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NATURE AND DEFINITION OF TORT

WHAT IS A TORT?

• A tort is a civil wrong;


• That (wrong) is based a breach of a duty imposed by
law;
• Which (breach) gives rise to a (personal) civil
right of action for a remedy not exclusive to
another area of law.
Tort is a French word for “wrong.”
The Tort is of French origin. The root is ‘Tortum’ in Latin
which means ‘twist’. It implies a conduct which is
‘tortious’ , or, twisted.. The equivalent word in English is
“Wrong”. In Roman it is “delict” and in Sanskrit it is
“Jimha” which means ‘crooked’.
How word “Tort” came to India

 It came to India through England. In 1065 England was


conquered by Normans who were the French speaking people of
Normandy, a region of France. After Norman conquest, French
became the spoken language in the Courts in England, and
thus many technical terms in English law owe their origin to
French, and ‘Tort’ is one of them.
SALMOND’s Definition
 Tort is a civil wrong for which the
remedy is a common law action for un-
liquidated damages, and which is NOT
exclusively the breach of a contract, or,
the breach of a trust, or, other merely
equitable obligation
WINFIELD’s Definition
 Tortious liability’ arises from the breach of duty
primarily fixed by law. This duty is towards persons
generally and its breach is redressible by an action
for unliquidated damages.
FRASER’s Definition
 Tort is an infringement of a right in rem of a private individual
giving a right of compensation at the suit of the injured
party.
POLLOCK’s Definition
 Tort’ is an act or omission (not merely the breach of adutyarising
out of a personal relation, or undertaken by contract) which is
related to a harm suffered by adeterminateperson,givingriseto
acivilremedywhichisnotanactionofcontract.
Limitation Act 1963
 Sec2(m)oftheLimitationAct1963defines “Tortmeans a civil
wrong which is notexclusivelyabreachofcontractortrust.”
GIST OF ABOVE DEFINITIONS
Tort is a civil wrong which is redressible by an action for unliquidated
damagesandwhichisother thanamerebreachofcontractorbreachof
trust.

Sotheessentialfeaturesof Tort are:-


• wrongfulact,
• LegalDamage,
• Legalremedy
Is it a Law of Tort or Law of Torts ?
THEORIES OF TORT
WINFIELD’S THEORY
all injuries done to another person are torts
unless there is justifications recognized by law.
when a tort is specific, it is narrowed down to a
particular wrong. but when it is not specific, and
considered at a wider level that all harms without
legal justifications are torts, then, it is in a wider
sense.
THEORIES OF TORT
PIGEON HOLE THEORY BY SALMOND
law of torts consist of a ‘net-set’ of pigeon holes, each
containing a specific tort such as assault, battery,
deceit, slander, negligence, etc., if the defendant’s
wrong does not fit in any of these pigeon holes, then
plaintiff has committed ‘no tort’.
THEORIES OF TORT

THANK YOU
DIFFERENCE BETWEEN TORT AND CRIME
Difference between Tort and Crime can be clearly
understood by following points-

1. Less serious wrongs are considered to be private


wrongs as Tort whereas more serious wrongs are
considered to be public wrong as Crime.
example - nuisance under tort and crime (S.268).
DIFFERENCE BETWEEN TORT AND CRIME
Difference between Tort and Crime can be clearly
understood by following points-

• According to Blackstone – “wrongs are divisible into two


sorts or species, private wrongs and public wrongs. The
former are infringement or privation of private or civil
rights belonging to individuals. The latter are breach and
violation of public rights and duties which affects the
whole community and are distinguished by harsher
application of crime and misdemeanours.”
DIFFERENCE BETWEEN TORT AND CRIME
Difference between Tort and Crime can be clearly
understood by following points-

2. Tort being a private wrong, injured party himself


has to file a suit as a plaintiff. Whereas in criminal
case, crime being a public wrong, the criminal
proceeding is always initiated by the State.
DIFFERENCE BETWEEN TORT AND CRIME
Difference between Tort and Crime can be clearly
understood by following points-

3. In Tort, being a private wrong, injured party may


enter into a compromise with tort-feasor. Whereas
in criminal proceeding, the victim has no right to
enter into a compromise except in certain cases.
DIFFERENCE BETWEEN TORT AND CRIME
Difference between Tort and Crime can be clearly
understood by following points-

4. In Tort, end of justice met by awarding


compensation whereas in criminal proceeding, the
wrongdoer is punished. Although section 357 of
Cr.P.C provides for compensatory justice.
DIFFERENCE BETWEEN TORT AND CRIME

CRIME
TORT
• PUBLIC WRONG
• PRIVATE WRONG
• MENS REA
• MENS REA NOT
NECESSARY • THE CASE IS FOR
PUNISHMENT
• THE SUIT IS FOR DAMAGES
• COMPOUNDING NOT
• COMPOUNDING POSSIBLE
POSSIBLE
• NOT CODIFIED
• CODIFIED
DIFFERENCE BETWEEN TORT AND CONTRACT
Difference between Tort and Contract can be clearly
understood by following points-

1. In Tort, action arises on breach of duty primarily


fixed by law whereas in Law of Contract, the breach
of duty arises from the term of contract entered
into by both the parties.
DIFFERENCE BETWEEN TORT AND CONTRACT
Difference between Tort and Contract can be clearly
understood by following points-

2. In a contract the duty is based upon the privity of


contract and party obeys the duty only to
contracting parties only, whereas in law of Tort the
duty is not based upon privity of contract.
Example – Donoghue v. Stevenson, 1932
DIFFERENCE BETWEEN TORT AND CONTRACT
Difference between Tort and Contract can be clearly
understood by following points-

