Law of Torts, Motor Accident Claims and Consumer Protection Notes | B.A. LL.B. (Five Year Course) Semester 5 | Mumbai University | munotes

The three classical definitions

The English writers whose definitions MU expects a student to know are Salmond, Winfield and Fraser. Each is trying to answer a slightly different question, which is why they read differently.

Salmond defined a tort as a civil wrong whose remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of some other merely equitable obligation. Salmond is describing the remedy: what makes a wrong a tort is that the court can be asked for damages it fixes itself.

Winfield defined tortious liability as liability arising from the breach of a duty primarily fixed by law, where the duty is towards persons generally and its breach is redressible by an action for unliquidated damages. Winfield is describing the duty: where the duty comes from, and to whom it is owed.

Fraser defined a tort as an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party. Fraser is describing the right: a right in rem is a right good against the world at large, as against a right in personam, which is good only against a particular person.

Put together, the three say the same thing from three sides. The duty is imposed by law, the right it protects is available against everybody, and the remedy is damages the court assesses.

The words in those definitions, explained

Unliquidated damages means a sum of money that has not been fixed in advance and that the court works out for itself. If a taxi knocks you down, no document anywhere says what your broken leg is worth; the judge decides. Liquidated damages, by contrast, are a sum already agreed or already ascertainable, which is what a contract or a promissory note produces.

Right in rem means a right available against persons generally: your right not to be assaulted is good against every person in the world. Right in personam means a right available against a definite person only: your right to be paid under a contract is good against the other party to it and nobody else.

A duty primarily fixed by law means a duty you never agreed to and cannot negotiate away in advance. Nobody signs an agreement not to be run over. The law imposes on every driver a duty of care towards every road user, and that duty exists before any relationship between the parties does.

A common law action means a suit in an ordinary civil court asking for damages, as against a remedy that only equity gave, such as an injunction or specific performance. In India the distinction between law and equity was never adopted as a separate court structure, so the phrase matters only as history.

The three essentials of a tort

A wrong is a tort when three things are true together. If any one of them is missing there is no tort, and most examination problems in this subject are solved by working through these three in order.

1. A wrongful act or omission by the defendant. The defendant must have done something the law forbids, or failed to do something the law required. An omission is a tort only where there was a legal duty to act, not merely a moral one. A stranger who watches a child drown without helping breaks no legal duty; a lifeguard employed to watch that pool does.

2. Legal damage to the plaintiff. The act must cause injuria, which means the violation of a legal right, and not merely loss. This is the whole content of the two maxims damnum sine injuria and injuria sine damno, which have chapters of their own, and it is where students most often go wrong: financial loss is not enough, and absence of loss is not fatal.

3. A legal remedy in the form of an action for damages. The law must give this particular plaintiff an action against this particular defendant, and the ordinary remedy must be damages. Where the only remedy the law provides is something else, a criminal prosecution for example, the wrong is not a tort.

A worked example

Ravi runs a small bakery in Dadar. Two things happen to him in the same week.

Monday. A rival named Suresh opens a better bakery across the road and sells at lower prices. Ravi loses half his customers and a great deal of money.

Thursday. Suresh, walking past, deliberately shoves Ravi in the doorway. Ravi is not hurt at all, is not knocked down and loses not one rupee.

Apply the three essentials. On Monday there is loss but no wrongful act: Suresh is entitled to compete, so no legal right of Ravi's was violated. There is damage without injury, and Ravi has no action. On Thursday there is a wrongful act, the application of force to another without lawful justification, which is the tort of battery. A right of Ravi's, the right to bodily integrity, was violated. There is injury without damage, and Ravi does have an action, though what he recovers may be a token sum.

That reversal is the point of the whole subject. The law of torts protects rights, not wallets.

What it does NOT mean

A tort is not simply "any civil wrong". Breach of contract and breach of trust are civil wrongs too, and both are outside. The definition works by exclusion for exactly that reason.

A tort is not confined to the wrongs that already have names. Battery, nuisance and defamation are named torts, but the list is not closed. Chapter [Law of Tort or Law of Torts] takes that argument in full, and the Supreme Court's creation of absolute liability in 1986 is the Indian proof of it.

A tort is not decided by how much the plaintiff lost. Legal damage, not financial damage, is the second essential. A plaintiff who lost nothing may succeed and a plaintiff who lost everything may fail.

"Tortious liability" is not the same as "criminal liability" merely because the conduct was outrageous. Some torts, such as assault and defamation, are also offences, but the two liabilities are decided in different courts by different standards and neither answers the other.

Quick revision

1. Tortum is Latin for twisted. A tort is a civil wrong.
2. The statutory definition is section 2(m) of the Limitation Act 1963: a civil wrong which is not exclusively the breach of a contract or the breach of a trust.
3. Salmond looks at the remedy, Winfield at the duty, Fraser at the right.
4. Unliquidated damages are fixed by the court, not agreed in advance.
5. A right in rem is good against the world; a right in personam against one person.
6. Three essentials: a wrongful act or omission, legal damage, and a remedy by an action for unliquidated damages.
7. An omission is actionable only where there was a legal duty to act.
8. The same facts may give an action in tort and in contract, and may also be an offence.

Test yourself

1. Define tort and state its essential elements. A tort is a civil wrong arising from the breach of a duty fixed by law and owed to persons generally, redressible by a common law action for unliquidated damages, and not exclusively the breach of a contract, of a trust or of some other merely equitable obligation. Section 2(m) of the Limitation Act 1963 defines it for statutory purposes as a civil wrong which is not exclusively the breach of a contract or the breach of a trust. Its essentials are three: a wrongful act or omission by the defendant, legal damage to the plaintiff, meaning the violation of a legal right and not merely loss, and a legal remedy in the form of an action for damages.

2. Distinguish between liquidated and unliquidated damages, and say why the difference matters in tort. Liquidated damages are a sum fixed in advance by the parties or ascertainable from their agreement, which is what a contract can provide for. Unliquidated damages are not fixed in advance and are assessed by the court after the wrong. The difference matters because the remedy in tort is by definition unliquidated: the parties to a road accident have no agreement, so nothing has been fixed and the court must value the injury itself. It follows that a claim for a sum already agreed is not a claim in tort.

3. "There can be a tort without any loss of money." Is that correct? Yes. The second essential is legal damage, which means injuria, the violation of a legal right, not financial loss. Where a legal right is violated the law presumes damage and the action lies even if the plaintiff is not out of pocket, which is the maxim injuria sine damno. Conversely a plaintiff who suffers heavy loss without any right of his being violated has no action, which is damnum sine injuria. Both have chapters of their own in Module I.

4. Is every omission a tort? No. An omission gives rise to liability only where the law imposed a duty to act. A moral duty is not enough. A passer-by who does nothing to save a drowning child commits no tort, because the law imposed no duty on him. A lifeguard on duty at that pool, a parent in relation to a young child, or an occupier who has invited people onto his premises are all under legal duties, and their failure to act is an omission the law will notice.

5. Why is the definition of a tort framed by exclusion rather than by description? Because the class is open. New torts are recognised as new kinds of harm appear, so any list of them is out of date as soon as it is written; the Supreme Court's creation of absolute liability in 1986 is a recent example. Defining a tort as a civil wrong that is not exclusively a breach of contract or of trust keeps the class open while separating it from the two neighbouring civil wrongs it is most often confused with. Section 2(m) of the Limitation Act 1963 uses exactly this technique.

Why it matters here. Every proposition in MU's topic about the nature of tortious liability is in that passage, stated by the Supreme Court of India rather than by an English textbook writer. It is also the authority for the openness of the subject, which is the argument of chapter [Law of Tort or Law of Torts].

The nature of tortious liability, in five propositions

1. The duty is fixed by law, not by agreement. Nobody consents to the duty not to defame, not to trespass or not to drive carelessly. The law attaches these duties to everyone, and it does so whether or not the parties have ever met. This is the difference that decides most problem questions: ask where the duty came from.

2. The duty is owed to persons generally. A driver owes the duty of care to every road user, not to a list of people. That is why a stranger injured on the road can sue although he had no relationship with the driver at all.

3. The right protected is a right in rem. A right in rem is available against the world at large. Your right to bodily safety, to your reputation and to the quiet enjoyment of your land binds everybody. A right in personam, available against one person only, is what a contract creates.

4. Liability is redressible by an action for unliquidated damages. The court fixes the sum. There are other remedies, injunction and specific restitution among them, and chapter [Judicial Remedies: Damages] deals with all of them, but damages is the characteristic remedy and the definitions are built on it.

5. Liability may rest on fault or may not. Most torts require intention or negligence. Some do not: the rule in Rylands v. Fletcher and the Indian rule of absolute liability make a defendant liable although he took every care. In Jay Laxmi Salt Works the Court itself grouped strict liability, absolute liability and fault liability as forms of tortious liability that have grown over time.

Three words for the kind of wrongful conduct

The older writers, and the older question papers, use three Latin-derived words for the form the defendant's conduct takes. They describe the same requirement of a legal duty from three angles.

• Malfeasance is the doing of an act which is unlawful in itself, and which the person had no right to do at all. A trespass is malfeasance.
• Misfeasance is the improper doing of an act which the person was otherwise entitled to do. A surgeon entitled to operate who operates carelessly commits misfeasance.
• Nonfeasance is the omission of an act which the person was under a duty to do. It is actionable only where the law imposed the duty to act, which is why a stranger who watches a child drown commits no tort while a lifeguard does.

The practical use of the trio is in the law of trespass: chapter [Trespass ab Initio] shows that an authority given by law is destroyed by a subsequent misfeasance but not by a nonfeasance, which is why a man who takes too much wine at an inn is a trespasser from the beginning and one who simply does not pay is not.

The scope of the law of torts

Scope means how far the subject reaches, and it is best answered by listing the interests it protects. A student who can name these five knows the shape of the whole book.

The person. Freedom from physical interference and from the fear of it: battery, assault, mayhem, false imprisonment, and negligence causing injury.

Property. Land and goods: trespass to land, trespass to goods, detinue, conversion and nuisance.

Reputation. Defamation, in its two forms of libel and slander.

Liberty and legal process. False imprisonment, malicious prosecution and the abuse of legal process.

Economic and family interests. Deceit, injurious falsehood, and the wrongs affecting personal relations.

Two further extensions are peculiar to India and both are taught later: the compensation a constitutional court awards for the violation of a fundamental right, which chapter [Constitutional Tort] deals with, and the statutory no-fault schemes under the Motor Vehicles Act 1988 and the Public Liability Insurance Act 1991, which Module IV and chapter [The Public Liability Insurance Act 1991] deal with.

A worked example

Meera parks her scooter outside a shop in Thane. Four things happen in the next ten minutes.

One. A shopkeeper, Anil, shouts an insult at her in front of a crowd, saying she is a thief. That touches her reputation: the tort is defamation, and the interest protected is her standing with other people.

Two. Anil pushes her scooter over. That touches her goods: the tort is trespass to goods, and the interest protected is her possession.

Three. Anil bolts the shop door with her inside for twenty minutes. That touches her liberty: the tort is false imprisonment.

Four. Anil telephones the police falsely accusing her of theft, and she is prosecuted and acquitted. That touches her use of the legal process: the tort is malicious prosecution.

One incident, four interests, four torts. Notice that the duty in each was fixed by law before Meera ever met Anil, that each duty was owed to anybody in Meera's position, and that in each the court would fix the damages itself. That is the nature of tortious liability, and the four different interests are its scope.

Distinctions that carry marks

What it does NOT mean

"Tortious liability is fault liability" is not true without qualification. Strict and absolute liability are both tortious, and both dispense with fault. Jay Laxmi Salt Works names all three as forms of liability in tort.

"The scope of tort is fixed" is not true. The Supreme Court said in terms that the frontiers of the subject cannot be strictly barricaded, and it proved the point in 1986 by creating absolute liability where no such rule existed.

"A tort must cause physical harm" is not true. Reputation, liberty and economic interests are protected, and in some torts no harm at all need be shown.

"A duty in tort can be excluded by a notice" is not true as a general rule. Consent may be a defence on the facts, which chapter [Volenti Non Fit Injuria] examines, but the duty itself is imposed by the law and is not a term the parties settle.

Quick revision

1. Nature: the duty is fixed by law, owed to persons generally, protects a right in rem, and is redressible by an action for unliquidated damages.
2. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: injury and damage are the two basic ingredients; the law of torts is a developing law whose frontiers cannot be strictly barricaded; duty is the primary yardstick.
3. Liability may be fault based, strict or absolute.
4. Scope: interests in person, property, reputation, liberty and legal process, and economic and family relations.
5. India adds two extensions: constitutional compensation, and statutory no-fault schemes.
6. The three-column table of tort, contract and crime is the commonest examination question in Module I.

Test yourself

1. Explain the nature of tortious liability. Tortious liability arises from the breach of a duty primarily fixed by the law rather than by agreement. The duty is owed to persons generally and not to a determinate person, so a stranger may sue. The right it protects is a right in rem, available against the world, as against the right in personam that a contract creates. Its characteristic remedy is a civil action for unliquidated damages, that is, damages the court assesses rather than damages the parties have fixed. Liability may rest on intention or negligence, but need not: strict liability under the rule in Rylands v. Fletcher and the Indian rule of absolute liability are both tortious. The Supreme Court stated all of this in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1.

2. What is the scope of the law of torts? Its scope is measured by the interests it protects: the person, through battery, assault, mayhem, false imprisonment and negligence; property in land and goods, through trespass, nuisance, detinue and conversion; reputation, through defamation; liberty and the legal process, through false imprisonment, malicious prosecution and abuse of process; and economic and family relations, through deceit, injurious falsehood and the wrongs affecting personal relations. In India the scope also takes in compensation awarded by constitutional courts for the violation of fundamental rights, and the statutory no-fault schemes under the Motor Vehicles Act 1988 and the Public Liability Insurance Act 1991.

3. "The law of torts is a developing law." Discuss. The statement is the Supreme Court's own, in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, where the Court held that the frontiers of the subject are incapable of being strictly barricaded and that since duty is the primary yardstick of liability, its ambit keeps widening on the touchstone of fairness and practicality. The proof in India is the creation of absolute liability in M.C. Mehta v. Union of India, AIR 1987 SC 1086, where the Court refused to be confined to a rule evolved in the nineteenth century and said that Indian courts no longer need the crutches of a foreign legal order.

4. Distinguish a right in rem from a right in personam with an example from tort. A right in rem is available against persons generally. A right in personam is available against a definite person. Tort protects rights in rem: the right not to be assaulted binds every person in the world, so a stranger who assaults you is liable although you have no relationship with him. Contract creates rights in personam: if a builder promises to build your house, only he is bound, and a stranger who fails to build it commits no wrong. The distinction explains why privity limits an action in contract and does not limit an action in tort.

5. Is fault essential to liability in tort? No. Most torts require a mental element, intention in trespass and deceit, or want of reasonable care in negligence. But the rule in Rylands v. Fletcher imposes liability for the escape of a dangerous thing brought on to land in a non-natural use, whether or not the defendant was at fault, and the rule of absolute liability laid down in M.C. Mehta v. Union of India, AIR 1987 SC 1086, makes an enterprise carrying on a hazardous activity liable even where it took every possible precaution and even where an exception to Rylands v. Fletcher would have applied. Statutory schemes go further still: section 164 of the Motor Vehicles Act 1988 and section 3 of the Public Liability Insurance Act 1991 both give compensation without any proof of wrongful act, neglect or default.

4. Loss distribution. Modern tort law increasingly places a loss where it can be spread rather than where fault lies. Vicarious liability puts the loss on an employer who can insure and price it into his business. Compulsory motor insurance under Chapter XI of the Motor Vehicles Act 1988 spreads the cost of road accidents over every vehicle owner in the country. The Environment Relief Fund under the Public Liability Insurance Act 1991 does the same for industrial accidents.

5. Appeasement, or the replacement of private vengeance. Historically the action in tort took the place of the blood feud. A person who has been wronged wants something done about it, and the law provides a court instead of a fight. Aggravated and exemplary damages, dealt with in chapter [Kinds of Damages], are the surviving trace of this object.

Where the objects pull against each other

This is the part almost no set of notes carries, and it is what turns a list into an answer.

Compensation pulls against fault. If the object is to compensate the injured, why should it matter whether the defendant was careless? A victim of an unavoidable accident is just as badly hurt as a victim of a careless one. That tension produced the no-fault schemes: section 164 of the Motor Vehicles Act 1988 gives five lakh rupees for a death without any inquiry into fault at all, and section 3 of the Public Liability Insurance Act 1991 does the same for an accident while handling a hazardous substance.

Deterrence pulls against compensation. If the object is to deter, the award should be measured by the defendant's wealth and wickedness. If it is to compensate, it should be measured by the plaintiff's loss and by nothing else. Indian law resolves this in favour of compensation as a rule, and departs from it in the exceptional case of a hazardous enterprise.

Loss distribution pulls against personal responsibility. Where every loss is insured and spread, the careless driver pays nothing himself and the deterrent disappears. That is the standing criticism of compulsory insurance, and it is why the Motor Vehicles Act keeps the insurer's right to recover from the owner in the cases set out in chapter [The Insurer: Duties, Defences and Pay and Recover].

A worked example

A municipal corporation owns an eighty-year-old clock tower on a busy road. It never tests the structure. The tower falls and kills three passers-by.

Ask what each object would do with those facts. Compensation says the families must be paid what the deaths cost them, which is the multiplier calculation in chapter [Computing Just Compensation]. Deterrence says the award must be large enough that this corporation and every other one starts testing its buildings. Vindication adds nothing here, because real loss has been suffered. Loss distribution says the corporation is exactly the right defendant, because it can spread the cost over the ratepayers rather than leave it on three families. Appeasement says the families must have a forum, or they will believe that a public body can kill with impunity.

Those are the facts of Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750.

Facts. The Clock Tower opposite the Town Hall in Chandni Chowk, Delhi, belonging to the Municipal Corporation, collapsed and killed three people. The structure was eighty years old, the mortar in its top storey had a life of forty to forty-five years, and the Corporation had never examined it for latent defects.

Held. The owner of a structure abutting a highway owes a duty to those using the highway to keep it in a safe condition. A properly maintained structure does not ordinarily collapse, so the maxim res ipsa loquitur, the thing speaks for itself, applied and the burden lay on the Corporation to explain the fall. Its failure to test a building long past the life of its materials was negligence, and the decrees for damages were upheld.

Why it matters here. It is the plainest Indian illustration of all five objects working at once, and chapter [Res Ipsa Loquitur] takes the evidential rule further.

Distinctions that carry marks

What it does NOT mean

Compensation does not mean the plaintiff makes a profit. The measure is what he lost, not what the defendant gained, and restitutio in integrum is a ceiling as well as a floor.

Deterrence does not make tort a punishment. Exemplary damages are exceptional. An ordinary award is not a fine, it is not paid to the State, and the defendant's means are usually irrelevant to it.

Vindication does not mean a plaintiff always gets a large sum. A right vindicated without loss is often marked by nominal damages, sometimes a rupee, and the value of the judgment is the declaration, not the money.

Loss distribution does not mean the wrongdoer escapes. An insurer who pays a third party may still recover from the owner where the policy was broken, and an employer who pays for a servant's wrong may in principle claim contribution from the servant.

Quick revision

1. Five objects: compensation, deterrence, vindication of rights, loss distribution, and appeasement.
2. Compensation works by restitutio in integrum: restoration, so far as money can, to the original position.
3. M.C. Mehta v. Union of India, AIR 1987 SC 1086: compensation from a hazardous enterprise must be related to its magnitude and capacity so as to deter.
4. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750: a public body liable for a collapsing structure, the plainest example of the objects at work.
5. Vindication explains why some torts are actionable without proof of loss.
6. Loss distribution explains vicarious liability, compulsory motor insurance and the Environment Relief Fund.
7. The objects conflict, and the no-fault schemes in section 164 of the Motor Vehicles Act 1988 and section 3 of the Public Liability Insurance Act 1991 are where compensation has won over fault.

Test yourself

1. State and explain the objects of the law of torts. There are five. Compensation is the primary object: the injured person is restored, so far as money can do it, to the position he would have occupied but for the wrong, on the principle of restitutio in integrum. Deterrence attaches a price to wrongful conduct so that people take care in advance; the Supreme Court made this explicit in M.C. Mehta v. Union of India, AIR 1987 SC 1086, by tying the award against a hazardous enterprise to its size. Vindication of rights explains the torts actionable without proof of damage, where the object is to declare that a right exists. Loss distribution explains vicarious liability and the compulsory insurance under the Motor Vehicles Act 1988, which spread a loss over those able to bear it. Appeasement is the historical object of replacing private vengeance with an action at law.

2. "The law of torts compensates; it does not punish." Discuss. As a general rule the statement is correct. Damages are measured by the plaintiff's loss and are paid to the plaintiff, not to the State, and the defendant's means are ordinarily irrelevant. There are two qualifications. Exemplary or punitive damages may be awarded in exceptional cases and are avowedly punitive, and in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court held that compensation from a hazardous enterprise must be related to its magnitude and capacity so that the award deters. Both are departures from the compensatory principle and both are treated as exceptional.

3. How do the objects of the law of torts explain the no-fault schemes in Indian law? The compensatory object is concerned with the injured person's loss, and that loss is the same whether or not anybody was at fault. Where the law accepts that reasoning it drops the requirement of fault altogether. Section 164 of the Motor Vehicles Act 1988 makes the owner or insurer liable to pay five lakh rupees for a death and two and a half lakh for grievous hurt, and provides expressly that the claimant need not plead or establish any wrongful act, neglect or default. Section 3 of the Public Liability Insurance Act 1991 does the same for an accident while handling a hazardous substance. Both are also examples of loss distribution, because both are backed by compulsory insurance.

4. Why does the law allow an action where the plaintiff has suffered no loss? Because compensation is not the only object. Where a legal right has been infringed, the object is vindication: a declaration that the right exists and has been broken. If no action lay, a right that nobody could enforce would be no right at all, and the wrongdoer could repeat the infringement at will. The damages awarded may be nominal, and the value of the judgment lies in the finding rather than in the sum. This is the maxim injuria sine damno, which has a chapter of its own.

The theories agree that courts can create new torts. Salmond says a court may make a new pigeon-hole. Winfield says a court may apply the general principle to a new situation. The result is identical.

They disagree about the starting presumption. On Winfield's view the plaintiff who shows harm and no justification has a case to answer. On Salmond's the plaintiff who cannot name his tort loses at the threshold.

Both must live with damnum sine injuria. No writer says that all harm is actionable. A trader ruined by lawful competition has no action on either theory, because the harm was done without infringing any legal right. Chapter [Damnum Sine Injuria] shows how large that limit is, and it cuts Winfield's principle down a long way.

The Indian answer

India does not have to choose between two English writers, because its own Supreme Court has answered the question twice, once in words and once in action.

In words. In Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, the Court held that the law of torts is a developing law whose frontiers are incapable of being strictly barricaded, and that since duty is the primary yardstick of tortious liability, the ambit of that duty keeps widening on the touchstone of fairness and the practicality of the situation. That is Winfield's position stated by an Indian court.

In action. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, oleum gas escaped from a plant of Shriram Foods and Fertiliser Industries in a crowded part of Delhi. The Court had to fix the measure of liability of a hazardous enterprise. It set out the rule in Rylands v. Fletcher and then declined to apply it, holding that a rule evolved in the nineteenth century could not govern a modern industrial economy and that Indian courts need not follow English law. It laid down instead that an enterprise carrying on a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, is absolutely liable for harm caused by an accident in that activity, and cannot rely on any of the exceptions to Rylands v. Fletcher; and it held that the compensation must be related to the size of the enterprise so as to deter.

Why it matters here. A court that creates a rule of liability which exists in no earlier case and in no statute is not working out of a closed list. Whatever the theoretical position, Indian practice is that the categories of tort are never closed.

A worked example

In 2015 a company begins selling a device that copies a rival's manufacturing process. The rival sues. Its complaint fits no named tort: it is not defamation, not deceit, not conversion, not nuisance.

On Salmond's theory the court asks which pigeon-hole this belongs to. Finding none, it dismisses the suit and leaves the rival to Parliament.

On Winfield's theory the court asks whether harm has been done without lawful justification. If it holds that it has, it gives a remedy, and by doing so it creates a new tort, which will thereafter be called by a name.

On the Indian approach the court would begin from the duty: is there a duty here, judged on the touchstone of fairness and the practicality of the situation, as Jay Laxmi Salt Works directs? If the answer is yes, the absence of a name is not fatal. That is Winfield's result reached through Salmond's method.

Distinctions that carry marks

What it does NOT mean

Winfield does not say that all harm is actionable. He says all harm done without lawful justification is. Competition, ordinary use of one's own land and the exercise of a legal right are all justifications, which is why damnum sine injuria is consistent with his theory.

Salmond does not say the law can never grow. He accepts that courts create new pigeon-holes; he denies that there is a general principle waiting to be applied in the meantime.

The debate is not settled by counting torts. Both writers are looking at the same set of cases and disagreeing about what holds them together.

It is not merely academic. It decides what a court does when it meets a harm nobody has litigated before, which is exactly what happened in India in December 1986.

Quick revision

1. Winfield, the wider theory: all harm unless justified is a tort; there is a law of tort.
2. Salmond, the pigeon-hole theory: only specific named wrongs are torts; there is a law of torts.
3. Both accept that courts may create new torts; they differ on the starting presumption.
4. Winfield's evidence is history: every named tort was once new.
5. Salmond's evidence is practice: judgments name a tort.
6. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: the law of torts is a developing law whose frontiers cannot be strictly barricaded.
7. M.C. Mehta v. Union of India, AIR 1987 SC 1086: the Supreme Court created absolute liability, which existed in no earlier case and in no statute.
8. Indian practice: the categories of tort are never closed.

Test yourself

1. "Is there a law of tort or a law of torts?" Discuss with reference to the theories of Winfield and Salmond. Winfield's wider theory holds that all injury to another is a tort unless there is a justification recognised by law, so the subject is a body of principle and the categories are open. Salmond's narrower or pigeon-hole theory holds that there is no general principle, only a set of specific wrongs, and a plaintiff who cannot bring his case within one of them fails however unreasonable the defendant's conduct. Winfield's support is historical, that every named tort was once new; Salmond's is practical, that courts decide cases by naming torts. The difference is narrower than it appears, because Salmond concedes that new pigeon-holes may be created and Winfield concedes that harm caused without infringing a legal right is not actionable, which is damnum sine injuria. In India the question is answered by the Supreme Court: Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, holds that the law of torts is a developing law whose frontiers cannot be strictly barricaded, and M.C. Mehta v. Union of India, AIR 1987 SC 1086, proves it by creating a rule of absolute liability that existed nowhere before.

2. What is the pigeon-hole theory, and what is the strongest objection to it? The pigeon-hole theory is Salmond's: the law provides a set of labelled compartments, each a named tort with its own ingredients, and a plaintiff must place his complaint in one of them. The strongest objection is that it cannot explain how any pigeon-hole ever came into existence. Deceit, the independent tort of negligence, nervous shock and inducing a breach of contract were each new at some point, and each was recognised by a court in a case where the plaintiff could not name an existing tort. If the theory were literally true the first plaintiff in each of those cases would have had to fail.

3. Does the Indian Supreme Court's creation of absolute liability support Winfield or Salmond? It supports Winfield in substance and Salmond in form. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court held that the rule in Rylands v. Fletcher could not govern a modern industrial economy, refused to be bound by English law, and laid down that an enterprise carrying on a hazardous activity is absolutely liable for harm from an accident in it, subject to no exceptions, with compensation measured by the size of the enterprise. In substance that is the general principle at work, because no existing head of liability covered the case. In form it created a new head, which is what Salmond says courts may do. What it cannot be reconciled with is any view that the categories are closed.

Facts. M.C. Mehta v. Union of India, AIR 1987 SC 1086, decided on 20 December 1986. Oleum gas escaped from a unit of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi. Applications for compensation were made in a public interest petition already pending about the same plant, and the Court had to decide the measure of liability of an enterprise carrying on a hazardous or inherently dangerous industry when an accident in it kills or injures people.

Held. The Court set out the rule in Rylands v. Fletcher, including its requirement of a non-natural use of land and its exceptions, and then declined to apply it. It held that a rule evolved in the nineteenth century, before the industrial developments in question, could not guide a modern economy; that law must grow to meet new situations; and, in terms, that Indian courts cannot allow their judicial thinking to be constricted by the law as it prevails in England or in any other foreign country, because India no longer needs the crutches of a foreign legal order. It laid down that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, is absolutely liable to compensate all those affected by an accident in that activity, and cannot rely on any exception available under Rylands v. Fletcher; and that compensation must be related to the magnitude and capacity of the enterprise so as to deter.

Why it matters here. It is the clearest statement that English tort law is persuasive and not binding, and it is the proof that Indian courts will make their own rule where English law does not fit Indian conditions. Chapter [Absolute Liability] works the rule itself out in full.

The second proof. In Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, the Court described the law of torts as a developing law whose frontiers cannot be strictly barricaded, and worked out the elements of tortious liability in its own terms rather than by citing an English text as authority.

Where Indian statute has taken over

The textbook line that "the law of torts in India is uncodified" is true of the general law and misleading about the practical law. Four statutes on this syllabus impose tortious or quasi-tortious liability by legislation, and between them they cover most of the claims actually made in India.

The Fatal Accidents Act 1855 gave the family of a person killed by a wrongful act an action that the common law refused them. Chapter [Death and the Fatal Accidents Act 1855] works it out.

The Motor Vehicles Act 1988 replaces the common law action for a road accident with a claim before a Claims Tribunal, and section 164 gives compensation of five lakh rupees for a death and two and a half lakh for grievous hurt without the claimant having to plead or prove any wrongful act, neglect or default. Chapters [What a Motor Accident Claim Is] and [Liability without Fault] work it out.

The Consumer Protection Act 2019 gives a purchaser of goods or services a remedy for defect and deficiency before a Commission instead of a suit for damages, and section 2 defines the terms on which it operates. Module IV works it out.

The Public Liability Insurance Act 1991 makes the owner of a hazardous substance liable under section 3 to give relief for death or injury caused by an accident, again with no inquiry into fault. Chapter [The Public Liability Insurance Act 1991] works it out.

And one further Indian development is entirely judge-made: the award of compensation by a constitutional court for the violation of a fundamental right, which chapter [Constitutional Tort] deals with, and which has no English equivalent at all.

A worked example

A tanker belonging to a chemical company overturns in a Mumbai suburb in 2026 and toxic liquid injures forty people. Where does the injured person's lawyer look?

Not in a Torts Act, because there is none.

In the Motor Vehicles Act 1988 first, because the injury arose out of the use of a motor vehicle: a claim lies before the Claims Tribunal under section 166, with the no-fault entitlement under section 164 available immediately.

In the Public Liability Insurance Act 1991 next, because the injury was caused by an accident while handling a hazardous substance: section 3 gives relief without proof of fault, and the owner is required to be insured.

In the common law of negligence and in the rule of absolute liability for anything beyond the statutory figures, because M.C. Mehta v. Union of India, AIR 1987 SC 1086, allows a claim against the enterprise measured by its capacity.

In article 32 or 226 if a public authority's failure caused the escape, because compensation for the infringement of the right to life is available in a writ petition.

Five sources, one accident, no code. That is what "tort in India" means in practice.

Distinctions that carry marks

What it does NOT mean

It does not mean English cases are binding in India. They are persuasive. A High Court that follows an English decision does so because it agrees with it, and the Supreme Court has refused to follow English law when it did not fit.

It does not mean India has no law of torts. It means there is no Torts Act. The law exists in decisions and in the four statutes above, and it is enforced daily.

It does not mean the rule of justice, equity and good conscience is a licence to decide by instinct. It has always been understood as a direction to apply a reasoned rule, and in practice the reasoned rule was usually the English one.

It does not mean codification would be an improvement. The uncodified subject is what allowed the Supreme Court to create absolute liability in a fortnight in 1986. A code would have required an amending Act.

Quick revision

1. The law of torts in India is uncodified and was received from English common law.
2. Presidency towns: English law by Charter. Mofussil: justice, equity and good conscience.
3. Article 372 of the Constitution continues the pre-Constitution law until altered.
4. English decisions are persuasive, not binding, and are applied only so far as they suit Indian conditions.
5. M.C. Mehta v. Union of India, AIR 1987 SC 1086: absolute liability created; India does not need the crutches of a foreign legal order.
6. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: a developing law whose frontiers cannot be barricaded.
7. Statutory inroads: the Fatal Accidents Act 1855, the Motor Vehicles Act 1988 (section 164), the Consumer Protection Act 2019 and the Public Liability Insurance Act 1991 (section 3).
8. Section 2(m) of the Limitation Act 1963 is the only statutory definition of "tort" in Indian law.
9. Constitutional compensation under articles 32 and 226 is an Indian development with no English parallel.

Test yourself

1. Write a note on the law of torts in India. The law of torts in India is uncodified. It came in as English common law, applied by the Presidency courts under their Charters and by the courts outside them under the rule of justice, equity and good conscience, and it is continued today by article 372 of the Constitution, which keeps in force the law in force before the Constitution until it is altered. English decisions are persuasive only, and are followed so far as they suit Indian conditions. Indian courts have departed from them: in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court refused to apply the rule in Rylands v. Fletcher and created a rule of absolute liability instead, saying that India no longer needs the crutches of a foreign legal order. Parliament has also intervened for the commonest claims: the Fatal Accidents Act 1855, the Motor Vehicles Act 1988, whose section 164 gives compensation without proof of fault, the Consumer Protection Act 2019 and the Public Liability Insurance Act 1991, whose section 3 does the same for hazardous substances. Section 2(m) of the Limitation Act 1963 supplies the only statutory definition of a tort.

2. Explain the rule of justice, equity and good conscience and its role in the reception of tort law in India. Outside the Presidency towns the courts were directed to decide, where no specific rule of law applied, according to justice, equity and good conscience. Since the judges were trained in English law and no Indian statute covered the field, the rule operated in practice as authority to apply the English common law of torts wherever it appeared reasonable. That is how trespass, nuisance, defamation and negligence became Indian law without any Indian legislature enacting them. The rule was never a licence to decide by instinct: it required a reasoned rule, and it always allowed a court to refuse an English rule that did not suit Indian conditions, which is the seed of the modern position that English decisions are persuasive only.

3. Are English decisions binding on Indian courts in matters of tort? No. They are of persuasive authority. Indian courts follow them where the reasoning is sound and the rule suits Indian conditions, and they decline to follow them where it does not. The clearest example is M.C. Mehta v. Union of India, AIR 1987 SC 1086, in which a Bench of five judges set out the rule in Rylands v. Fletcher, held that a rule evolved in the nineteenth century could not govern a modern industrial economy, said that Indian judicial thinking cannot be constricted by the law as it prevails in England, and laid down a rule of absolute liability which English law does not recognise.

4. "India has no law of torts because it has no Torts Act." Comment. The premise is right and the conclusion is wrong. There is no code of tort law in India, and there is unlikely to be one. But the law exists, first in the common law received here and continued by article 372, second in the decisions of Indian courts which have developed it independently, and third in statutes that impose tortious liability directly: the Fatal Accidents Act 1855, the Motor Vehicles Act 1988, the Consumer Protection Act 2019 and the Public Liability Insurance Act 1991. In terms of the number of claims actually brought in India, the statutory law of torts is far larger than the common law part, because almost every road accident and almost every consumer complaint is a statutory claim.

4. Conspiracy and the economic torts. A combination to injure is actionable where the predominant purpose is to injure rather than to advance the defendants' own interests.

Where no mental element is needed at all

This is the group that surprises students, and in India it is the group that decides most real cases.

Strict liability. Under the rule in Rylands v. Fletcher a person who brings a dangerous thing on to his land in a non-natural use is liable for the damage its escape causes, whether or not he was at fault. It is no defence that the escape happened without his wilful act, default or neglect, or even that he did not know the thing was there.

Absolute liability. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court held that an enterprise carrying on a hazardous or inherently dangerous activity is absolutely liable for harm resulting from an accident in that activity, and that it is no answer that it took all reasonable care and that the harm occurred without any negligence on its part.

Statutory no-fault liability. Section 164 of the Motor Vehicles Act 1988 provides that in a claim under it the claimant shall not be required to plead or establish that the death or grievous hurt was due to any wrongful act, neglect or default. Section 3 of the Public Liability Insurance Act 1991 does the same for an accident while handling a hazardous substance.

Vicarious liability. A master is liable for a servant's tort committed in the course of employment although the master neither intended nor was careless about anything. The mental element that matters is the servant's, not the master's.

A worked example

Ganesh owns a plot next to Farida's house. He digs a well on his own land purely because he wants to cut off the underground water that feeds Farida's well, and he says so openly.

Is his motive bad? Yes, and it is proved out of his own mouth.

Is he liable? No, if the law gives a landowner an unqualified right to draw water percolating under his own land. Motive is irrelevant to the exercise of a right, and a lawful act does not become unlawful because it is done from spite. Farida's loss is real, but it is damnum sine injuria.

Change one fact. Suppose instead that Ganesh, from the same spite, begins burning rubber tyres on his land so that smoke pours into Farida's windows. Now his use of his own land is a nuisance, and his malicious purpose is admissible to show that the use was unreasonable. He is liable, and the same bad motive that was irrelevant in the first case is decisive in the second.

That contrast is the answer to the standard question "is motive relevant in tort?" The answer is: not as a rule, and always in the four exceptions.

Distinctions that carry marks

What it does NOT mean

"Malice" does not always mean spite. In its legal sense it usually means no more than a deliberate act without lawful excuse. A student who reads "malice" as spite in every sentence will misread the law of defamation completely.

An honest belief is not always a defence. In deceit it is, because a false statement made honestly is not fraudulent; in negligence it is not, because the test is what a reasonable person would have done, not what this defendant believed.

No-fault liability is not liability without limits. Section 164 of the Motor Vehicles Act 1988 fixes the amount payable and section 3 of the Public Liability Insurance Act 1991 fixes the relief; the claimant who wants more must prove fault in the ordinary way.

The mental element is not the same as the burden of proof. Res ipsa loquitur shifts the burden in negligence without changing what has to be proved, and chapter [Res Ipsa Loquitur] keeps the two ideas apart.

