Law of Torts

Unit-IV
Torts against person- Torts affecting body-Assault,
Battery; Mayhem and False Imprisonment Torts Affecting
Reputation- Libel and Slander; Torts affecting freedom-
Malicious Prosecution, Malicious Civil Action, Abuse of
Legal Process; Torts affecting domestic and other rights-
Marital Rights, Parental Rights, Rights to Service,
Contractual Rights, Intimidation and Conspiracy; Torts
against Property

-Muskaan Dargar
 Torts against person

There are four main wrongs which fall under the umbrella of trespass to the person:
assault, battery, libel- slander and false imprisonment. They are intentional torts,
meaning they cannot be committed by accident. Although these descriptions sound
like they are crimes, and indeed do share their names with some crimes, it is
important to remember that these are civil wrongs and not criminal wrongs. A
person liable in tort for assault, battery, libel-slander or false imprisonment will not
face a sentence. Instead, they will be ordered to pay damages to their victim.
• Assault An attempt to do some harm.

In common law, assault is a tort, an act of the defendant which causes to the
plaintiff reasonable apprehension of the infliction of a battery on him by the
defendant. When the defendant creates his act by an apprehension in the mind
of the plaintiff that he is going to commit battery against the plaintiff, the wrong
of assault is completed. The wrong consists of an attempt to do harm rather than
the harm being caused thereby. In assault charges must include conduct that is
offensive which is offensive or causes another person to the fear of their safety.
This clearly means that one can be guilty of assault even if he/she did not
physically harm the victim.
In the case of R. v. S. George, the pointing of loaded gun to another is an assault.
If the pistol is not loaded, then even it may be an assault, if pointed at such a
distance that it may cause injury. if a person advances the manner of threatening
to use force , then there is assault. This was decided in the case of Stephens v.
Myers.

• Elements of Assault

If one or more elements have not been satisfied then -It can be a defense to an
assault charge. Elements of the crime of assault are:
• An act or conduct intended to created: To prove a assault, the defendants’ behaviour
must be motivated to create a situation of fear or danger in the victim’s mind.
Accident acts do not include allegations of assault.
• A reasonable apprehension: Further, the victim must reasonably believe that the
defendant’s conduct will harm him. The victim must understand the defendant’s
potentially harmful or offensive acts.
• Of imminent harm: The victim’s fear must be a direct response to a threat that is
imminent. Future threats, such as “I will beat you tommorrow”, will not result in
assault charges. In addition, there must be some kind of perceived physical threat to
the victim in the loss; For this reason, words by themselves generally do not
constitute an attack.
• It is believed that the defendant’s actions would cause physical danger or
abusive behaviour to the victim. Thus, the pretence of kicking or punching the
victim may be an attack, as will attempt to spit on the victim (aggressive
behaviour).

• All of the above elements must be present and the evidence must be
supported with evidence if found guilty for the attack.

• It can be difficult to prove whether the defendant actually intended the attack.
Similarly, judges often spend a lot of time determining whether a defendant’s
actions are considered harmful or abusive. In determining this, they will
consider what an average person may perceive as harmful or aggressive.
• Battery:

A battery is the intentional and direct application of any physical force to the
person of another. It is actual striking of another person, or touching him in a
rude, angry, revengeful, or insolent manner.

A battery includes an assault which is briefly stated is an overt act evidencing an

instantaneous intention to commit A battery . It is mainly distinguishable from an
assault within the incontrovertible fact that physical contact is important to
accomplish it. It cannot mean merely an injury inflicted by an instrument held
within the hand, but it includes all cases where a celebration is struck by any
missile thrown by another.
It doesn’t matter whether the force is applied on to physical body itself or anything coming in
touch with it. In order to establish the tort of battery, the plaintiff must however prove that
force used was without lawful justification. Thus, to throw water at an individual is an assault,
if any drops strike him, it’s A battery.
So too, of riding a horse at a person is an assault; riding it against him is battery. Pulling away a
chair as a practical joke, from one who is about to sit on it is probably an assault until he
reaches the floor, for a while falling he reasonably expects that the withdrawal of the chair will
end in harm to him. When he comes in touch with the ground , it’s battery.
The term assault is commonly used to include battery. But every laying on of the hands is not a
battery. The party’s intention must be considered. Touching a person, for instance so as merely
to call his attention, is not battery.
• Mayhem- is another most serious form of battery.
 Difference between Assault and Battery
Assault Battery
Battery includes intentional application of
Definition Assault is the attempt to commit battery. force to another person without any lawful
justification.
Physical contact is needed.
Important Threat of violence is enough for assault. No
aspect physical contact is necessary.

