NATURE AND DEFINITION OF TORT
Tort law in India is uncodified .To deal with the malicious behaviour of the people tort existed in Hindu and Muslim law but it can be said that tort was formally introduced by the Crown in India. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society.
Justice Bhagwati in M.C Mehta v. Union of India observed that:
“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
Tort means a conduct which is crooked or twisted i.e. not straight. It is derived from a latin term ‘Tortum’ which means ‘twisted’. The important definitions of Tort as given by various scholars are as follows:
“It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation” – SALMOND
According to Salmond’s definition, it is the law of torts i.e. the plaintiff should prove that the wrong falls under the already existing torts.
“ Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages” – WINFIELD
As per Winfield, it is the law of tort i.e. all the unjustifiable wrongdoings will fall under the category of tort.
The above definitions provide different elements which constitute a tort and distinguish it from other wrongs. However, every civil wrong is not a Tort. Therefore, a precise definition of Tort is not possible.
It is observed that tort is a civil wrong as the plaintiff institutes civil proceedings against the defendant and the plaintiff is compensated by the defendant for the injury. There is breach of trust or contract by the defendant which has caused damage to the plaintiff. Also tort is redressible by an action for unliquidated damages. Damages is the most important remedy for a tort. Generally, it is in the form of money compensation which satisfies the injured party. The damages in tort are unliquidated as they are left to the discretion of court and are not predetermined as in the case of liquidated damages.
ESSENTIALS OF TORT-
Act or Omission- for a person to be made liable for tort, he must have done a wrongful act or has omitted to do something which he was supposed to do. The act must be legally recognised i.e. for a mere social or moral wrong , there is no liability under tort law. Eg. If somebody fails to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability can arise for that unless it can be proved that there was a legal duty to help the starving man or save the drowning child.
Legal Damage- The plaintiff must prove that there was a legal duty on the part of defendant and he has violated that duty. Since what is actionable is the violation of a legal right, it therefore follows that when there is no violation of a legal right, no action can lie in a court of law even though the defendant’s act has caused some loss or harm or damage to plaintiff.
Tort and Crime
The wrongs which are comparatively less serious are considered to be private wrongs and have been labelled as civil wrongs, whereas mores serious wrongs have been considered to be public wrongs and are known as crimes. There are various laws which are found both in crime and tort like assault , defamation etc. The rules of tort and crime are different,eg. In case of tortious liability for the wrong of defamation, truth is in itself a defence whereas in an action for the offence of defamation, the defence of truth can be taken if the publication was made for public good.
Since tort is considered to be a private wrong , the injured party has to file suit as plaintiff. In case of crime, the immediate victim is an individual, the criminal wrong is considered to be a public wrong, victim is an individual, the wrong is against the public at large i.e. the whole society.
In case of tort, the ends of justice are met by awarding damages whereas in crime the wrongdoer is punished.
The idea of compensation under tort is to make good to the loss suffered by plaintiff whereas in case of crime the punishment is awarded to deter the wrongdoer from committing further offences.
2. Tort and Breach of Contract-
The agreement, the violation of which is known as a breach of contract is made by the parties with their free consent. A tort on the other hand, results from breach of duties which are undertaken by themselves but are imposed by law.
In a contract, the duty is based on the privity of contract and each party owes duty only to the other contracting party whereas the duties imposed under tort are
not towards specific individuals but towards the society at large.
In case of breach of contract, the damages may be liquidated or unliquidated whereas in the case of tort the damages are always unliquidated.
3. Tort and Breach of trust distinguished-
In case of breach of trust by trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. The amount of damages being ascertainable before the beneficiary brings the action , the damages , in case of a breach of trust , are liquidated. On the other hand, damages in tort are unliquidated. The whole law of trust as a division of the law of property is fairly detachable from other parts of tort law.
Tort and Quasi –Contract-
Law of quasi-contract gives right only with respect to money and generally it is a liquidated sum of money. Law of torts, apart from granting right to damages also grant remedies and it is always liquidated sum of money.
In quasi- contract, the duty is towards particular individual whereas in case of tort, the dutyt is towards persons generally.
In quasi-contract, the wrongdoer has to be sued to recover the value of benefit obtained by wrongdoer whereas in tort the injured party has choice to sue.
INJURIA SINE DAMNO
It means violation of a legal right without causing any harm, loss or damage to the plaintiff. In such cases, there is no need to prove that plaintiff has suffered any harm due to wrongful act i.e. they are per se actionable by law. It is only the legal right which is actionable.
The court in Ashby v. White explained the above maxim. The plaintiff succeeded in his action, even though the defendant’s act did not cause any damage. The plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won election in spite of that candidate for whom he wanted to vote won the election in spite of that. It was held that the defendant was liable.
In case of injuria sine damno, the loss suffered by the plaintiff is not relevant for the purpose of a cause of action. It may be relevant to calculate the damages only. In Bhim Singh v. State of J&K, when a member of the Legislative Assembly was wrongfully detained by the police so as to prevent him from exercising his right of attending the session of the Assembly, he was granted exemplary damages amounting to Rs. 50000.
Eg. Of the above maxim is in the case of slanderous words, though a man does not lose his penny by reason of speaking them, yet he shall have an action.
2. DAMNUM SINE INJURIA
It means damage which is not coupled which is not coupled with unauthorised interferences with plaintiff’s lawful right. Causing damage, however substantial, to another person is not actionable in law unless there is also violation of a legal right of the plaintiff. This is generally so when the exercise of legal right by one results in consequential harm to other.
