BLS LLB 5 Years Sem 5 Torts 2024-25 - 75/25 Question Paper with Solutions

Accord and satisfaction is one of the modes by which tortious liability is discharged.

Accord is the agreement by which the person injured by a tort agrees to accept some consideration in place of his right of action. Satisfaction is the actual payment or performance of that consideration.

Both are required: an accord without satisfaction is no discharge, because the promise to accept does not extinguish the claim until what was promised has been given.

False imprisonment is the total restraint of a person's liberty, for however short a time, without lawful justification. It is one of the three forms of trespass to the person and is actionable per se, so no damage need be proved.

The restraint must be complete, with no reasonable means of escape: a partial obstruction is not enough, Bird v Jones (1845). The period is immaterial, and the plaintiff's knowledge of the restraint is not essential, Meering v Grahame-White Aviation Co (1919) and Murray v Ministry of Defence (1988).

Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. The word comes from the French nuire, to injure.

It is of two kinds. Public nuisance causes common injury, danger or annoyance to the public and is an offence under Section 268 of the Indian Penal Code; a private person may sue in tort only on proof of special damage. Private nuisance is interference with the land of a particular occupier and is actionable at his suit.

Section 2(11) of the Consumer Protection Act, 2019 defines "deficiency" as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force, or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service, and includes:

1. any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
2. deliberate withholding of relevant information by such person to the consumer.

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 price. Not liable: an act lawful in itself does not become unlawful because the motive is bad.

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

Ushaben v Bhagyalaxmi Chitra Mandir (AIR 1978 Guj 13): hurt to religious feelings by the screening of a film is not an actionable wrong.

Town Area Committee v Prabhu Dayal (AIR 1975 All 132): demolition of a building constructed without sanction founded no action.

The converse maxim: injuria sine damno, that is the infringement of a legal right without actual loss, which is actionable because the law presumes damage. Ashby v White (1703), where a returning officer wrongfully refused a qualified elector's vote although the candidate he supported won; Bhim Singh v State of Jammu and Kashmir (1985) 4 SCC 677, where Rs. 50,000 was awarded to an MLA wrongfully detained.

Two more authorities on the same maxim.

Rylands v Fletcher (1868) LR 3 HL 330 is the foundation of strict liability in the common law, that is liability without proof of fault.

Facts. The defendant, a mill owner, engaged independent contractors, who were competent engineers, to construct a reservoir on his land to supply water to his mill. In the course of the work the contractors came upon disused mine shafts filled with earth, which they did not block properly. Neither they nor the defendant knew that these shafts communicated with the workings of the plaintiff's coal mine on adjoining land. When the reservoir was filled, water escaped down the shafts and flooded the plaintiff's mine. The defendant himself had been guilty of no negligence, and was not liable for the contractors' negligence under the ordinary rules.

Held. The defendant was liable.

Blackburn J, in the Court of Exchequer Chamber, stated the rule:

2. Escape from a place in the defendant's occupation or control to a place outside it. Read v J Lyons and Co (1947): an inspector injured by a shell exploding inside the defendant's munitions factory failed, because there was no escape. This requirement has confined the rule most severely.
3. Non-natural use of land. Rickards v Lothian (1913): the ordinary domestic water supply to a lavatory is a natural use, so the defendant was not liable when a stranger blocked the waste pipe and caused a flood.

The five exceptions.

1. Plaintiff's own default, and damage due to the abnormal sensitivity of his property. Ponting v Noakes (1894).
2. Act of God. Nichols v Marsland (1876).
3. Consent of the plaintiff, covering the common benefit cases where the thing is kept for the benefit of both. Carstairs v Taylor (1871).
4. Act of a third party, that is the unforeseeable act of a stranger. Box v Jubb (1879); Rickards v Lothian (1913).
5. Statutory authority, subject to the terms of the enactment and the absence of negligence. Green v Chelsea Waterworks Co (1894).

