R&D Torts

Date and Time: 30 July 2019 21:54:00 IST
Job Number: 93928189

Documents (29)
1. CHAPTER I GENERAL PRINCIPLES
Client/Matter: -None-
2. CHAPTER II SOME GENERAL ELEMENTS IN TORTS
3. CHAPTER III PERSONAL CAPACITY
4. CHAPTER IV FOREIGN TORTS
5. CHAPTER V JUSTIFICATION OF TORTS
6. CHAPTER VI DEATH IN RELATION TO TORTS
7. CHAPTER VII DISCHARGE OF TORTS
8. CHAPTER VIII LIABILITY FOR WRONGS COMMITTED BY OTHERS
9. CHAPTER IX REMEDIES
10. CHAPTER X CLASSIFICATION OF TORTS
11. CHAPTER XI TRESPASS TO PERSON
12. CHAPTER XII DEFAMATION
13. CHAPTER XIII MALICIOUS PROCEEDINGS
14. CHAPTER XIV WRONGS RELATING TO DOMESTIC AND OTHER
MISCELLANEOUS RIGHTS
15. CHAPTER XV TORT TO REALITY OR IMMOVABLE PROPERTY
16. CHAPTER XVI TORTS TO PERSONALITY OR MOVABLE PROPERTY
17. CHAPTER XVII TORTS AFFECTING IMMOVABLE AS WELL AS MOVABLE
PROPERTY
18. CHAPTER XVIII TORTS TO INCORPOREAL PERSONAL PROPERTY
19. CHAPTER XIX NEGLIGENCE AND ALLIED TOPICS
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20. CHAPTER XX NUISANCE
21. CHAPTER XXI FRAUD AND NEGLIGENT MISSTATEMENT
22. CHAPTERS VII-A AND VIII THE MOTOR VEHICLES ACT, 1939 [4 of 1939] WITH
SHORT NOTES
23. CHAPTER VIII INSURANCE OF MOTOR VEHICLES AGAINST THIRD-PARTY RISKS
24. CHAPTERS X, XI AND XII OF THE MOTOR VEHICLES ACT, 1988 [ACT NO. 59 OF
1988]
25. CHAPTER XI INSURANCE OF MOTOR VEHICLES AGAINST THIRD PARTY RISKS
26. CHAPTER XII CLAIMS TRIBUNALS
27. THE CONSUMER PROTECTION ACT, 1986
28. THE CONSUMER PROTECTION ACT,1986 (68 of 1986)
29. SUMMARY(Revised by DR. AVTAR SINGH B.Com., LL.M., LL.D.(Luck))
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CHAPTER I GENERAL PRINCIPLES
Ratanlal & Dhirajlal : The Law of Torts
Ratanlal & Dhirajlal
Ratanlal & Dhirajlal : The Law of Torts > Ratanlal & Dhirajlal : The Law of Torts
1. THE LAW OF TORTS IN INDIA
UNDER the Hindu Law and Muslim Law tort had a much narrower conception than the tort of the English law. 1
The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. 2
The law of torts as administered in India in modern times is the English law as found suitable to Indian conditions
and as modified by the Acts of the Indian Legislature. 3 Its origin is linked with the establishment of British Courts in
India.
4 The first British Courts established in India were the Mayor's Courts in the three presidency towns of Calcutta,
Madras and Bombay. These Courts were established in the eighteenth century, and the charters which established
them required them “to give judgment and sentence according to justice and right”. 5 The Englishmen
administering these courts normally drew upon the common law and statute law of England as found suitable to
Indian conditions while deciding cases “according to justice and right”. This led to introduction in these courts’
jurisdiction of the English common and statute law in force at the time so far as it was applicable to Indian
circumstances. 6 The Supreme Courts which were established sometime later in those three towns and which
replaced the Mayor's Courts were modelled on the English pattern and had such jurisdiction and authority as the
court of King's Bench had in England by the common law of England. The Supreme Courts were superseded by
High Courts in those three towns, but the jurisdiction to administer the English common law was continued. The law
of torts is part of the common law, and it was thus that the English law of torts came to be applied in the cities of
Calcutta, Madras and Bombay. But the common law so applied by the High Courts of Calcutta, Madras and
Bombay is applied only by those Courts in the exercise of their ordinary original civil jurisdiction as distinguished
from appellate jurisdiction, that is, the jurisdiction to hear appeals from decrees of mofussil Courts. As regards other
Courts in India, there is no express provision for the administration of the English common law. These Courts have
been established by Acts almost all local, and the Acts establishing them contain each a section which requires
them, in the absence of any specific law or usage, to act according to “justice, equity and good conscience”. 7 The
expression “justice, equity and good conscience” was interpreted by the Privy Council to mean “the rules of English
law if found applicable to Indian society and circumstances”. 8 The law as stated above is also the law to be
administered by each of the High Courts in India in the exercise of its appellate jurisdiction. 9
It has also been held that section 9 of the Code of Civil Procedure, which enables a Civil Court to try all suits of a
civil nature, impliedly confers jurisdiction to apply the law of Torts as principles of justice, equity and good
conscience. 10
The law of torts or civil wrongs in India is thus almost wholly the English law which is administered as rules of
justice, equity and good conscience. The Indian courts, however, before applying any rule of English law can see
whether it is suited to the Indian society and circumstances. 11 The application of the English law in India as rules
of justice, equity and good conscience has, therefore, been a selective application. 12 Further, in applying the
English law on a particular point, the Indian courts are not restricted to the common law. The English law consists
both of common law and statute law and the Indian courts can see as to how far a rule of common law has been
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modified or abrogated by statute law of England. If the new rules of English statute law replacing or modifying the
common law are more in consonance with justice, equity and good conscience, it is open to the courts in India to
reject the outmoded rules of common law and to apply the new rules. It is on this reasoning that the principles of the
English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is
still no corresponding Act enacted by Parliament in India. 13 This reasoning was also applied in following the
principles of rules 9 to 18 of Order 29 of the Supreme Court Rules (English) made under section 20 of the
Administration of Justice Act, 1920, to enable the court to order interim payment in a tort action, although there are
no statutory rules corresponding to the aforesaid rules in India. 14 And on similar reasoning, the Nagpur High Court
refused to apply the doctrine of common employment in so far as it was abrogated in England by the Employers’
Liability Act of 1880 even before the enactment of the corresponding Employers’ Liability Act by the Indian
Legislature in 1938. 15 On the other hand the Allahabad High Court has held that the rule enacted in the English
statute, the Law Reform (Married Woman and Tort-feasors) Act, 1935, that although it is possible to bring separate
actions against joint tort-feasors, the sums recoverable under these judgments by way of damages are not in the
aggregate to exceed the amount of the damages awarded by the judgment first given is not in consonance with any
principle of justice, equity and good conscience and is not applicable in India. 16 In this context it is also wise to
remember that the English common law itself is imbued with flexibility and capacity to adapt itself to new situations
and the courts in our country need not carry the notion that in applying the common law they have no authority to
take a progressive view. As stated by Lord Scarman: “The common law, which in a constitutional context means
judicially developed equity, covers everything which is not covered by statute. It knows no gaps : there can be no
casus omissus . The function of the court is to decide the case before it, even though the decision may require the
extension or adaptation of a principle or in some cases the creation of a new law to meet the justice of the case. But
whatever the court decides to do, it starts from a base-line of existing principle and seeks a solution consistent with
or analogous to a principle or principles recognised. The real risk to the common law is not its movement to cover
new situations and new knowledge but lest it should stand still halted by a conservative judicial approach. If that
should happen, there would be a danger of the law becoming irrelevant to the consideration, and inept in its
treatment of modern social problems. Justice would be defeated. The common law has, however, avoided this
catastrophe by the flexibility given it by generations of judges”. 17
The decision of the Supreme Court 18 , which laid down that an enterprise engaged in a hazardous or inherently
dangerous industry owes an absolute and non-delegable duty to the community shows that if an occasion arises
the Court can be more progressive than the English Courts and can evolve new principle of tort liability not yet
accepted by the English law. In the words of BHAGWATI, C.J.: “We have to evolve new principles and lay down
new norms which will adequately deal with new problems which arise in a highly industrialised economy. We cannot
allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that
in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to
build our own jurisprudence.” 19 More recently SAHAI J., observed: “Truly speaking entire law of torts is founded
and structured on morality that no one has a right to injure or harm other intentionally or even innocently. Therefore,
it would be primitive to class strictly or close finally the ever-expanding and growing horizon of tortuous liability.
Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortuous
liability by courts is more conductive.” 20
2. NATURE OF TORT
2(A) Definition of Tort
The term ‘tort’ is the French equivalent of the English word ‘wrong’ and of the Roman Law term ‘delict’. It was
introduced into the English law by Norman jurists. The word ‘tort’ is derived from the Latin term tortum to twist, and
implies conduct which is twisted or tortious. 21 It now means a breach of some duty independent of contract giving
rise to a civil cause of action and for which compensation is recoverable. In spite of various attempts an entirely
satisfactory definition of tort still awaits its master. To provide a workable definition in general terms, a tort may be
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defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated
damages. 22 A civil injury for which an action for damages will not lie is not a tort, e.g., public nuisance, for which
no action for damages will lie by a member of the public. The person committing a tort or wrong is called a tort-
feasor or wrong doer, and his misdoing is a tortious act. The principal aim of the law of torts is compensation of
victims or their dependants. 23 Grant of exemplary damages 24 in certain cases will show that deterrence of
wrong-doers is also another aim of the law of torts.
2(B) Tort and Contract
There is a well-marked distinction between a Contract and a Tort. A contract is founded upon consent: a tort is
inflicted against or without consent. A contract necessitates privity between the parties to it : in tort no privity is
needed. A tort must also be distinguished from a pure breach of contract. First, a tort is a violation of a right in rem ,
i.e., of a right vested in some determinate person, either personally or as a member of the community, and available
against the world at large: whereas a breach of contract is an infringement of a right in personam , i.e., of a right
available only against some determinate person or body, and in which the community at large has no concern. The
distinction between the two lies in the nature of the duty that is violated. In the case of a tort, the duty is one
imposed by the law and is owed to the community at large. In the case of a contract, the duty is fixed by the will and
consent of the parties, and it is owed to a definite person or persons 25 . Thus, if A assaults B, or damages B's
property without lawful cause or excuse, it is a tort. Here the duty violated is a duty imposed by the law, and that is
the duty not to do unlawful harm to the person or property of another. But if A agrees to sell goods to B for a price,
and either party fails to perform the contract, the case is one of a breach of contract. Here there is no duty owed by
A except to B, and none owed by B except to A. The duty that is violated is a specific duty owed by either party to
the other alone, as distinguished from a general duty owed to the community at large. Secondly, in a breach of
contract, the motive for the breach is immaterial: in a tort, it is often taken into consideration. Thirdly, in a breach of
contract, damages are only a compensation. In an action for tort to the property, they are generally the same. But
where the injury is to the person, character, or feelings, and the facts disclose improper motive or conduct such as
fraud, malice, violence, cruelty, or the like which aggravate the plaintiff's injury, he may be awarded aggravated
damages. Exemplary damages to punish the defendant and to deter him in future can also be awarded in certain
cases in tort but rarely in contract. 26 A clause in a contract limiting liability cannot be relied upon by a person who
is not a party to that contract and incurs liability in tort. 27 Another distinction that may be mentioned is that the law
of torts is aimed at allocation or prevention of losses whereas the law of contract aims to see that the promises
made under a contract are performed.
The same act may amount to a tort and a breach of contract. Persons, such as carriers, solicitors, or surgeons, who
undertake to discharge certain duties and voluntarily enter into contracts for the due performance thereof, will be
liable for neglect or unskilfulness either in an action for a breach of contract or in tort 28 to a party to the contract or
in tort only to a person not a party to the contract who suffers injury. The breach of such contracts amounts also to a
tort because such persons would be equally liable even if there was no contract as they undertake a duty
independently of any contract. A father employs a surgeon to attend on his son. The son is injured by unskilful
treatment. Here there is a contract between the father and the surgeon, but none between the son and the surgeon.
The father, therefore, may sue the surgeon in contract, but the son can sue him only in tort. 29 In the celebrated
case of Donoghue v. Stevenson , 30 a manufacturer who sold substandard article to a retailer who sold it to a
customer was held liable to a friend of the customer who after consuming it became ill. The manufacturer was
under a contractual duty to the retailer and was in breach of that duty but he also owed a duty in tort to take
reasonable care not to harm the consumer.
The aforesaid distinctions between a tort and a contract though fundamentally sound are getting blurred in certain
areas. Although normally a duty in tort is independent of any consent or agreement and is fixed by the law there are
cases where some sort of prior consent or agreement on the part of the defendant is necessary. The more onerous
duty of care owed by an occupier to visitors 31 as distinguished from the duty owed to trespassers is based on the
permission granted to the visitor to enter upon the occupier's premises. Similarly, the duty of care owed to a person
advised by a gratuitous advisor, who is placed in such a position that others may reasonably rely upon his judgment
or skill, has been described as “equivalent to contract” and is dependant upon the advisor's agreeing to give advice
in circumstances in which but for the absence of consideration there would be a contract. 32 An occupier's duty to
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visitors noticed above also furnishes an example of a tort duty which can be curtailed by agreement whether or not
the agreement amounts to contract. In Ashdown v. Samuel Williams & Sons Ltd ., 33 it was held that an occupier of
land can restrict or exclude any liability that he may otherwise incur to any licensee of his including his liability for
negligence by conditions framed and made known to the licensee. Again although it is theoretically correct to say
that in contract the duties are primarily fixed by the parties but in practice the use of standard form agreements and
statutory regulation of contractual terms have curtailed to a large extent the freedom of the parties to settle the
duties under a contract. 34 In the same context it may be observed that the fundamental duty in a contract to
perform the promise like a tort duty comes into being by mere force of the law. 35 Another similarity that may be
noticed is that although at the initial stage a duty in tort is towards persons generally but after there is a breach of
that duty, the duty to pay compensation in tort is like a duty in contract owed to a determinate person or persons.
In the days preceding the rise of contract a person pursuing a “common calling” i.e., a farrier, a smith, an inn-
keeper, a surgeon and a common carrier was liable in damages for failure to exercise that skill which was normally
expected from persons pursuing that calling and though later it became possible for one who entered into a contract
with these persons to sue them in contract, a separate action in tort for breach of the duty imposed on them by law
survived giving rise to concurrent remedies in tort and contract. 36 Another distinction that was drawn was between
damage to property or person and economic loss; the former was thought to be more concerned with tort and the
latter with contract. 37 The list of professions comprised in “common calling” was not extended to cover
comparatively new professions such as stock-brokers, solicitors and architects, 38 who were held liable to their
clients only in contract and not in tort. 39 Recent decisions have removed these anomalies and the rule emerging
is that if the plaintiff would have had a cause of action in tort had the work been performed without any contract,
e.g., gratuitously, the existence of the contract does not deprive him of that remedy. 40 It is now accepted that
there may be concurrent contractual and tortious duties owed to the same plaintiff who has a choice of proceeding
either in tort or contract 41 except when he must rely on a specific term of the contract as distinct from any duty of
reasonable care implicit in the particular relationship brought about by the contract in which case he has to depend
exclusively on his contractual claim. 42 Thus, it has now been held that a solicitor is liable both in tort and contract
to his client for negligent advice. 43 Presumably other professional men like stock-brokers and architects will now
be in the same position as solicitors. 44 In Caparo Industries Plc. v. Dickman, 45 Lord BRIDGE in the context of
an auditor observed: “In advising the client who employs him the professional man owes a duty to exercise that
standard of skill and care appropriate to his professional status and will be liable both in contract and in tort for all
losses which his client may suffer by reason of any breach of that duty .” 46 After referring to these observations
the Court of Appeal in a case relating to an insurance broker said: “This principle applies as much to insurance
brokers or to those who exercise any other professional calling and to other professional activities which they carry
on besides giving advice.” 47 The judgment of Oliver J ., in Midland Bank Trust Co. Ltd. v. Hett Stubbs & Kemp (a
firm), 48 met the appreciation and approval of the House of Lords in Henderson v. Merrett Syndicates Ltd ., 49
where LORD GOFF observed: “As a matter of principle it is difficult to see why concurrent remedies in tort and
contract, if available against the medical profession should not also be available against members of other
professions whatever form the relevant damage may take.” 50
In cases “arising out of contract equity steps in and tort takes over and imposes liability upon the defendant for
unquantified damages for the breach of the duty owed by the defendant to the plaintiff” said the Supreme Court in
Manju Bhatia (Mrs.) v. New Delhi Municipal Council 51 . In this case, a builder sold flats in a building, top four floors
of which were demolished by the Municipal Council as they were constructed in violation of the Building
Regulations. The purchasers of the flats which were demolished were not informed of the illegality by the builder.
The Supreme Court held that each purchaser was entitled to return of the amount paid by him plus the escalation
charges and having regard to all the circumstances each flat owner was allowed to receive Rs. Sixty lakhs from the
builder. This case can be taken to be an authority that damages in tort can be allowed against a builder.
An exemption clause in a contract will also be available to the defendant in a tort action provided it is widely worded
and specifically excludes or limits the liability for damages due to negligence. 52 A concurrent or alternative liability
in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion
or limitation of liability for act or omission that would constitute the tort. 53
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Recent advance in the law of negligence allows a plaintiff although his person or property has not been injured to
recover economic loss suffered by him by the negligent act of the defendant in committing a breach of contract
entered into between him and a third party provided there is a close degree of proximity and the loss suffered is a
direct and foreseeable result of the defendant's negligence. 54 All this led to the observation that we are moving
towards the principle that every breach of contract which might with reasonable care have been avoided is also a
tort to a person foreseeably affected thereby including even the parties to the contract. 55 But the development of
this principle, in so far as it covers parties to the contract, got a set back from the Privy Council decision in Tai Hing
Cotton Mill Ltd. v. Liu Chang Hing Bank Ltd. , 56 where in the context of a relationship of banker and customer,
their Lordships observed that they did not believe that there was anything to the advantage of the law's
development in searching for a liability in tort where the parties were in contractual relationship particularly so in a
commercial relationship. The Privy Council case was followed by the Court of Appeal in a case of master and
servant where the terms of employment were regulated by contract. It was held that where a particular duty of care
on the part of the master not to cause economic loss to the servant did not arise out of any express or implied term
of the contract, it could not be inferred under the law of torts. 57 Recently the Privy Council, in the context of a
contract of guarantee, observed that the tort of negligence has not subsumed all torts or does not supplant the
principles of equity or contradict contractual promises or complement the remedy of judicial review or supplement
statutory rights. 58 More recently the Privy Council observed: “The House of Lords has also warned against the
danger of extending the ambit of negligence so as to supplant or supplement other torts, contractual obligations,
statutory duties or equitable rules in relation to every kind of damage including economic loss.” 59
2(C) Tort and Quasi-Contract
Quasi -contracts cover those situations where a person is held liable to another without any agreement for money
or benefit received by him to which the other person is better entitled. According to the orthodox view the judicial
basis of the obligation under a quasi- contract is a hypothetical contract which is implied by law and this is the
reason why the subject is treated along with contract. But according to the radical view which is to be preferred, the
obligation is sui generis and its basis is prevention of unjust enrichment. 60 In other words, the obligation under a
quasi- contract is imposed by the law for the reason that the defendant has been unjustly enriched at the expense
of the plaintiff. Quasi- contract differs from tort in that there is no duty owed to persons generally for the duty to
repay money or benefit received is owed to a definite person or persons; and the damages recoverable are
liquidated damages and not unliquidated damages as in tort. On both these aspects quasi- contract has similarity
with contract. Quasi- contract resembles tort and differs from contract on one aspect that the obligation in it as in
tort is imposed by the law and not under an agreement as in contract. There is one aspect in which quasi- contract
differs from both tort and contract. This can be explained by taking a familiar example of quasi- contract that when A
pays money under a mistake to B, B is under an obligation to refund it to A, even though the payment is voluntary
and is not induced by any fraud or misrepresentation emanating from B. 61 In this illustration it cannot be said that
there was any primary duty on B not to accept the money paid to him under a mistake and the only duty on him is
the remedial or secondary duty to refund the money to A; but in tort as also in contract there is always a primary
duty the breach of which gives rise to the remedial duty to pay compensation. 62
2(D) Tort and Crime
A tort is also widely different from a crime. First, a tort is an infringement or privation of the private or civil rights
belonging to individuals considered as individuals; whereas a crime is a breach of public rights and duties which
affect the whole community considered as a community. Secondly, in tort, the wrongdoer has to compensate the
injured party: whereas, in crime, he is punished by the State in the interests of society. Thirdly, in tort, the action is
brought by the injured party: in crime, the proceedings are conducted in the name of the State and the guilty person
is punished by the State. Criminal Courts are authorised within certain limits and in certain circumstances to order
payment of a sum as compensation to the person injured out of the fine imposed on the offender. 63 The
compensation so awarded resembles the award of unliquidated damages in a tort action but there is a marked
difference. The award of compensation in a criminal prosecution is ancillary to the primary purpose of punishing the
offender but in a tort action generally it is the main purpose. Only exemplary damages allowed in a tort action are
punitive in nature and one of the reasons for severely restricting the categories of cases in which they can be
awarded is that they import a criminal element in civil law without proper safeguards. 64 There is, however, a
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similarity between tort and crime at the primary level. In criminal law also the primary duty not to commit an offence
for example murder like any primary duty in tort is in rem and is imposed by the law.
The same set of circumstances will, in fact, from one point of view, constitute a tort, while, from another point of
view, amount to a crime. In the case, for instance, of an assault, the right violated is that which every man has, that
his bodily safety shall be respected, and for the wrong done to this right the sufferer is entitled to get damages. But
this is not all. The act of violence is a menace to the safety of society generally, and will therefore be punished by
the State. Where the same wrong is both a crime and a tort (e.g. , assault, libel, theft, mischief to property) its two
aspects are not identical; its definition as a crime and as a tort may differ; what is a defence to the tort (as in libel
the truth) may not be so in the crime and the object and result of a prosecution and of an action in tort are different.
The wrongdoer may be ordered in a civil action to make compensation to the injured party, and be also punished
criminally by imprisonment or fine. There was a common law rule that when a tort was also a felony the offender
could not be sued in tort until he had been prosecuted for the felony or a reasonable excuse had been shown for
his non-prosecution. 65 This rule has not been followed in India 66 and has been abolished also in England. 67
Cases may easily be put showing that a transaction may involve a criminal, also a tortious element, and lastly, an
element of quasi- contract so that the offender may be prosecuted for a criminal offence and sued for damages in
an action on tort or sued for money had and received by him. Suppose that a person fraudulently obtains goods
under circumstances which would render him liable to be indicted, and that he afterwards sells the goods and
receives the proceeds of their sale, here the individual who wrongfully possessed himself of the goods would be
liable to an indictment for fraud, to an action at suit of the rightful owner for recovery of the goods or their value or,
lastly, to an action for the money had and received by the defendant.
3. CONSTITUENTS OF TORT
3(A) General
The law of torts is fashioned as “an instrument for making people adhere to standards of reasonable behaviour and
respect the rights and interests of one another”. 68 This it does by protecting interests and by providing for
situations when a person whose protected interest is violated can recover compensation for the loss suffered by
him from the person who has violated the same. 69 By “interest” here is meant “a claim, want or desire of a human
being or group of human beings which the human being or group of human beings seeks to satisfy, and of which,
therefore, the ordering of human relations in civilised society must take account”. 70 It is, however, obvious that
every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he
should be compensated by the person who is the author of the loss. 71 The law, therefore, determines what
interests need protection and it also holds the balance when there is a conflict of protected interests. 72 A
protected interest gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights
are absolute in the sense that mere violation of them leads to the presumption of legal damage. There are other
legal rights where there is no such presumption and actual damage is necessary to complete the injury which is
redressed by the law. An act which infringes a legal right is a wrongful act. But every wrongful act is not a tort. To
constitute a tort or civil injury (1) there must be a wrongful act committed by a person; (2) the wrongful act must give
rise to legal damage or actual damage and (3) the wrongful act must be of such a nature as to give rise to a legal
remedy in the form of an action for damages.
3(B) Wrongful Act
“The act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that
is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interest
is not enough.” 73
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An act which, prima facie , appears to be innocent may become tortious, if it invades the legal right of another
person. A familiar instance is the erection on one's own land of anything which obstructs the light to a neighbour's
house. It is, no doubt, lawful to erect what one pleases on one's own land; but if by twenty years’ enjoyment, the
neighbour has acquired the legal right to the unobstructed transmission of the light across that land, the erection of
any building which substantially obstructs it is an invasion of the right, and so not only does damage, but is unlawful
and injurious. The crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of another.
Now, what is a legal right? It has been defined, by AUSTIN, 74 as a ‘faculty’ which resides in a determinate party or
parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or
parties) other than the party or parties in whom it resides. Rights available against the world at large are very
numerous. They are sub-divided into private rights and public rights.
Private rights include all rights which belong to a particular person to the exclusion of the world at large. These
rights are: “(1) rights of reputation; (2) rights of bodily safety and freedom; (3) rights of property; or, in other words,
rights relative to the mind, body, and estate; and, if the general word ‘estate’ is substituted for ‘property’, these three
rights will be found to embrace all the personal rights that are known to the law”. 75 Under the third head of rights
of property will fall (a) those rights and interests, corporeal and in-corporeal, which are capable of transfer from one
to another, and (b) those collateral rights of a personal nature which enable a person to acquire, enjoy and preserve
his private property. Thus private property is either property in possession, property in action, or property that an
individual has a special right to acquire. 76
Public rights include those rights, which belong in common to the members of the State generally. Every
infringement of a private right denotes that an injury or wrong has been committed, which is imputable to a person
by whose act, omission, or forbearance, it has resulted. But when a public right has been invaded by an act or
omission not authorized by law, then no action will lie unless in addition to the injury to the public, a special, peculiar
and substantial damage is occasioned to the plaintiff. 77 The remedy of the public is by indictment, for, if every
member of the public were allowed to bring action in respect of such invasion, there would be no limit to the number
of actions which might be brought. 78
To every right there corresponds an obligation or duty. If the right is legal, so is the obligation; if the right is
contingent, imaginary, or moral, so is the obligation. A right in its main aspect consists in doing something, or
receiving and accepting something. So an obligation consists in performing some act or in refraining from
performing an act. A servitude of passage over a field appears as a right of walking or driving over it by the owner of
the dominant tenement. The duty of the servient owner is to refrain from putting obstacles. An easement of light
appears as a right on the part of the dominant owner to interdict the erection of buildings on the servient tenement,
or to remove them when erected. The duty is to abstain from erecting them. The duty with which the law of torts is
concerned is the duty to abstain from wilful injury, to respect the property of others, and to use due diligence to
avoid causing harm to others.
Liability for a tort arises, therefore, when the wrongful act complained of amounts either to an infringement of a legal
private right or a breach or violation of a legal duty.
3(C) Damage
“Damage” means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful
act of another. The sum of money awarded by court to compensate “damage” is called “damages” .
From the point of view of presumption of damage, rights are classified into (1) absolute and (2) qualified. When an
absolute right is violated the law conclusively presumes damage although the person wronged may have suffered
no pecuniary loss whatsoever. The damage so presumed is called legal damage. Violation of absolute right is,
therefore, actionable per se , i.e., without proof of any damage. In case of qualified rights, there is no presumption
of legal damage and the violation of such rights is actionable only on proof of actual or special damage. In other
words, in case of an absolute right, the injury or wrong, i.e., the tortious action, is complete the moment the right is
violated irrespective of whether it is accompanied by any actual damage, whereas in case of a qualified right, the
injury or wrong is not complete unless the violation of the right results in actual or special damage.
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In the leading case of Ashby v. White, 79 which is illustrative of violation of an absolute right, LORD HOLT, C.J.,
said : “Every injury imports a damage; though it does not cost the party one farthing, and it is impossible to prove
the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby
hindered of his right. As in an action for slanderous words, 80 though a man does not lose a penny by reason of
the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it costs him
nothing, not so much as a little diachylon (plaster), yet he shall have his action, for it is personal injury. So a man
shall have an action against another for riding over his ground, though it does him no damage; for it is an invasion
of his property and the other has no right to come there”.
The real significance of legal damage is illustrated by two maxims, namely, injuria sine damno and damnum sine (or
absque ) injuria .
By damnum is meant damage in the substantial sense of money, loss of comfort, service, health, or the like. By
injuria is meant a tortious act; it need not be wilful and malicious; for though it be accidental, if it be tortious, an
action will lie. 81 Any unauthorized interference, however trivial, with some absolute right conferred by law on a
person, is an injury, e.g. , the right of excluding others from one's house or garden.
In cases of injuria sine damno , i.e., the infringement of an absolute private right without any actual loss or damage,
the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the
immunity of his person, and to his liberty, and an infringement of this right is actionable per se . There are two kinds
of torts those which are actionable per se , that is, without proof of actual damage, and those which are actionable
only on proof of actual damage resulting from them. In the former kind the law presumes damage because certain
acts are so likely to result in harm owing to their mischievous tendency that the law prohibits them absolutely;
whereas in the latter there is no such presumption and actual damage must be proved. 82 Whenever a person has
sustained what the law calls an ‘injury’ in the former class of cases he may bring an action without being under the
necessity of proving special damage, because the injury itself is taken to imply damage. Actual, perceptible, or
appreciable loss, or detriment is not indispensable as the foundation of an action. Trespass to person, that is
assault, battery and false imprisonment, and trespass to property, whether it be land or goods and libel are
instances of torts that are actionable per se , and the Court is bound to award to the plaintiff at least nominal
damages if no actual damage is proved.
In India the same principles have been followed. The Privy Council has observed that “there may be, where a right
is interfered with, injuria sine damno sufficient to found an action: but no action can be maintained where there is
neither damnum nor injuria” . 83 A violation of a legal right committed knowingly gives rise to a cause of action,
e.g., interference with an exclusive right to weigh goods and produce sold at a bazaar, 84 or to break a curd-pot in
a temple on a certain day, 85 or to carry a procession through certain public streets of a village on specific
occasions, 86 or to the supply of water from a channel 87 or to receive offerings by setting up a new temple in the
name of the same deity in the same vicinity. 88
If there is merely a threat of infringement of a legal right without the injury being complete the person whose right
has been threatened can bring a suit under the provisions of the Specific Relief Act for declaration and injunction.
Refusal to register vote.— In the leading case of Ashby v. White , 89 the defendant, a returning officer, wrongfully
refused to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary election and the
candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote,
nevertheless it was held that an action lay. In this case the returning officer had acted maliciously. Where, therefore,
a returning officer, without any malice or any improper motive, in exercising his judgment, honestly refused to
receive the vote of a person entitled to vote at an election, it was held that no action lay. 90 If a person entitled to
be upon the electoral roll is wrongfully omitted from such roll so as to be deprived of his right to vote he suffers a
legal wrong for which an action lies. 91 An action for damages will also lie if a citizen is deprived of his right to vote
by a law which is unconstitutional law by reason of offending right to equality. 92
Banker refusing customer's cheque. —An action will lie against a banker, having sufficient funds in his hands
belonging to a customer, for refusing to honour his cheque, although the customer did not thereby sustain any
actual loss or damage. 93
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In cases of damnum sine injuria , i.e., actual and substantial loss without infringement of any legal right, no action
lies. Mere loss in money or money's worth does not of itself constitute a tort. The most terrible harm may be inflicted
by one man on another without legal redress being obtainable. There are many acts which, though harmful, are not
wrongful and give no right of action. “ Damnum ” may be absque injuria . Thus, if I have a mill, and my neighbour
sets up another mill, and thereby the profits of my mill fall off, I cannot bring an action against him; and yet I have
suffered damage. But if a miller hinders the water from running to my mill, or causes any other like nuisance, I shall
have such action as the law gives. 94
Acts done by way of self-defence against a common enemy , such as the erection of banks to prevent the inroads
of the sea, 95 removal of support to land where no such right of support has been acquired, and damage caused
by acts authorised by statute are instances of damnum absque injuria , and damage resulting therefrom is not
actionable. The loss in such cases is not caused by any wrong, but by another's exercise of his undoubted right;
and, in every complicated society, the exercise, however legitimate, by each member of his particular rights, or the
discharge, however legitimate, by each member of his particular duties, can hardly fail occasionally to cause conflict
of interests which will be detrimental to some. Where an act is lawful or legally done, without negligence, and in the
exercise of a legal right, such damage as comes to another thereby is damage without injury. Hence the meaning of
the maxim is that loss or detriment is not a ground of action unless it is the result of a species of wrong of which the
law takes cognizance. In a suit for damages based on a tort the plaintiff cannot succeed merely on the ground of
damage unless he can show that the damage was caused by violation of a legal right of his. 96
When a statute confers upon a corporation a power to be exercised for the public good, the exercise of power is not
generally discretionary but imperative. No action lies against a District Board for the planting of trees by the side of
a road even if a tree through unknown causes falls and damages the house of the plaintiff, unless it is proved that
the District Board did not use due care and diligence. 97
Interception of percolating water.— A landowner and millowner who had for about six years enjoyed the use of a
stream, which was chiefly supplied by percolating underground water, lost the use of the stream after an adjoining
ownerdug on his own ground in extensive well for the purpose of supplying water to the inhabitants of the district. In
an action brought by the landowner it was held that he had no right of action. 98 In Acton v. Blundell , 99 a
landowner in carrying on mining operations on his land in the usual manner drained away the water from the land of
another owner through which water flowed in a subterraneous course to his well, and it was held that the latter had
no right to maintain an action.
Where the defendant intended to divert underground water from a spring that supplied the plaintiff corporation's
works, not for the benefit of his own land, but in order to drive the corporation to buy him off, it was held that the
defendant's conduct was unneighbourly but not wrongful and therefore no action lay. 1 The rule as to the right of a
landowner to appropriate percolating underground water applies equally to brine. 2
It has again been recently reiterated 3 that a landowner is entitled to exercise his right to obstruct subterranean
water flowing in undefined channels under his land regardless of consequences, whether physical or pecuniary, to
his neighbours and regardless of his motive or intention or whether he anticipated damage. On this view, it was held
that a landowner was not liable to his neighbour, whose land subsided damaging her house, for extraction of
underground water despite warning that it was likely to result in collapse of neighbouring land. But this case also
brings forward the necessity of change in law by judicial decision or legislation as modern methods of extraction of
underground water without any restriction may bring down the water level in the neighbouring area to such an
extent as to dry up all the wells and seriously affect life and vegetation in the neighbourhood.
Damage caused by lawful working of mine.— Where a landowner by working his mines caused a subsidence of his
surface, in consequence of which the rainfall was collected and passed by gravitation and percolation into an
adjacent lower coal-mine, it was held that the owner of the latter could sustain no action because the right to work a
mine was a right of property, which, when duly exercised, begot no responsibility. 4
Setting up rival school.— Where the defendant, a schoolmaster, set up a rival school next door to the plaintiff's and
boys from the plaintiff's school flocked to defendant's, it was held that no action could be maintained. 5 Competition
is no ground of action whatever damage it may cause, provided nobody's legal rights are infringed. 6
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Driving rival trader out of market. —A, B, C and D, shipowners, who shipped tea from one port to another,
combined together, to keep the entire trade in their hands and consequently to drive F, a rival shipowner, out of
trade by offering special terms to customers who deal with them to the exclusion of F, F sued A, B, C and D for the
loss caused to him by their act. It was held that F had no right of action, for no legal right of F had been infringed.
Damage done by competition in trade was not actionable. 7
Use of title by spouse after dissolution of marriage.— Where the marriage of a commoner with a peer had been
dissolved by decree at the instance of the wife, and she afterwards, on marrying a commoner, continued to use the
title she had acquired by her first marriage, it was held that she did not thereby, though having no legal right to the
user, commit such legal wrong against her former husband, as to entitle him, in the absence of malice, to an
injunction to restrain her the use of the title. 8
Using of name of another man's house.— The plaintiff's house was called “Ashford Lodge” for sixty years, and the
adjoining house belonging to the defendant was called “ Ashford Villa” for forty years. The defendant altered the
name of his house to that of the plaintiff's house. The plaintiffs alleged that this act of the defendant had caused
them great inconvenience and annoyance, and had materially diminished the value of their property. It was held
that defendant had not violated any legal right of the plaintiffs. 9
Obstruction to view of shop.— The plaintiff carried on his business in a shop which had a board to indicate the
materials in which he dealt. The defendant by virtue of statutory powers erected a gasometer which obstructed the
view of his premises. In an action by the plaintiff to restrain by injunction the erection of the gasometer as it injured
him by obstructing the view of his place of business, it was held that no injunction could be granted for the injury
complained of. 10
Misdelivery of telegram.— A sent a telegram to B for the shipment of certain goods. The telegraph company,
mistaking the registered address of C for that of B, delivered the telegram to C. C, acting on the telegram, sent the
goods to A. A refused to accept the goods stating that he had ordered the goods not from C, but from B. C sued the
telegraph company for damages for the loss suffered by him. It was held that C had no cause of action against the
company, for the company did not owe any duty of care to C, and no legal right of C could therefore be said to have
been infringed. 11
Water supply cut-off. —Due to the negligence of the defendants a fire hydrant near the defendants’ factory on an
industrial estate was damaged by their lorry. As a result of this, supply of water through the main was cut off and
this caused loss of a day's work in the plaintiffs’ factory. Neither the main nor the hydrant was the property of the
plaintiffs. In an action by the plaintiffs to recover their loss it was held that the action did not lie because there was
no injuria , as the duty not to damage the hydrant was owed to the owners of the hydrant that was damaged and not
to the plaintiffs. 12
Indian cases—Refusal of employment.— The plaintiffs owned a tug which was employed for towing ships in charge
of Government pilots in the Hooghly. A troopship arrived in the Hooghly. The plaintiffs asked an exorbitant price for
towing-up the ship, whereupon the Superintendent of Marine issued a general order to officers of the Government
pilot service not to employ the tug in future. The plaintiffs brought an action against the Superintendent for
damages. It was held that they had no legal right to have their tug employed by Government, and the action was
dismissed. 13
Ceasing to offer food to idol.— Where the servants of a Hindu temple had a right to get the food offered to the idol,
but the person who was under an obligation to the idol to offer food did not do so, and the servants brought a suit
against him for damages, it was held that the defendant was under no legal obligation to supply food to the temple's
servants, and though his omission to supply food to the idol might involve a loss to the plaintiffs, it was damnum
absque injuria , and could not entitle the plaintiffs to maintain a suit. 14
Damage to wall by water.— The defendant built two pacca walls on his land on two sides of his house as a result of
which water flowing through a lane belonging to the defendant and situated between the defendant's and plaintiff's
houses damaged the walls of the plaintiff. The plaintiff had not acquired any right of easement. It was held that the
Page 11 of 24
defendant by building the wall on his land had not in any way violated the plaintiff's right, that this was a case of
damnum sine injuria and that, therefore, no right of action accrued to the plaintiff. 15
Loss of one academic year.— A student was wrongly detained for shortage of attendance by the Principal on a
misconstruction of the relevant regulations and thereby the student suffered the loss of one year. In a suit for
damages it was held that the suit was not maintainable as the misconstruction of the regulations did not amount to
a tort. 16
The result of the two maxims 17 is that there are moral wrongs for which the law gives no legal remedy though they
cause great loss or detriment; and, on the other hand, there are legal wrongs for which the law does give a legal
remedy, though there be only violation of a private right, without actual loss or detriment in the particular case. As
already seen, there are torts which are not actionable per se . In these cases what is violated is a qualified right as
distinguished from an absolute right in the sense that actual damage is an ingredient of the tort and the injury or
wrong is complete only when it is accompanied by actual damage. Such damage is called variously, “express loss”,
“particular damage”, “damage in fact”, “special or particular loss”. 18 But “actual damage” is the better expression
to be used in the present context. Actual damage is the gist of action in the following cases: (1) right to support of
land as between adjacent landowners; (2) menace; (3) seduction; (4) slander (except in four cases); (5) deceit; (6)
conspiracy or confederation; (7) waste; (8) distress damage feasant ; (9) negligence; (10) nuisance consisting of
damages to property; and (11) actions to procure persons to break their contracts with others.
3(D) Remedy
A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for
which the remedy is a civil action for damages. The essential remedy for a tort is an action for damages, but there
are other remedies also, e.g. , injunction may be obtained in addition to damages in certain cases of wrongs.
Specific restitution of a chattel may be claimed in an action for detention of a chattel. Where there is dispossession
of land, the plaintiff in addition to damages also claims to recover the land itself. But it is principally the right to
damages that brings such wrongful acts within the category of torts. There also exists a large number of
unauthorised acts for which only a criminal prosecution can be instituted. Further, damages claimable in a tort
action are unliquidated damages. For example, as earlier seen an action for money had and received in the context
of quasi- contract, where liquidated damages are claimed is not a tort action.
The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong without a
remedy). Jus signifies here the ‘legal authority to do or to demand something; and remedium may be defined to be
the right of action, or the means given by law, for the recovery or assertion of a right. If a man has a right, “he must
of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of
it; and indeed it is a vain thing to imagine a right without a remedy; want of right and want of remedy are reciprocal.
19 The maxim does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political
wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn
promise not under seal and made without consideration, 20 nor for many kinds of verbal slander, though each may
involve utter ruin; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The
maxim means only that legal wrong and legal remedy are correlative terms; and it would be more intelligibly and
correctly stated, if it were reversed, so as to stand, “where there is no legal remedy, there is no legal wrong.” 21
Again, speaking generally, there is in law no right without a remedy; and, if all remedies for enforcing a right are
gone, the right has from practical point of view ceased to exist. 22 The correct principle is that wherever a man has
a right the law should provide a remedy 23 and the absence of a remedy is evidence but is not conclusive that no
right exists. 24
4. GENERAL PRINCIPLE OF LIABILITY

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There are two views prevailing on the subject of existence of some broad unifying principle of all tortious liability.
The two views are set out in the question that SALMOND asked : “Does the law of torts consist of a fundamental
general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of
justification or excuse, or does it consist of a number of specific rules prohibiting certain kinds of harmful activity and
leaving all the residue outside the sphere of legal responsibility”. 25 SALMOND preferred the second alternative
and his book for this reason is still entitled as Law of Torts and not Law of Tort. 26 WINFIELD on the other hand
accepted the second alternative i.e., the narrow view only from the practical point of view as a day to day matter but
he contended that “from a broader outlook there was validity in the theory of a fundamental general principle of
liability, for if we take the view, as we must, that the law of tort has grown for centuries, and is still growing, then
some such principle seems to be at the back of it”. 27 The entire history of the development of the tort law shows a
continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal
protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that
this tendency has ceased or is going to cease in future. 28 There are dicta both ancient and modern that
categories of tort are not closed and that novelty of a claim is no defence. 29 But generally, the judicial process
leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations
and they seldom proclaim their creative role. Normally a new principle is judicially accepted to accommodate new
ideas of social welfare 30 or public policy 31 only after they have gained their recognition in the society for
example in extra-judicial writings and even then the decision accepting the new principle is supported mainly by
expansion or restriction of existing principles which “gradually receive a new content and at last a new form”. 32 A
modern example of final recognition of a new tort of intimidation is furnished by Rookes v. Barnard . 33 Recent
advances in the field of negligence have recognised new duty situations. 34 It has been held 35 that there are not
a number of separate torts involving negligence each with its own rules as was thought at the beginning of this
century and that the general principle behind the tort of negligence is that “you must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure your neighbour” 36 and a new duty
situation may be recognised on this principle provided it is just and reasonable to do so. 37 May be that similarly in
future some common principle may be found by the English law behind all torts but it has not so far recognised a
general principle of liability, 38 or what is known as the prima facie tort theory under the American law that prima
facie “the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law,
whatever may be the form of the pleading requires justification if the defendant is to escape”. 39 The High Court of
Australia in a controversial decision 40 Beaudesert Shire Council v. Smith 41 appeared to recognise the existence
of an innominate tort of the nature of an “action for damages upon the case” available to “a person who suffers
harm or loss as the inevitable consequence of unlawful, intentional and positive acts of another”. But the decision
has not been followed subsequently in Australia or other common law jurisdictions and the House of Lords in
Lonrho Ltd. v. Shell Petroleum Co. Ltd . 42 emphatically ruled that it forms no part of the English Law. The present
state of the English law has been pithily summed up by Prof. G. Williams as follows: “There are some general rules
creating liability—and some equally general rules exempting from liability—Between the two is a stretch of disputed
territory, with the courts as an unbiased boundary commission. If, in an unprovided case, the decision passes for
the plaintiff, it will be not because of a general theory of liability but because the court feels that here is a case in
which existing principles of liability may properly be extended.” 43
When invited to develop a new principle of liability the English Courts generally consider as to how far the existing
torts within their recognised boundaries are sufficient to redress the injustice for which a new principle is sought to
be developed and whether such a principle has been recognised in other commonwealth jurisdictions. Proceeding
on these lines, the House of Lords declined to extend the tort of Malicious Prosecution to cover disciplinary
proceedings or even civil proceedings in general though such an extension is recognised in the United States. 44
The English courts also “appear to be determined to arrest the drift towards an American style cry-baby culture in
which the first reaction to misfortune is an expectant phone call to the nearest firm of solicitors.” 45 This culture
was elegantly described by ROUGIER, J., in John Munroe (Acrylics) Ltd. v. London Fire and Civil Defence Authority
46 as follows : “It is truism to say that we live in the age of compensation. There seems to be a growing belief that
every misforture must, in pecuniary terms at any rate, be laid at someone else's door, and after every mishap, the
cupped palms are outstretched for the solace of monetary compensation.” 47 As more recently observed by LORD
HOBHOUSE “: The pursuit of an unrestricted culture of blame and compensation has many evil consequences and
one is certainly the interference with the liberty of citizen” 48 . This unrestricted culture of blame assumes that “for
Page 13 of 24
every mischance in this accident-prone world some one solvent must be liable in damages.” 49 Though in India the
risk is not of a drift towards the American style cry-baby culture, with the widening of the right to life guaranteed by
Article 21 of the Constitution to embrace almost everything which goes to make a man's life meaningful, complete
and worth living with dignity, the risk is that the blame for every misfortune may be laid at the doorstep of the State.
50
1
PRIYANATH SEN, Hindu Jurisprudence, p. 336; KASHI PRASAD SAXENA, Hindu Law and Jurisprudence,
pp. 170, 171; ABDUL RAHIM, Muhamadan Jurisprudence, p. 360; RAMASWAMY IYER'S Law of Torts (7th
edition, 1975) Appendix, pp. 591, 592.
2
Ibid.
3
SETALVAD, The Common Law in India, p. 110. SIR FREDERICK POLLOCK prepared a draft code of torts
for India but it was never enacted into law; see 5 LQR 362. Vidya Devi v. M.P. State Road Transport
Corporation , AIR 1975 MP 89 [LNIND 1974 MP 54]: 1974 ACJ 374 (378). The Indian Law of Torts based
on English law is continued by Article 372 of the Constitution which has been interpreted to continue also
the Common Law Principles applied in India; SETALVAD, pp. 225, 226; Building Supply Corporation v.
Union of India , AIR 1965 SC 1061 (1068) : (1965) 2 SCWR 124 [LNIND 1964 SC 337] : (1965) 2 SCA 68
[LNIND 1964 SC 337] : (1967) 2 SCR 289.
4
The whole of this para with only a little variation has been adopted by SETH, J., in Union Carbide
Corporation v. Union of India , 1988 MPLJ 540.
5
Letters Patent of September 24, 1726, the 13th year of the Reign of George I.
6
SETALVAD, The Common Law in India, pp. 12, 13; Advocate General of Bengal v. Ranee Surnomoye
Dossee , (1863) 9 MIA 387 (426, 427).
7
For example, sec tion 6 of the Central Provinces Laws Act, 1875.
8
Waghela Rajsanji v. Shekh Masludin , (1887) 14 IA 89, 96; ILR (1887) 11 Bom 551 (561); Baboo Thakur
Dhobi v. Mst. Subanshi , (1942) Nag LJ 199 : ILR (1942) Nag 650 : AIR 1942 Nag 99 ; Vidya Devi v. M.P.
State Road Transport Corporation , AIR 1975 MP 89 [LNIND 1974 MP 54]: 1974 ACJ 374 (378). The
Supreme Court in Rattan Lal v. Vardesh Chander , AIR 1976 SC 588 (597) : (1976) 2 SCC 103 [LNIND
1975 SC 495] : (1976) 2 SCR 906 [LNIND 1975 SC 495] has held that in free India principles of justice,
equity and good conscience should not be equated to English Law. The ruling in Ratan Lal's case was
given in the context of necessity of notice for forfeiture of a lease and not in the context of application of the
English Law of torts. Ratanlal's case cannot be taken to have forbidden the application of the English Law
of torts as is found suitable to Indian conditions which came to be introduced in India during the British
period as principles of justice, equity and good conscience.
9
As to Calcutta, Madras and Bombay, see, Letters Patent, Clause 21; as to Allahabad, Patna, Lahore and
Nagpur, see, Letters Patent, Clause 14.
10
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Union Carbide Corporation v. Union of India , 1988 MPLJ 540.

11
See, the observations of KRISHNA AIYAR, J., in the context of the tort of conspiracy in Rohtas Industries
Ltd. v. Rohtas Industries Staff Union, (1976) 2 SCC 82 [LNIND 1975 SC 523] (93) : AIR 1976 SC 425 “We
cannot incorporate English torts without any adaptation into Indian Law.”
12
Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, (1987) 3 SCC 238 : AIR 1987 SC
1690.
13
Vidya Devi v. M.P. State Road Transport Corporation , AIR 1975 MP 89 [LNIND 1974 MP 54]: 1974 ACJ
374 (378, 379). (G.P. SINGH, J.)
14

15
Secretary of State v. Rukhminibai , AIR 1937 Nagpur 354 : ILR (1938) Nag 54 : 174 IC 401.
16
Nawal Kishore v. Rameshwar , AIR 1955 All 594 [LNIND 1955 ALL 31] (596). The law in England was also
later altered by the Civil Liability Contribution Act, 1978, see , p. 246 post.
17
Mcloughlin v. O'Brian , (1982) 2 All ER 298 (310) : (1983) 1 AC 410 : (1982) 2 WLR 982 (HL). Recently the
House of Lords judicially modified the common law rule that money paid under mistake of law cannot be
recovered back by holding that levies and taxes paid to a local authority under ultravires regulations can be
recovered back as of right. In holding so LORD GOFF who delivered the leading speech for the majority
was aware of the existence of a boundary separating legitimate development of the law by the judges from
legislation. But he said that that boundary was not firmly or clearly drawn and varied from case to case
otherwise a number of leading cases would never have been decided the way they were. LORD GOFF was
also conscious that however compelling the principle of justice “it would never be sufficient to persuade a
government to promote its legislative recognition by parliament; caution, otherwise known as the Treasury,
would never allow this to happen.” The case illustrates the extent to which the English judges can go to
reform the common law: Woolwich Building Society v. Inland Revenue Commissioners (No. 2) , (1992) 3 All
ER 737 : (1993) AC 70 : (1992) 3 WLR 366 (HL), pp. 760, 761, 763. The Indian law had long back taken
that view. See , note 61, p. 10.
18
M.C. Mehta v. Union of India , AIR 1987 SC 1086 : (1987) 1 SCC 395 [LNIND 1986 SC 539], p. 420 :
(1987) 1 ACC 157.
19
Ibid. The development of the common law in our country need not be always on the same lines as in
England for the conditions in the two countries are not the same. As recently observed by the Privy Council:
“The ability of the Common law to adopt itself to the differing circumstances of the countries where it has
taken root is not a weakness but one of its strengths” : Invercargill City Council v. Hamlin , (1996) 1 All ER
756, p. 764 : (1996) AC 624 : (1996) 2 WLR 367.
20
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Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 : JT 1994 (3) SC 492, p. 501.
21
The first reported use of the word tort is in Boulton v. Hardy, (1597) Cro. Eliz. 547, 548 : SALMOND and
HEUSTON, Law of Torts, (1992) (20th edition) f.n. 54. Also see, Union of India v. Sat Pal Dharam Vir , AIR
1969 J & K 128 (129) : 1969 Kash LJ 1; Common Cause, a Registered Society v. Union of India, (1999) 5
JT 237, p. 273 : AIR 1999 SC 2979, p. 3004 : (1999) 6 SCC 667 [LNIND 1999 SC 637].
22
Some other definitions are given below:—
“Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons
generally and its breach is redressible by an action for unliquidated damages.”; WINFIELD and JOLOWICZ,
on Tort, (12th edition, 1984), p. 3.
A tort is “a civil wrong for which the remedy is a common law action for unliquidated damages, and which is
not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”
SALMOND & HEUSTON, Law of Torts (1992), 20th edition, pp. 14, 15.
In his Law of Torts (15th edn., pp. 14, 15) SIR FREDERICK POLLOCK thus sums up the normal idea of
tort:—
“Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or
undertaken by contract) which is related in one of the following ways to harm (including interference with an
absolute right, whether there be measurable actual damage or not), suffered by a determinate person:—
(a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm,
and does cause the harm complained of.
(b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not
intended by the person so acting or omitting.
(c) It may be an act violating an absolute right (especially rights of possession or property), and treated as
wrongful without regard to the actor's intention or knowledge. This, as we have seen, is an artificial
extension of the general conceptions which are common to English and Roman Law.
(d) It may be an act or omission causing harm which the person so acting or omitting to act did not intend to
cause, but might and should with due diligence have foreseen and prevented.
(e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound,
absolutely or within limits, to avoid or prevent.”.
N.B. The definitions of Tort as given by WINFIELD and SALMOND were quoted by the Supreme Court in
Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat , (1994) 3 JT 492, p. 501 : (1994) 4 SCC 1. Definitions
from JOWITT'S Dictionary of English Law and WINFIELD were quoted in Common Cause, a Registered
Society v. Union of India, (1999) 5 JT 237, p. 273 : AIR 1999 SC 2979, p. 3004 : (1999) 6 SCC 667 [LNIND
1999 SC 637].
23
G. Williams, The aims of the Law of Torts , (1951) 4 Current Legal Problems, 137.
24
Chapter IX, title 1(D)(ii), p. 209.
25
See, Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 : (1994) 3 JT 492, p. 500 : 1999
ACJ 902.
26
Rookes v. Barnard, (1964) AC 1129 (1221) : (1964) 2 WLR 269 : (1964) 1 All ER 367 (HL); Cassell and Co.
Ltd. v. Broome, (1972) AC 1027 : (1972) 1 All ER 601 (HL).
Page 16 of 24
27
Midland Silicones Ltd. v. Scruttons Ltd. , (1960) 2 All ER 737 : (1961) 1 QB 106 : (1960) 3 WLR 372 : 104
SJ 603, confirmed in (1962) 1 All ER 1.
28
See , text and notes 41 to 50, pp. 8-9.
29
Gladwell v. Steggall , (1839) 5 Bing NC 733 : 8 LJCP 361. But, see, Klaus Mittelbachert v. The East India
Hotels Ltd., AIR 1997 Del 201 [LNIND 1997 DEL 27], p. 230 (It was held that beneficiary to the contract
can also sue in contract).
30
Donoghue v. Stevenson, (1932) AC 562 : 48 TLR 494 (HL). This case finally exploded the “privity of
contract fallacy” that if A undertook a contractual obligation towards B, and his non-performance or mis-
performance of that obligation resulted in damage to C, then C could not sue A unless he could show that A
had undertaken towards him the same obligation as he had assumed towards B. See, SALMOND &
HEUSTON, Law of Torts, [18th edition (1981)], p. 9.
31
‘Visitors’ under the Occupiers’ Liability Act, 1957 are those persons who would at common law be treated
as invitees or licensees.
32
Hedley Byrne & Co. v. Heller and Partners Ltd., (1964) AC 465 (530) : (1963) 3 WLR 101 : (1963) 2 All ER
575.
33
Ashdown v. Samuel Williams & Sons Ltd., (1957) 1 QB 409 : (1957) 1 All ER 35.
34
“Due to change in political outlook and as a result of economic compulsions, the freedom to contract is now
being confined gradually to narrower and narrower limits”; I.S. & W. Products v. State of Madras , AIR 1968
SC 478 (484, 485) : (1968) SCWR 808 : (1968) 1 SCR 479 [LNIND 1967 SC 263]. See further, similar
observations in Omay v. City of London Real Property , (1982) 1 All ER 660 (660) (HL) (LORD HAILSHAM
L.C.).
35
“A contract is an obligation attached by the mere force of the law to certain acts of the parties”. HAND, J., in
Hotchkiss v. National City Bank , (1911) 200 Fed. 287; HOHFELD, Fundamental Legal Conceptions,
(edited by W. W. COOK), p. 31. “It is a misconception to say that obligations arising under a contract are
created by the parties and not by the law. Parties merely settle the terms of a contract, but the obligation to
carry out the terms arises from section 37 of the Indian Contract Act, 1872 which enacts that parties to a
contract must either perform or offer to perform their respective promises, unless such performance is
dispensed with or excused under the provisions of this Act or of any other law” :M/s Shri Ganesh Trading
Co., Saugar v. State of Madhya Pradesh , 1972 MPLJ 864 (FB), p. 883 (G.P. SINGH, J.)
36
STREET, Torts, (6th edition), pp. 210, 211. For example, see, HEREN II (1967) 3 All ER 686 (common
carrier); Constantine v. Imperial Hotels , (1944) 2 All ER 171 (Inn Keeper) : 1994 KB 693; Fish v. Kapur ,
(1948) 2 All ER 176 (Doctor).
37
FLEMING, Law of Torts, (6th edition), p. 168. Everyone owes a duty not to damage another's person or
property hence a cleaner who was employed by the plaintiff to clean his chandelier and who negligently
Page 17 of 24
allowed it to drop from the ceiling was held liable in tort although cleaning was not a common calling;
Jackson v. May Fair Window Cleaning Co. Ltd. , (1952) 1 All ER 215. For economic loss, see, the case of
solicitor; Groom v. Crocker , (1938) 2 All ER 394 : (1939) 1 KB 194.
38
STREET, Torts, (6th edition), p. 211.
39
Groom v. Crocker , (1938) 2 All ER 384 (Solicitor) : (1939) 1 KB 194 : 54 TLR 861; Bagot v. Stevens
Scanlar & Co ., (1964) 3 All ER 577 (Architect) : (1964) 3 WLR 1162.
40
FLEMING, Law of Torts, (6th Edition), pp. 168, (169).
41
Coupland v. Arabian Gulf Petroleum Co. , (1983) 3 All ER 226, p. 228 (CA) : (1983) 1 WLR 1136. The
election may be made at any time before judgment; Mahesan v. Malaysia Government Officers Co-
operative Housing Society Ltd. , (1978) 2 All ER 405 (411) (PC) (1979) AC 374 : (1978) 2 WLR 444 (Case
of money had and received and fraud.) .
42
Jarvis v. Moy , (1936) K.B. 399 (Stockbroker flouting specific instructions.).
43
Midland Bank Trust Co. Ltd. v. Hett., Stubbs & Kemp , (1978) 3 All ER 571 : (1978) 3 WLR 167.
44
Bagot v. Stevens Scanlon & Col ., (1964) 3 All ER 577 holding the contrary for Architect is no longer good
law. See, WINFIELD & JOLOWICZ, Torts, 12th edition (1984), p. 4; SALMOND & HEUSTON, Torts,
(1992), 20th edition, p. 13.
45
(1990) 1 All ER 568 : (1990) AC 605 (H.L).
46
Ibid , p. 575.
47
Punjab National Bank v. de Boinville , (1992) 3 All ER 104 (CA), p. 117 : (1992) 1 WLR 1138.
48
See note 43, supra .
49
(1994) 3 All ER 506 : (1995) 2 AC 145 : (1994) 3 WLR 761 (HL).
50
Ibid , p. 530.
51
AIR 1998 SC 223, p. 227 : (1997) 6 SCC 370 [LNIND 1997 SC 1696].
52
White v. Warrick , (1953) 2 All ER 1021 : (1953) 1 WLR 1285 (CA); Hall v. Brooklands Club , (1933) 1 K.B.
205 (213).
53
Page 18 of 24
Henderson v. Merrett Syndicates Ltd., supra, p. 530.

54
Ross v. Counters , (1979) 3 All ER 580 : (1980) Ch 297 : (1979) 3 WLR 605; Junior Books Ltd. v. Veitchi
Co. Ltd. , (1982) 3 All ER 201 (HL). See , p. 483, post .
55
WINFIELD & JOLOWICZ, 12th edition, Tort, p. 7.
56
(1985) 2 All ER 947 (957) : (1986) AC 519 : (1986) 1 WLR 392 (PC).
57
Reid v. Rush & Tompkins Group Plc , (1989) 3 All ER 228 : (1990) 1 WLR 212 : (1989) 2 Lloyd's Rep 167
(CA).
58
China and South Sea Bank Ltd. v. Tan , (1989) 3 All ER 839 (PC), p. 841.
59
Downsview Nominess v. First City Corp. Ltd. , (1993) 3 All ER 626 (PC), p. 638 (A receiver or manager of a
company appointed by debenture holders has only to act in good faith). Here the Privy Council made
reference to CBS Songs Ltd. v. Amstrad Consumer Electronics plc , (1988) 2 All ER 484 (HL), p. 497;
Caparo Industries (P) Ltd. v. Dickman , (1990) 1 All ER 568 (HL) and Murphy v. Brentwood District Council
, (1990) 2 All ER 908 : (1991) 1 AC 398 (HL).
60
ANSON, English Law of Contract, 22nd edition, p. 603. United Australia Ltd. v. Barclays Bank Ltd., (1947)
AC 1 (27) (LORD ATKIN); Fibrosa Spolka Akcyjna v. Fairbairn Lawson Cambe Barbour Ltd., (1943) AC 32,
(61) (LORD WRIGHT); Westdeutsche Landesbank Girozentrale v. Islington London BC , (1996) 2 All ER
961 : 1996 AC 669 (HL), p. 996; Thomas Abraham v. National Tyre & Rubber Co. , AIR 1974 SC 602 (606)
: (1973) 3 SCC 458 : (1972) 1 SCWR 372. The subject of quasi- contracts is dealt with in Chapter V of the
Indian Contract Act. For a recent case on unjust enrichment, see,Lipkin Gorman (a firm) v. Karpnale Ltd.,
(1992) 4 All ER 521 : (1991) 2 AC 548 (HL) (A thief gambled with stolen money and lost. It was held that
the owner could recover the money from the person who won in gambling from the thief).
61
Under the English law till recently the mistake had to be one of fact and not of law. Under the Indian law,
the mistake may be even one of law (Section 70,Contract Act ) : Sales Tax Officer, Banaras v. Kanhaiyalal
Mukund Lal Saraf , AIR 1959 SC 135 : 1959 SCR 1350 [LNIND 1958 SC 107] : 1959 SCJ 53 [LNIND 1958
SC 107]. The English law also started moving in the same direction. In Woolwich Building Society v. Inland
Revenue Commissioners (no. 2) , (1992) 3 All ER 737 : (1992) 3 WLR 366 : (1993) AC 70 (HL), it was held
that money paid as tax under ultravires regulations can be recovered back). More recently it has been held
that there is a general right to recover money paid under a mistake, whether of fact or law, subject to the
defences available in the law of restitution : Kleinwort Benson Ltd. v. Lincoln City Council, (1998) 4 All ER
513 (HL). Kanhaiyalal's case was decided by a bench of 5 judges and was approved by a 7-judge bench in
the State of Kerala v. Aluminium Industries Ltd ., (1965) 16 STC 689 [LNIND 1965 KER 88] : 1965 Ker LT
517 (SC). In Mafatlal Industries Ltd. v. Union of India , (1996) 9 Scale 457 [LNIND 1996 SC 2970] : (1996)
11 JT 283 [LNIND 1996 SC 2970] : (1997) 5 SCC 536 [LNIND 1996 SC 2186], it has been held that refund
can be allowed only if the burden has not been passed on to another person.
62
WINFIELD and JOLOWICZ, Tort, (12th edition, 1984), p. 8.
63
Section 357 of the Code of Criminal Procedure
Page 19 of 24
64
Rookes v. Barnard, (1964) AC 1129 : (1964) 1 All ER 367; Cassell & Co. Ltd. v. Broome, (1972) AC 1027 :
(1972) 1 All ER 801.
65
Smith v. Salwyn, (1914) 3 KB 98 : 111 LT 195. The rule did not bar an action but was a ground for staying
it. It was based on the public policy that claims of public justice must take precedence over those of private
reparation. The rule, however, became an anomaly after the police was entrusted with the duty to
prosecute the offenders.
66
Keshab v. Maniruddin , (1908) 13 CWN 501; Abdul Kawder v. Muhammad Mera , ILR (1881) 4 Mad 410 .
67
Section 1, Criminal Law Act, 1967.
68
SETALVAD, Common Law in India, p. 109.
69
Popatlal Gokaldas Shah v. Ahmedabad Municipal Corporation , AIR 2003 Guj 44 [LNIND 2002 GUJ 392],
p. 55.
70
POUND, Selected Essays, p. 86; STREET, Torts, (6th edition), p. 3.
71
“But acts or omissions which any moral Code would censure cannot in a practical world be treated so as to
give a right to every person injured by them to demand relief. In this way rules of law arise which limit the
range of complaints and the extent of their remedy” : Donoghue v. Stevenson, (1932) AC 562 : 48 T.L.R.
494 (HL) per LORD ATKIN.
72
For example, privileged occasions, where the interest of the person defamed in his reputation is
subordinated to the interest of the person defaming in the exercise of freedom of speech on these
occasions.
73
Rogers v. Rajendro Dutt, (1860) 8 MIA 103 (136) : 13 Moore PC 209. An empty threat to prosecute is not
actionable : Banwari Lal v. Municipal Board, Lucknow , (1941) OWN 864 : AIR 1941 Oudh 572 : 1941 OLR
542.
74
Vol. II, p. 786.
75
Per CAVE, J., in Allen v. Flood, (1898) AC 1, 29 : 77 LT 717.
76
Per BAYLEY, J., in Hannam v. Mockett , (1824) 2 B & C 934 (937).
77
Lyon v. Fishmongers’ Company , (1876) 1 App. Cas. 662.
78
Winterbottam v. Lord Derby , (1867) LR 2 Ex 316 (321); Iveson v. Moore , (1699) 1 Ld. Raym. 486; Ricket
v. Metropolitan Ry. Co. , (1864) 5 B & S 149 (156) : LR 2 HL 175.
Page 20 of 24
79
(1703) 2 Ld. Raym. 938 (955).
80
An action for slander may be maintained without proof of actual damage in exceptional cases e.g.,
imputation of a criminal offence. Under English law normally actual damage is required for an action for
slander though not for libel. The Indian Law does not recognise this distinction. Libel and slander are both
in India actionable per se . See , Chapter XII, title 4(i) and (ii).
81
Winsmore v. Greenbank , (1745) Willes 577 (581).
82
“An act may be mischievous in two ways—either in its actual result or in its tendencies. Hence, it is that
legal wrongs are of two kinds. The first consists of those in which the act is wrongful only by reason of
accomplished harm which in fact ensues from it. The second consists of those in which the act is wrongful
by reason of its mischievous tendencies as recognised by the law, irrespective of the actual issue.”
SALMOND, Jurisprudence, 12th edition, (1966), p. 355.
83
Kali Kissen Tagore v. Jodoo Lal Mullick , (1879) 5 CLR 97 (101) : (1878) 6 IA 190 (195). It is not necessary
to show that there has been any subsequent injury consequent on such infringement: see, Ramachand
Chuckerbutty v. Nuddiar Chand Ghose , (1875) 23 WR 230; Ramphul Sahoo v. Misree Lall , (1875) 24 WR
97; contra, Naba Krishna v. Collector of Hooghly , (1869) 2 Beng LR (ACJ) 276; Shama Churn v. Boidonath
, (1869) 11 Suth WR 2; Seeta Ram v. Shaikh Kummeer Ali , (1871) 15 Suth WR 250; Kaliappa v. Vayapuri ,
(1865) 2 MHC 442; Nga Myat Hmwe v. Nga Yi , (1906) UBR (1904-1906), Tort, p. 9; Maung Thit Sa v.
Maung Nat , (1922) 1 BLJ 146.
Where attachment proceedings are taken bona fide in the belief that the judgment-debtor has an interest in
the property, the plaintiff is not entitled to any damage: Sain Dass v. Ujagar Singh , ILR (1939) 21 Lah 191 :
186 IC 646 : AIR 1940 Lah 21 .
84
Bhikhi Ojha v. Harakh Kandu, (1889) 9 AWN 89.
85
Narayan v. Balkrishna, (1872) 9 BHC (ACJ) 413. A person may possess the right to worship an idol at
particular place when it is carried in procession or otherwise: Nagiah Bathudu v. Muthacharry, (1900) 11
MLJ 215; Subbaraya Gurukul v. Chellappa Mudali , ILR (1881) 4 Mad 315 ; Krishnaswami Aiyangar v.
Rangaswami Aiyangar, (1909) 19 MLJ 743. The right of worship including any special right of worship is a
civil right: Subba Reddi v. Narayana Reddi, (1911) 21 MLJ 1027 [LNIND 1911 MAD 244].
86
Andi Moopan v. Muthuveera Reddy, (1915) 29 MLJ 91 : AIR 1916 Mad 593 : 29 IC 248.
87
Rama Odayan v. Subramania Aiyar , ILR (1907) 31 Mad 171, following Quinn v. Leathem, (1901) AC 495 :
65 JP 708 : 85 LT 289.
88
Purshottamdas Parbhudas v. Bai Dahi , (1940) 42 Bom LR 358 : AIR 1940 Bom 205 : ILR (1940) Bom 339.
89
Ashby v. White , (1703) 2 Ld. Raym. 938.
90
Page 21 of 24
Tozer v. Child , (1857) 7 El & B1 377. See also, Chunilal v. Kripashankar , (1906) 8 Bom LR 838 [LNIND
1906 BOM 105] : ILR 31 Bom 37. Express malice is not necessary. If the refusal is not in good faith, which
implies due care and diligence, the person refusing to register the vote will be liable : Draviam Pillai v. Cruz
Fernandez, (1915) 29 MLJ 704 : AIR 1916 Mad 569 : 31 IC 322.
91
The Municipal Board of Agra v. Asharfi Lal , (1922) 44 All 202 : AIR 1922 All 1 : 20 All LJ 1.
92
Nixon v. Herndon , 273 U.S. 536.
93
Marzetti v. Williams , (1830) 1 B & Ad 415.
94
Per HANKFORD, J., in Cloucester Grammar School , (1410) YB 11 Hen IV, fo. 47, pl. 21, 22.
95
See, Gerrard v. Crowe, (1921) 1 AC 395. It is lawful for a person to erect an embankment on his land to
protect his land from the influx of water from adjoining land : Shanker v. Laxman , AIR 1938 Nag 289 : ILR
(1938) Nag 239 : 176 IC 663.
96
See, Dhanusao v. Sitabai , AIR [1948] Nag 698 .
97
District Board, Manbhum v. S. Sarkar , AIR 1955 Pat 432 : 1955 BLJR 492 : ILR 34 Pat 661.
98
Chasemore v. Richards, (1859) 7 HLC 349 ; but see, Babaji v. Appa , (1923) 25 Bom LR 789 [LNIND 1923
BOM 58] : AIR 1924 Bom 154 : 77 IC 131.
99
(1843) 12 M & W 324.
1
Mayor & Co. of Bradford v. Pickles, (1895) AC 587.
2
Salt Union Ltd. v. Brunner, Mand & Co ., (1906) 2 KB 822.
3
Stephens v. Anglian Water Authority , (1987) 3 All ER 379 (CA).
4
Wilson v. Waddell , (1876) 2 App Cas 95; Fletcher v. Smith , (1877) 2 App Cas 781; Smith v. Kenrick,
(1849) 7 CB 515; Westhoughton Coal and Cannel Co. v. Wigan Coal Corporation, (1939) Ch 800.
5
Cloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 21, 23.
6
Quinn v. Leathem, (1901) AC 495, 539 : 70 LJPS 6.
7
Page 22 of 24
Mogul Steamship Co. v. Mc Gregor, Gow & Co ., (1892) AC 25 : 61 LJQB 295. See , Chapter XIV, title
4(B), text and notes 63, 64, p. 376.
8
Earl Cowley v. Countess Cowley, (1901) AC 450.
9
Day v. Brownring , (1878) 10 Ch D 294 : 39 LT 553.
10
Butt v. Imperial Gas Co. , (1866) LR 2 Ch App 158.
11
Dickson v. Reuter's Telegraph Company, (1877) 3 CPD 1 : 47 LJCP 1.
12
Electrochrome Ltd. v. Welsh Plastics Ltd ., (1968) 2 All ER 205.
13
Rogers v. Rajendro Dutt , (1860) 8 MIA 103 : 13 Moore PC 209.
14
Dhadphale v. Gurav , (1881) 6 Bom 122. See, Bindachari v. Dracup, (1871) 8 BHC (ACJ) 202(refusal of a
pleader to appear in a case under s. 180,Criminal Procedure Code, is no injury); see,Dhondu Hari v. Curtis
, (1907) 9 Bom LR 302; W. H. Rattigan v. The Municipal Committee, Lahore , (1888) PR No. 106 of 1888
(erection of a slaughter-house near a person's house is no injury if no nuisance); Shidramappa v. Mahomed
, (1920) 22 Bom LR 1107 [LNIND 1920 BOM 45] : 59 IC 391 : AIR 1920 Bom 207 (erection of dam to pen
back rainwater is an injury).
15
Anand Singh v. Ramachandra , AIR 1963 MP 28 [LNIND 1961 MP 96]: ILR (1960) MP 854 : 1961 Jab LJ
1352.
16
Vishnu Dutt Sharma v. Board of High School and Intermediate Examination , AIR 1981 All 46 .
17
‘ Damnum Sine Injuria ’ and ‘ Injuria Sine Damnum ’.
18
See, the three meanings assigned to this expression in the judgment of BROWN. L.J., in Ratcliffe v. Evans,
(1892) 2 QB 524 (528) : 66 LT 794. See , General and Special Damages, Chapter IX, titles 1(D)(iii), p. 213.
19
Per HOLT, C.J., in Ashby v. White , (1703) 2 Ld Raym 938 (953).
20
Under Indian Law there is no legal remedy for the breach of a solemn promise made without consideration
whether under seal or not.
21
Per STEPHEN, J., in Bradlaugh v. Gossett, (1884) 12 QBD 271 (285).
22
Per CAVE, J., in In re, Hepburn , Ex parte Smith, (1884) 14 QBD 394 (399).
23
Page 23 of 24
Letand v. Cooper, (1965) 1 QB 232 : (1964) 3 WLR 573 : (1964) 2 All ER 929.
24
Abbot v. Sullivan, (1952) 1 KB 189 (200) : (1952) 1 All ER 226. For example, there is a right to receive a
time-barred debt but there is no remedy to recover it.
25
SALMOND, Torts, 2nd edn. (1910), pp. 8, 9.
26
SALMOND and HEUSTON, Law of Torts, 20th edition, p. 18. At p. 21 the book in defence of SALMOND
now says: “To some extent the critics seem to have misunderstood SALMOND. He never committed
himself to the proposition, certainly untenable now, and probably always so, that the law of torts is a closed
and inexpansible system. — SALMOND merely contended that these changes were not exclusively
referable to any single principle. In this he was probably right.”
27
WINFIELD and JOLOWICZ on Tort, 12 Edn. (1984), p. 14. See further, FRIEDMANN, Legal theory, 5th
edn., p. 528. SETALVAD, the Common Law, p. 109: “A body of rules has grown and is constantly growing
in response to new concepts of right and duty and new needs and conditions of advancing civilisation.”
28
American Restatement of Torts, Art. 1; D.L. LOYD, JURISPRUDENCE, 2nd edition, p. 245. Dr. Mohammed
v. Dr. Mehfooz Ali , 1991 MP LJ 559.
29
Ashby v. White (1703) 2 Ld Raym 938; Chapman v. Pickersgill , (1762) 2 Wils 145 (146): “Torts are
infinitely various, not limited or confined” (PRATT C.J.); Donoghue v. Stevenson, (1932) AC 562 (619) (HL):
“The conception of legal responsibility may develop in adaptation to altering social conditions and
standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life”
(LORD MACMILLAN); Rookes v. Barnard, (1964) AC 1129 (1169) : (1964) 2 WLR 269 (HL): Home Officer
v. Dorset Yacht Co. Ltd ., (1970) 2 All ER 294 : 1970 AC 1004 (HL). The novelty of a claim may raise a
presumption against its validity; see, Wheeler v. Sanerfield, (1966) 2 QB 94 (104) (LORD DENNING M.R.):
“I would not exclude the possibility of such an action; but none as yet has appeared in the books. And this
will not be the first.”
30
CARDOZO: The Nature of the Judicial Process, p. 113; Dr. Mohammed v. Dr. Mehfooz Ali, supra.
31
HOLMES: The Common Law, p. 32; Dr. Mohammed v. Dr. Mehfooz Ali, supra .
32
Ibid. See further Popatlal Gokaldas Shah v. Ahmedabad Municipal Corporation , AIR 2003 Guj 44 [LNIND
2002 GUJ 392], pp. 45, 46.
33
Rookes v. Barnard, (1964) AC 1129 : (1964) 2 WLR 269 (HL).
34
Donoghue v. Stevenson, (1932) AC 562 (HL); Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., (1964) AC
465 : (1963) 2 All ER 575; Home Officer v. Dorset Yacht Co. Ltd. , (1970) 2 All ER 294 : 1970 AC 1004
(HL); Junior Books Ltd. v. Veitchi Co. Ltd. , (1982) 3 All ER 201 (HL); MPSRTC v. Basantibai , (1971) MPLJ
706 (DB) : 1971 Jab LJ 610 : 1971 ACJ 328.
35
Page 24 of 24
Home Officer v. Dorset Yacht Co. Ltd. , (1970) 2 All ER 294 : 1970 AC 1004 (HL) (LORD REID).
36
Donoghue v. Stevenson, (1932) AC 562 (580) : 147 LT 281 (HL) (LORD ATKIN).
37
Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd ., (1984) 3 All ER 529 (534) :
1985 AC 218 (HL). See , page 478, post .
38
PATON, Jurisprudence, (3rd edition), p. 425.
39
Aikens v. Wisconsin , 195 US 194, p. 204 (HOLMES, J); Restatement, Torts 2nd s. 870 ; Christie, Cases
and Materials on the Law of Torts, p. 19; WINFIELD & JOLOWICZ Tort, (12th edition, 1984) p. 14.
40
FLEMING, Law of Torts, (6th edition), p. 661 (662).
41
(1966) 120 CLR 145. But, see, Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor , (1937) 58
CLR 479 (493) per LATHAM, C.J.: “It has been contended that if damage is caused to any person by the
act of any other person an action will lie unless the second person is able to justify his action. Many cases
show that there is no such principle in the law”.
42
(1982) AC 173 : (1981) 3 WLR 33 : (1981) 2 All ER 456 (HL).
43
The Foundation of Tortious Liability, (1939) 7 CLJ 131 ; WINFIELD & JOLOWICZ, Tort, (12th edition 1984),
p. 15; Dr. Mohammed v. Dr. Mehfooz Ali , 1991 MPLJ 559.
44
Gregory v. Portsmouth City Council, (2000) 1 All ER 560 : 2000 AC 419 : (2000) 2 WLR 306 (HL).
45
Annual Review (All ER) 1996, p. 471.
46
(1996) 4 All ER 318.
47
Ibid, p. 332.
48
Tomlinson v. Congbton Borough Council , (2003) 3 All ER 1122, p. 1663 (HL).
49
CBS Songs Ltd. v. Amstrad Consumer Electronics plc , (1988) 2 All ER 484, p. 497 (HL) (LORD
TEMPLEMAN).
50
See , pp. 59, 60, 61 post.
End of Document
CHAPTER II SOME GENERAL ELEMENTS IN TORTS
1. ACT AND OMISSION
IT has already been seen that to constitute a tort there must be a wrongful act. 1 The word “ act ” in this context is
used in a wide sense to include both positive and negative acts, i.e., acts and omissions. 2 Wrongful acts which
make a person liable in tort are positive acts and sometimes omissions. Acts and omissions must be distinguished
from natural occurrences beyond human control such as lightening and earthquake for which a person cannot be
held liable. They must also be distinguished from mere thoughts and intentions “which are by themselves harmless,
hard to prove and difficult to discipline”. 3 There is also a basic distinction between an act and an omission. Failure
to do something in doing an act is not an omission but a bad way of performing the act. For example, if a lawyer
gives an opinion without taking notice of the change in law brought about by a reported decision of the Supreme
Court, he would not be guilty of an omission but of performing the act of giving his opinion in a bad way. “An
omission is failure to do an act as a whole.” 4
Generally speaking the law does not impose liability for mere omissions. 5 An omission incurs liability when there is
a duty to act. 6 The point can be explained by referring to the well-known example that a person cannot be held
responsible for the omission of not rescuing a stranger child whom he sees drowning even though he can rescue
him without any appreciable exertion or risk of harm to himself. 7 But the result would be different if the child is one
for whose safety and welfare there is a duty laid on the person who finds him drowning. Therefore, in the above
example a parent or guardian will be held liable for failure to attempt a rescue for it would then be a case of an
omission where there is a duty to act. Even in those cases where there is no duty to rescue another, if a person
starts the rescue work, he may be held liable for not properly performing the work if he leaves other worse off than
he would otherwise have been. 8 Here the liability arises not because of any omission but for doing the act of
rescue in a bad way. Another example of an actionable omission can be found in the duty of an occupier to abate a
natural hazard. A person on whose land a hazard naturally occurs and which threatens to encroach on to another's
land thereby threatening to cause damage, is under a duty, if he knows or ought to know of the risk of
encroachment, to do what is reasonable in all the circumstances to prevent the risk of the known or foreseeable
damage to the other person or his property and is liable in nuisance if he does not. 9
2. VOLUNTARY AND INVOLUNTARY ACTS
According to a theory propounded by Brown and accepted amongst others by AUSTIN, STEPHEN and HOLMES a
voluntary act may be distinguished from an involuntary act by dividing the former into “(1) a willed muscular
contraction, (2) its circumstances and (3) its consequences” 10 . An act is innocuous or wrongful because of the
circumstances in which it is performed and the consequences which it produces. “For instance, to crook the
forefinger with a certain force is the same act whether the trigger of a pistol is next it or not. It is only the
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surrounding circumstances of a pistol loaded and cocked, and of a human being in such relation to it as to be
manifestly likely to be hit that make the act a wrong.” 11 An act is involuntary when the muscular contraction is not
willed. This theory has not been accepted by some others for the reasons that it rests upon dubious psychology, it
is inappropriate for the problem of omissions and it imposes upon the meaning of the term “act” a limitation which is
contrary to the common usage of speech. 12 In common speech one includes all the relevant circumstances and
consequences under the name “act” . The act of murdering a person by shooting at him is one act and not merely
the muscular contraction of pressing the trigger. The wrongful act of trespass on land includes the circumstance
that the land belongs to another and not merely the bodily movement by which the trespasser makes his entry on it.
According to this view “an act has no natural boundaries” and “it is for the law to determine in each particular case
what circumstances and what consequences shall be counted within the compass of the act with which it is
concerned.” 13 Omissions like positive acts may also be voluntary or involuntary. When a parent fails to rescue his
child because he has fallen asleep or because he is suffering from insanity, the omission is involuntary though it
does not involve any question of muscular contractions. The common feature of involuntary acts and omissions
according to this view is “not in the absence of any actual exercise of will, but in the lack of ability to control one's
behaviour; involuntary acts are those where the actor lacks the power to control his actions and involuntary
omissions are those where the actor's lack of power to control his actions renders him unable to do the act
required”. 14 An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not
a tort. 15
In Olga Tellis v. Bombay Municipal Corporation , 16 the Supreme Court referring to the inordinate helplessness of
pavement dwellers of Bombay observed: “The encroachments committed by those persons are involuntary acts in
the sense that those acts are compelled by inevitable circumstances and are not guided by choice.” These
observations cannot be understood to mean that an act committed out of helplessness arising out of poverty is an
involuntary act under the Law of Torts. The Supreme Court in the sentence following the above observations said
that trespass is a tort and pointed out that necessity is a plausible defence. 17 Had the court intended to lay down
that the encroachments were involuntary in the sense known to the Law of Torts and for that reason not actionable
there was no question of suggesting necessity as a defence.
3. MENTAL ELEMENTS
Even a voluntary act, except in those cases where the liability is strict, is not enough to fasten liability and it has to
be accompanied with requisite mental element, i.e., malice, intention, negligence or motive to make it an actionable
tort assuming that other necessary ingredients of the tort are present.
3(A) Malice
Malice in the popular sense means spite or ill-will. But in law malice has two distinct meanings : (1) Intentional doing
of a wrongful act and (2) Improper motive. 18 In the first sense malice is synonymous with intention. In the second
sense malice refers to the motive and in this sense it includes not only spite or ill-will but any motive which the law
disapproves. Malice in the first sense was described by BAYLEY J., in the following words : “Malice in common
acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without
just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it out of malice , because I do it
intentionally and without just cause or excuse. If I maim cattle without knowing whose they are, if I poison a fishery,
without knowing the owner, I do it out of malice , because it is a wrongful act, and done intentionally.” 19 The word
“ wrongful ” imports the infringement of some right, i.e., some interest which the law recognises and protects. Where
a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving
that his motive in the exercise was spite or malice in the popular sense. 20 A wrongful act, done knowingly and
with a view to its injurious consequences, may be called malicious: But such malice derives its essential character
from the circumstances that the act is intentionally done and constitutes a violation of the law. 21 Here also the use
of the word “ malice ” is in the first sense i.e., intentional wrong doing which is also known as “ malice in law “. Thus
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“ Malice in law ” means an act done wrongfully, and without reasonable and probable cause, and not, as in common
parlance, an act dictated by angry feeling or vindictive motive. 22 “ Malice in law ” is “ implied malice ” when from
the circumstances of the case, the law will infer malice. Malice in the second sense i.e., improper motive is
sometimes known as “ express malice “, “ actual malice ” or “ malice in fact ” which are synonymous expressions.
Malice in this sense i.e., improper motive is for example relevant in the tort of malicious prosecution. The topics of “
Intention ” and “ Motive ” are hereinafter discussed separately. 23
3(B) Intention, Negligence and Recklessness
Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. “It is
common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man.”
24 This dictum of BRIAN C.J., only means that no one can be sure of what was in another's mind because what a
person thinks can be inferred only from his conduct. An act is intentional as to its consequences if the person
concerned has the knowledge that they would result and also the desire that they should result. 25
It is a case of negligence when the consequences are not adverted to though a reasonable person would have
foreseen them. 26 It is “ recklessness ” when the consequences are adverted to though not desired and there is
indifference towards them or willingness to run the risk. 27 Recklessness is sometimes called “Gross negligence”
but very often and more properly it is assimilated with intention. 28 It is sometimes said that “a party must be
considered in point of law to intend that which is the necessary or the natural consequence of that which he does”.
29 This is too wide a statement as it fails to distinguish between intentional and negligent wrong doing. 30
3(C) Motive
Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First, intention relates to
the immediate objective of an act, whereas, motive refers to the ulterior objective. Secondly, motive refers to some
personal benefit or satisfaction which the actor desires whereas intention need not be so related to the actor. 31
When A poisons B, the immediate objective is to kill B and so this is A's intention. The ulterior objective of A may be
to secure B's estate by inheritance or under a will executed by him and this objective will be A's motive. Motive is
generally irrelevant in tort. In Allen v. Flood , 32 LORD WATSON said: “Although the rule may be otherwise with
regard to crimes, the law of England does not take into account motive as constituting an element of civil wrong.
Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its
necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether
the motive which prompted it be good, bad, or indifferent.” An act which does not amount to a legal injury cannot be
actionable because it is done with a bad motive. 33 It is the act, not the motive for the act, that must be regarded. If
the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it
may be, will not supply that element. 34 The exceptional cases where motive is relevant as an ingredient are torts
of malicious prosecution, malicious abuse of process and malicious falsehood. Motive is also relevant in the torts of
defamation, nuisance and conspiracy. In some cases there may be a plurality of purposes and it may become
necessary to decide as to what is the predominant purpose. For example, if persons combine to protect their own
interests and to damage another person they would be liable for the tort of conspiracy if the predominant purpose is
to cause damage and damage results; but if the predominant purpose is protection of their legitimate interests they
would not be liable even if damage is caused to another person. 35
Cutting off underground water supply.— A sank a well on his land and thereby cut off underground water-supply
from his neighbour B, and B's well was dried up. It was not unlawful for a land-owner to intercept on his own land
underground percolating water and prevent it from reaching the land of his neighbour. The act did not become
unlawful even though A's motive in so doing was to coerce B to buy his land at his own price. A, therefore, was not
liable to B, however improper and malicious his motive might be. 36
3(D) Distinctions Illustrated
The distinctive features of a voluntary act and characteristic of different mental elements have been noticed above.
These are highlighted by an admirable illustration given by Prof. Street: “If a man throws a stone at a woman, his
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trespass to her person is intentional; that he threw it because she had jilted him would be immaterial in determining
his liability in trespass—that would be his motive. If he did not throw the stone for the purpose of hitting her but
ought to have foreseen that it was likely that the stone would hit her, his act would be unintentional but nevertheless
negligent. If the stone hit her solely because it rebounded off a tree at which he had thrown it his conduct would be
voluntary; and the hit would be accidental. But, if, while he was holding the stone in his hand, a third party seized
his arm and by twisting it compelled him to release his hold on it, whereupon it fell on the woman, his conduct would
be involuntary and could never give rise to liability on his part.” 37 Two comments here are necessary. In the case
where the stone thrown at a tree rebounds and hits the woman it is assumed that the risk that the stone on rebound
may hit the woman could not be reasonably foreseen which negatives negligence, and, therefore, it is an accident
though the act of throwing the stone is voluntary. In this case also there will be no liability. 38 In the last case,
where a third person twists the arm of the person holding the stone and the stone gets released, the act of the
person holding the stone is involuntary and so he would not be liable for trespass; but, the person twisting the arm
and compelling the release of the stone so that it may hit the woman will be guilty of trespass.
4. MALFEASANCE : MISFEASANCE : NON-FEASANCE
The term “ malfeasance ” applies to the commission of an unlawful act. It is generally applicable to those unlawful
acts, such as trespass, which are actionable per se and do not require proof of intention or motive. The term
“misfeasance” is applicable to improper performance of some lawful act for example when there is negligence. The
term “non-feasance” applies to the omission to perform some act when there is an obligation to perform it39. Non-
feasance of a gratuitous undertaking does not impose liability; but misfeasance does. 40 Where there is a duty
towards the individual injured, to do the act by the omission whereof the injury is caused, the non-feasance of such
an act gives rise to a cause of action to the same extent as a misfeasance of an act of which there is a duty to
perform in a particular manner. 41 The terms malfeasance, misfeasance and non-feasance are of very wide import
but they cannot cover a case of breach of public duty which is not actuated with malice or bad faith such as
defective planning and construction of a bundh. 42
5. FAULT
It has been seen that damage caused to a person when no legal right is violated does not give rise to any tortious
liability even if the act causing the damage is done intentionally with an improper motive. 43 It has also been
noticed that mental element such as intention, negligence, malice or motive in association with an act or omission
which is violative of a right recognised by law plays an important role in creating liability. 44 Tortious liability here
has an element of fault to support it. There is, however, a sphere of tortious liability which is known as absolute or
more properly strict where the element of fault is conspicuously absent. One of the important examples of strict
liability is the rule in Rylands v. Fletcher, 45 that the occupier of land who brings and keeps upon it anything likely
to do damage if it escapes is bound at his peril to prevent its escape and is liable for the direct consequences of its
escape even if he has not been guilty of any negligence. More important and a very recent example of strict liability
is the rule laid down in M.C. Mehta v. Union of India, 46 that an enterprise engaged in a hazardous or inherently
dangerous activity is strictly and absolutely liable for the harm resulting from the operation of such activity. Another
example of liability without fault is the liability of a master for the tort committed by his servants in the course of
employment. There are also many duties and liabilities imposed by statutes on employers, e.g. , the Factories Act,
the Workmen's Compensation Act, where the element of fault is absent. A large increase in motor accidents gave
rise to the view, 47 that the victims and their dependants should be allowed certain amount of compensation on no
fault basis without prejudice to their right of getting higher compensation on the principle of fault and this was first
implemented in India by the Motor Vehicles (Amendment) Act, 1982. Damages from radioactive properties of
Page 5 of 9
nuclear matter to person or property of third parties highlighted in international conventions led to imposition of strict
liability by the Nuclear Installation Act, 1965 (U.K.). 48 Thus, at one extremity are the situations where damage
though intentionally caused is not actionable and at the other extremity are the situations where the law imposes
strict liability without any fault of the defendant. Between these two extremities lies the area where existence of fault
in the form of intention, negligence or motive is essential to fasten liability on the wrongdoer. As stated by HOLMES:
“As the law on the one hand allows certain harms to be inflicted irrespective of the moral condition of him who
inflicts them, so at the other extreme, it may on the grounds of policy throw the absolute risk of certain transactions
on the person engaging in them, irrespective of blameworthiness in any sense. Most liabilities in tort lie between
these two extremes, and are founded on the infliction of harm which the defendant had a reasonable opportunity to
avoid at the time of acts or omissions which were its proximate cause.” 49 The sphere of strict liability falling at one
extremity is not insignificant and cannot be ignored as a mere aberration and a theory propounded, as was done by
SALMOND, 50 that fault is the basis of all tortious liability. The views of SALMOND have not been shared by
others. 51 Apart from cases of strict liability, the rule that damages allowable are proportioned to the damage or
loss and not fault also negatives the theory of fault. For example, slight negligence may unfortunately cause severe
damage to a plaintiff and the defendant may have to pay huge amount as compensation; whereas, gross
negligence may fortunately cause insignificant damage and the plaintiff may then be allowed only nominal
compensation. Moreover, prevalence of insurance both optional and compulsory 52 to cover risk and liability has
diluted the deterrent factor in the award of compensation. This is not to say that we have reached the stage when
the element of fault can be ignored. It has already been stated that the wide area falling within the two extremities of
no liability and strict liability is covered by torts where fault in the form of intention, negligence or motive is essential
to fasten liability. There are also instances where situations originally falling within the sphere of strict liability have
moved upwards and are now embraced within the area of fault liability. For example, the tort of trespass to person
which was initially thought to be of strict liability has now come to be recognised as one requiring negligence of the
defendant as an essential ingredient. 53 Further, although the practice of insuring risk and liability is growing (it is
compulsory in respect of accidents arising out of use of motor vehicles) it has not become so wide as to cover all
forms of risks and liabilities and the award of aggravated and exemplary damages 54 has the tendency of deterring
the defendant to repeat and others in similar situations to commit the wrongs for which damages are awarded. In
view of these diversities all that can be said is that if one has to discern some common factor in tortuous liabilities,
that factor is flexible public policy, and not fault, which makes the courts 55 and the legislature 56 to recognise
new concepts of right and duty to meet the needs of advancing civilisation. When public policy influenced by social
justice or similar other considerations requires that the plaintiff be compensated irrespective of fault, the law
provides for strict liability and where there are no such considerations, public policy requires that the defendant
should not be made to pay for the loss arising from an event which he could not have avoided and so the law
provides liability on principle of fault.
1
Chapter 1, title 3(A) and 3(B), pp. 12-13.
2
See also, the definition of ‘act’ in Section 3(2), General Clauses Act, 1897.
3
SALMOND, Jurisprudence, 12th edition, 1966, p. 82.
4
CLERK & LINDSELL, Torts, (15th Edn.), p. 34. The purpose of the distinction between act done in a bad
way and omission “is to distinguish between regulating the way in which an activity may be conducted and
imposing a duty to act upon a person who is not carrying on any relevant activity” Stovin v. Wise , (1996) 3
All ER 801 (HL), p. 820.
5
Smith v. Little Woods Organisation Ltd. , (1987) 1 All ER 710, p. 729 : (1987) 2 WLR 480 (HL); Stovin v.
Wise , supra , p. 819.
Page 6 of 9
See , Chapter XIX, title 1(B)(i)(f), p. 490.

7
“A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a
large and indeterminate class of people who happen to be able to do something. Why should one be held
liable rather than another?” Stovin v. Wise , supra , p. 819.
8
CLERK & LINDSELL, Torts, (15th Edn.), p. 35, citing the Ogopogo , (1970) 1 Lloyd's Rep. 257 (affirmed in
(1971) 2 Lloyd's Rep. 410 : (1972) 22 DLR 545) and distinguishing, East Suffolk Catchment Board v. Kent,
(1941) AC 74, where the plaintiff was not worse off.
9
Leakey v. National Trust for Places of Historic Interest or National Beauty , (1980) 1 All ER 17 : 1980 QB
485 : (1980) 2 WLR 65 (CA); Goldman v. Hargrave, (1966) 2 All ER 989 (PC) : (1967) 1 AC 645; Stovin v.
Wise, (1996) 3 All ER 801, pp. 819, 820 (HL).
10
SALMOND, Jurisprudence, (12th edition, 1966), p. 353.
11
HOLMES, The Common Law, p. 46.
12
SALMOND, Jurisprudence, 12th edn., pages 354, 355.
13
Ibid , p. 354.
14
Ibid , pp. 354 (355).

15
STREET, Torts, 6th edition, p. 17.
16
(1985) 3 SCC 545 [LNIND 1985 SC 215], pp. 584, 585 : 1986 Cri LR 23 : AIR 1986 SC 180.
17
See , text and note 1, p. 102.

18
SALMOND AND HEUSTON, Torts, (1992), 20th edition, p.20.
19
PER BAYLEY, J., in Bromage v. Prosser , (1825) 4 B & C 247, 255.

20
PER BOWEN, L.J., in Mogul Steamship Company v. Mcgregor, Gow & Co ., (1889) 23 QBD 598, 612 :
(1892) AC 25.
21
Page 7 of 9
PER LORD WATSON in Allen v. Flood, (1898) AC 1 : 14 TLR 125.

22
Stockley v. Hornidge , (1837) 8 C & P 11; Collector of Sea Customs v. P. Chithambaram , ILR (1876) 1
Mad 89 (FB); Sova Rani Dutt v. Debabrata Dutt , AIR 1991 Cal 186 [LNIND 1989 CAL 340], p. 189.
23
See, titles 3(B) and 3(C), infra .

24
PER BRIAN, C.J., in Year Book Pasch . 17 Edw., 4 fol. 2, pl. 2.

25
SALMOND, Jurisprudence, 12th edition, (1966), p. 367 (footnote); CLERK and LINDSELL, Torts, 15th
edition, p. 44; WINFIELD & JOLOWICZ, Tort, 12th edition, (1984), p. 44.
26
CLERK and LINDSELL, Torts, 15th edition, p. 44. Negligence as a separate tort is dealt with in Chapter
XIX.
27
Ibid.
28
Ibid.
29
R. v. Harvey, (1823) 2 B & C 257 (264).

30
SALMOND, Jurisprudence, 12th edition, (1966), p. 371.
31
Ibid , p. 372.
32
(1898) AC 1, 92; Nan Kee v. Au Fong, (1934) 13 Ran 175 : AIR 1935 Rang 73 (2).
33
Stevenson v. Newnham, (1853) 13 CB 285, 297; Vishnu v. T.L.H. Smith Pearse , ILR (1949) Nag 232 : AIR
1949 Nag 362 .
34
PER LORD MACNAGHTEN in Mayor & C. of Bradford v. Pickles, (1895) AC 587, 601.
35
Crofter Handwoven Harris Tweed Co. v. Veitch, (1942) AC 435 (445) : 166 LT 173 : (1942) 1 All ER 142
(HL).
36
Mayor & C. of Bradford v. Pickles, (1895) AC 587.

37
Page 8 of 9
STREET, Torts, 6th edition, p.16.

38
Fowler v. Lanning, (1959) 1 All ER 290 : (1959) 1 QB 426; Letang v. Cooper , (1964) 2 All ER 929 : (1965)
1 QB 232 (CA).
40
Elsee v. Gatward , (1793) 5 TR 143.

41
Kelly v. Metropolitan Railway Co ., (1895) 1 QB 944 : 64 LJQB 658 : 72 LT 551.

42
Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat , supra , p. 504 (JT).
43
See , title 3(C), Chapter 1.

44
Title 3, supra .
45
Rylands v. Fletcher , (1868) LR 3 HL 330 : LRI. Ex. 265. See further , Chapter XIX, title 2B.
46
AIR 1987 SC 1086 : (1987) 1 Comp LJ 99 (SC) : (1987) 1 Supreme 65 : (1987) 1 SCC 395 [LNIND 1986
SC 539]. See further , Chapter XIX, title 2(C).
47
Kamla Devi v. Krishanchand , AIR 1970 MP 168 [LNIND 1969 MP 96]: 1970 ACJ 310 (MP), p. 313 : 1970
Jab LJ 310 : 1970 MPLJ 273; Bishan Devi v. Sirbaksh Singh , AIR 1979 SC 1862 : (1980) 1 SCC 273
[LNIND 1979 SC 337] : (1980) 1 SCR 300 : 1979 ACJ 496 (SC); Kashiram Mathur v. Sardar Rajendra
Singh , AIR 1983 MP 24 [LNIND 1982 MP 142]: 1983 ACJ 152 (MP), p. 163 : 1982 MPLJ 803 : 1983 Jab
LJ 113.
48
Blue Circle Industries Plc. v. Ministry of Defence, (1998) 3 All ER 385, p. 404 : (1999) 1 WLR 295 : 1999
Eny.L.R. 22 (CA).
49
HOLMES, The Common Law, p. 116, SETALVAD, The Common Law in India, p. 108.
50
SALMOND, Torts, 6th edition, pp. 12, 13.
51
POLLOCK, A plea for historical interpretation, (1923) 39 LQR 164 (167); WINFIELD and JOLOWICZ, Tort,
(12th Edn., 1984), p. 25; SALMOND & HEUSTON, Torts, (1992) 20th edition, p. 24, CLERK & LINDSELL,
Torts, 15th edition, pp. 10 (11).
52
For example,section 93 of the Motor Vehicles Act, 1939 as amended by Act 47 of 1982 provides for
compulsory insurance to meet claims, arising both on the basis of fault principle and no fault principle.
Page 9 of 9
53
Fowler v. Lanning , (1959) 1 All ER 290 : (1959) 2 WLR 241; Letang v. Cooper , (1964) 2 All ER 929 :
(1964) 3 WLR 575 (CA).
54
Cassell & Co. Ltd. v. Broome, (1972) AC 1027 : (1972) 2 WLR 645 (HL).
55
“The conception of legal responsibility may develop in adaptation to altering social conditions and
standards. The criterion of judgment must adjust and adopt itself to the changing circumstances of life.”
PER LORD MACMILLAN in Donoghue v. Stevenson, (1932) AC 562 (619) : 48 TLR 494 (HL). See, further
observations of BHAGWATI C.J., in M.C. Mehta v. Union of India , AIR 1987 SC 1086 : (1987) 1 SCC 395
[LNIND 1986 SC 539], p. 420 and of SAHAI, J., in Jay Laxmi Salt Works v. State of Gujarat, (1994) 4 SCC
1 : (1994) 3 JT 492, p. 501, which are quoted at p. 4 ante .
56
For example : The Workmen's Compensation Act; The Motor Vehicles (Amendment) Act, 1982.
End of Document
CHAPTER III PERSONAL CAPACITY
All persons have the capacity to sue and be sued in tort. This, however, is a general rule and is subject to
modification in respect of certain categories of persons.
1. CONVICTS AND PERSONS IS CUSTODY
UNDER the Forfeiture Act, 1870, 1 a convict whose sentence was in force and unexpired, and who was not
“lawfully at large under any license” could not sue for an injury to his property, or for recovery of a debt. This
disability has been removed by the Criminal Justice Act, 1948. 2 Under the English law, a convicted person, in
spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication. 3
The conviction and sentence by a court and rules of prison discipline curtail the liberty of a convict, but, subject to
that curtailment, the courts remain the ultimate custodians of his rights and liberties in the same manner as they are
in respect of other citizens. 4 A convict can, therefore, under English law sue for wrongs to his person and property
like any other citizen. The Indian law is the same. “Convicts are not, by mere reason of the conviction, denuded of
all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon
conviction, to live in a prison house entails by its force the deprivation of fundamental freedoms like the rights to
move freely throughout the territory of India or the right to practise a profession. A man of profession would thus be
stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other
freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no
impediment. Likewise, a prisoner or even a convict is entitled to the precious right guaranteed by Article 21 of the
Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by
law.” 5 Conviction of a person, thus, does not draw any ironcurtain between him and his rights and he is not
reduced to a non-person. 6 A convict can, therefore, sue in tort for vindication of his right which is invaded by a
tortious act committed by another. He can thus sue for battery or assault if prison authorities apply excessive force
to enforce prison discipline or apply force for an improper purpose. 7 A convict was attacked by another convict in
Jail and killed due to failure of Jail authorities to protect him. In a petition under Article 32 of the Constitution by the
dependants of the deceased they were awarded R s. 1,00,000 as compensation against the state for violation of the
fundamental right of life protected under Article 21. 8
The state has a higher responsibility in respect of persons in its custody to ensure that they are not deprived of their
right to life. 9 The same principle is applied to a patient detained in a Mental Health Hospital. Where there was a
real and immediate risk of a detained patient committing suicide, there was an operational obligation on the
authorities to do all that could be expected to prevent it. When a patient absconded because of negligence of the
authorities and committed suicide the public authority responsible for the hospital was held liable in damages to the
daughter of the patient for deprivation of right to life under the Human Rights Act, 1998 (U.K.). 10
Among the rights which, in part atleast survive to a prisoner are “three important rights closely related but free-
standing, each of them calling for appropriate legal protection : the right of access to a court, the right of access to
legal advice, and the right to communicate confidentially with a legal advisor under the seal of legal professional
privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably
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necessary to meet the end which justify the curtailments”. 11 Further, a convicted person is not deprived of his
fundamental right of freedom of speech and, subject to rules relating to prison discipline, he cannot merely
communicate with his friends and relations but also with a journalist with a request to further investigate the case for
proving his innocence and for showing that his conviction has resulted in miscarriage of justice. 12
A member of Parliament as an undertrial prisoner is not above the law and is subject to jail discipline. 13 But if he
won the election contesting from jail he can be allowed to take oath as M.P. but he has to be brought back to jail
after taking oath. 14
But a prisoner has no ‘residual liberty’ to sue for false imprisonment for breach of prison rules e.g., when he is
segregated in breach of these rules but he can challenge the segregation by a public law remedy e.g. , a writ
petition; and if conditions of detention are so intolerable that his health suffers he may also have a private law
remedy of suing in negligence. 15
2. ALIEN ENEMY
By an alien enemy is meant a person of enemy nationality or a person residing in or carrying on business in enemy
territory, whatever his nationality. 16 Even a British subject or a neutral residing voluntarily or carrying on business
in enemy territory is in the same position as a subject of hostile nationality and he will be treated as an enemy alien.
17 An enemy alien cannot sue in his own right. 18 He cannot maintain an action unless by virtue of an Order in
Council, or unless he comes into the British Dominions under a flag of truce, a cartel, a pass, or some other act of
public authority putting him in the King's peace. 19 An alien enemy residing within the realm by the express or tacit
licence of the Crown is temporarily free from his enemy character and can invoke jurisdiction of courts. 20 Similar
principles, it would seem, apply in India. Alien enemies residing in India with the permission of the Central
Government, and alien friends, may sue in any court otherwise competent to try the suit, as if they were citizens of
India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in
any such Court. 21 Every person residing in a foreign country, the Government of which is at war with India and
carrying on business in that country without a licence on that behalf granted by the Central Government is deemed
to be an alien enemy residing in a foreign country. 22
3. HUSBAND AND WIFE
The common law relating to married women suffered from serious anomalies. A married woman could not sue for
any tort committed by a third person unless her husband joined with her as plaintiff. She could also not be sued for
a tort committed by her unless her husband was made a defendant. Further, she could not sue her husband and
the husband could not sue her for any tort committed by one against the other. These anomalies have been by and
by removed by legislation. By the Married Women's Property Act, 1882 23 and the Law Reform (Married Women
and Tortfeasors) Act, 1935, 24 a married woman can sue for any tort committed by a third person and can also be
sued for any tort committed by her without joining her husband who cannot be made liable or made party to a suit
simply because he is the husband. Finally, by the Law Reform (Husband and Wife) Act, 1962, 25 each of the
parties to a marriage has the same right of action in tort against the other as if they were not married but the court
has a discretion to stay the proceedings to prevent them from using it as a forum for trivial domestic disputes
without any chance of substantial benefit to either of them. The aforesaid anomalies removed by legislation resulted
from the doctrine of the common law that marital status made the husband and wife one person in the eye of law, a
doctrine which was used to reduce the wife to a subordinate position. Marital status of Hindus, Buddhists, Sikhs,
Jains and Muslims in India is governed by their personal laws and not by the common law. Marriage under these
personal laws does not affect the capacity of the parties for suing or for being sued nor does it confer any protection
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to any of the spouses for any tortious act committed by one against the other. As regards other persons, e.g. ,
Christians who in respect of the marital status may have been subject to the common law, the anomaly to some
extent was removed by the Married Women's Property Act, 1874, under which a married woman to whom the Act
applies can sue or be sued alone. Even if there was ever any anomaly in the Indian law similar in any manner to
those in the common law, it could not survive the impact of the Constitution which in Art. 14 embodies a guarantee
against arbitrariness and unreasonableness.26 The legal position, therefore, appears to be that marriage has no
effect on the rights and liabilities of either of the spouses in respect of any tort committed by either of them or by a
third party. The wife can sue the husband for any tort committed by him against her and the husband can sue the
wife for any tort committed by her against him. 27 The wife against whom a tort has been committed by another
person can sue him without joining the husband and similarly the husband can sue for any tort committed against
him without joining the wife. Each of the spouses can similarly be sued in tort by a third party without joining the
other as a party. Further, a conspiracy between husband and wife is capable of giving rise to tortious liability. 28
4. CORPORATION
A Corporation is a legal person. It may like the State Bank of India, a University or a Metropolitan Council be
created by an Act of the legislature; or it may like a company be created under an Act of the legislature. The
common features of Corporations are a name, perpetuity of existence and capacity to sue and be sued.
Suits by Corporations.— A Corporation cannot obviously bring a suit for torts which are only wrongs against living
persons, e.g. , assault and false imprisonment. It cannot also sue for a tort committed essentially against its
shareholders or employees unless the tort has also some impact on the governance or business or property of the
Corporations. 29 This is for the reason that a Corporation's personality is different and distinct from the individuals
constituting it and the employees acting for it. Subject to these general reservations, a Corporation can sue for torts
committed against itself. A Corporation can thus sue for malicious presentation of a winding-up petition 30 or a libel
charging it with insolvency or with dishonest or incompetent management. 31 It was once held that a Corporation
cannot maintain an action for libel charging it with corruption for it is only individuals and not the Corporation who
can be guilty of such an offence. 32 Recent authorities show that this view is erroneous and that a trading
corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it
in the way of its business. 33
A limited liability company, no less than an individual, can maintain an action for slander without proof of special
damage, where the words are calculated to injure its reputation in relation to its trade or business. 34
Suits against Corporations.— The existence and extent of the liability of a corporation in actions of tort were at one
time a matter of doubt, due partly to technical difficulties of procedure and partly to the theoretical difficulty of
imputing wrongful acts or intentions to fictitious persons. 35
A corporation is undoubtedly liable for torts committed by its agents or servants to the same extent as a principal is
liable for the torts of his agent or an employer for the torts of his servant, when the tort is committed in the course of
doing an act which is within the scope of the powers of the corporation. It may thus be liable for assault, false
imprisonment, trespass, conversion, libel or negligence. 36 It was thought at one time that a corporation could not
be held liable for wrongs involving malice or fraud on the ground that to support an action for such a wrong it must
be shown that the wrong-doer was actuated by a motive in his mind and that “a corporation has no mind”. 37 But
the alter ego doctrine developed later has solved the difficulty. In the words of VISCOUNT HALDONE LC: “A
corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and
directing will must consequently be sought in the person of someboby who for some purposes may be called an
agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of
the corporation.” 38 The doctrine stated above attributes to the corporation the mind and will of the natural persons
or person who have management and control of the actions of the corporation in relation to the act or omission in
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point. 39 By applying this doctrine of attribution as further explained by the Privy Council, 40 a company may be
held liable for the fault of an employee acting in the course of employment even though the employee acted
contrary to the orders of the company 41 or with a corrupt purpose. 42 It is now settled that a corporation is liable
for wrongs even of malice and fraud. A corporation, therefore, may be sued for malicious prosecution or for deceit.
43
It is also settled that an action for a wrong lies against a corporation where the thing done is within the purpose of
the incorporation, and it has been done in such a manner as to constitute what would be an actionable wrong if
done by a private individual. 44
A corporation which is created by a statute is subject only to the liabilities which the Legislature intended to impose
upon it. The liability must be determined upon a true interpretation of the statute under which it is created. 45 A
corporation is liable even if it is incorporated for public duties from the discharge of which it derives no porfit. 46 A
government authority or corporation created by a statute in liable like any private body unless otherwise provided by
statute. 47 It has thus been held that a Development Authority is liable to a consumer under the Consumer
Protection Act 1986.48
There is a difference of opinion on the question whether a corporation is liable for a tortious act of its servants which
is ultra vires the Corporation. One view is that the corporation is not liable 49 the reasoning being that the
corporation could not have empowered the servant to do an act which it itself has no power to do. This view was
taken at a time when the basis of vicarious liability was thought to be an “implied authority” of the master for doing
the tortious act. It is now accepted that the real test for determining the master's vicarious liability is not the
existence of any implied authority but the commission of the tort by the servant “in the course of employment”. The
prevailing view, therefore, is that a corporation is vicariously liable for a tortious act of its servants even though it is
ultra vires provided it is done in the course of employment. 50 Apart from vicarious liability, a corporation will be
directly liable for a tortious act, even if it is ultra vires its powers, if it is authorised or ratified by those who constitute
the “directing mind and will of the corporation.” 51 In Campbell v. Paddington Corporation, 52 a stand was erected
in a highway in pursuance of a resolution passed by the borough council which constituted a public nuisance and
which the corporation had no power to erect. In a suit by a person who suffered special damage the corporation
was held liable as the act was authorised by its council : “To say that, because the borough council had no legal
right to erect it, therefore, the corporation cannot be sued, is to say that no corporation can ever be sued for any tort
or wrong. The only way in which this corporation can act is by its council, and the resolution of the council is the
authentic act of the corporation. If the view of the defendants were correct no company could ever be sued if the
Directors of the Company after resolution did an act which the Company by its Memorandum of Association had no
power to do.” 53 The view taken in this case has met the approval of the leading text-books. 54
In India it has been laid down that : “Whatever difference of opinion there may be on the question of the abstract
legal doctrine as to how far an agent or servant of a corporation can be said to act within the scope of his
employment in respect of a tort which is ultra vires the corporation, it seems to be clear that there is consensus of
authority for holding that a corporation cannot be immune from liability in respect of torts brought about at its
instance on the ground that the act was not intra vires the corporation”. 55
Foreign corporations.— A foreign corporation (i.e., a corporation created by the law of any foreign country) may sue
and be sued for a tort, like any other corporation. 56 A multinational corporation having subsidiaries in different
countries and owning controlling shares in the subsidiaries may be held liable for a tort committed by a subsidiary
company by piercing the veil of incorporation on the reason that the parent company constitutes the directing mind
and will of the subsidiary company. It is on this basis that Union Carbide Corporation (UCC), a multinational
registered in USA, was held liable by SETH, J., of the Madhya Pradesh High Court for the Bhopal gas disaster
which resulted from leakage of poisonous gas from a plant owned by Union Carbide India Ltd. (UCIL), which is a
subsidiary of UCC. 57
Idols. —The liability of the estate of an idol for wrongs committed by its shebait (the person in charge of the idol) is
analogous to the liability of a corporation. 58
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4A. HIGHWAY AUTHORITY
Under the common law public bodies charged with the duty of keeping public roads and bridges in repair, and liable
to an indictment for breach of this duty, were nevertheless not liable to an action for damages at the suit of a person
who had suffered injury from their failure to keep the roads and bridges in proper repair. This anomalous rule of the
common law which “resulted in injustice to many people” 59 has been abrogated in the United Kingdom by the
Highways (Miscellaneous Provisions) Act, 1961. The law is now to be found in the Highways Act, 1980 section 41
of which lays down a statutory obligation on the highway authority to maintain the highway 60 . As a result of this
Act, an action lies against a highway authority for damage due to non-repair; the authority, however, can plead as
defence that it had taken such care as in all the circumstances was reasonably required to secure that the part of
the highway in question was not dangerous for traffic; the Act also enumerates certain matters which the court has
to take into account for the purpose of this defence. The common law duty to repair was absolute and so is the
statutory duty but subject to the availability of the defence allowed by the Act. 61 The duty is to put the road in such
good repair as renders it reasonably passable for the ordinary traffic at all seasons of the year without danger
caused by its physical condition; but the duty does not extend to remove or prevent the formation of snow or ice on
the highway. 62 The duty to maintain the highway under section 4 does not require the Highway Authority to place
on or near the highway sufficient signs giving warning to motorists that they were approaching a dangerous part of
the road. 63 The statutory duty does not also extend to carrying out work on land not forming part of the highway
and the highway authority may also not be held to be in breach of its common law duty of care in failing to cause an
obstruction to be removed which restricted visibility and which contributed to an accident resulting in personal injury.
64 The Act has been construed to confer a right of action only to users of the highway who could prove that they
had suffered physical injury to person or property while using the highway when it was in a dangerous condition due
to want of repair or maintenance, and it has been held that the Act confers no right of action for purely economic
loss resulting from the highway being in dangerous condition. 65
The rule of the common law as existed before the Act was not based on any principle of justice, equity and good
conscience and should not have been applied in India; but, it was followed in some cases. 66 Its abrogation in the
country of its origin on the ground that it was anomalous and unjust now leaves hardly any justification for its further
application in India. 67 Other common law countries have also departed from the common law rule and are inclined
to apply the general principle of negligence to a highway authority. 68
Under the Indian law, the duty to repair and maintain a highway laid on a local authority or a Government is
governed by statutory enactments and the question whether in a particular case a suit lies for damage due to non-
repair would depend upon the construction of the relevant statutory provision and not on any principle of the
common law and prima facie there is no reason to deny liability unless it is expressly or by necessary implication
negatived by the statute. 69 If in a given case the relevant Indian statute is silent in any matter and it is necessary
to look beyond its provisions for guidance, rules of English law as now contained in the Highways Act, 1980 and not
the rules of the common law may be taken notice of and applied for the Act is consistent with the principles of
justice, equity and good conscience. Recently the Highways department of the State of Tamil Nadu was held liable
by the Supreme Court for negligence when a public transport vehicle plunged into a river on collapse of culvert on
the highway. 70
It has recently been held by the House of Lords that the existence of the broad public law duty in section 39 of the
Road Traffic Act that ‘each local authority must prepare and carry out a programme of measures designed to
promote road safety’ did not generate a common law duty of care and a private law action for damages. 71
5. UNINCORPORATED ASSOCIATIONS
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Unincorporated Associations have no corporate existence and are not legal persons. They cannot, speaking
generally, sue or be sued in their name. Any member or officer of such an association has to be sued personally for
tort committed by him or authorised by him. 72 The provisions of Order 1, Rule 8 of the Code of Civil Procedure,
1908, may be availed of if all the members or a number of them have to be sued. A partnership firm though not a
legal entity can sue or be sued in the firm name under Order 30 of the Code of Civil Procedure. An association
which is registered as a society under the Societies Registration Act, 1860 can, as provided in section 6 of the said
Act, sue or be sued in the name of its President, Chairman or Principal Secretary,etc., as may be determined by its
rules or regulations or by a resolution of the Governing Body when there is no provision on that point in the rules or
regulations. 73
6. TRADE UNIONS
The English law in the context of trade unions gave recognition to a theory that there may exist a legal entity without
any corporate existence. In Taft Vale Ry. v. Amalgamated Society of Railway Servants , 74 it was held that a
registered trade union, though not a corporate body was a legal entity, and could be sued in tort for the wrongful
acts of its officers. Similarly, in Bonsor v. Musicians Union, 75 an action by a member against a trade union for
wrongful expulsion was upheld on the ground that the trade union was a legal entity distinct from its members. The
Indian Law on this point presents no such anomaly for section 13 of the Trade Unions Act, 1926,76 expressly
provides that every registered Trade Union shall be a body corporate with all attributes of a legal personality.
Section 18 of the Act, however, enacts that no suit shall lie against a registered Trade Union, its members or
officers in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the
Trade Union was a party on the ground only that such act induces some other person to break a contract of
employment, or that it is an interference with the trade, business or employment of some other person or with the
right of some other person to dispose of his capital or labour as he wills.
7. INSOLVENT
Liability for a tort committed by an insolvent is not a debt provable in insolvency and is not discharged by
insolvency. But an insolvent may be sued for a tort committed by him either before or during insolvency, and if a
decree is obtained against him, the amount awarded is a debt provable in insolvency.
As regards torts committed against an insolvent, a distinction is to be drawn between torts to the person and torts to
property. A right of action in respect of a tort resulting in injury exclusively to the insolvent's property passes to the
Official Assignee or Receiver for the benefit of his creditors. But a right of action in respect of a tort exclusively to
the person, reputation or feelings of the insolvent, such as an assault or defamation, 77 seduction of a servant, 78
remains with the insolvent, and the Official Assignee or Receiver cannot intercept the proceeds so far as they are
required for the maintenance of the insolvent or his family. But where a tort causes injury both to the person and
property of the insolvent, the right of action will be split and will pass, so far as it relates to the property, to the
Official Assignee or Receiver, and will remain in the insolvent so far as it relates to his person. 79 In such a case
either the cause of action is divided between him and the trustee or they may join together in one action in which
case damages will be assessed under two separate heads. 80
8. THE STATE AND ITS OFFICERS

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8(A) English Law
It is an ancient and fundamental principle of the English Constitution that the King can do no wrong. This maxim
means, first, whatever is exceptionable in the conduct of public affairs is not to be imputed to the King, nor is he
answerable for it personally to his people: for this doctrine would totally destroy the constitutional independence of
the Crown; and, secondly, that the prerogative of the Crown extends not to do any injury. 81 “He (The King) is not
liable to be sued civilly or criminally for a supposed wrong. That which the sovereign does personally, the law
presumes will not be wrong; that which the sovereign does by command to his servants, cannot be a wrong in the
sovereign because, if the command is unlawful, it is in law no command, and the servant is responsible for the
unlawful act, the same as if there had been no command”. 82 So the Crown was not liable in tort at common law
for wrongs committed by its servants in the course of employment not even for wrongs expressly authorised by it.
83 Even the heads of the department or superior officers could not be sued for torts committed by their
subordinates unless expressly authorised by them; 84 only the actual wrongdoer could be sued in his personal
capacity. In practice, the action against the officer concerned was defended by the Treasury Solicitor and the
judgment was satisfied by the Treasury as a matter of grace. Difficulty was, however, felt when the wrongdoer was
not identifiable. 85 The increased activities of the Crown have now made it the largest employer of men and the
largest occupier of property. The above system was, therefore, proving wholly inadequate and the law needed a
change which was brought about by the Crown Proceedings Act, 1947. 86 Nothing in the Act authorises
proceedings in tort against the Crown in its private capacity (s. 40), or affects powers or authorities exercisable by
virtue of the prerogative of the Crown or conferred upon the Crown by statute (s.11(1)). Subject to this, the Act
provides that the Crown shall be subject to all those liabilities in tort to which, if it were a person of full age and
capacity, it would be subject (1) in respect of torts committed by its servants or agents, provided that the act or
omission of the servant or agent would, apart from the Act, have given rise to a cause of action in tort against that
servant or agent or against his estate; (2) in respect of any breach of those duties which a person owes to his
servants or agents at common law by reason of being their employer; (3) in respect of any breach of the duties
attaching at common law to the ownership, occupation, possession or control of property. Liability in tort also
extends to breach by the Crown of a statutory duty. It is also no defence for the Crown that the tort was committed
by its servants in the course of performing or purporting to perform functions entrusted to them by any rule of the
common law or by statute. The law as to indemnity and contribution as between joint tort-feasors shall be
enforceable by or against the Crown and the Law Reform (Contributory Negligence) Act, 1945, 87 binds the
Crown. Although the Crown Proceedings Act preserves the immunity of the Sovereign in person and contains
savings in respect of the Crown's prerogative and statutory powers, the effect of the Act in other respects, speaking
generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of
tortious liability. The Crown is now vicariously liable for torts committed by its servants in the course of their
employment if committed in circumstances which would render a private employer liable. So in Home Office v.
Dorset Yacht Co ., 88 the Crown was held liable for the damage caused by runaway borstal trainees who escaped
because of the negligence of the borstal officers in the exercise of their statutory function to control the trainees.
The European Court of Justice holds the member states liable for damages for breach of community law on the
basis of a principle not expressly mentioned but inherent in the system of the Treaty. A state can be held liable
irrespective of which organ of the state was responsible for the breach, the legislature, the executive or the
judiciary. The right to damages is dependent on three conditions. First, the rule of law which was infringed must
have intended to confer rights on individuals. Secondly, the breach of this rule of law must have been sufficiently
serious. Finally there must have been a direct causal link between breach of the obligation imposed on the state
and the damage which was sustained by the injured parties. 89
The English law is likely to develop further because of enforcement of the Human Rights Act, 1998 from 2nd
October, 2000. The Act gives effect to the European Convention on Human Rights. The Act provides that it is
unlawful for any public authority 90 to act in a way which is incompatible with a convention right and a person who
considers that his rights have been violated can sue the public authority for damages. Many of the convention rights
are also recognized by the common law which also provides remedies for their infringement. A claim under the Act
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will directly arise when the right infringed is recognised by the Act as a convention right but is not recognised by the
common law.
8(B) Indian Law (i) Historical Background
The maxim that the King can do no wrong and the resulting rule of the common law that the Crown was not
answerable for the torts committed by its servants have never been applied in India. The Crown assumed the
sovereignty of British India, which was till then administered by the East India Company, by the Government of
India Act, 1858. Section 65 of this Act, which is the parent source of the law relating to the liability of the
Government, provided that : “All persons and bodies politic shall and may have and take the same suits, remedies
and proceedings, legal and equitable against the Secretary of State for India as they could have done against the
said Company.” This provision was continued by the succeeding Government of India Acts, 91 and is also
continued by 300[(]1[)] of the Constitution of India which reads : “The Government of India may sue or be sued by
the name of the Union of India and the Government of a State may sue or be sued by the name of the State and
may, subject to any provisions which may be made by an Act of Parliament or of the legislature of such State
enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the
like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have
sued or been sued if this Constitution had not been enacted.” It may be mentioned that the Heads of State,i.e., the
President of India, and the Governors of States have personal immunity and they are not answerable to any court,
as provided in Article 361, for the exercise and performance of the powers and duties of their offices.
The Union of India and the States of the Union are juristic persons and they can sue and be sued but the extent of
their liability by the chain of Constitution Acts beginning with the Act of 1858 and ending with the Constitution is the
same as was of the Secretary of State for India in Council under section 65 of the Act of 1858 and the words in that
section “all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, and
legal equitable as they could have done against the said Company” by incorporation apply to the Union and the
States as they applied to the East India Company. In other words, the extent of liability of the Union and the States
under Art. 300(1) of the Constitution is the same as was the liability of the East India Company. But this statement
is subject to the new liabilities imposed by the Constitution92 or laws made under it.
The oft quoted authority on the construction of section 65 of the 1858 Act is the decision of the Supreme Court of
Calcutta rendered in 1861 in the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for
India . 93 In that case a servant of the plaintiff company was proceeding on a highway in Calcutta driving a carriage
drawn by a pair of horses. Due to the negligence of the servants of the Government employed in the Government
Dockyard at Kidderpore in carrying a piece of iron funnel needed for repair of a steamer, an accident happened in
which one of the horses driving the plaintiff's carriage was injured. The plaintiff company sued the Secretary of
State for India for damages for the damage caused due to the negligence of the servants of the Government. In
holding that for such an accident caused by the negligence of its servants in doing acts not referable to Sovereign
powers the East India Company would have been liable and so the Secretary of State for India was liable,
PEACOCK, C.J., who delivered the judgment of the court, drew a distinction between the acts done by the public
servants in the delegated exercise of sovereign powers and acts done by them in the conduct of other activities and
made the following pertinent observation “In determining the question whether the East India Company would,
under the circumstances, have been liable to an action under the general principles applicable to Sovereigns and
States, and the reasoning deduced from the maxim of the English law that the King can do no wrong would have no
force. The East India Company were not Sovereigns and, therefore, could not claim all the exemptions of a
Sovereign; and they were not the public servants of Government and, therefore, did not fall under the principle of
the cases with regard to the liabilities of such persons, but they were a Company to whom sovereign powers were
delegated and who traded on their own account and for their own benefit, and were engaged in transactions partly
for the purposes of Government, and partly on their own account, which without any delegation of Sovereign rights
might be carried on by private individuals. There is a great and clear distinction between acts done in the exercise
of what are usually termed sovereign powers, and acts done in the conduct of undertakings which might be carried
on by private individuals without having such powers delegated to them.” 1
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The tort in the case of Peninsular and Oriental Steam Navigation Co ., 2 was committed by the servants of the
Government in the course of a trading activity and the case was not directly concerned with acts done in the
exercise of sovereign powers. The Madras 3 and Bombay 4 High Courts, therefore, did not accept the reservation
made by PEACOCK, C.J., that the Government was not liable if the tort was committed in the exercise of sovereign
powers and the view expressed by these High Courts was that the Government would also be liable for torts
committed in the exercise of sovereign powers except when the act complained of amounted to an act of State. 5
The Calcutta High Court, 6 however, followed the view taken by PEACOCK, C.J.
(ii) Sovereign Immunity
The point as to how far the State was liable in tort first directly arose before the Supreme Court in State of
Rajasthan v. Vidyawati . 7 In that case the claim for damages was made by dependants of a person who died in an
accident caused by the negligence of the driver of a jeep maintained by the Government for official use of the
Collector of Udaipur while it was being brought back from the workshop after repairs. The Rajasthan High Court
took the view that the State was liable for “the State is in no better position in so far as it supplies cars and keeps
drivers for its civil service”. The Supreme Court endorsed the view taken by the High Court; SINHA, C.J., in
delivering the judgment of the court quoted approvingly the judgment of PEACOCK, C.J., but he also “from the point
of view of first principles” made the following observations : “The immunity of the Crown in the United Kingdom was
based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore,
of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the
East India Company, the Sovereign has been held liable to be sued in tort or in contract and the common law
immunity never operated in India. Now that we have, by our Constitution, established a Republican form of
Government, and one of the objectives is to establish a socialistic State with its varied industrial and other activities,
employing a large army of servants, there is no justification, in principle or in public interest, that the State should
not be held liable vicariously for the tortious act of its servant”. 8
The question of liability of the State again came up for decision before the Supreme Court in Kasturilal Ralia Ram
Jain v. State of U.P. 9 In this case a partner of Kasturilal Raliaram, a firm of jewellers of Amritsar, went to Meerut
for selling gold amd silver. He was taken into custody at Meerut by police constables on the suspicion of possessing
stolen property. He was kept in police lock-up and the gold and silver recovered from him on search were kept in
the custody of the police in the police Malkhana. He was next day released and sometime later silver seized was
returned. The gold could not be returned to him as the Headconstable-in-charge of the Malkhana misappropriated it
and fled to Pakistan. The suit was filed against the State of U.P. for return of the ornaments or in the alternative for
compensation. It was found that the police officers had failed to follow the U.P. Police Regulations in taking care of
the gold. The Supreme Court held the State not liable on the view that the tort was committed by the police officers
in the exercise of delegated sovereign powers. The Court speaking through GAJENDRAGADKAR, C.J., fully
approved the decision of PEACOCK, C.J., in the case of Peninsular and Oriental Steam Navigation Co., 10 stating
per incuriam that it “enumerated a principle which has been consistently followed in all subsequent decisions” 11
and observed : “It must be borne in mind that when the State pleads immunity against claims for damages resulting
from injury caused by negligent acts of its servant, the area of employment referable to sovereign powers must be
strictly determined. Before such a plea is upheld, the Court must always find that the impugned act was committed
in the course of an undertaking or employment which is referable to the exercise of delegated sovereign power”. 12
In upholding the defence of immunity pleaded by the State of U.P., GAJENDRAGADKAR, C.J., further said : “The
act of negligence was committed by police officers while dealing with the property of Ralia Ram which they had
seized in the exercise of their statutory powers. Now, the power to arrest a person, to search him, and to seize
property found with him, are powers conferred on the specified officers by statute and in the last analysis, they are
powers which can be properly characterised as sovereign powers, and so, there is no difficulty in holding that the
act which gave rise to the present claim for damages has been committed by the employees of the respondent
during the course of their employment; but the employment in question being of the category which can claim the
special characteristic of sovereign power, the claim cannot be sustained.” 13 It may also be mentioned that
Vidyawati's case 14 was distinguished as being confined to tortious liability not arising from the exercise of
sovereign power.
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The decision of the Supreme Court in Kasturilal's case 15 is not satisfactory and has been criticised by a leading
constitutional authority of the country. 16 It proceeds upon a wrong impression that the decision of PEACOCK,
C.J., 17 was uniformly followed by failing to take notice that it was dissented to by the Madras and Bombay High
Courts; 18 it fails to appreciate that when in modern times there is no logical or practical basis for the rule of State
immunity which has been abolished even in the country of its origin, 19 more reasonable view to take in the context
of our Constitution was that the State will always be liable for the torts committed by its servants in the course of
employment except when the act complained of amounted to an act of State; and it omits to consider that even if
the statutory power to arrest, search and seize the property recovered may be described to pertain to the sphere of
sovereign powers, the duty to take care for the protection of the property and the obligation to return the same to
the rightful claimant after the necessity to retain them ceases were more in the nature of the duties of a statutory or
a contractual bailee and did not fall within the sphere of sovereign powers. 20
Although the decision of the Supreme Court in Kasturilal's case is yet to be overruled, subsequent decisions of the
court have greatly undermined its authority and attenuated the sphere of sovereign immunity. As recently observed
by a three judge bench “much of its efficacy as a binding precedent has been eroded” 21
In State of Gujarat v. Memon Md. , 22 certain goods seized under the Sea Customs Act were not properly kept and
were disposed of by order of a Magistrate. On a suit for the value of the goods against the State, the Supreme
Court held that when the seizure was illegal there arose bailment and a statutory obligation to return the goods and
the suit was maintainable. Similarly in Smt. Basava Kom Dyamogonda Patil v. State of Mysore , 23 certain articles
seized by the police were produced before a Magistrate who directed the Sub-Inspector to keep them with him in
safe custody to get them verified and valued by a goldsmith. The articles were lost while they were kept in the
police guard-room. In a proceeding taken under section 517 of the Code of Criminal Procedure, 1898, the Supreme
Court held that when “there is no prima facie defence made out that the State or its officers had taken due care and
caution to protect the property,” 24 the court can order the State to pay the value of the property to the owner. The
court also observed: “As the seizure of property by the police amounts to a clear entrustment of the property to a
Government servant, the idea is that the property should be restored to the original owner after the necessity to
retain it ceases.” 25
(iii) Public Law Wrongs
The cases of Rudul Shah v. State of Bihar , 26 Sebastin M. Hongray v. Union of India , 27 Bhim Singh v. State of J.
and K . 28 and SAHELI a Woman's Resources Centre v. Commr. of Police, Delhi , 29 lead to the inference that
the defence of sovereign immunity is not available when the State or its officers acting in the course of employment
infringe a person's fundamental right of life and personal liberty as guaranteed by Article 21 of the Constitution. In
the case of Rudul Shah v. State of Bihar , 30 which arose on a petition under Article 32 of the Constitution
complaining prolonged detention of the petitioner even after his acquittal, the Supreme Court directed the State to
pay Rs. 30,000 as interim measure without precluding the petitioner from bringing a suit to recover further
damages. The court while overruling the objection that the petitioner should be left entirely to the remedy of a suit
and no damages or compensation should be allowed even as an interim measure observed : “The petitioner can be
relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that
a civil court may or may not have upheld his claim. But where the court has already found, as in the present case,
that the petitioner's prolonged detention in prison after his acquittal was wholly unjustified and illegal, there can be
no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would
have to be passed in that suit. 31 In the case of Sebastin M. Hongray , 32 where two persons were taken into
custody by Army authorities in Manipur but were not produced in obedience to a writ of habeas corpus and it was
held that those persons must have met an unnatural death while in Army custody, the Supreme Court directed the
Union of India to pay exemplary costs of rupees one lac each to the wives of those persons. Although the word
compensation is not used in the decision, it is obvious that the Court awarded compensation 33 to the dependants
against the Union of India for the action of the army authorities in murdering the two persons. Bhim Singh's case 34
was also a case under Article 32 of the Constitution. The petitioner who was an MLA was illegally arrested and
detained to prevent him from attending the assembly session and the Supreme Court directed the State of Jammu
and Kashmir to pay Rs. 50,000 as compensation to the petitioner. In the case of SAHELI 35 the Supreme Court in
a public interest writ petition allowed Rs. 75,000 as damages against the Delhi administration to the mother of a
Page 11 of 45
child of nine years who died due to beating and assault by a Delhi police officer. The court made a reference to
State of Rajasthan v. Mst. Vidyawati 36 and Peoples Union of Democratic Rights v. Police Commissioner, Delhi 37
and observed : “It is well settled now that the State is responsible for the tortious acts of its employee”. 38 The
cases of Rudul Shah and Bhimsingh were approved by a Constitution Bench of the Supreme Court in M.C. Mehta
v. Union of India , 39 which laid down that compensation for violation of fundamental rights can be allowed in
exceptional cases under the writ jurisdiction but normally the party aggrieved should seek his remedy by a suit in
the civil court.
The Supreme Court cases discussed above 40 did not refer to the doctrine of sovereign immunity or the case of
Kasturilal on which the following submission was made in the 22nd edition of this book at p. 46 : ‘”It is submitted
that that case, even if not overruled, can be distinguished on the ground that it did not consider the nature of liability
of the State when there is deprivation of a fundamental right. The liability of the State to pay compensation for
deprivation of the fundamental right of life and personal liberty (or any other fundamental right for that matter) is a
new liability in public law created by the Constitution and not vicarious liability or a liability in tort. For this reason,
this new liability is not hedged in by the limitations, including the doctrine of sovereign immunity, which ordinarily
apply to State's liability in tort. This view is strongly supported by the decision of the Privy Council in Maharaj v.
Attorney-General of Trinidad and Tobago (No. 2). 41 Section 1 of the Constitution of Trinidad and Tobago
recognises amongst other “the right of the individual of life, liberty, security of person and the right not to be
deprived thereof except by due process of law”. Any person alleging contravention of this right and other human
rights and freedoms recognised under sections 1 and 2 can apply under section 6 for redress to the High Court
which is empowered to issue appropriate orders, writs and directions for enforcement or securing the protection of
provisions of the aforesaid sections. The appellant who was a barrister was committed to seven days imprisonment
by a judge of the High Court which committal was set aside by the Privy Council 42 in appeal on the ground that
particulars of the specific nature of the contempt were not told to the appellant and the judge had thereby failed to
observe a fundamental rule of natural justice. The appellant had in the meantime applied for redress under section
6 on the ground that he was deprived of his liberty without due process of law. This application was dismissed by
the High Court, but appellant again came up in appeal, to the Privy Council. The Privy Council held 43 that section
6 of the Constitution impliedly allowed the High Court to award compensation as that may be the only practicable
form of redress in some cases. The Privy Council also held that as the appellant's committal was in violation of the
rules of natural justice, he was deprived of his liberty without due process of law in contravention of section 1 of the
Constitution and was entitled to claim compensation from the State under section 6 thereof. In meeting the
argument that a judge cannot be made personally liable for anything done or purporting to be done in the exercise
or purported exercise of his judicial functions, LORD DIPLOCK speaking for the majority observed : “The claim for
redress under section 6(1) for what has been done by a judge is a claim against the State for what has been done
in the exercise of judicial power of the State. This is not vicarious liability : it is liability of the State itself. It is not a
liability in tort at all : it is a liability in public law of the State, not of the judge, which has been created by sections
6(1) and (2) of the Constitution”. 44 As to the measure of compensation LORD DIPLOCK said : “The claim is not a
claim in private law for damages for the tort of false imprisonment under which the damages recoverable are at
large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of
liberty alone. Such compensation would include any loss of earnings consequent on the imprisonment and
recompense for the inconvenience and distress suffered by the appellant during his incarceration.” 45 ’’’
The above submission was accepted by the Supreme Court in Nilabati Behra v. State of Orissa . 46 In that case
the petitioner's son died as a result of injuries inflicted on him while he was in police custody. A letter sent by the
petitioner to the Supreme Court was treated as a petition under arrticle 32 of the Constitution. The Supreme Court
directed the State of Orissa to pay R s. 1,50,000 as compensation to the petitioner. In directing so VERMA, J,
observed: “Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article
226 of the Constitution is a remedy available in public law based on strict liability for contravention of fundamental
rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in
private law in an action based on tort. This is a distinction between the two remedies.” 47 VERMA J. further
explained: “It is sufficient to say that the decision of this Court in Kasturilal upholding the State's plea of sovereign
immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State's
liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the
Page 12 of 45
constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution
which enables award of compensation for contravention of fundamental rights when the only practicable mode of
enforcement of the fundamental rights can be the award of compensation.” 48 Concurring with VERMA J, DR.
ANAND J. in the same case observed : “The purpose of the public law is not only to civilize public power but also to
assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights—
This court and the High Court being the protectors of the civil liberties of the citizen, have not only the power and
jurisdiciton but also an obligation to grant relief in exercise of its jurisdiction under articles 32 and 226 of the
Constitution to the victim or the heir of the victim whose fundamental rights under Article 32 of the Constitution of
India are established to have been flagrantly infringed by calling upon the state to repair the damage done by its
officers to the fundamental rights of the citizens, notwithstanding the right of the citizen to the remedy by way of a
suit or criminal proceedings. The state of course has the right to be indemnified by and take such action as may be
available to it against the wrongdoer in accordance with law through appropriate proceedings. Of course relief in
exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an
infringement of fundamental rights of the citizen and no other form of appropriate remedy in the facts and
circumstances of the case is possible.”49 Dr. ANAND J. also observed : “There is a great responsibility on the
police or prison authorities to ensure that the citizen in its custody is not deprived of his rights to life.” 50
Nilbati Behra's case was followed in D.K. Basu v. State of West Bengal, 51 which lays down general principles
relating to custodial death cases. The judgment in this case was delivered by DR. ANAND J., who reviewed the
earlier authorities. It was reiterated that the relief of compensation against the state based “on the principles of strict
liability” under the public law is one to which the defence of sovereign immunity does not apply and that this relief is
in addition to the traditional remedies and the compensation awarded in a given case is adjusted against any
amount awarded to the claimant by way of damages in civil suit. It was also held that in the assessment of
compensation under Article 32 or 226 “the emphasis has to be on the compensatory and not on the punitive
element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender as
awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal court in
which the offender is prosecuted, which the state in law is duty bound to do.” 52 It may be here mentioned that DR.
ANAND J., in Nilbati Behra had observed that “the compensation against the state under Article 32 or 226 was in
the nature of “exemplary damages” 53 As exemplary damages are not compensatory but punitive, 54 there is
some contradiction on this point between Nilbati Behra and D.K. Basu where it was said that in assessing
compensation stress has to be on compensatory element and not on the punitive element.
In State of Andhra Pradesh v. Challa Ramakrishna Reddy 55 a prisoner in jail as under trial died as a bomb was
thrown by some miscreants in the cell where he was lodged. In a suit by the dependants of the deceased against
the state it was found that the jail authorities were negligent in properly guarding the jail inspite of warning that
some miscreants were likely to make an attempt on the life of the prisoner. On these facts the doctrine of sovereign
immunity was held to have no application as this was a case of a violation of the fundamental rights under Article 21
and it made no difference that the claim was laid through a suit and not under Article 32 or 226.
Nilabati Behra's case was also followed in Consumer Education and Research Centre v. Union of India . 56 In this
case which was a petition under Article 32, it was held that “right to health, medical aid to protect the health and
vigour of a worker while in service or post retirement is a fundamental right under Article 21 “ 57 and directions
were issued for examination of workers engaged in asbestos industry and for payment of compensation of Rs. one
lakh to each worker found suffering from occupational health hazards. After referring to the case of Nilabati Behra ,
K. RAMASWAMY J. observed: “It is, therefore, settled law that in public law claim for compensation is a remedy
available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence
of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no
question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress
available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the
purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued
under the statute or for the enforcement of any right or duty under the Constitution or the law.” 58
In Nalinikant Sinha v. State of Bihar , 59 Sinha a senior employee was not considered for promotion and a junior
was promoted. The Government later realized the mistake and Sinha was given notional promotion from the date
Page 13 of 45
the junior was promoted but was denied difference of salary on the ground that the rules did not permit the award of
difference as Sinha had not worked on the post of promotion before his actual promotion. In a claim by Sinha for
difference in salary and compensation for mental anguish and suffering the Supreme Court negatived the claim for
mental anguish and suffering holding that it was not a legal claim allowable in law, 60 but allowed the claim for
difference in salary with interest “having regard to the facts and justice of the case and without this decision
constituting a precedent”. 61
In two public interest petitions under Article 32 of the Constitution two excentral ministers who had arbitrarily allotted
petrol pumps and shops/stalls from discretionary quota by mala fide exercise of their power were ordered to pay
damages to the Government to the tune of 50 lacs in one case and 60 lacs in the other case. 62 The two ministers
were found guilty of the tort of misfeasance in public office and liable to pay exemplary damages. The Court relied
upon Nilbati Behra's case 63 for the proposition that damages can be awarded under Article 32 of the Constitution.
With reference to these cases the following submission was made in the 23rd edition of this book 64 : “The
fundamental rights in Part III of the Constitution are against the State as defined in Article 12 and damages under
Article 32 in enforcing fundamental rights can be awarded against the State. But the State has no fundamental right
which can be enforced by award of damages to the State under Article 32. Further, Article 32 cannot be used for
enforcing a liability in tort which is entirely different from a liability arising from violation of a fundamental right and
this aspect was highlighted in Nilbati Behra's case. It is submitted that in these two cases 65 Nilbati Behra's case
was wrongly applied and damages in these cases could not have been awarded in Article 32 petitions.”
A review petition decided by a bench of three judges in one of the two afore-mentioned cases, which related to
allotment of petrol pumps, justifies the above submission to a large extent. The court agreed that the orders of
allotment were wholly arbitrary but it set aside the award of damages holding that the tort of misfeasance in public
office was not established and that the State could not be awarded compensation in a petition under Article 32 for
violation of fundamental right of a citizen by its officers. The question relating to misfeasance of public office arising
in this case has been discussed elsewhere. 66 On the question of State's right to be compensated under Article 32
the court said : “The State itself cannot claim the right of being compensated in damages against its officers on the
ground that they had contravened or violated the fundamental right of a citizen the whole thing has to be examined
in the context of Article 32 of the Constitution under which relief to a person or citizen can be granted only against
the Union of India or the State or its instrumentalities but the State cannot legally claim that since one of its
ministers or officers had violated the fundamental right of a citizen or had acted arbitrarily, it should be
compensated by awarding exemplary damages against that officer or minister.” 67 The court fully accepted the
judgment and the principles in Nilbati Behra . Indeed the court ater quoting the passage extracted above 68 from
the judgment of DR. ANAND J. in that case observed that it was “a classic exposition of the realm of ‘public law’”.
69 The case of Nilbati Behra and the Privy Council case of Maharaj v. Attorney General, which it approvingly
followed clearly lay down that the violation of a fundamental right gives rise to a strict liability of the State in public
law which is not vicarious liability in tort. Damages under Article 32 or 226 for violation of a fundamental right are
allowed against the State and not against the officer whose action resulted in violation of the citizen's fundamental
right, though the State can in suitable cases indemnify itself by recovering the loss from the delinquent officer by
taking appropriate proceedings against him. The court was, therefore, right in observing in the judgment in
disposing of the review petition that award of damages to the Government in a petition under Article 32 will not be
permissible also for the reason that it would amount to directing the Government to pay damages to itself. 70
Whether it be a case of custodial death or wrongful detention or medical negligence the foundation of a petition
under Article 32 is violation of the fundamental right of Article 21 by the State and not the tort committed by its
officers. The court also held that exemplary damages cannot be allowed in all cases. 71
The review petition in the other case also came up later before another three judge bench of the Supreme Court.
They quashed the award of damages on the ground that the minister was old and ailing and it would be gross
hardship to continue that part of the order. 72 They, however, doubted the correctness of the decision of the three
judge bench in the earlier review case and observed that its correctness can be appropriately considered by a
constitution bench in some other case. The legal position thus is that the decision of the three judge bench in the
case of common cause 73 still remains the law declared under Article 141.
Page 14 of 45
The distinction between tort by the officers for which the State may be vicariously liable and the primary and strict
liability of the State for the public law wrong of violation of a fundamental right has sometimes not been maintained
and cases of public law wrongs redressed under the public law remedies by applications under Article 32 or 226
have at times been, it is submitted in accurately, referred to as cases of tort. In Chairman Railway Board v. Mrs.
Chandrima Das 74 where a Bangladeshi woman was gang raped by employees of the Indian Railway, the court
rightly held that it was a case of violation of the fundamental right of the Bangladeshi woman under Article 21, which
applies also to non-citizens and the High Court was right in allowing compensation of R s. 10 lakhs against the
Railway in a public interest petition under Article 226 as the “state was under a constitutional liability to pay
compensation to her.” 75 But in the course of discussion some earlier cases relating to violation of fundamental
right awarding compensation under Article 32 or 226 have been described as cases “in the realm of tort” 76 and
there is also some reference to vicarious liability of the State. 77 As submitted earlier, the liability enforced under
Article 32 or 226 for violation of a fundamental right is the primary and strict liability of the State and not its vicarious
liability for the tort committed by its officers. 78
In Jay Laxmi Salt Works (P.) Ltd. v. The State of Gujarat , 79 damage to the plaintiff was caused by over flow of
water because of a reclamation bundh erected by the State for reclamation of vast area of land from saltish water of
sea. It was found that the act of planning and construction of the bundh was done in a negligent manner which
resulted in damage to the plaintiff. But the suit was held to be barred by the High Court under Article 36 of the
Limitation Act, 1908. In appeal before the Supreme Court it was held that this was not purely a case of negligence
which would be covered by the terms malfeasance, misfeasance and non-feasance used in Article 36 but also
failure to discharge a public law duty and will be governed by Article 120 of the Limitation Act. The Court did not
refer to any provision of the Constitution or elaborate the concept of public law duty. In a welfare state all acts of the
state are directed in public interest for welfare of the people. But can it be said that mistake or negligence in
performance of every act by the Government would be violation of a public law duty liable to be redressed in an
action for damages.
Although the cases of Nilbati Behra and D.K. Basu discussed above at pages 51 to 53, which laid the basis for the
concept of public law wrong, related to violation of Article 21, the observations in them are general that violation of
fundamental rights will be public law wrong redressable under Article 226 and 32. A three judge bench of the
Supreme Court, however, in Hindustan Papers Corporation v. Ananta Bhattacharjee 80 has held that “the public
law remedy for the purpose of grant of compensation can be resorted to only when the fundamental right of a
citizen under Article 21 is violated and not otherwise”. The court further said that “it is not every violation of the
provisions of the constitution or a statute which would enable the court to direct grant of compensation.”
Having regard to the very wide area which is covered by Article 21 ; which is made wider and wider as a result of its
extension by ‘judicial extrapolation’, 81 coupled with the fact that the Constitution does not expressly provide for
grant of damages either under Article 32 or 226 it cannot be held that any breach of any right under Article 21 will
sound in damages in public law. The law on this point is in a developing stage. If in a new situation not covered by
an authority of the Supreme Court a question of this nature arises it may be seen as to how far the new situation
resembles to those situations in which damages have been allowed in public law and in tort law and whether it
would be just and reasonable to award damages in the new situation. Instead of laying down a broad general
principle to cover all situations where damages can be allowed, it may be better to develop the law incrementally by
taking analogy from the decided cases both under public law and private law of torts. This is the method which is
now adopted in deciding cases of negligence in tort law which are not covered by authority. Further, extension of
fundamental rights under Articles 21 and 32 against private persons, apart from being of doubtful validity, 82 may
open a Pandora's box and flood the Supreme Court with petitions seeking damages. Rights to life and personal
liberty against private persons are already covered by common law and statute law and private law remedies are
available for violations of these rights. The courts must also be astute to guard against the trend that the blame for
every misfortune must be laid at the doorstep of the State under Article 21 lest every wrong or offence against the
person or property becomes redressable as a public law wrong against the State on the ground that it was not
sufficiently vigilant in protecting the person or property of the victim. It may be worthwhile that the Supreme Court
lays down the parameters as to when the State can be made liable, if at all, for public law wrong as distinguished
from the tort of negligence, in cases where the wrong is done not by the State or its officers but by a third person
who was not acting as agent of or in collusion with the State or its officers 83 . It is submitted that a distinction may
Page 15 of 45
also be drawn between strict liability of the state to pay damages for violation of fundamental right under Article 21
and its duty as a welfare state to provide relief to its needy citizens. The Supreme Court has, it is submitted, rightly
deprecated the tendency to grant huge sums as damages under Article 226 in cases where the facts are disputed
and there has been no trial of the issues involved 84 or where there is a minor infraction of Public Duty. 85
The Madras High Court 86 in a public interest petition under Article 226 of the Constitution held that damages for
injury to property of citizens in riot, when there was virtual breakdown of law and order, can be claimed against the
State Government. The High Court in that case allowed Rs. 33.39 lakhs as compensation against the State to 39
Sikh families as it had failed to protect the properties of these families in the riots let loose in Coimbatore in the
wake of the former Prime Minister, Indira Gandhi's assassination on October 31, 1984. In the view of the High
Court, deprivation of property resulted in deprivation of means of livelihood violating Articles 21 and 300A of the
Constitution. A similar petition filed in the Delhi High Court 87 was also allowed on similar reasoning. A petition filed
in the Supreme Court for obtaining similar benefits to other Sikh riot victims in the entire country was remanded by
the Supreme Court to the High Courts of Delhi, 88 Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh,
Patna, Madhya Pradesh, Allahabad and Bombay for appropriate action without expressing any opinion on merits of
the petition. The Kerala High Court 89 allowed damages to a petitioner under Article 226 whose hotel was
ransacked by a mob on the ground that inaction by the police to render protection to the petitioner's hotel violated
his fundamental right under- Article 19(1) g of the Constitution. In all these cases the deprivation of life or property
was not directly by the State or its officers but by third parties whose acts were facilitated because of the negligence
or inaction of the officers of the State. As a criticism of these cases it may be said that when the third parties were
not acting as agents of or in collusion with the State or its officers, there was no deprivation by the State or its
officers of any fundamental right of life or right to property and the State could be made liable, if at all, only in private
law for the tort of negligence 90 unless it could be said that it was reasonably foreseeable in the circumstances that
a riot like situation may emerge and so the state was under a primary duty for making adequate arrangements of its
law enforcement machinery for protection of life and property of its citizens which it failed to perform. It was,
however, rightly held that Kasturilal's case has no application when there is infringement of Article 21 of the
Constitution.
Guidance in this respect can be taken from strasbourg jurisprudence as developed in interpreting right to life in
Article 2 of the European Convention which is briefly expressed: ‘Everyone's right to life shall be protected by law’.
The article as interpreted also involves a positive obligation of the State to take preventive operational measures “
when the authorities know or ought to have known at the time the existence of a real and immediate risk to the life
of an identified individual or individuals from the criminal acts of a third party “. It is sufficient for the party
complaining of the violation of this obligation “to show that the authorities did not do all that could be reasonably
expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. This
is a question to be answered in the light of all the circumstances of the case”. 91
Following the case of Rudul Shah the Himachal Pradesh High Court 92 allowed a petition against the State for
award of compensation under Article 226 of the Constitution by dependants of two persons who died during surgical
operation in a Government hospital because of negligence of the hospital staff in that they were administered
nitrous oxide in place of oxygen. As the hospital staff were employees of the State, the High Court, it is submitted
rightly treated it to be a case of deprivation of life violating the fundamental right under Article 21 of the Constitution
and not purely a case of negligence. The Orissa High Court in Dharnidhar Panda v. State of Orissa 1 held the state
vicariously liable in a writ petition when as a result of collapse of a portion of a school building two children died.
The responsibility for maintenance of school building lay on the Village Education Committee which acted as agent
of the State Government. In Y. Krishnappa v. The State, 2 a learned Single Judge of the Madras High Court
allowed Rs. 20,000 as compensation under Article 21 for delay in investigation without quashing the investigation
for mental agony and anguish of the accused. And in C. Chinnathambi v. State of Tamil Nadu, 3 another learned
judge of the Madras High Court allowed R s. 1,50,000/- under Article 226 of the Constitution to the dependants of
each of the two children who died as a result of collapse of a water tank in a government school. In this case also
Article 21 was applied.
(iv) Limitations of Sovereign Immunity

Page 16 of 45
The sovereign functions within which the immunity of the State survives in an ordinary tort action are also vague.
But there can be no doubt in respect of certain matters. Trading and commercial activities of the State, for example
running of railways, 4 are outside the scope of sovereign functions. This in fact was the decision in the Peninsular
and Oriental Steam Navigation Company's case, 5 which was approved in Kasturilal's case. 6 Again welfare
activities like famine relief work 7 or routine Governmental activity like maintenance of vehicles for use of officials, 8
or any service or facility to the consumer covered by the Consumer Protection Act 19869 or running of a hospital
10 do not fall within the area of immunity which is limited to the traditional sovereign functions. In Shyamsunder v.
State of Rajasthan, 11 a truck belonging to the Public Works Department was engaged in famine relief work when
an accident happended because of the negligence of the driver. In holding that the State was liable the Suprme
Court observed : “It is not possible to say that famine relief work is a sovereign function of the State as it has been
traditionally under stood.” The question as to what are traditional sovereign functions of the State was considered
by the Supreme Court in another context in State of Bombay v. Hospital Mazdoor Sabha 12 and Nagpur
Corporation v. Its Employees , 13 and in both these cases the court referred with approval to Lord Watson's
observation on this point in Coomber v. Justice of Berks . 14 These cases show that traditional sovereign functions
are the making of laws, the administration of justice, the maintenance of order, the repression of crime, carrying on
of war, the making of treaties of peace and other consequential functions. 15 Whether this list be wide or narrow it
is at least clear that the socioeconomic and welfare activities undertaken by a modern State are not covered by the
traditional sovereign functions. 16 Further, although carrying on of war is a traditional sovereign function it will not
be correct to say that in all cases when a tort is committed by a member of the defence services in the course of
employment the State would succeed in pleading its immunity. This follows from the ruling of the Supreme Court in
Pushpa Thakur v. Union of India . 17 In that case the facts as found by the High Court 18 were that on 28th
August 1972, a military truck coming from the side of Delhi, due to negligence of the driver, went on the wrong side
of the road and hit a culvert. Four persons including the appellant who were sitting on the culvert sustained severe
injuries. The truck in question was part of the First Armed Division. This Division had moved to Ferozepur during the
1971 Indo-Pak War. When the war was over, this Division was ordered to move back to its permanent location at
Jhansi and it was during this movement that the truck met with an accident. At that time, the truck was carrying
rations and also some sepoys. On these facts the High Court held 19 that the accident occurred during the
exercise of sovereign functions of the State and consequently the Union of India could not be held liable. The
Supreme Court, overruling the High Court, in a very brief order said: “We are of the view that on the facts and
circumstances of the case the principle of sovereign immunity of the State for the acts of its servants has no
application and the High Court was in error in rejecting the claim of the appellant for compensation on that ground.”
20 It will be seen that the truck involved in the accident was engaged in carrying ration and sepoys within the
country during peace time in the course of movement of troops after the hostilities were over and this is a routine
duty not directly connected with carrying on of war, the traditional sovereign function. It was probably for this reason
that the Supreme Court negatived the plea of State immunity. The decision of the Supreme Court is in line with the
view taken by the High Court of Australia that there are no sufficient policy reasons to deny the general applicability
of the law of negligence to routine military duties in time of peace. 21 On the same reasoning although
maintenance of order and repression of crime (which will include power to arrest, search and seize as held in
Kasturilal's case ) 22 are traditional sovereign functions, torts committed by security personnel in the course of
routine duties will not qualify for giving protection to the State on the ground of State immunity. 23 But when the act
complained of is directly connected with the maintenance of order, the State may succeed in claiming immunity. For
example, where the police while regulating a procession made lathi charge and caused damage to the property of
the plaintiff, it was held that the State was not liable. 24 Similarly, when some police personnel assaulted members
of a mob for dispersing it when there was an apprehension of an attack on the office of the S.D.O. by the mob, the
State was held to be not liable. 25 However, in State of Madhya Pradesh v. Shantibai , two women who were
standing on the roof of their house were injured when police fired in the air to control a mob indulging in violence
after lathi charge and teargas had failed to be effective, the High Court allowed compensation and negatived the
defence of sovereign immunity. The women were innocent victims and they were hit by the bullets fired by the
police though “unwittingly”. 26 But even in cases where use of police lathicharge or firing is justified the State,
generally, does not intend to deny compensation to the victims or to the dependents in case of death. It is on this
basis that the Supreme Court allowed payment of Rs. 20,000 in case of death and Rs. 5,000 for personal injury. 27
Page 17 of 45
It was stated in the Peninsular and Oriental Steam Navigation Company's case that sovereign powers are those
powers “which cannot be lawfully exercised except by a sovereign or by a private individual delegated by a
sovereign to exercise them.” 28 This test is applied in some cases for deciding the question whether the tort was
committed in the protected field of sovereign immunity, but the test is not satisfactory and cannot, at any rate, be
applied to all cases. In India no private individual can carry on undertakings like the Railways, Post and Telegraph,
Radio and Television but it does not follow that these undertakings are carried on by the Government in the
exercise of traditional sovereign powers and the State shall not be liable for torts committed by servants of these
undertakings in the course of employment. These undertakings are in the nature of commercial and public utility
undertakings 29 and as they do not fall within the traditional sovereign functions they are outside the protected
area. Further, no private individual has the power to raise and maintain an army or a police force, but as already
seen, 30 the law is not that all torts committed by an Army Officer or a Police Officer in the course of employment
fall within the area of State immunity. There has to be a close nexus between the act complained of and one of the
traditional sovereign functions of the State such as carrying on of war, maintenance of order or repression of crime
before it can be said that the State will not be liable for torts committed in the course of employment by a member of
the Defence services or police force. 31
It must also be noticed that the State cannot succeed in pleading its immunity by merely showing that the tort was
committed by its servants in the course of discharge of statutory functions. “The statutory functions must be
referable to the traditional concept of Government activity in which the exercise of the sovereign power was
involved”. 32 to enable the State to claim immunity. This was clearly laid down by the Supreme Court in Kasturilal's
case. 33 This legal position has now been strongly affirmed by the Supreme Court in N. Nagendra Rao & Co. v.
The State of Andhra Pradesh . 34 In this case the appellent carried a business in fertilisers and foodgrains. Huge
stock of fertilisers and foodgrains was seized from the appellant's premises. In proceedings taken under section 6A
of the Essential Commodities Act, 1955, no serious violation of any Control order was found and only nominal
portion of the stock seized was confiscated and the rest was ordered to be released. The appellant, when he went
to take the delivery found that the stock had been spoilt both in quantity and quality. The appellant, therefore,
instead of taking delivery of the stock sued for compensation against the State. The Trial Court found negligence on
the part of the officers and decreed the suit in part. The High Court did not interfere with the finding of negligence
but dismissed the suit relying upon Kasturilal . In the Supreme Court the appeal was heard by two judges who could
not overrule Kasturilal (which is a decision of a Constitutional Bench) but they pointed out in an elaborate
discussion that it was not correctly decided and that the doctrine of sovereign immunity has no relevance in the
present day context. Distinguishing Kasturilal the Court, overruling the High Court, observed that maintenance of
law and order may be an inalienable sovereign function of the State in the traditional sense but power of regulating
and controlling essential commodities as conferred by the Essential Commodities Act and the orders made
thereunder did not pertain to that area and the State cannot claim immunity if its officers are negligent in exercise of
those powers. 35
Even in those cases where the State is protected from vicarious liability on the doctrine of sovereign immunity, the
public servant committing the tort is not protected. 36 It is also no defence for the public servant to say that the
wrong was committed in the course of discharging some statutory function or carrying out the orders of superiors.
37 Superior Officers are not liable on the basis of vicarious responsibility for there is no relationship of master and
servant between them and their subordinate; but a superior officer is liable directly if the wrong committed by the
subordinate is expressly authorised by him. 38 Further, although no action lies for doing that which is authorised by
the legislature, if it be done without negligence, but an action lies for doing that which the legislature has authorised
if it be done negligently. 39 In cases where a statutory discretion is conferred, the person entrusted with the
discretion is not liable if the discretion is exercised with due care and there is merely an error of judgment; but there
would be liability if he “either unreasonably failed to carry out his duty to consider the matter or reached a
conclusion so unreasonable as again to show failure to do his duty.” 40
9. FOREIGN SOVEREIGNS
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English courts have no jurisdiction over an independent foreign sovereign personally and the properties of a foreign
sovereign State unless they submit to the jurisdiction of the Court. 41 For this purpose all sovereigns are equal.
The independent sovereign of the smallest State stands on the same footing as the monarch of the greatest. No
Court can entertain an action against a foreign sovereign for anything done, or omitted to be done, by him in his
public capacity as representative of the nation of which he is the head. 42 Mere residence in a foreign territory
does not lead to a waiver of immunity or submission to local Courts. 43 Even if such a sovereign is a British
subject, and has exercised his rights as such subject, he cannot be made to account for acts of State done by him
in his own territory, in virtue of his authority as a sovereign. 44 As a consequence of the absolute independence of
every sovereign authority and of the international comity which induces every sovereign State to respect the
independence of every other sovereign State, each and every one declines to exercise by means of its Courts, any
of its territorial jurisdiction over the person of any sovereign or ambassador of any other State, or over the public
property of any State which is destined to its public use, or over the property of any ambassador, though such
sovereign, ambassador, or property, be within its territory, and therefore, but for the common agreement, subject to
its jurisdiction. 45 This sovereign immunity may not be available upon termination of sovereign status, e.g.,
abdication. 46 Where the de jure sovereign of a foreign country (Emperor of Abyssinia) brought an action to
recover a sum of money from a company and the company proved that a claim in respect of the money had been
made by another foreign Sovereign State (King of Italy), it was held that the Court had no jurisdiction to decide the
rights of the plaintiff, having regard to the claim by the other foreign State. 47
Unlike great Britain, most countries did not accept the doctrine of absolute immunity and they tended to distinguish
between acts jure imperii and acts jure gestionis . 48 The absolute immunity doctrine was producing great injustice
in the changed conditions when sovereign States are more and more indulging in commercial and trading activities.
The English courts, therefore, felt the necessity of taking more restricted view of sovereign immunity. The Privy
Council in Philippine Admiral (owners) v. Wallen Shipping (Hongkong) Ltd. , 49 abandoned the absolute theory and
applied the restrictive theory in respect of actions in rem observing that the trend of opinion in the world since the
war has been increasingly against the application of the doctrine of sovereign immunity to ordinary trading
transactions. The Court of Appeal 50 under the leadership of LORD DENING applied the restrictive theory also to
actions in personam holding that there is no ground for granting immunity if the dispute concerns commercial
transactions of a foreign State. Finally the House of Lords in The Congreso Del Partido 51 approved the restrictive
theory requiring the court to analyse the nature of the obligation and breach in question to decide whether it
pertained to private law or was of “Governmental” character. Parliament has also intervened by enacting the State
Immunity Act, 1978 which applies to causes of action arising after November 21, 1978. The immunity under the Act
covers proceedings which relate to anything done in the exercise of “sovereign authority”. Acts done under statutory
authority are thus not protected. 52 Speaking generally trading transactions are not protected under the Act but
what is more important for our purposes is that immunity does not apply to: (a) an action or omission in U.K.
causing death or personal injury; and (b) obligations arising out of the ownership, possession or use of property in
U.K. But the Act does not apply to ‘proceedings relating to anything done by or in relation to the armed forces of a
state while present in the United Kingdom’. The immunity relating to armed forces covered by this exception is
decided in accordance with the common law relating to State immunity. 53 A member of the US Air Force
sustained injury through treatment by US medical personnel at a US base hospital in England and he brought a suit
for damages against the United States’ government in England. The suit was dismissed on the ground of state
immunity that the activities of the United States which gave rise to the suit fell within the area of Jure imperii . 54
Where the immunity applies, it covers an official of the State in respect of acts performed by him in an official
capacity. 55 The state immunity is unaffected by the European convention for the Protection of Human Rights and
Fundamental Freedoms which is enforced in the United Kingdom by the Human Rights Act, 1998 from 2nd October,
2000. 56 But the Court of Appeal in a recent unanimous decision held that in a case where a systematic torture
was carried out in a state's prison by its officials, the immunity from civil proceedings for compensation for acts of
torture will apply only to the state and not to its officials. 57
If an international organisation formed by an agreement of Sovereign States is given a corporate status by the law
of the United Kingdom, the organisation becomes a distinct legal entity from its members who cannot be made
liable for the debts of the organisation. 58 So if the organisation is by law also given legal immunity, the result is
that neither the organisation nor the member States can be sued. 59 Agreements or treaties entered into by
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Sovereign States, unless incorporated in law by statute, cannot be enforced in municipal courts either by the
member States or by a third party. 60
In India as provided in s. 86 of the Code of Civil Procedure a foreign State cannot be sued except with the consent
of the Central Government certified in writing by a Secretary to that Government. A tenant of immovable property
can, however, sue without such consent the foreign State from whom he holds or claims to hold the property.
Consent to sue cannot be given unless it appears to the Central Government that the foreign State: (a) has
instituted a suit in the court against the person desiring to sue it, or (b) by itself or another, trades within the local
limits of the jurisdiction of the court, or (c) is in possession of immovable property situate within those limits and is to
be sued with reference to such property or for money charged thereon, or (d) has expressly or impliedly waived the
privilege accorded to it. 61 The immunity under section 86 also covers foreign corporations which are state owned
and are like government departments even though they carry on commercial or trading activities. 62 Having regard
to the modern trend of taking a restricted view of State immunity the Supreme Court has ruled that consent to sue
should generally be granted if conditions mentioned in the section are satisfied. 63
10. AMBASSADORS
The law on the privileges and immunities of diplomatic representatives in the United Kingdom is contained in the
Diplomatic Privileges Act, 1964, which gives the force of law to the relevant provisions of the Vienna Convention on
Diplomatic Relations, 1961. In India, any Ambassador or envoy of a foreign State, any High Commissioner of a
Commonwealth country and any such member of their staff, as the Central Government may specify, cannot be
sued except with the consent of the Central Government certified in writing by a secretary to the Goernment. The
provisions of section 86 of the Code of Civil Procedure apply in this respect as they apply in relation to a foreign
State and permission to sue can be granted on grounds on which a foreign State can be allowed to be sued. 64
11. MINOR
The normal age of majority in India is 18 years, but if a guardian is appointed before that age by a court or property
is taken under superintendence by a court of wards, the age of majority is 21 years. 65 The criminal law confers
immunity on minors of tender years; a child below 7 years cannot at all be held liable for any offence, 66 and a
child between the ages of 7 and 12 is not liable unless he had attained sufficient maturity to judge the nature and
consequence of his conduct on the occasion. 67 As regards contracts a minor is incompetent to contract and an
agreement entered into with him is void. 68 The law of torts makes no special provision for minors.
Pre-natal injuries
A minor can sue for all torts committed against him like any other person except that he has to bring his suit through
a next friend. The preponderance of authority now is that a minor can also sue for pre-natal injuries. 69 The
difficulty, that at the time the injury is inflicted, there is no legal person, for the fetus is not a legal person is met
either by holding that the cause of action arises on the birth of the child who is deformed or by fictionally attributing
personality to the fetus as is done in cases where a posthumous child is held entitled to claim under the Fatal
Accidents Act,70 Workmen's Compensation Act71 or under a Will 72 in accordance with the maxim Nasciturus pro
jam nato habetur . 73 On the recommendation of the Law Commission the British Parliament passed the
Congenital Disabilities (Civil Liability) Act, 1976, section 1 of which provides that a person responsible for an
occurrence affecting the parent of a child, causing the child to be born disabled, will be liable to the child if he would
have been liable in tort to the parent affected. 74 There is no liability for a pre-conceptional occurrence if the
parents accepted the particular risk. There are also other exceptions and qualifications in the Act. It further appears
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that a deformed child cannot claim damages either under the Act or under general law when the deformity resulted
because of an infectious disease suffered by the mother during pregnancy and the fault of the doctor was in not
advising the mother of the desirability of abortion for although the doctor owed a duty to the mother to advise her of
the infection and its potential and serious effects and on the desirability of the abortion in those circumstances, it did
not follow that the doctor was under legal obligation to the fetus to terminate its life or that a fetus had a legal right
to die; such a claim for ‘wrongful life’ would be contrary to public policy as a violation of sanctity of human life. 75
When the pregnancy and birth follow a sterilisation operation, the mother can claim in full the financial damage
sustained by her as the result of the negligent failure to perform the sterilisation operation properly, regardless of
whether the child was healthy or abnormal and she is entitled to damages for loss of earnings, pain and suffering
and loss of amenities including extra care the child would require in case of being born deformed. 76 But the
deformed child in these circumstances would not be entitled to sue for damages as it could not be said that there
was any injury caused to the fetus or to the parents by the negligence of the doctor which caused the deformity. In
the absence of any Indian Act, the Indian courts can take guidance from the English Act in deciding suits by minors
relating to congenital disabilities. The Supreme Court in Union Carbide Corporation v. Union of India , 77 referred
to the English Act and held that those who were yet unborn at the time of the Bhopal gas leak disaster and who are
able to show that their congenital defects are traceable to the toxicity from the gas leak inherited or derived
congenitally will be entitled to be compensated. Indeed, father of a girl child conceived and born after the disaster
who died after four months showing symptoms of gas effect because the mother had inhaled the gas was allowed
compensation of Rs.1.5 lakh by the Supreme Court. 78
No protection but age taken into account
A minor enjoys no special protection in a suit filed against him for a tortious act. But his age has to be taken into
account when any mental element such as intention, malice or negligence on his part is relevant for deciding his
liability. In Tillander v. Gosselin, 79 a child aged 3 years dragged another child of the same age for several feet and
caused extensive injuries but as intention or negligence could not be imputed to him because of his tender age, he
was not held liable. In Me Hale v. Watson, 80 a minor aged 12 threw a metallic dart towards a post made of hard
wood hoping that its sharp end would stick; but instead of sticking, the dart bounced and hit a girl standing closeby.
The High Court of Australia absolved the minor of liability for negligence as a boy of his age could not be expected
to foresee the risk involved. In holding so the court applied the principle that where an infant defendant is charged
with negligence, his age is a circumstance to be taken into account and the standard by which his conduct is to be
measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same
age, intelligence and experience. 81 The result of the case would have been different if the dart had been thrown
towards the girl. The Australian case was followed by the court of appeal in Mullin v. Richards 82 . In this case two
fifteen year old girls M and R were engaged in playing around with plastic rulers as if they were fencing when one of
the plastic rulers snapped and a fragment entered M's right eye as a result of which she lost all her useful eye sight.
M brought proceedings for negligence against R which were dismissed by the court of appeal on the ground that
the accident was not foreseerable. In holding so and adopting the test laid down in the Australian case
HUTCHISON, L.J. observed : “The question for the judge is not whether actions of the defendant were such as an
ordinarily prudent and reasonable adult in the defendant's situation would have realised gave rise to risk of injury, it
is whether an ordinarily prudent and reasonable 15 year old school girl in the defendant's situation would have
realised as much.” 83 When contributory negligence is alleged against a minor the same principle is to be applied;
“the test is, what degree of care for his own safety can an infant of the particular age reasonably be expected to
take.” 84 Subject to these limitations, as earlier stated, a minor is liable like any adult for the tortious acts. For
example in the case of a violent assault and battery on a harmless man, the act in itself is sufficient to support the
cause of action and the wrongdoer, even if a minor, is liable. 85 Infants are liable for wrongs of omission as well as
for wrongs of commission. Thus infants are held liable for assault, false imprisonment, libel, slander 86 seduction,
trespass, 87 wrongful detention of goods, 88 fraud, 89 embezzling money, 90 and for nuisance and injuries to
their neighbours, arising from the negligent use and management of their property.
No liability in tort from void agreement
A minor's agreement is void even if he fraudulently represents himself to be of full age 1 and so he cannot be made
to repay a loan so obtained by changing the form of action to one for deceit. 2 But he can be compelled to specific
Page 21 of 45
restitution, when that is possible, of property obtained by false representation provided it is identifiable and still in
his possession or control. 3 In the words of LORD SUMNER; “Restitution stops where repayment begins.” 4
Although an infant is liable for a tort, yet an action grounded on contract cannot be changed into an action of tort. 5
Thus, an infant was held not liable for overriding a mare which he had hired, 6 or for unskilfully driving a motor-car
and damaging it. 7 But where an infant hired a mare and was expressly told that she was not fit for leaping, but she
was put to a fence, and in taking it, fell upon a stake and was so injured that she died, he was held liable, for it was
just as much a tort as if he had taken the mare out of the plaintiff's stable without leave. 8 If it were in the power of
a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the
law affords to infants. 9
Liability of parent.— A father or a guardian is not responsible for the torts of the minor. 10 But the circumstances of
a case may be such as to constitute the child the servant for the time being of the father, in which case the father
may be liable as a master for the acts, neglect and default of his child, as when he sends out his son on some
business with his cart and horse, and the son causes injury by negligence in driving. 11 A father may also be liable
for his own personal negligence in allowing his child an opportunity of committing a wrong, as when he supplies his
son with an air-gun or allows him to remain in possession of it after complaints of mischief caused by the use of the
gun, and the boy afterwards accidentally wounds a person. 12
12. LUNATIC
Insanity is a good defence in the Criminal Law when at the time of commission of the crime, the accused by reason
of unsoundness of mind was incapable of knowing the nature of his act or that what he was doing was either wrong
or contrary to law. 13 Such a wide exemption is not admissible in the law of torts the object of which is
compensation and not punishment. It may be generally stated that when the insanity is of such a grave nature that
the defendant was unable to know the nature of his act, he would not be liable in tort for the act in such a case will
not be a voluntary act which is necessary for constituting a tort. 14
In cases where no specific intent or malice is an ingredient of the tort, the defendant would be liable if he knew the
nature of his act, although, because of unsoundness of mind he was unable to know that what he was doing was
wrong or contrary to law. This would be the position in actions for trespass, 15 conversion, defamation 16 and
other torts where what is necessary to prove is only that the defendant intended to do the physical act which
constitutes the tort. So a person was held liable in tort for violent assault and battery when he knew the nature of his
act though because of mental disorder he did not know that it was wrong. 17 But in cases where specific intent or
malice is necessary to constitute the tort, e.g. , malicious prosecution, deceit or libel on a privileged occasion, the
defendant will escape liability if his defective mental condition negatives the existence of the required specific intent
or malice, as the case may be, though he is not so incapacitated as not to know the nature of his act. 18 In dealing
with cases relating to the tort of negligence, difficulty is created because the legal standard is that of a man of
ordinary prudence which eliminates the personal equation and idiosyncrasies of the defendant. The defendant,
therefore, may escape liability by showing that his act was not a voluntary act, e.g., by proving that the act was
entirely beyond his control, 19 but not merely by showing that he was unable to take proper precautions because
his mental faculties were affected by disease of the mind. Thus a driver of a motor vehicle cannot escape liability by
showing that he felt that his vehicle was under a remote control from head office, 20 or by showing that he
suddenly suffered a malfunction of the mind which so clouded his consciousness that from that moment he was,
through no fault of his own, unable properly to control the vehicle or to appreciate that he was no longer fit to drive.
21
1
33 & 34 Vic., c. 23, ss. 8, 30.
2
Page 22 of 45
11 & 12 Geo., VI, c. 58, Sch. 10, Part I.

