VNFI:

Defences available for tort

Easy to remember
Jeva+sap+ias
Jeva did sap but finally settled as a ias officer
J - judicial act
E executive act
V voluntary non fit injuria
A act of god
S self defense
A act of state
P parental and quaisa parental authority
I inevitable accident
A act causing slight harm
S statuary authority

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1. What are the exemptions to rule Reylands Vs Fletcher? (Or) Explain the Rule of Strict
Liability with help of Decided Cases? (Page No.178- Vijaya)
Ans:
 Strict Liability means Defendant is strictly liable without any fault / Negligence.
 Liable not because of his fault, but keeping some dangerous things in his land.
 There are many activities which are so hazardous, may cause danger to Person / Property.
 Strict Liability has its origin in the case of Rylands V. Fletcher
 Case Law: Rylands Vs. Fletcher 1868
Brief about Case:-
Defendant constructed reservoir through an independent contractor, on his own land to provide for his mill. The
engineers failed to seal the old disused shafts. When filled the reservoir with water it burst through shafts and
flooded into plaintiffs coalmines. In this case though there is fault with defendant, court ordered him to pay the
compensation.

Essentials Ingredients-
 Dangerous things
 Likely to damage if it escapes
 Ex: Cooking gas, Explosives, electricity etc.

 Escape:
 Dangerous thing escape from the control of defendant.
 Ex: leakage of gas, Projection of Branches of poisonous tree.

 Non-natural Use of Land

 Stored in Large quantity, cause damage
 Examples: Storing 100 gas cylinders in a kitchen. Keeping lion or tiger in house for security

Exceptions
 The Plaintiff own default
 Case Law: Ponting Vs. Noakes (Plaintiff horse intruded into defendant land eat poisonous leaves & dead)

 Act of God
 Natural calamities are act of god. Defendant are not liable.
 Examples: Floods, Tsunami, Earthquakes, Heavy Rains etc..
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  Case Law: Nicholas Vs, Marsland: Defendant created artificial lake near natural stream. Its strong one. One
there is heavy unusual rains flooded washes plaintiff 4 bridges, is act of god, defendant not liable.

 Consent of the Plaintiff

 Due to consent given by the plaintiff – defendant not liable.
 This is known as VOLENTI NON FIT INJURIA
 Case Law: Carstairs Vs. Taylor : Plaintiff hired ground floor & Defendant living in upper floor. The water tank is
leaked without negligence of defendant is not liable and the water stored for the benefit of both.

 Act of Third Party

 Defendant not liable for the act of third party / stranger.
Case Law: Box Vs Jubb : Some stranger blocked the outlet of the reservoir, overflowed at cause damage to
plaintiff. In this case defendant bot liable.

 Statutory Authority
 Defendant not liable for the damages caused for the act of authorised by the Government or law.
 Case Law: Green Vs Chelsea Water Works : Govt. water works while suppling water to public, pipeline burst
and flooded to plaintiffs property is not liable

2. Explain the Rule of absolute Liability?

 The rule of “Absolute Liability’ is developed from the rule of ‘Strict Liability” evolved by Blackburn J., in
1868 in the case of Rylands v. Fletcher.
 The liability of defendant under absolute liability is more when compared to the strict liability.
 Strict liability provides for certain defences to the defendant to get exemption from the liability.
 Whereas, the absolute liability provides no defences and the defendant has no chance to escape from
the liability.
 Therefore: Strict Liability: Liability irrespective of negligence on the part of the defendant with certain
defences, (Rylands v. Fletcher, 1868).

 Absolute Liability: Liability irrespective of negligence on the part of the defendant without defences.
(M.C.Mehta vs. Union of India, 1987).

 The rule of Absolute Liability was evolved in 1987 by P.N.Bhagwati C.J., Supreme Court in M.C.Mehta vs. Union
of India.

 There are two leading cases of poisonous gas disaster, leading to the formulation of the principle of absolute
liability.
 They are
1. Union Carbide Corporation vs. Union of India, 1986 – Popularly known as Bhopal Gas leak case,
2. M.C.Mehta and Another v. Shri Ram Foods and Fertilizer Industries and others, 1987
(Also known as Oleum Gas leak case)

The rule of Absolute Liability:

1. It’s compulsory liability,
2. It has no exceptions,
3. The defendant can’t escape from liability,
4. The defendant is liable in spite of taking all reasonable steps,
5. Stricter than ‘Strict Liability”,
6. It’s evolved by Indian Courts,
7. The enterprise dealing with hazardous and inherently dangerous manufacturing process must be in a
position to face any consequences and to meet the liability.
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 3. To what extent is an Occupier Liable for dangerous premises?
 Occupier is a person, owner or having control over certain premises and structures
 Examples: Factories, Shopping Malls, aeroplanes, ships etc.
 The occupier duty to care towards person visit those premises.
Occupiers Liability:
Occupiers obligation will be considered under 3 heads, depends upon the kinds of persons visited.
1. Obligation towards lawful visitor
2. Obligation towards trespassers
3. Obligation towards children

