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LAW OF TORTS

A tort, in common law jurisdictions, is a civil wrong or an offence that unfairly causes someone else to suffer loss or harm, without reasonable cause, resulting in legal liability for the person who commits the tortuous act; where the doer is called the tortfeasor/defendant and the victim being plaintiff.

The word Tort has been derived from the Latin word tortum which means twisted. The implication of which means an act or conduct of a legal individual which is twisted in nature, or not in consonance with the law of the land. The subject area of tort law deals with Civil Offences/ Civil Wrongs. Thus, this branch of law pertains to acts which are wrongful, twisted and unlawful inducing a civil liability on an individual who commits a tort.

Ubi jus ibi remedium

Tort law is based upon the principle of ‘ubi jus ibi remedium’, which means where there is a right, there lays a remedy to protect it. Principally, any right awarded to an individual will have no meaning unless and until it is supported by a legal remedy. So, if law awards an individual a right it also offers protection for that right, where the person who breaches such right shall be held liable in law to compensate the victim for such violation.

Example: ‘A’ is detained by ‘B’ not allowing him to institute a vote on the day of voting in his constituency. B shall be liable to compensate A as voting was a statutory right of A and B violated his legally sanctioned right. Thus, if a legal right authorized by law to an individual, its’ violation is also protected; enforcing the above stated principle.

Tort as a civil wrong

It means that tort is a concept of civil law (the other being criminal law). Categorically, civil law is that division of law that deals with offences having a comparative lower degree of harm. It is treated to be an offence against an individual, whereas criminal law treats offences to be against the society/humanity at large. The objective of civil law is to compensate/award damages to the injured party/victim i.e. monetary damages. On the contrary, the objective of criminal law is to punish (imprison) the person in order to maintain harmony in society.

Example: ‘A’ gives his watch for repair. The watch-maker negligently breaks the watch. Now, the dispute can be individually settled between A and the watch-maker, if the watch-maker agrees to pay the cost of A’s watch. Such disputes are deemed to be civil in nature, fulfilling the basic essential,

(a) lower degree of harm (damage caused),

(b) affects an individual’s right only,

(c) only A has a right to claim damages from the watch-maker, and

(d) the dispute can be resolved if the watch-maker pays A for the loss incurred by him.

 

On the contrary, ‘Z’ is caught smuggling RDX (explosives) and other unauthorized ammunition into the territory of India, which is a recognized crime in India. Z is deemed to be criminally liable as it can be derived from the basics of criminal offences,

(a) Z’s action reflects an intention of causing a higher degree of harm,

(b) such an act not only concerns a specific individual but affects a community as a whole and any citizen of the country can approach a police station and make a complain (not restricted to a certain set of individuals),

(c) the state (government) on behalf of all its’ citizens has a right to prosecute such person(s) as the offence is treated to be against all its’ citizens, and

(d) the objective of which is to punish the individual for such an act rather than to award damages to an individual or individuals.

 

Cumulatively, civil wrongs and criminal offences can be bifurcated on the following grounds, expressed as under; 

Civil Offences

Criminal Offences

[1] lower degree of harm

[2] right in personam, observed to be an offence against an individual

[3] only the injured party has a right against the offender

[4] Objective: to compensate/award damages to the victim in monetary terms (by payment of sum of money)

[1] higher degree of harm

[2] right in rem, observed to an offence against society

[3] the State takes action against the criminal on behalf of the whole community

[4] Objective: to punish the offender (imprisonment/jail)

 

Right in Personam

It means that civil disputes involves a personal right and hence only the affected person (whose personal right is violated) can bring a suit to court of law. Personam means personal. If Anita wants to seek a divorce with Aman, then only Anita can bring an action in court. No one on her behalf can seek a divorce. This is the nature of civil disputes, which includes matrimonial disputes, contractual disputes etc.

Unlike, criminal law where there is no bar to maintain a case, as anyone can be an informant and proceed criminally by lodging a First Information Report (FIR). For example, if Anita is being subjected to domestic violence, then in such a case Anita herself or her family and friends or any third person who may be absolutely unrelated to Anita can also bring about a case against Aman for such crime. (For right in rem, refer to: Law of Crimes)

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PROCESS OF COMMISSION OF TORT

A tort is said to be committed when either an act or an omission results into causing a legal damage, incubating a civil liability on the person who committed or omitted such act. The liability which can be set-off by compensating for the damage(s) caused in monetary terms i.e. by payment of an amount of money.

Hence, the process could be broken down into the following essentials;

[a] Act/Omission: when a person executes an act which is unlawful oromits to perform a legal duty is said to commit an act of tort.

[b]Legal Damage: such act or omission shall result into a legal damage i.e. it should cause a damage that is recognized to be a substantial loss in law where a right guaranteed to an individual is violated. For example, ‘A’ an honest police officer witnesses a movie screening where police officials are shown accepting bribes. The movie may hurt the sentiments of ‘A’, but it is surely not a substantial loss or violation of an individual’s right in eyes of law. Hence, ‘A’ cannot claim any legal damage from the movie’s cast and crew.

Considering torts, such damages are Un-liquidated Damages in nature, meaning the amount or extent of which has not been predetermined/decided/agreed upon prior to commission of such wrong. Explaining via an example, if ‘A’ slaps ‘B’ violating B’s right to freedom of space and movement. Then the courts may award damages to B by direct A to pay a sum of Rs. 5000/- to B. Now, the sum of Rs. 5000/- was not a predetermined value between A and B, but it is awarded as an Un-liquidated damage to B.

[c] Liability: when any act or omission causes a legal damage then it becomes the responsibility of the person causing such damage to reimburse/reinstate for the damages caused due to his own fault. Liability can be understood as a negative form of responsibility. The basic idea behind inducing such liability is derived from the concept of, that no person shall suffer an unlawful loss or receive an unlawful gain. Hence, causing a legal damage causes an unlawful loss to a person which needs to be compensated by the individual causing such damage.  

[d] Compensation/Damages: all compensation given or damages awarded are to be monetary in nature i.e. by payment of a sum of money. The objective of a civil penalty is to reinstate the suffering individual in a position in which he was when such legal damage was not caused to him. For example, ‘P’ gives his new shirt for dry cleaning. The dry cleaner negligently spoils the colour of the shirt. Now, the dry cleaner shall be liable to pay to ‘P’ the cost of the shirt which would enable him to be in the same position as in when he gave his shirt for dry cleaning.

There are two concepts that afloat with process of commission of tort;

·         Injuria Sine Damno

·         Dammnum Sine Injuria

 

Injuria Sine Damno

The word ‘damno/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. The word ‘sine’ meaning without.

‘Injuria sine damno’ means violation of a legal right without causing of an actual legal damage. Meaning, that even if a legal damage cannot be established, violation of a legal right is damage enough to constitute a legal damage. As established, a legal damage is an essential to constitute a tort. This concept deals with legal damage and legal injury (violation of a legal right), where both qualify to be a substantial loss under law of tort.

Legal damage pertains to any physical loss, for example ‘A’ negligently damages B’s car. Damage to the car is tangible in natureand qualifies to be a legal damage caused to B by A. Whereas legal injury deals with, if A enters B’s property without his permission committing the tort of trespass, A has not caused any physical damage to B but has violated his legal right (caused a legal injury) of free and fair enjoyment of his property. Hence, even though this time no actual legal damage is caused, violating a person’s right causing a legal injury is competent to constitute a legal damage making the person liable under law of tort.

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 tort of 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.

Important Case Laws:

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 unsatisfied with the food served at the hotel, and so, he purchased some spare ribs (raw meat) 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 and damages were awarded.

 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.

Damnum Sine Injuria

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. So, the maxim means that a damage is caused but 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 or other damages.

In order to make a person liable in law, the plaintiff must prove that he sustained sufficient legal injury in eyes of law. Damage without legal injury or claimable legal damage in law 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.

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.

Important Case Laws: 

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 school. 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, even though damage is caused.

In another famous case of Day Vs. Browning, where the plaintiff’s house was called “Ashford Lodge” for the past sixty years, and the adjoining house belonging to the defendant was called “Ashford Villa” for past 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 relation to violation of a legal right.

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FELONIOUS TORTS

The word felony means and relates to offences that are serious or grave in nature. The word felonious means something that relates to nature of felony. Felonious tort inculcates the concept of a civil wrong done with a criminal intent. In simple terms, when an act amounts to both, a tort and a crime (felony) are distinctively defined as felonious tort.

Felonious Tort = Civil Wrong (Tort) + Criminal Intention (by nature)

For example; ‘A’ slaps ‘B’, then subsequently B can avail both legal remedies available with him, either to sue A for damages (monetary compensation) for infringing his legal right under law of tort or to initiate a criminal proceeding against A for hurt or grievous hurt. Such an offence is called as felonious tort.

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GENERAL DEFENCES TO TORT CLAIMS

It is evenly possible at times that a person my fall under garb of a tortious liability, even though he may be set free by law as the tort was committed under special unavoidable circumstances. General defences to tort claims means where a defendant can safeguard himself or escape from a tortious liability by qualifying under a defence available in law. Such defences are pre-defined and established principles in law.

The following defences can be legally claimed in order to escape a tortious liability;

[1] Volenti non fit injuria

[2] Plaintiff is the wrong doer

[3] Act of God

[4] Mistake

[5] Necessity

[6] Private Defence

[7] Inevitable Accident

[8] Statutory Authority

[1] Volenti non fit injuria

It is a defence of consent i.e. the plaintiff himself consented to the act of tort against him. Volenti non fit injuria means where the plaintiff voluntarily consented, either expressed or implied, to the harm/damage caused to him. Expressed consent means where the consent was physically given in oral or written, whereas implied consent relies on the conduct of the plaintiff which amounted to his consent.

Explaining further, ‘Z’ visits a chemist to procure medicines. The chemist refused to sell a specific medicine to Z as the medicine stock had crossed expiration. Z acts smart and slips in the expired medicine. Later, he consumes the expired medicine and suffers an allergic reaction. Z brings out a legal action against the chemist. The chemist can take the general defence of volenti non fit injuria and escape from Z’s tortious claim.

