law of contract question paper

law of torts - sem V

Law on Torts (part-1)

Law on Tort 

Definition of Tort-

 Tort derived from the Latin word ‘tortum’, which means ‘to twist’. It includes that conduct which is not straight or lawful. It is equivalent to the English term ‘wrong’.

Salmond- It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligation.

We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere branch of contract or breach of trust.

 Distinction between Tort and crime-

Tort	Crime
i) Less serious wrongs are considered as private wrongs and have been labelled as civil wrong.	i) More serious wrongs have been considered to be public wrongs and are known as crimes.
ii) The suit is filed by the injured person himself.	ii) The case is brought by the state.
iii) Compromise is always possible.	iii) Except in certain cases, compromise is not possible.
iv) the wrongdoers pays compensation to the injured party.	iv) The wrongdoer is punished.

 

Distinction between Tort and breach of contract-

Breach of contract	Tort
i) It results from breach of a duty undertaken by the parties themselves.	i) It occurs from the breach of such duties which are not undertaken by the parties but which are imposed by law.
ii) In contract, each party owes duty to the other.	ii) Duties imposed by law of torts are not towards any specific individual but towards the world at large.
iii) Damage of contract is liquidated.	iii) Damage of tort is unliquidated.
iv) It provides limited remedy	iv) It provides unlimited remedy.

Distinction between Tort and Breach of trust-

Tort	Breach of Trust
i) Damage of tort is unliquidated.	i) Damage of breach of trust is liquidated.
ii) Law of tort was part of common law.	ii) Law of trust was part of Court of Chancery.
iii) Tort is partly related to the law of property.	iii) Trust is a branch of law of property.

Latin terms and maxims-

Causa causans- An immediate and effective cause.

Causa sine quanon- A necessary cause; the cause without which the thing cannot be or the event would not have occurred.

Some preceding link but for which the causa causans, that is, the immediate cause could not have become operative.

East India Commercial Co. v. Collector of Customs, AIR 1962-

Municipal Board v. State Transport Authority, AIR, 1965-

Prem Bus Service v. R.T.A, AIR 1968-

Chockalingam v. C.I.T, AIR, 1963-

Inayatullah v. Custodian, Evacuee Property, AIR, 1958-

Volenti non fit injuria- There is no injury to one who consents.

Hall v. Brooklands Auto Racing Club- The plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable.

Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same.

It was held that neither the driver nor his master could be made liable, first, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.

Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the horses’ course and there he was seriously injured by the galloping horse. The horse in question won the competition. It was held that since the defendants had taken due care, they were not liable. The duty of the defendants was the duty of care rather than duty of skill.

Ex turpi causa non oritur actio – No action arises from a wrongful consideration.

Hardy v. Motor Insurers’ Bureau- This was a case where a security officer was dragged along when he tried to stop a car. Lord Denning MR said: ‘no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it… It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim.’

Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first instance, the defendant successfully raised the defence of ex turpi to avoid the claim.

Damnum sine injuria – Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque injuria.

There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it.

Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them.

Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendant had by lawful means acted to protect and extend their profits.

Ushaben v. Bhagyalaxmi Chitra Mandir – The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected.

Action v. Blundell – The defendants by digging a coal pit intercepted the water which affected the plaintiff’s well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: “The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbour’s well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action.

Injuria sine damno- This maxim means injury without damage. Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon another’s land is actionable even though it has done the plaintiff not the slightest harm.

Ashby v. White –

Bhim Singh v. State of J & K – The petitioner, an MLA, of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. He was not produced before the Magistrate within the requisite period. As a consequence of this, the member wad deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right guaranteed under the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to 50,000 were awarded to him.

More……………………………………………………………

Terminologies

Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse.

In its legal sense it means a wrongful act done intentionally without just cause or excuse.

Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types:

i) Malice in fact

ii) Malice in law

Malice in fact – Means an actual malicious intention on the part of the person who has done the wrongful act. It is also called express or actual malice.

Malice in law – It is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.

Motive – Motive is that which incites or stimulates a person to do an act. It is the moving power which impels to action for a definite result.

Motive is mainspring of human action. It is cause or reason. It is something which prompts a man to form an intention.

Intention – A settled direction of the mind towards the doing of a certain act; that upon which the mind is set or which it wishes to express or achieve; the willingness to bring about something planned or foreseen.

