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LAW OF TORTS

Notes for Competitive Exams

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 Nature and Definition of Torts

Introduction:
The term “Tort” has been derived from the Latin term “Tortum” which means to twist. It
means twisted, crooked, unlawful, or a wrongful act rather than an act that is straight or lawful.
Thus, Tort may be defined as a civil wrong which is repressible by an action for unliquidated
damages and which is other than a mere breach of contract or breach of trust. The law of torts
is an uncodified law but it is mentioned under section 2(m) of the Limitation Act, 1963.
Definition:
“Tort as a civil wrong for which the remedy is common law action for unliquidated damages
and which is not exclusively the breach of contract or the breach of trust or other merely
equitable obligation.”- Salmond
“Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards
persons generally and its breach is repressible by an action for unliquidated
damages.”- Winfield
Nature of a Tort:
A Tort is a civil wrong and thus can be differentiated from various other forms like Crime,
Contract, and Breach of trust.

The difference between a tort and a crime is as follows:

Firstly, Tort is an infringement of a private or civil right and therefore it is considered to be
wrong against a person to whom the damage has been caused. Crime, on the other hand, is a
public wrong.

Secondly, in tort the injured party himself brings an action against the wrongdoer whereas, in
crime, the wrongdoer is prosecuted by the state even though the victim, in this case, is also an
individual.

The difference between a tort and a contract is as follows:

Firstly, in contract, the parties, with their free consent, undertake to perform certain duties
while in tort; the duties are imposed by law.

Secondly, in the contract, the contracting parties owe a duty to each other only. A duty not to
commit a tort is owed to persons generally and not to any particular individual.

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Also, a tort is different from breach of trust as in tort, the damages are unliquidated but in
breach of trust, they are liquidated as they are ascertainable before the beneficiary brings an
action against the trustee.
Essentials of a tort:
There are two essentials to commit a tort:

1. Act or Omission: To make a person liable in tort, he must have committed some act or
omission in the performance of his legal duty. For example, entering someone’s property
without any justification or defaming a person of his reputation. These acts result in torts of
Trespass and Defamation.
2. Legal Damage: To be successful in an action for tort, the plaintiff has also to prove legal
damage or an injury. Unless there is a violation of a legal right, an action under the law of torts
cannot lie.
The legal damages are of two types:

(A) Injuria Sine Damno: It means a violation of a legal right without causing any damage to
the other person. Since there is a violation of a legal right; it is actionable even without proof
of damage.
A landmark case will help better understand this principle:

Ashby v. White
In this case, the defendant, a returning officer in an election, wrongfully refused to take the
vote of the plaintiff, an eligible voter. The plaintiff didn’t suffer any loss by this refusal as the
candidate for whom he wanted to vote, won the election. The defendant was, however, held
liable, because the plaintiffs’ legal right had been violated.

(B) Damnum Sine Injuria: It means causing damage without the infringement of a legal right.
Unless there is an infringement of a legal right, mere causing damage isn’t actionable.
The following case law will help us better understand this principle:
Gloucester Grammar School Case:
In this case, the defendant set up a rival school to that of the plaintiffs. Because of the
competition, the plaintiffs’ had to reduce their fees from 40 pence to 12 pence per scholar per
quarter. It was held that the plaintiffs’ had no remedy for the loss thus suffered by them.

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Whether mental element is of any relevance in Tort:
Generally, under criminal law, Mens Rea or a guilty mind is a necessary element for liability.
But the same is not the case with the Law of Torts. Torts such as assault, battery, false
imprisonment, deceit, malicious prosecution and conspiracy require the state of mind of a
person and are relevant to ascertain the liability while torts such as negligence or defamation
do not require a mental element and thus it is completely irrelevant.

Types of Damages:
Damages refers to money paid by one side to the other; it is a legal remedy.

1. Nominal Damages: In the situation where there has been a breach but the non-
breaching party has really suffered no loss or cannot prove what his loss is, he is
entitled to nominal damages.
2. Compensatory Damages: Damages paid to directly compensate the
nonbreaching party for the value of what was not done or performed are
compensatory damages.
3. Punitive Damages: Punitive damages are those awarded for the purpose of
punishing a defendant in a civil action, in which criminal sanctions are of course
unavailable. They are proper in cases in which the defendant has acted willfully
and maliciously and are thought to deter others from acting similarly.
4. Contemptuous Damages: In these type of damages, the Court recognizes that the
right of the plaintiff is violated but to show that the suit brought by the plaintiff is
of such a trivial nature that it has only wasted the time of the Court, the Court
awards a meager amount to the plaintiff as damages.
Conclusion:
Thus, the law of torts imposes a duty to respect the legal rights vested in the members of the
society and the person making the breach of duty is said to have done the wrongful act and is
penalized under this law. The law of torts is mostly used in countries like the USA, Canada,
and others while India uses only a part of it which is the “Consumer Protection Act”.

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 General Defences in Law of Torts

Introduction
Every Suit in the Court of Law involves two parties, one who has filed a suit against another
and the other who is defending himself against such suit. In Law of Torts, such parties are
called Plaintiff and Defendants. After the suit is filed by the plaintiff alleging that defendant
has committed a tort, it is for the plaintiff to prove that his legal rights have been violated by
the wrongful actions of the defendant and once all essentials are met and his guilt is proved,
the only way the defendant can save himself and get absolved of liability is through the General
Defences that are available in Law of Torts which have evolved over time.

What are General Defences?

General Defences are basically set of those defences which have evolved over time and
accepted by the courts from time to time which can be taken as excuses in order to escape the
liability in torts as long as the defendant’s action qualify the terms and conditions that are
attached with respective defences. There are some defences which are particularly associated
with certain offences, like in case of defamation, defence of truth, privilege and fair comment
are available, while there are other defences can be used in all or many of the torts like Consent
and Third Party’s Fault.
Some of the major General Defences in Law of Torts are as follows:

1. Volenti Non Fit injuria i.e. Consent

2. Plaintiff is the Wrongdoer

3. Inevitable Accident

4. Act of God

5. Private Defence

6. Necessity

7. Statutory Authority

Volenti Non Fit Injuria (Consent)

The Latin maxim Volenti Non Fit Injuria means a person who is willing to suffer and give
consent for suffering harm and injury caused by actions of defendant cannot complaint against
such injury to his legal rights. In case where the plaintiff, with his own consent suffer the harm,
he cannot make the defendant liable for such injury and the defendant can in turn use the

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defence of Volenti Non Fit Injuria to be absolved of any liability which may arise. The logical
reasoning behind this defence of defendant is that a person cannot enforce such rights which
he himself has wilfully and with his consent waived. Such kind of wilful consent may be in
express or implied terms.

In the case of Hall v. Brooklands Auto Racing Club, there was a car racing going on and the
plaintiff was a spectator of that race going on the track belonging to defendant. Two of the cars
collided leading to one being skidded towards the spectators as a result of which the plaintiff
was injured. In the action brought by him, the court held that there was plaintiffs wilful consent
and he knowingly took the risk of watching the event in which such injury can be foreseen and
the defendant was not liable.
However the consent must be free and not obtained by fraud or compulsion. In R. v. Williams,
the music teacher raped a 16 year old girl under the misrepresentation by falsely pretending
that it would improve her voice. The consent wasn’t free in such case and the teacher was held
liable. In addition, mere knowledge does not imply consent. In Smith v. Baker, the plaintiff
being an employee for working on drill for cutting stones was busy in work while some stones
were being conveyed from one end to the other passing over his head and a stone fell on him
causing injuries. Although he had knowledge of stones being carried, the court held that mere
knowledge didn’t amount to consent and defendant were held liable.
Plaintiff being the Wrongdoer
The Latin Maxim ‘Ex Turpi Causa Non Oritur Actio’ means ‘from an immoral cause, no action
arises’. The defendant is excused from his liability in torts when the act of the plaintiff himself
is wrong or illegal. In these cases, the plaintiff cannot claim legal remedy from the court as he
himself was wrong in first place and his own actions led to the legal injury suffered by him.

In the case of Pitts v. Hunt, a rider aged 18 years encouraged his 16 year old friend for driving
fast under drunken state. The vehicle met an accident and the younger boy died and older
suffered injuries and brought action against relatives of deceased for compensation for injuries.
The court denied such plea of compensation as the plaintiff in this case was himself the
wrongdoer and the defendant can use this defence to get away from the liability.
Inevitable Accident
An Accident refers to an injury which is unexpected and if such an accident is of such a nature
that it could not have been avoided despite all precautionary measures and carefulness
exercisable by the defendant, then it is known as Inevitable Accident which serves as a defence

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for the defendant in order to absolve himself from any liability. The defence of Inevitable
Accident serves as a good and strong defence as the defendant is able to show that the legal
injury could not have been avoided in spite of taking all reasonable precautions and care and
not having any form of malicious intention to harm the other party.