B, who is a heart patient visits an adventure park. One of the entertainment rides had a sign board on the entrance, ‘heart patients and pregnant ladies not to board the ride’. B ignores the warning and boards the entertainment ride. Later, his health deteriorates resulting into hospitalization. On B bringing a legal action against the entertainment park authorities, the defence of volenti non fit injuria can be validly claimed escaping any such tortious liability brought by B.

Essentials to volenti non fit injuria;

(a)   The plaintiff was aware or was reasonably expected to be aware of the risk he is assenting to, involved in that situation or circumstances.

(b)   That he agreed either by physical evidence of oral or written statement, or impliedly by conduct to suffer the consequences of his own acts.

[2] Plaintiff is the wrong doer

The essential condition to the defence of plaintiff is the wrong doer is that the plaintiff was involved in an unlawful/illegal act which caused such damage(s) to him. Since, the plaintiff was himself at fault he has no right to claim any damage for a legal injury caused to him.

For example; A lost Rs. 10,000/- to B while gambling. A brings out a legal action against B for recovery of the amount of Rs. 10,000/-. B can plead the defence of plaintiff is the wrongdoer to escape the tortious claim against him, as gambling is an illegal act.

‘P’ enters ‘Q’s’ house without his permission. On the main gate there is a sign board signaling ‘Beware of the dog’. Q’s dog bites P causing him grievous hurt. Now, P cannot claim any damage from Q as he himself was involved in an illegal act of trespassing Q’s house.

Hence, deriving essentials to plaintiff is the wrong doer;

(a)   The plaintiff must be involved in an illegal/unlawful act.

(b)   The damage caused or the injuries suffered must be a direct outcome of the illegal/unlawful act.

(c)   Leaving no remedy to the plaintiff against the defendant, as the defence of plaintiff is the wrong doer can be claimed

[3] Act of God

Act of God, which may also be termed as ‘Vis Major’ can be claimed as a valid defence to tort when any tortious act/accident occurs because of an unforeseen natural event. Example, earthquake, storm, tsunami, landslide, flood and such related natural disasters and events.

For example, ‘A’ and ‘B’ reside in adjacent compounds. A constructs a water reservoir in his compound having capacity of 1,000 liters of water. On account of an earthquake striking that area the reservoir breaks open flooding B’s compound. Then B shall not be able to claim any damages from A as it was an unforeseeable natural event that caused such damage and not on account of A’s negligence.  

Accountability under available Technology/Scientific Development

It is important to understand that if any natural act that can be anticipated and reasonable precautions can be carried out in order to minimize or completely avoid any damage, then if such damage occurs the defence of Act of God will not be applicable to such circumstances.

Explaining further, the slums of Mumbai get washed off due to unexpected heavy rainfall. The slum dwellers form an association and file a suit against the Bombay Municipal Corporation for compensation as they failed to reallocate them or warn them about such unexpected natural event. At first, such an act is a natural event and is unforeseeable by human intervention, leaving no remedy to the slum dwellers as the Department can plead Act of God as a defence. But, if by use of weather satellite and subsequent technology the Metrological Department under Municipal Corporation of Bombay was able draw an estimate of 300% excessive rainfall in coming monsoon season and fails to issue a notification and take remedial actions warning the city dwellers of such natural calamity. Then in such circumstance the Municipal Corporation of Bombay can be made accountable under tort of negligence and be made liable for damage caused.

Stating another situation, if a construction company JP Ltd. has been issued a tender of road construction on a hill dominated geography. While beginning to construct the road the engineers are well aware of the porous rocks (soft rocks) and do not take proper precaution to fence them. While detonating the area a land slide is caused destroying the house of A. A can successfully sue JP Ltd. as defence of vis major would not apply because by use of scientific research a devastating effect of a landslide could be predicted.   

Essentials to defence of Act of God;

(a)   the act must be due to an unforeseeable natural event

(b)   the act must cause damage to the plaintiff

(c)   such act should not be foreseeable by;

                                          i.    simple human foresight, or

                                        ii.    use of scientific knowledge and technology

[4] Mistake

Mistake can be said to be an excuse which the court of law may declare to be reasonable enough in order to escape a tortious liability. Generally mistake is not a strong defence in tort law as law does not keep any room for faults of an individual even if they were not caused with any intention. Mistake can be classified under the following two heads:-

(1)   Mistake of Fact

Mistake of fact is a valid defence and excusable under tort law. It is when an individual fails to gauge the physical nature of his surroundings or tends to misread the factual situation, on basis of which his actions turn out to set tortious liability upon him. 

Example, Lalu had purchased a new scooter and was visiting a temple thereafter. Kalu, who also had bought an exact same model and colour of the scooter as Lalu, parked it in front of the temple and went inside. When Kalu came outside he saw Lalu trying to start his newly purchased scooter. Kalu sues Lalu for trespass to property. In such a scenario, Lalu can successfully plead the defence of ‘Mistake of Fact’ as he genuinely got confused, the scooter model and colour being the same.

(2)   Mistake of Law

Mistake of Law is no defence in tort law. It is based upon the legal maxim of ‘Ignorentia juris non excusat’, meaning ignorance of law in no excuse. No individual can claim defence by proving that he was unaware of the applicable law. Law expects every individual to know the legal implications of one’s own act. 

Example, A foreigner is visiting India in relation to research on Indian demography. One night he is caught by the police smoking at the railway station (public place). He refuses to pay the fine as he pleads being unaware of the law that smoking is public places is an offence. He cannot successfully claim the defence of mistake as this is a breach of law and in no way can be excuses.

Another important example; Zaid was travelling from Dubai to India with 200 grams of gold, permissible as per Indian laws. He boarded the flight on 20th April 2017 and on 21st of April 2017 a legislation was passed and made effective reducing the limit to 100 grams. Zaid subsequently lands in India and is taken in custody by the custom office. Zaid would be liable to pay a penalty/fine as this is a breach of law and no defence of mistake would be applicable.      

Essentials to defence of Mistake:

(a)    An act done against an honest belief,

(b)    Extending a legal liability on the doer,

(c)    The act so done, not to be in breach of law.

[5] Necessity

Nothing is an offence where the act so done is performed in public interest, in order to save a great harm that could be avoided. Necessity is to be used as the last resort. An act which would otherwise be an offence can be excused if it could be proved that such an act served the public interest by stopping a bigger loss or harm.

Necessitas inducit privilegium quod jura private

This Latin maxim means necessity includes a privilege because of a private right. A private right to safeguard a public interest. If even remotely the act so done was not necessary in the given circumstances the defence of necessity is flawed.

Example; ‘A’ is a passer-by and he observed a small shop is on fire. Seeing no one around he trespasses the property of ‘B’ where there was a well. He draws water out from it and tries to extinguish the fire. B sues A for trespass. In such a circumstance, A can validly use the defence of necessity.

In the same situation, if there was to be a public well very close to the burning shop and A still trespasses the property of B. In such a case A will be liable for trespass as there was an alternative option available and no absolute necessity could be drawn in the circumstance.  

Considering the same situation again, if there was a public well close to the shop at 50 meters and the well in property of B at 20 meters. A draws water by trespassing the property of B. On the occasion of B suing A for trespass, A can use the defence of necessity as in the present circumstances given, distance was of essence to save a greater harm, as the fire could have travelled distance if not stopped.

Essentials to defence of necessity;

(a)   A tortuous act is committed,

(b)   To save a greater harm/loss,

(c)   In public interest, and

(d)   Where no other alternative option was available.

[6] Private Defence

Private defence means resorting to an offensive and aggressive act in order to safeguard and defend ones own self against an unreasonable force or harm. The act of private defence is applicable against one’s own self (body), his property, his akin and property of akin. The act of private defence under tort, theoretically, is never extended to taking life of another person, where the person exercising such right will be liable for culpable homicide.

The prima facie use of private defence is against an imminent threat or attack. Where there is no other alternative remaining with the defendant than to use force to escape, otherwise the defendant shall suffer illegal injuries without any reasonable cause, a force exercising the right of private defence is justified.

Example, Saroj corners Akash inside a room in order to beat him. Akash punches Saroj in the stomach and escapes. Akash can be said to have rightly exercised the right of private defence. Again, it is important to remember that Akash in the given scenario had no other option left with him than to hit Saroj and escape to safeguard his body and life. 

Another important factor is use of reasonable force. The reaction to the incoming threat or attack has to be reasonable. It cannot be excessive; where the privilege of the right to private defence is to enable a person to escape an illegal or unreasonable force and not to take revenge or take law in one’s own hands.

Example, A is approaching B with an iron rod to hit him. B having no route to escape takes out his gun and shoots A in the head. B is liable for death of A as the force used was excessive and disproportionate. B could have shot A in his limbs as to enable an escape plan.     

Essentials to use of Right of Private Defence;

(a)    Infliction of imminent threat or attack,

(b)    Use of counter force as a reasonable reaction,

(c)    Reaction cannot be disproportionate or excessive, and

(d)    The objective being to escape the situation and not counter it.

[7] Inevitable Accident

Inevitable act means an act which after taking due precaution and care, without and negligence of the person, results into tortuous liability. Accident means an event which was beyond anyone’s control. Hence, inevitable accident means an event that resulted in a tortuous liability where it could not have been stopped even after taking all due precaution and care, with no negligence of the doer.

Example; ‘Z’ is driving on an expressway within statutory speed limit. Surprisingly and suddenly, a small child comes running on the road. Z in order to save the child, deviates his car as a result hitting ‘P’. P sues Z for damages. Z can claim the defence of inevitable accident as there was no fault of Z. If any claim so maintainable by P would be against the legal guardian/parents of the child, as there are responsible for the conduct of the child, landing no responsibility on Z.

Another important example is where A while driving his car observes that the brakes have failed; due to which A ends up injuring B. B sues A for compensation. A cannot claim the defence of inevitable accident as the maintenance of his car breaks was his duty as he did not take all precautions and care.

Similarly, if A has turned up on the road right after getting his car services and checked and the breaks fail resulting in injuring B. A can claim the defence of inevitable accident as this time he had taken all due precautions and care, where the service station will now be liable to compensate B, as they failed in their duty to maintain the car properly.

Essentials to defence of inevitable accident;

(a)    all due care and precaution is taken by the defendant,

(b)    no negligence on part of the defendant, and

(c)    the defendant meets with an accident. 

