Law of Torts

Frequently Asked Questions on Law of Torts

Ans. Tort - Law of torts is a branch of law which is not codified. The word `tort' has been derived from the Latin term `Tortum' which means to twist. It, therefore, includes that conduct which is not straight or lawful. It is equivalent to the English term `wrong'. This branch of law consists of various `torts' or wrongful acts where by the wrongdoer violated some legal right vested in another person. The law imposes a duty to respect the legal rights vested in the members of the society the person making a breach of that duty is said to have done the wrongful act. As, `crime' is a wrongful act which results from the breach of a duty recognised by criminal law, a `breach of contract' is the non-performance of a duty undertaken by the parties in a contract. Similarly `tort' is a branch of duty recognised under the law of torts. For example, violation of a duty not to injure the reputation of someone else results in the tort of defamation. Violation of a duty not to interfere with the possession of land of another person results in the tort of trespass to land and the violation of duty not to defraud another person results in the tort of deceit.

Definition :- As the law of torts is not a codified law, so a precise definition of the law of torts can not be given, However various jurists have defined it as under :-

According to Salmond :-

"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.

Ans. Distinction Between Tort and Crime - In the early periods of history there was no clear distinction between tort and crime and although even today in certain situations the same facts may give rise to liability in both tort as well as crime; but the two differ in respect of both principle and procedure. The following are the main points of distinction :-

1. The interest protected by law of torts as well as crime is created by law. To that extent both are alike. But the interest violated in tort is interest of an individual only whereas liability in crime is based on the violation of interest of the society as a whole. Some torts are also crime because they affect not only the interest of the individual injured thereby but also the interest of the society. For instance, when a person commits assault or battery against another person he violates not only the interest of that another person but also the interest of the society in maintaining the peace and order in the society.

2. In case of torts the interest violated is that of an individual and, therefore, suit is brought by the individual whose legal interest is violated. In crimes, on the other hand, interest of the society is also violated and, therefore, State prosecutes the criminal. Atleast in theory, State is always a party to a criminal proceeding.

3. In case of torts a suit is filed in a civil court while in case of crimes prosecution is launched in a criminal court. This distinction is not universally applicable. It applies only to those countries which provide for different sets of courts for civil and criminal proceedings.

4. The object of the law of torts is to make good the loss caused to the person whose legally created and protected interest has been violated by the wrongdoer by the object of the law of crimes is to maintain peace and order in the society and to eliminate crimes and criminals.

5. As the objects of the two branches differ the remedies available are also different. The remedy in case of tort is a suit for damages whereas in case of crimes the remedy is prosecution and punishment of the criminal.

So Difference between tort and crime may be explained in following points :-



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.

Distinction Between Tort and Breach of Contract A tort differs from a breach of contract in the following respects :-

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.



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.

Ans. The general principle is that if there is a right there must be remedy for its violation. Now next question is whether violation of right is itself sufficient for maintaining action against wrong doer or it is necessary that there must be consequent damages caused by violation of any legal right. This has been cleared in two well known 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.

Ans. Ubi Jus ibi remedium Law of torts can be said to be development of maxim `Ubi Jus ibi remedium' which means that there is no wrong without remedy. In other words, maxim means that when there is a right then there shall be a remedy for its breach. The law of torts has accepted this principle and consequently advanced remedy for each and every wrong.

"Jus" signifies legal authority to do or to demand something and "remedium" means the right of action or remedy which means statutory enforcement of right or damages.

In Ashby v. White, (1703) 2 Ltd. Raym 938 Holt C.J., had observed :-

"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.

Ans. The word "tort" is derived from the Latin term `tortum' meaning twisted and implies conduct which is crooked or tortious. The person committing a tort or wrong is called a tort-feasor and his misdoing is a tortious act. Prof. Winfield has defined the tortious liability in following ways :-

Tortious liability arises from the breach of a duty primarily fixed by the law, this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. In order to understand the definition, it is essential to discuss the three essentials separately.

The definition given by Prof. Winfield is generally most accepted one. From reading of the definition it is clear that following are essentials of Tortious Liability :-

(1) Duty, Primarily fixed by the law :- The duty, violation of which gives rise to tortious liability is, according to Prof. Winfield primarily fixed by law. Law imposes certain duties to be fulfilled, because right of someone, can be duty of other and vice versa. It is obvious that if duty is not primarily fixed by Law there can be no liability. Breach of duty fixed by law give rise to `tortious liability'. It is important to point out here that tortious liability cannot be created by agreement of parties. It arises only when law as fixed certain duties and its breach give rise to tortious liability which is distinguishable from contractual liability.

(2) The Duty Is Towards General Public :- It is important that tortious liability arise when there is breach of duty toward persons generally and not towards a specific person. In other words if the duty is towards a specific person or specific group of persons, its breach cannot give rise to tortious liability because in tortious liability duty is always general and not specific.

(3) The breach of duty is redressible by an action for unliquidated damages. - The unliquidated damages simply mean an amount of damages as the court deems fit in its own opinion. The amount of damages is not fixed. It is the discretion of the court to decide as to what amount of damage should be awarded to the plaintiff.

It must be noted that the only remedy of unliquidated damages, are not the only remedy in tort, but there are other remedies like self-help, injunction, action for specific restitution of land or chattels are also available with some conditions. However, there are no restrictions except those of procedure.

Ans. The basic question regarding tertious liability is : Does the law of torts consists of a fundamental general principle that it is wrongful to cause harm to another persons without some specific ground of justification or execute, or does it consist of number of specific rules prohibiting certain kinds of harmful activity and leaving all the residue outside the sphere of legal responsibility ?

Let us discuss these two theories of tortious liability.

First Theory - General Theory of Tortious liability - This theory is also known as General theory. According to the first theory, if I injure my neighbour, he can sue me in tort whether the wrong happens to have a particular name like assault; battery, deceit, slander, or whether it has no special title at all; and I shall be liable if I cannot prove lawful justification. On this view the law of torts consist not merely of all those torts which have acquired specific names but also include the wider principle that all unjustifiable harm is tortious. This enables the courts to create new torts.

This theory is supported by a number of dicta e.g. Mogul Steamship Co. v. McGregor Gow and Co., (1989) 23 Q.B.D 598, 613 and Rookes v. Barnard, (1964) A.C. 1129. There was a Scottish dictum supporting this theory in following words "There is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained appears to be wrongful the law of Scotland will afford remedy...."

Lord Mansfield in 1760 referred to the action upon the case as "a liberal action" and Lord Comden said in 1762 : "Torts are infinitely various, not limited or confined". In 1893, the great lawyer, Bowen, L.J., expressed an opinion that at Common Law there was a cause of action whenever one person did damage to another wilfully and intentionally without a just cause or excuse; and in 1889 he had stated much the same thing as a current law in a passage which caused the approval of Holmes, J., on the other side of Atlantic. These judicial opinions had the consistent and powerful support of the late Sir Fredrick Pollock and in his view the first theory is now generally accepted.

It is, moreover, reinforced by the fact that the courts have repeatedly extended the domain of tort by creating new torts. The tort of malicious prosecution did not appear as an independent tort of the type until 1789 in Pasley v. Freeman. Several other torts emerged in the nineteenth century. Negligence was also recognised as an independent tort in between 1820 and 1830. The rule of strict liability for the escape of noxious things from one's land was laid down in 1868 in Rylands v. Fletcher. Professor Winfield therefore, concludes : "At any rate it is clear from these and other instances that the law of tort is steadily expending and that the idea of its being crippled, and confined in a set of pigeon-holes is untenable."

Second Theory - Specific Theory This theory is also known as specific theory. Sir John Salmond and Dr. Jenkrs are the chief supporters of this theory. Sir John Salmond in his well-known book on the "Law of Tort", says -

"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."

Ans. Motive :- Sir John Salmond has defined `Motive' as the ulterior intent. Motive is the ultimate object with which an act is done.

Motive signifies the reason for conduct and sometimes it is entangled with the word `malice' which has quite a different meaning in law of tort. Motive generally means what is usually interpreted - `evil motive' or it may indicate performance of an act wilfully without just cause or excuse, but the latter meaning is the intention and not motive. Salmond has described motive as the "ulterior intent."

Motive is generally irrelevant in determining whether an act or omission is a tort or not. If the conduct of a person is unlawful, a good motive will not be a defence for the defendant; and if the conduct being lawful apart from motive, a bad motive will not make him liable. The irrelevancy of an evil motive was affirmed by the House of Lords in Bradford Corporation v. Pickles. Lord Macnaughten indicated, "It is the act not the motive for the act that must be regarded. If the act apart from the motive gives rise merely to damage without legal injury, however reprehensible it may be, will not supply that element."

