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AL-AMEEN COLLEGE OF LAW

LAW OF TORTS

MODEL ANSWER PAPER 2019-20

Duration: 3 Hours
Max. Marks: 80
Instructions:
1. Answer all five Units.
2. One essay type question and one short note/ problem is compulsory from each Unit.
3. Figures to the right indicate marks.
4. Answer should be written either in English or in Kannada completely.
Unit 1

1. Define tort and bring out all the essentials of torts with illustration. Distinguish
between tort and crime, tort and contract. (10 Marks)

The word tort is a Latin word ‘tortum’ which means ‘twisting out’ and in popular sense
it implies conduct which is twisted or unlawful. A tort is simply a civil wrong.Torts are
wrongdoings that are done by one party against another. As a result of the wrongdoing, the injured
person may take civil action against the other party. To simplify this, let's say while walking down
the aisle of a grocery store, you slip on a banana that had fallen from a shelf. You become
the plaintiff, or injured party, and the grocery store is considered the tortfeasor or defendant, the
negligent party. Simply said, you would probably take civil action against the grocery store to
recoup compensation for pain, suffering, medical bills and expenses incurred as a result of the fall.

Tort can be said to be a wrongful act, not including a breach of contract or trust, that
results in injury to another’s person, property, reputation, or the like and for which the injured
party is entitled to compensation.

According to Dr. Winfield, “Tortuous liability arises from the breach of a duty primarily
fixed by law; this duty is towards persons generally and its breach is redressable by an action for
unliquidated damages.”
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Thus in simple terms, tort is a civil wrong or breach of a duty to another person on which
courts, based on fault, impose liability and it is mainly concerned with providing compensation for
personal injury and property damage caused by negligence.

There are certain conditions which must exist before a person is held liable in tort. The
conditions or elements are as follows:

i. Wrongful act-In case of tort there must be a wrongful act or omission on the part of defendant.
The wrongful act is an act which is done without any lawful justification. The act of the
defendant becomes wrongful only when there is violation of legal rights. If the act complained
of does not violate legal right of another person, it is not a tort. Thus in tort the plaintiff has to
prove that his legal rights have been violated by the act of the defendant.
ii. Legal damage-In general, a tort consists of some act done by a person who causes injury to
another, for which damages are claimed by the latter against the former. The word damage is
used in the ordinary sense of injury or loss or deprivation of some kind. [Whereas damages
mean the compensation claimed by the injured party and awarded by the court.]

The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine
Injuria and Injuria Sine Damnum.

• Damnum Sine Injuria- ‘damnum’ means damage in the form of money, comfort or health,
‘injuria’ means violation of legal rights and ‘sin’e means without. That means “actual loss
without legal loss”, economic loss or financial losses are actual loss which is not violating any
legal right and they are not actionable in tort. Example- Gloucester Grammar School Case-A
school master set up a revel school next to that B. Many students left the old established school
of B and got admission in the newly opened school of A. As a result B suffered a heavy loss
and filed a suit against A for damages. Court held that, “no suit could lie on the ground as bona
fide Competition can afford no ground of action whatever damage it may cause”. Every person
has a right to carry on his trade or profession in competition with others and if as a result of a
healthy business competition his rival suffers a loss then he is entitled to recover any
compensation. Acton v. Blundell, in which a mill owner drained off underground water running
into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial,
caused without the violation of some right.
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• Injuria Sine Damnum- That means “legal loss without actual loss”. Legal loss refers to
breach of private right, trespass etc. and its actionable in law of tort. Defendant is liable for
give damages. This means an infringement of a legal private right without any actual loss or
damage. In such a case the person whose right has been infringed has a good cause of action.
It is not necessary for him to prove any special damage because every injury imports a damage
when a man in hindered of his right. Every person has an absolute right to property, to the
immunity of his person, and to his liberty, and an infringement of this right is actionable per
se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is
sufficient to show the violation of a right in which case the law will presume damage. Thus
in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful
act is actionable without proof of special damage. The court is bound to award to the plaintiff
at least nominal damages if no actual damage is proved. This principle was firmly established
by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from
exercising his vote by the defendants, returning officers in parliamentary election. The
candidate for whom the plaintiff wanted to give his vote had come out successful in the
election. Still the plaintiff brought an action claiming damages against the defendants for
maliciously preventing him from exercising his statutory right of voting in that election. The
plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal
right vested in the plaintiff.
iii.Legal remedy -The law of torts is said to be a development of the maxim ‘ubi jus ibi
remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity
have a means to vindicate and maintain it and a remedy if he is injured in the exercise or
enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right
and want of remedy are reciprocal.

Difference between tort and crime:

The distinction between civil and criminal wrongs depends on the nature of the remedy
provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding
concerns with the enforcement of some right claimed by the plaintiff as against the defendant
whereas criminal proceedings have for their object the punishment of the defendant for some act
of which he is accused. Sometimes the same wrong is capable of being made the subject of
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proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in
such cases the wrong doer may be punished criminally and also compelled in a civil action to make
compensation or restitution.

Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the
appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance
is not a tort merely because the civil remedy of injunction may be available at the suit of the
attorney general, but only in those exceptional cases in which a private person may recover
damages for loss sustained by him in consequence thereof. However it has to be born in mind that
a person is liable in tort irrespective of whether or not an action for damages has been given against
him. The party is liable from the moment he commits the tort. Although an action for damages is
an essential mark of tort and its characteristic remedy, there may be and often other remedies also.

Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a
criminal one. There are certain essential marks of difference between crime and tort they are:

a) Tort is an infringement or privation of private or civil rights belongigng to individuals,

whereas crime is a breach of public rights and duties which affect the whole community.
b) 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.
c) In tort the action is brought about by the injured party whereas in crime the proceedings
are conducted in the name of the state.
d) 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.
e) The damages in tort are unliquidated and in crime they are liquidated.

Difference between tort and contract:

The definition given by P.H. Winfield clearly brings about the distinction between tort and
contract. It says, tortious liability arises from the breach of a duty primarily fixed by law; this duty
is towards persons generally and its breach is redressable by an action for unliquidated damages.
A contract is that species of agreement whereby a legal obligation is constituted and defined
between the parties to it. It is a legal relationship, the nature, content and consequence of which
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are determined and defined by the agreement between the parties. According to Salmond, a
contract arises out of the exercise of the autonomous legislative authority entrusted by the law to
private persons to declare and define the nature of mutual rights and obligations.

At the present day, tort and contract are distinguished from one another in that, the duties in the
former are primarily fixed by law while in the latter they are fixed by the parties themselves. Some
of the distinctions between tort and contract are given below:

a) A tort is inflicted against or without consent; a contract is founded upon consent.

b) In tort no privity is needed, but it is necessarily implied in a contract.
c) 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)
d) Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.
e) 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.

In certain cases the same incident may give rise to liability both in contract and in tort. For example,
when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway
company, the company is liable for a wrong which is both a tort and a breach of a contract.

(OR)

B) Explain the Mental Elements of Torts in detail. (10 Marks)

In every tort there is violation of legal rights of another person. Such a violation may be the result
of deliberate intention (e.g., an assault) or culpable negligence where the foresight of the
consequences is present though they are not directly desired e.g., reckless driving in a crowded
street.

It is well known that mens rea (blameworthy mental condition) is an essential element of a crime.
A person cannot be convicted for an offence unless his mens rea, i.e. guilty intention is proved.
This in other words means that act alone cannot constitute a crime unless it is accompanied by
mens rea. This fundamental principle of criminal liability has been expressed by the latin maxim
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“actus non facit reum, nisi mens sit rea” which literally means that a guilty act together with a
guilty mind constitute a crime in other words an act is not a crime unless it is committed with a
particular criminal intention. What constitutes mens rea is laid down in the case of offences defined
in the Indian Penal Code. The ultimate end of criminal law is to prevent harm by punishing the
doer of it. It is clear that it is useless to punish a man unless he did the wrongful act with a guilty
mind. Under criminal law mens rea or a guilty mind is an important element for punishing a man
for committing a crime. Here the question is how far mental element is an essential element for
determining the tortious liability.

In doing any wrongful act, generally the three stages of the human mind are examined which are
as follows:
i. Intention;
ii. Motive; and
iii. Malice.
INTENTION
Intention is a term which is difficult to define. It can be variously said to mean the object, purpose,
the ultimate aim or design behind doing an act. Intention is the conscious voluntary exercise of the
mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose.
Intention has been defined as the fixed direction of the mind to a particular object, or determination
to act in a particular manner and it is distinguishable from motive that which incites or stimulates
action.

Intention is the result of working of the brain and can be gathered from judging the act and the
circumstances under which it was done. Intention connotes a conscious state in which mental
faculties are roused into activity and summoned into action for the deliberate purpose of being
directed towards a particular and specified act and which the human mind conceived and perceived
before itself.

Intention is a state of mind and it cannot be permanent, man’s state of mind can change in any
moment. It is an internal fact, something which phases in the mind and direct evidence of which
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is not available. The word ‘intent' does not mean ultimate aim and object. Nor is it used as a
synonym for ‘motive’.

Intention is often referred in different terms under criminal law like ‘knowingly’, ‘voluntarily’,
‘fraudulently’, dishonestly’, ‘malignantly’, ‘wantonly’, maliciously’, ‘reason to believe’ etc. All
these words indicate the blameworthy mental condition required at the time of commission of the
offence in order to constitute an offence.
• Knowledge as a Sub-level of Intention
An act is intentional as to its consequences if the person concerned has the knowledge that it would
result and also the desire that it should result. The intention of men are inferences of reason from
their actions where the action can flow but from one motive, and be the reasonable result of that
one intention.

The act must be done with a wrongful intention (meaning intentionally and without just cause or
excuse). ‘Wrongful’ means ‘not fair, morally right or legal.’ ‘Wrongful intention' means ‘spite,
evil intention, malevolence, unfair intention, immoral intention, illegal intention, illegal or
immoral motives’. When a person has intention to commit some wrong act, he is having the
knowledge that what would be its consequences and that he wants it to get fulfilled: When I throw
a stone at you with the desire that it should hit you and accordingly it hits you, I have intentionally
thrown the stone upon you.

Desire for a particular consequence is predominant in all intentional acts. But in certain cases law
will impute intention to the parties. In such cases in point of law parties will be deemed to have
intended the natural and probable consequences of their acts. For example, if I fire a gun at your
dog wishing merely to scare it and in fact some of the pellets hit it, it is not open to me to say that
I intended only to scare it and not to hit it. So also if the pellets hit you who were standing by the
side of the dog, I cannot raise the plea of non-intention. In such cases the law will presume the
natural consequences of those acts.
• Importance of Intention in Torts
Generally intention is not an essential condition for liability in tort. The purpose of tort is not to
punish the wrongdoer but to award compensation to the injured. A person is deemed to know the
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natural consequences of his act. If A is injured by an act of B, then B will be liable even though he
has no intention of harming A.

In Guille v. Swan [(1882) 19 Johns 381] (Balloon Case) the defendant flew in a balloon but
unfortunately had to embark in the garden of the plaintiff. A huge crowd entered the garden to
witness him as a result of which his garden was damaged. The plaintiff sued the defendant for
damages. The defendant pleaded that he never intended to harm the plaintiff in such a manner but
it happened accidentally. But the Court held that defendant was liable because loss to the plaintiff’s
garden was the natural consequence of defendant’s act as crowd would naturally wish to see the
person flying in the balloon. The defendant could foresee the consequence of his act, and it was
sufficient that plaintiff had suffered loss.

In Wilkinson v. Downtone [(1897) 2 QB 57] (The Greyhair case) the defendant jokingly told the
plaintiff that her husband had met with an accident, his legs were broken and was hospitalised.
The plaintiff suffered nervous shock and got seriously ill and her hair turned grey. She sued the
defendant for damages. It was argued on behalf of the defendant that he simply played a practical
joke and never intended the consequences. But this argument was rejected by the court and the
defendant was held liable to pay damages. The defendant was held liable because, he committed a
wrongful act although he did not intend to harm the plaintiff.

• Negligence and Recklessness

Negligence as a mental element in tortious liability is just the reverse of intention and usually
signifies total or partial inadvertence of the defendant to his conduct or its consequences. In
exceptional cases there may be fully advertence to both the conduct and its consequences. But at
any event, there is no desire for the consequences and this is the touchstone for distinguishing
negligence from intention.

It is a case of negligence when the consequences are not adverted to, though a reasonable person
would have foreseen them. It is “recklessness” when the consequences are adverted to though not
desired and there is indifference towards them or willingness to run the risk. Recklessness is
sometimes called “Gross negligence” but very often and more properly it is assimilated with
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intention. In simple words, when circumstances demand care and a person fails to perform the duty
to take care, he is liable for the tort of negligence.

• Exceptions:
Intention as a rule is not an essential condition of tort in most of the cases e.g., nuisance, copyright,
injury to person or property. However, in some torts, such as, assault, deceit, defamation, malicious
prosecution, interference with trade or contractual relations and conspiracy, intention is one of the
essential requirements. it may be noted that in negligence there is no intention or desire for the
consequences. But when negligence is so severe that it amounts to recklessness or gross negligence
then it is very often assimilated with intention. However in a large number of cases of torts, absence
of intention is not a permissible defence.

MOTIVE
Motive is not to be confused with intention. Motive has been described as ‘ulterior intent or
objective’. It means the reason behind the act or conduct. By motive is meant anything that can
contribute to, give birth to, or even to prevent any kind of action. Thus motive may be good or
bad.

Motives are irrelevant in criminal as well as tortious liability. Motive is the moving power which
impels to action for a definite result; intent is the purpose to use a particular means to effect such
result. If a man knows that a certain consequence will follow his act, it must be presumed in law
that he intended that consequence to take place although he may have had some quite different
ulterior motive for performing the act.

The motive for an act is not a sufficient test to determine its criminal character. An act which is
lawful cannot become unlawful merely because it is done with an evil motive. It is the act not the
motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to
damage without legal injury, the motive, however reprehensible it may be, will not supply that
element. If an act is prima facie lawful, it would not be rendered unlawful because it was inspired
by a malicious motive.
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For example, If A has motive to help the poor, and to fulfill his motive, he plunders the rich. For
a good motive, he adopts an illegal way. The law does not excuse him. A shall be punished. If A
has ill-motives, and he performs his acts legally then the law does not punish him. Thus, although
the motive be pure or good, the act done under it may be criminal. Purity of motive does not purge
an act of its criminal character. Generally an act which is unlawful cannot, in law, be excused on
the ground that it was committed from a good motive and vise versa.

Motive though not a sine qua non for bringing the offence home to the accused, is relevant and
important on the question of intention. Motive may serve as a clue to the intention. It may act as a
supportive of intention.

• Distinction between Intention and Motive

‘Motive’ means causing movement; that which is actuated; an actuated purpose; that which incites
to action. it differs from intention. Intention has been defined as the fixed direction of the mind to
a particular object, or a determination to act in a particular manner, and it is distinguishable from
‘motive’ that which incites or stimulates action.

According to Austin, “the intention is the aim of the act, of which the motive is the spring.”
According to Salmond, “every wrongful act may rise two distinct questions with respect to the
intent of the doer. The first of these is: how did he do the act? Intentionally or accidentally. The
second is: if he did it intentionally, why did he do it? The first is an enquiry into his immediate
intent; the second is concerned with his ulterior intent or motive.

Though motive and intention appear to be synonymous terms, there is a sharp distinction between
the two. The immediate purpose of doing an act is called intention whereas the ultimate object of
that act is its motive. Motive is related to some benefit or satisfaction which a person seeks to
achieve by his act, but it is not so in case of intention. The distinction between these two can
illustrate as follows:
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If a man administers poison to a person his intention is obviously to kill that person but his motive
may be to obtain the property of that person after his death on the basis of Will executed by that
person.

Likewise, if a person in order to save his children from starvation, enters into another person’s
kitchen and steals away a few loaves of bread, his intention is evil, that is committing theft but his
motive is undoubtedly good as he wants to save the life of his children who were starving to death.
For example, A steals some money from the house of B. He might have stolen the money to feed
his starving children, or to fulfil his luxuries, or to repay the debts incurred by him. To feed his
starving children, or to fulfil his luxuries, or to repay his debts, etc., are the motives. ‘To steal’ is
A’s intention, whereas the reasons behind stealing are his motives.
This illustrations shows that though the intention behind doing an act may be bad but it might have
been done with good motive. Salmond states that motive refers to some personal benefit or
satisfaction which the actor desires whereas intention need not be so related to the actor.

• Importance of Motive in Torts

Motive is not that much important in law of torts as its other elements. Motive is the ulterior object
or purpose of doing an act. Good motive will not excuse a person from liability where the act is
prima facie a legal injury. The presence of a good motive or benevolent intent will not justify a
tortious act. The following case will illustrate this principle:

In the case of Thorns (1466) YB 6 Ed 4, (The case technically cited as Hulle v. Orynge 1466.
Y.B.M. 6 Edw. IV). In this case the defendant and the plaintiff were adjoining owners. While the
defendant was cutting the thorns which had grown on his boundary some of them fell upon the
plaintiff’s land and in order to recover them, he entered the plaintiff‘s land. In an action of trespass
by the plaintiff the Court held that motives are irrelevant, and even a desire to recover his own
property will not excuse the defendant from liability for unauthorised trespass upon another’s land.