3
Raymond v. Honey , (1982) 1 All ER 756, p. 759 : 1983 AC 1 (HL).

4
R. v. Hull Prison Board of Visitors , ex parte St. German , (1979) 1 All ER 701 (CA), p. 716; Leach v.
Parkhurst Prison Deputy Governor , (1988) 1 All ER 485 (HL), p. 501; Regina v. Deputy Governor of
Parkhurst Prison, (1991) 3 WLR 340 (HL).
5
D.B.Y. Patnaik v. A.P ., AIR 1974 SC 2092, p. 2094 : (1975) 3 SCC 185 [LNIND 1974 SC 269] : 1975 Cri LJ
556; see further , D.K. Basu v. State of West Bengal, AIR 1997 SC 610, pp. 618, 619 : (1997) 1 SCC 416
[LNIND 1996 SC 2177] ; State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 6 JT 334 [LNIND
2000 SC 741], pp. 345 to 347 : AIR 2000 SC 2083, pp. 2088 to 2092 : (2000) 5 SCC 712 [LNIND 2000 SC
741].
6
Sunil Batra v. Delhi Administration , AIR 1978 SC 1675, p. 1727 : (1978) 4 SCC 494 [LNIND 1978 SC 215].
For directions of the Supreme Court for jail reforms, see, Rama Murthy v. State of Karnataka, AIR 1997 SC
1739 : (1997) 2 SCC 642. For direction for payment of equitable wages to prisoners from whom work is
taken, see, State of Gujarat v. Hon'ble High Court of Gujarat, AIR 1998 SC 3164.
7
R. v. Deputy Governor of Parkhurst Prison , (1990) 3 All ER 687 (CA), p. 709.

8
Smt. Kewal Pati v. State of U.P., (1995) 3 SCC 600 : (1995) 2 Scale 729 : 1995 ACJ 859.
9
See text and note 50, pp. 53, 54.

10
Savage v. South Essex Partnership NHS Foundation Trust, (2009) 1 All ER 1053 (H.L.).
11
R. v. Secretary of State for the Home Department, exparte Daly, (2001) 3 All ER 433, p. 437 : (2001) UK
HL 26 : (2001) 2 AC 532 : (2001) 2 WLR 1622 : (2001) 3 All ER 433 (H.L.).
12
R. v. Secretary of State for the Home Department, (1999) 3 All ER 400 (HL).
13
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 284 : AIR 2005 SC 972 :
(2005) 3 SCC 307 : AIR 2005 SC 4041.
14
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, (2005) 3 SCC 311.
15
Hague v. Deputy Governor of Parkhurst Prison , (1991) 3 All ER 733 (HL) : (1991) 3 WLR 340 (HL).
Page 23 of 45
16
Scotland v. South African Territories (Limited), (1917) 33 TLR 255.

17
Porter v. Freudenberg, (1915) 1 KB 857, p. 869; Sovracht (VO) v. Van Udens Scheepvarten Agentuur
Maatschappij (N.V. Gabr.), (1943) AC 203 (HL).
18
De Wahl v. Braune , (1856) 1 H & N 178.

19
The Hoop , (1799) 1 Rob 196, 201.

20
Johnstone v. Pedlar, (1921) 2 AC 262 : 37 TLR 870 : 90 LJPC 181 : 125 : LT 809.
21
Civil Procedure Code, Act V of 1908, s. 83.
22
Explanation to s. 83 Civil Procedure Code. But, see,Manaseeh Film Co. v. Gemini Picture Circuit , AIR
1944 Mad 239 [LNIND 1943 MAD 98].
23
45 & 46 Vic., c. 75, s. 1.
24
25 & 26 Geo., V., c. 30, s. 1.
25
10 & 11 Eliz. 2, c. 48.
26
Ajay Hasia V. Khalid Mujib , AIR 1981 SC 487, pp. 498, 499 : (1981) 1 SCC 722 [LNIND 1980 SC 456].
27
See, Church v. Church, (1983) 133 NLJ 317, where damages were allowed in an action for battery between
spouses; cited in WINFIELD and JOLOWICZ, 12th edition, p. 690, footnote 39.
28
Midland Bank Trust Co. Ltd. v. Green (No. 3), 1979 Ch. 496 : 1982 Ch 529 (CA).
29
Bognor Regis. UDC v. Campion, (1972) 2 QB 169 : (1972) 2 WLR 983.

30
Quartz Hill Gold Mining Co. v. Eyre, (1883) 11 QBD 674.

31
Metropolitan Saloon Onmibus Co. v. Hawkins , (1889) 4 Hd No. 87 : 28 LJ Ex 201.

32
Page 24 of 45
Mayor etc. of Manchester v. Williams, (1891) 1 QB 94.

33
Derbyshire County Council v. Times News Papers Ltd ., (1993) 1 All ER 1011, p. 1017 : 1993 AC 534 (HL).
See further , D. & L. Caterers Ltd. v. D'Ajou, (1945) 1 KB 364; National Union of General and Municipal
Workers v. Gillan, (1946) KB 81 : (1945) 2 All ER 543; Willis v. Brooks , (1947) 1 All ER 191 : 62 TLR 745;
South Heton Coal Co. Ltd. v. N.E. News Association Ltd., (1894) 1 QB 133.
34
D. & L. Caterers. Ld. v. D'Ajou, (1945) 1 KB 364 : 114 LJKB 386 (CA).
35
PER LORD BRAMWELL in Abrath v. North Eastern Railway Co ., (1883) 11 App. Cas 247 : 55 LT 63.
36
Mersey Docks Trustees v. Gibbs , (1866) LR 1 HL 93.

37
Stevens v. Midland Counties Ry. Co ., (1854) 10 Ex. 352.

38
Lennard's Carrying Co. Ltd. v. Asiatic Petrolium Co. Ltd ., (1915) AC 705, p. 713 : 113 LT 195 (HL).
39
EL A Jou v. Dollar Land Holdings plc. , (1994) 3 All ER 685 (CA), pp. 695, 696 : (1994) 1 BCLC 464.
40
Meridian Global Funds Management Asia Ltd. v. Securities Commission , (1995) 3 All ER 918 (PC), pp.
922 to 926 : (1995) 2 AC 500 : (1995) 3 WLR 413 (PC), see further G.P. SINGH, Principles of Statutory
Interpretation, 10th edition, pp. 864 to 871.
41
Re Supply of Ready Mixed Concrete (No. 2), (1995) 1 All ER 135 (HL).
42
Meridian Global Funds Management Asia Ltd. v. Securities Commission , supra , p. 926.
43
Barwick v. English Joint Stock Bank , (1867) LR 2 Ex. 259; Citizen Life Assurance Co. v. Brown, (1904) AC
423; Ahmedabad Municipality v. Panubhai , (1934) 37 Bom LR 468; M.P. Trust v. Safiulla and Co ., AIR
1965 Mad 133 [LNIND 1961 MAD 166].
44
A corporation is held liable for libel (Whitfield v. South Eastern Railway Company , (1858) El Bl & El 115;
Nevill v. Fine Arts & General Ins. Co ., (1895) 2 QB 156; Citizens’ Life Assurance Co. v. Brown, (1904) AC
423 ) : 20 TLR 497; for acts of misfeasance by its servants (Green v. London General Omnibus Co ., (1859)
7 CBNS 290 ); for fraudulently trading in the name of another (Lawson v. The Bank of London, (1856) 18
CB 84 ); for false imprisonment, Goff v. Great Northern Railway Company , (1861) 3 E & E 672; Lambert v.
Great Eastern Railway, (1909) 2 KB 776 ); for malicious prosecution (Edwards v. Midland Railway Co .,
(1880) 6 QBD 287; Cornford v. Carlton Bank Limited, (1899) 1 QB 392, (1900) 1 QB 22; Rayson v. South
London Tramways Company, (1893) 2 QB 304 : 69 L.T. 491; Mg. Kyaw Nyun v. Maubin Municipality ,
Page 25 of 45
(1925) 4 Burma LJ 139; Chhaganlal v. Thana Municipality , (1931) 34 Bom LR 143, 56 Bom 135; contra,
Stevens v. Midland Counties Railway Co ., (1854) 10 Ex. 352 ; Henderson v. The Midland Railway
Company, (1871) 24 LT 881; Abrath v. North Eastern Railway Co ., (1886) 11 App Cas 247; C.S. Co-
operative Credit Society Ltd. v. Becharam , (1938) 42 CWN 1219; for fraud (Mackay v. Commercial Bank of
New Brunswick , (1874) LR 5 PC 394; Houldsworth v. City of Glasgow Bank , (1880) 5 App Cas 317; for
distress (Smith v. The Birmingham Gas Company , (1834) 1 A & E 526); for trespass (Maund v. The
Monmouthshire Canal Company , (1842) 4 M & G 452); for assault (Eastern, Counties Railway Co. v.
Broom , (1851) 6 Ex. 314 ; Butler v. Manchester, Sheffield, and Lincolnshire Railway Co., (1888) 21 QBD
207 ); for conversion (Yarborough v. The Bank of England , (1812) 16 East 6) ; for nuisance (Borough of
Bathurst v. Macpherson , (1879) 4 App Cas 256); for negligence (Gilbert v. Corporation of Trinity House,
(1886) 17 QBD 795; The Rhosing (1885) 10 PD 131; Dormont v. Furnes Railway Co., (1883) 11 QBD 496;
Scott v. Mayor of Manchester , (1856) 1 H & N 59; Cowley v. Mayor, etc. of Sunderland , (1861) 6 H & N
565; Mersey Docks Trustees v. Gibbs , (1866) LR 1 HL 93; McCelland v. Manchester Corporation, (1912) 1
KB 118 ).
A trade union registered under the Trade Union Acts, 1871 and 1876 (34 & 35 Vic., c. 31 and 39 & 40 Vic.,
c. 20) may be sued in its corporate name : Taff Vale Ry. v. Amalgamated Society of Railway Servants,
(1901) AC 426. But this decision has been overruled by s. 4 of the Trade Disputes Act, (1906), (6 Edw. VII,
c. 47), which says that no Court is to entertain any action for tort brought against a trade union or against
any members on behalf of themselves and all other members of the union.
45
Mersey Docks Trustees v. Gibbs, (1866) LR 1 HL 93, 104.

46
Ibid .; The Bearn , (1906), p. 48.

47
Lucknow Development Authority v. M.K. Gupta , AIR 1994 SC 787 : (1994) 1 SCC 243 [LNIND 1993 SC
946] : (1994) 80 Com Cases 714.
48
Ibid; Gaziabad Development Authority v. Balbir Singh , AIR 2004 SC 2141 : (2004) 5 SCC 65 : (2004) 121
Com Cases 409.
49
The leading case on the subject is Poulton v. London and S.W. Ry. Co ., (1867) LR 2 QB 534. In that case
a station-master in the employ of the defendant company arrested the plaintiff for refusing to pay the freight
for a horse that had been carried on the defendant's railway. The railway company had authority under the
Act of Parliament to arrest a person who did not pay his fare but none to arrest a person for non-payment
for the carriage of goods. It was held that the railway company was not liable. The company having no
power itself to arrest for such non-payment, it could not give the station-master any power to do the act.
The plaintiff's remedy for the illegal arrest in such a case would be against the station-master only.
50
WINFIELD and JOLOWICZ, Tort, 12th edition, p. 692, SALMOND and HEUSTON, Torts, 20th edition, p.
442; CLERK and LINDSELL, Torts, 15th edition, p. 136. But the Corporation may not be liable if the
appointment of the servant is itself ultra vires .
51
Page 26 of 45
Lennard's Carrying Co. v. Asiatic Petroleum Co ., (1915) AC 705, p. 713 : 113 LT 195 (HL). In this case a
corporation was held guilty of “actual fault” within the meaning of the Merchant Shipping Act s.See further ,
p. 37, supra .
52
(1911) 1 KB 869 : 104 LT 394.

53
Ibid, p. 875.
54
CLERK & LINDSELL, Torts, 15th edition, p. 137; WINFIELD & JOLOWICZ, Tort, 12th edition, p. 693;
SALMOND & HEUSTON, Torts, 20th edition, p. 422.
55
Tiruveriamuthu Pillai v. Municipal Council , AIR 1961 Mad 230 [LNIND 1960 MAD 112]: (1961) Mad 514 :
1961 Kerala LT 153 : 74 MLW 104: The plaintiff's dog was killed by the employee of a Municipal Council in
the course of the discharge of his function of killing stray dogs in the Municipal town expressly authorised
by the Council. In an action by the plaintiff for damages against the Council for the loss of the dog, held ,
that the Council was liable for the unlawful act of having brought about the destruction of the plaintiff's dog
and the fact that the Council acted in excess of its statutory powers was not a defence to the action but was
only an aggravating circumstance.
56
Henriques v. Dutch West India Company , (1728) 2 Ld. Raym 1532; Newby v. Colts Patent Firearms Co. ,
(1872) LR 7 QB 293.
57
Union Carbide Corporation v. Union of India , 1988 MPLJ 540. See, PROF. D.V.N. REDDY, Industrial
Disasters Responsibility of Transnational Corporations and the Home and Host States, (1992) Vol. 5,
Central Indian Law Quarterly 170, pp. 171 to 175. PROF. REDDY states at p. 173: “The present trend in
developed states especially in the USA, is to hold the parent company liable to make reparations for the
environmental damage caused by their under capitalized subsidiaries engaged in ultrahazardous industrial
activities” and cites Taylor v. Standard Gas and Electronic Company, 306 USA (1939), p. 309 in support.
58
Raja Pramada Nath Roy v. Shebait Purna Chandra Roy, (1908) 7 CLJ 514.
59
PER LORD MOLSON introducing the Bill to amend the common law rule. See, SALMOND & HEUSTON,
Torts, 18th edition, p. 86.
60
The Act as expressed in section 58 (3) binds the crown.
61
Goodes v. East Sussex County Council, (2000) 3 All ER 603, pp. 608-610 : (2000) 1 WLR 1356 : 2000 RTR
366 (HL).
62
Ibid.
63
Page 27 of 45
Gorringe v. Calderdale Metropoliton Borough Council , (2004) 2 All ER 326 (HL).

64
Stovin v. Wise , (1996) 3 All ER 801 : 1996 AC 923 : (1996) 3 WLR 388 (HL).
65
Wentworth v. Wiltshire Country Council , (1993) 2 All ER 256 : 1993 QB 654 : (1993) 2 WLR 175 (CA).
66
Achratlal v. Ahmedabad Municipality , (1904) 6 Bom LR 75 : ILR 28 Bom 340; Mohanlal v. Ahmedabad
Municipality , (1937) 40 Bom LR 552 : ILR (1938) Bom. 696; District Board, Badaun v. Sri Niwas , (1942)
ALJR 619; Rahim Bakhsh v. Municipal Board, Bulandshahr , (1939) ALJR 101 : AIR 1939 All 213 .
67
See, Chapter 1, title 1, pp. 2, 3 and 4.
68
Brodie v. Singleton Shire Council, (2001) 75 ALJR 992, pp. 1006, 1007, 1021-1026 (Australia).
69
Subramanyam v. District Board , AIR 1941 Mad 733 ; District Board, Manbhum v. Shyamapada , AIR 1955
Pat 432 .
70
S. Vedantacharya v. Highway Department of South Arcot, (1987) 3 SCC 400 : 1987 SCC (Cri) 559. For a
case where proper arrangement was not made for lighting a street and the Cantonment Board was held
liable, see, Dr. C.B. Singh v. The Cantonment Board , Agra, 1974 ACJ 248 (All).
71
Gorringe v. Calderdale Metropoliton Borough Council , (2004) 2 All ER 326 (HL). See further Stovin v.
Wise , (1996) 3 All ER 801 (HL) and Rajkot Municipal Corporation v. Manjulaben Jayantilal Nakum , AIR
1998 SC 640 discussed at pp. 475, 476.
72
Brown v. Lewis, (1896) 12 TLR 455; Bradley Egg Farm Ltd. v. Clifford , (1943) 2 All ER 378, Prole v. Allen ,
(1950) 1 All ER 476.
73
AIR 1974 Punj 256 : (1974) 76 Pun LR 416 : ILR (1976) 1 Punj 279 . See also, ILR (1976) 1 Cal 57 .
74
(1901) AC 426 : 85 LT 147 (HL). It was also held that a registered Trade Union has a right to sue; see,
National Union of General and Municipal Workers v. Gillan, (1946) KB 81 : (1945) 2 All ER 593; Willis v.
Brooks , (1947) 1 All ER 191; B.M.T.A. v. Salvadori, (1949) Ch 556. Sec. 2(1) of the Trade Union and
Labour Relations Act, 1974 provides that a Trade Union shall not be treated as a corporate body though it
can sue or be sued in its name. After this legislation it has been held that a trade union has no sufficient
personality to be a plaintiff in a libel action; Electrical and Plumbing Union v. Times News Papers, (1980)
QB 585 : (1980) 3 WLR 98. For an action against an unregistered Union where liability was imposed see,
Heatons Transport (St. Helens) Ltd. v. Transport and General Workers Union, (1973) AC 15 : (1972) 3
WLR 431 (HL).
75
Page 28 of 45
(1956) AC 104 (HL).

76
This corresponds to sections 13 and 14 of the Trade Union and Labour Relations Act, 1974 and sections 15
and 16 of the Employment Act, 1982. The provisions of the English Acts are different in scope. The English
law now treats trade unions as natural persons subject to rule of law with certain qualifications. SALMOND
and HEUSTON, Law of Torts, 20th edition, p. 424.
77
Howard v. Crowther, (1841) 8 M & W 601.

78
Hodgson v. Sidney , (1866) LR 1 Ex. 313.

79
Beckham v. Drake , (1849) 2 HC 579, 632.

80
Wilson v. United Counties Bank, (1920) AC 102 : 122 LT 76.

81
Blackstone , Vol. I, p. 246.

82
Tobin v. The Queen , (1864) 16 CB (NS) 310, 354.

83
Canterbury (Viscount) A.H. General, (1842) 1 Ph 306; High Commr. for India & Pakistan v. Lall , (1948) 50
Bom LR 649 : AIR 1948 PC 121 : 75 IA 225; Union of India v. F. Gian Chand Kasturi Lal, (1954) 56 PLR 68
: AIR 1954 Punj 159 : ILR (1954) Punj 602.
84
Raleigh v. Goschen, (1898) 1 Ch 73 : 77 LT 429; Bainabridge v. The Postmaster General, (1906) 1 KB 178.
Subject to a statutory provision a government department enjoyed crown immunity, Minister of Supply v.
British Thompson-Houston Co., (1943) KB 478.
85
Royster v. Cavey, (1947) KB 204 : (1946) 2 All ER 642.

86
10 & 11 Geo., VI, c. 44.
87
8 & 9 Geo., VI, c. 28.
88
Home Office v. Dorset Yacht Co., (1970) AC 1004 : (1970) 2 All ER 294 (HL). See further, M. v. Home
Office, (1993) 3 All ER 537 (HL), p. 553 : (1994) 1 AC 377 : (1993) 3 WLR 433, where the legal position
before and after the 1947 Act is discussed. Substantial portion of the text under the title ‘8(A) English Law’
from 23rd Edition of this book is quoted with approval in State of Andhra Pradesh v. Challa Ramkrishna
Reddy, AIR 2000 SC 2083, p. 2088 : (2000) 5 SCC 712 [LNIND 2000 SC 741].
89
Page 29 of 45
Cases C-46 and 48/93 Brasserie du Pecheur SA v. Germany ; R v. Secretary of State for Transport Exp.
Factortome Ltd., (1996) 1 ECR 1029; R v. Secretary of State for Transport Exparte Factortome Ltd. , (1999)
4 All ER 906, p. 916 (HL).
90
For meaning of ‘public authority’ as defined in the Act see Poplar Housing and Regeneration Community
Association Ltd. v. Donghue, (2001) 4 All ER 604 : (2001) 3 WLR 183 : (2001) 2 FLR 284; R (on the
application of Heather) v. Leonard Cheshire Foundation , (2002) 2 All ER 936 (CA).
91
section 32 ; section 176(1).
92
See, title 8(B)(iii) Public Law Wrongs, pp. 50 to 63.
93
(1868-1869) 5 Bom HCR App 1 P. 1 (Curiously the case is not reported in any Calcutta Law Journal.)
1
Ibid .
2
Ibid .
3
Secretary of State for India v. Hari Bhanji , ILR (1882) 5 Mad 273 .
4
Rao v. Advani , (1949) 51 Bom LR 342, p. 396-7 : AIR 1949 Bom 277 . In appeal to the Supreme Court
MUKERJEE, J., alone dealt with this question and he approved the view of the Madras and Bombay High
Courts, see, Province of Bombay v. K.S. Advani, (1950) SCR 621 [LNIND 1950 SC 32], p. 696 : AIR 1950
SC 222 : 1950 SCJ 451 [LNIND 1950 SC 32]. Law Commission of India in its first report in 1956 also
accepted this view. This view also finds support from two Privy Council decisions viz : Forester v. Secretary
of State for India in Council , (1872) 1 IA Supp. 10 and Secretary of State for India v. Moment , (1912) 40 IA
48.
5
For Act of State, see , title 1, Chapter VI.

6
Nobin Chunder Dey v. Secretary of State for India , ILR (1875-76) 1 Cal 11 : 24 CWR 309.
7
AIR 1962 SC 933 : (1963) 1 SCJ 307 : (1962) 2 SCA 362 [LNIND 1962 SC 46] : (1958-65) ACJ 296.
8
(1958-65) ACJ 296, p. 304.
9
AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 [LNIND 1964 SC 245] : (1965) 1 SCWR 955.
10
Note 93, p. 46, supra .

Page 30 of 45
11
12
Ibid .
13
Ibid .
14

15

16
SEERVAI, Constitutional Law of India, 2nd edition, pp. 1137-39, 1992.
17

18
Text and notes 3 and 4, p. 47, supra .

19
State of Rajasthan v. Vidyawati , AIR 1962 SC 933 : (1963) 1 SCJ 307 : (1962) 2 SCA 362 [LNIND 1962
SC 46] : (1958-65) ACJ 296, p. 304; Shyam Sunder v. State of Rajasthan , AIR 1974 SC 890 : 1974 ACJ
296 : (1974) 1 SCC 690 [LNIND 1974 SC 95], p. 695 (”Today, hardly any one agrees that the stated ground
for exempting the sovereign from suing is either logical or practical”). See further, N. Nagendra Rao & Co.
v. State of Andhra Pradesh , AIR 1994 SC 2663 : (1994) 5 JT 572 [LNIND 1994 SC 789] and Common
Cause a Registered Society v. Union of India, AIR 1999 SC 2979 : (1999) 6 SCC 667 [LNIND 1999 SC
637], which contains an elaborate discussion to show that KASTURILAL was not correctly decided and the
doctrine of sovereign immunity has no relevance in the present day context.
20
See, text and notes 22 to 25, pp. 49-50, infra .

21
Common Cause, a Registered Society v. Union of India, supra, p. 3002, see to the same effect State of
Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2083, p. 2090 : (2000) 5 SCC 712 [LNIND
2000 SC 741].
22
AIR 1967 SC 1885 : (1967) 2 SCWR 387 [LNIND 1967 SC 193] : (1968) 1 SCJ 273 [LNIND 1967 SC 193].
23
AIR 1977 SC 1749 : 1977 Cri LJ 1141 : (1977) 2 SCJ 289.
24
Ibid , p. 1752.
Page 31 of 45
25
Ibid , p. 1751. The Gauhati High Court in State of Assam v. Nizamuddin Ahmad, AIR 1999 Gau 62 [LNIND
1999 GAU 358] followed Kasturilal without adverting to cases in notes 22 and 23 above.
26
AIR 1983 SC 1086 : 1983 Cri LJ 1644 : (1983) 4 SCC 141 [LNIND 1983 SC 181] : (1983) 3 SCR 508
[LNIND 1983 SC 181].
27
(1984) 3 SCC 82 [LNIND 1984 SC 120] : AIR 1984 SC 1026.

28
(1985 4 SCC 677 [LNIND 1985 SC 350] : AIR 1986 SC 494 : 1986 All LJ 653 : 1986 Cri LJ 192.
29
AIR 1990 SC 513 : AIR 1984 SC 1026 : (1990) 1 SCC 422.
30
AIR 1983 SC 1086 : (1983) 4 SCC 141 [LNIND 1983 SC 181] : 1983 Cri LJ 1644 : (1983) 3 SCR 508
[LNIND 1983 SC 181].
31
Ibid.
32

33
See, Bhim Singh v. State of J. & K ., (1985) 4 SCC 677 [LNIND 1985 SC 350], p. 686 : AIR 1986 SC 494 :
1986 All LJ 653 : 1986 Cri LJ 192.
34
Ibid.
35
SAHELI a Woman's Resources Centre v. Commr. of Police, Delhi , AIR 1990 SC 513 : (1990) 1 SCC 422.
36
AIR 1962 SC 933 : 1962 Supp (2) SCR 989.
37
(1990) 1 SCC 422 : AIR 1980 SC 513. In this case a labourer was beaten to death by Delhi Police and
compensation of Rs. 75,000 was allowed.
38
AIR 1990 SC 513, p. 516. See further , State of Maharashtra v. Ravikant S. Patil, (1991) 2 SCC 373
[LNIND 1991 SC 158] : (1990) 1 SCC 422, where in a case of illegal handcuffing and parading a person by
a police sub-inspector the State was directed to pay R s. 10,000 as compensation.
39
Page 32 of 45
(1987) 1 SCC 395 [LNIND 1986 SC 539], pp. 408, 409 : AIR 1987 SC 965.
40
See, text and notes 26 to 39, supra .

41
Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) , (1978) 2 All ER 670 : 1979 AC 385 (PC).
42
Maharaj v. Attorney-General of Trinidad and Tobago , (1977) 1 All ER 411 : 1979 Crim LR 355 : 122 SJ 179
(PC).
43
Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) , (1978) 2 All ER 670 : 1979 AC 385 (PC).
44
Ibid. , p. 679.
45
Ibid. , p. 680.
46
47
Ibid., p. 1966.
48
Ibid. , pp. 1967, 1968. See further , Charanjit Kaur v. Union of India , AIR 1994 SC 1491 : (1994) 2 SCC 1
[LNIND 1994 SC 93] (L.Rs. of an army officer who died in mysterious circumstances giving rise to inference
of acts of omissions and commissions of the concerned authorities, allowed Rs. 6 lakhs under Art. 32 as
compensation as also the special family pension and the children allowance); Inder Singh v. State of
Punjab , AIR 1995 SC 312 1949 : (1995) 3 Scale 418 : (1994) 3 SCC 275 (L.Rs. of each of the seven
persons adbucted and presumably killed by Punjab Police were awarded R s. 1.5 lakhs under Article 32 as
compensation against the State); Punjab and Haryana High Court Bar Association v. State of Punjab , 1996
(4) Scale 416, pp. 420, 421 : (1996) 4 SCC 742 : (In this case an advocate K was abducted by the police of
Punjab and killed. An innocent person H was falsely implicated by the police as the killer. Following Nilbati
Behra's case, the parents of advocate K were awarded 10 lacs as compensation and the innocent person 2
lacs from the State of Punjab in a public interest petition under Article 32 ); Peoples Union for Civil Liberties
v. Union of India, AIR 1997 SC 1203 : (1997) 3 SCC 433 [LNIND 2003 SC 1103] (In this case following
Nilbati Behra compensation of R s. 1 lac was allowed to dependants of a person who was abducted and
shot dead in a false encounter by police); Postsangbam Ningoi Thokchan v. General Officer Commanding,
AIR 1997 SC 3534 (Following Nilbati Behra mothers of boys who were taken into custody by army
authorities and who very likely suffered custodial death were each awarded R s. 1,25,000.); Punjab and
Haryana High Court Bar Association v. State of Punjab, JT 1997 (10) SC 502 : (1996) 4 SCC 742
(Following Nilbati Behra parents of an advocate who was abducted with his wife and child and very likely
killed by the police were allowed 10 lakhs and a person falsely implicated by the police for the crime
allowed 2 lakhs as compensation); Milkiat Singh v. State of U.P., AIR 1999 SC 1522 : (1999) 9 SCC 351
(Father of a sikh youth who was taken in custody by police and later shown to be killed in encounter was
allowed Rs. 5 lakhs as compensation).
49
Page 33 of 45
AIR 1993 SC 1960, pp. 1972, 1973 : (1993) 2 SCC 746 [LNIND 1993 SC 1167]. Neelbati Behra and DR.
ANAND J.’s observation in this case were relied upon by the court of appeal of New Zealand in the case of
Simpson v. Attorney General (Baigent's case), 1994 NZLR although the New Zealand Bill of Rights Act,
1990 does not contain any provision to provide a remedy for infringement of the Rights. Baigent's case has
not been followed in Australia. The view in Australia is that a constitution is not to be construed as
conferring a right to get damages additional to those provided by the common law : Kruger v. The
Commonwealth, (1997) 71 ALJR 991 pp. 1003 (BRENNAN C.J.), 1047, 1048 (GAUDRON, J.), 1061
(GUMMOW J.).
50
AIR 1993 SC 1960, p. 1972 : (1993) 2 SCC 746 [LNIND 1993 SC 1167]. These observations were quoted
and relied upon by the House of Lords (LORD BENGHAM) in R (on the application of Amin) v. Secretary of
State for the Home Department , (2003) 4 All ER 1264, p. 1280 and it was held: “such persons must be
protected against violence or abuse at the hands of state agents. They must be protected against self harm
[See Reeves v. Commissioner of Police of the Metropolis , (1999) 3 All ER 87 ]. Reasonable care must be
taken to safeguard their lives and persons against the risk of avoidable harm (p. 1280)”. The House of
Lords further held that when death occurs in custody there is also a duty to hold a public enquiry with
opportunity for relatives of the deceased to participate “to ensure as far as possible that the full facts are
brought to light that the suspicion of deliberate worgdoing (if unjustified) is allayed, that dangerous practices
and procedures are rectified and that those who have lost their relative may atleast have the satisfaction of
knowing that lessons learned from his death may save the lives of others” (p. 2181). See further R (on the
application of Middeton) v.West Somerset Coroner , (2004) 2 All ER 465 (HL) (Coroners investigation as
now read compatible with Human Right Act, 1998). R (on the application of JL) v. Secretary of State for
Justice, (2009) 2 All ER 521 (H.L.) (prisoner in custody attempting suicide suffering serious injury enhanced
investigation required by the State); R (on the application of D) v. Secretary of State for Home Department,
(2006) 3 All ER 946(H.L.). In India also by Criminal Procedure (Amendment) Act, 2005, section 176 of the
Cr.P.C. has been amended to provide that in the case of death or disappearance of a person, or rape of a
woman while in the custody of the police, there shall be a mandatory judicial enquiry in which relations of
the victim will be allowed to be present and in case of death, examination of the dead body shall be
conducted within twenty four hours of death.
51
AIR 1997 SC 610 : (1997) 1 SCC 416 [LNIND 1996 SC 2177].

52
Ibid., p. 628.
53
54
See, pp. 210 to 213, post.

55
AIR 2000 SC 2083 pp. 2090, 2091 : (2000) 5 SCC 712 [LNIND 2000 SC 741]. This case was followed by
the Punjab and Haryana High Court in holding that when on a false report lodged by a food inspector the
plaintiff was prosecuted and had to remain in jail for 7 days, the state was vicariously liable for the tort of
malicious prosecution along with the food inspector : AIR 2004 P&H 113, p. 115 (para 11).
56

Page 34 of 45
57
Ibid., p. 940.
58
Ibid., p. 941. This case apparently extends the protection under Article 32 to cover every company and
every person. To this extent it is of doubtful validity, for in two earlier constitution bench decisions, viz. P.D.
Shamdasani v. Central Bank of India , AIR 1952 SC 59 : 1952 SCR 391 [LNIND 1951 SC 78] and Smt.
Vidya Verma v. Dr. Shiv Narain Verma , AIR 1956 SC 108 : (1955) 2 SCR 283 it was held that the
fundamental right under Article 21 is available only against the State and its instrumentalities and not
against private persons, and the remedy under Article 32 cannot be invoked against private individuals for
violation of Article 21. Further, in M.C. Mehta v. Union of India , AIR 1987 SC 965 : (1987) 1 SCC 395
[LNIND 1986 SC 539], a Constitution Bench of the Supreme Court declined to decide whether a private
corporation was ‘state’ within Article 12 and therefore subject to the discipline of Article 21 and for this
reason no relief was granted against the corporation under Article 32. The entire judgment proceeds on the
basis that Article 21 is not available against private persons and corporations not coming within the
definition of state under Article 12. The same view had been expressed in ADM, Jabalpur v. V.S. Shukla ,
AIR 1976 SC 1207, p. 1233 (para 80) and p. 1361 (para 521) : (1976) 2 SCC 521 [LNIND 1976 SC 196].
In Indian Council for Enviro Legal Act ion v. Union of India , AIR 1996 SC 1446 : (1996) 2 Scale 44 [LNIND
1996 SC 353], pp. 72, 73, directions were issued against the Central Government to exercise its statutory
powers under sections 3 and 5 of the Environment (Protection) Act, 1986, to take remedial measures to
restore the soil, water sources and the environment in general of the affected areas and to recover cost of
the same from Polluting industries. The Rajasthan Pollution Control Board was directed to enforce the
closure of the industries till such time as they did not comply with the directions and obtain requisite
permissions and consents of the relevant authorities. As regards damages to the villagers of the affected
areas, the Court observed that it was open to them or to any organisation on their behalf to institute suits in
appropriate civil court. This case thus proceeds on the lines of the Mehta case and does not extend Articles
21 and 32 for awarding damages against private companies and industries.
In M.C. Mehta v. Kamalnath, AIR 2000 SC 1997 : (2000) 7 JT 19 : (2000) 6 SCC 213 [LNIND 2000 SC
893], the court in a petition under Article 32 set aside a lease of ecologically fragile land granted by the
Himachal Pradesh Government to Kamalnath and directed the Govt. to take over the area and restore it to
its original natural condition and to recover the cost of restitution as compensation from Kamalnath. This
case is also on the lines as the case of Indian Council for Enviro Legal Act ion (supra). The real violation of
Article 21 in this case was by the state in granting the lease under which Kamalnath acted and his acts
damaging the environment were thus done under the authority of the state. After cause was shown
exemplary damages of R s. 10 lakhs were imposed (AIR 2002 SC 1515 ) by a two judge bench. This case
is of doubtful authority as it ignores the three judge bench case of common cause a registered Society v.
Union of India , AIR 1999 SC 2979 discussed at pp. 55, 56.
In Lata Wadhwa v. State of Bihar, AIR 2001 SC 3218 : (2001) 8 SCC 197 [LNIND 2001 SC 1718]
compensation was allowed under Article 32 against the Tata Iron and Steel Company and in M.S. Grewal v.
Deepchand Sood, AIR 2001 SC 3660 : (2001) 8 SCC 151 [LNIND 2001 SC 1809] in a petition under Article
226 compensation against a Public School was allowed under the Fatal Accidents Act. But in both these
cases objections regarding the tenability of petitions though raised were not pressed.
There is yet no constitution bench decision departing from the earlier constitution bench decisions which
restricted the availability of Article 21 against the state and its instrumentalities only.
59
Nalini Kant Sinha v. State of Bihar , AIR 1993 SC 1358 : 1993 Supp (4) SCC 748.
60
Page 35 of 45
Ibid., p. 1360.
61
Ibid., p. 1359. There may, however, be circumstances such as delay or large scale revision of seniority to
disentitle back wages of the higher post and the court may grant only notional promotion, seniority and pay
fixation of the higher post on that basis; see, Paluru Ramkrishnaiah v. Union of India , AIR 1990 SC 166, p.
175 : (1989) 2 SCC 541 [LNIND 1989 SC 172] ; Telecommunication Engineering Service Association v.
Union of India , 1994 Supp (2) SCC 22 : JT 1994 (7) SC 58 [LNIND 1994 SC 538], pp. 60, 61.
62
A Common Cause a Registered Society v. Union of India , AIR 1996 SC 3538 : 1996 (7) Scale 156 [LNIND
1996 SC 1542], (1996) 8 Scale 127 [LNIND 1996 SC 2843] : AIR 1997 SC 1886; Shivasagar Tiwari v.
Union of India , (1996) 7 Scale 643; (1996) 8 Scale 338 : AIR 1997 SC 1483. The facts of these cases are
discussed under the head Misfeasance in public office.
63
AIR 1993 SC 1960, pp. 1966, 1969 : (1993) 2 SCC 746 [LNIND 1993 SC 1167].
64
23rd edition, pp. 49. 50.
65
Cases in footnote 62.
66
PP. 365, 366, post.

67
Common Cause a Registered Society v. Union of India, AIR 1999 SC 2979, p. 3020 : (1999) 6 SCC 667
[LNIND 1999 SC 637].
68
See, text and note 46, p. 52.
69
[LNIND 1999 SC 637].
70
Ibid . p. 3020.
71
See , p. 211, post.

72
Sheila Kaur v. Shiv Sagar Tiwari , AIR 2002 SC 2868 : (2002) 10 SCC 667.
73
Common cause a registered Society v. Union of India , AIR 1999 SC 2979 : (1999) 6 SCC 667 [LNIND
1999 SC 637].
74
Page 36 of 45

75
Ibid., p. 999 (para 38).

76
Ibid., p. 993, 994 (paras 9 & 10).

77
Ibid., p. 1000 (para 43).

78
See text and note 44, (p. 52), 47, (p. 52), 51, (p. 54), 69, (p. 57).
79
(1994) 4 SCC 1 : JT 1994 (3) SC 492 : 1994 ACJ 902. Followed in a case of negligence of municipal
corporation in failing to discharge duty of care towards persons swimming in a swimming pool maintained
by the corporation resulting in death of a person by drowning : Popatlal Gokaldas Shah v. Ahmedabad
Municipal Corporation , AIR 2003 Guj 44 [LNIND 2002 GUJ 392]: (2004) 9 Scale 46.
80
(2004) 6 SCC 213, p. 216.
81
See, G.P. SINGH, Principles of Statutory Interpretation, 12th edition, p. 267.
82
See, footnote 58, p. 55.
83
See text and notes 86 to 90, infra .

84
Chairman Grid Corporation of Orissa Ltd. v. Shrimati Sukmani Das, AIR 1999 SC 3412 : (1999) 7 SCC 298
[LNIND 1999 SC 810] ; A.K. Singh v. Uttarakhand Jan Morcha, AIR 1999 SC 2193 p. 2195 : (1999) 4 SCC
476 [LNIND 1999 SC 544], Tamil Nadu Electricity Board v. Sumathi, AIR 2000 SC 1603 : (2000) 4 SCC 543
[LNIND 2000 SC 750].
85
Rabindra Nath Ghosal v. University of Calcutta , AIR 2002 SC 3560 : (2002) 7 SCC 478 [LNIND 2002 SC
616].
86
R. Gandhi v. Union of India , AIR 1989 Mad 205 [LNIND 1988 MAD 422]. For another case of communal
riot where the State was held liable to compensate the victims, see, M/s. Inder Puri General Store v. Union
of India , AIR 1992 J & K 11 (Article 21 applied). But, see, Nathulal Jain v. State of Rajasthan , AIR 1993
Raj 149 (A person not suffering any injury cannot maintain a public interest petition for riot victims).
87
Bhajan Kaur v. Delhi Administration, 1996 AIHC 5644 (Delhi).

88
Page 37 of 45
S.S. Ahluwalia v. Union of India, AIR 2001 SC 1309 : (2001) 4 SCC 452 [LNIND 2001 SC 700].
89
P. Gangadharan Pillai v. State of Kerala , AIR 1996 Ker 71 [LNIND 1995 KER 362].
90
See text and note 83, p. 59.
91
Osman v. U.K., (1998) 5 BHRC 293 (paras 115, 116) referred in Re Officer L , (2007) 4 All ER 965 para 19
pp. 975, 976 (H.L.); Van Colle v. Chief Constable of Hertfordshire Police, (2008) 3 All ER 977 paras 29 to
32 (H.L.); Re E (a child) , (2009) 1 All ER 487 paras 45 to 48 (H.L.). (This case also discusses the
sufficiency of the measures adopted by the authorities to prevent a riot like situation. The case is in the
context of Article 3 of the European Convention which provides that no one shall be subjected to torture or
to inhuman or degrading treatment or punishment which corresponds to Article 7 of the International
Covenant on Civil and Political Rights enforced in India by the Protection of Human Rights Act, 1993).
92
Smt. Kalawati v. State of Himachal Pradesh , AIR 1989 HP 5 [LNIND 1989 AP 42].
1
AIR 2005 Ori 36 [LNIND 2004 ORI 30]: 2006 ACJ 487.
2
(1993) Cr. LJ 3646 (Mad).
3
AIR 2001 Mad. 35 [LNIND 2000 MAD 885].

4
Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988, p. 1000 : (2000) 2 SCC 465 [LNIND 2000
SC 182].
5
5 Bom HCR App 1.
6
7
Shyam Sunder v. State of Rajasthan , AIR 1974 SC 890 : (1974) 1 SCC 690 [LNIND 1974 SC 95] : 1974
ACJ 296.
8
State of Rajasthan v. Vidyawati , AIR 1962 SC 933 : (1963) SCJ 307 : (1962) 2 SCA 362 [LNIND 1962 SC
46]. See , text and note 7, p. 47 .
9
Lucknow Development Authority v. M.K. Gupta , AIR 1994 SC 787, p. 796 : (1994) 1 SCC 243 [LNIND
1993 SC 946].
10
Page 38 of 45
Achutrao Haribhau Khodwa v. State of Maharashtra, AIR 1996 SC 2377 : (1996) 2 Scale 328 [LNIND 1996
SC 441], p. 334; State of Haryana v. Smt. Santra, AIR 2000 SC 1888 : (2000) 5 SCC 182 [LNIND 2000 SC
700] (Failure of sterilization operation in government hospital); The Joint Director of Health Services v.
Sahai, AIR 2000 Mad 305 [LNIND 2000 MAD 280]; Dr. M.K. Gourikutty v. M.K. Raghavan, 2001 Ker 398.
11
AIR 1974 SC 890 : (1974) 1 SCC 690 [LNIND 1974 SC 95], (696) : 1974 ACJ 296.
12
AIR 1960 SC 610 : 1960 SCJ 679 : (1960) 2 SCA 243.
13
AIR 1960 SC 675 : (1960) 1 SCA 596 : (1960) 2 SCR 942 [LNIND 1960 SC 32].
14
(1883) 9 AC 61.
15
Ad hoc Committee, The Indian Insurance Companies Association Pool v. Radhabai Babulal, 1976 ACJ 362,
at p. 366 : AIR 1976 MP 164 [LNIND 1976 MP 8]: 1976 Jab LJ 394 (Medical relief work undertaken by the
State through a primary health centre is not a traditional sovereign function), see further, Commandant of
74 Bn. B.S.F. v. Pankajini Kundu, 1984 ACJ 660 (at p. 663) : AIR 1984 Cal 405 [LNIND 1984 CAL 202]:
(1985) 1 TAC 126, State of U.P. v. Hindustan Lever ltd., AIR 1972 All 486 : 1972 All LJ 501 ; N. Nagendra
Rao & Co. v. The State of Andhra Pradesh , AIR 1994 SC 2663 : JT (1994) 5 SC 572, p. 598 : (1994) 6
SCC 205 [LNIND 1994 SC 789] ; Chief Conservator of Forests v. Jagannath Maruti Kondhare, AIR 1996
SC 2898; Agriculture Produce Market Committee v. Ashok Harikuni, AIR 2000 SC 3116, p. 3125 : (2000) 8
SCC 61 [LNIND 2000 SC 1293] (Defence of the country, raising armed foreces, making peace or war,
foreign affairs, power to acquire and retain territory).
16
Ibid. In Secretary of State v. Cockcraft , AIR 1915 Mad 993 : 27 IC 723 : ILR 39 Mad 352; and
Krishnamurthy v. State of Andhra Pradesh , (1960) 2 And WR 502 : AIR 1961 AP 283 [LNIND 1960 AP
200]: 1960 Andh LT 1053 [LNIND 1960 AP 200], it was held that maintenance of a highway was a
sovereign function and so the Government was not liable for negligence of its servants in repairing or
maintaining a highway or a culvert. These cases require reconsideration as maintenance of a highway
cannot be called a traditional sovereign function. See further title 4A. Highway Authority, pp. 40, 41, supra.
17
(1984) ACJ 559 : (1984) 2 TAC 308 : (1985) 1 ACC 96 : AIR 1986 SC 1199 overruling (1984) ACJ 401
(Punjab and Haryana) : (1964) 86 Pun LR 143. The Full Bench decision of the Punjab and Haryana High
Court in Bakshi Amrik Singh v. The Union of India, (1974) ACJ 105 : ILR (1973) 1 Punj 163, which was the
basis for deciding 1984 ACJ 401 must also be taken to be overruled. See further, the following cases where
immunity was rightly negatived : Union of India v. Savita Sharma , AIR 1979 J &K 6 : 1979 ACJ 1 : 1979
TAC 54; Satya Wati Devi v. Union of India , AIR 1967 Delhi 98 [LNIND 1967 DEL 6]: (1968) 69 Pun LR (D)
125 : 1968 ACJ 119; Nandram Heeralal v. Union of India , AIR 1978 MP 209 : 1978 ACJ 215 : 1978 TAC
289; Iqbal Kaur v. Chief of Army Staff , AIR 1978 All 417 : 1978 All LJ 654 : 1978 All WC 559 ; Union of
India v. Smt. Jatto , AIR 1962 Punjab 315 : (1962) 64 Pun LR 318 : ILR (1962) 1 Punj 708 ; Union of India
v. Sugrabai , AIR 1969 Bom 13 [LNIND 1967 BOM 114]: ILR (1968) Bom 998 [LNIND 1967 BOM 114] : 70
Bom LR 212; Union of India v. Bhagwati Prasad Misra , AIR 1957 MP 159 [LNIND 1957 MP 109]: 1957
Jab LJ 765 : ILR (1957) MP 43; Rooplal v. Union of India , AIR 1972 J & K 22; Union of India v. Abdul
Rehman , AIR 1981 J & K 60 : 1982 Srinagar LJ 17 : 1981 ACJ 348 : 1981 Kash LJ 279.
Page 39 of 45
18
Union of India v. Pushpa Thakur, (1984) ACJ 401 (p. 403) : (1984) 86 Pun LR 143.
19
Union of India v. Pushpa Thakur, (1984) ACJ 401, p. 404 : (1984) 86 Pun LR 143.
20
(1984) ACJ 559 (SC) : (1984) 2 TAC 308 : (1985) 1 ACC 76. Followed in Usha Agarwal v. Union of India,
1985 ACJ 834 : AIR 1985 (P&H) 279 : 1985 (2) 88 Pun LR 197.
21
Groves v. Commonwealth, (1982) 41 ALR 193.

22
AIR 1965 SC 1039 : (1965) 2 Cri LJ 144 [LNIND 1964 SC 245] : (1965) 1 SCWR 955 : (1965) 1 SCR 375
[LNIND 1964 SC 245].
23
For example, see, Union of India v. Abdul Rehman , AIR 1981 J & K 60 : 1982 Srinagar LJ 17 : (1981) ACJ
348 : 1981 Kash LJ 279; Commandant of 74 Bn. B.S.F. v. Pankajini Kundu, (1984) ACJ 660 (Calcutta) :
AIR 1984 Cal 405 [LNIND 1984 CAL 202]: (1985) 1 TAC 126.
24
State of Madhya Pradesh v. Chirojilal , AIR 1981 MP 65 [LNIND 1980 MP 81]: 1981 Jab LJ 351; The
reasoning is that the function of the State to regulate processions is delegated to the police by Section 30 of
the Police Act and the function to maintain Law and Order, including quelling of riot, is delegated to the
authorities specified by section 144, Cr.P.C. These functions cannot be performed by private individuals.
They are the powers exercisable by the State or its delegates only and by their very nature these functions
are to be regarded as ‘Sovereign functions’ of the State.
25
State of Orissa v. Padmalochan , AIR 1975 Ori. 41 [LNIND 1974 ORI 20]: ILR (1974) Cut 103.
26
AIR 2005 M.P. 66 .
27
28
(1868-69) 5 Bom HCR, Appendix 1, p. 1 at p. 14.
29
Govt. of India v. Jeevraj Alva , AIR 1970 Mysore 13 : 1970 ACJ 221 : (1969) 1 Mys LJ 244.
30
Text and notes 17 to 24, pp. 62, 64, supra .

32
Page 40 of 45
State of U.P. v. Hindustan Lever Ltd ., AIR 1972 All 486, (p. 491) : 1972 All LJ 501 (A deposit made on
behalf the plaintiffs in a Government sub-treasury was not credited to their account as it was embezzled by
the treasurer and the accountant of the sub-treasury. In a suit by the plaintiffs it was held that even
assuming that the treasurer and the accountant committed the wrong in the course of discharge of statutory
functions (under rules made by virtue ofs. 151, Government of India Act, 1935), the State was liable as
running a sub-treasury was in the nature of a banking business and did not pertain to the traditional
sovereign activity.)
33
Kasturilal Ralia Ram Jain v. State of U.P ., AIR 1965 SC 1039, p. 1946 : (1965) 2 Cri LJ 144 [LNIND 1964
SC 245] : (1965) 1 SCWR 955 : “The question to ask is: was the tortious act committed by the public
servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of
the sovereign power of the State to such public servant.”
34
AIR 1994 SC 2663 : JT 1994 (5) SC 572 [LNIND 1994 SC 789]: (1994) 6 SCC 205 [LNIND 1994 SC 789].
35
Ibid, p. 600.
36
State of U.P. v. Tulsi Ram , AIR 1971 All 162 : 1970 All Cri R 429 : 1970 All WR (HC) 160.
37
Venkappa v. Devamma , (1956) Mad 1381.

38
Mersey Docks Trustees v. Gibbs , (1866) LR 1 HL 93, p. 124.

39
Geddis v. Proprietors of Bann Reservoir, (1873) 3 AC 430 (HL), pp. 455-456 (LORD BLACKBURN) referred
to in Home Office v. Dorset Yacht Co ., (1970) 2 All ER 294 : (1970) AC 1004 (HL). Luncknow Development
Authority v. M.K. Gupta , AIR 1994 SC 787 : (1994) 1 SCC 243 [LNIND 1993 SC 946].
40
Home Office v. Dorset Yacht Co. , (1970) 2 All ER 294 : (1970) AC 1004 (HL) (LORD REID).
41
Mighell v. Sultan of Johore, (1894) 1 QB 149; Duff Development Co. v. Kelantan Government, (1924) AC
797; The Christina, (1938) AC 485; The Arantzazu Mendi, (1939) AC 256.
42
De Habar v. The Queen of Portugal, (1851) 17 QB 171Wadsworth v. Queen of Spain , 20 LJQB 488;
Gladstone v. Ottoman Bank , (1863) 1 H & M 505.
43
Mighel v. Sultan of Johore, (1894) 1 QB 149.

44
Duke of Brunswick v. The King of Hanover (King ), (1848) 2 HLC 1.

Page 41 of 45
45
The Parlement Belge, (1880) 5 PD 197, 217.

46
Munden v. Brunswick, (1847) 10 QB 656.

47
Haile Selassie v. Cable and Wireless Ltd ., (1938) 1 Ch 545.

48
CHESHIRE, Private International Law, 6th edition, page 89, Footnote 2.
49
(1976) 1 All ER 78 (PC).
50
Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria , (1977) 1 All ER 881, pp. 891, 892 : 1977 QB
529 : (1977) 2 WLR 356 (CA).
51
(1983) AC 244 (HL); Holland v. Lampen Wolfe, (2000) 3 All ER 833, p. 844 (HL).
52
Kuwait Airways Corp. v. Iraqi Airways Co ., (1995) 3 All ER 694 : (1955) 1 WLR 1147 (HL).
53
Holland v. Lampen Wolfe, (2000) 3 All ER 833, p. 844 : (2000) 1 WLR 1573 (HL).
54
Littrell v. United States of America , (1994) 4 All ER 203 : (1995) 1 WLR 82 : (1993) 137 SJ L.B. 278 (CA).
55
Holland v. Lampen Wolfe, supra , p. 843.

56
Ibid., pp. 847, 848.

57
Jones v. Minister of Interior (Kingdon of Saudi Arabia), (2005) 2 WLR 808. For comments on this case see
(2005) 121 Law Quarterly Review, pp. 353-359.
58
Maclaine Watson & Co. Ltd. v. Department of Trade & Industrty , (1989) 3 All ER 523 (HL).
59
Ibid.
60
Ibid. Regarding United Nations, see A.G. Nissan , (1969) 1 All ER 629 (HL), p. 647. For reparation of the
injuries suffered in the service of United Nations, see, (1949) ICJR 174.
61
Page 42 of 45
Section 86,Code of Civil Procedure, 1908.

62
Veb Deautfracht Seereederei Rostock (D.S.P. Lines) a Department of the German Democratic Republic v.
New Central Jute Mills Co. Ltd ., AIR 1994 SC 516 : (1994) 1 SCC 282. See further , Arab Republic of
Egypt v. Gamal-Eldin , (1996) 2 All ER 237 (Activity of organising medical relief for its nationals is not
commercial activity and is within state immunity).
63
Harbhan Singh Dhalla v. Union of India , AIR 1987 SC 9 : 1986 JT 765 : (1986) 4 SCC 678 [LNIND 1986
SC 420] : (1986) 4 Supreme 258; Shanti Prasad Agarwalla v. Union of India , AIR 1991 SC 814 : 1991
Supp (2) SCC 296.
64
See, text and notes 62 and 63, supra .

65
The Indian Majority Act, 1875.
66
S. 82, Indian Penal Code.
67
S. 83, Indian Penal Code.
68
S. 11, Indian Contract Act, 1872;Mohori Bibee Dharumdas Ghose , (1903) 1 ILR 30 Cal 539 (PC).
69
Montreal Tramways v. Leveille , (1933) 4 DLR 377; Pinchin v. Santam Ins ., 1963 (2) SAF 254 ; Watt v.
Rama, (1972) VR 353 ; Duval v. Seguin , (1973) 40 DLR 3 d 666 (Ont. CA); B. v. Islington Health Authority,
(1991) 2 WLR 501 (QBD); De Martell v. Merton and Sutton Health Authority , (1992) 3 All ER 820 : (1991) 1
All ER 825 (QBD).
70
The George and Richard , (1871) LR 3 Ad & Ecc 466.

71
Williams v. Ocean Coal, (1907) 2 KB 422 (CA).

72
Villar v. Gilbey, (1907) AC 139. See further,section 99 (i) of the Indian Succession Act, 1925.
73
SALMOND, Jurisprudence, 12th edition, p. 301; FLEMING, Torts, 6th edition, pp. 153, 154.
74
Even before the Act, many cases were decided on the footing that such a liability is recognised by the law.
For example see Distillers Co. (Biochemicals) Ltd. v. Thompson , (1971) 1 All ER 694 : (1971) 2 WLR 441
(HL); McKay v. Essex Area Health Authority , (1982) 2 All ER 771, p. 779: (1982) 2 WLR 890 : 1982 QB
1166 (CA).
75
Page 43 of 45
McKay v. Essex Area Health Authority , (1982) 2 All ER 771 : (1982) 2 WLR 890 : 1982 QB 1166 (CA).
76
Emeh v. Kensington and Chelsea and Westminster Area Health Authority , (1984) 3 All ER 1044 : 1985 QB
1012 (CA). See further pp. 234-236, post.
77
AIR 1992 SC 248, p. 311 : (1991) 4 SCC 584. According to a report in M.P. Chronicle of June 30, 1995, 30
children were later found suffering from congenital heart diseases because of toxic effect of the gas on their
mothers.
78
S. Said-Ud-Din v. Court of Welfare Commissioner , (1996) 3 Scale (SP) 28 : (1997) 11 SCC 460.
79
Tillander v. Gosselin, (1967) ACJ 306 (High Court of Ontario, Canada).

80
(1966) 115 CLR 199, (1968) ACJ 273 (High Court, Australia).
81
(1968) ACJ 273, p. 296. See further, American restatement of the Law of Torts para 283 referred to at p.
294 of the report.
82
(1998) 1 All ER 920 (CA).
83
Ibid, p. 924.
84
Delhi Transport Corporation v. Kumari Lalita, (1983) ACJ 253 (p. 256) : AIR 1982 Del 558 [LNIND 1982
DEL 123]: (1986) 59 Com Cas 162. See further, Amritsar Transport Co. v. Seravan Kumar, (1969) ACJ 82
(Punjab) : 1969 Cur LJ 53, Matias Costa v. Roque Augustinno Joeinto, (1976) ACJ 92 (Goa) : AIR 1976
Goa 1 : 1976 TAC 262; Yachak v. Oliver Blais Co. Ltd., (1949) AC 386; Gaugh v. Throne, (1966) 1 WLR
1387 (CA) : 1967 ACJ 183; Jones v. Lawrence , (1969) 3 All ER 267 : 1970 ACJ 358. See further Chapter
XIX, title 7(B).
85
Swaroopkishore v. Gowardhandas , (1955) MB 355.

86
Hodsman v. Grissel, Noy ., 129; Defries v. Davis , (1835) 1 Bing NC 692.

87
Bacon.
88
Mills v. Graham , (1804) 1 B & P (NR) 140.

89
In re, Lush's Trusts , (1869) LR 4 Ch App 591.

90
Page 44 of 45
Bristow v. Eastman , (1794) Peake NPC 291, (223).

1
Sadik Ali Khan v. Jaikishore , AIR 1928 PC 152 (There is no estoppel against a minor).
2
Leslie (R) Ltd. v. Sheill, (1914) 3 KB 607 : 111 LT 306; Dhannumal v. Ram Chunder Ghose , (1890) 24 Cal
265.
3
Leslie (R) Ltd. v. Sheill, (1914) 3 KB 607 : 111 LT 306; See also, Ballett v. Mingay, (1943) KB 281 : 168 LT
34 : (1943) 1 All ER 143. Where an infant was successfully sued in detinue for the non-return of a
microphone and amplifier which he had hired from the plaintiff and improperly parted with it to a friend.
4
Leslie (R) Ltd. v. Sheill , supra , p. 618.

5
See, cases in note 3, supra .

6
Jennings v. Rundall , (1799) 8 TR 335 : 4 R.R. 680.

7
Motor House Company Limited v. Charlie Ba Ket, (1928) 6 Ran 763.

8
Burnard v. Haggis, (1863) 14 CBNS 45 : 8 LT 320.

9
Per LORD KENYON in Jennings v. Rundall , (1799) 8 TR 335, 336 : 4 R.R. 680.
10
Vellapandiv v. Manicka Thai, (1970) ACJ 65 (Mad).

11
Gibson v. O'Keeney, (1928) NI 66.

12
Bebee v. Sales, (1916) 32 TLR 413; Newton v. Edgerley , (1959) 3 All ER 337, (1959) 1 WLR 1031.
Contrast Gorely v. Codd, (1967) 1 WLR 19 : (1966) 3 All ER 891.
13
Section 84,Indian Penal Code;M'Naghten's Case (1843-60) All ER (Rep) 229.

14
Tindale v. Tindale , (1950) 4 DLR 263. See , Chapter 2, Title 2.

15
Morris v. Marsden , (1952) 1 All ER 925 : (1952) 1 T.L.R. 941; Phillips v. Soloway , (1957) 6 DLR (2d) 570;
Beals v. Hayword , (1960) NZLR 131; Squittieri v. De Santis , (1976) 75 DLR (3d) 629.
Page 45 of 45
16
Emmens v. Pottle, (1885) 16 QBD 354, p. 356.

17
Morris v. Marsden , (1952) 1 All ER 925 : (1952) 1 T.L.R. 941.

18
SALMOND and HEUSTON, Torts, (1992), 20th edition, p. 430.
19
Roberts v. Ramsbottom , (1980) 1 All ER 7, p. 14 : (1980) 1 WLR 823 : (1980) R.T.R. 261; Waugh v. James
K. Allen Ltd. , (1964) 2 Lloyd's Rep. 1, p. 2.
20
Buckley and Toranto Transportation Commission v. Smith Transport Ltd. , (1946) 4 DLR 721 (Ontario CA).
21
Roberts v. Ramsbottam , (1980) 1 All ER 7 : (1980) 1 WLR 823 : 1980 R.T.R. 261.
End of Document
CHAPTER IV FOREIGN TORTS
TORTS committed abroad 1 have always been triable in English Courts, provided they expressly fulfilled the
following conditions:—
(1) The wrong must be of a kind which would have been actionable as a tort had it been done in England.
(2) The wrong must have also been actionable by the law of the country where it was committed. 2 But a
particular issue between the parties may be governed by the law of the country which, in respect to that
issue, has the most significant relationship with the occurrence and the parties. 3
The Court has no jurisdiction to entertain an action to recover damages for a trespass to land situated abroad. 4
No action will lie in England for an act committed in a foreign country if it either was lawful by the law of that country
at the time of its commission, 5 or was excusable, or was subsequently legitimatized by virtue of ex post facto
legislation in such country. 6 If a foreign law, e.g. , a law prescribing period of limitation, merely affects the remedy
or procedure for enforcing the obligation, it would not be a bar to an action in England; but if the foreign law
extinguishes the right it would be a bar. 7
The act complained of should be actionable both by the law of England and by the law of the country where it was
committed. 8 But it is no defence to an action for a tort committed in a foreign country that by the law of that
country no action lies till the defendant has been dealt with criminally, for that is a mere matter of procedure. 9
Quantification of damages for actionable heads of claim is a matter of procedure or remedy and is governed by the
law of the forum where the action is brought. 10
Action for assault against ex-Governor.— An action was brought for assault and false imprisonment against the ex-
Governor of Jamaica, the trespass complained of having been committed during a rebellion in that island. The
defendant relied on an Act of Indemnity which the Jamaica Legislature had passed. It was held that legislation,
though ex post facto , cured the wrongfulness of his acts and prevented the plaintiffs from recovering. 11
An action was brought against the Governor of Minorca, named Mostyn, who apparently was of opinion that he was
entitled to play the part of an absolute and irresponsible despot on his small stage. One of his subjects, however,
one Fabrigas did not coincide with him in this view, and he rendered himself so obnoxious that the Governor, after
keeping him imprisoned for a week, banished him to Spain. For this arbitrary treatment Fabrigas brought an action
at Westminster. Mostyn objected that, as the alleged trespass and false imprisonment had taken place in Minorca,
the action could not be brought in England. But it was held that, as the cause of action was of a transitory and not of
a local nature, it could, and 3,000 were given as damages to Fabrigas. 12
The plaintiff was injured in a motor accident in Malta caused by the negligence of the defendant. Both the plaintiff
and the defendant were British nationals, who were domiciled and normally resident in England. The damages
recoverable by Maltese law would not have included compensation for pain, suffering and loss of amenities of life
Page 2 of 3
as under English law, but only for his expenses and money loss. It was held that the damages should be assessed
in accordance with the English law. 13
Tort Committed in Saudi Arabia and Suit in Hongkong.— The tort was actionable in both the countries but the
insurers could not sue, according to Hongkong law i.e., lexfori , the tort feasor before they had paid the injured i.e.,
the insured but they could do so, according to lex loci delicti i.e., the law of Saudi Arabia and they were allowed to
exclude the lexfori in favour of the lex loci delicti . 14
Collision-Liability under Belgian but not under English law.— By the negligence of a pilot, compulsorily taken on
board, the Halley , a British steamer in Belgian waters, ran down a Norwegian vessel. By the Belgian law the
Britisher was liable, but by the English law the fact that the pilot was on board, and that the collision was due to his
negligence, exempted her. It was held that, under those circumstances no action lay against her in England. 15
Seizure of goods under Muscat law.— British goods on board a British ship within the territorial waters of Muscat
were seized by an officer of the British Navy, under the authority of a proclamation issued by the Sultan of Muscat.
It was held that the seizure having been shown to be lawful by the law of Muscat no action could be maintained in
England by the owner of the goods against the naval officer. 16
1
A tort may be held to be committed abroad if the wrongful act is committed abroad even though the
damage flowing from it is suffered in England. The entire events constituting the tort must be seen and the
situs of the tort must be fixed by asking the question where in substance the cause of action arose.
Distillers Co. (Bio-Chemicals) Ltd. v. Thompson , (1971) 1 All ER 694 : (1971) 2 WLR 441 (PC); Diamond v.
Bank of London & Montreal Ltd ., (1979) 1 All ER 561 : (1979) 2 WLR 228 : 1979 QB 333; Castree v. E. &
R. Squibb & Sons Ltd., (1980) 2 All ER 589 : (1980) 1 WLR 1248.
2
Chaplin v. Boys, (1971) AC 356 (HL); (1969) 2 All ER 1085 : (1969) 3 WLR 322 (HL); Metall, (1990) 1 QB
391 (CA), p. 446.
3
Dicey and Marris, Conflict of Laws, 11th edition, p. 1365, approved in Johnson v. Coventry Churchill
International Ltd., (1992) 3 All ER 14, p. 17; Red Sea Insurance Co. Ltd. v. Bouygues SA , (1994) 3 All ER
749 : (1995) 1 AC 190 : (1994) 3 WLR 926 (PC).
4
British South Africa Co. v. Companhia de Mocambique, (1893) AC 602; Hesperides Hotels Ltd., (1979) AC
508; (1978) 1 All ER 277 : (1977) 3 WLR 656.
5
Blad v. Bamfield , (1674) 3 Swans 604.

6
Phillips v. Eyre, sup; The M. Moxham, (1876) 1 PD 107.

7
Phillips v. Eyre , (1870) LR 6 QB 1 (29). See also, Black Clawson International Ltd. v. Papier Werke
Waldhof Aschaffenberg A.G., (1975) AC 591 (HL); (1975) 1 All ER 810 (HL).
8
Metall, (1990) 1 QB 391, p. 446 : (1989) 3 WLR 563 : (1989) 3 All ER 14 (CA).
9
Page 3 of 3
Scott v. Seymour, (Lord), (1862) 1 H & C 219.

10
Harding v. Wealands, (2006) 4 ALL ER 1 (H.L.).

11
Phillips v. Eyre , (1870) LR 6 QB 1.

12
Mostyn v. Fabrigas , (1774) 1 Cowp 161 : (1968) 2 QB 1.

13
Boys v. Chaplin , (1968) 1 All ER 283. This decision was upheld in appeal; (1969) 2 All ER 1085 (HL).
14
Red Sea Insurance Co. Ltd. v. Bouygues SA , (1994) 3 All ER 749 : (1995) 1 AC 190 : (1994) 3 WLR 926
(PC).
15
The “ Halley ” (1868) LR 2 PC 193.

16
Carr v. Fracis Times & Co ., (1902) AC 176 : 50 WR 257.
End of Document
CHAPTER V JUSTIFICATION OF TORTS
THERE are certain justifications which refer only to a particular wrong, or to a small class of wrongs. These are
treated in their proper places. But there are other justifications which are common to all kinds of wrongs, and to
prevent the repetition of these under every wrong they are collectively treated here. Thus, in this Chapter are
discussed, what SIR FREDERICK POLLOCK 1 calls “the rules of immunity which limit the rules of liability. There
are various conditions which, when present, will prevent an act from being wrongful which in their absence would be
a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms
to be wrongful, it is assumed that no such qualifying condition exists”. These justifications from civil liability for acts
prima facie wrongful are based principally upon public grounds.
1. ACTS OF STATE
1(A) English Law
In accordance with British Jurisprudence no member of the Executive can interfere with the liberty or property of a
British subject except on the condition that he can support the legality of his action before a Court of justice. 2 And
the same principle applies to a friendly alien resident in British territory. 3 But when the person or the property of a
person who is not a British subject and who is not residing in British territory is injured by an act “done by any
representative of Her Majesty's authority, civil or military, and which is either previously sanctioned or subsequently
ratified by Her Majesty”, the person injured has no remedy for such an act is an act of State. 4 An act of State is
outside the ordinary law; it is essentially an exercise of sovereign power as a matter of policy or political
expediency. Its sanction is not that of law, but that of sovereign power, and municipal Courts must accept it without
question. Ratification by the sovereign power of the act of one of its officers is equivalent to a prior command and
may render such act an act of State. 5 In the oft quoted case of Buron v. Denman , 6 the defendant, a captain in
the Royal Navy, released the slaves and set fire to the slave barracoons of the plaintiff, a Spaniard, on the West
coast of Africa, outside British dominions. The defendant originally had no authority but his act was ratified by the
Crown. It was held that the plaintiff had no remedy against the defendant. As between the sovereign and his
subjects there can be no such thing as an act of State. 7 In Eshugbay v. Officer Administering the Government of
Nigeria , 8 the Governor of Lagos, sanctioned the deposition of the appellant from the office of “Etaka” and
deported him. On a challenge to the validity of the order by the appellant, one of the contentions raised was that it
was an act of State. In negativing this contention the Privy Council (LORD ATKIN) observed : “The phrase (Act of
State) is capable of being misunderstood. As applied to an act of the sovereign power directed against another
sovereign power or the subjects of another sovereign power not owing temporary allegiance, in pursuance of
sovereign rights of waging war, or maintaining peace on the high seas or abroad, it may give rise to no legal
remedy. But as applied to the acts of the executive, directed to subjects within the territorial jurisdiction, it has no
special meaning, and can give no immunity from the jurisdiction of the court to inquire into the legality of the act.”
The position is the same even if the wrongful act is done against a subject outside British territory 9 or against a
friendly alien within British territory 10 for a subject wherever he may be owed allegiance to the Crown and a
friendly alien within British territory owes temporary allegiance to the Crown. In Johnstone v. Pedlar , an Irishman
who became a naturalised American citizen came to Ireland and took part in rebellion and was deported. He again
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came to Ireland and was arrested for illegal drilling, and money found on his person was confiscated. In an action
for wrongful detention of the money or in the alternative for damages for conversion, the defendant raised the plea
of act of State which was negatived by the House of Lords on the ground that at the time of confiscation of the
money, the plaintiff, though an American citizen, owed local allegiance to the Crown because of his residence in
Ireland which conferred on him local rights. Some obiter dicta in this case 11 favour the view that act of State is no
defence unless the act is done outside the British territory. But it has been held that deportation from or detention of
an alien enemy in England are acts of State. 12
Although an act of State cannot be challenged, or interfered with by municipal Courts, its intention and effect may
sometimes be to modify and create rights as between the Government and individuals who are about to become
subjects of the Government, and in such cases the rights arising therefrom may be capable of being adjudicated
upon by municipal Courts. 13
1(B) Indian Law
The English law relating to Act of State was followed in India and has been followed after the Constitution as it
became a part of the common law of India continued by the Constitution as existing law. 14 As held by the
Supreme Court “an act of State is not available against a citizen”; it is “a sovereign act which is neither grounded on
law nor does it pretend to be so”; it is “a catastrophic change constituting a new departure”; “in civil commotion, or
even in war or peace, the State cannot act catastrophically outside the ordinary law and there is legal remedy for its
wrongful acts against its own subjects or even a friendly alien within the State”. 15 Acts of the executive
Government in the name of the President in the normal course of administration (e.g. allotment of petrol outlets
from discretionary quota of a minister) are not acts of State and are open to judicial scrutiny and their authority,
validity and correctness can be examined by courts. 16
Acts of State are directed against another sovereign State or its sovereign personally or its subjects and, being
based on policy considerations and not on law administered by the municipal Courts, they are not justiciable. In
Secretary of State for India in Council v. Kamachee Boye Saheba , 17 the Tanjore Raj, whichwas an independent
State, and its properties were taken possession of by the East India Company on behalf of the Crown declaring that
the Raj lapsed to the British Government on the Raja dying issueless. In a suit filed by the widow, the Privy Council
held that this was an act of State and was not open to any challenge. The question that LORD KINGSDOWN, in
delivering the judgment of the Privy Council, posed and answered in favour of the Crown was in these words :
“What was the real character of the act done in this case? Was it a seizure by arbitrary power on behalf of the
Crown of Great Britain of the dominions and property of a neighbouring State, an act not affecting to justify itself on
grounds of Municipal law? Or was it, in whole or in part, a possession taken by the Crown under colour of legal title
of the property of the late Raja of Tanjore in trust for those who, by law, might be entitled to it on the death of the
last possessor? If it were the latter the defence set up, of course, has no foundation”. 18 But as it was the former,
i.e., seizure by arbitrary power, the defence of act of State succeeded. It was held by the Privy Council in another
case that an order of the Governor General in Council deposing the Ruler of an Indian State was an act of State
and its validity was not open to question in a court of law. 19 The Privy Council had also ruled that the acquisition
of territory belonging to another State, whatever be the mode of acquisition, is an act of State and the inhabitants of
that territory can avail of only such rights as against the new sovereign which the new sovereign has recognised. 20
In the famous words of LORD DUNEDIN : “When a territory is acquired by a sovereign State for the first time that is
an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by
cession following a treaty, it may be by occupation of territory hitherto unoccupied by a recognised Ruler. In all
cases, the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by
the new sovereign any such rights as that sovereign has, through his officers, recognised. Such rights as he had
under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain
inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in
the municipal Courts.” 21 It was on this basis that the Privy Council held in Asrar Ahmad v. Durgah Committee,
Ajmer, 22 that when a person claims a hereditary right of his family to the office of Mutwalli in respect of a religious
endowment situated in the territories ceded by a Ruler of an Indian State to the British Government, then in the
absence of an express or implied recognition of such right by the British Government, he cannot rely upon any
hereditary or other grant made before the cession of territory. The principle that there can be no act of State against
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a subject was recognised by the Privy Council in Forester v. Secretary of State . 23 In that case the challenge was
to the resumption of the estate of Begum Samru on the allegation that the tenure had been determined and to the
seizure of arms and military stores of the Begum. It was held by the Privy Council that the action of the Government
did not amount to act of State. The suit in respect of the land, however, failed as the appellant failed to establish his
title but the suit relating to the arms and store succeeded and a decree was passed declaring that the appellants
were entitled to recover from the Government the value of the arms and military stores seized. Incidentally, this
claim could only be a claim in torts for conversion of the goods seized.
The integration of Indian States, their merger with the Dominion of India and annexation of Goa, Daman and Diu by
conquest, gave rise to many cases in the post Constitution period relating to the rights of the people residing in
these territories as against the Government of India. The Supreme Court in dealing with these cases followed the
principles laid down by the Privy Council in the cases already noticed. The points that emerge from the decisions of
the Supreme Court 24 can be summed up as follows : (1) The taking over of sovereign powers by a State in respect
of new territory, be it by conquest, annexation or cession following upon a treaty, is an act of State; (2) the taking
over of the full sovereign power may be spread over a number of years as a result of historical process; (3)
sovereign power including the right to legislate for that territory may be acquired by a legislation in the nature of
Foreign Jurisdiction Act without the territory itself merging in the new State; (4) the rights of the residents of that
territory against the old State come to an end and the obligations of the old State do not pass on to the new State;
(5) the residents of that territory can only enforce such rights against the new State which it has expressly or
impliedly recognised or conferred by executive action or legislation and they cannot enforce a provision in the treaty
of cession that their rights will not be affected by the cession and will be respected by the new State; (6) the laws in
force in that territory before annexation or cession continue until abrogated by the new State but this by itself does
not confer any right to the residents of that territory to enforce the rights accrued under those laws before
annexation or cession against the new State; (7) the rights of the residents of that territory which are recognised or
conferred by the new State after annexation or cession cannot be abrogated by the new State by justifying the
abrogation as an act of State for there can be no act of State against a subject; (8) Artilce 372 of the Constitution
continues only such orders of the Rulers of erstwhile Indian States which are legislative in nature.
The legal position that the act of State in the taking over of sovereignty of a new territory may continue for a number
of years is illustrated by the historical process by which the Indian State of Junagadh was annexed to the Dominion
of India. Unlike the Rulers of other Indian States, the Nawab of Junagadh did not accede to the Dominion of India
after the coming into force of the Indian Independence Act, 1947. The Nawab fled to Pakistan leaving the State in a
state of chaos. The Administration of Junagadh was taken over by the Government of India in November, 1947, on
the request of the Nawab's Council and an Administrator was appointed for administering the State. The
Administrator cancelled certain grants made by the Nawab and dispossessed the persons who were in possession
by virtue of the grants. The territories comprised in the State of Junagadh were, thereafter, in January, 1949,
merged with the United State of Saurashtra. In a suit by the persons dispossessed by the ordes of the
Administrator, the Supreme Court 25 held that the said orders arose out of and during the act of State by which the
territories of Junagadh were annexed by the Dominion of India and they could not be challenged in a court of law. It
was further held that though de facto control of Junagadh was taken over in November, 1947, the de jure
resumption of sovereignty took place in January, 1949, when Junagadh was merged with Saurashtra and,
therefore, the act of State did not terminate till that time. 26
The cases of Pema Chibbar v. Union of India 27 and Vinod Kumar Shantilal Gosalia v. Gangadhar Narsinghdas
Agarwal 28 illustrate the application of the principle of act of State when a new territory is acquired by conquest.
The Portugese territories of Goa, Daman and Diu were annexed by the Government of India by conquest on 20th
December, 1961. The President of India, on 5th March, 1962, passed an Ordinance by which the laws in force in
the territories of Goa, Daman and Diu were continued until amended or repealed by a competent legislature. The
Ordinance was later replaced by an Act which was given retrospective effect from 5th March, 1962. In Pema
Chibbar's case, certain import licences granted under the Portugese law between October 9 and December 4,
1961, were not recognised by the Military Governor in a proclamation issued on December 30, 1961. In Vinod
Kumar Shantilal's case the right to get mining leases under the Portugese law were not recognised and applications
made for mining leases according to that law in 1959 were rejected by the officers of the Government of India. It
was held in both these cases that as the rights claimed in them were not recognised by the Government of India,
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they could not be enforced. It was also held that the Portugese laws were continued only from 5th March, 1962 and
there was an interregnum between December 20, 1961 and 5th March, 1962. It was further held that mere
continuance of the old laws did not amount to recognition by the Government of India of the rights acquired under
these laws before the conquest and annexation of the Portugese territory.
But after the residents of the old State have become subjects of the new State the act of State vanishes and they
cannot be deprived of the rights recognised or conferred by the new State except in accordance with law. This rule
will also apply to a sovereign of the old State who has become subject of the new State. It is on this basis that it
was held that an order derecognising all the rulers of Indian States passed in September, 1960, which could not be
supported under the Constitution or under any law was invalid. 29
2. JUDICIAL ACTS
2(A) English Law
Judge. —When a Judge acts within jurisdiction no action lies for acts done or words spoken by a Judge in the
exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the
honest exercise of his office. 30 This doctrine has been applied not only to the superior Courts, but also to Judges
of inferior Courts including the Court of a Coroner 31 and a Court-martial. 32 It is essential in all Courts that the
Judges who are appointed to administer the law should be permitted to administer it under the protection of the law
independently and freely, without favour and without fear. This provision of the law is not for the protection or
benefit of a malicious or corrupt Judge, but for the benefit of the public, whose interest it is that the Judges should
be at liberty to exercise their functions with independence and without fear of consequences. How could a Judge so
exercise his office if he were in daily and hourly fear of an action being brought against him, and of having the
question submitted to a jury whether a matter on which he had commented judicially was or was not relevant to the
case before him. 33 The public are deeply interested in this rule, which indeed exists for their benefit, and was
established in order to secure the independence of Judges, and prevent their being harassed by vexatious actions.
34 Being free from actions, he may be free in thought and independent in judgment. The principle behind the
common law rule of immunity of a Judge, whether of superior court or inferior court, from an action when he acts
within jurisdiction, although maliciously and contrary to good faith, has been stated to be that “if one judge in a
thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health
of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be
harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.” 35 This common law
rule originally did not apply to magistrates and they could be made liable in an “action on the case for a tort” for
acting within their jurisdiction maliciously and without reasonable and just cause but this form of action is now
obsolete and magistrates also enjoy the same immunity as judges while acting within their jurisdiction. 36 This is
now legislatively confirmed by section 108(2) of the Courts and Legal Services Act, 1990.
The rules of Common Law are different and not uniform when a judge acts outside his jurisdiction. “It is, of course,
clear that the holder of any judicial office, who acts in bad faith, doing what he knows he has no power to do, is
liable in damages.” 37 This applies for all judges including the judges of a superior court. 38 If a High Court Judge
or a judge of the court of appeal “does something demonstrably outside his jurisdiction” he may not be protected; to
be entitled to immunity he must have acted reasonably and in good faith in the belief that the act was within his
powers.” 39 It is also clear that if the act is non-judicial, “no immunity arises from the fact that the doer holds the
office of a judge, whether of a superior or of an inferior court.” 40 Subject to what has been stated above, a judge
of a superior court is entitled to protection from liability in damages in respect of what he had done while acting
judicially and under the honest belief that his act was within his jurisdiction, although what he had done was outside
his jurisdiction. 41 According to the view taken by the Court of Appeal the same protection is now available in law
to judges of the inferior courts including magistrates. 42 But the House of Lords 43 emphatically ruled that at least
magistrates do not have that protection when they act without jurisdiction or in excess of jurisdiction, although
Page 5 of 36
honestly and without any moral blame, and they can be made liable in actions for trespass to the person (unlawful
arrest or imprisonment) or trespass to goods (unlawful distress). But now by section 108(2) of the Courts and Legal
Services Act, 1990, bad faith must be proved for sustaining liability for acts done outside jurisdiction. The
expression “without jurisdiction or excess of jurisdiction” is not in this context given that meaning which it has
received in the context of certiorari , and even when an order of a magistrate has been quashed by issuance of a
writ of certiorari , it is not conclusive in an action for damages against the magistrate that he acted without
jurisdiction or in excess of jurisdiction. 44 For becoming liable for damages a magistrate acts without jurisdiction or
in excess of jurisdiction : (1) when he has no jurisdiction to entertain the proceedings, e.g., when he has no
jurisdiction over the person, the place or the subject- matter, i.e., the offence; 45 or (2) when he in the course of
hearing a case within his jurisdiction is guilty of some gross and obvious irregularity of procedure, e.g., when he
refuses to allow the defendant to give evidence, 46 or (3) when he after conducting the trial impeccably in a case
within his jurisdiction, passes an order or sentence against the defendant for which the conviction of the defendant
or other determination of the complaint against him does not provide a proper foundation in law; e.g. when he
passes a substantive sentence of imprisonment when the offence of which the defendant is convicted is one for
which imposition of fine is the substantive sentence and imprisonment can be ordered only in default of payment of
fine; or when he passes an order of detention of a young offender without informing him of his right to apply for legal
aid which is a mandatory requirement under a statutory provision. 47 But a magistrate does not act without
jurisdiction or in excess of jurisdiction when he commits an error (whether of law or fact) in deciding a collateral
issue on which his jurisdiction depends or when he convicts without evidence or when he commits an error of law,
even if it arose from a misconstruction of a statute, in reaching a finding of guilt. 48
Arbitrators.— It has been held that arbitrators whom the parties by consent have chosen to be their judges, shall
never be arraigned more than any other judges. 49 Arbitrators, if they act honestly, are not liable for errors in
judgment, or for negligence in the discharge of the duties entrusted to them; but they are liable if they have been
corrupt. 50 Some immunity is also conferred on a ‘quasi arbitrator’ who though not functioning under the Arbitration
Act, acts upon an agreement between the parties that his decision will be binding on them. 51
An officer executing a warrant or order of a court, which is apparently regular but which is in excess of jurisdiction of
the court issuing it, is protected if he did not know that it was wrong. 52 But if he arrests a person not named in the
warrant or seizes goods of a person not mentioned in the warrant, he is not protected even though his mistake is
honest. 53
2(B) Indian Law
The Judicial Officers Protection Act, 1850.— Under this Act no Judge, Magistrate, Justice of the Peace, Collector,
or other person acting judicially, can be sued in any Court for any act done by him in the discharge of his judicial
duty, whether or not within the limits of his jurisdiction, provided that he, at the time, in good faith, believed himself
to have jurisdiction to do the act complained of. Similarly, no officer of any Court or other person bound to execute
the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector, or other person acting
judicially, can be sued in any civil Court for the execution of any warrant or order, which he would be bound to
execute, if within the jurisdiction of the person issuing the same. 54
This Act protects judicial officers, acting judicially, and also officers acting under their orders. It does not protect
judicial officers from being sued in a civil Court except in respect of acts done by them in the discharge of their
judicial functions 55 but not ministerial. 56
The Act enacts the common law rule of immunity of Judges and is somewhat wider in that unlike the common law
rule it makes no distinction between judges of Superior Courts, Judges of inferior Courts and Magistrates. Every
person acting judicially, whether high or low, has the same protection. The principle behind the Act is the same that
it is in public interest that a person holding a judicial office should be in a position to discharge his functions with
independence and without fear of consequences. The Act came up for construction before the Supreme Court in
Anwar Hussain v. Ajay Kumar 57 and the following propositions follow from that case : (1) If an act done or ordered
to be done by a judicial officer in the discharge of his judicial duties is within the limits of his jurisdiction, he is
protected whether or not he has discharged those duties erroneously, irregularly, or even illegally, or without
Page 6 of 36
believing in good faith that he had jurisdiction to do the act complained of; (2) If such an act is without the limits of
the officer's jurisdiction, he is protected if, at the time of doing or ordering it, he, in good faith, believed himself to
have jurisdiction to order it; (3) The expression “jurisdiction” in S. 1 of the Act does not mean the power to do or
order the act impugned, but generally the authority of the judicial officer to act in the matter; (4) The Act protects a
judicial officer only when he is acting in his judicial capacity and not in any other capacity; and (5) if a judicial officer
arrests a person ‘recklessly and maliciously’ not in discharge of the duties of his office as a Magistrate but on the
ground that he acted under the direction of his superior officer, he can be said to be acting in an executive capacity
and not in a judicial capacity and, therefore, he is not protected under the Act.
If a Magistrate fails to act reasonably, carefully, and circumspectly in the exercise of his duties, or in other words,
acts recklessly in contravention of obvious or well known rules of law or procedure, and if, thereby, he does that for
which he has not any legal authority, he cannot be permitted to say that at the time he thus acted, he, in good faith,
believed himself to have jurisdiction to do the act complained of. 58 Wilful abuse of his authority by a Judge, that is,
wilfully acting beyond his jurisdiction, is a good cause of action by the party who is injured. 59 Where a Magistrate
negligently signs an arrest warrant against acquitted persons, he is not protected by S. 1 of the Judicial Officers
Protection Act.60
The words “or other person acting judicially” as they occur in Section 1 are wide words and the section will
obviously cover not merely judicial officers and revenue officers manning ordinary civil, criminal, and revenue
Courts, but also persons functioning as Tribunals or authorities which are invested with the judicial power of the
State to determine disputes which are entrusted to their special jurisdiction. 61 For example, the Registrar while
deciding disputes under Cooperative Societies Act, the authority invested with jurisdiction under the Payment of
Wages Act, 1936, the Commissioner under the Workmen's Compensation Act, 1923, the Claims Tribunal under the
Motor Vehicles Act, 1939, will all come under the protective provisions of the Act.
The Judges (Protection) Act, 1985:— The Act was enacted by Parliament for “securing additional protection for
judges and others acting judicially.” Section 3 of the Act provides that “no court shall entertain or continue any civil
or criminal proceeding against any person who is or was a judge for any act, thing or word committed, done or
spoken by him when, or in the course of acting or purporting to act in the discharge of his official or judicial duty or
function.” The term “judge” is very widely defined to mean “not only every person who is officially designated as a
judge, but also every person (a) who is empowered by law to give in any legal proceeding a definitive judgment, or
a judgment which if not appealed against, would be definitive, or a judgment which if confirmed by some other
authority would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to
give such a judgment as is referred to in clause (a).” The Act confers a very wide protection which is not limited to
judicial functions but also covers official functions. The Act, as it is, completely debars any private person to file any
civil or criminal proceeding in a court against a judge even if he has acted outside his jurisdiction or authority and
with malice provided the act complained of was done “in the course of acting or purporting to act in the discharge of
his official or judicial duty or function.” The remedy of a private person in such cases against a judge is only to move
the Supreme Court, High Court or the Government to take suitable action against the judge for the protection
conferred by the Act does not, as expressly provided in section 3(2), “debar or affect in any manner, the power of
the Central Government or the State Government or the Supreme Court of India or any High Court or any other
authority under any law for the time being in force to take such action (whether by way of civil, criminal or
departmental proceedings or otherwise) against any person who is or was a judge.”
Apart from the two Acts mentioned above, judges of a court of record such as the Supreme Court and the High
Courts enjoy immunity from any action for acting judicially within their jurisdiction even if the order be patently
erroneous and unsustainable on merits. 62
3. EXECUTIVE ACTS
Page 7 of 36
The executive Government and the executive officers in India, in general, do not enjoy any protection except that
conferred by legislative enactments which will be discussed under the title Statutory Authority. 63 The State and its
officers are, however, not liable when the wrongful act falls within the purview of Act of State. 64 Subject to the
above, the executive officers are always liable for torts committed by them or authorised by them. 65 The Stateis
also vicariously liable for torts committed by its officers in the course of employment except when they are
committed while discharging traditional sovereign functions. 66
4. ADMINISTRATIVE ACTS
In every State there are administrative bodies or authorities which are required to deal with matters within their
jurisdiction in an administrative manner and their decisions are described as administrative decisions. In reaching
their administrative decisions, administrative bodies can and often do take into consideration questions of policy. It
is not unlikely that even in this process of reaching administrative decisions, the administrative bodies or authorities
are required to act fairly and objectively and would in many cases have to follow the principles of natural justice; but
the authority to reach a decision conferred on such administrative bodies is clearly distinct and separate from the
judicial power conferred on Courts. 67 These administrative bodies or authorities which are distinct from Courts,
Tribunals and officers acting judicially, will not have the protection of the Judicial Officers Protection Act or the
Judges (Protection) Act.68 The question as to what are the limitations on their powers or in other words what are
the grounds on which their acts or orders can be challenged are matters of administrative law. Suffice it to say, that
every authority must act in good faith for the purpose for which the power is conferred, it must not proceed on a
misinterpretation of the statute or law conferring the power and thereby by asking a wrong question; it must take
into account matters relevant for exercise of the power; and it must not be influenced by irrelevant matters. 69 The
distinction between purely administrative and quasi- judicial powers has been obliterated in recent years and the
authority whether purely administrative or quasi- judicial must follow the principles of natural justice if its order is
likely to prejudicially affect the right or even the reasonable expectation of a person. 70 These are the grounds,
which can be briefly described to be grounds of illegality, irrationality and procedural impropriety 71 on which
generally an order of an administrative authority can be challenged and declared void under the administrative law
in a proceeding under Article 32 (if a fundamental right is affected) or Article 226 or in a suit. But from mere
invalidity of the order it does not follow that the authority will be liable for payment of damages in an action in tort to
the aggrieved party. It was so held in Dunlop v. Woolhara Municipal Council, 72 where a resolution of the Council
was held to be void being in breach of the rules of natural justice. But the authority may be held liable for the tort of
“misfeasance by a public officer” if its action is actuated by malice; 73 or for the tort of negligence if negligence is
established; 74 or for wrongful arrest and imprisonment if the void act leads to the commission of that tort. 75 But
liability in negligence does not generally arise when a statutory authority erroneously misconstrues the statute and
consequently takes into account irrelevant matters while passing its order under the statute. 76 The factors that
militate against the imposition of liability in negligence in any given case include (a) availability of judicial review to
correct an error of law, which means that usually the only effect of a negligent decision will be delay; (b) the fact that
an error of law or misconstruction of a statute will only rarely amount to negligence; (c) the danger of inducing
overcaution in civil servants and consequent delay; and (d) difficulty of identifying a particular case in which the
authority is under a duty to seek legal advice. 77
4A. ACTS OF GOVERNING BODY
Expulsion from club etc. —Expulsion of a member from the Club, Association or Professional organisation when the
governing body acts in bad faith or in breach of the rules of natural justice may give rise to a claim for damages but
such an action will be based on contract and not in tort. 78 The same will be the position in respect of expulsion of
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a student from an educational establishment. 79 But an expelled member of a Club or Association has no legal
right of redress if he be expelled according to the rules, howsoever unfair and unjust the rules or the action of the
expelling body may be, provided that it acts in good faith. 80
5. PARENTAL AND QUASI- PARENTAL AUTHORITY
Parents or persons in loco parentis may, for the purpose of correcting what is evil in the child, inflict moderate and
reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. 81 This
right is preserved by the Children and Young Persons Act, 1933. 82
The old view was that the authority of a schoolmaster, while it existed, was the same as that of a parent. A parent,
when he places his child with a schoolmaster, delegates to him all his own authority, so far as it is necessary for the
welfare of the child. 83 The master can, therefore, inflict a moderate chastisement on his pupil or apprentice, 84
e.g., a couple of smacks on the cheek. 85 The modern view is that the schoolmaster has his own independent
authority to act for the welfare of the child. 86 This authority is not limited to offences committed by the pupil upon
the premises of the school, but may extend to acts done by such pupil while on the way to and from the school. 87
At a school for boys there was a rule prohibiting smoking by pupils whether in the school or in public. A pupil after
returning home smoked a cigarette in a public street and next day the schoolmaster administered to him five
strokes with a cane. It was held that the father of the boy by sending him to the school authorized the schoolmaster
to administer reasonable punishment to the boy for breach of a school rule, and that the punishment administered
was reasonable. 88
In England section 548 of the Education Act, 1996 has abolished the authority of a member of staff of a school to
give corporal punishment to a child. But it does not affect the right of the parents to inflict moderate corrective
punishment and so the school, if it feels that in a particular case corporal punishment is desirable, can recommend
to the parents to inflict that punishment. This provision has been held not to affect any right of the teachers and
parents under the Human Rights Act, 1998. 89
The above law relating to parental and school master's right to inflict corporal punishment on a child by way of
correction may not now be consistent with change in general outlook towards methods of correction and respect for
human rights of child. 90
6. AUTHORITIES OF NECESSITY
The master of a vessel on the high seas or in a foreign port has disciplinary powers not only over the crew but the
passengers also. Such powers are based upon necessity and are limited to the preservation of necessary discipline
and the safety of the ship. 91 The commander of an aircraft has similar powers. 92 The authority of the captain to
inflict moderate punishment is not confined to a case where the vessel is at sea beyond the reach of assistance. 93
7. STATUTORY AUTHORITY
If the Legislature authorizes the doing of an act (which if unauthorized would be a wrong) no action can be
maintained for that act, on the ground that no Court can treat that as a wrong which the legislature has authorised,
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and consequently the person who has sustained a loss by the doing of that act is without remedy, unless so far as
the legislature has thought it proper to provide for compensation to him. No action lies for what is damnum sine
injuria ; the remedy is to apply for compensation, if any, provided by the statute legalising what would otherwise be
a wrong. The principle is that the act is not wrongful, not because it is for a public purpose, but because it is
authorised by the legislature. 1 But the underlying philosophy behind the statutory immunity is that the lesser
private right must yield to the greater public interest. 2 The statutory authority extends not merely to the act
authorised by the statute but to all inevitable consequences of that act. 3 If no compensation is given, that affords a
reason, though not a conclusive one, for thinking that the intention of the legislature was, not that the thing should
be done at all events, but only that it should be done, if it could be done, without injury to others. 4 But the powers
conferred by the legislature should be exercised with judgment and caution 5 so that no unnecessary damage be
done. 6 If the damage could have been prevented by the reasonable exercise of the powers conferred, an action
can be maintained. 7 It is negligence to carry out the work in a manner which results in damage unless it can be
shown that that and that only was the way in which the duty could be performed. 8
Where the terms of a statute are not imperative, but permissive, the fair inference is that the legislature intended
that the discretion, as to the use of general powers thereby conferred, should be exercised in strict conformity with
private rights. 9 On those who seek to establish that the legislature intended to take away the private rights of
individuals, lies the burden of showing that such an intention appears by express words or by necessary implication.
10
A person seeking the protection of an Act cannot claim that his conduct has any relation to the “execution of the
Act,” if he knowingly and intentionally acts in contravention of its provisions. 11
Nuisance. —The defence of statutory authority plays an important part in an action of nuisance. 12 In Manchester
Corporation v. Farnworth , 13 the plaintiff's farm was destroyed by the poisonous fumes emitted from the chimney
of the Electric Power Station of the defendant Corporation which claimed to have set up the station under section
32 of the Manchester Corporation Act, 1914. The Court of Appeal allowed injunction and damages to the plaintiff.
The House of Lords dismissed the appeal of the Corporation but varied the order by declaring that the plaintiff
should have damages until the injunction ceased to be suspended or was dissolved, that the injunction be
suspended for one year with liberty to the defendants to apply for dissolution of the injunction on establishing that all
reasonable modes of preventing mischief to the plaintiff had been exhausted and on their submitting to adopt the
most effective modes of avoiding such mischief and to replace them by other reasonable but more effective modes
of prevention subsequently discovered. In course of his speech, LORD DUNEDIN made the following observations.
“When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for
nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing
so authorised. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance
but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of
scientific knowledge at the time, having also in view a certain commonsense application, which cannot be rigidly
defined, of practical feasibility in view of situation and expense.” 14 Applying this principle the House of Lords held
that by callous indifference in planning the construction of the station to all but its own efficiency, the defendant
failed to show that it had used all reasonable diligence and taken all reasonable steps and precautions to prevent
the operation of the station from being a nuisance to its neighbours. The relevant principles were recently restated
by the House of Lords in Allen v. Gulf Oil Refining Ltd . 15 In that case the defendant, an Oil company, which had
constructed a large oil refinery, was sued by the plaintiff who lived in the neighbourhood of the refinery for damages
alleging that the operation of the refinery was a nuisance. The defendant company pleaded statutory immunity
under the Gulf Oil Refining Act, 1965, and this plea was decided as a preliminary issue in favour of the defendant
by the trial Judge whose decision was reversed by the Court of Appeal. In further appeal, the House of Lords
restored the decision of the trial Judge by holding that the Act expressly or by necessary implication conferred an
authority to construct and operate a refinery and that it conferred immunity from any nuisance which could be
shown to be the inevitable result of that. Explaining the extent of protection and the way that issue needed trial
LORD WILBERFORCE observed : “The respondent (Pl.) alleges a nuisance, by smell, noise, vibration etc. The
facts regarding these matters are for her to prove. It is then for the appellants (Defendants) to show, if they can, that
it was impossible to construct and operate a refinery on the site, conforming with Parliament's intention without
creating the nuisance alleged, or at least a nuisance. The establishment of an oil refinery etc., was bound to involve
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some alteration of the environment and so of the standard of amenity and comfort which neighbouring occupiers
might expect. To the extent that the environment has been changed from that of a peaceful unpolluted countryside
to an industrial complex, Parliament must be taken to have authorised it. So far, the matter is not open to doubt. But
the statutory authority extends beyond merely authorising a change in the environment and an alteration of
standard. It confers immunity against proceedings for any nuisance which can be shown (the burden of so showing
being on the appellants) to be the inevitable result of erecting a refinery on the site, not, I repeat, the existing
refinery but any refinery, however, carefully and with however, great a regard for the interest of adjoining occupiers
it is sited, constructed and operated. To the extent and only to the extent that the actual nuisance (if any) caused by
the actual refinery and its operation exceeds that for which immunity is conferred, the plaintiff has a remedy”. 16
The case also restates the following propositions: 17 (1) The extent of the statutory authority and immunity
depends on the construction of the relevant statute; (2) Where Parliament by express direction or by necessary
implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do
what is authorised with immunity from any action based on nuisance; (3) The undertaker must, as a condition of
obtaining immunity from action, carry out the work and conduct the operation without negligence, that is, with all
reasonable regard and care for the interests of other persons; (4) Immunity from action is withheld where terms of
the statute are permissive only, in which case the powers conferred must be exercised in strict conformity with
private rights; (5) The absence of compensation clauses from an Act conferring powers affords an indication that
the Act was not intended to authorise interference with private rights, but this indication is not conclusive; (6) The
immunity extends to any nuisance which is the inevitable result of doing the act authorised by the Act.
Damage to underground pipes by steam-roller.— A gas company had statutory powers to place mains and pipes
under certain highways within the jurisdiction of the defendants, who were by virtue of a statute bound to repair the
highways. The defendants began to use steam-rollers of considerable weight for the purpose of repairing the
highways, and thereby fractured pipes belonging to the company laid under the highways. It was held that the
company was entitled to an injunction restraining the defendants from using such rollers. 18
8. INEVITABLE ACCIDENT
An ‘inevitable accident’, or ‘unavoidable accident’, is that which could not possibly be prevented by the exercise of
ordinary care, caution and skill. 19 It means an accident physically unavoidable. As observed by Greene, M.R., an
accident is “one out of the ordinary course of things, something so unusual as not to be looked for by a person of
ordinary prudence”. 20 It does not apply to anything which either party might have avoided. 21 If a man carries
firearms or drives a horse, his duty is merely to use reasonable care not to do harm to others thereby; and if
notwithstanding the use of such care an accident happens, he may plead that it was due to inevitable accident.
“People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.
22
All causes of inevitable accident may be divided into two classes: (1) those which are occasioned by the elementary
forces of nature unconnected with the agency of man or other cause; and (2) those which have their origin either in
the whole or in part in the agency of man, whether in acts of commission or omission, nonfeasance or of
misfeasance, or in any other causes independent of the agency of natural forces. The term “ act of God ” is
applicable to the former class. 23
If, in the prosecution of a lawful act, an accident, which is purely so, arises, no action can be sustained for any injury
arising therefrom. 24
The defence of inevitable accident used to be essentially relevant in actions for trespass when the old rule was that
even a faultless trespassery contact was actionable, unless the defendant could show that the accident was
inevitable. In other words, the burden used to be on the defendant to show that his conduct was utterly without fault,
i.e., without negligence. But according to the recent development the burden of proving negligence whether the
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action be framed in trespass or negligence lies on the plaintiff. 25 Therefore, now the plaintiff's suit, whether it be in
trespass or negligence, fails if he is unable to prove negligence and the Court is not required to give a finding that
the defendant has proved or not proved that the damage was caused because of inevitable accident. The plea of
inevitable accident is thus now not relevant in these cases. As regards cases of strict liability governed by the rule
of Rylands v. Fletcher, 26 the form of inevitable accident which is known as “act of God” is alone relevant. Further,
inevitable accident in any form is no defence to a claim based on the rule of strict liability as laid down in M.C.
Mehta v. Union of India , 27 which is not subject to any exception. It will thus be seen that the plea of inevitable
accident has now lost substantially all its utility. 28
Damage by explosive substance.— The defendants, a firm of carriers, received a wooden case to be carried to its
destination and its contents were not communicated. On an intermediate station, it was found that the contents
were leaking. The case was, therefore, taken to the defendants’ offices, which they had rented from the plaintiff,
and a servant of the defendants proceeded to open the case for examination, but the nitro-glycerine which it
contained exploded. All the persons present were killed, and the building was damaged. An action was brought by
the landlord for damages suffered by parts of the building let to other tenants as well as to the defendants. The
defendants admitted their liability for waste as to the premises occupied by them but disputed it as to the rest of the
building. It was held that, in the first place, the defendants were not bound to know, in the absence of reasonable
ground of suspicion, the contents of packages offered them for carriage, and that, without such knowledge in fact
and without negligence, they were not liable for damage caused by the accident. 29
Injury to eye.— The plaintiff's and the defendant's dogs were fighting, the defendant was beating them in order to
separate them, and the plaintiff was looking on. The defendant accidentally hit the plaintiff in the eye causing him a
severe injury. In an action brought by the plaintiff, it was held that the action of the defendant was a lawful and
proper act in itself which he might do by proper and safe means; and that if, in doing this act, he accidentally hit the
plaintiff in the eye and wounded him, it was the result of pure accident, and therefore, no action would lie. 30
The defendant parked his saloon motor-car in a street and left his dog inside. The dog had always been quiet and
docile. As the plaintiff was walking past the car, the dog, which had been barking and jumping about in the car,
smashed a glass panel, and a splinter entered the plaintiff's left eye, which had to be removed. In an action for
damages it was held that the plaintiff could not recover as a motor-car with a dog in it was not a thing which was
dangerous in itself, and as the accident was so unlikely there was no negligence in not taking precautions against it.
31
Injury to runaway horses.— The defendant's horses while being driven by his servant on a public highway, ran
away by the barking of a dog and became so unmanageable that the servant could not stop them, but could, to
some extent, guide them. While unsuccessfully trying to turn a corner safely, the servant guided them so that
without his intending it they knocked down and injured the plaintiff who was in the highway. It was held that no
action was maintainable by the plaintiff for the servant had done his best under the circumstances. 32
Injury by pellet.— The defendant, who was one of a shooting party, fired at a pheasant. One of the pellets from his
gun glanced off the bough of a tree and accidentally wounded the plaintiff, who was engaged in carrying cartridges
and game for the party. It was held that the defendant was not liable. 33 The ratio in this case has been criticised
as erroneous, though the decision itself can be supported on the ground of volenti non fit injuria . 34
9. EXERCISE OF COMMON RIGHTS
The exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage. It
is in reference to such cases that we meet with the phrase damnum sine injuria . Prima facie it is the privilege of a
trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying on his trade
according to his own discretion and choice. 35 Competition, with all its drawbacks, not only between individuals,
but between associations, and between them and individuals, is permissible, provided nobody's rights are infringed.
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36 Fair competition is itself no ground of action, whatever damage it may cause. 37 Right of competition exists
even when the means adopted are ‘unfair.’ Underselling is not a wrong, though the seller may sell some article at
unremunerative prices to attract customers, nor is it a wrong to offer advantages to customers who will deal with a
trading company to the exclusion of its rival. 38
Again, everyone may innocently enjoy his own property as he will, and the right is the same whatever one's motive
may be, whether malicious or otherwise. No use of property, which would be legal if due to a proper motive, can
become illegal because it is prompted by a motive which is improper or even malicious. 39 For instance, the
disturbance or removal of the soil in a man's own land, though it is the means (by percolation) of drying up his
neighbour's spring or well, does not constitute the invasion of a legal right, and will not sustain an action. 40
10. LEAVE AND LICENCE—” VOLENTI NON FIT INJURIA ”
Harm suffered voluntarily does not constitute a legal injury and is not actionable. This principle is embodied in the
maxim volenti non fit injuria (where the sufferer is willing no injury is done). A man cannot complain of harm to the
chances of which he has exposed himself with knowledge and of his free will. The maxim volenti non fit injuria “is
founded on good sense and justice. One who has invited or assented to an act being done towards him cannot,
when he suffers from it, complain of it as a wrong.” 41 The maxim presupposes a tortious act by the defendant. 42
The maxim applies, in the first place, to intentional acts which would otherwise be tortious. A trespasser, having
knowledge that there are spring guns in a wood, although he may be ignorant of the particular spots where they are
placed, cannot maintain an action for an injury received in consequence of his accidentally treading on the latent
wire communicating with the gun, and thereby letting if off, 43 for he voluntarily exposes himself to the mischief
which has happened. But a person, who climbs over a wall in pursuit of a stray fowl and is shot by a spring gun, set
without notice, can recover damages. 44
The perfectly sound principle underlying this maxim is daily illustrated in common life. It protects the surgeon who
amputates a limb; the football player, boxer, or fencer, so long as they play fairly according to the rules of the game;
and it prevents a person who chooses to pay a debt barred by the Statute of Limitations, or not enforceable by
reason of infancy, from getting his money back. 45 The application of the maxim is not dependent upon any valid
contract 46 but upon the competence of the decision making capacity of the person at the time the consent was
given. 47 So a minor who is capable of making a reasonable assessment of the advantages and disadvantages of
a treatment proposed by a physician or a surgeon can give a valid consent. In Gillick v. West Norfolk and Wisbeck
Area Health Authority, 48 the House of Lords held that a girl under 16 did not, merely by reason of her age, lack
legal capacity to consent to contraceptive advice and treatment by a doctor. It was also held that having regard to
the reality that a child became increasingly independent as it grew older and parental authority dwindled
correspondingly, the law did not recognise any rule of absolute parental authority until a fixed age; parental rights
were recognised by the law only as long as they were needed for the protection of the child and such rights yielded
to the child's right to make his own decisions when he reached a sufficient understanding and intelligence to be
capable of making up his own mind. 49
To avoid a claim for personal injury against a doctor, it is not necessary that the consent should be informed
consent meaning thereby an objective criterion of what is a sufficient disclosure of risk to ensure that the patient is
enabled to make an intelligent decision. 50 The English law does not recognise this doctrine of informed consent
and the test of liability in respect of a doctor's duty to warn his patient of risks inherent in treatment recommended
by him is the Bolam test which is the same as the test recommended for diagnosis and treatment, namely that the
doctor is required to act in accordance with a practice accepted at the time as proper by a responsible body of
medical opinion. 51 In America it is the ‘reasonably prudential patient’ test evolved in Canterbury v. Spence 52
which is applied. Having regard to Indian conditions the Supreme Court in Samira Kohli v. Prabha Manchanda 53
laid down the law applicable in India on the question of patients’ consent as follows:
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(i) A doctor has to seek and secure the consent of the patient before commencing a “treatment” (the term
“treatment” includes surgery also). The consent so obtained should be real and valid, which means that:
the patient should have the capacity and competence to consent; his consent should be voluntary; and his
consent should be on the basis of adequate information concerning the nature of the treatment procedure,
so that he knows what he is consenting to.
(ii) The “adequate information” to be furnished by the doctor (or a member of his team) who treats the patient,
should enable the patient to make a balanced judgment as to whether he should submit himself to the
particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the
treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the
substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain
remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent
for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal
to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance
should be achieved between the need for disclosing necessary and adequate information and at the same
time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to
undergo an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment.
Consent given for a specific treatment procedure will not be valid for conducting some other treatment
procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would
save considerable time and expense to the patient, or would relieve the patient from pain and suffering in
future, are not grounds of defence in an action in tort for negligence or assault and battery. The only
exception to this rule is where the additional procedure though unauthorized, is necessary in order to save
the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized
procedure until patient regains consciousness and takes a decision.
(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated.
There can also be a common consent for a particular surgical procedure and an additional or further
procedure that may become necessary during the course of surgery.
(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need
not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is
accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It
will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and
consequences attached to the treatment.
As regards spectators at a game, the law has been stated to be as follows: “A person attending a game or
competition takes the risk of any damage caused to him by any act of a participant done in the cause of and for the
purposes of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of
skill, unless the participant's conduct is such as to evince a reckless disregard of the spectator's safety.” 54 The
spectator takes the risk because such an act involves no breach of the duty of care owed by the participant to him
and not because of the doctrine expressed by the maxim volenti non fit injuria . 55 As regards participants in a
sporting event, they may be held to have accepted risks which are inherent in that sport, but this does not eliminate
all duty of care of the one participant to the other; the question whether there has been a breach of such duty will
depend upon a variety of circumstances and the rules of the sport may be one of those circumstances, but they are
neither definitive of the existence of the duty nor does their breach necessarily constitute a breach of any duty. 56
In a football match the defendant's foul play resulted in the plaintiff breaking his leg. In a suit for damages, the
defendant was held liable on the finding that he was guilty of “serious and dangerous foul play which showed a
reckless disregard of the plaintiff's safety and which fell far below the standards which might be expected in any one
pursuing the game.” 57 Further, in deciding whether an organizer of a game has been in breach of duty towards a
player who suffered injury, industry practice and rules of the game are to be taken into account in assessing what
was required by the standard of reasonableness. 58 For example, the organiser of indoor cricket on considering
the above factors was held liable to a player who suffered an eye injury from a cricket ball for not providing helmets
and failing to warn of the risk of serious eye injury. 59
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The maxim applies, in the second place, to consent to run the risk of harm which would otherwise be actionable.
The maxim, be it observed, is not ‘ scienti non fit injuria ’ but ‘ volenti ’. Knowledge is not a conclusive defence in
itself. But when it is a knowledge under circumstances that leave no inference open but one, namely, that the risk
has been voluntarily encountered, the defence is complete. 60 It is necessary to prove that the person injured knew
of the risk, and voluntarily took it. 61 Thus a person willingly undertaking to do work which is intrinsically
dangerous, notwithstanding that care has been taken to make it as little intrinsically dangerous as possible, cannot,
if he suffers, complain that a wrong has been done to him. 62 But if there is negligence on the part of the employer
and he fails in his duty towards the employed, it cannot be said that the employee is willing and that the employer
should thus act towards him simply because he does not straightway refuse to continue in service. 63 If the plaintiff
servant is himself in default which leads to his injury, a distinction may have to be drawn whether it is a case of
negligence or volenti . If the plaintiff's default is the sole cause of the injury he would not be entitled to succeed
whether it be a case of negligence or volenti , for it does not matter in the result whether one says 100 per cent
contributory negligence or volenti non fit injuria . 64 But in cases where the plaintiff's default is partially responsible
for the injury, he would succeed to some extent if it is a case of negligence but not at all if it is a case of volenti . For
example there is a world of difference between two fellow servants collaborating carelessly so that the acts of both
contribute to cause injury to one of them; and two fellow servants combining to disobey an order deliberately though
they know the risk involved. In the first case only a partial defence of contributory negligence is available but in the
second case volenti non fit injuria is a complete defence if the employer is not himself at fault and is only liable
vicariously for the acts of the fellow servants. 65
There are certain limitations to the application of this maxim:

(1) No consent— no leave or licence—can legalise an unlawful act, e.g., fighting with naked fists, a kicking
match or a duel with sharp swords. But the defendent's conduct should be reasonable. So, when the
plaintiff, an old man, challenged the defendant to fight and on his coming forward menacingly, the plaintiff
gave a punch to the defendant's shoulder who then gave a very severe blow to the plaintiff's eye with his
fist, the injury needing ninteen stitches and an operation, it was held that neither volenti non fit injuria nor
extur pi causa non oritur actio applied and the plaintiff was entitled to full compensation for the injury. 66
(2) The maxim has no validity against an action based on a breach of statutory duty. 67 Thus, it is no answer to
a claim made by a workman against his employer for injury caused through a breach by the employer of a
duty imposed upon him by a statute. 68 But where the negligence or breach of statutory duty is on the part
of an employee of the plaintiff who knowingly accepts the risk flowing from such breach and the employer-
defendant is not guilty of negligence or breach of statutory duty, the defence of volenti non fit injuria is
available to the defendant. 69
(3) The maxim does not apply where the plaintiff has, under an exigency caused by the defendant's wrongful
misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent
danger of personal injury or death, whether the person endangered is one to whom he owes a duty of
protection, as a member of his family, or is a mere stranger to whom he owes no such special duty. 70
The rescuer will not be deprived of his remedy merely because the risk which he runs is not the same as
that run by the person whom he rescues. 71 This principle, which has been based upon a weight of
authority in America, has now been adopted by the Court of Appeal in England. But where there is no need
to take any risk, the person suffering harm in doing so cannot recover. 72
(4) Generally the maxim does not apply to cases of negligence, 73 to cover a case of negligence the defence
on the basis of the maxim must be based on implied agreement whether amounting to contract or not. 74
The defence is available only when the plaintiff freely and voluntarily, with full knowledge of the nature and
extent of the risk impliedly agreed to incur it and to waive any claim for injury. 75 Thus there are several
cases where the driver of a vehicle gives a passenger a lift and, at the same time, gives him reasonable
notice that he rides at his own risk. The passenger is bound by the notice and he cannot claim. 76
Similarly when dangerous operations are in progress on land and are apparent, and the owner gives a
licensee permission to go on it, but at the same time give him reasonable notice that he comes at his own
risk, again, he cannot claim. 77 But when the plaintiff has no choice or when the notice is given at a stage
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when it is beyond the ability of the plaintiff to make a choice there can be no implied agreement and the
defence on the basis of the maxim must fail. 78
(5) The maxim does not also apply where the act of the plaintiff relied upon to establish the defence under the
maxim is the very act which the defendant was under a duty to prevent. Thus when a prisoner with known
suicidal tendencies committed suicide while in police custody as the police failed to take reasonable
precautions for preventing suicide, the defence of volenti non fit injuria could not be availed of by the police
in an action for negligence brought by administratix of the estate of the deceased. 79
(6) The maxim will also not apply when the act relied upon is done because of the psychological condition
which the defendant's breach of duty had induced. Thus a person who was badly injured in a factory
accident caused by the negligence or breach of duty of the defendant and suffered severe depression and
committed suicide could not be said to have acted voluntarily and in a claim by widow for damages under
the Fatal Accidents Act. The defendant could not plead the defence under the maxim.80
Injury in rescuing.— The plaintiff, a police constable, was on duty inside a police station in a street in which were a
large number of people including children. Seeing the defendants’ runaway horses with a van attached coming
down the street he rushed out and eventually stopped them, sustaining injuries in consequence, in respect of which
he claimed damages. It was held that as the defendants must or ought to have contemplated that some one might
attempt to stop the horses in an endeavour to prevent injury to life and limb, and as the police were under a general
duty to intervene to protect life and property, the act of, and injuries to, the plaintiff were the natural and probable
consequences of the defendants’ negligence; and that the maxim volenti non fit injuria did not apply to prevent the
plaintiff recovering. 81 A horse belonging to the defendants and attached to one of their vans was seen by the
plaintiff running past his house without the driver. It entered a field adjoining the plaintiff's garden, and the driver,
who had followed it, was trying to pacify it, but as it continued to be restive, the driver shouted for help. The plaintiff
went and attempted to hold the horse, but it threw him to the ground causing him injuries, in respect of which he
sued the defendants. It was held that the plaintiff must have known that his attempt to hold the horse was attended
with risk, and that the principle of volenti non fit injuria applied and precluded the plaintiff from recovering. 82 This
case has been distinguished in the former case on the ground that there was no need to take any risk. While the
plaintiffs, husband and wife, were in a shop as customers, a skylight in the roof of the shop was broken, owing to
the negligence of contractors engaged in repairing the roof, and a portion of the glass fell and struck the husband
causing him a severe shock. His wife, who was standing close to him, was not touched by the falling glass, but,
reasonably believing her husband to be in danger, she instinctively clutched his arm, and tried to pull him from the
spot. In doing this she strained her leg in such a way as to bring about a recurrence of thrombosis. In an action to
recover damages from the contractors, it was held that the wife was also entitled to damages along with the
husband, inasmuch as what she did was, in the circumstances, a natural and proper thing to do. 83
Travelling in motor-car knowing that driver is drunk. —The plaintiff, knowing that the driver of a motor-car was under
the influence of drink and that, consequently, the chances of accident were thereby increased, chose to travel by
the car. She was injured in an accident caused by the drunkenness of the driver, in which the driver was killed. In
an action against the personal representative of the driver, the defendant raised the defence of volenti non fit injuria
. It was held that, except perhaps in extreme cases, the maxim did not apply to the tort of negligence and that the
plaintiff was entitled to recover. 84
Travelling at own risk.— The plaintiff, an infant 17 years old, agreed to be carried in the car of the defendant, who
was also 17 years old, at the plaintiff's own risk. The car struck a wall due to the defendant's negligence and the
plaintiff was injured. On the question whether the defence volenti non fit injuria was an answer to the plaintiff's claim
for damages, it was held that the plaintiff, though an infant in law, could not enforce a right which he had voluntarily
waived or abandoned, and, accordingly, the defence of volenti non fit injuria succeeded. 85
11. NECESSITY
Page 16 of 36
There are three classes of cases to which the defence of necessity applies, viz. (1) Cases of public necessity; (2)
Cases of private necessity; and (3) Cases where assistance is given to a third person without his consent as a
matter of necessity. 86
The defence of public necessity is based on the maxim salus populi suprema lex (the welfare of the people is the
supreme law), a maxim founded on the implied assent on the part of every member of society, that his own
individual welfare shall, in cases of necessity, yield to that of the community and that his property, liberty and life,
shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good. There are many
cases in which individuals sustain an injury for which law gives no action; as, where private houses are pulled
down, or bulwarks raised on private property, for the preservation and defence of the kingdom against the King's
enemies, 87 or where houses are pulled down to stop a fire, or goods cast overboard to save a ship or the lives of
those on board. 88 It is only in cases of existing, immediate, and overwhelming public necessity that any such right
exists. 89 Further the defence of necessity is not available to a defendant whose negligence has created or
contributed to the necessity. 90 The doctrine of necessity is confined within very narrow limits e.g., urgent and
transient situations of great and imminent danger to life in which the law permits some encroachment on private
property. 91 If the Crown takes the subject's land for the defence of the country, the Crown has to pay
compensation for its use and occupation. 92 It has been held in a recent decision of the House of Lords that where
demolitions were carried out lawfully in exercise of royal prerogative, though without statutory authority, there was
no general rule, that the prerogative could be exercised, even in time of war or imminent danger, by taking or
destroying property without making payment for it. 93
Private necessity may also give rise to a defence of necessity. In the context of an argument that pavement
dwellers of Bombay had in occupying pavements, though out of sheer helplessness, committed the tort of trespass,
the Supreme Court observed: “Under the law of torts necessity is a plausible defence, which enables a person to
escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia , to
himself. Here, as elsewhere in the law of torts, a balance has to be struck between competing sets of values.” 1
But under the English Law homelessness is not a valid defence. In the words of LORD DENNING, M.R.: “If
homelessness were once admitted as a defence to trespass, no one's house could be safe.—So the Court must, for
the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the
homeless; and trust that their distress will be relieved by the charitable and the good”. 2 This view must also prevail
in India when the trespass is upon private property. But will different considerations apply when the State complains
of trespass for in the context of Articles 21, 39 and 41 of the Constitution it has the duty, in cases of undeserved
want, to give public assistance and to provide humane living conditions. 3 The observations of the Supreme Court
quoted above from Olga Tellis ’ case raise this question. But in a case relating to removal of a stall built by a
pavement squatter on a public street, it was held by the Supreme Court that the municipal corporation Delhi could
not be compelled to provide a stall to the squatter before his eviction. 4 And in Sodan Singh v. New Delhi Municipal
Committee , 5 the Supreme Court, although upholding the fundamental right of hawkers under Article 19(1) (g ) of
the Constitution to trade on street pavements subject to regulation, negatived the right to occupy any particular
place on the pavement. 6 The court also held that Article 21 was not attracted in such cases 7 and reaffirmed that
“if a person puts up a dwelling on the pavement whatever may be the economic compulsions behind such an act,
his user of the pavement would remain unauthorised” 8 . However, in a case relating to removal of hutment dwellers
from land belonging to the Bombay Port Trust, the Supreme Court did not permit the removal of those who were in
occupation for atleast two years prior to a cut off date fixed by the court without providing them alternative sites. 9
In holding so, the court took into account the untold hardship and misery which was bound to result to the
occupants on removal of their hutments. Apart from the question of applicability of Art. 21 when a trespasser who
has built his home on public land is ejected it may also be a question whether in such a case Art. 17 of the
International Covenant on Civil and Political Rights, 1966 to which India is a party is attracted. Art. 17 of the
Covenant in so far as relevant provides: “No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence”. The corresponding Article in the European Convention is Article 8 which
has been interpreted differently by the House of Lords 10 and European Court of Human Rights 11 with reference
to the ejectment of unauthorized occupation by gypsies, the House of Lords holding that the said Article is not
applicable whereas the European Court of Human Rights holding that it may be attracted if there is summary
eviction without proper justification and procedural safeguards. Both these cases were discussed by the Court of
Page 17 of 36
Appeal in Leeds City Council v. Price 12 and the court followed the decision of the House of Lords but granted
leave to appeal so that the matter may be reconsidered by the House of Lords.
The plaintiff let the shooting rights over his land to one C. A fire broke out on the land, and while the plaintiff's men
were endeavouring to beat it out, the defendant, who was the gamekeeper of C, to prevent spreading of fire and
damaging the sporting rights of his master, set fire to strips of heather between the fire and a part of the shooting
where there were some nesting pheasants of his master. The fire was extinguished by the plaintiff's men. In an
action of trespass against the defendant, it was held that the defendant was not liable. 13
Third group of cases are concerned with action taken as a matter of necessity to assist another person without his
consent. For example, a man who seizes another and forcibly drags him from the path of an oncoming vehicle
thereby saving him from injury or even death commits no wrong. 14 Other examples are where medical treatment,
which is in his best interests, is administered to a patient who is unable to give his consent 15 or where a person of
unsound mind is detained in a mental hospital which is in his best interest. 16
12. PRIVATE DEFENCE
Every person has a right to defend his own person, property, or possession, against an unlawful harm. This may
even be done for a wife or husband, a parent or child, a master or servant.
“When a man strikes at another within a distance capable of the latter being struck, nature prompts the party struck
to resist it, and he is justified in using such a degree of force as will prevent a repetition.” 17 Normally “no verbal
provocation whatever can justify a blow.” 18 The force employed must not be out of proportion to the apparent
urgency of the occasion. 19 The person acting on the defensive is entitled to use as much force as he reasonably
believes to be necessary. The test is whether the party's act was such as he might reasonably, in the
circumstances, think necessary for the prevention of harm which he was not bound to suffer. The necessity must be
proved. 20 Injuries received by an innocent third person from an act done in self-defence must be dealt with as
accidental harm caused from a lawful act.
Every person is entitled to protect his property. But he cannot for this purpose do an act which is injurious to his
neighbour. If, for instance, an extraordinary flood is seen to be coming upon land, the owner of such land may fence
off and protect his land from it, and so turn it away, without being responsible for the consequences, although his
neighbour may be injured by it. Similarly, an owner of agricultural land may protect his land from a visitation of
locusts and turn away the pest without being responsible for the consequences to neighbouring owners. 21 The
right of a person to protect his land from extraordinary flood extends to the doing of anything which is reasonably
necessary to save his property, but he cannot actively adopt such a course as may have the effect of diverting the
mischief from his own land to the land of another person which would otherwise have been protected. 22 A
landowner, on whose land there is a sudden accumulation of water brought there without any fault or act of his, is
not at liberty actively to let it off on to the land of his neighbour without making that neighbour any compensation for
damage, because the landowner, by doing so, has been able to save his own property from injury. 23 The means
adopted to protect one's property must be reasonable i.e., proportionate to the injuries which they are likely to inflict.
24 Broken glass or spikes on a wall or a fierce dog may be justified on this principle but not deadly implements like
spring guns 25 or live electric wire of high voltage 26 to dissuade trespassers.
Shooting dog that has ceased to attack.— Where the defendant was passing by the plaintiff's house, and the
plaintiff's dog ran out, and bit the defendant's gaiter, and on the defendant turning round, and raising his gun, the
dog ran away, and he shot the dog as it was running away, it was held that the defendant was not justified in so
doing. To justify shooting the dog, he must be actually attacking the party at the time. 27 Chasing by dogs which
causes any real or present danger of serious harm to the animals chased entitles the owner of the animals to take
effective measures of prevention. But he has to show that there was real and imminent danger and that he acted
reasonably having regard to the circumstances. 28
Page 18 of 36
Spearing vicious stallion.— A vicious stallion repeatedly attacked on a road a pair of mares belonging to the
carriage in which the defendant was being driven, and finally came into the defendant's compound in spite of
attempts made to prevent him, and continued his attacks until the defendant getting hold of a spear inflicted a
somewhat severe wound on the left hind quarter of the animal. After this the stallion made off, but subsequently
died from the effects of the spear wound. It was held that the defendant's action was justifiable and the owner of the
stallion was not entitled to any damages. 29
13. PLAINTIFF A WRONG-DOER
A plaintiff is not disabled from recovering by reason of being himself a wrongdoer, unless some unlawful act or
conduct on his own part is connected with the harm suffered by him as part of the same transaction. 30 A
trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury
sustained. 31 Thus, in Bird v. Holbrook , 32 the plaintiff was a trespasser as he climbed over defendant's wall in
pursuit of a fowl, but he was held entitled to damages for the injury caused by a spring gun set by the defendant
without notice in his garden, although the injury would not have occurred if the plaintiff had not trespassed on the
defendant's land.
In National Coal Board v. England , 33 LORD ASQUITH gave illustrations as to when a defence of ex turpi causa
may succeed or may not succeed. He said: “Possibly a party to an illegal prize fight who is injured in the conflict
cannot sue for assault. If two burglars, A and B, agree to open a safe by means of explosives, and A so negligently
handles the explosive charge as to injure B, B might find some difficulty in maintaining an action for negligence
against A. But if A and B are proceeding to the premises which they intend burglariously to enter and before they
enter them B picks A's pocket and steals his watch, I cannot prevail on myself to believe that A could not sue in tort.
The theft is totally unconnected with burglary.” 34
In Saunders v. Edwards , 35 the Court of Appeal laid down that “the conduct and relative moral culpability of the
parties may be relevant in determining whether or not the ex turpi causa defence falls to be applied.” 36 In that
case the defendant sold the lease of a flat to the plaintiffs and in so doing fraudulently represented that the flat
included a roof terrace. The price paid was 45,000. In order to reduce the stamp duty the purchase price was
apportioned on the basis of 40,000 for the flat and 5000 for the chattels although parties knew the chattels to be
worth much less. When the plaintiffs discovered that the flat did not include the terrace they sued in tort for
damages for the fraudulent misrepresentation. The defendant pleaded that the plaintiffs being party to the illegality
of evasion of stamp duty could not sue for damages. The Court of Appeal negatived this defence and disregarded
the plaintiffs’ illegality because (a) they had an unanswerable claim against the defendant for fraudulent
misrepresentation; (b) the defendant's own moral culpability greatly outweighed that of the plaintiffs; and (c) the
illegal apportionment in the contract was wholly unconnected with the plaintiffs’ cause of action in tort and the loss
suffered by them as the result of fraudulent misrepresentation.
When two persons are engaged in a joint illegal enterprise and the hazards necessarily inherent in its execution are
such that it is impossible to determine the appropriate standard of care because the joint illegal purpose has
displaced the ordinary standard of care, one of them if injured in the course of that enterprise cannot claim
compensation from the other. 37 This principle was applied by thecourt of Appeal in Pitts v. Hunt , 38 where a
pillion passenger aged 18 encouraged his friend aged 16 to drive recklessly and dangerously after both had been
drinking together and the motor byke met with an accident in which the driver was killed and the pillion passenger
suffered serious injuries. The claim for compensation was made by the pillion passenger against the
representatives of the deceased in negligence which was negatived.
14. ACTS CAUSING SLIGHT HARM

Page 19 of 36
Nothing is a wrong of which a person of ordinary sense and temper would not complain. Courts of Justice generally
do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the trial of a
right, or where personal character is involved. This principle is based on the maxim de minimis non curat lex (the
law does not take account of trifles), and is recognised in the Indian Penal Code (s. 95). The maxim does not apply
where there is an injury to a legal right.
A walks across B's field without B's leave, doing no damage. A has wronged B, because the act, if repeated, would
tend to establish a claim to a right of way over B's land. 39 A casts and draws a net in water where B has the
exclusive right of fishing. Whether any fish are caught or not, A has wronged B, because the act, if repeated, would
tend to establish a claim or right to fish in that water. 40
1
15th edn., p. 78.
2
Eshugbay Eleko v. Officer Administering, the Government of Nigeria, 1931 AC 662 (PC), AIR 1931 PC 248
: 1931 All LJ 466.
3
Johnstone v. Pedlar, (1921) 2 AC 262 : 125 LT 809 : 37 T.L.R. 870 (HL).

4
STEPHEN, History of Criminal Law, Vol. II, pp. 61, 62.
5
Salaman v. Secretary of State for India , [1906] 1 KB 613, 639; Rao v. Advani , (1949) 51 Bom LR 342 :
AIR 1949 Bom 277 . See, a dissertation on this subject in the (1906) 8 Bombay Law Reporter (Journal), p.
66 and also in the Allahabad Law Journal, Vols. I and II.
See, Buron v. Denman , (1848) 2 Ex 167. See, Mir Zulef Ali v. Veshvadabai Saheb , (1872) 9 BHC 314,
where a sequestration by the officers of the Government of the private property of the Angria of Kolaba was
made contrary to the orders of the Court of Directors but was subsequently ratified. See, Ross v. Secretary
of State , ILR (1914) 37 Mad 55 : AIR 1915 Mad 434 : 19 IA 253 as to essentials of ratification.
6
(1848) 2 Ex. 167.
7
Walker v. Baird, (1892) AC 491, p. 494 : 67 LT 513 (HL); Johnstone v. Pedlar, (1921) 2 AC 262 (HL), p.
295.
8
1931 AC 662 (PC): AIR 1931 PC 248 : 1931 All LJ 466.

9
Attorney General v. Nissan, (1970) AC 179, p. 213 : (1969) 2 WLR 926 (HL) (LORD REID).
10
Johnstone v. Pedlar, (1921) 2 AC 262 : 125 LT 809 (HL).

11
Ibid.
Page 20 of 36
12
Netz v. Ede , [1946] Ch. 224 ; R. v. Bottrik, (1947) KB 47, p. 57 : 62 T.L.R. 570.
13
Salaman v. Secretary of State for India, (1906) 1 KB 613.

14
State of Gujarat v. Vora Fiddali , AIR 1964 SC 1043, (p. 1061) : (1964) 2 SCA 563 overruling Virendra
Singh v. State of U.P ., AIR 1954 SC 447 : 1955 SCR 415 : 1954 SCA 686 which had shown preference for
the American view.
15
H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia v. Union of India , AIR 1971 SC 530, (p. 552) : (1971)
1 SCJ 295 : (1971) 2 SCA 257 (HIDAYATULLAH CJ) also see, p. 575; State of Saurashtra v. Memon Haji
Ismail , AIR 1959 SC 1383 (1387) : (1960) 1 SCR 537 [LNIND 1959 SC 139] : (1960) SCJ 394 [LNIND
1959 SC 139] ; B.K. Mohapatra v. State of Orissa , AIR 1988 SC 24, pp. 28, 29 : 1987 Supp SCC 553.
16
Common Cause, a Registered Society v. Union of India, AIR 1999 SC 2979, p. 3003 : (1999) 6 SCC 667
[LNIND 1999 SC 637].
17
(1859) 7 MIA 477.
18
(1859) 7 MIA 477, (531).
19
In re, Maharaja Madhava Singh , (1905) ILR 32 Cal 1 (PC); 31 IA 239 (389) (PC). See further, Saligram v.
Secretary of State , (1872) 18 Suth WR 389 : IA (Supp. Vol. 119 PC) Deposition of King of Delhi and
confiscation of his property after mutiny were acts of State.
20
Cook v. Sprigg , (1915) 42 IA 229, (237-8) : AIR 1915 PC 59 : 13 All LJ 953, Vajesinghji Joravarsinghji v.
Secretary of State , AIR 1924 PC 216 : 51 IA 357 : 22 All LJ 951. Secretary of State v. Sardar Rustam Khan
, AIR 1941 PC 64 : 68 IA 109 : 195 IC 769; Asrar Ahmad v. Durgah Committee Ajmer , AIR 1947 PC 1 :
1946 All LJ 451 : 49 Bom LR 235 (PC).
21
Vajesinghji Joravarsinghji v. Secretary of State , AIR 1924 PC 238 : 84 IC 567 : 51 IA 357, (360, 361).
Followed recently in Winfat Enterprise (H.K.) Co. Ltd. v. Attorney General of Hongkong , (1985) 3 All ER 17
: (1985) 2 WLR 786 : (1985) AC 733 (PC).
22
AIR 1947 PC 1 : 1946 All LJ 451 : 49 Bom LR 235 (PC).
23
(1872) 1 IA (Supp) 1 (PC).
24
Dalmia Dadri Cement Co. Ltd. v. C.I.T ., AIR 1958 SC 816 : 1958 SCJ 1041 : 34 ITR 514. State of
Saurashtra v. Memon Haji Ismail , AIR 1959 SC 1383 : (1960) 1 SCR 537 [LNIND 1959 SC 139] : 1960
Page 21 of 36
SCJ 394 [LNIND 1959 SC 139]. Jagannath Agarwal v. State of Orissa , AIR 1961 SC 1361 : (1962) 1 SCJ
179 [LNIND 1961 SC 93] : (1962) 1 SCA 226 [LNIND 1961 SC 93], State of Saurashtra v. Jamadar
Mohammad Abdulla , AIR 1962 SC 445 : (1962) 2 SCJ 70 : (1962) 2 SCA 605, Promod Chandra v. State of
Orissa , AIR 1962 SC 1288 : (1963) 1 SCJ 1 : 1962 (Suppl) (1) SCR 405, State of Gujarat v. Vora Fiddali ,
AIR 1964 SC 1043 : (1964) 2 SCA 563, Pema Chibbar v. Union of India , AIR 1966 SC 442 : (1966) 1
SCWR 232 : (1966) 1 SCA 918, Vinod Kumar Shantilal Gosalia v. Gangadhar Narsinghdas Agarwal , AIR
1981 SC 1946 : (1981) 4 SCC 226 [LNIND 1981 SC 360] : (1982) 1 SCR 392 [LNIND 1981 SC 360] ; State
of Haryana v. Amarnath Bansal, AIR 1997 SC 718, p. 723. See, the summary in Promod Chandra v. State
of Orissa , AIR 1962 SC 1288, (1299, 1300) : (1963) 1 SCJ 1 = 1962 (Suppl) (1) SCR 405. The ex-rulers
are also governed by the same rules : Amar Singhji v. State of Rajasthan , AIR 1955 SC 504, (523) : 1955
SCA 766 [LNIND 1955 SC 36] : (1955) 2 SCR 303 [LNIND 1955 SC 36]. Bhawani Shanker v.
Somsunderam , AIR 1965 SC 316 : (1962) 1 Cri LJ 364 : (1962) 1 SCJ 68. H.H. Maharaja Madhav Rao
Jiwaji Rao Scindia v. Union of India , AIR 1971 SC 530, (574) : (1971) 1 SCJ 295 : (1971) 2 SCA 257 :
(1977) 1 SCC 85; Draupadi Devi v. Union of India, (2004) 11 SCC 425 [LNIND 2004 SC 907] : AIR 2004
SC 4684. See further, Oyekan v. Adele , (1957) 2 All ER 785 (PC); Winfat Enterprise (HK) Co. Ltd. v.
Attorney General of Hongkong , (1985) 3 All ER 17 : (1985) AC 733 : (1985) 2 WLR 786 (PC).
N.B. : In Virendra Singh v. State of U.P ., AIR 1954 SC 447 a contrary view as to the effect of an act of
State was taken; but this case was overruled in State of Gujarat v. Vora Fiddali , AIR 1964 SC 1043.
Virendra Singh's case was relied upon in Vishnu Pratap Singh v. State of M.P ., AIR 1990 SC 522 : 1990
Supp SCC 43, but the defence of act of State was not specifically taken in this case. In Draupadi Devi v.
Union of India, (2004) 11 SCC 425 [LNIND 2004 SC 907] : AIR 2004 SC 4684 it is reaffirmed that the cases
of Virendra Singh , Vishnupratap Singh, supra and State of Punjab v. Brigadier Sukhjit Singh, (1993) 3 SCC
459 [LNIND 1993 SC 484] do not lay down good law and cannot be cited as precedent.
25
State of Saurashtra (Now Gujarat) v. Mohammad Abdulla , AIR 1962 SC 445 : (1962) 2 SCJ 70 : (1962) 2
SCA 605.
26
Ibid., p. 453. See further, State of Saurashtra v. Memon Haji Ismail , AIR 1959 SC 1383 : (1960) 1 SCR 537
[LNIND 1959 SC 139] : 1960 SCJ 394 [LNIND 1959 SC 139].
27
AIR 1966 SC 442 : (1966) 1 SCWR 234 : (1966) 1 SCA 918.
28
AIR 1981 SC 1946 : (1981) 4 SCC 226 [LNIND 1981 SC 360] : (1982) 1 SCR 392 [LNIND 1981 SC 360].
29
H.H. Maharaja Madhav Rao Jivaji Rao Scindia v. Union of India , AIR 1971 SC 530, (574) : (1971) 1 SCJ
295 : (1971) 2 SCA 257 : (1971) 1 SCC 85 [LNIND 1970 SC 481]. To overcome this decision the
constitution was amended by Constitution (26th Amendment) Act, 1971, and the Rulers were derecognised
and their privileges abolished by deleting Articles 291 and 362 and by adding a new Article 363 A. This
amendment was upheld in Raghunathrao Ganpatrao v. Union of India , AIR 1993 SC 1267 : 1994 Supp (1)
SCC.
30
Anderson v. Gorrie, (1895) 1 QB 668 (671) : 71 L.T. 382; Ward v. Freeman , (1852) 2 Ir CLR 460.
31
Garnet v. Ferrand , (1827) 6 B & C 611.

Page 22 of 36
32
Scott v. Stansfield , (1868) LR 3 Ex 220.

33
PER KELLY, C.B. in Scott v. Stansfield , (1868) LR 3 Ex 220, 223.

34
Fray v. Blackburn , (1863) 3 B & S 576.

35
McC v. Mullan , (1984) 3 All ER 908 (916) : (1984) 3 WLR 1227 : 81 Cri App. R 54 (HL).
36
Ibid.
37
Ibid.
38
Ibid.
39
Sirros v. Moore , (1974) 3 All ER 776 (788) : (1975) QB 118 : (1974) 3 W.L.R. 459 (CA).
40
Ibid. , p. 789.
41
Ibid., p. 784.
42
Ibid., p. 785, (796).

43
Mc C. v. Mullan , (1984) 3 All ER 908 (HL), pp. 916, 917 : (1984) 3 WLR 1227.
44
Ibid., p. 917.
45
Ibid., p. 920.
46
Ibid., pp. 916, 917.

47
Ibid., pp. 921, 922, 924.

48
Page 23 of 36
Ibid., p. 920. For a recent case where the magistrates were held liable, see, R. v. Manchester City
Magistrates Court, ex parte Davies , (1989) 1 All ER 90 : (1989) QB 631 : (1988) 3 WLR 1357 (CA).
49
Per LORD HOLT C.J. in Morris v. Reynolds , (1704) 2 Ld. Raym. 857.
50
Wills v. Maccarmick , (1762) 2 Wils 148.

51
Sutcliff v. Thackrah, (1974) AC 727 : (1974) 2 WLR 295 : (1974) 1 All ER 859 (HL); Arenson v. Casson
Beckman Rutley & Co ., (1977) AC 405 : (1975) 3 All ER 901 (HL); Palacath v. Flanagan , (1985) 2 All ER
161.
52
London Corporation v. Cox , (1867) LR 2 HL 239 (269), PER WILLES J.; Sirros v. Moore , (1974) 3 All ER
776 (CA), p. 785 : (1975) QB 118 (LORD DENNING M.R.).
53
Hoye v. Bush , (1840) 1 M & G 775.

54
Act XVIII of 1850, s. 1. See, Sinclair v. Broughton , (1882) 9 IA 152 : (1883) ILR 9 Cal 341; Girjashankar v.
Gopalji , (1905) 7 Bom LR 951 : (1906) ILR 30 Bom 241; Moti Lal Ghose v. Secretary of State for India ,
(1905) 9 CWN 495; M. Lall Bhuyan v. Md. Sultan , 1973 Assam LR 59 (Gauhati); Muddada Chayanna v. G.
Veerabhadra Rao , AIR 1979 AP 253 [LNIND 1979 AP 66]: 1979 LS (AP) 159. For ministerial Officers
acting in execution of a judicial order, see, Ramlal Kanhaiyalal Somani v. Ajit Kumar Chatterjee , AIR 1973
Cal 372 [LNIND 1973 CAL 67]; Devayya Gowda v. M. Ganapati Srinivas , AIR 1974 Mys 24 : (1973) 1 Mys
LJ 197.
55
Venkat v. Armstrong, (1865) 3 BHC (ACJ) 47 ; Parankusam v. Sturat , (1865) 2 MHC 396; R. Raghunada
Rau v. Nathamuni , (1871) 6 MHC 423; Hari v. Janardan , (1873) 10 BHC 350n, Clarke v. Brojendra
Kishore Roy Chowdhary , (1912) ILR 39 Cal 953 : 14 Bom LR 717 : 39 IA 163 (PC).
56
Chunder Narain v. Brojo Bullub , (1874) 14 Beng LR 254 : Suth WR 391.

57
Anwar Hussain v. Ajoy Kumar , AIR 1965 SC 1651 : (1965) 2 Cri LJ 686 : (1965) 2 SCWR 78 approving
Teyen v. Ram Lal , (1890) ILR 12 All 115; S.P. Goel v. Collector of Stamps , AIR 1996 SC 839, p. 845 :
(1996) 1 SCC 573 [LNIND 1995 SC 1274].
58
Per WESTROPP, J, in Vinayak v. Bai Itcha, (1865) 3 BHC (ACJ) 36, 46; Vithoba Malhari v. A.K. Corfield ,
(1855) 3 BHC (Appx) 1; Queen v. Sahoo , (1869) 11 Suth WR (Cr) 19; Collector of Sea Customs v.
Chidambara , (1876) ILR 1 Mad 89.
59
Page 24 of 36
Amminappa v. Mohamad , (1865) 2 MHC 443; Reg. v. Dalsukram Haribhai , (1866) 2 BHC 384; Prahlad
Maharudra v. A.C. Watt , (1873) 10 BHC 346; Calder v. Halket , (1839) 2 MIA 293; S. Pande v. S.C. Gupta
, AIR 1969 Pat 194 : 1968 Pat LJR 600 : 1969 BLJR 1084.
60
State v. Tulsiram , AIR 1971 All 162 : 1970 All WR (HC) 160 : 1970 All Cri R 429.
61
For distinction between Court, Tribunal and purely administrative bodies, see, A.C. Companies v. P.N.
Sharma , AIR 1965 SC 1595, (1599) : (1965) 1 SCA 723 [LNIND 1964 SC 346] : (1965) 1 Lab LJ 433
[LNIND 1964 SC 346]. Engineering Mazdoor Sabha v. Hind Cycle Ltd ., AIR 1967 SC 1494 : 1967 Cri LJ
1380 [LNIND 1967 SC 70] : (1967) 2 SCWR 460 [LNIND 1967 SC 70].
62
State of Rajasthan v. Prakash Chand, AIR 1998 SC 1344, p. 1357 : (1994) 1 SCC 1 [LNIND 1993 SC 901] :
1988 Cr LJ 2012.
63
See, title 7 ‘Statutory Authority’ post .

64
See, title 1 ‘Acts of State’, ante .

65
See, title 8 ‘The State and its officers’, Chapter III, ante .
66
Ibid .
67
A.C. Companies v. P.N. Sharma , AIR 1965 SC 1595 (1599) : (1965) 1 SCA 723 [LNIND 1964 SC 346] :
(1965) 1 Lab LJ 433 [LNIND 1964 SC 346].
68
See, title 2 Judicial acts, ante.

69
Associated Provincial Picture House Ltd. v. Wednesbury Corporation , (1947) 2 All ER 680 (CA); Padfield v.
Minister of Agriculture , (1968) 1 All ER 694 (HL), Bromby London Borough Council v. Greater London
Council , (1982) 1 All ER 129 (CA), 153 (HL); Holgate Mohammad v. Duke , (1984) 1 All ER 1954 : (1984)
AC 437 (HL), Rohtas Industries Ltd. v. S.D. Agrawal , AIR 1969 SC 707 : (1969) 2 SCJ 1 : (1969) 1 SCC
325 [LNIND 1968 SC 428]. Indian Express Newspapers v. Union of India , AIR 1986 SC 515 : 1985 Tax LR
2451 : (1985) 2 SCR 287 [LNIND 1984 SC 337] : (1985) 1 SCC 641 [LNIND 1984 SC 337] (691, 692, 693);
Anisminic Ltd. v. Foreign Compensation Commission , (1969) 1 All ER 208 (HL), Liberty Oil Mills v. Union
of India , AIR 1984 SC 1271 = (1984) 3 SCR 676 [LNIND 1984 SC 381] : (1984) 3 SCC 465 [LNIND 1984
SC 381] (494).
70
In re, K. (H) (an infant), (1967) 1 All ER 226; R. v. Gaming Board , (1970) 2 All ER 528 (CA); O'Relly v.
Mackman , (1982) 3 All ER 1124 (1126, 1127), (HL); CCSU v. The Minister for Civil Services , (1984) 3 All
ER 935 (HL); A.K. Kraipak v. Union of India , AIR 1970 SC 150 : (1970) 1 SCR 457 [LNIND 1969 SC 197] :
Page 25 of 36
(1969) 2 SCC 262 [LNIND 1969 SC 197], Maneka Gandhi v. Union of India , AIR 1978 SC 597 (627, 628) :
(1978) 2 SCR 621 [LNIND 1978 SC 25] : (1978) 1 SCC 248 [LNIND 1978 SC 25]. The duty to hear may be
negatived on grounds of national security, CCSU v. The Minister of Civil Services, supra and in case of
urgency there may be post decisional hearing; Maneka Gandhi v. Union of India, supra .
71
CCSU v. The Minister for Civil Services , (1984) 3 All ER 935 (950, 951) (HL).
72
(1981) 1 All ER 1202 : (1982) AC 158 (PC).

73
Ibid., p. 1210, David v. Abdul Cader, (1963) 1 WLR 834 (PC). The tort will also be committed, even in
absence of malice, if the Public Officer knew both that what he was doing was invalid and that it will injure
the plaintiff; Bourgoin S A v. Ministry of Agriculture , (1985) 3 All ER 585 : (1986) QB 716 : (1985) 3 WLR
1027 (CA). See , for this tort Chapter XIII, title 5.
74
Home Office v. Dorset Co. Ltd ., (1970) AC 1004 : (1970) 2 WLR 1140 (HL).
75
Holgate Mohammed v. Duke , (1984) 1 All ER 1054 (HL), p. 1057 : (1984) AC 437.
76
Rowling v. Takaro Properties Ltd ., (1988) 1 All ER 163 (PC); Jones v. Department of Employment , (1988)
1 All ER 725 : (1989) QB 1 : (1988) 2 WLR 493 (CA).
77
Rowling v. Takaro Properties Ltd., supra.

78
T.P. Daver v. Lodge Victoria , AIR 1963 SC 1144 : (1963) 2 SCJ 465 : (1963) SCD 772, Bonsor v.
Musicians Union, (1956) AC 104 : (1955) 3 WLR 788 (HL); Maclean v. Workers Union, (1929) 1 Ch 602.
79
Herring v. Templeman , (1973) 3 All ER 569 (CA), p. 585. Also see, U.P. Singh v. Board of Governers
Maulana Azad College , 1982 M P L J 75 (79, 80).
80
Maclean v. Workers Union, (1929) 1 Ch 602; T.P. Daver v. Lodge Victoria , AIR 1963 SC 1144 : (1963) 2
SCJ 465 : 1963 SCD 772.
81
Regina v. Hopley , (1860) 2 F & F 202, 206; Winterburn v. Brooks , (1846) 2 C & K 16; Att. Gen. v. Edge,
(1943) IR 115.
82
23 & 24 Geo. V, Ch 12.
83
PER COCKBURN, C.J., in Fitzgerald v. Northcote , (1865) 4 F & F 656, 689.

Page 26 of 36
84
Penn v. Ward , (1835) 2 Cr M & R 338.

85
Sankunni v. Swaminatha Pattar , (1922) ILR 45 Mad 548.

86
Ramsay v. Larsen, (1965) ALR 121.

87
Cleary v. Booth, (1893) 1 QB 465. See, Hunter v. Johnson, (1884) 13 QBD 225. But a musicmaster of a
cathedral is not justified in even moderately beating a chorister for singing at a catch club, though such
singing might be injurious to his performing in the cathedral: Newman v. Bennett, (1819) 2 Chit 195.
88
Rex v. Newport (Salop) Justices : Wright, Ex parte, (1929) 2 KB 416.

89
R (on the application of Williamson and others) v. Secretary of State for Education and Employment ,
(2003) 1 All ER 385 (CA) affd. (2005) 2 All ER 1 (HL).
90
See STREET, the Law of Torts, 10th Edition, pp. 95, 96.
91
Aldworth v. Stewart , (1866) 4 F & F 957; Hook v. Cunard Steamship Co. Ltd., (1953) 1 WLR 682 : (1953) 1
All ER 1021.
92
Tokyo Convention Act, 1967.
93
Lamb v. Burnett , (1831) 1 Cr & J 218.

1
PER BLACKBURN, J., in Mersey Docks Trustees v. Gibbs , (1866) LR 1 HL 93, 112; Hammersmith Ry. v.
Brand , (1869) LR 4 HL 171; East Fremantle Corporation v. Annois, (1902) AC 213; Quebec Ry. v. Vandry,
(1920) AC 662.
2
Allen v. Gulf Oil Refinery Ltd. , (1981) 1 All ER 353, p. 365 : (1980) QB 156 (HL) (LORD ROSKILL).
3
Manchester Corpn. v. Farnworth, (1930) AC 171 : 99 L.J.K.B. 83 : 142 LT 145 (HL).

4
PER LORD BLACKBURN in Metropolitan Asylum District v. Hill , (1881) 6 App Cas 193, at p. 203. See,
Suratee Bara Bazar Co. Ltd. v. Municipal Corporation of Rangoon , (1927) ILR 5 Ran 722, where the whole
case-law is discussed. In this case a statute imposed a duty on a Municipal Corporation to erect urinals and
water-closets for public use and the Corporation selected a site for the purpose. It was held that as the
Corporation had acted bona fide in the selection of the locality for a public latrine there was no case for an
Page 27 of 36
injunction as the latrine was not erected and had not become an actual nuisance by misuse or
mismanagement which the Corporation was bound to prevent. See, Nirmal Chandra Sanyal v. Pabna
Municipality , ILR (1937) 1 Cal 407, where a Corporation causing a public hackney carriage stand to be
erected on any street under a statute was held not liable even if the stand became a source of nuisance to
neighbours.
5
L. & N.W. Rly. v. Bradley , (1851) 3 Mac & G 336, 341. V. Foucar Brothers & Co. v. The Rangoon Municipal
Committee , (1897) 3 Burma LR 12; Bhogilal v. Ahmedabad Municipality , (1901) 3 Bom LR 415; Municipal
Committee, Delhi v. Har Parshad , (1892) PR No. 103 of 1892.
6
Mersey Docks Trustees v. Gibbs , (1866) LR 1 HL 93; Geddis v. Proprietors of Bann Reservior , (1878) 3
App Cas 430.
7
H.H. The Gaekwar v. Ghandhi Katcharabhai , (1900) 2 Bom LR 357 : (1901) ILR 25 Bom 243 : (1903) 5
Bom LR 405 : (1903) ILR 27 Bom 344 : (1903) 30 IA 60; Bhogilal v. Ahmedabad Municipality , (1901) 3
Bom LR 415; Rup Lal Singh v. Secretary of State for India , (1925) 7 Pat LT 463; Ramchand Ram Nagaram
Rice and Oil Mills Ltd., Gaya v. The Municipal Commissioner of the Purulia Municipality , (1943) ILR 22 Pat
359; Kali Krishna Narain v. The Municipal Board, Lucknow , (1943) ILR 19 Luck 95; Manohar Lal Sobha
Ram Gupta v. Madhya Pradesh Electricity Board, (1975) ACJ 494 (496) (MP).
8
Kailas Etc. Works v. Municipality, B & N , (1968) 70 Bom LR 554.

9
PER LORD WATSON in Metropolitan Asylum District v. Hill , (1881) 6 App Cas 193, 213; Canadian Pacific
Railway v. Parke, (1899) AC 535; Provender Millers (Winchester) Ltd. v. Southampton C.C., (1940) 1 Ch
131 : 161 L.T. 363. See , the judgment of BOWEN, LJ in Truman v. L.B. & S.C. Ry. Co. , (1885) 29 Ch D
89, 108; Faiyaz Husain v. Municipal Board, Amroha , ILR (1939) All 237.
10
PER LORD BLACKBURN in Metropolitan Asylum District v. Hill , (1881) 6 App Cas 193 (208).
11
Runchordas v. Municipal Commissioner of Bombay , (1901) 3 Bom LR 158; ILR 25 Bom 387. The
procedure laid down in a statute must be adhered to strictly; Clarke v. Brojendra Kishore Roy , (1909) ILR
36 Cal 433. See Brindabun v. Minicipal Commissioner of Serampore , (1873) 19 Suth WR 309.
12
See further text and notes 4-6, title 1, p. 621, Chapter XX.
13
(1930) AC 171 : 142 LT 145 (HL).

14
Manchester Corporation v. Farnworth, (1930) AC 171 (HL).

15
(1981) 1 All ER 353 : (1981) 2 WLR 188 (HL).

Page 28 of 36
16
Allen v. Gulf Oil Refining Ltd., (1981) 1 All ER 353 (HL), pp. 357, 358 : (1981) 2 WLR 188.
17
Allen v. Gulf Oil Refining Ltd ., (1981) 1 All ER 353 (356, 357, 358) : (1981) 2 WLR 188 (HL) (LORD
WILBERFORCE) 359 (LORD EDMUND DAVIES). See further Department of Transport v. North West
Water Authority , (1983) 3 All ER 273 (HL); Mareic v. Thames Water Utilities Ltd. , (2002) 2 All ER 55, p. 72
(CA).
18
Gas Light and Coke v. Vestry of St. Mary Abbats, Kensington, (1885) 15 QBD 1. See, Chichester
Corporation v. Foster, (1906) 1 KB 167.
19
The Marpesia , (1872) LR 4 PC 212; The Merchant Prince , (1892), p. 179; The Schewan; The Albano ,
(1892), p. 419, 432, 434.
20
Makin Ltd. v. L. & N.E. Rly ., (1943) 1 All ER 362 : 168 LT 394 : 59 T.L.R. 307.
21
Saner v. Bilton , (1878) 7 Ch D 815; Manchester Bonded Warehouse Co. v. Carr, (1880) 5 CPD 507;
Manindra Nath Mukerjee v. Mathuradas Chaturbhuj , (1945) 49 CWN 827, see, Steiert v. Kamma , (1891)
PR No. 3 of 1891, where a servant was held not liable for breaking a lamp.
22
PER LORD DUNEDIN in Fardon v. Harcourt-Rivington, (1932) 146 LT 391 (392) : 48 T.L.R. 215.
23
Nugent v. Smith, (1876) 1 CPD 423, 435; Forward v. Pittard , (1785) 1 TR 27.
24
Davis v. Saunders, (1772) 2 Chit 639 ; Holmes v. Mather , (1875) LR 10 Ex 261; Stanley v. Powell, (1891) 1
QB 86 : 39 WR 76.
25
Fowler v. Lanning , (1959) 1 All ER 290 : (1959) 2 WLR 241 : (1959) 1 QB 426; Letang v. Cooper , (1964) 2
All ER 929 (CA).
26
(1868) LR 3 HL 330.
27
(1987) 1 SCC 395 [LNIND 1986 SC 539]. See further , Chapter XIX title 2(c).
28
WINFIELD and JOLOWICZ, Tort, 18th edition, p. 718.
29
Nitro-Glycerine case, (1872) 15 Wallace 524.

30
Page 29 of 36
Brown v. Kendal , (1859) 6 Cussing 292.

31
Fardon v. Harcourt-Rivington, (1932) 48 TLR 215, 146 LT 391 : 76 S.J. 61.

32
Holmes v. Mather , (1875) LR 10 Ex 261, 267; Wakeman v. Robinson , (1823) 1 Bing 213.
33
Stanley v. Powell, (1891) 1 QB 86 : 63 LT 809.

34
Vide , POLLOCK, 15th edn., p. 140; BEVEN, 3rd edn., Preface, p. vi.
35
Hilton v. Eckersley , (1855) 6 E & B 47, 74, 75.

36
PER LORD LINDLEY, in Quinn v. Leathem, (1901) AC 495, 539 : 85 L.T. 289 : 17 T.L.R. 749.
37
Gloucester Grammar School , (1410) 11 Han IV, 47.

38
Mogul Steamship Co. v. Mcgregor, Gow & Co ., (1892) AC 25 : 40 W.R. 337.

39
PER LORD WATSON in Mayor, etc. of Bradford v. Pickles, (1895) AC 587.

40
Ballacorkish Silver, etc., Mining Co. v. Harrison , (1873) LR 5 PC 49, 61. See, Chasemore v. Richards,
(1859) 7 HLC 349 ; Acton v. Blundell , (1843) 12 M & W 324; Baird v. Williamson, (1863) 15 CBNS 376;
Smith v. Kenrick, (1849) 7 CB 515.
41
Smith v. Baker & Sons, (1891) AC 225 : 65 L.T. 467 (HL) referred to in Imperial Chemical Industries v.
Shatwell, (1965) AC 656.
42
Wooldridge v. Summer , (1962) 2 All ER 978 : (1963) 2 QB 43 (CA).

43
Ilott v. Wilkes , (1820) 3 B & Ald 304. As a result of this case setting spring guns except by night was made
an offence by 7 & 8 Geo. IV, c. 18, which is repealed and re-enacted by 24 & 25 Vic. c. 95.
44
Bird v. Holbrook , (1828) 4 Bin 628.

45
Bize v. Dickason , (1786) 1 TR 285 (287).

Page 30 of 36
46
Buckpitt v. Oates , (1968) 1 All ER 1145.

47
For competence to consent or refuse medical treatment see Cameron Stewart and Paul Beigler, ‘A Primer
on the law of competence to refuse medical treatment’, (2004) 78 ALJ 325.
48
(1985) 3 All ER 402 : (1986) AC 112 : (1985) 3 WLR 830 (HL).

49
Ibid.
50
Sidaway v. Bethlem Royal Hospital Governors , (1985) 1 All ER 543 : (1985) AC 871 (HL).
51
Ibid. Not followed in Australia see Rogers v. Whitaker, (1992) 175 CLR 475; Rosenberg v. Percival, (2001)
75 ALJR 734, pp. 735, 736. In Roger's case an eye surgeon's failure to warn the plaintiff of a 1 in 14,000
chance of blindness was held to be negligence. According to this case doctors have a duty to warn or
advise a patient of any material risk inherent in the treatment. See further, (2001) 75 ALJ 423 -426
(Medico's failure to warn).
52
464 F2d 772: 150 US App. DC 263 (1972).
53
(2008) 2 SCC 1 [LNIND 2008 SC 81] paras 48 to 50 : AIR 2008 SC 1385. Followed in Nizam's Institute of
Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 [LNIND 2009 SC 1292] : 2009 Crlj 3012 :
(2009) 6 JT 651.
54
Wooldridge v. Sumner , (1962) 2 All ER 978 : (1963) 2 QB 43 : (1963) 3 WLR 616 (CA).
55
Ibid. For injury to a person who is not a spectator see text and note 9, p. 504.
56
Rootes v. Shelton, (1968) ALR 33; Condon v. Basi , (1985) 2 All ER 453, p. 454 : (1985) 1 WLR 668 (CA).
57
Condon v. Basi, supra , p. 455.

58
Woods v. Multi Sports Holdings Pty. Ltd. , (2002) 76 ALJR 483.

59
Ibid.
60
PER BOWEN, L.J. in Thomas v. Quartermaine, (1887) 18 QBD 685 (696, 697).
Page 31 of 36
61
Osborne v. London and North Western Ry. Co ., (1888) 21 QBD 220 (223, 224); Letang v. Ottawa Electric
Ry. Co ., (1926) AC 725; South Indian Industrials Ltd., Madras v. Alamelu Ammal , (1923) MWN 344 (345).
62
Smith v. Baker & Sons, (1891) AC 325 : 65 L.T. 467 : 40 WR 392 (HL) referred to in Imperial Chemical
Industries v. Shatwell , (1964) 2 All ER 999 : (1965) AC 656 (HL).
63
Ibid.
64
Imperial Chemical Industries v. Shatwell , (1964) 2 All ER 999 (HL).

65
Ibid.
66
Lane v. Holloway , (1967) 3 All ER 129 : (1967) 3 WLR 1003 (CA).

67
Wheelar v. New Merton Board Mills, Ltd ., (1933) 2 KB 669 : 149 LT 587 : 49 T.L.R. 567; Baddeley v. Earl
Granville, (1887) 19 QBD 423.
68
Ibid.
69
Imperial Chemical Industries Ltd. v. Shatwell , (1964) 2 All ER 999, (1965) AC 656.
70
Haynes v. Harwood, (1935) 1 KB 146 (157) : 152 LT 121 : 51 T.L.R. 100; Dicta to the contrary in Cutler v.
United Dairies (London) Limited, (1933) 2 KB 297 : 149 LT 436, questioned.
71
Chadwick v. British Transport Corporation, (1967) 2 All ER 945.

72
Cutler v. United Dairies (London) Limited, (1933) 2 KB 297 : 149 LT 436.

73
Dann v. Hamilton, (1939) 1 KB 509 : 160 LT 433; Cleghorn v. Oldham , (1927) WM 147 : 43 TLR 465;
Wooldridge v. Sumner , (1962) 2 All ER 978 (CA).
74
Burnett v. British Water Ways Board , (1973) 2 All ER 631 (635) : (1973) 2 Lloyd's Rep. 137 : (1973) 1 WLR
700 (CA).
75
Ibid.
Page 32 of 36
76
Buckpitt v. Oates , (1968) 1 All ER 1145; Bennet v. Tugwell , (1971) 2 All ER 248; Birch v. Thomas , (1972)
1 All ER 905; Burnett v. British Water Ways Board , (1973) 2 All ER 631 (635) : (1973) 2 Lloyd's Rep. 137 :
(1973) 1 WLR 700.
77
Ashdown v. Samuel Williams & Sons Ltd ., (1957) 1 All ER 35; White v. Blackmore , (1972) 3 All ER 158;
Burnett v. British Water Ways Board , (1973) 2 All ER 631 (635) : (1973) 2 Lloyd's Rep. 137 : (1973) 1 WLR
700.
78
Burnett v. British Water Ways Board , (1973) 2 All ER 631, (635) : (1973) 2 Lloyd's Rep. 137 : (1973) 1
WLR 700.
79
Reeves v. Commissioner of Police of the Metropolis, (1998) 2 All ER 381 (CA) upheld in (1999) 3 All ER
897 (HL).
80
Corr v. IBC Vehicles, (2008) 2 All ER 943 (H.L.). For this case see further Chapter IX title 1(e) IV A.
81
Haynes v. Harwood, (1935) 1 KB 146 : 78 SJ 801.

82
Cutler v. United Dairies (London) Limred, (1933) 2 KB 297 : 149 LT 436.

83
Brandon v. Osborne Garett & Co ., (1924) 1KB 548.

84
Dann v. Hamilton, (1939) 1 KB 509 : (1939) 1 All ER 35.

85
Buckpitt v. Oates , (1968) 1 All ER 1145.

86
F v. West Berkshire Health Authority, (1989) 2 All ER 545, p. 564 (HL).

87
Governor, etc. of Cast Plate Manufacturers v. Meredith , (1792) 4 TR 794 (797).

88
South Port Corporation v. Esso Petrolium Co ., (1952) 2 All ER 1204 (QBD) affirmed 1956 AC 218 (HL);
“The necessity of saving life has at all times been considered a proper ground for inflicting such damage as
may be necessary upon another's property”. (DEVLIN, J.).
89
Maleverer v. Spinke , (1537) Dyer, (Part I), 356.

