TORT ELEMENTS( 10 MARKS )

The word tort originates from the French language. It is equivalent to the English word “wrong” and
Romanian law’s term “delict”. It is derived from the Medieval Latin word “tortum” which means
“wrong” or “injury” which itself was further developed from the Old Latin word “torquere” which means
“to twist”.

According to John Salmond, He addresses tort as being only a civil wrong which
has unliquidated damages (those damages for which there is no fixed amount)
in the form of remedy and which is not just exclusively the breach of contract or
the breach of trust or breach of merely fair and impartial obligation.

Essential Elements of a tort ( 10 MARKS )

Three essential elements which constitute a tort are,

1. A Wrongful act or omission, and

2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and
It should be of such a nature that it should give rise to a legal remedy in the
form of an action for damages.

What is a Wrongful Act?

A wrongful act can be either morally wrong or legally wrong and can also be
both at the same time.

A legal wrongful act is one which affects one’s legal right, the wrongful act must
be one recognized by law, the act must be in violation of the law to be a legal
wrongful act. An act which seems Prima facie (based on the first impression)
innocent may also end up infringing somebody else’s legal right, innuendo
(Where a statement is said by an individual which may be Prima facie innocent
but may also have a secondary meaning which can harm the reputation of
another in the eyes of the public or the person who comes to know of such
information) is an example of this. Liability for a tort arises when the wrongful
act being complained of amounts to an infringement of a legal private right or a
breach or violation of a legal duty. i.e. If a person is prevented from voting by
another, even if the candidate he was going to vote for, wins, his legal right to
vote has been violated.
For example, if someone whose religion does not allow him/her to eat non-
vegetarian food, still eats it then he/she will be morally wrong but not legally
wrong. And if a person whose religion doesn’t allow him or her to eat non-
vegetarian and he or she strictly follows that religion is forcefully fed by
someone then it is a legal wrong on the part of the person forcing the other one
to eat that food which he or she does not want to eat.

The factual significance of legal damage is illustrated by two maxims namely:

 Injuria sine damno, and

 Damnum sine injuria.

Injuria sine damno means injury without damage. Such damage is actionable
under the law of torts. It occurs when a person suffers a legal damage instead
of actual loss, i.e. his legal right is infringed by some other individual. In other
words, this is an infringement of an absolute private right of a person without
having suffered any actual loss.

An example of this can be the landmark case of, Ashby v. White(1703) 92 ER

126, where Mr. Ashby, the plaintiff, was prevented from voting by the constable
Mr. White. This rule is basically based on the old maxim “Ubi jus ibi remedium”
which translates to “where there is a right, there will be a remedy.”

Another example in the Indian context would be the case of,

Bhim Singh v. State of J and K, where the plaintiff was a Member of the
parliament and was not allowed to enter into the premises of the Assembly
election by a police constable, hence his legal right was infringed.

Damnum sine injuria whereas translates to damage without injury, here the
party affected suffers damage which may also be physical but suffers no
infringement of their legal rights. In other words, it means the occurrence of an
actual and substantial loss to a party without any infringement of a legal right.
Here no action lies in the hands of the plaintiff as there is no violation of a legal
right.
Distinction between Injuria sine
damno and Damnum sine injuria
(1) On one hand, i.e. in the case of Injuria sine damno there is no physical
damage or an actual loss on the part of the plaintiff while on the other hand in
case of damnum sine injuria there is actual damage and loss on the part of the
plaintiff.

(2) Secondly, in the case of Injuria sine damno, the party suffers with the
infringement of their legal rights, while in the case of Damnum sine injuria,
there is no legal right infringement.

(3) Thirdly, Injuria sine damno is actionable in the court while Damnum sine
injuria is not actionable in court.

(4) Fourthly, the Injuria sine damno deal with the legal wrongs while Damnum
sine injuria deal with the moral wrongs.

Torts and Breach of Contract – Distinguished

(10 MARKS)
(1) In the case of a tort the duty is fixed by the law, whereas in the case of
contract the duty is fixed by the parties involved.

(2) In case of a tort, the duty is towards everyone in the society, whereas in the
case of a contract, the duty is towards specific individuals only.

(3) Motive is often taken into account in the case of a tort, while, in the case of
a contract, motive is irrelevant.

(4) Damages in the case of a tort are different under different circumstances,
whereas, in the case of a contract, the damages are in the form of
compensation for the loss suffered in peculiar form.
(5) In the case of a tort, intention is taken into consideration in some cases,
whereas, in the case of a breach of contract, intention is irrelevant.

Example : A father who employs a surgeon for the treatment of his minor son,
and if his son is injured by the surgeon’s carelessness. Here the father can sue
the surgeon for the breach of contract also, as there is no contract between the
minor son and the surgeon, the minor son can sue the surgeon(for the careless
act which amounts to negligence) in tort and can also put charges on the
surgeon but he cannot sue for the breach of contract.

Tortious liability and mental element (06 M )

A tortious liability arises when an individual or a person causes any injury to
another person’s property, reputation, his life, etc. It is civil in nature and the
intention due to which such an injury was caused may or may not be necessary,
i.e., it doesn’t matter if it was caused intentionally or by accident in most of the
cases in the law of torts. The important thing is to figure out the mental
element in order to determine the tortious liability of an individual, and on the
basis of intention, tort can be either Intentional tort or unintentional tort.
Meaning of General Defences
When a plaintiff brings an action against the defendant for a tort committed by
him, he will be held liable for it, if there exists all the essential ingredients which
are required for that wrong. But there are some defences available to him using
which he can absolve himself from the liability arising out of the wrong
committed. These are known as ‘General defences’ in the law of tort.

The defences available are given as follows:

 Volenti non fit injuria or the defense of ‘Consent’

 The wrongdoer is the plaintiff

 Inevitable accident
 Act of god
 Private defense
 Mistake
 Necessity
 Statutory authority

Volenti non fit injuria ( 10 MARKS )

In case, a plaintiff voluntarily suffers some harm, he has no remedy for that
under the law of tort and he is not allowed to complain about the same. The
reason behind this defence is that no one can enforce a right that he has
voluntarily abandoned or waived. Consent to suffer harm can be express or
implied.

Some examples of the defence are:

 When you yourself call somebody to your house you cannot sue your
guests for trespass;
 If you have agreed to a surgical operation then you cannot sue the
surgeon for it; and
  If you agree to the publication of something you were aware of, then
you cannot sue him for defamation.
 A player in the games is deemed to be ready to suffer any harm in the
course of the game.
 A spectator in the game of cricket will not be allowed to claim
compensation for any damages suffered.
For the defence to be available the act should not go beyond the limit of what
has been consented.

In Hallv. Brooklands Auto Racing Club[1], the plaintiff was a spectator of a car
racing event and the track on which the race was going on belonged to the
defendant. During the race, two cars collided and out of which one was thrown
among the people who were watching the race. The plaintiff was injured. The
court held that the plaintiff knowingly undertook the risk of watching the race. It
is a type of injury which could be foreseen by anyone watching the event. The
defendant was not liable in this case.

In Padmavati v. Dugganaika[2], the driver of the jeep took the jeep to fill petrol
in it. Two strangers took a lift in the jeep. The jeep got toppled due to some
problem in the right wheel. The two strangers who took lift were thrown out of
the jeep and they suffered some injuries leading to the death of one person.

The conclusions which came out of this case are:

 The master of the driver could not be made liable as it was a case of a
sheer accident and the strangers had voluntarily got into the vehicle.
 The principle of Volenti non fit injuria was applicable here.
In Wooldrige v. Sumner[3], a plaintiff was taking some pictures standing at the
boundary of the arena. The defendant’s horse galloped at the plaintiff due to
which he got frightened and fell into the horse’s course and was seriously
injured. The defendants were not liable in this case since they had taken due
care and precautions.

In the case of Thomas v. Quartermaine[4], the plaintiff was an employee in the

defendant’s brewery. He was trying to remove a lid from a boiling tank of water.
The lid was struck so the plaintiff had to apply an extra pull for removing that
lid. The force generated through the extra pull threw him in another container
which contained scalding liquid and he suffered some serious injuries due to the
incident. The defendant was not liable as the danger was visible to him and the
plaintiff voluntarily did something which caused him injuries.
In Illot v. Wilkes[5], a trespasser got injured due to spring guns present on the
defendant’s land. He knowingly undertook the risk and then suffered injuries for
the same. This was not actionable and the defendant was not liable in the case.

Similarly, if you have a fierce dog at your home or you have broken pieces of
glass at the boundaries, all this is not actionable and is not covered under this
defence.

Consent must be free

 For this defence to be available it is important to show that the consent
of the plaintiff was freely given.
 If the consent was obtained under any compulsion or by fraud, then it
is not a good defence.
 The consent must be given for an act done by the defendant.
 For example, if you invite someone to your house for dinner and he
enters your bedroom without permission then he will be liable for
trespass.
In the case of Lakshmi Rajan v. Malar Hospital[6], a 40 year old married woman
noticed a lump in her breast but this pain does not affect her uterus. After the
operation, she saw that her uterus has been removed without any justification.
The hospital authorities were liable for this act. The patient’s consent was taken
for the operation not for removing the uterus.

 If a person is not in a condition to give consent then his/her guardian’s

consent is sufficient.

