an
action that violates the rules, he can claim compensation because he never consented to an injury while playing
without rules.
In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump from her breast.
But the hospital removed her uterus as well without any genuine reason. It was held that removing of her uterus
exceed beyond what she had consented for.
Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was compelled by
the master to do a certain task despite his protests, and if he is injured while doing it, the master cannot take the
defence of volenti non fit injuria because the consent was not free.
Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has consented -

1.

Rescue Conditions - When the plaintiff sufferes injury while saving someone. For example, A's horse
is out of control and is galloping towards a busy street. B realizes that if the horse reaches the street it
will hurt many people and so he bravely goes and control's the horse. He is injured in doing so and
sue's A. Here A cannot take the defence that B did that act upon his own consent. It is considered as a
just action in public interest and the society should reward it instead of preventing him from getting
compensation.

2.

Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this
defence. For example, even if a laundry, by contract, absolves itself of all liability for damage to clothes,
a person can claim compensation because the contract is unfair to the consumers.

2. Plaintiff the wrongdoer

A person cannot take advantage of his own wrong. This principle has been in use since a long time as it is just
and equitable. For example, a person trespassing one another's property is injured due to darkness. He cannot
claim compensation because he was injured due to an action which was wrong on his part. However, this
defence exists only if the injury happens because of a wrongful act of the plaintiff. It does not exist if the injury
happens because of a wrongful act of the defendant even if the plaintiff was doing a wrongful but unrelated act.
For example, in Bird vs Holbrook 1828, the plaintiff was trespassing on the defendant's property and he was
hurt due to a springgun. The defendant had put spring guns without any notice and was thus held liable.
3. Inevitable Accident
Accident means an unexpected occurance of something that could not have been predicted or prevented. In
such a case, the defendants will not be liable if they had no intention to cause it and if the plaintiff is injured
because of it. For example, in Stanley vs Powell 1891, the plaintiff and the defendant were members of a
shooting party. The defendant shot a bird but the bulled ricocheted off a tree and hit the plaintiff. The defendant

was not held liable because it was an accident and the defendant did not intent it and could neither have
prevented it.
However, the defence of Inevitable Accident is not a license to negligence. For example, A has hired B's car.
While driving, one of the tires bursts and causes accident injuring A. Here, if the tires were worn out and were in
bad condition, it would be negligence of B and he would be held liable for A's injuries.
4. Act of God
An act of God in a legal sense is an extraordinary occurance of circumstance which could not have been
predicted or prevented and happens because of natural causes. Nobody can predict, prevent, or protect from a
natural disaster such an an earthquake or flood. Thus, it is unreasonable to expect a person to be liable for
damages caused by such acts of God. There are two essential condtions for this defence - the event must be due
to a natural cause and it must be extraordinary or some thing that could not have been anticipated or expected.
For example, heavy rains in the monsoon are expected and if a wall falls and injures someone, it cannot be
termed an act of god because protection for such expected conditions should have been taken. But if a building
falls due to a massive earhquake and injures and kills people, this defence can be used.
In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal activities of an unruly mob is not
an act of God.
5. Private Defence
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private defence. Thus, law
permits the use of reasonable and necessary force in preventing harm to human body or property and injuries
caused by the use of such force are not actionable. However, the force must be reasonable and not excessive.
In Bird vs Hollbrook 1892, the defendant used spring guns in his property without notice. It was held that he
used excessive force and so was liable for plaintiff's injury even though the plaintiff was trespassing on his
property.
6. Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the mistaken
belief that he is trespassing on your property, will not be defensible. However, in certain cases, it could be a valid
defence. For example, in the case of malicious prosecution, it is necessary to prove that the defendant acted
maliciously and without a reasonable cause. If the prosecution was done only by mistake, it is not actionable.
Further, honest belief in the truth of a statement is a defence against an action for deceit.
7. Necessity
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over a
small boat hurting 2 people in order to prevent collision with another ship which would have hurt hundreds of
people is excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger striking prisoner to save her
was held to be a good defence to an action for battery.
8. Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature is excused from tortious
liability even though in a normal circumstances, it would have been a tort. When an act is done under the
authority of an Act, it is a complete defence and the injured party has no remedy except that is prescribed by the
statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's woods that existed in
his land adjoining the railway track. It was held that since the company was authorized to run the railway and
since the company had taken proper care in running the railway, it was not liable for the damage.

Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards persons in general and its breach is
redressable by an action for unliquidated damages.

Malice and Motive

Mental element is an essential element in most of the forms of crime. Under criminal law mere act is not
enough to create liability, mens rea is also required. However it is not so easy to make such generalization about
liability in tort. The position under law of torts is as follows:
Malice
The term malice has been used in two different senses1.
In its legal sense, it means a willful act done without just cause or excuse and it is known as malice in
law. It means a wrongful intention presumed in case of an unlawful act rather than a bad motive or feeling
or ill will.
2.
In its narrow and popular sense, it means an evil motive, and the same is known as malice in fact. For
example in an action for defamation, alleged statement published falsely and maliciously simply means the
statement was false and made without lawful justification.
Motive
Motive is the ulterior purpose or object for doing an act. It differs from intention, which relates to the
wrongful act itself. The immediate intention of a person may be to commit theft but the motive for theft may be
to buy food for poor.
Relevance of malice and motive in torts
As a general rule malice or evil motive is not relevant to determine a persons liability in torts. An unlawful
act does not become lawful because the motive is good. Similarly, a lawful act does not become unlawful
because of bad motive or malice.
Bradford Corporation v. Pickels is an authority which explains the aspect that a lawful act does not become
unlawful merely because of an evil motive. In this case the defendant sank a well on his land and thereby cut off
underground water supply from the plaintiff and plaintiffs well was dried up. It was not unlawful even though
the defendants motive in doing so was to coerce the plaintiffs to buy his property at his price. Therefore the
defendant was not liable.
South Wales Miners Federation v. Glamorgan Coal Company is an illustration to explain the aspect that an
unlawful act does not become lawful because it is done with a good motive. The plaintiffs, owners of coal mines
brought an action against the defendants, the workers union for inducing the workmen to make breach of
contract by ordering them to go on holidays. The defendants were held liable though their object was to keep up
the price of coal by which the wages was regulated.
In Town Area Committee v. Prabhu Dayal, the plaintiff made certain construction without complying with
the rules of the UP Municipalities Act. The defendants demolished the construction. The plaintiff sued the
defendants contending some of the officers of the Town Area Committee were acting maliciously. The Allh. HC
held the demolition lawful as the construction was illegal and did not investigate whether the same was
maliciously as it was irrelevant.
Exceptions
Malice or motive becomes relevant when
1.
When the act is otherwise unlawful and wrongful intentions can be gathered from the circumstances of
the case.
2.
In torts of deceit, conspiracy, malicious prosecution and injurious falsehood.
3.
In certain cases of defamation, when qualified privilege or fair comment is used as defence motive
becomes relevant.
4.
Causing personal discomfort by unlawful motive may turn an otherwise lawful act into nuisance.

Right of a master to recover damages from servant

If a servant does a wrongful act in the course of his employment, the master is liable for it. The wrongful act
of the servant is deemed to be the wrongful act of the master.
The doctrine of liability of the master for the act of his servant is based on the maxim respondeat superior
which means let the principal be liable and it puts the master as if he had done the act himself.
Right of a master to recover damages from his servant
The law implies a term in contract between the employer and the employee that the employee will exercise
reasonable care in performance of his work and, therefore, if the master is obliged to pay damages to a third

party for the wrongs committed by the servant, he can recover that amount from the servant in a suit for
damages for breach of the implied term.
It was so held by the House of Lords in Lister v. Romford Ice and Cold Storage Co Ltd. in this case the facts
were that a lorry driver employed by a company took his father, a fellow servant, with him as a mate. In back
the lorry, he injured his father by negligent driving. The father recovered damages in an action against the
company for the negligence of the driver. The company then brought an action against the driver
1.
For contribution as a tortfeasor
2.
For damages for the breach of an implied term in his contract of service.
The House of Lords held that the driver was under a contractual obligation of care to his employer in the
performance of his duty as a driver and the company is entitled to recover damages from the servant for the
breach of the same.
In India it has been held by the Supreme Court in Lucknow Development Authority v. M.K.Gupta that where
an officer of the government or public authority acts maliciously or oppressively causing harassment and agony
to the plaintiff, the government and the authority made liable for the damages must recover the amount from the
officers who are responsible. The reason is that when the government or public authority is made to pay
damages the burden really falls on the citizens as taxpayers and there is no justification for burdening them for
malicious or oppressive conduct of the officers.