Create reasonable apprehension in the

There should be use of force.· The same
Principle plaintiff’s mind that immediate force will
should be, without any lawful justification.
also be used.

Objective To threaten a person. To cause harm.

Nature Not necessarily physical. Must be physical.

• Defences to Trespass to the Person consent, necessity, self defense and defense of others

1. Consent If a person consents to being physically contacted, then no tort of battery

exists. Consent may be given expressly by words or implied from conduct. A patient can
give express medical consent to their doctor before undergoing an operation which in
other circumstances might amount to a battery. Similarly, certain sports, such as rugby,
on the face of it comprise a continuous series of assaults and batteries. Clearly it would
be absurd if the law allowed a rugby player to sue the opposing team for trespass to
the person. So a person who consents to being physically contacted within the rules of
a particular game is not a victim of a tort. Deliberate acts of violence on the playing
field, though, do not fall within this defence.
2. Necessity A wrongdoer may have a successful defence if they can show that it
was necessary to act in the way they did. In other words, there must be a sound
justification for breaking the law. A person who grabs another and drags them by
force from the path of an oncoming vehicle, and who by doing so prevents them
from serious injury or death, is not liable in tort. Similarly, a doctor who performs
emergency surgery on an unconscious patient, who naturally cannot consent, in
order to save their life, may successfully argue that the battery was necessary if
the surgery performed was limited to that which was required to save the
patient’s life.
3.Self-Defence The defence of self-defence will only succeed if the force used was
not excessive and was reasonable and necessary in the circumstances to prevent
personal injury. Each case must be considered on its own facts. For example, if a
person is attacked with a knife it may be reasonable for them to defend themselves
also with a knife, but not necessarily with an cricket bat. It will be for the courts to
decide what is reasonable.

4.In Defence of Others Similarly to self-defence, a wrongdoer may successfully argue

that their actions were justified in order to assist a third party who they reasonably
believe is in immediate danger of being attacked. Most commonly this occurs when a
parent is protecting a child or one spouse is protecting another.
• False imprisonment:
False imprisonment may be a total restraint of the freedom of an individual , for, however,
short time, without a lawful excuse. The word “false” means wrong or erroneous. It is a tort of
strict liability and therefore the plaintiff has to not prove fault on the a part of the defendant.
To constitute this wrong two things are necessary:

(1) The total restraint of the liberty of the person: The detention of the person may be either
actual or physical and constructive, i.e., by mere show of authority.
(2) The detention must be unlawful. The period that the detention continues is immaterial.
But it must not be lawful. If one compels another to stay in a given place against his will, he
imprisons that other just as much as if he locked him up in a room; compelling a person to
travel in a given direction against his will may amount to imprisonment;
but if one man merely obstructs the passage of another during a particular direction,
whether by a threat of private violence or otherwise, leaving him at the freedom to
imprison him. Imprisonment may be a total restraint of the freedom of the person, for
however short a time, and not a partial obstruction of his will whatever inconvenience
it’s going to bring to him.

A person may be liable for false imprisonment not only when he directly arrests
or detains plaintiff, but also when he was “active in promoting or causing” the
arrest or the detention. Apart from the cases where the liability can be fastened
vicariously when the wrong is committed by a servant or agent, liability can also
arise when arrest or detention is procured through the instrumentality of some
officer.
 Torts Affecting Reputation- Libel and Slander;
A man’s reputation is considered valuable property and every man
has a right to protect his reputation. This right is acknowledged as
an inherent personal right and is a jus in rem i.e., a right against
all persons in the world. Defamation refers to any oral or written
statement made by a person which damages the reputation of
another person. As per Black’s Law Dictionary, defamation means
“The offence of injuring a person’s character, fame, or reputation
by false and malicious statements”. If the statement made is
written and is published, then it is “libel”. If the defamatory
statement is spoken, then it is a “slander”.
 Libel Slander

It is addressed to the eyes. It is addressed to the ears.

