Royal College of Law

Law of Tort
BL & BCL 2nd Sem

Q1). Define law of torts? Distinguish Tort with Crime and Contract.
ANS- Introduction-
Law is bundle of rules which regulates the external behaviour of individuals in society. Law of Torts is the
branch of law controlling the behaviour of people in the society. It is a growing branch of law and its main
object is to define individual rights and duties in the light of prevalent standards of reasonable conduct and
public convenience. It provides pecuniary remedy for violation against the right of individuals. The entire
Law of Torts is founded and structured on the principle that, ‘no one has a right to injure another
intentionally or even innocently.
The word ‘Tort’ is derived from Latin term 'Tortum' which means ‘to twist’ or a deviation from straight or
right conducts and includes that conduct which is not straight or lawful.
Tort’ is defined by various jurists as under:
“A tort 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 contract, or the breach of a trust, or the breach of other merely equitable
obligation”. – Salmond.
“A 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”. – Fraser
“Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons
generally and its breach is redressable by an action for unliquidated damages”–Winfield.
‘Tort’ is defined in Section 2(m) Limitation Act, 1963 as: “Tort is a civil wrong which is not exclusively
breach of contract or breach of trust”
'Tort' and 'Crime'
a. Tort is a private wrong. Private wrong is the infringement of civil right of an individual. It is
comparatively less serious and labelled as civil wrong. Whereas crime is a public wrong. Public wrong is a
violation or breach of rights and duties which affect the community, as a whole. It is a more serious wrong.
b. The remedy in law of tort is damages/ Compensation whereas the remedy in crime is punishment, in form
of imprisonment, fine, death penalty, forfeiture of property.
c. In case of tort the suit is filed by injured or aggrieved party where as in case of crime the complaint is filed
in the name of State as State has the responsibility to keep its citizen’s safe.
d. In case of tort the suit can be withdrawn at any time and compromise can be done with wrongdoer where
as in case of crime the complaint cannot be withdrawn except in certain circumstances provided by Code of
Criminal Procedure, 1973.
e. There is no codification in Law of Torts whereas The Criminal law is codified.
Tort and Breach of Contract
a. In tort, the duty is fixed by the law itself where as In contract, the duty is fixed by the party themselves

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b. In tort, the duty is towards every person of the community or society where as in contract, the duty is
towards specific person or persons.
c. A tort is a violation of a right in rem (that is, a right vested in some determinate person and available
against the world at large) whereas A breach of contract is an infringement of a right in personam, that is, of
a right available only against some determinate person or party.
d. In tort, measure of damages is different in different circumstances which may be nominal or exemplary
i.e. Unliquidated damages where as In Breach of contract, damages are awarded in the form of compensation
for pecuniary loss suffered.
e. Intention is sometimes taken into consideration whereas Intention, in case of breach of contract, is of no
relevance.
Q2). What are the essential elements of law of tort?
ANS- The essential elements of Law of Tort are as follows-
a. Existence of a duty of care:

The law imposes a duty on every individual to observe and maintain a reasonable standard of care when
performing any act which may potentially cause harm to another person. In order to bring a suit for a tort, it
must be proved that there existed a duty of care towards the injured party, which was subsequently breached
by the tortfeasor. It is not necessary that the injured party and the tortfeasor have a direct connection for the
duty of care to exist, rather, the duty is imposed by operation of law.
In the landmark decision delivered in Donoghue v. Stevenson, or the Snail in a Bottle case, the neighbour
principle was developed. Lord Atkin opined that “you must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour.” Naturally, this gave rise to the
dilemma about who can or cannot be considered as a neighbour. The answer to this, according to Lord Atkin,
was “persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which are called in
question.” Thus, the neighbour principle can be applied effectively to determine whether there exists a duty of
care in a particular case or not.

b. Wrongful act or omission-

The first essential ingredient in constituting a tort is that a person must have committed a wrongful act or
omission that is, he must have done some act which he was not expected to do, or, he must have omitted to
do something which he was supposed to do. There must have been breach of the duty which has been fixed
by law itself. If a person does not observe that duty like a reasonable and prudent person or breaks it
intentionally, he is deemed to have committed a wrongful act. In order to make a person liable for a tort he
must have done some legal wrong that is, violates the legal right of another person for example, violation of
right to property, right of bodily safety, right of good reputation. A wrongful act may be positive act or an
omission which can be committed by a person either negligently or intentionally or even by committing a
breach of strict duty for example, driving a vehicle at an excessive speed. The wrongful act or a wrongful
omission must be one recognized by law. If there is a mere moral or social wrong, there cannot be a liability
for the same. For example, if somebody fails to help a starving man or save a drowning child. But, where
legal duty to perform is involved and the same is not performed it would amount to wrongful act. In
Municipal Corporation of Delhi [Link], where the Municipal Corporation, having control of a clock
tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death
of number of persons, the Corporation would be liable for its omission to take care. Similarly failure to
provide safe system would, also amount to omission, held in General Cleaning Corporation Limited v.
Christmas.

