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.
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
Duty of Care to the Plaintiff
- That the defendant owed duty of care to the plaintiff.
- The defendant made breach of that duty.
- The plaintiff suffered damage as a consequence thereof.
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
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
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:
- 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.
- 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.
- 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.
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 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
Kinds of Nuisance
Essentials of Nuisance
To constitute the tort of nuisance, the following essentials are required to be
- 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.
- 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.
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.
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
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
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.
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
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
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 is a direct physical interference, with the plaintiff's possession of
land, through some materials or tangible objects.
It includes following torts:
The wrong of battery consists an intentional application of force to another
person without any lawful justification.
It's essential requirements are as follows:
Use of Force
- There should be use of force.
- The same should be without any lawful justification.
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 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
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:
- There should be total restraint on the liberty of a person.
- It should be without any lawful justification.
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.
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
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:
- Slander is the publication of a defamatory statement in a transient
- Libel is a representation made in some permanent form, e.g. writing or
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
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
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
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
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.
Making fair comment on matters of public interest is a defence to an action for
For this defence to be available, the following essentials are
- It must be a comment, i.e. an expression of option rather than assertion
- The comment must be fair.
- The matter commented upon must be of public interest.
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
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:
- Parliamentary proceedings [U/A 105(2)]
- Judicial proceedings
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:
- 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.
- 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
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
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
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
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.