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Law on Tort

Definition of Tort-

Tort derived from the Latin word ‘tortum’, which means ‘to twist’. It includes that conduct which is not straight or
lawful. It is equivalent to the English term ‘wrong’.

Salmond- It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is
not exclusively the breach of a trust or other merely equitable obligation.

We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other
than a mere branch of contract or breach of trust.

Distinction between Tort and crime-

Tort Crime

i) Less serious wrongs are considered as private i) More serious wrongs have been considered to be
wrongs and have been labelled as civil wrong. public wrongs and are known as crimes.

ii) The suit is filed by the injured person himself. ii) The case is brought by the state.

iii) Compromise is always possible. iii) Except in certain cases, compromise is not
possible.

iv) the wrongdoers pays compensation to the injured iv) The wrongdoer is punished.
party.

Distinction between Tort and breach of contract-

Breach of contract Tort

i) It results from breach of a duty undertaken by the i) It occurs from the breach of such duties which are
parties themselves. not undertaken by the parties but which are imposed
by law.

ii) In contract, each party owes duty to the other. ii) Duties imposed by law of torts are not towards any
specific individual but towards the world at large.

iii) Damage of contract is liquidated. iii) Damage of tort is unliquidated.

iv) It provides limited remedy iv) It provides unlimited remedy.

Distinction between Tort and Breach of trust-


Tort Breach of Trust

i) Damage of tort is unliquidated. i) Damage of breach of trust is liquidated.

ii) Law of tort was part of common law. ii) Law of trust was part of Court of Chancery.

iii) Tort is partly related to the law of property. iii) Trust is a branch of law of property.

Latin terms and maxims-

Causa causans- An immediate and effective cause.

Causa sine quanon- A necessary cause; the cause without which the thing cannot be or the event would not have
occurred.

Some preceding link but for which the causa causans, that is, the immediate cause could not have become operative.

East India Commercial Co. v. Collector of Customs, AIR 1962-

Municipal Board v. State Transport Authority, AIR, 1965-

Prem Bus Service v. R.T.A, AIR 1968-

Chockalingam v. C.I.T, AIR, 1963-

Inayatullah v. Custodian, Evacuee Property, AIR, 1958-

Volenti non fit injuria- There is no injury to one who consents.

Hall v. Brooklands Auto Racing Club- The plaintiff was a spectator at a motor car race being held at Brooklands on
a track owned by the defendant company. During the race, there was a collision between two cars, one of which was
thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of
such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable.

Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two strangers took lift
in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two
strangers were thrown out and sustained injuries, and one of them died as a consequence of the same.

It was held that neither the driver nor his master could be made liable, first, because it was a case of sheer accident
and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was
applicable to this case.

Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking photographs at a horse show while he was
standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the bend too fast. As
the horse galloped furiously, the plaintiff was frightened and he fell into the horses’ course and there he was
seriously injured by the galloping horse. The horse in question won the competition. It was held that since the
defendants had taken due care, they were not liable. The duty of the defendants was the duty of care rather than duty
of skill.
Ex turpi causa non oritur actio – No action arises from a wrongful consideration.

Hardy v. Motor Insurers’ Bureau- This was a case where a security officer was dragged along when he tried to stop
a car. Lord Denning MR said: ‘no person can claim reparation or indemnity for the consequences of a criminal
offence where his own wicked and deliberate intent is an essential ingredient in it… It is based on the broad rule of
public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a
disability precluding him from imposing a claim.’

Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On
hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first
instance, the defendant successfully raised the defence of ex turpi to avoid the claim.

Damnum sine injuria – Damage without wrongful act; damage or injury inflicted without any act of injustice; loss
or harm for which there is no legal remedy. It is also termed damnum absque injuria.

There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not
hold him accountable for it.

Gloucester Grammar School Case- 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 from 40 pence to 12 pence per scholar per quarter.
It was held that the plaintiffs had no remedy for the loss thus suffered by them.

Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies combined together and drove
the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the
plaintiff had no cause of action as the defendant had by lawful means acted to protect and extend their profits.

Ushaben v. Bhagyalaxmi Chitra Mandir – The plaintiffs sued for a permanent injunction against the defendants to
restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious
feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were
ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no
person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act,
merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right,
request of injunction was rejected.

Action v. Blundell – The defendants by digging a coal pit intercepted the water which affected the plaintiff’s well,
less than 20 years old, at a distance of about one mile. Held, 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 drains off the water collected from underground springs in
the neighbour’s well, this inconvenience to his neighbour falls within description damnum abseque injuria which
cannot become the ground of action.

Injuria sine damno- This maxim means injury without damage. Wherever there is an invasion of a legal right, the
person in whom the right is vested is entitled to bring an action and may be awarded damages although he has
suffered no actual damage. Thus, the act of trespassing upon another’s land is actionable even though it has done the
plaintiff not the slightest harm.

Ashby v. White –

Bhim Singh v. State of J & K – The petitioner, an MLA, of J & K Assembly, was wrongfully detained by the police
while he was going to attend the Assembly session. He was not produced before the Magistrate within the requisite
period. As a consequence of this, the member wad deprived of his constitutional right to attend the Assembly
session. There was also violation of fundamental right guaranteed under the Constitution. By the time the petition
was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary
damages amounting to 50,000 were awarded to him.

Terminologies

Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury
of another, or to do intentionally a wrongful act toward another without justification or excuse.

In its legal sense it means a wrongful act done intentionally without just cause or excuse.

Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types:

i) Malice in fact

ii) Malice in law

Malice in fact – Means an actual malicious intention on the part of the person who has done the wrongful act. It is
also called express or actual malice.

Malice in law – It is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and
of the legal rights of the citizen.

Motive – Motive is that which incites or stimulates a person to do an act. It is the moving power which impels to
action for a definite result.

Motive is mainspring of human action. It is cause or reason. It is something which prompts a man to form an
intention.

Intention – A settled direction of the mind towards the doing of a certain act; that upon which the mind is set or
which it wishes to express or achieve; the willingness to bring about something planned or foreseen.

Injury- In legal parlance, ‘injury’ means any wrong or damage done to another, either in his person, rights,
reputation or property.

Meaning under Penal Code, 1860 (section 44) – the word injury denotes any harm whatever illegally caused to any
person, in body, mind, reputation or property.

Hurt – Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Malfeasance – it is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects,
interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law
or which a person ought not to do at all, or has contracted not, to do.

The word ‘malfeasance’ would apply to a case where an act prohibited by law is done by a person. (Khairul Bahsar
v. Thana Lal AIR 1957)

Misfeasance – Unlawful use of power; wrongful performance of a normally legal act; injurious exercise of lawful
authority; official misconduct; breach of law.
The word ‘misfeasance’ would apply to a case where a lawful act is done in an improper manner.

Nonfeasance - Non performance of some act which ought to be performed, omission to perform a required duty at
all, or total neglect of duty.

Nonfeasance would apply to a case where a person omits to do some act prescribed by law.

Distinction between ‘Misfeasance’, ‘nonfeasance’ and ‘malfeasance’ – Misfeasance is the improper doing of an act
which a person may wilfully do. Nonfeasance means the omission of an act which a person ought to do.
Malfeasance is the doing of an act which a person ought not to do at all.

Remedies

Remedies are of two types- (i) judicial and (ii) extra-judicial.

Judicial remedy is of three types:

(i) Damages, (ii) Injunction and (iii) Restitution of property

Types of damages -

a) Exemplary or Vindictive damages – are damages on an increased scale, awarded to the plaintiff over and
above what will barely compensate him for his property loss, where the wrong done to him was aggravated by
circumstances of violence, oppression, malice etc.

b) Ordinary or Real damages – are compensation for general damage. General damages are those which the law
implies in every breach of contract and in every violation of a legal right.

c) Nominal damages – They are awarded for the vindication of a right where no real loss or injury can be proved.

d) Contemptuous damages -

Injunction- A judicial process operating in personam, and requiring a person to whom it is directed to do or refrain
from doing a particular thing. Law as to the injunction is contained in the Specific Relief Act 1963 and the CPC
1908. Types of injunction –

(i) Mandatory – When, to prevent the breach of an obligation, it is necessary to compel the performance of certain
acts, the Court may in its discretion grant an injunction to prevent the breach (s. 55 of the Specific Relief Act,
1877).