In the case of Stanley v. Powell, both of them went for pheasant shooting during which the
defendant fired a bullet for shooting down a pheasant. However the bullet got reflected the oak
tree and hit the plaintiff resulting into serious injuries. On the action brought by the plaintiff
against the defendant, it was held by the court that the incident was an inevitable accident and
the defendant can be excused from any form of liability.
In the case of Sridhar Tiwari v. U.P. State Road Transport Corporation, as the bus belonging
to U.P.S.R.T.C. reached near a village, suddenly a cyclist appeared in front of the bus and the
day was such a rainy day that even after his application of brakes, the bus did not stop and in
turn, the rear portion of the bus collided with another bus coming from the other side. It could
be inferred that there was no fault on part of either bus drivers and they did their best for
stopping any accident. On the suit brought by the plaintiff, it was held that it was a case of
inevitable accident and the defendant U.P.S.R.T.C. could not be held liable.
Act of God/ Vis Major
Act of God also serves as a good defence in Tort law. The defence of Act of God remains valid
even against the rule of Strict Liability which emerged from the case of Rylands v. Fletcher.
The Defence of Act of God finds its usage in those cases in which an event occurs over which
the defendant has no control and the resultant damage is due to the natural forces. In simple
words it is defined as circumstances for which no human foresight could provide against and a
reasonably prudent person could not recognise the possibility of its happening. The damages
resultant are vitiated by natural forces and does not make the defendant liable for such injuries.
There are two essential of Act of God:

1. The forces of nature should be at work:

In Ramalinga Nadar v. Narayan Reddiar, an unruly mob forcefully robbed all that was on
plaintiff’s lorry. On an action brought by plaintiff, the court observed that the defence of Act
of God could not be taken and the plaintiff was liable to get compensated.
However, In Nichols v. Marsland, the defendant had created artificial lake by collecting water
from natural stream but due to extraordinarily heavy rainfall, the embankments got destroyed

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and the water washed away all bridges of plaintiff. It was recognised by the court that it being
an extraordinary natural event, the defendant could not be held liable.
2. The occurrence must be extraordinary and unanticipated and could not be reasonably guided
against:

In Kallu Lal v. Hemchand, due to a normal rainfall, the building’s wall collapsed resulting in
the death of children of the plaintiff. The court observed that a rainfall of 2.66 inches is normal
and not extraordinary and thus the essential of the defence of Act of God are not met and the
defendant would be held liable
Private Defence
The law gives every individual the right of protecting his life and property and it extends to all
other person’s life and property as well. The Law of Torts recognises this right and any act on
the part individual in exercise of this right is held to be not giving rise to any form of tortuous
liability. The following are the two essential for this defence:

1. There needs to be a reasonable and imminent threat to life or property.

2. The force is used only with the purpose of protection and not for revenge.

3. Force used should be in proportion to the threat.

In the case of Bird v. Holbrook, the defendant had fixed spring guns around his garden without
any form of notice and thus the plaintiff, being unaware suffered injuries and brought action.
The court held that such fixation of spring guns without notice didn’t qualify as private defence
lacking essential and the plaintiff is entitled to compensation.
In Ramanuja Mudali v. M. Gangan, the defendant landowner had laid wires on land. When
the plaintiff crossed his land to go to his land, he received a shock leading to serious injuries
as there was no notice of such arrangements. Such act on the part of defendant does not qualify
as Private Defence making him liable.
Necessity
The General Defence of Necessity provide the defendant with the privilege to give rise to legal
injury to the plaintiff in in order to avoid greater harm. As per this defence, if an act is
intentionally done resulting in legal injury to another person in order to prevent greater harm,
the defendant would not be held liable.

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In case of Leigh v. Gladstone, the court observed that forcibly feeding a person who is on
hunger strike in prison amounts to necessity and the defendant cannot be made liable for
battery.
In the case of Cope v. Sharpe, in order to stop the fire from spreading in adjoining land, the
defendant entered the premises of plaintiff. On a suit brought by plaintiff alleging trespass, the
court observed that the defendant to be having no liability for the same and defence of Necessity
served as a valid defence.
Statutory Authority:
An act which is authorised by the act or statutes passed by concerned authorities does not
become actionable even though otherwise it would amount to tort. It serves as a total defence
from liability of tort and the aggrieved plaintiff is not left with any remedy other than any
compensation that may be provided under concerned statute.

In the case of Vaughan v. Taff Valde Rail Co., the sparks from the railway engine of
defendant’s company authorised, set fire the woods of plaintiff in the adjoining land. Since the
authority was provided under statute, the defendant was held not to be having any liability tort
as the defence of statutory authority was invoked.
In Smith v. London and South Western Railway Co., railway company’s servants left
trimming of hedges of railway track in negligence and the sparks thus generated were carried
by wing to neighbouring cottage resulting in fire. Here, it was held that the defence of statutory
authority does not arise when there was negligence which was not covered under statute and
thus defendants were liable for the damages.
Conclusion
Similar to the remedies available to aggrieved parties, the importance of Defences for alleged
parties for an important part of any law. Many a times, the defendant are innocent and victim
of circumstances such that liability arises for their action after all essentials are met in Torts
law. The General Defences in Law of Torts for an important part in this law which help the
defendant to get absolved of any form of liability that may arise. For their proper application
in individual cases, a proper understanding of such defences is important.

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 Negligence
Introduction

It is already known that the Indian law of torts is based on the English common law. Thus, the
law relating to negligence is adopted and modified by the courts of India on the principles of
justice, equity and good conscience. The term Negligence is derived from the Latin word
negligentia, which means ‘failing to pick up’. In the general sense, the term negligence means
the act of being careless and in the legal sense, it signifies the failure to exercise a standard of
care which the doer as a reasonable man should have exercised in a particular situation.
Negligence in English law emerged as an independent cause of action only in the 18th century.
Similarly in Indian law, the IPC, 1860 contained no provision for causing the death of a person
by negligence which was subsequently amended in the year 1870 by inserting section 304A.

Definition of Negligence

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the
plaintiff which results in undesired damage to the plaintiff.

In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do
something which a reasonable man would do or doing something which a prudent or reasonable
man would not do.

It can be characterized in three forms-

Nonfeasance: It means the act of failure to do something which a person should have done.
For example, failure to carry out the repairs of an old building when it should have been done.

Misfeasance: It means the act of not doing an action properly when it should have been done
properly. For example, Doing the repairs of an old building but doing so by using very poor
quality materials creating a major probability of a collapse which injures people.

Malfeasance: It means the act of doing something which should not have been done in the first
place itself. For example, using products that are not allowed and combustible to carry out the

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repairs of an old building, therefore, converting the building into a firetrap leading to an
accident.

Illustration

Z, An owner of a big dog requests his friend X to take care of the dog while he is away. X
leaves the dog unattended who attacks a passerby badly injuring him. Here it will be said that
the act occurred due to the negligence of X.

In the general sense, the extent of liability in tort is determined by the number of damages a
party has incurred. Consequently, in criminal law, the extent of liability is determined by the
amount and degree of negligence.

How is Criminal Negligence Different from Civil Negligence?

• Criminal negligence is said to take place when a person acts in a particular way
which is an extreme departure from which a reasonable person would act in a similar
or same circumstance. The difference in civil negligence is that the conduct may not
be seen as a radical departure from the way a reasonable person would have
responded.

• Civil negligence occurs when a person fails to exercise ordinary care or due
diligence but criminal negligence relates to a conduct that is considered so extreme
and rash that it is a clear divergence from the way an ordinarily prudent person
would act and is considered to be more than just a mistake in judgment or distraction.

• In civil negligence, there is a lesser burden of proof because the plaintiff in such a
case only has to prove that it is most likely that the defendant was negligent. But in
criminal negligence, the plaintiff has to prove “beyond a reasonable doubt” that the
defendant was negligent which is the highest standard of proof which means that the
evidence is so strong that there is no other logical explanation besides the fact that
the defendant acted with criminal negligence.

• The punishment for a person who was liable in a civil negligence case only extends
to the extent of damage caused to the plaintiff i.e compensation for the damages.
In criminal negligence cases, the punishment is much more serious and can be

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 convicted for a prison term, fine and probation supervision. Example the punishment
for criminal negligence amounting to death under section 304A of IPC can extend
to 2 years of jail and fine or both.

• For example, if someone driving a vehicle under the influence of drugs and alcohol
and caused the death of an individual, it would amount to criminal negligence since
this is considered extreme carelessness on their part. But if a housekeeper in an
office is mopping the floor and has forgotten to keep a ‘wet floor’ signboard, any
accident that occurs would amount to civil negligence as there was only a lack of
due diligence on the part of the housekeeper but not extreme neglect.

Essentials of negligence

To commit the tort of negligence, there are primarily 6 main essentials that are required. An
act will be categorized as negligence only if, all the conditions are satisfied namely –

1) Duty Of Care

It is one of the essential conditions of negligence in order to make the person liable.
It means that every person owes, a duty of care, to another person while performing an act.
Although this duty exists in all acts, but in negligence, the duty is legal in nature and cannot be
illegal or unlawful and also cannot be of moral, ethical or religious nature.

2)The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and the plaintiff
and requires the defendant to act in a certain manner toward the plaintiff. It is not sufficient
that the defendant owed a duty of care towards the plaintiff but it must also be established
which is usually determined by the judge.

In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down from a tram
car and while she was being helped in putting her basket on her back, a motor-cyclist after
passing the tram collided with a motor car at a distance of 15 yards which was on the other side
of the tram. The motorcyclist died instantly and the plaintiff could not witness the accident or

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the dead body since the tram was standing between her and the place where the accident
occurred. She had only heard the sound of the collision and once the body had been removed
from the place of accident, she visited the place and saw some blood which was left on the
road. As a reaction to this incident, she suffered a nervous shock and gave birth to a still-born
child of 8 months because of which she sued the representatives of the deceased motorcyclist.
It was held that the deceased had no duty of care towards the litigant and therefore she could
not claim any damages from the deceased’s representatives.

The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty
of care to our neighbor or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the
person suffering the damage an action for negligence could succeed since the plaintiff was
successful in her claim that hat she was entitled to a duty of care even though the defective
good i.e a bottle of ginger beer with a snail in it was bought, not by herself, but by her friend.

3)Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he must
also establish that the defendant breached his duty to the plaintiff. A defendant breaches such
a duty by failing to exercise reasonable care in fulfilling the duty. In other words, the breach of
a duty of care means that the person who has an existing duty of care should act wisely and not
omit or commit any act which he has to do or not do as said in the case of Blyth v. Birmingham
Waterworks Co, (1856). In simple terms, it means non-observance of a standard of care.

In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)

A very old clock tower situated right in the middle of a crowded area of Chandni Chowk
suddenly collapsed thereby causing the death of many people. The clock tower was 80 years
old although the normal life span of the clock tower should have been 40-45 years. The clock
tower was under the control of The Municipal Corporation of Delhi and they had a duty of care
towards the citizens. By ignoring to repair the clock tower, they had breached their duty of care
toward the public and were thereby liable

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4)Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the liability to prove
is that the defendant’s violation of duty was the actual cause of the damages incurred by him.
This is often called the “but-for” causation which means that, but for the defendant’s actions,
the plaintiff would not have incurred the damages. For example, When a bus strikes a car, the
bus driver’s actions are the actual cause of the accident.

5)Proximate cause

Proximate cause means “legal cause,” or the cause that the law recognizes as the primary cause
of the injury. It may not be the first event that set in motion a sequence of events that led to an
injury, and it may not be the very last event before the injury occurs. Instead, it is an action that
produced foreseeable consequences without intervention from anyone else. A defendant in a
negligence case is only responsible for those damages that the defendant could have foreseen
through his actions.