Injury- In legal parlance, ‘injury’ means any wrong or damage done to another, either in his person, rights, reputation or property.

Meaning under Penal Code, 1860 (section 44) – the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.

Hurt – Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Malfeasance – it is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or has contracted not, to do.

The word ‘malfeasance’ would apply to a case where an act prohibited by law is done by a person. (Khairul Bahsar v. Thana Lal AIR 1957)

Misfeasance – Unlawful use of power; wrongful performance of a normally legal act; injurious exercise of lawful authority; official misconduct; breach of law.

The word ‘misfeasance’ would apply to a case where a lawful act is done in an improper manner.

Nonfeasance - Non performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty.

Nonfeasance would apply to a case where a person omits to do some act prescribed by law.

Distinction between ‘Misfeasance’, ‘nonfeasance’ and ‘malfeasance’ – Misfeasance is the improper doing of an act which a person may wilfully do. Nonfeasance means the omission of an act which a person ought to do. Malfeasance is the doing of an act which a person ought not to do at all.

Remedies

Remedies are of two types- (i) judicial and (ii) extra-judicial.

Judicial remedy is of three types:

(i) Damages, (ii) Injunction and (iii) Restitution of property

Types of damages -

a)   Exemplary or Vindictive damages – are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice etc.

b)   Ordinary or Real damages – are compensation for general damage. General damages are those which the law implies in every breach of contract and in every violation of a legal right.

c)   Nominal damages – They are awarded for the vindication of a right where no real loss or injury can be proved.

d)   Contemptuous damages - 

Injunction- A judicial process operating in personam, and requiring a person to whom it is directed to do or refrain from doing a particular thing. Law as to the injunction is contained in the Specific Relief Act 1963 and the CPC 1908. Types of injunction –

(i)   Mandatory – When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach (s. 55 of the Specific Relief Act, 1877).

(ii) Permanent or perpetual – By perpetual injunction a defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff (s. 53, the Specific Relief Act, 1877).

 (iii) Temporary – Temporary injunction is such as is to continue until a specified time, or until the further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877; CPC Order XXXIX Rule 1.

(iv) Ad-interim -  

Restitution of property – Restitution means restoration of anything to its rightful owner.

Extra-judicial remedies are-

i)    Self defence – The use of force to protect oneself, one’s family, or one’s property from a real or threatened attack.

ii)   Expulsion of trespassers – Forcibly evicting the trespasser.

iii)  Reception of chattels – Chattel means movable or transferable property; personal property.

iv)  Re-entry of land –

v)   Abatement of nuisance – Abatement is the act of eliminating or nullifying; the act of lessening or moderating.

vi)  Distress damage feasant – the right to seize animals or inanimate chattels that are damaging or encumbering land and to keep them as security until the owner pays compensation.

Who may sue and who may be sued

Every person can sue in case of tort including the minor with the consent of his guardian or the court.

The following persons cannot sue-

i)    Citizen of foreign state – If a citizen of foreign country wants to file a suit against a Bangladeshi or a other citizen of foreign country, he has to file an application to the Home Ministry through the Law Ministry (s. 83 of CPC)

ii)   Alien enemy – Every person residing in a foreign country the Government of which is at war with, or engaged in military operations against Bangladesh and carrying on business without a license will be regarded as an alien enemy.

      Alien enemies residing in Bangladesh with the permission of the Government, and alien friends may sue. No alien enemy residing in Bangladesh without such permission or residing in a foreign country shall sue (s. 83 of CPC)

iii) Foreign state – A foreign state cannot sue unless it is recognized by the Government.

vi)  Bankrupt – The guiding law in this regard is the Bankruptcy Act, 1997. If a person is declared insolvent, his properties are taken over and a ‘receiver’ is appointed as the supervisor of that property. A bankrupt cannot sue as long as civil wrongs are concerned.

v)   Felons/Convicts – Felon is a person who has been proven guilty and declared with punishment but fled away. Convict is a person who has been proven guilty but has not fled away.

      A felon cannot file a suit. But a convict can file a suit.

vi) Corporation – A corporation gets a legal entity when it is registered. No unregistered corporation can file a suit.

vii) Child in mother’s womb – This is called ‘pre-natal injuries’.

