Law of TortsFrequently Asked Questions on Law of Torts
"Tort is a civil wrong for which the remedy is an action for unliquidated damages in common Law and which is not exclusive of the branch of trust or other mere equitable obligations."According to Prof. Winfield :-
"Tortious liability arises from the breach of a duty primarily fixed by the law, this duty is towards persons generally and its branch is repressible by an action for unliquidated damages."According to Undis hill :- A Tort is an act or omission which, independent of contract is unauthorised by law, and results, either, -
(a) in the infringement of some absolute right to which another is entitled, or
(b) in the infringement of some qualified right of another causing damage, or
(c) in the infringement of some public right resulting in some substantial and particular damage to some person beyond that which is suffered by the public generally.Another comprehensive definition is given by Sir Frederick Pollock in following words :-
"Every tort is an act or omission not being merely the breach of duty arising out of a personal relation, or undertaken by contract, which is related in one of the following ways to harm, (including interference with an absolute right whether there he measurable actual damage or not) suffered by a determinate person :-
(A) It may be an act which without lawful justification or excuse is intended by the agent to cause harm and does caused the harm complained of.
(B) It may be an act in itself contrary to law or an omission of specific legal duty which causes harm not intended by the person so acting or omitting."
(C) It may be an act violating an absolute right (especially) rights of possession and property and treated as wrongful without regard to the action's intention or knowledge. This is as we have seen is an artificial extension of the general conception which are common to English and Roman Law.
(D) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause but might and should with due diligence have foreseen and prevented.
(E) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits to avoid or prevent."Characteristics of the Tort - After examining the definitions of `Tort', one can say, following are essential characteristics of Tort -
1. Tort is a Civil Wrong - A Tort is a violation of a right of a person or breach of duty of another towards him. It is redressible in civil action for damages. In case of civil wrong, the injured party (Plaintiff) institutes a civil proceedings against wrongdoer (defendant) and the main remedy is damages or compensation. In case of a criminal wrong, the criminal proceedings against accused are brought by State and victim is not compensated rather accused is punished.
2. Tort is Other Than Mere Breach of Contract or Breach Of Trust - A Tort is a civil wrong, however every civil wrong is not a tort, it will have to be determined as to whether civil wrong is tort and not breach of contract or breach of trust.
3. Tort is Redressible by an Action for Unliquidated Damages - Remedy available against tortious acts is claim of unliquidated damages. Unliquidated means something which is not previously determined or fixed but left to be determined by Court. In other unliquidated damages are those which are unmeasurable by any set principles.
1. It is a private wrong i.e., an infringement of the private or civil right of an individual. It is comparatively less serious and labelled as civil wrong. For example, an obstruction outside a particular house is a tort.
1. It is a public wrong i.e. a wrong against the public at large or wrong against the State, even though the victim is an individual. It is a more serious wrong. For example, an obstruction in the middle of a public road is a crime.
2. The rules applicable in a case of tort are generally different from those in the case of crime. For example, in the case of tortious liability for the wrong of defamation truth is in itself a defence.
2. In an action for the offence of defamation, the defence of truth can be taken if the publication was made for public good.
3. The suit has to be filed by the injured party as plaintiff and by none else. Parties may enter into a compromise and the suit may be withdrawn.
3. The criminal proceedings are not brought by the injured party but by the State. Except in certain exceptional cases, the law does not permit a settlement in criminal cases.
4. Damages or compensation to the injured party to make good the loss suffered by him, is the most common remedy of a tort.
4. The wrongdoer is punished so as to deter him and other potential offenders from committing wrongs. In certain exceptional cases e.g. Section 357, Cr.P.C., provision for compensation also provided for.
1. The interest in tort is created by law but in case of contract it is created by the agreement between the parties to the contract.
2. In tort duty not to violate the interest of another person is towards persons generally, e.g., when one drives a vehicle on the road he has duty to take care of all other persons. This duty is not towards any particular person but towards all persons who happen to be on the road. In contract, on the other hand, the duty is towards the parties to the agreement and not towards any stranger.
3. In tort damages are always unliquidated but for breach of contract liquidated damages may be claimed where specified in the contract.Even where unliquidated damages are claimed the principles of liability in tort and contract differ. In contract damages are of compensatory nature except in cases of contract of marriage and action by a trader against his banker for dishonouring his cheque while there is sufficient balance to his credit. In tort, on the other hand, exemplary damages may in certain cases be awarded by the Court.
BREACH OF CONTRACT
1. In tort, the duties are primarily fixed by the law and a breach of these duties constitute a tort.
1. In a contract, the duties are fixed by the parties themselves, the breach of which is a breach of contract.
2. A tort is violation of a right in rem i.e. against the world at large. A's duty not to defame is not towards X or Y or Z only. Whoever is defamed by A will be entitled to bring an action against him.
2. A breach of contract is the violation of a right in personam, i.e. against some determinate person. In other words, the duty is based on the privity of contract and each party owes duty only to the other contracting party. Thus, a stranger to contract cannot sue.
3. In a tort, motive may be taken into account, while deciding a case. If the motive was found good and a wrong had been done to avoid a greater evil, the defaulter might escape the liability.
3. In a breach of contract, the defaulting party is bound to incur liability irrespective of the motive.
4. In a tort, the damages awarded are unliquidated i.e. not previously fixed but decided by the courts. Generally the parties are not known to each other until the tort is committed and moreover it is difficult to visualise before hand the quantum of loss in tort.
4. In a breach of contract, the plaintiff is awarded the amount of damages which is either already settled between the parties i.e. liquidated damages, or the actual damages which can be determined from the relevant facts.
Q. 3 "Real significance of legal damage is illustrated by two maxims - "Injuria sine damnum" (injury without damage) "Damnum sine injuria" (damage without injury) - Discuss. Or What do you understand by the maxims "damnum sine injuria" and "injuria sine damnum" ? State also the applicability of these maxims ?
(a) "Injuria sine damno"
(b) "Damnum Sine injuria"(a) Injuria Sine damno The general principle is that, if there is a right, there must be a remedy for its violation though the injury does not cause actual or pecuniary damages. This principle is expressed by saying that "injuria sine damno". The main gist of the maxim is that whenever there is an infringement of a legal private right, even without any actual loss or damage, the person whose right is so infringed is entitled to bring an action and recover damages. Rights are of two kinds : absolute and qualified. A violation of absolute right will furnish a cause of action, without proof of actual damage and this case is not with qualified right and therefore in their violation law does not presume damage without actual proof. A classification of rights into absolute and qualified, gives rise to similar classification of torts. In this way torts are of two kinds, (1) those which are actionable per se and (2) those which are actionable only on proof of actual damage resulting from them. The maxim, therefore, means infringement of absolute right without any actual loss or damage. The act of trespassing upon another's land is wrongful and is actionable, even though it has done the plaintiff not the slightest harm. A libel is also actionable per se while slander, on the other hand, generally is not actionable without proof of actual loss. In Ashby v. While, (1703) 2 L.R. 938, the plaintiff succeeded in his action, even though the defendant's act did not cause any damage. The plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff's vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won inspite of that. It was held that the defendant was liable. The following observations made by the court aptly clarify the principle of the maxim : "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. Every injury imports a damage, though it does not cost a party one farthing (or paisa), the damage being that the person is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of speaking them yet he shall have an action. A man shall have an action against another for riding over his ground, though it does him no damage, for it is an invasion of his property, and the other has no right to come there." Tozer v. Child, (1457) 7 E. and B. 377 is a similar decision in respect of municipal elections. Similarly in Municipal Board of Agra v. Asharfi Lal, (AIR 1921 All. 202), it was observed by the court that if any duly qualified citizen or person entitled to be on the electoral roll of any constituency is omitted from such roll so as to be deprived of his right to vote, he has suffered a legal wrong and has a legal remedy. The application of Maxim in India. - In the case of Kalibissen Tagore v. Jadoo Lal Mulick, 6 IA 190 at p. 195, the maxim has been fully explained. Where the name of a person who was legally entitled to cast his vote, was refused to be included in the voter's list, it was held by the court that this would amount to injury to the voter, and he would be entitled to get damages even without a proof of actual damages. In a recent case Bhim Singh v. State of J and K, (AIR 1986 SC 494), the petitioner, an M.L.A. of J&K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session. The court awarded exemplary damages of Rs. 50,000 by way of consequential relief. In case of injuria sine damno the loss suffered by the plaintiff may be relevant only as regards the measure of damages. Generally nominal damages are awarded by the court. If, however, the court feels that the violation of a legal right is owing to mischievous and malicious act, as had happened in Bhim Singh's case, the court may grant even exemplary damages. (b) Damnum Sine Injuria It may happen that a person may suffer loss without any legal injury. In law of torts this rule means damages which is not coupled with an unauthorised interference in the plaintiff's lawful right. Causing of damage, however substantial to another person is not actionable in law unless there is also a violation of a legal right of the plaintiff. It means that the plaintiff may suffer actual or substantial loss without any violation or infringement of legal right and therefore no action lies in such cases. This is generally so when the exercise of legal right by one results in consequential harm to the other, even though the injury is intentional. There are many forms of harm of which the law takes no account :
i) Loss inflicted on individual traders by competition in trade,
ii) Where the damage is done by a man acting under necessity to prevent a greater evil,
iii) Damage caused by defamatory statements made on a privileged occasion,
iv) Where the harm is too trivial, too indefinite or too difficult of proof,
v) Where the harm done may be of such a nature that a criminal prosecution is more appropriate e.g. in case of public nuisance or causing of death,
vi) There is no right of action for damages for contempt of court.The following cases explain the maxim : Gloucester Grammar School case (1410) Y.B. Hill, 11 Hen - The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition the plaintiffs had to reduce their fees. Held that the plaintiffs had no remedy for the loss thus suffered by them. Handkford J., said : "Damnum may be absque injuria (without infringement of a right) as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged....but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives." In Action v. Blundell, 1843 12 M and W 324 the defendants by digging a coalpit intercepted the water which affected the plaintiff's well, less than 20 years old at a distance of about one mile. It was held that they were not liable. It was observed :-
"The person who owns the surface may dig therein and apply all that is there found to his own purposes, at his free will and pleasure and that if in the exercise of such rights he intercepts or drain off the water collected from underground springs in the neighbour's well this inconvenience to his neighbour falls within the description "damnum abseque injuria" which cannot become the ground of action."In Bradford Corporation (Mayor of) v. Pickles, 1895 A.C. 587, the House of Lords went a step further and held that even if the motive of the adjoining owner was malicious no action could lie against him for the harm caused by him by the lawful exercise of his rights over his own land. In this case the plaintiffs had been deriving water from the adjoining land of the defendant which was at a higher level. The defendant sank a shaft over his own land which diminished and discoloured the water flowing to the land of the plaintiffs. The plaintiffs claimed an injunction to restrain the defendants from sinking the shaft alleging that the sole purpose of the same was to injure the plaintiffs if they did not purchase his land. The House of Lords held that since the defendant was exercising his lawful right, he could not be made liable even though the act, which injured the plaintiff, was done maliciously. The Maxim in India :- The maxim was also applied by the Andhra Pradesh High Court in P. Seetharamayya v. G. Mahalakshmamma, AIR 1958 A.P. 103. There four defendants tried ward off the flow of water into their plot from a stream by digging a trench as well as putting up a bund on their land. The fifth defendant also, acting independently, put up bunds on her land to prevent the flow of water to her land. As a result of the act of these five defendants the rain-water now flowed to the plaintiff's land causing damage to them. The plaintiffs requested for a mandatory injunction to demolish the bunds and to fill up the trench on the defendants' lands for a permanent injunction preventing them from making bunds or making such trenches and also damages amounting to Rs. 300/- for the loss already caused due to the flow of the water of their land. The High Court held that the owner of land on or a river has a right to build a fence upon his own ground to prevent damage to his ground by the overflow of river even though as a result of the same the over-flowing water is diverted to the neighbour's land and caused damages. This being a clear case of damnum sine injuria the defendants were not liable for the harm to the plaintiffs. In Town Area Committee v. Prabhu Dayal, (AIR 1975 All 132) the Court held that the demolition of an unauthorised building is not an injury to the owner. In such a case he can not get compensation even if he has suffered damages. Thus, the meaning of this maxim is that loss or damage is not essential ground of action if no legal right is infringed, even if it was committed with an intention to cause such harm. It may be pointed out that there may be certain legal wrongs which are not injurious or such as to cause injury to others, yet they are violative of legal rights and an action lies for them, and on the other hand there are some for wrongs, which may result in damage to another, but the law will take no notice of them.