Gloucester Grammar School case explains this point. There, the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees by 40 pence to 12 pence per school per quarter. It was held that the plaintiffs had no remedy for loss suffered by him
In Ushaben v. Bhagyalaxmi it was held that to hurt the religious sentiments of plaintiff in so far as the goddesses saraswati, Lakshmi and Parvatiwho were depicted as jealous and ridiculed is not recognised as a legal wrong. Moreover, no person has legal right to enforce his feelings on other
The maxim was applied in P. Seetharamayya v. Mahalakshmamma where the owner of land on or near a river has a right to build a fence upon his own ground to prevent damage to his ground by the overflow of river, even though as a result of the same, the overflowing water is diverted to the neighbour’s land and cause damage. This being a clear case of damnum sine injuria , the defendants were not liable for the harm of plaintiffs.
In Bradford Corporation v. Pickles , the House of Lords went a step further and held that even if the harm to the plaintiff has been caused maliciously, no action can lie for the same unless the plaintiff can prove that he has suffered any legal injury.
The court in Town area Committee v. PrabhuDayal held that the defendant were not liable as no injuria could be proved because if the person constructs a building illegally, the demolition of such building by municipal authorities would not amount to causing injuria to owner of the property.
Other examples being defamatory statements made on privileged occasions , damage caused under the act of necessity etc.
MENTAL ELEMENT IN TORTIOUS LIABILITY
Mental element is essential element of most of crimes. or guilty mind is essential along with the act of person in crime. The position under tort is explained as follows:
Fault when relevant-
In many torts like battery, assault, malicious prosecution, deceit the state of mind of a n individual is necessary to ascertain his liability. We may compare the conduct of the defendant with that of the reasonable man. If his conduct can be found innocent, he may be excused from liability. If the defendant’s horse for no fault on his part, cause injury to somebody on public highway, defendant can take defence of inevitable accident. The defence of necessity may be taken in the same way. Similarly pulling out of drowning person is not actionable
Liability without fault
There are certain cases where mental element is irrelevant and liability arouses without any negligence and intention on part of defendant. In such cases, honest mistake or innocence of defendant on his part is no defence. Tort of conversion is an example. In Rylands v. Fletcher rule of strict liability was laid down. If a person under this rule, makes non-natural use of his land by collecting something which is likely to do mischief by escape, he will be liable if the thing so collected escapes and cause damage.
Malice in Law
It signifies any wrongful act done intentionally without just cause or excuse. Malice in legal sense thus means a wrongful act intentionally done but without just cause or excuse or want of probable cause. Eg.defamation where a statement is made maliciously, without a legal justification.
Malice in Fact or Evil Motive
It means an evil motive for wrongful act. When the defendant does a wrongful act with a feeling of spite, vengeance or ill will, the act is said to be done maliciously. Motive means an ulterior reason for conduct. It is different from intention.
As a general rule, motive is not relevant to determine a person’s liability in law of torts. A wrongful act does not become lawful merely because the motive is good. In South wales Miners’ Federation v. Glamorgan coal Company , where the plaintiffs, the owners of coalmines, brought an action against the defendants, a miners’ union, for inducing its workmen to make the breach of contract of their employment by ordering them to take certain holidays, the court held that the act of defendant was not actuated by ill will but the object was to keep up the price of coal by which the wages were regulated. Thus the defendants were held liable.
It is well settled that the extraordinary writ jurisdiction cannot be exercised when civil rights of the parties are involved and the facts are disputed.
CAPACITY TO SUE AND BE SUED IN TORTS
In Law, every person has an inbuilt right to sue and be sued, which is also called as general capacity to sue. Corporations, Act of State, Persons having judicial authority, Independent and Joint Tortfeasors, even the Minor and many more has the capacity to sue and be sued.
WHO CAN SUE:
A minor can sue for any wrong done to him. A minor may even sue his parents for a negligent act. A minor who sustained injury while in the mother’s womb can also sue the guilty after coming to the world.
Infringement of rights of any person given by law gives rise to another to sue the person or whosoever.
A returning officer at a voting booth refused to allow the plaintiff, a duly qualified voter from voting. The candidate for whom the plaintiff was voting got elected and therefore no loss was suffered by him. The court held that although the plaintiff did not sustain any actual loss, but his legal right to vote was violated for which he was granted a remedy.
A corporation can sue in its own name for the tort committed against it.
Two persons acting independently and causing same damage is independent if tortfeasor and so can be sued.
Those minors who had conceived and not yet born and suffered injury due to toxic gas and were allowed the damages.
WHO CANNOT BE SUED:
A minor is generally not capable of being sued if he commits a tort since he is incapable of reimbursing damages. But there are cases in which he can be sued just like an adult. A minor can be sued for contributory negligence. If parents on own negligence places a child in position to commit tort, parents are held liable.
Foreign sovereign cannot be sued and it is known as a fundamental principal.
Ambassadors are diplomats cannot be sued in a country where they are posted and international law gives this right to them.
Public officials cannot be sued in their representative capacity for the torts committed by them or by their representatives.
The corporation incorporated under companies’ ordinance 1984 cannot be sued for tort requiring physical though like tort of assault.
Trade union registered under industrial relation ordinance 2008 cannot be sued for tort committed by them in the course of industrial dispute.
King or his servant cannot be sued for torts committed by them.
Husband and wife cannot sue each other for tort as long as they are husband and wife. But they can sue each other in any other relationship, for example, if both are working under a common boss/employee etc.
So till now hope you have understood that there is no any hard and fast rule for making someone sue or be sued. All persons have the capacity to sue and are even liable to be sued. It varies from circumstances and situations.
Trespass can be termed as the wrongful act done directly and intentionally to cause the harm to another property.
Trespass to person-assault:
A trespass to the person consists of any contact with someone’s person for which consent was not given. This is technically described as a battery. An assault would be a situation where a plaintiff reasonably believed a battery upon his person was about to be committed. An example of an assault would be where one person swings his fist at another person. If the person made contact, this would be an assault and battery. A defence to assault and battery would be in cases of self-defence.