6)Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It should also be
proved that the failure of the defendant to exercise reasonable care resulted in damages to the
plaintiff to whom the defendant owed a duty of care.

The harm may fall into the following classes:-

a.) Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.

When such damage is proved, the defendant is bound to compensate the plaintiff for the
damages occurred.

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In the case of Joseph vs Dr. George Moonjely (1994) The Kerela high court awarded damages
amounting to Rs 1,60,000 against a surgeon for performing an operation on a 24-year-old girl
without following proper medical procedures and not even administering local anaesthesia.

Res ipsa loquitur

Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court to determine
that the negligence of the defendant led to an unusual event that subsequently caused injury to
the plaintiff. Although generally the duty to prove that the defendant acted negligently lies
upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial
facts, it becomes the burden of the defendant to prove that he was not negligent.

This doctrine arose out of the case of Byrne vs Boadle(1863)

The plaintiff was walking by a warehouse on the road and suffered injuries from a falling barrel
of flour which rolled out of a window from the second floor. At the trial, the plaintiff’s attorney
argued that the facts spoke for themselves and demonstrated the warehouse’s negligence since
no other explanation could account for the cause of the plaintiff’s injuries.

Thus the following are the three essential requirements for the application of this maxim-

1)The thing causing the damage must be under the control of the defendant or his servants
2) The accident must be such as would not have happened in the ordinary course of things
without negligence.
3) There must be no evidence of the actual cause of the accident.

Defenses available in a suit for negligence

1)Contributory negligence by the plaintiff

Contributory negligence means that when the immediate cause of the damage is the negligence
of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant
can use it as a defense. This is because the plaintiff in such a case is considered to be the author
of his own wrong. It is based on the maxim volenti non fit iniuria which states that if someone

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willingly places themselves in a position which might result in harm, they are not entitled to
claim for damages caused by such harm.

The plaintiff is not entitled to recover from the defendant if it is proved that-

1)The plaintiff by the exercise of ordinary care could have avoided the consequence of the
defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s negligence by an
exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on the defendants
part and the former cannot sue the latter for the same.

The burden of proving contributory negligence rests on the defendant in the first instance and
in the absence of such evidence, the plaintiff is not bound to prove its non-existence

In the case of Shelton Vs L & W Railway (1946), while the plaintiff was crossing a railway line,
a servant of the railway company who was in charge of crossing shouted a warning to him. Due
to the plaintiff being deaf, he was unable to hear the warning and was consequently injured.
The court held that this amounted to contributory negligence by him.

2) An Act of God

An Act of God is a direct, violent and sudden act of nature which by any amount of human
foresight could have been foreseen and if foreseen could not by any amount of human care and
skill have been resisted. Thus such acts which are caused by the basic forces of nature come
under this category.For example storm,tempest,extraordinary high tide,extraordinary rainfall
etc.

If the cause of injury or death of a person is due to the happening of a natural disaster, then the
defendant will not be liable for the same provided that he proves the same in the court of law.
This particular defence was talked in the case of Nichols v. Marsland (1876) in which the
defendant had a series of artificial lakes on his land. There had been no negligence on the part
of the defendant in the construction and maintenance of the artificial lakes. Due to
unpredictable heavy rain, some of the reservoirs burst and swept away four country bridges. It

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was held by the court that the defendant could not be said to be liable since the water escaped
by the act of God.

3) Inevitable Accident

An inevitable accident can also be called as a defense of negligence and refers to an accident
that had no chance of being prevented by the exercise of ordinary care, caution, and skill. It
means a physically unavoidable accident.

In the case of Brown v. Kendal, (1850) the plaintiff’s and defendant dogs were fighting and
their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a
stick and accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff
brought suit against the Defendant for assault and battery. It was held that the injury of the
plaintiff was as a result of an inevitable accident.

Conclusion

Negligence as a tort has evolved from the English law and accepted by the Indian law as a
substantially important tort. As discussed negligence is of two types, civil and criminal and
each has various repercussions. In order to prove that an act was negligent, it is necessary to
prove all the essentials namely duty, breach of duty, damages and actual and proximate cause.
An important maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a
negligent act cannot be explained. Also, the defences in a suit for negligence can be used by
the defendant to defend himself from a suit issued by the plaintiff.

Nuisance

Introduction

A person in possession of a property is entitled to its undisturbed enjoyment as per law.

However, if someone else’s improper use or enjoyment in his property ends up resulting into
an un lawful interference with his enjoyment or use of that property or of some of the rights
over it, or in connection with it, we can say that the tort of nuisance has occurred. Nuisance is
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an injury to the right of a person’s possession of his property to undisturbed enjoyment of it
any results from an improper usage by another individual. Nuisance is a word that everybody
understands and we can say that nuisance in common parlance means nothing more than
inconvenience to people or to another. The law recognizes that minor inconveniences should
be endured as they are inevitable; example if you build your house along a high way, cars will
always pass with their horns hooting.

Meaning and Definition

The word Nuisance is derived from the French word ‘Nuire’ which means to annoy or hurt. It
is an unlawful interference with a person’s use or enjoyment of land. Under normal
circumstance, a person is entitled to the full and reasonable enjoyment and use of this property
tangible, intangible, movable or immovable, whatsoever. This being his legal right cannot be
taken away without lawful justification. Contrary to the provided protection if someone
unlawfully interferes with this entitlement of a person he/she commits a tort of Nuisance. As
per the most accepted definition of Nuisance which is the one given by Bermingham, Nuisance
is an unlawful interference with a person’s use and enjoyment of land, or of some right over,
or in connection with it. Hence it is an injury or inconvenience faced by a person in the use of
his property because of another person who unreasonably uses his own property in a way which
negatively affects the former. According to Stephens “Nuisance is anything done to the hurt or
annoyance of the lands, tenements of another, and not amounting to trespass. Another Jurist
Salmond expresses “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, fumes, smoke, gas, noise, heat, vibration, electricity,
disease, germs, animals. Nuisance in Legal Terms In law, nuisance has a more restrictive
meaning than it has in an ordinary parlance. It is not all inconveniences that will succeed in an
action for nuisance. Minor inconveniences which are usually as a result of normal human
interaction in the society are not actionable in law. The law always tries to strike a balance
between the conflicting interest of the plaintiff and the defendant in the society. So we can
define the tort of nuisance as an act which gives rise to unlawful, unwarranted or unseasonable
annoyance or discomfort to the plaintiff and which results in damage to the property of the
plaintiff or interfere with his use and enjoyment of his land. Essential Elements of NuisanceFor
making an act of Nuisance actionable under the law of torts the following essentials must be
satisfied-

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• Wrongful Act by the DefendantFor the Action against Nuisance to arise the first essentiality
is the conduct of a wrongful act by the Defendant. This may include any action which is prima
facie not legal and unreasonable in the eyes of a prudent man. Caveat – If the Plaintiff is extra
sensitive and finds the action of the Defendant to be unreasonable due to his sensitivity, which
otherwise is reasonable as per a prudent man, the action for Nuisance cannot arise.

• Damage/Loss/Inconvenience caused to the PlaintiffThe next essentiality requires a

substantive damage or inconvenience to be caused to the Plaintiff. The maxim “De minimis
non curat lex” comes into play and provides that lw shall not consider trifles or minimal damage
claimed by the plaintiff due to his own sensitivity. Nevertheless, if the act of the Defendant
involves the hampering of a Legal Rights of the plaintiff, nuisance comes into play. Case Law:
In Ushaben V. Bhagyalaxmi Chitra Mandir, where the Plaintiff sued the Defendant against the
screening of the movie “Jai Santoshi Maa” claiming that it hurts the Religious sentiments of a
particular Hindu community, the court dismissed the Plea stating that hurt to religious feeling
was not an actionable wrong and the Plaintiff is free to not watch the Movie again. Hence it
was held that in order to claim damages for Nuisance, the interference shall be in a state of
continuing wrong. In Halsey V. Esso Petroleum Co. Ltd, where the defendant’s factory emitted
smokes, oil, fumes and smell and polluted the environment along with harming the plaintiff’s
health because of his own sensitive health issue, the former were held liable to the latter only
for the emission of smoke, oil and fume and not for health hazard. Kinds of Nuisance Nuisance
as a tort is further categorized into two types- Private Nuisance and Public Nuisance, both
having their own areas of actions and types of damages. Private nuisance Private nuisance
protects the interest of the occupier of land or premises in the use and enjoyment of his land.
This type of nuisance usually emanates from the defendant’s private land or his actions in his
private capacity. Accordingly, a plaintiff must show that he has some interest in the land in
question. Thus, the land must not be public land. The law of private nuisance seeks to strike a
balance between two conflicting interests; that of an occupier in the using his land as he thinks
fit and that of his neighbour in the quiet enjoyment of his land. Thus, a person must not use his
property is such a way that will cause inconvenience to his neighbours. In an action for private
nuisance, the court considers the following: i) Whether the injury complained of is sensible in
the case of material damage to property and in the case of interference with enjoyment of land,
whether the injury is substantial. ii) Whether the conduct of the defendant is unlawful,
unwarranted or unreasonable. Elements which constitute a private nuisance

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• The interference must be unreasonable or unlawful. It is meant that the act should not be
justifiable in the eyes of the law and should be by an act which no reasonable man would do.

• Such interference has to be with the use or enjoyment of land, or of some rights over the
property, or it should be in connection with the property or physical discomfort.

• There should be seeable seeable damage to the property or with the enjoyment of the property
in order to constitute a private nuisance. Rose v. Miles (1815) 4M & S.101 The defendant had
wrongfully obstructed a public navigable creek which obstructed the defendant from
transporting his goods through the creek due to which he had to transport his good through land
because of which he suffered extra cost in the transportation. It was held that the act of the
defendant had caused a public nuisance as the plaintiff successfully proved that he had incurred
loss over other members of the society and this he had a right of action against the defendant.
A nuisance may be in respect of either property or physical discomfort 1- Property In the case
of a nuisance with respect to the property, any sensible injury to the property will be enough to
support an action for the damages. 2- Physical discomfort In a suit of nuisance arising out of
physical discomfort, there are two essential conditions required.

• In excess of the natural and ordinary course of enjoyment of the property. The usage by the
third party should be of out of the natural course of enjoyment from one party.