Quick revision

1. Intention is what the defendant meant to do; motive is why he did it.
2. Malice in law is a deliberate act without just cause or excuse; malice in fact is spite.
3. General rule: motive is irrelevant. A lawful act does not become unlawful by a bad motive.
4. Four exceptions: malicious prosecution, qualified privilege in defamation, nuisance, and conspiracy.
5. Negligence is judged objectively, by the standard of the reasonable person.
6. No mental element at all is needed for strict liability, absolute liability, statutory no-fault liability, and vicarious liability.
7. M.C. Mehta v. Union of India, AIR 1987 SC 1086: no answer that all reasonable care was taken.
8. Section 164 of the Motor Vehicles Act 1988: the claimant need not plead or establish wrongful act, neglect or default.

Test yourself

1. "Motive is irrelevant in the law of torts." Discuss. The proposition is the general rule. A lawful act does not become unlawful because it was done from a bad motive, and an unlawful act does not become lawful because the motive was good; if it were otherwise, the exercise of every right could be reopened by an inquiry into the owner's feelings. There are four established exceptions. In malicious prosecution malice is an ingredient the plaintiff must prove. In defamation, proof of malice in fact destroys a defence of qualified privilege. In nuisance, a malicious purpose may make an otherwise reasonable use of land unreasonable. And in conspiracy and the economic torts, a combination whose predominant purpose is to injure is actionable. So motive is irrelevant to whether a right exists and may be decisive in whether its exercise was reasonable.

2. Distinguish malice in law from malice in fact. Malice in law means a wrongful act done intentionally and without just cause or excuse. It says nothing about the defendant's feelings and is inferred from the act itself, which is why a defamatory statement is actionable without proof that the maker felt any ill will. Malice in fact, also called express or actual malice, means spite or ill will, that is, a bad motive, and it must be proved as a fact. The distinction decides cases: in defamation malice in law is presumed and malice in fact has to be proved, and only the second defeats qualified privilege.

3. Is fault an essential element of tortious liability in India? No. It is essential to most torts, but not to all. Strict liability under the rule in Rylands v. Fletcher makes a defendant liable for the escape of a dangerous thing brought on to land in a non-natural use, irrespective of fault. Absolute liability, laid down in M.C. Mehta v. Union of India, AIR 1987 SC 1086, goes further and rejects even the exceptions to that rule, holding that it is no answer that the enterprise took all reasonable care. Statutory schemes dispense with fault expressly: section 164 of the Motor Vehicles Act 1988 says the claimant need not plead or establish wrongful act, neglect or default, and section 3 of the Public Liability Insurance Act 1991 gives relief on proof of the accident alone. Vicarious liability makes a master answerable for a servant's fault without any fault of his own.

4. What is the difference between intention and negligence as mental elements? Intention means that the defendant meant the consequence or knew it was substantially certain to follow. Negligence means that he did not take the care a reasonable person would have taken, and it is judged objectively: the question is not what this defendant thought but what a reasonable person in his position would have done. The practical consequence is that a defendant who acted with an honest but unreasonable belief is not liable in deceit, where honesty is a complete answer, but is liable in negligence, where honesty is not.

Defamation is a tort and an offence: section 356 of the Sanhita defines defamation, sets out its ten exceptions, and punishes it.

Trespass to land is a tort, and criminal trespass, which requires an intent to commit an offence or to intimidate, insult or annoy, is an offence under the Sanhita.

Public nuisance is an offence under section 270 of the Sanhita, and it is a tort only for the person who can show special damage beyond that suffered by the public generally. Chapter [Public Nuisance] works that limit out.

Cheating is an offence, and the corresponding civil wrong is the tort of deceit, which chapter [Fraud or Deceit] deals with.

A worked example

Sanjay writes on a public social media page that Meena, a chartered accountant, steals from her clients. The statement is false, and hundreds of people read it. Meena loses two clients.

The tort. Meena may sue Sanjay for defamation in a civil court. She must prove that the statement was defamatory, that it referred to her and that it was published. She need not prove that Sanjay felt any ill will, because malice in law is presumed. If she succeeds she gets damages measured by the harm to her reputation, and she may also get an injunction. The standard of proof is the balance of probabilities.

The crime. The State, or Meena by way of a complaint, may set the criminal law in motion under section 356 of the Bharatiya Nyaya Sanhita 2023. There the prosecution must prove the ingredients of the offence beyond reasonable doubt, and must meet the ten exceptions in that section, which include the imputation of truth made for the public good. If it succeeds Sanjay is punished; Meena gets nothing out of the sentence itself.

Both may run together. The civil suit and the prosecution are independent. An acquittal in the criminal case does not bar the civil suit, because the standards of proof are different. A settlement of the civil suit does not by itself end the prosecution unless the offence is compoundable.

What it does NOT mean

It does not mean a tort is a "small" wrong and a crime a "big" one. Seriousness is not the test. Negligently killing forty people by an industrial escape is a tort, and stealing a bicycle is a crime.

It does not mean the same facts cannot produce both. They frequently do, and the two proceedings run independently.

It does not mean a criminal court can never order compensation. It can, and the Bharatiya Nagarik Suraksha Sanhita 2023 provides for it. But that power belongs to the criminal law and does not turn the prosecution into a civil suit.

It does not mean an acquittal decides the civil claim. The standards of proof differ, so a defendant acquitted beyond reasonable doubt may still be held liable on the balance of probabilities.

Quick revision

1. Tort: private wrong, civil suit by the injured person, compensation, balance of probabilities, freely compromised.
2. Crime: public wrong, prosecution by the State, punishment, beyond reasonable doubt, compromise only if compoundable.
3. The penal law in force since 1 July 2024 is the Bharatiya Nyaya Sanhita 2023, not the Indian Penal Code 1860.
4. Defamation is section 356 of the Sanhita; public nuisance is section 270; wrongful confinement is section 127; assault or criminal force is section 131.
5. Overlapping wrongs: assault, battery, false imprisonment, defamation, trespass, public nuisance and deceit.
6. Public nuisance is a tort only for a person who proves special damage.
7. The two proceedings are independent, and an acquittal does not bar a civil claim.

Test yourself

1. Distinguish between a tort and a crime. A tort is a wrong against a private individual; a crime is a wrong against the community. In tort the injured person sues in his own name in a civil court and the object is compensation; in crime the State prosecutes in its own name in a criminal court and the object is punishment. The standard of proof in tort is the preponderance of probabilities, in crime proof beyond reasonable doubt. A tortious claim may be compromised freely, while an offence may be compounded only if the law makes it compoundable. A mental element is essential to most offences but not to every tort, since strict, absolute and statutory no-fault liabilities dispense with it. In India the criminal law is codified, principally in the Bharatiya Nyaya Sanhita 2023, while the general law of torts is not.

2. Name the wrongs that are both a tort and an offence, with the provisions in force. Assault and the use of criminal force are torts and are punished by section 131 of the Bharatiya Nyaya Sanhita 2023. False imprisonment is a tort and wrongful confinement is an offence under section 127. Defamation is a tort and an offence under section 356, which also contains the ten exceptions. Trespass to land is a tort, and criminal trespass, which requires an intent to commit an offence or to intimidate, insult or annoy, is an offence. Public nuisance is an offence under section 270 and is a tort only at the suit of a person who proves special damage. Cheating is an offence and its civil counterpart is the tort of deceit.

3. Does an acquittal in a criminal case bar a civil action in tort on the same facts? No. The two proceedings are independent, they are brought by different persons for different objects, and above all they apply different standards of proof. A prosecution fails unless the case is proved beyond reasonable doubt; a civil claim succeeds on the preponderance of probabilities. So a defendant acquitted of causing hurt may still be held liable in battery on the same evidence. The converse is also true: a finding in a civil suit does not establish guilt.

4. Why is public nuisance treated differently from other overlapping wrongs? Because the harm is spread over the public rather than concentrated on one person. As an offence it is punished under section 270 of the Bharatiya Nyaya Sanhita 2023 at the instance of the State, which is the natural plaintiff for a wrong to everybody. As a tort it is actionable only by a person who can show damage particular to himself and different in kind from what the public generally suffers. Without that limit every member of the public could sue for the same obstruction, and the courts would be flooded with identical claims.

The carrier. A passenger with a ticket may sue on the contract of carriage or in negligence. A passenger without one, or a pedestrian, has only the tort.

The builder. A buyer of a flat may sue on the agreement to sell, and, if the building collapses on a passer-by, that passer-by sues only in tort.

Which to choose is a practical question: the tort claim escapes privity and may give a wider measure of damages; the contract claim may be easier to prove because the term is written down.

The other two wrongs the syllabus mentions

Breach of trust. A trust arises where property is held by one person for the benefit of another. The obligation is equitable and it is owed to the beneficiary alone. The remedy is an account and restoration of the trust property, and the amount is ascertained rather than assessed at large, which is why Salmond's definition puts breach of trust outside tort along with breach of contract.

Quasi-contract. A quasi-contract is an obligation imposed by law where there is no agreement at all, so that a person who has received a benefit at another's expense must restore it. Sections 68 to 72 of the Indian Contract Act 1872 contain the Indian examples: necessaries supplied to a person incapable of contracting, payment by an interested person, benefit of a non-gratuitous act, finder of goods, and money paid by mistake or under coercion. It resembles tort in that the law imposes the obligation, and differs from it in that the claim is for a definite sum representing the benefit received, not for damages the court assesses.

A worked example

Ashok books a taxi through an app. The driver, Bipin, drives carelessly and collides with a wall. Ashok is injured, so is Chandra who was standing on the footpath, and so is Deepa who had accepted a free ride from Ashok.

Ashok has a contract of carriage. He may sue for breach of it, and the measure will be governed by section 73 of the Indian Contract Act 1872. He may instead sue in negligence, and he may also complain to a Consumer Commission, because section 2 of the Consumer Protection Act 2019 makes a person who hires a service for consideration a consumer and gives him a remedy for deficiency.

Chandra has no contract with anybody. She sues in negligence, and privity is no obstacle because the duty of care is owed to every road user.

Deepa paid nothing and has no contract either. She too sues in negligence. The fact that she travelled free does not reduce the duty owed to her, though it may be relevant to a plea of consent, which chapter [Volenti Non Fit Injuria] deals with.

And Bipin's employer may be liable for all three without having done anything himself, on the principles in chapter [Vicarious Liability: Basis and Justification].

One accident, three plaintiffs, and the source of the duty decides who may sue on what.

What it does NOT mean

It does not mean a plaintiff must choose one and abandon the other. He may plead both in the alternative. What he cannot do is recover the same loss twice.

It does not mean a contract can never create a tortious duty. The relationship created by a contract is often what brings the parties into proximity, and the duty of care then arises independently of the contract's terms.

It does not mean an exemption clause is worthless in tort. A term may operate as consent, and consent is a defence in tort, but the clause has to be proved and its scope is construed strictly.

It does not mean quasi-contract is a kind of contract. There is no agreement in it at all; the name is historical.

Quick revision

1. Contract: duty fixed by the parties, owed to a determinate person, right in personam, privity required.
2. Tort: duty fixed by law, owed to persons generally, right in rem, no privity.
3. Damages in contract are assessed under section 73 of the Indian Contract Act 1872, which excludes remote and indirect loss.
4. Damages in tort are unliquidated and are fixed by the court.
5. Section 2(m) of the Limitation Act 1963 says a tort is a civil wrong not exclusively a breach of contract, which is what allows the same facts to give both.
6. Breach of trust is an equitable obligation owed to the beneficiary; the remedy is restoration, not damages at large.
7. Quasi-contract, sections 68 to 72 of the Indian Contract Act 1872, is an obligation imposed by law to restore a benefit; the claim is for a definite sum.
8. A consumer may now have a third route under the Consumer Protection Act 2019.

Test yourself

1. Distinguish a tort from a breach of contract. In a breach of contract the duty broken was created by the parties' own agreement, is owed only to the other party, and corresponds to a right in personam; privity is therefore essential and a stranger to the contract cannot sue. In a tort the duty is imposed by the law, is owed to persons generally, and corresponds to a right in rem; no privity is needed and a stranger may sue. Damages in contract are liquidated or are assessed under section 73 of the Indian Contract Act 1872, which allows loss naturally arising in the usual course of things or in the parties' contemplation and excludes remote and indirect loss; damages in tort are unliquidated and are assessed by the court. The same facts may give both, because section 2(m) of the Limitation Act 1963 defines a tort as a civil wrong which is not exclusively a breach of contract.

2. Can the same act be both a tort and a breach of contract? Illustrate. Yes. A surgeon who operates carelessly on a paying patient breaks the contract of treatment and also commits the tort of negligence; a carrier who injures a ticketed passenger breaks the contract of carriage and commits negligence. The plaintiff may sue on either, or plead both in the alternative, but cannot recover the same loss twice. The choice matters: the contractual measure under section 73 excludes remote loss, and the tortious claim escapes privity, so a companion travelling free or a pedestrian can sue only in tort. In India a consumer may also complain to a Consumer Commission, since section 2 of the Consumer Protection Act 2019 gives a remedy for deficiency in a service hired for consideration.

3. Write a short note on quasi-contract and its relation to tort. A quasi-contract is an obligation imposed by law where there is no agreement, so that a person who receives a benefit at another's expense must restore it. The Indian examples are in sections 68 to 72 of the Indian Contract Act 1872: necessaries supplied to a person incapable of contracting, payment by a person interested in a payment, benefit of a non-gratuitous act, the liability of a finder of goods, and money paid by mistake or under coercion. It resembles a tort in that the law and not the parties creates the obligation. It differs in that the claim is restitutionary and is for a definite sum representing the benefit received, whereas a claim in tort is for unliquidated damages representing the plaintiff's loss.

4. Why is privity important in contract and irrelevant in tort? Because the two duties have different sources. A contractual duty exists only because the parties agreed to it, so only a person who was party to that agreement can complain of its breach; that is what privity means. A tortious duty is imposed by the law on everybody in a given position, so the class of people who may complain is defined by who was foreseeably affected, not by who signed anything. The practical consequence appears in every road accident: the ticketed passenger may choose between contract and tort, while the pedestrian has only tort, and both recover.

An insolvent. On insolvency the right to sue for wrongs to property passes to the official assignee or receiver, because it is part of the estate available to creditors. A right of action for a purely personal wrong, such as defamation or assault, remains with the insolvent himself.

A convict. A person undergoing a sentence does not lose the right to sue. On the contrary, the Supreme Court has held that a prisoner retains the fundamental right to life, and compensation has been awarded for custodial violence and unlawful detention.

An alien enemy. A subject of a State at war with India, or a person voluntarily residing in or carrying on business in enemy territory, cannot sue in an Indian court during the war without permission from the Central Government. His right is suspended and not destroyed, and he may sue after the war ends.

A foreign State. A foreign sovereign State may sue in an Indian court, subject to the conditions in section 86 of the Code of Civil Procedure 1908, which requires the consent of the Central Government.

A foreign national. This is an Indian development and it is worth a paragraph of its own.

The foreign national, and the case that decided it

Facts. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, decided on 28 January 2000. Hanuffa Khatoon, a national of Bangladesh, was gang-raped by railway employees in a room of the Rail Yatri Niwas at Howrah station. A practising advocate, Chandrima Das, moved the High Court under article 226 claiming compensation for the victim, and the High Court awarded Rs. 10 lakhs against the Railways. The Railways argued that the wrong was that of individual employees, that the remedy lay in private law, that the petitioner was a stranger to the victim, and that the victim was a foreign national.

Held. The appeal was dismissed. The Court held that the right to life under article 21 is available to every person and not only to a citizen, so a foreign national may enforce it; that the employees were performing functions of a commercial character on behalf of the Union, which made the Union liable; that a practising advocate could bring the petition in the public interest; and that compensation in public law is an appropriate remedy for the violation of a fundamental right.

Why it matters here. It settles that nationality does not decide who may sue in India for a violation of the right to life, and it is the leading case on the width of the class of plaintiffs.

Where somebody sues on another's behalf

The next friend. A minor or a person of unsound mind sues through a next friend, who is not himself the plaintiff.

The legal representative. On death the action, where it survives, is brought by the executor, administrator or representative of the deceased. Chapter [Death and the Fatal Accidents Act 1855] works this out, and Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643, holds that a legal representative who is not a dependant may still receive a statutory no-fault amount, because it forms part of the estate.

The State as parens patriae. Parens patriae is Latin for parent of the country, and it describes the power of the State to act for those who cannot act for themselves.

Facts. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, decided on 22 December 1989 by five judges. After the escape of methyl isocyanate gas at Bhopal, Parliament passed the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, giving the Union Government the exclusive right to represent the victims in all claims arising out of the disaster, in India and abroad. Its validity was challenged.

Held. The Act was upheld on the doctrine of parens patriae: the State is under an obligation to protect the rights of citizens who are unable to protect themselves, and the victims, poor and disorganised in the face of a multinational corporation, were such a class. The Court read into the Act a requirement of notice and hearing to the victims where a settlement is proposed, and held that the State was obliged to see that the victims were compensated even if the company could not pay.

Why it matters here. It is the largest Indian example of somebody other than the injured person suing for them, and chapter [The Bhopal Gas Disaster] takes the story further.

A representative complaint. Under section 35 of the Consumer Protection Act 2019, one or more consumers having the same interest may complain on behalf of all of them, with the permission of the Commission, which is the consumer law's version of the same idea.

A worked example

A school bus overturns because of the driver's negligence. Among those hurt are Reena, aged nine; her mother, who was accompanying the class; a German exchange student; and the bus company's rival, whose contract to supply the school was cancelled because of the accident.

Reena may sue, through a next friend. Her age does not reduce the duty owed to her.

Her mother may sue in her own name.

The German student may sue in the ordinary courts, and if a public authority is responsible may also claim compensation under article 226, because Chandrima Das holds that article 21 protects every person and not only a citizen.

The rival may not sue. His loss is real but no legal right of his has been infringed; it is damnum sine injuria.

What it does NOT mean

It does not mean a person who suffers most is always the plaintiff. The right infringed decides, not the loss suffered.

It does not mean a minor's claim is weaker. It is brought differently, through a next friend, and it is worth as much.

It does not mean a corporation can sue for anything. It can sue for injury to property, business and trading reputation, not for wrongs which by their nature can be done only to a human being.

It does not mean an alien enemy loses his rights forever. His right to sue is suspended during the war, not extinguished.

Quick revision

1. General rule: any person whose legal right is infringed may sue; loss and privity are not required.
2. Minor and person of unsound mind: sue through a next friend.
3. Unborn child: may sue after birth for prenatal injury.
4. Married woman: sues in her own name.
5. Corporation: property, business and trading reputation only.
6. Insolvent: rights of action relating to property pass to the assignee; personal wrongs remain with him.
7. Alien enemy: right suspended during war; a foreign State sues subject to section 86 of the Code of Civil Procedure 1908.
8. Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988: article 21 protects every person, so a foreign national may claim.
9. Charan Lal Sahu v. Union of India, AIR 1990 SC 1480: the State may sue as parens patriae for victims unable to protect themselves.
10. Section 35 of the Consumer Protection Act 2019 allows a representative complaint by consumers having the same interest.

Test yourself

1. Who may sue in tort? Discuss the position of the special classes of plaintiffs. The general rule is that any person whose legal right has been infringed may sue, whether or not he has suffered loss and whether or not he has any relationship with the defendant. Special provision exists for several classes. A minor and a person of unsound mind sue through a next friend. A child injured in the womb may sue after birth. A married woman sues in her own name. A corporation may sue for wrongs to its property, business and trading reputation, but not for wrongs that can only be committed against a natural person. On insolvency, rights of action relating to property pass to the assignee while personal claims stay with the insolvent. A convict retains his right to sue and, in India, his right to compensation for custodial violence. An alien enemy cannot sue during the war without the permission of the Central Government, and a foreign State sues subject to section 86 of the Code of Civil Procedure 1908. A foreign national may sue and may also enforce article 21, as Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, holds.

2. Can a person who has suffered no loss sue in tort? Yes, where a legal right of his has been infringed and the tort is actionable without proof of damage. The maxim is injuria sine damno: the law presumes damage where a right is violated, and the plaintiff succeeds, though the damages may be nominal. Conversely, a person who has suffered heavy loss but can point to no right of his that was infringed cannot sue at all, which is damnum sine injuria. So the test is the infringement of a right, not the presence of loss.

3. Explain the doctrine of parens patriae with an Indian case. Parens patriae means parent of the country, and it describes the power and obligation of the State to protect the rights of those who cannot protect themselves. In Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, a Bench of five judges upheld the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, which gave the Union Government the exclusive right to represent the victims of the gas leak in all claims in India and abroad. The Court held that the victims were poor and disorganised and faced a multinational corporation, so that the State was the proper representative, but it read into the Act a requirement that victims be given notice and an opportunity to be heard where a settlement was proposed, and held that the State was bound to ensure that they were compensated even if the company could not pay.

4. Can a foreign national claim compensation in India for a tort committed by public servants? Yes. In Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, a Bangladeshi woman was gang-raped by railway employees at Howrah station, and compensation of Rs. 10 lakhs awarded by the High Court against the Railways was upheld. The Supreme Court held that the right to life guaranteed by article 21 is available to every person and not only to citizens, that the employees were performing functions of a commercial character on behalf of the Union so that the Union was liable, that a practising advocate could bring the petition in the public interest, and that compensation in public law is an appropriate remedy for the violation of a fundamental right.

Section 2. One suit only, and the claim for the estate. Not more than one action shall be brought for and in respect of the same subject matter of complaint. The proviso allows the executor, administrator or representative to add a claim for any pecuniary loss to the estate of the deceased occasioned by the wrongful act, and what is recovered on that claim forms part of the assets of the estate.

Section 3. Pleading. The plaint must give full particulars of the persons for whose benefit the action is brought and of the nature of the claim.

Section 4. Interpretation. "Person" applies to bodies politic and corporate. "Parent" includes father and mother and grandfather and grandmother. "Child" includes son and daughter, grandson and granddaughter, stepson and stepdaughter.

Read section 4 carefully: it is where the marks are, because "parent" and "child" go two generations and include step-relations. A grandmother dependent on a grandson is within the Act.

The two claims the Act allows, and how they differ

The limitation the Act once carried, and why it is gone

The original section 2 required every such action to be brought within twelve calendar months of the death. Those words were omitted in 1871, and the footnote to the Act records that limitation is now governed by the Limitation Act 1963. That is a small point with a large consequence: a student who quotes a twelve month period from an old book is quoting a rule repealed a hundred and fifty years ago.

What the Motor Vehicles Act 1988 does to the maxim

For a death caused by a motor accident the practical claim is not under the Act of 1855 at all: it is a claim before a Claims Tribunal under section 166 of the Motor Vehicles Act 1988, and chapters [The Application for Compensation] and [Computing Just Compensation] work it out.

Two things there matter here.

Who may claim is wider. In Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690, decided on 11 May 1987, the brothers of a boy killed by a Corporation bus applied to the Tribunal. The Corporation argued that only the wife, husband, parent and child named in the Fatal Accidents Act 1855 could claim and that the Tribunal provisions were merely procedural.

Held. The petition was maintainable. The brother of a person who dies in a motor accident may claim if he is a legal representative of the deceased; every legal representative who suffers by the death should have a remedy; and it is for the Tribunal to determine what compensation appears to it to be just and to specify the persons to whom it is payable. The Court also held that the no-fault provision then in force departed from the common law rule that negligence must be proved.

Why it matters here. It is the case that separates the narrow class in section 1A from the wider class of legal representatives under the Motor Vehicles Act.

And a legal representative need not be a dependant. In Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643, decided on 30 March 2007, a married daughter claimed the statutory no-fault amount for her father's death and it was objected that she was not dependent on him.

Held. A person who is a legal representative but not a dependant may still be a beneficiary. The no-fault liability is a statutory liability for a fixed, crystallised sum which forms part of the estate of the deceased, and the legal representative who inherits the estate is entitled to receive it. The expression "legal representative" is not defined in the Act and is to be given a wide meaning.

And the injured person's own claim now survives. Section 166(5) of the Motor Vehicles Act 1988, inserted by the amendment of 2019 and in force from 1 April 2022, provides that the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is related to the injury or not. That is a direct statutory reversal of actio personalis moritur cum persona for motor accident claims.

A worked example

Vasant, aged forty, is knocked down and killed by a lorry driven negligently. He leaves a widow, a son of six, a dependent mother, and a brother who lived with him. He had been in hospital for a week before he died, and the family spent Rs. 2,00,000 on his treatment.

Under the Fatal Accidents Act 1855 the action is brought by his executor, administrator or representative, for the benefit of the widow, the son and the mother, who are within the class of wife, child and parent in section 1A read with section 4. The brother is not within that class. The measure is what the death cost each of them. The hospital expenses are claimed under the proviso to section 2 as a pecuniary loss to the estate, and one suit covers both claims.

Under the Motor Vehicles Act 1988, which is the route actually used, the application goes to the Claims Tribunal under section 166. The brother may apply too, if he is a legal representative, on the authority of Ramanbhai Prabhatbhai. The family may take the fixed amount under section 164 without proving fault at all, and the Tribunal awards what is just under section 168.

What it does NOT mean

The Act does not create a new tort. It gives a new plaintiff for an existing wrong. If the deceased could not have sued had he lived, nobody can sue after his death; section 1A says so in terms.

It does not give damages for grief. The measure is the pecuniary loss resulting from the death. The conventional sums awarded for loss of consortium and for loss of estate are worked out in chapter [Computing Just Compensation].

It does not allow several suits. Section 2 permits one action only for the same subject matter.

Its twelve month limitation is not the law. Those words were omitted in 1871 and limitation is governed by the Limitation Act 1963.

Quick revision

1. Actio personalis moritur cum persona: a personal action dies with the person, in both directions.
2. The Fatal Accidents Act 1855 was passed because it was cheaper to kill than to injure.
3. Section 1A: an action lies for the benefit of the wife, husband, parent and child, brought by the executor, administrator or representative.
4. Section 4: "parent" includes grandparents, "child" includes grandchildren and stepchildren.
5. Section 2: one suit only, plus a claim for pecuniary loss to the estate.
6. Section 3: the plaint must give particulars of the beneficiaries and the claim.
7. The twelve month limitation in the original section 2 was omitted in 1871.
8. Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690: a brother who is a legal representative may claim under the Motor Vehicles Act.
9. Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643: a legal representative who is not a dependant may still take the statutory no-fault amount, as part of the estate.
10. Section 166(5) of the Motor Vehicles Act 1988, in force from 1 April 2022: the injured person's claim survives to his legal representatives whatever the cause of death.

Test yourself

1. Explain the maxim actio personalis moritur cum persona and the changes made to it in India. The maxim means that a personal action dies with the person: at common law the death of either party extinguished the claim. Applied to a death caused by a wrong it meant that neither the estate nor the family of the deceased had any action, which made it cheaper to kill a man than to injure him. The Fatal Accidents Act 1855 altered this by giving the wife, husband, parent and child an action for the loss resulting to them from the death, brought by the executor, administrator or representative, and by allowing a claim for pecuniary loss to the estate to be added. For motor accidents the Motor Vehicles Act 1988 goes further: a claim may be made by any legal representative, and section 166(5), in force from 1 April 2022, provides that the injured person's own right to claim survives to his legal representatives irrespective of whether the cause of death was related to the injury.

2. Who may claim under the Fatal Accidents Act 1855, and who brings the action? The action is for the benefit of the wife, husband, parent and child of the deceased. Section 4 extends "parent" to grandfather and grandmother and "child" to grandson, granddaughter, stepson and stepdaughter, so the class covers three generations and step-relations. The action itself is brought by and in the name of the executor, administrator or representative of the deceased, not by the beneficiaries in their own names, and the amount recovered, after deducting costs, is divided among them in the shares the court directs. Only one action may be brought for the same subject matter, and a claim for pecuniary loss to the estate may be added to it under the proviso to section 2.

3. Distinguish the claim under section 1A from the claim under the proviso to section 2. The section 1A claim is for the loss the death causes to the dependants named in that section, and what is recovered is divided among them as the court directs. The claim under the proviso to section 2 is for pecuniary loss caused to the estate of the deceased by the wrongful act, such as medical and funeral expenses, and what is recovered forms part of the assets of the estate and passes to the heirs generally. The first compensates the family for what they lost by the death; the second restores to the estate what the wrong took from it. Both are made in one suit, because section 2 permits only one action.

4. A man dies in a road accident leaving a married sister who was not dependent on him. Can she claim? Not under section 1A of the Fatal Accidents Act 1855, because a sister is not within the class of wife, husband, parent and child even as extended by section 4. She may claim under the Motor Vehicles Act 1988 if she is a legal representative of the deceased. Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690, holds that a sibling who is a legal representative may maintain a claim petition, and Manjuri Bera v. Oriental Insurance Co. Ltd, (2007) 10 SCC 643, holds that a legal representative who is not a dependant may still receive the statutory no-fault amount, because it is a crystallised sum forming part of the estate which she inherits. What she cannot recover is a dependency she never had.

What protects a judge now. The Judges (Protection) Act 1985, Act 59 of 1985, is the statute in force. Section 2 defines "Judge" to mean not only a person officially designated as a Judge but also every person empowered by law to give a definitive judgment in a legal proceeding, or a judgment which if not appealed would be definitive, or which if confirmed by another authority would be definitive, and every member of a body empowered to give such a judgment. Section 3(1) provides that, notwithstanding anything in any other law, no court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Section 3(2) preserves the power of the Central Government, a State Government, the Supreme Court or a High Court to take action against a Judge under any law.

The definition in section 2 is wide enough to cover a Magistrate, a member of a tribunal and, on its terms, a member of a body that decides. So the practical answer to "can a judge be sued in tort?" in 2026 is: no, for anything done in the discharge of judicial duty, by force of section 3 of the Act of 1985.

The State

The State is not immune in India in the way the Crown once was in England, and article 300(1) of the Constitution is the provision that settles how far it is liable. The topic belongs to chapter [Vicarious Liability of the State], and two cases fix the outline.

Facts. State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, decided on 2 February 1962. A Government jeep being driven from a repair shop to the Collector's residence was driven rashly and negligently by a State employee and knocked down a pedestrian, who died in hospital. His widow and daughter sued the State.

Held. The State was liable. The liability of the State for a tort committed by its servant within the scope of his employment is the same as that of any other employer. Article 300(1), by using the words "in like cases", refers back through the Government of India Acts to the position before the Constitution, so that the State's liability is that of the East India Company.

Facts. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, decided on 29 September 1964. Police at Meerut arrested a partner of a bullion firm on suspicion and seized gold and silver from him, which were kept in the police malkhana. The head constable in charge misappropriated the gold and absconded to Pakistan. The firm sued the State for its value.

Held. The claim failed. The powers to arrest, to search and to seize are conferred by statute on specified officers and can properly be characterised as sovereign powers, so although the negligence was that of State employees in the course of their employment, no claim lay against the State. The Court approved the P. and O. Steam Navigation case, distinguished Vidhyawati, and suggested that Parliament legislate on the subject.

Why they matter here. Together they set the sovereign and non-sovereign division, which chapter [Vicarious Liability of the State] then follows to N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205, where the Supreme Court held that the doctrine of sovereign immunity has no place in a modern welfare State.

Minors, parents and corporations

A minor is liable for his own torts. Infancy is not a defence, because tortious liability does not depend on the capacity to contract. Two qualifications matter. Where the tort requires a particular mental state, a very young child may be incapable of it. And where the claim is in substance a claim on a contract that the minor could not make, it cannot be dressed up as a tort.

A parent is not liable merely because the wrongdoer is his child. He is liable where the child was acting as his servant or agent, or where the parent's own negligence, in giving a young child a dangerous thing for example, caused the harm.

A corporation may be sued for torts committed by its servants in the course of their employment, and for torts committed by its directing organs. It cannot be sued for a wrong which by its nature cannot be committed by an artificial person, and an act wholly outside its objects raises a question of whether it was the company's act at all.

A worked example

A District Magistrate signs a detention order which is later held illegal. The detenu wants to sue.

The Magistrate, acting judicially, is protected by section 3 of the Judges (Protection) Act 1985 for anything done in the discharge of judicial duty. Where the function was executive rather than judicial, that Act does not protect him and the ordinary law applies.

The State may be liable. On Kasturi Lal the exercise of a statutory power of that kind was called sovereign; on N. Nagendra Rao the sovereign or non-sovereign division no longer decides the question in a welfare State.

The Constitution provides the surest route: a petition under article 32 or 226 for compensation for the violation of article 21, which chapter [Constitutional Tort] deals with, and to which sovereign immunity is no answer, as Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, holds.

The Governor, if the order was made in his name, is not answerable under article 361, but that does not immunise the State.

What it does NOT mean

It does not mean these defendants can do no wrong. The immunities are about the forum and the office, not about the morality of the act.

It does not mean a judge cannot be dealt with. Section 3(2) of the Judges (Protection) Act 1985 expressly preserves the power of the Government, the Supreme Court and the High Courts to act against a judge under any law.

It does not mean the State is immune. In India the State can be sued in tort. What was in doubt was the extent, and N. Nagendra Rao narrowed the doubt sharply.

It does not mean a minor escapes. A minor is liable for his own torts; only the transaction that is really a contract is outside.

Quick revision

1. Foreign States: section 86 of the Code of Civil Procedure 1908 requires the consent of the Central Government.
2. Diplomatic agents: immune under the international law of diplomatic relations as given effect by statute.
3. President and Governors: article 361; not answerable for the exercise of the powers and duties of office; two months' notice for civil proceedings during the term.
4. Judges: the Judicial Officers Protection Act 1850 was repealed by the Repealing and Amending Act 2023, in force 17 December 2023.
5. The Judges (Protection) Act 1985, section 3: no court shall entertain any civil or criminal proceeding against a person who is or was a Judge for anything done in the discharge of judicial duty; section 2 defines "Judge" widely; section 3(2) preserves disciplinary powers.
6. The State: article 300(1); State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, liable; Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, not liable for an exercise of sovereign power.
7. Minors are liable for their own torts; parents are not liable merely as parents.
8. Corporations are liable for torts of their servants in the course of employment.

Test yourself

1. Who cannot be sued in tort? Explain with the provisions in force. A foreign State cannot be sued without the consent of the Central Government under section 86 of the Code of Civil Procedure 1908, and diplomatic agents are immune under the international law of diplomatic relations as given effect in India. The President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office under article 361 of the Constitution, and no civil proceeding claiming relief against them personally may be instituted during their term without two months' notice. A judge cannot be sued for anything done in the discharge of judicial duty: the protection now comes from section 3 of the Judges (Protection) Act 1985, since the Judicial Officers Protection Act 1850 was repealed by the Repealing and Amending Act 2023 with effect from 17 December 2023. The State may be sued, to the extent settled by article 300(1) and the cases on it. A minor is liable for his own torts, and a parent is not liable merely as a parent.

2. What is the present statutory protection of judges in India? The Judges (Protection) Act 1985. Section 2 defines a Judge to include not only a person officially designated as such but every person empowered by law to give a definitive judgment in a legal proceeding, or one which would be definitive if not appealed or if confirmed by another authority, and every member of a body empowered to give such a judgment. Section 3(1) provides that no court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed, done or spoken when acting or purporting to act in the discharge of his official or judicial duty. Section 3(2) preserves the power of the Central Government, a State Government, the Supreme Court or a High Court to take action against a Judge under any law. The older Judicial Officers Protection Act 1850, which most textbooks still cite, stands repealed by the Repealing and Amending Act 2023.

3. Is a minor liable for his torts? Is his father? A minor is liable for his own torts, because liability in tort does not depend on capacity to contract. Two qualifications apply: where the tort requires a particular state of mind a very young child may be incapable of forming it, and a claim that is in substance on a contract the minor could not make cannot be reframed as a tort. The father is not liable merely because he is the father. He becomes liable where the child was acting as his servant or agent, or where his own negligence caused the harm, for example by entrusting a dangerous thing to a child too young to handle it.

4. Explain the extent of the State's liability in tort with reference to article 300. Article 300(1) provides that the Government of India and of a State may sue and be sued in like cases as the Dominion of India and the corresponding Provinces might have done. In State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, the Supreme Court held that the words "in like cases" refer back through the Government of India Acts to the liability of the East India Company, and that within the scope of employment the State is liable like any other employer; the State was held liable for a pedestrian killed by a Government jeep. In Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, the Court held that the powers to arrest, search and seize are sovereign powers and that no claim lay against the State for gold misappropriated from a police malkhana. That division was narrowed in N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205, where the Court held that sovereign immunity has no place in a modern welfare State.

The Indian case

Facts. Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, decided on 12 February 1976. The plaintiffs sued in the City Civil Court at Ahmedabad for a permanent injunction restraining the exhibition of the film Jai Santoshi Maa, complaining that it hurt the religious feelings of a section of Hindus, and applied for a temporary injunction. The trial judge refused it, holding that no civil right of the plaintiffs was involved.

Held. The appeal was dismissed. The High Court held that hurt to religious feelings has never been recognised by the courts as a civil actionable wrong; that mere annoyance to feelings, without pecuniary or tangible loss, is not a ground for an injunction; and that a plaintiff must show a substantial injury which the court can recognise. No legal right having been infringed, the case was one of damnum sine injuria.

Why it matters here. It shows the maxim working on facts an Indian student will recognise, and it shows that even a strongly felt harm is not legal injury.

The situations in which the maxim applies

Lawful competition. A trader who loses custom to a rival has no action. This is the Gloucester Grammar School rule, and it is the reason competition law, not tort, regulates markets.

The exercise of a legal right on one's own property. A landowner who builds, drains or digs on his own land may cause serious loss to a neighbour without liability, unless what he does amounts to a nuisance or infringes an easement.

Acts done under statutory authority. Where the legislature authorises an act, loss caused by doing it carefully is not actionable. Chapter [General Defences II] takes this further.

Loss caused by an act the law permits for the public good. A lawful strike, a lawful procession, or the publication of a true statement may each cause heavy loss without giving an action.

Hurt to feelings, religious or otherwise. Ushaben is the Indian authority.

A worked example

Farida runs the only bus service between two villages. Three things happen.

One. The State Transport Undertaking starts a rival service under a permit lawfully granted. Farida's takings halve. This is damnum sine injuria: she has a licence to run buses, not a right that others shall not.