Constitution: Section 165 of the Motor Vehicles Act, 1988. A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals for such area as may be specified, for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. A Tribunal may consist of one or more members, and a person is qualified for appointment only if he is or has been a Judge of a High Court, or is or has been a District Judge, or is qualified for appointment as a Judge of a High Court or as a District Judge.

Application for compensation: Section 166. An application may be made:

• by the person who has sustained the injury;
• by the owner of the property;
• where death has resulted, by all or any of the legal representatives of the deceased; or
• by any agent duly authorised by such person.

The award: Section 168. After giving the parties and the insurer an opportunity of being heard, the Tribunal makes an award determining the amount of compensation which appears to it to be just, and specifying the person or persons to whom it shall be paid. Section 170 allows the Tribunal, where it is satisfied that there is collusion between the claimant and the person against whom the claim is made, or that the latter has failed to contest, to permit the insurer to contest on all grounds.

No fault liability. Under the 1988 Act as originally enacted, Section 140 made the owner liable to pay a fixed sum on death or permanent disablement without proof of any wrongful act, neglect or default, and Section 163A provided compensation on a structured formula basis. The Motor Vehicles (Amendment) Act, 2019 replaced both with a new Section 164, under which compensation of Rs. 5 lakh is payable in the case of death and Rs. 2.5 lakh in the case of grievous hurt, and Section 164(2) provides in terms that the claimant shall not be required to plead or establish any wrongful act, neglect or default. Section 161 provides for hit and run compensation, now Rs. 2 lakh for death and Rs. 50,000 for grievous hurt.

Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or to make them shun or avoid him, or to expose him to hatred, contempt or ridicule, without lawful justification.

Defamation is classified in two ways: by the form of publication, and by the manner in which the defamatory meaning is conveyed.

A. Classification by form: libel and slander.

Libel is defamation in a permanent form addressed to the eye: writing, print, a picture, a caricature, a photograph, a statue, an effigy, a film or a broadcast.

Slander is defamation in a transient form addressed to the ear: spoken words or a gesture.

Innuendo is a secondary or latent meaning which words, innocent on their face, convey to persons who know extrinsic facts. To plead it, the plaintiff must prove the extrinsic facts and that the statement was published to persons who knew them.

Cassidy v Daily Mirror Newspapers (1929): a photograph of a man with a woman described as his fiancée defamed his actual wife, because those who knew her inferred she was not married to him. Tolley v J S Fry and Sons (1931): an amateur golfer depicted in a chocolate advertisement was defamed in the eyes of those who knew the rules of amateur status.

Modern pleading distinguishes the true or legal innuendo, which depends on extrinsic facts and must be specifically pleaded, from the false or popular innuendo, which is merely the inference any ordinary reader would draw and is part of the ordinary meaning.

C. Civil and criminal defamation. In India defamation is both a tort, redressed by damages and an injunction, and an offence under Sections 499 and 500 of the Indian Penal Code, whose validity was upheld in Subramanian Swamy v Union of India (2016) 7 SCC 221. Section 499 carries ten Exceptions, of which the First requires an imputation to be true and published for the public good, which is narrower than the civil defence of truth.

On filing a consumer complaint, the hospital took defence that since the Sonabai was operated free of cost, her complaint is not maintainable.

a. Whether Sonabai is consumer? Explain.

Yes. Sonabai is a consumer, and the hospital's defence fails.

The governing authority is Indian Medical Association v V P Shantha (1995) 6 SCC 651, in which a three judge Bench of the Supreme Court laid down four propositions:

1. Medical treatment is a "service" within the definition in the Consumer Protection Act, now Section 2(42) of the 2019 Act.

The hospital's defence would succeed only if it could show that it renders all its services free to everybody, which on these facts it plainly does not.