• Interfering with the ordinary conduct of human existence. The discomfort should be of such
a degree that it would affect an individual in the locality and people would not be able to put
up or tolerate with the enjoyment.

Public nuisance

Public nuisance refers to that which affects the general public or a section of the public. It is
that which affects the public segment or class of the public by reason that it is indiscriminate
in its effect or widespread. A nuisance may become public nuisance either from its source or
its final effect or destination. Again, a nuisance that affects a class or a segment of a society is
public nuisance and whether the number of persons affected is sufficient to merit public
nuisance is a question of facts depending on the facts and circumstances of each case.
Everything is to be looked at from a reasonable point of view. Instances, of public nuisance

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include obstruction of highway or public roads, public waterways, noises pollution, oil spillage
from the activities of multi-national oil companies and carrying on obnoxious business like
operating a brothel in a GRA A public nuisance is usually a crime (see section 234 of the
Criminal Code and sections 192 & 194 of the Penal Code) which can only be prosecuted by
the Attorney General in his capacity as the custodian of public right. In other words, a private
person has no right to prosecute the crime of public nuisance; the Attorney-General prosecutes.
However, for a private person to sue for public nuisance, he has to show that he has suffered a
particular or special loss/damage over and above that suffered by other members of the public.
In the case of Daodu v. NNPC, the Supreme Court, per Qguegbu JSC, stated the position of
the law thus, “an obstruction of public highway or hindering the free passage of the public
along the highway is a public nuisance and a private individual has a right of action if he can
prove that has sustained particular damage other than and beyond the general inconvenience
and injury suffered by the public and that the particular damage which he sustained was direct
and substantial.” The requirement of proving particular damage will be satisfied if the plaintiff
can show that he has suffered damage which is appreciable greater in degree than any suffered
by the general public. It is germane to note that, many a time a class or section of the public
will sue for public nuisance and usually the action will fail as the court will always say that a
class action is improper in such cases. This is because all of them put together are private
persons and they cannot enforce public nuisance. It is better to sue individually by trying to
prove that you have suffered over and above all others. A similar decision was reached in
Adediran v. Interland Transport Ltd. (supra), where the plaintiffs/appellants sued in a
representative capacity for themselves and on behalf of residents of a housing estate; the
Supreme Court holding that although all the injuries complained of arise from the same
nuisance complained of, each separate injury is a distinct tort. Remedies for Nuisance The
following remedies exist for nuisance. They are

1. Abatement of Nuisance: This refers to self-help in order to stop nuisance. Generally self-
help is not allowed by the court or the law. The court usually frowns at the remedy of self-help
This is to avoid chaos in the society. In minor cases of nuisance, self help as a remedy may be
allowed by law considering that court cases are usually expressive and may take long to
determine.

2. Injunction: This is the most important judicial remedy in cases of nuisance. There are many
types of injunction – a. Interim injunction – obtained pending the determination of the

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interlocutory injunction (applicable in urgent cases). b. Interlocutory injunction – obtained
pending the determination of the final injunction. c. Final injunction – this exists to prohibit
one from doing something. d. Prohibitory injunction – this exists to prohibit one from doing
something. e. Mandatory injunction – this exists to mandate one to do something. Injunction is
a discretionary remedy and the court has discretion to grant or refuse injunction so that even if
one has made out a good case for the grant of injunction, the court may still find a good reason
to refuse injunction. However, the court’s discretion must be exercised judiciously and
judicially. Thus, in the case of Miller v. Jackson (1977) 3 All ER 338, a village

3. Damages: This is the monetary compensation for any loss or injury occasioned to the
plaintiff by reason of the nuisance. There are many types of damages, namely a. Aggravated
damages b. Nominal damages c. Special damages Defences to an Action for Nuisance It is
germane to note that some of the defences in nuisance are strictly speaking not defences but
only go to show that nuisance has not been proved. The defences are; i) That the act complained
of is not unreasonable, unjustifiable, unwarranted or unlawful. ii) That there was consent of the
plaintiff or volenti non fit injuria. Note generally that it is not a defence that the plaintiff came
into the nuisance but in appropriate cases the court may use it as a basis for refusal or injunction
such as in Miller v. Jackson. iii) Prescription – that is the defense in law which is to the effect
that the plaintiff has slept over this right for too long and has therefore lost his right to sue. At
common law in England, where nuisance lasts for 20 years, te plaintiff can no longer sue. iv)
Contributory negligence. v) Act of a stranger: that is, that the plaintiff has not made out any
case against the defendant, he has only succeeded in making out a case against a stranger who
cause the nuisance. vi) Inevitable accident. vii) Act of necessity. viii) Statutory authorization:
that is power given by statute. In exercising such powers, the defendant must ensure that all
reasonable care and skill is used and it he does not go outside the powers given by the statute.
Again, statutory defences are usually construed strictly against the person exercising the power
so as to protect the citizens. See the case of Ekemode v. Alausa where a public officer was
given power to clear inland waterways. In exercising that power he removed some canoes from
the water but in the process he damaged a particular canoe and the court held that the power to
remove a canoe is incidental to the power to clear the waterway but damaging the canoe is not
part of the powers given to him by statue, he was therefore liable for the damage. All in all, it
is germane to note that in most cases of oil spillage, the plaintiff would not know whether to
sue for negligence, for nuisance, whether public or private or under the rule in Rylands v.
Fletcher. On how to bring the action, a lot depends on the facts of each case; but, it may be

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wiser to sue for all in alternatives, and also add a claim simply for damages on the basis of Ubi
Jus lbi Remedium. The concept of nuisance relates to the day to day activities of an individual.
The laws made against Nuisance are almost uncodifed save the criminal aspect of Public
Nuisance. Nuisance as a tort got comprehensiveness through a plethora of judgments along
with the works of many eminent jurist. India were once a British colony has relied heavily on
the English judgments to understand and develop the concept of this tort. However, it has also
amended and modified various aspects of interpretation, depending upon its own geographical,
cultural and economic diversity in order to strive for providing justice to almost each of its
people and maintain the reign of Rule of Law along with Justice Equity and good conscience

DEFAMATION

Man’s reputation is considered to be his property, more precious than any other property.
Defamation is an injury to reputation of a person. Defamation is customarily classified into, (a)
libel and (b) slander. Broad distinction between the two is that libel is addressed to the eye
while as slander to the ear. Slander is the publication of defamatory statement in a transient
form. Examples of it may be spoken words. Libel is a representation made in some permanent
form e.g. writing, printing, picture, effigy or statute. In a cinema film not only the photographic
part of it is considered to be libel but also the speech which synchronises with it is also a libel.
In Youssoupoff v. M.G.M. Pictures Ltd., [(1934) 50 T.L.R. 581], a film produced by an English
Company, a lady, Princess Natasha, was shown as having relations of seduction or rape with
the man Rasputin, a man of worst possible character. It was observed that so far as photographic
part of the exhibition is concerned, that is the permanent matter has to be seen by the eye, and
it is proper subject of an action for libel, if defamatory. Under English Law, the distinction
between libel and slander is material for two reasons; 1. Under criminal law, only libel has
been recognized as an offence. Slander is no offence. 2. Under law of torts, slander is
actionable, save in exceptional cases, only on proof of special damage. Libel is always
actionable per se i.e. without the proof of any damage. Slander is also actionable per se in the
following four exceptional cases--- 1. Imputation of criminal offence to the plaintiff 2.
Imputation of contagious or infectious disease to the plaintiff which has effect of preventing
others from associating with the plaintiff 3. Imputation that the person is incompetent,
dishonest, or unfit in regard to the office, profession, calling, trade or business carried on by
him 4. Imputation of unchastity or adultery to any woman or girl. Requisites of Defamation:

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The constituent elements of defamation are: a. the words must be defamatory b. the defamatory
words, should directly or indirectly refer to the person defamed, and c. publication of the words
by any medium should take place (a)Defamatory Words: The defamatory words or statements
are those which cause an injury to reputation. Reputation is injured when one is lowered in the
estimation of members of the society generally or when one is avoided by others or others shun
his company. In short, an imputation which exposes the aggrevieved person to disgrace,
humiliation, ridicule or contempt, is defamatory. The criterion to determine whether a
statement is defamatory or not, is “how do the right thinking members of the society think”? If
they consider the statement as disgraceful, humiliating, ridiculous or contemptuous, the
statement is defamatory. If the statement is likely to injure the reputation of the aggrieved
person, it is no defence on the part of the defamer that he never intended to do so. Words which
merely hurt feelings or cause annoyance but in no way cast reflection on reputation or character,
are not libelous. Vulgar abuses uttered as mere abuse and not understood by the person who
hears them as defamatory, though they hurt one’s pride. Many a time, people do not directly
use defamatory words, but utter defamatory words in innuendoes. Innuendoes are those words,
which appear innocent but contain some secondary or latent meaning which is defamatory.
Thus if A says to B in the presence of P that ‘P is very honest man, he could never have stolen
anything.’ The statement will be defamatory if from this, B understood that P was a dishonest
man. If the words or statements are defamatory, it is immaterial with what intention they are
uttered or circulated. In Morrison v. Ritetise, [(1902) 4 F 654], one R in good faith published
a mistaken statement that M a lady, had given birth to twins. The fact of the matter was that M
was married only two months back. The statement was held defamatory. b.Words Must Refer
To The Person Defamed: In any action for defamation, the person defamed must establish that
the defamatory words or the statement referred to him. In other words, defamatory statement
was such that the defamed person would reasonably infer that the statement was directed
against him. In Jones v. Holton & Co., [(1909) 2 KB 444], it was observed that if libel speaks
of a person by description without mentioning the name, in order to establish a right of action,
the plaintiff must prove to the satisfaction of the jury that ordinary readers of the paper, who
knew him, would have understood that it referred to him. A good illustration is provided by
Newstead v. London Express Ltd., [(1939) 4 All ER 319], in the newspaper a news item
appeared thus: ‘Harold Newstead, a Camberwell man, has been convicted for bigamy.’ The
news was true to Harold Newstead, Camberwell Barman. Another Harold Newstead,
Camberwell barber and his friend thought that it referred to him and brought a suit for
defamation. As the statement was understood as referring to Harold Newstead, Camberwell
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barber, the statement was held defamatory, though newspaper never intended him to be the
person. The state of English Law was considered unsatisfactory as it led to the conviction of
innocent person. Consequently the Defamation Act,1952 was passed unde which it was
established that the publisher of the statement did not intended to publish it concerning the
other man, or the words were not defamatory on the face of them and he did not know the
circumstances under which they were understood to be defamatory. He would not be liable.
Ordinarily there cannot be a defamation of a class of persons. If a person says: ‘lawyers are
liers’ or ‘all doctors are incompetent’, no lawyer or doctor can sue for defamation unless he
shows that these words were in reference to him. In Knupffer v. London Express Newspaper
Ltd., [(1944) 1 All ER 495], Lord Atkin observed: “There can be no law that a defamatory
statement made of a firm, or trustee, or the tenants of a particular building, is not actionable, if
the words would reasonably be understood as published of each member of the firm or each
trustee or each tenant. The reason as to why a libel published of a large or indeterminate number
of persons described by some general name fails to be actionable, is the difficulty of
establishing that the plaintiff was, in fact, included in the defamatory statement.” (c)Publication
of Defamatory material: No defamation will be constituted unless defamatory statement or
material is published. Publication does not mean publication in press or by leaflets. If it is
brought to the notice or knowledge of persons or even to a single person other than the defamed
person, amounts to publication. If a defamatory matter enclosed in an envelop is not
publication. Dictating a defamatory letter to stenographer or typist is publication, but not to the
private secretary. If a third person opens the letter not meant for him wrongly, for instance
father reads the latter meant for his son or servant reads letter meant for his master, there is no
publication. But if defamatory letter is written on a post card or telegram, it will amount to
communication of defamation, irrespective of the fact whether someone has read it or not. If a
letter is written in a language which the defamer does not understand and, therefore has to be
read by someone else, it amounts to communication. If one spouse writes a defamatory letter
to the other, there is no defamation, as there is no publication. In T.J. Ponnam v. M.C. Verghese,
AIR 1970 SC 1976, the husband wrote number of defamatory letters to his wife about his
father-in-law. The wife passed on these letters to his father. The father-in-law sued for
defamation. The husband claimed privilege, under section 122, Indian Evidence Act. The
Supreme Court took the view that if such letters fall into the hands of the defamed person, he
can prove them in any other manner and if proved, the action for defamation will lie. If a third
person writes a defamatory letter about one spouse to the other in such a manner that the former
is most likely to read it, there is sufficient communication. Defences to Defamation: 1.
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Justification or truth 2. Fair comment 3. Privilege 1.Justification or truth: In defamation there
cannot be better defence than that of truth, as the law will not permit a man to recover damages
in respect of any injury and character which he either does not or ought not to possess. The
deference is still available even though the statement is made maliciously. Defence is available
if the statement is substantially correct though incorrect in respect of certain minor details. In
Alexender v. North Eastern Rly.,[(1885)6 B & S 340], a news was published in the newspaper
that X has been sentenced to a fine of pond of 1 or three weeks imprisonment. In the alternative,
while in fact X was sentenced to a fine of pound 1 or 14 days imprisonment. It was held that
the statement in the press was substantially correct and no action lied. Obviously, if defamer
fails to prove the truth of statement, he is liable. 2.Fair comment: The second defence to an
action for defamation is that the statement was a fair comment in public interest. Comment
means expression of an opinion. The essentials of this defence are: a. It must be a comment,
i.e. expression of opinion b. Comment must be fair c. Comment must be in public interest
Comment and statement of facts are different. Comment is an expression of opinion on certain
facts and circumstances, and not statement of fact. For instance, after reading A’s book, B says
‘it is a foolish book.’ ‘It is an indecent book.’ ‘’A’ must be a man of impure mind.’ These are
comments. But if he says, ‘I am not surprised that A’s book is foolish and indecent and he is
weak and of impure mind.’ In former case, it is a comment and in the latter case , it is a
statement of fact. Since comments are always made on facts, it is necessary that facts
commented upon should be generally known or the commentator should make them known
before comments upon them. A says ‘B is guilty of breach of trust.’ This is a statement of fact
and must be true. A then adds, ‘B is, therefore, a dishonest man.’ This is a comment. But if
audience or public do not know the fact that B has been convicted for breach of trust, the latter
statement will be statement of fact. Comment should be fair. No comment can be fair which is
based on untrue facts. Thus, when commenting on play, it was stated that, ‘play potrays
vulgarity as it contents a scene of rape’, while in fact there is no such scene, the comment is
not fair. 3.Privilege This is also one of the fundamental principles that there are circumstances
when freedom of speech has privilege and even if it is defamatory it is protected. The
individuals right to reputation is subordinate to the privilege of freedom of speech. This
privilege may be; absolute or qualified. The Constitution of India grants privilege to any speech
made in parliament or state legislature and publication of the same under the authority of
parliament or state legislature is privileged. Similarly, in any judicial proceeding, no action for
defamation lies for words spoken or written, against judges, counsels, witnesses or parties. But
the words, oral/ written must be pertaining to proceedings. State communications are also
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privileged. Statements made by one government officer to another in the course of official duty
are privileged communications. So are the statements made by the ministers in the course of
their official duty. Even in the case of qualified privilege the statement should be made without
malice. The following conditions should be satisfied for claiming qualified privilege: a. The
statement must be made without malice, and b. The statement must be made on a privileged
occasion The following are considered as privileged occasions: a. When it is made in the
discharge of the duty b. Protection of interest, or c. It is a fair report of parliament, judiciary or
other public proceedings. Defining privileged occasion, the court in Adam v. Ward, [(1917)
AC 309], held; “A privileged occasion is, in reference to qualified privilege, an occasion where
the person who makes a communication has an interest or a duty, legal, social, or moral, to
make it to the person to whom it is made, and the person to whom it is made has a corresponding
interest or duty to receive it. This reciprocity is essential.’

TRESPASS TO THE PERSON

There are three main wrongs which fall under the umbrella of trespass to the person: assault,
battery and false imprisonment. They are intentional torts, meaning they cannot be committed
by accident. Although these descriptions sound like they are crimes, and indeed do share their
names with some crimes, it is important to remember that these are civil wrongs and not
criminal wrongs. A person liable in tort for assault, battery or false imprisonment will not face
a sentence. Instead, they will be ordered to pay damages to their victim.

Assault

Assault means physical contact. But in tort, an assault occurs when a person apprehends
immediate and unlawful physical contact. In other words, fearing that you are about to be
physically attacked makes you the victim of an assault. It is also necessary that an attack can
actually take place. If an attack is impossible, then despite a person’s apprehension of physical
contact there can be no assault. So a person waving a stick and chasing after another person
who is driving away in a car would not be an assault. It is also generally thought that words
alone cannot constitute an assault, but if accompanied by threatening behaviour the tort may
have been committed.

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Battery

If the physical contact that is apprehended in an assault actually takes place, then the tort of
battery has been committed. It is not necessary for the physical contact to cause any injury or
permanent damage to the victim, or even be intended to do so. The only intention required is
that of making physical contact. It is also not necessary for the tortfeasor, that is, the wrongdoer,
to actually touch the victim, so battery may be committed by throwing stones at someone or
spitting on them.

False Imprisonment

False imprisonment is the unlawful restraint of a person which restricts that person’s freedom
of movement. The victim need not be physically restrained from moving. It is sufficient if they
are prevented from choosing to go where they please, even if only for a short time. This
includes being intimidated or ordered to stay somewhere. A person can also be restrained even
if they have a means of escape but it is unreasonable for them to take it, for example, if they
have no clothes or they are in a first floor room with only a window as a way out. False
imprisonment can also be committed if the victim is unaware that they are being restrained, but
it must be a fact that they are being restrained. Defences to Trespass to the Person

1. Consent If a person consents to being physically contacted, then no tort of battery exists.
Consent may be given expressly by words or implied from conduct. A patient can give express
medical consent to their doctor before undergoing an operation which in other circumstances
might amount to a battery. Similarly, certain sports, such as rugby, on the face of it comprise a
continuous series of assaults and batteries. Clearly it would be absurd if the law allowed a
rugby player to sue the opposing team for trespass to the person. So a person who consents to
being physically contacted within the rules of a particular game is not a victim of a tort.
Deliberate acts of violence on the playing field, though, do not fall within this defence.

2. Necessity A wrongdoer may have a successful defence if they can show that it was necessary
to act in the way they did. In other words, there must be a sound justification for breaking the
law. A person who grabs another and drags them by force from the path of an oncoming
vehicle, and who by doing so prevents them from serious injury or death, is not liable in tort.
Similarly, a doctor who performs emergency surgery on an unconscious patient, who naturally
cannot consent, in order to save their life, may successfully argue that the battery was necessary
if the surgery performed was limited to that which was required to save the patient’s life.

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3. Self-Defence The defence of self-defence will only succeed if the force used was not
excessive and was reasonable and necessary in the circumstances to prevent personal injury.
Each case must be considered on its own facts. For example, if a person is attacked with a knife
it may be reasonable for them to defend themselves also with a knife, but not necessarily with
an automatic pistol. It will be for the courts to decide what is reasonable.

4. In Defence of Others Similarly to self-defence, a wrongdoer may successfully argue that

their actions were justified in order to assist a third party who they reasonably believe is in
immediate danger of being attacked. Most commonly this occurs when a parent is protecting a
child or one spouse is protecting another.

5. Defence for False Imprisonment If the victim was restrained under legal authority or
justification, or if the perpetrator was exercising their legal rights or duties, then there is a
complete defence to false imprisonment.

Trespass to Land

Trespass to land means interference with the possession of land without lawful justification. In
trespass, the interference with the possession is direct and through some tangible object.
Trespass is actionable per se and the plaintiff need not prove any damage for an action of
trespass.

To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage is
necessary.

Trespass may be committed-

• by entering upon the land of the plaintiff, or

• by remaining there, or

• by doing an act affecting the sole possession of the plaintiff in each case without
any justification.
Trespass could be committed either by a person himself entering the land of another person or
doing the same through some material object, e.g., throwing stones on another person’s land.
Allowing cattle to stray on another person’s land is also trespass. It is, however, no trespass
when there is no interference with the possession.

