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Specific Torts (Negligence, Nuisance, Trespass, Defamation and Remoteness of Damage). An overview

Tort is when one person or entity inflicts an injury upon another, in which the injured party can sue for damages. There are numerous specific torts including negligence, nuisance, trespass, defamation, etc.

Negligence
In everyday usage, the word ‘negligence' means carelessness. Secondly, in legal usage, it signifies failure to exercise the standard of care which the doer should have exercised in the circumstances. If there is no legal duty to take care, lack of care has no legal consequences. Negligence is thus a mode in which many kinds of harms may be caused, if adequate precautions are not taken. It is different from intentional or deliberate harm.

In English law, the name negligence is given to special kind of tort, the tort of failing in particular circumstances to exercise the care which should have been shown in those circumstances therefore, causing harm to another person or property. Negligence can cause big injuries, if the circumstances are not right e.g. the airline pilot, the operating surgeon, etc. Negligence can take innumerable forms, but the most common form is negligence causing personal injuries or death. The categories of negligence are not closed and new varieties such as negligence causing economic loss may be recognised.

Essentials of Negligence
In an action for negligence, the plaintiff has to prove the following essentials:
  1. That the defendant owed duty of care to the plaintiff.
  2. The defendant made breach of that duty.
  3. The plaintiff suffered damage as a consequence thereof.

Duty of Care to the Plaintiff
It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. There is no general rule of law defining such duty. It depends on each case, whether a duty exists or not.

For example, an appellant brought ginger beer from a retailer. Some of the beer was drunk by her. When she poured second glass, a decomposed body of a snail floated out. The appellant alleged, she suffered a lot due to drinking contaminated contents. One of the defences pleaded by the defendant was that he did not owe any duty of care towards plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter.

Duty Depends on Reasonable Foresee Ability of Injury
Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of the injury to the plaintiff. If at the time of the act, the defendant could foresee the injury to plaintiff, then he should try to prevent the injury. Failure of this makes him liable.

To decide culpability, we have to determine, how a reasonable man have determined the future and what action he may have taken accordingly.

In S. Dhanaveni v. State of Tamil Nadu, the deceased slipped into pit filled with rain water at night. He caught hold of nearby electric pole to avert a fall. Due to leakage of electricity in the pole, he was electrocuted. The respondent, who maintained the electric pole was considered negligent and was held liable for the death of the deceased.

No Liability When Injury is not Foreseeable
If the harm was not foreseeable, the defendant is not negligent, and then he is not responsible for the act. In Ryan v. Youngs, the defendant's servant, while driving a lorry, suddenly died, which resulted in an accident and consequent injury to the plaintiff. The driver appeared to be quite healthy and the defendant could not foresee his sudden death. It was held that the accident was due to an Act of God and the defendant was not liable for the same.

Reasonable Foreseeability does not mean Remote Possibility
To establish negligence, it is not enough to prove that the injury was foreseeable, but a reasonable likelihood of the injury has to be shown because “foreseeability does not include any idea of likelihood at all.” The duty is to guard against probabilities rather than bare possibilities.

In Fardon v. Harcourt-Rivington, the defendant left a dog inside a parked car. The dog jumped and smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. It was held that the accident was unlikely and was not negligence of defendant. Therefore, defendant was not liable.

Breach of Duty
Breach of duty means non-observance of due care which is required in a particular situation. The standard of care required is that of a reasonable man or of an ordinary prudent man. If the defendant has acted like a reasonably prudent man, there is no negligence. The law requires taking three points into consideration to determine the standard of care required. These are as follows:
  1. The Importance of the Object to be attained
    The law permits taking chances of some measure of risks so that various kinds of activities can take place in public interest. For example, a certain speed may not be negligent for a fire brigade vehicle but the same speed may be an act of negligence for another vehicle.
    In Latimer v. AEC Limited, due to heavy rainfall, the defendant's factory was filled with rainwater and some oily substance got into it. After the water drifted away, oil film remained, Defendant spread some sawdust to get rid of oil from floor, but some spaces were left out. The plaintiff who was employee sued the company for negligence. He claimed that the owner should have closed the factory as precautionary measure until the danger removed. The House of Lords held that risk was not big so as to close the factory as precautionary measure. The defendant acted like a prudent man and therefore not liable for negligence.
  2. The Magnitude of Risk
    The degree of care required varies according to each situation. What may be a careful act in one situation may be negligent act in another. The law does not demand the same amount of care under all situations. The magnitude of risk involved determines the precautions which the defendant is expected to take.
    In Kerala State Electricity Board v. Suresh Kumar, a minor boy came in contact with over head electric wire which has sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for breach of its statutory duty.
     