"If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in exercise or enjoyment of it and indeed it is a vain thing to imagine a right without a remedy, want of right and want of remedy are reciprocal".The principle of `Ubi Jus ibi remedium' was for the first time established in the case of Ashby v. White, (1703) 2 Ltd. Raym 938. It is important to point out here that it is not at all necessary that there should be major or substantial damage should be caused by violation of right, it is sufficient for getting the remedy if a legal light has been infringed and even if nominal damage has been caused. Limitations - This maxim i.e., ubi jus ibi remedium should be read with its necessary limitation so that its true meaning should not be misunderstood. The maxim does not mean, as it is sometime as supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal and made without consideration; nor for many kinds of verbal slanders, though each may involve utter ruin; nor for many oppressive legislations, though it may reduce men practically to slavery; nor for the worst damage to person or property inflicted by the most unjust and cruel war. This maxim in its application to the law of torts, excludes the wrongs for which statutory penalty is provided i.e., law of crimes. According to Stephen J. in Brodlough v. Gossett - The maxim means only that legal wrong and legal remedy and correlative term; and it would be more intelligibly and correctly stated, if it were reversed, so as to stand, "Where there is no legal remedy, there is no legal wrong. In re Hepburn, Exparte Smith, Cave J. observed :
"There is in law no right without a remedy : and if all remedies for enforcing a right are gone, the right has in point of law ceased to exist."Similarly, if a particular injury was caused by the Act of parliament, the maxim has no application. Conclusion - Thus it may be concluded that -
(a) The maxim was applied for the enforcement of legal right.
(b) Moral right or Political rights were not enforced upon the basis of this maxim.
(c) Law always provides legal remedy in case of breach of legal right.
(d) The remedy existed if right existed. Thus right existed first then remedy sprouted out its breach.
Q. 6 Discuss critically the two competing theories with regard to the foundations of "Tortious liability".
Which of the two competing theories is correct ? Is there a law of tort or law of torts ? :-
(i) all injuries done to another person are tort unless there is some justification recognised by law.
(ii) There are definite number of torts outside which liability in tort does not exist.
"Just as the criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted for an alleged offences, or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of justification of excuse."So for Salmond, there was no English Law of tort but there was English Law of tort that is list of specific acts and omissions which in certain conditions were actionable. Sir Salmond has supported his view by citing several cases in which the plaintiff suffered manifest injury yet he was unable to recover any damages in an action in tort, in the case of "damnum sine injuria". But a weak spot in the second theory is that it appears to regard the list of torts which have specific names as a closed one and to make the certain of new torts by judicial decisions impossible. Prof. Winfield has analysed this theory in the following words:
"The law of Torts consists of a neat set of pigeon-holes such containing a liabelled tort. If the defendant's wrong will not fit in any of these pigeon holes, he has committed no tort."But Dr. Jenks regarded this as a wrong inference and says that new torts can be and have been created; but this is perfectly consistent with the second theory because new torts cannot come into being unless the courts regard them as substantially similar to torts which they have already recognized. These new torts do owe not their origin to any general principle that all unjustifiable harm is tortious." Supporting the view of Sir Salmond and justifying his view Mr. R.F.V. Heuston and Buckley have stated that to some extent critics seems to have misunderstood Salmond. He never committed himself to the proposition "to say that the law can be collected into pigeon-holes does not mean that those pigeon-holes may not be capacious nor does it mean that they are incapable of being added to." Conclusion :- Prof. Glanvile Williams has summed up the controversy in following words :-
"The first school has shown that the rules of liability are very wide. The second school has shown that some rules of absence of liability are also very wide. Neither school has shown that there is any general rule, whether of liability or of non-liability, to cover novel cases have not yet received the attention of the courts. In a case of first impression, i.e., a case that falls under no established rule or that falls equally under two conflicting rules - there is no ultimate principle directing the court to find for one party or the other - why should we not settle the argument by saying simply that there are some general rules creating liability and some equally general rules exempting from liability....Between the two is a stretch of disputed territory, with the courts as an unbiased boundary commission. If, in an improvised case, the decision passes for the plaintiff, it will be not because of a general theory of liability but because the court feels that there is a case in which existing principles of liability may properly be extended."
(a) Malice in law, and
(b) Malice in fact.(a) Malice in law - In its legal sense, the term `malice' means "a wrongful act done intentionally without just cause or excuse." In Shearer v. Shields, (1914) A.C. 808, it was observed that a person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly and in that sense innocently. Thus, a wrongful intention is presumed in case of an unlawful act done without just cause or excuse or for want of reasonable or probable cause (Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49). A malicious defamatory statement means that the statement is made without lawful justification. (b) Malice in fact - In its narrow and popular sense the term `malice' means an evil or improper motive. It is the malice in fact or `actual malice'. When the defendant does a wrongful act with a feeling or spite, vengeance or ill-will the act is said to be done `maliciously'. Motive means an ulterior reason for the conduct e.g. motive for theft may be to buy food for his children or to help a poor man. As a general rule, malice in the sense of improper motive is entirely irrelevant in the law of torts. The law in general asks merely what the defendant has done, not why he did it. A good motive is no justification for an act otherwise illegal, and a bad motive does not make wrongful an act otherwise legal. In a leading case Bradford Corporation v. Pickels, (1895) A.C. 587 where defendant was held not liable for intentionally intercepting, by means of excavations on his own land, the underground water that would otherwise have flowed into adjoining reservoir of the plaintiffs, although his sole motive in so doing was to coerce the plaintiffs to buy this land at his own price. House of Lords observed that the respondent's conduct was not malicious in the sense of being actuated by spite or ill-will towards plaintiffs. His position was simple. He had something to sell and he did not see why the plaintiffs should not pay the price he asked..........In short his motive was not an improper one in the eye of common law.........". In Town Area Committee v. Prabhu Dayal, AIR 1975A All. 32 the plaintiff's illegal construction was demolished by municipality. Plaintiff contended that the demolition was illegal as some of the officers of town area committee were acting maliciously in getting the construction abolished. The court rejected the plaintiff's contention and observed that merely because some officer has malice against a citizen who has committed a wrong will not render the action of authority invalid if it is otherwise legal. Difference between Malice-in-fact and Malice-in-law.
(i) Malice-in-fact or express malice is an act done with ill will towards an individual.
(i) Malice-in-law or implied malice means an act done wrongfully and without reasonable and probable cause. In order to constitute malice-in- law, the act done must be wrongful or legal right must be violated.
(ii) Malice-in-fact depends upon motive.
(ii) Malice-in-law depends upon knowledge.
(iii) Malice-in-fact means ill-will or any vindictive motive against a person.
(iii) Malice-in-law means the concurrence of mind with a wrongful act done without just cause or excuse.
"Where a man has a right to do an act, it is not possible to make exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense."But malice-in-law is relevant. In Quinn v. Leathem, A, intentionally and without lawful justification, induced B's workmen to discontinue their contract with B. A did this, prompted by a good motive to do good both to B's workmen. It was held that as the procurement of a breach of contract without lawful justification was tort. A was liable. Exceptions - Though, as stated above, Malice-in-fact or express malice is irrelevant in law of torts, there are certain exceptions. In the following exceptional cases, actual motive or improper motive is relevant;
(i) Defamation on privileged occasion,
(ii) Malicious prosecution,
(iii) Wilful and malicious damage to property.
(iv) Injurious falsehood about goods, slander, of title etc.
(v) Malicious conspiracy, and
(i) The plaintiff had the knowledge of risk and
(2) The plaintiff with his free consent ran the risk of harm and injury(1) Knowledge of Risk :- It is necessary for application of this maxim that plaintiff must know the nature of the act and its extent of risk or danger. A complete knowledge of risk or danger is in every event necessary but such knowledge does not necessarily import consent. It plaintiff does not know or reasonably cannot understand the nature and extent of risk with the performance of an act. It will be presumed that he had no knowledge of risk and defence of `volenti non fit injuria' will not be available to the defendant. (2) Free-consent :- In Smith v. Baker, (1891) A.C. 325, the plaintiff was workman employed by the defendant on working a drill for the purpose of cutting a rock. By the help of a crane, stones were being conveyed from one side to the other, and each time when the stones were conveyed the crane passed over the plaintiff's head. While he was busy in his work a stone fell from the crane and injured him. The employers were negligent in not warning him at the moment of a recurring danger, although the plaintiff had been generally aware of the risk. The House of Lords held that the plaintiff had not voluntarily undertaken the risk. Thus the mere knowledge of the risk without the assumption of it does not help in applying the maxim. It must be shown that the plaintiff agreed or appreciated that what risk there was should lie on him. It is necessary for the defendant to take defence of `Volenti non fit injuria' to prove that after having the knowledge of the nature and extent of risk attendant with the work or act, the plaintiff has given his consent to run the risk of harm. However if the plaintiff has given his consent under undue influence, coercion, fraud, misrepresentation or mistake etc; then it will not be treated free-consent. The act to which the consent is given must not in itself be illegal or against public policy. Consent obtained by fraud is not real. Fraud vitiates consent, if it induces mistake as to the real nature of the act done. Thus, in R. v. Williams, (1923) 1 K.B. 350, the accused, a music teacher, was held guilty of rape when he had sexual intercourse with a minor girl on the pretext of an operation to improve her voice. In this case, the victim was not aware of the very act and she had consented to what she believed to be a surgical operation. Similarly, the consent obtained under compulsion when the person has no freedom of choice is not a free consent. Such a situation generally arises in master-servant relationship. The servant may sometime be faced with the situation of either accepting the risky work or losing the job. There is no volenti non fit injuria when a servant is compelled to do some work inspite of his protests (Bowater v. Rowley Regis Corpn., 1944 K.B. 476). But if a workman adopts a risky method of work of his own free will he can be met with the defence of volenti non fit injuria (Imperial Chemical Industries v. Shatwell, 1965 A.C. 656). Limitation of the Maxim - This maxim is however subject to the following limitations :-
(a) No consent can legalize an unlawful act or an act which is prohibited by law and when the tort is of such character as to amount to a crime.
(b) The maxim has no validity against an action based on a breach of statutory duty. Thus it is no answer to a claim made by a workman against the employer for injury caused through a breach by the employer of a duty imposed upon him by a statute.
(c) The maxim does not apply to cases of negligence. In the case of Dann v. Hamilton the plaintiff knew fully well that the driver of a motor car was drunk and hence the chances of accident were great, yet she chose to travel by that car and engaged the driver. She was injured in an accident caused by the drunken-ness of the driver, in which the driver was killed. In an action against personal representative of the driver, the dependants raised the plea of volenti non fit injuria. But it was held that the drunken-ness of the driver proved that he was negligent and as the maxim did not apply to the tort of negligence the plaintiff was entitled to recover.
(d) The maxim does not apply to rescuing cases, where the plaintiff had, under exigency caused by the defendant's wrongful misconduct consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death it was held that the maxim volenti non fit injuria does not apply and it was immaterial the plaintiff acted -
(i) deliberately, from a sense of moral duty, for he acts in such a case under compulsion of duty, or
(ii) on impulse, for the exercise in such a case no choice in acting as he dtd.It should be noted that the rescuer will not be deprived of his remedy merely because the risk which he runs is not the same as that run by the person whom he rescues.
(i) There must be working of natural forces (like exceptionally heavy rainfall, storms, tempests, earthquakes, tides and volcanic eruptions) without any human intervention.
(ii) The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.Act of God is a kind of inevitable accident with the difference that it do not incorporates any human intervention. Accidents may happen by reason of the play of natural forces or by intervention of human agency or by both, but it is only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could he said to be acts of God. `Act of God" (Vis major) as A Defence - The principle of Act of God as defence was applied in Nicholas v. Moshland, (1875-1876) L.R. 10 Ex. 255 - in this case defendant constructed an artificial lake on his land by damaging the natural flow of a stream and enjoy it for many years. Due to an extra ordinary rainfall (stated to be the heaviest), as a result of which over flow of water washed away four bridges of plaintiff. In an action brought by plaintiff, defendant was held not liable as the escape of water and consequential loss was due to an Act of God. In Manindra Nath Mukherjee v. Mathuradas Chattur Bhuj, AIR 1946 Cal. 175 is Indian Case on the defence of `Act of God'. During a storm in Calcutta a cinema advertising board fell down from the defendant premises and injured the plaintiff. It was found that such storms of considerable severity usually come in the town of Calcutta during Monsoon Session. The Calcutta High Court held that "such a storm cannot be said to be go unexpected that no human foresight could reasonably be expected to anticipate it and cannot be regarded as vis Major or Act of God". So, the defendant was held liable for negligence as proper care was not taken to secure the banner. Since Act of God is a good defence non-liability, it is necessary that such an event could not have been prevented by reasonable care on the part of the defendant. In other words, before an Act of God can be admitted as an excuse, the defendant must himself have done all that he was bound to do. Where a thing escapes from the defendant's land due to an unprecedented and unanticipated act and it is practically impossible for the defendant to prevent it, the defence of Act of God applies and the plaintiff cannot recover for the loss due to that escape.