Malice :- The term malice as used in law is ambiguous and possesses two distinct meanings which require to be carefully distinguished. It signifies either (1) the intentional doing of wrongful act without just cause or excuse, or (2) action determined by an improper motive.

In Bromage v. Prosser, (1825) 4 B and C 247, 255 - It was observed "Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally without just cause or `excuse'.

The term `malice' has been used in two different sense :

(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.

Relevancy of Malice in Law of Torts - Express malice or malice in the sense of improper motive is irrelevant in the law of torts. A lawful act does not become unlawful merely because it is done with a bad motive or malice. As Bowen J. observed :

"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

(vi) Maintenance.

Ans. In every tort there must always be the violation of a legal right. Since legal right and legal duties are correlative terms so it can also be said that in every tort there must be the breach of a legal duty. A breach of legal duty may occur in the following ways :-

(1) Mal-feasance. - The term `mal-feasance' applies to the commission of an act which one has a legal duty to refrain from, such as, trespass, which are actionable per se and do not require proof of negligence or malice. Unknown to the passengers A drives a motor car without a driving licence. An accident is caused and the passengers are injured. A is guilty of `mal-feasance', driving without licence was an act which he was under a legal duty not to do. There is thus a breach of a legal duty on the part of A.

(2) Mis-feasance. - It consists in the improper performance of an act which one has a legal right to do.

A has a legal right to drive a motor car. Under law, in a congested part of the city the speed of the motor car should not exceed 15 km. per hour. A drives at an excessive speed of 45 km. per hour and injures B (a passerby). A is therefore, guilty of `misfeasance'.

(3) Non-feasance. - It applies to the non-performance of an act, which one is under a legal duty to perform.

A, a doctor treating B, advised B to undergo an operation of brain tumour. A appoints a date to which B agrees. But on the appointed day A was not available and B was completely paralysed. As A agreed to perform operation he was under a legal duty to perform, which he did not do, A is guilty of non- feasance.

In a leading case Elsee v. Gutward, (1703) 5 TR 72, it was held that the non- feasance of a gratuitous undertaking does not impose liability, but misfeasance does.

Ans. Volenti nonfit Injuria :- It is a settled principle of law that no man can sue for a tort which he had consented either expressly or impliedly. For example injuries received in course of a lawful game or sport are not actionable. The Latin maxim "Volenti non fit injuria' means harm suffered voluntarily does not constitute legal injury and as such it is not actionable. So there are two basic ingredients in constituting the maxim:-

(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.

Ans. Act of God - An Act of God may be defined as an act of native which no human foresight can anticipate and guard against.

Prof. Winfield defines - Act of God is an operation of natural forces so unexpected that no human foresight or skill could reasonable be expected to anticipate it.

According to Salmond, an Act of God may be defined as "any event which could not have been prevented by reasonable case on the part of any one."

The Act of God is a mere short way of expressing the proposition. A common carrier is not liable for any accident as to which he can show that it is due to natural causes directly and exclusively without human intervention, and so that could not have been prevented by any amount of foresight and pains and care reasonably to have been expected from him."

Pollock defines Act of God as - "an operation of natural forces so unexpected to anticipate it."

Two important essentials are needed for this defence :

(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.

Ans. (A) Inevitable Accident - According to Sir Frederik Pollock

"Inevitable accident is an accident, not avoidable by any such precautions as a reasonable man, doing such an act then and there, could be expected to take."

So an inevitable accident is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It means an accident physically unavoidable. An accident in its ordinary sense is an unexpected injury. So in order to constitute inevitable accident, it is essential that the accident should not have been capable of being avoided by the ordinary skill and diligence. In fact inevitable accident is plea to prove that the conduct of defendant was neither wilful nor negligent.

In Stanley v. Powell, (1891) 1 Q.B. 6 Plaintiff and defendant were member of a shooting party. Party went for pleasant shooting. Defendant pleasantly fired but pallets from his gun glanced off as a tree at an angle and injured the plaintiff. It was held that defendant was not liable and injury was accidental. It will be said to be a case of inevitable accident.

Essentials of Inevitable accident - The following are the essentials of inevitable accident :

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.

Ans. (i) Private defence :- Private defence is a good ground to negative a tortious liability. The law permits the use of reasonable force to protect one's person or property. For this, the following conditions have to be satisfied :-

(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.

Ans. Statutory Authority - When a statute for the performance of some work authorises the commission of what would otherwise be a tort then the party injured has no remedy apart from the compensation (if any), which the statute allows him. This statutory authority and indemnity extends not merely to the act itself but to all its necessary consequences.

Thus, the damage resulting from an act, which the legislature authorises or directs to be done, is not actionable even though it would otherwise be a tort. For such a statutory authority is also a statutory indemnity, taking away all legal remedies except those which are expressly provided by the statute itself. This defence of statutory authority has its most important application in actions of nuisance, but it is one of general application throughout the whole sphere of civil liability.

Immunity under statutory authority is not only for that harm which is obvious, but also for that harm which is incidental to the exercise of such authority. Therefore, if a railway line is constructed, there may be interference, with private land or the running of train may cause harm due to noise, smoke, etc. In Vaughan v. Taff Vale Rail Co., (1860) 5 H. and N. 679, sparks from an engine of the respondent's rail Co. set fire to the appellant's woods on adjoining land. Held that since the respondent had taken proper care to prevent the emission of sparks and they were doing nothing more than what the statute had authorised them to do, they were not liable. Similarly, in Hammer Smitin Rail Co. v. Brand, (1896) L.R. H.L. 171, the value of the plaintiff's property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains. The damage being necessarily incidental to the running of the trains authorised by the statute, it was held that no action lies for the same.

However, where an act authorised by the legislature is done negligently, than an action lies. In Smith v. London and South Western Railway Co., (1870) L.R. 6 C.P. 14, the servants of a Railway Co. negligently left trimmings of grass and hedges near a rail line. Sparks from an engine set the material on fire. By a heavy wind the fire was carried to the nearby plaintiff's cottage which was burnt. Since it was a case of negligence on the part of the Railway Co., they were held liable.

Indian Cases :

In K.R. Shenoy v. Udipu Municipality (1947 S.C.C. 506), Ray. C.J. of the Supreme Court observed that in order to succeed in an action for breach of statutory duty the plaintiff must establish a breach of statutory obligation. He must establish an injury or damage of a kind against which the statute was designed by give protection.

The Supreme Court in India in Supreme Bank v. P.A. Tendolkar, (AIR 1978 S.C. 1104), decided that where there is a breach of statutory duties by the Director of a bank and later on dies after the enquiry into his conduct has been made the cause of action will not come to an end. In such cases the liability of the representatives would be confined to the assets or estates left by the deceased in the hands of successors.

Ans. The Law of Torts is said to be a development of the maxim `Ubi jus ibi remedium' (there is no wrong without a remedy). The maxim means that legal wrong and legal remedy are co-relative terms. Where there is legal wrong there is legal remedy.

Legal Remedy - Definition. - For a legal injury action can be brought without the proof of any special damage, as the injury itself connotes damage. What is required is that the wrong should come within the category of wrongs for which the remedy is a civil action for damages. For the vindication of one's right to have recourse to the law courts is seeking the legal remedy.

Thus legal remedies are remedies by way of action at law. The injured party may institute a suit in a court of law and obtain redress. They are of three chief kinds : (1) damages, (2) injunction and (3) specified restitution of property.

Distinction between judicial and extra-judicial remedies. - Judicial remedies are remedies available to a party under the law of the country whereas extra- judicial remedies are those which party avails himself in some cases of tort by his own acts alone. They are expulsion of trespasser, re-entry on land, reception of goods, distress, damage peasant, re-entry on land, reception of goods, distress, damage feasant, abatement of nuisance. The ordinary judicial remedies are, action for damages for injunction or for specific restitution of property.

In this way judicial remedies are those where a man takes shelter of State machinery while in extra-judicial remedies the person deals himself by his own acts alone.

Ans. Definition of damages. - Damages are the pecuniary compensation which the law awards to a person for the injury he has sustained by the wrongful act or omission of another. They are not limited to the injuries which a person has actually sustained and are designed not only as a satisfaction to the injured person, but likewise as a punishment for the guilt to deter him from any such proceeding in the future. The defendant is liable for any damage which is the direct consequence of his unlawful act, or the acts of anyone else from which the law holds the defendant responsible whether he intended the consequence or not and whether he could have reasonably foreseen it or not. The term compensation is not ordinarily used as equivalent for damages. It is used in relation to a lawful act which has caused injury.

