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3 - LAW OF TORTS

24.04.14 [K-103]
Q.1 Definition of Tort and Defences available in Tort. Write each and every one with case
law.

Ans. Literal meaning of Tort – The term ‘Tort’ is the French word. It is derived from the Latin term
‘Tortum’, which means a conduct which is twisted, crooked or wrong causing injury to a person or
persons. In other words, it is a transgression/misbehaviour/wrong doing from the right conduct to the
wrong one. Tort is equivalent to the Roman law term ‘Delict’ and the English word ‘Wrong’. It is
synonym to Hindi word ‘Duskarati’ or ‘Apkaratya’. Thus, Tort is an act or commission done
intentionally or unintentionally which prejudicially affects a person in some legal private right. The
person who commits tort is called a ‘tortfeasor’ or wrongdoer and his misdoing is a ‘tortious act’.
Thus, if A assaults B or damages B’s property without lawful cause or excuse, it is a tort.

Definition or Juristic Meaning of Tort – Although so many attempts have been made by the
jurists to define the term ‘Tort’ yet no scientific or precise definition has emerged so far. Dr.Winfield has
aptly remarked that the moment we attempt to ascertain with precision its scope and nature, we are at
once in the thicket/grove/wood/coppice of difficulties. The reasons for this are that :- [1] The law of tort
is not the product of statute but is based on judicial decisions [2] It has grown up behind a scene of
legal procedure i.e. the remedy for particular injury was provided on the basis of forms of action i.e.
writs. Until recently the issue was not whether the defendant had broken some duty which he owed to
the plaintiff but instead whether the plaintiff had any form of action against the defendant and if so in
what form? [3] A final difficulty is that the law of tort is still in the evolutionary process.

Since the law of tort is not a codified law hence no specific or exact definition of tort can be
given. In spite of the above mentioned difficulties, the various eminent jurists have defined the term
‘Tort’ in a different manner :-

According to Ratan Lal – A tort is a civil wrong independent of contract for which the
appropriate remedy is an action for damages.

According to Dr.Winfield – Tortious liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is redressable by an action for unliquidated
damages.

Acording to Salmond – A tort is a civil wrong for which the remedy is an action for damages
and which is not exclusively the breach of a contract or the breach of a trust, or the breach of other
merely equitable obligation.

Although none of the above mentioned definition contains all the elements necessary to
constitute a tort yet most of the jurists are of the opinion that the definition given by Dr.Winfield is more
appropriate than other jurists.

Essential Elements of Tort – According to Dr.Winfield, there are three main elements of tort i.e.

1] Tortious liability arises from the breach of a duty primarily fixed by law – Dr.Winfield was of the
opinion that tortious liability exist by virtue of law itself and are not dependent upon agreement or
consent of the parties. For example –A person is under a legal duty not to assault or
slander/insult/defame/libel any person, not to trespass upon another’s land because the law of the land
says so and not because one has agreed with another to promise such a duty. Dr.Winfield for this
reason is of the opinion that tortious liability could be distinguished from contractual liability and liability
on bailment, neither of which can exist independently of the parties or at least of the defendant’s
agreement or consent. However, there are certain cases of tortious liability for the existence of which
some prior consent on the part of the defendant is essential e.g. the duty of care owed by the driver of a
car to his gratuitous/unwanted/uncalled for passenger is undoubtedly a tortious one but its existence is
dependent upon drivers agreement to the passenger in his car. Thus, if it is not true that all the tortious
acts are independently of the will of the defendant, it is equally not true that contractual duties are
always dependent upon the will of the defendant.

2] Such primary duty is towards persons generally – The primary duty i.e. duty not to assault, not
to slander, not to trespass on another’s land and so on is towards persons generally the breach of
which imposes a tortious liability. This duty is towards any member of the public at large and not
towards a specific person or persons as is in the case of contracts. Dr.Winfield is of the opinion that if
the primary duty is towards a specific person or persons, it cannot arise from tort, although he admitted
that in some cases it is difficult to say who exactly are persons generally.

3] Such breach of primary duty is redressable by an action for unliquidated damages – The term
unliquidated means something which is not previously determined or fixed but left to the discretion of
the court. In case of breach of contract, the damages are liquidated n the sense that they are either
contained in the contract itself or they can be ascertained by applying some prescribed method. But in
a tort, there cannot be pre-determination of damages for the simple reason that the parties are stranger
till the tort is committed. Moreover, it is difficult to ascertain precisely the quantum of loss such as in a
defamation case.

Essentials of Tort – On the analysis of the above definitions, we find some common elements which
are necessary to constitute a tort i.e. [1] A tort is a civil wrong [2] Such civil wrong is different from other
civil wrongs i.e. from a mere breach of contract or trust or other equitable obligations [3] The remedy for
such civil wrong lies in an action for unliquidated damages.

Defences available in Tort – When the plaintiff brings an action against the defendant for a particular
tort the defendant would liable for the same. The defendant may, however, avoid his liability by taking
the plea of some defences. There are some particular wrongs e.g. in an action for defamation the
defence of privilege, fair comment or justification are available. There are some general defences
which may be taken against action for a number of wrongs. They are called General Defences, which
are as under :-

1] Volenti Non-fit Inuria [voluntary assumption of risk] – which provides that to a willing
person no injury is done and when a person consents to the infliction of some harm upon himself he
has no remedy for that in tort. In case the plaintiff voluntarily agrees to suffer some harm, he is not
allowed to complain for that and hs consent serves as a good defence against him. Consent to suffer
the harm may be express or implied, e.g. In Doctor-Patient case consent is implied. In a celebrated
case of Hall V/s. Brooklands Auto Racing Club, the plaintiff was a spectator at a motorcar race being
held at Brooklands on a track owned by the defendant company. During the race there was a collision
between two cars one of which was thrown among the spectators, thereby injuring the plaintiff. It was
held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which
any spectator could foresee, the defendant was not liable. Further the consent must be free and if
obtained by fraud or under compulsion or some mistaken impression, such consent does not serve as a
good defence. Further, the scope of application of the doctrine volenti non-fit injuria has been curtailed
in rescue cases. Haynes V/s. Harwood is an important authority on this point. In that case
defendant’s servant left a two-horse van unattended in a street and boy threw a stone on the horses
and they bolted causing grave danger to women and children on the road. A police constable, who was
on duty insde a nearby police station, on seeing the same, managed to stop the horses but in doing so
he himself suffered serious personal injuries. It being a rescue-case, the defence of volenti non-fit
injuria was not accepted and the defendants were held liable.

2] Plaintiff the wrongdoer – Under the law of tort, mere fact that the plaintiff was a wrongdoer
does not disentitle him from recovering from the defendant for his wrongful act. The plaintiff may have
to answer for his wrongful act but does not forfeit his right of action for the harm suffered. Bird V/s.
Holbrook is a celebrated case in this context where the plaintiff a trespasser over the defendant’s land
was entitled to claim compensation for injury caused by spring gun set by the defendant without notice
in his garden.