1. It is an unavoidable accident.
2. It is an accident in the nature of an event which is beyond the control of the defendant.
3. It is an accident which could not be avoided by care and caution.Thus, in order to make an accident as an inevitable accident, nature of the accident should be such which should not have been capable of being prevented by ordinary skill and diligence. Law does not require that person should apply extraordinary skill or caution or diligence to prevent the same. Whether an accident is inevitable or not is always a question of fact. Ans. (B). Difference Between Inevitable Accident and Act of God - It is important to study the relation between an Act of God and an inevitable accident. Any accident which occurs from natural causes without human intervention, it is an Act of God. Prof. Winfield has opined that, "an Act of God is much older, much simpler and much more easily grasped by primitive people then is the idea of inevitable accident. A falling tree, a flash of lightening, a tornado, or a flood presents to the observer a simple and dramatic fact which the veriest child or layman would regard as an excuse for harm done without further argument. But the accidents which are not conclusions of nature are a very different matter. To know whether injury from a run away horse was inevitable, one must ask `would a careful driver have let it run away'.........Inevitable accident differs from an Act of God in (i) not depending on `natural forces,' (ii) being a general defence. All causes of inevitable accident may be divided into two classes :-
(1) Those, which are occasioned by the elementary forces of nature unconnected with the agency of man or other causes; and
(2) Those, which have their origin either in whole or in part in the agency of man, whether in the commission or omission, non-feasance or misfeasance or in any other cause independent of the agency of natural forces. The term "Act of God" is applicable to the former class - Nugent v. Smith, (1876) 1 C.P.C. 423, 435. The latter type of accidents are termed "inevitable accidents" or "unavoidable accidents."An Act of God will be extraordinary occurrence due to natural cause, which is not the result of any human intervention which could not be avoided by any foresight care, e.g. a fire caused by lightening.
(i) there was an imminent and immediate danger
(ii) the force employed was not out of proportion and
(iii) the force is employed only for the purpose of defence. The force should not be used by way of retaliation after the danger is over.In Illot v. Wilkes, (1820) 3 B and Ald. 304 the tresspasser his by spring gun held entitled to recover compensation as he had gone there having a notice of the existence of danger. There was volenti non fit injuria. But the result would be different if the plaintiff has no knowledge of the risk and danger involved in the trespass. It was observed that :
"The law permits the use of reasonable force to protect one's person or property. The force must be used to repeat an imminent invasion. Use of force, therefore, cannot be justified either in anticipation of some threat or by way of retaliation. The force used by way of defence should be such as it absolutely necessary to repeal the invasion."(ii) Acts causing slight harm - Nothing is a wrong of which a person of ordinary sense and temper would not complain. The law does not take account of trifles. This principle is based on the maxim "de minims cusat lex" (the law does not take account of trifles). This principle is also recognized in Section 95 of the Indian Penal Code. But this principle does not apply to offence under special or local Acts unless so made applicable by those Acts. But it should be noted that the spirit of this maxim may be applied in rendering sentence under special Acts. But it should be noted that the maxim has no application where there is an injury to a right. (a) A walks across B's field without B's leave, doing no damage. A has wronged B, because the act, if repeated, would tend to establish a claim to a right of way over B's land - Illustration to Section 26, of the Indian Civil Wrongs Bill. (b) A casts and draws a net in water where B has the exclusive right of fishing, whether any fish are caught or not. A has wronged B, because the act if repeated would tend to establish a claim or right to fish in that water. (iii) Mistake - Mistake, whether of fact or of law, is generally no defence to an action for tort. Entering the land of another, thinking that to be one's own, is trespass; driving of plaintiff's sheep amongst one's own herd is trespass, to goods; injuring the reputation of another without an intention to defame is a defamation. In Consolidated Company v. Curtis Case, (1892) 1 Q.B. 495 A gave certain goods to an auctioneer for being auctioned. The auctioneer honestly believing that `A' was the owner of these goods auctioned them. In fact, the goods belonged to another person, `B'. The auctioneer was held liable to `B' for the tort of conversion. In torts requiring malice, i.e. an evil motive, as one of the elements, such as the wrongs of malicious prosecution and deceit the liability does not arise when the defendant acts under an honest and mistaken belief. (iv) Necessity - An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. Throwing away the goods kept overboard a ship to lighten it for saving the ship or person on board the ship or pulling down a fence to stop further spread of fire are its common examples. Similarly, it would not be actionable to pull out a drowning person from water or for a competent surgeon to perform an operation on an unconscious person to save his life. But removing the goods from one place to another under the imprison that they are unsafe, this cannot be justified on the ground of necessity. If they are stolen from the place where they have now been placed the person go removing the would be liable for trespass to goods (Kirk v. Gregory, (1876) 1 Ex.D. 55.
(3) Real or Substantial Damages
(4) substantial, or ordinary, and
(5) exemplary, punitive or vindictive.
(6) Prospective damages(1) Contemptuous Damages :- Contemptuous damages are awarded when it is considered that an action should never have been brought. They are awarded usually in actions of defamation where the court finds that the defendant is in fault and plaintiff's conduct and character are such that he does not deserve to be compensated. (2) Nominal Damages :- Nominal damages are a small sum of money awarded not only by way of compensation for any actual loss suffered but merely by way of recognition of the existence of some legal right vested in plaintiff and violated by defendant. Nominal damages are recoverable only in cases of torts which are actionable per-se. If such a right is violated the law presumes damages and an action will lie even though no damage at all has in fact been suffered by plaintiff. (3) Real or Substantial Damages :- Real damages are those which are assessed and awarded as compensation for damages actually suffered by the plaintiff and not simply by way of mere recognition of legal right violated. In many cases the plaintiff's only right is not to be caused damage by the defendant and in such a case he must prove actual damage. Damage then is gist of the action. (4) General or Special Damages - General damage is that kind of damages which the law presumes to follow from the wrong complained of and which need not be expressly set out in plaintiff's pleading. Special Damages on the other hand is damages of such a kind that it will not be presumed by the law and must therefore be expressly alleged in pleadings so that defendant may have due notice of the nature of claim. (5) Exemplary or Punitive Damages - Exemplary damages are awarded whenever the wrong or injury is of a grievous nature, done with a high-hand, or is accompanied with a deliberate intention to injure, or with words of contumely and abuse. For example - Gross defamation, seduction of a man's daughter, malicious prosecution etc. In Sitaram Bindraban Firm v. Governor General-in-Council, it was held that such damages over and above the specific can be claimed if the conduct of the defendant is wilful, malicious and negligent. The object of awarding exemplary damages is to deter other persons from the commission of a similar act. In Rookes v. Barnard, it was laid down that exemplary damages can be awarded in three cases.
(i) Oppressive arbitrary or unconstitutional action by the Government servants.
(ii) Cases where the defendant's conduct has been calculated by him to make profit for himself which may well exceed the compensation payable to the plaintiff.
(iii) Where exemplary damages are expressly authorized by the Statute.(6) Prospective damages - Prospective damages are also known as Future damages. Prospective damages are those damages which are likely to result from the wrongful act of the defendant but they have not actually resulted at the time when the damages are being decided by the Court. Measure Of Damage - In an action brought by plaintiff against defendant under law of torts, plaintiff's remedy is to claim damages for violation of his right. By measure of damage, means the criterion or standard of calculation by which amount of damage may be assessed. Since each violation of right of a person cannot be equated with or assessed by monetary consideration. In considering the measures of damages predominant principle should be "Restitution in integrum". That means in calculating the damages, to which plaintiff is entitled to in respect of any injury, court is to look into the what would be a particular sum which will make good the loss suffered as money can do it and will try to make good the loss suffered by plaintiff as natural result of it. In Livington v. Reyard Coal Co., (1880) App. Cas. 25, 39. It was observed-
"Where any injury is to be compensated by damages, in setting the sum money to be given as damages, you should as nearly as possible get that sum of money which will be put the party injured in same position in which he would have been if he had not sustained the wrong for which he is now getting his compensation."Remoteness of Damage :- It is important to point out here, that abvoesaid rule i.e. to put aggrieved party to a position to which he would have been but for injury to him (violation of his legal rights) is the rule as to remoteness of damages. A plaintiff who has suffered damages in consequence of the act of defendant may be disentitled to recover compensation :
(A) Because the defendant's act was not wrongful at all.
(B) Because the plaintiff is not the person to whom defendant owe the duty which he has violated.
(C) Because damage is not a kind recognized by law.
(D) Because the damage has been caused in the manner which the law does not recognize as sufficient ground of liability.So defendant in reply to case of plaintiff shall try to bring his case in any of above category to minimize the amount of damages. In Admirality Commissioner v. S.S. Susquahauna, (1928) A.C. 655 Viscount Dunedin observed. "The Common Law says that the damages due either for breach of contract or for tort are damages which so far as money can compensate, will give the injured party separation for the wrongful act..........If there be any special damage which is attributable to the wrongful act that special damages must be accused and proved."
(d) MandatoryAn injunction which is issued at the conclusion of a trial upon the merits is known as Perpetual injunction. An injunction which is issued provisionally during the pendency of the case generally until further orders is known as Interlocutory or temporary injunction. When the defendant is forbidden to commit or to continue the injurious act, then such injunction is known as prohibitory and where the defendant is ordered to undo the evil that he has done then such injunction is known as mandatory. It should be noted that a mandatory injunction may be obtained enjoining the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in fulfilment of his legal obligation. For example - an order to pull down a building which he has created to the obstruction of the plaintiff's lights. Lastly, it should be noted that the granting of injunction is purely a matter of judicial discretion.
(A) Expulsion of trespasser
(B) Re entry in land
(C) Reception of Goods
(D) Distress damages feasant.(A) Expulsion of Trespasser - It is a well established principle of law that the rightful owner of property is entitled to use force in ejecting a trespasser. He can use legitimate force in order to repel an intruder or trespasser. The condition precedent to such right is physical possession on the part of the person claiming that right irrespective of title. A person who is entitled to the immediate possession of immovable property may expel the trespasser therefrom and re-enter it, provided that the force used by him does not transgress the reasonable limits of the occasion. In other words the force employed must not be disproportionate to the evil to be prevented. (B) Re entry in land - A person who is wrongfully dispossessed of land may retake possession of it if he can do so peaceably and without the use of force. Such person shall not be liable in an action for trespass to land. Even if he enters forcibly, he is not liable. Indian law - Under the Specific Relief Act, 1963, and in the States of Maharashtra and Gujarat, under the Bombay Mamlatdars Courts Act, 1906, if one in possession of immovable property is dispossessed, otherwise than by the course of law, he may, within six months sue to recover possession without reference to any title set up by another which is left to be determined in a separate action. (C) Reception of goods - A person entitled to the immediate possession of chattels may recover them from any person who has them in actual possession and retain them, provided that such possession was wrongful in its inception. (D) Distress damage feasant - It was a remedy by which if cattle or other things be on a man's land encumbering it or otherwise doing damage there, he may summarily seize them without legal process and retain them impounded as a pledge for the redress of the injury he has sustained. The term "distress" denotes a right to detain : "feasant" denotes an object which has done a wrong and "damage" implies the loss caused to the owner or the occupier. Where the owner of occupier of land finds cattle or any other cattles trespassing on his property and causing damage he has a right to seize and detain it and refuse to release it unless the owner pays compensation for the damage suffered to by him. There are, however certain well recognized, principles which are to be born in mind, with regard to exercise of this right -
(i) The right is vested in the occupier, in other words right of detention is available to a person who has been in immediate physical possession of property even though his title may be doubtful.
(ii) The right can not be exercised unless the object is unlawful on the land. Anything, animate or inanimate which is wrongfully on the land of another and is causing damage, may be distrained for such damage. For instance, greyhounds of ferrets chasing and killing rabbits in a warren may be distrained damage feasant. The underlying principles of this doctrine is that of recompense, which justifies a person in retaining that which occasions injury to his property till amends be made by the owner.
(iii) There must be actual damage done by the thing giving a right to compensation, for the thing is only distrainable as security.
(iv) The thing must be seized while still on the land there is no right to follow; hence, if the thing has passed out of the bounds of one's property the person aggrieved can not exercise the right of "distress".
(v) There is no right of sale but only right to detain the thing till adequate compensation is paid.
(vi) The distrainer is bound to detain the animal not at any place he chooses but at his own place, where it was seized, or in public pound.