Battery and False Imprisonment:
A harmful, or an offensive, touching of the plaintiff's person, caused directly or indirectly by a voluntary act of the defendant with an intention to inflict a harmful or an offensive touching, is a battery. It can be direct like as A slaps B then it is direct while the other is indirectly like pulling off a chair while the other is sitting. What is important in this is that there should be physical contact between the persons. Sec 350 of I.P.C. holds the person criminally liable for battery.
The plaintiff entered in a carriage of defendant’s railway but had forgotten to purchase a ticket for his travel. On one of the stops of the carriage, he tried to purchase the ticket but didn’t get any. At another place, he was asked for the ticket which he didn’t have and therefore was asked to get out of the carriage. He refused to do so. On his refusal, the defendant used force to get him out of the carriage. He bought an action against the defendant for use of force. It was held that the defendant was not liable, as he used force against the person who was not having a ticket and therefore was a trespasser, and therefore he couldn’t be held liable.
False imprisonment involves detaining a person without that person’s consent. It can take the extreme form of kidnapping or the less extreme form of detaining a shopper for suspected shoplifting without reasonable grounds. A defence to false imprisonment would be consent of the detainee, or if a store owner had reasonable grounds to believe that the detainee was guilty of shoplifting (shopkeeper’s privilege). This privilege allows a store owner (or his employee) to detain a suspected shoplifter based on reasonable suspicion for a reasonable time. The essential requirement for this is: There should be a total restraint on the liberty of a person, and there should not be any lawful justification for the same.
Trespass to Land:
A trespass to land involves going on or above the property of another without permission. A trespass can also involve the unpermitted use of the airspace of another’s property as well as actually going on the actual property. However, this rule has been modified to allow the flight of aircraft above the land as long as it does not interfere with the proper use of the land.
Trespass to land refers to the wrongful interference of one over the property of another without any legal justification. It should be direct and physical. Trespass to land is more of a right over the possession of property rather than ownership of property. That is the person who is having actual possession over the property can even has a claim against the owner of that property for trespass to land. The plaintiff was having a possession over the property by way of a lease which was void. But even after that, he was entitled to bring an action against the defendant for trespass.
Trespass to Goods:
Trespass to goods refers to the unintentional or intentional interference with the goods which are in the possession of other, without any lawful justification can be termed as trespass to goods. Unlike trespass to land trespass to goods are also wrong against the possession of goods. Therefore if A gives his watch for repairing to B for 2 days, then he can’t silently take his watch out of B’s possession without his permission. If in case A takes his watch without permission of B then A could be held liable under the trespass to goods, even if he is the real owner of the same.
Plaintiff and defendant were neighbours. Spring gun was attached on defendant’s property which was rigged to fire a bullet on trespassers. Plaintiff trespassed with knowledge of the spring gun and consent to that risk whereupon he was shot. It was held that defendant is not liable as volenti non fit injuria is applicable.
The plaintiff was trespassing on the defendant's property and he was hurt due to a spring gun. The defendant had put spring guns without any notice and was thus held liable.
Albert tried to jump the queue at a bus stop. Mr Lavin (an off-duty police officer), feared that this was going to provoke a breach of the peace and so took hold of albert and tried to prevent him from boarding the bus out of turn, the House of Lords upheld Lavin’s actions as lawful.
Search and seizure on the premises of appellant do not constitute an act of trespass. It can’t be said that any procedure carried out to find the truth on the property will be construed to be an act of trespass if the act is carried out with sufficient legal backing.
The performance of hysterectomy and salpingo-ophorectomy on a patient was an unauthorized invasion on her person by the doctor, and it can be deduced to be an assault and consequential battery. Her consent was required as she was an adult and although the doctor acted in the best of patient’s interests and can be considered to be mitigating circumstances to reduce compensation, however, in the interests of justice, the patient is entitled to the compensation.
Petitioners were licensed to operate kiosks through auction, and their right was taken away by the government corporation after the revocation of license on the expiry of the license period. Here the court made a distinction between license and lease and held that the license does not create possession and it is the discretion of the authority to revoke the license and dispossess the petitioner if any irregularity or discretionary act guides them to do so. A leased property can’t be trespassed on without lawful justification and exhortation of public need. On the other hand, a licence neither creates ownership nor possession rights in favour the person to whom it is granted. As a result, it can’t be said that the petitioner’s right has been trampled upon by trespassing on the property.
The word negligence means mere carelessness. In legal sense it means failure to exercise standard of care which the doer as a reasonable man should have exercised in the circumstances. It is a legal duty to take care when it was reasonably foreseeable that failure to do so was likely to cause injury. Negligence is a mode in which many kinds of harm may be caused. According to Winfield and Jolowicz, negligence is a breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff. It is even said as the omission to do something which a reasonable man would do, or doing something which a reasonable, prudent man would not do.
Essentials of Negligence:
Duty of Care towards the Plaintiff: It is the legal duty of care which the defendant owes towards the plaintiff. Let’s better understood it with the help of a case:
The plaintiff purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing underwear. The woollen underwear contained excess of sulphates which the makers failed to remove while washing them. The manufacturers were held liable.
The plaintiff purchased two sets of woollen underwear from a retailer and contacted a skin disease by wearing underwear. It contained excess of sulphates which the manufactures negligently failed to remove while washing them. For the same they were held liable as they failed to perform their duty.
2. Breach of Duty of Care: The plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform the duty. Let’s better understood it with the help of a case:
A number of persons died due the collapsing of a clock-tower in the heart of the Chandni Chowk, Delhi. The normal life of such structures are normally 40 45 years but the tower was around 80 years old. The Municipal Corporation of Delhi is held liable as it is under their hands and they are not able to take care and perform their duties efficiently.
A person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable for the same.
