Law of Torts

Ans: Res ipsa loquitur is Latin for “the thing speaks for itself”. It is a rule of evidence in negligence cases. When an accident is of a kind that does not ordinarily happen unless someone was careless, the court may infer negligence from the accident itself, without direct proof of what went wrong.

Conditions

• The thing that caused the damage was under the control of the defendant or of persons for whom he is responsible.
• The accident is of a kind that would not ordinarily happen without negligence.
• There is no explanation of how the accident happened. The plaintiff does not know and cannot prove the exact cause.

Leading cases

• Byrne v. Boadle (1863): a barrel of flour fell from a warehouse window and hit a passer-by. The court held that barrels do not fall out of windows without negligence.
• Scott v. London and St Katherine Docks (1865): sugar bags fell from a crane and injured the plaintiff. The court held that the facts called for an explanation from the defendants.
• Municipal Corporation of Delhi v. Subhagwanti (1966): a municipal clock tower collapsed and killed people. The Supreme Court applied the maxim, since the tower was in the Corporation’s control and such towers do not fall if properly maintained.
• Shyam Sunder v. State of Rajasthan (1974): a truck belonging to the State caught fire and burnt the plaintiff’s goods. The Supreme Court applied the maxim, as the State gave no explanation.

Effect

The maxim does not reverse the burden of proof in the full sense. It lets the court infer negligence and requires the defendant to give an explanation that is consistent with due care. If he gives a reasonable explanation, the inference falls.

Ans: Motive is the reason or purpose behind an act. It is why a person does something, as distinct from intention, which is what he means to do.

General rule

In the law of torts, a lawful act does not become unlawful because it was done with a bad motive. If the act breaks no legal right, the actor is not liable, however spiteful he may be.

• Bradford Corporation v. Pickles (1895): Pickles dug on his own land and cut off the underground water that fed the Corporation’s reservoir. His purpose was to force the Corporation to buy him out. The House of Lords held that he was not liable, since the act was lawful and the bad motive did not matter.
• Allen v. Flood (1898): a motive of ill will does not make an otherwise lawful act actionable.

Where motive does matter

• Nuisance: an act done maliciously to annoy a neighbour may be a nuisance even if it would otherwise be reasonable (Christie v. Davey (1893); Hollywood Silver Fox Farm v. Emmett (1936)).
• Conspiracy: a combination whose predominant purpose is to injure the plaintiff is actionable (Quinn v. Leathem (1901)).
• Malicious prosecution and malicious falsehood: malice is an essential ingredient.
• Defamation: malice defeats the defences of fair comment and qualified privilege.
• Damages: a bad motive may increase the damages awarded.

Ans: Malice has two meanings in the law of torts.

Legal malice

It means a wrongful act done intentionally, without just cause or excuse. Bayley J described it in Bromage v. Prosser (1825) as a wrongful act done intentionally and without just cause or excuse. Ill will against the plaintiff is not needed.

Actual or express malice

It means a spiteful or improper motive, such as ill will, a desire to injure, or an intention to use a legal right for a purpose it was not meant to serve.

Where malice is relevant

• Malicious prosecution: the plaintiff must prove that the defendant acted without reasonable and probable cause and with malice.
• Defamation: proof of malice destroys the defences of qualified privilege and fair comment.
• Malicious falsehood: a false statement is actionable only if made with malice.
• Conspiracy: a combination to injure the plaintiff is a tort when injury is its predominant purpose (Quinn v. Leathem).
• Nuisance: malicious use of land can turn a reasonable use into a nuisance (Christie v. Davey).

Where malice is irrelevant

For most torts, such as negligence and trespass, the defendant’s state of mind does not matter. In Bradford Corporation v. Pickles (1895) a malicious motive did not make a lawful act wrongful.

Ans: Sovereign immunity is the rule that the State cannot be sued in tort without its consent. It comes from the English maxim “the King can do no wrong”. In England the Crown Proceedings Act, 1947 largely removed it.

Position in India

• Article 300(1) of the Constitution says the Union and the States may sue and be sued, and that their liability is the same as that of the Dominion of India and the Provinces before the Constitution, unless Parliament or the legislature provides otherwise.
• Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India (1861): the East India Company was liable for the negligence of its servants in a non-sovereign function, like a private employer. It was not liable for acts done in the exercise of sovereign power.
• State of Rajasthan v. Vidyawati (1962): the State was liable for the negligence of a driver of a government jeep who was driving to a workshop. This was not an exercise of sovereign power.
• Kasturilal Ralia Ram Jain v. State of U.P. (1965): the State was not liable for the loss of gold seized by police and misappropriated, because the police were exercising sovereign power.

Later developments

• Nilabati Behera v. State of Orissa (1993) and Rudul Sah v. State of Bihar (1983): for violation of fundamental rights, such as custodial death and illegal detention, the court can award compensation in public law. Sovereign immunity is no defence.
• Chairman, Railway Board v. Chandrima Das (2000): compensation for the rape of a foreign national by railway employees.

The immunity survives only in a narrow area of true sovereign functions, such as defence and administration of justice, and even then not for violations of fundamental rights.

Ans: Joint liability arises when two or more persons are together responsible for one wrong and for one harm. Each can be made to pay the whole damages.

Joint tortfeasors

• Persons who act in concert on a common design to commit a tort, such as co-conspirators or those who jointly assault someone.
• A principal and agent, or master and servant, where the master is vicariously liable for the servant’s wrong.
• Those who breach a joint duty, such as joint occupiers.

The Koursk (1924) distinguished joint tortfeasors from several concurrent tortfeasors. The latter are persons whose separate, unconnected wrongs combine to cause a single harm, such as two negligent drivers in one collision.

Effects

• Joint and several liability: the plaintiff may sue any one, some or all of them and recover the full amount from any one.
• Judgment: a judgment against one that is not satisfied no longer bars suing the others. Full satisfaction of the damages does.
• Contribution: under the old rule in Merryweather v. Nixon (1799), a tortfeasor who paid could not claim contribution from the others. Modern law allows contribution according to responsibility.
• Release: a true release of one joint tortfeasor discharges all. A mere covenant not to sue one does not (Duck v. Mayeu (1892)).

Ans: Acquiescence means that a person who knows of a wrong, and who stands by without objecting, loses the right to complain of it later. It rests on the principle that a person cannot, by silence, lead another to believe he does not object, and then act against him.

Conditions

• The plaintiff knew of his right and of the defendant’s act.
• The plaintiff stood by and did not object while the defendant acted, often spending money.
• The defendant was led to believe that the plaintiff had no objection.
• It would now be unfair to allow the plaintiff to complain.

Effect

• It bars an injunction. Section 41(e) of the Specific Relief Act, 1963 says an injunction cannot be granted to prevent a continuing breach in which the plaintiff has acquiesced.
• It works like estoppel (Section 115 of the Indian Evidence Act, 1872; now Section 121 of the Bharatiya Sakshya Adhiniyam, 2023).
• It can discharge a tort claim where silence amounted to consent.

Example: A builds a wall on his land that encroaches slightly on B’s land. B watches the construction for months, never objects, and sues only after the wall is complete. B may be refused the order to demolish it.

Difference from consent

Consent is given before the act and operates as volenti non fit injuria. Acquiescence is passivity during or after the act.

Ans: Waiver is the voluntary giving up of a known right. In tort the word has two uses.

Waiver of a right

• A plaintiff who knows of his right to complain and clearly gives it up cannot later sue on it.
• The waiver may be express, by words, or implied, by conduct. It needs full knowledge of the right.
• It is one of the modes of discharge of a tort claim.

Waiver of tort

• It does not mean that the wrong is forgiven. It means that the plaintiff chooses to give up the tort remedy and sue on a different footing, usually for money had and received (a quasi-contractual claim) to recover the benefit the defendant got from the wrong.
• Example: a person whose goods are wrongly sold may sue for the price received, instead of suing in conversion.
• United Australia Ltd. v. Barclays Bank Ltd. (1941): the House of Lords held that choosing the other remedy does not bar a later claim in tort until the plaintiff has actually obtained satisfaction.

Limits

Waiver needs knowledge and a clear intention. Silence alone is not waiver. Mere delay may amount to acquiescence, not waiver.

Ans: Accord and satisfaction is a way of ending a claim for a tort by agreement. The accord is an agreement under which the injured person accepts something different from, or less than, what he is entitled to, in full settlement. The satisfaction is the actual giving of that thing.

Essentials

• An agreement between the parties to settle the claim on new terms.
• Consideration, such as the defendant’s payment or promise.
• Performance of the agreed settlement.

Effect

• When both accord and satisfaction are complete, the original claim is discharged and cannot be revived.
• An accord that has not yet been carried out is not a discharge unless the parties agree that the promise itself replaces the old claim (British Russian Gazette v. Associated Newspapers (1933)).
• Section 63 of the Indian Contract Act, 1872 allows a promisee to accept any satisfaction in place of the performance promised.

Example: A injures B in a road accident. B agrees to accept Rs 50,000 in full settlement of his claim, and A pays it. B cannot afterwards sue A for more.

Ans: A release is the formal giving up of a claim by the injured person. It discharges the tortfeasor from liability for the wrong.

Requirements

• It is made by the person entitled to claim, or his lawful representative.
• It is made for consideration, unless made by deed.
• It is made freely and with knowledge of the claim.
• It is not obtained by fraud, undue influence or coercion.

Effect on joint tortfeasors

• A release of one joint tortfeasor discharges all, because there is one cause of action and it cannot survive in part once released.
• A covenant not to sue one joint tortfeasor is different. It does not release the others (Duck v. Mayeu (1892)).
• If the release of one expressly reserves the rights against the others, courts will treat it as a covenant not to sue, to give effect to the parties’ intention.

Compared with accord and satisfaction

A release is a complete and immediate discharge, usually in writing. Accord and satisfaction involves a settlement on new terms that must be carried out.

Ans: Assault is an act of the defendant that makes the plaintiff reasonably fear that force will immediately be used against him. The tort protects a person’s peace of mind and freedom from the apprehension of harm. Actual contact is not needed.

Essentials

• An act or gesture by the defendant, such as raising a fist or pointing a weapon. Words alone are generally not enough, although words may cancel a threatening act.
• Reasonable apprehension in the plaintiff’s mind that force will be used.
• Immediacy. The defendant must appear able to carry out the threat at once.
• Intention or recklessness to cause apprehension.

Cases

• Stephens v. Myers (1830): the defendant, a chairman at a meeting, advanced with a clenched fist towards the plaintiff, who was sitting near him. He was stopped by another person before he could strike. It was held to be assault.
• Tuberville v. Savage (1669): the defendant put his hand on his sword and said, “If it were not assize-time, I would not take such language from you.” It was not an assault, since his words showed he did not intend to strike then.
• Read v. Coker (1853): workmen surrounded the plaintiff, rolled up their sleeves and threatened to break his neck. It was held to be an assault.

Remedy: damages, and in some cases an injunction. The same act may also be a crime.

Ans: Battery is the intentional application of force to another person without lawful justification. It protects the right to bodily integrity. The slightest touch may be enough.

Essentials

• Application of force, however slight, to the plaintiff’s body or to something closely attached to it, such as clothing.
• Intention, or negligence, in applying the force.
• Directness. The force must follow directly from the defendant’s act.
• Lack of consent or lawful justification.