(vii) If, inspite of destrainer's his care the animal perishes of causes loss, he will be relegated to his original rights of action to sue for damages against the owner of the offending cattle.
(viii) During detention of the thing rights of action for the damage done or suspend. Distress and action are alternative remedies which can not be simultaneously pursued.
(ix) The right to distrain can be exercised against movable object which causes damage while on the distrainer's property. As already observed, the distress must be taken at the time damage is done for if the damage is done yesterday, and the distress taken today that would be illegal. [Sorrel v. Paget, (1949) 2 All E.R. 609].In Indian the Cattle Trespass Act of 1871 deals with this matter.
(i) Breach of contract. - The maximum was applied to purely tort actions. Where the wrongful act amounted to tort as well as breach of contract the maxim was made inapplicable. In Pinchon's Case (1611) 9 Co.Rep. 86, 88B, it was held that the death was to discharge of contract and it would be great defect if no remedy was given for breach of contract. This enabled the executors of a passenger, who was injured due to negligence of a railway company and died, tore over damages.
(ii) Wrongful appropriation of another's property. - The rule did not apply where the tort resulted in wrongful enrichment of wrongdoer's property.Exceptions under Indian Law (i) Fatal Accidents Act 1855. - Fatal Accident Act, 1855 was enacted on the lines of English Fatal Accidents Act 1846. Under this act if the death of a person is caused by wrongful act neglect or default which would have entitled him to maintain an action and recover damages in respect thereof the party causing injury is liable to an action for damages (although the death is caused under such circumstances as amount in law to felony). (ii) The Indian Carriage by Air Act 1934. - Section 2(4) provides that notwithstanding anything contained in the Indian Fatal Accidents Act 1855 or any other enactment of rule of law in force in any part of India, the rules contained in the First Schedule shall in all cases to which those rules apply, determine the liability of a carrier in respect of the death of a passenger and the rules contained in the Second Schedule shall determine the persons by whom and for whose benefit and the manner in which such liability may be enforced. Clause 17 of the First Schedule provides that, the carrier is liable for damage sustained in the event of death or wounding of a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course; of any of the operations of embarking or disembarking. Clause 1 of the Second Schedule provides that the liability shall be enforceable for the benefit of such of the members of the passenger's family as sustain damaged by reason of his death. (iii) Employer's Liability Act, 1938. - Provisions of Employer's Liability Act, 1938 contemplate suits for damages for personal injuries resulting in death. (iv) Workmen's Compensation Act, 1923. - Workmen's Compensation Act, 1923 also makes provision for compensation to dependants, as defined is Section 2 of the Act, for a workman's death resulting out of and in the course of employment.
"The doctrine of vicarious liability has not grown from any very clear, `logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement is answerable to the world at large for all the torts committed by his servants within the scope of it."-(3) Liability for the Acts of Others ; The liability for other's wrongful act or omission may arise in one of the following ways:-
(a) Liability arising out of special relationship;
(b) Liability by abetment, and
(c) Liability by ratification.(a) Liability arising out of special relationship. - Where the defendant stands to the wrongdoer in a relation which makes the former answerable for wrong committed by the other though not specifically authorised, e.g. Master and Servant, Principal and agent, Firm and Partners, guardian and ward, Company and its directors etc. (b) Liability by abetment. - A person who abets a tortious act is equally liable with the one who commits the torts. Thus a person is deemed to be responsible for the consequences of an act if he -
(i) knowingly for his own benefit induces another to commit a wrong; or
(ii) By the use of illegal means directed against a third party induces a person to do an act which is detrimental to that third party although the person induced may be entitled to do that act.(c) Liability by ratification. - If one person commits a tort assuming the act on behalf of another but without any authority and that other subsequently ratifies and assents to that act he thereby becomes responsible for its becomes his act. "The person ratifying the act is bound by the act whether it be to his detriment or advantage. Such an act becomes the act of the principal in the same way as if it were done with his previous authority, according to the maxim, "aminio retihabitio retrotrahituret mandato priori acqui paretur" (every ratification of an act relates back, and thereupon becomes equivalent to a previous request). On the same principle agency is established by ratification and the principal is held liable for ratified acts. There are, however, three conditions which have to be satisfied before one person can be held liable for another's tort on the ground of ratification :-
(i) Only, such acts bind a principal by subsequent ratification as were done at the time on his behalf. What is done by a person on his own account can not effectually adopted by another.
(ii) The person ratifying the act must have full knowledge of its tortious character.
(iii) An act which is illegal and void cannot be ratified.
Q. 20 "The Vicarious Liability of Master does not depend on the lawful or unlawful nature of acts of servant and the master would be liable for alleged act of the servant which had taken place in course of his employment even though the servant may have acted in contravention of some provisions of the Law." - Explain and illustrate the above statement.
(i) The tort was committed by his `servant'.
(ii) The servant committed the tort in the course of his employment.For the purpose of vicarious liability even a friend, driving my car for me, will be my agent. In Ormorod v. Grisiville Motor Service Ltd., (1653) 2 All E.R. 753, the owner of a car asked his friend to drive his car. While the car was being (sic) collided with a bus. The owner of the car was held liable. In Pushpabai Purushottam Udeshi's case, AIR 1977 SC 1735 Supreme Court, summed up the law on vicarious liability of master for the acts of servant and enlarged the scope of liability of master for acts of his servant. While relying upon the judgment in Sita Ram Motilal Kalal's AIR 1966 SC 1697 has held that owner is not only liable for the negligence of the driver if that driver is acting in the course of his employment but also when the driver is his servant acting in driving the car on owner's business or for owner's purpose. The ambit of the vicarious liability of the owner for the acts of the servant committed in the course of the employment was further enlarged by the Supreme Court in State Bank of India v. Mrs. Shyama Devi, AIR 1978 SC 1263 that a master is liable for his servant's fraud perpetrated in the course of master's business, whether the fraud was for the master's benefit or not, if it was committed by the servant in the course of his employment approved. There is no difference in the liability of a master for wrongs whether for fraud or any other committed by a servant in the course of his employment, and it is a question of act in each case whether it was committed in the course of the employment. From the principle enunciated in the above noted two decisions of the Supreme Court on the question of vicarious liability of the master, it is evident that it does not depend on the lawful or unlawful nature of the acts of the servant and the master would be liable for the alleged act of the servant which had taken place in the course of his employment even though the servant may have acted in contravention of some of the provisions of the statute or the Rules made there under.
(i) Agency Liability
(ii) Vicarious Liability
(iii) Joint or Common action.(i) Agency Liability :- Whenever one person employs another to do an act which amounts to a tort or where one person authorizes or procures another to commit a tort, the law imputes the wrong to both of them and the principal and agent are jointly and individually responsible for the act of the agent. For Example - Where the writer of a defamatory subject matter send it to the publisher of a newspaper for publication of that material, he has been held to be jointly liable with publisher for its publication in the newspaper although he may be severally liable for defamation also. Vanguard Fire and General Insurance Co. v. Sarla Devi (AIR 1959 Punjab 297). (ii) Vicarious Liability - Where a person commits torts under circumstances which makes another person vicariously liable for the wrong, both are deemed to be joint tort-feasor. For example - master and servant. (iii) Joint or common action - Persons who join together in some form of common action become responsible for the tort which is committed in the course of it, no matter what part each, may take, so long as there is concerted action. If should be noted that if independent acts of several persons cause the same damages, they are not joint tort-feasors and could not be joined as defendants.
"That the decision does not appear to be founded on any principle of justice, equity or even public policy which may justify its extension."The reason of rule was that a wrong doer must himself bear consequences of committing a tort, and cannot enforce an agreement express or implied to share the loss or profit of an unlawful undertaking, or to be indemnified against its consequences. Exceptions - The principle of Merryweather v. Nixon did not apply :
(i) To cases of negligence, accident, mistake, other unintentional branches of the law. [Palmuer v. Wick and P.S.S. Co., (1894) A.C. 318].
(ii) To cases of indemnity, where one man employed another to do acts, not unlawful in themselves but for the purpose of asserting a right. [Burrows v. Rohdes, (1899) 1 Q.B. 816].
(iii) Where one party induced another to do an act, which was not legally supportable, and yet was not actually in itself a breach of law, the party so inducing was answerable to the other for the consequences. [Betts v. Gibbons, (1834) 1 A and E 7].
(iv) To admiralty action in cases of collision. - In such action the damage caused to vessel by the collision of another vessel was equally borne by the two vessels. [The Frankland, (1901) 17 TLR 419].
(v) To the right of contribution between directors or promoters. - Who were jointly and severally liable for misrepresentation contained in prospectus.The rule in Merryweather v. Nixon has been abolished by the Law Reforms (Married Women and Tort-feasors) Act, 1935. The Act provides that a tort- feasor may now recover contribution from any other tort-feasor, who is liable in respect of the same damage, whether as joint tort-feasor or otherwise. No person shall be entitled to recover contribution from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
"The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is duty to take care and where failure in that duty has caused damage. In such circumstances careless assumes the legal quality of negligence and entails the consequences in law of negligence."Essentials of Negligence. - Following are the ingredients of a tort of negligence -
(1) that the defendant owned a duty to take care;
(2) that the duty of the defendant to take care was towards plaintiff;
(3) that there was breach of that duty on the part of the defendant; and
(4) consequential damages to the plaintiff.
(i) In an action against bailees for loss of or damages to goods entrusted to them - Where a bailee in violation of his contract omits an important precaution necessary for the safety of the thing bailed to him and which, if adopted would probably have prevented the loss, it is for the bailee to explain the loss himself and if he cannot satisfy that it occurred from some cause independent of his own wrong doing, he must make good that loss.
(ii) In an action against carries by land or sea and railway companies for loss of or damage to goods entrusted to them - An obligation to sake a high- degree of care attaches to carriers, and it costs on them the duty of exercising of all vigilance for the safe conveyance of their passengers in a fit and proper order. The burden of proving exercised of due care and skill lies on the defendant.
(iii) Cases where the fact proved or admitted amount to prime facie evidence of negligence, the burden shifts to the defendant to rebut those points.
(iv) Cases were the mere fact of injury of the accident is prima facie evidence of negligence [(i.e., Res ipsa loquitur - (the things speaks itself].It should be noted that now the trend of legislation has changed and in accident case there is no fault liability.
1. The event which caused the accident must have resulted within the control of the defendant :
2. The mere occurrence of the event must raise of itself a reasonable inference that the defendant or his servant or agents have been negligent.
3. Absence of any explanation how the accident occurred by the defendants.In other words the Maxim res ipsa loquitur applies wherever it is so improbable that such an accident would have happened without the negligence of the defendant that a court could find without further evidence that it was so caused. In Pillutla Savitri v. Gogineni Kamalendera Kumar, AIR 2000 A.P. 467 a practising Advocate aged 57 years died due to fall of unauthorised construction made by defendant. Court held that principal of `Res ipsa Loquitur' is attracted and observed -
"This being an action in tort for damages on the ground of negligence, legal burden of proof rests on plaintiff. It is not, however always necessary that direct proof negligence on the part of defendant, should be adduced by the plaintiff. It is enough if they prove the circumstances from which a reasonable inference of negligence on the part of defendant, can be drawn. Negligence is not a question of evidence but it is an inference to be drawn from proved facts.........The mere happening of the accident itself may be more consistent with the negligence on the part of defendant than with other causes and that is so, court finds negligence on the part of defendant unless he gives a reasonable explanation to show how accident may have occurred without negligence on his part. This maxim is known in legal parlance as `Res ipsa loquitur'. The general purport of the words `Res ipsa loquitor' is that accident speaks for itself or tells its story. The burden on proof will be on defendant to explain and to show that the accident occurred without any fault on his part. It is not a rule of law but a rule of evidence relating to burden of proof."
"Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."Thus, if in an accident the plaintiff is as much at fault as the defendant the compensation to which he would otherwise be entitled will be reduced by 50%. In India there is no legislation corresponding to the Law Reform (Contributory Negligence) Act, 1945 of England. It is still an open question whether Contributory Negligence will be a complete defence or damages recoverable will be proportionately reduced in accordance with the guilt of the parties. The Contributory Negligence Act, gives us the rule to be applied when contributory negligence of the parties has been found. Whether there has been actually a contributory negligence or not has to be decided by the common law rules. The following points have therefore, to be noted in this connection :-
1. Negligence of the plaintiff in relation to the defence of contributory negligence does not have the same meaning as is assigned to it as a tort of negligence. Here the plaintiff need not necessarily owe a duty of care to the other party. What has to be proved is that the plaintiff did not take due care of his own safety and thus contributed to his own damage. Thus "all that is necessary to establish (Contributory Negligence) is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury.