Two. A rival operator spreads a false story that Farida's brakes fail. Her takings halve again. This is not damnum sine injuria: her reputation is a protected interest and the false statement infringes it, so an action lies in defamation, and possibly in injurious falsehood.

Three. The State builds a new road so that the village is served directly and nobody needs Farida's bus at all. Her business closes. This is damnum sine injuria again, and on a large scale: the loss is total and no right of hers has been touched.

The way to answer any problem on this maxim is to ignore the size of the loss entirely and ask one question: which legal right of the plaintiff was infringed? If you cannot name it, the answer is damnum sine injuria.

Distinctions that carry marks

What it does NOT mean

It does not mean the plaintiff suffered nothing. He may have lost everything. The maxim is about rights, not about amounts.

It does not mean the defendant behaved well. He may have acted from spite. Motive is generally irrelevant, as chapter [The Mental Element in Tort] explains, so a lawful act done from a bad motive is still lawful.

It does not mean the loss can never be recovered under some other law. A competitor's conduct may be an offence, or may attract a statutory regulator, or may breach a contract. The maxim says only that the law of torts gives nothing.

It does not mean feelings are never protected. Defamation protects reputation and nuisance protects the comfortable enjoyment of land. What Ushaben decides is that hurt to religious feelings, standing alone, is not a legal injury.

Quick revision

1. Damnum is loss; injuria is the violation of a legal right.
2. Damnum sine injuria is loss without legal injury and gives no action, however large the loss.
3. Gloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 21, 23: a rival school; competition is no ground of action.
4. Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13: hurt to religious feelings is not a civil actionable wrong.
5. Situations: lawful competition, use of one's own property, statutory authority, lawful acts for the public good, hurt feelings.
6. The test in a problem: name the legal right infringed. If you cannot, the maxim applies.
7. It is the practical limit on any general principle that all harm is actionable.

Test yourself

1. Explain the maxim damnum sine injuria with decided cases. Damnum means loss and injuria means the violation of a legal right, so the maxim describes loss unaccompanied by any infringement of a right. Such loss gives no cause of action, however large it may be, because the law of torts protects rights rather than wallets. In the Gloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 21, 23, a schoolmaster set up a rival school next door, the plaintiff's pupils left and his fees fell sharply, and it was held that no action lay either for damages or for an injunction, because competition is no ground of action whatever damage it causes provided no legal right is infringed. In Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, an injunction to restrain the exhibition of a film said to hurt religious feelings was refused, the High Court holding that hurt to religious feelings is not a civil actionable wrong and that mere annoyance to feelings without tangible loss cannot found an injunction.

2. "The extent of the loss is irrelevant to liability in tort." Do you agree? Yes, so far as the existence of liability is concerned, and this maxim is the proof. A trader ruined by lawful competition recovers nothing, while a man wrongly turned away from a polling booth, who loses nothing at all, recovers. Liability depends on whether a legal right was infringed, not on how much was lost. The extent of the loss becomes relevant only once liability is established, when it governs the amount of damages, and even then some torts are actionable without proof of damage at all.

3. Distinguish damnum sine injuria from injuria sine damno. Damnum sine injuria is loss without the violation of a legal right, and gives no action; the Gloucester Grammar School case and Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13, are the illustrations. Injuria sine damno is the violation of a legal right without loss, and does give an action, because in torts actionable per se the law presumes damage; Ashby v. White, decided in 1703, and Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, are the illustrations. In the first there is harm but no wrong; in the second there is a wrong but no harm. The damages in the second are frequently nominal, though in Bhim Singh the Supreme Court awarded Rs. 50,000.

4. A new supermarket opens opposite an old grocery shop and the shop closes within a year. Advise the shopkeeper. He has no remedy in tort. His loss is real and complete, but no legal right of his has been infringed: he has a right to trade, not a right that others shall not trade near him. The case is governed by the Gloucester Grammar School rule that competition is no ground of action whatever damage it may cause. The position would change if the supermarket had done something unlawful, for example spreading false statements about his goods, which would be defamation or injurious falsehood, or committing a nuisance that interfered with the enjoyment of his premises. Absent something of that kind, the case is damnum sine injuria.

Held. The Court held that he had not been produced before either judicial officer, that the police had acted deliberately and mala fide, and that there was a gross violation of his rights under articles 21 and 22(2). Since he was already free no order of release was needed, but the Court held that it had jurisdiction to compensate a victim of such an invasion by awarding monetary compensation, following Rudul Sah v. State of Bihar, and directed the State to pay him Rs. 50,000.

Why it matters here. It is the modern Indian illustration of the maxim, and it makes two points a student should take. First, the wrong lay in the violation of the right, and the fact that he was at liberty again by the time of the judgment did not defeat it. Second, the damages were not nominal at all: Rs. 50,000 in 1985 was a substantial sum, which shows that "no damage" does not mean "no money".

When are the damages nominal and when substantial?

This is the part students get wrong, because the textbook sentence "damages are nominal" is only half true.

Nominal damages are a token sum awarded to mark the violation of a right where no real loss followed and the violation was not aggravated. A rupee, or a hundred rupees, serves the purpose.

Substantial damages are awarded where the violation itself is serious, even if there is no financial loss. The liberty of a citizen detained for four days by a deliberate abuse of power is not marked by a token, and Bhim Singh proves it.

Contemptuous damages are the opposite case: a derisory sum awarded where the plaintiff's right was technically violated but the court thinks the suit should never have been brought. Chapter [Kinds of Damages] separates all three.

A worked example

Arun, a shareholder, is refused entry to a company's annual general meeting by a security guard acting on the company's instructions, although he holds a valid entry card. The resolutions passed at the meeting would have been passed anyway; his single vote could not have changed anything.

Has he lost anything? No, not in money and not in outcome.

Has a right of his been infringed? Yes, his right as a shareholder to attend and vote.

Does he have an action? Yes. This is injuria sine damno and the reasoning of Ashby v. White applies exactly: it is no answer to say that the vote would have made no difference, because on that argument a company could exclude every shareholder whose vote would not change a result.

What will he get? Probably nominal damages, and a declaration. If the exclusion was deliberate and humiliating, a court may award more, as in Bhim Singh.

Distinctions that carry marks

What it does NOT mean

It does not mean every tort is actionable without proof of damage. Negligence and nuisance both require damage. The maxim applies to the torts that are actionable per se.

It does not mean the damages will be small. Bhim Singh is the answer to that.

It does not mean the plaintiff can invent a right. He must identify a legal right, which is why the maxim and its opposite are always taught together.

It does not mean a constitutional claim is the same as a tort claim. Compensation under articles 32 and 226 is a public law remedy, distinct from the private law action, as chapter [Constitutional Tort] explains.

Quick revision

1. Injuria sine damno: violation of a legal right without loss; actionable, because the law presumes damage.
2. Torts actionable per se: trespass to land, to the person and to goods, libel, and the four kinds of slander actionable without special damage.
3. Ashby v. White (1703): an elector wrongfully prevented from voting recovered damages although his candidate won.
4. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494: Rs. 50,000 for four days of unlawful detention, articles 21 and 22(2) violated.
5. Damages may be nominal, substantial or contemptuous, depending on the gravity of the violation and the conduct of the parties.
6. The maxim is the mirror of damnum sine injuria, and every problem on either is solved by asking which legal right was infringed.

Test yourself

1. Explain injuria sine damno with decided cases. The maxim means the violation of a legal right without any accompanying loss. Where a right is infringed the law presumes damage, so the action lies without proof of loss, and the torts that are actionable per se, trespass to land, to the person and to goods, and libel, all depend on it. In Ashby v. White, decided in 1703, a qualified elector was wrongfully prevented from voting; the candidate he supported was elected anyway, so he lost nothing, and the court nevertheless decreed damages, applying ubi jus ibi remedium. In Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, a member of the Legislative Assembly was arrested and kept in custody for four days without being produced before a magistrate; by the time the case was decided he was free, and the Supreme Court still awarded Rs. 50,000, holding that the invasion of his rights under articles 21 and 22(2) could not be wished away by his release.

2. "Where a legal right is violated the law presumes damage." Explain. The proposition is the working content of injuria sine damno. Certain rights are so basic that their violation is treated as harm in itself, and no separate proof of loss is required: the right to possession of land, to bodily integrity and liberty, to possession of goods, and to reputation in the case of libel. If proof of loss were required, these rights would be unenforceable in exactly the cases where enforcement matters most, since a trespasser who damages nothing and a detaining officer who feeds his prisoner well would both be immune. The presumption also explains why the damages are often nominal: the object of the action is vindication rather than compensation.

3. Are the damages in a case of injuria sine damno always nominal? No. They are nominal where the violation is technical and the plaintiff has suffered nothing beyond the infringement itself, and a token sum is enough to mark the right. They are substantial where the violation is itself serious, and the leading Indian example is Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, where Rs. 50,000 was awarded for four days of deliberate and mala fide detention. A court may also award contemptuous damages, a derisory sum, where the right was technically infringed but the suit should not have been brought.

4. Distinguish the two maxims with an example of each. Injuria sine damno is the violation of a legal right without loss and is actionable: an elector wrongly turned away in Ashby v. White, or a legislator unlawfully detained in Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494. Damnum sine injuria is loss without the violation of a legal right and is not actionable: a schoolmaster whose pupils leave for a lawful rival school in the Gloucester Grammar School case, or plaintiffs whose religious feelings are hurt by a film in Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13. In the first there is a wrong without harm; in the second, harm without a wrong. The single question that separates them is whether a legal right of the plaintiff was infringed.

Why it matters here. It is ubi jus ibi remedium applied to a constitutional right: the right in article 21 existed, the existing remedy of release was useless to a man already free, so the Court made a remedy fit the right.

Facts. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, decided on 5 November 1993. Allottees complained to the consumer forums that statutory development authorities had delayed possession of houses, failed to complete flats and built defectively. The authorities argued that a statutory body performing a statutory function was outside the Consumer Protection Act.

Held. Housing construction by a statutory authority or a private builder is a service under the Act, and a complaint was maintainable. A Commission may award compensation for harassment, mental agony and oppression by a public functionary, on a finding recorded carefully and not lightly; and where the compensation comes out of public funds the department must recover it from the officers responsible, apportioned among them. In one appeal the Court directed the Lucknow Development Authority to fix responsibility within six months and to recover the Rs. 10,000 awarded from the officers' salary.

Why it matters here. It is the judgment in which the Supreme Court invokes ubi jus ibi remedium by name, tracing it through Ashby v. White, and it shows the maxim being used to give a remedy against a public body in a forum designed for consumers.

And the constitutional line continues. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, holds that a claim in public law for compensation for the contravention of a fundamental right is a remedy available under articles 32 and 226, distinct from and in addition to the private law remedy in tort, and that sovereign immunity does not apply to it. Chapter [Constitutional Tort] takes that line in full.

The limits of the maxim

An answer that only praises the maxim is a weak answer. The limits are as examinable as the principle.

It applies to legal rights only. A moral or a social claim is outside it. A person who is treated ungratefully has no remedy, because he has no right.

It does not create rights. It presupposes a right and supplies enforcement. It cannot be used to argue that because a harm ought to be remedied a right must exist.

It yields where the law itself provides otherwise. Where a statute gives a right and prescribes a particular remedy, that remedy is ordinarily the only one, and where the law bars a claim by limitation the maxim does not revive it.

It does not touch damnum sine injuria. Where no right is infringed there is nothing for the maxim to work on, however great the loss.

A worked example

Seema is refused a caste certificate to which she is entitled under a statutory scheme, and the refusal is deliberate. There is no provision in the scheme for compensation, and the only remedy named is an appeal to a departmental authority, which takes two years and eventually orders the certificate to be issued. By then she has lost her place in a college.

Is there a right? Yes, a statutory right to the certificate.

Is the named remedy adequate? It got her the certificate, and it did nothing about the loss of the college place.

Does the maxim help? It is the argument for a further remedy: a writ petition under article 226 in which compensation may be claimed for the arbitrary exercise of power, on the reasoning of Rudul Sah and Lucknow Development Authority v. M.K. Gupta, where the Supreme Court held that a public authority whose functionary causes harassment may be made to compensate and to recover the amount from the officer responsible.

Where does it stop? If Seema had no right to the certificate at all, the maxim gives her nothing, however badly she was treated. The maxim enforces rights; it does not invent them.

What it does NOT mean

It does not mean every wrong has a remedy in tort. Some wrongs are remedied by a criminal prosecution, some by a statutory forum, some by a writ.

It does not mean a court may ignore limitation or jurisdiction. The maxim operates within the law, not against it.

It does not mean the remedy must be damages. Injunction, restitution, a declaration or a direction may be the appropriate remedy.

It does not answer the question whether a right exists. That is the prior question and the maxim is silent on it.

Quick revision

1. Ubi jus ibi remedium: where there is a right there is a remedy. Jus is a legal right; remedium is the means of enforcing it.
2. It supports the torts actionable without proof of damage, and it is the companion of injuria sine damno.
3. Ashby v. White (1703): damages to an elector wrongfully prevented from voting.
4. Rudul Sah v. State of Bihar, AIR 1983 SC 1086: compensation under article 32 for fourteen years of illegal detention, because release alone was no remedy.
5. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787: the maxim invoked by name; compensation against a public authority, recoverable from the erring officers.
6. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960: public law compensation is distinct from the private law action and is not met by sovereign immunity.
7. Limits: legal rights only; it creates no rights; it yields to a statutory scheme and to limitation; it has nothing to work on in damnum sine injuria.

Test yourself

1. Explain the maxim ubi jus ibi remedium and its application in India. The maxim means that where the law confers a right it also provides the means of enforcing it, since a right no court will protect is not a right at all. Jus means a legal right and remedium the means of redress, so the maxim is confined to legal rights and does not extend to moral claims. Its classical application is Ashby v. White, decided in 1703, where an elector wrongly prevented from voting recovered damages although the result was unaffected. Its most important Indian application is constitutional: in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, the Supreme Court held that its power under article 32 is not confined to ordering release and awarded compensation for fourteen years of illegal detention, saying that otherwise the right would be a paper guarantee. In Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, the Court invoked the maxim by name in holding that a consumer forum may compensate a citizen harassed by a public authority, and that the amount must be recovered from the officers responsible.

2. What are the limitations of the maxim? Four. It applies only to legal rights, so a moral or social grievance is outside it. It does not create rights; it presupposes them and supplies enforcement, so it cannot be used to argue backwards from a harm to a right. It yields to the law itself: where a statute confers a right and prescribes a remedy, that remedy is ordinarily exclusive, and the maxim does not defeat a bar of limitation or a want of jurisdiction. And it has nothing to operate on where no right has been infringed, which is damnum sine injuria, so that a trader ruined by lawful competition gets nothing from it.

3. How does the maxim relate to injuria sine damno? They are two sides of the same proposition. Injuria sine damno says that the violation of a legal right is actionable without proof of loss, because the law presumes damage. Ubi jus ibi remedium explains why that must be so: if proof of loss were required, a right whose violation caused no measurable loss would be unenforceable, and an unenforceable right is not a right. Ashby v. White is the case in which both appear together, and the Supreme Court of India described that decision, in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, as an application of ubi jus ibi remedium in favour of the elector.

4. It is no defence to an unlawful act. Consent cannot make lawful what the law forbids.

5. It does not defeat a statutory duty. Where a statute imposes a duty for the protection of a class of persons, a member of that class cannot contract out of it. Sections 146 and 147 of the Motor Vehicles Act 1988 make third-party insurance compulsory precisely so that the protection cannot be given away, and chapter [Compulsory Third-Party Insurance] works that out.

6. Negligence beyond the risk consented to. A patient who consents to an operation does not consent to it being performed carelessly, and Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, makes the point in terms for a hotel guest.

The case that shows the last limit

Facts. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, decided on 3 January 1997. A German co-pilot staying as a guest at a five star hotel in New Delhi dived from the hotel's three metre spring board into its swimming pool, struck his head on the bottom because the pool was too shallow for that board, and was paralysed. He suffered for thirteen years and died before the suit was decided.

Held. A five star hotel charging a high price owes a correspondingly high degree of care as to the safety of its structure and services. The pool did not meet even the minimum, let alone the preferred, standards of safety, and the spring board should have been removed by 1970 when the standards were revised. The Court held in terms that a general notice that guests use the facilities at their own risk cannot soften the duty, since one who extends an invitation cannot then say that the invitee accepted the risk. The suit was decreed for Rs. 50 lakhs with interest.

Why it matters here. It is the answer to the argument that a notice or a disclaimer amounts to consent. A person who is invited to use a facility consents to its ordinary risks, not to a hidden defect the occupier knows about and does not fix.

A worked example

Girish attends a motor race. He buys a ticket which says on its back that spectators attend at their own risk. Three things happen.

One. A car spins off the track and injures him at a point where cars ordinarily leave the track in that kind of race. The defence succeeds. He knew the risk, and by taking his place he freely accepted the ordinary risks of watching motor racing.

Two. A car spins off because the organisers had not repaired a barrier they knew was broken. The defence is much weaker. He accepted the ordinary risks of the sport, not a risk created by the organisers' own negligence and hidden from him, which is the reasoning in Klaus Mittelbachert.

Three. Girish runs on to the track to pull an injured driver from a burning car and is himself burned. The defence fails altogether. A rescuer does not freely accept the risk; he responds to a danger the defendant created.

And the ticket? A notice can prove knowledge. It does not by itself prove free consent, and it cannot exclude a duty imposed by statute.

Distinctions that carry marks

What it does NOT mean

It does not mean a warning notice is a complete answer. Klaus Mittelbachert holds that a general disclaimer cannot soften the duty owed to an invitee.

It does not mean an employee consents to unsafe work. Continuing in employment under economic compulsion is not free consent.

It does not apply to a rescuer. The rescue rule is settled and it is the exception examiners ask about most.

It does not survive a statutory duty. Compulsory third-party insurance under sections 146 and 147 of the Motor Vehicles Act 1988 exists so that the protection cannot be waived.

Quick revision

1. Volenti non fit injuria: no injury is done to one who consents; it is a complete defence.
2. Two ingredients: knowledge of the nature and extent of the risk, and free and voluntary acceptance of it.
3. Scienti non fit injuria, sed volenti: knowledge is not consent.
4. Consent may be express or implied from conduct, and extends only to the ordinary risks of the activity.
5. Limits: consent must be free; no defence to an unlawful act; no defence against a rescuer; no defence to a statutory duty; no defence to negligence beyond the risk accepted.
6. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201: a general notice that guests use facilities at their own risk does not soften the duty; Rs. 50 lakhs decreed.
7. Sections 146 and 147 of the Motor Vehicles Act 1988 make third-party cover compulsory so that it cannot be given away.
8. Distinguish from contributory negligence: a complete defence against a reduction in damages.

Test yourself

1. Explain volenti non fit injuria and its limitations. The maxim means that no injury is done to one who consents, so a plaintiff who with full knowledge of a risk freely and voluntarily agreed to run it cannot sue for the harm it causes. Two ingredients are required: knowledge of the nature and extent of the risk, and free acceptance of it, since scienti non fit injuria, sed volenti means that knowledge alone is not consent. The consent may be express or implied from conduct, but extends only to the risks ordinarily incidental to the activity. The limits are five. Consent obtained by fraud or given under compulsion, including the economic compulsion of employment, is not free. Consent is no answer to an act that is itself unlawful. A rescuer who is injured saving life or property endangered by the defendant does not consent. A statutory duty cannot be contracted out of, which is why sections 146 and 147 of the Motor Vehicles Act 1988 make third-party insurance compulsory. And consent does not cover negligence beyond the accepted risk, as Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, holds.

2. Distinguish volenti non fit injuria from contributory negligence. Volenti non fit injuria asserts that the plaintiff agreed to run the risk, and if it is established it is a complete defence: the claim fails altogether. Contributory negligence asserts that the plaintiff failed to take reasonable care of his own safety, and where it is established the damages are reduced in proportion to his share of the fault rather than refused. The states of mind differ: volenti requires both knowledge and free consent, while contributory negligence requires neither, since a plaintiff who never adverted to the danger at all may still have been careless. Both must be pleaded and proved by the defendant.

3. Is a notice saying "enter at your own risk" a complete defence? No. Such a notice may prove that the plaintiff knew of a risk, but knowledge is not consent, and a notice cannot by itself establish that the plaintiff freely accepted a danger created by the defendant's own negligence. In Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, the Delhi High Court held in terms that a general caution notice cannot soften the higher degree of care owed by a five star hotel to its guests, since one who extends an invitation cannot then say the invitee accepted the risk. A notice also cannot exclude a duty imposed by statute for the protection of a class of persons.

4. Does volenti non fit injuria apply to a rescuer? No. A person who is injured while trying to save life or property endangered by the defendant's negligence has not freely accepted the risk; he acts under the compulsion of a moral or legal duty created by the defendant's own wrongdoing. The rule applies to a professional rescuer such as a police officer or fireman and to an ordinary bystander alike. To hold otherwise would be to make the law discourage rescue, and it would allow a wrongdoer to profit from the fact that somebody tried to undo the danger he created.

5. Acquiescence. Where the person injured stands by, with knowledge of his rights, and allows the other party to act on the assumption that no claim will be made, he may be precluded from suing later. Mere delay short of the limitation period is not acquiescence; there must be conduct from which assent can be inferred.

6. Judgment recovered. Once a court has given judgment on a claim, the same claim cannot be brought again. The Latin tag is transit in rem judicatam, the cause of action passes into the thing adjudged. Two consequences follow: a plaintiff must claim all his damages in one action, and a single wrongful act cannot be split into several suits. Where a single act violates two distinct rights, for example an assault that both injures and defames, separate actions may lie.

7. Limitation. The expiry of the period prescribed by the Limitation Act 1963 bars the suit. Section 3 requires a court to dismiss a suit filed after the period even where limitation is not set up as a defence. Chapter [Limitation in an Action for Tort] works out the periods.

The one mode that extinguishes the RIGHT and not merely the remedy

The rule everywhere else is that limitation bars the remedy and leaves the right alive. Section 27 of the Limitation Act 1963 is the exception, and it is the reason MU's topic is called "extinguishment": at the determination of the period limited for instituting a suit for possession of any property, the person's right to that property is itself extinguished.

So a trespasser who is left in adverse possession of land beyond the period does not merely become immune from a suit; the owner's title goes. That is extinguishment in the strict sense, and it is worth knowing that it applies to possession of property and not to a claim for damages.

A worked example

Latha's car is damaged when Naveen reverses into it in 2023. Consider five different endings.

Ending one. Naveen offers Rs. 40,000 and Latha accepts it and is paid. That is accord and satisfaction, and the liability is discharged. If he had promised the money and never paid, there would be accord without satisfaction and Latha could sue on the original claim.

Ending two. Latha writes to Naveen saying she will not pursue the matter. That is a release, and unless it was obtained by fraud or coercion the claim is gone.

Ending three. Naveen sells the wreck of Latha's car and keeps the money. Latha sues him for the price rather than for the damage. She has waived the tort and elected the other remedy.

Ending four. Latha sues for the cost of repairs, wins, and then discovers she also had a claim for loss of use during the repairs. She cannot bring a second suit: the cause of action has passed into the judgment.

Ending five. Latha does nothing until 2029. Her suit is barred by limitation, and section 3 of the Limitation Act 1963 obliges the court to dismiss it even if Naveen never raises the point.

Distinctions that carry marks

What it does NOT mean

Limitation does not usually destroy the right. It bars the remedy. Section 27 of the Limitation Act 1963 is the exception, and it concerns suits for possession of property.

Delay is not acquiescence. Acquiescence needs knowledge of the right and conduct from which assent can be inferred.

An unpaid promise is not satisfaction. Accord without satisfaction leaves the claim alive.

Death does not discharge everything. The Fatal Accidents Act 1855 and section 166(5) of the Motor Vehicles Act 1988 have cut the old maxim down a long way.

Quick revision

1. A defence denies that liability arose; a discharge ends a liability that did.
2. Seven modes: death of a party, waiver, accord and satisfaction, release, acquiescence, judgment recovered, limitation.
3. Actio personalis moritur cum persona is cut down by sections 1A and 2 of the Fatal Accidents Act 1855 and by section 166(5) of the Motor Vehicles Act 1988.
4. Accord is the agreement, satisfaction is its performance; accord alone discharges nothing.
5. Waiver is an election between inconsistent remedies.
6. Transit in rem judicatam: a plaintiff must claim all his damages in one suit.
7. Section 3 of the Limitation Act 1963 obliges a court to dismiss a time-barred suit even if the defence is not pleaded.
8. Section 27 of that Act extinguishes the right itself where the suit is for possession of property.

Test yourself

1. How is liability in tort extinguished or discharged? By seven modes. The death of a party, so far as the action does not survive, though the Fatal Accidents Act 1855 and, for motor accidents, section 166(5) of the Motor Vehicles Act 1988 have cut this down. Waiver, where a plaintiff having two inconsistent remedies elects one and abandons the other. Accord and satisfaction, where he agrees to accept something in place of his right of action and that agreement is performed; accord without satisfaction discharges nothing. Release, a voluntary relinquishment of the right of action, which is ineffective if obtained by fraud or coercion. Acquiescence, where with knowledge of his rights he stands by and allows the other party to act on the footing that no claim will be made. Judgment recovered, since the cause of action passes into the judgment and cannot be sued on again. And limitation, since section 3 of the Limitation Act 1963 obliges a court to dismiss a suit brought after the prescribed period.

2. Distinguish a general defence from a discharge of tort. A general defence denies that liability ever arose: volenti non fit injuria, inevitable accident, act of God and statutory authority all say that what the defendant did was not a wrong at all, and the facts that establish them belong to the incident itself. A discharge admits that liability arose and asserts that it has since come to an end, and the facts that establish it are later than the wrong: a payment accepted, a release given, a judgment obtained, a period allowed to expire. The distinction decides how the case is pleaded and proved, and it also decides the order in which a court takes the questions, since a discharge is irrelevant unless liability is first established.

3. Explain accord and satisfaction with an illustration. Accord is the agreement by which the person wronged accepts something in substitution for his right of action; satisfaction is the actual performance of that agreement. Both are needed. If a car owner whose vehicle has been damaged agrees to take Rs. 40,000 in full settlement and the money is paid, the liability is discharged and no suit lies. If the agreement is made but the money is never paid, there is accord without satisfaction, the discharge fails and the original claim survives, so the owner may sue on the tort. A satisfaction accepted from one of several joint tortfeasors ordinarily discharges the others as well, because the plaintiff is entitled to one satisfaction only.

4. Does limitation destroy the right or only the remedy? As a rule it bars the remedy and leaves the right intact, so a time-barred debt may still be paid voluntarily and a time-barred claim may be set up as a defence in some circumstances. Section 3 of the Limitation Act 1963 gives the bar teeth by requiring a court to dismiss a suit filed after the prescribed period even where limitation is not pleaded. The exception is section 27, which provides that at the determination of the period limited for instituting a suit for possession of property, the right to the property is itself extinguished. That is why the syllabus calls this topic extinguishment: for possession, the right and not merely the remedy is lost.

Read the pattern rather than memorising the table. The personal torts get one year: false imprisonment, malicious prosecution, libel, slander. Wrongs to property get three years. Claims through a dead person get two.

The three sections that move the starting point

Section 22, continuing torts. In the case of a continuing tort a fresh period of limitation begins at every moment during which the tort continues. A continuing trespass or a continuing nuisance therefore never becomes wholly time barred while it lasts, though damages will be confined to the period within limitation.

Section 23, wrongs not actionable without special damage. Where an act gives no cause of action unless some specific injury results, the period is computed from the time the injury results, not from the act. This matters for slander that is not actionable in itself and for negligence where the damage appears late.

Section 17, fraud or mistake. Where the suit is based on the defendant's fraud, or the right of action is concealed by fraud, or relief is claimed from the consequences of a mistake, the period does not begin until the plaintiff has discovered the fraud or mistake or could with reasonable diligence have discovered it.

The two special statutory periods

A motor accident claim: six months. Section 166(3) of the Motor Vehicles Act 1988, inserted by the amendment of 2019 and brought into force on 1 April 2022, provides that no application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. The history matters and is examinable: the Act originally allowed six months with power to condone delay, that limitation was removed altogether in 1994, and for twenty-eight years a claim could be filed at any time. The six month limit is back, and chapter [The Application for Compensation] works out what it means in practice.

A consumer complaint: two years. Section 69(1) of the Consumer Protection Act 2019 provides that no Commission shall admit a complaint unless it is filed within two years from the date on which the cause of action arose. Section 69(2) allows a complaint to be entertained after that period if the complainant satisfies the Commission that he had sufficient cause for not filing in time, provided the Commission records its reasons for condoning the delay.

The rule that goes further than barring the suit

Section 27 provides that at the determination of the period limited for instituting a suit for possession of any property, the right to that property is extinguished. Everywhere else limitation bars the remedy; here it destroys the right. This is why MU's topic is called extinguishment of liability, and the point is worth a sentence in any answer on the subject.

A worked example

Prakash is arrested without warrant on 1 March 2024 and released on 10 March 2024. On 12 March 2024 a newspaper prints that he is a smuggler. He is prosecuted on the newspaper's information and is acquitted on 5 December 2025. A neighbour has been dumping rubble on his land since January 2024 and continues to do so.

False imprisonment. Article 73: one year from the end of the imprisonment, so from 10 March 2024, expiring 10 March 2025.

Libel. Article 75: one year from publication, so from 12 March 2024.

Malicious prosecution. Article 74: one year from the acquittal, so from 5 December 2025, expiring 5 December 2026. Note that this claim could not even have been brought earlier, because a favourable termination is an ingredient of the tort.

Trespass to land. Article 87 gives three years from the date of the trespass, but section 22 makes this a continuing tort, so a fresh period runs every day the rubble stays.

And if he had been injured by a lorry on 1 March 2024, section 166(3) of the Motor Vehicles Act 1988 would require his claim petition within six months, that is by 1 September 2024.

What it does NOT mean

It does not mean a court may ignore limitation because the claim is just. Section 3 makes dismissal mandatory.

It does not mean section 5 can extend the period for a suit. Section 5 applies to appeals and applications, not to suits.

It does not mean time always runs from the wrongful act. Articles 73, 74 and 76, and sections 17, 22 and 23, all move the starting point.

It does not mean the twelve month rule under the Fatal Accidents Act survives. Those words were omitted in 1871; article 82 gives two years from the date of death.

Quick revision

1. Section 3: a suit filed after the prescribed period must be dismissed even if limitation is not pleaded.
2. Sections 4 and 5: reopening after a court holiday; sufficient cause for appeals and applications, not for suits.
3. One year: false imprisonment (73), malicious prosecution (74), libel (75), slander (76), inducing breach (78), seizure and distress (79 and 80).
4. Two years: claims by representatives, including the Fatal Accidents Act claim (82).
5. Three years: obstruction and diversion of a watercourse (85 and 86), trespass to immovable property (87), infringement of copyright (88), waste (89), wrongful injunction (90), movable property (91).
6. Section 22: a fresh period at every moment of a continuing tort.
7. Section 23: time runs from the injury where the wrong is not actionable without special damage.
8. Section 17: fraud or mistake postpones the start until discovery.
9. Section 166(3) of the Motor Vehicles Act 1988: six months, in force from 1 April 2022.
10. Section 69 of the Consumer Protection Act 2019: two years, with delay condonable for sufficient cause recorded in writing.
11. Section 27: the right to property, not merely the remedy, is extinguished.

Test yourself

1. State the periods of limitation for actions in tort under the Limitation Act 1963. The periods are in Part VII of the Schedule. Articles 72 to 81 prescribe one year: for an act done in pursuance of an enactment, for false imprisonment running from the end of the imprisonment, for malicious prosecution running from the acquittal or other termination, for libel from publication, for slander from the speaking of the words or, where they are not actionable in themselves, from the resulting special damage, for loss of service by seduction, for inducing a breach of contract, for illegal distress and for wrongful seizure under legal process. Articles 82 to 84 prescribe two years, including the claim by representatives under the Fatal Accidents Act 1855 from the date of the death. Articles 85 to 91 prescribe three years, covering obstruction and diversion of a watercourse, trespass to immovable property, infringement of copyright, waste, injury by a wrongful injunction and wrongs to movable property.

2. From what point does time run in an action for malicious prosecution, and why? From the date on which the plaintiff is acquitted or the prosecution is otherwise terminated in his favour, under article 74. The reason is that a favourable termination of the prosecution is an ingredient of the tort itself, so no cause of action exists until it happens. Running time from the launching of the prosecution would bar many claims before they arose. The same logic explains article 73, which runs from the end of the imprisonment rather than from the arrest.

3. What is the effect of section 3 of the Limitation Act 1963? It makes limitation a matter for the court and not merely a plea for the defendant. Every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. A defendant who forgets to plead the point therefore does not lose it, and a court which notices that a suit is out of time must dismiss it even if both sides are content to proceed. Section 4 relieves a plaintiff whose period ends on a day the court is closed, and section 5 permits an appeal or application, but not a suit, to be admitted late for sufficient cause.

4. What are the special limitation periods for a motor accident claim and a consumer complaint? For a motor accident claim, section 166(3) of the Motor Vehicles Act 1988 provides that no application for compensation shall be entertained unless it is made within six months of the occurrence of the accident. That sub-section was inserted by the amendment of 2019 and came into force on 1 April 2022; between 1994 and that date there was no period of limitation at all, so a claim could be filed at any time. For a consumer complaint, section 69(1) of the Consumer Protection Act 2019 requires the complaint to be filed within two years from the date on which the cause of action arose, and section 69(2) allows a Commission to entertain it later if the complainant shows sufficient cause and the Commission records its reasons for condoning the delay.

5. Distinguish barring the remedy from extinguishing the right. The general rule of the Limitation Act 1963 is that the expiry of the period bars the remedy and leaves the right alive, which is why a time-barred debt may be paid voluntarily and why the right may still support a defence. Section 27 is the exception: at the determination of the period limited for instituting a suit for possession of any property, the right to that property is extinguished. So an owner who allows the period for recovering possession to run out loses his title, not merely his suit, which is the sense in which liability is truly extinguished rather than merely unenforceable.

4. Act of God

An act of God, or vis major, is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. Two elements are required: the event must be due to natural causes without human intervention, and it must be so extraordinary that it could not reasonably have been foreseen and guarded against.

Facts. Ramalinga Nadar v. Narayana Reddiar, AIR 1971 Ker 197, decided on 10 December 1970. The plaintiff booked eighteen bags of green gram with a lorry service for carriage from Kottar to Quilon. On the way the lorry was waylaid by a procession taken out as part of a food agitation and the mob robbed the goods. There was no negligence on the carrier's part and he could not have prevented the loss.

Held. The carrier was liable. A common carrier is not a mere bailee but an insurer of the goods, answerable for their loss even without negligence, the only exceptions being act of God and the King's enemies. The destructive acts of an unruly mob are not an act of God: the expression is confined to inevitable accidents occasioned by the elementary forces of nature unconnected with the agency of man, and it would be incongruous to apply it to an accident originating wholly or partly in human agency.

Why it matters here. It fixes the boundary of the defence precisely where students blur it. Riots, mobs, wars and sabotage are not acts of God however unforeseeable they are, because a human being caused them. Storm, flood, earthquake, lightning and extraordinary rainfall are the material of the defence.

And even a natural event is not an act of God if it was foreseeable. Ordinary monsoon rain in Mumbai is not an act of God; a cloudburst without precedent may be.

A worked example

A wall of Rekha's godown collapses in a storm and damages Suresh's shop next door.

Ask first what the storm was. If it was rainfall of an intensity never before recorded in that district, the defence of act of God is open, because the cause was purely natural and no reasonable foresight would have provided against it.

Ask next what the wall was. If the wall was already cracked and Rekha knew it, the storm is not the cause the law looks at: a wall that would have stood had it been maintained falls because it was not maintained, and the defence fails. This is where Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, bites, because a structure eighty years old, never tested, that falls is evidence of negligence in itself.

Change the cause. If the wall was pulled down by a mob during a riot, there is no act of God at all, on the reasoning of Ramalinga Nadar: the cause was human. Rekha may still say the collapse was an inevitable accident so far as she is concerned, and whether that succeeds depends on whether ordinary care on her part could have prevented it.

Distinctions that carry marks

What it does NOT mean

Act of God does not mean any disaster. A riot, a war or an act of sabotage is not an act of God, because a human being caused it, as Ramalinga Nadar holds.

Inevitable accident does not mean unavoidable by anybody. It means unavoidable by this defendant exercising ordinary care.

Neither defence answers absolute liability. M.C. Mehta v. Union of India, AIR 1987 SC 1086, holds that an enterprise carrying on a hazardous activity cannot rely on any of the exceptions available under Rylands v. Fletcher.

"The plaintiff was doing something illegal" is not by itself a defence. The illegality must be so connected with the claim that relief cannot be given without relying on it.

Quick revision

1. A general defence may be raised in any tort; the defendant pleads and proves it.
2. Volenti non fit injuria: knowledge plus free consent; complete defence; not against a rescuer or a statutory duty.
3. Ex turpi causa non oritur actio: the plaintiff's own illegality defeats him only where the claim depends on it.
4. Inevitable accident: not avoidable by ordinary care, caution and skill; it is really a denial of negligence and is no answer to strict or absolute liability.
5. Act of God: natural forces alone, and so extraordinary that no reasonable foresight could provide against it.
6. Ramalinga Nadar v. Narayana Reddiar, AIR 1971 Ker 197: a mob is not an act of God; a common carrier is an insurer of the goods.
7. Act of God is an exception to strict liability under Rylands v. Fletcher but not to absolute liability under M.C. Mehta.

Test yourself

1. What are the general defences in tort? They are ten: volenti non fit injuria, the plaintiff being himself a wrongdoer, inevitable accident, act of God, private defence, necessity, mistake, statutory authority, judicial and quasi-judicial acts, and parental or quasi-parental authority. Each may be raised in an action for any tort, unlike a specific defence such as truth in defamation or prescription in nuisance, which belongs to a single wrong. The burden of pleading and proving a general defence lies on the defendant, and each of them denies liability altogether rather than merely reducing the damages, which is what distinguishes them from contributory negligence.