Cases

• Cole v. Turner (1704): Holt CJ said the least touching of another in anger is a battery.
• Collins v. Wilcock (1984): hostility is not necessary. Touching is a battery if it goes beyond the physical contact that is generally acceptable in ordinary life.
• Pursell v. Horn (1838): throwing water on a person was a battery.

Defences

Consent, self-defence, parental discipline, lawful arrest or authority, and necessity.

Assault and battery compared

Assault is the threat that creates fear of immediate force. Battery is the actual use of force. The two commonly occur together, but either can exist without the other.

Ans: False imprisonment is the unlawful and total restraint of a person’s freedom of movement. Imprisonment in this sense does not need a prison. A room, a street or a vehicle will do.

Essentials

• Total restraint. The plaintiff must be completely prevented from going out of a defined area. If there is a reasonable way out, the restraint is partial and is not imprisonment (Bird v. Jones (1845), where a public way was blocked on one side only).
• Absence of lawful authority. Arrest without a valid warrant or power is unlawful.
• Intention. The act must be intentional.
• Knowledge of the plaintiff is not essential. In Meering v. Grahame-White Aviation Co. (1919) the plaintiff did not know he was being detained, yet it was false imprisonment.

Cases

• Herd v. Weardale Steel, Coal and Coke Co. (1915): a miner who refused to carry out unsafe work was not allowed to leave the pit till the shift ended. The House of Lords held that there was no false imprisonment. The miner had agreed to work under the terms of his contract, and the employers were not bound to provide a means of exit on demand. He had consented to the conditions on which he went down.
• Bhim Singh v. State of J&K (1985): an MLA was illegally detained by the police to prevent him from attending the Assembly. The Supreme Court awarded him compensation of Rs 50,000.
• Rudul Sah v. State of Bihar (1983): the Court awarded compensation for detention for 14 years after acquittal.

Remedies

Damages (the plaintiff need not prove special damage), the writ of habeas corpus, and compensation under Articles 32 and 226 for State action. The tort is also a crime of wrongful confinement.

Ans: Malicious prosecution is the tort of starting criminal proceedings against a person maliciously and without reasonable and probable cause, which end in the person’s favour and cause him damage. It protects a person from the misuse of the machinery of justice.

Essentials

• Prosecution by the defendant. The defendant must have set the law in motion against the plaintiff.
• Termination in the plaintiff’s favour. The proceedings must have ended in his acquittal or discharge.
• Absence of reasonable and probable cause. The defendant had no honest belief, based on reasonable grounds, that the plaintiff was guilty (Glinski v. McIver (1962)).
• Malice. The defendant acted from an improper motive, other than to bring a guilty person to justice.
• Damage. The plaintiff suffered harm to reputation, to person or liberty, or financial loss. In Mohamed Amin v. Jogendra Kumar Bannerjee (1947) the Privy Council held that the proceedings must have reached a stage at which damage to the plaintiff results.

Differences from false imprisonment

• In false imprisonment the defendant restrains the plaintiff without legal authority. In malicious prosecution the defendant uses legal process, but dishonestly.
• Malice and want of reasonable cause are essential in malicious prosecution only.
• In malicious prosecution the plaintiff must prove damage. In false imprisonment, damage is presumed.

Remedy: damages. The limitation period is one year from the date of acquittal (Article 74 of the Limitation Act, 1963).

Ans: Nervous shock means a recognised psychiatric illness or injury caused by the sudden shock of seeing or hearing a frightening event. It is not mere grief or sorrow. The law of negligence gives damages for it in limited circumstances.

Development of the law

• Dulieu v. White (1901): a pregnant woman was frightened by a horse van that crashed into a pub. She recovered for the shock, since she feared for her own safety.
• Hambrook v. Stokes (1925): the plaintiff suffered shock from fear for the safety of her children. The claim succeeded.
• Bourhill v. Young (1943): the plaintiff heard a motorcycle accident and later saw blood on the road. The House of Lords refused her claim, since the defendant could not reasonably foresee harm to a person in her position.
• McLoughlin v. O’Brian (1983): a mother who saw her family in hospital soon after an accident could recover.
• Alcock v. Chief Constable of South Yorkshire Police (1992): the Hillsborough disaster. The House of Lords laid down limits for secondary victims.

Conditions for secondary victims (Alcock)

• A close tie of love and affection with the victim.
• Closeness in time and space to the incident or its immediate aftermath.
• Direct perception of the event with the plaintiff’s own senses, not by being told of it.
• A recognised psychiatric illness, not mere grief.

A primary victim who is in the zone of physical danger needs only to show that some physical injury was foreseeable (Page v. Smith (1996)). Indian courts follow the English cases when awarding damages for mental shock.

Ans: Trespass to land is the unjustified, direct interference with another person’s possession of land. It is actionable without proof of damage.

Essentials

• Interference with land in the plaintiff’s possession. This includes entering it, remaining after permission ends, throwing objects on it, or causing something to enter it.
• Directness. The act must be a direct, not a consequential, result of the defendant’s act.
• Intention or negligence. The defendant must have intended the act. A mistaken belief that the land is his does not excuse (Basely v. Clarkson (1681), where the defendant mowed a neighbour’s grass thinking it was his own).
• Possession. Only a person in possession can sue. The owner out of possession cannot.

The tort is actionable per se. In Entick v. Carrington (1765) the court held that every invasion of private property, however small, is a trespass.

Trespass ab initio

A person who enters lawfully under a legal authority, and then abuses the authority by a wrongful act, is treated as a trespasser from the start (The Six Carpenters’ Case (1610)).

Defences

Licence or consent, legal authority, necessity, private defence and the right to re-enter. Remedies include damages, an injunction, recovery of possession and the occupier’s right to eject the trespasser by reasonable force.

Ans: Nuisance is an unlawful interference with a person’s use or enjoyment of land, or of some right over or in connection with it. It is usually caused by smoke, smell, noise, vibrations or similar disturbances coming from a neighbour’s land.

Kinds

• Private nuisance: interference with a person’s enjoyment of his own land. The remedy is a civil action.
• Public nuisance: an act or omission that materially affects the comfort and convenience of the public or a class of people. It is a crime, and a private person can sue only if he suffers special damage beyond the general public.

Essentials of private nuisance

• An unreasonable interference, judged by the locality, the duration, the sensitivity of the plaintiff and the intention of the defendant.
• Damage to the plaintiff, either physical damage to property or substantial discomfort.

In St. Helen’s Smelting Co. v. Tipping (1865) the House of Lords distinguished damage to property from mere personal discomfort. For the second kind, the locality is relevant. See also Municipal Council, Ratlam v. Vardhichand (1980), where the Supreme Court used the criminal law of public nuisance to compel a municipality to clear open drains.

Defences

Prescription (twenty years’ use), statutory authority, consent of the plaintiff and, in public nuisance, the plaintiff’s own contribution. Coming to the nuisance is not a defence. Remedies: damages, injunction and abatement.

Ans: Defamation is the publication of a false statement about a person that tends to lower him in the estimation of right-thinking members of society, or to make them shun or avoid him. It protects a person’s reputation.

Essentials

• A defamatory statement. The test is whether it would lower the plaintiff in the eyes of ordinary reasonable people. It may carry an innuendo, a hidden meaning that is known to some readers (Cassidy v. Daily Mirror Newspapers (1929)).
• It refers to the plaintiff. It is enough that reasonable readers would understand it to be about him, even if the writer did not mean him (Hulton & Co. v. Jones (1910)).
• Publication to at least one person other than the plaintiff.

Kinds

Libel is defamation in permanent form, such as writing or printing. Slander is defamation in transient form, such as speech or gestures.

Defences

• Justification (truth).
• Fair comment on a matter of public interest.
• Privilege: absolute (for example, statements in Parliament and judicial proceedings) and qualified (statements made in good faith in the performance of a duty or interest, which fail if malice is proved).

In Subramanian Swamy v. Union of India (2016) the Supreme Court upheld the constitutionality of criminal defamation. Remedy: damages and an injunction.

Ans: Passing off is the tort of making a false representation, in the course of trade, that the defendant’s goods or services are those of the plaintiff, or are connected with him. It protects the plaintiff’s goodwill from misuse.

The classical trinity (Erven Warnink v. Townend, 1979)

• Goodwill or reputation attached to the plaintiff’s goods or services.
• Misrepresentation by the defendant, intentional or not, that is likely to lead the public to believe that his goods or services are the plaintiff’s.
• Damage, or likelihood of damage, to the plaintiff’s goodwill.

Test of deception

Courts ask whether the defendant’s get-up, name, mark or packaging is likely to confuse an average customer with imperfect recollection. Proof of actual deception is not necessary.

Indian law

• Section 27(2) of the Trade Marks Act, 1999 preserves the right of action for passing off against any person for passing off goods or services as those of another.
• Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001) laid down factors for deciding the similarity between names of drugs.
• Laxmikant V. Patel v. Chetanbhat Shah (2002): a prior user may restrain another from using a similar name, even if neither mark is registered.

Remedies: an injunction, damages or an account of profits, and delivery up of infringing material.

Ans: Civil conspiracy is an agreement between two or more persons to injure another person, which is carried out and causes him damage. It is a tort in itself.

Kinds

• Conspiracy to injure with lawful means. The agreement is actionable if the predominant purpose is to injure the plaintiff, not to advance the conspirators’ own legitimate interests (Quinn v. Leathem (1901); Crofter Hand Woven Harris Tweed Co. v. Veitch (1942)).
• Conspiracy using unlawful means. Here the agreement is actionable even if the conspirators also had their own legitimate interests, provided the plaintiff suffers damage (Lonrho plc v. Fayed (1992), where the House of Lords required an intention to injure the plaintiff).

Essentials

• An agreement or combination of two or more persons.
• An intention to injure the plaintiff (for lawful means) or use of unlawful means.
• Acts done in carrying out the agreement.
• Actual damage to the plaintiff.

An act that is lawful for one person does not become a tort because several persons do it together, unless the object is to injure. In Mogul Steamship Co. v. McGregor Gow (1892) shipowners who formed a combination to drive a competitor out of trade, for their own gain, were held not liable.

Criminal conspiracy

Criminal conspiracy under Section 120A of the Indian Penal Code (now in the Bharatiya Nyaya Sanhita, 2023) is a separate offence.

Ans: A remedy is the means by which the law redresses a wrong. In tort, remedies are of two kinds.

Judicial remedies (through a court)

• Damages: money compensation for the loss. It is the commonest remedy.
• Injunction: an order to stop or to undo a wrong. It may be temporary or perpetual.
• Specific restitution of property: an order to return the property itself, when damages would not be enough (for example, a unique object).

Extra-judicial remedies (self-help)

The law allows the injured person to act himself, without going to court, in these cases:

• Expulsion of a trespasser: using reasonable force after a request to leave.
• Re-entry on land: retaking possession peacefully and promptly.
• Re-caption of goods: retaking wrongfully taken goods, without a breach of the peace.
• Distress damage feasant: seizing trespassing animals that cause damage, and keeping them as security until compensation is paid.
• Abatement of nuisance: removing a nuisance personally, after notice (except in an emergency).