3. Damages is the main remedy in both the cases. In


Contract, damages are liquidated whereas in Law of
Tort, damages are unliquidated.
DIFFERENCE BETWEEN TORT AND CONTRACT
TORT
CONTRACT
RIGHT IN REM
 UNLIQUIDATED RIGHT IN PERSONAM
DAMAGES  LIQUIDATED
 DOCTRINE OF DAMAGES
PRIVITY OF  DOCTRINE OF
CONTRACT NOT PRIVITY OF
APPLICABLE CONTRACT APPLY
DIFFERENCE BETWEEN TORT AND
QUASI - CONTRACT
Difference between Tort and Quasi-Contract –
• Meaning of Quasi – contract - Chapter V of the Indian contract
Act, 1872 deals with the “certain relations resembling to those
created by contract”.
• A transaction in which there is no contract between the parties;
• law creates certain rights and obligation between them which are
similar to those created by a contract.
DIFFERENCE BETWEEN TORT AND
QUASI - CONTRACT
Quasi-Contract –
• Section 68 – claim for necessary supplied to a person incapable of
contracting, or on his own account.
• Section 69 – reimbursement of person paying money due by another, in
payment of which he is interested.
• Section 70 – obligation of person enjoying benefit of non-gratuitous act.
• Section 71 – responsibility of finder of goods.
• Section 72 – person to whom money is paid or thing is delivered by
mistake.
DIFFERENCE BETWEEN TORT AND
QUASI - CONTRACT
• if a person in whose home certain goods have been left by
mistake is bound to restore them. This shows that a person cannot
entertain unjust benefits at the cost of some other person.
• Based on the principle of unjust enrichment.
• In an action for unjust enrichment, the following essentials have
to be proved:
• The defendant has been “enriched” by the receipt of a “benefit”.
• The enrichment is “at the expense of the plaintiff”.
• The retention of the enrichment is “unjust”.
DIFFERENCE BETWEEN TORT AND
QUASI - CONTRACT
Difference between Tort and Quasi-Contract can be clearly
understood by following points-
• if a person in whose home certain goods have been left by mistake is
bound to restore them. This shows that a person cannot entertain
unjust benefits at the cost of some other person.
• Based on the principle of unjust enrichment.
• In an action for unjust enrichment, the following essentials have to be
proved:
• The defendant has been “enriched” by the receipt of a “benefit”.
• The enrichment is “at the expense of the plaintiff”.
• The retention of the enrichment is “unjust”.
DIFFERENCE BETWEEN TORT AND
QUASI - CONTRACT
Difference between Tort and Quasi-Contract can be
clearly understood by following points-
• In both Tort and Quasi Contract, the duty in each case is imposed
by law.
• Distinction is in Quasi-contract the remedy is liquidated whereas
in Tort, it is unliquidated.
• In Quasi-contract, the duty is always towards particular specific
person whereas in Tort, duty is always towards persons generally.
• Nature of Legal Damage

• Based upon two maxims.


• Injuria sine damno.
• Damnum sine injuria
Injuria sine damno-
• Injuria means Infringement or violation of legal right conferred on
the plaintiff by unauthorised interference.
• Damno means substantial harm, loss or damage in respect of
money, comfort, health or the like.

• Injuria sine damno means violation of a legal right without causing


any harm, loss or damage to the plaintiff.
Injuria sine damnum-
• Ashby v. White (1703) 2 Lord Raym 938
• Plaintiff was a qualified voter at a parliamentary election.
• Defendant a returning officer, wrongfully refused to take plaintiff’s
vote.
• No loss was suffered by such refusal because the candidate for whom
he wanted to vote won the election .
• In spite of that it was held that defendant was liable.
Bhim Singh v. State of J and K AIR 1986 SC 494
• The petitioner was wrongfully detained by the police while he was going to
attend the assembly.
• He was not produced before the magistrate within the requisite time.

• The member was deprived of his constitutional right to attend the assembly
session and it was also the violation of Art 21 personal liberty.

• The SC provided exemplary damages amounting to Rs 50,000 to Petitioner.


DAMNUM SINE INJURIA

 DAMNUM – Damage - loss Of Money, health, service

 INJURIA-Infringement of Legal Rights or Breach of Legal Rights

 it means Damages or loss without injury

 damage which is not coupled with an unauthorised interference with the


plaintiff’s lawful right.

 Causing of damage, however substaintial to another person is not actionable in


law unless there is also violation of a legal right of the plaintiff
DAMNUM SINE INJURIA

 Gloucester V. Grammer School 1441 YB 11 Henry IV , 47


 School master setup another school.
 Due to competition, plaintiff reduced the fee from 40 pence to 12 pence.
 Brought a suit against school master.
 It was held that Bona fide competition can afford no ground of action.
DAMNUM SINE INJURIA
 Mayor of Bradford v. Pickles,1895 AC 587.
 Defendant were annoyed when the Bradford corporation refused to purchase his
land in connection with the scheme of water supply for the inhabitants of the
town.
 In revenge, defendant sank a shaft on his own land and which diminished and
discoloured the underground water flowing to the land of plaintiff
 No cause of action, The plaintiffs could have no property in the water until it
came on their land and they collected it, and ‘if the owner of the adjoining land is
in a situation in which an act of his, lawfully done on his own land, may divert the
water which would otherwise go into the possession of this trading company, I see
no reason why he should not insist on their purchasing his interest from which this
trading company desires to make profit.’
 The exercise of a legal right is not an unlawful abuse of that right merely by reason
of a predominant improper or ulterior purpose.
DAMNUM SINE INJURIA

 Mogul Steamship Co v. McGregor ,Gow & Co., 1892 AC 25

 Ship-owner, who shipped tea from China to English


 Rival ship-owner
 Special Concession to Customer
 Plaintiff is not entitled to get damages.
 Competition with deliberate infliction of harm affords no ground of action.
MENTAL ELEMENT IN TORTIOUS LIABILITY

• Mental element is an essential element in most of the forms of crime.