The defamatory statement is made in The defamatory statement is made by

some permanent and visible form, such spoken words or some other transitory
as writing, printing, pictures and form, whether visible or audible, such as
emoticons. gestures, hissing or such other things.

It is an actionable tort as well as a It is a civil injury only and not a criminal

criminal offence. offence except in certain cases.

It is actionable per se (in itself) i.e., It is actionable only on proof of actual

without proof of actual damage. damage.
Elements of Defamation:

• The Statement should be made- A statement can be made by words either

spoken or intended to be read, or by signs or by visible representations. For
example, A is asked who stole B’s diamond ring. A points to C, intending to
cause everybody to believe that C stole the diamond ring. This is defamation.
• The Statement must refer to the plaintiff- The defamatory statement must
refer to the person, class of persons or the trustees of a company. The reference
may be express or implied. It is not necessary that the plaintiff has to be
mentioned by name, if he can still be recognized. The person referred to in the
defamatory statement can be living or dead, however, defamation suit on behalf
of a dead person can be filed only if the person filing the suit has an interest.
• The Statement must be defamatory- Defamation starts with someone making a
statement, and any person who makes a defamatory statement can be held
liable for defamation.
A defamatory statement tends to diminish the good opinion that others hold about
the person and it has the tendency to make others look at him with a feeling of hatred,
ridicule, fear or dislike. Abusive language may also be defamatory, for example, to call
a man hypocrite or a habitual drunkard. A few illustrations to understand what is
defamatory and what is not. To say a motorist drives negligently is defamatory. To
criticize goods is not defamation. To say that a baker’s bread is always unwholesome is
defamatory. To state that a person has not that degree of skill which he holds himself
as possessing is defamatory.

• The intention of the wrongdoer- The person making the defamatory statement
knows that there are high chances of other people believing the statement to be
true and it will result in causing injury to the reputation of the person defamed.
• The Statement should be false- A defamatory statement should be false because the truth
is a defence to defamation. If the statement made is true then there is no defamation as the
falsity of the statement is an essential ingredient of defamation. The law does not punish
anyone for speaking the truth, even if it is ugly.

• The Statement should not be privileged- In some cases, the statements may be privileged
i.e. the person who has made the statement is protected from such liability.

• The Statement must be published- For defamation to occur, the statement should be
published. The statement should be communicated to a third party. Any statement written
in a personal diary or sent as a personal message does not amount to defamation, but if the
sender knows that it is likely that a third person may read it, then it amounts to defamation.
In Mahendra Ram v. Harnandan Prasad, the defendant was held liable because
he had sent a defamatory letter written in Urdu despite knowing the fact that
the plaintiff could not read Urdu and ultimately the letter will be read by
someone else.

• The third party believes the defamatory matter to be true- The other people
of the society believe that the defamatory matter said about the plaintiff is
true.

• The Statement must cause injury- The statement made should harm or injure
the plaintiff in some way. For example, the plaintiff lost his job because of the
statement made.
 Defences available against Defamation
• Justification by truth

Truth is an absolute defence. If the statement made is authentic then it does

not constitute defamation. The burden of proof is on the defendant who is
claiming the defence. For instance, X makes a statement in an interview about Y
indulging in gambling and Y files a suit against him. If X is able to justify or prove
it, then Y’s claim will be dismissed. In Radheshyam Tiwari v. Eknath, the
defendant was unable to prove the facts published by him and therefore was
held liable for defamation.
• Fair and bonafide comment
Nothing is defamatory which is a fair comment in the matter of public
interest. The defendant can avail this defence when he has merely
made a fair comment in a matter of public interest. This defence is
based on public policy which gives every person the right to
comment and criticize without any malicious intention the work or
activities of public offices, actors, authors and athletes as well as
those whose career is based on public attention. Any fair and honest
opinion on a matter of public interest is also protected even though it
is not true. There is no definition of a matter of public interest.
Generally, a matter of public interest can is a subject which invites
public attention or is open to public discussion or criticism.
• Absolute Privilege
It gives the person an absolute right to make the statement even if it is defamatory, the
person is immune from liability arising out of defamation lawsuit. Generally, absolute privilege
exempts defamatory statements made:

1.during judicial proceedings,

2.by government officials,

3.by legislators during debates in the parliament,

4.during political speeches in the parliamentary proceedings and,

5.communication between spouses.