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c. Legal Damage-
The second important ingredient in constituting a tort is legal damage. In order to prove an action for tort,
the plaintiff has to prove that there was a wrongful act, an act or omission which caused breach of a legal
duty or the violation of a legal right vested in the plaintiff. So, there must be violation of a legal right of a
person and if it is not, there can be no action under law of torts. If there has been violation of a legal right,
the same is actionable whether the plaintiff has suffered any loss or not. This is expressed by the maxim,
"Injuria sine damnun 'Injuria' refers to infringement of a legal right and the term 'damnum' means substantial
harm, loss or damage. The term 'sine' means without. However, if there is no violation of a legal right, no
action can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant. This is
expressed by the maxim 'Damnum sine injuria the detailed discussion of these two maxims is as follows.
d. Remedy:

As stated earlier, wherever there is a wrong, there is a remedy. Granting rights without the provision of
remedy in the case of a breach of those rights would be quite pointless. Similarly, the law of torts also
prescribes certain forms of legal remedies for injured parties, such as damages, specific restitution of property
and injunctions that are awarded by the Courts. Before awarding any relief to the claimant, the Court
examines certain aspects of the liability by performing tests such as the test of directness, test of foreseeability
and others in order to judge the remoteness of damage suffered.

Q3). Explain the legal maxim Injuria sine damno with leading cases.
ANS- Injuria Sine Damno -This maxim means infringement or violation of a legal private right of a person
even if there is no actual loss or damage. In such a case the person whose right is infringed has a good cause
of action. It is not necessary for him to prove any special damage. The infringement of private right is
actionable per se. What is required to show is the violation of a right in which case the law will presume
damage. Thus, in cases of assault, battery, false imprisonment, libel etc., the mere wrongful act is actionable
without proof of special damage. The Court is bound to award to the plaintiff at least nominal damages if no
actual damage is proved.
Thus, this maxim provides for,
1) Infringement of a legal right of a person.
2) No actual loss or damage is required to prove.
3) Infringement of a private right is actionable per se.

In Ashby v. White, the plaintiff was a qualified voter at a Parliamentary election, but 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. Plaintiff succeeded in his action. Lord Holt, C.J.,
observed as follows, "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain
it, and a remedy if he is injured in the exercise or enjoyment of it, and indeed it is a vain thing to imagine a
right without a remedy, for want of right and want of remedy are reciprocal". "Every injury imports a
damage, though it does not cost a party one penny and it is impossible to prove the contrary, for the damage
is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in
an action for slanderous words, though a man does not lose a penny by reason of the speaking of them, yet
he shall have an action. So, if a man gives another a cuff on his car, though it costs him nothing, not so much
as a little diachylon (plaster), yet he shall have his action. So, a man shall have an action against another for
riding over his ground, though it does him no damage, for it is an invasion of the property and the other has
no right to come there."

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In Municipal Board of Agra v Asharfi Lal, the facts are, the Plaintiff (Asharfi Lal) was entitled to be
entered as an elector upon the electoral roll. His name was wrongfully omitted from the electoral roll and he
was deprived of his right to vote. It was held by the court that if any duly qualified citizen or person entitled
to be on the electoral roll of an constituency is omitted from such roll so as to be deprived of his right to
vote, he has suffered a legal wrong, he has been deprived of a right recognised by law and he has against the
person so depriving him, a remedy, that is, an action lies against a person depriving I him of his right.
Similarly, in Bhim Singh v. State of J&K, the petitioner, an M.L.A. of Jammu & Kashmir
Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. Thus,
he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly
session. The court awarded exemplary damages of Rs. Fifty thousand by way of consequential relief.
In Marzetti v. Williams Bank, an action will lie against a banker, having sufficient funds in his
hands belonging to the customer, for refusing to honour his cheque, although the customer has not thereby
sustained any actual loss or damage.

Q) 4 Explain the legal maxim Damnum sine injuria with leading cases.
ANS- Damnum sine injuria means an actual and substantial loss without infringement of any legal right. In
such a case no action lies. There are many harms of which loss takes no account and mere loss of money's
worth does not by itself constitute a legal damage. The essential requirement is the violation of a legal right.
There are many forms of harm of which the law takes no account,
1) Loss inflicted on individual traders by competition in trade,
2) Where the damage is done by a man acting under necessity to prevent a greater evil,
3) Damage caused by defamatory statements made on a privileged occasion,
4) Where the harm is too trivial, too indefinite or too difficult of proof,
5) Where the harm done may be of such a nature that a criminal prosecution is more appropriate for
example, in case of public nuisance or causing of death,
6) There is no right of action for damages for contempt of court.
Gloucester Grammer School Case, Held. The defendant, a schoolmaster, set up a rival school to that of the
plaintiff. Because of the competition, the plaintiff had to reduce their fees. Held, the plaintiff had no remedy
for the loss suffered by them. Hanker J. said "Damnum may be absque injuria as if I have a mill and my
neighbor builds another mill whereby the profits of my mill is diminished... but if a miller disturbs the water
from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives."
Chesmore v. Richards, the plaintiff, a mill owner was using water for over 60 years from a stream which
was chiefly supplied by the percolating underground water. The defendants dug a well on their land deep
enough to stop the larger volume of water going to plaintiff's stream. Held, that the plaintiff has no right of
action since it was a case of damnum sine injuria.
Bradford Corporation v. Pickles, in this case, the defendant was annoyed when Bradford Corporation
refused to purchase his land in connection with the scheme of water supply for the inhabitants of the town.
In the revenge the defendant sank a shaft over his land intentionally and intercepted the underground water
which was flowing to the reservoir of the plaintiffs. Held that the plaintiffs have no cause since the defendant
was exercising his lawful right although the motive was to coerce the plaintiff to buy his land. The House of
Lords approved the ruling in Chesmore v. Richards