      Walker v. G.N. Ry. Co. of Ireland – the plaintiff, a child, sued the railway company for damages on the ground that he had been born crippled and deformed because the injury was caused to it (before birth) by an accident due to railway’s negligence, when the plaintiff’s pregnant mother travelled on the defendant’s railway. It was held that the defendants were not liable for two reasons. Firstly, the defendants did not owe any duty to the plaintiff as they did not know about his existence; secondly, the medical evidence to prove the plaintiff’s claim was very uncertain.

      Montreal Tramways v. Leveille – The Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to its mother by the negligence of the defendants.

      Majority of the writers are in favour of the view that an action for pre-natal injuries should also be recognized, once that the act of the defendant is considered to be tortious.

 Who may not be sued -

i)    President/head of the state – According to Article 51(1) and 51(2) of the Constitution, no civil or criminal suit can be filed against the President as long he is holding the post of the President.

ii)   Foreign sovereign – No suit can be filed against a foreign sovereign unless a consent to the same is obtained from that sovereign (s. 86 & 87).

iii) Ambassador / High Commissioners – High Commission is an embassy from one commonwealth country to another.

iv) Public servants – The list of the public servants are given in s. 21, 13 & 14 of the Penal Code, 1860. Also who are appointed through PSC are to be regarded as public servants.

      An application for consent from the Government is required before filing a suit against them.

v)   Corporation – Unless it is a registered corporation, a suit cannot be filed against it.

vi)  Infant / Minor – According to the Penal Code, a minor is a child of 9 – 12 years. But age of the minor varies in various Statues.

vii)                                                                                                 Unsound mind – There are various Act for lunatics and unsound minds, e.g. the Lunacy Act, 1912.

 Negligence

 Essentials of negligence-

i) The defendant owes a duty of care to the plaintiff;

ii) The defendant made a breach of that duty; and

iii) The plaintiff suffered damage as a consequence thereof.

 i) The defendant owes a duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such duty. It depends in each case whether a duty exists.

Donoghue v. Stevenson – A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation. The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty.

Palsgraaf v. Long Island Railroad Co. – The plaintiff with a package was trying to board a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo CJ said, the conduct of the defendant’s servant was not wrong. Relatively to her it was not negligence at all.

Duty depends on reasonable foreseeability of injury

If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.

No liability when injury is not foreseeable

Glasgow Corp. v. Muir – The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event.

Reasonable foreseeability does not mean remote possibility

Bolton v. Stone – A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway. This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence.

Duty of care – Booker v. Wenborn (1962) - The defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform.

ii) Breach of duty – Breach of duty means non-observance of due care which is required in a particular situation. The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc. are offered.

(a) The importance of the object to be attained –

 K. Nagireddi v. Government of Andhra Pradesh – Due to construction of a canal by the state government, all the trees of the plaintiff’s orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government.

(b) The magnitude of risk –

Kerala State Electricity Board v. Suresh Kumar – A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.

(c) The amount of consideration for which services, etc. are offered –

Klaus Mittelbachert v. East India Hotels Ltd. – the question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available.

iii) The plaintiff suffered damage – It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.

Res ipsa loquitur- It means ‘the things itself speaks’. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant.

Hambrook v. Stokes Bors. – Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street. When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable.

Dickson v. Reuter –

Contributory negligence

When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm.

Rural Transport Service v. Bezlum Bibi (1980) – The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus.

Yoginder Paul Chowdhury v. Durgadas (1972) – The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence.

Doctrine of alternative danger –

There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.

Jones v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover.

Shayam Sunder v. State of Rajasthan (1974) – Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died. The defendants were held liable.

Negligence in our laws

The Penal Code, 1860 –

s. 284 – If anyone has custody of poisonous substance and fails to guard against probable danger is punishable with 6 month or 1000 taka or with both.

s. 285 - If anyone acts rashly or negligently to endanger human life with fire or combustible substance is punishable with 6 month or 1000 taka or with both.

s. 286 – If anyone acts rashly or negligently to endanger human life with explosive substance is punishable with 6 month or 1000 taka or with both.

s. 287 – If anyone acts rashly or negligently to endanger human life with any machinery is punishable with 6 month or 1000 taka or with both.

s. 288 – If anyone in pulling down or repairing any building knowingly or negligently omits to guard against probable danger to human life, he will be punishable with 6 months or 1000 taka or with both.

s. 289 – If anyone knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life or any probable danger or grievous hurt from such animal, shall be punished with 6 months or 1000 taka or with both.