[8] Statutory Authority

Statute means a legislation passed by the parliament or a law framed under the provisions of the constitution if India. Authority is a person exercising power under said provisions of law. If any tortuous act is committed by a person acting under authority bestowed upon him via a statute (legislation/law) and such authority while discharging his duty and functioning in public interest, commits a tort, he shall be entitled to claim the defence of Statutory Authority. 

Example, if a person lives close to a railway track, the rail noise which undoubtedly causes nuisance is non-actionable under tort, as railways is a statutory authority serving a greater public purpose.

Similarly, if the local municipality is reconstructing man-holes in your area due to which vehicular access to you house is hampered, no action can be brought against the municipality workers as there are working in public interest.

On the other hand, the municipality leaves the man-hole open and unattended, without any warning signs or board; in the event of ‘Q’ falling in the man-hole at night; the municipality is very much liable to compensate ‘Q’ as the act of leaving the man-hole unattended would amount to negligence, not being done in public interest.

Essentials to defence of Statutory Authority;

(a)   the act is being done by a public (statutory) authority,

(b)   in public interest and not in private capacity,

(c)   being non-negligent with proper care and precaution.

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CAPACITY TO SUE AND BE SUED

Capacity to sue and be sued means and is related to the Latin word ‘locus standi’. It means the right (or) capacity to bring an action or to appear in a court by an individual (or) a group of persons.

Generally in tort law there is no bar on any legal individual to bring a suit against anyone, the only criteria being infringement of a legal right. Vice-versa, any legal individual can be sued if he has committed a tort. The only way to escape liability is qualifying for a general defence under tort law.

Under competitive requirement the following capacities are important to be discussed;

[1] Minor

[2] Company/Corporation

[3] State or Judicial Authority

[4] Partnership Firm

1.      Minor

Tort law, unlike contracts does not differentiate liability on basis of age. If any person even being a minor violates a legal right of another, he shall be liable to compensate the plaintiff.

 

A minor is a person who is under 18 years of age and he ceases to be a minor at 12:00 am midnight on the date of his 18th birth cycle. Under tort law there is no bar against a minor to sue or be sued if he breaches a legal right of another.

 

Suing a minor

The only legal mandate in regard to sue a minor is that any plaintiff wanting to sue a minor will have to do so through the minor’s legal guardian.

Example; Rahul, a minor while playing colony cricket with his friends, hits the cricket ball which damages a new LCD television bought by Mr. Sampat. In such circumstance, Mr. Sampat can sue Rahul through his father (legal guardian) for the damage caused to him. The case will be registered in the name of minor Rahul, but the ultimate compensation shall be paid by the father for the fault of his son.

 

Sued by minor  

A minor can sue like an adult with the same condition as above that he will be able to sue through his legal guardian. For example, if by negligence of Mr. Anoop while parking his car in the garage he damages a tri-cycle of a minor Sunaina. He will be liable to compensate her on account of damaging her property by negligence, without reasonable cause. The action of filing a civil suit shall be brought against Mr. Anoop by the parents of Sunaina.

 

Note:-

[1] In cases where the minor has no legal guardian, the courts have the right to appoint the minor a legal guardian who for all purposes of the case instituted by/against him will be assisted by such person.

[2] Tort law is a separate division of civil law, where unlike contracts a minor is not safeguarded of any liability causes by violation of a legal right of another.

[3] It is pertinent to remember that the parents or legal guardians of the child are held indirectly responsible of the acts of the child is because they are responsible for the behavior of the child and are expected to take control over their (child’s) actions.

 

2.      Corporation / Company

A company or corporation in law is a legal person and hence can be held liable under tort for breach and violation of legal right of another legal individual.

Undoubtedly, a company acts through its partners and directors, who are actually responsible for the tortuous acts of the company done during course of business (not in private capacity, where they will be liable as an individual). The company is made liable because the tortuous act is done on behalf of the company. The compensation so paid shall be debited from the company’s account(s) which indirectly will affect the revenue of the partners and directors.

 

For example, during the course of business a company issues an advertisement promoting one of its product-line. The advertisement endorses statements which defames and accuses other companies for use of sub-standard materials in their products. Such a statement which/if not being true will hold the company tortuously liable for making such a statement in its advertisement. The company will be liable to compensate other companies for their defamation and lowering their product reputation.

 

Note:- criminal proceedings are barred against a company or corporation, as they being legal persons and not natural individuals and cannot be sentenced to imprisonment. Simply, law machinery cannot put a building or company registration papers in jail as against a criminal act. It is presumed that company has done a criminal act via a natural person (partners, directors etc.) and they are criminally tried for the same. Example: Satyam Scam.

 

3.      Statutory Authority/Judicial Authority

A statutory authority or judicial authority has the capacity to sue any legal individual in the name of the post that such authority holds. Any person can sue the statutory authority or judicial authority for compensation against violation of his legal right in the name of the post such authority holds. Hence, a statutory or judicial authority can sue and be sued in its own name.

 

For example, if Bombay Development Authority (BDA) while constructing roads, one of its employee operating a JCB machine negligently breaks open a house gate, demolishing it. The house owner can successfully sue the state authority i.e. BDA for compensation of the loss caused to him by its employee. Hence, a corporation can be sued in its name.

Similarly, if a person opens a chemical store next to Jal Nigam Office, Delhi (Water Board Office) and is negligently storing chemicals in his compound which is contaminating the underground water reservoir in the property of the Jal Nigam Authority. In such circumstances, the Department of Jal Nigam can file a suit of nuisance against the owner of the chemical store for compensation. The owner will be liable to compensate for the nuisance caused by him. Hence, a corporation can sue in its name. 

 

Note:- if the person holding an authoritative post commits a tortuous or criminal act under private capacity i.e. not during the course of employment, the authority shall be liable in personal capacity and not be shielded under the name of the post/authority he holds.

 

4.      Partnership Firms

Like corporations and companies a partnership firm can sue and be sued in its name. A registered partnership firm is a legal person and is liable for its tortuous activities committed by it and deserves compensation for tortuous acts done against it. In simile to a company/corporation, a partnership firm functions through its partners and as the tortuous act is done by or against the partner of the firm during the course of business the firm can be sued in its name and is entitled to legal redress.

 

Note:- Course of business/work requires essential understanding as the partner if outside the scope of business or is doing some work not in connection with the objectives of the partnership firm shall then be individually liable for his tortuous activities; and the firm will not receive or make compensation on behalf of the partner.

 

Example being, if a partner is purchasing ten mobile phones for official purpose and additionally buys one mobile phone, Samsung S6 Edge, for his personal use and after one month of use the battery explodes. On account of the explosion of the battery the partner if claims a refund will claim in private capacity and not on behalf of the firm, even though he was on a official visit to the mobile store, discharging duties in business capacity, but buying one mobile phone for personal use will be treated to be an act out of course of business. 

 

When being sued;

For example, A, B, C, D and E are five partners who run a partnership firm. In the course of business one partner, B carries out construction work at their branch office. Due to the construction activities the way to other offices gets blocked causing nuisance to general public. David, a worker at another office in the same compound sues the partnership firm for nuisance. The firm shall be liable to compensate for nuisance as the construction activities were being carried out by B for and on behalf of the firm.

 

Alternatively, David can also choose to sue B directly in his official capacity and in such a case the firm shall be making the compensation on account of B being a partner thereof.

Also, David can sue A, C, D or E in their official capacity as they are also partners in the same firm; even though B was the one carrying out the construction activities.

Hence, the concept of one for all and all for one will stand true in this case. While suing a partnership firm you can choose to sue the firm directly or any or all the partners of the firm in their official capacity.

When sues;

In a partnership firm, each and every partner can sue on behalf of the firm or can directly sue in the name of the firm. For example, in Dhiraj & Dhiraj Associates there are two partners Soha Dhiraj and Sajhid Dhiraj. The two partners can sue in their name individually on behalf of the firm or any tort doer can be sued by the name of Dhiraj & Dhiraj Associates.

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VICARIOUS LIABILITY

Legal maxim: the concept of vicarious liability is derived from the Latin maxim ‘qui facit per alium facit per se’ meaning he who acts through another is deemed to have acted himself.

The term vicarious means acting on behalf of another. In parlance it means something which is transferable or movable as of right from one individual to another. Vicarious liability is a liability induced upon a person when another individual acting on behalf of him commits a tort and the liability generated thereof is affixed on the person for whom the work or act was being done. 

 

Example, Mr. A has hired a driver to drive his Mercedes car. While the driver is driving Mr. A to his office the driver negligently rams into Mr. B's car causing damage. In this case Mr. B will be compensated by Mr. A as the driver employed by him was negligent in performing his duty. The duty so allotted to the driver was actually an act done on behalf of Mr. A, hence the liability too will be borne by him.

 

Vicarious liability is not generally applicable in all situations. The relationship between the parties has to be established in a manner where the act done has to be proved that it was being done on behalf of someone. Legally, an act done on behalf of another has to follow legal mandates and requisites and is applicable in the following relationships;

[1] Master-Servant Relationship 

[2] Principle-Agent Relationship 

[3] Partnership Firm

[4] Statutory Authority

 

[1] Master-Servant Relationship 

The general principle is that a master is liable for all the tortuous acts of the servant when done in the course of employment. The liability is a result of act(s) done by the servant is act(s) actually done on behalf of and for the master's gain. For such a relation of liability to establish the following essentials are to be fulfilled; 

 

(a) Hire and Fire test: the master has to be under authority and free will while deciding whom he is hiring as his servant. Also, he should hold the right to fire his servant at any point in time. 

 

Legal implication: if the master is under liability to compensate for his servant's tortuous acts; the underlying reason is that the master chose the servant by his choice to act and do work on behalf of the master. Also, the master if so desires can fire the servant and keep another person. It is incumbent upon the master to carefully choose a person to act as his servant, being careful while hiring that the servant will not be negligent while performing his duties.

 

(b) Direction and Control: the servant should be working under the direction and control of the master. Meaning thereby the master should be under the capacity to regulate the actions of the servant. The directions issued by the master are to be adhered by the servant while performing actions on behalf of the master. 

 

Legal implication: Any deviation of the servant from the directions issued by the master, will still hold the master liable as even though an act was authorised and a mode of performance was prescribed, the servant failing to perform it correctly puts an incumbent liability on the master as the master has hired the person after due consideration to act on his behalf. 