3. Consequent Damage/Consequential Harm to the Plaintiff: One of the last essential is to proof that the damage caused to the plaintiff was the result of the breach of legal duty caused by the defendant. Harm may be physical harm, harm to reputation, property, mental or even nervous shock. Let’s understand better with the help of a case:
The doctor was held liable for leaving a cotton map inside the body of the patient. Since he was negligent in doing his act and so was held liable for the same.
There are defenses available to the offence of negligence. These defenses are:
Contributory Negligence: This occurs when a plaintiff fails to take reasonable precautions which then combined with the defendant’s negligence to cause injuries to the plaintiff. It means that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another for the same act. This is determined on the basis of the standard of the reasonable person, and whether the person has acted as a reasonable person would have is decided on the basis of what the person knew or ought to have known at the time. The Court determines questions of contributory negligence on the basis of fact. To determine contributory negligence, the court uses a twofold test. Let’s understand it better with the help of a case:
The defendant had put a pole across a public thoroughfare in Durby, which he had no right to do. The plaintiff was riding that way at 8’O clock in the evening in August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards; he was riding violently, came against the pole and fell with the horse. It was held that the plaintiff could not claim damages as he was also negligent.
2. Act of God: Sudden and irresistible, direct, violent act of nature and could not be foreseen by human. Such as storm, extraordinary rainfall, earthquake, etc. A case is illustrated below to make a better understanding:
The defendant had a series of artificial lakes on his land in the construction/maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of the reservoirs burst and carried away four country bridges. It was held that the defendant was not liable as the water escaped by the act of God.
3. Inevitable Accident: It even works as a defence along with many other general defences which can be used in the offence of negligence. It is an accident that could not be prevented by the exercise of ordinary care, caution and skill. It is accident which is an accident physically unavoidable. A case is given below to make a clear understanding:
The plaintiff’s and defendant’s dogs were fighting, while the defendant was trying to separate them, he accidently it the plaintiff in his eye who was standing nearby. The injury caused to the plaintiff was held to be the result of an inevitable accident and thus the defendant was not held liable.
Res Ipsa Loquitur: It is a legal maxim, the application of which shifts the burden of proof on the defendant. It literally means ‘when the thing speaks for itself’. Normally in a case, it’s the plaintiff who provides evidences to prove that there has been negligence on the part of the defendant. But the situation changes with the use of this maxim. It shifts the burden of proof to defendant. Thereafter it’s up to the defendant to prove his non-liability and even that the act which caused injury to the plaintiff was not done by him. Let’s discuss the same with the help of few cases as examples:
Byrne was struck by a barrel of flour falling from second store window. The court presumed that the falling of barrel of flour from such a height and such a situation is it gives sufficient evidence of negligence.
The Olium gas leak had occurred in the work premises of Shriram Mills. Olium is a hazardous gas and this nature of the gas had caused the death of many people and causing serious injuries to the health of others stying in the close vicinity. It was not possible to establish negligence of the mill owners and Res Ipsa Loquitur was applied to shift the burden of proof on the mill owners to show that they were not negligent. It was further held that any company involved in hazardous activities will be held negligent prima facie and it is up to them to lead the evidence and prove how they are not negligent failing which they will be held liable.
Apportionment of damages: Our legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judge’s considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. It was irrelevant that the plaintiff’s share of the responsibility for the damage was insignificant relative to defendant. The enactment of the same was one of the most important developments in the history of tort law.
Doctrine of Alternative Damages: In Contributory Negligence, the Doctrine of Alternative Danger, the Dilemma Principle or the Choice of the Evils or the Agony of the moment means: Where the plaintiff is suddenly put in a position of imminent personal danger by the wrongful act of the defendant and he takes a reasonable decision to avoid the danger and acts accordingly and suffers injuries consequently, the defendant is liable. Few cases regarding the same are given below:
Jones vs. Boyce, (1816) Stark 493
Shym Sunder vs. State of Rajasthan, AIR 1986 SC 890
Doctrine of Identification: The doctrine of identification was a principle which stated that a person who gets injured while travelling due to another’s negligence cannot claim damages if the driver of the conveyance is contributory negligent. Here the passenger is “identified” with the contributory negligent driver. It is also the traditional method by which companies are held liable in most countries.
The first landmark case in common law which opined over series of previous authorities over the nature and compensation of psychiatric illness was White v. Chief Constable of South Yorkshire. After the aforementioned case, mental suffering was categorized into two kinds. The first is mental suffering which is a result of a foreseeable physical injury and is fairly compensated as personal injury causing ‘pain and suffering’ and the other type of mental suffering is that kind of suffering which is not concomitant of physical injury. The later is further sub-divided into two groups. The first group contains those type of mental suffering which is not a part of recognized psychiatric illness even when accompanied by extreme amount of grief. The second group contains those suffering which are a part of recognized psychiatric illness.
It has been stated in the White’s case that mental suffering not concomitant of physical injury which does not form a part of recognizable psychiatric illness is not redressable under the common law. In order to classify which, type of mental suffering is redressable by law, the sufferers are divided into two categories, primary and secondary victims. Primary victims are those who are directly involved in the occurrence of the event and are in place of danger to receive foreseeable personal injury. They are entitled to receive compensation as per the law for all the mental suffering which transform into recognizable psychiatric illness even if it is not foreseeable. Whereas, secondary victims are those are directly involved with the event and are not a direct participant. Hence, they are not in the position of danger of getting a foreseeable injury but yet suffers a recognizable psychiatric illness.
People falling under the category of secondary victim can bring an actionable claim before the court of law if they satisfy the following (Control Mechanism) conditions: -
The sufferer must have a close relationship with the main victim. Presumption lies in cases of relations like spouse, parent, or child.
The sufferer must be present at the accident or at its aftermath. This include immediate awareness of the incident either by himself or by a third party.
The so caused psychiatric injury must be a result of direct perception of the accident or its immediate aftermath after hearing about it from third party.
