Law of Torts

UNIT - II
 Trespass to the Person
• Trespass to the person involves the wrongful invasion of a persons’ right
to freedom from interference with his body or his right to personal liberty.
This is in contrast to trespass to land that involves the wrongful invasion
of another’s premises.
• In modern times, trespass to the person has been replaced by the three (3)
separate torts of: 1. False Imprisonment
• 2. Assault
• 3. Battery
• False imprisonment, assault and battery involve the wrongful invasion of a
persons right to freedom and liberty. They all comprise a category of tort law
known as trespass to the person. All three torts are derived from the old common
law ‘writ of trespass’ and are actionable per se which means that lawsuits may
commence without the need to prove actual harm or damage.
• Assault and battery cases are often brought against police officers and the
Attorney General. ROOKES v BARNARD held that where a government servant
commits an arbitrary, oppressive or unconstitutional act against a member of the
public. Punitive damages may be awarded in addition to compensatory damages.
 FALSE IMPRISONMENT
• This is the wrongful or unreasonable restraint of an individual’s liberty [without
lawful justification]. There is NO need to show damages. For example, police
officers may arrest or detain individual without legal justification.
• One’s liberty cannot be restrained without authority in law or following
reasonable conditions. For example, an exception to this principle would be the
implied acknowledgement or compliance of passengers on trains or airplanes
with conditions of travel that restrict movement and freedom. Therefore, false
imprisonment is not to be narrowly interpreted to include only prisons or jails.
• False imprisonment deals with:
• 1. Inconvenience sustained by the intentional restriction of movement;
• 2. Total restraint by external limits or powers, even if it is temporary;
• 3. Compelled or confined to stay in one place, against one’s will for which there is a
complete loss of freedom
• However, an important point to note is that violence or the actual expression of force is
NOT necessary to commit false imprisonment. In addition, partial restraint, obstruction
or detention would not be subject to a successful cause of action for false imprisonment.
The boundary preventing one from passing can be large, narrow, moveable or fixed.
 LAWFUL JUSTIFICATION
• The defence for false imprisonment is lawful justification, such as a lawful
arrest. However, an unlawful arrest by a police officer may result in a cause of
action for false imprisonment, as would battery.
• CLARKE v DAVIS held that police officers may be liable where they order a
person, without physically holding him, to accompany them to the police
station, and that person submits to the show of authority. Moreover a security
guard at a store may be liable for false imprisonment where there is a request
that a suspected shoplifter accompany him to the store office, and that person
complies in order to avoid an embarrassing scene in a public place
• QUASHIE v AG held that punitive damages as well as compensatory
damages may be awarded against the Attorney General for any oppressive,
arbitrary or unconstitutional act by a government servant, such as a police
officer.
• In ROBINSON v BALMAIN FERRY COMPANY LIMITED it was held
that the operator of a ferry that charged a fee to enter and exit the ferry
was not guilty of false imprisonment to refuse the plaintiff from leaving
until the fee was paid because the refusal was reasonable.
• LEBRUN v HIGH-LOW FOODS LIMITED held that a person may be
liable for false imprisonment though he does not limit himself carry out
the actual arrest. He will be able liable where he authorizes or direct an
officer to make the arrest, which does not apply to one who merely makes
a report to the police, who exercise discretion to make an arrest.
 TORTIOUS ASSAULT
• Tortious assault is the calculated threat of violence which causes reasonable fear
of immediate physical contact. Assault entails conduct reasonably leading to
battery, such as:
• • Intimidation,
• • Apprehension of harm,
• • Unlawful contact,
• • Manifestation of violent propensities, and
• • Threats
• The test for whether an assault has been committed is whether a
reasonable person would have to fear that violence is immediate or about
to be committed in the circumstances to constitute assault.
[notwithstanding the type of object or subjective motive of the
perpetrator] For example, the intimidating use of a toy gun against one
who believes the toy to be real may constitute tortious assault.