Consent obtained by fraud

 Consent obtained by fraud is not real consent and does not serve as a
good defence.
In Hegarty v. Shine[7], it was held that mere concealment of facts is not
considered to be a fraud so as to vitiate consent. Here, the plaintiff’s paramour
had infected her with some venereal disease and she brought an action for
assault against him. The action failed on the grounds that mere disclosure of
facts does not amount to fraud based on the principle ex turpi causa non
oritur actio i.e. no action arises from an immoral cause.

 In some of the criminal cases, mere submission does not imply consent
if the same has been taken by fraud which induced mistake in the
victim’s mind so as to the real nature of the act.
  If the mistake induced by fraud does not make any false impression
regarding the real nature of the act then it cannot be considered as an
element vitiating consent.
In R. v. Wiliams[8], a music teacher was held guilty of raping a 16 years old girl
under the pretence that the same was done to improve her throat and
enhancing her voice. Here, the girl misunderstood the very nature of the act
done with her and she consented to the act considering it a surgical operation to
improve her voice.

In R. v. Clarence[9], the husband was not liable for an offence when intercourse
with her wife infected her with a venereal disease. The husband, in this case,
failed to inform her wife about the same. Here, the wife was fully aware of the
nature of that particular act and it is just the consequences she was unaware
of.

Consent obtained under compulsion

 There is no consent when someone consents to an act without free will
or under some compulsion.
 It is also applicable in the cases where the person giving consent does
not have full freedom to decide.
 This situation generally arises in a master-servant relationship where
the servant is compelled to do everything that his master asks him to
do.
 Thus, there is no applicability of this maxim volenti non fit
injuria, when a servant is compelled to do some work without his own
will.
 But, if he himself does something without any compulsion then he can
be met with this defence of consent.

Mere knowledge does not imply assent

For the applicability of this maxim, the following essentials need to be present:

 The plaintiff knew about the presence of risk.

 He had knowledge about the same and knowingly agreed to suffer
harm.
In the case of Bowater v. Rowley Regis Corporation[10], a cart-driver was
asked to drive a horse which to the knowledge of both was liable to bolt. The
driver was not ready to take that horse out but he did it just because his master
asked to do so. The horse, then bolted and the plaintiff suffered injuries. Here,
the plaintiff was entitled to recover.

In Smith v. Baker[11], the plaintiff was an employer to work on a drill for the
purpose of cutting rocks. Some stones were being conveyed from one side to
another using crane surpassing his head. He was busy at work and suddenly a
stone fell on his head causing injuries. The defendants were negligent as they
did not inform him. The court held that mere knowledge of risk does not mean
that he has consented to risk, so, the defendants were liable for this. The
maxim volenti non fit injuria did not apply.

But, if a workman ignores the instructions of his employer thereby suffering

injury, in such cases this maxim applies.

In Dann v. Hamilton[12], a lady even after knowing that the driver was drunk
chose to travel in the car instead of any other vehicle. Due to the negligent
driving of the driver, an accident happened which resulted in the death of the
driver and injuries to the passenger herself. The lady passenger brought an
action for the injuries against the representatives of the driver who pleaded the
defence of volenti non fit injuria but the claim was rejected and the lady
passenger was entitled to get compensation. This maxim was not considered in
this case because the driver’s intoxication level was not that high to make it
obvious that taking a lift could be considered as consenting to an obvious
danger.

This decision was criticized on various grounds as the court did not consider
contributory negligence while deciding the case but the court’s reason for not
doing so is that it was not pleaded that is why it was not considered.

A driver’s past negligent activities do not deprive him of this remedy if someone
travels with the same driver again.

Negligence of the defendant

In order to avail this defence it is necessary that the defendant should not be
negligent. If the plaintiff consents to some risk then it is presumed that the
defendant will not be liable.

For example, when someone consents to a surgical operation and the same
becomes unsuccessful then the plaintiff has no right to file a suit but if the same
becomes unsuccessful due to the surgeon’s negligence then in such cases he
will be entitled to claim compensation.
In Slater v. Clay Cross Co. Ltd.[13], the plaintiff suffered injuries due to the
negligent behaviour of the defendant’s servant while she was walking along a
tunnel which was owned by the defendants. The company knew that the tunnel
is used by the public and had instructed its drivers to give horns and drive
slowly whenever they enter a tunnel. But the driver failed to do so. It was held
that the defendants are liable for the accident.

Limitations on the doctrine’s scope

The scope of the maxim volenti non fit injuria has been curtailed in the following
cases:


o Rescue cases

 The Unfair Contract Terms Act, 1977

In these cases, even if the plaintiff has done something voluntarily but he
cannot be met with the defence of ‘consent’ i.e. volenti non fit injuria.

Rescue cases
 When the plaintiff voluntarily comes to rescue someone from a danger
created by the defendant then in such cases the defence of volenti non
fit injuria will not be available to the defendant.
In Haynes v. Harwood[14], the defendants’ servant left two unattended horses
in a public street. A boy threw a stone on the horses due to which they bolted
and created danger for a woman and other people on the road. So, a constable
came forward to protect them and suffered injuries while doing so. This being a
rescue case so the defence of volenti non fit injuria was not available and the
defendants were held liable.

However, if a person voluntarily attempts to stop a horse which creates no

danger then he will not get any remedy.

In the case of Wagner v. International Railway[15], a railway passenger was

thrown out of a moving train due to the negligence of the defendants. One of
his friends got down, after the train stopped, to look for his friend but then he
missed the footing as there was complete darkness and fell down from a bridge
and suffered from some severe injuries. The railway company was liable as it
was a rescue case.
In Baker v. T.E. Hopkins & Son[16], due to the employer’s negligence, a well of
a petrol pump was filled with poisonous fumes. Dr. Baker was called to help but
he was restricted from entering the well as it was risky. He still went inside to
save two workmen who were already stuck in the well. The doctor himself was
overcome by the fumes and then he was taken to the hospital where he was
declared dead. When a suit was filed against the defendants, they pleaded the
defence of consent. The court held that in this case the defence cannot be
pleaded and the defendants, thus, were held liable.

 If A creates danger for B and he knows that a person C is likely to

come to rescue B. then, A will be liable to both B and C. Each one of
them can bring an action for the same, independently.
 If someone knowingly creates danger for himself and he knows that he
will likely be rescued by someone, then he is liable to the rescuer.
In Hyett v. Great Western Railway Co.[17], the plaintiff got injured while saving
the defendant’s cars from a fire which occurred due to negligence on the part of
the defendants. The plaintiff’s acts seemed to be reasonable and the defendant
was held liable in this case.

Unfair Contract Terms Act, 1977 (England)

The Unfair Contract Terms Act, 1977, limits the right of a person to exclude his
liability resulting from his negligence in a contract.

Negligence Liability

 Sub-section 1 puts an absolute ban on a person’s right to exclude his

liability for death or personal injury resulting from the negligence by
making a contract or giving a notice.
 Sub-section 2 is for the cases in which the damage caused to the
plaintiff is other than personal injury or death. In such cases, the
liability can only be avoided if a contract term or notice satisfies the
reasonability criteria.
 Sub-section 3 says that a mere notice or agreement may be enough
for proving that the defendant was not liable but in addition to that
some proofs regarding the genuineness of the voluntary assumption
and plaintiff’s consent should also be given.
Volenti non fit injuria and Contributory negligence
 Volenti non fit injuria is a complete defence but the defence of
contributory negligence came after the passing of the Law Reform
(Contributory Negligence) Act, 1945. In contributory negligence, the
defendant’s liability is based on the proportion of fault in the matter.
 In the defence of contributory negligence, both are liable – the
defendant and the plaintiff, which is not the case with volenti non fit
injuria.
 In volenti non fit injuria, the plaintiff knows the nature and extent of
danger which he encounters and in case of contributory negligence on
the part of the plaintiff, he did not know about any danger.

Plaintiff the wrongdoer

There is a maxim “Ex turpi causa non oritur actio” which says that “from an
immoral cause, no action arises”.

If the basis of the action by the plaintiff is an unlawful contract then he will not
succeed in his actions and he cannot recover damages.

If a defendant asserts that the claimant himself is the wrongdoer and is not
entitled to the damages, then it does not mean that the court will declare him
free from the liability but he will not be liable under this head.

In the case of Bird v. Holbrook[18], the plaintiff was entitled to recover

damages suffered by him due to the spring-guns set by him in his garden
without any notice for the same.

In Pitts v. Hunt[19], there was a rider who was 18 years of age. He encouraged
his friend who was 16 years old to drive fast under drunken conditions. But their
motorcycle met with an accident, the driver died on the spot. The pillion rider
suffered serious injuries and filed a suit for claiming compensation from the
relatives of the deceased person. This plea was rejected as he himself was the
wrongdoer in this case.
Inevitable accident ( 10 MARKS )
Accident means an unexpected injury and if the same accident could not have
been stopped or avoided in spite of taking all due care and precautions on the
part of the defendant, then we call it an inevitable accident. It serves as a good
defence as the defendant could show that the injury could not be stopped even
after taking all the precautions and there was no intent to harm the plaintiff.

In Stanley v. Powell[20], the defendant and the plaintiff went to a pheasant

shooting. The defendant fired at a pheasant but the bullet after getting reflected
by an oak tree hit the plaintiff and he suffered serious injuries. The incident was
considered an inevitable accident and the defendant was not liable in this case.

In Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha[21], the
premises which belonged to the plaintiff were let out to the defendant. The
tenant i.e. the defendant requested the landlord to repair the electric wirings of
the portion which were defective, but the landlord did not take it seriously and
failed to do so. Due to a short circuit, an accidental fire spread in the house. No
negligence was there from the tenant’s side. In an action by the landlord to
claim compensation for the same, it was held that this was the case of an
inevitable accident and the tenant is not liable.

