Torts Notes For LLB Sem 1

CHAPTER 1
Introduction
1.1 Definition and Meaning of Tortious Liability:
"Tort" comes from "Tortum" which means "to twist". What is twisted is the conduct of
the wrong-doer, called the defendant. Such a twist causes a legal injury (a civil wrong))
to the plaintiff and the courts provide for a remedy to him in the law of Torts.
"Tortious liability arises from a breach of duty fixed by law. This duty is towards persons
generally and its breach is redressible by an action for unliquidated damages"
(Winfield).
Salmond defines, “Tort as a civil wrong for which the remedy is an action for damages
and which is not exclusively a breach of contract or breach of trust or breach of other
merely equitable obligations.”
Thus "torts are civil wrongs. But all civil wrongs are not torts". To be a tort, the civil
wrong should have three essentials:-
1. The duty is primarily fixed by law. Law provides for legal rights and legal
duties. In fact, one man's rights are another man's duties. Such legal rights are
numerous in number; as for example, everyone has a right to his reputation,
right to property, right to his person etc. On every other man duties are
imposed by law, such duties are numerous in number; Ex: Not to assault others,
not to commit Nuisance, not to slander others, not to deceive others, not to
trespass on other's land, not to defame others etc. The violation of such a legal
duty gives rise to a tortious liability.
2. The legal duty is towards persons generally: The legal duty, for example, not
to slander means not only that slander should not be committed against X or
Y but in tort the duty is considered general, i.e., it is against all persons in the
world (in rem). Hence, the legal duty not to assault, libel, trespass etc., is
against all persons in the world.
1|Page - Dr. Avani Mistry

3. Unliquidated Damages: Damages are divided into liquidated and unliquidated.
'Liquidated', means the amount is pre-estimated and fixed by the parties
themselves as in a contract. Damages are unliquidated when the court, in its
discretion, awards compensation taking into consideration a large number of
factors that help to assess the compensation. In fact, according to Winfield
action for unliquidated damages is the basis of tortious liability. It may be noted
that there are other remedies as well. Eg. Self-defense, temporary or
permanent injunction, action for specific restitution of land and chattels, or
abatement of nuisance etc.
1.2 Torts Distinct From Breach of Contract:
Torts Breach of Contract
In tort, there is an infliction of an injury Consent is the basic essential of all

without the consent of the plaintiff. Consent contractual obligations. In fact, if there
negatives liability under "Volenti non fit is no consent, there is no contract at
injuria", subject to certain exceptions. all.
There is no Privity between parties. Ex: There is Privity of contract between

Donoghue V Stevenson: the manufacturer the parties called the contracting
of ginger-beer was held liable for parties,
negligence to the ultimate consumer.
In the law of torts, there is a specific In case of a contract, breach is due to

violation of a right in rem (right against all the violation of a right in personam.
the of persons in the world). Right to
Breach of contract to sell. right to
personal safety, right to reputation.
property etc., are examples
Though the above distinctions are made out, it cannot be disputed that there are cases
where torts and breach of contract overlap e.g. A surgeon negligently operating P's
minor son. There is no contract between the surgeon and the father of the minor son,
but there is a tort of negligence by the surgeon in relation to the boy.

1.3 Tort Distinct from Quasi-Contracts:
a) In tort, there is a primary legal duty fixed by law, but in quasi-contract there is no
such duty. A qualified surgeon who operates on P, owes a legal duty to P, and hence
becomes liable for negligence. In quasi-contract, for example, in unjust enrichment,
there is no legal duty where A delivers goods by mistake to B instead of to C. B is not
under a legal duty not to receive the goods. Of course, B must return the goods to A,
but he is not liable to pay compensation to A.
b) In tort, breach of duty is redressible by an action for dam ages. The damages are
determined by the Courts. There is no such liability in quasi-contracts.
1.4 Torts Distinct From Crime:
Torts Crime
In tort, there is an infringement of a civil In crime, there is an infringement of a

right or a private right of the party. public right affecting the whole
Hence, a tort is a private wrong. community. Hence, a crime is public
wrong.
In tors, the wrong-doer (tort feasors) In crime, the criminal is punished by the
should pay compensation to the plaintiff state in the interests of the society,
according to the decision of the court. punishment may be death, imprisonment
or fine as the case may be.
In tort, the affected or injured party may In crime, the state is under a duty to
sue. institute criminal proceedings against the
accused.
The right to sue or to be sued survives to The legal action dies with the person in
the successor. crimes subject to certain exceptions. The
maxim is 'Actio personalis moritur cum
persona', (personal action dies with the
person).

1.5 Reasonable Man Explained:
The reasonable man has a reference to the ''Standard of care" fixed by law in
negligence or in other tortious obligations.
A reasonable man is a person who exhibits a reasonable conduct which is the behavior
of an ordinary prudent man in a given set of circumstances. This is an abstract
standard. As Lord Bowen rightly stated "he is a man on the Clapham Omnibus". He is
not a perfect citizen or a "paragon of circumspection." Winfield.
As Winfield pointed out, the reasonable man's standard is a guidance to show how a
person regulates his conduct. A driver should have the capacity to drive as an ordinary
prudent driver. He need not show the skill of a surgeon, an advocate, an architect or
an engineer. He must show his skill in his own work or profession.
In fact, "a reasonable man is a judicial standard or yardstick which attempts to reach
exactness. This is because complete exactness may not be reached". Hence, the
judge first decides what a reasonable man does and then proceeds to find out whether
in the circumstances of the case, the defendant has acted like a reasonable man.
Conflicts do arise as it is not possible to specify reasonableness in all its
exactness, or with specifications.
Reasonableness can be best explained in cases of negligence. Negligence is in fact

the omission to do something which an ordinary prudent man would not do in the
circumstances. Hence, reasonable man is a man who uses ordinary care and skill.
In Daly V. Liverpool Corporation it was held that in deciding whether a 70 year old
woman was negligent in crossing a road, the standard was that of ordinary prudent
women of her age in the circumstances, and not a hypothetical pedestrian.
The standard of conduct is almost settled since the case of Vaughan V. Manlove.
The defendant D's hay stock caught fire and caused damage to p's cottages. D was
held liable as he had not acted like a prudent man:
In the Wagon Mound case (No 1) the test of "reasonable foresight" was applied and
the defendants were held not liable.
In fine, a reasonable man is only a legal standard invented by the courts.

CHAPTER 2
MOTIVE AND MALICE

2.1 Motive and malice explained:
The general rule is that motive is irrelevant in torts. Motive denotes the reason for the
conduct of an individual. Thus, if the act is unlawful then mere good motive will not
exonerate it. If the conduct is lawful then a bad motive will not make him liable.
The fact that motive is irrelevant is evident from the leading case: Mayor of Bradford
Corporation V. Pickles. Here, the corporation refused to purchase the land which
belonged to pickles, for the purpose of the water supply scheme. In revenge, he sank
a shaft on his land. In consequence, the water of the corporation became discolored
and diminished. The corporation sued pickles. It was held that pickles were not liable.
The judge said "we are to take the man's act into consideration, not the motive behind
it".
In another case, Allen V. Flood this was re-stated. In this case, P was appointed by
A to make repairs to the ship and this was terminable at will. D, belonging to an union
objected to the appointment and threatened to go on strike if P was not removed. A
dismissed P. P sued D. Held, the motive of D may be bad but not unlawful and hence
not liable. This shows that if the act is lawful, mere bad motive will not make the act
tortious.
Malice: It means (1) evil motive and (2) a willful act done without just cause or excuse.
The rule is that if lawful, evil motive will not make the act tortious. Further, if the act is
good, still the defendant becomes liable if the act injures and damages the rights of
the plaintiff. In Bradford Corporation V. Pickles, the court observed; 'If the act gives
rise to damage without legal injury, then motive however reprehensible it may be, will
not make the act tortious'.
In another case (Guive V. Swan), D, a baloonist landed on the garden of P. People, in

large number, entered the garden to see him, but much damage was done to the
vegetables and flowers. P sued D. Held, D had committed trespass and liable. Though,
D had no motive or malice he was held liable.
Exceptions to the rule that Motive is irrelevant:
i) Malicious prosecution,
ii) Conspiracy.

iii) Deceit or Negligent Misstatements.
iv) Some circumstances in Nuisance. (Christie V. Davey)
2.2 Ubi jus ibi remedium:
"Where there is a right, there is a remedy"
According to some jurists, the law of torts had developed from this maxim."Jus" means
the "legal right", to do something, "Remedium" is the right to take action (ie. remedy
according to law).
Hence, a person who has a legal right also has the means to vindicate his rights. It is
difficult to imagine a legal right without a legal remedy. In injuria sine damno, there is
a legal remedy available to the plaintiff through the court. But, in cases coming under
damnum sine injuria there is no legal injuria and hence there is no compensation.
2.3 Injuria Sine Damno and Damnum Sine Injuria Explained:

'Damnum' is damage in the substantial sense of the term, involving economic loss or
loss of comfort, service, health, or the like. 'Injuria' is legal injury and hence tortious.
Injuria sine Damno:
Injuria Sine Damno means "legal injury, without damage". There is an infringement of
a legal right, but no substantial damage or loss.
Ashby V. White:
The defendant, a returning officer, without proper reason refused to register P's vote
duly tendered. Held that the plaintiff had a legal right to vote and that there was a legal
injury to him. Defendant was held liable. The Court observed "every injury imports
damage, though it may not cost a farthing to the party".
Merzette V. william (Bank Case):
In this case without any excuse the Banker refused to honor the cheque presented by
a customer. Held: that the Banker was liable to the drawer. Compensation was paid
by the Bank.

Damnum Sine injuria:
Damnum sine Injuria means actual and substantial loss without the infringement of the
legal right. The actual loss sustained by the plaintiff may be substantial enough, but
as no legal injury has been done to him, no compensation can be recovered.
Chasemore V. Richards:
The defendant D dug a well on his own soil. In consequence, the adjoining owner P's
stream of water dried up and his mill was closed down. P sustained heavy economic
loss. Held: No compensation. There was no legal injury to P but only economic loss.
Gloucester Grammar School:
A teacher who was illegally terminated by Gloucester School opened a school

opposite to it. The pupils, who loved the teacher, joined his school in large numbers.
Thereupon the Gloucester school was closed. Held; No compensation. Reason:
Business competition and teacher has not infringed any legal right of the Gloucestor
School.
Moghul Steamship Co., V. Mcgregor:
A B C and D four ship owners joined together and offered special terms to the
consignors to book cargo. In consequence, P a' prosperous steamship company
suffered substantial loss, for which it sued ABC and D for compensation. Held: Not
liable. (Business competition and no legal injury to P).
Dickson V. Reuter Telegraph Company:
A sent a telegram to B to send goods. The telegram was wrongly delivered by the post
office to c. c sent the goods to A. A refused to take the goods. C sued A. Held: No
compensation.
2.4 Misfeasance Non feasance and Malfeasance:

Misfeasance means doing a lawful act in an improper manner. (Cases in master and
servant). Nonfeasance means not performing or omitting to do that which must be
legally done (cases of negligence). Malfeasance means doing an unlawful act e.g.
trespasses.

CHAPTER 3
GENERAL DEFENCES
General Defenses: Nature and Scope
A defence is a plea put forth by the defendant against the claims of the plaintiff. The
following are the defences open to a defendant in an action for tortious liability.
• Volenti non-fit injuria.