2. Explain the defence of act of God with a decided case. An act of God, or vis major, is an operation of natural forces so unexpected that no human foresight or skill could reasonably be expected to anticipate it. Two things are required: the cause must be natural and unconnected with human agency, and the event must be so extraordinary that it could not reasonably have been foreseen and provided against. In Ramalinga Nadar v. Narayana Reddiar, AIR 1971 Ker 197, goods entrusted to a lorry service were robbed by an unruly mob during a food agitation, and the carrier pleaded that the loss was beyond his control. The Kerala High Court held him liable, since a common carrier is an insurer of the goods and only act of God and the King's enemies excuse him, and held that the acts of a mob are not an act of God because the expression covers only inevitable accidents caused by the elementary forces of nature without the agency of man.

3. Distinguish inevitable accident from act of God. Both assert that the harm could not have been prevented, but they differ in cause and in strictness. An inevitable accident may have a human or a natural cause, and the test is whether the defendant, using ordinary care, caution and skill, could have avoided it; it is in substance a denial of negligence. An act of God must be caused by natural forces alone without human intervention, and must be so extraordinary that no reasonable foresight could have provided against it. The practical difference appears in strict liability: act of God is one of the recognised exceptions to the rule in Rylands v. Fletcher, while inevitable accident is no answer to it at all, and neither answers absolute liability under M.C. Mehta v. Union of India, AIR 1987 SC 1086.

4. "A plaintiff who was breaking the law when he was injured cannot recover." Comment. The statement is too wide. The maxim ex turpi causa non oritur actio prevents a plaintiff from founding a claim on his own illegal act, but the test is whether the claim depends on the illegality, not whether the plaintiff happened to be acting unlawfully at the time. A trespasser who is deliberately shot by an occupier recovers, because his trespass gives no licence to shoot him; a burglar injured by a defective staircase inside the house he has broken into may fail, because his presence there rests entirely on the burglary. The court asks whether relief can be given without appearing to reward the illegality.

3. Mistake

The general rule is that mistake is no defence in tort, whether the mistake is of fact or of law. A person who takes another's umbrella honestly believing it to be his own has still committed a trespass to goods, and a person who enters the wrong plot honestly believing it to be his own has still trespassed.

The exceptions are the torts in which a particular state of mind is an ingredient.

Malicious prosecution requires the absence of reasonable and probable cause, so a prosecution launched on an honest and reasonable mistake fails at that element.

Deceit requires a false statement made knowingly, or without belief in its truth, or recklessly; an honest belief in the truth of the statement is therefore a complete answer.

Qualified privilege in defamation is not lost by an honest mistake, because what destroys it is malice in fact.

4. Statutory authority

Where the legislature authorises an act, the doing of that act is not a tort, and the person injured has such compensation as the statute provides and no more. The authority extends to the necessary consequences of what is authorised.

Absolute and conditional authority. Where a statute authorises a thing to be done absolutely, no action lies even for the inevitable harm it causes. Where it authorises a thing conditionally, that is, only if it can be done without causing harm, the person doing it must so conduct himself as to avoid the harm.

Negligence is not authorised. A statute that permits a railway to run trains does not permit it to run them carelessly, and the defence fails where the harm was caused not by the authorised act but by the negligent way it was done.

And a statutory power is not always a statutory duty. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, decided on 17 January 1997, is the Indian authority.

Facts. A pedestrian was killed when a roadside tree maintained by the Municipal Corporation fell on him. The trial court and the High Court held the Corporation liable, reasoning that its statutory power to plant and maintain roadside trees carried a corresponding absolute duty to keep them safe, so the claimants need not prove why the tree fell.

Held. The appeal was allowed and the decrees were set aside. A duty of care must be established before liability in negligence can arise, and a duty is not fastened on a public authority merely because it has a statutory power. The fall of the tree was not reasonably foreseeable by the Corporation, the damage was too remote, and no common law duty of the kind alleged arose. Because the claimants were poor and the money had probably been spent, the Court directed that the Rs. 45,000 already paid should not be recovered from them.

Why it matters here. It separates power from duty, which is the point at which most answers on statutory authority go wrong, and it should be read against Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, where a public body was held liable for a structure it had never inspected.

5. Judicial and quasi-judicial acts

A judge is not liable in tort for anything done in the discharge of judicial duty. The protection now comes from section 3 of the Judges (Protection) Act 1985, which provides that no court shall entertain or continue any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed, done or spoken when acting or purporting to act in the discharge of his official or judicial duty.

The Judicial Officers Protection Act 1850, which most books on this syllabus still cite, was repealed by the Repealing and Amending Act 2023 with effect from 17 December 2023. Chapter [Who May Not Be Sued] carries the detail.

The protection extends to persons exercising quasi-judicial functions, that is, functions of deciding between parties after hearing them, and it exists so that a decision is taken on the law and not out of fear of the loser. Article 361 of the Constitution gives a separate and wider protection to the President and the Governors.

6. Parental and quasi-parental authority

A parent, and a person standing in the place of a parent such as a schoolteacher, may do what is reasonably necessary for the correction, control and welfare of a child, and what would otherwise be a trespass to the person is not actionable. The authority is limited by reasonableness and by the purpose: it justifies restraint and moderate correction for the child's benefit, and never cruelty. What is reasonable has narrowed a great deal, and statutes protecting children now confine it much further than the old cases did.

A worked example

A municipality is authorised by statute to lay a water main along a street. While the work is going on:

One. The vibration of the machinery cracks a shopkeeper's wall. If the cracking is an inevitable consequence of laying a main by any reasonable method, statutory authority is a defence and the shopkeeper's remedy, if any, is the compensation the statute provides.

Two. The contractor leaves an unlit trench across the footpath at night and a passer-by falls in. Statutory authority is no defence: the statute authorised the main, not the negligence.

Three. A workman pushes away a man who is swinging a rod at him, and the man falls and is hurt. Private defence answers the claim if the force used was necessary and proportionate.

Four. The workmen break down the door of an empty house to stop a fire spreading from the trench. Necessity answers the claim, because the harm prevented was greater than the harm done and they acted reasonably.

What it does NOT mean

Statutory authority does not authorise negligence. It covers the act and its necessary consequences, not a careless way of doing it.

A statutory power is not a statutory duty. Rajkot Municipal Corporation holds that a duty of care must be established independently.

Mistake is not generally a defence. It excuses only where the tort itself requires a state of mind that the mistake negatives.

Private defence is not revenge. Force used after the danger has passed is not defensive and is itself a tort.

Quick revision

1. Private defence: reasonable and proportionate force for person or property; sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023 state the same right in the penal law.
2. Necessity: a lesser harm to prevent a greater; usually against an innocent person; no defence if the defendant created the emergency.
3. Mistake: generally no defence; excuses in malicious prosecution and deceit, where the required state of mind is absent.
4. Statutory authority: covers the authorised act and its necessary consequences; absolute authority excuses inevitable harm, conditional authority does not; negligence is never authorised.
5. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552: a statutory power does not by itself create a duty of care; the appeal was allowed.
6. Judicial acts: section 3 of the Judges (Protection) Act 1985; the Judicial Officers Protection Act 1850 was repealed in 2023; article 361 protects the President and Governors.
7. Parental and quasi-parental authority: reasonable correction and control for the child's welfare only.

Test yourself

1. Explain statutory authority as a defence in tort. Where the legislature authorises an act, doing that act is not a tort, and the injured person has only such compensation as the statute gives. The authority extends to the necessary consequences of what was authorised, so harm that cannot be avoided if the authorised thing is done at all is not actionable. The distinction between absolute and conditional authority matters: where the statute authorises the act absolutely, inevitable harm is excused; where it authorises it only if it can be done without injury, the actor must so conduct himself as to avoid injury. Negligence is never authorised, so the defence fails where the harm flowed from a careless manner of doing the authorised act. And a statutory power is not a statutory duty: in Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, the Supreme Court set aside decrees against a corporation for a falling roadside tree, holding that a duty of care must be established and is not created merely by the existence of a power.

2. Is mistake a defence in tort? As a general rule it is not, whether the mistake is of fact or of law. A person who honestly believes goods to be his own still commits trespass to goods by taking them, and one who honestly believes land to be his own still trespasses by entering it, because those torts require only an intentional act and not a guilty mind. Mistake operates only where the tort itself requires a particular state of mind which the mistake negatives. In malicious prosecution the plaintiff must prove the absence of reasonable and probable cause, so a prosecution launched on an honest and reasonable mistake is not actionable. In deceit the statement must be made knowingly, or without belief in its truth, or recklessly, so honest belief is a complete answer. And qualified privilege in defamation survives an honest mistake, since only malice in fact destroys it.

3. What is the extent of the right of private defence in tort? A person may use force to defend his own body, another's body, and property in his possession against an unlawful attack, and the same right is declared for the criminal law by sections 34 and 35 of the Bharatiya Nyaya Sanhita 2023. The force must be necessary, so that if the harm can be avoided without force none may be used, and it must be proportionate to the threat, judged by what the defender reasonably apprehended rather than by the outcome. Property may be defended, but not by force intended to cause death. The right ends when the danger ends: force used afterwards is retaliation and is itself a tort.

4. Explain necessity, and distinguish it from private defence. Necessity excuses an act that would otherwise be a tort where it was done to prevent a greater harm, as where a house is pulled down to stop a fire spreading, cargo is jettisoned to save a ship, or a surgeon operates on an unconscious patient to save life. The harm prevented must be greater than the harm caused, the defendant must have acted reasonably on the facts as they appeared, and the defence is not open to a person who created the emergency himself. It differs from private defence in the person against whom it operates: private defence is directed against a wrongdoer and answers his own attack, while necessity is usually exercised against an innocent person or his property, which is why the courts confine it narrowly.

Assault and battery are constantly confused, and in ordinary speech "assault" is used for both. In law an assault may occur without any touching at all, and a battery may occur without any prior assault, as where a man is struck from behind and never saw it coming.

The same conduct is also a crime

The penal law protects the same interests, and the current statute is the Bharatiya Nyaya Sanhita 2023, in force since 1 July 2024.

Section 130 defines assault and section 129 defines criminal force; section 131 provides that whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person is punishable.

Section 127 deals with wrongful confinement, which is the criminal counterpart of false imprisonment.

The two proceedings are independent, as chapter [Tort Distinguished from Crime] explains: the civil action compensates the person restrained, the prosecution punishes.

The constitutional dimension in India

Unlawful arrest and detention in India are not only torts. They violate article 21, which protects life and personal liberty, and article 22, which requires an arrested person to be produced before a magistrate within twenty-four hours. The consequence is that a person unlawfully detained has two routes: a suit for false imprisonment, and a petition under article 32 or 226 for compensation.

Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, and Rudul Sah v. State of Bihar, AIR 1983 SC 1086, are the leading examples, and both are worked in chapter [False Imprisonment] and chapter [Constitutional Tort].

A worked example

At a crowded railway platform, five things happen to Nandini in one minute.

One. A man raises his fist at her from two feet away and she steps back in fear. That is an assault: reasonable apprehension of immediate force, with no touching.

Two. He then grabs her wrist. That is a battery: force actually applied without consent or justification.

Three. In the struggle he tears her earlobe permanently. Whether that is mayhem depends on the old test of a member useful in fighting, which chapter [Mayhem] examines; it is certainly an aggravated battery.

Four. A guard, believing her to be the aggressor, locks her in the station office for an hour. That is false imprisonment unless the guard can justify the detention in law.

Five. A porter, hurrying past with a trolley, runs over her foot without seeing her. That is not a trespass at all, because the interference was not intentional; it is negligence, and she must prove a duty, a breach and damage.

That fifth point is the one examiners test, because it is where the family ends.

What it does NOT mean

It does not require injury. All four are actionable per se.

It does not require anger or hostility in every case. An unwanted touching without consent may be a battery even where the toucher meant to be friendly, though the everyday jostling of ordinary life is not actionable.

It does not cover indirect harm. Directness is the boundary between trespass and negligence.

It is not answered by saying the defendant meant no harm. What must be intended is the act, not the injury.

Quick revision

1. Trespass to the person: battery, assault, mayhem, false imprisonment.
2. Three features: direct interference, actionable per se, and a voluntary act.
3. Directness separates trespass from negligence; the log on the highway is the classic illustration.
4. Assault needs no touching; battery needs no prior assault.
5. The penal counterparts are sections 129, 130, 131 and 127 of the Bharatiya Nyaya Sanhita 2023.
6. In India unlawful detention also violates articles 21 and 22, and compensation may be claimed under articles 32 and 226.
7. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, and Rudul Sah v. State of Bihar, AIR 1983 SC 1086, are the Indian illustrations.

Test yourself

1. What is trespass to the person, and what are its essentials? Trespass to the person is any direct and intentional interference with the body or personal liberty of another without lawful justification. It comprises battery, assault, mayhem and false imprisonment. Its essentials are three. The interference must be direct, following immediately from the defendant's act rather than as a further consequence of it, which is what separates it from negligence. The act must be voluntary and either intentional or, on some views, negligent, so a person who is pushed into another commits no trespass. And the tort is actionable per se, so no damage need be proved: the violation of the right is itself the injury, on the principle of injuria sine damno.

2. Distinguish trespass to the person from negligence. Trespass requires a direct interference, is actionable without proof of damage, and rests on an intentional act. Negligence requires a duty of care, a breach of it, and damage caused by the breach, and the harm is typically consequential rather than direct. The classical illustration is a log thrown into a highway: if it strikes a passer-by as it falls, the injury is direct and the action is trespass; if it lies there and somebody stumbles over it later, the injury is consequential and the action is in negligence or nuisance. The practical differences are that a plaintiff in trespass need prove no loss, while a plaintiff in negligence must, and that the burden of justifying the act lies on a defendant in trespass.

3. Is trespass to the person also a crime in India? Yes, and the statute in force since 1 July 2024 is the Bharatiya Nyaya Sanhita 2023. Section 129 defines criminal force, section 130 defines assault and section 131 punishes either otherwise than on grave and sudden provocation, while section 127 deals with wrongful confinement, the criminal counterpart of false imprisonment. The two proceedings are independent: the civil action is brought by the person wronged and compensates him on the balance of probabilities, while the prosecution is brought by the State and punishes on proof beyond reasonable doubt, so that an acquittal does not bar the suit. In India a third route exists where the wrongdoer is the State or its officers: compensation may be claimed under articles 32 and 226 for the violation of articles 21 and 22.

So the same act may be a battery in tort and criminal force under the Sanhita, and the two proceedings run independently.

A worked example

Anil is annoyed with Bhaskar at a wedding. Consider four things he might do.

One. He throws a glass of water over Bhaskar. That is a battery. Contact through a substance is contact, no injury is needed, and the humiliation is not the point.

Two. He pulls away the chair as Bhaskar sits down, and Bhaskar falls. That is a battery. The force is applied through the chair and the floor, and it is direct because the fall follows immediately from Anil's act.

Three. He tells a waiter to serve Bhaskar a dish he knows Bhaskar is allergic to, without warning him. That is not a battery, because the force is not applied directly by Anil; it may be negligence, and if Anil intended the harm it may be another wrong.

Four. He shakes Bhaskar's hand very firmly to say goodbye. That is not a battery. The contact is of the kind ordinarily accepted in social life, and Bhaskar consented to a handshake.

Distinctions that carry marks

What it does NOT mean

It does not require injury. The tort is complete on contact.

It does not require anger. A touching without consent may be a battery although it was meant kindly, and hostility is not a separate ingredient in every case.

It does not require the defendant to have touched the plaintiff with his body. A stone, a stick, water, a dog or a vehicle will do.

It does not cover every unwanted contact. The jostling of ordinary life is outside the tort.

Quick revision

1. Battery is the direct and intentional application of force to another without lawful justification.
2. The least touching is enough; no injury need be proved; the tort is actionable per se.
3. Contact through an object, a substance or an animal counts.
4. Defences: consent, private defence, necessity, lawful arrest, lawful authority, parental authority.
5. The ordinary contacts of daily life are not actionable.
6. Criminal counterpart: section 129 of the Bharatiya Nyaya Sanhita 2023 defines criminal force, section 130 defines assault, and section 131 punishes either.
7. Distinguish from assault, where there is no contact, and from negligence, where the harm is consequential and damage must be proved.

Test yourself

1. Define battery and state its essentials. Battery is the intentional and direct application of physical force to the person of another without lawful justification. Its essentials are the use of force, which may be of the slightest kind and need not cause injury; the absence of lawful justification, so that consent, private defence, necessity, lawful arrest and lawful authority all defeat the claim; directness, so that the contact must follow immediately from the defendant's act; and a voluntary act on the defendant's part, intending the contact though not necessarily the harm. Damage is not an essential, because the tort is actionable per se: the contact itself is the injury the law recognises.

2. Is contact through an object a battery? Yes. The force need not be applied by the defendant's body. Throwing water over a person, spitting at him, striking him with a stick, setting a dog on him, pulling away the chair he is sitting on and driving a vehicle at him are all batteries, because in each the force is applied directly by the defendant's own act operating through a thing. What matters is directness: contact that follows immediately from the act is a battery, while harm which results at one remove, as where a person later trips over an obstacle the defendant left, is consequential and belongs to negligence.

3. Are the everyday contacts of a crowded city actionable? No. Contacts that are generally accepted as unavoidable in ordinary life, such as being jostled in a crowded train, brushed against in a queue or tapped on the shoulder to attract attention, are not batteries. The law treats those who move about in public as having impliedly accepted them, and a rule to the contrary would make ordinary life impossible. The implied acceptance covers only contacts of that ordinary kind: a deliberate shove, a blow, or a touching that goes beyond what the situation requires remains a battery.

A worked example

At a village panchayat meeting, Kiran and Latha quarrel.

One. Kiran raises a stick over Latha's head from three feet away. Latha steps back. That is an assault. There is an act, a reasonable apprehension of immediate force, and an apparent present ability to apply it.

Two. He then lowers the stick, saying "only the chairman's presence saves you today". That is not a further assault, and the words show that no force is coming.

Three. He shouts from across the road, sixty feet away, that he will beat her. That is not an assault, because there is no apparent present ability to apply force immediately.

Four. He telephones her that night saying he will beat her tomorrow. That is not an assault: the apprehension is not of immediate force. It may be an offence of criminal intimidation, and it may found other proceedings, but the tort of assault is not committed.

Five. He points a pistol at her which is, unknown to her, unloaded. That is an assault, because the ability is apparent and her apprehension is reasonable.

Distinctions that carry marks

What it does NOT mean

It does not mean the plaintiff must be frightened. The test is what a reasonable person would apprehend.

It does not mean words alone can never matter. They may negative an act, explain it, or make a conditional threat actionable.

It does not require a real ability to apply force. An apparent present ability is enough, which is why an unloaded gun can be an assault.

It does not cover threats of future harm. Those belong to other branches of the law.

Quick revision

1. Assault: an act causing a reasonable apprehension of the immediate application of force.
2. No contact, no damage, actionable per se.
3. Four essentials: an act, reasonable apprehension, immediacy, apparent present ability.
4. Words alone are ordinarily not an assault, but may negative it, explain it, or make a conditional threat actionable.
5. Section 130 of the Bharatiya Nyaya Sanhita 2023 defines assault and section 131 punishes assault or criminal force otherwise than on grave and sudden provocation.
6. Assault may occur without battery, and battery without assault.

Test yourself

1. Define assault and distinguish it from battery. An assault is an act of the defendant which directly causes the plaintiff reasonably to apprehend the immediate infliction of force upon his person. Its essentials are an act rather than a mere omission, a reasonable apprehension judged objectively, immediacy of the threatened force, and an apparent present ability to carry the threat out. Battery, by contrast, is the actual application of force. The two are independent: a blow aimed and missed is an assault without a battery, and a blow struck from behind is a battery without any assault, because the victim never apprehended it. Neither requires proof of damage, since both are actionable per se.

2. "Mere words do not amount to an assault." Discuss. The proposition is the traditional rule and it is now stated with qualifications. Words alone, unaccompanied by any act, ordinarily create no apprehension of immediate force and so are not an assault; a threat shouted from a distance or made over the telephone is not actionable as an assault, whatever else it may be. But words work in three other ways. They may negative what would otherwise be an assault, as where a raised hand is accompanied by a statement that no blow will be struck. They may explain an ambiguous gesture and so establish the apprehension. And a conditional threat may be an assault where the plaintiff is not bound to comply with the condition, as where a person lawfully present is told to leave or be thrown out.

3. Is pointing an unloaded gun an assault? Yes, if the plaintiff does not know it is unloaded and a reasonable person in his position would apprehend immediate force. The requirement is an apparent present ability to carry out the threat, not an actual one, because the interest the tort protects is freedom from the fear of force, and that fear is created just as effectively by a gun the victim believes to be loaded. The position is different where the plaintiff knows the gun is unloaded, for then no reasonable apprehension arises, and different again where the defendant is plainly out of reach, since immediacy is then absent.

Compensation for grievous hurt under statute. Section 164 of the Motor Vehicles Act 1988 fixes compensation of two and a half lakh rupees for grievous hurt in a motor accident without any proof of fault, and section 145 of that Act, as substituted in 2019, adopts the penal definition of grievous hurt for the purposes of the insurance chapter. Chapter [Liability without Fault] works that out.

Consumer claims. Where a defective product maims a consumer, the Consumer Protection Act 2019 gives a remedy in product liability, which chapter [Product Liability] deals with.

A worked example

In a fight outside a shop, Ravi strikes Sunil three times.

The first blow knocks out one of Sunil's front teeth. On the old law that is mayhem, because a tooth used in fighting is a member useful in defence. Under section 116 of the Bharatiya Nyaya Sanhita 2023 the fracture or dislocation of a tooth is grievous hurt.

The second blow slits Sunil's ear. On the old law that is not mayhem, because it disfigures without weakening. Under the Sanhita it is not within the list unless it amounts to permanent disfiguration of the head or face, which on these facts it may.

The third blow breaks Sunil's arm. That is grievous hurt as a fracture of a bone, and in the old language a deprivation of the use of a member.

In the civil suit Sunil pleads battery for all three, and the maiming enters as an aggravating feature which increases the damages. He does not plead three different torts.

Distinctions that carry marks

What it does NOT mean

It is not a separate suit. A plaintiff sues in battery and relies on the maiming for damages.

It does not require disfigurement. The old test was loss of fighting capacity, and disfigurement alone was outside it.

The penal test is wider than the old civil one. Section 116 of the Bharatiya Nyaya Sanhita 2023 includes permanent disfiguration of the head or face and hurts that keep the sufferer in severe pain for twenty days.

Quick revision

1. Mayhem is an aggravated battery depriving a person of a member useful in fighting.
2. Its origin is the King's interest in the fighting strength of his subjects.
3. Disfigurement without loss of fighting capacity was not mayhem.
4. In India today it is not a separate cause of action; it is battery, and the maiming increases the damages.
5. The corresponding penal idea is grievous hurt, section 116 of the Bharatiya Nyaya Sanhita 2023, which lists emasculation, loss of sight or hearing, privation or impairing of a member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth, and hurts endangering life or causing fifteen days of severe pain or incapacity.
6. Section 164 of the Motor Vehicles Act 1988 gives two and a half lakh rupees for grievous hurt without proof of fault.

Test yourself

1. What is mayhem, and what is its place in modern Indian law? Mayhem, or maim, is an aggravated form of battery consisting of a bodily injury that deprives the plaintiff of the use of a member useful to him in fighting or defending himself, such as a hand, a finger, an eye or a front tooth. It began as a distinct wrong because an injury of that kind reduced the fighting strength available to the King, and injuries that merely disfigured, such as cutting off an ear, fell outside it. In modern Indian law it is not a separate cause of action: the plaintiff sues in battery and the maiming is relied on as an aggravating feature increasing the damages. The idea survives in the penal law as grievous hurt under section 116 of the Bharatiya Nyaya Sanhita 2023, and in the statutory compensation of two and a half lakh rupees for grievous hurt under section 164 of the Motor Vehicles Act 1988.

2. How does the penal definition of grievous hurt differ from the old law of mayhem? The old law asked whether the injury deprived the victim of a member useful in fighting, so disfigurement without loss of capacity was outside it. Section 116 of the Bharatiya Nyaya Sanhita 2023 is wider. It designates as grievous hurt emasculation, permanent privation of the sight of either eye or the hearing of either ear, privation of any member or joint, destruction or permanent impairing of the powers of any member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth, and any hurt which endangers life or which causes the sufferer to be for fifteen days in severe bodily pain or unable to follow his ordinary pursuits. Disfiguration of the head or face is therefore expressly included, and so are injuries defined by their duration rather than by the part of the body affected.

Necessity and lawful authority, as chapter [General Defences II] explains.

The Indian dimension: the same facts are also a constitutional wrong

Article 21 protects life and personal liberty, and article 22(2) requires that a person arrested be produced before the nearest magistrate within twenty-four hours. A detention that breaks those provisions is not merely a tort; it is the violation of a fundamental right, and the Supreme Court has held that compensation may be awarded for it in a writ petition.

Facts. Rudul Sah v. State of Bihar, AIR 1983 SC 1086, decided on 1 August 1983. Rudul Sah was acquitted by the Court of Sessions at Muzaffarpur on 3 June 1968 and was kept in jail until 16 October 1982, more than fourteen years after his acquittal. He petitioned under article 32 for release and for compensation.

Held. He had been released before the hearing, so the prayer for release did not survive. The Court held that its power under article 32 is not confined to ordering release and that it may award compensation where the right to liberty has been grossly violated, otherwise the right would be a paper guarantee. It directed the State to pay Rs. 30,000 in addition to a sum already paid, called the award a palliative, and left him free to sue for damages in the ordinary way.

Facts. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, decided on 22 November 1985. A member of the Legislative Assembly was arrested at three in the morning while travelling to attend a session of the Assembly, and was kept in custody from the tenth to the fourteenth of September without being produced before the Executive Magistrate on the eleventh or the Sub Judge on the thirteenth, remand orders having been obtained from both at their residences after office hours.

Held. The police had acted deliberately and mala fide and there was a gross violation of articles 21 and 22(2). Since he was already at liberty no order of release was needed, but the Court held it had jurisdiction to compensate the victim and directed the State to pay Rs. 50,000.

Why they matter here. They show that in India the tort has a public law twin with three practical advantages: the writ court is quicker, sovereign immunity is no answer to it, and the compensation is awarded summarily. D.K. Basu v. State of West Bengal, AIR 1997 SC 610, then laid down eleven requirements for every arrest and detention, including an arrest memo attested by a relative or a respectable person of the locality and medical examination every forty-eight hours, so that the facts of an unlawful detention can be proved.

The criminal counterpart

Section 126 of the Bharatiya Nyaya Sanhita 2023 punishes wrongful restraint, which is voluntarily obstructing a person so as to prevent him from proceeding in a direction in which he has a right to proceed. Section 127 punishes wrongful confinement, which is wrongfully restraining a person in such a manner as to prevent him from proceeding beyond certain circumscribing limits.

Notice that the penal law makes wrongful restraint an offence even where it is only partial, while the tort of false imprisonment requires total restraint. That difference is a favourite examination point.

A worked example

Vikram goes into a bank at 4 p.m. Four things happen.

One. The manager, suspecting him of theft, tells the guard not to let him leave, and the guard stands at the only door. Vikram waits for twenty minutes and is then allowed to go. That is false imprisonment: the restraint was total, it was by a show of authority rather than by force, and twenty minutes is long enough.

Two. Suppose instead the guard blocks the front door but the side door is open and Vikram knows it. That is not false imprisonment: the restraint is partial and a reasonable means of egress remains, though the obstruction may be wrongful restraint under section 126 of the Bharatiya Nyaya Sanhita 2023.

Three. Suppose Vikram is asleep in the manager's office and is locked in for an hour without ever waking. That is still false imprisonment; his want of knowledge affects the damages only.

Four. Suppose a police officer arrests him lawfully on a warrant. That is not false imprisonment at all, and the burden of proving the arrest lawful is on the officer.

Distinctions that carry marks

What it does NOT mean

It does not require a prison. Any place will do, including an open field if the plaintiff cannot leave it.

It does not require force. Submission to a show of authority is enough.

It does not require knowledge. A sleeping or unconscious person may be falsely imprisoned.

It does not cover partial obstruction. If a reasonable way out remains, the tort is not committed.

Quick revision

1. False imprisonment: total restraint of liberty without lawful justification.
2. "False" means wrongful; "imprisonment" means any confinement, not a jail.
3. Total restraint is essential; a reasonable means of escape defeats the claim; a dangerous or unlawful escape route is not reasonable.
4. No force, no minimum time and no knowledge are required; knowledge goes to damages.
5. Defences: lawful arrest, judicial authority, consent, necessity and lawful authority.
6. Rudul Sah v. State of Bihar, AIR 1983 SC 1086: Rs. 30,000 for fourteen years of illegal detention under article 32.
7. Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494: Rs. 50,000 for four days, articles 21 and 22(2) violated.
8. D.K. Basu v. State of West Bengal, AIR 1997 SC 610: eleven requirements for every arrest and detention.
9. Penal counterparts: wrongful restraint, section 126, and wrongful confinement, section 127, of the Bharatiya Nyaya Sanhita 2023.
10. Limitation: one year from the end of the imprisonment, article 73 of the Schedule to the Limitation Act 1963.

Test yourself

1. Define false imprisonment and state its essentials. False imprisonment is the infliction of bodily restraint which is not expressly or impliedly authorised by law. Its essentials are that the restraint be total, so that the plaintiff is prevented from going in every direction and no reasonable means of escape remains; that it be without lawful justification, so that a lawful arrest, a valid judicial order or consent defeats the claim; and that there be a restraint at all, which may be by a physical barrier, by force, or by a show of authority to which the plaintiff submits. No touching, no prison and no minimum period are required, the tort is actionable per se without proof of damage, and the plaintiff's knowledge of the restraint is not essential, though it affects the damages.

2. "The restraint must be total." Explain with illustrations. A partial obstruction is not false imprisonment. A person who is prevented from crossing a bridge, but is free to turn back and go round, has not been imprisoned, because a reasonable alternative remains open to him. A person locked in a room has been, because every direction is closed. The alternative must be reasonable: a window on a third floor, a route through fire or water, or one that would require the plaintiff to trespass on another's land, is no escape at all. Indian penal law draws the line differently: section 126 of the Bharatiya Nyaya Sanhita 2023 makes even a partial obstruction the offence of wrongful restraint, while section 127 corresponds to the tort by requiring restraint within circumscribing limits.

3. What remedies has a person unlawfully detained by the police in India? Three. A suit in tort for false imprisonment, in which he need prove no damage and the burden of justifying the detention lies on the officer, subject to a limitation of one year from the end of the imprisonment under article 73 of the Schedule to the Limitation Act 1963. A petition under article 32 or 226 for habeas corpus and for compensation for the violation of articles 21 and 22, on the authority of Rudul Sah v. State of Bihar, AIR 1983 SC 1086, where Rs. 30,000 was awarded after fourteen years of detention beyond acquittal, and Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, where Rs. 50,000 was awarded for four days. And a criminal complaint for wrongful confinement under section 127 of the Bharatiya Nyaya Sanhita 2023. The safeguards laid down in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, including an arrest memo attested by a relative and medical examination every forty-eight hours, are what make the facts provable.

4. Is knowledge of the restraint necessary? No. A person may be falsely imprisoned while asleep, while unconscious, or while believing himself free to go. The tort protects liberty itself, and liberty is taken away whether or not the person taken notices at the time. Knowledge is relevant to the measure of damages, since a plaintiff who suffered the fear and humiliation of a known detention has suffered more than one who learned of it afterwards, but it is not an ingredient of the wrong.

Continuing trespass

Where the trespass consists of leaving something on the land, or of remaining on it, a fresh cause of action arises every day it continues. This matters for limitation: article 87 of the Schedule to the Limitation Act 1963 gives three years from the date of the trespass, but section 22 of that Act provides that in the case of a continuing tort a fresh period runs at every moment during which it continues. So a heap of rubble left on a neighbour's land in 2020 is still actionable in 2026, though damages are confined to the period within limitation.

Defences

Licence. Permission, express or implied, is a complete answer while it lasts. Permission may be revoked, and after a reasonable time to leave, the person becomes a trespasser.

Authority of law. Entry by an officer executing a warrant, by a public servant under statutory power, or by a person exercising a right of way.

Necessity. Entry to put out a fire or to save life.

Re-entry by a person entitled to possession, using no more force than is reasonable.

Justification by an easement or a customary right.

What is NOT a defence: mistake, honest belief in one's own title, absence of damage, or the fact that the trespass benefited the occupier.

A worked example

Deepa is the tenant of a plot in Nashik. Her landlord is Farooq.

One. A stranger walks across the plot each morning as a short cut, doing no harm. Deepa may sue him in trespass. Damage is not needed and the shortness of the crossing is irrelevant.

Two. Farooq, the owner, enters and starts building a shed. Deepa may sue Farooq too, because the action protects her possession and he has no right to take the law into his own hands. If he dispossesses her, section 6 of the Specific Relief Act 1963 gives her a summary suit to be restored.

Three. A neighbour's mango tree grows so that its branches hang over the plot. That is a trespass by projection while the branches remain, and it is also capable of being a nuisance; chapter [Private Nuisance] draws the line.

Four. The fire brigade breaks the gate to reach a burning house next door. That is not a trespass, because necessity justifies it.

Five. Deepa herself invites a surveyor on to the land, then asks him to leave, and he refuses. He entered lawfully and is now a trespasser by remaining.

Distinctions that carry marks

What it does NOT mean

It does not require damage. The tort is actionable per se.

It does not require knowledge that the land was another's. Mistake is no defence.

It does not protect ownership as such. It protects possession, which is why an owner out of possession must sue for possession instead.

It does not last forever after a single entry. A single entry gives one cause of action; leaving something behind gives a continuing one.

Quick revision

1. Trespass to land: unjustifiable interference with land in another's possession, actionable per se.
2. Three forms: entry, remaining after the right has ended, and placing or projecting things.
3. It protects POSSESSION, so a tenant may sue and an owner out of possession may not.
4. Airspace and subsoil are protected so far as necessary for ordinary use and enjoyment.
5. Mistake and absence of damage are no defence; licence, authority of law, necessity and re-entry are.
6. Continuing trespass: section 22 of the Limitation Act 1963 gives a fresh period every moment; article 87 gives three years from the trespass.
7. Section 6 of the Specific Relief Act 1963 gives a summary suit to a person dispossessed otherwise than in due course of law, even against the true owner.

Test yourself

1. Define trespass to land and state its essentials. Trespass to land is any unjustifiable interference with land in the possession of another. It is committed by entering upon the land, by remaining on it after the right of entry has ended, or by placing or projecting any object upon it, and it extends to the airspace above and the soil beneath so far as is necessary for the ordinary use and enjoyment of the land. Its essentials are an intentional act by the defendant, interference with land in the plaintiff's possession, and absence of lawful justification. Damage is not an essential, because the tort is actionable per se, and mistake is no defence, so a person who enters honestly believing the land to be his own is still a trespasser.

2. "Trespass protects possession, not ownership." Explain. The action lies at the suit of the person in possession, because what the tort protects is the exclusive control of the land rather than title to it. A tenant, a licensee in exclusive occupation and even a person in wrongful possession may therefore sue a stranger, while an owner who is out of possession cannot sue in trespass at all and must instead sue to recover possession under section 5 of the Specific Relief Act 1963. The policy is that disputes about land are to be settled by the courts and not by self-help: section 6 of the same Act gives a person dispossessed otherwise than in due course of law a summary suit for restoration, which succeeds even against the true owner, precisely so that a title-holder cannot enforce his title by force.

3. What is a continuing trespass, and why does it matter? A continuing trespass is one that consists in a state of affairs rather than a single act: remaining on land after a licence has ended, or leaving rubble, a wall or a projecting structure there. It matters for limitation. Article 87 of the Schedule to the Limitation Act 1963 prescribes three years from the date of the trespass, which would bar a claim three years after the thing was placed, but section 22 provides that in a continuing tort a fresh period of limitation begins at every moment during which the tort continues. So the claim survives while the state of affairs lasts, though the damages recoverable are confined to the period within limitation. It also matters for the remedy, since a continuing trespass is the natural case for an injunction rather than damages alone.

A worked example

A revenue officer enters Suresh's shop under a statutory power to inspect stock.

One. He inspects the stock and leaves. Lawful entry, no trespass.

Two. He inspects, and then helps himself to a shirt. He has abused an authority given by law by a positive wrongful act, so he is a trespasser ab initio: his entry, his walking through the shop and his inspection are all treated as wrongful, and Suresh may sue in trespass for the whole visit as well as for the shirt.

Three. He inspects, and forgets to make the entry in the register that the statute requires. That is a nonfeasance. He is answerable under the statute, but he is not a trespasser ab initio.

Four. Suresh himself invites an accountant to examine his books, and the accountant copies a private letter. The authority came from Suresh, not from the law, so the doctrine does not apply; the accountant is answerable for what he did after the abuse, and for breach of the terms on which he was admitted.

Distinctions that carry marks

What it does NOT mean

It does not apply to a licence from the occupier. Authority given by the party is outside the doctrine.

It is not triggered by an omission. Only a misfeasance will do.

It does not make everything the entrant ever did wrongful. The abuse must relate to the authority under which he entered.

It is not the only remedy for abuse of official power in India. The constitutional remedy is usually the better one.

Quick revision

1. Ab initio means from the beginning; the doctrine is a fiction that withdraws the authority retrospectively.
2. It originates in an English decision of the early seventeenth century, the Six Carpenters' case.
3. Three conditions: authority given by the LAW, abuse by a positive wrongful act, and a connection between the abuse and the authority.
4. Authority given by the party is outside the doctrine.
5. A nonfeasance does not attract it; a misfeasance does.
6. Criticised as artificial and as unnecessary in a system with constitutional remedies for abuse of power.

Test yourself

1. Explain the doctrine of trespass ab initio and its conditions. Where a person enters land under an authority conferred by the law and then abuses that authority by a positive wrongful act, the law treats him as a trespasser from the moment of entry, so that his whole presence on the land is wrongful and actionable. The doctrine has three conditions. The authority must come from the law and not from the occupier, because an occupier who gives a licence has his remedy on the terms of that licence. The abuse must be a misfeasance, a positive wrongful act, and not a mere nonfeasance or omission. And the abuse must relate to the authority under which the entry was made. Its origin is an English decision of the early seventeenth century, the Six Carpenters' case, and its purpose was to give a sanction against officials who entered under legal powers.