All extra-judicial remedies must be used promptly, with reasonable force only, and without breaching the peace. Excess makes the person liable in tort.

Ans: Remoteness of damage asks how far the defendant is liable for the consequences of his wrong. A defendant is not liable for every loss that follows his act. Some consequences are too remote.

Two tests

• Directness (Re Polemis, 1921). The defendant is liable for all direct consequences, whether or not he could foresee them. A plank dropped into a ship’s hold by workmen caused a spark that ignited petrol vapour, and the ship was destroyed. The defendants were held liable.
• Reasonable foresight (The Wagon Mound (No. 1), 1961). The defendant is liable only for damage of a kind that a reasonable person could foresee. Furnace oil spilled into a harbour and caught fire from molten metal. The Privy Council held that fire damage could not reasonably be foreseen, and overruled Polemis.

Qualifications

• Only the kind of harm must be foreseeable, not its exact manner or extent (Hughes v. Lord Advocate (1963)).
• The thin skull rule: a defendant must take the victim as he finds him (Smith v. Leech Brain (1962)).

The rule is the standard test in India as well. For the full treatment, see the long answers on remoteness.

Ans: An injunction is a court order directing a person to refrain from a wrongful act or, in some cases, to undo it. It is an equitable remedy, and the court grants it at its discretion. In India, Sections 36 to 42 of the Specific Relief Act, 1963 govern it.

By duration (Section 37)

• Temporary (interim) injunction: lasts until a stated time or until the further order of the court. It may be granted at any stage and is regulated by the Code of Civil Procedure, 1908 (Order 39). The court looks for a serious question to be tried (American Cyanamid Co. v. Ethicon Ltd. (1975)), a prima facie case, the balance of convenience and irreparable injury.
• Perpetual injunction: granted by a decree at the end of the suit, upon the merits.

By nature

• Prohibitory injunction: forbids an act.
• Mandatory injunction (Section 39): compels the doing of an act, usually to undo the wrong. Courts grant it carefully.
• Quia timet injunction: granted before any harm has occurred, to prevent a threatened wrong that is imminent and likely to cause serious damage.

When refused (Section 41)

Among others: to stop a judicial proceeding, to restrain the breach of a contract that cannot be specifically enforced, where the plaintiff has acquiesced, or where damages would be adequate.

Ans: Actio personalis moritur cum persona means that a personal action dies with the person. At common law, if either the wrongdoer or the injured person died, a personal claim in tort died with him.

Two aspects

• Death of the wrongdoer: the claim was extinguished and could not be made against his estate.
• Death of the victim: the victim’s own claim was extinguished and did not pass to his estate. Where the victim died because of the tort, Baker v. Bolton (1808) held that there was no civil action at all, since the death of a human being cannot be complained of as an injury.

Reform

• England: the Fatal Accidents Act, 1846 (Lord Campbell’s Act) gave dependants a statutory claim. The Law Reform (Miscellaneous Provisions) Act, 1934 let existing causes of action survive.
• India: the Fatal Accidents Act, 1855 gives the dependants a claim for wrongful death. Section 306 of the Indian Succession Act, 1925 allows most causes of action to survive for or against legal representatives.

The maxim still applies to purely personal torts, such as defamation, assault and malicious prosecution, so far as Section 306 excludes them.

Ans: Section 2(7) of the Consumer Protection Act, 2019 defines a consumer as a person who buys goods, or hires or avails of services, for a consideration that has been paid, promised, partly paid or partly promised, or paid under a system of deferred payment.

Who is included

• The buyer of goods and any user of the goods, with the buyer’s approval.
• The person who hires or avails of a service and any beneficiary of the service, when it is availed with the hirer’s approval.
• Persons who transact online, by teleshopping, by direct selling or through multi-level marketing (Explanation (b)).

Who is excluded

• A person who obtains goods for resale or for any commercial purpose.
• A person who avails of a service for any commercial purpose.
• Free services are not covered, since the definition needs consideration.

Under Explanation (a), “commercial purpose” does not include use of goods or services exclusively to earn a livelihood by self-employment.

Decided cases

• Lucknow Development Authority v. M.K. Gupta (1994): housing construction and development services are covered.
• Indian Medical Association v. V.P. Shantha (1995): medical services for payment are covered.
• Spring Meadows Hospital v. Harjot Ahluwalia (1998): a child patient and his parents are consumers.
• Laxmi Engineering Works v. P.S.G. Industrial Institute (1995): self-employment was held to fall outside the commercial purpose exclusion.

Sections: 2(7)

Ans: Section 2(9) of the Consumer Protection Act, 2019 says consumer rights include six rights:

• Right to safety: to be protected against marketing of goods, products or services that are hazardous to life and property.
• Right to be informed: about the quality, quantity, potency, purity, standard and price of goods or services, so as to be protected against unfair trade practices.
• Right to choose: to be assured, wherever possible, of access to a variety of goods, products or services at competitive prices.
• Right to be heard: to be heard, and to be assured that the consumer’s interests will receive due consideration at appropriate fora.
• Right to seek redressal: against unfair trade practices, restrictive trade practices or unscrupulous exploitation.
• Right to consumer awareness: to learn about consumer rights and remedies.

Enforcement

• The Consumer Commissions at district, State and national level decide complaints and award relief (Sections 34, 47 and 58).
• The Central Consumer Protection Authority regulates unfair trade practices and false advertising and protects the rights of consumers as a class (Sections 10 and 18).
• Consumer Protection Councils promote these rights (Sections 3 to 9).

Sections: 2(9)1018

Ans: Under the doctrine of strict liability, a person is liable for harm caused by a dangerous thing escaping from his land, even if he took all reasonable care. It comes from Rylands v. Fletcher (1868).

The rule

Blackburn J said that a person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril. If he fails, he is answerable for all the damage that is the natural consequence of its escape.

Facts of the case

The defendants built a reservoir on their land. Water escaped through old mine shafts and flooded the plaintiff’s coal mine. The House of Lords held the defendants liable.

Essentials

• A dangerous thing brought or accumulated by the defendant on his land.
• A non-natural use of the land (Lord Cairns).
• Escape of the thing from the land to a place outside his control (Read v. Lyons (1947)).
• Damage to the plaintiff, which must have been foreseeable (Cambridge Water Co. v. Eastern Counties Leather (1994)).

Defences

• Consent of the plaintiff.
• Default of the plaintiff.
• Act of God (Nichols v. Marsland (1876)).
• Act of a stranger.
• Statutory authority.

In India the rule has been replaced for hazardous industries by the wider rule of absolute liability in M.C. Mehta v. Union of India (1987).

Ans: Absolute liability is the Indian rule that an enterprise engaged in a hazardous or inherently dangerous activity is absolutely liable to compensate those harmed by an accident in the course of that activity. It is not subject to the exceptions recognised in Rylands v. Fletcher.

Source

M.C. Mehta v. Union of India (1987), the Oleum gas leak case. Oleum gas escaped from a unit of Shriram Foods and Fertilizers in Delhi, and one person died. Bhagwati CJ declined to follow the English rule, which belonged to a different stage of industrial development, and laid down a new principle for India.

The rule

• An enterprise engaged in a hazardous or inherently dangerous activity that causes harm is strictly and absolutely liable. There is no defence of act of God, act of a stranger or reasonable care.
• The duty is non-delegable. The enterprise must ensure safety through its own employees or contractors.
• The amount of compensation must be related to the magnitude and capacity of the enterprise, so that it has a deterrent effect.
• There is no need for an escape from the premises. Harm to workers and to those inside the premises is also covered.

Later developments

• Indian Council for Enviro-Legal Action v. Union of India (1996) applied the rule and the polluter pays principle.
• The Public Liability Insurance Act, 1991 and Section 17 of the National Green Tribunal Act, 2010 provide no-fault compensation for hazardous substances.

Ans: The word tort comes from the Latin tortum, meaning something twisted or wrongful. In law a tort is a civil wrong for which the remedy is a claim for unliquidated damages.

Definitions

• Salmond: 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 other merely equitable obligation.
• Winfield: tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
• Fraser: 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.

Nature

• It is a civil wrong, not a crime. The injured person sues in his own name, for compensation.
• The duty is fixed by law and is owed to people in general, not agreed between the parties as in contract.
• The remedy is damages that the court assesses (unliquidated), and sometimes an injunction.
• Liability usually depends on fault, though in some torts it is strict.

Essential elements

• A wrongful act or omission by the defendant.
• A legal duty owed to the plaintiff.
• Legal damage to the plaintiff, that is, the violation of a legal right (ubi jus ibi remedium).
• A remedy in damages, or another civil remedy.

Ans: Both maxims show that a tort needs a violation of a legal right. Loss alone is not enough.

Injuria sine damno

It means violation of a legal right without actual loss. The act is actionable, because the right itself is protected.

• Ashby v. White (1703): a returning officer wrongly refused to allow Ashby to vote. His candidate won anyway, so Ashby lost nothing. The court held that the denial of a legal right to vote was actionable.
• Marzetti v. Williams (1830): a bank wrongly refused to pay a customer’s cheque, although he had funds. The customer could sue even without proof of actual loss.

Damnum sine injuria

It means loss without violation of a legal right. It is not actionable, however serious the loss.

• Gloucester Grammar School Case (1410): a teacher opened a rival school and the plaintiff schoolmaster had to lower his fees. No action lay, since competition is lawful.
• Mogul Steamship Co. v. McGregor Gow (1892): rival shipowners who formed a group to drive out a competitor by lower freight rates were not liable. This was legitimate competition.
• Bradford Corporation v. Pickles (1895): Pickles drained water from under his own land, and the Corporation’s supply was lost. He was not liable, because he had a right to do so.
• Acton v. Blundell (1843): a landowner who drained a neighbour’s well by digging a pit on his land was not liable.

Importance

In torts, every violation of a legal right is actionable even without loss (injuria sine damno), but loss that results from the lawful exercise of one’s own rights has no remedy (damnum sine injuria).

Ans: A person is liable in tort only when the following elements are present.

• 1. A wrongful act or omission. The defendant must have done something he should not have done, or failed to do something he should have done. Both acts and omissions count, but an omission is wrongful only if there was a duty to act.
• 2. A legal duty. The act or omission must breach a duty imposed by law. A moral or social duty is not enough. The duty is owed to the plaintiff or to people generally (Donoghue v. Stevenson (1932)).
• 3. Legal damage. The plaintiff’s legal right must have been violated, and he must have suffered a legal injury. Some torts, such as trespass and libel, are actionable without proof of loss. Others, like negligence, need proof of damage.
• 4. A legal remedy. The law gives the injured person a civil remedy, usually unliquidated damages, and in some cases an injunction (ubi jus ibi remedium).
• 5. Mental element (in most torts). The wrong may be committed intentionally, negligently or, in a few cases, without fault, as in strict liability.

If the wrong is only a breach of contract or of trust, it is not a tort. The common law remedy of unliquidated damages marks out a tort from those wrongs.

Ans: Torts affecting the human body protect a person’s bodily safety, freedom and peace of mind. They are mostly torts of direct interference, called trespass to the person.