Damages is the most ordinary and essential remedy for a tort. In fact it is available in all cases of tort because tort is a civil injury for which the remedy is by way of an action for damages. The object of awarding damages is to place the injured party, so for as money could do it, in the position which he could have occupied, if the wrong has not been committed.

Kinds of Damages - There are four kinds of damages, namely,

(1) contemptuous,

(2) nominal,

(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."

Ans. Definition of Injunction. - An injunction is an order of the court restraining the commission or continuance of some wrongful act, or the continuance of some wrongful omission. Injunction is a discretionary relief but the court exercises the discretion according to well recognised judicial principles. To entitle a party to an injunction he must prove either damage or apprehended damage; the apprehended damages must involve damage of a substantial kind or injury that will be inseparable. [Mahadeo v. Narayan, (1904) Bom L.R. 123]. It is issued by the court when it appears to the court to be just or convenient. The remedy is only discretionary and cannot be demanded as a matter of right, and it will never be granted where damages would be an adequate remedy.

It is important to note that injunction is supplementary to the ordinary and essential remedy of damages and is granted in the discretion of the court in cases in which damages would not amount to adequate redress. Thus, for example, in the case of continuing nuisance, the plaintiff can obtain not only damages for the bodily injury he has suffered, but also an injunction from the court to prevent the continuity of the wrongful act in future.

Injunctions are generally sought against torts of nuisance, continuing or repeated trespass, infringement of copyright, libel, etc. Injunction will be refused if the plaintiff has acquiesced in the defendant's infringement of his legal rights.

Classification of Injunction - Injunctions are of four kinds -

(a) Perpetual

(b) Temporary

(c) Prohibitory

(d) Mandatory

An 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.

Ans. Extra Judicial Remedies - Following are the various extra judicial remedies available in Torts -

(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.

Ans. Origin and effect of the rule :- The well known Latin maxim `actio personalis moritur cum persona' literally means that personal action dies with the death of the person. The exact point of its origin is uncertain but it was first discussed in 1609 in Coke's report of Pinghon's Case and Hambly v. Trott, 1776 1 Cowp. 371 in 1776. Under the common law the effect of this maxim was that the death of the injured person or of the wrongdoer put an end to the cause of action and no suit was possible either against or on behalf of the deceased. A suit or appeal already instituted or preferred against or on behalf of the injured person used to abate on the death of the injured party or the wrongdoer during the pendency of the suit or appeal. Only where suit ended in a decree for damages in favour of the plaintiff further proceedings by way of appeal or otherwise did not abate on the death of either party.

Justifications for the rule. - The principle actio personalis moritur cum persona was justified on the ground that the writ of trespass which is said to be the main source of money actions in tort had a tinge of criminal character. The idea was that any obligation which was penal died with the person; crime was considered to be very personal matter. It was thought that the death pays all when criminal has gone. And even if he survives and it is the injured party which dies surely it is the kind and not dead means representatives, who should take up redress.

Exceptions at common law. - With the change in basic principles of jurisprudence the idea of vengeance gave way to that of compensation and increasing number of deaths due to industrialisation and developed means of communications and transport necessitated the abolition of this harsh principle of common law. The courts engrafted the following exceptions to the rule :-

(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.

Ans. Vicarious Liability :- Generally speaking a person is liable for his own acts, but in many cases he may be held responsible for the torts committed by others. This is known as the `vicarious liability' i.e. liability incurred for, or instead of, another. The common examples of such a liability are : Liability of the principal for the tort of his agent, Liability of partners for each other's tort, and, Liability of the master for the tort of his servant.

In the words of Salmond, "In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of others, however, blameless he himself is."

The doctrine of vicarious liability is based on the following principles:

(1) `Qui facit per alium facit per se'. - The maxim means, "he who acts through another is deemed in law as doing it himself". The master's responsibility for the servant's act had also its origin in this principal. The reasoning is that a person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the manner in which it is done; consequently he is answerable for the wrong of the person so entrusted either in the manner of doing such an act or in doing such an act under circumstances in which it ought not to have been done; provided what is done is not done from any caprice of the servant but in course of the employment.

Shanti Prasad Gupta v. State of U.P., (AIR 1978 Alld.) - In this case, the Appellate Court relying on the case of Kasturi Lal Jain v. U.P. State, AIR (1965) SC 1039 : held the view that the principle of Qui facit per alium facit per se will not be applied as the servant's act was a sovereign function.

(2) Respondent superior. - Another maxim usually referred to in this connection is respondent superior, i.e. the superior must be responsible, or let the `principal be liable'. In such cases, not only he who obeys but also he who commands becomes equally liable. This rule has its origin in the legal presumption that all acts done by the servant in and about his master's business are done by his master's express or implied authority, and are in truth the act of the master. The master is answerable for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and agent are jointly and severally liable as joint wrong-doers for any tort authorised by the former and committed by the latter.

According to Lord Pierce -

"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.

Ans. Master and Servant Relationship

If a servant does a wrongful act in course of his employment the master is liable for it. Their liability is joint and several. In Krishna Bus Service Ltd. v. Smt. Mangli and others, AIR 1976 SC 700 a bus driven by the employee of the appellant overturned causing death of husband of respondent. The accident is said to have been committed for the want of care of the driver, acting under the directions and instructions of the employer. It was held that appellant company would be liable for negligent act of its employee.

The reason for the maxim `Respondent superior' seems to be because of better position of Master being able to meet the claim because of his larger pocket and also his ability to pass the burden of liability through insurance. It is however important to point out that for the liability of master to arise, following two essentials are to be present :-

(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.

Ans. Master when not liable for servant's tort. - There are, however, certain cases in which a master will not be liable for the tort committed by his servant, such as :-

1. Where he has temporarily lent a servant to another person - This is based on the fact that the main ingredient in the definition of the servant is his accessibility to the direct supervision and control of the master. According to the same principle when a servant is lent to another person then for all practical purposes he is acting under the order and control of the employer to whom he has been lent. Hence he is in the eye of law a servant of the temporary employer, even though in a general sense he may be the servant of the master who lends him.

2. Where he has been obliged by law to employ a particular person, e.g., compulsory pilot. (The Ruby, (1890) 15 P.D. 139). In such cases the master not having had freedom in the choice of his servants, is not responsible for the latter's conduct whom he was compelled to employ.

3. Where the relation between the parties is that of a head of a Government department and an employee in that department, e.g., a Divisional Superintendent of Railways would not be responsible for the negligent act of the Station Master. In such cases the main liability is that of the concerned Government, and not of the superior officer. No doubt that the actual control is in the hands of the department head, but the ultimate control and policy- making power is the Government and even the superior officer is a servant for that matter.

4. That an employer will not be liable for acts of an independent contractor. But in case of strict liability a master is held liable for, torts committed by independent contractor.

Ans. Vicarious Liability of State

English Law - At Common Law the king could not be sued in tort either for wrongs actually authorised by it or committed by its servants in the course of their employment. The individual wrongdoer was only personally responsible and he could not take the defence of orders of crown or State necessity. This position has been entirely changed after passing of the `Crown Proceedings Act 1947', according to which the crown is liable for a tort committed by its servant just like a private master. After passing of the `Crown Proceeding Act, 1947' it is no defence for State that tort committed by its servants was in discharge of obligations imposed by Law.

Indian Law - Unlike the Crown Proceedings Act, 1947, we do not have any statutory provision so far mentioning the liability of the State in India. Art. 300 of the Indian Constitution declares that the Union of India and the State Governments can sue and can be sued but the circumstances under which that can be done have not been mentioned. According to Art. 300, the Union of India and the State Governments can sue or be sued in the like cases of the Domination of India and corresponding Indian states might have sued or been sued if the constitution had not been enacted. The Government of India Act, 1935 also recognises the position prevailing before the passing of that Act to continue. Similar provision is also found in the Government of India Act, 1915 and 1858. The position prevailing before 1958, when the administration of the country was in the hands of East India Company was that, apart from being responsible for the administration the East India Company traded on its own account. In P. and O. Steam Navigation Company v. Secretary of State for India case (1861) 5 Bom H.C.R. App. 1, it was held that if the act was done in the exercise of sovereign functions, the East India Company would not have been liable, but if the function was a non-sovereign one it would have been liable. In the above case maintenance of the dockyard was considered to be a non-sovereign function and, therefore, for the negligence of its employees the Government was held liable. In Nobin Chunder Dey v. Secretary of State case for India the State was held not liable for what was considered to be an act done in exercise of sovereign power. In the Secretary of State for India in Council v. Hari Bhanji, (1882) I.L.R. 5 Mad. 273 - it was stated that towards its own subjects the State should be liable just like an ordinary employer. The Law Commission in India in its First Report (1956) has stated that the law was correctly laid down in Hari Bhanji case.