(ii) Permanent or perpetual – By perpetual injunction a defendant is perpetually enjoined from the assertion of a
right, or from the commission of an act, which would be contrary to the rights of the plaintiff (s. 53, the Specific
Relief Act, 1877).

(iii) Temporary – Temporary injunction is such as is to continue until a specified time, or until the further order of
the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877; CPC Order XXXIX Rule 1.

(iv) Ad-interim -

Restitution of property – Restitution means restoration of anything to its rightful owner.


Extra-judicial remedies are-

i) Self defence – The use of force to protect oneself, one’s family, or one’s property from a real or threatened
attack.

ii) Expulsion of trespassers – Forcibly evicting the trespasser.

iii) Reception of chattels – Chattel means movable or transferable property; personal property.

iv) Re-entry of land –

v) Abatement of nuisance – Abatement is the act of eliminating or nullifying; the act of lessening or moderating.

vi) Distress damage feasant – the right to seize animals or inanimate chattels that are damaging or encumbering
land and to keep them as security until the owner pays compensation.

Who may sue and who may be sued

Every person can sue in case of tort including the minor with the consent of his guardian or the court.

The following persons cannot sue-

i) Citizen of foreign state – If a citizen of foreign country wants to file a suit against a Bangladeshi or a other
citizen of foreign country, he has to file an application to the Home Ministry through the Law Ministry (s. 83 of
CPC)

ii) Alien enemy – Every person residing in a foreign country the Government of which is at war with, or engaged
in military operations against Bangladesh and carrying on business without a license will be regarded as an
alien enemy.

Alien enemies residing in Bangladesh with the permission of the Government, and alien friends may sue. No
alien enemy residing in Bangladesh without such permission or residing in a foreign country shall sue (s. 83 of
CPC)

iii) Foreign state – A foreign state cannot sue unless it is recognized by the Government.

vi) Bankrupt – The guiding law in this regard is the Bankruptcy Act, 1997. If a person is declared insolvent, his
properties are taken over and a ‘receiver’ is appointed as the supervisor of that property. A bankrupt cannot sue
as long as civil wrongs are concerned.

v) Felons/Convicts – Felon is a person who has been proven guilty and declared with punishment but fled away.
Convict is a person who has been proven guilty but has not fled away.

A felon cannot file a suit. But a convict can file a suit.

vi) Corporation – A corporation gets a legal entity when it is registered. No unregistered corporation can file a suit.

vii) Child in mother’s womb – This is called ‘pre-natal injuries’.

Walker v. G.N. Ry. Co. of Ireland – the plaintiff, a child, sued the railway company for damages on the ground
that he had been born crippled and deformed because the injury was caused to it (before birth) by an accident
due to railway’s negligence, when the plaintiff’s pregnant mother travelled on the defendant’s railway. It was
held that the defendants were not liable for two reasons. Firstly, the defendants did not owe any duty to the
plaintiff as they did not know about his existence; secondly, the medical evidence to prove the plaintiff’s claim
was very uncertain.

Montreal Tramways v. Leveille – The Supreme Court of Canada allowed an action by a child born with club
feet two months after an injury to its mother by the negligence of the defendants.

Majority of the writers are in favour of the view that an action for pre-natal injuries should also be recognized,
once that the act of the defendant is considered to be tortious.

Who may not be sued -

i) President/head of the state – According to Article 51(1) and 51(2) of the Constitution, no civil or criminal suit
can be filed against the President as long he is holding the post of the President.

ii) Foreign sovereign – No suit can be filed against a foreign sovereign unless a consent to the same is obtained
from that sovereign (s. 86 & 87).

iii) Ambassador / High Commissioners – High Commission is an embassy from one commonwealth country to
another.

iv) Public servants – The list of the public servants are given in s. 21, 13 & 14 of the Penal Code, 1860. Also who
are appointed through PSC are to be regarded as public servants.

An application for consent from the Government is required before filing a suit against them.

v) Corporation – Unless it is a registered corporation, a suit cannot be filed against it.

vi) Infant / Minor – According to the Penal Code, a minor is a child of 9 – 12 years. But age of the minor varies in
various Statues.

vii) Unsound mind – There are various Act for lunatics and unsound minds, e.g. the Lunacy Act, 1912.

Negligence

Essentials of negligence-

i) The defendant owes a duty of care to the plaintiff;

ii) The defendant made a breach of that duty; and

iii) The plaintiff suffered damage as a consequence thereof.

i) The defendant owes a duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such
duty. It depends in each case whether a duty exists.

Donoghue v. Stevenson – A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that
and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation.
The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of Lords held that the
manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be
liable on the breach of the duty.

Palsgraaf v. Long Island Railroad Co. – The plaintiff with a package was trying to board a moving train. Two
servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell
on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the
defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo CJ said,
the conduct of the defendant’s servant was not wrong. Relatively to her it was not negligence at all.

Duty depends on reasonable foreseeability of injury

If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent
that injury and failure to do that makes him liable.

No liability when injury is not foreseeable

Glasgow Corp. v. Muir – The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two
members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets
and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It
was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn
being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such
an event.

Reasonable foreseeability does not mean remote possibility

Bolton v. Stone – A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway.
This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on
about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for
negligence. But the House of Lords held that the defendants were not liable on the basis of negligence.

Duty of care – Booker v. Wenborn (1962) - The defendant boarded a train which had just started moving but kept
the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The
plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the
defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on
the platform.

ii) Breach of duty – Breach of duty means non-observance of due care which is required in a particular situation.
The law requires taking of two points into consideration to determine the standard of care required: (a) the
importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which
services, etc. are offered.

(a) The importance of the object to be attained –

K. Nagireddi v. Government of Andhra Pradesh – Due to construction of a canal by the state government, all the
trees of the plaintiff’s orchard died. The plaintiff alleged that the government due to negligence did not cement the
floor. It was held that the construction of canal was of great importance and to not cementing the floor was not
negligence from the state government.

(b) The magnitude of risk –

Kerala State Electricity Board v. Suresh Kumar – A minor boy came in contact with overhead electric wire which
had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board
had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its
statutory duty.

(c) The amount of consideration for which services, etc. are offered –

Klaus Mittelbachert v. East India Hotels Ltd. – the question of liability of a five star hotel arose to a visitor, who
got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between
a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star
hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and
services it offers and makes available.

iii) The plaintiff suffered damage – It is also necessary that the defendant’s breach of duty must cause damage to
the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the
defendant’s negligence.

Res ipsa loquitur- It means ‘the things itself speaks’. 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 raises a presumption of
negligence on the part of the defendant.

Hambrook v. Stokes Bors. – Soon after parted with her children in a narrow street, a lady saw a lorry violently
running down the narrow street. When told by some bystander that a child answering the description of one of her
children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable.

Dickson v. Reuter –

Contributory negligence

When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct
of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant
has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to
harm.

Rural Transport Service v. Bezlum Bibi (1980) – The conductor of an overcrowded bus invited passengers to travel
on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart.
As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both the
driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part
of the passengers including the deceased, who took the risk of travelling on the roof of the bus.

Yoginder Paul Chowdhury v. Durgadas (1972) – The Delhi High Court has held that a pedestrian who tries to cross
a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence.

Doctrine of alternative danger –

There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous
situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by
the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered
any damage, he will be entitled to recover from the defendant.