 

(c) During course of employment: Course of employment is not only the duty hours of the servant but also extends to work performed in relation to an act authorised by the master. The servant has to be in scope of employment i.e. working for the master to invoke vicarious liability. 

 

Legal implication: the act so authorised by the master, performed correctly or wrongly (Tort), both of which circumstance will lay a liability on the master to compensate for the tortuous act of his servant. By the above said it is important to understand that the servant while carrying out activities for the master misses to follow instructions of the master, the master will still be deemed to be liable. The reason behind the same could be drawn from the concept of ‘hire and fire’ test, which says that the master while hiring the servant has to be cautious in selecting the person of his choice, as and when, even if he is negligent to carry out the work properly, the master shall be held liable.

 

For the servant to be outside the scope of employment, the tortuous act so performed by the servant shall in no way be connected to the authorised act. The act should be done in private capacity of the servant. 

 

For example, Kriti sends his servant to the marker to buy vegetables. At the market place the servant quarrels with the vegitables vendor, committing tort of assault. The master will be liable as buying vegetables was part of the authorised act. In another circumstance, if in the market the servents visits a tea stall and gets into a quarrel with the tea vendor, committing assault and battery, now the master will not be liable as the act was done in private capacity and was in no way related to the authorised act. 

 

Hence, persons including domestic help, personal/home employees, orderlies etc. form part of a master-servant relationship. 

 

History of the concept of Vicarious Liability

Historically, the concept of vicariously liability initiated from cases relating to tortuous acts done by a servant in course of employment for his master. The theory was purported to safeguard the interest of the plaintiff against tortuous acts committed by servants of masters. The reason was that the servant lacked the financial capacity to compensate the plaintiff, in lieu of being insolvent person (pauper); failing the very basis of tort action under the Latin maxim Ubi jus ibi remedium (where this is a legal right, there is a remedy). Also, the master illegally escaped his liability as the servant was actually working on the master's behalf. Therefore, to solve this legal delima the concept of vicarious liability was formed, granting justice to plaintiff's aggrieved by servant's tortuous acts, where the master was to pay the compensation. 

In addition, it was also laid down that the master after compensating the plaintiff can recover the amount of compensation in instalments from the remuneration paid to the servant. Where the first liability to compensate the injured victim party/plaintiff was always on the master. 

 

[2] Principal-Agent Relationship 

The general principle is that the principal is responsible for the tort(s) committed by the agent when in course of employment. A principal-agent relationship is governed by an agency contract. A principal is a person who hires an agent to carry out work/acts on behalf of the principal in return of remuneration. For a principal-agent relation to subsist the following criteria is observed;

 

(a)     Direction and Control: the first element that decides that the principal shall compensate for his agent’s tortuous acts is that the agent should be in control of the principal i.e. that agent shall follow the directions issued by the principal and in cases where the direction is unclear, the agent has to act prudently and take reasonable steps to carry out the work of the principal.

For example, a person hired at an automobile store to cast and promote sale of vehicles is said to be an agent of the showroom owner, being the principal.

A salesman hired at a grocery store to facilitate shop sales is an agent of the shop owner, being the principle.

 

If the agent has a free hand to carry out the work of the principle, the said relationship is more in nature of a private contractor, who is hired to carry out work of a specific nature for the principal.

 

Private Contractor vs. Agent

A servant and independent contractor are both employed to do some work of the employer but there is a difference in the legal relationship which the employer has with them. A servant is engaged under a contract ‘of’ services whereas an independent contractor is engaged under a contract ‘for’ services. The liability of the employer for the wrongs committed by his servant is more onerous than his liability in respect of wrongs committed by an independent contractor.

A private contractor is a specialized person whose services are rendered to carry out a designated and/or specific work.

For example, a plumber is a private contractor who is hired to repair plumbing issues, which once complete the transaction between the principal and the contractor ends.  

Similarly, a person installing dish TV in homes would be considered to be a private contractor rather than being an agent of the principal. He would indeed be an agent of the dish provider but in capacity of the person availing dish TV services, he would be deemed to be a private contractor as he is hired to carry out a specific/specialized service.

 

There could be exceptional cases where a private contractor is not individually liable instead the master/principal is liable for his tortuous acts. It is so possible when the principal exercise his control over the private contractor and issues directions of working.

Example could be where, ‘A’ hires a private contractor to construct a water tank in A’s property. The private contractor suggests him to use quality cement otherwise that tank when used more than 80% of its capacity shall breakdown. ‘A’ is adamant on using an inferior quality cement as he is unwilling to spend on good quality cement. Now, after construction of the water tank, it breaks flooding A’s neighbour’s property, B. B sues A for compensation. In this case the private contractor cannot be held liable as he had warned A in advance.

Alternatively, if A would have given free-hand to the private contractor to construct a water tank, setting no restriction of materials to be used and giving no instructions whatsoever to him; subsequently on breakdown of the water tank, the private contractor would have been individually liable for the tort of trespass, on account of flooding of B’s property.

 

Comparative Study Chart

Master-Servant

Principle Agent

Private Contractor

Liability requires ‘hire and fire’ test, concrete direction and control test and being within course of employment acting negligently.

Liability requires direction and control test within course of employment. Liability abets with loss of control over the agent

Liability cannot be sustained.

(liability could only be sustained in exceptional cases where the master/principal exercises control over the private contractor)

Eg. Domestic help, orderlies, private home employment etc.

Eg. Salesman/sales-persons, receptionist, bank/company employees etc.

Eg. plumber, carpenter, car mechanics etc. 

 

(b)      Course of Employment: the second element is the agent being in course of employment. Likewise the master-servant relationship the agent working beyond the scope of employment cannot render the principal responsible for the acts of the agent.

The agent could perform the act negligently, or fail to follow the instruction/directions issued by the principal but this would not take him out of the course of employment. He is acting negligently committing a tort, but is still within the course of employment, hence making the principal liable.

The agent could be said to be out of course of employment when he goes beyond the authorised act, granted by the principal.

 

For example, ‘A’ hires Shomu as a driver in his law firm. He directs him to to go to B’s chamber and procure a case file. On his way back he sees his friend Chomu and offers him a lift. Unfortunately, the car meets with an accident. Chomu sues A for compensation. In this situation A will be liable to compensate Chomu as Shomu was an agent (driver) of A and he performed his authorised act incorrectly, while still being in course of employment. That is, authorised act (driver; driving) was to visit B’s chamber, pick the file and be back straight to office; which he performed negligently by giving a lift to Chomu.

Alternatively, if Shomu now gives a lift to Chomu and also allows Chomu to drive the car, it would be gross deviation from the authorised act (authorised act was driving, as he was hired as a driver). Now, if the car driven by Chomu meets with an accident, A is not liable to pay any compensation to Chomu, as his agent had gone outside the course of employment and not merely deviated from the control and directions issued by A.

 

[3] Partnership Firm / Company / Corporations

A partnership firm is vicarious liable for the tortuous acts of its partners during the course of employment. Any act performed by the partners in private capacity or personal gain would render him outside the course of employment and the partner shall be individually liable for his actions.

Perhaps, the true test is any act performed by the partners of a firm for the betterment and advancement of the business of the firm, if turns tortuous would set the liability vicariously on the firm and the firm shall be liable to compensate the plaintiff/victim for the tortuous act of its partner.

Not only the partners but subsequent employees and other workers in a partnership firm, company or a corporation can be surpassed under the concept of vicarious liability.

 

For example, ‘R’ a director in company ‘X’ negotiates a deal with company ‘Y’ over delivery of 100 tonnes of smelted steel. R mistakenly send the wrong delivery address, which is the address of a private property owned by ‘S’. Y delivers the package trespassing the property of ‘S’. S sues R for trespass. X shall compensate S for the negligence of R as the negligence was part of the conduct during the course of business.

Note:- the company can later pass a resolution (via their board of directors) to claim the compensation amount from R by recovering it from his salary. This is the correct position in relation to principles followed under vicarious liability in common law.   

 

[4] Statutory Authority

As covered, statute means a legislation passed by the parliament or a law framed under the provisions of the constitution if India. Authority is a person exercising power under said provisions of law. If any tortuous act is committed by a person acting under authority bestowed upon him via a statute i.e. legislation or in law and such authority while discharging his duty and functioning in public interest, commits a tort, the government shall be responsible to make compensate.

 

In most cases government servants and bodies have immense immunity from tortuous acts but only when they commit it in greater public interest. Like, building a new road could cause nuisance to many, but no one can claim it to be a tortuous activity because it is so being done for public good. Unlikely, while discharging a government function, a state or central, government employee commits a tort by damaging a wall in a private property, then the same immunity cannot be availed. The government will then have to compensate the private property owner discharging the tortuous liability of the employee.

Note:- the state/central government can later recover the compensation amount from the salary of the employee by passing a subsequent government order.

Hence, a statutory authority can be held vicariously liable for the tort(s) committed by its servants.

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NUISANCE

The unreasonable, unwarranted and/or unlawful use of property, which causes inconvenience or damage to others, either to individuals and/or to the general public. Nuisances can include noxious smells, noise, burning, misdirection of water on to other’s property, illegal gambling, unauthorized collections of rusting autos, indecent signs and pictures on businesses, and a host of bothersome activities.

If a nuisance interferes with another person's peaceful and lawful use of property, it may be the basis for a civil suit for damages; and/or an injunction ordering the person to stop temporarily; or entity causing the nuisance to desist(stop); or limit the activity, such as closing down an activity in the evening.

Simply, nuisance is a person or thing causing inconvenience or annoyance, where an act which is harmful or offensive to the public or a member of it and for which there is a legal remedy. Hence, the essentials to nuisance are;

(a) There has to be an unreasonable or an unlawful interference by the defendant,

(b) Over a person’s legal right, where a person who is devoid of holding a right cannot claim under nuisance or tort as a whole, and

(c) In connection with a property which is movable or immovable.

Generally, nuisance is of two kinds;

[1] Private Nuisance, and

[2] Public Nuisance.

Private Nuisance

Public Nuisance

Unlawful interference with an individual’s property- movable or immovable.

Unlawful interference in public peace, causing nuisance to class or a group in society.

Remedy is civil in nature.

Remedy is criminal in nature. Cognizable offence under the Indian Penal Code, 1860.

Claimable by an individual/ victim/ injured party.

