BLS LLB 5 Years Sem 5 Torts 2023-24 Question Paper with Solutions

The Act deals with e-commerce in four ways:

1. The definition of consumer, Section 2(7), Explanation (a), provides that buying goods and hiring or availing services include offline and online transactions through electronic means, teleshopping, direct selling and multi-level marketing;
2. Section 2(17) defines an "electronic service provider" as a person who provides technologies or processes enabling a product seller to advertise or sell online, or who provides an online market place or online auction sites, which brings the platform itself within "service";
3. Section 94 empowers the Central Government to take measures to prevent unfair trade practices in e-commerce and direct selling, under which the Consumer Protection (E-Commerce) Rules, 2020 were made; and
4. Section 34(2)(d) allows a complaint to be filed where the complainant resides or personally works for gain, so an online purchaser need not travel to the seller's district.

Strict liability is liability without proof of fault: the defendant answers for the harm his activity causes although he was not negligent and intended no injury. Its foundation is the rule in Rylands v Fletcher (1868), that a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and is answerable for all the damage which is the natural consequence of its escape.

Its three essentials are a dangerous thing, an escape from the defendant's premises, and a non-natural use of land, added by Lord Cairns LC.

Damages in tort are unliquidated, that is assessed by the court, on the principle of restitutio in integrum: the plaintiff is to be placed, so far as money can do it, in the position he would have occupied had the tort not been committed.

The factors considered are:

1. the actual pecuniary loss: expenses incurred, loss of earnings to trial, and loss of future earning capacity, calculated by taking the annual loss as the multiplicand and applying a multiplier fixed by reference to age;
2. the non-pecuniary loss: pain and suffering, loss of amenities of life and loss of expectation of life;
3. remoteness, so that only damage of a reasonably foreseeable kind is recoverable (The Wagon Mound, 1961);
4. mitigation, so that loss the plaintiff could reasonably have avoided is excluded; and
5. the conduct of the parties, which may support aggravated or exemplary damages, or a reduction for contributory negligence.

• Article 88: compensation for wrongful seizure of movable property, one year;
• Article 113, the residuary article: three years from the date the right to sue accrues, which governs negligence, nuisance, deceit and most other torts.

2. A reference to the Central Consumer Protection Authority. Under Sections 19 to 21 the CCPA may inquire on its own motion or on a complaint, order recall of goods and reimbursement of the price, order discontinuance of the practice, and impose a penalty up to Rs. 10 lakh, rising to Rs. 50 lakh for repeat contraventions, with power to prohibit an endorser for one year, extending to three.
3. The ordinary civil remedies, which Section 100 preserves, the Act being in addition to and not in derogation of any other law: a suit for damages in tort for deceit or injurious falsehood, rescission of a contract induced by fraud under Section 19 of the Indian Contract Act, 1872, and an injunction.

There are two separate consequences, and the answer should give both.

1. Criminal punishment, Section 89. Any manufacturer or service provider who causes a false or misleading advertisement to be made which is prejudicial to the interest of consumers shall be punished with imprisonment for a term which may extend to two years and with fine which may extend to Rs. 10 lakh; and for every subsequent offence, with imprisonment which may extend to five years and with fine which may extend to Rs. 50 lakh.

2. Penalty imposed by the Central Consumer Protection Authority, Section 21. The CCPA may impose a penalty up to Rs. 10 lakh on a manufacturer or an endorser, and up to Rs. 50 lakh for every subsequent contravention. It may also prohibit the endorser of a false or misleading advertisement from making any endorsement for up to one year, extending to three years for every subsequent contravention.

So the maximum is five years' imprisonment and a fine of Rs. 50 lakh for a repeat offence under Section 89.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, known as The Wagon Mound (No. 1) [1961] AC 388, is the decision of the Privy Council which settled that the test of remoteness of damage in negligence is reasonable foreseeability and not directness.

Facts. The appellants chartered the vessel Wagon Mound, which was taking on furnace oil at a wharf in Sydney Harbour. Through the carelessness of their servants a large quantity of oil was spilled into the bay, and it drifted about 200 yards to the respondents' wharf, where welding and oxy-acetylene cutting were in progress on a ship under repair. The respondents' manager stopped work, made enquiries, was advised that furnace oil could not be ignited on water, and told the men to resume with precautions. Two days later molten metal fell from the wharf onto a piece of cotton waste or rag floating on the oil, which acted as a wick, set the oil alight, and the wharf and the ship were destroyed.