Shock according to Lord Ackner is sudden appreciation by sight or sound of a horrendous event involving someone close resulting into agitation of the mind violently.
In India, the Supreme Court in Lucknow Development Authority v. M.K. Gupta, stated damages in regard to mental agony in cases of harassment by the public authority of a victim are allowed under the Consumer Protection Act, 1986. One of the landmark cases is the Wilkinson case, where the defendant for the purpose of joke, falsify a fact to the plaintiff that her husband has lost his both legs in a serious accident. As a result of the news, the plaintiff suffered a serious nervous shock and was admitted to hospital in critical condition for some time. The Court held the defendant liable for the cost of treatment and to compensate the plaintiff for the trouble caused by his mischievous act.
Vicarious Liability of the State
As per the General Rule applicability the law holds responsible to the person who has committed the act. Whereas vicarious liability is an exception to the aforementioned general rule as it holds someone responsible for the acts or omissions of another person. It is based on the principle “qui facit per se per alium facit per se” stating that “he who does an act through another is deemed as per law to do it himself”.
The common law principle that “Crown shall not be held responsible for any act of its servants” was derived from the rule that states “king can do no wrong”. It was never made applicable in India and hence Article 300(1) of the Constitution of India states that the government of India or the States may sue or be sued in the name of the Union of India or States respectively. Though the law exempted the President and the Governor to be held directly liable by virtue of personal immunity granted under Article 361.
Peninsular and Oriental Steam Navigation Co. v. Secretary of State of India
The judgment brought to light the distinction between the acts of the public servants done in regard to delegated exercise of the sovereign powers and the acts done by the public servant in the conduct of other activities. The facts of the case was that the plaintiff was a private company and one of its servant was proceeding on a highway in Calcutta carrying a carriage on horses. There occurred an accident due to the negligence of a government servant employed in the Government Dockyard at Kidderpore who was carrying a piece of iron funnel in the same highway. The Court held that such acts of the servants of the government does not constitute a part of its sovereign functions as such functions cannot be delegated to be carried on by private individuals. Moreover, the activity so carried by the servant of the government was commercial in nature and was in course of trading activity, hence cannot be a part of sovereign function. The Court held Secretary of States responsible for the damage caused to the plaintiff from the acts of its servant.
Nobin Chandra Dey v. Secretary of State of India
In this case for the first time, the Court granted the exemption of sovereign function to the government. The facts of the case were that the plaintiff had a contract with the government where the government was to issue the license for the sale of ganja. There was a breach on behalf of the government. The Court held that there was no proper evidence for the breach of contract and even if there was, it cannot be held against the government has the act done was in exercise of the sovereign power and hence not actionable.
Post Constitutional Judgments
State of Rajasthan v. Vidhyawati
The Supreme Court followed the decision of P & O Steam Navigation Co., and held government liable. The facts of the case were that a government servant drove negligently in a highway and injured a pedestrian with his government vehicle. The Court held the Government of Rajasthan responsible for the tortious act of its servant and observed that “there is no justification, in principle, or in public interest, that the State should not be held liable vicariously for tortious acts of its servants.” Though the court refrained from defining the sovereign functions.
Kasturilal Ralia Ram Jain v. State of Uttar Pradesh
The facts of the case were that the police seized a huge amount of gold from the plaintiff and was kept safely in police custody. However, the gold was misappropriated by some constable. The plaintiff filed a case against the government and claimed for the losses incurred by him due to the negligence of the police officers. Unlike the Vidhyawati case, the Supreme Court held Government of Uttar Pradesh not responsible and rejected the claim of the plaintiff on account of sovereign immunity. It distinguished the case on factual grounds that driving a government vehicle from a workshop to Collector’s home could not be construed as exercising the sovereign function unlike the seizure of property by police. The later act of the government cannot be performed by any private individual or cannot be delegated and hence, on account of public interest and nature of the function, the government is immune to any action against it.
The State’s liability has after series of judgments been accepted in particular cases. State is said to be liable for acts or omissions of statutory authorities only when they decide to act outside their legal authority and such acts or omissions result into damage to any person. Any aggrieved person can fight for his claim by invoking his fundamental rights through Article 32 or Article 226 of the Constitution and hold State responsible under Article 300 of the Constitution.
Reputation of a man is considered to be his property, more valuable than other property. Defamation is considered as an act of causing injury to one’s reputation either by way of speech or in writing. Laws of defamation is considered as reasonable restriction over fundamental right of freedom of speech and expression given under Article 19(1)(a) of the Constitution.
A statement is considered to be defamatory if it exposes another person to hatred, contempt or ridicule, or thereby injure him with regard to his trade, business, profession, or to force him to be shunned or avoided in the society. Mere tendency of the statement to affect a person’s reputation is enough to be considered as an act of defamation, irrespective of the fact whether it actually result into lowering of the reputation.
It is to be considered that mere abuse or insult which may offends one’s dignity does not constitute as defamation, unless it lowers his reputation in the estimation of others.The “estimation of others” means estimation of right thinking members of the society in general.
Libel: - A statement is considered to be a libel, if it is a publication of a false and defamatory statement having the tendency to injure the reputation of another person without any lawful justification or excuse in front of right-minded people of the society. The statement must be in permanent form, such as in writing or printed. The essentials of libel are: -
Statement in writing.
Defamatory in nature.
Statement must be published.
Slander: - It is a false and defamatory statement is which either spoken words or in gestures intending to injure the reputation of other. It is considered to be in transient form.
Both libel and slander are considered as criminal offences under Section 499 of the Indian Penal Code and both are actionable in Civil Court without any proof of special damage.
Defenses of Defamation
There are three kinds of defenses for defamation as offence: -
Justification of Truth
“Justification of truth” as a defence is not equally application with respect to both criminal and civil cases. If a statement consisting of truth contains defamatory words or remarks, it is considered as an absolute defence to any action of libel or slander in form of civil suit. But when it comes to criminal trial, the defendant along with the aforementioned condition has to prove that not only are the words true to its nature, but also, that the purpose of publication of such statement was in regard to public good.