Offence against general public (right in rem, prosecuted by the state [government])

Claimable in cases of Special Nuisance/ Specific Nuisance.

 

The English common law distinguishes between public and private nuisance.

Private nuisance, in its pure form, happens when someone interferes with another's use or enjoyment of land. This is a simple matter of balance, depending on the locality. A plaintiff must own or have an interest in the land in question, thus depriving the visitor of a right in private nuisance for personal injury.

A public nuisance is one that affects a particular class or group of citizens.

Section 268 of the Indian Penal Code, 1860

Section 268. Public nuisance.—A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.

Special or Specific Nuisance

A claim for compensation under Public Nuisance can only me made when a case of Special/Specific nuisance is made out. Apart from the general nuisance caused to the public at large, a person seeking compensation has to show that he has been caused damage more than anyone else.

The conduct must be such as materially affects the complainer. No one can complain of a public nuisance if he is not himself able to allege and prove some ‘special’ or particular damage over and above that of the ordinary public, which is caused to everyone in general. Thus, a hole in the road would not be actionable under this head but it would become so if someone fell into it and broke a leg, where the victim can claim public nuisance as he has a special/specific case (only he fell in the hole). As far as right of the general public is concerned, a complaint can be made by anyone and the state shall prosecute the tort doer on behalf of its citizens, but no such person can claim compensation for it.

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MALICIOUS PROSECUTION

Malicious Prosecution is a tort where the plaintiff (victim) claims compensation from the defendant (tortdoer) for illegally prosecuting the victim (filing a case against him) just for harassment. It is against a prosecution where the plaintiff was innocent and had committed no offence or wrong, but was a mere victim to conspiracy. In malicious prosecution it is important that the court(s) acquits the victim, otherwise a case of malicious prosecution would not be maintainable. In such cases the injury is in nature of loss of reputation, mental harassment and loss of funds in litigation.

For example, A and B are arch rivals having grocery shops adjacent to each other. B in order to disturb A’s harmony and harass him, maliciously gets a fraudulent F.I.R. registered against A, accusing him of theft of Rs. 20,000/-. The trial is conducted and the courts acquit A, holding him not guilty. Now, in the given facts and circumstances A is in good ground to successfully sue B for malicious prosecution as B has intentionally prosecuted A for mere harassment. This is the concept of malicious prosecution.    

Malice means bad intention and prosecution is commencement of a legal proceeding, being civil or criminal. This tort is basically to keep check on abuse of legal process.

Note:-

1.    Under civil litigation the prosecution is said to have begun is when the case is admitted by a judge/presiding officer.

2.    Under criminal litigation the prosecution is said to have begun once the F.I.R. (First Information Report) is lodged with the police. A mere police complaint cannot be said to have initiated criminal proceedings.

Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include

(1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is,

(2) brought without probable cause and

(3) dismissed in favor of the victim of the malicious prosecution.

In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings.

Section 211 of the Indian Penal Code, 1860

Section 211. False charge of offence made with intent to injure.—Whoev­er, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Malice & Lack of Cause

In cases where there is lack of malice, a case of malicious prosecution is not sustainable. Any person who initiates prosecution in good faith, believing that charges against a person to be true is devoid of malice and cannot be prosecuted under malicious prosecution.

The defendant has to show a probable cause for prosecution in the first case, which if established would fail the case of malicious prosecution.

For example, in the above case where A and B are arch rivals having grocery shops adjacent to each other. In B’s shop there is a theft committed of Rs. 20,000/-. B sincerely believes that A has his hands behind the theft as A knew about the location of the safekeeping and in all probability of the enmity shared between them A is the mastermind behind the offence. B registers a F.I.R. with the police accusing A of theft of Rs. 20,000/-. The courts acquit A and subsequently A brings a suit of malicious prosecution against B. In this set of facts and circumstances, B would not be liable as he;

a.    Did not have any malice in prosecuting A; and

b.    In all probability B believed that A has given note to the theft. 

Acquittal under Malicious Prosecution

Acquittal is freeing someone of a (criminal) charge, by verdict of declaring him non-guilty. In cases of malicious prosecution the victim prosecuting must have himself been acquitted in the case, against which he is now prosecuting under malicious prosecution. Acquittal is a preliminary essential to proceed under tort of malicious prosecution. Under no exceptional circumstance, a case of malicious prosecution can be sustained where the victim is held guilty by a court of law.

For example, A and B are fighting a family property dispute. B in vain, maliciously prosecutes A under a charge of sedition. During the trial the court finds A guilty of sedition and sentences him 14 years of imprisonment. When A comes out of jail, he prosecutes B for malicious prosecution. Even though B prosecuted A maliciously, but the court(s) held him guilty of the alleged offence; hence, A cannot maintain the case of malicious prosecution against B.

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NEGLIGENCE

Negligence is breach of a duty of care which results in damage. It is a conduct that falls below the standards of behaviour established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

For example, while driving a car, Pappu observes that the brakes have failed; as a result of which his car meets with an accident. Now the question is can Pappu claim the defence of inevitable accident, as he could not foresee the brakes failing? The answer would be in the negative because it was Pappu’s negligence as he failed to maintain his car properly as a result of which the brakes failed and resulted into an accident.    

The test of negligence is strict application of prudence and reasonable behaviour, and the following essentials are required to be fulfilled;

a)    a plaintiff must prove that the defendant had a duty to the plaintiff,

b)    the defendant breached that duty

c)     by failing to conform to the required standard of conduct,

d)    the defendant's negligent conduct was the cause of the harm to the plaintiff, and

e)     the plaintiff was, in fact, harmed or damaged.

On fulfilment of all the above considerations the tort of negligence can be successfully charged.

Section 304A under the Indian Penal Code, 1860

(Criminal negligence under IPC)

Section 304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Emergencies

The law recognizes that even a reasonable person can make errors in judgment in emergency situations. Therefore, a person's conduct in an emergency is evaluated in light of whether it was a reasonable response under the circumstances, even though, in hindsight, another course of action might have avoided the injury.

Skilled Workers/ Professionals/ Specialists

Skilled workers and professionals are expected to deliver greater responsibility and similarly the test of negligence is even more strict. If a person engages in an activity requiring special skills, education, training, or experience, such as piloting an airplane, the standard by which his conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity. In other words, the hypothetical reasonable person is a skilled, competent, and experienced person who engages in the same activity. 

Often persons practicing these special skills must be licensed, such as physicians, lawyers, architects, barbers, pilots, and drivers. Anyone who performs these special skills, whether qualified or not, is held to the standards of conduct of those properly qualified to do so, because the public relies on the special expertise of those who engage in such activities. Thus, an unlicensed driver who takes his friends for a joyride is held to the standard of conduct of an experienced, licensed driver.

The law does not make a special allowance for beginners with regard to special skills. The learner, beginner, or trainee in a special skill is held to the standard of conduct of persons who are reasonably skilled and experienced in the activity. Sometimes the beginner is held to a standard he cannot meet. 

For example, a first-time driver clearly does not possess the experience and skill of an experienced driver. Although it may seem unfair to hold the beginner to the standards of the more experienced person, this standard protects the general public from the risk of a beginner's lack of competence, because the community is usually defenseless to guard against such risks.

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CONTRIBUTORY NEGLIGENCE

Contributory Negligence is a concept under common law that if a person was injured due to his own negligence; then his own negligence "contributed" to the accident. The injured party would not be entitled to collect any damages (compensation) from the other party who supposedly caused the accident.

Contributory negligence in common-law jurisdictions is generally a defense to a claim based on negligence, an action in tort. This principle is relevant to the determination of liability and is applicable when plaintiffs/claimants have, through their own negligence, contributed to the harm they suffered. It can also be applied by the court in a tort matter irrespective of whether it was pleaded as a defense.

In simple words, contributory negligence is when you yourself contribute to the injury sustained by you.

Under this rule, a badly injured person who was only slightly negligent may not succeed in court against a very negligent defendant.

For example, if Jai is driving drunk and over-speeding. Alternatively, Anita is driving at 30 km/hr in the opposite lane six inches over the centre-line marked which divides the two sides of the road. When Jai and Anita cross they meet with a fatal accident. In a claim being made by Anita, Jai can take the defence of contributory negligence as even though Jai was drunk driving but Anita highly contributed to her own injury by driving outside her permitted driving lane.

In cases of contributory negligence, damages/compensation is either;

1.    reduced to the extent of contributed damage (by the plaintiff), or

2.    the liability of the defendant is completely set-off, discharging him of all tortuous liabilities.

For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Since the pedestrian has also contributed to the accident, they may be barred from complete and full recovery of damages from the driver (or their insurer) because the accident was less likely to occur if it hadn't been for their failure to keep a proper lookout.

Comparative Negligence

It is a rule under tort law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident.

For a simple example, Emad, the driver of one automobile, is speeding and Ruby, the driver of an oncoming car, has failed to signal (indicate) and starts to turn left, incorrectly judging Emad's speed. A crash ensues in which Ruby is hurt. Ruby's damage recovery will be reduced by the percentage her failure to judge Emad's speed contributed to or caused the accident.

Most cases are not as simple, and the formulas to figure out, attribute and compare negligence often make assessment of damages problematic, difficult, and possibly totally subjective.

Composite negligence

Under composite negligence it was laid down that it refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers.

For example, if ‘A’ hires a taxi being driven by driver ‘X’, who is driving rashly at 120 km/hr on a highway. The highway is being repaired by a contractor ‘Y’ who has left a dig wide open without any warning signs or alerts. X rams the car into the dig. A sustains injuries due to the negligence of both the X and Y.

In such a case X and Y are compositely liable to A for damages. 

Comparative Study Chart

Contributory Negligence

Composite Negligence

Contributing to one’s own injury

Two or more persons contributing to one injury

Liability of defendant reduced or completely discharged

All persons are equally liable under negligence

Waving your hand from a rashly driven bus window without taking heed of oncoming traffic.

If injured, it is self contributed.

Two engineers stationed to operate a tram collectively. The tram meets an accident, setting equal liability under negligence on both the engineers.

 

Doctrine of Last Opportunity

Also called the doctrine of ‘last clear chance’; is a doctrine in the law of torts that is employed in contributory negligence jurisdictions. Under this doctrine, a negligent plaintiff can nonetheless recover if he is able to show that the defendant had the last opportunity to avoid the accident. Meaning the last person who could have avoided the accident (negligent act); if he so acting prudent would have evaded the tortuous event.