• Inevitable accident.
• Act of God
• Private defence.
• Necessity.
• Statutory authority.
3.1 Volenti non fit injuria:
This means that "if the suffering is willing, no injury is done." Accordingly harm or even
grievous hurt may be inflicted on a person for which he has no remedy if he has
consented to take the risk. To this group belong injuries sustained in lawful games or
sports or surgical operations. The origin of this can be traced to the writings of Aristotle.
Roman jurists had recognized it. The modern meaning is confined to the injuries
sustained by persons. Here the risk to which a person gives his consent is "the risk of
an operation being unsuccessful", similarly, in respect of injured but, if he is injured in
a legal incident then, there is no injury because he has consented to the legal risk
which is natural in such sports or events. The consent is not merely to the physical
risk, but to the legal risk as well. Consent may be express or implied.
This maxim is subject to a number of exceptions:-
1) The game or sports or the operations must not be one which is banned by law.
Football, Cricket, Hockey etc. are lawful games. However, Boxing with open
fists, duel with poisonous swords are legally prohibited. Similarly notoriously
dangerous processes in, cinema shootings. In such cases the maxim does not
apply. The' injury may be sustained by the persons who are participating in the
games or by the spectators or by third parties.
2) The consent must be free and voluntary. If consent is obtained by fraud it is no
consent. In a case a music teacher obtained the consent from his pupil

fraudulently to improve her voice and seduced her. Held: Music teacher was
liable.
3) Knowledge does not necessarily imply consent. The test of consent is objective,
for the rule is not Scienti (Knowledge), but Volenti non fit injuria. This is evident
from two leading cases:
Thomas V. Quarter Maine:
In this case, Thomas, working in a Brewery, was removing the top roof of a boiling vat.
But the lid came off suddenly and he fell into another vat containing scalding liquid and
was injured. It was held that the damage was accidental to the legal act and hence the
defendant was not liable. This was a wrong decision. The error was corrected in the
leading case:
Smith V. Baker:
In this case a crane was jibbing from one place to another. The plaintiff p had no notice
of it but had the knowledge of jibbing work being carried on by D. He knew the possible
risk, involved, but was not warned as to when the jibbing work commenced. A stone
glanced off from the crane and hit P who was injured. The House of Lords held that D
was liable: "Mere knowledge" was not sufficient according to the court.
4) Negligence - Cases of negligence are exceptions to the rule.

In Dann V. Hamilton, P a lady passenger had knowledge that D who was
driving a Taxi, was under the influence of drink. There was an accident due to
negligence of the driver and P was injured. Held: D liable.
5) Rescue cases: - In circumstances where a person goes out to rescue another,

the maxim does not apply.
The leading case is Haynes V. Harwood. In this case a police man P darted
out from his police station to stop a van, run by horses without a driver, in a
crowded street. The defendant D had left the van unattended on the highway
and the horse had bolted when some boys threw stones at the horse. The
police-man went to rescue and to stop the horses, but was seriously injured in
this process. Held : D liable.

3.2 Inevitable accident:
Accidents Are Of Two Kinds:
i) Act of God (Vis major) and

ii) Inevitable accident.
In Act of God there is the operation of natural forces so unexpected that no human
foresight or skill could reasonably be expected to anticipate. In inevitable accident,
the accident is not avoidable by any such precautions as a reasonable man doing such
an act then and there could be expected to take.
Inevitable accident is a defence recognized in law. Hence, the defendant may set up
a plea and prove that act was beyond a reasonable man and hence no liability would
arise.
Leading Cases:
a) Nitroglycerin case: In this case Nitroglycerin packed in a box was sent through a
common carrier. As there was some leakage, the servants of the carrier opened the
box in the premises of P with a view to preventing the leakage. There was an explosion
resulting in damage to the premises of P. P sued for damages. It was held that the
defendant had taken all precautions and that he was not negligent. The defendant did
not know the contents of the box and had no knowledge also. The accident was
beyond the standard of a reasonable man. Hence the defendant was held not liable.
b) Fighting Dogs case: In this case the dogs of P and D were, fighting. D was beating
with a stick to separate them. P was the onlooker. Accidentally D hit P in the eye
resulting in a serious injury. It was held: D was not liable as there was no negligence.
The hit was inevitable and could not be prevented (Brown V. Kendal)
c) Dog and Motor-car Case: A dog, quiet and docile, had been put by D in his motor
car which had been parked on the road side. P was walking along- side the road. The
dog jumped, barked and smashed the window glass pane. A splinter entered the eye
of P causing injury. Held this was inevitable accident and D was not liable. (Fordon V
Harcourt)
3.3 Act of God: (Vis major)

This is a circumstance where the injury is directly due to certain natural causes. There
would be no human intervention, and no human foresight could visualize the act
10 | P a g e - Dr. Avani Mistry

thereof. In such a case the primary reason is traced to nature or to God. No liability
arises.
Nichols V. Marsland: The natural stream of a river had been dammed up. An
extraordinary rainfall came and broke the embankments and water escaped and
destroyed 4 country bridges for which the court held that D was not liable. Such a
rainfall was an extraordinary act of nature which nobody could reasonably expect to
happen.
Act of God is a question of fact and must be established. In Greenock Corporation

V. Caledonian Railways, the corporation built a padding pool for children, by
deviating the natural flow of the stream of water. Owing to extraordinary rainfall, the
stream overflowed. Water entered the property of P and damaged it. It was held that
though rainfall was an act of God, the deviation of the stream was a human intervention
and hence the corporation was liable. The contention of act of God as a defense was
rejected.
Lightning, earth quake, cloudburst, tempest, hurricane, snowfall, frost etc., are acts of
God. In Noble V. Harrison a branch of a tree fell on a car and the car was smashed. It
was an act of God and hence the owner of the tree was not liable. In another case, a
Tiger had been tied, in the premises of a circus, with iron chains. A lightning struck the
chain. As a result the chain was cut off and the tiger escaped. It went to the nearby
village and killed a person. This was an act of God and the circus owner was held not
liable.

CHAPTER 4
NERVOUS SHOCK
Nervous Shock is a personal injury to the nerve and brain structure of the body and
hence damages may be recovered. Mental shock is a shock to the moral or intellectual
sense of a person. Such a shock may be caused by the defendant’s acts or words
without any physical injury or impact. No action lies for mere mental anguish, feeling
or distress. But, if the shock is factual and real then "True nervous shock is as much
a physical injury as a broken bone or a torn flesh". The defendant is liable.
Two things are to be established:
1. The defendant must owe a duty to the plaintiff, and
2. The plaintiff must be within the area of potential danger or
Dangerous zone created By the defendant. If one of these is not established the
plaintiff fails. The leading cases are:
a) Bourhill V. Young (Fisher -woman's case)
b) Wilkinson V. Downton (Grey hair case)
c) King V. Phillips (Car backing case)
d) Hambrook V. Stokes (Unattended Lorry case)
e) Owens V. Liverpol Corporation (Mourner's case)
f) Dulie V. White (Horse Van running to a public house)
g) Chadwick V. British Rly. Board (Rescue in Rail disaster)
Bourhill V. Young
P a fisherwoman, when she got down from a tramcar, the driver was helping her
putting a basket on her head. Y a motor-cyclist negligently collided on the main road,
against a car and died. P did not see the accident but only heard the collision. The
body of Y was removed. The tramcar proceeded on its way. P while crossing the road
saw the blood on the road and suffered a nervous shock. She later gave birth to a still
born baby and sued Y's representatives for nervous shock.
Held: Not liable. Reasons: 1) Y did not owe a duty to the fisherwoman,

2) It is no doubt true, she was within the danger zone created by Y but, as both
conditions are not fulfilled, P failed, i.e., Y was not liable.
King V. Phillips.
D was negligently backing his car. He dashed against a tricycle rider boy. The boy was
slightly injured but the tricycle was damaged. The boy's mother heard the screaming
of the boy; saw through the window the damaged tricycle but not the boy. She suffered
a nervous shock. Held, D liable.
Wilkinson V. Downton.
D, as a practical joke, reported to W, that W's husband was smashed in an accident.

On hearing this, W suffered a shock and later her hairs turned grey. Held, D liable.
The reasons are:
i) D had a duty to W. By giving false news, he has committed a breach, and

ii) W is within the danger Zone created by D.
Owens V. Liverpool Corporation
In a funeral procession, a few mourners were carrying the hearse. The tram car of D,
negligently dashed against the hearse damaged it and the coffin was overturned.
Seeing these four mourners, who were the relatives of the deceased, suffered a
nervous shock. Held D liable.
Hambrook V. Stokes
D's driver had left unattended his lorry in running condition, at the top of a steep road.
P's wife W, who had accompanied her children to see them off to the school, left them
near the bend of the road and was returning. Just then, she saw the lorry running
towards her child. She was frightened for the safety of her children.
A bystander informed her that a child (answering the description of her child) was
injured. She suffered a nervous shock and later died. Held D was liable.
i) The shock was caused by what W saw with her own eyes; W could not see her
child round the bend when the lorry was coming down violently. The assumption was
that the shock was due to this situation created by D.
ii) The fear for children's safety is not remote and in the circumstances D owed a duty
to her. There was negligence, as the lorry was unattended.

CHAPTER 5
STRICT LIABILITY
Strict Liability Ryland V Fletcher:
The principle of strict liability has its origin in the leading case Ryland V. Fletcher.
In this case B, a mill owner employed independent contractors who were

competent, to construct a water reservoir for the purpose of his mill. In the course
of construction the contractors came across some old shafts and passages on B's
land. They did not block them up, but completed the construction. When the
reservoir was filled with water, water gushed through the shaft and flooded the mines
of A.A sued B. The court held that B was liable on the ground of "Strict liability".
Blackburn J held we think that, the true rule of law is that 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”.
This is the rule in Ryland V. Fletcher. In this case, B was not negligent although the
contractors were negligent. Still under the rule of strict liability B was held liable.
Scope of the Rule:
This decision laid down a new principle which became the subject matter of great
importance in later years. It is considered as a starting point of the liability wider than
what it was before the decision of the court. This rule has been extended to a large
number of cases. Eg. Escape of fire, gas, explosives, Electricity, Oil, vibrations, Bad
fumes etc. Here escape is necessary otherwise there is no liability. To apply the rule
there must be a personal injury sustained by the plaintiff.
In Shiftman's case the plaintiff was injured as he was struck by a falling flag pole
belonging to defendants. The rule was applied and D was held liable. If the flooding is
due to natural cause, as in the case of gravitation then the defendant will not be liable.
If a person grows poisonous trees and his neighbor’s horse happens to eat the leaves
over the compound and die, the defendant would be liable [Crow burst V. A.B. Board]

The question is whether the things are dangerous or not. Justice Blackburn stated that
if anything is stored which is likely to do mischief then the liability arises. Normally
water is not dangerous. But, in Rylands V. Fletcher, that was the main thing for the
injury. Hence, the thing here need not be dangerous by itself.
Exceptions:
1. Consent of the plaintiff: If the plaintiff has given his consent the strict liability rule
will not apply but 'Volenti non-fit injuria' applies. Hence, the defendant will not be liable.
In a leading case, Peter V. Prince of Wales Theatre, A took a lease of a theatre which
had been fixed with pipes with running water to be used in case of fire hazard. Due to
frost there was leakage in the pipes resulting in the damage to the property of P. P
sued D the owner. The court held D not liable as there was consent of the plaintiff.
2. Common Benefit: If source of danger is for the common benefit of both the plaintiff
and the defendant, the defendant is not liable. In Car stairs V. Taylor, B was in the first
floor and A was in the ground floor as a tenant. Water from the roof collected in a box
and was discharged out through a pipe. A rat gnawed a hole in the box and water
leaked out and damaged the goods of A. Held B not liable. The reason was that the
arrangement was for the common benefit of both the parties.
3. Act of Stranger: If the escape of a thing is due to the act of stranger, the rule will
not apply. In Richards V. Lothian, a stranger deliberately blocked up the waste pipe of
a lavatory fixed in the premises of D. This caused flooding the premises of P. P sued
D. Held, the defendant D was not liable as the act was due to a stranger.
4. Statutory authority: Sometimes the law made by parliament or State Legislature

excludes strict liability. In Green V. Cheisea Water Works Company, the Parliament
had authorized the company to lay the main pipes. The pipes burst flooding the
premises of P. It was held that the company was not liable, (of course, the act should
not be due to the negligence of the defendant).
5. Act of God: It is a general defense and may be set up to establish that the escape
was due to some natural cause which was beyond the control of the defendant.
6. Default of the Plaintiff: If the injury is due to the default of the plaintiff then there
is no compensation. In a decided case, the plaintiff teased a Chimpanzee in a zoo and
the animal caused injury by biting the hand of the plaintiff. Held the plaintiff alone was
responsible and the defendant was not liable.