Obligation towards lawful visitor

 Visitor is person, who entered into premises for specific purpose as per right conferred by law.
 Under common law, lawful visitor are classified under 2 heads, namely
a) Invitees
b) Licensees

Obligation towards lawful visitor

 Visitor is person, who entered into premises for specific purpose as per right conferred by law.
 Under common law, lawful visitor are classified under 2 heads, namely
c) Duty towards Invitees
d) Duty towards Licensees
e) Duty towards Structures (Municipal Corporation of Delhi v. Subhagwanti)

a. Obligation towards Invitees

 Invitee, is a person, who enters the premises upon invitation of the occupier.
 Examples: A customer in a shop, workman engaged in a repair work, Person entered into railway station to buy
ticket,
Case Law: Indermaur v. Dames,
The defendant for testing the gas fittings invited a gasfitter. While testing, he fell from an unfenced opening of the
upper floor and was injured. It has been held that a gasfitter was an invitee and entitled for compensation.

b. Obligation towards Licensees

 Licensee is a person who enters the premises with the permission for his own purpose.
 The occupier had a duty to give warning of any latent defect or inner danger, occupier is liable for the dangers
known to him and not liable for the dangerous not known to him or dangers known to the licensee.
Case Law: Fairman v. Perpetual Investment Building Society
It is due to the depression of one of the steps in the staircase, the plaintiff’s heel was caught, she fell down and got
injured she failed to observe obvious danger. Therefore, the defendants were not liable.

Obligation towards structure

 The occupier of the buildings situated adjacent to highways must take care and maintain perfectly.
Case Law: Municipal Corporation of Delhi v. Subhagwanti
An 80 years old clock tower maintained by Municipal Corporation of Delhi collapsed which killed several persons. The
normal life of structure was 40 to 45 years only. The mortar had become powder without any cementing property. The
defendants were held liable for negligence.

Obligation towards trespassers

Trespasser means a person who enters into premises without permission. Thus, trespass is an unauthorized entry. The
occupier has no duty to take care of the danger the trespasser enters at his own risk.
Case Law: Mokshada Sundari v. Union of India
The plaintiff’s husband crossed a railway line. A train cashed and killed plaintiff’s husband who was crossing a railway
line. The deceased was a trespasser hence, the Defendants were not liable.

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Obligation towards children
 Children are innocent. Hence, the occupier must take a greater care towards child visitors.
Case Law: In Glasgow Corporation v. Taylor
A child of 7 years ate attractive poisonous berries in a park and died. Therefore, the corporation was held liable to pay
compensation as they failed to take care.

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1. Passing Off

 Passing off is a common tort which can be used to enforce unregistered trade mark right.
 The law of passing off prevents one person from misrepresenting his goods or services as that of another.
 Basic elements of passing off
1. Reputation,
2. Misrepresentation,
3. Damage to goodwill

 The purpose of the tort of passing off is to protect the goodwill which is a commercial concern which may have
earned, so that no other person can make use of same.
 The action of tort of passing off involves a combination of two elements:
 Certain name has become distinctive of the plaintiff’s goods,
 That the defendant’s use of that name was likely to achieve deceive and thus cause confusion and injury to the
business reputation of the plaintiff.
Case Law: Ellora Industries v. Banarasi Dass
 In this case Banarasi Dass was selling watches and registered proprietors of the trade mark Ellora since 1955.
Ellora Industries, Gargon(Punjab) adopted it as a trading style in 1962. The plaintiff Banarasi Dass brought an
action requesting for an Injunction to restrain the defendant’s from using the mark ‘Ellora’ or any other similar
mark, which they contended is similar to their trademark and prevent them from passing off their goods as the
goods of plaintiff.

 It was held that the plaintiff was entitled to injunction because it was a clear case of passing off and also of
infringement of the plaintiff’s registered trade mark.

Case Law: New Delhi v. Kalaniketan

 Kalaniketan Karolbagh, New Delhi v. Kalaniketan G-10 (Basement), South Extension, Market I, New Delhi, the
plaintiff was in the business of selling sarees under the name of Kalaniketan in Karolbagh for more than 20
years, and achieved unique reputation, name and goodwill in the market.

 The defendant adopted the same trade name, in an action for injunction against the defendant it was held that
the disputed name had become distinctive of the plaintiff’s business and defendant’s use of same name was
calculated to deceive or cause confusion and injury to the business reputation of the plaintiff, and the plaintiff
was therefore entitled to permanent injunction.