The sequel: The Wagon Mound (No. 2) [1967] 1 AC 617. The owners of two ships damaged in the same fire sued. On the evidence in that case a reasonable ship's engineer would have realised there was a small but real risk of the oil catching fire. The Privy Council held the appellants liable, laying down that a risk which is foreseeable though very slight must be guarded against where there is no justification for running it, that is where it could be eliminated at small cost and with no advantage lost.

1. Section 306 of the Indian Succession Act, 1925. All demands whatsoever, and all rights to prosecute or defend any action or special proceeding, existing in favour of or against a person at the time of his death, survive to and against his executors or administrators, except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party.
2. The Legal Representatives Suits Act, 1855. An action lies against the executors of a deceased wrongdoer for a wrong done by him to the property of another, if brought within one year of the death.
3. The Fatal Accidents Act, 1855. Where death is caused by a wrongful act, neglect or default such as would, had death not ensued, have entitled the injured party to sue, an action lies for the benefit of the wife, husband, parent and child. This is a new and independent cause of action vested in the dependants for their own loss, not an inherited one.

3. The Fatal Accidents Act, 1855. Where death is caused by a wrongful act, neglect or default such as would, had death not ensued, have entitled the injured party to sue, an action lies for the benefit of the wife, husband, parent and child.
4. The Motor Vehicles Act, 1988, Chapters X to XII, provides its own machinery before the Motor Accidents Claims Tribunal.
5. The Consumer Protection Act, 2019, Section 2(5)(vi), lets a deceased consumer's legal heir or representative complain.

The distinction that decides cases. The surviving action under Section 306 belongs to the estate and is measured by what the deceased lost: expenses incurred before death, loss of earnings between injury and death, pain and suffering in that interval. The Fatal Accidents Act claim belongs to the dependants, is not inherited, and is measured by their loss of dependency on the multiplicand and multiplier method of Sarla Verma v Delhi Transport Corporation (2009) 6 SCC 121 and National Insurance Co Ltd v Pranay Sethi (2017) 16 SCC 680. Both may be brought and they do not duplicate.

He need not prove that the defendant knew the extrinsic facts or intended the defamatory meaning; liability in defamation is, in this respect, strict.

Illustrations.

Cassidy v Daily Mirror Newspapers Ltd (1929) 2 KB 331. A newspaper published a photograph of Mr Cassidy with a young woman, captioned as an announcement of their engagement. Mrs Cassidy, who was in fact his wife and was known to her acquaintances as such, sued. On their face the words were entirely innocent. To those who knew that she was held out as his wife, they conveyed that she had been living with him without being married. The innuendo succeeded, and it was no answer that the newspaper did not know she existed.

Tolley v J S Fry and Sons Ltd (1931) AC 333. A well-known amateur golfer was depicted in a chocolate advertisement without his consent. To those who knew the rules of amateur status in golf, the advertisement conveyed that he had prostituted his amateur status for money, and the innuendo succeeded.

The standard textbook illustration is a statement that A has given birth to a child, innocent on its face, but defamatory to those who know that A is unmarried.

Section 2(9) of the Consumer Protection Act, 2019 defines "consumer rights" as including six rights:

1. The right to be protected against the marketing of goods, products or services which are hazardous to life and property. This is the right to safety. It is given effect by Section 20, which empowers the Central Consumer Protection Authority to recall goods and withdraw services which are dangerous, hazardous or unsafe and to order reimbursement of the price; by Section 39, allowing a Commission to order the withdrawal of hazardous goods from sale and the discontinuance of their manufacture; and by Chapter VI on product liability.
2. The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, so as to protect the consumer against unfair trade practices. It is enforced through the definition of unfair trade practice in Section 2(47), which makes false representation about standard, quality, price and sponsorship actionable, through the offence of misleading advertisement in Section 89, and through the E-Commerce Rules, 2020, which require display of the seller's identity, the country of origin and the total price with a break-up.

Origin. The six are drawn from the United Nations Guidelines for Consumer Protection, adopted by the General Assembly in 1985, which themselves build on the four rights stated by President Kennedy in his message to the United States Congress in 1962: the rights to safety, to be informed, to choose and to be heard.

a. Can Susan hold her neighbour liable for the damage caused to her property? Explain.

Yes. The neighbour is liable, in negligence and in nuisance.