• For example, Shashank is a member of Parliament and he gives a speech in the
parliamentary proceedings which defames Harsh. Here Shashank is protected by absolute
privilege. In the case of T.J. Ponnen v. M..C. Verghese, the court held that a letter sent by a
husband to his wife which contains defamatory statemts about the father-in-law is not a
case of defamation. It is a privileged communication between the spouses as per Section
122 of the Indian Evidence Act, 1872. In Chatterton v. Secretary of State for India, it was held
that the letters from the Secretary of State of India to his Parliamentary Under-Secretary
providing the materials for the answer to a parliamentary question was absolutely
privileged.
Qualified Privilege
When a person making the statement has a legal, social or moral duty to make it
and the listener has an interest in it, then the defence of qualified privilege is
allowed. Following are the instances where this defence can be availed of:
1.Reference for a job applicant,
2.Answering the police inquiries,
3.A fair criticism of a published book or film in a review,
4.communication between parents and teachers,
5.communication between employers and employees,
6.communication between traders and credit agencies are all relationships that
are protected by qualified privilege.
• For example, a teacher tells the parents about the child’s habit of stealing and
warns them. In this case, the teacher can take the defence of qualified
privilege as he made the statement in good faith and in the interest of the
child.

Absolute Privilege Qualified Privilege

The defendant can avail this defence even The defendant can avail this defence when
when he has made the false and defamatory he made the false and defamatory
statement deliberately and maliciously. statement deliberately, but without malice.

It can be used as a defence in the

It can be used as a defence in the communications made in the course of legal,
Parliamentary, judicial, naval, military or social or moral duty, for self- protection, for
State proceedings. protection of common interest, for the
public good.
• Consent
If the plaintiff consents to the statement made, then there is no defamation. The
consent of the plaintiff gives absolute privilege to the publisher, it is immaterial
whether the plaintiff knew that the information approved for publication was
defamatory or not. Consent may be given by words or actions, including inaction.
If the consent is obtained fraudulently or from a person of unsound mind then it
will be invalid.
• Censure passed in good faith by the person having lawful authority
It is not defamation of a person having over another authority either conferred
by law or arising out of the lawful contract made with another to pass in good
faith any censure on the conduct of that other in matters to which such lawful
authority relates. For instance, a judge censuring the conduct of a witness or a
banker censuring the cashier of his bank or, an engineer submits a report to the
municipality that the contractor had taken away the stock of metal. If the
engineer has made the report in good faith, then he will not be liable for
defamation.
 Difference Between Civil Defamation And Criminal Defamation
Sr. No. Defamation as a Tort Defamation as a crime

It is a criminal offence, which is bailable, non-

1. It is a civil wrong.
cognizable and compoundable.

It is based on tort law- an area of law which has no It has been defined as an offence under Section 499
2. statutes to define wrongs and relies completely on and the punishment for the same is given in Section
case laws to define wrongs. 500 of the Indian Penal Code, 1860.
It provides redressal to the plaintiff by awarding
It seeks to punish the offender and send a message
3. damages in the form of monetary compensation
to the society not to commit such an offence.
from the accused.
The offence of defamation has to be established
4. Damages are awarded on the basis of probabilities.
beyond a reasonable doubt.
The plaintiff can move to criminal court and ask the
5. It is generally a slow process to seek relief in India.
offender to take cognizance of his complaint.

6.
A person found guilty can be penalized only by A person found guilty can be punished with
making him pay damages. imprisonment up to two years or fine or with both.
 Torts affecting freedom- Malicious Prosecution
Malicious prosecution is a mode of abuse of legal process. Malicious prosecution consists of
institution of criminal proceedings in a court of law maliciously and unreasonably and without
a proper cause of action. If a person can show actual damage, he can file an action for
damages under the law of torts.
Essentials:
i. The proceedings were instituted without any probable or reasonable cause.
ii. Proceedings were filed maliciously and not to book a criminal in a court of law/not with a
mere intention of carrying the law into effect
iii. Termination of Proceedings in favour of the Plaintiff
iv. As a result of such prosecution, the plaintiff has suffered damage.
• Example: P informed police that a theft has been committed in his house and he suspected
that it has been committed by A. A was consequently arrested but was discharged by the
magistrate as the final police report showed that A was not connected with the theft. When
A prosecuted P for malicious prosecution, the court dismissed the suit as there was no
prosecution in a court of law. To prosecute is to set the law in motion.