In Shridhar Tiwari v. U.P. State Road Transport Corporation[22], a bus of

U.P.S.R.T.C. reached near a village where a cyclist suddenly came in front of
the bus and it had rained heavily so even after applying breaks the driver could
not stop the bus as a result of this the rear portion of the bus hit another bus
which was coming from the opposite side. It was known that there was no
negligence on the part of both the drivers and they tried their best in avoiding
the accident. This was held to be a case of inevitable accident. The defendant
i.e. U.P.S.R.T.C. was held not liable for this act.

In the case of Holmes v. Mather[23], the defendant’s horse was being driven by
his servant. Due to the barking of dogs, the horse became unmanageable and
started to bolt. In spite of every effort of the driver, the horse knocked down
the plaintiff. This makes it a case of an inevitable accident and the defendants
were held not liable for the incident.

In Brown v. Kendall[24], the dogs of the plaintiff and the defendant were
fighting with each other. The defendant tried to separate them and while doing
so, he accidentally hit the plaintiff in the eye causing him some serious injuries.
The incident was purely an inevitable accident for which no claim could lie. So,
the court held that the defendant is not liable for the injuries suffered by the
plaintiff as it was purely an accident.
In Padmavati v. Dugganaika[25], the driver of the jeep took the jeep to fill
petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to
some problem in the right wheel. The two strangers who took lift were thrown
out of the jeep and they suffered some injuries leading to the death of one
person.

The conclusions which came out of this case are:

 The master of the driver could not be made liable as it was a case of a
sheer accident and the strangers had voluntarily got into the vehicle.
 The principle of volenti non fit injuria was applicable here.
 It was a case of a sheer accident which no one could foresee.
In Nitro-Glycerine case[26], A firm of carriers i.e. the defendants, in this case,
was given a wooden case which was to carry from one place to another. The
contents of the box were unknown. There was some leakage in the box and the
defendants took the box to their office so that they can examine it. After taking
out the box, they saw that it was filled with Nitro-Glycerine and then it suddenly
exploded and the office building which belonged to the plaintiffs got damaged.
The defendants were held not liable for the same as the same could not be
foreseen.

In the case of Oriental Fire & General Ins. Co. Ltd. v. Raj Rani[27], the front
right spring and other parts of a truck broke all of a sudden and the driver could
not control it and dashed into a tractor that was coming from the opposite
direction. The driver and the owner of that truck could not prove that they had
taken all reasonable precautions while driving the truck. The court held that this
case comes under negligence and has nothing to do with the inevitable accident
and the defendant was liable.

Act of God ( 06 MARKS )

Act of God serves as a good defence under the law of torts. It is also recognized
as a valid defence in the rule of ‘Strict Liability’ in the case of Rylands v.
Fletcher[28].

The defence of Act of God and Inevitable accident might look the same but they
are different. Act of God is a kind of inevitable accident in which the natural
forces play their role and causes damage. For example, heavy rainfall, storms,
tides, etc.

Essentials required for this defence are:

  Natural forces’ working should be there.
 There must be an extraordinary occurrence and not the one which
could be anticipated and guarded against reasonably.

Working of natural forces

In Ramalinga Nadar v. Narayan Reddiar[29], the unruly mob robbed all the
goods transported in the defendant’s lorry. It cannot be considered to be an Act
of God and the defendant, as a common carrier, will be compensated for all the
loss suffered by him.

In Nichols v. Marsland[30], the defendant created an artificial lake on his land

by collecting water from natural streams. Once there was an extraordinary
rainfall, heaviest in human memory. The embankments of the lake got
destroyed and washed away all the four bridges belonging to the plaintiff. The
court held that the defendants were not liable as the same was due to the Act of
God.

Occurrence must be extraordinary

Some extraordinary occurrence of natural forces is required to plead the
defence under the law of torts.

In Kallu Lal v. Hemchand[31], the wall of a building collapsed due to normal

rainfall of about 2.66 inches. The incident resulted in the death of the
respondent’s children. The court held that the defence of Act of God cannot be
pleaded by the appellants in this case as that much rainfall was normal and
something extraordinary is required to plead this defence. The appellant was
held liable.

Statutory authority ( 06 MARKS )

If an act is authorized by any act or statute, then it is not actionable even if it
would constitute a tort otherwise. It is a complete defence and the injured party
has no remedy except for claiming compensation as may have been provided by
the statute.

Immunity under statutory authority is not given only for the harm which is
obvious but also for the harm which is incidental.
In Vaughan v. Taff Valde Rail Co.[41], sparks from an engine of the
respondent’s railway company were authorized to run the railway, set fire to the
appellant’s woods on the adjoining land. It was held that since they did not do
anything which was prohibited by the statute and took due care and precaution,
they were not liable.

In Hammer Smith Rail Co. v. Brand[42], the value of the property of the
plaintiff depreciated due to the loud noise and vibrations produced from the
running trains on the railway line which was constructed under a statutory
provision. The court held that nothing can be claimed for the damage suffered
as it was done as per the statutory provisions and if something is authorized by
any statute or legislature then it serves as a complete defence. The defendant
was held not liable in the case.

In Smith v. London and South Western Railway Co.[43], the servants of a

railway company negligently left the trimmings of hedges near the railway line.
The sparks from the engine set fire to those hedges and due to high winds, it
got spread to the plaintiff’s cottage which was not very far from the line. The
court held that the railway authority was negligent in leaving the grass hedges
near the railway line and the plaintiff was entitled to claim compensation for the
loss suffered.

Absolute and conditional authority

The authority given by a statute can be of two types:

 Absolute
 Conditional
In the case of Absolute authority, there is no liability if the nuisance or some
other harm necessarily results but when the authority is conditional it means
that the same is possible without nuisance or any other harm.

In the case of Metropolitan Asylum District v. Hil[44], the hospital authorities

i.e. the appellants were granted permission to set up a smallpox hospital. But
the hospital was created in a residential area which was not safe for the
residents as the disease can spread to that area. Considering it a nuisance an
injunction was issued against the hospital. The authority, in this case, was
conditional.
A legal remedy is one such treatment. When the aggrieved person is taken
back to the position that they were enjoying before their rights were infringed,
they are said to have been provided with a legal remedy. There are various
types of legal remedies. For instance, if something that belongs to you has been
taken away from you by a party, the court can either ask them to pay you back
in money, or ask them to return your belongings as they were, and may also
punish the party in some cases. There are two broad types of remedies in Tort
Law.

1. Judicial Remedies
2. Extra-Judicial Remedies

Judicial Remedies
As the term suggests, these are the remedies that the courts of law provide to
an aggrieved party. Judicial remedies are of three main types:

1. Damages
2. Injunction
3. Specific Restitution of Property

Extra-judicial Remedies
On the other hand, if the injured party takes the law in their own hand (albeit
lawfully), the remedies are called extra-judicial remedies. These are of five main
types:

1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
5. Distress Damage Feasant
Now, let us discuss both judicial and extrajudicial remedies in some detail.

Damages ( 10 MARKS )
Damages, or legal damages is the amount of money paid to the aggrieved party
to bring them back to the position in which they were, before the tort had
occurred. They are paid to a plaintiff to help them recover the loss they have
suffered. Damages are the primary remedy in a cause of action for torts. The
word “damages” should not be confused with the plural of the word “damage”,
that generally means ‘harm’ or ‘injury’.

Types of damages
Depending upon the ‘objective’ of the compensation, that is, whether the
plaintiff is to be compensated or the defendant has to be ‘punished’, there are 4
types of damages:

1. Contemptuous– contemptuous damages are also called ignominious

damages. The amount of money awarded by the court in this case is
very low, as to show the court’s disapproval, that is, when the plaintiff
himself is at some fault and cannot wholly be said to be ‘aggrieved’.
2. Nominal– Nominal damages are awarded when plaintiff’s legal right is
infringed, but no real loss has been caused to him. For example, in
cases of trespass, when damage has not been caused, a legal right is
still infringed. Here, the objective is not to compensate the plaintiff.
3. Substantial– Substantial damages are said to be awarded when the
plaintiff is compensated for the exact loss suffered by him due to the
tort.
4. Exemplary/Punitive– These are the highest in amount. Punitive
damages are awarded when the defendant has excessively been
ignorant of the plaintiff’s rights and great damage has been caused to
the defendant. The objective here is to create a public example and
make people cautious of not repeating something similar.

General and Special Damages

When there is a direct link between the defendant’s wrongful act and the loss
suffered by the plaintiff. For instance, a person A, due to his negligence, collides
his car with a person B, who has a rare bone condition. In this case, the actual
damage suffered by the plaintiff will be compensated, not taking into account
the rare bone condition of the plaintiff. General damages are ascertained by
calculating the amount of actual loss suffered by the plaintiff. For e.g, physical
pain and loss caused due to it, or if the quality of life of the plaintiff is lowered.

Special damages are awarded by proving special loss. There is no straitjacket

formula to derive the actual amount. The plaintiff just has to prove the loss
suffered by him/her. For e.g., medical expense, loss of wage (prospective),
repair or replacement of lost or damaged goods/property.

Damages for nervous or mental shock

Nervous shock
When, due to a negligent act or any other tortious act, a plaintiff’s nerves are
damaged due to shock and trauma, irrespective of whether a physical harm has
also been caused with it, he/she is entitled to be compensated for it. The
question before the court of law is whether the nervous shock is actually a
resulting consequence of the defendant’s act.