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Moghul Steamship Company v. McGregor Gow &Co, A number of steamship companies acting in
combination agreed to regulate the cargoes and freight charges between China and Europe. A general rebate
of 5 per cent was allowed to all suppliers who shipped with the members of the combination. As a result of
this action, the plaintiffs had to bring down their rates to that level which was un remunerative to them.
'Held, that there was no cause of action as the defendants had acted with lawful means to increase their trade
and profits. No legal injury was caused and the case fell within the maxim damnum sine injuria.
Dickson v. Renter's Telegraph Company, 'A' sent a telegram to 'B' for the shipment of certain goods. The
telegraph company mistaking the registered address of 'C' for that of 'B', delivered the telegram to 'C'. 'C',
acting on the telegram sent the goods to 'A' who refused to accept the goods stating that he had ordered the
goods not from 'C' but from 'B'. ‘C’ sued the Telegraph Company for damages for the loss suffered by him.
Held, that ‘C' had no cause of action against the company for the company did not owe any duty of care to
'C' and no legal rights to 'C' could, therefore, be said to have been infringed.
Rogers v. Rajendra Dutt, the plaintiff owned a tug which was employed for towing the ships in charge of
Government Pilots in Hoogly. The plaintiff demanded exorbitant price for towing the ship. Consequently, the
Superintendent of Marine issued an order prohibiting the use of that tug in future whereby the owner was
deprived of the profits. Held, they had no legal right to have their tug employed by the Government.
Town Area Committee v. Prabhu Dayal, A legal act, though motivated by malice, will not make the
defendant liable. The plaintiff can get compensation only if he proves to have suffered injury because of an
illegal act of the defendant. The plaintiff constructed 16 shops on the old foundations of a building, without
giving a notice of intention to erect a building under section 178 of the Uttar. Pradesh Municipalities Act and
without obtaining necessary sanction required under section 108 of that Act. The defendants (Town Area
Committee) demolished this construction. In an action against the defendant to claim compensation for the
demolition the plaintiff alleged that the action of the defendants was illegal as it was malifide, the municipal
commissioner being an enemy of his. It was held that the defendants were not liable as no "injuria”
(violation of a legal right) could be proved because if a person constructs a building illegally, the demolition
of such building by the municipal authorities would not amount to causing "injuria" to the owner of the
property.

Q) 5 What are the given defences against tortious liability? Explain with the help of decided cases.
ANS- Under certain conditions an act ceases to be wrongful, although in absence of those conditions the
same act would amount to be a wrong. Under such conditions the act is said to be justified or excused. These
conditions which excuse or justify an act which would, otherwise, have been a tort may be divided into two
categories.
These general exceptions, or conditions, or justification of torts are,
1) Consent or Leave and Licence. (Volenti nonfit injuria),
2) Act of God,
3) Inevitable accident,
4) Necessity,
5) Private Defence,
6) Acts causing slight harm,
7) Statutory Authority,

1.) Volenti Non fit Injuria(Consent or Leave and Licence)

The maxim is based on the principle of common sense. If I invite you to my house, can I sue you for
trespass? Answer is no, because I have consented to your entry upon my land. But if a guest who is to be
entertained in the drawing room enters into my bedroom without my permission, he can be sued for trespass,
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because his entry into the bedroom is unauthorized. A postman entering into the house for delivering a letter
cannot be sued if he remains within a permissible limit, because in such a case the consent is inferred but if
the postman crosses that permissible limit he can be sued.
The consent may be either - (1) express, or (2) implied.
In Dr. Laxman Balkrishan v Trimbak Bapu, the Supreme Court held that if a doctor does not apply due
care during the operation, he will be liable even after the patients' consent for suffering loss during
operation. In the case the patient died because proper primary care was not taken while giving anesthesia.
In White v Blackmore, the plaintiffs’ husband paid for admission of his family for witnessing a car race.
During the race a car got entangled in the safety rope and the plaintiff was catapulated some twenty feet and
died consequently. It was held that since the deceased did not have full knowledge of the risk he was running
from the faulty lay out of the ropes, he did not willingly accept the risk.
2) Act of God
Act of God may be defined as “circumstances which no human foresight can provide against any of which
human prudence is not bound to recognize 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”.
Ex:- The falling of a tree, a flash of lightening, a tornado, storms, tempests, tides, volcanic eruptions, or a
flood.
Essential conditions for the availability of this defence are:
• Externality: There must be working of natural forces without any intervention from human agency, and
• Unpredictability: The occurrence must be extraordinary and not one which could be anticipated and
reasonably guarded against.
• Irresistibility: The occurrence must be such that it could not have been avoided by any amount of
precaution.
Whether a particular event amounts to an Act of God is question of fact. Today the scope of this defence is
very limited because with the increase in knowledge the foresight also increases and it is expected that the
possibility of the event could have been visualized.
In Ramalinga Nadar v. Narayana Reddiar, the Kerala High Court held that the criminal activities of the
unruly mob cannot be considered to be an Act of God.
In Saraswati Parabhai v. Grid Corporation of Orissa and Others, where an electric pole was uprooted
and fell down with live wire which caused death of a person. Orissa High Court rejecting the defence of Act
of God held that it was the responsibility of the Grid Corporation authorities to provide protection in such
situation of storm and rain.