2. Fair and Bona fide Comment
A comment which is fair and is made with intention on a matter of public interest is no libel.The word ‘fair’ includes the relevancy of honesty. The view expressed in the comment must be in a way that it can be classified fairly as criticism. A comment is considered as an expression of an opinion and not an assertion of fact, though the opinion stated can be a result of fair assumption of facts.
The matters of public interest must be taken in broader sense. It must include all those matters in which public is legitimately interested or is legitimately concerned.Legitimate interest include direct, indirect, national or local interest including matters at public theatres and performances of artists but not that of private individuals.
Every individual has a right to comment without malice on acts of public men which concern him as a subject of the State.
‘Privilege’ is when a person by virtue of the facts of the case is justified to make a slanderous or libelous remark. The underlying principle with regard to the defense is welfare of the society and its general interest. There are two type of privileges: -
A privilege ‘absolute’ in nature exempt a statement to lie any action against it even if it is false and defamatory and is made with the intention of malice. It is based on the principle that interest of the community at large overrides the interest of the individual and the fact that in some cases, people must be allowed to speak their mind without any fear or prejudice. It includes: -
Parliamentary proceedings under Article 105(2) of the Constitution.
Judicial proceedings under Judicial Officers Protection Act, 1850.
Military and Naval proceedings.
Whereas the ‘qualified’ privilege allows to exempt the person for its false and defamatory remarks unless the plaintiff proves the absence of malice. In few cases, speaker is protected from the charge of defamation on the account of absence of malice. These are: -
Communication made during the course of legal, social or moral duty.
Communication made for self-protection, common interest and public good.
Reports on Parliamentary and judicial proceedings.
Reports on any other proceedings at public meetings.
The word nuisance is derived from the French word ‘nuire’, which means ‘to do hurt or annoy one in the possession of property is entitled as per law to undisturbed enjoyment of it. If someone else else’s improper use in his property results into an unlawful interference with its use or enjoyment or of some right over it, or in connection with it, the tort of nuisance occurs. In other words, nuisance is an unlawful interference with a person’s use or enjoyment of the land or of a right in connection with it. Nuisance is the injury to the right of a person in possession of a property to undisturbed enjoyment of it and results from an improper use by another person in his/her property.
According to Salmond, “ the wrong of nuisance consists in causing allowing without lawful justification the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff.”
A nuisance is differentiated from the trespass to land. A trespass is an invasion of a person’s interest in the exclusive possession of their lands, whereas nuisance is an interference with the use and enjoyment of the land and does not require interference with possession. Trespass is actionable per se but nuisance is actionable only on the proof of actual damage.
The Essentials of Nuisance:
An unlawful act,
Damage actual or presumed: damage actual or presume are essential elements to make a tort actionable. Also the damage should be substantial and not merely sentimental, speculative or trifling.
In Ushaben v. BhagyalaxmiChitraMandir, the plaintiffs-appellants sued the defendants-respondents for a permanent injunction to restrain them from exhibiting the serial “Jai Santoshi Maa”. It was contented that exhibition of the serial was a nuisance because plaintiff’s religious sentiments were being hurt as Goddess Saraswati, Laxmi and Parvati were defined as jealous and were ridiculed. It was held that hurt to religious feelings was not an actionable wrong. Moreover, the plaintiffs were free not to see the serial again.
KINDS OF NUISANCE:
1. Public Nuisance:
A public nuisance exists when an act or condition is subversive of public order or constitutes an obstruction of public rights. In other words, a public nuisance involves an unreasonable interference with a right common to the general public. In order to constitute a public nuisance , it is not mandatory that it effects the whole community. It is a public nuisance if the injury or annoyance affects the people of a local neighbourhood. Under Section 3(48) of the General Clauses Act, 1897, it has been provided that the word public nuisance means as it is defined in the Indian Penal code.
Section 268 of the IPC defines it as “an act or illegal omission which causesany common injury, danger or annoyance, to the people in general who dwells or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to person who may have occasion to use any public right.”
A public nuisance can either constitute a crime or may be subject of a civil action by public officials or private individuals. At common law, the term “public nuisance” covers a variety of minor criminal offences that interfere, for example, with the public health, safety, morals, peace or convenience.
Examples of public nuisance are carrying on trade which causes offensive smells or a manufacturer who has polluted the stream and might be fined. In India under section 91 of Civil Procedure Code, civil action is allowed without the proof of special damages.
Ram Raj Singh v. Babulal, in this case the defendant had created a brick grinding machine adjoining to the premises of the plaintiff, who was a medical practitioner. The brick grinding machine generated lots of dust, which in turn polluted the atmosphere. The generated dust entered into the chamber of the plaintiff and caused physical inconvenience to the plaintiff and his patients and a red coating was deposited on the coat of the doctor, which was clearly visible. It was held that special damages were proven regarding the plaintiff and a permanent injunction was issued against the defendant which would restrain him from running his brick grinding machine there.
2. Private Nuisance:
Nuisance is not only public but also private. Private nuisance is a civil wrong. There are certain essentials to private nuisance, they are as follows:
Interference with the use of or enjoyment of land
By unreasonable interference, it is meant an interference that causes damage to the property of the plaintiff or any discomfort regarding the enjoyment of the property by the plaintiff, which should be unreasonable.
Radhey Shyam v. Gur Prasad, Gur Prasad and another had filed a suit against Radheyshyam and others for a permanent injunction to restrains them from installing and running a flour mill in their premises. It was alleged that the mill was causing nuisance to the plaintiff, who was residing on the 1st floor of the same building. The plaintiff was losing peace on account of noises generated by the flour mill and it was also affecting their health severely. It was held that by keeping the mill in a residential area it had created a nuisance for the plaintiff and affected his health as well. The plaintiff was entitled to an injunction against the plaintiff.