  3. The Amount of Consideration for which Services etc are Offered
    The degree of care also depends on the kind of services offered by the defendants and the consideration charged thereof from the plaintiff.

    In Klaus Mittelbachert v. East India Hotels Limited, the question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in swimming pool. It was observed that there is no difference between a five star hotel and normal hotel as far as the safety of guests is concerned. In this case, the plaintiff got paralyzed while he dived in the swimming pool and suffered considerable pain. A lot was spent on medicine, special diet and rehabilitation. He was awarded damages amounting to rupee 50 Lakh.
     
  4. Damage
    It is also necessary that the defendant's breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage caused is not too remote, and is a consequence of defendant's negligence.

    In Pillutla Savitri v. G. K. Kumar, the plaintiff's husband was relaxing in front of his tenanted premises on the ground floor. Suddenly, a portion under construction on the first floor of the building collapsed. The sun shade and parapet wall fell down on the plaintiff's husband resulting in his death. There was presumed to be negligence on the part of the defendant, who was getting the construction work done. The defendants were held liable to pay damages.

Nuisance
Nuisance as a tort means an unlawful interference with person's use or enjoyment of land or some right over or in connection with it. Acts interfering with comfort, health or safety are the examples of it. The interference can be noise, vibration, heat, smoke, smell, fumes, water, gas, electricity or disease producing germs.

Kinds of Nuisance
  1. Public Nuisance (Common Nuisance)
    Public nuisance is an interference with the right of public in general and is punishable as an offence. Obstructing a public way by digging a trench is an example of public nuisance. Although, such obstruction may cause inconvenience to many person, but none can be allowed to bring civil action for that, otherwise there may be hundreds of action for a single act of public nuisance.

    To avoid multiplicity of suits, the law makes public nuisance only an offence punishable under criminal law.
    In Rose v. Miles, the defendant wrongfully moored his boat across a public navigable creck. This blocked the way for plaintiff's boat and the plaintiff had to incur considerable expenditure in unloading the cargo and transporting the same by land. It was held that there was special damage caused to the plaintiff to support his claim.
     
  2. Private Nuisance (Tort of Nuisance)
    A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners or those in rightful possession of land have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.

Essentials of Nuisance
To constitute the tort of nuisance, the following essentials are required to be proved:
Unreasonable Interference
Interference may cause damage to the plaintiff's property or may cause personal discomfort to the plaintiff in the enjoyment of property. Every interference is not a nuisance, to become a nuisance, the interference should be unreasonable.

In J. Chandrasekaran v. VD Kesavan, the defendant fixed electric meters on the wall of the plaintiff, who had forcibly accepted it. Holding the fixture necessarily amounting to nuisance, the Madras High Court said any length of period of such use by the defendant, would not ensure to benefit the user concerned unless specifically law enabled him to do so.

Sensitive Plaintiff
An act which is otherwise reasonable does not become unreasonable and actionable when the damage, even though substantial, is caused solely due to sensitiveness of the plaintiff or the use to which he puts his property. If traffic is not a nuisance for a healthy man, it will not entitle a sick man to get an action, even if he suffers greatly.

In Heath v. Mayor Brighton, the court refused to grant the case in favour of the trustees of Brighton Church to restrain ‘a buzzing noise' from the defendant's power station. It was found in this case that the noise did not cause annoyance to any other person but the plaintiff.

Does Nuisance Connote State of Affairs
Nuisance is generally a continuing wrong. A constant noise, smell or vibration is a nuisance and ordinarily an isolated act cannot be considered to be nuisance.
In Dollman v. Hillman limited, the plaintiff slipped on a piece of fat lying on a pavement outside the defendant's (butcher) shop. For the injury to the plaintiff by this isolated act, the defendant was held liable for nuisance and negligence.

Malice
If act is lawful, it does not become unlawful merely because the same has been done by an evil motive. However, if the act of the defendant which is done with an evil motive becomes an unreasonable interference, it is actionable.

In Christie v. Davey, the defendant being irritated by considerable amount of music lessons by the plaintiff, a music teacher, living in the neighbour, maliciously caused discomfort to the plaintiff by hammering against the parting wall, beating of tray, whistling and shrieking. The court granted an injunction against the defendant.

Interference with the Use or Enjoyment of Land
Interference may cause either injury to the property itself or injury to comfort or health of occupant of certain property.