2. Why has the doctrine been criticised? On two grounds. It is artificial, because it makes conduct which was lawful when it occurred unlawful by hindsight, and the law does not ordinarily work that way; the entrant's later misconduct does not change the character of his earlier acts in fact. And it is largely unnecessary today, at least in India, because a person injured by an abuse of official power has better remedies: an action for the specific wrong committed, and a petition under article 32 or 226 in which a constitutional court may award compensation for the violation of a fundamental right without any recourse to a fiction. The doctrine survives as an examination topic and as a reminder that a power conferred by law is conferred for a purpose.

The policy behind section 6 is the one stated in chapter [Trespass to Land]: a person who is put out of possession by force gets the land back first and argues about title afterwards, so that nobody profits from self-help.

The extra-judicial remedies

Re-entry. A person entitled to possession may enter and retake the land, using no more force than is reasonably necessary. The right is real but it is dangerous: excessive force is itself a wrong, and if the occupier has been in settled possession the safer course is a suit.

Expulsion of a trespasser. An occupier may ask a trespasser to leave and, after a reasonable opportunity to go, may put him out with reasonable force.

Distress damage feasant, the right to detain animals or chattels that have strayed on to the land and done damage, until compensation is paid. Chapter [Extra-Judicial Remedies] takes all of these together.

A worked example

Rehana returns from six months abroad and finds that Sameer has fenced part of her plot and parked lorries on it.

If she is in possession of the rest of the plot, the fencing and parking are trespasses. She may sue for damages and for a mandatory injunction under section 39 of the Specific Relief Act 1963 to remove the fence, and for a perpetual injunction under section 38 to stop the parking.

If Sameer has taken possession of the whole plot, trespass is not the right action, because she is out of possession. Within six months of the dispossession she may bring the summary suit under section 6, in which Sameer cannot rely on any title he claims. Beyond six months she must sue on her title under section 5.

If she goes and pulls the fence down herself, she is exercising the extra-judicial remedy of re-entry, which is lawful if she uses no more force than is reasonably necessary and is entitled to possession, and unlawful, and dangerous, if she is not.

Limitation. Article 87 of the Schedule to the Limitation Act 1963 gives three years from the date of the trespass for the claim for compensation, and section 22 of that Act gives a fresh period every moment while a trespass continues.

What it does NOT mean

It does not mean damages are the only remedy. For a continuing trespass an injunction is usually the real remedy, because damages would have to be sued for again and again.

It does not mean an owner may always take the land back himself. Self-help is lawful only within narrow limits, and section 6 exists to discourage it.

It does not mean a section 6 suit settles the title. It decides possession only, and the defeated party may sue on title afterwards.

It does not mean mesne profits are the same as damages. Mesne profits represent the value of the wrongful occupation, not the injury to the land.

Quick revision

1. Judicial remedies: damages, mesne profits, injunction, and a suit for possession.
2. Damages lie without proof of loss because trespass is actionable per se.
3. Injunctions: section 38 of the Specific Relief Act 1963 for a perpetual injunction, section 39 for a mandatory one.
4. Section 5: the ordinary suit for possession, based on title.
5. Section 6: the summary suit, based on previous possession and dispossession otherwise than in due course of law; six months; no appeal or review; not against the Government; a better title is no defence.
6. Extra-judicial: re-entry, expulsion of a trespasser, and distress damage feasant, all with reasonable force only.
7. Limitation: article 87 gives three years from the trespass, and section 22 gives a fresh period for a continuing trespass.

Test yourself

1. What remedies has a person whose land has been trespassed upon? Four judicial remedies and three extra-judicial ones. He may sue for damages, and since trespass is actionable per se he recovers even without proving loss, the damages being nominal in that case and measured by the diminution in value or the cost of restoration where there is real damage. He may claim mesne profits for the period of wrongful occupation. He may obtain an injunction, perpetual under section 38 of the Specific Relief Act 1963 or mandatory under section 39, which is the practical remedy where the trespass is continuing or threatened. And where he has been put out of possession he may sue for possession, under section 5 on his title or, within six months, under section 6 summarily. Out of court he may re-enter, expel a trespasser after a reasonable opportunity to leave, or distrain animals damage feasant, in each case using no more force than is reasonably necessary.

2. Distinguish a suit under section 5 from a suit under section 6 of the Specific Relief Act 1963. A suit under section 5 is the ordinary suit for the recovery of specific immovable property, brought in the manner provided by the Code of Civil Procedure 1908 by a person entitled to possession; title is the very question in issue, the ordinary period of limitation applies, an appeal lies, and the decree settles the title. A suit under section 6 is summary. It is available to a person dispossessed without his consent otherwise than in due course of law, must be brought within six months of the dispossession, cannot be brought against the Government, and is decided without going into title, so that a defendant with a better title still loses. No appeal or review lies from a decree in such a suit, but the defeated party may afterwards sue on his title. The two exist side by side because the law wants possession restored quickly and title decided deliberately.

3. When will a court grant an injunction rather than damages for trespass? Where damages would not be an adequate remedy, which is the test section 38 of the Specific Relief Act 1963 itself states for an invasion of a right to property: where there exists no standard for ascertaining the actual damage caused, or where compensation in money would not afford adequate relief. In practice that means a continuing or repeated trespass, where an award of damages would leave the plaintiff to sue again and again, and a threatened trespass, where the harm has not yet occurred. Where the trespasser has built or placed something on the land, the appropriate order is a mandatory injunction under section 39 requiring him to remove it.

Return of the goods. Section 7 of the Specific Relief Act 1963 provides that a person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure 1908, and its Explanations make clear that a trustee may sue, and that a special or temporary right to present possession is enough.

Recaption, the extra-judicial retaking of the goods.

Limitation. Article 91 of the Schedule to the Limitation Act 1963 gives three years: for wrongfully taking or detaining specific movable property lost, or acquired by theft or dishonest misappropriation or conversion, time runs from when the person entitled first learns in whose possession it is; for wrongfully taking, injuring or detaining other movable property, from when the property is wrongfully taken or injured.

A worked example

Gita parks her scooter outside a college and leaves her books in the basket.

One. A stranger pushes the scooter ten feet to make room for his car, and it is undamaged. That is a trespass to goods. Movement without permission is interference, and Gita need prove no loss; her damages will be nominal.

Two. He lets down her tyres. That is a trespass with damage, and the measure is the cost of putting them right.

Three. He takes one of her books home, honestly believing it to be his. That is a trespass to goods, because mistake is no defence, and once he refuses to return it after a demand it is also a detinue, and his dealing with it as his own is a conversion.

Four. He sells the book to a shop. That is a conversion, and Gita may recover its full value from him, from the shop, or from anybody else who dealt with it as owner. Chapter [Conversion] works that out.

Five. He moves the scooter to save it from a fire spreading across the road. That is not actionable, because necessity justifies the interference.

What it does NOT mean

It does not require damage. Moving goods is enough.

It does not require dishonesty. Mistake and good faith are no defence.

It does not protect ownership as such. It protects possession; an owner out of possession sues in conversion.

It does not cover consequential harm. Directness is essential; harm caused at one remove is negligence.

Quick revision

1. Trespass to goods: direct and wrongful interference with goods in another's possession.
2. Actionable per se, so no damage need be proved.
3. Possession, not ownership, is the interest protected.
4. Mistake is no defence; consent, lawful authority, recaption, necessity and inevitable accident are.
5. Remedies: damages, recovery of the goods under section 7 of the Specific Relief Act 1963, and recaption.
6. Limitation: article 91 of the Schedule to the Limitation Act 1963, three years, with the starting point depending on how the goods were lost.
7. Keep the three torts apart by what the plaintiff must show and by what he recovers.

Test yourself

1. What is trespass to goods, and what must the plaintiff prove? Trespass to goods is a direct and wrongful interference with goods in the possession of another, committed by taking them, moving them, damaging them or otherwise physically interfering with them. The plaintiff must prove that the goods were in his possession, since the tort protects possession rather than ownership, and that the defendant interfered with them directly by a voluntary act. He need not prove damage, because the tort is actionable per se, and he need not prove dishonesty, because mistake is no defence: a person who takes another's umbrella honestly believing it to be his own commits the tort. Directness is essential, so harm which follows at one remove from the defendant's act belongs to negligence and not to trespass.

2. Distinguish trespass to goods, detinue and conversion. Trespass is a direct interference with possession, needs no demand and no damage, and is compensated by damages for the interference. Detinue is the wrongful detention of goods after a demand for their return has been made and refused, and its object is to get the thing itself back, or its value if it cannot be returned. Conversion is dealing with the goods in a manner inconsistent with the owner's right, such as selling them or destroying them, needs no demand, and its measure is the full value of the goods, so that the defendant pays as though he had bought them. A plaintiff in trespass must have had possession; in conversion possession or the right to immediate possession suffices; in detinue the right to immediate possession is what matters.

3. What remedies are available for an interference with goods? Damages, measured by the diminution in the value of the goods or nominal where none has resulted. Recovery of the goods themselves: section 7 of the Specific Relief Act 1963 allows a person entitled to the possession of specific movable property to recover it in the manner provided by the Code of Civil Procedure 1908, and its Explanations make clear that a trustee may sue and that a special or temporary right to present possession is sufficient. And the extra-judicial remedy of recaption, that is, retaking the goods, using no more force than is reasonably necessary. Limitation is three years under article 91 of the Schedule to the Limitation Act 1963, running from when the person entitled first learns in whose possession the goods are, where they were lost or taken by theft, misappropriation or conversion, and otherwise from the taking or injury.

So the Indian statutory scheme reaches the same result as detinue did, and reaches it more easily: the plaintiff can ask for the thing itself, and not merely for its value, and the presumption is on his side.

Detinue against conversion

The two overlap and a refusal to return goods on demand is usually both. The differences are these.

Where the goods are unique, an heirloom, a manuscript, a particular painting, the plaintiff wants the thing and not the money, and that is when this tort and section 8 of the Specific Relief Act 1963 are worth pleading.

A worked example

Prakash lends his grandfather's silver watch to Rani for a week. The week ends.

One. He asks for it back and she says she will return it next month. That is a refusal only if it amounts to one; a short and reasonable postponement is not. If she simply keeps it and stops answering, the demand and refusal are made out and the detention is wrongful.

Two. He sues. In India he frames the suit under section 7 of the Specific Relief Act 1963 for recovery of the specific movable property, and relies on section 8 to ask that she be compelled to deliver the watch itself, on the ground that it is a family heirloom so that compensation in money would not afford adequate relief and the actual damage would be extremely difficult to ascertain.

Three. Suppose instead she has sold it to a jeweller. Detinue no longer lies against her, because she does not have the watch. Her wrong is conversion, and she must pay its full value. The jeweller, who dealt with it as owner, has also converted it, and Prakash may sue him for the value or seek the watch from him under section 8.

Four. Limitation. Article 91 of the Schedule to the Limitation Act 1963 gives three years, running in the case of goods acquired by conversion from the time Prakash first learns in whose possession the watch is.

What it does NOT mean

It does not lie without a demand. That is what separates it from trespass and from conversion.

It does not lie against a person who no longer has the goods. That claim is in conversion.

It does not guarantee the return of the thing. A court may order the value instead, and in India section 8 of the Specific Relief Act 1963 sets out when specific delivery may be compelled.

It is not defeated by the defendant's good faith. A person who honestly believes the goods are his still detains them wrongfully once the plaintiff's right is established.

Quick revision

1. Detinue: wrongful detention of goods after a demand by the person entitled to immediate possession.
2. Three essentials: the right to immediate possession, a demand, and a refusal.
3. The defendant must still have the goods.
4. In India the statutory form is sections 7 and 8 of the Specific Relief Act 1963.
5. Section 8 allows specific delivery in four cases: agent or trustee, money not adequate relief, damage extremely difficult to ascertain, and possession wrongfully transferred. Its Explanation presumes the second and third in the plaintiff's favour until the contrary is proved.
6. Detinue aims at the thing; conversion pays for it.
7. Limitation: article 91 of the Schedule to the Limitation Act 1963, three years.

Test yourself

1. What is detinue and what must be proved? Detinue is the wrongful detention of a chattel by the person in possession of it against the person entitled to its immediate possession. The plaintiff must prove three things: that he had the right to immediate possession, so that an owner who has hired the goods out for a term cannot sue during the term; that he made a demand for their return, in any form; and that the defendant refused to deliver them, whether expressly or by conduct, a request for a reasonable time to verify the claimant's title not amounting to a refusal. The defendant must still be in possession, since a person who has parted with the goods is answerable in conversion instead.

2. How is detinue given effect in Indian law? Through sections 7 and 8 of the Specific Relief Act 1963. Section 7 allows a person entitled to the possession of specific movable property to recover it in the manner provided by the Code of Civil Procedure 1908, and its Explanations make clear that a trustee may sue and that a special or temporary right to present possession suffices. Section 8 deals with a defendant who has possession or control of movable property of which he is not the owner, and allows him to be compelled to deliver it specifically to the person entitled to immediate possession in four cases: where he holds it as the plaintiff's agent or trustee, where compensation in money would not be adequate relief, where it would be extremely difficult to ascertain the actual damage, and where the possession of the thing has been wrongfully transferred from the plaintiff.

3. When is detinue a better claim than conversion? When the plaintiff wants the thing itself rather than its value, and the defendant still has it. Conversion is compensated by damages measured by the full value of the goods at the date of the conversion, which is an adequate remedy for an ordinary commercial article but not for a unique one. Where the chattel is an heirloom, a manuscript, a particular painting or a thing with no market substitute, the plaintiff should demand its return and, on refusal, sue for specific delivery, relying in India on section 8 of the Specific Relief Act 1963, which allows exactly that where money would not afford adequate relief or the damage would be extremely difficult to ascertain.

The measure of damages, and why it matters

The measure is the value of the goods at the date of the conversion, together with any special damage. That has two consequences a student should be able to state.

The plaintiff need not take the goods back. If the defendant offers to return them, the plaintiff may accept, and the damages then cover the depreciation and the loss of use, but the tort has been committed.

A chain of innocent dealers may all be liable. If a thief sells to a dealer who sells to a buyer, each has dealt with the goods inconsistently with the owner's right, and each has converted them. The owner is entitled to one satisfaction only, but he may choose whom to sue.

Defences

Lawful justification, such as sale by a person with authority, a lien, or a statutory power of sale.

Consent of the person entitled.

Jus tertii, that is, a third person's better title, is a defence in limited circumstances only: a bailee cannot ordinarily set up the title of a third person against his bailor.

Limitation, under article 91 of the Schedule to the Limitation Act 1963, three years, running from when the person entitled first learns in whose possession goods lost, stolen, misappropriated or converted are.

A worked example

Imran leaves his laptop with Jaya to be repaired.

One. Jaya lends it to her brother for a week. That is conversion by wrongful user: she has dealt with it as though it were hers.

Two. Jaya returns it to a customer of the same name by mistake. That is conversion by wrongful delivery. Her honesty is no answer.

Three. Jaya sells it to a shop, which sells it to Kamal, who buys in good faith for full value. Jaya, the shop and Kamal have each converted it. Imran may sue any of them for its full value at the date of the conversion, though he can have only one satisfaction.

Four. Kamal, having heard of the claim, offers the laptop back. Imran may take it, and recover the depreciation and the loss of its use in the meantime; the conversion has still occurred.

Five. If Imran wants the laptop itself rather than money, he sues under sections 7 and 8 of the Specific Relief Act 1963 for specific delivery, as chapter [Detinue] explains.

Distinctions that carry marks

What it does NOT mean

It does not require dishonesty. An innocent purchaser converts.

It does not require the defendant to keep the goods. Selling them, destroying them or giving them away are all conversions.

It does not lie for a mere assertion of ownership. There must be an act dealing with the goods.

It does not give the plaintiff two recoveries. He may sue any of a chain of converters, but he is entitled to one satisfaction only.

Quick revision

1. Conversion, formerly trover: a wilful dealing with goods inconsistent with the right of the person entitled, without lawful justification.
2. The plaintiff must have possession or the right to immediate possession.
3. Good faith and absence of any intention to challenge the title are no defence.
4. Forms: taking, detention, wrongful delivery, wrongful disposition, destruction or alteration, and wrongful user.
5. Measure: the value of the goods at the date of the conversion, plus special damage.
6. Every person in a chain who deals with the goods as owner converts them, but the plaintiff gets one satisfaction only.
7. Limitation: three years under article 91 of the Schedule to the Limitation Act 1963.
8. For the thing itself rather than its value, sue under sections 7 and 8 of the Specific Relief Act 1963.

Test yourself

1. Define conversion and state its essentials. Conversion is an act of wilful interference with a chattel, done without lawful justification, by which the person entitled to it is deprived of its use and possession. Its essentials are that the plaintiff had possession or the right to immediate possession of the goods, and that the defendant dealt with them in a manner inconsistent with that right, that is, as though they were his own or in a way denying the plaintiff's title. No intention to challenge the title is required, so honesty and good faith are no defence, and a person who buys stolen goods innocently converts them. The measure of damages is the value of the goods at the date of the conversion, so that the defendant is treated as though he had bought them.

2. In what ways may conversion be committed? By taking the goods with the intention of exercising dominion over them; by detaining them and refusing to deliver them on demand, which is also detinue; by wrongful delivery, as where a bailee hands them to the wrong person; by wrongful disposition, as where they are sold or pledged; by destruction or by such alteration that their identity is lost; and by wrongful user, as where a bailee for safe keeping uses the goods as his own. What is not conversion is a mere assertion of a claim without any act, a refusal made in good faith while the claimant's title is checked within a reasonable time, and a failure to take care of the goods, which is negligence rather than conversion.

3. "An innocent buyer of stolen goods is liable in conversion." Is that just? It is the law, and the reason is that conversion protects title rather than punishing dishonesty. Each person in a chain who deals with goods as owner denies the true owner's right, so the thief, the dealer and the innocent purchaser have each converted them, and the owner may sue whichever he chooses for the full value at the date of the conversion, taking one satisfaction only. The justification is that between two innocent parties the loss should fall on the one who dealt with the goods rather than on the owner who never parted with his title, and that a buyer can protect himself by inquiring into the seller's title while an owner cannot follow his goods around the market. The rule is qualified where a statute protects a purchaser in market overt or in the ordinary course of business, and by the defences of lawful authority and consent.

Statements not referring to the plaintiff, and statements that no reasonable person would understand as referring to him.

Statements not published, that is, not communicated to a third person, which chapter [The Essentials of Defamation] deals with.

Reputation against privacy, and where the line falls in India

A true statement destroys a reputation just as effectively as a false one, and civil defamation gives no remedy for it. That gap is filled in India by the right to privacy.

Facts. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, decided on 7 October 1994. The editor and publisher of a Tamil magazine proposed to serialise the autobiography of a condemned prisoner, which described his links with several police officials. The State authorities warned them not to publish and threatened action, and they moved the Supreme Court under article 32.

Held. No prior restraint could be imposed on the press. The Court summarised the principles: the right to privacy is implicit in article 21 and is a right to be let alone, so nobody may publish anything concerning a person's home, family, marriage, procreation, motherhood, child-bearing or education without consent, whether truthful or otherwise; but publication based on public records, including court records, is unobjectionable, subject to an exception protecting the identity of a female victim of sexual assault or a like offence; and in the case of a public official no action for damages lies in respect of acts and conduct relevant to the discharge of official duties, even where the publication is untrue, unless the official proves that it was made with reckless disregard for truth, though a publication proved false and actuated by malice or personal animosity has no defence.

Why it matters here. It marks the boundary of the tort in India: what a true statement does not reach, privacy may; and against a public official the plaintiff must prove far more than an ordinary plaintiff.

A worked example

A newspaper prints four sentences about Ganesh, a municipal engineer.

One. "Ganesh takes bribes to pass building plans." Plainly defamatory: it tends to lower him in the estimation of right-thinking people and to expose him to contempt. Truth would be a defence, and the paper must prove it.

Two. "Ganesh is a fool who cannot read a drawing." Capable of being defamatory of him in his office, because it attacks his competence in his calling, but the same words shouted in a quarrel might be mere abuse.

Three. "Ganesh gave the police the names of the men who assaulted his neighbour." Not defamatory, although criminals may think worse of him: the test is the estimation of right-thinking members of society.

Four. "Ganesh's marriage is unhappy and his wife has left him." Not necessarily defamatory at all, since it imputes no discredit, but on R. Rajagopal it may be an invasion of privacy, because marriage is one of the matters expressly named there.

What it does NOT mean

It does not require proof that anybody thought worse of the plaintiff. The test is the tendency of the words.

It does not protect a reputation the plaintiff does not have. A person of admittedly bad character in the very respect complained of recovers little.

It does not cover hurt feelings alone. The interest is reputation with others, not self-esteem.

It does not stop at what is false. A true statement is not defamation, but it may still be an invasion of privacy under R. Rajagopal.

Quick revision

1. Defamation is the publication of a statement tending to lower the plaintiff in the estimation of right-thinking members of society generally.
2. Supplementary tests: exposure to hatred, contempt or ridicule; being shunned or avoided.
3. Subramanian Swamy v. Union of India, (2016) 7 SCC 221: reputation is part of the right to life under article 21.
4. Mere abuse, true statements, statements about the dead and unpublished statements are outside the tort.
5. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264: privacy is implicit in article 21; publication from public records is unobjectionable; a public official must prove reckless disregard for truth as to his official conduct.
6. Section 356 of the Bharatiya Nyaya Sanhita 2023 is the criminal counterpart.

Test yourself

1. Define defamation and state the test of a defamatory statement. Defamation is the publication to a third person of a statement concerning the plaintiff which tends to lower him in the estimation of right-thinking members of society generally, or to expose him to hatred, contempt or ridicule, or to cause him to be shunned or avoided. The test is objective and asks about the tendency of the words rather than their actual effect, so the plaintiff need not prove that anybody in fact thought worse of him. The standard is that of right-thinking members of society, so words that lower the plaintiff only in the eyes of people with discreditable standards, such as a statement that he assisted the police, are not defamatory. The interest protected is reputation, and in India the Supreme Court held in Subramanian Swamy v. Union of India, (2016) 7 SCC 221, that reputation is an integral part of the right to life under article 21.

2. Is a true statement ever actionable? Not as defamation. Truth, if pleaded and proved, is a complete defence in a civil action, because the law protects the reputation a person deserves rather than the reputation he enjoys. But a true statement may be actionable on another footing. In R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, the Supreme Court held that the right to privacy is implicit in article 21 and that nobody may publish anything concerning a person's home, family, marriage, procreation, motherhood, child-bearing or education without consent, whether truthful or otherwise, and that a person who does so is liable in damages. The exception is publication based on public records, including court records, subject to protection for the identity of a female victim of a sexual offence.

3. What is the position of a public official who complains of a publication about his official conduct? He is in a much weaker position than an ordinary plaintiff. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, holds that no action for damages is available to a public official in respect of acts and conduct relevant to the discharge of his official duties, even where the publication is untrue, unless he establishes that it was made with reckless disregard for truth. It is enough for the publisher to show that he acted after reasonable verification of the facts, and he need not prove that what he wrote was true. Where the publication is proved to be false and actuated by malice or personal animosity, the publisher has no defence. In matters unconnected with his official duties, the official has the same protection as any other citizen.

The Indian criminal law makes no distinction. Section 356 of the Bharatiya Nyaya Sanhita 2023 defines defamation as the making or publishing of any imputation concerning a person, by words either spoken or intended to be read, or by signs or by visible representations, intending to harm or knowing it likely to harm his reputation. Speech and writing are treated alike, and the offence is complete without any special damage.

Literacy and circulation. In a society in which much communication is oral, confining the ready remedy to the written word protects only those who are written about.

Say in an answer that the point is not concluded by the Supreme Court, and that the High Courts have taken the view stated. That is honest and it is what a careful examiner wants.

Limitation

The Limitation Act 1963 keeps the two apart and its wording repays reading. Article 75 gives one year for compensation for libel, running from when the libel is published. Article 76 gives one year for slander, running from when the words are spoken, or, if the words are not actionable in themselves, from when the special damage complained of results.

So the statute itself contemplates that some slanders are actionable in themselves and some are not, which is a point in favour of the four exceptions being recognised in India even by those who reject the general rule.

A worked example

At a shareholders' meeting, Ravi says aloud that Sunita, a chartered accountant, "has been falsifying the accounts for years". A newspaper reports the meeting the next day, quoting him.

Ravi's spoken words are slander in English law. But they impute both a criminal offence and unfitness in her profession, so they fall within two of the four exceptions and are actionable without proof of special damage even in England. In India, on the view stated above, they are actionable in any event.

The newspaper's report is libel, in permanent form, and is actionable per se. The paper may plead that its report of the meeting is protected by qualified privilege, which chapter [Defences to Defamation] examines, and the privilege is lost if Sunita proves malice.

If Ravi had merely said "Sunita is a fool", in anger, that would be neither: it is mere abuse and imputes nothing.

Limitation. Sunita has one year against Ravi from the day he spoke, under article 76, and one year against the newspaper from the day of publication, under article 75.

Distinctions that carry marks

What it does NOT mean

It does not mean spoken words are always harmless. The four exceptions cover most serious oral imputations even in England.

It does not mean the Indian position is settled by the Supreme Court. It is the view of High Courts, and an answer should say so.

It does not mean special damage is hurt feelings. It means actual material loss.

It does not affect the criminal law. Section 356 of the Bharatiya Nyaya Sanhita 2023 treats spoken and written imputations alike.

Quick revision

1. Libel: permanent form; slander: transient form.
2. In England libel is actionable per se and is a crime; slander needs special damage except in four cases.
3. The four exceptions: imputation of an imprisonable offence, of a contagious disease, of unfitness in office or calling, and of unchastity to a woman.
4. Special damage means material or temporal loss, not hurt feelings.
5. In India the distinction has largely not been followed and the better view is that slander too is actionable per se.
6. Section 356 of the Bharatiya Nyaya Sanhita 2023 makes no distinction between spoken and written imputations.
7. Limitation: article 75 for libel, article 76 for slander, both one year, with different starting points.

Test yourself

1. Distinguish libel from slander and state the exceptions in which slander is actionable per se. Libel is the publication of a defamatory statement in a permanent form, such as writing, printing, a picture, an effigy or a film, and slander is its publication in a transient form, such as spoken words or gestures. In English law libel is actionable per se and is also a crime, while slander is actionable only on proof of special damage, meaning actual material or temporal loss such as the loss of employment or of custom. Slander is actionable without such proof in four cases: where it imputes a criminal offence punishable with imprisonment; where it imputes a contagious or infectious disease which would cause the plaintiff to be shunned; where it imputes unfitness, dishonesty or incompetence in an office, profession, calling, trade or business carried on by the plaintiff; and where it imputes unchastity or adultery to a woman or girl.

2. Has the distinction between libel and slander been accepted in India? Not in its full form. The better view, taken by several High Courts, is that in India slander is also actionable without proof of special damage. Three reasons are given. English rules apply in India only so far as they suit Indian conditions, under the rule of justice, equity and good conscience, and a rule that denies a remedy to a plaintiff who cannot prove pecuniary loss does not. The Indian criminal law makes no such distinction: section 356 of the Bharatiya Nyaya Sanhita 2023 defines defamation as an imputation made by words spoken or intended to be read, or by signs or visible representations, so speech and writing are treated alike. And in a society where much communication is oral, confining the ready remedy to writing protects only the literate. The point has not been concluded by the Supreme Court, and an answer should say so.

3. What is special damage in the law of slander? Special damage means some actual material or temporal loss flowing from the publication, such as the loss of a job, the loss of custom in a business, the loss of a marriage prospect or the withdrawal of hospitality by friends. It does not include the loss of reputation itself, which the law presumes where the tort is actionable per se, and it does not include hurt feelings, mental distress or social embarrassment. The requirement matters because in English law it is the price of suing on a spoken statement outside the four exceptions, and the Limitation Act 1963 reflects it: article 76 runs from the speaking of the words, or, where they are not actionable in themselves, from the time the special damage results.

Essential three: publication

Publication means communication to at least one person other than the plaintiff. A letter of abuse sent by the defendant to the plaintiff alone is not defamation, though it may be another wrong.

Every repetition is a fresh publication. The person who repeats a defamatory statement is liable for his own publication of it, and it is no defence that he named his source or expressed disbelief.

Publication may be unintentional but must not be involuntary. Dictating a letter to a typist, or sending a postcard that anybody may read, is publication. Where a third person reads a sealed letter addressed to the plaintiff without authority, there is ordinarily no publication by the writer, unless he knew or ought to have anticipated it.

Between spouses. A communication by one spouse to the other is not publication, because in law husband and wife are treated as one for this purpose; but a communication by a stranger to one spouse about the other is publication.

On the internet. A statement placed on a website or sent to a group is published to everybody who reads it, and the tort is committed wherever it is read. Chapter [Defamation in India] deals with the practical consequences.

A worked example

A blog publishes: "The senior-most surgeon at the City Hospital has been operating while unqualified, and the College knows it."

Is it defamatory? Yes: it imputes both incompetence in a calling and complicity in a fraud.

Does it refer to the plaintiff? No name is given, but if the hospital has one senior-most surgeon, reasonable people who know the hospital will understand who is meant, and intention is irrelevant.

Was it published? Yes, to every reader, and each reader who forwards it publishes it again.

And an innuendo. Suppose the sentence were merely "The senior-most surgeon at the City Hospital was seen at the Medical Council's office on Tuesday." That is innocent on its face. If the plaintiff pleads and proves that the Council sits on Tuesdays only to hear complaints of professional misconduct, and that readers in the town know it, the sentence carries a defamatory innuendo.

And a class. If the blog had said "surgeons in this city operate while unqualified", no individual surgeon could sue, because the class is too large and the words do not point at anyone.

What it does NOT mean

It does not require the defendant to have intended to defame the plaintiff. Understanding, not intention, is the test of reference.

It does not require wide circulation. Publication to one person is enough, though circulation affects the damages.

It does not make every member of a class a plaintiff. The class must be small enough, or the words pointed enough, to identify him.

It does not treat a letter to the plaintiff alone as defamation. There is no publication.

Quick revision

1. Three essentials: the statement must be defamatory, must refer to the plaintiff, and must be published.
2. Words are read as a whole; the bane may be cured by the antidote.
3. Innuendo: a defamatory meaning arising from extrinsic facts, which must be pleaded and proved.
4. Reference: the test is whether reasonable people who know the plaintiff would understand the words as referring to him; intention is irrelevant.
5. Class defamation is actionable only where the class is small or the words point at the plaintiff.
6. Publication: communication to at least one person other than the plaintiff; every repetition is a fresh publication.
7. Communication between spouses is not publication; a postcard or a dictated letter is.

Test yourself

1. State and explain the essentials of defamation. Three. First, the statement must be defamatory, that is, it must tend to lower the plaintiff in the estimation of right-thinking members of society generally, or expose him to hatred, contempt or ridicule, or cause him to be shunned; the words are construed as a whole, and a defamatory meaning may arise from extrinsic facts by way of innuendo. Second, it must refer to the plaintiff, and the test is whether reasonable people who know him would understand the words as referring to him; his name need not be used, and the defendant's intention is irrelevant. Third, it must be published, that is, communicated to at least one person other than the plaintiff, since the tort protects his standing with others and not his own feelings.

2. What is innuendo? Distinguish its two kinds. An innuendo is a defamatory meaning that words bear otherwise than on their face. A true or legal innuendo arises from facts extrinsic to the statement which are known to some of those who read it, so that words innocent to the general reader are defamatory to them; the plaintiff must plead the innuendo and prove the extrinsic facts and that they were known to readers. A false or popular innuendo is not really an innuendo at all: it is the ordinary meaning that a reasonable reader would take from the words read between the lines, and it need not be specially pleaded. The classical illustration of the first is a statement that a woman has borne a child, innocent in itself but defamatory to those who know she is unmarried.

3. What amounts to publication, and when is there none? Publication is the communication of the defamatory matter to at least one person other than the plaintiff. It need not be wide: one reader is enough, though circulation affects damages. Every repetition is a fresh publication, and it is no defence that the repeater named his source or expressed disbelief. Dictating a letter to a typist, and sending a postcard or an open telegram, are publications. There is no publication where the defendant communicates the matter to the plaintiff alone, or where a third person reads a sealed letter without authority and the writer neither knew nor ought to have anticipated it, or where one spouse communicates it to the other, since husband and wife are treated as one for this purpose. A communication by a stranger to one spouse about the other is publication.

Parliamentary proceedings. Articles 105 and 194 of the Constitution protect anything said and any vote given in Parliament and in a State Legislature respectively, and the publication of reports and proceedings by or under their authority.

Judicial proceedings. Statements by judges, counsel, parties and witnesses in the course of judicial proceedings are absolutely privileged, so that everybody may speak freely in court. The protection extends to tribunals exercising judicial functions.

Official communications. Communications between officers of State in the course of official duty.

Communications between spouses, which are in any event not published, as chapter [The Essentials of Defamation] explains.

4. Qualified privilege

The occasion is privileged, but the privilege is lost if the plaintiff proves malice in fact, that is, spite or an improper motive, as chapter [The Mental Element in Tort] defines it.

The test is that the maker had a legal, social or moral duty to make the statement, or an interest to protect, and the person to whom it was made had a corresponding duty or interest to receive it. The reciprocity is essential: a statement broadcast to the world is not protected merely because one of its readers had an interest in it.

The standard instances are a reference given by a former employer, a complaint made to the authority with power to act on it, a report by an agent to his principal, a statement made in self-defence against an attack, and a fair and accurate report of parliamentary or judicial proceedings.

How the privilege is lost. By proof that the defendant did not believe what he said, or spoke from spite, or went beyond what the occasion required, or published more widely than the duty or interest called for.

5. Apology, and mitigation

At common law an apology is not a defence. It goes to the damages, and a prompt and full apology may reduce them substantially. In England a statutory defence exists for newspapers on terms; in India there is no equivalent general statutory defence, and an apology is therefore a matter of mitigation.

Other matters in mitigation: the plaintiff's own bad reputation in the respect complained of, provocation by the plaintiff, and the fact that the same libel has already been compensated elsewhere.

The public official, and the Indian gloss

Facts. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, decided on 7 October 1994. The editor and publisher of a Tamil magazine proposed to serialise a condemned prisoner's autobiography, which described his links with police officials, and the authorities threatened action to stop it.

Held. No prior restraint could be imposed. Among the principles the Court summarised was this: in the case of a public official, no action for damages lies in respect of acts and conduct relevant to the discharge of his official duties, even where the publication is untrue, unless the official establishes that it was made with reckless disregard for truth; it is enough for the publisher to show that he acted after reasonable verification of the facts, and he need not prove that what he wrote was true. Where the publication is proved false and actuated by malice or personal animosity, there is no defence.

Why it matters here. It gives Indian law a defence for the press about official conduct which is wider than fair comment and wider than qualified privilege, and it is what a student should cite when asked about the balance between reputation and free speech.

A worked example

A magazine publishes: "Contractor Q got the bridge contract because he paid the Minister. Q's earlier bridge at Y collapsed, and anyone who has seen it knows why: the man builds with sand."

"Q paid the Minister" is an allegation of fact. The defences available are justification, if the magazine can prove it, and, so far as the Minister's official conduct is concerned, the R. Rajagopal protection, which puts on the Minister the burden of showing reckless disregard for truth. As against Q, who is not a public official, that protection does not apply.

"Q's earlier bridge at Y collapsed" is a fact. If true, justification protects it.

"The man builds with sand" is comment on those facts. If the facts are true, the subject is of public interest, and the opinion is one an honest person could hold, fair comment protects it, unless Q proves malice.

If the magazine apologises the next week, that is not a defence, but it will reduce the damages.

Distinctions that carry marks

What it does NOT mean

Truth is not a defence in the criminal law by itself. Section 356 of the Bharatiya Nyaya Sanhita 2023 requires that publication also be for the public good.

Fair comment does not protect a misstatement of fact. It protects opinion on true facts.

Qualified privilege is not lost by mere carelessness. It is lost by malice, which means an improper motive or want of honest belief.

An apology is not a defence. It mitigates.

Quick revision

1. Five defences: justification, fair comment, absolute privilege, qualified privilege, apology in mitigation.
2. Truth is a complete civil defence and the burden is on the defendant; substantial truth is enough.
3. Section 356 of the Bharatiya Nyaya Sanhita 2023 requires truth AND public good for the criminal defence.
4. Fair comment: comment not fact, on true facts, on a matter of public interest, honestly held; malice destroys it.
5. Absolute privilege: articles 105 and 194 for legislatures, judicial proceedings, State communications; malice is irrelevant.
6. Qualified privilege: duty or interest with reciprocity; destroyed by malice in fact or by excess of publication.
7. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264: as to a public official's official conduct, the official must prove reckless disregard for truth.
8. Apology is not a defence but reduces damages.

Test yourself

1. What defences are available in an action for defamation? Five. Justification, that is, truth: a complete defence in civil law, the burden being on the defendant, and substantial truth of the sting sufficing. Fair comment: an honest expression of opinion, based on facts which are true and stated or indicated, on a matter of public interest, defeated by malice. Absolute privilege: statements in Parliament or a State Legislature under articles 105 and 194 of the Constitution, statements by judges, counsel, parties and witnesses in judicial proceedings, and communications between officers of State, none of which is affected by malice. Qualified privilege: a statement made in the discharge of a legal, social or moral duty, or in the protection of an interest, to a person with a corresponding duty or interest, defeated by proof of malice in fact or by publication wider than the occasion required. And apology, which is not a defence but mitigates the damages.

2. Distinguish absolute from qualified privilege. Absolute privilege attaches to the occasion itself, so that no action lies however false the statement and however malicious the maker; it covers proceedings in Parliament and State Legislatures under articles 105 and 194, judicial proceedings, and communications between officers of State, and it exists because those occasions would be useless if participants had to weigh every word against the risk of a suit. Qualified privilege attaches to the proper use of an occasion: it protects a statement made in the discharge of a duty or the protection of an interest to a person having a corresponding duty or interest, and it is lost if the plaintiff proves malice in fact, or that the defendant did not believe what he said, or that he published more widely than the occasion required.