Mental shock
Mental shock, on the other hand is the shock to a person’s intellectual or moral
sense. Mental shock, too, can be compensated for in a suit for damages. Earlier,
it was thought that mental shock cannot really be compensated for, because it
cannot be measured, but recently the courts have recognized that the damage
in case of mental shock is just as real as a physical injury.

Cases
McLoughlin v O’Brian

The plaintiff’s husband and three children met with an accident with the
defendant, due to the defendant’s negligence. After seeing her husband and
children grievously injured, and hearing the news of one of her children’s death,
the plaintiff suffered nervous and mental shock and went into a state of clinical
depression. The House of Lords in this case ruled in favour of the plaintiff,
McLoughlin, whereby she recovered damages for her nervous shock too.

Gujarat State Road Transport Corporation, Ahmedabad v. Jashbhai

Rambhai

The plaintiffs in this case were relatives (mother and children) of a middle-aged
couple who met with an accident when another moving bus drove over them as
soon as they deboarded their own. The court delivered a judgement in favour of
the plaintiffs, and they received compensation under the heading of ‘Pain, Shock
and Sufferings’.

Measurement of Damages
There is no arithmetic formula to decide the quantum of damages. Therefore, a
number of factors, including the facts and circumstances of each case are to be
considered to ascertain the damages. Damages are therefore awarded at the
discretion of the court.

Remoteness of ‘Damage’
As discussed above, the main aim is to bring the aggrieved party back to the
status quo, that is, compensating the plaintiff. As a general rule, damage
suffered by the plaintiff should be a direct consequence of the defendant’s act.
Any action can have multiple following consequences. A person cannot be held
accountable for all the consequences resulting from his act. The remoteness of
consequences resulting from a person’s act has been an issue of debate in the
Law of Torts over the years. Various tests were developed over time to
determine what consequences of an act can a person be held liable for. When
there is no cause and effect relationship between the defendant’s act and the
injury caused to the plaintiff, the damage is said to be too remote to be
compensated.

Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)

In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to
the defendants. While unloading cargo from the ship, the defendant’s
employees accidentally knocked a plank into the ship, which caused a spark to
ignite, that resulted in an explosion. The question before the court was, whether
the damage due to the explosion was a direct result of the act of the
defendant’s employee.

Leisboch Case (Liesbosch Dredger v SS Edison)

In this case, the plaintiff’s dredger was damaged and sunk by the defendants
(Edison), due to their negligence. The dredger was working under a contract
with the terms that some amount had to be paid if the work was not completed
on time. The plaintiff did not have enough funds to arrange a new dredger to
complete the said work. They claimed all the resulting damages. The court held
that the plaintiff’s own lack of funds cannot be compensated by the defendants.
Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks &
Engineering Co.)

In this case, the defendants owned a ship (The Wagon Mound No. 1). The
plaintiffs were the owners of a dock named Morts Dock. Due to the defendant’s
negligence a spark was ignited that set some floating cotton waste nearby on
fire, due to which the plaintiff’s wharfs and their ship, the Wagon Mound was
damaged.

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into
the position that he/she was in before the injury due to the tort occurred, or in
other words, to bring him back to the position he would have been in, if the tort
did not ever occur.

Injunction
Injunction is an equitable remedy available in torts, granted at the discretion of
the court. An equitable remedy is one in which the court, instead of
compensating the aggrieved party,asks the other party to perform his part of
the promises. So, when a court asks a person to not continue to do something,
or to do something positive so as to recover the damage of the aggrieved party,
the court is granting an injunction. A very simple example is that of a court
ordering a company of builders to build on a land near a hospital, for the
construction sounds may be creating a nuisance to the hospital.

An injunction is an order of a court that restrains a person from continuing the

commission of a wrongful act, or orders the person to commit a positive act to
reverse the results of the wrongful act committed by him, that is, to make good
what he has wrongly done. To receive injunction against a party one must prove
damage or the possibility of prospective damage (apprehended damage). An
injunction can be temporary or permanent, and mandatory or prohibitory. Let
us discuss each of them one by one. Law relating to injunctions is found in the
Code of Civil Procedure, 1908 and from Section 37 to Section 42 of the Specific
Relief Act (henceforth referred to as the Act), 1963.

A suit of injunction can be filed against any individual, group or even the State.

According to the Section 37 of the Act there are two types of injunctions–
temporary and perpetual (permanent).
Temporary Injunction
A temporary or interlocutory injunction is granted during the pendency of a
case, to maintain the status quo and avoid further damage until the court
passes a decree. It prevents the defendant from continuing or repeating the
breach that he had been doing. A temporary injunction is granted to prevent the
party from suffering through the damages during the court proceedings. They
may be granted at any stage during the pendency of the case. Either of the
parties can seek an injunction to be granted.The power to grant a temporary
injunction is derived from Rule 1 and 2 of Order XXXIX (39) of the Code of Civil
Procedure. Certain principles are kept in mind while granting a temporary
injunction:

1. There has to be a prima facie case.

2. A balance of convenience has to be maintained. (That is, which party is
more at loss, etc.)
3. There has to be an irretrievable damage. (The damage has to be such
that cannot be compensated for, in money)

Cases in which temporary injunction is granted

A temporary injunction may be granted in any of the following cases:

 An injunction can be granted in favour of a party and against the

government if the government is barring the party from doing a lawful
act or freely exercising his rights.
 Under Section 80 of the CPC, an injunction can be granted against an
act done by a government/public officer working in his official capacity.
 When the property in dispute is in danger of being damaged or wasted
by either of the parties.
 In cases of tenancy. A plaintiff being unjustly removed as a tenant,
that is, not through the due legal process, can seek an injunction
against his/her landlords.
 In case of a continuing nuisance, where the defendant is asked to
discontinue his act of nuisance so as to prevent further damage to the
plaintiff while the case is being decided.
 In cases of trademark, copyright infringement, etc.
Permanent Injunction
A perpetual or permanent injunction is granted after the court has heard the
case from both sides and passes a decree. Here, since it is a court decree, it is
final and perpetually applicable. That is, the defendant cannot continue his
wrongful act, or has to do a positive act for perpetuity.

Cases in which permanent injunction is granted

 To avoid multiplicity of judicial proceedings.
 When damages do not adequately compensate the plaintiff.
 When the actual damage cannot be ascertained.

Mandatory Injunction
When the court has asked the party to do something, it is a mandatory
injunction. That is, when the court compels a party to perform a certain act so
as to bring back the aggrieved party or the plaintiff to the position that he/she
was in before the commission of the act of the defendant. For example, the
court may ask a party to make available some documents, or to deliver goods,
etc.

Prohibitory Injunction
When the court has asked the party to not do something, it is a prohibitory
injunction.The court prohibits a person, or refrains them from doing something
that is wrongful. For instance, it may ask the party to remove an object of
nuisance or to stop his act of nuisance.

When can injunctions not be granted

According to Section 41 of the Specific Relief Act, an injunction cannot be
granted:
 1. To stop a person from filing a case in the same court in which the
injunction suit is sought, unless such an injunction is being asked for,
to prevent a multiplicity of proceedings.
2. To restrain or stop a person from filing or fighting a case in a court that
is not subordinate to the one in which injunction is being sought.
3. To prevent a person from applying to any legislative body
4. To restrain a person from filing or fighting a criminal case
5. To prevent the breach of contract, performance of which is not
enforced specifically
6. To prevent an act that is not a clear act of nuisance
7. To prevent a continuing breach in which the plaintiff has himself
acquiesced
8. When an equally effective relief can be obtained in any other way or
through any other sort of proceeding
9. When the conduct of the plaintiff (or his agents) has been so wrongful
as to disentitle him from the assistance of the court.
10. When the plaintiff has no personal interest in the said matter.

Limitation period
According to Article 58 of the Limitation Act, 1963, the period of limitation for
filing an injunction suit is three years from when the ‘right to sue first accrues’,
that is, when the right to cause of action commences, not the cause of action
itself. It is an important question of law as to when the cause of action actually
arises. In the case of Annamalai Chettiar vs A.M.K.C.T. Muthukaruppan
Chettiar, it was held that the right to sue accrues “when the defendant has
clearly or unequivocally threatened to infringe the right asserted by the plaintiff
in the suit”.

Case:

M/S. Hindustan Pencils Pvt. Ltd. vs M/S. India Stationery Products

In this case, the plaintiff filed a suit for perpetual injunction against M/s. India
Stationery Products for infringement of their trademark on their product
‘Nataraj’, in respect of pencils, pens, sharpners, erasers, etc, claiming that the
trademark was adopted by them in 1961, and that the defendants had wrongly
got themselves registered a copyright similar to them. The court ruled in favour
of the plaintiff granting the defendant an interim injunction.

Specific Restitution of Property

The third judicial remedy available in the Law of Torts is that of Specific
Restitution of Property. Restitution means restoration of goods back to the
owner of the goods. When a person is wrongfully dispossessed of his property
or goods, he is entitled to the restoration of his property.

Extra-Judicial Remedies
When a person can lawfully avoid or remedy himself without the intervention of
courts, the remedies are called extra-judicial remedies. In this, the parties take
the law in their own hands. Some examples are:

Expulsion of trespasser
A person can use a reasonable amount of force to expel a trespasser from his
property. The two requirements are:

 The person should be entitled to immediate possession of his property.