2. It is not enough to show that the plaintiff did not take due care of his own safety. It has also to be proved that it is his lack of care which contributed to the resulting damage. If the defendant's negligence would have caused the same damage even if the plaintiff had been careful and the plaintiff's negligence is not the operative cause of the accident the defence of contributory negligence cannot be pleaded. For example, a motor cyclist is negligent in going on the road without proper brakes and the defendant aiming at a bird negligently shoots and injures the plaintiff, the plaintiff's negligence here cannot be considered to be contributory negligence for his injury by the defendant.
(i) If a person keeps another's goods on his own land the other person may enter and retake them.
(ii) If cattle escapes to another's land through the latter's failure to repair a hedge which he is bound to repair; the owner of the cattle may enter and drive them out.
(iii) A landlord may enter his tenant's house to distrain for rent; but they may not break open outer door of the house.
(iv) A reversioner of land may enter in order to see that no waste is being committed.
(v) The grantee of an easement may enter upon the servient tenement in order to effect necessary repairs.
(vi) A person may enter upon the land under authority of a statute or in exercise of public right.
(vii) A person may also enter the land upon the ground it belongs to him and that he is entitled to its immediate possession.What must be proved in an action for trespass. - There are two things which the plaintiff must prove to an action for trespass in case of immovable property :-
1. That he was in actual possession at the time of trespass; he must have effective possession and not mere user.
2. That there was direct interference with the possession of his land, though there is no need to prove damage since trespass is actionable per se.
(1) Trespass To Goods
(2) Trespass ab initio
(4) Conversion.(1) Trespass To Goods - Trespass to goods is wrongful direct physical interference with the possession of them, viz. throwing stones on car, shooting birds, beating animals, removing or injuring or destroying goods, infecting the animals with disease or chasing animals to make them run away from its owner's possession. The plaintiff must at the time of trespass have the present possession of goods, either actual or constructive (e.g. an agent, a bailee), or a legal right to the immediate possession (the proof of title to the goods not required). But when the owner has given up his possession, for instance, by pledging the goods or giving them to another person under a hire-purchase agreement such a right cannot be exercised. The wrong may be committed intentionally, negligently, or even by a honest mistake. In Kirk v. Gregory (1876) 1 Ex D 55, on A's death his sister-in-law removed some jewellery from the room where his dead body was lying to another room under a reasonable but mistaken belief that the same was necessary for its safety. The jewellery got stolen. A's sister-in-law was held liable for the trespass of jewellery. (2) Trespass ab initio. - When entry, authority or licence is given to anyone by law and he abuses it, he shall be a trespasser ab initio that is, the authority or justification is not only determined, but shall be trespass as if it never existed. In other words, the doctrine is that the authority, having been abused by doing a wrongful act under the cover of it, is cancelled retrospectively so that the exercise of it becomes actionable as a trespass. In Chic Fashions Ltd. v. Jones, certain police officers after having obtained warrant to search the plaintiffs shop for certain stolen goods entered the shop but did not find these goods. However, they seized certain other goods which they reasonably but enormously believed to have been stolen. It was held that the seizure of those goods was lawful and no issue of trespass ab initio was raised. Conditions. - Two conditions must, therefore, be satisfied before applying the doctrine of trespass ab anitio :-
(a) The authority to enter must have been given by law or statute and not by an individual,
(b) The subsequent act must be misfeasance. The defendant must have committed a misfeasance that a positive wrongful act and not a mere non- feasance that is a mere omission.Six Carpenter's case, (1610) 8 Co. Rep. 146a - The proprietor of an inn brought an action for trespass against six carpenters who refused to pay money of a quarter of wine in his inn. The question was whether in such circumstances their failure to pay for the wine could be treated as a misfeasance which would make their original entry into the inn unlawful as a trespass. It was held that the men did not become trespassers ab initio because there was mere non-feasance in refusing to pay. In this case three points were laid down :-
(i) That if a man abuses an authority given to him in law, he becomes a trespasser ab initio.
(ii) That in an action of trespass, if the authority be pleaded, the subsequent abuse may be replied.
(iii) That a mere non-feasance does not amount to such an abuse as renders a man trespasser ab initio.(3) Detinue - Detention is the adverse withholding of the goods of another. Detinue is an action under which the plaintiff can recover the goods from the defendant when the same are being wrongfully detained by the latter. The injury complained of is not the taking, not the misuse and appropriation of the goods but only the detention. The action for detinue is based upon a wrongful detention of the plaintiff's chattel by the defendant, evidenced by a refusal to deliver it upon demand and the redress claimed is not damages for the wrong but the return o the chattel or its value. However, the damages for wrongful detention could also be claimed additionally. If the original possession is lawful but subsequently the goods are wrongfully detained, an action for detinue can be brought. Thus, if a bailee refuses to deliver the goods after the bailment is determined he is liable in detinue. It may be noted that trespass de bonis asportatis, i.e, wrongful taking of goods is wrongful ab initio, whilst in detinue possession is acquired rightfully but detention of the goods is wrongful. Thus in an action for detinue the defendant assumes the possession of the goods whereas there could be a trespass to the goods while the same continue to be in the plaintiff's possession. In an action for detinue the plaintiff must prove that he is entitled to possession of the goods, and that he demanded the goods from the defendant, but the defendant refused to deliver them and detained them. A lien on the goods by the defendant is a good answer (justification). It may be noted that when the goods are returned to the plaintiff in a damaged condition, the remedy of detinue is of no help to the plaintiff. (4) Conversion - Conversion (also called `Trover') consists in wilfully and without any justification dealing with goods in such a manner that another person, who is entitled to immediate use and possession of the same, is deprived of them. It is dealing with the goods in a manner which is inconsistent with the right of the owner. "A person who treats goods as if they were his when they are not, is liable to be sued in conversion." (Prof. Winfield). A conversion is an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. These are three distief methods in which one may be guilty of conversion -
(1) by wrongly taking if;
(2) by wrongfully detaining; and
(3) by wrongly disposing of if,It should be noted that mere detention in sufficient to constitute the tort of conversion. Essentials - To constitute conversion, two ingredients are required :
(i) A wilful interference with the chattel, inconsistent with the rights of the persons entitled to it.
(ii) An intention in so interfering to deny those rights, or to assert rights adverse to the plaintiff's right.Thus it is wrongful taking or destroying of goods. More detention is sufficient to constitute the tort of conversion. It may be interference with ownership as well as possession. It is always something inconsistent to the right of the plaintiff. Conversion may take place in the following manners -
(a) By taking possession in a wrongful manner, or
(b) By illegal or wrongful delivery, or
(c) By selling property in wrongful manner, or
(d) By destroying property, or
(e) By detaining property in wrongful manner, or
(f) By interference in the title of property.
(3) False imprisonment.(1) Assault. - According to Prof. Winfield "assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant." Arnould, C.J. defined "Assault" in a case as under :
"Any gestures calculated to excite in the party threatened a reasonable apprehension that the party threatening intends immediately to offer violence, or, in the language of the Indian Penal Code, is, `about to use criminal force' to the personal threatened, constitute if coupled with a present ability to carry such intention into execution is an assault in law."An assault may be defined as "the unlawful laying of hands on another or an attempt to do a corporeal hurt to another coupled with present ability and intention to do the Act." As Sir Fredrick Pollock rightly observed, "the essence of the wrong assault is putting a man in present fear of violence, so that any act fitted to have that effect on a reasonable man may be an assault." Mere verbal threat is no assault, nor is a threat consisting of gestures, unless there be an immediate intention and present ability to carry it out. Thus for the commission of assault following elements are essential -
(i) Some preparation or gesture constituting a threat or force.
(ii) A reasonable apprehension of the use of force.
(iii) Ability or capacity of the defendant to carry out threat.(2) Battery :- A battery may be defined as actual striking of another person or touching him in rude, angry or hostile manner. Battery is actual application of force to the person of another done without justification in rude and angry manner. Therefore in order to constitute a battery, there must be actual contract with the person of other. It does not matter whether the force used is applied directly or indirectly to a human body itself. According to Prof. Winfield - Battery is the intentional application of force to another person. Essential Ingredients of Battery - The following are the essential ingredients :
(i) the force must have been used to the plaintiff either to his body or bringing an object with his body.
(ii) that the force must have been used intentionally. Therefore, touching a person merely to call his attention or jostling one another in a crowd is not a battery. A friendly clap on the back of a person may be excused on the ground of implied consent but not the hostile or rude hand.Difference between Assault and Battery
(i) Battery includes assault. But assault does not include Battery.
(ii) In case of assault, actual contact is not necessary while it is necessary in case of battery. But every laying on in hands is not a battery. The party's intention must be considered. In the words of Sir Fredrick Pollock -
"The application of unlawful force to another constitutes the wrong called battery an action which puts another of instant fear of unlawful force, though no force be applied, is the wrong called assault."
(iii) An assault is an attempt of battery.(3) False imprisonment. - The tort of false imprisonment has been defined as `Every restraint of the liberty of one person by another is in law an imprisonment and if imposed without lawful cause, is a false imprisonment which is both a criminal offence and an actionable fort'. According To Prof. Winfield False "imprisonment is infliction of bodily restraint which is not expressly or impliedly authorised by law."
(a) Firstly the force used was not unnecessary, and
(b) Secondly it was not disproportionate to the evil to be prevented.In Race v. Taylor, (1835) 4 N and M 469 it was held that it would not be justification of an assault or battery, if the force used was disproportionate. The defendant must not reply to the plaintiff's assault or trespass with a force and spirit altogether disproportionate to the provocator. (ii) Defence of Property - Assault in defence of the possession of a house of goods and chattels is justifiable, provided that no more force is used than is reasonably necessary. (iii) Expulsion of trespasser - If a man enters into the house or land of another without permission and with force and violence, the owner of the house or land is justified in turning him out without a previous request to depart and may use such force as is necessary. But if the trespasser enters quietly, he must be first requested or retire before any force is used to turn him out. But it should be noted that the force used by the defendant must be reasonable and should not be disproportionate to the evil to be prevented. (iv) Retaking of goods - The rightful owner may justify an assault in order to repossess or retake the land or goods which are wrongful in possession of another who refuses to deliver them upon request so long as no unnecessary violence is used. (v) Exercise of Parental or quasi-parental authority - Assault or battery may be justified on the ground that it was done in exercise of parental or quasi-parental authority. In other words a reasonable force may be used for correction of a pupils child etc. provided that the force is not excessive or unreasonable. But it should be noted that a husband has, however, no such right over his wife.
(a) right belonging to him as a member of public when it is a public nuisance, or
(b) his ownership or occupation of land, or some easement, quasi- easement, or other right used or enjoyed in connection with land, when it is private nuisance."Kinds of Nuisance :- Nuisance is of two kinds -
(i) Public or Common Nuisance
(ii) Private Nuisance.Public nuisance is an offence (Section 268 IPC) whereas private nuisance is tort or civil wrong. 1. Public Nuisance - A public nuisance can be defined as an unreasonable interference with a right common to general public. Obstructing a public way by digging a trench, carrying on trades which cause offensive smells or intolerable noises, etc. are examples of public nuisance. Thus, the acts constituting public nuisance are all of them unlawful acts; those which constitute private nuisance are not necessarily or usually unlawful. Public nuisance does not create a civil cause of action for any person. In order that an individual may have a private right of action in respect of a public nuisance -
(i) He must show a particular injury to himself beyond that which is suffered by the rest of public. He must show that he has suffered some damage more than what the general body of the public had to suffer.
(ii) Such injury must be direct, and not a mere consequential injury; as, where one way is obstructed, but another is left open.
(iii) The injury must be shown to be of a substantial character.Thus, in order to sustain a civil action in respect of a public nuisance, proof of special and particular damage is essential. In Campbell v. Paddington Corpn. (1911) 1 K.B. 869, an uninterrupted view of the funeral procession of king Edward VIII could he had from the window of the plaintiff's building. The plaintiff accepted certain payments from certain persons and permitted them to occupy seats in her building. Before the date of the said procession the defendant corporation constructed a stand on the highway in front of the plaintiff's building which obstructed the view from the plaintiff's building. The plaintiff thus deprived of the profitable contract of letting seats in her building. She filed a suit against the Corporation contending that the stand was a public nuisance and had caused special loss to her. Held that she was entitled to claim compensation. (2) Private Nuisance : Definition. - Private Nuisance may be defined as unlawful interference with a person's use or enjoyment of land or of some right over or in connection with it. According to Underhill, a Private Nuisance is some unauthorised use of man's own property causing damage but not amounting to trespass. `Underhill' has defined `Private Nuisance' as - `A private nuisance is some unauthorised user of man's own property cause damage to the property of another or some unauthorised interference with the property or proprietary right of another causing damage, but not amounting to trespass." Elements of Private Nuisance. - Following are the essentials of private nuisance :- (1) Unlawful interference. - The kind of interference or annoyance are limitless. Where in hammering the metal sheets for rendering them thinner, huge noise was created which was evident from the facts on record, it was held by the court that a case of private nuisance is established, there is no necessity of taking an expert opinion in such cases. Such interference should be unreasonable or unlawful for amounting to nuisance. (2) Such interference is with the use or enjoyment of land or some right over, or in connection with land, or (3) Damage. - Specific damage must be shown. But in cases where the nuisance concerns something other than physical damage to property, damage will sometime be presumed. Kinds of Private Nuisance :- Private nuisance is of two types:-
(A) Those causing damage to property.