3] Inevitable accident – Accident means an unexpected injjry and if the same could not have
been foreseen and avoided in spite of reasonable care on the part of the defendant, it is inevitable
accident. For example, in Stanley V/s. Powell the plaintiff and the defendant who were members of a
shooting party went for pheasant shooting and the defendant fired at a pheasant but the shot from his
gun glanced off an oak tree and injured the plaintiff, the defendant was held not liable on account of the
injury being accidental.

4] Act of God – Act of God is a kind of inevitable accident with the difference that in the case of
Act of God the resulting loss arises out of the working of natural forces like exceptionally heavy rainfall,
storms, tides and volcanic eruptions etc. It has been explained in the Halbury’;s Law of England as
under :-
An Act of God in the legal sense may e defined as an extraordinary occurrence of circumstance
which could not have been foreseen and which could not have been guarded against or an accident
due to a natural cause directly and exclusively without human intervention and which could not have
been avoided by any amount of foresight and pains and care reasonably to be expected of the person
sought to be made liable for it.

5] Private Defence - The law permits use of reasonable force to protect one’s person or
property. If the defendant uses the force which is necessary for self-defence, he will not be liable for
the harm caused thereby.

6] Mistake – Mistake whether of fact or of law is generally no defence in an action for tort. When
a person wilfully interferes with the rights of another person it is no defence to say that he honestly
believed that there was some justification for the same when in fact no such justification existed, e.g.
entering the land of another .thinking that to be one’s own is trespass.

7] Necessity – An act causing damage, if done under necessity to prevent a greater evil is not
actionable even though harm was caused intentionally.

8] Statutory Authority - The damage resulting from act which the legislature authorises or
directs to be done is not actionable even though it would otherwise be a tort. When an act is done
under the authority of an Act, it is complete defence and the injured party has no remedy except for
claiming such compensation as may have been provided by the statute.
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Q.2 What is vicarious liability and under what kind of relationship it arises? How far a
master is liable for the torts committed by his servant?

Ans. Vicarious liability – Vicarious liability means the liability of one person for the torts committed
by another. Under the law of torts, the general rule is that every person is responsible for his own acts.
But there are circumstances where liability attached to a person for the wrongs committed by others.
The most common example of vicarious liability is the liability of the master for wrongs committed by his
servant. In such cases, liability is joint as well as several. The wrongdoer himself is liable, be he a
servant or an agent, as much as his principal. According to Salmond, in general a person is
responsible only for his own acts, but there are exceptional cases in which the law imposes on him
vicarious responsibility for the acts of others, however, blameless himself.

The vicarious liability i.e. the liability for another’s wrongful acts or omissions, can arise in three
ways i.e. [1] Liability by ratification – where the defendant has authorised or ratified the particular
wrongful act or omission [2] Liability by special relationship – whether the defendant stands to the
wrongdoer in a relationship which makes him answerable for wrongs committed by the latter, though
not specially authorised, e.g. master-servant, principal-agent, company-its directors and guardian-ward
etc. For example – A servant is a person who voluntarily agrees, whether for wages or not, to subject
himself and at all times during the period of service to the lawful orders and directions of another in
respect of certain work to be done. A master is the person who is legally entitled to give such orders
and to have them obeyed. The relation of master and servant exists only between persons of whom
one has the order and control over the work done by the other. A master is liable to third persons for
every such wrong of his servant as is committed in the course of his employment. The celebrated and
leading cases in this context are Robberts V/s. Shanks, Lloyd V/s. Grace Smith & Co. etc.

Principle on which vicarious liability is justified – It is justified on the following two maxims :-
1] Qui facit per alium facit per se – The master’s responsibility for his servant’s act has its origin
in the maxim, qui facit per alium facit per se [Meaning - He who does an act through another is deemed
in law to do it himself]. A person who puts another in his place to do a class of acts in his absence,
necessarily leaves him to determine, according to the circumstances that arise, when an act of that
class is to be done and trusts him for the manner in which it is to be done. Consequently, he is
answerable for the wrongs of the persons so entrusted.
2] Respondeat Superior – The master is answerable for every such wrong of the servant or
agent as is committed in the course of the service, though no express command or privity of the master
is proved. The rule based on the maxim Respondeat Superior [Meaning – Let the superior be
responsible] and has its original in the legal presumption that all acts done by the servant in and about
his master’s business are done by his master’s express or implied authority and are in truth the acts of
the master.

Thus, the master is liable for the wrong done by a servant in the course of his employment in
the circumstances viz. [1] whether the wrong is the natural consequence of the authorised act [2] where
the wrong is due to the servant’s negligence [3] where the wrong may be due to excess or mistaken
execution of a lawful authority [4] whether the wrong may be a wilful wrong [5]where the wrong may be
due to servant’s fraudulent act [6] where the wrong may be due to servant’s criminal act

Conclusion – The above classification about the master’s liability for servant’s wrong has also been
recognised by Calcutta High Court in Ishwar Chander Giri V/s. Satish Chand Giri. Thus, we can say
that under the above-mentioned circumstances a master would always be liable for the tortious act of
his servant.
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Q.3 There are various conditions which when present will prevent an act from being
wrongful which in their absence would be a wrong explain.

Ans. According to Sir Fredrick Pollock, there are certain rules of immunity which limit the rules of
liability. In other words, there are certain conditions which when present will prevent an act
from being wrongful which in their absence would be a wrong. This statement is perfectly true
with reference to the general exceptions. There are some general exceptions of tortious
liability which are based on public policy under certain special circumstances when the act of
the defendant, even if, causes damages to the plaintiff is justified. Thus, the general
exceptions to tortious liability are as follows :-

1] Act of State – According to Sir James Stephen, an act of state means an act injurious
to the person or property of some person who is not, at the time of the act, a subject of Her
Majesty and which is done by any representative of Her Majesty’s authority, civil or military
and is either previously sanctioned or subsequently ratified by Her Majesty. This principle
generally applies in India also. For example, seizure or acquisition of a territory by a
Government as a sovereign power or such acts of state which are debarred, cannot be
complained of in civil courts. However, the plea of act of state is not available in the cases of
[1] trespass [2] obligation imposed by a statute and [3] cases where it can be shown that
some benefit has resulted to the Government from tort of its servants.

2] Judicial Acts – No suit will lie against a judge for any act done or words spoken in his
judicial capacity. If a judge or a person acting in judicial capacity gives even a wrong verdict,
an action will not lie against him. The celebrated cases in this context are of Law V/s.
Llewllyn and Anderson V/s. Gorrie.

3] Quasi judicial Acts – The general rule is that persons or bodies exercising quasi-
judicial powers are protected from civil liability if they observed [i] rules of natural justice and
also [ii] the particular statutory or conventional rules [if any], which may prescribed their couse
of action. The leading cases in this context are Dawkins V/s. Antobus and Innes V/s.
wylie.