 The force used by the owner should be reasonable according to the
circumstances.
Illustration: A trespasses into B’s property. B has the right to use reasonable
force to remove him from his property and re-enter himself.

Re-entry on land
The owner of a property can remove the trespasser and re enter his property,
again by using a reasonable amount of force only.

Re-caption of goods
The owner of goods is entitled to recapture his/her goods from any person
whose unlawful possession they are in. Re-caption of goods is different from
specific restitution in that it is an extra-judicial remedy, in which the person
need not ask the court for assistance, instead, takes the law in his own hands.

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to

use reasonable force to get them back from A.

Abatement
In case of nuisance, be it private or public, a person (the injured party) is
entitled to remove the object causing nuisance.

Illustration: A and B are neighbours. Branches of a tree growing on A’s plot

enter B’s apartment from over the wall. After giving due notice to A, B can
himself cut or remove the branches if they’re causing him nuisance.

Distress Damage Feasant

Where a person’s cattle/other beasts move to another’s property and spoil his
crops, the owner of the property is entitled to take possession of the beasts
until he is compensated for the loss suffered by him.

Conclusion
In torts, the object behind remedying a party is to take the aggrieved party
back to the status or position that they were enjoying before the occurrence of
tort. It is not to punish the defendant, as in crime. Remedies can be judicial and
extrajudicial. When due process of law is required for a party to gain remedy,
and the courts are involved, the remedies are called judicial remedies. When
the law is taken in his/her own hands by the parties, they are called extra-
judicial remedies.
NUSIANCE ( 10 MARKS )
According to Salmond, nuisance consists in causing or allowing to cause
without lawful justification, the escape of any deleterious thing from one’s land
or from anywhere into land in possession of the plaintiff, such as water, smoke,
gas, heat, electricity, etc.

Essential elements of Nuisance

Wrongful act
Any act which is done with the intention to cause the infringement of the legal
rights of another is considered to be a wrongful act.

Damage or loss or annoyance caused to another

individual.
Damage or loss or annoyance must be such which the law should consider as a
substantial material for the claim.

Kinds of Nuisance

1. Public Nuisance
The Indian Penal code defines nuisance as an act which causes any common
injury, danger or annoyance, to the people in general who dwell or occupy the
property, in the vicinity, or which must necessarily cause injury, obstruction,
danger, or annoyance to the people who may have occasion to use any public
right.

Public nuisance affects the society and the people living in it at large, or some
considerable portion of the society and it affects the rights which the members
of the society might enjoy over the property. The acts which seriously affects or
interferes with the health, safety or comfort of the general public is a public
nuisance.
Instances where an individual may have a private right of action in respect to a
public nuisance:

 He must show the existence of any personal injury which is of a higher

degree than the rest of the public.
 Such an injury has to be direct and not just a consequential injury.
 The injury must be shown to have a huge effect.

2. Private Nuisance
Private Nuisance is that kind of nuisance in which a person’s use or enjoyment
of his property is ruined by another. It may also injuriously affect the owner of
the property by physically injuring his property or by affecting the enjoyment of
the property. Unlike public nuisance, in private nuisance, an individual’s usage
or enjoyment of property is ruined as distinguished from the public or society at
large. The remedy for private nuisance is a civil action for damages or an
injunction or both.

Elements which constitute a private nuisance

 The interference must be unreasonable or unlawful. It is meant that
the act should not be justifiable in the eyes of the law and should be by
an act which no reasonable man would do.
 Such interference has to be with the use or enjoyment of land, or of
some rights over the property, or it should be in connection with the
property or physical discomfort.
 There should be seeable damage to the property or with the enjoyment
of the property in order to constitute a private nuisance.
Case Law: Rose v. Miles(1815) 4M &S. 101

The defendant had wrongfully obstructed a public navigable creek which

obstructed the defendant from transporting his goods through the creek due to
which he had to transport his good through land because of which he suffered
extra costs in the transportation. It was held that the act of the defendant had
caused a public nuisance as the plaintiff successfully proved that he had
incurred loss over other members of the society and this he had a right of
action against the defendant.

A nuisance may be in respect of either property or physical discomfort

1. Property
In the case of a nuisance with respect to the property, any sensible injury to the
property will be enough to support an action for the damages.

2. Physical discomfort
In a suit of nuisance arising out of physical discomfort, there are two essential
conditions required.

 In excess of the natural and ordinary course of enjoyment of

the property.
The usage by the third party should be of out of the natural course of
enjoyment from one party.

 Interfering with the ordinary conduct of human existence.

The discomfort should be of such a degree that it would affect an individual in
the locality and people would not be able to put up or tolerate with the
enjoyment.

Case Law: Radhey Shyam v. Gur Prasad AIR 1978 All 86

Mr Gur Prasad Saxena and another filed a suit against Mr Radhey Shyam and
five other individuals for permanent injunction restraining the defendant from
installing and running a flour mill in the premises occupied by the defendant.
Gur Prasad Saxena filed another suit against Radhey Shyam and five other
individuals for a permanent injunction from running and continuing to run an oil
expeller plant. The plaintiff has alleged that the mill was causing a lot of noise
which in turn was affecting the health of the plaintiff. It was held that by
running a flour mill in a residential area, the defendant was causing a nuisance
to the plaintiff and affecting his health severely.

What are the defences available to

Nuisance?
There are many valid defences available to an action for tort, these are:
1. Prescription
 A prescription is a title acquired by use and time and which is allowed
by the law, a person claims any property because his ancestors have
had the possession of the property by law.
 Prescription is a special kind of defence, as, if a nuisance has been
peacefully and openly been going on without any kind of interruption
then the defence of prescription is available to the party. On the
expiration of this term of twenty years, the nuisance becomes
legalised as if it had been authorised in its commencement by a grant
from the owner of the land.
 The essence of prescription is explained in Section 26 of the limitations
act and Section 15 of the Easements Act.
There are three essentials to establish a person’s right by prescription, these
are

1. Use or enjoyment of the property: The use or enjoyment of the

property must be acquired by the individual by law and the use or
enjoyment must be done openly and peacefully.
2. Identity of the thing/property enjoyed: The individual should be
aware of the identity of thing or property which he or she is peacefully
or publically enjoying.
3. It should be unfavourable to the rights of another
individual: The use or enjoyment of the thing or property should be of
such a nature that it should be affecting the rights of another individual
thus causing a nuisance and even after knowing of such a nuisance
being caused there must’ve been no action taken against the person
causing it for at least twenty years.

2. Statutory authority
 When a statute authorises the doing of a particular act or the use of
land in a way, all the remedies whether by action or indictment or
charge, are taken away. Provided that every necessary reasonable
precaution has been taken.
 The statutory authority may be either absolute or conditional.
 When there is an absolute authority, the statue allows the act and it is
not necessary that the act must cause a nuisance or any other form of
injury.
  Whereas in the case where there is a conditional authority, the state
allows the act to be done only if it can be done without any causation
of nuisance or any other form of injury.

What are the remedies for nuisance?

There are three kinds of remedies available in the case of a nuisance, these are:

1. Injunction
An injunction is a judicial order restraining a person from doing or continuing an
act which might be threatening or invading the legal rights of another. It may
be in the form of a temporary injunction which is granted on for a limited period
of time which may get reversed or confirmed. If it is confirmed, then it takes
the form of a permanent injunction.

2. Damages
The damages may be offered in terms of compensation to the aggrieved party,
these could be nominal damages. The damages to be paid to the aggrieved
party is decided by the statue and the purpose of the damages is not just
compensating the individual who has suffered but also making the defendant
realise his mistakes and deter him from repeating the same wrong done by him.

3. Abatement
Abatement of nuisance means the removal of a nuisance by the party who has
suffered, without any legal proceedings. This kind of remedy is not favoured by
the law. But is available under certain circumstances.

This privilege must be exercised within a reasonable time and usually requires
notice to the defendant and his failure to act. Reasonable for may be used to
employ the abatement, and the plaintiff will be liable if his actions go beyond
reasonable measures.

Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land
which overtime outgrows and reaches the land of Ace. Now Ace has every right
to cut that part of the tree which is affect his enjoyment of his land with prior
notice to Beck. But if Ace goes to Beck, land without his permission, and chops
off the entire tree which then falls on the land of Beck, then Ace shall be in the
wrong here as his action taken would be beyond reasonableness.
Nuisance and Trespass – Distinguished
1. Trespass, on one hand, is the direct physical interference with the
plaintiff’s possession of the property through some material or tangible
object whereas, in the case of a nuisance, it is an injury to some right
of the possession of the property but not the possession itself.
2. Trespass is actionable per se (actions which do not require allegations
or proof), whereas, in the case of a nuisance, only the proof of actual
damage to the property is required.
Example: Simply entering on another individual’s property without the owner’s
consent and without causing him any injury would be trespass whereas if there
is an injury to the property of another or any interference with his enjoyment of
the property, then it will amount to a nuisance.

3. If the interference with the use of the property is direct, then the wrong is
trespass. Whereas if the interference with the use or enjoyment of the property
is consequential then it will amount to a nuisance.

Example: Planting a tree on someone else’s land would amount to trespass

whereas if a person plants a tree on their own land which then outgrows to the
land of another would amount to a nuisance.

Case Law: Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra

Mandal AIR 1978 Guj 13, (1977) GLR 424.