1. Assault

An act that makes the plaintiff reasonably fear immediate force. Stephens v. Myers (1830): the defendant moved towards the plaintiff with a clenched fist and was stopped before he struck. It was an assault.

2. Battery

The intentional application of force, however slight, without justification. Cole v. Turner (1704): the least touching of another in anger is a battery. Collins v. Wilcock (1984): ordinary touching that is generally acceptable in everyday life is not a battery.

3. False imprisonment

The total, unlawful restraint of a person’s liberty. Bird v. Jones (1845): blocking one way out of a public way was not imprisonment. Meering v. Grahame-White Aviation (1919): the plaintiff need not know he is being detained. Bhim Singh v. State of J&K (1985): compensation for illegal detention by police.

4. Malicious prosecution

Starting a prosecution without reasonable and probable cause, with malice, which ends in the plaintiff’s favour and causes damage. Mohamed Amin v. Jogendra Kumar Bannerjee (1947).

5. Nervous shock

Psychiatric injury caused by shock. Dulieu v. White (1901); Hambrook v. Stokes (1925); Alcock v. Chief Constable of South Yorkshire (1992).

6. Intentional infliction of emotional distress

Wilkinson v. Downton (1897): the defendant falsely told the plaintiff that her husband had been seriously injured in an accident. She suffered a serious illness from the shock. The defendant was liable for a deliberate act calculated to cause harm.

Remedies

Damages, which may include aggravated or exemplary damages for wilful acts, and an injunction. The writ of habeas corpus is available against illegal detention.

Ans: Injurious falsehood (also called malicious falsehood) is the publication of a false statement, with malice, about the plaintiff’s goods, property or business, which causes him actual financial loss. It protects economic interests, not reputation.

Essentials

• A false statement about the plaintiff’s goods, services, title or business.
• Publication to a third person.
• Malice: the statement was made without just cause, with knowledge of its falsity or reckless disregard of the truth, and with an improper motive.
• Special damage: proof of actual financial loss, such as lost customers.

Kinds

• Slander of title: a false statement that the plaintiff has no title to his property.
• Slander of goods: a false statement that disparages the plaintiff’s goods.
• Trade libel: a false statement on the quality of his business.

Cases

• Ratcliffe v. Evans (1892): a newspaper falsely stated that the plaintiff’s firm had ceased to exist. The Court of Appeal held that the plaintiff must prove actual loss. A general loss of business can be enough where the customers lost cannot be named.
• White v. Mellin (1895): a trader’s claim that his baby food was better than another’s was a mere puff and not actionable.

Difference from defamation

• Defamation protects reputation. Injurious falsehood protects economic interests.
• In defamation the burden is on the defendant to prove truth. In injurious falsehood the plaintiff must prove falsity and malice.
• Defamation is actionable per se in libel. Injurious falsehood requires special damage.

Ans: Defamation is the publication of a false statement that lowers a person in the estimation of right-thinking people. Under the English common law, the form of the statement decides the kind of defamation, and the kind decides what the plaintiff must prove.

Libel

• Defamation in permanent form, such as writing, printing, pictures, statues, films and broadcasts.
• It is actionable per se. The plaintiff need not prove special damage.
• It is also a criminal offence.

Slander

• Defamation in transient form, such as spoken words or gestures.
• It is actionable only on proof of special damage, that is, actual money loss, except in four cases where it is actionable per se: (a) imputing a criminal offence punishable with imprisonment; (b) imputing a contagious or loathsome disease; (c) imputing unchastity to a woman; (d) words that disparage a person in his office, profession, calling, trade or business.

Why the distinction exists

Writing lasts longer and travels further than speech. Courts therefore treat libel as more harmful.

Indian position

The criminal law in India does not distinguish between libel and slander. Section 499 of the Indian Penal Code (now Section 356 of the Bharatiya Nyaya Sanhita, 2023) covers words spoken or intended to be read, signs and visible representations alike.

Differences

• Form: permanent (libel) or transient (slander).
• Proof of damage: not needed (libel) or needed, with four exceptions (slander).
• Crime: libel is a crime in English law. Slander is not, unless it leads to a breach of the peace.

Ans: Nuisance is an unlawful interference with a person’s use or enjoyment of land, or of some right over it. Winfield and Jolowicz described it as an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.

Kinds

• Public nuisance: an act or omission that affects the comfort and convenience of the public at large or of a class of persons. It is a crime. A private person can sue only if he shows special, particular damage over and above that of the public. Example: obstructing a highway.
• Private nuisance: an unreasonable interference with a person’s use or enjoyment of his land. It is a civil wrong. Example: noise, smoke or smells from the neighbouring factory.

Ingredients of private nuisance

• Unreasonable interference. The test is what a reasonable person would bear. Relevant factors: locality (Sturges v. Bridgman (1879): “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”), duration, sensitivity of the plaintiff, and malice (Christie v. Davey (1893)).
• Damage to the plaintiff. For physical injury to property, the locality does not matter. For personal discomfort, it does (St. Helen’s Smelting Co. v. Tipping (1865)).
• Interest in land. The plaintiff must have a right in the land affected.

Defences

• Prescription (twenty years’ uninterrupted use).
• Statutory authority.
• Consent of the plaintiff.
• Acts that are reasonable and not harmful by nature are not nuisances.
• Coming to the nuisance is no defence (Sturges v. Bridgman).

Remedies

Damages, injunction, and abatement. In public nuisance, a magistrate may act under Section 133 of the Code of Criminal Procedure. In Municipal Council, Ratlam v. Vardhichand (1980) the Supreme Court ordered a municipality to remove open drains that were a public nuisance.

Nuisance and trespass

Trespass is a direct entry on land and is actionable per se. Nuisance is an indirect interference and needs proof of damage.

Ans: A tort is a civil wrong, other than a mere breach of contract or trust, for which the remedy is an action for unliquidated damages (Salmond).

Tort and crime

• Nature: a tort is a wrong to an individual. A crime is a wrong to the State and society.
• Parties: in a tort the injured person sues. In a crime the State prosecutes.
• Purpose: tort law compensates the victim. Criminal law punishes the offender.
• Remedy: damages in tort. Imprisonment, fine or death in crime.
• Intention: intention is not always needed in torts. Most crimes need a guilty mind (mens rea).
• Compromise: a tort claim may be settled freely. Many crimes cannot be compounded.
• The same act can be both. A person who assaults another commits a crime and a tort.

Tort and breach of contract

• Duty: in tort, the duty is fixed by law and owed to people in general. In contract, the parties create the duty by agreement and owe it to each other.
• Privity: a tort claim does not need a contract between the parties. Contract needs privity (Winterbottom v. Wright (1842)).
• Damages: unliquidated in tort. In contract they may be liquidated, as agreed by the parties.
• Motive: usually irrelevant in both.
• Capacity: a minor can be liable in tort. A minor’s contract is void.
• Some wrongs are both, for example a doctor’s negligence towards a paying patient. The plaintiff can choose. In Donoghue v. Stevenson (1932) there was no contract between the consumer and the manufacturer, and the claim lay only in tort.

Ans: A defendant is not liable for every consequence of his wrong. The law must draw a line. Two tests have been used: directness and reasonable foreseeability.

Test of directness: Re Polemis (1921)

• Workmen unloading a ship dropped a plank into the hold. It caused a spark that ignited petrol vapour and destroyed the ship.
• The Court of Appeal held that the defendants were liable for all direct consequences of a negligent act, whether or not they could reasonably have foreseen them. It was enough that some damage was foreseeable.

Test of reasonable foreseeability: The Wagon Mound (No. 1) (1961)

• Oil spilled from the defendants’ ship into Sydney harbour. It drifted to the plaintiff’s wharf, where welding was being done. The oil caught fire and damaged the wharf.
• The Privy Council held that the defendant is liable only for damage of the kind that a reasonable man could foresee. The fire damage was not foreseeable, because the oil was thought not to burn on water. Polemis was not followed.

Refinements

• The Wagon Mound (No. 2) (1967): where the risk of fire was foreseeable, though very small, the defendants were liable, since a reasonable man would not ignore it if it could easily be avoided.
• Hughes v. Lord Advocate (1963): a boy was burnt when a paraffin lamp left by workmen exploded. Burns were foreseeable, even though the manner was not.
• Smith v. Leech Brain (1962): a defendant must take his victim as he finds him (the thin skull rule).

Conclusion

The foreseeability test is the accepted test for negligence. It fixes liability for the kinds of loss that a reasonable person would foresee, and excludes the unforeseeable.

Ans: Product liability is the responsibility of a manufacturer, seller or service provider to compensate a person for harm caused by a defective product or deficient service. Section 2(34) of the Consumer Protection Act, 2019 defines it. Chapter VI (Sections 82 to 87) governs it.

Who may be sued (Section 83)

A complainant may bring a product liability action against a product manufacturer, a product service provider or a product seller for harm caused by a defective product.

Liability of manufacturer (Section 84)

• The product has a manufacturing defect, or is defective in design.
• It deviates from the manufacturing specifications.
• It does not conform to the express warranty.
• It fails to carry adequate instructions or warnings.
• He is liable even if he proves that he was not negligent or fraudulent in making the express warranty.

Service provider and seller (Sections 85 and 86)

A service provider is liable for a faulty or deficient service, for negligence or for failing to warn. A product seller who is not the manufacturer is liable if he controlled the design, testing or labelling, altered the product, gave his own express warranty, or sold a product whose manufacturer cannot be identified.

Exceptions (Section 87)

No action lies against a seller if the product was misused, altered or modified at the time of harm. A manufacturer is not liable for failure to warn where the product was bought by an employer and warnings were given to the employer, among other cases.

Common law background

Donoghue v. Stevenson (1932) held that a manufacturer owes a duty of care to the ultimate consumer. The Act extends this to a no-fault liability.

Sections: 2(34)8384858687

Ans: Volenti non fit injuria means that no wrong is done to a person who consents. A person who voluntarily agrees to take the risk of harm cannot afterwards sue for it. It is a general defence in torts.

Essentials

• The plaintiff knew of the risk. Knowledge is not enough. He must have agreed to run the risk (Smith v. Baker (1891): a workman who worked under a crane lifting stones over his head did not consent to the risk of injury).
• The consent was free, not under pressure or compulsion (Bowater v. Rowley Regis Corporation (1944): a carter ordered to drive an unruly horse did not consent).
• The risk is one that the plaintiff agreed to, not an illegal act.

Leading cases

• Hall v. Brooklands Auto Racing Club (1933): spectators at a motor race accept the ordinary risks of the sport.
• Nettleship v. Weston (1971): a learner driver’s instructor did not consent to the risk of negligent driving.
• Dann v. Hamilton (1939): a passenger who got into a car with a driver he knew was drunk was held not to have consented to the risk of injury, since knowledge alone did not amount to consent.
• ICI v. Shatwell (1965): the defence applied to a shot-firer who joined in an unsafe act.

Limits

The defence does not apply to rescuers who act on the emergency created by the defendant (Haynes v. Harwood (1935)), nor generally when a statutory duty is owed to the plaintiff for his protection.

Ans: Caveat emptor means “let the buyer beware”. Under this common law rule, the buyer must inspect the goods and take the risk of defects. The seller is not liable for quality unless he gave a warranty or committed fraud.