Jones v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently
that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be
entitled to recover.
Shayam Sunder v. State of Rajasthan (1974) – Due to the negligence on the part of the defendants, a truck
belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck
against a stone lying by the roadside and died. The defendants were held liable.

Defamation

Defamation is injury to the reputation of a person. If a person injures the reputation of another, he does so
at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and
if possible, more valuable, than other property (Dixon v. Holden, 1869).

s. 499 of the Penal Code- Whoever by words either spoken or by visible representations, makes or
publishes any imputation concerning any person intending to harm the reputation of him, except in the
cases hereinafter excepted, to defame that person.

Ten exceptions-

1. Imputation of truth which public good requires to be made or published-


2. Public conduct of public servants-
3. Conduct of any person touching any public question-
4. Publication of reports of proceedings of Courts-
5. Merits of case decided in Court or conduct of witnesses and others concerned-
6. Merits of public performance-
7. Censure passed in good faith by person having lawful authority over another-
8. Accusation preferred in good faith to authorized person-
9. Importation made in good faith by person for protection of his or other’s interests-
10. Caution intended for good of person to whom conveyed or for public good-

s. 500- Punishment for defamation- two years or fine or both.

s. 501- Printing or engraving matter known to be defamatory-Whoever prints or engraves any matter,
knowing that to be defamatory of any person, shall be punished with two years or fine or both.

s. 502- Sale of printed or engraved substance containing defamatory matter- Whoever sells or offers
for sale any printed substance containing defamatory matter knowingly, shall be punished with two years
or fine or both.

Classification of defamation

Defamation is of two types- libel and slander. Distinction between the two is-

Libel Slander

It is written It is oral

It is permanent It is temporary
It is both tort and offence It is only tort

It is actionable per se It is not actionable per se

Intention is easier to prove Intention is not that easy to prove.

Essential elements of defamation-


i) The statement must be defamatory
ii) The said statement must refer to the plaintiff
iii) The statement must be published
iv) The statement must be passed by the defendant

Explanation-
i) The statement must be defamatory-

Defamatory statement is one which tends to injure the reputation of the plaintiff. Whether a statement is
defamatory or not depends upon how the right thinking members of the society are likely to take it.

D.P. Choudhury v. Manjulata (1997)- There was publication of a statement in a local daily in Jodhpur
that Manjulata went out of her house on the earlier night at 11 p.m. on the pretext of attending night
classes and ran away with a boy named Kamlesh. She belonged to a well educated family and was
herself also a student of B.A class. She was 17 years of age. The news item was untrue and had been
published with utter irresponsibility and without any justification. Such publication had resulted in her
being ridiculed and affected her marriage prospects. The statement being defamatory, the defendants
were held liable.

The Innuendo

A 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 the secondary meaning, i.e.
innuendo.

Intention to defame is not necessary- When the words are considered to be defamatory by the persons
to whom the statement is published, it is immaterial that the defendants did not know of the facts, is
considered to be defamatory.

Cassidy v. Daily Mirror Newspapers Ltd.- Mr. Cassidy was married to a lady who called herself Mrs.
Cassidy. The defendants published in their newspapers a photograph of Mr. Cassidy and Miss ‘X’ with
the following words underneath: ‘Mr. M. Cassidy, the race horse owner, and Miss ‘X’, whose engagement
has been announced’. Mrs. Cassidy sued the defendants for libel alleging that the innuendo was that Mr.
Cassidy was not her husband and he lived with her in immoral cohabitation. The Court of Appeal held that
the innuendo was established.

ii) The statement must refer to the plaintiff-


In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to
him. It is immaterial that the defendant did not intend to defame the plaintiff.

Newstead v. London Express Newspapers Ltd.- the defendants published an article stating that
‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The story was true of Harold
Newstead, a Camberwell barman. The action for defamation was brought by another Harold Newstead, a
Camberwell barber. As the words were considered to be understood as referring to the plaintiff, the
defendants were held liable.

iii) the statement must be published-

Publication means making the defamatory matter known to some person other than the person defamed,
and unless that is done, no action for defamation lies.

Mahendra Ram v. Harnandan Prasad- the defendant sent a defamatory letter written in Urdu to the
plaintiff. The plaintiff did not know Urdu and therefore the was read over to him by third person. It was
held that the defendant was not liable unless it was proved that at the time of writing the letter in Urdu
script, the defendant knew that the Urdu script was not known to the plaintiff and would necessitate
reading of the letter by a third person.

iv) the statement must be passed by the defendant

Defences:

The defences to an action for defamation are-

1. Justification of truth
2. Fair comment
3. Privilege which may be either absolute or qualified.
1. Justification of truth-

In a civil action for defamation, truth of the defamatory matter is complete defence. Under the Penal
Code, merely proving that the statement was true is no defence. Section 499 requires that besides being
true, the imputation must be shown to have been made for public good.

2. Fair comment-

For this defence it is required:

a) It must be a comment i.e. an expression of opinion


b) the comment must be fair
c) the matter commented upon must be of public interest.
3. Privilege is of two types: (a) Absolute privilege and (b) Qualified privilege

(a) Absolute privilege-

i) Parliamentary proceedings- Art. 78(3) of the Constitution states, a member of Parliament shall not be
liable in any Court in respect of anything said, or any vote given, by him in Parliament or in any committee
thereof.
ii) Judicial proceedings-
iii) State communications-
(b) Qualified privilege- in certain cases, the defence of qualified privilege is also available. To avail this
defence, the defendant has to prove the following two points:

i) the statement was made on a privileged occasion, i.e. it was in discharge of duty or protection of an
interest
ii) the statement was made without any malice.

Trespass

Trespass is of two types: (i) Trespass to body, ii) Trespass to land


Trespass to land or property

Trespass to land means interference with the possession of land without lawful justification. In trespass,
the interference with the possession is direct and through some tangible object.

Trespass is a wrong against possession rather than ownership. Therefore, a person in actual possession
can bring an action even though, against the true owner, his possession was wrongful.

Remedies: both judicial and extra judicial. Extra judicial remediesare:

i) Re-entry
ii) Action for ejectment
iii) Action for mesne profit
iv) Distress damage pheasant- to seize trespassing cattle until compensation has been paid.
Judicial remedies are mentioned in s. 297 and 441-462 of the Penal Code, 1860:

Liability

Liability is of two types: (i) Absolute or strict, and (ii) Vicarious.


(i) Absolute or strict liability- Sometimes a person may be liable for some harm even though he is not
negligent in causing the same, or there is no intention to cause the harm, or sometimes he may even
have made some positive efforts to avert the same.

In Rylands v. Fletcher, 1868, the House of Lords laid down the rule recognizing ‘no fault’ liability. The
liability recognized was ‘strict liability’, i.e. even if the defendant was not negligent or rather, even if the
defendant did not intentionally cause the harm or he was careful, he could still be made liable under the
rule.

Facts of the case- the defendants got a reservoir constructed, through independent contractors, over his
land for providing water to his mill. There were old disused shafts under the site of the reservoir, which
the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it
burst through the shafts and flooded the plaintiff’s coal-mines on the adjoining land. The defendant did not
know of the shafts and had not been negligent although the independent contractors had been. Even
though the defendant had not been negligent, he was held liable.

(ii) Vicarious liability- In certain cases, a person is held liable for the act of another person. The common
example of such liability are-

a) Liability of the principal for the tort of his agent


b) Liability of partners of each other’s tort
c) Liability of the master for the tort of his servant
a) Principal and agent- Where one person authorizes another to commit a tort, the liability for that will be
not only of that person who has committed it but also of that who authorized it. It is based on the general
principle ‘Qui facit per alium facit per se’ which means that the act of an agent is the act of the principal.
For any act authorized by the principal and done by the agent both of them are liable.