The rule about hazards on land. An occupier is liable for a danger arising on his land, whether created by him, by a trespasser or by nature itself, if he knows or ought to know of it and fails to take reasonable steps to abate it. He is said to adopt or continue the nuisance.

1. Knowledge. He had actual notice: Susan told him. That disposes of the only real defence available in tree cases, which is that the defect was latent. Noble v Harrison (1926) is the case where a branch fell from an apparently sound beech tree because of a hidden defect which no reasonable inspection would have revealed, and the defendant was not liable. Contrast Brown v Harrison (1947), where the tree was visibly dangerous and the occupier was liable. Susan's tree was visibly and dangerously leaning, and she said so.
2. Failure to take reasonable steps. He did nothing. Cutting back or felling a leaning tree is an ordinary and inexpensive precaution, so the measured duty in Goldman v Hargrave plainly required it.
3. Damage. The roof was damaged, so the nuisance is complete.

Susan therefore has a claim in negligence, the neighbour owing her the duty of an occupier in respect of a known hazard, and in private nuisance, the tree being an interference with the use and enjoyment of her land which he continued after notice.

b. What is the neighbour's potential defence in this situation?

His only real defence is act of God, and on these facts it will fail.

• Latent defect. Noble v Harrison would protect him if the danger had been hidden. It was visible, and he was told of it.
• Contributory negligence. He might say Susan should have cut the overhanging portion herself. She was entitled to abate the nuisance, but abatement is a right, not a duty, and it does not lie against the trunk on his land. Failing to exercise a self-help remedy is not contributory negligence.
• Prescription. Twenty years' continuance as of right can create an easement, but the danger here arose recently and the tree's leaning is a hazard, not a continuing use of a kind that can be prescribed for.
• Act of a stranger. Nothing on the facts suggests a third party's intervention.

1. Bob is not her servant. Vicarious liability of a master arises only where the wrongdoer was employed under a contract of service and was acting in the course of that employment. Bob is a borrower, not an employee, and there is no employment at all.
2. Bob is not her agent. The one situation in which the owner of a vehicle is liable for the acts of a person who is not his servant is casual delegation: where the borrower is driving on the owner's behalf and for the owner's purposes, so that he is the owner's agent. Ormrod v Crosville Motor Services Ltd (1953) is the case: the owner asked a friend to drive his car to Monte Carlo, where they were to use it on a shared holiday, and the owner was held liable, because the friend was driving partly for the owner's purposes. Morgans v Launchbury [1973] AC 127 confirms the limit: mere permission to use the vehicle is not enough; there must be delegation of a task in which the owner has an interest.

On these facts Bob borrowed the bicycle for his own purposes for a day. Alice had no interest in the journey, gave him no task and derived no benefit. The agency limb therefore fails.

Neither is alleged here, so the pedestrian's remedy is against Bob alone.

b. Can Alice argue that she is discharged from liability since she loaned the bicycle without any negligence on her part?

Yes, and that is the correct analysis, though it is more accurate to say that no liability ever attached to her.

The argument should not be put as a discharge of liability, because that suggests a liability which once existed and has come to an end. Alice's position is that no cause of action ever arose against her:

1. She committed no wrongful act. Lending a bicycle to a competent adult is entirely lawful and is not, without more, a breach of any duty of care owed to road users. Under the neighbour principle in Donoghue v Stevenson (1932) the question is whether she could reasonably foresee that her act of lending would injure someone, and lending a sound machine to a competent rider carries no foreseeable risk that the law recognises.

a. Can David hold Mary liable for his back pain and medical expenses under the principle of remoteness of damage? Explain.

Yes, provided he proves that the collision caused or materially aggravated the back pain.

Negligence is established. Rear-ending a vehicle in front is the classic instance of negligent driving, and Mary's want of care is not in dispute on the facts as given. The only question is how far her responsibility extends.

• The eggshell skull rule. Once injury of a foreseeable kind is established, the defendant takes his victim as he finds him and is liable for the full extent of the harm, however unusual the plaintiff's susceptibility. Smith v Leech Brain and Co [1962] 2 QB 405: a negligent burn on the lip caused a pre-malignant condition to become cancerous and the workman died; the employers were liable for the death, because a burn was foreseeable. Dulieu v White and Sons (1901): "if a man is negligently run over, it is no answer to the sufferer's claim that he would have suffered less injury if he had not had an unusually thin skull or an unusually weak heart."