4] Executive Acts – Valid orders of a public authority form a good defence to a tort
committed by its officers in executing them e.g. orders of a court of justice. Police officers are
protected in the performance of their executive duties by express legislative enactments in
India like various police Acts. Even the private persons can also assist the police officer in
doing so. None of them are liable for the arrest because their act is justified by Cr.P.C.

5] Acts done under parental or quasi-parental authority - Parents or persons in loco


parentis may, for the purpose of correcting what is bad in the child, inflict
corporal/physical/bodily punishment, always, however, with this condition, that such
punishment is moderate and reasonable. The authority of a schoolmaster is, while it exists,
the same as that of parents. The modern view in this regard is that a schoolmaster has his
own independent authority to act for the welfare of the child.
6] Authorities of necessity – The master of a vessel on the high seas or in a foreign
port has disciplinary powers not only over the crew but the passengers also. Such powers
are based upon necessity and are limited to preservation of necessary discipline and safety of
the ship. For example – A’s house caught fire by some unknown defect of electrical
installation. In extinguishing the fire, B’s adjoining property is damaged by water. B brings an
action against A claiming damages for the damage done to his property. B cannot succeed
since A was acting under sheer necessity.

7] Act of God - Act of God is a kind of inevitable accident with the difference that in the
case of Act of God the resulting loss arises out of the working of natural forces like
exceptionally heavy rainfall, storms, tides and volcanic eruptions etc. It has been explained in
the Halbury’;s Law of England as under :-

An Act of God in the legal sense may e defined as an extraordinary occurrence of circumstance
which could not have been foreseen and which could not have been guarded against or an
accident due to a natural cause directly and exclusively without human intervention and which
could not have been avoided by any amount of foresight and pains and care reasonably to be
expected of the person sought to be made liable for it.

8] Acts authorised by statue - Where the legislature has authorised the doing of an
act, no action can be maintained for that act. In a celebrated case of Ram Gulam V/s. UP
where the plaintiff’s ornaments were exhibited in a theft case. By a strange coincident, they
were once again stolen while in the custody of the court. The plaintiff sued the Government for
the ornaments of their value. The court held that the Government was not liable as the alleged
tortious act was performed in discharge of an obligation imposed by law.

9] Leave and Licence [Volenti Non Fit Injuria] – Volenti Non-fit Inuria [voluntary
assumption of risk] – which provides that to a willing person no injury is done and when a
person consents to the infliction of some harm upon himself he has no remedy for that in tort.
In case the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for
that and hs consent serves as a good defence against him. Consent to suffer the harm may be
express or implied, e.g. In Doctor-Patient case consent is implied. In a celebrated case of Hall
V/s. Brooklands Auto Racing Club, the plaintiff was a spectator at a motorcar race being held
at Brooklands on a track owned by the defendant company. During the race there was a
collision between two cars one of which was thrown among the spectators, thereby injuring the
plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being
inherent in the sport which any spectator could foresee, the defendant was not liable. Further
the consent must be free and if obtained by fraud or under compulsion or some mistaken
impression, such consent does not serve as a good defence. Further, the scope of application
of the doctrine volenti non-fit injuria has been curtailed in rescue cases. Haynes V/s. Harwood
is an important authority on this point. In that case defendant’s servant left a two-horse van
unattended in a street and boy threw a stone on the horses and they bolted causing grave
danger to women and children on the road. A police constable, who was on duty insde a
nearby police station, on seeing the same, managed to stop the horses but in doing so he
himself suffered serious personal injuries. It being a rescue-case, the defence of volenti non-fit
injuria was not accepted and the defendants were held liable.

10] Inevitable accident – Accident means an unexpected injjry and if the same could not
have been foreseen and avoided in spite of reasonable care on the part of the defendant, it is
inevitable accident. For example, in Stanley V/s. Powell the plaintiff and the defendant who
were members of a shooting party went for pheasant shooting and the defendant fired at a
pheasant but the shot from his gun glanced off an oak tree and injured the plaintiff, the
defendant was held not liable on account of the injury being accidental.
11] Mistake of fact – Mistake whether of fact or of law is generally no defence in an action
for tort. When a person wilfully interferes with the rights of another person it is no defence to
say that he honestly believed that there was some justification for the same when in fact no
such justification existed, e.g. entering the land of another .thinking that to be one’s own is
trespass.

12] Exercise of common right – The exercise of ordinary rights for a lawful purpose and
in a lawful manner is no wrong, even if it causes damage. It will be a case of damnum sine
injuria. Men are free to seek their own advantage in the ordinary pursuit of business or use
of property, though a probable or intended result may be to diminish the profit or convenience
of others. Thus, competition in trade or business is, in itself, no cause of action, whatever
damage it may cause. Even selling at lower prices to attract customers or offering
advantages to customers, who will deal with oneself to the exclusion of others or a rival, are
not torts.

13] Private defence – The law permits use of reasonable force to protect one’s person or
property. If the defendant uses the force which is necessary for self-defence, he will not be
liable for the harm caused thereby.

14] Plaintiff a wrongdoer – Under the law of tort, mere fact that the plaintiff was a
wrongdoer does not disentitle him from recovering from the defendant for his wrongful act.
The plaintiff may have to answer for his wrongful act but does not forfeit his right of action for
the harm suffered. Bird V/s. Holbrook is a celebrated case in this context where the plaintiff a
trespasser over the defendant’s land was entitled to claim compensation for injury caused by
spring gun set by the defendant without notice in his garden.

15] Acts causing slight harm – The law does not take account of trifles. The maxim – de
minimis non curate lex, which means nothing is a wrong of which a person of ordinary
sense and temper would not complaint. The principle is also recognised in Section 95 of the
Indian Penal Code. For example – The leading case in this respect is of Coward V/s.
Baddeley. However, this maxim does not apply in the case where there is an injury to a
legal right. The celebrated case in this context is of Halford V/s. Bailey

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Q.4 Define Libel and Slander and discuss the saying, The greater the truth the great the
Libel. “ What is meant by libel and slander. Distinguish between them. Or Define
defamation and its essentials and its kinds.

Ans. Definition of defamation - Every person has an absolute right to preserve his reputation.
This right is acknowledged as an inherent personal right of every person. It is a right in rem
i.e. a right available against the whole world. A man’s reputation is his property and if
possible more valuable than any other property.

Defamation is defined by the eminent jurists as under :-

According to Dr.Winfield, Defamation is the publication of a statement which tends to lower


a person in the estimation of right thinking members of society generally or which tends to
make them shun/ignore or avoid that person. According to Dr.Underhill, Defamation is the
publication of a false and defamatory statement concerning another without just cause or
excuse whereby he suffers injury to his reputation. According to Salmond, Defamation is
the publication of false and defamatory statement regarding another without any justification.