3. How does the defence of truth differ in civil and criminal defamation? In the civil action truth alone is a complete defence: the defendant who proves that the statement is substantially true wins, whatever his motive, because the law protects the reputation a person deserves. In the criminal law the defence is narrower. Section 356 of the Bharatiya Nyaya Sanhita 2023 makes it an exception that the imputation is true and that its publication is for the public good, and whether the publication is for the public good is a question of fact. So a true but gratuitous exposure of a private matter may found a prosecution although it could not found a civil suit, which is one reason the criminal remedy is criticised and was nevertheless upheld in Subramanian Swamy v. Union of India, (2016) 7 SCC 221.

4. When may a newspaper rely on fair comment? When four conditions are satisfied. The matter complained of must be comment, that is, an expression of opinion, and not an assertion of fact, so a newspaper that asserts corruption cannot call it comment. The facts on which the comment is based must be true and must be stated or sufficiently indicated, so that the reader can judge the opinion for himself. The subject must be one of public interest, which includes the administration of justice, the conduct of public servants and institutions, and anything submitted to public judgment. And the comment must be fair, in the sense that an honest person could hold it on those facts, however exaggerated or prejudiced; proof of malice defeats the defence because it shows the opinion was not honestly held.

The press, the public official and the truth that cannot be proved

Facts. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, decided on 7 October 1994. A magazine proposed to serialise the autobiography of a condemned prisoner naming police officials, and the authorities threatened action to prevent publication.

Held. No prior restraint could be imposed on the press. The right to privacy is implicit in article 21 and nothing concerning a person's home, family, marriage, procreation, motherhood, child-bearing or education may be published without consent, whether truthful or not, subject to the exception that publication based on public records, including court records, is unobjectionable, with a further exception protecting the identity of a female victim of a sexual offence. As to a public official's acts and conduct relevant to the discharge of his official duties, no action for damages lies even where the publication is untrue, unless the official establishes reckless disregard for truth; it is enough for the publisher to show reasonable verification. A publication proved false and actuated by malice or personal animosity has no defence.

Why it matters here. It is the Indian answer to the question of how a newspaper is to criticise a public official when it cannot prove every fact, and it is the case to cite on the balance between article 19(1)(a) and article 21.

Defamation on the internet

Nothing in the tort changes, but three consequences follow from the medium.

Publication is wherever the statement is read. A post uploaded in one State and read in another is published in both, which affects where a suit may be filed.

Every forward is a fresh publication. The person who shares a defamatory message publishes it, and it is no defence to say who wrote it first.

The intermediary. A platform that merely hosts what users write is in a different position from the person who wrote it, and the extent of its protection is governed by the law on intermediaries rather than by the law of torts.

The practical remedy sought in these cases is usually an injunction to take the material down, which chapter [Injunction and Specific Restitution of Property] deals with, rather than damages.

A worked example

A former employee posts on a public forum that Meena, who runs a coaching class, "cheats her students and keeps their fees".

In tort. Meena sues for damages. The statement is defamatory, refers to her and was published. The poster must prove it substantially true if he pleads justification.

In the criminal law. She may file a complaint under section 356 of the Bharatiya Nyaya Sanhita 2023. There the poster's defence of truth will not succeed unless he also shows that publication was for the public good, which is a question of fact.

Against those who shared it. Every person who forwarded the post published it and may be sued; naming the original author is no defence.

If Meena were a public official and the statement concerned her official conduct, R. Rajagopal would require her to establish reckless disregard for truth, and reasonable verification by the poster would be enough to defeat her claim.

What she really wants is the post taken down, so the practical relief is an injunction.

What it does NOT mean

It does not mean the criminal remedy has been struck down. Subramanian Swamy v. Union of India, (2016) 7 SCC 221, upheld it.

It does not mean the section numbers of the Penal Code still apply. Since 1 July 2024 the provision is section 356 of the Bharatiya Nyaya Sanhita 2023.

It does not mean a public official cannot sue at all. He may, on his private conduct like anybody else, and even on his official conduct where he proves reckless disregard for truth or malice.

It does not mean an internet platform is liable like an author. That question belongs to the law on intermediaries.

Quick revision

1. Defamation in India is both a tort and an offence, and the proceedings are independent.
2. The offence is section 356 of the Bharatiya Nyaya Sanhita 2023; sections 499 and 500 of the Indian Penal Code 1860 stand repealed since 1 July 2024.
3. Subramanian Swamy v. Union of India, (2016) 7 SCC 221: criminal defamation upheld; reputation is part of article 21; a reasonable restriction under article 19(2).
4. Civil truth is a complete defence; Exception 1 to section 356 requires truth and public good, and public good is a question of fact.
5. R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264: no prior restraint; privacy under article 21; public records exception; public officials must prove reckless disregard for truth.
6. Online: publication where read, every forward is a fresh publication, and the usual relief is an injunction.

Test yourself

1. Discuss the constitutional validity of criminal defamation in India. It was upheld in Subramanian Swamy v. Union of India, (2016) 7 SCC 221. The petitioners argued that making defamation an offence is an unreasonable restriction on the freedom of speech guaranteed by article 19(1)(a), and that the civil remedy is sufficient. The Supreme Court held that reputation is an integral part of the right to life under article 21, that a citizen's right to reputation must be balanced against another's right to speak rather than yield to it, and that criminal defamation is a reasonable restriction saved by article 19(2). It accordingly upheld what were then sections 499 and 500 of the Indian Penal Code 1860 and section 199 of the Code of Criminal Procedure 1973, leaving individual petitioners free to challenge the issue of summons in their own cases under article 226 or section 482. Since 1 July 2024 the corresponding provision is section 356 of the Bharatiya Nyaya Sanhita 2023.

2. How does Indian law balance the freedom of the press against the right to reputation? Through the principles laid down in R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264. The Court refused to allow prior restraint on publication. It held that the right to privacy is implicit in article 21, so that matters such as a person's family, marriage and motherhood may not be published without consent even if true, unless the publication is based on public records, with a further exception protecting the identity of a female victim of a sexual offence. And it held that a public official has no action in respect of publications about his official conduct, even untrue ones, unless he establishes reckless disregard for truth, it being enough for the publisher to show reasonable verification. The result is a wide space for criticism of official conduct, a protected space for private life, and liability where a publication is false and malicious.

3. A defamatory message is forwarded by twenty people on a messaging application. Who is liable? Each of them, and the author. Every repetition of a defamatory statement is a fresh publication, so each person who forwarded the message published it to those who received it, and it is no defence that he named the original author or expressed disbelief. Liability is not affected by the medium: a message read on a telephone is published as surely as one printed in a newspaper, and it is published wherever it is read, which is why such suits may be filed in more than one place. The platform itself stands differently, since its position is governed by the law relating to intermediaries rather than by the ordinary law of publication. The practical relief sought is usually an injunction to remove the material rather than damages against twenty defendants.

Consortium means the society, comfort, care and companionship of a family member. Indian law now recognises three forms: spousal consortium, the company and affection of a husband or wife; parental consortium, the loss a child suffers by the death of a parent; and filial consortium, the loss a parent suffers by the death of a child.

The Indian case that made consortium a standard head

Facts. Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram, decided on 18 September 2018. The claim arose out of a fatal motor accident and the question was what heads of compensation the dependants were entitled to under section 168 of the Motor Vehicles Act 1988, which requires the Claims Tribunal to award compensation which appears to it to be just.

Held. The Court held that loss of consortium is a head of compensation in its own right, and that it is not confined to a spouse: parental consortium, which is the loss to a child of the care and company of a parent, and filial consortium, which is the loss to a parent of the company of a child, are also compensable. It also treated the conventional heads of loss of estate and funeral expenses as separate from consortium, and awarded them in addition.

Why it matters here. It converts an old proprietary idea into a modern one: the claim is no longer for the loss of a person's services as an asset, but for the loss of a relationship, and it is available to wives, husbands, children and parents alike. Chapter [Computing Just Compensation] shows how the head fits into the arithmetic of an award.

A worked example

Anand is killed in a road accident. He leaves a wife, a nine-year-old son and an elderly mother, and he had employed a driver whose wages he paid.

Enticement, harbouring and seduction have nothing to do with the case, and no Indian court would entertain an action of that kind today.

Loss of consortium is claimed by all three: spousal consortium for the wife, parental consortium for the son and filial consortium for the mother, on the authority of Magma General Insurance Co. Ltd v. Nanu Ram.

The driver has no claim for the loss of his employment. The old action was the master's for the loss of his servant's services, never the servant's for the loss of his master.

And if Anand had been injured rather than killed, his wife's claim for loss of consortium during the period of his incapacity would be part of the compensation awarded, the assessment being governed by section 168 of the Motor Vehicles Act 1988 and the cases in chapter [Computing Just Compensation].

What it does NOT mean

It does not mean a spouse is property. The modern head compensates the loss of a relationship, not the loss of an asset.

It does not mean these actions still lie in India. They are effectively dead, and matrimonial law provides the remedies.

It does not mean consortium is available only to a widow. Magma General Insurance Co. Ltd v. Nanu Ram recognises parental and filial consortium as well.

It does not mean the loss of services head has no descendants. It survives as a head of dependency in fatal accident claims.

Quick revision

1. The four old wrongs: enticement, harbouring, seduction, and loss of services or consortium.
2. They rest on the husband's proprietary interest in his wife and the master's in his servant, both abandoned.
3. Abolished by statute in England in 1970; in India effectively dead, and inconsistent with constitutional equality.
4. What survives is compensation for loss of consortium.
5. Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram, 18 September 2018: spousal, parental and filial consortium are all compensable, in addition to loss of estate and funeral expenses.
6. Section 168 of the Motor Vehicles Act 1988 requires the Tribunal to award just compensation, and consortium is part of it.
7. Limitation for the old action for loss of service by seduction: article 77 of the Schedule to the Limitation Act 1963, one year from when the loss occurs.

Test yourself

1. What are the torts affecting personal relations, and what is their position today? They are enticement of a spouse, harbouring a spouse, seduction of a daughter or servant, and the causing of loss of services or of consortium. Each rests on a premise the modern law has abandoned: the husband's proprietary interest in his wife's society and services, and the master's interest in the services of his servant, a daughter being treated as a servant by a fiction so that her father could sue her seducer. In England they were abolished by statute in 1970. In India there is no such statute, but they are effectively obsolete, both because their proprietary premise is inconsistent with constitutional equality and because matrimonial law now provides the appropriate remedies. What survives is compensation for loss of consortium, and it is regularly awarded in motor accident claims.

2. Explain loss of consortium as a head of compensation in Indian law. Consortium means the society, comfort, care and companionship of a family member. In Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram, decided on 18 September 2018, the Supreme Court held that loss of consortium is a head of compensation in its own right in a claim under the Motor Vehicles Act 1988, and that it is not confined to a spouse: a child who loses a parent may claim parental consortium and a parent who loses a child may claim filial consortium. The award is made in addition to the conventional heads of loss of estate and funeral expenses, and it is part of the just compensation which section 168 of the Act requires the Claims Tribunal to determine. The head illustrates how an old proprietary action has been replaced by a modern one that compensates the loss of a relationship.

Four factors decide it.

Locality. What is reasonable in an industrial area is not reasonable in a residential one. The rule is often put as: a person who comes to live beside a foundry cannot expect the quiet of a village.

Duration and continuity. An isolated act is rarely a nuisance; a state of affairs continuing over time usually is. A single blast may be a trespass or negligence, while blasting every night for a month is a nuisance.

Extent of the harm. Trivial interference is not actionable; the maxim is de minimis non curat lex, the law does not concern itself with trifles.

The plaintiff's own sensitivity. The standard is that of an ordinary person, and an unusually delicate trade or an unusually sensitive plaintiff cannot raise the standard for everybody.

The two kinds of harm

Material or physical damage to property, such as cracks caused by vibration, crops killed by fumes, or a wall pushed over by roots. Here the locality matters much less: no locality entitles a neighbour to damage property.

Interference with comfort and convenience, such as noise, smell and smoke. Here the locality matters a great deal, and the test of what an ordinary person would tolerate does the work.

A worked example

Farida runs a small dairy behind her house in a residential lane in Pune. Her neighbour Hari complains of four things.

One. The smell of the cattle shed. This is interference with comfort, and the answer turns on locality, duration and the standard of an ordinary person. In a residential lane a smell strong enough to keep windows shut is likely to be a nuisance.

Two. Flies from the shed settling on Hari's food. The same analysis, and the harm is more serious.

Three. Water from washing the shed seeping into Hari's wall and cracking the plaster. This is material damage to property, and locality is no answer.

Four. Hari, who runs a photographic studio in his back room, says the vibration of the milk machine ruins his long-exposure work. This engages the sensitivity rule: if an ordinary occupier would not be affected, the delicate trade does not raise the standard.

And one more. Suppose Farida's cattle stray on to Hari's land. That is not a nuisance at all; it is a trespass, because the interference is direct.

What it does NOT mean

It does not give a right to absolute comfort. The test is what an ordinary person in that locality should be expected to put up with.

It does not require the defendant to be at fault. Nuisance is not negligence, and a defendant may be liable for a state of affairs on his land which he did not create, if he adopts or continues it.

It does not protect a hypersensitive plaintiff. The standard is objective.

It does not need a direct act. Directness is the mark of trespass, not of nuisance.

Quick revision

1. Nuisance: unlawful interference with the use or enjoyment of land, or with a right over it, or with a public right.
2. Two kinds: public, an injury to the public at large, and private, an injury to a particular occupier.
3. Trespass is direct and actionable per se; nuisance is indirect and ordinarily needs damage.
4. The test is reasonableness, decided by locality, duration and continuity, the extent of the harm, and the plaintiff's ordinary rather than special sensitivity.
5. For material damage to property, locality carries little weight; for interference with comfort, it carries a great deal.
6. De minimis non curat lex: trivial interference is not actionable.

Test yourself

1. Define nuisance and distinguish it from trespass. Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it, or with a right common to the public. Trespass is a direct interference with possession. Three differences follow. Trespass requires directness, so throwing stones on to land is trespass while letting smoke drift on to it is nuisance. Trespass protects possession while nuisance protects enjoyment, so a person who is not dispossessed at all may still sue in nuisance. And trespass is actionable per se while nuisance ordinarily requires proof of damage. The same facts may give both: planting a tree across the boundary is trespass, while allowing its branches to overhang is a nuisance for as long as they do.

2. What factors decide whether an interference is a nuisance? Reasonableness, judged by four factors. The locality, since what is tolerable in an industrial area is not tolerable in a residential one, though this counts for little where actual physical damage to property is caused. The duration and continuity of the interference, since an isolated act is rarely a nuisance while a continuing state of affairs usually is. The extent of the harm, since the law does not concern itself with trifles. And the standard of an ordinary person rather than of the particular plaintiff, so that an unusually delicate trade or an unusually sensitive occupier cannot raise the standard for the neighbourhood. The question in every case is whether an ordinary occupier of that land in that locality should be expected to put up with the interference.

3. Does nuisance depend on the defendant being at fault? Not in the way negligence does. The question is whether the interference with the plaintiff's enjoyment is unreasonable, not whether the defendant took reasonable care, so a defendant who has taken every precaution may still be liable if the result is an unreasonable interference. Fault enters at the margins: a defendant is liable for a state of affairs he did not create if, knowing of it, he adopts or continues it, and reasonable care may be relevant to whether an isolated escape was a nuisance at all. But a plea that the defendant was careful, or that his activity is useful to the public, is not an answer to a nuisance.

The tort, and the special damage rule

A public nuisance is a tort at the suit of a private individual only where he proves special damage. That means damage which is:

Particular to him, and not merely a share of the inconvenience the public suffers; and

Different in kind, or at least substantially greater in degree, than what the public suffers; and

Direct, not remote.

The reason for the rule is practical: if every member of the public could sue for an obstruction on a highway, one obstruction would produce ten thousand suits, and the criminal law and the Magistrate's power exist precisely to deal with the public aspect of the wrong.

Examples of special damage recognised in the cases: a shopkeeper whose customers cannot reach his shop because of a long obstruction of the road; a person whose vehicle is damaged by an unlighted heap left on the highway; a person who suffers illness from a polluted water supply.

Not special damage: having to walk further, being delayed, or sharing the general discomfort.

A worked example

A builder dumps sand across a public lane in Nagpur for three months.

The public. Every user of the lane is inconvenienced. That is the common injury which makes it a public nuisance under section 270 of the Bharatiya Nyaya Sanhita 2023.

A resident who is delayed each morning has no civil action: his harm is the same in kind as everybody else's.

A shopkeeper on that lane, whose customers cannot reach him and whose takings fall, has special damage: it is particular to him and different in kind, so he may sue in tort for damages and for an injunction.

A cyclist who rides into the heap at night and is injured has special damage too, and may also sue in negligence.

Any two residents, with the leave of the court, may sue under section 91 of the Code of Civil Procedure 1908 for a declaration and an injunction, without proving special damage at all.

And the quickest route is a complaint to the Magistrate, who may pass a conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 requiring the sand to be removed within a fixed time.

Distinctions that carry marks

What it does NOT mean

It does not mean nobody can sue. A person with special damage may sue in tort, and two or more persons may sue under section 91 of the Code of Civil Procedure 1908 with leave.

It does not mean inconvenience is enough. Special damage must be particular to the plaintiff and different in kind from the public's.

It does not mean a useful activity is exempt. Public benefit is not a defence to a nuisance, though it may bear on the relief granted.

It does not require ownership of land by the plaintiff. Unlike private nuisance, the plaintiff's interest is in the public right, not in his land.

Quick revision

1. Public nuisance: an act or illegal omission causing common injury, danger or annoyance to the public, section 270 of the Bharatiya Nyaya Sanhita 2023.
2. It is primarily an offence, not a tort.
3. A private person may sue in tort only on proof of special damage: particular to him, different in kind or substantially greater in degree, and direct.
4. Delay and general inconvenience are not special damage.
5. Section 91 of the Code of Civil Procedure 1908: a suit for declaration and injunction by the Advocate-General, or by two or more persons with leave, without special damage.
6. Section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023: a Magistrate's conditional order for removal, with sections 153 to 156 for service, compliance, penalty and procedure.
7. Three routes: prosecute, apply to a Magistrate, or sue.

Test yourself

1. What is a public nuisance, and when may a private person sue for it? A public nuisance is an act or an illegal omission which causes common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which necessarily causes injury, obstruction, danger or annoyance to persons who may have occasion to use a public right: that is the definition in section 270 of the Bharatiya Nyaya Sanhita 2023. It is primarily an offence, because the wrong is done to the public at large. A private person may sue in tort only if he proves special damage, meaning damage particular to himself, different in kind or substantially greater in degree than that suffered by the public generally, and direct rather than remote. A shopkeeper whose customers cannot reach him because a road is blocked has special damage; a passer-by who is merely delayed does not.

2. What remedies exist against a public nuisance in India? Three. The State may prosecute under section 270 of the Bharatiya Nyaya Sanhita 2023, which is the primary remedy since the wrong is public. A Magistrate may pass a conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 requiring the removal of an unlawful obstruction or nuisance from a public place, the stopping of a trade injurious to the health or comfort of the community, the fencing of a tank, well or excavation, or the disposal of a dangerous animal, within a fixed time, and sections 153 to 156 provide for service, compliance, penalty and the procedure thereafter; this is the quickest route in practice. And a civil suit for a declaration and an injunction lies under section 91 of the Code of Civil Procedure 1908 at the instance of the Advocate-General or, with the leave of the court, of two or more persons, even though no special damage has been caused to them.

3. Why is special damage required, and what counts as special damage? It is required because a public nuisance injures everybody, and if every member of the public could sue, a single obstruction would generate an unmanageable number of identical suits; the public aspect of the wrong is left to the criminal law and to the Magistrate's summary power. Special damage means harm particular to the plaintiff, different in kind from what the public suffers, or at least substantially greater in degree, and directly caused. Loss of custom by a shopkeeper cut off by an obstruction, physical injury from an unlighted heap on a highway, and illness from a polluted supply have all been treated as special damage. Having to take a longer route, being delayed, or sharing the general discomfort of a smell or a noise is not.

Coming to the nuisance is no defence. It is no answer that the plaintiff moved in after the defendant's activity began, because the law does not allow one occupier to fix the character of a locality against later comers.

Public benefit is no defence. That the defendant's factory employs hundreds does not entitle it to make life on the neighbouring land intolerable; the point may bear on whether an injunction or damages is the proper relief.

The hypersensitive plaintiff is not protected. Where an ordinary occupier would not be affected, an unusually delicate use of land gives no action, and the Indian illustration of the principle is the refusal to treat annoyance to feelings as an actionable injury in Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13.

Facts. In that case the plaintiffs sued in the City Civil Court at Ahmedabad for an injunction restraining the exhibition of the film Jai Santoshi Maa, saying it hurt the religious feelings of a section of Hindus, and applied for a temporary injunction; the trial judge refused it, holding that no civil right of theirs was involved.

Held. The appeal was dismissed. Hurt to religious feelings has not been recognised by the courts as a civil actionable wrong; mere annoyance to feelings, without any pecuniary or tangible loss, cannot found an injunction; and a plaintiff must show a substantial injury which the court can recognise.

Why it matters here. It shows where the boundary of the tort lies. The law protects the enjoyment of land against interferences an ordinary person would find substantial, not every feeling that can be hurt.

A worked example

A bakery starts night work next to Sharmila's house in a residential colony.

The ovens run from midnight to four. Noise and heat interfere with sleep. In a residential locality that is likely to be a nuisance: the interference is with comfort, it is continuous, and an ordinary occupier would find it substantial.

Flour dust settles on her terrace and stains the walls. That is material damage to property, and here the locality counts for little.

Sharmila keeps rare orchids which die from the heat, though ordinary plants would not. The hypersensitivity rule applies: if an ordinary occupier's plants would have survived, the orchids give no separate claim.

Sharmila moved in two years after the bakery opened. Coming to the nuisance is no defence.

The bakery says it supplies bread to three hospitals. Public benefit is no defence, though it may persuade a court to award damages rather than close the bakery at night.

The bakery turns up its music at 2 a.m. only when Sharmila complains. Malice may turn what would otherwise be a reasonable use into an unreasonable one.

What it does NOT mean

It does not require the defendant to be negligent. The question is whether the interference is unreasonable, not whether care was taken.

It does not require the plaintiff to own the land. Occupation with an interest in the land is enough, and an owner out of occupation may sue for permanent injury to his reversion.

It does not protect against every discomfort. The standard is that of an ordinary person, and trifles are outside the law.

It is not defeated by the plaintiff having come to the nuisance.

Quick revision

1. Private nuisance: unreasonable interference with the use or enjoyment of land, or with a right over it.
2. Essentials: unreasonable interference, with land or a right over it, causing material damage or substantial discomfort.
3. Who may sue: the occupier, and an owner for permanent injury to the reversion.
4. Who may be sued: the creator, the occupier who continues or adopts, and in three cases the landlord.
5. Malice may make an otherwise reasonable use unreasonable.
6. Coming to the nuisance and public benefit are not defences; hypersensitivity gains nothing.
7. Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj 13: hurt to religious feelings is not a civil actionable wrong; mere annoyance to feelings will not found an injunction.

Test yourself

1. What are the essentials of private nuisance? Three. There must be an unreasonable interference, judged by the standard of an ordinary occupier of that land in that locality, having regard to the locality itself, the duration and continuity of the interference, its extent, and the fact that an unusually sensitive plaintiff is not protected. The interference must be with the use or enjoyment of land, or with some right over or in connection with it, such as an easement of way, light, air or support. And there must be damage, either material damage to the property, in which case the locality counts for little, or substantial interference with comfort and convenience, in which case it counts for much; where an easement is interfered with, damage is presumed.

2. Who may sue and who may be sued in private nuisance? The occupier of the affected land may sue, because the interest protected is the use and enjoyment of land, and an owner out of occupation may sue where the nuisance causes permanent injury to his reversionary interest; a bare licensee with no interest in the land ordinarily cannot. Three classes may be sued: the creator of the nuisance, whether or not he occupies the land from which it comes; the occupier who continues or adopts a nuisance created by a predecessor, a trespasser or by nature, once he knows of it and fails to abate it; and the landlord, where he authorised the nuisance, where it existed at the date of the letting and he knew or ought to have known of it, or where he had undertaken to repair.

3. "Coming to the nuisance is no defence." Explain, and say what defences do exist. It is no answer that the plaintiff acquired or came to occupy his land after the defendant's activity had begun, because otherwise the first occupier of a locality could fix its character permanently and later comers would take it as they found it, however unreasonable the interference. Nor is it a defence that the defendant's activity benefits the public, though that may persuade a court to award damages instead of an injunction, or that the defendant took all reasonable care, since nuisance is not negligence. The defences that do exist are prescription, where the nuisance has been continued as of right for twenty years so that an easement to commit it has been acquired, and statutory authority, where the legislature has authorised the very thing complained of; chapter [Defences and Remedies in Nuisance] works both out.

An injunction is discretionary. Where the injury is small, capable of being estimated in money, and adequately compensated by a small payment, a court may award damages instead, and the public importance of the defendant's activity may weigh in that decision.

3. Abatement. The person injured may himself remove the nuisance, and chapter [Extra-Judicial Remedies] takes the rules. The right is narrow: notice must ordinarily be given first, no more must be done than is necessary, and where there is a choice the least mischievous method must be taken. A person who abates a nuisance without notice, or who does more than is necessary, becomes a wrongdoer himself.

4. And for a public nuisance, the Magistrate's conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023, and a suit under section 91 of the Code of Civil Procedure 1908, as chapter [Public Nuisance] sets out.

Limitation, and the point about continuing nuisance

Most nuisances are continuing, and section 22 of the Limitation Act 1963 provides that in the case of a continuing tort a fresh period of limitation begins to run at every moment during which the tort continues. So an action is not barred while the nuisance lasts, though damages are confined to the period within limitation.

Section 23 matters where the wrong is not actionable without special damage: the period is computed from the time the injury results, not from the act.

A worked example

For twenty-two years a workshop next to Zoya's house has run a lathe from nine in the morning to six in the evening. Zoya bought the house four years ago. This year the workshop added a night shift.

The day working. The workshop may claim a prescriptive right, since the noise has been made openly, as of right and without permission for more than twenty years. Zoya's recent purchase does not restart the clock, because prescription runs against the land.

The night shift. No prescriptive right can exist, because it began this year. Whether it is a nuisance depends on locality, duration and the standard of an ordinary occupier, and night noise in a residential area is very likely to be one.

Zoya's remedies. Damages for the disturbance, and, more usefully, a perpetual injunction under section 38 of the Specific Relief Act 1963 restraining work between fixed hours. If the workshop has built a wall that channels the noise into her window, a mandatory injunction under section 39 may compel its removal.

Abatement. Zoya may not walk into the workshop and switch off the lathe. Abatement is available for a nuisance she can remove from her own land or, in narrow circumstances, by entering after notice; it is not a licence to interfere with the defendant's business.

Limitation. Section 22 of the Limitation Act 1963 gives her a fresh cause of action every day the night shift continues.

What it does NOT mean

Prescription does not legalise a public nuisance. However long it has continued.

Statutory authority does not authorise negligence. Only the act and its necessary consequences.

An injunction is not automatic. It is discretionary, and damages may be awarded instead where the injury is small and can be compensated in money.

Abatement is not self-help at large. Notice, necessity and the least mischievous method are all required.

Quick revision

1. Two defences: prescription, twenty years as of right, and statutory authority.
2. Prescription runs from when the nuisance began, not from when the activity began, and never against a public nuisance.
3. Not defences: coming to the nuisance, public benefit, contribution by others, reasonable care, and suitability of the locality.
4. Remedies: damages, injunction under sections 38 and 39 of the Specific Relief Act 1963, and abatement.
5. An injunction is discretionary; damages may be substituted where the injury is small and quantifiable.
6. Abatement requires notice, necessity and the least mischievous method.
7. Section 22 of the Limitation Act 1963 gives a fresh period every moment of a continuing nuisance; section 23 postpones the start where special damage is needed.

Test yourself

1. What defences are available in an action for nuisance? Two are real. Prescription: a right to commit what would otherwise be a private nuisance may be acquired as an easement by twenty years of continuous enjoyment as of right, that is, openly, without force and without permission; time runs from the date the nuisance began to affect the plaintiff and not from the date the defendant's activity began, and no period of time will legalise a public nuisance. Statutory authority: where a statute authorises the very act complained of, the harm inevitably resulting from it is not actionable, though the authority never extends to a negligent manner of doing the act, and where the authority is conditional the actor must so conduct himself as to avoid the harm.

2. What is not a defence to a nuisance? That the plaintiff came to the nuisance, since the first occupier of a locality cannot fix its character against later comers. That the defendant's activity benefits the public, though this may bear on whether an injunction or damages is granted. That others contribute to the same interference, since each contributor may be liable although his own share alone would not amount to a nuisance. That the defendant took reasonable care, since the question is the unreasonableness of the interference and not the care taken. And that the locality is a suitable one for the activity, which is a factor in assessing reasonableness rather than an answer, and which carries little weight where material damage to property has been caused.

3. What remedies has a person injured by a nuisance? Damages, measured by the cost of repair or the diminution in value where there is material damage, and assessed generally for inconvenience where the interference is with comfort. An injunction, which is the remedy that stops the nuisance: a perpetual injunction under section 38 of the Specific Relief Act 1963, which expressly covers the invasion of a right to property where there is no standard for ascertaining the actual damage or where money would not be adequate relief, and a mandatory injunction under section 39 to undo what has been done. The remedy is discretionary, and where the injury is small and can be adequately compensated in money a court may award damages instead. And abatement, the extra-judicial removal of the nuisance, which requires notice, permits no more than is necessary, and obliges the abator to choose the least mischievous method. For a public nuisance there are in addition the Magistrate's conditional order under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 and a suit under section 91 of the Code of Civil Procedure 1908.

The three elements, in outline

1. A duty of care owed to the plaintiff. Not a general duty to be careful, but a duty owed to this plaintiff in these circumstances. Chapter [The Duty of Care] works out how a court decides whether one exists.

2. A breach of that duty. Failure to come up to the standard of the reasonable person, judged objectively, with the standard raised for a professional. Chapter [Breach of Duty and the Standard of Care] works it out.

3. Damage caused by the breach, and not too remote. The plaintiff must suffer harm the law recognises, it must be caused by the breach, and it must not be too remote a consequence. Chapter [Damage, Causation and Remoteness] works it out.

All three must be proved by the plaintiff, and the burden is his throughout, subject to the evidential help res ipsa loquitur gives, which chapter [Res Ipsa Loquitur] explains.

Negligence and its neighbours

A worked example

A shopkeeper leaves a metal shutter half open across the pavement while unloading a truck. A passer-by walks into it in the evening and loses an eye.

Duty. Did the shopkeeper owe a duty to the passer-by? Yes: a person who creates a hazard on a pavement owes a duty to those who use it.

Breach. Did he fall below the standard of a reasonable shopkeeper? Leaving a sharp obstruction at head height, unmarked, in the evening, is very likely a breach.

Damage. The loss of an eye is damage the law recognises, it was caused by the breach, and it is not too remote.

Change one fact. Suppose the passer-by was running away from the police and looking behind him. That does not remove the duty or the breach; it raises contributory negligence, which reduces the damages, as chapter [Contributory and Composite Negligence] explains.

Change another. Suppose the shutter was properly marked and lit, and the passer-by walked into it because he was reading his telephone. There is then no breach at all, and the claim fails at the second element.

What it does NOT mean

It does not mean carelessness alone is actionable. Careless conduct that harms nobody, or that harms a person to whom no duty was owed, gives no action.

It does not mean an accident is negligence. Jacob Mathew says in terms that an error of judgment or an accident is not proof of negligence.

It does not mean the standard is what this defendant could manage. The standard is objective, and inexperience is no excuse.

It does not mean civil and criminal negligence are the same. The criminal degree is gross, and mens rea must be shown.

Quick revision

1. Negligence is the breach of a duty by omitting what a reasonable man would do, or doing what a prudent and reasonable man would not.
2. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180: the essential components are duty, breach and resulting damage.
3. The word is used both for the independent tort and for a mode of committing other torts.
4. The plaintiff proves all three elements; res ipsa loquitur helps evidentially.
5. Criminal negligence requires a gross degree and mens rea; civil negligence does not.
6. An error of judgment or an accident is not negligence.
7. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates the same definition for medical cases.

Test yourself

1. Define negligence and state its essentials. Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or by the doing of something which a prudent and reasonable man would not do. That is the definition the Supreme Court adopted in Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, and repeated in Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480. Its essential components are three: a duty of care owed by the defendant to the plaintiff, a breach of that duty judged by the standard of the reasonable person, and damage resulting from the breach which is not too remote. All three must be proved by the plaintiff.

2. Distinguish negligence as a tort from negligence as a mode of committing a tort. As an independent tort, negligence is a cause of action with three elements, duty, breach and damage, and a plaintiff who cannot prove all three fails. As a mode of committing another tort, the word describes the manner of the defendant's conduct rather than the cause of action: a trespass may be committed negligently, a nuisance may be created negligently, and a bailee may perform his duty negligently, but in each of those the plaintiff sues on the other tort and negligence is merely an adjective. The distinction matters because the elements and the defences differ: an action in nuisance is not answered by proof that reasonable care was taken, while an action in negligence is.

3. How does criminal negligence differ from civil negligence? In degree and in mental element. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, holds that what may be negligence in civil law is not necessarily negligence in criminal law: for negligence to amount to an offence the element of mens rea must be shown, and the degree of negligence must be much higher, that is, gross or of a very high degree. The Court held that the expression rash or negligent act in the penal provision must be read as qualified by the word grossly, and that to prosecute a medical professional it must be shown that he did or failed to do something which no medical professional in his ordinary senses and prudence would have done or failed to do. It also held that res ipsa loquitur, being a rule of evidence in civil law, has at most a limited application in a criminal trial.

The Supreme Court's own formulation, in Jay Laxmi Salt Works, is that duty is the primary yardstick of tortious liability and its ambit keeps widening on the touchstone of fairness and the practicality of the situation.

The Indian case that shows a duty being refused

Most notes on this topic cite only cases where a duty was found. The examinable point is that a duty may be refused, and the leading Indian authority is one where it was.

Facts. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, decided on 17 January 1997. A pedestrian walking to his office was killed when a roadside tree maintained by the Municipal Corporation suddenly fell on him. His widow and children sued in negligence. The trial court decreed the claim and the High Court affirmed, holding that the Corporation's statutory power to plant and maintain roadside trees carried a corresponding absolute duty to keep them in proper condition, so that the claimants need not prove why the tree fell.

Held. The appeal was allowed and both decrees were set aside. The existence of a duty of care must be established before liability for negligence can arise; a duty is not fastened on a public authority merely because it has a statutory power; the fall of the tree was not reasonably foreseeable by the Corporation; and the damage was too remote. Because the claimants were poor and the money had probably been spent, the Court directed that the Rs. 45,000 already paid should not be recovered from them.

Why it matters here. Three propositions come out of it, and each is examinable: a power is not a duty; foreseeability is judged on what this defendant could reasonably foresee, not on hindsight; and the duty question is decided before the standard-of-care question is reached.

And the Indian case where a duty was found

Facts. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750. The Clock Tower in Chandni Chowk, belonging to the Corporation, collapsed and killed three people. It was eighty years old, the mortar of its top storey had a life of forty to forty-five years, and the Corporation had never examined it for latent defects.

Held. The owner of a structure abutting a highway owes a duty to users of the highway to keep it in a safe condition. A properly maintained structure does not ordinarily collapse, so res ipsa loquitur applied and the burden lay on the Corporation to explain the fall. Its failure to test a building long past the life of its materials was negligence.

Why the two cases sit together. In Subhagwanti the danger was one the owner could and should have discovered by inspection; in Rajkot Municipal Corporation the Court held that the fall of a living tree was not foreseeable in the same way. Read together they show that the duty question turns on what this defendant, in this position, could reasonably be expected to know and to do.

Special situations

Omissions. The law is slower to impose a duty to act than a duty not to injure. A duty to act arises from a relationship, from control over the source of the danger, from an undertaking, or from the creation of the risk.

Public authorities. Rajkot Municipal Corporation is the Indian authority: a statutory power does not by itself create a common law duty of care.

Unborn children. A duty is owed to a child in the womb, actionable after birth, as chapter [Who May Sue] explains.

Rescuers. A person who negligently creates a danger owes a duty to those who come to the rescue, which is also why volenti non fit injuria does not run against a rescuer.

A worked example

A contractor digs a trench across a village road and leaves it open overnight.

To a villager who falls in, a duty is plainly owed: the harm is foreseeable, the relationship is proximate, and it is fair and reasonable to impose the duty on the person who made the hole.

To a person who is injured going in to pull the villager out, a duty is owed as a rescuer.

To the village panchayat, which loses money because a bus route is suspended, the answer is likely to be no: the loss is economic, the relationship is not proximate, and imposing a duty would open liability to everyone inconvenienced by the trench.

To the villager's employer, who loses his services, the answer is no for the same reasons, and chapter [Torts Affecting Personal Relations] explains why the old action for loss of services is gone.

What it does NOT mean

It does not mean foreseeability creates a duty. Proximity and the fairness of imposing the duty are separate questions.

It does not mean a public authority is liable whenever it has power to act. Rajkot Municipal Corporation holds the opposite.

It does not mean a duty is owed to the world. It is owed to persons in the class the defendant ought to have had in contemplation.

It does not merge with the standard of care. Whether a duty exists comes first; how much care it required comes next.

Quick revision

1. The neighbour principle from Donoghue v. Stevenson, (1932) AC 562: take reasonable care to avoid acts you can foresee would injure your neighbour, and a duty may exist without any contract.
2. Modern approach: foreseeability, proximity, and whether it is fair, just and reasonable to impose the duty.
3. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: duty is the primary yardstick and its ambit widens on the touchstone of fairness and practicality.
4. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552: a statutory power is not a duty; the fall of a tree was not foreseeable; the appeal was allowed.
5. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750: the owner of a structure abutting a highway owes a duty to keep it safe.
6. Duties are slower to arise for omissions, and arise from relationship, control, undertaking or creation of the risk.
7. A duty is owed to an unborn child and to a rescuer.