So a disproportion between the impact and the injury is no defence. A minor collision which produces a severe spinal injury in a susceptible person is exactly the situation the eggshell skull rule was made for, and whiplash and cervical or lumbar injuries from low-speed rear-end collisions are medically well recognised.

What David must still prove is causation. Remoteness is not the difficulty; causation is. He must show, on the balance of probabilities and by medical evidence, that:

1. the back pain would not have occurred but for the collision, or

1. Causation, where the condition was already symptomatic and progressive. If medical evidence shows that David's back condition was already deteriorating and would have produced the same pain and required the same treatment at the same time, then the collision caused nothing, and the claim fails on the "but for" test. This is not the eggshell skull situation at all, because there the accident triggers a latent weakness; here it would have triggered nothing.
2. Acceleration. Where the condition was progressive but the accident brought it on earlier than it would otherwise have appeared, Mary is liable only for the period of acceleration. If the pain would have arisen in five years anyway, she pays for the five years of suffering and loss she caused, not for the whole condition. This is the standard approach in personal injury assessment and is where most such disputes are actually resolved.

Two further arguments open to her:

a. Can Ravi sue Vijay under Consumer Protection Act, 2019? What are the remedies available with Ravi?

No. Nirav is not a consumer, and a complaint under the Consumer Protection Act, 2019 is not maintainable.

Section 2(7) defines a consumer as a person who buys goods for a consideration, but does not include a person who obtains such goods for resale or for any commercial purpose.

Explanation (a) to the section provides that "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.

Fifteen cars for a taxi company is a commercial purpose, and the livelihood exception does not save it, for two reasons:

1. A civil suit for breach of contract, on the implied conditions in the Sale of Goods Act, 1930:

• Section 15, sale by description: the goods must correspond with the description;
• Section 16(1), fitness for purpose: where the buyer makes known to the seller the particular purpose for which the goods are required, so as to show that he relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply, there is an implied condition that they shall be reasonably fit for that purpose. Nirav told Vijay the cars were for a taxi company, which is the clearest possible statement of purpose;
• Section 16(2), merchantable quality: where goods are bought by description from a seller who deals in goods of that description, there is an implied condition that they shall be of merchantable quality.
• The remedies are rejection of the goods and repudiation under Section 13 while the condition remains a condition, or damages for breach of warranty under Section 59, together with Sections 73 and 74 of the Indian Contract Act, 1872 on the measure of damages.

1. The manufacturer's warranty, enforceable as a contract.

3. On the merits, that there is no defect. "Defect" in Section 2(10) means a fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law or under any contract. He may show that the car conforms to the applicable standards and to the contract.
4. Caveat emptor, and examination by the buyer. The proviso to Section 16(2) of the Sale of Goods Act, 1930 provides that if the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed. A purchaser of fifteen cars will ordinarily have inspected them, and Vijay will say so.
5. He is a dealer, not the manufacturer. Where the defect is one of manufacture and the dealer merely sold a sealed and warranted product, liability is properly the manufacturer's. This is only a partial answer, since the dealer remains liable on the contractual implied conditions to his own buyer, but it will shift the burden in substance.

2. Territorial jurisdiction, Section 34(2). A complaint may be filed where the opposite party resides, carries on business, has a branch office or personally works for gain; where any one of several opposite parties does so, with permission or acquiescence; where the cause of action wholly or in part arises; or where the complainant resides or personally works for gain. The last is new and is the most consumer-friendly provision in the chapter.

3. Appellate jurisdiction. The State Commission hears appeals from District Commissions (Section 47(1)(a)(ii)); the National Commission hears appeals from State Commissions (Section 58(1)(a)(iii)) and from orders of the Central Consumer Protection Authority under Sections 20 and 21 (Section 24).

4. Revisional jurisdiction. The State Commission (Section 47(1)(b)) and the National Commission (Section 58(1)(b)) may call for the records of a proceeding before a subordinate Commission where it appears that it has exercised a jurisdiction not vested in it, failed to exercise one so vested, or acted illegally or with material irregularity.