Origin and justification

It rests on the idea that parties bargain at arm’s length and that the buyer can examine the goods himself. Chandelor v. Lopus (1603) is an early authority.

Position in India

Section 16 of the Sale of Goods Act, 1930 states the rule: there is no implied condition as to quality or fitness, except as the Act provides. The main exceptions are:

• Fitness for purpose, where the buyer makes known the purpose and relies on the seller’s skill (Section 16(1)).
• Merchantable quality, where goods are bought by description from a seller who deals in such goods (Section 16(2)). The rule does not apply if the buyer has examined the goods and the defect should have been seen.
• Sale by sample and sale by description (Sections 15 and 17).
• Fraud or misrepresentation by the seller.

Present position

The rule has declined. The Consumer Protection Act, 2019 protects the consumer against defective goods, deficient services and unfair trade practices, and gives a product liability remedy. The law now leans towards caveat venditor (let the seller beware).

Ans: A foreign sovereign is a foreign State, its ruler or its ambassador. International law gives such persons immunity from the jurisdiction of the courts of another State, based on the equality of sovereign States.

Indian law: Section 86 of the Code of Civil Procedure, 1908

• No foreign State may be sued in any Indian court except with the consent of the Central Government, certified in writing by a Secretary to that Government.
• The consent may be given for a specified suit, or for all suits of a class.
• It is not given unless the foreign State has itself sued the person, trades within the court’s limits, owns immovable property in the case, or has waived the privilege.
• The same protection extends to a ruler of a foreign State and to ambassadors and envoys, who also cannot be arrested.

Diplomatic immunity

The Vienna Convention on Diplomatic Relations, 1961, which India has enacted through the Diplomatic Relations (Vienna Convention) Act, 1972, gives diplomatic agents immunity from civil and criminal jurisdiction, with a few exceptions.

Restrictive immunity

Modern law distinguishes between sovereign acts (acta jure imperii), which are immune, and commercial acts (acta jure gestionis), which are not. See The Philippine Admiral (1977) and Trendtex Trading Corp. v. Central Bank of Nigeria (1977). This is why a foreign State that trades can be sued in tort or contract, with the Central Government’s consent in India.

Ans: Wrongful confinement is the intentional, unlawful total restraint of a person within limits from which he has no way out. In civil law it is the tort of false imprisonment. The Indian Penal Code (Sections 339 to 342, now in the Bharatiya Nyaya Sanhita, 2023) made it a crime.

Wrongful restraint and wrongful confinement

• Wrongful restraint is obstructing a person from going in a direction in which he has a right to go. It is a partial restraint. He may go in another direction.
• Wrongful confinement is a total restraint, which stops a person from proceeding beyond certain limits. It is the more serious wrong.

Essentials

• Total restraint of movement.
• No lawful authority.
• An intentional act of the defendant.
• The place may be a room, a house, a car or even an open area (Bird v. Jones (1845), where the plaintiff could have gone another way and so there was no confinement).

Remedies

• Damages in a civil action, without proof of special damage.
• The writ of habeas corpus under Articles 32 and 226.
• Compensation for illegal detention by State agents (Rudul Sah v. State of Bihar (1983); Bhim Singh v. State of J&K (1985)).
• Criminal prosecution.

Defences

Lawful arrest, consent, and legal authority such as a parent’s reasonable control over a child.

Ans: Statutory liability is the liability that arises when a person breaks a duty imposed by a statute, and the breach causes harm to another. It is a tort known as breach of statutory duty.

Conditions for a civil action

• The statute imposes a duty on the defendant.
• The statute was meant to protect a class of persons that includes the plaintiff, and not only the public in general.
• The plaintiff suffered harm of the kind that the statute was meant to prevent.
• The defendant broke the duty and the breach caused the harm.
• The statute does not exclude a civil remedy. Where it prescribes only a penalty, courts ask whether the legislature meant to give a private right of action (Cutler v. Wandsworth Stadium (1949)).

Case

Groves v. Wimborne (1898): a statute required factory owners to fence dangerous machinery. A boy was injured by unfenced machinery. The Court of Appeal held that the owner was liable in damages, even though the statute provided a fine.

Defences

The defendant may argue that he took all reasonable steps (where the statute allows it), contributory negligence, or consent in limited cases. The plea that the defendant was careful is not a defence where the duty is absolute.

Statutory authority as a defence

Separately, an act done under the authority of a statute is not actionable if the damage is the inevitable result of the act. The authorised body must use reasonable care.

Ans: Conversion is a wilful and wrongful dealing with another person’s goods that interferes with his right to possess or own them. The defendant treats the goods as his own. Conversion protects ownership and possession of movable property.

Essentials

• A dealing with the plaintiff’s goods that is inconsistent with the plaintiff’s right. In Hollins v. Fowler (1875) Blackburn J described it as a dealing with goods in a manner inconsistent with the right of the person entitled to them.
• Intention to deal with the goods as one’s own. Good faith or mistake is no defence (Hollins v. Fowler). But a mere interference that does not deny the owner’s right is not conversion (Fouldes v. Willoughby (1841), where a ferryman put the plaintiff’s horses ashore without claiming any right over them).
• The plaintiff had possession or an immediate right to possession.

Forms

• Wrongful taking.
• Wrongful detention, after a demand and refusal to return.
• Wrongful disposal, such as sale or pledge.
• Destruction or alteration of the goods.
• Wrongful delivery to a third person.

Remedies

• Damages equal to the value of the goods and any consequential loss.
• Return of the goods, if the court orders it.
• Re-caption, as a self-help remedy.
• Armory v. Delamirie (1722): the finder of a jewel has a good title against all but the true owner, and the goldsmith who refused to return it was liable for its value.

Related torts

Trespass to goods is the direct interference with possession. Detinue is the wrongful refusal to return goods. In England, the Torts (Interference with Goods) Act, 1977 merged detinue into conversion.

Ans: Pecuniary jurisdiction is the power of a Consumer Commission to hear a complaint depending on the value of the goods or services paid as consideration. Under the Consumer Protection Act, 2019, the value is the consideration paid, not the compensation claimed (this changed from the 1986 Act).

Under the Act (Sections 34, 47 and 58)

• District Commission: up to Rs 1 crore (Section 34(1)).
• State Commission: above Rs 1 crore and up to Rs 10 crore (Section 47(1)(a)(i)). It also hears appeals from the District Commission (Section 41).
• National Commission: above Rs 10 crore (Section 58(1)(a)(i)). It also hears appeals from State Commissions (Section 51).

As revised by the 2021 Rules

Each section lets the Central Government prescribe another value. The Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 revised the limits to:

• District Commission: up to Rs 50 lakh.
• State Commission: above Rs 50 lakh and up to Rs 2 crore.
• National Commission: above Rs 2 crore.

The figures are as per the 2021 Rules. Students should check whether a later notification has changed them.

Other points

• Unfair contract complaints go to the State Commission if the consideration paid does not exceed Rs 10 crore, and to the National Commission above that (Sections 47(1)(a)(ii) and 58(1)(a)(ii)).
• Territorial jurisdiction: the complainant may file where he resides or works for gain, in addition to where the opposite party is based or the cause of action arises (Section 34(2)).
• Limitation: two years from the cause of action (Section 69).
• Under the 1986 Act the limits were fixed by the value of the goods or services and compensation claimed: District Forum up to Rs 20 lakh, State Commission up to Rs 1 crore, and National Commission above Rs 1 crore.

Sections: 34475869

Ans: The word tort comes from the Latin tortum, meaning twisted or wrongful. In English law it came to mean a civil wrong. The law of torts deals with the rights and duties of persons towards each other that are fixed by law and not by agreement.

Definitions

• Salmond: 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 other merely equitable obligation.
• Winfield: tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
• Fraser: an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.

Essential elements

• A wrongful act or omission. The defendant did something he should not have done, or failed to do what he was bound to do. An omission is a wrong only where there was a duty to act.
• A legal duty. The duty must be imposed by law and owed to the plaintiff or to the public at large. A purely moral duty is not enough. Donoghue v. Stevenson (1932) shows that a manufacturer owes a duty to the ultimate consumer, even without a contract.
• Legal damage. The plaintiff’s legal right must be violated. If a legal right is violated there is a tort even without loss (Ashby v. White (1703)). If there is loss without a violation of a legal right, there is no tort (Gloucester Grammar School Case (1410)).
• A legal remedy. The law gives a remedy, ubi jus ibi remedium (where there is a right there is a remedy). The main remedy is unliquidated damages. An injunction may also be granted.

Features

• It is a civil wrong, and the injured person sues for compensation.
• The duty is owed to people in general (in rem).
• The damages are unliquidated, fixed by the court.
• The mental element varies: intention, negligence, or none at all in strict liability.

Tort distinguished

A tort differs from a crime, which is a wrong against the State that is punished. It differs from a breach of contract, where the duty comes from the parties’ agreement and the claim lies only between them.

Ans: A defendant is liable in tort only when the law attaches liability to his conduct. These are the main principles of liability.

1. Wrongful act and violation of a legal right

There must be an act or omission that violates a legal right of the plaintiff. Loss without a legal wrong (damnum sine injuria) gives no claim (Bradford Corporation v. Pickles (1895)). A legal wrong without loss (injuria sine damno) is actionable (Ashby v. White (1703)).

2. Liability based on fault

The general rule is that liability depends on fault, which means intention or negligence. A person is liable only if he acted wilfully, or failed to take the care that a reasonable person would have taken. Mere accident or inevitable accident does not give rise to liability.

3. Liability without fault

• Strict liability under Rylands v. Fletcher (1868) for the escape of dangerous things from land.
• Absolute liability under M.C. Mehta v. Union of India (1987) for hazardous industries.
• Vicarious liability, where an employer is liable for the torts of the employee committed in the course of employment.
• Statutory liability, such as product liability under the Consumer Protection Act, 2019.

4. Mental element

Intention, motive and malice are important in some torts, such as conspiracy, malicious prosecution and defamation. They are irrelevant in others. A lawful act is not made unlawful by a bad motive (Bradford Corporation v. Pickles).

5. Duty of care

In negligence the plaintiff must prove a duty of care owed to him (Donoghue v. Stevenson), its breach and resulting damage.

6. Causation and remoteness

The harm must be caused by the defendant’s act (the “but for” test, Barnett v. Chelsea and Kensington Hospital (1969)) and must not be too remote (The Wagon Mound (1961)).

7. Capacity and general defences

Most persons, including minors and companies, are liable in tort. General defences, such as consent (volenti non fit injuria), necessity, private defence, inevitable accident, act of God and statutory authority, can remove liability.

8. Remedy

Damages and, where suitable, an injunction are the remedies. The maxim ubi jus ibi remedium underlies the law of torts.

Ans: Fault is the basis of liability in most torts. A person is liable for harm only if he is at fault. Fault covers the mental attitude of the wrongdoer, from intention at one end to carelessness at the other.

Meaning

Fault means a wrongful state of mind or conduct that the law blames. In tort it takes the form of intention, recklessness or negligence, plus malice where the law requires it.

Forms of fault

• Intention: the defendant desires the consequence, or knows it is substantially certain to follow.
• Recklessness: the defendant knows of a risk and goes ahead without caring whether it occurs.
• Negligence: the defendant fails to take the care that a reasonable person would take. He does not desire the result.
• Malice: an improper motive, or a wrongful act done without just cause or excuse.