• Tortious assault is distinguished from actual tortious battery which is the physical
contact that may occur subsequent to tortious assault. In other words, tortious assault is
the fear of the battery that may or may not subsequently occur.
• For example a clenched fist would constitute the assault, while the punch is the battery.
Individuals do not have the right to give conditional threats or demands without lawful
authorization.
• However, assault cannot be words alone. There must be some action or words
accompanying action that leads to the apprehension of physical harm through unlawful
contact. Damages include physical as well as injury to dignity, humiliation or mental
suffering.
• In STEPHENS v MYERS, an altercation took place between the plaintiff
and the defendant at a parish council meeting. The defendant approached
the plaintiff with a clenched fist but his blow was intercepted by a third
party and the defendant successfully sued for assault.
• In HULL v ELLIS the defendant held the revolver in her hand and
accosted the plaintiff while riding his donkey on a public road an inquired
the source of wood he was carrying. It was held that she committed
assault.
 Trespass To Land
• It is a tort relating to immovable property. Every person who possess
lawfully any land; has a right to exclude others from entering over his
land. If a person without permission or authority enters on his land will be
treated as raspasser.
 Definition
• Winfield, ‘Trespass to land is the name given to that form of trespass which
is constituted by unjustifiable interference with the possession of land.’
• • Street, ‘Intentionally or negligently entering or remaining on, or directly
causing contact with land in the possession of another is a trespass.’
• • Trespass is unwarranted entry upon another's land or any direct and
immediate act of interference with the possession of land.
• • To constitute trespass, actual force, unlawful detention, actual damage or
breaking of enclosure is not essential.
 Modes of trespass
• T r e s p a s s t o l a n d m a y b e committed by following ways.
• 1. Trespass by unlawful entry.
• 2. Trespass by remaining on land.
• 3. Trespass by placing things on land.
 1. Trespass by unlawful entry.
• It is the most common mode of trespass.
• For this slightest entry of the defendant is sufficient.
• Eg. Complete entry, sitting on wall, inserting hand over another’s property
 2.Trespass by remaining on land
• Sometime a person has permission to entre for certain time. But if he
remains on the land after his right to entry ceased; causes trespass.
 3. Trespass by placing things on land.
• It is trespass caused not by actual entry; but by placing or crossing some
physical things on another’s property.
• • Eg. Driving nail into plaintiff’s wall, throwing stone or rubbish over his
property.
 Essential elements for trespass
• For an action for trespass “entry” is essential.
• • To constitute ‘trespass’ there must be entry by an unauthorized person.
• • A person will not be liable for involuntary entry. But he may be liable for
intentional entry or entry by mistake.
• • A person may be liable for aerial or underground trespass.
• • If a person enters lawfully, remains there after his right is ceased, liable for
trespass, and his entry is considered as unlawful.
• • Every interference with the land of another is considered as constructive trespass.
 What plaintiff has to prove?
• In an action of trespass, plaintiff must prove following things.
• 1. That the plaintiff was in actual possession of the land at the time of
trespass. Where is mere user of the land is not sufficient. Lawful or
unlawful possession is immaterial.
• 2. There was direct interference with the possession of his land. There is
no need to show actual loss or damage.
 Remedies to plaintiff
• Following remedies are available to the plaintiff.
• 1. Plaintiff can file suit against defendant for injunction restraining him
from doing and repeating the act of trespass.
• 2. Plaintiff can file suit against defendant claiming damages. Other
remedies like declaration of right, possession, expulsion may be claimed
along with injunction and damages.
 Defences available to defendant
• In an action for trespass, defendant has following defences.
• 1. Prescription- Defendant may plead that he was justified by his right by way of
prescription.
• 2. Leave and license – It is also considered as consent. This defense can be used for those
acts which will be lawful with consent. Where plaintiff has consented for the entry of
defendant; he cannot complain.
• 3. Authority of law - if the entry of the defendant is warranted by lawful authority, he not
answerable.
• 4. Act of necessity – if the act done by the defendant is under necessity, if may not be liable.
