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Law on Tort

Definition of Tort-

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

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

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

Distinction between Tort and crime-

Tort Crime

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

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

iii) Compromise is always possible. iii) Except in certain cases, compromise


is not possible.

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


the injured party.

Distinction between Tort and breach of contract-

Breach of contract Tort

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

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

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

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


Distinction between Tort and Breach of trust-

Tort Breach of Trust

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

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

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

Latin terms and maxims-

Causa causans- An immediate and effective cause.

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

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

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

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

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

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

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

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

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

Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in
the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right
front wheel to the axle gave way toppling the jeep. The two strangers were thrown out
and sustained injuries, and one of them died as a consequence of the same.
It was held that neither the driver nor his master could be made liable, first, because it
was a case of sheer accident and, secondly, the strangers had voluntarily got into the
jeep and as such, the principle of volenti non fit injuria was applicable to this case.

Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking


photographs at a horse show while he was standing at the boundary of the arena. One
of the horses, belonging to the defendant, rounded the bend too fast. As the horse
galloped furiously, the plaintiff was frightened and he fell into the horses course and
there he was seriously injured by the galloping horse. The horse in question won the
competition. It was held that since the defendants had taken due care, they were not
liable. The duty of the defendants was the duty of care rather than duty of skill.

Ex turpi causa non oritur actio No action arises from a wrongful consideration.

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

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

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

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

Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival


school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce
their fees from 40 pence to 12 pence per scholar per quarter. It was held that the
plaintiffs had no remedy for the loss thus suffered by them.
Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies
combined together and drove the plaintiff company out of the tea-carrying trade by
offering reduced freight. The House of Lords held that the plaintiff had no cause of
action as the defendant had by lawful means acted to protect and extend their profits.

Ushaben v. Bhagyalaxmi Chitra Mandir The plaintiffs sued for a permanent


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

Action v. Blundell The defendants by digging a coal pit intercepted the water which
affected the plaintiffs well, less than 20 years old, at a distance of about one mile.
Held, they were not liable. It was observed: The person who owns the surface, may
dig therein and apply all that is there found to his own purposes, at his free will and
pleasure, and that if in the exercise of such rights, he intercepts or drains off the water
collected from underground springs in the neighbours well, this inconvenience to his
neighbour falls within description damnum abseque injuria which cannot become the
ground of action.

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

Ashby v. White

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

Malice- A condition of mind which prompts a person to do a wrongful act wilfully,


that is, on purpose, to the injury of another, or to do intentionally a wrongful act
toward another without justification or excuse.

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

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

i) Malice in fact

ii) Malice in law

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

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

Motive Motive is that which incites or stimulates a person to do an act. It is the


moving power which impels to action for a definite result.

Motive is mainspring of human action. It is cause or reason. It is something which


prompts a man to form an intention.

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

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

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

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

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

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

Misfeasance Unlawful use of power; wrongful performance of a normally legal act;


injurious exercise of lawful authority; official misconduct; breach of law.

The word misfeasance would apply to a case where a lawful act is done in an
improper manner.

Nonfeasance - Non performance of some act which ought to be performed, omission


to perform a required duty at all, or total neglect of duty.

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

Distinction between Misfeasance, nonfeasance and malfeasance Misfeasance


is the improper doing of an act which a person may wilfully do. Nonfeasance means
the omission of an act which a person ought to do. Malfeasance is the doing of an act
which a person ought not to do at all.

Remedies

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

Judicial remedy is of three types:

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

Types of damages -

a) Exemplary or Vindictive damages are damages on an increased scale, awarded


to the plaintiff over and above what will barely compensate him for his property
loss, where the wrong done to him was aggravated by circumstances of violence,
oppression, malice etc.

b) Ordinary or Real damages are compensation for general damage. General


damages are those which the law implies in every breach of contract and in every
violation of a legal right.
c) Nominal damages They are awarded for the vindication of a right where no
real loss or injury can be proved.

d) Contemptuous damages -

Injunction- A judicial process operating in personam, and requiring a person to


whom it is directed to do or refrain from doing a particular thing. Law as to the
injunction is contained in the Specific Relief Act 1963 and the CPC 1908. Types of
injunction

(i) Mandatory When, to prevent the breach of an obligation, it is necessary to


compel the performance of certain acts, the Court may in its discretion grant an
injunction to prevent the breach (s. 55 of the Specific Relief Act, 1877).