Fault and liability

• Fault-based torts: negligence, conspiracy, deceit, malicious prosecution, assault and battery.
• No-fault or strict liability: Rylands v. Fletcher (1868); M.C. Mehta v. Union of India (1987); vicarious liability; product liability.
• Contributory fault: the plaintiff’s own fault reduces the damages he can recover (Butterfield v. Forrester (1809)).

Standard of fault

The law uses an objective standard, the reasonable person. Blyth v. Birmingham Waterworks (1856): negligence is the omission to do something that a reasonable man, guided by the considerations that ordinarily regulate human affairs, would do, or doing something that a prudent man would not do.

Inevitable accident

If the harm happened without fault, as an inevitable accident, the defendant is not liable (Stanley v. Powell (1891)).

Critique

Modern industrial risks and consumer products have pushed the law towards strict and absolute liability, since it is often hard for the victim to prove fault.

Ans: Intention is the state of mind in which a person desires to bring about a particular consequence, or knows that it is substantially certain to follow from his act. It is the most blameworthy form of fault.

Definitions

• Salmond: intention is the purposeful doing of an act with the foresight of the consequences. He describes it as the foresight of the consequences of an act combined with the desire to bring them about.
• A consequence is intended if it is desired, or foreseen as virtually certain, although not desired (oblique intention).

Kinds

• Direct intention: the defendant’s aim is to bring about the result. Example: A throws a stone to hit B.
• Oblique intention: the result is not the aim, but is virtually certain to follow. Example: to destroy a ship for insurance, A plants a bomb knowing the crew will die.
• Transferred intention: where A intends to injure B but injures C, the intention transfers to C.

Intention and related terms

• Motive is the reason for the act. Intention is what the actor means to do. In Bradford Corporation v. Pickles (1895) the intention was to cut off the water. The motive was to force a purchase.
• Malice is a wrongful intention or ill will.
• Negligence is the absence of intention. The defendant fails to take care, but does not desire the harm.
• Recklessness lies between intention and negligence.

Relevance in tort

• Intentional torts: assault, battery, false imprisonment, trespass, deceit, conspiracy and defamation. Without intention, there is generally no liability for them, though trespass may also arise from negligence.
• Wilkinson v. Downton (1897): the defendant lied that the plaintiff’s husband was injured. The defendant was liable for an intentional act calculated to cause harm.
• Damages: intentional wrongs may attract aggravated or exemplary damages.
• Defences: accident and mistake can negate intention.

Ans: Damages are the money awarded by a court to the plaintiff as compensation for the wrong he has suffered. The main aim is to restore him, so far as money can, to the position he would have been in if the wrong had not occurred.

Kinds of damages

• 1. Nominal damages. A small sum awarded where a legal right is violated but no actual loss is shown. They recognise that the right was violated (Ashby v. White (1703); Constantine v. Imperial Hotels (1944)).
• 2. Contemptuous damages. The smallest coin, awarded where the plaintiff has technically won but the court thinks the claim was worthless or the plaintiff was no better than the defendant.
• 3. General damages. Damages for loss that the law presumes follows from the wrong and that need not be proved in detail, such as pain and suffering and loss of reputation.
• 4. Special damages. Compensation for actual financial loss that can be itemised and must be pleaded and proved, such as medical bills and loss of earnings.
• 5. Aggravated damages. Extra compensation where the defendant’s conduct, such as malice, insult or high-handedness, aggravated the plaintiff’s injury to his feelings.
• 6. Exemplary (punitive) damages. Awarded to punish and deter, not to compensate. Rookes v. Barnard (1964) confined them to oppressive or arbitrary acts of government servants, conduct calculated to make a profit exceeding the compensation, and where a statute authorises them.
• 7. Prospective damages. Compensation for loss that will arise in the future, such as future loss of earnings after a disabling injury.

Assessment

• Lump sum in a single award, for both past and future loss.
• In fatal accident and motor claims, the Supreme Court uses the multiplier method (Sarla Verma v. Delhi Transport Corporation (2009)), with a fixed percentage added for future prospects (National Insurance Co. v. Pranay Sethi (2017)).
• The plaintiff must mitigate the loss.
• The Fatal Accidents Act, 1855 and the Motor Vehicles Act, 1988 provide for compensation to dependants.

Ans: General defences are pleas that, if proved, make the defendant not liable even though the elements of a tort are present. They apply to many torts.

1. Volenti non fit injuria (consent)

A person who has agreed to run a risk cannot complain of the harm. Mere knowledge of the risk is not enough (Smith v. Baker (1891)).

2. Necessity

An act done to prevent a greater harm is justified. Example: pulling down a house to stop the spread of a fire (Cope v. Sharpe (No. 2) (1912)). The defendant must show that the danger was imminent and the act reasonable.

3. Private defence

A person may use reasonable force to defend himself, his property or another person. The force must not be excessive. In Bird v. Holbrook (1828) a spring gun set to protect a garden was held unlawful.

4. Inevitable accident

If the harm could not have been prevented by reasonable care, the defendant is not liable (Stanley v. Powell (1891)).

5. Act of God

An extraordinary natural event that no human foresight could guard against, such as an exceptional storm (Nichols v. Marsland (1876)).

6. Statutory authority

An act done under a statute is not actionable if the damage is the inevitable result (Vaughan v. Taff Vale Railway (1860)).

7. Plaintiff’s default and contributory negligence

The plaintiff’s own fault may bar or reduce his claim (Butterfield v. Forrester (1809)). Modern law reduces damages in proportion to his share of fault.

8. Mistake

Mistake of fact or law is generally no defence (Consolidated Co. v. Curtis (1892)), but it may be a defence in malicious torts, where honest belief negates malice.

9. Judicial and quasi-judicial acts

A judge acting judicially is not liable for what he does in good faith. In India the Judicial Officers’ Protection Act, 1850 gives this protection.

10. Parental or quasi-parental authority

A parent or teacher may use moderate and reasonable punishment to correct a child.

Ans: A defendant may escape liability by proving a general defence. Indian law draws on the English common law and on provisions of the Indian Penal Code, 1860 (now the Bharatiya Nyaya Sanhita, 2023), which are used as a guide for similar principles in tort.

1. Consent (volenti non fit injuria)

• A person who agrees to run a known risk cannot sue. The consent must be free and informed (Smith v. Baker (1891); Hall v. Brooklands Auto Racing Club (1933)).
• The Penal Code provisions on consent (Sections 87 to 92) are used by analogy, for example for surgical operations done in good faith for the patient’s benefit.
• Nettleship v. Weston (1971): a learner driver’s instructor was not held to have consented to the risk of negligent driving.
• Rescuers are not taken to consent (Haynes v. Harwood (1935)).

2. Necessity and private defence

• Necessity justifies an act done to avoid a greater harm (Leigh v. Gladstone (1909): force-feeding of a hunger-striking prisoner; Cope v. Sharpe (No. 2) (1912): burning a heath to stop a fire). The Penal Code, Section 81, recognises it.
• Private defence allows reasonable force to defend the body and property. Sections 96 to 106 of the Penal Code set out the right. Bird v. Holbrook (1828): excessive and indiscriminate measures, such as a spring gun, are not allowed.

3. Inevitable accident and act of God

• An inevitable accident is one that could not have been avoided by reasonable care (Stanley v. Powell (1891); Brown v. Kendall (1850)).
• Act of God is an extraordinary natural event that could not be foreseen (Nichols v. Marsland (1876)). It is accepted as a defence in strict liability under Rylands v. Fletcher but not under absolute liability (M.C. Mehta v. Union of India (1987)).

4. Statutory authority

Acts done under a statute are not actionable, provided the damage is the inevitable result (Vaughan v. Taff Vale Railway (1860); Hammersmith Railway v. Brand (1869)).

5. Contributory negligence

At common law it barred recovery (Butterfield v. Forrester (1809)). The last opportunity rule softened it (Davies v. Mann (1842)). Modern law apportions the damages. Indian courts follow this in motor accident claims.

6. Mistake

It is generally no defence, but it may negate malice or intention. Section 76 and Section 79 of the Penal Code protect acts done by mistake of fact in the belief that one is bound or justified by law.

7. Judicial acts and acts of State

• Judges and magistrates are protected for acts done in good faith in discharge of judicial duty (Judicial Officers’ Protection Act, 1850; Section 77, Penal Code).
• Acts of State done against foreigners cannot be questioned in municipal courts.

8. Parental authority

Section 89 of the Penal Code allows acts done in good faith for the benefit of a child or a person of unsound mind, with the guardian’s consent.

Ans: Vicarious liability is the liability of one person for the wrong of another. The State is liable for the torts of its employees when they are committed in the course of employment, subject to the exception for sovereign functions.

Constitutional basis

Article 300(1) of the Constitution says that the Government of India and the Government of a State may sue or be sued by the name of the Union or the State. Their liability is the same as that of the Dominion of India and the Provinces before the Constitution came into force, subject to any law made by Parliament or the legislature. The pre-Constitution position is the key.

Principle: sovereign and non-sovereign functions

• The East India Company was a trading body and also a sovereign. In P. & O. Steam Navigation Co. v. Secretary of State (1861) the Company was liable for acts done in its commercial or non-sovereign business. It was not liable for acts done in the exercise of sovereign powers.
• The same distinction applies to the State today. The State is liable like any employer for torts of its servants in non-sovereign functions.

Test of liability

• The tort must have been committed by an employee of the State.
• In the course of employment, which includes acts that are wrongful modes of doing an authorised act.
• The function being performed must not be a sovereign function.

Sovereign functions

Acts such as defence, maintenance of the armed forces, administration of justice, and exercise of police powers have been treated as sovereign functions (Kasturilal Ralia Ram Jain v. State of U.P. (1965)).

Narrowing of the immunity

• State of Rajasthan v. Vidyawati (1962): the State was liable for a negligent driver of a government jeep.
• N. Nagendra Rao & Co. v. State of Andhra Pradesh (1994): the Supreme Court held that the sovereign immunity doctrine does not suit a welfare State, and held the State liable for negligent handling of seized goods.
• Rudul Sah v. State of Bihar (1983), Nilabati Behera v. State of Orissa (1993): for violations of the right to life and liberty, compensation can be awarded under Articles 32 and 226. Sovereign immunity is no defence.
• Saheli v. Commissioner of Police, Delhi (1990): the State was held liable for the death of a boy caused by police beating.

Criticism and reform

The Law Commission of India (First Report, 1956) recommended abolishing the immunity. No statute has been enacted. The courts have narrowed it by interpretation.

Ans: The liability of the State for torts of its servants has been shaped by decided cases, which are best taken in order.

1. P. & O. Steam Navigation Co. v. Secretary of State for India (1861)

The Calcutta Supreme Court held that the East India Company was liable for the negligence of its servants in a non-sovereign function, such as conducting a trade. It drew the distinction between sovereign and non-sovereign functions. The Company was not liable for acts done in the exercise of sovereign powers.

2. Secretary of State v. Hari Bhanji (1882)

The Madras High Court allowed a suit to recover excess salt duty that the State had collected. It held that the immunity of the East India Company was confined to acts of State. There was no immunity for acts done under the colour of municipal law, so the Secretary of State was liable.