3) Inevitable accident,
All recent authorities support the view that 'inevitable accident' negatives liability. An 'inevitable accident' is
that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It means an
accident physically unavoidable. It does not apply to anything which either party might have avoided. It is
an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to
the exigency, and the circumstances, in which he was placed. If in the performance of a lawful act, done with
all due care, damage ensues through some unavoidable reason, such damage affords no cause of action.
"People must guard against reasonable probabilities, but they are not bound to guard against fantastic
possibilities.
In A. Krishna Patra v. Orissa State Electricity Board, the Court explained inevitable act and held that an
inevitable accident is an event which happens not only without the concurrence of the will of the man, but in
spite of all effects on his part to prevent it. Limitations of this defence, In trespass as well as in negligence,

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inevitable accident has no place. Similarly, under the rule in Ryland v. Fletcher, the defendant is liable even
if he has taken reasonable care. In the same way the defence has no role in cases of absolute liability.
Nitroglycerin case, the defendants who were a firm of carriers were carrying a wooden box sent by one of
the customers, the contents of which were not reported. When the servants of the defendants found that the
box was leaking, they took it their office to inspect. Though they tried to open it with normal care, the
nitroglycerin which was highly inflammable substance exploded. All those who were present there were
killed and the building in which the office was situated got severely damaged and the office itself was
completely destroyed. It was held that the defendants were not liable for the loss to the building.
4. Necessity-
Necessitas inducit privilegium quod jura privata (Necessity induces a privilege because of a private right).
The act may be necessary
1. to exercise authority given by law
2. to avoid a greater harm
3. in the larger interest of public.
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 est suprema lex” (The welfare of the people is the Supreme
Law). E.g. 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 a dangerous thing.
Cope v. Sharpe, A fire broke out on A’s land. A’s servants were busy in extinguishing the fire, the
gamekeeper of C (who had shooting rights over A’s land) set fire to some strips of heather extinguished
between the fire and some nesting peasants of C, in a shot, while the fire was by A’s servants. A sued the
gamekeeper for trespass. 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.

5. Private Defence
Private defence is another ground of immunity well known to the law. 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. And what may be lawfully done for oneself
in this regard may likewise be done for a wife or husband, a parent or child, a master or servant. But the
force employed must not be out of proportion to the apparent urgency of the occasion. Thus, it is not
justifiable to use a deadly weapon to repel a push or blow with the hand. "Honest and reasonable belief of
immediate danger" is the test. Indian Penal Code extends the benefit of this defence even in case of causing
death in certain circumstances.
In India the right of private defence has been given a statutory recognition in Sections 96 to 106 of the
Indian Penal Code. Though provisions of these sections are applicable to the criminal law, the principles
contained therein may profitably be imported into the Law of Torts. Self defence as a permissible defence
against an action in torts has recently been discussed by Orissa High Court in Devendra Bhai v. Megha
Bhai, the principle extends not only to the right of person to protect himself but also to protect others' life,
his wife, his parents and his child. He is to use only necessary force or not to use force in excess of what is
necessary.
6. Acts causing slight harm- De minimis non curat lex (Law does not cure minor loss): Courts generally
do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the
trial of a right, or where personal character is involved.

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Acts which separately would not be wrongs may amount to a wrong by a repetition or combination.
Holford v. Bailey, A casts and draws a net in water where B has the exclusive right of fishing. Whether any
fish are caught or not, A has wronged B, because the act, if repeated, would tend to establish or claim a right
to fish in that water. Similarly, an act, which a small incidence, may be a part of a larger transaction. In such
a case also, the law will take cognizance of the act.

7. Statutory Authority-
Statutory Authority A person cannot complain of a wrong which is authorized by the legislature. When a
statute specially authorizes a certain act to be done by a certain person which would otherwise be unlawful
and actionable, no action will lie at the suit of any person for the doing of that act. "For such a statutory
authority is also statutory indemnity taking away all the legal remedies provided by the law of torts for
persons injuriously affected." (Salmond) If I construct a bridge under the authority of a statute and if
anybody is denied his right of way and traffic through that way for a specific period, no suit can be brought
against me for what I have done is in pursuance of statutory authority.
Therefore, if a railway line is constructed, there may be interference with private land when the trains are
run, there may also be some incidental harm due to noise, vibration, smoke, emission of spark etc. No action
can lie either for interference with the land or for incidental harm, except for payment of such compensation
which the Act itself may provide.

Q 6. Explain the doctrine of vicarious liability with the help of decided cases.
ANS- As a general rule, a man is liable only for his own act but there are certain circumstances in which a
person is liable for the wrong committed by others. This is called "vicarious liability", that is, liability
incurred for another. The most common instance is the liability of the master for the wrong committed by his
servants. In these cases liability is joint as well as several. The plaintiff can sue the actual wrongdoer
himself, be he a servant or agent, as well as his principal. In the words of Salmond, "In general a person is
responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious
responsibility for the acts of another, however, blameless himself."
The doctrine of vicarious liability is based on principles which can be summed up in the following two
maxims-
a) Qui facit per alium facit per se, the maxim means, 'he who acts through another is deemed in law as
doing it himself. The master's responsibility for the servant's act had also its origin in this principle. The
reasoning is that a person who puts another in his place to do a class of acts in his absence, necessarily
leaves to determine, according to the circumstances that arise, when an act of that class is to be done and
trust him for the manner in which it is done, consequently he is answerable for the wrong of the person so
entrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it
ought not to have been done, provided what is done is not done from any caprice of the servant but in the
course of the employment.
b) Respondent superior, this maxim means that, the superior must be responsible or let the principal be
liable. In such cases not only he who obeys but also he who command becomes equally liable This rule has
its origin in the legal presumption that all acts done by the servant in and about his master's business are
done by his master's express or implied authority and are, in truth, the act of the master. It puts the master in
the same position as if he had done the act himself. The master is answerable for every such wrong of the
servant as is committed in the course of his service, though no express command or privity is proved.
Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorized by
the former and committed by the latter.

