BLS LLB 5 Years Sem 5 Torts 2025-26 - 75/25 Question Paper with Solutions

A tort is a civil wrong, other than a breach of contract or a breach of trust, for which the remedy is a common law action for unliquidated damages. The word comes from the Latin tortum, twisted or crooked, through the French tort, a wrong. This is Salmond's definition.

Winfield's definition is fuller: "Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages."

Section 2(m) of the Limitation Act, 1963 adopts the shorter formulation.

Battery is the intentional and direct application of force to the person of another without lawful justification. Its essentials are the use of force, however trivial; applied directly to the plaintiff's body; intentionally; and without consent or lawful excuse.

No harm need result, and battery is actionable per se. Cole v Turner (1704): the least touching of another in anger is a battery.

The scienter rule fixes the liability of the keeper of an animal for damage done by it, and turns on his knowledge of the animal's dangerous disposition; scienter means "knowingly".

Animals are divided into two classes. For ferae naturae, a naturally dangerous species such as a lion, tiger, elephant, bear or monkey, knowledge of the vicious propensity is conclusively presumed and the keeper is strictly liable. For mansuetae naturae, a harmless domestic species such as a dog, horse or cow, the keeper is liable only if the plaintiff proves he knew of the vicious propensity of that particular animal.

Section 42 of the Consumer Protection Act, 2019 provides that the State Government shall, by notification, establish a State Consumer Disputes Redressal Commission, to be known as the State Commission.

Section 42(2): the State Commission shall consist of a President and not less than four or such higher number of members as may be prescribed in consultation with the Central Government.

Section 43 provides that the Central Government may, by rules, prescribe the qualifications, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members. Under the 1986 Act, Section 16, the President had to be a person who is or has been a Judge of a High Court, appointed in consultation with the Chief Justice of the High Court, with not less than two members, one of whom shall be a woman.

2. A mere non-feasance, that is an omission, does not make a person a trespasser ab initio. Only a misfeasance, a positive wrongful act, has that effect. Since refusing to pay is an omission, the carpenters' original entry remained lawful.

The requirements of the doctrine are therefore an entry under authority of law, a subsequent abuse of that authority, and that the abuse be a positive act and not a mere omission.

Illustrations of its application. A police officer entering under a warrant who then ransacks the house; a customs officer entering to inspect who steals goods; a distrainor entering to distrain who uses the goods distrained; and an innkeeper's guest who commits a positive wrong on the premises.

The modern limit. Elias v Pasmore (1934) 2 KB 164: police entered premises lawfully in order to arrest a man and seized documents, some lawfully and some unlawfully. They were held trespassers only as to the unlawful seizure, and not ab initio in respect of the entry. The doctrine has been criticised as an unnecessary fiction and is now applied narrowly.

Constitution: Section 165 of the Motor Vehicles Act, 1988. A State Government may, by notification, 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 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 a District Judge.

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. Section 170 allows the Tribunal, where there is collusion or where the person against whom the claim is made fails to contest, to permit the insurer to contest on all grounds. Section 171 allows an award of simple interest from the date of the application.

No fault liability. The 1988 Act as enacted provided for it in Section 140, with structured compensation under Section 163A. The 2019 Amendment replaced both with Section 164, under which Rs. 5 lakh is payable in the case of death and Rs. 2.5 lakh in the case of grievous hurt, the claimant not being required to plead or establish any wrongful act, neglect or default. Section 161 provides hit and run compensation of Rs. 2 lakh for death and Rs. 50,000 for grievous hurt, and Section 164B creates a Motor Vehicle Accident Fund.

Bar of civil jurisdiction: Section 175. Where a Tribunal has been constituted for an area, no civil court has jurisdiction to entertain any question relating to a claim which the Tribunal may adjudicate, and no injunction may be granted.

Absolute liability is liability without fault and without exception: an enterprise carrying on a hazardous or inherently dangerous activity is liable to compensate everyone harmed by an accident in the operation of that activity, and none of the exceptions which qualify strict liability is available to it. It was laid down in 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 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 on a public interest petition under Article 32.