90
Page 33 of 36
Rigby v. Chief Constable , (1985) 2 All ER 985 (995) : (1985) WLR 1242.
91
London Borough of Southwark v. Williams , (1971) 2 All ER 175 (1971) 2 WLR 467; Mc Phail v. Persons
Unknown , (1973) 3 All ER 393 (CA).
92
De Keyser's Royal Hotel, Ltd. In re. De Keyser's Royal Hotel Ltd. v. The King , (1919) 2 Ch. 197, (1920) AC
508.
93
Burmah Oil Co. Ltd. v. Lord Advocate, (1965) AC 75 : (1964) 2 WLR 1231.
1
Olga Tells v. Bombay Municipal Corporation, (1985) 3 SCC 545 [LNIND 1985 SC 215], p. 585.
2
London Borough of Southwark v. Williams, (1971) Ch 734, p. 744 : (1971) 2 WLR 467 : (1971) 2 All ER
175; Mc Phail v. Persons Unknown , (1973) 3 All ER 393 : (1973) Ch 447; WEIR, 5th edn., p. 337.
3
See, text and note 1, supra . See further , UPAVAS EVAM VIKAS Parishad v. Friends Co-op. Housing
Society , 1995 (3) Scale 604 (SC), p. 606 (”Right to Shelter is a fundamental right which springs from the
right to residence assured in Article 19(1) e and right to life under Article 21 “).
4
Municipal Corporation Delhi v. Gurnam Kaur , AIR 1989 SC 38 : (1989) 1 SCC 101 [LNIND 1988 SC 441].
5

6
Ibid. , p. 1996.
7
Ibid.
8
Ibid., p. 1997. See second and third Sodan Singh cases relating to framing of scheme and allotment of sites
to hawkers : (1992) 2 SCC 458 [LNIND 1992 SC 256] : AIR 1992 SC 1153 and AIR 1998 SC 1174 [LNIND
1998 SC 143]. See in the same context for scheme for Bombay hawkers: Bombay Hawkers Union v.
Bombay Municipal Corporation , AIR 1985 SC 1204; Maharashtra Ekta Hawkers Union v. Municipal
Corporation Greater Mumbai , AIR 2004 SC 416 : (2004) 1 SCC 625 [LNIND 2007 SC 147]. See further,
Arignar Anna Bus Stand Small Scale Retail Trader's Association v. Commissioner Madurai Corporation ,
AIR 1988 Madras 71 [LNIND 1986 MAD 380], p. 77 (An encroacher of public property cannot claim an
alternative site as a precondition to his removal. “To do so would only mean placing a premium on
trespasser's encroachment on public property”); Grahak Sanstha Manch v. State of Maharashtra , AIR
1994 SC 2319 : JT 1994 (3) SC 474 [LNIND 1994 SC 452] (State Government cannot be compelled to
provide alternative accommodation to allottees of requisitioned premises when the premises are
derequisitioned); N. Jagdisan v. District Collector, AIR 1997 SC 1197 : (1997) 4 SCC 508 [LNIND 1997 SC
1921] (Removal of bunks and kiosks from medical institutions and from margins of important and busy
Page 34 of 36
roads was upheld); Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 1 Scale 770 pp.
776, 784 : AIR 1997 SC 152 : (1997) 11 SCC 121 [LNIND 1996 SC 1685] (It cannot be laid down that in
every case the encroacher of public property must be provided with alternative shelter before he is ejected).
9
Ram Prasad Yadav v. Chairman Bombay Port Trust , AIR 1989 SC 1306.
10
Harrow London Be v. Qazi , (2003) 4 All ER 461.

11
Connors v. U.K., (2004) 16 BHRC 639.

12
(2005) 3 All ER 573 (CA).
13
Cope v. Sharpe (No. 2), (1912) 1 KB 496 : 81 LJKB 346 : 106 LT 56.
14
F v. West Berkshire Health Authority, (1989) 2 All ER 545, p. 564 : (1990) 2 AC 1 : (1989) 2 WLR 1025
(HL).
15
Ibid., pp. 566, 567.

16
Bournewood Community and Mental Health Trust, (1998) 3 All ER 289, pp. 301, 302 (HL).
17
Anonymous Case , 168 ER 1075 (PARKE B.) WEIR Casebook on Tort, (5th edition), p. 329.
18
Anderson v. Marshall , (1835) 13 S 1130, WEIR (5th edition), p. 329.

19
Reece v. Toylor , (1835) 4 N & M 469 Cockeroft v. Smith , (1705) 11 Mod 43 (HOLT CJ).
20
Janson v. Brown , (1807) 1 Camp 41; Wells v. Head , (1831) 4 C & P 568. For example, see, Tounley v.
Rushworth, (1963) 62 LGR 95, WEIR, p. 329; Collins v. Renison , 96 ER 830, WEIR, (5th edition), p. 331;
Whatford v. Carty, The Times Oct. 29, 1960, WEIR, (5th edition), p. 332. See further, Debendra Bhoi v.
Meghu Bhoi , AIR 1986 Ori 226 [LNIND 1986 ORI 59].
21
Greyvensteyn v. Hattingh, (1911) AC 355 : 80 LJPC 158 : 104 LT 360; Shanker v. Laxman , ILR (1938)
Nag 289.
22
Sami Ullah v. Mukund Lal , (1921) 19 ALJR 736.

23
Page 35 of 36
PER LINDLEY, L.J. in Whalley v. Lanca & York. Ry. Co ., (1884) 13 QBD 131 (140, 141); Moholal v.
Baijivkare , (1904) ILR 28 Bom 472 : 6 Bom LR 529.
24
Sarch v. Blackburn , (1830) 4 C & P 297.

25
Bird v. Holbrook , (1828) 4 Bing 628.

26
Cherubin Gregory v. State of Bihar , AIR 1964 SC 205 : (1964) 4 SCR 199 [LNIND 1963 SC 175] : (1964) 1
Cr LJ 138; Ramanuj Madali v. M. Gangan , AIR 1984 Mad 103 [LNIND 1983 MAD 52].
27
Morris v. Nugent , (1836) 7 C & P 572.

28
Curswell v. Sirl , (1947) 2 All ER 730 (CA).

29
Turner v. Jogmohan Singh , (1905) ILR 27 All 531.

30
POLLOCK, 15th Edition, p. 126.
31
Barnes v. Ward, (1850) 9 CB 392, (420) : 14 Jur 334.

32
Bird v. Holbrook , (1828) 4 Bing 628.

33
(1954) 1 All ER 546 : (1954) 1 All ER 546 (HL).
34
Ibid. , p. 548.
35
(1987) 2 All ER 651 : (1987) 1 WLR 1166 : (1987) 131 S.J. 1039 (CA).
36
Ibid. , p. 660.
37
Jackson v. Harrison , (1978) 138 CLR 438 (High Court of Australia), pp. 455-456 (MASON J).
38
(1990) 3 All ER 344 : (1991) 1 QB 24 : (1990) 3 WLR 542 (CA). See, Gala v. Preston , (1991) 65 ALJR 366
(High Court of Australia) where a person was injured because of the negligent driving of an associate while
engaged in the joint criminal activity of ‘joy riding’ in a car they had stolen and it was held that there would
be no liability.
Page 36 of 36
39
Illustration to s. 26 of the Indian Civil Wrongs Bill.
40
Holford v. Bailey , (1849) 18 LJ QB 109.
End of Document
CHAPTER VI DEATH IN RELATION TO TORTS
1. COMMON LAW
THE common law maxim is actio personalis moritur cum persona (a personal right of action dies with the person).
At common law, if an injury were done either to the person or property of another, for which damages only could be
recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done. 1 As regards
all actions essentially based on tort, the principle was inflexibly applied. 2 It is not known when this principle came
into being, for its genesis is hidden in the mists of antiquity. From time to time it had been severely animadverted on
by Judges for it is neither based upon justice nor common sense. In Official Liquidator of Supreme Bank Ltd. v. P.A.
Tendolkar , 3 the Supreme Court pointed out that the maxim was “an invention of English common lawyers” and
observed: “It seemed to have resulted from the strong quasi criminal character of the action for trespass. Just like a
prosecution for criminal offence, the action for trespass, which was the parent of much of our modern law of tort
was held, by applying this maxim, to be incapable of surviving the death of the wrongdoer, and, in some cases,
even of the party injured. The maxim, with its extension, was criticised by Winfield and found to be pregnant with a
good deal of more mischief than was ever born of it.” 4 The Supreme Court further pointed out that the maxim did
not apply to actions based in contract or where a tort-feasor`s estate had benefited from a wrong-done. 5 The
maxim has also no application to suits for eviction under the Rent Control Acts 6 and to industrial disputes
undersections 2A and 33C(2) of the Industrial Disputes Act, 1947.7
Further, at common law, no one can recover damages for the death of another. This is known as the rule in Baker
v. Bolton. 8 “In a Civil Court, the death of a human being could not be complained of as an injury” 9 — meaning an
actionable injury. A husband, parent, or master cannot recover damages in respect of instantaneous death of a
wife, 10 child, 11 or servant. 12 If there is an interval between the wrongful act and the death, damages may only
be recovered for loss of society or services up to the time of death. In Baker's case the plaintiff and his wife were
passengers on the top of a stage-coach belonging to the defendants. Owing to the negligence of the defendants the
stage-coach was over-turned and the plaintiff was much bruised and his wife was so severely hurt that she died a
month after. It was held that the plaintiff was entitled to damages for the bruises sustained by him and for the loss of
the wife's society only till the moment of her death. But the rule in Baker's case does not apply where the cause of
action is based upon the breach of a contract. In an action for breach of a warranty that tinned salmon sold by the
defendants to the plaintiff was fit for consumption as human food, the plaintiff claimed damages on the ground that
his wife having partaken of the salmon had in consequence died, and that, she having performed services for him in
the care of his house and family until her death, he was under the necessity after her death of hiring someone else
to perform such services. It was held that such damages were recoverable. 13
2. STATUTORY MODIFICATIONS
Page 2 of 35
2(A) English Law
Under the Law Reform (Miscellaneous Provisions) Act, 1934, 14 on the death of any person all causes of action
subsisting against or vested in him shall survive against or for the benefit of his estate, except action for defamation.
15 Where a cause of action survives (1) the damages recoverable shall not include exemplary damages nor any
income in respect of any period after the victim's death; 16 (2) where the death of that person is caused by the act
or omission giving rise to the cause of action, the damages shall be calculated without reference to any loss or gain
to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. 17 The
object of the Act is to abolish the common law rule expressed in the maxim actio personalis moritur cum persona
and to provide for the survival of causes of action subsisting at the time of the death of the person wronged or the
wrongdoer. The object is not to create a cause of action for death itself or to affect the common law rule recognised
in Baker's case that no such cause of action exists.
The rule in Baker's case was overturned by the Fatal Accidents Act, 1846, known as LORD CAMPBELL'S Act, for
those dependants who were specified in the Act. The present Act is the Fatal Accidents Act, 1976 which
consolidates the earlier Acts. The Act provides that whenever the death of a person is caused by the wrongful act,
neglect or default of another, such as would (if death had not ensued) have entitled the injured person to sue and
recover damages in respect thereof, then the person who would have been liable if death had not ensued shall be
liable to an action for damages on behalf of the dependants, notwithstanding the death of the person injured. The
list of dependants has been enlarged18 since it was first defined and now includes the following: (a) The spouse or
former spouse of the deceased, or person who was living in the same household, immediately before the date of
the death and had been so living for at least two years; (b) any parent or other ascendent of the deceased or
person treated by the deceased as his parent; (c) any child or other descendent of the deceased or any person who
has been treated by the deceased as a child of the family in relation to any marriage of the deceased; and (d) any
person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased. An adopted person is to be treated
as the child of the person by whom he was adopted, a relationship by affinity as one of consanguinity and a
relationship of the halfblood as a relationship of the whole-blood. The step-child of any person is to be treated as his
child and an illegitimate person as legitimate child of his mother and reputed father. The Fatal Accidents Act
provides a new cause of action in favour of the dependants of the deceased19 as distinguished from continuation or
survival of a cause of action existing in favour of the deceased for the benefit of his estate as is provided by the Law
Reform (Miscellaneous Provisions) Act, 1934. Under the Fatal Accidents Act in respect of death after 1982, the
spouse of the deceased or the parents of the deceased if he was an unmarried minor may claim a fixed sum of
3,50019a as damages for bereavement. In addition the dependants are entitled to damages proportioned to the
injury resulting from the death to them.
2(B) Indian Law
The first legislation in India on this subject was enacted in 1855. In that year an Act was passed called the Legal
Representatives’ Suits Act, being Act XII of 1855. It was assumed by the Legislature that the maxim actio
personalis moritur cum persona applied in India, for the preamble to the Act says: “Whereas it is expedient to
enable executors, administrators or representatives in certain cases to sue and be sued in respect of certain
wrongs which, according to the present law , do not survive to or against such executors, administrators or
representatives”. The Act then proceeds to provide for actions by the representative of a deceased person, and
actions against the representative of a deceased person.
Under Act XII of 1855 an action may be maintained by the executors, administrators or representatives of a
deceased person for any wrong committed in the lifetime of the deceased which has occasioned pecuniary loss to
the estate of such person (and for no other wrong), committed within one year before his death.
Then came the Indian Succession Act, 1865, and the Probate and Administration Act, 1881. Both these Acts
contained a section which is now reproduced as s. 306 of the Indian Succession Act, 1925. The material portion of
that section is as follows :—
Page 3 of 35
“All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of
or against a person at the time of his decease survive to and against his executors or administrators; except causes
of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the
death of the party”
The Calcutta High Court held that the words “personal injuries” refer only to physical injuries. A cause of action for
malicious prosecution, therefore, survived to the representatives of a deceased plaintiff. 20 The Rangoon High
Court has adopted the same meaning of the words ‘personal injuries.’ They meant corporal or bodily injuries,
injuries to person as opposed to injuries to property or reputation. A cause of action in respect of injury to the credit
and reputation of a person survived against the executors and administrators of the estate of the deceased
defendant but not against his heirs as the latter term is not included in the former unders. 306 of the Indian
Succession Act. 21 On the other hand the Madras High Court has, in a Full Bench case, laid down that the
expression “personal injuries not causing the death of the party” does not mean injuries to the body merely, but all
injuries which do not necessarily cause damage to the estate of the person wronged. A suit for malicious
prosecution, therefore, abated on the death of the defendant. 22 The Patna, 23 the Bombay, 24 the Allahabad, 25
the Nagpur, 26 the Madhya Pradesh 27 and the Andhra Pradesh 28 High Courts have adopted the view of the
Madras High Court. The controversy was finally resolved by the Supreme Court in M. Veerappa v. Evelyn Sequeira
, 29 by approving the view of the Madras High Court and overruling that of the Calcutta and Rangoon High Courts.
So the settled view now is that the expression “personal injuries” does not mean ‘injuries to the body alone but all
injuries to a person other than those which cause death and the expression is to be read ejusdem generis with the
words “defamation” and “assault” and not with “assault” alone. 30 So the right of a father to sue for compensation
for the seduction of his daughter is a personal right and dies with the father. If a suit is filed by the father, it abates
on his death and no legal representative can continue it. 31 The rule actio personalis moritur cum persona is not
interfered with merely because the person injured incurred in his lifetime some expenditure of money in
consequence of the personal injury. 32 The Supreme Court in Official Liquidator, Supreme Bank Ltd. v. P.A.
Tendolkar, 33 pointed out that the application of the maxim was generally confined to actions for damages for
defamation, seduction, inducing spouse to remain apart from the other and adultery and that it had no application to
actions based on contract or where a trespasser's estate had benefited from a wrong done. It was also pointed out
that there was no reason to extend the maxim to cases involving breaches of fiduciary duties or to the case of a
Director whose personal conduct had been fully enquired into and the only question for determination, on an
appeal, was the extent of the liability incurred by the deceased Director. 34 In M. Veerappa v. Evelyn Sequeria , 35
also the Supreme Court pointed out that the maxim is inapplicable in those cases where the injury caused to the
deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrongdoer or
where the cause of action arises out of breach of contract. The maxim has also no application when the claim is
decreed and the plaintiff dies pending an appeal against the decree. The reason is that the claim becomes merged
in the decree and the decretal debt forms part of the plaintiff's estate devolving on his death on his heirs, executors
or administrators. 36 For example, if a suit for defamation is decreed and the plaintiff dies pending an appeal
against the decree, the suit will not abate but if the suit is dismissed and the plaintiff dies pending an appeal filed by
him, the appeal will abate. 37 Similarly the maxim does not apply when the defendant dies after decree pending an
appeal filed by him. 38
If personal injuries cause the death of the party injured, the cause of death does not abate. If there is no break in
the chain of causation, death resulting years after the injuries were received may still be held to have been caused
by the injuries if they materially contributed to the death by directly hastening or accelerating it. In Klaus
Mittelbachert v. The East India Hotels Ltd. 39 the plaintiff, a German national suffered serious personal injuries on
August 13, 1972 in a swimming pool while staying in Hotel Oberoi of New Delhi. The plaintiff filed a suit for recovery
of damages for personal injuries in the High Court of Delhi on August 11, 1975. The plaintiff died during the
pendency of the suit on September 27, 1985, thirteen years after the injuries were received. The injuries suffered by
the plaintiff had made him tetraplegic. The immediate cause of death was cardiac arrest which according to the
medical evidence, which was accepted by the Court, was caused by the tetraplegic condition. The court, therefore,
held that the death was caused by the personal injuries suffered in the swimming pool and the cause of action did
not abate and could be continued by the legal representatives. It was also held alternatively that the suit was based
on contract with the hotel management and for this reason also it did not abate. 40
Page 4 of 35
The Indian counterpart of LORD CAMPBELL'S Act is the Fatal Accidents Act, 1855. Section 1A of the Act provides
that whenever the death of a person shall be caused by wrongful act, neglect or default, the party who would have
been liable if death had not ensued shall be liable to an action for damages, and such action shall be for the benefit
of the wife, husband, parent and child, if any, of the deceased person; and in every such action, the Court may give
such damages as it may think proportioned to the loss resulting from such death to the parties respectively for
whose benefit such action shall be brought. ‘Parent’ includes father, mother, grandfather and grandmother and
‘child’ includes son, daughter, grandson, grand-daughter, step-son and step-daughter. The action must be brought
by and in the name of the executor, administrator or representative of the deceased. The relations mentioned above
even if not legal representatives are representatives for purposes of the Act.41 A legal representative who is not
one of the relations mentioned in section 1A can also sue under that section for the benefit of those relations who
are mentioned therein. 42 Section 2 of the Act provides that only one action can be brought for, and in respect of
the same subject-matter of complaint but the proviso to the section enables the representatives of the deceased to
insert in the action a claim for any pecuniary loss to the estate of the deceased occasioned by the wrongful act or
neglect or default. The proviso does not find place in the corresponding English Act, but similar damages in English
law can be recovered for the benefit of the estate of the deceased under the Law Reform (Miscellaneous
Provisions) Act, 1934. There are two separate and distinct causes of action, which are maintainable in
consequence of a person's death, namely, “the dependent's claim for the financial loss suffered and a claim for
injury, loss or damage, which the deceased would have had, had he lived, and which survives for the benefit of the
estate.” 43 Provision for damages for mere bereavement which now finds place in the English Act does not find
place in the Indian Act. The Supreme Court has noticed that although the English Act has undergone substantial
changes, the Indian Act has remained static and needs drastic amendments. 44
3. DAMAGES RECOVERABLE
It has been said that the damages assessed must answer “what contemporary society would allow the wrongdoer
to hold up his head among his neighbours and say with their approval that he has done the fair thing”, and that “the
amount awarded must not be niggardly since the law values life and limb in a free society in generous scales.”
These emotive statements only mean that the sum awarded must be fair and reasonable by accepted legal
standards. 45 These legal standards are discussed below.
3(A) For loss of dependency
As earlier mentioned, the Fatal Accidents Acts provide a new cause of action.46 The claim under the Acts is for
injuriously affecting the family of the deceased. It is not a claim which the deceased could have pursued in his own
lifetime because the claim is for damages suffered not by himself but by his dependants after his death. 47 This is
an entirely new cause of action in favour of the dependants mentioned in the Acts. But to determine whether any
such cause of action arises under the Acts one has to consider a hypothetical question that had the deceased not
died but survived could he have sued for his injury. The basis of the action is the causing of death by wrongful act,
neglect or default and the ability of the deceased to sue the defendant for damages had death not ensued. If,
therefore, the deceased himself was wholly responsible for his death in the sense that his negligence alone had
resulted in his death, there will be no cause of action under the Acts. The Acts do not provide for a liability on no
fault basis and wrongful act, neglect or default of the defendant or of some person for whom he is vicariously liable
is necessary to be established to maintain an action under the Acts. Again, if in spite of the fact that the defendant's
fault caused the injury, the deceased, had death not ensued, could not have sued him, for example when any
possibility of liability had been excluded by a valid contract between them, 48 the dependants will not get any
cause of action under the Acts. Further, if the deceased himself was partly responsible for the accident because he
too was negligent, the damages recoverable by the dependants will be proportionately reduced. 49
The Acts do not provide the principle on which damages are to be assessed. The English Act merely says that
“damages may be awarded as are proportioned to the injury resulting from the death to the dependants
Page 5 of 35
respectively.” 50 The Indian Act similarly says that “the Court may give such damages as it may think proportioned
to the loss resulting from such death to the parties respectively.” 51
The principle of assessment silent in these Acts was formulated by POLLOCK C.B. according to which damages
are assessed “in reference to a reasonable expectation of pecuniary benefit as of right or otherwise from the
continuance of life”. 52 It is this basic principle which, expanded into various rules, 53 is followed even now in
assessing damages. The dependants for whose benefit the right exists should show some appreciable pecuniary
damage at the time or prospective to themselves owing to the death of the deceased. 54 Speaking generally, no
action can be maintained for any pain or suffering arising from the loss of the deceased 55 or loss of society 56 or
if the deceased had accepted satisfaction for his injuries in his lifetime, 57 or if the loss arises not from the
relationship, but through some contract with the deceased. 58 The damages are given in reference to a pecuniary
loss, they are not given as a solatium, that is to say, for injured feelings. 59 There is no question here of what may
be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and
pence, subject to the element of reasonable future probabilities. 60 The common law has never awarded damages
for the pain of bereavement. 61 The English Act, however, as amended in 1982, now provides for a claim for
bereavement to the extent of 7,500, (a) for the benefit of the wife or husband of the deceased; and (b) where the
deceased was a minor who was never married, for the benefit (i) of his parents, if he was legitimate and (ii) of his
mother if he was illegitimate. The Indian Act contains no parallel provision of this nature. But Indian cases have
generally granted damages for loss of consortium. 62 Recent development of the common law also allows a
person to recover damages for nervous shock i.e., positive psychiatric illness suffered by him as a result of seeing
or hearing of the death of or injuries caused to his close relative such as parent or child, husband or wife in
exceptional circumstances, 63 but this is not on the basis of the Acts. Horror and fear for oneself or for others are
emotions which can no doubt be described as suffering but they do not sound in damages. It is only when they
result in recognisable psychiatric injury that an action lies for such injury not for the fear or horror. 64 Thus a
mother claiming damages as dependant and legal representative of her son who died in a motor accident which
was not witnessed by her cannot be allowed damages for mental shock, agony or pain not resulting in any
recognizable psychiatric illness. 65
It is not necessary for a claim to succeed under the Acts that the deceased should have been earning money or
moneys worth or contributing to the support of the plaintiff at or before the date of death provided that the plaintiff
had a reasonable expectation of service or pecuniary benefit from the continuance of life. 66 So, the parents were
allowed to claim damages when their daughter aged 16 67 or son aged 19 68 was on the date of death on the eve
of completing successfully an apprenticeship or a course of training and there was reasonable prospect of
pecuniary benefit from the deceased for support of the family in the near future. But although as a general rule
parents are entitled to recover the present cash value of the prospective service or pecuniary benefit from the
deceased, no damages at all may be allowed when that prospect is very uncertain, e.g., when the deceased was a
child aged four of poor health 69 or nominal damages may be allowed when the prospect is there but the nature
and quality of assistance is uncertain e.g., when the deceased was a bright boy aged eight years, only a sum of Rs.
5,000 was allowed to his parents as damages. 70 It is also not necessary that the deceased should have been
rendering pecuniary assistance, or there may be prospect of pecuniary assistance, and rendering of gratuitous
domestic service or a reasonable prospect of that service in future will enable the family members to lay a claim
under the Acts for the cash value of the prospective service expected from the deceased. For example, the
gratuitous services rendered by a wife or mother in the home are equivalent to pecuniary benefit for which damages
can be claimed. 71 The dependants can claim damages for the gratuitous services of the deceased even though
they do not engage any substitute for performance of those services and perform the same themselves or even
though some others come forward to gratuitously perform those services. 72 Similarly the supervisory services of
an ‘owner manager’ of family lands or business such as the father qualify for award of damages even when the
entire lands or the business remain after his death with the dependants. 73 In assessing the value of such services
to the dependants an estimate is made of the expenses required for engaging a paid manager who would take
extra care like the owner for increasing the income and the value of the property, and a deduction is made from this
estimate of the money the deceased would have spent for himself. 74
Damages are not restricted to the deprivation of the amount which the deceased would have spent from his
earnings on the dependants but will cover deprivation of benefit from a fund to which the deceased and his
Page 6 of 35
employer would have contributed such as a Contributory Provident Fund. 75 In assessing damages to the
dependents the income of the deceased should be taken to cover, besides his salary, all perks and facilities
provided by the employer which benefit the entire family. 76
77 The assessment of damages to compensate the dependants is beset with difficulties because from the nature of
things, it has to take into account many imponderables, e.g. , the life expectancy of the deceased and the
dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he
would have contributed to the dependants during that period, the chances that the deceased may not have lived or
the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the
deceased might have got better employment or income or might have lost his employment or income altogether.
76-A1 The House of Lords has formulated certain rules for guidance of courts and to canalise the speculation and
uncertainty involved in the assessment of the final figure to be awarded to the dependants. In Davies v. Powell
Duffryn Associated Collieries Ltd ., 78 LORD WRIGHT expressed the rule in these words: “The starting point is the
amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the
regularity of his employment. Then there is an estimate of how much was required or expended for his own
personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a
lump sum by taking a number of years’ purchase. That sum, however, has to be taxed down by having regard to the
uncertainties”. Similar method was advocated by LORD SUMNER in Nance v. British Columbia Electric Railway Co.
Ltd . 79 and by the Supreme Court in Gobald Motor Service v. Veluswami , 80 Municipal Corporation of Delhi v.
Subhagwanti 81 and C.K. Subramania Iyer v. T. Kunhikuttan Nair . 82 In practice, however, the final figure is not
arrived at in two stages. After settling the figure of annual dependency, it is usual to multiply it with a multiplier, the
number of years’ purchase; the multiplier selected is so reduced that it in itself takes into account all considerations
for the reduction of the sum to be awarded. 83 In cases where the annual dependency is likely to vary in future,
one method is to take the figure of present annual dependency intact and to alter up or down the multiplier; another
method is to settle the figure of annual dependency in such a manner that it also represents anticipated future
variations. 84 This practice met the approval of House of Lords in Mallet v. Mcmonagle 85 and subsequent cases.
86 Mallet's case was cited with approval by the Supreme Court in M.P.S.R.T. Corporation v. Sudhakar 87 and in
General Manager Kerala State Road Transport Corporation v. Mrs. Susamma Thomas . 88 A Division Bench of the
Madhya Pradesh High Court 89 summed up the legal position as settled by these cases as follows: “The object in
assessment of damages is to find out the capital sum required to purchase an annuity for an amount equal to the
annual value of the benefits with which the deceased had provided his dependants while he lived and for such
period as it could reasonably be estimated that they would have continued to enjoy them but for his premature
death. Such a capital sum is expressed as the product of multiplying an annual sum which represents the
dependency by a number of ‘years’ purchase. This latter figure is less than the number of years which represents
the period for which it is estimated that the dependants would have continued to enjoy the benefit of the
dependency, since the capital sum will not be exhausted until the end of that period and in the meantime so much
of it as is not yet exhausted in each year will earn interest from which the dependency for that period could in part
be met. The House of Lords in Cookson v. Knowles , (1978) 2 All ER 604, have made one modification. The
modification is that the damages should be split into two parts, (a) the pecuniary loss estimated to be sustained by
the dependants from the date of death until the date of trial and (b) the pecuniary loss which the dependants would
sustain from the trial onwards. This course has been suggested having regard to the practice of frequent wage
increase due to inflation. In other words annual dependency at the trial should be fixed having regard to the
increase in wages up to that date and damages up to that date should be calculated. The annual dependency so
determined has further to be used for calculating post trial damages without taking into account the change in
dependency due to inflation on the reasoning that the valuation of the annuity is made on the basis of low interest
rates such as 4 to 5% and this involves a higher number of years’ purchase. The capital sum so worked out is much
more than what it would be at the current rate of interest and this counterbalances for future inflation.” 90 The
multiplier has to be selected once for all as at the date of death, because everything that might have happened to
the deceased after that date remains uncertain. 91 Thus if 11 is the multiplier selected, with reference to the date of
death and if the trial ends 2 years after that date, 2 is to be used for pretrial damages, and 8 for calculating post trial
damages. 92 The considerations generally relevant in the selection of multiplier and multiplicand were adverted to
by LORD DIPLOCK in his speech in Mallet's case, 93 where the deceased was aged 25 and left behind his widow
of about the same age and three minor children. On the question of selection of multiplier, LORD DIPLOCK said:
Page 7 of 35
“The starting point in any estimate of the number of years that a dependency would have endured is the number of
years between the date of the deceased's death and that at which he would have reached normal retiring age. That
falls to be reduced to take account of the chances not only that he might not have lived until retiring age but also the
chance that by illness or injury he might have been disabled from gainful occupation. There is also the chance that
the widow may die before the deceased would have reached the normal retiring age—or that she may remarry and
thus replace her dependency from some other source which would not have been available to her had her husband
lived. The prospects of remarriage may be affected by the amount of the award of damages. But in so far as the
chances that death or incapacitating illness or injury would bring the dependency to an end increase in later years
when, from the nature of the arithmetical calculation their effect on the present capital value of the annual
dependency diminishes, a small allowance for them may be sufficient where the deceased and his widow were
young and in good health at the date of his death. Similarly, even in the case of a young widow the prospect of
remarriage may be thought to be reduced by the existence of several young children to a point at which little
account need be taken of this factor. In cases such as the present where the deceased was aged 25 and the
appellant, his widow, about the same age, Courts have not infrequently awarded 16 years’ purchase of the
dependency. It is seldom that this number of years purchase is exceeded. It represents the capital value of an
annuity certain for a period of 26 years at interest rates of 4 per cent; 29 years at interest rates of 4 per cent, or 33
years at interest rates of 5 per cent. Having regard to the uncertainties to be taken into account, 16 years would
appear to represent a reasonable maximum number of years’ purchase where the deceased died in his twenties.”
94 As to the selection of the figure of dependency LORD DIPLOCK observed: “The starting point in any estimate of
the ‘dependency’ is the annual value of the material benefits provided for the dependants out of the earnings of the
deceased at the date of his death. But there are many factors which might have led to variations up or down in the
future. His earnings might have increased and with them the amount provided by him for his dependants. They
might have diminished with a recession in trade or he might have had spells of unemployment. As his children grew
up and became independent the proportion of his earnings spent on his dependants would have been likely to fall.
But in considering the effect to be given in the award of damages to possible variations in the dependency there are
two factors to be borne in mind. The first is that the moreremote in future is the anticipated change, the less
confidence there can be in the chances of its occurring and the smaller the allowance to be made for it in the
assessment. The second is that as a matter of arithmetic of the calculation of the present value, the later the
change takes place, the less will be its effect on the total award of damages. Thus, at interest rate of 4 per cent the
present value of an annuity for 20 years of which the first ten years are at 100 per annum and the second ten years
at 200 per annum is about 12 years’ purchase of the arithmetical average annuity of 150 per annum, whereas if the
first ten years are at 200 per annum and the second ten years at 100 per annum, the present value is about 14
years’ purchase of the arithmetical mean of 150 per annum. If, therefore, the chances of variations in the
‘dependency’ are to be reflected in the multiplicand of which the years’ purchase is the multiplier, variations in the
dependency which are not expected to take place until after ten years should have only a relatively small effect in
increasing or diminishing the ‘dependency’ used for assessing the damages.” 1 As already noticed increase in
earning capacity of the deceased because of inflation and consequent increase in dependency is not to be
separately considered in fixing the figure of annual dependency as it is taken care of by selecting a multiplier at the
interest rate of 4 to 5 per cent which involves a higher number of years’ purchase than at the current interest rate.
The capital sum so worked out is much more than what it would be at the current rates of interest and this
reasonably takes care of future inflation and its uncertainties. 2 LORD DIPLOCK in the passage quoted above
suggested that the multiplier of 16 was ‘seldom exceeded’ 3 “for the convincing reasons which he demonstrated by
reference to annuity values at different rates of interest.” 4 The passages from LORD DIPLOCK'S speech in
Mallet's case extracted above were cited with approval by the Supreme Court in General Manager Kerala State
Road Transport Corporation v. Mrs. Susamma Thomas , 5 and it was observed that the “multiplier method is
logically sound and legally well established.” 6 It is also well settled that the life expectancy of the deceased or the
beneficiaries whichever is shorter is to be taken into account in settling the multiplier. 7
In Cookson's case 8 the deceased husband was 49 and the multiplier applied was 11. In Graham's case 9 where
the deceased husband was 41, the House of Lords held that 18 was an excessive multiplier and so the award was
quashed and a new trial was ordered. In the case of Municipal Corporation Greater Bombay v. Laxman Narain 10
the deceased was aged 18, the claiments, his parerts, were aged 47 and 43 and the multiplier applied was so. In
Municipal Corporation of Delhi v. Subhagwanti , 11 three suits were decided together and in each case the
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multiplier applied was 15. In one of the suits the deceased was aged 30 and in another the deceased was aged 40
or 42 and the damages in these suits were claimed by the widow and minor children. The facts of the third suit do
not clearly appear from the judgment. Multiplier of 15 was also applied in Sheikhpura Transport Co. v. Northern
India Transporters Insurance Company , 12 where the deceased were aged 42-43 and had left behind widow and
minor children as dependants. But in Madhya Pradesh Road Transport Corporation v. Sudhakar , 13 where the
deceased wife who was in service was aged 23, a multiplier of 20 was applied on the basis that she would have
been in service for a period of 35 years. Although Mallet's case 14 was cited with approval in Sudhakar's case 15 ,
attention of the Court does not appear to have been drawn to the reasoning of LORD DIPLOCK regarding the
selection of multiplier. The Supreme Court in National Insurance Corporation v. M/s. Swarnlata Das , 16 where the
deceased aged 26 left behind his parents and widow as dependants applied a multiplier of 15 saying that it would
be the appropriate multiplier having regard to the age of the deceased. In Susamma's case, where the deceased
was aged 39, the Supreme Court applied 12 as the multiplier being “appropriate to the age of the deceased” 17
and in the cases of Sarla Devi 18 and Sushila Devi 19 where the deceased were respectively aged 30 and 27
years multiplier of 15 was applied in both the cases by the Supreme Court. In Kamala Devi v. Kishanchand , 20
and State v. Devi Rawat , 21 the deceased were in Government service and were aged 34-35 and had left behind
widow and children. The High Court of Madhya Pradesh after a discussion of the relevant principles applied the
multiplier of 15 in both these cases. In Lachman Singh and others v. Gurmit Kaur , 22 where the deceased was
aged 23, a multiplier of 16 was applied by a Full Bench of the Punjab and Haryana High Court.
The multipliers indicated in the second schedule to the Motor Vehicles Act, 1988 may be taken as guides, though
the table has been held to be directory and has no application to motor accidents where the income of the
deceased was more than Rs. 40,000 per annum. It has also been held that the multiplier may be suitably reduced if
the multiplicand is considerably large. In the case23 where these principles were laid down the victim of a motor
accident was a doctor who had established a huge practice in America. The deceased aged 47-48 had left behind
his wife two daughters aged 19 and 17, a son aged 13 and parents aged 73/69 residing in Delhi. The annual
dependency worked out to 2, 26, 297 US Dollars. The multiplier indicated in the second schedule was 13 but having
regard to the huge amount of compensation that it would have yielded, the multiplier applied was 10. 24
The low interest rate of 4 to 5 per cent which is generally taken into account in settling the multiplier roughly
represents the real rate which is the constant difference, valid for the past and future as well, between the current
returns on income and property and the rate of future inflation. In Bhagwandas v. Mohd. Arif , 25 JAGANNADHA
RAO J. of the Andhra Pradesh High Court, as he then was, after referring to the available data, adopted a rate of 4
per cent as the real rate. In the same case, it was also held that instead of selecting a multiplier from experience or
annuity tables, a multiplier from Actuary's tables should be applied. But as there is no such published table in India,
the learned judge himself constructed a table for urban males in India. 26 May be, that the surest way of
ascertaining the present value of future contributions towards dependency is to select a multiplier from the
combined annuity and life expectancy tables, but normally the courts in India prefer the haphazard method of
selecting a multiplier based on practice and experience, though they are prepared to check their assessment
against the available statistical data. 27
The House of Lords 28 in personal injury cases recently accepted the recommendation of the Law Commission in
Report No. 224 (1994) that the multiplier should be fixed with reference to the return of Index Linked Government
Stock (ILGS) which yield a net return of 3% and not, as was then the current practice, with reference to interest rate
of 4 to 5 percent. It was also held that actuarial tables should be used as the starting point in settling the multiplier.
It may be expected that the same view will be taken in fatal accident cases. It is yet to be seen as to how the Indian
courts especially the Supreme Court will react to this decision of the House of Lords. ILGS were first introduced in
U.K. in 1981. The return of income and capital on ILGS are fully protected against inflation. Thus the purchaser of
100 of ILGS with a maturity date of 2020 knows that his investment will then be worth 100 + x% of 100, where x
represents the percentage increase in the retail price between the date of issue and date of maturity. 29 In the
absence of availability of ILGS and actuarial tables in India, it is not expected that there would be any change in
India in fixing damages in fatal accident cases or even in personal injury cases.
Although the multiplicand and multiplier method of calculating compensation was generally followed, some courts
30 assessed the compensation by multiplying the datum figure of annual dependency by the number of years
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representing the period for which the dependants would have continued to enjoy the dependency, which is very
often the same as the life expectancy of the deceased, and then reducing the figure so reached by 25% to 30% on
account of lump sum payment and other uncertainties. The Supreme Court deprecated this method and said that
this method is “wholly impermissible.” 31 In the case of Susamma the Supreme Court observed: “We are aware
that some decisions of the High Courts and of this Court as well arrived at compensation on some such basis.
These decisions cannot be said to have laid down a settled principle. They are merely instances of particular
awards in individual cases. The proper method of computation is the multiplier method. Any departure, except in
exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element
of unpredictability for the assessment of compensation.” 32 Referring to section 110 (b ) of the Motor Vehicles Act,
1939, which envisages the compensation to be ‘just’, the Court further observed: “The multiplier method is the
accepted method of ensuring a just compensation which will make for uniformity and certainty of the awards. We
disapprove these decisions of the High Court which have taken a contrary view.” 33
Some decisions, 34 also took the view that even when the compensation is assessed by multiplying the annual
dependency by the entire life expectancy of the deceased, no deduction should be made as the benefit of the lump
sump payment is off set by future inflation, rise in prices, rise in needs of dependants and other uncertain factors. It
is submitted that such an approach will inevitably lead to over compensation. The conventional multiplier, selected
with reference to interest rates at 4 to 5 per cent to off set inflation and consequent rise in income and prices,
though much higher than what it would be at current interest rates, is much less than the period for which the
dependency is to last or the life span of the deceased. 35 Therefore, when the datum figure of annual dependency
is multiplied by the entire period of dependency or the life expectancy of the deceased, it is bound to yield over
compensation unless suitably reduced. Susamma's case 36 noticed above must be taken to have disapproved
these decisions 37 also. There is, however, no question of reducing the amount any further if calculated on the
basis of conventional multiplicand multiplier method as explained above. 38
After the decision of the Supreme Court in Suramma Thomas, 39 the multiplicand multiplier method became well
established in Indian law. The choice of the multiplier is determined by two factors namely the rate of interest
appropriate to a stable economy and the age of deceased or the claimant whichever is higher for the calculation as
to what capital sum, if invested at a rate of interest appropriate to a stable currency would yield the multiplicand by
way of annual interest for the period for which the dependency is expected to last and would also be consumed up
by the end of that period. 40 But the ascertainment of multiplicand the court said in Susamma case “is a more
difficult exercise” 41 for future prospects of advancement in life and career should also be sounded in terms of
money to augment the multiplicand which is arrived at by estimating the gross income of the deceased and
deducting from it his living expenses usually 1/3 in absence of any other evidence. 42 It has been noticed that in
Cookson v. Knowles, (1978) 2 All ER 604 the House of Lords held that the dependency should be fixed at the date
of trial having regard to the practice of frequent wage increase due to inflation. 43 But this method does not seem
to have been accepted in India. The method adopted here is to take the basic pay of the deceased employee at a
much higher figure upto twice the amount that it was at the time of his death and to add to this amount the various
perquisites to which he would have been entitled. 44 But it is not permissible according to this view to take into
account future revision in salary if it is not retrospective to cover the date of death. 45 In this particular case 46 the
deceased was aged 35 and at the time of his death his basic pay was Rs. 3295. The loss of dependency was
calculated on the basis as if the basic pay of the deceased was Rs. 3295 X 2 = 6590 and other perks and
allowances such as dearness allowance, child education allowance for two children and child bus fare calculated on
this basic pay were added to it which amounted to Rs. 8609 and 1/3 of this amount was deducted as living
expenses of the deceased leaving Rs. 5738 as the annual dependency which became the multiplicand. Applying to
it 13 as the multiplier the amount of compensation was determined at Rs. 8,95,128.
In National Insurance Co. v. Indira Srivastava , 47 the Supreme Court reiterated that ‘net income’ of an employee
who dies in an accident for calculation of ‘just compensation’ under Section 168 of the Motor Vehicles Act is not
taken to be restricted to pay packet the employee carries home at the end of the month but also all other perks
which are beneficial to the members of the entire family. In that case along with the basic pay the following perks
were also added to the basic pay to show loss of annual net income: (i) Conveyance Allowance (ii) House Rent
Allowance (iii) Bonus 35% of basic (iv) Contribution to P.F. 10% of basic (v) LTA reimbursement (vi)
Superannuation 15% of basic (vii) Gratuity Contribution 5.34% of basic (viii) Medical policy self and family (ix)
Page 10 of 35
Education scholarship paid to his children. The age of the deceased in that case was 45 and 13 was the multiplier
used. 1/3 of the total so reached was deducted which the deceased would have spent on himself. The Supreme
Court also held that in calculating the net income the statutory amount of tax payable thereon must be deducted.
But as in that case the accident had taken place long back and neither the Tribunal nor the High Court had taken
into account rise in the income of deceased by promotion or otherwise the Supreme Court declined to deduct the
tax payable from the compensation.
In Sarla Verma v. Delhi Transport Corporation 48 the Supreme Court has attempted to standardise the
determination of multiplicand and multiplier to bring about uniformity in determination of compensation payable in
case of death. As regards addition to income having regard to future prospects the court said:
“In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of
50% of actual salary to the actual salary income of the deceased towards future prospects, where the
deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the
words “actual salary” should be read as “actual salary less tax”). The addition should be only 30% if the age of
the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50
years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the
addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the
deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts
will usually take only the actual income at the time of death. A departure therefrom should be made only in rare
and exceptional cases involving special circumstances.”
Regarding deduction to be made for personal and living expenses the court laid down:
“We are of the view that where the deceased was married, the deduction towards personal and living expenses
of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-
fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number
of dependent family members exceeds six.”
“Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle.
In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a
bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in
a short time, in which even the contribution to the parent(s) and siblings is likely to be cut drastically. Further,
subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a
dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary,
brothers and sisters will not be considered as dependants, because they will either be independent and earning, or
married, or be dependent on the father.
“Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a
dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the
contribution to the family. However, where the family of the bachelor is large and dependent on the income of the
deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or
brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken
as two-third.”
As regards selection of multiplier the Supreme noticed the discrepancy in various decisions and prepared a chart,
columns 1 and 2 of which read as follows:
Age of the deceased Multiplier scale in Trilok Chandra as clarified in Charlie
Column 1 Column 4
Up to 15 yrs —
15 to 20 yrs 18
21 to 25 yrs 18
26 to 30 yrs 17
31 to 35 yrs 16
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Age of the deceased Multiplier scale in Trilok Chandra as clarified in Charlie

36 to 40 yrs 15
41 to 45 yrs 14
46 to 50 yrs 13
51 to 55 yrs 11
56 to 60 yrs 09
61 to 65 yrs 07
Above 65 yrs 05
The Court then said:
“the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying
Susamma Thomas 48a , Trilok Chandra 48b and Charlie 48c ), which starts with an operative multiplier of 18
(for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26
to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years,
M-7 for 61 to 65 years and M-5 for 66 to 70 years.”
In the particular case the salary of the deceased at the time of death was Rs. 4004. The monthly income was
determined at Rs. 6006 by adding 50% of the salary out of which 1/5 th was deducted as the personal and living
expenses of the deceased. Thus the multiplicand was determined at Rs. 57,658 per annum. The deceased was
aged 38 at the time of his death. Applying the multiplier of 15 total loss of dependency worked out to Rs. 8,64,870.
Rs. 500 was added to it under the head loss of estate and another sum of Rs.500 as funeral expenses and Rs.
10,000 as loss of consortium to the widow. Thus the total compensation allowed was Rs. 8,84,870 with interest at
the rate of 6% from the date of petition.
Deductions.— “The damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts
must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the
deceased.” This was stated by LORD MACMILLAN in Davies v. Powell Duffryn Associated Collieries Ltd ., 49 and
words to the same effect were used by other Law Lords in their speeches. LORD WRIGHT in the same case said:
“The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand,
the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever
source comes to him by reason of the death.” 50 These words of LORD WRIGHT were adopted as the principle
applicable also under the Indian Act in Gobald Motor Service Ltd., Allahabad v. R.M.A. Veluswami, 51 where the
Supreme Court stated: “The general principle is that the pecuniary loss can be ascertained only by balancing on the
one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which
from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by
the death, must be ascertained.” The general principle was reiterated in C.K. Subramania Iyer v. T. Kunhikuttan
Nair 52 and Sheikhpura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. 53 This balancing
principle of bringing into account against the loss to the dependants any pecuniary benefit accruing to them in
consequence of death has step by step been completely eroded in England by legislation. The Fatal Accidents Act,
1908 (English) provided that no account should be taken of any sum paid or payable on the death of the deceased
under any contract of assurance and this was extended by the 1959 Act (English) to cover “any insurance money,
benefit, pension or gratuity, which has been or will or may be paid as a result of the death”. Section 4 of the 1976
Act (English) as amended in 1982 completely negatives the principle of deduction by enacting that “in assessing
damages in respect of a person's death in an action under this Act benefits which have accrued or will or may
accrue to any person from his estate or otherwise as a result of his death shall be disregarded.”54 Apart from
legislation the Courts themselves restricted the classes of benefits which can be taken into account by restrictively
construing such phrases as ‘resulting from’ or ‘in consequence of’ the death. 55 If the dependants had the use of
assets such as house and furniture belonging to the deceased during his lifetime, no deduction was allowed even if
the dependants inherited such assets on his death. 56 As regards income producing assets, such as stocks and
shares, what was allowed as deduction was not the value of the inherited assets but the value of the acceleration of
inheritance. 57 In a case where the deceased was expected to make substantial savings in future had he lived, no
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deduction at all was allowed for acceleration of the benefit of the deceased's estate as anticipated savings for the
future of which the dependants were deprived cancelled out the acceleration benefit. 58 But in an extreme case
where the entire family income is from investments and the whole of this income is inherited by dependants they
may not be able to claim any damages for they suffer no loss. 59 Gains made by dependants after death but which
could not be described as ‘resulting from’ or ‘in consequence of’ death were not allowed as deduction. In this
category will fall the cases where the workmen voluntarily subscribed funds for the family of a deceased fellow
workman; 60 where exgratia payments were made by the Government when the claim was not against the
Government; 61 where the claimant did not inherit any estate of the deceased but was given one-third of the estate
by those who inherited out of generosity and affection; 62 where the dependants, two orphaned boys, received the
benefit of care and services of their maternal grand mother who took them into her own home and family after their
parent's death; 63 and where the widow took in lodgers 64 or started to go for work, 65 after her husband's death.
Any damages recoverable to the estate under the Law Reform Act, 1934 (English) which corresponds to section 2
of the Fatal Accidents Act (Indian) were deducted from damages awarded to the dependants who were also
beneficiaries of the estate66 but not otherwise, 67 but damages for loss of earnings between the accident and
death were not deducted. 68 All these cases which relate to balancing principle or principle of deduction have no
utility in England now as the legislation has completely obliterated this principle. 69 But these cases have relevance
in India where there has been so far no statutory change in this respect and the principle involved in them have
been applied from time to time. A controversial area, however, relates to insurance money, pension, gratuity or
similar benefits paid on death to the dependants. As already noticed, in England, insurance money ceased to be
deductible by statutory modification in 1908 and this exemption was extended in 1959 to cover ‘any insurance
money benefit, pension or gratuity’ payable as a result of the death. Before these amendments, these sums
received by dependants on death were taken into account in England for reduction of damages under the Fatal
Accidents Act.70 Although no statutory amendment was made in respect of a common law action of damages for
personal injury, amounts received by the injured person under a contract of insurance and by way of disablement
pension under a contract of service were held by the HOUSE OF LORDS in Parry v. Cleaver 71 by a majority of 3
against 2 not deductible on the ground that insurance amount was the fruit of premium paid in the past and
disablement pension was in the nature of deferred wages being the fruit of services already rendered and that it
would be unjust and unreasonable that these amount should enure for the benefit of the tortfeasor and become
deductible from the damages. Even before this decision in Bradburn v. Great Western Railway Co ., 72 it was held
that the benefits recovered by the plaintiff from a private accident insurance was not deductible in a common law
action for personal injury. Taking inspiration from these decisions it has been held in a number of cases 73 in India
that the receipt of insurance, provident fund, pension or gratuity benefits by the dependants of the victim in a fatal
accident case must be altogether excluded from consideration in the award of damages. One reasoning in these
cases is that these financial benefits are in essence deferred earnings of the victim of the accident being the result
of his savings, his thrift or foresight and the dependants even otherwise would have had the benefit of these sums
in due course, therefore, they are not benefits arising on account of death alone; and to take these away from the
rightful claimants and to enure them only for the benefit of the tortfeasor is something which shocks the judicial
conscience. These cases generally relate to automobile accidents and another reasoning in this context is thats.
110B of the Motor Vehicles Act, 1939, enables the court to award just compensation which gives more latitude to
the Court than the provision in the Fatal Accidents Act. Contrary view has, however, been taken in some cases,74
that the principle applied in Bradburn v. Great Western Railway Co . 75 and Parry v. Cleaver 76 to benefits
received by the plaintiff from private accident insurance and disablement pension received from his employer
cannot be applied to fatal accident cases where according to the decision of the Supreme Court in Gobald Motor
Services case 77 any pecuniary advantage which from whatever source comes to them (dependants) by reason of
the death has to be taken into account in application of the balancing principle. It has also been held in these cases
that rules applicable for determination of compensation under Section 110B of the Motor Vehicles Act are the same
as applicable under the Fatal Accidents Act for the former Act only provides a new forum with some alteration in
procedure to make the remedy cheap and expeditious but the substantive law is that which is contained in the Fatal
Accidents Act and the law of torts as held by the Supreme Court in New India Insurance Co. Ltd. v. Smt. Shanti
Misra . 78 A Full Bench of the Madhya Pradesh High Court 79 has also held the same view about Section 110B of
the Motor Vehicles Act that balancing principle applies to claims arising under that provision and that in considering
the question of deduction it is not a relevant consideration that no advantage should accrue to the wrongdoers. 80
It was also held that the Insurance amount, provident fund, gratuity and pension received by the dependants of the
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deceased were in the nature of benefits of which they would have got the advantage in some form, if the deceased
had lived, at some point of time in future and the death can be taken to have accelerated the receipt of these
benefits and the pecuniary advantage received by the dependants by reason of death is merely the advantage
gained by acceleration of their interest and this can be taken into account in selecting the multiplier; but the burden
was on the appellants to show that this was not done and if they failed to discharge this burden no interference
could be made in appeal. 81 It was further held that ex gratia payment made by the employer to the dependants on
the basis of contract of service is a benefit resulting from death and this amount should be deducted. 82 Another
area of controversy is about the categories of dependants. As already seen, under the English Fatal Accidents Act,
the categories of dependants have been enlarged by legislation from time to time.83 But this has not been done in
India; still in some cases relating to automobile accidents Courts have widened the categories of dependants on the
reasoning that under the provisions of the Motor Vehicles Act, they are not fettered by the provisions of the Fatal
Accidents Act.84 Contrary view has, however, been taken in other cases on the reasoning that provisions in the
Motor Vehicles Act merely relate to procedure and change of forum but substantive law as contained in the Fatal
Accidents Act is not affected.85 The Supreme Court has now held 86 that the provisions ofsections 110A and 110B
of the Motor Vehicles Act, 1939, which provide that an application for compensation is to be made on behalf of and
for the benefit of all the legal representatives and the tribunal is to make an award determining the amount of
compensation which appears to it to be just specifying the person or persons to whom compensation is to be paid,
are substantive provisions which displace to that extent the provisions of section 1A of the Fatal Accidents Act,
1855, more specifically 2nd and 3rd paragraphs of that section, in relation to claims arising out of motor accidents.
In the case before the Supreme Court, a brother, who is not a dependant under section 1A of the Fatal Accidents
Act, was allowed compensation under the Motor Vehicles Act as a legal representative. The decision of the
Supreme Court still leaves open the following four questions: (1) Can a person, who is a dependant under the Fatal
Accidents Act but not a legal representative, claim compensation under the Motor Vehicles Act; (2) Whether legal
representatives, seeking compensation under the Motor Vehicles Act, can also claim compensation under section 2
of the Fatal Accidents Act for benefit of the estate of the deceased; (3) Do the principes for awarding just
compensation under the Motor Vehicles Act differ from the principles applied in awarding compensation under the
Fatal Accidents Act and (4) Whether the ‘balancing principle’ is applicable in making awards under the Motor
Vehicles Act. The second and third questions noted above may now be taken as settled by the Supreme Court by
its decision in General Manager, Kerala State Electricity Board v. Mrs. Susamma Thomas, 87 in which the Court
clearly laid down that section 110 (b) of the Motor Vehicles Act, 1939, 88 in so far it envisages the compensation to
be ‘just’ does not permit the courts to deviate from the multiplicand and multiplier method which is applied under the
Fatal Accidents Act for that method is the accepted method of ensuring a just compensation. The Court also
allowed conventional damages for loss to the estate. The Supreme Court has also allowed full compensation
payable under section 140 of the M.V. Act, 1988 (no fault liability) to a legal representative (married daughter) who
was not dependant on the victim, her father, but was maintained by her husband.89
The fourth question also can now be taken to be settled by the decision in Mrs. Hellen C. Rebello v. Maharashtra
State Road Transport Corporation, 90 which holds that in determining the question of compensation under the M.
V. Act the court has a wider discretion as it has to determine just compensation and a question relating to deduction
has to be approached from that angle. It was further held that any pecuniary gain which is not directly related to
accidental death and which the claimant would have received on account of any form of death, accidental or
otherwise, is not pecuniary advantage deductible in computation of just compensation. On this reasoning the
amount received by the claimant on the life insurance of the deceased was held not to be deductible from the
compensation computed under the M.V. Act. This reasoning was fully accepted in United India Insurance Co. Ltd. v.
Patricia Jean Mahajan 91 and in addition to the amount received on the insurance policy of the deceased,
allowances paid to the wife and children of the deceased under the social security system were not held to be
deductible. On the same reasoning deduction of family pension received by the dependants of the deceased was
held to be impermissible. 92
In cases where the deceased was having only agricultural income from his lands, it has to be noticed that the lands
will be inherited by the claimants and will remain with them so that the total agricultural income which the deceased
was earning cannot form the foundation for calculation of damages for loss of income. 93 Just compensation
denotes equitability, fairness, reasonableness and non-arbitrariness. 94
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3(B) For benefit of the estate
Damages for the benefit of the estate are recoverable in England under the Law Reform (Miscellaneous Provisions)
Act, 1934. By abolishing the maxim actio personalis moritur cum persona , the Act enables the damages suffered
by the deceased before his death under the heads loss of earnings, pain and suffering, and loss of expectation of
life to be recovered for the benefit of his estate. 95 The cause of action survives even if the death be instantaneous
96 for the cause of action is completed by the infliction of injuries which precedes the death. The Act does not
deprive the deceased's dependants of their cause of action under the Fatal Accidents Act but the financial benefit
accruing to the dependants under the Law Reform Act fell to be deducted from the compensation for loss of
dependency awarded to them under the Fatal Accidents Act97 before 1982 when the provision for deduction was
removed by Parliament. The Indian counterpart of the Law Reform Act is section 2 of the Fatal Accidents Act, 1855,
which enables recovery of “any pecuniary loss to the estate of the deceased” occasioned by the wrongful act,
neglect or default which caused his death. As earlier seen, section 1 -A of the Act enables the dependants to
recover damages for loss of dependency. “The rights under the two provisions are quite distinct and independent.
Under the former section (Section 1 -A), the damages are made payable to one or the other relations enumerated
therein whereas the latter section provides for the recoupment of any pecuniary loss to the estate of the deceased
by the wrongful act complained of.”1 There can be no controversy that the damages recoverable under section 2
will include (a) loss of earnings and profits up to the date of death; (b) medical and hospital expenses if incurred; (c)
pain and suffering; (d) loss of expectation of life and (e) funeral expenses, if paid out of the estate of the deceased.
2 Even if the deceased was unconscious from the time of injury till death, he would have been awarded damages,
had he lived and sued, for deprivation of the ordinary experiences and amenities of life and this right passes on his
death to his executors and administrators who can recover the damages for the benefit of the estate under the head
pain and suffering which will cover loss of amenities. 3 Similarly damages for loss of expectation of life can be
awarded even when the deceased died without regaining consciousness. 4 But damages under this head are not
for the prospect of length of days but for predominently happy life and the assessment is so difficult that only
moderate conventional sums are awarded. 5 It has been held by the Gauhati High Court that no damages can be
allowed under the head pain and suffering in case of instaneous death or death even after an interval of time when
the injured was throughout unconscious. 6 In the latter case, however, damages for loss of amenities may be
allowed under the head pain and suffering. 7
Under English law loss of expectation of life ceased to be a separate head for which damages can be allowed by
section 1 (b ) of the Administration of Justice Act, 1982 and it is to a limited extent now clubbed with the head of
pain and suffering. Thus in a case of death, the estate can recover for pain and suffering including, if it be the case,
awareness of shortened expectation of life caused by the injuries which led to death. This change has done away
with the practice of awarding conventional sums as damages for loss of expectation of life. Therefore, if a victim in
an accident lost consciousness immediately on receiving the injury and died soon thereafter nothing would be
recoverable as damages for benefit of the estate on account of pain and suffering including awareness of shortened
expectation of life under the English law. In Hicks v. Chief Constable of the South Yorkshire Police , 8 95 people
including two young girls had died due to overcrowding in a football stadium resulting in suffocation. There being no
dependency, the parents of the girls brought only a claim for benefit of the estate. The finding was that the girls died
from traumatic asphyxia. It was also found on the basis of medical evidence that in cases of death from traumatic
asphyxia by crushing, the victim would lose consciousness within matter of seconds from the crushing of the chest
which cut off the ability to breathe and would die within five minutes. On these facts the trial Judge, the Court of
Appeal and the House of Lords unanimously held that the girls did not suffer any pain before death as a result of
the injury for which damages could be allowed to the estate of the deceased. It was contended that the girls must
have suffered fear of impending death in the terrifying circumstances for which damages could be allowed.
Rejecting this contention LORD BRIDGE observed: “It is perfectly clear law that fear by itself, of whatever degree, is
a normal humane motion for which no damages can be awarded. Those trapped in the crush—who were fortunate
enough to escape without injury have no claim in respect of the distress they suffered in what must have been a
truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury
is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim's estate.” 9
Page 15 of 35
The controversial area in this context is the award of damages for loss of earning of “lost years” meaning thereby
the period during which the deceased would have continued to earn but for his death. A In Pickett v. British Rail
Engineering Ltd ., 10 the House of Lords in an action for damages for personal injuries, overruling the decision of
the Court of Appeal in Oliver v. Ashman , 11 held that damages for loss of future earnings should include the whole
period of plaintiff's preaccident expectancy of earning life and not merely the post accident expectancy of working
life. In other words, the plaintiff was held entitled to claim damages for lost earnings of lost years when the accident
shortened his expectation of working life. On the same lines the House of Lords in Gammell v. Wilson, 12 held that
in addition to conventional and moderate damages for loss of expectation of life, damages for loss to the estate
should include damages for loss of earnings of the lost years. The damages are calculated by finding the annual
loss and applying a suitable multiplier. The annual loss to the estate is “what the deceased would have been likely
to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and
career prospects at time of death would suggest he was reasonably likely to achieve.” 13 Gammel's case was
followed in India by a Division Bench of the Madhya Pradesh High Court in Rameshchandra v. Madhya Pradesh
State Road Transport Corporation . 14 It was pointed out that the decision in Gammel's case was in line with the
Supreme Court's decision in Gobald Motor Service Ltd. v. R.M.K. Veluswami, 15 in which it was held that “the
capitalised value of his income subject to relevant deductions would be loss caused to the estate of the deceased.”
The expression “capitalised value” of income has no meaning if the loss of earnings is calculated only up to the date
of death; it has relevance only in the context of income that the deceased would have earned in the lost years. It will
be seen that the annual loss to the estate was computed in Gammel's case to be the amount that the deceased
would have been able to save, spend or distribute after meeting the cost of his living, and damages for loss to the
estate were computed after applying a suitable multiplier to the annual loss. So, in computation of annual loss, the
amount that the deceased would have spent on dependants was not taken into account. The result of such a
computation was that in cases where the dependants were not the persons to whom the estate devolved, there was
likelihood of duplication of damages. To remove this risk, Parliament amended the Law Reform (Miscellaneous
Provisions) Act, 1934, in 1982, by providing that damages recoverable for the benefit of the estate will not include
any damages for loss of income in respect of any period after the victim's death. 16 A1 It is remarkable that in a
personal injury case the plaintiff is still entitled in England to recover damages for loss of earnings of lost years on
the authority of Pickett's case. 17 One of the reasons why Parliament has not legislated to overrule Pickett's case
whereas it has overruled Gammel's case is that in a personal injury case there is no risk of duplication of damages.
The risk of duplication in a fatal accident case also can be completely avoided by fixing the annual loss of income to
the estate after deducting from the annual income of the deceased not merely his living expenses but also what he
might have spent on his dependants. Such a mode of calculation was indeed sanctioned by the Supreme Court in
Gobald Motor Services’ case as will appear from the following passage: “An illustration may clarify the position. X is
the income of the estate of the deceased. Y is the yearly expenditure incurred by him on his dependants (we will
ignore the other expenditure incurred by him). X—Y, i.e. , Z is the amount that he saves every year. The capitalised
value of the income spent on the dependants, subject to relevant deductions, is the pecuniary loss sustained, by the
members of his family through his death. The capitalised value of his income subject to relevant deductions would
be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get
compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the
capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got
compensation under section 1, representing the amount that the deceased would have spent on them if alive, to
that extent there should be deduction under section 2 of the Act in respect of compensation for the loss caused to
the estate. To put it differently, if under section 1, they get capitalised value of Y, under section 2, they could get
only the capitalised value of Z for the capitalised value of Y + Z, i.e., X would be the capitalised value of his entire
income.” 18 Duplication of damages under the Indian Act (Fatal Accidents Act) can be completely avoided if what is
allowed is the capitalised value of Y with relevant deductions under section 1A and the capitalised value of Z with
relevant deductions under section 2, irrespective of whether the claimants under the two provisions are same or
different. But in Chairman, Andhra Pradesh State Road Transport Corporation v. Shafiya Khatoon, 19 a Division
Bench of the Andhra Pradesh High Court has held differing from the view taken by the Madhya Pradesh High Court
in Rameshchandra's case 20 that damages for loss of earnings during lost years cannot be allowed under section
2 for the benefit of the estate essentially on the ground that the effect of Gammel's case was taken away by
statutory amendment in England but without referring to Gobald Motor Services ’ case, 21 in this context and
without noticing that the award of damages for loss of earnings for lost years under section 2 is as mentioned above
Page 16 of 35
supported by that decision. Another point to be noticed from Gobald Motor Services case 22 is that damages
allowed for the benefit of the estate under the heads pain and suffering and loss of expectation of life are not to be
deducted from the damages allowed to the dependants under section 1A even if the claimants under the two
sections are the same. 23 In State of Tripura v. Tapan Kumar Dhar, 24 a division bench of the Gauhati High Court
in a motor accident case allowed compensation for loss of earnings of lost years under the head loss to the estate.
In doing so the High Court relied upon the illustration given by the Supreme Court in Gobald Motor Service's case
which has been quoted above. 25
In General Manager, Kerala State Road Transport Corporation v. Mrs. Susamma Thomas , 26 the Supreme Court
noticed the cases of Picket v. British Rail Engineering Ltd. , 27 Gammel v. Alexander 28 and Ramesh Chandra v.
Madhya Pradesh State Transport Corporation 29 and the fact that Gammel's case has been statutorily overruled in
England. The Court quoted almost verbatim 30 the passages A to A1 above 31 but failed to authoritatively decide
whether the principle in Gammel's case as applied by the Madhya Pradesh High Court and as explained above to
avoid duplication can be applied in India or not. All that the Court observed was that the claim made for loss of
future earnings of Rs. 50,000 was “unjustified in the facts of the case” 32 before the Court. In that case the
deceased was aged 39 and the claimants were his parents, widow and children. The dependency in that case was
likely to last for the entire working life of the deceased and, therefore, entire loss of future earnings was taken into
account in the sum awarded for loss of dependency and a further grant of damages for loss of future earnings
under the head loss to the estate would have clearly amounted to duplication. Loss of future earnings under the
head loss to the estate becomes material only when the deceased is young and the dependants are old and the
dependency is not to last for the entire working life of the deceased. This was the position in the Madhya Pradesh
case of Ramesh Chandra. 33 In that case the deceased was aged 19 and was undergoing training as a fitter. On
completion of his training in a year or two, there was a prospect of his earning and saving at least Rs. 100 after
meeting his living expenses. The only dependent and legal representative was his mother aged 50 years. Having
regard to the age of the mother, compensation payable on account of loss of dependency was calculated by
applying a multiplier of 10 to the annual loss of Rs. 1200 and so the compensation worked out to Rs. 12,000. As
regards loss to the estate, the loss of earnings of lost years was calculated, having regard to the age of the
deceased, by applying a multiplier of 15 and the compensation worked out to Rs. 18,000. A sum of Rs. 2,000 was
awarded for pain and suffering and loss of expectation of life. The total compensation for loss to the estate thus
worked out to Rs. 20,000. As the damages assessed for loss to the estate exceeded the damages assessed for
loss of dependency, the Court awarded only Rs. 20,000 to avoid duplication. Now if the loss of earnings of lost
years would not have been taken into account in assessing damages for loss to the estate the mother would have
received only Rs. 12,000 for loss of dependency and Rs. 2,000 for loss to the estate, i.e., in all Rs. 14,000. On the
facts in Susamma's case 34 as the entire loss of earnings of lost years was taken into consideration for assessing
compensation for loss of dependency, nothing could be awarded on that account in assessing compensation for
loss to the estate and the Court was right in awarding only conventional sum of Rs. 15,000 for loss to the estate
which should be presumed to be under the heads pain and suffering and loss of expectation of life.
1
Wheatley v. Lane , 1 William's Notes to Saunder's Rep, 216A.

2
Raymond v. Fitch , (1835) 2 Cr M & R 588, (597); Pulling v. Great Eastern Ry. Co., (1882) 9 QBD 110;
United Collieries Ltd. v. Simpson, (1909) AC 383 (391); Chunilal v. Secretary of State ; Secretary of State v.
Chunilal , (1910) 12 Bom LR 769 [LNIND 1910 BOM 61], 776 : (1911) ILR 35 Bom 12.
3

4
Ibid. , p. 615.
5
Page 17 of 35
Ibid. , pp. 615, 616.

6
Shantilal Thakurdas v. Chaman Lal Magan Lal Lala , AIR 1976 SC 2358 : (1976) 4 SCC 417 [LNIND 1976
SC 287] ; Pukhraj Jain v. Mrs. Padma Kashyap , AIR 1990 SC 1133, p. 1136 : (1990) 2 SCC 431 [LNIND
1990 SC 170]. See further , Naseeban v. Surendra Pal , AIR 1996 Raj 91.
7
Rameshwar Manjhi v. Management of Samgramgarh Colliery , AIR 1994 SC 1176 : (1994) 1 SCC 292
[LNIND 1993 SC 958].
8
(1808) 1 Camp 493 ; Admiralty Commissioners v. S.S. Amerika, (1917) AC 38 : 116 LT 34 : 33 TLR 135.
9
PER LORD ELLENBOROUGH in Baker v. Bolton , (1808) 1 Camp 493.

10
PER LORD ELLENBOROUGH, Ibid .

11
Clark v. London General Omnibus Co. Ltd ., (1906) 2 KB 648.

12
Osborn v. Gillett , (1873) LR 8 Ex 88 : 42 LJ Ex 53 : 28 LT 197.

13
Jackson v. Watson & Sons, (1909) 2 KB 193 : 100 LT 799.

14
24 & 25 Geo. V., c. 41, s. 1(1).
15
Other causes of action e.g., seduction, inducing one spouse to leave or remain apart from the other, and
claim for damages for adultery were also initially excluded from the operation of the Act, but these
exceptions were abolished by the Law Reform (Miscellaneous Provisions) Act, 1970. Melepurath Sankunni
Ezhthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 [LNIND 1985 SC 354] (120) : AIR 1986 SC
411. FAULK'S Committee Report, 1975, has recommended the survival of cause of action for defamation
against the estate of the deceased in the normal way. See, WINFIELD & JOLOWICZ, Tort, (12th edition
1984), p. 658.
16
Section 1(2) of 24 & 25 Geo. V., C. 41, as amended by The Administration of Justice Act, 1982.
17
Ibid.
18
The Administration of Justice Act, 1982.
19
Page 18 of 35
Admiralty Commissioner v. S.S. America, 1917 AC 38 (52) : 116 LT 34 : 33 TLR 35; Davies v. Powell
Dufferyn , Associated Collieries Ltd ., (1942) AC 602 : 167 LT 74 : (1942) 1 All ER 657; C.K. Subramania
Iyer v. T. Kunhikuttan Nair , AIR 1970 SC 376, (378) : (1969) 3 SCC 64 [LNIND 1969 SC 380].
19a
Under the Damages for Bereavement (Variation of Sum) order 1990, the amount awardable for
bereavement has been increased to 7,500.
20
Krishna Behari Sen v. The Corporation of Calcutta , (1904) ILR 31 Cal 993; Bhupendra Narayan Sinha v.
Chandramoni Gupta , (1926) ILR 53 Cal 987, 990; Pashu Pati Datta v. Kelvin Jute Mills , ILR (1937) 2 Cal
518 .
21
D.K. Cassim & Sons v. Sara Bibi , (1935) ILR 13 Ran 385.
22
Rustomji Dorabji v. Nurse , (1920) ILR 44 Mad 357 (FB); Murugappa Chettiar v. Ponnusami Pillai , (1921)
ILR 44 Mad 828; Palaniappa Chettiar v. Rajah of Ramnad , (1925) ILR 49 Mad 208. The last case further
held that Act XII of 1855 does not enable the legal representatives to continue the suit to recover the costs
as loss caused to the estate.
23
Punjab Singh v. Ramautar Singh , (1919) 4 PLJ 676.

24
Motilal v. Harnarayan , (1923) 25 Bom LR 435, ILR 47 Bom 716.

25
Mahtab Singh v. Hub Lal , (1926) ILR 48 All 630.

26
Maniramlala v. Mst. Chattibai , AIR 1937 Nag 216 .

27
Ratanlal v. Baboolal , AIR 1960 MP 200 [LNIND 1959 MP 128].

28
G. Jaya Prakash v. State , AIR 1977 AP 20 [LNIND 1976 AP 9].

29
AIR 1988 SC 506 : (1988) 1 SCC 556 [LNIND 1988 SC 22] : (1988) 1 KLT 450.
30
Ibid.
31
Baboo v. Subanshi , ILR (1942) Nag 650. An appeal from a dismissal of a suit brought to recover costs
incurred in a prosecution for defamation abates on the death of the appellant: Ayya Ramaswamy Naicker v.
Manicka Naiker , (1944) 57 Mad LW 320.
32
Page 19 of 35
Josiam Tiruvengadachariar v. Sawmi Iyengar , (1910) ILR 34 Mad 76.

33
(1973) 1 SCC 602 [LNIND 1973 SC 19] (615, 616) : AIR 1973 SC 1104. See further, Court of Wards
Muzaffarnagar v. Ajodhya Prasad , ILR (1938) All 306.
34
(1973) 1 SCC 602 [LNIND 1973 SC 19] (616) : AIR 1973 SC 1104.
35
36
Ibid. , p. 510.
37
Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 [LNIND 1985 SC
354] (121) : AIR 1986 SC 411.
38
Zargham Abbas v. Harichand , AIR 1980 All 259 ; Gopal v. Ramchandra , (1902) ILR 26 Bom 597; Param
Chetty v. Sunderraja Naick , (1903) ILR 26 Mad 499; Harinath v. Jagannathdas , AIR 1949 Nag 63 .
39
AIR 1997 Del 201 [LNIND 1997 DEL 27], p. 231 (LAHOTI J.).
40
Ibid. , pp. 229, 230.

41
Esther Virginia v. Maurice Minny , (1934) ILR 61 Cal 480; Goolbai v. Pestonji , AIR 1935 Bom 333 .
42
Parkash Chand v. Pal Singh , AIR 1985 P&H 329 (FB); Smt. Anita Ram v. State , AIR 1988 P&H 141.
43
General Manager, Kerala State Road Transport, Trivandrum v. Mrs. Susamma Thomas , AIR 1994 SC
1631, p. 1632 : (1994) 2 SCC 176.
44
Charan Lal Sahu v. Union of India , AIR 1990 SC 1480 : (1990) 1 SCC 613 [LNIND 1989 SC 639].
45
See, pp. 221-222, text and notes 32 to 38, and General Manager, Kerala State Road Transport Corporation
v. Mrs. Susamma Thomas , AIR 1994 SC 1631, p. 1632 : (1994) 2 SCC 176. In Susamma's case (p. 1637)
the Supreme Court has also approved certain guidelines laid down by the Gujarat High Court for the
protection of illiterate and minor claimants by directing that the compensation awarded be deposited in bank
and withdrawal permitted in accorodance with those guidelines.
46
Page 20 of 35
See, text and note 19, p. 109, supra .

47
Admiralty Commissioners v. S.S. Amerika, (1917) AC 38 (52) : 116 LT 34 : 33 TLR 135; Davies v. Powell
Dufferyn Associated Collieries Ltd ., (1942) AC 601 : (1942) 1 All ER 657; C.K. Subramania Iyer v. T.K. Nair
, AIR 1970 SC 376 (378).
48
Haigh v. Royal Mail Steam Packet Co. Ltd ., (1883) 52 LJ QB 640.

49
S. 5, Fatal Accidents Act, 1976, read with the Law Reform (Contributory Negligence) Act, 1945. There are
no corresponding statutory provisions in India but similar view has been taken on general principles,Vidya
Devi v. M.P. State Road Transport Corporation, 1974 ACJ 374; 1974 MPLJ 573; AIR 1975 MP 89 [LNIND
1974 MP 54].
50
Section 3(1), Fatal Accidents Act, 1976.
51
Section 1A, Fatal Accidents Act, 1855.
52
Franklin v. S.E. Ry ., (1858) 3 H & N 211, p. 213-214; C.K. Subramania Iyer v. T. Kunhikuttan Nair , AIR
1970 SC 376 (378) : (1969) 3 SCC 64 [LNIND 1969 SC 380].
53
See , pp. 115 to 121, post .

54
Taffvale Ry. v. Jenkins, (1913) AC 1 : 29 TLR 19; Barnett v. Cohen, (1921) 2 KB 461 : 125 LT 733 : 37 TLR
629; C.K. Subramania Iyer v. T. Kunhikuttan Nair , AIR 1970 SC 376 (377).
55
Duckworth v. Johnson , (1860) 4 H & N 653, p. 659.

56
Blake v. Midland Ry. Co ., (1852) 18 QB 93; Ratilal Kalidas v. Madras Railway Co ., (1904) 4 MLT 238.
57
Read v. G.E. Ry. , (1868) LR 3 QB 555; Jameson v. Central Electricity Generating Board, (1999) 1 All ER
193, p. 201, 202 (HL) (settlement by the deceased for the whole amount of the loss from a concurrent tort
feasor).
58
Burgess v. Florance Nightengale Hospital for Gentlewomen, (1955) 1 QB 349 : (1955) 1 All ER 511, p. 515
(Devlin, J.) (Death of wife who was a dancing partner. Loss in business from loss of wife as a dancing
partner not recoverable). See Cox v. Hokerhull, (1999) 3 All ER 577, pp. 583, 584 (CA) (Death of invalid
wife. Loss of invalid care allowance paid by the State to the husband for caring the wife not recoverable).
59
Page 21 of 35
Taffvale Railway Company v. Jenkins, (1913) AC 1 : 107 LT 564; Barnett v. Cohen, (1921) 2 KB 461 : 125
LT 733; C.K. Subramania Iyer v. T. Kunhikuttan Nari , AIR 1970 SC 376 (379). Some High Courts have, it is
submitted, wrongly allowed compensation for mental agony and injured feelings of sons, daughters and
parents of the deceased; J.R. Daniel v. T. Vaithuswaran , AIR 1989 Mad 5 [LNIND 1987 MAD 222]; New
India Insurance Ltd. v. Smt. Sarda Devi , AIR 1989 Pat 203, p. 209; Bhanwarlal v. Harilal , AIR 1994 MP 10
[LNIND 1993 MP 66], p. 13; Smt. Sitabai v. M. Rajya Parivahan Nigam , AIR 1994 MP 34 [LNIND 1993 MP
53]. Orissa High Court has however correctly not allowed solatium to parents Kumodini Das v. Baliar Singh
, AIR 1996 Ori 32 [LNIND 1995 ORI 16].
60
Davies v. Powell Duffryn Associated Collieries Ltd ., [1942] AC 601 p. 617 : 167 74 : 58 TLR 240 (LORD
WRIGHT); Municipal Corporation of Delhi v. Subhagwanti , AIR 1966 SC 1750 (1754); N. Sivammal v.
Managing Director Pandian Roadways Corporation , AIR 1985 SC 106 : (1985) 1 SCC 18.
61
Hicks v. Chief Constable of the South Yorkshire Police , (1992) 2 All ER 65 (HL), p. 67. See further , text
and notes 8 and 9, pp. 133, 134.
62
Hardeo Kaur v. Rajasthan State Transport Corporation , AIR 1992 SC 1261, p. 1263 (para 9) : (1992) 2
SCC 567 [LNIND 1992 SC 255] ; National Insurance Co. Ltd. v. M/s. Swarnlata Das and Others , AIR 1993
SC 1259, p. 1261 (Para 6; conventional amount of Rs. 7,500 allowed); General Manager, Kerala State
Road Transport Corporation v. Mrs. Susamma Thomas , AIR 1994 SC 1631, p. 1636 : (1994) 2 SCC 176
(para 13; conventional sum of Rs. 15,000), Fizabai v. Nemichand , AIR 1993 MP 79 [LNIND 1992 MP 42],
p. 86; D.D. Upadhyaya v. U.P. Road Transport Corp. , AIR 1993 Del 57 [LNIND 1992 DEL 44], p. 62.
63
Mclaughlin v. O'Brian , (1982) 2 All ER 298 (HL). See further , Chapter IX title 1D(v), p. 215.
64
Hicks v. Chief Constable of the South Yorkshire Police , (1992) 1 All ER 690 (CA) 693; (1992) 2 All ER 65
(HL), p. 69.
65
Jhulan Rani Saha (Smt.) v. The National Insurance , AIR 1994 Gau 41 [LNIND 1993 GAU 49]. See further,
Suki v. Hem Singh , AIR 1994 Raj 101.
66
Taffvale Railway Company v. Jenkins, (1913) AC 1 : 107 LT 564; C.K. Subramania Iyer v. T.K. Nari , AIR
1970 SC 376 (378); Lata Wadhwa v. State of Bihar, 2001 ACJ 1735 (SC) p. 1745 : AIR 2001 SC 3218
(mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable
expectation of pecuniary advantage is always a mixed question of fact and law); M.S. Grewal v. Deepchand
Sood, AIR 2001 SC 3660 p. 3664; Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 SCC
731 [LNIND 2003 SC 906], pp. 738, 739.
67
Taffvale Railway Company v. Kenkins, (1913) AC 1 : 107 LT 564; Smt. Kaushalya Devi v. Bholaram ,
(1995) 5 Scale 195 (College going daughter aged 16 student of pre-medical class. Rs.1 lakh allowed to
parents).
68
Page 22 of 35
Ramesh Chandra v. Madhya Pradesh State Road Transport Corporation , 1982 MPLJ 426 (428). See
further, Oriental Insurance Co. Ltd. v. Sivan , AIR 1990 Kerala 202 [LNIND 1989 KER 419]; Sri Bantu v. Sri
Annappa , AIR 1996 Kant 33 [LNIND 1995 KANT 32].
69
Barnett v. Cohen, (1921) 2 KB 421 : 125 LT 733.

70
C.K. Subramania Iyer v. T. Kunhikuttan Nair , AIR 1970 SC 376 : (1969) 3 SCC 64 [LNIND 1969 SC 380].
Smt. Bimala Devi v. M/s. National Insurance Co. Ltd ., AIR 1989 P&H 174 (FB) (Having regard to inflation
Rs. 10,000 may now be allowed in similar cases). But, see, Muthusamy v. S.A.R. Annamalai , AIR 1990
Mad. 201 [LNIND 1989 MAD 132]. In Smt. Kumari v. State of Tamil Nadu , AIR 1992 SC 2069 : (1992) 2
SCC 223, a child aged six years had died due to falling in uncovered sewerage and Rs. 50,000 with 12%
interest was allowed as compensation to the father without giving any reasons. In Lata Wadhwa v. State of
Bihar, 2001 ACJ 1735 p. 1745 : AIR 2001 SC 3218, where a number of persons, including children, died in
a fire accident in a function organised by the Tata Iron and Steel Company (TISCO) at Jamshedpur parents
of children in the age group of 5 and 10 years were allowed Rs. 1,50,000 and parents of children in the age
group of 10 and 15 years Rs. 2,60,000 as compensation. In addition in each case Rs. 50,000 were
awarded as conventional amount presumably towards benefit of the estate. The compensatory damages
were assessed having regard to the environment from which the children were brought, their parents being
reasonably well placed officers of TISCO and the practice in TISCO to give employment to one child of its
employee. In M.S. Grewal v. Deepchand Sood, AIR 2001 SC 3660, p. 3672 : (2001) 8 SCC 151 [LNIND
2001 SC 1809] the High court's award of Rs. 5 lacs to parents of each child who died due to drowning in a
picnic because of negligence of school authorities was upheld being not excessive. New India Assurance
Co. Ltd. v. Satender, AIR 2007 SC 324 : (2006) 13 SCC 60 [LNIND 2006 SC 932] (Death of a child aged
nine years in a motor accident. Rs. 1,80,000/- allowed. Lata Wadhwa's case followed); Oriental Insurance
Co. Ltd. v. Syed Ibrahim, AIR 2008 SC 103 : (2007) 11 SCC 512 [LNIND 2007 SC 1079] (Death of a child
of 7 years Rs. 51,500/-was allowed. Lata Wadhwa's case referred).
71
Berry v. Humm, (1915) 1 KB 627; Manoharlal Sobha Ram v. Madhya Pradesh Electricity Board, 1975 ACJ
494 (496, 497) (MP); Spittle v. Bunney , (1988) 3 All ER 1031 (CA) : (1988) 1 WLR 847; Sqn. Ldr D.D.
Upodhyaya v. U.P. State Road Transport Corporation , AIR 1993 Delhi 57 [LNIND 1992 DEL 44], p. 64;
Lata Wadhwa v. State of Bihar, 2001 ACJ 1735 (SC) p. 1744 (value of services rendered by a housewife
estimated at Rs. 36,000 per annum) : AIR 2001 SC 3218.
72
Spittle v. Bunney , (1988) 3 All ER 1031 (CA) : (1988) 1 WLR 847; NGUYEN v. NGUYEN , (1990) 64 ALJ
222 (High Court of Australia). For calculation of damages in case of loss of services of mother to infants.
See, Corbett v. Barking Havering and Brentwood Health Authority , (1991) 1 All ER 498 : (1991) 2 QB 408
(CA); Stanley v. Saddique , (1991) 1 All ER 529 (1992) QB 1 (CA).
73
Dahiben v. Chitrabhai , AIR 1982 Gujarat 188 [LNIND 1981 GUJ 86]; Bishamber Sahai v. State of Uttar
Pradesh, 1975 ACJ 154 (All); Automobile Transport (Rajasthan) P. Ltd. v. Dewalal , AIR 1977 Raj 121;
Gangaram v. Kamalabai , AIR 1979 Kant 106 [LNIND 1978 KANT 193]; Geetabai v. Hussain Khan, 1985
ACJ 44 (MP), Dondapati Vinodh v. B. Baswa Raju , AIR 1989 AP 227 [LNIND 1988 AP 64].
74
Ibid.
75
Page 23 of 35
Singapore Bus Service (1978) Ltd. v. Lim Soon Yong , (1985) 3 All ER 437 (PC).
76
National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 SCC 763 [LNIND 2007 SC 1456] paras 10 and 19
: AIR 2008 SC 845.
77
A to A1 verbatim quoted in General Manager Kerala Road Transport Corporation v. Mrs. Susamma
Thomas , AIR 1994 SC 1631, p. 1633 (para 7) : (1994) 2 SCC 176.
76-A1
National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 SCC 763 [LNIND 2007 SC 1456] paras 10 and 19
: AIR 2008 SC 845.
78
(1942) AC 601 (617) : (1942) 1 All ER 647.

79
(1951) AC 600 (614-617) : (1951) 2 All ER 448.

80
AIR 1962 SC 1 : (1962) 1 SCR 929 [LNIND 1961 SC 176].

81

82

83
MAYNE and MECGREGOR on damages, 14th edition, pp. 877, 888, 889; Kamla Devi v. Kishan Chand ,
AIR 1970 MP 168 [LNIND 1969 MP 96]: 1970 ACJ 310 (314).
84
Ibid.
85
(1970) AC 166.
86
Taylor v. O'Connor, (1971) AC 115 : (1970) 1 All ER 365; Cookson v. Knowles , (1978) 2 All ER 604 :
(1979) AC 556 (HL); Graham v. Dodds , (1983) 2 All ER 953 : (1983) 1 WLR 808 (HL).
87
AIR 1977 SC 1189.
88
AIR 1994 SC 1631, pp. 1634, 1635 (multiplier method more scientific). Same view in National Insurance
Corporation v. M/s. Swarnlata Das , AIR 1993 SC 1259, p. 1261 : 1993 Supp (2) SCC 743; T.N. State
Page 24 of 35
Transport Corpn. Ltd. v. S. Rajapriya, (2005) 6 SCC 236 [LNIND 2005 SC 397], pp. 241, 242 : AIR 2005
SC 2985. See further text and note 6, p. 120.
89
State v. Devi Rawat , AIR 1981 MP 173 .

90
AIR 1981 MP 173, pp. 176, 177. (G.P. Singh, C.J.) See further, Kamala Devi v. Kishan Chand , AIR 1970
MP 168 [LNIND 1969 MP 96]; Chaurasia & Co. Chhatarpur v. Pramila Rao , AIR 1975 MP 31 [LNIND
1974 MP 75]; Laxman Singh v. Gurmeet Kaur, 1979 ACJ 170 (Punjab & Haryana FB); APSRTC v.
Narsavva , AIR 1987 AP 127 [LNIND 1986 AP 325] (FB); Orissa Road Transport Company Ltd. v. R.K.
Das , AIR 1990 Ori 74 (FB). H.T. Bhandary v. Maniyamma , ILR (1985) 2 Kant 2337 . The adoption of the
current rate of interest for determining the present value of future annual dependency has generally not
been followed, (Bhagwandas v. Mohd. Arif , AIR 1988 AP 99, p. 104, and cases mentioned in para 14 at
that page); but a Full Bench of the Orissa High Court does not reject this method and leaves it open to be
applied in appropriate cases (Orissa Road Transport Company Ltd. v. R.K. Das , AIR 1990 Ori 74 (FB);
see, the dissenting judgment of RATH J.). Bijoy Kumar Dugar v. Bidyadhar Dutta, (2006) 3 SCC 242 para 8
: AIR 2006 SC 1255 (dependency of parents aged 45, 50 multiplier of 12 applied;); U.P. State Road
Transport Corporation v. Krishna Bala, (2006) 6 SCC 249 [LNIND 2006 SC 506] (Susamma followed.
Reliance is also placed in Lord Diplock's speech in Mallet v. Mc. Mongale and Halsburys. It is stated that
the multiplier should be fixed looking to the prevalent banking rate of interest. That does not appear to be
correct. To counter inflation multiplier is selected at low interest rate of 4 to 5%. This is indicated both in
Lord Diplock's speech and Halsburys approvingly quoted in the case.); Syed Basheer Ahamed v. Mohamed
Jameel, (2009) 2 SCC 225 [LNIND 2009 SC 14] : AIR 2009 SC 1219; Mohan Singh v. Kashi Bai, (2009) 4
SCC 507 [LNIND 2009 SC 60] : AIR 2009 SC 2006 (deceased aged 35. Claim under section 166M. V. Act
and not under section 163A of the Act but taking analogy from Schedule II of the Act multiplier of 17
applied. SC declined to interfere).
91
Cookson v. Knowles (1978) 2 All ER 604 (614-615) : (1979) AC 556 (HL); Graham v. Dodds , (1983) 2 All
ER 953 : (1983) 1 WLR 808 (HL). See further, Managing Director TNSTC Ltd. v. K.I. Bindu, (2005) 8 SCC
473 [LNIND 2005 SC 789], pp. 479, 480 : AIR 2005 SC 4425.
92
Ibid.
93
Mallet v. Mcmonagle, (1970) AC 166; (1969) 2 All ER 178.

94
Mallet v. Mcmonagle, (1970) AC 166; (1969) 2 All ER 178. The prospect of remarriage of widow cannot be
taken into account in England after Law Reform (Miscellaneous Provisions) Act, 1971.
1
Mallet v. Mcmonagle, (1970) AC 166; (1969) 2 All ER 178.

2
See, text and note 90, p. 118 above; Mallet v. Mcmonagle, (1970) AC 166 (LORD DIPLOCK); Taylor v.
O'Connor, (1971) AC 115 : (1970) 2 WLR 472 : (1970) 1 All ER 365, Cookson v. Knowles , (1978) 2 All ER
604 : (1979) AC 556 (HL); Graham v. Dodds , (1983) 2 All ER 953 : (1983) 1 WLR 808 (HL).
3
Page 25 of 35
Mallet v. Mcmonagle, (1970) AC 166, See , text and note 93, p. 118.
4
Graham v. Dodds , (1983) 2 All ER 953 (959) : (1983) 1 WLR 808 (HL).
5
AIR 1994 SC 1631 : (1994) 2 SCC 176 : 1994 ACJ 1.

6
Ibid. , pp. 1634, 1635; Susamma's case followed in Smt. Sarla Dixit v. Balwant Yadav , AIR 1996 SC 1274 :
(1996) 3 SCC 179 [LNIND 1996 SC 511] ; U.P. State Road Transport Corporation v. Trilok Chandra ,
(1996) 4 Scale 522 : (1996) 4 SCC 3623. (In this case, it was held that multiplier can go up to 18 as
indicated in the second schedule to the Motor Vehicles Act, 1988);Municipal Corporation of Delhi v. Smt.
Sushila Devi, AIR 1999 SC 1929, p. 1933; Lata Wadhwa v. State of Bihar, 2001 ACJ 1735 (SC) p. 2001 :
AIR 2001 SC 3218 : (2001) 8 SCC 197 [LNIND 2001 SC 1718] ; M.S. Grewal v. Deepchand Sood, AIR
2001 SC 3660 p. 3670; Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731
[LNIND 2003 SC 906], p. 739 : AIR 2003 SC 4182. Managing Director TNSTC Ltd. v. K.I. Bindu, (2005) 8
SCC 473 [LNIND 2005 SC 789] : AIR 2005 SC 4425 (Deceased aged 37, multiplier of 13 applied).
7
H.S. Ahammed Hussain v. Irfan Ahmad , AIR 2002 SC 2483, p. 2484 : (2002) 6 SCC 52 [LNIND 2002 SC
417] ; Municipal Corporation of Greater Bombay v. Laxman Iyar , supra ; T.N. State Transport Corpn. Ltd. v.
S. Rajapriya, (2005) 6 SCC 236 [LNIND 2005 SC 397], p. 240 (para 12) : AIR 2005 SC 2985.
8
Cookson v. Knowles , (1978) 2 All ER 604 : (1979) AC 556 (HL).

9
Graham v. Dodds , (1983) 2 All ER 953 : (1983) 1 WLR 808.

10
(2003) 8 SCC 731 [LNIND 2003 SC 906], p. 739.

11

12

13

14
Mallet v. Mcmonagle, (1970) AC 166, See, text and notes 93 & 94, pp. 118, 119.
15

16
AIR 1993 SC 1259, p. 1261.
Page 26 of 35
17
AIR 1994 SC 1631, p. 1636 : (1994) 2 SCC 176. In Mrs. Manjushri Raha v. B.L. Gupta , AIR 1977 SC 1158,
income, having regard to future increments and maximum grade minus expenses, of the entire life
expectancy of the deceased was awarded without any advertance to the question of lump sum payment,
vicissitude principle and distinction between loss to the dependants and loss to the estate. In Bishan Devi v.
Sirbaksh Singh, 1979 ACJ 496, p. 502 : AIR 1979 SC 1862 : (1980) 1 SCC 273 [LNIND 1979 SC 337],
there is a casual observation that ordinarily the court in arriving at a lump sum payment takes the figure at
about 12 years payment. But the facts at p. 501 will show that in that case itself multiplier of about 16 was
applied. In Sivammal v. Pandian Roadways Corporation, 1985 ACJ 75 (SC), in calculating the amount of
loss of dependency the whole of the income of the deceased without deducting anything for his expenses
was taken into account and multiplier of 10 was applied. In Smt. Rajendra Kumari v. Smt. Shanta Trivedi ,
AIR 1989 SC 1074 : (1989) 2 SCC 140 [LNIND 1989 SC 110], the deceased was 25 years of age, his
contribution to the family was estimated at Rs. 6,000 per annum and it was held, without any discussion,
that the claim of Rs. 1 lac as compensation was quite reasonable. Application of 17 as multiplier would
have yielded a little over that amount. In Hardeo Kaur v. Rajasthan State Transport Corporation , AIR 1992
SC 1261 : (1992) 2 SCC 567 [LNIND 1992 SC 255] the deceased army Major was 36 years of age, his
contribution to the family was estimated at Rs. 16,800 per year and a multiplier of 24 (taking his life
expectancy as 70) was applied; having regard to delay of 15 years and high rate of inflation no deduction
was made on account of lump sum payment. It is submitted that Sudhakar's case, Swarnlata Das's case
and Susamma's case lay down the correct principle. In Union of India v. Vijay Sundari , 1991 MP LJ 784, a
division bench of M.P. High Court holds that Manjushri Raha's case should be applied in cases where the
deceased is a Government servant. It is submitted that there is no sound reason to apply a different mode
of calculation in case of Government employees. Indeed in Municipal Corporation Delhi v. Smt. Sushila
Devi, AIR 1999 SC 1929 : (1999) 4 SCC 317 [LNIND 1999 SC 1755] which too was a case of an army
officer aged 27 years at the time of his death Hardeo Kaur's case was cited but was not applied and a
multiplier of 15 was applied following Susamma's case.
18
Sarla Dixit (Smt.) v. Balwant Yadav, AIR 1996 SC 1274 : (1996) 3 SCC 179 [LNIND 1996 SC 511].
19
Municipal Corporation Delhi v. Smt. Sushila Devi, AIR 1999 SC 1929 : (1999) 4 SCC 317 [LNIND 1999 SC
1755].
20
AIR 1970 MP 168 [LNIND 1969 MP 96].

21
AIR 1981 MP 173 .
22
1979 ACJ 170 (Punjab & Haryana); see further, U.P. State Road Transport Corporation v. Smt. Premwati ,
AIR 1992 All 271 [LNIND 1992 ALL 7], p. 274. (deceased aged 30 multiplier of 16 applied); Marri
Yadamma v. State of Andhra Pradesh , AIR 2002 AP 164 [LNIND 2001 AP 1213] (deceased aged 30,
multiplier of 16 applied) General Manager Punjab Roadways Nangal Depot v. Smt. Santosh Chada, AIR
1997 HP 36 (Deceased aged 54 multiplier of 8 applied and not 11 as indicated in II Sch. of M.V. Act, 1988).
23
United India Insurance Co. Ltd. v. Patricia Jean Mahajan , AIR 2002 SC 2607, pp. 2614, 2615 : (2002) 6
SCC 281 [LNIND 2002 SC 413].
24
Page 27 of 35
Ibid. Guidance on the question of multiplier is also available from a later case, but this was a case of
personal injury and a lump sum award was made without indicating the multiplier applied : New India
Assurance Co. Ltd. v. Charlie , AIR 2005 SC 2157 : (2005) 10 SCC 720 [LNIND 2005 SC 306].
25
AIR 1988 AP 99, p. 114.
26
Ibid. , p. 116. Approved by a Division Bench in Nirmala Naravva v. Vilas Ramchandra Shangde, 1989 ACJ
715 : AIR 1990 NOC 33 ; see, APSRTC v. Krishnan Rao , AIR 1995 AP 65 [LNIND 1994 AP 158].
27
See the Supreme Court Cases in footnote no. 11, 12, 13, 15, 16, 17, 18 and 19 supra ; Chaurasia & Co.,
Chhatarpur v. Pramila Rao , AIR 1975 MP 31 [LNIND 1974 MP 75]; Manoharlal Shobharam v. M.P.
Electricity Board , AIR 1976 MP 38 [LNIND 1975 MP 102]; State v. Devi Rawat , AIR 1981 MP 173 ; Orissa
Road Transport Company Ltd. v. R.K. Das , AIR 1990 Ori 74 (FB), p. 84.
28
Wells v. Wells, (1998) 3 All ER 481 (HL). See further pp. 228-229.
29
Ibid, p. 485.
30
See, for example, Hira Devi v. Bhaba Kanti Das , AIR 1977 Gauhati 31 (FB); Iyer Meaking Breweries Ltd. v.
Bimla Gupta , AIR 1985 All 147 [LNIND 1984 ALL 260]; Maharashtra State Transport Corporation v.
Pushpaben Rajarambhai Patel , AIR 1990 Bom 214 [LNIND 1989 BOM 172]; The General Manager,
Karnataka State Road Transport Corporation v. Smt. Khatujabee , AIR 1991 Knt 189 . This practice got
recognition by the Supreme Court in Jyotsna Dey v. State of Assam, (1987) 1 ACJ 172 (SC).
31
General Manager, Kerala State Road Transport Corporation v. Mrs. Susamma Thomas , AIR 1994 SC
1631, p. 1635 : (1994) 2 SCC 176. Also see, on the same lines, National Insurance Corporation v.
Swarnlata Das , AIR 1993 SC 1259, p. 1261; Mrs. Sudha Rashid v. Union of India , 1995 (1) Scale 77; Smt.
Sarla Dixit v. Balwant Yadav , AIR 1996 SC 1274 : (1996) 3 SCC 179 [LNIND 1996 SC 511] ; U.P. State
Road Transport Corporation v. Trilok Chandra , (1996) 4 Scale 522.
32
AIR 1994 SC 1631, p. 1635 : (1994) 2 SCC 176.
33
Ibid . See further Lata Wadhwa v. State of Bihar, 2001 ACJ 1735 (SC) p. 1743 : AIR 2001 SC 3218 (Three
judge bench decision affirming Susamma ); United India Insurance Co. Ltd. v. Patricia Jean Mahajan , AIR
2002 SC 2607, p. 2614 : (2002) 6 SCC 281 [LNIND 2002 SC 413].
34
For example, see, P.K. Krishanan Nair v. K. Karunakaran Nair, 1986 ACJ 41 (Kerala); Premchand v.
Jasoda, 1985 ACJ 315 (Raj); Mrs. Elizabeth Mathew v. Shri Vasdeo & Delhi Transport Corporation , AIR
1990 Delhi 121, p. 124; Dharam Singh v. Smt. Parveen Sehgal, AIR 1992 Delhi 347 [LNIND 1992 DEL
198], p. 350; Hardeo Kaur v. Rajasthan State Transport Corporation , AIR 1992 SC 1261, p. 1263 : (1992)
2 SCC 567 [LNIND 1992 SC 255] ; See further , Urmilla Pandey v. Khalil Ahmad , AIR 1994 SC 2405, pp.
Page 28 of 35
2407, 2408 : (1994) 4 SCC 207 [LNIND 1994 SC 500] (As nothing was paid for nearly 24 years, in special
circumstances no deduction was allowed for lump sum payment).
35
See , text and notes 89 to 94, 1, 2, pp. 118 to 120, supra .

36
AIR 1994 SC 1631 : (1994) 2 SCC 176.
37
Decisions in note 30 above except Urmilla Pandey's case.

38
Milap Kaur v. State , AIR 1988 HP 49, p. 64 (The head note is not accurate); Kumodini Das v. Rajat Kumar
Baliar Singh , AIR 1996 Ori 32 [LNIND 1995 ORI 16]. But, see, The New India Assurance Company Ltd. v.
Shri Sudesh Bhalla , AIR 1991 All 43 [LNIND 1990 ALL 208], p. 47.
39
AIR 1994 SC 1631 : (1994) 2 SCC 176.
40
Ibid paras 15 and 16 (SCC).

41
Ibid para 16.

42
Ibid .
43
p.117 supra .
44
Oriental Insurance Co. Ltd. v. Jasuben (2008) 4 SCC 162 [LNIND 2008 SC 342] para 29 : AIR 2008 SC
1734.
45
para 28.
46
Case in note 44. See further United India Insurance Company Limited v. Bindu, (2009) 3 SCC 705 [LNIND
2009 SC 236] where age of deceased was 32 years, multiplier of 13 applied.
47
1 (2008) CPJ 24 (SC).
48
(2009) 6 SCC 121 [LNINDORD 2009 SC 93] paras 24, 30, 31, 32, 42 : AIR 2009 SC 3104.
48a
(1994) 2 SCC 176.
48b
Page 29 of 35
(1996) 4 SCC 362 [LNIND 1996 SC 923].

48c
(2005) 10 SCC 720 [LNIND 2005 SC 306].

49
(1942) AC 601 : 167 LT 74 : 58 TLR 240 (HL).

50
Ibid.
51
AIR 1962 SC 1 : (1962) 1 SCR 785.
52

53
54
See, Pidduck v. Eastern Scottish Ommibuses Ltd ., (1990) 2 All ER 69 (CA), pp. 72, 74, 76; Stanley v.
Saddique , (1991) 1 All ER 529, p. 539 (CA). But, see, Watson v. Willmott , (1991) 1 All ER 473 : (1991) 1
QB 140 (CA). [Effect of adoption of infant on loss of dependency].
55
Hay v. Hughes , (1975) 2 All ER 257 (274) (CA).

56
Bishop v. Cunard White Star Co. Ltd ., (1950), p. 240 (248) : (1950) 2 All ER 22; Headley v. Steel Co. of
Wales Ltd ., (1953) 1 All ER 489 (CA). See Dondapati Vinodu v. B. Baswa Raju , AIR 1989 AP 227 [LNIND
1988 AP 64], p. 231.
57
Roughhead v. Railway Executive, (1949) 65 TLR 435.

58
Kasam v. Kampala Aerated Water Co. Ltd ., (1965) 2 All ER 875 (879, 880) (PC). See, Dondapati Vinodu v.
B. Baswa Raju , AIR 1989 AP 227 [LNIND 1988 AP 64], p. 231. In Nazeema v. George Kuriakose , AIR
1992 Kerala 67, p. 79, it has been held that receipt of any property of the deceased by the dependants
through succession is not ‘by reason of death’ and should be kept out of consideration. But, see, Bhai
Shamsher Singh v. Punjab State , AIR 1993 P&H 257.
59
Bishop v. Cunard White Star Co. Ltd., (1950), p. 240, (248); Rawlinson v. Babcock Wilson Ltd., (1967) 1
WLR 481, p. 486.
60
Baker v. Dalgleish S.S. Co. Ltd., (1921) 3 KB 481 (485, 486); (1922) 1 KB 361 (380) (CA).
61
Page 30 of 35
Pallavan Transport Corpn. v. P. Murthy , AIR 1989 Mad 14 [LNIND 1986 MAD 359] (when the claim was
not against the Government the amount paid by the Govt. under Family Benefit Scheme and Chief
Minister's Fund to dependants was not taken into account); United India Insurance Co. Ltd. v. Jyotsnaben,
AIR 1999 Guj 131 (payment from Chief Minister's Relief Fund).
62
Peacock v. Amusement Equipment Co. Ltd ., (1954) 2 All ER 689 (CA).

63
Hay v. Hughes , (1975) 1 All ER 257 (CA).

64
Buckley v. John Allen & Ford (Oxford) Ltd., (1967) 1 All ER 539.
65
Howitt v. Heads , (1972) 1 All ER 491. Widow employed by the employer of the deceased husband; Delhi
and Karnataka High Courts held that salary paid to the widow should not be deducted in computing loss of
dependency; Nirmala Sharma v. Raja Ram , AIR 1982 Delhi 233 [LNIND 1981 DEL 288]; Smt. Lalitha v.
Dashan Bhat Harbansh Bhat, AIR 1998 Kant. 344 [LNIND 1998 KANT 115]. Andhra Pradesh High Court
took a different view, Etikala Varalaxmi v. General Manager, APSRT Corpn , AIR 1988 AP 382 [LNIND
1987 AP 77].
66
Davies v. Powell Duffryn Associated Collieries Ltd., (1942) AC 601 : (1942) 1 All ER 657 (HL).
67
Rose v. Ford, (1937) AC 826 (835) : (1937) 3 All ER 359 (HL) (LORD ATKIN).
68
Murray v. Shuter , (1975) 3 All ER 375 (CA).

69
Fatal Accidents Act, 1976 (English) as amended in 1982, section 4.See , text and note 54, supra.
70
For example, for pension, see, Baker v. Dalgleish Steam Shipping Co. Ltd ., (1922) 1 KB 361 : 126 LT 482;
O'Neil v. S.J. Smith & Co. Bedford Ltd ., (1957) 3 All ER 255.
71
(1970) AC 1 : (1969) 2 WLR 821.

72
(1874) LR 10 Ex. 1.
73
Bhagat Singh Sohan Singh v. Om Sharma, 1983 ACJ 203, (Punjab & Haryana FB). See also, cases
referred to in support of the same view at p. 215, viz. , Life Insurance Corporation of India v. Legal
representatives of deceased Narainbhai Munjabhai Vadhia, 1973 ACJ 226 (Guj); Shakurmiya Imammiya
Shaikh v. Minor Surendra Singh Rup Singh, 1978 ACJ 130 (Guj); Bhagwanti Devi v. Ish Kumar, 1975 ACJ
56 (Delhi) affirmed in appeal 1982 ACJ 183; Rita Arora v. Saligram, 1975 ACJ 420 (HP). See further,
Chairman, Andhra Pradesh State Road Transport Corporation v. Shafiya Khatoon, (1985) ACJ 212 (AP);
Page 31 of 35
Elizabeth Mathew v. Vasdeo & Delhi Transport Corporation , AIR 1990 Delhi 121 ; Dharm Singh v. Smt.
Parveen Sehgal, AIR 1992 Delhi 347 [LNIND 1992 DEL 198], p. 350; Suki v. Hem Singh, AIR 1994 Raj
101; State of M.P. v. Asha Devi , AIR 1989 MP 93 [LNIND 1988 MP 212]; Union of India v. Vijay Sundari ,
1991 MPLJ 784 (Family pension given under Family Welfare Scheme not to be deducted), T.R.
Rangaswami v. Thiruvalluvar , AIR 1988 Mad 66 [LNIND 1986 MAD 392] (Amount received under Group
Insurance Policy to be wholly excluded and accelerated benefit of Accidents Benefit Policy to be taken
notice of). In N. Sivammal v. Managing Director, Pandian Roadways , AIR 1985 SC 106 : (1985) 1 SCC 18
: 1986 SCC (Cri) 235, reduction in compensation was not allowed on the ground that the widow has been
allowed pension. But there is no discussion on the point and it is not clear whether the reduction was not
allowed as a matter of principle or for the reason that the compensation awarded was already low.
74
Sushila Devi v. Ibrahim , 1974 MPLJ 168, 1974 ACJ 159 (MP); Jai Kumar Chhaganlal v. Mary Jerome
D'Souza, 1978 ACJ 28 (Bombay). See further, Karnataka State Road Transport Corpocation v. A.R.
Satishchandra, 1981 ACJ 138 (Kar); Orissa Road Transport Co. Ltd. v. Sabananda Patnaik, 1979 ACJ 45
(Ori).
75
(1874) LR 10 Ex. 1.
76
(1970) AC 1 : (1969) 2 WLR 821.

77

78
AIR 1976 SC 237 : (1976) 2 SCR 266 [LNIND 1975 SC 407]. See further , on this point Kamala Devi v.
Kishanchand , 1970 MPLJ 273 and Minu B. Mehta v. Balkrishna , AIR 1977 SC 1248 : (1977) 2 SCC 441
[LNIND 1977 SC 63].
79
Kashiram Mathur v. Sardar Rajendra Pd. , 1982 MPLJ 803 (FB).

80
Ibid. , p. 818.
81
Kashiram Mathur v. Sardar Rajendra Pd. , 1982 MPLJ 803 (812, 813, 818, 819) (FB).
82
1982 MPLJ 803 (812, 819). But see text and note 61, p. 128 supra.
83
See , title 2(A), text & note 61, p. 109.

84
Joshiram v. Naresh Kanta, 1978 ACJ 80 (P&H); K.S.R.T. Corporation v. Peerappa, 1979 ACJ 229 (Kant);
State v. Doleram, 1981 ACJ 219 (HP); Megji Bhai v. Chaturbhai, 1977 ACJ 253 (Guj); Chairman, A.P. State
Road Transport Corporation v. Shafiya Khatoon, 1985 ACJ 212 (AP).
85
Page 32 of 35
P.B. Kader v. Thatchamma , AIR 1970 Ker 241 ; Perumal v. Elluswamy Reddiar, 1974 ACJ 102 (Mad);
Dewan Hari Chand v. Delhi Municipality, 1981 ACJ 131 (Delhi); Budha v. Union of India , AIR 1981 MP 81 ;
Shanker Rao v. Babulal Fouzdar , AIR 1980 MP 154 [LNIND 1980 MP 89].
86
Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 [LNIND 1987 SC
472], pp. 248, 249: AIR 1987 SC 1690.
87
AIR 1994 SC 1631, p. 1635 : (1994) 2 SC 176. See further text and note 33, p. 123.
88
Now section 168 of the Motor Vehicles Act, 1988. But the general principles will not apply to the specific
provisions of no fault liability made in sections 140 and 163A of the Act.
89
Smt. Manjari Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474.
90

91
92
Lal Dei v. Himachal Road Transport, (2007) 8 SCC 319 [LNIND 2007 SC 1519] : (2007) 3 SCC (Cr) 550.
93
State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484 [LNIND 2003 SC 635], p. 487 : AIR 2003 SC 3696.
94
Ibid ; New India Assurance Co. Ltd. v. Satender, AIR 2007 SC 324 p.326 : (2006) 13 SCC 60 [LNIND 2006
SC 932].
95
Gammel v. Wilson , (1981) 1 All ER 578 (HL), p. 582 : (1982) AC 27 : (1981) 2 WLR 248.
96
Morgan v. Scoulding, (1938) 1 KB 786.

97
Gammel v. Wilson, supra .

1
C.K. Subramania Iyer v. T. Kunhikuttan Nair , AIR 1970 SC 376 (377).

2
WINFIELD, Tort, 7th edition, p. 124; Fizabai v. Nemichand , AIR 1993 MP 79 [LNIND 1992 MP 42], p. 86.
3
Page 33 of 35
West & Sons v. Shepherd , (1963) 2 All ER 625 : (1964) AC 326 (HL); Andrews v. Freeborough , (1966) 2
All ER 721 : (1967) 1 QB 1 : (1966) 3 WLR 342 (CA). In Murray v. Shuter , (1975) 3 All ER 375, the
deceased after suffering brain damage in a road traffic accident lingered on in complete coma for four years
in hospital until he died as a result of the injuries. Under the head pain and suffering and loss of amenities,
the estate was awarded 11,000 as damages which related almost wholly for loss of amenities.
4
Rose v. Ford, (1937) AC 826 : (1937) 3 All ER 359 (HL).

5
Benham v. Gambling, (1941) AC 157 (HL); West & Sons v. Shephard , (1963) 2 All ER 625 : (1964) AC 326
(HL); Gammell v. Wilson , (1981) 1 All ER 578 (582) (HL). In Sivammal v. Pandian Roadways Corporation,
1985 ACJ 75 : (1985) 1 SCC 18 (SC), the Supreme Court allowed Rs. 5,000 for ‘pain and suffering’ and a
further sum of Rs. 5,000 as “the customary figure for loss to the estate”. The latter amount of Rs. 5,000
should be understood as being under the head ‘loss of expectation of life.’
6
Smt. Jhulan Rani Saha v. The National Insurance Co ., AIR 1994 Gau 41 [LNIND 1993 GAU 49], p. 44.
7
See text and note 3, supra .

8
(1992) 2 All ER 65 (HL).
9
Ibid., p. 69.
10
(1979) 1 All ER 774 : (1980) AC 136 : (1978) 3 WLR 955 (HL).

11
(1961) 3 All ER 323 : (1962) 2 QB 210 : (1961) 3 WLR 669 (CA).

12
(1981) 1 All ER 578 : (1982) AC 27 : (1981) 2 WLR 248.

13
(1981) 1 All ER 578 (593) : (1982) AC 27 : (1981) 2 WLR 248.

14
1982 MPLJ 426 : 1983 ACJ 221 (MP) (G.P. SINGH C.J.).
15

16
Administration of Justice Act, 1982, section 4 ; WINFIELD & JOLOWICZ, Tort, 12th edition, pp. 659 (660).
17
Page 34 of 35
Pickett v. British Rail Engineering Ltd ., (1979) 1 All ER 774 : (1980) AC 827 : (1980) 2 WLR 283 (HL).
WINFIELD & JOLOWICZ, Tort, 12th edition, pp. 636 (660) (F.N. 55).
18

19
1985 ACJ 212 (AP). Andhra Pradesh High Court allows damages for lost years in a personal injury action;
Bhagwandas v. Mhd. Arif , AIR 1988 AP 99, p. 103. See further , text and note 79, p. 227, Chapter IX.
20
1982 MPLJ 426 : 1983 ACJ 221 (MP).

21

22
Ibid.
23
Jaikumar Chhaganlal Patni v. Mary Jerome D'Souza, 1978 ACJ 28 (36) (Bom).
24
AIR 1994 Gau. 28 [LNIND 1993 GAU 64], p. 31.

25
text and note 18, supra .

26
AIR 1994 SC 1631 : (1994) 2 SCC 176.
27
(1979) 1 All ER 774 : (1980) AC 827 : (1980) 2 WLR 283 (HL).

28
(1981) 1 All ER 578 : (1982) AC 27 : (1981) 2 WLR 248 (HL).

29
1982 MPLJ 426.
30
AIR 1994 SC 1631, p. 1636 : (1994) 5 SCC 176 : 1994 ACJ 1. See further UPSRTC v. Trilok Chandra,
(1996) 4 SCC 363 : (1996) 5 JT 356; Bangalore Metropolitan Transport Corporation v. Sarojamma, (2008)
5 SCC 142 [LNIND 2008 SC 2860] para 11 : AIR 2008 SC 3244.
31
See , pages 134, 135.

32
AIR 1994 SC 1631, p. 1637 : (1994) 2 SCC 176 : 1994 ACJ 1.

Page 35 of 35
33
1982 MPLJ 426.
34
AIR 1994 SC 1631, pp. 1636, 1637 : (1994) 2 SCC 176 : 1994 ACJ 1.
End of Document
CHAPTER VII DISCHARGE OF TORTS
1. WAIVER BY ELECTION
WHERE a man has more than one remedy for a tort, and he elects to pursue one of them, giving up the others, the
other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver is express or implied :
express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles
release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent
with that to which he is so entitled. The phrase “waive the tort” does not mean that the tort itself is waived; it is only
the right to recover damages for the tort committed, that is waived.
There are certain cases in which a person injured by a tort may at his election bring an action of tort, or waive the
tort and sue the wrong-doer on a contract implied fictitiously by law. Thus, if the defendant obtains the plaintiff's
money by fraud or other wrong, the plaintiff may sue him in tort or for money had and received. 1 Similarly, if a man
is wrongfully deprived of his goods, which are afterwards sold, he may bring an action for damages for the tort, or
he may sue for the price received by the defendant. 2
In United Australia Ltd. v. Barclays Bank Ltd ., 3 the House of Lords drew a distinction between election of
remedies and election of substantive rights. In a case where the election is between two remedies, it is not
complete merely by filing a suit to invoke one remedy until judgment is obtained whereas in a case where there is
an election between two inconsistent substantive rights, the election may be complete at an earlier stage. For
example, if the plaintiff sold his goods to the defendant because of fraud, he may either affirm the contract and sue
for price or he may treat the contract as void and sue for damages for fraud. This is an example of election between
two inconsistent substantive rights and if the plaintiff institutes a suit for price of the goods affirming the contract, the
election will be complete. But when the plaintiff has to elect between suing for unjust enrichment arising from tort,
and suing for damages for tort, it is a case of the first category, i.e. of election between two remedies. In the case of
United Australia Ltd ., 4 the House of Lords confirmed the principle that where the same facts gave rise in law to
two causes of action, one for money had and received, and the other for damages for tort, the plaintiff must elect
between the remedies. It held, however, that such election was not irrevocable until judgment was recovered on
one cause of action or the other. The House of Lords also held that where the same facts gave rise in law to a
cause of action against one defendant for money had and received and to a separate cause of action for damages
in tort against another defendant, judgment recovered against the first defendant did not prevent the plaintiff from
suing the other defendant in a separate action; but to the extent the judgment was actually satisfied, this constituted
satisfaction pro tanto of the claim for damages in the cause of action against the second defendant. The case of
United Australia Ltd ., 5 was followed by the Privy Council in Mahesan v. Malaysia Government Officers’ Co-
operative Housing Society Ltd. 6 It was held in this case that at common law the principal of a bribed agent has, as
against both the bribed agent and the briber, the alternative remedies of (a) claiming the amount of the bribe as
money had and received, or (b) claiming damages for fraud in the amount of the actual loss sustained in
consequence of entering into the transaction in respect of which the bribe had been given; but he could not recover
both and had to elect between the alternative remedies although he was not required to make the election until the
time for entry of judgment in his favour on one or other of the alternative causes of action.
Page 2 of 5
2. ACCORD AND SATISFACTION
An accord is an agreement between two or more persons, one of whom has a right of action against the other, that
the latter shall render and the former accept some valuable consideration in substitution for the right of action.
’Accord’ indicates the agreement, and ’satisfaction’ the consideration which makes it operative. When the
agreement is executed, and satisfaction has been made, the arrangement is called accord and satisfaction and
operates as a bar to the right of action. An accord and satisfaction in favour of one joint tort-feasor operates in
favour of them all when the injury is one and indivisible. It can then give rise to but one cause of action, and
consequently if satisfaction is accepted as full and complete as against one person, it operates with respect to the
entire cause of action. 7
Where damages only are to be recovered, accord and satisfaction is a good plea, 8 e.g. action for libel, action
under LORD CAMPBELL'S Act, 9 actions for personal injuries. 10 But when a person has agreed to accept a sum
for personal injuries, and subsequent damage not within the contemplation of parties, when the agreement was
made, arises, the original accord and satisfaction will not prevent him from bringing an action for further injury. 11
Accord without satisfaction does not bar the right of action. 12 But if what is accepted in satisfaction is merely the
promise and not the performance thereof, the original cause of action is discharged from the date of the promise. 13
It is a matter of construction whether what was accepted in satisfaction was the promise or its performance. 14
A civil action in tort and criminal proceedings for libel are distinct and different remedies. Any adjustment of the
criminal complaint would not operate as an accord and satisfaction of the civil action for damages, unless it was
agreed that the compromise in the criminal proceedings should also operate as an accord and satisfaction of the
civil action. 15
3. RELEASE
A release is the giving up or discharging of the right of action which a man has or may have against another man.
But a release executed under a mistake 16 or in ignorance of one's rights, 17 or obtained by fraud, 18 is not valid.
A covenant not to sue at all is equivalent to a release and may be pleaded in bar. 19 A mere covenant not to sue
one of two joint tort-feasors does not operate as a release so as to discharge the other. 20
4. ACQUIESCENCE
Where a person who knows that he is entitled to enforce a right, neglects to do so for a length of time, the other
party may fairly infer that he has waived or abandoned his right. But to deprive a man of his legal remedies there
must be something more than mere delay. 21
Direct acquiescence takes away the right of action. 22

Page 3 of 5
5. JUDGMENT RECOVERED
The cause of action against a wrong-doer in respect of a wrong is extinguished by a judgment obtained in a Court
of law. The judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the
object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the
defendant to another suit for the purpose of obtaining the same result. The person injured cannot bring a second
action for the same wrong even though it is subsequently found that the damage is much greater than was
anticipated when the action was brought. If in an assault a person sustains a broken arm and a broken leg, he must
sue for both the injuries in the same action.
Order II of the Code of Civil Procedure23 lays down that every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of action. Where a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or
relinquished unless leave is obtained.
Two distinct causes of action, however, may arise out of the same facts against the same wrong-doer, and in that
event two separate actions may be brought. The plaintiff, a cab-driver, was held entitled to recover damages for
personal injuries received in a collision by defendant's negligence, though he had already recovered compensation
in a previous action for injury to the cab. 24
Continuing injuries .—Where the injury is of a continuing nature i.e., it is still in the course of being committed, the
bringing of an action and the recovery of damages for the perpetration of the original wrong do not prevent the
injured party from bringing a fresh action for the continuance of the injury. In cases in which damage is not of the
essence of the action, as in trespass, a fresh cause of action arises de die in diem , and in cases in which damage
is of the essence of the action, as in nuisance, a fresh cause of action arises as often as fresh damage accrues. In
cases of continuing nuisance successive action may from time to time be brought in respect of their continuance.
Subsidence caused by working coal mines.— Lessees of coal under M's land worked the mine so as to cause a
subsidence of the land and injury to houses thereon in 1886. For the injury thus caused the lessees paid
compensation. They worked no more, but in 1882 a further subsidence took place causing further injury. There
would have been no further subsidence if an adjoining owner had not worked his coal, or if the lessees had left
enough support under M's land. It was held that the cause of action in respect of the further subsidence did not
arise till that subsidence occurred, and that M could maintain an action for the injury thereby caused, although more
than six years had passed since the last working by the lessees. 25
6. STATUTES OF LIMITATION
There is a distinction between wrongs which are actionable per se , and those which are actionable only where the
plaintiff can prove that he has suffered actual damage. The period of limitation runs, in the first case, from the time
when the wrongful act is committed; in the second, from the time of the plaintiff's first sustaining actual injury.
In England, the Limitation Act, 1980 fixes the time during which actions of tort must be brought.
The periods within which suits can be brought in Indian Courts against wrongdoers for obtaining redress are
governed by the provisions of the Indian Limitation Act, 1963.
1
Neate v. Harding, (1851) 6 Ex 349.

2
Page 4 of 5
Rodgers v. Maw , (1846) 15 M & W 444 (448); Thorappa v. Umedmalji , (1923) 25 Bom. LR 604.
3
(1941) AC 1 : 57 TLR 13 : 164 LT 139 : 1940 All ER 20 (HL).

4
Ibid.
5
Ibid .
6
(1978) 2 All ER 405 (PC).
7
Makhanlal v. Panchamlal , (1934) 31 NLR 27.

8
Blake's case, (1606) 6 Rep 43 b.

9
Read v. G.E. Ry. Co ., (1868) LRQB 555 : 37 LJQB 278 : 18 LT 822.

10
Rideal v. Great Western Ry ., (1859) 1 F & F 706.

11
Ellen v. Great Northern Ry. Co ., (1901) 49 WR (Eng) 395; Roberts v. Eastern Counties Ry. Co ., (1859) 1
F & F 460.
12
Lee v. Lancashire & York Ry. Co., (1871) LR 6 Ch 527.

13
Morris v. Baron & Co., (1918) AC 1 (35) (LORD ALKINSON).

14
Elton Cop Dyeing Co. Ltd. v. Brodbent & Son Ltd ., (1919) 89 LJKB 186.
15
Govindachariyalu v. Seshagiri Rao, (1941) 2 MLJ 674, (1941) MWN 786.

16
Hore v. Becher, (1842) 12 Sim 465.

17
Phelps v. Amcott, (1869) 21 LT 167; Knapp v. Burnaby , (1608) 8 WR (Eng) 305.

18
Hirschfield v. L.B. & S.C. Ry. Co., (1876) 2 QBD 1.

Page 5 of 5
19
Ford v. Beech, (1848) 11 QB 852 (871).

20
Duck v. Mayeu, (1892) 2 QB 511 : 41 WR 56; Pollachi Town Bank Ltd. v. Subramania Iyer , (1934) MWN
621.
21
Uda Begam v. Imam-ud-din , (1875) ILR 1 All 82, 86; Kazi Mahamad v. Narotam , (1907) 9 Bom LR 1117.
22
In the following cases, the right of action was held to have been taken away by acquiescence:—
The right to a house after it was dedicated as a house of prayer (Sufroo Shaikh Durjee v. Futteh Shaikh
Durjee , (1871) 15 WR 505); the recovery of possession by landlord of land let for cultivation with a tea
nursery (Langlois v. Rattray , (1878) 3 CLR 1), or with a substantial brick-house erected on it by a tenant
(Shib Doss Banerjee v. Bamun Doss Mookerjee , (1871) 15 WR 360; Lalla Gopee Chand v. Shaikh Liakut
Hossein , (1876) 25 WR 211; Dattatraya Rayaji Pai v. Shridhar Narayan Pai , (1892) ILR 17 Bom 736;
Yeshwadabai and Gopikabai v. Ramchandra Tukaram , (1893) ILR 18 Bom 66; Dunia Lal Seal v. Gopi Nath
Khetry , (1895) ILR 22 Cal 820; Narayen v. Daji , (1899) 1 Bom LR 191; Krishna Kishore Neogi v. Mir
Mahomed Ali , (1899) 3 CWN 255; Ismail Khan Mahomed v. Joygoon Bibee , (1900) 4 CWN 210; Ismail
Khan Mahomed v. L.P.D. Broughton , (1901) 5 CWN 846). The right of a landlord to prevent brick-making
by a tenant (Nicholl v. Tarinee Churn Bose , (1875) 23 WR 298), or to prevent changing the character of
land demised by planting grafts of mango trees (Noyna Misser v. Rupikun , (1882) ILR 9 Cal 609), or to
prevent erection of a house by the trespasser on the land trespassed (Gobind Puramanick v. Gooroo Churn
Dutt , (1865) 3 WR 71; Gujadhur Singh v. Nund Ram , (1866) 1 Agra HC 244), or to prevent erection of a
chabutra so as to block up an old drain (Nil Kant Sahoy v. Jujoo Sahoo , (1873) 20 WR 328); allowing of
surface water being drained over one's land (Heera Lall Kooer v. Purmessur Kooer , (1871) 15 WR 401);
making of a road (Radha Nath Banerjee v. Joy Kishen Mookerjee , (1864) 1 WR 288); closing of a road
(Banee Madhub Doss v. Ram Joy Rokh , (1868) 10 WR 316); or restoring a bund (Bhyro Dutt v. Mussamut
Lekhranee Kooer , (1871) 16 WR 123); or removing a privy (Brommo Moyee Debia Chowdhrain v.
Koomodinee Kant Banerjee Chowdhry , (1872) 17 WR 466) were similarly held to be taken away by
acquiescence.
23
Act V of 1908.
24
Bransden v. Humphrey, (1884) 14 QBD 141.

25
Darley Main Colliery Co. v. Mitchell , (1886) 11 App Cas 127 : 14 QBD 125 : 54 LT 882. See Holmes v.
Wilson , (1839) 10 A & E 503. The continuing use of the buttresses for the support of the road was, under
the circumstances, a fresh trespass.
End of Document
CHAPTER VIII LIABILITY FOR WRONGS COMMITTED BY OTHERS
A person may be liable in respect of wrongful acts or omissions of another in three ways:—
(1) As having ratified or authorised the particular act;
(2) As standing towards the other person in a relation entailing responsibility for wrongs done by that person;
and
(3) As having abetted the tortious acts committed by others.
1. LIABILITY BY RATIFICATION
An act done for another by a person not assuming to act for himself, but for such other person, though without any
precedent authority, whatever, becomes the act of the principal, if subsequently ratified by him. In that case the
principal is bound by the act, whether it be to his detriment or advantage, and whether it be founded on a tort or a
contract to the same extent as by, and with all the consequences which follow from the same act done by his
previous authority. 1 Omnio ratihabitio retrorahitur et mandato priori oequiparatur (every ratification of an act relates
back and thereupon becomes equivalent to a previous request.)
Three considerations arise before a person can be held liable for a tort by ratification:
(1) It must be shown that the person ratifying the act ratified it with full knowledge of its being tortious, or it must
be shown that, in ratifying and taking the benefit of the act, he meant to take upon himself, without inquiry,
the risk of any irregularity which might have been committed, and to adopt the transaction right or wrong. 2
The act of ratification must take place at a time, and under circumstances, when the ratifying party might
himself have lawfully done the act which he ratifies. 3
(2) Only such acts bind a principal by subsequent ratification as were done at the time on the principal's behalf.
4 What is done by a person on his own account cannot be effectually adopted by another. If an act be done
by a person on behalf of another, it is in general immaterial whether the authority be given prior or
subsequent to the act.
(3) An act which is illegal and void is incapable of ratification. 5 A ratification of tort by a principal will not free
the agent from his responsibility to third persons.
2. LIABILITY BY RELATION
2(A) Master and servant (i) Servant and Independent Contractor 2(A)(i)(a) Traditional view; Test of control
Page 2 of 38
A servant and independent contractor are both employed to do some work of the employer but there is a difference
in the legal relationship which the employer has with them. A servant is engaged under a contract of service
whereas an independent contractor is engaged under a contract for services. The liability of the employer for the
wrongs committed by his servant is more onerous than his liability in respect of wrongs committed by an
independent contractor. It is, therefore, necessary to distinguish between the two. The traditional mode of stating
the distinction is that in case of a servant, the employer in addition to directing what work the servant is to do, can
also give directions to control the manner of doing the work; but in case of an independent contractor, the employer
can only direct what work is to be done but he cannot control the manner of doing the work. 6 In Short V.J. & W.
Henderson Ltd ., 7 LORD THANKERTON pointed out four indicia of a contract of service : (1) Master's power of
selection of his servant; (2) payment of wages or other remuneration; (3) Master's right to control the method of
doing the work, and (4) Master's right of suspension or dismissal. The important characteristic according to this
analysis is the master's power of control for other indicia may also be found in a contract for services.
2(A)(i)(b) Modern view; Control test not exclusive
But the test of control as traditionally formulated was based upon the social conditions of an earlier age and “was
well suited to govern relationships like those between a farmer and an agricultural labourer (prior to agricultural
mechanisation), a craftsman and a journeyman, a householder and a domestic servant and even a factory owner
and a unskilled hand.” 8 The control test breaks down when applied to skilled and particularly professional work
and, therefore, in recent years it has not been treated as an exclusive test. 9 The Supreme Court in Dharangadhara
Chemical Works Ltd. v. State of Saurashtra 10 laid down that the existence of the right in the master to supervise
and control the execution of the work done by the servant is a prima facie test, that the nature of control may vary
from business to business and is by its nature incapable of any precise definition, that it is not necessary that the
employee should be proved to have exercised control over the work of the employee, that the test of control is not
of universal application and that there are many contracts in which the master could not control the manner in which
the work was done. The English Courts have also recognised that the control test is no longer decisive. 11 In
Montreal v. Montreal Locomotive Works Ltd . 12 LORD WRIGHT said that in the more complex conditions of
modern industry, more complicated tests have often to be applied. According to him, it would be more appropriate
to apply a complex test involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss; and
control in itself is not always conclusive. 13 LORD DENNING, as LORD JUSTICE, in Stevenson Jordan and
Harrison Ltd. v. Macdonald and Evens, 14 referred to the distinction between a contract of service and a contract
for services as a “troublesome question” and observed: “It is almost impossible to give a precise definition of the
distinction. It is often easy to recognise a contract of service when you see it, but difficult to say wherein the
difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a
contract of service; but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a contract for
services. One feature which seems to run through the instances is that, under a contract of service, a man is
employed as a part of the business; and his work is done as an integral part of the business; whereas under a
contract for services, his work, although done for the business, is not intergrated into it but is only accessory to it.”
15 According to the Supreme Court of United States, the test is not “the power of control whether exercised or not
over the manner of performing service to the undertaking”, but whether the persons concerned were employees “as
a matter of economic reality” and the important factors to be seen are “the degrees of control, opportunities of profit
or loss, investment in facilities, permanency of relations and skill required in the claimed independent operation”. 16
The Supreme Court in Silver Jubilee Tailoring House v. Chief Inspector of Shops, 17 after a review of the most of
the authorities mentioned above observed : “In recent years the control test as traditionally formulated has not been
treated as an exclusive test. It is exceedingly doubtful today whether the search for a formula in the nature of a
single test to tell a contract of service from a contract for service will serve any useful purpose. The most that
profitably can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not
all of these factors would be relevant in all these cases or have the same weight in all cases. It is equally clear that
no magic formula can be propounded, which factors should in any case be treated as determining ones. The plain
fact is that in a large number of cases, the Court can only perform a balancing operation weighing up the factors
which point in one direction and balancing them against those pointing in the opposite direction.” 18 It was also
pointed out that control is obviously an important factor and in many cases it may still be the decisive factor, but it is
wrong to say that in every case it is decisive. 19 It was further observed that the degree of control and supervision
Page 3 of 38
would be different in different types of business and that “if an ultimate authority over the worker in the performance
of his work resided in the employer so that he was subject to the latter's direction, that would be sufficient”. 20 In
Lee Ting Sang v. Chung Chi-Keung, 21 the Privy Council held a casual worker on a building site to be an employee
of the sub-contractor for whom he was working at the time he suffered an accident although it was found that he
worked from time to time for other contractors. In holding so the Privy Council approved the test laid down by
COOKE J which is as follows: Control will no doubt always have to be considered, although it can no longer be
regarded as the sole determining factor; and that factors, which may be of importance, are such matters as whether
the man performing the services provides his own equipment, whether he hires his own helpers, what degree of
financial risk he takes, what degree of responsibility for investment and management he has, and whether and how
far he has an opportunity of profiting from sound management in the performance of his task.” 22
In the context of a courier company which had employed by written ‘contract for service’ a number of persons as
bicycle couriers who owned their own bicycles and bore the expenses of running them but who on their uniforms
bore the logo of the company, the High Court of Australia in holding the company vicariously liable for an injury
caused by the negligence of a bicycle courier observed : “In general, under contemporary Australian conditions, the
conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should
carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be
characteristic of the conduct of that enterprise.” 23
2(A)(i)(c) Hospital Authorities
Consistent with the control test which was earlier followed, a hospital authority was not held liable for the negligence
of its staff in matters requiring professional skill 24 but with the change in the legal position that the control test is
not decisive in all cases and it breaks down when applied to skilled and professional work, a hospital authority has
now been held liable for negligence of its professional staff 25 and the distinction earlier drawn between
professional duties and ministerial or administrative duties has been disapproved. 26 The State has been held liable
for the negligence of the staff of a government hospital. 27 In Santa Garg v. Director National Heart Institute 28 the
Supreme Court quoted with approval the following proposition from DENNING L.J.'s judgment in Cassidy's case 29
: “The hospital authority is liable for the negligence of professional men employed by the authority under contract for
service as well as under contract of service. The authority owes a duty to give proper treatment-medical, surgical,
nursing and the like—and thought it may delegate the performance of that duty to those who are not its servants, it
remains liable if the duty be improperly or inadequately performed by its delegates”. In Santa Garg's case it was
held that a petition for compensation against a hospital could not be dismissed by a consumer forum on this ground
that the Doctors responsible for negligence were not joined.
2(A)(i)(d) Lending of Servant
A question very often arises as to whether when a general employer lends his servant with or without any machine
under a contract or otherwise to another person there is any change of master for the period the servant is doing
the work of that another person. This question becomes material when the servant commits a tort during the period
his services have been lent, for the person wronged can only make the real master vicariously liable. The principles
bearing upon this question that emerge from the leading authorities 30 are : (1) there is a strong presumption that
the general employer continues to be the master; (2) the burden is on the general or permanent employer to prove
that there is a transfer of service; (3) this burden can be discharged by proving only that entire and absolute control
over the servant was transferred to the hirer and that the servant had expressly or impliedly consented to the
transfer; and (4) a term in the contract between the general employer and the hirer stipulating as to who shall be the
master, though relevant for determining their inter se liability, is not conclusive against the person injured by the tort
of the servant. In Mersey Docks and Harbour Board v. Coggins & Griffith (Liverpool) Ltd . 31 the appellants let out
their crane and driver to the respondent Stevedores under a contract providing that the driver shall be the servant of
the respondent. The crane driver by his negligence injured a person giving rise to the question as to who was the
master at the time of the accident for purposes of vicarious liability. All the Courts held that there was no transfer of
the servant and the appellants continued to be the master and were, therefore, liable for the negligence of the
servant. LORD PORTER in his speech in the House of Lords pointed out that an arrangement for the transfer of the
services of the servant from one master to another can take place only with his express or implied consent and that
Page 4 of 38
it is not legitimate to infer that a change of masters has been effected because a contract has been made between
the two employers declaring whose servant the man employed shall be at a particular moment in the course of his
general employment by one of the two. He then observed : “The most satisfactory test, by which to ascertain who is
the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the
work upon which he is engaged. If someone other than his general employer is authorised to do this, he will, as a
rule, be the person liable for the employee's negligence. But it is not enough that the task to be performed should
be under his control, he must also control the method of performing it. It is true that in most cases no orders as to
how a job should be done are given or required; the man is left to do his own work in his own way. But the ultimate
question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders
as to how the work should be done. Where a man driving a mechanical device, such as a crane, is sent to perform
a task, it is easier to infer that the general employer continues to control the method of performance, since it is his
crane and the driver remains responsible to him for its safe keeping. In the present case, if the appellant's
contention were to prevail, the crane driver would change his employer each time he embarked on the discharge of
a fresh ship. Indeed, he might change it from day to day without any say as to who his master should be and with all
the concomitant disadvantages of uncertainty as to who should be responsible for his insurance in respect of
health, unemployment and accident.” 32 Although this was a case where a machine was let out with a man, the
same principle has been followed when man alone is sent for doing another's work. In the words of LORD
DENNING, M.R. : “Just as with employers who let out a man with a machine, so also with an employer who sends
out a skilled man to do work for another, the general rule is that he remains the servant of the general employer
throughout.” 33 Indeed the House of Lords decision in Mersey Docks and Harbour Board's case was followed by
the Privy Council in Bhoomidas v. Port of Singapore Authority , 34 where a gang of stevedores in the general
employment of the port authority of Singapore was hired out to a ship for loading a cargo of planks from the
wharfside and a member of the gang was injured by the negligence of another member of the gang. Although this
was a case where only men without any machine were sent to work for another, the Privy Council held that the
principle was the same and the general employers faced a “formidable” burden which they failed to discharge that
there was transfer of services of the gang to the ship. It was pointed out that no reported decision after the case of
Donavan v. Lang and Down Construction Syndicate 35 a decision which came for a good deal of criticism in Mersey
Docks case was brought to their notice in which the burden was successfully discharged. 36
Where a vehicle is let out on hire with the service of a driver, and an accident occurs through the negligent act of
the driver causing personal injuries to a third person, one test for determining who is the master for purposes of
vicarious liability, is the answer to the question—whether the driver in doing of the negligent act was exercing the
discretion given to him by his regular employer, or whether he was obeying a specific order of the hirer for whom,
on his employer's direction, he was using the vehicle. 37 Ordinarily, when a vehicle is hired with its driver, the driver
continues to exercise his own discretion which has been vested in him by his regular master. But, if the hirer
intervenes to give directions as to how to drive for which he possesses no authority and the driver pro hac vice (for
the occasion) complies with them and an accident occurs resulting in an injury to the third party, the hirer is liable as
joint tortfeasor and the general employer is not liable. 38
In Rajasthan State Road Transport Corporation v. Kailash Nath Kothari 39 the bus which met with an accident was
hired along with the driver by the corporation from a private owner. Although the driver continued to be under the
pay roll of the owner, his services were transferred alongwith complete control to the corporation under whose
directions, instructions and commands the driver was to ply or not to ply the bus on the road for which permit was
held by the corporation. In these circumstances the corporation and not the owner was held vicariously liable for the
tort committed by the driver. Laying down the principle applicable to the case ANAND J. observed : “The general
proposition of law and presumption arising therefrom that an employer, that is the person who has the right to hire
and fire the employee, is generally responsible vicariously for the tort committed by the concerned employee during
the course of his employment and within the scope of his authority, is a rebuttable presumption. If the original
employer is able to establish that when the servant was lent, the effective control over him was also transferred to
the hirer, the original owner can avoid his liability and the temporary employer or the hirer as the case may be, must
be held vicariously liable for the tort committed by the concerned employee in the course of his employment while
under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the pay
roll of the original owner’. 40
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In Australia on the authority of Soblusky v. Egan, 41 a defendant who is the owner or bailee of a motor vehicle is
liable for negligence of the driver if he appoints the driver to drive it on his behalf and he is in the vehicle or is
otherwise able to assert control over the driver. In Scott v. Davis 42 the respondent was the owner of a two seater
aeroplane for private use. The appellant who was a guest of the respondent requested for a joy ride. The
respondent's another guest, who was a licensed pilot, was requested by him to fly the plane and take the appellant
for a ride. The plane crashed as a result of negligence of the pilot who died and the appellant suffered injuries for
which he claimed damages against the owner. On these facts the majority in the High Court held that the owner
was not liable and that the ratio of Soblusky case should be confined to motor vehicles only.
Though a servant in the general employment of A may, for a particular purpose, be treated as in pro hac vice
employment of B, there is no principle which permits a servant to be in the de jure employment of two separate
masters at one and the same time. 43 Thus a compulsory pilot, while navigating a ship, is a servant of the
shipowner by virtue of section 15 of the Pilotage Act, 1913 and the general employer, i.e., the harbour authority, is
not vicariously liable for negligence of the pilot in navigating the ship. 44
2(A)(i)(e) Lending of Chattel
Although there is no relationship of master or servant when the owner permits his vehicle to be driven by another,
some similar principles have been applied to such cases also. If the owner retains the control of the vehicle by his
presence, he is clearly liable. 45 The owner will also be liable if the vehicle was being driven on his request by
another for his purpose even though he was not present in the vehicle and had no immediate control. 46 In such a
situation, the driver stands in the position of an agent of the owner. In Rambarran v. Gurrucharran, 47 it was held by
the Privy Council that the ownership of a motor vehicle raises an inference that the person driving at the time of the
accident was the agent or servant of the owner but the presumption can be rebutted by showing that the driver had
the general permission of the owner to use the vehicle for his own purposes. This was a case of a son driving the
car for his own purpose without the knowledge of his father but under an implied general permission and it was held
that the father who was the owner was not liable. The HOUSE OF LORDS in Morgans v. Launchbury, 48 also
negatived any special test applicable to a family car which was owned by one spouse but driven by the other at the
time of the accident. In this case the car was owned by the wife. The husband had the permission to use the car for
going to work and returning from work. He had also the permission to get it driven by a friend in case he was drunk.
At the time when the accident happened the car was being driven back by a friend of the husband who was drunk
to get the husband and car home. It will be seen that although the safe return of the husband and of the car was an
event in which the wife had an interest or concern, yet it was not the wife's purpose so as to constitute the husband
and much less the friend an agent of the wife. It was held that in order to fix liability on the owner of the car for the
negligence of its driver, it was necessary to show either that the driver was the owner's servant or that, at the
material time, the driver was acting on the owner's behalf as his agent. It was further held that to establish the
existence of agency relationship, it was necessary to show that the driver was using the car at the owner's request
or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.
The fact that the driver was using the car with the owner's permission and that the purpose for which the car was
being used was one in which the owner had an interest or concern was not sufficient to establish vicarious liability.
The owner would also not be liable if he had given up his right to control the vehicle 49 e.g. , when the vehicle had
been delivered to a bailee or an independent contractor even if he is present in the vehicle at the time of the
accident. 50 But where the owner is not vicariously liable under the general law for the tort committed by an
independent contractor or a bailee or their employees, liabiity may be fastened by statute. Thus it has been held
that having regard to the provisions ofsections 94 and 95 of the Motor Vehicles Act, 1939, the owner and his insurer
are liable to a third party for injuries sustained by him due to the negligent driving of a motor vehicle by an employee
of the repairer although the repairer is an independent contractor. 51
2(A)(ii) Liability of Master 2(A)(ii)(a) Principle of Liability
Why should a master be held liable for the torts committed by his servant in doing his business even when his
conduct is not blameworthy and he has used the greatest possible care in choosing the servant? One reason for
the rule is historical. “The status of a servant maintains many marks of the time when he was a slave. The liability of
the master for his torts is one instance. The notion that his (servant's) personality was merged in that of his family
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head (master) survived the era of emancipation”. 52 Another reason is grounded on public policy that “there ought
to be a remedy against someone who can pay the damages,” 53 and the master is expected to be in a better
position for paying the damages than the servant. 54 A third reason is expressed in the maxims Respondeat
Superior and quifacit per alium facit per se . In the words of CHELMSFORD, L.C. : “It has long been the established
law that a master is liable to third persons for any injury or damage done through the negligence or unskilfulness of
a servant acting in his master's employ. The reason of this is, that every act which is done by a servant in the
course of his duty is regarded as done by his master's orders, and, consequently it is the same as if it were the
master's own act, according to the maxim, qui facit per alium facit per se . 55 In Stavely Iron & Chemical Co. v.
Jones , 56 where the question was whether a crane driver was negligent or not in operating the crane which
resulted in injury to a fellow worker, DENNING, L.J. in the Court of Appeal expressed views to the effect that the
master could be held liable even if the crane driver was not negligent. The other two Lords Justices (HODSON and
POWEL, L.JJ.) based their judgment on the finding that the crane driver was negligent. The House of Lords
dismissed the appeal of the master and upheld the finding of negligence of the crane driver but disapproved the
views of DENNING, L.J. After quoting the relevant passage from the judgment of DENNING, L.J., LORD REID
observed: “If this means that the appellants could be held liable even if it were held that the crane driver was not
himself guilty of negligence, then I cannot accept that view, of course, an employer may be himself in fault by
engaging an incompetent servant or not having a proper system of work or in some other way. But there is nothing
of that kind in this case. DENNING, L.J. appears to base his reasoning on the maxim qui facit per alium facit per se
, but, in my view it is rarely profitable and often misleading to use Latin maxims in that way. It is a rule of law that an
employer, though guilty of no fault himself, is liable for damage done by the fault or negligence of his servant acting
in the course of employment. The maxims respondeat superior and qui facit per alium facit per se are often used,
but I do not think that they add anything or that they lead to any different results. The former merely states the rule
baldly in two words, and the latter merely gives a fictional explanation of it.” 57 In yet another case, Imperial
Chemical Industries Ltd. v. Shatwell, 58 the House of Lords held that if the servant whose wrongful act caused the
injury to the plaintiff could not be made liable as he could successfully, on the facts of the case, avail of the defence
of volenti non fit injuria , the master also could not be made liable. These two cases are said to have finally resolved
the controversy between “master's tort”, and “servant's tort” theories by ruling in favour of the latter that it is for the
servant's tort that the master is vicariously liable. 59 But the master will be primarily liable if there is a non-delegable
duty laid on him by common law or statute or when he is negligent in making selection of his servant. 60
2(A)(ii)(b)(i) Extent of Liability
“The law is settled that a master is vicariously liable for the acts of his servants acting in the course of employment.
Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other
words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and
unauthorised mode of doing some act authorised by the master. If the servant, at the time of the accident, is not
acting within the course of employment but is doing something for himself, the master is not liable.” 61 This
statement is an echo of the principle stated by Salmond in his work on Torts. Salmond further stated that ‘a master
is liable even for acts which he has not authorised provided they are so connected with acts which he has
authorised that they may rightly be regarded as modes – although improper modes — of doing them. 62 This
explanation by Salmond has gained importance and has given rise to ‘close connection test’ in recent years for
determining the question whether a wrongful and unauthorised act by the servant can be regarded as a wrongful
and unauthorised mode of doing some act authorised by the master or as wholly independent of it. 63 It is the link
of the master's business with the servant's wrongful act which makes the master liable. So the plaintiff to obtain a
judgment against the master “must establish a relationship between the servant's act and the master's business.
The question will be whether the servant was just doing the job badly or not doing the job at all, doing his own thing
instead. Considerations of time, place, equipment and purpose will all be relevant to this purely factual
determination.” 64 In other words, if the unauthorised and wrongful act of the servant is not so connected with the
authorised act as to be a mode of doing it, but is an independent act, the master is not responsible; for in such a
case the servant is not acting in the course of the employment but has gone outside of it. 65 Even patentally
fraudulent and criminal acts done by the servant, which were in no way authorised by the master, may be so
connected with the authorised act that they may be regarded as having been done in the course of employment
making the master vicariously liable. 66 In reality the connection test propounded by Salmond and applied by courts
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“is simply a practical test serving as a dividing line between cases where it is or is not just to impose vicarious
responsibility.” 67 The expressions “course of employment”, “sphere of employment” and “scope of employment”
mean the same thing and they imply that the matter must be looked at broadly not dissecting the servant's task into
its component activities.” 68 In speaking about the ‘close connection test’, LORD NICHOLAS in Dubai Aluminium
Ltd. v. Salaam 69 observed: “This ‘close connection test’ focusses attention in the right direction. But it affords no
guidance on the type of degree of connection which will be normally regarded as sufficiently close to prompt the
legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on
the firm or employer rather than the third party.— This lack of precision is inevitable, given the infinite range of
circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious
liability vary widely from one case or type of case to the other. Essentially the court makes an evaluative judgment
in each case having regard to all the circumstances and, importantly, having regard also to the assistance provided
by previous court decisions”. If the unauthorised wrongful act bore a ‘close connection’ with what the employee was
authorised to do, “it was no answer to a claim against the employer to say”, LORD MILLETT in the same case
observed, “that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious but
criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions,
or that his conduct was the very negation of his employer's duty.” 70 The method of approach in each case, where
master's vicarious liability is in issue is to answer two questions : “The first question is to see whether the servant
was liable. If the answer is yes, the second question is to see whether the employer must shoulder the servant's
liability.” 71 The first question rightly assumes that the question of master's liability can arise only when the servant
is liable. 72 The second question must be answered on the principles mentioned above 73 by factual determination
of the issue whether the servant's wrongful act was done in the course of his employment.
In Pushpabai Purshottam Udeshi v. M/s. Ranjit Ginning & Pressing Co. Pvt. Ltd . 74 the Supreme Court referred to
the observations of DENNING, L.J. in Ormrod v. Crossville Motor Services Ltd ., 75 that the owner is not only liable
for the negligence of the driver if that driver is his servant acting in the course of his employment but also when the
driver is with the owner's consent driving his car on owner's business or for the owner's purposes. The Supreme
Court then said that this extension has also been accepted by the Court. 76 The extension refers to cases where
the driver is not the servant of the owner. Ormrod's case was such a case. In this class of cases the test is to find
whether the driver was acting on behalf of the owner as his agent which means that he was driving the owner's
vehicle on his request or instructions in performance of a task or duty delegated to him by the owner. 77
2(A)(ii)(b)(ii) Course of Employment
The commonest cases these days of vicarious liability are those where a master is held liable for negligence of his
servant in driving his vehicle in the course of employment and where otherwise the servant was obviously acting in
course of employment. For example, the owner of a car was held liable for the negligence of his son, who was
employed in the owner's business, in driving the car which at the time of the accident was being demonstrated to
one about to join the business, 78 a Municipal Corporation was held liable for the negligence of its servant in driving
a car belonging to the Corporation on the Corporation's business 79 and a Bank was held liable when a security
guard on duty by mistake shot a customer believing that he would steal the cash box which had just arrived. 80 But
the cases that come to the Court very often present the problem whether the servant's wrongful act was merely a
mode of performing the authorised act or whether it was an act of the kind which the servant was not employed to
perform. The wide variety of facts in which these questions arise make it difficult to formulate specific rules for
guidance and all that can be said is that taking a broad view of the scope of employment, the question generally is
one of degree whether the wrongful act falls within the permissible limits of the hypothetical line demarcating the
area of authorised acts from the area of unauthorised acts. One of the methods of looking at the problem may be to
see whether the servant in doing the wrongful act has so deviated from the normal method of doing the authorised
act that the wrongful act cannot be properly described as merely a wrongful or unauthorised method of doing the
authorised act 81 or in other words whether the servant at the relevant time was “on a frolic of his own” 82 or having
“a joy ride” 83 instead of doing some act in the course of employment. Another mode of approach may be to apply
the close connection test to see whether the wrongful act of the servant was so connected with the master's
business that it will be just to impose vicarious liability on the master. 84
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In the case of a joint tort committed by two persons, only one of whom is the employee, what is critical for vicarious
responsibility is that the combined conduct of both the tortfeasors which is sufficient to constitute a tort was in the
course of the employee's employment and not whether that part of the act which was committed by the employee
amounted to a tort and was in the course of employment. 85 The reason is that in the case of joint torts both
tortfeasors are responsible for the tortious conduct as a whole and it is not necessary to distinguish between actions
of the different tortfeasors. 86 But employer would not be responsible for his employee's tort unless all the features
of the wrong necessary to constitute the tort had occurred in the course of employment. Therefore, the master is not
liable if the acts of his servant for which he is responsible do not in themselves amount to a tort but only amount to
tort when linked to other acts which were not performed in the course of the employee's employment. 87 An act of
an employee carried out with the intent of assisting a tort could not by itself amountto a free-standing tort to give
rise to vicarious responsibility and it was undesirable to develop new principles of primary tortious liability to extend
the vicarious liability of an employer. 88
The appellants in General Engineering Services Ltd. v. Kingston and Saint Andrew Corp . 89 owned certain
premises at Kingston, Jamaica. A fire broke out in the said premises on which the appellants promptly informed the
local fire brigade. The fire brigade took 17 minutes in reaching the appellants’ premises which was at a distance of
1 miles. The normal time for covering this distance was 3 minutes. By the time the fire brigade reached, the
premises were completely destroyed by fire. The reason why the firemen took 17 minutes instead of 3 minutes in
covering the distance was that they were operating a ‘go slow’ policy as part of industrial action. They had driven to
the premises by moving slowly forward, stopping, then moving slowly forward again, then stopping and so on until
they reached the premises. On these facts the question was whether the respondents, as employers of the firemen,
were vicariously liable to the appellants or whether, in other words, the firemen acted in the course of employment.
In negativing the liability of the respondents the Privy Council observed: “Their (the firemen's) unauthorised and
wrongful act was to prolong the time taken by the journey to the scene of the fire, as to ensure that they did not
arrive in time to extinguish it, before the building and its contents were destroyed. Their mode and manner of
driving, the slow progression of stopping and starting, was not so connected with the authorised act, that is driving
to the scene of the fire as expeditiously as reasonably possible, as to be a mode of performing that act.” 90 Here
the unauthorised and wrongful act was done, not in furtherance of the employers’ business, but in furtherance of the
emplyees’ industrial dispute to bring pressure on the employers to satisfy their demands. Such a conduct was held
to be a very negation of carrying out some act authorised by the master, albeit in a wrongful and unauthorised
mode.
In Beard v. London General Omnibus Co ., 91 the plaintiff was injured by the negligent driving of the conductor of
an omnibus, who, at the end of a journey, on his own initiative, and in the absence of the driver, took charge of the
omnibus and drove it round through some neighbouring bye-streets apparently with the intention of turning it round,
to be ready for the next journey. It was held that the masters were not liable for the negligence of the conductor in
driving the omnibus as he was not authorised to drive the vehicle. In this case the driver also did not authorise or
permit the conductor to drive the vehicle and apparently he was not negligent in leaving the vehicle in charge of the
conductor. It could not, therefore, be said that the driver was negligent in driving the vehicle. As regards the
conductor, the act of driving the vehicle was outside his scope of employment for it was clearly an act which he was
not authorised to perform and so his negligence could not make the master liable. In contrast in Ricketts v. Thomas
Tilling Ltd ., 92 where the master was held liable, the facts were that the conductor of an omnibus drove the
omnibus with permission of the driver who was sitting beside him for the purpose of turning it in the right direction
for the next journey and in that process by his negligence the vehicle mounted a foot pavement and injured a
person. It will be noticed that in this case the master's liability was for the negligence of the driver whose wrongful
act in permitting the conductor to drive the vehicle was an unauthorised mode of performing the authorised act of
driving the vehicle for the master's business. Both these cases were referred to by the Supreme Court in Sitaram
Motilal Kalal v. Santanuprasad Jaishankar Bhatt, 93 where the facts were that the owner had entrusted his car to a
driver for plying it as a taxi. The driver lent the taxi to the cleaner for taking it to the R.T.O.'s office for driving test.
The accident happened when the cleaner was driving while giving the driving test. The driver was then not in the
vehicle. It is clear from the facts that at the time the accident happened, the car was not being used as a taxi for the
owner's business. The car was then engaged in the work of the cleaner which had no connection whatsoever with
the owner's business. The driver in lending the car to the cleaner for taking a driving test did an act which he was
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not employed to perform and thus clearly acted beyond the scope of his employment which was to drive the car as
a taxi. The owner was, therefore, held not liable. The result would have been the same had the driver gone for a
picnic or taken the car for giving a joy ride to his friends, 94 or had the owner himself lent the car to the driver or
cleaner for the latter's private work. 95 In all these cases, use of the vehicle would be outside the course and scope
of employment. The principle that mere unauthorised mode of doing an authorised act does not go outside the
course and scope of employment and the master remains vicariously responsible is illustrated by the case of State
of Maharashtra v. Kanchanmala Vijaysing Shirke . 1 In this case, the accident happened when a government jeep
while being used on official duty, for bringing the employees of a government office, was driven by a clerk with the
permission of the driver who was in charge of the vehicle and who had consumed liquor. On these facts, the
Supreme Court held that this was a case where an authorised act was done in an unauthorised manner and the
State Government was vicariously liable. 2 Similarly, when the driver of a truck while on masters business left the
truck with the engine running in charge of the clearner and went to a nearby shop for bringing snacks and the
accident happened while the cleaner was on the wheels, the master and the insurance company were both held
liable. 3 Here the negligence was of the driver, while he was in the course of employment, in that he left the truck in
control of the cleaner. Indeed, it may be said that the owner of the vehicle has been generally held liable when the
driver is negligent in leaving the vehicle in such circumstances that an unauthorised person is able to drive it which
leads to the accident; the negligence which makes the owner liable in such cases is that of the driver. 4 The courts
also raise a presumption, which can be rebutted, that a vehicle is driven on the master's business and by his
authorised agent or servant. 5 The Supreme Court has, however, cautioned that in cases of employers, like the
Central and State Government, who are exempted from having their vehicles compulsorily insured against liabilities
arising from accidents, the courts should be more careful in inferring vicarious responsibility. 6
In the absence of any prohibition, it may be possible from the circumstances to infer authority in the servant to do
certain acts not covered by any positive direction. Acts done within the implied authority will obviously be in the
course of employment. “The course of the employment is not limited to the obligations which lie on an employee in
virtue of his contract of service. It extends to acts done on the implied authority of the master.” 7 In Pushpabai
Purshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd., 8 the facts were that the manager of the defendant
company was driving a car of the company on its journey from Nagpur to Pandhurna on the Company's business.
The manager took one Purshottam as a passenger in the car. The car met with an accident because of the
negligence of the manager in driving the car and Purshottam died. The High Court negatived the claim of the
dependants of the deceased against the Company on the reasoning that the manager in taking the deceased as a
passenger was not acting in the course of employment. The Supreme Court in reversing the decision of the High
Court observed : “In the present case a responsible officer of the Company, the manager, had permitted
Purshottam to have a ride in the car. Taking into account the high position of the driver who was the manager of the
Company, it is reasonable to presume, in the absence of any evidence to the contrary, that the manager had
authority to carry Purshottam and was acting in the course of employment.” 9
Questions have very often been raised as to whether a servant while going to the place of work or returning
therefrom acts in the course of his employment. Some general principles relevant to these questions were
formulated by the House of Lords recently in Smith v. Stages . 10 They are: “(1) An employee travelling from his
ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the
employer, is not on duty and is not acting in the course of his employment, but if he is obliged by his contract of
service to use the employer's transport, he will normally, in the absence of an express condition to the contrary, be
regarded as acting in the course of his employment while doing so. (2) Travelling in the employer's time between
workplaces (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether
accompanied by goods or tools or simply in order to reach a succession of workplaces (as an inspector of gas
meters might do), will be in the course of employment. (3) Receipt of wages (though not receipt of a travelling
allowance) will indicate that the employee is travelling in the employer's time and for his benefit and is acting in the
course of his employment and in such a case the fact that the employee may have discretion as to the mode and
time of travelling will not take the journey out of the course of his employment. (4) An employee travelling in the
employer's time from his ordinary residence to a workplace other than his regular workplace or in the course of a
peripatetic occupation or to the scene of an emergency (such as fire, an accident or mechanical breakdown of
plant) will be acting in the course of employment. (5) A deviation from or interruption of a journey undertaken in the
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course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being
(which may include an overnight interruption) take the employee out of the course of employment. (6) Return
journeys are to be treated on the same footing as outward journeys”. 11 The above general propositions are subject
to any express arrangements between the employer and the employee or those representing his interests. 12
Further they are not intended to define the position of salaried employees, with regard to whom the touchstone of
payment made in the employer's time is not generally significant. 13 In the case 14 in which the above propositions
were laid down two employees M and S were employed as peripatetic legger to install insulation at power stations
by Darlington Insulation Co. Ltd ., the employer. M and S were working on a power station in the Midlands when
they were taken off and sent to carry out an urgent job on a power station in Wales. They were paid eight hour's
pay for the travelling time to Wales and eight hour's pay for the journey back as well as the equivalent of the rail
fare for the journey, but no stipulation was made as to the mode of travel. M and S travelled to Wales in S's car.
After doing the work they decided to drive back to Midlands in the same car. On the way back the car met with an
accident because of the negligence of S in driving it and M suffered injuries. In an action by M for personal injuries,
which on his death was continued by his widow, the question was whether the employers were vicariously liable for
the negligence of S. It was held that as the employees had been paid while driving back to the Midlands they had
been travelling in the employer's time and so the journey back was in the course of employment and the employers
were vicariously liable for the negligence of S.
An employee met with an accident while he was on his way to the place of employment to join his duty. The
accident occurred about one K.M. away from the factory when the employee riding a cycle was hit by a lorry of the
employers. In a claim for disablement benefit under the Employee's State Insurance Act, 1948, it was held that the
accident did not arise in the course of employment of the claimant and he was not entitled to disablement benefit
under the Act. 15 It will be noticed that the claim was not under the general law or under the Motor Vehicles Act
against the lorry driver and the employer where the question would have been whether the lorry driver was
negligent and whether the accident arose in the course of employment of the lorry driver.
2(A)(ii)(b)(iii) Implied Authority
In general, a servant in an emergency has an implied authority to protect his master's property. 16 In Poland v.
John Parr & Sons 17 a carter who had handed over his wagon and was going home to his dinner, struck a boy
whom he suspected, wrongly but on reasonable grounds, of stealing his master's property. The master was held
liable for the consequences on the principle that a servant has implied authority at least in emergency to protect his
master's property. In holding the master liable, SCRUTOON, L.J., observed : “May be his action was mistaken and
may be the force he used was excessive, he might have pushed the boy instead of striking him. But that was
merely acting in excess of what was necessary in doing an act which he was authorised to do. The excess was not
sufficient to take the act out of the class of authorised acts.” 18 But the excess may be so great or the act so
outrageous as to take it out of the class for which the mastercould be made liable. For example, if in the above
case, the servant, instead of striking the boy had shot at him, the master could not have been made liable. 19
In the case of Riddell v. Glasgow Corporation 20 it was alleged that one Gilmour, a rate Collector, employed by the
Corporation, had defamed the appellant by charging her with forging a receipt and the Corporation was vicariously
liable. The question was whether the pleadings disclosed a triable case. In holding in favour of the Corporation,
LORD ATKINSON observed : “There is nothing, in my opinion, on the face of the pleading, to show expressly or by
implication that Gilmour was clothed with authority to express on behalf of the Corporation to ratepayers any
opinion he might form on the genuineness of any receipts which might be produced to him for payment of rates. It
was not shown by the pursuer's pleadings, as I think it should be, that the expression of such an opinion was within
the scope of Gilmour's employment; from which it follows, on the authorities, that the Corporation are not
responsible for a slander uttered by him in the expression of that opinion.” 21
A master, as stated above, is liable for acts done by a servant in performance of implied authority derived from the
exigency of the occasion, but to fasten the liability on the master, a state of facts must be proved to show that such
exigency was present or from which it might be reasonably be presumed that it was present. 22 In Keppel Bus Co.
Ltd. v. Sa'ad bin Ahmad 23 the conductor employed in one of buses of the appellant struck a passenger in the eye
with his ticket punch breaking his glasses and causing the loss of the sight of the eye. In a suit by the passenger for
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damages, the facts found were that the conductor was rude to an elderly Malay lady in the bus on which the
plaintiff-respondent remonstrated. An altercation broke out between them, but other passengers prevented them in
coming to blows. Thereafter the bus stopped and the lady got off and other passengers got in. The Collector began
collecting fares and at that stage again started abusing the respondent who stood up and asked the conductor not
to use abusive language. The respondent then sat down and after he had done so the conductor struck him. The
Privy Council accepted that the keeping of order amongst the passengers is part of the duties of a conductor but
they did not find any evidence of disorder among the passengers to justify assault and the master was held not
liable. In the words of LORD KILBRANDON : “The only sign of disorder was that the conductor had gratuitously
insulted the respondent and the respondent had asked him in an orderly manner not to do it again.—She (the Malay
lady) had by now left the bus, normalcy had been restored, except, apparently, for some simmering resentment in
the conductor which caused him to misbehave himself.— On the story as a whole, if any one was keeping order in
the bus, it was the passengers. The evidence falls far short of establishing an implied authority to take violent action
where none was called for.” 24
2(A)(ii)(b)(iv) Totality of circumstances to be seen
The course of employment is not broken simply because the wrongful act is one which is done by the servant for his
own comfort and convenience. The act must be seen not in isolation but in the context of all other facts and
circumstances to find out whether it did not form part of the method, though negligent or wrong, of conducting the
work entrusted to the servant. In Century Insurance Co. v. Northern Ireland Road Transport Board 25 the driver of a
petrol tanker lighted a cigarette and threw the match while the petrol was being transferred from the tanker to a
storage tank by means of a delivery pipe. The match ignited some material on the ground and the fire spread to the
manhole of the storage tank. The owner of the storage tank attacked the manhole with a fire extinguisher. The
driver of the tanker without turning off the stop-cock, drove the tanker into the street. The fire followed the trail of
petrol from the delivery pipe and when it reached the tanker, the tanker exploded causing damage to the storage
tank, owner's car and the neighbouring houses. In holding that the driver's act of starting smoking and throwing
away a lighted match was negligence in the course of employment, VISCOUNT SIMON, L.C. observed : “Denison's
(Driver's) duty was to watch over the delivery of the spirit into the tank, to see that it did not overflow, and to turn off
the tap when the proper quantity had passed from the tanker. In circumstances like these, ‘they also serve who only
stand and wait’. He was presumably close to the apparatus, and his negligence in starting smoking and in throwing
away a lighted match at that moment is plainly negligence in the discharge of the duties on which he was
employed.” 26 In contrast, even a permitted act may be so remote from the duties assigned to the servant that it
may fall outside the course of employment. In Hilton v. Thomas Burton (Rhodes) Ltd. 27 four workmen were
permitted to use their master's van for going to work on a demolition site in the country. After half a day's work, the
workmen decided to go to a cafe seven miles away for tea. When they had almost reached the cafe, they changed
their minds and started to return to the site of work. On the return journey an accident happened because of the
negligence in driving the van and one of them was killed. The master was not held vicariously liable as the men
were on ‘a frolic of their own’ and the accident did not happen in the course of employment.
2(A)(ii)(b)(v) Effect of Prohibition
It is not the law that whenever a servant does an act which his employer has prohibited him from doing, the act so
done falls outside the course of employment. Prohibitions fall under two categories : (1) those which limit the scope
or sphere of employment; and (2) those which merely affect or restrict the mode of doing the act for which the
servant is employed. If a servant violates a prohibition of the first category, his act will be outside the course of
employment and the master will not be vicariously liable; but if the violation by the servant is only of a prohibition of
the second category, the servant's act will still be in the course of employment making the master liable. This
distinction was admirably brought out by LORD DUNEDIN in Plumb v. Cobden Flour Mill Co. Ltd . 28 when he
observed: “There are prohibitions which limit the sphere of employment, and prohibitions which only deal with
conduct within the sphere of employment. A transgression of the prohibition of the latter class leaves sphere of
employment where it was and consequently will not prevent recovery of compensation. A transgression of the
former class carries with it the result that the man has gone outside the sphere.” 29
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In Canadian Pacific Railway Co. v. Leonard Lockhart , 30 the servant was employed as a carpenter and general
handy-man by the defendant Railway Company. In the course of his employment, the servant was required to make
repairs of various kinds to employer's property. He had to make a key for use in a lock in a station far away from his
headquarters. The Company had kept vehicles to be used by its servants and had issued notices to them warning
them against using their own cars for Company's business unless they had got the car to be used insured against
third party risk. The servant concerned had a car of his own which was not insured. Instead of using the Company's
vehicle, he used his car for going to the station where he had to make the key. On the way, an accident happened.
The Company was held liable for negligence of the servant in driving his car on the reasoning that though the
servant was not employed to drive a car, he was entitled to use that means of transport as incidental to execution of
that which he was employed to do, provided the car was insured; that the prohibition did not relate to the servant
acting as driver but to the non-insurance of the car and thus “the prohibition merely limited the way in which, or by
means of which, the servant was to execute the work and that the breach of the prohibition did not exclude the
liability of the master to third parties.” 31 And in Limpus v. London General Omnibus Co. 32 the drivers of
omnibuses were furnished with printed instructions saying that “they must not on any account race with or obstruct
another omnibus”, nevertheless the driver of one of the defendant's omnibuses did obstruct a rival omnibus and
caused an accident in which the plaintiff's horses were injured. The defendants were held liable because what his
driver did was merely an unauthorised mode of doing what he was authorised to do, namely, to promote the
defendant's business. Again in Ilkiw v. Samuels , 33 the facts were that a lorry driver was employed by a transport
company to drive their lorry to a sugar warehouse, pick up a load of sugar and transport it to its destination. The
driver took the lorry to the warehouse and backed it into position by a conveyor belt from which the sugar was to be
loaded into the lorry. The driver stood on the back of the lorry to take the sacks from the conveyor belt and stack
them on the lorry. When loaded, the lorry had to be moved a short distance to enable the driver to sheet the load
and to make room for other lorries. A person employed at the wharehouse offered to move the lorry. The driver
accepted the offer. That person while moving the lorry, was unable to stop it and due to his negligence in driving, a
labourer was injured. The driver throughout remained at the back of the lorry. The driver had strict instructions from
his employer not to allow anyone else to drive the lorry. The employers were held liable not for the negligence of the
stranger, but for the negligence of the driver in the course of his employment in permitting the stranger to drive the
lorry. It will be seen that the stranger was permitted to drive the lorry for the employer's business and, therefore, the
violation of the instructions by the driver in that context was only an unauthorised mode of doing what he was
employed to do and hence it fell within the course of employment.
The question of prohibition has also been considered in some cases in the context of injury to a person who has
been given a lift in the master's vehicle by his driver contrary to his instructions. The leading authority now on this
question is Rose v. Plenty . 34 The majority decision 35 in this case settles two points : (1) the question of master's
liability is not to be considered from the view point that a passenger taken contrary to instructions is a trespasser
qua the master; and (2) the master is liable only if the passenger is taken in the course of employment, although
contrary to master's instructions, which means that there is a link between the lift given to the passenger by the
driver and the master's business. Before discussing the facts of Rose v. Plenty , 36 it is convenient to notice two
earlier cases, viz., Twine v. Bean's Express Ltd . 37 and Conway v. George Wimpey & Co. Ltd . 38 In Twine's case,
39 the defendants provided for the use of a bank a commercial van and a driver on the terms that the driver
remained the servant of the defendants and that the defendants accepted no responsibility for injury suffered by
persons riding in the van who were not employed by them. There were two notices in the van, one stating that no
unauthorised person was allowed on the vehicle, and the other, that the driver had instructions not to allow
unauthorised travellers on the van, and that in no event would the defendants be responsible for damage
happening to them. One person who was not authorised to ride in the van got a lift in the van with the consent of the
driver. Owing to the negligence of the driver, there was an accident and that person was killed. In negativing the
defendants’ liability for negligence of the driver, LORD GREEN, M.R. observed that his act of driving was no doubt
in the course of employment but “the other thing he was doing simultaneously was something totally outside the
scope of his employment, namely, giving a lift to a person who had no right whatsoever to be there.” 40 Conway v.
George Wimpey & Co. Ltd . 41 was also a similar case. In this case the defendants, a firm of contractors, were
engaged in building work at an aerodrome, and they provided lorries to convey their employees to the various
places of their work on the site. In the cab of each lorry there was a notice indicating that the driver was under strict
orders not to carry passengers other than the employees of the defendants during the course of, and in connection
Page 13 of 38
with, their employment, and that any person travelling on the vehicle did so at his own risk. Further, the driver of the
lorry had received clear oral instructions prohibiting him from taking other passengers. The plaintiff who was
employed as a labourer by another firm of contractors at the aerodrome, while on his way to work, was permitted by
the driver to ride on one of the defendants’ lorries for some distance across the aerodrome and while dismounting
the plaintiff was injured owing to driver's negligence. In holding that the defendants were not vicariously liable,
ASQUITH, L.J., observed: “Taking men other than the defendants’ employees on the vehicle was not merely a
wrongful mode of performing an act of the class which the driver was employed to perform, but was the
performance of an act of a class which he was not employed to perform at all.” 42 In both, Twine's case and
Conway's case, the giving of lift to unauthorised person by the driver had no connection whatsoever with the
master's business making it fall outside the course of employment. And this is the main distinction between these
cases and Rose v. Plenty 43 where the facts were that the first defendant Plenty was employed as a milk-rounds-
man by the second defendants, a Dairy company. There were notices at the Depot making it quite clear that the
rounds-men were not allowed to take children and young persons on the vehicles or to employ them in the
performance of their duties. The job of a rounds-man was to drive his float around his round and to deliver milk, to
collect empties and to obtain payment. The plaintiff Rose , a boy of 13, was given a lift by the first defendant Plenty
to help him. Whilst plaintiff was going round some houses, the first defendant would go to others. The plaintiff
suffered a fracture of the leg because of the negligence of the second defendant in driving the float. The Court of
Appeal by a majority decision held the Dairy company vicariously liable. LORD DENNING, M.R. observed: “In
considering whether a prohibited act was within the course of the employment, it depends very much on the
purpose for which it is done. If it is done for his employer's business, it is usually done in the course of his
employment, even though it is a prohibited act. But if it is done for some purpose other than his master's business,
as for instance, giving a lift to hitchhiker, such an act, if prohibited, may not be within the course of his employment.
Both Twine v. Bean's Express Ltd . 44 and Conway v. George Wimpey & Co. Ltd . 45 are to be explained on their
own facts as where a driver had given a lift to someone else contrary to a prohibition and not for the purposes of the
employers. In the present case, it seems to me that the course of Mr. Plenty's employment was to distribute the
milk, collect the money and to bring back the bottles to the van. He got or allowed this young boy, Leslie Rose , to
do part of that business. It seems to me that although prohibited, it was conduct which was within the course of the
employment.” 46 In the same case, after referring to Conway's case, SCARMAN, L.J., said: “That was also a case
of lift; the person lifted was not in any way engaged, in the course of the lift or otherwise, in doing the master's
business. In the present case, the first defendant, the servant, was employed to deliver milk, to collect empties, to
obtain payment from the customers. The plaintiff was there on the float in order to assist the first defendant to do
those jobs. I would have thought, therefore, that whereas Conway v. George Wimpey & Co. Ltd. 47 was absolutely
correctly decided on facts, the facts of the present case lead to a very different conclusion.” 48
A Full Bench case of the Madhya Pradesh High Court 49 seems to have been decided without noticing the
distinction between cases where the giving of lift to an unauthorised person has no nexus with the master's
business and cases where such a nexus is present. In this case, the facts were that the owner of the goods that
were being transported in a motor-truck was given a lift by the driver of the truck without the permission of the
owner of the truck. This act of the driver was in contravention of Rule 105 of the Motor Vehicles Rules providing that
no person should be carried in a goods vehicle other than a bona fide employee of the owner or hirer of the vehicle.
A reading of the judgment shows that the view of the Full Bench was that in no case a contravention of the rule will
affect the sphere of employment which was “to drive the vehicle in execution of the master's business from
Udaigarh to Indore.” 50 It is submitted that the question whether the contravention of such a statutory rule or a
similar direction of the master affects merely the mode of doing what the servant is employed to do or pertains to
the sphere or scope of employment cannot be decided in the abstract without appreciating the facts constituting the
contravention. If the driver gives a lift to a person who has nothing to do with the master's business, e.g. a
hitchhiker, as explained by LORD DENNING in Young v. Edward Box & Co. Ltd . 51 and Rose v. Plenty 52 (both
cases were referred to by the Full Bench), the giving of lift will not be in the course of employment but if the lift is
given to a person for facilitating the work of the master, as was the case in Rose v. Plenty , 53 the giving of lift,
though unauthorised, will still be in the course of employment. The Full Bench decision, however, can be supported
on the reasoning that the owner of the goods, that were being transported, travelled in the truck to facilitate safe
transportation of the goods, which was the business in which the truck was engaged, and, therefore, the giving of lift
by the driver to the owner of the goods was for the master's business and fell within the course of his employment.
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The Punjab & Haryana High Court 54 had also to consider the effect of contravention of a similar Motor Vehicles
Rule. In this case, the person given a lift by the driver of the motor-truck had absolutely no connection with the
business in which the truck was engaged and the master was rightly held to be not liable. Another case that may be
mentioned in this context is a decision of the Madras High Court. 55 In this case, a tourist taxi authorised by the
Motor Vehicles Rules to carry only 5 passengers, carried 7 passengers and met with an accident. The owner was
held liable on the ground that the restriction as to the number of passengers imposed by the Rules related only to
the manner of performance of the driver's duty and did not restrict the scope of employment. It will be seen that the
extra passengers were carried by the driver to promote the master's business and the decision against the owner is
fully justified. These cases 56 also show that the principle applicable to violations of statutory prohibitions are the
same as applicable to violations of prohibitions proceeding from the master. The only difference that may possibly
be drawn is that in the case of a prohibition imposed by a statute or a statutory rule, it may be difficult for a third
party to presume the existence of any implied authority in the servant contrary to the prohibition for everyone is
presumed to know the law, but in case of a prohibition imposed solely by the instructions of the master which are
not notified for general information, it is possible that in certain circumstances a third party dealing with the servant
may reasonably assume an implied authority contrary to the prohibition. But even in cases of statutory prohibitions,
which are not absolute but require the obtaining of a licence or permission from an authority, a third party may
proceed on the assumption that the owner or the servant must have obtained the required licence or permission. 57
2(A)(ii)(b)(vi) Dishonest and criminal acts
A master is not liable for a dishonest or criminal act of his servant where the servant merely takes the opportunity
afforded by his service to commit the wrongful act. 58 For example, if a window cleaner steals an article from the
room where he is doing the window cleaning work, his employer is not liable. 59 Similarly, when a servant assaults
another, whom he meets in the course of his work, out of personal vendetta, and the assault has no relation to the
master's work, the master is not liable. 60 But if the wrongful act is committed for the benefit of the master and while
doing his business, the master is liable. “The master is answerable for every such wrong of the servant or agent as
is committed in the course of the service and for the master's benefit, though no express command or privity of the
master is proved.” 61 The master will also be liable if the servant while doing the wrongful act was acting within the
apparent scope of his authority even though the act was done for his own benefit or for the benefit of some person
other than the master. This extension of the course of employment was made by the House of Lords in Lloyd v.
Grace, Smith & Co . 62 where the managing clerk of a firm of solicitors induced a client of the firm to transfer a
mortgage to him by fraudulently representing the nature of the deed and, thereupon, obtained and misappropriated
the mortgage money. The solicitors were held liable as their managing clerk in accepting the deed was acting within
the apparent scope of his authority although fraudulently for his own benefit. Similar were the facts in Uxbridge
Permanent Benefit Building Society v. Pickard 63 where a Solicitor's managing clerk obtained an advance of a sum
of 500 upon a mortgage of property by producing to a building society's solicitors a fictitious deed. It was not proved
that the solicitor's clerk actually forged the deed, but he must have known that it was a forged document. The clerk
had apparent authority for all that he did in the matter. It was held that so long the clerk was acting within his
apparent authority, the master was liable despite the fact the fraud involved forgery. After referring to these cases,
LORD DENNING, M.R., observed : “In consequence of this apparent authority, the firm of solicitors were clearly
under a duty to deal honestly and faithfully and they could not escape that duty by delegating it to their agent. They
were responsible for the way he conducted himself therein, even though he did it dishonestly for his own benefit.”
64 The master's liability in tort for frauds of his servant resembles the principal's liability on contracts entered by his
agents. Therefore, if the servant had no actual authority nor was he acting for the master's benefit and the person
injured by the fraudulent or dishonest act of the servant could not have reasonably regarded the servant as
possessing any apparent authority in dealing with him, the master cannot be made liable simply because the acts
done by the servant were of a class which he was authorised to do on the master's behalf. 65 When an employee
has neither ostensible nor express authority to enter into contract and when the fact that the employee needs
express authority is known to the third party, the employer is not vicariously liable for deceit if the employee
fraudulently stating that he has obtained the requisite authority induces the third party to enter into a contract. 66 In
other words the employer is liable where he has by words or conduct induced the injured party to believe that the
servant was acting in the lawful course of the employer's business; but the employer is not liable where such belief
although it is present, has been brought about through misguided reliance on the servant himself when the servant
Page 15 of 38
is not authorised to do what he is purporting to do when what he is purporting to do is not within the class of acts
that the employee in his position is usually authorised to do and when the employer has done nothing to represent
that he is authorised to do it. 67
In State Bank of India v. Shyama Devi 68 the plaintiff who had a Savings Bank account with the Bank, handed over
a cheque and cash to an employee of the Bank who was a neighbour and friend of the plaintiff's husband with a
letter of instructions and pass-book for being credited to her account. The employee misappropriated the amount
and made false entries in the pass-book. The employee was not in charge of the Savings Bank counter and the
cheque and cash were not handed over to the counter-clerk concerned. On these facts the Supreme Court held that
the Bank was not liable for the fraud of the employee. The employee concerned here had no actual or apparent
authority to accept on behalf of the Bank cheque or cash for being deposited in Savings Bank Accounts and the
money was not received by him in the normal course of business of the Bank. Indeed, the employee was
constituted agent of the plaintiff when she sent the cheque and cash with letter of instructions through him for being
credited to her Savings Bank Account. The employee's fraud was, therefore, not in the course of his employment
and all that could be said was that “the fact of his being an employee of the Bank” gave him an opportunity to
commit the fraud.
As regards theft or similar acts in relation to goods, the general proposition has been stated to be “that when a
principal has in his charge the goods or belongings of another, in such circumstances that he is under a duty to take
all reasonable precautions to protect them from theft or depredations, then if he entrusts that duty to a servant or
agent, he is answerable for the manner in which that servant or agent carries out his duty. If the servant or agent is
careless so that they are stolen by a stranger, the master is liable. So also if the servant or agent himself steals
them or makes away with them.” 69 Negligence in the discharge of duty or theft by a servant who is entrusted with
the custody of goods by his master is in the course of his employment and so the master is liable to the owner of
the goods. But if the conduct of the servant entrusted with the custody of goods is not blameworthy, and some other
servant, who has nothing to do with the goods, taking the opportunity of being in service steals them, the master is
not liable for the theft by such a servant is not in the course of employment. 70 In United Africa Company Ltd. v.
Saka Owoade , 71 the appellant company had expressly entrusted to servants of the respondent, a transport
contractor, at his request, goods for carriage by road, and the servants stole the goods. The respondent was held
liable by the Privy Council as the conversion took place in the course of employment. It was observed that there is
no difference in the liability of a master for wrongs whether for fraud or any other wrong committed by a servant in
the course of employment, and it is a question of fact in each case whether it was committed in the course of
employment. 72 Similarly in Morris v. C.W. Martin & Sons Ltd . 73 the plaintiff delivered her mink stole to one
Bedser for getting it cleaned who with the permission of the plaintiff delivered it to the defendants for that purpose.
The defendants’ servant who was entrusted with the job instead of cleaning it stole it. The defendants were held
liable for the theft of the article as it was in the course of employment. In contrast in Leesh River Tea Co. Ltd. v.
British India Steam Navigation Co. Ltd . 74 the shipowners were not held liable for theft of a brass plate by a
stevedore which made the ship unseaworthy and resulted in damages to the cargo. The stevedore was engaged by
the shipowners for loading and unloading of cargo and he was in no other way connected with the ship or parts of
the ship and so the theft of the brass plate by him was entirely outside the course of his employment although his
employment did give him an opportunity to steal the plate.
The ‘close connection test’ to which reference has already been made 75 has been recently applied in cases of
sexual abuse by employees. In the Canadian case of Bazley v. Curry, 76 sexual abuse was committed by an
employee of a children's foundation who had been engaged as a parent-figure caring for emotionally troubled
children in a children's home. The Canadian Supreme Court held that there was sufficient connection between the
acts of the employee and the employment and, therefore, vicarious liability of the employer was established. On the
other hand in another similar case, Jacobi v. Griffiths 77 where sexual abuse took place in the employee's home
outside working hours and away from the club which was the principal place of employment, the Supreme Court did
not find sufficient connection between the employee's acts and the employment from the fact that the club had
provided an opportunity to the employee to establish friendship with the children and vicarious liability was held to
be not established. Both these decisions and the close connection test applied in them were referred with approval
by the House of Lords in Lister v. Hesley Hall Ltd. 78 In this case the plaintiffs were resident for a few years at a
school for boys with emotional and behavioural difficulties, owned by the defendants who employed a person to
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take care of the boys as warden of the school's boarding house. The warden systematically sexually abused the
plaintiffs while they were resident at the school. In holding the defendants vicariously liable the court held that the
defendant had undertaken to care for the boys through the services of the warden and there was a very close
connection between his employment and his torts which were committed in the premises of the defendants while he
was busy caring for the children in performance of his duties.
The close connection test was also applied in Dubai Aluminum Co. Ltd. v. Salaam 79 for holding a firm liable for the
fraudulent act of one of its partners which were not authorised by other partners. It was further applied to hold a
nightclub vicariously liable for the act of a bouncer employed by the club in causing injury by a knife to a patron
outside the club premises for which he was not authorised. The owner of the club encouraged the bouncer to be
aggressive in ejecting his patrons. This furnished the link for holding the owner liable. 80
2(A)(ii)(b)(vii) Doctrine of common employment
The doctrine of common employment has its origin in Priestley v. Fowler 81 which laid down that a master was not
liable to a servant who was injured by the wrongful act of a fellow servant who was at the time in common
employment with him. The enactment of the Employers’ Liability Act, 1880 introduced in English law a number of
exceptions to the doctrine. The English Courts also did not favour it and restricted its application. 82 In Secretary of
State v. Rukhminibai , 83 the Nagpur High Court refused to apply the doctrine in India in so far as it was abolished
in England by the Employers’ Liability Act. After this case, the Indian Legislature enacted the Employers’ Liability
Act, 1938. The Privy Council in Brocklebank Ltd. v. Noor Ahmode 84 left the question open whether the doctrine of
common employment so unsatisfactory both as to its policy and as to its practical results ought to be followed at all
by the Indian Courts as a part of the law in India. The doctrine was abolished in England by the Law Reform
(Personal Injuries) Act 1948. The Privy Council had again to consider the question of the application of the doctrine
to India in Governor General in Council v. Constance Zena Wells 85 and it was held that it applied in so far as it
was not abrogated by the Employers’ Liability Act, 1938. By a restrictive construciton of section 3 (d) of the Act, it
was held that where a personal injury is caused to a workman in the normal performance of his fellow servant's
duties, section 3 (d) did not apply and did not operate to take away the defence of common employment in a suit for
damages. But the lacuna pointed out by the Privy Council was promptly remedied by the Employers’ Liability
(Amendment) Act, 1951. Section 3 (d) as amended now expressly negatives the defence of common employment
when injury is caused by a fellow servant in the normal performance of his duties. The Act also introduces a new
Section 3A making void any collateral agreement excluding or limiting any liability of the employer under the Act.
The definition of workman in the Act is very wide so as to include all employees. After the aforesaid statutory
amendments, it can be safely asserted that the doctrine of common employment cannot be applied in India and a
master is liable to a servant of his in the way he is liable to any other person for injuries caused by his employees
acting in the course of employment. In addition an employer directly owes certain common law duties and statutory
duties in his employees’ favour but these are not cases of vicarious liability and are dealt with elsewhere. 86
2(A)(ii)(b)(viii) Compulsory Employment
A master is not liable for the torts committed by a servant whose appointment is compulsory under the law and
when he has practically no power of selection. 87 But the employer is not absolved from liability merely because the
appointment of a servant or agent for doing certain work is compulsory under the law if he is allowed power of
control and the class from which appointment is to be made is sufficiently large to give the employer a practical
power of selection. 88 The difference lies between virtually directing that a person be appointed and in limiting and
regulating the choice of the master by prescribing qualifications of the servant and/or the mode of selection.
2(A)(ii)(b)(ix) Vicarious liability of State
The State is liable vicariously for the torts committed by its servants in the course of employment. But there are
certain areas where the State is not liable and the subject has been discussed elsewhere. 89
2(A)(iii) Master's right to recover damages from servant

