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.
‘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.
‘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,
lower degree of harm (damage caused),
affects an individual’s right only,
only A has a right to claim damages from the watch-maker, and
the dispute can be resolved if the watch-maker pays A for the loss incurred by
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
Z’s action reflects an intention of causing a higher degree of harm,
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),
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
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;
 lower degree of harm
 right in personam, observed to be an
offence against an individual
 only the injured party has a right against
 Objective: to compensate/award damages to
the victim in monetary terms (by payment of sum of money)
higher degree of harm
right in rem, observed to an offence against society
the State takes action against the criminal on behalf of the whole community
Objective: to punish the offender (imprisonment/jail)
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)
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
when a person executes an act which is unlawful oromits to perform a legal duty
is said to commit an act of tort.
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.
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
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.
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
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
Tort = Civil Wrong (Tort) + Criminal Intention (by nature)
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
GENERAL DEFENCES TO TORT
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.
following defences can be legally claimed in order to escape a tortious
 Volenti non fit injuria
 Plaintiff is the wrong doer
 Act of God
 Private Defence
 Inevitable Accident
 Statutory Authority
 Volenti non fit
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.
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.
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
to volenti non fit injuria;
The plaintiff was aware or was reasonably expected to be
aware of the risk he is assenting to, involved in that situation or
That he agreed either by physical evidence of oral or
written statement, or impliedly by conduct to suffer the consequences of his
 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
 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
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
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
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
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
(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.
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
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
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.
 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
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
Essentials to use of Right of Private
(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.
 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
Essentials to defence of inevitable
(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.
 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
(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.
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;
 State or Judicial Authority
 Partnership Firm
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
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.
 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.
 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.
 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)
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
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
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
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.
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.
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.
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.
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.
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;
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;
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.
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.
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.
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
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.
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.
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.
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.
persons including domestic help, personal/home employees, orderlies etc. form
part of a master-servant relationship.
of the concept of Vicarious Liability
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.
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.
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;
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.
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.
salesman hired at a grocery store to facilitate shop sales is an agent of the
shop owner, being the principle.
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.
Contractor vs. Agent
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
private contractor is a specialized person whose services are rendered to carry
out a designated and/or specific work.
example, a plumber is a private contractor who is hired to repair plumbing
issues, which once complete the transaction between the principal and the
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.
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.
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.
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
requires ‘hire and fire’ test, concrete direction and control test and being
within course of employment acting negligently.
requires direction and control test within course of employment. Liability
abets with loss of control over the agent
cannot be sustained.
could only be sustained in exceptional cases where the master/principal
exercises control over the private contractor)
Domestic help, orderlies, private home employment etc.
Salesman/sales-persons, receptionist, bank/company employees etc.
plumber, carpenter, car mechanics etc.
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.
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.
agent could be said to be out of course of employment when he goes beyond the
authorised act, granted by the principal.
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.
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.
Partnership Firm / Company / Corporations
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.
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.
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
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.
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.
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
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.
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;
 Private Nuisance, and
 Public Nuisance.
interference with an individual’s property- movable or immovable.
interference in public peace, causing nuisance to class or a group in
is civil in nature.
is criminal in nature. Cognizable offence under the Indian Penal Code, 1860.
by an individual/ victim/ injured party.
against general public (right in rem, prosecuted by the state
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
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.
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
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.
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
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
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.
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
The test of negligence is strict
application of prudence and reasonable behaviour, and the following essentials
are required to be fulfilled;
plaintiff must prove that the defendant had a duty to the plaintiff,
defendant breached that duty
failing to conform to the required standard of conduct,
defendant's negligent conduct was the cause of the harm to the plaintiff, and
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
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.
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/
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
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.
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
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.
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.
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
to one’s own injury
more persons contributing to one injury
of defendant reduced or completely discharged
are equally liable under negligence
your hand from a rashly driven bus window without taking heed of oncoming
injured, it is self contributed.
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.
DOCTRINE OF RES IPSA
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
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.
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.
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;
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
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
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
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.
(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 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
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
1. playing a joke on a person, where the "punchline" involves
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
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 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
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
d) The confinement was not otherwise privileged (confined
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
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
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.
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
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.
(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.
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
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
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.
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 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
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
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.
be quantified or calculated in terms of money (for monetary compensation)
quantified or calculated in terms of money (for monetary compensation)
repute and goodwill
monetary losses due to loss of repute and good will
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;
 Fair comment / Opinion / Criticism
 Privileged communications
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
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
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.
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
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.
imputation in the form of an alternative or expressed ironically, may amount to
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.
(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
(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
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
STRICT & ABSOLUTE
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;
 The Rule of Strict Liability, and
 The Rule of Absolute 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
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
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
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)-
 Short circuiting of an electricity
producing machine, causing fire and subsequently injuring a person.
 Storage of large quantities of
water, which when escapes causing loss of property, incubates strict liability.
 Petting dangerous reptiles like
snakes, crocodile etc, which when escape injuring a person, sets strict
 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’.
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
Tortuous acts which fulfill the
essentials of the Rule of Strict Liability can plead the following defenses;
 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.
 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
 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.
 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.
 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.
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
 Leakage of a poisonous gas,
 Nuclear waste discharge
 Blasts due to negligence or
non-negligence in industries operating with dangerous chemicals, minerals,
compounds, nuclear substances, explosives etc.
A few cases where Absolute Liability
 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.
 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.
 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
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
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.
 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.
object brought onto one’s land for un-natural purpose
activity for profit
on escape of dangerous object
applicable on direct or indirect commission of tort
animals, gas cylinder