Remoteness of Damage
There would be manifest injustice if a person were held liable for all consequences of his act which in theory
may be endless. For example, if a cyclist negligently hits a pedestrian who was carrying bomb in his pocket, he
cannot be held responsible if the bomb explodes and kills people.
A person is therefore, responsible in law only for consequences which are not remote. No defendant can be
made liable ad infinitum for all the consequences which follow his wrongful act. In practicality, a line should be
drawn for the demarcation of the wrongs for which the defendant should be made liable and for which he should
not be.
Test of remoteness
There are two main tests to determine whether the damage is remote or not:
1.
The test of directness
2.
The test of reasonable foresight
Test of directness- according to this test, a person is liable for all the direct consequences of his wrongful act,
whether he could have foreseen them or not; because consequences which directly follow a wrongful act are not
too remote.
The leading authority on the test of directness is the decision of the Court of Appeal in In Re an Arbitration
between Polemis and Furness, Withy & Co. in this case the defendants had chartered the plaintiffs ship, the
Polemis, to carry a cargo which contained a quantity of benzene or petrol. Some of the petrol cases leaked on
the voyage and there was petrol vapour in hold. Owing to the negligence of the defendants, a plank fell into the
hold, a spark was ignited and consequently the whole ship was destroyed by fire. The owners of the ship were
held entitled to recover the loss, being the direct consequence of the wrongful act although such loss could not
have been reasonably foreseen.
Test of reasonable foresight- according to this test, if the consequences of a wrongful act could have been
foreseen by a reasonable man, they are not too remote.
This test I preference to test of directness was established by the decision of PC in OverseasTankship (U.K.)
Ltd v. Morts Dock and Engineering Co popularly known as Wagon Mound No 1. In this case during bunkering
operations in Sydney harbour, a large qty of oil was negligently allowed to spill from the Wagon Mound, a ship
under the defendants control as charterers. The oil spread to the plaintiffs wharf where another ship was being
repaired. In course of repair, a drop of molten metal fell on a floating waste setting it on fire and thus ignited the
floating oil resulting in destruction of the wharf by fire and also the vessel that was being repaired.
The Court deciding the case held that the destruction of the wharf though not foreseeable was direct and gave
judgment in favour of the plaintiff. But the PC on appeal held that it does not seem consonant with ideas of
justice and morality for an act of negligence; it is the foresight of a reasonable man which alone can determine
responsibility. It also held that the Polemis case should not be regarded as a good law.

Distress Damage Feasant

Distress damage feasant is a remedy by which, if cattle or other things be on a mans land encumbering it or
otherwise doing damage there, he may summarily seize them, without legal process, and retain them impounded
as a pledge for the redress of the injury he has sustained.
Anything animate or inanimate which is wrongfully there on the land of another and is doing damage may be
distrained for damage. For instance greyhounds chasing and killing rabbits may be distrained damage feasant.
The idea is to force the owner of the chattel to pay compensation and after the compensation is paid, the
chattel is to be returned. It can be exercised only by a person who has a sufficient possession of land to entitle
him to maintain an action for trespass.
In Boden v. Roscoe, the occupier of the land was held entitled to detain a pony, which after trespassing had
kicked his filly, until compensation for the damage done was paid.
In Ambergate Railway v. Midland Railway, a railway engine was distrained where it was used on the railway
line of another company without a certificate of the company as required by a statute.
The right is available only when the object in question is unlawfully there on certain land. Moreover, the right
can be exercised when the trespassing animal or chattel is still creating a trespass. There is no right to follow the
things after it has gone out of premises or to recover them after the owner has taken them away.
The right of distress damage feasant does not hold good in India except under express law. But there is a
special enactment the Cattle Trespass Act which contains special provisions for impounding of cattle taken
trespassing and doing damage. The act enables the person on whose land cattle trespass and do damage to take
them to a cattle pound within 24 hour; there is no right of further detention or sale.

Defamation- Libel & Slander

Defamation is the injury to the reputation of a person. If a person injures the reputation of another, he does so
at his own risk, as in the case of interference with property. A mans reputation is his property, more valuable
than any other property.
The wrong of defamation may be committed either by way of writing (libel) or by its equivalent speech
(slander).
A libel is a publication of a false and defamatory statement tending to injure the reputation of another person
to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause
him to be shunned or avoided in the society.
A slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of
another.
Libel is addressed to eye and slander to ear.
It was held in Yousoupoff v. MGM Pictures Ltd, that, in a cinema film, not only the photographic part is
considered to be a libel but also the speech which synchronizes with it is also a libel.
Slander under English law
Slander under English law is not a criminal offence like libel, but only a civil wrong. Under English law, in
case of slander, it must be proved that the words complained are
1.
False
2.
Defamatory
3.
Published by the defendant
4.
Some special damage has resulted from their use.
Words not actionable without special damage- slander is not actionable per se. The special damage must
appear to be natural consequence of the words spoken. For ex: loss of customer, loss or refusal of some
employment, loss of hospitality of friends etc.
An action of slander may be maintained, without proof of special damage in the following cases:
1.
If a criminal offence is imputed to the plaintiff.
2.
If a contagious or infectious disorder, tending to exclude the plaintiff from society, is imputed to him.
3.
If any injurious imputation is made, affecting the plaintiff in his office, profession, trade or business
and the imputation imputes to him unfitness for or misconduct in, that calling.
4.
If the plaintiff is a woman or girl, and the words impute unchastity or adultery to her.
Slander under Indian law
Unlike English law, criminal law in India does not make any distinction between libel and slander. Both libel
and slander are criminal offences under section 499 of IPC.

The common rule that slander is not actionable per se has not been followed in India except in few cases. The
reason given is that the rule is not founded on any obvious reason or principle and that it is not consonant with
justice, equity and good conscience.
The Indian cases fall under the following categories namely:
1.
Imputation of crime- an action can be maintained where the word complained of impute the
commission of a criminal offence which is cognizable. Mere hasty expression spoken in anger which
would not injure character will not be actionable.
2.
Vulgar abuse- in India distinction has been made between vulgar language amounting only to insult
and vulgar lang amounting to insult and defamation. In former no action lies while in latter action lies
without proof of special damage. The leading case is Parvathi v. Mannar, where the defendant abused the
plaintiff and said that she was not the legally married wife of her husband and was ejected out from several
places for unchastity. The defendant was liable though no special damage was proved.
3.
Imputing unchastity- an imputation of unchastity to a woman is actionable without proof of special
damage. It has been held by the Calcutta HC in Sukan Teli v. Bipal Teli, by Madras HC in Narayana Sah
v. Kannamma Bai, by Bombay HC in Hirabhai v. Dinshaw.
4.
Aspersion on caste- it is actionable without proof of special damage to say of a high caste woman that
she belongs to low caste. The suit can be brought by her or by her husband.
Essentials of defamation
1.
The statement must be defamatory.
2.
The said statement must refer to the plaintiff.
3.
The statement must be published.
Statement must be defamatory- any words will be deemed defamatory which1.
Expose the plaintiff to hatred, contempt, ridicule, or obloquy
2.
Tend to injure him in his profession or trade
3.
Cause him to be stunned or avoided by his neighbours.
Statement must refer to the plaintiffa.
In an action for defamation the plaintiff must show that the defamatory statement refers to him. It can be
direct or indirect.
b.
Innuendo- words are prima facie defamatory when their natural, obvious, primary sense is defamatory.
When words are prima facie innocent they are not actionable unless their secondary or latent meaning that
is innuendo is proved by the plaintiff.
c.
Defamation of deceased person- it is not a tort to defame deceased person. But the statement expressly
referred to the deceased reflects upon the plaintiff and affects his reputation then an action will be
maintainable.
d.
Defamation of class of persons- If a class of people is defamed, there will only be an action available to
individual members of that class if they are identifiable as individuals.
e.
Unintentional defamation- At common law it was irrelevant that the defendant did not intend to refer to the
plaintiff. The defence is now contained in ss 2-4 of the Defamation Act 1996.
Publication- communicating defamatory matter to some person other than the person to whom it is written is
publication and it is essential in every case of defamation.
Essentials for libel
In order to bring an action for libel it must be proved that the statement complained of is
1.
False
2.
In writing
3.
Defamatory
4.
Published
False- the falsity of the charge is presumed in the plaintiffs favour. The burden of proof that the words are false
does not lie upon the plaintiff. Defamation of a person is taken to be false until it is proved to be true. The
motive of the defendant is not material in determining liability.
In writing- the defamatory statements must be in writing or in printing, or may be conveyed in the form of
caricatures or any other similar representations, for example a scandalous picture.
In Yousoupoff v. MGM Pictures Ltd, Princess Irina of Russia, the wife of Prince Yousoupoff, claimed
damages for a libel contained in a sound film, alleging that the MGM Company Ltd, had published pictures and
words in the film which were understood to mean that she, therein called Princess Natasha had been raped or
seduced by a Rasputin. The award was given in her favour with damages of 25000 pounds.
Under the Defamation Act broadcasting of words by means of TV and radio is libel. Similarly by Theaters
Act, theatrical performances are also considered libel.