2. Assault & Battery

Ans:
The wrongs committed against the freedom of Fundamental Rights, recognised under the law of torts are called as
specific torts.
Assault:
 It is an attempt /threat to hurt a person unlawfully.
 Assault completed when fear created.
 It’s an attempt, not injury.
 Example: attempt to thrown hot water, Pointing Gun, Knife etc.
Ingredients
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  Attempt to use force / threat
 Fear of Injury / death
 Defendant have capacity create Injury

Battery
 Battery Includes Assualt.
 Battery is a direct use of force on another person.
 It is intentional and Unlawful act.
 Example: attempt to thrown hot water, Pointing Gun, Knife etc.

Ingredients
 Actual force
 Intentional and Unlawful

3. Conspiracy
Ans:
 A secret plan by a group to do something unlawful or harmful.
 When 2 or more persons combined together without lawful justification causing damage to the plaintiff and that
results in actual damage is committing a tort of conspiracy.
 Its both a crime and tort
 In criminal law merely an agreement between the parties to do an illegal act or a legal act by illegal means is
actionable.
 Its not necessary that the conspirators must have acted in pursuance of the agreement.
 Whereas mere agreement between the parties is not a tort
 The tort is completed only when, actual damage results to the plaintiff
 When object of the persons is to protect there only interest rather than causing damage the plaintiff they will
not be held liable.
 Case Law : Moghual steam Shipping Copany Vs. Megreegor, Go & Co.
The Defenders were traders in tea, from china to Europe. They combined together to offer reduce prices which
resulted in the plaintiff going out of business. It was held that the defendant’s intention was to protect their
business and was lawful. They did not use any unlawful means, and hence not liable forth tort of conspiracy.

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 4. Explain the essentials of defamation?
 The term Defamation means – Injury to the reputation or character of person.
 It is not only defamatory, but also lower the reputation of the person in the society
 Defamation is dual wrong. It is tort and also crime under IPC 499

According to Winfield –
-“Defamation is the publication of statement, which tends lower the person in estimation of right thinking of the
members of the society, generally”-

Kinds of Defamation
Libel :
 Permanent Form of defamation. Ex: Writing, Painting, Cinema, tape, compact disc, photo graphy etc,
 Libel is a publication of false and defamatory statement tending to injury to the reputation of the another
person with our lawful justification or excuse.
 Libel is a written form of defamation addressed to eye.
 Noor Mohammed Vs. Mohammed Jiauddin

Slander
 Slander is a temporary form of defamation ex: Spoken words, insulting words etc.
 Slander is a false and defamatory verbal or oral statement in temporary form tending to injure the reputation of
another without lawful justification or excuse. .
 Simply slander is a spoken form of defamation addresses to ear.
 Case Law: D.P.Chowdary Vs. Manju Latha

Essential Elements of Defamation:-

The plaintiff, to be successful in an action for defamation, has to prove the following conditions ..
A) Defamatory
B) Reference to Plaintiff, and
C) Publication

Defamatory:
A statement is defamatory if …
 To excite (=Stimulate) Bad opinion / feeling against the plaintiff
 To hold public hatred (=hate), contempt (=dislike), ridicule, disesteem
 To prejudice(=bias) private character
 To injure his profession, business or trade
 To cause him to be avoided by his neighbours

South Indian Railway Company Vs. Ramakrishna (1890)

Capital & Countries Bank Vs. Henty & Sons (1882)

Reference to Plaintiff:
 The plaintiff must prove the statement is referred to him. The intention of the defendant to defame the plaintiff
is not necessary.

Cassidy Vs. Daily Newspaper limited

TV Ramasubba Iyer Vs. Moinuddin

Publication:
 Publication means making the defamatory matter known to some person other than the person defamed.
Arumuge Mudaliar Vs.Annamalai Mudaliar 1966
Pullman Vs. Hill 1891 1 QB 524

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 4. Nuisance
Ans:

 The word nuisance is derived from a French word ‘nuire’, which means to hurt or to annoy (=irritate)
 Any wrongful act interfering with the comfort, health, safety and property a nuisance.
 Example: Loud noise, smoke, waste water, gas etc.

Kinds of Nuisances:
a. Public Nuisance
b. Private Nuisance

a. Public Nuisance
 It is also called as common nuisance.
 It is interference with the rights of the public in general.
 Example: Trenching on highway, throwing garbage on roads
 It causes inconvenience to many people, nobody allowed to claim compensation.
 It is punishable under criminal law under Section 268 of IPC 1860, but not a tort.
Case Law:
Dr.Rama Raj Singh Vs. Babulal (Defendant running brick grinding machine cause inconvenience to patients and
polluted the atmosphere)

b. Private Nuisance
 It is also called as ‘tort of nuisance’
 It is not a crime
 It interferes the right of one person or group of persons.
 Example: Smoke, heat, Vibrations, High volume music
 The aggrieved part can only claim for the compensation.
Case Law:
Attorney General Vs. Brighton (Keeping Number vans in front if his shop held to be private nuisance)

Essential Ingredients:
1. Unreasonable interference.
2. Interference with use or enjoyment of land.
3. Damage.