On the basis of the analysis of the above definitions, we can say that when there is a
publication of a statement which exposes a person to hatred, contempt or ridicule or to
expose him in his trade, business, profession, calling or office or to cause him to be
shunned/ignored or avoided in the society. For example – A says to B that Z is suffering
AIDS or Leprosy. It is a defamation of Z if he is not so suffering.

Kinds of Defamation – Defamation is a generic/general/common/basic term containing its


two forms i.e. [i] libel and [ii] slander.

Definition of Libel – A libel is apublication of false and defamatory statement in some


permanent form, tending to injure the reputation in some permanent form tending to injure the
reputation of another person without lawful justification or excuse. Essentials of Libel – are
three [a] the statement must be false [b] it must be in a permanent form and [c] it must be
defamatory. It is must be noted that the libel is actionable per se without proof of actual
damage. For example – in Garbett V/s. Hayell the defendants published in their magazine
on a left hand page a photograph of the plaintiff carrying on his business of an outdoor
photographer, in which he was depicted with his camera and showing pictures to two women.
On the opposite page was a photograph of a naked woman. Commencing under the first
photograph and ending under the second were words stating that for an extra payment a
customer could have a photograph like that of the naked woman. The plaintiff brought an
action for libel claiming that the juxtaposition/combination of the photographs and the letters
thereunder implied that he dealt in indecent pictures. It was held that the photographs and
the lettering were arranged in such a manner as to be capable of a defamatory meaning and
were in fact defamatory to the plaintiff.

Kinds of Defamation – There are two forms/kinds of Defamation i.e. [i] Libel and [ii] Slander.

Definition of Slander – A slander is a false and defamatory verbal or oral statement in some
transitory/passing/momentary/short-lived/temporary form tending to injure the reputation of
another without lawful justification or excuse. By reputation is meant the opinion of the world
in general. It may be noted that slander is not actionable without proof of special damage i.e.
it is not actionable per se except in the cases and/or six essentials of slander, mentioned
below :-
1] The matter complained of must be defamatory
2] It must be false and must not be privileged.
3] It must refer to the plaintiff.
4] It must be published.
5] It must be published by the defendant.
6] There must be special damage to the plaintiff except in the five cases mentioned.

Slander when actionable per se – In the following five cases slander is actionable per se
without proof of special damage to the plaintiff :-

1] Accusation of criminal offence; [2] Accusation of virulent/strong/dangerous disease; [3]


Imputation against office, profession or trade; [4] Unchastity in woman or girl; and [5]
Aspersion on caste.

Distinction between Libel and Slander


Libel Slander
Libel is the defamation in a written Slander is the defamation in an oral or
permanent form normally addressed to the transient /temporary/short-lived form
eye addressed to the ear e.g. defamation through
parrot/imitator/copier.
Libel is the defamation in a permanent form Slander is the defamation in a transient form
whether exhibited to the eye as in the case whether audible as in spoken words or visible
of a statute, effigy/image, caricature and the as in the case of gesture.
like or only to the eye as the case of a
photographic record.
In India as well as in England libel is both a In India, slander is also both a tort and a
tort and crime. crime but in England, slander is a civil wrong
only.
Libel is actionable per se without proof of Slander is not actionable per se without proof
actual damage of actual damage except in fives cases
mentioned above.
In case of libel, there exists malice and Slander may be uttered in the heat of the
greater deliberation. moment and under a sudden provocation.
In case of libel, the actual publisher may be In case of slander, the publisher acts
an innocent person and thus may not be consciously and voluntarily and must always
liable. be liable.
In English law the action for libel is barred In English law, the slander is barred after two
after six years. In India the period of years whereas the period of limitation inf India
limitation is one year for both libel and is one.
slander.

Essentials of defamation – As noted above, defamation is a generic term covering both libel
and slander. The following essentials/requisites common to both are as follows :-

1] The statement must be defamatory; 2] The statement must refer to the plaintiff;
and 3] The statement must be published.
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Q.5 A horse is left on the road with leg tied. A car runs it and injures it. Can the owner of
horse recover the damages OR Explain Davis V/s. Mann case. Or When is the plaintiff
entitled to recover damages from the defendant in spite of his own negligence?

Ans. The facts of the case of Davis V/s. Mann were that :-

1] the plaintiff, Davis, tied down the fore legs of his donkey and turned it into a narrow lane.

2] The said donkey was run over by a heavy wagon/car belonging to the defendant, Mann, going at too
fast pace/speed, which was being driven by the defendant.

3] The owner of the donkey filed a suit for damages against the owner of wagon for the loss caused to him
by the negligence of the defendantt.

4] The defendant in his defence contended that the plaintiff himself was guilty of contributory negligence in
leaving his donkey into a narrow lane after having tied its fore-feets and as such he is not entitled to any relief. It
was further argued that the suit of the plaintiff is not maintainable because he who seeks equity must come
with clean hands.

5] The plaintiff in his defence pleaded that since the defendant had sufficient opportunity of avoiding the
accident by taking reasonable care in spite of the negligence of the plaintiff. The defendant was driving his
wagon driven by horses too fast that it negligently ran over and killed the donkey. Actually, it was the duty of the
defendant to go at such a speed as not to cause damage to others. The plaintiff argued that since the defendant
had the last opportunity to avoid the accident, therefore, the plaintiff is entitled to recover damages in spite of his
own negligence.

6] The Lower Court decreed the suit of the plaintiff holding that the defendant had sufficient opportunity of
avoiding the accident if the driver of the wagon had been decently careful. Although, the donkey/ass may have
been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to
prevent accident. If that were not so, said Pake B., a may might justify the driving over goods left on a public
highway or even over a man lying asleep there or purposely running against a carriage going on the wrong side
of the road. Thus, the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public road
was no answer to the action unless the presence of the donkey, thus, there was the immediate cause of injury.

Principles of law laid down in this case – 1] Where the direct and immediate cause of danger is proved to
be the fault of the defendant, contributory negligence by the plaintiff cannot be established merely by
showing the carelessness of the plaintiff at a previous stage; [2] In spite of his own negligence the
plaintiff is entitled to recover damages, if the defendant had the last opportunity to avoid the accident by
exercising ordinary care.

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Q.6 Explain jurisdiction and procedure adopted by District Consumer Forum.

Ans. The object of Consumer protection Act is to create a three-tier Consumer Disputes Redressal Agencies
for the purpose of speedy and inexpensive grievance redressal of a consumer by way of an alternative
machinery thus to abstain from the ordinary process of the Civil Court where the litigation is likely to cause delay
and heavy cost upon a consumer.

The Legislature intended to provide affordable and accessible machinery to an aggrieved consumer so
that a consumer should be in a position to seek adjudication on the subject matter of disputed. The only
condition to be fulfilled is that on the date when the consumer dispute is arisen and a complaint is filed before the
Consumer Dispute Redressal Forum, the cause of action should not have become time barred under the
Limitation Act.