Supreme Court in Kasturi Lal Ralia Ram Jain v. State of U.P. (AIR 1965 SC 1039) again stated that if the act of the Government servant was one which could be considered to be in delegation of sovereign powers the State would be exempt from liability.

In a landmark judgment, Nagendra Rao and Co. v. State of A.P., (1994) 6 SCC 205, the Supreme Court has held that when due to the negligent act of the officers of State a citizen suffers any damage the State will be liable to pay compensation and the principle of sovereign immunity of State will not absolve it from this liability. The court held that in the context of modern concept of sovereignty the doctrine of sovereign immunity stands diluted and the distinction between sovereign and non-sovereign functions no longer exists.

The Court observed : "No civilised system can permit an executive to play with the people of its country and claim that it is entitled to act in any manner as it is sovereign. The concept of public interest has changed with structural change in the society. No legal system can place the State above law as it is unjust and unfair for a citizen to be deprived of his property illegally by negligent act of officers of the State without remedy."

In Chairman Railway Board and Other v. Chandrima Das and other, AIR 2000 SC 988 Supreme Court held that where gang rape was committed by railway employee in the building of Railways namely Yatri Niwas, on a woman from Bangla Desh the Central Govt. would be vicariously liable to pay the compensation to victim.

Similarly in State of Haryana and others v. Smt. Santra, AIR 2000 SC 1888 Supreme Court held State liable on the principle of vicarious liability because of Government's doctor's unsuccessful sterilisation operations a woman having seven children after sterilisation operation gave birth to another child.

Ans. (A). Joint Tort Feasors :- When two or more persons commit a tort acting in furtherance of a common design, they are known as joint tort feasors. So those persons who with common design commit tort are joint tort feasors. Thus all the joint tort feasors who aid or counsel or direct or join in commission of tort are joint tort feasors. They are to be distinguished from independent tort feasors. Independent tort feasors act independently of each other but concur to produce single damage. Where two or more duty by different persons cause the plaintiff to suffer a single injury, plaintiff is entitled to recover in full from any of them or all of them.

Two ships A and B collided with each other on account of separate and independent act of negligence on the part of each vessel, and as a result of this collision ship A sank ship C, a third vessel. It was held that the first two vessels, viz, A and B were not joint tort-feasors in relation to the third, viz. C, because it was nearly a coincidence of separate acts which by their combined effect caused the damage. [The Kaursk, (1924) P. 140, per Sergeant, L.J.].

Liability of joint tort-feasors and contribution among them. - The joint tort-feasors are liable jointly and severally both. All persons who aid or counsel or direct the commission of a wrong are joint tort-feasors, but where acts of several distinct persons result in the same damage or wrong they do not for that reason alone become joint tort-feasors.

In Arneil v. Paterson, (1931) A.C. 560, two dogs belonging to different owners acting in concert attacked a flock of sheep and injured several. It was held that in law each of the dogs occasioned the whole of the damage as the result of the two dogs acting together. Each owner was responsible for the whole and not for the half.

Cook v. Lewis, (1925) 1 D.L.R. - This is an interesting case on this point. Two defendants hunting together fired simultaneously in the same direction, one of them injured the plaintiff, it was impossible to say which. On the issue in substance the Supreme Court of Canada held that the plaintiff would be entitled to recover against either defendant on the principle that where two defendants commit acts of negligence in circumstances that deprive the plaintiff of the ability to prove who caused his damage, the burden is on the defendant to prove absence of negligence and failing this both are liable. The defendants were neither joint tort-feasors nor several concurrent tort- feasors.

Contribution. - In a judgment against joint tort-feasors the damages awarded must be for single sum without any apportionment among the defendants and execution for the whole of this amount can, if the plaintiff so wishes, be levied against one of the defendants. Before the Law Reforms (Married Women and Tort-feasors) Act, 1935, the general rule was that he could get neither an indemnity for the whole of what he had paid nor contribution of an inadequate part of it as laid down in Merryweather v. Nixon. But the said Law Reforms allow to a tort-feasor to recover contribution from any other tort-feasor who is liable in respect of same damage whether as a joint tort-feasor or otherwise but he can not do so if that tort-feasor was entitled to be indemnified by him. For instance, if A and B before they commit a tort, agree that A shall indemnify B in respect of any liability arising therefrom and C, the injured party recovers damages from A. A cannot recoup himself against B, for if the tort is not an obviously wrongful one, the agreement to indemnify B is a lawful agreement and the law accordingly prevents A from getting contribution from B.

The Act provides that "the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage. Responsibility means the extent to which the wrong-doers caused the injury and not their relative culpability for it.

Ans. (B) The Joint Liability of Joint tort feasors arises under following three circumstances -

(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.

Ans. A release of one of several tort-feasors releases all the others even though it was not the intention of the parties for the reason that the cause of action which is one and indivisible, having been released, all persons, otherwise liable thereto are consequently released, Duck v. Mayen (1892) 2 Q.B. 511.

It should be noted that this rule of release also applies to a release by way of accord and satisfaction. But a mere agreement not to sue, however, has no such operation, but merely bars an action against that wrongdoer with whom it was made.

Again, if satisfaction is accepted a full and complete as against one person it operates in respect of the entire cause of action. But where there is an agreement with one joint tort-feasor, it is no bar to a decree against the others.

Lastly, the mere omission to sue some of the tort-feasors will not be fatal to the suit. The plaintiff (the injured party) can recover from the tort-feasors jointly or from any one of them severally and the Court will not enquire the amount of compensation that each one of the tort-feasors is liable to pay.

Ans. At Common Law no action for contribution was maintainable by one wrong doer against another, although the one who sought contribution might have been compelled to satisfy the full damages. This rule is known as the rule in Merrywaather v. Nixon, (1799) 8 T.R. 186.

In Merryweather v. Nixon, M and N jointly destroyed the machinery of one S. who brought an action against both and obtained a judgment for 840 pounds which he levied wholly on M. Then M brought an action against N for a contribution of the moiety. It was held that M could not recover.

The principle laid down in Merryweather v. Nixon is that defendant could neither get an indemnity for the whole of what he had paid nor a contribution of a part of it. In other words there is no contribution between joint tort- feasors.

But the correctness of the decision in Merryweather v. Nixon has been seriously doubted since the very date of its judgment. In Palmer v. Wickend Pulpency v. Town Steam Shipping Co. Ltd., (1894) AC 318, the House of Lords while negativing an attempt to extend the principle laid down in Merryweather v. Nixon, observed :

"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.

Ans. Definition of negligence. - Negligence in the law of torts has two meanings - If an independent tort; (2) a mode of committing certain torts. Thus negligence may mean a mental element in the tortious liability or it may mean an independent tort.

It consists in the omission to do something which a prudent and reasonable man would do or the doing of something which a prudent and reasonable man would not do and is actionable whenever, as between the plaintiff and the defendant, there is duty cast upon the latter. So actionable negligence consists in the neglect to the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect, the plaintiff has suffered injury to his person or property. [Heaven v. Pender, (1883) 11 Q.B.D. 503].

There are two rival theories about the nature and definition of negligence. According to one negligence is a state of mind; whereas according to the other, it is not a state of mind but merely a type of conduct. The former theory is called the subjective theory of negligence, the latter is called the objective theory of negligence.

Subjective Theory - According to Austin - Negligence is a faulty mental condition which is penalized by the award of damages.

"According to Salmond - "Negligence is culpable carelessness." According to Salmond, negligence essentially consists in the mental attitude of undue indifference with respect to one's conduct and its consequences."

Prof. Winfield also supports this theory. According to him - "As a mental element in tortious liability, negligence usually signifies total or partial inadvertence of the defendant to his conduct and for its consequences. In exceptional cases there may be full advertence to both the conduct and its consequences. But in any event, there is no desire for the consequences, and this is the touchstone for distinguishing it from intention.

Objective Theory - According to this theory negligence is not a particular state of mind or form of mens rea but a particular kind on conduct.

According to Clark and Lindsell, "Negligence is the omission to take such care as under the circumstances it is the legal duty of a person to take. It is in no sense a positive idea and has nothing to do with a state of mind."

Is Negligence a Specific Tort ?