Even if the consumer route failed, she would not be without a remedy. A doctor's duty of care in tort has never depended on payment, and a suit for negligence would lie in the civil court, with the hospital vicariously liable for its surgeon. Section 100 of the 2019 Act preserves that remedy, the Act being in addition to and not in derogation of any other law.

On the merits she will succeed. Operating on the right eye, which had no issue, during a cataract operation on the left, and damaging it, is not an error of clinical judgment on which the law is protective of doctors; it is a failure of an elementary precaution, of the same class as leaving a swab inside a patient. The maxim res ipsa loquitur applies: the instrumentality was in the exclusive control of the surgeon and theatre staff, such things do not happen in the ordinary course if proper care is used, and the cause is unknown to an anaesthetised patient. The evidential burden shifts to the hospital. The Indian authority on facts of this class is Achutrao Haribhau Khodwa v State of Maharashtra (1996) 2 SCC 634, and on the standard of care Jacob Mathew v State of Punjab (2005) 6 SCC 1, applying Bolam.

2. A person who avails a service under a contract of personal service, that is where a master and servant relationship exists between him and the provider.
3. A person who obtains goods or services without consideration, since consideration paid or promised is an essential of the definition. A person who receives a gift from a stranger, with no approval of any buyer behind it, is not a consumer, although a user with the approval of the buyer is.
4. A beneficiary who used the goods or availed the service without the approval of the buyer, since the extension in the definition is conditional on that approval.

The facts of the case. Mrs Lloyd, a widow, owned two cottages and a mortgage. Dissatisfied with the income, she went to the office of Grace, Smith and Co, a firm of solicitors, and was attended by their managing clerk, who conducted the conveyancing department without supervision. He advised her to sell the cottages and call in the mortgage, and got her to sign two documents which she did not read and which he did not explain. They were conveyances of the property to himself. He then disposed of the property and absconded with the proceeds. She sued the firm.

Held. The House of Lords held the firm liable. Earl Loreburn and Lord Macnaghten laid down that a master is liable for the fraud of his servant committed in the course of his employment, and that it makes no difference that the servant acted for his own benefit and not for the benefit of his master. The earlier view, that a master answers only for frauds from which he himself benefits, was rejected.

The reasoning, applied to Anita's case:

1. Mr X was a servant. He was employed as a clerk by the firm and, as the problem says, most of the work of the firm was done by him, so he was integrated into the business and subject to its control.

Anita's remedies. Against the firm, damages in tort for deceit and for the conversion of her property, or restitution of the property if it can be traced; against Mr X personally, the same, though he has absconded; and against the firm additionally as partners, since under Section 26 of the Indian Partnership Act, 1932 the firm is liable for loss caused to a third party by the wrongful act of a partner acting in the ordinary course of the business, and under Section 27 for the misapplication of money received by the firm.

c. Is ABC and co liable? Explain.

Yes, and the liability is vicarious, resting on the two established conditions.

Condition 1: the relationship of master and servant. 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 and produces a result in his own way. Mr X was engaged as a clerk, on the firm's premises, doing the firm's work, and paid by it. On the control test, on the organisation or integration test from Stevenson, Jordan and Harrison Ltd v Macdonald and Evans (1952), and on the modern multiple test applied in India in Dharangadhara Chemical Works v State of Saurashtra (AIR 1957 SC 264), he is plainly a servant.

The firm's position afterwards. Having paid, the firm may claim an indemnity from Mr X, both as damages for breach of the implied contractual duty to serve with care and fidelity, Lister v Romford Ice and Cold Storage Co (1957), and as indemnity between wrongdoers, since the firm was not itself at fault, Khushro S Gandhi v N A Guzder (AIR 1970 SC 1468). In practice that right is worthless where the servant has absconded, which is precisely why vicarious liability exists.

The principle is res ipsa loquitur, the thing speaks for itself: a rule of evidence under which, in certain circumstances, the mere fact that the accident happened is evidence of negligence, so that the plaintiff need not prove any specific act of carelessness.