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The law implies a term in contract between employer and employee that the employee will exercise reasonable
care in performance of his work and, therefore, if the master is obliged to pay damages to a third party for wrongs
committed by the servant, he can recover that amount from the servant in a suit for damages for breach of the
implied term. It was so held by the House of Lords in Lister v. Romford Ice and Cold Storage Co. Ltd . 90 In this
case, the facts were that a lorry driver employed by a company took his father, a fellow servant, with him as a mate.
In backing the lorry, he injured his father by negligent driving. The father recovered damages in an action against
the company for the negligence of the driver. The Company then brought an action against the driver claiming that,
as joint tortfeasor, it was entitled (1) to contribution from him under section 6 of the Law Reform (Married Women
and Tortfeasors) Act, 1935 and (2) to damages for breach of an implied term in his contract of service that he would
use reasonable care and skill in driving. The House of Lords held that the driver was under a contractual obligation
of care to his employer in the performance of his duty as a driver and that the Company was entitled to recover from
the driver damages for breach of that contractual obligation even if the employer had insurance cover against his
liability to the party injured by the negligence of the servant. In England the decision was not well received and a
Committee was constituted to study its implications. 91 The Committee did not recommend to nullify the decision by
legislation for it thought that the employers and their insurers who would be the real plaintiffs by subrogation, in the
interests of good industrial relations were not likely to unreasonably exploit their rights under the said decision. In
consequence of the Committee's report, the members of the British Insurance Association agreed not to institute a
claim against the employee of an insured employer in respect of death or injury to a fellow employee unless the
weight of evidence indicated collusion or wilful misconduct of the employee against whom the claim was made. 92
This “gentleman's agreement” did not cover a case where the person injured by the employee of the insured was
not a fellow servant. Such a situation arose in Morris v. Ford Motor Co . 93 where the Court by a majority held that
though a contract of indemnity including a contract of insurance by its very nature implied a right of subrogation as a
necessary incident of that contract, yet the contract might, by implication, exclude this right and that such an
implication arose when the contract was operative in an industrial setting where recovery of damages from the
employee by exercise of right of subrogation would lead to industrial strife or where it would be unjust to make the
employee personally liable. No employer normally brings a suit against his servant to enforce his right under the
Lister case for the reasons that very often he is covered by insurance, the servant is not in a position to pay and a
suit against the servant in case of industrial employment is likely to prejudicially affect the industrial relations with
the workers. The Insurance Companies also normally do not enforce their right of subrogation against the employee
of the insured for generally it is not possible to recover the amount from the employee. So the principle of the Lister
case is a dead letter in England 94 .
In India it has been held that when an officer of the government or a public authority acts maliciously and
oppressively causing harassment and agony to the plaintiff, the government and authority made liable for damages
must recover the amount from the officers who are responsible. 95 The reason is that when the government or a
public authority is made to pay damages the burden really falls on the citizens as taxpayers and there is no
justification for burdening them for malicious and oppressive conduct of the officers.
2(B) Employer and Independent Contractor
An independent contractor is one who undertakes to produce a given result without being in any way controlled as
to the method by which he attains that result. In the actual execution of the work he is not under the order or control
of the person for whom he does it, but uses his own discretion in things not specified beforehand. A servant is an
agent who works under the supervision, control and direction of his employer. 1 This is the traditional distinction
between an independent contractor and a servant and is now subject to many qualifications which have been
discussed earlier. 2
If an independent contractor as distinguished from a servant is employed to do some work and in the course of the
work he or his servants commit any tort, the employer is not answerable. 3 Employer's right to inspect works, to
decide as to the quality of materials and workmanship, to stop the works or any part thereof at any stage, to modify
and alter them, and to dismiss disobedient or incompetent workmen employed by the contractor, does not render
him liable to third persons for the negligence of the contractor in carrying out the work. 4 One employing another is
not liable for his collateral negligence unless the relationship of master and servant existed between them. 5 An
employer who commissions work to be done near a highway which if done with ordinary care by a skilled workman
Page 18 of 38
presents no hazard to anyone and does not constitute a nuisance but which if done negligently may endanger
users of the highway, and who employs an apparently competent independent contractor to do the work is not liable
for the negligence of that contractor in doing it. 6 The plaintiff who was visiting a block of flats on the business of
one of the tenants sustained injury through the breaking of the cylinder band of a hydraulic lift. The landlord was in
occupation of those parts of the building which were not occupied by tenants. The lift was looked after by a firm of
engineers. The cause of the accident was the faulty repacking of the cylinder band by a mechanic of the firm of
engineers. It was held that the landlord was not liable to the plaintiff but the firm of engineers was. 7
Exceptions .—It has been said that there are exceptions to the general rule that an employer is not liable for the
torts of his independent contractor. Properly analysed, the cases which are referred to as exceptions are those in
which either the employer is in some way party or privy to the tort or is in breach of some duty primarily laid on him.
For example if the employer is negligent in selecting a proper person as a contractor or a servant, he is in breach of
his duty and if the contractor or the servant commits a tort, he would be liable for breach of this duty. Similarly, if the
duty laid on the employer by common law or statute is to produce a given result or to see that care is taken as
distinguished from duty to take reasonable care, he is not absolved from his duty by employing with reasonable
care a contractor or a servant to do the job. These are instances of nondelegable duties or duties primarily laid on
the employer and he would be liable if there is a breach of these duties whether he appoints a servant or an
independent contractor. 8 Apart from statute, the non-delegable duty, which may be termed as special duty, “arises
because the person on whom it is imposed has undertaken the care, supervision or control of the person or
property of another or is so placed in relation to that person or his property as to assume a particular responsibility
for his or its safety in circumstances where the person affected might reasonably expect that due care will be
exercised”. 9 In these situations the duty is not merely to use reasonable care but to ensure that reasonable care is
used even by an independent contractor whom he employs. 10 Further “if the task which an independent contractor
is employed to perform carries an inherent risk of damage to the person or property of another and the risk
eventuates and causes such damage, the employer may be liable even though the independent contractor
exercised reasonable care in doing what he was employed to do, because the employer authorised the running of
the risk and the employer may be in breach of his own duty for failing to take the necessary steps to avoid the risk
which he authorised. 11 The so-called exceptions to the rule that the employer is not liable for the tort of the
independent contractor are not, therefore, technically exceptions but are cases where the employer is made liable
for his own fault or breach of duty and not vicariously for the fault or breach of duty of the contractor. They are
called exceptions only as a matter of convenience and are as follows:—
(1) Where the employer retains his control over the contractor and personally interferes and makes himself a
party to the act which occasions the damage; 12
(2) Where the thing contracted to be done is itself wrongful. In such a case the employer is responsible for the
wrong done by the contractor or his servants, and is liable to third persons who sustain damage from the
wrong doing. 13 For instance, if a man employs a contractor to build a house, who builds it so as to darken
another person's windows, the remedy is not agianst the builder, but the owner of the house.
A gas company, not authorised to interfere with the streets of Sheffield, directed their contractor to open
trenches therein. The contractor's servant, in doing so, left a heap of stones, over which the plaintiff fell and
was injured. It was held that the defendant company was liable, as the interference with the streets was in
itself a wrongful act. 14 Similarly, when the trustees of a temple employed a contractor to get electric
connection for use of lighting and mike arrangements in the temple from the well of an agriculturist without
informing and obtaining the permission of the Electricity Board and a person was injured as the wires used
by the contractor snapped, the trustees were held liable as the act of diverting electricity without permission
of the Board was in itself an illegal act; 15
(3) Where legal or statutory duty is imposed on the employer, he is liable for any injury that arises to others in
consequence of its having been negligently performed by the contractor. 16
No one can get rid of such a duty by imposing it upon an independent contractor. The employer remains
liable to those who are injured by the non-performance of the duty, even though the contractor has agreed
to indemnify him. 17
Page 19 of 38
If a man does work on or near another's property, which involves danger to that property unless proper care
is taken, he is liable to the owners of the property for damage resulting to it from failure to take proper care,
and is equally liable if, instead of doing the work himself, he procures another to do it for him. 18
Where a person employs a contractor to do work in a place where the public are in the habit of passing,
which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the
person who orders the work to be done to see that the necessary precautions are taken, and if the
necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the
contractor. 19 It is the duty of a person who is causing such work to be executed to see that they are
properly carried out so as not to occasion any damage to persons passing by on the highway. 20
Two houses adjoined, built independently, but each on the extremity of its owner's soil and having lateral
support from the soil on which the other rested. This continued for twenty years and afterwards some
alterations were made in one of the buildings openly and without deception. More than twenty years after
the alterations the owners of the adjoining house employed a contractor to pull down their house and
excavate, the contractor being bound to shore up adjoining buildings and make good all damage. The
contractor employed a sub-contractor upon similar terms. The house was pulled down, and the soil under it
excavated to a depth of several feet, and the plaintiffs’ stack being deprived of the lateral support of the
adjacent soil sank and fell, bringing down with it the plaintiffs’ house. It was held that the plaintiffs were
entitled to damages from the owners of the adjoining house and the contractor for the injury. 21 A district
council employed a contractor to construct a sewer for them. In consequence of his negligence in carrying
out the work a gas-main was broken, and the gas escaped from it into the house in which the plaintiffs (a
husband and wife) resided, and an explosion took place, by which the wife was injured, and the husband's
furniture was damaged. In an action by the plaintiffs against the district council and the contractor, it was
held that the district council owed a duty to the public (including the plaintiffs), so to construct the sewer as
not to injure the gas-main; that they had been guilty or a breach of this duty; that, notwithstanding that they
had delegated the performance of the duty to the contractor, they were responsible to the plaintiffs for the
breach. 22 A was empowered under an Act to make a drain from his premises to a sewer, by cutting a
trench across a highway, and filling it up after the drain should be completed. For this purpose he employed
a contractor, by whose negligence it was filled up improperly, in consequence of which damage ensued to
B. It was held that A was responsible in an action by B. 23 Where the defendants, a railway company, were
authorized, by an Act of Parliament, to construct a railway bridge, across a navigable river, and they
employed a contractor to construct a bridge but before the works were completed the bridge, from some
defect in its construction, could not be opened, and the plaintiffs’ vessel was prevented from navigating the
river, it was held that the defendants were liable. 24 Defendant was the occupier of a house, from the front
of which a heavy lamp projected several feet over the public foot-pavement. As plaintiff was walking along,
in November, the lamp fell on her and injured her. In the previous August the defendant had employed an
experienced gas-fitter to put the lamp in repair. The fastening by which the lamp was attached to the post
was in a decayed state. It was held that the plaintiff was entitled to recover damages for the injury caused.
A person maintaining a lamp projecting over a highway for his own purposes was bound to maintain it so as
not to be dangerous to the public, and if it caused injury owing to want of repair, it was no answer on his
part that he employed a competent person to put it in a state of repair. 25 A contractor was employed to
make up a road, and in carrying out the work, he negligently left on the road a heap of soil unlighted and
unprotected. A person walking along the road after dark fell over the heap and was injured. It was held that
his employers were liable, because, from the nature of the work, danger was likely to arise to the public
using the road unless precautions were taken. 26
The plaintiff was driving a buggy along a street in Calcutta by night and fell into a hole opened in the road,
which was left unfenced and insufficiently lighted, and was badly injured. It appeared that the road had
been opened by an engineer in the employment of the Government, who had applied to, and obtained
permission from, the Corporation to open the road subject to the condition that he employed one of the
contractors licensed by the Municipality to do such work, and such a contractor had been employed. The
plaintiff sued for damages, making the Secretary of State, the Corporation and the contractor, defendants. It
was held that the Secretary of State was not liable, because he came within the established rule that one
who employs another to do what is perfectly legal must be presumed to employ that other to do this in a
Page 20 of 38
legal way; that the Corporation who had a statutory obligation imposed upon them to repair and maintain
the roads were liable to the plaintiff for a breach of their statutory duty; and that the contractor was also
liable. 27
(4) Where the work contracted to be done is from its nature likely to cause danger to others, in such cases
there is a duty on the part of the employer to take all reasonable precautions against such danger, and if
the contractor does not take these precautions, 28 e.g. interference with a neighbour's right of support, the
employer is liable. It is his duty to use every reasonable precaution that care and skill may suggest in the
execution of his works, so as to protect his neighbours from injury, and he cannot get rid of the
responsibility thus cast on him by transferring that duty to another. He is not in the actual position of being
responsible for injury, no matter how occasioned, but he must be vigilant and careful, for he is liable for
injuries to his neighbour caused by any want of prudence or precaution. 29 But the employer will not be
liable if the contractor was not acting within the scope of his contract, but was a trespasser when he did the
act complained of. 30
Defendant liable. —Where the defendant employed a contractor to pull down an old house and erect a new
one, and the contractor expressly undertook to support the plaintiff's house, and to be liable for all damage,
it was held that the defendant was liable for the damage. 31 The defendant employed a contractor to pull
down his house and rebuild it. The contractor in fixing a staircase negligently cut into the party-wall between
the defendant's house and the adjoining house of B, and this caused the defendant's house to fall and to
damage the plaintiff's house. It was held that the defendant was liable upon the ground that the work
ordered by him was necessarily attended with risk to the plaintiff's house, and that it was, therefore, the
defendant's duty to see that proper precautions were taken to prevent injury to that house, and that he
could not get rid of the responsibility by delegating the performance to a third person. 32
Where the plaintiffs had procured the defendants, as independent contractors, to take photographs of the
interior of a cinematograph theatre, and owing to the defendants’ negligence the premises were damaged
by fire, it was held that the plaintiffs were liable to the owners of the theatre for the damage, and were
entitled to recover what they paid from the defendants. 33
Sub-contractor.— Where the defendant employed two sub-contractors to carry out certain work on the roof
of a building and the plaintiff, who was employed by one of the sub-contractors, was injured due to the
negligence of the employees of the other sub-contractor, and it was found that there was no safety
arrangement made either between the defendant and his sub-contractors or between sub-contractors inter
se , it was held that the defendant as well as both the sub-contractors owed a duty of care to the plaintiff
and were liable to him for negligence, each having left to others the taking of necessary safety precautions.
34
(5) Where liability is imposed by statute for example under the provisions of the Workmen's Compensation Act,
1923, if the principal employs a contractor, such contractor's servants are able to recover compensation
from the principal without prejudice to the principal's right to be indemnified by the contractor, if the
contractor is himself liable under the Act. 35 Having regard tosections 94 and 95 of the Motor Vehicles Act,
1939 the owner of the motor vehicle and his insurer have been held liable to a third party for injuries
sustained by the negligent driving of the vehicle by an employee of the repairer although he is an
independent contractor. 36
2(C) Principal and Agent
There are no special rules dealing with the liability of the principal for the torts committed by the agent and the rules
discussed earlier in the context of master's liability for the torts of his servant apply here also. “Just as the tort must
be committed by a servant either under the actual control of his master or while acting in the course of his
employment, the act of the agent will only make the principal liable if it is done within the scope of his authority.” 37
The law on this point has been stated to be that “an agent will make the principal responsible so long as the agent
does the act within the scope of his authority or does so under the actual control of the principal.” 38 The word
“agent” is commonly used in dealing with cases of owner's liability when he lends his vehicle to a friend and also in
the context of cases relating to vicarious liability for fraud. 39 In the former class of cases the use of the word
Page 21 of 38
“servant” will be inappropriate, and therefore, the word “agent” is used as a matter of usage. In the latter class of
cases the master is liable when the fraud is committed by the servant within the scope of his actual or ostensible
authority and this test of liability is more in line with the liability of agent under the law of contract. These cases have
already been discussed. 40 It need hardly be stated that the principal will be liable for a wrongful act of his agent
which is authorised by him or is subsequently ratified by him. This is in addition to his liability for torts committed by
the agent within the scope of his agency even though they are not authorised or ratified by him. 41
2(D) Company and Director
Liability of Company.— The ordinary principles of agency apply to companies which are consequently liable for the
negligence of their servants, and for torts committed by them in the course of their employment. 42
Personal liability of Director.— Directors are personally responsible for any torts which they themselves may commit
or direct others to commit, although it may be for the benefit of their company. 43
2(E) Firm and Partner
Both under the English 44 and the Indian 45 law, a firm is liable for torts committed by a partner in the ordinary
course of the business of the firm. Thus, where a partner, acting on behalf of the firm, induced by bribery a clerk of
the plaintiff, a competitor in trade, dishonestly and improperly, and in breach of his duty to the plaintiff, to
communicate secret and confidential information in regard to the plaintiff's business, whereby the plaintiff suffered
loss, it was held that the firm was liable for the injury. 46 Whether the act of the partner is one done in the course of
the business of the firm is a question to be determined on the same considerations as those which determine the
responsibility of a master for the acts of his servants.
The relation of partners inter se is that of principal and agent, and therefore, each partner is liable for the act of his
fellows. Every partner is liable to make compensation to third person in respect of loss or damage arising from the
neglect or fraud of any partner in the management of the business of the firm. 47
2(F) Guardian and Ward
Guardians are not personally liable for torts committed by minors under their charge. 48 But guardians can sue for
personal injuries to minors under their charge on their behalf. 49
3. LIABILITY BY ABETMENT
In actions of wrong, those who abet the tortious acts are equally liable with those who commit the wrong. 50 A
person who procures the act of another is legally responsible for its consequences (1) if he knowingly and for his
own ends induces that other person to commit an actionable wrong, or (2) when the act induced is within the right of
the immediate actor and, therefore, not wrongful so far as the actor is concerned, but is detrimental to a third party
and the inducer procures his object by the use of illegal means directed against that third party. 51
1
PERTINDAL, C.J. in Wilson v. Tumman , (1843) 6 M & G 236 (242), Referred to in Keighley Maxsted & Co.
v. Durant, (1901) AC 240 (246, 254) : 84 LT 777 (HL).
2
PERLOCH, J., in Rani Shamasundari Debi v. Dukhu Mandal , (1869) 2 Beng LR (ACJ) 227 (229); Girish
Chandra Das v. Gillanders Arbutnot & Co ., (1869) 2 Beng LR (OCJ) 140. See, Venkatasa Naiker v. T.
Srinivasa Chariyar , (1869) 4 MHC 410; Eastern Construction Co. v. National Trust Co ., (1914) AC 197
(213) : 110 LT 321.
Page 22 of 38
Bird v. Brown , (1850) 4 Ex 786 (799). See Buron v. Denman , (1848) 2 Ex 167; Whitehead v. Taylor ,
(1839) 10 A & E 210.
4
Brook v. Hook , (1871) LR 6 Ex 89; Keighley Maxsted & Co. v. Durant, (1901) AC 240, p. 260 : 84 LT 777
(HL).
5
Wilson v. Tumman , (1843) 6 M & G 236; Lewis v. Read , (1845) 13 M & W 834.
6
Performing Right Society Ltd. v. Mitchell, (1924) 1 KB 762 : 131 LT 243 : 40 TLR 308; Eggintan v. Reader,
(1936) 52 TLR 212; Collins v. Herts County Council, (1947) 2 KB 343 (352).
7
(1946) 62 TLR 427 (HL), p. 420. See further, State of U.P. v. Audh Narain Singh , AIR 1965 SC 360 :
(1964) 7 SCR 89 [LNIND 1964 SC 69]. State of Assam v. Kanak Chandra Dutta , AIR 1967 SC 884 (886) :
(1967) 1 SCR 679 [LNIND 1966 SC 226]. (A relationship of master and servant may be established by the
presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact
in each case whether there is such a relation).
8
Kahn Freund , (1951) 14 Modern Law Review, p. 505.

9
Silver Jubilee Tailoring House v. Chief Inspector of Shops and Establishments, (1974) 3 SCC 498 [LNIND
1973 SC 289] (507), M/s P.M. Patel and Sons v. Union of India, (1986) 1 SCC 32 [LNIND 1985 SC 298], p.
39 : AIR 1987 SC 447.
10
AIR 1957 SC 264. See further, Birdhichand Sharma v. First Civil Judge, Nagpur , AIR 1961 SC 644; D.C.
Dewan Mohideen Sahib and Sons v. The Industrial Tribunal, Madras , AIR 1966 SC 370; Shanker Balaji
Waje v. State of Maharashtra , AIR 1962 SC 517; V.P. Gopala Rao v. Public Prosecutor, A.P., (1969) 1
SCC 704 [LNIND 1969 SC 100] ; Employers in Relation to the Management of Reserve Bank of India v.
Their Workmen , (1996) 2 Scale 708 [LNIND 1996 SC 2794], p. 712; Employees State Insurance
Corporation v. Apex Engineering Pvt. Ltd., (1997) 9 JT 54, pp. 62, 63 : (1998) 1 SCC 86 (A director
appointed managing director on remuneration may be an employee); Indian Overseas Bank v. IOB Staff
Workers Union, AIR 2000 SC 1508, p. 1517 : (2000) 4 SCC 245 [LNIND 2000 SC 646] (no test of universal
application); Workmen of Nilgiri Co-op. Mkt. Society v. State of Tamil Nadu , AIR 2004 SC 1639, pp. 1645,
1646 : (2004) 3 SCC 514 [LNIND 2004 SC 156], pp. 529, 530.
11
Cassidy v. Minister of Health , (1951) 1 All ER 574 (579) : (1951) 1 TLR 539 : (1951) 2 KB 343
(SOMMERVELL, L.J.); Market Investigations Ltd. v. Minister of Social Security , (1968) 3 All ER 732.
12
(1947) 1 DLR 161.
13
Ibid. , p. 169.
Page 23 of 38
14
(1952) 1 TLR 101.
15
(1952) 1 TLR 101 (111).
16
United State v. Silk , 331 US 704.

17

18
Ibid. , pp. 507, 508. Quoted in M/s. P.M. Patel & Sons. v. Union of India, (1986) 1 SCC 32 [LNIND 1985 SC
298] (39).
19
Ibid., p. 508.
20
Ibid. , p. 509. Reference in this context is made to observations of DIXON, J., in Humberstone v. Northern
Timber Mills , (1949) 79 CLR 389; “The question is not whether in practice the work was in fact done
subject to a direction or control exercised by an actual supervision or whether an actual supervision was
possible but whether ultimate authority over the man in the performance of his work resided in the employer
so that he was subject to the latter's order and directions.”
21
(1990) 2 AC 374 (PC) 382.

22
Market Investigations Ltd. v. Minister of Social Security , (1968) 3 All ER 732, at pp. 737, 738.
23
Hollis v. Vabu Pvt. Ltd. , (2001) 75 ALJR 1356, p. 1365.

24
Hillyer v. St. Bartholomew's Hospital, (1909) 2 KB 820 : 101 LT 368 : 25 TLR 762; Distinction is drawn
between professional duties and ministerial and administrative duties.
25
Gold v. Essex County Council, (1942) 2 KB 293 : (1942) 2 All ER 237 (case of radiographer); Collins v.
Hertfordshire County Council, (1947) KB 598; Cassidy v. Ministry of Health, (1951) 2 KB 343 (House-
Surgeons and whole-time Assistant Medical Officers), Roe v. Minister of Health, (1954) 2 QB 66 : (1954) 2
All ER 131 (staff anaesthetists). A hospital authority, it is said, itself owes a duty to the patients which
cannot be delegated and the authority is liable both primarily and vicariously for the negligence of its staff.
On this principle the hospital authority may be held liable for breach of its primary duty when the negligence
is of a person who cannot be called a servant of the authority e.g., Visiting Consultants and Surgeons, See
: Gold v. Essex County Council, (1942) 2 KB 293 (301, 309) : (1942) 2 All ER 237; Cassidy v. Ministry of
Health, (1951) 2 KB 343 (362-365) : (1951) 2 All ER 575; Roe v. Minister of Health, (1954) 2 QB 66 (82).
See , Chapter XIX title 4(D), p. 552; Joseph Alias Pappachan v. D. George Moonjdy , AIR 1994 Kerala 289
[LNIND 1994 KER 127], p. 295 (Surgeon).
Page 24 of 38
26
Amalgamated Coalfields Ltd. v. Mst. Chhotibhai, (1973) ACJ 365 (369)(MP); 1973 MPLJ 389. Also, cases
in f.n. 25, supra .
27
Smt. Kalawati v. State of H.P ., AIR 1989 HP 5 [LNIND 1989 AP 42]; Dr. Pinnamanini Narsimha Rao v.
Gundavarapu Jayaprakasu , AIR 1990 AP 207 [LNIND 1989 AP 42], pp. 217, 218; R.P. Sharma v. State of
Rajasthan, AIR 2002 Raj 104; Achutrao Haribhau Khodwa v. State of Maharasthra, AIR 1996 SC 2377 :
(1996) 2 SCC 634 [LNIND 1996 SC 441] ; State of Haryana v. Smt. Santra, AIR 2000 SC 1888 : (2000) 5
SCC 182 [LNIND 2000 SC 700].
28
(2004) 8 SCC 56 [LNIND 2004 SC 1064], p. 66 : AIR 2004 SC 5088.

29
Cassidy v. Ministry of Health, (1951) 2 KB 341.

30
Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool) Ltd ., (1946) 2 All ER 345 (HL); (1947) AC
1 (HL); Bhoomidas v. Port of Singapore Authority , (1978) 1 All ER 956 (PC).
31
(1946) 2 All ER 345 (HL) : (1947) AC 1 (HL).

32
Ibid .
33
Savory v. Holland and Hannen & Cubitts (Southern) Ltd., (1964) 1 WLR 1158 (1163): (1964) 3 All ER 18.
34
(1978) 1 All ER 956 (PC).
35
(1893) 1 QB 629.
36
(1978) 1 All ER 956 (958, 959) (PC).
37
Nicholas v. F.J. Sparkes & Son, (1945) 1 KB 309; Niranjanlal v. Ramswarup , (1950) ALJ 761; Kundan
Kaur v. Shankar , AIR 1966 Punj 394 .
38
Government of India v. Jeevaraj Alva , AIR 1970 Mys 13 ; see further, Mersey Dock's case, (1947) AC 1
(12) : 175 LT 270 : 62 TLR 533 (HL) (LORDSIMON).
39
AIR 1997 SC 3444.
40
Page 25 of 38
Ibid., p. 3449. See further National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 [LNIND 2007 SC
1449] : AIR 2008 SC 735 (vehicle requisitioned by government, the government will be vicariously liable
and not the owner); Godavari Finance Co. v. Degala Satyanarayanamma , IV (2008) CPJ 30 : AIR 2008 SC
2493 (In case of hire purchase agreement the hirer is liable and not the financier).
41
(1960) 103 CLR 215.
42
(2000) 74 ALJR 1410.
43
Esso Petroleum Co. Ltd. v. Hall Russel & Co. Ltd ., (1989) 1 All ER 37, p. 60 : 1989 AC 643 : 1988 (3) WLR
730 (HL).
44
Ibid. , p. 64.
45
Samson v. Aitchison, (1912) AC 844; Pratt v. Patrick, (1924) 1 KB 488.

46
Ormrod v. Crossville Motor Services Ltd ., (1953) 2 All ER 753 (CA).

47
(1970) 1 All ER 749 (PC) : (1970) 1 WLR 556.

48
(1972) 2 All ER 606 : 1973 AC 127 (HL).

49
Municipal Committee, Sonepat v. Khushi Ram , (1983) 85 Punj LR 313; Government Vehicle used by
Municipal Committee for its purpose and driven by its driver.
50
Chowdhary v. Gillot , (1947) 2 All ER 541; owner present in the car which had been delivered to a garage
for repair and the garage was in possession as bailee at the time of the accident.
51
Guru Govekar v. Filomena F. Lobo , AIR 1988 SC 1332 : (1988) 3 SCC 1 [LNIND 1988 SC 295].
52
HOLMES Common Law, pp. 179 (180).
53
Ibid ., p. 9.
54
The master these days is very often a firm or a corporation with cover of insurance. In Imperial Chemical
Industries Ltd. v. Shatwell, (1965) AC 656 (685) : (1964) 2 All ER 999 (HL), LORD PEARCE observed :
“The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social
convenience and rough justice. The master having (presumably for his own benefit) employed the servant,
Page 26 of 38
and being (presumably) better able to make good any damage which may occasionally result from the
arrangement is answerable to the world at large for all the torts committed by the servant within the scope
of it.” See further Rose v. Plenty , (1976) 1 All ER 97 (CA); 1976 ACJ 387 (392) : 1975 LCR 430.
55
Bartonshill Coal Co. v. Mcguire , (1858) 3 Macq, 300 (306).

56
(1956) 1 All ER 403 : (1956) 2 WLR 479 (HL).

57
(1956) 1 All ER 403 : (1956) 2 WLR 479 (HL).

58
(1965) AC 656 : (1964) 2 All ER 999.

59
CLERK & LINDSELL, Torts, (15th edition), pp. 183, 184.
60
(1965) AC 656 : (1964) 2 All ER 999.

61
Sitaram Motilal Kalal v. Santanu Prasad Jaishankar Bhatt , AIR 1966 SC 1697; 1966 ACJ 89 (93). See
further , State of Maharashtra v. Kanchanmala Vijaysing Shirke , AIR 1995 SC 2499 : (1995) 5 Scale 2, p.
5 : (1995) 5 SCC 659 [LNIND 1995 SC 815].
62
Salmond on Torts (1st edn. 1907), pp. 83, 84 referred in Lister v. Hesley Hall Ltd., (2001) 2 All ER 769, p.
775 (HL).
63
Lister v. Hesley Hall Ltd., supra. See further, p. 171, post.

64
WEIR, Case Book on Tort, (5th edition), p. 222.
65
Canadian Pacific Ry. Co. v. Leonard Lock-hart , AIR 1943 PC 63; State of Maharashtra v. Kanchanmala
Vijaysing Shirke , AIR 1995 SC 2499 : (1995) 5 Scale 2, p. 5 : (1995) 5 SCC 659 [LNIND 1995 SC 815].
66
Lister v. Hesley Hall Ltd., supra, pp. 776, 777. See further title 2A(ii)(b)(vi), pp. 169 to 172.
67
Lister v. Hesley Hall Ltd., supra p. 777 (LORD STEYN).

68
Ilkiw v. Samuels , (1963) 2 All ER 879 (889) : (1963) 1 WLR 991; Rose v. Plenty, 1976 ACJ 387 (392);
(1976) 1 WLR 141; (1976) 1 All ER 97 (CA).
69
Page 27 of 38
(2002) 3 WLR 1913, pp. 1920, 1921 (HL).

70
Ibid , p. 1941.
71
Young v. Edward Box & Co. Ltd ., (1951) 1 TLR 789 (793); Pushpabai Purshottam Udeshi v. M/s. Ranjit
Ginning & Pressing Co ., AIR 1977 SC 1735 (1744) : (1977) 2 SCC 745 [LNIND 1977 SC 155].
72

73

74

75
(1953) 2 All ER 753 : (1953) 1 WLR 1120.

76
AIR 1977 SC 1735 (1744): (1977) 2 SCC 745 [LNIND 1977 SC 155].
77
Morgans v. Launchbury , (1972) 2 All ER 606 : (1973) AC 127 : (1972) 2 WLR 1217 (HL). See further , text
and notes 45 to 51, pp. 153, 154.
78
Subbiah Reddy v. T. Jordan , AIR 1945 PC 168.

79
Olga Hall v. Kingston and Andrew Corporation , AIR 1941 PC 103.

80
Amita Bhandari v. Union of India , AIR 2004 Guj 67 : 2004 ACJ 2020.
81
See , text and notes 89 and 90 below.

82
Joel v. Morison , (1834) 6 C & P. 501, p. 503 (PARKE, B).

83
Morris v. C.W. Martins & Sons Ltd ., (1965) 2 All ER 725 : (1966) 1 QB 716 (1965) 3 WLR 276 (CA) (LORD
DENNING); Sitaram Motilal Kalal v. Santanu Prasad Jaishankar Bhatt, 1966 ACJ 89 (94)(SC).
84
See , text and notes 62, 63, 66 and 67, pp. 155 and 156.
Page 28 of 38
85
Credit Lyonnais Bank Nederland N.V. v. Export Credit Gurantee Department, (1999) 1 All ER 929, p. 935 :
(2000) 1 AC 486 : (1999) 2 WLR 540 (HL).
86
Ibid.
87
Ibid.
88
Ibid., p. 939.
89
(1988) 3 All ER 867 : (1989) 1 WLR 69 : (1989) 1 RLR 35 (PC).

90
Ibid. , p. 869.
91
(1900) 2 QB 530. For a similar Indian case, see, Nalini Ranjan Sen Gupta v. Corporation of Calcutta ,
(1925) ILR 52 Cal 983.
92
(1915) 1 KB 644. For similar Indian cases, see, Beharilal v. Surinder Singh , AIR 1965 Punj 376 ; U.P.
Govt. v. Ram Milan , AIR 1967 All 287 [LNIND 1965 ALL 125]; The Ad hoc Committee, The Indian
Association Pool, Bombay v. Radhabai Babulal, 1976 ACJ 362 (MP); Subhash Chandra Meena v. Madan
Mohan Sood , AIR 1988 Raj 186; K.G. Bhaskaran v. K.A. Thankamma, 1973 ACJ 539 (Kerala); Prabhavati
v. Anton Francis Nazarath , AIR 1981 Kant 74 [LNIND 1980 KANT 283]; Inderjeet Singh v. Kamal Prakash
Pawar , A 1989 Bom 325; Smt. Sitabai Mangesh Koli v. Jonvel Abraham Soloman , AIR 1991 Bom 287
[LNIND 1990 BOM 638]. See further , text and notes 1 and 2 below.
93
(1966) ACJ 89 (SC) : AIR 1966 SC 1697.

94
(1966) ACJ 89 (SC), p. 94 : AIR 1966 SC 1697. For example, see, Storey v. Ashton , (1869) LR 4 QB 476,
where the cartman after business hours instead of taking the cart to the stables drove it in a different
direction on the business of the clerk of the master.
95
Ibid. , p. 94, approving Britt v. Golmaye and Neviel , (1927-28) 44 TLR 294 : 72 SJ 122.
1
(1995) 5 Scale 2 : AIR 1995 SC 2499 : (1995) 5 SCC 659 [LNIND 1995 SC 815].
2
Ibid., pp. 9, 10 Scale : p. 2504 (AIR). N.B. This case is similar to the cases in note 92, supra .
3
Page 29 of 38
Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (1987) 2 SCC 654 [LNIND 1987 SC 359] : AIR
1987 SC 1184. See further, a similar case Sohanlal Passi v. P. Sesh Reddy , 1996(5) Scale 388 [LNIND
1996 SC 1070] : (1996) 5 SCC 21 [LNIND 1996 SC 1070] (cleaner and conductor, who was not licensed,
driving the vehicle on owners business with the permission of the driver. Owner and Insurance Company
were both held liable).
4
Orissa State Commercial Transport Corporation v. Dhumali Bewa , AIR 1982 Orissa 70 ; Venkatachalam v.
Sundarambal Ammal , AIR 1983 Mad 197 [LNIND 1983 MAD 87]; Smt. Lalwanti v. Haryana State , AIR
1985 Punj & Har 71; Sampat Reddi v. Gudda Meddi , AIR 1989 AP 337 [LNIND 1989 AP 39].
5
Sitaram Motilal Kalal v. Santanu Prasad Jaishankar Bhatt, (1966) ACJ 89 (SC), p. 93 : AIR 1966 SC 1697.
6
State of Maharashtra v. Kanchanmala Vijay Singh , AIR 1995 SC 2499, P. 2504 : (1995) 5 Scale 2, pp. 8, 9
: (1995) 5 SCC 659 [LNIND 1995 SC 815].
7
Keppel Bus Co. Ltd. v. Sa'ad bin Ahmad , (1974) 2 All ER 700 (702) : (1974) 1 WLR 1082 : 1974 RTR 504
(PC).
8

9
AIR 1977 SC 1735 (1741, 1743), the expression used is “ostensible authority”, but the finding, at p. 1743
makes it a case of implied authority.
10
Smith v. Stages , (1989) 1 All ER 833 (HL) : (1989) AC 828 : (1988) 2 WLR 529. See further, Rajanna v.
Union of India , AIR 1995 SC 1966 : (1995) 2 Scale 853 : 1995 Supp (2) SCC 601.
11
Ibid. , p. 851.
12
Ibid.
13
Ibid.
14
Ibid. Note 10, supra.

15
Regional Director E.S.I. Corporation v. Francis De Costa , (1996) 6 Scale 473 : AIR 1997 SC 432 : (1996) 6
SCC 1.
16
Keppel Bus Co. Ltd. v. Sa'ad bin Ahmad , (1974) 2 All ER 700, p. 702 : (1974) 1 WLR 1082 (PC).
Page 30 of 38
17
(1927) 1 KB 236 : 136 LT 271.

18
Ibid. , p. 244. Referred in Keppel Bus Co. Ltd. v. Sa'ad bin Ahmad , supra p. 702.
19
Ibid p. 245 (ATKIN L.J.).

20
1911 SC (HL) 35.
21
Ibid. , pp. 36, 37. Referred in Keppel Bus Co. Ltd. v. Sa'ad bin Ahmad , supra p. 702.
22
Bank of New South Wales v. Owston, (1879) 4 AC 270, p. 290. Referred in Keppel Bus Co. Ltd. v. Sa'ad
bin Ahmad , supra , p. 703.
23
(1974) 2 All ER 700 : (1974) 1 WLR 1082 : 1974 RTR 504 (PC).
24
(1974) 2 All ER 700 (703) : (1974) 1 WLR 1082 : 1974 RTR 504 (PC).
25
(1942) 1 All ER 491 (HL).
26
Ibid .
27
(1961) 1 All ER 74 : (1961) 1 WLR 705. Compare Storey v. Ashton , (1869) LR 4 QB 476; Roberts v.
Shanks , (1924) ILR 27 Bom LR 548; Stanes Motors Ltd. v. Peter , (1935) ILR 59 Mad 402.
28
(1914) AC 62 (HL).
29
Ibid , p. 67; Ilkiw v. Samuels , (1963) 2 All ER 879 (889) : (1963) 1 WLR 991; Rose v. Plenty, 1976 ACJ
387, p. 394.
30
AIR 1943 PC 63; (1942) 2 All ER 464 (PC).
31
(1942) 2 All ER 464 (601).
32
(1862) 1 H & C 526 : 130 RR 641.
33
Page 31 of 38
(1963) 2 All ER 879 followed in the Ad Hoc Committee, The Indian Insurance Companies Association Pool
v. Radhabai Babulal, 1976 ACJ 362 (MP), pp. 365, 366.
34
(1976) 1 All ER 97 (CA); 1976 ACJ 387 : (1976) 1 WLR 119.

35
LORD DENNING M.R. and SCARMAN L.J.
36
1976 ACJ 387 : (1976) 1 WLR 119.

37
(1946) 62 TLR 458 : (1946) 1 All ER 202.
38
(1951) 1 All ER 363 : (1951) 2 KB 266.

39
(1946) 62 TLR 458 : (1946) 1 All ER 202.
40
(1946) 62 TLR 458 : (1946) 1 All ER 202.
41
(1951) 1 All ER 363 : (1951) 2 KB 266.

42
Ibid.
43
1976 ACJ 387 : (1976) 1 All ER 97 : (1976) 1 WLR 119.

44
(1946) 62 TLR 458 : (1946) 1 All ER 202.
45
(1951) 1 All ER 363 : (1951) 2 KB 266.

46
1976 ACJ 387 (389) : (1976) 1 All ER 97 : (1976) 1 WLR 119.

47
(1951) 1 All ER 363 : (1951) 2 KB 266.

48
1976 ACJ 387 (394) : (1976) 1 All ER 97 : (1976) 1 WLR 119.

49
Narayanlal Lunaji Padiyar v. Rukhminibai , 1979 MPLJ 405 (FB). See also State of Orissa v. Rebati Tiwari ,
AIR 1988 Orissa 242 ; Bhagwandas v. National Insurance Co. Ltd ., AIR 1991 MP 238 .
50
Page 32 of 38
Ibid , p. 408 (para 6).

51
(1951) 1 TLR 789.
52
1976 ACJ 387 : (1976) 1 All ER 97 : (1976) 1 WLR 119.

53
Ibid.
54
Jiwan Dass Roshanlal v. Karnail Singh, 1980 ACJ 445.

55
K.R. Sivagami, Proprietor Rajendra Tourist v. Mahaboob Nisa Bi , AIR 1981 Mad 138 [LNIND 1980 MAD
233].
56
Cases mentioned in notes 49, 54 and 55, supra .

57
Stone v. Taffe , (1974) 3 All ER 1016 (1020, 1021) : (1974) 1 WLR 1575 (CA).
58
Morris v. C.W. Martin & Sons Ltd ., (1965) 2 All ER 725 (CA) (LORD DENNING M.R.). See further State
Bank of India v. Shyama Devi , AIR 1978 SC 1263, 1979 ACJ 22 : (1978) 3 SCC 399 [LNIND 1978 SC
155].
59
Ibid ; De Parrell v. Walker, (1932) 49 TLR 37.

60
Warren v. Henlys Ltd ., (1948) 2 All ER 935 : (1948) W.N. 449.

61
Barwick v. English Joint Stock Bank, (1867) 2 Exch 259 (265) (WILLIS, J.).
62
(1912) AC 716 (HL). Followed by the Privy Council in a case of theft: United Africa Co. Ltd. v. Saka Owade,
(1955) AC 130 (PC). Also followed by the Delhi High Court in a case of fraud by P.A. of a managing director
: Smt. Niranjan Kaur v. M/s. New Delhi Hotels Ltd ., AIR 1988 Delhi 332 [LNIND 1987 DEL 363], p. 341.
63
(1939) 2 KB 248.
64
Morris v. C.W. Martin & Sons Ltd ., (1965) 2 All ER 725 : (1966) 1 QB 716 (CA). See further United Bank of
Kuwait v. Hammond , (1988) 3 All ER 418 : (1988) 1 WLR 1051 (CA) where a solicitor gave false
undertaking as security for loan on behalf of a firm of solicitors; as ostensible authority was established the
firm was held liable.
Page 33 of 38
65
See for example Koorangong Investments P. Ltd. v. Richardson & Wrench Ltd ., (1981) 3 All ER 65 : (1982)
AC 462 (PC).
66
Armagas Ltd. v. Mundogas S.A. , (1985) 3 All ER 795 (CA). Affirmed (1986) 2 All ER 385 (HL).
67
Ibid . (1986) 2 All ER 385 (HL) p. 394.

68
AIR 1978 SC 1263 : 1979 ACJ 22.
69
Morris v. C.W. Martin & Sons Ltd ., (1965) 2 All ER 725 : (1966) 1 QB 716 (CA) (LORD DENNING, M.R.).
70
Ibid , (SALMON, L.J.).

71
1955 AC 130 (PC).

72
Ibid , p. 144; Referred in State Bank of India v. Shyama Devi, 1979 ACJ 22 (28) (SC).
73
(1965) 2 All ER 725 : (1966) 1 QB 716.

74
(1966) 3 All ER 593 : (1966) 3 WLR 642. Referred with approval in State Bank of India v. Shyama Devi ,
AIR 1978 SC 1263; 1979 ACJ 22 (27) : (1978) 3 SCC 399 [LNIND 1978 SC 155] (SC).
75
See p. 155.
76
(1999) 174 DLR (4th) 45.
77
(1999) 174 DLR (4th) 71.
78
(2001) 2 All ER 769 (HL).
79
(2003) 3 WLR 1913 (HL). See further , pp. 155, 156.

80
Mattis v. Pollock, (2003) 1 WLR 2158. See for comments 63 (2004) Cambridge Law Journal, Part I, p. 53.
81
(1837) 3 M. & W. 1.
Page 34 of 38
82
Radcliffe v. Ribble Motor Services Ltd ., (1939) AC 215.

83
AIR 1937 Nag 354 (367, 368).
84
AIR 1940 PC 225.
85
AIR 1950 PC 22.
86
Chapter XIX, title 9, p. 604.
87
The master of a ship was generally not liable for this reason under the common law for the negligence of a
pilot in a compulsory pilotage district; The Halley , (1808) LR 2 PC 193 (201); Muhammad Yusuf v. P. &
O.S.N. Co. , (1869) 6 BHC (OCJ) 98 (106). S. 15 of the Pilotage Act, 1913 makes the shipowner and
master liable for the negligent acts of compulsory pilots in the same way as they are liable for negligence of
voluntary pilots under the common law. S. 15 has been held to create the relationship of master and
servant between the shipowner and the compulsory pilot : Workington Harbour and Dock Board v.
Towerfield (Owners), (1951) AC 112 : (1950) 2 All ER 414 (HL); Esso Petroleum Co. Ltd. v. Hall Russel &
Co. Ltd ., (1989) All ER 37 (HL), pp. 58-60 : (1989) AC 643.
88
Martin v. Temperley, (1843) 4 QB 298.

89
For vicarious liability of the State see Chapter III, title 8, ‘the State and its officers’ , p. 44.
90
(1957) AC 555 (1957) 2 WLR (HL).

91
Morris v. Ford Motor Co. Ltd ., (1973) 2 All ER 1084 (1088) : (1973) 1 QB 792 : (1973) 2 WLR 843 (CA).
92
Ibid.
93
Ibid.
94
CLERK & LINDSELL TORT (15th edition), p. 154.
95
Lucknow Development Authority v. M.K. Gupta , AIR 1994 SC 787, pp. 799, 800 : (1994) 1 SCC 243
[LNIND 1993 SC 946] : (1994) 13 CLA 20. Followed in Gaziabad Development Authority v. Balbir Singh ,
AIR 2004 SC 2141 : (2004) 5 SCC 65.
1
Performing Right Society Ltd. v. Mitchell & Booker Ltd ., (1924) 1 KB 762 : 131 LT 243 : 40 TLR 308.
Page 35 of 38
Titles 2(A)(i)(a) and (b), pp. 146 to 149, supra .

3
Pickard v. Smith, (1861) 10 CBNS 470, 480 : 4 LT 70; Morgan v. Girls’ Friendly Society , (1936) 1 All ER
404; Guru Govekar v. Filomena F. Lobo , AIR 1988 SC 1332, p. 1334 (para 26) : (1988) 3 SCC 1 [LNIND
1988 SC 295] : (1988) 2 ACJ 585.
4
Reedie v. L. & N.W. Ry ., (1849) 4 Ex. 244 ; Hardaker v. Idle District Council, (1896) 1 QB 335.
5
Dalton v. Angus , (1881) 6 App Cas 740 (829) : 44 LT 884; Padbury v. Holliday & Greenwood, (1912) 28
TLR 494.
6
Salsbury v. Woodland , (1969) 3 All ER 863 : (1970) 1 QB 324.

7
Haseldine v. Daw , (1941) 2 KN 343.

8
Cassidy v. Ministry of Health, (1951) 2 KB 343, p. 363 : (1951) 1 All ER 575.

9
Kondis v. State Transport Authority, (1984) 154 CLR 672, p. 687; Northern Sandblasting Pvt. Ltd. v. Harris,
(1997) 71 ALJR 1428, p. 1435 (BRENNAN C.J.)
10
Northern Sandblasting Pvt. Ltd. v. Harris, supra.

11
Ibid.
12
Burgess v. Gray, (1845) 1 CB 578.

13
Ellis v. Sheffield Gas Consumers Co ., (1853) 2 E & B 767.

14
Ibid.
15
Patel Maganbhai Bapujibhai v. Patel Ishwarbhai Motibhai , AIR 1984 Guj 69 [LNIND 1983 GUJ 148].
16
Hole v. Sittingbourne and Sheerness Ry ., (1861) 6 H & N 488; Gray v. Pullen , (1864) 10 CB NS 470 ;
Tarry v. Ashton, (1876) 1 QBD 314; Dalton v. Angus , (1881) 6 App Cas 740, 831; Hardaker v. Idle District
Council, (1896) 1 QB 335; The Snark , (1900) p. 105; Matania v. National Provincial Bank , (1936) 2 All ER
Page 36 of 38
633 : (1937) 106 LJKB 113 : 80 SJ 532. Murphy v. Brentwood District Council , (1990) 2 All ER 269, pp.
279, 280 : (1990) 2 WLR 944.
17
Bower v. Peate, (1876) 1 QBD 321, 326; Gray v. Pullen , (1864) 5 QB & S 970.
18
Honeywill and Stein Ltd. v. Larkin Brothers Ltd ., (1934) 1 KB 191, 199 : 150 LT 771 : 50 TLR 56.
19
Penny v. Wimbledon Urban Council, (1899) 2 QB 72, 76 : 15 TLR 483.

20
PER SMITH, L.J., in Holliday v. National Telephone Co ., (1899) 2 QB 392, 400 : 15 TLR 483; Pickard v.
Smith, (1861) 10 CBNS 470 : 142 ER 535.
21
Dalton v. Angus , (1881) 6 App. Cas 740 : 44 LT 884.

22
Hardaker v. Idle District Council, (1896) 1 QB 335; Holliday v. National Telephone Co ., (1899) 2 QB 392 :
15 TLR 483. See The Snark , (1900) p. 105, and The Utopia, (1893) AC 492.
23
Gray v. Pullen , (1864) 5 B & S 970.

24
Hole v. Sittingborne and Sheerness Rly ., (1861) 6 H & N 488.

25
Tarry v. Ashton, (1876) 1 QBD 314.

26
Penny v. Wimbledon Urban Council, (1899) 2 QB 72.

27
Corporation of the Town of Calcutta v. Anderson , (1884) ILR 10 Cal 445; Keough v. Municipal Committee
of Lahore , (1883) PR No. 108 of 1883. See Municipal Committee of Lahore v. Nand Lal , (1913) PR No. 88
of 1913, where a Municipality was held liable for the bursting of a main. See Municipal Council of
Vizagapatnam v. Foster , (1917) ILR 41 Mad 538.
28
Hughes v. Percival , (1883) 8 App Cas 443 : 49 LT 189; Bower v. Peate, (1876) 1 QBD 321; Dalton v.
Angus , (1881) 6 App Cas 740 : 142 ER 535; Penny v. Wimbledon Urban Council, (1899) 2 QB 72, 78;
Patel Maganbhai Bapuji Bhai v. Patel Ishwarbhai Motibhai , AIR 1984 Guj 69 [LNIND 1983 GUJ 148].
29
Hughes v. Percival, (1983) 8 App Cos 443 : 52 LJQB 719, supra p. 455.
30
Black v. Christchurch Finance Co ., (1894) AC 48.

Page 37 of 38
31
Bower v. Peate, (1876) 1 QBD 321; Lemaitre v. Davis , (1881) 19 Ch D 281.

32
Hughes v. Percival , (1883) 8 App Cas 443, at p. 455 : 49 LT 189 overruling Butler v. Hunter , (1862) 7 H
& N 826. See to the same effect, Dhondiba Krishnaji v. Mun. Commr. of Bombay , (1892) ILR 17 Bom 307.
See also Ullman v. The Justices of the Peace for the Town of Calcutta , (1871) 8 Beng LR 265, where the
contractor was held not negligent.
33
Honeywill and Stein Ltd. v. Larkin Brothers, Ltd ., (1934) 1 KB 191 : 50 TLR 56.
34
Mc Ardle v. Andmac Roofing Co ., (1967) 1 All ER 583 : (1967) 1 WLR 356.

35
Workmen's Compensation Act, 1923, VIII of 1923, ss. 12(2) and 13.
36
Guru Govekar v. Filomena F. Lobo , AIR 1988 SC 1332 : (1988) 3 SCC 1 [LNIND 1988 SC 295].
37
Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt , AIR 1966 SC 1697 : (1966) 3 SCR 527 [LNIND
1966 SC 45].
38
Ibid.
39
See title 2(A)(i)(e). Lending of Chattel, p. 153.

40
See title 2(A)(ii)(b)(vi); ‘Dishonest and Criminal Act s’, p. 169.

41
See titles 2(A)(ii)(b), (ii), (iii), (iv), pp. 157 to 163.

42
LINDLEY on Companies, 6th edn., Vol. I, p. 257.
43
Vide LINDLEY, Vol. 1, p. 348.

44
Partnership Act (English), 1890, (53 & 54 Vic. c. 39) ss. 10 & 12.
45
The Indian Partnership Act (IX of 1932), s. 26.
46
Hamlyn v. Houston & Co ., (1903) 1 KB 81.

Page 38 of 38
47
The Partnership Act, 53 & 54 Vic. c. 39, ss. 10, 11 and 12; The Indian Partnership Act (IX of 1932), s. 26.
48
Luchmun Das v. Narayan , (1871) 3 NWP 191.

49
Madhoo Soodan v. Kaemollah , (1868) 9 WR 327.

50
Kashee Nath v. Deb Kristo , (1871) 16 WR 240; Golab Chand v. Jeebun , (1875) 24 WR 437; Wharton v.
Moona Lall , (1866) 1 Agra HC 96.
51
Allen v. Flood, (1898) AC 1 96 : 77 LT 717 : 14 TLR 125; Nam Kee v. Ah Fong , (1934) ILR 13 Ran 175.
End of Document
CHAPTER IX REMEDIES
CHAPTER IX REMEDIES
THERE are two kinds of remedies for torts, namely, judicial and extra-judicial. Judicial remedies are remedies which
are afforded by the Courts of law; while extra-judicial remedies are those which are available to a party, in certain
cases of torts, by his own acts alone. Extra-judicial remedies are (i) expulsion of trespasser, (ii) re-entry on land, (iii)
recaption of goods, (iv) distress damage feasant and (v) abatement of nuisance. These remedies are discussed at
appropriate places in subsequent Chapters. But these remedies, which are in the nature of self-help, should not be
normally resorted to, for the person resorting to them may frequently exceed his rights and may be faced with a
case civil or criminal alleging that he took the law in his own hands. It may also create problems of law and order.
Judicial remedies are : (1) awarding of damages; (2) granting of injunction; and (3) specific restitution of property.
Damages and injunctions are merely two different forms of remedies against the same wrong; and the facts which
must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the
second. The third remedy is the specific restitution of property.
1. DAMAGES
1(A) Introduction
In a suit for damages in a tort case, the Court awards pecuniary compensation to the plaintiff for the injury or
damage caused to him by the wrongful act of the defendant. After it is proved that the defendant committed a
wrongful act, the plaintiff would be entitled to compensation, may be nominal, though he does not prove any specific
damage or injury resulting to him, in cases where the tort is actionable per se . But even in these cases when
specific damage is alleged and in all other cases, where tort is not actionable per se , and it becomes the duty of
the plaintiff to allege the damage resulting from the wrongful act for which he claims damages, the Court's enquiry
resolves in deciding three questions : (1) Was the damage alleged caused by the defendant's wrongful act? (2)
Was it remote? and (3) What is the monetary compensation for the damage?
1(B) Causation
If the damage alleged was not caused by the defendant's wrongful act the question of its remoteness will not arise.
In deciding the question whether the damage was caused by the wrongful act, the generally accepted test is known
as ‘but for’ test. This means that if the damage would not have resulted but for the defendant's wrongful act, it would
be taken to have been caused by the wrongful act. Conversely it means that the defendant's wrongful act is not a
cause of the damage if the same would have happened just the same, wrongful act or no wrongful act. Thus when
a doctor is negligent in failing to see and examine a patient and give him the proper treatment, the claim will still fail
if it is shown on evidence that the patient would have died of poisoning even if he had been treated with all due
care. The doctor's negligence in such cases is not the cause of the patient's death. 1 In Robinson v. Post Office 2
the plaintiff, who was employed by the Post Office , slipped as he was descending a ladder. The ladder had
become slippery due to negligence of the employer. The plaintiff sustained a wound on his left shin. Some eight
hours later, he visited his doctor and was administered antitetanusserum (A.T.S.). The recognised test procedure
then was to wait for half an hour after injecting a small quantity to see whether the patient showed any reaction
Page 2 of 70
CHAPTER IX REMEDIES
before administering a full dose. The doctor did not follow this procedure but waited only a minute after the test
dose before administering the balance of the full dose. The plaintiff did not suffer any reaction for about three days
but thereafter he suffered from encephalitis which is a possible though rare consequence of A.T.S. injection. In a
suit for damages against the doctor, it was found that the doctor was not negligent in deciding to inject A.T.S. His
negligence lay in not waiting for half an hour after the test dose. But the negligence did not cause the onset of
encephalitis for it was almost certain that when the plaintiff did not show any reaction for three days after
administration of full dose he would not have shown any sign of reaction even if the doctor had waited for half an
hour after the test dose. The plaintiff's suit, therefore, failed against the doctor. The plaintiff had also sued the Post
Office and that part of the case is considered later in this Chapter. Negligence in not telling the patient of the risk
involved in a surgical operation or treatment would not justify award of damages on materialization of the risk after
the operation or treatment if it can be shown that the patient would have proceeded with the surgery or treatment
even if he had been told of the risk involved for the claim for damages would then fail on the ground of causation. 3
The same principle applies where the defendant employer's negligence lies in not taking prescribed safety
precautions. In Mc Williams v. Sir William Arrol & Co ., 4 the claim was by the widow of a workman of the
defendants, who fell from a steel tower which was being erected and died. The defendants were at fault in not
providing safety belts, the use of which would have prevented the accident. Evidence was, however, given that
throughout for a long period when belts had been provided the deceased never used them and a finding was
reached that the deceased would not have worn a belt on the date of the accident even if it had been available. On
this finding it was held that the defendant's breach of duty in not providing safety belts did not cause the accident
and the defendants were not liable. Refuting the argument that if a person is under a duty to provide safety belts
and fails to do so, he cannot be heard to say ‘even if I had done so they would not have been worn’, LORD REID
observed : “If I prove that my breach of duty in no way caused or contributed to the accident, I cannot be liable in
damages. And if the accident would have happened in just the same way, whether or not I fulfilled my duty, it is
obvious that my failure to fulfil my duty cannot have caused or contributed to it. No reason has ever been suggested
why a defender should be barred from proving that his fault, whether common law negligence or breach of statutory
duty, had nothing to do with the accident.” Mc Williams case, though technically correct on principles, is an extreme
case in so far as it found against the plaintiff on the hypothetical question whether the deceased workman would
have used the safety belt which the defendants ought to have provided. In actual practice and speaking generally,
such a “causal uncertainty is apt to be resolved by the strong sympathetic bias for the victim of a proven
wrongdoer”. 5
It must here be mentioned that the wrongful act of the defendant need not have been the sole or principal cause of
the damage. The defendant would be liable for the damage if his wrongful act caused or materially contributed to it
notwithstanding that there were other factors for which he was not responsible which had contributed to the
damage. 6
The ‘but for’ test is, however, not of universal application and a lesser degree of causal test may be applied in
special circumstances to prevent injustice. In Mc Ghee v. National Coal Board 7 the workman contracted dermatitis
after some days spent in cleaning brick kilns. The employer was not at fault for the hot and dusty condition of the
brick kilns. The employer's fault lay in not providing washing facilities as a consequence of which the employee had
to cycle home unwashed. It was not proved and could not have been proved with the knowledge relating to onset of
dermatitis then available that the washing would have been effective to prevent onset of dermatitis. But it was found
that the absence of washing materially increased the risk of the disease and on this finding the defendant was held
liable. Thus in the special circumstances of this case the ‘but for’ test was not insisted upon and no distinction was
drawn between making a material contribution to causing the disease and materially increasing the risk of
contracting it. This is how Mc Ghee's case was understood in Fairchild v. Glenhaven Funeral Services. 8 In this
case the claims were by or on behalf of the estates of former employees. In each case the employee had worked at
different times and for differing periods under more than one employer. Both employers were in breach of duty
towards the employee to take reasonable care to take all practicable measures to prevent him from inhaling
asbestos dust because of the known risk that the dust if inhaled may cause mesothelioma. The employee was
found to be suffering from a mesothelioma because of inhalation of excessive asbestos dust during his employment
but he was unable to prove on the balance of probabilities due to current limits of scientific knowledge that his
mesothelioma was the result of inhaling asbestos dust during his employment by one or other or both of his
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employers. The House of Lords held that in the circumstances the ‘but for’ test would have led to unfair result by
denying redress to the employee and could be departed from and a lesser degree of causal connection applied
namely that by materially increasing the risk of the disease each employer had materially contributed to causing the
employee's disease. Both the employers were, therefore, jointly held liable. Chester v. Afsher 9 is yet another case
where in the special circumstances ‘but for’ test was not followed. In this case the claimant, a patient suffered from
severe back pain. An eminent neurosurgeon whom she consulted advised for surgery but negligently failed to
inform her of the one to two per cent risk of paralysis inherent in such an operation. The operation was conducted
without any negligence but unfortunately the very risk which the surgeon had failed to inform materialised and the
patient suffered partial paralysis. In the claim for damages the claimant did not prove that she would never have
had the operation had she been told about the risk and all that she proved was that she would then not have
consented to the operation which was performed resulting in the injury. Although the risk, of which the patient was
not warned, was not created or increased by the failure to warn yet it was held that the patient was entitled to
succeed. In this case there was a breach of duty on the part of the doctor towards the patient in not informing her of
the risk and the patient would have remained remedy less had the ‘but for’ test of causation been applied and,
therefore, in the special circumstances that test was not applied. 10
In Gregg v. Scot 11 the House of Lords was faced with a new problem whether in the law of clinical negligence a
patient who has suffered an adverse event is entitled to recover damages for loss of a chance of more favourable
outcome. By majority that question was answered in the negative. The facts in this case were that the patient had a
lump under his arm which he showed to Dr. Scott who thought it was a collection of fatty tissue. That was the most
likely explanation but unfortunately it was wrong. The patient had cancer of a lymph gland which was discovered a
year later. He was treated by chemotherapy and was still alive after nine years when the appeal was heard. Dr.
Scott was found negligent in excluding the possibility that the growth might be cancerous. He should have referred
the patient to a routine check up in a hospital which would have settled the matter. The patient however failed to
prove on a balance of probabilities that Dr. Scott's negligence had affected the course of his illness or prospects of
survival. The patient's alternative submission that loss of a chance of a favourable outcome should itself be a
recoverable head of damage in cases of clinical negligence was negatived.
It need hardly be stated that if out of the two competing factors (of which one is tortious) the evidence fails to
establish that the tortious factor has caused or aggravated the damage it will have to be held that the damage was
caused solely by the other factor. In Kay v. Ayrshire and Arram Health Board , 12 the plaintiff's son a child aged
two years was treated for pneumococcal meningitis in a hospital managed by the defendant. In the course of the
treatment the child was administered negligently an overdose of penicillin. The child suffered deafness and the suit
was for damages on that account. The evidence failed to establish that an overdose of penicillin could have caused
or aggravated deafness whereas it was established that deafness was a common sequela of pneumococcal
meningitis. The House of Lords upheld the dismissal of the suit observing that since according to the expert
evidence, an overdose of penicillin had never caused deafness, the child's deafness had to be regarded as
resulting solely from the meningitis. The question whether a particular factor has caused or materially contributed to
the damage has to be answered on a balance of probabilities. 13 In Hotson v. East Buck Shire Area Health
Authority , 14 the plaintiff when 13 years of age injured his hip by a fall. The plaintiff was taken to a hospital run by
the defendant. The injury was not correctly diagnosed and the plaintiff was sent home. After five days of severe
pain the plaintiff was taken back to the hospital. The nature of the hip injury was such that it caused deformity of the
hip joint restricting mobility and a major permanent disability developed by the age of 20. The plaintiff claimed
damages for negligence of the medical staff. The defendant admitted that delay in diagnosis amounted to
negligence but denied that the delay had adversely affected the plaintiff's long term condition. At the trial it was
found that even if the medical staff had correctly diagnosed when the plaintiff first came there was still a 75% risk of
the plaintiff's disability developing and so on the balance of probabilities even correct diagnosis and treatment
would not have prevented the disability from occurring. The trial judge and the Court of Appeal however, awarded
the plaintiff 25% of the full value of the damages awardable for the disability on the ground that the negligence in
the diagnosis denied the plaintiff a 25% chance of full recovery. The House of Lords reversed this award holding
that when on a balance of probabilities, which was the correct test on a question of causation, the plaintiff failed to
prove that the negligence in diagnosis caused the permanent disability he was not entitled to any damages on that
account. It was also held that had the plaintiff succeeded in proving that the negligence in diagnosis had caused the
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damage he would have been entitled to full damages. In the words of LORD ACKNER: “Where causation is in
issue, the judge decides that issue on the balance of the probabilities. There is no point or purpose in expressing in
percentage terms the certainty or the near certainty which the plaintiff has achieved in establishing his cause of
action. Once liability is established on the balance of probabilities, the loss which the plaintiff has sustained is
payable in full. It is not discounted by reducing his claim by the extent to which he has failed to prove his case with
100% certainty.” 15 Further, when the plaintiff's injury is attributable to a number of causes including the
defendant's negligence, the combination of the defendant's breach of duty and the plaintiff's injury does not give
rise to any presumption that the defendant's negligence caused or materially contributed to the injury and the
burden of proving the causative link between the defendant's negligence and the plaintiff's injury remains on the
plaintiff. 16 The link can be inferred from evidence on balance of probabilities but cannot be held to be proved on
the basis of any presumption. 17 In Wilsher's 18 case, the plaintiff a child who was prematurely born suffered from
various illnesses including oxygen deficiency. While in a special baby unit of the hospital where he was born, the
plaintiff was negligently given excess oxygen. The plaintiff was later on discovered to be suffering from an incurable
condition of the retina resulting in near blindness. The plaintiff's retinal condition could have been caused by excess
oxygen as also by five other conditions which had afflicted the plaintiff. In an action for damages against the Health
Authority, the House of Lords held that there was no presumption that the retinal condition was caused or materially
contributed by the excess oxygen and the burden lay on the plaintiff to prove the causation link. In the case of Page
v. Smith (No. 2) , 19 the plaintiff who was involved in a motor accident due to negligence of the defendant did not
suffer any physical injury. He had, however, earlier suffered from chronic fatigue syndrome (CFS) which was
exacerbated by the accident. The balance of medical opinion was to the effect that the accident could have
materially contributed to the recrudescence of plaintiff's CFS and the plaintiff was awarded damages on that basis.
Different problem arises when the events causing damage to the plaintiff are not simultaneous but successive.
Such a problem is illustrated by the case of Baker v. Willoughby . 20 In that case the plaintiff's leg was injured in
1964 when he was knocked down by a car which was negligently driven by the defendant. In 1967, before the
action came for trial, the plaintiff was shot in the same leg during an armed robbery and the limb had to be
amputated well above the knee. It was submitted by the defendant that no loss or injury suffered thereafter by the
plaintiff could be attributed to his tort since its effect was obliterated by the gunshot injury followed by amputation.
The trial judge rejected this submission and allowed full damages taking both past and future losses into account on
the basis of continued weakness and pain in the left ankle and the possibility of later development of arthritis in the
leg. The defendant's submission, however, succeeded in the Court of Appeal but on further appeal, the House of
Lords restored the decision of the trial Judge. LORD REID (with whom LORD GUEST, VISCOUNT DILHORNE and
LORD DONOVAN agreed) made the following observations : “If the later injury suffered before the date of the trial
either reduces the disabilities from the injury for which the defendant is liable, or shortens the period during which
they will be suffered by the plaintiff, then the defendants will have to pay less damages. But if the later injury merely
becomes a concurrent cause of the disabilities caused by the injury inflicted by the defendant, then in my view they
cannot diminish the damages.” 21 LORD PEARSON in the same case said : “The supervening event has not made
the plaintiff less lame or less disabled nor less deprived of amenities. It has not shortened the period over which he
will be suffering. It has made him more lame, more disabled, more deprived of amenities. He should not have less
damages though being worse off than might have been expected.” 22 The policy consideration leading to the
decision was that otherwise the second tort-feasor could (on the principle that a tort-feasor is entitled to take his
victim as he finds him) reduce the damages against him on the ground that he was only responsible for the removal
of an already damaged leg, and not for removal of a sound leg; thus if the first tort-feasor escaped liability, the
plaintiff could not get full compensation for the injuries done to him. Further in this case the second tort-feasor i.e.
the robbers, even if traceable, were in all probability men of straw and a suit against them for damages would have
been a fruitless exercise. Baker's case, though not overruled, came up for strong criticism in Joblin v. Associated
Dairies Ltd . 23 which was a case where the plaintiff received a back injury arising due to the defendant's breach of
statutory duty and the injury impaired the plaintiff's capacity to work by 50%. During the pendency of the plaintiff's
action for trial, he was found suffering from a spinal disease which was unconnected with the back injury but which
rendered him wholly unfit to work. The House of Lords held that the defendants were not liable for any loss of
earnings suffered by the plaintiff after the onset of the spinal disease rendering him wholly unfit to work. The
principle that was applied was that in assessing damages, the vicissitudes of life are to be taken into account so
that the plaintiff is not overcompensated and that a supervening illness known at the time of the trial is a known
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vicissitude about which the Court ought not to speculate when it in fact knew. The criticism of Baker's case in
Joblin's case is that it failed to apply the vicissitude principle, and failed to notice the compensation payable under
the Criminal Injuries Compensation Scheme. The distinction between the two cases on facts is that in Baker's case
the first and the second injuries were both from tortious acts whereas in Joblin's case the second injury was from a
supervening illness. Baker's case, though shaken by Joblin's case, is still an authority in case of disabling injuries
arising from successive and independent tortious acts 24 and it may find additional support in India where there is
no scheme statutory or otherwise corresponding to Criminal Injuries Compensation Scheme as applied in England.
In a recent case where the claimant was exposed to asbestos dust while working for several years with different
employees and developed asbestosis but had claimed damages for personal injury against only one of the
employers on the ground of negligence and breach of statutory duty, it was held by the court of appeal that the
defendant would be liable only to the extent that he had contributed to the disability. 25
There is much to be said for the view expressed by Laws L.J. that there is no decisive test of causation and the law
is that every tortfeasor should compensate the injured claimant in respect of that loss or damage which he should
be justly held responsible and that the elusive conception of causation should not be frozen into constricting rules.
26
1(C) Remoteness 1(C)(i) Foreseeability
There would be manifest injustice if a person were held responsible for all consequences of his act which in theory
may be endless. A person is, therefore, held responsible in law only for consequences which are not remote. A
damage or injury though caused by a tortious act of the defendant will not qualify for award of damages if it is too
remote. Towards the middle of the 19th Century, two competing views were advanced as laying down the test of
remoteness. According to one view foreseeability is the test of remoteness. In other words, on this view
consequences are too remote if a reasonable man would not have foreseen them. 27 According to the other view,
directness is the correct test, that is to say, the defendant is liable for all direct consequences of the tortious acts
suffered by the plaintiff whether or not a reasonable man would have foreseen them. 28 It is the test of
foreseeability that now holds the field but to properly understand the difference between the two views, it is more
convenient to first notice the implication of the test of directness.
The leading authority of the test of directness is the decision of the Court of Appeal in In Re an Arbitration between
Polemis and Furness, Withy & Co . 29 In this case, the defendants chartered the plaintiff's ship, the Polemis, to
carry a cargo which contained a quantity of Benzine or petrol. Some of the petrol cases leaked on the voyage and
there was petrol vapour in the hold. While shifting some cargo at a port, the stevedores employed by the charterers
negligently knocked a plank out of a temporary staging erected in the hold, so that the plank fell into the hold and in
its fall by striking something caused a spark which ignited the petrol vapour and the vessel was completely
destroyed. It was held that as the fall of the board was due to the negligence of the charterers’ servant, the
charterers were liable for all the direct consequences of the negligent act including destruction of the ship even
though those consequences could not have been reasonably anticipated. According to this case, once the tortious
act is established, the defendant is to be held liable for all the damage which “is in fact directly traceable to the
negligent act, and not due to independent causes having no connection with the negligent act”. 30 On this view, if
the tort concerned is negligence, foreseeability of some damage is relevant to decide whether the act complained of
was negligent or not but the liability for damages is not restricted to foreseeable damage but extends to all the
damage directly traceable to the negligent act.
The test of foreseeability in preference to the test of directness came to be established by the decision of the Privy
Council in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. popularly known as Wagon Mound No 1
. 31 In this case, during bunkering operations in Sydney harbour, a large quantity of oil was negligently allowed to
spill from the Wagon Mound, a ship under the defendant's control as charterers. The oil spread to the plaintiff's
wharf where another ship was being repaired. During welding operations in the course of repairs, a drop of molten
metal fell on a floating waste setting it on fire and this ignited the floating oil resulting in the destruction of the wharf
by fire as also the vessel that was being repaired.
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In this suit, which was restricted to damage to the wharf (there was another suit by the owner of the ship that was
being repaired which is discussed later), the trial Judge's finding was that the defendant did not know and could not
reasonably be expected to have known that the oil was capable of being set a fire when spread on water. He,
however, found that the destruction of the wharf by fire was a direct though unforseeable consequence of the
negligence of the defendant and gave judgment for the plaintiff.
The Supreme Court of New South Wales affirmed the decision of the trial Judge. In further appeal by the defendant
the Privy Council allowed the appeal. In holding foreseeability to be the correct test, the Judicial Committee
observed that the Polemis case should not be regarded as good law “for it does not seem consonant with current
ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial
foreseeable damage, the actor should be liable for all consequences however unforeseeable and however grave,
so long as they can be said to be direct”. 32 After pointing out that the test of directness looked at the happenings,
after the event, it was further observed: “After the event even a fool is wise. But it is not hind sight of a fool; it is the
foresight of a reasonable man which alone can determine responsibility.” 33
In Wagon Mound No. 2 34 which was a suit against the same defendant by the owner of the vessel which was
being repaired and which was damaged by fire, the evidence was different and the finding reached by the Privy
Council was that the risk of the oil on the water catching fire was foreseeable; so the defendant was held liable. The
Privy Council refuted the argument that if a real risk can properly be described as remote it must be held to be not
reasonably foreseeable and observed: “If a real risk is one which would occur to the mind of a reasonable man—
and which he would not brush aside as far fetched, and if the criterion is to be what that reasonable man would
have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no
difficulty, involved no disadvantage and required no expense.” 35 The finding that the damage by fire was
foreseeable was reached on the following considerations: (1) There was a real risk of fire although remote; (2) The
risk was great in the sense that if the oil caught fire serious damage to ships and property was very likely; (3) A
qualified Chief Engineer of the defendant would have known the gravity of the risk; (4) Action to eliminate the risk
presented no difficulty, disadvantage or risk; (5) From the very beginning the discharge of oil was an offence and
was causing loss to the defendant financially; and (6) A reasonable man in the position of a Chief Engineer would
have realised and foreseen and prevented the risk.
The effect of the decision in Wagon Mound No. 2 36 is to affirm and explain the test of foreseeability. A tort-feasor
is liable according to the explanation given of foreseeability in this case, “for any damage which he can reasonably
foresee may happen as a result of the breach (of duty) however unlikely it may be, unless it can be brushed aside
as far fetched.” 37 This case (Wagon Mound No. 2 ) also establishes that the test of foreseeability is not limited to
the tort of negligence but applies also to the tort of nuisance. In Wagon Mound No. 1. 38 the Privy Council reserved
its opinion on the question whether the test of foreseeability could be applied to a tort of strict liability. It has now
been authoritatively decided by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Countries Leather Plc .
39 that even in cases of strict liability governed by the rule in Rylands v. Fletcher 40 , foreseeability of damage of
the relevant type, if there be escape from the land of things likely to do mischief, was a prerequisite of liability.
However, it has been said that in action for deceit, damages are not restricted to foreseeable damage. 41
The House of Lords in Hughes v. Lord Advocate 42 ; Jolly v. Sutton London Borough Council, 43 and the Court of
Appeal in Doughty v. Turner Manufacturing Co. 44 accepted the Privy Council decision in Wagon Mound No. 1.
These cases also lay down and illustrate that the test of foreseeability is satisfied if the damage suffered is similar in
kind though different in degree and that the precise sequence of events or extent of the damage need not have
been foreseeable; but if the damage suffered is altogether different in kind, the test of foreseeability is not satisfied,
and the plaintiff cannot recover. “What must have been foreseen is not the precise injury which occurred but injury
of a given description. The foreseeability is not as to particulars but the genus.” 45 In Hughes ’ case 46 the Post
Office maintenance gang before going for a tea-break, left an open manhole unattended after covering it with a
canvas shelter surrounded by four kerosene lamps. A boy, aged eight, brought one of the lamps in the shelter and
started playing with it when he stumbled and it fell into the manhole. There was a violent explosion and the boy
himself fell into the manhole and sustained severe burn injuries. It was foreseeable that boys might enter the shelter
and play with the lamps and that spilled kerosene might catch alight and cause burn injuries. What actually
happened was that kerosene vapours were formed by the heat of the lamp and set off by its flame resulting in the
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explosion which was not foreseeable. The House of Lords held the defendants liable rejecting the distinction
between burning of kerosene and exploding of kerosene vapours. It will be seen that the foreseeable and actual
injuries were of the same kind that is to say burn injuries resulting from kerosene coming in contact with naked
flame and the difference only lay in the manner in which the events were predictable and the way they happened for
instead of the oil coming in contact it was its vapour which came in contact with the flame of the lamp causing the
explosion. This distinction was too fine to make the accident different in kind from that which was foreseeable. In
Doughty's case 47 , the foreseeable risk was injury to workmen from splash of extremely hot molten liquid if a thing
fell into it. What happened actually was that an asbestos cover fell into the liquid and the extreme heat caused the
asbestos cement to undergo a chemical change creating or releasing water which turned to steam and which in one
or two minutes later caused an eruption of the molten liquid from the cauldron injuring the plaintiff workman. The
workman was not injured by the splash, if any, from falling of the cover into the liquid. Until the accident had been
investigated, no one knew or suspected that heat can cause such a chemical change in asbestos cement. The
Court of Appeal held the defendant not liable on the reasoning that the accident that happened was not merely a
variant of but of entirely different kind to that which was foreseeable. Hughe's case, 48 also shows that if the
damage is of the same kind as was foreseeable, the defendant will be liable even if the magnitude of the accident
and the extent of damage greatly varied from what was foreseeable. 49
1(C)(ii) Intended Consequences
Intended consequences of the tort-feasor are evidently foreseeable. But an intentional wrongdoer's liability will
cover all consequences, whether foreseeable or not, which result from his wrongful act. This is not affected by the
Wagon Mound cases. The striking illustration of the extent of intentional wrongdoer's liability is furnished by the
case of Scott v. Shepherd 50 where the defendant threw a lighted squib into the market house when it was
crowded. The fiery missile came down on the shed of a vendor of ginger bread who to protect himself caught it
dexterously and threw it away from him. It then fell on the shed of another ginger bread seller, who passed it on in
precisely the same way, till at last it burst in the plaintiff's face and put his eye out. The defendant was held liable to
the plaintiff. It is an application of the same or similar principle that in an action for deceit which is an intentional tort,
the tort-feasor is liable for all actual damage, whether foreseeable or not, which directly flows from the fraudulent
act. 51 This principle was approved by the House of Lords and it was held that in an action for deceit the plaintiff is
not restricted to the difference between real value of the subject matter on the date of sale and the price paid by him
for the asset acquired but to all consequential loss from the misrepresentation which induced the plaintiff to retain
the asset or in other words the plaintiff was by reason of the fraud locked into the property. 52
1(C)(iii) “Eggshell Skull” cases
Wagon Mound also leaves unaffected the “ eggshell skull ” cases. A tort-feasor takes his victim as he finds him. If
the plaintiff suffers personal injury from the wrongful act of the defendant, it is no answer to the claim that the
plaintiff would have suffered less injury “if he had not unusually thin skull or an usually weak heart”. 53 The
principle is illustrated by Smith v. Leech Brain & Co. Ltd . 54 where a workman of the defendants because of their
negligence suffered a burn injury on his lower lip which promoted cancer at the site of the burn resulting in his
death. But for the burn, the cancer might never have developed, though there was a premalignant condition and
there was a likelihood that it would have done so at some stage in his life. In an action by the widow of the
deceased workman, the defendants were held liable for his death on the principle that a tort-feasor must take his
victim as he finds him. Smith's case was followed in Robinson v. The Post Office 55 the facts of which have been
stated earlier 56 in decreeing the claim against the Post Office. It was foreseeable that if a workman slipped from a
ladder made slippery because of the negligence of the employer, the workman was likely to suffer injury needing
medical treatment in the form of injection of ATS. Although it was not foreseeable that the injection given even
without any negligence on the part of the doctor would cause encephalitis to the workman because he was ellergic
to the second dose of ATS yet the Post Office were held liable on the principle that they were bound to take the
plaintiff as they found him. 57 The case also holds that foreseeable medical treatment given without any
negligence on the part of the doctor does not constitute Novus actus interveniens . 58
1(C)(iv) Intervening acts or events; Novus actus interveniens

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Damage resulting to the plaintiff after the chain of causation set in motion by the defendant's wrongful act is
snapped is too remote and does not qualify for award of damages against the defendant. 59 The proposition so
stated is simple but the difficulty lies in formulating the principles as to when an act or event breaks the chain of
causation. The snapping of the chain of causation may be caused either by a human action or a natural event.
As regards human action, two principles are settled; one that human action does not per se severe the connected
sequence of acts; in other words, the mere fact that human action intervenes does not prevent the sufferer from
saying that injury which is due to that human action as one of the elements in the sequence is recoverable from the
original wrongdoer; and secondly that to break the chain of causation it must be shown that there is something
ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be
described as either unreasonable or extraneous or extrinsic. 60 If there is a duty to avoid risk to children, their
unexpected behaviour does not break the chain of causation “for their ingenuity in finding unexpected ways of doing
mischief to themselves and others should never be underestimated.” 61
As an application of the above principles, a reasonable act done by a person in consequence of the wrongful act of
the defendant which results in further damage does not break the chain of causation. 62 In The City of Lincoln , 63
a collision took place between a steamer and a barge in which the steamer alone was to be blamed. The steering
compass, charts and other instruments of the barge were lost in the collision. The Captain of the barge made for a
port of safety, navigating his ship by a compass which he found on the board. The barge without any negligence on
the part of the Captain or the crew, and owing to the loss of the requisites for navigation, grounded and was
abandoned. The Court of Appeal held that the Captain's action of navigating the barge to a port of safety, in which
he did not succeed, was a reasonable act and did not break the chain of causation. It will be seen that as a
consequence of the collision, the Captain of the barge was placed in the difficulty of taking a decision for the safety
of the barge. He may have decided to remain where the barge was in the hope that the vessel would be picked up.
The other alternative was to make for a port of safety. Both the alternatives were not free from risk; but neither
could be called unreasonable. So the Captain's action in deciding to take one of them did not constitute an act
breaking the chain of causation. In Lord and another v. Pacific Steam Navigation Co. Ltd., the Oropesa , 64 the
facts were that a collision occurred between the Oropesa and the Manchester Regiment . The latter vessel was
seriously damaged and the Captain ordered the majority of the crew to take to lifeboats who safely reached
Oropesa. The Captain, after sometime, boarded another lifeboat with the rest of the crew. He hoped to persuade
the Captain of Oropesa to take the Manchester Regiment in tow or to arrange for salvage assistance, and in any
event, to arrange for messages to be sent out and to obtain valuable advice. The lifeboat capsized and nine of the
crew died. The Oropesa returned safely with survivors and the Manchester Regiment sank. In a claim for damages
by the dependants of one of the deceased crew, the contention was that the chain of causation had been broken by
the act of the Captain in attempting to go to Oropesa with the crew in a lifeboat. In rejecting this contention, it was
held that the action taken by the Captain was a natural consequence of the emergency in which he was placed by
the negligent act of the Oropesa and there was no break in the chain of causation and that the death of the seamen
was a direct consequence of the negligent act of the Oropesa. These cases were followed by the Madhya Pradesh
High Court in Chaurasiya & Co. v. Smt. Pramila Rao . 65 The facts in this case were that the driver negligently
drove a passenger bus over a causeway submerged in floodwaters. The bus skidded and stopped after crossing
one-third of the causeway when one of the wheels got stuck up in stones embedded on the sides of the causeway.
One of the passengers crossed the causeway safely on foot. Others remained in the bus. The water was then up to
waist level. When the water level rose further, the passengers climbed to the top. The water went on rising and the
bus was swept away by the flood and the passengers died. In a claim by the dependants of one of the deceased
passengers, it was argued that the deceased should have crossed the causeway on foot and should not have
remained in the bus. There were two courses before the marooned passengers in the bus; one was to cross the
river by walking the submerged causeway and the other was of remaining in the bus in the hope that the water will
recede. Both the courses involved a great risk, but neither could be called unreasonable looking to the
circumstances in which the passengers were placed. The Court, therefore, negatived the contention that the death
of the passengers was caused by their own act of remaining in the bus and not by the negligent act of the driver in
driving the bus over a flooded causeway. The Court also observed: “If the persons affected by the negligent act of
the defendant are exposed to risk of misjudgment of accident which would not have otherwise arisen, further
damage from the materialization of the risk may be recoverable. A reasonable act by the persons affected by the
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negligence in a dilemma created by the negligent act cannot be held to be novus actus inter veniens which breaks
the chain of causation.” 66 These cases have to be contrasted with those where the plaintiff acts unreasonably. In
such cases further injury caused by the second accident following the plaintiff's unreasonable conduct cannot be
attributed to the defendant's wrongful act causing the first accident for the chain of causation is broken by the
plaintiff's unreasonable conduct. In Mckew v. Holland & Hannen & Cubbits (Scotland) Ltd. , 67 the plaintiff suffered
trivial injuries in the course of his employment which were caused by the fault of the defendants. His back and hips
were strained and sometimes his left leg became numb, i.e. he lost control of himself. But these injuries would have
got cured in a week or two. In the meantime, the plaintiff went to inspect a tenement flat in the company of his
family members. The stair was steep with wall on either side but without handrails. The plaintiff left the apartment
with his daughter to go down the stairs. His leg became numb. To avoid a fall, he jumped and landed heavily on his
right foot breaking the right ankle and a bone in his left leg. The plaintiff's conduct was unreasonable in the sense
that if he had given the matter a moment's thought he must have realised that he could only safely descend the
stair if either he went extremely slowly and carefully so that he could sit down if his leg gave way or waited for the
assistance of his family, instead the plaintiff chose to descend in such a way that when his leg gave way he could
not stop himself from jumping. The House of Lords rejected the argument that the second accident was foreseeable
and hence the defendants were liable. After holding that the plaintiff's unreasonable conduct was novus actus inter
veniens , LORD REID observed : “It is often easy to foresee unreasonable conduct or some other novus actus inter
veniens as being quite likely. But that does not mean that the defender must pay for damage caused by the novus
actus .” 68 LORD REID also pointed out that if there is no break in causation, the plaintiff is not non-suited “by
acting wrongly in the emergency unless his action was so utterly unreasonable that even on the spur of the moment
no ordinary man could have been so foolish as to do what he did”. 69 A recent case where this passage was
applied is Emeh v. Kensington and Chelsea and Westminster Area Health Authority. 70 In this case the plaintiff
had sterilisation operation which was negligently performed by two doctors employed by the defendants and some
months later, the plaintiff became pregnant. She decided not to have abortion and later gave birth to a child which
was congenitally abnormal. It was held that the negligent operation had confronted the plaintiff with the dilemma of
whether to have the child or an abortion and the fact that she decided against the abortion was not a novus actus
inter veniens . 71 This view is also in line with the opinion of the House of Lords in a later case. 72 Another recent
case 73 leads to the inference that if the plaintiff's unreasonable action resulting in further damage is caused by a
personality change from a brain injury suffered in an accident for which the defendant was responsible, there is no
novus actus and the defendant is liable for the further damages. In this case 74 the plaintiff suffered brain injury in
a car accident for which the defendant was responsible. Brain injury resulted in severe personality change which led
the plaintiff to sexually assault and wound with knife three women for which he was sentenced to life imprisonment.
It was held that since but for injuries received in the accident and the resulting personality change, the plaintiff
would not have committed the criminal acts for which he was sentenced to life imprisonment, he was entitled to
damages to compensate him for being imprisoned.
Rescue cases also illustrate the principle that a reasonable act done by a person in consequence of the wrongful
act of the defendant does not constitute novus actus breaking the chain of causation. It is reasonably foreseeable
that if the defendant's wrongful act has put a person in danger of death or personal injury some other person may
come forward to effect a rescue even by exposing himself to the same risk whether or not the person endangered is
one to whom he owes a duty to protect or is a mere stranger. 75 The rescuer can, therefore, claim damages from
the defendant for injury suffered by him in effecting a rescue 76 unless his act was a foolhardy act or wholly
unreasonable. 77
When the defendant's breach of duty lies in not doing something which he was required to do to prevent loss to the
plaintiff from foreseeable wrongful acts of third persons, such wrongful acts of third persons do not constitute novus
actus interveniens and damage resulting to the plaintiff from them is recoverable from the defendant. Thus, if the
defendant's duty was to take certain precautions for the safety of the plaintiff's goods and if the goods are stolen
because those precautions were not taken, the defendant is liable for the loss of goods to the plaintiff. 78 Indeed,
there is a broader principle involved in such cases which is stated to be that when the law imposes a duty to guard
against loss caused by the free, deliberate and informed act of a human being, the occurrence of the very act which
ought to have been prevented does not negative causal connection between the breach of duty and the loss. The
above principle is not restricted to cases where the deliberate act is of third parties but applies also to a case where
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the act is of plaintiff himself irrespective of whether he is of sound or unsound mind. A duty to protect a person of
full understanding from causing harm to himself is very rare but once it is found that in a particular case such a duty
is owed it would be self contradictory to say that the breach could not have been a cause of the harm as the victim
caused it to himself. 79 Thus when a prisoner of sound mind who was in police custody committed suicide as
proper precautions to prevent him from doing so were not taken, though there was previous history of suicide
attempts by him, the act of the prisoner of self destruction was held not to amount to novus actus interveniens. 80
Similarly when a person suffered serious injuries leading to severe depression as a result of breach of duty of the
defendant and committed suicide, it could not amount to novas actus interventions absolving the defendant. 81
Where the novus actus is caused by an irresponsible actor, it does not break the chain of causation. 82 Anyone
who invites or gives opportunity to mischievous children to do a dangerous thing cannot escape liability on the
ground that he did not do the wrong. 83
Subject to what has been stated above, where damage is caused by an intervening act of an independent third
party, something more than reasonable foreseeability as expressed in Wagon Mound cases is necessary.
According to LORD REID, where such human action “forms one of the links between the original wrongdoing of the
defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen
if it is not to be regarded as novus actus interveniens breaking the chain of causation”. 84 Thus as already seen,
foreseeable medical treatment given without any negligence does not break the chain of causation. 85 OLIVER
L.J. explained these observations in Lamb v. Camden London Borough 86 in these words: “All that LORD REID
seems to me to be saying is that the hypothetical reasonable man in the position of the tort-feasor cannot be said to
foresee the behaviour of another person unless that behaviour is such as would, viewed objectively, be very likely
to occur. Thus, for instance, if by my negligent driving, I damage another motorist's car, I suppose that theoretically
I could foresee that, whilst he leaves it by the roadside to go and telephone his garage, some ill-intentioned passer-
by may jack it up and remove the wheels. But I cannot think that it could be said that, merely because I have
created the circumstances in which such a theft might become possible, I ought reasonably to foresee that it would
happen.” 87 WATKINS L.J. in the same case observed that in addition to foreseeability one should see whether on
a practical view, the intervening act did not seem sufficiently connected with the original wrongful act of the
defendant. 88 In most cases, this difference in approach would make no difference to the result. It was so observed
by SCOTT, J. in Ward v. Cannock Chase District Council . 89 The cases of Lamb and Ward both related to claim of
compensation for damage caused by vandals and thieves to plaintiff's house property which became unoccupied
because of the negligent act of the defendant. In Lamb's case, the damage was held to be too remote but in Ward's
case, it was held to be very likely to happen for which the defendant was liable. The differing results were reached
having regard to the location of the houses and the chain of events intervening the defendant's negligence and
damage caused by vandals and thieves. A mini-bus belonging to the defendants’ bus company was left at the end
of a shift at one of the regular change over points with ignition keys in it. An unknown third party stole the bus and
knocked down the plaintiff's wife who died. It was held that the act of the thief constituted novus actus interveniens
which broke the chain of causation and the bus company was not liable in negligence for the death of the plaintiff's
wife. 90
Recklessness of a third party as distinguished from his mere negligence may break the chain of causation and
constitute novus actus interveniens . A car broke down at night in fog on dual carriageway. The driver of the car
was negligent in leaving the car on the carriageway instead of moving the car onto the verge. A lorry driven not
merely negligently but recklessly collided with the stationary car and then went out of control. The lorry ended up
overturned on the opposite carriageway. This would not have happened but for the reckless driving. Two other cars
collided with the overturned lorry. It was held that the lorry driver's reckless driving broke the chain of causation and
it was the sole cause of the accident on opposite carriageway. 91
Just as human action which is wholly unconnected with the wrongful act of the defendant may break the chain of
causation, so also a natural event although that action or event would not have affected the plaintiff had not the
defendant committed the wrongful act complained of. If A's car is damaged because of the negligence of B and it is
taken to a garage for repairs wherefrom it is stolen, B would not be liable to A for theft of the car from the garage.
Similarly, if the car is further damaged or destroyed by lightning and storm while it is in the garage B would not be
liable. In the above examples, the theft and so also the lightning and storm are wholly unconnected with the original
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wrongful act of B and break the chain of causation although neither of them would have affected A, had not B
committed the wrongful act for there would have been then no occasion to take the car to the garage for repairs. 92
Damage by such an act or event is not reasonably foreseeable in the context of the original wrongful act of the
defendant.
1(C)(iv-a) A Summary of principles in considering remoteness
In Simmons v. British Steel Plc, 93 Lord Rodger summarized the principles involved in considering the question of
remoteness of damage. The summary reads:
“These authorities suggest that, once liability is established, any question of the remoteness of damage is to be
approached along the following lines which may, of course, be open to refinement and development.
(1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably
foreseeable. 94
(2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is
liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may
not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the
pursuer, even if it was reasonably foreseeable. 95
(3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is
liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could
not have been forseen. 96
(4) The defender must take his victim as he finds him. 97
(5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable,
the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as
a result of his wrongdoing” 98
In Corr v. IBC Vehicle 99 where the above summary was quoted and applied, Corr was employed as a
maintenance engineer by IBC vehicles, the defendant. In an accident which took place in June 1996 because of
breach of duty or negligence of the defendant, Corr suffered severe injuries on the right side of his head. He
underwent long and painful reconstructive surgery. He remained disfigured, persistently suffered from
unsteadiness, mild tinnitus and severe headaches and difficulty in sleeping. He also suffered from post traumatic
stress disorder. Also as a result of the accident Corr became depressed, a condition which worsened with passage
of time, and developed suicidal tendency. A psychologist diagnosed his condition as one of ‘severe anxiety and
depression’. In May 2002, while suffering from severe depression Corr committed suicide. In June 1999 Corr had
instituted proceedings claiming damages for the physical and psychological injuries suffered by him. After his death
his widow was substituted as claimant and claimed damages for benefit of the estate. She also claimed damages
as a dependant for herself under the Fatal Accidents Act, 1976. It was only the latter claim as a dependant that was
contested and came up before the House of Lords in appeal by the defendant. In dismissing the appeal the House
of Lords held:
(1) At the time of his death the deceased had acted in a way he would not have done but for the injury which he
had suffered because of defendant's breach of duty. His conduct in taking his own life could not be said to
fall outside the scope of the duty which the defendant had owed him.
(2) A reasonable employer would have recognized the possibility not only of acute depression but of such
depression culminating in suicide as foreseeable.
(3) The rationale of the principle that a novus actus interveniens broke the chain of causation was fairness. It
was not fair to hold a tortfeasor liable for damage caused not by his breach of duty but by some
independent, supervening cause for which the tortfeasor was not responsible. That was not the less so
where the independent supervening cause was a voluntary informed decision taken by the victim as an
adult about his own future. But it was not so in this case where the suicide was the response of a man
suffering from a severely depressive illness which impaired his capacity to make reasoned and informed
judgment about his future, such illness being a consequence of the defendants’ tort.
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(4) The deceased's conduct in taking his own life could not be said to be unreasonable once it was accepted
that this conduct was induced by the defendant's breach of duty.
(5) As the deceased's conduct in taking his own life was an act performed because of psychological condition
which the defendant's breach of duty had induced, it was not a voluntary act giving rise to the defence of
volenti non fit injuria .
1(C)(v) Mitigation of Damage
A plaintiff who sues in a tort action cannot claim damages for that loss which he may have avoided by taking a
reasonable step. The principle is similar to that applied in actions for breaches of contract. 1 The question of
reasonableness is a question of fact. 2 In Selvanayagam v. University of West Indies , 3 the Privy Council laid
down that a plaintiff in an action for damages for personal injuries who rejects a medical advice in favour of surgery
must, in order to discharge the burden on him of proving that he acted reasonably in regard to his duty to mitigate
his damage prove that in all the circumstances including in particular the medical advice, he acted reasonably in
refusing surgery. It has been accepted by the Privy Council 4 that the decision in Selvanayagam is not an accurate
statement of the law and had given rise to a lot of criticism. LORD BINGHAM in that context quoted with approval
the following observation of Donaldson M.R. in Sotiros Shipping Inc. v. Sameiet Solholt, The Solholt [(1983) 1
Lloyd's Rep. 605, at p. 608]: “A plaintiff is under no duty to mitigate his loss, despite the habitual use by the lawyers
of the ‘duty to mitigate’. He is completely free to act as he judges to be in his best interests. On the other hand, a
defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting. A defendant is only liable
for such part of the plaintiff's loss as is properly, to be regarded as caused by the defendant's breach of duty.” 5
1(C)(vi) Further Examples
Where the defendant took up a pick-axe and chased the plaintiff's servant boy, who rushed for shelter into his
master's shop and in so doing knocked out the faucet from a cask of wine whereby the wine ran out and was lost, it
was held that the defendant was responsible in damages for the loss of wine. 6
The defendant's truck had, contrary to local regulations, been left on the street for the night, the shafts being shored
up and projecting into the road; a second truck was similarly placed on the opposite side of the road; the driver of a
third truck endeavouring to drive past the narrowed way thus left, struck the shafts of the defendant's truck which
whirled round, struck and injured the plaintiff who was on the side walk; it was held that the defendant was liable. 7
Where the defendant knowing the plaintiff to be a farmer sold him a cow which he warranted free from disease and
she was placed with other cows some of which became infected and died; the defendant was held liable for the
entire loss as being a natural damage. 8
The defendant left a loaded gun at full cock, beside a gap from which a private path led over defendant's lands from
the public road to his house. The defandant's son (aged fifteen), coming towards his father's house along the path,
found the gun, and returning with it to the public road, not knowing it was loaded, pointed it in play at the plaintiff
who was injured by the gun going off. It was held that the defendant was liable as the damage caused was not too
remote. 9
At a railway station some water had frozen upon the platform. The cause of this was unexplained, but from the ice
being nearly an inch thick, and extending nearly half-way across the platform, it had the appearance of having been
there some time. A passenger, while waiting for a train, not observing the ice, stepped upon it and fell, sustaining
serious injury. It was held that the defendants were guilty of actionable negligence in allowing the ice to remain on
the platform. 10
A water company left unfenced a stream of water which they had caused to spout up in a public highway. The
horses of the plaintiff were frightened and swerving from it fell into an unfenced excavation in the highway made by
contractors who were constructing a sewer, and were thereby injured. It was held that the water company and not
the contractors was liable, “as the proximate cause of the injury is the first negligent act which drove the carriage
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and horses into the excavation. That act was the spouting up of the water, by which the horses were frightened.
That was the causa causans of the mischief”. 11
The plaintiff delivered to the defendant a mare to be agisted on his field, which was separated by a wire fencing
from his neighbour's field in the occupation of a cricket club. Owing to the negligence of the defendant's servant in
leaving open a gate between the two fields the mare strayed into the field occupied by the cricket club, whereupon
some of the members of the club endeavoured in a careful and proper manner to drive her back through the gate.
The mare refused to go through the gate and having run against the wire fence fell over it and was injured. It was
held that the injury to the mare was the natural consequence of the gate having been left open and that the
defendant was liable. 12
The plaintiff, who had lent money to a certain company being asked for a further advance, employed the defendant,
a chartered accountant, to look into the affairs of the company. In a letter of instructions to the defendant the plaintiff
inserted libellous statements concerning the former manager and an auditor of the company. The defendant
handed the letter to his partner, who negligently left it at the company's office. The manager found it, read it and
communicated its contents to the two persons defamed, who sued the plaintiff for libel and recovered damages
against him, the jury in each case finding that the writer of the letter was actuated by malice. The plaintiff then sued
the defendant for breach of an implied duty to keep secret the letter of instructions. It was held that it was the duty
of the defendant to keep secret the contents of the letter; that as he had neglected that duty, the plaintiff could
recover nominal damages only and no more; that any further damages being in the nature of an indemnity for the
consequences of the plaintiff's own wilful wrong could not be recovered. 13
A herdsman on the defendant's farm contracted what is known as Weil's disease, a disease carried by rats but very
rarely contracted by human beings by reason of their very slight susceptibility to the disease. The knowledge of this
disease was as rare as the disease itself. On the question whether the defendants were liable on account of
negligent breach of their duty towards the plaintiff, it was held that the master's duty was to avoid exposing the
servant to a reasonably foreseeable risk of injury and on the facts the plaintiff's illness was not attributable to any
breach of this duty, and that Weil's disease was at best a remote possibility which the defendants could not
reasonably foresee, and hence the damage suffered by the plaintiff was unforeseeable and too remote to be
recoverable. 14
The plaintiff suffered an injury caused by the admitted negligence of the defendants. After attending the hospital she
felt shaken and the movement of her head was constricted by a collor which had been fitted to her neck. In
consequence she was unable to use her bifocal spectacles with her usual skill and she fell while descending stairs,
sustaining further injuries. It was held that the injury and damage suffered because of the second fall were
attributable to the original negligence of the defendants so as to attract compensation from them. 15
Loss of articles—Race—glasses.— The plaintiff was travelling with other passengers in a railway carriage, and on
the tickets being collected there was found to be a ticket short. The plaintiff was charged by the ticket collector with
being the defaulter, and on his refusing to pay the fare or leave the carriage, he was removed from the carriage by
the company's officers without any unnecessary violence. It turned out that the plaintiff had a ticket and he had left
a pair of raceglasses when removed. It was held that he could not recover for their loss as it was not the necessary
consequence of the defendants’ acts. 16
Currency notes.— The deceased's death was caused by a collision between the train in which he was travelling
and another train of the same railway administration. In an action for the pecuniary loss which resulted to members
of the deceased's family from his death a claim was included for Rs. 1,300 being the value of lost currency notes
which the deceased was carrying with him on the night in question. It was held that the defendant railway would not
be liable for loss resulting from the wrongful act (e.g. theft) of a third party, such as could not naturally be
contemplated as likely to spring from the defendant's conduct. 17
Putting up barrier in street.— The defendant was in occupation of certain premises, abutting on a private road,
which he used for athletic sports. He erected a barrier across the road to prevent persons driving vehicles up to the
fence surrounding his premises and overlooking the sports. In the middle of this barrier was a gap which was
usually open for vehicles, but which was closed when sports were going on. The defendant had no legal right to
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erect this barrier. Some person removed a part of the barrier armed with spikes from the carriage way and put it in
an upright position across the footpath. The plaintiff, on a dark night, was proceeding along the way when his eye
came in contact with one of the spikes and was injured. It was held that the defendant was liable for having
unlawfully placed a dangerous instrument in the road notwithstanding the fact that the immediate cause of the
accident was the intervening act of a third party in removing the dangerous instrument from the carriage way to the
footpath. 18
Damage caused by derelict vessel .—A vessel met with certain risks and injuries which compelled her crew to leave
her and she became a derelict. She was driven ashore by a violent storm and after having been abandoned was
forced by wind and waves against a pier, whereby serious damage was occasioned. It was held that the owners of
the ship were not liable. The Court said : “The ship should be dealt with as if it had been abandoned at the
antipodes, and had been ploughing the ocean, without a crew, for years before it was driven against the pier.” 19
Illness due to travelling in wrong train.— The plaintiff took tickets at W for himself, wife and children, to go to H by
the last train at night. By the negligence of the porters they were put into the wrong train and carried to E. Being
unable to obtain accommodation for the night at E, or a conveyance, they walked home, a distance of four miles,
and the night being wet the wife caught cold and medical expenses were incurred. It was held that the husband was
entitled to recover damages in respect of inconvenience suffered by being compelled to walk home, but that the
illness of the wife was a consequence too remote from the breach of contract for damages to be recoverable for it.
20
Damage resulting from robbery in train.— The plaintiff alleged that he had suffered damage through being robbed
while a passenger on the defendants’ railway, and that through the refusal of the defendants’ servants to stop the
train and afford him facilities for arresting the persons who had robbed him, he was prevented from recovering the
property stolen. He also claimed to recover the amount of the money stolen from him as damages for the negligent
overcrowding of the carriages. It was held that the damages claimed were too remote. 21
Fowl running foul of cycle.— The plaintiff was riding a bicycle on a highway upon the footpath of which were some
fowls belonging to the defendant. As the plaintiff got abreast of the fowls a dog belonging to a third person
frightened the fowls one of which flew into the spokes of the machine, causing it to upset, whereby the plaintiff
suffered personal injury and the bicycle was damaged. It was held that even if the fowl was not lawfully on the
highway, the circumstances under which the accident happened prevented the damage from being the natural
consequence of its presence there, and that the plaintiff could not recover. 22
Death caused by horse kick.— A workman was killed, in the course of his employment, by the kick of a horse
belonging to a third party, by whose servant it was brought upon the employer's premises and left there unattended.
It was held that in the ordinary course of things a horse, not known to be vicious, would not kick a man and that the
injury to the deceased was not sufficiently connected with the trespass or negligence to be the natural or probable
consequence of it. 23
Suicide due to anxiety neurosis. —One P was injured in an accident which occurred when he was employed by the
defendants and in circumstances in which they were liable to P for negligence. Thereafter, P suffered from acute
anxiety neurosis with depressive features which so sapped his powers of resistance that, about a year and a half
later, he took his own life. It was held that the defendants were liable to P's widow in damages as she had
sustained damage by P's death and that was directly traceable to P's injury in the accident for which the defendants
were responsible and that P's act in taking his own life did not break the chain of causation. 24
Loss of profits due to plaintiffs absence through injury. —The plaintiff, while driving his car, received injuries in a
collision with another car of which the driver was killed. The plaintiff was one of the two directors of a private
company, and held nearly half the share capital. The company carried on the business of textile merchants, and the
plaintiff acted as buyer and seller. Owing to the plaintiff's absence on account of his injuries there was a substantial
diminution of the turnover and profits of the company, so that there was a heavy reduction in the proceeds of the
business available for the plaintiff and his co-director. In an action for negligence against the personal
representatives of the deceased driver, the plaintiff claimed, as one of the heads of damage, damages in respect of
the diminution of the distributions received by him from the company. The lower Court found that the deceased had
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been wholly to blame, and awarded the plaintiff 1,500 in respect of this particular claim. On an appeal, it was held
that the plaintiff had suffered a real loss flowing from a tortious act, and that the damages were not too remote. 25
Uncertain voluntary payment.— Where the plaintiffs sued for possession of certain idols and prayed for damages
on the ground that they had been prevented from receiving certain sums, which they might have received if they
had custody of the idols, it was held that no suit would lie as the damages were based upon uncertain and merely
voluntary payments. 26
Loss of crops.— Where loss of rents resulted to a landlord from his ryots’ crops being injured and destroyed owing
to a neighbouring landlord's stopping the outlets by which surface drainage water had from time immemorial flowed
from the plaintiff's land, it was held that this was not too remote a damage. 27 The plaintiff's and the defendant's
plots of land were adjacent to each other. In the midst of monsoon the defendant dug a tank in the side of his plot
without any embankment and put the earth on the sides. The earth spread over the plaintiff's adjoining plot on
account of heavy rains and thereby caused damage to the plaintiffs’ paddy crop. In a suit by the plaintiffs for
damages, it was held that on the facts and circumstances of the case the defendant having not foreseen the
consequences of his act, which was in the course of the normal use of his land, he was not liable. 28
Death of animal during lawful detention. —The defendants seized the plaintiff's cow on the ground that it had
trespassed the previous day into their cotton plantation and refused to give it up. The cow while it was in their
custody suddenly died. The plaintiff sued for the value of the cow. It was held that the death of the cow was not a
natural or probable result of the seizure and detention and that the defendants therefore were not liable. 29
Damage resulting from judicial act. —A dispute having arisen regarding the possession of certain land, an order
was passed, under s. 131 of the Criminal Procedure Code, 1872, forbidding both the plaintiff and the defendant to
interfere with the land until either established his title in a civil Court. The land in consequence of this order was not
cultivated in the following year. The plaintiff sued for damages for the loss of profits resulting from non-cultivation of
the land. It was held that the damages were not the probable result of the defendant's act but were the
consequences of a judicial act proceeding from the Magistrate alone.30
Threat to prosecute .—The plaintiff applied to a Municipal Board for permission to construct a building. One month
after his application he was entitled to proceed with his construction after giving a requisite notice to the board. In
reply to such notice the Board threatened to prosecute him if he started building operations. The plaintiff sued the
Board for damages for obstructing him to proceed with the work. It was held that no action lay as the plaintiff was
entitled to proceed with his work and that the damage contemplated by the plaintiff was too remote. 31
Damage due to granting of licence.— A Municipal Board granted a licence to erect a flour mill adjacent to the house
of the plaintiff although the bye-laws of the Board prohibited the grant of such licence near residential premises. A
flour-mill was erected and due to the vibrations produced by the working of the flourmill, the plaintiff's house was
damaged. In a suit against the Board for damages, it was held that the damage to the house was not the direct
result of the unlawful act of the Board in granting the licence and, therefore, the Board was not liable for the
damage. 32
1(D) Measure of damages 1(D)(i) General Principle
The expression “measure of damages” means the scale or rule by reference to which the amount of damages to be
recovered is, in any given case, to be assessed. Damages may rise to almost any amount, or they may dwindle
down to being merely nominal. The law has not laid down what shall be the measure of damages in actions of tort;
the measure is vague and uncertain, depending upon a vast variety of causes, facts and circumstances. In case of
criminal conversion, battery, imprisonment, slander, malicious prosecution, etc., the state, degree, quality, trade, or
profession of the party injured, as well as of the person who did the injury, must be, and generally are, considered
by a jury in giving damages. 33 “The common law says that the damages due either for breach of contract or for
tort are damages which, so far as money can compensate, will give the injured party reparation for the wrongful act.
If there be any special damage which is attributable to the wrongful act that special damage must be averred and
proved.” 34 This is the principle of restitutio in integram which was described by LORD WRIGHT as “the dominant
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rule of law.” 35 For example, if the plaintiff's car is damaged in collision with the defendants car which was being
negligently driven, the plaintiff in addition to cost of repair may be entitled to recover reasonable charges for hiring a
car for his use during the period his car was not available for use as it was undergoing repair. 36 But restitution is
seldom, if at all, really possible and the law provides only for notional restitution, i.e. restitution as nearly as may be
by award of compensation. This is specially so when the plaintiff is compensated for non-pecuniary damage such
as pain and suffering. At common law damages are purely compensatory, except where the plaintiff is injured by
the oppressive, arbitrary or unconstitutional action by the executive or the servants of the Government and when
the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the
compensation payable to the plaintiff. In latter two classes of cases exemplary damages may be awarded. 37
It has been seen that in determining liability when causation is in issue, it has to be established, like any issue
relating to past event, on the balance of probabilities and not on the basis of percentage of probability. 38 But when
liability is once established, and the court comes to assessment of damages, “which depend upon its view as to
what will happen in the future or would have happened in the future if something had not happened in the past, the
court must make an estimate as to what are the chances that a particular thing will happen or would have happened
and reflect those chances, whether they are more or less even, in the amount of damages which it awards.” 39 The
High Court of Australia has applied the same test for hypothetical situations of the past (as distinguished from
events alleged to have happened) treating them as analogous to future possibilities. 40 In that case the plaintiff
was employed as a labourer by the defendant in its meatworks. In consequence of the negligence of the defendant
the plaintiff contracted brucellosis leading to a degenerative spinal condition and neurosis rendering him
unemployable for rest of his life. It was also found that independently of the negligence it was ‘likely’ that the plaintiff
would have been suffering from a similar neurotic condition making him unemployable by 1982. The Supreme Court
of Queensland allowed damages to the plaintiff for economic loss and pain and suffering only upto 1982. The High
Court of Australia reversed the judgment of the Supreme Court holding that the plaintiff was entitled to get damages
for economic loss, pain and suffering and cost of care for the rest of his life, subject to this, that those damages had
to be reduced to take account of the chance that factors, unconnected with the defendant's negligence, might have
brought on a similar neurotic condition. 41
Where a wrong has been committed the wrong-doer must suffer from the impossibility of accurately ascertaining the
amount of damages. 42 But the plaintiff must give the best evidence to prove damages. 43
If damage has resulted from two or three causes, as from an act of God as well as a negligent act of a party, then
the award of damages should be apportioned to compensate only the injury caused by the negligent act. 44
In consequence of a railway embankment the flood waters of a river were sent back and flowed over the land of the
plaintiff, doing some injury; had the embankment not been constructed the waters would have flowed a different
way, but would have reached the plaintiff's land, and would have done damage to a lesser amount. It was held that
the measure of damages recoverable by the plaintiff against the railway company was the difference only between
the two amounts. 45
1(D)(ii) Contemptuous, nominal, ordinary and exemplary damages
There are four kinds of damages :(1) contemptuous; (2) nominal; (3) ordinary; and (4) exemplary.
CONTEMPTUOUS DAMAGES are awarded when it is considered that an action should never have been brought.
When the plaintiff has technically a legal claim but there is no moral justification for it or he morally deserved what
the defendant did to him, the Court may award a half penny or a paisa showing its disapproval of the conduct of the
plaintiff.
NOMINAL DAMAGES are awarded where the purpose of the action is merely to establish a right, no substantial
harm or loss having been suffered, for example, in cases of infringement of absolute rights of personal security (e.g.
assault) and property (e.g. bare trespass, invasion of a right of easement, etc.). Nominal damages are so called
because they bear no relation even to the cost and trouble of suing, and the sum awarded is so small that it may be
said to have “no existence in point of quantity,” e.g. one anna, one shilling. But small damages are not necessarily
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nominal damages. 46 An award of nominal damages implies no censure of the plaintiff's conduct in bringing the
suit.
ORDINARY DAMAGES are awarded where it is necessary to compensate the plaintiff fairly for the injury he has in
fact sustained. These are also called compensatory damages. Whatever sum is awarded, whether large or small,
must afford a fair measure of compensation to the plaintiff with reference to the actual harm sustained by him. The
law does not aim at restitution but compensation, and the true test is, what sum would afford, under the
circumstances of the particular case, a fair and reasonable compensation to the party wronged for the injury done to
him, the plaintiff's own estimate being regarded as the maximum limit. The measure of reparation or damages for
any injury should be assessed as nearly as possible at a sum of money which would put the injured party in the
same position as he would have been in if he would not have sustained the injury. 47 For example, where a
surveyor negligently surveyed a property which the plaintiff purchased the proper measure of damages is the
amount of money which will put the plaintiff into as good a position as if the surveying contract had been properly
fulfilled. 48 In other words the proper amount of damages would be the difference between the market value of the
property without the defects and its value with the defects at the date of purchase. 49 When the plaintiff's injury is
aggravated by the conduct and motives of the defendant, e.g. when he has acted in a highhanded manner, wilfully
or maliciously, the damages may be correspondingly increased. But the damages so increased or aggravated are
really compensatory and fall in the class of ordinary damages. 50
EXEMPLARY DAMAGES are awarded not to compensate the plaintiff but to punish the defendant and to deter him
from similar conduct in future. The House of Lords 51 has ruled that exemplary damages can be allowed in three
categories of cases. The first category is oppressive, arbitrary or unconstitutional action of the Government or its
servants. Cases in the second category are those in which the defendant's conduct has been calculated by him to
make a profit for himself which may well exceed the compensation payable to the plaintiff. Third category consists
of cases in which exemplary damages are expressly authorised by statute. It was earlier held that the House of
Lords in 1964 52 restricted the grant of exemplary damages to torts which were recognised at that time as
grounding a claim for exemplary damages and therefore exemplary damages could not be allowed in an action for
public nuisance which is not such a tort. 53 But this view now does not hold the field. The House of Lords itself has
held that the power to award exemplary damages was not limited to cases where it could be shown that the cause
of action had been recognised before 1964 as justifying an award of such damages. 54 Unconstitutional action e.g.
of wrongful arrest by a servant of the Crown by itself authorises grant of exemplary damages and it is not necessary
to show any other aggravating circumstance. 55 The Supreme Court has accepted the principle that oppressive,
arbitrary or unconstitutional action of the Government or its servants calls for exemplary damages and this principle
has been extended to a government statutory authority like the Lucknow Development Authority. 56 In this case
damages for harassment of the plaintiff by the officers of the authority were allowed. 57 But it is not in every case
against the government or its officers that exemplary damages should be allowed for if public servants were
constantly under the fear of threat of being proceeded against in court of law for even slightest of lapse or under
constant fear of exemplary damages being awarded against them, they will develop a defensive attitude which
would not be in the interest of administration. 58 If the power has been exercised bona fide and honestly there
cannot be any occasion for exemplary damages being awarded notwithstanding that unintended injury was caused
to some one. 59 Award of exemplary damages can also be moderate. The conduct of the parties throughout the
proceedings would also be a relevant consideration in assessing exemplary damages. 60 According to the
Supreme Court 61 exemplary damages are also recoverable when harm results from the hazardous or inherently
dangerous nature of the activity in which the defendant is engaged. In such cases, compensation “must be
correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent
effect. The larger and more prosperous the enterprise the greater must be the amount of compensation payable by
it.” 62 But a later decision, 63 without deciding the point finally, expressed doubts as to the correctness of the view
that the damages recoverable must be correlated to the magnitude and capacity of the delinquent industry, called it
“an uncertain province of the law” and observed that it was difficult to foresee any reasonable possibility of
acceptance of this yardstick and, at any rate, there were numerous difficulties in its being accepted internationally.
Exemplary damages in a libel action can also be allowed when the Court is satisfied that the publisher had no
genuine belief in the truth of what he published, but suspected that the words were untrue and deliberately refrained
from taking obvious steps which, if taken, would have turned suspicion into certainty. 64
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In Thompson v. Commissioner of Police, 65 the Court of Appeal laid down certain guidelines for injuries for
assessing damages awardable to members of the public for unlawful conduct against them by the police. Certain
points that emerge from these guidelines are instructive even for subordinate courts in India where assessment is
directly made by the court without the assistance of a jury. These points are : (1) Save in exceptional cases such
damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage
which he has suffered. They are not intended to punish the defendant. (2) Compensatory damages (which have
been described above as ordinary damages) are of two kinds : (a) basic, and (b) aggravated. (3) Aggravated
damages can be awarded when there are aggravating features about the case which would result in the plaintiff not
receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating
features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the
arrest or the prosecution which shows that they had behaved in a highhanded, insulting, malicious or oppressive
manner either in relation to the arrest or imprisonment or in conducting the prosecution. (4) In a case fit for grant of
damages other than basic damages, sums awarded for each category should be separately shown to ensure a
greater transparency in assessing damages. (5) Aggravated damages, though compensatory, do in fact contain a
penal element. (6) When a case is made out for award of exemplary damages e.g., when there has been
oppressive or arbitrary behaviour by police officers, it should be kept in mind that these factors have already been
taken into account while awarding aggravated damages, and exemplary damages should be awarded if, and only if,
it is considered that the compensation awarded by way of basic damages and aggravated damages is in the
circumstances an inadequate punishment for the defendants. (7) Any improper conduct on the part of the plaintiff, if
proved can be taken into account in reducing or even eliminating any award of aggrevated or exemplary damages if
the conduct caused or contributed to the behaviour complained of. The policy of the English Law is, however, not to
encourage award of exemplary damages and exemplary damages will not be allowed where compensatory award
cannot be made e.g. where the claimant has not suffered any material damage. 66
The High Court of Australia is of the view that when the wrongdoer has been substantially punished under the
criminal law and virtually the same conduct is the basis of the civil action, exemplary damages may not be awarded
as its purpose is wholly met by the substantial punishment. 67 It may also be mentioned that in Australia the
limitation laid down in Rookes v. Barnard for grant of exemplary damages have not been accepted and exemplary
damages are available in Australia in cases of conscious wrong doing in contumelious disregard of another's right.”
68 It is interesting to notice that the Law Commission of U.K. in its report on Aggravated, Restitutionary and
Exemplary Damages (no. 247, 1997) has also recommended that exemplary damages may be allowed where the
defendant deliberately and outrageously disregarded the plaintiff's rights. 69
1(D)(iii) General and special damages
General damages are those which the law will imply in every violation of a legal right. They need not be proved by
evidence for they arise by inference of law, even though no actual pecuniary loss has been, or can be, shown.
General damages “are such as the jury may give when the Judge cannot point out any measure by which they are
to be assessed, except the opinion and judgment of a reasonable man.” 70 Whenever the defendant violates any
absolute legal right of the plaintiff general damages to at least a nominal amount will be implied. 71
The expression ‘special damage’ has three different meanings:—