In Donogbue v. Stevenson (1932) A.C. 562 - The House of Lords treated negligence as a specific tort where there is a duty to care. In this case the appellant drank a bottle of ginger beer which was brought from a retailer by her friend. The bottle in fact contained the decomposed body of a snail which was found out by her when she had already consumed a part of the contents of bottle. The bottle was of dark opaque glass sealed with a metal cap so that its contents could not be ascertained by inspection. The plaintiff brought an action against the manufacturer of beer to recover damages which she suffered due to serious effects on her health by shock and severe gastro-entritis. The plaintiff claimed that it was defendant's duty to have a system of work and inspection sufficient to prevent snails from getting into ginger beer bottles.

House of Lords held that the manufacturer of the bottle was responsible for his negligence towards plaintiff. Lord MacMillan observed -

"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.

Ans. Standard of Care - A man cannot be held responsible for every careless or negligent act. He is liable in negligence only if he is under a legal duty to take care. And that duty must be towards the plaintiff. The duty must also be in respect of particular conduct complained of. No definition of carelessness or negligence is possible. It can only be evaluated in the light of some norm, or standard, which the person making evaluation has in mind. Therefore, the courts have been forced to adopt a legal measuring rod or standard of care, to which the defendant's conduct must conform if he is to escape liability in negligence, the standard is not the highest possible standard to which a person might conceivably be expected to conform, the standard of the insurer, or even of the expert - nor yet the actual standard to which the defendant, possessed of the actual physical and mental quality with which nature has endowed him, might be expected to conform, but standard of the ordinary average reasonable man if he were placed in the defendant's circumstances.

The standard was accepted in various old cases but was definitely formulated by Tindal, C.J., in Vaughan v. Meulove, (1837) 3 Bing. N.C. 468, "instead of saying that the liability for negligence should be coextensive with the judgment of each individual which would be as variable as the length of foot of each individual, we ought rather to adhere to the rule which requires in all cases as regard to caution such as a man of ordinary prudence would observe." This standard was accepted in Blyth v. Birmingham Waterworks Co., (1936) 11 Ex. 781.

In Glasgow Corp. v. Muir, (1943) A.C. 448 - It was observed that the standard of care of a reasonable man involves in its application a subjective element as it is the judge who decide what in the circumstances of a particular case, the reasonable man would have had in contemplation and what accordingly the party sought to made liable, ought to have foreseen.

Ans. The general rule is that the onus of proving negligence is on the plaintiff. He must show that he was injured by an act or omission for which the defendant is in law responsible. There must be proof of some duty owned by the defendant to the plaintiff. Some breach of that duty and an injury to the plaintiff. Further it must be shown that the negligence is the proximate cause of the damage. Where the proximate cause is the malicious act of third person against which precaution would have been imperative the defendant is not liable in the absence of a finding either that he instigated it or that he ought to have foreseen and provided against it.

It was laid down in K.C. Kumaran v. Vallabhadas Vasanji and others, A.I.R. 1969 Kerala 9, that in suit for damages for injuries caused by an accident the initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff. Once this onus is discharged, it will be for the defendant to prove that the incident result of inevitable accident or contributory negligence on the part of the plaintiff. The onus of proving contributory negligence is on the defendant.

Exceptions - To the general rule that in an action for negligence it is for the plaintiff to prove negligence on the part defendant, there, are certain exceptions in which cases the onus is on the defendant, and it is for the defendant to prove that the injury caused to the plaintiff was not due to his negligence. These exceptions are as under -

(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.

Ans. Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on the part of the defendant, there are, however, certain cases when the plaintiff need not prove that and the inference of negligence is drawn from the facts. There is a presumption of negligence according to the maxim `res ipsa loquitur' which means the thing speaks for itself for it tells its own story.

When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent the law raise a presumption of negligence on the part of the defendant. In such a case it is sufficient for the plaintiff to prove accident and nothing more. The defendant can, however, avoid his liability by disproving negligence on his part (rebuttal of the presumption of negligence).

In Delhi Municipal Corp. v. Subhagwanti, AIR 1966 SC 1750 Delhi Municipal Corporation was owner of the Clock tower. The tower collapsed and one Subhagwanti's husband died. It was a very old tower and was not inspected properly by engineers of corporations. It's material had lost validity and possessed no cementing capacity. It was held that circumstances of the case speak clearly that Municipal Corporation of Delhi was negligent and therefore plaintiff is not under duty to prove the negligence of defendant according to maxim `Res ipsa Loquitur', it is duty of defendant (D.M.C.) to prove that it was not negligent.

Therefore the maxim `Res ipsa Loquitur' suggests that in the circumstances of a given case the `res' speaks for itself because the facts stand unexplained and the natural and reasonable inference which can be drawn from the facts is that some person's negligent conduct is responsible.

Essential Conditions - The following conditions must be fulfilled for res ipsa loquitur to come into play -

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."

Ans. Contributory Negligence - Contributory negligence is negligence in not avoiding the consequence arising out of the negligence of some other person, when means and opportunity are offered to do so. It occurs when the plaintiff does not exercise such ordinary care, diligence and skill which would have avoided the consequences of defendant's negligence. Where such conduct can be proved it is fatal to any action for injury. Thus, a man who keeps his hand outside the window of a railway coach or hangs on the foot board knowing the risk involved in such act invites the injury himself and cannot claim damages. The term negligence in this context does not ordinarily mean any breach of duty to another but only failure to take reasonable care of one's own self. The principle underlying the doctrine contributory negligence is that when both the parties are equally to blame, neither can hold the other liable. It is in application of the rule as to remoteness of damages.

In Union of India v. Hindustan Lever Ltd. and others, AIR 1975 P & H 269 - It was held in that case that - "Contributory negligence is an expression which implies that the person who has suffered damage, is also guilty of some negligence and has contributed towards the damage. In such case the court has power to apportion the loss between the parties who can be held guilty of negligence by act or omission on their part as it deems just and equitable."

In Butterfield v. Forrester, (1809) 11 Est. 60, the defendant wrongfully obstructed a highway by putting a pole across it. The plaintiff, who was riding violently in the twilight on the road collided against the pole and was thrown from his horse and injured. If the plaintiff had been reasonably careful he could have observed the obstruction at a distance of 100 yards and thus avoided the accident. It was held that the plaintiff had no cause of action as he himself could have avoided the accident by exercising due care. Lord Ellenborough C.J. said : "One person being in fault will not dispense with another's using ordinary care for himself. Two things must occur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff."

This rule worked a great hardship particularly for the plaintiff because for a slight negligence on his part he may lose his action against a defendant whose negligence was the main cause of damage to the plaintiff. The courts modified the law relating to contributory negligence by introducing the so called rule of `Last Opportunity' or `Last Chance'.

The Last opportunity rule. - According to this rule when two persons are negligent, that one of them, who has the later opportunity of avoiding the accident by taking ordinary care, should be liable for the loss. It means that if the defendant is negligent and the plaintiff having a later opportunity to avoid the consequences of the negligence, of the defendant does not observe ordinary care he cannot make the defendant liable for that. Similarly, if the last opportunity to avoid the accident is with the defendant he will be liable for the whole of the loss to the plaintiff. The case of Davies v. Mann, (1842) 10 M. and W. 546 explains the rule. In that case the plaintiff fettered the forefeet of his donkey and left in a narrow highway. The defendant was driving his wagon driven by horses too fast that it negligently ran over and killed the donkey. Inspite of his own negligence the plaintiff was held entitled to recover because the defendant had `last opportunity' to avoid the accident. If that were not so, said Park, B, "a man might justify the driving or goods left on a public highway or even over a man lying asleep there, or purposely running against a carriage going on the wrong side of the road." The above stated case was approved by the House of Lords in Radly v. L. and N.W. Ry, (1876) 1 A.C. 759.

The Law Reform (Contributory Negligence) Act, 1945. - This Act was passed to remove the anomalies prevailing in the Common Law doctrine of contributory negligence. The Common Law did not make any provision for apportioning the damages in a case where the question arose whether the plaintiff shall recover his whole damage or nothing. The rule denying relief to a person guilty of contributory negligence is analogous to that denying contribution to a joint tort-feasor. In either case one of the two joint wrong-doers bears the whole burden of the damages or loss resulting from their conduct. In England the latter rule has been abrogated by the Law Reform (Married Woman and the Tort-feasor) Act, 1935, and a court can now apportion the loss among joint wrong-doers according to their respective fault, as in case of Maritime Collisions. In 1939 the Law Revision Committee under the Chairmanship of Lord Wright recommended the abolition of the Common law rule of contributory negligence and enactment in its place or apportionment of claim prevailing in the case of Maritime Collision since 1911. Accordingly, now the Law Reform (Contributory Negligence) Act, 1945, had been enacted with effect from June 15, 1945 abrogating the Common law rule of contributory negligence and providing for an apportionment of liability in case of contributory negligence.