Its three conditions are satisfied here:

1. Exclusive control. The window, the premises and the barrel were in the exclusive control of Amar or of persons for whom he is responsible.
2. An accident which does not ordinarily happen without negligence. Barrels do not fall from second floor windows onto the street if those in charge take proper care.
3. The cause is unknown to the plaintiff. Mohan was walking on a public street and cannot know what happened inside the building; the facts lie within Amar's knowledge, not his.

The effect is that an inference of negligence arises and the evidential burden shifts to Amar to offer an explanation consistent with reasonable care. If he can show, for example, that a stranger over whom he had no control pushed the barrel out, or that the fall was caused by an event he could not have guarded against, he escapes. If he offers no explanation, Mohan succeeds.

2. Vicarious liability. If a servant handling the barrel in the course of his employment let it fall, Amar is liable for that servant's negligence on the maxim respondeat superior, the act being an unauthorised mode of doing an authorised act: Century Insurance Co v Northern Ireland Road Transport Board (1942).

What Amar must show to escape. The maxim raises an inference, not an irrebuttable presumption, so he may still succeed by proving the accident happened without negligence on his part. The available explanations are:

• Act of a stranger, that is a trespasser or a third party over whom he had no control, provided the act could not reasonably have been anticipated and guarded against;
• Inevitable accident, that is a failure which reasonable care and a proper system of inspection would not have revealed, Stanley v Powell (1891); or
• Act of God, if a natural event of extraordinary violence caused the fall, Nichols v Marsland (1876), which is fanciful on these facts.

Contributory negligence does not arise: Mohan was doing nothing more than walking along a public street and could not have guarded against a barrel falling from above.

1. It is an offence under the Railways Act, 1989. Section 67 provides that no person shall take with him on a railway any dangerous or offensive goods except in accordance with the conditions prescribed. Section 164 provides that if any person takes with him on a railway any dangerous or offensive goods in contravention of Section 67, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to one thousand rupees, or with both, and shall also be liable for loss, injury or damage which may be caused in consequence. Fireworks are explosives and are dangerous goods within the meaning of the section. Section 165 deals with the carriage of such goods with intent to cause damage, and Section 174 with obstruction of traffic.

The Explosives Act, 1884 and the rules made under it, and the Explosive Substances Act, 1908, apply in addition, as does Section 286 of the Indian Penal Code, negligent conduct with respect to explosive substances.

2. Rajesh's argument confuses crime with tort, and that confusion is the whole point of the question.

• under the rule in Rylands v Fletcher (1868), explosives being a classic dangerous thing; and
• under Section 164 of the Railways Act itself, which expressly makes him liable for loss, injury or damage caused, over and above the punishment.

The same act may be both a crime and a tort, and the two proceedings are independent: an acquittal in the criminal case does not bar the civil suit, because the standards of proof differ.

b. State the difference between the crime and tort.

2. Legal damage, that is injuria, the infringement of a legal right. In torts actionable per se the law presumes it.
3. A legal remedy, in the form of an action for unliquidated damages.

C. The nature of tortious liability.

The nature of the subject is best seen by distinguishing it from its neighbours.

Tort and contract. In tort the duty is fixed by law, is owed to persons generally and is therefore a right in rem; damages are always unliquidated; and no privity is required. In contract the duty is fixed by the parties, is owed only to the other party and is a right in personam; damages may be liquidated; and privity is essential. Donoghue v Stevenson (1932) shows why the difference matters: the consumer of the ginger beer had no contract with the manufacturer and would have had no remedy at all on a contractual analysis.

The two are not mutually exclusive. A surgeon who operates carelessly commits both, and the plaintiff may choose, the choice mattering for limitation, for remoteness and for whether exemption clauses apply.

Salmond's view: there is only a law of torts. The law knows a finite list of nominate torts, each with its own name and ingredients, arranged like pigeon-holes; harm which fits no pigeon-hole gives no remedy. Dr Jenks and Heuston supported him.