Test yourself

1. What is a duty of care and how does a court decide whether one exists? A duty of care is a legal obligation to take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one's neighbour, a neighbour being a person so closely and directly affected by the act that one ought reasonably to have him in contemplation; the principle comes from Donoghue v. Stevenson, (1932) AC 562. Foreseeability alone is not enough, because it would make liability boundless, so a court asks two further questions: whether there is sufficient proximity between the parties, in the sense of closeness, reliance or assumption of responsibility, and whether it is fair, just and reasonable to impose a duty of that scope on that defendant. The Supreme Court's formulation in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, is that duty is the primary yardstick of tortious liability and that its ambit keeps widening on the touchstone of fairness and the practicality of the situation.

2. "A statutory power is a statutory duty." Comment with reference to Indian authority. The proposition is wrong, and the Indian authority against it is Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552. A pedestrian was killed by the fall of a roadside tree maintained by the Corporation, and both the trial court and the High Court held the Corporation liable, reasoning that its power to plant and maintain roadside trees carried a corresponding absolute duty to keep them safe. The Supreme Court allowed the appeal and set aside both decrees, holding that the existence of a duty of care must be established before liability in negligence can arise, that a duty is not fastened on a public authority merely because it possesses a statutory power, that the fall of the tree was not reasonably foreseeable by the Corporation, and that the damage was too remote. It nevertheless directed, on humane grounds, that the Rs. 45,000 already paid should not be recovered from the poor claimants.

3. Reconcile Subhagwanti with Rajkot Municipal Corporation. The two decisions turn on what the defendant could reasonably be expected to know and to do. In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, an eighty-year-old clock tower whose mortar had a life of forty to forty-five years collapsed and killed three people, and the Corporation had never tested it for latent defects; the Court held that the owner of a structure abutting a highway owes a duty to keep it safe, applied res ipsa loquitur and found negligence, because inspection would have revealed the danger. In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, a living tree fell without warning and the Court held that no duty of the kind alleged arose and the fall was not reasonably foreseeable. The difference is discoverability: a decaying structure can be examined and a healthy tree cannot be watched leaf by leaf, so the first defendant could have prevented the harm by reasonable diligence and the second could not.

Held. Negligence is the breach of a duty by omitting what a reasonable man would do or doing what a prudent and reasonable man would not, and its components are duty, breach and resulting damage. Professional negligence calls for a treatment with a difference: a simple lack of care, an error of judgment or an accident is not negligence, and so long as a doctor follows a practice acceptable to the medical profession of the day he is not liable merely because a better alternative was available or a more skilled doctor would not have followed it; what must be seen is whether the precautions were taken which the ordinary experience of men has found sufficient. For criminal liability the degree must be gross.

Why it matters here. It is the Indian statement of the professional standard, and chapter [Medical Negligence] takes it further. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates it and adds that medical professionals are entitled to protection so long as they perform their duties with reasonable skill and competence in the interest of their patients.

The standard rises with what is charged for it

This is an Indian refinement worth knowing, and it comes from a case a student can remember.

Facts. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, decided on 3 January 1997. A German co-pilot staying at a five star hotel in New Delhi dived from the hotel's three metre spring board into its swimming pool, struck his head on the bottom because the pool was too shallow for that board, and was paralysed; he suffered for thirteen years and died before the suit was decided.

Held. A five star hotel charging a high price owes a correspondingly high degree of care as to the quality and safety of its structure and services. The pool did not meet even the minimum, let alone the preferred, standards of safety, and the spring board should have been removed when the standards were revised in 1970. A general notice that guests use the facilities at their own risk cannot soften the duty, since one who extends an invitation cannot then say the invitee accepted the risk. The suit was decreed for Rs. 50 lakhs with interest at six per cent from 27 September 1985.

Why it matters here. It ties the standard of care to the service professed and the price charged: the same act may be reasonable in a dharamshala and negligent in a luxury hotel.

Proving the breach

The burden is on the plaintiff. Where the accident is of a kind that does not ordinarily happen without negligence, and the thing that caused it was under the defendant's control, the maxim res ipsa loquitur helps him, and chapter [Res Ipsa Loquitur] works it out. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, and Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, are the two Indian illustrations.

A worked example

A school takes forty children on a picnic to a river.

Magnitude of the risk. Children near moving water; the likelihood of somebody entering the water is high.

Seriousness. Drowning is fatal; the gravity is at its maximum.

Utility. A picnic has social value, but it is not an ambulance run; the utility will not excuse much.

Cost of precautions. Two extra teachers, a rope line and a headcount every fifteen minutes cost little.

Conclusion. A reasonable school would take those precautions, and a school that took none has broken its duty. If the school had advertised itself as providing specialist adventure supervision and charged for it, Klaus Mittelbachert suggests that the standard expected of it would be higher still.

What it does NOT mean

It does not mean every accident is a breach. Jacob Mathew says an accident or an error of judgment is not proof of negligence.

It does not mean the defendant's best efforts suffice. The standard is objective; a beginner is judged as a competent person.

It does not mean following custom is always enough. Common practice is strong evidence, and a court may still hold the practice careless.

It does not mean cost is irrelevant. The burden of precautions is one of the four factors.

Quick revision

1. Breach is measured against the reasonable person, objectively.
2. Four factors: magnitude of the risk, seriousness of the injury threatened, utility of the conduct, and the cost and practicability of precautions.
3. Inexperience is no excuse; a learner is judged as a competent driver.
4. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180: a professional who follows a practice acceptable to his profession is not liable merely because a better course existed; criminal negligence must be gross.
5. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480: protection so long as duties are performed with reasonable skill and competence.
6. Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201: the standard rises with the service professed and the price charged; a disclaimer notice does not soften it; Rs. 50 lakhs decreed.
7. The burden of proving breach is on the plaintiff, assisted where it applies by res ipsa loquitur.

Test yourself

1. How does a court decide whether a duty of care has been broken? By comparing the defendant's conduct with that of a reasonable person in his position, objectively and without regard to his personal capacities, so that inexperience is no excuse. How much care that requires is fixed by four factors: the magnitude of the risk, that is, the likelihood of harm; the seriousness of the injury threatened, so that a grave risk demands more care even if it is improbable; the utility of the defendant's conduct, so that a socially valuable activity may justify a risk that a trivial one would not; and the cost and practicability of the precautions, since the law asks for precautions a reasonable person would take rather than the elimination of every risk. Compliance with common practice is strong evidence that no breach occurred but is not conclusive, because a practice may itself be careless.

2. What standard is applied to a professional, and what is the Indian authority? A person who professes a special skill is judged by the standard of an ordinarily competent member of that profession, not by that of the most eminent practitioner. In Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, the Supreme Court adopted that standard for India, holding that professional negligence calls for a treatment with a difference; that a simple lack of care, an error of judgment or an accident is not negligence; that so long as a doctor follows a practice acceptable to the medical profession of the day he is not liable merely because a better alternative existed or a more skilled doctor would have chosen differently; and that what must be seen is whether the precautions taken were those which the ordinary experience of men has found sufficient. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates the principles and adds that professionals are entitled to protection so long as they act with reasonable skill and competence in the patient's interest.

3. Does the standard of care vary with what the defendant charges? Indian authority says it does, for a service provider who holds himself out as offering a superior service. In Klaus Mittelbachert v. East India Hotels Ltd, AIR 1997 Del 201, a guest was paralysed diving from a spring board into a hotel pool that was too shallow for it, and the Delhi High Court held that a five star hotel charging a high or fancy price owes a correspondingly high degree of care as to the quality and safety of its structure and services, that it must update itself to the latest safety standards rather than rely on those current when it was built, and that a general notice that guests use the facilities at their own risk cannot soften that duty because one who extends an invitation cannot say the invitee accepted the risk. The suit was decreed for Rs. 50 lakhs with interest.

Held. The appeal was allowed. A duty of care must be established and is not created merely by the existence of a statutory power; the fall of the tree was not reasonably foreseeable by the Corporation; and the damage was too remote. The Court nevertheless directed that the Rs. 45,000 already paid should not be recovered from the claimants, who were poor.

Why it matters here. It shows the Indian courts applying foreseeability at both ends of the claim: to the existence of the duty and to the remoteness of the damage. Read it against Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, where the collapse of an eighty-year-old, never-inspected structure was both foreseeable and proximate.

Damage that the law recognises

Not every kind of loss is compensable in negligence.

Physical injury and damage to property are the paradigm.

Consequential economic loss, that is, loss flowing from physical injury or property damage, is recoverable.

Pure economic loss, that is, financial loss unconnected with any physical injury to the plaintiff or his property, is recoverable only in narrow circumstances, because a duty to avoid it is rarely held to be fair, just and reasonable, as chapter [The Duty of Care] explains.

Nervous shock, that is, a recognisable psychiatric injury, is recoverable subject to the control mechanisms in chapter [Nervous Shock].

A worked example

A tanker driver parks on a slope without applying the handbrake. The tanker rolls, hits a wall, and petrol leaks.

A pedestrian is crushed. But for the breach he would not have been hurt; the harm is of a foreseeable kind; the claim succeeds.

A worker with a weak heart dies of shock at the noise. The kind of harm, personal injury, was foreseeable, and the eggshell skull rule makes the defendant liable for the extent.

A passer-by lights a cigarette near the leak and there is an explosion. Whether the chain is broken depends on whether that act was truly independent. If the leak was obvious and the passer-by acted deliberately in the face of it, the chain may be broken; if he had no reason to know, it is not.

A factory a kilometre away loses a day's production because the road is closed. That is pure economic loss unconnected with any damage to the factory's property, and it is very unlikely to be recoverable.

A rescuer is burned pulling the driver out. The chain is not broken, a duty is owed to rescuers, and volenti non fit injuria does not run against him.

Distinctions that carry marks

What it does NOT mean

It does not require the extent of the harm to be foreseeable. Only its kind.

It does not excuse a defendant because the victim was unusually vulnerable. The eggshell skull rule.

It does not break the chain merely because somebody else also acted. The intervening act must be truly independent, and rescue and medical treatment ordinarily are not.

It does not make all financial loss recoverable. Pure economic loss is recoverable only exceptionally.

Quick revision

1. The third element of negligence is damage caused by the breach and not too remote.
2. Causation: the but-for test, with material contribution where causes are multiple.
3. Novus actus interveniens: an independent intervening act breaks the chain; rescue, medical treatment and reasonable acts in an emergency do not.
4. Remoteness: directness in Re Polemis, reasonable foresight in The Wagon Mound, and foresight is the test now applied.
5. The kind of harm must be foreseeable; its extent need not be.
6. The eggshell skull rule: take your victim as you find him.
7. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552: the fall of the tree was not foreseeable and the damage was too remote.
8. Pure economic loss is recoverable only in narrow circumstances.

Test yourself

1. Explain the tests of remoteness of damage. Two tests compete. The test of directness, associated with Re Polemis, makes a defendant liable for all the direct consequences of his negligent act whether or not they were foreseeable, which is simple to apply but can make liability disproportionate to fault. The test of reasonable foresight, associated with The Wagon Mound, limits liability to consequences of a kind that a reasonable person would have foreseen, and it is the test now generally applied. Two refinements soften it: the kind of harm and not its extent must be foreseeable, and under the eggshell skull rule a defendant takes his victim as he finds him, so that a foreseeable injury made far worse by the plaintiff's unusual susceptibility is compensated in full. Indian courts apply foreseeability, and in Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, the Supreme Court set aside decrees on the ground, among others, that the damage was too remote.

2. What is a novus actus interveniens? A new act intervening: an act, event or decision occurring after the defendant's breach which is so independent of it that the law treats it as breaking the chain of causation, so that the defendant is not liable for what follows. The intervening act must be genuinely independent, and voluntary human conduct that is deliberate and informed is the clearest example. What does not break the chain is action taken by a rescuer, since rescue is a foreseeable response to the danger the defendant created; medical treatment of the injury, unless it is grossly negligent; and conduct of the plaintiff which is a reasonable reaction to the emergency in which the defendant placed him. The question is always whether the later event was within the risk the defendant created or outside it.

3. Does the law of negligence compensate every financial loss? No. Physical injury and damage to property are the paradigm heads, and economic loss consequential on them, such as lost earnings or lost profits from a damaged machine, is recoverable. Pure economic loss, that is, financial loss suffered without any physical injury to the plaintiff or his property, is recoverable only in narrow circumstances, typically where there is a special relationship of reliance or an assumption of responsibility, because courts have generally held that it is not fair, just and reasonable to impose a duty of that width; otherwise a single accident on a road could give a claim to every business inconvenienced by the closure. Nervous shock is recoverable where it amounts to a recognisable psychiatric injury and the control mechanisms in chapter [Nervous Shock] are satisfied.

Held. The owner of a structure abutting a highway owes a duty to those using the highway to keep it in a safe condition; a properly maintained structure does not ordinarily collapse, so the principle of res ipsa loquitur applied and the burden lay on the Corporation to explain the fall; and the failure to test a building long past the life of its materials was negligence.

Why it matters here. It shows the maxim used against a public body, and it is the case to cite when the defendant argues that the defect was latent.

The limit: a rule of evidence, not of law

Facts. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, decided on 5 August 2005. Doctors were prosecuted for causing death by a rash or negligent act after a patient died when, on the complaint's version, an empty oxygen cylinder was connected.

Held. Among the Court's conclusions: res ipsa loquitur is only a rule of evidence, operating in the domain of civil law, particularly in torts, and helping to determine the onus of proof in negligence actions; it cannot be pressed into service to determine liability for negligence in the domain of criminal law, where it has at most a limited application.

Why it matters here. A student who says the maxim "proves" negligence is wrong. It shifts the burden of explanation; it does not decide the case, and it does not travel into the criminal courts.

What the maxim is NOT

It is not a presumption of law. The defendant can rebut it with a reasonable explanation consistent with the absence of negligence.

It does not reverse the legal burden in every jurisdiction and every case. The safer statement, and the one the Indian cases use, is that the accident is evidence of negligence which calls for an explanation.

It does not apply where the cause of the accident is known. If the facts are fully known, the court decides on the facts, and there is nothing for the maxim to do.

It does not apply where the thing was not in the defendant's control.

A worked example

Four accidents, and whether the maxim applies.

A bag of cement falls from a building under construction and hits a passer-by. The maxim applies: bags do not ordinarily fall from buildings where proper care is taken, and the site was in the builder's control.

A surgical instrument is left inside a patient after an operation. The maxim applies: that does not ordinarily happen if care is taken, and the operating theatre is entirely within the hospital's control.

A bus swerves off a straight road on a clear day and overturns. The maxim applies, on Pushpabai.

A passenger slips on a wet floor at a station in the middle of a monsoon downpour. The maxim probably does not apply: floors get wet in a downpour without anybody being negligent, so the accident is not of a kind that speaks for itself, and the plaintiff must prove what the station master failed to do.

Quick revision

1. Res ipsa loquitur: the thing speaks for itself.
2. Three conditions: the thing was in the defendant's control, the accident does not ordinarily happen with proper care, and there is no explanation.
3. Effect: the plaintiff proves the accident and the defendant must explain.
4. Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735: a car leaving the road and striking a tree; the plea of inevitable accident failed for want of evidence.
5. Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750: a collapsing clock tower; the burden lay on the Corporation to explain.
6. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180: it is a rule of evidence in civil law, with at most a limited application in criminal cases.
7. It does not apply where the cause is known or the thing was not in the defendant's control.

Test yourself

1. Explain res ipsa loquitur and its conditions. The maxim means that the thing speaks for itself. Where the thing which caused the damage was under the management or control of the defendant, and the accident is of a kind that does not ordinarily happen if those in control use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the defendant, that it arose from want of care. Its three conditions are therefore control, an accident of a kind that speaks of negligence, and the absence of an explanation. Its effect is procedural: the plaintiff proves the accident and stops, and the defendant must then explain how it happened without negligence on his part, as the Supreme Court put it in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735.

2. Is res ipsa loquitur a rule of law or a rule of evidence, and why does the difference matter? It is a rule of evidence. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, states it in terms: the maxim is only a rule of evidence, operating in the domain of civil law and especially in torts, and helping to determine the onus of proof in negligence actions; it cannot be pressed into service to determine liability in criminal law, where it has at most a limited application. The difference matters in three ways. It does not prove negligence, it calls for an explanation, and a reasonable explanation consistent with due care defeats it. It has no place where the cause of the accident is fully known, because the court then decides on the facts. And it cannot be used to convict, where the prosecution must prove gross negligence beyond reasonable doubt.

3. Give two Indian illustrations of the maxim. In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, an eighty-year-old clock tower belonging to the Corporation collapsed in Chandni Chowk and killed three people; the mortar of its top storey had a life of forty to forty-five years and the Corporation had never tested it for latent defects. The Court held that a structure abutting a highway does not ordinarily collapse if properly maintained, applied the maxim, and placed on the Corporation the burden of explaining the fall, which it could not discharge. In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, a company car driven by its manager left the road and struck a tree so violently that the occupants were killed; the Court held the maxim applied, that it was enough for the claimants to prove the accident, and that the company, having pleaded inevitable accident without leading any evidence, was liable.

Why it matters here. It is the rule that makes a claim practical: an injured person need not disentangle whose fault was greater, and the insurer of one vehicle cannot delay payment by pointing at the other.

The table that keeps them apart

A single accident can involve both: two negligent drivers and a pedestrian who stepped out without looking. The court then reduces the total for the pedestrian's share, and the reduced sum is recoverable in full from either driver.

A worked example

A truck and a motorcycle collide at a junction. The motorcyclist, who was not wearing a helmet, suffers a head injury. A pedestrian standing at the corner is also hit.

The pedestrian. He was careless in no way. His injury was caused by the composite negligence of the truck driver and the motorcyclist, so on Khenyei he may recover the whole of his compensation from either of them, and the two must sort out contribution between themselves.

The motorcyclist. He was himself negligent in two respects, if the evidence shows it: the manner of his riding, and the absence of a helmet, which contributed to the extent of his head injury even if not to the collision. His damages will be reduced by the percentage the court fixes as his share.

The last opportunity rule. If the truck driver saw the motorcycle in time to stop and did not, the older approach would have made him liable for the whole; the modern approach reaches a similar result by giving him a much larger share on apportionment.

And the agony of the moment. If the motorcyclist swerved into a wall to avoid the truck and was hurt by the wall, the doctrine of alternative danger protects him: a reasonable choice made in the emergency created by the truck is not contributory negligence.

What it does NOT mean

Contributory negligence is not a complete defence today. It reduces the damages.

Composite negligence does not require the plaintiff to sue everybody. Khenyei holds that he may recover the whole from any one.

Composite negligence does not let a defendant pay only his share to the plaintiff. Apportionment operates between the wrongdoers.

A child is not judged as an adult. The standard is that of a child of that age, and a very young child cannot be contributorily negligent.

Quick revision

1. Contributory negligence: the plaintiff's own want of care for his safety, contributing to his damage.
2. Modern effect: apportionment, not a complete defence.
3. The last opportunity rule was the old mitigation of the harsh rule.
4. Doctrine of alternative danger: a reasonable choice in the agony of the moment is not contributory negligence.
5. Children are judged by the standard of their age.
6. Composite negligence: two or more defendants, one indivisible injury.
7. Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273: liability is joint and several; the claimant may recover the whole from any one; apportionment is between the tortfeasors.
8. Section 168 of the Motor Vehicles Act 1988 requires the Tribunal to award just compensation, and apportionment for the claimant's own negligence is made in fixing it.

Test yourself

1. What is contributory negligence, and what is its effect? Contributory negligence is a failure by the plaintiff to take the care that a reasonable person would take for his own safety, which contributes to the damage he suffers. He owes no duty to the defendant; the question is only whether he looked after himself. At common law it was a complete defence, which was harsh and was mitigated by the last opportunity rule, under which the party who had the last chance to avoid the accident bore the whole loss. The modern approach, applied by Indian courts and reflected in the assessment of just compensation under section 168 of the Motor Vehicles Act 1988, is apportionment: the court fixes the plaintiff's share of responsibility as a percentage and reduces his damages accordingly. A plaintiff who acts reasonably in an emergency created by the defendant is protected by the doctrine of alternative danger, and a child is judged by the standard of a child of that age.

2. Distinguish contributory negligence from composite negligence. Contributory negligence concerns the plaintiff's own carelessness, and its consequence is a reduction of his damages in proportion to his share of the fault. Composite negligence concerns the carelessness of two or more defendants whose combined conduct causes a single indivisible injury, and its consequence is that each of them is liable to the plaintiff for the whole. In Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273, the Supreme Court held that in composite negligence the liability of the wrongdoers to the claimant is joint and several, so that the claimant may recover the entire amount from any one of them and need not sue all or wait for the liability to be apportioned; apportionment is a matter for the tortfeasors among themselves and does not affect his right to full compensation. Both may occur in the same accident, in which case the total is first reduced for the plaintiff's share and the balance is recoverable in full from any of the defendants.

3. Explain the last opportunity rule and the doctrine of alternative danger. The last opportunity rule was a device to soften the old rule that contributory negligence was a complete defence: where both parties were negligent, the one who had the last opportunity of avoiding the accident was held liable for the whole of it, so that a plaintiff whose earlier carelessness was followed by the defendant's failure to avoid the consequences still recovered. It has largely been overtaken by apportionment, which achieves the same fairness more directly by dividing the responsibility. The doctrine of alternative danger, sometimes called the agony of the moment, provides that a plaintiff who is placed in a position of danger by the defendant's negligence and who takes a course that turns out badly is not to be held contributorily negligent if he acted reasonably in the emergency, because the law does not require perfect judgment from a person whom the defendant has put in peril.

Why it matters here. It is the standard, the criminal threshold and the procedural protection, all in one judgment.

And its restatement. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, sets out a list of principles for deciding medical negligence cases, ending with the proposition that medical professionals are entitled to protection so long as they perform their duties with reasonable skill and competence and in the interest of their patients, whose welfare must be paramount.

Negligence per se: practising a system you are not qualified in

Facts. Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111, decided on 10 May 1996. A registered homeopath treated a patient for a viral fever with allopathic drugs. The patient's condition worsened, he was moved to another clinic and then to a hospital, and he died.

Held. A person registered in one system of medicine who practises another for which he holds no qualification is guilty of negligence per se, and the appeal against the homeopath was allowed on that footing. The Court declined to proceed against the second doctor, because by the time the patient reached him his condition had already been damaged to an unascertainable extent.

Why it matters here. It is the one situation in which the Bolam standard does not have to be worked through: a practitioner outside his own system is negligent without more.

Where the thing speaks for itself

Facts. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, decided on 20 February 1996. A woman underwent a sterilisation operation in a government hospital. A mop, that is, a surgical towel, was left inside her abdomen; complications followed, a second operation was performed to remove it, and she died.

Held. Leaving a mop inside the abdomen was negligence; the doctors and staff had acted negligently and caused the death; and once death by negligence in a hospital is established, the State is liable to pay damages. The plea that running a hospital was a sovereign function was not accepted.

Why it matters here. It shows res ipsa loquitur working in a hospital, and it is the Indian authority for the State's liability for its hospitals, which chapter [Vicarious Liability of the State] takes further.

The three forums, and what each requires

Facts. V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, decided on 8 March 2010. A patient was treated for typhoid when she was in fact suffering from malaria, and died. The consumer forums dismissed the complaint on the ground that no expert evidence had been produced.

Held. There is no general rule that expert evidence is required in every case of medical negligence. There may be simple cases in which it is not required, and those are to be decided by the consumer forums under the procedure the Act prescribes; in complicated cases where expert evidence is required, the parties have a right to go to the civil court. The Court also cautioned against deferring too readily to expert evidence.

Why it matters here. It keeps the consumer remedy usable, which matters because section 2 of the Consumer Protection Act 2019 makes medical treatment for consideration a service, and chapter [Medical Services under the Act] works that out.

A worked example

A surgeon operates on Kavita's knee. The operation is a recognised procedure, competently performed, and the knee does not improve.

Is that negligence? No. Jacob Mathew says an error of judgment or a failure of treatment is not negligence, and following a practice acceptable to the profession is enough even if a better course existed.

Change one fact: a swab is left inside the knee. That is Achutrao and it speaks for itself.

Change another: the operation was performed by a dentist. That is Poonam Verma, negligence per se.

Change another: the surgeon did not tell Kavita of a known risk of stiffness. That is a failure of the duty to advise, and is judged by the same standard of a reasonably competent practitioner.

Where should Kavita go? If the facts are simple, a Consumer Commission, which is quick and cheap, and V. Kishan Rao holds that expert evidence is not required in every case. If they are complicated, a civil court. A prosecution requires gross negligence and, under the Jacob Mathew guidelines, an independent medical opinion first.

What it does NOT mean

A bad outcome is not negligence. The law judges the process, not the result.

A second opinion that differs is not proof of negligence. A doctor is not liable merely because a more skilled practitioner would have acted differently.

A patient does not have to bring expert evidence in every consumer case. V. Kishan Rao says so.

A doctor is not immune from prosecution. He is protected by a higher threshold and a procedural safeguard, not by an exemption.

Quick revision

1. Duty: care in deciding to take the case, in deciding what treatment to give, and in administering it.
2. Standard: the ordinary competent practitioner of that branch, the Bolam test as adopted in Jacob Mathew v. State of Punjab, AIR 2005 SC 3180.
3. An error of judgment or an accident is not negligence; a practice acceptable to the profession is a defence.
4. Criminal liability needs gross negligence, mens rea, and, under the guidelines, an independent medical opinion before prosecution.
5. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480: protection so long as duties are performed with reasonable skill and competence in the patient's interest.
6. Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111: practising a system one is not qualified in is negligence per se.
7. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634: a mop left in the abdomen; the State is liable for negligence in its hospital.
8. V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513: expert evidence is not required in every case.
9. Three forums: civil court, Consumer Commission under the Consumer Protection Act 2019, and criminal court.

Test yourself

1. What standard of care is expected of a doctor in India? That of an ordinarily competent practitioner of the branch of medicine he professes, exercising a reasonable degree of skill, knowledge and care. In Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, the Supreme Court held that professional negligence calls for a treatment with a difference: a simple lack of care, an error of judgment or an accident is not proof of negligence, and so long as a doctor follows a practice acceptable to the medical profession of the day he is not liable merely because a better alternative existed or because a more skilled doctor would have acted otherwise. What must be seen is whether the precautions taken were those which the ordinary experience of men has found sufficient. Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480, restates the principles and holds that medical professionals are entitled to protection so long as they act with reasonable skill and competence in the interest of their patients.

2. When is a doctor criminally liable for negligence? Only where the negligence is gross or of a very high degree and mens rea is shown. Jacob Mathew v. State of Punjab, AIR 2005 SC 3180, holds that the jurisprudential concept of negligence differs in civil and criminal law, that the expression rash or negligent act in the penal provision must be read as qualified by the word grossly, and that to prosecute a medical professional it must be shown that he did or omitted something which no medical professional in his ordinary senses and prudence would have done or omitted, the hazard taken being such that injury was most likely imminent. The Court also laid down guidelines: a private complaint should not be entertained unless supported by a credible opinion from another competent doctor, and an investigating officer should obtain an independent and competent medical opinion before proceeding. It further held that res ipsa loquitur, being a rule of evidence in civil law, has at most a limited application in a criminal trial.

3. Where may a patient complain, and what does each forum require? Three forums are open. A civil court, where the patient sues in negligence and must prove duty, breach and damage on the balance of probabilities; complicated cases requiring expert evidence belong here. A Consumer Commission, since section 2 of the Consumer Protection Act 2019 makes treatment for consideration a service and a defect in it a deficiency; the procedure is summary, quick and cheap, and V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, holds that expert evidence is not required in every case, simple cases being decided by the forums on the Act's own procedure while complicated ones may go to the civil court. And a criminal court, where the threshold is gross negligence with mens rea and the Jacob Mathew safeguards apply.

4. "A doctor who practises a system of medicine he is not qualified in is negligent without more." Is that so? Yes. In Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111, a registered homeopath treated a patient for a viral fever with allopathic drugs and the patient died. The Supreme Court held that a person registered in one system who practises another for which he holds no qualification is guilty of negligence per se, and allowed the appeal against him on that footing alone, invoking the maxim sic utere tuo ut alienum non laedas. The reason is that the standard of care is measured by the skill the practitioner professes, and a practitioner who has no qualification in the system he is using cannot meet the standard of an ordinarily competent practitioner of it. The Court declined to hold the second doctor liable, since by the time the patient reached him the damage was already unascertainable.

Where the claim actually appears in India

Indian courts do not often use the label. The same interest is protected in three other ways, and a good answer names them.

As part of the damages in a personal injury or fatal accident claim. Section 168 of the Motor Vehicles Act 1988 requires the Claims Tribunal to award compensation which appears to it to be just, and mental suffering, loss of amenities and loss of consortium are heads within it, as chapter [Computing Just Compensation] shows.

As compensation for mental agony under the consumer law. Section 39 of the Consumer Protection Act 2019 empowers a Commission to direct payment of compensation, and Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, holds that a Commission may award compensation for harassment, mental agony and oppression caused by a public functionary, on a finding recorded carefully on convincing material, and that the amount is to be recovered from the officers responsible where it is paid out of public funds.

As compensation in a writ petition for the violation of a fundamental right, which chapter [Constitutional Tort] deals with.

A worked example

A school bus overturns. Consider five claimants.

A child in the bus who is uninjured but develops a diagnosed anxiety disorder. He is a primary victim: he was within the range of foreseeable physical injury, and the illness is recoverable.

A mother who sees the crash from the pavement and develops a psychiatric illness. She is a secondary victim, and she satisfies all three control mechanisms: a close tie, presence at the event, and perception by her own senses.

A father who is told by telephone and develops the same illness. He fails the second and third mechanisms and would not recover as a secondary victim.

A passer-by with no connection to any child who is badly shaken. He fails the close-tie requirement, and mere distress is not a psychiatric illness in any event.

A rescuer who pulls children out and is left with a diagnosed condition. He is treated as a primary victim, and chapter [Volenti Non Fit Injuria] explains why consent is no answer to him either.

What it does NOT mean

Grief is not compensable. The plaintiff must prove a recognisable psychiatric illness.

It does not require physical impact. That was the earliest rule and it has gone.

It is not available to everyone who was upset. The control mechanisms exist precisely to limit the class.

It is not a separate tort. It is a kind of damage in the tort of negligence, so duty, breach and causation must all be proved.

Quick revision

1. Nervous shock is a claim for a recognisable psychiatric illness caused without physical impact.
2. Grief, fright and distress are not enough.
3. Development: no recovery without impact, then fear for one's own safety, then fear for a close relative witnessed, then the modern control mechanisms.
4. Primary victim: within the range of foreseeable physical injury, or a rescuer; foreseeability of injury of some kind suffices.
5. Secondary victim: close tie of love and affection, proximity in time and space to the event or its immediate aftermath, and perception by his own senses.
6. In India the interest is protected mainly through the heads of compensation: section 168 of the Motor Vehicles Act 1988, section 39 of the Consumer Protection Act 2019, and compensation in a writ petition.
7. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787: compensation for harassment and mental agony against a public authority, recoverable from the erring officers.

Test yourself

1. What is nervous shock and what must a plaintiff prove? Nervous shock is the traditional name for a claim in negligence for psychiatric injury caused otherwise than by physical impact, that is, by what the plaintiff saw, heard or feared. He must prove a recognisable psychiatric illness, medically identified, and not merely grief, fright, anxiety or distress, however genuine. If he is a primary victim, that is, someone who was himself within the range of foreseeable physical injury or who acted as a rescuer, it is enough that injury of some kind was foreseeable. If he is a secondary victim, suffering through what happened to another, he must in addition satisfy three control mechanisms: a close tie of love and affection with the person endangered, closeness in time and space to the accident or its immediate aftermath, and perception of the event by his own unaided senses rather than through being told of it.

2. Why did the law resist claims for nervous shock, and how were the objections met? Three objections were raised: that such injuries are difficult to prove and easy to feign; that a single accident may be witnessed by hundreds, so that liability would be indeterminate; and that grief at a death is a universal incident of life which the law cannot compensate. The law met all three with a single requirement, that the plaintiff prove a recognisable psychiatric illness rather than emotion, which answers the proof objection by demanding medical evidence and the floodgates objection by excluding those who are merely upset. The control mechanisms for secondary victims then limit the class further, by requiring a close relationship, presence at the event or its immediate aftermath, and direct perception.

3. How is this interest protected in Indian practice? Less by a distinct tort than by the heads of compensation in the statutory claims. Section 168 of the Motor Vehicles Act 1988 requires a Claims Tribunal to award compensation which appears to it to be just, and mental suffering, loss of amenities and loss of consortium are recognised heads within it. Section 39 of the Consumer Protection Act 2019 empowers a Commission to order compensation, and in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, the Supreme Court held that a Commission may award compensation for harassment, mental agony and oppression caused by a public functionary, on a finding recorded carefully and not lightly, and that where the money comes from public funds the department must recover it from the officers responsible. Compensation in a writ petition for the violation of a fundamental right is the third route.

Section 18 defines misrepresentation, which covers an innocent but false assertion, and section 19 makes an agreement caused by fraud or misrepresentation voidable at the option of the party deceived, who may also insist that the contract be performed and that he be put in the position in which he would have been if the representation made had been true.

So the same lie may give a contractual remedy of rescission under section 19 and a tortious remedy of damages in deceit, and a student should say both.

Fraud in the consumer law

Section 2 of the Consumer Protection Act 2019 defines an unfair trade practice to include the making of a false statement about the standard, quality, quantity, grade or composition of goods, false representations about services, and other deceptive practices, so a consumer misled by a seller has a third route, which chapter [Unfair and Restrictive Trade Practices] works out.

A worked example

A seller tells Nitin that a second-hand car has run 40,000 kilometres. Consider four versions.

One. He knows the true figure is 140,000. That is deceit: a false representation of fact made knowingly, intended to be acted on, acted on, and causing loss. It is also fraud under section 17 of the Indian Contract Act 1872, so the contract is voidable under section 19, and it is an unfair trade practice under section 2 of the Consumer Protection Act 2019.

Two. He read 40,000 on the odometer and believed it, though a careful seller would have checked the service book. That is not deceit, because he had an honest belief; the claim, if any, lies in negligent misstatement, and the consumer remedy may still be available for a defective good.

Three. He says nothing at all about the mileage. Silence is not ordinarily a representation, so there is no deceit, unless he made a half-true statement or the position was one requiring disclosure.

Four. He says "this car is a bargain". That is opinion, or sales talk, and no action lies on it.

Distinctions that carry marks

What it does NOT mean

Carelessness is not deceit. The tort requires knowledge or recklessness.

Silence is not ordinarily a representation. Three exceptions apply.

Sales talk is not a representation of fact. Puffing is not actionable.

Deceit is not actionable without damage. The plaintiff must have acted on the statement and lost by it.

Quick revision

1. Deceit: a false representation of fact, made knowingly or recklessly, intended to be acted on, acted on, and causing damage.
2. Honest belief, however unreasonable, is a complete defence.
3. Silence is not a representation except in three cases: a misleading half-truth, a statement that becomes false before it is acted on, and a relationship requiring disclosure.
4. Section 17 of the Indian Contract Act 1872 defines fraud for contracts and includes a promise made with no intention of performing it.
5. Section 18 covers innocent misrepresentation; section 19 makes the agreement voidable and allows the deceived party to insist on being put in the position the representation would have produced.
6. Section 2 of the Consumer Protection Act 2019 makes a false statement about goods or services an unfair trade practice.
7. One lie may give three remedies: damages in deceit, rescission in contract, and relief before a Consumer Commission.

Test yourself

1. State the essentials of the tort of deceit. Five. A representation of fact, by words or conduct, as distinct from a statement of opinion, intention or law. Its falsity, silence not ordinarily amounting to a representation except where a half-truth misleads, where a statement true when made becomes false and is not corrected, or where the relationship requires disclosure. Knowledge of the falsity, or absence of belief in the truth of the statement, or recklessness as to whether it is true or false. An intention that the plaintiff, or a class including him, should act on it. And action on it by the plaintiff resulting in damage, since deceit is not actionable per se. An honest belief in the truth of the statement, however unreasonable, is a complete defence.

2. Distinguish the tort of deceit from fraud under the Indian Contract Act 1872. The tort gives damages to anybody who was intended to act on the false statement and who acted on it to his loss, whether or not any contract resulted. Section 17 of the Indian Contract Act 1872 defines fraud for the purposes of a contract, and includes the suggestion as a fact of what is not true by one who does not believe it, the active concealment of a fact by one who knows it, a promise made with no intention of performing it, any other act fitted to deceive, and anything the law declares fraudulent, adding that mere silence is not fraud unless there is a duty to speak or silence is equivalent to speech. Its consequence is that the agreement is voidable at the option of the party deceived under section 19, who may rescind or may insist on being placed in the position in which he would have been if the representation had been true. The same lie may therefore support both a claim in tort and rescission in contract, and in India a third remedy before a Consumer Commission.

3. Is a careless false statement deceit? No. The mental element of deceit is knowledge that the statement is false, or absence of belief in its truth, or recklessness in the sense of not caring whether it is true or false. A defendant who honestly believed what he said is not liable in deceit however unreasonable that belief was, and however easily he could have checked. If his carelessness caused loss to a person who relied on him in circumstances where a duty of care existed, the claim lies in negligent misstatement, where honest belief is no defence but a duty of care must be established. The distinction matters because the defences, and the classes of person who may sue, are different.

The three rules that follow from joint liability

1. The plaintiff may sue any one, some or all. He is not obliged to join everybody, and a decree against one does not by itself bar an action against another.

2. One satisfaction only. He may have judgment against several but may enforce it only until he is paid once. Accepting satisfaction from one discharges the others, because the law compensates a loss and does not multiply it.

3. Contribution is now allowed. The old English rule was that a wrongdoer who paid could not recover any part of it from his fellows. That rule has been abandoned, and a tortfeasor who has paid more than his share may recover contribution from the others, except where his own wrong was deliberate and he knew it to be wrong.

Release, and the trap in it

A release of one joint tortfeasor at common law released all of them, because the cause of action was one. A covenant not to sue one, reserving rights against the others, did not. The distinction is technical and is a favourite examination point: the substance is whether the plaintiff has given up the cause of action or merely promised not to enforce it against one person.