• 5. Self defense – if defendant does trespass for safety of himself, property,
goods or animals; he may not be liable.
• 6 – Re entry on land – if defendant has been dispossessd from his land
then if tries for re entry over such land; he is liable for trespass.
• 7. Abatement of nuisance - if defendant is doing for abatement of
nuisance; in peaceful manner and without danger to life and limb; he is
not liable for trespass.
 Trespass ab initio
• Some time a person enters over another’s property with some authority or
consent. Buy later, he does some thing or abuses or goes beyond such
permission to him, he will be liable for trespass only.
• • But if a person enters the land of another under the authority of some
law but then abuses his authority b y doing some wrongful act , then he
will be treated as trespasser ab initio i.e. he will be treated as trespasser
from the bigining.
 Six carpenter’s case (Vaux v. Newman)
• In this case six carpenters entered the plaintiff’s inn and took wine and
bread there. They refused to pay for wine and bread when so asked.
Plaintiff sued them for trespass ab initio. It was held that non payment was
simply an omission to do a certain thing which the defendants were
supposed to do and it amounted to non feasance. Non feasance does not
render a person liable for trespass ab initio. So the carpenters were not
trespasssers ab initio.
• In this case, court laid down three points
• 1. If a man abuses his authority given to him by law, he become a
trespasser ab initio.
• 2. In an action of trespass, if the authority be pleaded then subsequent
abuse may be replied.
• 3. A mere non feasance does not amount to such an abuse as renders a
trespasser ab initio
 Limitation to trespass ab initio
• 1. It is applicable only where the entry is authorized under any law.
• 2. It is applicable only in cases of mis feasance and not for non feasance.
• 3. It is not applicable where entry can be justified on other ground.
• 4. It is less applicable in the present time.
 TRESPASS TO GOODS
• It consists in direct physical interference with the goods which are in the plaintiff’s possession ,
without any lawful justification .It is actionable per se ,such as throwing stones on a car ,shooting
birds are some examples .
• It is a wrong against possession Any person whose possession of goods is directly interfered with
can bring this action . A person may be either in the direct physical possession of the goods or may
have their constructive possession .
• Armory vs. Delamirie - The chimney sweeper’s boy , who after finding a jewel had given to a
jeweller on his refusing to return the same .
• Direct interference
• direct physical interference without lawful justification is a trespass . The wrong may be committed
intentionally , negligently or even by an honest mistake .
• Detinue
• when the defendant is wrongfully detaining the goods belonging to the plaintiff and refuses to deliver the
same on lawful demands , the plaintiff can recover the same by bringing an action for the detinue .
• Detinue abolished in England
• In England by passing of torts Act 1977 it had been abolished . The tort of conversion has been extended
to include those situations also which were termed as detinue .
• Position in India
• When the thing claimed is held by the defendant as the agent or trustee for the plaintiff . When the
compensation in money would not afford the plaintiff adequate relief for the loss of the thing
claimed .When it would be extremely difficult to ascertain the actual damage caused by it’s loss .When
the possession of the thing claimed has been wrongfully transferred from the plaintiff . In Banshi vs.
Goverdhan , the defendant having taken cycle on hire from the plaintiff failed to return the same . He was
held liable to pay to the plaintiff the estimated value of the cycle ie Rs 300 under an action for detinue .
• Conversion
• It also known as trover consists wilfully and without any justification
dealing with the goods in such a manner that another person , who is
entitled to immediate use and possession of the same of that (means that
dealing with the goods which is inconsistent with the right of the owner ).
• Richardson vs. Atkinson the defendant drew out some wine from the
plaintiff’s cask and mixed with some water to make the deficiency
good .Defendant was liable as it was inconsistent with the right of the
plaintiff .