 

Law on Torts (part-2)

Law on Torts

Defamation

 Defamation is injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and if possible, more valuable, than other property (Dixon v. Holden, 1869).

s. 499 of the Penal Code- Whoever by words either spoken or by visible representations, makes or publishes any imputation concerning any person intending to harm  the reputation of him, except in the cases hereinafter excepted, to defame that person.

 Ten exceptions-

1. Imputation of truth which public good requires to be made or published-

2. Public conduct of public servants-

3. Conduct of any person touching any public question-

4. Publication of reports of proceedings of Courts-

5. Merits of case decided in Court or conduct of witnesses and others concerned-

6. Merits of public performance-

7. Censure passed in good faith by person having lawful authority over another-

8. Accusation preferred in good faith to authorized person-

9. Importation made in good faith by person for protection of his or other’s interests-

10. Caution intended for good of person to whom conveyed or for public good-

 

s. 500- Punishment for defamation- two years or fine or both.

s. 501- Printing or engraving matter known to be defamatory- Whoever prints or engraves any matter, knowing that to be defamatory of any person, shall be punished with two years or fine or both.

s. 502- Sale of printed or engraved substance containing defamatory matter- Whoever sells or offers for sale any printed substance containing defamatory matter knowingly, shall be punished with two years or fine or both.

Classification of defamation

Defamation is of two types- libel and slander. Distinction between the two is-

Libel	Slander
It is written	It is oral
It is permanent	It is temporary
It is both tort and offence	It is only tort
It is actionable per se	It is not actionable per se
Intention is easier to prove	Intention is not that easy to prove.

Essential elements of defamation-

i) The statement must be defamatory

ii) The said statement must refer to the plaintiff

iii) The statement must be published

iv) The statement must be passed by the defendant

Explanation-

i) The statement must be defamatory-

Defamatory statement is one which tends to injure the reputation of the plaintiff. Whether a statement is defamatory or not depends upon how the right thinking members of the society are likely to take it.

D.P. Choudhury v. Manjulata (1997)- There was publication of a statement in a local daily in Jodhpur that Manjulata went out of her house on the earlier night at 11 p.m. on the pretext of attending night classes and ran away with a boy named Kamlesh. She belonged to a well educated family and was herself also a student of B.A class. She was 17 years of age. The news item was untrue and had been published with utter irresponsibility and without any justification. Such publication had resulted in her being ridiculed and affected her marriage prospects. The statement being defamatory, the defendants were held liable.

The Innuendo

A statement may prima facie be innocent but because of some latent or secondary meaning, it may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or the secondary meaning, i.e. innuendo.

Intention to defame is not necessary- When the words are considered to be defamatory by the persons to whom the statement is published, it is immaterial that the defendants did not know of the facts, is considered to be defamatory.

Cassidy v. Daily Mirror Newspapers Ltd.- Mr. Cassidy was married to a lady who called herself Mrs. Cassidy. The defendants published in their newspapers a photograph of Mr. Cassidy and Miss ‘X’ with the following words underneath: ‘Mr. M. Cassidy, the race horse owner, and Miss ‘X’, whose engagement has been announced’. Mrs. Cassidy sued the defendants for libel alleging that the innuendo was that Mr. Cassidy was not her husband and he lived with her in immoral cohabitation. The Court of Appeal held that the innuendo was established.

ii) The statement must refer to the plaintiff-

In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to him. It is immaterial that the defendant did not intend to defame the plaintiff.

Newstead v. London Express Newspapers Ltd.- the defendants published an article stating that ‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for defamation was brought by another Harold Newstead, a Camberwell barber. As the words were considered to be understood as referring to the plaintiff, the defendants were held liable.

iii) the statement must be published-

Publication means making the defamatory matter known to some person other than the person defamed, and unless that is done, no action for defamation lies.