Lloyd v. Grace, Smith & Co. – Mrs. Lloyd, who owned two cottages but was not satisfied with the
income therefrom, approached the office of Grace, Smith & Co., a firm of solicitors, to consult them about
the matter of her property. The managing clerk of the company attended her and advised her to sell the
two cottages and invest the money in a better way. She was asked to sign two documents, which were
supposed to be sale deeds. In fact, the documents got signed were gift deeds in the name of the
managing clerk himself. He had acted solely for his personal benefit and without the knowledge of his
principal. It was held that since the agent was acting in the course of his authority, the principal was liable
for the fraud.

b) Partners- The relationship as between partners is that of principal and agent. The rules of the law of
agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of
the business of the firm, all other partners are liable to the same extent as the guilty partner.

Hamlyn v. Houston & Co.- One of the two partners of the defendant’s firm, acting within the general
scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a breach of
contract with his employer (plaintiff) by divulging secrets of the firm were liable for this wrongful act
committed by only one of them.

c) Master and servant- A servant is a person employed by another to do work under the directions and
control of his master. If a servant does a wrongful act in the course of his employment, the master is liable
for it. The servant, of course, is also liable. The doctrine of liability of the master for act of his servant is
based on the maxim ‘respondeat superior’, which means ‘let the principal be liable’.

For the liability of the master to arise, the following two essentials are to be present:

i) the tort was committed by the ‘servant’;


ii) the servant committed the tort in the ‘course of his employment’.

Nuisance

Nuisance is a tort means an unlawful interference with a person’s use or enjoyment of land, or some right
over, or in connection with it. The interference may be any way, e.g. noise, vibration, heat, smoke, smell,
fumes, water, gas, electricity or disease producing germs.
Nuisance is distinguished from trespass-

Trespass Nuisance

Interference is direct. Interference is consequential.

It is interference with a person’s possession of land. It is interference with a person’s use of land.

The interference is always through some material or Nuisance can be committed through the medium of
tangible objects. intangible objects.

Trespass is actionable per se. Special damage has to be proved in order to obtain
remedy.

Nuisance is of two types:

(i) Public or common nuisance (ii) Private nuisance, or tort of nuisance

i) Public Nuisance

Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is interference with
the right of public in general and is punishable as an offence. For example, obstructing a public way by
digging a trench. Such obstruction may cause inconvenience to many persons but none can be allowed
to bring a civil action for that.

ii) Private nuisance


To constitute the tort of nuisance, the following essentials are required to be proved:
a) unreasonable interference
b) Interference is with the use of enjoyment of land
c) Damage
a) unreasonable interference- Interference may cause damage to the plaintiff’s property or may
cause personal discomfort to the plaintiff in the enjoyment of property. Every interference is not a
nuisance. To constitute nuisance, the interference should be unreasonable. Ushaben v. Bhagya
Laxmi Chitra Mandir.

b) Interference with the use or enjoyment of land- Interference may cause either: (i) injury to the
property itself, or (2) injury to comfort or health of occupants of certain property.

c) Damage- Unlike trespass, which is actionable per se, actual damage is required to be proved in an
action for nuisance.

Fay v. Prentice- a cornice of the defendant’s house projected over the plaintiff’s garden. It was held
that the mere fact that the cornice projected over the plaintiff’s garden raises a presumption of fall of
rain water into and damage to the garden and the same need not be proved. It was a nuisance. In
private nuisance, although damage is one of the essentials, the law often presume it.
Difference between public nuisance and private nuisance-

Public nuisance Private nuisance

It is a crime. It is a civil wrong

It is interference with the right of public in general. It is interference with the right of an individual or few
persons

None is allowed to bring a civil action against it. The person whose right is interfered with can bring a
civil action against it.

Defence

i. Prescriptive right to commit nuisance- A right to do an act, which would otherwise be a nuisance,
may be acquired by prescription. If a person has continued with an activity on the land of another person
for 12 years or more, he acquires a legal right by prescription, to continue therewith in future also. This
right is called easement right.

ii. Statutory authority- An act done under the authority of a statute is a complete defence. Thus, a
railway company authorized to run railway trains on a track is not liable if, in spite of due care, the sparks
from the engine set fire to the adjoining property, or the value of the adjoining property is depreciated by
the noise, vibrations and smoke by the running of trains.

Assault .

Answer :-
An assault is the attempt to do hurt to another’s person together with the present ability and intention to do
the act . There should be a reasonable apprehension of using of force . Mere oral threat or gesture without the
present ability or immediate intention to carry it out is not an assault. Or mere laying of hands on another is
also not assault . Essence of assault is putting a person in present fear of violence with ability and intention of
the wrong doer.
The wrong of assault may be explained by an example .
A can sue B , for assault , if B points a gun to A threateningly , though B knows that the gun is not loaded and
A apprehends that it is loaded .

The following are the three main ingredients of assault .


i) There must be gesture or preparation to constitute a threat of force .
ii) The gesture or preparation must cause a reasonable apprehension of force .
iii) The offender must have present ability to carry out the threat into action .
In the leading case of Stephens Vs. Myers , the plaintiff was chairman of a meeting of a local Church –
committee . The defendant having been very vociferous , a resolution was passed , and carried by a large
majority , that he should be turned out . Upon this , the defendant said he would rather pull the chairman out
of the chair than be turned out of the room , and immediately advanced with his fist clenched towards the
chairman with an intention to strike him . Justice Tindal observed that it was an assault in the eye of law .

Battery .
Answer :-
A Battery is the application of force , to the person of another , intentionally , without lawful justification
,in however slightest manner the force may be applied .It is striking of another’s person hostilely , or against
his will , in angry , rude , revengeful and insolvent manner .

As for examples , kissing a girl , removing one’s hat from his head , cutting of one’s hair without her consent
sitting on the next bench in college , spitting on one’s face , snatching of a paper from one’s hand are all the
wrongs of battery .Similarly , firing a gun carelessly and injuring another is also the wrong of battery .

Following are the essential ingredients of battery :-


i) There must be use of force by the wrongdoer to the victim’s body either directly or through any object .
ii) The force must be used intentionally .

In the famous case of Hurst Vs. Picture Theatre Ltd. , the plaintiff purchased a ticket for a seat at a cinema
show . However , he was forcibly turned out of his seat under the directions of the theatre manager who was
under the mistaken belief that the plaintiff had not paid for the seat . The Court held that the plaintiff was
entitled to damages .

But touching a man to draw his attention or in a crowd , jostling one another, is not battery .

Malfeasance , Misfeasance and Non- feasance .


Answer :-
Malfeasance:-
When an unlawful act is committed , it is called Malfeasance . The unlawful acts of Malfeasance are those
which are generally actionable per se and do not require proof of damage or negligence or malice .
As for instance trespass is malfeasance and it is actionable per se .
Misfeasance:-
When the act itself is lawful but performed improperly , it is called Misfeasance .A person becomes liable in
tort even if he has undertaken to do something gratuitously and performs the work improperly or commits
a misfeasance .
Non- feasance:-

Failure or omission to perform an obligatory act by one is Non- feasance. But in case of Non- feasance , a
gratuitous undertaking does not impose liability . Where there is an obligatory duty , and the failure or
omission to do such duty causes injury to a person , it gives rise to a cause of action in favour of such person
towards whom the duty exists .

Damage and Damages .

Answer :-
The terms ‘ damage ‘ and ‘ damages ‘ are not synonymous in meaning . The term ‘damages ‘ is not also
plural form of the term ‘ damage’ . The real meaning of the term ‘ damage ‘ differs from the term ‘ damages
‘. Distinction between the two terms are shown in the following tabular form .
Damage Damages.
1. The term damage means injury caused On the other hand , damages means the compensation
by any wrongful act . awarded by the Court for the injury caused by the
wrongful act.
2. Injury means injury to any legal right But the term damages means the sum claimed for
such as loss of money , health , property injury to the legal right in order to compensate the
, comfort , mental peace or the like . loss .
3. The word damage tends to say While damages means pecuniary compensation
infringement of a legal right by the awarded by the Court to the plaintiff for damage
defendant to the plaintiff. caused by the defendant .