Held. Bhagwati CJ held that the Court was not bound to follow the nineteenth century rule in Rylands v Fletcher, which had evolved in a different social and economic context, and that Indian law must evolve new principles adequate to the problems of a highly industrialised economy. He laid down:

Later development. Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212, the Bichhri case, applied absolute liability to chemical units that had poisoned groundwater and adopted the polluter pays principle; Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647 read the precautionary principle into Indian law. The statutory expressions are the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, the Public Liability Insurance Act, 1991 and Section 17 of the National Green Tribunal Act, 2010.

2. Waiver. Where the plaintiff has alternative remedies he must elect, and by electing one he abandons the other. Where the tort has produced a gain to the wrongdoer, he may waive the tort and sue in quasi-contract for money had and received.

3. Accord and satisfaction. Accord is the agreement to accept some consideration in place of the right of action; satisfaction is the actual payment or performance of it. Accord without satisfaction discharges nothing, and the accord must be free of fraud, coercion and undue influence.

4. Release. The giving up of the right of action by the injured party's own act. In India Section 63 of the Indian Contract Act, 1872 allows a promisee to dispense with or remit performance, so a release without consideration is effective.

5. Acquiescence. Where a person entitled to enforce a right stands by and allows another to act inconsistently with it, without objection and in circumstances in which he could and should have objected, he may be precluded from enforcing it. It generally bars the equitable remedy of injunction rather than extinguishing the right, and is closely connected with laches.

1. An unreasonable interference. Ringing a bell at all hours of the day and night, in a residential setting, goes far beyond the give and take that neighbours owe one another. Noise at night is the standard case of an unreasonable interference, because it deprives the occupier of sleep.
2. With the use or enjoyment of land. X is the occupier of the adjoining house and it is his comfort and convenience in occupying it which is interfered with.
3. Damage, which here takes the form of substantial discomfort and inconvenience rather than physical injury to the property. That is a recognised head of damage in nuisance.

The factors which make the interference unreasonable:

• Nature of the harm. St Helen's Smelting Co v Tipping (1865) distinguishes material injury to property, for which the locality is no defence, from personal discomfort, for which locality is relevant. This is a case of personal discomfort, so the character of the neighbourhood matters, and in a residential area the standard of comfort an occupier may expect is high.
• Duration and continuity. The ringing is continuous and repeated, not an isolated act, which is exactly what nuisance requires.

An injunction is the appropriate remedy because the interference is continuing and damages would be inadequate: X wants the ringing stopped, not priced. It is granted under Sections 37 to 39 of the Specific Relief Act, 1963, with a temporary injunction meanwhile under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908.

The court will ordinarily grant a qualified injunction rather than an absolute one, restraining the ringing at specified hours, typically at night and in the early morning, rather than prohibiting it altogether. That reflects the discretionary character of the remedy and the need to balance X's comfort against the chapel's legitimate activity. In Soltau v De Held itself the injunction restrained ringing so as to occasion a nuisance.

The court weighs the prima facie case, the balance of convenience and irreparable injury, and under Section 41 of the Specific Relief Act may refuse an injunction where the injury is trifling and can be compensated in money, awarding damages in lieu.

2. Damages for the discomfort and inconvenience suffered, and for any consequential loss such as the cost of alternative accommodation or of soundproofing.

5. Complaint under the Noise Pollution (Regulation and Control) Rules, 2000, made under the Environment (Protection) Act, 1986. The Rules prescribe ambient noise standards by zone, and Rule 5 restricts the use of loudspeakers and public address systems, prohibiting their use at night between 10 pm and 6 am except in specified circumstances. The Supreme Court in Church of God (Full Gospel) in India v K K R Majestic Colony Welfare Association (2000) 7 SCC 282 held that no religion prescribes that prayers should be performed by disturbing the peace of others, nor that they should be through amplifiers or beating of drums, and that a person can be restrained from creating noise pollution even in the exercise of a religious practice. In re Noise Pollution (2005) 5 SCC 733 laid down detailed directions.

1. The prize was not free at all. The scheme was presented as offering a prize for nothing, when in truth the viewers collectively paid for it through the premium charged on every message. The channel gave away with one hand what it had already collected with the other, and retained the surplus.