In this case, the plaintiff had sued the defendant for a permanent injunction to
restrain the defendant from showing a movie named “Jai Santoshi Maa”. It was
said by the plaintiff that the contents of the movie significantly hurt the religious
sentiments of the people belonging to the Hindu community as well as the
religious sentiments of the plaintiff as the movie showed Hindu Goddess’ Laxmi,
Parvati, and Saraswati, to be jealous of one another and were ridiculed in the
film. It was held that hurt to religious sentiments was not an actionable wrong.

Conclusion
The concept of nuisance arises commonly in everyone’s daily life, in fact, the
Indian courts have borrowed quite a lot from the English principles as well as
from the decisions of the common law along with creating their own precedents.
This has helped the concept of nuisance in the field of law develop quite
extensively and assures the fairness and well being of all the parties which may
be involved such as in the case of Private nuisance, the party which is being
affected, as well as, in the case of public nuisance, where the society at large is
being affected.

Negligence ( 10 MARKS )
According to Winfield and Jolowicz, Negligence is the breach of a legal duty of
care by the plaintiff which results in undesired damage to the plaintiff.

In Blyth v. Birmingham Water Works Co, Negligence was defined as the

omission to do something which a reasonable man would do or doing something
which a prudent or reasonable man would not do.

Essentials of negligence
To commit the tort of negligence, there are primarily 6 main essentials that are
required. An act will be categorized as negligence only if, all the conditions are
satisfied namely –

1) Duty Of Care
It is one of the essential conditions of negligence in order to make the person
liable.
It means that every person owes, a duty of care, to another person while
performing an act. Although this duty exists in all acts, but in negligence, the
duty is legal in nature and cannot be illegal or unlawful and also cannot be of
moral, ethical or religious nature.

In the case of Stansbele vs Troman(1948), A decorator was engaged to carry

out decorations in a house. Soon after The decorator left the house without
locking the doors or informing anyone. During his absence, a thief entered the
house and stole some property the value of which the owner of the house
claimed from the decorator. It was held that the decorator was liable as he was
negligent in leaving the house open and failed his duty of care.

2)The Duty must be towards the plaintiff

A duty arises when the law recognizes a relationship between the defendant and
the plaintiff and requires the defendant to act in a certain manner toward the
plaintiff. It is not sufficient that the defendant owed a duty of care towards the
plaintiff but it must also be established which is usually determined by the
judge.
In the case of Bourhill v. Young (1943) the plaintiff who was a fishwife got down
from a tram car and while she was being helped in putting her basket on her
back, a motor-cyclist after passing the tram collided with a motor car at a
distance of 15 yards which was on the other side of the tram. The motorcyclist
died instantly and the plaintiff could not witness the accident or the dead body
since the tram was standing between her and the place where the accident
occurred. She had only heard the sound of the collision and once the body had
been removed from the place of accident, she visited the place and saw some
blood which was left on the road. As a reaction to this incident, she suffered a
nervous shock and gave birth to a still-born child of 8 months because of which
she sued the representatives of the deceased motorcyclist. It was held that the
deceased had no duty of care towards the litigant and therefore she could not
claim any damages from the deceased’s representatives.

The case of Donoghue v. Stevenson (1932) has evolved the principle that we
each have a duty of care to our neighbor or someone we could reasonably
expect to be affected by our acts or omissions. It was held that, despite no
contract existed between the manufacturer and the person suffering the
damage an action for negligence could succeed since the plaintiff was successful
in her claim that hat she was entitled to a duty of care even though the
defective good i.e a bottle of ginger beer with a snail in it was bought, not by
herself, but by her friend.

3)Breach of Duty to take care

It’s not enough for a plaintiff to prove that the defendant owed him a duty of
care but he must also establish that the defendant breached his duty to the
plaintiff. A defendant breaches such a duty by failing to exercise reasonable
care in fulfilling the duty. In other words, the breach of a duty of care means
that the person who
has an existing duty of care should act wisely and not omit or commit any act
which he has to do or not do as said in the case of Blyth v. Birmingham
Waterworks Co, (1856). In simple terms, it means non-observance of a
standard of care.

In the case of Ramesh Kumar Nayak vs Union of India(1994), The post

authorities failed to maintain the compound wall of a post office in good
condition on the collapse of which the defendant sustained injuries. It was held
that postal authorities were liable since that had a duty to maintain the post
office premises and due to their breach of duty to do so, the collapse occurred.
Hence they were liable to pay compensation.
In the case of Municipal Corporation of Delhi v. Subhagvanti (AIR 1966)
A very old clock tower situated right in the middle of a crowded area of Chandni
Chowk suddenly collapsed thereby causing the death of many people. The clock
tower was 80 years old although the normal life span of the clock tower should
have been 40-45 years. The clock tower was under the control of The Municipal
Corporation of Delhi and they had a duty of care towards the citizens. By
ignoring to repair the clock tower, they had breached their duty of care toward
the public and were thereby liable

4)Actual cause or cause in fact

In this scenario, the plaintiff who is suing the defendant for negligence has the
liability to prove is that the defendant’s violation of duty was the actual cause of
the damages incurred by him.
This is often called the “but-for” causation which means that, but for the
defendant’s actions, the plaintiff would not have incurred the damages.
For example, When a bus strikes a car, the bus driver’s actions are the actual
cause of the accident.

5)Proximate cause
Proximate cause means “legal cause,” or the cause that the law recognizes as
the primary cause of the injury. It may not be the first event that set in motion
a sequence of events that led to an injury, and it may not be the very last event
before the injury occurs. Instead, it is an action that produced foreseeable
consequences without intervention from anyone else. A defendant in a
negligence case is only responsible for those damages that the defendant could
have foreseen through his actions.
In the case of Palsgraf vs Long Island Railroad Co(1928), A man was hurrying
while trying to catch a train and was carrying a packed item with him. The
employees of the railway saw the man who was attempting to board the train
and thought that he was struggling to do so. An employee on the rail car
attempted to pull him inside the train while the other employee who was on the
platform attempted to push him to board the train. Due to the actions of the
employees, the man dropped the package. Which had contained fireworks, and
exploded when it hit the rails. Due to the explosion, the scales fell from the
opposite end of the station and hit another passenger, Ms. Palsgraf, who then
sued the railway company. The court held that Ms. Palsgraf was not entitled to
damages because the relationship between the action of the employees and the
injuries caused to him were not direct enough. Any prudent person who was in
the position of the railway employee could not have been expected to know that
the package contained fireworks and that attempting to assist the man the
railcar would trigger the chain of events which lead to Ms. Palsgraf’s injuries.

6)Consequential harm to the plaintiff

Proving that the defendant failed to exercise reasonable care is not enough. It
should also be proved that the failure of the defendant to exercise reasonable
care resulted in damages to the plaintiff to whom the defendant owed a duty of
care.

The harm may fall into the following classes:-

a.)Bodily harm
b.) Harm to the reputation
c.) Harm to property
d.) Financial Loss
e.) Mental Harm.

When such damage is proved, the defendant is bound to compensate the

plaintiff for the damages occurred.

In the case of Joseph vs Dr. George Moonjely(1994) The Kerela high court
awarded damages amounting to Rs 1,60,000 against a surgeon for performing
an operation on a 24-year-old girl without following proper medical procedures
and not even administering local anaesthesia.

Res ipsa loquitur

Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court
to determine that the negligence of the defendant led to an unusual event that
subsequently caused injury to the plaintiff. Although generally the duty to prove
that the defendant acted negligently lies upon the plaintiff but through res ipsa
loquitur, if the plaintiff presents certain circumstantial facts, it becomes the
burden of the defendant to prove that he was not negligent.

This doctrine arose out of the case of Byrne vs Boadle(1863)

The plaintiff was walking by a warehouse on the road and suffered injuries from
a falling barrel of flour which rolled out of a window from the second floor. At
the trial, the plaintiff’s attorney argued that the facts spoke for themselves and
demonstrated the warehouse’s negligence since no other explanation could
account for the cause of the plaintiff’s injuries.

Thus the following are the three essential requirements for the application of
this maxim-

1) The thing causing the damage must be under the control of the defendant or
his servants
2)The accident must be such as would not have happened in the ordinary
course of things without negligence.
3)There must be no evidence of the actual cause of the accident.

Defenses available in a suit for negligence

1)Contributory negligence by the plaintiff

Contributory negligence means that when the immediate cause of the damage
is the negligence of the plaintiff himself, the plaintiff cannot sue the defendant
for damages and the defendant can use it as a defense. This is because the
plaintiff in such a case is considered to be the author of his own wrong. It is
based on the maxim volenti non fit iniuria which states that if someone willingly
places themselves in a position which might result in harm, they are not entitled
to claim for damages caused by such harm.

The plaintiff is not entitled to recover from the defendant if it is proved that-

1)The plaintiff by the exercise of ordinary care could have avoided the
consequence of the defendant’s negligence.
2)The defendant could not have avoided the consequence of the plaintiff’s
negligence by an exercise of ordinary care
3)There has been as much want of reasonable care on the plaintiffs part as on
the defendants part and the former cannot sue the latter for the same.

The burden of proving contributory negligence rests on the defendant in the

first instance and in the absence of such evidence, the plaintiff is not bound to
prove its non-existence

In the case of Shelton Vs L & W Railway(1946) , while the plaintiff was crossing
a railway line, a servant of the railway company who was in charge of crossing
shouted a warning to him. Due to the plaintiff being deaf, he was unable to hear
the warning and was consequently injured. The court held that this amounted to
contributory negligence by him.