The evidence for Winfield is that new pigeon-holes have plainly been made: strict liability in Rylands v Fletcher (1868), intentional infliction of nervous shock in Wilkinson v Downton (1897), the manufacturer's duty in Donoghue v Stevenson (1932), negligent misstatement in Hedley Byrne v Heller (1964), and in India absolute liability in M C Mehta v Union of India (1987) and the constitutional tort from Rudul Sah v State of Bihar (1983).

The evidence for Salmond is that no litigant ever pleads "a tort" in the abstract; he pleads a named tort and must prove its ingredients.

The reconciliation, associated with Glanville Williams, is that the two describe the same law at different levels of abstraction: Salmond describes it as it stands at any moment, Winfield describes its capacity for growth. The categories of tort are never closed, but a plaintiff must still bring his case within a recognised cause of action.

E. The objects of the law of torts.

The law of torts in India is largely uncodified and is judge-made, received as the English common law so far as it is consistent with justice, equity and good conscience and adapted to Indian conditions. That reception is not mechanical: in M C Mehta the Supreme Court said expressly that it was not bound to follow a rule evolved in nineteenth century England and was free to develop principles suited to a developing country.

Substantial parts have been taken over by statute: the Motor Vehicles Act, 1988, the Consumer Protection Act, 2019, the Public Liability Insurance Act, 1991, the Workmen's Compensation Act, 1923 now the Employee's Compensation Act, the Fatal Accidents Act, 1855 and the Environment (Protection) Act, 1986. And the constitutional tort, the award of compensation in writ jurisdiction for violation of fundamental rights, is a wholly Indian development.

• (ii) falsely represents that services are of a particular standard, quality or grade;
• (iii) falsely represents any rebuilt, second-hand, renovated, reconditioned or old goods as new;
• (iv) represents that goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which they do not have;
• (v) represents that the seller or supplier has a sponsorship, approval or affiliation which he does not have;
• (vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
• (vii) gives to the public a warranty or guarantee of the performance, efficacy or length of life of a product or service not based on an adequate or proper test, the burden of proving that the test was adequate lying on the person raising the defence;
• (viii) makes to the public a representation purporting to be a warranty or guarantee, or a promise to replace, maintain or repair, where there is no reasonable prospect of it being carried out;

Society of Catalysts v Star Plus TV (2008) is the leading Indian decision: a television contest whose prize money came out of premium SMS charges was held an unfair trade practice, because the viewers were in truth paying for a prize advertised as free.

4. Withholding from participants of a scheme offering gifts or prizes information about the final results of the scheme.

5. Permitting the sale or supply of goods intended to be used by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by a competent authority relating to performance, composition, contents, design, construction, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods.

6. Permitting the hoarding or destruction of goods, or refusing to sell the goods or to make them available for sale, or to provide any service, if such conduct is intended to raise the cost of those or similar goods or services.

7. Manufacturing spurious goods, or offering such goods for sale, or adopting deceptive practices in the provision of services. "Spurious goods" are defined in Section 2(43) as goods which are falsely claimed to be genuine.

Before the Central Consumer Protection Authority. Under Sections 19 to 21 the CCPA may inquire on its own motion, order recall of unsafe goods and reimbursement of the price, order discontinuance of the practice, and impose a penalty up to Rs. 10 lakh on a manufacturer or endorser for a misleading advertisement, rising to Rs. 50 lakh for repeat contraventions, and prohibit an endorser for one year, extending to three years. An endorser is not liable if he exercised due diligence to verify the claims.

Criminal. Section 89 punishes a manufacturer or service provider who causes a false or misleading advertisement with imprisonment up to two years and fine up to Rs. 10 lakh, and for a subsequent offence up to five years and Rs. 50 lakh. Sections 90 and 91 punish adulterated and spurious goods, extending to imprisonment for life where death results.