Statement must be defamatory- any words will be deemed defamatory whichd.

Expose the plaintiff to hatred, contempt, ridicule, or obloquy
d.
Tend to injure him in his profession or trade
d.
Cause him to be stunned or avoided by his neighbours.
The test is whether the word would tend to lower the plaintiff in the estimation of right-thinking members of
society generally. In applying this test the statement complained of has to be read as a whole and the words
used in it are to be given their natural or ordinary meaning which may be ascribed to them by ordinary men.
There are statements which without reasonable doubt are defamatory. For example it is libellous to publish
that a newspaper proprietor is a libelous journalist or that a barrister is quack lawyer and mounte-bank etc.
Publication- communicating defamatory matter to some person other than the person to whom it is written is
publication and it is essential in every case of defamation. If the statement is sent straight to the person to whom
it is written, there is no publication of it, as no libel of a man can be published to himself. This cannot injure his
reputation, though it may injure his self-esteem.
But if the defamatory matter be transmitted in a telegram, or be written on a postcard and sent to the person
libeled, it is a publication.
Newspaper libel- they are subject to the same rules as other critics and have no special right or privilege, and
in spite of the latitude allowed to them, they have no special rights to make unfair comments, or to make
imputations upon a persons character or in respect of persons profession or calling.

Trespass to movable property- Conversion

A conversion is an act of willful interference, without lawful justification, with any chattel in a manner
inconsistent with the right of another, whereby, that other is deprived of the use and possession of it. The
expression willful interference in this definition implies the element of intention which refers to the intentional
commission of the act constituting conversion. A person dealing with the goods of another in a wrongful way
does it at his own peril and it is no defence that he honestly believed that he had a right to deal with the goods
and he had no knowledge of the owners rights on them.
Kinds of conversion
An act of conversion may be committed1.
When property is wrongfully taken.
2.
When it is wrongfully parted with.
3.
When it is wrongfully sold.
4.
When it is wrongfully retained.
5.
When it is wrongfully destroyed.
6.
When there is a denial of the lawful owners right.
Conversion by taking- Anyone who without authority takes possession of another man's goods with the
intention
of
asserting
dominion
over
them
is
guilty
of
conversion.
The reason is that it is an act inconsistent with the general right of dominion which the owner of the chattel
has in it.
A mere taking unaccompanied by an intention to exercise permanent or temporary dominion may be a trespass,
but is no conversion.
Conversion by parting with goods- If a man, who is entrusted with the goods of another, put them into the
hands of a third person contrary to orders, it is a conversion. The wrongful act is done when he purports to give
to the third person along with the mere possession some right over the property itself.
Conversion by sale- Any person, who, however innocently, obtains possession of the goods of a person who
has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of any other
person, is guilty of conversion. Wrongful sale of goods is conversion.
Conversion by keeping- Where a man has possession of another's chattel, and refuses to deliver it, this is an
assertion of a right inconsistent with his general dominion over it, and the use which at all times, and in all
places, he is entitled to make of it, and consequently amounts to an act of conversion.
Right of a finder- as regards finders, the law is that the finder of a chattel who is not a trespasser acquires a
right to keep it against the whole world but the true owner, if the chattel had been abandoned or lost and if he
took it into his care and control. However, this right is subject to the superior right of an occupier of a building
to
retain
the
chattels
attached
to
that.
Conversion by destruction- Destruction of a chattel belonging to another is an act of conversion, forcits effect
is to deprive the owner of it all together.

In Richardson v. Atkinson, the defendant drew out some wine out of the plaintiff's cask and mixed water with
the remainder to make good the deficiency. He was held liable for the conversion of the whole cask as he had
converted part of the contents by taking and remaining by destruction.
Conversion by denial of right- If the act of the defendant amounts to absolute denial and repudiation of
plaintiff's right, even though he has never been in physical possession of them, it is a conversion of goods.
Unlawful user of the goods of another in such a manner that the goods might be rendered liable to forfeiture
by
the
authorities
would
also
amount
to
conversion.
Defences
The justification or defences to an action for conversion are1) Lien- lien may be either general or particular. Demand and refusal are not evidence of conversion where
the party has a lien upon the chattel.
2) Right of stoppage in transit- this right arises out of contract relating to sale of goods.
3) Denial of plaintiff's right of property- this defence can be used where the plaintiff sues relying on his right
only or denial of possession.
Where the plaintiff was in possession of the goods at the time of conversion, the defendant cannot set up a
plea that a third party has superior title. Against a wrong doer possession is a good title. But where the plaintiff
was not in possession but only had a right to possess, the plea can be set up by the defendant.
4)
Distressgoods
are
taken
under
a
distress
or
under
an
execution.
5) Sale in market overt- according to English law sale of goods in market overt gives a good title to the
purchaser. Such a purchaser cannot be sued for conversion if he parts with the goods or refused to give them on
demand. In India this doctrine does not apply, but the case will be governed by ss 27-30 of the Indian Sale of
Goods Act.

General defences in torts

Parental & quasi-parental authority(6 marks)-the exercise of force or restraint for the purpose of
correction, chastisement or training, whether towards
a.
child by parent, or
b.
pupil by master, or
c.
lunatic by custodian
Gives no cause of action, provided it is done reasonably, with bona fide intention and within moderate limits.
Loco parentis may, for the purpose of correcting what is evil in the child, inflict moderate and reasonable
corporeal punishment.
The authority of a school master is while it exists, the same as that of parent. A parent, when he places his
child with a school master, delegates to him all his authority, so far as is necessary for the welfare of the child.
The master can, thus, inflict moderate punishment.
The authority is not limited to offence committed by the pupil in the premises of the school but may extend to
acts done by pupil while on the way and from school.
Rex v Newport-a schoolmaster caned a student who had, contrary to the school regulations, been smoking
in the street during the time after having returned home. It was held that the father of the boy sending him to the
school authorized the schoolmaster to administer reasonable punishment on the boy for breach of a school rule
and that the punishment administered was reasonable.
1.

Inevitable accident (10 marks)-It is that which could not possibly be prevented by the exercise of
ordinary skill, caution and care.
It means an accident physically unavoidable. It does not apply to anything which either party might have
avoided.
Pollock-It does not mean absolutely inevitable but it means not avoidable by any such precautions as a
reasonable man, doing such an act then and there, could be expected to take.
It is a good defense if the defendant can show that
a.
he did not intend to injure the plaintiff
b.
he could not have avoided the injury by taking reasonable care
Stanley v Powell (shooting case-explain)
Holmes v Mather- the defendants horses were being driven by his servant on a public highway. The horses
were so startled by the barking of a dog that they became unmanageable and in spite of the best care by the
defendant servant to control them, they knocked down the plaintiff. Held- defendant not liable.
2.

Brown v Kendall-the plaintiffs and the defendants dogs were fighting. While the defendant was trying to
separate them, he accidentally hit the plaintiffs eye, who was standing nearby. The injury to the plaintiff was
held to be the result of pure accident, to which no action could lie.
Act of God(6marks)-Act of God(viz major) is a defence. The rule of strict liability, i.e. the rule in
Rylands v Fletcher, also recognizes this to be a valid defence for the purpose of liability under that
rule.
Act of God is a kind of inevitable accident with the difference that in the case of Act of God, the resulting loss
arises out of the working of natural forces like exceptionally heavy rainfall, storms, tempests, tides and volcanic
eruptions.
Halsbury laws-an act of God, in the legal sense may be defined as an extraordinary occurrence of
circumstance, which could not have been foreseen and which could not have been guarded against.
Essentials
a.
there must be working of natural forces
In Nicholas v Marsland, the defense was successfully pleaded. There the defendant created some artificial
lakes on his land by damming some natural streams. Once there was an extraordinary heavy rainfall, stated to be
the heaviest in human memory, as a result of which, the embankments of the lakes gave way. The rush of water
washed away 4 bridges belonging to the plaintiff. It was held that the defendants were not liable as it was an act
of God.
b.
The occurrence must be extraordinary and not one which could be anticipated and reasonable guarded
against.
In Nicholas v Marsland, the rainfall was extraordinarily heavy and could not be anticipated. If the rainfall is a
normal one which could be expected in a certain area, this defense cannot be pleaded.
3.