2. That falls squarely within the statutory definition. Section 2(47) of the Consumer Protection Act, 2019 makes it an unfair trade practice, for the purpose of promoting the sale, use or supply of any goods or the provision of any service, to permit:

• the offering of gifts, prizes or other items with the intention of not providing them as offered, or creating the impression that something is being given free of charge when it is fully or partly covered by the amount charged in the transaction as a whole; and
• the conduct of any contest, lottery, game of chance or skill for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or business interest.

The second limb of the first clause is the operative one and should be quoted: the impression that something is free when it is covered by the amount charged in the transaction as a whole.

b. Will Kavita succeed? Why?

Yes, though what she recovers requires care.

Her complaint is maintainable. She is a consumer; the wrong is an unfair trade practice, which is a ground of complaint under Section 2(6)(i) and which, importantly, requires no proof of a defect in goods or a deficiency in service. The wrong is the method of promotion itself.

What she may obtain, under Section 39:

1. an order that Moon TV discontinue the unfair trade practice and not repeat it;
2. an order to cease and desist from the misleading advertisement, and to issue a corrective advertisement at its own cost;
3. refund of the charges she paid;
4. compensation for the loss or injury suffered, and punitive damages under Section 39(1)(d) where the conduct is contumacious; and
5. costs.

Two practical qualifications, which a good answer states honestly.

Where she files. The District Commission where she resides or personally works for gain, under Section 34(2)(d), within two years under Section 69.

2. A infringed that right. As Returning Officer he was under a duty to receive and register the vote of a qualified elector, and he refused to do so.
3. The absence of loss is irrelevant. B suffered nothing, since the candidate he wished to support was elected anyway. But where a legal right is violated the law presumes damage, and the plaintiff need prove none. Torts of this class are actionable per se, alongside trespass, libel, assault and false imprisonment.

Holt CJ's reasoning should be given: 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; want of right and want of remedy are reciprocal; and it is a vain thing to imagine a right without a remedy. The maxim is ubi jus ibi remedium.

Malice is not the ground of liability, and this should be stated plainly. The action lies because a right was infringed, whether the refusal was malicious or merely wrong. Malice matters only to the quantum, since it will support aggravated and possibly exemplary damages.

2. A declaration that the refusal was unlawful.

3. In India, additional and more practical remedies:

• a writ petition under Article 226 against the Returning Officer for breach of a public duty, or a writ of mandamus to compel its performance, though it would be infructuous once the poll has closed;
• an election petition under Part VI of the Representation of the People Act, 1951, which is the exclusive route for questioning an election. On these facts the result was unaffected, so the election would not be set aside, since Section 100(1)(d)(iii) requires the improper reception, refusal or rejection of a vote to have materially affected the result; and
• criminal and departmental consequences: under Section 32 of the Representation of the People Act, 1951 an election officer who wilfully fails to discharge his official duty is punishable, and he would face departmental proceedings.

A's defences, and why they fail:

• That no loss was suffered. This is the very argument rejected in Ashby v White, and it is why the case is famous.

a. What is the remedy available to Mrs Asha? Why?

She has three concurrent remedies, and may choose among them.

1. A suit in tort for negligence against the manufacturer.

The principle is Donoghue v Stevenson [1932] AC 562: a manufacturer of products which he sells in a form showing that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, owes that consumer a duty to take reasonable care. The duty arises in tort and is independent of any contract, which is why Mrs Asha may sue although she bought from the cafe and not from the manufacturer.

This is the strongest route where harm has been suffered. A claim lies against the product manufacturer, and under Section 84 he is liable where the product contains a manufacturing defect, deviates from manufacturing specifications, or does not conform to an express warranty; Section 84(2) makes him liable on an express warranty even if he proves he was not negligent or fraudulent. Section 86 deals with the liability of a product seller, so the cafe is also answerable in the circumstances there specified.

Against the cafe she has, in addition, a claim for deficiency in service under Section 2(11), and a claim in contract on the implied conditions of merchantable quality and fitness for purpose in Sections 16(1) and 16(2) of the Sale of Goods Act, 1930.

Also attracted: the Food Safety and Standards Act, 2006, under which a bottle containing a decomposed snail is unsafe food within Section 3(1)(zz), with penalties under Sections 50 to 59, and a complaint lies to the Food Safety Officer.