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

iv) the statement must be passed by the defendant

Defences:

The defences to an action for defamation are-

1. Justification of truth

2. Fair comment

3. Privilege which may be either absolute or qualified.

1. Justification of truth-

In a civil action for defamation, truth of the defamatory matter is complete defence. Under the Penal Code, merely proving that the statement was true is no defence. Section 499 requires that besides being true, the imputation must be shown to have been made for public good.

2. Fair comment-

For this defence it is required:

a) It must be a comment i.e. an expression of opinion

b) the comment must be fair

c) the matter commented upon must be of public interest.

3. Privilege is of two types: (a) Absolute privilege and (b) Qualified privilege

(a) Absolute privilege-

i) Parliamentary proceedings- Art. 78(3) of the Constitution states, a member of Parliament shall not be liable in any Court in respect of anything said, or any vote given, by him in Parliament or in any committee thereof.

ii) Judicial proceedings-

iii) State communications-

(b) Qualified privilege- in certain cases, the defence of qualified privilege is also available. To avail this defence, the defendant has to prove the following two points:

i) the statement was made on a privileged occasion, i.e. it was in discharge of duty or protection of an interest

ii) the statement was made without any malice.

Trespass

Trespass is of two types: (i) Trespass to body, ii) Trespass to land

Trespass to land or property

Trespass to land means interference with the possession of land without lawful justification. In trespass, the interference with the possession is direct and through some tangible object.

Trespass is a wrong against possession rather than ownership. Therefore, a person in actual possession can bring an action even though, against the true owner, his possession was wrongful.

Remedies: both judicial and extra judicial. Extra judicial remedies are:

i) Re-entry

ii) Action for ejectment

iii) Action for mesne profit

iv) Distress damage pheasant- to seize trespassing cattle until compensation has been paid.

Judicial remedies are mentioned in s. 297 and 441-462 of the Penal Code, 1860:

s. 297- Trespassing on burial places with intention of wounding the feelings of any person or insulting the religion- 1 year, fine, both.

s. 441- Criminal trespass- whoever enters other’s land to commit an offence or to intimidate, insult or annoy.

s. 442- House trespass- Whoever commits criminal trespass by entering into any building, vessel or tent.

s. 443- Lurking house trespass- Whoever commits house trespass having taking precautions to conceal such trespass from the owner.

s. 444- Lurking house trespass by night- Whoever commits lurking house trespass after sunset and before sunrise.

s. 445- House breaking- Whoever enters into a house by making a passage, or with the help of the abettor, or by opening any lock etc.

s. 446- House breaking by night- after sunset and before sunrise.

s. 447- Punishment for criminal trespass- 3 months, 500 taka, both.

s. 448- Punishment for house trespass- 1 year, 1000 taka, both

s. 449- House trespass in order to commit offence punishable with death- imprisonment for life, or rigorous 10 years, also fine.

s. 450- House trespass in order to commit offence punishable with imprisonment for life- 10 years, also fine.

s. 451- House trespass in order to commit offence punishable with imprisonment- 2 years, also fine.

If for committing theft- 7 years.

s. 452- House trespass after preparation for hurt, assault or wrongful restraint- 7 years, also fine.

s. 453- Punishment for lurking house-trespass or house breaking- 2 years, also fine.

s. 454- Lurking house trespass or house breaking in order to commit offence punishable with imprisonment- 3 years, also fine. If for committing theft- 10 years.

s. 455- Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint- 10 years, also fine.

s. 456- Punishment for lurking house-trespass or house-breaking by night- 3 years, also fine.

s. 457- Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment- 5 years, also fine. If for committing theft- 14 years.

s. 458- Lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint- 14 years, also fine.

s. 459- Grievous hurt caused whilst committing lurking house-trespass or house-breaking- imprisonment for life, also fine.

s. 460- All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them- for life, also fine.

s. 461- Dishonestly breaking open receptacle containing property- 2 years, fine, both.

Trespass to goods: It means direct physical interference with the goods, which are n the plaintiff’s possession, without lawful justification. Throwing stones on a car, shooting birds, beating animals or infecting them with disease or chasing animals to make them run away from its owner’s possession are examples of trespass to goods. Trespass to goods are actionable per se.

Liability

Liability is of two types: (i) Absolute or strict, and (ii) Vicarious.

(i) Absolute or strict liability- Sometimes a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause the harm, or sometimes he may even have made some positive efforts to avert the same.