• In trespass to land the interference is with possession of land , it is actionable per se ,
for claiming damages wasn’t supposed to prove that he has suffered some damage , it
is the wrong against the possession rather than ownership and it is covered under
Section -110 of Indian Evidence Act . For e.g Planting a tree on another’s land is a
trespass . The remedies are – re-entry ,suit for damages , mense profit , distress damage
feasant . In trespass to goods the there is unreasonable interference with the goods
which are in the plaintiff’s possession . In detinue the defendant wrongfully detains the
goods which belonged plaintiff and refused to give them back on his demand. In
conversion the defendant does some act which was wilfully and unreasonable in the
dealings of the goods which was inconsistent with the right of the plaintiff .
 NUISANCE
• Definition
• The word ‘nuisance has been derived from the French word ‘nuire’ and Latin word
‘nocare’ which means, to do hurt or to annoy. • Ordinarily nuisance means
disturbances. • Stephen defined nuisance as, ‘to be anything done to the hurt or
annoyance of the lands, tenement or hereditaments of another, and not amounting to
a trespass’. • Blackstone, ‘nuisance as some thing that worketh hurt, inconvenience
or damage’. • Winfield, ‘ nuisance is incapable of exact definition but for the
purpose of law of tort, it may be described as unlawful interference with a person’s
use or enjoyment of land or of some right over, or in connection with it.’
• Salmond,
• ‘the wrong of nuisance consists in causing or allowing without lawful justification (but so as to
common to trespass) the escape of any deterious thing from his land or from elsewhere into land
in possession of the plaintiff eg. Water, smoke, smell, fumes, gas, noise, heat, vibration,
electricity, disease, germs, animals. •
• Clark and Lindsell, ‘nuisance is an act or omission which is an interference with disturbance of
or annoyance to a person in the exercise or enjoyment of –
• a. Right belonging to him as a member of public when it is a public nuisance, or
• b. His ownership or occupation of land, or some easement, quasi easement, or other right used or
enjoyed in connection with land, when it is private nuisance.’
 Kinds of nuisance
• 1. Public nuisance
• 2. Private nuisance
 1. Public nuisance
• Section 268 of Indian Penal Code define public nuisance as , ‘an act or
omission which causes any common injury or annoyance to the public or
to the people in general who dwell or occupy property in vicinity, or
which must necessarily cause injury, obstruction, danger, or annoyance to
persons who may have occasion to use any public right.
 Essential ingredients for public nuisance
• A person must have done an act or an illegal omission. • Such act or
ommission
• i. Must cause any common injury, danger or annoyance to the public or to
the people in general who dwell or occupy property in the vicinity
• ii. Must necessarily cause injury, obstruction, danger, or annoyance to
person who may have occasion to use any public right.
• In public nuisance, a private person cannot bring action. But action may
be possible under sec. 133 of Criminal Procedure Code. Generally action
is taken by State against person causing public nuisance. • A private
person can take action against public nuisance if –
• 1. There must be specific damage.
• 2. Injury must be direct.
• 3. Injury must be substantial.
 2. Private nuisance
• Underhill, ‘ a private nuisance is some unauthorized use of a man’s own
property causing damage to the property of another or some unauthorized
interference with the property or proprietary right of another causing
damage, but not amounting to trespass.’
 Kinds of private nuisance
• Generally speaking the wrong of private falls under two classes
• a) Damage to property b) Physical discomfort
 a. Damage to property
• In the case of damage to property any sensible injury will be sufficient to
support an action. Nuisances of this class arise from manufacturing works,
chains etc. Ex. – smoke, fumes, gas, noise, water, filth, trees, animals,
 b. Physical discomfort
• In the case of physical discomfort the act complained of must be
• 1. in excess of the natural and ordinary course of enjoyment of the property. 2.
materially interfering with the ordinary comfort of human existence.
• Eg. Carrying any trade causing nuisance, obstruction of light, pollution of air, noise,
water, land.
• • Discomfort should be such as an ordinary or an average person in the locality and
environment would not put up with or tolerate.
• • For discomfort degree or intensity, duration, locality, and mode of use of property is
considered.
 Difference between private and public
nuisance
• PRIVATE NUISANCE 1. It is infringement of right of a private person.
• 2. The injury is caused to the individual.