2) An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount
of human foresight could have been foreseen and if foreseen could not by any
amount of human care and skill have been resisted. Thus such acts which are
caused by the basic forces of nature come under this category.For example
storm,tempest,extraordinary high tide,extraordinary rainfall etc.

If the cause of injury or death of a person is due to the happening of a natural

disaster, then the defendant will not be liable for the same provided that he
proves the same in the court of law. This particular defence was talked in the
case of Nichols v. Marsland (1876) in which the defendant had a series of
artificial lakes on his land. There had been no negligence on the part of the
defendant in the construction and maintenance of the artificial lakes. Due to
unpredictable heavy rain, some of the reservoirs burst and swept away four
country bridges. It was held by the court that the defendant could not be said to
be liable since the water escaped by the act of God.

3) Inevitable Accident
An inevitable accident can also be called as a defense of negligence and refers
to an accident that had no chance of being prevented by the exercise of
ordinary care, caution, and skill. It means a physically unavoidable accident.

In the case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were
fighting and their owners attempted to separate them. In an effort to do so,
Defendant beat the dogs with a stick and accidentally injured the Plaintiff,
severely injuring him in the eye. The Plaintiff brought suit against the Defendant
for assault and battery. It was held that the injury of the plaintiff was as a result
of an inevitable accident.

Conclusion
Negligence as a tort has evolved from the English law and accepted by the
Indian law as a substantially important tort. As discussed negligence is of two
types, civil and criminal and each has various repercussions. In order to prove
that an act was negligent, it is necessary to prove all the essentials namely
duty, breach of duty, damages and actual and proximate cause. An important
maxim regarding negligence i.e Res Ipsa Loquitur is used by the courts when a
negligent act cannot be explained. Also, the defences in a suit for negligence
can be used by the defendant to defend himself from a suit issued by the
plaintiff.

What is Defamation? ( 10 MARKS )

Introduction
Defamation as the meaning of the word suggests is an injury to the
reputation of a person resulting from a statement which is false. A man’s
reputation is treated as his property and if any person poses damage to
property he is liable under the law, similarly, a person injuring the reputation of
a person is also liable under the law. Defamation is defined in section 499 of
Indian Penal Code 1860 and section 500 provides that a person committing an
offense under this section is liable with simple imprisonment for a term of 2
years or fine or with both.

Essentials of Defamation
A. The statement must be defamatory

The very first essential of the offense of defamation is that the statement must
be defamatory i.e. which tends to lower the reputation of the plaintiff. The test
to check if a particular statement is defamatory or not will depend upon
how the right thinking members of society are likely to take it. Further, a
person cannot take a defense that the statement was not intended to be
defamatory, although it caused a feeling of hatred, contempt or dislike.

In the Case of Ram Jethmalani v. Subramanian Swamy court held Dr. Swamy to
be liable for defaming Mr. Jethmalani by saying that he received money from a
banned organization to protect the then CM of Tamil Nadu in the case of the
assassination of Rajiv Gandhi. In another recent case of Arun Jaitley v Arvind
Kejriwal, the court held the statement said by Arvind Kejriwal and his 5 other
leaders to be defamatory. However, the matter was finally disclosed after all the
defendants apologized for their actions.

Illustration
A publishes an advertisement in a local newspaper stating false information that
the company of B has committed fraud of Rs 20,00,000. Now, this statement
will amount to defamation as this newspaper will be read by many readers and
will surely injure the reputation of B’s company.

However, it is to be noted that mere hasty expression spoken in anger,

or vulgar abuse to which no hearer would attribute any set purpose to
injure the character would not amount to defaming a person.

Illustration

If A an employer scolds his employee B for not coming on time in front of the
whole staff, then B cannot take the plea that A has injured the reputation of B.

B. The statement must refer to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of
which he Complains referred to him, it will be immaterial that the defendant did
not intend to defame the plaintiff. If the person to whom the statement was
published could reasonably infer that the statement referred to him, the
defendant will then be liable

Illustration- If A, a bank publishes a notice to all its branches to not give the
loan to any person from xyz as the people of xyz are more often repeated
defaulters. Now due to this B, a resident of xyz has suffered a huge loss. Now B
can hold A liable for defaming him although the bank did not directly focus on
him.

In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen Court held the
defendants liable for publishing a statement without any intention to defame the
defendants. The statement mentioned that a particular person carrying business
of Agarbathis to Ceylon has been arrested for the offense of smuggling. The
plaintiff was also one of the person carrying on a similar business, and as a
result of this statement his reputation also severely damaged.

C. The statement must be published

Publication of defamatory statement to some person other than the person

defamed is a most important aspect for making any person liable, and unless
that is done, no action for defamation will lie.
However, if a third person wrongfully reads a letter meant for the plaintiff, then
the defendant likely to be liable. But if the defamatory letter sent to the plaintiff
is likely to be read by somebody else, there will be a valid publication.

In the case of Mahendra Ram v. Harnandan prasad the defendant was held
liable for sending a defamatory letter to plaintiff written in Urdu knowing that
the plaintiff did not knew Urdu and the letter will very likely be read over by
another person.

Forms of Defamation
1. Slander– It is the publication of a defamatory statement in a
transient form For example- Defaming a person by way of words
or gestures.
2. Libel– It is the representation made in some permanent form.
For example- Defaming a person through a representation made in some
permanent form like writing, printing etc.

English law on libel and slander

Under English criminal law, libel is treated as a crime but slander is not. Slander
is only a civil wrong. This distinction between libel and slander is mainly on two
reasons-

1. Under Criminal law, only libel has been recognized as an offense.

Slander is no offense.
2. Under the law of torts, slander is actionable, except in few cases where
special damage has to be proved. Libel is always actionable i.e. without
any proof. However, slander is also actionable in the following 4 cases:

 Imputation of a criminal offense to the plaintiff.

 Imputation of an infectious disease to the plaintiff which has the effect
of preventing others from associating with the plaintiff. Example A
makes a statement in his office that his colleague is suffering from
AIDS. He can here be liable for defaming his colleague.
 The imputation that a person is incompetent, dishonest or unfit in
regard to the office, profession, trade or business carried on by him.
 Imputation of unchastity or adultery to any woman or girl.
Indian law on Libel and Slander
Unlike English law, Indian law does not make any distinction between libel and
slander and both are treated as criminal offenses under section 499 IPC. In the
case of Hirabai Jehangir v. Dinshawdulji the Bombay and Madras high court
both held that no distinction needs to be made between treating libel and
slander as criminal offenses.

Innuendo
A statement is prima facie defamatory when its natural and obvious meaning
leads to that conclusion. Sometimes it may happen that the statement was
prima facie innocent but because of some secondary meaning, it may be
considered to be defamatory. For this secondary instance plaintiff must prove
the secondary meaning i.e. innuendo which makes the statement defamatory.

Illustrations

Z makes a statement that X is an honest man and he never stole my watch.

Now this statement is at first instance may be innocent, but it can be
defamatory if the person to whom it was made, interprets from this that X is a
dishonest man having stolen the watch.

Defamation of class of persons

When particular words spoken are referred to a group of individuals or a class of
persons, then no single person of that group or class can sue unless he proves
that the words could reasonably be considered to referring him.

Illustration- If a person wrote that all doctors were thieves, then no particular
doctor could sue him unless there was something that pointed out that the
person actually intended to defame him individually.

This situation will be different if the person wrote that all doctors of Ganga ram
hospital are thieves and then doctors of Ganga ram hospital can sue him for
defaming them.

Communication between husband and wife

In the eyes of law, both husband and wife are one person and the
communication of a defamatory matter from the husband to the wife or vice
versa is no publication and will not come within the purview of section
499. Section 122 of the Indian Evidence Act 1872 deals with privileged
communications between husband and wife and makes them out of the scope of
section 499 except in suits between married persons, or in a proceeding
in which one married person is prosecuted for any crime committed
against the other.

In a leading case of T.J. Ponnen v. M.C Verghese the court held that the letter
from husband to his wife containing defamatory matter concerning the father-
in-law will not amount to defamation. It will very much be covered within the
scope of privileged communications between husband and wife as laid in section
122 of the Indian Evidence Act 1872.

Defenses to defamation
The defenses to an action for defamation are

1. Justification of truth
2. Fair comment
3. Privilege
Justification of truth

In a civil action for defamation, the truth of the defamatory matter is a

complete defense and the reason for this is that “ Law will not permit a man to
recover damages for something being true about him “.

Under criminal law on the other hand merely proving that the statement was
true is not a good defense and besides this, the defendant has to show that it
was made for public good also.

If the defendant is not able to prove the truth of the facts, the defense cannot
be availed. In the case of Radheyshyam Tiwari v. Eknath court held the
defendants for publishing defamatory matter against the defendants. Later the
defendants were not able to prove that the facts published by him were true
and, therefore he was held liable.

Fair comment
Making a fair comment on matters public interest is a valid defense to an action
for defamation. For this, the following must be proved

 It must be a comment i.e, an expression of opinion rather than

an assertion of fact
For example, If X says that A has been guilty of breach of trust and therefore he
is a dishonest man. Here the latter words are a comment on the former. But if A
did not commit any breach of trust and X still says to him as a dishonest man.
Then it will not be a comment and will amount to an assertion of fact.

 The comment must be fair

The comment should be fair i.e. should not be based upon untrue facts.

For example, X publishes serious allegations of bribery against Y in a

newspaper. Later X is not able to prove the truthness of these allegations and
therefore his comment will not amount to fair comment.