In Rylands v. Fletcher, 1868, the House of Lords laid down the rule recognizing ‘no fault’ liability. The liability recognized was ‘strict liability’, i.e. even if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm or he was careful, he could still be made liable under the rule.

Facts of the case- the defendants got a reservoir constructed, through independent contractors, over his land for providing water to his mill. There were old disused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal-mines on the adjoining land. The defendant did not know of the shafts and had not been negligent although the independent contractors had been. Even though the defendant had not been negligent, he was held liable.

(ii) Vicarious liability- In certain cases, a person is held liable for the act of another person. The common example of such liability are-

a) Liability of the principal for the tort of his agent

b) Liability of partners of each other’s tort

c) Liability of the master for the tort of his servant

a) Principal and agent- Where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorized it. It is based on the general principle ‘Qui facit per alium facit per se’ which means that the act of an agent is the act of the principal. For any act authorized by the principal and done by the agent both of them are liable.

Lloyd v. Grace, Smith & Co. – Mrs. Lloyd, who owned two cottages but was not satisfied with the income therefrom, approached the office of Grace, Smith & Co., a firm of solicitors, to consult them about the matter of her property. The managing clerk of the company attended her and advised her to sell the two cottages and invest the money in a better way. She was asked to sign two documents, which were supposed to be sale deeds. In fact, the documents got signed were gift deeds in the name of the managing clerk himself. He had acted solely for his personal benefit and without the knowledge of his principal. It was held that since the agent was acting in the course of his authority, the principal was liable for the fraud.

b) Partners- The relationship as between partners is that of principal and agent. The rules of the law of agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of the business of the firm, all other partners are liable to the same extent as the guilty partner.

Hamlyn v. Houston & Co.- One of the two partners  of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a breach of contract with his employer (plaintiff) by divulging secrets of the firm were liable for this wrongful act committed by only one of them.

c) Master and servant- A servant is a person employed by another to do work under the directions and control of his master. If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of course, is also liable. The doctrine of liability of the master for act of his servant is based on the maxim ‘respondeat superior’, which means ‘let the principal be liable’.

For the liability of the master to arise, the following two essentials are to be present:

i) the tort was committed by the ‘servant’;

ii) the servant committed the tort in the ‘course of his employment’.

Nuisance

Nuisance is a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. The interference may be any way, e.g. noise, vibration, heat, smoke, smell, fumes, water, gas, electricity or disease producing germs.

Nuisance is distinguished from trespass-

Trespass	Nuisance
Interference is direct.	Interference is consequential.
It is interference with a person’s possession of land.	It is interference with a person’s use of land.
The interference is always through some material or tangible objects.	Nuisance can be committed through the medium of intangible objects.
Trespass is actionable per se.	Special damage has to be proved in order to obtain remedy.

Nuisance is of two types:

(i) Public or common nuisance (ii) Private nuisance, or tort of nuisance

i) Public Nuisance

Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is interference with the right of public in general and is punishable as an offence. For example, obstructing a public way by digging a trench. Such obstruction may cause inconvenience to many persons but none can be allowed to bring a civil action for that.

ii) Private nuisance

To constitute the tort of nuisance, the following essentials are required to be proved:

a) unreasonable interference

b) Interference is with the use of enjoyment of land

c) Damage

a) unreasonable interference-  Interference may cause damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in the enjoyment of property. Every interference is not a nuisance. To constitute nuisance, the interference should be unreasonable. Ushaben v. Bhagya Laxmi Chitra Mandir.

b) Interference with the use or enjoyment of land- Interference may cause either: (i) injury to the property itself, or (2) injury to comfort or health of occupants of certain property.

c) Damage- Unlike trespass, which is actionable per se, actual damage is required to be proved in an action for nuisance.

Fay v. Prentice- a cornice of the defendant’s house projected over the plaintiff’s garden. It was held that the mere fact that the cornice projected over the plaintiff’s garden raises a presumption of fall of rain water into and damage to the garden and the same need not be proved. It was a nuisance. In private nuisance, although damage is one of the essentials, the law often presume it.

 Difference between public nuisance and private nuisance-

Public nuisance	Private nuisance
It is a crime.	It is a civil wrong
It is interference with the right of public in general.	It is interference with the right of an individual or few persons
None is allowed to bring a civil action against it.	The person whose right is interfered with can bring a civil action against it.