The general irrelevancy of motive (good or bad) was affirmed by the House of Lords Mayor &
Co. of Bradford v. Pickles, (1895) AC 587; In this case Pickles made excavations on his own land
with the intention of intercepting the underground water that would otherwise have flowed into
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the adjoining reservoir belonging to Bradford Corporation. The Corporation brought a suit against
Pickles claiming damages and injunction. It was proved at the hearing of the case that in making
the excavations, the defendant was actuated solely by the malicious motive of doing injury to the
plaintiff and thus coerce them into buying his land. It was held that the defendants were not liable
as they were doing a lawful act over their land whatever may be their motive. The Court said that
a lawful act does not become unlawful merely because it was actuated with a bad motive.

In Allen v. Flood, (1898) AC 1, the plaintiffs were two workers (Shipwrights) engaged on repairs
of wood work of a ship while some iron-workers were also engaged at the ship to do the iron work.
The iron-workers came to know that the plaintiff’s had been previously employed for doing the
iron-work in another ship and thereupon resolved in a meeting of their union not to work with the
plaintiffs, and to stop work until the plaintiffs were not discharged by the ship owner. Allen, the
active official of the union informed about this decision of the union to the ship owner who
thereupon discharged the plaintiff. Since the wood workers were engaged on day to day basis,
there was no breach of contract by their discharge by the ship owner. The discharged Shipwrights
sued the iron-workers union official Allen for conspiracy. The House of Lords held the defendant
not liable as he did nothing wrong in communicating the decision of his colleagues (iron-workers)
to the employers of the plaintiff. Secondly, even if they acted maliciously, their discharge from
job was not wrongful. The defendant's plea was far from having any malice against the plaintiff‘s,
their action being directed to protect the interest of iron-workers which by no stretch could be
called as an act of conspiracy. The Court in its decision once again reiterated that if the act is
lawful, the Court will not go into the motives of the defendant nor shall it treats it damaging result
an act of conspiracy.
A lawful act cannot become unlawful merely because it is done with any motive, at the same time,
if the conduct is unlawful, good motive will not exonerate the defendant.

• Exceptions
The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution,
malicious abuse of process and malicious falsehood. Motive is also relevant in the torts of
defamation, nuisance and conspiracy. In some cases there may be a plurality of purposes and it
may become necessary to decide as to what is the predominant purpose. For example if persons
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combine to protect their own interests and to damage another person they would be liable for the
tort of conspiracy if the predominant purpose is to cause damage and damage results; but if the
predominant purpose is protection of their legitimate interests they would not be liable even if
damage is caused to another person.
MALICE
Motive and malice are two distinct words used differently in the law of torts, but they are entangled
with each other. Motive means ulterior intent or inner drive which signifies the reason for a man’s
conduct. When an act is done with bad intention then it is called malice. Malice, thus, means ‘evil
intent’.

Malice means wickedness of purpose, or a spiteful or malevolent design against another; a purpose
to injure another; a design of doing mischief; or any evil design or inclination to do a bad thing, or
a reckless disregard to the rights of others, or absence of legal excuse, or any other motive than
that of bringing a party to justice.
Malice is not merely the doing of a wrongful act intentionally, but it must be established that there
was spite or ill will or any indirect or improper motive.

'Malice' in its common acceptance, is a term involving some intent of the mind and heart, including
the will; and has been said to mean a bad mind; ill-will against a person; a wicked or evil state of
the mind towards another; an evil intent or wish or design to vex or annoy another; a willful intent
to do a wrongful act; a wish to vex, annoy or injure another person or an intent to do a wrongful
act; a condition of the mind which shows a heart regardless of social duty and fatally bent on
mischief.
• Classification
(a)Malice in Fact
The word ‘malice' usually means evil or bad motive. But in law malice has two distinct meanings:
firstly, improper, evil or bad motive (Malice in fact) and secondly, a wrongful act done
intentionally, without just cause or excuse (Malice in law).

Malice-in-fact is an act done with ill-will towards an individual. It is also called as ‘evil motive’,
‘express malice’, ‘actual malice’, ‘improper motive’ etc. Malice-in-fact depends upon motive.
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Motive means an ulterior reason for the conduct. it is different from intention. which relates to the
wrongful act itself. The immediate intention of a person may be to commit theft, the motive for
theft may be to buy food for his children or to help a poor man. As a general rule motive is not
relevant to determine a person's liability in the Law of Torts. A wrongful act does not become
lawful merely because the motive is good. Similarly, a lawful act does not become wrongful
because of a bad motive or malice.

The rule that a wrongful act is not converted into a lawful act by a good motive is dealt in the case
of Thorns (1466) YB 6 Ed 4, (The case technically cited as Hulle v. Orynge 1466. Y.B.M. 6 Edw.
IV). In this case the defendant and the plaintiff were adjoining owners. While the defendant was
cutting the thorns which had grown on his boundary some of them fell upon the plaintiff’s land
and in order to recover them, he entered the plaintiff‘s land. In an action of trespass by the plaintiff
the Court held that motives are irrelevant, and even a desire to recover his own property will not
excuse the defendant from liability for unauthorised trespass upon another’s land.

In South Wales Miners Federation v. Glamorgan Coal Company ((1905) AC 239], in this case,
the plaintiffs, the owners of Coalmines brought an action against the defendants, a miner’s union,
for inducing its workmen to make the breach of a contract of their employment by ordering them
to take certain holidays. The act of the defendant was not actuated by any ill-will but the object
was to keep up the price of coal by which the wages were regulated. The House of Lords held the
defendant liable.

The rule that a lawful act does not become unlawful merely because of an evil motive is dealt in
Bradford Corporation v. Pickles [(1895) AC 587]. In this case the defendant made certain
excavations over his own land as a result of which the water which was flowing in unknown and
undefined channels from his land to the adjoining land of the Corporation was discoloured and
diminished. It was done by the defendant with a motive to coerce the plaintiffs to purchase the
defendant’s land at a high price. in this case the damage was caused maliciously, but at the same
time the defendant was making a lawful use of his own land. it was held by the House of Lords
that the defendant was not liable.
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In such a case motives are immaterial. It is the act not the motive for the act, that must be regarded.
If the act apart from the motive gives rise merely to damage without legal injury the motive,
however, reprehensible it may be, will not supply that element.

• Exceptions
The exceptions to the general rule that malice4in-fact is irrelevant in law of torts are : (i)
defamation on a privileged occasion; (ii) malicious prosecution; (iii) willful and malicious damage
to property; (iv) injurious falsehood about goods, slander, of title etc.; (v) malicious conspiracy;
and (vi) maintenance.

(b) Malice in Law

Malice-in-law or ‘implied malice’ means a wrongful act done intentionally without just cause or
excuse. It is synonymous with ‘intention’. In common parlance, malice means ill-will against a
person but in its legal sense a wrongful act, done intentionally, without just cause or excuse.
The term malice in law signifies either-
(i) The intentional doing of a wrongful act without just cause or excuse, or
(ii) an action determined by an improper motive in.

According to Halsbury’s Laws of England, “malice in fact is malue animus indicating that action
against a party was actuated by spite or ill will against him or by indirect or improper motive.”
Malice means the presence of some improper and wrongful motive that is to say an intent to use
the legal process in question for some other than a legally appointed and appropriate purpose. It
means an improper or indirect motive other than a desire to vindicate public justice or a private
right. It need not necessarily be a feeling of enmity, Spite or ill-will; it may be due to a desire to
obtain a collateral advantage.

Malice in Law is was described by BAYLEY J. “Malice in common acceptation means ill-will
against a person, but in its legal sense it means a wrongful act, done intentionally, without just
cause or excuse. If I give a stranger a perfect blow likely to produce death, I do it out of malice,
because I do it intentionally and without just cause or excuse. If I maim cattle without knowing
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whose they are, if I poison a fishery, without knowing the owner, I do it out of malice, because it
is a wrongful act, and done intentionally.”

So a wrongful act, done knowingly and with a view to its injurious consequences may be called
‘malicious': But such malice derives its essential character from the circumstances that the act
intentionally done and constitutes a violation of the law.

In Shearer v. Shields [(1914) AC 808 at 813] Viscount Haldane described malice-in-law as under:
“A person who inflicts an injury upon another person in contravention of the law is not allowed to
say that he did so with an innocent mind; he is taken to know the law and he must act within the
law. He may, therefore. be guilty of malice-in-law, although, so far the state of his mind is
concerned, he acts ignorantly and in that sense innocently.”

ln Quinn v. Leathem [(1901) AC 495], A, without just cause or excuse induced B’s workmen to
discontinue their work in breach of their contract with B. A did this prompted by good motive to
do good to both, B and B’s workmen. It was held that nonetheless A was liable, in as much as the
procurement of breach of contract without just cause was a tort and, therefore actionable.
Malice-in-law simply means a wrongful intention which is presumed in case of an unlawful act,
rather than a bad motive or feeling of ill-will. For example, in an action for defamation it may be
mentioned that the alleged statement was published falsely and ‘maliciously’. Here it simply
means that the statement is false and is also made without lawful justification. Malice-in-Law may
be deemed to exist when an order is made contrary to the object and purpose of the statute under
which the order is made.
2. Write any one for 6 Marks
a) Distinction between tort and contract (6 Marks)

Tort Contract
1. In tort the duty is fixed by In contract the duty is
the law itself. fixed by the parties
themselves.
2. In tort the duty is towards In contract the duty is
every person of the towards specific person or
community or society. persons.
 17

3. A tort is committed A contract is based on the

against or without consent of the parties.
consent.
4. A tort is a violation of a A breach of a contract is
right in rem (i.e., of a an infringement of a right
right vested in some in personam (i.e., of a
determinate person, either right available only
personally or as a against some determinate
member of the person or body, and in
community, and available which the community at
against the world at large. large has no concern.
5. The law of torts is aimed The law of contract aims
at allocation or prevention to see that the promises
of losses. made under a contract are
performed.
6. A third party can sue for A third party to a contract
tort even though there cannot sue for breach of
was no contract between contract except in some
the person causing injury exceptional cases.
and the person injured.
7. In an action for tort, noIn a breach of contract
privity needed or is privity between the
required to be proved. parties must be proved.
8. In tort motive is often In breach of contract
taken into account. motive is not relevant.
9. The remedy in tort is civil
The remedy is civil action
action for unliquidated for specific performance
damages, restitution of of the contract or
property, injunction etc.liquidated damages in
alternative.
10. In tort measure of In breach of contract
damages is different in damages are awarded in
different circumstances, the form of compensation
which may be nominal or for pecuniary loss
exemplary. actually suffered.
11. In case of a tort, the suit In a breach of contract,
is for unliquidated the measure for damage s
damages. is determined by the
stipulation between the
parties or is
The same act may amount to a tort and a breach of contract. Persons, such as carriers, solicitors,
or surgeons, who undertake to discharge certain duties and voluntarily enter into contracts for the
due performance thereof, will be liable for neglect or unskillfulness either in an action for a breach
 18

of contract to a party to the contract or in tort to a person not a party to the contract who suffers
injury.

The breach of such contracts amounts also to a tort because such persons would be equally liable
even if there was no contract as they undertake a duty independently of any contract. A father
employs a surgeon to attend on his son. The son is injured by unskillful treatment. Here there is a
contract between the father and the surgeon, but none between the son and the surgeon. The father,
therefore, may sue the surgeon in contract, but the son can sue him only in tort. (Gladwell v.
Steggall, (1839) 5 Bing NC 733).

In the celebrated case of Donoghue v. Stevenson (1932) AC 562 (HL), a manufacturer who sold
substandard article to a retailer who sold it to a customer was held liable to a friend of the customer
who after consuming it became ill. The manufacturer was under a contractual duty to the retailer
and was in breach of that duty but he also owed a duty in tort to take reasonable care not to harm
the consumer.
(OR)

b) A hundred year old clock tower was situated in a busy street of Magadha city. The clock
tower was exclusively under the control of Municipal Corporation of Magadha city. The
normal life time of the clock tower was estimated to be 60 years. The clock tower collapsed
resulting in the death of 25 people. Can the Municipal Corporation of Magadha city be held
liable? (6Marks)
Yes. The Municipal Corporation of Magadha city is liable to pay compensation to the
representatives of 25 deceased persons.

Tort is an injury or a wrong committed with or without force to the person or property of another,
and such injury may arise by either the nonfeasance, malfeasance or misfeasance of the wrong-
doer. If the wrong-doer is a Government or a Government Corporation, the Courts will not excuse
it. Not only private persons but also the Government should not breach their duty, and should not
cause any harm or injury to any citizen, contrary to the law.
 19

For instance: In Municipal Corporation, Delhi v. Subhagwanti, AIR 1966 SC 1750, the Municipal
Corporation, Delhi which owned responsibility of maintenance of a tower clock on a traffic square
in the heart of the city, omitted to maintain it properly as a result of which it fell and caused death
of many persons including the plaintiff. The Corporation was held liable for the omission and was
ordered to pay damages to the plaintiff. Where a person is under a legal duty to do some act and
he fails to perform that duty, he can be made liable for such omission.

Unit 2
1. Explain defences of Act of God and Inevitable Accident along with its differences.
(10 Marks)
Act of God (vis major) :

An Act of God will be an extraordinary occurrence clue to natural causes which is not the result
of human intervention which could not be avoided by any amount of foresight and care e.g. a fire
caused by lightning. But an accidental fire though it might not have resulted from any act or
omission of common carrier, cannot be said to be an Act of God. Act of God is also recognized
as one of the general defences to liability in tort. Act of God means an act or escape caused directly
by natural cause without human intervention and is “so unexpected that no human foresight or skill
could reasonably be executed to anticipate it”. Thus an act of God is an act which “is due to natural
causes directly and exclusively without human intervention, and that it could not have been
prevented by any amount of foresight and pains and care reasonably to have been expected from
him (i.e., the common carrier or the defendant).

According to Lord Mansfield, Act of God is something in opposition to the act of man. The
occurrence need not be unique, nor need it be one that happens for the first time; it is enough that
it is extraordinary, and such as could not reasonably, be anticipated and it must not arise from the
act of man.”

Another term for Act of God is ‘Vis Major‘(Damnum Fatale). It is a Latin term that means superior
force. A loss or vis major results from natural causes such as a hurricane, floods, earthquake and
without the intervention of human beings.
 20

According to Sir Fredrick Pollock, Act of God is an “operation of natural forces so unexpected
that no human foresight of skill could reasonably be expected to anticipate it.”

According to Salmond, Act of God includes those acts which a man cannot avoid even by taking
reasonable care. Such accidents are of natural forces and are unconnected to the agency of man.

Those acts which are occasioned by the elementary forces of nature, unconnected with the agency
of man or other cause will come under the category of acts of God, e.g., storm, tempest, lightning,
extraordinary fall of rain, extraordinary high side, extraordinary severe frost. In order that a
phenomenon should fall within operation of the rule of law with regard to the act of God it is not
necessary that it should be unique, that it should happen for the first time, it is enough that it is
extraordinary, and such as could not reasonably be anticipated.

Three important essentials are needed for the defence of Act of God:
i. There must be working of natural forces;
ii. The occurrence must be extraordinary and not one which could be anticipated and reasonably
guarded against;
iii. It should not be within human contemplation.

The act of God may be defined as circumstances which no human foresight can provide against
any of which human prudence is not bound to recognize the possibility, and when they do occur,
therefore are calamities that do not involve the obligation of paying for the consequences that result
from them.
The event causing damage was the result of natural forces without any intervention of human
agency and that event was such that the possibility of such event could not recognized by using
reasonable case and foresight is Act of God.

Whether a particular event amounts to an Act of God is a question of fact. Today the scope of this
defence is very limited because with the increase of knowledge the foresight also increase and it
is expected that the possibility of the event that the possibility of the event could have been
visualized.
 21

For example, if I tame a tiger and chain it and it injures others, I cannot take the defence of
inevitable accident or act of God, but if the iron chain breaks due to sudden lightening, the defence
of act of God will be available to me.

Nichols v. Marsland [(1876) 46 LJ. Ex 174], in this case, the defendant was in possession of some
artificial pools or lakes which were formed by damming a natural stream, A violent storm and
rainfall broke down the embankments, four bridges were carried away because of the great thrust
and rush of water. It caused heavy damage to plaintiff’s property. It was found that there was no
negligence on the part of defendant in the construction of the said lakes and the rain fall was
extraordinary and immemorial. The defendant was therefore held not liable as the damage caused
to the plaintiff was due to act of God.

Whether an act is an act of God or not is a question of fact in each case. The criterion is not whether
or not the event could reasonably be anticipated but whether or not human foresight and prudence
could reasonably recognise the possibility of such an event. In the modern time, the courts tend to
limit the scope of the defence of act of God.

Act of God includes those consequences which occasionally occur by elementary force of nature
unconnected with the agency of man. Example: falling of a tree, a flash of lightening, a tornado
(violently rotating winds), a flood, a hurricane alike.

In T. Gajya Laxmi v. Secretary, P.W.D, Tamilnadu, Madras, 1997, a live wire from the electric
pole got disconnected due to heavy storm and rain. It fell on a cyclist who was passing through the
road and he died due to electrocution. When sued by his legal representatives, the Electricity Board
pleaded that it was an act of God as also the cyclist's own negligence as he should have not came
out of his house in such a torrential storm and rain. Rejecting the defendant's plea, the Court held
the Board liable.