The modern law has extended this principle of liability to various circumstances and
situations. Escape of sparks from railway engine, escape of fire from one house to
another has been dealt with at length. In recent years, the liability is extended to
nuclear installation where Radio active substances cause hazards to individuals.
5.1 Scienter’s Action:
Means "Action when there is Knowledge". This is the principle applied in respect of
animals. Animals are broadly classified in to two categories.
1. Ferae naturae and
2. Mensuetae naturae.
Ferae naturae means ferocious animals which are by nature Ferocious. The law
relating to this, under the extended meaning of Ryland V. Fletcher, is that the very
bringing and keeping of such animals is prohibited.
Mensuetae naturae means domestic animals which are by nature docile and
obedient. But, they may have a tendency to become ferocious under some
circumstances. The owner may or may not know the dangerous propensity of the
animals. If he does not know the propensity, he is not liable in tort. However if it is
possible to establish that the defendant had the knowledge of the dangerous
propensity of the animal, the defendant becomes liable under "Scienter’s Action".
In respect of ferocious animals like Lion, Tiger Chimpanzee etc., the very bringing is
prohibited because the experience of human beings shows that these animals like
Dogs, Cats, Cows, Bullocks, Donkeys, Horses, etc. are not by themselves dangerous
to human society. But the domestic animals may develop a propensity to cause harm
or injury and the owner is liable if he has the knowledge of this propensity. In a number
of cases decided, the Courts have held that in order to constitute a tortious liability it
must be established:
1) That the animal was savagery
(2) That the defendant knew or had knowledge of the tendency of his animal.
In Hudson V. Roberts: The bull of Roberts gored Hudson on seeing in his hands a
red hand-Kerchief. Held Defendant liable as 1) the animal had so attacked others
many times previously 2) that defendant had knowledge of it.

In Jackson V. Smithson: The facts were that one person by name Catherine was
attacked by a ram, which goaded her and threw her down. Held, defendant liable as
he had knowledge of the propensity of the animal.

CHAPTER 6
VICARIOUS LIABILITY
Origin and Meaning:
This concept makes one man liable for the acts of another because of certain
relationships like Master and Servant, Parent and children etc. Originally it came from
"Quit facit per alienum facit per se" (He who does an act through the instrumentality of
another does it himself). This rule was inadequate to explain the reason. Later the
"General command theory” was put forward and then “particular command theory".
None of these was satisfactory and the modern theory is that the master is liable
because he is a substantial fellow or authority. As Winfield points out this theory is
based on "Social convenience and rough justice".
'Servant' and independent contractor distinguished: The Servant is a person who

works according to the instructions of the master. The master can, not only order him
to do an act but can also control how it should be done. The servant works under the
thumb of the master. The master has full powers to control the acts of the servant. He
has the powers of removal also. He is different from an independent contractor who
undertakes to do a piece of job according to the requirements of the employer. The
independent contractor is not under the control of employer. Hence, the employer is
not liable for the acts of the independent contractor.
Liability of the Master: The master is liable for the acts of the servant, if the acts are
done within the course of his employment otherwise, he will not be liable.
"Within the course of employment" means:
(i) Doing an authorized act
(ii) Doing an authorized act in an unauthorized manner and
(iii) Doing acts which are incidental thereto.
The act of the servant must fall into any one of the above, then only the master
becomes liable. Broadly speaking the master is liable for carelessness, mistake and
willful wrong doing of the servant. Sometimes he is liable for the criminal acts of the
servant.

Carelessness of the Servant: This is the most common kind of wrong which is
generally due to the negligence of the servant. The intention of the servant is not
material. If the servant is acting in the course of his employment, then the master
becomes liable, but if the servant is on a frolic of his own then the master is not liable.
The leading case is Century Insurance Co. V. Northern Ireland Road Transport. In
this case, the driver of a petrol lorry was transferring petrol from the lorry to the tank.
He negligently struck a match to light a cigarette and threw it on the floor. This caused
a conflagration and an explosion. The property of P was damaged. The defendant
master was held liable for the careless act of the driver, as the act had been done in
the course of his employment. "Lighting a cigarette was an act of the servant for his
comfort and convenience". The act was innocent, but was a negligent act of the
servant, and hence the master was liable.
Mistake of the Servant: Here the servant is a misguided enthusiast.
The leading case is Bayley V. Manchester Railway. The porter of the defendant
Railway Co. violently pulled out from a train P who had a ticket to go to some
destination. In fact, the porter had mistakenly taken P to be going in a wrong train. P
sued and the Railway authority (master) was held liable.
In another case the servant of D suspected that sugar was pilfered by a boy from the
wagon and he struck the boy, who fell and a wheel of the wagon went over his foot. D
was held liable.
In another case a petrol bunk servant under a mistake, as to payment assaulted a car
owner P who had taken petrol. The servant did not know that P had already paid for
the petrol. The master was held liable for the act of the servant.
Willful wrong of the servant: Here there are two rules.
i) The act of servant is still in the course of employment even if it is forbidden by the
master.
ii) It is not outside his employment if he intends to benefit himself, though not his
master.
Limpus V. London General Omni -Bus Company: The driver had printed
instructions not to race with or obstruct other buses. The driver did not observe this

and caused a collision. His master was held liable because this was an unauthorized
manner of doing an authorized act.
The Beard V. London Omni-Bus. The driver brought the bus to a terminus and went
out for breakfast. In the meanwhile the conductor drove the bus for the next journey.
In so doing he dashed against and caused injury to P. P sued. It was held that the
master was not liable as the conductor was not in the course of employment when he
was driving the bus.
In another case, the driver, had printed instructions not to give lift to any unauthorized
person. The driver violated it, gave lift to P and there was a collision resulting in the
death of P. It was held that the master was not liable for the act of the driver.
In Lloyd's Case, D was a firm of solicitors. It had employed a clerk to do its work. P a
widow was the owner of some cottages. She went for professional advice and the clerk
asked her to execute documents, which she did. Here he had conveyed cottages to
himself. The court held that D the master was liable for the willful wrong doing of the
servant clerk.
Criminal acts of the servant: The general rule is that only in some cases master is
liable. In Morris V. Martin, P gave her fur coat for dry cleaning to X who handed it over
to D. The servant of D sold it away. It was held that under the circumstances D was
liable for the criminal act of the servant. The master is not liable except in some cases
where the act amounts to fraud or theft or assault.
The other cases are:
1) Crood V. Durbyshire.
2) Blanton V. National Coal Board.
3) Dyer V. Munday.
6.1 Independent Contractor:

An independent contractor is a person appointed by the employer to turn out a piece
of job. He is different from a servant in as much as a servant is a person who works
under the control and supervision of the master. For the acts of independent contractor
the general rule is that the employer is not liable. There are a number of exceptions.
These are the non-delegable duties.

According to Winfield the question is always whether the damage is caused due to the
employer's breach of duty. The duties of the employer are divided into delegable and
non-delegable. This means, the non-delegable functions must be performed by the
employer himself. But if he delegates such a function to an independent contractor,
the employer himself becomes liable.
There are a number of non-delegable duties:
i) Delegation may be a breach of duty itself and the employer may be negligent in
giving instructions or information to the independent contractor. In a case, a gas
company had no authority to interfere on the Highways. Independent contractor's
servant negligently left a heap of stone over which the plaintiff fell and was injured.
Held, the employer was liable. (Ellis V. S. G. Co.)
ii) Obligations of the employer are to provide, a competent staff of men, adequate
material and a proper system of effective supervisor if he does not follow these, the
employer becomes liable. '
iii) Operations on or adjoining the highways: In Tarry V. Ashton there was a over-
hanging lamp of D on the foot way. D appointed independent contractor to repair who
did it negligently. The lamp fell on P a passer-by. It was held that the employer D was
liable.
In Grey V. Pullon the defendant D had statutory authority to make a drain from his
house to a sewer across the road. He appointed independent contractor to cut
trenches, who did it but negligently filled it up. The plaintiff P a passenger was injured.
D was held liable.
iv) Case of strict liability: The rule in Ryland V. Fletcher is applicable in respect of
bringing and storing of items which cause injury when they escape. In such case the
employer is liable.
v) Cases of statutory authority: The recent enactments have fixed the liability of the
employer under the Factories Act, Workmen's Compensation Act etc.
In Padbury’s case, D employed a subcontractor to put casements to the windows. In

so putting, an iron tool which had been kept by the servant on the window sill, fell and
injured P on the street. P sued D. The court held that D was not liable as the tool was
not placed in the ordinary course of doing work. There was only a collateral negligence
of D.

vi) When the employer personally interferes and gives directions to the independent
contractor the employer becomes personally liable.
6.2 Joint Tort-Feasors
When two or more breaches of legal duty by different persons result in a single injury
to the plaintiff- P, then the two or more persons are called joint Tort Feasors. According
to Lord Justice Bankers "Persons are said to be Joint tortfeasors when their shares in
the commission of tort are in furtherance of a common design".
In Brook V. Bool: Two men were searching for a gas leak. Each applied naked light
to the gas pipe in turn and one of them caused explosion. They were held to be joint
tort feasors. This is different from a case where two ships negligently collided and later
dashed against another vessel negligently. This is also different from a tort committed
by a child under the directions given by the parents.
Contribution: Both the joint tort-feasors are liable in tort. But, the plaintiff can claim the
amount in full from one of them. Question arises in such cases whether one tort-
feasors may claim indemnification from the other.
In Merry Weather V. Nixon. A and B jointly damaged the machinery in C's mill. C
sued them jointly and got compensation which he recovered from A. Now A sued B
for half the amount which he had paid. It was held that A could not recover from B.
This decision has been reversed by the Parliament in England in the Law Reforms Act
1935. According to this one tort-feasors can recover his contribution from the other
tort-feasors. Hence he is entitled to be indemnified.