(ii) Permanent or perpetual By perpetual injunction a defendant is perpetually


enjoined from the assertion of a right, or from the commission of an act, which
would be contrary to the rights of the plaintiff (s. 53, the Specific Relief Act,
1877).

(iii) Temporary Temporary injunction is such as is to continue until a specified


time, or until the further order of the Court. It is regulated by the CPC (s. 53, The
Specific Relief Act, 1877; CPC Order XXXIX Rule 1.

(iv) Ad-interim -

Restitution of property Restitution means restoration of anything to its rightful


owner.

Extra-judicial remedies are-

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

ii) Expulsion of trespassers Forcibly evicting the trespasser.

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


property.

iv) Re-entry of land

v) Abatement of nuisance Abatement is the act of eliminating or nullifying; the


act of lessening or moderating.

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

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

The following persons cannot sue-

i) Citizen of foreign state If a citizen of foreign country wants to file a suit


against a Bangladeshi or a other citizen of foreign country, he has to file an
application to the Home Ministry through the Law Ministry (s. 83 of CPC)

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

Alien enemies residing in Bangladesh with the permission of the Government,


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

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

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

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

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

vi) Corporation A corporation gets a legal entity when it is registered. No


unregistered corporation can file a suit.

vii) Child in mothers womb This is called pre-natal injuries.

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

Montreal Tramways v. Leveille The Supreme Court of Canada allowed an


action by a child born with club feet two months after an injury to its mother by
the negligence of the defendants.
Majority of the writers are in favour of the view that an action for pre-natal
injuries should also be recognized, once that the act of the defendant is considered
to be tortious.

Who may not be sued -

i) President/head of the state According to Article 51(1) and 51(2) of the


Constitution, no civil or criminal suit can be filed against the President as long he
is holding the post of the President.

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

iii) Ambassador / High Commissioners High Commission is an embassy from one


commonwealth country to another.

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

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

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


it.

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

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

Negligence

Essentials of negligence-

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

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

iii) The plaintiff suffered damage as a consequence thereof.

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

It means a legal duty rather than a mere moral, religious or social duty. There is no
general rule of law defining such duty. It depends in each case whether a duty exists.
Donoghue v. Stevenson A purchased a bottle of ginger beer from a retailer for the
appellant. She consumed that and seriously suffered in her health. She found some
snail at the bottom of the bottle. She sued for compensation. The defendant pleaded
that he did not owe any duty of care towards the plaintiff. The House of Lords held
that the manufacturer owed her a duty to take care that the bottle did not contain any
noxious matter, and that he would be liable on the breach of the duty.

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

Duty depends on reasonable foreseeability of injury

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

No liability when injury is not foreseeable

Glasgow Corp. v. Muir The manageress of the defendant Corporation tea-rooms


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

Reasonable foreseeability does not mean remote possibility

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

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

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

(a) The importance of the object to be attained

K. Nagireddi v. Government of Andhra Pradesh Due to construction of a canal by


the state government, all the trees of the plaintiffs orchard died. The plaintiff alleged
that the government due to negligence did not cement the floor. It was held that the
construction of canal was of great importance and to not cementing the floor was not
negligence from the state government.

(b) The magnitude of risk

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

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

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

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

Res ipsa loquitur- It means the things itself speaks. When the accident explains
only one thing and that is that the accident could not ordinarily occur unless the
defendant had been negligent, the law raises a presumption of negligence on the part
of the defendant.

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

Contributory negligence

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

Rural Transport Service v. Bezlum Bibi (1980) The conductor of an overcrowded


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

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

Doctrine of alternative danger

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

Jones v. Boyce (1816) The plaintiff was a passenger of defendants coach. The
coach was driven so negligently that the plaintiff jumped off the bus fearing an
accident and broke his leg. It was held that the plaintiff would be entitled to recover.