Section 100 of the 2019 Act preserves all of these, the Act being in addition to and not in derogation of any other law.

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

The narrower rule of the case, which is the one that applies here, has three limbs: the manufacturer must sell the product in a form showing that he intends it to reach the ultimate consumer in the form in which it left him; there must be no reasonable possibility of intermediate examination; and he must know that the absence of reasonable care will result in injury to the consumer's life or property.

The sealed opaque bottle is what satisfies the second limb, and it was decisive. Had the container been transparent, or had the retailer been expected to open and inspect it, the chain would have been broken.

A. Definition.

Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid him, or which exposes him to hatred, contempt or ridicule, without lawful justification. The interest protected is reputation, that is what others think of the plaintiff, and not his own feelings, so a statement which merely insults him in private is not defamation.

B. The three essentials.

1. The statement must be defamatory. The test is objective, judged by right-thinking members of society generally, and not by the plaintiff's sensitivity, by the standards of a section of society, or by the defendant's intention. Mere abuse or vulgar insult is not defamation if it lowers nobody's opinion of the plaintiff.

It is actionable per se, that is without proof of special damage, because the law presumes damage. In English law it is also a crime.

D. Slander.

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

In English law slander is actionable only on proof of special damage, except in four cases, in which it is actionable per se:

1. an imputation of a criminal offence punishable with imprisonment;
2. an imputation of a contagious or infectious disease such as would cause others to shun the plaintiff, for example leprosy or a venereal disease;
3. an imputation of unchastity or adultery to a woman or girl, under the Slander of Women Act, 1891; and
4. an imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade or business carried on by the plaintiff.

E. Libel and slander distinguished.

Under Section 499 of the Indian Penal Code both forms are equally the offence of defamation, punishable under Section 500, and 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.

D P Choudhary v Manjulata is worth citing for a second reason: a newspaper falsely reported that a young unmarried woman had eloped, and the Rajasthan High Court awarded Rs. 10,000 as general damages, holding the publication actionable per se and observing that the imputation was of a kind that would ruin her prospects of marriage.

G. The defences.

1. Justification or truth. A complete defence in civil law, however malicious the motive. The defendant must prove the substantial truth of the sting of the charge, not the literal accuracy of every detail. Note the burden: falsity is presumed, so the defendant must prove truth.
2. Fair comment. A comment, that is an expression of opinion and not an assertion of fact, made honestly and fairly, on a matter of public interest, on facts truly stated or sufficiently indicated, and without malice.

The Consumer Protection Act, 2019 retains and restructures the three-tier machinery: the District Commission, the State Commission and the National Commission, with a further appeal to the Supreme Court.

1. District Consumer Disputes Redressal Commission (Sections 28 to 41).

Establishment, Section 28. The State Government shall, by notification, establish a District Commission in each district, and may establish more than one in a district.

Composition, Section 29. A President and not less than two members as may be prescribed by the Central Government; qualifications, method of recruitment, procedure of appointment, term of office, resignation and removal are prescribed under Section 30. Under the 1986 Act the President had to be qualified to be a District Judge, with two members, one of whom shall be a woman.

Pecuniary jurisdiction, Section 34(1). Where the value of the goods or services paid as consideration does not exceed the prescribed amount, which after the notification of December 2021 is Rs. 50 lakh.

Establishment, Section 42. By the State Government. Composition: a President and not less than four or such higher number of members as may be prescribed in consultation with the Central Government. Under the 1986 Act the President had to be a Judge or former Judge of a High Court.

Jurisdiction, Section 47. Original, above Rs. 50 lakh and up to Rs. 2 crore; unfair contracts, up to Rs. 10 crore; appellate, over the District Commissions in the State; revisional, where a District Commission has exercised a jurisdiction not vested in it, failed to exercise one so vested, or acted illegally or with material irregularity.

Section 48, power to transfer a case within the State; Section 49(2), power to declare an unfair contract term void; Section 50, review for an error apparent on the face of the record.