(1) It is employed to denote that damage arising out of the special circumstances of the case which, if properly
pleaded, may be super-added to the general damage which the law implies in every infringement of an
absolute right.
(2) Where no actual and positive right (apart from the damage done) has been disturbed, it is the damage done
that is the wrong; and the expression “special damage,” when used of this damage, denotes the actual and
temporal loss which has, in fact, occurred. Such damage is called variously “express loss,” “particular
damage,” “damage in fact,” “special or particular cause of loss.”
(3) In actions brought for a public nuisance, such as the obstruction of a river or a highway, “special damage”
denotes that actual and particular loss which the plaintiff must allege and prove that he has sustained
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beyond what is sustained by the general public, if his action is to be supported, such particular loss being,
as is obvious, the cause of action. 72
Where special damage is the gist of the plaintiff's case and he fails to prove such damage, he is precluded from
recovering ordinary damages. 73 But where special damage is not the gist of the case he is not precluded from
recovering ordinary damages by reason of his failure to prove the special damage. 74
The aforesaid distinction between General Damages and Special Damages is based on the substantive law
distinction between torts actionable per se and torts not actionable without actual or special damage to the plaintiff.
The expression special damage in the context of pleadings, however, signifies “some special or material item of
plaintiff's loss which is not an obvious consequence of the tort committed by the plaintiff and of which, therefore, the
defendant should be given notice in the pleadings.” 75
1(D)(iv) Prospective and Continuing Damages
Damages resulting from the same cause of action must be recovered at one and the same time as more than one
action will not lie on the same cause of action. If a person is beaten or wounded and if he sues he must sue for all
his damage, past, present and future, certain and contingent. He cannot maintain an action for a broken arm, and
subsequently for a broken rib, though he did not know of it when he commenced his first action. 76
Damages when given are taken to embrace all the injurious consequences of the wrongful act, unknown as well as
known, which may arise hereafter, as well as those which have arisen, so that the right of action is satisfied by one
recovery. “The cause of action is complete, for the whole thing has but one neck, and that neck was cut off by one
act of the defendant,............ It would be most mischievous to say—it would be increasing litigation to say—you shall
not have all you are entitled to in your first action, but you shall be driven to bring a second, a third, or a fourth
action” for the recovery of your damages. 77 Thus recovery of damages in an action of assault and battery is a bar
to an action for a subsequent loss in consequence of a part of the skull coming off subsequently owing to the same
injury. 78 A fresh action cannot be brought unless there is both a new unlawful act and fresh damage. 79
If the same wrongful act violates two distinct rights, successive actions may be brought in respect of each of them.
If a person sustains two injuries from a blow, one to his person, another to his property, as for instance, damage to
a watch, there is no doubt that he can maintain two actions in respect of the one blow. 80 For damage to goods
and injury to the person, although they have been occasioned by one and the same wrongful act, are infringements
of different rights, and give rise to distinct causes for action; and therefore the recovery in an action of
compensation for the damage to the goods is no bar to an action subsequently commenced for the injury to the
person.
An action for malicious prosecution could be brought notwithstanding the recovery of damages in a previous action
for false imprisonment arising out of the same transaction because the causes of action were perfectly distinct and
different. 81
It is necessary to distinguish between a complete cause of action which may yet produce fresh damage in the
future, and a continuous cause of action from which continuous damage steadily flows. Speaking accurately, there
is no such thing as a continuing cause of action; but what is called a continuing cause of action is a cause of action
which arises from the repetition of acts or omissions of the same kind as that for which the action was brought. 82
If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action
continues and goes on de die in diem . If a person is injured in a railway accident, and recovers substantial
damages from the company and subsequently disease of the brain or of the spine develops, which is solely due to
the accident, he cannot bring a second action, or claim further damages in the first action. But where the cause of
action is a continuing one (as an action for a continuing trespass), a fresh cause of action arises every day that
such breach or injury continues; and it is open to the plaintiff to bring fresh action. Where the cause of action is not
a continuing one the damage should be assessed once for all. No fresh action can be brought for any subsequent
damage that may arise from that act. Not only the damage that has accrued, but also such damage, if any, as it is
reasonably certain will occur in the future, should be taken into consideration. 83 The plaintiff should be
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compensated for every prospective loss which would naturally result from the defendant's conduct, but not for
merely problematical damages that may possibly happen, but probably will not.
Where a wrong is not actionable in itself unless it causes damage, it will seem that as the action is only
maintainable in respect of the damage, or not maintainable till the damage is caused, an action will lie every time a
damage accrues from the wrongful act. For example, an action cannot be maintained for mere excavation, but a
cause of action arises when damage to a person's property results therefrom by subsidence. Where there are, in
such a case, successive damages, a fresh cause of action arises in respect of each successive damage. 84
Similarly, if A says to B that C is a swindler, and B refuses to enter into a contract with C, C has a cause of action
against A; if D, who was present and heard it, also refuses to make such a contract, surely another action will lie.
1(D)(v) Damages for mental suffering and psychiatric injury or Nervous Shock
The common law regarding recovery of compensation for pure psychiatric illness also described by the expression
nervous shock was recently reviewed by the House of Lords in White v. Chief Constable of South Yorkshire, 85
where all relevant earlier authorities were considered. The court noticed that this law “is a patchwork quilt of
distinctions which are difficult to justify.” 86 The court, however, declined to reform the law leaving this task to
Parliament. 87
For understanding the law as it now stands after White's case mental suffering has to be divided into different
categories. Mental suffering which follows from foreseeable physical injury is routinely compensated under the head
‘pain and suffering’ while awarding compensation for personal injury. 88 Mental suffering which is not a
concomitant of physical injury is further subdivided into two groups. The first group embraces that mental suffering
which does not amount to a recognisable psychiatric illness even if it consists of extreme grief and the sufferer is
debilitating. The second group consists of that mental suffering which amounts to a recognisable psychiatric illness.
The difference between the two groups is often difficult to draw and is a matter for expert psychiatric evidence.
Mental suffering not following physical injury which does not amount to a recognizable psychiatric illness,
irrespective of its severity or debilitating effect on the sufferer, is not redressable under the common law. 89 Mental
suffering amounting to a recognisable psychiatric illness, when not consequent to personal injury, is redressable in
a limited class of cases for which purpose the sufferers are divided into two categories viz. primary victims and
secondary victims. Primary victims are those who are participants in the event or in other words are in the actual
area of danger of receiving foreseeable personal injury but suffer only a recognizable psychiatric illness and escape
personal injury by chance or good fortune. Primary victims are entitled to receive compensation for mental suffering
which amounts to a recognisable psychiatric illness even if psychiatric illness was not foreseeable. 90 Secondary
victims are those who are not participants in the event or in other words are not in the area of danger of receiving
foreseeable personal injury but yet suffer recognisable psychiatric illness. A plaintiff falling in the category of
secondary victim can be allowed damages if the following conditions known as ‘control mechanism’ are satisfied :
(1) The plaintiff must have close ties of love and affection with the main victim. Such ties may be presumed in some
cases (e.g., spouses, parent and child) but must otherwise be established by evidence. (2) The plaintiff must have
been present at the accident or its immediate aftermath. (3) The psychiatric injury must have been caused by direct
perception of the accident or its immediate aftermath and not upon hearing about it from some one else. 91 A
plaintiff who was an employee of the tort-feasor and suffered psychiatric injury in the course of his employment but
who was not within the range of foreseeable physical injury has to prove the conditions mentioned above like other
secondary victims, for claiming damages and the mere fact of employer and employee relationship with the tort-
feasor cannot enable him to claim as a primary victim. 92 Similar is the position of a plaintiff who was a rescuer and
suffered psychiatric injury by witnessing or participating in the aftermath but who was not within the range of
foreseeable physical injury. Such a plaintiff also cannot be given special treatment simply because he was a
rescuer and has to prove the conditions mentioned above, like any other secondary victim. 93 The effect of the
decision in White's case is to finally replace the test of foreseeability of psychiatric injury to a person of normal
fortitude which started from Hay or (Bourhill) v. Young, 94 by the test of foreseeability of personal injury in case of
primary victims and by the control mechanisms mentioned above in case of secondary victims. These tests which
are reaffirmed in White's case 95 have their origin in Alcock v. Chief Constable of South Yorkshire Police, 96 and
Page v. Smith. 97
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Policy considerations have played an important role in treating pure psychiatric injury different from personal injury
and in limiting the area within which compensation can be claimed for the former. 1
Page v. Smith, 2 is a case where the plaintiff though in a position of a primary victim, being directly involved in the
accident, remained unhurt. The plaintiff, however, suffered ‘myalgic encephalomyelitis’ a psychiatric illness with
which he had earlier suffered but which was then in remission. This illness which the plaintiff suffered as a result of
a motor accident was not foreseeable in a person of ordinary fortitude but as personal injury of physical harm which
the plaintiff did not suffer was foreseeable, the plaintiff succeeded in recovering damages for psychiatric illness
suffered by him.
In Mclovghlin v. O'Brian, 3 the plaintiff's husband and three children were involved in a road accident caused by the
negligence of the defendants. One child was killed and the husband and the two other children were severely
injured. The plaintiff at the time of the accident was two miles away. After being told of the accident, the plaintiff was
taken to the hospital where she saw the injured husband and children and heard about the death of her daughter.
The plaintiff suffered severe and persisting psychiatric illness and was allowed damages for nervous shock. This
case relates to a secondary victim in which the ‘control mechanisms’ noticed above were satisfied. The plaintiff
though not present at the accident was present at the aftermath in the hospital and suffered nervous shock on
seeing her severely injured husband and children in the hospital. Close ties of love and affection were presumed as
the plaintiff was wife and mother of the injured.
Two cases which will be noticed hereinafter and which settle the present law relating to damages for nervous
shock, arose out of a disaster in a Football stadium in Sheffield resulting in the death of 96 spectators and physical
injuries to more than 400. It also scarred many others for life by emotional harm. The disaster occurred by the
negligence of the police in allowing the over crowding of two spectators’ pen. Scenes from the ground were
broadcast live on television from time to time during the course of disaster and later on television as news. News of
the disaster was also broadcast over the radio. In accordance with the guidelines, none of the television broadcasts
depicted the suffering or dying of recognisable individuals. The chief constable admitted liability in respect of those
who died or were injured but denied liability in respect of those who did not receive any physical injury. In Alcock v.
The Chief Constable of the South Yorkshire Police, 4 sixteen persons who did not receive any physical injury but
suffered psychiatric injury claimed damages against the chief constable. The plaintiffs were relatives or friends of
the persons killed or injured in the disaster. Some of the plaintiffs were in the stadium at the time of disaster but not
in the area where disaster occurred. They alleged to have suffered nervous shock caused by seeing or hearing
news of the disaster. One of the plaintiffs, Mr. H, who was present elsewhere in the stadium and whose two
brothers died failed to satisfy condition no (1) of the control mechanism because the court refused to presume
existence of close ties of love and affection between brothers and no evidence was led to prove that they existed in
this case. Two of the plaintiffs Mr. & Mrs. C, whose son died failed to satisfy condition no. 2 because they were not
present in the stadium and saw the scenes on television. One of the plaintiffs Mr. A who identified his brother-in-law
in the mortuary at mid-night failed to satisfy condition no. 3 because he was not in time for the immediate aftermath
of the tragedy. The claims of others were also dismissed on similar grounds. 5 White v. Chief Constable of the
South Yorkshire, 6 is the second relevant case that arose out of the same football stadium disaster. In this case the
claimants were a number of police officers who were on duty at that time at the stadium and who suffered post
traumatic stress disorder, a recognised psychiatric illness, while engaged in the rescue work in the aftermath of the
disaster. The plaintiffs were not within the range of foreseeable physical injury but they claimed that they should be
treated as primary victims merely because they were employees of the tort-feasor and the nervous shock was
suffered in the course of employment. They also claimed special treatment as a primary victim on the ground that
they were rescuers. The plaintiffs’ claims were rejected on the ground that they did not satisfy the test of being a
primary victim as they were not in the range of foreseeable personal injury and the fact that they were employees of
the tort-feasor or the fact that they were rescuers did not enable them to claim as primary victim.
A third case which also arose out of the same football stadium disaster is Hicks v. Chief Constable of the South
Yorkshire Police. 7 In this case the plaintiff made a symbolic claim on behalf of his daughters who died in the
disaster for the distress suffered by them before they died. The claim was negatived holding that fear of impending
death felt by the victim of a fatal injury before that injury is inflicted did not furnish any cause of action.
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But the common law relating to recovery of compensation for pure psychiatric injury can not be taken to have been
finally settled by the decision in White v. Chief Constable of South Yorkshire to cover all situations. This follows
from the decision of the House of Lords in W v. Essex County Council. 8 In this case the plaintiffs, parents of four
young children, were approved as foster carers by the defendant local authority. They had however told the
authority that they were not willing to accept any child who was a known or suspected child abuser. Despite this the
authority placed with them a 15 year old boy who was a child abuser, a fact recorded on the authority's file but
which was not disclosed to the plaintiffs. The boy so put in the care sexually abused the four children of the
plaintiffs. The plaintiffs who claimed to have suffered psychiatric illness after learning of the sexual abuse of their
children sued for damages against the local authority. Their claim was struckout as not maintainable, but the House
of Lords reversed that decision and remitted the case for trial without giving any indication either way as to out-
come of the case holding that the existing case law did not conclusively show that the parents could not be primary
or secondary victims and their claim could not be said to be so certainly or clearly bad that they should be barred
from persuing it to trial.
A claim on account of nervous shock which was caused to a man who came up on a scene of serious accident for
acting as a rescuer was allowed though the persons involved in the accident did not include any near relative. 9
This case has been explained in White's case 10 to be a case where the rescuer was in the zone of foreseeable
personal injury. A mere bystander not in the danger zone cannot recover. 11 Wainwright v. Home Office 12 is
another recent case of the House of Lords relating to nervous shock. A mother and son who were claimants in this
case went to see another son who was in prison on a charge of dealing in drugs. Claimants were strip searched by
the prison authorities before being allowed to see the prisoner. The prison authorities acted in good faith in strip
searching the claimants without any intention to cause any distress to them but in certain respects the prescribed
procedure was not followed therefore, the searches were not protected by statutory authority. When searching the
son, one of the prison officers touched his penis. There was no other physical contact with any of the claimants.
The son had been so affected by the experience that he suffered posttraumatic stress disorder a recognised
psychiatric illness. The mother suffered emotional distress but not any recognised psychiatric illness. The claim of
the son for damages succeeded on the ground that touching his penis by a prison officer amounted to battery and
he was entitled to damages for recognised psychiatric illness which he suffered. The mother's claim for emotional
distress was negatived.
In Yearworth v. North Bristol NHS 13 the plaintiffs were cancer patients. They were treated in a hospital for which
the defendant trust was responsible. The plaintiffs were advised Chemotherapy which was likely to affect their
fertility. Samples of their semen were taken on the assurance that the same would be preserved with due care so
that the sperms may be used in future when needed. But because of negligence in taking reasonable care to
preserve the sperm there was loss of plaintiffs sperm and knowing this they suffered a psychiatric injury namely a
mild or moderate depressive disorder. The court of appeal held that the above facts gave rise to liabilities in
negligence and bailment and the case was recommended for trial.
The courts in India have been more generous in awarding damages for mental suffering. Damages for mental
agony in a case of harassment of the plaintiff by the officers of a public authority were allowed under the Consumer
Protection Act, 1986 by the Supreme Court.14 Damages for mental agony were also allowed to parents when their
child because of negligence of the hospital, where he was taken for treatment suffered severe damage due to
negligence of the hospital staff and was left in a vegetative state. 15 The child was separately allowed damages for
the injury suffered in the same case. Damages for loss of consortium are allowed in fatal accident cases. 16
Damages for mental gony were also allowed under the Consumer Protection Act when a defective car was
delivered to the purchaser who was held entitled to Rs. 40,000 as damages for mental agony in addition to cost of
repair of the ear.17
The Madras High Court has held that the theory that damages at law could not be proved in respect of personal
injuries unless there was some injury which was variously called “bodily” or “physical,” but which necessarily
excluded an injury which was only “mental” is wrong at the present day. The body is controlled by its nervous
system and if by reason of an acute shock to the nervous system the activities of the body are impaired and it is
incapacitated from functioning normally, there is clear “bodily injury” and an insurance company cannot seek to
evade liability for damages for such nervous shock on the strength of a clause in the policy which makes the
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company legally liable to pay in respect of death or “bodily injury” to any person. But it is only shock of such
description which can be measured by direct consequences on bodily activity which can form the basis for an action
in damages. 18
The defendant, by way of practical joke, falsely represented to the plaintiff that her husband had met with a serious
accident whereby both his legs were broken. By reason of this misrepresentation the plaintiff suffered a violent
nervous shock, and was made seriously ill, and her hair was turned white, and her life was for some time in great
danger; and her husband had to incur expenses for medical treatment for her. It was held that the defendant was
liable. 19
The defendants were two private detectives. One of them was designing to inspect certain letters, to which he
believed the plaintiff, a maid-servant, had means of access. He instructed the other defendant, who was his
assistant, to induce the plaintiff to show him the letters, telling him that the plaintiff would be remunerated for this
service. The assistant endeavoured to persuade the plaintiff by false statements and threats, as the result of which
the plaintiff fell ill from a nervous shock. In an action by the plaintiff against the defendants for damages, it was held
that the assistant was acting within the scope of his employment and that both the defendants were liable. 20
The cases of Wilkinson (n. 25) and Janvier (n. 26) noticed above were discussed by the House of Lords in
Wainwright . 21 As these cases related to nervousshock thatis psychiatric illness and not merely of distress, the
court observed that they were not any authority for the view that damages for distress falling short of psychiatric
injury can be recovered if there was intention to cause it. 22 The court of Appeal in Wong v. Parkside Health NHS
Trust 23 was of opinion that there was no tort of intentional harassment which gave a remedy for anything less
than physical or psychiatric injury. In England the Protection of Harassment Act, 1997 enacted by the British
Parliament now provides for damages for anxiety as a result of ‘harassment’, which is defined in section 1(2) as a
‘course of conduct’ amounting to harassment. The Act provides by section 7(3) that ‘a course of conduct’ must
involve conduct on at least two occasions. If these requirements are satisfied the claimant can pursue a civil
remedy for damages for anxiety. 24
In the United States a right to recover for negligent infliction of emotional distress (which is mental or emotional
harm such as fright or anxiety) that is caused by the negligence of another and is not directly brought about by a
physical injury has been recognized but has been limited to those plaintiffs who sustain a physical impact as a
result of defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct. 25 In
Australia save in exceptional circumstances “a person is not liable in negligence for a course of distress, alarm,
fear, annoyance, despondency without any recognised psychiatric illness.” 26
1(D)(vi) Damages in an action for personal injuries
Personal injury may cause (a) non-pecuniary as well as (b) pecuniary loss to the plaintiff. Non-pecuniary loss may
cover the following heads of damage :(i) Pain and suffering; (ii) loss of amenities, and (iii) loss of expectation of life.
Pecuniary loss may cover the following heads : (i) Consequential expenses; (ii) cost of care; and (iii) loss of
earnings. 27 A recent case in which all the above heads of damage except loss of expectation of life figured is Lim
Poh Choo v. Camden and Islington Area Health Authority . 28 The earlier practice was to make a global award
without indicating the sums under different heads. 29 But the current practice is to itemise the award at least
broadly. 30 “But at the end, the Judge should look at the total figure in the round, so as to be able to cure any
overlapping or other source of error.” 31 For, “the separate items, which together constitute a total award of
damages, are inter-related. They are the parts of the whole, which must be fair and reasonable.” 32 The
determination of the quantum may require a test as to what contemporary society would deem to be a fair sum such
as would allow the wrong-doer to hold up his head among his neighbours and say with their approval that he has
done the fair thing; 33 or in other words what a Lok Adalat would award in a similar case. 34 The amount awarded
must be liberal and not niggardly since the law values life and limb in a free society in generous scales. 35 All this
only means that the sum awarded must be fair and reasonable 36 by accepted legal standards 37 and all
elements requiring consideration must be viewed with objective standards. 38
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In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. 39 the heads of damage mentioned above were elaborated.
Damages for pecuniary loss were illustrated to cover : (i ) medical expenses, (ii ) loss of earning of profit upto the
date of trial, (iii ) other material loss. Damages for non-pecuniary loss were said to cover : (i ) mental and physical
shock, pain already suffered or likely to be suffered in future, (ii ) loss of amenities of life which may include a
variety of matters such as inability to walk, run or sit, (iii ) loss of expectation of life if on account of injury normal
longevity of the person concerned is shortened; (iv ) inconvenience hardship, discomfort, disappointment,
frustration and mental stress in life. 40 It is submitted that item (iv ) may already be covered in items (i ) and (ii )
and care must be taken to avoid duplication.
In Sapna v. United India Insurance Company Ltd. 41 the court said in a case of motor accident that the principles
governing a claim petition for assessing the damages in case of bodily injury suffered is that “the Tribunal should
consider all relevant circumstances so as to enable the insured to be put in the same position as if he had not
sustained any injury. The principle of restitution in integram may be applied in a case of this nature.” 42 It is
submitted that the principle of restitution in integram can be applied only to pecuniary loss not for non-pecuniary
loss for the simple reason that the court cannot restore a person to the state of health which he enjoyed before he
suffered a serious injury to his body or brain and the court can award only reasonable compensation the
assessment of which is essentially a guess work and assistance in this respect is taken from comparable awards.
42
Damage to semen of the plaintiff stored by the defendant for future use of the plaintiff does not constitute personal
or bodily injury even though the defendant was negligent in taking care of the semen. 43
1(D)(vi)(a) Non-pecuniary Loss
Pain and suffering consequential to injury inflicted on the plaintiff is a proper head of damage for which the
defendant must compensate the plaintiff. It will include pain attributable to medical treatment for the injury. The
amount of compensation will vary with the intensity of pain and suffering of the plaintiff. So, if the plaintiff after
receiving the injury becomes wholly unconscious or is otherwise unable to experience the pain, he gets no
compensation under this head, however serious the injury may be. Loss of amenities is a separate head of damage
and covers deprivation of ordinary experiences and enjoyment of life. For example, if the plaintiff is deprived of his
ability to play games which he used to play before the injury, he would be entitled to damages under this head. The
important distinction between the heads of pain and suffering and loss of amenities is this that the fact of
unconsciousness deprives the plaintiff of any damages under the former head but not so under the latter. So, a
plaintiff who is totally unconscious due to the injury will not receive any damages under the head pain and suffering
but may yet receive substantial damages under the head loss of amenities. 44 Speaking generally, the Court
awards a lump sum as damages covering both the heads.
Loss of expectation of life is a separate head of damage when a normal expectation of life is shortened as a result
of the injury. 45 Medical evidence is generally required to prove this though caution is necessary before accepting
the evidence of medical men as such evidence is necessarily speculative. Damages under this head are assessed
by putting a money value on the prospective balance of happiness in the years that the injured might have
otherwise lived and having regard to the uncertainties of life and difficulties in assessment very moderate sums are
awarded. 46 This head of damage has been abolished in England by the Administration of Justice Act, 1982. It
may be mentioned here that suffering experienced by the plaintiff from the awareness that his life expectancy has
been shortened will fall under the head “pain and suffering’ and not under the head ‘loss of expectation of life’. 47
Quantification of damages for non-pecuniary damage such as pain and suffering and loss of amenities presents
great difficulties. The Court cannot restore a person to the state of health which he enjoyed before he suffered a
serious injury to his body or brain. The Court can award only reasonable compensation to the plaintiff for his
suffering the assessment of which is essentially a guess work. To bring about a degree of uniformity and
predictability, the courts have evolved certain rules. After referring in this context to the speech of LORD MORRIS
in West (H) & Sons Ltd. v. Shephard 48 and to the decision of a unanimous five member Court of Appeal in Ward
v. James , 49 a Division Bench of the Madhya Pradesh High Court observed: “The task of assessment of damages
for nonpecuniary damage in personal injury actions is a difficult one, for human suffering resulting from any serious
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bodily injury cannot from its very nature be valued in terms of money. But as the injured can be awarded only
monetary compensation, the Courts make an endeavour as best as they can to quantify non-pecuniary damage in
terms of money having regard to the injury and the damage resulting from it. In the process of application, the wide
discretion that the Courts exercise in making awards of compensation, like any other judicial discretion, has
canalized itself into a set of rules. These rules are: (1) The amount of compensation awarded must be reasonable
and must be assessed with moderation; (2) Regard must be had to awards made in comparable cases; and (3) The
sums awarded must to a considerable extent be conventional. It is only by adherence to these self imposed rules
that the Courts can decide like cases in like manner and bring about a measure of predictability of their awards.
These considerations are of great importance if administration of justice in this field is to command the respect of
the community.” 50 Referring to non-economic loss in personal injury actions, the House of Lords in the same
context observed: “Such loss is not susceptible of measurement in money. Any figure at which the assessor of
damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be
even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be
basically a conventional figure derived from experience and from awards in comparable cases .” 51 Similar views
have been expressed by the Supreme Court 52 after referring to the speech of Lord Morris in West (H) and Sons v.
Shephard. 53 Before cases can be used as comparable cases, they must bear a reasonable measure of similarity;
“it is necessary to ensure that in main essentials, the facts of one case must bear comparison with the facts of
another before any comparison between the awards in the respective cases can fairly or profitably be made”. 54
Further, in taking assistance from earlier awards, the Courts should remain conscious of the fall in the value of
currency; indeed, the conventional sums awarded for pain, suffering and loss of amenities should be periodically
reassessed to keep pace with inflation so that they do not lose contact with reality and may serve as guide in other
cases for similar injuries. 55 Guidance on the question of comparable awards has been elaborately furnished in
Nagappa v. Gurudayal Singh. 56 The Court of Appeal in England issues guidelines and revises them from time to
time for award of damages for non-pecuniary loss. 57 The House of Lords, however, in Lim Poh Choo v. Camden
and Islington Area Health Authority 58 observed that an award for pain, suffering and loss of amenities was
dependant on a most general way on the movement of money values and though in times of inflation there will be
tendency for conventional awards to increase, the requirement of law will be met if the sum awarded is a substantial
sum in the context of current money values. As regards an award for loss of expectation of life, there is
comparatively much less scope for increase with the decrease in money value; an increase, if at all, will be justified
“only to prevent the conventional becoming the contemptible”. 59 It has also been held that award of general
damages for pain and suffering is not related to the status of the plaintiff and suffering of a rich man is not more
acute than the pain and suffering of a poor riff-raff. 60
1(D)(vi)(b) Pecuniary Loss
The plaintiff is obviously entitled to the expenses consequential to the injury. This item will include expenses
incurred for taking the plaintiff to a hospital, purchase of medicines or equipment needed for his treatment, fees of
private doctors if consulted and similar other expenses. If the plaintiff will require medical aid in future also,
compensation for that too has to be allowed.
If the plaintiff's injuries are such that he needed nursing and attendance, the expenses required for this are to be
allowed under the head cost of care. Serious injuries sometimes make a person invalid for years and even for life.
The plaintiff in such cases has to be compensated for cost of future care. 61 Compensation for future medical
expenses has to be allowed on the basis of fair guest work aftertaking into account increase in the cost of medical
treatment. 62 It is now settled that the plaintiff can recover the value of nursing and other services gratuitously
rendered to him by wife, parents and other relatives. 63 Damages are awarded in such cases on the principle that
the plaintiff's loss is the existence of the need for those services. As expressed by a Division Bench of the Gujarat
High Court: “The value of such loss for purposes of damages or to put it differently for the purpose of the
ascertainment of his (plaintiff's) loss, is the fair and reasonable cost of supplying those needs. If the provider of
such services gave up paid work or otherwise incurred loss of earnings and also underwent incidental expenses to
look after him, the plaintiff can recover as special damages a specified amount up to the date of the trial which is
equivalent to the loss of such third party. For future attendance and nursing, if need for the same is proved and the
person providing voluntary service agrees to render the same as long as he can continue to do so, the plaintiff can
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recover general damages at a certain years’ purchase on the basis of a datum figure which will be arrived at taking
into account the financial disadvantage of the third party. Even if the provider of services had not been doing paid
work, but only domestic duties in the house, the plaintiff can still recover compensation for all the extra attendance
on him on the basis of proper and reasonable cost of supplying those needs. The compensation in such a case
would also be referable to the past and future financial value of the voluntary services rendered by such devoted
provider and the measure of damages will require to be worked out in the like manner as in the other case.” 64 The
English law on this point as clarified by the House of Lords 65 is that an injured plaintiff can recover the reasonable
value of gratuitous services rendered to him by way of voluntary care by a member of his family or other person but
damages recovered under this head are to be held by the injured plaintiff on trust for the voluntary carer. But when
the voluntary carer is the tortfeasor himself, who later married the plaintiff, there can be no ground in public policy or
otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself has rendered,
a sum of money as damages which the plaintiff must then repay to him. 66 Further, the Court of Appeal 67 has
held that when the gratuitous service was rendered by the wife for helping in running the business after injury to
husband, the financial value thereof cannot be recovered as damages. The case thus restricts the House of Lord's
direction to cases where voluntary services are rendered as gratuitous carer. A gratuitous carer, providing his
services to a relative, when injured which prevents him to provide the services can also in a personal injury action
claim damages in respect of the loss of his ability to look after his relative. 68
Loss of earnings constitutes an important pecuniary loss for which damages are allowed. There are two
fundamental principles in assessing damages for loss of earnings. 69 The first principle is that damages are
compensatory and intended, so far as money can, to put the plaintiff in the same financial position as if the accident
had never happened. 70 The second principle is that it is no concern of the tortfeasor how the injured plaintiff
chooses to dispose of his earnings. 71 As an application of the first principle, damages for loss of earnings are to
be assessed at the net sum that would be available to the plaintiff after discharging his liability for tax, rather than
his gross earnings before deduction of tax. 72 As a further application of the same principle, any unpaid
contributions to a pension scheme (whether made by the employee or the employer) during the period the plaintiff
was not receiving his pay being off duty would not be recoverable as part of his lost earnings provided the non-
payment of these contributions did not affect his pension. 73 He would certainly be entitled to compensation if his
pension was affected because of non-payment of contributions but he would not be entitled to recover both the
contributions and the pension that those contributions would have purchased since that would allow double
recovery. 74 The second principle is illustrated by the rule that it does not lie in the mouth of the tort feasor to argue
that because he has put the plaintiff in a hospital bed for six months he must be given credit for the money that the
plaintiff would have spent on his own amusement during that time if he had been able to do so. 75 There is not
much difficulty in quantifying the loss of earnings up to the date of judgment. Damages for future loss of earnings, if
it is likely to continue for a number of years or for the entire working life of the plaintiff, are assessed by the
multiplicand multiplier method. 76 The multiplicand is selected by estimating yearly loss of income after making
allowance for expenses, if any, including taxes, required for earning the same. 77 The selection of multiplier takes
into account the accelerated receipt of the entire amount in a lump sum and vicissitudes of life. 78 The multiplier is,
therefore, much less than the estimated period of future loss of earnings. When life expectancy of the plaintiff
stands reduced as a consequence of the injury, he is entitled to claim compensation for loss of earnings of the lost
years, i.e. for the years he would have lived had he not suffered the injury. 79 But as the plaintiff is not expected to
live during the lost years, in selecting the multiplicand for this period, allowance must be made for the living
expenses of the plaintiff by deducting the same from the estimated yearly income. 80 This allowance or deduction
will be in addition to the allowance or deduction made for the expenses, if any, required for making yearly income.
When a plaintiff is incapacitated but without affecting his life expectancy and is allowed both, cost of care and loss
of earnings, his living expenses would be deducted from cost of care to avoid duplication. 81 Cost of care is not
allowed for lost years and hence there is no question of duplication when damages for loss of earnings are allowed
for lost years, but as already seen, in assessing these damages, living expenses are deducted as the plaintiff is not
expected to live during these years. 82 Damages are assessed with reference to the value of the currency on the
date of judgment and no notice is taken of future inflation. 83 But the selection of the number of years’ purchase
that is the multiplier is on the basis that the amount allowed as damages will be invested at the interest rate of 4 to 5
per cent and yearly interest supplemented by drawing on capital will yield the annual loss of income for the entire
period for which loss of earnings are allowed and after the end of that period will stand exhausted. If it were
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assumed that the amount allowed as damages will be invested at the current rate of interest, the multiplier would be
much less than what is usually allowed and so will consequently be the damages. The selection of multiplier with
reference to interest rate of 4 to 5 per cent thus covers the contingency of future inflation or fall in money value. 84
The date of trial is the appropriate date on which to determine (a) the actual loss of earnings upto that date and (b)
the future loss of earnings based on a multiplicand and multiplier and ascertained from the facts as they are at that
date 85 Normally the Courts adopt a multiplier of 15 or 16 treating 18 as the maximum. 86 A conventional
multiplier selected with reference to interest rate of 4 to 5 percent is not to be further increased to allow for higher
tax payable on income from large award and it should be assumed that the multiplier so selected will take care of
not only future inflation but future incidence of taxation. 87 Further, a convential multiplier selected by the trial court
should not be lightly interfered with by the appellate court by reference to actuarial calculations. 88 Damages for
loss of earnings are also allowed to incapacitated children who at the time of the accident had not yet started to
earn. 89 Further, damages under this head are not confined to loss of wages but also cover loss resulting from
reduction 90 or deprivation of pension. 91
The statement in the preceding paragraph that multiplier is selected on the hypothesis that damages awarded
would be invested to yield return at the rate of 4 to 5 per cent now does not hold the field in England. The change in
this respect has been brought about because of the advent of index-linked government stock (ILGS). The return of
income and capital on ILGS is fully protected against inflation. Thus the purchaser of 100 of ILGS with a maturity
date of 2020 knows that his investment will then be worth 100 plus x% where x represents the percentage increase
in the retail price index between the date of issue and the date of maturity. Investment in ILGS for this reason yields
comparatively low rate of return which was about 3.5% in 1995. Fixation of multiplier on the basis of ILGS would
thus be higher than that fixed on the basis of interest rate of 4 to 5 per cent and would yield higher damages. The
Law Commission (U.K.) in 1994 recommended fixation of damages by reference to return on ILGS in preference to
interest rate of 4 to 5 per cent. The recommendation was accepted by the House of Lords in Wells v. Wells 92
where it was held that investment in ILGS is most accurate way of calculating the present value of the loss to which
the plaintiff will actually suffer in real terms. In that case taking the gross return on such investment at 3.5% and
after making allowance for tax on income, the House of Lords regarded 3% as the appropriate return and damages
for anticipated future losses and expenses were calculated on that basis. This case also holds that actuarial tables
should now be regarded as the starting point for selecting multiplier. 93 In the absence of availability of ILGS and
actuarial tables this decision of the House of Lords is not likely to affect any change in India.
In assessing damages for loss of earning capacity, that is to say, damages which are intended to compensate the
plaintiff for his handicap in the labour market resulting from his injury, the award is necessarily speculative but there
is no such thing as a conventional approach. 94 In each case the court has to do its best to assess the plaintiff's
handicap as an existing disability, by reference to what may happen in the future. 95
As the principle behind the award of damages for loss of earnings is restitutio in integram, the Court has to make
deductions in respect of monetary benefits coming to the deceased because of the injury suffered by him. Thus,
social security benefits such as unemployment benefit or attendance and mobility allowances payable under a
statute to an invalid plaintiff will be taken into account in mitigation of damages. 96 But fruits of private insurance
and private benevolence are not to be deducted. 97 Exgratia payments to victims by tortfeasors are deductible and
private benevolence in this context is limited to payments received from third parties. 1 Similarly proceeds of
personal accident insurance policy taken out by employers for benefit of employees, employee making no
contribution to policy or premium, are also deductible. 2 It is also settled that invalid pension received from the
employer under a contributory pension scheme will not be taken into account for assessing loss of wages and will
be considered only in assessing loss of pension. 3 Thus if the injured person receives a recurring annual sum as
incapacity pension, the recurring annual payments receivable till the age when he would have retired are not taken
into account either for calculating loss of wages or retirement pension. 4 The annual sum payable as incapacity
pension after the age of retirement will be taken into account in reducing the loss of retirement pension. 5 If in
addition to recurring annual sum, the person receives a lump sum as part of incapacity pension, this lump sum is
also not taken into account in calculating loss of wages upto the date of retirement but an appropriate portion of this
lump sum, appropriate for the post retirement period, will be taken into account for calculating loss of retirement
pension. 6 The reasoning why incapacity pension is not taken into account for calculating loss of wages is that
pension and wages constitute “two quite different equation” and comparison has to be made of “like with like”. 7
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But sickness benefits contractually payable to the plaintiff by the employer are deductible even though the employer
had insured himself against this liability for such payments are designed to compensate the plaintiff for loss or
dimunition of wages, and are of the same nature as wages and are not fruits of private insurance. 8 Ex gratia
payments made by the employer should also be taken into account for reducing damages when the claim is against
the employer. 9 Redundancy payment made by the employer, when the employee is made redundant, is also
deductible. 10 Ex gratia employment given to the victim by his employer, which can be terminated at any time,
cannot be taken into account in assessing compensation against the tortfeasor when he is not the employer of the
plaintiff. 11
1(D)(vi)(c) Interest
In England as also in India, interest is allowed on damages awarded. In England interest on non-pecuniary loss is
allowed at the conventional rate of 2% from the date of writ to the date of judgment. 12 Interest is also allowed on
pretrial pecuniary loss but no interest is allowed on future pecuniary loss. 13 In India, the practice is to allow
interest from the date of suit or claim application. 14 In Chameli Wati v. Delhi Municipal Corporation 15 which was
a fatal accident case, interest was allowed on the total award, as finally increased in appeal, from the date of the
claim application at the rate of 12%. The current practice in India seems to be to allow interest at the rate of 9 to
12% from the date of application on the amount of compensation finally awarded. 16 But the Karnataka High Court
prefers a rate of 6% on the amount awarded from the date of the claim application. 17
1(D)(vi)(d) Illustrations
In Lim Poh Choo v. Camden and Islington Area Health Authority 18 the plaintiff who at the relevant time was aged
36, was a senior psychiatric Registrar. In 1973, she was admitted to a hospital controlled by the defendant for a
minor operation. Due to the negligence of one of the hospital staff, the plaintiff suffered cardiac arrest and
irreparable brain damage. She went to Penang where her mother was but eventually returned to England as there
was in Penang no proper institution where she could be taken care of. The plaintiff was reduced to a helpless
invalid for her life. She was so intellectually impaired that she did not appreciate what had happened to her. But her
expectation of life which was estimated to be 37 years had not been reduced. Her condition was such that there
was a total loss of her earning capacity and she needed total care for the rest of her life. The award of damages as
modified by the House of Lords was as under : Pain and suffering, loss of amenities 20,000; Out of pocket
expenses- 3,596; Cost of care to the date of judgment of the House (21st June, 1979)- 22,689.64; Loss of earning
to the date of judgment at trial (7th December, 1977)- 14,213; Cost of future care, i.e. from the date of judgment of
the House by applying a multiplier of 12- 76,800; loss of future earnings from the date of judgment at the trial by
applying a multiplier of 14- 84,000; loss of pension- 8,000; total 2,29,298.64.
In R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd ., 19 the plaintiff an advocate aged 50 suffered 100%
disability and parplegia below the waist. He could move only in a wheel chair. He was allowed for pecuniary loss
damages for cost of medical treatment present and future, cost of care present and future and loss of earnings
present and future. In addition to damages for pecuniary loss, the plaintiff was allowed Rs. 1,50,000 for pain and
suffering and the same amount for loss of amenities, i.e. , in all Rs. 3,00,000 for non-pecuniary loss.
In Ashwinikumar Misra v. P. Muniram Babu, 20 the appellant who was 23 years of age and was earning about Rs.
2,000 per month was rendered permanently disabled and paraplegic on account of injury received in a Motor
accident. He was allowed as damages Rs. 94,037 for expenses incurred on medical care, Rs. 20,000/- for special
diet and expenses for attendant during treatment. In addition he was allowed Rs. 3,84,000 (calculated by applying a
multiplier of 16 to his yearly income of 24,000) “on account of loss of expectation of life besides disappointment
frustration and mental stress particularly when he has to keep a permanent attendant to look after him in his rest of
life.” Putting it in convential terms Rs. 94037 + Rs. 20,000 i.e. in all Rs. 1,14,037 were allowed for expenses
consequential to injury and Rs. 3,84,000 were allowed for loss of earning and cost of care as also for non pecuniary
damage i.e. pain and suffering, and loss of expectation of life.
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Divisional Controller KSRTC v. Mahadeva Shetty 21 is another case of paraplegia. The claimant was a mason. The
total compensation allowed was Rs. 4.50 lakhs. Out of this Rs. 204000 was allowed for loss of income. The rest
was allowed for pain and suffering, loss of prospect of marriage, medical expenses etc.
Croke (a minor) v. Wiseman 22 was a case where the plaintiff, a boy aged 21 months, was admitted in 1973 in a
hospital for treatment. Due to negligence in the treatment, the plaintiff suffered cardio-respiratory arrest, resulting in
irreparable brain damage. His brain ceased to function; he became blind, and was unable to speak and was
paralysed in all four limbs. The plaintiff's mother gave up full time career as a teacher to care for him. His life
expectancy was reduced to 40 years. The award as modified by the Court of Appeal was as follows: Pain, suffering
and loss of amenities- 35,000; future cost of nursing care- 1,19,000 (annual cost of parental nursing was valued at
2,500 and annual cost of extra nursing was valued at 6,000, i.e. total annual cost of nursing was assessed at 8,500
per annum to which a multiplier of 14 was applied); and loss of further earnings 25,000 (annual loss of earnings was
assessed at 5,000, and a multiplier of 5 was applied on the reasoning that the plaintiff was not expected to start
earning before 18, and his maximum working life, taking 40 as his reduced life expectancy, would have lasted only
for 22 years, and he was receiving a lump sum more than 11 years before earnings would commence). Plaintiff was
not allowed damages for loss of earnings of lost years on the reasoning as held in Picket v. British Rail Engineering
Ltd. , 23 that in a case of child of tender years, the amount of earnings that he might have lost in lost years was so
speculative and unpredictable that its assessment was not possible.
Joyce v. Yeomans 24 was also a case of a boy aged 10, who was injured in a car accident. He sustained severe
injuries including a head injury. Not long afterwards, he began having epileptic fits. The Court of Appeal allowed him
6,000 with interest for pain and suffering and loss of amenities and 7,500 without interest for future loss of earning
capacity. The amount allowed for loss of earning capacity was not assessed on multiplicand/multiplier basis as in
the circumstances there were many imponderables.
Liffen v. Watson 25 illustrates the principle that private benevolence in any form not coming from the tort-feasor is
not to be taken into account in mitigation of damages. In this case, as a result of personal injuries a domestic
servant who was receiving weekly wages and free board and lodging could not continue in service and went to live
with her father to whom she made no payment for board and lodging. In a suit for damages she was held entitled to
claim damages, not only for loss of wages, but also for loss of board and lodging.
In Pushpa Thakur v. Union of India 26 which was decided by the Supreme Court by a brief order, the appellant, an
unmarried girl of 23, suffered fracture of both legs, resulting in amputation of right leg in a road accident. The
Supreme Court made a global award of Rs. 1,00,000 with 12% interest from the date of its order. The principle of
assessment in such cases was laid down recently in Hughes v. Mckeown . 27 In a claim by a female plaintiff who
sustained a diminution of both her prospects of marriage and her future earnings, the correct approach is to
consider the matter on the basis of the plaintiff's economic loss, disregarding the intervention of marriage, since
during the period when a woman is married and child bearing, she is still working, albeit in a different capacity, and
is being supported by her husband, which is an economic gain. The simplest way of assessing the plaintiff's loss of
future earnings is for the Court to fix the multiplier without regard to the possibility that as a result of marriage and
child bearing, the plaintiff would have ceased to work for a time. Similarly, damages for pain and suffering and loss
of amenities will include an amount for loss of the comfort and companionship of marriage and will disregard the
economic aspect of loss of marriage prospects. 28
In Shashendra Lahiri v. Unicef, 29 a 17 year old boy a student of B.Com, met with an accident while driving a
motor cycle in which he suffered multiple injuries resulting in shortening of his leg by three inches. The boy
continued his studies after the accident and was found to be a good student. He was awarded Rs. 4 lakhs as
compensation by the Supreme Court in addition to Rs. 58,000 awarded by the High Court. In another case 30 a
student of M.L. course aged 25 suffered dislocation of right hip, loss of 60% vision and 50% hearing in the left ear
and had to go to New York for treatment. The Supreme Court awarded him Rs. 3 lakhs as compensation in addition
to Rs, 1,76,000 allowed by the High Court. In yet another case 31 a boy of 15 years suffered permanent injury to
his urethra requiring repeated dilatations throughout his life. His sexual life was also to be affected. He was
awarded Rs. 1 lakh for pain shock and suffering and on other heads Rs. 50,000.
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In the case of Lado v. Uttar Pradesh Electricity Board 32 the petitioner Lado, a village woman who was 30 years of
age and was earning R s. 6 00 p.m. from two places lost her right arm due to electrocution from the high voltage
cable left hanging by the Electricity Board's officials. In a petition directly to the Supreme Court under Art. 32 of the
Constitution, she was allowed R s. 7 5,000 as compensation. The court observed that she would have got this sum
from a Lok Adalat.
Minu B. Mehta v. Balkrishna Ramchandra Nayan 33 was a case in which the respondent, a Surgeon, aged 63, at
the time of the award, was injured in a car accident. The respondent had a nursing home and consulting rooms. As
a result of the injuries suffered in the accident, the movement of the right elbow of the respondent got restricted
affecting his operative work. The Tribunal assessed loss of earnings of R s. 7 3,779 for 4 years before the award on
a comparison of incometax returns of four years prior to and four years after the accident. The Tribunal estimated
future longevity of 7 years and assessed future loss of income for 7 years at Rs. 1,26,000 and deducted 50% for
lump sum payment and thus allowed R s. 6 3,000 for future loss of earnings. The Tribunal also allowed Rs. 5,000
for discomfort and inconvenience i.e. pain and suffering and loss of amenities. The award made by the Tribunal was
upheld in appeal by the High Court and the Supreme Court.
Oriental Insurance Company v. Ram Prasad Verma 34 was a case in which the claimant met with a motor accident
as a result of which both his legs had to be amputated and he suffered 100% disability. The claimant was aged 55
years and his annual income was Rs. 2,27,471/- and tax deducted at source was Rs. 30,748/-. A multiplier of eight
was adopted. Having regard to items such as pain and suffering loss of amenities of life and cost of care and need
for an attendant the tribunal allowed Rs. 19,63,000/- as total damages with interest at 12% from the date of filing of
the petition. The High Court upheld the awards but reduced the interest from 12% to 9%. The Supreme Court in
appeal declined to interfere.
1(D)(via) Damages for Unwanted pregnancy resulting from medical negligence
The question as to what damages are recoverable in case of unwanted pregnancy resulting from medical
negligence in sterilisation operation has been considered in different countries. It is generally accepted that the
mother in such cases would be entitled to recover general and special damages for personal injury in suffering
unwanted pregnancy. But there appears to be a sharp divergence of opinion on the question whether the parents
would be entitled to recover damages for economic loss in rearing up the child. 35
Cases on this point from different jurisdictions were considered by the House of Lords in McFarlane v. Tayside
Health Board. 36 In this case one Mr. Mcfarlane underwent a vasectomy operation. Six months later he was told by
the consulting surgeon that his sperm count were negative and he could dispense with contraceptive precautions
during intercourse. Mr. and Mrs. Mcfarlane who had four children relied upon this advice but subsequently Mrs.
Mcfarlane became pregnant and gave birth to a healthy daughter. In proceedings brought by Mr. And Mrs.
Mcfarlane seeking damages against the Health Board, the House of Lords held that if there was negligence the
mother would be entitled by way of general damages to be compensated for the pain, discomfort and
inconvenience of the unwanted pregnancy and birth and she would also be entitled to special damages associated
with both—extra medical expenses, clothes for herself and equipment on the birth of the baby, as also
compensation for loss of earnings due to pregnancy and birth. 37 It was however held that on principle it was not
fair, just or reasonable to impose on the doctor or his employer the liability for damages for the economic loss of
bringing up a healthy child which must be held to fall outside the duty of care which was owed to the parents. 38 In
holding so the House of Lords took into account that in return for the love and expenses in caring, a healthy child
also gives pleasure and affection to the parents and the value attached to these benefits is incalculable. McFarlane
was reconsidered by the House of Lords in Rees v. Darlington Health Authority 39 and was reaffirmed by a
majority of 4 against 3. It was also held that it will not make any difference that the mother was disabled and this
fact was known to the doctor who performed the sterilisation operation for the reason that the disability was
unconnected with the doctor's negligence and disabilities are generally taken care of by public provisions made by
the State in U.K. It was further held in a little variation of Mc Farlane that parent of a child born following a
negligently performed vasectomy or sterilisation or negligent advice on the effect of such a procedure was the
victim of a legal wrong and should in all cases be awarded a conventional sum of 15,000 to mark the injury and
loss. This would be in addition to the award for general and special damages for pregnancy and birth allowed in Mc
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Farlane . Even after Mc Farlane it was held by the court of Appeal 40 that where a child's significant disabilities
flowed foreseeably from the unwanted conception resulting from a negligently performed sterilisation operation,
damages were recoverable for the cost of providing for the child's special needs and care attributable to those
disabilities but not for the ordinary costs of upbringing. This case was distinguished in Rees and not overruled.
The same question came up before the Supreme Court in State of Haryana v. Santra. 41 In this case the plaintiff a
poor labourer woman had undergone a sterilization operation in a Government hospital under the ‘sterilisation
scheme’ launched by the Government of Haryana. At that time she had seven children. She was issued a certificate
of total sterilisation operation and was assured that she would not conceive a child in future. But due to negligence
of the doctor conducting the operation the sterilisation was not complete as only the right fallopian tube was
operated upon and the left fallopian tube was left untouched. As a result the plaintiff conceived and gave birth to a
female child inspite of the operation. In the suit she claimed as damages the expenses needed for bringing up the
unwanted child. The Supreme Court noticed that there was no unanimity on this point in different countries but
upheld the plaintiff's claim both against the doctor and the Government for damages for rearing up the child upto
the age of puberty. In holding so the court observed :
“Ours is a developing country where majority of the people live below the poverty line. On account of the ever-
increasing population, the country is almost at the saturation point so far as its resources are concerned. The
principles on the basis of which damages have not been allowed on account of failed sterilisation operation in
other countries either on account of public policy or on account of pleasure in having a child being offset
against the claim for damages cannot be strictly applied to the Indian conditions so far as poor families are
concerned. The public policy here professed by the Government is to control the population and that is why
various programmes have been launched to implement the State-sponsored family planning programmes and
policies. Damages for the birth of an unwanted child may not be of any value for those who are already living in
affluent conditions but those who live below the poverty line or who belong to the labour class who earn their
livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on
account of medical negligence.” 42
The Allahabad and Madhya Pradesh High Courts in cases where the wife gave birth to a child after the vasectomy
operation of the husband in a Governmental hospital which failed because of negligence of the surgeon have in writ
petitions also allowed damages to the wife for loss of dignity (as she may be accused of being unfaithful) and
violation of her fundamental right under Article 21 to enjoy life with dignity. 43
State of Haryana v. Santra 44 has been distinguished in State of Punjab v. Shivram 45 on the ground that in
Santra the woman was assured that she would not conceive a child in future. The case holds that damages for
unwanted pregnancy can be allowed (para 25) only when there is negligence in performing the surgery by applying
Bolam test 46 or when there is 100% assurance by the doctor of exclusion of pregnancy after surgery (para 17). It
is pointed out that no prevalent method of sterilization assures 100% success. The failure rate is 3% to 7% (para
30). The case further holds that cause of action is not birth of children but negligence. If having known that there is
failure of sterilization and there is pregnancy which can be terminated under the Medical Termination of Pregnancy
Act 1971, the couple opts for bearing the child it ceases to be unwanted pregnancy and they cannot claim
compensation for upbringing and maintaining the child.
1(D)(vii) Injury to Property
If a chattel be lost or destroyed by a wrongful act of the defendant, the measure of damages is the value of the
chattel, but if the chattel be only injured, then the depreciation in its value is the measure, with an extra allowance
for the loss of the use of the chattel while it is being repaired or replaced. The measure of damages where goods
shipped are lost by fire would be the market value of the goods when and where the goods were damaged less the
proceeds of the sale of the damaged goods, and in addition any freight, insurance, premia, and other incidental
expenditure which may have been lost. 47 A person to whom a wrong is done is entitled to full compensation for
restoring the thing damaged to its original condition. This applies equally to a private person as to a Corporation or
trustee. If this is called restitution, a Corporation as well as a private person would be entitled to it, but if by
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restitution is meant complete reconstruction irrespective of the damage done, then neither a private person nor a
Corporation or a trustee is entitled to complete reconstruction irrespective of the damage done. 48
Where one person, A, who is entitled to possession of goods, is deprived of such possession by tortious conduct of
another person B, whether such conduct consists in conversion or negligence, the proper measure in law of the
damages recoverable by A from B is the full market value of the goods at the time when and the place where
possession of them should have been given. 49 For this purpose it is irrelevent whether A has the general property
in the goods as the outright owner of them, or only a special property in them as pledgee, or only possession or a
right to possession of them as bailee. 50 Further, the circumstance that if A recovers the full market value of the
goods from B, he may be liable to account for the whole or part of what he has recovered to a third party C is also
irrelevant as being res inter alios acta . 51 It has further been held that when a plaintiff is permanently deprived of
his goods by deceit of the defendant, the measure of damages is the same as in conversion viz . the full market
value of the goods and not the cost of replacing or producing them which may be less than the market value. 52
In action for injury to a horse which is sent to a farrier to be cured, the proper measure of damages is the keep of
the horse at the farrier's, the farrier's bill, and the loss in value of the horse, but the plaintiff ought not to be allowed
also for the hire of another horse during the period of inability of the first horse. 53 The weight of authority,
however, now seems to be that the plaintiff is entitled to damages also for loss of use of his chattel 54 even though
he uses the chattel such as a motor-car for pleasure only and not for profit. 55 So now if the plaintiff's car is
damaged by the defendant's negligence or other wrongful act, the plaintiff in addition to cost of repair will be entitled
to recover reasonable charges for hiring a car for his use during the period his car was not available. 56
The plaintiff, relying on a valuation of freehold property by the defendants, advanced money on mortgage to the
owner of the property. The valuation was excessive, it having been made without the skill and care which the
defendants owed to the plaintiff, and the plaintiff suffered loss owing to the default of the mortgagor. It was held that
the plaintiff's damages were not limited to the difference between the amount of the valuation and the true value of
the property at the time of the valuation, but that he was entitled to recover the actual loss suffered by him as a
result of his lending the money, including the difference between the sum advanced by him and that received by
him when, having entered into possession of the property, he sold it; the amount of interest which the mortgagor
had failed to pay; the cost of insuring the property and of maintaining it in repair; while it was in the plaintiff's
possession; legal charges during that period; the expenses of abortive attempts to sell the property; estate agents’
commission and the eventual sale of the property and legal charges in connection with the sale. 57 But the House
of Lords has held that a person who lent money by relying on a negligent valuation and suffered loss of interest at
the default rate of 45% mentioned in the contract was not entitled to recover from the valuer as damages interest at
the above rate but only interest at the normal rate of 12%. 58
The basic principle governing the measure of damages for damage to property in tort as well as in contract is
restitutio in integrum . But the application of this principle works differently in different circumstances. Whether the
assessment of damages should be on the basis of diminution in value or the cost of reinstatement or some other
basis depends on the facts of each case. The question to be considered is: what is reasonable and fair under the
circumstances to put the plaintiff, so far as money can, in the same position as he would have held had the tort not
occurred. 59 So when income earning premises such as a factory are seriously damaged or destroyed beyond
repair, the plaintiff may be awarded the cost of reconstruction or acquisition of new premises, including cost of
replacing the destroyed machinery by new machinery, if that is the only reasonable way for the plaintiff to carry on
the business and to mitigate the loss of profit. 60 It would then not be open for the defendant to complain that the
plaintiff is being given new for old. 61
1(E) Interim Damages
The court has no inherent jurisdiction to order interim payment of damages pending the final disposal of a suit for it
is not a matter of procedure but of sub-stantive right. 62 Absence of such a power in a court resulted in hardship in
many cases. In England on the recommendation of the Winn Committee on personal injuries litigation, provision
was made in section 20 of the Administration of Justice Act, 1969 for making of rules to enable a court to make an
order of interim payment. Rules 9 to 18 of Order 29 of the Supreme Court Rules made in that behalf regulate the
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grant of interim payment. Briefly stated, the rules provide that a court may order the defendant to make an interim
payment of such an amount as it thinks just, not exceeding a reasonable proportion of the damages which are likely
to be recovered finally by the plaintiff. Interim payment can only be ordered when (i) the defendant has admitted
liability, or (ii) the plaintiff has obtained judgment against the defendant for damages to be assessed, or (iii) if the
action proceeded to trial, the plaintiff would obtain judgment for substantial damages. Further, no order for interim
payment can be made if it appears to the court that the defendant is not (i) a person who is insured in respect of
plaintiff's claim, (ii) a public authority, or (iii) a person whose means and resources are such as to enable him to
make interim payment. In India, there are no corresponding statute or statutory rules. The High Court of Madhya
Pradesh has, however, held that interim payment can be ordered in a suit on the analogy of the English Rules
which can be applied as principles of justice, equity and good conscience. 63 It was on this basis that the High
Court allowed interim payment of Rs. 250 crores in a suit on behalf of Bhopal gas victims and their dependants
against the Union Carbide Corporation. 64
1(F) Compensation Under Section 357, Cr.P.C.
Section 357(1) of the Code of Criminal Procedure permits a court, while sentencing an accused to fine, to award
compensation out of the fine to any person for loss or injury caused by the offence when compensation is, in the
opinion of the court, recoverable by such person in a civil suit. Section 357(3) allows a court while sentencing an
accused, when fine does not form part of the sentence, to order the accused person to pay by way of
compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by
reason of the act for which the accused person has been sentenced. The Supreme Court adverted to section
357(3) in Harikrishan and State of Haryana v. Sukhbir Singh 65 and said that all courts should liberally exercise the
power to award reasonable compensation. The quantum of compensation may be determined by taking into
account the nature of crime, the justness of claim by the victim and the ability of the accused to pay. As provided in
section 357(5), at the time of awarding compensation in a subsequent civil suit, the Court shall take into account
any sum paid or recovered as compensation under the section. In Sukhbir Singh's case 66 the victim Joginder lost
his power of speech permanently due to the injury suffered by him and he was awarded Rs. 50,000 as
compensation. More recently in Venkatesh v. Tamil Nadu 67 where the accused was convicted for homicide under
section 304 Part II of the Penal Code and sentenced to rigorous imprisonment for five years and to pay a fine of Rs.
3,000 the Supreme Court reduced the sentence of imprisonment to the period already undergone and enhanced
the fine by Rs. 100,000 and directed that the amount of fine so enhanced be paid as compensation to the widow
and minor daughter of the deceased. Again in Dr. Jacob George v. State of Kerala 68 a homeopath conducted
abortion and caused the death of the woman. He was convicted under section 304 of the Penal Code and
sentenced to four years rigorous imprisonment and to a fine of Rs. 5,000. The Supreme Court in appeal reduced
the sentence of imprisonment to two months, the period already undergone, and enhanced the fine to Rs. one lac.
The amount of fine was directed under S. 314 Cr.P.C. to be deposited in a bank as compensation for benefit of a
minor son of the woman. It has also been held by the Supreme Court that if the fine, which a magistrate can
impose, is inadequate to compensate the complainant, he can instead of imposing a sentence of fine directly
proceed to award compensation under section 357(3), which fixes no limit as to the amount which can be awarded.
Thus a first-class magistrate, who could impose only a fine of Rs. 5000 under section 29 of the Crpc, was held
entitled to award Rs. 83,000 as compensation to the complainant for an offence under section 138 of the Negotiable
Instruments Act.69 The power of the court to award compensation to victims under section 357 is not ancillary to
other sentences but is in addition thereto and is a recompensatory measure to rehabilitate to some extent the
beleagured victims of the crime, a step forward in our criminal justice system. 70 The accused has to be heard
before directing payment of compensation under section 357(3) although such a requirement is not mentioned in
the section. 71 In Manish Jalan v. State of Karnataka 72 the appellant was convicted under section 304 -A of the
Indian Penal Code and section 279 and sentenced to one year imprisonment and a fine of Rs. 10,000 in all for
rashly and negligently driving a tanker and causing death of a person who was driving a scooter. In appeal the
Supreme Court affirmed the conviction and sentence of fine but reduced the sentence of imprisonment to period
already undergone and directed payment of Rs. 1,00,000 as compensation to the mother of the victim under section
357 of the Code of Criminal Procedure. The court reiterated that the provision for compensation under section 357
is aimed at serving the social purpose and the power under it should be liberally exercised. But the amount of
compensation awarded must be reasonable and not arbitrary and should be lesser than the amount which a civil
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court would grant in the circumstances.73 A civil court while deciding a suit for damages for an injury in respect of
which compensation has been awarded under section 357 of the Code of Criminal Procedure is bound to take into
account any sum paid or recovered as compensation under this section.74
1 (F1) Compensation to rape victims
In Delhi Domestic Working Women's Forum v. Union of India 75 the Supreme Court directed the setting up of
Criminal Inquiries Compensation Board to award compensation to a rape victim whether or not a conviction has
taken place. In awarding compensation the Board has to take into account pain, suffering and shock as well as loss
of earnings due to pregnancy and the expenses of the child if this occurred as a resuslt of the rape. The court trying
an accused in a rape case has jurisdiction to award compensation to the victim of the rape under section 357
Cr.P.C. after conviction. In one case,76 however, the Supreme Court allowed interim compensation of Rs.1,000
per month to the rape victim from the accused during the pendency of the criminal case. This order was passed
under the Court's inherent power under Article 142 of the Constitution to do complete justice between the parties.
1(G) Provisional Award
The lacuna in the powers of the Court to award proper damages in actions for personal injuries, when there was a
known risk of a further development either by way of a new disease or a serious deterioration of a presently existing
and detected condition, was cured in England by empowering the court (a) to make provisional award by assessing
damages on the assumption that the injured person will not develop the disease or suffer the deterioration in his
condition, and (b) to award further damages at a future date if he develops the disease or suffers the deterioration.
This reform was brought about by section 32A of the Supreme Court Act, 1981 and the rules of the Supreme Court
(0.37) made under that section. 77 There is no corresponding statutory alteration of law in India and it is yet to be
seen whether the principles of the aforesaid statutory reform in England can be applied in India as principles of
equity, justice and good conscience. 78 In Nagappa v. Gurudayal Singh 79 the court did not advert to this aspect
of the matter and held that final award cannot be reviewed and no further award can be passed to compensate for
medical expenses incurred after the final award and such expenses can only be taken into account on the basis of
guess work at the time of final award.
In England the court has also the discretion under section 33 of the Limitation Act, 1980 to extend period of
limitation in personal injury cases and this discretion appears to have been quite liberally applied. For example if
when the injury such as sexual abuse was caused the defendant was a pauper and the claimant did not sue him as
she would have recovered nothing but if later say after a few years the defendant received a lottery or gained
enough property and the claimant brought the suit for damages the court may be willing to extend the period of
limitation. 80
1(H) Damages in actions of contract and of tort
The measure of damages, or test by which the amount of damages is to be ascertained is, in general, the same
both in contract and in tort, with these distinctions:—
(1) The intention with which a contract is broken is perfectly immaterial : whereas the intention with which a tort
is committed may fairly be considered by the Court in assessing the amount of damages. In actions of
contract, evidence of malicious motive is not admissible, in those of tort, it is. Thus, in an action for
throwing poisoned barley upon the plaintiff's premises in order to poison his poultry, the Court took into
account the malicious intention of the defendant in awarding damages. 81
(2) In cases of contract, damages are only a compensation. In cases of tort to the property, they are generally
the same. Injuries to property are only visited with damages proportioned in the actual pecuniary loss
sustained, where damage, pecuniary or estimable in money, is the gist of action. But where absolute rights
are infringed, a plaintiff is awarded nominal damages not because he has lost anything but because his
rights are absolute. Where the injury is to the person, or feelings, and the facts disclose fraud, malice,
violence, cruelty, or insult the injury is aggravated and the plaintiff gets aggravated damages 82 but they
bear no proportion to the actual loss sustained by the plaintiff. Exemplary damages are also allowed in a
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tort action against the State or its officers when the action complained of is oppressive, arbitrary or
unconstitutional and also against a defendant who by committing the tort makes profit which may exceed
the normal compensation payable by him. 83 But exemplary damages cannot be recovered for a breach of
contract, except in an action for breach of promise of marriage.
2. INJUNCTION
An injunction is an order of a Court restraining the commission, repetition, or continuance, of a wrongful act of the
defendant. To entitle a party to an injunction he must prove either damage or apprehended damage. The
apprehended damage must involve imminent danger of a substantial kind or injury that will be irreparable. 84
Preventive injunction can be granted only when the defendant has violated or is going to violate some legal or
equitable right of the plaintiff and not merely on the ground that what the defendant is threatening to do is
unconscionable for him to do. 85 In certain cases the court may have to do a balancing between two rights, e.g. a
right to privacy and a right to freedom of expression, before deciding to issue the injunction. 86
An injunction may be granted to prevent waste, trespass, or the continuance of nuisance to dwelling or business
houses, to right of support, to right of way, to highways, to ferries, to markets, etc.; or the infringement of patent
rights, copyrights and trademarks; or the publication of trade secrets; or the wrongful sale or detention of a chattel,
or the publication of a libel or the uttering of a slander; or the disclosure of confidential communications, papers,
secrets, etc.; or the publication of manuscripts, letters, and other unpublished matter.
The right to an injunction is governed in India by the Specific Relief Act.87 Grant of temporary injunction is
governed by the Code of Civil Procedure. 88
3. SPECIFIC RESTITUTION
The third kind of remedy is the specific restitution of property. Thus a person who is wrongfully dispossessed of
immovable property, 89 or of specific movable property 90 is entitled to recover the immovable or movable
property, as the case may be.
4. JOINT AND SEVERAL TORT-FEASORS
All persons who aid, or counsel, or direct or join in the committal of a wrongful act, are joint tort-feasors. 91
Persons are not joint tort-feasors merely because their independent wrongful acts have resulted in one damnum .
92 To constitute a joint liability the act complained of must be joint and not separate. 93 The joint liability arises
under three circumstances:—
(1) Agency, when one person employs another to do an act which turns out to be a tort.
(2) Vicarious liability, i.e. the liability arising from relations, such as master and servant, principal and agent,
guardian and ward etc., which is discussed in Chapter VIII.
(3) Joint action—where two or more persons combine together to commit an act which amounts to a tort. 94
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When persons, not acting in concert, by their wrongful acts, committed substantially contemporaneously, cause
damage to another person, they are not joint tort-feasors but several or concurrent tort-feasors. The damage
caused by several tort-feasors may be the same or indivisible or it may be distinct referable to each tort-feasor. In
case where the damage caused by each of the several tort-feasors is distinct, each of them is liable only for the
damage attributable to his own act. The legal position in respect of several tort-feasors causing the same or
indivisible damage is now nearly the same as in respect of joint tortfeasors. The following principles are to be kept
in view in respect of the liability of joint tort-feasors and several tort-feasors causing the same or indivisible damage:
1 Joint tort-feasors are jointly and severally liable for the whole damage resulting from the tort. They may be
sued jointly or severally. If sued jointly, the damages may be levied from all or either. 95 Each is
responsible for the injury sustained. 96
In a suit for “composite negligence” 97 the plaintiff is not bound to a strict analysis of the proximate or
immediate cause of the event to find out whom he can sue. Subject to the rules as to remoteness of
damage, he is entitled to sue all or any of the negligent persons and it is no concern of his whether there is
any duty of contribution or indemnity as between those persons, though in any case he cannot recover on
the whole more than his whole damage. He has a right to recover the full amount of damages from any of
the defendants. 98
A case of ‘composite negligence’ is sometimes confused with ‘contributory negligence’. The distinction
between the two was well brought out by Balakrishnan C.J.I. in T.O. Anthony v. Karvarnan 1 as follows:
“ ‘Composite negligence’ refers to the negligence on the part of two or more persons. Where a person
is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was
injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer
is jointly and severally liable to the injured for payment of the entire damages and the injured person
has the choice of proceeding against all or any of them. In such a case, the injured need not establish
the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine
the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury,
partly due to the negligence on the part of another person or persons, and partly as a result of his own
negligence, then the negligence on the part of the injured which contributed to the accident is referred
to as his contributory negligence. Where the injured is guilty of some negligence, his claim for
damages is not defeated merely by reason of the negligence on his part but the damages recoverable
by him in respect of the injuries stand reduced in proportion to his contributory negligence.”
In assessing damages against joint tort-feasors or several tort-feasors causing same or indivisible damage
one set of damages will be fixed, and they must be assessed according to the aggregate amount of the
injury resulting from the common act or acts. 2 The damages cannot be apportioned so as to award one
sum against one defendant and another against the other defendant, though they may have been guilty in
unequal degree. 3 If two omnibuses are racing, and one of them runs over a man who is crossing the road
and has no time to get out of the way, the injured person has a remedy against the proprietors of both or
either of the omnibuses. 4
Those who are sued cannot insist on having the others joined as defendants. The mere omission to sue
some of them will not disentitle the plaintiff from claiming full relief against those who are sued. 5 The fact
that the claim is barred by limitation as against one will not in itself free the others from liability. 6
Two dogs, belonging to different owners, acting in concert, attacked a flock of sheep and injured several. In
an action for damages brought against the owners of the dogs, one of them put in a defence claiming that
he was liable for one-half only of the damage. It was held that in law each of the dogs occasioned the whole
of the damage as the result of the two dogs acting together, and that consequently each owner was
responsible for the whole. 7
As a result of a collision between two buses a passenger in one of the buses died. The accident was the
result of negligence of the drivers of both the buses. In a suit under the Fatal Accidents Act by the
representatives of the deceased, it was held that the owners of both the buses were liable as the injury
arose from the composite negligence of the two drivers.8
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2 Under the common law a judgment recovered against one joint tort-feasor, even though it remained
unsatisfied was a good defence to an action against any other joint tort-feasor in respect of the same tort. 9
In contrast to this when same or indivisible damage was caused by several tort-feasors, as frequently
happens in running down actions, a judgment recovered against one of the tortfeasors did not put an end
to the cause of action against any other of the tortfeasors until it had been satisfied. It did so then because
on satisfaction of the judgment the plaintiff had recovered full compensation for his loss which he could not
recover twice. But so long as the earlier judgment remained unsatisfied it was not a bar at common law to
a subsequent action against any other of the tort-feasors nor did it affect the measure of damages that
might be awarded in subsequent action. 10
The Common Law stated above was altered by section 6 of the Law Reform (Married Women and Tort-
feasors) Act, 1935 which was later replaced with modification by section 6 of the Civil Liability (Contribution)
Act, 1978. The law now is that a judgment recovered against one tort-feasor, if unsatisfied does not bar a
subsequent action against any other tort-feasor irrespective of whether he was a joint tort-feasor or one of
the several tort-feasors causing the same or indivisible damage. Nor is the second action limited to the sum
for which the judgment was given in the first action. But the plaintiff is not entitled to costs in any later action
unless the court thinks that there were reasonable grounds for not bringing one action against all the tort-
feasors. 11 Of course the plaintiff remains barred from going on with a separate action against another tort-
feasor if the judgment which he has obtained in the first action has been satisfied. 12
3 Under the common law as developed after Brown v. Wooton , 13 a release granted to one or more of the
joint tort-feasors operates as a discharge of the others. The reason being that the cause of action, which is
one and indivisible, having been released, all persons otherwise liable therefor are consequently released.
14 But as in case of several tort-feasors causing the same or indivisible damage the cause of action is not
one and indivisible release granted to one of several tort-feasors does not release the others. This is now,
if at all, the only substantial distinction between joint tort-feasors and several tort-feasors causing indivisible
damage. 15 A mere agreement not to sue one of them is no bar to an action against others. 16 Because
such an agreement merely prevents the cause of action from being enforced against the particular wrong-
doer with whom it is entered into. The acceptance of a sum of money from one of the joint tort-feasors in
full discharge of his own personal liability does not operate as a release as far as the other joint tort-feasors
are concerned. 17 Where the plaintiff sued several persons for damages for letting loose their cattle and
grazing his crop but compromised with some of the joint tort-feasors according to their liability and not in
full satisfaction of the entire cause of action, the compromise did not exonerate the other tort-feasors from
liability. 18
According to the High Court of Australia the common law rule that there was only one indivisible cause of
action against joint tort-feasors stood abolished in Australia by the Law Reform (Miscellaneous Provisions)
Act, 1955 (which is exactly the same as the corresponding English Act of 1935) and that there remained no
legal basis for the rule that release of one joint tort-feasor releases the others. 19
The Supreme Court of India 20 has not accepted the common law as developed after Brown v. Wooton 21
and has held that in order to release all the joint tortfeasors the plaintiff must have received full satisfaction
or which the law must consider as such from a tort-feasor before the other joint tort-feasors can rely on
accord and satisfaction and that what is full satisfaction will depend on the facts of each case. In this case
22 a suit was filed against several defendants as joint tortfeasors for defamation. One of the defendants
apologised to the plaintiff who accepted the apology. A compromise petition was filed for disposing of the
suit against that defendant on that basis and a decree was passed in terms of the compromise. The
remaining defendants then raised the plea that the release of the defendant who had apologised
extinguished the cause of action against all as they were joint tort-feasors. The Supreme Court negatived
this defence holding that the decree following the apology of one of the defendants could not be said to be
full satisfaction of the claim for the tort committed by the remaining defendants. 23 The Supreme Court has
in effect put joint tort-feasors in the same category as several or concurrent tort-feasors causing the same
or indivisible damage. In case of several or concurrent tort-feasors, as the causes of action are different the
common law rule applying to joint tort-feasors that the release of one operates as a discharge of all has no
application. Therefore, acceptance of a sum less than the full amount of damages from one tort-feasor will
not preclude a suit for the balance against the remaining tort-feasors. But the position will be different if the
Page 38 of 70
CHAPTER IX REMEDIES
sum accepted from one tort-feasor is in full and final settlement of the entire claim arising out of the tort in
which case any subsequent suit against other tortfeasors will be barred. 24
4 If, through no fault of his own, a person gets mixed up in the tortious acts of others so as to facilitate their
wrongdoing, he may incur no personal liability but he comes under a duty to assist the person who has
been wronged by giving him full information and disclosing the identity of the wrong-doers. 25 Thus, when
the Commissioners of Customs and Excise were, in the exercise of their official duties, handling goods
which infringed the plaintiffs’ patent and which were being illicitly imported, they were required to make full
disclosure of the documents in their possesison to enable the plaintiffs to identify the importers. 26
Similarly, a journalist, who receives information damaging to the interests of the plaintiff for publication from
a person who has tortiously obtained them, can be directed to disclose the source in the interests of justice
so that the plaintiff may sue the wrong-doer and take preventive action to protect himself in future. 27
5. CONTRIBUTION BETWEEN WRONG-DOERS
At common law no action for contribution was maintainable by one wrongdoer against another, although the one
who sought contribution might have been compelled to satisfy the full damages. This is known as the rule in
Merryweather v. Nixan . 28 The reason alleged for this rule was that any such claim to contribution must be based
on an implied contract between the tort-feasors, and that such a contract was illegal as being made with a view to
commit an illegal act.
The rule in Merryweather v. Nixan survived with several exceptions until it was abolished by the Law Reform
(Married Women and Tort-feasors) Act, 1935 now replaced by the Civil Liability (Contribution) Act, 1978. A tort-
feasor may now recover contribution from any other tort-feasor who is, or who if sued, would have been, liable in
respect of the same damage , whether as a joint tortfeasor or otherwise. No person shall be entitled to recover
contribution from any person entitled to be indemnified by him in respect of the liability in respect of which the
contribution is sought. 29 The words ‘the same damage’ did not mean ‘substantially or materially similar damage’.
The words ‘the same damage’ have not to be given an expansive interpretation. It had been a constant theme of
the law of contribution that B's claim to share with others the liability to A rested upon the fact that they, whether
equally with B or not, were subject to a common liability to A. The words ‘in respect of the same damage’
emphasised the need for one loss to be apportioned among those liable. 30
The amount of the contribution recoverable from any person shall be just and equitable having regard to the extent
of his responsibility for the damage. The Court can exempt any person from liability to make contribution or direct
that the contribution from any person shall amount to a complete indemnity. 31
The plaintiff fell down a hole which had been left uncovered by the negligence of a contractor employed by the
defendant to carry out certain works on the premises on which the plaintiff had come. It was held that the contractor
who was added as a third party to the suit was liable to contribute one-half of the damages. 32
The principle of Merryweather v. Nixan has been followed in several cases in India, 33 though its applicability is
doubted in various cases. 34 It is held to apply in cases where the parties were wrong-doers in the sense that they
knew or ought to have known that they were doing an illegal or wrongful act. 35 The Nagpur and the Calcutta High
Courts have definitely held that it does not apply in India. Where, therefore, a joint decree is passed against several
persons in a suit in tort and one of them satisfies the decree, he can obtain contribution from his co-judgment-
debtors. 36 A Full Bench of the Allahabad High Court has also held that the doctrine does not apply in India. A tort-
feasor may recover contribution from any other tort-feasor who is or would, if sued, have been liable in respect of
the same damage, whether as a joint tort-feasor or otherwise. The apportionment of liability between the tort-
feasors is to be made in such proportions as the Court thinks just and equitable having regard to the extent of the
moral responsibility of the parties concerned for the damage caused. 37 The correct view, it is submitted, is that
while the right of contribution is based on the principle of justice, that a burden which the law imposes on two men
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CHAPTER IX REMEDIES
should not be borne wholly by one of them, the rule in Merryweather v. Nixan is not in conformity with “justice,
equity and good conscience,” which after all is the guiding principle to be followed by the Courts in India. But it has
been held that in cases, where the doer of the act knew or is presumed to have known that the act he committed
was unlawful as constituting either a civil wrong or a criminal offence, there is neither equity nor reason nor justice
that he should be entitled to claim contribution from the other tort-feasors. 38
6. REMEDIES UNDER THE CONSTITUTION
Articles 32 and 226 of the Constitution respectively confer jurisdiction on the Supreme Court and the High Courts
for the enforcement of fundamental rights. The High Courts have in addition jurisdiction to enforce other legal rights.
It has been held that the power conferred by these provisions is not merely injunctive i.e. preventive but also
remedial and includes a power to award compensation, interim or final, in appropriate cases. 39 Ordinarily, these
provisions are not to be used as a substitute for a suit for compensation but their recourse can be taken in
exceptional cases. 40 Such cases are where the infringement of the fundamental right is gross and patent that is,
incontrovertible and ex facie glaring; and either such infringement is on large scale affecting the fundamental rights
of a large number of persons; or it should appear unjust or unduly harsh or oppressive on account of their poverty
or disability or socially or economically disadvantageous position to require the person or persons affected by such
infringement to initiate or pursue action in Civil Courts. 41
Infringement of a fundamental right or any other right conferred by the Constitution is a wrong under public law
which is sue generis i.e. a class in itself. 42 Damages can be claimed for right to life and personal liberty (Art. 21)
under Articles 32 or 226 of the Constitution in exceptional cases of the nature indicated above.
It may further be mentioned that the Supreme Court has enlarged the doctrine of locus standi by laying down that
where legal injury is caused or legal wrong is done to a person or class of persons who, by reason of poverty or
disability or socially or economically disadvantaged position cannot approach a court of law for justice, any member
of the public or social action group acting bona fide can file a petition under Article 32 or 226 seeking judicial
redress and this can be done even by addressing a letter to the court. 43
1
Bernett v. Chelsea and Kensington Hospital Management Committee , (1968) 1 All ER 1068 : (1968) 2
WLR 422 : 111 SJ 912.
2
(1974) 2 All ER 737 : (1974) 1 WLR 1176 : 117 SJ 915(CA).

3
Rosenberg v. Percival, (2001) 75 ALJR 734.

4
(1962) 1 All ER 623 : (1962) 1 WLR 295 : 106 SJ 218.

5
FLEMING, Torts (6th Edn.), p. 173.
6
Bonnington Castings v. Wardlaw, (1956) AC 613 (HL) : (1956) 2 WLR 707 : (1956) 1 All ER 615; Mc Ghee
v. National Coal Board , (1972) 3 All ER 1008 : (1973) 1 WLR 1 (HL); Wilsher v. Essex Area Health
Authority , (1988) 1 All ER 871 : (1988) AC 1074 (HL); Page v. Smith , (No. 2) (1996) 3 All ER 272 (CA).
Page 40 of 70
CHAPTER IX REMEDIES
Supra.
8
(2002) 3 All ER 305 (HL). This case was followed in Barker v. Saint Gobbain Pipelines plc , (2005) 3 All ER
661 (CA) where the claimant was the widow of a man who had died from mesothalioma contracted as a
result of exposure to asbestos dust while working as an employee under two employers and while self-
employed. No apportionment was allowed to reduce damages in respect of the period of self employment
and the injury was held to be indivisible. But in appeal this decision of the Court of Appeal in Barker's case
was reversed: (2006) 3 All ER 785 (H.L.). It was held that the extent of liability of each defendant would be
commensurate with the degree of risk for which that defendant was responsible. Ascertainment of the
degree of risk would be an issue of fact to be decided by the trial judge. Accordingly the defendant's
liabilities were several and were for a share of the damage consequent on the Contracting of Mesothalioma
by the victim according to the share of the risk created by their breaches of duty.
9
(2004) 4 All ER 587 (HL).
10
Ibid , pp. 596, 604-612, 616.

11
(2005) 2 WLR 268 (HL).

12
(1987) 2 All ER 417 (HL).
13
Hotson v. East Buckshire Area Health Authority , (1987) 2 All ER 909 : (1987) AC 750 : (1987) 3 WLR 232
(HL).
14
Ibid.
15
Ibid. , p. 922.
16
Wilsher v. Essex Area Health Authority , (1988) 1 All ER 871 : (1988) AC 1074 (HL).
17
Ibid.
18
Ibid.
19
(1996) 3 All ER 272 (CA) : (1996) 1 WLR 855.

20
(1969) 3 All ER 1528 : (1970) AC 467 : (1970) 2 WLR 50 (HL).

Page 41 of 70
CHAPTER IX REMEDIES
21
Ibid ., p. 1534.
22
Ibid ., p. 1535.
23
(1981) 2 All ER 742 : (1982) AC 794 : (1981) 3 WLR 155 (HL).

24
Ibid , p. 760, (LORD RUSSEL); p. 764 (LORD KEITH).

25
Holtby v. Brigham & Cowan (Hull) Ltd., (2000) 3 All ER 421(2000) 1 CR 1086 (CA). See further Murrell v.
Healy, (2001) 4 All ER 345 (C.A.) (when an injured person suffers subsequent further injury by the tort of
another person, in assessing damages against him, the court has to ask what damage had been suffered
as a result of that tort by the already injured victim.)
26
Mc Manus v. Beckham , (2002) 4 All ER 497, pp. 512, 513.

27
Rigby v. Hewitt , (1850) 5 Ex. 240, p. 243 : 19 LJ Ex 291 (POLLOCK, CB); Greenland v. Chaplin, (1850) 5
Ex. 243, p. 248 : 82 RR 655 (POLLOCK, CB).
28
Smith v. S.W. Ry ., (1870) LR 6 CP 14.

29
(1921) 3 KB 560.
30
Ibid . (SCRUTTON LJ).

31
(1961) 1 All ER 404 : (1961) 2 WLR 126 : 105 SJ 85 (PC).

32
Ibid.
33
Ibid.
34
(1966) 2 All ER 709 : (1967) 1 AC 617 (PC).

35
Ibid.
36
Page 42 of 70
CHAPTER IX REMEDIES
Ibid.
37
The Heson II, (1969) 1 AC 350, (442) (LORD UPJOHN); Weir, Case Book, 5th Edn., p. 184.
38
(1961) 1 All ER 404 : (1961) AC 388 (PC).

39
(1994) 1 All ER 53 (HL).
40
(1868) LR 3 HL 330.
41
Doyle v. Olby (Iron mongers), (1969) 2 QB 158, (167) : (1969) 2 All ER 119.
42
(1963) 1 All ER 705 : (1963) AC 837 (HL).

43
(2000) 3 All ER 409 (HL).
44
(1964) 1 All ER 98 : (1964) 1 QB 518 (CA).

45
Jolly v. Sutton London Borough Council, (2000) 3 All ER 409, p. 418 (HL). For this case see p. 510.
46
(1963) 1 All ER 705 : (1963) AC 837 (HL).

47
(1964) 1 All ER 98 : (1964) 1 QB 518 (CA).

48
(1963) 1 All ER 705 : (1963) AC 837 (HL).

49
For another example, see VacWell Engineering Co. Ltd. v. BDH Chemicals Ltd ., (1971) 1 QB 88 (110)
(Supply of chemical in ampoules liable to explode on contact with water; minor explosion foreseeable; huge
explosion took place as plaintiff put a number of ampoules in the same sink).
50
(1773) 2 WBI 892.
51
Doyle v. Olby Ltd ., (1969) 2 QB 158 : (1969) 2 All ER 119.

52
Smith New Court securities Ltd. v. Scrimgeour Vickers, (1996) 4 All ER 769, p. 778 : (1996) 3 WLR 1051
(HL) See further p. 652.
Page 43 of 70
CHAPTER IX REMEDIES
53
Dulieu v. White, (1901) 2 KB 669, p. 679 : 85 LT 186 : 17 TLR 555.

54
(1962) 2 QB 405 : (1961) 3 All ER 1159.

55
(1974) 2 All ER 737 : (1974) 1 All ER 1176 (CA).
56
P. 184, supra .
57
(1974) 2 All ER 737 : (1974) 1 All ER 1176 (CA).
58
Ibid .
59
Weld Blundell v. Stephens, (1920) AC 956 : 123 LT 593 : 36 TLR 640 (HL) p. 986 (LORD SUMNER).
“One may find that, as a matter of history several people have been at fault and that if any of them had
acted properly the accident would not have happened, but that does not mean that the accident must be
regarded as having been caused by the faults of all of them. One must discriminate between those faults
which must be discarded as too remote and those which must not.” Stapley v. Gypsum Mines Ltd ., (1953)
2 All ER 478 (H.L.) pp. 485, 486 : (1953) AC 663 (LORD REID).
60
Lord v. Pacific Steam Navigation Co. Ltd.; The Oropesa , (1943) 1 All ER 211 (CA); (PER LORD WRIGHT).
61
Jolly v. Sutton London Borough Council, (2000) 3 All ER 409, p. 420 (HL). For this case see p. 527.
62
City of Lincoln , (1889) P.D. 15 ; The Oropesa supra; M/s. Chaurasia & Co. v. Smt. Pramila Rao, (1974)
ACJ 481 (485) (MP) . See further Chap. XIX, title 7(c), p. 595.
63
(1889) PD 15.
64
(1943) 1 All ER 211 (CA).
65
(1974) ACJ 481 (MP).

66
Ibid ., p. 485. (G.P. SINGH, J.)

67
(1969) 3 All ER 1621 : 5 KIR 921 (HL).
68
Page 44 of 70
CHAPTER IX REMEDIES
Ibid. , p. 1624.
69
Ibid .
70
(1984) 3 All ER 1044 (CA).
71
Ibid .
72
McFarlane v. Tayside Health Board, (1999) 4 All ER 961, pp. 970, 990 (HL).
73
Meah v. Mccreamer , (1985) 1 All ER 367 : (1985) 135 NLJ 80.

74
Ibid.
75
Haynes v. Harwood, (1935) 1 KB 146 : 152 LT 121 : 78 SJ 801 (CA); Chadwick v. British Railway Board,
(1967) 1 WLR 91 : (1967) 2 All ER 945.
76
Ibid .
77
Haynes v. Harwood, (1935) 1 KB 146 (163) : 152 LT 121 : 78 SJ 801.

78
Stansbie v. Troman, (1948) 2 KB 48 : (1948) 1 All ER 599. Approved in Empress Car Co. (Abertillery) Ltd.
v. National Rivers Authority, (1998) 1 All ER 481, p. 488 (HL).
79
Reeves v. Commissioner of Police of the Metropolis, (1999) 3 All ER 897, pp. 902, 903, 914 : (2000) 1 AC
360 : (1999) 3 WLR 363 (HL).
80
Ibid.
81
Corr. v. IBC Vehicles Ltd., (2008) 2 ALL ER 943. For this case see further title 1(C)(IV)A.
82
Weld-Blundell v. Stephens, (1920) AC 956 (985) : 89 LJKB 705 : 36 TLR 640.

83
Haynes v. Harwood, supra p. 154.

84
Page 45 of 70
CHAPTER IX REMEDIES
Home Office v. Dorset Yacht Club , (1970) 2 All ER 294 (300) : (1970) 2 WLR 1140 (HL).
85
See text and notes 56 to 58, p. 188.

86
(1981) 2 All ER 408 : (1981) 2 WLR 1038 : (1981) QB 625 (CA).

87
Ibid. , p. 418.
88
Ibid. , p. 421.
89
(1985) 3 All ER 537 (552) : (1986) 2 WLR 660 : (1986) Ch 546.

90
Topp v. Country Bus (South West) Ltd ., (1993) 3 All ER 448 (CA) p. 465 : (1993) 1 WLR 976.
91
Wright v. Lodge , (1993) 4 All ER 299 (CA)

92
For a case of natural breaking of causation see Carslogie Steamship Co. Ltd. v. Royal Norwegian
Government, (1952) AC 292 : (1952) 1 All ER 20 (HL).
93
(2004) UKHL 20.
94
[McKnew v. Holland & Hannen & Cubitts (Scotland) Ltd . [1969] 3 All ER 1621 at 1623] per Lord Reid: [Hay
or Bourhill v. Young [1942] 2 All ER 396 at 401, [1943] AC 92 at 101] per Lord Russell of Kilowen; [Allan v.
Barclay, (1863) 2 M 873 at 874] per Lord Kinloch.
95
[McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All ER 1621 at 1623] per Lord Reid; [Lamb
v. Camden London BC [1981] 2 All ER 408, [1981] QB 625 ]; but see [Ward v. Cannock Chase DC [1985] 3
All ER 537, [1986] Ch 546 ].
96
[Hughes v. Lord Advocate [1963] 1 All ER 705 at 708, [1963] AC 837 at 847] per Lord Reid.
97
[Hay or Bourhill v. Young [1942] 2 All ER 396 at 405, [1943] AC 92 at 109-110] per Lord Right; [McKillen v.
Barclay Curle & Co Ltd 1967 SLT 41 at 421], per Lord President Clyde.
98
Page v. Smith [1995] 2 All ER 736 at 768, [1996] AC 155 at 197 per Lord Lloyd.
99
(2008) 2 All ER 943 (H.L.) para 8.
Page 46 of 70
CHAPTER IX REMEDIES
Winfield & Jolowicz , Tort (12th Edn.) p. 623.

2
Ibid.
3
Selvanayagam v. University of the West Indies , (1983) 1 All ER 824 (827) : (1983) 1 WLR 585 (PC).
4
Geest plc v. Lansiquot , (2003) 1 All ER 383, p. 384 (PC).

5
Ibid.
6
Vendenburgh v. Truax , (1847) 4 Denio 464, NY.

7
Powell v. Deveney , (1849) 3 Cush 300.

8
Smith v. Green, (1875) 1 CPD 92; Mullett v. Mason , (1866) LR 1 CP 559, (563); Mowbray v. Merryweather,
(1895) 2 QB 640.
9
Sullivan v. Creed, (1904) 2 IR 317.

10
Shepherd v. Midland Ry. Co ., (1872) 25 LT 879.

11
Hill v. New River Company , (1868) 9 B & S 303, (305).

12
Halestrap v. Gregory, (1895) 1 QB 561.

13
Weld-Blundell v. Stephens, (1920) AC 956 : 36 TLR 640 : 123 LT 593.

14
Tremain v. Pike , (1969) 3 All ER 1303 : (1969) 1 WLR 1556.

15
Wieland v. Cyril Lord Carpets Ltd., (1969) 3 All ER 1006.

16
Glover v. L. & S. W. Ry. Co ., (1867) LR 3 QB 25. The negligence of a railway company caused such an
injury to a passenger that he became insane, and by reason of the insanity he committed suicide; the injury
Page 47 of 70
CHAPTER IX REMEDIES
was not regarded as the proximate cause of the death and the company was held not liable for his death;
Scheffer v. W. & C. Ry. , LT Aug. 1882. But see text and note 24, p. 204.
17
Secretary of State v. Gokul Chand , (1925) ILR 6 Lah 451.

18
Clark v. Chambers, (1878) 3 QBD 327.

19
River Wear Commissioners v. Adamson , (1877) 2 App Cas 743 : 47 LJKB 193 : 26 WR 217.
20
Hobbs v. L & S Ry Co. , (1875) LR 10 QB 111, 116.

21
Cobb v. G.W. Ry Co., (1893) 1 QB 459 : (1894) AC 419 : 62 LJQB 335. See also P.A. Narayanan v. Union
of India, (1998) 3 SCC 67 [LNIND 1998 SC 203] : AIR 1998 SC 1659; Sumatidevi M. Dhanwatay v. Union
of India, (2004) 6 SCC 113 [LNIND 2004 SC 445] : (2004) 2 CPJ 27 (SC).
22
Hadwell v. Righton, (1907) 2 KB 345. See Heath's Garage Ltd. v. Hodges, (1916) 1 KB 206.
23
Bradley v. Wallaces Ltd ., (1913) 3 KB 629 : 82 LJQB 1074.

24
Pigney v. Pointers Transport Services Ltd ., (1957) 2 All ER 807, (1957) 1 WLR 1121, 101 SJ 851.
25
Lee v. Sheard, (1956) 1 QB 192 : (1955) 3 WLR 951 : 99 SJ 888.

26
Ramessur Mookerjee v. Ishan Chunder Mookerjee , (1868) 10 WR 457. A suit for WASILAT, in respect of
profits derived from a turn of worship, which are in their nature uncertain and voluntary, is not maintainable:
Kashi Chandra Chukerbutty v. Kailash Chandra Bandhopadhya , (1899) ILR 26 Cal 356; Dino Nath
Chukerbutty v. Pratap Chandra Goswami , (1899) ILR 27 Cal 30. See also Venkatasa v. T. Srinivassa ,
(1869) 4 MHC 410; Ram Gobind Singh v. Magistrate of Ghazeepoor , (1872) 4 NWP 146.
27
Mussamut Anundmoyee Dossee v. Mussamut Hameedoonissa , (1862) 1 Marsh 85; Punnun Sing v. Meher
Ali , (1864) WR (Gap No.) 365; Ram Chandra Jana v. Jiban Chandra Jana , (1868) 1 Beng LR (ACJ) 203.
The plaintiff cannot recover the value of the crops he is prevented from raising on his land by reason of the
defendant obstructing his right of way to his land: Karibasavana Gowd v. Veerabhadrappa , (1912) ILR 36
Mad 580. It is submitted that the case is of doubtful authority.
28
Lokenath v. Guru Prosad , AIR 1963 Orissa 21 .

29
Mi Taw v. Nga Ket , (1904) UBR (1904-1906), Tort, p. 1.

Page 48 of 70
CHAPTER IX REMEDIES
30
Ammani v. Sellayi , (1883) ILR 6 Mad 426. Where, as a result of a proceeding under s. 144,Criminal
Procedure Code, taken by the defendants, the police stopped the plaintiff's brick making and owing to
rainfall the bricks and the fuel which was to be used in burning them were damaged, and the plaintiff sued
the defendants for damages, it was held that the damage was too remote. Neither could the defendants
have contemplated damage by rain as the result of their action, nor could it be said that the damage by rain
necessarily flowed from the action of the defendants :Maksood Alvam v. Bandhu Sahu , [1938] PWN 621.
See Ross v. Secretary of State , (1913) ILR 37 Mad 55, where action was brought for loss of commission
for supplying labour. See Robert and Charriol v. Isaac , (1870) 6 Beng LR (Appx) 20, where interest on bills
was claimed.
31
Banwarilal v. The Municipal Board, Lucknow , (1941) ILR 17 Luck 98.

32
Municipal Board, Kheri v. Ram Bharosey , AIR 1961 All 430 [LNIND 1961 ALL 13].
33
Huckle v. Money, (1763) 2 Wilson 205, 206.

34
PER VISCOUNT DUNEDIN in Admiralty Commissioners v. S. S. Susquehanna, (1926) AC 655 (661, 662).
35
Liesbosch Dredger v. Edison S.S., (1933) AC 449 : 149 LT 49 : 102 LJP 73.
36
Dimond v. Lovell, (2000) 2 All ER 897 : (2000) 9 WLR 1121 (HL); Lagden v. Oconnar , (2004) 1 All ER 277
(HL).
37
Rookes v. Barnard, (1964) AC 1129 : (1964) 2 WLR 269 (HL). Rustom K. Karanjia v. Thackersay , (1969)
72 Bom LR 94.
38
See text and notes 13 to 15, pp. 187, 188, supra .

39
Mallet v. Mc Monagle, (1970) AC 166 (HL), p. 176 (LORD DIPLOCK).

40
Malee v. J.C. Hutton Pty Ltd ., (1990) 64 ALJR 316 (High Court of Australia).
41
Ibid.
42
Duke of Leeds v. Earl of Amherst , (1850) 20 Beav 239.

43
Page 49 of 70
CHAPTER IX REMEDIES
Joseph v. Shew Bux , (1918) 21 Bom LR 615, PC.

44
Nitro-Phosphate etc., Co. v. London and St. Katharine Docks Co ., (1878) 9 Chd 503 : 39 LT 433 : 27 WR
267.
45
Workman v. G. N. Ry. Co., (1863) 32 LJQB 279.

46
Mediana v. Comet, (1900) AC 113 (116) : 82 LT 95 : 16 TLR 194; Bishun Singh v. AWN Wyatt, (1911) 14
CLJ 515 ; Lala Punnalal v. Kasturichand Ramaji, (1945) 2 MLJ 461 [LNIND 1945 MAD 227].
47
Jeet Kumari Poddar v. Chittagong Engineering and Electric Supply Co. Ltd ., ILR (1946) Cal 433.
48
Phillips v. Ward, (1956) 1 All ER 874 (CA); Perry v. Sidney Phillips & son (a firm), (1982) 3 All ER 705 :
(1982) 1 WLR 1297 (CA); Wats v. Morrow, (1991) 4 All ER 937 (CA); Gardner v. Marsh & Parsons (a firm),
(1997) 3 All ER 871 (CA).
49
Ibid.
50
Rookes v. Barnard, (1964) AC 1129 : (1964) 2 WLR 269 (HL).

51
Rookes v. Barnard, supra; Cassel & Co. Ltd. v. Broome, (1972) AC 1027 : (1977) 2 WLR 645 : (1977) 1 All
ER 801 (HL).
52
See cases in notes 50, 51, supra .

53
AB v. South West Water Services Ltd ., (1993) 1 All ER 609 (CA).

54
Kuddus v. Chief Constable of Leicestershire, (2001) 3 All ER 193 : (2001) 2 WLR 1789 : (2001) UKHL 29
(HL).
55
Holden v. Chief Constable of Lancashire , (1986) 3 All ER 836 : (1986) 3 WLR 1107 (CA). Tort by a public
authority like a Metropolitan Council in discharge of its public functions will also attract exemplary damages;
Bradford City Metropolitan Council v. Arora, (1991) 3 WLR 1377 (CA). But a tort by a statutory water
undertaker carrying on a commercial operation of supplying water will not attract exemplary damages; A.B.
v. South West Water Services Ltd., (1993) 1 All ER 609 (CA).
56
Lucknow Development Authority v. M.K. Gupta , AIR 1994 SC 787 p. 798 : (1994) 1 SCC 243 [LNIND 1993
SC 946] : (1994) 13 CLA 20.
Page 50 of 70
CHAPTER IX REMEDIES
57
Ibid.
58
[LNIND 1999 SC 637]. See further , Rabindra Nath Ghosal v. University of Calcutta , AIR 2002 SC 3560 :
(2002) 7 SCC 478 [LNIND 2002 SC 616].
59
Ibid ., p. 3020.
60
Ibid ., p. 3021.
61
M.C. Mehta v. Union of India, (1987) 1 SCC 395 [LNIND 1986 SC 539], p. 421 : AIR 1987 SC 965 : 1987
SCC (L&S) 37.
62
Ibid.
63
Charan Lal Sahu v. Union of India , AIR 1990 SC 1480, pp. 1545, 1557 : (1990) 1 SCC 613 [LNIND 1989
SC 639]. See further , pp. 520, 521.
64
John v. MGN Ltd., (1996) 2 All ER 35 : (1997) 3 WLR 403 (CA).

65
(1997) 2 All ER 762 (CA), pp. 774 to 776 (The case also contains guidance regarding the amount to be
generally awarded).
66
Watkins v. Secretary of State for the Home Department , (2006) 2 ALL ER 353 (HL) pp. 365, 366.
67
Gray v. Motor Accidents Commission, (1999) 73 ALJR 45.

68
Ibid., p. 48
69
(1999) ALJ 402.
70
Prehn v. Royal Bank of Liverpool , (1870) LR 5 Ex 92, 99.

71
Ashby v. White , (1704) 2 Ld Raym 938.

72
Page 51 of 70
CHAPTER IX REMEDIES
Ratcliffe v. Evans, (1892) 2 QB 524, 528 : 61 LJQB 535 : 66 LT 794 followed in Manjappa Chettiar v.
Ganapathi Gounden, (1911) 21 MLJ 1052 [LNIND 1911 MAD 233].
73
Wilson v. Kanhya , (1869) 11 WR 143.

74
Mudhun Mohun Dass v. Gokul Dass, (1866) 10 MIA 563.

75
WINFIELD & JOLOWICZ, Tort, (12th Edn.) p. 621; Ratcliffe v. Evans, (1892) 2 QB 524 (528); Stroms Bruks
Aktie Bolag v. John and Peter Hutchinson, (1905) AC 515, (525, 526).
76
PER LORD BRAMWELL in Darley Main Colliery Co. v. Mitchel , (1886) 11 App Cases 127 (144); Raghubir
Singh v. Secretary of State for India , ILR (1938) All 658.
77
PER BEST, C.J. in Richardson v. Mellish , (1824) 2 Bing 229, 240.

78
Fetter v. Beale , (1701) 1 Ld Raym 339 : 12 Mod 42.

79
Hodsoll v. Stallebrass , (1840) 11 A & E 301; Allan Mathewson v. Chairman of the District Board of
Manbhum , (1920) 5 PLJ 359.
80
Darley Main Colliery Co. v. Mitchell , (1886) 11 App Cas 127, 144 : 54 LT 882 : 2 TLR 301; Brunsden v.
Humphrey, (1884) 14 QBD 141 : 51 LT 529.
81
Guest v. Warren , (1854) 9 Ex 379.

82
PER LINDLEY, LJ, in Hole v. Chard-Union, (1894) 1 Ch 293, 295.

83
Lambkin v. S.E. Ry. Co ., (1880) 5 App Cas 352. See Koomaree Dossee v. Bama Soonduree , (1868) 10
WR 202, in which damages for prospective loss were awarded because the defendant not only kept the
plaintiff out of possession of her land but cut down all the fruit-bearing and timber trees, and carried away or
destroyed by brick making all the fertile soil.
84
Darley Main Colliery Co. v. Mitchell , (1886) 11 App Cas 127 : 55 LJQB 127 : 54 LT 882; Crumbie v.
Wallsend Local Board, (1891) 1 QB 503. Depreciation due to risk of future subsidence not taken into
account in awarding damages : West Leigh Colliery Co. Ltd. v. Tunnicliffe and Hampson, Ltd ., (1908) AC
27 : 24 TLR 146 : 77 LJ Ch 202.
85
(1999) 1 All ER 1 (HL).
Page 52 of 70
CHAPTER IX REMEDIES
86
Ibid, p. 38 (Lord Steyn).

87
Ibid, p. 39.
88
Ibid., pp. 30, 31, 40. (See further pp. 224, 225, post ).
89
Ibid, p. 31 See further pp. 114, 115, ante.

90
Ibid., pp. 35, 36, 43.

91
Ibid., pp. 36, 41.

92
Ibid.
93
Ibid.
94
(1942) 2 All ER 396 : (1943) AC 92 : 167 LT 261 (HL).

95
White v. Chief Constable of the South Yorkshire Police, (1999) 1 All ER 1 pp. 40, 41 : (1999) 2 AC 455 :
(1998) 3 WLR 1509 (HL).
96
(1991) 4 All ER 907 : (1992) 1 AC 310 : (1991) 3 WLR 1057 (HL).

97
(1995) 2 All ER 736 : (1995) 2 WLR 644 : (1996) AC 155 (HL).

1
White v. Chief Constable of the South Yorkshire Police, Supra , pp. 32, 33.
2
(1995) 2 All ER 736 (HL).
3
(1982) 2 All ER 298 : (1983) AC 410 : (1982) 2 WLR 982 (HL).

4
(1991) 4 All ER 907 : (1992) 1 AC 310 : (1991) 3 WLR 1057 (HL).

5
Page 53 of 70
CHAPTER IX REMEDIES
In White v. Chief Constable of Yorkshire Police, (1999) 1 All ER 1, p. 41 : (1999) 2 AC 455 : (1998) 3 WLR
1509 (HL), LORD HOFFMAN summarises the decision in Alcock.
6
(1999) 1 All ER 1 (HL).
7
(1992) 2 All ER 65 (HL). For this case see pp. 115 (footnote 64), 133 (footnote 8) .
8
(2000) 2 All ER 237 (HL).
9
Chadwick v. British Transport Commission, (1967) 1 WLR 912 : (1967) 2 All ER 945.
10
(1999) 1 All ER 1 p. 47(e)(HL).
11
Mc Farlane v. E E Caledonia Ltd ., (1994) 2 All ER 1 (CA).

12
(2003) 4 All ER 969 (HL).
13
(2009) 2 All ER 829 (C.A.).
14
Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, pp. 799, 800 : (1994) 1 SCC 243
[LNIND 1993 SC 946] : (1994) 80 Com Cases 714. Followed in Gaziabad Development Authority v. Balbir
Singh , AIR 2004 SC 2141; Haryana Development Authority v. Vijay Agarwala , AIR 2004 SC 3952.
Distinguished in Gaziabad Development Authority v. Union of India, (2000) 7 JT 256, p. 261 : (2000) 6 SCC
113 : AIR 2000 SC 2003 (compensation for mental agony cannot be allowed in cases of breach of
contract). See further Farley v. Skinner, (2001) 4 All ER 801 (H.L.) (An exceptional case where non-
pecuniary damages were allowed for breach of contract)
15
Spring Meadows Hospital v. Harjot Ahluwalia , (1998) 2 JT 620 : (1998) 4 SCC 39 [LNIND 1998 SC 357] :
AIR 1998 SC 1801.
16
Text and note 62, p. 114, Ante.

17
Jose Philip Mampillil v. Premier Automobiles Ltd., (2004) 2 SCC 278 [LNIND 2004 SC 111], p. 281 : AIR
2004 SC 1529; Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711 : AIR 2007 SC
2198(Damage for mental agony can be allowed where the seller a statutory authority acts negligently,
arbitrarily or capriciously in delivering possession. Case under Consumer Protection Act ).
18
Halligua v. Mohansundaram, (1951) 2 MLJ 471.

19
Page 54 of 70
CHAPTER IX REMEDIES
Wilkinson v. Downston, (1897) 2 QB 57 : 66 LJQB 493.

20
Janvier v. Sweeney, (1919) 2 KB 316 : 121 LT 179.

21
(2003) 4 All ER 969, pp. 980, 981.
22
Ibid. , p. 981.
23
(2003) 3 All ER 932 (CA).
24
(2003) 4 All ER 969, p. 982 (para 46).
25
Consolidated Rail Corporation v. Gottshall , (1994) 512 US 532, 544, 547, 548.
26
Tame v. New South Wales , (2002) 211 CLR 317, p. 319.

27
See further Klans Mitterbachart v. The East India Hotels Ltd., AIR 1997 Delhi 201 [LNIND 1997 DEL 27],
p. 217 (22nd edition p. 177 of this book is referred).
28
(1979) 2 All ER 910 : (1980) AC 174 : (1979) 3 WLR 44 (HL). See further, Sushila Pandey v. New India
Assurance Co. Ltd ., AIR 1983 All 69 ; M/s Pest Control India Pvt. Ltd. v. Ramanand Devrao Hattangadi ,
AIR 1990 Bombay 4, pp. 11, 12; Shruti Shekhar Singh Samanta v. Managing Director, Orissa Road
Transport, Berhampur , AIR 1991 Orissa 225, p. 228; Narbada v. Suresh Chandra Mittal , AIR 1993 MP 26
[LNIND 1992 MP 84]; Ghanshyam Patel v. Vijay Kumar Dubey, AIR 1998 MP 216 [LNIND 1997 MP 365] p.
219. Victims in a motor accident were, it is submitted, wrongly allowed Rs. 10,000 for the mental shock and
injury to family members in U.P. State Road Transport Corporation v. Jagjit Singh , AIR 1991 All 84 [LNIND
1990 ALL 307], p. 88; such a claim ought to be made by the family members themselves if tests laid down
in title 1(D)(v) are satisfied.
29
Watson v. Powles, (1968) 1 QB 596.

30
Jefford v. Gee, (1970) 2 QB 130; Taylor v. Bristol Omnibus Co ., (1975) 2 All ER 1107 (CA); Klans
Mitterbachert v. The East India Hotels Ltd., Supra p. 217.
31
Taylor v. Bristol Omnibus Co ., (1975) 2 All ER 1107 p. 1111 (CA).

32
Lim Poh Choo v. Camden and Islington Area Health Authority , (1979) 2 All ER 910 (921) : (1980) AC 174 :
(1979) 3 WLR 44 (HL). See further Fizabai v. Nemichand , AIR 1993 MP 79 [LNIND 1992 MP 42], pp. 87,
88.
Page 55 of 70
CHAPTER IX REMEDIES
33
Basavraj v. Shekhar , AIR 1988 Kant 105 [LNIND 1987 KANT 76], p. 108 (quoting LORD DEVLIN); Shruti
Shekhar Singh Samanta v. Managing Director , Orissa Road Transport, Berhampur, supra , p. 229.
34
Lado v. Uttar Pradesh Electricity Board , Hindustan Times 17/12/87 (SC).

35
Concord of India Insurance Co. Ltd. v. Nirmala Devi , AIR 1979 SC 1666; (1980) ACJ 55 : (1979) 4 SCC
365 [LNIND 1979 SC 238] (SC), p. 56 (Fatal accident case); Hardeo Kaur v. Rajasthan State Road
Transport Corporation , AIR 1992 SC 1261, p. 1263 : (1992) 2 SCC 567 [LNIND 1992 SC 255] (Fatal
Accident case).
36
See text and note 32, supra .

37
General Manager, Kerala State Road Transport Corporation v. Mrs. Susamma Thomas , AIR 1994 SC
1631, p. 1632 : (1994) 2 SCC 176 : 1994 ACJ 1.
38
R.D. Hattangadi v. M/s. Pest Control India Pvt. Ltd ., AIR 1995 SC 755, p. 759; Divisional Controller KSRTC
v. Mahadeo Shetty, (2003) 7 SCC 197 [LNIND 2003 SC 608], pp. 204, 205.
39
AIR 1995 SC 755.
40
Ibid. p. 759. See further Aswini Kumar Misra v. P. Muniam Babu, AIR 1999 SC 2260 p. 2261 : (1999) 4
SCC 22 [LNIND 1999 SC 367]. For these cases see text and notes 19, 20, p. 231; Divisional Controller
KSRTC v. Mahadeo Shetty , supra .
41

42
Ibid , para 8 see pp.223-224, infra .

43
Yearworth v. North Bristol NHS, (2009) 2 All ER 986 (C.A.).

44
Wise v. Kay , (1962) 1 All ER 257 : (1962) 1 QB 638; West (H) & Son Ltd v. Shephard , (1963) 2 All ER 625
(HL); Lim Poh Choo v. Camden and Islington Area Health Authority , (1979) 2 All ER 910 : (1980) AC 174
(HL). See further Valiyakathodi Mohammad Koya v. Ayyappankadu Ramamoorthi Mohan , AIR 1991 Ker 47
[LNIND 1990 KER 210].
45
Flint v. Lovell , (1934) All ER 200 : (1935) 1 KB 354 : 50 TLR 127; Rose v. Ford , (1937) 3 All ER 359 (HL);
Benham v. Gambling , (1941) 1 All ER 7 : (1941) AC 157 (HL); West (H) & Son Ltd v. Shephard , (1963) 2
Page 56 of 70
CHAPTER IX REMEDIES
All ER 625 : (1994) AC 324 (HL); Vinod Kumar Shrivastava v. Ved Mitra Vohra, (1970) ACJ 189 (MP) : AIR
1970 MP 172 [LNIND 1969 MP 97]; Klaus Mittelbachert v. The East India Holds Ltd., AIR 1997 Delhi 201
[LNIND 1997 DEL 27] p. 218.
46
Ibid.
47
WINFIELD & JOLOWICZ, Tort, (12th Edn.), p. 625.
48
(1963) 2 All ER 625 (631) : (1994) AC 324 (HL).

49
(1965) 1 All ER 563 : (1966) 1 QB 273 (CA).

50
Vinod Kumar Shrivastava v. Ved Mitra Vohra, (1970) ACJ 189 (194) (MP) : AIR 1970 MP 172 [LNIND 1969
MP 97] p. 176 (G.P. SINGH J). These observation were reproduced by another D.B. of M.P. without
referring to the earlier case Shafiq v. Promod Kumar Bhatia, AIR 1997 MP 142 [LNIND 1996 MP 317], p.
144. See further, Sushila Pandey v. New India Assurance Co. Ltd ., AIR 1983 All 69 ; M/s. Pest Control
India Pvt. Ltd. v. Ramanand Devrao Hattangadi , AIR 1990 Bombay 4, pp. 11, 12; Klaus Mitterbachert v.
The East India Hotels Ltd., AIR 1997 Del 201 [LNIND 1997 DEL 27], p. 218.
51
Wright v. British Railways Board , (1983) 2 All ER 698 (HL), p. 699 : (1983) 2 AC 773.
52
Jai Bhagwan v. Laxman, (1994) 5 SCC 5. See further Divisional Controller KSRTC v. Mahadeo Shetty,
(2003) 7 SCC 197 [LNIND 2003 SC 608] pp. 203, 204 : AIR 2003 SC 4172.
53
Note 48, supra.

54
Singh v. Toong Fang Omnibus Co ., (1964) 2 All ER 925 (927) (PC); Vinod Kumar Shrivastava v. Ved Mitra
Vohra, supra , p. 195 (ACJ). See further Delhi Transport Corporation v. Kumari Lalita , AIR 1982 Del 558
[LNIND 1982 DEL 123].
55
Babu Mansa v. The Ahmedabad Municipal Corporation, 1978 ACJ 485 (494, 495); (Gujarat); Narbada v.
Sureshchandra , AIR 1993 MP 26 [LNIND 1992 MP 84]; Walker v. John Mclean & Sons Ltd ., (1979) 2 All
ER 965 (CA); Croke (a minor) v. Wiseman , (1981) 3 All ER 852 (859) : (1982) 1 WLR 71 (CA).
56
(2003) 2 SCC 274 [LNIND 2002 SC 768], pp. 284, 285 : AIR 2003 SC 674, pp. 681, 682.
57
Heil v. Rankin, (2000) 3 All ER 138 : (2000) 2 WLR 1173 : (2001) QB 272 (CA).
58
Page 57 of 70
CHAPTER IX REMEDIES
(1979) 2 All ER 910 (920) : (1980) AC 174 (HL).

59
Ibid.
60
Ramu Tolaram v. Amichand Hansraj Gupta , AIR 1988 Bombay 304 [LNIND 1987 BOM 13], p. 311 :
(1980) AC 174 : (1979) 3 WLR 44.
61
Lim Poh Choo v. Camden & Islington Area Authority , (1979) 2 All ER 910 (HL).
62
Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 [LNIND 2002 SC 768], pp. 282, 283 : AIR 2003 SC 674, p.
682.
63
Wattson v. Port of London Authority , (1969) 1 Lloyd's Rep 95; Cunningham v. Harrison, (1973) QB 942;
Donnelly v. Joyce, (1974) QB 454; Hay v. Hughes , (1975) 1 All ER 257; Taylor v. Bristol Omnibus Co .,
(1975) 2 All ER 1107 (CA); Bharat Premji Bhai v. Municipal Corporation, Ahmedabad, (1979) ACJ 264
(Gujarat); Tejinder Singh v. Inderjit Singh , AIR 1988 P&H 164 p. 172. But when a plaintiff is looked after
under the national health service a nil award should be made in respect of nursing care because no
expense will be incurred in supplying the plaintiff's needs; Housecroft v. Burnefit , (1986) 1 All ER 332 :
(1985) 135 NLJ 728 (CA).
64
Bharat Premji Bhai v. Municipal Corporation, Ahmedabad, 1979 ACJ 264 (Gujarat), pp. 270, 271.
65
Hunt v. Severs , (1994) 2 All ER 385 (HL) p. 394 : (1994) AC 350 : (1994) 2 WLR 602. Giambrone v. JMC
Holiday Ltd. , (2004) 2 All ER 891 (CA). (The gratuitous care rendered by a family member for which
damages can be allowed must be one which went distinctly beyond that which was a part of the ordinary
regime of family life.)
66
Ibid. Hunt v. Severs is not the law in Australia where the plaintiff is not to be regarded holding the relevant
damages in trust for the voluntary carer and it matters not the carer is the actual tortfeasor : Kars v. Kars,
(1997) 71 ALJR 107. But the decision has been criticised see (1997) 71 ALJ 882.
67
Worwick v. Hudson, (1999) 3 All ER 426 (CA).

68
Lowe v. Guise , (2002) 3 All ER 454 (CA).

69
Dews v. National Coal Board , (1987) 2 All ER 545 (HL), p. 547.

70
Ibid .
Page 58 of 70
CHAPTER IX REMEDIES
72
Ibid . See further text and note 77, infra .

73
Ibid , 549.
75
Ibid , p. 547. But ‘domestic element’ in the cost of hospital and nursing care is deductible to avoid
duplication (p. 548). See text and note 81, infra .
76
Lim Poh Choo v. Camden and Islington Area Health Authority , (1979) 2 All ER 910 (HL) p. 925 : (1980) AC
174 : (1979) 3 WLR 44.
77
Ibid. British Transport Commission v. Gourley, (1956) AC 185 (HL) and text and note 60, supra .
78
Lim Poh Choo v. Camden and Islington Area Health Authority , (1979) 2 All ER 910 : (1956) 2 WLR 41 :
(1955) 3 All ER 796 (HL), p. 925 : (1980) AC 174 : (1979) 3 WLR 44.
79
Picket v. British Rail Engineering Ltd ., (1979) 1 All ER 774 : (1980) AC 136 : (1978) 3 WLR 955 (HL).
Bhagwandas v. Mhd . Arif , AIR 1988 AP 99, p. 103. But in case of children of tender years, the
assessment being highly speculative, damages for loss of earnings of lost years will not be allowed.
81
Lim Poh Choo v. Camden and Islington Area Health Authority , (1979) 2 All ER 910 (HL), p. 921 : (1980)
AC 174 : (1979) 3 WLK 44.
82
Ibid ; Picket v. British Rail Engineering Ltd., supra .

83
Lim Poh Choo v. Camden & Islington Area Health Authority , (1979) 2 All ER 910 (HL), p. 923 : (1980) AC
174 : (1979) 3 WLR 44.
84
Ibid ; Cookson v. Knowles , (1978) 2 All ER 604 : (1979) AC 556 (HL). (A case of fatal accident).
85
Pritchard v. J.H. Cobben Ltd ., (1987) 1 All ER 360 : (1987) 2 WLR 627 (C.A.). In fatal accident cases
multiplier is selected with reference to the date of death. See text and notes 91, 92, p. 118.
86
WINFIELD & JOLOWICZ, Tort, (12th Edn) p. 633.
87
Hodgson v. Trapp , (1988) 3 All ER 870 (HL).

88
Page 59 of 70
CHAPTER IX REMEDIES
Hunt v. Severs , (1994) 2 All ER 385 (HL) p. 396.

89
Taylor v. Bristol Omnibus Co ., (1975) 2 All ER 1107 (CA); Croke (a minor) v. Wiseman , (1981) 3 All ER
852 (CA).
90
Parry v. Cleaver , (1969) 1 All ER 555 (HL); (1970) AC 1 (HL).

91
Lim Pooh Choo v. Camden & Islington Area Health Authority , (1979) 2 All ER 910 (HL), p. 925 : (1980) AC
174 (1979) 3 WLR 44.
92
(1998) 3 All ER 481 (HL).
93
Ibid . p. 498. In England section 1 of the Damages Act, 1996 enables the Lord Chancellor to prescribe from
time to time the rate of return expected from the investment of a sum awarded as damages for future
pecuniary loss in action for personal injury which the court shall take into account unless it finds that a
different rate is more appropriate. By the Damages (Personal Injury) order 2001 the Lord Chancellor
prescribed 2.5% as the rate of return. This is the rate which is now used for calculating damages for future
pecuniary loss : See Warriner v. Warriner , (2000) 3 All ER 447 (CA).
94
Foster v. Tyne and Wear Country Council , (1986) 1 All 567 (CA). For calculating loss of earning capacity
from loss of a chance of career see Herring v. Ministry of Defence , (2004) 2 All ER 44 (CA). This case also
refers to Actuarial Tables (Ogden Tables edn. 2000) at p. 47 used in personal injury and fatal accident
cases.
95
Ibid . (In this case the plaintiff suffered a fracture of the ankle joint. The employer of his gave him the old job
of driving heavy vehicles. The medical opinion was that the plaintiff will have to give up the job after 5-10
Years. The plaintiff was awarded 5 years’ salary as damages for loss of earning capacity.)
96
Westwood v. Secretary of State for Employment , (1984) 1 All ER 874 (HL), p. 879; Hodgson v. Trapp ,
(1988) 3 All ER 870 (HL). But under s. 2(1) of the Law Reform (Personal Injuries) Act, 1948 (U.K.) only one
half of the value of benefits accruing for five years after accrual of cause of action are alone to be deducted
from damages and no deduction is to be made for any period thereafter : Jackman v. Corbett , (1987) 2 All
ER 699 : (1988) QB 154 (CA). See further, Smoker v. London Fire and Civil Defence Authority, (1991) 2
WLR 1052 : (1991) 2 SC 502 : (1991) 2 All ER 449 (HL); Hassal v. Secretary of State for Social Security ,
(1995) 3 All ER 909 (CA).
97
Bradburn v. Great Western Railway Co ., (1874) LR 10 Ex 1; Parry v. Cleaver, (1970) AC 1 (HL);

Westwood v. Secretary of State for Employment, supra , p. 879; Kandimallan Bharati Devi v. The General
Insurance Corporation of India , AIR 1988 AP 361 [LNIND 1987 AP 267], pp. 369, 370; Smoker v. London
Fire and Civil Defence Authority, supra .
1
Gaca v. Pirelli General plc (2004) 3 All ER 348 (CA).

Page 60 of 70
CHAPTER IX REMEDIES
Parry v. Cleaver, (1970) AC 1 : (1969) 2 WLR 821 : 113 SJ 147 (HL); Smoker v. London Fire and Defence
Authority , (1991) 2 All ER 499 (HL).
4
Longden v. British Coal Corp., (1998) 1 All ER 289 (HL).

6
Ibid.
7
Ibid, p. 296 (where relevant passages from speeches of Lord Reed and Lord Wilberforce in Parry v.
Cleaner are quoted.
8
Hussain v. New Taplow Paper Mills , (1987) 1 All ER 417 (C.A.) : affd. (1988) 1 All ER 541 (HL); Parry v.
Cleaver, 1970 AC 1, p. 16 : (1969) 2 WLR 821.
9
Hussain v. New Taplow Paper Mills, supra.

10
Colledge v. Bass Mitchells and Butlers Ltd ., (1988) 1 All ER 536 (CA).
11
Pallavan Transport Corporation v. P. Murthy , AIR 1989 Mad 14 [LNIND 1986 MAD 359].
12
Wright v. British Railways Board , (1983) 2 All ER 698 : (1983) 2 AC 773 (HL).
13
Cooksan v. Knowles , (1978) 2 All ER 604 : (1979) AC 556 : (1978) 2 WLR 978 (HL). (A fatal accident
case).
14
Section 34 110 CC, Motor Vehicles Act, 1939; & see further Vinod Kumar Shrivastava v. Ved Mitra, 1974
ACJ 189.
15
1985 ACJ 645 : AIR 1986 SC 1191 followed in Jagbir Singh v. General Manager, Punjab Roadways, (1986)
4 SCC 431 [LNIND 1986 SC 398] : AIR 1987 SC 70; Hardeo Kaur v. Rajasthan State Transport
Corporation , AIR 1992 SC 1261, p. 1263 : (1992) 2 SCC 567 [LNIND 1992 SC 255].
16
See 1985 ACJ Index, under the title ‘Interest’. Maharashtra State Road Transport Corporation v.
Pushpaben Rajaram Bhai Patel , AIR 1990 Bom 214 [LNIND 1989 BOM 172]; Sardar Ishwar Singh v.
Himachal Puri , AIR 1990 MP 282 [LNIND 1989 MP 154].
17
Managing Director, Karnataka Power Corporation v. Geetha , AIR 1989 Karnt 104 .
Page 61 of 70
CHAPTER IX REMEDIES
18
(1979) 2 All ER 910 : (1980) AC 174 : (1979) 3 WLR 44 (HL). See further Dr. M.K. Gourikutty v. M.K.
Raghvan, AIR 2001 Ker 398 [LNIND 2001 KER 347].
19
AIR 1995 SC 755, p. 759 : (1995) 1 SCC 551.
20

21

22
Croke (a minor) v. Wiseman , (1981) 3 All ER 852 : (1982) 1 WLR 71 (CA)

23
(1979) 1 All ER 774 : (1980) AC 136 (HL); According to a guideline in April, 1985 an award of 75,000 for
pain and suffering and loss of amenity is appropriate for a typical case of tetraplegia; Housecroft v. Burnett ,
(1986) 1 All ER 332 (CA); (A typical case of tetraplegia is one where the injured is fully aware of his
disability, has a life expectancy of 25 years or more, has powers of speech, sight and hearing and needs
help with bodily functions).
24
(1981) 2 All ER 21 : (1981) 1 WLR 549 (CA).

25
(1940) 1 KB 556 : 162 LT 398 : 56 TLR 442.

26
(1984) ACJ 559 : AIR 1986 SC 1199. For injuries resulting in amputation of either right leg, left leg or right
hand damages ranging from Rs. 23,000 to R s. 7 0,000 have been awarded by different High Courts; see
Akhaya Kumar Sahoo v. Chhabirani Seth , AIR 1991 Orissa 218 and other cases referred to in para 13 at p.
220 of the report.
27
(1985) 3 All ER 284 : (1985) 1 WLR 963 : (1985) 135 NLJ 383.
28
(1985) 3 All ER 284 : (1985) 1 WLR 963 : (1985) 135 NLJ 383.
29
(1997) 11 SCC 446. In the same accident the pillion rider, who was earning Rs. 500 p.m. in photography
had to undergo prolonged treatment and suffered permanent partial disability was allowed Rs. 1 lac.
compensation in addition to that allowed by the High Court : Swatantra Kumar v. Omar Ali, AIR 1999 SC
1500 : (1998) 5 SCC 308.
30
Muthaiah Shekhar v. Nesamony Tpt. Corporation, AIR 1998 SC 3064 : (1998) 7 SCC 39 [LNIND 1998 SC
819].
Page 62 of 70
CHAPTER IX REMEDIES
31
A Robert v. United Insurance Co., AIR 1999 SC 2977 : (1999) 8 SCC 226 [LNIND 1999 SC 751].
32
Hindustan Times, 17/12/87. See further Ishwardas Paulsrao Ingle v. General Manager Maharashtra Road
Transport Corporation , AIR 1992 Bombay 396 [LNIND 1992 BOM 147] (Loss of right forearm of boy aged
18 or 19 years, Rs. 50,000 allowed); Kumari Alka v. Union of India , AIR 1993 Del 267 [LNIND 1993 DEL
197] (A female child aged 6 years lost two fingers of her right hand, awarded Rs.1,50,000).
33
(1977) ACJ 118 : (1977) 2 SCC 441 [LNIND 1977 SC 63].

34

35
Mcfarlane v. Tayside Health Board, (1999) 4 All ER 961 (HL), p. 970; State of Haryana v. Smt. Santra , AIR
2000 SC 1888, p. 1895 : (2000) 5 SCC 182 [LNIND 2000 SC 700].
36
(1999) 4 All ER 961 (HL).
37
Ibid , pp. 970. 979, 983.

38
Ibid , pp. 972, 991, 998.

39
(2003) 4 All ER 987 (HL).
40
Parkinson v. St. James Hospital , (2001) 3 All ER 97 (CA).

41

42
Ibid , p. 1895.
43
Shakuntala Sharma v. State of U.P. , AIR 2000 All 219 [LNIND 2000 ALL 22]; Smt. Jyoti Kewat v. State of
M.P. Writ petition 627/2001 D/8-7-2002.
44
See note 41, supra.

45
(2005) 7 SCC 1 [LNIND 2005 SC 646] (para 27) : AIR 2005 SC 3280.
46
Page 63 of 70
CHAPTER IX REMEDIES
See, p. 554, infra .

47
See Rogers Pyatt Shellac Co. v. John King & Co. Ltd ., (1925) ILR 53 Cal 239.
48
Lotus Line P. Ltd. v. State , (1965) 67 Bom LR 429 [LNIND 1965 SC 2] : AIR 1965 SC 1314.
49
Chabbra Corp. Ptc. v. Jag Shakti , (1986) 1 All ER 480, 484 : (1986) AC 337 : (1986) 2 WLR 87 (PC). See
further Caxton Publishing Co. Ltd. v. Sutherland Publishing Co. Ltd ., (1938) 4 All ER 389 : (1939) AC 178
(HL).
50
Ibid.
51
Ibid.
52
Smith Kline & French Laboratories Ltd. v. Long , (1988) 3 All ER 887 : (1989) 1 WLR 1 : (1988) 132 SJ 553
(CA).
53
Hughes v. Quentin , (1838) 8 C & P 703. The measure of damages for the loss of use of a horse when it
had become permanently useless would be the market price of a comparable horse; Jung Bahadur v.
Sunder Lal , AIR 1962 Pat 258 .
54
Owners of the Steamship Medina v. Owners of Lightship Comet (The Medina ), (1900) AC 113 (HL); WEIR,
Case book on Tort, 5th Edn. (pp. 544, 545).
55
WINFIELD & JOLOWICZ, Tort, (12th Edn.) p. 647.
56
Dimond v. Lovell , (2002) 2 All ER 897 (HL); Lagdon v. O'connor , (2004) 1 All ER 277 (HL). See further
text and note 36, p. 208.
57
Baxter v. Gapp (F.W.) & Co ., (1939) 2 KB 271.

58
Swing Castle Ltd. v. Alastair Gibson, (a firm) , (1991) 2 All ER 353 : (1991) 2 AC 223 : (1991) 2 WLR 1091
(HL).
59
C.R. Taylor (Wholesale) Ltd. v. Hepworths Ltd ., (1977) 2 All ER 784 (C.A.); Dominion Mosaics & Tile Co.
Ltd. v. Trafalgar Trucking Co. Ltd ., (1990) 2 All ER 246 (C.A.), pp. 249, 251 : (1989) 139 NLJ 364.
60
Page 64 of 70
CHAPTER IX REMEDIES
Harbutt's Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd ., (1970) 1 All ER 225 (C.A.); Dominion Mosaics
& Tile Co. Ltd. v. Trafalgar Trucking Co. Ltd ., (1990) 2 All ER 246 : (1989) 139 NLJ 364 (C.A.).
61
Ibid.
62
Moore v. Assignment Courier Ltd ., (1977) 2 All ER 842 : (1977) 1 WLR 638 (C.A.); Shearson Lehman
Bros. v. Maclaine Watson & Co ., (1987) 2 All ER 181 : (1987) 1 WLR 480 (C.A.); Union Carbide
Corporation v. Union of India , (1988) MPLJ 540.
63

64
Ibid.
65
AIR 1988 SC 2127, p. 2131 : (1988) 4 SCC 551 [LNIND 1988 SC 411] : 1988 SCC (Cri) 984 [LNIND 1988
SC 411].
66
Ibid.
67
AIR 1993 SC 1230 : (1993) 4 SCC 77.
68
(1994) 3 SCC 430 [LNIND 1994 SC 417] : (1994) 3 JT 225.

69
Pankajbhai Nagjibhai Patel v. The State of Gujarat, AIR 2001 SC 567, p. 571 : (2001) 2 SCC 595 [LNIND
2001 SC 122].
70
Mangilal v. State of Madhya Pradesh , AIR 2004 SC 1280, p. 1283 : (2004) 2 SCC 447, p. 453.
72

73
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. (2007) 6 SCC 528 [LNIND 2007 SC 451] paras 38, 39 :
(2007) 6 JT 204.
74
D. Purushotama Reddy v. K. Sateesh (2008) 8 SCC 505 : AIR 2008 SC 3202.

75
1995 (1) SCC 14 [LNIND 1994 SC 1582] : 1995 SCC (Cri) 7.

76
Page 65 of 70
CHAPTER IX REMEDIES
Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty , AIR 1996 SC 922 : (1996) 7 Scale 228, p. 236 :
(1996) 1 SCC 490 [LNIND 1995 SC 1314].
77
See practice note (1985) 2 All ER 895; Hurditch v. Sheffield Health Authority , (1989) 2 All ER 869 (CA), pp.
872, 873, 874, 875 : (1989) QB 562 : (1989) 2 WLR 827.
78
In Union Carbide Corporation v. Union of India , AIR 1992 SC 248, p. 266, the question of provisional
award was discussed but it was left undecided whether courts in India can make such an award.
79
(2003) 2 SCC 274 [LNIND 2002 SC 768], pp. 282, 283 : AIR 2003 SC 674, p. 682. Followed in Sapna v.
United India Insurance Co. Ltd., (2008) 7 SCC 613 [LNIND 2008 SC 1192] para 12 : AIR 2008 SC 2281.
80
A v. Hoare, (2008) 2 All ER 1 (H.L.).

81
Sears v. Lyons , (1818) 2 Stark 317.

82
See title 1(D)(ii), pp. 209 to 213, ante .

83
Ibid .
84
Mahadev v. Narayan , (1904) 6 Bom LR 123.

85
Australian Broadcasting Corporation v. Lenah Game Meats Pty. Ltd. , (2001) 76 ALJR 1.
86
A.v. B. (a company) , (2002) 2 All ER 545 (CA). See also, p. 434.

87
See s s. 36 to 42 of the Specific Relief Act (XLVII of 1963) as regards the granting or withholding of
injunction. For injunction against Press in respect of a matter pending in Court see :Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd ., AIR 1989 SC 190 :
(1988) 4 SCC 592 [LNIND 1988 SC 613] (Balance between two competing public interests viz. freedom of
press and administration of justice. Test of present and imminent danger applied). For injunction against
agent after termination of agency to prevent interference with plaintiff's possession and business see :
Southern Roadways Ltd., Madurai v. S.M. Krishnan , AIR 1990 SC 673 : (1989) 4 SCC 603 [LNIND 1989
SC 489]. For injunction in favour of the government or a local authority to prevent repeated violations of
criminal law see: Kirkless Metropoliton Boraugh Council v. Wickes Building Supplies Ltd ., (1992) 3 All ER
717 (HL) pp. 723-728 : (1993) AC 227 : (1992) 3 WLR 170; For injunctions against enforcing bank
guarantees, irrevocable letters of credit see: Svenska Handelsbanken v. Indian Charge Chrome , AIR 1994
SC 626 : (1994) 1 SCC 502. For principles governing Anti-suit injunction see Modi Entertainment Network
v. W.S.G. Cricket Pty Ltd. , AIR 2003 SC 1177 : (2003) 4 SCC 341 [LNIND 2003 SC 74].
88
Page 66 of 70
CHAPTER IX REMEDIES
Order 39 , Code of Civil Procedure. For principles applicable see : American Cyanmid v. Ethicon , (1975) 1
All ER 504 : (1975) 2 WLR 316 (H.L.); Hadmor Productions Ltd. v. Hamilton , (1982) 1 All ER 1042 : (1983)
1 AC 191 : (1982) 2 WLR 322 (HL); Attorney General v. Guardian , (1987) 3 All ER 316 (HL); Shankerlal
Debiprasad Rathore v. State of MP , 1978 MPLJ 419; Morgan Stanley Mutual Fund v. Kartickdas, (1994) 4
SCC 225 [LNIND 1994 SC 546] : JT 1994 (3) SC 654 [LNIND 1994 SC 546] (Principles for grant of ex
parte injunction), Municipal Corporation of Delhi v. C.L. Batra , JT 1994 (5) SC 241 [LNIND 1994 SC 705]
(Principles for grant of interim injunction against a municipal corporation restraining it to recover tax); S.M.
Dyechem Ltd. v. Cadbury (India) Ltd. , AIR 2000 SC 2114 : (2000) 5 SCC 573 [LNIND 2000 SC 861]
(Principles for grant of interim injunction in a Trade Mark case); Mahendra and Mahendra paper Mills v.
Mahindra and Mahindra Ltd., AIR 2002 SC 117 : (2002) 2 SCC 147 (Injunction in a Trade Mark case).
Dharwal Industries Ltd. v. M/s. MSS Food Products , AIR 2005 SC 1999 : (2005) 3 SCC 63 [LNIND 2005
SC 203] (interim injunction in an unregistered mark case); Midas Hygine Industries (P.) Ltd. v. Sudhir
Bhatia, (2004) 3 SCC 90 (Interim injunction should normally be granted when there is prima facie an
infringement of trade mark or copyright). Ajay Mohan v. H.N. Rai, (2008) 2 SCC 507 [LNIND 2007 SC 1455]
: AIR 2008 SC 804 (Prima facie case, balance of convenience and irreparable injury to be shown for interim
injunction). For interim mandatory injunction see : Dorale Cawasji Warden v. Coomi Sorab Warden , AIR
1990 SC 867 : (1990) 2 SCC 117 [LNIND 1990 SC 77] ; Redland Bricks Ltd. v. Morris , (1969) 2 All ER 576
(HL); Francis v.Kensington and Chelsia London Borough Council , (2003) 2 All ER 1052, p. 1058 (CA).
89
s. 6. See Chapter XV, title 4(B), p. 405, infra .

90
Ibid ., s. 7.
91
Petrie v. Lamont , (1841) Car & Mar 93, 96. A lessor does not become jointly liable with his lessee for the
latter's tort simply by reason of his being the lessor or by any encouragement of the lessee in the absence
of evidence that he had made himself a party to the tort : Pugh v. Ashutosh Sen , (1928) 56 IA 93; 31 Bom
LR 702.
92
The Koursk , (1924) P. 140; Chainatamano v. Surendranath , ILR (1956) Cut 587 [LNIND 1956 ORI 3].
93
Thompson v. London County Council, (1899) 1 QB 840; Sadler v. G.W. Ry. Co ., (1896) AC 450 : 53 JP
694 : 37 WR 582; Nilmadhub Mookerjee v. Dookeeram Khottah , (1874) 15 Beng LR 161.
94
The mere coincidence of a number of persons doing a series of acts whereby the plaintiff is injured will not
make them joint tort-feasors. It must be shown that they acted concurrently : Subbayya v. Verayya , (1935)
MWN 1043, 42 LW 17.
95
Hume v. Oldacre , (1816) 1 Stark 351 ; Blair and Sumner v. Deakin, (1887) 57 LT 522; Sutton v. Clarke ,
(1815) 6 Taunt 29. See Kamala Prosad Sukul v. Kishori Mohan Pramanik , (1927) ILR 55 Cal 666; Calico
Printers Association v. Mitsubishi Shoji Kaisha, Limited , (1938) 40 Bom LR 661; Kanhaiyalal v.
Chimanbhai, (1954) 3 MLR 379.
96
De Bodreugnam v. Le Arcedekin , (1302) YB 30, Edw I fo 106; Ajoodhya v. Laljee , (1873) 19 WR 218;
Shama Sunkur v. Sreenath , (1869) 12 WR 354; Harihar Pershad v. Bholi Pershad, (1907) 6 CLJ 383 ;
Page 67 of 70
CHAPTER IX REMEDIES
Coercion is no defence : Ganesh Singh v. Ram Raja , (1869) 3 Beng LR (PC) 44; Biresshur Dutt
Chowdhury v. Baroda Prosad Ray Chowdhury , (1906) 15 CWN 825; Gajo Singh v. Amrit Narain, (1921) 2
PLT 234; Ahsanali v. Kazi Syed Hifazat Ali , ILR (1956) Nag 378.
97
It means negligence of two or more persons other than the victim of the negligence, when victim of the
negligence is also partly responsible, it is a case of contributory negligence : Pujamma v. G. Rajendra
Naidu , AIR 1985 Mad 109, p. 112.
98
Palghat Coimbatore Transport Co. Ltd. v. Narayanan , ILR (1939) Mad 306. Prasani Devi v. State of
Haryana, 1973 ACJ 531 (P&H); Sushma Mitra v. M.P. State Road Transport Corporation , (1974) ACJ
(MP), pp. 91, 92; Hira Devi v. Bhaba Kanti Das , AIR 1977 Gau 31 (F.B.); Pujamma v. G. Rajendra Naidu ,
AIR 1988 Mad 109 [LNIND 1987 MAD 104], p. 112.
1
(2008) 3 SCC 748 [LNIND 2008 SC 227] para 6 : (2008) 3 SCC 748 [LNIND 2008 SC 227]. See further
Pujamma v. G. Rajendra Naidu, AIR 1988 Mad 109 [LNIND 1987 MAD 104] p.112.
2
Chapman v. Ellesmere (Lord), (1932) 2 KB 431 : 146 LT 538.

3
Clark v. Newsam , (1847) 1 Ex. 131, London Association for Protection of Trade v. Green Lands Ltd .,
(1916) 2 AC 15 : 114 LT 434; Greenlands Ltd. v. Wilmshurst etc ., (1913) 3 K.B. 507 : 109 LT 487; M.P.
State Road Transport Corporation v. Abdul Rahman , AIR 1997 MP 248 [LNIND 1997 MP 5], p. 253 (also
see cases referred to therein). See further cases in note 98, supra . The Punjab and Haryana High Court
holds that Motor Accidents Claims Tribunal can apportion compensation amongst tort-feasors : Narinder
Pal Singh v. Punjab State , AIR 1989 P&H 82.
4
PER CRESWELL, J., in Thorogood v. Bryan, (1849) 8 CB 115, 121; Clark v. Newsam , (1847) 1 Ex 131.
5
Subbayya v. Verayya , (1935) MWN 1043, 42 Mad LW 17.

6
Harihar Pershad v. Bholi Pershad, (1907) 6 CLJ 383.

7
Arneil v. Paterson, (1931) AC 560.

8
Palghat Coimbatore Transport Co. Ltd v. Narayanan , ILR (1939) Mad 306. See further other cases in note
98, supra .
9
Bryanstan Finance Ltd. v. de vires, (1975) 2 All ER 609 (CA), pp. 624, 625 : (1975) 2 WLR 718 : 119 SJ
287 (LORD DIPLOCK).
10
Page 68 of 70
CHAPTER IX REMEDIES
Ibid.
11
CLERK & LINDSELL, Torts (15th edition) pp. 357, 358.
12
Jameson v. Central Electricity Generating Board, (1999) 1 All ER 193 (HL), p. 203 : (2000) 1 AC 455.
13
1605 Yelv 67 : 80 ER 47.
14
Duck v. Mayeu, (1892) 2 QB 511, 513 : 62 LJQB 92; Thurman v. Wild , (1840) 11 A & F 453 : 3 P&D 489.
15
CLERK & LINDSELL on Torts, 15th Edn., p. 142 (2.54).
16
Duck v. Mayeu, ibid; Rice v. Reed, (1900) 1 QB 54 : 81 LT 410; Hutton v. Eyre , (1815) 6 Taunt 289. See,
to the same effect, Ram Kumar Singh v. Ali Hussain , (1909) ILR 31 All 173; Kamala Prasad Sukul v.
Kishori Mohan Pramanik , (1927) ILR 55 Cal 666; Pollachi Town Bank Ltd. v. Subramania Ayyar , (1933) 39
LW 114.
17
Cocke v. Jennor , (1615) Hob 66 See, to the same effect, Kamala Prosad Sukul v. Kishori Mohan Pramanik
, sup .; Basharat Beg v. Hiralal , (1932) ALJR 497 ; Devendrakumar Patni v. Nirmalabai, (1945) NLJ 158.
18
Har Krishna Lal v. Qurban Ali , (1941) ILR 17 Luck 284.

19
Thompson v. Australian Television Pty. Ltd., (1997) 71 ALJR 131 (Australia).

20
Khushro S. Gandhi v. N.A. Guzdar , AIR 1970 SC 1468, p. 1474 : (1969) 1 SCC 358 [LNIND 1968 SC 360]
: (1969) 2 SCR 959 [LNIND 1968 SC 360]. For somewhat similar Australion case see Baxter v. O Bacelo
Pty Ltd. , (2001) 76 ALJR 114.
21
1605 Yelv 67 : 80 ER 47.
22
Khushro S. Gandhi v. N.A. Guzdar , supra.

23
Ibid, p. 1475.
24
Jamesan v. Central Electricity Generating Board , (1999) 1 All ER 193; (2000) 1 AC 455 : (1999) 2 WLR
141 (HL).
25
Norwich Pharmacal Co. v. Customs and Excise Comrs ., (1973) 2 All ER 943 (HL), p. 948.
Page 69 of 70
CHAPTER IX REMEDIES
26
Ibid.
27
X Ltd. v. Morgan Grampian (Publishers) Ltd ., (1990) 2 All ER 1 (HL), p. 6 : (1991) 1 AC 1 : (1990) 2 WLR
1000.
28
(1799) 8 TR 186; Sreeputty Roy v. Loharam Roy , (1867) 7 WR 384, FB; Parbhu Dayal v. Dwarka Prasad ,
(1931) ILR 54 All 371.
29
25 & 26 Geo V. c. 30, s. 6 (1) (c). See now section (1) of the Civil Liability (Contribution) Act, 1978.
30
Royal Brompton Hospital NHS Trust v. Hammond, (2002) 2 All ER 801 (HL).
31
25 & 26 Geo V. c. 30, s. 6 (2). See now section (1) of the Civil Liability (Contribution) Act, 1978.
32
Burnham v. Boyer and Brown , (1936) 2 All ER 1165.

33
Harnath v. Haree Singh , (1872) 4 NWP 116; Manja v. Kadugochen , (1883) ILR 7 Mad 89; Gobind
Chunder Nundy v. Srigobind Chowdhry , (1896) ILR 24 Cal 330; Ramratan Kapali v. Aswini Kumar Dutt ,
(1910) ILR 37 Cal 559, 569. See, to the same effect, Golam Hossein v. Imam Bux , (1866) PR No. 32 of
1866, in which contribution for damages paid for libel was sought for. There is a right of contribution
between joint defendants in respect to the costs awarded against them and paid by one of them in such
cases: Mahabir Prasad v. Darbhangi Thakur , (1919) 4 PLJ 486; Bhagwan Das v. Rajpal Singh , (1920) 24
OC 148; Karya Singh v. Shiva Ratan Singh , (1925) 29 OC 7. See Ram Prasad v. Arja Nand , (1889) 10
AWN 161, which decides that whatever the rights and liabilities of joint tort-feasors inter se might be before
a decree was passed, there was a right of contribution afterwards, the matter having passed in rem
judicatum . In the case of decree for mesne profits, a person who had to satisfy the entire decree can
recover his share from his codefendants: Sheo Ratan Singh v. Karan Singh , (1924) ILR 46 All 860. See
Parbhu Dayal v. Dwarka Prasad , (1931) ILR 54 All 371. Where as a result of wilful wrongdoing on the part
of two persons, they become jointly and severally liable to pay a penalty to the State, and such penalty is
recovered only from one person, he cannot maintain a suit against the other for contribution: Vedachala v.
Rangaraju , AIR 1960 Mad 457 [LNIND 1959 MAD 124], 73 MLW 315, (1960) 1 MLJ 445, ILR (1960) Mad
455 [LNIND 1959 MAD 124].
34
Siva Panda v. Jujusti Panda , (1901) ILR 25 Mad 599; Nihal Singh v. The Collector of Bulandshahr , (1916)
ILR 38 All 237; Sheo Ratan Singh v. Karan Singh , (1924) ILR 46 All 860; Bhagwan Das v. Rajpal Singh ,
(1920) 24 OC 148; Karya Singh v. Shiva Ratan Singh , (1925) 29 OC 7; Rajagopala Iyer v. Arunachala Iyer
, (1924) MWN 676; Kamala Prasad Sukul v. Kishori Mohan Pramanik , (1927) ILR 55 Cal 666, 675;
Basantakumar Basu v. Ramshanker Ray , (1931) ILR 59 Cal 859; Yegnanarayana v. Yagannadha Rao ,
(1931) MWN 667, 34 Mad LW 618.
35
Kishna Ram v. Rakmini Sewak Singh , (1887) ILR 9 All 221; Hari Saran Maitra v. Jotindra Mohan Lahiri ,
(1900) 5 CWN 393; Suput Singh v. Imrit Tewari , (1880) ILR 5 Cal 720; Shakul Kameed Alim Sahib v. Syed
Page 70 of 70
CHAPTER IX REMEDIES
Ebrahim Sahib , (1902) ILR 26 Mad 373; Jhibu v. Balaji , (1923) 19 NLR 75; Parbhu Dayal v. Dwarka
Prasad , (1931) ILR 54 All 371; M/s. Dedha & Co. v. M/s. Paulson Medical Stores , AIR 1988 Kerala 233
[LNIND 1987 KER 362], p. 235. Express promise of indemnity is void in such cases: Yegnanarayana v.
Yagannadha Rao , (1931) MWN 667, 34 Mad LW 618.
36
Khushalrao v. Bapurao , ILR (1942) Nag 1; Nani Lal De v. Tirthlal De , ILR 1953 1 Cal 249 . See also
Krishnrao v. Deorao , AIR 1963 MP 49 [LNIND 1961 MP 23], where ILR (1942) Nag 1 is relied upon.
37
Dharni Dhar v. Chandra Shekhar , ILR (1952) 1 All 759, FB.

38
M/s. Dedha & Co. v. M/s. Paulson Medical Stores , AIR 1988 Kerala 233 [LNIND 1987 KER 362], p. 235.
See also text and note 36, supra .
39
M.C. Mehta v. Union of India, (1987) 1 SCC 395 [LNIND 1986 SC 539], p. 408 : AIR 1987 SC 965. For a
case under Art. 226, see Smt. Kalavati v. State of Himachal Pradesh , AIR 1989 SC 5.
40
Ibid .
41
Ibid. For example, see Rudul Shah v. State of Bihar , AIR 1983 SC 1036 : 1086 : (1983) 4 SCC 141 [LNIND
1983 SC 181] ; Bhim Singh v. State of J&K, (1985) 4 SCC 677 [LNIND 1985 SC 350] : AIR 1986 SC 494.
For a discussion of these and other cases see Chapter III, title 8(B).
42
See Chapter (III) title 8(B).

43
M.C. Mehta v. Union of India, supra , p. 406; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
[LNIND 1983 SC 564] : AIR 1984 SC 802 : S.P. Gupta v. Union of India, (1981) Supp SCC 87 : AIR 1982
SC 149; PUDR v. Union of India, (1982) 3 SCC 235 [LNIND 1982 SC 135] : AIR 1982 SC 1473.
End of Document
CHAPTER X CLASSIFICATION OF TORTS
TORTS are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of
mischief. 1 All writers on the law of torts unanimously agree that it is difficult to classify torts with scientific
accuracy. Some writers sub-divide one portion of the whole class of wrongful acts on one principle, and another
portion on another principle. To frame a scheme of classification which shall be at once comprehensive, accurate
and easily intelligible, is, it seems, a problem not yet solved; and scarcely two writers have agreed to one and the
same or a uniform scheme. 2 The classification adopted in this work is based on the lines of SIR HENRY FINCHE'S
view of the English law. “Our Law,” he says, “regards the person above his possession—life and liberty most—
freehold and inheritance above chattels, and chattels real above personal. “Accordingly torts relating to person
come first; those affecting property—real and then personal—second; and those concerning person and property in
common, third. [Vide Discourse of Law]
1
PER, PRATT C. J. in Chapman v. Pickersgill , (1762) 2 Wils 145.

2
In POLLOCK'S Law of Torts, (15th edn. p. 6) torts are classified as follows:—
GROUP A
Personal Wrongs
1 Wrongs affecting safety and freedom of the person: Assault; battery; false imprisonment.
2 Wrongs affecting personal relations in the family : Seduction; enticing away of servants.
3 Wrongs affecting reputation: Slander and libel.
4 Wrongs affecting estate generally : Deceit; slander of title; fraudulent competition by colourable imitation,
etc.; malicious prosecution; conspiracy.
GROUP B
Wrongs to Property
1 Trespass:—
(a) to land.
(b) to goods.
Conversion and unnamed wrongs ejusdem generis.
Disturbance of easements, etc.
2 Interference with right analogous to property, such as private franchises, patents, copyrights, trademarks.
GROUP C
Wrongs to Person, Estate and Property Generally
1 Nuisance.
2 Negligence.
Page 2 of 2
3 Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and
custody of dangerous things, and to the exercise of certain public callings.
Body Assault
Battery
Mayhem
I. Person : and may relate to False Imprisonment
Reputation Libel
Slander.
Malicious Prosecution
Freedom and Malicious Civil Action
Reputation Abuse of Legal Process.
Domestic and other Marital Rights
Miscellaneous rights Parental Rights
Rights to Service.
Contractual rights
Intimidation
Conspiracy
Trespass
Trespass ab initio
Immovable property Dispossession
Reversionary Rights
Waste
Rights of Easement and
Natural Rights.
TORTS may affect II. Property : and may Movable property
relate to Trespass Trespass ab
initio
Conversion
Detention.
Immovable or Slander of title
movable property Slander of goods
Maintenance
Incorporeal Patent
Personal Copyright
property Trademark
Tradename.
Negligence
III. Person and property Nuisance
Fraud.
Negligent mis-statement
End of Document
CHAPTER XI TRESPASS TO PERSON
1. INTRODUCTION 1
The tort of negligence 2 though of recent origin, it was recognised nearly fifty years ago, is growing so fast that it is
eclipsing other torts under a general principle towards which it is moving that it is actionable unreasonably to cause
foreseeable harm to another. Trespass is one of the torts which has partly survived. Its principle was that any direct
invasion of a protected interest from a positive act was actionable subject to justification. If the invasion was indirect
though foreseeable or if the invasion was from an omission as distinguished from a positive act, there could be no
liability in trespass though the wrong-doer might have been liable in some other form of action. Recent development
has led to further limitation. If the invasion is unintended, though direct and resulting from a positive act, there will
still be no liability if the conduct of the defendant was reasonable, or even if it was unreasonable, if the invasion was
an unforeseeable consequence. 3 Reference in this context is necessary to two decisions namely Fowler v.
Lanning 4 and Letang v. Cooper . 5 In the former case, the plaintiff claimed damages for trespass to the person
and the statement of claim alleged laconically that “the defendant shot the plaintiff” on a particular date at a
particular place. In holding that the statement of claim did not disclose a cause of action, DIPLOCK, J. held that
trespass to person does not lie if the injury to the plaintiff, although the direct consequence of the act of the
defendant was caused unintentionally and without negligence on his part, that the onus of proving intention or
negligence lies on the plaintiff and that he must allege either intention on the part of the defendant, or, if he relies
upon negligence, he must state the facts which he alleges constitute negligence. In Letang v. Cooper 6 the facts
were that the plaintiff while she was sunbathing was run over by a car driven negligently by the defendant causing
injury to her legs. More than three years after the incident the plaintiff brought an action against the defendant for
damages for loss and injury caused by (1) negligence of the defendant in driving the motor-car and (2) the
commission by the defendant of a trespass to the person. The claim for negligence was admittedly barred by
statute after three years and the question before the Court of Appeal was whether the plaintiff could succeed in an
action for trespass. LORD DENNING, M.R. in deciding against the plaintiff expressed his approval of Fowler v.
Lanning 7 and went one step further in holding that when the injury is not inflicted intentionally but negligently, the
only cause of action is negligence and not trespass. The unintended invasions have thus been completely eclipsed
by the tort of negligence and what survives now under trespass are intended invasions. Here the rules of trespass
remain unchanged. There are two important rules : (1) that it is for the defendant to plead and prove justification
and not for the plaintiff to show that the defendant's conduct was unreasonable; and (2) that damage is not an
essential element and need not be proved by the plaintiff. 8 This Chapter is confined to intentional trespass to the
person, the three chief forms of which are assault, battery and false imprisonment. The importance of trespass lies
in that it can be used for protection of one's liberty and vindication of constitutional rights. “Trespass trips up the
zealous bureaucrat, the eager policeman and the officious citizen.” 9
2. ASSAULT AND BATTERY

Page 2 of 23
An assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and
intention to do the act. Actual contact is not necessary in an assault, though it is in a battery. But it is not every
threat, when there is no actual personal violence, that constitutes an assault; there must, in all cases, be the means
of carrying the threat into effect. 10 “Any gesture calculated to excite in the party threatened a reasonable
apprehension that the party threatening intends immediately to offer violence, or, in the language of the Indian
Penal Code, is ‘about to use criminal force’ to the person threatened, constitute, if coupled with a present ability to
carry such intention in execution, an assault in law.”11 The intention as well as the act makes an assault.
Therefore, if one strikes another upon the hand, or arm, or breast in discourse, it is no assault, there being no
intention to assault; but if one, intending to assault, strikes at another and misses him, this is an assault; so if he
holds up his hand against another, in a threatening manner, and says nothing, it is an assault. 12 The menacing
attitude and hostile purpose go to make the assault unlawful, e.g. presenting a loaded pistol at any one, 13 or
pointing or brandishing a weapon at another with the intention of using it, 14 or riding after a person and obliging
him to seek shelter to avoid being beaten. 15 Mere words do not amount to an assault. But the words which the
party threatening uses at the time may either give to his gestures such a meaning as may make them amount to an
assault, or, on the other hand, may prevent them from being an assault. For instance, where A laid his hands on his
sword, and said to Z, “if it were not assize time I would not take such language from you,” 16 this was held not to be
an assault, on the ground that the words showed that A did not intend then and there to offer violence to Z (or, in
the language of the Indian Penal Code, was not ‘about to use criminal force’ to Z). Here there was the menacing
gesture, showing in itself an intention to use violence, there was the present ability to use violence, but there were
also words which would prevent the person threatened from reasonably apprehending that the person threatening
was really then and there about to use violence.17
A battery is the intentional and direct application of any physical force to the person of another. It is the actual
striking of another person, or touching him in a rude, angry, revengeful, or insolent manner. In Cole v. Turner , 18
HOLT, C.J., declared: “First, that the least touching of another in anger is a battery. Secondly, if two or more meet
in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no
battery. Thirdly, if any of them uses violence against the other, to force his way in a rude inordinate manner, it will
be a battery; or any struggle about the passage to that degree as may do hurt will be a battery.” ROBERT GOFF
L.J. redefined battery as meaning an intentional physical contact which was not ‘generally acceptable in the
ordinary conduct of daily life’. 19 This definition was accepted by the House of Lords in Wainwright v. Home Office.
20
A battery includes an assault which briefly stated is an overt act evidencing an immediate intention to commit a
battery. It is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. It
cannot mean merely an injury inflicted by an instrument held in the hand, but includes all cases where a party is
struck by any missile thrown by another. It does not matter whether the force is applied directly to the human body
itself or to anything coming in contact with it. Thus to throw water at a person is an assault; if any drops fall upon
him it is a battery. 21 So too, of riding a horse at a person is an assault; riding it against him is a battery. Pulling
away a chair, as a practical joke, from one who is about to sit on it is probably an assault until he reaches the floor,
for while falling he reasonably expects that the withdrawal of the chair will result in harm to him. When he comes in
contact with the floor, it is a battery.” 22 The term assault is commonly used to include battery. 23 But every laying
on of hands is not a battery. The party's intention must be considered. 24 Touching a person, for instance, so as
merely to call his attention, is not a battery. 25 A friendly clap on the back of a person may be excused on the
ground of implied consent, but not the hostile or rude hand.
In Stephens v. Myers 26 the plaintiff was the chairman of a parish meeting. The defendant having been very
vociferous, a motion was made and carried by a large majority that he should be turned out. Upon this the
defendant said he would rather pull the chairman out of the chair than be turned out of the room, and immediately
advanced with his fist clenched towards him; he was thereupon stopped by the churchwarden, who sat next but one
to the chairman, at a time when he was not near enough for any blow he might have meditated to reach the plaintiff;
but the witnesses said that it seemed to them that he was advancing with an intention to strike the chairman. The
jury found for the plaintiff with one shilling damages. TINDAL, C. J. said: “It is not every threat, when there is no
actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat
into effect. The question I shall leave to you will be, whether the defendant was advancing at the time, in a
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threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman,
if he had not been stopped; then, though he was not near enough at the time to have struck him, yet if he was
advancing with that intent, I think it amounts to an assault in law. If he was so advancing that within a second or
two, he would have reached the plaintiff, it seems to me it is an assault in law.” And in Read v. Coker 27 the
defendant told the plaintiff to leave the premises in occupation of the plaintiff. When the plaintiff refused the
defendant collected some of his workmen who mustered round the plaintiff, tucking up their sleeves and aprons and
threatened to break the plaintiff's neck if he did not leave. The plaintiff left and brought an action of trespass for
assault. In holding in favour of the plaintiff, JERVIS, C. J., observed: “The facts here clearly showed that the
defendant was guilty of assault. There was a threat of violence exhibiting an intention to assault, and a present
ability to carry the threat into execution.” In contrast, in Bavisetti Venkata Surya Rao v. Nandipati Muttayya , 28 the
defendant who was a village Munsiff threatened to distrain the ear-rings which the plaintiff was wearing for recovery
of land revenue. The village goldsmith was called on which someone paid the land-revenue on behalf of the plaintiff
and the defendant left quietly. As the defendant said nothing after arrival of the goldsmith, it was held that it could
not be said that the plaintiff was put in fear of immediate or instant violence and, therefore, the defendant could not
be made liable for assault.
Battery requires actual contact with the body of another person so a seizing and laying hold of a person so as to
restrain him; 29 spitting in the face, 30 throwing over a chair or carriage in which another person is sitting, 31
throwing water over a person, 32 striking a horse so that it bolts and throws its rider; 33 taking a person by the
collar; 34 causing another to be medically examined against his or her will; 35 are all held to amount to battery.
Where the plaintiff, who had purchased a ticket for a seat at a cinema show, was forcibly turned out of his seat by
the direction of the manager, who was acting under a mistaken belief that the plaintiff had not paid for his seat, it
was held that the plaintiff was entitled to recover substantial damages for assault and battery. The purchaser of a
ticket for a seat at a theatre or other similar entertainment has a right to stay and witness the whole of the
performance, provided he behaves properly and complies with the rules of the management. 36
If the defendant intended to assault, in other words, if he had the capacity to understand the nature of his act, and
he struck the plaintiff, he would be liable for assault and battery even if he did not know, because of mental disease,
that what he was doing was wrong. 37 But if the mental disease is so severe that the defendant's act of striking the
plaintiff was not a voluntary act at all, he would not be liable. 38
A civil action lies for an assault, and criminal proceedings may also be taken against the wrong-doer. The fact that
the wrong-doer has been fined by a criminal Court for assault is no bar to a civil action against him for damages. 39
The previous conviction of the wrong-doer in a criminal Court is no evidence of assault. The factum of the assault
must be tried in a civil Court, 40 which is not bound by conviction or acquittal in criminal proceedings. 41 A plea of
guilty in a criminal Court may, but a verdict of conviction cannot, be considered in evidence in a civil Court. 42
3. FALSE IMPRISONMENT
3(A) What constitutes false imprisonment
False imprisonment is a total restraint of the liberty of a person, for, however, short a time, without lawful excuse.
43 The word ‘false’ means ‘erroneous’ or ‘wrong’. It is a tort of strict liability and the plaintiff has not to prove fault
on the part of the defendant. 44
To constitute this wrong two things are necessary:—

(1) The total restraint of the liberty of a person.
The detention of the person may be either (a) actual, that is, physical, e.g. laying hands upon a person; or
(b) constructive, that is, by mere show of authority, e.g. by an officer telling any one that he is wanted and
making him accompany. 45
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(2) The detention must be unlawful.

The period for which the detention continues is immaterial. But it must not be lawful. 46 “Every confinement
of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks,
or even by forcibly detaining one in the public streets.” 47 In the leading case of Bird v. Jones ,
COLERIDGE, J., said : “A prison may have its boundary large or narrow, visible and tangible, or, though
real, still in the conception only; it may itself be moveable or fixed : but a boundary it must have; and that
boundary the party imprisoned must be prevented from passing; he must be prevented from leaving that
place, within the ambit of which the party imprisoning would confine him, except by prison-breach. Some
confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom : it is
one part of the definition of freedom to be able to go whithersoever one pleases; but imprisonment is
something more than the mere loss of this power; it includes the notion of restraint within some limits
defined by a will or power exterior to our own.” 48 If one compels another to stay in any given place against
his will, he imprisons that other just as much as if he locked him up in a room; the compelling a man to go in
a given direction against his will may amount to imprisonment; but if one man merely obstructs the passage
of another in a particular direction, whether by threat of personal violence or otherwise, leaving him at
liberty to stay where he is or to go in any other direction he pleases, he cannot be said thereby to imprison
him. Imprisonment is a total restraint of the liberty of the person, for however short a time, and not a partial
obstruction of his will whatever inconvenience it may bring on him. 49
Measures of crowd control adopted by the police resulting in the detention of a crowd, which also included
some innocent persons, to prevent breach of peace, and risk of injury to persons or property did not offend
Article 5(1) of the European Human Rights Convention, which guarantees everyone right to liberty and
security of person and did not also amount to false imprisonment actionable under common law, so long as
the measures adopted are taken in good faith, are proportionate and are enforced for no longer than is
reasonably necessary. 50
It is not necessary that a man's person should be touched. Placing a party under the restraint of an officer,
who holds a writ for his arrest, is an imprisonment, without proceeding to actual contact. 51 Can a person
be imprisoned without his knowing it? In Merring v. Graham White Aviation Co. Ltd ., 52 the answer to this
question was in the affirmative. In this case the plaintiff was suspected of stealing a keg of varnish from the
aviation works of the defendant company where he was employed. He was asked by two of the aviation
works’ police to go to the defendant's office. He assented and they went to the company's office by a
shortcut pointed out by him. He was invited to the waiting room and the two policemen remained
somewhere in the neighbourhood. In an action for false imprisonment it was held that the defendant
company was liable because the plaintiff was not a free man from the moment that he came under the
influence of the two works’ police. LORD ATKIN said : “A person can be imprisoned while he is asleep,
while he is in a state of drunkenness, while he is unconscious, and while he is lunatic. Those are cases
where the person might properly complain if he were imprisoned, though the imprisonment began and
ceased while he was in that state. Of course, the damages might be diminished and would be affected by
the question whether he was conscious of it or not.” 53 But in an earlier case, Herring v. Boyle , 54 which
was not referred in Merring's case, the Court of Exchequer held that there was no liability for false
imprisonment when a student was improperly detained by the school-master during holidays in the school
because his parents had not paid the fees for the student did not know of the restraint. In holding so,
BOLLAND B. observed: “In the present case, as far as we know, the boy may have been willing to stay; he
does not appear to have been cognisant of the restraint, and there was no evidence of any act whatsoever
done by the defendant in his presence.” 55 Merring's case has been criticised by GOODHART 56 but is
supported by PROSER. 57 Merring's case has been approved and the correctness of Herring's case
doubted by the House of Lords in Murray v. Minister of Defence , 58 where it has been held that false
imprisonment is actionable without proof of special damage and so it is not necessary for a person
unlawfully detained to prove that he knew that he was being detained or that he was harmed by his
detention. In the context of a mentally unsound person detained in a hospital the court of appeal observed:
“A person is detained in law if those who have control over the premises in which he is, have the intention
that he shall not be permitted to leave those premises and have the ability to prevent him from leaving.” 59
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A person who is unaware that he has been imprisoned and who has suffered no harm can normally expect
to recover nominal damages only. 60
A person is not under imprisonment after his release on bail. 61
A person who is lawfully arrested and detained in a prison or a convict who is lawfully committed to prison
can not sue for false imprisonment if he is held under physical conditions so intolerable that his health
suffers 62 but he will have a public law remedy of judicial review and a private law remedy in negligence.
63 In India the prisoner in such cases may be able to avail of the public law remedy for violation of his
fundamental right under Article 21 which has been very widely construed. 64 It has been held that the
person detaining the plaintiff in accordance with the state of the law at that time as laid down by the courts
may yet be held liable for false imprisonment if that state of the law is later altered by the courts on review
and it is found that the plaintiff ought to have been released earlier to the date when he is released. This is
so because the tort of false imprisonment is of strict liability and it is no defence that the defendant took
reasonable case and acted in good faith. 65
Insisting upon going on footway .—In Bird v. Jones 66 a part of a bridge, generally used as a footway, was
appropriated for seats to view a boat-race. The plaintiff insisted upon passing along the part so
appropriated, and attempted to climb over the enclosure. The defendant pulled him back but the plaintiff
succeeded in climbing over. Two policemen were then stationed by the defendant to prevent him from
passing onwards in the direction in which he wished to go. The plaintiff was told to go back into the carriage
way and proceed to the other side of the bridge, if he pleased. The plaintiff refused to do so, and remained
where he was so obstructed, about half an hour. It was held that this was no imprisonment.
Lawful detention .—A woman suspected of theft in a large department store was arrested outside by store
detectives and taken back into the shop where the managing director considered the case and, having
decided to prosecute, immediately, sent for the police officers to whom she was given in charge. It was held
that, inasmuch as she was not detained beyond a reasonable time for the managing director to make his
decision, the owners of the shop were not liable in damages for false imprisonment. 67
The plaintiff paid a penny on entering a wharf to the defendants to stay there till the boat should start and
then be taken by the boat to the other side. Then the plaintiff changed his mind and wished to go back. The
rules as to the exit from the wharf by the turnstile required a penny for any person who went through. This,
the plaintiff refused to pay, and he was by force prevented from going back through the turnstile. He then
claimed damages for assault and false imprisonment. It was held that the defendants were not liable as the
toll imposed was reasonable and they were entitled to resist a forcible evasion of it. 68 A miner descended
a coal-mine at 9.30 a.m. for the purpose of working therein. He was entitled to be raised to the surface at
the conclusion of his shift at 4 p.m. On arriving at the bottom of the mine he was ordered to do certain work
which he wrongfully refused to do and at 11 a.m. he requested to be taken to the surface in a lift. His
employers refused to permit him to use the lift until 1.30 p.m. although it had been available for the carriage
of men to the surface from 1.10 p.m and in consequence he was detained in the mine against his will for
twenty minutes. In an action for damages for false imprisonment, it was held that, on the principle of volenti
non fit injuria , the action could not be maintained. 69
Under Government orders the ex-Maharaja of Nabha was restricted in his movements to the municipal
limits of Kodaikanal. The Maharani was to leave Kodaikanal for Madras in a motor-car, but the
Superintendent of Police was wrongly informed that the ex-Maharaja was going with his family to Madras.
He telephoned to a Sub-Inspector to prevent the ex-Maharaja from leaving Kodaikanal. The Sub-Inspector
misunderstood the message and took it to be a direction to prevent the Maharani from leaving Kodaikanal.
When the Maharani came with her daughter by car to the Kodaikanal railway station to leave for Madras by
train, the Sub-Inspector requested her not to board the train which had arrived and posted two constables
near the railway compound to prevent her car from being taken out of the compound. In a suit for damages
by the Maharani and her daughter alleging that the acts of the police officers were purported to be done by
them in their official capacity and were quite irregular and without justification, it was held that no wrongful
confinement could be said to have taken place. The offences of wrongful restraint or wrongful confinement
are offences affecting the human body and cannot be said to have been committed if a person is not
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himself restrained or confined but the liberty of going in the conveyance to which he wishes to go or of
taking the article which he wishes to carry and without which he is not willing to proceed is denied to him.
70
3(B) Who is liable?
A person may be liable for false imprisonment not only when he directly arrests or detains the plaintiff, but also
when he was “active in promoting or causing” the arrest or detention. 71 Apart from cases where liability can be
fastened vicariously when the wrong is committed by a servant or agent, 72 liability can also arise when arrest or
detention is procured through the instrumentality of some officer. In Rafael v. Verelst , 73 the defendant who was
Governor of Bengal was held liable for false imprisonment of the plaintiff, an Armenian trader in Oudh, who was
arrested and sent to Calcutta by the Nawab of Oudh on invitation of the defendant for the Nawab, though a
sovereign, acted as “a mere machine—an instrument and engine of the defendant” whom he did not dare to offend.
A distinction in this context is made between cases where arrest is effected by a ministerial officer without
intervention of a Court and cases where a judicial act intervenes before the arrest is made. In the former class of
cases if the defendant laid a charge on which it was the duty of the constable to arrest, he is clearly liable. 74 The
defendants by their agents gave the plaintiff into the custody thinking that the plaintiff was guilty of theft. The agent
signed the charge-sheet and in his evidence stated “I did give him in charge.” It was held that the defendants were
liable for false imprisonment. 75 If a person gets another arrested by police on a false complaint, he is liable for
damages for false imprisonment. 76 In all cases where a person is arrested by Police on a complaint made by
another person the question to be examined is whether the person making the complaint had merely given
information to a Police authority on which that authority could act or not as it saw fit or whether he himself was
instigator, promoter and active inciter of the arrest, and imprisonment. 77 In the former class of cases the person
giving the information would not be liable whereas in the latter class of cases he would be liable. 78 Thus in a case
where the plaintiff was arrested on a charge of theft on a bona fide but wrong information given by a shop detective
and where the police officers gave evidence that they had exercised their own judgment in arresting the plaintiff, the
shop detective and his master the shop-owner were not held liable for false imprisonment. 79 Where the defendant
makes a complaint to a Judicial Officer and the plaintiff is taken into custody on orders of the judicial officer, the
defendant is not liable for false imprisonment although he may be liable for malicious prosecution. “The party
making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in
motion, but a judicial officer. The opinion and judgment of a Judicial Officer are interposed between the charge and
the imprisonment.” 80 Therefore, when the plaintiff is arrested without a warrant and produced before a Magistrate
who remands him in custody, his remedies for detention before and after remand are different. For detention prior to
remand he can sue in trespass for false imprisonment whereas for detention after remand, he can sue for malicious
prosecution. 81 When a police officer arrests a person erroneously named in a warrant he is not liable for false
imprisonment as his only duty is to execute the warrant as it is an its face. 78a When a wrong person is arrested
and imprisoned under a decree to which he was not a party, the person setting the Court in motion is not liable for
false imprisonment. 82 Similarly, when a Magistrate grants a warrant on which the party charged in a complaint is
arrested, the party laying the complaint is not liable for false imprisonment although the case is one in which the
Magistrate has no jurisdiction to act. 83 But when the complainant not content by merely taking formal steps for
moving the Court participates in the arrest by personal intervention, he will be liable for false imprisonment. 84 So
when the complainant having accompanied the constable charged with the execution of the warrant, pointed out to
him the person to be arrested, it was held that this was evidence of participation in arrest making him liable for false
imprisonment. 85
There is a real distinction between a suit for false imprisonment and a suit for abuse of process of the Court of
which malicious prosecution is the most important form. In the former once the arrest is established, the burden to
prove justification lies on the defendant who made or caused the arrest. 86 But in the latter, the burden to prove
want of reasonable and probable cause as also malice lies on the plaintiff. 87 The defendant is thus in a more
advantageous position in a suit for abuse of process of the Court as compared to a suit for false imprisonment.
3(C) Arrest by Public Officer

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Section 41(1) of the Code of Criminal Procedure, 1973 provides that a Police Officer may arrest a person “who has
been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible
information has been received or a reasonable suspicion exists of having been so concerned.” The existence of a
reasonable suspicion that the person to be arrested is concerned in any cognizable offence is the minimum
requirement before an arrest can be made by a police officer.88 No person who is arrested shall be detained in
custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right
to consult, and to be defended by, a legal practitioner of his choice. 89 Every person who is arrested and detained
in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest excluding the
time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be
detained in custody beyond the period without the authority of a Magistrate. 90
“An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the
individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force
to prevent the individual from going where he may want to go. It does not occur when he stops an individual to
make inquiries.” 91 Arrest once made continues until terminated by release on bail or otherwise or by an order of
remand passed by a Magistrate. As observed by LORD DIPLOCK; “Arrest is a continuing act: it starts with the
arrest or taking a person into custody (by action or words restraining him from moving anywhere beyond the
arrestor's control), and it continues until the person so restrained is either released from custody, or having been
brought before a Magistrate, is remanded into custody by the Magistrate's judicial act.” 92
Since arrest involves trespass to the person, the onus lies on the arrestor to justify the trespass by establishing that
the arrest was lawful and was made atleast on reasonable suspicion. 93 A law enforcement officer arresting a
person bona fide on reasonable suspicion for commission of an offence under a law is not guilty of false
imprisonment if the law is later declared invalid although the person arrested cannot be convicted because of such
a declaration. 94 Similarly, police officers honestly believing that the Assam Foodgrains Control Order 1961 was in
force, as the Government had instructed to implement the said order and bona fide arresting and detaining a trader
and prosecuting him for violation of that order could not be held liable when it was later found that the control order
was then not in force and the trader was discharged as the order had been rescinded by the Central Government.
95 In the last mentioned case, the court did not consider as to why the Government in directing implementation of
an order, which had been rescinded, resulting in illegal arrest and detention of a person could not be held liable in
public law for violation of Article 21 of the constitution96 for the claim in that case was essentially a claim for
damages for malicious prosecution.
There is a distinction between reasonable suspicion which is the foundation of the power to arrest and prima facie
proof. “Suspicion in its ordinary meaning is a state of conjecture or surmise when proof is lacking. I suspect what I
cannot prove. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie
proof is the end.” 97 Reasonable suspicion must exist at the time of arrest. If it arises subsequent to the arrest as a
result of questioning the accused, the arrest and detention till that stage would be invalid giving rise to a claim for
damages for false imprisonment for that period. 98 In Shabban Bin Hussain's case, 99 the two plaintiffs were
arrested between 8 and 9 a.m. on 11th July 1965 for offences under section 304 of the Penal Code (Malayasian)
and section 34 of the Road Traffic Act (Malayasian) on a complaint made on 10th July that a lorry was coming in
the off-side direction with a trailer loaded with timber and as the complainant passed in his car a piece of timber fell
off the lorry, hitting his windscreen and two of the men in the car were injured and one of them died. The lorry was
found stationary on July 11th near a Coffee shop. The two plaintiffs, who were driver and attendant of the lorry,
were arrested, as earlier stated, between 8 and 9 a.m. on 11th. They were interrogated at about 1 p.m. on which
they denied to have been present at the scene of the accident at the relevant time. They also gave an account of
their movements. This was not supported by the witnesses of the place where the plaintiffs alleged they were at the
time of the accident, who were questioned between 5 and 6 p.m. The plaintiffs were detained overnight and
produced on 12th July before a Magistrate, who granted a remand of seven days for further investigation. They
were released next day as the police did not find sufficient evidence against either of them. It was agreed that the
false imprisonment, if any, was brought to an end by the Magistrate's order of remand. The Privy Council on these
facts held that at the time of arrest the police had good reason to suspect that one or the other of the plaintiffs was
driving the lorry from whose trailer the piece of timber fell but there could be no reasonable suspicion at that stage
that the lorry was being driven recklessly or dangerously, and the plaintiffs or either of them, was guilty of reckless
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driving for which arrest was made. It was further held that as the alibi given out by the plaintiffs on interrogation was
found to be not true, this fact, coupled with the fact that the plaintiffs did not stop the lorry after the accident, could
give rise to a reasonable suspicion that they were concerned in a piece of reckless driving though these facts also
fell short of prima facie proof. The Privy Council concluded that the police made the mistake of arresting before
questioning and awarded damages for false imprisonment for approximately nine hours detention in the company of
police.
It will be noticed that the exercise of power to arrest is open to challenge on Wednesbury Principles. 1 But with the
enforcement of the Human Rights Act 1998 in the United Kingdom and consequent European influence it has now
to face, the test of proportionality 2 which is a much stricter test of reasonableness when the question is of
impairment of human rights/fundamental rights. The test of proportionality has also been accepted by the Supreme
Court so the same test may be applied in India also for adjudicating on the validity of arrest. 3
Another important point, that follows from the Privy Council's decision in Shabban Bin Hussain's case 4 which has
been elaborated by the House of Lords in the case of Holgate Muhammad v. Duke , 5 is that even when the police
has a reasonable suspicion that a person is concerned in a cognizable offence, it does not follow that he must be
arrested and the police has a discretion which has to be reasonably exercised. As observed by LORD DIPLOCK 6
the exercise of the executive discretion to arrest or not to arrest conferred by statutory words “may arrest” can be
questioned in a Court of law on the principles laid down by LORD GREENE, M.R. in Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation , 7 popularly known as the Wednesbury principles. These principles are
that the person on whom the discretion is conferred must exercise it in good faith for furtherance of the object of the
statute, he must not proceed upon a misconstruction of the statute; he must take into account matters relevant for
exercise of the discretion, and he must not be influenced by irrelevant matters. In Holgate Muhammad's case, 8 the
plaintiff was a lodger in a house from which in a burglary some jewellery was stolen. A few months later, the owner
recognised the stolen articles in the window of a jeweller's shop. The jeweller gave a description of the person from
whom he purchased the jewellery which in the owner's opinion fitted the plaintiff. A constable investigating the
owner's complaint considered that he had reasonable cause for suspecting that the appellant was the thief. The
constable also considered that the jeweller's evidence would not be sufficient to convict the plaintiff but he believed
that if arrested and questioned the plaintiff may confess. The plaintiff was, therefore, arrested under section 2(4) of
the Criminal Law Act, 1967 9 and brought to the police station where she was interrogated but as no evidence was
discovered, she was released after six hours. In a suit for damages for false imprisonment, the House of Lords held
that the statutory discretion to arrest was properly exercised. The constable acted in good faith, he had reasonable
suspicion that the plaintiff was guilty of burglary and he believed that there was a greater likelihood that the plaintiff
if questioned under arrest in the police station would respond truthfully to questions about the crime than if he was
questioned in his own home and this was not an extraneous consideration for making the arrest. 10 In the same
case, the House of Lords observed that S. 2(4) of the Criminal Law Act required an objective test of reasonableness
for determining whether the constable had a reasonable cause for suspecting the plaintiff to be guilty of an
arrestable offence. 11 These points were reiterated in O'Hara v. The Chief Constable of the Royal Ulster
Constabulary, 12 which dealt with section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act, 1984
(U.K.) which provided : ‘A constable may arrest without warrant a person whom he has reasonable grounds for
suspecting to be a person concerned in the commission etc. of the acts of terrorism.’ Interpreting this section the
House of Lords laid down some general propositions as follows : “(1) In order to have a reasonable suspicion the
constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary
stage of the investigation and information from an informer or a tip-off from a member of the public may be enough
(see Shabban Bin Hussain v. Chang Fook Kam, supra ). (2) Hearsay information may therefore afford a constable
reasonable ground to arrest. Such information may come from other officers. (3) The information which causes the
constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he
makes the arrest. The executive discretion to arrest or not to arrest as LORD DIPLOCK described in Holgate
Mohammad v. Duke (supra) vests in the constable, who is engaged on the decision to arrest or not and not in his
superior officers.” 13 It was further held that section 12(1) “relates entirely to what is in the mind of the arresting
officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine
suspicion in his own mind that the person has been concerned in act of terrorism. In part it is also an objective one,
because there must also be reasonable grounds for the suspicion which he has formed”. 14 It is not sufficient to
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meet the objective test that the arresting officer himself thought that the grounds of suspicion that he had were
reasonable. What is required is that a reasonable man would be of that opinion having regard to the information
which was in the mind of the arresting officer considered in its context and the whole surrounding circumstances. 15
It is submitted that these principles equally apply to an arrest under section 41(1) of the Code of Criminal
Procedure, 1973. Indeed the Supreme Court laid down stricter requirements for making an arrest. The Court said
that “no arrest can be made because it is lawful for the police officer to do so. The existence of the power of arrest
is one thing. The justification for the exercise of it is quite another.”16 The Court further observed: “No arrest
should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona
fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect
arrest. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest
is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to
person to attend the station house and not to leave station without permission would do.” 17 Reasons for arrest
must be reflected in the case diary and a relative or friend of the person arrested must also be informed of the
arrest and the place of detention. 18
Another important requirement while making an arrest as already seen is that the person arrested shall be informed
as soon as may be, of the grounds of arrest. This constitutional requirement 19 is not available when the arrest is
made under a judicial warrant or when the arrest is not for commission of any offence but for some other purpose,
20 e.g. for sending the person taken into custody to the officer-in-charge of the nearest camp under S. 4 of the
Abducted Persons (Recovery and Restoration) Act, 1949 21 or for recovery of income-tax 22 or arrears of land
revenue. 23 But the Constitutional protection of being informed, as soon as may be, is available when the police
makes an arrest on reasonable suspicion that the person arrested is concerned in a cognizable offence 24 and
violation of this requirement will make the arrest invalid. 25 The person arrested must be informed of the ground of
his arrest. If the ground disclosed to the person arrested for his arrest is unsustainable in law, his suit for damages
for false imprisonment cannot be defeated by pleading another ground of arrest which may have existed but which
was not disclosed to him at the time of his arrest. 26 Where after arrest the police reach the conclusion that prima
facie proof of the arrested person's guilt is unlikely to be discovered by further inquiries of him or of other potential
witnesses, it is their duty to release him from custody. 27
A lawful arrest made on proper grounds in respect of an offence which is also disclosed does not become illegal
simply on the ground that there was a collateral motive of investigating a more serious crime in making the arrest.
28
The safeguards in matters of arrest by a police officer in a cognizable offence judicially introduced by the Supreme
Court in the cases of Joginder Kumar, D.K. Basu and other cases have now found statutory recognition in section
41(1) (a), and (b) as amended by the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) which
recevied the Presidential assent on 7th January 2009. Section 41(1) (a) and (b) as amended read as follows :
“41(1), Any police officer may without an order from a magistrate and without a warrant arrest any person:
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for
a term which may be less than seven years or which may extend to seven years whether with or without
fine, if the following conditions are satisfied, namely:-
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that
such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with
such evidence in any manner; or
Page 10 of 23
(d) to prevent such person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the
police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in writing.
(ba) against whom credible information has been received that he has committed a cognizable offence
punishable with imprisonment for a term which may extend to more than seven years whether with
or without fine or with death sentence and the police officer has reason to believe on the basis of
that information that such person has committed the said offence.”
An arrest made by a police officer which does not comply with the safeguards so enacted or does not contain the
reasons for arrest as required by clauses a to e of Section 41(1) b (ii) will be held illegal.
If investigation is not completed within 24 hours but there are grounds for believing that the information or
accusation is well founded, the person arrested must be produced before a Magistrate. 29 Detention beyond 24
hours can only be under orders of a Magistrate before whom the arrested person is produced. Nonproduction of the
person arrested before a Magistrate within twenty-four hours as required by Article 22(1) of the Constitution will
make the arrest invalid. 30 Further, once it is shown that the arrests made by the police officers were illegal,
patently routine remand orders passed mechanically by a Magistrate without applying his mind cannot make the
arrest and detention legal. 31 In Bhimsingh v. State of Jammu & Kashmir , 32 Bhimsingh an M.L.A., was arrested
on September 9, 1985 to prevent him from attending the Assembly Session on September 11. Remand orders were
obtained from a Magistrate and a Sub-Judge, without producing him before the Magistrate and the Sub-Judge who
acted in a casual way in granting the orders. Bhimsingh was released during the pendency of his petition under
Article 32 of the Constitution before the Supreme Court and so the necessity of passing any release order did not
arise but the Court awarded Rs. 50,000 as compensation against the Kashmir Government for illegal arrest and
imprisonment.
Even when the imprisonment is sanctioned by a Court order it will become illegal after that sanction is over. For
example when an undertrial prisoner suffered prolonged detention in prison even after his acquittal by the Court, he
was held entitled to compensation against the State. 33 Similarly, when a prisoner's jail sentence is over, his
detention thereafter will result in false imprisonment. But the jail authorities would not be liable if the warrant of
detention issued by the court contains the mistake about the period of detention and the prisoner suffers excess
detention because of that mistake. 34 In such a case in England even the crown would not be liable. 35
Even a judicial officer who issues a warrant of arrest against a person recklessly or maliciously cannot be said to be
acting judicially and will be liable for false imprisonment. 36 In a case where a person had to suffer a few days
imprisonment because of orders of a High Court, the Supreme Court in appeal in the same case allowed him Rs.
10,000 as compensation against the State as there was “total non-application of mind at the stage of passing of the
orders”. 37
Apart from arrest for criminal offences, a person may be arrested under special statutes, e.g. for recovery of
abducted persons, 38 realisation of incometax, 39 or arrears of land revenue 40 or being detained as a lunatic. 41
In all such cases, though Article 22(1) of the Constitution is not available, 42 the conditions laid down in the
relevant statutes must be strictly complied with and the power honestly exercised, otherwise the arrest would be
illegal; and, subject to any special protection conferred by the statute, will give rise to a claim for false
imprisonment. 43
3(D) Arrest by private person
Section 43 of the Code of Criminal Procedure, 1973 provides that a private person may arrest any person who in
his view has committed a non-bailable and cognizable offence or is a proclaimed offender. After making the arrest
the person arresting must make over the person arrested to a police officer of the nearest police station. It is not
Page 11 of 23
essential that a private individual, in whose presence a non-bailable and cognizable offence is committed, should
himself physically arrest the offender. He may cause such offender to be arrested by another person.44
4. JUSTIFICATION
It has already been seen that in an action for trespass the burden to prove justification is on the defendant. 45 The
action for trespass is available not only against a private person but also against the State and its officers. Undue
extension of categories of justification will diminish the circumstances when a citizen can enforce his constitutional
right of liberty against the State. Therefore, although categories of justification are not closed, extreme caution is
necessary in extending them. 46 Apart from (1) Leave and Licence and (2) Private Defence which have already
been dealt with in Chapter V, trespass to person may be justified on grounds of (3) expulsion of trespasser; (4)
retaking of goods; (5) lawful correction; (6) preservation of public peace; and (7) Statutory authority.
EXPULSION OF TRESPASSER
If a man enters into the house or land of another with force and violence, the owner is justified in turning him out
without a previous request to depart and may use such force as is necessary, 47 but if he enters quietly, he must
be first requested to retire before hands can be lawfully laid upon him to turn him out. A trespasser can be turned off
by the owner before he has gained possession and he does not gain possession until there is acquiescence in the
physical fact of his occupation by the owner. 48 This rule applies to squatters also who say that they are homeless.
49 An occupier is entitled to expel a trespasser and if necessary, even forcibly remove him from the premises. The
law also allows a person to resort to a reasonable degree of force for the protection of himself or any other person
against an unlawful use of force. Force is not reasonable if it is either unnecessary, i.e. greater than is requisite for
the purpose or disproportionate to the evil to be prevented. 50 A shopkeeper is not bound to sell goods at the
prices marked over them, and if one enters a shop and insists on having the goods and refuses to leave the shop,
force may be used to remove him. 51 The plaintiff was a passenger by the defendant's railway. He having lost his
ticket was unable to produce it when required. He was asked to pay the fare from the station whence the train
originally started according to a condition published in the company's time-table. On his declining to do so, he was
forcibly removed by the defendant's servants from the carriage in which he was travelling. He sued the company for
assault. It was held that as the contract between the plaintiff and the defendants did not authorize the removal of a
person failing to pay under such circumstances, the defendants were liable. 52 In another case, the plaintiff
entered a carriage on the defendants’ railway for the purpose of proceeding to B but without procuring a ticket
through oversight. He asked for a ticket at intermediate stations but was refused. At the last place where he asked
for a ticket he was asked to get out of the carriage, and on his not complying with the order he was forcibly removed
from it. In an action by the plaintiff for this forcible removal, it was held that he was a trespasser and therefore his
removal was not wrongful. 53
RETAKING OF GOODS
The rightful owner (or his servant by his command) may justify an assault in order to repossess himself of land or
goods which are wrongfully in the possession of another, who refuses to deliver them up on request, so long as no
unnecessary violence is used. 54
LAWFUL CORRECTION
Assault may be justified on the ground that it was done in exercise of parental or quasi- parental authority, i.e. for
the correction of a pupil, 55 child, apprentice, or sailor on board a ship or a soldier. Here the chastisement must not
be excessive or unreasonable.
PRESERVATION OF PUBLIC PEACE

Page 12 of 23
A person who disturbs public worship or a public meeting or a lawful game may be lawfully removed. Here the force
used should not be more than what is necessary. Every citizen in whose presence a breach of the peace is being,
or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who
is breaking or threatening to break the peace refrain from doing so; and those steps in appropriate cases will
include detaining him against his will. 56
STATUTORY AUTHORITY
Assault may be justified on the ground that it was done in serving legal process, including search under any law.
Statutory power of arrest and detention which is inherent in this context has already been considered. 57
5. DAMAGES
The plaintiff is entitled to recover by way of general damages compensation for the indignity or suffering which the
trespass has caused. Damages should be commensurate with the injury and annoyance caused even though there
has been no serious personal injury. 58 Damages will vary according to the circumstances of each case. But
generally they should be exemplary where the plaintiff's complaint is oppressive, arbitrary and unconstitutional
action by the State or its servants. 59
The circumstances of time and place as to when and where the assault was committed, and the degree of personal
insult must be considered in estimating the nature of the offence and the amount of damages. It is a greater insult to
be beaten in a public place than in a private room. But if punishment in person is resorted to, that must always be
an important element in mitigation in subsequently estimating the amount of damages. 60 The plaintiff's position
should be considered for the purpose of seeing how far the compensation awarded is commensurate with the injury
inflicted. 61 For the loss of an eye the plaintiff besides getting special damages is entitled to damages for loss of
earnings, medical expenses incurred, pain and suffering, loss of earning capacity, and for risk of becoming
permanently blind if the other eye is damaged. 62
When it is proved that there was no justification for an assault, a person is liable for all the direct consequences
flowing from the wrongful injury caused. 63
When the assault has been carried to the extent of maiming or crippling, or of wounding a person, damages will be
greater than those awarded for a mere assault or battery.
In the case of a joint assault, the true criterion of damages is the whole injury which the plaintiff has sustained from
the joint act of trespass. 64
Dealing with a case of false imprisonment by the police, LORD DEVLIN, speaking for the Privy Council, observed:
“The Court is not in this category of case confined to awarding compensation for loss of liberty and for such physical
and mental distress as it thinks may have been caused. It is also proper for it to mark any departure from
constitutional practice, even only a slight one, by exemplary damages.” 65 The Privy Council 66 also approved in
this context the observations of SCOTT, L.J. in Dumbell v. Roberts ; 67 “The more highhanded and less
reasonable the detention is, the larger may be the damages; and conversely, the more nearly reasonably the
defendant may have acted, the smaller will be the proper assessment.” 68 The assessment will include
compensation for indignity, mental suffering, disgrace, humiliation, and loss of social status and reputation. 69
The topic of exemplary damages has been also separately dealt with in Chapter IX (pp. 194 to 196). Further, cases
relating to award of damages against the state for violation of right to life and personal liberty as guaranteed under
Article 21 of the Constitution have been discussed in Chapter III title 8(B).
1
WEIR, Case book on Tort (5th edn), p. 267.
Page 13 of 23
See Chapter XIX.

3
Fowler v. Lanning, (1959) 1 QB 426 : (1959) 2 WLR 241 : (1959) 1 All ER 290; The Wagon Mound, (1961)
AC 388 : (1961) 2 WLR 126 : (1961) 1 All ER 404 (PC); WEIR, Case book on Tort, p. 268.
4
(1959) 1 QB 426 : (1959) 2 WLR 241 : (1959) 1 All ER 290.

5
(1965) 1 QB 232 : (1964) 3 WLR 573 : (1964) 3 All ER 929 (CA).

6
Ibid.
7
(1959) 1 QB 426 : (1959) 2 WLR 241.

8
WEIR, p. 268.
9
Ibid .
10
Stephens v. Myers , (1830) 4 C & P 349 : 34 RR 458.

11
PER ARNOULD, C.J., in A.C. Cama v. H.F. Morgan , (1864) 1 BHC 205, 206.
12
Tuberville v. Savage , (1669) 1 Mod 3.

13
R. v. James , (1844) 1 C & K 530; Osborn v. Veirch , (1858) 1 F and F 317.

14
Genner v. Sparkes, (1704) 1 Salk 79.

15
Mortin v. Shoppee , (1828) 3 C & P 373.

16
It was assize time, and the consequence of drawing a sword on another during assize time involved in
those days (the later end of Charles I's reign) not only the certain infliction of a heavy fine, but the possible
chopping off of the hand by which the sword was drawn: Tuberville v. Savage, sup.
17
PER ARNOULD, C.J., in A.C. Cama v. H.F. Morgan , (1864) 1 BHC 205.
Page 14 of 23
18
(1704) 6 Mod, 149.
19
Collins v. Wilcock , (1984) 3 All ER 374, p. 378.

20
(2003) 4 All ER 969, p. 974, (para 9) (HL).
21
Pursell v. Horn , (1832) 3 N & P 564, 8 A & E 602.

22
WINFIELD AND JOLOWICZ on Tort, 12th edn, p. 54.
23
Blunt v. Beaumont , (1835) 2 Cr M & R 412; R v. Coney, (1882) 8 QBD 534.

24
James v. Campbell , (1832) 5 C & P 372.

25
Coward v. Baddeley , (1859) 4 H & N 478.

26
Stephens v. Myers , (1830) 4 C & P 349 : 34 RR 811.

27
138 ER 1437.
28
AIR 1964 AP 382 [LNIND 1963 AP 91].

29
Rawling v. Till , (1837) 3 M & W 28.

30
The Queen v. Cotesworth , (1704) 6 Mod 172.

31
Hopper v. Reeve , (1817) 7 Taunt 698 : 1 Moox 407 : 18 RR 629.

32
Pursell v. Horn , (1832) 8 A & E 602.

33
Dodwell v. Burford , (1670) 1 Mod 24.

34
Wiffin v. Kincard , (1807) 2 B & P N R 471.

35
Page 15 of 23
Latter v. Braddell , (1881) 28 WR (Eng) 239 : 50 LJQB 448 : 144 369.

36
Hurst v. Picture Theatres, Ltd ., (1915) 1 KB 1 : 111 LT 973 : 30 TLR 642.

37
Morris v. Marsden , (1952) 1 All ER 925.

38
Ibid. , p. 927.
39
Akhil Chandra Biswas v. Akhil Chandra Dey , (1902) 6 CWN 915; Jodhi Ram v. Abdul Mian , (1893) 13
AWN 62; Chandan v. Sumera , (1887) 7 AWN 104.
40
Ali Buksh Doctor v. Sheikh Samiruddin , (1869), 4 Beng. LR (ACJ) 31; Bishonath v. Huro Gobind , (1866) 5
WR 27.
41
Jagga Rao, In re, (1935) 68 MLJ 660 [LNIND 1935 MAD 108] : (1935) MWN 452.
42
Shumboo Chunder v. Modhoo , (1868), 10 WR 56.

43
Bird v. Jones, (1845) 7 QB 742, 752; Mahammad Yusuf-ud-din v. Secretary of State for India in Council ,
(1903) 30 IA 154 ILR 30 Cal 872, 5 Bom LR 490; Onkarmal v. Banwarilal, ILR (1962) Raj 202 : AIR 1962
Raj 127 : (1962) RLW 77.
44
R. v. Governor of Brockhill Prison (no. 2) , (2000) 4 All ER 15 pp. 18, 19, 20 (HL).
45
See Pocock v. Moore , (1825) R & M 321.

46
Henderson v. Preston, (1888) 21 QBD 362; Morriss v. Winter, (1930) 1 KB 243. The signing of a charge-
sheet, standing alone, is not evidence of anything directly causing the imprisonment of the person charged
and will not support an action for false imprisonment against the person who signs : Sewell v. National
Telephone Co. Ltd ., (1907) 1 KB 557. See Patton v. Huree Ram , (1868) 3 Agra HC 409; Rajah Pedda
Vencatapa Naidoo v. Aroovala Roodraya Naidoo , (1841) 2 MIA 504, as to unlawful detention.
47
BLACKSTONE, 127.
48
Bird v. Jones, (1845) 7 QB 742, 744.

49
Page 16 of 23
PER PATTESON, J., in Bird v. Jones, (1845) 7 QB 742, 752; Parankusan v. Stuart , (1865) 2 MHC 396;
Warner v. Riddiford, (1858) 4 CBNS 180.
50
Austin v. Metropolitan Police Commissioner, (2009) 3 ALL ER 458 (H.L.).

51
Grainger v. Hill , (1838) 4 Bing NC 212 : 7 LJPC 85.

52
Meering v. Graham White Aviation Company Limited, (1919) 122 LT 44.

53
Ibid. , p. 53.
54
149 ER 1126.
55
Ibid .
56
Restatement of the Law of Torts (1935) 83 U Pa L Rev 411, 418.

57
False imprisonment : Consciousness of confinement, (1955) Col L Rev 847.
58
(1988) 2 All ER 521 : (1988) 1 WLR 692 : (1988) 132 SJ 852 (HL).
59
R. v. Bournewood NHS Trust , (1998) 1 All ER 634 (CA) p. 639.

60
Ibid. , pp. 647, 648; Murray v. Minister of Defence , (1988) 2 All ER 121, p. 129 : (1988) 1 WLR 692 (HL).
61
Mahammad Yusufuddin v. Secretary of State for India , (1903) ILR 30 Cal 872 : 30 IA 154 : 5 Bom LR 490.
62
Hague v. Deputy Governor of Parkhurst Prison, (1991) 3 All ER 733 (HL). See text and note 15, p. 35.
63
Ibid
64
See , p. 58, ante

65
R. v. Governor of Brockhill Prison (no. 2), (2000) 4 All ER 15 : (2001) 2 AC 19 : (2000) 3 WLR 843 (HL).
66
Page 17 of 23
(1845) 7 QB 742.
67
John Lewis & Co. v. Times, (1952) AC 676 : (1952) 1 All ER 1203.
68
Robinson v. Balmain New Ferry Co ., (1910) AC 295.

69
Herd v. Weardale Steel etc. Co. Ltd ., (1915) AC 67 : 111 LT 60 : 30 TLR 620.
70
Maharani of Nabha v. Province of Madras , ILR (1942) Mad 696.

71
Aitken v. Bedwell , (1827) Mood & M 68.

72
For vicarious liability, see Chapter VIII, title 2.

73
(1776) 96 ER 62; WEIR Case-Book on Tort, 5th Edn., p. 293.
74
Hopkins & Crowe , (1836) 4 A & E 774; Roberts v. Buster's Auto Towing Service Ltd ., (1977) 4 WWR 428.
75
Clubb v. Wimpey & Co. Ltd ., (1936) 1 All ER 69.

76
Gouri Prasad Dey v. Chartered Bank of India, Australia, Jehina , (1925) ILR 52 Cal 615; Graham v. Henry
Gidney , (1933) ILR 60 Cal 955; Sakik Hussain Khan v. Taffazal Khan , (1939) 43 CWN 1080; Gorikapati v.
Arza Bikasham , AIR 1979 AP 31 [LNIND 1978 AP 67].
77
Davidson v. Chief Constable of North Wales , (1994) 2 All ER 597 (CA).

78
Ibid.
79
Ibid see further Gosden v. Elphik , (1849) 4 Ex 445; Grinham v. Willey , (1859) 4 H & N 496; Sewell v.
National Telephone Co ., (1907) 1 KB 557 (CA).
80
Austin v. Dowling , (1870) LR 5 CP 534, (p. 540) (WILLES, J.); Reid v. Webster , (1966) 59 DLR (2 d) 189
(196); Brown v. Chapman, (1848) 6 CB 365; Biharilal Bhawasinka v. Jagannath Prasad Kajriwal , AIR 1959
Pat 490 .
81
Lock v. Aston, (1848) 12 QB 871 : 76 RR 439.

Page 18 of 23
78a
McGrath v. Chief Constable of the Royal Ulster Constabulary , (2001) 4 All ER 334, pp. 340, 341 (H.L.)
82
Bheema v. Deuti, (1875) 8 MHC 38. But see Velji Bhimsey & Co v. Bachoo Bhaidas , (1924) 26 Bom LR
349 [LNIND 1924 BOM 63].
83
West v. Smallwood , (1838) 3 M & W 418.

84
Painter v. Liverpool Gas Co ., (1836) 3 A & E 433; Cooper v. Harding, (1845) 7 QB 928.
85
West v. Smallwood, supra .

86
Anwar Hussain v. Ajoy Kumar Mukherjee , AIR 1959 Assam 28 .

87
See Chapter XIII, title 1 (D), (E), and 4.

88
Gulabchand Kannoolal v. State of M.P ., 1982 MPLJ 7 (17), (FB). But a statute may confer power to arrest
on mere ‘suspicion’ as distinguished from ‘reasonable suspicion’. S. 11(1) of the Northern Ireland
(Emergency Provisions) Act, 1978, confers power on a police officer to “arrest without warrant any person
whom he suspects of being a terrorist.” A constable made an arrest of a person on instructions from his
superior officer. After being questioned for 18 hours, he was released. In a suit for damages for unlawful
arrest, the House of Lords held against the plaintiff and observed that on the wordings of the Act, a
constable made a lawful arrest if he had an honest, though not necessarily a reasonable suspicion that the
person being arrested was a terrorist and that the arresting officer was entitled to have an honest suspicion
merely from the fact of the instructions given by his superior which he could not question. McKee v. Chief
Constable for Northern Ireland , (1985) 1 All ER 1 : (1984) 1 WLR 1358 : 128 SJ 836 (HL).
89
22[(]1[)], Constitution of India.
90
22[(]2[)], Constitution of India.
91
Shabban Bin Hussain v. Chong Fook Kam , (1969) 3 All ER 1626 (PC) (LORD DEVLIN).
92
Holgate Muhammad v. Duke , (1984) 1 All ER 1054 (1056) : (1984) AC 437 : (1984) 2 WLR 660 (HL).
93
Dallisan v. Caffey, (1964) 2 All ER 610 p. 619 : (1965) 1 QB 348 (C.A., DIPLOCK LJ); O'Hara v. Chief
Constable of The Royal Ulster Constabulary, (1997) 1 All ER 129 p. 137 (HL).
94
Page 19 of 23
Perrey v. Hall, (1996) 4 All ER 523.

95
Ravinder Kumar Sharma v. Sate of Assam, AIR 1999 SC 3571, pp. 3576, 3577 : (1999) 7 SCC 435 [LNIND
1999 SC 801].
96
See , pp. 50 to 60.

97
Shabban Bin Hussain v. Chong Fook Kam, supra ; Holgate Muhammad v. Duke, supra , p. 1057;
Gulabchand Kannoolal v. State of M.P ., 1982 MPLJ 7 (p. 17) (FB) (G.P. SINGH C.J.).
98
Shabban Bin Hussain v. Chong Fook Kam , (1969) 3 All ER 1626 (PC).
99
Ibid .
1
See text and notes 5 to 8 infra .

2
R (on the application of Laporte) v. Chief Constable of Gloucestershire, (2007) 2 All ER 529.
3
See Principles of Statutory Construction 12th Edition pp. 441, 442.
4
Note 97 supra .
5
(1984) 1 All ER 1054 : (1984) AC 434 : (1984) 2 WLR 660 (HL).

6
Ibid. , p. 1057.
7
(1947) 2 All ER 680 (CA).
8
Holgate Muhammad v. Duke , (1984) 1 All ER 1054 (HL).

9
S. 2(4) of the Criminal Law Act, 1967 (UK) provides : “Where a constable with reasonable cause suspects
that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with
reasonable cause, suspects to be guilty of the offence.”
10
Holgate Muhammad v. Duke , (1984) 1 All ER 1054 (1059, 1060) : (1984) AC 434 : (1984) 2 WLR 660 (HL).
11
Page 20 of 23
Ibid., 1059 (Letter I).

12
(1997) 1 All ER 129 : 1997 AC 286 : (1997) 2 WLR 1 (HL).

13
Ibid., p. 134.
14
Ibid., p. 138.
15
Ibid., p. 139. In England Part IV of the Criminal Evidence Act, 1984 provides many safeguards for
continuing a person in police detention and one of these safeguards is periodic review of the detention, the
first review being not later than six hours after the detention was first authorised. Omission to review the
detention makes it illegal and can give rise to action for false imprisonment : Roberts v. Chief Constable,
(1999) 2 All ER 326 (CA).
16
Joginder Kumar v. State of U.P ., AIR 1994 SC 1349 p. 1353 : (1994) 3 JT 423 p. 429 : (1994) 4 SCC 260
[LNINDORD 1994 SC 51].
17
Ibid ., pp. 429, 430 (JT) : 1353, 1354 (AIR).