Under Section 9[a] the State Government is under statutory obligation to establish a Consumer Dispute
Redressal Forum to be called as ‘District Forum’ or ‘District Consumer Forum’ in each district of the State by
notification. The ‘District Forum’ is an establishment at District level. However, the District Forums had not been
established in all the Districts of the country except a few.

Composition of District Forum – Section 10 provides the composition of the District Forum at a District level
which consists of [a] President – A person who is or has been or is qualified to be a District Judge [b] Two other
members who shall be person of ability, integrity and standing and have adequate knowledge or experience of or
have proven capacity in dealing with problems relating to economic law, commerce, accountancy, industry public
affairs or administration, however, it is necessary that out of two members of the District Forum, one member
shall be a woman. As per Sections 10[2], every member of the District Forum shall hold office for a term of five
years or upto the age of 65 whichever is earlier. The Act prohibits reappointment of the members of the District
Forum but a member of the District Forum may resign his office in writing under his hand which is necessarily to
be addressed to the respective State Government.

Jurisdiction of the District Forum – Section 11 provides two kinds of jurisdictions of District Forum [i] pecuniary
and [ii] Territorial.

[i] Pecuniary Jurisdiction – According to Section 11[1], the District Forum will have jurisdiction to
entertain complaints and adjudicate where the value of the goods or services and the compensation, if any,
claimed does not exceed Rupees 5 lakhs. So, the pecuniary limit in respect of jurisdiction of the District Forum
where the value of goods or services which is the subject matter of dispute must be exceeded Rs.5 lachs.

[ii] Territorial Jurisdiction – According to Section 11[2] a complaint shall be instituted in a District Forum
[a] within the local limits of whose jurisdiction the opposite party or each of the opposite parties actually and
voluntarily resides or carries on business or personally works for gain or has a branch office or personally works
for gain or any of the opposite party reside voluntarily or actually at the time of lodging complaint, it will be
appropriate District Forum to institute the complaint and that District Forum would be competent to adjudicate on
the complaint. The complaint can also be instituted to the District Forum within the local limits of whose
jurisdiction the ‘cause of action’ wholly or in part arises.

Procedure adopted by District Forum – Section 12[1] provides that a complaint in relation to any goods sold or
delivered or agreed to be sold or any service provided or agreed to be provided may be filed with District Forum
by one of the following :-

1] The consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such
services provided or agreed to be provided.
2] Any recognised consumer association even if the person who is the recipient of goods or services not a
member of the association.
3] By any or more consumers where there are numerous consumers having the same interest with the
permission of District Forum.
4] By the Central or State Govt.

Sections 13[1] provides the procedure on receipt of a complaint by the District Forum which relates to
goods of two kinds :-
[1] the goods in which defect can be determined without proper analysis; and
[2] the goods in which defect cannot be determined without proper analysis by the appropriate
laboratory.

Procedure on receipt of complaint – According to Section 13 the District Forum shall on receipt of a complaint,
if it relates to any goods [a] refer a copy of the complaint to the opposite party mentioned in the complaint
directing him to give version of the case within a period of 30 days or such extended period not exceeding 15
days as may be granted by the District Forum [b] After giving due opportunity to opposite party to represent his
case the District Forum shall proceed to settle/decide the case.

Important Points :-
[1] After conducting the proceeding under Section 13 and satisfying itself that the goods complained
against suffer from any of the defects or any of the allegations contained in the complaint about the services are
proved, the District Forum shall order the opposite party to do one or more of the following things stated in
Section 14[1] namely :-
[a] to Remove the defect [b] to replace the goods with new goods of similar description which shall be
free from any defect [c] to return to the complainant the price [d] to pay such amount as may be awarded by it as
compensation to the consumer for any loss or injury suffered by consumer due to the negligence of the opposite
party [e] to remove the defects in the goods or definitions in the services in question [f] to discontinue the unfair
trade practice or not to repeat them [g] to withdraw the hazardous goods from being offered for sale [h] to cease
manufacture of hazardous goods and to desist from offering services which are hazardous in nature [i] to provide
for adequate costs to parties.

[2] The order of the District Forum should be a speaking order


[3] The proceedings are to be conducted by the President of the District Forum and at least one member
thereof sitting together and the order of the District Forum is to be signed by its President and the member or
members who conducted the proceedings.
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Q.7 Explain different penalties which can be given by District Consumer Forum if a person
refuses to perform its order.

Ans. The object of Consumer protection Act is to create a three-tier Consumer Disputes Redressal Agencies
for the purpose of speedy and inexpensive grievance redressal of a consumer by way of an alternative
machinery thus to abstain from the ordinary process of the Civil Court where the litigation is likely to cause delay
and heavy cost upon a consumer.

The Legislature intended to provide affordable and accessible machinery to an aggrieved consumer so
that a consumer should be in a position to seek adjudication on the subject matter of disputed. The only
condition to be fulfilled is that on the date when the consumer dispute is arisen and a complaint is filed before the
Consumer Dispute Redressal Forum, the cause of action should not have become time barred under the
Limitation Act.

Under Section 9[a] the State Government is under statutory obligation to establish a Consumer Dispute
Redressal Forum to be called as ‘District Forum’ or ‘District Consumer Forum’ in each district of the State by
notification. The ‘District Forum’ is an establishment at District level. However, the District Forums had not been
established in all the Districts of the country except a few.

Composition of District Forum – Section 10 provides the composition of the District Forum at a District level
which consists of [a] President – A person who is or has been or is qualified to be a District Judge [b] Two other
members who shall be person of ability, integrity and standing and have adequate knowledge or experience of or
have proven capacity in dealing with problems relating to economic law, commerce, accountancy, industry public
affairs or administration, however, it is necessary that out of two members of the District Forum, one member
shall be a woman. As per Sections 10[2], every member of the District Forum shall hold office for a term of five
years or upto the age of 65 whichever is earlier. The Act prohibits reappointment of the members of the District
Forum but a member of the District Forum may resign his office in writing under his hand which is necessarily to
be addressed to the respective State Government.

Penalities by the District Forum in case of non-compliance of its order.

Section 27 of the Consumer Protection Act, 1986 makes provision for imposing the penalties against a
trader or person or complainant who fails or omits or refused to comply with order made by the District
Forum/Redressal Agencies. The Redressal Agencies have been conferred power under Section 27 to punish
with imprisonment for a term which shall not be less than one month ut may extend to three years or with find
which shall not be less than Rs.2,000/= but which may extend to Rs.10,000/= or with both. It means the
Redressal Agencies having jurisdiction to impose sentence from one month to three years and fine ranging from
Rs.2,000/= to Rs.10,000/- or both under the provisions of Section 27 of the Consumer Protection Act, 1986 when
the orders made by the Consumer Dispute Redressal Agencies/District Forum have not been complied with,
therefore, the non-compliance of order would attract the provisions contained under this Section.