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Modes of vicarious liability-
The liability for others wrongful acts or omissions may arise in one of the following three ways,
a) Liability by ratification, where the defendant has authorized or ratified the particular wrongful act or
omission.
b) Liability arising out of special relationship, where the defendant stands to the wrong- doer in a relation
which makes the former answerable for wrongs committed by the other, though not specifically authorized.
This is the most important form of liability. In order that the master may be held liable for the tort of his
servant following conditions should be fulfilled-
1. Tort is committed by the 'servant', and
2. The servant committed the tort while acting in the course of employment of his master

An employee in case of necessity is also considered as acting in the course of employment, if he is

performing his employer's business. For instance, a government employee was travelling in a jeep to deliver
medicines in the course of his duties. He had licence to drive and had also been authorized to drive the
Government's vehicle in the case of necessity. The driver of the jeep suddenly took ill and, therefore, he had
to drive, in order to ensure the medicines reaching their destination, while driving the jeep he negligently run
over the deceased, It was held that he was acting in the course of employment and thus the Government was
liable. The trend of the recent decisions of various High Courts is to allow compensation to the accident
victim against the owner of the vehicle and through him, the insurance company. The aspect of the
relationship of the independent contractor and employer between the mechanic or the workshop and the
owner of the vehicle has been generally ignored, such liability has been recognized on the basis of the law of
agency by considering the owners of the workshop or the mechanic as an agent of the owner of vehicle.
The recent trend in law to make the master liable for acts which do not strictly fall within the term 'in course
of employment' as ordinarily understood. The owner is not only liable for the negligence of the driver if that
driver is his servant acting in the course of the employment but also when the driver is with the owner's
consent, driving, the car on the owner's business or for the owner's purposes.
Main incidents of Master's Liability, There are six principal ways in which a master becomes liable for the
wrong done by servants in the course of their employment.
1. The wrong committed by the servant may be the natural consequence of something done by him with
ordinary care in execution of his master’s specific orders.
In Indian Insurance Corporation, Association Pool, Bombay v. Radhabai, the driver of a motor vehicle
belonging to the Primary Health Centre of the State was required to bring the ailing children by bus to the
Primary Health Centre. The driver in the course of driving gave the control of the steering wheel to an
unauthorised person. 'this was an unauthorised mode of doing the act authorised by the master. It was held
that in such circumstances, the Government, viz., the owner of the vehicle is vicariously liable for the
negligence of the driver in permitting unauthorised person to drive the vehicle.

2. Master will be liable for the negligence of his servant.

In Baldeo Raj v. Deowati, the driver of a Truck sat by the side of the conductor and allowed the conductor to
drive. The conductor caused an accident with a rickshaw as a result of which a rikshaw passenger died. It
was held that the act of the driver in permitting the conductor to drive the vehicle at the relevant time was a
breach of duty by the driver, and that was the direct cause of the accident. For such negligence of the driver
his master was held vicariously liable.
3. Servant's wrong may consist in excess of mistaken execution of lawful authority. Here two things have to
be established. In the first place, it must be shown that the servant intended to do on behalf of his master

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something which he was, in fact, authorised to do. Secondly, it has to be proved that the act if done in a
proper manner, would have been lawful.
4. Wrong' may be a wilful wrong but doing on the master's behalf and with the intention of serving his
purpose. If a servant performs some act which indicates recklessness in his conduct but which is within the
course of his employment and calculated to serve the interest of the master, then the latter will be saddled
with the responsibility for it.
5. Wrong may be due to the servant's fraudulent act. A master is liable also for the wrongful acts of his
servants done fraudulently. It is immaterial that the servant's fraud was for his own benefit. The master is
liable if the servant was having the authority to do the act, that is, the act must be comprehended within his
ostensible authority. The underlying principle is that on account of the fraudulent act of the servant, the
master is deemed to extend a tacit invitation to others to enter into dealings or transactions with him.
6. Wrong may be due to the Servant's Criminal Act. Though there is no such thing as vicarious liability in
criminal proceedings, yet in a civil action, a master is liable in respect of the criminal acts of a servant,
provided they are committed in the course of his employment.

Q 7). Explain in detail the doctrine of Strict liability and Absolute liability?
ANS- Law of torts seeks to achieve what is called distributive justice, where the person responsible for the
injury caused to the plaintiff has to bear the burden.
# If the defendant is responsible, i.e., is at fault, he has to compensate the plaintiff, and thus bear the burden.
# If the plaintiff is responsible, he should bear the burden.
# If both are at fault, they should share the burden.
# If neither of them is at fault, the plaintiff has to bear the loss.

ORIGIN
Justice Blackburn’s judgement in Rylands v. Fletcher is acknowledged to be the first case in which strict
liability was applied. Rylands v. Fletcher: In 1860, John Rylands contemplated a new reservoir to be
constructed for supplying water to the Ainsworth mill. He appointed a competent contractor to execute the
plan. Thomas Fletcher had a mine in the neighbourhood. There were some old disused shafts which lead from
defendant’s land to the plaintiff’s mines. Though the contractor was aware of this, he did not take care in filling
them. As a result, when the reservoir was filled, these shafts succumbed to the pressure and water entered the
plaintiff’s mines and damaged them It was accepted that the defendant was not negligent, though the contractor
was. But still the defendant was held liable.
Principle: The person who brings on to his land and collects and keeps there something likely to do mischief
if it escapes must keep it in at his peril and if he does not do so, he is liable for all the damage which is the
natural consequence of its escape. But the use of land must be non-natural.