Tort and Crime .


Answer :-
Though the tort and crime , apparently , seem to be resemble to each other , there are differences in between
the two . The same facts may give rise to liability in both tort as well as crime , but the two differ in respect of
principle and procedure and in such circumstances both are violations of rights in rem .

The main points of distinction , between the two , are shown in the following tabular form .
Tort. Crime.
1. Nature of the act. Nature of the act.
Tort is an infringement of civil right of an But crime is an offence not only against an
individual . It is a wrong against an individual individual but also against the society as a whole. It
. It violates the right in personam . violates the right in rem.
2. Parties. Parties.
A suit is brought by the individual whose legal On the other hand , since interest of the society is
right is violated . violated , the criminal is prosecuted by the State at
the instance of a private individual .State is always
a party to a criminal proceeding .
3. Court. Court.
For a tortious act a suit for damages is filed in For crime prosecution is launched in a criminal
a civil Court . Court .
4. Object. Object.
Object of the law of torts is to compensate the On the other hand , object of the law of crimes is to
person whose legal right has been infringed by punish the criminal fro the interest of society.
the wrongdoer.
5. Remedy. Remedy.
Remedy against a tort is a suit for damages In case of crime , the remedy is prosecution with an
claiming for compensation . Sometimes the eye to punish the criminal .
remedy may be for a declaration and
injunction .

Some torts are civil wrongs as well as crimes , they violate the individual rights as well as interest of the
society . As for instance , assault , battery and libel violate not only the rights of individual but also the
interest of society in maintaining peace and order therein .In such cases both the right in rem and right in
personam co-exist with each other . In these cases , the wrongdoer is liable to be sued in civil Court as well as
prosecuted in criminal Court , at the same time .

Distinguish Malfeasance , Misfeasance and Non- feasance.

Answer :-
The following are the differences amongst the Malfeasance , Misfeasance and Non- feasance , shown in the
tabular form .
Malfeasance. Misfeasance. Non- feasance.
1. Malfeasance is the commission But Misfeasance is the improper On the other hand , Non-
of an unlawful act . performance of lawful act . feasance is the failure or
omission to perform an
obligatory act .
2. In case of Malfeasance , In case of Misfeasance , if the But in case of Non-feasance , it
negligence , malice or damage defendant performs even the is the obligatory duty of the
need not be proved . Because gratuitous person and fails or omits to
Malfeasance is actionable per undertaking improperly , he perform the duty and causes
se . becomes liable in tort . injury to the plaintiff thereby .

Servant and an Independent contractor.


Answer :-
The essential distinction between a servant and an independent contractor may be shown by the following
tabular form .
Servant . Independent contractor .
1. A servant works under the supervision An independent contractor does not work under
and direction of his master as his agent . supervision and direction of any one , he is master
of his own .
2. A servant is supposed to comply his But an independent contractor is to exercise his
master’s direction because he is employed own discretions as to the manner to complete the
by him . work.
3. A servant is always bound to comply the On the other hand , an independent contractor is
orders of his master . bound by the terms and conditions of his contract .

The points of distinctions mainly lie in the existence of the right to control .

Assault and battery.

Answer :-

Winfield has given an interesting example , distinguishing assault and battery , which is popularly accepted
by all . According to Winfield , when a person is going to sit on a chair , just at that moment if the chair is
pulled away , the wrongful act of pulling away the chair is assault . The moment he falls on the floor and gets
hurt , it is battery . Likewise , to throw hot water at a person is assault . But the moment , the hot water falls
on the person , it is battery .
It has been observed by an eminent writer that assault and battery are like ham and eggs . But there are
subtle points of distinctions between assault and battery .
The points of distinctions may be shown in the following tabular form .

Assault. Battery.
1. Assault is an action which puts the victim in Application of unlawful force to another’s person
instant fear of unlawful force though no is battery.
force may actually be applied .
2. Assault includes mere fear of physical In battery physical contact as a result of the
violence without any physical contact . violence is must .
3. Assault may not be ended in battery . As for But every battery includes assault.
example , if X lifts up his stick aiming at y , As for example , if X lifts up his stick aiming at y ,
that is battery . and beats him , the beating is battery .
4. Where the wrongful act shows that there is But when the apprehension of violence takes the
reasonable apprehension of immediate effect by touching the victims person , that is
violence , the act is assault . battery .

Q :- Distinguish between Libel and Slander .

Answer :-
A libel is the publication of a false and defamatory statement , in permanent form , tending to injure the
reputation of another person , without lawful justification or excuse .
Where as a slander is the false and defamatory oral or verbal statement , in some transitory form , tending
to injure the reputation of another person , without lawful justification or excuse .

The points of distinctions between Libel and Slander can be shown in the tabular form as follows .
Libel Slander
1. Written. Spoken.
Libel is addressed to the eye . It is written On the other hand , slander is addressed to the
form of defamation. ear . It is a spoken form of defamation .
2. Permanent. Transient.
Libel is a kind of defamation which is in a Slander is a kind of defamation which is in a
permanent form , as for examples , a statue , transient form whether by spoken words or by
effigy , caricature or phonographic record or significant gestures .
the like .
3. Whether actionable per se. Whether actionable per se.
Libel is actionable per se .Without proving But Slander is not actionable per se except in five
special damage an action against Libel is cases as excepted .
maintainable .
4. Malice. Malice.
Libel suggests the presence of malice as it Slander does not suggest the presence of malice as
requires a greaterdeliberation . it is uttered in the heat of moment and under a
sudden provocation .

5. Publisher. Publisher.
The actual publisher of the libel may be On the otherhand , in case of slander , the
innocent regarding the libelous matter and he publisher acts consciously and voluntarily , and so
may not be liable for that . he may not be innocent but he is the guilty .
6. Tort / Crime. Tort/ Crime.
In England , Libel is both a civil wrong and a On the other hand , in England , slander is a civil
criminal offence . wrong only and not a crime .
In India Slander is both a civil wrong and a
criminal offence .
7. Limitation. Limitation.
Under the English Statutes of limitation , an Under the English Statutes of limitation , an
action of libel is barred after six years . action of slander is barred after two years .
In India , the period of limitation is one year . In India , the period of limitation is one year .

Justification and Fair Comment.


Answer :-
Defamation is categorized as felonious tort meaning thereby it is civil wrong as well as crime . One can take
both the two actions at a time . Justification and fair or bonafide comment are both good defences against an
action of defamation . But there is difference in between justification and fair or bonafide comment .

The difference may be shown in the following tabular form .

Justification. Fair Comment.


1. When the defendant takes a plea in an action On the other hand , fair comment is a statement of
for defamation that the words published are opinion on the matters concerning public interest . Fair
true , it is said justification . comment must not exceed the limits and must not be
published maliciously .
2. Justification is concerning the facts and While fair and bonafide comment being a statement of
substance and not merely based on the belief opinion must be honest . If the facts are misstated , the
of defendant. defence of fair comment is of no avail.
3. The defendant escapes the liability of On the other hand , fair comment is used as a defence ,
defamation if the words are true whatever if commented on public interest . Legitimate criticism is
improper his motives may be . The not a tort .
defendant relies upon the truth of his
assertion denying a claim of reputation
which the plaintiff does not or ought not to
possess.

Absolute privilege and qualified privilege .