In Ramalinga Nadar vs Narayana Reddiar, AIR 1971 Kerala 197; Kerala High Court held that
the Criminal activities of Unruly mob cannot be considered as an Act of God.
 22

In Saraswati Parabhai vs Gird Crop of Orissa, where an electric pole was uprooted and fell
down with live wire which caused death of a person. The Corp (Defendant) took the defence of
Act of God which the Orissa High Court rejected and held it was responsibility of Grid Corp
Authorities to provide protection in such situation of strom and rain.

Inevitable Accident
It is that which could not possibly be prevented by the exercise of ordinary care, caution and skill.
If in the execution of a lawful act by lawful means, done with the degree of care which the
circumstances require, an accident happens, no action lies for any injury resulting there from. An
‘inevitable accident’, or ‘unavoidable accident’, is that which could not possibly be prevented by
the exercise of ordinary care, caution and skill. It means an accident physically unavoidable. It
does not apply to anything which either party might have avoided.“ If a man carries firearms or
drives a horse, his duty is merely to use reasonable care not to do harm to others thereby; and if
notwithstanding the use of such care an accident happens, he may plead that it was due to inevitable
accident. “People must guard against reasonable probabilities, but they are not bound to guard
against fantastic possibilities.

An accident in its general sense, is any unexpected injury resulting from any unlooked for
occurrence. Thus snow fall cannot be regarded as an accident because it happens in the ordinary
course of things every year, but if a man slips on a banana skin lying on the road and breaks his
leg, that happening to the man is an accident. If a car driver has a heart attack and there is an
accident or a driver after getting the car serviced meets with an accident not because of any
negligence on his part, because the breaks fail all of a sudden, the defence of inevitable accident
will apply.

In order to constitute inevitable accident, it is essential that the accident should not have been
capable of being avoided by ordinary skill and diligence. In fact, inevitable accident is a plea to
prove that the conduct of the defendant was neither wilful nor negligent and so the defendant is
not liable.
 23

All causes of inevitable accident may be divided into two classes:

(l) Those which are occasioned by the elementary forces of nature unconnected with the agency
of man or other cause; and
(2) Those which have their origin either in the whole or in part in the agency of man, whether in
acts of commission or omission, nonfeasance or of misfeasance, or in any other causes independent
of the agency of natural forces.

Inevitable accident does not apply to anything which either party might have avoided. It is an
accident such as the defendant could not have avoided by the use of the kind and degree of care
necessary to the exigency (urgent need/demand) and the circumstances in which he was placed.

The defence of inevitable accident used to be essentially relevant in actions for trespass when the
old rule was that even a faultless trespassery contact was actionable, unless the defendant could
show that the accident was inevitable. In other words, the burden used to be on the defendant to
show that his conduct was utterly without fault, i.e., without negligence.

Brown v. Kendal, 1859, The plaintiff’s and defendant’s dogs were fighting, the defendant was
beating them in order to separate them and the plaintiff looking on. The defendant retreated
backwards from, before the dogs, and as he approached the plaintiff, with his back towards him,
in rising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in
the eye, inflicting upon him a severe injury. The plaintiff brought an action against the defendant.
It was held that the act of the defendant in itself “was a lawful and proper act (to separate fighting
dogs was a legal) which he might do by proper and safe means”; and that if “in doing this act,
using due care and all proper precautions necessary to the exigencies of the case to avoid hurting
others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded
him, this was the result of pure accident, or was involuntary and unavoidable, and therefore, an
action would not lie”. All that could be required of the defendant was “the exercise of due care
adopted to the exigency of the case”.

Fardon v. Harcourt-Ravington, 1932, The defendant and his wife parked their motor car in front
of a shop and went inside for purchasing something. They left their dog inside the car. Before
 24

leaving the car the defendant had closed its doors properly. The dog had always been quiet and
docile. The plaintiff was passing by the car. The dog, seeing his gorgeous clothes, was excited and
started barking and jumped into the car and smashed a glass panel of the car. A piece of the glass
entered the plaintiff’s eye, which had to be removed. In an action for damages, it was held that the
plaintiff could not recover as there was no negligence on the part of the defendant in not taking
precautions against it.

Padmavati v. Dugganaika, 1975, Two strangers took lift in a jeep. When the driver was taking the
jeep to the petrol pump station for filling petrol, the bolt fixing the right front wheel of the jeep to
the axle gave way and the right wheel flew away from the axle and consequently the jeep toppled
and the two strangers were seriously injured and one of them died. On inquiry it was found that it
was a sheer accident and there was no evidence to show that the defect was patent and could have
been detected by periodical check-up. It was held that the driver and the master were not liable.

Stanley v. Powell, 1891, The plaintiffs and the defendants were members of a shooting party. The
defendant fired at a pheasant (kind of bird) but unfortunately the shot from his gun hit an oak tree
and rebounded and injured the plaintiff, who was engaged in carrying cartridges and game for the
party. It was held that the injury to plaintiff was the consequence of an inevitable accident and,
therefore, the defendant was not liable. The ratio in this case has been criticised as erroneous,
though the decision itself can be supported on the ground of volenti non fit injuria.

Distinction Between Act of God and Inevitable Accident

Act of God Inevitable Accident
An act of God is a direct, violent, sudden and An inevitable accident is that which could not
irresistible act of nature as could not, by any possibly be prevented by the exercise of
amount of human care and skill have been ordinary care, caution and skill.
resisted.
Act of God is Genus, it occurs without It is a branch of act of God, it occurs with
intervention of human agency intervention of Natural force.
It cannot be controlled by human beings. It can be controlled by human beings.
it is predictable but cannot br preventable it is not predictable but can be preventable
Storms, earthquakes, volcanic eruptions, Traffic accident, building collapses, train
floods etc. Are the examples of act of God. accidents etc. are the examples of the
inevitable accident.
It cannot be prevented despite utmost care and it can be prevented by necessary care and
caution. precaution.
 25

(OR)
2. Explain the concept of Vicarious Liability with reference to Master and Servant
relationship. (10 Marks)
Generally a person becomes liable for a tort committed by him or himself. But there are certain
circumstances, in which a person becomes liable for the tort committed by another. Such liability
is called as “Vicarious Liability.”
Example – If A, a driver of a lorry, commits an accident for which B, the owner is held liable. The
liability of B is Vicarious liability.
This Vicarious Liability is based on two principles-
1. Qui facit per alium facit perse – He who does not act through another, is deemed in law
to do it himself. When a person authorizes another to perform an act and a tort is committed while
performing the act, the former is liable as if he had committed it himself.
The reason behind this maxim is that a person who puts another in his place to do a class of acts
in his absence, necessarily leaves him to determine, according to the circumstances that arise.
When a act of that class is to be done and trust him in the manner it is done, consequently, he is
answerable to the wrong of the person so entrusted, either in the manner of doing such an act, or
in doing an act under circumstances in which it ought not to have been done, provided what is
done is not done for any caprice (Sudden and unaccountable change of mood) of the servant, but
in course of employment.
2. Respondent Superior – “Let the Superior be liable”. The liability is imposed on
superior/strong man ignoring the weaker man. The injured party would get appropriate remedy.
The rule has its origin in legal presumptions that all acts done by a servant in and about his master’s
business are done by his master’s express and implied authority, and are in truth, the acts of the
master. The master is answerable for every such wrong of the servant as is committed in the course
of his service, though no express command or privity is proved. The reason for this rule is –
• The difficulty of proving the actual liability
• The master or principal, usually will be financially capable of bearing the burden.
According to Sir Fedrick Pullock, the Doctrine of Vicarious Liability is based on the principle of
“Social Security”. He said – “I am responsible for the wrongful act of my servant or agent, because
he does my act and therefore it is my duty to see that he must do my act keeping in view the
security of others.
 26

In Imperial Chemical Industries Limited v/s Shatwells, (1964) 2 All E R 999, Lord Pears said,
the Doctrine of Vicarious Liability has originated not from an express reason or rules of law, but
from the general rule of social convenience and justice. When the master employs his servant
(Impliedly for his own benefit), and is capable of meeting the laws suffered by a person from the
acts of his servant, then he is liable against the whole of the world, for the torts committed by
servant.
A person is liable for his own wrongful acts and one does not incur any liability for the acts done
by others. In certain cases, however, vicarious liability, that is the liability of one person for the
act of another person, may arise. In order that the liability of A for the act done by B can arise, it
is necessary that there should be certain kind of relationship between A and B, and the wrongful
act should be, in certain way, connected with that relationship.
Vicarious liability arises in
1. Liability by ratification
2. Liability arising out of special relationship

Liability by Ratification: Ratification means signing or giving formal consent. In case of the act
of principal, if subsequently it is ratified by him, the act of the agent is deemed to be an act of the
principal, whether it may be to his detriment (is nothing but loss) or advantage. The person can be
held liable on:-
* The person who ratifies shall have full knowledge
* can be ratified, done at time and belief
* Only lawful acts can be ratified
* Ratification must be express

Liability Arising out of Special Relationship

* Liability of the Master and Servant
* Liability of the Principal and agent
* Liability of the Firm and partners
* Liability of the Employer and independent contractor
* Liability of the Government liability for torts committed by its servants.
 27

Liability of the Master and Servant:

If a servant does a wrongful act in the course of employment, the masters liable for it. The servant
of course is liable for it. The liability of the master for act of his servant is based on the maxim
"Respondent Superior" (which means let the superior be liable)
There are 2 essentials:
* The tort was committed by the servant.
* The servant committed the tort in the course of his employment.

Who is a master?
One who employs another, subject to certain terms and conditions to work under his lawful orders
and supervision.
Who is a servant?
A servant is a person employed by another to do work under the guidance and control of his
master. A servant is an agent who is subject to the control and supervision of his employer
regarding the manner in which the work is to be done. An independent contractor is not subject to
any such control. He undertakes to do certain work and regarding the manner in which the work
is to be done. He is his own master and exercises his own discretion. And independent contractor
is one “who undertakes to produce a given result, but so that in the actual exclusion of the work,
he is not under the order or control of the person for whom he does it, and may use his own
discretion in things not specified beforehand.
Example: My car driver is my servant. If he negligently knocks down X, I will be liable for
that. But if he hire a taxi for going to railway station and a taxi driver negligently hits X, I will not
be liable towards X because the driver is not my servant but only an independent contractor. The
taxi driver alone will be liable for that.

What is course of employment?

Everything depends on whether the servant did act “in the course of employment”. A master is not
liable for a wrongful act done by his servant unless it is done in the course of his employment. A
servant is said to have acted in the course of his employment in the following cases-
1. When he does a wrongful act authorized by the master.
 28

2. When he does the act in a wrongful way and unauthorized manner, the act
authorized by his master.
In Anita Bhandari v. UOI, the deceased customer had gone to Dena bank for a banking
transaction. He had wrongly parked his vehicle and entered the bank, at the same time the cash
box of the bank also arrived. The security guard of the bank erroneously perceived the act of the
deceased as threat to cash box and shot him dead. The widow and minor son of the deceased filed
a suit for compensation against the bank for negligent act of its employee. The respondent
contented that since the bank had not authorized or instructed the security guard to shoot at a
customer or to use the weapon recklessly, the security guard was not acting in the course of
employment when the incident took place. So the bank was not vicariously liable. The court held
that, when the cash box was being brought into the bank premises, at that time the deceased had
not made any attempts to assault the security guard nor had the deceased made any attempt even
to touch the cash box or the vehicle carrying the cash box. Therefore the act of the security guard
was prima facie held to be rash and reckless. It was further held that since the unlawful act of the
security guard was so connected with the authorized act of ensuring the cash box being safely
brought into the bank, the unlawful act was a part of the mode of performing the authorized act.
Once the bank employed the security guard and entrusted him with a gun, the bank necessarily left
it to him to determine, according to circumstance when the gun should be used. Hence the bank is
liable for the wrong of the security guard.

Traditional View: Test of Control

A master is one who not only prescribes to the workmen the end of his work but directs or at any
moments may direct the means also; retains the power of controlling the work.
The traditional mode of stating the distinction is that in case of servant, the employer in addition
to directing what work the servant is to do, can also give directions to control the manner of doing
the work; but in case of an independent contractor, the employer can only direct what work is to
be done but he cannot control the manner of doing work.
In Short V.J. & W. Henderson Ltd. Lord Thankerton pointed out four indicia of a contract of
service:
1) Master’s power of selection of his servant
2) Payment of wages or other remunerations
 29

3) Master’s right to control the method of doing the work, and

4) Master’s right of suspension or dismissal.

Modern Test: Hire and Fire Rule

The test of control as traditionally formulated was based upon the social conditions of an earlier
age and “was well suited to govern relationship like those between a farmer and an agricultural
labourer (prior to agriculture mechanisation), a craftsman and a journeyman, a householder and a
domestic servant and even a factory owner and an unskilled hand”. The control test bricks down
when applied to skill and particularly professional work and, therefore, in recent years it has not
been treated as an exclusive test.

The Supreme Court in Dharangadhara Chemical Works Ltd. v State of Saurashtra laid down that
the existence of the right in the master to supervise and control the execution of the work done by
the servant is a prima facie test, that the nature of control may vary from business to business and
is by its nature incapable of any precise definition, that it is not necessary that the employer should
be proved to have exercised control over the work of the employee, that the test of control is not
of universal application and that there are many contracts in which the master could not control
the manner in which work was done. The English Courts have also recognised that the control test
is no longer decisive.Thus in modern times the “hire & fire” test, that is, who has the power to
appoint and dismiss the servants is regarded an important test.
The act is deemed to be done in course of employment if it is an
1. Act authorized by master and their natural consequences.
2. Unauthorized modes of doing authorized acts.

1. Authorized acts and their natural consequences: When a master authorizes (gives official
permission/approval) the servant to do an act and the servant performs accordingly (i.e. authorized
means/manner) if any tort is committed the master is liable.
George v/s Piper (1829) the master authorized his rubbish (garbage) to obstruct the plaintiffs
using particular way. He instructed his servant to do the same. The servant did accordingly. But
the rubbish touched plaintiff's wall and the plaintiff sued the defendant for trespass. The defendant
(master) was held liable for trespass.
 30

2. Unauthorized modes of doing authorized acts/works: When servant performs the work
entrusted by unauthorized mode, still the master is liable. Example:
a. Carelessness of servant
b. Mistake of servant
c. Wilful wrong of servant.
d. Fraud of servant
e. Negligent delegation of authority by servant
f. Criminal act of servant.
g. Express prohibition
h. Lending of servant.
A. Carelessness of servant:
If a servant acts carelessly in performing the work and commits a tort thereby, the master is liable.
In Century Insurance co. Ltd v/s Northern Ireland Road Transport Board, the defendant's
servant struck a match to light a cigarette while transferring petrol from lorry to underground tank
and threw it in the floor carelessly, an explosion took place and the plaintiff's property was
destroyed. The defendant was held liable for careless performance of work by servant.
In Ganga sugar corporation ltd v/s Sukhbir Singh (AIR 1974 All 133), jeep driver in course of
employment left the ignition key in the jeep, which was stationed in crowded road, someone drove
the jeep in his absence and the accident was caused. The driver as a reasonable man could have
anticipated that someone could get into the jeep and drove it; since the driver was driving in course
of employment, his master was held liable.
B. Mistake of Servant:
If the servant commits a tort, while performing the work, by mistake! The master is liable as the
mistake of fact is no defence.
In Bayley v/s Manchester, Sheffield and Linocd Shire Rly co., The defendant servant, a rly
porter (coolie) pulled plaintiff, a passenger out of the train under a mistake impression that he
boarded on a wrong train and the plaintiff was injured. The defendant Rly co. Was held liable.
In Poland v/s Parr and sons (1927)1 KB 23, In this case a Carter (cart carrying goods) suspected
on mistaken but reasonable grounds that some boys were pilfering (stealing) sugar from his
employer's wagon (transport carrier), in order to prevent the theft and protect the employer's
property he struck one of the boys. the boy fell and was run over by the wagon and consequently
 31

lost his leg. The act of the carter though excessive was not so much excessive that the same could
be considered to be outside the class of acts which the servant had an authority to do. The master
was therefore held liable for the same.
C. Wilful wrong of the servant:
Sometimes the master gives certain instructions to the servant to be observed while performing the
work. Even if servant wilfully disobeys such instructions and commits a tort, master is liable.
In Limpus v/s London General Omnibus Co., The defendant Co. Instructed their servants not to
race with or overtake/obstruct other omnibuses. Contrary to such instructions, the defendant
servant drove across the road to obstruct plaintiff's bus and committed an accident. The defendant
was held liable.
D. Fraud of Servant:
The master is also liable for the fraudulent acts done by servant for his own benefit, even unknown
to the master the servant is executing his authorized act by committing some fraud. Lloyd vs.
Grace Smith & co The plaintiff approached the defendant company to help her sell off some
properties owned by her as the real estate prices were quite high. The company directs her to an
employee, who claims to have got a buyer and makes her sign a sale deed which unknown to her
was actually a gift deed transferring the properties in favour of the employee. Held, the firm was
liable for the all the wrongful act of it s servant committed irrespective of for whose interest that
act was done.
E. Negligent delegation of authority by servant:
The expression Delegation of Authority literally means transfer of power or entrusting of work to
another. Sometimes the servant may negligently delegate his work to another thereby tort maybe
committed. Then the master is liable.
In Beharilal v/s Surinder Singh (1965), the driver of the lorry handed over steering wheel to the
cleaner who drove negligently and committed an accident. The defendant was held liable.
In Sitaram v/s Santanuprasad (AIR 1966 SC 1697), The question before the Supreme court was
- Can the master be made liable if his driver lends the taxi to some third person for a private use?
The facts of the case are Sitaram, who was the owner of a car, entrusted the same to one
Mohammed Yakub for plying it as a taxi in Ahmedabad. Mohammed Yakub, who was sole in
charge of the taxi, employed a cleaner. He trained the cleaner in driving the taxi. On April 11, 1940
he gave the taxi to the cleaner for taking the driving test and obtaining the driver's license. While
 32

taking the test the cleaner took a sudden turn without giving any signal, caused an accident and
seriously injured the plaintiff's leg. The question was, could Sitaram, the owner of the car be liable
in this case???
If a servant has been authorized by the master to do a certain act and the servant in performing that
either solicits help of another or completely gives charge to somebody else, the master can be held
liable if any damage is caused by this delegation. The rationale over here is the work if completed
successfully would have ultimately benefitted the master. Ricketts v. Thomas Tilling Ltd.The
driver, who had been authorised to drive the bus, feels tired and asks the conductor to drive the
bus for some time. The conductor while driving the bus, does so quite negligently and hurts a
pedestrian X. X brings a suit against the bus company. Held By a clear application of the principle
of wrongful delegation, it is quite conclusive that the master is liable. Hence X will succeed.