4.
Private defence-the law permits the use of reasonable force to protect one person or property.
To claim this defence the following must be satisfied
a.
the defendant must be under threat or attack
b.
the response must be necessary for self defense and not for revenge
c.
the response must be proportional to the attack or threat

Mistake-Mistake, whether of law or of fact, is generally no defence to an action for tort. When a person
willfully interferes with the right of another person, it is no defence to say that he had honestly believed
that there was some justification
Entering the land of another person thinking that to be ones own is trespass.
Certain exceptions-for the wrong of malicious prosecution, it is necessary to prove that the defendant had
acted maliciously and without reasonable cause and if it was mistaken, it is not actionable.
5.

Necessity-an act causing damage, if done under necessity to prevent a greater evil is not actionable even
though harm was caused intentionally.
Example-pulling down a house to stop further spread of fire or throwing goods overboard a ship to lighten it
for saving the ship and persons on board.
6.

Statutory authority (6 marks)-the damage resulting from an act, which the legislature authorizes or directs
to be done, is not actionable even though it would otherwise be a tort. When an act is done, under the
authority of an Act, it is complete defence and the injured party has no remedy except for claiming such
compensation as may have been provided by the statute.
Immunity under statutory authority is not only for harm which is obvious but also for the harm which is
incidental to the exercise of such authority.
Thus, if a railway line is constructed, there may be interference with private land. When the trains are run,
there may also be some incidental harm due to noise, vibration, smoke, emission of sparks etc. No action can lie
for either except for payment of compensation as laid down in the Act.
7.

Plaintiff the wrongdoer-No court will aid a person who found his cause of action upon an immoral or
an illegal act, i.e. form an immoral cause no action arises.
Example- a person who tries to illegally enter the defendants house and gets bitten by the defendants dog.
The person cannot claim compensation because he was also the wrong doer.
8.

Foreign torts

Definition-a foreign tort means a tort which is committed abroad, i.e, a tort the cause of action regarding which
has arisen abroad.
Kinds
1.
2.

Tort of reality-a tort in the nature of an injury to land outside the country.
An action for trespass or other injury to land outside India cannot be brought in India
Personal torts-a tort in the nature of injury to person or immovable property.
Where, however, the tort is one committed with respect to movable property or against the person of the
plaintiff, an action of tort will lie in India, if the defendant resides in India.

Necessary conditions
1.
The act should be unlawful at the place of commission-the cat complained of must be unlawful in the
place where it was committed
2.
Need not be actionable there-it is not necessary that the wrong should have been actionable where
committed, it is sufficient of it is unlawful.
3.
It should not be a tort of purely local nature-the act complained of must not be a tort of purely local
nature, such as trespass.
4.
The act should be an actionable wrong at the place of suit.

Trespass to person- False imprisonment

a.
b.
1.

2.

1.
2.
3.
1.
2.
3.
4.

Definition-false imprisonment may precisely be defined as an imposition of total restraint upon the liberty
of a person for any period, however short, without sufficient lawful justification.
In an action for damages for this tort, the plaintiff should prove
his imprisonment
that it was caused by the defendant or his servant acting in the course of employment
Ingredients
There should be total restraint of plaintiffs liberty-in order to constitute false imprisonment, duration
of retention is immaterial. There should be total deprivation of liberty and not just partial liberty.
Bird v Jones-explain
It should be without any lawful justification-It is necessary to prove that the detention is unlawful and
without any justification
Remedies
Self help-he has the right to get himself freed by using reasonable force
Habeas corpus-best remedy to procure release
Action for damages-may claim for mental disgrace and humiliation also
Defences
Parental or other authority-the parent or guardian may restrain the liberty of their wards to a certain
extent
Where the plaintiff is lunatic , insane or suffering from some serious mental disease
Judicial authority-where a person is imprisoned by a judicial authority, no action will lie
Public official-certain public persons are authorized to arrest individuals in certain circumstances-no
action lies

Assault and Battery

1.
2.
3.

Assault
Assault is an act of the defendant which causes to the plaintiff reasonably apprehension of the infliction of a
battery on him by the defendant.
Ingredients
that there was some gesture or preparation which constituted a threat or force
that the gesture or preparation was such as to cause a reasonable apprehension of force
that there was a present ostensible ability on the defendants part to carry out a threat into execution
immediately
Stephens v Mayers-explain
Battery

1.
2.
1.

Battery consists of touching another person hostily or against his will, however slightly.
Ingredients
the use of force to him, either to his body or bringing an object in contact with his body.
that the use of force was intentional, that is without any lawful justification.
Distinction
Assault-mere force of physical violence is enough is necessary
Battery-physical contact
2.
Assault-it is an attempt at battery
Battery-in includes assault

Defamation
Distinction b/w libel & slander
Libel
1. both tort as well as crime
2. in all cases actionable per se,i.e it is not
necessary to prove special damage
3. written defamation
4. shows greater deliberation and raises a
suggestion of malice
5. the actual publisher may be innocent and
thus not liable
6. in England, under the Statute of
Limitation and action of libel is barred after
6yrs
1 yr in India

Slander
Only civil wrong
It is actionable only on proof of special damage except in
exceptional cases
Spoken or oral
May be uttered in the heat of the moment and under sudden
provocation
In every case of republication of a slander, the publisher acts
consciously and voluntarily and must necessarily be guilty
2yrs in England
1yr in India

Torts
Introduction-the term tort has been derived from the Latin term tortum which means to twist. It means
twisted, crooked, unlawful or a wrongful act rather than an act which is straight or lawful.
Tort may be defined as a civil wrong which is repressible by an action for unliquidated damages and which is
other than a mere breach of contract or breach of trust
Definition-Salmod- it 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.
Thus it may be observed that
1.
tort is a civil wrong
2.
this civil wrong is other than a mere breach of contract or breach of trust
3.
this wrong is redressable by an action for unliquidated damages.
Essentials
1.
Act or omission-in order to make a person liable, he must have either done some positive act or made
an omission in the performance of his legal duty.
Example of positive acts-entering on the land of another without justification (tort of trespass) or publishing
a defamatory statement(tort of defamation)
Example of omission-omission to cover a trench may make a person liable if somebody falls into it and gets
injured.
2.

Legal damage-to be successful in an action for tort, the plaintiff has also to prove legal damage. Unless
there is a violation of legal right, an action under the law of torts cannot lie.
Where there is a violation of a legal right, it is actionable even without the proof of any damage (injuria sine
damno).
But where there is no violation of a legal right, no action lies even though damage may have been caused to
the plaintiff (damnum sine injuria).
Injuria Sine damno-explain 20,21 Bangia
Damnum sine injuria-explain-explain-608 Bangia
Law of tort or torts-607 Bangia

Origin in India
In India the term tort has been in existence since pre-independence era. The Sanskrit word Jimha, which
means crooked was used in ancient Hindu law text in the sense of tortious of fraudulent conduct.
However, under the Hindu law and the Muslim law, tort had a much narrower conception than the tort of
the English law. The punishment of crimes in these systems occupied a more prominent place than
compensation for wrongs. The law of torts in India presently, is mainly the English law of torts which itself
is based on the principles of the common law of England. However the Indian courts before applying any
rule of English law can see whether it is suited to the Indian society and circumstances. It may apply it
either entirely or with appropriate modifications. The application of the English law in India has therefore
been a selective application.
The prominent Indian cases that have involved tort claims areUnion Carbide Corporation v UOI(Bhopal Gas Tragedy Case)
M.C.Mehta v UOI (Oleum Gas Leak Case)
Difference between tort & contract
1. A tort is inflicted against or without consent; a contract is founded upon consent.
2. In tort no privity is needed, but it is necessarily implied in a contract.
3. A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of
contract is an infringement of a right in personam( right available against some determinate person or body).
4. Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.
5. In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a
breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the
parties
Difference between crime and tort
1. Tort is an infringement or privation of private or civil rights belonging to individuals. They are of
comparatively less serious. Whereas crime is a breach of public rights and duties which affect the whole
community.
They
are
more
serious
in
nature.
2. In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in
the
interest
of
the
society.
3. Since tort is considered to be a private wrong , the injured party himself has to file a suit as a plaintiff. In
the case of crime, even though the immediate victim is an individual, the criminal wrong is considered to be a
public wrong and thus the criminal proceedings are brought against the wrong doer by the State and not the
injured
party.
4. In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as
a part of punishment. Thus the primary purpose of awarding compensation in a criminal prosecution is punitive
rather
than
compensatory.
5. The damages in tort are unliquidated and in crime they are liquidated .