Section 1(1) of the Act provides as follows :

"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.

Ans. Trespass to land means "interference with the possession of land without justification." Trespass is actionable per se and the plaintiff need not prove any damage for an action of trespass. To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage is necessary. "Every invasion of a private property, be it even so minute, is a trespass". Trespass may be committed (1) by entering upon the land of plaintiff, or (2) by remaining there, or (3) by doing an act affecting the sole possession of the plaintiff, in each case without justification.

Trespass could be committed either by a person himself entering the land of another person or doing the same through some material object e.g. throwing of stones on another person's land, driving nails into the wall, placing ladder against the wall, allowing the diffusion of gas or invisible fumes, leaving debris upon the roof, allowing cattle to stray on another person's land. It is, however, no trespass when there is no interference with the possession and the defendant has been merely deprived of certain facilities like gas and electricity.

`Trespass' is different from `nuisance'. In trespass the interference with the possession is direct and through some tangible object. In nuisance, the interference is not direct but consequential and there is impairment of the enjoyment of property. To throw stones upon one's neighbour's premises is a wrong of trespass, but to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance. Similarly, planting a tree on another's land is a trespass but if a person plants a tree over his land and its roots and branches escape on the land of the neighbour that will be a nuisance. Trespass is actionable per se while nuisance is actionable only on proof of damage.

In the following cases a person may lawfully claim to enter upon another's land -

(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.

Ans. The action for trespass, besides being used to remedy trespass as a pure tort, has also some varieties which are employed of land and the profits thereof. A person whose land has been trespassed may have the following remedies :-

(1) Re-entry. - If a person's possession of land has been disturbed by trespasser, he can enter or re-enter his premises by the use of reasonable force. In Hemmings v. Stoke Poges Golf Club, (1990) 1 K.B. 720, the plaintiff tenant of a cottage owned by the defendant, refused to quit after notice had been duly given to him. The defendants, thereupon entered into the cottage and removed the plaintiff and his furniture with the required force only. Plaintiff used the defendants for assault, battery and trespass, and they were held not liable.

(2) Ejectment. - By bringing an action of ejectment, or as it should now be called, the action for recovery of land, a person dispossessed of land can recover it specifically. A rule that has been repeatedly asserted is that an action of ejectment the plaintiff must recover by the strength of his own title and not by the weakness of the defendants. (Martin'd Tregonwell v. Strachan, (1742) 5 T.R. 107). The defendant need only allege that he is in possession, and the plaintiff must positively prove that his own title is better. In India under Section 6 of the Specific Relief Act, 1877, the plaintiff can, in a suit for possession succeed, simply on the basis of his previous possession. It has been held in a large number of cases that de facto possession is a good title against all except the true owner and entitles the possessor to maintain successfully a suit for possession against any other person who has dispossessed him.

(3) Mesne Profits. - In an action for recovery of land the plaintiff can join a claim for mesne profits. It is a meant to compensate the plaintiff for the loss suffered by him because of having been out of possession of his own land. In awarding the mesne profits, court takes in view the fact the loss which might have been suffered by plaintiff for being out of possession of own land and to put plaintiff in the position in which he would have been but for trespass to his land.

Ans. Tort affecting moveable property are :-

(1) Trespass To Goods

(2) Trespass ab initio

(3) Detention

(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.

Ans. Distinction between Trespass and Conversion

(1) Trespass is essentially a wrong to the actual possessor and therefore cannot be committed by a person in possession. Conversion, on the other hand, is a wrong to the person entitled to immediate possession (the actual possessor is frequently, but not always, the person entitled to immediate possession). Sometimes a person entitled to immediate possession is allowed to sue in trespass so that the conversion may, but does not necessarily, include trespass.

(2) To damage or meddle with the chattel of another, but without intending to exercise an adverse possession over it, is a trespass. In an action for conversion, the defendant's intended act must amount to denial to the plaintiff's right/title to the goods to which he is lawfully entitled. Thus removing the goods from one place to another may be trespass but it is not conversion. A simple aspiration of a chattel without intention of making any further use of it, is not sufficient to establish a conversion though it may be a sufficient foundation of a trespass action [Fouldes v. Wiloughby (1842) 8 M and W 540].

(3) The gist of the action, in trespass is the force and direct injury inflicted; in conversion, it is the deprivation of the goods or their use. If a person snatches my gold ring with a view to steal it, the act amounts to both trespass and conversion. But if a person borrows my ring for his use but later on sells it he will be liable for conversion only.

(4) There will be difference in the measure of damages in both, for usually in conversion the full value of the goods will represent the damages whereas in trespass the interference may be of such a trivial nature that the damages will be nominal.

Ans. Trespass to person. - Trespass in its widest sense signifies any transgression or offence against the law of nature, of society, or of the country relating to man, person or property. Any person who commits a trespass to the person of another whether by assault, battery or false imprisonment, without lawful justification commits a tort.

Kinds of trespass to the person. - The following are three kinds of trespass to the person :-

(1) Assault;

(2) Battery;

(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."

Ans. An action lies for an assault and criminal proceedings may also be taken against the wrong-doer. The fact that the wrong-doer has been defined by a criminal court for an assault is no bar to a civil action against him for damages. The previous conviction of the wrong-doer in a criminal court is no evidence to a civil action against him for damages and the previous conviction is no evidence of the assault. The factum of assault must be tried in the civil court. However, a plea of guilt in the criminal court may be considered in evidence in a civil court.

Defence to an action for an assault or battery :- Assault and battery may be justified on the following grounds-

(i) Defence of person. - The ordinary rule that a person when attacked by another should be permitted to defend himself. But the defendant must not reply to the plaintiff's assault or trespass with a force and spirit quite disproportionate to the protection.

The force used in self-defence should be of such intensity which is enough to ward off the attack and not to retaliate or a teach lesson to the attacker. It should be noted that the use of force in self-defence, would be legally permissible only if -

(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.

Ans. 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."

In Bird v. Jones (1945) 7 Q.B. 742 False imprisonment is a total restraint of liberty of a person for however short time, without lawful excuse.

So it is an unjustified act of arrest, imprisonment or otherwise preventing a person from exercising his right of movement.

The Delhi High Court in its case Ram Pyaree v. Om Prakash, 1977 Cr.L.J. 1948 (Del), has pointed out that in action for recovery of damages for committing the tort of false imprisonment, the plaintiff is only required to prove that he was imprisoned and that the same was caused by the defendants or his servants acting in the course of employment.

On proof of these facts, the plaintiff succeeds in establishing the same and it is for the defendants, to prove the lawful justification for the same and it is not for the plaintiff to prove its absence. It is not necessary for the plaintiff to prove any wrongful intention, malice, negligence or improper motive on the part of the defendant.

Ingredients. - In an action for false imprisonment the plaintiff must prove the following :-

(i) The complete restraint of liberty. - To establish the tort of false imprisonment it is essential that there be a complete deprivation of liberty, that is, there should be a boundary drawn on every side beyond which he can not pass.

In Onkarmal v. Banwari Lal, (A.I.R. 1962 Raj. 127), it was held that in order to establish false imprisonment it is essential that there must be a total restraint for however short a time on the liberty of a person without lawful justification and actual imprisonment in a jail is not necessary.

Even if a person has the means to escape from the detention but does not know it, it is submitted that his detention is nevertheless false imprisonment unless any reasonable man would have realised that he had an available outlet.

(ii) The plaintiff need not prove the actual imprisonment in the sense of imprisonment in a jail. He must prove, however, that there is a complete deprivation of liberty. Thus, no action lies where the plaintiff is unlawfully prevented from going in a particular direction.

In Bird v. Jones (1845) 7 Q.B. 742 the defendants wrongfully enclosed part of the public footway on Hammersmith Bridge, putting seats in it for the use of spectators of regatta on the river and charged for admission to the enclosure. Plaintiff insisted on passing along this part of the footpath and claimed over the fence of enclosure without paying charges. Defendant refused to let him to go forward but he was told that he might go back into carriage way and cross to the other side of the bridge if he so wished. Plaintiff declined to do so and remained in the enclosure for half an hour. It was held defendant is not liable for false imprisonment.

(iii) It is not necessary to prove that there is an actual physical restraint. There is an imprisonment where a man threatens or declares his intention of arresting another with a show of authority to which the other submits (Meering case).