Interference with the use or enjoyment of land can be caused by causing injury to the property, interference with the right of support of land and buildings or by injury to the comfort or health.
Unlike damages that is actionable, in nuisance it is needed to be proved that damages have been incurred due to nuisance. In case of private nuisance the damage is one of the essentials but the law often presume it.
1. Prescriptive right to commit a nuisance:
A right to do an act can be considered as a nuisance or he may acquire a prescription for that. If the person continues to do an activity on the land of the other person for about 20 years or more then that person acquires a legal right by the way of prescription for continuing that activity in the future as well. The same law have been provided in Section 26 of Limitation act and Section 15 of the Easement act.
In Mohini Mohan v. Kashinath Roy it was held that no right to hold kirtan upon another’s land can be acquired as an easement. Such right may be acquired by custom.
2. Statutory Authority:
When an act has been done under the given statute, it is complete defence. If the nuisance so caused has been authorised by a statute then it is not a tortious act. Statutory authority can be either conditional or absolute. In case of conditional authority, the statute allows the act notwithstanding the fact that it must necessarily cause a nuisance or any other form of an injury. In the conditional authority then state allows the act to be done only if it can be without causing any injury or nuisance and thus it calls for the exercise of the due regards for private rights.
1. Nuisance due to act of others:
When the act of two or more people who are working independently, may cause nuisance, although the aft has not been committed by a single person. In such cases, only a single person cannot be sued, rather everyone involved in the act will be held liable as the act was committed collectively and not solely.
2. Public Good:
It is not a defence in case where it is been causing a nuisance to particularly a single person and doing good to the rest of the public, otherwise no public utility undertaking could be liable for the unlawful interference with the rights of individuals.
3. Reasonable Care:
Use of reasonable care to prevent a nuisance is not a defence.
4. Plaintiff Coming to Nuisance:
Where the plaintiff himself comes to the place of nuisance, then it will not fall under defence. A person cannot be expected to refrain from buying a land that already has nuisance. The plaintiff can recover even if the nuisance has been going on before he went to that place.
Injunction- It may be temporary injunction which is granted on an interim basis and that it may be reversed or confirmed. When it is confirmed it takes the form of permanent injunction. However, the granting of an injunction is again the discretion of the Court.
Damages- the damages offered to the aggrieved party could be nominal damages i.e., damages just to recognise that technically some harm has been caused to plaintiff or statutory damages i.e., where the amount of damages is as decided by the statute and not dependent on the harm suffered by the plaintiff.
MALICIOUS PROSECUTION IN TORTS
Malicious prosecution is the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause. This tort balance two competing principles, namely freedom that every person should have freedom in bringing criminals to justice and the need for restraining false accusation against innocent people. Malicious prosecution is the abuse of the process of court by wrongfully setting the law in motion in criminal charge.
In an action of malicious prosecution the plaintiff must prove:
That the person was prosecuted by the defendant.
That the proceedings complained was terminated in favour of the present plaintiff
That the prosecution was instituted against without any just or reasonable cause.
That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention which was wrongful in fact.
That he suffered damage to his reputation or to safety of person, or to security of his property.
1. Institution or continuation of legal proceedings:
There must have been a prosecution initiated by the defendant. The word prosecution means a proceeding in a court of law charging a person with a crime. To prosecute is to set the law in motion.
In Mohammad Amin v. Jogender Kumar Bannerjee the defendant had filed a complaint before the magistrate charging the plaintiff with cheating. The Magistrate thereupon examined the complainant on oath and made an enquiry under section 202 of Cr.P.C. notice of the inquiry has been issued to the plaintiff who attended it with his counsel and incurred cost doing so. The magistrate finally dismissed the complaint u/s 203 of the code. In these circumstances Privy Council held that there was a prosecution.
The test is not whether the criminal proceedings have reached a stage at which they may be described as prosecution, the test is whether such proceedings have reached a stage at which damage have been caused to plaintiff. A mere presentation of complaint to a magistrate who dismissed it on the ground that there is no ground for any offence may not be sufficient ground for presuming that damage was a necessary consequence. It will be for the plaintiff to prove that damage actually resulted.
2. Termination of the prosecution in favour of plaintiff:
The plaintiff must prove that the prosecution ended in his favour. He has no right to sue before it is terminated and while it is pending.
3. Absence of reasonable or probable cause:
Reasonable and probable cause is an honest belief in the guilt of the accused based on a full conviction found upon reasonable grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed. As held in Hicks v. Faulkner , there must be:
An honest belief of the accuser in the guilt of the accused
Such belief must be based on an honest conviction.
There must be a reasonable ground for accusation
The circumstances so believed and relied on by the accuser must be of such an amount to reasonable ground for belief in the guilt of the accused.
Malice for the purpose of malicious prosecution means having any other motive apart from that of bringing an offender to justice. Malice means the presence of some other and improper motive.
DIFFERENCE BETWEEN FALSE IMPRISONMENT AMD MALICIOUS PROSECUTION:
Malicious prosecution is wrongfully setting the criminal law in motion but false imprisonment is wrongfully restraining the personal liberty of the plaintiff.
The action of false imprisonment owes its origin to the writ of trespass whereas the history of malicious prosecution may be traced back to the old writ of conspiracy.
The purpose of law of tort of false imprisonment is to protect the liberty of a person. The purpose of the law of malicious prosecution is to check the abuse legal process.
In case of malicious prosecution damage must be proved by the plaintiff but in false imprisonment damage is not an essential element.