• In Abrath v. N.E.Railway Co.,one ‘M’ had recovered compensation for his injury in a railway
collision from the railway Co. Latter on the railway Co. came to know that those injuries
were not suffered in the collision but were artificially created by him in collision with one
doctor ‘P’. The railway Co. made inquiries and on legal advice sued P for conspiring with M
to defraud the railway Co. ‘P’ was acquitted and he filed an action for malicious prosecution
against the railway. It was held that railway Co. had reasonable and probable cause
• Another essential ingredient is malice. Malice means presence of some
improper or wrongful motive, intent to use the legal process in question for
some other purpose e. g. a wish to injure the other party rather than to
vindicate law or justice. Mere acquittal of the plaintiff is no proof of malice. It
may be malice if the person acted in undue haste, recklessly or failed in
making proper and due inquiries or in sprit of retaliation or on account of long
standing enmity.
Torts affecting domestic and other rights- Marital Rights,
Parental Rights

• The evolution of Domestic Relations Tort has not only influenced the manner in
which family members can collect as a result of tortious behavior for damages or
interference with the family unit itself; it has influenced the manner in which
husbands, wives, kids, and legal guardians are seen as legal entities.

• Children and wives were originally regarded as chattels under common law and
worked under the proprietary rights of a man. Several advances in family law in the
1900s provided for women and children’s legal rights to act as separate legal
entities from their husbands/fathers.
• Husband and Wife

In the case of husband and wife, the issue of personal liability can be dealt with two
scenarios. First, the husband’s liability for wife’s torts and Second, the action between the
husband and wife.
i) Husband’s Liability for Wife’s Torts- Under common law, a married woman could not sue any
person for any tort in the earlier phase of development of tort, unless and until her husband
joined her as a party to the plaintiff. In addition, a wife could not be sued without making her
husband a defendant’s party.
These anomalies were removed by the legislative acts, i.e., The Married Women’s Property
Act, 1882, and the Law Reform (Married Women and Tortfeasors) Act, 1935. After these acts,
a wife may sue or be charged without making her husband a joint party to the suit. However,
if the husband and wife are joint tortfeasors, then they can be made jointly liable.
• Parental and Quasi-parental Authority
Parents and persons in loco parentis have a right to administer punishment on a child to
prevent him from doing mischief to himself and others. The law is that a parent, teacher, or
other person having lawful control or charge of a child or young person is allowed to
administer the punishment on him. Parents are presumed to delegate their authority to the
teacher when a child is sent to the school.
Such an authority warrants the use of reasonable and moderate punishment only and,
therefore, if there is excessive use of force, the defendant may be liable for assault, battery or
false imprisonment, as the case may be.
In England, as per Section 1 (7), Child and Young Person’s Act, 1933 a parent, a teacher, or
other person having lawful control or charge of a child or young person is allowed to
administer the punishment on him.
• Cleary v. Booth, (1893) 1 Q.B. 465

Facts: Booth (Defendant), a school headmaster, administered corporal punishment on two boys after
learning that they had fought on the way to school. The defendant was charged with assault and
battery and convicted for it. He appealed.

Held: The authority of a teacher to correct his students is not limited only to the wrongs which the
student may commit upon the school premises but may also extend to the wrongs done by him
outside the school, for “there is not much opportunity for a boy to exhibit his moral conduct while in
school under the eye of the master, the opportunity is while he is at play or outside the school”.

There is no question that, while at home, a child is under a parent’s authority. It is also clear that while
at school, a child is under the head master’s authority. The question is under what authority the child
is when he was on his way from home to school.
Likely, the child may be said to be under the headmaster’s authority through the parent’s
delegated duty. In that case, if necessary, the headmaster has the right to inflict punishment
on the child in order to correctly raise the child. The authority of the headmaster extends not
only to acts performed by children while they are at school but also on the way going to and
fro from school to home. Here, the two boys were on their way to school when they are
engaged in fighting. The defendant was well within his right to punish the boys.

Eisel v. Board of Education (1991)

The Maryland High Court ruled that school counselors were negligent in not revealing their
knowledge of a student’s threatened suicide to the child’s parents. The counselor’s negligence
was not for failure to physically prevent the student’s suicide, but rather for not
communicating information regarding the child’s intent.
Tort Against Property
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