Most commonly applied to auto accidents, a typical case of last clear chance would be when one driver drifts over the center line, and this action was noted by an on-coming driver who proceeds without taking simple evasive action, crashes into the first driver, and is thus liable for the injuries to the first driver who was over the line.

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DOCTRINE OF RES IPSA LOQUITUR

In the common law of torts, res ipsa loquitur in Latin means "the thing speaks for itself" is a doctrine that infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved. Meaning thereby, that the facts and circumstances of the case; on the face of it reflect the offender who has committed that tort.

Although modern formulations differ by jurisdiction, common law originally stated that the accident must satisfy the necessary elements of negligence: duty, breach of duty, causation, and injury.

In res ipsa loquitur, the elements of duty of care, breach and causation are inferred from an injury that does not ordinarily occur without negligence.

For example, if X is an accountant in a firm having access to the safe in the office. The safe has only one key. On the occasion of theft from the safe, there remains no iota of doubt that the theft has been committed by X. This even though being a simple example explains the concept of res ipsa loquitur in detail.

Another example could be where X is passing a corridor and a gunny bag falls on his head, causing his injury of the neck. There was Y who was loading gunny bags on the first floor of the corridor where X was passing from. Under the above said doctrine Y is liable to compensate X for damages.

The essential ingredients to the said doctrine are listed as below;

1.    The injury is of the kind that does not ordinarily occur without negligence.

2.    The injury is caused by an agency or instrumentality within the exclusive control of the defendant.

3.    The injury-causing accident is not by any voluntary action or contribution on the part of the plaintiff.

4.    The defendant's non-negligent explanation does not completely explain plaintiff’s injury.

Prima Facie

Res ipsa loquitur is often confused with prima facie, which means ‘at first sight’, the common law doctrine that a party must show some minimum amount of evidence before a trial is worthwhile.

The difference between the two is that prima facie is a term meaning there is enough evidence for there to be a case to answer. Res ipsa loquitur means that because the facts are so obvious, a party need not explain any more.

For example, there is a prima facie case that the defendant is liable. They controlled the pump. The pump was left on and flooded the plaintiff's house. The plaintiff was away and had left the house in the control of the defendant is a case of res ipsa loquitur.

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TRESPASS TO PERSONS

Brief Introduction to Trespass

Trespass is an area of tort law (or criminal law) broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land. Trespass to the person historically under English law involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming.

Trespass to Chattels: Trespass to chattels is a tort whereby the infringing party has intentionally or negligently interfered with another person's lawful possession of a chattel i.e. movable personal property.

Trespass to chattels, also known as trespass to goods or trespass to personal property, is defined as an intentional interference with the possession of personal property proximately causing injury. While originally a remedy for the asportation of personal property, the tort grew to incorporate any interference with the personal property of another also.

Trespass to Land:Trespass to land is today the tort most commonly associated with the term trespass; it takes the form of wrongful interference with one's possessory rights in immovable property. Generally, it is not necessary to prove harm to a possessor's (of land) legally protected interest; liability for unintentional trespass varies by jurisdiction.

At common law, every unauthorized entry upon the soil of another is a trespass; however, under the tort scheme established by the practical tortuous principles, liability for unintentional intrusions arises only under circumstances evincing negligence or where the intrusion involved a highly dangerous activity.

Trespass to Persons: Trespass to the person means a direct or an intentional interference with a person's body or liberty. It is the category of tort that deals with threat of or actual use of unlawful force against the body of a person. They are essentially of the following three types;

1.    Assault

2.    Battery

3.    False Imprisonment

Their common element is that the wrong must be committed by a ‘direct means’. Any direct invasion of a protected interest from a positive act was actionable subject to justification. If the invasion was indirect, though foreseeable, or if the invasion was from an omission as distinguished from a positive act, there could be no liability in trespass though the wrong-doer might have been liable in some other form of action.

ASSAULT

Assault is reasonable apprehension of infliction of (criminal) force which is likely to result into physical injury to a person.

For example, A points a loaded gun onto B. A is guilty of assault, as B is in apprehension of infliction of a physical injury and in under threat thereof.

Alternatively, if A is pointing a loaded gun onto B and B is unaware of the fact that it is loaded. Later, when B has knowledge that the gun pointed by A was loaded; now B cannot claim assault as at the given point of circumstance B was not under mental apprehension of injury.  

Under the statutes of various common law jurisdictions, assault is both a crime and a tort. Generally, a person commits criminal assault if he purposely, knowingly, or recklessly inflicts bodily injury upon another; if he negligently inflicts bodily injury upon another by means of dangerous weapon; or if through physical menace, he places another in fear of imminent serious bodily injury (practical assault). A person commits ‘tortuous assault’ when he engages in any act of such a nature as to excite an apprehension of battery/bodily injury.

Essentials for assault;

a)    Presence of reasonable qualified apprehension and not mere presumption;

b)    of bodily hurt or injury, which may extend to further grevious injury or death;

c)     resulting into legal damage or physical injury.

Where on consideration of the above three essentials shall constitute tort of assault.

Section 351 of the Indian Penal Code, 1860

Section 351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or prepa­ration will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

Explanation.—Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Illustrations;

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z, A has committed an assault.

(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault upon Z.

(c) A takes up a stick, saying to Z, “I will give you a beating”. Here, though the words used by A could in no case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture ex­plained by the words may amount to an assault.

BATTERY

Battery is actual use of unlawful force against a person. It is any intentional (for criminal battery) or unpermitted contact (tortuous offence) with the plaintiff's person or anything attached to it and practically identified with it. In infliction of force may not always be direct. The force could be an indirect application, like spitting on a person’s face to express anger, will qualify to be tortuous battery.

Essentials to battery;

(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

(b) contact is not consented to by the other or the other's consent thereto is procured by fraud or duress, and

(c) the contact is not otherwise privileged.

One example from school day’s pranks; if one intentionally pulls out a chair on which a person is going to sit and the person falls on the ground. Till the person is in the air, it is assault and the moment the person hits the ground the assault turns into battery.

Acts that constitute battery could include:

1.    playing a joke on a person, where the "punchline" involves offensive contact

2.    performing surgery on the wrong area of a person's body

3.    throwing an object that strikes a person, and

4.    poisoning a person's drink.

Examples of acts that do not constitute a battery include:

1.    tapping a person on the shoulder to ask a question, and

2.    injuries that occur in the normal course of a sport (since, by agreeing to play the sport, the participant has consented to contact that is common in the game)

Under the Indian legislation the term battery is interpreted as criminal force. The relevant section is deposed as below.

Section 350 under the Indian Penal Code

Section 350. Criminal force.—Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

Civil Versus Criminal "Assault" and "Battery"

As mentioned above, assault and battery can give rise to cases in both civil and criminal courts.

In civil lawsuits, assault and battery are considered intentional torts, meaning the defendant meant to take the action that led to the harm suffered by the plaintiff. The plaintiff in a civil case must only prove by a preponderance of evidence that the defendant is liable for damages caused by assault/battery. And if the plaintiff is successful, he or she may recover damages as monetary compensation for physical and emotional harm, lost income, and other losses arising from the incident.

In a criminal assault or battery case, the state government brings formal charges against the defendant, and tries to prove beyond a reasonable doubt, which is a tougher burden of proof than the one that must be met in civil cases, that he or she committed the assault/battery. The person who was harmed might be called as a witness, but the action is brought by the state where the alleged crime occurred. If the defendant is found guilty, he or she will be subject to a punishment usually as per the Indian Penal Code including imposition of fines.

FALSE IMPRISONMENT

False imprisonment is total restraint of a person, ceasing his capacity and capability to move in any direction, he or she so desires, unlawfully. It is defined as unlawful obstruction or deprivation of freedom from restraint of movement.

For example, if A is obstructed by B from crossing a bridge, which is the only way to his house. Then, B is said to falsely imprison A, as he is obstructed from a desired movement.

Another example would be when B in order to play a prank on A, tells A to not exit the society building as a bomb squad is in process of diffusing a bomb on the ground floor. A therefore misses an important meeting at his office and suffers a loss of contractual opportunity. A can successfully sue B for compensation under false imprisonment. 

Essentials to false imprisonment are laid down as follows;

a)    The defendant confines the plaintiff, (if so done intentionally then it shall deem to be a crime)

b)    The plaintiff is conscious of the confinement and has no alternative to escape the premises,

c)     The plaintiff does not consent to the confinement (completely involuntary),

d)    The confinement was not otherwise privileged (confined unlawfully).

Confinement

The plaintiff must be completely restrained from movement, where any available escape route will fail the tort commission of false imprisonment. If A is locked in a room by B and the room has a glass window which can be broken by A. A cannot be said to have falsely imprisoned by B, as he could have broken the glass window and escaped the room.

Knowledge of Confinement or Restraint

The plaintiff must have knowledge of confinement. If A is sleeping in a room and B locks the room, leaving no escape route. Later, B opens the room before A is awake. B cannot be said to have committed false imprisonment as A never had the knowledge of confinement. Hence, a strict application of knowledge is expected in cases of false imprisonment.

Confinement must be Unlawful

If the confinement or restraint so made can be justified, then the tort of false imprisonment is not made out. If A suspects a thief in his house and locks a person in a room in his house until the police arrives. A is not liable under tort of false imprisonment.

Likewise, A has a lunatic son B, who occasionally suffers from fits when B gets violent and starts injuring himself. In such a case if A ties up B with a rope and restrains him from any movement, A is not liable under false imprisonment.

Unlikely, when A locks his son Z in the bathroom for not studying and scoring good marks in his examination. A is said to have falsely imprisoned Z.

False imprisonment under the Indian Penal Code, 1860

(Criminal Acts- Wrongful Restraint and Confinement)

Section 339. Wrongful restraint.—Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

(Exception) —The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.

Illustration: A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z.

 

Section 340. Wrongful confinement -Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.

Illustrations:

(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.

(b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z.

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DEFAMATION

Defamation is any false communication, either written or spoken, that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

If the false communication if is so intentional, then it would constitute a crime, otherwise civil.