(B) Those causing personal discomfort.(A) Damage To Property - In case of damage to property, any sensible injury will be sufficient to support an action, Nuisances of such kind arise by manufacturing works, drains etc. In Goldman v. Hargrave (1967) 1 A.C. 654 - Appellant owned and occupied land adjacent to that of the respondent. A redgum tree was struck with lightening and caught fire. Appellant called a tree feller, who cut the tree but no steps were taken to extinguish the fire, in the meantime, because of wind, fire spread to respondent's property because of fire in the tree which caused great damage. It was held that appellant's action involved foreseeable risk of revival and spread of fire, accordingly, Appellant was held liable for the nuisance of causing damage to property of respondent because of failure to take effective steps to prevent spread of fire from tree. Putting an embankment across a natural flow of water channel is treated to be a nuisance as it resulted in diversion of water flow. Which ultimately resulted into damage to the plaintiff's property. (Guhirman Gope v. Uday Chand, AIR 1963 Pat 455). (B) Physical Discomfort. - In the case of physical discomfort, the act complained of must be :
(a) In excess of the natural and ordinary course of enjoyment of the property, that is to say, the inference must be with the enjoyment of use of land.
(b) Materially interfering with the ordinary comfort of human existence.(a) In excess of the natural and ordinary course of enjoyment of the property. - The interference must be with the enjoyment or use of land. In order to be able to bring an action for nuisance to property the person injured must have either a proprietary or possessory interest in the premises affected by the nuisance. A person who has the mere use of the premises although he has suffered direct personal and pecuniary damage from the nuisance, cannot being an action for the wrong. The plaintiff must prove injury to his proprietary or possessory right. (b) Materially interfering with the ordinary comfort of human existence. - The following factors are material in deciding whether the discomfort is substantial :-
(i) Its degree or intensity;
(ii) Its duration;
(iii) Its locality
(iv) The mode of user of the property.In Kuldip Singh v. Subhash Chander Jain, AIR 2000 SC 1410 - Plaintiff and defendant were neighbours. Defendant constructed a bhatti (Baking oven) in his premises. He also applied to Municipal Corp. seeking grant of licence to run the bakery. Plaintiff raised protest and filled suit seeking an injunction restraining defendant from operating the "Bhatti" and also against Municipal Corp. restraining it to from issuing licence to defendant, on ground of private nuisance by personal discomfort. It was observed -
"A nuisance actually in existence stands on a different footing than a possibility of nuisance or a future nuisance. An actually existing nuisance is capable of being assessed in terms of its quantum and the relief which will protect or compensate the plaintiff consistently with the injury caused to his rights is also capable of being formulated. In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The Court may not require proof of absolute certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff. In other words a future nuisance to be actionable must be either imminent or likely to cause such damage as would be irreparable once it is allowed to occur. There may be yet another category of actionable future nuisance when the likely act of the defendant is inherently dangerous or injurious such as digging a ditch across a highway or in the vicinity of a children's school or opening a shop dealing with highly inflammable products in the midst of a residential locality."Difference Between Public and Private Nuisance - The distinguishing features of Public nuisance and Private nuisance are as follows :
(1) As to nature of the right violated. - A public or common nuisance affects the public at large or some considerable portion thereof, whilst a private nuisance affects only one person or a determinate body of persons. In other words, while a public nuisance is an offence against public rights, safety or convenience, a private nuisance is a violation of a private right of a person to the comfortable occupation of property.
(2) As to who can sue. - Public nuisance does not create a civil cause of action for any person. An action cannot be maintained by a private individual in his own name in respect of a public nuisance except under the three circumstances mentioned above. Private nuisance, on the other hand, is actionable at the suit of any person in possession of land who is injured by reason thereof.
(3) As to acquisition of right of nuisance. - While no length of time can legalize a public nuisance, a right to create or continue private nuisance may be acquired by prescription.
(4) Abatement. - While a private nuisance may be abated by the person injuriously affected thereby, a public nuisance cannot be so abated by him.
(5) Remedies available. - An action for damages lies in respect of a private nuisance but not in respect of public nuisance, unless the plaintiff has sustained a special damage. In case of a public nuisance, the action generally is for declaration and injunction.Public nuisance is actionable as well as indictable, while private nuisance is only actionable. In some cases a private and public nuisance may concur, e.g., a trade causing offensive noises or smells injurious to the neighbour as well as the general public, obstruction of a highway resulting also in loss of access to occupiers of adjoining property. Remedies For Nuisance :- The remedies available for person aggrieved of nuisance are three :-
(3) Injunction.In Kuldeep Singh v. Subhash Chander Jain, AIR 2000 SC 1410 - It was observed that remedies for private nuisance are (1) Abatement (2) Damages and (3) Injunction. In order to obtain an injunction it must be shown that the injury complained of as present or impending is such as by reason of its gravity or its permanent character or both, cannot be adequately compensated in damages. If the injury is continuous the court will not refuse an injunction because the actual damage arising from it is slight.
"We think that the true rule of law is, that the person who for his own purposes brings on his lands 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."Thus in this case the following principles were laid down by Blackburn, J.
1. If a person brings dangerous substance upon his land which commits mischief and injures the neighbour, the person who brings dangerous substance is answerable even if he was not negligent.
2. In case of strict liability a person shall be held responsible even if he was not negligent.
3. A person may use his land in natural way. But if he constructs something upon that land which commits mischief, the person who does some thing upon his land shall be responsible. This rule is technically known as principle of strict liability which was laid down in Ryland v. Flecther.The rule of strict liability has been approved and followed in many subsequent decisions in England. A recent decision in recognition of said doctrine is rendered by House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Pl. 1994(1) All Eng. Law Reporters (HL) 53. Said principle gained approval in India. A Constitution Bench of Supreme Court in Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 and Division Bench in Gujarat State Road Transport Corp. v. Raman Bhai Prabhat Bhai, AIR 1987 SC 1690 had followed the principle of Rylands v. Fletcher. In M.C. Mehta v. Union of India, AIR 1987 SC 1086 Supreme Court had even gone beyond the rule of `strict liability' by holding that "Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in operation of such activity, the enterprise is strictly and absolutely liable to compensate those who were affected, by accident, such liability is not subject to any of the exceptions to principle of strict liability under the rule in Rylands v. Fletcher." So strict rule liability was converted into absolute liability. Recently Supreme Court in M.P. Electricity Board v. Shail Kumar, AIR 2002 SC 551 while relying on judgment of Supreme Court in W.B. Electricity Board v. Sachin, AIR 2000 SC 3629 had held that the responsibility to supply electric energy in particular locality is statutorily conferred on Electricity Board. If energy so transmitted cause injury or death of a human being who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of supplier of the electric energy on the principle of `Strict Liability'. Exceptions To `Strict Liability Rule' Following are exceptions to the rule of `Strict Liability' as recognised by Rylands v. Fletcher and some other subsequent decisions - (i) Damage due to natural user of the land - If a person uses his land in a very natural manner but on account of such use his neighbour suffers, the natural user of the property shall not be responsible. In Ryland v. Fletcher it was held by the court that it is not every use to which the land is put that brings the rule in operation. Growing ordinary trees, erecting houses, bringing gas, electricity or water on land for the purpose of ordering domestic supply are the example of natural use of the land. Lawrence, L.J. in Barlett v. Tottenham, (1932) Ch. 131, laid down the principle relating naturally on land as under -
"Broadly the rule in Ryland v. Fletcher applies only things artificially brought or kept upon the defendant's land, and has no application to things which are naturally there. Even in the case where things are artificially brought or kept upon the defendant's land, question may arise whether the defendant is liable to his neighbour for their escape if he is only putting his land to `its natural use."(ii) Consent of the Plaintiff - Where the plaintiff has expressly or impliedly consented to the presence of the source of danger for common benefit of the plaintiff and defendant, the rule in Ryland v. Fletcher will not apply. For example - in Cortirs v. Taylor 1871 L.R Ex. 217 - the defendant was the plaintiff's landlord and was living in the upper storey. The defendant maintained a rain-water box for the benefit of both of himself and the plaintiff. Some rats gnawed the rain-water box with the result the water escaped and damaged plaintiff's goods below. It was held that - as the water box was maintained by the defendant with the consent of the plaintiff, no action would lie. (iii) Things not essentially dangerous - If such things are brought upon the land which are not essentially dangerous then the rule of strict liability shall not apply. (iv) Negligent Plaintiff - The rule does not apply where the escape is due to the plaintiff's negligence or default and the defendant excuses himself by showing that the default was of the plaintiff. In Eastern and S.A. Telegraph Co. Ltd. v. Capetown Tramways Co. Ltd., (1902) A.C. 81 the defendants stored electricity for the purpose of running their tramways. Some of this electricity escaped and interfered with and injured sensitive apparatus. It was held that the defendants were not liable as minimum damage that had been sustained was caused due to super-sensitivity of their equipment. (v) The Act of a Stranger - Where escape is caused by the wrongful act of a third party or stranger over whom the defendant has no control the rule does not apply. In Perry v. Kendricks Transport Ltd., (1956) W.L.R. 85, the defendants parked their couch in their park which was bordered with some waste land. The defendants removed the petrol from the couch but during their operation a small boy threw a lighter match to petrol tank which resulted in explosion. An infant plaintiff who was crossing the waste land was severely burned. It was held that - defendants were not liable for his injuries under rule in Ryland v. Fletcher because explosion was resulted due to an act of stranger. (vi) Statutory authority - The rule does not apply where the defendant is empowered or authorized or required under the law to accumulate, keep or collect the dangerous thing which escape or cause mischief and injure the plaintiff. In Green v. Chelsea Waterworks, (1894) 70 L.T. 547 - the defendants were authorized by statute to store water for the purpose of supply to the city. Owing to some accidental cause, the water escaped and caused injury to the plaintiff. The defendants were held not liable on the principle of Rylands v. Fletcher because the defendant was authorized by statute to store water for the purpose of supply to the city. (vii) Act of God or Vis Major (recognised in Rylands) - If the escape has been unforeseen and because of supernatural forces without any human intervention the defence of act of God can be pleaded. Thus, storm, tempest, lightning, extraordinary rain fall, etc. fall under the category of act of God. The phrase vis major means something abnormal i.e. the property by the act of God has been rendered useless. Before an act of God may be admitted as an excuse, the defendant must himself have done all that he is bound to do. The mere fact that vis major coexisted with or followed on the negligence is no adequate defence. If the embankments of ornamental lakes give way due to extraordinary rainfall the person so collecting the water would not be liable under the rule (Nicholas v. Marsland). But in Greenock Corpn. v. Caledonian Railway (1917) AC 556, the court held otherwise. In that case the Corporation obstructed and altered the course of a stream by constructing a paddling pool for children. Due to extraordinary rainfall a great volume of water which would normally have been carried off by the stream overflowed the pad and caused damage to plaintiff's property. Held that the rainfall was not an act of God and the Corporation was liable as it was their duty "so as to work as to make occupiers on a lower level as secure against injury as they would have been had nature not been interfered with."
(i) If an enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident (including indemnification of all those who suffer harm in the accident) arising on account of such hazardous or inherently dangerous activity as an appropriate item of its over-heads. Since the persons harmed would not be in a position to isolate the process of operation from the hazardous preparation of substance that caused the harm, the enterprise must be held strictly liable for causing such harm as part of the social cost for carrying on the hazardous activities.
(ii) The enterprise alone has the resources to discover and guard against hazards or dangers and to provide warning against potential hazards.Measure of compensation (quantum of damages) The court also laid down that the measure of compensation payable should be correlated to the magnitude and capacity of the enterprise, so that the compensation can have the deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it.
(i) to take due care to avoid harm to another.
(ii) to give warning in particular cases of the danger.