CHAPTER 7
DEFAMATION
Defamation is the publication of a statement which reflects on a person's reputation

and which tends to lower a person in the estimation of right thinking members of
society generally, or, which tends to make him shun or avoid that person (Winfield).
This definition is wider than those, which define, defamation to mean the publication
of a statement which tends to bring a person into hatred, contempt or ridicule.
Imputations of insincerity or insolvency etc., which may arouse only sympathy or pity
in the minds of reasonable people, are also covered by the above definition.
7.1 Essentials:
The statement or words must be:
i) False
ii) Spoken (slander) or written (libel)
iii) Defamatory and
iv) Published.
i) False: The words used must be false. In fact, truth is a clean justification. It must be
shown that the imputation was false and malicious.
ii) The words may be spoken as in slander or may be in writing i.e., in a permanent
form as in libel. Any writings, publication in a newspapers, sky writing, cinematograph
film, etc., are covered under libel. The leading case is Youssoupoff V. M.G.M.
Pictures. The defendant D, produced a film named "Rasputin, the mad monk". In that
film, one princess "Natasha" had been raped by Rasputin, the mad monk. The princess
Irina of Russia, the wife of prince Youssoupoff (plaintiff) claimed compensation on the
ground that it was clearly understood that the reference was to prince Irina. The jury
awarded 25,000 pounds as compensation and this was confirmed by the Court of
Appeal.
iii) Statement must be defamatory and refer to the plaintiff.
The test is whether the words used tend to lower the plaintiff in the estimation of the
right thinking members of the society generally (Winfield). If the words expose a

person to contempt, ridicule or hatred or injures his profession or trade, or makes
others shun or avoid his company, then the words are defamatory e.g. imputation of
unchastity to a woman.
The plaintiff must prove that the defamatory words have a reference to him. Intention
is not material. If the reference is to a Class or group of persons, then the plaintiff must
prove that the reference is to him. A writes that "lawyer are thieves", no particular
lawyer can sue (Eastwood V. Holmes), But, when words have a latent meaning or a
double meaning (pun), then it is defamatory. This is called "Innuendo".
The words must be published: publication is an essential requirement. Whether a

statement tends to lower a person's reputation is decided by the standard of a
reasonable man.
Publication means publishing a particular item of news or information to a person,

other than the person to whom it is addressed.
1. If A writes to B, defaming B and sends the letter by registered post, there is no

publication and therefore A is not liable.
2. If A writes a post-card defaming B, and sends by post, there is publication if an

inquisitive postman reads and publishes. A is liable in such a case. (Robinson V.
Jones)
3. If A dictates to his steno defaming B and if the steno publishes it, there is publication.
4. In Huth V. Huth, A sent a defamatory letter in an unsealed cover to B. B's butler,

without authority opened and read it, held, that there was no publication as B had no
authority to see.
7.2 Differences between slander and Libel.
Libel:-
1. The statement must be in a permanent form, Broadcasting of words comes under

libel. Pictures, statues, effigy writing in any form, Printing marks or signs, sky writing
by airplane etc. come under libel. T V relay is libel.
2. Libel is generally addressed to the eye.
3. Libel is actionable per se. (by itself) Libel tends to provoke breach of peace. It is a
crime as well as tort in England and India.

Slander
1. Slander is in a temporary form. It is in words or gestures. Manual languages of the

deaf and dumb, mimicry, and gesticulations etc., are examples. Slander is addressed
generally to the ear.
2. Slander is not actionable per se.
Hence, special damage must be proved i.e., Economic or Social loss to the plaintiff
must be proved. Slander is not a crime, in England However on some occasions words
may be seditious or blasphemous and hence may become a crime, but according to
Sec. 499 I .P.C. it is a crime, in India.
7.3 Slander is not actionable per se.
This means that in cases of Slander special damage must be proved. Libel is
actionable per se. As libel will be in a permanent from, it is likely to do more harm to
plaintiff. Special damage means actual damage sustained by the plaintiff. The plaintiff,
must prove loss of money or some temporal or material advantage estimable in money
which he has lost. Mere loss of society or consortium of one's friends is not sufficient.
If a person is excluded from a dinner party, because of slander he sustains a loss

material and temporal. Hence, there is special damage and compensation can be
recovered. If there is no special damage there will be no compensation in slander.
Hence, the general rule is that slander is not actionable per se. But, this is subject to
the following exceptions:
1. Imputation of Criminal offences punishable in nature.
Hailing V. Mitchel. M was a hotel owner. H was a hair dresser. M said to H "You were
with a crowd last night". "I cannot have you here. You are to be turned out". The court
held that the words did not amount to an imputation of an offence.
Jacksons V. Adams:
P was in possession of parish bell-ropes. D told P "Who stole the parish bell-ropes;
you rascal". As the possession of bell-ropes was with P stealing by P was not possible
and hence, there was no imputation of an offence.
2. Imputation of contagious or infectious diseases which are likely to make others

avoid the company of the plaintiff.

3. Imputation of unchastity or adultery to a woman.
4. Imputation of unfitness, dishonesty or inefficiency in a profession trade or business.

Imputation of ignorance of law to a lawyer or incompetence to a surgeon, or cheating
to a trader or insolvency to a businessman is examples;
Bull V. Vasquez, B was an M.P. and was in army service. He had come back on
leave. V said of him that B was sent home for taking much drinks. B sued B.
Compensation was granted. There was imputation of drunkenness.
7.4 Defenses open to the defendant are:-
Justification: Truth or justification is a very good and complete defense. Defamation

is the injury to a man's reputation and if there is truth in the statement, then there
is no defamation. The person is not lowered, but is placed to his proper level.
The substance of the statement must be true, not merely a part of it. "How, a lawyer
treats his clients" was an article which dealt with how a particular lawyer was treating
his client. Held the article was in-sufficient to justify the heading. (Bishop V. Lautiar)
ii) Fair Comment: The comment must be on a matter of public interest. Honest criticism
is essential for the efficient working of democratic public institutions. The Government
and its institutions may be criticized.
Contents:
1. The matter commented must be of public interest. The Government and its
various wings and establishments and public institutions may be criticized.
Novelists, Dramatists, Musicians, Actors, etc., may be criticized.
2. Fair comment must be an expression of an opinion and not an assertion of facts.

Plaintiff was advertising in papers as a specialist in E.N.T the defendant
commented on him as "a quack of the rankest species". Held: that it was a
comment, the Court always looks to the merit of the comments.
3. The comment must be fair: Mere violence in criticism by itself will not make the
statements unfair.
4. Comment must be malicious. Even fictitious name may be used. That by itself
will not render the statement unfair.

Innuendo:
In case of defamation one question that may come up for consideration is the actual
meaning of the words used. Sometimes words may have double meanings (pun)
or may be ambiguous but courts will be interested in finding out the exact meaning
that is to be attributed under the circumstances. It is for this reason that the
court invokes the concept of Innuendo i.e. to find out the inner meaning of the
words used by the author of the defamatory words.
Mrs. Cassidy V. Daily Mirror.
The facts were that the defendant published in his newspaper that 'Mr. Cassidy
and Miss. K are engaged', In fact Mr. Cassidy had married Mrs. Cassidy. The wife
Mrs. C sued the publishers. Her contention was that on seeing the news item, her
friends in the women’s club and elsewhere shunned her company and looked down
upon her. The court therefore looked into the inner meaning of the publication. In
effect, it meant that Mrs. C was not a legally wedded wife of Mr. C i.e. she was a
kept mistress of Mr. C. The court awarded compensation.
Tolly V. Fry and Co. (Chocolate case)
In this case, P was a golf player and a member of the golf club. He was an amateur
who became very popular. The defendant company D, published his photo with a
chocolate protruding from his pocket, inscribed 'Fry and Co.
Chocolates'. The Golf club felt that the plaintiff had violated the club rules and that
he could be asked to resign. P sued the company for compensation. Court applied
the principle of Innuendo and held that the real meaning was that if P by
Consent sell his name as Golf player he could be terminated from the golf club.
Hence D was held liable.
i) Privileges: Privileges are of two Kinds: absolute and qualified.
Meaning of privileges: They are occasions on which there ought to be no liability

for defamation. This is because the public interest outweighs the plaintiff’s right to
his reputation.
Privileges are absolute when the communication is of paramount importance. Such

occasions are protected, however malicious or outrageous they may be. The
defendant may make statements even if they are false.

Examples for absolute privileges:
• Statements made in Parliament or Legislature.

• Reports, papers, etc., of either House of Legislature.
• Judicial proceedings.
• Communications between solicitor (advocate) and his client.
• Communication between one officer and a foreign officer.
Statements are qualified when the person makes the statement honestly even
though they are false
1. Fair and accurate reports of Parliamentary debates, and proceedings.
2. Fair and accurate reports published in newspapers. Similarly broadcasting.
3. Statement made in pursuance of duties. A reports to B. about the conduct of C.

If it is A's duty to report and if he is to protect the interest of B, he may make
statements about C.
4. Where A and B are having a common interest to be protected. Statements made

about the plaintiff P between A and B themselves are protected.
5. Statements made in self-protection and self-defense to procure redress of public

grievances is protected.

CHAPTER 8
ASSAULT AND BATTERY

8.1 Trespass to person:
Assault and Battery are two forms of Trespass to person. Battery is the intentional
application of force to another person. Assault is an action of the defendant which
causes to the plaintiff a reasonable apprehension of the infliction of a battery on him
by the defendant. (Winfield)
To. Throw water at a person is assault. It is battery if a drop falls on him. Pulling away
the chair when a person is about to sit is assault. It becomes battery when he touches
the ground. Similarly, flashing light with a mirror is assault. It is battery when the rays
impinge on the plaintiff.
The word force has a defined scope in the context of assault and battery ; infliction of
light, heat, electricity, gas, odour and similar things which may be applied to such a
degree as to cause injury or personal discomfort, amounts to force as required in
battery. As Chief justice Holt, rightly said the least touching of another in anger is
battery (Cole V. Turner). Hence spitting a man on his face is assault, but, if any drops
fall on him, it is battery.
1. Pointing a loaded pistol is assault. Pointing an unloaded pistol is no assault. In R.V.

St. George, it was held that pointing an unloaded pistol at dangerously close quarters
was assault. There was a reasonable apprehension of the impact of the gun. Hence it
was assault.
2. In Stephens V. Myers: P as Chairman was in a meeting. D, a member became

angry and vociferous. Resolution was passed.
3. To remove him from the meeting. Thereupon D moved with closed first towards the
Chairman, but was stopped by a person who was sitting next to D. Held that there was
assault.
When a person standing on a Railway platform shows his fist to the plaintiff who is in
moving train, there is no assault. Awakening a pupil in a class-room by another student
while the class is going on, is battery. But if the teacher wakes him up there is no
battery.
Similarly in the case of sermons, to touch a person with the least force, to call attention,
is no battery, if this is done by the Bishop. There are hundreds of instances of assault
and battery in the day to day affairs of human beings. But because of the good humour
of mankind they do not go to the Courts. Perhaps the other reason is De minimis non-
curet lex meaning law does not take cognizance of trifles.
Defenses:
For assault and Battery the following are the defenses open to the defendant.
i) Self Defense: This is a natural right recognized by law. A person may defend
his person, his family or his property from any trespass. Of course, the physical
defense must be proportionate to the injury received. Similarly, a person may
inflict injury to defend his property.
ii) Right to Expulsion: The defendant is entitled to forcibly expel the trespasser
who enters by force or otherwise without permission. Of course, the defendant
should not use more force than what is necessary.
iii) Right to retake property: Use of force as is 'necessary' under the
circumstances is valid and law allows the retaining of the land or goods using
force.
iv) Volenti non fit injuria: In lawful games like cricket, football, boxing etc. any
injury received is covered under volenti non fit injuria. This is a good defence to
the defendant.
v) Legal Arrest or search: Under the law the police officer is empowered to arrest
a person or search premises and in such a circumstance, he may use so much
of the force as is necessary according to law.
vi) Force used under authority: Parents, guardians, supervisors of trainees,
captain of ship etc. have some inherent rights to "correct" the persons under
their control. Such persons may validly defend themselves, provided the force
used was reasonable and necessary.