18
Ibid. , p. 1354. See further D.K. Basu v. State of West Bengal, AIR 1997 SC 610 : (1997) 1 SCC 416
[LNIND 1996 SC 2177] where more safeguards for the benefit of arrested person were laid down.
19
22 (1) of the Constitution of India.
20
State of Punjab v. Ajaib Singh , AIR 1953 SC 10 : 1953 SCR 254 [LNIND 1952 SC 68].
21
Ibid.
22
Purshottam Govindji Halai v. D.M. Desai , AIR 1956 SC 20 : 1955 SCR 887 [LNIND 1954 SC 147].
23
Collector of Malabar v. Erimal Ebrahim Hajee , AIR 1957 SC 688.

24
25
Ibid ., Christie v. Leachinsky, (1947) 1 All ER 567 : (1947) AC 573 (HL); In the matter of, Madhu Limaye ,
AIR 1969 SC 1014 : (1969) 1 SCC 292. But if reasons for arrest are subsequently told, the unlawful arrest
Page 21 of 23
from that point will become lawful; Lewis v. Chief Constable of the South Wales Constabulary , (1991) 1 All
ER 206 (CA).
26
Christie v. Leachinsky, (1947) AC 573 : (1947) AC 573 (HL).

27
Wiltshire v. Barret , (1965) 2 All ER 271; Holgate Muhammad v. Duke , (1984) 1 All ER 1054 (1058).
28
Christic v. Leachinsky, (1947) 1 All ER 567, pp. 575, 581, 582 (HL); R. v. Chalkley, (1998) 2 All ER 155, pp.
176, 176 (CA).
29
Gulabchand Kannoolal v. State of M.P ., 1982 MPLJ 7 (18) (FB).

30
Gunnupati Keshavram Reddy v. Nafisul Hasan , AIR 1954 SC 636 : 1954 Cr LJ 1704. (This was a case of
arrest on the warrant issued by the Speaker); Manoj v. State of Madhya Pradesh, AIR 1999 SC 1403, p.
1406.
31
In the matter of, Madhu Limaye , AIR 1969 SC 1014 : (1969) 1 SCC 292.
32

33
Rudul Shah v. State of Bihar , AIR 1983 SC 1086 : (1983) 4 SCC 141 [LNIND 1983 SC 181].
34
Quinland v. Governor of Swaleside Prison , (2003) 1 All ER 1173 (CA).

35
Ibid.
36
Anwar Hussain v. Ajoy Kumar , AIR 1965 SC 1651 : (1965) 2 Cr LJ 686; State v. Tulsiram , AIR 1971 All
162 . See further Chapter 5, title (2) ‘Judicial Acts.’
37
Omwanti v. State of U.P., (2004) 4 SCC 425, p. 426.

38
39
Purshottam Govindji Halai v. D.M. Desai , AIR 1956 SC 20 : (1955) 2 SCR 887 [LNIND 1955 SC 79].
40
Page 22 of 23
Collector of Malabar v. Erimal Ebrahim Hajee , AIR 1957 SC 688 : 1957 Crlj 1030.
41
Everett v. Griffiths, (1921) 1 AC 631 (HL).

42
See cases in foot-notes in 38 to 40, supra and text and notes 20 to 23, p. 269.
43
Everett v. Griffiths , supra . See further Holgate Muhammad v. Duke , (1984) 1 All ER 1054 : (1984) AC 434
: (1984) 2 WLR 660 (HL) which lays down that statutory discretion to arrest can be challenged on
Wednesbury principles. See text and notes 5 to 7, p. 267, supra .
44
Gouri Prasad Dey v. Chartered Bank of India, Australia and China , (1925) ILR 52 Cal 615.
45
See title (1), Introduction, text and note 8, p. 256, supra.

46
WEIR, case book on Tort, 5th edition, p. 269.
47
Polkinhorn v. Wright, (1845) 8 QB 197.

48
McPhail v. Persons Unknown , (1973) 3 All ER 393 : 1973 Ch 447 : (1973) 3 WLR 71 (CA).
49
Ibid.
50
Sitaram v. Jaswant Singh, 1951 NLJ 477.

51
Timothy v. Simpson , (1835) Cr M & R 757.

52
Butler v. Manchester, Sheffield & Lincolnshire Ry. Co ., (1888) 21 QBD 207.

53
Pratap Daji v. B.B. & C.I. Ry ., (1875) ILR 1 Bom 52.

54
Blades v. Higgs , (1861) 10 CB NS 713; Anthony v. Haney , (1832) 8 Bing 186.

55
Clearly v. Booth, (1893) 1 QB 465; Mansell v. Griffin, (1908) 1 KB 160.

56
Albert v. Lacin , (1981) 3 All ER 878, p. 880 : (1982) AC 546 : (1981) 3 WLR 955 (HL).
Page 23 of 23
57
See title 3(C) Ante.

58
Ramjoy v. Russell , (1864) WR (Gap No.) 370; Bhyrau Pershad v. Isharee , (1871) 3 NWP 313. A plaintiff in
claiming damages for a criminal assault is not entitled to include in his claim costs incurred by him in
successfully prosecuting the defendant for the hurt caused to the plaintiff by the defendant: Jagan Nath v.
Hakim , (1915) PR No. 17 of 1916; Lahori v. Ram Chand, (1931) 32 PLR 42. Where the damages awarded
in compensation for an assault were beyond the means of the defendant, the Court reduced them on the
defendant's tendering a written apology to the plaintiff, expressing his regret for what had passed : MacIver
v. Shungeshur Dutt , (1866) 6 WR 95.
59
Rookes v. Barnard, 1964 AC 1129 (HL), p. 1226 : (1964) 2 WLR 269 : (1964) 1 All ER 367; Cassell & Co.
Ltd. v. Broome, (1972) AC 1027 (HL).
60
Misr. Ramji v. Jiwan Ram; Kidar Nath v. Misr. Ramji , (1881) 1 AWN 131.
61
Joypal Roy v. Mukoond Roy , (1872) 17 WR 280.

62
Abdul Ghaffar Khan v. Gokul Prasad , ILR (1936) Nag 1.

63
Sitaram v. Jaswant Singh, 1951 NLJ 477.

64
Clark v. Hewsam , (1847) 1 Ex 131; Ramessur v. Shib Narain , (1870) 14 WR 419.

65
Shabban Bin Hussien v. Chong Fook Kam , (1969) 3 All ER 1626 (PC).
66
Ibid.
67
(1944) 1 All ER 326.
68
Ibid. , p. 329.
69
State of Rajasthan v. Rikhabchand , AIR 1961 Raj 64; S. Pande v. S.C. Gupta , AIR 1969 Pat 194 (202).
End of Document
CHAPTER XII DEFAMATION
1. GENERAL
EVERY man has a right to have his reputation preserved inviolate. This right of reputation is acknowledged as an
inherent personal right of every person as part of the right of personal security. 1 It is a jus in rem , a right good
against all the world. A man's reputation is his property, more valuable than other property. 2 No mere poetic fancy
suggested the truth that a good name is rather to be chosen than great riches. Indeed, if we reflect on the degree of
suffering occasioned by loss of character, and compare it with that occasioned by loss of property, the amount of
the former injury far exceeds that of the latter. 3 But the law of defamation like many other branches of the law of
torts provides for balancing of interests. The competing interest which has to be balanced against the interest which
a person has in his reputation is the interest which every person has in freedom of speech. The wrong of
defamation protects reputation and defences to the wrong, viz. truth and privilege protect the freedom of speech.
The existing law relating to defamation is a reasonable restriction on the fundamental right of freedom of speech
and expression conferred by Article 19(1) (a) of the Indian Constitution and is saved by clause (2) of Article 19. 4
Many people in England feel that the present law of defamation gives too much protection to reputation and
imposes too great a restriction on the freedom of speech. 5
The wrong of defamation may be committed either by way of writing, or its equivalent, or by way of speech. The
term ‘libel’ is used for the former kind of utterances, ‘slander’ for the latter. Libel is a written, and slander is a
spoken, defamation. A learned judge of MP High Court holds that there may be a hybrid type of defamation not
falling within the recognised categories of libel and slander. In that case it was held that the bridegroom and his
father in refusing to take the bride to their home after marriage in full gaze of the guests committed the tort of
defamation and damages could be awarded for loss of reputation. 6
A defamatory statement is a statement calculated to expose a person to hatred, contempt or ridicule, or to injure
him in his trade, business, profession, calling or office, or to cause him to be shunned or avoided in society.
A libel is a publication of a false and defamatory statement tending to injure the reputation of another person without
lawful justification or excuse. The statement must be expressed in some permanent form, e.g., writing, printing,
pictures, statue, waxwork effigy, etc.
A slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of
another.
2. DISTINCTION BETWEEN LIBEL AND SLANDER
There are the following three points of difference between a libel and a slander:
Page 2 of 72
(1) A libel is a defamation in some permanent form, e.g., a written or printed defamation. A slander is
defamation in a transient form, e.g., spoken words and gestures.
(2) At common law a libel is a criminal offence as well as a civil wrong, but a slander is a civil wrong only;
though the words may happen to come within the criminal law as being blasphemous, seditious, or
obscene, or as being a solicitation to commit a crime or as being a contempt of Court. 7 Under the Indian
law, both libel and slander are criminal offences. 8
(3) A libel is of itself an infringement of a right and no actual damage need be proved in order to sustain an
action. At common law, a slander is actionable only when special damage can be proved to have been its
natural consequence, or when it conveys certain imputations. An action may be maintained for defamatory
words reduced into writing, which would not have been actionable if merely spoken. 9 But there are
exceptions under the English law where slander is actionable without proof of special damage. These
exceptions 10 are when the slander contains imputation of : (a) a criminal offence punishable with
imprisonment, 11 (b) a contagious or infectious disease likely to prevent other persons from associating
with the plaintiff; 12 (c) unchastity or adultery to any woman; 13 and (d) unfitness, dishonesty, or
incompetence in any office, profession, calling, trade or business held or carried on by the plaintiff at the
time when the slander was published. 14 THE FAULKS Committee in its Report in 1975 recommended
abolition of the distinction which when implemented will mean that no human plaintiff need prove any
special damage but institutional plaintiffs should prove that the words actually caused loss or were likely to
do so. 15 The consensus of opinion is not to apply in India this distinction of the common law and to hold
that slander too is actionable without proof of special damage. 16
Three reasons are assigned for this difference:—

(1) In a libel the defamatory matter is in some permanent form — in writing or painting — e.g., a statue, effigy,
caricature, signs or picture marks on a wall. A slander is in its nature transient, and is in the form of spoken
words or significant gestures.
(2) A slander may be uttered in the heat of the moment, and under a sudden provocation; the reduction of the
charge into writing and its subsequent publication in a permanent form show greater deliberation and raise
a suggestion of malice. 17
(3) A libel conduces to a breach of the peace; a slander does not. This distinction which is recognised in the
English law is severely criticised by the framers of the Indian Penal Code.18
3. LIBEL
In order to found an action for libel it must be proved that the statement complained of is (i ) false; (ii ) in writing; (iii )
defamatory; and (iv ) published.
3(i) False
The falsity of the charge is presumed in the plaintiff's favour. 19 The burden of proof that the words are false does
not lie upon the plaintiff. Defamation of a person is taken to be false until it is proved to be true. Further if a man has
stated that which is false and defamatory, malice is also assumed. 20 It is, however, customary for the plaintiff to
allege in his plaint that the imputation is false and malicious. ‘Malicious’ here means that the publication was without
just cause or excuse. The motive of the defendant is not material in determining liability. Existence of malice in the
sense of evil motive may be relevant in assessment of damages, otherwise no notice of it need be taken during the
trial except when the plea is of unintentional defamation under the Defamation Act, 1952 (English) or principles
analogous to it; 21 of fair comment 22 or of qualified privilege. 23
3(ii) In Writing
Page 3 of 72
The defamatory statements may be in writing or in printing, or may be conveyed in the form of caricatures or any
other similar representations, e.g., a scandalous picture. 24 Defamation through the agency of mechanically
reproduced pictures and words for example, a talking cinematograph film—constitutes a libel. Princess Irina of
Russia, the wife of Prince Youssoupoff, claimed damages for a libel contained in a sound film entitled “Rasputin the
Mad Monk”, alleging that Metro-Goldwyn-Mayer Pictures Limited , had published pictures and words in the film
which were understood to mean that she, therein called “Princess Natasha”, had been raped or seduced by
Rasputin. The jury returned a verdict in favour of the Princess and awarded 25,000 damages and the trial Court
entered judgment for her for that amount which was confirmed by the Court of Appeal. SLESSER, L.J., said: “There
can be no doubt that, so far as the photographic part of the exhibition is concerned, that is a permanent matter, to
be seen by the eye, and is the proper subject of an action for libel, if defamatory. I regard the speech which is
synchronised with the photographic reproduction and forms part of one complex common exhibition as an ancillary
circumstance, part of the surroundings explaining that which is to be seen.” 25 There is a difference of opinion—
though it has not been judicially decided— whether defamatory matter recorded on a gramophone disc is libel or
slander. 26 The record being a permanent form, it supports the view that the distribution of the record by the
manufacturer, like the distribution of any printed matter, is libel and the speaker whose voice is recorded will be
vicariously liable for libel along with the manufacturer or the distributor although at the time when his voice was
recorded, he was uttering only a slander. On the other hand, as the matter recorded on the record cannot be
communicated to anyone until it is played in the machine and communication takes the form of speech, this
supports the view that the record though in permanent form is only potential slander. Under the Defamation Act,
1952, 27 the broadcasting of words by means of wireless telegraphy i.e. radio and television is treated as
publication in permanent form. Similarly by the Theaters Act, 1968 (UK), theatrical performances are treated as
publication in permanent form i.e. libel.
3(iii) Defamatory
Any words will be deemed defamatory which

(a) expose the plaintiff to hatred, contempt, ridicule, or obloquy; or
(b) tend to injure him in his profession or trade; or
(c) cause him to be shunned or avoided by his neighbours.
The test is whether the words would “tend to lower the plaintiff in the estimation of right-thinking members of society
generally”. 28 In applying this test the statement complained of has to be read as a whole and the words used in it
are to be given their natural or ordinary meaning which may be ascribed to them by ordinary men. 29 The ordinary
man after reading a writing does not contemplate of reading it again and again for deriving its meaning. So the
meaning of words in a libel action “is a matter of impression as an ordinary man gets on the first reading, not on a
later analysis”. 30 This is especially the case for a viewer of television who receives a succession of spoken words
and visual images which he is unable to have repeated for the purpose of rejection or clarification. 31 The question
is not of construction in the legal sense for the ordinary man “is not inhibited by a knowledge of the rules of
construction and he can and does read between the lines in the light of his general knowledge and experience of
worldly affairs”; 32 and further “the layman's capacity for implication is much greater than the lawyer's. The lawyer's
rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more
freely and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is
derogatory.” 33
If the defamatory statement consists of an article with a headline and photograph the whole of the article including
the headline and photograph has to be taken together and considered whether in its natural and ordinary meaning
which may be ascribed to it by ordinary men it is defamatory of the plaintiff. 34
It may be that the impression created by one part of the statement is that it is defamatory but this is not enough for
the statement has to be taken as a whole. In the classic words of Alderson, B, “the bane and antidote must be taken
together,” though it is often a debatable question whether the antidote is effective to neutralise the bane and in
determining this question, one may have to consider the mode of publication and the relative prominence given to
different parts. 35 The above rule that the statement must be read as a whole is not displaced by the fact that many
Page 4 of 72
readers may not read the whole of the statement or by the fact that different readers may understand it differently.
In cases where no legal innuendo is alleged, the court after reading the published statement as a whole “is required
to determine the single meaning which the publication conveyed to the notional reasonable reader.” 36
There are statements which without any reasonable doubt are defamatory. For example, it is libellous to publish
that a newspaper proprietor is a ‘libellous journalist,’ 37 or that a barrister is a ‘quack lawyer’ and ‘mounte-bank’
and an ‘imposter’, 38 or that a pleader got up a receipt with false recitals in respect of his remuneration, 39 or that
a Zamindar is an ‘insolent upstart’. 40 To say of an actor in two articles that he was ‘hideausly ugly’ could be
defamatory, 41 similary to say of a woman that she has been ravished is defamatory of her as tending to cause her
to be shunned and avoided although it involves no moral turpitude on her part. 42 It is libellous to write and publish
of a man that he is “a villain”, 43 a man of gross misconduct, 44 a man of straw, 45 and unfit to be trusted with
money. 46 An obituary notice of a living person, 47 and an ironical praise, 48 or a caricature of an amateur golfer
for advertising goods if his status is likely to be lost, 49 may be libels. The exhibition of a waxen effigy of a person
who had been tried for murder and acquitted in company of notorious criminals, may be defamatory because this
shows that though not found guilty he was a criminal himself. 50 It is not necessary that the act or conduct imputed
to the plaintiff should be prohibited by law and it would amount to defamation if the conduct imputed is disgraceful;
for example a statement alleging that the plaintiff got elected as President of the District Congress Committee by
paying money to the voters was held to be defamatory. 51 Making and publicly exhibiting an effigy of a person,
calling it by the person's name, and beating it with shoes, are acts amounting to defamation. 52 A wrote letters to
the husband of X, in which he alleged that X was a witch and had by her sorcery caused the death of some
relations of A. A also made similar statements to their castemen. It was held that A was liable. 53 The defendant
falsely published statements to the effect that plaintiff's wife was a woman of low caste, between which and the
plaintiff's own caste inter-marriage and intercourse of any kind were prohibited; upon this the plaintiff's brotherhood
expelled him and his wife from caste. It was held that the above facts furnished ample grounds for an action for
defamation. 54 Allegations that the plaintiff managing director of a co-operative Society indulged in malpractices
and was having illicit intimacy with several ladies were held to be perse defamatory. 55 Where the defendant
published in a newspaper of a woman, who was an instructress in physical culture and dancing, and who also ran
an industrial institution for poor Parsi girls, that she was unfit to carry on her profession or work, and that by carrying
it on she would be in a position to ruin the future of the girls taking their training in her classes, it was held that that
was a gross libel. 56 Words which imputed unworthiness to remain a member of a caste were held to be
defamatory. 57 To say that a person is insolvent or that he is in charge as director of a family company which is
insolvent may be construed as defamatory. 58 It was defamatory to publish an unskilful reproduction of an artist's
work. 59 A single letter may not be defamatory, but the cumulative effect of several letters may be so. 60
There are cases which give rise to sharp divergence of opinion as to the meaning which an allegedly offensive
statement could convey. In Lewis v. Daily Telegraph Ltd ., 61 the Daily Mail and the Daily Telegraph published
respectively news-items with headings “Fraud squad Probe Firm” and “Inquiry on Firm by City Police.” SALMAN, J.,
who tried the case, DAVIES L.J., in the Court of Appeal and LORD MORRIS in the House of Lords were of opinion
that the words quoted above were capable of conveying that the firm was guilty of fraud. On the other hand,
HOLROYD PEARCE, L.J., HOVERS, J., LORDS REID, HODSON and DEVLIN were of the view that the words
could not convey guilt but only suspicion and could be defamatory only to that extent.
In England the rule to be applied by a Judge in deciding whether or not words were capable of a defamatory
meaning is whether a reasonable jury would be justified in finding that the words complained of were defamatory,
and, notwithstanding the various inoffensive meanings which the words complained of might be said to be capable
of bearing, it should be impossible to hold that they were not capable of a defamatory meaning. 62 In a jury trial, it
is for the Judge to rule whether the words are capable of bearing each of the meanings contended for by the
plaintiff and to direct the jury clearly if the words are incapable of bearing any meaning alleged by the plaintiff. 63
But if the words are capable of bearing a meaning alleged by the plaintiff the question whether they were
understood in that sense or in some other sense contended for by the defendant should be left to the jury. 64 In
India, where a defamation suit is not tried by jury, it is for the Judge to decide finally the meaning of the words
alleged to be defamatory bearing in mind the test of ordinary man. In a case of libel, it is not necessary to prove the
actual loss of reputation; it is sufficient to establish that the defamatory statements made could damage one's
reputation. 65
Page 5 of 72
3(iii)(a) Defamatory statement must refer to plaintiff
In an action for defamation the plaintiff must show that the defamatory statement refers to him. It is not necessary
for this purpose that the plaintiff should have been described by his own name. It is sufficient if he is described by
the initial letters of his name, or even by a fictitious name, provided he can satisfy the Court that he was the person
referred to. 66 It is immaterial whether the defendant intended the defamatory statement to apply to the plaintiff, or
knew of the plaintiff's existence, if the statement might reasonably be understood by those who knew the plaintiff to
refer to him. The reason is that a man publishing a libel does so at his own risk. “A person charged with libel cannot
defend himself by showing that he intended in his own breast not to defame or that he intended not to defame the
plaintiff, if in fact he did both.” 67 The intention or motive with which the words are used is immaterial, and, if the
matter complained of does refer, or would be deemed by reasonable people to refer, to the plaintiff, the action can
be maintained. 68 “Liability for libel does not depend on the intention of the defamer; but on the fact of defamation.”
69 It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can
make out that he is the person meant. 70
In E. Hulton & Co. v. Jones 71 an article was published by the defendants in the Sunday Chronicle by their Paris
Correspondent describing a motor festival at Dieppe in which reference was made to one Artemus Jones, a church
warden, at Peckham and it was stated that he was having a gay time and was in the company of a woman who was
not his wife. The plaintiff who was a barrister was baptised as Thomas Jones but later took the additional name of
Artemus. He was not a church-warden, he did not live at Peckham and had not been to the Dieppe festival. The
plaintiff accepted that the writer of the article and the editor of this paper knew nothing of him and did not intend the
article to refer to him. Plaintiff's witnesses, however, deposed that they took the article to refer to him. CHANNEL, J.
in his direction to the Jury laid down the law as follows: “The real point upon which your verdict must turn is, ought
or ought not sensible and reasonable people reading this article to think that it was a mere imaginary person. If you
think any reasonable person would think that, it is not actionable at all. If, on the other hand, you do not think that,
but think that people would suppose it to mean some real person—those who did not know the plaintiff of course
would not know who the real person was, but those who did know of the existence of the plaintiff, would think that it
was the plaintiff—then the action is maintainable.” The jury awarded damages and judgment was entered for the
plaintiff. Appeals to the Court of Appeal and House of Lords were dismissed. LORD LOREBURN, L.C. 72
expressly approved the law stated by CHANNEL, J. It is not even necessary that the plaintiff should have been
named at all nor is it necessary that the statement in question should contain a key or pointer indicating that it refers
to him. In Morgan v. Odham's Press Ltd . 73 it was published in a newspaper article that a girl had been kidnapped
by a dog-doping gang and kept in a flat at Kilburn during a specified week. The girl was staying in the plaintiff's flat
at Cricklewood in the previous week. The plaintiff produced witnesses who deposed that on reading the article, they
understood that he was in someway connected with the gang. The jury awarded damages to the plaintiff. The Court
of Appeal dismissed the claim on the ground that the article contained no key or pointer which referred to the
plaintiff. The House of Lords reversed the Court of Appeal and held that it is not essential that the plaintiff should be
named or there should be some key or pointer referring to him and that the jury could reasonably hold that readers
of the articles would ignore the discrepancies of place and time and think of the plaintiff while reading the article. It
was also held that it was immaterial that no person who read the defamatory statement believed in it.
The Court of Appeal in Newstead v. London Express 74 has made it possible that a statement referring to a real
person and alleging something true about him may yet be defamatory of another person bearing the same name. In
that case, the statement was that “Harold Newstead, thirty year old Camberwell man” had been found guilty of
bigamy. This statement was true of a barman of that name of Camberwell. The plaintiff bearing the same name and
aged about thirty, who carried on hair dressing business at Camberwell and about whom the statement was untrue
succeeded in recovering damages in an action for defamation.
Although when a statement on the face of it is not defamatory, a subsequent statement cannot be relied upon to
show that it was defamatory, but when the statement is defamatory and the only question is as to the identity of the
person intended to be defamed, a subsequent statement by the same party may be referred to. 75 When the
statement does not expressly refer to the plaintiff, extrinsic evidence is admissible to show that persons knowing the
plaintiff understood the statement to relate to him. 76
Page 6 of 72
3(iii)(b) Innuendo
Words are prima facie defamatory when their natural, obvious and primary sense is defamatory. Words prima facie
innocent are not actionable unless their secondary or latent meaning is proved by the plaintiff. Where the words
alleged to be defamatory do not appear to be such on their face, the plaintiff must make out the circumstances
which made them actionable, and he must set forth in his pleading the defamatory sense he attributes to them. 77
Such explanatory statement is called an innuendo . An innuendo is an explanatory averment in the statement of
claim defining the meaning which the plaintiff assigns to the words complained of or specifying the plaintiff as the
person to whom they apply. It is the office of an innuendo to define the defamatory meaning which the plaintiff sets
on the words; to show how they come to have that defamatory meaning; and also to show how they relate to the
plaintiff whenever that is not clear on the face of them. 78 In the absence of an innuendo , no evidence can be
admitted to prove a special meaning, and the suit will be dismissed. An innuendo is necessary where the imputation
is made in an oblique way, or by way of question, exclamation, or conjecture, or irony. An innuendo , properly so
called, which provides a separate cause of action, must be supported by extrinsic facts or matter and cannot be
founded on mere interpretation. 79 It has already been seen that there is no rule that, before an article could be
said to be defamatory of a person, it must contain within itself some ‘key or pointer’ indicating that it referred to him;
where necessary extrinsic evidence is admissible to import a defamatory meaning to words otherwise innocent. 80
The cause of action based on natural or ordinary meaning is materially different from a cause of action based on
some special meaning derived from special circumstances. There may also be difference of opinion as to what is
the ordinary meaning of certain words without reference to any special circumstances. If that is the position, the
plaintiff will state in the plaint what in his view is the natural and ordinary meaning and the person or persons to
whom the statement was published, save in the case of a newspaper or periodical or a book which is published to
the world at large. 81 When the plaintiff relies on the natural and ordinary meaning without reference to any special
circumstances and pleads the meaning which according to him is the natural meaning, such a plea is also popularly
called as pleading an innuendo . 82 But this is materially different from a cause of action based on a true or legal
innuendo which arises when the plaintiff relies on some special circumstances which convey to some particular
person or persons knowing these circumstances a special defamatory meaning. 83 The plaintiff when he bases his
claim on a legal in-nuendo , must in his statement of claim specify the particular person or persons to whom the
statement was published and the special circumstances known to that person or persons, for the simple reason that
these are the ‘material facts’ on which he relies, and must rely for this cause of action. 84 In this cause of action
(legal innuendo ) there is no exception in the case of a newspaper, because the words would not be so understood
by the world at large, but only by the particular person or persons who know the special circumstances. 85
Where the plaintiff has succeeded in proving that certain statements published in a newspaper were clearly
defamatory of the plaintiff, it is immaterial whether the plaintiff succeeds or fails in establishing the innuendo s
alleged by him. If he fails, he can treat the unproved innuendo as surplusage and still contend that the words of the
publication are defamatory in their natural and ordinary meaning. 86
If a statement is itself innocent, that is not libellous, it is not possible, by pleading innuendo s, to make the
defendant responsible for defamatory statements by other persons which are not either expressly or by implication
approved, adopted or repeated in the statement by the defendant in respect of which the action is brought. 87
The case of Morgan v. Odhams Press Ltd . 88 which has already been noticed 89 is illustrative of a legal innuendo
. The offending article did not refer to the plaintiff at all. It only stated that a girl had been kidnapped by a dog-
doping gang and kept in a flat. The plaintiff pleaded a special circumstance that the girl at the relevant time stayed
in his flat and also pleaded that a special meaning was attributed by those who knew this circumstance that the
plaintiff was a member of the gang. Similarly, in Cassidy v. Daily Mirror Newspaper Ltd ., 90 a man named Cassidy
who was also known as Corrigan had gained notoriety in racing circles and in indiscriminate relations with women.
At a race meeting, he posed, in company with a lady to a race photographer to whom he said that he was engaged
to marry the lady and the photographer might announce it. The photograph was published by the defendants with
the following underneath : “ Mr. M. Corrigan , the racehorse owner and Miss X, whose engagement has been
announced.” The plaintiff was married to Mr. Cassidy and called herself Cassidy or Mrs. Corrigan. She lived in a
Page 7 of 72
flat. The husband occasionally came and stayed in the flat and met her acquaintances. The plaintiff's case
depended on the innuendo that the words published conveyed to her acquaintances that she was an immoral
woman and cohabited with Mr. Cassidy without being married to him. Some female acquaintances deposed in her
favour. The jury awarded damages and the verdict was upheld by the Court of Appeal. In Tolley v. J.S. Fry & Sons
Ltd ., 91 a caricature of the plaintiff, an amateur golfer, was published for advertising Fry's chocolate. The plaintiff
did not eat Fry's chocolate and the advertisement was made without his permission. The plaintiff recovered
damages on the innuendo that the use of his portrait gave rise to the impression that he had permitted it to be used
for reward and had thus prostituted his reputation as an amateur golfer.
3(iii)(c) Defamation of deceased person
It is not a tort to defame a deceased person. 1 This legal proposition is implicit in the requirement that the plaintiff
to succeed in a suit for defamation mustprove that the offending words referred to him. Further such an action does
not survive for the benefit of the plaintiff's estate on his death. But if the statement though referring expressly to the
deceased reflects upon the plaintiff and affects his reputation an action will be maintainable. For example, if the
statement is that W (the deceased mother of the plaintiff) was a prostitute, the plaintiff may sue in defamation on the
ground that the statement affects his reputation but not on the ground that it defames his deceased mother. The
person defaming a dead person may, however, be criminally prosecuted if the imputation would have injured the
reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. 2
3(iii)(d) Defamation of class of persons
It may amount to defamation to make an imputation concerning members of a definite body of persons, e.g., a firm
of partners. If a libel applies to a class of persons, an individual can only bring an action if he can show that it
applies to himself. If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is
something to point to the particular individual. 3 If the plaintiff can show that he was specially referred to, it is
immaterial whether the words complained of described him by his own name or its initial letter, 4 or by asterisks, 5
or by fictitious name, 6 or by name of somebody else. 7 If a defamatory statement made of a class or group can
reasonably be understood to refer to every member of it, each one has a cause of action. 8 As explained by LORD
ATKIN: “The only relevant rule is that in order to be actionable the defamatory words must be understood to be
published of and concerning the plaintiff. It is irrelevant that the words are published of two or more persons if they
are proved to be published of him, and it is irrelevant that the two or more persons are called by some generic or
class name. There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a
particular building is not actionable, if thewords would reasonably be understood as published of each member of
the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminate number of
persons described by some general name generally fails to be actionable is the difficulty of establishing that the
plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalisations is
ingrained in uneducated and vulgar minds, or the words are occasionally understood to be a facetious
exaggeration. Even in such cases, words may be used which enable the plaintiff to prove that the words
complained of were intended to be published of each member of the group or at any rate of himself.” 9
A partnership firm cannot maintain a suit for libel or slander because a firm name is merely a compendious artificial
name adopted by the partnership and isnot itself a legal entity. The remedy lies at the hands of its individual
members who can personally sue if they have been defamed. 10
3(iii)(e) Defamation of company or corporation
In the case of a company or a trading corporation, words calculated to reflect upon it in the way of its property or
trade or business, and to injure it therein, are actionable without proof of special damage; but if they refer only to the
personal character or reputation of its officers, then proof of special damage is necessary. 11
The rule of English law that a trading corporation or company can sue in libel for general damages when it could
prove no financial loss has been held to be not incompatible with the European convention enforced by the Human
Rights Act, 1998 and has been reaffirmed. 12
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3(iii) (e1) Defamation of Government, Local Authorities and Political Parties
In a democracy governed by the rule of law where freedom of speech is a fundamental right “every citizen has a
right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This
absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not
be in any way fettered in his statements, and where the public service or due administration of justice is involved he
shall have the right to speak his mind freely.” 13 In a free democratic society “those who hold office in government
and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter
such criticism amounts to political censorship of the most insidious and objectionable kind.” 14 Further, “what has
been described as the ‘chilling effect’ induced by the threat of civil actions for libel is very important. Quite often the
facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving
those facts is not available. This may prevent the publication of matters which it is very desirable to make public.”
15 The above considerations have led to the rule which is the same in United States, 16 United Kingdom, 17
South Africa 18 and India 19 that “so far as the government, local authority and other organs and institutions
exercising governmental power are concerned they cannot maintain a suit for damages for defaming them.”
The above principles also apply to political parties seeking power at an election. 20
3 (iii)(e2) Defamation of Public Officials A. General
The right to freedom of speech has also been interpreted in the United States to bar a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless the statement was made with knowledge
that it was false or with reckless disregard of whether it was true or false. 21 The above view has also been
accepted in India. 22 In the same context it has been laid down that it would be enough for the defendant to prove
that he acted after a reasonable verification of the facts and that it is not necessary for him to prove that what he
has written is true. 23 Of course, where the publication is proved to be false and actuated by malic or personal
animosity the defendant would be liable for damages. 24
In Australia freedom of communication on matters of government and politics has been held to be an indispensable
incident of the representative government under the constitution which expressly contains no fundamental rights.
This will include publication relating to a former prime minister or minister in respect of matters while he held that
office. 25 But to seek protection in a suit for defamation the publisher will have to show that his conduct in
publishing the matter was reasonable. As a general rule, a defendant's conduct in publishing material giving rise to
a defamatory imputation will not be held reasonable unless the defendant had reasonable ground for believing that
the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the
material and did not believe the imputation to be untrue. Further, the defendant's conduct will not be held
reasonable unless the defendant had sought response from the person defamed and published the response (if
any) made except in cases where the seeking or publication of the response was not practicable or it was
unnecessary to give him an opportunity to respond. 26
In England the House of Lords 27 has, however, not accepted that any principle other than the common law
approach of qualified privilege to misstatement of facts should be applied to defamatory statements relating to
persons holding or who had held elected offices or that ‘political information’ should be developed as a new
category of qualified privilege, whatever the circumstances. Such a development according to the court, would not
provide adequate protection for reputation which was an integral part of the dignity of the individual and formed the
basis of many decisions fundamental to the well being of a democratic society and that it was unsound in principle
to distinguish political discussion from discussion of other matters of serious public concern. The court was of the
view that the elasticity of the common law principle of qualified privilege based on a consideration of all the
circumstances of the publication, enabled the court to give appropriate weight, in today's conditions, to the
importance of freedom of expression by the media on all matters of public concern and confined interference with
the freedom of speech to what was necessary in the circumstances of the case. Those circumstances are not to be
considered separately from the dutyinterest test, but rather to be taken into account in determining whether that
test, was satisfied or, putting it more simply and directly, whether the public was entitled to know the particular
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information. The matters to be taken into account (without meaning the test to be exhaustive) are : the seriousness
of the allegations, the nature of the information and the extent to which the subject was a matter of public concern,
the source and status of the information, the urgency of the matter; whether comment had been sought from the
plaintiff; whether the article contained the gist of the plaintiffs’ story; the tone of the article and the circumstances of
the publication including the timing.
B. Reynold Defence
Reynold v. Times News Papers Ltd. 28 Reynolds was a former Prime Minister of Ireland connecting whom a report
was published in the British mainland edition of Sunday Times. The allegations contained in the report against
Reynolds were found to be untrue by the jury. The trial judge held that the defence of qualified privilege was not
established and awarded nominal damages. The Court of Appeal also held that the publishers would not be able to
rely on the defence of qualified privilege but ordered a new trial. The publishers appealed to the House of Lords.
The House did not accept the submission to recognize a new category of qualified privilege on the lines as
accepted in Australia to the dissemination of political information. But the House unanimously agreed that the
traditional ambit of qualified privilege should be extended somewhat to afford some protection to communication of
information and comment on political, matters by ‘responsible journalism’. Lord Nicholls in Reynolds 29 set out a
number of matters to be taken into account in coming to that decision. He made it clear that the list was not
exhaustive, but was illustrative only and the weight to be given to those and other relevant factors would vary from
case to case. Depending upon the circumstances of the case they include the following:
“(1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and
the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the
subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct
knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps
taken to verify the information. (5) The status of the information. The allegation may have already been the
subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable
commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not
possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article
contained the gist of the plaintiff's side of the story. (9) The tone of the article. A newspaper can raise queries
or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the
publication, including the timing.”
The judicial basis of this extension in Reynolds has been a matter of debate whether it is different from the
traditional form of privilege as held by Lord Hoffman in Jameel v. Wall Street journal 30 or it is built upon the
traditional duty interest privilege as held by the majority in that case.
In Jameel 31 , the claimants were a Saudi Arabian Trading Company and its general manager who brought a libel
action against the defendant, a respected and influential newspaper for publishing an article in which they were
named. The newspaper advanced the Reynolds Defence’ of ‘responsible journalism’ which succeeded in the House
of Lords.
But there is now no doubt as held in Seaga v. Harper 32 that Reynold's case “was intended to give and has given a
wider ambit of privilege to certain types of communication to the public in general than would have been afforded by
the traditional rules of law”. 33 This extension known as ‘ Reynolds defence ’ is not restricted to the press or
broadcasting media but covers “any person who publishes material of public interest in any medium, so long as the
conditions framed by Lord Nicholls as being applicable to responsible journalism are satisfied”. 34 The matters set
out by Lord Nicholls are not like a statute, nor are they a series of conditions each of which has to be satisfied or
tests which the publication has to pass. “The standard of conduct required of the publisher of the material must be
applied in a practical manner and have regard to practical realities. The material should be looked as a whole, not
dissected or assessed piece by piece, without regard to the whole context”. 35 In Seaga v. Harper 36 the
defendant was the leader of opposition in Jamaica. In a public meeting organized by his party at which
representatives of the press and broadcasting media were invited, he spoke about the impending appointment of a
Commissioner of Police and made a statement about the claimant one of the Deputy Commissioners who brought
proceedings for slander. The defendant relied upon Reynolds principles for his defence. The House of Lords held
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that Reynolds principles applied but the defence failed because the defendant failed to take sufficient care to check
the reliability of the information which he disseminated.
3 (iii)(e3) Defamation of public figures
All that has been stated above in respect of public official has also been applied in the United States to all
statements about public figures in or out of government for example a prominent football coach. 37 The reasoning
behind it is that public figures like public officials have an influential role in ordering society; they have access to
mass media communication both to influence the policy and to counter criticism of their views and activities; and a
citizen has a legitimate and substantial interest in the conduct of such persons. 38
3(iii)(f) Unintentional defamation
From E. Houlton & Co. v. Jones , 39 Cassidy v. Daily Mirror Newspapers Ltd ., 40 and Newstead v. London
Express , 41 cases which have already been noticed, it is quite clear that under the common law a person may
become liable for defamation without any intention or fault on his part. Although in such cases normally the awards
of damages are of very small sums, a farthing only in Newstead's case, 42 yet there was protest by authors and
writers who could be made liable while using even a fictitious name in their writings depicting a disparaging
character if the name used resembled accidentally the name of some living person. In the United States imposition
of liability for defamation without any fault was held to be violative of the freedom of speech and the press and
replaced by a minimal requirement of proven fault. 43 Statutory reform was introduced in England by the
Defamation Act, 1952 (since adopted also in New South Wales, Tasmania and Newzealand) 44 which provides for
exoneration from liability of a defendant for innocent publication who has made an offer of amends. The Act defines
innocent publication and lays down the steps which the defendant has to take for getting exoneration. Words are
innocently published if (a) the publisher did not intend to publish them of and concerning the party aggrieved and
did not know the circumstances by virtue of which they might be understood to refer to him; or (b) the words were
not defamatory on the face of them and the publisher did not know of the circumstances by virtue of which they
might be understood to be defamatory of that person, and in either case the publisher exercised all reasonable care
in relation to the publication. If a person claims that the publication was innocent, he can make an offer of amends
to the party aggrieved. Offer of amends is an offer to publish or join in the publication of a suitable correction or
apology and, where copies of the offending document or record have been distributed, to take such steps as are
reasonably practicable for notifying persons to whom distribution has been made that the words are alleged to be
defamatory by the party aggrieved. If the offer of amends is accepted by the party aggrieved, that extinguishes the
cause of action for defamation. If the offer is not accepted, it can be pleaded in defence provided the publication
was innocent as defined above, and, if the publication was of words of which the defendant was not the author, the
words were written by the author without malice. Although there is no corresponding Indian statute, the principle of
the English Act can be applied in India on the ground that it is more just and equitable as compared to the common
law which it has modified. 45
3(iv) Publication
Communicating defamatory matter to some person other than the person of whom it is written is publication in its
legal sense. If the statement is sent straight to the person of whom it is written, there is no publication of it, for you
cannot publish a libel of a man to himself. 46 That cannot injure his reputation, though it may injure his self-esteem.
A man's reputation is the estimate in which others hold him, not the good opinion which he has of himself. The
words complained of should be communicated to some person other than the plaintiff. 47 But if the defamatory
matter be transmitted in a telegram, 48 or be written on a postcard and sent to the person libelled, 49 it is a
publication. Facilities for postal and telegraphic communications are not to be used for the purpose of easily
disseminating libels. Again, if the defendant knows that the letters sent to the plaintiff are usually opened by his
clerk 50 or he ought to have anticipated that they would be opened by his spouse 51 and the defendant sends a
libellous letter which is in fact opened by the clerk or the spouse, the defendant is liable. But if a servant in breach
of his duty and out of curiosity takes a letter out of an unclosed envelope and reads it, there is no publication. 52
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Under English Law each publication is a separate tort. The English Law and the community law also do not
recognise any global theory of jurisdiction and separate actions in each relevant jurisdictions are permissible. 53
A communication to a husband or wife of a charge against the wife or husband constitutes a sufficient publication.
54 But uttering of a libel by a husband to his wife is no publication on the common law principle that husband and
wife are one. 55 The Supreme Court of India in a criminal prosecution for defamation under the Penal Code has
held that this rule of common law has no application in the Indian Criminal Law and that a letter written by the
husband to the wife containing a libel against the wife's father and passed on by the wife to him can be admitted
into evidence if it can be proved without calling the wife as a witness. 56
A person cannot excuse himself on the ground that he published the libel by accident, or mistake, 57 or in jest, 58
or with an honest belief in its truth. Publication need not be intentional. It is sufficient if it is due to the negligence of
the defendant, e.g., circulating a book containing the libel. 59 If there is no negligence, then the innocent
disseminator of defamatory matter is not liable, e.g., where a newsvendor sells a paper containing a defamatory
statement. 60 Where the actual publisher of a libel is quite unconscious of the nature of his act he will not be liable
though his employer may be. An internet server provider which performed no more than a passive role in facilitating
postings on the internet could not be held liable as a publisher at common law in a libel action in respect of
defamatory statements posted on websites. 61
Where there is a duty, whether of perfect or imperfect obligation, as between two persons, which forms the ground
of privileged occasion, the person exercising the privilege is entitled to take all reasonable means of so doing, and
those reasonable means may include the introduction of third persons, where that is reasonable and in the ordinary
course of business, e.g., where a business communication containing defamatory statements concerning the
plaintiff is communicated by the defendant to his clerks in the reasonable and ordinary course of business, that will
not destroy the privilege. 62 If a business communication is privileged, as being made on a privileged occasion, the
privilege covers all incidents of the transmission and treatment of that communication which are in accordance with
the reasonable and usual course of business; and it is in accordance with the reasonable and usual course of
business for a businessman to dictate his business letters to a typist, even though these letters contain statements
defamatory of a third person. 63
Publication-examples. —A solicitor, acting on behalf of his client, wrote and sent to the plaintiff a letter containing
defamatory statements regarding her. The letter was dictated to a clerk in the office, and was copied into the letter-
book by another clerk. In an action against the solicitor for libel it was held that the publication to his clerks was
necessary and usual in the discharge of his duty to his client, and was made in the interest of the client. 64 Where
the plaintiff told some friends a ludicrous story about himself, and the defendant published it in his newspaper,
simply for the purpose of amusing his readers, and believing that the plaintiff would not object, the defendant was
held liable. 65 The plaintiff was elected to the office of guardian of the poor for a certain parish. The defendants,
rate-payers of the parish and entitled to vote at the election, sent to the board of guardians a letter complaining that
the plaintiff was guilty of treating electors with drink and that he had tampered with some of the voting papers. The
board of guardians could take no action in the matter and had no power to avoid the plaintiff's election, though the
defendants honestly believed that the board of guardians was the proper authority to whom to apply. It was held
that the occasion was not privileged, and the defendants were liable for the statements which the plaintiff had
proved to be untrue. 66
The defendant sent a registered notice to the plaintiff's home address which contained defamatory allegations
against him. The notice was in the Urdu script and the plaintiff was not conversant with that script. He got the notice
read over by another person in the presence of some other persons. It was held that in the absence of a pleading
and finding that the defendant wrote the notice in the Urdu character knowing that the plaintiff did not know Urdu
and therefore it would necessitate asking somebody to read the notice to him, the defendant was not responsible
for the publication of the libellous matter. 67
3(v) Newspaper libel

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Newspapers are subject to the same rules as other critics, and have no special right or privilege, and in spite of the
latitude allowed to them, they have no special right to make unfair comments, or to make imputations upon a
person's character, or imputations upon or in respect of a person's profession or calling. The range of a journalist's
criticism or comments is as wide as that of any other subject, and no wider. Even if in a sense newspapers owe a
duty to their readers to publish any and every item of news that may interest them, this is not such a duty as makes
every communication in the paper relating to a matter of public interest a privileged one. 68 Just because
something interests the public, it is not necessarily in public interest to publish it. 69
A Journalist who publishes complaints of a defamatory nature which are not true is not specially privileged; on the
contrary he has a greater responsibility to guard against untruths for the simple reason that his utterances have a
larger publication than have the utterances of an individual, and they are more likely to be believed by the ignorant
by reason of their appearing in print. 70
A journalist like any other citizen has the right to comment fairly and, if necessary, severely on a matter of public
interest, provided the allegation of facts he has made are accurate and truthful, however, defamatory they may be
otherwise. Since his right to comment on matters of public interest is recognised by law, the journalist owes an
obligation to the public to have his facts right. 71 In reporting or making comments on matters of public interest the
newspaper must follow the rule of `responsible journalism’ as held in Reynolds v. Times Newspapers Ltd. 72
Investigative journalism does not enjoy any special protection. Therefore, when newspapers publish accusations of
criminal guilt against a person as a result of their investigation, they do so at their own risk and they do not enjoy
any qualified privilege. 73
Newspapers are not compelled to disclose the source of their information at an interim stage in answer to
interrogatories. This rule is known as the “newspaper rule” and has been applied in India. 74 But except in respect
of administration of interrogatories, newspapers have never been held to enjoy the privilege of not being
compellable to disclose the sources of their information. 75 The courts have no doubt an inherent wish to respect
the confidentiality of information between a journalist and his sources, but the journalists and the information media
have no privilege protecting them from the obligation to disclose their sources of information if such disclosure is
required by the court in the interest of justice. 76 The matter is now governed in England by section 10 of the
Contempt of Courts Act, 1981 which provides that no court may require a person to disclose the source of
information contained in a publication for which he is responsible unless the disclosure is necessary in the interests
of justice or national security or for the prevention of disorder or crime.77 The section is so cast that a journalist is
prima facie entitled to refuse to reveal his source and a court may make no order compelling him to do so unless
the party seeking disclosure has established that it is necessary under one of the four heads of public interest
identified in the section viz. , in the interests of justice or national security or for the prevention of disorder or crime.
78 The word justice in the phrase ‘interests of justice’ is not confined to administration of justice in the course of
legal proceedings in a court of law. It is in ‘the interests of justice’ that persons should be enabled to exercise
important legal rights and to protect themselves from serious legal wrongs whether or not resort to legal
proceedings in a court of law will be necessary to attain those objectives. The judge's task in determining whether
disclosure is necessary ‘in the interests of justice’ will be a balancing exercise. The task will be to weigh in the
scales the importance of enabling the ends of justice to be attained on the one hand against the importance of
protecting the source on the other hand. In this balancing exercise, it is only if the judge is satisfied that the
disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege
against disclosure that the threshold of necessity will be reached to enable him to order disclosure. 79
If a libel appears in a newspaper, the proprietor, the editor, the printer, and the publisher are liable to be sued either
separately or together. In all cases of joint publication each defendant is liable for all the ensuing damage. The
proprietor is liable for any libel which appears in its columns even though the publication is made in his absence,
without his knowledge, or even contrary to his orders. 80
Where a libel is contained in a newspaper the sale of each copy of the newspaper containing the libel is prima facie
a publication thereof, rendering the distributor as well as the principal responsible for the libel. But the defendant is
excused if he can prove (1) that he did not know that it contained a libel; (2) that his ignorance was not due to any
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negligence on his own part; and (3) that he did not know, and had no ground for supposing, that the newspaper
was likely to contain libellous matter. 81 This principle is only applicable where the defendant is a person who is
not the printer or the first or main publisher of a work which contains a libel, but has only taken a subordinate part in
disseminating it. 82
The principle will thus cover only persons concerned in the mechanical distribution of the matter such as news-
agents or newspaper vendors, librarians, booksellers, bookbinders and carriers. On this point LORD DENNING,
M.R., in Goldsmith v. Sperrings Ltd ., 83 observed : “The printers and publishers are of course, responsible for
every libel in them (newspapers and periodicals). But are the newspaper agents who sell them also liable to be
sued? Is the burden on them to prove their innocence? The distributors of newspapers and periodicals are nothing
more than conduit pipes in the channel of distribution. They have nothing whatsoever to do with the contents. They
do not read them, there is no time to do so. Commonsense and fairness require that no subordinate distributor,
from top to bottom, should be held liable for a libel contained in it unless he knew or ought to have known that the
newspaper or periodical contained a libel on the plaintiff which could not be justified or excused; and I should have
though that it is for the plaintiff to prove this. I suppose that there may be some publications which are so bad, so
prone to libel anyone without just cause or excuse, that no distributor should handle them; or at any rate should do
so only at his peril. But there would have to be very strong evidence before it reached that point. Short of that, I do
not think any distributor should be held liable simply because he distributed a newspaper or periodical.” 84
Where a statement made by a witness in judicial proceedings is reported and commented on in a newspaper, the
fact that the statement turns out to be false does not destroy a plea of fair comment in respect of comment based
on it in subsequent proceedings for libel. 85
4. SLANDER
(i) English Law
As in the case of a libel, it must be proved that the words complained of are (1) false, (2) defamatory, (3) published
by the defendant, and in addition that (4) some special damage has resulted from their use.
Where a document containing defamatory statements is published by being read out to a third person, or where the
publication of the defamatory statement is to a clerk to whom it is dictated, the communication in either case
amounts to slander and not to libel. 1
The special demage must appear to be the natural consequence of the words spoken, 2 e.g., the loss of a
customer, 3 or the loss, 4 or refusal, 5 of some appointment or employment, 6 or the loss of a gift, 7 or of
hospitality of friends, 8 or the loss of the consortium of one's husband. 9 Mental anguish accompanied by the
impairment of the physical health of the person slandered is not such special damage as will enable a party to
maintain an action. 10 In this case an action was brought by husband and wife for slander, imputing incontinency to
the wife, alleging that by reason thereof, the wife became ill and unable to attend to her necessary affairs and
business, and that the husband was put to expense in endeavouring to cure her. It was held that no action lay. 11
Where the words are not per se defamatory in their ordinary sense, or have no meaning at all in ordinary
acceptation, an innuendo must be pleaded in order to admit evidence that in a peculiar sense they are defamatory.
12
Words not actionable without special damage. —To call a man a swindler, 13 or a cheat 14 , or a blackleg 15 , is
not actionable without special damage.
Too remote damage. —The plaintiff alleged that he had engaged a performer to sing at his oratorio, and that the
defendant published a libel concerning her in consequence of which she was prevented from singing from an
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apprehension of being hissed, whereby the plaintiff lost the benefit of her services; it was held that the injury
complained of was too remote. 16
An action of slander may be maintained, without proof of special damage, in the following cases:—
1 If a criminal offence (not necessarily an indictable offence) be imputed to the plaintiff. 17
2 If a contagious or infectious disorder, tending to exclude the plaintiff from society, be imputed to him.
3 If any injurious imputation be made, affecting the plaintiff in his office, profession, trade, or business, and the
imputation imputes to him unfitness for, or misconduct in, that calling. 18
4 If the plaintiff is a woman or girl, and the words impute unchastity or adultery to her. 19
In the above cases the imputation cast on the plaintiff is on the face of it so injurious that the Court will presume,
without any proof, that his reputation has been thereby impaired. Spoken words which afford a cause of action
without proof of special damage are said to be actionable per se .
Crime. —Spoken words are actionable if they impute a crime, that is to say, words which, in the opinion of the
tribunal which ultimately deals with the matter, appear to have been not necessarily intended by the speaker to
impute a crime, but are capable of being understood by the hearers as imputing a crime. 20 The crime or
misdemeanour must be one for which corporal punishment 21 may be inflicted, e.g., murder, 22 robbery, 23
perjury, 24 adultery, 25 theft, 26 tampering with the loyalty of sepoys, 27 etc. Mere liability to arrest is not
sufficient to make the crime one for which the offender can be said to suffer corporally. 28 Arrest is not a
punishment. Where the penalty is merely pecuniary, an action will not lie, even though in default of payment
imprisonment is prescribed by the statute, imprisonment not being the primary and immediate punishment for the
offence. 29
Words merely imputing suspicion of a crime are not actionable without proof of special damage. 30
Words imputing past conviction for an offence are actionable without proof of special damage as they cause other
people to shun that person and to exclude him from society. 31
Contagious disease. —Words imputing to the plaintiff that he has an infectious or contagious disease such as
leprosy, venereal disease, plague, itch, 32 etc. are actionable without proof of special damage. For the effect of
such an imputation is naturally to exclude the plaintiff from society. An assertion that the plaintiff has had such a
disease is not actionable because it is no reason why the company of such person should be avoided. 33
Office, profession, or trade.— Where words affect a plaintiff in his office, profession, or trade, and directly tend to
prejudice him therein, no further proof of damage is necessary. It must be shown that he held such office, or was
actively engaged in such profession or trade at the time the words were spoken. 34 It is not necessary that the
words should hold him up to hatred, contempt, or ridicule. 35 The words must impeach the plaintiff's official or
professional conduct or hisskill or knowledge. His special office or profession need not be expressly named or
referred to, if the charge made be such as must necessarily affect him in it. If a certain degree of ability, skill or
training be essential to the due conduct of his office or profession, words denying his skill and ability, or disparaging
his training, are actionable; for they imply that he is unfit to continue therein. The words must touch the plaintiff in
his office or profession. 36 But words which merely charge him with some misconduct outside his office, or not
connected, with his special profession or trade, will not be actionable. 37 For example, an imputation of immorality
against the head-master of a school, made without any relation to his position as a school-master, is not actionable
per se . 38 The Defamation Act, 1952, however, says that it shall not be necessary to allege or prove special
damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or
business.
A limited liability company can sue for slander without proof of actual damage where the slander relates to its trade
or business. 39
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To call a person, who is in the employment of a Jew, that he is a Jew-hater is actionable without proof of a special
damage as the words affect that person in relation to his business. 40 Similarly, it is defamatory to state of a
businessman that he was “not conversant with normal business ethics.” 41
The plaintiff sued the defendant for damages for slander as the latter got a tom tom made in the following words:
S.B.’s goods (S.B. was the plaintiff) are being sold by public auction. On a question whether these words suggest
the innuendo of the insolvency of the plaintiff it was held that the mere statement that the goods were being sold by
public auction without the addition that they were sold in pursuance of a decree or through the Official Receiver did
not by itself suggest the inference that the goods were sold by public auction because the owner of the goods did
not pay his debts. The words complained of did not suggest the innuendo that plaintiff was not solvent and that his
goods were being brought to sale by auction by the creditor. 42
Unchastity.— At common law words imputing unchastity to a woman were not actionable without proof of special
damage. But the Slander of Women Act, 1891 43 abolished the need of showing special damage in the case of
words which impute unchastity or adultery to any woman or girl.
4(ii) Indian Law
The common law rule that slander is not actionable per se has not been followed in India except in a few decisions.
The reason given is that the rule is “not founded on any obvious reason or principle,” and that it is not consonant
with “justice, equity and good conscience”. Both libel and slander are criminal offences under s. 499 of the Penal
Code and both are actionable in Civil Court without proof of special damage. 44
The Indian cases fall under the following categories, namely:—
Imputation of crime.— An action can be maintained where the words complained of impute the commission of a
criminal offence which is cognizable. Mere hasty expression spoken in anger or filthy abuse to which no hearer
would attribute any set purpose to injure character would, of course, not be actionable. If the crime imputed be one,
of which the plaintiff could not by any possibility be guilty and all who heard the imputation knew that he could not
by any possibility be guilty of it, no action lies, for the plaintiff is never in jeopardy nor is his reputation in any way
impaired. 45
Vulgar abuse. —In India, a distinction has been made between abusive language which amounts merely to an
insult and abusive language which is both insulting and defamatory. In the former case it has been held, following
the English law, that no action lies at all, 46 in the latter, that an action does lie even without proof of special
damage. The leading case on the subject is Parvathi v. Mannar , 47 In that case the defendant abused the plaintiff
and said that she was not the legally married wife of her husband, but a woman who had been ejected from several
places for unchastity. It was held that the defendant was liable though no special damage was proved. The point of
the decision appears to be that mental distress caused by abusive words which amount merely to an insult is not
actionable, but mental distress caused by words of abuse which are also defamatory is actionable and no special
damage need be proved. This, of course, is a departure, and a wholesome departure, from the common law of
England. Parvathi's case has been followed in numerous decisions where the words complained of were both
abusive and defamatory. 48 As against these decisions, there is an old Bombay case, 49 where it was held that
mere verbal abuse was actionable without proof of special damage, on the ground that it would cause an outrage to
the plaintiff's feelings. This case is not likely to be followed even in Bombay.
Insult, it may be observed, is an offence under s. 503 of the Indian Penal Code, if the provocation is such as to
cause a breach of the public peace.
The defence that the words complained of did not and were not understood to impute any defamatory meaning, but
were merely words of vulgar abuse, should be specifically pleaded in the written statement. 50
During the trial of a criminal case instituted by A against B for cheating, A was asked in cross-examination by B's
pleader whether B's firm was the largest firm of grain-dealers in the city, and A said “Yes”. Thereupon R, the
mukhtar, who was appearing for A in the case, interjected the remark, audible to several persons in Court, that B's
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firm was also the most dishonest in the city. The case terminated in a dismissal of the complaint. B then sued R for
damages for slander. It was held that the imputation was defamatory and was therefore actionable without proof of
special damage. 51 It would seem that the imputation was in the way of B's trade; if so, it would be actionable per
se under the English law also and the distinction made by the Court between the English and the Indian law of
slander was unnecessary.
The omission of a mere courtesy could not be taken to be equivalent to slandering or libelling a man, and is not an
actionable wrong. 52 A railway guard, having reason to suppose that a passenger travelling by a certain train from
Madras to Chingleput had purchased his ticket at an intermediate station, called upon the plaintiff and other
passengers to produce their tickets. As a reason for demanding the production of the plaintiff's ticket he said to him
in the presence of the other passengers, “I suspect you are travelling with a wrong (or false) ticket,” which was the
defamation complained of. The guard was held to have spoken the above words bona fide . It was held that the
plaintiff was not entitled to recover damages. 53
Imputing unchastity to a woman.— An imputation of unchastity to a woman is actionable in England under the
Slander of Women Act, 1891, 54 without proof of special damage. An allegation that a woman is a ‘lesbian’ is an
imputation of unchastity within the meaning of the Act, 55 At common law an imputation of unchastity to a woman
was not actionable. The English Act, however, does not extend to India. The question then arises whether in India
words imputing unchastity to a woman are actionable without proof of special damage. In a case which arose in the
town of Calcutta, the High Court of Calcutta applied the common law rule, and held that the words were not
actionable in the absence of proof of special damage. 56 In a case, however, which arose in the mofussil of
Calcutta, the same High Court held that such an imputation was actionable without proof of special damage, and,
further, that it was also actionable at the suit of the husband, as the imputation involved that the husband ate the
food cooked by an unchaste woman and had therefore lost his caste. 57 The Madras High Court has held that a
suit for defamation in respect of spoken words imputing unchastity is maintainable by a Hindu woman on the
Original Side of the High Court without proof of special damage. 58 The Bombay High Court has held that though
Parsis are governed by common law, yet words imputing adultery to a Parsi married woman are actionable without
proof of special damage as adultery with a married woman is an offence under the Penal Code. 59
Aspersion on caste.— It is actionable without proof of special damage to say of a high caste woman that she
belongs to an inferior caste. The action may be brought not only by the woman, but by her husband, for if the
husband himself is a high caste Hindu, the imputation would involve that he has married a low caste woman. 60
The plaintiff sued certain persons for damages for defamation, for having in the course of a caste inquiry declared
him an outcaste for committing adultery without giving him an opportunity to vindicate his character. It was held that
the defendants had not acted bona fide in making the declaration, and that the plaintiff was entitled to recover
damages. 61
5. REPETITION OF LIBEL AND SLANDER
It is no defence to an action for libel or slander that the defendant published it by way of repetition or hearsay. “Tale-
bearers are as bad as tale-makers.” Every repetition of defamatory words is a new publication and a distinct cause
of action. 62
The originator will be liable for the damage resulting from repetition.
(1) where the originator authorized or intended the repetition; 63 or
(2) where the repetition was the natural and probable consequence of his act; or
(3) where there was a moral obligation on the person in whose presence the slander was uttered to repeat it. 64
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Briefly stated the originator will be liable for repetition of the slander by a third person when it was just to hold him
liable e.g. when it was foreseeable that the slander was likely to be repeated. 65
Where the defendant imputed adultery to the plaintiff's wife in his absence, and she voluntarily repeated the slander
to her husband whereby he refused to cohabit with her, it was held that no action was maintainable against the
defendant. 66
6 DEFENCES
6(i) Justification by Truth
The truth of defamatory words is a complete defence to an action of libel or slander though it is not so in a criminal
trial. 67 Truth is an answer to the action, not because it negatives the charge of malice but because it shows that
the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect of
an injury to a character which he either does not, or ought not to, possess. 68 It would make no difference in law
that the defendant had made a defamatory statement without any belief in its truth, if it turned out afterwards to be
true when made. If the matter is true the purpose or motive with which it was published is irrelevant. The defendant
must show that the imputation made or repeated by him was true as a whole and in every material part thereof. 69
If A says that B told him that C was guilty of adultery, in a suit by C against A, A cannot succeed by merely proving
that in truth B told him like that but by proving that C was in fact found guilty of adultery. 70 But it is not necessary
to justify every detail of the charge or general terms of abuse, provided that the gist of the libel is proved to be in
substance correct, and that the details, etc. , which are not justified, produce no different effect on the mind of the
reader than the actual truth would do. 71 Thus, it is enough if the statement though not perfectly accurate is
substantially true, e.g., a statement that the plaintiff was imprisoned for three weeks for travelling in a train without
ticket, when in reality he was imprisoned for two weeks. 72 If there is gross exaggeration, the plea of justification
will fail, e.g., to say that a person has been suspended for extortion three times when he has been suspended only
once, 73 or to call an editor of a paper ‘a felon editor’ when he was once convicted. 74 It is not sufficient
justification to prove that there was some sort of rumour, it must be proved that it was true. 75 In case of two or
more distinct charges, the rule of common law is that each charge must be proved to be true to avail of the defence
of justification. 76 This rule has been altered in England by section 5 of the Defamation Act, 1952 which provides
that the defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words
not proved to be true do not materially injure the plaintiff's reputation having regard to the turth of the remaining
charges.
The defendant must make clear in the particulars of justification the case which he is seeking to set up and must
state clearly the meaning or meanings which he seeks to justify. 77 The scope of the defence of justification in a
defamation action does not depend on the way in which the plaintiff pleads his case but on the meanings which the
words published are capable of bearing; accordingly the defendant is entitled to plead justification of any alternative
meaning which those words are reasonably capable of bearing. 78
If the statement is false, it is no justification that the defendant honestly and on reasonable grounds believed it to be
true.
The maxim “the greater the truth the greater the libel” never had an application to civil actions for damages. In
criminal law truth is only a justification if it is shown that the publication was for the public good. According to the
Indian Penal Code, it is not enough that the words complained of are true, the defendant must then be prepared to
go further and prove that not only are the words true, but that it is also for the public benefit that they should be
published.79
6(ii) Fair and bona fide comment

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A fair and bona fide comment on a matter of public interest is no libel. 80 Thus, legitimate criticism is no tort; should
loss ensue to the plaintiff, it would be damnum sine injuria . 81 Matters of public interest are not to be understood in
a narrow sense. They include matters in which the public is legitimately interested as also matters in which the
public is legitimately concerned. 82
Some examples of matters of public interest are:—

(1) Affairs of State. Public acts of ministers and officers of State can be commented on. 83
(2) The administration of justice. 84
(3) Public institutions and local authorities. 85
(4) Ecclesiastical matters. 86
(5) Books, 87 pictures, 88 and works of art.
(6) Theatres, 89 concerts and other public entertainments. 90
(7) Other appeals to the public, e.g., a medical man bringing forward some new method of treatment and
advertising it, 91 a man appealing to the public by writing letters to a newspaper. 92
For the purposes of the defence of fair comment on a matter of public interest such matters must be (a) in which the
public in general have a legitimate interest, directly or indirectly, nationally or locally, e.g., matters connected with
national and local government, public services and institutions and (b) matters which are at public theatres and
performances of theatrical artists offered for public entertainment but not including the private lives of public
performers. 93
The word ‘fair’ embraces the meaning of honest and also of relevancy. The view expressed must be honest and
must be such as can fairly be called criticism. 94 The word “fair” refers to the language employed, and not to the
mind of the writer. Hence, it is possible that a fair comment should yet be published maliciously. 95 Mere
exaggeration or even gross exaggeration would not make the comment unfair. 96 But malice may negative
fairness. 97
Comment in order to be fair must be based upon facts, and if the defendant cannot show that his comments contain
no misstatements of fact he cannot prove a defence of fair comment. 98 Facts upon which the comment is founded
must be truly stated though later on they may not turn out to be true at all. A fact may be truly stated and may yet be
utterly untrue. Where the facts on a matter of public interest have been correctly stated, the test of fair comment is
whether the opinion which is expressed in the comment even though it might be exaggerated, obstinate or
prejudiced was honestly held by the writer. 1 The comment to be fair must be based on true facts and must be
objectively fair in the sense that any man, however, prejudiced and obstinate could have honestly held the views
expressed. 2 The defence is concerned with protection of comments and not imputation of fact. 3 The law has
developed the rule that comments may only be defended as fair if it is comment on facts (meaning true facts) stated
or sufficiently indicated. 4 It must be indicated with reasonable clarity by the words themselves taking them in the
context and the circumstances in which they were published that they purport to be comment and not statement of
fact. 5 In Channel Seven Adelaide Pty. Ltd. v. Manock, 6 the facts were that one Anna Jones was found dead in
her bath and her fianc Henry Keogh was charged with her murder. Dr. Colin Manock, the plaintiff, was a pathologist
on whose evidence Keogh was convicted of murder. In a broadcast by Channel Seven, the defendant, the
presenter said: ‘The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that
don't add up. The evidence changed from one court to the next.’ While these words were being said a picture of the
plaintiff was displayed in the background, slightly above the presenter. It was held that the statement in the
broadcast was not comment but statement of fact implying that the plaintiff an expert witness concealed facts which
led to miscarriage of justice. As a result the defence of fair comment was struck out.
A comment though based on facts is to be distinguished from a fact. A comment is an expression of opinion and not
an assertion of fact, but it is difficult to draw a distinction between the two. The same words may in one context
amount to an opinion whereas in another context a statement of fact. 7 Illustrations (C) and (D), to sixth exception
of section 499 of the Penal Code may usefully be cited here. A says of a book published by Z—‘Z's book is foolish;
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Z must be a weak man; Z's book is indecent, Z must be a man of impure mind.” This is an example of comments on
Z's book. But if A says—”I am not surprised that Z's book is foolish and indecent, for he is a weak man and a
libertine.” In this example the allegation that Z is a weak man and a libertine is an assertion of fact and not an
expression of opinion. Critics are advised to take pains to see that the facts and comments are severable from one
another for if it is not clear that what he has stated is a comment he would be precluded in taking the defence of fair
comment. 8 Mention must also be made of section 6 of the Defamation Act, 1952 (English) which provides that in
an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of
opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved
if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words
complained of as are proved.
Every person has a right to comment on those acts of public men which concern him as a subject of the realm, if he
does not make his commentary a cloak for malice and slander. 9 “Liberty of criticism must be allowed, or we should
neither have purity of taste nor of morals. Fair discussion is essentially necessary to the truth of history and the
advancement of science.” 10
A journalist does not transgress the limits of fair comment if all material facts are truly stated in the article, though it
may be that there are one or two small deviations from absolute accuracy on minor points which have no influence
on the conclusions, and the conclusions are such as ought to be drawn from the premises by a critic bringing to his
work the amount of care, reason and judgment which is required of a journalist. 11 But if the statement of fact is
itself privileged, the plea of fair comment is not excluded by the fact that the statement is erroneous. 12
A writer in a public paper may comment on the conduct of a public man in the strongest terms but if he imputes
dishonesty, he must be prepared to justify it. 13 The privilege does not extend to calumnious remarks on the
private character of the individual. 14 A newspaper has no privilege beyond any other member of the community in
commenting on any matter of public interest. If the facts on which the comment purports to be made do not exist,
there is no defence. 15
The plea in an action for libel that in so far as the words complained of consist of allegations of fact they are true in
substance and in fact, and in so far as they consist of expressions of opinion they are fair comments made in good
faith and without malice on a matter of public interest is known as the “rolled up plea.” It is not a plea partly of
justification and partly of fair comment, but is a plea of fair comment only. 16 When fair comment is pleaded the
defendant must spell out with sufficient precision the comment which he seeks to say attracts fair comment so that
the plaintiff is able to know the case he has to meet. 17
A newspaper published a letter, which purported to give the name and address of the writer, commenting
unfavourably on a broadcast entertainment conducted by the plaintiff. In an action by the plaintiff it was held that it
was not necessary in order to sustain the defence of fair comment to prove that the writer of the letter honestly held
the opinion expressed in it, that there was no duty on a newspaper to verify the name and address of a
correspondent and therefore the fact that the writer had given a fictitious name and address was irrelevant and in
no way prevented the defendants from relying on the defence of fair comment. 18
Newspapers, being submitted to the public, are a proper subject-matter of comment in the same way as literary
works and the comment on them, in order to be fair, need not be confined to their literary content. 19
6(iii) Privilege
(iii)(a)-General
’Privilege’ means that a person stands in such relation to the facts of the case that he is justified in saying or writing
what would be slanderous or libellous in any one else. 20 The general principle underlying the defence of privilege
is the common convenience and welfare of society or the general interest of society. 21
Privilege is of two kinds :—(1) absolute, and (2) qualified.

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(1) A statement is absolutely privileged when no action lies for it even though it is false and defamatory, and
made with express malice. On certain occasions the interests of society require that a man should speak
out his mind fully and frankly, without thought or fear of consequences, e.g., in Parliamentary proceedings
or in the course of judicial, military, naval, or State proceedings. To such occasions, therefore, the law
attaches an absolute privilege. It is based upon the principle that interest of the community at large
overrides the interest of the individual. Recognised categories of absolute privilege are not to be lightly
extended. “The general rule is that the extension of absolute privilege is viewed with the most jealous
suspicion and resisted unless its necessity is demonstrated.” 22
(2) A statement is said to have a qualified privilege when no action lies for it even though it is false and
defamatory, unless the plaintiff proves express malice. In certain matters the speaker is protected if there is
absence of malice. These are—(1) communications made (a) in the course of legal, social or moral duty,
(b) for self-protection, (c) for protection of common interest, (d) for public good; and (2) reports of
Parliamentary and judicial proceedings, and proceedings at public meetings.
Where the defendant sets up the plea that the publication had a qualified privilege, the plaintiff must prove the
existence of express malice, which may be inferred either from the excessive language of the defamatory matter
itself or from any facts which show that the defendant was actuated by spite or some indirect motive. 23
The distinctions between absolute and qualified privilege are—

(1) In the case of absolute privilege, it is the occasion which is privileged, and when once the nature of the
occasion is shown, it follows as a necessary inference, that every communication on that occasion is
protected. But in the case of qualified privilege the defendant does not prove privilege until he has shown
how that occasion was used. It is not enough to have an interest or a duty in making a communication, the
interest or duty must be shown to exist in making the communication complained of. 24
(2) Even after a case of qualified privilege has been established, it may be met by the plaintiff proving in reply
actual malice on the part of the defendant. 25 The cases of absolute privilege are protected in all
circumstances, independently of the presence of malice.
6(iii)(b) Absolute privilege
Occasions absolutely privileged may be grouped under four heads :

1 Parliamentary proceedings.
2 Judicial proceedings.
3 Military and Naval proceedings.
4 State proceedings.
Parliamentary proceedings
Statements made by members of either House of Parliament in their places in the House, though they might be
untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however, injurious they
might be to the interest of a third person. 26 But this privilege does not extend to anything said outside the walls of
the House, or to a speech printed and privately circulated outside the House 27 or to a statement made outside the
House affirming what was said in Parliament even without repeating it. 28 For such a speech only, a qualified
privilege can be claimed. 29
A petition to Parliament is absolutely privileged. 30
Statements of witnesses before Parliamentary Select Committee of either House are also privileged. 31
The important public interest protected by the privilege is to ensure that a member or witness, when he spoke, was
not inhibited from stating fully and freely what he had to say. The courts and Parliament are both astute to
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recognise their respective constitutional roles and the courts do not allow any challenge to be made to what is said
or done within the walls of Parliament in performance of its legislative functions and protection of its established
privileges. These principles prohibit any suggestion to be made in a court proceeding (whether by way of direct
evidence, cross examination or submission) that statements made inparliament were lies, or were motivated by a
desire to mislead. These principles also prohibit any suggestion that proceedings in Parliament were initiated or
carried through into legislation in pursuance of the alleged conspiracy. The fact that the maker of the statement is
the initiator of the court proceedings could not affect the applicability of the above principles for the privilege
protected is the privilege of Parliament and not of an individual member. 32
Under the Parliamentary Papers Act, 1840, 33 all reports, papers, votes and proceedings ordered to be published
by either House of Parliament, are absolutely privileged. At common law the order of the House of Commons for the
publication and sale by booksellers of reports laid before the House did not exempt such booksellers from liability
for any defamatory matter in any such report. 34 The above statute was passed to alter the common law.
The question whether it is open to a member of Parliament or former member of Parliament, to bring a libel action
on a publication made outside Parliament, containing defamatory imputations concerning the MP's activities and
conduct as a member in Parliament, on which adverse findings were made by the Parliamentary Commissioner for
Standards, which were subsequently left undisturbed by the Standing Committee on Standards and Privileges and
by the House of Commons itself, was considered by the House of Lords in Hamilton v. Al Fayed. 35 It was held
that parliamentary privilege would have prevented the court from entertaining any evidence cross-examination or
submission which challenged the veracity or propriety of anything done in the course of parliamentary proceeding
for example, it would have been impossible for the MP to challenge the evidence relied upon by the parliamentary
committee against him and similarly the defendant would have been precluded in challenging the member's
conduct in Parliament. In such a situation it would not have been possible to have a fair trial of the issues involved
and the suit would have been stayed. But this eventuality did not arise in that particular case because of waiver of
privilege by the plaintiff MP which is permissible under section 13 of the Defamation Act, 1996 and the trial was
allowed to proceed. Section 13 in so far as relevant provides as follows : (1) Where the conduct of a person in or in
relation to proceeding in Parliament is in issue in defamation proceedings, he may waive for the purpose of those
proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in
Parliament being impeached or questioned in any court or place out of Parliament. (2) When a person waives that
protection (a ) any such enactment or rule of law shall not apply to prevent evidence being given, questions being
asked or statements, or submissions, comments or findings being made about his conduct and (b ) none of those
things shall be regarded as infringing the privilege of either House of Parliament.
Under 105[(]2[)] of the Constitution of India no member of Parliament shall be liable to any proceedings in any Court
in respect of anything said by him in Parliament,36 or in any committee thereof. The Article further provides that no
person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings. There is a similar provision in Article 194(2) applying to the Legislatures of
States. The privilege under these Articles does not extend to the publication in a private newspaper of a speech
made by a member within the four walls of the House, which contains defamatory matter and which is published at
the instigation of such a member. 37 No privilege under these Articles can be obtained in respect of a publication
not under the authority of Parliament or Legislature. 38
Judicial Proceedings
No action of libel or slander lies whether against Judges, counsel, witnesses, or parties, for words written or spoken
in the course of any proceedings, before any Court recognized by law, and this though the words written or spoken
were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against
the person defamed. 39 The ground of this rule is publicpolicy or in other words, public interest in administration of
justice. 40 It is applicable to all kinds of Courts of Justice; but the doctrine has been carried further; and it seems
that this immunity applies wherever there is an authorised inquiry which, though not before a Court of Justice, is
before a tribunal which has similar attributes, 41 e.g., military tribunal. 42 The cases show that, provided the
tribunal is one recognised by law there is no single element the presence or absence of which will be conclusive in
showing whether it has attributes sufficiently similar to those of a Court of law to create absolute privilege. 43 It is,
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however, not essential that the tribunal itself should have power finally to determine the issue before it, and
absolute privilege may apply if the inquiry by the tribunal is a step leading directly to, or is a major influence on the
final determination of that issue by the authority appointing the tribunal. 44 The enquiry held by a person appointed
by the Minister under the Education (Scotland) Act, 1946, for reporting to the Minister whether the dismissal of a
teacher by the education authority was reasonably justifiable, was held to be absolutely privileged. 45 Any step
which is essentially a step in a judicial or quasi- judicial proceeding would be immune from liability for defamation as
it gives rise to an occasion for absolute privilege. 46 The proceedings held before the Disciplinary Committee set
up under Solicitors Act, 1957, are judicial proceedings and absolute privilege attaches to the publication of the
findings and order of the Committee although the hearing was in private and only the findings and order were
pronounced in public. 47 But it does not apply to Courts discharging administrative duties only, e.g., Court of
Referee constituted under the Unemployment Insurance Act, 1920. 48 Communications made to such Courts are
not absolutely privileged. In cases like these the defendant has a right of qualified privilege and the onus is on him
to prove the privilege. 49 The doctrine of absolute privilege does not extend to an inquiry held by a superior officer
of a bank into the conduct of a Bank Manager of a branch of the bank. 50
The court has no common law power to order postponement or nonpublication of a report of open court
proceedings. 51
Complaints made to the Bar Council in England relating to conduct of a member of the Bar are entitled only to a
qualified privilege as that body has no judicial or quasi- judicial function. Absolute privilege would, however, attach
to disciplinary proceedings before the Benches of an Inn of Court whose disciplinary powers are derived from the
Judges and are subject to an appeal to the Judges. 52
All the documents necessary to the conduct of a case, such as pleadings, affidavits, and instructions to counsel are
also absolutely privileged. Documents given to the other party on discovery or as otherwise required by law in civil
and criminal proceedings, whether used or unused at the trial, are privileged. 53 But documents which do not have
any immediate link with possible judicial proceedings do not qualify for absolute privilege. 54
Judge : Whatever act is done by a Judge or Magistrate while acting judicially is absolutely protected unless he was
acting knowingly or recklessly outside his jurisdiction. 55
Coroner.— A Coroner holding an inquest is not liable to an action for words falsely and maliciously spoken by him
in his address to the jury. 56
Receiver.— The Official Receiver has a statutory duty to inquire in a judicial way into certain matters, and in
performing that duty he is acting in a judicial capacity. The report made by such an officer is absolutely privileged.
57
Juror.— Every observation of a juror is absolutely privileged if connected with the matter in issue, 58 so is any
presentment by a grand jury. 59
Advocate.— No action lies against an advocate for defamatory words spoken with reference to, and in the course
of, an inquiry before a judicial tribunal, although they are uttered by the advocate maliciously, and not with the
object of supporting the case of his client, and are uttered without any justification or even excuse and from
personal ill-will or anger towards the person defamed arising out of a previously existing cause, and are irrelevant to
every issue of fact which is contested before the tribunal. 60
The reason for the rule is that a counsel, who is not malicious and who is acting bona fide , may not be in danger of
having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be
unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel
shall never be troubled, although by making it so large counsel are included who have been guilty of malice and
misconduct. 61
Counsel.— Counsel's words are absolutely privileged, although he may have exceeded his instructions. 62
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The Madras High Court has laid down that an advocate cannot be proceeded against either civilly or criminally for
words uttered in his office as advocate. 63 He has, according to the Bombay High Court, fullest liberty of speech in
the course of a trial before a judicial tribunal so long as his language is justified by his instructions, or by the
evidence, or by the proceedings on the record. The mere fact that his words are defamatory, or that they are
calculated to hurt the feelings of another, or that they ultimately turn out to be absolutely devoid of all solid
foundation, would not make him responsible, nor render him liable in any civil or criminal proceedings. 64 The
Patna High Court has adopted the same view as the Madras and the Bombay High Courts. 65 The Allahabad High
Court has held likewise. 66 It has also held that if a pleader makes a defamatory remark during the examination of
a witness by the opponent's pleader which is entirely uncalled for and cannot be regarded as being either in
furtherance of the interests of his client or in the discharge of his professional duty towards his client, he will be
liable. 67
Solicitors. —Solicitors acting as advocates have the same privilege as counsel. 68
Party.— Defamatory statements by a party in open Court conducting his own cause are also absolutely privileged;
and no action will lie, no matter how false or malicious or irrelevant to the matter in issue the words complained of
may have been. 69 The privilege of parties is confined to what they do or say in the conduct of the case. 70
The Madras High Court has applied the rule of absolute immunity to an accused person in respect of questions put
by him in good faith for the purpose of defending himself. 71 The Calcutta High Court in a Full Bench case does not
expressly decide this point but lays down that there is a large preponderance of judicial opinion in favour of the view
that the principles of justice, equity and good conscience, applicable in such circumstances, should be identical with
the corresponding relevant rules of the common law of England; and that a small minority favours the view that the
principles of justice, equity and good conscience should be identical with the rules embodied in the Indian Penal
Code.72
The Lahore High Court has laid down that remark made by a party to a suit wholly irrelevant to the matter under
inquiry and uncalled for by any question of the Court is not privileged. 73
Witness and Investigators.— No action lies against a witness for what he says or writes in giving evidence before a
Court of Justice. 74 The rule is based on public policy which requires that witnesses should give their testimony
free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from
malice. The preliminary examination of a witness by a solicitor in preparing the proof for trial is within the same
privilege as that which he would have if he had said the same thing in his sworn testimony in Court. 75 But the
privilege does not extend to a wholly irrelevant answer given by a witness which is not provoked by any question.
76
The question of privilege in the context of investigation of crime was recently examined by the House of Lords in
Taylor v. Serious Fraud Office. 77 It was held that potential witnesses and those investigating a crime or assisting
in a criminal enquiry were protected by absolute immunity from suit as public interest required that all persons
involved in a criminal investigation should be able to communicate freely. The test was whether the statement or
conduct in respect of which immunity was sought could fairly be said to be part of the process of investigating a
crime or possible crime with a view to prosecution or possible prosecution. The immunity applies to documents
disclosed to defence as required by law. But statements which were wholly extraneous to investigation and
irrelevent and gratuitous libels were not protected. 78 Although, the immunity has been extended to proofs of
evidence and to prevent witnesses from being sued for conspiracy to give false evidence, the immunity did not
extend to fabrication of evidence, such as the forging of a suspect's signature to a confession, the writing down by a
police officer in his notebook of words which the suspect had not said or the planting of drugs on a suspect. 79
Thus, the immunity would apply to an officer who not claiming to have made a note, falsely stated in the witness
box that the suspect made a verbal confession; but the immunity would not apply to a police officer, who in order to
support the evidence he would give in court, fabricated a note containing an admission which the suspect had not
made. 80 These principles have been extended to an investigation by a financial regulator. 81
The Privy Council has decided that witnesses cannot be sued in a civil court for damages, in respect of evidence
given by them upon oath in judicial proceedings. The ground of this principle is “that it concerns the public and the
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administration of justice that witnesses giving their evidence on oath in a Court of Justice should not have before
their eyes the fear of being harassed by suits for damages; but that the only penalty which they should incur if they
give evidence falsely should be an indictment for perjury.” 82
Similarly, the Bombay High Court has held that no action lies against a witness in respect of words spoken by him
in the witness-box although they are false. 83 A criminal prosecution will lie for perjury if the evidence given is
intentionally false.
The Calcutta and the Allahabad High Courts and the former Chief Court of the Punjab laid down that statements
made by witnesses are protected only if they are relevant to the inquiry. 84 The Madras High Court has also held
that statements made by a witness are entitled not to an absolute but only to a qualified privilege. 85
The former Nagpur High Court had held that there is no absolute but only a qualified privilege in respect of the
statement a witness is compelled to make from the witness-box. The rule of English law has not been incorporated
in Indian statute law. 86
No action lies against a person for what he states in answer to questions put to him by a police-officer conducting
an investigation under the provisions of the Criminal Procedure Code.87 Statement given by a witness as a
preliminary to his examination in Court is equally privileged. 88
Affidavits, pleadings, etc. —No action lies against a man for a statement made by him in an affidavit in the course of
a judicial proceeding, even though it be alleged to have been made falsely and maliciously, and without any
reasonable or probable cause. 89 The same principle applies even though the person scandalized is not a party to
the cause. 90 But this privilege does not extend to affidavits containing scandalous matter. 91 The Court may
order scandalous matter in an affidavit to be expunged. 92
No action for libel lies for any statement in the pleadings. 93
Indian Law. —The Bombay, 94 the Madras, the Allahabad and the Patna High Courts have laid down that no
action for libel lies for any statement in pleadings. There is no difference between evidence given in the box and the
evidence on affidavit in that they are both asbolutely privileged. 95 Similarly, a defamatory statement in a complaint
to a Magistrate 1 or a petition to a Magistrate to take action under s. 107, Criminal Procedure Code,2 or a
complaint to a police-officer, 3 or a defamatory statement made in an information given to the police of a
cognizable offence 4 is absolutely privileged. A person presenting a petition to a criminal Court is not liable in a civil
suit for damages in respect of statements made therein which may be defamatory of the person complained
against. 5 Such statements are absolutely privileged. 6 The Rangoon High Court has held likewise. 7
The Calcutta High Court, however, is of opinion that a defamatory statement made in pleadings is not absolutely
privileged. 8 If a statement in an affidavit is wholly irrelevant to the inquiry to which the affidavit related, the person
making it would be liable for defamation. 9
Military and Naval Proceedings. —Proceedings of naval and military tribunals are absolutely privileged. Statements
made before a naval or military Court of Inquiry by a military man are protected. 10 Reports made in the course of
military or naval duty, such as adverse opinions expressed by one officer of the conduct of another, are absolutely
privileged, even if made maliciously and without reasonable or probable cause. 11
State Proceedings. —For reasons of public policy, absolute protection is given to every communication relating to
State matters made by one minister to another, or to the Crown. 12 It is not competent to a civil Court to inquire
whether or not he acted maliciously in making it. 13 A report by the High Commissioner of Australia in the United
Kingdom to the Prime Minister of Australia is absolutely privileged. 14 A communication may be absolutely
privileged as an act of State although it relates to commercial matters. 15
There is a difference of opinion whether an official publication, e.g., a Government Resolution, is absolutely
privileged or enjoys merely a qualified privilege. 16 According to the Madras High Court it is absolutely privileged.
17
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Communications relating to State matters are not confined to cases where the Secretaries of State or Under-
Secretaries of State are communicating with one another. State matters mean public matters, particularly matters
connected with the administration of justice, and a State Officer must include a police officer whose duty it is to
make enquiries and investigations into allegations of commission of criminal offences. Report made by a police
officer to a Magistrate under s. 202,Criminal Procedure Code, falls within the category of State matters and is
absolutely privileged.18
The court will refrain from enquiring the merits of an internal document of a foreign embassy particularly when the
law of nations as reflected in Article 24 of the Viena Convention on diplomatic relations required embassy
documents to be treated as inviolable and thus absolutely privileged. 19
The limits of privilege under this head are, however, a bit uncertain. No one would advocate that the absolute
privilege should extend to all communications between all officers of the State, but it is not possible to say that it
should be restricted to communications between ministers or officers at the top. As observed by WINFIELD: “Care
should be taken not to extend absolute privilege further than can be shown to be really necessary. It is no less in
the interest of the State that justice should be done to the citizen than that the machinery of Government should be
able to work without fear of legal action.” 20
6(iii)(c) Qualified Privilege
The law presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing
that the words were uttered on a privileged occasion. If a communication is privileged, the privilege will cover all
incidental publications which are made in normal course of business such as dictation to a typist. 21 Malice in law,
which is presumed in every false and defamatory statement, stands rebutted by a privileged occasion. In such a
case, in order to make a libel actionable, the burden of proving actual or express malice is always on the plaintiff.
Malice in that sense means making use of a privileged occasion for an indirect and improper motive. Such malice
can be proved in a variety of ways, inter alia (i) by showing that the writer did not honestly believe in the truth of the
allegations, or that he believed them to be false; (ii) or that the writer is moved by hatred or dislike, or a desire to
injure the subject of libel and is merely using the privileged occasion to defame; and (iii) by showing that out of
anger, prejudice or wrong motive, the writer casts aspersions, reckless whether they are true or false. 22 Lack of
honest belief is destructive of privilege and reckless publication of defamatory matter without considering or caring
whether it be true or not comes in the same category; but if the defendant honestly believed in the truth of his
allegations, the protection of privilege is not lost simply because he leaped to his conclusions on inadequate
material or because he believed in the truth of the allegations on account of gross and unreasoning prejudice,
although these factors along with other material may be used for holding that the dominant motive in publishing the
statement was personal spite or some other improper motive taking away the protection of privilege in spite of the
defendant's belief in the truth of the allegations. 23
The defendant has to prove that the occasion is privileged. If the defendant proves it, the burden of showing ‘actual
malice’ or ‘malice in fact’ is cast upon the plaintiff, but unless the defendant does so, the plaintiff is not called upon
to prove ‘actual malice’. 24 To prove malice, extrinsic evidence of malice is not necessary.
The words of the libel and the circumstances attending its publication may themselves afford evidence of malice. 25
The following are the cases of qualified privilege:

(i) When the circumstances are such that the defendant is under a duty of making a communication to a third
person who has a corresponding interest in receiving it; or where the defendant has an interest to protect
and the third person has a duty to protect that interest.
A communication, injurious to the character of another made bona fide from a sense of duty, legal, moral, or social,
and reasonably necessary for the due discharge of such duty, and made with a belief in its truth, is privileged. 26
There must in fact be an interest or duty in the person to whom the libel is published. It is not sufficient that the
maker of the statement honestly and reasonably believes that the person to whom it is made has such an interest
or duty; 27 the person must have an interest in the matter communicated. 28 A privileged occasion in the present
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context is “an occasion when the person who makes a communication has an interest or a duty legal, social or
moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest
or duty to receive it. This reciprocity is essential.” 29 The principle is that “either there must be interest in the
recipient and a duty to communicate in the speaker, or an interest to be protected in the speaker and a duty to
protect it in the recipient. 30 But the privilege is restricted to the communication that is relevant to the duty or
interest and does not extend to irrelevant matters. 31 But the test of irrelevant matter is not whether it is logically
relevant but whether in all the circumstances, it can be inferred that the defendant either did not believe it to be true,
or though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the
privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his
personal spite or for some other improper motive. 32 Such communications are protected for the common
convenience and welfare of society. 33 The public interest that the law should provide an effective means whereby
a man can vindicate his reputation against calumny has to be accommodated to the competing public interest in
permitting men to communicate frankly and freely with one another about matters with respect to which the law
recognises that they have a duty to perform or an interest to protect in doing so. 34 Therefore, what is published in
good faith in matter of these kinds is published on a privileged occasion and is not actionable even though it may be
defamatory and turn out to be untrue. 35 The principles relating to qualified privilege “are stated at a very high level
of abstraction and generality. The difficulty lies in applying the law to the circumstances of the particular case under
consideration. Concepts which are expressed as ‘public or private duty, whether legal or moral’ and ‘the common
convenience and welfare of society’ are evidently difficult of application. When it is recognised, as it must be that
the circumstances that constitute a privileged occasion can themselves never be categorised, it is clear that in order
to apply the principles a Court must make a close scrutiny of the circumstances of the case, of the situation of the
parties, of the relations of all concerned and of the events leading upto and sorrounding the publication”. 36 In this
case the respondent published a news letter known as the ‘Occupational Health and Safety Bulleton’. It dealt only
with matters relating to occupational health and safety matters and its subscribers were also only those who were
responsible for these matter. Because of this there existed a duty or interest between maker and recipient. In one of
its bulletons the respondent published an article discussing litigation involving a company controlled by the
appellant. The article erroneously reported that the appellant (as opposed to the company) had been found to have
contravened the Trade Practices Act, 1974. Having regard to all the circumstances of the case the respondent was
given the benefit of qualified privilege.
A letter written by the creditor of a junior officer to his commanding officer to secure payment of a debt is written on
a privileged occasion. 37 A public officer may send to his superior a report, pertinent to a matter which it is his duty
to investigate, even though the report contains defamatory statements regarding an individual. Such a report is
confidential and is privileged. 38 The mere fact that the superior officer never asked his opinion with regard to the
subject of the communication does not destroy the privilege. 39 Similarly, an order containing defamatory
statements regarding a person sent by a superior officer to his subordinate officer in the course of his official duty is
privileged. 40 The defendant in his capacity as a Union leader and as a member of the governing council of a
hosptial emphasising in a newspaper report inaction of the Government in not enquiring into charges of
misappropriation without naming the plaintiff was held entitled to qualified privilege. 41
Character is given to a servant for his benefit as well as for the benefit of the public. If the master wantonly and
capriciously volunteers to make a statement injurious to the servant, or makes such statement out of malice, the
statement is not privileged. 42 If bad character is deserved, the master is not liable. 43 If a person, thinking of
dealing with another in any matter of business, asks a question about his character from someone who has means
of knowledge, it is for the interests of society that the question should be answered; and if answered bona fide and
without malice, the answer is a privileged communication. 44 If a person or an association carrying on the business
of obtaining information regarding the character of other persons and selling such information for profit,
communicates information injurious to the plaintiff, he or it will be liable. 45 But the privilege may exist when the
association does not conduct its business purely for gain, its members are themselves interested in trade and
control is exercised over the person who procures the information. 46
Communications made in cases of confidential relationship .—A confidential relationship exists, for instance,
between husband and wife, father and son, 47 guardian and ward, 48 master and servant, 49 principal and agent,
solicitor and client, 50 partners or even intimate friends. 51 In these cases there exists between the parties such a
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confidential relation as to throw on the defendant the duty of protecting the interest of the person concerned. If a
lawyer bona fide acts in his professional capacity on the instructions of his client he will have the protection of
qualified privilege. 52 The privilege of solicitor and client has been generally dealt with as qualified privilege. 53 A
confidential communication between a solicitor and client comes under qualified privilege because the
communication is supposed to have been made in the protection of self-interest or by reason of common interest
existing between the party communicating and the party communicated to. But where a communication is made to
a solicitor in connection with a judicial proceeding, or in connection with a necessary step preliminary thereto, or
with reference to an act incidental to the proper initiation thereof, the communication is absolutely privileged. 54
Where the defendant has a duty or interest which entitles him to speak and the person or authority to whom he so
speaks is also under a corresponding duty or interest in that connection, the occasion is a privileged one, and
though the complaint made may be per se defamatory, it would be protected even if it be made falsely or
erroneously so long as it is not made out of malice or from improper motive. 55 The plaintiffs who were solicitors
practising in partnership brought an action against the defendant who was a member of Parliament claiming
damages for libel. The defendant had sent a letter to the Secretary of Law Society in which he set out complaints
made by one of his constituents concerning the conduct of the plaintiffs whom he had consulted professionally. The
defendant did not dispute that the letter was defamatory but successfully claimed that its publication to the Law
Society was protected by qualified privilege because the defendant who was member of Parliament had an interest
to receive from his constituent a complaint about the conduct of the solicitors acting in relation to their office in the
defendant's constituency and had a consequential interest or duty in passing the complaint to the Law Society
which had a corresponding duty or interest in receiving it. 56 So a circular in good faith and believing the
allegations to be correct issued by the Bar Council regarding the conduct of some barristers to all its constituents
was held to be protected by qualified privilege even though the Bar Council had not taken steps to verify the
correctness of the allegations. 57 But lack of reciprocity is destructive of this kind of privilege. For example,
although a wife may be interested in receiving information about the moral conduct of her husband it is not the duty
of even a friend to communicate to the wife all that he hears about the husband's conduct and if the information
communicated to the wife is defamatory and not true, the husband can sue the informer for defamation who cannot
plead the defence of qualified privilege for lack of reciprocity. 58 It is for the judge to decide whether in the
circumstances of the case, a moral or social duty to communicate existed and this be must do, as best as possible,
having regard to the people of ordinary intelligence and moral principle in general. 59
Even newspapers cannot claim protection of qualified privilege simply by showing that they gave information on a
matter of public interest; to claim the privilege it must further be shown that there was a duty in giving out that
information to the public. 60 For the purpose of this defence, the factors relating to the conduct and decisions of the
publisher or journalist are to be considered objectively in the light of the matters known to the defendant at the time
of publication and are not to be judged with the benefit of hindsight on matters not known to him at the time of
publication. 61 Further guidance, in the matter of qualified privilege of newspapers for deciding whether there had
been a duty to publish defamatory words to the world at large and whether to newspaper was justified in
maintaining web arehives, was given by the court of Appeal in Loutchansky v. Times Newspapers Ltd. , (No. 2) . 62
Volunteered information.— Where a person is so situated that it becomes right in the interest of society that he
should tell to a third person certain facts, then if he bona fide and without malice does tell them it is a privileged
communication, 63 e.g. , communication by the secretary of a charity organization society to a stranger as to the
deserts of an applicant to such stranger for charity, 64 or publication of the minutes of a Medical Council that a
certain practitioner is guilty of infamous conduct, 65 or communication by a member of a caste to a meeting of the
caste, 66 or communication of a resolution by a secretary 67 or headman 68 of a caste to members of the caste,
or by the secretary of one section of a caste to secretaries of other sections of the caste, 69 or publication of the
decision of the stewards of the Jockey Club in the Racing Calendar that a trainer was warned off a particular race
because a horse trained by him was doped, but not in any other newspaper. 70
Information as to crime or misconduct of others.— When it comes to the knowledge of any one that a crime has
been committed, a duty is laid on that person, as a citizen of the country, to state to the authorities what he knows
respecting the commission of the crime; and, if he states only what he knows and honestly believes he cannot be
subjected to an action for damages merely because it turns out that the person as to whom he has given the
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information is, after all, not guilty of the crime. 71 Under the Criminal Procedure Code (Act V of 1898) a duty is cast
on every person to give information of the commission of certain offences to the nearest Magistrate or police officer
(s. 44). A written communication to the Commissioner of Police, mentioning certain grievances which, if genuine,
the Commissioner would be a fit person to remedy but containing passages admittedly defamatory of the plaintiff, is
not absolutely privileged.72
(ii) Communications made in self-protection
A. Statements necessary to protect defendent's own interests. —A statement made by a person in the conduct of
his own affairs, in matters where his interest is concerned, is privileged. 73
Any one, in the transaction of business with another, has a right to use language bona fide , which is relevant to that
business, and which a due regard to his own interest makes necessary, even if it should directly or by its
consequences be injurious or painful to another. 74
The defendants in a prinpd monthly circular issued to their servants stated they had dismissed the plaintiff for gross
neglect of duty. It was held that the occasion was privileged, in the absence of malice or abuse of authority, as it
was clearly in the interest of the defendants that their servants should know that gross misconduct would be
followed by dismissal. 75 A, a shopkeeper, says to B, who manages his business: “Sell nothing to Z unless he pays
you ready money for I have no opinion of his honesty.” Here A is protected if he has made the information in good
faith for protection of his interest. 76
An apology published in mitigation of a libel against A which contains a defamatory statement about B and which
could have been avoided without affecting the quality of apology is not privileged against B even though it was not
entirely irrelevant but the solicitors joining in the publication would be protected even against B. 77
B. Statements provoked by plaintiff. —A man has a right to defend his character against false aspersions. If the
defendant makes any statement bona fide in answer to the attack made on him by the plaintiff and for the sole
purpose of defending himself from such an attack, then the occasion is privileged. 78 But the statement must not
be irrelevant. 79
The privilege may be lost if the extent of publication is excessive, e.g., in a matter of purely local or private
importance, it is not necessary to write to the Times or to advertise. In such a case, the extent of publication given
to the announcement is evidence of malice. 80 But where the plaintiff has previously attacked the defendant in
newspapers 81 or in public, and the latter retaliates by publishing in the papers in self-defence a statement of the
case from his point of view, and in so doing makes a defamatory statement concerning the plaintiff, such statement
is privileged, if made bona fide . 82
Statements invited by plaintiff. —A letter written by the defendant as an answer to a letter sent by the plaintiff with
an intention of obtaining such answer is not actionable even if it contains defamatory statements. 83
(iii) Protection of common interest
Every communication made bona fide , upon any subject-matter in which the party communicating has an interest,
is privileged if made to a person having a corresponding interest, 84 or to a person honestly believing to have a
duty to protect that interest. 85 But the privilege will be lost if the statement is made to an unnecessarily large
number of persons and thus spread broadcast. 86
A communication made bona fide to a lady by her son-in-law, 87 or by her brother, 88 as to the character of her
intended husband: a letter written by a solicitor on behalf of his client to a third person, 89 a letter written by the
husband to the relations of his divorced wife explaining his conduct, 90 are privileged communications made in the
protection of common interest.
One B, the foreign manager of a company which carried on business abroad, wrote to the defendant, who was a
director of the company in England, a letter containing gross charges of immorality, drunkenness and dishonesty on
the part of the plaintiff who was the managing director of the company abroad. Without obtaining any corroboration
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of the allegations in B's letter and without communicating with the plaintiff, the defendant showed B's letter to the
chairman of the board of directors, and then to the plaintiff's wife who was an old friend of his. The allegations in B's
letter were unfounded, but the defendant believed them to be true. It was held that the publication to the chairman
was made upon a privileged occasion as there was community of interest as to the affairs of thecompany, but that
the publication to the plaintiff's wife was not so for there was neither a community of interest with her nor was a duty
to communicate to her. 91
(iv) Communications made to persons in public position
Such communications must be for public good. Information given for the purpose of redressing grievances, or
securing public morals is privileged, for instance, a complaint to the Home Secretary about a Magistrate, 92 or to
the Postmaster-General about a postmaster, 93 or to a Bishop about a clergyman, 94 or to a member of
Parliament by a constituent to bring to the notice of a Minister improper conduct of a public official. 95 The person
to whom the information is given must be competent to deal with the subject-matter, 96 otherwise there can be no
privilege. 97
(v) Fair Reports
Fair reports of (1) judicial proceedings; (2) Parliamentary proceedings; (3) quasi- judicial and other similar
proceedings; and (4) proceedings of public meetings, are treated as privileged communications.
By virtue of the Defamation Act, 1952, the publication in a newspaper of any report or matter as is mentioned in the
Schedule to that Act shall be privileged unless the publication is proved to be made with malice. Further, nothing in
the section is to be construed as protecting the publication of any matter which is not of public concern and the
publication of which is not for the public benefit. 1
Judicial proceedings.— A fair, substantial, bona fide , impartial, and correct report of proceedings in any Court of
Justice open to the public 2 is privileged, except where the matters given in evidence are (1) of a grossly
scandalous, blasphemous, seditious or immoral tendency, 3 or (2) expressly prohibited by an order of the Court, 4
or (3) by statute, 5 for it is no advantage to the public, or public justice, that such matters should be detailed.
Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it
is of vast importance to the public that the proceedings of a Court of Justice should be universally known. The
general advantage to the country in having these proceedings made public more than counterbalances the
inconvenience to private persons whose conduct may be the subject of such proceedings. 6 The privilege relating
to newspaper reports of judicial proceedings extends to the statements contained in counsel's speeches and there
is no rule of law that a newspaper, before publishing the report of proceedings, is bound to verify whether the
statements made in the Court by a counsel, solicitor or a witness are accurate. 7
The report should be confined to what takes place in the Court and the two things, report and comment, should be
kept separate. 8 The reporter ought not to mix up with the report comments of his own. If any comments are made
they should not be made as a part of the report. It is not necessary that the report should be verbatim; it must be
substantially a fair account of what took place. It is sufficient to publish a fair abstract. 9 The report must not be
one-sided, or highly coloured. 10 Damages may be recovered for a grossly exaggerated and libellous title.
Reports of ex parte proceedings are also privileged. 11 A fair and accurate report of the judgment in an action,
published bona fide and without malice, is privileged, although not accompanied by any report of the evidence given
at the trial. 12 A fair and accurate contemporaneous report of judicial proceedings before a foreign tribunal
published by an English newspaper without malice is privileged if it relates to a matter of legitimate and proper
interest to the English public. 13
The privilege given by the common law to report of proceedings before a Court of Justice open to the public does
not extend to a proceeding before a domestic tribunal, such as the stewards of the Jockey club, at which the public
are not entitled to be present. 14
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During the hearing of a libel action counsel for the plaintiff criticized the behaviour of a person D. The plaintiff, who
was the only witness in the case, in his evidence also commented adversely upon D's behaviour. Thereupon D said
to the Judge: ‘May I make an application?..... I want to contradict the many lies that have been told in this Court’.
That intervention was reported in five newspapers and the plaintiff brought actions for libel against them alleging
that the reports were defamatory of him. It was held that the application which D made to the Court was made in the
course of judicial proceedings and that as the report was fair and accurate it was protected. 15
Parliamentary Proceedings. —A fair and accurate report of any proceedings or debate in either House of
Parliament, or in any committee thereof, is privileged; even though it contains matter defamatory of an individual. 16
Such publication is privileged on the principle that the advantage of publicity to the community at large outweighs
any private injury resulting from the publication. 17 The privilege will apply to a “Parliamentary Sketch” i.e., a
summary of proceedings published by a reporter. 18
If the subject of a debate is of public interest, legitimate criticism could be fully made in a newspaper. 19
In India under the Parliamentary Proceedings (Protection and Publication) Act, 1956 20 a person is not liable to
any civil or criminal proceedings in respect of the publication in a newspaper 21 of a substantially true report of any
proceedings of either House of Parliament unless the publication is proved to have been made with malice. The
protection is not applicable if the publication is not for the public good. 22 This Act also applies to Parliamentary
proceedings broadcast by wireless telegraphy.
Quasi-judicial and other proceedings. —Publication of true, accurate and bona fide proceedings of quasi- judicial
bodies is privileged. 23 Speeches made at the meetings of local or any other boards are privileged. The privilege is
not lost even if outsiders are present. 24 But the publication of such speeches in newspapers will not be privileged
if they contain matters not of public interest. 25
Proceedings of public meetings and press conference .—A report in a newspaper of the proceedings of a public
meeting is privileged, provided it is (1) fair, (2) accurate, (3) not blasphemous, and (4) not indecent. The privilege
may be rebutted by showing (1) that the report was published maliciously; or (2) that the defendant has refused or
neglected on request to insert in the same newspaper a reasonable letter by way of contradiction or explanation of
such report. If the meeting be not necessarily or properly a public one, there is no privilege. A press conference has
been held to be a public meeting and a report referring to contents of a press release distributed but not read aloud
has been held to be protected by the qualified privilege. 26
This privilege is statutory and is given by the Law of Libel Amendment Act; 27 at common law there was no such
privilege.
By virtue of the Defamation Act, 1952, a defamatory statement published by or on behalf of a candidate in any
election to a local government authority or to Parliament shall not be deemed to be published on a privileged
occasion on the ground that it is material to a question in issue in the election, whether or not the person by whom it
is published is qualified to vote at the election. 28
6(iv) Consent
It is a defence that the plaintiff has expressly or impliedly consented to the publication complained of where, for
example, in a case of slander the aggrieved party had invited the defendant to repeat the words complained of
before witnesses. 29
6(v) Apology
The defence is provided by the Libel Act, 1843, 30 and the Defamation Act, 1952. 31
Where there is an apology and an acceptance thereof the defendant can resist the plaintiff's suit for damages for
defamation. The publication of a contradiction and expression of regret by itself is not tantamount to an apology. 32
6(vi) Amends
Page 31 of 72
By the Defamation Act, 1996 one more defence of ‘Amends’ has been added in the English Law. 33 A party
without serving a defence in defamation proceeding, may offer to make amends. An offer to make amends is an
offer (a) to make a suitable carrection of the statement complained of and a sufficient apology to the aggreived
party, (b) to publish the correction and the apology in a manner that is reasonable and practicable in the
circumstances, and (c) to pay to the aggrieved party such compensation (if any), and such costs, as may be agreed
or determined to be payable. The party accepting the offer may not bring or contiune defamation proceedings and
may insist on enforcing the offer and to that end may take the steps as prescribed in the Act.
7. REMEDIES FOR DEFAMATION
As to the remedies for defamation a suit for damages may be brought. The publication of defamatory statements
may be restrained by injunction either under s. 38 or 39 of the Specific Relief Act, 1963.34
In a suit for damages for defamation the law requires that the plaint ought to allege the publication of defamatory
statement, set out the actual words used and also state that they were published or spoken to some named
individuals and specify the time and place when and where they were published. 35 The requirement of pleading
an innuendo has already been discussed. 36
Who can sue. —The publication of defamation can seldom give a right of action to any one but the person defamed.
37 The fact that a defamatory statement has caused damage to other persons does not entitle them to sue. 38
Such damage is considered to be too remote. 39 Thus a brother cannot sue for slander of his sister, 40 nor a
father for defaming his daughter, 41 nor the heir and nearest relation of a deceased person for defamatory words
spoken of the deceased. 42
According to the Madras High Court a husband cannot, therefore, maintain a suit for defamatory words imputing
unchastity to his wife. Otherwise the slanderer might be liable to as many actions as there are near relations of the
person defamed. 43 But the Calcutta High Court permits the husband to sue where unchastity is imputed to his
wife. 44
Damages for libel and slander.— Damages recoverable in an action for defamation will depend upon the nature and
character of the libel, the extent of its circulation, 45 the position in life of the parties, 46 and the surrounding
circumstances of the case. 47
The Madras High Court has held that the fact that there has been a criminal prosecution for defamation and a
conviction obtained before a civil suit for damages therefor is filed, is not by itself a reason for reducing the amount
of damages to be awarded in the suit. The law grants both remedies to the wronged person and a party who avails
himself of one remedy after another is entitled to get as much compensation as he would otherwise get. 48 The
Calcutta High Court is of opinion that a Civil Court is not bound to give damages for defamation after the defendant
has been convicted and fined for the offence in the Criminal Court where the plaintiff has suffered no actual
damage. 49
A party complaining about a tort like libel can only ask compensation for the injury sustained. It cannot include any
part of the costs. Costs are decreed in accordance with the rules of the Court. 50
According to J G STARKE'S comments on current topics in June 1990 of Australian Law Journal “in the last five
years and more especially in the last 12 months defamation verdicts and settlements have soared to unusual
heights in Australia, the United Kingdom and the United States;” and that “this new incidence of Astronomical
awards in defamation cases has operated as a deterrent on freedom of speech, to the extent of even gagging the
freedom of reviewers of books, and of film, drama and art critics to make just and fair evaluations”. 51 Awareness
created by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms that the
right to freedom of expression would be infringed by an excessive award has led the Court of Appeal in England to
Page 32 of 72
observe that “the common law if properly understood requires the courts to subject large awards of damages to a
more searching scrutiny than has been customary in the past.” 52
More recently the Court of Appeal 53 has laid down the principles on which compensatory and exemplary damages
should be allowed in an action on libel. As regards compensatory damages the principles are: “The successful
plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will
compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation;
vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication
has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of
the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, loyalty and the
core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a
libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A
successful plaintiff may properly look to an award of damages to vindicate his reputation; but the significance of this
is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology
than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret
that the libellous publication took place. It is well established that compensatory damages may and should
compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when
he persists in an unfounded assertion that the publication was true, or refuses, or crossexamines the plaintiff in a
wounding or insulting way. Although the plaintiff has been referred to as ‘he’, all this of course applies to women just
as much as men. 54 Further, awards in broadly comparable cases can be seen for assessing the damages. In
addition the awards of exemplary damages can be allowed when the award of compensatory damages is not itself
thought sufficient to punish the defendant and to deter the defendant in cases when the Court is satisfied that the
publisher had no genuine belief in the truth of what he published, but suspected that the words were untrue and
deliberately refrained from taking obvious steps which, if taken, would have turned suspicion into certainty. 55
Aggravation of damages.— The violence of the defendant's language, the nature of the imputation conveyed, and
the fact that the defamation was deliberate and malicious will enhance the damages.
Court will consider the fact that the attack was entirely unprovoked, and that the defendant was culpably reckless or
grossly negligent in the matter. The defendant's subsequent conduct may aggravate the damages, 56 e.g., if he has
refused to listen to any explanation, or to retract the charge he made, 57 or has only tardily published an
inadequate apology. Plea of justification if persisted it will tend to aggravate damages. 58
Mitigation of damages.— It is permissible to a defendant to seek to mitigate damages by proving any of the
following circumstances:— (1) Evidence falling short of justification, 59 (2) absence of malice, 60 (3) apology at the
earliest opportunity, 61 (4) retaliation by defendant, plaintiff being in the habit of libelling the defendant, 62 (5)
provocation by plaintiff 63 and (6) bad reputation of plaintiff. 64
Injunction.— The Court has jurisdiction to interfere on an interlocutory application to restrain the publication of a
libel. But this jurisdiction will not in general be exercised unless the applicant satisfies the Court that the statements
in the document complained of are untrue. 65 Further, there should be some likelihood of immediate and pressing
injury to person or property of the plaintiff 66 or to his trade. 67 According to the High Court of Australia, for grant
of an interlocutory injunction it must be held that there is a serious question to be decided, that damages will not be
an adequate remedy for injury suffered and that balance of convenience lies for grant of injunction. 68 But an
injunction may be granted to prevent publication of a libel when it is being published by a combination of persons
with the sole purpose of harming the plaintiff for in such a case the publication will be unlawful (even if the libel is
true) as it will constitute the tort of conspiracy. 69 It has also been held that the Specific Relief Act, 1877 (now
replaced by Act 47 of 1963) enables the court to grant an injunction to restrain publication of a libel which would be
an offence under the Penal Code even though it may not be injurious to plaintiff's person or property.70 So a
newspaper may be restrained from publishing a libel when the intention is to blackmail the plaintiff. 71
Joint action.— An action for slander cannot be brought jointly against several defendants; separate actions should
be brought against each. Each person sued for verbal slander is responsible only for what he himself has uttered,
and the plaintiff is not entitled to bring him before the Court while he is proving his case against another defendant
Page 33 of 72
for what the first defendant is not himself responsible. But an action for slander may be brought jointly against
several defendants where the words spoken are not actionable per se , but only become so by reason of the special
damage, which is the result of the conjoint action of all the defendants. 72
In libel, each person is liable for the entire publication, and therefore all may be properly sued together. 73 It has
been held by the Court of Appeal in England that where the defence of qualified privilege may lie in an action for
libel, there is no rule of law that the malice of the master or principal is to be imputed to the servant or agent, so as
to render him liable for innocent publication of the defamatory matter. In such a case in a joint publication the malice
of one of the defendants cannot be imputed to another. 74 If several persons are libelled by the publication of a
statement all of them cannot bring joint action against the defendant but must sue him separately. 75
1
Blackstones Commentary of the Laws of England, Vol. 1 (IV edition), p. 101; Corpus Juris Secundum, Vol.
77, p. 268; D.F. Marin V. Davis, 55 American Law Reports, p. 171; Smt. Kiran Bedi & Jinder Singh v.
Committee of Inquiry , AIR 1989 SC 714, pp. 725, 726.
2
Dixon v. Holden, (1869) LR 7 Eq 488.

3
De Crespigny v. Weslleley , (1829) 5 Bing 392.

4
SEERVAI, Constitutional Law of India, 3rd edition, Vol. 1, p. 495; S.N.M. Abdi v. Prafulla K. Mahanta , AIR
2002 Gau 75 [LNIND 2001 GAU 277], p. 76.
5
WEIR, case book on Tort, 5th edition, p. 435.
6
Noor Mohd. v. Mohd. Jiauddin , AIR 1992 MP 244 [LNIND 1990 MP 222], p. 249 (para 15).
7
The Queen v. Holbrook, (1878) 4 QBD 42, 46.

8
S. 499, Penal Code.
9
Thorley v. Earl of Kerry , (1809) 3 Camp. 214 n.

10
See title 4(i ), p. 299, post for detailed discussion.

11
Simmons v. Mitchell, (1880) 6 AC 156 : 43 LT 710 (PC).

12
Bloodworth v. Gray , 7 Man & G 334.

13
S. 1, C. 51, Slander of Women Act, 1891 (UK).
Page 34 of 72
14
52, Defamation Act, 1952 (UK).
15
WEIR, case book on Tort 5th ed., p. 435.
16
See title 4 (ii), p. 302, post .

17
Clement v. Chivis , (1829) 9 B & C 172.

18
See RATANLAL AND DHIRAJLAL, Law of Crimes, 23rd Edn., s. 499, Comment.
19
Belt v. Lawes , (1882) 51 LJ QB 359.

20
Ogilvie v. The Punjab Akhbarat & Press Co ., (1929) ILR 11 Lah 45; Lt. Col. Gidney v. The A.I. & D.E.
Federation , (1930) ILR 8 Ran 250; Narayanan v. Narayana , AIR 1961 Mad 254 [LNIND 1960 MAD 137];
Clarke v. Malyneux, (1877) 3 QBD 237, 247, followed in Ratan v. Bhaga, (1896) PJ 376. See Dhurmo Dass
v. Kaylash , (1869) 12 WR 372.
21
For unintentional defamation see title 3(iii) f, p. 293, Post .

22
For fair comment, see title 6(ii), p. 290, Post .

23
See title 6 (iii) c, p. 320, Post .

24
Du Bost v. Beresford , (1810) 2 Camp 511; Carr v. Hood , (1808) 1 Camp 355 n.
25
Yousoupoff v. Metro-Goldwyn-Mayer Pictures Limited, (1934) 50 TLR 581, 587 : 78 SJ 617.

26
WINFIELD & JOLOWICZ think it is slander; Tort, 12th edn., p. 296. In SALMOND & HEUSTON on Torts, it
is submitted that it is libel; 18th edn., p. 131. See further POLLOCK, Torts, 15th Edn., p. 176n.
27
15 & 16 Geo. 6 & 1 Eliz 2, c. 66, secs. 1, 16.
28
Sim v. Stretch , (1936) 2 All ER 1237, (1240) : (1936) 52 TLR 669 : 80 SJ 703 (HL) (LORD ATKIN).
29
Ramakant v. Devilal , 1969 MPLJ 805 (G.P. SINGH, J.).

30
Page 35 of 72
Hayward v. Thompson , (1981) 3 All ER 450 (458) (CA). See further Telnikoff v. Matusevitch , (1991) 4 All
ER 817 : (1992) 2 AC 343 : (1991) 3 WLR 952 (HL) (Letter published in response to an article should be
considered without reference to the article as many readers may not have read the article).
31
Channel Seven Adelade Pty Ltd. v. Manock, (2007) 82 ALJR 303 p. 314 para 37.
32
Lewis v. Daily Telegraph Ltd ., (1963) 2 All ER 151 (HL) (154) : 10 SJ 356. (LORD REID); Ramakant v.
Devilal, supra; Keays v. Murdoch (U.K.) Ltd., (1991) 1 WLR 1184 (C.A.), p. 1192.
33
Lewis v. Daily Telegraph Ltd., supra , p. 169 (LORD DEVLIN).

34
Charleston v. News Group Newspapers Ltd ., (1995) 2 All ER 313 : (1995) 2 AC 65 (HL).
35
Ibid , pp. 316, 317.

36
Ibid , p. 317.
37
Wakley v. Cooke , (1849) 4 Ex 511.

38
Wakley v. Healey, (1849) 7 CB 591.

39
Vaidianatha Sastriar v. Somasundar Thambiran, (1912) 24 MLJ 8.

40
Brij Nath Sarin v. F.M. Byrne , (1912) 9 ALJR 253.

41
Berkoff v. Burchill, (1996) 4 All ER 1008 : (1997) EMLR 139 (CA).

42
Youssoupoff v. Metro-Goldwyn-Mayer Pictures Limited, (1934) 50 TLR 581 : 78 SJ 617.

43
Bell v. Stone , (1798) 1 B & P 331.

44
Clement v. Chivis , (1829) 9 B & C 172.

45
Eaton v. Johns , (1842) 1 Dowl NS 602.

46
Page 36 of 72
Cheese v. Scales , (1842) 10 M & W 488.

47
McBride v. Ellis , 9 Rich 313.

48
Boydell v. Jones , (1838) 4 M & W 446; Hick's Case, (1618) Poph 139.
49
Tolley v. J.S. Fry & Sons Ltd., (1931) AC 333 : 145 LT 1 : 47 TLR 351.
50
Monson v. Tussauds, (1894) 1 QB 671.

51
Ramakant v. Devilal , 1969 MPLJ 805 : 70 LT 355.

52
Pitumber Dass v. Dwarka Prashad , (1870) 2 NWP 435. Burning a man's effigy is a libel: Eyre v. Garlick,
(1878) 42 1 P 68.
53
Shoobhagee Koeri v. Bokhori Ram, (1906) 4 CLJ 393. It was further held that the husband had no cause of
action against A.
54
Sant v. Bhag Mal , (1882) PR No 140 of 1882.

55
Gorantla Venkateshwarlv v. B. Demudu , AIR 2003 AP 251 [LNIND 2002 AP 846]: (2003) 2 ALD 649.
56
Mitha Rustomji Murzhan Nusserwamji Engineer , (1941) 43 Bom LR 631.

57
Cooppoosami Chetty v. Duraisami Chetty , (1909) ILR 33 Mad 67; Ravunni Menon v. Neelakandan
Nambudri , (1934) MW No. 345. But a person is not liable for defamation when the words used do not
amount to saying that the plaintiff has lost caste or has done acts which necessarily involve the losing of
caste but simply amount to an expression of unwillingness on the part of the defendant to associate with
the plaintiff or to utilize his services by reason of his sympathy with widow marriage shown by dining with
remarried widows or associating with persons who have dined with them; Venkayya v. Venkataramiah,
(1914) 28 MLJ 58.
58
Aspro Travel Ltd. v. Owners Abroad Group plc ., (1995) 4 All ER 728 (CA) p. 733 : (1996) 1 WLR 132.
59
Krishnappa v. S. Akhanda Nanda , (1938) 42 CWN 1045.

60
Irwin v. Reid , (1920) ILR 48 Cal 304.

Page 37 of 72
61
(1963) 2 All ER 151 : (1964) AC 234 : (1963) 2 All ER 1063 (HL).

62
Morris v. Sandess Universal Products , (1954) 1 All ER 47.

63
Capital and Counties Bank Ltd. v. Henty and Sons, (1882) 7 AC 741 : 52 LTQB 232; Lewis v. Daily
Telegraph Ltd ., (1963) 2 All ER 151 : (1964) AC 234 : (1963) 2 All ER 1063 (HL).
64
Ibid.
65
Sadashiba v. Bansidhar , AIR 1962 Ori 115 [LNIND 1961 ORI 41]. See also Habib Bhai v. Pyarelal , AIR
1964 MP 62 [LNIND 1963 MP 94]: (1943) KB 80 : 167 LT 376 : (1942) 2 All ER 555.
66
Le Fanu v. Malcolmson, (1848) 1 HLC 637, 668; Knupffer v. London Express Newspapers Ltd ., (1944) AC
116. If the defamatory statements relate to the members of the executive Board of a cooperative society
and not to the society, the society cannot sue for defamation : Ritnand Balved Education Foundation v. Alok
Kumar, AIR 2007 Del 9 [LNIND 2006 DEL 823]: (2006) 131 DLT 563 [LNIND 2006 DEL 823] : (2006) 9
DRJ 714.
67
E. Haulton & Co. v. Jones, (1910) AC 20, 23 : 101 LT 831 : 26 TLR 128; Ogilvie v. The Punjab Akhbarat
and Press Company , (1929) ILR 11 Lah 45.
68
Jones v. E. Houlton & Co ., (1909) 2 KB 444, 455; Newstead v. London Express Newspapers Ltd ., (1939)
2 KB 317, (1940) 1 KB 377 : 167 LT 17; W.A. Providence v. P.T. Christensen, (1914) 7 BLT 155; Union
Benefit Guarantee Company v. Thakorlal Thakor , (1935) 37 Bom LR 1033; Baba Gurdit Singh v.
“Statesman” Ltd ., (1935) ILR 62 Cal 838.
69
Cassidy v. Daily Mirror Newspapers, (1929) 2 KB 331, 354 : 45 TLR 485 : 98 LJ KB 595. For statutory
Reform in this respect see title 3(iii)f, p. 293, post.
70
Bourke v. Warren , (1826) 2 C & P 307 (309); Nevill v. Fine Art & G.I. Co ., (1897) AC 68, 73; Hough v.
London Express Newspapers Ltd ., (1940) 2 KB 507 : (1940) 3 All ER 31. Whether any or what portion of
an alleged libel applies to the plaintiff is a question of fact : Naganatha v. Subramania, (1917) 21 MLJ 324.
To come to a conclusion as to whether certain words referred to a particular individual or not, the view of
the ordinary responsible reader of the article in question should be given effect to : Oglivie v. The Punjab
Akhbarat and Press Co ., (1929) ILR 11 Lah 45; Lachhmi Narain v. Shambhu Nath , (1930) 29 ALJR 16.
71
(1910) AC 20 (HL).
72
Page 38 of 72
Ibid .
73
(1971) 1 WLR 1239 (HL).

74
(1940) 1 KB 377 : (1939) 4 All ER 319 : 167 LT 17 : 83 SJ 942.

75
Hayward v. Thompson , (1981) 3 All ER 450 : (1982) QB 47 (CA) distinguishing Grappelli v. Derek Block
(Holdings) Ltd ., (1981) 2 All ER 272 : (1981) 1 WLR 822 : 125 SJ 169 (CA).
76
E. Houlton & Co. v. Jones, (1910) AC 20 (HL); Morgan v. Odhams Press Ltd ., (1971) 1 WLR 1239 : (1971)
2 All ER 1156 (HL).
77
Jacobs v. Achmaltz, (1890) 62 LT 121. When a plaintiff complains of words in their natural and ordinary
meaning he must accept that meaning and all its derogatory imputations and he cannot select some of the
imputations and reject others: per LORD DENNING, M.R. in Slim v. Daily Telegraph Ltd ., (1968) 1 All ER
497 : (1968) 1 QB 157 : (1968) 2 WLR 599.
78
ODGERS, 6th Edn, p. 99; Cooppoosami Chetty v. Duraisami Chetty , (1909) ILR 33 Mad 67; General Lord
Strickland v. Carmelo Misfud Bonnici , (1934) 41 LW 665, (PC); Hough v. London Express Newspapers Ltd
., (1940) 2 KB 507 : 109 LJQB 524 : (1940) 3 All ER 31.
79
Grubb v. Bristol United Press Limited , (1962) 2 All ER 380 : (1963) 1 QB 309, approved in Lewis v. Daily
Telegraph Limited , (1963) 2 All ER 151 (HL).
80
Morgan v. Odhams Press Ltd ., (1971) 2 All ER 1156 (HL); (1971) 1 WLR 1239 (HL).
81
Fullam v. Newcastle Chronicle and Journal Ltd ., (1977) 3 All ER 32 (CA) p. 35 : (1977) 1 WLR 651 (LORD
DENNING M.R.).
82
Ibid.
83
Ibid.
84
Ibid.
85
Ibid.
86
Page 39 of 72
Tushar Kanti Ghose v. Bina Bhowmick , (1952) 57 CWN 378.

87
Astaire v. Compling , (1965) 3 All ER 666 : (1966) 1 WLR 34 : 109 SJ 854.

88
(1971) 1 WLR 1239 : (1971) 2 All ER 1156 (HL).

89
See text and note 76, p. 285, ante .

90
(1929) 2 KB 231 : 141 LT 404 : 45 TLR 845

91
(1931) AC 333 : 100 LJKB 328 : 145 LT 1 (HL).

1
FLEMING, Torts, (6th edition) p. 501 Citing Broom v. Richie , (1904) F 942.
2
Indian Penal Code, s. 499,Expln. 1.

3
PER WILLES, J., in Eastwood v. Holmes , (1858) 1 F & F 347, 349; Government Advocate, B & O v.
Gopabandhu Das , (1922) ILR 1 Pat 414; Baba Gurdit Singh v. Statesman Ltd ., (1935) ILR 62 Cal 838;
Advocate Co. Ltd. v. Arthur Leslie Abraham , AIR 1946 PC 13.
4
Roach v. Garvan , (1742) 1 Ve Sen 157 : 2 Atk 469.

5
Bourke v. Warren , (1826) 2 C & P 307.

6
R. v. Clerk , (1728) 1 Barn, 304; Munshi Ram v. Mela Ram Wafa , (1935) ILR 17 Lah 332.
7
Levi v. Milne , (1827) 4 Bing 195.

8
Knupffer v. London Express Newspapers Ltd ., (1944) AC 116.

9
Ibid.
10
P.K.O.H. Mills v. Tilak Chand , AIR 1969 Punj 150 .

11
Page 40 of 72
Union Benefit Guarantee Company v. Thakorlal Thakor, (1935) 37 Bom LR 1033; D. & L. Caterers Ltd. v.
D'Ajou, (1945) KB 364.
12
Jameel v. Wall Street Journal, (2006) 4 All ER 1279 (H.L.).

13
City of Chicago v. Tribune Co ., (1923) 307 Ill 595 p. 607 (Thompson C.J. of Supreme Court of Illinois);
Derby Shire County Council v. Times Newspapers Ltd ., (1993) 1 All ER 1011 (HL) p. 228.
14
Hector v. A.G. of Antiqua and Barbuda , (1990) 2 All ER 103 (PC) p. 106 (LORD BRIDGE).
15
Derby Shire County Council v. Times Newspapers Ltd ., (1993) 1 All ER 1011 (HL) p. 1018 (LORD KEITH).
16
New York Times v. Sullivan , (1964) 376 US 254.

17
Derby Shire County Counsil v. Times Newspapers Ltd., Supra.

18
Die Spoorbond v. South African Railways , (1946) AD 999 (Supreme Court of South Africa).
19
Raj Gopal v. State of Tamil Nadu , (1994) 6 JT 514 p. 530: AIR 1995 SC 264 p. 277 : (1994) 6 SCC 632.
20
Goldsmith v. Bhoyrul, (1997) 4 All ER 268 (QBD).

21
New York Times v. Sullivan , (1964) 376 US 254.

22
Raj Gopal v. State of Tamil Nadu , supra p. 530 (JT): 277 (AIR).
23
Ibid.
24
Ibid.
25
Langer v. Australian Broadcasting Corporation, (1997) 71 ALJR 818, p. 833.

26
Ibid., pp. 834, 835.

27
Page 41 of 72
Reynolds v. Times Newspaper Ltd., (1999) 4 All ER 609, pp. 625, 626 : (2001) 2 AC 127 : (1999) 3 WLR
1010 (HL), see further, KEVIL WILLIAMS, ‘Defaming Politicians : The not so common Law’ (2000) 63
Modern Law Review 748. For qualified privilege generally, see p. 320.
28
(1999) 4 All ER 609.
29
Ibid , p. 626.
30
(2006) 4 All ER 1279 (H.L.).
31
Ibid .
32
(2008) 1 All ER 965 (H.L.).
33
Ibid ., para 10.

34
Ibid ., para 11.

35
Ibid ., para 12.

36
Supra note 17C.

37
Curtis Publishing Co. v. Butts , 388 US 130 (1967).

38
Raj Gopal v. State of Tamil Nadu , JT 1994 (6) SC 514 p. 526: AIR 1995 SC 264 p. 274.
39
(1910) AC 20. See text and notes 71, 72, pp. 284, 285, ante .
40
(1929) 2 KB 331 : 114 LT 404 : 45 TLR 485. See text and note 69, p. 284, ante .
41
(1940) 1 KB 377 : (1939) 4 All ER 319 : 162 LT 17. See text and note 74, p. 285, ante .
42
Ibid .
43
Gertz v. Wesj, (1914) 418 US 323 ; Rest 2d 558, 580 A and B.

44
Page 42 of 72
FLEMING, Torts, 6th edition, p. 511.

45
T.V. Rama Subba Iyer v. Am. Ahmad Mohideen , AIR 1972 Mad 398 [LNIND 1971 MAD 248]. See further
Dainik Bhaskar v. Madhusudan Bhaskar , AIR 1991 MP 162 [LNIND 1990 MP 216], p. 168.
46
PER ESHER, M.R. in Pullman v. Hill & Co ., (1891) 1 QB 524, (525) : 39 WR 263 : 64 LT 691; Komul
Chander v. Nobin Chunder , (1868) 10 WR 184; Mohamed Ismail Khan v. Mohamed Tahir Alias Motee
Mean , (1873) 6 NWP 38 ; Rawlins v. Anant Lal, (1920) 2 PLT 176; Kunwar Radha Krishen v. H.S. Bates ,
(1951) ALJ 268. Publication does not require communication to more persons than one: Govindan Nair v.
Achutha Menon , (1915) ILR 39 Mad 433. Sending of a defamatory article to the editor and printer of a
newspaper constitutes publication. The appearance of the article in the paper is a second publication and
constitutes a separate cause of action : Makhanlal v. Panchamlal , (1934) 31 NLR 27.
47
Barrow v. Lewellin , (1615) Hob. 62: Pullman v. Hill & Co ., (1891) 1 QB 524 : 39 WR 263 : 64 LT 691;
White v. J and F. Stone (Lighting and Radio), Ltd ., (1939) 2 KB 827 : 83 SJ 603 : 55 TLR 949.
48
Whitfield v. S.E. Ry ., (1858) EB&E 115; Williamson v. Freer , (1874) LR 9 CP 393.

49
Robinson v. Jones , (1879) LR 4 Ir 391. See Sadgrove v. Hole, (1901) 2 KB 1 : 49 WR 473 : 17 TLR 332.
50
Dalacroix v. Thevenot , (1817) 2 Stark 63 ; Gamersall v. Davies, (1898) 14 TLR 430. See Keogh v. Dental
Hospital of Ireland, (1910) 2 IR 577.
51
Theaker v. Richardson, (1962) 1 WLR 151.

52
Huth v. Huth, (1915) 3 KB 32 : 31 TLR 350.

53
Berezovsky v. Michales, (2000) 2 All ER 986 p. 993 : (2000) 1 WLR 1004 (HL).
54
Wenman v. Ash, (1853) 13 CB 836; Jones v. Williams, (1885) 1 TLR 572; Shoobhagee Koeri v. Bakhari
Ram, (1906) 4 CLJ 390.
55
Wennhak v. Morgan, (1888) 20 QBD 635 : 59 LT 28.

56
M.C. Verghese v. T.J. Poonan , AIR 1970 SC 1876.

57
Blake v. Stevens , (1864) 4 F&F 232; Shepheard v. Whitaker , (1875) LR 10 CP 502.

Page 43 of 72
58
Donoghue v. Hayes , (1831) Haye's Ir. Ex Rep 265.

59
Vizetelly v. Mudies Select Library Ltd., (1900) 2 QB 170.

60
Emmens v. Pottle, (1885) 16 QBD 354 : 55 LJQB 51 : 34 WR 116. See further title 3(v) text and notes 81
to 84, p. 298, post .
61
Bunt v. Tilley, (2006) 3 All ER 396.

62
Edmondson v. Birch & Co. Ltd., & Horner, (1907) 1 KB 371; Boxsius v. Goblet Freres, (1894) 1 QB 842 : 34
TLR 485; Roff v. British and French Chemical Manufacturing Co ., (1918) 2 KB 677 : 34 TLR 485. If a
statement is false to the knowledge of the defendant then there is an end of privilege, and publication of
such statement to his clerk will not be protected : Vaidianatha Sastriar v. Somasundara Thambiran, (1913)
24 MLJ 8 [LNIND 1912 MAD 401].
63
Osborn v. Thomas Boulter & Son, (1930) 2 KB 226 : 143 LT 460, not following Pullman v. Hill & Co . (1891)
1 QB 524, as being a decision on facts, and following Edmondson v. Birch & Co . (1907) KB 371; See
futher Brayanston Finance Ltd. v. de Vries , (1975) 2 All ER 609 (CA) p. 630 (LAWSON L. J.), pp. 622, 623
(LORD DIPLOCK).
64
Boxsius v. Goblet Freres, (1894) 1 QB 842 : 34 TLR 485.

65
Cook v. Ward , (1830) 6 Bing 409.

66
Hebditch v. Mac Ilwaine, (1894) 2 QB 54 : 42 WR 422 : 70 LT 626. Thompson v. Dashwood, (1883) 11

QBD 43 in which the defendants wrote defamatory statements of the plaintiff in a letter to W under
circumstances which made the publication of the letter to W privileged but by mistake the letter was placed
in an envelope directed to another person who read the letter and the defendant was held not liable on the
ground of absence of malice in fact, was disapproved.
67
Mahender Ram v. Harnandan Prasad , AIR 1958 Pat 445 .

68
Mitha Rustomji Murzban v. Nusserwanji Engineer, (1941) 43 Bom LR 631.

69
London Artists Ltd. v. Littler, (1968) 1 WLR 607, 615.

70
Page 44 of 72
Khair-ud-Din v. Tara Singh , (1926) ILR 7 Lah 491; See The Englishman, Ltd. v. The Hon'ble Antonio
Arrivabene , (1930) 35 CWN 271 : 52 CLJ 345, where the plaintiff's complaint about an interview was
published along with the editor's note as to the reliability of the reporter who took the interview; K. P.
Narayanan v. Mahendrasingh , ILR (1956) Nag 439.
71
Rustom K. Karanjia v. Thackersey , (1969) 72 Bom LR 94. See further Dainik Bhaskar v. Madhusudan
Bhaskar , AIR 1991 MP 162 [LNIND 1990 MP 216], p. 166 (The Court must analyse the alleged
defamatory news and views with due care, caution and circumspection and eschew hyper-sensitivity in
doing so for the role of press as crusador against social evil is progressively acquiring greater importance
and newer dimensions with the niche found by investigative journalism).
72
(1999) 4 All ER 609. For discussion of this case see p. 291 supra .
73
Grobbelaar v. News Group Newspapers Ltd., (2001) 2 All ER 437 (CA).

74
Nishi Prem v. Javed Akhtar , AIR 1988 Bombay 222 [LNIND 1987 BOM 402].
75
Mc Guinnes v. Attorney General of Victoria , (1940) 63 CLR 73; British Steel Corporation v. Granda
Television Ltd ., (1981) 1 All ER 417 : (1980) 3 WLR 774 : 124 SJ 812 (HL).
76
Ibid.
77
Secretary of State for Defence v. Guardian News Papers Ltd ., (1984) 3 All ER 601 (1985) AC 339 : (1984)
3 WLR 986 (HL); Max Well v. President Ltd ., (1987) 1 All ER 656 (CA).
78
Re an Enquiry under the Company Securities (Inside Dealing) Act, (1988) 1 All ER 203 (HL), p. 205.
79
X Ltd. v. Morgan Grampian (Publishers) Ltd ., (1990) 2 All ER 1 (HL), p. 9. : (1991) 1 AC 1. See further ,
Ashworth Hospital Authority v. MGN Ltd., (2001) 1 All ER 991, p. 1012 (CA) affirmed (2002) 4 All ER 193,
pp. 203, 204 (HL).
80
Dina Nath v. Sayad Habib , (1929) ILR 10 Lah 816; Tushar Kanti Ghose v. Bina Bhowmik , ILR (1955) 2
Cal 161 ; K.P. Narayanan v. Mahendrasingh , ILR (1956) Nag 439.
81
Emmens v. Pottle, (1885) 16 QBD 354 : 34 WR 116.

82
PER ROMER, L. J., in Vizetelly v. Mudie's Select Library, Ltd ., (1900) 2 QB 170, 180. Bottamley
v.Woolworth & Co ., (1932) 48 TLR 521 : 146 LT 68 : 48 TLR 39; Sun Life Assurance Co. of Canada v. W.
H. Smith & Sons Ltd ., (1934) 150 LT 211.
Page 45 of 72
83
(1977) 2 All ER 566 : (1997) 1 WLR 478 (CA).

84
Ibid , pp. 572, 573.

85
Grech v. Odhams Press, (1958) 1 QB 310 : (1958) WLR 16 : (1958) 2 All ER 462.
1
Osborn v. Thomas Boulter & Son, (1930) 2 KB 226 : 143 LT 460, SCRUTTON and SLESSER, L.JJ. (contra
GREER, LJ)
2
Lynch v. Knight, (1861) 9 HLC 577, 600; Speake v. Hughes, (1904) 1 KB 138 : 89 LT 576.
3
Storey v. Challandas , (1837) 8 C & P 234; Riding v. Smith , (1876) 1 Ex. D 91.
4
Payee v. Beuwmorris , (1669) 1 Lev 248.

5
Sterry v. Foreman , (1827) 2 C & P 592.

6
Martin v. Strong , (1836) 5 A & E 535.

7
Corcoran v. Corcoran , (1857) 7 Ir CLR 272.

8
Moore v. Meagher , (1807) 1 Taunt 39; Davies v. Solomon , (1871) LR 7 QB 112.

9
Lynch v. Knight, (1861) 9 HLC 577, 589.

10
Allsop v. Allsop , (1860) 5 H & N 534.

11
Ibid .
12
Rawlings v. Norbury , (1858) 1 F & F 341.

13
Savile v. Jardine , (1795) 2 HB 1, 531.

14
Page 46 of 72
Savage v. Robery, (1699) 2 Salk 694 ; Hopwood v. Thorn , (1849) 8 C & B 293 : 79 RR 503.
15
Barnett v. Allen , (1858) 3 H & N 376.

16
Ashley v. Harrison , (1793) 1 Esp 47 ; Chamerlain v. Boyd, (1883) 11 QBD 407.

17
Webb v. Beavan, (1883) 11 QBD 609.

18
Jones v. Jones, (1916) 2 AC 481; Hopwood v. Muirson, (1945) 1 KB 313.

19
Slander of Women Act, (1891) 54 & 55 Vic., c. 51.
20
Marks v. Samuel, (1904) 2 KB 287, 290.

21
Webb v. Bevan, (1883) 11 QBD 609; Lemon v. Simmons, (1888) 57 LJQB 260.
22
Button v. Heyward , (1722) 8 Mod 24.

23
Rowcliffe v. Edmonds , (1840) 7 M & W 12; Lawrence v. Woodward , (1625-41) Cro Car 277.
24
Bridges v. Playdel , (1676) Br & G 2; Roberts v. Camden , (1807) 9 East 93.

25
Ratan v. Bhaga, (1896) PJ 376 ; Jogeshwar Sarma v. Dinaram Sarma, (1898) 3 CLJ 140.
26
To call a man a thief would prima facie be actionable without allegation of special damage; but if the words
were used as abuse it would not be: Cristie v. Cowell , (1790) 1 Peake NPC 4.
27
The “Englishman” Limited v. Lala Lajpat Rai, (1910) 14 CWN 713.

28
Hellwig v. Mitchell, (1910) 1 KB 609, 614.

29
Ogden v. Turner , (1705) 6 Mod 104.

30
Simmons v. Mitchell , (1880) 6 App Cas 156 : 43 LT 710; Mitha Rustomji Murzban v. Nusserwanji Engineer
, (1941) 43 Bom LR 631.
Page 47 of 72
31
Gray v. Jones , (1939) 1 All ER 798 : 55 TLR 437.

32
Villers v. Monsley , (1769) 2 Wils 403.

33
Taylor v. Hall , (1742) 2 Str .1189; Bloodworth v. Gray , (1844) 7 M & G 334; Carslake v. Mapledoram ,
(1788) 2 TR 473.
34
Bellamy. v. Burch , (1847) 16 M & W 590.

35
Mitha Rustomji Murzban v. Nusserwanji Engineer , (1941) 43 Bom LR 631.

36
Doyley v. Roberts , (1837) 3 Bing NC 835.

37
Lumby v. Allday , (1831) 1 Cr & J 301. In this case the plaintiff was a clerk of a gas company, and the
defendant spoke of him, “you are a fellow, a disgrace to the town, unfit to hold your situation, for your
conduct with whores.” It was held that the words were not actionable.
38
Jones v. Jones, (1916) 2 AC 481 : 115 LT 432.

39
D. & L. Caterers, Ltd. v. D’ Anjou , (1945) 1 All ER 563 : (1945) 1 KB 364.

40
De Stempel v. Dunkels , (1938) 1 All ER 238 : (1938) Ch 352.

41
Angel v. H.H. Bushell & Co. Ltd ., (1967) 1 All ER 1018 : (1968) QB 813 : (1967) 2 976.
42
Sukhraji Bikaji v. Kundammal Packraj, (1948) 2 MLJ 270 [LNIND 1948 MAD 127] : (1948) MWN 629 : 61
LW 589.
43
54 & 55 Vic., c. 51.
44
Mst. Ramdhara v. Mst. Phulwatibai , 1969 MPLJ 483.

45
Murlidas v. Sricharan Mahapatra , ILR (1949) 1 Cut 645 .

46
Page 48 of 72
Girish Chunder Mitter v. Jatadhari Sadhukhan , (1899) 26 Cal 653, F.B., where the words used were “sala”,
“haramazada”, “soor” and “baperbeta”. Bhooni Money Dossee v. Natobar Biswas , ILR (1901) 28 Cal 452 ;
Girwar Singh v. Siraman Singh , (1905) ILR 32 Cal 1060; Maung Kyaw v. Tha Dun U , (1907) 4 LBR 50 ;
Girdhari Lal v. Punjab Singh, (1933) 34 PLR 1071.
In Suraj Narain v. Sita Ram , (1939) ALJR 394, it has been held that insulting words which are likely to
expose a person to ridicule and humiliation are actionable.
47
(1884) ILR 8 Mad 175, 180; Konee Subhadra v. Subbarayadu, (1900) 10 MLJ 83; Leslie Rogers v. Hajee
Fakir Muhammad Sait, (1918) 35 MLJ 673 [LNIND 1918 MAD 142] ; Subbaraidu v. Sreenivasa Charyulu,
(1926) 52 MLJ 87.
48
Dawan Singh v. Mahip Singh , (1888) ILR 10 All 425, where the words conveyed the meaning that the
plaintiff's descent was illegitimate; Harakh Chand v. Ganga Prasad Rai, (1924) ILR 47 All 391, where the
words complained of were “bahinchod”, “sala” and “harami” (bastard); Sagar Ram v. Babu Ram, (1904) 1
ALJR 102, where the words complained of were that the plaintiff drank wine, committed adultery and had
no religion; Subbaraidu v. Sreenivasa Charyulu, (1926) 52 MLJ 87, where the defendant called the plaintiff,
who was a rival candidate at an election, a drunkard in public. See further Mst. Ramdhara v. Mst.
Phulwatibai , 1969 MPLJ 483.
49
Kashiram Krishna v. Bhadu Bapuji, (1870) 7 BHC (ACJ) 17. In Burma this case is followed. But see Mi Nu
v. Mi Nwe , (1898) 5 Burma LR 33; Ma Pan Ye v. Maung Pan Aung , (1905) 2 UBR Tort (1904-06) 1.
50
H.C.D'Silva v. E.M. Potenger , ILR (1946) 1 Cal 157 .

51
Rahim Bakhsh v. Bachcha Lal , (1928) ILR 51 All 509.

52
Sri Raja Sitarama v. Sri Raja Sanyasi , (1866) 3 MHC 4.

53
South Indian Ry. Co. v. Ramakrishna , (1889) ILR 13 Mad 34.

54
54 & 55 Vic., c. 51.
55
Kerr v. Kennedy, (1942) 1 KB 409 : (1942) 1 All ER 412.

56
Bhoomi Money Dossee v. Natobar Biswas , (1901) 28 Cal 452.

57
Sukan Teli v. Bipal Teli, (1905) 4 CLJ 388. In this case it was held that the words imputing unchastity to a
person's wife constituted defamation not only of the wife but also of the husband himself, and he was
therefore entitled to maintain an action on his own account. The former Chief Court of Upper Burma was of
opinion that special damage was not essential where there was a false charge of unchastity : Nga Nyo v. Mi
Page 49 of 72
Te , (1915) UBR (1914-16) 98; Ma Win v. Ma Ngon , (1922) 1 Burma LJ 148. See Changaram v. Raya ,
(1913) 7 LBR 86.
58
Narayana Sah v. Kannamma Bai , (1931) ILR 55 Mad 727.

59
Hirabai v. Dinshaw , (1926) 28 Bom LR 391, 1334, ILR 51 Bom 167.

60
Gaya Din Singh v. Mahabir Singh , ILR (1926) 1 Luck 386 .

61
Vallabha v. Madusudanan , (1889) ILR 12 Mad 495.

62
Kaikhusru Naoroji Kabraji v. Jehangir Byarmji Muzban , (1890) 14 Bom 532; Watkin v. Hall , (1868) LR 3
QB 396; Waithman v. Weaver , (1882) 11 Price 257. See, Mi Ngwe Hmon v. Mi Pwa Sa, (1913) 7 BLT 253;
A newspaper publishing defamatory statements made in a pending action comes within the repetition rule
and cannot claim privilege and is liable for damages: Stern v. Piper , (1996) 3 All ER 385 (CA).
Unauthorised publication breaks the chain of causation but if it is the natural and probable consequence of
the original publication the original publisher is also liable for the subsequent publication; Slipper v. British
Broadcasting Corp ., (1991) 1 All ER 165 (CA).
63
Ward v. Weeks , (1830) 7 Bing 211.

64
Speight v. Gosnay, (1891) 60 LJQB 231; Derry v. Handley, (1867) 16 LTNS 263.
65
MC Manus v. Beckham , (2002) 4 All ER 497, p. 514 (CA).

66
Parkins v. Scott , (1862) 1 H & C 153 : 6 LT 394 : 10 WR 562.

67
Raghunath Damodhar v. Janardhan Gopal , (1891) ILR 15 Bom 599; Reynolds v. Times Newspapers,
(1999) 4 All ER 609, p. 614 (HL).
68
M. Pherson v. Daniels , (1829) 10 BC 263 (272).

69
Weaver v. Lloyd , (1824) 4 D & R 230; Khair-ud-Din v. Tara Singh , (1926) ILR 7 Lah 49.
70
Truth (N.Z.) Ltd. v. Holloway, (1960) 1 WLR 997 : 104 SJ 745.

71
Page 50 of 72
PER LORD DENMAN in Cooper v. Lawson , (1838) 8 AD & E 746, 753; Dainik Bhaskar v. Madhusudan
Bhaskar , AIR 1991 MP 162 [LNIND 1990 MP 216], p. 168.
72
Alexander v. N.E. Ry ., (1865) 11 Jur NS 619.

73
Clarkson v. Lawson , (1829) 6 Bing 266.

74
Leyman v. Latimer , (1877) 3 Ex D 15, on appeal, (1878) ib 352.

75
Watkin v. Hall , (1868) LR 3 QB 396.

76
Helsham v. Blackwood, (1851) 11 CB 111.

77
Lucas Box v. News Group Newspapers Ltd ., (1986) 1 All ER 177 : (1986) 1 WLR 147 (CA); Morrel v.
International Publishing Ltd ., (1989) 3 All ER 733 (CA).
78
Prager v. Time Newspapers Ltd. , (1988) 1 All ER 300 : (1987) 132 SJ 55 (CA).
79
See, RATANLAL DHIRAJLAL, The section 499, exception 1). Altaf Hossein v. Tasuddook Hossein , (1867)
2 Agra HC 87.
80
Merivale v. Carson, (1887) 20 QBD 275 : 58 LT 331; Broadway Approvals Ltd. v. Odhams Press Ltd .,
(1965) 2 All ER 523; Ahsanali v. Kazi Syed Hifazat Ali , ILR (1956) Nag 378; Dainik Bhaskar v.
Madhusudan Bhaskar , AIR 1991 MP 162 [LNIND 1990 MP 216], pp. 166, 167.
81
Ibid .
82
London Artists Ltd. v. Littler, (1969) 2 QB 375, p. 391 : (1969) 2 WLR 409 : (1969) 2 All ER 193.
83
Watson v. Walter , (1868) LR 4 QB 73; Davis v. Shepstone , (1886) 11 App Cas 187, 190.
84
Lewis v. Levy , (1858) EB & E 537; Reg. v. O'Dogherty , (1848) 5 Cox 348; Woodgate v. Ridout, (1865) 4 F
& F 202, 223.
85
Purcell v. Sowler, (1877) 2 CPD 215; Cox v. Feeney , (1863) 4 F & F 13.
86
Page 51 of 72
Kelly v. Tinling , (1865) LR 1 QB 699.

87
Strauss v. Francis , (1866) 4 F & F 1107; Eraser v. Berkley , (1836) 7 C & P 621.
88
Thompson v. Shackell , (1828) Mood & Malk 187.

89
Gregory v. Duke of Brunswick , (1843) 1 C & K 21.

90
Green v. Chapman , (1837) 4 Bing NC 92; Dibbin v. Swan and Bostork , (1793) 1 Esp 28.
91
Morrison v. Harmer , (1837) 3 Bing NC 759.

92
Odger v. Mortimer, (1873) 28 LT 472; O'Donoghue v. Hussey, (1871) Ir R 5 CL 124; Davis v. Duncan ,
(1874) LR 9 CP 396.
93
London Artists Ltd. v. Littler , (1968) 1 All ER 1075 : (1969) 1 WR 607. An appeal against this case was
dismissed on the ground that the plea of fair comment had failed: (1969) 2 All ER 193 : (1969) 2 QB 375.
94
McQuire v. Western Morning News Co ., (1903) 2 KB 100, 110. See, The Madras Times Ltd. v. Rogers,
(1915) 30 MLJ 294.
95
Proof of malice may take a criticism that is prima facie fair outside the limits of fair comment: Thomas v.
Bradbury Agnew & Co. Ltd ., (1906) 2 KB 627 : 75 LT 23 : 22 TLR 656. Whether a libel was justified or
exceeded the bounds of fair comment is a question of fact: Naganatha v. Subramania, (1917) 21 MLT 324.
96
Merivale v. Carson, (1887) 20 QBD 275, which overruled the case of Henwood v. Harrison , (1872) LR 7
CP 606 and followed Cambhell v. Spottiswoode , (1863) 3 B & S 769 : 32 LJ QB 185. See, South Hetton
Coal Co. v. N.E. News Assn ., (1894) 1 QB 133 (143).
97
Thomas v. Bradbury, Agnew & Co. Ltd ., (1906) 2 KB 627 : 75 LT 23 : 22 TLR 656.
98
Digby v. Financial News, (1907) 1 KB 502, (507); Peter Walker & Sons Ltd. v. Hodgson, (1909) 1 KB 239,
256. See, Irwin v. Reid , (1920) ILR 48 Cal 304; Subhas Chandra Bose v. R. Knight & Sons , (1928) ILR 55
Cal 1121; Raghunath Singh Parmar v. Makundi Lal , (1936) ALJR 1014. Truth and Sportsman Ltd. v.
George Stanley Thompson , AIR 1933 PC 36.
1
Silken v. Beaverbrook Newspapers , (1958) 2 All ER 516 : (1958) 1 WLR 743 : 102 SJ 491; Reynolds v.
Times Newspapers, (1999) 4 All ER 609, p. 615.
Page 52 of 72
Telnikoff v. Matusevitch , (1991) 4 All ER 817 : (1992) 2 AC 343 (HL); Reynolds v. Times Newspapers,
supra.
3
Ibid.
4
Channel Seven Adelaide Pty. Ltd. v. Manock (2007) 82 ALJR 303, p. 313 para 35.
5
Ibid .
6
Ibid .
7
ODGERS’ on Libel and Slander, (6th edition), p. 166 cited in Kemsley v. Foot, (1952) AC 345 : (1952) 1
TLR 532 (1952) 1 All ER 501 (HL).
8
Hunt v. Star Newspaper Co. Ltd ., (1908) 2 KB 320 : (1908-10) All ER 513; London Artists Ltd. v. Littler,
(1969) 2 QB 375, p. 395 : (1969) 2 WLR 409. Truth and Sportsman Ltd. v. George Stanley Thompson , AIR
1933 PC 36.
9
Parmiter v. Coupland , (1840) 6 M & W 105 (108); E.I. Howard v. Mull , (1866) 1 BHC (Appx) 85, 91; Lala
Lajpat Rai v. The “Englishman” Ltd. , (1909) 13 CWN 895, (1910) 14 CWN 713; Tushar Kanti Ghose v.
Bina Bhowmick , (1952) 57 CWN 378.
10
PER LORD ELLENBOROUGH in Tabart v. Tipper , (1808) 1 Camp 350 (351, 352, 356).
11
Surajmal v. Horniman , (1917) 20 Bom LR 185; Union Benefit Guarantee Company v. Thakorlal Thakor ,
(1935) 37 Bom LR 1033.
12
Mangena v. Wright, (1909) 2 KB 958.

13
Campbell v. Spottiswoode , (1863) 3 B & S 769 : 32 LJ QB 185, 196, 199; Joynt v. Cycle Trading
Publishing Co ., (1904) 2 KB 292; Hunt v. Star Newspaper Co. Ltd ., (1908) 2 KB 309, 320 : 98 LT 629 :
(1908-10) All ER 513.
14
Stuart v. Lovell , (1817) 2 Stark 93, 96; Carr v. Hood , (1808) 1 Camp 355n; Gathercole v. Miall , (1846) 15
M & W 319. Writers in public papers must be careful as to the language they use while commenting on the
proceedings of Courts of Justice and on matters of public interest: they should be careful that they do not
wantonly assail the character of others or impute criminality to them; Barrow v. Hem Chunder Lahiri , (1908)
Page 53 of 72
ILR 35 Cal 495; The Englishman Ltd. v. Lala Lajpat Rai , (1910) 14 CWN 713; Subhas Chandra Bose v. R.
Knight & Sons , (1928) ILR 55 Cal 1121.
15
Subhas Chandra Bose v. R. Knight & Sons, sup; Mitha Rustomji Murzban v. Nusserwanji Engineer , (1941)
43 Bom LR 631; Cohen v. Daily Telegraph Ltd ., (1968) 2 All ER 407 : (1968) 1 WLR 916. See further ,
Sewakram Sobhani v. R.K. Karanjia, Chief Editor, Weekly Blitz, (1981) 3 SCC 208 [LNIND 1981 SC 265],
(217).
16
Sutherland v. Stopes, (1925) AC 47 : 132 LT 550 : 41 TLR 106. The defendant is entitled to give particulars
of the facts upon which he based his comments, although those facts are defamatory of the plaintiff and
there is no plea of justification: Burton v. Board, (1929) 1 KB 301. The defendant raising a general plea of
fair comment is not required to particularise which words complained of are facts and which are comments,
but he must give particulars of the basic facts supporting the plea; Lord v. Sunday Telegraph Ltd. , (1970) 3
All ER 504.
17
Control Risks Ltd. v. New English Library Ltd ., (1989) 3 All ER 577 : (1990) 1 WLR 183 (CA).
18
Lyon v. The Daily Telegraph Ltd., (1943) 1 KB 746.

19
Kemsley v. Foot, (1952) AC 345 : (1952) 1 TLR 532 : (1952) 1 All ER 501.
20
Folkard.
21
M.G. Perera v. Andrew Vincent Peiris , AIR 1949 PC 106.

22
Mann v. O'Neill, (1997) 71 ALJR 903, p. 907 (High Court of Australia); Taylor v. Serious Fraud Office,
(1998) 4 All ER 801 (HL); Darker v. Chief Constable of the West Midlands Police, (2000) 4 All ER 193, p.
216 (HL). See further text and note 20, p. 320 .
23
Adam v. Ward, (1917) AC 309 : 117 LT 34 : 33 TLR 277; Maroti Sadashiv v. Godabai , (1958) 61 Bom LR
143.
24
PER DOWSE, B., in Lynam v. Gowing , (1880) LR 6 Ir 259, 269; Keshavlal v. Bai Girja , (1899) 1 Bom LR
478 : ILR 24 Bom 13; Ma Mya Shwe v. Maung Maung , ILR (1924) 2 Rang 333.
25
Clarke v. Molyneux, (1877) 3 QBD 237 : 47 LJ QB 230 : 42 JP 277; Jenoure v. Delmege, (1891) AC 73;
Keshavlal v. Bai Girja , (1899) 1 Bom LR 478 : ILR 24 Bom 13; Mati Lal Raha v. Indra Nath Bannerjee , ILR
(1909) 36 Cal 907 ; Vaidianatha Sastriar v. Somasundara Thambiran, (1912) 24 MLJ 8; Baba Gurdit Singh
v. “Statesman” Ltd. , (1935) ILR 62 Cal 838.
26
Page 54 of 72
Ex Parte Wason , (1869) LR 4 QB 573 (576); Dillion v. Balfour , (1887) 20 Ir LR 600 ; Lala Lajpat Rai v. The
Englishman Ltd. , (1909) 13 CWN 895. See further, Dingle v. Associated Newspapers Ltd ., (1960) 2 QB
405; Re Parliamentary Privilege Act, 1770, (1958) AC 331 (PC); Chenard & Co. v. Joachim Arissol, (1949)
AC 127 (PC).
27
The King v. Lord Abingdon , (1794) 1 Esp 226.

28
Buchanan v. Jennings , (2005) 2 All ER 273 (PC). In case of this nature what he said in the House can be
proved as a historical fact to explain what he said outside the House.
29
Davison v. Duncan , (1857) 7 E & B 229.

30
Lake v. King , (1780) 1 Saund, 131b.

31
Goffin v. Donnelly, (1881) 6 QBD 307.

32
Prebble v. Television New Zealand Ltd ., (1994) 3 All ER 407 : (1995) 1 AC 321 : (1994) 3 WLR 970 (PC).
33
3 & 4 Vic., c. 9.
34
Stockdale v. Hansard , (1837) 2 Mood & Rob 9.

35
(2000) 2 All ER 224 (HL).
36
Tejkiran Jain v. Sanjiva Reddy , AIR 1970 SC 1573 : (1970) 2 SCC 272 [LNIND 1970 SC 274].
37
Suresh Chandra v. Punit Goola , (1951) 55 CWN 745.

38
C.K. Daphtary v. O.P. Gupta , AIR 1971 SC 1132 : (1971) 1 SCC 625 : 1971 Crlj 844; Dr. Jagdish Chandra
Ghosh v. Hari Sadan , AIR 1961 SC 613 : 1961 Crlj 743 : (1961) 3 SCR 486 [LNIND 1961 SC 19].
39
Royal Aquarium, etc. v. Parkinson, (1892) 1 QB 431, 451 : 61 LJQB 409: 40 WR 450; Taylor v. Serious
Fraud Office, (1998) 4 All ER 801, pp. 807, 808 (HL).
40
Taylor v. Serious Fraud Office, supra.

41
Page 55 of 72
Royal Aquarium, etc. v. Parkinson, (1892) 1 QB 431, 442, 451 : 61 LJQB 409: 40 WR 450, followed in
Barratt v. Keorns, (1905) 1 KB 504; Trapp v. Mackie , (1979) 1 All ER 489 : (1979) 1 WLR 377 (HL); e.g., a
statement made before an officer exercising jurisdiction under the Madras Estates Land Act is absolutely
privileged: Duraiswami Thevan v. Lakshmanan Chettiar , (1932) 38 Mad LW 240.
42
Copartnership Farms v. Harvey Smith, (1918) 2 KB 405.

43
Trapp v. Mackie , (1979) 1 All ER 489 : (1979) 1 WLR 377 (HL).

44
Ibid .
45
Ibid . See further, Hasselblad (G.B.) Ltd. v. Orbinson , (1985) 1 All ER 173 : (1985) QB 475 (CA); the
proceedings of the Commission of the European Communities constituted under the E.E.C. Treaty do not
attract absolute privilege as the procedure followed by the Commission is not like judicial procedure but
administrative in nature.
46
T. Gopalankutty v. M. Sankunni , AIR 1971 Kerala 180, (FB).

47
Addis v. Crocker, (1961) 1 QB 11 : (1960) 2 All ER 629.

48
Collins v. Henry Whiteway & Co ., (1927) 2 KB 378. See, O'Connor v. Waldron, (1935) AC 76, where the
Commissioner performed certain administrative functions under a statute similar to a Court. A Mahalkari
holding an inquiry into an alleged misconduct of a police patel is not acting in a judicial capacity and the
statements made to him are not absolutely privileged : Gangappagouda v. Bassayya , (1942) 45 Bom LR
215; ILR (1943) Bom 178. This case is followed in Maroti Sadashiv v. Godabai , (1958) 61 Bom LR 143;
AIR 1959 Bom 443 [LNIND 1958 BOM 74]; ILR (1959) Bom 405 [LNIND 1958 BOM 74], where it is held
that only a qualified privilege attaches to defamatory statement made before police officers in the course of
a regular investigation under the Criminal Procedure Code, 1898. In Smith v. National Meter Co. Ltd .,
(1945) 1 KB 143 similar view is taken of proceedings before a medical referee.
49
Bhairo Mahto v. Rajkishore Singh, (1936) 17 PLT 816.

50
Purshottam Lal v. Prem Shanker , AIR 1966 All 377 [LNIND 1965 ALL 66].
51
Independent Publishing Co. Ltd. v. Attorney General of Trinidad and Tobago , (2005) 1 All ER 499 (PC).
52
Lincon v. Daniels , (1961) 3 All ER 740 : (1962) QB 237; Marrinan v. Vibrat , (1962) 3 All ER 380 : (1963) 1
QB 528.
53
Page 56 of 72
Taylor v. Serious Fraud Office, (1998) 4 All ER 801 (HL).

54
Waple v. Surrey County Council, (1998) 1 All ER 624 (CA).

55
See , Chapter V, title (2) Judicial Acts.

56
Thomas v. Churton , (1962) 2 B & S 475; Yates v. Lansing , (1772) 5 Johns 283.
57
Bottomley v. Brougham, (1908) 1 KB 584 : 24 TLR 262.

58
The King v. Skinner , (1772) Lofft, 55.

59
Little v. Pomeroy , (1873) Ir R CL 50.

60
Munster v. Lamb, (1883) 11 QBD 588 : 49 LT 592.

61
PER BRETT, M.R., in Munster v. Lamb, (1883) 11 QBD 588, 604.

62
The Queen v. Kierman , (1855) 5 Ir CLR 171.

63
Sullivan v. Norton , (1886) ILR 10 Mad 28, (FB). See, Shiva Kumari Debi v. Becharam Lahiri , (1921) 25
CWN 835.
64
Bhaishankar v. L.M. Wadia , (1899) 2 Bom LR 3 (FB).

65
Maharaj Kumar Jagat Mohon Nath Sah Deo v. Kalipada Ghosh , (1922) ILR 1 Pat 371.
66
Sheodatt Sharma v. Ram Swarup Sastry , ILR (1945) All 702.

67
Rahim Bakhsh v. Bachcha Lal , (1928) ILR 51 All 509.

68
Mackay v. Ford , (1860) 5 H & N 792.

69
Page 57 of 72
Royal Aquarium, etc. v. Parkinson, (1892) 1 QB 431, 451 : 61 LJQB 409 : 66 LT 513; Hodgson v. Scarlett ,
(1818) 1 B & Ald 232, (244).
70
Seaman v. Netherclift, (1876) 1 CPD 540, (545).

71
Pachaiperumal Chettiar v. Dasi Thangam , (1908) ILR 31 Mad 400.

72
Satish Chandra Chakravarti v. Ram Dayal De , (1920) ILR 48 Cal 388 (FB).
73
Jiwan Mal v. Lachhman Dass, (1926) 27 PLR 351.

74
Dawkins v. Lord Rokeby , (1875) LR 7 HL 744; Seaman v. Netherclift, (1876) 1 CPD 540 (545).
75
Watson v. M'Ewan : Watson v. Jones, (1905) AC 480. Statements made by a potential witness as a
preliminary to going into the witness-box are privileged; Sanjivi Reddy v. Koneri Reddi , (1925) ILR 49 Mad
315. Statements made to a police-officer with a view to their being repeated before the Magistrate are
privileged: ibid .
76
Seaman v. Netherclift, (1876) 2 CPD 53 : 46 LJCP 128.

77
(1998) 4 All ER 801 (HL). Followed in Westcott v. Westcott, (2009) 1 All ER 727 (C.A.) oral and written
complaint to police for investigating a crime is protected by absolute privilege.
78
Ibid.
79
Darker v. Chief Constable of the West Midlands Police, (2000) 4 All ER 193 (HL).
80
Ibid.
81
Mahon v. Rahn, (2000) 4 All ER 41 (2000) 1 WLR 2150 (CA).

82
Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry , (1872) 11 Beng LR 321 (328) (PC); Chidambara v.
Thirumani , (1886) ILR 10 Mad 87; Nathji Muleshwar v. Lalbhai , (1889) ILR 14 Bom 97. See, Rasool Bhai
v. Lall Khan , ILR 1939 Ran 479, where Baboo Gunnesh Dutt Singh's case has been commented on.
83
Templeton v. Laurie , (1900) 2 Bom LR 244; ILR 25 Bom 230.

Page 58 of 72
84
Bhikumber Singh v. Becharam Sircar , (1888) ILR 15 Cal 264; Girwar Singh v. Siraman Singh , (1905) ILR
32 Cal 1060; Dawan Singh v. Mahip Singh , (1888) ILR 10 All 425; Tulshi Ram v. Harbans , (1885) 5 AWN
301; Babu Prasad v. Muda Mal , (1913) 11 ALJR 193; Mohun Lall v. Captain Levinge , (1868) PR No. 39 of
1868; Ali Khan v. Malik Yaran Khan , (1879) PR No. 16 of 1878; Kundan v. Ramji Das , (1879) PR No. 146
of 1878; Rajindra Kishore v. Durga Sahi , AIR 1967 All 476 [LNIND 1966 ALL 86].
85
Peddabba Reddi v. Varada Reddi , (1928) ILR 52 Mad 432, dissenting from Manjaya v. Sesha Setti , (1888)
ILR 11 Mad 477, decided under the Penal Code.
86
Hittu v. Sheolal , (1947) ILR Nag 899.

87
Methuram Dass v. Jaggannath Dass , (1901) ILR 28 Cal 794. K. Ramdas v. P. Samu Pillai, (1969) 1 MLJ
338 [LNIND 1968 MAD 346], Maroti Sadasiv v. Godabai Narayanrao , AIR 1959 Bom 443 [LNIND 1958
BOM 74]. The former Chief Court of Lower Burma held that where the investigation by the police was not
into an offence absolute privilege could not be claimed. Statements made in answer to questions asked by
a police-officer making general inquiries as to the names of bad characters with a view to ultimate action
under the preventive sections of the Code of Criminal Procedure are privileged but not absolutely
privileged:Lu Gale v. Po Thein , (1912) 7 LBR 64.
88
Sanjeev Reddi v. Koneri Reddi , (1926) ILR 49 Mad 315.

89
Revis v. Smith , (1856) 18 CB NS 126; Govind Ramchandra v. Gangadhar Mahadeo , (1943) 46 Bom LR
417 : ILR 1944 Bom 222.
90
Henderson v. Broomhead , (1859) 4 H & N 569.

91
Rex v. Salisbury , (1699) 1 Ld Raym 341.

92
Christie v. Christie , (1873) LR 8 Ch 499.

93
McCabe v. Joynt, (1901) 2 IR 115.

94
Nathji Muleshwar v. Lalbhai Ravidat , (1889) 14 Bom 97. In this case the application containing defamatory
matter was made with the object of having other persons joined as parties to the suit.
95
Adivaramma v. Ramachandra Reddy, (1909) 21 MLJ 85 : (1910) MWN 155; Hanumantha Row v.
Seetaramayya, (1942) 1 MLJ 247 [LNIND 1941 MAD 260], (1941) 55 LW 111; Hindustan Gilt Jewel Works
Page 59 of 72
v. Gangayya , ILR (1943) Mad 685. See also, the observations of the same High Court in Hinde v. Baudry ,
(1876) ILR 2 Mad 13.
1
Re Muthusami Naidu , (1912) ILR 37 Mad 110; Ramhirat Kamkar v. Biseswar Nath , (1932) ILR 11 Pat 693;
Brijlal Prasad v. Mahant Laldas , ILR (1940) Nag 48; Vattappa Kone v. Muthukaruppan Servai, (1941) 1
MLJ 200 [LNIND 1940 MAD 381] : 53 LW 238 : (1941) MWN 226. The former Judicial Commissioner's
Court of Upper Burma held likewise: Maung Myo v. Maung Kywet E , (1918) 3 UBR (1917-1920) 88.
2
Sanjivi Reddy v. Koneri Reddi , (1926) ILR 49 Mad 315. Repetition of the statement contained in the
petition before a police-officer to whom the Magistrate referred the complaint for inquiry and report is also
absolutely privileged : Ibid .
3
Bapalal & CO. v. Krishnaswami , ILR 1941 Mad 332. Bapalal's case is dissented from in Surendra Nath v.
Bageshwari Prasad , AIR 1961 Pat 164, ILR 40 Pat 84, where it is held that a defamatory statement
contained in a petition filed before the Superintendent of Police enjoyed at best only a qualified privilege as
the Superintendent of Police is merely an administrative machinery for inquiring whether an offence has
been committed and he cannot, therefore, be said to be acting in the course of judicial proceeding. (There
is a divergence of judicial opinion in the High Courts in India on this point.) See also, Lachhman v.
Pyarchand , AIR 1959 Raj 169 : (1959) RLW 222 [LNIND 1959 RAJ 151] : ILR (1959) 9 Raj 498, where it is
held that a defamatory statement made by an aggrieved party in his report or complaint to the police is
absolutely privileged. See, T. G. Nair v. Meleparath Sankunni , AIR 1971 Ker 280 ; V. Narayana v. E.
Subbanna , AIR 1975 Karn 162 .
4
Bira Gareri v. Dulhin Somaria , AIR 1962 Pat 229 : (1962) 1 Cr LJ 737. Contra. Satish Chandra Mullick v.
Jagat Chandra Dutta , AIR 1974 Cal 266 [LNIND 1973 CAL 235] (qualified privilege).
5
Chunni Lal v. Narsingh Das , (1917) ILR 40 All 341, (FB) overruling Abdul Hakim v. Tej Chandar Mukarji ,
(1881) ILR 3 All 815.
6
Ramhirat Kamkar v. Biseswar Nath , (1932) ILR 11 Pat 693.