D. Guidelines. The Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2022 restrict surrogate advertising, bait advertising and advertisements directed at children, and set out the due diligence expected of an endorser, including that he must have actually used the product.

Lord Ellenborough CJ stated the rule: "one person being in fault will not dispense with another's using ordinary care for himself", and two things must concur to support the action, an obstruction laid by the defendant and the want of ordinary care to avoid it on the part of the plaintiff.

The rule was harsh, because it made the plaintiff's smallest carelessness a complete answer to the defendant's gross negligence, and the whole loss then fell on the more seriously injured party.

2. The judicial correction: the last opportunity rule.

Davies v Mann (1842) 10 M and W 546. The plaintiff negligently left his donkey fettered by the forefeet on a highway. The defendant drove his wagon and horses at a smart pace down a slight descent and ran into it, killing it. The defendant was held liable, because although the plaintiff was negligent in leaving the donkey there, the defendant had the last opportunity of avoiding the accident by the exercise of ordinary care.

4. The position in India.

India has no general statute to the same effect. The Kerala Torts (Miscellaneous Provisions) Act, 1976 applies apportionment locally. Elsewhere the courts have simply adopted apportionment as a rule of justice, equity and good conscience.

Municipal Corporation of Greater Bombay v Laxman Iyer (2003) 8 SCC 731 is the modern statement: where both parties are at fault, the loss is apportioned according to the degree of responsibility, and the last opportunity rule survives only as one way of deciding whose negligence was the effective cause of the accident. Earlier, Vidya Devi v M P State Road Transport Corporation (AIR 1975 MP 89) and Municipal Corporation of Delhi v Subhagwanti (AIR 1966 SC 1750) are also cited.

In motor accident claims the no fault provisions apply independently: Section 164 of the Motor Vehicles Act, 1988, as substituted in 2019, gives Rs. 5 lakh for death and Rs. 2.5 lakh for grievous hurt without any plea or proof of fault.

5. The burden of proof.

2. Rescuers. A person injured while attempting a rescue made necessary by the defendant's negligence is met neither by contributory negligence nor by volenti, because danger invites rescue.

Haynes v Harwood (1935): a policeman was injured stopping a bolting horse in a crowded street, the horse having bolted because the defendant's servant left it unattended. He recovered in full. Wagner v International Railway (1921), where Cardozo J said that "danger invites rescue", and Baker v T E Hopkins and Son Ltd (1959), the doctor who went down a well to rescue workmen overcome by fumes, are to the same effect.

3. Children. A child is judged by the standard of a child of that age, intelligence and experience, not of an adult.

Yachuk v Oliver Blais Co Ltd (1949): petrol was sold to a boy of nine who said he needed it for his mother's car; he used it in a game and was badly burned. The sellers were liable, because a child of that age could not appreciate the danger. Very young children are treated as incapable of contributory negligence altogether.

Even where the plaintiff proves every ingredient of a tort, the defendant may escape liability by establishing a general defence, that is one available across the law of torts rather than peculiar to a single tort.

1. Volenti non fit injuria (consent). No injury is done to one who is willing. Where the plaintiff has freely and voluntarily, with full knowledge of the nature and extent of the risk, agreed to run it, no action lies.

Two elements: knowledge and consent. Mere knowledge is not enough, and scienti non fit injuria is not the law. Smith v Baker (1891): a workman who knew stones were being swung over his head and worked on had not consented, because a man under economic compulsion is not a volunteer. Hall v Brooklands Auto Racing Club (1933): a spectator at a motor race had accepted the inherent risks. Padmavati v Dugganaika (1975 ACJ 222) in India.

4. Act of God (vis major). An operation of natural forces without human intervention, so extraordinary that no human foresight could reasonably anticipate it and no reasonable care could provide against 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. Unlike inevitable accident, act of God is an exception to Rylands v Fletcher.