Injury to Property
An unauthorised interference with the use of the property of another person through some object causing damage to the property is actionable as nuisance. The object may be tangible or intangible. There may be branches of tree overhanging on the land of another person.

In St Helen's Smelting Co. v. Tipping, fumes from the defendant company's work damaged plaintiff's trees and shrubs. Such damage being an injury to property, it was held that the defendant were liable. The plea that locality was devoted to works of that kind was unsuccessful.

Injury to Comfort or Health
Substantial interference with the comfort and convenience in using the premises is actionable as a nuisance. A mere trifling or fanciful inconvenience is not enough. Disturbance to neighbour throughout the night by the noises of horses in a building which is converted into stable is a nuisance.

Damage
In the case of public nuisance, the plaintiff can bring an action in tort only when he proves a special damage to him. In private nuisance, although damage is one of the essentials the law will often presume it.

In Fay v. Prentice, a cornice of the defendant's house projected over plaintiff's garden. It was held that the mere fact cornice would cause fall of rain water into and damage the garden and the same need not be proved. It was a nuisance.

Defences to Nuisance
A number of defences have been pleaded in an action for nuisance. Some of the defences have been recognised by the courts as valid defences and some others have been rejected. Some of the valid defences are as follows:
Prescriptive Right to Commit Nuisance
A right to do an act, which would otherwise be a nuisance, may be acquired by prescription. If a person has continued with an activity on the land of another person for 20 years or more, he acquires a legal right by prescription, to continue therewith in future also. A right to commit a private nuisance may be acquired as an easement if the same has been peaceably and openly enjoyed as an easement and as of right, without interruption, for 20 years.

On the expiration of the period of 20 years, the nuisance becomes legalised ab initio, as if it has been authorized by a grant of the owner of servant land from the beginning. The period of 20 years cannot commence to run until the act complained of begins to be a nuisance. The leading case which explains the above defence is Sturges v. Bridgman.

Statutory Authority
An act done under the authority of a statute is a complete defence. If nuisance is necessarily incident to what has been authorised by a statute, there is no liability for the same under the law of torts.

For example, a railway company authorised to run railway trains on a track is not liable if, inspite of due care, the sparks from the engine set fire to the adjoining property or the value of the adjoining property is depreciated by the noise, vibrations and smoke by running of trains.

Trespass
Trespass is a direct physical interference, with the plaintiff's possession of land, through some materials or tangible objects.

It includes following torts:
Battery
The wrong of battery consists an intentional application of force to another person without any lawful justification.

It's essential requirements are as follows:
  1. There should be use of force.
  2. The same should be without any lawful justification.

Use of Force
Even though the force used is trivial and does not cause any harm, the wrong is still constituted. Physical hurt need not be there. Touching of another in anger is battery. The force may be used even without a bodily contact with the aggressor. Use of stick, bullet or any other missile or throwing of water or spitting in a man's face or making a person fall are examples of use of force.

Without Lawful Justification
It is essential that the use of force should be intentional and without any lawful justification. If two or more persons meet in a narrow passage and without any violence, one touches the other gently, it will not be battery. Use of force to oust a trespasser from certain premises is perfectly justified. However, only reasonable force can be used against a trespasser.

In Stanley v. Powell, Powell who was the member of a shooting party fired at a pheasant but the pellet from his gun glanced of a tree and accidently wounded Stanley another member of the party. It was held that Powell was not liable. If the act is wilful or negligent, the defendant would be liable.

Assault
Assault is an act of the defendant which causes the plaintiff reasonable apprehension of intended harm. When the defendant by his act creates an apprehension in the mind of the plaintiff that he is going to harm the plaintiff, an assault, is done. This is an assault to attempt to harm rather than the harm being caused. Pointing a loaded pistol at another is an assault. It is also essential that the defendant should be able to do the harm in order to be considered as an assault.

In Stephens v. Myers, the plaintiff was the chairman at a Parish Meetings, the defendant also sat on the same table. In the course of meeting, the defendant turned aggressive. He was to be expelled out of the meeting. The defendant then proceeded toward the chairman with clenched fist, but was stopped by churchwarden. He was held liable for assault.

In Innes v. Wylie, a Policeman unlawfully prevented the plaintiff from entering the club premises. It was held that “if the policeman was entirely passive like a door or a wall put to prevent the plaintiff from entering the room” there was no assault.

False Imprisonment
False imprisonment consists the imposition of total restraint for some period, however short, without sufficient lawful justification. When a person is deprived of his personal liberty, whether by being confined within four walls or by being prevented from leaving the place where he is at, it is false imprisonment. If a man is restrained, by a threat of force, from leaving his own house, there is false imprisonment.