*******************
Q.9 Q.8 What are the objects and aims of passing of Consumer Act and write about Consumer-
who is a consumer. OR Write an essay on the general introduction of the Consumer.

Ans. The object of Consumer protection Act is to create a three-tier Consumer Disputes Redressal Agencies
for the purpose of speedy and inexpensive grievance redressal of a consumer by way of an alternative
machinery thus to abstain from the ordinary process of the Civil Court where the litigation is likely to
cause delay and heavy cost upon a consumer.
The Legislature intended to provide affordable and accessible machinery to an aggrieved consumer so
that a consumer should be in a position to seek adjudication on the subject matter of disputed. The only
condition to be fulfilled is that on the date when the consumer dispute is arisen and a complaint is filed before the
Consumer Dispute Redressal Forum, the cause of action should not have become time barred under the
Limitation Act. According to Section 1[1] of this Act

Aims & Objects of the Consumer Protection Act


[i] The Act provides for better protection of the interest of consumers and for that purpose makes
provisions for the establishment of consumer Councils and other authorities for the settlement of
consumer disputes and for other connected matters. The Act seeks to protect the consumer in the
following respects :-

ii] It seek, inter alia, to promote and protect the rights of consumer such as :-
[a] The right to be protected against marketing of goods which are hazardous to life and property;
[b] The right to be informed about the quality, quantity, potency, purity, standard and price of
goods to protect the consumer against unfair trade practices;
[c] Te right to be assured, wherever possible, access to variety of goods at competitive prices;
[d] The right to be hard and to be assured that consumers’ interests will receive due consideration
at appropriate forums;
[e] The right to seek redressal against unfair trade practices or unscrupulous exploitation of
consumers; and
[f] Right to consumer education.

iii] These objects are sought to be promoted and protected by the Consumer Protection Councils
to be established at the Central and State levels.

iv] To provide steady and simple redressal to consumer disputes a quasi-judicial machinery is
sought to be set up at the District, State and Central levels. The quasi-judicial bodies will observe the
principles of natural justice and have been empowered to give reliefs of a specific nature and to award,
wherever appropriate compensation to consumers. Penalties for non-compliance of the orders given
by the quasi-judicial bodies have also been provided.

v] The Bill seeks to achieve the above objects. The notes on the clauses explain in detail the
provisions of the Bill.

Subject matter of the Act - This act applies to all goods and services except those which are
exempted by the Central Govt. It applies to private, public as well as cooperative sectors and provides
for compensating the consumers, who have been given the rights under the Act.

Establishment of Consumer Disputes Redressal Agencies - The Act provides for the establishment
of different Consumer Disputes Redressal Agencies at different levels i.e. the District, the State and the
Central levels. The complaints of consumers are required to be disposed of within a short period of
three months as far as possible with convenience and easy approach to the Forum without payment of
any court fees. Proceedings under the Act are deemed to be judicial proceedings. The Chapter III
provides for creation three-tier consumer disputes redressal agencies, which are District Forum State
Commission and the National Commission.

Who is Consumer – The expression “Consumer” is defined under Section 2[1[]d] of the Act. It includes to
declare the meaning of goods and services by use of wide expressions and the ambit is further enlarged by use
of inclusive clause, e.g. it is not only purchase of goods or hirer of services but even those who use the goods or
who are beneficiaries of services with approval of the person who purchased the goods or who hired services are
included in it. The Act, thus, aims to protect the economic interest of a consumer as understood in commercial
sense as a purchaser of goods and in the larger sense of user of services.

Consumer Dispute – According to Section 2[1][e] of the Act, “Consumer Dispute” means a dispute where the
person against whom a complaint has been made, denies or dispute the allegations contained in the complaint.
For example – Where the complainant purchased a Jeep in an auction which was stated to be of diesel make
whereas in fact it was petrol engine and its engine number did not tally with the number of engine given in the
registration book. It amounted to sale of defective goods and raised a consumer dispute. The celebrated case
in this regard is of Urmila Goel V/s. Sr.D M of LIC of India ]

***************
Q.9 Explain the principle of nuisance. What are the defences open in action based on nuisance OR
Define nuisance. Is coming to nuisance a defence for the Defendant? Illustrate your answer. Also
distinguish between public and private nuisance.

Ans. The word ‘Nuisance’ is derived from the French word ‘nuire’ and the Latind word ‘nocere’, which mean
to do hurt or to annoy. Nuisance has been defined to be anything done to hurt or annoyance of the lands,
tenements or hereditament of another and not amounting to a trespass. The different jurists have defined
nuisance in different ways i.e.

According to Blackstone – A nuisance is something that works to hurt, create inconvenience or damage.
According to Salmond – The wrong of nuisance consists in causing or allowing without lawful justification the
escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff e.g. water,
smoke, smell, fumes, gas, noise, heat, vibration, electricity, disease, germs, animals, negligence. According to
Winfield – Nuisance means an unlawful interference with a person’s use or enjoyment of land or some right over
or in connection with it. Thus, the analysis of the above definitions clearly provides that the acts interfering with
the comfort, health or safety are the examples of it. The interference may be by any way that is noise, vibrations,
heat, smoke, smell, fumes, water, gas, electricity, excavations or disease producing germ etc. Although, no
exact or precise definition of nuisance can be given, yet it may be described as unlawful interference with a
person’s use or enjoyment of land or of some right over or in connection with it. Nuisance is generally a
continuing wrong i.e. it consists in the establishment of some state of things which continuously or repeatedly
caused the escape of obnoxious things on the plaintiff’s land.

Characteristics of nuisance – [1] It implies that one should use one’s property in such a way that no injury is
done to another’s use of property [2] Nuisance is different from trespass because it is regarded an injury to some
right or accessory to possession but not to possession itself. Thus, a right of way or light is an incorporeal right
over property not amounting to possession of it and a disturbance of it is a nuisance and not a trespass.

Kinds of Nuisance – Nuisances are of two kinds [1] public nuisance and [2] private nuisance.

Public or Common Nuisance – Public nuisance is an act or 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 sue any public
right. Thus, keeping a common gaming house or a disorderly inn, obstructing a highway or making it dangerous
for traffic, would come within the category of public nuisance. It may be noted that public nuisance is both a tort
as well as an offence under Section 268 IPC. The celebrated case in this context is of Soltu V/s. De.

Private Nuisance – A private nuisance is some unauthorised use of a man’s own property causing damage to
the property of another or some unauthorised interference with the property or proprietary rights of another
causing damage but not amounting to trespass. Private nuisance includes obstruction to light and air, wrongful
escape of foul gas or noise, water filth, germs etc. For example – in Thompson Schewab V/s. Costaki where a
house holder residing in a respectable residential street, complained that two woman were in the habit of picking
up men in neighbouring streets and bringing them to the house next door for the purposes of prostitution. The
Court held that activities could constitute actionable nuisance.