CHAPTER 9
FALSE IMPRISONMENT AND MALCIOUS PROSECUTION
9.1 False Imprisonment:
False Imprisonment is the infliction of bodily restraint which is not expressly or

impliedly authorized by law. False means erroneous (wrong). There is the restraint of
a man's liberty, when the person cannot freely go about at his own will .
There are two essentials:
i) Knowledge of the plaintiff about his imprisonment is not essential.
Merrings Case: Defendant D suspected M of stealing a Keg of Varnish. He asked two

police-men who went to M and brought him to the defendant. M was put in a waiting
room and the police were standing outside. Held: Though the plaintiff did not know
that the police were outside, this amounted to false imprisonment.
ii) The restraint must be complete:
In Bird V. Jones. The defendant wrongfully covered a part of the road on a Bridge;
put certain seats for spectators to see the regatta show on the river. P claimed over
the fence without paying, but was prevented by D. Held: D not liable because the
restraint was not complete. P could have taken the uncovered part of the road to go
to the other side.
Herd V. Steel Co: In this case, P, a mine-worker came down the lift at 9-30 A.M. to
the work-spot. As per rules he could go back at 4 P.M. using the lift. P was ordered to
do a different job which he wrongfully refused. P demanded to be taken up but was
prevented. He was detained for about 20 minutes. P sued D, the steel Company. Held:
D not liable as there was any false imprisonment.
Robinson V. Bui main ferry Co.: P paid a penny to enter a Wharf of C. P was to wait
until a boat came. He could take the journey on paying again a penny, to go to the
other side. However, P refused to pay. Held: D not liable as the toll of a penny was
reasonable and that D could prevent evasion of payments. There was no false
imprisonment.

9-2 Malicious Prosecution.
It is defined as the institution of Malicious case against another without reasonable or

probable case.
In Malicious prosecution the plaintiff must prove:
1. That the defendant prosecuted him in a Criminal court.
2. That the prosecution ended in favor of the plaintiff, i .e, he was acquitted.
3. That the prosecution lacked reasonable and probable cause.
4. That the defendant acted with malice.
5. That the damage resulted to the plaintiff.
Essentials explained:
1. There must be a prosecution by the defendant complaining against the plaintiff.

This means at least summons must have been issued to appear before the
court.
2. The plaintiff must prove that there was acquittal or discharge. If the plaintiff is
convicted he cannot sue for malicious prosecution. Similarly when the case is
withdrawn under a compromise, no suit lies for malicious prosecution.
3. There must be lack of reasonable and probable cause. In other words, it must
be proved that at the time the charge was made there was no reasonable cause
for the prosecution to proceed further. Objectively, the prosecutor must have a
case which he believed to be true. This is to be judged from the standard of a
reasonable man. Mere suspicion is not enough. Further, dismissal or acquittal
by the court will not create a presumption of malice, or reasonable cause. It
must be proved as a "Fact" that there was no probable Cause.
In Dr. Abarth V. North Eastern Railways: A sued the Railways for personal
injuries suffered by him in a Railway collision. He got a large sum as
compensation. The Railway Directors relying on information that Dr. Abarth
manufactured symptoms of injury of A instituted an enquiry. They found
sufficient ground against Dr. Abarth they prosecuted him, but he was acquitted.
Thereupon, Dr. Abarth sued the Directors for Malicious Prosecution. Held: Not

liable. Reason: The Directors had taken reasonable care and also had honestly
believed in the case.
4. Malice: This must be proved by the plaintiff. If the objective of the defendant is
vindictive or to tarnish the name of a person or purely personal or prejudicial, then
there is Malice.
5. The damage must be proved, that is, the damage of man's fame, or of the safety of
his person, or of the security of his property. There may be a moral stigma attached.
Eg., D prosecutes P for forgery but P is acquitted, thereupon P may sue D for
Malicious prosecution.
In Wyatt V. White: D noticed in P’s godown some sacks which had D's markings. He
prosecuted P. But, P was held not liable. Thereupon, P sued D, for malicious
prosecution. Held: There was reasonable cause for the prosecution to proceed and
hence D was not liable.
Damage to the plaintiff must be proved. Merely because there was an acquittal, the
plaintiff will not succeed in a suit for Malicious Prosecution. Plaintiff must show that he
suffered damage to his person, property or reputation.
9.3 False Imprisonment and Malicious prosecution Distinguished.

False Imprisonment Malicious prosecution
This is the wrongful (erroneous) restraint The defendant D Maliciously sets the
of P, the plaintiff without any legal Criminal Law in motion against the
authority. Here defendant acts wrongfully plaintiff P. There is the judicial officer
(Meering's case) who conducts the Criminal case by
issuing the process.
The defendant must prove that he had The plaintiff must allege and prove that
reasonable justification to detain the was no reasonable or probable cause to
plaintiff (Herd V. Steel Co. Robinson V. prosecute the plaintiff.
Balmain ferry Co.) Malice is not Material.
Malice must be proved by the plaintiff.

Otherwise, he fails (Dr. Abarth's case)

CHAPTER 10
DECEIT
Deceit is a false statement of fact made by A, knowingly or recklessly, with intent that
it shall be acted upon by B, who does act upon it and, thereby, suffers damage
(Winfeild).
In Peasley V. Freeman: The principle of Deceit was extended from contracts to torts.
The defendant assured that X was trustworthy to give a credit of some money. It was
false, p gave credit and suffered a loss and sued D. Held, D liable.
10.1 Essentials of Deceit.
• Representation as fact, of that which is false.

• Knowledge or Recklessness that it is false.
• Intention that the plaintiff could act upon the statements.
• The plaintiff should sustain damage.
1. False Statement of Fact: By silent representations A cow with some infection

or disease was sold in the market. P sued D. held: D is not liable if he did not
know the disease at the time of selling. In a case the court held mere silence
did not amount to deceit.
2. Promises: Mere promise will not amount to deceit. Scores of promises are
made which are never kept up.
3. Misstatement of fact: The Edginton V. Fitzmaurice, the company raised
debentures. It stated in the prospectus that the debentures money was to be
utilized to purchase vans. But in reality the money was used to pay off
outstanding loans. Held: Deceit.
4. Opinions: Mere opinions do not amount to deceit. These must have been
made with knowledge that the statement is false, or, the statement must have
been made with carelessness.
Derry V. Peek: A company was running trams using animals. Directors issued a
prospectus stating that the company had powers to use steam in propelling their trams.
In fact the grant to use steam was subject to the consent of a Board of Trade. Company
had believed that the consent of Board of Trade was merely a formality. But the

Board refused to give its consent. The company went into liquidation. Some
shareholders sued the company. Held: No deceit. There was an honest mistake in
viewing that the consent of Board was a formal procedure. A false statement made
carelessly and without reason to believe to be not true was "not fraud". This decision
is criticized by judges and Jurists.
Candler V. Crane: The defendant, an Accountant prepared accounts of the Company

and induced the plaintiff to invest money. B invested money. The company had given
a misleading picture, but the Court held that it was a mere careless misstatement.
Hence P failed. It was held that mere careless statements were not actionable unless
there was a contractual or fiduciary relationship.
Nacton V. Lord Ashburton: The error in Derry V. Peek was exposed in this case.
Here circumstances showed a duty to be careful. In the particular circumstance of
Derry V. Peek there was no duty to be careful. In this case, Solicitor, negligently but
without any fraud induced his client to release part of Mortgage security. Security
became insufficient and the plaintiff suffered. He sued the solicitor. Solicitor was held
liable.
Exceptions: Derry V. Peek is not applicable to:
1. Statutory provisions as in Companies Act. Eg.: in respect of prospectus, directors

and auditors are liable.
2 Cases of Estoppel.
3. Cases where there is a contractual duty to take care.
4. Cases where there is an Implied warranty of another in agency.
Rule in Hadley Byrne: As regards liability for careless statements the leading case is
Hadley Byrne and Co. Ltd., V. Heller and partners Ltd., P, an advertising agency,
wanted to know the trustworthiness of Easipower Company. It asked its bankers
about this. The Bankers referred to Easipower company's bankers. "Heller and
partners Ltd", who gave favorable reports. They had written as "confidential. For your
private use. Without responsibility on the bank or its officials". This was passed on to
Hadley Byrne, who relied on and allowed credits and suffered heavily when Easipower
Company went into liquidation.

Held: The Bank was not liable. The bank did not know to whom the information would
be passed on. Further, it had taken no responsibility whatsoever. Hence, not liable.
There was no deliberate misstatement to make it a deceit.

CHAPTER 11
CONVERSION
Conversion is any act in relation to the goods of a person which constitutes an

unjustifiable denial of his title to them. (Winfield)
11.1 Essentials:
• Wrongfully taking possession of goods.
• Abusing possession of them.
• Denying title or asserting one's right.
Taking possession: If A snatches the hat of B with an intention to steal it, it amounts
to conversion. In Foldes V. Willouby, A and his horses embarked on B's boat. A
dispute arose between A and B. B put the horse on the shore and went to the other
side with A. A claimed that B had committed conversion. Held: No conversion.
In Richardson V. Atkinson, D drew out some quantity of wine from cask of P, but
added water to fill up the cask. Held, D was liable for conversion.
Abusing Possession: A person may be in possession of goods of another as a

Bailee, Pawnee, and Trustee etc. If he abuses his possession by selling or disposing
of, he is liable for conversion. If A makes omlette out of eggs given by B for custody,
or if A makes a statue out of log of wood of B given for custody, there is conversion. If
a bailee abuses his possession e.g.: Carrier, using customer's goods for himself,
there is conversion.
Denying Title. Denial of title of plaintiff amounts to conversion. A let-out his land to B,
B had dumped some material C bought the land from A and used up part of the
materials. Held: C liable for conversion.

"Finder is keeping is a dangerous half truth"
The finder of goods has every right against all persons in the world except the real
owner. However, if the owner is not traced or if the owner makes no claim, question
arises as to the rights of the finder of goods.
In Armory V. Delamire: A Chimney sweeper found a jewel when he was weeping a

chimney. He gave it to S, servant of a goldsmith for purpose of valuation. S refused to
return the same. Held: Chimney sweeper was entitled. He had a better title than S.
In Water Co., V. Sharman: P appointed D to clean his pool. While cleaning, D found
two gold rings. The owner could not be traced. Held: P was entitled. Reason: For things
found on land, the presumption is that the owner is entitled, as he has custody over
In Bridges V. Hawkesworth: P a customer found a bundle of currency notes on the

floor of D's shop. The owner could not be traced. Held: P was entitled to the notes.
Reason: D was never in the custody of the currency notes, before they were found.
Hence the law relating to finding is that "The finder has a better title than all others,
except the real owner".