• Actus rea or mere act of a person is not enough to create his liability.
• Mens rea or guilty ,mind is also required.
• Fault when relevant
• In many of the branches of law of torts like assault, battery, false
imprisonment, deceit, malicious prosecution and conspiracy the state of
mind of a person is relevant to ascertain his liability.
• It is important to see here that whether a particular wrongful act was done
intentionally or maliciously.
• Rule of reasonable person or ordinary prudence to check the liability of
wrong person.

• Mental element may become relevant in another way also. If the


defendant’s conduct is innocent in so far as that act done was due to an
inevitable accident, he may be excused from liability.
• for e.g., if a person has no reason to believe that there are electric wires
beneath his land and the same get damaged on making excavations there,
then the person will not be liable for damages to the wires.
• Similarly pulling out a drowning man out of water, forcibly feeding a hunger
striking prisoner, or performing of an operation of an unconscious person by
a surgeon to save the former’s life are not actionable.
• Liability without fault-
• Here innocence of the defendant or honest mistake on his part is no
defence.
• For e.g., In tort of conversion an auctioneer who sells goods, under an authority from
a customer having no title to the goods, is liable for conversion, even though at the
time of sale he honestly believed that customer was the true owner.
• Vicarious liability (Qui facit per alium facit per se)
• Strict liability
• Absolute liability.
• In case of defamation also, the defendant can be made liable when he did
not intend to defame but his act turns out to be defamatory.
• Cassidy v. Daily mirror Newspaper

• In Wilkinson v. Downston, (1897) 2 QB 57 the defendant joked to the


plaintiff that her husband had met with an accident and was admitted to a
hospital. This news shocked her and she fell seriously ill. Thereafter, she sued
the defendant for damages under tort. The defendant contended that he
never wanted to cause any harm to the plaintiff but cut a joke only. The
court rejected his contention and held him liable. Here, the court observed
that mere intention is not an essential element in tort. The defendant knew
the natural and probable consequences of his act which caused damage to
the plaintiff. Therefore, he was liable, whether he intended it or not.
MALICE IN LAW AND MALICE IN FACT

• Malice has been used in two different senses:


• A wilful act done without just cause or excuse it is known as malice in law
• When there is an evil motive the same is known as malice in fact.

• Malice in law simply means a wrongful intention which is presumed in case


of an unlawful act, rather than a bad motive or feeling of ill-will.
• For e.g., in an action for defamation it may be mentioned that the alleged
statement was published falsely and maliciously. Here it simply means that
the statement is false and is also made without lawful justification.
• Malice in fact or evil motive- it means an evil motive for wrongful act. When
the defendant does a wrongful act with a feeling of spite, vengeance or ill-
will, the act is said to be done maliciously.
• Motive means an ulterior reason for the conduct. It is different from
intention, which relates to the wrongful act itself. The immediate intention of
a person may be to commit theft, the motive for the theft may be to buy
food for his children or to help a poor man.
• As a general rule, motive is not relevant to determine a person’s liability in
the law of Torts.
• 1) A wrongful act does not become lawful merely because the motive is
good.
• 2) Similarly a lawful act does not become wrongful because of a bad
motive or malice.
• Case relating to point (1)- South Wales Miners Federation v. Glamorgan coal
company (1905) AC 239
• The plaintiffs, the owner of coalmines brought an action against the
defendants a miner’s union for inducing its workmen to make the breach of
contract of their employment by ordering them to take certain holidays.
• The act of the defendants was not actuated by any ill will but the object was
to keep up the price of coal by which the wages were regulated.

• The defendants were held liable.


• Case relating to point (2) Bradford Corporation v. Pickels (1895) AC
587
• In this case defendant made certain excavations over his own land
as a result of which the water which was flowing in unknown and
undefined channels from his land to the adjoining land of
corporation was discoloured and diminished.
• It was done with a motive to coerce the plaintiff to purchase the
defendant’s land at a high price.
• In this case the damage was caused maliciously but at the same
time the defendant was making a lawful use of his own land.
• Hence defendant was not held liable.
Exception to the rule
• When act is unlawful and wrongful, intention can be gathered from
circumstances.
• Balak glass emporium v. United India insurance co.
• In deceit, conspiracy, malicious prosecution and injurious
falsehood, it is essential to prove malice on the part of defendant.
• In cases of defamation, wherein qualified priviledge or fair
comment is pleaded as defence. It is essential to prove malice or
evil motive.
Exception to the rule
• Causing of personal discomfort by an unlawful motive may turn an
otherwise lawful act into nuisance.
• Hollywood Silver fox farms ltd. V. Emmet, 1962

• Malice may result in aggravation of damages.


CYBER TORTS
• Cyber torts are the latest and perhaps the most complicated
problem in the cyber world.

• “Cyber torts may be said to be those species, of which, genus is the


conventional torts, and where either the computer is an object or
subject of the conduct constituting tort”.