(iv) Not expressly or impliedly authorised by law. - The detention must be lawful. If it is made in pursuance of powers vested in the defendant by the law, no action lies.

(v) No action for false imprisonment lies for wrongful abstaining an order or judgment for false imprisonment from a Court of Justice, though erroneous, irregular and without jurisdiction. The reason is that a man is liable only for the acts of himself or his agent, and a court is no man's agent.

(vi) If a person procures ministerial officers to arrest unlawfully, or execute a false order in such a way as to make them his agent, he may be liable for false imprisonment, but merely giving false information on which the ministerial officers choose to act is insufficient; there must be actual direction or authorisation to constitute them the informant's agent.

In Christie v. Leachinsky, 1974 A.C. 573, the police arrested the respondent without a warrant for an alleged misdemeanour. They did this under a mistaken impression that a local statute authorised arrest without warrant. When they were sued for false imprisonment they pleaded that they had reasonable ground for suspecting that the respondent had also committed the felony of larceny. The House of Lords held that the plea was bad because the police had not informed the respondent of any charge of larceny.

(vii) Failure to afford facility for leaving premises is not false imprisonment.

Ans. The term `nuisance' has exhaustive and diverse definitions. The word `nuisance' is derived from the French word nuire, to do hurt, or to annoy. In Durga Prasad v. State (AIR 1962 Raj 92), it was observed that `nuisance' ordinarily means anything which annoys, hurts or that which is offensive.

Nuisance as a tort means an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it (Prof. Winfield). Acts interfering with the comfort, health or safety are the examples of it.

Nuisance is the wrong done to do a man by unlawfully disturbing him in the enjoyment of his property, or, in some cases, in the exercise of a common right (Pollock).

According to Prof. Winfield - nuisance is incapable of exact definition but for the purposes of the law of tort, it may be described as "unlawful interference with a person's use or enjoyment of land or of some right over, or in connection with it."

According to Salmond - "the wrong of nuisance consists in causing or allowing without lawful justification (but so as to common to trespass) the escape of any deterious thing from his land or from his land or from elsewhere into land in possession of the plaintiff e.g., water, smoke, smell, fumes, gas, noise, heat, vibration electricity, disease, germs, animals, negligence."

According to Clarke and Lindsell - "Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of -

(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 :-

(1) Abatement

(2) Damages

(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.

Ans. The tort of strict liability had its origins in nuisance but this has developed in such a way that it is now quite distinct for nuisance. Liability for dangerous chattels is an instance of strict liability which has been depicted by the rule in the leading case on the subject - Rylands v. Fletcher.

This is the leading case which has developed the rule of strict liability for the first time. It conceives the liability for the escape of dangerous things.

Simply stated the rule of Strict liability' makes the defendant liable for accidental harms caused without any intention and negligence on his part. In other words, sometimes the law recognises `no fault' liability. The undertakers of the hazardous or dangerous activities have to compensate for the damage caused irrespective of any carelessness on their part.

The basis of liability is the foreseeable risk inherent in the very nature of the activities.

In Rylands v. Fletcher (1868) LR 3 HL 330, the defendant got a reservoir constructed through independent contractors over his land for providing water to his mill. When the reservoir was filled, water flowed down the plaintiff's neighbouring coal mine causing damage. There was some negligence on the part of the contractors in not properly sealing disused mine shafts which they had come across during the construction of the reservoir and it was through those shafts that the water flooded the plaintiff's mine. As the engineers were independent contractors, the defendants could not be made vicariously liable for their negligence. Even though the defendant had not been negligent he was held liable.

The basis of liability was laid down by Blackburn, J. in these words :-

"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."

Ans. Rule of Absolute Liability :- Rule of absolute liability was evolved by Supreme Court of India in M.C. Mehta v. Union of India, AIR 1987 SC 1086 by going beyond to what rule of strict liability says as laid down in Rylands v. Fletcher's Case.

In M.C. Mehta and another v. Union of India and others, AIR 1987 SC 1086, the Supreme Court has held laid down that-

An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the person harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous of inherently dangerous activity. If the 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 arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on the such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. Therefore where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious. Principle of strict liability under the rule in Rylands v. Flectcher.

In this case Shri Ram Food and Fertilizer Industries were engaged in manufacture of caustic soda and chlorine including its bye-products. Some persons suffered harm on account of escape of oleum gas compensation for the harm, compensation was claimed in Supreme Court. Supreme Court while granting compensation to victims has evolved the rule of absolute liability for industries engaged in hazardous or inherently dangerous activities. It expressly held that new rule was not subject to any of the exceptions under the rule of Rylands v. Fletcher.

Measure of Liability - Supreme Court observed :-

"This rule (Ryland v. Fletcher) evolved in the 19th Century at a time when all these developments of science and technology had not taken place------we have to evolve new principles and new norms which would adequately deal with the new problems which arise in highly industrialized economy.

The Court introduced a new "no-fault" liability standard ("absolute" liability or "stricter than strict" liability) : Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. Such enterprise owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone. It should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

The bases of the new rule as indicated by the Court are two :

(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.

Ans. Any person who possesses a chattel is bound -

(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.

Ans. Defamation :- The right to the enjoyment of a good reputation is a valuable privilege, of ancient origin and necessary to human society. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Right of reputation of a person is an asset just as any other property and any injury to it is as much actionable as an injury to man's tangible property. Defamation is a tort which injures reputation and is therefore actionable. The defamation consists in using any language or representation, oral or written, tending to bring the person to whom it is published into hatred, ridicule or disgrace or to injure him in respect of his vocation.

According to Prof. Winfield - "Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generality or which tends to make them shun or avoid that person."

In S.N.M. Abdi v. Prafulla Kumar Mohanta, AIR 2002 Gouhati 75 - it was observed that in order to be defamatory a publication must tend to lower the plaintiff in the opinion of men whose standard of opinion, the court can properly recognise or tend to induce them to entertain an ill opinion of him. However the plaintiff need not to show a tendency of the imputation to prejudice him in the eye of every one in the community or all of his associates, but it is suffice to establish that the publication tends to lower him in the estimation of a substantial, respectable group, even though they are a minority of the total community or of plaintiff's associates.

Kinds of Defamation ; Defamation, which is the generic name for the wrong, which has following forms :-

(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.

Ans. Slander is actionable only on proof of special damage. Mere loss of reputation is not sufficient to constitute an action for spoken words. But there are five exceptions to this rule. These exceptions are as under-

(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.

Ans. Difference Between Libel and Slander - Difference between `Libel' and `Slander' are following -

1. Libel is a representation made in some permanent form e.g. writing printing, picture, effigy or statute. Any thing which has a permanent and visible character is known as libel. In a cinema film not only the photographic part is considered to be a libel but also the speech which synchronises with it is also a libel.

Slander is the publication of defamatory statement in a transient form e.g. spoken words or gestures. Slander is like rumours and gossips addressed to the ears of the listeners (libel is addressed to the eye).

2. While libel is both a civil and criminal wrong and offence, slander is merely a civil wrong, except in certain cases where the spoken words are blasphemous, seditious, obscene and such as may amount to contempt of the court.

3. Further, libel is actionable per se as it is of itself an infringement of right while slander is actionable only on proof of special damage, save in exceptional cases e.g. when the slander contains imputation of a criminal offence punishable with imprisonment, chastity or adultery to a woman, dishonesty in any office, etc.

4. A slander may be uttered in the heat of moment, and under a sudden provocation; the reduction of the charge into writing and its subsequent publication in a permanent i.e. libel form show greater deliberation and raise a suggestion of malice.

5. A libel conduces to a breach of the peace; a slander does not. This distinction which is recognised in the English Law is severely criticised by the framers of the Indian Penal Code.

6. Under the English statute of limitation an action of libel is barred after 6 years, but of slander after two. In India, the period of limitation is one year for both.

The above stated distinctions do not find any place in India. Under Indian criminal law libel and slander are treated alike, both of them are considered to be an offence.

Ans. The innuendo - Sometimes the statement may prima facie be innocent but because of some latent or secondary meaning it may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation he must prove the latent or secondary meaning i.e. innuendo, which makes the statement defamatory.

So by `Innuendo' is meant the explanatory statement that though the words were not libellous in their ordinary meaning they had in fact, a libellous meaning in the circumstances of the case.

Rule of Innuendo - The law of pleadings require that when a statement is prima facie innocent but the plaintiff alleges a defamatory significance to it he must, in his pleadings set forth the circumstances which make it defamatory. In other words he must prove an `innuendo'. So the rule is that whenever the words are not defamatory in their ordinary sense the plaintiff alleges in his statement of claim an `innuendo' and must prove the facts necessary in satisfying the jury that the meaning alleged in an innuendo was the meaning of the words.