 The matter commented upon must be of public interest-

The matter on which the defendant has commented must be of public interest.
Matters like administration of government departments, courts, ministers,
public meetings, textbooks, etc are considered to be matters of public interest.

Privilege

As the word suggests itself i.e. giving special status. These special occasions
when the law recognizes that the right of free speech outweighs the plaintiffs
right to defamation and a defamatory statement made on such occasion is not
actionable. Privileges are of two types.

1. Absolute privileges– In matters of these complete immunity is given to

person speaking and no action for defamation can lie against him. It includes 3
aspects

 Parliamentary proceedings– Article 105(2) of the Indian constitution

gives immunity to parliamentarians to speak anything during the
course of business of parliament and no action would lie against them.
 Judicial proceedings– This protection has been given to judges
under judicial officers protection act of 1850. It also extends to
counsels, witnesses, and parties to a suit.
 2. Qualified privilege– This privilege is also available and under this, it
is necessary that the statement must have been made without a
malice i.e a wrongful intention.
For example, A, a shopkeeper, says to B, who manages his business, “ Sell
nothing to Z unless he pays you ready money, as I am doubtful of his honesty.
Now A will fall under this exception if he has made his imputation on Z in good
faith for the protection of his own interest.

Conclusion
After analyzing all the key aspects of defamation as laid in section 499 IPC, we
have found that the essence of defamation lies in the injury to the reputation of
a person. And for this injury, he can very much sue the defendants. Defamation
is of two types libel and slander. Both are considered as criminal offenses in
India. There are certain exceptions to this known as privilege.

Assault and Battery ( 10 MARKS )

Both assault and battery are the types of intentional tort. The assault is
generally an attempt to harm someone else which also includes threats against
other people. So, assault is a planned attempt to violently harm another person.
While the battery is intentional touching another person without the person’s
consent. In the battery, the personal liberty of the person is compromised to
cause physical harm to the person.

Difference between Assault and Battery

Assault and battery are like two sides of a coin. They are in a way similar to
each other and are also totally different from each other.

S.
Assault Battery
No.

The sole intention is to threaten

1. It is used to harm the person.
the person.

2. No physical contact required. Physical contact is mandatory.

3. Trying to punch a person is an Actually punching the person is considered

 assault. as a battery.

Battery
Purposely touching or applying force on other persons or things related to the
person without his consent with the intention to harm the person is known as a
battery. It is only considered when there is an actual physical contact without
the consent of the person to harm the person. Generally, assault is followed by
the battery which is the reason assault and battery are mostly used together.

The battery is often considered as trespass to a person, so it is divided into two

types:

 Criminal Battery
 Civil Battery

Criminal Battery
Criminal Battery is also known as the battery as a crime. Whenever there is an
intention to kill a person or to hurt the person with an offensive physical contact
is considered as the battery of crime. In a criminal battery, intention plays a
major role as the action involves intention to kill a person.

Civil Battery
Civil Battery is also known as the battery as a tort because it is a civil wrong.
When a person has no intention to hurt someone but commits an act which
hurts another person and the wrongdoer had an idea that the act will hurt
another person is known as a civil battery. As the battery is considered as an
intentional tort, but in the civil battery the ,intention to hurt someone is not
present, so the victim can lodge a complaint against the wrongdoer under civil
court.
Essentials of Battery
Essentials for the battery are:

Intention
The intentions for both civil battery and criminal battery are different. Criminal
intent to cause the injury is not necessary but the intention to cause the act
which harms the person is required as it results in the battery.

The intent of the battery is transferable as when a person tries to hit a person
without his consent and he ends up hitting a different person, but the person is
still liable for battery. So, the intention is the soul of battery and is very
essential.

Contact
Contact or use of force is necessary for committing battery. Harm through the
force is not basic requirement but the use of force is basic requirement to
conduct battery. It is not necessary that the contact must be physical or
individual but the physical contact through indirect ways is also considered as
physical contact. As the use of sticks or spitting on someone is also considered
as a battery. Harming the people with changing the heat, odor, light is also
considered as a battery.

The battery doesn’t need body-to-body contact as the battery can also be for
future events which means if there is a delay between the accused actions and
the injury of the complainant will still be a battery. For eg, A mixes something
harmful in the food of B even after he knows the fact that B will eat that, A has
committed a battery against B.

Harm
Damage is necessary for the completion of the battery. Damage can be of any
kind, it can be physical, mental, or emotional. Battery is not limited to physical
damage. The victim must have suffered in any manner but the harm can be
minimum, severe damages are not required. Unwanted sexual contact or
uncomfortable touching without the consent also comes under battery as it
harms the person physically, emotionally, and mentally.
No Consent
The victim must not know about the action which is planned by the accused.
The battery is only committed when the victim had no idea about the contact
which was going to happen. For example, when surgeons steal organs from
patients to sell them will be considered as a battery. And when the doctor while
doing a surgery finds that the appendix in the body will cause some trouble
during the surgery and the doctor informs the patient that he is going to
remove the appendix, in this situation, the doctor is not liable for the battery as
there was the consent of patient involved.

No Lawful Justification
In the event of proving battery, there mustn’t be any legal justification present
to justify the actions of the accused. The complainant has to prove that the
force used by the accused was unlawful and was not justifiable. For example, A
and B were walking side by side, suddenly B started fighting with A, in this
situation B is liable for battery but in the other situation when they were passing
and there was an unintentional touch without harming anyone, in this situation,
there wasn’t any battery. So, unintentional damages or damages by accidents
are not actionable.

Defenses
There are certain defenses given to the accused to prevent themselves from
wrongful accusation:

Self Defense
Self-Defense is the most common defense which is used in assault and battery
cases. It means to protect yourself from unlawful force implied by other people.
In this defense, it is proved that the defendant was safeguarding himself from
the unlawful force of the complainant. But in this case, the defendant must
prove that he did not provoke the other person and there was absolutely no
other way to save himself.

For example, A started a fight with B, in his defense B attacked A with a stick
and ran away, in this situation B is not liable for the battery as the attack was
justified and was in self-defense.
There are many limitations to the doctrine of self-defense, as the force used in
the name of self-defense must be reasonable and proportional to the threat
compared to the victim. You can not do anything in the name of self-defense, as
there are limitations to the defense. And the defendant has to meet all the
essentials to use the defense of self-defense.

Essentials
Essentials of self-defense are:

 The threat of unlawful for or damages.

 Reasonable fear of harm.
 No provocation by the accused.
 No other way to save himself.

Defense of Others
This defense is similar to self-defense, as in this defense the defendant is trying
to save another individual, not himself. In this defense, there must be an
honest and reasonable fear of harm to another person.

Defense of Property
This defense is also very similar to self-defense, as in this defense the
defendant is trying to protect his property, but the force used is only considered
when there is an unlawful use of force against the defendant. The defense is
only valid when there is an honest and reasonable fear of harm to the person’s
property. So, in cases of disputes over personal property, the owner can use
force to take his property back.

Consent
Consent can also be considered as a defense in the case of assault and battery.
Consent is when the person voluntarily agrees to the intention of the defendant.
So, when the individual has given his consent to perform the act, then that
same act can not be considered as a battery. But in situations when the person
exceeds the extent of the act, on those grounds the act can be considered as a
battery.
These were the defenses that can be used when a person is facing charges for
assault and battery.

Remedies
There are different remedies available under the law of tort:

Legal Remedies
Legal remedies are also known as damages, which is compensation given by the
defendant to the plaintiff to compensate for the injuries, pain, or the sufferings
given by the defendant. The compensation is directly proportional to the
victim’s loss not to that of the defendant’s profits. The damages are considered
as the tort claims and the compensation received by the plaintiff through the
Court are known as pain and suffering damages.

Restitutionary Remedies
These remedies try to restore the position of the plaintiff as close as possible to
the state before all of it happened. This remedy includes:

 Restitutionary Damages: These damages are similar to damages but in

this, the compensation is calculated through the defendant’s gains, not
the plaintiff’s loss.
 Replevin: This helps the victim to recover his personal property that he
lost because of the battery.
 Ejectment: In this remedy, the court helps in ejecting the person who
is staying unlawfully in the person’s property. This remedy is mostly
used in cases of trespass.
 Property Lien: In the situation when the defendant can not pay the
damages, the judge can lien the property or sell the property as per
the situation demands, to pay damages to the victim.

Equitable Remedies
These are the remedies used when the monetary damages can not restore the
initial stage of the victim. These remedies include:
  Temporary Restraining Order: In the cases of assault and battery,
when the defendant has physically harmed or harassed the victim,
then the victim can obtain a restraining order which prevents the
defendant from making any contact with the plaintiff or even coming
close to the plaintiff.
 Temporary or Permanent Injunction: These injunctions can either
prohibit unlawful activities initiated by the defendant or it can also take
affirmative steps to control the defendant.

Conclusion
So, the battery is an intentional tort which deals with creating unconsented
harm to another person or property of the person. In the case of battery,
physical contact is very important as the battery can not be constituted without
any physical contact. Since avoiding physical contact with other people in day-
to-day life is next to impossible. So, physical contact must harm or must be
offensive to constitute a battery. So, in order to be liable for battery, a person
must have an intention to continue to perform an act that will harm a person,
the act must have any physical conduct or there must be any physical contact.
The contact must damage the person in any sort of way and the act must not
be justified by the law. And the most important thing is the victim must not
know about the act, which means there must be no consent of the victim. All
these elements constitute battery.