• “Any criminal activity that uses a computer either as an


instrumentality, target or a means for perpetuating further crimes
comes within the ambit of cyber tort.
• A generalized definition of cyber tort may be “ unlawful acts wherein the
computer is either a tool or target or both”.
• The computer may be used as a tool in the following kinds of activity-
• financial crimes,
• sale of illegal articles,
• pornography,
• online gambling,
• intellectual property crime,
• e-mail spoofing,
• forgery,
• cyber defamation,
• cyber stalking.
• The computer may however be target for unlawful acts in the following
cases-
• unauthorized access to computer/computer system/computer networks,
• theft of information contained in the electronic form,
• e-mail bombing,
• data diddling,
• salami attacks (stealing money or resources),
• logic bombs,
• Trojan attacks,
• internet time thefts,
• web jacking.
• The sine qua non for cyber tort is that there should be an
involvement, at any stage, of the virtual cyber medium i,e.
Cyber space.
REASONS FOR OCCURRENCE OF CYBER
TORT
• 1. Capacity to store data in comparatively small space- The computer has
unique characteristic of storing data in a very small space. This affords to
remove or derive information either through physical or virtual medium
makes it much more easier.
• 2. Easy to access-The problem encountered in guarding a computer system
from unauthorized access is that there is every possibility of breach not due
to human error but due to the complex technology.
• By secretly implanted logic bomb, key loggers that can steal access codes,
advanced voice recorders, retina imagers etc. that can fool biometric systems
and bypass firewalls can be utilized to get past many a security system.
• 3. Complexity of systems-The computers work on operating systems and
these operating systems in turn are composed of millions of codes.

• Human mind is fallible and it is not possible that there might not be a lapse
at any stage.

• These lacunas can be taken advantage of and computer security systems


can be penetrated into.
• 4. Negligence- Negligence is very closely connected with human conduct. It is
therefore very probable that while protecting the computer system there
might be any negligence, which in turn provides a loop hole to gain access
and control and in turn misuse the computer system.

5. Loss of evidence- Loss of evidence is a very common & obvious problem as


all the data are routinely destroyed as they are updated every next moment.
• Further collection of data outside the territorial extent also paralyses this
system of investigation.
BROAD CLASSIFICATION OF CYBER TORT
• Harassment via e-mails
• Cyber-stalking
• Dissemination of obscene material/ Indecent exposure/ Pornography
(basically child pornography)
• Defamation
• Unauthorized control/access over computer system
• E mail spoofing
• Intellectual Property crimes -software piracy, copyright infringement,
trademark violation, theft of computer source code, etc
• Cyber terrorism against the government organization
• Online Fraud & Cheating
STATUTORY PROVISIONS

• The Information Technology Act 2000


• Ss. 43,65,66,67.
• Section 43 in particular deals with the unauthorised access, unauthorised
downloading, virus attacks or any contaminant, causes damage, disruption,
denial of access, interference with the service availed by a person. This
section provide for a fine up to Rs. 1 Crore by way of remedy.

• Section 65 deals with ‘tampering with computer source documents’ and


provides for imprisonment up to 3 years or fine, which may extend up to 2
years or both.
• Section 66 deals with ‘hacking with computer system’ and provides for
imprisonment up to 3 years or fine, which may extend up to 2 years or both.

• Further section 67 deals with publication of obscene material and provides for
imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs.
• in Rindos v. Hardwick.
an anthropologist was denied tenure at the University of West Australia, A rival
anthropologist, Hardwick, posted a statement supporting the university’s
decision and accusing Rindos of sexual deviance and of research detrimental to
the aboriginal people of Australia.

• United States v. Morris, 1991


The defendant in Morris was a graduate student who had released an Internet
worm that paralyzed thousands of university and military computers throughout
the United States. Was held liable.
• Thank you
GENERAL DEFENCES UNDER TORT

• Volenti Non Fit Injuria


• It means ‘where the suffer is willing, no injury is done’.

• In other words, when a person consents to the infliction of some


harm upon himself, it does not constitute a legal injury and,
therefore, is not actionable.

60
Consent to suffer the harm may be express or implied. It can be inferred from
the conduct of the parties.

Express Consent
When you send an invitation card and invite somebody to your house, you
cannot sue him for trespass; or When you submit yourself for surgical
operation, you cannot sue the hospital authorities for doing the same.

Implied Consent
A player in the games of cricket, hockey, rugby or boxing is deemed to be
agreeing to any hurt which may be likely in the normal course of the game.

61
ESSENTIALS

• Consent must be free;

• Consent cannot be given to an illegal act;

• Knowledge of risk is not the same thing as consent to run the risk.
62
A. CONSENT MUST BE FREELY GIVEN

• The consent is not free if it has been obtained by undue influence,


coercion, fraud, misrepresentation, mistake or the like elements
which adversely affect a free consent.

• Imperial Chemical Industries Ltd. V. Shatwell, (1964) 3 WLR 329 (HL)


The plaintiff was employed by the defendant on a barge, and plaintiff
received injuries owing to the breaking of a defective rope by which the
barge was being pulled. It was held that there was no implied consent
to bear the risk on the part of the plaintiff as he had no knowledge of
the defective rope. 63
Hall v. Brooklands Auto-Racing Club, (1933) 1 KB 205

• 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 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.
64
Arthur v. Anker, [1996] 3 All ER 783, [1997] QB 564

A motorist, who parked his car on his private land after having been given
notice that the landowner objected and might clamp his wheels, was deemed
to have consented when this occurred.

65
Vine v. London Borough of Waltham Forest [2000] 4 All ER 169

• A car driver felt sick, turned hurriedly into a private car park, got out and was
sick a shot distance away. She returned to find the car wheels clamped. There
was a warning notice, but it was partly obscured by another vehicle. She
recovered damages because she had not consented to the risk of clamping.