It was held that as there was nothing to show that the owner had either permitted the cleaner to
drive the taxi and take such driving test or had authorized the driver to employ strangers to drive
or take driving test, the cleaner at the time of accident was not doing the master's work, nor was
the driver while lending the car acting in the master's business, the owner was, therefore, not liable.
F. Criminal act of servant:
Earlier theft by servant was regarded outside the course of employment and master was held not
liable. Now, the master is Liable.
Morris v/s C.W.Martin and sons ltd., in this case the defendants were the bailees (persons or
parties to whom goods are delivered for a purpose, such as custody or repair, without transfer of
ownership) of fur coat given to them by plaintiff for cleaning. The defendant servant instead of
cleaning the coat stole it. The defendant was held liable.
In Rooplal v/s Union of India (AIR 1972 J&K 22), some military jawans lifted some firewood
belonging to the plaintiff and carried the wood in military vehicles for the purpose of camp-fire
and fuel. The plaintiff brought a suit against Union of India. It was held that the acts of the jawans
fall within the course of employment and the Union of India was liable for the same.
G. Express prohibition:
It means prohibition of certain acts while performing the work authorized by the master.
Sometimes the employer forbids his servant from doing certain acts. It does not necessarily follow
that an act done in defence of prohibition is outside the scope of employment. If prohibition were
 33

to be a defence, every employer would escape the liability by issuing orders to his servants
forbidding them from committing any tort.
In Limpus v/s London General Omnibus Co., (186)1 H&C 526, The defendants driver, in
defence of the express instructions not to race with or cause obstruction to other omnibuses, tried
to obstruct the rival omnibus, and thereby caused an accident. The driver had been engaged to
drive and his act was negligent mode of driving an fit was held to be within the course of
employment, in spite of the express prohibition. The defendant co. Was held liable. Though
Contrary to such instructions, the defendant servant drove across the road to obstruct plaintiff's
bus and committed an accident.
H. Lending of Servant:
It may also be called borrow of servant, sometimes the master may lend his servant to another for
a specific purpose. In such cases, if the servant commits tort in the course of Employment, the
question that arises is, who is held to be liable i.e. whether the original master or the person to
whom the servant is lent.
The question is to be decided depending upon the circumstances of the case. To determine liability,
the following matters are taken into consideration.
1. Who pays the servant?
2. Who has an opportunity to supervise the work of servant?
3. Who has power to punish or dismiss the servant?
4. What machinery is used?
If the original master withdraws the control and supervise over his servant at the time of lending,
the new master is liable for the tort committed by the servant.
Niranjanlal Ramachandra v/s Ramaswamy Bhagwan Singh, it was held that the hirer of a
motor vehicle was liable on the ground that the principal master had completely withdrawn his
control over the servant.
Mersey Docks & Harbour Board v/s Coggins and Griffith, the plaintiff (new master) engaged
a crane along with the driver from the defendant, (original master) but the control over servant and
was retained with the original master, the defendant. The servant committed an accident and the
defendant, the original master was held liable.

Exceptions- when master is not liable:

 34

Master is exempted from vicarious liability under the following circumstances:-

1. Outside the course of employment: if the tort committed by servant does not come with in the
purview of in course of employment the master is not liable. A master is not liable for a dishonest
or criminal act of his servant where the servant merely takes the opportunity afforded by his service
to commit the wrongful act. Example, if a window cleaner steals an article from the room where
he is doing the window cleaning work, his employer is not liable. Similarly when a servant assaults
another, whom he meets in course of his work, out of personal vendetta, and the assault has no
relation to the master's work, the master is not liable. But if the wrongful act is committed for the
benefit of the master and while doing his business, the master is Liable.
2. Lending of Servant: when the master lends his servant to another and withdraws control over
him at the time of lending, then the original master is not liable but the new master is Liable.
3. Employment under compulsion: a master is not liable for the tort committed by the servant who
has employed under complusion and against the will, the master is not liable, as he has no power
of selection or control over the servant.
4. Doctrine of common employment: according to this doctrine, if the wrong doer and the injured
party are the servants of the same master, the master is exempted from the liability.
The doctrine of common employment was propounded first by lord Abinger in 1837 in case of
Priestley v/s Fowler in which a butcher's man was ordered to deliver meat from a van. The van
was overloaded negligently by a fellow servant. This resulted in breaking down of the van and the
butcher's man was injured. In an action against the master for Tort committed by fellow servant,
the master was held not liable in the ground that if the action is allowed, it would increase the
responsibility of the master to an alarming extent.
To plead this defence 2 conditions are required:
* Both the wrong doer and the injured party must be the fellow servants.
* At the time of the accident, they must have been engaged in common employment.

2. Write any one for 6 Marks

a. Write short note on Employer and Independent Contractor how it is different from
Servant (6 Marks)
Employer and Independent Contractor:
 35

An employer is liable for the tort committed by his servant and is not liable for the tort committed
by an independent contractor. The reason is the employer exercises Control over the work done by
his servant, and does not have any control over the independent contractor who exercises
discretionary power in performing the work entrusted to him.
An independent contractor is one who undertakes to produce a given result without being in any
way Controlled as to the method by which he attains that result. Example: if the owner of a vehicle
sends it to a garage for repairs and the mechanic in the garage commits an accident while testing
the vehicle, then the owner of the vehicle is not liable, but the owner of the garage who is an
independent contractor will be held responsible for the tort.
Distinction between servant and independent contractor:
SERVANT INDEPENDENT CONTRACTOR
Servant acts under the control and supervision Independent contractor acts independently.
of the master
Employer - employee relationship exists Contractual relationship exists between
between master and servant. employer (master) and independent contractor.

If the servant commits tort his master is liable. The independent contractor us liable for the
tort committed by his servant. In case there is
a fault on the part of the employer, the
employer is liable.

The servant can be suspended or terminated by The independent contractor cannot be

his master. suspended or terminated by the employer.
However the employer can repudiat the
contract, if the independent contractor violates
the terms of the contract.

Cases:
In Morgan v/s Incorporated Central Council, the defendant company had entrusted the
management of lift to an independent contractor. The plaintiff was injured when he fell down from
 36

an open lift shift. He sued the defendant. It was held that the defendant was not liable and the
plaintiff had to sue the independent contractor.
In Govindarajulu v/s M.L.A. Govindraja Mudaliar, the owner of a lorry entrusted it to a repairer
for getting it repaired. While it was in the custody of the repairer, one of the employees of the
repairer drove the lorry, and caused an accident driving the lorry negligently. The injured sued the
owner for compensation. It was held that the owner of the lorry was not liable, the lorry being
entrusted to an independent contractor to get it repaired. the repairer was held responsible.
Exceptions- there are certain circumstances under which the employer is held liable for torts
committed by independent contractor.
a. Illegal or unlawful act: where an employer employs an independent contractor for
undertaking an unlawful or illegal act, and a tort us committed thereby, the employer is
liable.
In Ellis v/s Shefield Gas Co., The defendant's Co. Unlawfully employed contractors for laying
their gas pipes in the streets. The workmen negligently left a heap of stones on the road and thereby
the plaintiff was injured. The defendant was held is liable.
b. Personal fault of employer: Where an employer employs an incompetent Contractor and
a tort is committed due to such incompetence, the employer is liable. Similarly if the
employer intervenes as to the mode of work, the employer is Liable for a tort as a
consequence of such interference.

c. Strict Liability: There are certain circumstances under which a person becomes liable in
tort without any fault of his own of any intention or negligence. The liability is strict. This
liability arises from a breach of duty. The concept of strict liability was created for the first
time in Rylands v/s Fletcher's case, where the defendant, who employed a competent
engineer for construction of a reservoir, it was held liable for the tort committed by the
servants employed by the engineer.

d. Statutory Duty: Where a statute requires a person to do a particular act and an independent
contractor is employed for the purpose, in such a case the employer is liable if a tort is
committed by independent contractor.
 37

e. Hospital Cases: earlier hospital authorities were not liable for the Torts due to the
negligence of their professional staff on the ground that they lack control over them. But,
now the hospital authorities are liable for the professional negligence of their staff.
Cassidy v/s Ministry of Health, in this case the hospital authorities were held liable for negligence
of the house surgeon and other staff for rendering the plaintiff's hand useless during post
operational treatment.

f. Implied Warranty: where there is an implied warranty by the employer, he is liable for
the negligent act of independent contractor.

(OR)

b) Write a note on Liability of the state. (6 Marks)

Vicarious liability of the State:

At common law, the crown could not be sued in tort, either for wrong actually authorized by it or
committed by its servants, in the course of their employment. Moreover, no action could lie against
the head of the department or other superior officials for the acts of their subordinates for
relationship between them, was not of master and servant but of fellow servants. The individual
wrongdoer was personally liable, and he could not take the defence of orders of the crown, or state
necessity. The Immunity of the crown from liability did not exempt the servant from liability. The
result was that, whereas an ordinary master was liable vicariously for the wrong done by his
servant, the government was not liable for a tort committed by its servants.
Position in India: Art. 300 of the Indian Constitution provides that the Union and the State
government can sue and be sued. A distinction was drawn between the sovereign and non-
sovereign functions of the East India Company.

It was held that the act was done in the exercise of sovereign functions, the East India Company
would not have been liable, but if the function was a non sovereign one that is, which could have
been performed by a private individual without any delegation of power by the government, the
company would have been liable.
 38

In Vidyavathi v/s Lokumal, AIR 1957 Raj 305, the plaintiff's husband died after being hit by a
government jeep which was driven rashly and negligently by an employee of the state of Rajasthan.
At the time of the accident, the car was being taken from the workshop to the collector's bungalow
for his use. In an action against the state of Rajasthan the state was held liable. The Rajasthan High
Court did not find any reason for treating the state differently from an ordinary employer and held
the state liable.

Inspite of the decision of the supreme court in Vidyavathi's case, the position is not very certain
and satisfactory. The SC in case of Kasturi Lal v/s State of UP (AIR 1965 SC 1039) has again
stated that if the act of the government servant was one which could be considered to be in
delegation of sovereign powers, the State would be exempted from liability, otherwise not.
In this case, a partner of a firm of jewellery in Amritsar, Kasturi Lal went to Meerut, reaching there
by train in the midnight. He was carrying a lot of gold and silver with him. The police constables
on round in the market, through Which he was passing. Suspected that he was in possession of
stolen property and was taken to the police station. He was Kept in the Police custody under the
provisions of the criminal procedure code, and was released on bail the next day. The silver was
returned to him, but the gold which was kept in the Police storeroom was misappropriated by the
head constable, Mohammed Amir, who later ran away to Pakistan. The plaintiff brought an action
against the state of UP. The SC held that, since the negligence of the police officers was in the
exercise of statutory powers, which can also be characterized as sovereign powers, the state was
not liable for the same.

Kasturi Lal bypassed: Under the circumstances in which the state would have been exempted
from liability if Kasturi Lal had been followed, the state has been held liable in respect of loss or
damage either to a property or to a person in later cases.
Liability of electricity board in electrocution: the courts have taken serious note of negligence in
the part of electricity boards In not regularly making inspection of supply lines, supervising safety
of land and theft from supply lines. In cases where death is caused by electrocution due to falling
of electric pole on the passer by or even in case of negligence on the part of the consumer, drawing
illegal connection by hooking from electric lines, the electricity boards have been held liable to
pay damages.
 39

Sovereign immunity is subject to fundamental rights: in Bhim Singh v/s state of J&K, the
petitioner, who was an M.L.A was wrongfully detained by the police, and thus prevented from
attending assembly session. The SC ordered the payment of Rs.50,000/- by compensation to the
petitioner.

In Rudul Sah v/s State of Bihar and Saheli v/s Commissioner of police, Delhi, the SC recognised
the liability of the state to pay compensation, when the right to life and personal liberty, as
guaranteed, under art.21 of the Indian Constitution had Been violated by the officials if the state.

Loss to property: When the property is in possession of the state officials, there is deemed to be
bailment of the property, and the state as the bailee, has been held bound to either return the
property or pay compensation for the Same.
In the dynamic society where there are so many changes taken place the application of loss also
need to be extended to cover a wider section of society, thus the concept of vicarious liability is
being extended to the state also, and the government also is held liable for the tortious acts of its
servants.

Unit 3
1. a. What is Negligence and explain its essential elements. (10 Marks)
Negligence has been defined as “breach of a legal duty to take care which results in damage,
undesired by the defendant to the plaintiff”.

The jurisprudential concept of negligence defies any precise definition. The Apex Court in Jacob
Mathew vs state of Punjab has observed that negligence is the breach of duty caused by the
omission to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs would do or doing something which a prudent
man would not do, towards a person to whom the defendant owes the duty of observing ordinary
care and skill, by which neglect the plaintiff has suffered injury to his person or property.
Lochgelly Iron and Coal Co. vs M.Mullan, Lord Wright observed that “negligence means more
than needless or careless conduct, whether in omission or commission; it properly connotes the
 40

complex concept of duty, breach and damage thereby suffered by the person to whom the duty was
owing.”

The definition given by Alderson assumes a duty to take care; it also assumes that the degree of
care is to be measured by the standard of a reasonable man.

So negligence is a breach of duty to take care may be imposed by statute or it may arise due to
relation in which one may stand to another. i.e, when the person or property of one is in such
proximity to the person or property of another that if due care is not taken, damage may be caused
by one to the other.

Negligence as a tort and crime – The term negligence is used for the purpose of attaching the
defendant with liability under the civil law and at times under the criminal law. Generally, it is the
amount of damages which determines the extent of liability in tort, but in criminal law it is not the
damages but the amount and degree of negligence that determines liability.
In order to hold that the existence of criminal rashness or criminal negligence was there, it shall
have to be proved that the rashness was of such a degree as to amount to taking risk knowing that,
the risk was of such a degree that injury was most likely imminent.

Negligence has two meanings in law of torts-

1) Negligence as a mode of committing certain torts example- negligently or carelessly committing
trespass, nuisance or defamation. In this context, it denotes the mental element.

2) Negligence is considered as a separate tort. It means a conduct which creates a risk of causing
damage, rather than a state of mind. The House of Lords in Donoghue vs Stevenson treats
negligence where there is a duty to take care, as a specific tort in itself, and not simply as an
element in some more complex relationship or in some specialised breach of duty.

Essentials of Negligence
In an action for negligence, the plaintiff has to prove the following essentials-
1) The defendant owed duty of care to the plaintiff,
 41

2) The defendant made a breach of that duty or failed to perform that duty.
3) The plaintiff suffered consequential damage because of that.

1) That the Defendant owed a duty of Care: Negligence is not but breach of a duty to take
care. That duty arises by reason of relationship in which one person stands to another
person or authority.

Such relationship may arise in a variety of circumstances. The basic duty of care or precaution is
always implied where a danger has been created by a person or authority, irrespective of the fact
as to whether the Legislature has authorized or not the creation of such danger.
It means a legal duty rather than a moral religious or social duty. The plaintiff must establish that
the defendant owed to him a specific legal duty to take care, of which he has made a breach.

Lord Atkin propounded the rule in Donoghue vs Stevenson (Ginger Beer Case) and said you
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. In this case, a retailer sold a bottle of ginger-beer to a person, say
X. X offered the contents of the bottle to the young women (plaintiff).

The plaintiff consumed the contents of the bottle which included the decomposed remains of snail.
The ginger beer was in an opaque bottle of dark colour and as such any foreign element could not
be detected by inspection.

The Plaintiff sued the manufacturer (from whom the retailer had purchased the bottle) for
negligence alleging that she became seriously ill after consuming the contents of the bottle.
The question before the court was whether the manufacturer owed a duty to care towards the
plaintiff.

Lord Atkin observed “ A manufacturer of products, which he sells in such a form as to show that
he intends them to reach the ultimate consumer in the form as to show that he intends them to
reach the ultimate consumer in the form in which they left him with no reasonable possibility of
intermediate examination and with the knowledge that the absence of reasonable care in the
 42

preparation or putting up of the products will result in any injury to consumer’s life or property,
owes a duty to the consumer to take that reasonable care in the preparation or putting up of the
products will result in any injury to consumer’s life or property, owes a duty to the consumer to
take that reasonable care. The defendant was liable in this case.