Shayam Sunder v. State of Rajasthan (1974) Due to the negligence on the part of
the defendants, a truck belonging to them caught fire. One of the occupants,
Navneetlal, jumped out to save himself from the fire, be struck against a stone lying
by the roadside and died. The defendants were held liable.

Defamation

Defamation is injury to the reputation of a person. If a person injures the reputation of


another, he does so at his own risk, as in the case of an interference with the property.
A mans reputation is his property, and if possible, more valuable, than other property
(Dixon v. Holden, 1869).

s. 499 of the Penal Code- Whoever by words either spoken or by visible


representations, makes or publishes any imputation concerning any person intending
to harm the reputation of him, except in the cases hereinafter excepted, to defame
that person.
Ten exceptions-

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

2. Public conduct of public servants-

3. Conduct of any person touching any public question-

4. Publication of reports of proceedings of Courts-

5. Merits of case decided in Court or conduct of witnesses and others concerned-

6. Merits of public performance-

7. Censure passed in good faith by person having lawful authority over another-

8. Accusation preferred in good faith to authorized person-

9. Importation made in good faith by person for protection of his or others interests-

10. Caution intended for good of person to whom conveyed or for public good-

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

s. 501- Printing or engraving matter known to be defamatory-Whoever prints or


engraves any matter, knowing that to be defamatory of any person, shall be punished
with two years or fine or both.

s. 502- Sale of printed or engraved substance containing defamatory


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

Classification of defamation

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

Libel Slander

It is written It is oral

It is permanent It is temporary

It is both tort and offence It is only tort


It is actionable per se It is not actionable per se

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

Essential elements of defamation-

i) The statement must be defamatory

ii) The said statement must refer to the plaintiff

iii) The statement must be published

iv) The statement must be passed by the defendant

Explanation-

i) The statement must be defamatory-

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

D.P. Choudhury v. Manjulata (1997)- There was publication of a statement in a local


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

The Innuendo

A statement may prima facie be innocent but because of some latent or secondary
meaning, it may be considered to be defamatory. When the natural and ordinary
meaning is not defamatory but the plaintiff wants to bring an action for defamation,
he must prove the latent or the secondary meaning, i.e. innuendo.

Intention to defame is not necessary- When the words are considered to be


defamatory by the persons to whom the statement is published, it is immaterial that
the defendants did not know of the facts, is considered to be defamatory.

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

ii) The statement must refer to the plaintiff-

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

Newstead v. London Express Newspapers Ltd.- the defendants published an article


stating that Harold Newstead, a Camberwell man had been convicted of bigamy.
The story was true of Harold Newstead, a Camberwell barman. The action for
defamation was brought by another Harold Newstead, a Camberwell barber. As the
words were considered to be understood as referring to the plaintiff, the defendants
were held liable.

iii) the statement must be published-

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

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

iv) the statement must be passed by the defendant

Defences:

The defences to an action for defamation are-

1. Justification of truth

2. Fair comment

3. Privilege which may be either absolute or qualified.

1. Justification of truth-

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

2. Fair comment-
For this defence it is required:

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

b) the comment must be fair

c) the matter commented upon must be of public interest.

3. Privilege is of two types: (a) Absolute privilege and (b) Qualified privilege

(a) Absolute privilege-

i) Parliamentary proceedings- Art. 78(3) of the Constitution states, a member of


Parliament shall not be liable in any Court in respect of anything said, or any vote
given, by him in Parliament or in any committee thereof.

ii) Judicial proceedings-

iii) State communications-

(b) Qualified privilege- in certain cases, the defence of qualified privilege is also
available. To avail this defence, the defendant has to prove the following two points:

i) the statement was made on a privileged occasion, i.e. it was in discharge of duty or
protection of an interest

ii) the statement was made without any malice.

Trespass

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

Trespass to land or property

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

Trespass is a wrong against possession rather than ownership. Therefore, a person in


actual possession can bring an action even though, against the true owner, his
possession was wrongful.

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

i) Re-entry

ii) Action for ejectment

iii) Action for mesne profit


iv) Distress damage pheasant- to seize trespassing cattle until compensation has been
paid.