• 3. In due course of time under certain circumstances the private nuisance may be legalized.
• 4. The injured person may bring an action.
• 5. Here plaintiff must prove interference with his enjoyment of land
• PUBLIC NUISANCE
• 1. It is infringement of public right.
• 2. It causes injury to every person of the public.
• 3. The lapse of time cannot legalize public nuisance.
• 4. A person may bring action only if he sustain special injury.
• 5. It is actionable per se
 who can be sued?
• Plaintiff can institute suit against
• i.Any person is liable for a nuisance who either creates or causes it, or
continues its existence or allows it to continue or who authorises its
creation or continuance.
• ii.Prima facie the occupier of premises is the person liable to third parties
for nuisance on or arising from the premises.
 Remedies for nuisance
• 1. Abatement
• 2. Damages
• 3. Injunction
• 4. Criminal action under the provisions of Indian Penal Code and Code of
Criminal Procedure
 Defences in cases of nuisance
• 1. Grant - It is a valid defence to an action for nuisance that the said
nuisance is under the terms of a grant.
• 2. Prescription - It is a special defence in cases of nuisance; if it is used
peaceably and openly enjoyed as an easement and as of right without
interruption and for 20 years. This is not useful in public nuisance.
• 3. Statutory authority - If defendant has committed the act complained
under statutory authority and all precaution required under law are
complied; he is not liable.
 Following are not defences
• That the plaintiff himself come to nuisance.
• In case of continuous nuisance, all possible care has been taken.
• Defendant merely making reasonable use or property.
• It would confer benefit to public at large.
 NEGLIGENCE
• Negligence is one of the most common tort. It is formulated in 19th
century. • In law of torts, negligence may mean
• A. A state of mind in which a particular tort may committed or
• B. An independent tort.
 Definitions
• Austin, ‘ Negligence is a faulty mental condition which is penalized by
the award of damage.’
• Winfield, ‘as a mental element in tortious liability, negligence usually
signifies total or partial inadvertence of the defendant to his conduct and
for its consequences.’
• Clark and Lindsell, ‘negligence is the omission to take such care as under
the circumstance it is the legal duty of a person to take.’
• Pollock, ‘ negligence is contrary to diligence.’
 Essential condition to sue for negligence
• 1. The defendant was under a duty of care to the plaintiff.
• 2. The duty was towards plaintiff
• 3. There had been a breach of that duty
• 4. As a result the plaintiff has suffered damage.
 1. Duty of care
• A man may be as negligent as he pleases towards the whole world, if he
owes no duty to them. But when a man does any act and he know its
consequence, that it is likely to cause any harm to another; then he is having
a duty of care towards another persons.
• • If a person driving a vehicle, he must be careful and has duty of care
towards pedestrian. If a person carrying sharp thing in crowded place, he has
a duty of care not to cause injury to people. A manufacturer must take care
for consumers. Doctor while operating must take care of patient. The
categories of negligence is never closed.
• The duty of care must be one recognized by law.
• • Negligence is not a ground of liability unless the person whose conduct
is impeached is under a duty of taking care.
• • According to Bowen L.J. ‘the idea of negligence and duty are correlative
as there is no such thing as negligence in abstract; negligence is simply
neglect of some care which we are bound to exercise towards somebody
 Donoghue v. Stevenson
• In this case, a man bought from a retailer a bottle of ginger beer
manufactured by the defendant. The man gave the bottle to his lady friend
who became ill from drinking the contents. The bottle contained the
decomposed remains of a snail. The bottle was opaque so that the noxious
substance could not have seen and was not discovered until the lady was
refilling her glass. The consumer sued the manufacturer in negligence. It
was held by House of Lords, that manufacturer was liable to the
consumer.
• It was also held that, the consumer had no cause of action in contract against either
retailer or manufacturer because it was she and not her friend who bought the
bottle. Her claim arose in tort e.g. Negligence and the breach of a duty of care owed
to herself as a consumer.
• Out of it has come the following broad definition of the duty of care.