Answer :-

Privilege , whether absolute or qualified , is a good defence against an action for defamation . The points of
distinction between the absolute privilege and qualified privilege may be shown in the following tabular form
.
Absolute privilege. Qualified privilege.
1. Express Malice. Express Malice.
Absolute privilege is of such a nature that On the other hand , qualified privilege is rebuttable
no action will lie for it , however false and by the plaintiff by showing that the defendant acted
defamatory it may be . Presence of express with malice . It is open to the plaintiff to negative the
malice can not affect the absolute privilege privilege . As for examples , statements made by the
. As for examples , statements made by the persons about their former servants to the intending
Judges , Advocates or witnesses in a court employers or about a crime to the police.
of law .
2. Occasion. Occasion.
In the event of absolute privilege , the But in the event of qualified privilege ,the occasion
occasion itself is privileged . Once the itself is not privileged .Interest or duty is to be shown
occasion is shown , every communication to exist for making the communication .
with respect to that occasion is privileged .
3. Enquiry. Enquiry.
In absolute privilege communications are Qualified privilege is subject to enquiry to determine
not subject to enquiry as to whether good the liability or malice .
faith or bad faith are present or not .
4. Irrebuttable. Rebuttable.
Absolute privilege is irrebuttable . Qualified privilege can be rebutted by proof of
express malice by the defendant .

False imprisonment and Malicious prosecution .


Answer :-
The difference between false imprisonment and malicious prosecution may be shown in the tabular form as
follows:

False imprisonment. Malicious prosecution.


1. In the case of false imprisonment there is an But in the case of malicious prosecution there is the
important element of total restraint element of causing damage by means of an abuse of
of personal liberty without lawful the process of Court.
justification.
2. By a private individual’s legal action With the help of judicial sanction the arrest of
individual liberty of the plaintiff is wrongly plaintiff is obtained.
restrained.
3. The onus of pleading and proving But in the event of an action of malicious
affirmatively the existence of reasonable and prosecution the plaintiff is to allege and prove
probable cause as justification lies on the affirmatively it’s non-existence.
defendant in the case of false imprisonment.
4. In an action for false imprisonment, it is not so In malicious prosecution the plaintiff is to prove
required. that the defendant acted with malice.

5. Damage is not the essence of false In an action for malicious prosecution damage is
imprisonment. said to be the essence of it.

Malice-in-fact and Malice –in-law .


Answer :-
Distinction in the between Malice-in-fact and Malice –in-law may be shown in the following tabular form:
Malice-in-fact Malice-in-law
1. When an act is done with ill- will motive towards But when an act is done wrongfully and
an individual then it is called Malice –in –fact or express without reasonable and probable cause , it is
malice . called Malice-in-law or implied malice.
In malice-in-law, the act done must be
wrongful or legal right must be violated.

2. In Malice-in-fact there must be ill-will or any vindictive While in Malice-in-law there must be
motive of the defendant against the plaintiff. Concurrence of mind with a wrongful act
done by the defendant without just cause or
excuse.

3. Motive is the main ingredient upon which Malice-in-fact On the other hand , Knowledge is the main
is based . ingredient upon which Malice-in – law is
based .

Public nuisance and Private nuisance .


Answer :-
Blackstone defined a nuisance as something that “ worketh hurt , inconvenience or damages .” The term
nuisance has been derived from the French word ‘nuire’ and the Latin word ‘nocere’ which mean ‘ to do
hurt or to annoy ‘. Nuisance has been defined to be anything done to the hurt or annoyance of the lands ,
tenements or hereditament of another and which is not a trespass .

Nuisances are of two types ---


i) Public Nuisance and
ii) Private Nuisance .
The distinction between public nuisance and private nuisance may be expressed better in the following
tabular form .
Public Nuisance. Private Nuisance .
1. With respect to the public nuisance , if the But in case of private nuisance , an action for damages is
plaintiff does not sustain special damage , maintainable .
an action for damages is not maintainable
.
2. In case of public nuisance , an action lies But in case of private nuisance , an action for damages
for declaration with a prayer for lies .
injunction .
3. One person individually can not sue in his Private nuisance is actionable only by an individual .
own name for a public nuisance .
4. Public nuisance can not be legalized by But a right to create or continue a private nuisance can
any length of time . by acquired by way of prescription .
5. Public nuisance affects the right , safety or On the other hand , private nuisance affects right of an
convenience of the public at large or a individual or a determinate body of persons .
considerable portion of the public .
6. A public nuisance can not be abated by On the other hand , a private nuisance can be so abated .
any person affected thereby.

Nuisance and Trespass .


Answer :-
Trespass and Nuisance are two different matters being mutually exclusive from one another .
But there is similarity only on one point , that is when the injury relates to possession as well as to some
right accessory to possession ,e.g., trespass of cattle , discharge of noxious matter into a stream and ultimately
on another’s land .
However , the distinction between trespass and nuisance may be shown in the following tabular form .
Trespass . Nuisance.
1. Trespass is actionable per se . Actual But nuisance is actionable only on proof of special
damage need not be proved . damage except in the case of nuisance consisting of
injuries to servitudes .
2. Trespass is an injury to the right of But nuisance relates to some right accessory to
possession . possession .

Damnum sine injuria .

Answer :-
The maxim ‘damnum sine injuria ‘ literally means that there is an act which caused damage but no legal
right is infringed . Such an act is not actionable in the law of Torts.

The word ‘ damnum ‘ means damage . This damage may be loss of health , loss of service , physical hurt and
loss of money or the like . The word ‘ injuria’ means a legal injury or tortuous act or an infringement of legal
right . And the word ‘sine ‘means without . So the maxim means that a damage without infringement of any
legal right . Where there is no infringement of legal right , whatever loss one may sustain , no action lies
against that act which is not at all a wrongful . Therefore , ‘ damnum sine injuria ‘ does not afford any right
to sue for legal remedy including claim of compensation and etc.

In order to make a person liable in law , the plaintiff must prove that he sustained legal injury . Damage
without injury is not actionable . There are many acts which are , though harmful , are not wrongful , in the
eye of law , and therefore , do not give rise to a right of action in favour of the person who sustains the
damage .

An example may be given with respect to this maxim .

In the famous case of Gloucester Grammar School , the defendant , a schoolmaster , set up a rival school next
to that of the plaintiff , with the result that the boys from the plaintiff’s school flocked to the defendant’s .
The plaintiff sued the defendant for the loss . It was held that no suit could lie , because bonafide competition
can afford no ground of action , whatever damage it may cause .

The general principle upon which the maxim is based is that if one exercises his common or ordinary rights ,
within reasonable limits , and without infringing other’s legal right , such exercise of rights does not give rise
to an action in tort in favour of that other person .

In another famous case of Day Vs. Browning , where the plaintiff’s house was called “ Ashford Lodge “ for
sixty years , and the adjoining house belonging to the defendant was called “ Ashford Villa “ for forty years .
The defendant then altered the name of his house and started to call it “ Ashford Lodge “ . The plaintiff
alleged that this act of defendant had caused him great inconvenience and annoyance , and had materially
diminished the value of property . It was held that the defendant was not liable , as he had not violated any
legal right of the plaintiff .

The Privy Council pointed out in the case of Roger Vs. Rajendra Dutta, that it is essential to an action in tort
that the act complained of , should under the circumstances , be legally wrongful as regards the party
complaining . That is , it must prejudicially affect him in some legal right .

Injuria sine Damnum .


Answer :-

This maxim ‘ Injuria sine Damnum ‘ is just opposite to the maxim ‘ damnum sine injuria’ .

The word ‘ damnum ‘ means damage . This damage may be loss of health , loss of service , physical hurt and
loss of money or the like . The word ‘ injuria’ means a legal injury or tortuous act or an infringement of legal
right . And the word ‘sine ‘means without . So the maxim means that an infringement of any legal right
without damage. Where there is infringement of legal right , action lies against that act . Therefore ,if any
legal right is infringed , it is immaterial whether any loss is suatained or not , this maxim ‘injuria sine
damnum ‘affords right to sue for legal remedy .