CHAPTER 12
NUISANCE
Nuisance is the unlawful interference with a person's use or enjoyment of land or some
right over or in connection with it. (Winfield).
The main principle is "use your property so as not to interfere with that of others"
(Sic utere tu et alienum non laedas).
Nuisance is of two kinds, private and public. Public Nuisance is a Crime. It materially
affects the peace, comfort and convenience of the people at large. Ex.: Obstructing
public highways, carrying on a prohibited trade causing annoyance to the public, etc.
In Soltan V. De, P was residing in a house next to the Roman Catholic Church. The
Church bell was ringing at all hours of the day and night. Held: that this was public
nuisance. An injunction was granted.
12.1 Difference between Public and Private Nuisance.
Public Nuisance Private Nuisance
A public right is violated. Private right is violated.
It is a crime. It is not a crime but tort only.
Special damage need not be proved to Special damage, is necessary. There

recover compensation Ross V. Miles. must be an unlawful interference.
Examples: Excessive playing of piano,
D caused obstruction on the P incurred
river. Radio, or obstructing cargo this
damage to his was sufficient special
light or air or access to water etc.,
damage to recover compensation.
Proving is not necessary.
To be filed through Advocate General Suit may be filed by the plaintiff.
12.2 Essentials of Nuisance.
1. There must be an unlawful interference.

This must be in respect of the use or enjoyment of land or of some right over or in
connection with it causing physical dis comfort to the plaintiff or some damage to his
property. E.g. Noise, smell, pollution of air or water. But in society some amount of
interference by sound, smell etc., is inevitable. The courts apply the standards of a
reasonable man and determine the degree of injury to the comfort or enjoyment of the
property. Up to a certain degree, interference is not actionable. (De minimis non curet
lex). Taking all the circumstances into consideration the court fixes the "Standard of
liability"
2. There is no liability for abnormal sensitiveness of a person or of the

property. The leading cases are: (The defendant is not liable in respect of
abnormal sensitiveness.)
i) Robinson V. Kilvert: D was in the ground floor, and was manufacturing paper
boxes. Just above D's room, P had stored sensitive paper. Due to heat used by D to
make boxes, the paper got spoiled. P sued D. held: P's paper was abnormally sensitive
in the circumstances. Hence, D was not liable.
ii) Heath V. Brighton: D's power station was making a buzzing noise. The church
complained that it affected the sermon. Held: as the noise never affected the
attendance for sermons there was no nuisance.
iii) Wagon Mound Case: Oil stored in Wagon Mound vessel escaped and spread to
over 600 feet away, where another ship P had been embarked. Welding operations
were going on ship P. The people there took care to test oil but continued welding
work. Fire broke out and the ship was damaged. Held: Not liable.
3. Malice: The question is whether, bad intention of the defendant is necessary

for nuisance. The answer is that Malice is not essential.
This has been answered in the leading cases:
Christie V. Davey : D became angry with the Music lessons given by P a Music
Teacher. P was living in a residence separated from D by thin wall. D interfered with
Music Lessons by whistling, Shrieking, beating trays, drums etc., Held : That an
injunction could be given to D to stop the Nuisance.
Hollywood Silver Fox V. Emmett: D intentionally fired guns and scared the silver
mixed during their breeding time, and caused great damage. P the owner sued for

nuisance, Held: There was Motive, compensation must be paid. Hence, Malice is not
essential but it is necessary to get more compensation.
4. Nuisance on the highway :
This is any act or omission on or near a highway, whereby the public are prevented
from freely, safely and conveniently passing along the highway.
1. Under common Law, the crown was not liable for nuisance on Highways, But this
has been changed under the Highways Act 1961 and the State or Department is liable.
In India, as per the National Highways Act 1956, the state is liable.
2. Projections over the Highways.
The law is strict in this regard. The person who creates a nuisance on the highway is
liable. Tarry V. Ashton: An overhanging lamp of D fell on the plaintiff who was walking
on the pavement. Held. D the defendant was liable. This was an interference on the
Highways and the rule of strict liability applied.
12.3 Remedies.
The remedies for private nuisance are (i) Abatement (ii) Damages and (iii) Injunctions.
a) Abatement: This means removal of nuisance. This is a private remedy without

going to the courts, e.g. Overhanging branches of a tree may be cut off, if they
are a nuisance. Further, to save the lives of individuals or for security reasons,
the nuisance may be removed. No notice is necessary.
b) Damages: The court determines to what extent there is diminition or reduction
of the value or utility of the property to fix the compensation. But some special
damage is to be proved.
c) Injunction: As per the specific Relief Act, temporary or permanent injunction
may be granted by the court depending on the circumstances of the case.

CHAPTER 13
CAPACITY
13.1 Capacity to sue and to be sued.
The general rule is that all persons are entitled to sue and to be sued in tort. However,
this rule is subject to several exceptions.
The legal capacity to sue or to be sued may be discussed under the heads.
(1) Convict
(2) Minor
(3) Married Woman and
(4) (i) State Sovereign (ii) Act of state
(5) Corporations and trade unions.
1) Convict
A convict may sue for torts to his person and property. In England, the rule was that a
convict serving the sentence could not sue; but this has been abolished in 1948.
Hence a convict may sue. This is the position in India also.
2) Minor: Right to sue.
The general rule is that an infant may sue, through his next friend, and there is no bar.
However, a child en vetre sa mere (in the womb) cannot maintain an action for injuries
sustained when in womb. In a case, W a pregnant woman was injured in a Railway
accident and later gave birth to a deformed child, held, that the Railway company was
not liable.
Minor may be sued in tort and he is liable. Minors have been held liable for assault,
false imprisonment, libel, slander, nuisance, injuries to neighbors etc. Minors cannot
take advantage of their minority in cases of deceit. A minor is not liable for violation of
contracts, but in tort he is liable.

The father becomes liable for the tort of the minor, if the son was acting on behalf of
the father or "in the course of his employment". Otherwise, the father is not liable. If a
father supplies an air-gun to his son and negligently allows him to fire at a person to
hit on his eye, the father is liable. (Newton V. Edgerley).
3) Married Woman:
i) Right to sue: Husband and wife are considered as one under common law in
England and hence a married woman could not sue without her husband. But, this has
been amended by the law Reforms Act of 1935. She may sue in her own capacity as
a feme sole. She may sue her husband. In Curtis V. Wilcox, W sustained injuries
caused by H's negligent driving of his car. W later married H but sued for damages,
Held, H liable.
ii) Liability of married woman: In England at common law husband and wife were to
be sued for the tort of the wife. She could not be sued alone. The Married Woman's
property Act has changed the above position and according too it, the wife could be
sued alone. Damages are payable from her separate property. The husband is not
liable for her torts.
In India, the position is the same under the Married Women's property Act. The Wife
may sue or be used for tortious obligations as a feme sole.
4) State.
The State is a legal person and can sue and be sued. It is vicariously liable for the
tortious acts of its servants done during the course of their employment. The injured
party may sue the State and recover compensation.
Historical sketch: In England, at common law the rule was that "the king can do no
wrong" and the king or his servants could not be sued. However, the Crown
Proceedings Act has fixed liability & hence the state may sue and be sued.
Before the Constitution, the Secretary of State was liable for tortious acts. (Govt. of
India Act 1935). In India, the constitution of India in Art. 300, lays down that the state
may sue and be sued.

Leading cases :
a) Peninsular and oriental Steam Navigation Co. V. Secretary of State

(1861) A servant of P, was travelling in a coach through the Govt's dockyard.
Due to the negligence of D's servants, a heavy piece of iron carried by them fell
and the horse of the coach was injured. P sued D. It was held that the
maintenance of the dockyard was a non-sovereign function, and hence, the
secretary of State was liable.
b) Rup Ram V. State of Punjab. P, a motor cyclist was seriously injured when
the driver of a P. W. D. truck dased against him. It was held that the Govt. was
liable. The Govt's argument that at the time of the accident, the driver was
carrying materials for the construction of a bridge and that this was a Sovergin
function and hence, the State was not liable, was rejected by the court.
c) State of Rajastan V. Mrs. Vidyawati. Vidyawati's husband died of an accident

caused by the Govt. driver who was driving negligently the Govt. Jeep from the
garage to the office. Vidyawathi sued the Govt. for compensation. Held, State
liable.
d) Kasturilal v. State of U.P. A was arrested on suspicion of having stolen gold.

Gold seized from him, was deposited in police Mal khana. A was acquitted. In
the meanwhile, the Head Constable had stolen the gold and escaped to
Pakistan. 'A' sued the Govt. for the return of the gold or for compensation.
Gajendragadkar J, held, that the State was not liable.
Reasons:
i) The police Officers were within their statutory powers.
ii) The Authority of the police in keeping the property (gold) was a 'Sovereign function’.
Held: Govt. not liable for the act done in the exercise of sovereign function.

Comment: This decision is not satisfactory as the concept of Sovereign function is
extended beyond limits. The Supreme Court itself has suggested that the remedy is
to make a suitable law to give protection to individuals in such cases. No such law has
been made so far.
Basavva V. St. of Mysore (1977): In a case of theft, property worth Rs 10,000/- was
recovered and kept in police custody. This was stolen from custody. The Supreme
Court held that payment should be made to the owner, who had claimed the property.
This is an improvement over Kasturilal's case.
Act of State.
This is an exercise of power by the Executive, as a matter of policy, in its relation with
another State or aliens. In such a circumstance, the State claims immunity from the
jurisdiction of the court, to decide. Such an act of the representative of the state may
have the authority of the state or the state may ratify such an act.
Secretary of state V. Kamachi Bai Saheba : The Rajah of Tanjore, an independent

sovereign, died leaving no male heirs. The East India Company declared that as there
were no male heirs, the Raj lapsed to the British Govt. The widow Kamachi Bai sued
the company. The Privy Council held that it was an 'Act of State' and hence, there was
immunity. Hence, she failed.
Buron V. Denman: P sued D, the captain of the British Navy for releasing the slaves
and burning their camps belonging to P. This act of D was ratified by the British Govt.
Held, this was an act of State, and hence, P failed. Exception: There is one exception.
There is no act of state between a sovereign state and its own subjects.
5. Corporations
Right to sue: A Corporation is a legal person and many sue for any tortious act like
libel, wrongs affecting its property or business, for libel of Corporation officials may
sue in their individual capacity.
i) Liability : The corporation may be sued and is liable for torts,

committed by its agents or servants, during the course of their employment.
The rule of vicarious liability applies, there were some doubts regarding
whether the corporation is liable for the 'Ultra Vires' act of its servants. The
general rule is that in such a case, the corporation is not liable. The leading
case is Poulton V. London Railway Co. the plaintiff p was arrested by the

station master of the corporation D. The reason was that P had refused to
pay, the freight of the horse. D had authority to arrest persons who did not
pay his fare, but not for nonpayment for goods or animals. Here D had acted
ultra vires (beyond powers) in arresting P for non-payment of freight. Held
D not liable.
In Pillai V. Municipal Council, P's dog was killed by the Municipality D, in destroying
stray-dogs. P sued Held, D liable the defense by D that it was an ultra vires act of the
servants was rejected.
ii) Trade Unions
In a leading case (Taff Vale Railway Co.) the House of Lords had held that the trade
unions could be sued for the wrongful acts of its officials. To counter this the English
Parliament, passed the Trade Disputes Act 1907. Which provided that the courts have
no jurisdiction to entertain suits against the trade union, its officials or members.
In India, under the Indian Trade Union Act 1926, a Trade Union, may or may not be
registered, if registered, it may be sued in its registered name. If not so registered one
or more members may be sued on behalf of the union. The regd. trade union and its
officers and members are exempted under Sec. 18 from certain torts, which are done
in furtherance or contemplation of a trade dispute.