The essentials required to constitute this wrong are:
  1. There should be total restraint on the liberty of a person.
  2. It should be without any lawful justification.

Total Restraint
Under the criminal law, whether the restraint is total or partial, it is actionable. When the restraint is total and the person is prevented from going out of certain limits, the offence is that of ‘wrongful confinement' as defined in Section 340, IPC. On the other hand, when the restraint is not total and a person is pretended merely from going to a particular direction where he has right to go, it is ‘wrongful restraint', according to Section 339, IPC.

Under civil law, the position is different. The tort of false imprisonment is constituted when there is total restraint. It is no imprisonment if a man is prevented from going to a particular direction, but he is free to go in any other direction. To constitute this wrong, a person must have been completely deprived of his liberty to move beyond certain limits.

In Mee v. Cruikshank, after his acquittal, a prisoner was taken down to the cells and detained there for few minutes while some questions were asked to him by the wardens, there was held to be false imprisonment.

Unlawful Detention
In order to constitute the false imprisonment, it is necessary that the restraint should be unlawful or without any justification. If a person is not released from jail after his acquittal, but it is continued to be detained thereafter, the detention cannot be considered to be lawful.

In Robinson v. Balmain New Ferry Co. Limited, the plaintiff entered the defendant's ferry boats. Finding that no boat was available for another 20 minutes, he wanted to go out of the wharf. The plaintiff had paid for entry. But he refused to pay for exit, as mentioned in rule board. The defendant did not allow him to leave unless he paid an extra penny. In action for false imprisonment, it was held that the defendant were not liable as the charges were reasonable.

Defamation
Defamation is injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk. As per English Law, action for defamation is divided into libel and slander, which means:
  1. Slander is the publication of a defamatory statement in a transient form.
  2. Libel is a representation made in some permanent form, e.g. writing or printing.

Under English criminal law, a distinction is made between libel and slander. There libel is a crime but slander is not, Slander is only a civil wrong in England.

Whereas criminal law in India does not make any such distinction between libel and slander. Both libel and slander are criminal offences under Section 499, IPC.

There has been a controversy whether, slander like libel, is actionable per se in India or special damage is required to be proved as in England. The weight of the authorities is for discarding between libel and slander in India and making slander and libel both actionable per se.

Essentials of Defamation
The Statement must be Defamatory
Defamatory statement is one which tends to injure the reputation of the plaintiff. Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or which tends to make them shun or avoid that person. An imputation which exposes one to disgrace and humiliation, ridicule or contempt is defamatory. The defamatory statement could be made in different ways.

For instance, it may be oral, in writing, printed or by exhibition of picture. When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation, even though the person making the statement believes it to be innocent.

In SNM Abdi v. Prafulla Kumar Mohanta, an article published in the illustrated weekly of India made certain allegations of misuse of man and muscle power by deposed Chief Minister of Assam, Prafulla Kumar Mohanta. The article was held to be defamatory in nature and the plaintiff was awarded damages amounting rupee 5,00,000.

The Statement must refer to the Plaintiff
In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to him. It is immaterial that the defendant did not intend to defame the plaintiff. If the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable.

When the words refer to a group of individuals or a class of persons, member of the group or class can sue unless he can prove that the words could reasonably be considered to be referring to him. Thus, if a man wrote that all lawyers are thieves, no particular lawyer can sue him, unless there is something to point to the particular individual.

In Newstead V. London Express Newspaper Limited, the defendant published an article stating that ‘Harold Newstead, a Caberwell man' had been convicted of bigamy. The story was true of Harold Newstead, a caberwell barman. The action for defamation was brought by another Harold Newstead, a camberwell barber. As the words were considered to be understood as referring to the plaintiff, the defendant was held liable.

The Statement must be Published
Publication means making the defamatory matter known to some person other than the person defamed and unless that is done, no civil action for defamation is taken. Communication to the plaintiff himself is not enough because defamation is injury to the reputation. Reputation consists of the estimation in which others hold him and not a man's own opinion of himself.

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

Defences for Defamation
Justification or Truth
In a civil action for defamation, truth of the defamatory matter is complete defence. However, under criminal law, merely proving that the statement was true is no defence. First exception to Section 499, IPC, requires that besides being true, the imputation must be shown to have been made for public good. But under the civil law, merely proving that the statement was true is a good defence. The reason for the defence is that, “the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought to possess.” The defence is available even though the publication is made maliciously.