Grant v. Australian knitting mills ltd, In this case the plaintiff purchased two sets of woolen
underwear from a retailer and contracted a skin disease by wearing underwear. The woolen
underwear contained an excess of Sulphates which the manufacturer had negligently failed to
remove while washing them. The manufacturers were held liable. Thus a manufacturer may owe
a duty of care to the ultimate consumer independently of contract.
Duty depends on reasonable foreseeability of injury-
Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of
the injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably
foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes
him liable. To decide the guilt of a person, we have to determine what a reasonable man would
have foreseen.

In the case of S.Dhanaveni vs State of Tamil Nadu, the deceased slipped into a pit filled with
rain water in the night. He caught hold of a nearby electric pole to avoid falling. Due to leakage of
electricity in the pole he was electrocuted. The respondent who maintained the electric pole was
considered negligent and was held liable for the death of the person.

Dr. M. Mayi gowda vs State of karnataka (II 1996 CP.J. 307), The complainant and 5 children
of his family took an elephant joy-ride on 7.10.1972 at about 8.P.M. in Mysore Dasara Exhibition
ground after having purchased tickets for the same. After taking a number of rounds while the
complaints and other persons were in the process of getting down the cradle, the elephant became
panicky in that rush hour and ran forward.

The complainant was thrown on the ground as a result of which he received serious injuries
resulting in total loss of eyesight of both the eyes. He was a medical practitioner. He claimed
compensation of 9,90,000/-
 43

It was found that it was a female elephant having participated in such rides and festivals for 13
years. It had acted in film shootings, various religious functions and honouring the V.I.P’s. It was
held that there was no negligence on the part of the opposite parties who had organized the joy-
ride. The reason of the accident was unusual and unfortunate behavior of the elephant, and
therefore the complaint was dismissed.

Rural transport service v. Bezlum bibi (AIR 1980 CAL 165), in this case the conductor of an
overloaded bus invited passengers to travel on the roof of the bus. On the way, the bus swerved on
the right side to overtake a cart. One of the passengers on the roof of the bus, Taher Seikh, was
stuck by an overhanging branch of a tree. He fell down and received multiple injuries on the head,
chest etc. and as a consequence thereof he died.
In an action by Bezlum Bibi, the mother of the deceased, it was held that there was negligence on
the part of both the driver and the conductor of the bus, and the defendant was held liable for the
same.

In Municipal corporation of delhi v. Subhagwanti (AIR 1966 S.C 1750), a clock tower situated
in the heart of the city i.e., Chandni Chowk, Delhi collapsed causing a death of a number of person.
The Structure was 80 years of old whereas its normal life was 40-45 years.
The Municipal corporation of Delhi, which was having control of the structure had obviously failed
to get the periodical check up and necessary repairs done. The Defendant corporation was,
therefore, held liable to pay compensation for the consequences of the collapse of the structure.

The Municipal Board Jaunpur, v. Brahm Kishore (AIR 1973 PAT. 168), The defendant had dug
a ditch on a public road. The Plaintiff who was going on his cycle in the evening could not observe
the ditch in the darkness fell into it and was injured. The defendant had failed to provide light,
danger signal, caution notice or barricade, etc to prevent such accidents and was therefore held
liable.
 44

It was also observed that the fact that the cyclist did not have any light fixed in the front of the
cycle did not make any difference because light of the Kerosene lamp, which the cyclists generally
use, could not still make the ditch visible.

No liability when injury not foreseeable-

In Cates v. Mongini Bros, the plaintiff, a lady visitor to a restaurant was injured by the falling of
a ceiling fan on her. The reason for the falling of the fan was a latent (hidden, not seen) defect in
the metal of the suspension rod of the fan which could not have been seen by a reasonable man. In
an action against the restaurant owner, it was held that since the harm could not be seen, they were
not negligible and therefore not liable for the loss to the lady plaintiff.

Ryan v. Youngs, The defendant’s servant, while driving a lorry, suddenly died, which resulted in
an accident and consequently injury to the plaintiff.
The driver appeared to be quite healthy and the defendant could not foresee his sudden death. It
was held that the accident was due to an Act of God and, the defendant was not liable for the same.

Reasonable foreseeability does not mean remote possibility –

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

In Bolton v. Stone, The defendants were the committee and members of a cricket club. A batsman
hit a ball whish went over a fence seven feet high and seventeen feet above the cricket pitch and
injured the plaintiff on the adjoining highway. The ground had been used for about ninety years
and during the last thirty years, the ball had been hit in the highway on about six occasions, but no
one had been injured. The House of Lords held that there was no liability as the chance of a person
being hit in a long time was very small.

Fardon v. Harcourt-rivington, the defendant parked his car by the road side and left a dog inside
the car. The dog jumped about and smashed a glass panel. A splinter from this glass injured the
plaintiff while he was walking past the car.
 45

It was held that the accident being very unlikely there was no negligence in not taking a precaution
against it and therefore the defendant was not liable.

In Sukhraji v. State road transport corporation, calcutta (AIR 1966 CAL 620), The plaintiff’s
son a boy of 14 years got down from a moving tramcar and while he tried to cross the road, he was
run over by an omnibus which was about to overtake the said tramcar and on seeing the boy in
front of his bus, the driver of the omnibus had applied the brakes with all his might but the boy
could not be save.
It was held that the driver of the bus could not anticipate that certain passengers would jump off a
moving tramcar that no one was getting down from it.
If somebody suddenly came in front of a fast moving vehicle like omnibus without any warning
to the driver, the driver cannot be made liable for negligence. It was held to be negligence on the
part of the deceased himself.

2) That the defendant either committed a breach of that duty or failed to perform that duty
(Breach of duty)
Breach of duty means non-observance of due care which is required in a particular situation. It is
said that the standard of care required is that of a reasonable man or of an ordinary prudent man
and if the defendant acted like an ordinary prudent man there is no negligence.

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

(a) The importance of the object to be attained- The care required is that of a reasonable man
under certain circumstances and law permits taking chance of some measure of risk so that
in public interest various kinds of activities should go on. A balance has therefore to be
maintained between the importance and usefulness of an act and the risk created thereby.
 46

Thus, a certain speed may not be negligence for a fire engine, but the same speed may be
an act of negligence for another vehicle.

The law does not require greatest possible care but the care required is that of a reasonable man
under certain circumstances. The law permits taking chance of some measures of risks so that in
public interest various kinds of activities should go on.
Ex:- a certain speed of a fire engine or a ambulance vehicle but the same speed may be an act of
negligence for another vehicle.

Latimer v. A.e.c ltd, in this case due to an exceptionally heavy rainstorm, the respondent’s factory
was flooded with water. Some oily substance got mixed with water. After the water drained the oil
remained on the floor and became slippery. Respondents spread sawdust on the floor but certain
places it was not spread due to lack of supply.
The appellant, one of the employee in the factory slipped and got injured. He sued the respondents
for negligence and contended that the respondents should have closed down the factory as
precautions until the danger have disappeared. The court held that the risk created by slippery floor
was not so great as to justify the precaution of closing down the factory with over four thousand
workmen. The respondents had acted like a prudent man and therefore they were not liable for
negligence.

(b) The magnitude of risk- The degree of care required differs according to each situation.
What may be a careful act in one situation may be a negligent one in another. Thus, the
driver of a vehicle should take greater care when it is raining, and greater care is also
required when while transporting inflammable and explosive materials than in transporting
ordinary goods.

The law does not demand the same amount of care under all situations. The kind of risk involved
determines the precautions which the defendants is expected to take.
 47

Mysore state road transport corporation v. Albert disa, in this case the Negligence is failure
in the duty to take due care. The expression “due” connotes that degree of care which a reasonable
man ought to take in a given set of circumstances.

In deciding what care was called for by a particular situation, one useful test is to enquire how
obvious the risk must have been to an ordinary prudent man. The question in each case, therefore
depends upon its own facts. The degree of care depends upon the magnitude of risk which could
have been foreseen by a reasonable and prudent man.

Other Examples like:-

• The driver of a car have to take more care when it is drizzling than on a normal day.
• The person carrying a loaded gun should take more care than carrying a stick.
• Great care should be to by vehicle carrying petrol than a vehicle carrying milk.
In Nirmal .v. Tamil nadu electricity board (A.I.R 1984 MAD 201), the High tension wire
running over a farm got snapped and the plaintiff’s husband, who treaded upon the wire, was
instantaneously struck dead by electrocution.
It was held that the defendants, who were maintaining he said wire had failed to maintain them
properly, which made the wires to snap and they had further failed to provide a device whereby
the snapped wire would have automatically become dead and harmless. The defendants were held
liable for negligence.

In Bhagwat Sarup vs Himalaya Gas Co. ( AIR 1985 H.P.41), The plaintiff booked replacement
of a cooking gas cylinder with the defendant, who had the gas agency in Shimla. The defendant’s
delivery man took a cylinder into the plaintiff’s house.

The cap of the cylinder being defective he tried to open it by knocking at the same with the axe.
This resulted in damage to the cylinder and leaking of gas from there. Some fire was already
burning in the kitchen and the leaked gas also caught fire.

As a consequence of the fire, the plaintiff’s daughter died, some other family members received
severe burn injuries and some property inside the house was also destroyed by fire. It was held that
 48

the defendant’s servant was negligent in opening the cylinder and the defendant was liable for
consequences of such negligence.

Glasgow Corp vs Taylor, in this case poisonous berries were grown in a public garden under the
control of the Corporation. The berries looked like cherries and were attractive to look at for
children. A child aged seven, ate those berries and died. It was found that there was no fencing
around the tree, and no notice was there warning about the poisonous fruit. The court held the
defendants liable.

The amount of consideration for which services etc are offered

The degree of care depends on the kind of services offered by the defendant and the consideration
charged from the plaintiff.

Examples:- A patient admitted to a luxury hospital for about Rs.3000 or 5000 a day would be
justified in demanding higher and sophisticated degree of care, comfort, convenience and recovery
than just sterilization from infection as could be expected in the general ward of a hospital.

A guest house or a star hotel worth of Rs. 3000 or more a day would justified in demanding higher
levels of care compared to a hotel of lesser amount.

3)Damage- It is also necessary that the defendant’s breach of duty must cause damage to the
plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a
consequence of the defendant’s negligence.

The duty to assess the damages is however entirely upon the court. In doing, the court resorts to
the rules which regulate the practice of court.
(OR)
1b. Explain the concept of Strict Liability and write how it is different from Absolute
Liability. (10 Marks)
STRICT LIABILITY:-
 49

The Human activities can be classified from the point of view of their social utility they can be
classified into 3 groups.
1. Those which are prohibited by law such as crime.
2. Activities which are not prohibited by law that is, they are legally permissible.
3. There is yet another category or activities which the law could have prohibited but it has
not done so because restricting them would have stumbled the social development and
progress.
Example: new scientific inventions, experimentation with explosives, poisonous gas, etc. which is
very much required for human development.

So a person may carry on these adventure-orientation activities but he has to do so at his own risk
and he shall be liable for all consequences flowing from such activities whether he did them
carefully or negligently.
There are situations when a person may be liable for some harm even when he is not negligent in
causing the harm, or there is no intention to cause to cause the harm, or sometimes he may even
have made some positive efforts to avoid it. Sometimes the law recognizes ‘No fault liability’ and
this was laid down by the House of Lords in Rylands vs Fletcher and also in another case M. C.
Mehta vs Union of India (1987) by the Supreme Court of India.

In Rylands vs Fletcher, The defendant was an owner of a mill in Answorth. He wanted to improve
water supply for his mill therefore, he employed the services of independent competent Engineers
to construct a reservoir.

In course of excavation work they notices some old shafts and passages to defendant’s land but
did not block them. When the water was filled in the reservoir it ran through the porus shafts and
flooded the plaintiff’s coal mines on the adjoining land.

The defendant did not know about the shafts nor was he told about them by the qualified engineers
who constructed the reservoir. When the plaintiff sued the defendant for damages, the court found
that defendant was not negligent although the independent contractors were found to be negligent.
But still the court held the defendant liable on the principle propounded by court of
 50

Exchequer Chamber as follows:-

“The person who for his own purposes brings on his land and collects and keeps there anything
likely to do mischief if it escapes, must keep it in at his peril, and , if he does not do so, is prima
facie answerable for all the damage which is the natural consequence of its escape.
These escapable things may include fire, gas, vapours, noise, smoke, petrol, electric current,
explosives, dangerous animals, water etc, any amount of carefulness on his part is not going to
save him from liability where his activity falls within description of Rylands vs Fletcher rule.
Since liability arises even without fault or negligence on the part of the defendant, the rule has also
been called the principle of Strict liability.

According to the rule, if a person brings on his land and keeps there any dangerous thing that is a
thing which is likely to do mischief if it escapes, he will be liable for the damage caused by its
escape even though he had not been negligent in keeping it there. The liability arises not because
there was any fault or negligence on the part of a person, but because he kept some dangerous
thing on his land and the same has escaped from there and caused damage. Since the liability arises
in such even without negligence on the part of the defendant, it is known as the rule of Strict
Liability.

The essential conditions of Strict Liability are:

1) Some dangerous thing must have been brought by a person on his land- The liability for
the escape of a thing from one’s land arises, provided the thing collected was a dangerous
thing that is a thing likely to do mischief if it escapes. This rule has been applied to gas,
electricity, sewage, explosives etc.
The first essential condition for the application of the rule is that the defendant must have brought
on his land and kept there some dangerous things or anything likely to do mischief if it escapes.
The rule has been limited to bringing and keeping on land dangerous thing which if escapes will
do damage. That is to say, the rule has been limited to the things which are likely to escape and by
escaping do damage or increase dangers to others.
2) Escape- For this rule to apply it is also essential that the thing causing the damage must
escape outside the control of the defendant and out of the premises of the defendant.
 51

Yet another essential condition for the application of the rule is that the dangerous thing or anything
likely to do mischief must escape. Mere brining and keeping a dangerous thing on one’s land is
not an actionable wrong. Liability arises only when the dangerous thing escapes. If there is no
escape there will be no liability.
3) Non- natural use of land- The defendant is also answerable if, in bringing the thing there,
he is making a non- natural use of his land. It must be some special use bringing with it
increased dangers to others and must not be the ordinary use of the land or such a use as is
proper for the general benefit of the community.
If the defendant bring or accumulates on his land something for a non-natural use of land itself
attracts the rule of Strict Liability.

Noble vs Harrison, A Branch of a beech tree growing on defendant’s land was overhanging the
highway and in a fine weather it suddenly broke and fell upon plaintiffs vehicle which was passing
along the highway. The breaking of the branch was sudden and undiscoverable.
Therefore this was held to be the natural used and the case was not covered under the Rylands V.
Fletcher rule. Defendant was held not liable.

Exceptions to the rule:

(i) Plaintiff’s own default- Damage caused by escape due to the plaintiff’s own default was
considered to be good defence in Ryland’s v. Fletcher itself. If the plaintiff suffers damage by his
own interference into the defendant’s property, he cannot complain about the damage so caused.
In Ponting v. Noakes the plaintiff’s horse went into the defendant’s land and died after eating the
leaves of a poisonous tree there. It was held that the defendant was not liable because the horse
had gone to the defendant’s land and ate the leaves.

(ii) Act of God- Act of God or Vis major was also considered to be a defence to an action under
this rule.

(iii) Consent of the Plaintiff- In case of volenti non fit injuria that is where the plaintiff has
consented to the accumulation of the dangerous thing on the defendant’s land, the liability under
this rule does not arise. Such a consent is implied.
 52

(iv) Act of third party- If the harm has been caused due to the act of a stranger, who is neither the
defendant’s servant nor the defendant has any control over him, the defendant will not be liable
under this rule.

(v) Statutory Authority- An act done under the authority of a statute is a defence to an action for
tort. The defence is also available when the action is under the rule in Rylands v. Fletcher. Statutory
authority however cannot be pleaded as a defence when there is negligence.
This rule of Strict Liability is applicable as much in India as it is in England.

DIFFERENCE BETWEEN STRICT LIABILITY AND ABSOLUTE LIABILITY

1. The rule in Rylands vs Fletchers arose due to situation where something unusual brought
on the land while the rule in M.C.Mehta vs Union of India arose due to use of enterprise
(Company).
2. The rule in M.C.Mehta vs Union of India will not depend non-natural use of land and
escape from that land of the defendant to impose this strict liability, which were necessary
aspects of the rule in Rylands vs Fletcher. The only specific and significant requirement
is that the enterprise must have engaged in hazardous and inherently dangerous activity,
and the harm engaged in hazardous and inherently dangerous activity, and the harm should
have resulted out of such activity.
3. The rule in Rylands vs Fletchers does not envisage compensating the harm caused to
persons within the premises because the rule requires escape of the thing, which causes
harm from the premises. The rule in M.C.Mehta vs Union of India makes no such
distinction between persons within the premises where the enterprise is carried on and
persons outside the premises is not a necessary condition for the applicability of the rule.
4. The rule in Rylands vs Fletchers is strict as liability is not dependent on any negligence on
the part of the defendant; however, it is not absolute because it is subject to exceptions.
However, the rule in M.C.Mehta vs Union of India is not only strict but also, it is not subject
to any exception.
 53

5. Damages available where the rule in Rylands vs Fletchers applies, will be ordinary or
compensatory but in cases of the rule in M.C.Mehta vs Union of India applies, the court
can allow exemplary damages and the larger and more prosperous the enterprise, the
greater must be the amount of compensation payable by it.
6. The effect of damages in the cases such as M.C.Mehta vs Union of India is wide and covers
a larger group of society whereas the effect of damage in the cases such as Rylands vs
Fletchers is limited to the neighbours only.