Strict liability

Rules of Strict and Absolute Liability are based on the concept of No fault liability. At times a person may be
held responsible for some wrong though there was no negligence or intention on his part to do such wrong.
This rule was laid down by the House of Lords in Rylands v Fletcher and hence it is also commonly termed as
the Rule in Rylands v Fletcher.
Rylands v Fletcher-facts-explain

The ingredients of the Rule of Strict Liability are:

1. Some hazardous thing must be brought or collected by the defendant on his land . the thing
collected should be capable of doing mischief by escape. The rule has been applied to water, gas,
poisonous plants, sewages, explosive, noxious fumes, etc
2. There must be an escape of such thing from that land. the thing causing the damage must escape
to the area outside the occupation and control of the defendant. If the damage is caused within the premises
when the defendant had collected the thing, the liability under the rule does not arise
3. There must be a non-natural use of the thing. collection of water in such a big quantity in
Rylands v Fletcher was held to be a non-natural use of land. Keeping water for domestic purpose is a
natural use. Fire in a house in a grate is an ordinary, natural, proper, everyday use of the fireplace in the
room and if this fire spreads to the adjoining premises, the liability under the rule cannot arise.

Exceptions to the Rule of Strict Liability

1. Plaintiffs own default-If the escape of the hazardous good was due to plaintiffs own fault or negligence
2. Vis Major or Act of God -is a good defense in an action under the Rule of Strict Liability. Nicholas v
Marsland
3. Act of third party-if the harm has been caused due to the act of a stranger, who is neither the defendants
servant or agent nor the defendant has any control over him, the defendant will not be liable under the rule.
4. Consent of the plaintiff-in case of volenti non fit injuria, i.e. where the plaintiff has consented to the
accumulation of the dangerous thing on the defendants land, the liability under the rule does not arise.
5. Statutory authority-an act done under the authority of a statute is also a defence when an action under this rule
is brought.
In India, this rule was formulated in the case of M.C. Mehta v Union of India (1987), wherein the Supreme
Court termed it as Absolute Liability This rule was also followed in the case of Indian Council for EnviroLegal
Action
v
Union
of
India
(1996)
Section 92A of the Motor Vehicles Act, 1938 also recognises this concept of liability without fault
This rule is more stringent than under the Strict Liability rule and also not subject to the rule in Rylands v
Fletcher.
Oleum gas case-facts-there was a leakage of oleum gas from one of the units of Shriram Food and Fertiliser
Industries in the city of Delhi in December 1985, resulting in the death of an Advocate and resulting in
casualties to various other persons. There was a claim of compensation through a writ petition filed in the SC by
way of PIL.
The Court found that victims of the leakage of dangerous substances could not be provided relief by applying
the rule of Strict Liability because of the various exceptions to the rule. In this background the SC evolved the
new rule absolute liability.
According to this rule, when an enterprise is engaged in a hazardous or inherently dangerous industry which
poses a potential threat to the health and safety of persons, it owes an absolute and non-delegable duty to ensure
that no harm results to anyone from such activity.

Volenti non fit injuria

Harm suffered voluntarily does not constitute a legal injury and it is not actionable. This principle is
embodied in the maxim 'volenti non fit injuria' (where the sufferer is willing no injury is done).
A man cannot complain of harm to the chances of which he gas exposed himself with knowledge and of his
free will. The maxim is founded n good sense and justice.
One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain
of it as a wrong. The maxim presupposes tortious act by the defendant.
The maxim applies firstly, to intentional acts which would otherwise be tortious. It can be understood with the
help of the following cases.
In Ilott v. Wilkes, a trespasser having no knowledge that there are spring guns in a wood, although he was
ignorant of exact spots they were placed, stepped on the wire communicating with the gun and suffered injuries.
It was held that he cannot maintain an action for injury received.
However, in Bird v. Holbrook, a person who climbed over a wall in pursuit of a stray fowl and was shot by a
spring gun set without notice could recover damages.
The principle underlying this maxim is illustrated in common life in many circumstances. As such it protects
a surgeon who amputes a limb, a football player, a boxer etc so long as they play fairly in the game.
The application of the maxim is not dependent upon any valid contract but upon the competence of the
decision making capacity of the person at the time consent was given.
In Gillick v. West Norfolk and Wisbeck Area Health Authority, the House of Lords held that a girl under 16
did not, merely by reason of her age, lack legal capacity to consent to a contraceptive advice and treatment by a
doctor.

The maxim applies secondly to consent to run the risk of harm which would otherwise be actionable. Thus
knowledge of the risk and voluntary encounter of the same is a conclusive defence.
Exceptions
1) No consent- no leave or license- can legalize an unlawful act.
2) The maxim has no validity against an action based on a breach of statutory duty
3) The maxim does not apply where the plaintiff has under a crisis caused by the defendant taken the risk.
4) The maxim does not apply to cases if negligence.
5) The maxim does not apply where the defendant was under a duty to prevent the very act on which his
defence is based.
In Haynes v. Harwood, where the police constable sustained injuries trying to stop defendants runaway
horses attached to a van he was held entitles to damages.
In Dann v. Hamilton, where an old lady travelled in a car knowing that the driver was drunk and was injured
because of an accident she was held entitled for damages as it was a case if negligence.

Slander of title
Slander of title consists of a false, malicious statement in writing, printing, or by word of mouth, injurious to
any person's title to property, whether movable or immovable, and causing special damage to that person.
The plaintiff in order to sustain the action must essentially prove that1) The statement is false- its for the plaintiff to prove its true not for the defendant to prove its false.
2) The statement was made malafide and malicious, with an intent to injure the plaintiff or with some indirect
or dishonest motive.
3) The words defeat or injure his title to property. The property may be real or personal; the plaintiffs interest
therein may be possession or reversion.
In England special damage need not be proved if
A) The words calculated to cause pecuniary damage and are published in writing or other permanent form.
B) If words are calculated to cause pecuniary damage in respect of his office, profession, calling, trade or
business held and carried on by him at the time of publication.
Under Indian law it is necessary to prove special damage.
In Marsh v. Billings, the defendants, coach owners, without authorization used the name of a hotel on their
coaches and drivers caps as to suggest they were authorised and employed by the hotel-keeper to ply between
hotel and the railway station. It was held as dishonest when the plaintiffs were the authorized coach owners.

Maintenance and champerty

Maintenance is the officious assistance by money or otherwise proffered by a third person to either party to a
suit, in which he himself has no legal interest to enable them to prosecute or defend it. The essence of the
offence is intermeddling with litigation in which the intermeddler has no concern.
Champerty on the other hand may be explained as the bargains for a share of the result to be ultimately
decreed in a suit in consideration of assisting in its maintenance. Every champerty is maintenance, but every
maintenance is not champerty, for champerty is the species of maintenance which is the genus.
In two cases the maintenance of a suit is lawful1) Where the person maintaining has an interest in the subject-matter of the action.
2) Where the maintainer assisted the third person from charitable motives.
Thus the law of maintenance is confined to cases where a man improperly and for the purpose of stirring up
litigation and strife encourages others to bring action or to make defence which they have no right to. An action
for damages for maintenance will not lie in the absence if proof of special damage.
The doctrine is not applicable to criminal proceedings as every member of public may set criminal law in
motion and he will not be liable unless prosecution is malicious.
In Bradlaugh v. Newdegate the defendant who was a member of the Parliament procured a person by
financial means to sue the plaintiff who was voted and sat as a Member of the Parliament without taking oath
subscribed by the statute. It was as maintenance and the defendant was liable.
Maintenance and champerty have been abolished as crimes and torts in England.

Indian law
There is no specific law relating to MnC in India. But if it is against good policy and justice, tending to
promote unnecessary litigation, something in legal sense is immoral and constituted with a bad motive, such
agreements will be void.

Remedy for adultery

An act of adultery by a person against the wife of another is actionable in the same manner as enticement and
seduction.
It was held by the madras high court in Rajlingam v. Lingaiya that damages for adultery may be claimed by
the husband against his wife in a petition for divorce filed under section 5 of the Hindu marriage act.
However, where the person charged for adultery proves before the court that he had no knowledge about the
women being married; he will not be liable for damages.
Though adultery is an offence under section 497 of IPC is punishable with imprisonment which may extend
upto 5 years or fine or both in India but, in England it is only a civil wrong for which civil wrongs may be
claimed
The measures of damages is decided keeping in view
1. The mutual relationship between husband and wife and love and affection between them
2. The immorality of the wife, if any
3. The conduct of the defendant, whether it amounts to betrayal of trust and confidence reposed in him.