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If the interference is not direct but consequential, the wrong may be a nuisance. Eg.- to throw
stones upon one’s neighbour’s premises is wrong of trespass; to allow stones/smoke from a
ruinous chimney to fall upon those premises is the wrong of a nuisance. Planting a tree on
another’s land is a trespass but if a person plants a tree over his land and its roots or branches
escape on the land of the neighbour, that will be a nuisance.

Going beyond the purpose for which a person has entered certain premises- Perera v.
Vandiyar or crossing the boundary where he has the authority to go amounts to trespass. Thus,
if a person, who is allowed to sit in a drawing-room, enters the bedroom without any
justification, the entry into the bedroom is a trespass. However, if the area to which a person is
lawfully invited and one which is the prohibited area has not been properly marked, a person
does not become a trespasser merely by going beyond the area of invitation- Pearson v
Coleman Brothers.

Where there is a justification to enter the premises of another person, it is no trespass.

In Madhav Vithal Kudwa v. Madhavdas Vallabhdas, the defendant was the plaintiff’s
tenant. He was living on the first floor of the multi-storeyed building. He used to park his car
in the compound of the plaintiff’s building. The plaintiff contended that the parking of the car
in his compound without his permission was a trespass and sued for an injunction. It was held
that the tenant of a multi-storeyed building has a right to use the compound, if any, around the
building for parking of his car or other vehicles without causing any inconvenience to anybody
and that right can be exercised without the permission of the landlord.

A man is not liable for trespass committed involuntarily, for example, when he is thrown upon
the land by someone else but he is liable if the entry is intentional. Even an honest mistake may
be no excuse and a person may be liable for the trespass when he enters upon the land of another
person honestly believing it to be his own.

Trespass is a wrong against possession rather than ownership. Therefore, a person in actual
possession can bring an action even though, against the true owner, his possession was
wrongful. The trespasser is not allowed to take the defence of “jus tertii.”- title of 3rd person,
ie. the trespasser cannot plead that as between some third party and the person in possession,
the title of the third party is better. In Graham v. Peat, the plaintiff was holding the land under
a lease which was void but he was entitled to bring an action for trespass against the defendant

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who had entered that land without lawful justification, because, “any possession is a legal
possession against the wrongdoer.”

A person in possession, even if he himself is not the owner, can bring an action. An owner of
the land, who neither has possession nor any immediate right to possess it, cannot bring an
action for trespass- Baxter v. Taylor. A reversioner (a person who gets an estate back in
reversion- an interest that reverts back to the grantor after a certain period) may, however, sue
if by the trespass, injury of some permanent nature, which’ will affect his reversionary interest,
is likely to result.

Trespass is possible not only on the surface of the land but it is also equally possible by an
intrusion on the subsoil. Eg- Taking minerals from out of the subsoil. It is possible that the
surface may be in possession of one person and the subsoil of another. In such a case, if the
trespass is on the surface, the person in possession of the surface alone, and not the possessor
of subsoil, can sue for that. Similarly, for trespass on the subsoil, the possessor of the subsoil
alone can sue. However, digging a hole vertically in the land may amount to a trespass wherein
the action can be brought by each one of them.

Probably, an inevitable accident will be a good defence as it is there in case of trespass to

persons in chattels- domestic animals, cars, furniture- Holmes v. Mather.

Trespass ab initio — When a person enters certain premises under the authority of some law
and after having entered there, abuses that authority by committing some wrongful act there,
he will be considered to be a trespasser ab initio to that property. The plaintiff can, therefore,
claim damages, not only for the wrongful act subsequently done by the defendant but even in
respect of original entry which is now considered to be a trespass.

In order that the entry of a person to certain premises is treated as trespass ab initio, it is
necessary that the defendant must have been guilty of a positive wrongful act (misfeasance)
rather than a mere omission to do his duty (non-feasance). In Six Carpenters’ case, six
carpenters entered an inn and ordered some wine and bread. After having taken the same, they
refused to pay for that. They had done no act of misfeasance and mere non-payment being only
nonfeasance, there was held to be no trespass ab initio.

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Misfeasance must be such that will render the presence of the defendant on the premises as
wholly unjustified. The case of Elias v. Pasmore illustrates the point. In that case, the
defendants, certain police officers, entered the plaintiff’s premises to make a lawful arrest.
There they removed certain documents without having any lawful authority for that, which
was, therefore, an act of misfeasance. By their act of misfeasance, their presence there had not
become wholly unjustified because the arrest, i.e., the lawful purpose, had yet to be
accomplished. They were held trespassers only with regard to the documents which they had
seized and not trespassers ab initio to those premises.

Entry with a licence

Entering certain premises with the authority of the person in possession amounts to a licence
and the defendant cannot be made liable for trespass. Eg- Permitting a person to cut a tree on
one’s land.

Section 52, Indian Easements Act, 1882 defines ‘Licence’ as under :

“Where one person grants to another, or to a definite number of other persons a right to do, or
continue to do, in or upon the immovable property of the grantor, something which would, in
the absence of such right, be unlawful, and such right does not amount to an easement or an
interest in the property, the right is called a licence.”

After the licence is revoked, the licensee becomes a trespasser on land and must quit that place
within a reasonable time. For the purpose of the right of the licensor to revoke the licence, the
licences are considered to be of two kinds:

(i) a bare licence, and

(ii) a licence coupled with a grant.

A bare licence can be revoked, whereas a licence which is coupled with the grant cannot be
revoked. Eg.- A licence to see a picture is a licence coupled with the grant and the cinemas
authorities cannot revoke such a license. Similarly a licence to cut down a tree and carry it
away is an example of licence coupled with a grant. In certain cases, the licensor, by the terms
of the contract, express or implied, may agree that even a bare licence will also not be revoked.

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In Wood v. Leadbitter, the plaintiff having purchased a ticket went to see a horse race and the
defendants were the occupiers of the racecourse. While the races were still going on, the
defendants asked the plaintiff to leave the premises and on his refusal to comply with mat, he
was forcibly ejected by the defendant’s servants. The plaintiff brought an action for assault. It
was held that the revocation of the licence was effectual and after the revocation of the licence,
the plaintiff had become a trespasser and ejection of the trespasser out of the premises was not
an actionable wrong- Obsolete now.

The decision in Hurst v. Picture Theatres Ltd. is just to the opposite effect. The plaintiff,
after due payment, purchased a ticket to see a cinema show at the defendant’s theatre. He was
wrongly suspected of having entered without a ticket and was asked by the management to
leave the hall. On his refusal to do that, the defendant’s gatekeeper physically lifted him out of
his seat and then the plaintiff himself quietly walked out of the cinema hall. The plaintiff then
sued for assault and false imprisonment. The licence to the plaintiff, in this case, was considered
to be with a grant and it was held that the same could not be revoked. The revocation being
invalid, the plaintiff was not a trespasser to the defendant’s premises and as such, he was held
entitled to recover substantial compensation from the defendant for assault. In this case,
Buckley, L.J. was of the opinion that the decision in Wood v. Leadbitter was also an authority
for the rule that a licence coupled with a grant was not revocable. There was considered to be
no grant in Wood’s case for some other reason. The decision in Hurst’s case has been formally
approved by the House of Lords in Winter Garden Theatre Ltd, v. Millennium Productions
Ltd.

The Hurst’s case has been criticized on the ground that the damages would have been an
adequate remedy and no order for specific performance would have been issued.

Defences to Trespass
Any justifiable entry or interference will negative liability for trespass. Justification by law,
private defence, inevitable accident, license, necessity, parental authority, etc are well
recognised lawful defences for trespass. For eg, Policeman can enter a private house through
an open door late at night if he had reasonable grounds to believe that there is some disturbance
there which requires immediate investigation.

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Remedies

1. Re-entry
If a person’s possession had been disturbed by a trespasser, he has a right to use reasonable
force to get a trespass vacated. A person, who is thus entitled to the immediate possession, uses
reasonable force and regains the possession himself, cannot be sued for trespass. Ousting a
trespass by a person having a lawful right to do so is no wrong. Thus, in Hemmings v. Stoke
Poges Golf Club, the plaintiff had been in the employment of the defendants. On the
termination of the service, the plaintiff was given proper notice to quit the house. On his refusal
to do so, the defendants, by the use of reasonable force, themselves entered those premises and
removed the plaintiff and his furniture out of it. The defendants were held not liable.

1. Action for Ejectment

Section 6, Specific Relief Act, 1963 gives a speedy remedy to a person who has been
dispossessed of immovable property otherwise than in due course of law.

“If any person is dispossessed without his consent of immovable property otherwise than in
due course of law, he or any person claiming through him may, by suit recover possession
thereof, notwithstanding any other title that may be set up in such a suit. No suit under this
section shall be brought after the expiry of six months from the date of dispossession…”

This is a speedy remedy where the person, who had been dispossessed of certain immovable
property, without due course of law, can recover back the property without establishing any
title.

Even-a person claiming a superior title has no right to evict any other person without due
process of law and if he dispossesses another by taking the law into his own hands, the persons
dispossessed will be restored back the possession under the above-stated provision.

This section gives relief only to a person in lawful possession. A mere trespasser cannot have
recourse to this provision.

1. Action for Mesne Profits- S.2(12) CPC

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Apart from the right of recovery of land by getting the trespasser ejected, a person who was
wrongfully dispossessed of his land may also claim compensation for the loss which he has
suffered during the period of dispossession. Mesne profits refer to the profitts taken by the
defendant during the period of his occupancy.

An action to recover such compensation is known as an action for mesne profits. If the plaintiff
likes, he may sue in ejectment and mesne profits in the same action. His claim is not limited to
the benefit received by the defendant from that land during that period.

1. Distress Damage Feasant/Seizure/Detention

The right of distress damage feasant authorizes a person in possession of land to seize the
trespassing cattle or other chattels and he can detain them until compensation has been paid to
him for the damage done. The idea is to force the owner of the chattel to pay compensation and
after the compensation has been paid, that chattel is to be returned.

Any chattel, animate or inanimate, can be detained. The thing seized, therefore, may be a
cricket ball, a football, a cow, a horse or even a railway engine.

In Boden v. Roscoe, the occupier of land was held entitled to detain a pony, which after
trespassing had kicked his filly until compensation for the damage done was paid.

The right is available only when the object in question is unlawfully there on certain land. If
therefore, a bull which is being conducted carefully through a street enters a shop through an
open door, there is no trespass and there cannot be a right of seizure in respect of the animal.