5. Private defence. A person may use reasonable and proportionate force to defend his own person or property, or that of another. The force must match the threat: setting a spring gun without notice is not private defence, and shooting a boy scrumping apples is not.

6. Mistake. As a general rule mistake, of fact or of law, is no defence in tort: a person who enters land honestly believing it his own is still a trespasser. The exceptions are torts in which the defendant's state of mind is an ingredient, notably malicious prosecution and deceit, and the defence of qualified privilege in defamation, where honest belief negatives malice.

9. Judicial and quasi-judicial acts. A judge is not liable for acts done in the discharge of his judicial function, however erroneous, a protection given in India by the Judicial Officers Protection Act, 1850, and extended to persons exercising quasi-judicial powers in good faith.

10. Parental and quasi-parental authority. A parent, and a person in loco parentis such as a schoolmaster, may impose reasonable correction and restraint. The defence has been much narrowed in India by Section 17 of the Right of Children to Free and Compulsory Education Act, 2009, which prohibits physical punishment and mental harassment, and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

11. Acts causing slight harm: de minimis non curat lex. The law does not concern itself with trifles.

A partial defence: contributory negligence. The plaintiff's own want of care no longer defeats the claim but reduces the damages in proportion to his share of responsibility: the Law Reform (Contributory Negligence) Act, 1945 in England, and in India Municipal Corporation of Greater Bombay v Laxman Iyer (2003) 8 SCC 731.

Its three essentials were a dangerous thing, an escape and a non-natural use; and it was subject to five exceptions: plaintiff's own default, act of God, consent of the plaintiff, act of a stranger and statutory authority.

Those exceptions, with the narrow reading of "escape" in Read v J Lyons and Co (1947) and the generous reading of "natural use" in Rickards v Lothian (1913), had very nearly swallowed the rule. A liability defeated by an act of God, by the act of any stranger and by statutory authority is not, in practice, liability without fault at all.

C. M C Mehta v Union of India (1987) 1 SCC 395.

Facts. In December 1985, within a year of the Bhopal gas disaster, oleum gas escaped from a plant of Shriram Foods and Fertiliser Industries, a unit of Delhi Cloth Mills, situated in a densely populated part of Delhi. Several persons were affected and an advocate practising in the Tis Hazari courts died. A second leak followed two days later. The matter came before a Constitution Bench of five judges on a public interest petition under Article 32, brought by M C Mehta, which had originally sought closure and relocation of the plant.

D. The rationale: the reasons the Court gave and the reasons behind them.

1. The enterprise alone can know and control the risk. The Court said the enterprise alone has the resource to discover and guard against hazards and dangers, and to provide warning against potential hazards. A person living near a chemical plant knows nothing of what is stored, how it is handled, or what the maintenance schedule is.

2. The duty is absolute and non-delegable. An enterprise which carries on a hazardous activity for private profit owes an absolute and non-delegable duty to the community to ensure that no harm results. It cannot discharge that duty by delegating the work, nor by proving that it took care.

3. Difficulty of proof. In an industrial accident the victim can prove nothing about what happened inside the plant. Requiring proof of negligence, or allowing a defence of sabotage or of an act of God, would mean in practice that the loss lies where it falls: on the person least able to bear it and least able to prevent it.

4. He who creates the risk for his own benefit should bear its cost. The activity is carried on for profit, and the cost of the harm it causes is properly a cost of that activity, not a burden on the neighbourhood.

F. The later development.

• Union Carbide Corporation v Union of India (1989 and 1991), the Bhopal litigation, and the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, by which the Union took over the victims' claims as parens patriae.
• Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212, the Bichhri case, which applied absolute liability to chemical units that had poisoned groundwater and adopted the polluter pays principle, holding the polluter liable both to compensate the victims and to meet the cost of restoring the environment.
• Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647, which read the precautionary principle and the polluter pays principle into Indian law as part of Articles 21, 47, 48A and 51A(g).