Judicial remedies are mentioned in s. 297 and 441-462 of the Penal Code, 1860:

s. 297- Trespassing on burial places with intention of wounding the feelings of any
person or insulting the religion- 1 year, fine, both.

s. 441- Criminal trespass- whoever enters others land to commit an offence or to


intimidate, insult or annoy.

s. 442- House trespass- Whoever commits criminal trespass by entering into any
building, vessel or tent.

s. 443- Lurking house trespass- Whoever commits house trespass having taking
precautions to conceal such trespass from the owner.

s. 444- Lurking house trespass by night- Whoever commits lurking house trespass
after sunset and before sunrise.

s. 445- House breaking- Whoever enters into a house by making a passage, or with
the help of the abettor, or by opening any lock etc.

s. 446- House breaking by night- after sunset and before sunrise.

s. 447- Punishment for criminal trespass- 3 months, 500 taka, both.

s. 448- Punishment for house trespass- 1 year, 1000 taka, both

s. 449- House trespass in order to commit offence punishable with death-


imprisonment for life, or rigorous 10 years, also fine.

s. 450- House trespass in order to commit offence punishable with imprisonment for
life- 10 years, also fine.

s. 451- House trespass in order to commit offence punishable with imprisonment- 2


years, also fine.

If for committing theft- 7 years.

s. 452- House trespass after preparation for hurt, assault or wrongful restraint- 7 years,
also fine.

s. 453- Punishment for lurking house-trespass or house breaking- 2 years, also fine.

s. 454- Lurking house trespass or house breaking in order to commit offence


punishable with imprisonment- 3 years, also fine. If for committing theft- 10 years.
s. 455- Lurking house-trespass or house-breaking after preparation for hurt, assault or
wrongful restraint- 10 years, also fine.

s. 456- Punishment for lurking house-trespass or house-breaking by night- 3 years,


also fine.

s. 457- Lurking house-trespass or house-breaking by night in order to commit offence


punishable with imprisonment- 5 years, also fine. If for committing theft- 14 years.

s. 458- Lurking house-trespass or house-breaking by night after preparation for hurt,


assault or wrongful restraint- 14 years, also fine.

s. 459- Grievous hurt caused whilst committing lurking house-trespass or


house-breaking- imprisonment for life, also fine.

s. 460- All persons jointly concerned in lurking house-trespass or house-breaking by


night punishable where death or grievous hurt caused by one of them- for life, also
fine.

s. 461- Dishonestly breaking open receptacle containing property- 2 years, fine, both.

Trespass to goods: It means direct physical interference with the goods, which are n
the plaintiffs possession, without lawful justification. Throwing stones on a car,
shooting birds, beating animals or infecting them with disease or chasing animals to
make them run away from its owners possession are examples of trespass to goods.
Trespass to goods are actionable per se.

Liability

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

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

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

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

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

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

b) Liability of partners of each others tort

c) Liability of the master for the tort of his servant

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

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

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

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

c) Master and servant- A servant is a person employed by another to do work under


the directions and control of his master. If a servant does a wrongful act in the course
of his employment, the master is liable for it. The servant, of course, is also liable.
The doctrine of liability of the master for act of his servant is based on the maxim
respondeat superior, which means let the principal be liable.
For the liability of the master to arise, the following two essentials are to be present:

i) the tort was committed by the servant;

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

Nuisance

Nuisance is a tort means an unlawful interference with a persons use or enjoyment


of land, or some right over, or in connection with it. The interference may be any way,
e.g. noise, vibration, heat, smoke, smell, fumes, water, gas, electricity or disease
producing germs.

Nuisance is distinguished from trespass-

Trespass Nuisance

Interference is direct. Interference is consequential.

It is interference with a persons It is interference with a persons use of


possession of land. land.

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

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


to obtain remedy.

Nuisance is of two types:

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

i) Public Nuisance

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

ii) Private nuisance

To constitute the tort of nuisance, the following essentials are required to be proved:

a) unreasonable interference

b) Interference is with the use of enjoyment of land


c) Damage

a) unreasonable interference- Interference may cause damage to the plaintiffs


property or may cause personal discomfort to the plaintiff in the enjoyment of
property. Every interference is not a nuisance. To constitute nuisance, the
interference should be unreasonable. Ushaben v. Bhagya Laxmi Chitra Mandir.