There is no right to follow the things after it has gone out of those premises or to recover them
after the owner has taken them away. It is also necessary that the thing seized must be the very
thing which had trespassed and caused the damage. Thus, if the damage has been done by one
animal, no other animal, even from the same herd, can be seized for the exercise of the right.

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 Vicarious Liability

Introduction

Every person is liable for acts, the person commits and not liable for the acts done by others
but in some situations when a person is liable for the acts of another person is known as
vicarious liability. So, for this to happen there must be a specific kind of relationship between
both the people and the act must be connected with the relationship. These relationships can be
of a master and servant or principal and agent.

Vicarious liability is the liability of a person for an act of another person because of their
relationship with each other. For eg: Saurav is the driver of Gaurav, and Gaurav sent Saurav to
drop his friend Suryash to the Airport. On their way, Saurav hits Mahesh because of his reckless
driving. In this situation, Gaurav was not even in the car while the car hit Mahesh, but still, he
was liable for the accident caused by Saurav. This is because of vicarious liability.

So, vicarious liabilities only deal with the situation where the person is liable for some other
person’s acts. It is considered as an exception to the general rule that the person is liable for his
acts only. Vicarious liability is based on the principle of ‘qui facit per se per alium facit per
se’, which means ‘He who does an act through another is deemed in law to do it himself’.

Essentials of Vicarious Liability

The essentials of vicarious liability are:

1. There must be a certain type of relation between the parties.

2. The wrongful act must be committed by another person.

3. The wrongful act must happen during the course of employment.

Relations in Vicarious Liability

So, this liability can only take place when one party is socially superior to another party and
superior party shall be considered liable. Some examples of these relationships are:

• Master and Servant

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 • Owner and Independent Contractor

• Partners in Partnership Firm

• Principal and Agent

• Company and its Directors

Reasons for Vicarious Liability

The reasons behind holding the master liable for the actions of his servant are:

1. A servant is just an agent who is controlled and supervised by his employer. So, the
servant works according to the master which means he works in the manner the
master wants the work to be done. So, the liability for the actions of the servant must
be of the master.

2. The master always enjoys the profit derived from the efforts of the servant, so he
must also bear the loss that occurred by the activity of the servant but only in the
course of employment.

3. The master is financially stable than that of a servant. So, the master is more suitable
to pay for the damages caused by the tortious act of the servant. But the masters are
allowed to take reasonable care and precautions to prevent himself from such
situations.

Scope of Employment

The actions of the employees related to the term of his employment are considered as the scope
of employment. The scope changes through the requirements of the job and the number of
people are required to do the job. There are situations where a worker is not working under the
scope of employment. These include:

• Independent Contractor

An independent contractor is a person doing work for someone else, these contractors are not
considered as employees because they are not working in the scope of employment and are
certainly not considered as employer’s liability.

• Illegal Acts

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Any illegal act is not under the scope of employment. So, any harm caused by the illegal act is
mostly not considered as the employer’s liability.

When an employee performs an activity that is neither directed nor controlled by the employer,
the employee is not in the scope of employment. In this situation, if the employee engages in
any wrongful tortious activity, the employer is not liable for the damages.

For example, A is the driver of B, after dropping B to his office A left the office premises to
meet his friend C with B’s car. A picked up C, they went for a drive and had an accident. Z
was injured in the accident. In this situation, B is not liable for any damages because B had no
idea of A’s plan and A was not in any course of employment given by B.

Difference between Servant and Independent Contractor

A servant and independent contractors are quite similar as they both work for the employer,
which means both of them can not decide their choice of work, the employer will assign the
work to them but in the case of liability of tort, the master is liable for the wrongful act of the
servant but he is not liable for the wrongful act of the independent contractor because the
servant is engaged under the contract of services while the independent contractor is engaged
under the contract for services.

The master is liable in the case of a servant because the servant commits the wrongful act in
his course of employment. So, the wrongful act of the servant is considered as the act of the
master. Thus, the master is liable vicariously for the wrong done of the servant. But in the end,
the plaintiff has the choice to take action against either or both of them. The liability of master
and servant is both joint and several as they are considered joint tortfeasors.

For example, A has a company and all the people working in his company are his servants as
A has the right to control and supervise the work of the people working in his company.

While the work of an independent contractor can not be controlled by the master. The master
can only provide the type and duration of the work to the independent contractor but can not
control the process he uses during the work. An independent contractor himself chooses the
manner in which the work is to be done

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For example, all the third party workers who work on a daily basis on contracts, the taxi drivers
as the person taking a cab is not liable for an accident that occurred during the ride but the
person will be liable when he is in a car with his driver.

A has a shop, one day there was something wrong with the A.C., A called a mechanic B to
repair the A.C. while B is working for A but it doesn’t mean that A will be liable for B’s
wrongdoings as in this case B is an independent contractor, not a servant because A can only
tell B what to do but B himself will figure out how to do that specific work.

Vicarious Liability in Medical Care

For any wrongdoing caused by the employee in any medical institution, the hospital or the
doctor is vicariously liable for the damages. The employees include all the nurses, technicians,
physicians, lab assistants, administrative department and other staff members.

Vicarious liability helps in improving the conditions of hospitals as the hospital is liable for all
the staff. So, the hospital or any medical institution focuses on proper qualifications and
credentials for the employees to perform their job but this doesn’t work for a healthcare
provider who is an independent contractor of the hospital.

For example, A had surgery at XYZ hospital and Doctor Who performed the surgery. The
surgery was successful but Doctor Who forgot his ring inside A’s stomach. Now, in this case,
Doctor Who is liable for negligence but A can sue both XYZ hospital as well as Doctor Who
as the hospital is liable for the actions of the doctors.

Types of Vicarious Liability

When some person is liable for damages caused by the other person because there was certain
control, ownership, or direction involved, then the liability is known as vicarious liability.

Principal Liability

When a person allows another person to use his vehicle to perform a task for the owner and
while doing the task, the person causes damages or injury through negligence, in this case, the
owner is liable for the damages through vicarious liability.

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For example, A has a recent surgery and was on complete bed rest, he asked B to complete his
insurance work by sending the papers to the company, A lends his car to B, during the drive,
B had an accident because of recklessness, in this case, A is liable for B’s accident.

In another situation, after completing A’s work B used his car for her personal use and met an
accident during the course of her work, in this situation A is not liable for B’s accident.

This shows that the course of employment of the owner is necessary.

Parental Liability

In any case, when a child creates damage by taking advantage of the situation created by their
parents, the parents are liable for the damages. The situations can be allowing a child to drive,
or leaving a loaded weapon in a child’s reach. In the lack of parental supervision, the parents
are vicariously liable for their child’s negligence.

For example, A is the mother of 10-year-old B, while performing the daily chores she was not
able to keep an eye on B and B damaged the car of C. In this case, A is vicariously liable for
B’s actions as B is the son of A and she has to keep an eye on B’s actions.

Situations in which the Master is Liable

• When the wrongdoing arrived from a natural consequence of an act of servant.

When the servant works on the instructions of his master, then the master is liable for all the
damages arriving out of the work of the servant.

• When the wrongdoing arrived from the negligence of the servant.

For example, B works as a house help for A, B was cleaning A’s house and forgot to close the
door which resulted in the escape of their dog, the dog bit the son, A was liable for all the
damages caused by B’s negligence.

• When the wrongdoing through the mistake in execution from the lawful authority.
For example, A is the guard of XYZ bank and he is allowed to shoot in case of emergency.
One day during the transfer of the cash, B was entering with the people who were transferring

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the cash in the bank, A in the suspicion of B as a dacoit shot him and caused his death. In this
case, the bank is vicariously liable for A’s actions.

• When the wrongdoing happened through the servant’s fraudulent act.

For example, A works in an insurance company, B went to the company to open insurance, A
takes from B and creates a policy for his wife. In this case, the insurance company is liable for
A’s fraudulent act.

• When the servant wilfully committed the wrong to hurt the master.
Every wrong act of servant which is in the course of employment either willful, reckless, or
improper is liable for the master. For example, when a waiter hurts the customer for being rude
to him, the waiter, as well as the hotel, is liable for the waiter’s negligence. The hotel is liable
under vicarious liability.

Exceptions

• When the servant is under a statutory duty which he can not delegate, the master is
not liable.

• When there is a case where the servant is involved with the withdrawal of support
from the neighboring land, the master is not liable.

• When situations involve very hazardous acts, the master is not liable.

• When situations involve escaping from the fire, the master is not liable.

• When situations using the highways, the master is not liable.

Conclusion

Vicarious liability deals with only those cases when one person is liable for the actions of
another person. And the liable person must be superior to the other person. The person who
commits wrong must be in the course of employment. The course of employment is essential
for vicarious liability.

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 The Rule of Strict Liability and Absolute Liability

Some activities may be so dangerous that the law has to regulate them with extreme consequences.
For example, the law may sometimes levy a penalty even if damage occurs without somebody’s
fault. This is exactly what happens under the rule of strict liability. This rule is very important for
commercial and other activities that have the potential to result in horrific damages.

Rule of Strict Liability

The strict liability principle is an extremely important concept under the law of torts. The basis of
this principle basically lies in the inherent harm that some activities can inflict. For example,
leaking of poisonous gasses, as it happened in the Bhopal Gas Tragedy, will attract this rule.

The underlying principle of compensation in torts generally depends on the extent of precautions
a person takes. Hence, if he takes abundant precautions to prevent some harm, the law may exempt
him from paying damages. This principle, however, does not apply to strict liability.

Under the strict liability rule, the law makes people pay compensation for damages even if they
are not at fault. In other words, people have to pay compensation to victims even if they took all
the necessary precautions. In fact, permissions allowing such activities often include this principle
as a pre-condition.

Rylands v. Fletcher

The rule of strict liability originates from the famous English case of Rylands v. Fletcher.
According to the facts of this case, the defendant owned a mill and wanted to improve its
water supply. For this purpose, he employed a firm of reputed engineers to construct a reservoir
nearby.

The problem occurred when the reservoir was so full one day that the water from it started over-
flowing. The water flowed with so much force that it entered the plaintiff’s mine and damaged
everything.

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The engineers, who were independent contractors of the defendant, were clearly at fault. This is
because they were negligent in constructing the reservoir. This is exactly what the defendant also
said for avoiding his liability.