STRICT LIABILITY AND ABSOLUTE LIABILITY
“No fault liability”
Sometimes the law recognises “No fault” liability. In these situations a person may be liable for a harm caused to another(plaintiff) even though there is no negligence on his part or there is no intention to cause the harm sometimes he(defendant) may even have made some positive efforts to avert the same. In these classes of the cases the liability of the defendant is stricter than in ordinary cases.
Certain judges who formulated this principle called them as absolute liability. It appears the absolute liability is liability without fault. It appears that there is no exception to it. But Justice Blackburn himself created exceptions after laying down the rule of absolute liability. It was, therefore, a mistake on the part of Justice Blackburn to call it as absolute liability. Winfield has corrected the mistake and suggested it should be called as strict liability. Because of the various exception to the applicability, the rule laid down in Ryland v. Fletcher , is generally known as ‘Rule of Strict Liability’.
EXCEPTION TO THE RULE OF STRICT LIABILITY:
1. Plaintiff’s Fault: if the plaintiff is at fault and any damage is caused, the defendant would not be held liable, as the plaintiff himself came in contact with the dangerous thing.
2. Act of God: The phrase act of god can be understood as an event which is beyond the control of any human agency. Such act happen exclusively due to natural reasons and cannot be prevented even while exercising caution and foresight.
3. Act of Third Party: The rule also does not apply when the damages is caused due to the act of a third party. The 3rd party means the person is neither the servant of the defendant, nor the defendant has any contract with them or over their work.
4. Consent of plaintiff: This exception follows the principle of Violenti non fit injuria.
The rule of absolute liability, in simple words, can be defined asa the rule of strict liability minus the exceptions. In India the rule of Absolute liability evolved in the case of M.C. Mehta v. Union of India, thisis one of the most landmark judgement which relates to the concept of absolute liability.
The facts of the case are that some oleum gas leaked in a particular area in Delhi from industry. Due to the leakage, many people were affected. The Apex Court then evolved the rule of absolute liability on the rule of strict liability and stated that the defendant would be liable for the damage caused without considering the exceptions to the strict liability rule.
According to the rule of absolute liability, if any person is engaged in an inherently dangerous or hazardous activity, and if any harm is caused to any person due to any accident which occurred during carrying out such inherently dangerous and hazardous activity, then the person who is carrying out such activity will be held absolutely liable. The exception to the strict liability rule also wouldn’t be considered. The rule laid down in the case of MC Mehta v UOI was also followed by the Supreme Court while deciding the case of Bhopal Gas Tragedy case. To ensure that victims of such accidents get quick relief through insurance, the Indian Legislature passed the Public Liability Insurance Act in the year 1991.
AIR 1986 S.C. 494.
(1935) All E.R. 209.
AIR 1978 Guj.13.
AIR 1958 A.P. 103.
(1895) AC 587.
AIR 1975 All.132.
 Holmes v. Mather,(1875) L.R.10 Ex.261
 (1868) L.R. 3 HL 330
(1905) A.C. 239
 Ashby v. White
 Bhopal Gas Ltd. v. Union of India
 Newton v. Edgerly.
 Mighel v. Sultan of Johore (1894).
 Broom v. Morgon
 Pratap Daji vs. B.B. & C.I. Ry.
 Graham vs. Peat
 Illot v. Wilkes 1820 3 B & Ald. 304
 Bird v. Holbrook 1828.
 Albert v. Lavin (1982) AC 546
 Sentini Cermica P. Ltd. v. Kunchi Krishna Mohan and Ors.
 Samira Kohli v. Prabha Manchanda and Anr.
 Rajinder Kumar Malhotra v. Indian Bank & Ors.
 Blyth v. Birmingham Water Works co. 1856.
 Grant v. Australian Knitting Mills Ltd.
 Grant v. Australian Knitting Mills Ltd., 1935 AC 85.
 Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750.
 Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929.
 Achutrao Haribhau Khodwa v. State of Maharastra, (1996) 2 SCC 634.
 Butterfield v. Forrester, (1809) 11 Ease 60.
 Nichols v. Marsland, (1875) LR 10 Ex.255.
 Brown v. Kendal, (1859).
 Byrne v. Boadle, 159 Eng.Rep. 299 (1863).
 M.C. Mehta v. Union of India, AIR 1987 SC 965.
 Cayzer, Irvine & Co v Carron Co (1884), 9 App Cas 873 (HL (Eng))
(1999) 1 All ER 1 (HL).
AIR 1994 SC 787.
Wilkinson v. Downston (1897) 2 QB 57.
(1968-1969) 5 Bom HCR App 1 P. 1
ILR 1 Cal 11.
AIR 1962 SC 933.
AIR 1965 SC 1039.
Dixon v. Holden, (1869) LR 7 Eq 488.
SEERVAI, Constitutional Law of India, 3rd edition, Vol. 1, p. 495; S.N.M. Abdi v. Prafulla K. Mahanta, AIR 2002 Gau 75, p. 76.
B. Kalyani v. District Collector, Villupuram, (2012) 2 MWN (Civil) 133 : (2012) 2 Mad LJ 881.
Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. ILR (2014) 2 Del 1288.
Mst. Ramdhara v. Mst. Phulwatibai, 1969 MPLJ 483.
See, RATANLAL DHIRAJLAL, The Indian Penal Code, 27th edition, p. 573.
Broadway Approvals Ltd. v. Odhams Press Ltd., (1965) 2 All ER 523.
The Madras Times Ltd. v. Rogers, (1915) 30 MLJ 294.
London Artists Ltd. v. Littler, (1969) 2 All ER 193.
M.G. Perera v. Andrew Vincent Peiris, AIR 1949 PC 106.
 AIR 1978 Guj 13
 AIR 1982 All. 285
 AIR 1978 All.86
 (1909) 13 CWN 1002
 (1948) 51 CWN 723 (PC)
 (1878) 8 QBD 167 (171)
 (1868) L.R 3 H.L. 330.
 AIR 1978 SC 1086