3. State of Rajasthan v. Vidyawati (1962)

A government jeep, driven rashly by a government driver on the way to a workshop, knocked down and killed a pedestrian. The Supreme Court held the State liable, like any private employer. The driver was not performing a sovereign function.

4. Kasturilal Ralia Ram Jain v. State of U.P. (1965)

Police seized gold from a merchant, and the head constable misappropriated it. The Supreme Court held that the State was not liable, since the seizure was done in the exercise of statutory power, which is a sovereign function. The Court noted that the law needed reform.

5. Rudul Sah v. State of Bihar (1983)

Rudul Sah was kept in jail for 14 years after he was acquitted. The Supreme Court awarded compensation under Article 32, holding that sovereign immunity was no answer to a breach of the right to liberty.

6. Nilabati Behera v. State of Orissa (1993)

A young man died in police custody. The Court held the State liable to pay compensation in public law, in addition to any remedy in tort.

7. Chairman, Railway Board v. Chandrima Das (2000)

Railway employees raped a Bangladeshi national at the Howrah railway station. The Court awarded compensation under Article 32 for the violation of her fundamental right to life, and held that the right applies to foreign nationals.

8. N. Nagendra Rao & Co. v. State of Andhra Pradesh (1994)

The Supreme Court held that the sovereign function exception is outdated and that the State should be held liable for the negligent acts of its servants unless the act is truly an exercise of sovereign power.

Present position

The State is liable for torts in non-sovereign functions, and for violation of fundamental rights, even in sovereign functions. The immunity applies, if at all, only in a narrow range of true sovereign acts.

Ans: Vicarious liability is the liability of one person for the tort committed by another. The wrongdoer is liable, and so is the person who stands in a particular relationship to him. It rests on the maxims qui facit per alium facit per se (he who does an act through another does it himself) and respondeat superior (let the master answer).

Reasons

• The employer gains from the work and should bear its risks.
• The employer has control over the employee.
• The employer is better able to pay, and may insure.
• It encourages the employer to hire careful people.

Relationships that attract vicarious liability

1. Master and servant

• The master is liable for torts committed by the servant in the course of employment.
• Who is a servant? Courts have used the control test (Short v. J. & W. Henderson (1946)), the integration test (Stevenson Jordan v. MacDonald (1952)) and the multiple test, which looks at control, ownership of tools, the chance of profit and risk of loss (Ready Mixed Concrete v. Minister of Pensions (1968)).
• Course of employment: an act authorised, or a wrongful mode of doing an authorised act. Limpus v. London General Omnibus Co. (1862): a driver who raced another bus, against orders, made the employer liable. Century Insurance Co. v. Northern Ireland Road Transport Board (1942): a tanker driver’s negligent smoking while delivering petrol was within the course of employment.
• The employer is not liable for acts outside the course of employment, as where the servant is on a frolic of his own.
• Lister v. Hesley Hall (2001): even a deliberate wrong is covered if it is closely connected with the employment.

2. Principal and agent

A principal is liable for the torts of his agent done within the scope of the agent’s authority. This includes fraud by the agent for the principal’s benefit (Lloyd v. Grace, Smith & Co. (1912)).

3. Partners

Each partner is the agent of the firm. The firm and the partners are jointly and severally liable for torts committed by a partner in the ordinary course of the firm’s business (Sections 18 and 26 of the Indian Partnership Act, 1932).

4. Company and its officers

A company is liable for the torts of its servants and officers during their employment.

5. Employer and independent contractor

• The employer is generally not liable for the torts of an independent contractor.
• The exceptions are where the work is dangerous or hazardous, where the employer is under a non-delegable duty, and where the employer authorises or ratifies the wrong (Bower v. Peate (1876)).

6. State and its servants

The State is liable for the torts of its servants, except in the exercise of sovereign powers (State of Rajasthan v. Vidyawati (1962)).

7. Owner and driver

An owner who lets another drive his vehicle is liable if the driver acts as his agent or for his purposes. Otherwise he is not (Ormrod v. Crosville Motor Services (1953)).

Ans: The Consumer Protection Act, 1986 was passed to protect the interests of consumers and to provide simple, quick and inexpensive redress of their disputes. The Consumer Protection Act, 2019 has since repealed it (Section 107), with effect from 20 July 2020. The 1986 features are as follows.

1. Objects

It aimed at better protection of the interests of consumers and the setting up of authorities for the settlement of consumer disputes.

2. Wide coverage

It applied to all goods and services, whether in the private, public or cooperative sector, unless exempted by the Central Government.

3. Definitions

• Consumer: a person who buys goods or hires services for a consideration, and users and beneficiaries with his approval. It excluded persons who buy for resale or commercial purpose.
• Defect and deficiency: faults in goods or in the quality or manner of performing a service.
• Unfair trade practice and restrictive trade practice: defined in the Act.

4. Consumer rights

The Act recognised the rights to safety, information, choice, to be heard, to seek redressal and to consumer education.

5. Consumer Protection Councils

It set up Central, State and (later) District Consumer Protection Councils to promote and protect consumer rights (Sections 4 to 8B).

6. Three-tier redressal agencies

• District Forum for complaints up to Rs 20 lakh (Section 11).
• State Commission for complaints from Rs 20 lakh to Rs 1 crore, and appeals from the District Forum (Section 17).
• National Commission for complaints above Rs 1 crore, and appeals from State Commissions (Section 21).
• Appeals lie to the State Commission (Section 15), the National Commission (Section 19) and the Supreme Court (Section 23), generally within 30 days.

7. Relief (Section 14)

The Forum may order removal of defects, replacement of goods, refund of price, compensation, withdrawal of hazardous goods, discontinuation of unfair trade practices, corrective advertisements and costs. It may also award punitive damages.

8. Procedure

The procedure is simple. Complaints are made on plain paper, no lawyer is needed, and a decision is meant within three to five months. The Forums have the powers of a civil court for summoning, discovery and receiving evidence on affidavits.

9. Other features

• Limitation of two years (Section 24A).
• Penalty for non-compliance: imprisonment of one month to three years, or fine of Rs 2,000 to Rs 10,000, or both (Section 27).
• The Act is in addition to other laws (Section 3), so the consumer need not give up other remedies.
• Orders are enforced like a decree of a civil court.

Improvements by the 2019 Act

The 2019 Act added the Central Consumer Protection Authority, product liability, mediation, e-commerce coverage, penalties for misleading advertisements and a pecuniary jurisdiction based on the consideration paid.

Ans: An occupier of premises owes a duty of care to people who come on them. The occupier is the person who has control over the premises, not necessarily the owner (Wheat v. E. Lacon & Co. (1966)). The extent of the duty depends on the entrant’s status.

Common law position (before the Occupiers’ Liability Act, 1957)

• Invitee, a person who enters for the occupier’s material interest, such as a customer. The occupier must protect him against unusual dangers that the occupier knows of or ought to know of (Indermaur v. Dames (1866)).
• Licensee, a person who enters with permission, for his own purposes. The occupier must warn him of concealed dangers known to the occupier (Fairman v. Perpetual Investment Building Society (1923)).
• Trespasser, a person who enters without permission. The occupier owed no duty, except not to injure him deliberately or recklessly (Addie v. Dumbreck (1929)). British Railways Board v. Herrington (1972) held that the occupier owes a duty of common humanity where he knows of the trespassers’ presence.
• Contractual entrant, a person who enters under a contract. The duty depends on the contract.

The English statutes

• Occupiers’ Liability Act, 1957 replaced the invitee and licensee distinction with a single common duty of care to all lawful visitors, to take such care as is reasonable to see that the visitor is reasonably safe in using the premises for the purposes for which he is invited or permitted to be there.
• Occupiers’ Liability Act, 1984 deals with the duty to persons other than visitors, such as trespassers.

Special rules

• Children: an occupier must be prepared for children to be less careful. An allurement, such as a tempting object, may amount to an implied invitation (Glasgow Corporation v. Taylor (1922)).
• Skilled visitors: a person in the exercise of his calling is expected to guard against ordinary risks of it (Roles v. Nathan (1963)).
• Warning may discharge the duty if it enables the visitor to be reasonably safe.
• Independent contractors: the occupier is not liable for the contractor’s faults if he took care in selecting the contractor.

Indian law

India has no occupiers’ liability statute. The courts follow the English common law and the principles of negligence. An occupier of hazardous premises is also liable under the rule of strict or absolute liability.

Ans: A tort claim, once it has arisen, can come to an end in several ways. These are called modes of extinction or discharge of liability.

1. Death of a party (actio personalis moritur cum persona)

At common law, a personal action died with either the wrongdoer or the victim. Statutes now allow most claims to survive (Section 306 of the Indian Succession Act, 1925), except purely personal wrongs such as defamation. Baker v. Bolton (1808) held that the death of a person gave no claim at common law. The Fatal Accidents Act, 1855 gives dependants a claim.

2. Waiver and acquiescence

• Waiver: the voluntary giving up of a known right.
• Acquiescence: standing by with knowledge while the wrong is done, which makes a later complaint unfair. It bars an injunction (Section 41(e), Specific Relief Act, 1963).

3. Accord and satisfaction

The plaintiff agrees to accept a different performance in full settlement, and receives it. The claim is discharged (Section 63, Indian Contract Act, 1872).

4. Release

A formal discharge by the plaintiff for consideration. A release of one joint tortfeasor releases all. A covenant not to sue does not (Duck v. Mayeu (1892)).

5. Judgment recovered

Once a judgment is given on a cause of action, the plaintiff cannot sue again on the same cause (res judicata, Section 11 of the Code of Civil Procedure, 1908). Satisfaction of a judgment against one joint tortfeasor bars suits against the others.

6. Limitation

• The Limitation Act, 1963 bars a claim not brought within the prescribed time. The right is not taken away, but the remedy is.
• A suit for false imprisonment, malicious prosecution, libel or slander must be brought within one year (Articles 73 to 76).
• A suit for wrongfully taking or converting movable property must be brought within three years (Article 91).

7. Other modes

• Merger or novation: replacing the claim by a new contract or a statutory right.
• Statutory bar: where a statute extinguishes the claim.
• Consent of the plaintiff given before the wrong (volenti non fit injuria).

Ans: Negligence is the breach of a legal duty to take care, which results in damage to the plaintiff that the defendant did not desire. In Blyth v. Birmingham Waterworks Co. (1856), Alderson B described it as the omission to do something that a reasonable man, guided by the considerations that regulate human affairs, would do, or the doing of something that a prudent and reasonable man would not do.

Essentials

1. Duty of care

• The defendant must owe the plaintiff a legal duty of care.
• Donoghue v. Stevenson (1932): a manufacturer of ginger beer was liable to a consumer who found a decomposed snail in an opaque bottle. Lord Atkin’s neighbour principle: you must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour, that is, persons so closely and directly affected that you ought to have them in mind.
• Caparo Industries v. Dickman (1990): the damage must be foreseeable, there must be proximity, and it must be fair, just and reasonable to impose a duty.