The court, however, disagreed and explained the strict liability rule. It said that when somebody
keeps something on his property for his benefit, it should not escape and affect others. In case it
so escapes, the owner of that thing must compensate the victim even if he was not negligent.

Exceptions to Strict Liability

The strict liability rule does not apply in cases involving the following exceptions:

1) Act of God

An act of God is a sudden, direct and irresistible act of nature that nobody can reasonably prepare
for. It can cause damage regardless of how many precautions one may take. For
example, tsunamis, tornadoes, earthquakes, extraordinary rainfall, etc. are acts of God. Any
damage that occurs due to these acts does not attract strict liability.

2) Wrongful act of a third party

Sometimes, the involvement of third parties may be the cause of damages. For example,
renovation work in one flat may cause some nuisance to another flat. Here, the tenant affected by
the nuisance cannot sue his landlord. He can only sue the person renovating the other flat.

3) Plaintiff’s own fault

In several instances, the plaintiff may himself be at fault for the damage he suffers. In such cases,
he cannot shift liability on some other person regardless of how much he suffers.

Rule of Absolute Liability

The Supreme Court applied a stricter version of the rule of strict liability in the case of MC Mehta
v. Union of India (1987). In this case, harmful Oleum gas had escaped from a factory owned by

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Shriram Foods & Fertilizer Industries. The gas had caused a lot of damage to people and industries
nearby.

The Supreme Court held that, despite being so stringent, the strict liability rule was inadequate in
modern times. This is because scientific advancements have made modern industries even more
dangerous and hazardous. Hence, the court laid down the absolute liability rule in this case.

According to the absolute liability rule, no exceptions of strict liability shall apply in certain cases.
Therefore, the people who cause damage will have unlimited liability to compensate victims
adequately. Courts in India have applied this rule in many cases to create deterrence.

Remoteness of Damage
Introduction

In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. The general principle of
law requires that once damage is caused by a wrongful act, liabilities have to be assigned. But,
as many cases have shown, assigning liabilities is not always a simple task at hand.

Once a wrongful act has been committed (tort), it can have multiple consequences. The
consequences can have further consequences. These ‘consequences of consequences’ can
become a long chain and at times the problem of the liability of the defendant comes up. The
question that this particular topic deals with is “How far can the defendant’s liability be
stretched for the ‘consequences of consequences’ of the defendant’s tort?”

To a first-time-reader, this whole concept of ‘consequences of consequences’ would sound

confounding. Therefore, in order for us to appreciate the problem better, we may look at a
simple example.

In this simple example, we see that the defendant who was a cyclist negligently hits a
pedestrian. Incidentally, the pedestrian happened to be carrying a bomb. And due to the
negligence of the defendant, the pedestrian falls and the said bomb explodes, resulting in the
death of that pedestrian. Now, due to the explosion of the bomb, a nearby building catches fire

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and five of its residents die. As a result of the fire, the building collapses and nearby structures
are destroyed, resulting in 20 more deaths. Further, the destruction of nearby shops results in
pecuniary losses to the shop owners.

Although one would tend to easily dismiss this example as too far-fetched, it is not difficult to
see that similar cases resembling this particular domino effect can exist and that their existence
can create questions of legal importance.

In the above example itself, we can see how a tort of negligence committed by the defendant
can result in consequences that were neither intended by the defendant nor comprehended by
him beforehand. Such a situation creates question for assigning blame. Even if the Court were
of the opinion that the defendant was to be blamed for the death of the pedestrian, would the
Court also unhesitatingly place the same amount of the blame on the defendant for the death
of the other 25 people?

The problem is also explained by Lord Wright, to some extent, in the case of Liesbosch Dredger
v. S.S. Edison:

“The Law cannot take account of everything that follows a wrongful act; it regards some
subsequent matters as outside the scope of its selection, because it was infinite of the law to
judge the causes of causes, or consequences of consequences. In the varied web of affairs, the
law must abstract some consequences as relevant, not perhaps on grounds of pure logic but
simply for practical reasons.”

To answer such questions, jurists propose that a defendant should be made responsible only
for the consequences which were proximate (and not remote) consequences of the defendant’s
wrongful act.

Proximate and Remote Damage

Just as Lord Wright has pointed it out, we have to draw a line for practical purposes. Now, the
question that arises is where exactly is this line to be drawn?

To answer this question, we look at a test known as ‘the test of remoteness’. With this test, we
check if the damage is ‘too remote a consequence’ of the wrongful act or not?

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Few Illustrations for Proximate and Remote Damage

Scott v. Shepherd (The Squib Case)

In this case, a person A threw a lighted squib into a crowd. The squib fell on a person B. B, in
order to prevent injury to himself, threw that squib further. It landed on another person C, who
in turn threw it further and it finally exploded on a person D, thereby injuring him. As a result
of the explosion, D lost one of his eyes.

In this case, A was held liable to D. Although one would say that his act was ‘the farthest from
the injury to D’, his act was held to be a proximate cause of the injury to D.

Haynes v. Harwood

In this historically famous case, the servants of the defendant, owing to their negligence
abandoned a horse van on a crowded street. The street had children and women. Some children
pelted stones at the horses, as a result of which the horses bolted and started posing a threat to
the safety of the people in the street. In order to stop the horses and to rescue the women and
children, a policeman (the plaintiff here) suffered injuries himself.

In a lawsuit brought by the plaintiff against the defendant, one defence pleaded was that
of novus actus interveniens (remoteness of consequences).

Again, in this case, the Court held that novus actus interveniens was not a valid defence and
that the negligent act of the defendant’s servants leaving the horse van unattended as
the proximate cause of the injury suffered by the plaintiff.

Lynch v. Nurdin

This case is similar to the previous one to a certain degree. Here, the defendant left his horse-
cart unattended on a road. Some children began playing with the said horse-cart. One child sat
on the cart (the plaintiff) and another set the horse in motion. Consequently, the child suffered
damage and an action was brought.

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In this case too the defence of novus actus interveniens was pleaded. But again, it was held by
the Court that the injury to the plaintiff was a proximate consequence of the defendant’s act
and hence he would be held liable to the plaintiff.

Two Tests of Remoteness

Now that we have seen that the law deems a person liable for the injuries caused which
were proximate consequences of that person’s act, one might ask about the parameters on
which the Court decides which act is a proximate one and which one remote.

To answer this question, we see two tests of remoteness during the course of legal history:

1. Test of reasonable foresight; and

2. Test of directness.

Test of Reasonable Foresight

According to this test, if the consequences of a wrongful act could have been foreseen by a
reasonable man, they are not too remote.

Pollock was an advocate of this test of remoteness. He opined, in cases Rigby v. Hewitt and
Greenland v. Chaplin, that the “liability of the defendant is only for those consequences which
could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer.”

But here we must note that it would not be a sufficient defence in itself to say that the defendant
did not foresee the consequences. Instead, it would be for the Court to decide, upon the
standards of reasonability, whether the consequence should have been foreseen by the
defendant or not.

This test of reasonable foresight lost its popularity to the test of directness. But, as we shall see
later, it managed to regain currency among jurists.

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Test of Directness

According to the test of directness, a person is liable for all the direct consequences of his act,
whether he could have foreseen them or not; because consequences which directly follow a
wrongful act are not too remote.

Further, according to this test, if the defendant could foresee any damage, he will be liable
for all the direct consequences of his wrongful act. To understand this particular test of
remoteness better, it would suffice to look at the Re Polemis Case.

Re Polemis and Furness, Wilthy & Co.

This case, popularly referred to as the Re Polemis Case, was the landmark case on the test of
directness. The Courts of Appeal held the test of reasonable foresight to be the relevant test
whereas later the Privy Council upheld the test of directness.

The relevant facts of the case are that the defendants chartered a ship to carry cargo. The cargo
included a quantity of Petrol and/or Benzene in tins. There was a leakage in the tins and some
oil was collected in a hold of the ship. Now, owing to the negligence of the defendant’s
servants, a plank fell in the hold and consequently sparks were generated. As a result of those
sparks, the ship was totally destroyed by fire.

In this case, the Privy Council held the owners of the ship entitled to recover the loss, although
such a loss could not have been foreseeably seen by the defendants. It was held that since the
fire (and the subsequent destruction of the ship) was a direct consequence of the defendant’s
negligence, it was immaterial whether the defendant could have reasonably foreseen it or not.
As per Scrutton, L.J.:

“Once an act is negligent, the fact that its exact operation was not foreseen is immaterial.”

Wagon Mound Case: The Re-affirmation of the Test of Reasonable Foresight

The test of directness that was upheld in the Re Polemis case was considered to be incorrect
and was rejected by the Privy Council 40 years later in the case of Overseas Tankship (UK)
Ltd. v. Morts Dock and Engg. Co. Ltd., also popularly known as the Wagon Mound Case.

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The facts of this case are as follows:

The Wagon Mound was a ship which was chartered by the appellants (Overseas Tankship Ltd.).
It was taking fuel at a Sydney port at a distance of about 180 metres from the respondent’s
wharf. The wharf had some welding operations going on in it. Owing to the negligence of the
appellant’s servants, a large quantity of oil was spilt on the sea which also reached the
respondent’s wharf. Due to the welding operations going on there, molten metal (from the
respondent’s wharf) fell, which ignited the fuel oil and a fire was caused. The fire caused a lot
of damage to the respondent’s wharf and equipment.

In this case, the trial court and the Supreme Court held the appellants liable for the damage to
respondents based on the ruling in Re Polemis. But when the case reached the Privy Council,
it was held that Re Polemis could not be considered good law any further and thus the decision
of the Supreme Court was reversed. It was held that the appellants could not have reasonably
foreseen the damage to the respondent and therefore were not liable for the damage caused.

In the case Lord Viscound Simonds observed:

“It does not seem consonant with current ideas of justice or morality that, for an act of
negligence, … the actor should be liable for all consequences, however unforeseeable.”

They also maintained that “according to the principles of civil liability, a man must be
considered to be responsible only for the probable consequences of his act”.

And therefore with this case, the test of reasonable foresight regained its authority to determine
the remoteness of damage and subsequently the liability of a person for the damage caused by
him in cases of tort.

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DREAM.
BELIEVE.
DO.
REPEAT.

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