2. a. State the differences between Private Nuisance and Public Nuisance. (6 Marks)

No Public Nuisance Private Nuisance

1 Meaning: Meaning:

According to Section 268 of IPC Public Nuisance Is a Private Nuisance means any
Criminal Offence. It means any illegal act or illegal act of omission causing
omission causing injury, obstruction, danger or injury or danger to any
annoyance to public in general or public at Large. individual or his property in
particular.

2 Definition: Definition :

A person is guilty of a public nuisance who does any Private nuisance may be defined
act or is guilty of an illegal omission which causes any as unlawful interference with
common injury, danger or annoyance to the public or another's use and enjoyment of
to the people in general who dwell or occupy property property or someone's right over
in the vicinity, or which must necessarily cause injury, or in connection with property.
obstruction, danger or annoyance to persons who may
have occasion to use any public right. (Section 268 (Private nuisance is not defined
Indian Penal Code) in Indian Penal Code)

3 Nature: Nature:

It affects the public at large. It affects only Individuals or

determinate body thereof.
 54

4 Right To sue: Right To sue:

Any public motivated or spirited person or A private individual or his legal

organization or association can sue. representative, to whom or to
whose property injury is caused
can sue.

5 Remedy: Remedy:

Injunction restraining from doing any illegal act or Damages can also be claimed
omission. with injunction.

(OR)

b. Write a brief summary on Remoteness of Damage. (6 Marks)

Remoteness of Damage: -

The Problem of Remoteness of Damage- After the commission of a tort, the question of
defendant’s liability arises. The consequences of a wrongful act maybe endless or there maybe
consequences of consequences.

For example, a cyclist negligently hits a pedestrian who was carrying a bomb in his pocket. When
the pedestrian falls down the bomb explodes. The pedestrian and four other persons going on the
road die and twenty other people are seriously injured due to the explosion. A building nearby
catches fire due to the same explosion and some women and children are seriously injured. The
question is, can the cyclist be liable for all these consequences.

He is liable only for those consequences which are not too remote from his conduct. No defendant
can be made liable ad infinitum (endlessly) for all the consequences which follow his wrongful
act. On practical grounds, a line must be drawn somewhere and certain kinds or types of losses,
though a direct result of the defendant’s conduct may remain uncompensated.

Remote and Proximate Damage- The point to be taken into consideration is to see whether the
damage is too remote a consequence of the wrongful act or not. If that is too remote, the defendant
is not liable. But if the act and the consequences are so connected that they are not too remote but
 55

are proximate the defendant will be liable for the consequences. There are two main tests to
determine whether the damage is remote or not.

1) The 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 to remote. If, on other hand a
reasonable man would not have foreseen the consequences they are too remote.

The Wagon Mound Case- Overseas Tankship (U.K) Ltd v. Morts Dock and Engg Co. Ltd, in
this case the Wagon Mound, an oil burning vessel was chartered by the appellants, Overseas
Tankship Limited, and was taking fuel oil at Sydney port. At a distance of about 600 feet, the
respondents Morts Dock Company, owned a wharf, where the repairs of a ship including some
welding operations were going on. Due to the negligence of the appellant’s servants a large
quantity of oil was spilt on the water and after some time spread on the water till the respondent’s
wharf. About 60 hours later hot metal from the respondent’s wharf fell on floating cotton waste,
which ignited the fuel oil on the waters and the fire caused great damage to the wharf and
equipment. It was also found that the appellants could not foresee that the oil so spilt would catch
fire. The trial court applied the rule of directness and held the Overseas Tankship Ltd. liable. The
Supreme Court also held the company liable. On appeal the Privy Council reversed the decision
of the Supreme Court.

2) The Test of Directness- According to the test of directness, a person is liable for all the direct
consequences of his wrongful act, whether he could have foreseen them or not, because
consequences which follow a wrongful act are not too remote. If the defendant could foresee any
damage to the plaintiff then he is liable not merely for those consequences which he could have
foreseen, but for all the direct consequences of his wrongful act.

In Re Polemis, in this case the defendants chartered a ship. The cargo to be carried by them
included some tins containing benzene and petrol.
 56

Some of the tins were leaking and the liquid got collected in the hold of the ship. While handling
the planks, a plank fell into the hold due to the negligence of the defendant’s servant and as a result
of this, the ship was totally destroyed due to fire.

The plaintiff claimed damages for the,

1. Loss of ship
2. Loss of business for the period intervening purchasing a new ship
3. Extra expenditure on purchase of a new ship.

The court awarded the owner of the ship 2,00,000 £ (Euros) being consequences of the negligent
act of defendant’s servants. The court observed that “once the act is negligent, the fact that its
exactconsequences were not foreseen is immaterial.
In Liesbosch bredger v. Edison, The dredger (machine for shallow water works) Liesbosch was
sunk due to the negligence of the defendant. The owners of this dredger required it for the
performance of a contract with a third party, but since they were too poor to purchase a new
dredger, they had hired this one at an exorbitant rate.

They sued the defendant for 1. The price for the dredger and 2. Hire charges which they had to pay
from the date of sinking of Liesbosch to the date they could actually purchase a new one. The court
allowed damages for the first head but not the second one because the court considered this loss is
due to extraneous cause i.e. poverty of the plaintiff and therefore, it was too remote.

In Smith v. London and South Western Rly Co, The Railway company negligently allowed a
heap of trimmings of hedges and grass near railway line during hot weather. The spark coming
out of the railway engines set fire to the hay and grass which spread and reached the plaintiff’s
cottage which completely burnt.

The railway company was held liable even though it could not have foreseen the loss of the cottage
which was far away from the railway track.

The Test Of Reasonable Foresight (Foreseeability Test)-

 57

The cause and effect test could be applicable to only a limited number of cases wherein direct
consequences of a wrongful act could be ascertained.

However, considering the inadequacies of directness test, the judicial committee of the Privy
Council considered it proper to decide the appeal before it in Overseas Tankship (UK) Ltd. vs
Morts Dock and Engineeering Co. Ltd. Applying the foreseeability test which is also termed
as the test of Reasonable Foresight, the facts of the case in short were as follows.

The Wagon Mound an oil burning Vessel, was chartered by the appellants, Overseas Tankship
Ltd, and was docked at Sydney Port for taking fuel oil. The respondents, Morts Dock co. owned a
wharf about 600 feet away from this vessel where the repairs of a ship and some welding operations
were being done.
Due to the negligence of the appellant’s servants a large quantity of oil spread over the water near
respondent’s wharf. The molted metal from the respondent’s wharf fell on floating water which
ignited the fuel oil on the water and the fire caused severe damage to the Wharf and to other
equipments.

The Trial court held the Overseas Tankship Ltd. liable as the damage caused to the wharf was
direct consequence of defendant’s act. In appeal the decision was confirmed by the Supreme Court
of New South Wales on the basis of directness test.

On appeal, the Privy Council observed that Re Polemis was no longer a good law and reversed the
decision of the Supreme Court applying the ‘reasonable foresight’ test. It was held that a reasonable
man under the circumstances of the case could not foresee such damages and therefore, the
appellants were held not liable for negligence of their servant even though their negligence was
the direct cause of damage caused to the Wharf.

In King v. Phillips, a taxicab driver negligently backed his taxi which hit a small boy who was on
a tricycle. The injury to the boy and his tricycle was slight, but his mother looking out of an upstairs
window about 600 meters away, heard scream of the boy and the tricycle under the taxicab but
could not see the boy.
 58

Consequently, she suffered nervous shock thinking her child might have been seriously injured,
though in fact, the boy eventually came home.

The court appeal dismissed her claim for damages against the negligent taxicab driver and held
that the driver could have reasonably foreseen an injury to the child but could not be expected to
have foreseen an injury or nervous shock to the boy’s mother who was far away and was out of
his sight.

In other words there was no duty on the part of the driver to anticipate emotional shock to the
mother who was away from the road hence the damages were too remote.

Unit 4
1. a. Explain False Imprisonment and its essential conditions. (10 Marks)
False imprisonment consists in the imposition of a total restraint for some period, however short,
upon the liberty of another, without sufficient lawful justification. If a man is restrained by a threat
of force, from leaving his own house or an open field, there is false imprisonment.

False imprisonment consists in the imprisonment or a total restraint for some period, however
short, upon the liberty of another, without sufficient lawful justification. Winfield defines ‘false
imprisonment’ as the “infliction of bodily restraint which is not expressly or impliedly authorized
by the law”.

Both ‘false’ and ‘imprisonment’ are somewhat misleading terms. ‘False’ does not necessarily
signify fallacious, but used in the less common sense of ‘wrongful’ or ‘unlawful’. ‘Imprisonment’
does not necessarily mean prison or jail. It need not mean incarceration. It actually means ‘total
restraint’ or ‘total confinement’ of a man’s liberty whether it be in the open field or in the street or
in a house.
 59

According to Black Stone, “Every confinement of the person is an imprisonment, whether it be in

a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the
public street”.

Every restraint of the liberty of one person by another is in law an Imprisonment and, if imposed
without lawful cause, constitutes a false imprisonment which is both a criminal offence and an
actionable tort.

‘False imprisonment’ is considered as ‘trespass to the person' as the wrong of false imprisonment
consists ‘the total restraint of the liberty of a person for however short a time without lawful
justification.’
In order to constitute the wrong of false imprisonment, the following conditions are necessary:
(i) There must be intentional confinement
(ii) Confinement must be such as to impose a total restraint on the freedom of movement.
(iii) There should be no lawful justification or unlawful detention.
(iv) Confinement, with the knowledge of the plaintiff.

I. Intentional Confinement
Confinement may be caused in many ways as -by means of physical barriers i.e. locking of the
doors of the room, by threat of force i.e. if a person holds pistol in front of any one and says “I will
shoot you, if you move”, or by assertion of legal authority to arrest a person, or by use of legal
process.

Confinement or imprisonment need not be in a common prison or gaol. Every confinement of the
person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks,
or even by forcibly detaining one in the public streets. Thus, to unlawfully prevent a man from
leaving his own house is imprisonment.

To form the confinement a wrongful imprisonment, the defendant must have acted with the intent
to confine or restrain the plaintiff otherwise it is not false imprisonment. For example, the owner
of a department store, having finished the day’s work thinking that all people had left locked the
 60

building and went away. In fact, one store girl was still in the store and she had to stay inside for
the whole night. The owner of the store could not be held liable for false imprisonment since there
was no intent. The owner was proceeding reasonably in conducting his own affairs. The intent of
the owner in looking the building was to keep people out and not to lock them in.

II. Total confinement (complete restraint of liberty)

One of the essential requirements for the tort of false imprisonment is that the restraint on the
liberty of the plaintiff must be complete or total and there was no other means of escape capable
to the plaintiff. When a person forces someone to be in a position against his will, for example A
is on the roof-top and B maliciously takes away the ladder and now A has no option to get down
and remains there against his will, it will tantamount to total restraint.

In Bird vs. Jones [(1845) QBPC 742], the defendant wrongfully enclosed a part of the public
footway on Hammer Smith Bridge for which he put seats in it for the use of spectators to view the
boat race in the river for which he collected fee. The plaintiff insisted on passing along this
enclosed part of the footpath, and claimed over the fence of the enclosure. The defendant refused
to let him go forward, but told him that he might go back into the carriage way and cross to the
other side of the bridge if he wished. The plaintiff declined to do so and remained in the enclosure
for thirty minutes. On being sued, it was held by the court that the defendant was not liable as
plaintiff’s movement was not restrained in every direction and he had means of escape as he was
free to go back or cross the bridge.

In Mee vs. Cruikshank, [1902 (86) LT 708], the plaintiff was a prisoner. He was acquitted. Again,
he was detained in a public street against his will by the defendant police for a few minutes. The
plaintiff was questioned by the wardens. It was held that it was false imprisonment.

III. Confinement or detention without lawful justification

Whenever a defendant unlawfully detains a plaintiff, even if the plaintiff does not know about his
detention, it amounts to false imprisonment. In order to constitute the wrong of false imprisonment
it is necessary that the restraint should be unlawful or without any justification.
 61

If a person is not released from jail after his acquittal but is continued to be detained thereafter, the
detention cannot be considered to be lawful. In Rudul Sha v. State of Bihar, [AIR 1983 SC 1086],
the petitioner was acquitted by the court in 1968 but was released from the jail in 1982 i.e. 14 years
thereafter. The state tried to justify the detention by pleading that the detention was for the medical
treatment of the petitioner for his mental imbalance. The plea was rejected.

IV. Knowledge of the plaintiff

There is controversy as to whether the plaintiff must have knowledge of his false imprisonment to
constitute a tort. In Grainger v. Hill, 1838 (4) Bing NC 212, it was held that there may be false
imprisonment even though the plaintiff is too ill to move.

In Meering vs. Grahame-White Aviation Co. Ltd. [1920 (122) LT 44], the plaintiff, an employee
of the defendant company was suspected of having stolen the company’s property i.e. varnish. He
was called to the company’s office and was asked to stay in the waiting room. He was told that his
presence there was required for investigation in connection with the property which had been
stolen. One or two employees remained outside the room where the plaintiff had been made to sit.
In the meantime the police was called and the plaintiff was arrested on the charge of theft. He was
acquitted and then he sued the defendant for false imprisonment. It has been held that the
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.

Atkin LJ. observed, “It appears to me that a person could be imprisoned without his knowing it.
I think that a person can be imprisoned while he is asleep, while he is in a state of drunkenness,
while he is unconscious and while he is a lunatic. Those are cases where it seems to me that the
person might properly complain if he was imprisoned, though the imprisonment began and ceased
while he was in that state. Of course, the damages might be diminished and would be affected ‘by
the question whether he was conscious of it or not.”
 62

As an ancillary relief, in a writ of habeas corpus by the petitioner, a sum of Rs.35,000 was granted
as compensation as an interim measure by the Supreme Court, without precluding the petitioner
from claiming further compensation.

In Bhim Singh v. State of J&K, [AIR 1986 SC 494], the plaintiff was a member of the Legislative
Assembly of the State of Jammu and Kashmir. He was arrested by police officers while, he was
on his way to Srinagar to attend the Legislative Session. He was detained without any lawful cause
and with a view to prevent him from attending Sessions of the Legislative Assembly. The petitioner
sued the State for damages contending that he was falsely imprisoned and his fundamental right to
personal liberty was violated. The court held that the police deprived the petitioner’s fundamental
right under Articles 21 and 22 (2) of the Constitution and granted compensation of Rs. 50,000/to
the petitioner. Section 50 of the Code of Criminal Procedure, 1974 insists that a policeman who
arrests a person should disclose to him the reason for the arrest. Otherwise, he will be liable for
false imprisonment.

In Garikapati vs. Araza Biksham, [AIR 1979 AP 31], the defendant made a false report to the
police, that the plaintiffs were instrumental in setting fire to defendant’s property. The plaintiffs
were arrested by the police but since the charge was false, they were discharged. The defendant
having made the complaint without any justification which resulted in the arrest of the plaintiffs,
he was held liable for false imprisonment.
The aggrieved party of a tort of false imprisonment is entitled to the following remedies:
a) Action for damages
b) Self help or self defence
c) Habeas corpus
Defences:
The defences to false imprisonment are as follows:
• Reasonable and honest belief in the existence of certain circumstances which, if true, would
justify the arrest as a good defence for false imprisonment in certain cases.
• Any person while exercising self-defence and thereby detains another it will not amount to
false imprisonment.
• Consent of the opposite party is also an effective defence in the case of false imprisonment.
 63

• Any authority when it is empowered under the law for the time being in force can detain
another for lawful purpose.
• When any person is detained for lawful cause, it cannot be a false imprisonment.
• When the plaintiff commits any act which amounts to contributory negligence, the defendant
can plead the defence of contributory negligence.
• If any person is detained due to inevitable accident it will not amount to a false imprisonment.
• The detention of minors, unsound persons by the parents or guardians from moving from
certain place in their interest cannot be a false imprisonment.
• In the interest of establishing peace in society certain authorities are empowered to detain
certain class of people to prevent danger to peace in the society in certain situations.
• Expulsion of trespasser is an effective defence under the law.

To conclude false imprisonment occurs when a person is restricted in their personal movement
within any area without justification or consent. Actual physical restraint is not necessary for false
imprisonment to occur. A false imprisonment claim may be made based upon private acts, or upon
wrongful governmental detention. For detention by the police, proof of false imprisonment
provides a basis to obtain a writ of habeas corpus. Under common law, false imprisonment is both
a felony and a tort.
(OR)
b. Explain Defamation and its kinds along with defences. (10 Marks)
Defamation is 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 an interference with the property. A man's reputation is
his property and if possible, more valuable than other property.