CHAPTER 14
REMOTENESS OF DAMAGE
Meaning.
I. In law, the damage must be direct and the natural result of the consequence
of the act of the defendant. Otherwise, the plaintiff will not succeed. This is "In
jure non remota causased proxima spectatur" (In law the immediate, not
the remote cause of any event that is to be considered). The reason for this is
that the defendant is presumed to have intended the natural
consequences, but not the remote damage. It means then that the defendant's
act must be the 'Causa Causans' or the proximate (near) cause.
II. Novus actus interveniens (new act intervening) : the act and the consequences
are to be connected directly and the defendant will not be liable for Novus actus
interveniens and the consequences thereof.
Scott V. Shepherd (Squib case)
D threw a lighted squib into a crowd. It fell on X. who threw it further, It fell on Y who
threw it away. It fell on P, exploded and blinded one eye. Held, D was liable to P.
Though X and Y, had intervened, D's act was the 'Causa Causans'. The defendant
pleaded novus actus intreveniens but the court rejected this defense.
In Haynes V. Harwood, the unattended horse van of D started running as some boys
had thrown stones at the horse. The policeman who attempted to stop the horse was
injured. Held, D liable. The contention that the throwing of stones was an intervening
cause and hence D was not liable, was rejected by the court.
III. Direct damage. Two tests to find out direct damage.

a) The test of reasonable foresight.
b) The test of directness.
The test of reasonable foresight means that the liability of the defendant extends only
to those consequences, which could have been foreseen by a reasonable man. This
theory was rejected in 1921, and the second theory was applied in re Polemis and

Furnace Ltd. In this case, D chartered P's vessel to carry a cargo which included petrol.
Some cases were leaking and there were vapours of petrol. D's servants while shifting
cargo, negligently knocked at a plank which fell rubbing the wood and got ignited. As
a result the entire vessel caught fire and was destroyed. Held, D was liable. It was due
to the negligence of D's servants that the fire had broken out and hence D was liable
for all the consequences, even though those could not reasonably have been
anticipated. This theory was rejected in the Wagon Mound Case 1960. there is a return
to the old reasonable foresight test.
The Wagon Mound, an oil-tanker vessel, was chartered by D and had been mored at
Sydney (Australia) harbour. At a distance of about 600 feet, P had a wharf, where
repairs of a ship were going on. Due to the negligence of D's servants, oil spilt from
the wagon Mound, spread over to the wharf where P was making some welding
operations. P's manager stopped his welding work, enquired D whether he could
safely continue the welding. D assured no danger. P's manager himself believed that
the oil was non-inflammatory on water, and continued welding work. Two days later
molten metal from the wagon Mound fell on cotton waste, ignited and caused a great
damage to the wharf and the equipment.
The Privy Council in England, held that D (Wagon Mound) was not liable. The Court
applied the test of reasonable foresight and rejected the direct rule theory. It overruled
Re Polemis case. It said 'after the event a fool is wise. But, it is not the hind-sight of a
fool, it is the foresight of a reasonable man which alone can determine
responsibility'.
What the reasonable man ought to foresee, corresponds with the common conscience
of mankind and hence, the test of reasonable foresee ability must be applied. Judged
from this, it was held not liable. This decision has been approved in a recent case
Hughes V. Lord Advocate (1963).

CHAPTER 15
NEGLIGENCE
Negligence is the breach of legal duty to take care which results in damage, undesired
by the defendant to the plaintiff (Winfield).
Negligence is an independent tort. Its essentials are:
• Duty to take care.

• Breach of duty.
• Consequent damage.
1. Duty to take care.
The leading case is Donoghue V. Stevenson, M, and the manufacturer had sold
ginger-beer in an opaque bottle to a retail seller R. R sold it to A who gave a treat with
it to a young woman P. P consumed the ginger-beer, but found in the bottle a dead
snail. This seriously affected her and she became ill. She sued M, the manufacturer.
In fact there was no contractual duty of M to P, but the House of Lords, held that M
was liable. Lord Aitkin's judgment is a classic. He held 'You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be likely to injure
your neighbor, who then in law is my neighbor? The answer seems to be, Persons
who are so closely and directly affected by my act that ought reasonably to have them
in contemplation as being so affected by my acts or omissions".
It was the duty of the manufacturer to take care that the opaque bottle did not contain
noxious matter. It was held that the manufacturer was liable.
This case is a milestone and the above principle is regarded as the statement of law.
The courts follow this, unless there are strong reasons to deviate from it. The "standard
of care" as applied by the courts, is the standard of a reasonable man. The care, the
skill and the diligence of the person, must be that of an ordinary prudent man under
the circumstances.
In Bolton V. Stone, D, a person who was on the roadside, was injured by a cricket-
ball hit by the player from the field which was about 100 yards away from the road.
There were one or two such rare occasions in the past. The court held that the
defendants (the members of the club) were not liable. The hit was so exceptional that
no prudent man would have foreseen. Further, it was too remote and no reasonable
man would have anticipated.
2. There must be a breach of duty.
The second essential condition is that there must be a breach of duty. This is judged
with reference to a "reasonable man".
According to Alderson J, "Negligence is (i) the omission to do something which a

reasonable man would do, (guided by the circumstances on hand) or
(ii) Doing something which a prudent man would not do". This is the objective standard
of a reasonable man. It is the application of "foresee-ability test" i.e. whether a
reasonable man would have foreseen. Roe V. Minister of Health: In 1947. Dr. G.
gave to R a spinal anesthetic to conduct an operation. The anesthetic which was in an
ampoule, had been stored in phenol as usual. But due to an "invisible crack" in the
ampoule, phenol had entered and in consequence, the patient R became paralyzed.
Dr. G had taken all care as a prudent surgeon would have taken and he was not aware
of the crack in the ampoule. Held, Dr. G was not liable.
The medical literature on the subject was consulted as the set standard and Dr. G was
held not negligent.
3 Consequent damage. There must be the injury to the plaintiff as a direct

consequence of the negligence of the defendant. It must not be too remote.
The leading cases are:
(i) Donoghue V. Stevenson

(ii) Bolton V. Stone
(iii) The wagon Mound case etc.
15.1 Contributory Negligence:

This is a defense open to the defendant, in an action for negligence. This is based on
the principle that no doubt, the defendant is, in fact negligent but the plaintiff also has
contributed his negligence, and hence the plaintiff should not be allowed to take
advantage of his own tort of negligence.

The maxim is "in pari delicto potior est conditio defendatis" (If both parties are
equally to blame, the condition of defendant is to be preferred). Both are authors
responsible for the injury. Of course, the burden of proof lies on the defendant to
establish contributory negligence of the plaintiff.
The question in each case is: who caused the accident? (Winfield)
i) If it were the defendant, the plaintiff can recover damages in spite of negligence
(Rule of last opportunity: Davis V. Mann)
ii) If it were the plaintiff, he cannot recover damages in spite of defendant's negligence
(Butterfield V. Forrestor).
iii) If it were both the plaintiff and defendant, the plaintiff cannot recover.
Da vies V. Mann: P had tied the forefeet of his donkey and had let loose on the
highway. D who was going at a smartish pace in his wagon (horse driven), ran over
and killed the donkey. P sued D. It was held that D had the last opportunity to avoid
the accident. Hence, D was liable.
Butterfieid V. Forrestor: D wrongfully obstructed the highway by putting a pole across

the road. P who was riding violently saw the pole from a distance of about 100 ft. away,
but came against the pole and was thrown over by the pole and was injured. It was
held that D was not liable. The reason: If P had exercised due care, he could have
avoided the accident, this decision has been modified later in Davies V. Mann.
Rule of last opportunity: This is the rule now in operation. In British India Electric Co.
V. Loach: The rule was applied to constructive last opportunity. In this case, P, a
wagon driver was driving negligently on the level crossing. D's driver who was driving
a tram came at a fast speed, saw the wagon on the tramline, and applied the brakes.
But, as the brakes failed, he dashed against P and P was killed. P's representative
sued D. It was found that the brakes were defective and hence D had
the last opportunity. If the brakes were in order, he could have averted the accident.
He has failed to do so and hence, D was held liable.
As this rule was also not free from doubt, the Parliament enacted in England the Law
Reforms Act 1945. It provides that when both P and D are at fault the claim of P will
not be defeated, but would be reduced to such extent as the court thinks just and
equitable.

15.2 Alternate Danger doctrine:
Jones V. Boyce This is also called as the dilemma principle. Such a situation arises,
when the plaintiff, P is put in a position of imminent personal danger by the wrong
doing of the defendant. In order to avoid the danger, P suffers injury. In such cases, D
is liable. D, a Coach-driver was driving with P, so negligently and with so much speed
that P was alarmed. Going down the hill, the coach's coupling gave way; It struck a
post and was about to be turned down. P, to save himself jumped out and was injured.
He sued D. Held D liable.
If P had not jumped out, he would not have been injured, as the coach came to rest
later without any trouble. Even then D was held liable as he had created a dilemma to
P.
15.3 Res ipsa loquitur. (The thing itself speaks)
This is part of the rule of evidence. In cases of negligence, the burden of proving
negligence is on the plaintiff, but Res ipsa loquitur is an exception. This is a case where
the event "tells its own story" clearly and speaks to the defendant to disprove. E.g. the
presence of a pair of scissors in the stomach of a patient P, 2 days after the
operation is over, or the presence of a stone in a loaf of bread, tells its own story.
The court presumes the negligence of the Defendant.
Byrne V. Boadle: A barrel of flour rolled out of an open doorway of the upper floor of
the godown of D, and fell on P who was going on the street. The burden was on D to
prove that he was not negligent. Held, D liable.
In State of Punjab V. M/s Modern Cultivators, a canal was under the care of the
State. Due to its negligence there was a breach and water flooded the fields of P. P
suffered losses and sued the State. Held, the State was liable. Res ipsa loquitur was
applied.

CHAPTER 16
TRESPASS TO LAND
Definition: Trespass to land is the unjustifiable interference with the possession of
land. (Winfield)
Two Essentials:
• Invasion of or entry on the land.