Essentials of strict liability-

We may observe that the following are the three requirements for application of rule in Rylands v. Fletcher,
1. Something dangerous must be brought, collected and kept on the land.
2. It must be non-natural use of land.
3. The thing must escape.

1. DANGEROUS THING
A thing which is of such nature that it has the tendency to escape and when escapes to cause considerable
damage. e.g., gases, liquids, animals.

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2. NON-NATURAL USE OF LAND
Use of the land must be other than its ordinary use, i.e., the purpose for which it is meant or the purpose for
which it is suitable.
Illustrations of natural use of land can be: storage of water in reservoir for mill or use, storage of one or two
gas cylinder for domestic use, electricity connection to light the house, lighting an oil lamp in house etc. In
Sochacki v. Sas, B, who was a lodger in A’s house, lit a fire in his room and went out. While he was out, his
room caught fire may be due to jumping of a spark. It spread and damaged A’s property in the rest of the
house. There was no evidence of negligence on the part of B. It was held that B was not liable under Rylands
v. Fletcher since his use of the fire in his grate was an ordinary, natural, proper, everyday use of a fire place
in a room.
3. ESCAPE
Defendant would be liable only when there is escape of the object from land of which he is in occupation or
control. Read v. J. Lyons & Co. Ltd., Appellant was employed as an Inspector of Ammunition. He was
injured by the explosion of a shell while she was on respondent's premises in the performance of her duties.
Further there was no proof of negligence on the part of the defendant. The Court held that the injury was
caused on the premises of the defendants i.e. not outside, thus no escape thereby, the respondents were not
liable.

EXCEPTIONS TO THE RULE OF STRICT LIABILITY

In the following circumstances, the rule of strict liability is not applicable.
1. Act of God (Vis Majeur)
2. Act of third party
3. Plaintiff's consent
4. Common benefit of plaintiff and defendant
5. Plaintiff's own default
6. Statutory Authority

ABSOLUTE LIABILITY (Innovation of the Supreme Court of India)

Decision of the Supreme Court of India in M. C. Mehta v. Union of India (Oleum Gas Leakage Case) is
innovative in the sense that it gave rise to a new kind of liability called ‘absolute liability’. Absolute liability
is strict liability without exceptions. SC held that the rule in Ryland’s case decided in the nineteenth century
is inadequate to meet the needs of the modern scientific world with hazardous and dangerous activities being
common.
In Charan Lal Sahu v. UOI, It was held that this duty was ‘absolute non-delegable’ and the defendant
cannot escape liability by showing that he had taken reasonable care and that there was no negligence on his
part.
Distinction between strict and absolute liabilities-
Apart from the difference that in case of strict liability certain defences are admitted whereas in case of
absolute liability no defence is admitted, the following are the other differences:
a. In case of strict liability, what is brought on land is dangerous, but not inherently dangerous. In case of
absolute liability, it is inherently dangerous, and hence no exceptions admitted.
b. Strict liability is based on non-natural use of land; absolute liability does not envisage such a user.
c. In case of strict liability, the thing must escape. Hence, there is no liability in respect of persons on the
premises. Absolute liability is available also to the persons on the premises.

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d. In case of strict liability ordinary damages is awarded. In M. C. Mehta case it was observed that in such
cases exemplary damages may be awarded and that the more prosperous or affluent the enterprise, the more
damages should be awarded.

Q) 8 What is defamation under law of torts? And defences available for defamation?
ANS- Introduction:
Man’s reputation is considered to be his property, more precious than any other property. Defamation is an
injury to reputation of a person.
Defamation is customarily classified into, (a) libel and (b) slander.
Broad distinction between the two is that libel is addressed to the eye while as slander to the ear. Slander is
the publication of defamatory statement in a transient form.
An example of it is spoken words. Libel is a representation made in some permanent form e.g. writing,
printing, picture, effigy or statute. In a cinema film not only the photographic part of it is considered to be
libel but also the speech which synchronizes with it is also a libel.
In Youssoupoff v. M.G.M. Pictures Ltd., a film produced by an English Company, a lady, Princess
Natasha, was shown as having relations of seduction or rape with the man Rasputin, a man of worst possible
character. It was observed that so far as photographic part of the exhibition is concerned, that is the
permanent matter has to be seen by the eye, and it is proper subject of an action for libel, if defamatory.
Requisites of Defamation
The constituent elements of defamation are;
a. the words must be defamatory
b. the defamatory words, should directly or indirectly refer to the person defamed, and
c. publication of the words by any medium should take place

Defences to Defamation
1. Justification or truth
2. Fair comment
3. Privilege

1. Justification or truth, In defamation there cannot be better defence than that of truth, as the law will not
permit a man to recover damages in respect of any injury and character which he either does not or ought not
to possess. The deference is still available even though the statement is made maliciously. Defence is
available if the statement is substantially correct though incorrect in respect of certain minor details.
In Alexender v. North Eastern Rly., a news was published in the newspaper that X has been sentenced to a
fine of pond of 1 or three weeks imprisonment. In the alternative, while in fact X was sentenced to a fine of
pound 1 or 14 days imprisonment. It was held that the statement in the press was substantially correct and no
action lied. Obviously, if defamer fails to prove the truth of statement, he is liable.