There is always a delicate balance between one person's right to freedom of speech and another's right to protect their good name. It is often difficult to know which personal remarks are proper and which run afoul of defamation law.

The term defamation is an all-encompassing term that covers any statement that hurts someone's reputation. If the statement is made in writing and published, the defamation is called ‘libel’. If the hurtful statement is spoken, the statement is ‘slander’. Defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law for compensation.

Defamation is of the following three kinds;

1.    Libel

2.    Slander

3.    Innuendo

Libel:a defamatory statement that is in permanent form is termed as Libel. To publish in print which includes pictures, writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander which is oral defamation. It is a tort making the person or entity like a newspaper, magazine or political organization; open to a lawsuit for damages by the person who can prove the statement made was a lie.

Slander:a defamatory statement that is orally made, being temporary in nature. Some statements such as an untrue accusation of having committed a crime, having a loathsome disease, or being unable to perform one's occupation are treated as slander per se since the harm and malice are obvious, and therefore usually result in general and even punitive damage recovery by the person harmed.

Innuendo:derived from the Latin term ‘innuere’, meaning "to nod toward." In law it means an indirect hint or insult. Innuendo is used in/for defamation (libel or slander), usually to show that the defendant while making his statement indirectly insulted or hampered the repute of the victim. The statements so made are not always defamatory per se, but have a latent or hidden meaning that is defamatory.

Example: "the new director of the company is a very educated man and will take this company to new heights", says the out-going director, knowing the new director is only 12th standard pass and every member of the board starts laughing. The statement is per se not defamatory, but its context makes it defamatory under innuendo. 

Essentials to constitute defamation;

a)    Injurious statement (Libel or Slander) made by the defendant, unlawful and without justification,

b)    Causing loss of reputation or monetary damage (real damage or intangible damage), and

c)     The defamatory content is published.

Injurious Statements

The defamatory statement has to be injurious in eyes of reasonable and prudent men. The statement shall have the capacity to cause loss of reputation or a physical loss as an outcome (covered under the heading of damages below). Thereby, meaning if A walks into a kinder garden class and makes demeaning statements about a local politician. The statements are not said to be injurious, as there is no qualified recipient, who shall interpret such slander.

Another example would be; A, B and C are travelling in a train with a first class ticket. Inside the train compartment, A’s small girl, aged 7, accuses B, “this uncle has stolen my lollypop, I cannot find it any more”. In fact, A (father) had hidden the candy. As learnt, a child is equally responsible under tort law. In such a case, can B sue the minor girl through A for compensation under defamation? No, because even though the statements are defamatory per se (accusation of theft), it being so made in a situation where C will not think demeaning of B. Hence, the statement is not an injurious statement.   

Publication

Publication of defamatory/injurious statement means that a person apart, from the one who is defaming and the one who is being defamed, gets to know and becomes aware of the statement so made. Without publication there can be ‘NO’ defamation.

Affirmative example would be, if P writes a letter to Q, and the letter contains defamatory statements. When Q opens the cover and reads the letter, it is not defamation. Someone apart from P and Q needs to know about the contents of the letter for defamation to happen.

Second, in the same example, if Q shows that letter to his friend, R; it would still not amount to defamation as the publication is done by Q and not P. Hence, publication is to be done at the hands of the person making the defamatory gesture. 

Alternatively, if P is making derogatory statements about Q in a room where only P and Q are present, it is not defamation. But if a passerby R overhears the conversation between P and Q, then publication is said to have been done. As knowledge of publication is not an essential, but only publication in what is considered.

Assuming A writes a letter to B in Urdu, and he knows B cannot read Urdu. A reasonable assumption can be made out that B will take help of a linguist to interpret the letter. If B asks C to read and interpret the letter; publication has been done at the oust of A, making him liable under tort of defamation. If A has written the letter in English, then assumable situation would be that B is qualified to read the letter and no defamation has taken place even if B shows the letter to C (only if A specifically knew that B cannot read English, then it were to be a defamatory letter, incubating liability).

Damage under Defamation

Damage is the legal injury caused to the plaintiff, which in case of defamation can be two fold; real or tangible damage and intangible damage.

Real damage is when due to the defamation caused to the plaintiff, there is a subsequent loss which is quantifiable. For example, if Lalu owns a sweet shop and his rival is Sallu, accuses Lalu of using inferior quality milk in his sweets. Due to such a statement of his, Lalu loses his customers and his sales reduce by 40% (quantifiable damage). Such damage is quantifiable and an apparent loss is evident in the given circumstance. This damage is called real or tangible damage.

In-tangible damage is when the damage cannot be quantified and is mere loss of reputation. For example, a mathematics teacher/professor, Mr. Santosh is commented upon by the headmaster of the school, “26 students have failed in mathematics in the ISC board examination; hence we have fired Mr. Santosh.” Where in fact only 2 students had failed and Mr. Santosh was fired due to a personal enmity with the headmaster. The reputation of Mr. Santosh is lost between reasonable men of society and school students, making the headmaster liable under defamation. Such damage which is not quantifiable is intangible damage, being mere loss of figure and repute.

Likewise, if Mr. Santosh was running home tuitions and due to such a statement from the headmaster all the students leave his home classes, then the damage is tangible and can be calculated as to what exact loss in terms of money was suffered by Mr. Santosh. For example, 12 students with a tuition fees of Rs. 1000/- each, makes a quantifiable damage of Rs. 12,000/- per month. 

Study Chart- Real vs. Intangible damage

Real/Tangible Damage

In-tangible Damage

Cannot be quantified or calculated in terms of money (for monetary compensation)

Can be quantified or calculated in terms of money (for monetary compensation)

Loss of repute and goodwill

Subsequent monetary losses due to loss of repute and good will

Defaming a politician

Defaming services of a restaurant (loss of customers)

 

Defenses to Defamation

Defence like general defenses under tort of defamation has to stand a strict test and the defamatory content so made has to fight a very thin line between liability and no charge. The following are the defenses to tort of defamation;

[1] Truth

[2] Fair comment / Opinion / Criticism

[3] Privileged communications

Truth

Truth is a pure defence under tort of defamation. If a person is stating the truth, then no case of defamation can be met out against the defendant. Truth also has a form, and has to be represented or spoken in a certain qualified manner and cannot be a victim of exaggeration. For example, A calls B a thief and a perpetual offender, which is defamatory per se. But basing such a statement on an order of a criminal court will be telling the truth, as the court has declared him to be so.

If the truth is diluted by gossip and mouth to mouth conversations, they can well be under the garb of tort of defamation. For example, a well known politician is charged of murder. A news channel in their breaking news declared the politician corrupt and a criminal, without waiting for the courts to give a final judgment, will hold the news channel guilty for defamation. Truth has to be presented as truth. Form the above example, the news channel could have flashed; “Mr. ‘X’ has been summoned and charge-sheeted for Murder”, which indeed is justifiable as stating the truth.     

Fair Comment / Opinion / Criticism

Making a fair comment or criticizing a person has to be done with utmost care and concern. A fair comment or criticism has to based upon certain fall of events, and cannot be a mere statement from one’s own figment of imagination. For example, A newspaper columnist writes about an up-coming politician, “it is not hidden that Sri Rahil Gupta is a failed leader, as everyone knows that the party he is leading will soon be a chapter in history books.” Such a statement is defamatory and the writer is strictly liable.

On the other hand if the write would have made his opinion, “three month before; Mr. Rahil Gupta was charged with grave charges of corruption with respect to his ministerial department by the Delhi police. His two new projects as part of government initiative to provide housing for the poor have been stayed by the Chandigadh Court. Hence, I feel the party has a gloomy future under the leadership of Mr. Rahil Gupta.” Such an article will be a fair comment and representation of his opinion which is based on concrete facts. Mere open allegations which are baseless and have no connection with reality are not a defence under tort of defamation.

Privileged communications

Witnessing Privilege: In order for a statement to be defamatory, it must be unprivileged. Legislatively and principally you cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.

Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory.

Parliamentary Privilege: Likewise, our parliament is immune from defamation suits resulting from statements made in legislative capacity or in official materials. These are essential privileges as to enable robust functioning of out legislative and executive machinery.

Judicial Privilege: For execution of judicial function, judges and presiding officers can also extend their capacity to make injurious statements to administer justice. The line cannot be extended like it was so done in the latest case of Retd. Justice C. S. Karnan of the Kolkata High Court. Due to lack of material and evidence, his statements can well be termed as defamatory, lowering the image and repute of the Indian judiciary. Retd. Justice Karnan while being in his official capacity (when as sitting judge) can well be said to have made defamatory statements against sitting judges. 

Domestic Privileges: The relations which are domestic in nature including matrimonial couple, friends, close relatives and healthy comments between acknowledged individuals may be safe guarded as a privileged defence under tort of defamation. For example, if a husband complains and makes defamatory statement about his boss to his wife, the said communication is not said to have been published and the husband is not liable for defamation. If subsequently, the wife reiterated the statements made by his husband in a social gathering. The wife may be held liable for defamation.

A healthy joke shared between friends in a college canteen is exempted under liability of tort of defamation.

Educational Privileges: A statement made be a teacher or a professor to a student in class or in a manner which is a corrective step for betterment of the student will not be deemed to be defamatory. Even so for educational purpose, in a class, for example sake a defamatory statement is made about a known luminary, will not be deemed to be a defamatory statement, unless made with an intention to defame and not for educational purpose.

Section 499 under the Indian Penal Code, 1860

(Criminal Defamation)

Section 499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4.—No imputation is said to harm a person’s reputa­tion, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgrace­ful.

Illustrations:

(a) A says—“Z is an honest man; he never stole B’s watch”; in­tending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it fall within one of the exceptions.

(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that Z stole B’s watch. This is defama­tion unless it fall within one of the exceptions.

Section 500 under the Indian Penal Code, 1860

Section 500. Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

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STRICT & ABSOLUTE LIABILITY

Liability means the state of being legally responsible for something.

Definition: The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape - Blackburn, J.

Deciding liability is the end goal of putting a tortuous act to rest. Apart from the basic meaning and contemplation of the word liability, there are two rules which are attached to the same;

[1] The Rule of Strict Liability, and

[2] The Rule of Absolute Liability.

STRICT LIABILITY

If a person brings a dangerous object onto one’s own land for un-natural purpose and that thing escapes causing damage, then that person shall be strictly liable under the Rule of Strict Liability.