There are two kinds of private nuisance i.e. [1] Damage to property – In case of damage to property, any
sensible injury would be sufficient to support an action. In consideration whether an act is a nuisance not only
the thing done but also the surrounding circumstances must be taken into account. The leading case in this
regard is of Hollywood V/s. Emmett. [2] Physical discomfort – In case of physical discomfort, the act
complained of must be [i] in excess of natural and ordinary course of enjoyment of property and [ii] materially
interfering with the ordinary comfort of human existence. The celebrated case is of St.Hellens Smelting Co.
V/s. Tipping.

Is coming to nuisance a defence for the defendant – Under the law of tort, no defence is available to the
defendant that the plaintiff himself came to the nuisance. In fact, if the nuisance already exists in a particular
place and the plaintiff therebny suffered damage due to that the defendant cannot take the defence that the
plaintiff himself came to nuisance. For example – If a man knowingly purchases an estate in a close proximity to
a smelting works, his remedy for nuisance created by fumes emanating therefrom is not affected.

Difference between Public Nuisance and Private Nuisance

Public Nuisance Private Nuisance


A public nuisance is an offence against public right, A private nuisance is a violation of a private right
safety or convenience. It affects public at large or of a person to the comfortable occupation of
some considerable portion thereof. property. It affects only a person or determinate
body of persons.
No suit for damages can be filed by a private A suit for damages can be filed by an person in
nuisance in his own name in respect of a public possession of land who is injured by reason
nuisance except under the three circumstances i.e. thereof.
[1] Special Damage [2] Direct Damage [3]
Substantial Damage.
A public nuisance cannot be acquired by A private nuisance i.e. a right to create or
prescription. continue private nuisance may be acquired by
prescription.
A public nuisance cannot be abated by a person A private nuisance may be abated by the person
affected. affected by injury.
In case of public nuisance, no action lies for In case of private nuisance, the action lies for
damages, unless the plaintiff has sustained special general damages.
damages, the action is generally for declaration and
injunction.

Defences of Nuisance –
1] Grant – It is a valid defence to an action for nuisance that the said nuisance is under the terms of a
grant.
2] Prescription – A special defence available in the case of nuisance is prescription. The right to continue
a private nuisance may be acquired as an easement of prescription, if it has been peaceably and openly enjoyed
as an easement and as of right without interruption and for 20 years.
3] Statutory authority – When a statute has authorised the doing of a particular act, or the user of land, in
particular way, all remedies, whether by way of indictment/condemnation/accusation or action, are taken away,
provided that every reasonable precaution consistent with the exercise of the statutory powers has been taken.
For example – In Vaughan V/s. Taff Vale Rly. Co. the defendants, who had authority by statute to use
locomotive engines on their railway, were held not liable for a fire caused by the escape of sparks from one of
their engines, as they had taken all reasonable measures to prevent the escape of sparks.
************
Q.10 Write about who can sue or who cannot be sued OR write the immunities of following
in Tort. (1) Unborn Child (2) husband & wife (3) President of India. (Lunatic (5)
Ambassador (6) Corportion.

Ans. [1] Unborn child – An unborn child cannot sue for any tort done to him or cannot be sued as he/she
was not in existence and, therefore, cannot be claimed against for any tort done by him/her. In a leading case,
where a pregnant woman was injured in a railway accident as a result of which the child was born deformed. It
was held that the child could not maintain an action for damages. The decision was probably based on the
ground that thee was no duty of care to an unborn person.

[2] Husband & Wife – A wife could not sue her husband for a tort nor could a husband sue his wife
upon the principle of English law that husband and wife form, in the eyes of law, one person. But by virtue of
Married Women’s Property Act, 1882 a wife could sue her husband for the protection and security of her
separate property. But the husband has no such corresponding right against the wife. A wife could not sue her
husband for his ante-nupital tort nor could she sue him for a personal wrong, such as assault, libel or injury
caused to her by her husband’s negligence. Hence, the saying a husband may with civil impunity, break his
wife’s leg but not her watch is established. A divorced wife could not sue her husband for a personal tort
committed during married life. However, in India, the notion of the legal identity between husband and wife does
not apply and, therefore, an action in tort by one against the other is maintainable.

[3] President of India – Article 361 of Indian Constitution says that the President, Governors and
Rajpramukhas of States are not answerable to any court [i] for the exercise and performance of the powers and
duties of their office or [ii] for any act done by them in the exercise of those powers and duties. The general rule
in India is that State is immune in the field of torts.

[4] Lunatic – Ordinarily, lunacy is no answer to an action in tort. But a lunatic will not be liable for
those torts in which some mental condition of mind forms an essential ingredient. A person sane enough to be
accountable to the criminal law would probably be liable for any kind of tort.

[5] Ambassador – Foreign ambassadors, their families and servants cannot be sued, unless they
waive their privilege by submitting to the jurisdiction of the court. An Ambassador cannot be sued during his/her
term of office. Thus, the right to sue him in tort is not no-existent but is merely suspended as long as he/she
holds the office. In fact, it is open to such a person to waive his privilege, but this may not be inferred unless he
actually appears in court and, thus, submits to its jurisdiction.

[6] Corporation – A corporation cannot maintain an action for person wrongs, because by its very
nature, such injuries cannot be inflicted on a corporation but a Corporation can sue for a libel affecting its
property or business. Thus, ordinarily a corporation may sue for any tort in the same way as an individual.

**************
Q.11 Explain the concept of “duty of care”and standard of degree of care, in the light of
Dononghue Vs. Stevenson case. or The law takes no cognizance of carelessness
where there is no duty to take care. Discuss the statement in the light of decided
cases.

Ans. Duty of Care – It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has
to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. In
Dononghue V/s. Stevenson, A purchased a bottle of ginger beer from a retailer for the appellant, a lady friend.
The decomposed body of snail floated out with ginger beer when it was poured into a tumbler. The appellant
alleged that she seriously suffered in her health in consequence of her having drunk part of the contaminated
contents of the ginger beer bottle. The bottle was of dark opaque glass and closed with a metal cap, therefore,
the contents could not be ascertained by inspection. She brought an action against the manufacturer for
damages. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not
contain any noxious matter and that he would be liable for breach of the duty. It was also held that even though
there was no contractual relationship between the manufacturer and the consumer, the consumer could bring an
action and this case has done away with privity of contract fallacy.