According to this maxim whenever there is an invasion of a legal right , the person in whom the right is vested
, is entitled to bring an action though he has suffered no actual harm and may recover damages . It is
sufficient to show that there is violation of a legal right and the law will presume damage . On the strength of
this maxim the libel , assault , battery , false imprisonment and trespass on land or the mere wrongful acts
are actionable without proof of special damage .

In India , the same principles have been followed . It is not necessary to show any damage if the legal right is
infringed . Violation of a legal right gives rise to a legal action .

As for example , in an interesting American case of Morningstar Vs. Fafayette Hotel Company, the plaintiff ,
who was a guest at the defendant’s hotel , was fed up with the food served at the hotel , and so , he purchased
some spare ribs outside the hotel , and gave them to the hotel chef to be cooked and brought to his room .
This was done . But the spare ribs were accompanied by a bill for one dollar which the plaintiff refused to
pay . On the following morning , the plaintiff was publicly informed at the table of breakfast that he would
not be served . The plaintiff sued for wrongful refusal to serve breakfast to him and the Court held that his
legal right had been infringed .
In the famous leading case of Ashbay Vs. White , the defendant , a returning officer at a voting booth ,
wrongfully refused to register a duly tendered vote of the plaintiff , who was a qualified voter . The candidate
for whom the vote was sought to be tendered was elected. So no loss was suffered by the plaintiff for rejection
of his vote . The Court held that violation of the plaintiff’s right was an injury to him for which he must have
a remedy without proof of actual damage .

In another interesting case of Marzetti Vs. Williams , a Banker having sufficient funds in his hands belonging
to a customer refused to honour his cheque .The customer sustained no actual loss or damage . The Court
held that the customer’s legal right was infringed and was entitled to damages .

UBI JUS IBI REMEDIUM.


Answer :-
The word ‘Jus’ means the legal authority to do or demand something, and the word ‘remedium’ means the
right of action in a Court of law. Literal meaning of this maxim is that whenever there is a legal right, there is
a legal remedy . Sometimes it is expressed that there is no wrong without a remedy .

The principal upon which this maxim is based is that if a man has a right and if his right is injured , he
must, of necessity, have a mean to vindicate or a remedy. It is useless to think about a right without a
remedy . Because want of right and want of remedy are same thing . Both the right infringed and the
remedy sought should be legal.

The law of torts was developed to some extent on the basis of this maxim.

But he maxim does not say that there is legal remedy for every wrong.
Justice Stephen ( of England) remarked that the maxim would be more intelligibly and correctly stated if it
were to be reversed to say that where there is no legal remedy, there is no legal wrong.

There are many moral and political wrongs which are not recognized by law and are therefore not actionable.
A cruel war may raze houses to the ground, or oppressive legislation may reduce men to moral slavery, or a
contract required to be made on a stamped paper may be made orally in all these cases, irreparable harm
may be caused, and yet, a legal remedy may not be available.

Thus, the maxim does not mean that there is a legal remedy for every moral or political wrong.

EX TURPI CAUSA NON ORITUR ACTIO.


Answer :-
This maxim literally means that an action does not arise from an immoral cause.
According to the law of torts , the damage sustained by the plaintiff must be a legal damage or the injury
must be a legal injury . When the damage or injury is sustained in any immoral manner no cause of action
arises in favour of the plaintiff .

As for an example , if A is infected by B, her paramour, with a venereal disease, the existence of which was
concealed by B, A is not entitled to sue B, because an action does not arise from an immoral cause.

The famous leading case on this maxim is Hegarty V Shine .

It may be noted that the plaintiff is also a wrong –doer is no general defence because in that event absurd
consequence would follow . Winfield cited an example , to express this absurd consequence , that if A stole a
bottle of whisky from B , the latter would not be able to maintain an action, if it turned out that B had
purchased the bottle on a “dry” day .

One of the well established maxims of equity says that he who seeks equity must come with clean hands. This
does not mean that the plaintiff should be absolutely spotless . In the words of Sir Frederick Pollock, the
plaintiff will not be barred from suing unless “some unlawful act or conduct on his own part is connected
with the harm suffered by him as part of the same transaction.”

Qui facit per alium facit per se .


Answer :-
The maxim ‘ qui facit per alium facit per se ‘ means that he who does an act through another does it by
himself . This maxim is the origin of the principle of vicarious liability which says that the master or principal
is responsible for his servant’s or agent’s act . Or in other words the master or principal is held liable for his
servant’s or agent’s work . When a servant is entrusted by his master to do some kinds of works , on behalf
of or in absence of the master , the servant is left to determine everything arise according to the
circumstances . The servant is entrusted the manner in which the work is to be done . So the master is
answerable for the wrongs or omissions of his servant , so entrusted to do the act . According to this maxim ,
the master or principal is held liable either for the manner of doing such work by his servant or the work
ought not to have been done by his servant under such circumstances . But it is to be kept in mind that the
master is not held liable , if the servant does the act under sudden desire , during the course of his
employment , without being entrusted at all .

De minimis non curat lex .

Answer :-
The maxim de minimis non curat lex actually means that the law does not take any account of the trivial
matters .
The principle underlying the maxim is that nothing is a wrong which is trivial in nature and a person of
ordinary sense and temper would not complain . This maxim protects a trivial wrong though infringes legal
right of other . But the maxim does not protect a wrongdoer when the wrong is not trivial in nature and a
harm is caused or a legal right is infringed .
This principle is also recognized in section 95 of the Indian Penal Code .
An example will make it clear .
X is driving along a dusty road at a good speed , and the wheels of his motor car throw a little dust on the
clothes of Y , a pedestrian . Here X is not liable for tort , on the basis of the maxim de minimis non curat lex ,
as the matter is trivial in nature .
Another interesting example may make it more clear .
X walks on through the Y’s land , without Y’s permission , only for first time , without causing damage to the
land of Y . If for once , then it is trivial matter ,and the maxim would protect him , but if X repeats again and
again to establish his right of way upon the Y’s land then it does not remain a trivial matter and it becomes a
tort and the maxim would not then protect X .
In the leading case of Coward Vs. Baddeley , a by-stander touched a fireman on the arm to attract his
attention to another part of a building where a fire was raging . On a suit filed by the fireman for battery , the
Court held that the by-stander was not liable for battery on the basis of maxim de minimis non curat lex .

Q:- What is tort ? What are it’s characteristics ?

Answer :-
The definition of Tort is not exhaustive . Many eminent authors have defined ‘Tort ‘ but a real exhaustive
definition of a tort has yet to be found . ‘Tort ‘is a French word meaning wrong . The word ‘tort’ has actually
been derived from the Latin term ‘tortum ‘ which means ‘to twist ‘or ‘wrongful.’ Salmond defined tort as a
civil wrong for which the remedy is a common law action for unliquidated damages , and which is not
exclusively the breach of a contract or breach of a trust or other merely equitable obligations . The definition
given by Salmond has been adopted in different English cases as well as in section 2 of the Indian Limitation
Act which defined tort as a civil wrong which is not exclusively the breach of a trust .

The five important characteristics of a tort are as follows :-


1) Civil wrong .
A tort is a civil wrong unlike crime , breach of contract or breach of trust .

2) Infringement of a right in rem .


Tort is an infringement of right in rem and not right in personam . A right in rem is a right which is available
against the whole world . As for example , one’s right not to be assaulted or defamed is a right in rem .
3) Right fixed by law .
The right infringed in tort should not be a right based on consent of the parties but it should be a right fixed
by law .

4) Common Law action .


The remedy available in tort should be a Common Law action . The Common Law action is also actionable in
India .

5) Remedy .
Remedy of a tort should be damages or compensation in money . But the other remedies such as injunction ,
restitution of land , ejectment of trespasser are also available .

" There are many acts which though harmful , are not wrongful , and give no right of action to him who
suffers from their effect " - Discuss .
Answer :-
( Please see the maxim damnum sine injuria . )

Q :- " There are many forms of harm of which the law takes no account " ( Salmond ) ---- Discuss .
Answer :-
( Please see the answer on the maxim Damnum sine injuria ).