• You must take care reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour,
• My neighbours are the persons who are closely and directly affected by my act that
I ought reasonably to have them in contemplations which are called in question.
• The rule enunciated has been applied to a manufacturer of food stuffs, clothing,
hair dyes, and similar matters.
• The recognised duties in law are...
• Highway
• Employer’s liability
• Professional persons like, doctors, surgeons, solicitors, engineers etc
• Bailees of goods
• Carriers
 Degree of care
• Duty to take care arises as soon as there is a reasonable probability of
danger from the conduct of the defendant.
• Not definition of carelessness or negligence is possible; it can only be
evaluated in the light of some norm or standard, which the person making
evaluation has in mind.
• The required standard of care is not the highest possible standard but the
standard of the ordinary average reasonable man if he were placed in the
defendant’s circumstances.
• The degree of care which a man is required to use in a particular situation
varies with the obviousness of the risk. If the possible danger is great;
great care is required. If possible danger is slight; slight degree of care is
required. The care that will be required of them will be the care that an
ordinary prudent man is bound to exercise. The prudent man is the man
who has acquired the skill to do the act which he undertakes. A person
who profess to have special skill or who have voluntarily undertaken a
higher degree of duty are bound to exercise more care than an ordinary
prudent man.
 2. Duty must be owed to the plaintiff
• Mere carelessness on the part of defendant is not enough unless it is
shown that, such duty owed to the plaintiff. If defendant owe no duty to
the plaintiff; he cannot sue even though he sustained injury
 3. Breach of duty of care
• Breach of duty means non observance of due care which is required in
particular situation. What standard of care is required? It is that of a
reasonable man or an ordinary prudent man. For this following things are
considered
• 1. Importance of the object to be attained,
• 2. The magnitude of the risk,
• 3. The amount of consideration for which services etc are offered.
 4. Damage
• It is necessary that defendant’s act has caused actual damage to plaintiff.
And plaintiff has to prove that damage to him is immediate result of
defendant’s act and it is not remote.
 Res Ipsa Loquitur
• In a suit for negligence, plaintiff has to prove following facts so as to get
remedy.
• 1. The defendant was under a duty of care to the plaintiff.
• 2. The duty was towards plaintiff
• 3. There had been a breach of that duty
• 4. As a result the plaintiff has suffered damage.
• Plaintiff has to show proof of negligence of defendant. And if he proves
then defendant can disprove it. If plaintiff fails to prove negligence of
defendant; he will not get remedy and defendant is under no liability to
disprove. • In some cases plaintiff may be in hardship to show negligence
of defendant because, the true cause of the accident, lies, solely within the
knowledge of the defendant who caused. In such case plaintiff has to only
accident (damage) and nothing more. Because there is presumption of
negligence according to maxim, “res ipsa loquitur”.
 Conditions for Res Ipsa Loquitur
• Following Conditions are requited for application ofRes Iipsa Loquitur 1.
The accident must be such kind which does not ordinarily occur in the
absence of some one’s negligence. 2. It must be caused by an agency or
instrumentality within the exclusive control of the defendants. 3. The mere
occurrence of the event must raise of itself a reasonable inference that the
defendant or his servant or agent have been negligent. 4. Absence of any
explanation how the accident occurred by the defendants. 5. It must not
have been due to any voluntary action or contribution on the part of the
plaintiff.
When Res Ipsa Loquitur is not applicable
• Res Iipsa Loquitur is not applicable when...
• 1. it is not applicable to all accidents; but only where cause is within knowledge and
control of defendant.
• 2. Rule does not create a legal presumption of negligence and it is rebuttable
presumption.
• 3. Burden of proof to negligence is on plaintiff but some times it is less than other cases.
• 4. It does not absolve plaintiff from burden of proof.
• 5. Defendant can show way in which the accident may have reasonably occurred
without negligence on his part.
 Defences
• 1. No duty.
• 2. No damage.
• 3. Consent of plaintiff
• 4. Damage not caused due to negligence
• 5. Contributory negligence
Thank You