7
Ma Mya Shwe v. Maung Maung , (1924) ILR 2 Ran 333.

8
Augada Ram Shaha v. Nemai Chand Shaha , (1896) ILR 23 Cal 867; H. P. Sandyal v. Bhaba Sundari Debi
, (1910) 15 CWN 995 : 14 CLJ 31; Shibnath v. Sat Cowree deb , (1865) 3 WR 198. In a later case,
however, though the point was not necessary for decision MOOKERJEE J., said that in civil suits parties
ought to enjoy the same absolute privilege as under the English law; BEACHCROFT, J., expressed contra ;
C.H. Crowdy v. L.O. Reilly , (1912) 17 CWN 554 : 17 CLJ 105.
9
Giribala Dassi v. Pran Krishto Ghosh , (1903) 8 CWN 292.

Page 60 of 72
In Oudh the view of the Calcutta High Court was followed : Dalpat Singh v. Amarpal Singh , (1918) 21 OC
321.
10
Dawkins v. Lord Rokeby , (1875) LR 7 HL 744; Copartnership Farms v. Harvey-Smith, (1918) 2 KB 405.
11
Dawkins v. Lord Paulet , (1869) LR 5 QB 94.

12
Chatterton v. Secretary of State for India in Council, (1895) 2 QB 189 (194); State v. Griffith , (1869) LR 2
PC 420.
13
Chattarton v. Secretary of State for India in Council, supra.

14
M. Issac & Sons Ltd. v. Cook, (1925) 2 KB 391 : 134 LT 286 : 41 TLR 267.
15
Ibid.
16
Jehangir v. Secretary of State , (1902) 5 Bom LR 30 : (1903) ILR 27 Bom 189 : (1904) 6 Bom LR 131.
17
Ross v. Secretary of State , (1913) ILR 37 Mad 55.

18
Beni Nadho Prasad v. Wajid Ali , ILR (1937) All 390.

19
Fayed v. Al-Tajir , (1987) 2 All ER 396 (CA).

20
WINFIELD & JOLOWICZ, Tort, 12th edition, p. 337 and Merricks v. Nott Bower, (1965) 1 QB 57. See
further , text and note 22, p. 310, ante.
21
Osborn v. Boulter, (1930) 2 KB 226 : 143 LT 460 : 99 LJKB 556; Bryanstan Finance Co. Ltd. v. Devries ,
(1975) 2 All ER 609 (CA). See also title 3(iv) publication, text and note 63, p. 295, ante .
22
Rustom K. Karanjia v. Thackersey , (1969) 72 Bom LR 94; Horrocks v. Lowe , (1975) 1 All ER 662 (669,
670) : (1974) 2 WLR 282 (HL).
23
Horrocks v. Lowe , (1975) 1 All ER 662 (669, 670) : (1974) 2 WLR 282 (HL). In Radhakrishna Nair v.
Chathunni , AIR 2003 Ker 108 [LNIND 2002 KER 705], p. 110 the whole of the paragraph is quoted.
24
Page 61 of 72
Hebditch v. Macllwaine, (1894) 2 QB 54 : 63 LJQB 587 : 70 LT 626; Stuart v. Bell, (1891) 2 QB 341; Clark
v. Molyneux, (1877) 3 QBD 237; Royal Aquarium, etc. v. Parkinson, (1892) 1 QB 431 (434); Dickson v. Earl
of Wilton , (1859) 1 F & F 419; Jackson v. Hopperton, (1864) 16 CBNS 829.
25
Mati Lal Raha v. Indra Nath Bannerjee , (1909) ILR 36 Cal 907.
26
Dawkins v. Lord Paulet , (1869) LR 5 QB 94 (102) Harrison v. Bush , (1856) 5 El & B 344. Report made by
Municipal members in respect of the conduct of a Municipal employee was held to be made on a privileged
occasion: Prem Narain v. Jogdamba Sahai , (1925) ILR 47 All 859.
27
Hebditch v. Macllwaine, (1894) 2 QB 54 : 63 LJQB 587 : 70 LT 626; Beach v. Freeson , (1971) 2 All ER 854
: (1972) 1 QB 14. Adam v. Ward, (1917) AC 309 : 33 TLR 277.
28
Watt v. Longsdon, (1930) 1 KB 130.

29
Adam v. Ward, (1917) AC 309 (HL), p. 334 : 33 TLR 277 (LORD ATKINSON); Watt v. Longsdon, (1930) 1
KB 130; White v. J. and F. Stone (Lighting and Radio) Ltd ., (1939) 2 KB 827; Tushar Kanti Ghose v. Bina
Bhowmick , (1952) 57 CWN 378.
30
Watt v. Longsdon, (1930) 1 KB 130 : 45 TLR 619 : 73 SJ 544 (SRUTTAN L. J.); WEIR casebook on Tort,
5th edition, p. 450.
31
Adam v. Ward, (1917) AC 309 HL, p. 340; Surendra Nath v. Bageshwari Prasad , AIR 1961 Pat 164 .
32
Horrocks v. Lowe , (1974) 1 All ER 662 (670, 671) : (1974) 2 WLR 282 : (1975) AC 135 : 118 SJ 149 (HL).
33
Toogood v. Spyring , (1834) 1 Cr. M & R 181, 193.

34
Horrocks v. Lowe , (1974) 1 All ER 662 (668, 669) : (1975) AC 135 : 118 SJ 149 : (1974) 2 WLR 282 (HL).
35
Ibid.
36
Bashford v. Information Australia (Newsletters) Py. Ltd. , (2004) 78 ALJR 346, pp. 348, 349.
37
Winstanley v. Bampton, (1943) 1 KB 319.

38
Page 62 of 72
G.T.Thomas v. E.M. Simmons , (1898) 4 Burma LR 152; Jusab v. Morrison , (1912) 15 Bom LR 249;
Kunwar Radha Krishen v. H.S. Bates , (1951) ALJ 268.
39
Narasimha v. Balvant , (1903) 5 Bom LR 664 : ILR 27 Bom 585.

40
Govindan Nair v. Achutha Menon , (1915) ILR 39 Mad 433.

41
Radhakrishna Nair v. Chathunni , AIR 2003 Ker 108 [LNIND 2002 KER 705].
42
Gardner v. Slade, (1849) 13 QB 796; Rogers v. Clifton , (1803) 3 B & P 587; Toogood v. Spyring , (1834) 1
Cr M & R 181.
43
Weatherston v. Hawkins , (1786) 1 TR 110 ; Somerville v. Hawkins, (1851) 10 CB 583; Dixon v. Parsons ,
(1858) 1 F & F 24.
44
Walter v. Loch, (1881) 7 QBD 619, 622. See, Beatson v. Skene , (1860) 29 LJ Ex. 430; Cowles v. Potts ,
(1865) 34 LJ QB 247; London Assn. for Protection of Trade v. Greenlands Ltd ., (1916) 2 AC 15 : 114 LT
434 (HL).
45
Macintosh v. Dun, (1908) AC 390 (PC).

46
London Association for portection of trade v. Greenlands Ltd ., (1916) 2 AC 15 (26, 27) : 114 LT 434 (HL)
(LORD BUCKMASTER).
47
Peacock v. Reynal , (1612) 2 B & G 151.

48
Aberdein v. Macleoy, (1893) 9 TLR 539.

49
Scarll v. Dixon , (1864) 4 F & F 250; Boxisus v. Goblet Freres, (1894) 1 QB 842 : 70 LT 368 : 42 WR 392;
Baker v. Carrick, (1894) 1 QB 838; Edmondson v. Birch & Co. Limited, and Horner, (1907) 1 KB 371. See,
Leishman v. Holland , (1890) ILR 14 Mad 51; Thomas Whitehead Mills v. Lawrence Meitchell , (1865)
Bourke 18.
50
Wright v. Woodgate , (1835) 2 Cr M & R 573.

51
A communication from a clergyman in charge of a mission to a lady attached to his staff intimating his
disapproval of her proposed marriage and containing imputations affecting the moral character of the
Page 63 of 72
person whom she was about to marry is a privileged communication, and not actionable unless malice is
shown : X v. Z , (1907) PR No. 83 of 1908.
52
Tarapada Majumdar v. K.B. Ghosh & Co ., AIR 1979 Cal 68 [LNIND 1978 CAL 221]: (1979) 83 Cal WN 96.
53
Minter v. Priest, (1930) AC 558 : 143 LT 57 : 46 TLR 301. The case of More v. Weaver, (1928) 2 KB 520 :
44 TLR 710, which laid down that communication between a solicitor and a client is absolutely privileged,
requires reconsideration.
Where a husband and his father made false allegations regarding the former's wife to a vakil who
communicated the allegations to the wife's father, it was held that the communication though made to their
legal adviser was not absolutely privileged as it was false and made from an improper motive and that they
were liable in damages Balammal v. Palandi Naidu, (1938) 2 MLJ 340 [LNIND 1937 MAD 236] : (1937)
MWN 1108 : (1937) 46 Mad LW 932.
54
Lilley v. Roney, (1892) 61 LJQB 727. Bottomley v. Brougham, (1908) 1 KB 584, 588, 589, followed in
Balammal v. Palandi Naidu , (1937) 46 Mad LW 932 : (1937) MWN 1108 : (1938) 2 MLJ 340 [LNIND 1937
MAD 236], where the defendant's vakil wrote a letter to the plaintiffs containing a malicious defamatory
statement concerning the plaintiffs, viz. “Your daughter ran away with one M from her husband
clandestinely and was staying with him for two days.”
55
Ramdas v. Raja , (1959) RLW 247 [LNIND 1958 RAJ 185].

56
Beach v. Freeson , (1971) 2 All ER 854 : (1972) 1 QB 14 : (1971) 2 WLR 805.

57
Kearns v. General Council of the Bar , (2003) 2 All ER 534 (CA).

58
Watt v. Longsdon, (1930) 1 KB 130 : 98 LJKB 711 : 45 TLR 619 (CA).

59
Stuart v. Bell, (1891) 2 QB 341, 350; Watt v. Longsdon, (1930) 1 KB 130 (CA).
60
London Artists Ltd. v. Littler, (1968) 1 WLR 607; R.K. Karanjia v. Thackersey , AIR 1970 Bom 424 [LNIND
1969 BOM 44] (429).
61
Loutchansky v. Times Newspapers Ltd., (2001) 4 All ER 115 : (2001) EWCA Civ 536 : (2001) 3 WLR 404
(CA).
62
(2002) 1 All ER 652 (CA).
63
Page 64 of 72
Davies v. Snead , (1870) LR 5 QB 608 (611). Presence of other persons does not destroy the privilege :
Pittard v. Oliver, (1891) 1 QB 474.
64
Waller v. Loch, (1881) 7 QBD 619.

65
Allbutt v. General Council of Medical Education and Registration, (1889) 23 QBD 400 : 61 LT 585.
66
Keshavlal v. Bai Girja , (1899) 1 Bom LR 478, ILR 24 Bom 13. Where the defendant alleged before
members of a caste that the plaintiff had committed adultery with a woman of low caste, it was held that the
defendant was within his right in making the statement : Daulat Singh v. Prem Singh , (1938) ALJR 638.
Where a libellous communication is made regarding a member of a caste, the mere fact that the person
making such communication is a member of the caste will not itself suffice to make the communication
privileged : Cooppoosami Chetty v. Durabsami Chetty , (1909) ILR 33 Mad 67.
67
Raghunath Damodhar v. Janardhan Gopal , (1891) ILR 15 Bom 599.

68
Natu v. Keshavji , (1901) ILR 26 Bom 174 : 3 Bom LR 718; Gobind Das v. Bishambhur Das , (1917) 44 IA
192 : 19 Bom LR 707.
69
Gobind Das v. Bishambhur Das , Ibid . The Privy Council held in this case that the occasion of the
publication of such a resolution was privileged even if the resolution had been passed under circumstances
which rendered it irregular (though it was not so in that particular case). See, Aditram v. Hargoyan , (1904)
6 Bom LR 684. Where there was clearest evidence of ill-will between plaintiff and defendant and the
defendant imputed conduct to the plaintiff which was considered bad or very improper by the members of
the community to which the plaintiff belonged, it was held that the defendant was liable : Narsingh Das v.
Sada Ram , (1919) ILR 41 All 329.
70
Chapman v. Ellesmere (Lord), (1932) 2 KB 431 : 146 LT 538; 48 TLR 309.

71
Lightbody v. Gordon , 9 SC. SC 934; Padmore v. Lawrence , (1840) 11 A & E 380; Kine v. Sewell , (1838) 3
M & W 297, 302. Statement contained in a report of an alleged offence made to the police enjoy qualified
privilege: Majju v. Lachman Prasad , (1924) ILR 46 All 671 (FB); Sajjad Husain v. Mul Chand , (1925) ILR 2
OWN 822.
72
Mayr v. Rivaz , (1943) ILR 1 Cal 250.

73
Toogood v. Spyring , (1834) 1 Cr M & R 181; Leslie Rogers v. Hajee Fakir Muhammad Sait, (1918) 35 MLJ
673 [LNIND 1918 MAD 142].
74
Page 65 of 72
Tuson v. Evans , (1840) 12 A & E 733, 736; Queen-Empress v. E.M. Slater , (1890) ILR 15 Bom 351; Abdul
Hakim v. Tej Chandar Mukarji , (1881) ILR 3 All 815. Hinde v. Baudry , (1876) ILR 2 Mad 13.
75
Hunt v. G.N. Ry. Co ., (1891) 2 QB 189 : 60 LJQB 498; Shaik Ameenooddeen v. Bibee Khyroonnissa ,
(1873) 20 WR 60; Mirza Ekhal Bahadoor v. R. Solano , (1865) 2 WR 163; Venkata Narasimha v. Kotayya ,
(1889) ILR 12 Mad 374.
76
Illustration (a) to ninth exception of section 499,IPC.
77
Watts v. Times Newspapers Ltd ., (1996) 1 All ER 152 (CA).

78
O'Donoghue v. Hussey , (1871) Ir. R. 5 CL 124; Coward v. Wellington , (1836) 7 C & P 531, 536; Amrita
Nath Mitter v. Abhoy Charan Ghose , (1904) ILR 32 Cal 318.
79
Amrita Nath Mitter v. Abhoy Charan Ghose, sup .

80
Capital & Counties Bank v. Henty , (1882) 7 App Cas 741 : 47 LT 662 : 31 WR 157. At a heated quarrel at
an election meeting plaintiff called defendant “a rowdy and a suspect”, and the defendant retorted by saying
that the plaintiff was a “drunkard”. After the election the defendant repeated that the plaintiff was a
drunkard. It was held that the defendant was not liable for the use of the word at the meeting but liable for
subsequent use of it: Subbaraidu v. Sreenivasa Charyulu, (1926) 52 MLJ 87.
81
Coward v. Wellington , (1836) 7 C & P 531, 536.

82
Laughton v. Bishop of Sodor and Man , (1872) LR 4 PC 495; Koenig v. Ritchie , (1862) 3 F & F 413; Regina
v. Veley , (1867) 4 F & F 1117. See, The Englishman, Ltd. v. The Hon'ble Antonio Arrivabene , (1930) 35
CWN 271, 52 CLJ 345, where the plaintiff's complaint about an interview was published along with the
editor's note as to the reliability of the reporter who took the interview.
83
King v. Waring , (1803) 5 Esp 13.

84
Harrison v. Bush , (1856) 5 E & B 344; Watt v. Longsdon, (1930) 1 KB 130 : 45 TLR 619 : 73 SJ 544; De
Buse v. Mccarthy, (1942) 1 KB 156 : 58 TLR 83 : (1942) 1 All ER 19; Venkata Narasimha v. Kotayya ,
(1889) ILR 12 Mad 374; Mati Lal Raha v. Indra Nath Bannerjee , (1909) ILR 36 Cal 907.
85
Ravunni Menon v. Neelakandan Nambudri , (1934) MWN 345.

86
Duncombe v. Daniell , (1837) 8 C & P 222.

87
Page 66 of 72
Todd v. Hawkins , (1837) 8 C & P 88.

88
Admas v. Coleridge, (1884) 1 TLR 84.

89
Quartz Hill Consolidated Gold Mining Co. v. Beall , (1882) 20 Ch D 501 (509); Baker v. Carrick, (1894) 1
QB 838 : 70 LT 366. If such letter contains a statement of independent and extraneous matter unconnected
with and not relevant to the purposes of the letter the privilege will be lost : M'Keogh v. O'Brien Moran,
(1927) IR 348.
90
C. Bodycote v. C.W. Mcmorran , (1898) 4 Burma LR 212.

91
Watt v. Longsdon, (1930) 1 KB 130 : 45 TLT 619 : 73 SJ 541. See also , text & notes : 28, 29, p. 322.
92
Harrison v. Bush , (1856) 5 E & B 344.

93
Woodward v. Lander , (1834) 6 C & P 548.

94
James v. Boston , (1845) 2 C & K 4.

95
Rex v. Rule , (1937) 30 Cox 398.

96
Bindeshwari Prasad Tiwari v. Hanuman Prasad Tiwari , (1923) 22 ALJR 65; Ghulam Rasool v. Ibrahim Beg
, (1933) 11 OWN 122.
97
Blagg v. Sturt, (1846) 10 QB 899.

1
15 & 16 Geo. VI & I, Eli. II c. 66, s. 7(1). For construction of the Act see Tasikata v. Newspaper Publishing
Plc., (1997) 1 All ER 655 (CA).
2
Chapman v. Ellesmere, (1932) 2 KB 431 (475) : 146 LT 538 : 76 SJ 248.

3
Steele v. Brannan , (1872) LR 7 CP 261 (268); The King v. Carlile , (1819) 3 B & Ald 167. See, to the same
effect s. 3 of the Law of Libel Amendment Act, 1888 (51 & 52 Vic., c. 64).
4
Brook v. Evans , (1860) 29 LJ Ch 616.

5
Page 67 of 72
The Judicial Proceedings (Regulation of Reports) Act, 1926, 16 & 17 Geo V., c. 61.
6
The King v. J. Wright , (1799) 8 TR 293, 298; M.G. Perera v. Andrew Vincent Perris , AIR 1949 PC 106 :
(1949) AC 1 (PC).
7
Burnett and Hallamshire Fuel Limited v. Sheffield Telegraph and Star Limited , (1960) 2 All ER 157 : (1960)
1 WLR 502 : 104 SJ 388.
8
Andrews v. Chapman , (1853) 3 C & K 286. A report of a libellous speech of counsel without the evidence
by which it was supported is not a fair report : Kane v. Mulvaney , (1866) Ir. R. 2 CL 402. No comment is
allowed until the proceedings terminate : Lewis v. Levy , (1858) 27 LJ QB 282.
9
Milissich v. Lloyds, (1877) 46 LJCP 404.

10
Stiles v. Nokes , (1806) 7 East 493.

11
Ussil v. Hales, (1878) 3 CPD 319, Kimber v. The Press Association, (1893) 1 QB 65; 67 LT 515. See,
M'Gregor v. Thwaites ; (1824) 3 B & C 24.
12
Macdougall v. Knight, (1890) 25 QBD 1.

13
Webb v. Times Publishing Co. Ltd ., (1960) 2 All ER 789 : (1960) 2 QB 535 : (1960) 3 WLR 352.
14
Chapman v. Ellesmere (Lord), (1932) 2 KB 431 : 146 LT 538 : 76 SJ 248.

15
Farmer v. Hyde, (1937) 1 KB 728 : 156 LT 403 : 53 TLR 495.

16
Goffin v. Donnelly, (1881) 6 QBD 307; Lala Lajpat Rai v. The “Englishman” Ltd. , (1909) 13 CWN 895;
(1910) 14 CWN 713.
17
M.G. Perera v. Andrew-Vincent Perris , AIR 1949 PC 106.

18
Cook v. Alexander , (1973) 3 All ER 1037 (CA), p. 1042.

19
Wason v. Walter , (1868) LR 4 QB 73. See, Mangena v. Wright, (1909) 2 KB 958.

20
Page 68 of 72
Vide Act No. XXIV of 1956.

21
C.K. Daphthary v. O.P. Gupta , AIR 1971 SC 1132 (1147, 1148) (every pamphlet or booklet is not a
newspaper).
22
Ibid.
23
Allbutt v. General Council of Medical Education and Registration, (1889) 23 QBD 400 : 58 LJQB 606 : 61
LT 585.
24
Pittard v. Oliver, (1891) 1 QB 474.

25
Purcell v. Sowler, (1877) 1 CPD 785.

26
McCartan Turkington Breen (a firm) v. Times Newspapers Ltd., (2000) 4 All ER 913 (HL).
27
51 & 52 Vic., c. 64, s. 4.
28
15 & 16 Geo. VI & I, Eliz II, c. 66, s. 10.
29
SALMOND & HEUSTON, Law of Torts, 18th edition, p. 176.
30
6 & 7 Vic. Ch 96, s. 2. Every such defence must be accompanied by a payment of money into Court by way
of amends (Libel Act, 1845, s. 2 : 8 & 9 Vict. C. 75).
31
15 & 16 Geo. VI & I, Eliz. II, Ch 66, s. 4.
32
K.P. Narayanan v. Mahendrasingh , ILR 1956 Nag 439.

33
See Hepple, Howarth & Matthews Tort (Cases and Materials) 5th edition Butterworths (2000), pp. 991 to
993.
34
See text and notes 65 to 67, p. 335, infra .

35
Krishnarao v. Firm Radhakisan Ramsahai , ILR 1956 Nag 236. But, see, Dainik Bhaskar v. Madhusudan
Bhaskar , AIR 1991 MP 162 [LNIND 1990 MP 216], p. 168.
36
Page 69 of 72
See , title 3(iii)(b), p. 286, supra.

37
Subbaiyar v. Krishnaiyar , (1878) ILR 1 Mad 383; Brahmanna v. Ramakrishnama , (1894) ILR 17 Mad 250;
Oodai v. Bhowanee , (1866) 1 Agra HC 264; Daya v. Param Sukh , (1888) ILR 11 All 104. If such a person
is not sui juris then a suit can be brought by his guardian or next friend : Daya v. Param Sukh , (1888) ILR
11 All 104. In a suit for libel defamatory of a firm all the partners should be joined as plaintiffs: Mati Lal
Raha v. Indra Nath Bannerjee , (1909) ILR 36 Cal 907.
38
Luckumsey Rowji v. Hurtun Nursey , (1881) ILR 5 Bom 580.

39
Ashley v. Harrison , (1793) Peake 194, 256. In this case the proprietor of a public amusement brought an
action against a man for a libel on one of his performers by reason whereof she was deterred from
appearing on the stage, but it was dismissed.
40
Subbaiyar v. Krishanaiyar, sup .

41
Daya v. Param Sukh , (1888) ILR 11 All 104.

42
Luckumsey Rowji v. Hurtun Nursey, sup .

43
Brahmanna v. Ramakrishnama , (1894) ILR 18 Mad 250.

44
Sukan Teli v. Bipal Teli, (1906) 4 CLJ 388.

45
The fact that the libel is published in a newspaper is an important consideration in assessing damages:
Lajpat Rai v. “The Englishman “, (1909) ILR 36 Cal 883. But because the newspaper is a defendant, it
cannot be said without more that the publication has been made with a view to make profit. Only when a
more pecuniary benefit than in the ordinary course of business is shown to have been made by the
newspaper that punitive damages may be awarded: Rustom K. Karanjia v. Thackersey , (1969) 72 Bom LR
94. It has been held in Manson v. Associated Newspapers , (1965) 2 All ER 954 : (1965) 1 WLR 1038 : 109
SJ 457, that if a newspaper, in the ordinary way of business, publishes news in regard to a particular matter
and happens to make a mistake, the mere fact that it is publishing for profit does not open the door to an
award of exemplary damages.
46
See, Vaidianatha Sastriar v. Somasundara Thambiran, (1912) 24 MLJ 8.

47
If the libel is merely a technical one and has not damaged the plaintiff's reputation, nominal damages and
costs would ordinarily be awarded: Lieut Col. Gidney v. The A.I.& D.E. Federation , (1930) ILR 8 Ran 250.
See Dina Nath v. Sayad Habib , (1929) ILR 10 Lah 816; Narayanan Chettiar v. Veeru Goundar , (1941)
Page 70 of 72
MWN 922. See further Gorautla Venkateshwarlu v. B. Deomudu , AIR 2003 AP 251 [LNIND 2002 AP 846],
p. 253 (The passage in the taxt from this books is quoted).
48
Venkayya v. Surya Prakasamma , (1941) Mad 255, Ma Sein Tin v. U. Kyaw Maung , AIR 1936 Ran 332,
dissented from.
49
Ooma Churn v. Grish Chunder , (1875) 25 WR 22. The whole doctrine of awarding penal and exemplary
damages in cases of libel is due to the illegitimate encroachment of the considerations of punishment by
fine in criminal jurisprudence into the realm of civil litigation in England and should not be followed in this
country; per SADASHIVA AIYAR, J., in Naganatha Shastri v. Subramania Iyer , (1917) 5 Mad LW 598.
50
Rustom K. Karanjia v. Thackersey , (1969) 72 Bom LR 94.

51
(1990) 64 Australian Law Journal, pp. 311, 312. See also, the observations of SADASHIVA AIYAR J,
quoted in note 49, supra .
52
Rantzen v. Mirror Group Newspapers , (1986) Ltd., (1993) 4 All ER 975 (CA), p. 976.
53
John v. MGN Ltd. , (1996) 2 All ER 35 (CA).

54
Ibid , pp. 47, 48.

55
Ibid .
56
Ogilvie v. The Punjab Akhbarat and Press Company , (1929) ILR 11 Lah 45.
57
See, Lajpat Rai v. The Englishman , (1909) ILR 36 Cal 883.

58
Ogilvie v. The Punjab Akhabarat and Press Company, sup. An unsustained plea of justification is a good
ground for depriving a party of his costs: Makhanlal v. Panchamlal , (1934) 31 NLR 27.
59
M'Gregor v. Gregory , (1843) 11 M & W 287; Churchill (Lord) v. Hunt , (1819) 2 B & Ald 685; Clarke v.
Taylor , (1836) 2 Bing NC 654.
60
Pearson v. Lemaitre , (1843) 5 M & G 700. If a newspaper publishes information supplied by a

correspondent, no malice will be attributed to it; Ogilvie v. The Punjab Akhbarat and Press Company ,
(1929) ILR 11 Lah 45.
61
Page 71 of 72
Libel Act, 1843 (6 & 7 Vict., c. 96), s. 2.

62
Finnerty v. Tipper , (1809) 2 Camp 72.

63
Tarpley v. Blaby , (1836) 7 C & P 395.

64
W. A. Providence v. P.T. Christenson, (1914) 7 BLT 155. It is, however, only evidence of bad reputation
prior to the publication of the libel in suit that can be taken into account in mitigation of damages for
defamation and contemporaneous publication of the same libel by other persons is no ground for mitigating
damages: Associated Newspapers Limited v. Dingle , (1962) 2 All ER 737. In an action for damages, the
defendant can lead evidence to show the plaintiff's bad reputation, but such reputation must be in a sector
of life relevant to the alleged libel; and evidence tending to show what character he ought to have in public
estimation—as distinct from the one he did have—or of his disposition is inadmissible in mitigation of
damages: Plato Films Ltd. v. Speidel , (1961) 1 All ER 876, (1961) 2 WLR 470, 105 SJ 230. This case is
distinguished in Goody v. Odhams Press Ltd ., (1966) 3 All ER 369 : (1967) 1 QB 333 : 110 SJ 793, where
it is held that evidence of plaintiff's previous convictions is admissible in mitigation of damages provided
that the convictions are in the relevant sector of the plaintiff's life and have taken place recently enough to
affect his current reputation.
65
Quartz Hill Con. Mining Co. v. Beall , (1882) 20 Ch D 501; Bonnard v. Perryman, (1891) 2 Ch 269. This
case lays down an absolute rule of practice with regard to the circumstances under which an interlocutory
injunction ought to be granted pending the trial in actions of libel: Monson v. Tussauds Ltd., Monso v. Louis
Tussaud, (1894) 1 QB 671 : 63 LJQB 454 : 70 LT 335. Gulf Oil (GB) Ltd. v. Page , (1987) 3 All ER 14 (CA),
p. 18.
66
Solomons v. Knight, (1891) 2 Ch 294.

67
Thomas v. Williams , (1880) 14 Ch D 864; Collard v. Marshall, (1892) 1 Ch 571.

68
Australian Broadcasting Corporation v. O Neill, (2006) 80 ALJR 671.

69
Gulf Oil (GB) Ltd. v. Page , (1987) 3 All ER 14 (CA), pp. 18, 19.
70
K.V. Ramaniah v. Special Public Prosecutor , AIR 1961 AP 190 [LNIND 1960 AP 106]; Harishankar v.
Kailash Narain , 1981 MPLJ 589.
71
Harishankar v. Kailash Narain, supra .

72
Woozeerunnissa Bibee v. Syed Mahomed , (1875) 15 Beng LR 166n. See, however, Order I, rule 2, Civil
Procedure Code.
Page 72 of 72
73
PER PONTIFEX, J., in Nilmadhub Mookerjee v. Dookeeram , (1874) 15 Beng LR 161, 166.
74
Egger v. Viscount Chelmsford , (1964) 3 All ER 406 : (1965) 1 QB 248 (1964) 3 WLR 714.
75
Aldridge v. Barrow , (1907) ILR 34 Cal 662.
End of Document
CHAPTER XIII MALICIOUS PROCEEDINGS
1. MALICIOUS PROSECUTION
1(A) Nature of
MALICIOUS prosecution is malicious institution against another of unsuccessful criminal, 1 or bankruptcy, 2 or

liquidation proceedings, 3 without reasonable or probable cause. This tort balances two competing principles,
namely the freedom that every person should have in bringing criminals to justice and the need for restraining false
accusations against innocent persons. 4 The foundation of the action lies in abuse of the process of the Court by
wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an
improper purpose. 5
In an action for malicious prosecution plaintiff must prove: 6

1 That he was prosecuted by the defendant.
2 That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable
of so terminating.
3 That the prosecution was instituted against him without any reasonable or probable cause.
4 That the prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying
the law into effect, but with an intention which was wrongful in point of fact. 7
5 That he has suffered damage to his reputation or to the safety of person, or to the security of his property. 8
1(B) Prosecution by Defendant
The requirement of prosecution by the defendant involves two elements, first that the plaintiff was prosecuted and
secondly, that the defendant was the prosecutor. To prosecute is to set the law in motion which is done by an
appeal to some person clothed with judicial authority in regard to that matter. The gist of the action is that the
defendants set the Magistrate in motion. 9 The word “prosecution” carries a wider sense than a trial and includes
criminal proceedings by way of appeal, or revision. 10 It is no excuse for the defendant that he instituted the
prosecution under the order of a Court, if the Court was moved by the defendant's false evidence to give the order.
For, otherwise, the defendant would be allowed to take advantage of his own fraud upon the Court which ordered
the prosecution. 11 Similarly, if the prosecution is launched on the information supplied by and the active
participation of the defendant, the defendant will be liable even though he may not have himself figured as the
complainant in the Criminal Court. 12 The person liable is the prosecutor to whose instigation the proceedings are
due. Instigating a prosecution is to be distinguished from the act of merely giving information, on the strength of
which a prosecution is commenced by someone else in the exercise of his own discretion. 13 When the defendant
himself is the person on whose complaint the Court takes cognizance against the plaintiff, there is no difficulty in
holding that the defendant is the prosecutor. In other cases, it is a question of fact 14 whether the defendant is the
prosecutor which has to be answered having regard to all the circumstances of the case. The principles bearing on
Page 2 of 36
this question were laid down by the Privy Council as follows : “It is not a principle of universal application that if the
police or Magistrate act on information given by a private individual without a formal complaint or application for
process, the Crown and not the individual becomes the prosecutor. If a complainant does not go beyond giving
what he believes to be correct information to the police, and the police, without further interference on his part
(except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him
responsible in damages for the failure of the prosecution. But, if the charge is false to the knowledge of the
complainant, if he misleads the police by bringing suborned witnesses to support it, if he influences the police to
assist him in sending an innocent man for trial before the Magistrate, it would be equally improper to allow him to
escape liability because the prosecution has not, technically, been conducted by him. The question in all cases of
this kind must be: Who was the prosecutor? And the answer must depend upon all the circumstances of the case.
The mere setting of the law in motion is not the criterion; the conduct of the complainant, before and after making
the charge, must also be taken into consideration. Nor is it enough to say that the prosecution was instituted and
conducted by the police. That again is a question of fact. Theoretically, all prosecutions are conducted in the name
and on behalf of the Crown, but in practice this duty is often in the hands of the person immediately aggrieved by
the offence, who pro hac vice represents the Crown.” 15 A private person may be allowed to conduct a prosecution
under s. 495 of the Criminal Procedure Code. When this is permitted, it is obviously an element to be taken into
consideration in judging who is the prosecutor and what are his means of information and motives.16 If a person
lodges knowingly false information with the police naming the plaintiff as the accused and supports the same by his
false evidence before the police as also in Court, he will be held to be the prosecutor in a suit ‘for malicious
prosecution’ even though the Court takes cognizance of the case on police challan. 17 Where a person falsely and
maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states
that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and
intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating
to the alleged offence can be within the knowledge only of the complainant and if a prosecution is instituted by the
police officer, the proper view of the matter is that the prosecution has been procured by the complainant. In all
such cases the person giving information to the police being the real prosecutor can be made liable for malicious
prosecution if other ingredients of the tort are satisfied even though at the hearing before the court no evidence was
offered and the charge was dismissed. 18 But the investigating officer who files the challan on the basis of a false
report and supported by false evidence cannot be made liable, unless he was privy in procuring the false report and
false evidence, for it is not his duty to scrutinise the evidence like a Court and he is bound to file the challan if he
honestly believes that there is reasonable and probable cause to bring the accused to a fair trial. 19 A pathologist
preparing a post mortem report or a person appearing merely as a witness, cannot be held to be a prosecutor. 20
Prosecution requires approach to a person clothed with judicial authority for setting the law in motion. 21 But a
question often arises as to at what stage the proceedings initiated before a judicial authority can be properly
described as a prosecution for purposes of malicious prosecution. The Privy Council has laid down that to found an
action for damages for malicious prosecution based upon criminal proceedings, the test is not whether the criminal
proceedings have reached a stage at which they may be correctly described as a prosecution; but the test is
whether such proceedings have reached a stage at which damage to the plaintiff results. It is not correct to say that
the mere presentation of a false complaint which seeks to set the criminal law in motion will per se found an action
for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with
which he can deal, there is nothing but an unsuccessful attempt to set the criminal law in motion and no damage to
the plaintiff results. Where the Magistrate takes cognizance of a complaint under s. 190 of the Criminal Procedure
Code, examines the complainant on oath under s. 200, holds an inquiry in open Court under s. 202 which the
plaintiff attends and dismisses the complaint under s. 203 of the Code, the prosecution is deemed to have
commenced so as to found an action for malicious prosecution.22
A prosecution commences, according to the Bombay High Court, when a complaint is made; and it is not necessary
in order to maintain this action that the charge should have been acted upon by a Magistrate. It is enough if the
charge is made to the Magistrate with a view to induce him to entertain it. 23 The defendant lodged an information
with the police about the commission of a cognizable offence and pointed suspicion at the plaintiff as the offender.
The police started investigation into the offence, arrested the plaintiff, took remands from a Magistrate pending
investigation, but at last released the plaintiff from custody as no evidence was forthcoming to connect him with the
Page 3 of 36
offence. The plaintiff having sued the defendant to recover damages for malicious prosecution it was held that the
defendant was not liable, as in doing what he did he could not be regarded as launching a prosecution. 24 The
Calcutta, 25 the Madras 26 and the Orissa 27 High Courts have held that a suit for damages for malicious
prosecution does not lie where no process has been issued to the plaintiff to appear. Where, on a complaint being
made, the Magistrate sent the case to the police for inquiry and report but never issued process, it was held by the
Calcutta High Court that no cause of action lay against the person lodging the complaint. 28 The mere filing of a
false complaint which may fail is not per se a prosecution which may found such an action. 29 The Patna High
Court has held that if no process is actually issued, but an order for the issue of process is actually recorded and
the accused appears, the prosecution must be deemed to have commenced. 30 The Allahabad High Court has
decided that it is not necessary that the criminal proceedings should have been heard out to the end; it is sufficient
if they have been initiated, though they may have fallen through for technical reasons unconnected with the merit.
31
It is submitted that the issue of process to the accused by the Magistrate is not always the decisive factor and it is
not correct to say that till the Magistrate issues a process to the accused, the proceedings never reach the stage of
prosecution. The decisive factor, as pointed out by the Privy Council, 32 is damage to the plaintiff. For example, if a
per se defamatory charge is levelled in a complaint against the plaintiff, the complainant is examined on oath and
an inquiry under section 202 of the Code of Criminal Procedure is held in which complainant's witnesses are
examined in open Court, the stage is reached where damage to the plaintiff's reputation occurs though the
complaint is dismissed by the Magistrate under section 203 of the Code of Criminal Procedure without issuing any
process to the plaintiff. Similar will be the case when a magistrate sends the complaint for police investigation and
after receiving the report of the police dismisses it under section 203. The Madhya Pradesh High Court33 after a
review of authorities has held that in such a situation a prosecution results for purposes of malicious prosecution.
Similarly, where the plaintiff's house was searched in consequence of the complaint by the defendant, the
defendant was held liable by the Patna High Court though the complaint was dismissed before any summons or
warrant was issued against him. 34 The observation of BRETT, M.R. that “laying the information before the
Magistrate would not be the commencement of the prosecution because the Magistrate might refuse to grant a
summons and if no summons, how could it be said that a prosecution against anyone ever commenced,” 35 which
has been relied upon in some cases 36 was in fact made in a case which had nothing to do with malicious
prosecution, and the Madhya Pradesh High Court declined to accept it. 37 The Supreme Court of Canada has also
not followed it for the same reason and has held that where a Magistrate receives an information within his
jurisdiction and has heard and considered the same, a prosecution has commenced though the information was
later withdrawn without any issue of summons or warrant to the accused. 38
Security, sanction, and other proceedings.— A suit for damages for malicious prosecution is maintainable though
the proceedings complained of are not strictly criminal. According to the Madras High Court, an application to a
Magistrate to take security under the Code of Criminal Procedure does not afford a cause of action for malicious
prosecution.39 But it has held that a suit for malicious prosecution can be based on the institution of proceedings
under s. 144, Code of Criminal Procedure. It must be proved that legal damage was suffered as a consequence of
the institution of these proceedings.40 The Madras High Court has also held that a proceeding under s.
145,Criminal Procedure Code, constitutes a prosecution in respect of which a suit for damages for malicious
prosecution would lie. But a suit is not maintainable as costs are provided for in respect of proceedings under s.
145, Code of Criminal Procedure, and that is the only mode by which the successful party can indemnify itself in
respect of costs incurred in a proceeding of that description.41 The Calcutta High Court has held that any
enforcement of the criminal law through courts of justice concerning a matter which will subject the accused to a
prosecution, without regard to the technical form in which the charge has been preferred and irrespective of the
grade of the criminal offence is a sufficient proceeding upon which an action of malicious prosecution may be
based. The word ‘prosecution’ in ‘malicious prosecution’ should not be interpreted in the restricted sense in which it
is used in the Criminal Procedure Code; it is not essential that the original proceeding should have been of such a
nature as to render the person against whom it was taken liable to be arrested, fined, or imprisoned.42 Proceedings
under s. 476 of the Criminal Procedure Code initiated and conducted by one person against another to whom notice
is issued and who, therefore, appears and defends himself, constitute a ‘prosecution’ in respect of which a suit for
damages for malicious prosecution can lie.43 A suit for malicious prosecution will lie where the plaintiff is obliged to
Page 4 of 36
defend himself in proceedings in a civil Court for sanction instituted by the defendant without just, reasonable or
probable cause. 44 ‘Prosecution’ does not mean prosecution before a Magistrate or a Criminal Court. 45 The
Allahabad 46 and the Lahore 47 High Courts hold the same view as the Calcutta High Court. A person against
whom a proceeding under s. 133, Code of Criminal Procedure has been instituted maliciously and without
reasonable cause is entitled to recover damages by suit in the civil Court.48
Proceedings under s. 13 of the Legal Practitioners Act are quasi- criminal proceedings and a suit for damages for
malicious prosecution lies against the person at whose instance such proceedings were started. 49
The Allahabad High Court has held that a suit for damages for malicious prosecution will lie even though the
prosecution was under a Municipal Act. 50 But the Madras High Court 51 is of the opinion that the prosecution
must have been for an offence, a conviction for which would carry reprobation impairing the party's fair name. It is
not enough that the proceedings were penal in form as is the case under many administrative statutes. It is also
said that prosecutions under the Municipal Acts for failure to pay tithe or revenues cannot be deemed to be
completely criminal proceedings. They are quasi civil in nature. Where the prosecution was not one which cast any
slur or odium upon the character and good name of the plaintiff, no action would lie. 52 It is submitted that these
views confuse the issue of prosecution with the issue of damage. If an offence is punishable with imprisonment,
prosecution of the plaintiff for such an offence will normally result in damage to his reputation and the plaintiff will
not have to prove any other damage to sustain his suit for malicious prosecution. But when an offence is punishable
only with fine and no moral stigma is likely to follow from that offence, the plaintiff to succeed in a suit for malicious
prosecution will have to prove some pecuniary damage, e.g., expenses incurred for his defence. 53 The correct
view, therefore, is that a suit for malicious prosecution will lie even in respect of offences under the so-called
administrative statutes provided the plaintiff has suffered some special damage. 54
1(C) Termination of proceedings in favour of plaintiff
It is essential to show that the proceeding alleged to be instituted has terminated in favour of the plaintiff, if, from its
nature, it be capable of such a termination. 55 The reason seems to be that, if in the proceeding complained of the
decision was against the plaintiff and was unreversed, it would not be consistent with the principles on which law is
administered, for another Court, not being a Court of Appeal, to hold that the decision had come to without
reasonable and probable cause. 56 The plaintiff need not prove an acquittal, for a prosecution may be determined
in various ways, 57 or his innocence. 58 “What the plaintiff requires for his action is not the judicial determination
of his innocence but merely the absence of any judicial determination of his guilt.” 59 It is enough if the prosecution
has been discontinued, 60 or if the accused has been acquitted, 61 or discharged, 62 or if a conviction has been
quashed for some defect in the proceedings, 63 or the proceedings are quashed at the cognizance stage on the
ground that they are frivolous, 64 or if the order granting sanction to prosecute is set aside in appeal. 65
Where proceedings are withdrawn by the complainant as a result of settlement with only one of the several persons
complained against, the other persons can maintain a suit against the complainant for damages for malicious
prosecution. 66
Even if the plaintiff is convicted by the trial Court but the conviction is set aside in appeal, the plaintiff can sue for
malicious prosecution. 67 When the plaintiff is acquitted of the offence for which he is prosecuted but is convicted
of a lesser offence, he may still sue for malicious prosecution of the graver offence of which he is acquitted. 68
The principle that in an action for malicious prosecution it is essential to aver that the proceeding complained of
terminated in the plaintiff's favour, applies equally where the result of those proceedings was merely that the plaintiff
was ordered to enter into recognizances to keep the peace and to find sureties for his good behaviour. 69
In an action for malicious prosecution the cause of action arises, not on the date of the institution of the proceeding
complained of, but on the date when the proceeding terminates in favour of the plaintiff. 70
1(D) Reasonable and probable cause

Page 5 of 36
‘Reasonable and probable cause’ is an honest belief in the guilt of the accused based on a full conviction, founded
upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would
reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that
the person charged was probably guilty of the crime imputed. There must be,
first, an honest belief of the accuser in the guilt of the accused;
secondly, such belief must be based on an honest conviction of the existence of circumstances which led the
accuser to that conclusion;
thirdly, such secondly mentioned belief as to existence of the circumstances must be based upon reasonable
grounds, that is such grounds, as would lead any fairly cautious man in the defendant's situation to believe so;
fourthly, the circumstances so believed and relied on by the accuser must be such as amount to a reasonable
ground for belief in the guilt of the accused. 71
Reasonable and probable cause means that there are sufficient grounds for thinking that the accused was probably
guilty but not that the prosecutor necessarily believes in the probability of conviction; he is only concerned with the
question whether there is a case fit to be tried. Objectively there must be reasonable and probable cause for the
prosecution, and the prosecutor must not disbelieve in his case, even though he relies on legal advice. 72 If the
defendant can be shown to have initiated the prosecution without himself holding an honest belief in the truth of the
charge, he cannot be said to have acted upon reasonable and probable cause. 73 Further, mere belief in the truth
of the charge is not sufficient if the circumstances before the defendant would not have led “an ordinary prudent and
cautious man” to conclude that the person charged was probably guilty of the offence. 74
“Probable cause” is not the same thing as “sufficient cause” and has to be judged from the standard of a reasonable
and ordinarily prudent man. 75
The plaintiff must give some evidence of the want of reasonable and probable cause before the defendants can be
called upon to show the existence of such cause. 76 When the plaintiff has given such evidence as, if not
answered, would entitle him to succeed, the burden of leading evidence shifts to the defendant to establish the
contrary. 77 The burden of proof in the sense of proving the case that there was want of reasonable and probable
cause is on the plaintiff and it is not for the defendant to establish that there was reasonable and probable cause.
78
Lack of reasonable and probable cause is to be understood objectively: it does not connote the subjective attitude
of the accuser. The fact that accuser himself thinks that it is reasonable to prosecute does not per se lead to the
conclusion that judicially speaking he had reasonable and probable cause for the prosecution. 79 Where the
accusation against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit,
and the trial ends in an acquittal on the merits, the presumption will be not only that the plaintiff was innocent, but
also that there was no reasonable and probable cause for the accusation. 80 In order to justify a defendant, there
must be a reasonable cause, such as would operate on the mind of a discreet man; there must also be a probable
cause, such as would operate on the mind of a reasonable man, at all events such as would operate on the mind of
the party making the charge; otherwise there is no probable cause for him. 81 The test which has received the
most approbation is partly abstract and partly concrete. Was it reasonable and probable cause for any discreet
man? Was it so to the maker of the charge? 82 Mere circumstance of suspicion cannot be relied on as evidence of
reasonable and probable cause. 83 The prosecutor's belief in the guilt of the accused must be based on grounds
which, or some of which, are reasonable and arrived at after due inquiry. 84 It is not required of any prosecutor that
he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is
a defence, but whether there is reasonable and probable cause for a prosecution. 85 What is required is that the
prosecutor should have taken reasonable steps to ascertain the true state of the case and that he or his advisers
should have finally considered the matter in the light of admissible evidence alone. 86 If there is reasonable and
probable cause for the prosecution no question of malice arises, because the existence of reasonable cause in the
mind of the plaintiff is sufficient, whatever his motive may have been, to enable him to justify the proceedings he
brings or the prosecution he starts. 87
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The question of reasonable and probable cause may, perhaps, resolve itself into one of degree. Where there is a
theft of 20s and reasonable and probable cause is shown as regards 19s of it, it may well be that the prosecutor,
when sued for malicious prosecution, is entitled to succeed, because he was justified in making the charge, even
though he did so maliciously. But the contrary must surely be the case if the figures are reversed and reasonable
and probable cause is shown as to 1s only out of the 20s. 88
The existence of reasonable and probable cause is of no avail if the prosecutor prosecuted in ignorance of it. 89
The dismissal of a prosecution 90 or acquittal of the accused 91 does not create any presumption of the absence
of reasonable and probable cause. If a man prefers an indictment containing several charges, whereof for some
there is, and for others there is not, probable cause, his liability for malicious prosecution is complete. 92
The opinion of counsel, as to the propriety of instituting a prosecution, will not excuse the defendant if the charge
was a malicious one. 93 But if a party lays all the facts of his case fairly before counsel, and acts bona fide upon
the opinion given by that counsel (however erroneous that opinion may be) he is not liable. 94 An oral opinion
given by experienced counsel after the facts had been fairly and fully put before him would be a potent though not a
conclusive factor in determining whether there was reasonable and probable cause to initiate prosecution. 95
Where the Attorney-General grants his fiat for the prosecution there cannot be an absence of reasonable and
probable cause. 96
If the charge is found to be false, the onus would be on the defendant to show that he has reasonable and sufficient
cause for making it. 1 When the cognizance of the criminal case was quashed by the High Court holding that the
complaint was filed to harass the plaintiff and the facts and circumstances justified that finding, it could not be said
that the defendant had acted with reasonable and probable cause. 2
The fact that the plaintiff has been acquitted is not prima facie evidence that the charge was unreasonable and
false. 3 The question of reasonable and probable cause has to be determined upon facts known to the prosecutor
at the time of the launching of the prosecution and, therefore, the fact that the prosecution endedin the acquittal of
an accused can never come into the determination of the question of reasonable and probable cause. 4 But the
fact that he has been convicted by a competent Court, although he may subsequently have been acquitted on
appeal, is evidence against the plaintiff's necessary plea of want of reasonable and probable cause. 5 The fact that
the plaintiff in a suit for damages for malicious prosecution had been convicted by the trial Court and only acquitted
on appeal is ordinarily prima facie evidence to prove the existence of reasonable and probable cause for his
prosecution by the defendant. 6 It does not, however, follow that the suit will not lie where the plaintiff has been
convicted by a competent Court and only acquitted on appeal. If the accused in a criminal case is convicted by the
trial Court, but he is acquitted on appeal, and thereafter, such accused as plaintiff brings a suit for malicious
prosecution against the complainant in the criminal case, then speaking generally it may prima facie be held that
there is no want of reasonable and probable cause for the prosecution. But this general rule does not apply if the
facts alleged by the prosecution were within the personal knowledge of the complainant and the Court of Appeal
disbelieved the complainant and acquitted the accused, even though the trial Court believed the complainant and
convicted the accused. In such circumstances, in a suit for malicious prosecution, the question relating to want of
reasonable and probable cause should be decided on all facts before the Court. 7 An accusation which has been
held by a criminal Court to be unfounded is, if at all, only prima facie evidence that the accusation was maliciously
brought. 8 For, the proceedings in a Criminal Court are not evidence in a Civil Court. 9 It is for the Civil Court to go
into all the evidence and decide for itself whether malice or want of reasonable and probable cause existed or not.
10 The judgment of a Criminal Court is admissible in evidence to establish the fact that an acquittal has taken
place and not to ascertain the grounds upon which the acquittal proceeded. 11 In a suit for the recovery of
damages for malicious prosecution, the production of the judgment in the criminal case is not sufficient for the
plaintiff to discharge the burden of proving want of reasonable and probable cause for the prosecution. 12
As regards an investigating officer who files charge-sheet, reasonable and probable cause means whether the
investigation showed existence of facts from which it could be said that there was a case proper to be laid before
the Court. 13 The investigating officer “has a certain measure of discretion and can reject palpably false evidence,
but when the evidence of commission of offence is from apparently credible source, it is not his duty to scrutinise
the same like a Court to find whether the accused is really guilty. His only duty is to find out honestly whether there
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is reasonable and probable cause to bring the accused to a fair trial.” 14 The fact that the police officer acted on
advice of superior officers is relevant to negative want of reasonable cause unless it is proved that the particular
police officer did not himself honestly believe that the plaintiff was guilty of an offence. 15
If the plaintiff was prosecuted on more than one charge, it is sufficient for him to show that there was want of
reasonable and probable cause in respect of some of the charges although there might have been such cause for
others. 16
According to the English law the question whether there was reasonable and probable cause for the defendant's
proceedings is one for the judge on the facts found by the jury. 17 In India, the Judge becomes himself the judge of
the law and the facts, 18 and the balance of authorities is in favour of the view that the question is a mixed one of
law and fact. 19
In the case of Abrath v. North Eastern Railway , 20 one M had recovered from the respondents a large sum as
compensation for personal injuries in respect of a railway collision. On certain information having been given to the
directors of the respondent company they instituted inquiries. The result of those inquiries was laid before counsel
who advised that Dr. Abrath, the appellant, should be prosecuted for conspiring with M to defraud the respondents
by falsely pretending that M had been injured in the collision and by artificially manufacturing symptoms of injury.
The respondents accordingly prosecuted Dr. Abrath, who was acquitted. In an action brought by him against the
respondents for malicious prosecution, it was held that the respondents were not liable as they did take reasonable
care to inform themselves of the true facts and that they honestly believed in the case laid before the Magistrate.
1(E) Malicious intention
The proceedings complained of by the plaintiff must be initiated in a malicious spirit, that is from an indirect and
improper motive, and not in furtherance of justice. 21 Any motive other than that of simply instituting a prosecution
for the purpose of bringing a person to justice is a malicious motive on the part of the person who acts in that way.
22 But a prosecution is not malicious merely because it is inspired by anger; and however wrong-headed a
prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator
of a malicious prosecution. 23 The malice necessary to be established is not malice in law such as may be
assumed from a wrongful act, done intentionally, without just cause or excuse, but malice in fact malus animus —
indicating that the party was actuated either by spite or ill-will towards an individual or by indirect or improper
motives. 24 It is “a wish to injure the party rather than to vindicate the law.” In order to give an objective meaning to
the word “malice” the Court must find out whether the accuser has commenced prosecution for vindication of
justice, e.g., for redress of a public wrong. If he is actuated by this consideration he cannot be said to have any
malice. But if his object to prosecute is to be vindictive, to malign the person before the public, or if he is guided by
purely personal consideration, he should be held to have malice. 25 There cannot be any set of rules or guidelines
for proof of malafides or malice as it depends on its own facts and circumstances. 26
It is not a wrongful act for any person who honestly believes that he has reasonable and probable cause, though he
has not, in fact, to put the criminal law in motion against another, but if to the absence of such reasonable and
probable cause a malicious motive operating upon the mind of such prosecutor is added, that which would have
been a rightful (in the sense of a justifiable) act if done without malice becomes with malice wrongful and
actionable. If when he instituted criminal proceedings the prosecutor knew he had no reasonable ground for the
steps he was taking, the definition of malice given by BAYLEY, J., in Bromage v. Prosser , 27 viz., ‘a wrongful act,
done intentionally, without just cause or excuse,’ would distinctly apply, and no further proof of malice would be
required; but if he really believed he had such reasonable cause, although in fact he had it not, and was actuated
not by such belief alone, but also by personal spite or a desire to bring about the imprisonment of, or other harm to,
the accused, or to accomplish some other sinister object of his own, that personal enmity or sinister motive would
be quite sufficient to establish the malice required by law to complete a cause of action. 28
Malice may be inferred upon proof of absence of honest belief in the accusation and consequent want of
reasonable and probable cause for instituting the prosecution complained of. 29
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But in other cases there must be something more of the nature of an indirect or sinister motive for the prosecution
than the mere absence of reasonable and probable cause. The absence of reasonable and probable cause is not
per se evidence of malice, and a finding that the defendant honestly believed in the case is conclusive against the
plaintiff's right of action. 30 Conversely, the most express malice will not give a cause of action if reasonable and
probable cause existed, 31 nor can absence of the latter be inferred from the existence of malice. 32
The bringing of a charge false to the knowledge of the prosecutor imports in law malice sufficient to support a civil
action. 33 A prosecution, though at the out-set not malicious, may nevertheless become malicious in any of the
stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the
accused, perseveres in the prosecution. 34 But if the defendant has honestly and bona fide instituted the
prosecution, he is not liable, although owing to a defective memory he has forgotten the true facts and has gone on
with the prosecution. 35 Carelessness on the part of the defendant in deciding whether there was reasonable
cause would not amount to malice. If a man is reckless, whether the charge be true or false, that might amount to
malice, but not recklessness in coming to the conclusion that there was reasonable and probable cause. 36 Haste,
recklessness, omission to make reasonable enquiries, antecedent enmity and spirit of revenge are factors which
may be taken into account in giving a finding on existence of malice. 37
For determining malice, the principle to be followed in a suit against Government for damages for malicious
prosecution is that which applies to a Corporation. In respect of a prosecution initiated by an agent with the
principal's authority, express or implied, the malice of the agent will be imputed to the principal. It is on this principle
that a Corporation is liable to an action for malicious prosecution although it has no mind and cannot be guilty of
malice. 38 A Corporation can be held guilty of malice. But the liability of a Corporation for malicious prosecution is
no greater than that of an ordinary individual. 39
Malice is not to be inferred merely from the acquittal of the plaintiff. 40 The plaintiff must prove independently of
acquittal that his prosecution was malicious and without reasonable and probable cause. 41
In England whether there was malice in the defendant is a question of fact for the jury. 42 In India it is a question of
law. 43
1(F) Damage
The damage need not be necessarily pecuniary. According to HOLT, C.J.’s classic analysis there are three sorts of
damage any one of which would be sufficient to support an action for malicious prosecution: (1) the damage to a
man's fame, as where the matter whereof he is accused is scandalous; (2) the damage done to the person, as
where a man is put in danger of losing his life, limb, or liberty; (3) the damage to a man's property, as where he is
forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused. 44 The
damage must also be the reasonable and probable result of the malicious prosecution, and not too remote.
Proceedings in bankruptcy against a trader, 45 or liquidation proceedings against a company 46 ruin the reputation
of the trader or the company, and therefore, an action lies for instituting such proceedings maliciously and without
reasonable and probable cause. Similarly, an action lies for instituting maliciously and without reasonable and
probable cause proceedings for professional misconduct against a legal practitioner under the Legal Practitioners
Act,47 or for prosecution under the Municipal Act. 48 A charge which does not injure the fair fame of the accused,
e.g., a charge of pulling a communication cord of a train in contravention of s. 22 of the Regulation of Railway Act,
1868, and which can result only in a fine can be subject of an action for malicious prosecution of the plaintiff if he is
able to prove some pecuniary damage for example that the expenses incurred by him in his defence were much
more than the cost awarded to him in the criminal case. 49 In contrast a charge of the nature that the plaintiff was
travelling without ticket imputes moral stigma and the plaintiff need not prove any pecuniary damage as damage to
his reputation will sustain his suit for malicious prosecution. 50
1(G) Damages
In an action for malicious prosecution, damages can be claimed under three heads: (1) damage to reputation; (2)
damage to person and (3) damage to property including any legitimate expenses incurred by the plaintiff for
defending himself in the criminal case. 51 Where both the plaintiff and the defendant are actuated by malicious
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motives, nominal damages will be awarded. 52 Malicious prosecution is one of the torts in which aggravated
damages are permissible 53 by taking into consideration motives and conduct of defendant and injury to the
plaintiff. 54 Where reckless allegations were made against the character of a professional lawyer in a criminal
complaint filed against him and the prosecution ended in his favour and a suit for malicious prosecution was filed, it
was held that the Court was entitled to take into consideration aggravation of damages. 55 But exemplary
damages 56 as distinguished from aggravated damages can be allowed only when the prosecution was by the
State or a public servant and the action in prosecuting the plaintiff was oppressive, arbitrary or unconstitutional; or
when the defendant's conduct in prosecuting the plaintiff was calculated to make a profit for himself.
2. MALICIOUS CIVIL PROCEEDINGS
An action will not lie for maliciously and without reasonable and probable cause instituting an ordinary suit. The
reason stated to be is that “such a case does not necessarily and naturally involve damage to the party sued. A civil
action which is false will be dismissed at the hearing. The defendant's reputation will be cleared of any imputations
made against him, and he will be indemnified against his expenses by the award of costs against his opponent. The
law does not award damages for mental anxiety, or for extra costs incurred beyond those imposed on the
unsuccessful party.” 57 Further, section 35A of the Code of Civil Procedure provides for compensatory costs in
respect of false or vexatious claims. But a suit lies, as already seen, 58 for malicious prosecution of bankruptcy 59
or liquidation proceedings 60 which are civil proceedings and which affect the credit and reputation of the party
against whom they are taken. There are other related torts of the same category also known by the names of
malicious legal process and abuse of legal process which are discussed below.
In Gregory v. Portsmouth City Council , 61 the House of Lords was invited to extend the tort of malicious
prosecution to cover malicious disciplinary proceedings and malicious civil proceedings in general. Some American
authorities were cited in support of this extension. The House of Lords, however, declined to extend the tort having
regard to the fact that such an extension is not recognised in other commonwealth countries such as Australia,
Canada and New Zealand and that a number of other torts (e.g. defamation, malicious falsehood, conspiracy,
misfeasance in public office) are capable depending on the circumstances, to give adequate protection and relief.
3. MALICIOUS LEGAL PROCESS
3(A) Nature of
To put into force the process of the law maliciously and without any reasonable and probable cause is wrongful;
and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss for which an
action will lie. 62 This tort of malicious legal process differs from malicious prosecution in that the legal process
taken against the plaintiff is short of prosecution, e.g. when a process is obtained for arrest of the plaintiff or for
attachment of his property. 63 When a warrant for arrest of the plaintiff to compel his appearance as a witness in a
criminal case was obtained maliciously and without any reasonable and probable cause on the allegation supported
by the defendant's own evidence that the plaintiff was evading service of the summons which was earlier issued by
the Court and when in consequence the plaintiff was arrested, kept in custody and later released, the House of
Lords held that the suit for damages was maintainable. 64 The ingredients to be proved are the same as in
malicious prosecution except that damage to person or property must be established. 65 Absence of reasonable
and probable cause for taking legal action in execution or otherwise is some evidence from which malice may be
inferred. 66 Termination of the proceedings taken in favour of the plaintiff in so far as they are capable of
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terminating is essential. But if the defendant has dropped the proceedings it is not necessary for the plaintiff to show
that the proceedings ended in his favour. 67
There are substantial points of distinction between an action for malicious legal process and an action for trespass
to person or property. In the former the plaintiff has to prove absence of reasonable and probable cause and
malice. In an action for trespass it is for the defendant to prove a good cause or excuse and proof of malice is not
necessary. 68
Section 95 of the Code of Civil Procedure gives a summary remedy to a defendant to get compensation where an
arrest or attachment before judgment has been affected or a temporary injunction has been granted—
(1) if such arrest, attachment or injunction was applied for on insufficient grounds, or
(2) if the plaintiff fails in the suit and there was no reasonable or probable ground for instituting the suit. 69 The
defendant has simply to present an application to the Court, and the Court, subject to its pecuniary
jurisdiction can give compensation upto one thousand rupees.
The remedy under the Code is optional, and an injured defendant may file a regular suit against the plaintiff for
compensation if he has not already sought relief under the above section. 70 Thus the above section gives an
alternative remedy in cases of wrongful attachment, and it does not in any way interfere with the principles
regulating suits for damages for tort of malicious legal process. 71 It would, however, be in the interest of an injured
defendant to file a separate suit where the compensation awardable under the Code would be altogether
insufficient. 72
3(B) Malicious Arrest
Malicious arrest is maliciously putting the law in motion to effect the arrest of another, under judicial process,
without reasonable and probable cause. 73 The foundation of an action for malicious arrest is that the party has
obtained an order or authority from a Judge to make an arrest, by knowingly imposing some false statement upon
the Judge, or by stating certain facts as being true within his knowledge, when he knew nothing about them, or by
asserting his belief in the truth of a particular statement when he had no reasonable or probable cause for his belief.
74 This action differs from an action for false imprisonment 75 in that in the latter no judicial process intervenes
before the arrest which is essentially the act of the defendant or a ministerial officer moved by him. An action for
malicious arrest is not sustainable, if the defendant has placed all the facts before the officer having the
discretionary power to order such arrest and when such officer with full knowledge of all the facts, exercised his
discretion and ordered the arrest. 76 A suit to recover damages on account of injuries caused by an arrest, in
accordance with the execution of a decree of a competent Court can be maintained if the process issued for arrest
was later superseded or discharged and the arrest was procured maliciously and without reasonable and probable
cause by the defendant. 77
3(C) Malicious Search
An action lies for maliciously procuring a house search. 78 It has long been recognised to be an actionable wrong
to procure the issue of a search warrant without reasonable and probable cause and with malice. 79
3(D) Malicious Process against Property
Where a person maliciously and without reasonable and probable cause, by means of civil proceedings, procures
execution or distress against the property of another, an action will lie against him for damages. 80 Malicious arrest
of a ship will similarly be an actionable wrong. 81 The person causing the writ to be issued will be liable. 82
A distinction is drawn between acts done without judicial sanction and acts done under judicial sanction improperly
obtained. If goods are seized under a writ or a warrant which authorised the seizure, the seizure is lawful, and no
action will lie in respect of the seizure unless the person complaining can establish a remedy by proving malice and
want of reasonable and probable cause. If, however, the writ or warrant did not authorise the seizure of the goods,
an action would lie for damages occasioned by the wrongful seizure without proof of malice. 83 The action in the
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latter type of cases is really an action for trespass. 84 In England the execution of a decree for money is entrusted
to the sheriff, an officer who is bound to use his own discretion, and is directly responsible to those interested for
the illegal seizure of goods, which do not belong to the judgment-debtor. In India, warrants for attachment of
property are issued on the ex parte application of the creditor, who is bound to specify the property which he
desires to attach, and its estimated value. The attachment is the direct act of the creditor for which he is
immediately responsible. 85 So, a party to a suit is liable, though he acts innocently or mistakenly or inadvertently,
if by his or his agent's or attorney's order the officer of the Court takes the goods of the wrong person, a stranger in
execution. 86 If a person causes an attachment before judgment to be levied carelessly and recklessly and without
sufficient or reasonable ground he will be liable in damages. 87 The proceedings in which the attachment
complained of is taken out should have terminated in favour of the plaintiff or the particular process complained of
should have been superseded or discharged. 88 This is not necessary if from the nature of the proceedings they
are incapable of so terminating. 89
If after having all the facts as to the right of a defendant to particular moveables brought before it, the Court, after
adjudicating on the materials before it, were to order the attachment of specified property or decide as to the right of
such attachment, the order would be the act of the Court, and if the decree-holder had acted bona fide in bringing
the facts fully before the Court, he would not be liable. 90 The judgment-creditor is not responsible for the mistake
or misconduct of the officer, unless he or his servants have personally interfered and directed the action of the
officer. 91
It is an actionable wrong to issue execution against the property of a judgmentdebtor, after the judgment-debt has
been paid, 92 or to get an injunction wrongfully issued. 93
Proof of malice is not necessary when the property of a stranger, not a party to the suit, is taken in execution. 94
Where the plaintiff bringing a suit for malicious legal process is a party to a suit, proof of malice is necessary. 95
The plaintiff must prove special damage. 96 As explained by the Supreme Court where the property belonging to a
person not a party to the suit is wrongly attached the action brought by such a person for damages is really an
action grounded on trespass where the plaintiff is not required to prove malice, absence of reasonable or probable
cause or special damage and it is for the defendant to prove a good cause or excuse. In contrast where the act of
attachment complained of was done under judicial sanction, though at the instance of a party, the remedy is an
action for malicious judicial process where the plaintiff has to prove malice and absence of reasonable or probable
cause on the part of the defendant. 1
If property wrongfully attached is sold, the owner of the property so sold is entitled to sue either for the restoration of
the same specifically or for damages. 2 The rightful owner may follow the property in the hands of the purchaser
who purchased it at his own risk and peril. 3
The claim of a person for damages for wrongful attachment of property can fall under two heads—(1) trespass and
(2) malicious legal process. Where property belonging to a person, not a party to the suit, is wrongly attached, the
action is really one grounded on trespass. But where the act of attachment complained of was done under judicial
sanction, though at the instance of a party, the remedy is an action for malicious legal process. In the case of
malicious legal process of Court, the plaintiff has to prove absence of probable and reasonable cause. In cases of
trespass the plaintiff has only to prove the trespass and it is for the defendant to prove a good cause or excuse. In
the former case plaintiff has to prove malice on the part of the defendant while in the latter case it is not necessary.
4
Certain unthreshed rice belonging to the plaintiff was wrongfully attached by the defendants under a money decree
obtained by them against a third party. The rice, while in the custody of a bailiff, was clandestinely threshed and
carried off by theives, who left the straw. In a suit brought by the plaintiff to recover the value of unthreshed rice
from the defendants, it was held that the defendants were liable. The theft might have rendered the defendants
unable to restore the rice in specie, but could not purge, and was no satisfaction of, the previous trespass which
had rendered the defendants liable for the full value of the rice. 5
3(E) Procuring erroneous decision of Court

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No action will lie against any person for procuring an erroneous decision of a Court of Justice. This is so, even
though the Court has no jurisdiction in the matter and although its judgment or order is for that or any other reason
invalid. A Court of Justice is not the agent or servant of the litigant who sets it in motion so as to make that litigant
responsible for the errors of law or fact which the Court commits. Every party is entitled to rely absolutely on the
presumption that the Court will observe the limits of its own jurisdiction and decide correctly on the facts and law.
Accordingly, a suit to recover damages suffered by the plaintiff by reason of his land having been kept for a year
under attachment under an erroneous order under s. 146 of the Criminal Procedure Code will not lie against the
defendant upon whose complaint the inquiry leading up to the order was initiated.6 No action will lie against any
person for issuing execution or otherwise acting in pursuance of a judgment or order of a Court of Justice, even
though it is erroneous. A valid order, however, erroneous in law or fact, is a sufficient justification for any act done in
pursuance of it. 7 The remedy of the aggrieved party is to appeal and not to bring an action for damages. But if the
proceeding or process causing a person injury terminated in his favour, that person can institute an action of
malicious prosecution or malicious legal process if the conditions for these actions as mentioned above are
satisfied.
3(F) Damages
In awarding damages for malicious arrest the costs and expenses incurred by the plaintiff by reason of the arrest
and in obtaining his discharge must be taken into consideration.
In the case of loss of goods arising from wrongful attachment the measure of damages will be the value of the
goods at the time of the wrongful attachment. 8 The litigation and delay and also any depreciation of the goods by
an intermediate fall in the market, between attachment and sale, are the natural and necessary consequences of
the unlawful act for which damages are recoverable. 9 If the defendant's act was without a probable cause and
evinced a malicious motive on his part, damages should be in the nature of penalty as well as of compensation. 10
4. ABUSE OF LEGAL PROCESS
Apart from the malicious prosecution and malicious legal process, there is yet another tort known as abuse of legal
process which has slender authority. The English authority usually cited in its support is Grainger v. Hill . 11 In this
case, the defendant was held liable for getting the plaintiff arrested apparently for nonpayment of a debt but in fact
to coerce him illegally to surrender the register of a vessel without which the vessel could not have been taken to
sea. In this tort, the legal process in its proper form is used to accomplish some improper purpose for which it was
not designed. In an action for this tort, it is not necessary to prove want of reasonable and probable cause or
termination of the proceeding in the plaintiff's favour. 12 However, the plaintiff alleging such a tort must show that
the predominant purpose of the defendant in using the legal process has been one other than that for which it was
designed and as a result it has caused him damage. 13 The adducing by a person of false evidence and the
submission of a false case for the purpose of sustaining his own claim or defeating the other party's claim does not
give rise to the tort of abuse of the process of court. 14 In Filmistan Distributors case 15 the defendants secured
an interim injunction apparently to save themselves from loss but used it to cause loss to the plaintiffs and it was
held that as the injunction was used for an improper purpose the tort of abuse of legal process was made out and it
was not necessary to prove malice or want of reasonable and probable cause. But if the real object or purpose is
within the scope of the legal process set in motion, the tort of abuse of process will not be made act. Thus, when a
landlord brought another suit for eviction of his tenant on the same grounds on which his earlier suit was dismissed,
it could not be said that the second suit constituted abuse of legal process, even though there was no fourdation for
the second suit, for the suit was not for any collateral purpose not within the scope of the suit. 16
5. MISFEASANCE IN PUBLIC OFFICE

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It has already been seen that even when an administrative order is successfully challenged as invalid or void it does
not necessarily follow that the officer or authority passing the order can be sued in tort. 17 The liability in tort will
arise only if conditions for liability of the tort of misfeasance in public office are satisfied. 18 Though limits of the tort
of misfeasance in public office have been considered only in a few English cases, there is no doubt that the tort is
well established. 19 If the public officer acts with malice, in the sense of an intent to injure, and damage results the
liability arises and the officer can be sued for the tort of misfeasance in public office. 20 The tort will also be
committed, in the absence of malice, if the public officer knew both that what he was doing was invalid and that it
will injure the plaintiff. 21 The tort is capable of being committed by a corporate body e.g., a city council. 22 The
act complained of must be one which is done in the exercise or purported exercise of some power with which the
officer or authority was clothed. 23 But it is not necessary that the power exercised must have a statutory origin
and a malicious exercise of a power under a contract may give rise to the tort; the reason being that whatever may
be the source of the power, a public officer or authority must act in public good and the essence of the tort is that
some one holding public office has misconducted himself by purporting to exercise powers, which were conferred
on him for the benefit of the public, either with intent to injure another or with the knowledge that he was acting ultra
vires . 24 The legal propositions set out above were not dissented by the House of Lords 25 though the Court of
Appeal’s decision in Swansea City Council's case 26 was overruled on facts. Indeed the House of Lords approved
that a local authority can be sued for misfeasance in public office even when it is exercising its power under a
contract e.g. in the capacity of a landlord and it was observed : “Generally speaking if a plaintiff alleges and proves
that a majority of the councillors present, having voted for a resolution, did so with the object of damaging the
plaintiff, he thereby proves against the council misfeasance in public office.” 27
The cases were reviewed by CLARKE, J., in Three Rivers District Council v. Bank of England , 28 and the relevant
features of the tort of misfeasance in public office were summarised in the following six propositions:
“(1) The tort of misfeasance in public office is concerned with a deliberate and dishonest wrongful abuse of the
powers given to a public officer. It is not to be equated with torts based on an intention to injure, although,
as suggested by the majority in Northern Territory v. Mengel , (1995) 69 ALJR 527, it has some similarities
to them.
(2) Malice, in the sense of an intention to injure the plaintiff or a person in a class of which the plaintiff is a
member, and knowledge by the officer both that he has no power to do the act complained of and that the
act will probably injure the plaintiff or a person in a class of which the plaintiff is a member are alternative,
not cumulative, ingredients of the tort. To act with such knowledge is to act in a sufficient sense
maliciously: see Mengel 69 ALJR 527 at 554 per DEANE J.
(3) For the purposes of the requirements that the officer knows that he has no power to do the act complained
of, it is sufficient that the officer has actual knowledge that the act was unlawful or, in circumstances in
which he believes or suspects that the act is beyond his powers, that he does not ascertain whether or not
that is so or fails to take such steps as would be taken by an honest and reasonable man to ascertain the
true position.
(4) For the purposes of the requirement that the officer knows that his act will probably injure the plaintiff or a
person in a class of which the plaintiff is a member it is sufficient if the officer has actual knowledge that his
act will probably damage the plaintiff or such a person or, in circumstance in which he believes or suspects
that his act will probably damage the plaintiff or such a person, if he does not ascertain whether that is so
or not or if he fails to make such inquiries as an honest and reasonable man would make as to the
probability of such damage.
(5) If the states of mind in (3) and (4) do not amount to actual knowledge, they amount to recklessness which is
sufficient to support liability under the second limb of the tort.
(6) Where a plaintiff establishes (i) that the defendant intended to injure the plaintiff or a person in a class of
which the plaintiff is a member (limb one) or that the defendant knew that he had no power to do what he
did and that the plaintiff or a person in a class of which the plaintiff is a member would probably suffer loss
Page 14 of 36
or damage (limb two) and (ii) that the plaintiff has suffered loss as a result, the plaintiff has a sufficient right
or interest to maintain an action for misfeasance in public office at common law. The plaintiff must of
course also show that the defendant was a public officer or entity and that his loss was caused by the
wrongful act.” 29
This exposition of the law regarding the tort of misfeasance was appreciated and approved by the House of Lords in
appeal. 30 As is pointed out later, 31 the above formulation by CLARKE, J, was accepted by the Supreme Court
even before it was examined by the House of Lords. As explained by the House of Lords 32 the tort has two forms
viz. , (1) cases of ‘targeted malice’ i.e. cases where a public power was exercised for an improper purpose of
injuring a person or persons; and (2) cases of ‘untargeted malice’ i.e. , cases where a public officer subjectively
acted in the knowledge that he had no power to do the act complained of and that it would probably injure the
claimant. In the second category of cases the public officer's subjective reckless indifference to the outcome both
as to illegality of his act and as to the probability of harm to the claimant was sufficient to establish the tort. The
argument that it would be sufficient to show mere objective foreseeability of harm and subjective knowledge of
possibility of harm or subjective reckless indifference to the outcome was rejected by the House of Lords. In another
round of appeal in the same case, affirming the elements of tort as stated in the earlier decision the House of Lords
said that in a claim based on the tort of misfeasance “a plaintiff must prove: (1) an abuse of powers given to a public
officer; (2) that the abuse was constituted by a deliberate act or deliberate omission by the public officer with
knowledge that the act or omission was wrongful or with recklessness as to whether or not the act or omission was
wrongful; (3) that the public officer acted in bad faith; and (4) that the public officer knew that his act or omission
would probably injure the plaintiff or was reckless as to the risk of injury to the plaintiff. In addition the plaintiff must
prove that the act or omission caused him loss.” 33
It is not a free standing requirement of the tort that the harm would be caused to an identifiable individual or an
identifiable group of individuals and it would be a sufficient pleading that the harm in contemplation was either to a
known victim or victims or to one or more victims who would be unknown unless and until the expected harm
eventuated. 34
The tort of misfeasance in public office is not a tort actionable per se. Damage is an essential ingredient of the tort
as recently reaffirmed by the House of Lords in Watkins v. Secretary of State for the Home Department. 35
Damage will mean financial loss or physical or mental injury which is described as ‘material damage’ an expression
understood to include recognized psychiatric illness but not distress, injured feelings, indignation or annoyance. 36
In this case the claimant was a prisoner. The confidentiality of his legal correspondence was protected under the
Prison Rules. He claimed damages for misfeasance in public office against the prison officers, who had opened his
correspondence in breach of the Prison Rules and the Secretary of the State. The claimant was unable to prove
any material damage resulting from the action of the prison officers and the House of Lords held him not entitled to
damages. It was pointed out that the lack of remedy in tort did not mean that there was no other remedy. The action
of prison governor was amenable to judicial review and the prison officers were amenable to disciplinary
proceedings. 37 The claimant may also in such a case base his claim under the Human Rights Act and claim
compensation but not exemplary damages in accordance with the practice of Strasbourgh court if the evidence
showed an egregious and deliberate abuse of power by public officers. 38
The tort of misfeasance in public office has been accepted by the Supreme Court and it has been held that when an
officer of the government or a public authority acts maliciously or oppressively causing harassment and agony to
the plaintiff, the officer is personally liable for payment of compensation. 39 It has been reiterated that a
Government officer may be held liable in tort; if in the discharge of his official administrative duties, he acts
maliciously or with oblique motive or mala fide . 40
Though in India also damage to the claimant may be regarded as a necessary ingredient of the tort of misfeasance
in public office but a case like Watkins in India may have succeeded for Indian courts allow damages for mental
agony which may not amount to psychiatric injury under the English Law. 41
In Common Cause, A Registered Society v. Union of India 42 a two judge bench of the Supreme Court in a public
interest petition under Article 32 of the Constitution set aside the allotment of petrol pumps to fifteen persons made
Page 15 of 36
by a central minister from the discretionary quota on the ground that the discretion was mala fide exercised. The
Supreme Court further issued notice to the minister Capt. Sharma to show cause why he should not be held
personally liable to pay damages for his mala fide action on the ground that his action amounted to the tort of
misfeasance in public office. Elaborating the nature and ambit of this tort the Court observed: “public servants may
be liable in damages for malicious, deliberate or injurious wrong doing. According to Wade ‘there is thus a tort
which has been called misfeasance in public office and which includes malicious abuse of power, deliberate
maladministration, and perhaps also other unlawful acts causing injury. With the change in socioeconomic outlook,
the public servants are being entrusted with more and more discretionary powers even in the field of distribution of
government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either
by an act of omission or commission and the consequence of that is injury to an individual or loss of public property,
an action may be maintained against such public servant. No public servant can say ‘you may set aside an order on
the ground of mala fide but you cannot hold me personally liable’. No public servant can arrogate to himself the
power to act in a manner which is arbitrary”. 43 The Court also elaborated as to what is ‘Government wealth’.
According to the Court it will include “allotment of plots, houses, petrol pumps, gas agencies, mineral leases
contracts, quotas and licences etc. ” 44 in other words benefits and largesses in various forms. The Court also
stressed that in distribution of these benefits the Government must evolve a transparent and objective criteria/
procedure “so that the choice among the members belonging to the same class or category is based on reason, fair
play and non-arbitrariness.” 45 After cause was shown by the minister, he was ordered to pay Rs. 50 lacs as
exemplary damages to the Government Exchequer on the following reasoning: “Since the property with which Capt.
Sharma was dealing was public property, the Government which is by the people has to be compensated.” 46 The
Court held that exemplary damages can be awarded for oppressive, arbitrary and unconstitutional action by the
servants of the Government. 47
In another case also decided by a two judge bench of the Supreme Court where another central minister was found
to have arbitrarily allotted 52 shops/stalls similar view was taken. 48 She was found guilty of misfeasance in public
office and was asked to show cause why exemplary damages be not awarded against her. The Court was
conscious that in cases where damages were allowed in tort for misfeasance in office there was injury to a third
party who sued for damages but the Court observed: “The fact that there is no injury to a third person in the present
case is not enough to make the aforesaid principles nonapplicable inasmuch as there was injury to the high
principle in public law that a public functionary has to use the power for bona fide purpose and in a transparent
manner”. 49 After cause was shown the minister was directed to pay sixty lacs as exemplary damages to the
Government Exchequer on the same reasoning as in the earlier case that since the property with which she was
dealing was public property, the Government which is by the people has to be compensated. 50
A review petition was filed in Capt. Sharma's case 51 which was decided by a three judge bench of the Supreme
Court. 52 The court agreed that the conduct of the minister in making allotment of petrol outlets was atrocious and
wholly unjustified but the court did not agree that the conditions relevant for the tort of misfeasance in public office
were satisfied and that Capt. Sharma could be made liable to pay damages to the state. After referring to the
relevant case law the court quoted with approval the six propositions summarised by CLARKE J., in the case of
Three Rivers District Council v. Bank of England. 53 The court noticed that the object of allotments from
discretionary quota was to provide immediate relief in cases of personal hardship and allotments were made as and
when an application was received without inviting applications as that would have been contrary to the concept of
discretionary quota. Therefore, the court said that “Sharma cannot be said to have made the allotment in favour of
one out of malice towards the other as there was none else to contest or compete with the claim of the person who
made the application for allotment,” 54 nor could it be said that Sharma “made the allotment of petrol outlet in
favour of the applicant with the knowledge that such allotment was likely to injure the interest of any other person.”
55 The court also pointed out that the common cause a registered society, the petitioner before the Supreme Court
under Article 32, was not one of the applicants for allotment of petrol outlets and its interest was in no way injured,
therefore, a finding of misfeasance in public office could not be recorded in proceedings, whether in the nature of a
suit or a petition under Article 32, commenced by the common cause. 56 The court further said that having regard
to the ingredients of the tort of misfeasance in public office “there has to be an identifiable plaintiff or claimant
whose interest was damaged by the public officer maliciously or with the knowledge that the impugned action was
likely to injure him” and “unless there is an identifiable plaintiff, there cannot be any order for compensation or
Page 16 of 36
damages to redress the loss caused to that plaintiff.” 57 The Court also held that the State itself cannot claim the
right of being compensated in damages against its officers on the ground that they had contravened or violated the
fundamental rights of a citizen. 58 The court also negatived the theory that the minister was a trustee and could be
made liable for the offence of breach of trust. The court held that a minister was a trustee in the philosophical sense
and not in the legal sense and that the power to allot petrol pumps and that too under discretionary quota was not
that kind of property which could be subject of entrustment or dominion for purposes of the offence of criminal
breach of trust. 59
Subsequently a review petition in the case of Shivsagar Tiwari v. Union of India , 60 came up before another bench
of three judges and the award of damages was set aside on another ground. 61
1
Abrath v. The North Eastern Ry. Co ., (1886) 11 App Cas 247 : 11 QBD 440.
2
Johnson v. Emerson , (1871) LR 6 Ex 329; Chapman v. Pickersgill , (1762) 2 Wils 145; Metropolitan Bank
v. Pooley , (1885) 10 App Cas 210 : 53 LT 163; Gregory v. Portsmouth City Council, (2000) 1 All ER 560, p.
566 : (2000) 1 AC 419 : (2000) 2 WLR 306 (HL).
3
Quartz Hill Gold Mining Company v. Eyre, (1883) 11 QBD 674; Mohammad Amin v. Jogendra Kumar ,
(1947) 74 IA 193 : AIR 1947 PC 108; Gregory v. Portsmouth City Council, supra.
4
Glinski v. Mciver, (1962) AC 726 (HL) (741) : (1962) 2 WLR 832 : 106 SJ 261.
5
Mohammad Amin v. Jogendra Kumar ; AIR 1947 PC 108.

6
Mohammad Amin v. Jogendra Kumar , AIR 1947 PC 108; Braja Sunder Debi v. Bamder Das , AIR 1944 PC
1; State of Bihar v. Rameshwar Prasad Baidya , AIR 1980 Pat 267 ; T. Subramaya Bhatta v. V.A. Krishna
Bhatt , AIR 1978 Ker 111 (FB); Kottan Thazhathu Veettil Krishnan v. Palare Thaivalappil Govindan , AIR
1989 Kerala 83 . Smt. Sova Rani Dutt v. Debabrata Dutt , AIR 1991 Cal 186 [LNIND 1989 CAL 340], p.
189; R.K. Soni v. S. Singhara Singh , AIR 1992 Delhi 264 [LNIND 1991 DEL 460]; Kamta Prasad Gupta v.
The National Building Construction Corpn. Ltd ., AIR 1992 Delhi 275 [LNIND 1991 DEL 422], p. 277; Amar
Singh v. Smt. Bhagwati, AIR 2001 Raj 14; Martin v. Watson , (1995) 3 All ER 559 (HL). p. 562; Gregory v.
Portsmouth City Council, (2000) 1 All ER 560, p. 565 (HL).
7
Abrath v. North Eastern Ry. Co. supra; Lister v. Perryman , (1870) LR 4 HL 521; Baboo Gunnesh Dutt
Singh v. Mugneeram Chowdhry , (1872) 11 Beng LR 321, (PC); Harish Chunder Neogy v. Nishi Kanta
Banerjee , (1901) ILR 28 Cal 591; Syama Charan Karamokar v. Jhatoo Haldar , (1901) 6 CWN 298; P.M.
Mody v. Queen Insurance Co ., (1900) 2 Bom LR 938, ILR 25 Bom 332 (PC); Dhanjishaw Karani v.
Bombay Municipality , (1944) 47 Bom LR 304; ILR 1945 Bom 547; Dunne v. Legge , (1866) 1 Agra HC 38;
Umrao v. Jaisukh , (1862) 2 AWN 83; Ganesh Prasad v. Mahip Rai , (1885) 5 AWN 175; Swami Nayudu v.
Subramania , (1864) 2 MHC 158; Moonee v. Municipal Commissioner of Madras , (1875) 8 MHC 151;
Minakshisundrum Pillai v. Ayyathorai , (1894) ILR 18 Mad 136; Indar Bahadur Singh v. Sukhdeo Prasad ,
(1932) 9 OWN 1067; Sheikh Mehtab v. Balaji , ILR (1946) Nag 358; Tinsukia Municipal Board v. Bankim
Chandra Ghose , (1950) ILR 2 Assam 181; Laxmichand v. Dominion of India , ILR 1955 Nag 872;
Ramadass v. Sanhasi Chettiar, (1958) 1 MLJ 79 [LNIND 1957 MAD 287] ; C. Ambalam v. Jagannatha,
1959 Cri LJ 328 [LNIND 1958 MAD 33].
Page 17 of 36
Saville v. Robert, 1 Ld Raym 374 : 5 Mod 394. Quartz Hill Gold Mining Company v. Eyre, supra; Ucho
Singh v. Nageshwar Pd. Singh , ILR 1962 Pat 369 : AIR 1962 Pat 478 .
9
Pannalal v. Shrikrishna , ILR 1955 MB 189.

10
Sheikh Mehtab v. Balaji , ILR 1946 Nag 358.

11
Fitzjohn v. Mackinder, (1861) 9 CBNS 605, followed in Musa Yakum v. Manilal , (1904) 7 Bom LR 20 :
(1905) ILR 29 Bom 368.
12
Periya Goundan v. Kuppa Goundan , (1919) ILR 42 Mad 880; Shanmugha Udayar v. Kandasami Asary ,
(1920) 12 Mad LW 170, dissenting from Naranga Row v. Muthaya Pillai , (1902) ILR 26 Mad 362; Narain
Pande v. Goya Rai, (1937) 19 PLT 398; Chellu v. Municipal Council, Palghat , (1954) 68 MLW 317; T.
Subramaniya Bhatt v. A. Krishna Bhatt , AIR 1978 Ker 111 .
13
Cohen v. Morgan , (1825) 6 D & R 8; Dubois v. Keats , (1840) 11 A & E 329. See, Jogadamba Prasad v.
Raghunandan Lal, (1920) 1 PLT 422; Rajagopala Nayagar v. Spencer & Co. Ltd ., (1920) 12 MLW 87;
Chatra Serampore Co-operative Credit Society v. Becha Ram , (1939) ILR 1 Cal 123; Issardas v.
Assiudomal , ILR 1940 Karachi 230.
14
Balbhaddar v. Badrisah , AIR 1926 PC 46.

15
Gaya Prasad Tewari v. Bhagat Singh , (1908) 36 IA 189 (192) : Bom LR 1080 : (1908) ILR 30 All 525 (PC).
See further Nagabhushanam v. Venkataratanam, (1910) 8 MLT 242; Bandi v. Ramadin , (1909) 6 ALJR
516; Raghubar Dayal v. Kallu , (1940) ALJR 231; Hari Charan Sant v. Kailash Chandra Bhuyan , (1908)
ILR 36 Cal 278; In re, Sanjevi Reddy , (1911) 1 MWN 149; Manickam Mudaliar v. Muniswami Naidu ,
(1915) MWN 911 : 29 MLJ 694; Jagnarain Dubey v. Bidapat Dubey, (1922) 4 PLT 202; Radha Kishan v.
Kedar Nath , (1924) 22 ALJR 761; Nagendra Nath Ray v. Basanta Das Bairagaya , (1929) ILR 57 Cal 25;
Gajraj v. Chandrika Prashad , (1928) 5 OWN 1039; N.S. Iyer v. S.A.S.W.R. Chettyar , (1932) ILR 10 Ran
282; Hirday Narain Dhaon v. Har Prasad , (1948) ILR 23 Luck 253; Krishnarao v. Firm Radhakishan
Ramsahai , ILR 1956 Nag 236; Chandra Reddy v. Rami Reddy, (1954) 2 MLJ 189, (1954) ALT 59, (1955)
Cr LJ 1313; Pannalal v. Shrikrishna , ILR 1955 MB 189; Lakshmojirao v. Venkatappaiah , AIR 1966 AP 292
[LNIND 1965 AP 52].
16
Gaya Prashad Tewari v. Bhagat Singh , (1908) 35 IA 189 : 10 Bom LR 1080 (PC). See, Dudhnath Kandu v.
Mathura Prasad , (1902) ILR 24 All 317; Venkatappayya v. Ramakrishnamma , (1931) 34 MLW 898. Where
the defendants conspired to prosecute the plaintiff and in furtherance of their design defendant No. 1,
figured as the complainant in a cognizable offence of which information was lodged by him to the police and
the latter prosecuted the plaintiff on the faith of such information, it was held that the defendant prosecuted
the plaintiff; Mohammad Sharif v. Nasir Ali , (1930) ILR 53 All 44.
17
Page 18 of 36
Balbhaddar v. Badrisah , AIR 1926 PC 46; Girja Prasad Sharma v. Umashankar Pathak , AIR 1973 MP 79
[LNIND 1972 MP 118]. But if the defendant merely gives information of the offence naming the plaintiff
believing the information to be true, he is not liable. See, Pannalal v. Srikrishna , AIR 1955 MB 124 . Amar
Singh v. Smt. Bhagwati, AIR 2001 Raj 14 p. 19.
18
Martin v. Watson , (1995) 3 All ER 559 (HL), pp. 567, 568. Distinguished in Mahon v. Rahn, (2000) 4 All ER
41 (CA) (The position may be different where prosecuting authority receives evidence from a variety of
sources and exercises his own discretion).
19
Girja Prasad Sharma v. Umashankar Pathak , AIR 1973 MP 79 [LNIND 1972 MP 118].
20
Evans v. London Hospital Medical College , (1981) 1 All ER 715 (718).

21
Ibid . If proceedings terminate before police authorities, there is no prosecution. Bolandanda Pemmayy v.
Ayaradora , AIR 1966 Mysore 13 ; Braja Sunder Deb v. Bamderdas , AIR 1944 PC 1.
22
Mohamed Amin v. Jogendra Kumar , (1947) 49 Bom LR 584 : 74 IA 193, (1947) AC 322, (1948) ILR 1 Cal
256; Radhu Naik v. Dhadi Sahu , ILR 1952 Cut 633.
23
Ahmedbhai v. Framji , (1903) 5 Bom LR 940; ILR 28 Bom 226; Maung Myo v. Maung Kywet E ., (1918) 3
UBR (1917-1920) 88.
The former Chief Court of Oudh had adopted the view of the Bombay High Court: Gur Saran Das v. Israr
Haidar , (1927) 1 Luck C 492.
24
Dattatraya Pandurang v. Hari Keshav , (1948) 50 Bom LR 622.

25
De Rozario v. Gulab Chand Anundjee , (1910) ILR 37 Cal 358, following Yates v. The Queen, (1885) 14
QBD 648; Golapjan v. Bholanath , (1911) ILR 38 Cal 880; Nagendra Nath Ray v. Basanta Das Bairagya ,
(1929) ILR 57 Cal 25, 26. The former Chief Court of the Punjab adopted this view: Godha Ram v. Devi Das
, (1914) PR No. 1 of 1915.
26
Sheikh Meeran Sahib v. Ratnavelu Mudali , (1912) ILR 37 Mad 181. Sanjivi Reddy v. Koneri Reddi , (1925)
ILR 49 Mad 315; Arunachella Mudaliar v. Chinnamunusamy Chetty , (1926) MWN 527; Vettappa Kone v.
Muthu Karuppan Servai, (1941) 1 MLJ 200 [LNIND 1940 MAD 381] : (1941) MWN 226.
27
Rama Jena v. Gadadhar , AIR 1961 Orissa 118 ; ILR 1960 Cut 650. Mere complaint not followed by issue
of process or notice, does not amount to prosecution and if the person complained against voluntarily
incurs the risk in attending the inquiry arising out of the complaint, the complainant is not liable for the
consequence on the ground of Volenti non fit injuria .
28
Page 19 of 36
De Rozario v. Gulab Chand Anundjee , (1910) ILR 37 Cal 358.

29
Ramesh Chandra v. Brojendra Nath , (1949) 54 CWN 135. See also Nagendra Kumar v. Etwari Sahu , AIR
1958 Pat 329 ; ILR 36 Pat 786.
30
Zahiruddin Mohammad v. Budhi Bibi , (1933) ILR 12 Pat 292.

31
Azmat Ali v. Qurban Ahmad , (1920) 18 ALJR 204.

32
Mohammad Amin v. Jogendra Kumar , (1947) 74 IA 193.

33
Babulal v. Ghasiram, 1970 MPWR 845 : 1970 MPLJ 810 : 1970 Jab LJ 1007 : ILR 1970 MP 980. (G.P.
SINGH J.) See further, Rameshchandra v. Brajendranath , AIR 1950 Cal 259 [LNIND 1949 CAL 14].
34
Jai Pande v. Jaldhari Rout , (1917) PLW 98.

35
Yates v. The Queen, (1885) 14 QBD 648, 657.

36
See, cases in Note 25, supra .

37
Babulal v. Ghasiram, 1970 MPWR 845 : 1970 MPLJ 810 : 1970 Jab LJ 1007 : ILR 1970 MP 980.
38
Casey v. Automobiles Renault Canada Ltd ., (1966) 54 DLR (2d) 600.

39
Kandasami Asari v. Subramania Pillai, (1903) 13 MLJ 370 [LNIND 1902 MAD 138].
40
Narayana Mudali v. Kalathi Mudali, (1939) 2 MLJ 296 [LNIND 1938 MAD 180] : 49 MLW 664 : (1939) MWN
593.
41
Akkulaiya v. Venkataswamy , ILR 1950 Mad 838.

42
C.H. Crowdy v. L.O. Reilly , (1912) 17 CWN 554 : 17 CLJ 105; Bishun Pershad Narain Singh v. Phulman
Singh , (1914) 19 CWN 935; Bhanwar Singh v. Banji , (1951) ILR 1 [LNIND 1951 RAJ 219] Raj 78.
43
Dharam Nath v. Muhammad Umar Khan , ILR 1939 All 424.

Page 20 of 36
44
Narendra Nath De v. Jyotish Chandra Pal , (1922) ILR 49 Cal 1035; Rabindra Nath Das v. Jogendra Nath
Deb , (1928) ILR 56 Cal 432; Nagarmull Chaudhuri v. Jhabarmull Sureka , (1933) ILR 60 Cal 1022.
45
Rabindra Nath Das v. Jogendra Nath Deb , (1928) ILR 56 Cal 432.
46
Muhammed Niaz Khan v. Jairam , (1919) 17 ALJR 776.

47
Fakir Chand v. Khushi Ram, (1933) 34 PLR 931.

48
Jagdeo v. Dwarka , (1946) ILR 36 Pat 68.

49
Babu Ram v. Nityanand Mathur , ILR 1939 All 224.

50
Municipal Board, Agra v. Mangli Lal , ILR 1950 All 1310.

51
S.T. Sahib v. Hasan Ghani , AIR 1957 Mad 646 [LNIND 1956 MAD 230].
52
Chellu v. Municipal Council, Palghat , (1954) 68 Mad LW 317.

53
Berry v. British Transport Commissioner, (1962) 1 QB 306 : (1961) 3 WLR 450.

54
See, title 1(F)—Damage, p. 353.
55
Osumanyawa Yaw Ewna v. Nana Sur Ofori Atta , AIR 1930 PC 260.
56
PER CROMPTON, J., in Castrique v. Behrens , (1861) 3 E & E 709, 721; Gilding v. Eyre, (1861) 10 CBNS
592; Basebe v. Mathews , (1867) LR 2 CP 684, 688; Balbhaddar Singh v. Badri Sah , (1926) 28 Bom LR
921; (1926) ILR 1 Luck 215 (PC) : AIR 1926 PC 46; U Soe v. Moung Ngwe Tha , (1927) ILR 5 Ran 705.
See, to the same effect, Gopalakrishna Kudwa v. Bangle Narayana Kamthy , (1918) MWN 454 : 34 MLJ
517; Moung The Hla v. Makhlas, (1915) 9 BLT 48; Partap Singh v. Hari Singh, (1928) 29 PLR 366; N.S.
Iyer v. S.A.S.M.R. Chettyar , (1932) ILR 10 Ran 282.
57
See, text and notes 59 to 64, post .

58
Page 21 of 36
Balbhaddar Singh v. Badrisah , (1926) ILR 1 Luck 215 (PC) : AIR 1926 PC 46; Issardas v. Assudomal , ILR
(1940) Karachi 230; Taharat Karim v. Abdul Khaliq, (1939) PWN 167 ; Ucho Singh v. Nageshwar Prasad ,
AIR 1962 Pat 478 . See also , note 56, ante .
59
SALMOND AND HEUSTON, Law of Torts, 18th ed., p. 396.
60
Watkins v. Lee , (1839) 5 M & W 270.

61
Wicks v. Fentham , (1791) 4 TR 247; Balbhaddar Singh v. Badri Sah , (1926) ILR 1 Luck, 215 : 28 Bom LR
921 (PC) : AIR 1926 PC 46; Mata Prasad v. Secretary of State for India in Council , (1929) ILR 5 Luck 157.
62
Venu v. Coorya Narayan , (1881) ILR 6 Bom 376.

63
Johnson v. Emerson , (1871) LR 6 Ex. 329 (394); Wicks v. Fentham, sup .

64
State of Bihar v. Rameshwar Prasad Baidya , AIR 1980 Pat 267 .

65
Nagarmull Choudhuri v. Jhabarmull Sureka , (1933) ILR 60 Cal 1022.

66
Venkataramiah v. Janapaiyya, (1950) 1 MLJ 383.

67
Herniman v. Smith, (1938) AC 305 : (1938) 1 All ER 1; Berry v. B.T.C., (1962) 1 QB 306 : (1961) 3 WLR
450.
68
Baoler v. Holder, (1887) 3 TLR 546 : 51 JP 277.

69
Everett v. Ribbands, (1952) 2 QB 198 : (1958) 1 TLR 933 : 96 SJ 229.

70
Chhaganlal v. Thana Municipality , (1931) 34 Bom LR 143 : ILR 56 Bom 135.

71
Hicks v. Faulkner, (1878) 8 QBD 167 (171) : 30 WR 545; Lister v. Perryman , (1870) LR 4 HL 521;
Herniman v. Smith, (1938) AC 305; Bhim Sen v. Sita Ram , (1902) ILR 24 All 363; Shama Bibee v.
Chairman of Baranagore Municipality, (1910) 12 CLJ 410 ; Chatra Serampore Cooperative Credit Society v.
Becha Ram Sarkar , 1939 ILR 1 Cal 123; Ma Aw v. Maung San Thein , (1899) 6 Burma LR 153 ; Vogiazis
v. Poppademiriou, (1912) 6 BLT 59; Sitaram v. Budharam, (1952) NLJ 183 ; Baldeo Singh v. Pyarelal , ILR
1955 MB 137; Ram Nath v. Bashir-ud-Din , ILR 1954 Punj 8. See further : Daulat Ram Sud v. Kamaleswar
Dutt , 1971 ILR 2 Cal 308; Mohan Lal v. Diwan Laxman Singh , 1971 MPLJ 266; Brijlal & Anr v. Prem
Chand , AIR 1974 Raj 124; Nandlal v. The State of Rajasthan and Others , 1970 ILR 20 Raj 292; Major
Page 22 of 36
Gian Singh v. S.P. Batra , AIR 1973 P&H 400; Kottan Thazhathu Velthil Krishnan v. Palari Thaivalappil
Govindan , AIR 1989 Ker 83 [LNIND 1988 KER 138], p. 85.
72
PER LORD DEVLIN in Glinski v. Mciver, (1962) AC 726 : (1962) 1 All ER 696 : 106 SJ 261; Vydinadier v.
Krishnswami Iyer , (1911) ILR 36 Mad 375; Ferozshah v. Woutersz , (1902) PR No. 60 of 1902; Mirza v.
Bhagwati Parshad , (1895) 1 OB 786; Pannar v. Khunnu , (1936) ALJR 256; Babulal v. Ghasiram , 1970
MPLJ 810, p. 815.
73
PER LORD RADCLIFFE in Glinski v. Mciver, (1962) AC 726 : (1962) 1 All ER 696 : 106 SJ 261 (HL).
74
Ibid .
75
Ramdeo v. Birdichand Sumermal , (1962) RLW 86 : AIR 1962 Raj 19.

76
Abrath v. North Eastern Ry. Co. , (1886) 11 App Cas 247 : 11 QBD 440; Raghunathrao v. Motiram , (1933)
30 NLR 101; Basdeo v. Shyama Charan , (1936) ALJR 803; Mangal v. Maiku , (1937) OWN 226; Bhawani
Shankar v. Raghubar Dayal , (1937) ALJR 331; Lodd Govindoss v. Arumuga Mudali , (1937) 46 Mad LW
680.
77
Surendra Nath v. Bidhu Bhuson, (1943) 48 CWN 12.

78
Bhanwarlal Bapulal v. Fatesingh Pannalal , 1984 MPLJ 276 [LNIND 1984 MP 133].
79
Bharat Commerce and Industries v. Surendra Nath , AIR 1966 Cal 388 [LNIND 1965 CAL 189].
80
Satdeo Prasad v. Ram Narayan , AIR 1969 Pat 102 ; Gajendra Lingraj , AIR 1970 Ori 11 . Antarjami
Sharma v. Padma Bewa, AIR 2007 Ori 107 [LNIND 2007 ORI 63] para 9. See further p. 351, footnote 33.
81
PER TINDAL, C.J., in Broad v. Ham , (1839) 5 Bing NC 722 (725).

82
PER HOLLOWAY, C.J., in Goday Narrain v. Sri Ankitam Venkaka , (1871) 6 MHC 85; Dwarks Das v.
Harihar Dat , (1884) 4 AWN 1.
83
Busst v. Gibbons , (1861) 30 LJ Ex 75, followed in Ahmedbhai v. Framji , (1903) 5 Bom LR 940 : ILR 28
Bom 226.
84
Jamnadas v. Chunilal , (1920) 22 Bom LR 1207 [LNIND 1920 BOM 105], (1211).
Page 23 of 36
85
Herniman v. Smith, (1938) AC 305 : 82 SJ 192; Glinski v. Mciver , (1962) 1 All ER 696 : (1962) AC 726 :
106 SJ 261.
86
Abbot v. Refuge Assurance Company Limited , (1961) 3 All ER 1074 : (1962) 1 QB 432.
87
Sumat Prasad v. Ram Swarupa , ILR 1945 All 685 (693). See, Nagendra Kumar v. Etwari Sahu , AIR 1958
Pat 329 : ILR 36 Pat 786. A man may be prosecuted from a malicious motive and, yet, at the same time the
prosecutor may have reasonable and probable cause for prosecuting.
88
PER JENKINS L.J. in Leibo v. Buckman Ltd ., (1952) 2 All ER 1057.

89
Delegal v. Highley , (1837) 3 Bing NC 950.

90
Byne v. Moore , (1813) 5 Taunt 187; Mitchell v. Jenkins , (1833) 5 B & Ad 588, 594.
91
Mauji Ram v. Chaturbhuj , (1939) ALJ 752 : 20 PLTR 721; An Singh v. Bhagat Singh , (1938) ALJR 913.
92
Reed v. Taylor , (1812) 4 Taunt 616 ; Ellis v. Abrahams, (1846) 8 QB 709, followed in Ahmedbhai v. Framji
, (1903) 5 Bom LR 940 : ILR 28 Bom 226.
93
Hewlett v. Crutchley , (1813) 5 Taunt 277; Munhordas v. Goculdas , (1902) 4 Bom LR 560; Yachendrulu
Varu v. Narayanaswami, (1898) 9 MLJ 110; Maya Mal v. Madho Mal , (1883) PR No. 40 of 1884; Daw Yon
v. U. Min Sin , ILR (1940) Ran 631.
94
Ravenga v. Mackintosh , (1824) 2 B & C 693; Nurse v. Rustomji Dorabji, (1923) 46 MLJ 353 (355). See,
Bonnan v. Imperial Tobacco Co ., (1929) 31 Bom LR 1388 (PC), although it is a case of malicious
prosecution of civil action; Daw Yon v. U. Min Sin, Sup ; Sumat Prasad v. Ram Swarup , ILR (1945) All 685;
Manijeh v. S.P. Kotwal , ILR 1949 Nag 74; G.J. Khona v. A. Domodaran , AIR 1970 Ker 229 [LNIND 1969
KER 54].
95
Abbot v. Refuge Assurance Company Limited , (1961) 3 All ER 1074 : (1962) 1 QB 432.
96
Bradshaw v. Waterlow & Sons, Limited, (1915) 3 KB 527.

1
Bishonath v. Ram Dhone , (1869) 11 WR 42 : 6 Beng LR 375n; Vengama v. Raghava , (1864) 2 MHC 291;
Ganga Parshad v. Ramphul Sahoo , (1873) 20 WR 177; Weatherall v. Dillon , (1874) 6 NWP 200;
Annundtoll Dass v. Jointeechunder , (1866) 1 Ind Jur NS 91; Mahadeo Prasad v. Chunni Lal , (1925) 28 OC
Page 24 of 36
387 : 2 OWN 62; Gajraj v. Chandrika Prasad , (1928) 5 OWN 1039; Fateh Chand v. Lala Kaunj Behari Lal ,
(1940) ILR 15 Luck 404.
2
State of Bihar v. Rameshwar Prasad Baidya , AIR 1980 Pat 267 .

3
Byne v. Moore , (1813) 5 Taunt 187; Mitchell v. Jenkins , (1833) 5 B & Ad 588 (589). See, Nund Kishore v.
Kishan Dyal , (1868) PR No. 4 of 1868; Mossali Khan v. Habib Khan , (1878) PR No. 19 of 1878; P. M.
Mody v. Queen Insurance Co ., (1900) 2 Bom LR 938; ILR 25 Bom 332, (PC); Ebrahim Suliman v. Esuff
Suliman, (1897) PJLB 387 ; Mohanlal v. Diwan Lachhman Singh , (1971) MPLJ 266. Innocence per se
does not raise the presumption that there was a want of reasonable and probable cause, Nagendra Kumar
v. Etwari Sahu , AIR 1958 Pat 329 : ILR 36 Pat 786.
4
Bishabhkumar v. K. C. Sharma , AIR 1961 MP 329 [LNIND 1960 MP 97], Bharat Commerce & Industries v.
Surendranath , AIR 1966 Cal 388 [LNIND 1965 CAL 189].
5
Jadubar Singh v. Sheo Saran Singh , (1898) ILR 21 All 26; Parimi v. Beliamkonda , (1866) 3 MHC 238;
Ramayya v. Siveyya , (1900) ILR 24 Mad 549; Shivram v. Dhondu, (1886) PJ 9 ; Doongrusse v. Girdharee ,
(1868) 10 WR 439; Kazee Keibutoollah v. Motee , (1870) 13 WR 276; Shama Bibee v. Chairman of
Barangore Municipality, (1910) 12 CLJ 410 ; Chatra Serampore Co-operative etc. v. Becha Ram , 1939 ILR
1 Cal 123; Gunga Ram v. Hoollasee , (1870) 2 NWP 88 ; Jagnarain Dubey v. Bidapat Dubey, (1922) 4 PLT
202.
6
Niaz Mohammed v. Alfred Morris , (1947) 523 CWN 494; Bhanwarlal Bapulal v. Fatesingh Pannalal , (1984)
MPLJ 276 [LNIND 1984 MP 133] (conviction by a court of first instance, though not conclusive, will have a
bearing.
7
Niaz Mohammad Khan v. Deane , (1948) ILR 2 Cal 310.

8
Heera Chand v. Banee Madhub , (1866) 6 WR 29; Bindeshwari Prasad Tiwari v. Hanuman Prasad Tiwari ,
(1923) 22 ALJR 65.
9
Aghorenath Roy v. Radhika Pershad , (1870) 14 WR 339; Gulabchand v. Chunilal , (1907) 9 Bom LR 1134
[LNIND 1907 BOM 153].
10
Shubrati v. Shams-ud-din , (1928) ILR 50 All 713. Mohammad Haroon v. Asghar Hussain , ILR (1931) 10
Pat 842 ; Venkatapathi v. Balappa , ILR (1933) 56 Mad 641 ; Mauji Ram v. Chaturbhuj , (1939) ALJR 752 :
20 PLT 721, PC; Issardas v. Assudomal , ILR 1940 Karachi 230.
11
Venkatapathi v. Balappa, sup.; Ferozshah v. Woutersz , (1902) PR No. 60 of 1902.

12
Page 25 of 36
Mohanlal v. Lachman Singh , AIR 1960 MP 397 [LNIND 1960 MP 149]. See also, B.K. Mukherjee v.
Chairman, E.B.R.T. Authority, AIR 1961 Pat 227 and Nagendra v. Etwari , (1957) ILR 36 Pat 786; AIR 1958
Pat 329 .
13
Girja Prasad Sharma v. Umashankar Pathak , AIR 1973 MP 79 [LNIND 1972 MP 118] (82). (G.P. SINGH,
J.)
14
Ibid.
15
Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571, p. 3577 : (1997) 7 SCC 435.
16
Babulal v. Ghasiram , 1970 MPLJ 810, p. 818.

17
Sutton v. Johnstone , (1786) 1 TR 493 (545); Turner v. Ambler, (1847) 10 QB 252 (260); Lister v. Perryman
, (1870) LR 4 HL 521 (535); Bradshaw v. Waterlow & Sons, Limited, (1915) 3 KB 527; Herniman v. Smith,
(1938) AC 305 : 82 SJ 192 : (1938) 1 All ER 1.
18
Harish Chunder Neogy v. Nishi Kanta Banerjee , (1901) ILR 28 Cal 591; Himatkhan v. Himatkhan, (1872)
PJ 183 ; Town Municipality of Jambusar v. Girjashankar , (1905) 7 Bom LR 655; ILR 30 Bom 37; Naik
Pandey v. Bidya Pandey , (1916) 1 PLJ 149. See, however, P.M. Mody v. Queen Insurance Co ., (1900) 2
Bom LR 938 : ILR 25 Bom 332 (PC), which lays down that in Indian Courts a finding as to reasonable and
probable cause in an action for malicious prosecution is a question of fact though according to English law
it is a question left for the Judge to determine. See, Shama Bibee v. Chairman of Baranagore Municipality,
(1910) 12 CLJ 410 ; which is not followed in Kasireddi Chennareddi v. Venkataswami, (1919) 26 MLT 214.
19
Nagendra Nath Ray v. Basanta Das Bairagya , (1929) ILR 57 Cal 25. Questions of malice and reasonable
and probable cause are questions of law, but facts upon which those questions of law are to be determined
are questions of fact : Mohammad Haroon v. Asghar Hussain , (1931) ILR 10 Pat 842; Fateh Chand v. Lala
Kunj Behari Lal , (1940) ILR 15 Luck 404; Babulal v. Ghasiram , 1970 MPLJ 810, p. 817.
20
Abrath v. N.E. Ry. Co ., (1886) 11 App Cas 247 : 55 LT 63 : 2 TLR 416.

21
PER BOWEN, L.J. in 11 QBD p. 455.
22
Stevens v. Midland Coun Ry ., (1854) 10 Ex 352; Madhu Lal Ahir Gayawal v. Sahai Pande Dhami , (1900)
ILR 27 Cal 532; In re Sanjeevi Reddy, (1910) 9 MLT 172 : (1911) 1 MWN 149; Nagendra Nath Ray v.
Basanta Das Bairagya , (1929) ILR 57 Cal 25; Chhaganlal v. Thana Municipality , (1931) 34 Bom LR 143 :
ILR 56 Bom 135; Braja Sunder Deb v. Bamdeb Das , (1943) 47 Bom LR 566 (PC) : AIR 1944 PC 1; Mauji
Ram v. Chaturbhuj , (1939) ALJR 752, (1939) 20 PLT 721 (PC); Sheikh Mehtab v. Balaji , ILR (1946) Nag
358; Pingle Kodanda Rama Reddy v. J.K. Rama Rao , ILR 1952 Hyd 709; Niaz Ahmad Khan v. Deane ,
(1948) ILR 2 Cal 310; Jogendra v. Lingaraja , AIR 1970 Orissa 91 (100); State of Bihar v. Rameshwar
Prasad , AIR 1980 Pat 267 . Kottan Thazhathu Veettil Krishnan v. Palari Thaivalappil , AIR 1989 Kerala 83 .
Page 26 of 36
23
Braj Sunder Deb v. Bamder Das , AIR 1944 PC 1 : 47 Bom LR 566 (PC); See Bhogilal v. Sarojbahen , AIR
1979 Guj 200 [LNIND 1979 GUJ 88].
24
Hicks v. Faulkner, (1878) 8 QBD 167 (175) : 51 LJ QB 268; Bhim Sen v. Sita Ram , (1902) ILR 24 All 363;
Vogiazis v. Pappademitrious, (1912) 6 BLT 59; Kutumba Rao v. Venkataramayya, (1950) 2 MLJ 336
[LNIND 1950 MAD 303] : 63 MLW 821; Chellu v. Municipal Council, (1955) 1 MLJ 269.
25
Bharat Commerce and Industries v. Surendra Nath , AIR 1966 Cal 388 [LNIND 1965 CAL 189].
26
West Bengal Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976 paras 15 to 26 : (2007) 14 SCC 568
[LNIND 2006 SC 1039].
27
(1825) 4 B & C 247 (255).
28
PER LORD BRAMPTON in Quinn v. Leathem, (1901) AC 495 (524) : 85 LT 289 : 17 TLR 749.
29
Sutton v. Johnstone , (1786) 1 TR 493 (544); Brown v. Hawkes, (1891) 2 QB 718 (722); Hicks v. Faulkner,
(1878) 8 QBD 167 (175); Bhim Sen v. Sita Ram , (1902) ILR 24 All 363; Rammayya v. Sivayya , (1900) ILR
24 Mad 549; Hall v. Venkatakrishna , (1889) ILR 13 Mad 394; Goday Narain v. Ankitam Venkata , (1871) 6
MHC 85; Rai Jung Bahadur v. Rai Gudor Sahay , (1897) 1 CWN 537; Sri Nath Sahha v. L.E. Ralli , (1905)
10 CWN 253; Abdul Sakur v. Lipton & Co ., (1923) 6 LLJ 1; Maung Set Khaing v. Maung Tun Nvein , (1925)
ILR 3 Ran 82; Shivratan Singh v. Ram Siroman , (1927) ILR 2 Luck 487. Preferring an unfounded criminal
charge against the plaintiff with the indirect motive of bringing pressure on him to settle a civil action is
evidence of malice. Nurse v. Rustomji Dorabji, (1923) 46 MLJ 353. When prosecution is found to be based
on reasonable belief no inference of malice can be drawn. Major Gian Singh v. S.P. Batra , AIR 1973 P&H
400.
30
Munhordas v. Goculdas , (1902) 4 Bom LR 560; Brown v. Hawkes, (1891) 2 QB 718; Shama Bibee v.
Chairman of Baranagore Municipality, (1910) 12 CLJ 410 ; Evans v. Secretary of State for India , (1919) PR
No. 143 of 1919; Abubucker Ebrahim v. Maganlal K. Javeri, (1940) 1 MLJ 668 [LNIND 1939 MAD 214] : 51
MLW 635.
31
Willans v. Taylor , (1829) 6 Bing 183; N.S. Iyer v. S.A.S.M.R. Chetyar , (1932) ILR 10 Ran 282.
32
Glinski v. Mciyer , (1962) 1 All ER 696 : (1962) AC 726 : (1962) 2 WLR 832.
33
Hira Lal v. Bandhu, (1889) 9 AWN 189 ; Sukhdeo v. Bhojan, (1890) 10 AWN 423 ; Radhe Lal v. Munoo,
(1913) 11 ALJR 125 ; Puttu Lal v. Ram Sarup, (1918) 16 ALJR 468 ; Maung Set Khaing v. Maung Tun
Nyeing, (1925) ILR 3 Ran 82. See, Abrath v. N.E. Ry. Co., (1883) 11 QBD 440 (462), Board v. Ham, (1839)
Page 27 of 36
5 Bing NC 722, 727; Alamkhan v. Banemiya, (1925) 28 Bom LR 459; Khaje Hussenuddin v. Kisan, (1929)
25 NLR 180 ; Alexandra Brault v. Indra Krishna Kaul, (1933) ILR 60 Cal 918; Jiwan Das v. Hakumat Rai,
(1933) ILR 15 Lah 262; Kunj Behari Lal v. Fateh Chand, (1944) OWN 64; Daw Yon v. U. Min Sin, ILR 1940
Ran 631 ; Girja Prasad Sharma v. Umashankar Pathak, AIR 1973 MP 79 [LNIND 1972 MP 118]. Smt.
Sova Rani Dutt v. Debabrata Dutt, AIR 1991 Cal 186 [LNIND 1989 CAL 340]; Sumit Kumar v. Ladu Ram,
AIR 2004 Raj 30, pp. 32, 33. Antarjami Sharma v. Padma Bewa, AIR 2007 Ori 107 [LNIND 2007 ORI 63]
para 9 (Giving of false evidence which is false to the knowledge of a witness stands on the same footing as
bringing a false charge).
34
Fitzjohn v. Mackinder, (1861) 9 CBNS 505, (531); Municipality of Jambusar v. Girjashankar, (1905) 7 Bom
LR 655 : ILR 30 Bom 37; Shama Bibee v. Chairman of Barangore Municipality, (1910) 12 CLJ 410 ;
Rabindra Nath Das v. Jogendra Nath Das, (1928) ILR 56 Cal 432; N.S. Iyer v. S.A.S.M.R. Chettyar, (1932)
ILR 10 Ran 282; G.J. Khona v. A. Damodaran, AIR 1970 Ker 229 [LNIND 1969 KER 54].
35
Hicks v. Faulkner, (1878) 8 QBD 167 : 30 WR 545 : 46 SJ 127. The pivot upon which this action turns is the
state of mind of the prosecutor at the time he institutes or authorizes the prosecution. If he receives
information from others and acts upon it by making a criminal charge against any person, the motives of his
informants or the truth, in fact, of the story they tell, are to a great extent beside the point. The crucial
questions for consideration are : Did the prosecutor believe the story upon which he acted’ Was his conduct
in believing it, and acting on it, that of a reasonable man of ordinary prudence? Had he any indirect motive
in making the charge? PER LORD ATKINSON in Corea v. Peiris, (1909) AC 549 (555) followed in
Gopalkrishna Kudva v. Narayana Kamthy, (1918) 34 MLJ 517 [LNIND 1918 MAD 7].
36
Vydinadier v. Krishnaswami Iyer, (1911) ILR 36 Mad 375; Azmat Ali v. Qurban Ahmad, (1920) 18 ALJR
204.
37
G.K. Khona v. Damodaran, AIR 1970 Ker 229 [LNIND 1969 KER 54] (237).
38
Maharaja Bose v. Governor General, (1951) 56 CWN 248.

39
Municipal Board, Agra v. Mangli Lal, ILR 1950 All 1310.

40
Roshun v. Nabin, (1870) 12 WR 402 6 : Beng LR 377n; Maung Po Lun v. Ma Nyein Bon, (1918) 3 UBR
(1917-1920) 67.
41
Jiwan Das v. Hakumat Rai, (1933) ILR 15 Lah 262; Braja Sundar Deb v. Bamdeb Das, (1943) 47 Bom LR
566 (PC); AIR 1944 PC 1.
42
Hicks v. Faulkner, (1878) 8 QBD 167, 174 : 30 WR 545 : 46 SJ 127; Mitchell v. Jenkins , (1833) 5 B & Ad
588.
43
Page 28 of 36
Naik Pandey v. Bidya Pandey , (1916) 1 PLJ 149; Madanlal v. Lakshmi Narain, (1938) PWN 783.
44
Savile v. Roberts , (1698) 1 Ld Raym 374 (378); Gregory v. Portsmouth City Council , (2000) 1 All ER 560,
p. 565 (HL). See, Sriram Naidu v. Kolandavelu Mudali, (1916) 20 MLT 308, where it is held that an action
for malicious prosecution lies for a prosecution under the Cattle Trespass Act.
45
Johnson v. Emerson , (1871) LR 6 Ex 329; Bahori Lal v. Sri Ram , (1945) ALJR 462.
46
Quartz Hill Gold Mining Co. v. Eyre, (1883) 11 QBD 674 (690).
47
Nityanand v. Babu Ram , (1937) ALJR 528.

48
Ahmedabad Municipality v. Panu Bhai , (1934) 37 Bom LR 468; Municipal Board, Agra v. Mangilal , ILR
1950 All 1310. But, see, Chellu v. Municipal Council, Palghat , (1954) 68 MLW 317.
49
Berry v. British Transport Commission , (1961) 3 All ER 65 (CA); Gregory v. Portsmouth City Council supra
.
50
Rayson v. South London Tramways Co ., (1893) 2 QB 304.

51
Savile v. Roberts , (1698) 1 Ld Raym 374 (378); approved in Mohammed Amin v. Jogendra Kumar
Bannerjee , AIR 1947 PC 108. See further, Rai Jung Bahadur v. Rai Gudor Sahay , (1897) 1 CWN 537;
Bunnomali Nundi v. Hurridass Byragi , (1882) ILR 8 Cal 710; Shama Churn v. Beharee Lall , (1870) 14 WR
443; Huro Lall v. Huro Chunder , (1869) 12 WR 89; Annundloll Dass v. Jointee Chunder , (1866) 1 Ind Jur
(NS) 93; Sheikh Mehtab v. Balaji , ILR 1946 Nag 358; R.K. Soni v. S. Singhara Singh , AIR 1992 Delhi 264
[LNIND 1991 DEL 460]. The shares of the sons in joint family property are not liable in execution of a
decree obtained against their father for damages for malicious prosecution; Sunder Lal v. Raghunandan
Prasad , (1923) ILR 3 Pat 250.
52
Badri Das v. Nathu Mal , (1901) PR No. 112 of 1901.

53
See, cases in note 55, post .

54
Ibid.
55
Shriram v. Bajranglal, (1949) NLJ 57 ; Manijeh v. S.P. Kotwal , ILR 1949 Nag 74. See further Rishabh
Kumar v. K.C. Sharma , AIR 1961 MP 329 [LNIND 1960 MP 97]; Lakhanlal v. Kashinath , AIR 1960 MP
171 [LNIND 1959 MP 16]; C.M. Agarwalla v. Halar Salt and Chemical Works , AIR 1977 Cal 356 [LNIND
1977 CAL 197].
Page 29 of 36
56
See, text and note 51, p. 210, Chapter IX, ante ; Rookes v. Barnard, (1964) AC 1129 : (1964) 2 WLR 269
(HL); Cassel & Co. Ltd. v. Broome, (1972) AC 1027 : (1972) 2 WLR 645 : (1972) 1 All ER 801 (HL). But,
see, Venkatappayya v. Ramkrishnamma , (1931) 34 MLW 898; Lala Punnalal v. Kasturichand Ramaji,
(1945) MLJ 461; Ramesh Chandra v. Brojendra Nath , (1949) 54 CWN 135; C.M. Agarwalla v. Halar Salt
and Chemical Works , AIR 1977 Cal 356 [LNIND 1977 CAL 197].
57
Mohamed Amin v. Jogendra Kumar Banerjee , AIR 1947 PC 108 citing Quartz Hill Gold Mining Co. v. Eyre,
(1883) 11 QBD 674. See, Metallund Rohstoff Donaldson Lufken & Jenerette Inc , (1989) 3 All ER 14 (CA).
58
See, title (1) text and notes 2 and 3, p. 337, ante .

59
Johnson v. Emerson , (1871) LR 6 Ex 329; Mohamed Amin v. Jogendra Kumar Banerjee, supra .
60
Quartz Hill Gold Mining Co. v. Eyre, supra; Mohamed Amin v. Jogendra Kumar Banerjee, supra.
61
(2000) 1 All ER 560, pp. 569, 570 (HL).
62
Churchill v. Siggers , (1854) 3 E & B 929, 937; Manaklal Nihalchand v. Hamid Ali , ILR 1944 All 581;
Sadashiv Govind v. Sheduram , (1953) 56 Bom LR 984; Harasimhan Potty v. Easwara Iyer , ILR 1956 TC
324.
63
Premji v. Govindji , AIR 1947 Sind 169.

64
Roy v. Prior, (1971) AC 470 : (1970) 1 QB 283 : (1969) 3 WLR 635 (HL).
65
Sadashiv Govind v. Sheduram , (1953) 56 Bom LR 984.

66
Brown v. Hawkerss, (1891) 2 QB 718 : 65 LT 108.

67
Nicholas v. Sivarama Ayyar , (1922) ILR 45 Mad 527.

68
Syamalambal v. Namberumal Chettiar , (1956) MWN 916 : AIR 1957 Mad 156 [LNIND 1956 MAD 139];
Bank of India v. Lakshimani Dass , AIR 2000 SC 1172. See further p p. 358, 359.
69
See, Shaikh Mohamed Rezooddeen v. Hossein Buksh Khan, (1866) 6 WR (Mis) 24.
70
Page 30 of 36
See, Goburdhun Majhee v. Banee Chunder Dass , (1874) 21 WR 375; Bank of India v. Lakshimani Dass ,
AIR 2000 SC 1172 p. 1176. No suit would, however, lie if the wrongful attachment has not taken place
owing to security not being furnished by the plaintiff: Ramasami Aiyar v. Govinda Pillai, (1915) 30 MLJ 180.
71
See, Nangappa Chettiar v. Ganapathi Gounden , (1911) ILR 35 Mad 598; Bank of India v. Lakshimani Dass
, supra.
72
See, Wilson v. Kanhya Sahoo , (1869) 11 WR 143. See, Palani Kumarasamia Pillai v. Udayar Nadan ,
(1908) ILR 32 Mad 170.
73
Roy v. Prior, (1971) AC 470 : (1970) 1 QB 283 : (1969) 3 WLR 635 (HL); Foth v. O'Hara , (1959) 15 DLR
(2d) 332 (336).
74
Daniels v. Fielding , (1846) 16 M & W 200 (206); Walley v. M. Connell, (1849) 13 QB 903. See Clissold v.
Cratchley, (1910) 2 KB 244, 249 : 102 LT 520. Bheema Charlu v. Donti Murti , (1875) 8 MHC 38.
75
For False Imprisonment, see , title 3, Chapter XI.

76
Thakdi Halji v. Budrudin Saib , (1906) ILR 29 Mad 208; Bachoo Bhaidas v. Velji Bhimsey & Co ., (1923) 25
Bom LR 595 [LNIND 1923 BOM 68]. See, Lock v. Ashton, (1848) 12 QB 871, to the same effect.
77
U. Thwe v. A. Kim Fee , (1929) ILR 7 Ran 598. In this case a process-server showed to the judgment-
debtor the warrant of arrest and the judgment-debtor thereupon paid up the amount. It was held that he
could not be said to have been arrested.
78
Lala Punnalal v. Kasturichand Ramaji, (1945) 2 MLJ 461 [LNIND 1945 MAD 227] : (1945) MWN 720 : 58
MLW 613. But, see, Dr. Mohammed v. Dr. Mehfooz Ali , 1991 MPLJ 559 (The defendant maliciously made
false complaints on which the plaintiff's premises were searched. In a suit for damages the High Court held,
it is submitted wrongly, that it was a case of damnum sine injuria .
79
Gibbs v. Rea, (1998) AC 786; Gregory v. Portsmouth City Council , (2000) 1 All ER 560 p. 566 (HL).
80
Waterer v. Freeman , (1619) Hob 266; Grainger v. Hill , (1838) 4 Bing NC 212 ; Graig v. Hassell, (1843) 1
QB 481; Chandler v. Doulton , (1865) 3 H & C 553; Clissold v. Cratchley, (1910) 2 KB 244. Gregory v.
Portsmouth City Council , (2000) 1 All ER 560, p. 566 (HL).
81
The Walter D. Wallet, (1893) p. 202; Gregory v. Portsmouth City Council, supra .
82
Jarmain v. Hooper , (1843) 6 M & G 827.

Page 31 of 36
83
N.R.M.N. Ramanathan Chetty v. M.K.A. Meera Saibo Marikar , (1931) ALJR 541 ; (1930) 61 MLJ 330 :
OWN 325 (PC).
84
See, text and notes 1 (p. 359) and 4 (p. 359).
85
Kissori Mohun Roy v. Harsukh Das , (1889) 17 IA 17 : ILR 17 Cal 436; Qaim Husain v. Pirbhu Lal , (1938)
ALJ 654.
86
Subjan Bibi v. Sheikh Sharietulla , (1869) 12 WR 329 : 3 Beng LR (ACJ) 413; Kanaye Pershad v. Hur
Chand , (1870) 14 WR 120 : 5 Beng LR (Appx) 71; Bhusan v. Norendra, (1920) 32 CLJ 236 ; Abdul Rahim
v. Sital Prasad , (1919) 17 ALJR 856 ; Damodhar Tuljaram v. Lallu Khusaldas, (1871) 8 BHC (ACJ) 177 ;
Goma Mahad Patil v. Gokuldas Khimji and Tapidas Khimji , (1878) ILR 3 Bom 74; Udaychand Pannalal v.
Thansingh Karamchand , (1934) ILR 62 Cal 586. A person who assists in the conduct of a search by police
is not liable in damages for illegal search: Asan Alliar Maraikayar v. Masilamani Nadar, (1918) 36 MLJ 252 :
(1919) MWN 452; Biharilal v. Anjirabai , ILR 1947 Nag 827.
87
Velaet Ali Khan v. Matadeen Ram , (1870) 13 WR 3. An action can be maintained though there is no
completed attachment; and where the defendant drops further proceedings in the suit it is not necessary for
the plaintiff to show that those proceedings ended in his favour: Nicholas v. Sivarama Aiyar , (1922) ILR 45
Mad 527.
88
Kedarnath v. Biharilal , (1924) 27 Bom LR 525 : ILR 49 Bom 629.

89
Nasiruddin Karim Mahomed v. Umerji Adam & Co ., (1940) 43 Bom LR 546 : ILR (1941) Bom 521.
90
PER NORMAN J., in Subjan Bibi v. Sheikh Sharietulla , (1869) 12 WR 329 : 3 Beng LR (ACJ) 413. See,
Rajbullub Gope v. Issan Chunder Hujrah , (1867) 7 WR 355; Joykalee Dasee v. Chandmalla , (1868) 9 WR
133; Dhurmo Narain Sahoo v. Sreemutty Dossee , (1872) 18 WR 440. If a policeofficer, outside his
jurisdiction, helps another police officer, he is not liable in damages for the assistance given though he
cannot validly carry on the search himself : Asan Alliar Maraikayar v. Masilamani Nadar, (1918) 36 MLJ 252
: (1919) MWN 452.
91
Doolar Chand Sahoo v. Ram Sahoy Bhuggut , (1875) 24 WR 139.

92
Bishun Singh v. A.W.N. Wyatt , (1911) 16 CWN 540 : 14 CLJ 515; Nasiruddin Karim Mahomed v. Umerji
Adam & Co., sup .
93
Bhut Nath Pal v. Chandra Binode, (1912) 16 CLJ 34. See also, Ram Pratap v. Narain Singh , AIR 1966 All
172 .
94
Page 32 of 36
Kisorymohun Roy v. Hursookh Dass , (1889) 17 IA 17, ILR 17 Cal 436. K.A. Assan Mahomed v. S.M.
Kadersa Rowther , (1924) ILR 2 Ran 181; Qaim Husain v. Pirbhu Lal , (1938) ALJR 654.
95
Goutier v. Robert , (1870) 2 NWP 353; Surajmal v. Manekchand , (1903) 6 Bom LR 704. Nanjappa Chettiar
v. Ganapathi Gounden , (1911) ILR 35 Mad 598; Hukam Chand v. Umar Din , (1919) PR No. 21 of 1920.
See, Palani Kumarasamia Pillai v. Udayar Nadan , (1908) ILR 32 Mad 170.
96
Nanjappa Chettiar v. Ganapathi Gounden, supra .

1
Bank of India v. Lakshimani Dass , AIR 2000 SC 1172, p. 1178 : (2000) 3 SCC 640 [LNIND 2000 SC 460].
2
Mohanund Holdar v. Akial Mehaldar , (1868) 9 WR 118; Motiram v. Nilkanth Rao , ILR 1937 Nag 19; Firm
of Eng. Moh. v. Chinese Merited Banking Co. Ltd ., ILR 1941 Ran 1 ; Pirthi Nath v. M.H. Nowroji , (1941)
OWN 555.
3
Kanaye Pershad v. Hur Chand , (1870) 5 Beng LR (Appx) 71 : 14 WR 120.

4
Syamalanbal v. Namberumal Chettiar, (1957) 1 MLJ 118 : (1956) MWN 916.

5
Goma Mahad Patil v. Gokaldas Khimji and Tapidas Khimji , (1878) ILR 3 Bom 74; Bishamber Nath v.
Gaddar , (1910) 8 ALJR 92.
6
Rani Mina Kumari Bebi v. Surendra Narain Chakravarty , (1909) 14 CWN 96; Mohini Mohan Misser v.
Surendra Narain Singh , (1914) ILR 42 Cal 550; Chakrapani Naidu v. Venkataraju , (1938) MWN 982 : 48
MLW 436.
7
Bachoo v. Velji Bhimsey & Co ., (1923) 25 Bom LR 595 [LNIND 1923 BOM 68] ; Williams v. Smith, (1863)
14 CBNS 596.
8
Goma Mahad Patil v. Gokuldas Khimji and Tapidas Khimji , (1878) ILR 3 Bom 74. See, Mudhun Mohun
Dass v. Gokul Dass , (1866) 10 MIA 563. The defendant is liable for all the loss incurred by the plaintiff if he
gets a receiver appointed to take possession of the plaintiff's property: Manaklal Nihalchand v. Hamid Ali ,
ILR 1944 All 581.
9
Kissori Mohan Roy v. Hursookh Dass , (1889) 17 IA 17 : ILR 17 Cal 436; Bishamber Nath v. Gaddar ,
(1910) 8 ALJR 92.
10
Velaet Ali Khan v. Matadeen Ram , (1870) 13 WR 3; Lala Punnalal v. Kasturichand Ramaji, (1945) 2 MLJ
461 [LNIND 1945 MAD 227] : (1945) MWN 720 : 58 MLW 613.
Page 33 of 36
11
(1838) 4 Bing NC 212.
12
Ibid ., pp. 221, 222. See further, Goldsmith v. Sperrings Ltd ., (1977) 2 All ER 566 : (1977) 1 WLR 478 (CA);
Speed Seal Products Ltd. v. Paddington , (1986) 1 All ER 91 (CA), pp. 97, 98; Filmistan Distributors (India)
Pvt. Ltd., Bombay v. Hansaben Baldevdas Shivlal , AIR 1986 Guj 35 . Metall and Rohstoff AG v. Donaldson
Lufkin & Jenrette , (1989) 3 All ER 14 (CA).
13
Metall and Rohstoff AG v. Donaldson Lufkin & Jenrette , (1989) 3 All ER 14 (CA), pp. 51, 52; C.B. Aggarwal
v. Smt. P. Krishna Kapoor , AIR 1995 Delhi 154 [LNIND 1994 DEL 774].
14
Ibid. , p. 50.
15
AIR 1986 Guj 35 .
16
C.B. Aggarwal v. Smt. P. Krishna Kapoor , AIR 1995 Delhi 154 [LNIND 1994 DEL 774].
17
See, Chapter V, title (4) text and notes 72 and 73, pp. 86, 87.
18
Ibid .
19
Dunlop v. Woollahara Municipal Council , (1981) 1 All ER 1202 p. 1210 : (1982) AC 158 : 124 LT 584;
Jones v. Swansea City Council , (1989) 3 All ER 162 (C.A.), p. 173. See further, David v. Abdul Cader,
(1963) 1 WLR 834 (PC), Caveley v. Chief Constable of the Merseyside Police , (1989) 1 All ER 1025 (HL).
20
Jones v. Swansea City Council , (1989) 3 All ER 162 (CA), p. 173.

21
Bougoin SA v. Ministry of Agriculture Fisheries and Food , (1985) 3 All ER 585 (CA); Jones v. Swansea
City Counsil, (1989) 3 All ER 162 (CA), p. 173; There Rivers District, Counsil v. Bank of England (No. 3),
(1996) 3 All ER 558.
22
Jones v. Swansea City Council, supra , p. 173.

23
Calveley v. Chief Constable of the Merseyside Police , (1989) 1 All ER 1025 (HL).
24
Jones v. Swansea City Council, supra , p. 175.

25
Page 34 of 36
Jones v. Swansea City Council , (1990) 3 All ER 737 (HL).

26
See, notes 19, 20, 21, 22 and 24, supra .

27
Jones v. Swansea City Council , (1990) 3 All ER 737 (HL), p. 741.

28
(1996) 3 All ER 558.
29
Ibid., pp. 632, 633.

30
Three Rivers District Council v. Bank of England , (2000) 3 All ER 1 pp. 12, 36, 42, 44, 45 (HL).
31
See text and footnote 46, p. 365, post .

32
See note 30, supra.

33
Three Rivers District Council v. Bank of England (No. 3) , (2001) 2 All ER 513, p. 550 (LORD HUTTN) (HL).
See further p. 526 (Lord Hope) of the report which is referred in Pramod Malhotra v. Union of India, (2004)
3 SCC 415 [LNIND 2004 SC 1543], p. 427.
34
Akenzua v. Secretary of State for the Home Department , (2003) 1 All ER 35 (CA).
35
(2006) 2 All ER 353 (H.L.).
36
Ibid, p. 358.
37
Ibid, p. 364.
38
Ibid, p. 365.
39
Lucknow Development Authority v. M.K. Gupta , AIR 1994 SC 787, pp. 798-800 : (1994) 1 SCC 243
[LNIND 1993 SC 946].
40
S.P. Goel v. Collector of Stamps Delhi , (1995) 7 Scale 174, p. 182 : AIR 1996 SC 839 : (1996) 1 SCC 573
[LNIND 1995 SC 1274].
41
Page 35 of 36
See text and notes 14 to 17, pp. 219, 220.

42
(1996) 7 Scale 156 [LNIND 1996 SC 1542] : AIR 1996 SC 3538 : (1996) 6 SCC 530 [LNIND 1996 SC
1542].
43
Ibid , p. 174 (Scale).

44

45
Ibid .
46
Common Cause A Registered Society v. Union of India , (1996) 8 Scale 127 [LNIND 1996 SC 2843], p. 130
: AIR 1997 SC 1886 p. 1889 : (1996) 6 SCC 593 [LNIND 1996 SC 2843].
47

48
Shivsagar Tiwari v. Union of India , (1996) 7 Scale 643 : (1996) 6 SCC 558 [LNIND 1996 SC 1873].
49
Ibid , p. 646.
50
Shivsagar Tiwari v. Union of India , (1996) 8 Scale 338, p. 343 : AIR 1997 SC 1483, p. 1486 : (1996) 6 SCC
599 [LNIND 1996 SC 1873].
51
See text notes 42 to 46, supra .

52
Common cause, a Registered Society v. Union of India , (1999) 5 JT 237 : AIR 1999 SC 2979.
53
Ibid, pp. 278, 279 (J.T.) : pp. 3007, 3008 (AIR); propositions are quoted at pp. 361 and 363.
54
Ibid. , p. 289 (J.T.) : p. 3015 (AIR).

55
Ibid. , p. 289 (J.T.) : p. 3015 (AIR).

56
Ibid. , pp. 289, 290, (J.T.) : p. 3015 (AIR).

57
Page 36 of 36
Ibid. , p. 290 (J.T.) : p. 3015 (AIR).

58
Ibid. , p. 297 (J.T.) : p. 3020 (AIR).

59
Ibid. , p. 303 (J.T.) : p. 3023 (AIR).

60
footnote 50, supra.

61
For the case see , ante.
End of Document
CHAPTER XIV WRONGS RELATING TO DOMESTIC AND OTHER
MISCELLANEOUS RIGHTS
CHAPTER XIV WRONGS RELATING TO DOMESTIC AND OTHER MISCELLANEOUS RIGHTS
1. WRONGS RELATING TO DOMESTIC RIGHTS
1(A) Introduction
THE first part of this chapter deals with torts which interfere with a person's family and service relationships. These
torts are based on the archaic notion that a man has a proprietary interest in the services of his family members and
domestic servants. Actions for enticement including harbouring, which may consist in merely providing shelter for
an errant wife, and for criminal conversation (adultery) are now out of tune with the present day notions of equality
of status of husband and wife. Besides the actions are liable to serious abuse of blackmail through collusion
between husband and wife. The action against a person for injuring the plaintiff's wife, minor children, domestic
servant and for compensation for loss of services apart from being based on the notion that a person has a
proprietary right over his wife, children and servant offends against the principle that the mere fact that an injury to
A prevents a third party getting from A a benefit which he would have otherwise obtained does not give the third
party a right of action against the person causing the injury. The right of action for the injury against the wrong-doer
vests in the person injured. It has, indeed, been held that in an action for personal injury the wife can include a
claim for damages for cost of employing a domestic help, i.e. for loss of house-keeping ability. 1 On account of
criticism by judges 2 and jurists 3 some of the actions were abolished in England by the Law Reform
(Miscellaneous Provisions) Act, 1970 and all of them have been abolished by the Administration of Justice Act,
1982, section 2 of which reads:
“No person shall be liable in tort—
(a) to a husband on the ground only of his having deprived him of the services or society of his wife;
(b) to a parent (or person standing in place of parent) on the ground only of his having deprived him of the
services of a child; or
(c) on the ground only—
(i) of having deprived another of the services of his menial servant;
(ii) of having deprived another of the services of his female servant by raping or seducing her; or
(iii) of enticement of a servant or harbouring a servant.”
In India there has, so far, been no legislation abolishing the actions mentioned in section 2 of the Administration of
Justice Act. Although in some cases 4 the common law was followed but such actions are not common in India.
The Orissa High Court has followed the English Act of 1970, which abolished amongst others the action for
damages by parents for loss of services of a child when the tort was founded upon rape, seduction or inticement of
that child. 5 It is expected that the principle behind the English Acts in abolishing these actions will be followed by
Page 2 of 18
other High Courts also. As in any case the actions are not common now. The discussion in rest of Part I of this
Chapter is being omitted from this edition.
2. INTERFERENCE WITH SUBSISTING CONTRACT
2(A) General
It is a violation of legal right to interfere with contractual relations recognized by law if there be no sufficient
justification for interference. 6 Interference with the performance of a contract is an actionable wrong unless there
be justification for interfering with the legal right. 7 This tort is committed when A either directly persuades B to
break his contract with C or by doing some unlawful act he indirectly prevents B to perform the contract. The origin
of this tort can be traced to Lumley v. Gye , 8 where the defendant, the Manager of a Theatre, persuaded a singer,
Miss Wagner, to break her contract with the plaintiff, the Manager of a rival Theatre, to sing at his Theatre. The
Court of Queen's Bench on a demurrer held that the principle that the procurement of the violation of a right is a
cause of action applied to violation of a right to the performance of a contract. 9 “It was undoubtedly prima facie an
unlawful act on the part of Miss Wagner to break her contract,” observed WIGHTMAN, J., “and, therefore, tortious
act of the defendant maliciously to procure her to do so.” 10 This was a case where the defendant directly
persuaded B to break his contract with C.
This tort is, however, not confined to direct intervention. The intervener A knowing of the existence of a contract
between B and C and acting with the object of procuring its breach by B to the damage of C will be liable not only
(1) if he directly intervenes by persuading B to break it, but also (2) if he intervenes by the commission of some act
wrongful in itself so as to prevent B from in fact performing his contract and also (3) if he persuades a third party to
do an act in itself wrongful or not legitimate (as committing a breach of a contract of service with B) so as to render,
as was intended, impossible B's performance of his contract with C. 11
It has also to be noticed that the tort is not restricted to procuring a breach of contract but covers on like conditions
interference with the performance of the contract, i.e. preventing or hindering one party from performing his contract
even though it may not be a breach of the contract. 12
2(B) Three Categories of Cases
Direct intervention by persuasion covers the case where the intervener, either by himself or his agents, speaks,
writes or publishes words or does other acts which communicate pressure or persuasion to the mind of one of the
contracting parties. 13 Persuasion has to be distinguished from mere advice. 14 However, irrespective of the form,
if the words used are intended to influence to break his contract with C and have that effect they will amount to
persuasion. 15
The second category consists of cases where the intervener does some unlawful act on the person or property of B
which disables him in performing his contract with C. This is illustrated by cases where the intervener unlawfully
detains B 16 or breaks his essential tools or machinery 17 with the knowledge of B's contract with C and with an
intent to bring about its breach or non-performance. But if the act of the intervener is not unlawful, he cannot be
made liable for any tort although his act may prevent B in fulfulling his contract with C. For example, if A declines to
supply goods to B without committing any breach of contract with him, although with the knowledge that the goods
are needed by B for supplying them to C under another contract, A cannot be made liable for a tort even if the non-
supply of goods by him prevents B in performing his contract with C.
The third category covers cases where the intervener persuades a third party to do some unlawful act which
interferes in B's due performance of his contract with C as was intended. Most common examples of this category
are cases where the employees of a party to the primary contract or a subsidiary contract are persuaded to commit
a breach of their contract of employment with an intention to interfere with the performance of the primary contract.
Page 3 of 18
The necessary conditions to be established in such cases are : first that the person charged with actionable
interference knew of the existence of the contract and intended to procure interference with its performance;
secondly, that the person so charged did definitely and unequivocally persuade, induce or procure the employees
concerned to break their contracts of employment with the aforesaid intent; thirdly, that the employees so
persuaded, induced or procured did in fact break their contracts of employment; and fourthly, that interference with
performance of the contract forming the alleged subject of interference ensued as a necessary consequence of the
breach by the employees concerned of their contracts of employment. 18 In Merkur Island Shipping Corporation
case, 19 the plaintiffs were owners of a Liberian registered ship which was let by them on charter providing that the
ship-owners shall prosecute the voyages with the utmost despatch. The charterers in turn had subchartered the
ship. The ship arrived at a dock in Liverpool for loading. The subcharterers had a contract with the tug-owners for
the provision of tugs to take the ship into and out of the dock at which the ship was to be loaded. The defendants
were officials of the International Transport Workers Federation (I.T.F.) who having come to know that the crew
employed by the plaintiffs were being paid less than the wages approved by I.T.F., persuaded the tugmen
employed by the tug-owners to refuse, in breach of their contract with the tug-owners, to move the ship out of the
dock so as to enable her to sail. In an appeal arising out of an action for injunction and damages, the House of
Lords held that the defendants were liable for the tort of interference with the performance of contract. The contract
of which the performance was interfered with was the charter; the form the interference took was by immobilising
the ship in Liverpool to prevent the Captain from performing the contractual obligation of the ship-owners ‘to
prosecute his voyages with the utmost despatch’. The unlawful means by which the interference was effected was
by procuring the tugmen to break their contracts of employment by refusing to carry out the operations on the part
of the tug-owners that were necessary to enable the ship to leave the dock. 20
2(C) Conditions to be proved
In a suit for interference with a subsisting contract the plaintiff can succeed if five conditions are fulfilled. 21 First,
there must be either (a) ‘direct’ interference with performance of the contract or (b) indirect interference with
performance coupled with the use of unlawful means, cases of the second and third categories discussed above
will fall under the head ‘indirect’ interference requiring unlawful means. Secondly, the defendant must be shown to
have knowledge of the relevant contract; but it is not necessary that he should have known its precise terms. 22
Thirdly, he must be shown to have had the intent to interfere with it. However, the requisite knowledge and intention
may be inferred from circumstances. 23 Fourthly, the plaintiff must show that he has suffered special damage, that
is, more than nominal damage. Fifthly, so far as is necessary, the plaintiff must successfully rebut any defence
based on justification which the defendant may put forward. 24 It may be also mentioned here that it is no tort to
interfere with a void contract. 25 Further, the tort is also possibly not committed if the interference in question
results not in any breach of non-performance but merely in a party exercising a lawful right to terminate it, 26 e.g.
when the contract is terminable at will 27 or is voidable. 28
2(D) Justification
If the conditions mentioned earlier are satisfied, the defendant can escape liability by proving sufficient justification.
But it must be stated at the outset that if the necessary conditions imposing liability are shown to exist, liability
cannot be avoided by merely showing that the defendant acted in good faith and without malice or under a mistaken
understanding of his legal rights. 29 What in law will amount to sufficient justification negativing liability cannot be
satisfactorily defined. 30 The good sense of the tribunal which has to decide would have to analyse the
circumstances and to discover on which side of the line each case falls. 31 In analysing or considering the
circumstances, regard must be had to the nature of the contract broken, the position of the parties to the contract;
the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the
breach to the person who breaks the contract; and to the object of the person procuring the breach. 32 When the
contract of which breach is procured is of master and servant, the defendant procuring such a breach cannot
escape liability merely by showing that he had no personal animus against the plaintiff and that it was to the
advantage of both the defendant and the workman that the contract be broken. 33 The miners employed at the
Collieries in South Wales, without giving notice to their employers and in breach of their contract with them,
abstained from working on certain days, called ’stop days’. In so doing the miners acted under the direction or order
of a Federation of Miners given by their executive council. The object of procuring the breach of contract was to
Page 4 of 18
keep up the price of coal, upon which the amount of the miner's wages depended. In an action by the employers
against the federation and its officers, it was held that the defendants were liable in damages, there being no
sufficient justification for their interference. 34 But if the contract, though not void, is unfair to the servant, the
defendant may possibly avoid liability by showing that he procured its breach not to benefit himself but to secure for
the servant employment on just terms elsewhere and to bring to him social justice.
The Court of Appeal in a recent case, 35 after a review of the authorities, pointed out that the following matters
have been held not to amount to justification: (1) Absence of malice or ill will or intention to injure the person whose
contract is broken; (2) the commercial or other best interests of the interferer or the contract breaker; (3) the fact
that A has broken his contract with X does not of itself justify X in the revenge procuring a breach of an independent
contract between A and B. 36 It was also pointed out that, on the other side of the line, justification has been held
to exist (1) where there is a moral duty to intervene; and (2) where the contract interfered with is inconsistent with a
previous contract with the interferer. 37 The Court of Appeal further held that if the defendant had an equal or
superior right which would justify him in interfering with the plaintiff's contractual rights with a third party, he would
not be liable to the plaintiff if, instead of exercising his strict legal rights, he reached an accommodation with the
third party which had the effect of interfering with the contract between the plaintiff and the third party. 38 In this
case the defendants, a finance company, advanced substantial loan, secured by a mortgage, to a property
developer P who engaged the plaintiffs as architects. The development work could not be started and interest on
loan accrued to such an extent that P was unable to repay the loan. The defendants, instead of exercising their right
of sale of the property, agreed to finance the development but insisted that P should dismiss the plaintiffs as
architects for the development. The plaintiffs brought an action against the defendants alleging that they had
unlawfully procured P to break his contract with the plaintiffs. The Court of Appeal held that the defendants’ right to
receive payment of loan with interest from P was a superior right which justified their interference with the plaintiffs
contract. Had the defendants exercised their right of sale under the mortgage that would have had the inevitable
consequence of putting an end to the plaintiffs’ contract and the defendant could not be made liable if they instead
of strictly enforcing their legal rights, reached an accomodation with P which had the same effect on the contract
with the plaintiffs. 39
In Z.H.U. v. Treasurer of New South Wales , 40 the High Court of Australia by a joint judgment laid down the
following principles for sustaining the defence of justification:
“(1) The defence of justification rests upon the principle that an act which infringes a legal right of another
person may be justified if that act is “reasonably necessary” to protect an “actually existing superior legal
right” of the person doing the act. An equal, rather than superior, right is not sufficient to find justification.
(2) An “equally existing superior legal right” is a right in real or personal property; it is not merely a right to
contractual performance. A right in real or personal property, being a proprietary right, is superior to a right
to contractual performance Superiority is conferred by the proprietary nature of that right; temporal priority
of pure contractual rights is not sufficient. Superiority may also be conferred by statute.
(3) In order for an act to be “reasonably necessary” to protect an actually existing superior legal right, attention
must be drawn to how a reasonably prudent person would have behaved if they were in the position of the
person doing the act.”
The facts in this case were that the plaintiff an Australian citizen who was born in China entered into an Agency
agreement with TOC Management Services Pty. Ltd ., (TOC) for selling membership in an ‘Olympic Club’ to
residents in China. This agreement was breached when TOC purported to terminate it in November, 1999. TOC did
so on persuasion of the Sydney Organizing Committee for Olympic Games (SOCOG). SOCOG also interfered with
the Agency agreement in two other ways—by preventing TOC from performing it and then by causing the new
South Wales Police to arrest the plaintiff. The plaintiff sued for interference with contract. The trial judge decreed
the suit for damages against SOCOG which was reversed by the New South Wales Court of Appeal on the ground
that the defence of justification by SOCOG to protect its contractual rights was established. In further appeal, the
High Court set aside the court of appeal's judgment. The High Court held that the defence of justification was not
established as SOCOG did not have any proprietary right and its rights were contractual not superior to the
appellants rights and also that the action taken were not reasonably necessary to protect those rights.
Page 5 of 18
3. INTIMIDATION
The tort of intimidation means that when A threatens to do some unlawful act intentionally causing B to do or refrain
from doing some act resulting in damage to himself or to a third person C, A is liable to pay damages in an action
by B or C as the case may be. The threat by A must relate to the doing of some unlawful act. Anything that one can
lawfully do one can also lawfully threaten to do. This follows from the case of Allen v. Flood . 41 In Rookes v.
Barnard 42 which is a leading authority on this tort, it was held that threatening to break a contract which the
person threatening has no legal right to break is in the context of this tort an unlawful act and stands on the same
footing as a threat to commit a tort. In Rookes v. Barnard , 43 the facts were that the plaintiff was employed as a
skilled draughtsman by B.O.A.C. The plaintiff left his Union. Other employees of B.O.A.C. were Union Members. In
the contract of employment it was provided that there should be neither strike nor lockout. The Union passed a
resolution that B.O.A.C. should be informed that unless the plaintiff was removed all labour would be withdrawn.
B.O.A.C. acting upon this threat first suspended the plaintiff and later dismissed him after period of notice in
accordance with the contract of employment. The threat by the Union to withdraw labour constituted threat to break
the contracts of employment of the employees which they were not entitled to do. The defendants were two union
members who were employees of B.O.A.C. and who spoke in favour of the resolution. The third defendant was an
official of the Union. The trial judge held in favour of the plaintiff. The Court of Appeal held otherwise on the ground
that the tort of intimidation was limited to threats of violence and did not embrace threats to break contracts. The
House of Lords allowed the plaintiff's appeal holding that there was no difference in principle between a threat to
break a contract and a threat to commit a tort. LORD REID in his speech observed: “The respondents here used a
weapon in a way which they knew would cause him (the plaintiff) loss, and the question is whether they were
entitled to use that weapon—a threat that they would cause loss to B.O.A.C. if B.O.A.C. did not do as they wished.
That threat was to cause loss to B.O.A.C. by doing something which they had no right to do, breaking their
contracts with B.O.A.C. I can see no difference in principle between a threat to break a contract and a threat to
commit a tort..... Intimidation of any kind appears to me highly objectionable. The law was not slow to prevent it
when violence and threats of violence were the most effective means. Now that subtler means are at least equally
effective, I see no reason why the law should turn a blind eye to them.” 44
Rookes v. Barnard 45 was a case of three-party intimidation, i.e. where A coerces B to do some act harmful to C.
Three-party intimidation is to be distinguished from a two-party intimidation where A coerces B to do some act
harmful to himself. There is not much authority on two-party intimidation. In a three-party intimidation, C has
generally no cause of action except to sue for intimidation against A but in a two-party intimidation B may have
other causes of action against A in addition to intimidation. For example, if A threatens B to break a contract with
him to coerce him to do some act harmful to himself, B may repudiate the contract and sue A on the contract for
damages. Such a course is not open in a three-party intimidation. 46 To illustrate two-party intimidation, one may
take an example where A threatens to use force or violence and thereby prevents B in carrying on his business. 47
4. CONSPIRACY
4(A) General
A conspiracy is an unlawful combination of two or more persons to do that which is contrary to law, or to do that
which is harmful towards another person, or to carry out an object not in itself unlawful by unlawful means. 48 It
may consist in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. 49 But
what is more important, it may also consist in the agreement of two or more persons to do some act, not in itself
unlawful if done by one person alone, with the predominant purpose of causing harm to another. 50 In other words,
Page 6 of 18
if there is a combination of persons whose purpose is to harm another person, for example, by causing him
economic loss, this purpose itself renders unlawful in civil law acts which would otherwise be lawful. 51 This result
attracted a lot of academic controversy in England for why should an act which causes economic loss to A but is not
actionable at his suit if done by B alone become actionable because B did it pursuant to an agreement between B
and C? 52 The answer that used to be given to this question was: “A combination may make oppressive or
dangerous that which if it proceeded only from a single person would be otherwise.” 53 But this reason has in the
present circumstances become wholly unsound. As observed by LORD DIPLOCK: “But to suggest today that acts
done by one street-corner grocer in concert with a second are more oppressive and dangerous to a competitor than
the same acts done by a string of supermarkets under a single ownership or that a multinational conglomerate or
company does not exercise greater economic power than any combination of small businesses is to shut one's
eyes to what has been happening in the business and industrial world since the turn of the century.” 54 Yet the civil
tort of conspiracy to injure the plaintiff's commercial interests when that is the predominant purpose of the
agreement and of the acts done in execution of it which caused damage to the plaintiff, however anomalous it may
seem today, is too well established in English law. 55 How far this tort can be transplanted in the Indian law is yet
unsettled. 56 KRISHNA IYER, J., speaking for the Court in this context observed: “Whatever the merits of the
norms, violation of which constituted ‘conspiracy’ in English law, it is a problem for creative Indian jurisprudence to
consider, detached from anglophonic inclination, how far a mere combination of men working for furthering certain
objectives can be prohibited as a tort, according to the Indian value system.” 57 The Court, however, in this case,
proceeded to apply the English law and accepted the definition of conspiracy as given in SALMOND (15th edition,
p. 513): “A combination wilfully to do an act causing damage to a man in his trade or other interests is unlawful and
if damage in fact is caused is actionable as a conspiracy.” 58 It was also observed: “The tort of conspiracy
necessarily involves advertence to and affirmation of the object of the combination being infliction of damage or
destruction on the plaintiff.” 59 It was further observed: “Even when there are mixed motives, liability will depend on
ascertaining which is the predominant object or the true motive or the real purpose of the defendant.” Where
persons engaged in a conspiracy, and in pursuance thereof do an act which cause damage to another, they or any
one of them can be sued. The tort of conspiracy does not consist of an agreement alone, but of the agreement and
the overt act or acts causing damage. 60 The gist of the cause of action is damage to the plaintiff from acts done in
execution of the agreement. 61
If the act which injures A is not that of a single individual, but is due to a combination of two or more persons, then
motive or purpose becomes material. Thus, where several persons combine to hiss at an actor, or to ‘boycott’ a
tradesman or merchant, the element of combination is part and parcel of the wrong, since the damage could not
have occurred without it. The illegal or malicious combination is then the gist of the wrong. “In all such cases it will
be found that there existed either an ultimate object of malice, or wrong, wrongful means of execution involving
elements of injury to the public, or, at least, negativing the pursuit of a lawful object.” 62 Briefly stated, the tort of
conspiracy can be divided into two classes: (1) Where the dominant purpose is to injure a third party though the
means employed are not themselves unlawful; and (2) Where the means employed are by themselves unlawful.
4(B) Conspiracy to Injure
The purpose to injure or harm a third party must be distinguished from the purpose to advance the legitimate
interests of the persons combining together. In Mogul Steamship Co.’s case, 63 it is laid down that no action for a
conspiracy lies against persons who act in concert to advance their legitimate interests but as a necessary
consequence to damage another and do damage him, but who at the same time merely exercise their own rights by
lawful means and who infringe no rights of other people. Thus acts done by X and Y, who are acting in concert,
solely for the purpose of protecting and extending their trade and increasing their profits, and which do not involve
the employment of any means in themselves unlawful, are not actionable, even though these acts cause damage to
A. In other words, trade competition carried out to an extreme length is, even though it causes damage to A, not
actionable; provided that his competitors are acting solely with the lawful object of securing success in trade and
use no unlawful means. 64 In this case, the defendants who were shipowners trading between China and Europe,
with a view to obtain for themselves a monopoly of the homeward sea trade, formed themselves into an
association. They offered very low freights, and further offered to such merchants and shippers in China who
shipped their tea exclusively in vessels belonging to members of the association a rebate of five per cent on all
Page 7 of 18
freights paid by them. The plaintiffs who were rival shipowners and were kept out of the defendants’ association
complained that they suffered damage as the defendants by offering freights which would not repay a shipowner for
his adventure drove them (the plaintiffs) out of the field. In an action for damages alleging conspiracy to injure the
plaintiffs, it was held that since the acts of the defendants were done with the lawful object of protecting and
extending their trade and increasing their profits, and since they had not employed any unlawful means, the
plaintiffs had no cause of action. It may here be mentioned that now-a-days days, the action of the defendants,
which was held legitimate in Mogul's case, may be covered by the Restrictive Trade Practices Act, both in India and
England.
Quinn v. Leathem 65 holds that a combination of two or more persons, without justification or excuse, to injure a
man in his trade by inducing his customers or servants to break their contracts with him, or not to deal with him, or
continue in his employment is, if it results in damage to him, actionable. A person has a right to carry on his own
business, as long as he does not break the law, in the way he himself prefers. Hence, it is the legal duty of third
persons not to use intimidation or coercion towards him or his customers, with a view to prevent him from carrying
on his business in the way he chooses. 66 While combination of different persons in pursuit of a trade object is
lawful, although resulting in such injury to others as may be caused by legitimate competition in labour, yet that
combination for no such object, but in pursuit merely of a malicious purpose to injure another, would be clearly
unlawful. 67 Where the acts complained of are in pursuance of a combination or conspiracy to injure or ruin
another, and not to advance the party's own trade interests, and injury has resulted, an action will lie. 68 And this
will be so even though the acts done in pursuance of the conspiracy are not in themselves unlawful and will not be
actionable if done by individuals without the conspiracy. 69 In this case the plaintiff was a butcher and the
defendants were officials of a trade union. The defendants asked the plaintiff to discharge certain workmen who did
not belong to the Union. The plaintiff refused on which the defendants compelled the plaintiff's chief customer to
cease to deal with him by threatening that unless that was done, they would withdraw all their workmen. It was
found by the jury that the defendants had maliciously conspired to induce the plaintiff's customers not to deal with
him and so it was held that the plaintiff was entitled to sue the defendants for damages. The effect of Quinn v.
Leathem was, however, nullified so far as trade disputes are concerned by the Trade Disputes Act, 1906. 70
Sorrell v. Smith 71 lays down: (1) A combination of two or more persons wilfully to injure a man in his trade is
unlawful and, if it results in damage to him, is actionable; (2) if the real purpose of the combination is not to injure
another, but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will
lie, although damage to another ensues, provided that the purpose is not effected by unlawful means, such as
violence or threat of violence or fraud. But this case did not specifically lay down that a combination to injure can
make unlawful even acts which are otherwise lawful.
In Crofter Handwoven Haris Tweed v. Veitch , 72 it was specifically held that if there is a combination of persons to
injure the plaintiff, that purpose will make unlawful acts done in pursuance of that purpose even if they are
otherwise lawful. It was further held that a combination to do an act wilfully to cause damage to a person in his trade
or other interests is unlawful and where damage is caused in fact it is actionable as conspiracy; but where the real
and predominant purpose is to advance the defendants’ lawful interests in a matter where the defendants honestly
believe that those interests would directly suffer if the action taken against the plaintiffs was not taken, such a
combination is not unlawful. 73 The facts in this case were that the production of HARRIS TWEED in the Isle of
Lewis was carried by certain mill-owners from yarn handspun from wool by the crofters of Lewis. Some weavers in
Lewis imported yarn from the mainland. Cloth woven from imported yarn could be sold much more cheaply than
cloth made from yarn spun in Lewis. 90 per cent of the workmen employed by the Mills were members of the
Transport and General Workers Union and Lewis dockers were also members of this Union. The Union demanded
increase of wages of the workmen. The Mill-owners declined because of competition of the crofters who wove
imported yarn. The Union officials then put an embargo on the importation of yarn by ordering the dockers not to
handle such yarn. The dockers obeyed without breaking any contracts and thereby injured the business of the
producers who used imported yarn. These producers sued the Union officials for damages. The House of ords held
against the plaintiffs on the ground that the predominant purpose of the Union's decision was to benefit the Union
members and not to injure the plaintiffs.
Page 8 of 18
The plaintiff, being about to perform as an actor at a theatre, the defendants with other persons maliciously
conspired to prevent him from acquiring fame and profit in that performance. They, in pursuance of such
conspiracy, hired persons to hoot, hiss, groan and yell at the plaintiff during the performance, and they accordingly
attended the theatre for that purpose. The plaintiff appeared in character upon the stage, and thereupon the
defendants, with other persons, hissed and hooted at the plaintiff, so as to compel him to desist from the
performance and thereby caused the plaintiff to lose his engagement. It was held that a good cause of action was
shown. 74
The Calcutta High Court has held that a combination among bidders at an auction, not to bid against each other,
even if the combination amounts to a ‘knock out’, does not give rise to an action. 75 FLETCHER, J., differed from a
previous decision in which it was held that there was a distinction between an honest combination among intending
purchasers and a dishonest concert for the suppression of all competition. MOOKERJEE, J., in an earlier decision,
76 had observed: “The test, in each case, is what was the object of the agreement among the bidders; it is the end
to be accomplished which determines whether a combination is lawful or otherwise. If the object be to obtain the
property at a sacrifice by artifice, the combination is fraudulent; if the object be to make a fair bargain or even to
divide the property for the accommodation of the purchasers, the combination cannot be said to be fraudulent.”
The Supreme Court of India in Rohtas Industries Ltd. v. Rohtas Industries Staff Union , 77 held that if the object of
a strike by workmen belonging to a Union is to bring the employer to terms with the employees or to bully the rival
Trade Union into submission, there cannot be an actionable combination in tort although the strike is illegal under
the Industrial law.
The cases discussed above illustrate and bring out that what is required is that the combiners should have acted in
order that (not with the result that, even the foreseeable result ) the plaintiff should suffer damage. If they did not act
in order that the plaintiff should suffer damage, they are not liable, however selfish their attitude and however
inevitable the plaintiff's damage may have been. 78
As the tort of conspiracy to injure by unlawful means is not complete without pecuniary loss, any damages at large
had to be referrable to the act causing the pecuniary loss which constituted the tort. 79 Damages for injury to
reputation or business reputation or injury to feelings can only be recovered in action for defamation and not in an
action for conspiracy to injure by lawful means. 80
4(C) Unlawful means conspiracy
If a combination of persons uses unlawful means to achieve their object and damage results to the plaintiff, he will
be no doubt entitled to sue the persons combining for conspiracy if their predominant purpose was to injure the
plaintiff. Further, if the unlawful means employed by the combiners are themselves actionable by the plaintiff, even
without the combination, the plaintiff will be entitled to sue the persons combining as joint tort-feasors for the
damage caused to him without taking the aid of the tort of conspiracy. But what happens when the means
employed are not actionable though they are unlawful? The answer given to this question by the Supreme Court of
India, 81 and the House of Lords, 82 is that cpersons combining to use such unlawful means cannot be sued for
conspiracy by the plaintiff suffering damage unless the purpose of the combination was to injure him. But the
purpose to injure the plaintiff need not be the predominant purpose if unlawful means are used; it is sufficient if it is
one of the purposes. 83
In Rohtas Industries v. Rohtas Industries Staff Union , 84 the facts were that the workmen of two industrial
establishments (appellants before the Supreme Court) went on strike. The strike was illegal under Section 23 o 24
of the Industrial Disputes Act, as conciliation proceedings were pending. Section 26 of the Act provides for
prosecution for starting and continuing an illegal strike. The question before the Supreme Court was whether the
workmen were liable to pay compensation to the management for the loss caused during the period of strike. The
Supreme Court held that illegal strike is a creation of the Act and prosecution under section 26 of the Act is the only
remedy which can be availed of and no relief of compensation can be claimed.85 It was further held that as the
object of the strike was not the infliction of damage or destruction on the management, but to bring the employer to
terms with the employees or to bully the rival trade union into submission it was not actionable as a conspiracy even
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though it was illegal. 86 It may be noted that here the strike was the means adopted by the workmen for achieving
their object. The strike was illegal, though not actionable; so it can be said that the means adopted was unlawful.
Yet, it was held that the tort of conspiracy was not made out for the object of the combiners was not to harm the
management but to benefit themselves.
In Lonrho Ltd. v. Shell Petroleum Co. Ltd ., 87 the House of Lords had to consider a claim for damages for breach
of statutory sanctions to stop supply and delivery of oil to Southern Rhodesia which was punishable as a criminal
offence. It was held, that the sanctions could not be said to be imposed for the benefit or the protection of any
particular class of persons or to create a public right to be enjoyed by the subjects of the Crown, and therefore, the
violation of the sanctions could not give rise to any claim for damages. As regards the tort of conspiracy, it was held
that the purpose of the respondents in entering into any agreement to contravene the sanctions was to further their
own commercial interests rather than to injure the appellants and there could be, therefore, no claim against the
respondents in conspiracy. In this case again, the means adopted by the combiners was unlawful, though not
actionable, yet the claim in conspiracy failed as the dominant purpose of the combiners was not to harm the
appellants but to benefit themselves.
The House of Lords recently clearly held that when conspirators intentionally injure the plaintiff and use unlawful
means to do so, it is no defence for them to show that their primary or predominant purpose was to further or
protect their own interests; it is sufficient to make their action tortious that the means used were unlawful and their
was intent to injure the plaintiff. 88
More recently the House of Lords held that the Revenue and Customs Commissioners could take recourse to
unlawful means conspiracy and claim damages when the defendant was involved in a number of carousel (or intra-
European Community missing trader) frauds for evading payment of VAT (Value Added Tax) even if the
Commissioners could not recover the same under the statutory tax regime. 89
4(D). Interference with Trade, Business or occupation by unlawful means
The English law does not recognise an innominate tort of the nature of an “action for damages upon the case”
available to “a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and
positive acts of another.” 90 But it does recognise a tort of “interfering with the trade or business of another person
by doing unlawful acts.” 91 Indeed, the tort of procuring of another person to break a subsisting contract is but one
species of the wider tort of interfering with trade or business. 92 The tort may also cover occupations in addition to
trade or business. An action will thus lie if a man threatens the tenants of another, whereby they depart from their
tenures or if he threatens the workmen or customers who come to his stone-pit. 93 Similarly, an action lay when
the defendant fired guns near a decoy for catching wild fowls owned by the plaintiff to frighten wild fowls away from
it. 94 The ambit of this tort is yet not clear. 95 It seems that it is necessary to prove that the unlawful act was
directed against the plaintiff or was intended to harm him. 96 Some uncertainty in the application of this tort is likely
to result because of ambiguity of ‘unlawful’ acts. It appears that the violation of a statutory prohibition will not in this
context be construed as unlawful if the statute creating the prohibition provides for a remedy, e.g., prosecution for
an offence and intends that the remedy so provided should be treated as exclusive. 97
5 REJECTION OF UNIFIED THEORY OF ECONOMIC TORTS AND

RECOGNITION OF ‘CAUSING LOSS BY UNLAWFUL MEANS’ AS AN
INDEPENDENT TORT
Present English Law
The torts of ‘Interference with subsisting contract’, ‘Intimidation’ and ‘Interference with Trade, Business or
occupation by unlawful means’ as discussed above can now be placed under two heads namely (1) ‘Inducing
Page 10 of 18
breach of contract (Lumley v. Gye 98 tort ) and (2) ‘causing loss by unlawful means’. The unified theory which
treated inducing breach of contract as one species of a more general tort of actionable interference with contractual
rights and thereby covered even cases of interference with contracts by unlawful means has now been rejected and
‘causing loss by unlawful means’ has been recognized as an independent tort by the House of Lords in OBG v.
Allan 1 .
To be liable for inducing a breach of contract (Lumley v. Gye tort ) the requisites are : (1) The defendant must have
known that he was inducing a breach of contract. It is not enough that the defendant knew that he was procuring an
act which, as a matter of law or construction of the contract is a breach. He must actually realize that it will have that
effect. But knowledge that the defendant was inducing a breach of contract may be imputed if he deliberately
disregards facts which he had means of knowledge to inquire into. (2) The defendant must have intended to
procure a breach of contract. When the defendant knowingly causes a breach of contract, it does not matter that it
is the means by which he intends to achieve some further and normally economic advantage to himself. But if the
breach of contract is neither an end in itself nor a means to an end but merely a foreseeable consequence the
defendant may not be liable. In other words the claimant must have been targeted or aimed at. And (3) finally there
must have been a breach of contract and a person cannot be made liable for inducing a breach unless there has
been a breach. 2
The ingredients of the tort of causing loss by unlawful means are (a) a wrongful interference with the actions of a
third party in which the claimant has an economic interest and (b) an intention thereby to cause loss to the claimant.
Acts against a third party will count as unlawful means only if they are actionable by the third party. The qualification
is that they will also be unlawful means if the only reason why they are not actionable is because the third party has
suffered no loss. In other words unlawful means consists of acts intended to cause loss to the claimant by
interfering with the freedom of a third party in a way which is unlawful as against that third party and which is
intended to cause loss to the claimant. It does not include acts which may be unlawful against a third party but
which do not affect his freedom to deal with the claimant. 3
The tort of causing loss by unlawful means differs from the Lumley v. Gye principle as originally formulated in at
least four respects. First , unlawful means is a tort of primary liability, not requiring a wrongful act by anyone else,
while Lumley v. Gye created accessory liability, depending upon the primary wrongful act of contracting party.
Secondly , unlawful means requires the use of means which are unlawful under some other rule (independently
unlawful) whereas liability under Lumley v. Gye requires only the degree of participation in the breach of contract
which satisfies the general requirements of accessory liability for the wrongful act of another person. Thirdly ,
liability for unlawful means does not depend upon the existence of contractual relations. It is sufficient that the
intended consequence of the wrongful act is damage in any form. Fourthly , although both are described as torts of
intention the results which the defendant must have intended are different. In unlawful means the defendant must
have intended to cause damage to the claimant. Because damage to economic expectations is sufficient, there
need not have been any intention to cause a breach of contract or to interfere with contractual rights. Under Lumley
v. Gye on the other hand an intention to cause a breach of contract is both necessary and sufficient. Necessary,
because this is essential for liability as accessory to the breach. Sufficient because the fact that the defendant did
not intend to cause damage, or even thought that the breach of contract would make the claimant better off, is
irrelevant. 4
As a result of the recognition of the tort of ‘causing loss by unlawful means’ as a separate tort and confining the tort
of ‘inducing the breach of contract’ to the Lumley v. Gye tort, all cases earlier coming under the heads of torts of
‘intimidation’ and ‘interference with trade or business or occupation means’ can now be seen as a variant of and will
fall under the tort of ‘causing loss by unlawful means’. Further, this new tort will also cover those cases earlier
coming under the tort of ‘interference with subsisting contract’ in which the defendant is sued not as accessory to
the party committing the breach of contract but for his primary liability for acts which are independently unlawful.
In OBG v. Allan the House of Lords heard three appeals mainly concerned with claims in tort for economic loss
caused by intentional acts. These three appeals for brevity will hereinafter be referred as O.V.A., D.V.H. and M.V.Y
.
Page 11 of 18
In O.V.A. the defendants were receivers purportedly appointed under a floating charge which was admitted to have
been invalid. Acting in good faith, they took control of the claimant company's assets and undertaking. The claimant
brought proceedings contending inter alia that that was an unlawful interference with its contractual relations. It was
held that the requirements for liability under each of the two possible causes of action, inducing a breach of contract
(Lumley v. Gye ) in a way which created accessory liability or causing loss by unlawful means had not been
satisfied. There had been no breach or non-performance of any contract and therefore no wrong to which
accessory liability could attach; and the receivers had neither employed unlawful means nor intended to cause the
claimant any loss.
In D.V.H. , the magazine OK contracted for the exclusive right to publish photographs of a celebrity wedding. A rival
magazine Hello , published photographs which it knew were secretly taken by an unauthorized photographer. OK
claimed that this was interference by unlawful means with its contractual or business relations or a breach of its
equitable right to confidentiality in photographic images ofthe wedding. OK succeeded in the House of Lords on the
ground of breach of obligation of confidentiality but not under the tort of causing loss by unlawful means.
In M.V.Y. two employees of a property company in breach of their contracts diverted a development opportunity to a
joint venture in which they were interested. The defendant knowing of their duties but wrongly thinking that they
would not be in breach facilitated the acquisition by providing finance. The company claimed that he was liable for
the tort of wrongfully inducing breach of contract. The finding of fact was that the employees were in breach of
contract but the defendant had not intended to procure such a breach. On this finding it was held that the condition
for accessory liability under Lumley v. Gye tort was not satisfied and there was also no question of causing loss by
unlawful means.
1
Daly v. General Steam Navigation Co ., (1980) 3 All ER 696 (CA).