Standard of decree of care or Standard of care required – Breach of duty means non-observance of due care
which is required in a particular situation. The standard of care is that of a reasonable man or of an ordinarily
prudent man. In Blyth V/s. Birmingham Water Works it was held that negligence is the omission to do
something which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of
human affairs, would do something, which a prudent and reasonable man would not do. In other words, a
reasonable man or an ordinarily prudent man is considered to observe due care in a particular situation. The law
requires taking of three points into consideration to determine the standard of care required viz.
[1] The importance of the Object to be attained – The law does not require greatest possible care but care
requires is that of a reasonable man under certain circumstances. The law permits taking chance of some
measure of risk so that in public interest various kinds of activities should go on. For example - If some orchard
trees got decayed due to the absorption of excess water from the canal through the roots, the State Govt., who
had constructed the canal for irrigation purposes, could not be held liable for the same.
[2] The magnitude of Risk – For example, The degree of care varies according to the likelihood of harm and
seriousness of injury. For example – A person carrying a loaded gun is expected to take more precaution than a
person carrying an ordinary stick. Greater care is required in transporting inflammable and explosive material
than in transporting ordinary goods.
[3] The amount of consideration for which service etc. are offered – The degree of care depends also on
kind of services offered by the defendant and the consideration charged thereof from the plaintiff. For example –
one who purchases a glass of water from a trolley in the street for 10 or 25 paisa is entitled to safe drinking water
which should not ordinary infect him. But if a person purchases a mineral water bottle for Rs.10 or Rs.15 then he
can justifiably demand higher degree of purity.

It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff
had also to show that the damage, thus, caused is not too remote a consequence of the defendant’s negligence.
The damages caused to the plaintiff should not be too remote, that is there should be reasonable proximity
between the act of negligence and the resultant damage. The court should not be unduly liberal in awarding the
damages nor should it be too inadequate. It should be reasonable determined so as to satisfy both the parties,
i.e. the plaintiff as also the defendant.
*****************
Short Questions (04 nos)
1. Rule laid down in Rylands Vs. Fletcher and its exceptions.

Ans. The Rules/principles of law laid down in the case of Rylands Vs. Fletcher are as under :-

1] If a person, who for his own purposes, brings on his land collects and keeps there
anything likely to do mischief, if it escapes, must keep it at his own peril; and if he does not do so, is
prima facie, answerable for all the damage which is the natural consequence of its escape.

2] The defendant can excuse himself by showing that the escape was owing to plaintiff’s
default or perhaps that the escape was the consequence of Viz Major or the Act of God.
***********

2. Doctrine of Res-Ipsa-Loquitor [Burden to prove negligence/Burden Proof Negligence].


Ans. As a general rule it is for the plaintiff to prove that the defendant was negligent. The initial
burden of making out at least a prima facie case as against the defendant lies heavily on the plaintiff
but once this onus is discharged, it will be for the defendant to prove that the incident was the result of
inevitable accident or contributory negligence on the part of the plaintiff.
***************

3. Joint Tort Feasors.


Ans. When several persons joint in committing a tort, they become joint tort-feasors. There must be
some connection between the act of one alleged tort-feasor and that of the other. For example – In a
leading case of Kosk, the two ships collided with each other. One of them dashed against the plaintiff’s
ship, consequently, the plaintiff’s ship sank. In an action for damages, it was held that they were not in
the joint tort-feasors because the plaintiff’s ship was damaged due to the independent act of both the
ships. Hence, both the ships were liable independently.
*******

4. Distinguish between false imprisonment and malicious prosecution.

Ans.
False imprisonment Malicious prosecution
False imprisonment is wrongfully Malicious prosecution is wrongfully setting the
restraining the personal liberty of the criminal law in motion.
plaintiff.
In false imprisonment, the personal liberty In malicious prosecution, the arrest is secured
of the plaintiff is wrongfully restrained by a under judicial sanction.
private individual, either personally or by
setting a ministerial officer in motion.
Malice is not an essential element in case Malice is an essential ingredient in an action
of false imprisonment. for malicious prosecution.
In false imprisonment, the onus lies on the In an action for malicious prosecution, the
defendant to plead and prove affirmatively plaintiff must allege and prove the absence of
the existence of reasonable and probable reasonable and probable cause for the
cause as his justification. prosecution.

**************
5. Tresspass-ab-initio
Ans. When a person enters upon the land of another by authority of law and is subsequently guilty of
an abuse of his authority by an act of misfeasance [Meaning – improper performance of some lawful
act], his misconduct relates back, so as to make his original entry tortious and he is liable in damages
not only for the entry itself but also for subsequent acts. When, in an entry, authority or licence is given
to anyone by the law and he abuses it, he becomes a trespaer ab initio, that is to say, the authority of
justification is not only terminated but is treated as if it has never existed. For example – The law gives
authority to a person to enter into a common inn, but if a person, who enters the inn, steals anything
therefrom, the law presumes that he entered for that very purpose and holds him liable for the original
entry itself. Thus, two conditions must be satisfied before applying the doctrine of trespass ab initio
i.e. [1] the authority must be given by law and [2] subsequent act must be a misfeasance.
******

6. Strict liability and/or absolute liability.


Ans. Meaning of Strict Liability or Meaning of Absolute Liability – There are certain cases in
which the defendants are under the duties to secure safety. In such cases even if there is no
negligence or wrongful intention on the part of the defendant yet he is liable for direct consequences of
his acts. That is why it is called Absolute Liability. Here, the wrong arises from the breach of an
absolute duty. An absolute duty may be defined as a duty which renders a man liable without any fault
of his, irrespective of any consideration of intention or negligence on his part. It is absolute, meaning
thereby that it is not necessary for the injured party to prove any intention or negligence on the part of
the injuring party and no amount of care and caution expended by the latter to prevent the damage
done to the former will excuse him. The celebrated case in this context is of Rylands Vs. Fletcher.

The rule laid down in the said case is that If a person, who for his own purposes, brings on his
land collects and keeps there anything likely to do mischief, if it escapes, must keep it at his own peril;
and if he does not do so, is prima facie, answerable for all the damage which is the natural
consequence of its escape.
**************

7. Ubi jus ibi remedium – It is a latin maxim where there is a right there is a remedy. The
principle that where one’s right is invaded or destroyed, the law gives a remedy to protect it or damages
for its loss. Further, where one’s right is denied the law affords the remedy of an action for the
enforcement. This right to a remedy, therefore, includes more than is usually meant in English law by
the term ‘remedy’ as it includes a right of action. Wherever, therefore, a right exists, there is also a
remedy.
************
8. Injuria Sine Damno – It means violation of a legal right without causing any harms, loss or
damage to the plaintiff. There are two kinds of torts [1] those torts which are actionable per se without
the proof of any damage or loss and [2] the torts which are actionable only on the proof of some
damage caused by an act. Injuria Sine Damno covers the first class of cases. In such cases, there is
no need to prove that as consequence of an act, the plaintiff has suffered any harm. For a successful
action, the only thing which has to be proved is that the plaintiff’s legal right has been violated i.e. there
is injuria.
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9. Damnum Sine Injuria – It means damage which is not coupled with an unauthorised
interference with the plaintiff’s lawful right. Causing of damage, however, substantial, to another person
is not actionable in law unless there is also violation of a legal right of the plaintiff.
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