• Invasion must be unjustifiable.
1. Possession: It is the evidence of ownership and has two ingredients: Animus

and Corpus;
- Animus is the mental element and
- Corpus is the physical element.
The person in possession of land need not be the owner; he gets the right to quiet and
peaceful enjoyment of the property. He has a right to exclude all others.
There is trespass if A enters on the land of 'B' or remains there or does any act affecting
the possession of B, without legal authority. It is not necessary that he must use force
and cause damage on the land of B. In fact as chief justice Holt said "Every invasion
of private property, be it ever so minute, is trespass". (Entinck V. Corrington)
2. Invasion must be unjustifiable. Every interference which is without any legal

authority or justification amounts to trespass, e.g. Placing any chattel on the
land of B, planting trees on that land, shooting over that land, causing any
noxious substance to cross the land, erecting a building overhanging that land
etc, Even the airspace above the land belongs to the possessor of land and any
unauthorized invasion is a trespass. Trespass may be by animals. The owner
of the animal is liable.
16.1 Trespass ab initio.
Trespass ab intio means trespass from the beginning, this is a circumstance where
the entry of a person on the land of another is lawful, but if the person stays and abuses
his authority he becomes a trespasser ab intio. It is important that the person must
abuse his possession by doing some positive act and not by a mere omission.

i) Six Carpenter's case: Six carpenters entered an inn (hotel), took bread and wine.
They paid the bill. They ordered again and were served. They quarreled on the rates
and then did not pay as per the demand. The hotel owner P sued them for trespass
ab initio. Held, not liable. For trespass ab inito, there must be a positive act. Not paying
was an omission. If a carpenter or an electrician lawfully enters to do some repairs but
does some positive act (damaging the property, stealing some materials etc.,) he
becomes liable for trespass ab initio.
ii) Dais V. Pasmore: In this case, the police entered the premises of P, to arrest P and
others. They seized some documents which were relevant for the trial of the arrested
person; they also seized other documents which they returned later. It was held that
the police officers were liable for trespass ab initio in respect of documents seized and
returned. But they were not liable for entry on the premises to arrest P and others.
iii) Chic Fashins V. Jones: The police officers, under a search warrant entered P's
shop to search certain stolen goods. They found none but found certain others which
they seized. They had reasonably and erroneously believed that the seized goods
were stolen. Held, the seizure was not illegal. The doctrine of trespass ab initio was
not raised.
16.2 Remedies for Trespass.
The Remedies are
1. Right of re-entry: The dispossessed person P, may re-enter if that is possible or

may enter under the orders of the Court. (Specific Relief Act).
2. Action for recovery of land: The dispossessed person may sue for recovery of
land; if he establishes his title and possession, he ir. entitled to recover the land.
3. Action for mesne profits: Any profits made or rent collected or benefit made by
the person who was on land without legal authority, may be recovered by the plaintiff
under Civil Procedure Code by filing a suit for mesne profits.
4. Jus Tertii: This means' right of third party'. If T is a tenant of P, the plea of T that P
is not the owner of that house or that he has no title, is no defence of T. Similarly, in
case of Trespass to land, the plea of the trespasser that P has no rights or title will not
be allowed. This is a sound rule of procedure before the courts. However in case of
ejectment this may be a defence.

In Asher V. Whotlock:' A' was in possession of a waste land. B entered the premises
to take the waste. B pleaded jus tertii that the title was with a third party but could not
establish. Hence B failed.
16.3 Defenses for Trespass
The various defense open to an action for trespass to land are briefly as follows:
a) Right by prescription: The defendant must establish his right earned by

prescription.
b) Leave and License: The entry may be under permission expressly or by

implication.
c) Authority of law: The entry may be according to law as in cases of entry for
attachment of property under the orders of the court.
d) Distress Damage feasant: For cattle trespass, the animal may be detained until
compensation is paid by the owner of the animal.
e) Self defence: This is a general defence and must be proved.
f) Re-entry on land: A person who is wrongfully dispossessed may enter peaceably

and without using force.
g) Abating a Nuisance: To remove a nuisance, entry on the land is justified.
h) Entry to protect an easementary right.

CHAPTER 17
REMEDIES IN TORTS
The various remedies available for Torts are:
• Damages.
• Injunctions
• Restitution of Property
• Extra Judicial Remedies.
These may be discussed with some details.
1) Damages.
In Tort, damages refers to the pecuniary (Money) Compensation that is determined by

the court (Unliquidated Damages). The defendant is liable for the damage caused to
the plaintiff if the damage is the direct consequence of the act of the defendant.
Scott V. Shepherd: Wagon Mound case etc., Kinds of damages: There are four kinds
of damages: 1) Nominal (2) Substantial (3) Exemplary and (4) Contemptuous.
1) Normal damages are awarded in circumstances where only a right is established

(e.g. Assault). This may not even meet the expense incurred for suing.
2) Substantial damages are awarded to fairly compensate the plaintiff for his injury
and suffering. The court considering the nature of the case, awards compensation
which is fair and reasonable.
3) Exemplary damages: Where it is not possible in calculate the compensation in terms

of money. The court may take into account the conduct, motive and other
circumstances and award aggravated (high) damages. This is exemplary. The
objective is to make the wrongdoer an example, and to deter and punish such persons.
The amount awarded is much more than loss suffered.
Huckle V. Money: D, a Government servant entered the house of P under a nameless

search warrant and made the search. P sued D. Held: D liable. As entering without
proper authority amounted to an attack on the liberty of P, the court awarded
exemplary damages.

In Merzett V. William: The bank D, had without reason, refused to honour a cheque.
P the drawer sued D. Held: D liable to pay exemplary damages.
4) Contemptuous Damages: In "Contemptuous damages", the court finds that the

plaintiff should not have brought an action, as the matter was so "Trifling". The court
forms a low opinion of the plaintiff, but, to protect his right, it awards one rupee or some
small amount. This is called contemptuous damages.
Cases of trespass on land, trespass to person are examples.
The rule is "De minimis non curet lex". (Law does not take cognisance of trifles).
17.1 Extra-judicial Remedies.
The Remedies are:
i) Distress Damage feasant: This is an extra-Judicial remedy. A person in possession

of land, may distress (means detain) a feasant for the damage it has done. He has the
authority to seize and detain the animal, until compensation is paid to him. He may
release it after the compensation is paid.
"Feasant" means animal or chattel. Examples are the stray animals, Cow, Ox, Horse,
etc. chattel may be a Road engine.
The animal is to be detained when it is a creating a trespass. It should not be seized

by a "Hot Chase".
The person who detains must take care of the animal as a reasonable man. He must
provide proper food, shelter, water etc. to the detained animal. He has no right to sell
or to use the animal. When compensation is paid, he should release the detained
animal or chattel.
ii) Abatement of Nuisance: same as above

iii) Expulsion of Trespasser: same as above
iv) Recaption of goods: Retaking of goods with a right to take.
v) Re-entry on land: same as above

CHAPTER 18
DEATH IN RELATION TO TORTS
The general rule in common law is 'Actio personalis moritur cum persona' (personal
cause of action, dies with the person). This has been abolished in England by the
Law Reforms Act 1934.
The position in civil cases is that the right or liability survives, to the successor.
Hence, on the death of the injured person, his legal representatives may sue or
continue the suit. Similarly, if the defendant dies his legal representative becomes
liable.
1) Death of plaintiff or person wronged.
a) The leading case is Rose V. Ford. , G a girl of 23, was severely injured in an
accident caused negligently by D. She was admitted to the hospital and treated.
After two years, her legs were amputated. Four days later she died. Her mother
sued D on
(i) Loss of service

(ii) Pain and suffering
(iii) Diminition in the expectation of life.
Held, that P, had a right to sue. D was held liable on all the above three counts.
Compensation was awarded under each count.
b) Rule in Bake V. Bolton. , Plaintiff P and his wife W were travelling on the top
of a stage coach of D. Owing to the negligence of D, the coach overturned. P was
bruised and W sustained severe injuries and after a month died.
Held, P was entitled to recover for bruises; P could also recover for loss of services,
of his wife, up to her death.
2) Death of Wrong-doer at common law no action could be brought but this has
been abolished by the law Reforms Act 1934. In India, an action may be maintained
against the legal representatives or heirs or executors of the deceased of
defendant. The action should be taken within the period of limitation i.e. One year.
The general rule is that if a suit is filed against the defendant and if he dies pending
the suit, the suit abates and could not be continued against the heirs or legal

representatives. Suits for slander, libel, false imprisonment, Assault, battery etc,
fall into this category. In others the suit may be continued.
Discharge of Torts.
The right to sue for torts, is discharged by:
1. Death of one of the parties: same as above
2. Waiver: When there are two or more remedies available for torts, the plaintiff
may waive one and select the other. He cannot pursue both or take one after the
other. If A is deprived of his goods by B, A may sue for tort of conversion, in the
alternative he may sue for the price of the goods. He may elect one or the other.
3. Accord and satisfaction: Accord is agreement and satisfaction is consideration

or money payment. Such an agreement discharges of tort.
4. Release: This is the giving up of the right of action in tort. But, it should not be
in ignorance of the rights or by mistake.
5. Acquiescence: This is acceptance and results in discharge of tort.
6. Limitation: Suits barred by Limitation, are automatically discharged. In India,

the period of limitation is one year for Libel, false imprisonment, malicious
prosecution etc.,

Torts Notes For LLB Sem 1

Uploaded by

Copyright:

Available Formats

Torts Notes For LLB Sem 1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Torts Notes For LLB Sem 1

Uploaded by

Copyright:

Available Formats

CHAPTER 1

1.1 Definition and Meaning of Tortious Liability:

1|Page - Dr. Avani Mistry

1.2 Torts Distinct From Breach of Contract:

Torts Breach of Contract

In tort, there is an infliction of an injury Consent is the basic essential of all

There is no Privity between parties. Ex: There is Privity of contract between

In the law of torts, there is a specific In case of a contract, breach is due to

2|Page - Dr. Avani Mistry

1.4 Torts Distinct From Crime:

In tort, there is an infringement of a civil In crime, there is an infringement of a

3|Page - Dr. Avani Mistry

Reasonableness can be best explained in cases of negligence. Negligence is in fact

In fine, a reasonable man is only a legal standard invented by the courts.

4|Page - Dr. Avani Mistry

MOTIVE AND MALICE

In another case (Guive V. Swan), D, a baloonist landed on the garden of P. People, in

Exceptions to the rule that Motive is irrelevant:

5|Page - Dr. Avani Mistry

2.2 Ubi jus ibi remedium:

"Where there is a right, there is a remedy"

2.3 Injuria Sine Damno and Damnum Sine Injuria Explained:

Injuria sine Damno:

Merzette V. william (Bank Case):

6|Page - Dr. Avani Mistry

Gloucester Grammar School:

A teacher who was illegally terminated by Gloucester School opened a school

Moghul Steamship Co., V. Mcgregor:

Dickson V. Reuter Telegraph Company:

2.4 Misfeasance Non feasance and Malfeasance:

7|Page - Dr. Avani Mistry

• Volenti non-fit injuria.

3.1 Volenti non fit injuria:

This maxim is subject to a number of exceptions:-

8|Page - Dr. Avani Mistry

Thomas V. Quarter Maine:

4) Negligence - Cases of negligence are exceptions to the rule.

5) Rescue cases: - In circumstances where a person goes out to rescue another,

9|Page - Dr. Avani Mistry

i) Act of God (Vis major) and

3.3 Act of God: (Vis major)

10 | P a g e - Dr. Avani Mistry

Act of God is a question of fact and must be established. In Greenock Corporation

11 | P a g e - Dr. Avani Mistry

Two things are to be established:

1. The defendant must owe a duty to the plaintiff, and

2. The plaintiff must be within the area of potential danger or

a) Bourhill V. Young (Fisher -woman's case)

b) Wilkinson V. Downton (Grey hair case)

c) King V. Phillips (Car backing case)

d) Hambrook V. Stokes (Unattended Lorry case)

e) Owens V. Liverpol Corporation (Mourner's case)

f) Dulie V. White (Horse Van running to a public house)

g) Chadwick V. British Rly. Board (Rescue in Rail disaster)

12 | P a g e - Dr. Avani Mistry

D, as a practical joke, reported to W, that W's husband was smashed in an accident.

i) D had a duty to W. By giving false news, he has committed a breach, and

Owens V. Liverpool Corporation

13 | P a g e - Dr. Avani Mistry