66
Murray v. Harringay Arena Ltd [1951] 2 All ER 320

The defendants were held not liable where a young spectator was struck in the
eye by a hockey puck.

67
B. CONSENT CANNOT BE GIVEN TO AN ILLEGAL ACT

No consent can legalise an unlawful act or an act which is prohibited


by law.

• Fighting with naked fists, duel with sharp swords are unlawful and
even though the parties may have consented, yet the law will
permit an action at the instance of the plaintiff.

68
C. KNOWLEDGE OF RISK IS NOT THE SAME THING AS CONSENT TO RUN
THE RISK

Smith v. Charles Baker & Co, [1891] AC 325

• In this case, the plaintiff working a drill for cutting a rock. And by the help of
crane, stones were being conveyed from one place to another by passing over
the head of plaintiff.

• Both he and employers knew that there was a risk of stones falling, but no
warning was given to him of the moment at which any particular jibbing
commenced.

• A stone from the crane fell upon him and injured. The House of Lords held
that defendants were liable. 69
EXCEPTION TO THE RULE

• Rescue Cases

• Doctrine of assumption of risk does not apply where plaintiff has under an
exigency caused by defendant’s wrongful misconduct, consciously and
deliberately, faced a risk, even of death to rescue another from imminent
danger of personal injury or death, the defence of leave and licence is not
applicable to the plaintiff, whether the person endangered was one to whom
he owed a duty of protection as a member of his family, or was a mere
stranger to whom he owed no such duty.
70
• Haynes v. Harwood, (1935) 1 KB 146

• The defendant negligently left his horses unattended in a crowded street, a


boy threw a stone at them and they ran helter-skelter. The plaintiff, constable
on duty, perceiving the danger to the lives of the persons, ran out and
stopped the horses but was seriously injured.

• It was held:
• That he was entitled to recover damages, as the defendant was grossly
negligent, and
• That the defence of Volenti non fit Injuria was held not to apply to the rescue
cases, the act of a third party also intervening and the voluntarily undertaking
the risk by the plaintiff were not open to the defendant. 71
• Dr. J N Srivastava v. Ram Bihari Lal and Others, AIR 1982 M.P. 132

• The doctor observed after opening the abdomen cavity that


patient’s appendix was all right but the operation of Gall-bladder
was needful. He proceeded with the operation- later on the patient
died. The Court held that it was not possible to seek the consent for
the Gall-bladder operation. In such circumstances doctor was not
responsible.

72
• Baker v. T.E. Hokins and Sons, (1959) 1 WLR 966

• A well was filled with poisonous fumes of a petrol driven pump on account of
negligence of the employer, as a result of which two workmen were
overcome by fumes. Dr. Baker was called to rescue their lives but he was told
not to enter the well in view of the risk involved. Still he preferred to enter
the well with a view to save their lives. In the attempt of saving them he
himself was overcome by the fumes and he died.

• The widow of Dr. Baker sued the employer to claim compensation for her
husband’s death. The defendants pleaded Volenti non fit Injuria.

• It was held that the act of rescuer was the natural consequence of the
defendant’s negligent act which he could have foreseen and therefore, the
defence of Volenti non fit Injuria did not apply. The defendants were,
73 thus,
held liable.
DISTINCTION BETWEEN VOLENTI NON FIT INJURIA &
CONTRIBUTORY NEGLIGENCE

• In case of Volenti Non Fit Injuria, the plaintiff is always aware of the nature
and extent of the danger which he encounters, while it is not so in case of
Contributory negligence.

• Volenti Non Fit Injuria is a complete defence, whereas in contributory


negligence the claim of the plaintiffs is reduced to the extent the claimant
himself was to blame for the loss.
74
ACT OF GOD/VIS MAJOR

• Act of God may be defined as-

“circumstances which no human foresight can provide against any


of which human prudence is not bound to recognise the possibility,
and which when they do occur, therefore, are calamities that do
not involve the obligation of paying for the consequences that
result from them”.
75
• Greencock Corporation v. Caledonian Railway Co. (1917)

• This defence is available ‘in circumstances which no human


foresight can provide against, and which human prudence is not
bound to recognise the possibility.’

• Illustrations: The falling of a tree, a flash of lightening, a tornado,


storms, tempests, tides, volcanic eruptions, or a flood

76
The essential conditions of this defence are:

• There must be working of natural forces without any intervention from


human agency, and

• The occurrence must be extraordinary and not one which could be


anticipated and reasonably guarded against.

77
• Nicholas v. Marshland, (1875) 2 KB 297

• The defendant constructed three artificial lakes which were fed by a


natural stream. The lakes were well constructed and adequate in all
normal circumstances.

• An extraordinary rainfall burst the banks of artificial lakes on the


defendant’s property and the floodwater destroyed a number of bridges
owned by the county council.

• It was held that the defendant was not negligent and the accident was
due to an act of God.
78
Ramalinga Nadar v. Narayan Reddiar, 1971

• It was held that criminal activities of unruly mob, which robbed


the goods transported in defendant’s lorry can not be an act of
god.
• The defendant was held liable for loss of goods.

79
Kallu lal v. Hemchand, 1958

• Wall of building collapsed on a day when there was rainfall of 2.6


inches.
• That resulted into death of two children.
• The M.P. High Court held that defendant (appellant) could not take
defence of act of god as such of rainfall in rainy season was not
extra ordinary.

80
INEVITABLE ACCIDENT

• An ‘inevitable accident’ is that which could not possibly, be prevented


by the exercise of ordinary care, caution and skill.