2. Breach of duty

• The defendant fell below the standard of the reasonable person. The standard is objective. A doctor must show the skill of an ordinarily competent doctor (Bolam v. Friern Hospital Management Committee (1957)).
• Factors: probability of harm, seriousness of the harm, the cost of precaution and the social usefulness of the act (Bolton v. Stone (1951): a cricket ball was hit out of the ground once in many years, so there was no breach; Paris v. Stepney Borough Council (1951): greater care was owed to a one-eyed workman).
• Res ipsa loquitur may help the plaintiff prove breach (Byrne v. Boadle (1863); Municipal Corporation of Delhi v. Subhagwanti (1966)).

3. Damage caused by the breach

• The plaintiff must prove damage, and that it was caused by the breach, applying the “but for” test (Barnett v. Chelsea and Kensington Hospital Management Committee (1969): the casualty doctor’s failure to examine a patient who had been poisoned did not cause his death, because he would have died anyway).
• The damage must not be too remote (The Wagon Mound (1961)).

Defences

Contributory negligence (Butterfield v. Forrester (1809)), volenti non fit injuria, and inevitable accident.

Indian law

• Jacob Mathew v. State of Punjab (2005): a doctor is not criminally liable unless his negligence is gross.
• Indian Medical Association v. V.P. Shantha (1995): medical negligence is within the Consumer Protection Act.
• Spring Meadows Hospital v. Harjot Ahluwalia (1998): damages for negligence in treating a child.

Ans: The Consumer Protection Act, 1986 set up a three-tier system. This answer covers the first two tiers. (The 2019 Act has since repealed the 1986 Act and renamed the bodies as District, State and National Commissions.)

A. District Forum

Composition (Section 10)

A President, who is or has been, or is qualified to be, a District Judge, and two other members, one of whom is a woman. Members must be at least 35 years of age, hold a degree and have at least ten years’ experience in economics, law, commerce, accountancy, industry, public affairs or administration.

Jurisdiction (Section 11)

• Pecuniary: complaints where the value of the goods or services and the compensation claimed does not exceed Rs 20 lakh.
• Territorial: where the opposite party resides, carries on business or has a branch office or works for gain; where any of several opposite parties does so, with the Forum’s permission; or where the cause of action arises in whole or in part.

Powers and procedure (Sections 12 to 14)

• A complaint may be made by a consumer, a recognised consumer association, one or more consumers with the same interest, or the Government (Section 12).
• The Forum refers a copy to the opposite party within 21 days. He has 30 days to reply, extendable by 15 days (Section 13).
• If a defect needs testing, the Forum sends a sample to a laboratory, which reports within 45 days.
• It has the powers of a civil court for summoning, discovery, taking evidence on affidavit, and requisitioning records.
• Relief (Section 14): remove the defect, replace the goods, refund the price, pay compensation, grant punitive damages, discontinue unfair trade practices, withdraw hazardous goods, issue corrective advertisement and award costs.
• Section 27 allows it to punish non-compliance with imprisonment of one month to three years, or fine of Rs 2,000 to Rs 10,000, or both.

Appeal (Section 15)

To the State Commission within 30 days, extendable for sufficient cause, on deposit of 50 per cent of the amount ordered or Rs 25,000, whichever is less.

B. State Commission

Composition (Section 16)

A President who is or has been a Judge of a High Court, appointed after consulting the Chief Justice, and not fewer than two other members, one of whom is a woman.

Jurisdiction (Section 17)

• Original: complaints where the value of the goods or services and compensation claimed exceeds Rs 20 lakh but does not exceed Rs 1 crore.
• Appellate: appeals against orders of District Forums within the State.
• Revisional: it may call for the records of any District Forum case and pass orders where the Forum has exercised a jurisdiction not vested in it, failed to exercise one vested in it, or acted illegally or with material irregularity.

Powers

The State Commission has the same powers as the District Forum for procedure, and may transfer cases (Section 17A) and sit in circuit benches (Section 17B). Its orders are appealable to the National Commission within 30 days (Section 19), where the order was made in its original jurisdiction.

Ans: The Consumer Protection Act, 2019 provides for three Consumer Disputes Redressal Commissions, at district, State and national levels, and for mediation cells. (The 1986 Act, now repealed, had called the district body a Forum.)

1. District Commission

• Composition: established by the State Government in each district. It consists of a President and not fewer than two members (Section 28).
• Jurisdiction: complaints where the consideration paid does not exceed Rs 1 crore (Section 34(1)). The Central Government may prescribe another value. The 2021 Rules fix Rs 50 lakh.
• Territorial: where the opposite party resides, works or has a branch office, where the cause of action arises, or where the complainant resides or works for gain (Section 34(2)).
• Powers: admit or reject a complaint within 21 days (Section 36), refer parties to mediation (Section 37), call for evidence, summon and examine witnesses, and test goods in a laboratory (Section 38).
• Relief (Section 39): remove defects, replace goods, return the price with interest, pay compensation including punitive damages, compensation in a product liability action, stop unfair trade practices, withdraw hazardous goods, corrective advertisement, a sum for consumers who are not conveniently identifiable, and costs.

2. State Commission

• Composition: a President and members as prescribed (Sections 42 and 43).
• Jurisdiction (Section 47): complaints where the consideration paid exceeds Rs 1 crore and does not exceed Rs 10 crore (revised to Rs 50 lakh to Rs 2 crore by the 2021 Rules); complaints against unfair contracts up to Rs 10 crore; appeals against District Commission orders; and revision of District Commission cases.
• Appeal: to the National Commission within 30 days (Section 51).

3. National Commission

• Composition: a President and not fewer than four members (Sections 53 and 54).
• Jurisdiction (Section 58): complaints where the consideration exceeds Rs 10 crore (revised to Rs 2 crore by the 2021 Rules); unfair contracts above Rs 10 crore; appeals against State Commission orders and against orders of the Central Authority; and revision of State Commission cases.
• Appeal: to the Supreme Court within 30 days (Section 67).

4. Common powers and functions

• Powers of a civil court for summoning, discovery, evidence on affidavit, and commissions.
• Power to review, and to set aside ex parte orders (Sections 40, 50, 60 and 61).
• Enforcement of orders as decrees of a civil court (Section 71).
• Penalty for non-compliance: imprisonment of one month to three years or fine of Rs 25,000 to Rs 1 lakh, or both (Section 72).
• Two years’ limitation, extendable for sufficient cause (Section 69).

5. Consumer Mediation Cells (Sections 74 to 81)

Attached to each Commission, they conduct mediation if the parties agree. A settlement is recorded and becomes an order of the Commission.

6. Central Consumer Protection Authority (Sections 10 and 18)

It regulates matters concerning violation of consumer rights, unfair trade practices and false or misleading advertisements. It may investigate, order the recall of goods, and impose penalties on endorsers and manufacturers.

Ans: A defendant who has committed a tort is not liable for every loss that follows. The law of remoteness decides which consequences he must pay for. The law developed through three stages.

Stage 1: The test of directness

• Re Polemis and Furness, Withy & Co. (1921): workmen negligently dropped a plank into the hold of a ship. It struck something and caused a spark that ignited petrol vapour. The ship was destroyed.
• The Court of Appeal held that the defendants were liable for all direct consequences of their negligent act, whether foreseeable or not. Some damage had to be foreseeable.

Stage 2: The test of reasonable foreseeability

• Overseas Tankship (UK) v. Morts Dock (The Wagon Mound No. 1) (1961): oil spilled from the defendants’ ship drifted to the plaintiff’s wharf and was set alight by molten metal. The Privy Council held that the defendants were liable only for the kind of damage that was reasonably foreseeable. Fire damage was not foreseeable in the circumstances, as the oil was believed not to ignite on water. Polemis was overruled.
• Overseas Tankship v. Miller Steamship (The Wagon Mound No. 2) (1967): in a similar claim by ship owners, the risk of fire was foreseeable, though slight. The defendants were liable, because a reasonable man would not ignore a real risk when elimination costs nothing.

Stage 3: Refinements

• Hughes v. Lord Advocate (1963): workmen left a paraffin lamp near an open manhole. A boy knocked it in, an unusual explosion followed, and he was burned. The harm was of a kind foreseeable (burns from the lamp), though the manner was not. The defendants were liable.
• Doughty v. Turner Manufacturing (1964): an asbestos cover slid into a cauldron of molten liquid and caused an eruption. Burns by splashing were foreseeable, but an eruption through a chemical reaction was not. The defendants were not liable.
• Smith v. Leech Brain (1962): a burn on a workman’s lip caused cancer because of a pre-existing condition. The defendants were liable for the whole harm, since they must take the victim as they find him (the thin skull rule).
• Bradford v. Robinson Rentals (1967): the type of harm (cold injury) was foreseeable, though the extent was greater than expected.

Indian position

Indian courts follow the foreseeability test in negligence, with the thin skull rule. For strict liability, the harm must also be foreseeable (Cambridge Water (1994)). Under absolute liability, the enterprise is liable for all harm from the hazardous activity (M.C. Mehta v. Union of India (1987)).

Comparison

• Polemis: all direct consequences, even if unforeseeable.
• Wagon Mound: only the foreseeable kind of damage.
• Present rule: the kind of harm must be foreseeable, not the exact manner or extent.

Ans: The two theories answer the question whether the law of tort is one general law of liability for harm, or a set of separate named wrongs.

Winfield: “the law of tort” (general principle theory)

• Winfield said that there is a general principle of liability: whoever causes harm to another by breaching a duty fixed by law is liable, unless there is a justification or excuse.
• Tort law is therefore a single law, with the specific named torts as examples of that principle.
• New torts can be recognised when a new situation fits the principle. Courts can therefore develop the law to meet social needs.
• Support: Donoghue v. Stevenson (1932) found a new duty of care. Rylands v. Fletcher (1868) and Hedley Byrne v. Heller (1964) expanded liability. In India, M.C. Mehta v. Union of India (1987) created absolute liability.

Salmond: “the law of torts” (pigeon-hole theory)

• Salmond said that there is no general law of tort but only a set of specific torts. The plaintiff must bring his case within one of the named wrongs, such as trespass, nuisance, defamation or negligence.
• It is likened to pigeon-holes. If the plaintiff’s case does not fit into a hole, he has no remedy, however much he has suffered.
• The list is fixed, and new torts can be added only slowly.
• Support: Bradford Corporation v. Pickles (1895) and Mogul Steamship v. McGregor Gow (1892): harm without breach of a recognised right is not actionable. Ashby v. White (1703) also shows that a recognised right is needed.

Points of difference

• Nature: one law of tort (Winfield) or many laws of torts (Salmond).
• Test: breach of a duty fixed by law, causing harm (Winfield); fitting into a named tort (Salmond).
• Flexibility: Winfield’s theory allows new wrongs. Salmond’s is rigid.
• Plaintiff’s position: under Winfield, a plaintiff who shows an unjustified harm can succeed. Under Salmond, he must find a matching tort.
• Effect on the courts: Winfield’s view gives the courts more creative power. Salmond’s is more certain.

Present position

The law has moved between the two. Many new torts and duties, including negligent misstatement, nervous shock, privacy and absolute liability, have been recognised, which supports Winfield. At the same time, courts insist that a plaintiff identify a recognised cause of action, which is closer to Salmond. A modern view is that each theory is partly right.