Actio personalis moritur cum persona

A plaintiff may exercise his vested right of action which depends upon establishing a legally recognized harm
and plaintiff's claim for appropriate remedy.
A vested right of action comes to an end under certain circumstances, one of which is death.
The common law maxim is actio personalis moritur cum persona- a personal right if action dies with the
person. At common law, if an injury were done either to the person or to the property of another, for which
damages only could be recovered as satisfiction, the action died with the person to whom, or by whom, the
wrong was done.
In Official Liquidator of Supreme Bank Ltd v. P.A.Tendolkar, the SC pointed out that the maxim was an
invention of English common lawyers and observed: it seemed to have resulted from the strong quasi criminal
nature of the action of trespass. Just like a prosecution for criminal offence, the action for trespass, the parent of
much of our modern law on torts was held, by applying this maxim, to be incapable of surviving the death of the
wrong doer and also of the party injured.
Further at common law, no one can recover damages for the death of another. This is known as the rule in
Baker v. Bolton- "in a civil court the death of a human being could not be complained of as an injury". In this
case the plaintiff and his wife were passengers on top of the defendant's coach, which was overturned by
negligence of defendants. The plaintiff was much bruised and his wife was so severely injured that she died
about a month after. It was held that the plaintiff was entitled to damages for the bruises sustained by him and
for the loss of his wife only till the moment of her death.
Exceptions
In course of time number of exceptions have been recognized to the maxim. These exceptions are if two types
I) Common law exceptions
II) Statutory exceptions
I) Common law exceptions
1) Actions on contracts- the maxim did not apply in cases of actions on contract. The common law recognised
that an action on contract neither does nor extinguish with the death of either party.
2) Wrongful appropriation of another's property- the maxim also does not apply where the deceased person had
wrongful appropriated the property of another. It is sufficient that the tort feasor's estate is benefitted from the
wrong done.

In Philips v. Homfray, the defendants who worked in plaintiff's coal mine had taken some coal. It was held that
action could be continued against their representatives for the value of coal wrongfully taken.
3) If the suit had ended in a decree for damages in favour of plaintiff, further proceeding by appeal, revision or
otherwise will on abate on the death of either party.
II) Statutory exceptions
Statutory exceptions have been provided by a number of statutes such as the Civil Procedure Code, Fatal
Accidents Act, Employers Liability Act, Workmens Compensation Act etc. But the most important is the Law
Reforms (Miscellaneous Provisions) Act
1) The Act has all together abolished the rule of actio personalis moritur cum persona. Under this Act, on the
death of any person all causes vested in him shall survive for the benefit of his estate. The exceptions are
defamation, seduction, inducing one spouse to leave or remain part from the other and claim for damages for
adultery.
In Flint v. Lovell, a man was injured due to negligence of the defendant. As a result of the injuries his life
expectation came down. The court awarded damages for shortening of the expectation of life as a separate head
of damage. This was followed in Rose v. Ford, where the plaintiff, father and administrator of the estate of his
daughter claimed damages on behalf of his daughter who died in car collision because of the negligence of the
defendant. He was entitled to recover damages.
2) The rule in Baker v. Bolton was overturned by the Fatal Accidents Act. The dependants who are specified in
the Act are entitled to recover damages when the death of the plaintiff is caused by the wrongful act of the
defendant.
Application in India
3) The three principal Acts which can be mentioned as exceptions to this rule are- Legal Representatives Suits
Act, Fatal Accidents Act and Indian Succession Act.

Trespass to immovable property

Trespass in its widest sense, signifies any transgression or offence against the law of nature, of society, or of
the country, whether relating to a man's person or to his property.
The two most obvious forms of trespass are1) Trespass to goods
2) Trespass to land

Trespass to land
To constitute a wrong of trespass neither force, nor unlawful intention, nor actual damage, nor the breaking of
an enclosure is necessary. Every invasion of private property, however minute, is a trespass.
Trespass to land is an offence under section 441 of the IPC.
Constituents
Trespass may be committed1) By entering upon the land of the plaintiff.
2) By remaining there.
3) By doing an act affecting the sole possession of the plaintiff, in each case without justification.
1) Entry is essential to constitute trespass. A man is not liable for trespass committed involuntarily, but he is
liable if the entry is intentional, even though made under a mistake.
In Kickman v. Maisey, the plaintiff possessed land abutting the highway, a portion of which he had agreed
with a horse trainer to use for training and trial of race horses. The defendant, proprietor of a publication
company which gave accounts of the doings of the race horses in training, walked backwards and forwards on a
portion of highway for about one n half hours watching and taking note of trial horses on plaintiff's land for
which he was held to have trespassed as he exceeded the ordinary and reasonable user of highway.
2) If a person who has lawfully entered on the land of another remains there, after his right of entry has
ceased, he commits trespass.
3) Every interference with the land of another, for ex, throwing of stones on neighbour's land, is deemed
constructive entry and amounts to trespass.
Aerial trespass

The owner of the land is entitled to the column of air space above the surface ad infinitum. The ordinary rule
is that whoever has got the site, is the owner of everything up to the sky and down to the centre of the earth.
In Pickering v. Rudd, it was held that invasion of air space above a person's land could not be trespass unless
there was some actual contact with the land.
However, this view was discarded in Kelsen v. Imperial Tobacco Company, wherein it was held that an
advertising sign board erected by the defendants on their own property which projected into the air space of the
plaintiff's single storey shop is a trespass.
In modern times the view has changed. The owner's right to air and space above his land is restricted to such
height as is necessary for the ordinary use and enjoyment of his land and the structures on it. Thus an aircraft
passing several hundred feet above which does not affect the owner in enjoyment of his land and structures does
not commit any trespass.
Under the Civil Aviation Act of England and Indian Aircrafts Act, the flight of an aircraft over any property at
a height above the ground having regard to wind, weather and other circumstances cannot be said to have
committed trespass or nuisance.
Continuing trespass
Where a person commits a trespass by putting things on the plaintiff's land and does not remove them the
trespass continues and a fresh cause of action arises.
The continuing trespass from day to day is considered in law a separate trespass on each day. Thus if a man
throws a heap of stones or builds a wall and leaves it there, an action will lie against him for trespass, the right to
sue will continue till the encumbrance is removed.
In Hudson v. Nicholson, the defendant made unjustifiable interference with the occupier of an adjoining land
by placing certain timbers there to support his house. Later the land was purchased by the plaintiff and he sued
the defendant for trespass for which he was liable.
In Holmes v. Wilson, the highway authorities made unjustifiable interference with the land of plaintiff by
wrongfully building buttresses on the land of plaintiff. He was held liable.
However, when something is lawfully on the land of another to begin with, mere omission to remove such
thing will not amount to trespass.
Trespass by animals
Trespass by cattle is treated in the same way as trespass by the man himself. If a mans cattle, sheep, or
poultry or any other animal trespass on anothers land, the owner of the animal is responsible for the trespass
and consequential damage, unless he can show that his neighbor was bound to fence and had failed to do so.
When such duty does not exist, the owner of cattle is liable for their trespasser even upon undisclosed land and
for all naturally resulting damage.
Distinction is drawn between animals which damage from their natural tendency which are required to be
usually restrained and animals which are not usually restrained. As such owners of dogs and cats are not
responsible for trespass. But liability for cattle trespass is strict irrespective of any negligence, provided there is
proof of damage done or expenses incurred.
In Anderson v. Buckton, the plaintiffs cattle were infected by trespassing cattle, belonging to the defendant,
with some contagious disorder. The defendant was held liable for the infection as well as injury to grass and
herbage.
In Hamps v. Darby, the plaintiff was a breeder of racing pigeons and the defendant was a farmer. Some of the
plaintiffs pigeons settled on defendants crop of peas and did damage. The defendant without firing a scaring
shot four of them and wounded the fifth. The plaintiff was held entitled for damages.

Trespass ab initio
Where a person enters upon the land of another under authority of law and is subsequently guilty of an abuse
of his authority, his misconduct relates back so as to make his original entry tortious, and he is liable in
damages, not only for the entry itself but all subsequent acts.
When entry, authority or license is given to anyone by law, and he abuses it, he becomes a trespasser ab initio.
In the leading Six Carpenters Case, six carpenters entered a tavern and bought and drank a quart of wine and
paid for the same. They further added for another quart of wine and bread. This order was also supplied but they
refused to pay for it. The question was whether this non payment made their original entry into the tavern also
unlawful. The court held that the men did not become trespassers ab initio, because there was a mere
nonfeasance in refusing to pay.
In course of its judgment the court laid down 3 points1.
That if a man abuse his authority given by law, he becomes a trespasser ab initio.