• A. Krishna Patra v. Orissa State Electricity Board, AIR 1997 Orissa 109

• The Orissa High Court defined ‘Inevitable accident’ as an event which


happens not only without the concurrence of the will of the man, but
in spite of all efforts on his part to prevent it. 81
Stanley v. Powell, (1891) 1 QB 86

• The plaintiff, who was engaged in carrying cartridges and game for the
party, was hit by a shot fired by the defendant while on an organised
pheasant shoot when the shot glanced off a tree before hitting the
plaintiff.

• It was held that the defendant was not liable.

82
• National Coal Board v. Evans, (1951) 2 KB 861

• In this case a colliery company preceded the National Board, had


buried an electric cable in the county council’s land. The county
council’s contractor damaged the cable while excavating land and
the fact that electric cable was buried under the land was not
known to the council or contractor.

• It was held that in these circumstances, neither the council nor the
contractor would be liable for damage of cable and the defence of
inevitable accident was allowed.
83
• Padmavati V. Dugganika, 1975

• Two strangers got lift in jeep.


• Bolt fixing right front wheel of jeep gave way, due to which wheel
flew away.
• Resulted into serious injuries to two person. One of them died.
• Defendant was not held liable. As it was a sheer accident. There
was no evidence to show that defect was patent one.

84
Plaintiff the wrong doer

• What it means?

• Based upon “Ex turpi causa non oritur actio”

• it means from an immoral act, no action arise.

• Used in law of Contract.

85
Plaintiff the wrong doer

• According to Pollock – “it is doubtful that whether the defendant


can take such a defence under the law of Torts and can escape the
liability by pleading that at the time of defendant’s wrongful act,
the plaintiff was also engaged in wrongful act”

86
Plaintiff the wrong doer

• In Green v. Carrol, 1961

• It was held that mere fact that the plaintiff was also at fault does
not disentitle him from recovering from the defendant’s wrongful
act.

87
Plaintiff the wrong doer

• In Barnes v. Ward 1859

• It was held that trespasser is liable to an action for the injury he


does but he does not forfeit his right of an action for injury
sustained.

88
Plaintiff the wrong doer

• In Bird v. Holbrook, 1828

• Plaintiff, a trespasser on defendant’s land was entitled to claim


compensation for injury caused by a spring gun set by the
defendant without a notice.

89
Plaintiff the wrong doer

• According to Pollock, it has to be seen that what is connection


between plaintiff’s wrongful act and a harm suffered by him.

• If his own act is determining cause of harm suffered by him, he has


no cause of action.

90
Thank you

91
NECESSITY

Necessity knows no law.

This is intentional damage to prevent even greater destruction or in


defence of the realm.

The exception of necessity is based on the maxim Salus Populi


Suprema Lex i.e. the welfare of the people is the Supreme Law.
92
Illustration:

One arresting and restricting the movement of the drunken person who is
likely to cause danger to the people at large, can successfully plead necessity
as a defence.

However, one who puts live electric wires on his land to stop the trespassers
cannot successfully avail this defence if he does not give notice, warning of
such dangerous thing.

93
Cope v. Sharpe, (1912)

A fire broke out on A’s land.

 defendant entered into plaintiff’s land to prevent the fire from spreading to
adjoining land over which the defendant’s master was having shooting rights.

The Court held that the gamekeeper was not liable for there was a real and
imminent danger to the game which justified the action taken by the
defendant.

94
LIMITS OF THE DEFENCE OF NECESSITY

Olga Tellis v. Bombay Municipal corporation, (1985) 3 SCC 545

The Supreme Court held that “under the law of tort necessity is a plausible
defence, which enables a person to escape liability on the ground that the
acts complained of are necessary to prevent greater damage, inter alia, to
himself. So the trespass on some property cannot be justified always on the
basis of necessity.

The defence is available if the act complained of was reasonably demanded


by the danger or emergency”.
95
Section 81 of the Indian Penal Code

Nothing is an offence merely by reason of the being done with the


knowledge that it is likely to cause harm, if it be done without any criminal
intention to cause harm, and in good faith for the purpose of preventing or
avoiding other harm to person or property.

Explanation: It is a question of fact in such a case whether the harm to be


prevented or avoided was of such a nature and so imminent as to justify or
excuse the risk of doing the act with the knowledge that it was likely to
cause harm.

96
Illustration:

A, in a great fire, pulls down houses in order to prevent the conflagration
from spreading. He does this with the intention in good faith of saving human
life or property.

Here, if it be found that the harm to be prevented was of such a nature and
so imminent as to excuse A’s act, A is not guilty of the offence.

97
Dhania Daji, (1868) 5 BHC (CrC) 59

 A person placed poison in his toddy pots, knowing that if taken by a human
being it would cause injury, but with the intention of thereby detecting an
unknown thief who was in the habit of stealing the toddy from his pots. The
toddy was drunk by and caused injury to some soldiers who purchased it from
an unknown vendor.

 It was held that the person was guilty under section 328 (causing hurt by
means of poison or any stupefying, intoxicating or unwholesome drug or
other thing with intent to commit an offence), and that section 81 did not
apply.

98
PRIVATE DEFENCE

If the tort is committed by a person acting to protect him/herself, members of


his/her family or his/her property, or even persons generally, there will be no
liability if the action is a reasonable response to the harm threatened.

In other words, no action is maintainable for damage done in the exercise of
one’s right of private defence of person or property provided that the force
employed for the purpose is not out of proportion to the harm apprehended.
99
PRIVATE DEFENCE

Essentials of Private defence

Imminent threat to the person’s life or property.