The term ‘Defamation’ means injury to the reputation or character of a person. According to
Black’s Law Dictionary, Defamation is that which tends to injure reputation, to diminish the
esteem, respect, goodwill or confidence in which the plaintiff is held or to exercise adverse,
derogatory or unpleasant feelings or opinions against him. Statements which exposes person to
contempt, hatred, ridicule, or injure a person or in his trade, business, profession, calling or office
or to cause him to be shunned or avoided in society.
 64

As per Tomlin’s Law Dictionary, Defamation is a false publication calculated to bring one in
disrepute. Defamation is when a person specks scandalous words of others, whereby they are
injured in their reputation.

According to Bhagawad Gita, for a man of honor, defamation is worse than death. Example, if X
through a statement, oral or in writing injures the name and fame of Y is said to have been defamed.
If an injury is caused to one’s reputation or character, he can file a suit for damages.
In Tolby vs. J.S. Fry & Sons Ltd., [(1981) AC 333 (HL)], the plaintiff was an amateur golf
champion. The defendants were manufacturers of chocolates. The defendants in the advertisement
of their product used a caricature of the plaintiff without any contract or his consent. The plaintiff
sued for damages alleging that by the advertisement he had suffered in his credit and reputation.
He alleged that he never ate the chocolates of the defendants even. It was held that the innuendo
that the plaintiff had prostituted his status for advertising was supposed by the fact and the
advertisement was, therefore, defamatory for a man in his position.
Kinds of Defamation:
1. Libel
2. Slander
A Libel is a publication of a false and defamatory statement tending to injure the reputation of
another person without lawful justification or excuse. The statement must be expressed in some
permanent form, like writing, printing, pictures, statue, waxwork effigy, etc.
A Slander is a false and defamatory statement by spoken words or gestures tending to injure the
reputation of another.
Difference between Libel and Slander
1. A libel is defamation in some permanent form like a written or printed defamation. A
slander is defamation in a transient form like spoken words and gestures.
2. At common law a libel is a criminal offence as well as a civil wrong, but a slander is a civil
wrong only; though the words that happen to come within the criminal law as being
blasphemous, seditious or obscene. Or as being a solicitation to commit a crime or as being
a contempt of court. Under the Indian Law, both libel and slander are criminal offences.
3. A Libel is of itself an infringement of a right and no actual damage need be proved in order
to sustain an action. At common law, a slander is actionable only when special damage
 65

can be proved to have been its natural consequence, or when it conveys certain imputation.
An action may be maintained for defamatory words reduced into writing, which would not
have been actionable for defamatory words reduced into writing, which would not have
been actionable if merely spoken. But there are exceptions under the English Law, where
slander is actionable without proof of special damage. These exceptions are when the
slander contains imputation of :
a. A criminal offence punishable with imprisonment;
b. A contagious or infectious disease likely to prevent other persons from associating
with the plaintiff;
c. Unchastity or adultery of any woman; and
d. Unfitness held or carried on by the plaintiff at the time when the slander was
published.

The Defences to an action for defamation are:

1) Justification or Truth- In a civil action for defamation, truth of the defamatory matter is complete
defence. Under criminal law, merely proving that the statement was true is no defence. First
exception to sec 499 requires that besides being true, the imputation must be shown to have been
made for public good. Under the civil law merely proving that the statement was true is a good
defence.

The defence is available even though the publication is made maliciously. If the defendant is not
able to prove the truth of the facts, the defence cannot be availed. In Radheshyam Tiwari vs.
Eknath, the defendant who was editor, printer and publisher of a newspaper published a series of
articles against the plaintiff, a Block Development Officer alleging that the plaintiff had issued
false certificates, accepted bribe and adopted corrupt and illegal means in various matters. In an
action for defamation, the defendant could not prove that the facts published by him were true and
therefore he was held liable.

2) Fair Comment- Making fair comment on matters of public interest is a defence to an action for
defamation. For this defence to be available, the following essentials are required:
It must be a comment that is an expression of opinion rather than assertion of fact;
 66

• The comment must be fair; and

• The matter commented upon must be of public interest.
i) Comment - Means an expression of opinion on certain facts. It should be distinguished from
making a statement a fact. A fair comment is a defence by itself whereas if it is a statement of fact,
that can be excused only if justification or privilege is proved regarding that. Whether a statement
is a fact or a comment on certain facts depends on the language used or the context in which that
is stated.
ii) 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 in a newspaper there is publication of
a statement of facts making serious allegations of dishonesty and corruption against the plaintiff,
and the defendant is unable to prove the truth of such facts, the plea of a fair comment, which is
based upon those untrue facts will also fail.

iii) The matter commented upon must be of public interest -Administration of government
departments, public companies, courts, conduct of public men like ministers or officers of State,
public institutions and local authorities, pictures, textbooks, etcetera are considered to be matter of
public interest.

3)Privileges -There are certain occasions when the law recognises 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 occasion is not actionable. Privilege is of two kinds Absolute
and Qualified.
a. 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. In such cases
the public interest demands that an individual’s right to reputation should give way to the
freedom of speech. Absolute privilege is recognized in the following cases-
i) Parliamentary proceedings - Article 105(2) Of our constitution provides that statements made
by a member of either House of Parliament in Parliament and the publication by or under the
Authority of either House of Parliament of any report, paper, votes or proceeding, cannot be
questioned in a court of law. A similar privilege exists in respect of State Legislatures according
to article 194(2)
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ii) 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 said maliciously without any
justification or excuse and from personal ill will and anger against the person defamed. Such a
privilege also extends to proceedings of the tribunals possessing similar attributes. Protection to
the judicial officers In India has also been granted by the Judicial Officers Protection Act 1850.

iii) Military and Naval Proceedings: Proceedings of naval and military tribunals are absolutely
privileged. Statements made before a naval and military court of inquiry military man are
protected.

iv) State Proceedings: For reason of public policy, absolute protection is given to every
communication relating to state matters made by one minister to another (the Vienna Convention
on diplomatic relations required embassy documents to be treated as inviolable and are absolute
privileged, to maintain secrecy and confidentiality)
b. Qualified Privilege- In certain cases the defence of qualified privilege is also available.
Unlike the difference of absolute privilege, in this case it is necessary that the statement
must have been made without malice. For this defence to be available it is also necessary
that there must be location for making the statement. To avail this defence the defendant
has to prove the following-
1. The statement was made on a privileged occasion that is it was in discharge of duty or
protection of interest or it is a fair report of parliamentary, judicial or other public
proceedings. The occasion when there is a qualified privilege to make defamatory
statement without malice are either when there is existence of a legal, social or moral duty
to make such a statement, or existence of some interest for the protection of which the
statement is made. Sec 499 IPC also contains such privilege in its ninth exception.
Example- A, a shopkeeper, says to B, who manages his business, “Sell nothing to Z unless he pays
you ready money, for I have no opinion of his honesty.” A is within the exception, if he has made
his comment on Z in good faith for the protection of his own interests. A former employee has a
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moral duty to state a servant character a person who is going to employ the servant. The person
receiving the information has also interest in the information. The occasion here is privileged.
2. The statement should be made without malice – In the matters of qualified privilege,
exemption from liability for making defamatory statements is granted if the statement was
made without malice. The presence of malice destroys this defence. The malice in relation
to qualified privilege means an evil motive.

Remedies for Defamation:

• For Defamation a suit for damages may be brought, defamatory statements may be
restrained by injunctions.
• (who can sue) The publication of Defamation can seldom give a right to action to any one
but the person defamed. Example a brother cannot sue for slander of his sister, nor a father
for defaming his daughter, neither a husband for imputing unchastity to his wife.
• Joint action cannot be brought jointly against defendants in Slander, but in libel, each
person is liable for entire publication and all maybe sued together.

2. a. Write a note on Assault. (6 Marks)

An assault is an unlawful laying of hands on another person or an attempt or offer to do a corporal
(physical) hurt to another, by using some force without any lawful justification along with an
apparent present ability and intention to do the act. The intention as well as the act makes an
assault. Actual contact is not necessary in an assault, though it is necessary in battery. Showing a
fist or threatening with a stick, when near enough to be able to hit, is an assault. If a sword is shown
at such a distance, that it would be impossible to hurt any person, it would not be an assault.

Assault according to Dr. Winfiled, is an act of the defendant which causes in the minds of the
plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. Thus in
assault there should be a reasonable apprehension in the mind of the plaintiff that defendant is
about to use force or attempting to use force against him, whether any harmed is caused or not. It
is an attempt or offer to apply force to another’s person. Anyone who intentionally brings any
material object into contact with another person is said to have applied force to the person of that
other. For example, to throw a stone or water upon a person or to strike a person with a stick.
 69

In Scott vs Shephard (1773)2 WB 1892, the defendant threw a squib (a small firework that burns
with a hissing sound before exploding) on stall at a fair, the keeper of which in self defence threw
it off again. It then alighted on another stall, was again thrown away and finally exploded on the
face of the plaintiff and blinded him. The Court held that the defendant was liable in trespass as
the intervening acts of a stall holder were involuntary and did not break the chain of causation
between the defendant’s act and the plaintiff’s injury. It was observed that a person is said to have
committed trespass to the person without latter’s consent, and such trespass is actionable at the
suit interference is direct even if the act is involuntary and is brought about by the danger caused
by the defendant.

Illustrations: A begins to un-lose the muzzle of a ferocious dog, intending or knowing it to be

likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has
committed an assault upon Z.

A takes up a stick saying Z, “I will give you a beating”, here though the words used by A could in
no case amount to an assault, and though the mere gesture, unaccompanied by any other
circumstances, might not amount to an assault, the gesture explained by the words may amount to
an assault.

Essentials of assault

In an action for assault the plaintiff has to prove the following things:

1. Intention to use force- the first thing which the plaintiff has to show in an action for assault
is that there was some gesture or preparation which constituted a force. Mere words are not
enough. There must in all cases be the means of carrying the threat into effect. If A while
lying on his bed says to B “I will beat you” it will not be an assault as there is neither
gesture nor preparation.

2. Capacity to use force- in order to constitute an assault it is also necessary that the person
so assaulted must, on reasonable grounds believe that the person assaulting has the ability
to apply the force so attempted by him. It is clear to the plaintiff that the defendant has no
present ability to carry out the threat because he is too far away to bring the threat into
action, there is no assault.
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Example: A man makes a gesture to throw stone at a person who is sitting at a height, where by
throwing it is humanely impossible to make the stone reach, the latter has no reasonable ground to
believe that he will be hit. In this case, though a man makes an attempt, there is no assault as the
second man has no reason to believe that the first man can hit him.

Example: If a weak old man threatens a stronger man to kill him, it is no assault.

In Blake vs. Bernard, the Defendant pointed a loaded pistol at the plaintiff’s head, saying that he
would blow his brain out if the plaintiff were not quite. The defendant was held liable for assault.

Example: Stephens’s vs. Myers, a turbulent parish council meeting, the meeting voted to have
the defendant ejected. He refused, and advanced towards the chairman waving his clenched fist
and saying he would rather throw him from the chair. He was stopped before getting within striking
distance, but the chairman sued for assault. The claim succeeded. Tindal CJ said: ‘It is not every
threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases,
be the means of carrying the threat into effect.’
(OR)
b. Malicious Prosecution and its conditions. (6 Marks)
A malicious prosecution is defined as “a judicial proceeding instituted by one person against
another, from wrongful or improper motive and without probable cause to sustain it”. The Apex
Court in West Bengal State Electricity Board v. Dilip Kumar Ray, explained that there are two
essential elements for constituting a malicious prosecution-
• That no probable cause existed for instituting the prosecution or suit complained of; and
• That such prosecution or suit terminated in some way favourably to the defendant therein.
In this case, the respondent an employee of the Board was suspended, and disciplinary proceedings
were instituted against him. A FIR was lodged against him alleging misconduct and Commission
of various offences. Since no charge sheet was issued for four months the respondent had
approached the High Court for quashing (reject as invalid) the disciplinary proceedings. However,
on the intervention of the Court, charge sheet was issued, and an inquiry was held. But the Board
resolved not to continue the case further and the order of suspension of the respondent were
quashed (Cancelled). Subsequent to it the respondent filed a case in the Court of Assistant District
Judge, claiming damages for the institution of disciplinary proceedings by the Board and also the
 71

newspaper which published the news. The trial court held that the plaintiff was entitled to damages
for harassment and for loss of his reputation.

The term Malice in common parlance means “ill will against a person”. In legal sense, it means
“a wrongful act done intentionally without any just cause or excuse”. The term ‘Prosecution’
means “a proceeding in a court of law charging a person with a crime.”. “Malicious Prosecution”
means “a prosecution on some charge of crime, which is willful, wanton or reckless or against the
prosecutor’s sense of duty and right”. Example – A makes a false complaint against B that B had
committed theft with a view to compel B to deliver some property to him (A). Here, A is liable
for malicious prosecution.

A Malicious prosecution may be defined as a tort which consists of instituting certain kinds of
legal proceedings against another person maliciously and without reasonable and probable cause.
A malicious prosecution is defined as “A judicial proceedings instituted by one person against
another, from wrongful or improper motive and without probable cause to sustain it.

Malicious prosecution consists in instituting unsuccessful criminal proceedings maliciously and

without reasonable and probable cause. When such prosecution causes actual damage to the party
prosecuted, it is a tort for which he can bring an action. The plaintiff has to prove the following in
a suit for damages for malicious prosecution –
1) That he was prosecuted by the defendant
2) The prosecution was instituted without any reasonable and probable cause
3) The defendant acted maliciously and not with the intention of carrying the law into effect.
4) The proceedings complained of terminated in favour of the present plaintiff (he was acquitted)
5) The plaintiff suffered damage as a result of the prosecution.

1. Prosecution by Defendant: The first condition for Malicious Prosecution is that plaintiff was
prosecuted by the defendant. The plaintiff has to prove that the defendant instituted a false
criminal proceeding against him before a judicial, quasi judicial authority or tribunal.
In Bolandanda Premayya vs. Ayaradara (AIR 1966 Mys 13), the defendant made a complaint with
the police that plaintiff has committed a theft in his house. Police recorded the statements. The police
 72

officer then made a search in plaintiff’s house. But the police found the complaint to be false. The
plaintiff filed a suit for damages against the defendant in the civil court for malicious prosecution.
The court rejected this plea (a formal statement by defendant stating guilt or innocence in response
to a charge) on the ground that mere filing of complaint with the police does not amount to
prosecution as it starts only when some judicial authority is set in motion as a consequences of such
complaint.

2. Without reasonable and probable cause: The plaintiff has to prove that the defendant
prosecuted him without reasonable and probable cause. No action will lie for malicious
prosecution unless it is proved that the criminal proceedings were initiated without reasonable and
probable cause. The term ‘reasonable and probable cause’ can be defined as an honest belief in
the guilt of the accused based upon a full conviction founded upon reasonable grounds of existence
of state of circumstances, which assume to be true, would reasonably lead any ordinary, prudent
and cautious man placed in the position of the accused, to the conclusion that the person charged
was probably guilty of the crime imputed.
If the plaintiff proves either that the defendant, did not believe in his guilt or that the belief was
not reasonable, it will be proved that the defendant prosecuted him without reasonable and
probable cause.

In Wyatt vs. White (1860) 5 H&N 371, the defendant, a miller noticed on the plaintiff’s wharf
(Harbour/ where ship loads and unloads) a number of sacks (bags/packs), some new which bore
his mark and others old from which the mark had been cut off. Believing the sacks to be his own,
the defendant charged the plaintiff for theft before a Magistrate. The plaintiff was acquitted and
then he sued the defendant for Malicious Prosecution. It was held that since some of the sacks
observed by defendant were new, the defendant had reasonable and probable cause and was
therefore not liable.

3. Malicious Intention: The plaintiff has to prove that there was a malicious intention on
the part of the defendant in instituting criminal proceedings against him. In a suit for damages
for malicious prosecution it is necessary for the plaintiff to prove that the defendant acted without
reasonable and probable cause, and that the defendant was actuated by malice. But here Malice
 73

means improper, indirect and wrongful motive. One can prosecute a person only with a motive
to maintain a public justice or to vindicate (reasonable) right. Prosecution of a man with any
other motive is malicious.
In Churchill vs. Siggers (1854)3 E&B 929, the defendant who had obtained a decree for a debt
against the plaintiff and although a part of the debt had been paid off, maliciously took out
execution for the full amount of the decree against the plaintiff and got him arrested, the defendant
was held liable for Malicious Prosecution.

In Bhogilal vs. Sarojbahen (1979), Here A agreed to purchase B’s house for Rs.15000/- and paid
an earnest money Rs.2000/- later it was discovered that the house had already been mortgaged. A
filed a criminal case against B for cheating under Sec 420 of IPC and B was discharged. In an
action by B against A for Malicious Prosecution, it was held that A was not liable as he did not act
Maliciously.

4. Acquittal or Termination of Criminal Proceedings: The plaintiff has to prove that the
criminal proceedings against him were terminated and was acquitted. An action for Malicious
Prosecution cannot be maintained if the plaintiff is convicted.

5. Damages suffered by plaintiff: The plaintiff has to prove that he has suffered loss or
damage or injury as consequences of the prosecution complained of (by the defendant). The
Damage may be with reference to the plaintiff’s person or property or reputation.
While awarding damages the Court will have to consider the following:
• While awarding damages the wounded feeling and injured pride of the plaintiff are taken
into consideration. A false charge that a person has committed cheating or is guilty of
criminal breach of trust is bound to injure his reputation, more so in a case of a person who
is known to the business world.
• The second type of damages arises due to the injury to the person of the plaintiff. Injury
to the person may result because of arrest i.e., he is deprived of his liberty and a person
may have been actually arrested but it is sufficient even if the imprisonment is the
immediate and necessary consequence of the prosecution.
 74

• Thirdly damages arise due to injury to property. A person who is maliciously prosecuted
has necessarily to spend some money to defend himself.