(iii) to take precaution in other case against harm resulting from the interference, wilful, careless or otherwise of third person,Underhill sums up the rules of liability as under :
(i) In the case of articles dangerous in themselves such as loaded firearms, poisons, explosives and such other things there is a particular duty imposed on those who send forth, mark or leave about such articles to take precautions that they shall not do damage to persons who may come in contact.
(ii) A person who without due warning supplies to others for use an instrument or things which to his knowledge, is in such a condition as to cause danger not necessarily incidental to the use of such instrument or thing is liable in damage caused thereby -
(iii) If damage is done by reason of neglect of such precautions or warning, it is no excuse that the damage would not have happened but for the intermeddling of some third person, if such intermeddling is such as might naturally occur; and
(v) But if the immediate cause of damage is the conscious act or volition of some third person, that is a defence, for no precaution avail against such conscious act or volition.
(1) Libel and
(2) Slander(1) Libel - A libel is a publication of a false and defamatory in some permanent form tending to injure the reputation of another person without lawful justification or excuse. Following are the essential ingredients of libel -
(a) The statement must be false. It is important to point out that falsity of the statement is presumed in favour of plaintiff and onus lies on defendant to prove that it is true.
(b) It must be in permanent and visible form e.g. writing, printing, picture effigy or statute. In a cinema film not only the photographic part is considered to be libel but also the speech with synchronises with it is also a libel.
(c) It must be defamatory.
(d) It must be referred to Plaintiff
(e) It must be published.(2) Slander - A slander is a false and defamatory, verbal oral statements in transitory form intending to injure the reputation of another without lawful justification or excuse. It should be noted that if defamatory words are uttered with the intention that they shall be recorded the utterance of those words is slander only but when record has been made and published, the manufacturer would be liable for Libel. Essential Ingredients of Slander - The following are the essential ingredients of slander :
(a) The matter complained of must be defamatory, that is, the matter complained of must have lowered the plaintiff in the estimation of others or has caused him to be shunned by the society. In Churchill v. Ainsworth, it was held defamatory, to call a journalist a paid back, paid to write biased articles. In Angle v. H.H. Bushal and Co. Ltd., it was held defamatory of a businessman to say that he is not conversant with normal business ethics.
(b) It must be false and must not be privileged or in the nature of fair and bona fide comment.
(c) It must refer to the plaintiff.
(d) It must be published.
(e) It must be published by the defendant.
(f) It must have caused special damages to the plaintiff in the four well- known exceptional cases.
(i) When criminal offence is charged.
(ii) Accusation of virulent disease.
(iii) An imputation relating to office, profession or trade.
(vi) Unchastity in woman of girl.
(v) Aspersion on caste.(i) When criminal offence is charged - Spoken words are actionable if they impute the plaintiff with the commission of a crime punishable with imprisonment and not with fine only. For example murder, robbery, theft etc. It should be noted that where the penalty is merely pecuniary, an action will not lie, even though in default of payment imprisonment is prescribed by the statute, because imprisonment is not the primary and immediate punishment for the offence - Ogden v. Turnel. Again it should be noted that words merely imputing suspicion of a crime are not actionable without proof of Special damage - Simmons v. Mitcheil, (1880) 6 App. Cases 156. Lastly, words imputing past conviction for an offence are actionable without proof of speil damage as they cause other people to shun that person and to exclude him from society. (ii) Imputation of a Contagious, Venereal or Infectious disease - An imputation that the plaintiff has an infectious or contagious disease such as Leprosy, Venereal disease, plague etc. are actionable without proof of special damage. It is important to point out that the imputation must be, that the plaintiff was suffering from any infectious disease, made, at the time when he is allegedly suffering such disease. (iii) An imputation relating to office, profession or trade. - Where there is an imputation of unfitness, dishonest or incompetence in any office, profession or calling, trade or business held or carried on by the plaintiff at the time when the slander was punished:- This is by far the most important because it is the most frequently invoked exception. At the common law its scope was severely restricted by the rule that the slander must be spoken of the plaintiff in the way of his office and, not in his private capacity, so that it was not slander actionable per se to say of a schoolmaster that he had committed adultery with one of the school cleaners. [Jones v. Jones, (1916) 2 A.C. 481]. It is not necessary that the words should hold him up to hatred, contempt or ridicule. The words must impute his profession, conduct or skill or knowledge. It is thought, therefore, that any words spoken of a man which are reasonable likely to injure him in his office, profession, calling, trade or business will be actionable per se [Bull v. Vazquoz, (1947) 1 All E.R. 334]. Section 2 of England's Defamation Act, 1952, lays down that it shall not be necessary to allege or prove special damage, whether or not words are spoken of the plaintiff in the way of his office, profession, calling, trade or business. (iv) Where unchastity is imputed to a woman :- According to Prof. Winfield there is no need to show special damage in case of `imputation of unchastity or adultery to any woman or girl.' The case of Kerr v. Kennedy, (1942) 1 K.B. 409, has also included imputation of lesbianism in it. This is a statutory exception created by Slander or Woman Act, 1891, which also provides that in this exception "the plaintiff shall not recover more costs than damages, unless the judge shall certify that there was reasonable ground for bringing the action." (v) Aspersion on caste. - Aspersion on cast are held to be actionable. It is actionable without proof of special damage to say of a high caste woman that she belongs to an inferior caste. The action may be brought not only by the woman, but by her husband also. It was observed that if the husband himself is a high caste Hindu, the imputation would involve that he has married a low caste woman. Gaya Dins Singh v. Mahabir Singh, ILR (1926) 1 Lucknow 386. Indian Law - Defamation is tort as well as crime in India. In India both Libel and Slander are treated as Crime and Section 499 IPC recognize both libel and Slander.
"In an action for defamation, the wrongful act is damage to the plaintiff's reputation. The injuries that the sustains may be classified under two heads : (i) the consequences of the attitude adopted to him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement, and (ii) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which, or the motives with which, the statement was made or persisted in. There may also be cases where Lord Devlin's second principle is applicable, as, for example, if a newspaper or a film Company as in Youssoupoff v. Metrogoldwyn-Mayer-Pictures Ltd., (1934) 50 TLR 581, has in the view of the damage awarding tribunal, deliberately published a defamatory statement in the expectation of increasing its circulation and profits by an amount which would exceed any damages awarded by way of compensation alone.....".In S.N.M. Abdi v. Prafulla Kr. Mahanta, AIR 2002 Gouhati 75 - It was observed -
"The right to enjoyment of private reputation, unassailed by malicious slander is of ancient origin and is necessary for human society. A good reputation is an element of personal security and protected by Constitution............The only defence in such a situation is that if such statement is correct he is not liable but he had to do so by filling a written statement to establish it as the burden being on him but in the present case the defendant did not file written statements and did not adduce any evidence in support of the article published - Next question is what would be the amount of compensation. In deciding the question of compensation in such situation, the court must take into consideration the following things -
(1) the conduct of plaintiff
(2) his position and standing
(3) nature of libel
(4) absence or refusal of any retraction or apology
(5) whole conduct of the defendant from date of publication of libel to the date of decree.
I. Absolute Privilege.
II. Qualified Privilege.(I) Absolute Privileges. - A statement is absolutely privileged if no action lies for it even though it is false and is made maliciously with a view to causing injury to the plaintiff. Such privilege is available where the communication is of such paramount importance that nothing should defeat it. Here the individual interest is completely subordinated to that of the community. Following are the instances of absolute privilege :
(a) Parliamentary proceedings.
(b) Reports of Parliamentary Proceedings.
(c) Judicial proceedings.
(d) Fair and accurate reports of judicial proceedings.
(e) Official communications between State Officers.
(f) Complaints to police officers.
(g) Communication between husband and wife.(a) Parliament Proceedings. - Whatever is said members in the house of legislature is absolutely privileged. In England it is based on Section 1 of the will of the right 1668 which provides that "the freedom of speech and debates in parliament ought not to be impeached on questioned in any Court or place out of parliament. In India the privilege is conferred by provisions of the Constitution. Articles 105(2) and 194(4) provide that the members of Parliament and State Legislatures respectively enjoy an absolute privilege in respect of anything said inside the House. No suit can be maintained for defamation against any member for anything said within the walls of the House even if the Statement is malicious. (b) Reports of Parliamentary Proceedings. - In England Parliamentary Act, 1840 confers absolute privilege upon publication made by the order of either House of Parliament of the reports, papers or votes or proceedings of the House. In India too articles 106 and 194 of the Constitution provide that no person shall be liable in respect of the publication by or under the authority of either House of Parliament (or State Legislature) of any report paper, votes or proceedings, parties or witnesses in the course of judicial proceedings even if the words are false and are spoken maliciously without any justification or excuse and from personal ill will and anger against the person defamed. In Jagannath Prasad v. Rafat Ali Khan, AIR 1934 All 827, the plaintiff was being examined as a defence witness in the Court presided by the defendant as a Magistrate. In the course of the examination the defendant said to plaintiff "dishonest", liar, foolish and pest of A". It was found that the Magistrate used these words to degrade the plaintiff in the public eye because he did not like him. The plaintiff filed a suit for defamation. The Court held that the suit was not maintainable because being judicial officer the defendant enjoyed absolute privilege. No doubt he is open to disciplinary action by higher authorities to whom he was subordinate but not action for damage could be permitted. (c) Judicial Proceedings. - Statement must be in Reference to the Judicial Proceedings. To be absolutely privileged the statement must be relevant and must have been made in the course proceedings with reference to the subject matter in dispute. If the statement is irrelevant and is not in reference to the proceedings no privilege can be claimed. In Jagat Mohan v. Kalipado Ghosh, AIR 1922 Pat. 104. Where it was not alleged that in the course of arguments the defendant who was a vakil, used very abusive language against the plaintiff and described him as a liar and swindler without any justification and out of their personal grudge and malice to lower the plaintiff in the estimation of the public. The Court held that the statement was made in the course of judicial proceedings and, therefore, was absolutely privileged. But in Rahim Bakhsh v. Bachacha Lal, AIR 1929 All 214. While examining a witness the counsel asked the witness whether his client a company was not the biggest in the town. The witness answered "yes" and the pleader on the opposite side remarked "and it is also the most dishonest in the town. It was held that the remarks was irrelevant and had no reference to the proceedings before the Court. The pleader, therefore, could not claim privilege in respect of the remark. (d) Fair and accurate reports of Judicial Proceedings. - Authorities are not clear as to whether such reports are absolutely privileged or enjoy only qualified privilege. Section 3 of the English Libel Amendment Act 1888 as amended by Section 8 of the Defamation Act, 1952 provides that "A fair and accurate report in any newspaper of proceedings, publicly heard before any court exercising judicial authority shall, if published contemporaneously with such proceedings, be privileged provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter". In M. Carry v. Associated News Paper Ltd., (1964) 2 All.E.R. 335. Reversed in (1964) 3 All E.R. 947 (C.A.) on issue of damages it was held that the word "Privileged" in the section means absolutely privileged. The report need not be a verbatim one. It must be substantially accurate. Kimber v. Press Association, (1893) 1 Q.B. 65 proceedings include anything done in the course of proceeding which is related to them, Farmer v. Hyde, (1937) 1 K.B. 728. (e) Communications between state officers. - Certain official communications relating to matters of state are absolutely privileged. In Chatterion v. Secretary of State, (1895) 2 Q.B. 189, the defendant in discharge of his duties wrote to the Under Secretary of State that the Commander-in-Chief in India and Government of India recommended the removal of the plaintiff to the half-pay list and also stated in the letter the reason for the recommendation. The Courts of Appeal held the communication as absolutely privileged. (f) Complaints to a Police Officer. - The complaints made to the police are absolutely privileged. It has been held so in number of cases Bira Gareri v. Dulhin Someria, AIR 1962 Pat. 229 : (1962) 1 Cr LJ 737. The statements contained in such complaints can not be the foundation of an action for defamation. If the complaint results in unsuccessful prosecution then remedy lies in an action for malicious prosecution. If the complaint results in successful prosecution then also there is no remedy in defamation. Even where the statements in the complaint are false the complainant may be punished under Section 182 or 211 of the Indian Penal Code. But no action lies in tort. Thus, defamatory statements in the first information report enjoy absolute privilege. Bira Gareri v. Dulhin Someria, AIR 1962 Pat. 229 : (1962) 1 Cr LJ 737. (g) Communications between husband and wife. - No action can be based on conversation between husband and wife older authorities proceeded on the ground that where one spouse makes statement to another there is no publication. To this extent they were considered to be one entity. Now even after conferring full status on women and discarding of action of unity of husband and wife conversations between them are protected in the interest of peaceful domestic life. The modern view is that this protection can be justified as an instance of absolute privilege on account of confidential character of relationships prosser, Law of Torts, p. 805 Salmond on the Law of Torts (15th ed.) p. 213. (II) Qualified privilege. - There are certain occasions which are so important from the point of view of the society as to warrant absolute privilege. But for common convenience and welfare of the society communications made on such occasions, need protection. For such communication law allows only qualified privilege which protects only such statements as are made without malice. The occasions on which qualified privilege can protect an alleged defamatory statement are the following :
(a) Statement for protection of public interest.