A worked example

A newspaper publishes a defamatory article written by a freelance journalist, on facts supplied by an informant who knew they were false.

The journalist and the newspaper are joint tortfeasors: the publication is one tort, and the newspaper is in any event answerable for the acts of those it publishes.

The informant, if he acted in concert with the journalist to publish, is a joint tortfeasor by common design; if he merely supplied the material without any such design, he may be an independent wrongdoer.

The plaintiff's choice. He may sue the newspaper alone, which is the defendant with money, and recover the whole. The newspaper may then claim contribution from the journalist and the informant.

Satisfaction. If the newspaper pays in full, the plaintiff cannot go on to recover the same damages again from the journalist.

And if the plaintiff releases the journalist in a settlement, he must take a covenant not to sue rather than a release, or he risks discharging the newspaper as well.

What it does NOT mean

It does not mean the plaintiff recovers twice. He is entitled to one satisfaction.

It does not mean each defendant pays only his share to the plaintiff. Apportionment operates between the wrongdoers, as Khenyei holds.

It does not mean contribution is always available. A deliberate wrongdoer who knew his act was wrong may be refused it.

It does not require all wrongdoers to be sued together. The plaintiff chooses.

Quick revision

1. Joint tortfeasors: common design, agency or vicarious liability, or breach of a joint duty.
2. Liability is joint and several: sue any one, some or all.
3. One satisfaction only; accepting satisfaction from one discharges the rest.
4. Contribution between tortfeasors is now allowed; the old rule denying it has been abandoned.
5. A release of one discharges all; a covenant not to sue does not.
6. Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273: in composite negligence liability is joint and several, the claimant may recover the whole from any one, and apportionment is between the tortfeasors.
7. Section 168 of the Motor Vehicles Act 1988 requires the Tribunal to award just compensation and to specify who pays it.

Test yourself

1. Who are joint tortfeasors, and what is the nature of their liability? Persons are joint tortfeasors in three situations: where one is vicariously liable for the tort of the other, as master and servant, principal and agent, or partners; where they act in furtherance of a common design, so that the act of one is the act of all; and where they are in breach of a duty owed jointly. Their liability to the plaintiff is joint and several. He may sue any one, some or all of them, may obtain judgment against several, and may recover the whole of his damages from any one, subject to the rule that he is entitled to only one satisfaction, so that payment in full by one discharges the others. As between themselves, contribution is now allowed, the old rule denying it having been abandoned, though a deliberate wrongdoer who knew his act to be wrong may be refused it.

2. Distinguish joint tortfeasors from independent tortfeasors and explain composite negligence. Joint tortfeasors commit one tort together, whether by common design, through vicarious liability, or by breach of a joint duty. Independent tortfeasors commit separate torts which happen to produce damage to the same plaintiff; where that damage is divisible each answers for his own part, and where it is one indivisible injury the Indian expression is composite negligence. In Khenyei v. New India Assurance Co. Ltd, (2015) 9 SCC 273, a claimant was injured by the composite negligence of the drivers of a trailer-truck and a bus, and the Supreme Court held that the liability of each to the claimant is joint and several, that he may recover the whole from any one of them without suing all or waiting for apportionment, and that apportionment is a matter of contribution between the wrongdoers which does not affect his right to full compensation.

3. What is the difference between a release and a covenant not to sue? A release is a surrender of the cause of action itself, and because the cause of action against joint tortfeasors is one, a release granted to one of them discharges all. A covenant not to sue is merely a promise not to enforce the claim against a particular person, leaving the cause of action alive against the others, so the plaintiff may still proceed against them. The distinction is technical but it decides cases, and a plaintiff settling with one of several wrongdoers must take a covenant not to sue, with an express reservation of his rights against the rest, if he intends to preserve his claim.

Held. The appeal was allowed and the High Court's judgment set aside. Damages for malicious prosecution cannot be awarded where the tort was neither pleaded nor put in issue nor proved, and findings resting on surmises and conjectures cannot support such a decree. In the course of the judgment the Court set out the vocabulary of this group of wrongs: malicious prosecution requires proceedings instituted maliciously and without reasonable and probable cause; a malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted by the order of the court; and there is a distinction between a malicious use and a malicious abuse of legal process, an abuse being where the party employs it for an unlawful object.

Why it matters here. It is the Indian authority on the ingredients and on the need to plead and prove them, and it is the bridge to chapter [Malicious Abuse of Legal Process].

A worked example

Rakesh tells the police that his neighbour Suman stole his motorcycle. He knows the motorcycle is with his own brother. Suman is arrested, spends four days in custody, is tried and is acquitted.

Prosecution. Rakesh did not merely give information; he set the law in motion on facts he knew to be false, so he is a prosecutor.

Termination in Suman's favour. The acquittal.

Absence of reasonable and probable cause. Rakesh knew where the motorcycle was, so he had no honest belief on reasonable grounds.

Malice. An improper motive is established by the same facts, and may in any event be inferred from the absence of cause.

Damage. Four days in custody, the cost of the defence, and the injury to reputation.

Limitation. Article 74 of the Schedule to the Limitation Act 1963 gives one year from the acquittal.

Change one fact. Suppose Rakesh honestly believed Suman had taken it, on the word of a witness he had no reason to disbelieve. Then reasonable and probable cause existed, the claim fails at the third ingredient, and the acquittal makes no difference.

Distinctions that carry marks

What it does NOT mean

An acquittal is not proof of the tort. It satisfies one ingredient of five.

Giving information honestly is not prosecuting. The informant who leaves the decision to the police is not a prosecutor.

Malice does not prove the absence of reasonable cause. The inference runs the other way only.

A claim cannot be brought while the prosecution is pending. Favourable termination is an ingredient.

Quick revision

1. Five ingredients: prosecution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, malice, and damage.
2. The burden of all five, including the negative, is on the plaintiff.
3. Reasonable and probable cause: an honest belief on reasonable grounds that the plaintiff was probably guilty.
4. Malice is any improper motive, and may be inferred from the absence of reasonable cause, but not the converse.
5. Damage may be to reputation, person or property, including the cost of the defence.
6. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568: the tort must be pleaded, put in issue and proved; a decree on surmises was set aside.
7. Limitation: article 74 of the Schedule to the Limitation Act 1963, one year from the acquittal or other termination.

Test yourself

1. State and explain the ingredients of malicious prosecution. Five must be proved by the plaintiff. That the defendant prosecuted him, that is, set the criminal law in motion against him, which an honest informant who leaves the decision to the police does not do. That the prosecution terminated in his favour, by acquittal, discharge, withdrawal or quashing, since no action lies while it is pending. That the defendant acted without reasonable and probable cause, meaning without an honest belief founded on reasonable grounds in circumstances that would lead an ordinarily prudent person to think the plaintiff probably guilty; this is proof of a negative and is the hardest ingredient. That the defendant acted maliciously, malice meaning any improper motive other than the desire to bring an offender to justice. And that the plaintiff suffered damage to his reputation, his person or his property. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, shows the consequence of not pleading and proving them: the decree was set aside.

2. Why is the burden on the plaintiff to prove the absence of reasonable and probable cause? Because the law wants offences reported, and a rule that put the burden on the defendant to justify every complaint would deter honest informants. The tort exists to punish the abuse of the criminal process, not the failure of a prosecution, and an acquittal proves only that the charge was not made out beyond reasonable doubt. Requiring the plaintiff to prove the absence of cause keeps the balance between protecting the citizen from malicious accusation and protecting the citizen who reports a crime in good faith. It also explains the related rule that malice may be inferred from the absence of reasonable and probable cause, but that the absence of cause may never be inferred from malice, since a person may act from a bad motive on facts that would justify any prudent person.

3. Distinguish malicious prosecution from false imprisonment. In false imprisonment the defendant himself restrains the plaintiff, or directs the restraint; in malicious prosecution he sets the law in motion and the restraint, if any, follows from the act of the court or the police. False imprisonment requires no malice and no want of reasonable cause, and it is actionable without proof of damage; malicious prosecution requires both malice and the absence of reasonable and probable cause, and damage must be proved. The periods of limitation differ too: article 73 of the Schedule to the Limitation Act 1963 gives one year from the end of the imprisonment, while article 74 gives one year from the acquittal or other termination of the prosecution.

Malicious abuse of process. Here the process was regularly issued and the complaint is about the use made of it. The classic example is obtaining a summons or a warrant, valid in itself, in order to extort money, to force a person to give up property, or to compel him to do something the process was never meant to compel.

The elements of abuse of process

1. Legal process was used. A summons, a warrant, an attachment, an injunction, an arrest.

2. It was used for a purpose other than that for which it is designed. This is the heart of the wrong.

3. Malice, that is, an improper motive.

4. Damage.

Note what is NOT required: that the process was wrongly obtained, and that the proceedings ended in the plaintiff's favour. Both are required in malicious prosecution and neither in abuse of process, because the process here may have been perfectly regular.

The statutory remedy that often replaces the tort

Section 95 of the Code of Civil Procedure 1908 provides for compensation where an arrest, attachment or temporary injunction was obtained on insufficient grounds, or where a suit fails and there was no reasonable or probable ground for instituting it, and it allows the court to award compensation up to the limit the section sets, on the application of the defendant, in the same suit. That is faster and cheaper than a separate action, and a student should mention it.

Limitation for the related torts is short: article 79 of the Schedule to the Limitation Act 1963 gives one year for compensation for an illegal, irregular or excessive distress; article 80 gives one year for the wrongful seizure of movable property under legal process; and article 90 gives three years for compensation for injury caused by an injunction wrongfully obtained, running from when the injunction ceases.

A worked example

Vinod owes Waseem nothing, but Waseem obtains an attachment before judgment over Vinod's shop stock, in a suit filed for that purpose, and tells Vinod he will lift it if Vinod sells him a piece of land cheaply.

Was the process regular? Assume the court's order was properly obtained on the material placed before it.

What is the wrong? The use of a regular process to achieve a purpose it was never meant to achieve, namely to force a sale of land. That is a malicious abuse of legal process on the Supreme Court's definition in West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568.

Is malicious prosecution available? No: no criminal law was set in motion.

Is a malicious civil proceeding claim available? Possibly, if the suit itself was brought without reasonable and probable cause and the attachment damaged Vinod's credit.

And the quicker route? An application under section 95 of the Code of Civil Procedure 1908 in the same suit, for compensation for an attachment obtained on insufficient grounds.

Distinctions that carry marks

What it does NOT mean

It does not require the process to be invalid. A perfectly regular process may be abused.

It does not require a favourable termination. The wrong is complete when the process is perverted.

It does not make every unsuccessful suit actionable. Ordinary civil proceedings give rise to costs, not damages.

It is not the only remedy. Section 95 of the Code of Civil Procedure 1908 provides a summary one.

Quick revision

1. Abuse of process: the malicious misuse or misapplication of a regularly issued process to accomplish a purpose not warranted by the order of the court.
2. West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, states the definition and the distinction between a malicious use and a malicious abuse of process.
3. Elements: process used, for an improper purpose, maliciously, causing damage.
4. Neither wrongful issue of the process nor a favourable termination is required.
5. Malicious civil proceedings are actionable where the proceeding damages by its mere existence: bankruptcy or winding-up petitions, unfounded claims to property, malicious arrest and attachment.
6. Section 95 of the Code of Civil Procedure 1908 gives compensation in the same suit for an arrest, attachment or injunction obtained on insufficient grounds.
7. Limitation: articles 79 and 80 give one year, and article 90 gives three years from when a wrongfully obtained injunction ceases.

Test yourself

1. What is a malicious abuse of legal process, and how does it differ from malicious prosecution? It consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by the order of the court, that is, the malicious perversion of a regularly issued process whereby an improper result is secured; that is the definition given by the Supreme Court in West Bengal State Electricity Board v. Dilip Kumar Ray, (2007) 14 SCC 568, which also draws the distinction between a malicious use and a malicious abuse of process. The differences from malicious prosecution are two. In malicious prosecution the complaint is that the process was set in motion without reasonable and probable cause, so its wrongful institution must be proved; in abuse of process the process may have been perfectly regular and the wrong lies in the purpose for which it is used. And malicious prosecution requires that the proceedings ended in the plaintiff's favour, while abuse of process does not, because the wrong is complete when the process is perverted.

2. Are malicious civil proceedings actionable? As a general rule, no. A person may use any form of legal process without liability beyond a liability for costs if he fails, because the ordinary civil suit is not treated as damaging in itself and the courts do not want litigation about litigation. An action does lie where a particular kind of proceeding is instituted maliciously and without reasonable and probable cause and causes damage, and the recognised examples are a bankruptcy or winding-up petition, an unfounded claim to property, and a malicious arrest or attachment before judgment; the reason is that such proceedings damage a person's credit or the enjoyment of his property by their mere existence. In India, section 95 of the Code of Civil Procedure 1908 supplies a quicker remedy, allowing the court in the same suit to award compensation where an arrest, attachment or temporary injunction was obtained on insufficient grounds.

The plaintiff's practical protection. A servant is often not worth suing. If liability stopped with him, the right would be theoretical.

There is a criticism, and mentioning it earns marks: liability without fault sits uneasily with the fault principle, and it may make a careful employer pay for a wrong he did everything to prevent. The answer is that the doctrine is not about blame but about who should carry a loss the enterprise generated.

The scope of the doctrine

It is joint and several. The master and the servant are both liable, and the plaintiff may sue either or both, as chapter [Joint Tortfeasors] explains. The servant does not escape merely because the master is liable.

It extends to the State. Article 300 of the Constitution makes the State suable, and chapter [Vicarious Liability of the State] works out how far. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, is the modern Indian illustration.

Facts. A government jeep was being driven not by its appointed driver but by another employee, with the driver sitting beside him and with his knowledge and consent. It was driven rashly and killed a scooterist, and the State denied liability because the man at the wheel was not authorised to drive.

Held. The State was vicariously liable. The modern trend is to make a master liable for acts which do not strictly fall within the course of employment as ordinarily understood, and where the appointed driver allowed a colleague to drive with his knowledge and consent while he sat beside him, the act was in the course of employment. The Court relied on Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, where a company was liable although its manager had taken a passenger without authority.

Why it matters here. It states the direction of Indian law: the connection with the employment is read generously, and a technical want of authority does not save the master.

A worked example

A courier company employs Deepak to deliver parcels on a motorcycle.

Deepak knocks down a pedestrian while delivering. The company is liable: the relationship is master and servant, there is a tort, and it was committed in the course of employment.

Deepak lends the motorcycle to a friend who knocks down the same pedestrian. The company's liability now depends on whether the friend was doing the company's work with its authority, actual or implied; Kanchanmala shows that a court will not be quick to let the employer out where the servant remained in charge.

Deepak assaults a customer who complains about a late delivery. Whether the assault is in the course of employment is the question in chapter [Course of Employment]; a wrongful mode of doing authorised work is within it, a personal quarrel is not.

Deepak takes the motorcycle home for a family wedding and crashes. That is a frolic of his own and the company is not liable.

Who does the pedestrian sue? Both. The company has the money, and the liability is joint and several.

What it does NOT mean

It does not require fault in the master. That is the whole point of the doctrine.

It does not excuse the servant. He remains liable, and in principle the master who pays may seek indemnity from him.

It is not confined to employees. Principals, partners and, in some circumstances, owners of vehicles are caught.

It does not apply to every act of a servant. The tort must be connected with the employment.

Quick revision

1. Vicarious liability: liability of one person for another's tort, arising from their relationship.
2. Maxims: qui facit per alium facit per se and respondeat superior.
3. Three requirements: a recognised relationship, a tort by the other, and a connection with the relationship.
4. Justifications: control, benefit, loss distribution and the deep pocket, deterrence, and the plaintiff's practical protection.
5. Criticism: liability without fault; the answer is that the doctrine allocates a loss rather than blame.
6. Liability is joint and several, and the servant remains liable.
7. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659: the course of employment is read generously; an unauthorised driver with the appointed driver beside him was still within it.

Test yourself

1. What is vicarious liability, and on what basis is it imposed? Vicarious liability is the liability of one person for a tort committed by another, imposed not because of any fault of his own but because of the relationship between them. Its basis is expressed in two maxims: qui facit per alium facit per se, he who acts through another acts himself, and respondeat superior, let the superior answer. Three things must be shown: a relationship the law recognises, principally master and servant but also principal and agent and partners; a tort committed by the person for whose act liability is claimed; and a connection between that tort and the relationship, which for a servant means that it was committed in the course of his employment. The liability is joint and several, so the servant remains liable too.

2. How is vicarious liability justified? By five arguments. Control: the master selects the servant, directs the work and can stop it, so he should answer for how it is done. Benefit: the work is done for the master's advantage, and the person who takes the profits of an activity should bear its losses. Loss distribution: the master can insure and can pass the cost into his prices, while the injured person can do neither, so placing the loss on him spreads it most efficiently. Deterrence: an employer who pays for his servants' wrongs will select and supervise them better. And practical protection: a servant is often not worth suing, so a rule stopping at him would leave the right theoretical. The standing criticism is that liability without fault is inconsistent with the fault principle; the answer is that the doctrine allocates a loss the enterprise created rather than apportioning blame.

3. Does the master's liability excuse the servant? No. Both are liable, and their liability to the plaintiff is joint and several, so he may sue either or both and recover the whole from either, subject to one satisfaction. In principle a master who has paid may seek indemnity or contribution from the servant whose wrong it was, since the servant is the primary wrongdoer, though in practice this is rarely pursued because the servant has no means, which is one of the reasons the doctrine exists at all.

For vehicles Indian law starts from a presumption, and one Supreme Court case sets its limits.

Facts. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, decided on 8 February 1966. The owner of a taxi entrusted it to a man who drove it, collected the fares, met the expenses and handed the balance and the accounts to the owner. A cleaner, employed either by the owner or on his behalf by the driver, was trained by the driver to drive and was taken to obtain a licence. While taking the driving test the cleaner injured the respondent. The driver was not in the vehicle.

Held. By a majority the owner was not liable. There is a presumption that a vehicle is driven on the master's business by his authorised agent or servant, but the presumption may be rebutted, and it was rebutted here: the evidence did not show that the owner had employed the cleaner to drive, or permitted him to drive, or asked him to take a test, or authorised the driver to employ strangers to drive; and the driver was not in the vehicle so as to be in control on the owner's behalf. For a master's liability to arise, the act must be a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by him.

Why it matters here. It gives both the presumption and the way to rebut it, and it supplies the formula for the course of employment that chapter [Course of Employment] then works out.

And the case on the other side. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, held the State liable where a jeep was driven by an employee who was not the appointed driver, because the appointed driver was sitting beside him and had allowed it with his knowledge and consent. Read the two together: what mattered in each was whether the master's servant remained in control.

A worked example

A hospital engages four people.

A staff nurse, paid a monthly salary, working the hospital's shifts with the hospital's equipment. A servant on any test.

A visiting surgeon, who operates twice a week, uses the hospital's theatre, is paid per operation and also practises elsewhere. The control test is unhelpful, since nobody tells a surgeon how to operate. The organisation test asks whether the surgical service is an integral part of what the hospital offers, and it usually is, so the hospital is generally liable to the patient for negligence in its theatre; Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, made the State liable for a mop left inside a patient in a government hospital.

A contractor who builds a new wing, choosing his own methods and workers. An independent contractor, and the hospital is not liable for his negligence, subject to the exceptions in chapter [Liability for an Independent Contractor].

A driver lent by an ambulance company to drive the hospital's vehicle for a week. The general employer remains liable unless the hospital had the right to control the manner of his driving, which is a heavy burden to discharge.

Distinctions that carry marks

What it does NOT mean

The label the parties use does not decide. A contract that calls a person a contractor may still create a contract of service.

Control is not the only test today. Integration and the multiple test supplement it.

A skilled professional is not outside the doctrine. The control test simply gives way to the others.

A lent servant is not automatically the temporary employer's. The burden of shifting liability is heavy.

Quick revision

1. Servant: contract of service, control over the manner of work. Independent contractor: contract for services, control over the result only.
2. Three tests: control, organisation or integration, and the modern multiple test.
3. The label the parties choose is not conclusive.
4. A master is liable for a servant's torts in the course of employment; an employer is ordinarily not liable for a contractor's.
5. Lent servant: the general employer remains liable unless the right to control the manner of the work passed.
6. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697: a vehicle is presumed to be driven on the master's business, but the presumption may be rebutted; the owner was not liable where a cleaner drove during a licence test.
7. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659: liability where the appointed driver let a colleague drive with his knowledge and consent while he sat beside him.

Test yourself

1. Distinguish a servant from an independent contractor and state the tests. A servant works under a contract of service, in which the employer has the right to control not only what work is done but the manner of doing it. An independent contractor works under a contract for services and undertakes to produce a result, choosing the method himself. Three tests are used. The control test asks who directs the manner of the work; it is the traditional starting point and fails for skilled professionals whom nobody can instruct in their craft. The organisation or integration test asks whether the work is done as an integral part of the business or is merely accessory to it. The modern multiple test weighs all the circumstances: the provision of tools and premises, who bears the financial risk, the mode of payment, whether the person may work for others or send a substitute, and the parties' own description, which is not conclusive. The distinction matters because a master answers for his servant's torts in the course of employment while an employer ordinarily does not answer for a contractor's.

2. Who is liable when a servant is lent to another employer? The general employer remains liable unless the right to control the manner of doing the work passed to the temporary employer, and the burden of establishing that shift is a heavy one. Telling the workman what to do is not the same as controlling how he does it, and the presumption is that the person who selected, employs and pays him retains that control. In India the question most often arises about vehicles, and Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, sets out the framework: there is a presumption that a vehicle is being driven on the master's business by his authorised servant, but it may be rebutted, and it was rebutted where a cleaner drove the taxi during a licence test without the owner's authority and without the driver being present to control the vehicle on his behalf.

3. Is a hospital liable for the negligence of its doctors? Generally yes, where the doctor is part of the hospital's organisation, even though nobody can control the manner in which a doctor exercises clinical judgment. The control test gives way to the organisation or integration test: treatment is an integral part of what a hospital offers, so negligence in its wards and theatres is the hospital's responsibility. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, is the Indian authority: a mop was left inside a patient during an operation in a government hospital, and the Court held that once death by negligence in the hospital is established the State is liable to pay damages. The position may differ where a patient engages a consultant independently and the hospital merely provides facilities.

5. A frolic of his own. Where the servant abandons the master's business for his own, the master is not liable. A detour on the master's business is not a frolic; a journey undertaken purely for the servant's own ends is.

6. Delegation by the servant. If the servant hands the job to somebody else without authority, the master is not liable unless the servant remained in control, which is where Sitaram Motilal Kalal and State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, part company: in the second case the appointed driver sat beside the man at the wheel and had allowed him to drive with his knowledge and consent, and the State was liable.

7. A criminal act. A servant's theft or fraud is within the employment where it was committed in the course of doing what he was employed to do, particularly where the employment gave him the opportunity and the master held him out as trustworthy.

The Indian direction of travel

Both Supreme Court cases in this chapter point the same way. In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, a company was held liable although its manager had taken a passenger without authority, and the Court noted that the recent trend is to make the master liable for acts which do not strictly fall within the course of employment as ordinarily understood. Kanchanmala repeats that in terms. So an Indian answer should say that the connection with the employment is construed generously.

A worked example

A transport company employs Farid to drive a lorry from Pune to Surat.

He speeds and hits a car. Course of employment: a wrongful mode of doing authorised work.

He takes a fifteen kilometre detour to eat and hits a car there. Still in the course: a deviation reasonably incidental to the journey.

He drives 200 kilometres to Nashik to visit his family and hits a car there. A frolic of his own; the company is not liable.

He lets a friend drive while he sleeps in the cabin. On Sitaram Motilal Kalal the company escapes only if the delegation was outside his authority and he was not in control; on Kanchanmala the fact that he was in the vehicle points the other way.

He is told never to give lifts and gives one; the passenger is hurt. A prohibition on the mode of doing the work, so the company may still be liable, particularly if the lift served the company's purposes in some way.

He steals goods he was carrying. Within the employment, because the employment gave him the goods and the opportunity, and the owner entrusted them to the company.

What it does NOT mean

It does not depend on authority for the wrongful act itself. No master authorises negligence; the question is whether the job was authorised.

A prohibition does not automatically end the employment. Only a prohibition limiting the sphere of the work does.

A deviation is not a frolic. The scale and purpose of the departure decide.

A crime is not automatically outside the employment. Theft and fraud in the course of the work may be within it.

Quick revision

1. The formula: a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing an authorised act.
2. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, states it and rebuts the presumption about vehicles on the facts.
3. Careless, mistaken, excessive and forbidden modes of doing the job are all within the employment.
4. A prohibition on the mode does not exclude liability; a prohibition on the sphere does.
5. A frolic of the servant's own is outside; a deviation on the master's business is not.
6. Unauthorised delegation takes the act outside unless the servant remained in control.
7. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, and Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735: the connection with employment is construed generously in India.
8. Theft or fraud by a servant may be within the employment where the work gave him the opportunity.

Test yourself

1. When is an act done in the course of employment? When it is either a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing some act authorised by the master. That is the formula stated by the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697. It follows that the master is liable where the servant does the job carelessly, mistakenly, excessively, or even in a way expressly forbidden, provided the prohibition limited the manner of the work rather than its sphere. He is not liable where the servant has abandoned the work for purposes of his own, which is a frolic of his own, though a deviation reasonably incidental to the master's business remains within the employment. Unauthorised delegation to another takes the act outside the employment unless the servant remained in control of the work.

2. Does an express prohibition by the master end his liability? Not by itself. The law distinguishes between a prohibition that limits the sphere of the employment and one that limits the mode of doing the work. A servant told not to drive at all who drives is outside his employment; a servant told not to drive fast who drives fast is doing the authorised work in a forbidden manner and the master remains liable. The reason is that a master cannot escape responsibility for the risks his enterprise creates by issuing instructions, since a rule to the contrary would allow every employer to immunise himself with a notice board. The question in each case is what the servant was employed to do, not what he was told about how to do it.

3. "The trend in India is to construe the course of employment generously." Discuss. The proposition is supported by two Supreme Court decisions. In Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co., AIR 1977 SC 1735, a company's manager took a passenger in the company's car without authority, and the Court, noting that the recent trend is to make the master liable for acts which do not strictly fall within the course of employment as ordinarily understood, held the company vicariously liable. In State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, a government jeep was driven by an employee who was not its appointed driver, with the driver sitting beside him and permitting it, and the State was held liable. Against them stands Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, where the owner escaped because the person driving had no authority of any kind and the driver was not present to control the vehicle. The three together show a generous construction with a limit: the servant must still be doing the master's work, or the work must still be under his control.

The Indian rule goes furthest here. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, so that it cannot escape by pointing at anybody else, and it cannot rely on any of the exceptions available under Rylands v. Fletcher. Section 3 of the Public Liability Insurance Act 1991 makes the same point statutorily, by placing liability on the owner who handles the hazardous substance.

A worked example

A housing society engages a contractor to demolish an old wing and build a new one.

A workman is injured by the contractor's faulty scaffolding. The society is not liable; the claim is against the contractor as his employer.

Debris from the demolition falls into the neighbouring plot and injures a child. Demolition is extra-hazardous work, and the society may be liable notwithstanding the contract.

The excavation withdraws support and the neighbour's wall cracks. The society is liable: the duty not to withdraw support is its own.

The society engaged a contractor with no licence and a record of collapses. That is the society's own negligence in selection.

The contractor stores a large quantity of a hazardous chemical on the site and it escapes. Strict liability attaches to the occupier who brought it on to the land, and if the activity is hazardous or inherently dangerous the rule in M.C. Mehta v. Union of India, AIR 1987 SC 1086, imposes an absolute and non-delegable duty. Under section 3 of the Public Liability Insurance Act 1991 the owner handling the substance is liable to give relief without any proof of fault.

What it does NOT mean

It does not mean the injured person has no remedy. He sues the contractor.

It does not mean a written contract shifts every risk. A non-delegable duty is not delegated by a document.

It does not apply to strict or absolute liability. Those attach to the person carrying on the activity.

It does not protect an employer who chose badly. Negligent selection is his own tort.

Quick revision

1. General rule: no liability for the torts of an independent contractor.
2. Reason: no control over the manner of the work.
3. Exceptions: authorisation or ratification; the employer's own negligence; extra-hazardous work; withdrawal of support and works on a highway; non-delegable duties; and strict or absolute liability.
4. Rylands v. Fletcher itself was a case where contractors did the work and the defendants were still liable.
5. M.C. Mehta v. Union of India, AIR 1987 SC 1086: an absolute and non-delegable duty on an enterprise carrying on a hazardous activity.
6. Section 3 of the Public Liability Insurance Act 1991 places no-fault liability on the owner handling a hazardous substance.

Test yourself

1. Is an employer liable for the torts of an independent contractor? As a general rule, no. Vicarious liability rests on the right to control the manner in which work is done, and an employer of an independent contractor has no such right: he specifies a result and the contractor, who is in business on his own account, chooses the method. The injured person's remedy is therefore against the contractor. The rule is subject to six exceptions: where the employer authorised or ratified the wrongful act; where he was himself negligent, in selecting an incompetent contractor or in giving defective instructions; where the work is extra-hazardous; where it involves the withdrawal of support or the creation of danger on a highway; where the duty is non-delegable, so that the employer must see that care is taken rather than merely arrange for care; and where liability is strict or absolute, in which case it attaches to the person carrying on the activity regardless of who does the work.

2. What is a non-delegable duty? A duty which the person on whom it lies must see performed, so that he remains answerable even if he entrusts the work to a competent independent contractor. The distinction is between a duty to take care, which can be discharged by employing a competent person, and a duty to see that care is taken, which cannot. Examples are the employer's duty to provide a safe system of work, certain duties of an occupier towards visitors, duties imposed by statute in terms that fix responsibility on a named person, and above all liability for hazardous activities: in M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, and section 3 of the Public Liability Insurance Act 1991 places the same kind of liability on the owner who handles a hazardous substance.

The principle. Where an owner asks another person to do something for him with his chattel, the other is doing the owner's work, and the owner is liable for his negligence in doing it even though there is no contract of employment.

Facts. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, decided on 8 February 1966. A taxi owner entrusted the vehicle to a driver who collected the fares and accounted to him; the driver trained the cleaner and took him for a driving test, during which the cleaner injured the respondent. The driver was not in the vehicle.

Held. The owner was not liable. There is a presumption that a vehicle is driven on the master's business by his authorised agent or servant, but it may be rebutted, and it was, because the owner had not employed or permitted the cleaner to drive, had not asked him to take a test, and had not authorised the driver to employ strangers; nor was the driver present to control the vehicle on his behalf. The act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing an act authorised by him.

And the other side. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, held the State liable where a jeep was driven by an employee who was not the appointed driver, the appointed driver being beside him and having consented, because the modern trend is to make the master liable for acts which do not strictly fall within the course of employment as ordinarily understood.

Why they matter here. Together they show that what the court looks for is whether the vehicle was being used for the owner's purposes and whether the person the owner trusted remained in control.

Where vicarious liability does NOT arise

Parent and child. A parent is not liable simply as a parent, as chapter [Who May Not Be Sued] explains; he is liable where the child was his servant or agent, or where he was himself negligent.

Employer and independent contractor, subject to the exceptions in chapter [Liability for an Independent Contractor].

Hirer of a vehicle with its driver, where the driver remains the general employer's servant.

A worked example

Gopal owns a car.

His driver, employed on a salary, knocks somebody down while taking Gopal to work. Master and servant: Gopal is liable.

Gopal asks his neighbour to take the car and fetch his daughter from the station, and the neighbour knocks somebody down. Casual delegation: the neighbour was doing Gopal's work with his authority, and Gopal is liable although the neighbour is neither servant nor agent in any formal sense.

Gopal lends the car to the same neighbour for the neighbour's own holiday. No liability: the car was not being used for Gopal's purposes.

Gopal's manager, authorised to run his shop, makes a fraudulent statement to a customer while selling goods. Principal and agent, and section 238 of the Indian Contract Act 1872 states the same rule for the contract: the fraud of an agent acting in the course of his business for his principal affects the principal.

One of Gopal's partners defames a supplier while negotiating for the firm. All the partners are liable, because a partner is an agent of the firm for the purposes of its business.

Quick revision

1. The relations: master and servant, principal and agent, partners, company and its people, and casual delegation.
2. Section 182 of the Indian Contract Act 1872 defines agent and principal; section 188 fixes the extent of an agent's authority; section 238 makes an agent's fraud in the course of the business the principal's concern.
3. A principal is liable for an agent's tort within the scope of express, implied or apparent authority.
4. Partners are agents of the firm; liability is joint and several.
5. Casual delegation: the owner of a chattel is liable where another uses it for the owner's purposes with his authority.
6. Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697: the presumption about vehicles, and how it is rebutted.
7. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659: liability where the trusted driver remained in the vehicle and consented.
8. No liability merely as a parent, nor for an independent contractor except in the recognised cases.

Test yourself

1. What relations besides master and servant attract vicarious liability? Principal and agent, where the principal answers for torts committed by the agent within the scope of his authority, express, implied or apparent; the Indian Contract Act 1872 supplies the framework, section 182 defining agent and principal, section 188 the extent of an agent's authority, and section 238 providing that misrepresentations or frauds by agents acting in the course of their business for their principals have the same effect as if made by the principals, while those outside their authority do not. Partners, who are agents of the firm for the purposes of the business, so that a tort by one in the ordinary course makes all liable jointly and severally. Companies, which answer for their servants and agents and whose directing minds' acts are treated as the company's own. And casual delegation, where an owner entrusts a chattel to another to be used for the owner's purposes.

2. Explain casual delegation with Indian authority. Casual delegation describes the case where an owner asks another person, who is neither his servant nor his agent in any formal sense, to do something for him with his property, typically to drive his vehicle. Because the other is doing the owner's work with his authority, the owner answers for his negligence. Indian law begins from a presumption that a vehicle is being driven on the owner's business by his authorised servant or agent, but Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, holds that the presumption may be rebutted, and rebutted it where a cleaner drove during a licence test without the owner's authority and with the driver absent from the vehicle. State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) 5 SCC 659, shows the other side: the State was liable where the appointed driver sat beside a colleague and allowed him to drive with his knowledge and consent. The question in each case is whether the vehicle was being used for the owner's purposes and whether the person he trusted remained in control.

Two: Vidhyawati.

Facts. State of Rajasthan v. Vidhyawati, AIR 1962 SC 933, decided on 2 February 1962. A Government jeep being driven from the repair shop to the Collector's residence by a State employee was driven rashly and negligently and killed a pedestrian. His widow and daughter sued.

Held. The State was liable. Its liability for a tort committed by its servant within the scope of employment is the same as that of any other employer. Article 300(1), by using the words "in like cases", refers back through section 176(1) of the Government of India Act 1935 and its predecessors to the liability of the East India Company.

Three: Kasturi Lal.

Facts. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039, decided on 29 September 1964. Police at Meerut arrested a partner of a bullion firm on suspicion and seized gold and silver, which were kept in the police malkhana. The head constable in charge misappropriated the gold and absconded to Pakistan. The firm sued the State for its value.

Held. The claim failed. The powers to arrest, to search and to seize are conferred by statute on specified officers and can properly be characterised as sovereign powers, so although the negligence was that of State employees in the course of employment, no claim lay. The Court approved the P. and O. case, distinguished Vidhyawati, and suggested that Parliament legislate.

Four: Nagendra Rao.

Facts. N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205, decided on 6 September 1994. Stocks of fertiliser and foodgrain were seized under control orders made under the Essential Commodities Act 1955, were not disposed of, and deteriorated. The trial court decreed their value; the High Court reversed on the authority of Kasturi Lal.

Held. The appeal was allowed and the decree restored. The doctrine of sovereign immunity has no place in a modern welfare State which runs factories and carries on trade; the old distinction between sovereign and non-sovereign functions should no longer decide the liability of the State; and the defence is not available where the State or its officers act negligently in the exercise of statutory powers over a citizen's property. The Court recorded that the Law Commission had recommended legislation and that the Government (Liability in Tort) Bill of 1965 was introduced, withdrawn, reintroduced in 1967 and lapsed.

Where the law stands now

Three propositions, and an answer should give all three.

Kasturi Lal has not been formally overruled, but it has been so narrowed that it is rarely applied.

The sovereign or non-sovereign division is no longer the test. Nagendra Rao says so in terms, and the modern question is whether the function is one that a private person could perform and whether immunity can be justified in a welfare State.

The constitutional remedy has overtaken the private law question altogether. Where a fundamental right is violated, compensation is awarded under articles 32 and 226 and sovereign immunity is no answer to it at all. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, and Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988, are the authorities, and chapter [Constitutional Tort] works them out. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, made the State liable for negligence in a government hospital, which is the plainest modern illustration in private law.

A worked example

A State's officers do four things on the same day.

A State transport bus injures a pedestrian. Running a bus service is something a private person may do; the State is liable on Vidhyawati.

A police officer seizes goods and they rot in the malkhana. On Kasturi Lal the seizure was an exercise of sovereign power and no claim lay; on Nagendra Rao the State is liable for negligence in dealing with a citizen's property under statutory powers, and Nagendra Rao is the later and better view.

A prisoner dies in custody after a beating. The private law question hardly arises: compensation is awarded in a writ petition for the violation of article 21, and sovereign immunity is no defence, on Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

A patient dies because a mop was left inside her in a government hospital. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634: once death by negligence in the hospital is established, the State is liable to pay damages.

Quick revision

1. Article 300(1): the State may be sued "in like cases" as the Dominion and the Provinces, which sends the court back to the liability of the East India Company.
2. P. and O. Steam Navigation: liable for what a private person might do, not for the exercise of sovereign power.
3. State of Rajasthan v. Vidhyawati, AIR 1962 SC 933: liable like any other employer.
4. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh, AIR 1965 SC 1039: not liable for an exercise of statutory police powers.
5. N. Nagendra Rao and Co. v. State of Andhra Pradesh, (1994) 6 SCC 205: sovereign immunity has no place in a welfare State; the old division should no longer decide.
6. No statute has been passed; the 1965 Bill lapsed.
7. Constitutional compensation under articles 32 and 226 bypasses the question, and sovereign immunity is no answer to it.
8. Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634: liability for negligence in a government hospital.