That in an action of trespass, if the authority is pleaded, the subsequent abuse may be replied.
That a mere non-feasance does not amount to such an abuse as renders a man trespasser ab initio.
In Elias v. Pasmore, in order to affect the arrest of a person, the defendants, police officers, entered the
plaintiffs premises and carried away documents found on the premises. Amongst the documents there were
some which constituted evidence on the trial of the person arrested and others which did not so constitute were
returned. In an action for trespass ab initio it was held that they were trespassers ab initio as to the documents
which were seized and returned and not for the entry for the purpose of arrest.
The rule has lost much of its importance in the recent times and has limited application. In Chic Fashions
(West Indies) Ltd v. Jones, the plaintiffs shop was searched by police officers for certain stolen goods. They
had obtained necessary warrant to do so. No stolen goods were found there but they mistakenly seized some
goods believing it to be stolen. It was held that they were not liable as the seizure of goods was lawful and the
doctrine of trespass ab initio did not apply.
The court in its judgment criticized the rule of trespass ab initio because it was contrary to the rule that an act
which was lawful when done could not become unlawful by a subsequent event. Lord Denning went to the
extent of remarking that the doctrine is no more a good law.
But this seems to be extreme view as still in some cases like protection of mans personal land against the
abuse of official power, where the doctrine still applies.
2.
3.

Defences- Trespass to land

The following defences may be available in an action for trespass.
1) Prescription- A defendant may plead that he was justified by reason of prescription as by showing a common
right of way over the land.
Thus, the parking of a car of a tenant in the compound of the building cannot be trespass.
2) Leave and license- A license makes an act lawful, which without it will be unlawful. It is a voluntary
suspension of the licensor's right to treat certain acts as wrongful. For ex, to hunt on his land.
3) Authority of law- Entry may be for the following purposes- Execution of legal process, distress etc.
Semaynes case which is the leading authority on this subject
4) Act of necessity- When trespass is committed for an act of necessity such as putting out fire for public safety,
defence arrangements etc it is a good defence.
5) Self-defence- A trespasser may be excused as having been done in self defence or in defence of man's goods,
chattels or animals.
6) Re-entry on land- An owner who has been wrongfully dispossessed may re enter on his land and if he does
so, he cannot be sued for trespass by the person who has been wrongfully there.
7) Abatement of nuisance- an occupier of the land may, after previous notice, enter upon another's adjoining
land for the purpose of removing a nuisance upon it.
8) Easement rights- a grantee of an easement may enter upon the servient tenement in order to do necessary
repairs.
9) Re-taking of goods and chattels- if a person takes away the goods of another upon his own land, he gives the
owner of them an implied license to enter for the purposes of reception.

1.
-

Explain Contributory Negligence With Cases?

When the plaintiff by his own
contributes to the damage caused by the negligence or wrongful conduct of the
defendant, he is considered to be guilty of contributory negligence.
This is a defense in which the defendant
has to prove that the plaintiff failed to take reasonable care of his own safety and what

was a contributory factor to the harm suffered by plaintiff. Ex: If A, going on the wrong
side of the road, is hit by a vehicle coming from the opposite direction and driven rashly
by B, A can be met with the defense of contributory negligence on his part.
To be guilty of contributory negligence, the plaintiff should not have acted like a
prudent man would have taken in similar situation, there is no contributory negligence. In
Sushma Mitra VS- Madhya Pradesh State Road Transport Corporation AIR 1974,
the plaintiff was travelling in a bus resting her elbow on a window grill. The bus at that
time was moving on a highway. She was injured when hit by a truck which was coming from
opposite direction. When sued for injury, the defendant took the plea that the act of
resting elbow on a window grill was an act of contributory negligence. The MP HC did not
allow this defense. It was held that as she acted like a reasonable passenger, while the
bus on the highway, she was entitled to claim compensation.
Defense Of Contributory Negligence:
This rule worked a great hardship particularly for the
plaintiff because for a slight negligence on his part, he may lose his action against a
defendant whose negligence may have been the main cause of damage to the plaintiff. The
Courts modified the law relating to contributory negligence by introducing the rule of
Last Opportunity or Last Chance.
This rule was laid down in Davies VS- Mann, 1882. In this
case, the plaintiff fettered the fore-feet of his donkey and left it on a narrow highway.
The defendant was driving his wagon driven by horses too fast that it negligently ran over
and killed the donkey. In spite of his own negligence, the plaintiff was held liable to
recover because the defendant had the Last Opportunity to avoid the accident.
Doctrine Of Appointment:
The rule of last opportunity was unsatisfactory because the
party, whose act of negligence was earlier, altogether escaped the responsibility and
whose negligence was subsequent was made wholly liable.

In Admirality Commissioners VSS.S.Volute, a collision had occurred between the Merchant ship volute and the Destroyer
Radstock. The Volute was at fault in changing the course without giving proper signal and
the Radstock was at fault in increasing her speed although she had the knowledge of the
danger caused by the change of course of the volute. It was held that both the ships were
responsible for the collision even though the last opportunity for avoiding the collision was
with Radstock and the liability to make good the loss would be in proportion to the degree
in which each vessel was in fault.
The same rule has also been followed in India. In Vidya Devi
VS- M.P. Road Transport Corporation, 1974, a motor cyclist driving negligently
dashed against a bus and died in the accident. The driver of the bus was also found to be
negligent in not keeping a good look out so as to avoid a possible collision. It was held that
between the decreased motor cyclist and the driver of the bus, the blame was in the
proportion of two-third and one-third and as such, the plaintiff was entitled to damages
to the extent of one-third of what he would have been entitled to if the decreased was
not negligent.
Rules To Determine Contributory Negligence:
Whether there is contributory negligence or
not has to be determined by the following rules:

2.
-

Negligent of the plaintiff in relation to the defence of contributory negligence does not have
the same meaning as is assigned to it as a tort of negligence. What has to be proved is that,
plaintiff did not take due care of his own safety and thus contributed to his own damage.
It is not enough to show that the plaintiff did not take due care of his own safety. If the
defendant`s negligence would have caused the same damage even if the plaintiff had been
careful and the plaintiff`s negligence is not the operative cause of the accident, the defence
of contributory negligence cannot be pleaded.

Nuisance. Kinds Of Nuisance?

Public Nuisance:

There are two categories of nuisance. They are:

A public nuisance besides being a tort is also a crime while a private

nuisance is only a tort. Public nuisance is one which materially affects the reasonable
comfort and convenience of life. The question whether the number of persons
affected is sufficient to constitute a sizeable class is one of fact in each case. For ex.
A malicious bomb hoax call may be treated as a public nuisance.
Where the activities like
quarrying, blasting, stones projected from quarry, noise, vibrations etc. affects the
public and it will be actionable as a public nuisance.
When there existed a public nuisance
in a locality due to open drainage, heaps of dirt, pits and public excretion of human
beings, the Court ordered the Municipality under Sec 123 of the Municipality Act to
take affirmative action to remove the course of public nuisance. (Municipal Council,
Ratlam VS- Virdhi Chand, AIR 1967).
Public nuisance is an interference with the
rights of public in general and is punishable as an offence. Obstructing a public road by
digging a trench or constructing structures on it are examples of public nuisance.
Undoubtedly, such obstructions may cause inconvenience to several persons who pass
through that road. In order to void this law makes public nuisance an offence under
Section 268, IPC.
In Benjamin VS- Storr, 1874, it was held that acts incidental to
use of highway like loading or unloading of goods in front of a go down or a shop or
making the cart, van or carriage stand in front of premises for picking up passengers
or allowing them to get down would not amount to obstruction for the purpose of
nuisance if it is done promptly for a short time. In the instant case the horse-carts
and horses were made to stand in front of the plaintiff`s house for long hours which
caused foul smell and obstructed sunlight entering his house. The defendants were,
therefore, held liable and were restrained to continue nuisance by an injunction order.

Private Nuisance:
Private nuisance is the using or authorizing the use of one`s property, or of
anything under one`s control, so as to injuriously affect an owner of the property by physically
injuring his property or affecting its enjoyment by interfering with his health, comfort or
convenience.
Private nuisance are of three kinds:
o
Nuisance by encroachment on a neighbor`s land.
o
Nuisance by a direct physical injury to a neighbor`s land.
o
Nuisance by interference with a neighbor`s enjoyment of his land.