2. Fair Comment, The second defence to an action for defamation is that the statement was a fair comment
in public interest. Comment means expression of an opinion. The essentials of this defence are; a. It must be
a comment, i.e. expression of opinion b. Comment must be fair c. Comment must be in public interest
Comment and statement of facts are different. Comment is an expression of opinion on certain facts and
circumstances, and not statement of fact.
For instance, after reading A’s book, B says ‘it is a foolish book.’ ‘It is an indecent book.’ ‘’A’ must be a man
of impure mind.’ These are comments. But if he says, ‘I am not surprised that A’s book is foolish and
indecent and he is weak and of impure mind.’ In former case, it is a comment and in the latter case, it is a

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statement of fact. Since comments are always made on facts, it is necessary that facts commented upon
should be generally known or the commentator should make them known before comments upon them. A
says ‘B is guilty of breach of trust.’ This is a statement of fact and must be true. A then adds, ‘B is, therefore,
a dishonest man.’ This is a comment. But if audience or public do not know the fact that B has been
convicted for breach of trust, the latter statement will be statement of fact. Comment should be fair. No
comment can be fair which is based on untrue facts. Thus, when commenting on play, it was stated that,
‘play potrays vulgarity as it contents a scene of rape’, while in fact there is no such scene, the comment is
not fair.
3. Privilege This is also one of the fundamental principles that there are circumstances when freedom of
speech has privilege and even if it is defamatory it is protected. The individual’s right to reputation is
subordinate to the privilege of freedom of speech. This privilege may be absolute or qualified.

Q) 9 What is trespass to the person under law of tort?

ANS- There are three main wrongs which fall under the umbrella of trespass to the person: assault, battery
and false imprisonment. They are intentional torts, meaning they cannot be committed by accident. Although
these descriptions sound like they are crimes, and indeed do share their names with some crimes, it is
important to remember that these are civil wrongs and not criminal wrongs. A person liable in tort for
assault, battery or false imprisonment will not face a sentence. Instead, they will be ordered to pay damages
to their victim.
Assault
Assault means physical contact. But in tort, an assault occurs when a person apprehends immediate and
unlawful physical contact. In other words, fearing that you are about to be physically attacked makes you the
victim of an assault. It is also necessary that an attack can actually take place. If an attack is impossible, then
despite a person’s apprehension of physical contact there can be no assault. So a person waving a stick and
chasing after another person who is driving away in a car would not be an assault. It is also generally
thought that words alone cannot constitute an assault, but if accompanied by threatening behavior the tort
may have been committed.
Battery
If the physical contact that is apprehended in an assault actually takes place, then the tort of battery has been
committed. It is not necessary for the physical contact to cause any injury or permanent damage to the
victim, or even be intended to do so. The only intention required is that of making physical [Link] is also
not necessary for the tortfeasor, that is, the wrongdoer, to actually touch the victim, so battery may be
committed by throwing stones at someone or spitting on them.
False Imprisonment
False imprisonment is the unlawful restraint of a person which restricts that person’s freedom of movement.
The victim need not be physically restrained from moving. It is sufficient if they are prevented from
choosing to go where they please, even if only for a short time. This includes being intimidated or ordered to
stay somewhere. A person can also be restrained even if they have a means of escape but it is unreasonable
for them to take it, for example, if they have no clothes or they are in a first floor room with only a window
as a way out. False imprisonment can also be committed if the victim is unaware that they are being
restrained, but it must be a fact that they are being restrained.

Defences to Trespass to the Person

1. Consent
If a person consents to being physically contacted, then no tort of battery exists. Consent may be given
expressly by words or implied from conduct. A patient can give express medical consent to their doctor

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before undergoing an operation which in other circumstances might amount to a battery. Similarly, certain
sports, such as rugby, on the face of it comprise a continuous series of assaults and batteries. Clearly it would
be absurd if the law allowed a rugby player to sue the opposing team for trespass to the person. So a person
who consents to being physically contacted within the rules of a particular game is not a victim of a tort.
Deliberate acts of violence on the playing field, though, do not fall within this defence.
2. Necessity
A wrongdoer may have a successful defence if they can show that it was necessary to act in the way they
did. In other words, there must be a sound justification for breaking the law. A person who grabs another and
drags them by force from the path of an oncoming vehicle, and who by doing so prevents them from serious
injury or death, is not liable in tort. Similarly, a doctor who performs emergency surgery on an unconscious
patient, who naturally cannot consent, in order to save their life, may successfully argue that the battery was
necessary if the surgery performed was limited to that which was required to save the patient’s life.

3. Self-Defence
The defence of self-defence will only succeed if the force used was not excessive and was reasonable and
necessary in the circumstances to prevent personal injury. Each case must be considered on its own facts.
For example, if a person is attacked with a knife it may be reasonable for them to defend themselves also
with a knife, but not necessarily with an automatic pistol. It will be for the courts to decide what is
reasonable.
4. In Defence of Others
Similarly to self-defence, a wrongdoer may successfully argue that their actions were justified in order to
assist a third party who they reasonably believe is in immediate danger of being attacked. Most commonly
this occurs when a parent is protecting a child or one spouse is protecting another.
5. Defence for False Imprisonment
If the victim was restrained under legal authority or justification, or if the perpetrator was exercising their
legal rights or duties, then there is a complete defence to false imprisonment.

Q) 10. Write an essay on Consumer Protection Act, 2019.