(b) Statements for protection of legitimate self interest;
(c) Protection of third person's interest where legal social or moral duty exists.
(d) Common interests.(a) Statements in public interest. -
(i) Reports of Legislative Proceedings which are not published by or with the authority of the Legislature;
(ii) Reports of Judicial Proceedings;
(iii) Reports of Quasi Judicial Proceedings;
(iv) Reports of Public Meetings;
(v) Complaints to proper authorities for redress of public grievances;(b) Protection of self interest in person or property. - On the analogy of right of private defence a statement made for protection of one's interests is also privileged in defamation. Such statements may be :-
(i) To protect his person or property.
(ii) To defend his character and reputation.(c) Protection of third person's interest where legal social or moral duty exists. ; A privileged occasion is "an occasion when the person who makes a communication has an interest or a duty legal, social or moral, to make it to the person to whom it is made has a corresponding interest or duty to receive it. If a person, thinking of dealing with another in any matter of business, asks a question about his character from someone who has means of knowledge, it is for the interests of society that the question should be answered; and if answered bona fide and without malice, the answer is privileged communication. The principle is that "either there must be interest in the recipient and a duty to communicate in the speaker, or an interest to be protected in the speaker and duty to protect it in the recipient. But the privilege is restricted to the communication that is relevant to the duty or interest and does not extend to irrelevant matters. (d) Common interest and duty. - A communication made bona fide upon any subject matter in which the party communication has an interest, or in reference to which he has or honestly believes that he has a duty, is privileged, if made to a person having a corresponding interest or duty although, it contains defamatory matter which would otherwise be actionable, Suryanarayanh v. Sitaramayah, AIR 1938 Pat. 164. Where in good faith, an employee makes, imputation of a crime against his employer and communicates it to another employee with a view to their making enquiries into the matter the statement is privileged. Leslie Rogers v. Hajee Fakir Md., AIR 1919 Mad 434. Similarly where a tenant complains to the landlord of the misconduct of a person employed by the landlord to repair tenant's premises, Togood v. Spyring, (1834) C.M. and R. 523, or where landlord complains of misconduct of tenant's lodger, Knight v. Gibbs, (1834) 1 A and E 43; 40 RR 247, the complainants enjoy qualified privilege. The privilege will be available if following conditions are satisfied :-
(1) There must be a privileged occasion.
(2) Interest or duty in making communication to a person having corresponding interest or duty.
(3) Statement must be relevant or pertinent to the occasion, Megha Deva v. Karshan Mala, AIR 1955 Saurashtra 110.
(1) The plaintiff was prosecuted by defendant.
(2) The prosecution terminated in his favour
(3) There was no reasonable or probable cause for launching such prosecution,
(4) that the prosecution was malicious, i.e. it was done with ulterior motive and not with the intent of carrying the law into effect.
(5) Plaintiff should have suffered damage and special damage when the proceedings are other than criminal proceedings.In a case of malicious prosecution the plaintiff can claim damages on three counts :- (a) For damage to person, (b) for damage to property, (c) damage to reputations". In Baddu Singh v. Chet Ram, 1971 A.L.J. (sic), where a person who is prosecuted on the allegation that he committed the crime in the presence of complainant, is acquitted and he files a suit against the complainant, for malicious prosecution. No presumption can be made that he was prosecuted maliciously and without reasonable and probable cause and in such circumstances the plaintiff can not succeed in establishing, merely by producing a copy of judgment acquitting him, that his prosecution was without any reasonable and probable cause. (1) Prosecution by the Defendant :- It is necessary for plaintiff to prove that he was prosecuted by defendant, of which he was acquitted. Prosecution here means a criminal prosecution rather than a civil action. Prosecution means criminal proceedings against a person in a court of law. Proceedings before the police are proceedings anterior to prosecution. A prosecution is there when a criminal charge is made before a judicial officer or a tribunal. As per the deliberations in the Nagendra Nath Ray v. Basanta Das Bairagya case, after a theft had been committed in the defendant's house he informed the police that he suspected the plaintiff for the same. Thereupon the plaintiff was arrested by the police but was subsequently discharged by the magistrate as the final police report showed that there was no evidence connecting the plaintiff with that theft. In a suit for malicious prosecution it was held that it was not maintainable as there was no prosecution at all because of the mere police proceedings are not same thing as prosecution. Similarly, when a police officer, after making the enquiries, finds the complaint to be false and files it, there is no prosecution (Bolananda Pemmaya v. Ayaradara case). The prosecution is not deemed to have commenced before a person is summoned to answer a complaint. Prosecution should be made by the defendant. A prosecutor is a man who is actively instrumental in putting the law in force for prosecuting another. Although criminal proceedings are conducted in the name of the crown but for the purpose of malicious prosecution, a prosecutor is the person who instigated the proceedings (Bolbhaddar v. Badrisah case and Gaya Prasad v. Bhagat Singh case). (2) Termination of Proceedings in Favour of the Plaintiff :- It is essential that the prosecution terminated in favour of the plaintiff. If the plaintiff has been convicted by the court he cannot bring an action for malicious prosecution even though he can prove his innocence and also that the accusation was malicious and unfounded. Termination in favour of the plaintiff does not mean judicial determination of his innocence, it means absence of judicial determination of his guilt. It is enough if the plaintiff has been acquitted on technicality, conviction has been quashed, or the prosecution has been discontinued, or the accused is discharged. (3) No Reasonable or Probable Cause :- The plaintiff has also to prove that the defendant prosecuted him without reasonable and probable cause. There is reasonable and probable cause when the plaintiff has sufficient grounds for thinking that the plaintiff was probably guilty of the crime imputed. Neither mere suspicion is enough, nor has the prosecutor to show that he believed in the probability of the conviction. The burden of proof lies on the plaintiff to show that there was an absence of reasonable and probable cause. If there is reasonable and probable cause for the prosecution, malice is immaterial because existence of reasonable cause in the plaintiff's mind is sufficient defence. It is not necessary that the facts believed by the prosecutor should be true. It is, however, necessary that the prosecutor should honestly believe them to be true. The prosecutor's belief should be based on enquiry. Acting on the lawyer's advice is a good defence provided the lawyer has been fully and fairly acquainted with all the relevant facts within the defendant's knowledge. In Smt. Maniben v. Sohrab Peshottam Kotwar case, the lawyer was misled and was provided with such facts which the defendant knew to be false. In the prosecution on the basis of such advice there was held to be want of reasonable and probable cause and also malice for which the defendant was held liable. The absence of reasonable and probable cause should not be presumed from the dismissal of a prosecution or acquittal of the accused. (4) Malicious Prosecution : The plaintiff has to prove that the defendant acted maliciously in prosecuting him. It means that the defendant is actuated not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact. It means a wish to injure the plaintiff rather than to vindicate the law. Absence of reasonable and probable cause and existence of malice have to be proved separately. Moreover, prosecution does not become malicious merely because it is inspired by anger. Acquittal of the plaintiff also is no evidence of malice. If the Station House Officer of a police station knowingly concocts a false criminal story against the plaintiff and falsely shows recovery of a weapon from the plaintiff's house the prosecution is malicious, and the plaintiff can successfully sue for malicious prosecution. (Abdul Majid v. Harbans Chaube case). But if the buyer of a house feels cheated by false statement by the seller that the house is not subject to any mortgage, his action against the seller under Section 420 of the Indian Procedure, Code for cheating cannot be considered to be malicious and he cannot be made liable for malicious prosecution (Bhogilal v. Sarojbahen case). (5) Damage :- It has also to be proved that the plaintiff suffered damage as a consequence of the prosecution complained of. Though the prosecution ends in acquittal, the plaintiff may have suffered damage to his person, property or reputation by it for which he can claim compensation.
"The distinction between false imprisonment and malicious prosecution is well illustrated by the case where, parties being before a magistrate orders the person charged to the taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment. There is, therefore, at once a line drawn between the imprisonment by the ministerial officer. Thus, the question is does the defendant set a ministerial or judicial officer in motion ? If the former he may be liable for false imprisonment; if the latter, for malicious prosecution:"(iv) In false imprisonment, the onus lies on the defendant to plead and prove affirmatively the existence of reasonable and provable cause as his justification whereas in an action for malicious prosecution the plaintiff must allege and prove affirmatively its non-existence. The reason for this disction is that any interference with a man's personal liberty is prima facie wrongful, and therefore, has to be justified; but anyone is prima facie entitled to set the criminal law in motion. Imprisonment is a tort; prosecution is not so in itself. (v) An imprisonment is a tort per se, whereas prosecution is not so in itself; as such, false imprisonment is itself a tort while prosecution is not itself a tort but becomes a tort when it is malicious and without reasonable and probable cause. (vi) Malice is an essential ingredient in an action for making prosecution whereas in an action for false imprisonment it is not necessary for the plaintiff to prove that the defendant was actuated by malice. (vii) In an action for malicious prosecution two things are required to be proved viz., both malice and the absence of any reasonable or probable cause for the proceeding complained of; but in an action for false imprisonment liability is created, in general even by honest and inevitable mistake and it is no defence that the defendant had no malice but a bona fide mistake.
(i) If such arrest, attachment or injunction, was applied for an insufficient ground, or
(ii) If the plaintiff fails in the suit and there was no reasonable or probable ground for instituting the suit. The defendant has simply to present an application to the court, which subjects to its' pecuniary jurisdiction, can give compensation up to one thousand rupees. This remedy under the code is an optional and the defendant can file a regular suit if he has not already sought relief under this section.The above section gives an alternative remedy in cases of wrongful attachment. In Bank of India v. Lakshamani Das, AIR 2000 SC 1172 Supreme Court has observed - Section 95, CPC is an alternative remedy in cases of wrongful obtainment of an injunction and it does not in any way interfere with the principles regulating suits for damages for fort of malicious legal process.......... As a general principle where two remedies are available under law one of them should not be taken as operating in derogation of the other. A regular suit will not be barred by a summary and a concurrent remedy being also provided therefor, but if a party has elected to pursue one remedy he is bound by it and cannot on his failing therein proceed under another provision. A regular suit for compensation is not barred by the omission to proceed under summary procedure provided under Section 95, CPC, but if an application is made and disposed of, such disposal would operate as a bar to regular suit whatever may be the result of the application. There is, however, a difference between conditions necessary for the maintainability of an application under Section 95, CPC and those necessary to maintain a suit. The regular suit is based on tort for abusing the process of Court. Under the law of torts in a suit for compensation for the tort the plaintiff must not only prove want of reasonable or probable cause of obtaining injunction but also that the defendant was attracted by malice which is an improper motive. In justifying a claim for damages apart from Section 95, CPC, a distinction has to be drawn between acts done without judicial sanction and the acts done under Judicial sanction improperly obtained. Proof of malice is not necessary when the property to a stranger, not a party to the suit, is taken in execution but if the plaintiff bringing a suit for malicious legal process is a party to a suit, proof of malice is necessary. The plaintiff must prove special damage. The claim of a person for damages for wrongful attachment of property can fall under two heads (1) trespass and (2) Malicious legal process. Where property belonging to a person, not a party to the suit, is wrongly attached, the action is really one grounded on trespass. But where the act of attachment complained of was done under judicial sanction, though at the instance of a party, the remedy is an action for malicious legal process. In the case of malicious legal process of Court, the plaintiff has to prove absence of probable and reasonable cause. In cases of trespass the plaintiff has only to prove the trespass and it is for the defendant to prove a good cause or excuse. In the former case plaintiff has to prove malice on the part of the defendant while in the latter case it is not necessary.
(i) If it was not reasonably foreseeable that the plaintiff would suffer injury of any kind as a result of the defendant's negligent act then he cannot recover.
(ii) If it was reasonably foreseeable that the plaintiff would suffer nervous shock as a result of the defendant's negligence, but only after being informed of the event, then again he can't recover - (Hambrook v. Sopes Bros.).
(iii) If it was reasonably foreseeable that a normally susceptible person, placed in the plaintiff's position would have suffered nervous shock from the defendant's negligence, the plaintiff can recover.
(iv) If the plaintiff suffers shock through reasonable fear for his own safety as a result of the defendant's negligent act, then he can certainly recover (Deelive v. While).