Private nuisance
include acts leading to (a) wrongful disturbance of easements, ex: obstruction to light
and air; or (b) wrongful escape of substance into another`s property, such as smoke,

smell, fumes, gas, noise, water, heat, etc. The forms of this are innumerable. In fact
the law recognizes that a man may use his own land so as to injure another without
committing a nuisance. It is only if such use is unreasonable that it becomes unlawful.
Reasonableness plays an important part in determining whether or not there has been
a nuisance.
Private nuisance in contrast to public nuisance is an act affecting some
particular individual or individuals as distinguished from the public at large. A right to
commit a private nuisance may be acquired by prescription as an easement.

DECEIT
Fraud may be defined as a false representation made knowingly or without belief in its truth or recklessly
or carelessly whether it may be true or not.
In an action of deceit, the following essentials are required to be proved.
1.
A false representation or statement of fact-the first essential to be proved in an action for
deceit is that the defendant made a false statement or representation. It may be oral, written or
implied from the conduct of the defendant.
Mere silence or non-disclosure constitutes fraud1.
non-disclosure of a part of truth
2.
active concealment
3.
leaving a statement uncorrected after coming to know that it is false.
1.
The intention to make the plaintiff act upon the representation-the statement or
representation must be made with the intention that it should be acted upon by the plaintiff.
In Langridge v Levy, the father of the plaintiff purchased a gun from the defendant. He had it clear
that the gun was being purchased for the use of his son. The seller knew that the gun was defective but
falsely represented it to be sound. The plaintiff was injured when the gun burst. The defendant was held
liable.
1.
The plaintiff must rely and act upon the representation-in order to constitute an actionable
deceit, the plaintiff must rely and act upon the representation. If the plaintiff does not rely or has
not been misled by the representation, the defendant will not be liable.
I.T.C Ltd v Phurba Lama-in an action of deceit, one of the several ingredients which must be shown
to be present is that the plaintiff must have acted on the representation and while so acting must have
suffered harm in consequence. A mere attempt to deceive is not actionable.
1.
Damage to the plaintiff-it is also necessary to prove that by acting upon the representation made
by the defendant, the plaintiff suffered damages. If the defendant merely makes an attempt to
deceive the plaintiff but the plaintiff suffers no damages, it will not constitute an actionable deceit.
2.
Knowledge of the falsity of the representation or statement-lastly, the plaintiff must prove
that the defendant made the statement with the knowledge that it was false or in the absence of any
genuine belief that it is true.
Derry v Peek (explain)-if a statement is made with the honest belief that it is true, it cannot be called
deceit even though it may subsequently prove to be false.

Defamation
Defences
1.
Justification or truth-in a civil action for defamation, truth of the defamatory matter is
complete defense. The reason for this defense is that the law will not permit a man to recover
damages in respect of an injury to a character which he either does not or ought not to possess. The
defense is available even though the publication is made maliciously. If the statement is substantially
true but incorrect in respect of certain minor particulars, the defense will still be available.
2.
Fair comment-making fair comment on matters of public interest is a defense to an action for
defamation. For this defense to be available, the following essentials have to be fulfilled-

It must be a comment-comment means an expression of opinion on certain facts. It should

be distinguished from making a statement of fact.
Example- A says of a book published by Z-Zs book is foolish: Z must be a weak man.
These are comments made based on Zs books and A will be protected
b.
The comment must be fair-the comment cannot be fair when it is based upon untrue
facts. A comment based upon invented and untrue facts is not fair.
If the facts are substantially true and justify the comment of the facts which are truly
stated, the defense of fair comment can be taken even though some of the facts stated
may not be proved.
c.
The matter commented upon must be of public interest-administration of govt.
departments, public companies, courts, conduct of public men like ministers or officers of
State, public institutions and local authorities, public meetings, pictures, theatres, public
entertainments, text books, novels, etc are considered to be matters of public interest.
3.
Privilege-there are certain occasions when the law recognizes that the right of free speech
outweighs the plaintiffs right to reputation: the law treats such occasions to be privileged and a
defamatory statement made on such occasions is not actionable.
Absolute Privilege-in matters of absolute privilege, no action lies for the defamatory statement even
though the statement is false or has been made maliciously.
1.
Parliamentary proceedings- our Constitution provides that
a.
statements made by a member of either House of Parliament I Parliament, and
(ii) the publication by or under the authority of either House of Parliament of any report,
paper, votes or proceedings, cannot e questioned in a court of law.
b.
Judicial proceedings-no action for libel or slander lies, whether against judges, counsels,
witnesses or parties for words written or spoken in the course of any proceedings before any
court recognized by law, even though the words written or spoken were written or spoken
maliciously, without justification or excuse.
b.
State communications-a statement made by one officer of the State to another in the
course of official duty is absolutely privileged for reasons of public policy. Such privilege
extends to reports made in the course of military and naval duties.
Qualified Privilege-in certain cases, the defense of qualified privilege is also available. Unlike the defense
of absolute privilege, in this case it is necessary that the statement must have been made without malice.
For such a defense to be available, it is further necessary that there must be an occasion for making the
statement. Generally, such a privilege is available either when the statement is made in discharge of a duty
or protection of an interest, or the publication is in the form of report of parliamentary, judicial or other
public proceedings.
1.

1.

Statements should be made in discharge of a duty or protection of an interest-the occasion when

there is a qualified privilege to make defamatory statement without malice are either when there is
existence of a duty, legal, social or moral to make such a statement or, existence of some interest for
the protection of which the statement is made.
Example- A, a Magistrate, in making a report to his superior officer, casts an imputation on the
character of Z. Here, if the imputation is made in good faith and for public good, A is within the
exception.
2.
The statement should be without malice-in the matters of qualified privilege, the exemption from
liability for making defamatory statement is granted if the statement was made without malice.
The presence of malice destroys this defen

All persons are liable to be sued. Explain with exceptions

The general rule is that all persons have the capacity to sue and be sued in a tort. This rule is, however,
subject to certain exceptions in respect of certain categories of persons.
1) Convicts and persons in custody
(English law)- In England, a convict whose sentence was in force and unexpired, and who was not
"lawfully at large under any license" could not sue for an injury to his property or for recovery of his debt.

This disability is removed by the Criminal Justice Act, 1948. Now, a convicted person, in spite if his
imprisonment, retains all civil rights which are not taken away expressly or impliedly. A convict can,
therefore, sue for wrongs to his person and property like any other citizen.
(Indian law)- the Indian law is the same. Convicts are not by mere reason of the conviction, denuded of
all fundamental rights which they otherwise possess. The Consti guarantees that a person shall not be
deprived of his life or personal liberty except according to procedure established by law. In Sunil Batra v.
Delhi Administration, the SC held that the conviction of a person, does not draw by iron curtain between
him and his rights and he is not reduced to a non-person.

2) Alien enemy
(EL)- An alien enemy cannot sue. He cannot maintain an action except when duly licensed or by an Order
in Council, or unless comes into the British Dominions under a flag of truce, a cartel, a pass or some other
act of public authority putting him in the King's peace.
(IL)- An alien enemy, residing in India with the permission of Government of India, may sue as if he is an
Indian subject. An alien enemy residing outside India or within India without the permission of Government
of India cannot sue in Indian courts at all.
3) Husband and wife
At common law there was neither disability nor immunity in the law of torts.
Actions between spouses- A married woman could not sue her husband and the husband could not sue
her for any tort committed by one against the other. After the enactment of the Law Reform (Husband
and Wife) Act, 1962, each of the parties to a marriage has the same right of action of tort against the
other as if they were not married.
Liability do third persons- a married woman could not sue for any tort committed by a third person
unless her husband joined with her as plaintiff. She could also not be sued for a tort committed by her
unless her husband was made a defendant. These anomalies have been removed by the Married Women's
Property Act and the Law Reform (Married Women and Tortfeasors( Act. A married woman can now sue
for any tort committed by a third person and can also be sued for any tort committed by her without
joining her husband who cannot be made liable or made party to a suit simply because he is the husband.

4) Corporation
A corporation is a legal person.
Suits by corporation- a corporation cannot maintain an action for personal wrongs such as assault and
false imprisonment. Secondly in cases of defamation, a Corp can sue only if it affects the corporation
itself and not its members. Thus it can sue for malicious presentation of a winding up petition or a libel
charging it with insolvency or with dishonest or incompetent management.
Suits against corp- a Corp is liable for torts committed by its agents or servants as much as a principal
is liable for the torts of his servant. It may thus be liable for assault, false imprisonment, trespass,
conversion, libel, or negligence.