The essentials for strict liability require emphasis upon:-

a)    Dangerous Thing: The liability of escape of a thing from a person’s land will arise only when the thing or substance collected is a dangerous thing i.e. a thing which is likely to cause mischief or damage to other people in person or their property on its escape.

b)    Un-natural Purpose: It means the dangerous object naturally does not exist in the manner and form it now does. Like, a scorpion naturally does not exist in research labs. But a dangerous object, scorpion for venom research purpose is brought to a lab, thereby making an un-natural purpose. Something that naturally does not occur in nature. Another example of dams. They do not exist naturally but are manmade.

c)     Escape: The thing that has caused damage or mischief must ‘escape’ from the area under the occupation and control of the defendant. If the plaintiff enters the premise then the rule of strict liability cannot be attracted.

In various torts cases under English law, the ones involving the doctrine of strict liability have held large body of water, gas, electricity, vibrations, yew trees, sewage, flag-pole, explosives, noxious fumes, rusty wires, etc. as dangerous things.

This can be better explained by bringing examples (dangerous objects)-

[1] Short circuiting of an electricity producing machine, causing fire and subsequently injuring a person.

[2] Storage of large quantities of water, which when escapes causing loss of property, incubates strict liability.

[3] Petting dangerous reptiles like snakes, crocodile etc, which when escape injuring a person, sets strict liability.

[4] Experimentation with dangerous chemicals for study purpose, if escape will hold one liable under the said rule of strict liability. 

No Fault Liability

The Strict Liability principle is also called as ‘No Fault Liability’. This is contradictory to the general principle of negligence in torts where a person can be held liable for commission of a tort only when the plaintiff can prove negligence on his part and the defendant himself is unable to disprove it. In the cases that I will now mention, the onus of being negligent can be ignored. In spite of all due care taken by the defendant, he will invariably be held for the consequences of the damages caused to any person outside of the boundary of the defendant’s land by any hazardous thing that he maintained on the same stretch of land i.e. in spite of no intentional or unintentional fault of his, the defendant can be held liable hence, explaining the term ‘No Fault Liability’.

Case Law

Laying of the rule of Strict Liability was in the case of Rylands vs. Fletcher, 1868: The defendant (Fletcher) an owner of a mill in Answorth with an aim to improve water supply for his mill employed independent and efficient engineers for the construction of a reservoir. During their excavation of the ground underneath, they came across some shafts and passages but chose not to block them. Post construction of the reservoir when they filled it with water, all the water flowed through the unblocked old shafts and passages to the plaintiff’s (Rylands) coal mines on the adjoining land and inundated them completely. The engineers kept the defendant in the dark about the occurrence of these incidents. On a suit filed before the court by the plaintiff against the defendant, the court though ruled out negligence on the defendant’s part but held him liable under the rule of Strict Liability. Any amount of carefulness on his part is not going to save him where his liability falls under the scope of ‘No Fault Liability’.

Defenses to Strict Liability

Tortuous acts which fulfill the essentials of the Rule of Strict Liability can plead the following defenses;

[1] Viz Major/Act of God: a tort as a result of an unexpected and unforeseen event, which could not have been reasonably foreseen by use of human foresight and by use of technology, can be exempted under the application of the said rule. ‘A’ constructs a water tank with a capacity of 500 gallons of water in his farmhouse. Due to an earthquake the tank breaks, flooding Z’s farmhouse will fall under the exception to strict liability.

[2] Plaintiff’s own fault: a tortuous act as a result of plaintiff’s own negligence would not be covered the rule of strict liability. Assuming, Hade is a scientist researching on explosive compounds. He sets a personal laboratory at home where he is under possession of licensed hazardous chemicals. A thief breaks into his house and upon exposure to the chemicals in Hade’s lab, he loses his eye sight. In such an event a tort liability will stand discharged due to plaintiff’s own fault.  

[3] Act of Third Party: The defense of act of third party is applicable when an act of a stranger is the reason behind an act of tort. Any person, who is in possession of a dangerous object and the object escapes due to a negligent act of another, can plead the defence. The liability will be set upon the person who was behind the reason of escape of the dangerous object. 

[4] Work of Common Benefit: In a case where the plaintiff and the defendant were both common users of the dangerous object, a case under strict liability cannot be made out. The plaintiff has to be a recipient of benefit, if so the plaintiff cannot sustain a claim. N had installed a heavy duty generator in his flat. Due to often light cuts, M used connection of N’s generator to run his house hold activities. On occasion of a generator blast, M cannot make a claim against N under the rule of strict liability.

[5] Statutory Authority: State bodies established under the laws of India are safe guarded from strict liability. The state authorities can be sued for negligence or be held vicariously liable; if they fulfill the essentials laid under the principles. Concerning strict liability, the rule cannot be tested on them.

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ABSOLUTE LIABILITY

A person who carries out a dangerous activity for profit is responsible for any harm that may follow that activity.

Essentials to Absolute Liability;

a)    Running of a dangerous activity, inherent or apparent,

b)    For profit, which is a essential and the most important requirement, does not include any charitable institution,

c)     That dangerous activity results in escape causing harm as a result of that activity, directly or indirectly,

d)    Holds the defendant liable, where there is no defence or exception that is applicable to the said rule.

If an industry or enterprise is engaged in some inherently dangerous activity from which it is deriving commercial gain (profit) and that activity is capable of causing catastrophic damage then the industry officials are absolutely liable to pay compensation to the aggrieved parties. The industry cannot plead that all safety measures were taken care of by them and that there was negligence on their part.

Applicability of Defence

There is ‘NO’ defence under the principle of absolute liability. They will not be allowed any exceptions neither can they take up any defence like that of ‘Act of God’ or ‘Act of Third Party/Stranger’. There is no single remote exception that is laid down under the said principle; the principle is only applied in the strictest of strict cases.

Examples;

[1] Leakage of a poisonous gas,

[2] Nuclear waste discharge mis-management

[3] Blasts due to negligence or non-negligence in industries operating with dangerous chemicals, minerals, compounds, nuclear substances, explosives etc.

Case Laws

A few cases where Absolute Liability was upheld:-

[1] M.C. Mehta vs. Union of India, A.I.R. 1987 S.C. 1086:-

The Supreme Court of India was dealing with claims of leakage of Oleum gas on the 4th and 6th December,1985 from one of the units of Shriram Foods and Fertilizers Industries, Delhi. Due to this leakage, one advocate and several others had died. An action was brought against the industry through a writ petition under Article 32 of the Indian Constitution by way of a Public Interest Litigation (PIL). The judges in this case refused to follow the Strict Liability Principle set by the English Laws and came up with the Doctrine of Absolute Liability. The court then directed the organizations who had filed the petitions to file suits against the industry in appropriate courts within a span of 2 months to demand compensation on behalf of the aggrieved victims.

 

[2] Bhopal Gas Tragedy

Union Carbide Corporation v. Union of India, (1991) 4 SCC 548:-

This doctrine was upheld in the infamous Bhopal Gas Tragedy which took place between the intervening night of 2nd and 3rd December, 1984. Leakage of methyl-iso-cyanide (MIC) poisonous gas from the Union Carbide Company in Bhopal, Madhya Pradesh led to a major disaster and over three thousand people lost their lives. There was heavy loss to property, flora and fauna. The effects were so grave that children in those areas are born with deformities even today. A case was filed in the American New York District Court as the Union Carbide Company in Bhopal was a branch of the U.S. based Union Carbide Company. The case was dismissed there owing to no jurisdiction. The Government of India enacted the Bhopal Gas Disaster (Processing of Claims) Act, 1985 and sued the company for damages on behalf of the victims. The Court applying the principle of ‘Absolute Liability’ held the company liable and ordered it to pay compensation to the victims.

 

[3] Indian Council for Enviro-legal Action vs. Union of India, AIR 1996 SC 1446:-

A PIL filed under Article 32 of the Indian Constitution voiced protests of the petitioners over the presence of industries that was causing large scale environmental pollution and endangering the lives of the villagers who resided in the vicinity of the industries. It violated their right to life and liberty given under Article 21 of the Indian Constitution as they were unable to live in a healthy environment. The Supreme Court initiated instant action and ordered the Central Government and the Pollution Control Board to constitute strict measures against the said industries. The court upheld the Doctrine of Absolute Liability here stating that the polluted environment must be restored to a pollution free one conducive for healthy living by utilizing anti-pollution scientific appliances. The expenditure so incurred in this process must be paid by the industries even if their properties need to be attached for this purpose. The industries were made absolutely liable for paying monetary damages for restoration of the environment.

Note 1:- Absolute Liability can also be upheld by the courts in case of a single death without any mass destruction of property or pollution of the environment.

Note 2:- This was the advent of the ‘Polluter Pays Principle’ under absolute liability, that the one who pollutes will not only pay compensation but will also have to pay for the pollution done and take steps to restore the environment back to habitable.

[4] Klaus Mittelbachert vs. East India Hotels Ltd., A.I.R 1997 Delhi 201:-

In this case, the plaintiff, a German co-pilot suffered grave injuries after diving into the swimming pool of the five-star restaurant. Upon investigation, it was seen that the pool was defectively designed and had insufficient amount of water as well. The pilot’s injuries left him paralyzed leading to death after 13 years of the accident. The court held that five-star hotels that charge hefty amounts owe a high degree of care to its guests. This was violated by Hotel Oberoi Inter-continental, New Delhi when the defectively designed swimming pool left a man dead. This made the hotel absolutely liable for payment of damages. The hefty amounts taken from the guests by the hotel owners guaranteed them to pay exemplary damages to the deceased or in any such further cases. It was decided that the plaintiff would receive Rs. 50 lakhs for the accident caused.

However, with the death of the plaintiff while the suit was still pending in the court, the cause of action also died and the aforesaid decision was reversed on appeal by the defendant party in the case citation A.I.R, 2002 Delhi 124 D.B.

Comparative Study Chart

Strict Liability

Absolute Liability

Dangerous object brought onto one’s land for un-natural purpose

Dangerous activity for profit

Rule applicable on escape of dangerous object

Rule applicable on direct or indirect commission of tort

Defenses available

No defenses applicable

Poisonous animals, gas cylinder

Explosives, nuclear discharge

 

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