ANS- The new Consumer Protection Act was passed by Parliament in 2019. It came into force in July 2020
and replaced the Consumer Protection Act, 1986.
Need for the new act:

• The Digital Age has ushered in a new era of commerce and digital branding, as well as a new set of
customer expectations. Digitisation has provided easy access, a large variety of choices, convenient
payment mechanisms, improved services and shopping as per convenience. However, there are also
associated challenges related to consumer protection.
• To help address the new set of challenges faced by consumers in the digital age, the Indian
Parliament passed the landmark Consumer Protection Bill, 2019 which aims to provide timely and
effective administration and settlement of consumer disputes.
Details:

• Consumer Protection Act, 2019 is a law to protect the interests of the consumers. This Act provides
safety to consumers regarding defective products, dissatisfactory services, and unfair trade practices.
• The basic aim of the Consumer Protection Act, 2019 is to save the rights of the consumers by
establishing authorities for timely and effective administration and settlement of consumers’
disputes.

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Rights of the consumers:

• Consumers have the right to information on various aspects of goods and services. This could be
information about the quantity, quality, purity, potency, price, and standard of goods or services.
• To be protected from hazardous goods and services. Right to protection against goods and services
that can be dangerous to life and property.
• To be protected from unfair or restrictive trade practices.
• Consumers have the right to access a variety of goods and services at competitive prices.
• Consumers should have the right to redressal.

Salient Provisions of the Consumer Protection Act

New definition of consumer:

• The new Act has widened the definition of ‘consumer’.

Definition of consumer:

• As per the Act, a person is called a consumer who avails the services and buys any good for self-use.
Worth to mention that if a person buys any good or avails any service for resale or commercial
purposes, he/she is not considered a consumer. This definition covers all types of transactions i.e.
offline and online through teleshopping, direct selling or multi-level marketing.
Central Consumer Protection Authority:

• The Act proposes the establishment of the Central Consumer Protection Authority (CCPA) as a
regulatory authority.
• The CCPA will protect, promote and enforce the rights of consumers and regulate cases related to
unfair trade practices, misleading advertisements, and violation of consumer rights.
• CCPA would be given wide-ranging powers.
• The CCPA will have the right to take suo-moto actions, recall products, order reimbursement
of the price of goods/services, cancel licenses, impose penalties and file class-action suits.
• The CCPA will have an investigation wing to conduct independent inquiry or investigation
into consumer law violations.
Consumer Disputes Redressal Commission:

• The Act has the provision of the establishment of Consumer Disputes Redressal Commissions
(CDRCs) at the national, state and district levels to entertain consumer complaints.
• As per the notified rules, the State Commissions will furnish information to the Central Government
on a quarterly basis on vacancies, disposal, the pendency of cases and other matters.
• The CDRCs will entertain complaints related to:
• Overcharging or deceptive charging
• Unfair or restrictive trade practices
• Sale of hazardous goods and services which may be hazardous to life.
• Sale of defective goods or services
• As per the Consumer Disputes Redressal Commission Rules, there will be no fee for filing cases up
to Rs. 5 lakh.

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E-Filing of Complaints:

• The new Act provides flexibility to the consumer to file complaints with the jurisdictional consumer
forum located at the place of residence or work of the consumer. This is unlike the earlier condition
where the consumer had to file a complaint at the place of purchase or where the seller has its
registered office address.
• The new Act also contains enabling provisions for consumers to file complaints electronically and
for hearing and/or examining parties through video-conferencing.
• Consumers will also not need to hire a lawyer to represent their cases.
Product Liability & Penal Consequences:

• The Act has introduced the concept of product liability.

• A manufacturer or product service provider or product seller will now be responsible to
compensate for injury or damage caused by defective products or deficiency in services.
• This provision brings within its scope, the product manufacturer, product service provider and
product seller, for any claim for compensation. The term ‘product seller’ would also include e-
commerce platforms.
Penalties for Misleading Advertisement:

• The CCPA may impose a penalty on a manufacturer or an endorser, for a false or misleading
advertisement. The CCPA may also sentence them to imprisonment.
Provision for Alternate Dispute Resolution:

• The new Act provides for mediation as an Alternate Dispute Resolution mechanism. For mediation,
there will be a strict timeline fixed in the rules.
• As per the recently notified rules, a complaint will be referred by a Consumer Commission for
mediation, wherever scope for early settlement exists and parties agree for it. The mediation will be
held in the Mediation Cells to be established under the aegis of the Consumer Commissions. There
will be no appeal against settlement through mediation.
The Central Consumer Protection Council:

• The Consumer Protection Act empowers the Central Government to establish a Central Consumer
Protection Council. It will act as an advisory body on consumer issues.
• As per the notified Central Consumer Protection Council Rules, the Central Consumer
Protection Council would be headed by the Union Minister of Consumer Affairs, Food and
Public Distribution with the Minister of State as Vice Chairperson and 34 other members
from different fields.
• The Council, which has a three-year tenure, will have a Minister-in-charge of consumer
affairs from two States from each region – North, South, East, West, and NER. There is also
a provision for having working groups from amongst the members for specific tasks.
Alternate dispute redressal mechanism:

• The provision of Mediation will make the process of dispute adjudication simpler and quicker.
• This will provide a better mechanism to dispose of consumer complaints in a speedy manner and will
help in the disposal of a large number of pending cases in consumer courts across the nation.
Simplified process for grievance redressal:

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 • The new Act would ease the overall process of consumer grievance redressal and dispute resolution
process. This will help reduce inconvenience and harassment for the consumers.
• The enhanced pecuniary jurisdiction and provisions providing statutory recognition to mediation
processes, enabling filing of complaints from any jurisdiction and for hearing parties through video-
conferencing will increase accessibility to judicial forums and afford crucial protection in times when
international e-commerce giants are expanding their base.

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