If the statement is substantially true, but incorrect in respect of certain minor particulars, the defence will still be available. Leading case which explains the point is Alexander v. North Eastern Railway. If the defendant is not able to prove the truth of the facts, the defence cannot be availed.

Fair Comment
Making fair comment on matters of public interest is a defence to an action for defamation.

For this defence to be available, the following essentials are necessary:
  1. It must be a comment, i.e. an expression of option rather than assertion of fact.
  2. The comment must be fair.
  3. The matter commented upon must be of public interest.

Privilege
There are certain occasions when the law recognises that the right of free speech outweighs the plaintff's right to reputation. The law treats such occasions to be ‘privileged' and a defamatory statement made on such occasions is not actionable. Privilege is of two kinds, namely, absolute privilege and qualified privilege.

Absolute Privilege
In matters of absolute privilege, no action lies for the defamatory statement, even though the statement is false or has been made maliciously. In such cases, the public interest demands that an individual's right to reputation should give way to the freedom of speech.

Absolute privilege is recognised in the following cases:
  1. Parliamentary proceedings [U/A 105(2)]
  2. Judicial proceedings

Qualified Privilege
In certain cases, the defence of qualified privilege is also available. Unlike the defence of absolute privilege, in this case, it is necessary that the statement must have been made without malice. For such a defence to be available, it is further necessary that there must be an occasion for making the statement. Generally, such a privilege is available either when the statement is made in discharge of a duty or protection of an interest or the publication is in the form of report of parliamentary, judicial or other proceedings. Thus, to avail this defence, the defendant has to prove the following two points:
  1. The statement was made on a privileged occasion, i.e. it was in discharge of duty or protection of an interest, or it is a fair report of parliamentary, judicial or other public proceedings.
  2. The statement was made without any malice.

Remoteness of Damage

After the commission of tort, the question of defendant's liability arises. The consequence of a wrongful act may be endless or there may be consequences of consequences.
For example, a cyclist negligently hits a pedestrian who was carrying a bomb in his pocket. When the pedestrian is knocked down, the bomb explodes. The pedestrian and four other persons going on the road die and several other get injured. The explosion also causes fire in the nearly building. This leads to injury of women and children in the building. The question is, can the cyclist be liable for all these consequences? The answer is no, as he is liable only for those consequences which are not too remote from conduct.

Remote and Proximate Damage
How and where a line is to be drawn? To answer thy question, we are to see whether the damage is too remote consequence of the wrongful act or not. If that is too remote, the defendant is not liable. If on the other hand, the act and the consequences are so connected that they are not too remote but proximate, the defendant will be liable for the consequences. It is not necessary that the event which is immediately connected with the consequences is proximate and the further from it is too remote.

In Lampert V. Eastern National Omnibus Co. due to the negligence of the defendants, the plaintiff, a married woman was injured. This resulted in severe disfigurement. Sometime later, she was deserted by her husband. She wanted to claim damages for the same.

It was found that the real cause of desertion of the plaintiff was not her disfigurement but the estranged relations between plaintiff and her husband, who existed before the accident and therefore defendant were not liable.

There are two main tests to determine whether the damage is remote or not, which are as follows:
The Test of Reasonable Foresight
According to this test, if the consequence of a wrongful act could have been foreseen by a reasonable man, they are not too remote. If on the other hand, a reasonable man would not have foreseen the consequences, then they are too remote.

Wagon Mound Case
The appellant's vessel was taking fuel oil on the Sydney Harbour. Due to carelessness of one servant, the oil spilled into the harbour. 600 feet apart there was a wharf where repair of the ship including some welding work was going on.

After 60 hours, molten material from respondent's wharf fell over the floating cotton waste which ignited the fuel on the water. The wharf was severely damaged. Privy Council ruled in favour of appellant. Since, no man could have foreseen the damage caused, the appellant were not held liable.

The Test of Directness
The test of reasonable foresight was rejected and the test of directness was considered to be more appropriate. According to the test of directness, a person is liable for all the direct consequences of his wrongful act, whether, he could have foreseen them or not, because consequences which directly follow a wrongful act are not too remote.

The only question which has to be seen in such a case whether, the defendant's act is wrongful or not, i.e. could he foresee some damage? If the answer to the question is affirmative, then he is liable not merely for those consequences which he could have foreseen but for all the direct consequences of his wrongful act.

In Smith V. London and South Western Railway Company, the railway company was negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry weather. Spark from the railway engine set fire to the material. Due to high wind, the fire was carried to the plaintiff's cottage which was burnt. The defendant was held liable even though they could not have foreseen the loss to the cottage.

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