5. Power to refer to mediation, Section 37, at the first hearing or at any later stage, where it appears that there exist elements of a settlement acceptable to both parties, with their written consent.
6. Power to review its own orders, Sections 40, 50 and 60, where there is an error apparent on the face of the record, on its own motion or on the application of a party within thirty days.
7. Power to declare unfair contract terms void, exercisable by the State and National Commissions under Sections 49(2) and 59(2).
8. Power to enforce. An order is enforceable as a decree of a civil court (Section 71), and the Commission may issue a certificate of recovery to the Collector for recovery as arrears of land revenue (Section 71 proviso).
9. Power to punish for non-compliance, Section 72: imprisonment of not less than one month extending to three years, or fine of not less than Rs. 25,000 extending to Rs. 1 lakh, or both.
10. Power to dismiss frivolous complaints with costs, and to award costs generally.

C. Functions: the reliefs it may grant, Section 39.

11. pay a sum, not less than twenty-five per cent of the value of the defective goods or deficient services, to the Consumer Welfare Fund, where the loss or injury has been suffered by a large number of consumers not readily identifiable;
12. issue a corrective advertisement to neutralise the effect of a misleading one, at the opposite party's own cost; and
13. pay adequate costs.

D. Time limits. Section 38(7) requires the complaint to be decided within three months from the date of receipt of notice by the opposite party where the goods do not require analysis, and within five months where analysis is required. Section 69 bars a complaint filed more than two years after the cause of action arose, subject to condonation for sufficient cause with reasons recorded.

E. Appeals. From the District Commission to the State Commission within forty-five days, on deposit of fifty per cent of the amount ordered (Section 41); from the State Commission to the National Commission within thirty days (Section 51); from the National Commission to the Supreme Court within thirty days (Section 67). An appeal from a State Commission's appellate order lies to the National Commission only on a question of law (proviso to Section 51(1)).

Limits: consent obtained by fraud (Hegarty v Shine, 1878); consent under legal or moral compulsion, so a rescuer is not met by the defence (Haynes v Harwood, 1935, the policeman injured stopping a bolting horse); and volenti is no answer to a breach of statutory duty.

Effect: eliminates liability entirely.

2. Inevitable accident. An accident which could not have been avoided by ordinary care, caution and skill. Stanley v Powell (1891): a pellet glanced off a tree and struck a beater; no negligence and no intention, so no liability. Brown v Kendall (1850), the fighting dogs. Assam State Cooperative Marketing Federation v Anubha Sinha (AIR 2001 Gau 18).

Effect: eliminates liability in torts requiring intention or negligence. It is no defence to strict liability.

3. Act of God (vis major). An operation of natural forces without human intervention, so extraordinary that no human foresight could reasonably anticipate it. Nichols v Marsland (1876), extraordinary rainfall bursting ornamental lakes, succeeded. Greenock Corporation v Caledonian Railway (1917), where the rainfall was heavy but not unprecedented, failed. Ramalinga Nadar v Narayana Reddiar (AIR 1971 Ker 197): the act of an unruly mob is the act of man, not of God.

7. Plaintiff the wrongdoer: ex turpi causa non oritur actio. No action arises from a base cause, but the defence is narrow: the illegality must be connected with the harm. Bird v Holbrook again shows that a defendant does not get a free hand merely because the plaintiff was trespassing.

8. Mistake. As a rule mistake, of fact or of law, is no defence. The exceptions are torts in which the state of mind is an ingredient, notably malicious prosecution and deceit, and the defence of qualified privilege in defamation.

9. Judicial and quasi-judicial acts, protected in India by the Judicial Officers Protection Act, 1850; parental and quasi-parental authority, much narrowed by Section 17 of the Right of Children to Free and Compulsory Education Act, 2009 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015; and de minimis non curat lex.

B. Defences which mitigate liability.

1. Contributory negligence. The plaintiff's failure to take reasonable care of his own safety, contributing to the damage.

3. Remoteness of damage. Damage of a kind not reasonably foreseeable is irrecoverable: The Wagon Mound (1961). Effect: limits the extent of liability without eliminating it.

A servant works under a contract of service and is subject to the employer's control as to the manner in which the work is done. An independent contractor works under a contract for services: he undertakes to produce a result, and how he achieves it is his own affair. As a rule an employer is not liable for the torts of an independent contractor.

The tests:

• The control test. Does the employer control not only what is done but how it is done? It works for manual labour and fails for skilled professionals, since a hospital cannot direct a surgeon how to operate.
• The organisation or integration test. Formulated by Denning LJ in Stevenson, Jordan and Harrison Ltd v Macdonald and Evans (1952): is the person's work an integral part of the business, or merely accessory to it? A ship's master, a chauffeur and a staff reporter are under a contract of service; a pilot bringing a ship into harbour, a taxi driver and a freelance contributor are under a contract for services.