In Capital and Counties Bank v. Henty and Sons (1882) 7 A.C. 741, there was a dispute between Henty and Sons and one of the branch managers of the plaintiff Bank. The defendants who used to receive cheques drawn on various branches of the Bank sent a circular to large number of their customers stating that they would not receive payment in cheques drawn on any of the branches of the plaintiff Bank. The Bank sued Henty and Sons for libel alleging that the circular implied an insolvency of the Bank. Held, that the words of the circular taken in their natural sense did not convey the supposed imputation and the reasonable people would not understand it in the sense of the innuendo suggested. There was, therefore no libel.

One of the best known case on the application of the rule of innuendo was Tolly v. Fry and Sons Ltd., (1931) A.C. 333. The plaintiff, a famous amateur golfer, was caricatured by the defendants, without his knowledge or consent, in an advertisement of their chocolate which depicted him with a packet of it protruding from his pocket. A caddy was represented with him, who also had a packet of chocolate the excellence of which he likened, in some doggerel verse, to the excellence of the plaintiff's drive. The plaintiff alleged in his innuendo that the defendants thereby meant that the plaintiff had agreed to let his portrait be exhibited for advertisement, that he had done this for gain, and that he had thus prostituted his reputation as an amateur golfer. The House of Lords held that the caricature as explained by the evidence, was capable of being thus construed, for golfers that any amateur golfer who assented to such advertisement might be called upon to resign his membership of any reputable club, and it also appeared from correspondence between the defendants and their advertising agents that they were quite aware of the possible effect of the advertisement on the plaintiff amateur status.

The line between the true and the false innuendo may sometimes be difficult to draw, for it may depend upon the obscurity of the words themselves. In such a case the better practice is to plead the natural and ordinary meaning and the innuendo as alternative.

Cassidy v. Daily Mirror, (1929) K.B. 331. - The defendant published a photograph of M.C. and a Miss X with the statement "Mr. M.C. the race horse owner and Miss X, whose engagement has been announced." It was held that the publication was capable of conveying a meaning defamatory of the plaintiff, meaning thereby that she was not lawful of M.C. and was living with him in immoral cohabitation. The innuendo was considered right and damages were awarded.

Ans. Damages for Defamation. - The Bombay High Court in the case of R.K. Karanjia v. Krishnaraj M.D. Thackersey, reported in AIR 1970 Bombay 424 has quoted a passage of Lord Justice Diplock in the case of Mc. Carey v. Associated Newspapers Ltd., (1964) 3 All ER 947 at p. 959. The said passage reads as follows :

"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.

Ans. Privileges acts under the law of torts. - There are certain pervilaged occasions which require that a person should be allowed to express himself without fear of being subjected to liability for defamation. In such cases the interest of the plaintiff in his reputation is outweighed by the interest of the defendant or the society. If the plaintiff sues for defamation the defendant in defence can plead that the statement alleged to be defamatory was privileged. The privileges, may be of two kinds :

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.

Ans. Malicious Criminal Prosecution Malicious prosecution is institution of unsuccessful criminal or bankruptcy or Liquidation proceedings maliciously without reasonable or probable cause. In Kumputty Sahib v. Veerankuty, AIR 1950 Kerala 264 - It was observed that Malicious criminal prosecution is the institution against an innocent person of unsuccessful criminal proceedings without reason and probable cause and in a malicious spirit that is from an indirect and improper mode and with the motive of causing damage of the plaintiff in person, pocket or reputation.

Facts To Be Proved By Plaintiff In Action For Malicious Prosecution - In an action for malicious prosecution, the plaintiff must prove that -

(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.

Ans. Difference Between Malicious Prosecution and False Imprisonment - Following are points of difference between Malicious Prosecution and false imprisonment -

(i) False imprisonment is wrongfully restraining the personal liberty of the plaintiff whereas the Malicious prosecution is wrongful setting the criminal law in motion against him.

(ii) In false imprisonment it is the act of the defendant itself or `its' again which has caused the injury to the plaintiff whereas in Malicious prosecution it is the act of the court, although at the instance of the defendant which has caused the injury complained to the plaintiff.

(iii) In false imprisonment, the personal liberty of the plaintiff is wrongfully restrained by a private individual either personally or by setting a ministerial officer in motion whereas in malicious imprisonment or malicious prosecution often turns upon the question whether the defendant has set a ministerial or judicial officer in motion.

In Austin v. Dowling, (1870) L.R. 5, Justice Wiles observed -

"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.

Ans. An action will not lie for civil proceeding instituted maliciously and without reasonable and probable cause because the unsuccessful defendant who is unreasonably sued is compensated by a decree in his favour which gives him his costs against the plaintiff.

But where there is damage to credit or reputation, an action will lie. Similarly as held in Har Kumar De v. Jagat Bandhu De, AIR (1926) Cal. 1008 a suit for damages for wrongfully obtaining a temporary injunction is maintainable.

Similarly, an action will lie for civil proceedings instituted maliciously and without reasonable and probable cause where damage resulting for civil action cannot be compensated by an order for costs - Ah Fong v. Namkee, (AIR 1932 Rangoon 289).

It should be noted that in an action for the abuse of civil proceedings the plaintiff will have to prove the same points as in an action for malicious prosecution.

Lastly, Section 35A of the Code of Civil Procedure provides for compensatory costs in respect of false or vexatious claims.

In Daya Ram and others v. Ganesh Ram, AIR 2000 Raj. 377 - It was held that there is no express bar to the maintainability of suit against malicious proceedings claiming damages for malicious proceeding and sub-section (4) of Section 35-A C.P.C. makes it clear that the amount of any compensation awarded u/s 35-A shall be taken into account in any subsequent suit for damages or compensation in respect of claim in respect of false or vexatious claim or defence. This is a clear indication that suit is maintainable.

Ans. There occurs an abuse of legal precess when the process of law is put into motion maliciously and without any reasonable and probable cause, it being wrongful and thereby another is prejudiced in property or person, there is that conjunction of injury and loss for which an action shall lie. Absence of reasonable and probable cause for taking legal action is an evidence of motive - Brown v. Happas, (1891) 2 Q.B. 718.

It should be noted that the proceedings must terminate in favour of the plaintiff. But if the defendant has dropped the proceeding, it is not necessary for the plaintiff to show that the proceedings ended in his favour - Nicholas v. Sivarama Ayyar, (1922) 45 Madras 57.

Section 95 of the Code of Civil Procedure provides for compensation where an arrest or attachment before judgment has been effected or a temporary injunction has be granted -

(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.

Ans. Tort of Mental and Nervous Shock - In law of torts a person is responsible for causing mental shocks too. The shock which affects nerves and brain is also a civil wrong. Such shocks may affect human body. In the law of torts it is considered as personal injury. It also arises out of the act of the defendant. The English Law relating to shocks has been accepted in India. It has been recognised that not only physical injuries are subject-matter of tort but law takes into consideration psychological injuries also. The true nervous shock is as much a civil injury as a broken bone or torn flesh wound.

Thus an action would lie for injury by shock, sustained through the medium of eye or the ear without any direct contract. Damages resulting out of nervous shock may be obtained from the defendant. In order to recover damages, it is not necessary that shock should be of such nature which arises from reasonable fear of immediate personal injury. Even if there is breach of ordinary duty, the action shall lie. It is not necessary that in nervous shock the element of safety ought to be involved.

It was held in Owners Liverpool v. Corporation, (1919) K.B. 394 that the alleged shock results from apprehension as to a less important matter. False words and threats calculated to cause physical injury to a person is also actionable. The damage must be attributed to the direct injury.

Similarly in Hambrooke v. Stokes Brothers, (1925) 1 K.B. 141, where defendant's unattended lorry moved in slope and caught high momentum, the plaintiff was frightened for the safety of her children playing in that street. She suffered nervous shock. The defendant was held liable to compensate. Lord Alking in the case said - "Personally, I see no reason for excluding the by-stander in the highway who receives the injury in the same way from apprehension of or by actual sight of injury to the third party."

In King v. Berry - The wife suffered a nervous shock while witnessing an accident in which her husband was killed and children were injured. The plaintiff had robust health and was a very competent person. Had she not personally seen the incident she would have stood up to the situation although she would have been sorrowful on hearing it. 4000 pounds were awarded as damages.

According to Prof. Winfield, the principles for deciding liability of the defendants in nervous shock are as under -

(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).