Q : - Discuss the pigeon hole theory .


Answer :-

Salmond opined that there is no law of tort but merely law of torts . This meant to say that the law of torts
consists of a number of specific rules prohibiting certain harmful acts . According to this school of thought
there is specific well defined wrongs or there is only a law of torts and no general law of tort . It is meant that
there is a list of acts and omissions , in certain circumstances which are actionable in a court of law . A person
is entitled to file a suit against only that harm which comes within one of these categories . As there are
specific crimes like theft , forgery , dacoity , murder and etc. , this theory says that likewise there are certain
specific torts and all the other wrongs fall outside of this purview .

The law if torts consists of a set of a neat of pigeon holes , each containing a specific labelled tort . When the
defendant’s wrong does not fit in any of these pigeon holes he is said to have committed no tort .This theory is
also known as pigeon hole theory . Sir Frederick Pollock strongly supported this theory of pigeon hole .

In the old English case of Allen Vs. Flood , appreciating this theory of pigeon hole , Court held that every
plaintiff must bring his case under one or the other of the well recognized heads of torts .
The theory of pigeon hole has been criticized by the latter writers . According to the critics if this theory is
accepted then the new categories of liability in tort would be closed . The Courts would be prevented from
recognizing any new torts . There is not a single ground where the Courts refused plaintiff’s case on the
ground that the case relates to new tort .

In the case of Ashby Vs. White , it has been clearly established that mere novelty will not prevent a person
from suing in tort . In fact , Torts are infinitely various and not limited or confined .

In the case of Ushaben Tribedi & Another Vs. Bhagyalaxmi Chitra Mondir & others , the Hon’ble Gujarat
High Court observed that it is true that tort is not defined . Torts are infinitely various and not limited and
confined . The novelty of claim may arise and Court may recognize a novel claim . India is a country where
various religions are followed , and this has to be kept in mind while evolving a new tort .

Q:- What are the defences or Justifications to an action in tort ?


Answer :-
Sir Frederick Pollock said that the defences or justifications are the rules of immunity which limit the rules
of liability . The defences to an action in tort are called justifications or grounds of immunity from liability to
an action in tort . There are various conditions which justifies an act from being wrongful , which would
otherwise be actionable in tort . These justifications are based on the grounds of public policy .

The following are the fifteen defences or justifications to an action in tort :-


1) Judicial acts .
2) Quasi-Judicial acts .
3) Executive acts .
4) Acts of State .
5) Private defence.
6) Exercise of common rights.
7) Plaintiff a wrong-doer.
8) Acts causing slight harm.
9) Mistake of facts.
10) Inevitable accident.
11) Leave and licence.
12) Statutory authority or the acts authorized by the statute .
13) Works of necessity .
14) Authorities of necessity.
15) Acts done under parental or quasi-parental authority .
An act done under any of the aforesaid conditions can not be said to be wrongful and liable for an action in
tort .
Q:- What do you understand by an “ act of God “? How far is it a valid defence ?
Answer :-
According to Winfield ‘act of God ‘ is an operation of natural forces so unexpected that no human foresight
or skill could reasonably be expected to anticipate it.
Salmond defined an ‘act of God ‘as “any event which could not have been prevented by reasonable care on
the part of any one.”
‘Act of God ‘ may be defined as an act of direct , sudden and irresistible act of nature which no human can
foresee or anticipate and resist by any amount of care and skill . Storm, tempest, lightning,
extraordinary frost , earthquakes , cloud burst and tornado, etc. which are occasioned by elementary forces
of nature will come under the category of acts of God . These are not the acts of any human being . Nor any
human being can anticipate it or prevent it from causing any harm .
In the case of Nugent v Smith, James L.J. defined this doctrine of “ Act of God” as “….. Every unusual
occurrence that happens during the course of nature is not an act of God. Nature presents surprises to us
every now and then , we must be prepared to face them. The hand of God is behind everything ……… “
The House of Lords in the case of Greenoc & Corporation v Caledonian Railway held that to be an act of
God, an occurrence must be (1) due to natural causes , (2) of an external nature, and (3) such that it could
not be anticipated or resisted . An accident caused due to electric wire is not an act of God.

Act of God is said as a defence of ‘Vis Major’


It should be noted that whether or not a particular occurrence amounts to an act of God is purely a question
of fact.
‘Act of God’ is a valid defence in some circumstances . But the onus is upon the party who takes this plea as
a defence .

The principal of act of God as a defence was accepted in the leading case of NICHOLAS v.
MARSLAND, where the defendant possessed certain artificial pools formed by damming a natural stream.
The dams were properly constructed and adequate for all ordinary occasions, A violent storm however,
described by witnesses as the heaviest within human memory, broke them, and the rush of water destroyed
certain barges downstream. It was held that the defendant was not liable, as there was no negligence on the
part of anyone, and the accident was due directly to an act of God.

In another leading case of GREENOCK v CALEDONIAN RLY., a Municipal authority, in laying out a
park, constructed a concrete padding- pond for children in the bed of a stream, thereby altering the course
of the stream and obstructing the natural flow of water there from. Owing to a rainfall of extraordinary
violence, the stream overflowed at the pond, and as the result of the operation of the authority a great
volume of water, which would have been carried off by the stream in its natural course without mischief,
poured down a public street into the town and damaged the property of the railway company. It was held
that the municipality was liable for the damage. They could have taken sufficient precautions in anticipation
of such extraordinary rain and therefore, the defence of Vis major was not accepted .

Innuendo.
Answer :-
The term Innuendo means an explanatory statement in the plaint to be given by the plaintiff to the effect that
though the alleged words are not libelous in their ordinary meaning, in fact, they have specified underlying
libelous meaning in the circumstances of the case. Sometimes, apparently or prima facie a statement may not
expose defamatory meaning . But in the particular circumstances the words may convey an insulting
meaning in the manner in which they are spoken. So Innuendo means a statement which is prima facie
innocent but the plaintiff pleads an underlying defamatory significance to it. In that event the plaintiff must
state in his pleading the circumstance which makes it actionable

As for example if A says ,” Mr. B is a very honest man, he never stole my watch.” In the above circumstances
the statement is defamatory . The innuendo or the under lying or real meaning is that B, being dishonest , in
fact , did steal the watch of A .
In the case of Cassidy v. Daily Mirror , the defendants published in a newspaper a photograph of one M.C.
and a Miss. X, together with the words “Mr. M.C., the racehorse owner and Miss X, whose engagement has
been announced.” In an action by the plaintiff, the wife of M.C., it was held that the publication was capable
of conveying a meaning defamatory of the plaintiff, viz, that she was not the lawful of M.C. and was living
with him in immoral cohabitation.
In another interesting case of Francis Mezzora, the defendant , who was a portrait painter, was employed
by a person to paint his portrait. Upon completion, the customer refused to accept and pay for the portrait
on the ground that the job was not done well. Thereupon, the defendant painted a pair of asses’ ears on the
portrait, and put it up for sale. The Court held that there was actionable libel.

A school master has set up a rival school next door to the plaintiff . The students from the plaintiff's school
flocked to the defendant's school . The plaintiff had to close his school . What is the liability of defendant in
an action in tort ?
Answer :-
The instant problem comes within the purview of maxim damnum sine injuria .
The maxim damnum sine injuria means that the defendant has no tortious liability if damage is caused but
no legal right of the plaintiff is infringed by him .
The facts of this present problem is quite similar to the facts of Glucester Grammar School's case where it
was held that free and fair competition does not amount to tort .
Therefore , based on the maxim damnum sine injuria and the judicial principle held in the Glucester
Grammar School's case it can safely be opined that the defendant has no tortious liability in the given
problem .
The plaintiff will not succeed in an action for tort against the defendant .