Use of force by defendant.

 the use of force should not be excessive, it should be in proportion of attack.


100
Turner v. Jagmohan Singh, ILR (1905) 27 All. 531

A vicious stallion repeatedly attacked a pair of mares belong to the carriages


in which the defendant was being driven, and finally came into the
defendant’s compound in spite of attempts made to prevent him, and
continued his attacks until the defendant getting hold of a spear inflicted
somewhat severe wound on the left hind quarter of the stallion. After this the
stallion made off, but subsequently died from the effects of the wound.

It was held that the defendant’s action was justifiable and the owner of the
stallion was not entitled to any damages.
101
Morris v. Nugent, (1836) 7 C & P 572

The defendant was passing by the plaintiff’s house. The plaintiff’s dog ran
out, and bit the defendant. On the defendant’s turning round, raising his gun,
the dog ran away and he shot the dog as it was running away.

It was held that the defendant was not justified in doing so. To justify the
shooting of the dog, he must be actually attacking the party at the time.

102
Cook v. Beal, 1667

It was observed that if A strikes B, B can not justify drawing of sword and
cutting off his hands. Because it is an excessive use of force.

103
Ramanuja Mudali v. M. Gangan, AIR 1984

 the plaintiff used to pass through the defendant’s land to reach his land.
 the defendant laid some electric wires on his land.
Not intimated to plaintiff.
 plaintiff while crossing got shock.
The defendant was held liable.

104
Sections 96-106 of the Indian Penal Code

As per section 96 IPC nothing is an offence which is done in the exercise of the
right of private defence.

Further section 97 authorises one to exercise right of private defence to


protect one’s person and property and also that of other person, subject to
restriction as placed under section 99 that there is no right of private defence
against any act which does not reasonably cause the apprehension of death or
of grievous hurt, if done…the right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for the purpose of defence.
105
Sections 96-106 of the Indian Penal Code

As per section 96 IPC nothing is an offence which is done in the exercise of the
right of private defence.

Further section 97 authorises one to exercise right of private defence to


protect one’s person and property and also that of other person, subject to
restriction as placed under section 99 that there is no right of private defence
against any act which does not reasonably cause the apprehension of death or
of grievous hurt, if done…the right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for the purpose of defence.
106
MISTAKE

The general rule is that mistake, whether of the law or of fact, is no defence in
tort.

Mistake of fact is defence under criminal law u/Section 76, 79 of IPC.

A defendant cannot argue that he or she did not know the law relevant to his or
her case.

The maxim ignorantia legis non excusat i.e. ignorance of the law is no excuse,
applies. 107
In Consolidated co. v. Curtis, 1894

 Auction was asked to auction certain goods by his customer.

 Honestly believing customer as owner, he auctioned the goods.

 the real owner brought action for conversion.

Auctioneer was held liable.


108
In Basely v. Clarkson, 1681

 A trespass to land is actionable per se. so a trespass on to land which the


trespasser mistakenly but honestly believes belongs to him, or he believes
he has right of entry to, can be liable for trespass.

109
In respect of a mistake of fact, there are some exceptions to the rule. They
are:

Malicious Prosecution: If a police officer or private prosecutor commences a


prosecution under the mistaken belief that the plaintiff is guilty but the
plaintiff turns out to be innocent, this will provide a defence to an action for
malicious prosecution.

False Imprisonment: If a police officer, without a warrant, arrests the


plaintiff in the mistaken belief of reasonable suspicion that a person has
committed an arrestable offence, the police officer is not liable for false
imprisonment. The police officer has to show he had grounds for his beliefs.
110
STATUTORY AUTHORITY

• Statutory authority means “an authority or power given by law to do certain


acts and if a tort is committed in the course of any such act, the injured
person will have no claim unless the act has been done negligently”.

• The basic philosophy behind the statutory immunity is that the lesser
private right must yield to the greater public interest.
111
• The extent of the protection available to a public authority depends on
whether the authority is absolute or conditional. Such a condition may be
express or implied.

• In case of absolute statutory authority the immunity is available against


both the act and its natural consequences. Nuisance or some other harm
may cause but there is no liability for the same.

• If absolute, then the authority is not liable provided it has acted reasonably
and there is no alternative course of action.

• e.g. to acquire land for the laying down of the railway track; the noise and
vibration will be caused by running the train on it. 112
• If an act is done in pursuance of a mandatory provision of law the authority
executing that mandate is not liable for any loss which is caused to the
plaintiff if that authority has been negligent in performance of the duty.

• Government can acquire land even against the will of people for the
development purpose as they have statutory authority;

• but a builder cannot force one to sell his property under the garb of
development, as he has not statutory authority.

113
Ram Gulam v. Government of the United Province, (1951) 1 All. 135

• Certain ornaments were stolen from the house of the plaintiff. On a search
made by the police they were recovered from another house and produced as
exhibits at the trial of those who were prosecuted in connection with the
theft. Thereafter they were kept in the Collectorate godown from where they
were again stolen and could not be traced.

• The Plaintiff sued the Government of the United Provinces for recovery of the
ornaments, and in the alternative for the recovery of their price.

• It was held that the Government was not liable as the alleged tortuous act
was performed in discharge of an obligation imposed by law. [Also see
Kasturilal v. State of U.P. AIR 1965 SC 1039]
114
Vaughan v. Taff Vole Rly. Co. (1860) 5 H&N 679

• The defendants were not liable for fires caused by sparks from engines
since they were obliged to operate a railway and had done so with proper
care.