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

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

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

Difference between public nuisance and private nuisance-

Public nuisance Private nuisance

It is a crime. It is a civil wrong

It is interference with the right of public It is interference with the right of an


in general. individual or few persons

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

Defence

i. Prescriptive right to commit nuisance- A right to do an act, which would otherwise


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

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

Provisions of nuisance in the Penal Code

There are 11 types of nuisance mentioned in s. 268 s. 294A.

s. 268- Public nuisance- A person is guilty of public nuisance whose act or omission
causes common injury danger or annoyance to the public. A common nuisance is not
excused on the ground that it cause some convenience or advantage.

s. 269- Negligent act likely to spread infection of disease dangerous to life- Whoever
spreads any infection of disease negligently or unlawfully- 6 months, fine, both.

s. 270- Malignant act likely to spread infection of disease dangerous to


life- Whoever malignantly does any act to spread the infection of any disease
dangerous to life- 2 years, fine, both.

s. 271- Disobedience to quarantine rule- 6 months, fine, both.

s. 272- Adulteration of food or drink intended for sale- 6 months, 1000 taka, both.

s. 273- Sale of noxious food or drink- Whoever sells, offers or exposes for sale which
has become noxious (poisonous or harmful)- 6 months, 1000 taka, both.

s. 274- Adulteration of drugs- Whoever adulterates any drug to lessen the efficiency
or makes it noxious that it shall be sold or used- 6 months, 1000 taka, both.

s. 275- Sale of adulterated drugs- 6 months, 1000 taka, both.

s. 276- Sale of drug as a different drug or preparation- Whoever sells or issues from
a dispensary for medical purposes any drug as a different drug or medical
preparation- 6 months, 1000 taka, both.

s. 277- Fouling water of public spring or reservoir- 3 months, 500 taka, both.

s. 278- Making atmosphere noxious to health- 500 taka.

s. 279- Rush driving or riding on a public way- Whoever drives in a manner so rash
or negligent as to endanger human life, or to cause hurt or injury to others- 3 years,
1000-5000 taka, both.

s. 280- Rash navigation of vessel- 6 months, 1000 taka, both.

s. 281- Exhibition of false light, mark or buoy- Whoever exhibits any false light,
mark or buoy, intending that such exhibition will mislead any navigator- 7 years, fine,
both.

s. 282- Conveying person by water for hire in unsafe or overloaded vessel- 6 months,
1000 taka, both.

s. 283- Danger or obstruction in public way or line of navigation-200 taka.


s. 284- Negligent conduct with respect to poisonous substance- 6 months, 1000 taka,
both.

s. 285- Negligent conduct with respect to fire or combustible matter- 6 months, 1000
taka, both.

s. 286- Negligent conduct with respect to explosive substance- 6 months, 1000 taka,
both.

s. 287- Negligent conduct with respect to machinery- 6 months, 1000 taka, both.

s. 288- Negligent conduct with respect to pulling down or repairing buildings- 6


months, 1000 taka, both.

s. 289- Negligent conduct with respect to animal- 6 months, 1000 taka, both.

s. 290- Punishment for public nuisance in case not otherwise provided


for- Whoever commits a public nuisance in any case not otherwise punishable by this
Code, shall be punished with 200 taka.

s. 291- Continuance of nuisance after injunction to discontinue-Whoever repeats or


continues a public nuisance, having been enjoined by any public servant who has
lawful authority to issue such injunction not to repeat such nuisance- 6 months, fine,
both.

s. 292- Sale, etc. of obscene books, etc- 3 months, fine, both.

s. 293- Sale, etc of obscene objects to young person- under the age of 21 years- 6
months, fine, both.

s. 294- Obscene acts and songs- Whoever to the annoyance of the others does any
obscene act in public place or sings, recites or utters obscene songs near any public
place- 3 months, fine, both.

s. 294A- Keeping lottery office- 6 months, fine, both.