• Casual delegation. An owner who asks another to drive his vehicle on his behalf and for his purposes is liable, the driver being treated as his agent: Ormrod v Crosville Motor Services (1953). Mere permission to use is not enough: Morgans v Launchbury (1973).

D. In the course of employment.

An act is in the course of employment if it is:

• an act expressly or impliedly authorised by the master; or
• an unauthorised mode of doing an act which is authorised; or
• an act necessarily incidental to something the servant is employed to do.

The law works by contrasts, and the following pairs should be learned together:

• Bayley v Manchester, Sheffield and Lincolnshire Railway (1873): a porter, wrongly believing a passenger to be on the wrong train, violently pulled him off. Liable: excessive and mistaken performance of an authorised act.
• Poland v Parr and Sons (1927): a carter struck a boy he believed to be stealing his employer's sugar. Liable: a servant has implied authority to protect his master's property, by reasonable means.
• Morris v C W Martin and Sons Ltd (1966): a mink stole sent for cleaning was stolen by the cleaner's employee. Liable: where goods are entrusted to the servant in the course of his employment and he steals them, the master answers.

The modern close connection test. Lister v Hesley Hall Ltd (2001) held a school liable for the sexual abuse of pupils by a warden, asking whether the wrongful conduct was so closely connected with the employment that it would be fair and just to hold the employer liable. That test supplements the old formulations and explains the cases of deliberate wrongdoing.

H. The State as master in India. Article 300 of the Constitution preserves the pre-Constitution position, so liability turns on the distinction between sovereign and non-sovereign functions drawn in Peninsular and Oriental Steam Navigation Co v Secretary of State for India (1861). State of Rajasthan v Vidhyawati (AIR 1962 SC 933) held the State liable for a government driver's negligence, the function being non-sovereign; Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh (AIR 1965 SC 1039) held it not liable where police negligently lost seized gold, treating the function as sovereign. Kasturi Lal has been steadily eroded, and in the constitutional tort line, Rudul Sah v State of Bihar (1983) 4 SCC 141 and Nilabati Behera v State of Orissa (1993) 2 SCC 746, the Supreme Court has awarded compensation for violation of Article 21 without regard to sovereign immunity.

Gloucester Grammar School Case (1410) YB 11 Hen IV of 47. The defendant, a schoolmaster, set up a rival school in the same town. Because of the competition the plaintiff's fees fell from 40 pence to 12 pence. The action failed: the defendant had done nothing unlawful, and damage caused by lawful competition is not actionable.

Mogul Steamship Co v McGregor, Gow and Co (1892) AC 25. A combination of shipowners drove the plaintiff out of the China tea trade by offering rebates and cutting freight rates. The House of Lords held there was no actionable wrong, because the means employed were lawful and the object was to advance the defendants' own trade.

Bradford Corporation v Pickles (1895) AC 587. The defendant sank a shaft on his own land, intercepting percolating underground water which fed the Corporation's works, maliciously, to force them to buy his land at his own price. Held not liable: an act which is lawful in itself does not become unlawful merely because the motive behind it is bad.

Chasemore v Richards (1859) and Acton v Blundell (1843): there is no right to percolating underground water flowing in undefined channels, so drawing it away is no wrong.

Ashby v White (1703) 2 Ld Raym 938. The defendant, a returning officer, wrongfully and maliciously refused to register the vote of the plaintiff, a qualified elector. The candidate the plaintiff wished to support was elected in any event, so he suffered no loss at all. Holt CJ held the action lay: if the plaintiff has a right he must of necessity have a means to vindicate it, and a remedy if he is injured in the exercise of it, for want of right and want of remedy are reciprocal. The case is also the foundation of the maxim ubi jus ibi remedium.

Bhim Singh v State of Jammu and Kashmir (1985) 4 SCC 677. A member of the Legislative Assembly was wrongfully arrested and detained, deliberately so as to prevent his attending the session, and was not produced before a Magistrate within the required time. Although he had been released by the time the case was decided, the Supreme Court awarded Rs. 50,000 as exemplary compensation for the violation of his rights under Articles 21 and 22(2).

Marzetti v Williams (1830): a banker holding sufficient funds of his customer refused to honour his cheque; held liable, although the customer proved no actual loss.

C. The differences.