 Defence

 i. Prescriptive right to commit nuisance- A right to do an act, which would otherwise be a nuisance, may be acquired by prescription. If a person has continued with an activity on the land of another person for 12 years or more, he acquires a legal right by prescription, to continue therewith in future also. This right is called easement right.

ii. Statutory authority- An act done under the authority of a statute  is a complete defence. Thus, a railway company authorized to run railway trains on a track is not liable if, in spite of due care, the sparks from the engine set fire to the adjoining property, or the value of the adjoining property is depreciated by the noise, vibrations and smoke by the running of trains.

Provisions of nuisance in the Penal Code

There are 11 types of nuisance mentioned in s. 268 – s. 294A.

s. 268- Public nuisance- A person is guilty of public nuisance whose act or omission causes common injury danger or annoyance to the public. A common nuisance is not excused on the ground that it cause some convenience or advantage.

s. 269- Negligent act likely to spread infection of disease dangerous to life- Whoever spreads any infection of disease negligently or unlawfully- 6 months, fine, both.

s. 270- Malignant act likely to spread infection of disease dangerous to life- Whoever malignantly does any act to spread the infection of any disease dangerous to life- 2 years, fine, both.

s. 271- Disobedience to quarantine rule- 6 months, fine, both.

s. 272- Adulteration of food or drink intended for sale- 6 months, 1000 taka, both.

s. 273- Sale of noxious food or drink- Whoever sells, offers or exposes for sale which has become noxious (poisonous or harmful)- 6 months, 1000 taka, both.

s. 274- Adulteration of drugs- Whoever adulterates any drug to lessen the efficiency or makes it noxious that it shall be sold or used- 6 months, 1000 taka, both.

s. 275- Sale of adulterated drugs- 6 months, 1000 taka, both.

s. 276- Sale of drug as a different drug or preparation- Whoever sells or issues from a dispensary  for medical purposes any drug as a different drug or medical preparation- 6 months, 1000 taka, both.

s. 277- Fouling water of public spring or reservoir- 3 months, 500 taka, both.

s. 278- Making atmosphere noxious to health- 500 taka.

s. 279- Rush driving or riding on a public way- Whoever drives in a manner so rash or negligent as to endanger human life, or to cause hurt or injury to others- 3 years, 1000-5000 taka, both.

s. 280- Rash navigation of vessel- 6 months, 1000 taka, both.

s. 281- Exhibition of false light, mark or buoy- Whoever exhibits any false light, mark or buoy, intending that such exhibition will mislead any navigator- 7 years, fine, both.

s. 282- Conveying person by water for hire in unsafe or overloaded vessel- 6 months, 1000 taka, both.

s. 283- Danger or obstruction in public way or line of navigation- 200 taka.

s. 284- Negligent conduct with respect to poisonous substance- 6 months, 1000 taka, both.

s. 285- Negligent conduct with respect to fire or combustible matter- 6 months, 1000 taka, both.

s. 286- Negligent conduct with respect to explosive substance- 6 months, 1000 taka, both.

s. 287- Negligent conduct with respect to machinery- 6 months, 1000 taka, both.

s. 288- Negligent conduct with respect to pulling down or repairing buildings- 6 months, 1000 taka, both.

s. 289- Negligent conduct with respect to animal- 6 months, 1000 taka, both.

s. 290- Punishment for public nuisance in case not otherwise provided for- Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with 200 taka.

s. 291- Continuance of nuisance after injunction to discontinue- Whoever repeats or continues a public nuisance, having been enjoined by any public servant who has lawful authority to issue such injunction not to repeat such nuisance- 6 months, fine, both.

s. 292- Sale, etc. of obscene books, etc- 3 months, fine, both.

s. 293- Sale, etc of obscene objects to young person- under the age of 21 years- 6 months, fine, both.

s. 294- Obscene acts and songs- Whoever to the annoyance of the others does any obscene act in public place or sings, recites or utters obscene songs near any public place- 3 months, fine, both.

s. 294A- Keeping lottery office- 6 months, fine, both.

http://notes-law.blogspot.in/2008/08/law-on-torts-part-2.html