115
• Where the authority is conditional,
• the public authority has the power to act provided it is possible without
causing nuisance or some other harm.
• it may carry out the relevant act only if there is no interference with the
rights of others.

116
In Metropolitan Asylum District v. Hil, 1881

• Appellant hospital authority were empowered to set up small pox hospital.


• Erected hospital in residential area.
• Residents objected it on the ground of danger of infection.
• It was held to be nuisance and appellants were issued injunction to remove
hospital.

117
• Fisher v. Ruislip-Northwood UDC, (1945)

• The local authority had, by statute, been given power to erect air-raid
shelters on the highway. In the black-out, Fisher drove his motor cycle into
such a shelter, and was injured. When sued for the tort of public nuisance,
the Council pleaded that it had statutory authority to put up the shelter.

• The defence failed, because the Council could, even in the black-out, have
put up small, shaded warning lights for motorists. The Council only had
statutory authority on condition that it was exercised with care for the
safety of others.

118
Case Analysis
Parrot v. Wells, Fargo & Co. (The Nitro-Glycerine Case)
82 U.S. 524, 21 L. Ed. 206, 15 Wall. 524 (1872)

Facts –
The landlord's buildings were damaged by a package that exploded.
The tenants, express carriers, did not know the contents of the package or
have any reason to suspect its dangerous character.
 Landlord filed a suit for damages for causing damage to his other
buildings which were given to other tenants.
The trial court held that the tenants were not liable for injuries to that
portion of the buildings not covered by their lease.
119
 The landlord filed an appeal in United States Supreme Court.

Judgement

 United States Supreme Court affirmed the decision by observing that the
tenants, as carriers, had no duty to require knowledge of the contents of the
package unless there were good grounds for believing that the package
contained something dangerous.

They were not liable for injuries resulting from an unavoidable accident that
occurred while they were engaged in a lawful business and exercising the
standard of care required of a person of ordinary prudence and caution.
120
Case Analysis
Collins v Renison, 1754

Facts –
The plaintiff went upon a ladder for nailing a board in the defendant’s
garden wall.

 the defendant asked him to come down but he refused.

 on this the defendant overturned ladder which resulted into injuries to


plaintiff.

Plaintiff filed a suit for damages.


121
Case Analysis
Collins v Renison, 1754

Facts –
 the defendant took the plea of private defence by saying that the plaintiff
was trespassing.

Judgement

 the Court rejected the plea by stating that You may only use reasonable
force to eject someone; if the force used is not, then you cannot rely on
self-help. 122
Than You

123
Defamation

 What is defamation?

124
Definition of Defamation –

According to Blackstone - “Every man has right to have his reputation preserved
inviolate”-

According to Winfield- “Defamation is the publication of a statement which


tends to lower a person in the estimation of right thinking member of the
society generally.”

According to Salmond- “Defamation is the publication of a false and defamatory


statement concerning another person without lawful justification”

Bhagwat Gita-” For a man of honour, defamation is worse than death.”


125
Kinds of Defamation

Defamation can be broadly classify in two categories –

 Libel – representation made in permanent form.


Spoken words, gestures

Slander – publication of defamatory statement in transient form.


 writing, printing, picture, statue etc.

126
Distinction between libel and slander

 Libel is a publication of a false and defamatory statement tending to injure


the reputation of another person.
Slander is a false and defamatory statement by spoken words or gesture
tending to injure the reputation of another.

 Libel is written defamation addressed to eye as well to ear.


Slander is spoken addressed to ear only.

 Libel is in some permanent form(written or printed).


127
Slander is in a transient form ( spoken or gesture).
Youssoupoff v. M.G.M Pictures Ltd., 1934

Slesser L.J made observation regarding libel and slander in this case.

Speech synchronised with photographic part will also be considered


as libel and not slander.

128
Position of libel and slander under British Law

 Libel is offence and slander is no offence in criminal law.

 In law of Tort, Libel is actionable per se but Slander is not actionable per se
except in exceptional cases.
Exception –
Imputation of criminal offence to plaintiff
Imputation of contagious or infectious disease to plaintiff
 imputation regarding person’s incompetency, dishonesty and unfitness
in trade.
 Imputation regarding unchastity or adultery of women. It was129
created
as an exception by The slander of women Act, 1891.
Position of libel and slander under Indian Law

 Section 499 of IPC describes Libel and slander as an offence in criminal law.

 In law of Tort, both libel and slander are actionable per se without any special
proof of damage.

View has been established by various judicial pronouncements.

130
Position of libel and slander under Indian Law

In Parvathi v. Mannnar, I.L.R 1885, MAD


 Turner C.J and Muthuswamy Ayyar J. observed that English law except in
certain cases requires special proof of damages in case of oral defamation,
being founded on no reasonable basis., should not be adopted by Courts in
India.
Hirabai Jahangir v. Dinshaw Edulji, ILR 1927, BOM
 in case of unchastity of women is actionable per se without proof of special
damage.
131
Position of libel and slander under Indian Law

However in,
Bhoomi Money Dossee v. Natobar Biswas, I.L.R 1928, CAL
Contrary view was expressed by Harrington J.
 Issue was whether the law of England as it was before 1891 is applicable in
India in cases of unchastity of women?
 Harrington J. observed that there is no need to deviate from old law.
132
Position of libel and slander under Indian Law

However in,
H.C.D Silva v. E.M. Potenger, I.L.R 1946, CAL
Gentle J. supported the view given in Hirabai case and observed that “in my
view the English rule regarding special proof of damage in actions or slander
does not apply in India”.

133

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