Unit 5
1. a. Explain the Salient Features of The Motor Vehicles Act (10 Marks)
The Motor Vehicles Act, 1988
Salient Features:
The Motor Vehicles Act, 1988 is a comprehensive enactment in respect to various matters relating
to traffic safety on the roads and minimization of road accidents. This Act makes the insurance of
motor vehicles compulsory. The owner of every motor vehicle is bound to insure his vehicle
against third party risk.

The policy must be against any liability incurred by the insured in respect of death or bodily injury
to any person or damage to any property of a third party. According to this section the policy does
not require covering the liability of death or injuries arising to the employees in the course of
employment except to the extent of liability under Workmen Compensation Act (Sec. 147).

The insurer can be made a party to the proceedings of the Motor Accident Claims Tribunal (Sec.
149).
When a cover note issued by an insurer is not followed by a policy within the prescribed time, the
insurer is bound to notify the fact to the concerned Registering Authority. (Sec. 147)

A claimant is entitled to compensation of Rs.50,000 in cases of death or Rs.25,000 in the cases of

injury without burden of proof of fault on the part of the vehicle owner. (Sec.140- No fault
liability).
A claimant may also seek compensation on the basis of the structured formula prescribed in the
Act. (Sec. 163 A)
A claimant may at his option, approach the Tribunal having jurisdiction over the area
i) in which the accident occurred,
ii) where he resides,
 75

iii) carries on business or

iv) where the defendant resides. (Sec. 166)
For victims of hit and run cases i.e. where the identity of the vehicle cannot be ascertained the
insurers are liable to pay the stipulated compensation. (Sec. 161)
The Tribunal may direct payment of interest on the award at the rates and from the date specified
by it. (Sec. 171)
The Tribunal shall arrange to deliver copies of the award to the parties concerned within a period
of fifteen days from the date of award. (Sec. 168)
The person liable to satisfy the award shall do so within thirty days of announcement of the award.
(Sec. 168)
Chapter 11 (Section 145 to 164) provides for compulsory third-party insurance, which is required
to be taken by every vehicle owner. It has been specified in Section 146(1) that no person shall use
or allow using a motor vehicle in public place unless there is in force a policy of insurance
complying with the requirement of this chapter.[3] Contravention of the provisions of section 146
is an offence and is punishable with imprisonment which may extend to three months or with fine
which may extend to one thousand rupees or with both (section 196).Section 147 provides for the
requirement of policy and limit of liability. Every vehicle owner is required to take a policy
covering against any liability which may be incurred by him in respect of death or bodily injury
including owner of goods or his authorized representative carried in the vehicle or damage to the
property of third party and also death or bodily injury to any passenger of a public service vehicle.
According to this section the policy does not require covering the liability of death or injuries
arising to the employees in the course of employment except to the extent of liability under
Workmen Compensation Act. Under Section 149 the insurers have been statutorily liable to satisfy
the judgment and award against the person insured in respect of third-party risk.

Insurance Companies have been allowed no other defence except the following: –
(1) Use of vehicle for hire and reward does not permit to ply such vehicle.
(2) For organizing racing and speed testing;
(3) Use of transport vehicle not allowed by permit.
(4) Driver not holding valid driving license or have been disqualified for holding such license.
(5) Policy taken is void as the same is obtained by non-disclosure of material fact.
 76

Section152: Settlement between insurers and insured persons.

(1) No settlement made by an insurer in respect of any claim which might be made by a third party
in respect of any liability of the nature referred to in clause (b) of sub-section (1) of section 147
shall be valid unless such third party is a party to the settlement.
(2) Where a person who is insured under a policy issued for the purposes of this Chapter has
become insolvent, or where, if such insured person is a company, a winding up order has been
made or a resolution for a voluntary winding up has been passed with respect to the company, no
agreement made between the insurer and the insured person after the liability has been incurred to
a third party and after the commencement of the insolvency or winding up, as the case may be, nor
any waiver, assignment or other disposition made by or payment made to the insured person after
the commencement aforesaid shall be effective to defeat the rights transferred to the third party
under this Chapter, but those rights shall be the same as if no such agreement, waiver, assignment
or disposition or payment has been made.

Legal defence available to the Insurance Companies towards third party:

The Insurance Company cannot avoid the liability except on the grounds and not any other ground,
which have been provided in Section 149(2). In recent time, Supreme Court while dealing with
the provisions of Motor Vehicle Act has held that even if the defence has been pleaded and proved
by the Insurance Company, they are not absolve from liability to make payment to the third party
but can receive such amount from the owner insured. The courts one after one have held that the
burden of proving availability of defence is on Insurance Company and Insurance Company has
not only to lead evidence as to breach of condition of policy or violation of provisions of Section
149(2) but has to prove also that such act happens with the connivance or knowledge of the owner.
If knowledge or connivance has not been proved, the Insurance Company shall remain liable even
if defence is available.

Driving License:
Earlier not holding a valid driving license was a good defence to the Insurance Company to avoid
liability. It was been held by the Supreme Court that the Insurance Company is not liable for claim
if driver is not holding effective & valid driving licence. It has also been held that the learner’s
 77

licence absolves the insurance Company from liability, but later Supreme Court in order to give
purposeful meaning to the Act have made this defence very difficult. In Sohan Lal Passi’s v. P.
Sesh Reddy it has been held for the first time by the Supreme Court that the breach of condition
should be with the knowledge of the owner. If owner’s knowledge with reference to fake driving
licence held by driver is not proved by the Insurance Company, such defence, which was otherwise
available, can not absolve insurer from the liability. Recently in a dynamic judgment in case of
Swaran Singh, the Supreme Court has almost taken away the said right by holding;
“(i) Proving breach of condition or not holding driving licence or holding fake licence or carrying
gratuitous passenger would not absolve the Insurance Company until it is proved that the said
breach was with the knowledge of owner.
(ii) Learner’s licence is a licence and will not absolve Insurance Company from liability.
(iii) The breach of the conditions of the policy even within the scope of Section 149(2) should be
material one which must have been effect cause of accident and thereby absolving requirement of
driving licence to those accidents with standing vehicle, fire or murder during the course of use of
vehicle.”
This judgment has created a landmark history and is a message to the Government to remove such
defence from the legislation as the victim has to be given compensation.

However, if there is a breach in the condition of policy, the insurer can recover the money from
the insured. In a recent judgment of the Supreme Court, it was held that the insurer and the insured
are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if
there is violation of any policy condition. But the insurer who is made statutorily liable to pay
compensation to third parties on account of the certificate of insurance issued shall be entitled to
recover from the insured the amount paid to the third parties, if there was any breach of policy
conditions on account of the vehicle being driven without a valid driving licence.
(OR)
b. Write the Salient features of Consumer Protection Act. (10 Marks)
Consumer Protection Act has been implemented (1986) or we can say brought into existence to
protect the rights of a consumer. It protects the consumer from exploitation that is practised in
business, to make profits which in turn harm the wellbeing of the consumer and society.
 78

This Act helps to educate the consumer on the rights and responsibilities of being a consumer and
how to seek help or justice when faced with exploitation as a consumer. It teaches the consumer
to make right choices and know what is right and what is wrong.

Who is a consumer according to the Consumer Protection Act, 1986? A consumer is one that buys
good for consumption and not for the resale or commercial purpose. The consumer also hires
service for consideration.
Practices to be followed by Business under Consumer Protection Act
• If any defect is found the seller should remove the mentioned defect from the whole batch or the
goods affected. For example, there have been cases where a car manufacturing unit found a defect
in parts of the vehicle, and usually they remove the defect from every unit, or they call of the unit.
• They should replace the defective product with a non- defective product and that product should
be of similar configuration or should be the same as the product purchased.

Redressal: Three Tier System under Consumer Act

District Forum: These forums are set by the district of the state concerned in each district wherein
it consists of President and two members of which one should be a woman and is appointed by the
State Government. In this, the complaining party should not make a complaint more than 20 Lacs
and once the complaint is filed the goods are sent for testing and if they found defective the accused
party should compensate and if the party is dissatisfied can make an appeal with state commission
within 30 days

State Commission: This is set up by each state, it consists of President and two members.
Complains should be at least 20 lacs and exceed not more than 1 crore. The goods are sent for
testing and if found defective are asked for replacement or compensation. If not satisfied can make
an appeal within 30 days in front of the National Commission.

National Commission: Consist of President and 4 members. The complaint must exceed an
amount of 1 crore. The goods are sent for testing and if found defective are asked for replacement
or compensation.
Consumer Protection Act- 2019
 79

A new recently introduce legislation with regard to consumers has replaced the three-decade old
Consumer Protection Act 1986. The new act proposes a number of measures and tightens the
existing rules to further safeguard consumer rights. Introduction of central regulator, strict
penalties for misleading advertisements and guidelines for e-commerce and electronic service are
some of the key highlights. This act received the assent of the President on 9th August 2019.

The changes brought about by the new Act can be compared as follows-
1) Regulator- There is no separate regulator under the Consumer Protection Act 1986, under the
act of 2019 a central consumer protection authority to the formed.
2) Consumer Court- a complaint could be filed in a consumer court where the seller i.e. defendant’s
office is located. Under the Consumer Protection Act 2019 a complaint can be filed in cancel quote
where the complaint resides or works.
3) Product liability -There is no provision under the act of 1986 and a consumer could approach a
civil court but not a consumer court. Under the New Act a consumer can seek compensation for
harm caused by a product or service.
4) Pecuniary Jurisdiction- Under the Consumer protection Act 1986 the jurisdiction of the district
forum was up to 20 lakhs, the State Commission from 20 lakhs to 1 crore and the National
Commission above 1 crore, under the new act jurisdiction of the district forum. Under the new Act
of 2019 the pecuniary jurisdiction of the district forum has gone up to 1 crore, the State
Commission from 1 crore to 10 crores and the National Commission above 10 crores.
5) E- Commerce- There is no provision for e-commerce under the but, all rules of direct selling
extended to e-commerce also under the new Act of 2019.
6) Mediation Cells- Under the old Act there is no legal provision for mediation but, the new Act
provides for settlement through mediation.

2. Write Short note on

a. Unfair Trade Practice (6 Marks)

An unfair trade practice means a trade practice, which, for the purpose of promoting any sale, use
or supply of any goods or services, adopts unfair method, or unfair or deceptive practice.

Unfair practices may be categorized as under:

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i. False Representation

The practice of making any oral or written statement or representation which:

• Falsely suggests that the goods are of a particular standard quality, quantity, grade,
composition, style or model;

• Falsely suggests that the services are of a particular standard, quantity or grade;

• Falsely suggests any re-built, second-hand renovated, reconditioned or old goods as new
goods;

• Represents that the goods or services have sponsorship, approval, performance, characteristics,
accessories, uses or benefits which they do not have;

• Represents that the seller or the supplier has a sponsorship or approval or affiliation which he
does not have;

• Makes a false or misleading representation concerning the need for, or the usefulness of, any
goods or services;

• Gives any warranty or guarantee of the performance, efficacy or length of life of the goods,
that is not based on an adequate or proper test;

• Makes to the public a representation in the form that purports to be-

a. a warranty or guarantee of the goods or services,

b. a promise to replace, maintain or repair the goods until it has achieved a specified result,

If such representation is materially misleading or there is no reasonable prospect that such

warranty, guarantee or promise will be fulfilled

• Materially misleads about the prices at which such goods or services are available in the
market; or

• Gives false or misleading facts disparaging the goods, services or trade of another person.

ii. False Offer of Bargain Price-

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Where an advertisement is published in a newspaper or otherwise, whereby goods or services are

offered at a bargain price when in fact there is no intention that the same may be offered at that
price, for a reasonable period or reasonable quantity, it shall amount to an unfair trade practice.

The ‘bargain price’, for this purpose means-

a. the price stated in the advertisement in such manner as suggests that it is lesser than the
ordinary price, or
b. the price which any person coming across the advertisement would believe to be better
than the price at which such goods are ordinarily sold.
iii. Free Gifts Offer and Prize Schemes

The unfair trade practices under this category are:

• Offering any gifts, prizes or other items along with the goods when the real intention is
different, or

• Creating impression that something is being offered free along with the goods, when in fact
the price is wholly or partly covered by the price of the article sold, or

• Offering some prizes to the buyers by the conduct of any contest, lottery or game of chance or
skill, with real intention to promote sales or business.

iv. Non-Compliance of Prescribed Standards

Any sale or supply of goods, for use by consumers, knowing or having reason to believe that the
goods do not comply with the standards prescribed by some competent authority, in relation to
their performance, composition, contents, design, construction, finishing or packing, as are
necessary to prevent or reduce the risk of injury to the person using such goods, shall amount to
an unfair trade practice.

v. Hoarding, Destruction, Etc.

Any practice that permits the hoarding or destruction of goods, or refusal to sell the goods or
provide any services, with an intention to raise the cost of those or other similar goods or services,
shall be an unfair trade practice.
(OR)
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b. When does a medical service fall under the consumer protection act? (6 Marks)

A medical service falls under the purview the Consumer Protection Act in the following cases:

1. Service rendered to a patient by a medical practitioner (except where the doctor renders service
free of charge to every patient or under a contract of personal service), by way of consultation,
diagnosis and treatment, both medicinal and surgical.

2. Service rendered at a non-Government hospital/Nursing home where charges are required to be

paid by the persons availing such services.

3. Service rendered at a non-Government hospital/Nursing home where charges are required to be

paid by persons who are in a position to pay and persons who cannot afford to pay are rendered
service free of charge, irrespective of the fact that the service is rendered free of charge to persons
who are not in a position to pay for such services. Free service would also be "service" and the
recipient a "consumer" under the Act.

4. Service rendered at a Government hospital/health centre/dispensary where services are rendered

on payment of charges and also rendered free of charge to other persons availing such services
irrespective of the fact that the service is rendered free of charge to persons who do not pay for
such service. Free service would also be "service" and the recipient a "consumer" under the Act.

5. Service rendered by a medical practitioner or hospital/nursing home if the person availing the
service has taken an insurance policy for medical care where under the charges for consultation,
diagnosis and medical treatment are borne by the insurance company.

6. Where, as a part of the conditions of service, the employer bears the expenses of medical
treatment of an employee and his family members dependent on him, the service rendered to such
an employee and his family members by a medical practitioner or a hospital/nursing home would
not be free of charge and would constitute service.
When Does A Medical Service Not Fall Under the Under the Act
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A medical service does not fall under the purview of the Consumer Protection Act in the following
cases:
1. Where service is rendered free of charge by a medical practitioner attached to a hospital/Nursing
home or a medical officer employed in a hospital/Nursing home where such services are rendered
free of charge to everybody. The payment of a token amount for registration purpose only at the
hospital/nursing home would not alter the position.

2. Where a service rendered at a non-Government hospital/Nursing home where no charge

whatsoever is made from any person availing the service and all patients (rich and poor) are given
free service. The payment of a token amount for registration purpose only at the hospital/Nursing
home would not alter the position.

Remedies Available In Case Of Medical Negligence

A consumer has the option to approach the Consumer Forums to seek speedy Redressal of his
grievances or file a criminal complaint. Checklist to File a Case:
1. Retain prescription, bills and references.
2. Maintain medical history records.
3. Consent given by the patient or close relative can be used as evidence in the court.
Important Cases

Wrong Diagnosis
The patient was initially diagnosed as having tuberculosis and treatment was given. However later
on the basis of other symptoms it was found that he had Jaundice. Allegation that the hospital and
attending doctors were negligent in their treatment and diagnosis. Complaint was held to be
maintainable. (1993 Consumer Claims Journal 198)
Negligence in conducting Operation
• Doctors concerned did not conduct necessary tests at pre-operative stage and conducted
surgery without a neurosurgeon resulting in spinal cord injury. Opposite parties could not
explain why removal of benign tumour in chest wall resulted in spinal cord injury. Opposite
party institute directed to pay Rs. 14,00,000/-as compensation. (1999 CCJ 1099) National
Commission.
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• Complainant's left hand became disabled during treatment. Damage to ulnar nerve was caused
during treatment for amoebic liver abscess. Complaint held to be maintainable. Hospital was
directed to pay Rs. 1,25,000/- as compensation. (1999 CCJ 940) Chandigarh.
• Death of a patient at the time of operation. Opposite parties had anticipated likely
complications that might arise in a major surgery of an obese patient with a rare blood group.
Opposite parties directed to pay Rs. 2,55,355/- as compensation. (1999 CCJ 391) National
Commission.
• Foreign body left inside after operation of leg which was removed by another doctor. Opposite
parties directed to pay Rs. 20,000/- as compensation. (1999 CCJ 99) National Commission.

Unqualified Nurse
• Wrong administration of injection caused paralysis of leg of a child and the nurse who
administered the injection was not qualified. Opposite parties directed to pay Rs. 1,05,00/- as
compensation and treatment expenses. (1999 CCJ 960)
• All-in-all the 2019 Act is a positive step towards reformation and development of consumer
laws, in the light of dynamically changing socio-economic developments. One has seen many
other similar steps having recently been taken. But the real test for the 2019 Act is in its
implementation and some amount of time needs to be given for it to actualize the relief for the
consumers.