Appeal, Section 51. To the National Commission within thirty days from an order in original jurisdiction, on deposit of fifty per cent. The proviso limits an appeal from an order in appellate jurisdiction to a question of law.

3. National Consumer Disputes Redressal Commission (Sections 53 to 67).

• Grounds of complaint, Section 2(6): unfair contract, unfair or restrictive trade practice, defect in goods, deficiency in services, charging a price in excess, hazardous goods or services, and a product liability action.
• Reliefs, Section 39: removal of the defect, replacement, return of the price, compensation including punitive damages, removal of the deficiency, discontinuance of an unfair or restrictive trade practice, cessation of a misleading advertisement, withdrawal of hazardous goods, a corrective advertisement, payment to the Consumer Welfare Fund where the loss is suffered by a large number of consumers not readily identifiable, and costs.
• Mediation, Section 37 and Chapter V (Sections 74 to 81): reference at the first hearing or later, with the parties' written consent; a settlement so recorded is not appealable.
• Limitation, Section 69: two years, extendable for sufficient cause with reasons recorded.
• Enforcement, Section 71: enforceable as a decree of a civil court, with a certificate of recovery to the Collector for recovery as arrears of land revenue.
• Penalty, Section 72: imprisonment of one month to three years, or fine of Rs. 25,000 to Rs. 1 lakh, or both.

Limits. Consent obtained by fraud is no consent (Hegarty v Shine, 1878); consent under legal or moral compulsion is no consent, so a rescuer is not met by the defence (Haynes v Harwood, 1935); volenti is no answer to a breach of statutory duty (Wheeler v New Merton Board Mills, 1933); and a spectator accepts inherent risks but not a reckless disregard of his safety (Wooldridge v Sumner, 1963).

2. Plaintiff the wrongdoer: ex turpi causa non oritur actio. No action arises from a base cause. The defence is narrow: the illegality must be connected with the harm. Bird v Holbrook (1828): a trespasser injured by a spring gun set without notice recovered damages.

3. Inevitable accident. An accident which could not have been avoided by ordinary care, caution and skill. Stanley v Powell (1891), the pellet glancing off a tree and striking a beater; Brown v Kendall (1850), the man separating fighting dogs; Assam State Cooperative Marketing Federation v Anubha Sinha (AIR 2001 Gau 18). It is no defence to strict liability.

7. Necessity. An act causing damage but done to prevent a greater harm is not actionable. Throwing cargo overboard to save a ship, pulling down a house to arrest a fire, and operating on an unconscious patient are the standard instances; the maxim is salus populi suprema lex. Cope v Sharpe (1912): a gamekeeper who burned strips of heather to stop a fire spreading was not liable in trespass. Leigh v Gladstone (1909). Distinguish private defence, where the plaintiff is the source of the danger, and inevitable accident, where the harm was not intended.

8. Statutory authority. Where a statute authorises the very act complained of, the defendant is not liable, provided he acts without negligence and the damage is the inevitable consequence of what was authorised. The authority may be absolute, where the act must be done, or conditional, where it may be done only if it can be done without infringing private rights. Vaughan v Taff Vale Railway (1860), sparks from an authorised railway; Hammersmith Railway v Brand (1869), vibrations; against Metropolitan Asylum District v Hill (1881), where a smallpox hospital set up under a permissive power was restrained as a nuisance.

A. The problem.

Every wrongful act sets off a chain of consequences which in theory never ends. If a defendant were liable for all of them, liability would be indeterminate. The law therefore draws a line: he answers for consequences which are proximate and not for those which are too remote.

Remoteness arises only after liability is established. It is not about whether the defendant was at fault, but about how far his responsibility extends.

B. The first test: directness. Re Polemis (1921).

In re Polemis and Furness, Withy and Co [1921] 3 KB 560 held that once a defendant is shown to be negligent, he is liable for all the direct consequences of his act, however unforeseeable.

Facts. The appellants' ship, the Wagon Mound, was taking on furnace oil in Sydney Harbour. Through the carelessness of their servants a large quantity was spilled and 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 continue with precautions. Two days later molten metal fell on cotton waste floating on the oil, which acted as a wick, ignited the oil, and the wharf and the ship were destroyed.

Held. The appellants were not liable for the fire damage. Damage by fouling of the slipways was foreseeable; damage by fire was not. Viscount Simonds held that it is the foresight of the reasonable man which alone can determine responsibility, and that it does not accord with current ideas of justice or morality that a man should be liable for all the consequences of a negligent act however unforeseeable and however grave.

D. The qualification: The Wagon Mound (No. 2) (1967).

F. The eggshell skull rule survives.

Once damage 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, decided after Wagon Mound: a galvaniser was burned on the lip by molten metal through a negligent failure to protect him; the burn caused a pre-malignant condition to become cancerous and he died. The employers were liable for the death. 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."

G. Intervening cause: novus actus interveniens.

The chain may be broken by a new and independent act. A free, deliberate and informed act of a third party, or of the plaintiff, generally breaks it. But it does not where the defendant's duty was precisely to guard against that act: Stansbie v Troman (1948), the decorator who left the house unlocked and was liable for the theft that followed, and Home Office v Dorset Yacht Co (1970), where borstal officers negligently allowed boys in their charge to escape and were liable for the damage they did.

A. The principle.

Vicarious liability is the liability of one person for the tort of another, arising not from anything the first person did but from the relationship between them. It rests on two maxims: respondeat superior, let the superior answer, and qui facit per alium facit per se, he who acts through another acts himself.

The liability is joint and several: the wrongdoer remains personally liable, and the plaintiff may sue either or both, though he may have only one satisfaction.

B. The three relationships in which it arises.

1. Master and servant, which is the principal case;
2. Principal and agent, where the principal is liable for torts committed by the agent within the scope of his authority; and
3. Ratification, where a person adopts and confirms an act done on his behalf without authority, the act relating back as if authorised: Wilson v Tumman (1843); Keighley, Maxsted and Co v Durant (1901).

• The organisation or integration test, formulated by Denning LJ in Stevenson, Jordan and Harrison Ltd v Macdonald and Evans (1952): is the 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.
• The multiple or composite test, from Ready Mixed Concrete v Minister of Pensions (1968), weighing all the indicia: power of selection and dismissal, payment of wages, deduction of tax and provident fund, provision of tools, degree of control, who bears the risk of profit and loss, and whether the person works exclusively for the employer.
• Indian authority: Dharangadhara Chemical Works v State of Saurashtra (AIR 1957 SC 264), holding that the prima facie test is the right of control, but that all the features of the relationship must be considered.

Two special cases:

• Lent or hired servant: the presumption is that the general employer remains liable, and the burden of shifting it is heavy: Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd (1947), where a crane driver was lent with his crane.

• Century Insurance Co v Northern Ireland Road Transport Board (1942): a petrol lorry driver lit a cigarette and threw the match away while transferring petrol, causing an explosion. Liable: he was doing his job carelessly.
• Storey v Ashton (1869): a carman, his round finished, drove off on a private errand and injured the plaintiff. Not liable: a frolic of his own. Contrast a mere deviation from the route.
• Lloyd v Grace, Smith and Co (1912): a solicitor's managing clerk fraudulently induced a client to convey property to him. Firm liable, although he acted for his own benefit, because the fraud was committed in the very class of work he was employed to do.
• Bayley v Manchester, Sheffield and Lincolnshire Railway (1873): a porter violently pulled a passenger off a train, wrongly believing him to be on the wrong one. Liable: excessive and mistaken performance of an authorised act.

G. Independent contractors: the exceptions. An employer is liable where he authorises or ratifies the wrongful act; where he was negligent in selecting the contractor; where the duty is non-delegable, which covers statutory duties, work on or near a highway (Tarry v Ashton, 1876; Penny v Wimbledon Urban District Council, 1899), the withdrawal of support from a neighbour's land (Bower v Peate, 1876) and the duties of an occupier; where the work is extra-hazardous (Honeywill and Stein v Larkin Brothers, 1934); and where strict liability applies, Rylands v Fletcher (1868) being itself a case in which competent independent contractors were employed and the defendant was liable nonetheless.

H. The employer's indemnity. In theory a master who has paid may recover an indemnity from the servant: Lister v Romford Ice and Cold Storage Co (1957). In practice the right is almost never exercised.