2
Jones Bros . (Hunstanton ) v. Stevens, (1955) 1 QBB 275 (282) : (1954) 3 WLR 953; Best v. Samuel Fox &
Co ., (1952) AC 716 (728, 733) : (1950) 2 All ER 798; Att. General (N.S.W.) v. Perpetual Plaster Co. Ltd .,
(1953) AC 457 (PC) (482) : (1955) AC 457; Pritchard v. Pritchard & Sons , (1967) p. 195 (209).
3
(1979) 42 MLR 249.
4
Shobha Ram v. Tika Ram , (1936) ILR 58 All 903; Muhammad Ibrahim v. Gulam Ahmed , (1864) 1 BHC
236.
5
Dinbandhu Mandal v. Mahendranath Mandal , AIR 1988 Ori 183 [LNIND 1987 ORI 130].
6
Quinn v. Leathem, (1901) AC 495, 510; : 65 JP 708 : 17 TLR 749; Glamorgan Coal Co. v. South Wales
Miners’ Federation, (1903) 2 KB 545, 576. In Sitaram v. Baldeo , AIR 1958 MP 367, it was held that no
action lies for dissuading one from performing a contract which is contrary to public policy, e.g. a contract to
serve on a meagre sum of Rs. 2 per month for about 112 months.
7
South Wales Miners’ Federation v. Glamorgan Coal Co ., (1905) AC 239 : 92 LT 710 : 21 TLR 441;
Pandurang v. Nagu , (1906) 8 Bom LR 610 [LNIND 1906 BOM 69] : ILR 30 Bom 598.
8
(1853) 22 LJQB 463 : 118 ER 749.
Page 12 of 18
Ibid .
10
Ibid. For comments see David Howarth ‘Against Lumley v. Gye’ (2005) 68(2) MLR 195-232.
11
D.C. Thomson & Co. Ltd. v. Deakin, (1952) 1 Ch 646 : (1952) 2 All ER 361
12
Torquay Hotel Co. Ltd. v. Covsins, (1969) 2 Ch 106 (138); (1969) 1 All ER 522 (CA) (530); Merkur Island
Shipping Corporation v. Laughton , (1983) 2 All ER 189 (HL) (195) : (1983) 2 WLR 778.
13
Greig v. Insole , (1978) 3 All ER 449, (486) : (1978) 1 WLR 302.

14
D.C. Thompson & Co. Ltd. v. Deakin, (1952) Ch 646 (686) : (1952) 2 All ER 361. Also see, Torquay Hotel
Co. Ltd. v., Covsins, (1969) 2 Ch 106, (125) : (1969) 2 WLR 289.
15
Ibid .
16
D.C. Thompson & Co. Ltd. v. Deakin, (1952) Ch 646 (678, 694-696) : (1952) 2 All ER 361.
17
Ibid ., p. 702; B.M.T.A. v. Salvadori, (1949) Ch 556.

18
As stated by JENKINS, L.J. in D.C. Thompson & Co. Ltd. v. Deakin, (1952) Ch 646, (697) : (1952) 2 All ER
361 and as modified by LORD DIPLOCK in Merkur Island Shipping Corpn. v. Laughton , (1983) 2 All ER
189 (HL) (195, 196) : (1983) 2 AC 570.
19
(1983) 2 All ER 189 : (1983) 2 AC 570 (HL).

20
Ibid ., p. 194.
21
Greig v. Insole , (1978) 3 All ER 449, (484, 485) : (1978) 1 WLR 302.
22
Emerald Construction Co. Ltd. v. Lawthien, (1966) 1 WLR 691 : (1966) 1 All ER 1013; Greig v. Insole ,
supra, p. 487.
23
Merkur Island Shipping Corpn. v. Laughton , (1983) 2 All ER 189 (HL) (196).
24
Page 13 of 18
Greig v. Insole , (1978) 3 All ER 449, (484, 485).

25
Joe Lee Ltd. v. Lord Dalmeny, (1927) 1 Ch 300; Greig v. Insole , supra, p. 485; Sitaram v. Baldeo , AIR
1958 MP 367 .
26
D.C. Thompson & Co. Ltd. v. Deakin , (1952) 2 All ER 361 (384); Emerald Construction Co. Ltd. v.
Lowthian , (1966) 1 All ER 1013 (1019).
27
Allen v. Flood, (1898) AC 1 : 77 LT 717 (HL).

28
Greig v. Insole, supra, pp. 485, 486.

29
South Wales Miners’ Federation v. Glamorgan Coal Co. Ltd ., (1905) AC 239 (HL), p. 246 : 92 LT 910 : 21
TLR 441; Greig v. Insole, supra, pp. 485, 491.
30
Glamorgan Coal Co. Ltd. v. South Wales Miners ’ Federation, (1903) 2 KB 545 (573) : 53 WR 593
(ROMER, L.J.); Greig v. Insole, supra, p. 491.
31
Mogul Steamship Co. v. Mcgregor Gow & Co ., (1899) 23 QBD 598, (618, 619) (BOWEN, L.J.).
32
Glamorgan Coal Co. Ltd. v. South Wales Miners’ Federation, (1903) 2 KB 545 (574, 575) : 53 WR 593;
Greig v. Insole, supra, p. 491.
33
Ibid.
34
South Wales Miners’ Federation v. Glamorgan Coal Co ., (1905) AC 239 : 92 LT 910 (HL) affirming (1903)
2 KB 545.
35
Edwin Hill & Partners (a firm) v. First National Finance Corp. Plc ., (1988) 3 All ER 801 (CA).
36
Ibid , pp. 805, 806.

37
Ibid, p. 806 .
38
Ibid , pp. 806, 807.

39
Page 14 of 18
Ibid , pp. 807, 808.

40
(2005) 79 ALJR 217.
41
(1898) AC 1 : 14 TLR 125 (HL).

42
(1964) AC 1129 : (1964) 2 WLR 269 : (1964) 1 All ER 367.

43
Ibid.
44
(1964) AC 1129 : (1964) 2 WLR 269 : (1964) 1 All ER 367.

45
Ibid.
46
WINFIELD JOLOWICZ, Tort, 12th edition, p. 522.
47
Rookes v. Barnard, (1964) AC 1129, p. 1205.

48
Per LORD BRAMPTON in Quinn v. Leathem, (1901) AC 495 (528). Mogul Steamship Co. v. Mcgregor,
Gow & Co ., (1892) AC 25; Allen v. Flood, (1898) AC 1.
49
Per WILLES, J., In Muleahy v. The Queen , (1868) LR 3 HL 306 (317). In such a proceeding it is necessary
for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without
just cause of excuse : Sweeney v. Coote, (1907) AC 221.
50
Quinn v. Leathem, (1901) AC 495 (HL) (538) : 50 WR 139 : 17 TLR 749

51
Ibid ; Crofter Hand-Woven Harris Tweed Co. v. Veitch, (1942) AC 435 : (1942) 1 All ER 142 (HL).
52
Lonrho Ltd. v. Shell Petroleum Co. Ltd ., (1981) 2 All ER 456 (HL) (464) : (1981) 3 WLR 33; Gulf Oil (GB)
Ltd. v. Page , (1987) 3 All ER 14 (CA), p. 19.
53
Ibid , citing BOWEN, LJ in Mogul case, (1889) 23 QBD 598 (464).

54
Ibid.
55
Page 15 of 18
Ibid ; Gulf (GB) Ltd. v. Page, supra .

56
Rohtas Industries Ltd. v. Rohtas Industries Staff Union, (1976) 2 SCC 82 [LNIND 1975 SC 523] (93) : AIR
1976 SC 425.
57
Ibid .
58
Ibid , p. 94.
59
Ibid , p. 95.
60
Marrinan v. Vibart , (1962) 1 All ER 869. Confirmed in appeal in (1962) 3 All ER 380 : (1963) 1 QB 528 :
(1962) 3 WLR 912.
61
Lonrho Ltd. v. Shell Petroleum Co. Ltd ., (1981) 2 All ER 456 (HL) (463); Quinn v. Leathem, (1901) AC 529
: 50 WR 139; Vacher & Sons Ltd. v. London Society of Compositors, (1913) AC 107 (122). See, Weston v.
Peary Mohan Dass , (1912) ILR 40 Cal 898.
62
PER LORD FIELD, in Mogul Steamship Co. v. Mcgregor, (1892) AC 25 (52). A mere conspiracy to injure a
man, without an overt act resulting in the injury does not furnish any cause of action. A conspiracy is not
illegal unless it results in an act done which by itself would give a cause of action: Templeton v. Laurie ,
(1900) 2 Bom LR 244 (623) : ILR 25 Bom 230. Malice is essential to the giving of a good cause of action :
Khimji Vasanji v. Narsi Dhanji , (1914) 17 Bom LR 225.
63
(1892) AC 25.
64
(1892) AC 25, pp. 40, 44, (LORD WATSON), p. 59, (LORD HANNEN): and (1889) 23 QBD 613 (614)
(BOWEN, L.J.). See, Ware and De Freville Ltd. v. Motor Trade Association, (1921) 3 KB 40, where it was
held that publication of the plaintiff's name in the stop list done bona fide in the protection of trade interest
of the members of the association was not unlawful.
65
Quinn v. Leathem, (1901) AC 495 : 65 JP 708 : 17 TLR 749.

66
Ibid , pp 536-38, (LORD LINDLEY).

67
PER LORD SHAND in Quinn v. Leathem, supra, p. 512; Allen v. Flood, (1898) AC 1 : 77 LT 717 : 14 TLR
125. See , Pratt v. British Medical Association, (1919) 1 KB 244 : 190 LT 41 : 35 TLR 14, and its criticism in
Ware and De Freville Ltd. v. Motor Trade Association, (1921) 3 KB 40.
68
Page 16 of 18
Quinn v. Leathem, supra , p. 513.

69
Quinn v. Leathem, supra , p. 511, 529, 530, 538.

70
6 Edw. VII, c. 47. This Act declares that an action against a trade union in respect of any tortious act
alleged to have been committed by or on behalf of the trade union shall not be entertained by any Court.
Section 1 of this Act provides that an act done in pursuance of an agreement or combination by two or
more persons shall if done in contemplation or furtherance of a trade dispute, not be actionable unless the
act, if done without such agreement or combination, would be actionable. Section 2 legalises “peaceful
picketing.” Section 1 encroaches upon the law as laid down in Quinn v. Leathem . Section 3 takes away the
actionable character of any act done by a person in contemplation or furtherance of a trade dispute if the
ground of action is only that what was done induced another person to break a contract of employment or
was an interference with the trade, business, or employment of another person, or with his right to dispose
of his capital or his labour as he pleases. Section 4 enacts that an action against a trade union in respect of
any tortious act shall not be entertained by any Court. See, Vacher & Sons Ltd. v. London Society of
Compositors, (1913) AC 107 : (1911-13) All ER 241. See Conway v. Wade, (1909) AC 506, where it is held
that if there is no trade dispute an action for damages will lie for inducing the plaintiff's employers to dismiss
him.
71
(1925) AC 700 : 133 LT 370 : 41 TLR 529, PER LORD CAVE, L.C., pp. 712-714; Imperial Tobacco Co. v.
A. Bonnan, (1927) 46 CLJ 455.
72
(1942) AC 435 : 58 TLR 125 : (1942) 1 All ER 142.

73
Ibid , pp. 444, 446, 451, 464.

74
Gregory v. Duke of Brunswick , (1844) 6 M & G 205.

75
Jyoti Prakash Nandi v. Jhowmull Johurry, (1908) ILR 36 Cal 134; Mahomed v. Savvasi, (1899) 2 Bom LR
640 : 27 IA 17 : ILR 23 Mad 227 (PC); Bhagwant v. Gangabisan, (1940) 42 Bom LR 750 : ILR (1941) Bom
71.
In England certain bidding agreements are declared illegal by the Auctions (Bidding Agreements) Act, 1927
(17 & 18 Geo. V, c. 12).
76
Ambika Prasad Singh v. R.H. Whitewell and Sitaram Singh, (1907) 6 CLJ 111, 115. See, Mahomed v.
Savvasi , (1900) 2 Bom LR 640 (643) : 27 IA 17 : ILR 23 Mad 227 (PC); Maung Sein Htin v. Chee Pan
Ngaw , ILR (1925) 3 Ran 275.
77
(1976) 2 SCC 82 [LNIND 1975 SC 523] (95) : AIR 1976 SC 425.

78
WINFIELD & JOLOWICZ, Tort, 12th edition, p. 528.
Page 17 of 18
79
Lonrho plc. v. Fayed , (1994) 1 All ER 188 (CA).

80
Ibid.
81
Rohtas Industries Ltd. v. Rohtas Industries Staff Union, (1976) 2 SCC 82 [LNIND 1975 SC 523] : AIR 1976
SC 425.
82
Lonrho Ltd. v. Shell Petroleum Co. Ltd ., (1981) 2 All ER 456 : (1982) AC 173 : (1981) 3 WLR 33 (HL).
83
Lonrho PLC v. Fayed, (1991) 3 WLR 188 (HL).

84

85
Ibid , pp 96, 97.

86
Ibid , p 95.
87
(1981) 2 All ER 456 : (1982) AC 173 : (1981) 3 WLR 33 (HL).

88
Lonrho PLC v. Fayed, (1991) 3 WLR 188 (HL).

89
Revenue and Customs Commissioners v. Total Network SL , (2008) 2 All ER 413 (H.L.).
90
Lonrho Ltd. v. Shell Petroleum Ltd ., (1981) 2 All ER 456 (HL), p. 463 : (1982) AC 173 : (1981) WLR 33.
See further , Chapter 1, title 4, text and notes 40 to 43, pp. 22, 23, ante .
91
Merkur Island Shipping Corpn. v. Laughton , (1983) 2 All ER 189 (HL) (196) : (1983) 2 AC 570 : (1983) 2
WLR 778; J.T. Straford & Son Ltd. v. Lindley, (1965) AC 169 (HL) pp. 324, 329 : (1964) 3 WLR 102.
92 Merkur Island Shipping Corpn. v. Laughton, supra, pp. 196, 197.

92
Merkur Island Shipping Corpn. v. Laughton, supra, pp. 196, 197.

93
Com Dig A 6; Bell v. The Midland Ry. Co ., 2 Ld Raym 938; Tarleton v. M. Gawley , 170 ER 153; Garret v.
Taylor , 79 ER 485.
Page 18 of 18
94
Carrington v. Taylor , 103 ER 1126; Keeble v. Hickeringill , 103 ER 1127.

95
Lonrho Plc. v. Fayed , (1989) 2 All ER 65 (CA).

96
Ibid.
97
Rohtas Industries v. Rohtas Industries Staff Union, (1976) 2 SCC 82 [LNIND 1975 SC 523] : AIR 1976 SC
425; Lonrho Ltd. v. Shell Petroleum Co. Ltd ., (1981) 2 All ER 456 : (1981) 3 WLR 33 (HL). These cases
have been discussed earlier in this Chapter under title 4 (C).
98
118 ER 249 : (1843-60) All ER Rep. 208.
1
(2007) 4 All ER 545.
2
Ibid, paras 40 to 44.

3
Ibid, paras 47, 49, 50.

4
Ibid , para 8.
End of Document
CHAPTER XV TORT TO REALITY OR IMMOVABLE PROPERTY
1. INTRODUCTION
Torts affecting immovable property arise either by disturbance or usurpation of the right to hold or possess it,
whether such disturbance or usurpation be present or in expectation (e.g., trespass, dispossession); or by actual
physical damage to the property (e.g., waste); or by interference with, or impairing of, the enjoyment of it (e.g.,
nuisance).
2. TRESPASS TO LAND
2(A) General
Trespass , in its widest sense, signifies any transgression or offence against the law of nature, of society, or of the
country, whether relating to a man's person or to his property. But the most obvious acts of trespass are—(1)
trespass quare clausum fregit “because he (the defendant) broke or entered into the close” or land of the plaintiff;
and (2) trespass de bonis asportatis , wrongful taking of goods or chattels. Here we are concerned with the former,
i.e., trespass to land.
Trespass to land is also an offence under the Indian Penal Code (s. 441) provided the requisite intent is present.
To constitute the wrong of trespass neither force, nor unlawful intention, nor actual damage, nor the breaking of an
enclosure is necessary. “Every invasion of private property, be it ever so minute, is a trespass.” 1
Trespass may be committed (1) by entering upon the land of the plaintiff, or (2) by remaining there, or (3) by doing
an act affecting the sole possession of the plaintiff, in each case without justification.
(1) Entry is essential to constitute a trespass.
A man is not liable for a trespass committed involuntarily, but he is liable if the entry is intentional, even
though made under a mistake, e.g., if, in mowing in his own land, a man inadvertently allows his blade to
cut through into his neighbour's field, he is guilty of a trespass. 2 Notwithstanding the decision of Court of
Appeal in Letang v. Cooper , 3 approving Fowler v. Lanning , 4 which lays down that intention is a
necessary element to constitute trespass to person, 5 it is still the law that an entry upon another's land
constitutes trespass to land whether or not the entrant knows that he is trespassing. 6 If the defendant
consciously enters upon a land believing it to be his own but which turns out to be of the plaintiff, he is liable
for trespass. But a person is not liable if the entry is involuntary, e.g., when he is thrown upon the land by
someone else. 7 In such a situation, there is no act of entry at all by the defendant. It is also possible that
the defendant may successfully plead inevitable accident in his defence. 8
Page 2 of 77
The presumption is that he who owns the surface of land owns all the underlying strata. So an entry,
beneath the surface at whatever depth, is an actionable trespass at the instance of the owner of surface. 9
But it is possible that the underlying strata may be in possession of a different person, e.g., when mining
rights are held by a person who is not in possession of the surface. So if the surface of land is in
possession of A and the subsoil in possession of B, entry on the surface will be trespass against A and
entry in the subsoil will be trespass against B, e.g., a tunnel dug from the adjoining land; 10 and in case of
a vertical hole dug on the land that would be trespass both against A and B.
If a person, who has a limited right of entry upon land, exceeds that right, he is a trespasser. If a man uses
the land over which there is a right of way, for any purpose, lawful or unlawful, other than that of passing
and re-passing, he is a trespasser. 11
The Government may be sued by the owner of the land for damages for alleged trespass before title to the
property is validly acquired under the scheme of the Land Acquisition Act, 1894. An irregular or illegal entry
upon land before declaration under s. 6 of the Act or before possession is taken by the Collector, will
furnish a cause of action for a separate suit for damages.12
If a servant of a licensee under an Electricity Act enters on the consumer's premises in spite of objection,
the licensee and the servant become liable for damages for trespass. 13
Excess of ordinary user of highway amounts to trespass . The plaintiff was possessed of land which was
crossed by a highway. A trainer of race-horses had agreed with the plaintiff for the use of some of his land
for the training and trial of race-horses. A view of the land so used could be obtained from the highway on
the plaintiff's land. The defendant, a proprietor of a publication which gave accounts of the doings of race-
horses in training, walked backwards and forwards on a portion of the highway abutting on the plaintiff's
land about fifteen yards in length for an hour and a half watching and taking notes of the trials of race-
horses on the plaintiff's land. In an action for trespass it was held that the defendant had exceeded the
ordinary and reasonable user of a highway as such to which the public were entitled and was liable for
trespass. 14 Public streets, including pavements, are primarily dedicated for public use for the purpose of
passage and cannot be used for private residence; 15 or for carrying on private trade or business; 16 or
as a prayer ground by a certain community. 17 The municipal corporation or the municipality concerned
has in such cases statutory power to remove the obstruction which will amount to trespass. 18
(2) If a person who has lawfully entered on the land of another remains there, after his right of entry has
ceased, he commits trespass. A licensee whose licence has been terminated or is extinguished by expiry
can be sued as a trespasser if he does not vacate after request and lapse of a reasonable time. 19
(3) Every interference with the land of another, e.g., throwing stones or materials over a neighbour's land, is
deemed constructive entry and amounts to trespass.
Deliberate placement of matter, e.g., jettisoning of oil, in such circumstances, as will carry it to the land of
the plaintiff by natural forces, may constitute trespass. 20 The matter may not be tangible; it may be gas 21
or invisible fumes. 22
A trespass may be committed by driving a nail into a person's wall, 23 or by placing anything against his
wall, 24 or by shooting over his land, 25 or by placing anything above and overhanging his land, 26 or by
planting trees in his land, 27 or placing any chattel upon his land, 28 or causing any physical object or
noxious substance 29 to cross the boundary of his land. But trespass of the nature described above must
be distinguished from private nuisance which resembles trespass. The distinction is important for trespass
is actionable per se whereas nuisance is actionable only on proof of damage. The distinction lies in the
nature of the injury whether it is direct or consequential. If the injury is direct, it is trespass; whereas, if the
injury to the plaintiff is consequential it is a case of nuisance. If a person throws stones on the neighbour's
land, it is trespass. 30 If a person plants a tree on his land the roots of which after some years undermine
the foundation of the neighbour's building, it is nuisance. 31 Discharge of filthy water on plaintiff's land from
a spout in defendant's house is trespass. 32
2(B) Aerial Trespass

Page 3 of 77
The owner of land is entitled to the column of air space above the surface ad infinitum . The ordinary rule of law is
that whoever has got the solum —whoever has got the site—is the owner of everything up to the sky and down to
the centre of the earth. An ordinary proprietor of land can cut and remove a wire placed at any height above his
land. 33 At least in modern times, this is an overstatement. The correct view is that the owner's right to air and
space above his land is restricted to such height as is necessary for the ordinary use and enjoyment of his land and
the structures on it. 34 If the rule were as used to be stated earlier, it would lead to the absurdity of a trespass at
common law being committed by a satellite everytime it passes over a suburbun garden. 35 If a man were to erect
a building overhanging the land of another, he would commit trespass and an action would lie against him. 36
Advertising sign.— An advertising sign erected by the defendants projected into the airspace above the plaintiff's
single-storey shop. In an action for a mandatory injunction to remove the sign on the ground of trespass, the
defendants alleged, inter alia , that an invasion of superincumbent airspace did not amount to a trespass, but only
to nuisance, and that, in the facts, no nuisance existed. It was held that the projection into plaintiff's airspace was a
trespass and not a mere nuisance, and it was a proper case in which to grant a mandatory injunction. 37 It has,
however, been held that where the injury to the plaintiff is trivial, no injunction will be granted. 38
An aircraft passing at a height which does not affect the owner in the enjoyment of his land and structures does not
commit any trespass. Statutes have also been enacted to clarify this law. 39 Under the Civil Aviation Act, 1949, 40
no action shall lie in respect of trespass by reason only of the flight of aircraft over any property at a height above
the ground which, having regard to wind, weather and all the circumstances of the case, is reasonable, or of the
ordinary incidents of such flight so long as certain provisions of the Act or any orders made thereunder are
observed. It is also provided that where material loss or damage is caused to any person or property on land or
water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then
unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered,
damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other
cause of action as if the loss or damage had been caused by the wilful act, neglect or default of the owner of the
aircraft. The Act does not apply to aircrafts in the service of Her Majesty.
Indian statute-law-Aerial trespass or nuisance.— There is also the Indian Aircraft Act, 41 s. 17 of which provides
that no suit shall be brought in respect of trespass or nuisance, by reason only of the flight of aircraft over any
property at a height above the ground which having regard to wind, weather, and all the circumstances of the case
is reasonable, or by reason only of the ordinary incidents of such flight. But whoever wilfully flies so as to cause
damage to person or property may be punished with imprisonment for six months or a fine of Rs. 1,000 or with both.
2(C) Continuing Trespass
Every continuance of a trespass is a fresh trespass, and an action may be brought in respect of it. The continuing of
a trespass from day to day is considered in law a separate trespass on each day. If a man throws a heap of stones,
or builds a wall, or plants posts of rails, on his neighbour's land, and there leaves them, an action will lie against him
for the trespass; and the right to sue will continue from day to day, till the encumbrance is removed. An action may
be brought for the original trespass in placing the encumbrance on the land, and another action for continuing the
things so erected. A recovery of damages in the first action, by way of satisfaction, does not operate as purchase of
the right to continue the injury. 42 A new occupier entering upon premises on which there is a continuing trespass
has a cause of action in trespass in respect of it. 43 But the principle that every continuing of trespass is a fresh
trespass has no application when there is a complete ouster. Where the wrongful act amounts to ouster or
dispossession of the plaintiff, the resulting injury is complete on the date of the ouster or dispossession and so there
would be no scope for applying the principle of continuing wrong or continuing trespass. 44
2(D) Trespass by joint-owners
Joint-tenants or tenants-in-common can only sue one another in trespass for acts done by one inconsistent with the
rights of the other. 45 Such acts are, for example, destruction of a building, 46 or chattel, carrying away of soil, 47
or expulsion of the other, 48 or his servant off the land or from the house held in common. 49
Page 4 of 77
A Court will not interfere where a tenant-in-common acts reasonably for the purpose of enjoying the property held in
common in any way in which an owner can enjoy such property without injury to his co-sharer, but the case is
different where there has been a direct infringement of a clear and distinct right. 50
Where a joint-owner or co-sharer has erected a building on joint land the Court can order its demolition. 51 But
where the act complained of is not proved to be destructive of or detrimental to the enjoyment of the joint property,
the Court will refuse to order its demolition. 52 Where a co-sharer makes construction upon common land, it is not
necessary for a co-sharer, who has not acquiesced in such construction, to prove special damage. 53
2(E) Trespass by animals
Trespass by a man's cattle is dealt with similar to trespass committed by himself. If a man's cattle, sheep, or poultry,
or any animal in which the law gives him a valuable property trespass on another's close, the owner of the animal is
responsible for the trespass and consequential damage, unless he can show that his neighbour was bound to fence
and had failed so to do. 54 But if no such duty exists, the owner of cattle is liable for their trespass even upon
unenclosed land, 55 and for all naturally resulting damage. 56
Distinction is also drawn between animals which from their natural tendency to stray and thereby do real damage,
require to be and usually are restrained, and a dog which is not usually confined. 57 Owners of dogs and cats are
not responsible for their trespass. 58 Liability for cattle trespass is strict, i.e. independent of any negligence. But
this rule has no application to straying of cattle upon a highway.
An owner or occupier of land adjoining an ordinary highway is not bound to fence it so as to prevent harmless
animals like sheep, 59 or horses, 60 or dogs 61 from straying upon the highway unless they are known to be of
vicious habit. For injury caused by horses or cattle to property on or adjoining a highway the owner is not liable in
the absence of negligence or of wilful intention on his part. 62 But a person who brings an animal on the highway
must take reasonable care to prevent it from doing damage thereon. 63 “Users of the highway, including cyclists
and motorists must be prepared to meet from time to time a stray horse or a cow just as they must expect to
encounter a herd of cattle in the care of a driver. An underlying principle of the law of the highway is that all those
lawfully using the highway, or land adjacent to it, must show mutual respect and forbearance. The motorists must
put up with the farmer's cattle; the farmer must endure the motorist. It is commonly part of a man's legal duty to his
neighbourhood to tolerate the untoward results of the neighbour's lawful acts.” 64 Where a person, responsible for
the organisation of a riding event in a Gymkhana adjacent to the highway, is in direct control of an animal with no
known vicious or mischievous propensities, which makes a rapid dash for the highway through an unattended exit,
as a reaction of its saddle and rider being displaced during such event, the activity in which the animal is engaged
may be relied on as a special circumstance displacing the general principle relating to the absence of duty to
prevent the straying of domestic animals on to the highway. 65
In India the law relating to trespass by cattle is contained in the Cattle Trespass Act, 1871 (I of 1871).66
In England the Animals Act, 1971, has swept away the common law rules relating to cattle trespass. Section 4 of
the Act lays down that the owner of trespassing livestock is strictly liable for any damage done when it strays on to
someone else's land and causes damage there. Although the liability is strict, it is necessary that there be proof of
damage or alternatively there must be expenses incurred by the owner or occupier of land either in keeping the
livestock until it can be returned to its owner or under the right of detention created by s. 7 of the Act. The immunity
for damage ensuing from straying of cattle on to the highway has been abolished in England by the Animals Act,
1971 and the question of liability is to be decided on ordinary principles of negligence. Still it is not obligatory for
adjacent owners of land to fence their land to prevent straying of cattle on to the highway if the land is in area where
fencing is not customary.
Injury by horse. —Where the defendant's horse injured the plaintiff's mare by biting and kicking her through an iron
fence, belonging to the defendant, which separated the defendant's land from the plaintiff's, it was held that there
was a trespass by the act of the defendant's horse for which the defendant was liable apart from any question of
negligence. 67 The defendant's cattle without any negligence on his part escaped on to the plaintiff's land. The
plaintiff while trying to protect her garden suffered personal injuries when one of them knocked her down. The
Page 5 of 77
defendant was held liable for the plaintiff's personal injuries as being damage naturally resulting from trespass of
cattle. 68
Injury by mare .—The plaintiff was riding his motor bicycle along the highway when a mare jumped over a hedge
bordering the highway, descended on the motor bicycle, and injured the plaintiff. The animal was unbroken, over
five years old, and had a propensity to stray, but she had not a dangerous nature. It was held that the occupier of
land bordering the highway was under no duty to prevent his animals from straying on the highway unless they
were dangerous (as e.g., owing to their frolicsome behaviour) or mischievous; the fact that the mare had a special
proclivity towards straying did not impose such a duty on the defendant, and therefore, he was under no liability to
the plaintiff. 69
Similar result followed in a case where a motor-car was involved in an accident resulting in damage to the car when
the driver lost control of the vehicle as one of the unattended sheep on the highway suddenly jumped and ran in
front of the car. 70 But there is a distinction between the liability for damage caused by domestic animals which
strayed on to the highway and damage caused by animals which had been brought on to the highway. In the latter
class of cases, the person bringing the animal on to the highway can be made liable on the ground of negligence in
not taking proper care to control the animal. So when the defendant let out a large dog on the street without a lead,
he was held liable to the plaintiff who suffered personal injury and whose van was damaged as the dog getting
excited collided with the van. 71 Similarly, when a pony and a cart belonging to the defendant were left unattended
he was held liable to the plaintiff who was bitten by the pony. 72
Damage by diseased cattle.— Where cattle affected with a contagious disorder trespassed upon an adjoining
pasture and infected other cattle there with the disease, it was held that the owner of the trespassing beasts was
responsible for the damage arising from the spread of the disease, as well as for the injury to the grass and
herbage. 73
Injury by pigeous.— The plaintiff was a breeder of racing pigeons, and the defendant was a farmer. Some of the
plaintiff's pigeons settled on the defendant's crop of peas, and did damage. The defendant, without firing a scaring
shot, shot four of them and wounded a fifth. It was held that the plaintiff was entitled to maintain an action for
damages. 74
Straying of sheep.— The defendants’ sheep strayed from L. Moor, on which the defendants had the right to pasture
them, over land belonging to the M. Corporation and thence along a road from which they gained access to the
plaintiff's land situate about a mile distant from L. Moor. In an action by the plaintiff in respect of the damage done
by the trespassing sheep, it was held that it was the defendants’ duty to see that the sheep did not escape, and that
they were liable to the plaintiff. 75
Straying of cow.— In order to protect his potato crop from trespassing pigs the defendant laid traps and left some
openings in the hedge near the traps. Plaintiff's cow strayed into the land and fell into the trap and was killed. In a
claim for damages it was held that the owner of the property will not be liable in damages to the owner of the
trespassing animal for injury to the animal merely because he had taken no precautions to protect the trespassing
animal against injury. It cannot be said that the defendant lured the cow into the trap, and therefore became liable.
76
2(F) Remedies
The person whose land is trespassed upon may—

(1) bring an action for trespass against the wrong-doer; or
(2) forcibly defend his possession against a trespasser; or
(3) forcibly eject him.
2(F)(i)Action for Trespass

Page 6 of 77
To maintain an action for trespass, the plaintiff must prove that he was in possession, either actual or constructive,
at the time of trespass. 77 Any possession is a legal possession against a wrong-doer. 78
A party having a right to the land acquires by entry the lawful possession of it, and may maintain trespass against
any person who, being in possession at the time of his entry, wrongfully continues upon the land. 79 When once
there is an entry by the person having title, the Court looks to the date when the title accrued, and considers him in
possession from that time. 80 Upon his entry his possession relates back to the date at which his legal right to
enter first accrued, and he can maintain an action for trespass committed prior to his entry. 81
An apprehended trespass furnishes no ground of action for trespass 82 but the Court may grant declaratory decree
or injunction. 83 When a person, who is prima facie liable to another, on being sued by him, sets up a defence that
the paramount title is vested in a third person, he is said to set up the jus tertii (right of a third person). The general
rule is that a wrong-doer cannot set up the jus tertii, the right of possession outstanding in some third person, as
against the fact of possession in the plaintiff. 84 If the defendant justifies his trespass on the ground that his act
was committed by the authority of the true owner, and thereby sets up jus tertii, such authority is traversable by the
plaintiff, in which case the defendant must prove that such authority was given in fact. 85
Indian law 86
The foundation of trespass is the doing of an illegal act, forcibly and without legal authority, as against the property
of another. The illegality and the wrongfulness of the act must be established by proof. 87 The rightful person is
entitled to possession irrespective of the fact whether the property has changed hands from one trespasser to
another or from trespasser himself to his successors-in-title, provided the suit is within limitation. 88 One co-sharer
can maintain an action for ejectment against a trespasser without joining other co-sharers. 89 Anyone of several
joint-tenants of land may sue to eject a trespasser. The consent of one jointtenant to the possession of a trespasser
does not make him the less a trespasser with regard to other joint-tenants. 90
The law of England that a landlord who has parted with his possession to a tenant cannot sue in trespass for
damage to the property, unless the wrongful act complained of imports a damage to the reversionary interests does
not apply to landlords in India. 91
2(F)(ii) Defence of Property
The person in possession may use force to keep out a trespasser; but, if the trespasser has succeeded in obtaining
possession, the rightful owner must appeal to the law for assistance.
2(F)(iii) Expulsion of Trespasser
A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what
the law understands by possession against the person whom he ejects, and drive him to prove his title, if he can,
without delay, reinstate himself in his former possession. 92 The righful owner of property is entitled to use force in
ejecting a trespasser so long as he does him no personal injury. 93 He must not resort to violence. 94 The right of
expulsion is, however, not available when the trespasser has been successful in accomplishing his possession to
the knowledge of the true owner who must then resort to the remedies available under the law. 95
2(F)(iv) Distress damage feasant
Distress damage feasant is a remedy by which, if cattle or other things be on a man's land encumbering it or
otherwise doing damage there, he may summarily seize them, without legal process, and retain them impounded as
a pledge for the redress of the injury he has sustained. 96 Anything animate, or inanimate, which is wrongfully
there on the land of another and is doing damage, may be distraine for such damage. For instance, greyhounds or
ferrets chasing and killing rabbits in a warren may be distrained damage feasant . A locomotive was distrained
where it was used on a railway line of a company without a certificate of the company as required by a statute. 1
This right is founded on the principle of recompense which justifies a person in retaining that which occasions injury
to his property till amends be made by the owner. The right does not give any right of sale. It can be exercised only
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by a person who has a sufficient possession of land to entitle him to maintain an action of trespass. The distress
must be taken at the time the damage is done; for, if the damage was done yesterday, and the distress taken today,
that would be illegal. 2 If, therefore, a man coming to distrain beasts damage feasant sees the beasts on his
ground, and the owner of the beasts, or his servants, chases them out to prevent the distress, he cannot distrain
them.
For damage feasant one may even distrain in the night; but a distress for rent can be made during day only.
The plaintiff's heifer strayed on to a railway line abutting on the farms of both the plaintiff and the defendant, and the
defendant, in the interest of public safety and that of the plaintiff, drove it into a stubble field. In the night it escaped
from that field and strayed into one of the defendant's fields, in which he kept a herd of T.T. Cattle. The defendant
thereupon impounded the heifer in one of his own barns. When the plaintiff's servants called to collect the heifer,
the defendant demanded “two pounds for ‘salvage’ and one shilling per day keep” as a condition of releasing the
animal. The plaintiff did not pay the amount demanded, nor did he tender any sum. The defendant continued to
detain the heifer which died some days later, though fed and watered by him. The Court inferred that the defendant
had suffered damage as the result of the straying of the plaintiff's heifer. The plaintiff claimed damages for wrongful
conversion of the heifer. It was held that the defendant had a right of distress damage feasant , and was entitled to
a lien on the heifer in respect of the damage sustained until compensation for such damage and a proper sum in
respect of the keep of the heifer was paid or tendered, that it was the duty of the plaintiff to estimate the proper
amount of compensation and to tender that amount to the defendant, and, therefore the plaintiff's claim failed. 3
The right of distress though usually exercised in respect of cattle is by no means limited to them and can be
exercised even in respect of inanimate objects which are wrongfully on the land. The distress is not rendered
wrongful because the occupier claims an excessive amount as damages. The law casts the duty upon the wrong-
doer to estimate the damage according to his own judgment and tender it before the distress can be rendered
wrongful. 4 The remedy still survives in England in respect of inanimate objects. 5 But the remedy is available to
distrain in order to recover compensation for actual damage suffered. Thus a car parked unauthorisedly which has
caused no actual damage cannot be distrained by the landowner. 6 But when a driver parks a vehicle on a land
displaying signs that unauthorised vehicles would be immobilised and a fee would be charged for their release, the
landowner would be entitled to recover the fee from the driver before releasing the vehicle on the ground that the
driver had impliedly consented to that risk. 7
It may be doubted if in India the right of distress damage feasant would be held to exist, except under express law.
But there is a special enactment, namely the Cattle Trespass Act,8 which contains special provisions regarding the
impounding of cattle taken trespassing and doing damage.
The Act enables a person on whose land cattle trespass and do damage 9 to take them to a cattle pound within 24
hours of the seizure; there is no right of further detention or sale. The owner can take back his cattle from the pound
on payment of the pound fees to the pound-keeper; he is not bound to pay any compensation for release of the
cattle to the person on whose land they were trespassing who can only sue for compensation. It is a possible view
to take that the remedy of distress damage feasant is impliedly taken away by the provisions of the Act.
2(G) Defences 2(G)(i) Exercise of easement and prescription
A defendant may plead that he was justified by reason of prescription, as by showing a right of common, or right of
way over the land; or that his right of way was wrongfully obstructed by the plaintiff, and the trespass was
necessary to avoid it. 10
2(G)(ii) Leave and Licence
A licence only makes an action lawful which without it would be unlawful. 11 It may be expressed or implied, such
as entry into a shop or a public house. If the defendant relies upon a plea of leave and licence, he must prove,
either an express permission from the plaintiff to the defendant to come upon the land, or circumstances from which
such permission may fairly be implied. 12
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A licence granted for a specific period may imply a contract not to revoke arbitrarily before the expiry of the period
and the Court may prevent premature revocation by an injunction. Generally speaking, such a case arises when the
licence is granted for a specific period for a specific purpose. 13 Where the plaintiff, who had purchased a ticket for
a seat at a cinema show, was forcibly turned out of his seat by the manager under a mistaken impression that he
had not paid for his ticket, it was held that the plaintiff was entitled to recover substantial damages. 14 This case
establishes (a) that the purchaser of a ticket for a seat at a theatre has a right to enter and stay and witness the
whole performance provided that he behaves properly and complies with the rules of the management; and (b) that
the licence granted by the sale of the ticket includes a contract not to revoke the licence arbitrarily. 15 A bare
licence normally even though for a specific period may be revoked at any time and the defendant cannot plead such
a licence after it is revoked in an action for trespass though he may be able to sue the plaintiff for damages for
breach of contract. 16 If a licence is coupled with a transfer of property or if the licensee acting upon the licence
has made a permanent construction, it becomes irrevocable 17 and can be successfully pleaded in an action for
trespass.
2(G)(iii) Authority of law
Entry under a legal process is justifiable. 18 Semayne's case 19 which is a leading authority on this subject, lays
down the following points:—
1 That the house of every one is to him as his castle and fortress, as well for his defence against injury and
violence, as for his repose.
2 When any house is recovered by any real action, the sheriff may break the house and deliver the seisin or
possession to the defendant or plaintiff.
3 In all cases, when the King is a party, the sheriff may break the other party's house, either to arrest him, or to
do other execution of the King's process, if otherwise he cannot enter. But, before he breaks it, he ought to
signify the cause of his coming, and to make request to open the door.
4 In all cases when the door is open the sheriff may enter the house, and do execution, at the suit of any
subject, either of the body, or of the goods. But it is not lawful for the sheriff at the suit of a common person
to break the defendant's house, etc. , to execute any process at the suit of any subject.
5 The house of any one is only a privilege for himself and his family and his goods and does not extend to
protect any person who flies to his house, or the goods of any other which are brought there.
An officer 20 cannot break the outer door without a demand; but after he has entered the house in which the
person or the goods of the defendant are contained he may break open any door within the house without any
further demand. If the officer is forcibly ejected, after he has peaceably obtained entrance by the outer door, he may
break open the door to re-enter. 21
In Semayne v. Gresham, two men, B and G, lived together in a house at Blackfriars as joint-tenants. B contracted
heavy debts; and one of the largest and pressing of his creditors was Semayne, to whom he “acknowledged a
recognizance in the nature of a Statute staple”. In these circumstances B died, and by right of survivorship, the
ownership of the house became vested in G. In that house were “diverse goods” of B, and to these, in virtue of the
Statute staple, Semayne not unreasonably considered himself entitled. Accordingly, he instructed the sheriffs of
London to do the best for him and these persons, armed with a proper writ, set off for Blackfriars. But when they
came to the house, G, who had come to know of this, shut the door in their faces, “whereby they could not come
and extend the same goods,” disturbing the execution. In an action brought by Semayne it was held that G had
done nothing wrong in locking the front door, and that, even when the King is a party, the house holder must be
requested to open the door before the sheriff can break his way in. 22
Indian law
As regards the first point, established in Semayne's case, there is little doubt that the law in India is in accordance
with the law laid down there. If a bailiff breaks the doors of a third person, in order to execute a decree against a
judgment-debtor, he is a trespasser if it turns out that the person or goods of the debtor are not in the house. 23 A
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Nazar or sheriff cannot break open a defendant's dwelling-house to execute civil process against his person or
goods if the outer door is closed and locked, even when he finds that the defendant has absconded to evade such
execution. The privilege extends to a man's dwelling-house, or out-house or any office annexed to the dwelling-
house, but not to a building standing at a distance from the dwelling-house and not forming part and parcel of it, 24
nor to his workshop. 25
2(G)(iv) Acts of necessity
Entry on the land of another person, without his consent, is justifiable on the ground of necessity, e.g., putting out
fire 26 for public safety, defence of the realm, etc.
2(G)(v) Self-defence
A trespass may be excused as having been done in self-defence, or in defence of man's goods, chattels, or
animals.
2(G)(vi) Re-entry on land
A person who is wrongfully dispossessed of land may retake possession of it if he can do so peaceably and without
the use of force. He will not be liable in an action for trespass to land. 27 Even if he enters forcibly he is not liable.
28 Statute 5, Rich. II, c. 7 created forcible entry an offence under it. But so far as the civil rights of the parties are
concerned the possession of a rightful owner gained by forcible entry is lawful as between the parties. If an owner
of landed property finds a trespasser on his premises, he may enter the premises and turn the trespasser out, using
no more force than is necessary to expel him, without having to pay damages for the force used. 29 He may be
punished for breach of the peace but he is not liable civilly.
Indian law
Under the Specific Relief Act,30 and in the States of Maharashtra and Gujarat under the Bombay Mamlatdars’
Courts Act 31 if one in possession of immovable property is dispossessed, otherwise than by due course of law, he
may, within six months, sue to recover possession without reference to any title set up by another, which is left to
be determined in a separate action.
The Indian Legislature has provided for the summary removal of any one who dispossesses another, whether
peaceably or not, but otherwise than by due course of law; but subject to such provisions there is no reason for
holding that the rightful owner so dispossessing the other is a trespasser, and may not rely for the support of his
possession on the title vested in him, as he clearly may do by English law. 32 So far as the Indian law is
concerned, the person in peaceful possession is entitled to retain his possession and in order to protect his
possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully
dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
33 But if the trespasser gets into ‘settled possession’ the rightful owner cannot evict the trespasser by taking the
law in his own hands or even disturb his possession. 34 The Supreme Court has laid down the following tests for
determining as to when a trespasser can be said to be in ‘settled possession’:
“(i ) The trespasser must be in actual possession of the property over a sufficiently long period;
(ii ) The possession must be to the knowledge (either express or implied) of the owner or without any attempt at
concealment by the trespasser and which contains an element of animuspossidendy . The nature of the
possession of the trespasser would, however, be a matter to be decided on facts and circumstances of
each case;
(iii ) The process of dispossession of the true owner by the trespasser must be complete and final and must be
acquiesced by the owner; and
(iv ) One of the usual tests to determine the quality of settled possession in the case of culturable land would be
whether or not the trespasser, after having taken possession had grown any crop. If the crop had been
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grown by the trespasser, then even the “true owner”, has no right to destory the crop grown by the
trespasser and take forcible possession. 35
2(G)(vii) Re-taking of goods and chattels
If a person takes away the goods of another upon his own land, he gives to the owner of them an implied license to
enter for the purpose of recaption. 36 Similarly, if the goods are on the land of another in pursuance of a felonious
act of third person, the entry will be justifiable. 37 But it will be otherwise, if the goods or chattels are on the land of
another owing to some negligent or wrongful act of the owner himself. 38
2(G)(viii) Abating a nuisance
Abatement, that is removal of the nuisance by the party injured, must be—
(1) peaceable;
(2) without danger to life or limb; and
(3) after notice to remove the same, if it is necessary to enter another's land to abate a nuisance, or where the
nuisance is a dwelling-house in actual occupation or a common, unless it is unsafe to wait.
Thus the occupier of land may cut off the overhanging branches of his neighbour's trees, or sever roots which have
spread from these trees into his own land. 39 But he cannot cut the branches if the trees stand on the land of both
parties. 40
Under the Indian Easements Act the dominant owner cannot himself abate a wrongful obstruction of an
easement.41
Penetration of roots of trees in another's land.— Where the roots of trees originally planted by defendants in their
own land had penetrated into plaintiff's land wherefrom fresh trees had sprung up and the defendants cut and
removed such trees from plaintiff's land, it was held that where the roots of a tree extended into the lands of both
owners and the tree derived its nourishment from soils of both, it became the common property of both though it
might actually stand on the land of one of them and consequently the plaintiff was entitled to half of the value of the
trees cut and removed by the defendants. 42
2(H) Damages
In an action for injury to land, the measure of damages is the diminished value of the property 43 or of the plaintiff's
interest in it, and not the sum which it would take to restore it to its original state. 44 The same act may give rise to
different injuries; the tenant may sue for the injuries to his possession and the landlord for the injuries to his
reversion. 45 Damages vary according to a party's interest in land. 46 The claim for damages includes not merely
damages for unlawful entry but also damages for the mischief which the trespasser commits after entry. 47
Acts of insult and malice are matters of aggravation, for which substantial damages would be given. 48 The owner
out of possession can sue the trespasser for mesne profits without suing for possession. 49 Damages awardable
against a wilful trespasser ought not to be less than the amount which the trespasser would have had to pay for the
use and occupation of land. 50
3. TRESPASS AB INITIO
When entry, authority or license, is given to any one by law, and he abuses it, he becomes a trespasser ab initio ,
that is, the authority or justification is not only determined, but treated as if it had never existed. His misconduct
relates back so as to make his original act tortious. The rule rests upon this—that the subsequent illegality shows
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the party to have contemplated an illegality all along so that the whole becomes a trespass. In Chick Fashions
(West Wales) Ltd. v. Jones , 51 LORD DENNING, M.R. and SALMON, L.J. have expressed doubt whether today a
man can be made a trespasser ab initio by the doctrine of relation back. But in Cinnamond v. British Airports
Authority , 52 LORD DENNING, M.R. referred to the doctrine with approval.
In the leading case of Six Carpenters 53 it is said : “The law gives authority to enter into a common inn or tavern;
so to the lord to distrain; to the owner of the ground to distrain damage feasant ; to him in reversion to see if waste
be done; to the commoner to enter upon the land to see his cattle; and such like..... But if he who enters into the inn
or tavern doth a trespass, as if he carries away any thing; or if the lord who distrains for rent, or the owner for
damage feasant , works or kills the distress; or if he who enters to see waste, breaks the house, or stays there all
night; or if the commoner cuts down a tree; in these and the like cases, the law adjudges that he entered for that
purpose; and because the act which demonstrates it is a trespass, he shall be trespasser ab initio .”
Where authority is not given by law, but by the party, and abused, then the person abusing such authority is not a
trespasser ab initio . The reason of the difference being that, in the case of a general authority, or licence of law, the
law adjudges by the subsequent act the intention with which the trespasser entered; but when the party gives an
authority or licence himself to do anything, he cannot, for any subsequent cause, punish that which is done by his
own authority or licence. Besides, when the authority is conferred by an individual it can be limited or recalled at
will, whereas the rights given by law require to be strictly protected.
The act by which a person is to be deemed a trespasser ab initio must of itself be a trespass. 54
The leading case of Six Carpenters 55 lays down three points—

(1) That if a man abuse an authority given to him by law, he becomes a trespasser ab initio .
(2) That in an action of trespass, if the authority be pleaded, the subsequent abuse may be replied.
(3) That a mere non-feasance does not account to such an abuse as renders a man trespasser ab initio .
The Calcutta High Court has held that where there is an authority given by law for doing an act, then an abuse may
(not necessarily must) turn the act into a trespass ab initio . If a police officer, whilst lawfully conducting a search,
assaults some person on the premises, his entry on the premises does not necessarily become unlawful from the
outset. 56 Similarly if police officers enter the premises for a lawful arrest and afterwards seize books, papers, and
money which could not be lawfully seized, they do not become trespassers ab initio . 57
Refusal to pay for wine in tavern.— In the Six Carpenters ’ case, six carpenters entered a tavern, “and did there buy
and drink a quart of wine, and then paid for the same.” They then gave a further order for another “quart of wine and
a pennyworth of bread, amounting to 8d.” This order was also fulfilled, but for the second supply the men refused to
pay. The question was whether this non-payment made their original entry into the tavern unlawful. The Court held
that the men did not become trespasser ab initio , because there was a mere non-feasance in refusing to pay. 58
But as already seen, the case lays down the basic principle that when an entry, authority or licence is given to
anyone by the law, and he abuses it, he shall be a trespasser ab initio from the very beginning. This principle of Six
Carpenters ’ case was applied in Cinnamond v. British Airport Authority 59 which was a case relating to six car-hire
drivers. The car drivers had their own cars. They often went to the London Heathrow Airport. They were in touch
with hotels in Central London. When a passenger wanted a car to take him to the Airport, the hotel telephoned one
of these car-drivers and he took the passenger to the Airport. These car-drivers hung about the Airport and sought
to get passengers to hire them for the drive back to London. They thus got ahead of the licensed taxi drivers who
are in the feeder parks waiting to be hired. L{ORD }D{ENNING }on these facts observed : “When one of these car-
hire drivers picks up a passenger at a London hotel and drives to the Airport, he has a right to enter so as to drop
the passenger and luggage. But the driver has no right whatever to hang about there so as to ‘tout’ for a return fare.
By so doing he is abusing the right which is given to him by the law, and that automatically makes him a trespasser
from the beginning.” 60
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Unlawful seizure of documents.— In order to effect the arrest of a person, the defendants, police-officers, entered
the plaintiff's premises. While there they seized and carried away documents found on the premises. Amongst the
documents there were some which constituted evidence on the trial of the person arrested but there were others
which did not so constitute and were subsequently returned. In an action for trespass it was held that the
defendants were only trespassers ab initio as to the documents that were seized and returned, but were not liable
for any damages in respect to the entry on the premises for the purpose of arrest. 61
Seizure of goods not within description of warrant.— In another case it was held that where a constable entered a
house by virtue of a search warrant for stolen goods, he could seize not only the goods which he reasonably
believed to be covered by the warrant but also any other goods which he believed on reasonable grounds to have
been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of
them or anyone associated with him. 62
4. DISPOSSESSION
4(A) Meaning of
Dispossession or ouster is wrongfully taking possession of land from its rightful owner. Every trespass does not
amount to dispossession. The word ‘dispossession’ applies only to cases where the person in enjoyment of land
has, by the act of some person, been deprived altogether of his dominion over the land itself, or the receipt of its
profits. 63 In order to constitute dispossession there must in every case be positive acts, which can be referred
only to the intention of acquiring exclusive control. 64 But it is not correct to say that a person who has no present
use of his land but has future plans for its use cannot be said to be dispossessed by a squatter until the squatter's
possession substantially interferes with his future plans. The fact that the true owner has no immediate use of land
is a factor to be taken into account whether the acts of user by the squatter establish actual possession coupled
with the animus to exclude the world at large including the true owner. 65 A true owner can be said to be
dispossessed when the trespasser acquires ‘settled possession’. 66 Possession implies a right and a fact. It
involves power of control and intention to control. The test for determining whether a person is in possession is
whether he is in general control of it. 67 Section 6 is not restricted to cases where a person is dispossessed from
actual physical possession. It will also apply where symbolical possession delivered by due process of law is sought
to be set at naught forthwith. 68
4(B) Remedy
The party dispossessed can bring an action to recover possession of the land.
Possession is good against all the world except the person who can show a good title. 69 It is sufficient if the
plaintiff proves a better right than the defendant's, even though it is inferior to that of some third person. 70 It will
thus appear that the possession of a wrong-doer is not a legal possession against the person ousted; and the latter,
on proving possession and ouster can succeed in ejectment against the wrong-doer. But there are English
authorities conflicting with this view which lay down that possession alone is not sufficient in ejectment (as it is in
trespass) to maintain the action; but such possession is prima facie evidence of title, and, no other interest
appearing in proof, evidence of seisin in fee. 71 This presumption cannot be rebutted merely by showing that the
plaintiff did not derive his possession from any person who had title. 72
It has been held that a licensee having right to occupation under the license, but who was not put in occupation as
trespassers were on the land, was entitled to claim possession against them. 73
There can be no doubt that jus tertii cannot be set up at all as a defence in following cases:—
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(1) Landlord and tenant.— The landlord need not prove his title but only the termination of the tenancy. Neither
a tenant nor any one claiming under him can dispute the landlord's title. 74
(2) Licensor and Licensee.— Licensees cannot dispute the title of the persons who licensed them. There is no
distinction between the case of a tenant and that of a common licensee. 75
In India,section 6 of the Specific Relief Act, 1963 enables a person who is dispossessed otherwise in due course of
law to sue within six months for recovery of possession irrespective of any question of title. In a suit under this
section, the defendant cannot set up his title to retain possession and even a person in wrongful possession can
sue the real owner who has dispossessed him otherwise in due course of law. For example, a tenant whose
tenancy has come to an end, if forcibly evicted, can sue under section 6 his landlord for recovery of possession.76
A licensee in possession can also sue under section 6 if forcibly evicted by the owner. 77 Apart from section 6, a
person dispossessed can sue under section 5 of the Specific Relief Act on the basis of his title to recover
possession. Title under section 5 includes possessory title which is valid against everyone except the real owner.
So a person in possession on being dispossessed can sue everyone except the real owner on the basis of his prior
possession within 12 years of the date of suit (12 years being the period of limitation for a suit under section 5 ) and
the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third
party.78
The Privy Council laid down in a case in which the plaintiff was a purchaser in possession and the defendant had
no title at all, that lawful possession of land is a sufficient evidence of right as owner, as against a person who has
no title whatever, and who is a mere trespasser. The former can obtain a declaratory decree and injunction
restraining the wrong-doer. 79 The Privy Council had also held that the plaintiff in an action for ejectment must
recover by the strength of his own title and not the weakness of his adversary. 80 But these decisions do not
militate against the view that a person having prior possession can sue every one except the real owner to recover
possession for possessory title is a good title against all except the owner. 81 A person recovering possession on
the basis of possessory title against a wrong-doer really succeeds on the strength of his own title and not on the
weakness of the defendant's title. It appears to be settled law that a person who has been in long continuous
possession can protect the same by seeking an injunction against any person in the world other than the true
owner; and even the owner of the property can get back his possession only by resorting to due process of law. 82
It has however been held that a suit based on title for permanent injunction, plaintiff claiming to be in possession,
can be decreed only on basis of title. 83 But in Rame Gowda v. M. Varadappa Naidu , 84 where the suit for
permanent injunction was based on title and possession and the defendant had also claimed title, the suit was
decreed on the basis of possession of the plaintiff. In this case none of the parties had succeeded in proving title
and the trial court had left the question of title open. It was observed that it was still open to the defendant to bring a
suit on the basis of title to evict the plaintiff. 85
The position in regard to suits for prohibitory injunction relating to immovable property was summarized by the
Supreme Court in Anathula Sudhakar v. P. Bucchi Reddy 86 as follows:
“(a ) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and
possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in
dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential
injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of
dispossession, it is sufficient to sue for an injunction simpliciter.
(b ) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be
directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on
possession. But in cases where de jure possession has to be established on the basis of title to the
property, as in the case of vacant sites, the issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c ) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and
appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar 87 ). Where
the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will
not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where
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there are necessary pleadings and issue, if the matter involves complicated questions of fact and law
relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for
declaration of title, instead of deciding the issue in a suit for mere injunction.
(d ) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties
lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue
regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that
question of title will not be decided in suits for injunction. But persons having clear title and possession
suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach
upon his property. The court should use its discretion carefully to identify cases where it will enquire into
title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon
the facts of the case.”
In this case the property in suit was open land. The plaintiff claimed to be owner in possession having purchased it
and sued for permanent injunction as defendant was interfering with his possession. The defendant also claimed to
be in possession as owner having purchased it from a different person and complained that plaintiff was interfering
with his possession and had filed a false suit. The documentary evidence showed prima facie the defendant's
possession following title. There was no issue raised in the suit on the question of title and the plaintiff had not
claimed any declaration of title. The Supreme Court observed that the plaintiff ought to have amended the plaint to
convert the suit for declaration of title. The court dismissed the suit but left open the plaintiff to file a suit for
declaration of title and consequential relief observing that the finding in this suit will not be construed as expression
of opinion barring such a suit if filed.
Adverse possession for 12 years extinguishes the title of the owner. When there are successive squatters, the
second squatter may acquire title by adverse possession, even though he was not in possession for 12 years,
provided the first squatter abandoned his claim to possession in favour of the second squatter and the possession
of both the squatters taken together exceeded 12 years. 88
4(C) Defences
The defences to suits under section 5 of the Specific Relief Act, 1963 are mainly two-fold:—(1) that the defendant
has a better title than the plaintiff; and (2) prescription, that is, the defendant having held the immovable property or
enjoyed the interest for twelve years and upwards, the plaintiff's title has thereby become extinguished and the
defendant has acquired a good title.89 In a suit under section 6 of the Act, the defendant can plead that the plaintiff
was not in possession within six months of the date of suit or that the plaintiff was dispossessed in due course of
law.
4(D) Damages
The trespasser who enters on another person's land and cultivates thereon does not thereby become entitled to the
produce or profits. 90 The plaintiff can recover as damages mesne profits which mean the profits which the
defendant actually received or might have received by ordinary diligence during the period of dispossession
together with interest on such profits but do not include profits due to improvement made by the defendant. 91 The
normal measure of mesne profits is, therefore, the value of the user of land to the person in wrongful possession.
92 Even if the plaintiff did not suffer any actual loss by being deprived of the use of his property, or the tresspasser
did not derive any actual benefit from the use of the property, the plaintiff was entitled to recover reasonable rent for
the period he was deprived of the use of his property by the trespasser. 1 Extinguishment of title by adverse
possession also extinguishes any claim for mesne profits including a claim for any period prior to extinguishment of
title. 2
5. INJURIES TO REVERSION
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A reversioner is a person who has a lawful interest in land but not its present possession, e.g., a landlord. Injuries to
reversionary interests are done either by strangers or by tenants. Injuries of the second kind are known as waste.
Whenever any wrongful act is necessarily injurious to the reversion to land, or has actually been injurious to the
reversionary interest, the reversioner may sue the wrong-doer. 3 He may sue for trespass, disturbance of
servitudes or nuisance, if the reversionary interest is affected, that is when the effect of the injuries is permanent.
Obstruction of an incorporeal right, as of way, 4 air, light, 5 water, 6 etc. may be an injury to the reversion. There
must be some injury of a permanent character to the land to enable a reversioner to support an action against a
third person. 7 But if the injury is of a temporary nature the occupier of the land may bring an action, e.g., bare
trespass unaccompanied by any physical injury to the land.
A suit for damages by a person who has a reversionary interest in movable property is maintainable when by
reason of trespass or other illegal act of the defendant he has been deprived permanently of the benefit of his
reversionary interest. 8
6. WASTE
Waste is a spoil or destruction of houses, gardens, trees or other corporeal hereditaments, to the disherision of him
who hath the remainder or reversion. Whatever does a lasting damage to the freehold is waste. 9 Some act or
omission on the part of the tenant or any person in possession prejudicial to inheritance is essential upon which to
ground an action for waste. The law relating to waste is more properly a branch of the law of property. 10
Indian law. —A tenant holding under a lease of a permanent character has no power to make excavations of such a
character as to cause substantial damage to the property demised. 11 But a grant of a permanent tenure, when the
subject-matter of the grant is agricultural land, conveys to the grantee all the underground right, unless there is
express reservation to the contrary. 12
Action.— An action for waste must generally be brought by the person next entitled in remainder; and if the latter
has only a life-estate, he is entitled to such damages as are commensurate with the injury done to his life-estate. It
is no answer to such an action to say that the value of property is enchanced by the changes made. The lessor is
entitled to have the premises kept in the state in which he demised them.
In India actions for waste were generally maintained by reversioners against Hindu widows. 13 After the Hindu
Succession Act (XXV of 1956), such actions will not lie against Hindu widows who become full owners under
section 14 of the Act.
Damages and injunction. —In an action for waste the actual damage sustained may be recovered and an injunction
obtained against the recurrence of the mischief. 14
7. WRONGS TO EASEMENTS AND SIMILAR RIGHTS
7(A) General
An easement is a right which the owner of a property has to compel the owner of another property to permit
something to be done, or to refrain from doing something on the servient tenement for the benefit of the dominant
tenement, e.g., right to light, a right of way. The property in respect of which an easement is enjoyed is called the
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dominant tenement, and its owner, dominant owner, and that over which the right is exercised is called the servient
tenement, and its owner servient owner. An easement is a right not naturally belonging to land, but becoming
appurtenant thereto by some method of acquisition. Every landowner has, however, certain ‘natural rights’ attached
to the land, as rights of property not requiring any acquisition, e.g., right of support for land, right to water.
Easements are distinguished from ‘natural rights’ inasmuch as the former are founded upon (1) prescription
sanctioned by statute, (2) express grant, or (3) implied grant evidenced by immemorial user; 15 whereas the latter
are incidental to the possession of immovable property. An easement is also to be distinguished from a customary
easement which is not an easement in the strict sense. A customary easement arises in favour of an indeterminate
class of persons such as residents of a locality or members of a certain community, and it must satisfy all the tests
which a local custom for recognition by Courts must satisfy. 16 The most ordinary instances of easements are the
rights of air or light, of way, and of artificial watercourses.
When an easement has once been acquired, it will stand upon the same footing as natural right of property. Any
material disturbance of a right of easement or a natural right; or in other words, any act done without lawful
justification, which causes substantial damage by disturbing these rights, by a stranger or owner of the servient
tenement amounts to a tort and is actionable at the instance of the occupier or owner of the dominant tenement and
is redressable by an award of damages to compensate the injury and/or by an issue of injunction to prevent
repetition. 17 The action is not in trespass but in nuisance for the person entitled to an easement or a natural right
is not in possession of the servient tenement and he is only entitled to its use or benefit depending upon the nature
of the right. 18 Even a person in de facto possession of the dominant tenement and thereby in enjoyment of
easements and natural rights appurtenant to that land can maintain an action against strangers (persons other than
the owner or lawful occupier of servient tenement) and they cannot plead in defence that some person other than
theplaintiff is the rightful owner of the dominant tenement. 19 But if the suit is against the true owner of the servient
tenement the legal position is not clear but it appears that a distinction in this context is drawn between natural
rights and rights acquired by prescription. If the suit by the person in de facto possession of the dominant tenement
is in respect of a natural right, the owner of the servient tenement cannot successfully resist the suit by pleading
that someone else is the owner of the dominant tenement but if the suit relates to a right acquired by prescription, it
can be resisted by pleading that it is not the plaintiff but a third person, who acquired the right, the infringement of
which is complained of in the suit. 20 If the owner of a land is in enjoyment of a benefit from an adjoining land
which is yet to mature into an easement, he cannot complain of any infringement of any right as against the owner
of the adjoining land but there is some authority that he can do so against strangers. 21
The important natural rights and easements, the invasion of which is treated as wrong, are discussed below.
7(B) Right to Support 7(B)(i) Support of land by adjacent land
Support of land by land may be either:—

(a) The lateral support of land by adjacent land, or
(b) The vertical support of the surface by the subsoil, where the property in the two is distinct.
(a ) Lateral Support .—Every proprietor of land is entitled to such an amount of lateral support from the
adjoining land of his neighbour as is necessary to sustain his own land in its natural state, not being
weighted by walls or buildings. 22 This is a natural right. 23 Such a right is not an easement but a right of
property. 24 The natural right does not extend to the additional support from a neighbour's soil necessary
for the maintenance of building; for one landowner cannot, by altering the natural condition of his land, or
by erecting buildings thereon, deprive his neighbour of the privilege of using his land as he might have
done before. 25 But a right of support in extension of the natural right may be acquired by prescription or
grant.
In Smith v. Thackerah , 26 A dug a well near B's land, which sank, in consequence, and a building erected
on it within twenty years fell, and it was proved that, if the building had not been on B's land, the land would
still have sunk, but the damage to B would have been inappreciable; it was held that B had no right of
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action against A. But if the sinking of land, whether any building on it stood or not, would have caused
appreciable damage B would have been liable for the entire injury done to both land and building. 27
The subsidence of plaintiff's land attributable to either the acts or default of the defendant is itself an
interference with the plaintiff's enjoyment of his own property, and as such constitutes the cause of action.
28 Every fresh subsidence of the plaintiff's land though resulting from the same excavation by the
defendant of his land, gives rise to a fresh cause of action. 29 The Court will interfere by injunction to
prevent irreparable damage to land when anything is done by the owner of the adjacent land in his own
land so as to let the former land slip or go down or subside even if no actual damage is sustained by the
former land. 30 If damages are claimed, the right of support must be shown to have been infringed, and
this infringement takes place as soon as and not until damage is sustained in consequence of the
withdrawal of the support. 31
(b ) Vertical support .—There is a right of support of land by subjacent land, when the surface and subsoil are
vested in different owners. The owner of the surface is entitled to common law right to the support of the
subjacent strata, so that the owner of the subsoil and minerals cannot lawfully remove them, without
leaving support sufficient to maintain the surface in its natural state. 32 If the owner of the land grants the
subsoil, reserving the surface to himself, he impliedly grants reasonable means of access to the subsoil,
and the grantee would have a right to go upon and dig through the surface, to enable him to reach the
subsoil, if he had no other means of access thereto. But the owner of the subsoil may maintain an action
against the owner of the surface, if he digs holes into the subsoil to a greater extent than is reasonably
necessary for the proper and fair use, cultivation and enjoyment, of the surface; or if he removes so much
of the surface that the mines below are flooded. 33
The owner of the surface has no right of action until some actual damage has been sustained by him. 34
Proof of pecuniary loss is not necessary if actual subsidence is proved. 35 Whenever a fresh subsidence
occurs, although proceeding from the original act or omission, a new cause of action accrues in respect of
the damage done thereby, and the period of limitation begins to run afresh. 36
7(B)(ii) Suppport of buildings by land
Support of buildings by land may be either:—

(a) The support of buildings laterally by adjacent soil; or
(b) the support of buildings vertically by subjacent soil.
The natural right to support exists in respect of land only, and not in respect of buildings, but a right to support for
buildings both from adjacent and subjacent land may be acquired by—
(1) Grant , which may be (a) express, or (b) implied, e.g., where a man has granted part of his land for building.
37
Thus, if land not granted expressly for building purposes is weighted with buildings, the owner of the
surface has no right to additional support necessary for the maintenance of the buildings until he has
acquired the right; so that if the owner of the subsoil in working mines leaves sufficient support for the
surface, but the land sinks in consequence of the weight of the buildings, that have been placed upon it, the
owner of the subsoil is not responsible for the damage done. 38 But if the weight of the building has in no
way caused the sinking of the land, and the land would have fallen in, whether the building had been
erected on it or not, the building on the land becomes quite immaterial, and the defendant is responsible for
damages to the extent of the injury done both to building and land. 39
(2) Prescription . A building which has de facto enjoyed, under the circumstances and conditions required by
the law of prescription (viz. openly and without concealment), support for more than twenty years, has the
same right as an ancient house would have had. 40 Though the right of support to a building is not
acommon law right and must be acquired, yet when it is acquired the right of the owner of the building to
support it is precisely the same as that of the owner of land to support for it. 41
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In Dalton v. Angus 42 two dwelling-houses adjoined, built independently, but each on the extremity of its
owner's soil, and having lateral support from the soil on which the other rested. This having continued for
more than twenty years, one of the houses (plaintiffs’) was converted into a coach factory, the internal walls
being removed and girders inserted into a stack of brickwork in such a way as to throw more lateral
pressure than before upon the soil under the adjoining house. The conversion was made openly and
without deception or concealment. More than twenty years after the conversion the owners of the adjoining
house employed a contractor to pull down their house and excavate, the contractor being bound to shore
up adjoining buildings and make good all damage. The house was pulled down, and the soil under it
excavated to a depth of several feet, and the plaintiff's stack being deprived of the lateral support of the
adjacent soil sank and fell, bringing down with it most of the factory. It was held that the plaintiffs had
acquired a right of support for their factory by the twenty years’ enjoyment, and could sue the owners of the
adjoining house and the contractor for the injury.
7(B)(iii) Support of buildings by buildings
The right to support for one building from an adjoining building is not a natural right. It may, however, arise in
different ways, 43 e.g., grant, 44 prescription, or both houses having been built by the same owner. 45
The mere fact of contiguity of buildings imposes an obligation on the owners to use due care and skill in removing
one building so as not to damage the other, even though no right to support has been acquired. 46
If one man builds two or more houses, each needing the support of the other, and then if he sells one, it is
presumed that he reserves for himself and grants to the buyer, the right of mutual support; and so, if he sells
several such houses to several persons at different times, each has the same right of support, having regard to the
priority of titles. 47
Three contiguous houses in a street visibly leaned out of the perpendicular and towards the west for upwards of
thirty years A's house leaning on C's house which was leaning on B’ s. On the expiration of a lease to a tenant, B
took down his house, the effect of which, by removing the support, was to cause C's house to fall down, and C's
house falling, A's house fell. It was held that the fall of A's house did not give him a right of action against B, for A
had not either a natural or an acquired right to have his house supported by B's through the intermediate house. 48
But this decision may require reconsideration. The act of B in pulling down his house was wrongful as by that act he
deprived C of his right to have his house supported by B's house. The natural and foreseeable consequence of this
wrongful act was not only that C's house fell down but also that A's house which was supported by C's house fell
down. Therefore, B should have been held liable to both C and A, i.e. for the entirety of the foreseeable damage
directly arising out of his wrongful act.
Damage is necessary to give a right of action. 49 The right established in Dalton v. Angus 50 viz. a right of support
for an ancient building by the adjacent land equally applies to support enjoyed from an adjacent building, even
though both the buildings were erected by different owners. 51 But a right to shelter as distinguished from a right of
support cannot be acquired as an easement. So if A pulls down his house and thereby exposes B's house to
weather, B has no cause of action. 52
7(B)(iv) Support of land and buildings by water
An owner of land has no right at common law to the support of subterranean water. The right of vertical support
does not extend to have the support of underground water which may be in the soil, so as to prevent the adjoining
owner from draining his soil, if for any reason it becomes necessary or convenient for him to do so, the presence of
the water in the soil being an accidental circumstance, the continuance of which the landowner has no right to count
upon. 53
Support by water.— Some cottages were built on land of a wet and spongy character, the land not having been
properly drained; the adjoining land was sold for the purpose of erecting a church, and on excavation for the
foundations, the water was drawn from the spongy land, the surface subsided and the cottages were cracked and
injured. It was held that there was nothing at common law to prevent the owner of land from draining his soil if it was
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necessary or convenient for him to do so, though he might, by grant, express or implied, oblige himself to suffer the
underground water to remain. 54
Support by running silt.— Where the plaintiff's land was supported, not by a stratum of water, but by a bed of wet
sand or “running silt”, and the defendants caused the subsidence of the plaintiff's land by withdrawing this support,
it was held that they were liable. 55 The decision in the former case was held not applicable as it dealt only with
support by water.
7(C) Riparian rights in natural watercourses and streams
A riparian right arises from the right of access to a stream which landowners on its banks have by the law of nature.
56 It is distinguished from easement or acquired right (derived by grant, covenant, prescription or statute), which a
riparian proprietor may have in a stream, either natural or artificial. Those whose land abuts on, and is part of, the
bank of a river or stream, whether tidal or non-tidal, are called riparian owners. Riparian owners have the same
natural riparian rights in public navigable and tidal rivers as in private streams. 57 The right of a riparian owner on
the banks of a tidal navigable river exists jure naturae , but it is essential to its existence that his land should be in
contact with the flow of the stream at least at the times of ordinary high tides. 58
Natural watercourses or streams .—‘A natural stream’ is a stream arising at its source from natural causes and
flowing in a natural channel. 59 Every landowner has a natural right to the uninterrupted flow, without diminution,
deterioration in quality, or alteration, of the water of natural surface streams which pass to his lands in defined
channels, and to transmit the water to the land of other persons in its accustomed course. 60 This right belongs to
the proprietor of the adjoining lands as a natural incident to the right to the soil itself. Riparian owners are entitled to
use and consume the water of the stream for drinking and household purposes, for watering their cattle, for
irrigating their land, and for purposes of manufacture, subject to the conditions that—
(1) the use is reasonable; 61
(2) it is required for their purposes as owners of the land; and
(3) it does not destroy or render useless, or materially diminish, or affect the application of, the water by riparian
owners below the stream in the exercise either of natural right or their right of easement, if any. 62
Each proprietor has a right to a reasonable use of the water as it passes his land, but, in the absence of some
special custom, he has no right to dam it back or exhaust it, so as to deprive other riparian owners of the like use.
63 But an upper riparian owner has no locus standi to complain if the lower riparian owner puts up a bund across
the natural stream for the purpose of diverting the water to irrigate his lands. 64
It is not necessary that a natural stream must flow continously throughout the year, and must at every single point of
its course flow through a clearly defined channel. Even if such a stream does not flow continuously throughout the
year it will be regarded as a natural stream. 65
If the rights of a riparian proprietor are interfered with, he may maintain an action against the wrong-doer, even
though he may not be able to prove that he has suffered any actual loss. 66
As between riparian owners the law established in England is that diversion of water for riparian purposes is not
actionable without proof of injury, but diversion for non-riparian purposes is actionable without proof of such injury.
A dam had been in existence across a river for upwards of two hundred and eighty years, and during all that time
the villages of D and P had received an equal supply of water from separate sluices in the dam. The Government
authorities, being of opinion that D required less water than P, reduced the size of the D sluice, and consequently
the amount of water flowing to the D village. The inhabitants of D challenged the action of the Government. It was
held that the Government had no such right of interference. 67
Where a riparian owner for the protection of his own land erects a wall along the side of the river to prevent flooding
and many years afterwards pulls down part of the wall in connection with building operations, with the result that a
neighbour's property is damaged by flood, the neighbour has no right to the protection of the wall and cannot
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therefore maintain an action for damages on the ground of a negligence, nuisance, or on the principle of Rylands v.
Fletcher . 68
7(D) Artificial watercourses
An artificial stream' is one arising by human agency, or flowing in an artificial channel. The right to artificial
watercourses, as against the party creating them, depends upon the character of the watercourse, whether it be of
a permanent or temporary nature, and upon the circumstances under which it is created. 69 If it is permanent in its
character, a right to the uninterrupted flow of the water may be acquired by prescription or grant against both the
originator of the stream and also against any person over whose land the water flows. 70 If it is of a temporary
character, no right could be acquired by prescription, because the temporary nature of the stream precludes a
presumption of a grant of a permanent right. 71
There is no right to tap an artificial watercourse unless by grant or prescription. 72 But a right of easement may be
acquired in the surplus water of a tank flowing through a defined channel, whether natural or artificial. 73
7(E) Surface water
The chief characteristic of surface water is its inability to maintain its identity and existence as a water-body, 74 e.g.,
rain water or water from a spring which does not flow in a stream and spreads over the strata of earth. Water which
does not flow in a defined channel belongs to the owner of the land on which it is collected. 75 Every landowner
has a natural right to collect and retain upon his own land the surface water not flowing in a defined channel and put
it to such use as he may desire. 76 No right of easement to surface water not flowing in a stream and not
permanently collected in a pool, tank or otherwise can be acquired. 77 “Stream” connotes the idea that the body of
water flows through a defined channel having a bed and banks on both the sides. 78 A flow of excess rain water,
though in a body and in one direction spread over a very large area in width without any bed or having any banks
within which the flow is confined, cannot be treated as a stream. 79 The owner of a land may instead of retaining
allow the surface water coming to his land to flow away in the usual course of nature upon the lower lands of his
neighbour and cannot be bound to prevent it from so doing. 80 The owner of the lower land may acquire by
prescription, as an easement restricting this natural right, the right to prevent the natural flow of water from the
higher land on to his own. 81 The owner of the upper land is, however, not entitled to do anything that will throw on
the lower land water which would not have naturally gone there. 82
An owner of land on a lower level to which surface water from adjacent land on a high level naturally flows is not
entitled to deal with his lands so as to obstruct the flow of water from the higher land. This principle applies to all
lands whether situate in the country or in towns. 83 It also makes little difference to this principle that the water
happens not merely rain water but also flood water to which the higher land is subjected periodically. 84 These
cases 85 appear to follow the rule of civil law applied in Gibbons v. Lenjestey 86 by the Privy Council in an appeal
from Guernsey which is not the common law and is not applied by English Courts. 87 The fact that the water
collected and discharged from the dominant tenement flows over the surface of the servient tenement without a
definite channel for its carriage cannot prevent the acquisition of an easement. 88
7(F) Subterranean water
In this class come—

(a) Subterranean streams the courses of which are known and clearly defined.
(b) Subterranean streams the courses of which are undefined; and percolating water the course of which is
underground, undefined and unknown.
The right to an underground stream flowing in a known and definite channel is a right ex natura , and an incident to
the land itself, as a beneficial adjunct to it. 89
If the course of a subterranean stream were well known, as is the case with many which sink underground, pursue
for a short space a subterranean course, and then emerge again, the owner of the soil under which the stream
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flowed could maintain an action for the diversion of it, if it took place under such circumstances as would have
enabled him to recover had the stream been wholly above ground. 90
Where a man digs a pond on his land which by percolation obstructs and diminishes the water flowing in a defined
channel through another's land adjoining the pond, there is an actionable wrong and the owner of the pond can be
directed to erect such construction as would prevent such abstraction by percolation. 91
The principles which apply to flowing water in defined streams are wholly inapplicable to water percolating through
underground strata, which has no certain course, no defined limits, but which oozes through the soil in every
direction in which the rain penetrates. There is no natural right to the uninterrupted flow of such streams. 92 Such a
right cannot also be acquired by prescription. 93 A landowner has, therefore, the right to appropriate water
percolating in no defined channel through the strata beneath his land; and no action will lie against him for so doing,
even if he thereby intercepts, abstracts or diverts, water which would otherwise pass to or remain under the land of
another. 94 But he is not entitled to pollute water flowing beneath another's land. 95 He can also be restrained
from drawing off the subterranean water on the adjoining land, if in so doing he draws off water which had once
flowed in a defined surface channel. 96
Stream drying up owing to construction of well on adjoining property. —A landowner and a millowner who had for
above sixty years enjoyed the use of a stream which was chiefly supplied by percolating underground water, lost
the use of the stream after an adjoining owner had dug, on his own ground an extensive well for the purpose of
supplying water to the inhabitants of the district, many of whom had no title as landowners to the use of water. In an
action brought by the landowner it was held that the principles which regulate the rights of owners of land in respect
to water flowing in known and defined channels, whether upon or below the surface of the ground do not apply to
underground water which merely percolates through the strata in no known channels and the plaintiff had no right of
action. 97
7(F1) Pollution of Water Air and Environment
The interpretation of the fundamental right to life in Article 21 of the Constitution to include enjoyment of Pollution
free environment has given new dimension to this topic. 1
Relevant in this context are also Articles 48A and 51A of the Constitution. Article 48 A requires that the State shall
endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under
Article 51 A it is the duty of every citizen to protect and improve the natural environment including forests, lakes,
rivers and wildlife and to have compassion for living animals. 2 The Declaration of the 1972 Stockholm Conference
on ‘Human Environment’ which is referred to as the ‘magna carta’ of our environment provides that the natural
resources of the earth including air, water, land flora and fauna should be protected. This necessitates that
“development and environment must go hand in hand. In other words there should not be development at the cost
of environment and vice versa, but there should be development while taking due care ensuring the protection of
environment”. 3 The Development has to be what is known as ‘sustainable development’ which is defined as
‘development that meets the needs of the present without compromising the ability of future generations to meet
their own needs.” 4
Although a riparian owner has a right to make reasonable use of water of a stream, 5 he has no right to pollute the
water. 6 Even subterranean water cannot be polluted. 7 Pollution here means altering the natural quality of water
whereby it is rendered less fit for any purpose for which in its natural state it is capable of being used. 8 Pollution
gives rise to a cause of action in nuisance without proof of actual damage. 9 Injunctions can be granted against
factories and municipalities restraining them from discharging untreated refuse or sewage into a stream. 10 Section
24 of the Water (Prevention and Control of Pollution) Act, 1974 prohibits the use of any stream or well for disposal
of polluting matter. It provides that subject to the provisions of the said Act, no person shall knowingly cause or
permit any poisonous, noxious or polluting matter to enter, whether direclty or indirectly, into any stream or well; or
no person shall knowingly cause or permit to enter into any stream any other matter which may tend either directly
or indirectly in combination with similar matters to impede the proper flow of the water of the stream in a manner
leading or likely to lead to substantial aggravation of pollution due to other causes or of its consequences. Stream is
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defined by Section 2 (i) of the Act to include river, watercourse whether flowing or for the time being dry, inland
water whether natural or artificial, subterranean waters, sea or tidal waters. By Act 44 of 1978 the restriction on
discharging effluents into a stream was extended to discharges into sewers and on land. To implement the
decisions taken at THE UNITED NATIONS Conference on the Human Environment in so far as they relate to the
protection and improvement of environment and the prevention of hazards to human beings, other living creatures,
plants and property a Comprehensive Act the Environment Protection Act 1986 was enacted by Parliament. section
2 (a) of the Act widely defines environment to include water, air and land. Section 2 (a) of the Air (Prevention and
Control of Pollution) Act, 1981 defines ‘airpollutant’ in wide terms to mean ‘any solid, liquid or gaseous substance
including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings
or other living creatures or plants or property or environment’.
Sections 3 and 5 confer very wide powers to the Central Government to take measures to protect and improve
environment and to issue necessary direction to any person, officer or authority. The Supreme Court in a public
interest litigation under Article 32 of the Constitution restrained tanneries of Kanpur from discharging effluent in the
river Ganga without setting up primary treatment plant; 11 and also directed the municipal Board, Kanpur to take
steps for construction of sewage treatment works and to take other steps for prevention of pollution of the river. 12
In Indian Council For Environmental Action v. Union of India 13 compensation of Rs. 28.34 lakhs was allowed to
farmers from the State of Andhra Pradesh as their crops got damaged being irrigated by subsoil water drawn from a
stream which was polluted from the untreated effluents of 22 industries owned by private persons. The basis of the
liability of the State has not been clarified. Impliedly the liability would be on the basis of violation of right to life
under Article 21 for failure to take action against the industries for not installing effluent treatment plants. And in
Indian Council for Enviro Legal Act ion v. Union of India 14 the Supreme Court in a petition under Article 32 issued
directions to the Central Government to exercise its powers under sections 3 and 5 of the Environment (Protection)
Act, 1986 to take remedial measures to restore the soil, water sources and the environment in general of the
affected area to its original condition and to recover the cost of the same from polluting chemical industries which
were required to close down. The villagers were further allowed to sue for damages in civil court on the Mehta
principle. The Court also applied the “Polluter pays principle” which demands that the financial costs of preventing
or remedying damage caused by pollution should lie with the undertakings which cause pollution or produce the
goods which cause pollution. Further strides in Environment Protection jurisprudence have been made in M.C.
Mehta v. Kamal Nath 15 and S. Jagannath v. Union of India . 16 In Kamalnath the Court (KULDIP SINGH, J.)
made the public trust doctrine the law of the land and ruled: “The state is the trustee of all natural resources which
are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running,
waters, airs, forests and ecologically fragile lands. The state as a trustee is under a legal duty to protect the natural
resources. These resources meant for public use cannot be converted into private ownership.” 17 The Court set
aside the lease of ecologically fragile land situated on the bank of the river Beas to a Motel and directed the
Himachal Pradesh State Governmemt to take over the area and restore it to its original natural conditions. The court
also directed the Motel to pay compensation by way of cost for restitution of the environment and ecology of the
area. In Jagannath 18 the court directed the Central Government to constitute an Authority under section 3(3) of
the Environment (Protection) Act, 1986 and confer on the said authority the necessary powers to protect the
ecologically fragile coastal areas, sea shore, water front and other coastal areas and specially to deal with the
situation created by the shrimp culture industry in the coastal areas. The court also directed demolition of all such
industries in the coastal regulation zone and the implementation of the ‘Precautionary’ principle and the ‘Polluter
Pays’ principle. The industries which were directed to be closed were held liable for payment of compensation
under two heads, namely, for reversing the ecology and for payment to individuals for the loss suffered. Principle of
Sustainable Development, precautionary principle and polluter pays principle were also applied in protecting Taj
and residents in the area from emissions generated by coke/coal consuming industries. 19 These principles were
further explained in detail in A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) 20 and K.M. Chinappa v.
Union of India. 21 The Chinappa case explains the meaning of environment and importance of its protection. The
Supreme Court by various orders issued from time to time has issued directions for replacing Diesel Vehicles by
CNG Vehicles for controlling air pollution by emissions from vehicles. 22 Recently the Supreme Court issued
detailed directions relating to fire crackers, loud speakers and Vehicular noise for controlling noise pollution. 23 The
court had in an earlier case observed that noise pollution cannot be tolerated even if such noise was a direct result
of and was connected with religious activites. 24 The Central Government has framed the Noise Pollution
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(Regulation and Control) Rules, 2000 which provides for silence zones viz. an area comprising not less than 100
metres around hospitals, educational institutions and courts and restricts the use of loudspeaker or a public address
system except after obtaining written permission 25 of the competent authority. Interference by the court in respect
of noise pollution is premised on the basis that a citizen has certain rights being ‘necessity of silence’, ‘necessity of
sleep’, ‘peace during sleep’ and ‘rest’ which are biological necessities essential for health and constitute human
right. 26 Courts have also issued directions for preventing air pollution and regulating stone crushing industries. 27
The doctrine of public trust has been applied to Municipal corporations in the context of section 114 of the U.P.
Nagar Palika Adhiniyam, 1959 which makes it an obligatory duty of the corporation to maintain public places, parks
and plant trees. It was held in this case that by allowing construction of under ground shopping complex in a park,
the corporation violated not only section 114 but also the public trust doctrine. Directions were issued for demolition
of the construction and restoration of the park. 28 But damages cannot be allowed simply on the ground that the
industrial units have violated the standards prescribed by the Pollution Board. It has further to be shown that the
violation of the standards has caused damage to environment. 29 “Compensation to be awarded must have some
broad correlation not only with the magnitude and capacity of the enterprise but also with the harm caused by it. In
a given case the percentage of the turnover itself may be a proper measure because the method to be adopted in
awarding damages on the basis of ‘polluter to pay’ principle has got to be practical, simple and easy in application”.
30 The court in this connection referred to the principle of strict liability and damages recoverable under the Mehta
Rule. 31
With the object of protecting the benefits arising to mankind from forests, whenever forestland is permitted to be
diverted for non-forest development activities, the user agencies are required to pay for compensatory afforestation
as also net present value (NPV) of forest land diverted for non-forestry purposes. The underlying principle for
recovery of NPV is that plantations raised could never adequately compensate for the loss of natural forests as the
plantations require more time to mature and even then they are a poor choice for natural forest. The Supreme Court
gave detailed direction in these matters in Godavarman case. 32 Another recent case 33 in relation to concept of
`sustainable development’ relates to the protection of Kolleru lake which is one of the longest shallow fresh water
lakes in Asia located between the delta of Krishna and Godawari rivers in the State of Andhra Pradesh. The lake
extends over 901 sq. km. and 308 sq.m. having been declared as wildlife sanctuary. The lake is a wetland
ecosystem of international importance and has been so declared in the 1971 Convention of Rarusar (Iran) to which
India is a signatory. It was decided in the Convention that encroachments in the lake would not be tolerated. By a
notification issued under Section 26A of the Wild Life Protection Act 1972 aquaculture in the form of any tank was
prohibited in the area declared as sanctuary. Directions were issued for implementation of the said notification and
for demolition of all fish tanks within the sanctuary and for prohibiting use or transportation of inputs for pisciculture
in the said sanctuary. These directions were upheld by the court.
Polluting neighbour's well by turning sewage into one's own.— A and B, two neighbours, each possessed a deep
well on his own land. A turned sewage into his well, in consequence whereof the well of B being at a lower level
became polluted by underground percolation; it was held that an action lay by B against A. There is a considerable
difference between intercepting water in which no property exists, and sending a new, foreign and deleterious
substance on to another's property. The immdediate damnum , namely, the pollution of the water might be possibly
no damnum , but allowing sewage to escape into another's property is of itself an injuria which needs no damnum .
34
Polluting tank water by laying salt pans .—The plaintiff-villagers, who had a right to use the water of a tank
belonging to the Government for bathing, drinking and other purposes from time immemorial, sued the defendants
to restrain them from laying salt pans in a portion of the bed of the tank as the water would thereby become saltish.
It was also found that the water in the tank-bed had become saltish due to the existence of salt pans of these
persons all round the bed of the tank. It was held that the villagers were entitled to the grant of an injunction against
the defendants as they possessed a common right over the water of the tank and any interference of that right gave
them a cause of action even though the interference was not in respect of the land belonging to the plaintiffs and
that it was no defence to the action that people other than the defendants had already done something which had
the effect of making the water saltish. 35
7(G) Right to access of air

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An owner or occupier of land or building has no natural right to free passage of air to his tenement over adjoining
open land. He has no natural right to prevent his neighbour from using his land in such a way as to obstruct that
free passage of air. A right to the general passage of air not flowing in any defined channel may be the subject of
express grant but is not capable of being claimed as an easement by prescription, or by a lost grant. Thus no action
will lie for the obstruction of the passage of wind to an old mill, 36 or chimney. 37 But a right to air through
aparticular aperture in a house or building on the dominant tenement can be acquired by prescription as an
easement 38 or by express grant.
Indian law .—Access and use of air to and for any building may be acquired under the Indian Easements Act,39 if it
has been peaceably enjoyed therewith, without interruption, for twenty years. The right to air is co-extensive with
the right to light. 40 The owner of house cannot by prescription claim to be entitled to the free and uninterrupted
passage of a current of wind. He can claim no more air than what is sufficient for sanitary purposes. 41 There is no
right as a right to the uninterrrupted flow of south breeze as such. 42 There is no easement for free access of wind.
43 In this country a man who has enjoyed a right to air more or less pure and free will be reasonably protected
against any interference. 44 The conditions here are different from those existing in England, so far as air is
concerned. In England more light is needed than here: whereas more air is needed here than in England. 45
Infringement.— The right to the purity of air is not violated unless the annoyance is such as to interfere materially
with the ordinary comfort of human existence. 46 It is only in rare and special cases involving danger to health, or
at the least something very nearly approaching it, that the Court would be justified in interfering on the ground of
diminution of air. 47
But under the Indian law where the easement disturbed is a right to the free passage of air to the opening in a
house, damage is substantial if it interferes materially with the physical comfort of the plaintiff, though it is not
injurious to his health. 48 The Calcutta High Court has held that obstruction in cases not governed by the
Easements Act must be such as to cause what is technically called a nuisance to the house; in other words, to
render the house unfit for ordinary purpose of habitation or business. 49
7(H) Right of access to light
At common law the owner of land has not any right to light. Any one may build upon his own land regardless of the
fact that his doing so involves an interference with the light which would otherwise reach the land and buildings of
another person. 50 The right to light is acquired as an easement in augmentation of the ordinary rights incident to
the ownership and enjoyment of land.
The right to light is nothing more or less than the right to prevent the owner or occupier of an adjoining tenement
from building or placing on his own land anything which has the effect of illegally obstructing or obscuring the light
of the dominant tenement. It is in truth no more than a right to be protected against a particular form of nuisance,
and an action for the obstruction of light which has in fact been used and enjoyed for twenty years without
interruption or written consent cannot be sustained unless the obstruction amounts to an actionable nuisance. 51
An owner of ancient lights is entitled to sufficient light, according to the ordinary notions of mankind, for the
comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling-house, or for the beneficial use
and occupation of the house, if it is a warehouse, a shop, or other place of business. 52
The right to light is a negative easement and may be acquired—

(1) By grant or covenant, express or implied. 53
(2) By prescription under the Prescription Act 54 in England, and the Indian Easements Act55 in India. These
Acts necessitate an enjoyment without interruption for a full period of twenty years to confer the right. But
the dominant owner does not by his easement obtain a right to all the light he has enjoyed. He obtains a
right to so much of it as will suffice for the ordinary purposes of inhabitancy or business according to the
ordinary notions of mankind, having regard to the locality and surroundings. 56 A right to light by
prescription to a room in a residential house is not to be measured by the use to which the room has been
put in the past. 57
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(3) By reservation on the sale of the servient tenement. If a vendor of land desires to reserve any right in the
nature of an easement for the benefit of his adjacent land which he is not parting with, he must do it by
express words in the deed of conveyance, except in the case of easement of necessity. 58
Under the English law the rights to light and air are acquired differently. The right to light is acquired under the
Prescription Act, whereas the right to air is acquired at common law. The Indian Easements Act places light and air
on the same footing.59
No alteration in the dominant tenement will destroy the right to light so long as the owner of the tenement can show
that he is using through the new apertures in the wall of the new building the same, or a substantial part of the
same, light which passed through old apertures into the old building. 60 The real test is identity of light, and not
identity of aperture, or entrance for the light. It makes no difference that the new window or aperture is at a much
higher level than the old window. 61
Light for special purpose.— The right to a special amount of light necessary for a particular business cannot be
acquired by twenty years’ enjoyment to the knowledge of the owner of the servient tenement. 62 In measuring the
quantum of light to which the owner of the dominant tenement is entitled, the purpose for which he desires to use,
or uses, the light should be disregarded, and it does not either enlarge or diminish the easement which he has
acquired. 63
Infringement.— There must be a substantial deprivation of light, enough to render the occupation of the house
uncomfortable according to the ordinary notions of mankind, and, in the case of business premises, to prevent the
plaintiff from carrying on his business as beneficially as before. 64 To determine whether a nuisance has been
proved, the existing state of things must be considered, but subject to the qualification that light and air coming from
other sources, to which a right has not been acquired by grant or prescription, ought not to be taken into account.
65 Where a room in a building receives light through windows on different sides which are ancient lights, the owner
of land on either side as a general rule can build only to such a height as, if a building of like height were erected on
the other side, would not deprive the room of so much light as to cause a nuisance. 66
Indian law.— No damage is substantial unless it materially diminishes the value of the dominant heritage, or
interferes materially with physical comfort of the plaintiff, or prevents him from carrying on his accustomed business
in the dominant heritage as beneficially as he had done previous to instituting the suit. 67 In considering the
sufficiency of light, the light coming from other quarters should be considered. 68 The extent of a prescriptive right
to the passage of light and air through a certain window is provided for by s. 28(c) of the Indian Easements Act. An
easement of light to a window only gives a right to have buildings that obstruct it removed so as to allow the access
of sufficient light to the window.69 In cases not governed by the Easements Act the principle laid down in Bagram's
case will apply viz. , “The only amount of light (for dwelling-house) which can be claimed by prescription or by
length of enjoyment, without an actual grant, is such an amount as is reasonably necessary for the convenient and
comfortable habitation of the house.” 70 It is not enough that the light is less than before, but the test is whether the
obstruction complained of is a nuisance. 71
The 45-degrees rule.— It was supposed for some years that a building did not constitute a material obstruction in
the eye of the law, or at the least it was so presumed, if its elevation subtended an angle not exceeding 45 degrees
at the base of the light alleged to be obstructed, or, as it was sometimes put, left 45 degrees of light of the plaintiff
(that is, in other words, when opposite to ancient lights a wall is built not higher than the distance between that wall
and the ancient lights).
The House of Lords has observed that this rule is not a rule of law, and is not applicable to every case, but that it
may properly be used as prima facie evidence. 72 It is generally speaking, a fair working rule to consider that no
substantial injury is done to a person where an angle of 45 degrees is left to him, especially if there is good light
from other directions as well. 73 Light from other quarters cannot be disregarded. 74
Indian cases also hold that the “45-degrees rule” is not a positive rule of law, but is a circumstance, which the Court
may take into consideration, and is especially valuable when the proof of the obscuration is not definite or
satisfactory. 75
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In Colls v. Home and Colonial Stores Ltd ., 76 the respondents were the lessees of a building in a street in which
they carried on their business. Colls (appellant) proposed to build on land on the opposite side of the street a
building forty-two feet high, which the respondents believed would obstruct their light, and they brought an action
against Colls for an injunction. It was found that the proposed building would not materially interfere with the access
of light to any windows of the respondents except two windows on the ground floor. These windows were two out of
five windows facing the street in a room used by the respondents as an office for clerks and the respondents’
premises would still be sufficiently lighted for all ordinary purposes of occupancy as a place of business. It was held
that no action lay as the buildings of the appellant had not so materially interfered with the light previously enjoyed
by the plaintiffs as to amount to a nuisance.
Opening new windows. —Where a person, who has a right to light from a certain window, opens a new window, or
enlarges the old one, the owner of an adjoining house has a right to obstruct the new or enlarged opening, if he can
do so without obstructing the old, but if he cannot obstruct the new without obstructing the old, he must submit to
the burden. 77
Remedy.— In cases of infringement of light an injunction may be granted to prevent the obstruction. Injunction will
be granted, if, for instance, the injury cannot fairly be compensated by money, if the defendant has acted in a
highhanded manner, if he has endeavoured to steal a march upon the plaintiff or to evade jurisdiction of the Court.
But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and
not in an unneighbourly spirit, the Court ought to incline to damages rather than to an injunction. 78
In cases of light, “Court ought not to interfere by way of injunction when obstruction of light is very slight and where
the injury sustained is trifling, except in rare and exceptional cases....... and where the defendant is doing an act
which will render the plaintiff's property absolutely useless to him unless it is stopped, in such a case, inasmuch as
the only compensation, which could be given to the plaintiff, would be to compel the defendant to purchase his
property out and out, the Court will not, in the exercise of its discretion compel the plaintiff to sell his property to the
defendants’ by refusing to grant him an injunction and awarding him damages on that basis........ Between these
two extremes, where the injury to the plaintiff would be less serious, where the Court considers the property may
still remain with the plaintiff and be substantially useful to him as it was before, and where the injury is one of a
nature that can be compensated by money, the Courts are vested with a discretion to withhold or grant an
injunction, having regard to all the circumstances of the particular case before them.” 79 In India the Court has a
discretion: It may , not shall , issue an injunction where the injury is such that pecuniary compensation would not
afford adequate relief. 80
In some cases a mandatory injunction will also be granted. Court will grant such injunction where a man, who has a
right to light and air which is obstructed by his neighbour's building, brings his suit and applies for an injunction as
soon as he can after the commencement of the building, or after it has become apparent that the intended building
will interfere with his light and air. 81 But the Court should be satisfied that a substantial loss of comfort has been
caused and not a mere fanciful or visionary loss. 82
If plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, and has waited till the
building has been finished, and then asks the Court to have it removed, a mandatory injunction will not generally be
granted. 83
7(I) Right of way
A right of way is a right to pass over the soil of another person uninterruptedly. Rights of way do not fall under the
denomination of natural rights. They arediscontinuous easements, and may be acquired in the same way as the
other easements are acquired.
There are two classes of rights of way. 84

(1) Public rights of way which exist for the benefit of all people. They are called highway. Their origin is in
dedication express or implied.
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(2) Private rights of way. These (a) are vested in particular individuals or the owners of particular tenements;
their origin is grant or prescription; or (b) belong to certain classes of persons, or certain portions of the
public, such as the tenants of a manor, or the inhabitants of a parish or village, 85 their origin is custom.
A right of way may be created by express grant, or by immemorial custom or necessity, 1 or by prescription, 2 or
by statute or through private dedication. 3 Simply because the user of land without permission of the owner was a
criminal offence it does not prevent in the acquiring of the right of way by prescription if the user continued for the
statutory period. 4
As to the nature of rights of way, they may be general in their character or in other words usable for all purposes
and at all times, 5 or the right to use them may be limited to particular purposes, e.g., for sweepers, 6 or to certain
times. 7 Thus, a right of way may be limited to agricultural purposes only—and the existence of such a right is not
itself sufficient evidence of general right for all purposes—as to carry lime or stone from a newly opened quarry, 8
or it may be limited to the purpose of driving cattle, 9 or carriages, 10 or of the passage of boats, 11 or it may be a
horseway or merely a way for foot passengers, 12 or the right of user may be limited to such times as a gate is
open, 13 or to certain hours of the day, or when the crop are off the land. A right of way acquired by prescription for
agricultural purposes can be used for other purposes provided that the burden on the servient tenement is not
increased by such user. 14 When a right of way is granted by conveyance for access and use of a particular land, it
cannot be extended and utilised for cultivation of another adjoining land. 15
Public right of way .—Public right of way exists over highways or navigable rivers. A highway is a road over which
the public at large possess a right of way. The highway may cover not merely the metalled portion but also the side
lands. 16 A public highway must lead from one public place to another. 17 The public have the right to the free use
of any portion of the highway. 18 The ownership of a highway is in the owners of the land adjoining the highway on
either side or those who own the subsoil. But by statute the ownership is vested in municipal bodies. The vesting of
a highway or a public street in a municipality is only for management and maintenance; the vesting of the highway
or street also includes so much of the soil below and of the space above the surface as is necessary to enable it to
adequately maintain the highway or the street. 19 Every person who occupies land adjoining a highway has a
private right of access to the highway from his land and vice versa . 20 This right of access is different from the
right of passage over it. The former is a private right, 21 the latter, a public right. The right over a public highway
cannot be limited to any class or section of the public. An attempt to dedicate a highway to a limited portion of the
public is no dedication at all. 22 The right to use a thoroughfare should be exercised in a reasonable manner
without any wanton disregard of the legal rights of others or a riotous demonstration to provoke animosities. 23 But
subject to control of appropriate authorities and public order, a citizen has a right to take processions through a
public street 24 and even to hold a public meeting at a proper time and place on such a street. 25 Any wrongful
interference with a right of way constitutes a nuisance.
Infringement and right of action.— A person commits a wrong who disturbs the enjoyment of a right of way by
blocking it up permanently or temporarily, or by otherwise preventing the free use of it. With regard to private rights
of way they do not require a permanent obstruction to give rise to a right of action. Thus, the padlocking of a gate is
sufficient. 26 Permitting carts or wagons to remain stationary in a passage in the course of loading and unloading,
so as to obstruct the person who has a right of way will give rise to an action. 27 Proof of special damage is not
essential. 28 Thus in the case of a village pathway no question of special damage arises. 29
As regards public right of way the Municipality and the owner of the subsoil can maintain an action in trespass
against a member of the public who acts in excess of his right. 30 But no action by a private individual will lie for
obstruction to a public way without proving that he has sustained particular and substantial and direct damage
beyond the general inconvenience and injury to the public, 31 e.g., obstruction rendering necessary for a person to
go by a longer route. 32 Such special damage must differ not merely in degree but in kind from that sustained by
the rest of the public. Special damage means damage of a special character, that is, damage affecting the plaintiff
individually or damage peculiar to himself, his trade or calling. 33 The Privy Council ruling in Manzur Hasan v.
Muhammad Zaman , 34 has, however, led to some difference of opinion. The Lahore 35 and the Madras 36 High
Courts have held, referring to the Privy Council ruling in Manzur Hasan's case, that any individual member of the
public has the right to maintain a suit for removal of obstruction of a public highway, if his right of passage through it
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is obstructed, without proving special damage. The Patna 37 High Court has dissented from this view holding that
the Privy Council case was limited to the question of conducting religious processions through streets and public
highways and not to the question whether an action with regard to a public nuisance could be maintained without
proof of special damage. It has, however, subsequently held that a person in the immediate neighbourhood and
entitled to use a public thoroughfare has a special cause of action irrespective of whether he has proved special
damage or not. Where a structure containing a platform and a privy is erected in a narrow public way, a person
living on its opposite side may be deemed to have suffered loss without proof of such loss. 38 It has further laid
down that the doctrine of special damage, which is based on the principle of English common law that there can be
no private action for a public wrong, has two limitations; first, it applies only to cases regarding public right in the full
sense, and secondly an invasion of special rights will provide a cause of action without proof of special damage, for
in such a case the law will presume damage. It is by reason of these limitations that the doctrine has been held not
to apply to cases of quasi- public right, such as village roads. While, therefore, it is necessary to prove special
damage in cases where the plaintiff sues merely as a member of the public in respect of a public right in the full
sense, it is not necessary to prove it in the case of quasi- public rights where the plaintiff sues as a member of the
limited class whose special rights have been infringed. 39 The Calcutta High Court has expressed the same view
as the Patna High Court. 40 The former Chief Court of Oudh held that no suit for obstructing a public thoroughfare
can be maintained in a civil Court without proof of special injury. 41 The Madras High Court has, in a Full Bench
case, laid down that a person or body of persons who claim, a right to go in procession along a public way can bring
a suit to establish that right against a person who threatens to obstruct it without allegation or proof of special
damage. An order of a Magistrate forbidding a person or body of persons from using a highway for the purpose of
processions invests the person or persons interdicted with a cause of action, if they allege it to be an infringement
of their legal rights, and no special damage need be alleged or proved. 42 This view has been upheld by the Privy
Council. 43 The Supreme Court 44 has accepted the view of the Privy Council and has extended 45 it to cover
the right to hold meetings at a suitable time and place on a public street. Members of a religious body possess the
right to conduct a religious procession along a public highway and a suit lies against a person preventing the
regular conduct or progress of such procession. 46 But if anobstruction is caused by something being done under
statutory authority no action lies. For example, if overhead electric wires laid under statutory authority cause
obstruction to a tazia procession, no action will lie. 47 The Madras High Court has further held that it is the inherent
right of every member of the public to take out a procession whether it be religious, social or political, along public
streets and pathways so long as the rights of others to use the public pathways similarly are not infringed. There is
no reason why a distinction should be made between a religious procession and a funeral procession in this
respect. 48 The Allahabad and the Nagpur High Courts have held likewise. 49 The Bombay High Court has laid
down that a citizen or a community or a section of a community has an inherent right to conduct a non-religious
procession along a public road. He has also the right to file a declaratory suit without proof of special damage. Any
such inherent right is subject to the right of other citizens also to use the highway in a lawful manner and also
subject to any orders issued by the State for the purpose of preventing breaches of the public peace and for
maintaining law and order. The question whether a procession has a right to play music or not is always a question
of fact. It would depend upon whether music is an appropriate observance of the particular procession. 50
The House of Lords has more recently held: “the law to be that the public highway is a public place which the public
may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private
nuisance and does not obstruct the highway by unreasonably impending the primary right of the public to pass and
repass; within these qualifications there is a public right of peaceful assembly on the highway.” 51
In recent years this right of user of highway has been misused in India by harmful agitations bandhs etc. causing
destruction of public and private property sometime personal injury and death. The Supreme Court in Destruction of
Public and Private Properties in Re. v. State of Andhra Pradesh 52 took suo motu notice of this menace and issued
certain guidelines to be observed until they are substituted by statutory provisions. The guidelines are:
1 To effectuate the modalities for preventive action and adding teeth to the enquiry/investigation, the following
guidelines are to be observed:
As soon as there is a demonstration organized:
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(I) The organizer shall meet the police to review and revise the route to be taken and to lay down conditions
for a peaceful march or protest;
(II) All weapons, including knives, lathis and the like shall be prohibited.
(III) An undertaking is to be provided by the organizers to ensure a peaceful march with marshal's at each
relevant junction;
(IV) The police and the State Government shall ensure videography of such protests to the maximum
extent possible;
(V) The person-in-charge to supervise the demonstration shall be SP (if the situation is confined to the
district) and the highest police officer in the State, where the situation stretches beyond one district;
(VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are
videographed through private operators and also request such further information from the media and
others on the incidents in question;
(VII) The police shall immediately inform the State Government with reports on the events, including
damage, if any, caused by the police; and
(VIII) The State Government shall prepare a report on the police reports and other information that may be
available to it and shall file a petition including its report in the High Court or the Supreme Court as the
case may be for the Court in question to take suo motu action.
2 In the absence of legislation the following guidelines are to be adopted to assess damages:
(I) Wherever a mass destruction to property takes place due to protests or thereof, the High Court may
issue suo motu action and set up a machinery to investigate the damage caused and to award
compensation related thereto.
(II) Where there is more than one State involved, such action may be taken by the Supreme Court.
(III) In each case, the High Court or the Supreme Court, as the case may be, appoint a sitting or retired
High Court Judge or a sitting or retired District Judge as a Claims Commissioner to estimate the
damages and investigate liability.
(IV) An assessor may be appointed to assist the Claims Commissioner.
(V) The Claims Commissioner and the assessor may seek instructions from the High Court or the Supreme
Court as the case may be, to summon the existing video or other recordings from private and public
sources to pinpoint the damage and establish nexus with the perpetrators of the damage.
(VI) The principles of absolute liability shall apply once the nexus with the event that precipitated the
damage is established.
(VII) The liability will be borne by the actual perpetrators of the crime as well as the organizers of the event
giving rise to the liability – to be shared, as finally determined by the High Court or the Supreme Court
as the case may be.
(VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the damages
liable to be paid.
(IX) Damages shall be assessed for:
(a) damages to public property;
(b) damages to private property;
(c) damages causing injury or death to a person or persons; and
(d) cost of the actions by the authorities and police to take preventive and other actions.
(X) The Claims Commissioner will make a report to the High Court or the Supreme Court which will
determine the liability after hearing the parties.”
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Where the access to the plaintiff's premises was obstructed by reason of the assembling of a crowd at the
defendant's theatre and the formation of a queue in front of his premises; 53 and where horses and wagons were
kept standing for an unreasonable time in the highway opposite a man's house, so that the access of customers
was obstructed, the house was darkened, and the people in it were annoyed by bad smells, 54 it was held that an
action lay as particular, direct and substantial’ damage was caused to plaintiff.
7(J) Right of privacy and confidentiality
A right to undisturbed privacy is not recognised by the English law. 55 It is quite true that the opening of a new
window looking into the grounds of another may not only annoy that neighbour, but may often affect the value of the
property. But the law of England considers that no injury. However, if interference with privacy is of such a nature as
to amount to a recognised tort, resort to that tort action may be taken to prevent the interference. 56 For example,
harassment by persistent telephone calls may amount to a nuisance, 57 and installation of a secret evesdropping
device may amount to trespass. 58 The courts have also recognised that an obligation of confidence can arise out
of particular relationships apart from contract; and breach of confidentiality can be prevented by restraining by
injunction publication of confidential information to the detriment of the plaintiff. 59 The basis of the jurisdiction is
the equitable principle of confidence. The particular relationships which give rise to an obligation of confidence may
be professional, commercial, matrimonial or even political.
The relationship of doctor and patient gives rise to right of confidentiality and the doctor is under a duty not to
disclose the secrets of a patient that have been learnt by him in the course of his professional work. 60 But there is
no breach of this duty when the disclosure is made to save a person from a serious and identifiable risk of infection
from the patient. 61 Thus hospital authorities were not held to be liable for breach of confidentiality or for violating
the right of privacy of a patient who was HIV(+) in disclosing that information to the party whom the patient was
intending to marry and who was ignorant of that fact. 62 A company wished to collect data on the prescribing habits
of general practitioners and to that end it sought to persuade doctors and pharmacists to disclose prescription
information without revealing the identity of patients. On objection being taken by the Department of Health it was
held on judicial review that the disclosure of anonymous information by doctors and pharmacists would not
constitute breach of duty of confidence to patients as their identity was protected and they had no proprietorial claim
to the prescription. 63 The principle emerging from the case is that in a case involving personal confidence, the
disclosure of information by a confident would not constitute a breach of confidence provided that the confider's
identity is protected and it was immaterial that the disclosed information was not in the public domain. 64
Solicitors and Accountants also owe continuing professional duty to a former client to preserve the confidentiality of
information imparted during the subsistence of that relationship and not to misuse it. Therefore, if a firm of
accountants providing litigation support service, in possession of confidential information of a former client,
proposes to act for another client, having an adverse interest in a matter where that information may be relevant,
injunction can be granted to restrain the firm from doing so. 65 But the duty of confidentiality may be overridden by
a higher duty. Thus if the auditors of a company discovered that a senior employee was defrauding the company on
a massive scale, there would normally be a duty to report the discovery immediately to the management. And, if the
auditors suspected that the management might be involved in or condoning fraud a duty may arise to report directly
to a third party without the management's knowledge or consent. The duty to report in such a situation will override
the duty of confidentiality. 66
In case of business affairs, 67 the detriment to the confider, in a case of breach of confidence, say by an employee,
is clear. In matrimonial affairs, the breach may be only an invasion of personal privacy e.g., revelation of marital
confidences. In cases where confidential information is disclosed by a servant of the Crown, injunction can be
granted only when the disclosure affects public interest. So, when the information has already been published by
others and has become known to the public, no injunction can be granted. But a person or newspaper deriving the
information from the servant and publishing it at a time when it was not publicly known and thereby deriving profit
cannot be allowed to benefit by its own wrong and must account for the profits to the Crown. 68
The right of Privacy in the sense of being let alone by governmental interference is a developing concept. Article 8
of the European Convention on Human Rights defines this right as follows : “(1) Every one has the right to respect
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for his private and family life, his home and his correspondence. (2) There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with the law and is necessary in democratic
society in the interests of national security, public safety or the economic well being of the country, for the
prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms
of others.” 69 The European Convention on Human Rights has been enforced in England by the Human Rights
Act, 1998. The Act was enforced from 2nd October, 2000 and is not retrospective. 70 Therefore, persons suffering
invasion of privacy, when as visitors to prison, they were strip-searched and suffered distress and humiliation could
not complain invasion of privacy. 71 The convention in Article 10 also guarantees the right to freedom of
expression. In an action for restraining a publication which allegedly infringes right to privacy of the claimant the
court may be required to balance these two conflicting rights. The Court of Appeal in A.V.B. (a company) 72
formulated guidelines for the courts to be observed before grant of an interim injunction restraining publication. In
this case the claimant for injunction was a noted footballer who had extra-marital relations with two women who
both sold their stories to a national newspaper. The claimant sought an injunction to prevent publication of the
stories so that his wife may not know about his adultery. The trial judge granted the interim injunction which was
vacated in appeal by the Court of appeal. In doing so and in holding that the balance lay in favour of right of
expression the court took into account the factors that the claimant was a noted footballer in whom the media and a
section of the public would be interested that the confidentiality of sexual relations outside marriage was not of that
importance as the confidentiality between married persons and that as the women had chosen to disclose the
relationship it further affected the claimant's right for protection of the in formation.
The question of privacy/confidentiality in the light of Articles 8 and 10 of the convention was considered by the
House of Lords in Campbell v. Mirror Group Newspapers Ltd. 73 The convention rights are generally enforceable
in disputes between individuals and public authorities but the values enshrined in Articles 8 and 10 have given new
breadth and strength to the action for breach of confidence between individuals or between an individual and a non-
Government body. 74 The tort of breach of confidence now does not require the need for existence of intial
confidential relationship between the parties. Now the law imposes a ‘duty of confidence’ whenever a person
receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. 75 The
essence of the tort is misuse of information about a person's private life. In this case the claimant Miss. Campbell
was a celebrated fashion model well known nationally and internationally. On February 1, 2001 the defendant
newspaper Daily Mirror carried an article about Miss. Campbell. The information contained in the article consisted
of the following five matters: (1) The fact that Miss. Campbell was a drug addict, (2) The fact that she was receiving
treatment for her addiction; (3) The fact that the treatment which she was receiving was provided by Narcotics
Anonymous (NA); (4) Details of the treatment—for how long, how frequently and at what times of day she had been
receiving it, the nature of it and extent of her commitment to the process; and (5) A visual portrayal by means of
photographs, covertly taken of her when she was leaving the place where treatment had been taking place. The
claimant accepted that the newspaper had been entitled in public interest to publish matters 1 and 2 or in other
words to disclose the information that she was a drug addict and was receiving treatment for her addiction as she
had previously falsely and publicly stated that unlike many others in the fashion business she was not a drug addict.
She, however, brought proceedings for breach of confidence and compensation by adding matters 3, 4 and 5 that is
with respect to the additional information and photograph published relating to her attendance at N.A. The claim
was allowed by the trial judge but was dismissed by the Court of Appeal. The House of Lords by a majority of 3
against 2 (but without any substantial difference on the question of application of principles) 76 allowed the appeal
and restored the judgment of the trial judge. The factors that influenced the court were: It was well-known that
persons who were addicted to the taking of illegal drugs could benefit from meetings at which they discussed and
faced up to the addiction. The private nature of the meetings encouraged addicts to attend them in the belief that
they could do so anonymously. The assurance of privacy was essential part of this exercise and the treatment was
at risk if the details of the treatment which were obviously private were made public. There was thus potential for
the disclosure of the implementation by publication to cause harm to the claimant, disrupt her treatment and was
expected to be offensive and distressing to her. On the other hand there were no political or democratic values at
stake, nor was there any pressing social need in support of the publication. Thus balancing the right of privacy of
the claimant against the right of the media to impart information to the public the balance lay in favour of the
claimant. Although the High Court of Australia is not inclined to recognize the tort of privacy as recognized in USA
(Australia Broadcasting Corporation v. Lenah Game Meats Pty. Ltd. , (2001) 76 ALJR 1) the test laid down by
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Gleeson C.J. in this case for determining whether the information is private or public has been quoted by English
Courts and also by the House of Lords in this case. 77 The relevant passage in Gleeson C.J.'s judgment reads as
follows:
“An activity is not private simply because it is not done in public. It does not suffice to make an act private that,
because it occurs on private property, it has such measure of protection from the public gaze as the
characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner
combine to afford. Certain kinds of information about a person, such as information relating to health, personal
relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a
reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant
to be unobserved. The requirement that disclosure or observation of information or conduct would be highly
offensive to a reasonable person of ordinary, sensibilities is in many circumstances a useful practical test of
what is private.”
After quoting the above passage Lord Hope in Campbell's case expressed himself as follows: 78
“The test which GLEESON C.J. has identified is useful in cases where there is room for doubt, especially
where the information relates to an activity or course of conduct such as the slaughtering methods that were in
issue in that case. But it is important not to lose sight of the remarks which preceded it. The test is not needed
where the information can easily be identified as private. It is also important to bear in mind its source, and the
guidance which the source offers as to whether the information is public or private. It is taken from the definition
of the privacy tort in the United States, where the right of privacy is invaded if the matter which is publicised is
of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the
public: Restatement of the Law of Torts (Second) , (1977) p. 383, Art. 652D. The reference to a person of
ordinary sensibilities is, as Gleeson CJ acknowledged in his footnote (at 13), a quotation from William, L
Prosser Privacy, (1960) 48 Calif LR 383. As Dean Prosser put it (pp. 396-397), the matter made public must be
one which would be offensive and objectionable to a reasonable man of ordinary sensibilities, who must expect
some reporting of his daily activities. The law of privacy is not intended for the protection of the unduly
sensitive.”
In the task of balancing right to respect for private and family life with right to freedom of expression in deciding
whether the court should restrain publication of a particular matter or allow its publication, the following four
propositions have been deduced from the decision of the House of Lords in Campbell v. Mirror Group Newspaper
Ltd . 79 These propositions called as “balancing test” are: (1) Neither of the rights has as such precedence over the
other; (2) Where the values under the two are in conflict, an intense focus on the comparative importance of the
specific rights being claimed in the individual case is necessary; (3) The justification for interfering with or restricting
each right must be taken into account. (4) The proportionality tests must be applied to each. In res ’ (a child)
(identification : restriction on publication ) 80 where the balancing test was culled out the question related to the
newspapers’ right to publish proceedings of a criminal case disclosing identity of mother, who was being held for
murder of her child and the identity of the deceased child against the right of another child to prohibit publication of
information relating to his identification. The court allowed publication of the proceedings of the trial including the
names and photographs of the parents and the deceased child except proceedings of a court sitting in private.
The magazine OK contracted for the exclusive right to publish photographs of a celebrity wedding at which all other
photographers would be forbidden. The rival magazine Hello published photographs which it knew to have been
surreptitiously taken by an unauthorized photographer pretending to be a waiter or guest. OK claimed damages
against Hello for breach of confidence. The information in question, namely the photographs, was capable of being
protected because it was of commercial value over which the celebrity couple had sufficient control to enable them
to impose an obligation of confidence. There was no reason of public policy why the law of confidence should not
protect information of this form and subject-matter. Accordingly OK was held entitled to bring proceedings for
breach of an obligation to itself and claim damages against Hello. 81
In India, the right to Privacy in the above sense, although not in terms guaranteed, has been reasoned out of the
provisions of Article 21 and other provisions of the Constitution relating to fundamental rights; but its precise limits
have yet to be established. 82 It has in this context been held that police survillance of a person, by domicilliary
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visits and other acts, to be valid must be supported by law and must be unobtrusive and reasonable for the purpose
of prevention of crime by potential offenders. 83 Telephone tapping also violates right to privacy under Article 21
unless it is according to the procedure established by law which lays down proper safeguards. 84
In R. Rajgopal v. State of Tamil Nadu 85 the Supreme Court reaffirmed that “the right to privacy is implicit in the
right to life and liberty guaranteed to the citizens of this country under Article 21. It is a right to be let alone!” 86 The
Court elaborated this right in words: “A citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education” 87 The Court further observed: “None can publish anything
concerning the above matters without his consent—whether truthful or otherwise or whether laudatory or critical. If
he does so he would be violating the right to privacy of the person concerned and would be liable in an action for
damages. Position would be different if a person voluntarily thrusts himself into controversy or voluntarily invites or
raises a controversy.” 88 The above observations would go to indicate that right of privacy whether against
Government or private persons flows from Articles 21 which does not appear to be correct. Article 21 is a guarantee
against the State and its instrumentalities as defined in Article 12 but not against private persons. (See footnote 48,
p. 53). The right of privacy against private persons in terms stated by the Court can be availed of by statutory
modification or extension of the Law of Torts as has been done in the United States. 89 This has been pointed out
by Soli J. Sorabji who feels that extension of the common law is the tacit basis of the court's holding. 90 Rajgopal's
case also points out that once a matter becomes a matter of public records, including court records, the right to
privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others
subject to decency in respect of females 91 and possibly also to what may be necessary for protection of children.
92 The law relating to right to privacy was again reviewed in District Registrar and Collector Hyderabad v. Canara
Bank 93 in which foreign and Indian cases along with relevant international conventions were referred and the right
of privacy was held to arise from Article 21 and also from Article 19(1) (a) and (d) of the Constitution. 94 It was also
held that right to privacy deals with ‘persons and not places’. 95 It was further held that legislative provision relating
to search, seizure and inspection of documents by a public officer or his delegate without proper-justification and
reasonable safeguards will be held invalid. 96 Reference in this case was also made to Articles 17 and 19 of the
International Covenant on Civil and Political Rights which is enforced in India by the Protection of Human Rights
Act, 1993. These articles in this covenant deal with right to privacy and right to freedom of expression and
correspond to Articles 8 and 10 of the European Convention which have been interpreted by the House of Lords in
Campbell v. M.G.N. Ltd. , 97 discussed above.
Customary right.— Indian law further recognises a right to privacy to protect females from observation. This right to
privacy may be acquired by virtue of a local custom or grant or special permission. 98 The right of privacy does not
arise from prescription but is a creation of custom. It is limited to particular apartments secluded from general
observation. 1 Such an easement, founded as it is on the oriental custom of secluding females, is of much
importance in India. The Law Commissioners who framed the Indian Easements Act have also recognized it.
The Bombay High Court has held that in accordance with the usage of Gujarat, an invasion of privacy is an
actionable wrong, and that a man may not open new doors or windows in his house, or make any new apertures, or
enlarge old ones, in a way which will enable him to overlook those portions of his neighbour's premises which are
ordinarily secluded from observation, and so intrude upon his privacy. 2 The recognition of a right of privacy in
Gujarat and Saurashtra means nothing more than that such a right is not unknown in this area. It does not suggest
that everyone in this area is entitled to rely on such custom without showing that such a right has been acquired by
him by enjoyment of it for a sufficient time and further that it is not oppressive. What time of enjoyment will be
sufficient to give right of privacy will depend upon many relevant circumstances like people and nature of locality
and the degree of civilization within it. 3 This right of action is not altered by the fact that a public road runs
between the dominant and the servient tenements. 4 But, where a window opened by the defendant commanded a
view, not of the plaintiff's private apartments, but of an open courtyard outside his house, it was held that there had
been no invasion of the plaintiff's privacy which would entitle him to have the window closed. 5 In a case from
Dharwar the Bombay High Court decided that to establish such an exceptional privilege, as was customary in the
towns of Gujarat, evidence of the most satisfactory character was necessary. 6
In Bengal this right has been recognised. 7 It is supposed to have been based upon prescription or grant, or
express local usage. 8 Privacy is not an inherent right of property like a right to ancient light and air. 9
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The Patna High Court has also held that the right to privacy is not an inherent right of a party and can arise only by
express usage, by grant or by special permission. 10
The Madras High Court is of opinion that the invasion of privacy by opening windows is not treated by the law as a
wrong for which any remedy is given. 11 A right of privacy is not an actionable wrong unless such a right has been
in enjoyment by the plaintiff as a custom. 12 The person whose privacy is so invaded has it in his power to build on
his own ground so as to shut out the view from the offending window. 13
The Allahabad High Court is not unanimous on the point that a customary right of privacy exists everywhere in the
Uttar Pradesh or that every individual is entitled to rely on such a custom. A substantial interference with such a
right, where it exists, affords such owners good cause of action. 14 But the custom of privacy should not be carried
to an oppressive length. 15 The customary right of privacy is confined to the protection of pardanashin women and
to those parts of the house, which are ordinarily occupied by females, and which have been so occupied and used
for a period sufficiently long to establish a right of privacy. It cannot be extended to all apartments of a house
whether occupied by males or females, which at any time have not been overlooked. 16 The customary right of
privacy can be said to exist only in respect of the inner courtyard. 17 Further, the right to privacy being a customary
right, it is always open to the Court to see whether the custom is, in the circumstances, reasonable and whether it
has ceased to be enforceable by desuetude. 18 The right of privacy is a right which attaches to property and is not
dependent on the religion of the owner thereof. 19
The former Chief Court of Punjab was of opinion that a right of privacy existed in Punjab, and, if opening of new
windows invaded such a right, an action might be brought. 20 There is no inherent right of privacy attaching to any
property and this is specially so in a town, and such a right must be acquired by usage or by grant. 21 The fact that
the occupant of a house can from its roof look into his neighbour's house or yard does not empower him to open
such window as he pleases. 22
The former Chief Court of Oudh adopted the earlier view of the Allahabad High Court. 23
As regards Madhya Pradesh, it has been held that the right of privacy cannot be acquired as an easement but can
be acquired by virtue of a local custom which must be strictly proved. 24
For an infringement of this right a suit can be instituted by the owner of the building 25 or even by a lessee. 26 But
the customary right of privacy must be pleaded and proved. 27 In the absence of such a right a person cannot
restrain his neighbour from opening new windows; but he can block the windows by raising his own wall. 28
7(K) Right of Prospect
The law does not recognise a view or prospect from a house as a right in the nature of an easement which can
belong to anybody as of right and no period of enjoyment will give a person a right of action against another who on
his land erects a structure or plants trees which obstruct the view or prospect. 29
7(L) Profits a prendre 7(L)(i) General
Profits a prendre is a right to take from the servient tenement some part of the soil of that tenement, or some part of
its natural produce, or animals ferae naturae existing upon it. It is a right to take something off the land of another
person. 30 The right of depasturing cattle on another's land; the right to cut therefrom and carry away turf or wood
for burning within one's dwelling house; the right to dig for and carry away stone, slate, coal and minerals; the right
to shoot and sport over another's land, and carry away and consume the game killed; or the right to fish in the water
of an estate or of a manor, and carry away and consume the fish taken, are all denominated as profits a prendre in
English law, but they fall into the category of easements according to Indian law. 31 A profits a prendre on
another's soil cannot be acquired by custom, however, ancient, uniform and clear the exercise of that custom may
have been; and an unlimited profits a prendre on another's soil cannot be claimed by prescription. 32 The usually
accepted classes of profits a prendre are described below.
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7(L)(ii) Right of Common
Right of common is a right which one person, who is not the owner, has of taking some part of the natural produce
of land belonging to another.
Right of pasture is recognised in England as well as in India. This right, in its widest sense, comprises all vegetable
products that may be eaten by cattle or human beings such as grass, nuts, leaves, etc. 33
Right of fishery which a person might possess in any piece of water is not a right to the fish living in such water at
any time, for fish, like other farae naturae , cannot, except in certain instances, be in the possession or dominion of
any man until it is actually captured, but it is simply a right to catch them. This right may exist either in connection
with, or independently of, the ownership of the soil, over which water stands or flows. In England, the right of the
Crown to grant several fishery in a river is restricted by two conditions, viz. (1) the river must be both tidal and
navigable, and (2) the grant must be proved or presumed to have been made not later than the reign of King Hanry
II. 34 A person commits a wrong when he fishes in another's fishery, whether he takes fish or not; or when he
disturbs, or drives away, 35 or destroys, the fish in a fishery; or diverts the water to an unreasonable extent; or
pollutes a several fishery and damages the fish. 36
Indian law.— Right of fishery is considered as profits a prendre in English law, but is regarded as easement under
the Indian Easements Act. Private rights of fishery in public waters may be acquired either by a grant from the
Government or by prescription from which a grant may be presumed.37 But no grant can be presumed in favour of
a fluctuating and unascertained body of persons such as all fishermen residing in adjoining villages, but such a right
may be acquired under custom. 38 In India the Government can grant several fishery as an incorporeal right to a
private individual in non-navigable rivers or in any land-locked water apart from the right to the subjacent soil to
such grantee. 39 A common of fishery is the liberty of fishing in another man's water in common with the owner of
the soil and perhaps also with others who may have the same right. Several or free fishery is an exclusive right to
fish in a given place, and may exist either with or without property in the soil. Several or free fishery can be acquired
either by grant or prescription. 40 The right of the public to fish in the sea is common and is not the subject of
property. Members of the public exercising the common right to fish in the sea should exercise that right in a fair
and reasonable manner and not so as to impede others from doing the same. 41 The Bombay High Court has ruled
that a summary action under s. 9 of the Specific Relief Act, 1877,42 for restitution of possession of an exclusive
fishery, whether such fishery be territorial or a right in alieno solo, may be entertained provided the conditions
specified in that section be satisfied. 43 But the Calcutta High Court has held that this form of action does not apply
to rights of fishery of the latter kind. 44 This diversity is due to the difference of opinion between the two High
Courts, as to the meaning of the phrase “immovable property” used in that section, which makes this form of action
perty alone. The Patna High Court has held that an exclusive right of fishery is an interest in immovable property
and may be acquired by twelve years’ adverse possession involving an ouster of the rightful owner. But a mere right
to fish not excluding the rightful owner is a profits a prendre and falls within the definition of easement given ins.
2(5) of the Indian Limitation Act, 1908 and may be acquired by twenty years’ uninterrupted enjoyment. 45
7(L)(iii) Right of ferry
A ferry is the exclusive right to carry passengers and goods across a river or arm of the sea from one village to
another, or to connect a continuous line of road leading from one township or village to another. 46 A ferry is a
highway common to all the people paying the toll 47 usually across a large and deep river.
The right is an incorporeal right. 48 It arises by royal grant or by prescription. The owner of a ferry has not a grant
of an exclusive right of carrying passengers and goods across the stream by any means whatever, but only a grant
of an exclusive right to carry them across by means of a ferry. 49 If a bridge is constructed near a ferry connecting
the same highway as the ferry, the owner of the ferry has no remedy for divergence of the traffic. 50
In India the right of ferry or an interest therein is immovable property within the meaning of the Specific Relief Act,
1877, s.9.51 The right of establishing a private ferry and levying tolls is recognised here. Twenty years is the
shortest period within which such a right of ferry can be established. 52 But in a later case the Calcutta High Court
has held that such rights can only be acquired by grant from the Government. 53 The Bombay High Court has
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adopted this view and held that the right to a ferry franchise cannot be acquired by prescription, but there must be
facts proved from which, if there is no direct grant from the Government, it can be implied that such grant was
actually made. 54
Infringement.— To create a disturbance of the right of a ferry owner, there must be carrying of passengers and
merchandise from point to point in the line of the ferry. 55 Disturbance of the ferry must be proved. 56 If the traffic
conveyed by the defendant is different from that dealt with by the plaintiff, there is no disturbance of the plaintiff's
ferry. 57
The plea that the legal ferry is not sufficient for the public convenience does not avail . 58
7(L)(iv) Right of market
Originally it was considered a great benefit to towns to give them a fair or market; and this was thought so beneficial
that it was thought right, not only to give the fair or market, but also to grant a charter so as to prevent persons from
disturbing the market.The right to prevent persons from selling marketable goods on market days in their private
houses (though within the town or manor where the market may be held) may be acquired by immemorial
enjoyment or prescription. 59
The Calcutta High Court has held that in Bengal there is no such thing as market franchise or a right to hold a
market conferred by grant from the Government, nor can such right be acquired by prescription. The proprietor of
an old market has, therefore, no monopoly or privilege which is entitled to protection and no immunity from
competition. He has no remedy at law merely because his profits are diminished. 60
Infringment.— If a man brings his commodities for sale so near a market as to obtain the benefit of it without paying
the toll, that is a fraud upon the market, for which an action will lie at the suit of the Lord of the market. 61 Right to
hold a market to the exclusion of others is infringed by opening of a rival market. The plaintiff in such a case can
recover loss of profits of his market as damages. 62 If no loss is proved he can get only nominal damages and he
is not entitled to claim the profits earned by the defendant by holding the rival market. 63
1
Entick v. Carrington , (1765) 19 St Tr 1066. Plaintiff in possession of Government land and planting trees.
Trees cut by Kerala State Electricity Board. Board without any claim or title held liable for damages for
cutting trees. The Secretary K.S.E.B. v. M. V. Abraham, AIR 2007 Ker 12 [LNIND 2006 KER 592]: (2006) 4
KLT 770 [LNIND 2006 KER 592].
2
Basely v. Clarkson , (1682) 3 Lev 37.

3
(1965) 1 QB 232 : (1964) 3 WLR 573.

4
(1959) 1 QB 426 : (1959) 2 WLR 241.

5
See, Chapter XI Trespass to Person Title 1, Introduction.
6
Conway v. George Wimpey & Co. Ltd ., (1951) 2 KB 266, pp. 273, 274 : (1951) 1 TLR 587; Joliffe v.
Willmett & Co ., (1971) 1 All ER 478 : 114 SJ 119.
7
Page 37 of 77
Smith v. Stone , (1647) Style 65.

8
Mann v. Saulnier , (1959) 19 DLR (2d) 130, p. 132.

9
Corbett v. Hill , (1870) LR 9 Eq 671, p. 673; Willcox v. Kettel , (1937) 1 All ER 227.
10
Cox v. Glee, (1848) 5 CB 533.

11
Dovaston v. Payne , (1795) 2 HBI 527 ; Harrison v. Duke of Rutland, (1893) 1 QB 142.
12
Latino Andre v. Union Govt ., AIR 1968 Goa 132 .

13
Akola Electric Supply Co. Ltd. v. Gulbai, (1951) NLJ 44.

14
Kickman v. Maisey, (1900) 1 QB 752.

15
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 [LNIND 1985 SC 215] : AIR 1986 SC 180.
16
Bombay Hawkers Union v. Bombay Municipal Corporation, (1985) 3 SCC 528 [LNIND 1985 SC 208] : AIR
1985 SC 1206.
17
Dr. P. Navinkumar v. Municipal Corporation for Greater Bombay , AIR 1989 Bom 88 [LNIND 1988 BOM
243].
18
See cases in notes 15 to 17, supra and Municipal Corporation Delhi v. Gurnam Kaur , AIR 1989 SC 38 :
(1989) 1 SCC 101 [LNIND 1988 SC 441].
19
Minister of Health v. Bellotti, (1944) KB 298; Canadian Pacific Ry. v. Gaud, (1949) 2 KB 239, pp. 249, 254,
255 : 93 SJ 45; R. v. Jones, (1976) 1 WLR 672 : (1976) 3 WLR 54.
20
Southpart Corporation v. Esso Petroleum, (1954) 2 QB 182, 240.

21
McDonald v. Associate Fuels , (1954) 3 DLR 775.

22
Martin v. Reynolds Metal Co ., (1959) 221 Ore 86.

Page 38 of 77
23
Lawrence v. Obee , (1815) 1 Stark 22.

24
Gregory v. Piper , (1829) 9 B & C 591.

25
Pickering v. Rudd , (1815) 1 Stark, 56, 58; Paul v. Summerhayes, (1878) 4 QBD 9.
26
Corbett v. Hill , (1870) LR 9 Eq 671. The projecting of a cornice over another's land amounts to trespass:
Ramasubbier v. Shenbagaratnam , (1926) 25 MLW 154.
27
Muhammad Shafi v. Bindeshri Saran Singh , (1923) ILR 46 All 52. The owner of land can sue for removal of
trees and for recovery of possession of the land at any time within twelve years; ibid .
28
Turner v. Thorne , (1959) 21 DLR (2d) 29.

29
McDonald v. Associated Fuels , (1954) 3 DLR 775.

30
But if stones are allowed to fall on the plaintiff's land from a dilapidated construction on the defendant's land
it is nuisance. See Mann v. Saulnier , (1959) 19 DLR (2d) 130, p. 132.
31
Masters v. London Borough of Brent , (1978) 2 All ER 664 : (1979) QB 841.

32
Abdul Gani v. Sadu Ram and others , (1978) ILR 28 Raj 42.
33
Wandsworth Board of Works v. United Telephone Co ., (1884) 13 QBD 904, 927.

34
Bernstein of Leigh (Baron) v. Skyviews & General Ltd ., (1977) 2 All ER 902 : (1978) QB 479 : (1977) 3
WLR 136.
35
Ibid.
36
Ambadas v. Dattatraya, (1944) NLJ 467.

37
Kelson v. Imperial Tobacco Co. Ltd ., (1957) 2 QB 334 : (1957) 2 WLR 1007 : (1975) 2 All ER 343.
38
Page 39 of 77
Armstrong v. Shepphard & Short Ltd ., (1959) 2 All ER 651, (1959) 2 QB 384.
39
Bernstein of Leigh (Baron) v. Skyviews & General Ltd ., (1977) 2 All ER 902 : (1978) QB 479.
40
12, 13 & 14 Geo VI, ch 57.
41
Act XXII of 1934.
42
Holmes v. Wilson , (1839) 10 Ad & E 503.

43
Konskier v. B. Goodman Ltd., (1928) 1 KB 421 : 44 TLR 91 : 138 LT 481.

44
Balkrishna Savalram Pujari Waghmare v. Dyaneshwar Maharaj Sansthan , AIR 1959 SC 798 (807). (Case
unders. 23. Limitation Act, 1908). For dispossession see title 4.
45
Jacobs v. Seward , (1872) LR 5 HL 464. See Mahesh Narain v. Nowbat Pathak , (1905) ILR 32 Cal 837;
Balaram Guria v. Shyama Charan Mandal , (1920) 24 CWN 1057; Harsukh Rai v. Darshan Singh, (1931)
33 PLR 93.
46
Cresswell v. Hedges , (1862) 31 L 3 Ex 497.

47
Wilkinson v. Haygarth, (1846) 12 QB 837.

48
Punjab National Bank Ltd., Sheikhpura v. Pars Ram , (1940) ILR 22 Lah 246.
49
Murray v. Hall, (1849) 7 CB 441.

50
Gopee Kishen v. Hem Chunder , (1870) 13 WR 322. The Court accordingly granted an injunction
preventing a tenant-in-common from erecting a building on the common property without the consent of his
co-sharers (Dirgpaul v. Bhondo Rai , (1867) 2 Agra HC 341; Mehdee Hossein Khan v. Aujud Ali , (1874) 6
NWP 259; Gooroo Dass Dhur v. Bejoy Gobinda , (1868) 1 Beng LR (ACJ) 108 : 10 WR 171; Holloway v.
Sheikh Wahed Ali , (1871) 12 Beng LR 191 n, : 16 WR 140; Sheopersad Singh v. Leela Singh , (1873) 12
Beng LR 188 : 20 WR 160; Shadi v. Anup Singh , (1889) ILR 12 All 436 (FB) Najju Khan v. Imtiaz-ud-din ,
(1895) ILR 18 All 115; Muhammad Ali Jan v. Faiz Baksh , (1896) ILR 18 All 361: or from erecting a
nowbuthkhana or a scaffolding supporting a platform (Rajendro Lall Gossami v. Shama Churn Lahori ,
(1879) ILR 5 Cal 188); or from erecting an overhanging structure over a joint lane (Hans Raj v. Jagat Singh,
(1937) 39 PLR 875 ); or from planting indigo (Stalkartt v. Gopal Panday , (1873) 12 Beng LR 197 : 20 WR
168; Lloyd v. Sogra , (1876) 25 WR 313; Debee Pershad v. Gujadur , (1876) 25 WR 374; Holloway v.
Muddon Mohan , (1882) ILR 8 Cal 446; or Ijmali lands (Crowdee v. Bhekhdari Singh , (1871) 8 Beng LR
Page 40 of 77
(Appx) 45; Crowdy v. Inder Roy , (1872) 18 WR 408; Hunooman Singh v. Crowdie , (1875) 23 WR 428;
Watson & Co. v. Ramchand Dutt , (1890) ILR 18 Cal 10).
51
Gooroo Dass Dhur v. Bejoy Gobinda , (1868) 1 Beng LR (ACJ) 138; Bissambur Shaha v. Shib Chunder ,
(1874) 22 WR 286; Rajendro Lall Gossami v. Shama Churn Lahori, sup.; Shadi v. Anup Singh, sup.,
Kankayya v. Narasimhulu , (1895) ILR 18 Mad 38.
52
Lala Biswambharlal v. Rajaram , (1869) 3 Beng LR (Appx) 67 : 13 WR 337n, where a jointowner was
allowed to erect a wall upon the joint property without the consent of the co-owner as there was no
evidence of injury to the co-owner. Similarly, the Court did not, under like conditions, interfere to prevent a
joint-owner from erecting a hut or challa [Nobin Chandra Mitter v. Mahes Chandra Mitter , (1869) 3 Beng LR
(Appx) 111 ]; or from erecting a building [Dwarkanath v. Goopeenath , (1871) 12 Beng LR 189 n, 16 WR
10; Massin Mollah v. Panjoo Ghoramee , (1874) 21 WR 373; Doorga Lall v. Lalla Hulwant , (1876) 25 WR
306; Nocury Lall Chukerbutty v. Bindabun Chunder Chuckerbutty , (1882) ILR 8 Cal 708; Paras Ram v.
Sherjit , (1887) ILR 9 All 661]; or from building a jute factory on lands which were agricultural and
horticultural (The Shamnugger Jute Factory Co. v. Ram Narain Chatterjee , (1886) ILR 14 Cal 189); or from
planting a garden (Sree Chand v. Nim Chand , (1870) 5 Beng LR (Appx) 25 : 13 WR 337); or from
excavating a tank in agricultural lands (Joy Chunder Rukhit v. Bippro Churn Rukhit , (1886) ILR 14 Cal
236); or from digging a tank and building a school-room and manufacturing bricks (Mohima Chunder v.
Madhub Chunder , (1875) 24 WR 80).
53
Ram Bahadur Pal v. Ram Shanker , (1905) 2 ALJR 455 (FB). But see Ananda Chandra Sen v. Parbati Nath
Sen, (1906) 4 CLJ 198, where it is said that substantial injury should be proved by the plaintiff.
54
Ellis v. Loftus Iron Co ., (1874) LR 10 CP 10, 23; Sagril v. Melivard , (1443) YB 21 Hen VI p. 33; Cox v.
Burbidge, (1863) 13 CBNS 430.
55
Bayle v. Tamlyn , (1827) 6 B & C 329; Moidin Kutti v. Koman Nair, (1912) 12 MLTS 538.
56
Sreehuree Roy v. James Hill , (1868) 9 WR 156.

57
Cox v. Burbidge, (1863) 13 CBNS 430, p. 440 (WILLES, J.)

58
Buckle v. Holmes, (1926) 2 KB 125 : 42 TLR 369.

59
Heath's Garage Ltd. v. Hodges, (1916) 2 KB 370.

60
Deen v. Davies, (1935) 2 KB 282 : 51 TLR 398.

61
Ellis v. Johnstone , (1963) 1 All ER 286.

Page 41 of 77
62
Gayler & Pope Ltd. v. B. Davies & Sons Ltd ., (1924) 2 KB 75 : 40 TLR 591; Brackenborough v. Spalding
U.D.C., (1942) AC 310, (321).
63
Deen v. Davies, (1935) 2 KB 282 : 51 TLR 398.

64
Searle v. Wallbank , (1947) All ER 12 : (1947) AC 341 : 176 LT 104 (HL).

65
Batlivale v. West , (1970) 1 All ER 332.

66
See text and notes 8 and 9, p. 397, infra .

67
Ellis v. Leftus Iron Co ., (1874) LR 10 CP 10.

68
Wormald v. Cole , (1954) 1 All ER 683 : (1954) 2 WLR 613.

69
Brock v. Richards , (1951) 1 All ER 261 : (1951) 1 KB 529 : (1959) 1 TLR 69.
70
Heaths Garage Ltd. v. Hodges, (1916) 2 KB 370.

71
Gomberg v. Smith, (1963) 1 QB 25 : (1962) 2 WLR 749 : (1962) 1 All ER 725; Ellis v. Johnstone, (1963) 2
QB 8. Similarly, when a dog is let out on a lead which is long and loose and this results in injury, the
defendant is liable. See Pitcher v. Martin , (1937) 3 All ER 918 : 53 TLR 903.
72
Aldham v. United Dairies Ltd ., (1940) 1 KB 507.

73
Anderson v. Buckton , (1815) 1 Str. 192.

74
Hamps v. Darby, (1948) 2 KB 311 : (1948) 2 All ER 474.

75
Sutcliffe v. Holmes , (1946) 2 All ER 599 : (1947) KB 147 : 62 TLR 733.

76
Herbert Richard Farrington v. Munisami, (1949) 2 MLJ 143 [LNIND 1949 MAD 45] : 62 MLW 493 : (1949)
MWN 472.
77
Page 42 of 77
Wallis v. Hands, (1893) 2 Ch 75 : 68 LT 428; Midnapur Zamindari Co. Ltd. v. Ram Kanai Singh Deo Darpa
Saha , (1925) ILR 5 Pat 80.
78
Graham v. Peat , (1801) 1 East 244; Harker v. Birbeck , (1764) 3 Burr 1556; Catteris v. Cowper , (1812) 4
Taunt 547.
79
Butcher v. Butcher , (1827) 7 B & C 399, 402.

80
Anderson v. Radcliffe, (1860) 29 LJQB 128.

81
Barnett v. Earl of Guildford , (1855) 11 Ex 19.

82
Parum Sookh v. Seeta Ram , (1867) 2 Agra HC 119; Gibbon v. Abdur Rahman Khan , (1869) 3 Beng LR
(ACJ) 411; Poorun Chand v. Pareshnath , (1869) 12 WR 82.
83
Ismail Ariff v. Mahamad Ghouse , (1893) 20 IA 99 (PC).

84
Nicholls v. Ely Beet Sugar Factory, (1931) 2 Ch 84 : 145 LT 113.

85
Graham v. Peat , (1801) 1 East 244; Chambers v. Donaldson , (1809) 11 East 65. See Somiammal v.
Vellaya Sethurayan, (1914) 29 MLJ 233.
86
See further title 4 ‘Dispossession’, p. 404.

87
Danai Das v. Govinda Gedi , (1916) 1 PLJ 533; Norendra v. Bhusan, (1920) 31 CLJ 495.
88
Inder Nath v. Nand Ram , (1952) ILR 2 Raj 919.

89
Mohammed Bux v. Gani Mohammed , (1953) ILR 4 [LNIND 1951 RAJ 45] Raj 191.
90
Teeluk Rai v. Ramjus Rai , (1873) 5 NWP 182; Lutchmun v. Dabee , (1868) 3 Agra HC 264; Ghunshyam v.
Runjeet , (1865) 4 WR (Act X) 39; contra, Luchmun v. Seami , (1866) 5 WR (Act X) 93.
91
Venkatachalam Chetty v. Andiappan Ambalam , (1879) ILR 2 Mad 232; Dheermoney v. Croft , (1865) 3 WR
(SC REF) 20; Monindro v. Muneeruddeen Biswas , (1873) 20 WR 230 : 11 Beng LR (Appx) 40; Ram
Chandra Jana v. Jiban Chandra , (1868) 1 Beng LR (ACJ) 203. In a suit for possession by one trespasser
Page 43 of 77
on Government land against another, the one who has paid Government revenue on the land has a better
title than the one who has never paid any revenue : Tun Aung v. Ma Htee, (1918) 12 BLT 263.
92
Browne v. Dawson , (1840) 12 Ad & E 624, 629.

93
Scott v. Mathew Brown & Co ., (1885) 51 LT 746; Hemmings v. Stoke Poges Golf Club, (1920) 1 KB 720 :
36 TLR 77 : 122 LT 479 (CA); Sitaram v. Jaswantsingh, (1951) NLJ 477.
94
Edwick v. Hawkes , (1881) 18 Ch D 199.

95
Ram Rattan v. State of Uttar Pradesh , AIR 1977 SC 619 : (1977) 1 SCC 188 [LNIND 1976 SC 454] : 1977
SCC (Cri) 85 [LNIND 1976 SC 454] ; Krishna Ram Mahale v. Mrs. Shobha Venkat Rao , AIR 1989 SC
2097, p. 2100 : (1989) 4 SCC 131.
96
BULLEN, p. 227. The remedy of distress damage feasant in respect of animals is now abolished by s. 7 of
the Animals Act, 1971 which substitutes a right to seize, detain and sell livestock which has strayed on to
one's land and which is not then in the control of any other person.
1
Ambergate v. Midland Ry ., (1853) 2 El & Bl 793 : 23 LJQB 17.

2
Wormer v. Biggs , (1845) 2 C & K 31.

3
Sorrel v. Paget , (1949) 2 All ER 609 : (1950) 1 KB 252 : 65 TLR 295.

4
Sheolal v. Amakabai , ILR (1955) Nag 710.

5
Arthur v. Anker , (1996) 3 All ER 783 (CA), p. 789.

6
Ibid , pp. 789 to 791.

7
Ibid , p. 788.
8
Act I of 1871.
9
See Chokat Ahir v. Suraj Singh , AIR 1940 Pat 299 ; Faiyazkhan v. Rex , AIR 1949 All 180 [LNIND 1948
ALL 13]; Krishna Sahu v. Chaitan Das , AIR 1966 Orissa 191 . There is a controversy whether cattle which
have left the land after trespass can be seized : see Birdha v. State , AIR 1959 Raj 124; Kali Gator Sura v.
State , AIR 1966 Gujarat 221 .
Page 44 of 77
10
Marshall v. The Ulleswater Company , (1871) LR 7 QB 166; Bourke v. Davis, (1899) 44 Ch 110.
11
Thomas v. Sorrell , (1674) Vaug 330.

12
Ditcham v. Bond , (1814) 3 Camp 524. As to licences see the Easements Act, 1882, Sections 52-64.
13
Winter Garden Theatre Ltd. v. Millenium Productions Ltd ., (1948) AC 173 : 63 TLR 579 : (1947) All ER 331
(HL).
14
Hurst v. Picture Theatres Limited, (1915) 1 KB 1 : 111 LT 973 : 30 TLR 642 approved in Winter Garden
case, supra .
15
Said v. Butt, (1920) 3 KB 497.

16
Thompson v. Park, (1944) KB 408.

17
Section 60, Easements Act, 1882; See Chevalier I.I. Iyyappan v. Dharmodayam Co. , AIR 1966 SC 1017 :
(1963) 1 SCR 85 [LNIND 1962 SC 130].
18
Growther v. Ramsbottan , (1798) 7 TR 654.

19
(1604) 5 Coke 91, 1 Sm. LC 104. Considered in Plenty v. Dillon , (1991) 91 Australian Law Journal 231 (HC
Australia) where it is held that a police officer has no right under the law of South Australia, whether
common law or statutory, to enter private property in order to serve a summons without the consent of the
person in or entitled to possession of the land and without any implied leave or licence.
20
Hutchison v. Birch , (1812) 4 Taunt 619, Ratcliffe v. Burton , (1802) 3 B & P 223, commented upon; Lee v.
Gansel , (1774) 1 Cowp 1; Lloyd v. Sandilands , (1818) 8 Taunt 250.
21
Eagleton v. Gutteridge , (1843) 11 M & W 465; Pugh v. Griffith , (1838) 7 A & E 827; Aga Kurboolie
Mahomed v. The Queen, (1843) 4 MPC 239.
22
Semayne v. Gresham , (1604) Coke Vol. III BK. V. f. 91.

23
PER MELVILL, J., in Dadabhai Narsidas v. The Sub-Collertor of Broach, (1870) 7 BHC (ACJ) 82 (85).
24
Page 45 of 77
Bai Kuwar v. Venidas Gangarm, (1871) 8 BHC (ACJ) 127 ; Sodamini Dasi v. Jageswar Sur , (1870) 5 Beng
LR (Appx) 27; Damodar Parsotam v. Ishwar Jetha , (1878) ILR 3 Bom 89.
25
Hodder v. Williams, (1895) 2 QB 663.

26
Cope v. Sharpe , (No.2) (1912) 1 KB 496 : 28 TLR 157 : 106 LT 56.

27
Taunton v. Costar , (1797) 7 TR 431; Browne v. Dawson , (1840) 12 A & E 624; Delaney v. Fox, (1856) 1
CBNS 166; Jones v. Foley, (1891) 1 QB 730.
28
Turner v. Meymott , (1823) 1 Bing 158 ; Davision v.Wilson, (1848) 11 QB 890; Wright v. Burroughs, (1846)
3 CB 685.
29
Hemmings v. Stoke Poges Golf Club, (1920) 1 KB 720, 738 : 122 LT 479 : 36 TLR 77, overruling Newton v.
Harland , (1840) 1 Man & G 644; Beddal v. Maitland , (1881) 17 Ch D 174; Edwick v. Hawkes , (1381) 18
Ch D 199.
30
XLVII of 1963, s. 6. See further p. 405, infra .

31
Bom Act II of 1906, s. 5.
32
Per SARGENT, C.J., in Bandu v. Naba , (1890) ILR 15 Bom 238, 241; Lillu v. Annaji Parashram , (1881)
ILR 5 Bom 387; Hillaya v. Narayanappa , (1911) 13 Bom LR 1200 [LNIND 1911 BOM 143] ; ILR 36 Bom
185.
33
Rame Gowda v. M. Vardappa Naidu, (2004) 1 SCC 769 [LNIND 2003 SC 1092], p. 775 : AIR 2004 SC
4609.
34
Ibid. Followed in Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, (2009) 3 SCC 306 [LNIND
2008 SC 1196] para 13 : (2008) 7 JT 323.
35
Puran Singh v. State of Punjab, (1975) 4 SCC 518 [LNIND 1975 SC 174], p. 527 : AIR 1975 SC 1674;
Rama Gowda v. M. Vardappa, (2004) 1 SCC 769 [LNIND 2003 SC 1092], p. 776.
36
Patrick v. Colerick , (1838) 3 M & W 483; Viner's Abridg., Trespass, (1)a.

37
Anthony v. Haney , (1832) 8 Bing 186.

Page 46 of 77
38
Anthony v. Haney , (1832) 8 Bing 186.

39
Lemmon v. Webb, (1895) AC 1 : 11 TLR 81 : 71 LT 647; Smith v. Giddy, (1904) 2 KB 448; Hari Krishna
Joshi v. Shankar Vithal , (1894) ILR 19 Bom 420; Vishnu v. Vasudeo , (1918) 20 Bom LR 826 [LNIND 1918
BOM 89] ; ILR 43 Bom 164; Putraya v. Krishna Gota , (1934) 40 MLW 639; Arumugha Goundan v.
Rangaswami Goundan , (1938) 47 MLW 324. See Ch. XXI, Nuisance, Remedies.
40
Someshwar v. Chunilal , (1919) 22 Bom LR 790; ILR 44 Bom 605.

41
Section 36 (Act V of 1882).

42
Raghunath Patnaik v. Dullabha Behera , ILR 1951 Cut 522.

43
See Withwham v. Westminster Brymbo Coal & Coke Co ., (1896) 2 Ch 538.

44
Nalder v. Ilford Corporation, (1951) 1 KB 822 : 114 JP 594 : (1950) 2 All ER 903. But see Chapter IX title
1(D)(vii) text and notes 55 to 58, pp. 237, 238.
45
Jafferson v. Jafferson , (1683) 3 Lev 130. See Beramji v. The Secretary of State for India, (1887) PJ 205.
46
Burma Railways Co. Ltd. v. Maung Hla Tin , (1927) ILR 5 Ran 813. In this case the Court held that a lessee
from Government, who has only grazing and cultivation rights over a piece of land and is not entitled to
extract any minerals or earth therefrom, cannot claim the value of any earth removed, and can only claim
damages for deprivation of the use of part of the surface of the earth i.e. the diminution in the value of his
land.
47
Panna Lal Ghose v. The Adjai Coal Co. Ltd., (1926) 31 CWN 82.
48
Sreehuree Roy v. James Hill , (1868) 9 WR 156; Ramaswami Chettiar v. Suppiah Chettiar, (1935) 69 MLJ
98 [LNIND 1935 MAD 105] : 42 MLW 404 : (1935) MWN 868. If defendant persists in fighting when he
knows or ought to know that he is wrong, the Court will grant substantial damages : Soha Lal v. Amba
Prasad , (1922) 20 ALJR 888.
49
Dyamoyee Dayee v. Madhoo Soodun , (1865) 3 WR 147.

50
Ramaswami Nayakar v. Meenakshisundaram Chettiar, (1924) 47 MLJ 922.

51
Page 47 of 77
(1968) 2 QB 299 : (1968) 1 All ER 229 : (1968) 2 WLR 201.

52
(1980) 2 All ER 368 (CA) p. 373.
53
(1610) Co. Rep. vol. IV, Bk. VIII, f. 146 (a), (b); Smith's Leading Cases, Vol I, 134 (13th Edition). Referred
to in Cinnamond v. British Airports Authority , (1980) 2 All ER 368 (CA) p. 373 : (1980) 1 WLR 582.
54
Shortland v. Govett , (1826) 5 B & C 485.

55
(1610) 8 Coke 146 a : 1 Sm L.C. 134.
56
Brojendra Kissore Ray Choudhuri v. M.A. Luffeman , (1908) 12 CWN 982, following Smith v. Egginton ,
(1837) 7 Ad & El 167.
57
Candian Pacific Wine Co. v. Tuley, (1921) 2 AC 417; Elias v. Pasmore, (1934) 2 KB 164 : 150 LT 438 : 50
TLR 196.
58
Six Carpenters ’ case (1610) 1 Sm LC 134.

59
(1980) 2 All ER 368 : (1980) 1 WLR 582 : 124 SJ 221 (CA).

60
Ibid . pp. 372, 373.

61
Elias v. Pasmore, (1934) 2 KB 164 : 150 LT 438 : 50 TL 196.

62
Chick Fashions (West Wales) Ltd. v. Jones, (1968) 2 QB 299 : (1968) 1 All ER 229.
63
Gobind Lall Seal v. Debendronath Mullick , (1880) ILR 6 Cal 311.

64
P & W 85; Sundara Sastrial v. Govinda Mandaroyan, (1908) 19 MLJ 309.

65
Buckingham Shire County Council v. Moran , (1989) 2 All ER 225 (CA).

66
See p. 400 text and notes 33 to 35.

67
Sudhir Jaggi v. Sunil Akash Sinha Choudhry, (2004) 7 SCC 515, p. 520 : AIR 2005 SC 1243.
Page 48 of 77
68
Kumar Kalyan Prasad v. Kulanand Vairk , AIR 1985 Pat 374, pp. 375, 376 approved in Sudhir Jaggi's case
supra , footnote 67.
69
Asher v. Whitlock , (1865) LR 1 QB 1, 5; Perry v. Clissold, (1907) AC 73; Allen v. Rivington , (1617) 2
Saund 111 : (1969) 2 WLR 1399; Allen v. Roughly , (1955) 94 CLR 98; Ocean Estates Ltd. v. Pinder,
(1969) 2 AC 19 (25).
70
Davison v. Gent , (1857) 1 H & N 744.

71
PER PATTERSON, J., in Doe dem. Carter v. Barnard, (1849) 13 QB 945 (953); Vide also Nagle v. Shea ,
(1874) 8 Ir. CLR 224, (1875) 9 Ir. CLR 389; Doe dem Crisp v. Barber , (1788) 2 TR 749. See Bala v. Abai ,
(1909) 11 Bom LR 1093; Sitaram v. Sadhu , (1913) 16 Bom LR 132 : ILR 38 Bom 240.
72
Doe dem. Smith v. Webber , (1834) 1 A & E 119; Doe dem. Hughes v. Dyeball , (1829) Mood & Mal 346.
73
Dutton v. Manchester Airport Plc., (1999) 2 All ER 675 : (2000) QB 133 : (1999) 3 WLR 524 (CA).
74
Vide also the Indian Evidence Act, s. 116.
75
Ibid .
76
Yeshwantsingh v. Jagdish Singh , AIR 1968 SC 620 (1968) 2 SCR 203 [LNIND 1967 SC 351] : 1969 Mh LJ
496 (case under section 326 ; Qanan Mal Gwalior which was in Pari materia with section 6, Specific Relief
Act, 1963);M. Chocklingam v. Manichava Sagam , AIR 1974 SC 104. State of U.P. v. Maharaja
Dharmendra Pd. Singh , AIR 1989 SC 997, p. 1004; Anamallai Club v. Govt. of Tamil Nadu , AIR 1997 SC
3650, pp. 3651-3653 : (1997) 3 SCC 169; Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3
SCC 137 [LNIND 2004 SC 102], p. 150 (para 24). For nature of possession of a tenant after expiry of lease
see R.V. Bhupal Prasad v. State of Andhra Pradesh, (1995) 5 SCC 698 [LNIND 1995 SC 772] : (1995) 5
Scale 41 : AIR 1996 SC 140.
77
Krishna Ram Mahale v. Mrs. Shobha Venkat Rao , AIR 1989 SC 2097, p. 2101 : (1989) 4 SCC 131; East
India Hotels Ltd. v. Syndicate Bank , (1991) 6 JT 112 : (1992) Supp. 2 SCC 29.
78
Somnath Berman v. Dr. S.P. Raju , AIR 1970 SC 846 (849, 852) (approving Narayana Row v. Dharmachar
, (1903) ILR 26 Mad 514; Yeshwant v. Vasudeo , (1884) ILR 8 Bom 371; Umrao Singh v. Ramji Das ,
(1914) ILR 36 All 51; Subodh Gopal Bose v. Prince of Bihar , AIR 1950 Pat 222 and overruling contrary
view of the Calcutta High Court in Debi Churn Boldo v. Issur Chunder Manjee , (1883) ILR 9 Cal 39 and
other cases); Nair Service Society Ltd. v. K.C. Alexander , AIR 1968 SC 1165 : (1968) 3 SCR 163 [LNIND
1968 SC 41] ; Biharilal v. Smt. Bhuridevi , AIR 1997 SC 1879, pp. 1883, 1884 : (1997) 2 SCC 279 [LNIND
1996 SC 2818] ; Ramesh Chandra Ardawatiya v. Anil Panjwani , AIR 2003 SC 2508, p. 2521 : (2003) 7
Page 49 of 77
SCC 350 [LNIND 2003 SC 504]. See further Rama Gowda v. Vardappa Naidu, (2004) 1 SCC 769 [LNIND
2003 SC 1092] : AIR 2004 SC 4609.
79
Ismail Ariff v. Mohomed Ghouse , (1893) ILR 20 Cal 834; Sunder v. Parbati , (1889) ILR 12 All 51 : 16 IA
186.
80
Jowala Buksh v. Dharum Singh , (1866) 10 MIA 511; Thakur Basant Singh v. Mahabir Pershad , (1913) 15
Bom LR 525 (530) : 40 IA 86.
81
Somnath Berman v. Dr. S.P. Raju , AIR 1970 SC 846 (849) : (1969) 3 SCC 129 [LNIND 1969 SC 410].
82
Prataprai N. Kothari v. John Braganza , AIR 1999 SC 1666 p. 1668 (para 11) : (1999) 4 SCC 403 [LNIND
1999 SC 483].
83
Nagar Palika Jind v. Jagat Singh , AIR 1995 SC 1377 : (1995) 2 Scale 512 : (1995) 3 SCC 426 [LNIND
1995 SC 431] ; Mahadeo Savlaram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33; Sopan
Sukhdeo Sable v. Assistant charity Commissioners, (2004) 3 SCC 137 [LNIND 2004 SC 102], pp. 150, 151
: AIR 2004 SC 1801, pp. 1807, 1808.
84

85
Ibid , p. 777 (para 11).

86
(2008) 4 SCC 594 [LNIND 2008 SC 748] : AIR 2008 SC 2033, (para 23 of SCC).
87
(2005) 6 SCC 202 [LNIND 2005 SC 525].

88
Mount Cormel Investment Ltd. v. Peter Thurlow Ltd ., (1988) 3 All ER 129 : (1988) 1 WLR 1078 (CA).
89
Nair Service Society Ltd. v. K.C. Alexander , AIR 1968 SC 1165 : (1968) 3 SCR 163 [LNIND 1968 SC 41].
90
Maung Kye v. Maung Tha Han , ILR (1924) 2 Ran 488.

91
Section 2(12) , Civil Procedure Code, 1908;Harry v. Bhagu , (1930) 57 IA 105; Fatehchand v. Balkrishan
Dass , AIR 1963 SC 1405 : (1964) 1 SCR 515 [LNIND 1963 SC 20] ; Mahant Narayan Dassji v. Tripathi
Devasthanam , AIR 1965 SC 1231.
Page 50 of 77
92
Mount Carmel Investment Ltd. v. Peter Thurlow Ltd ., (1983) 3 All ER 129 (CA).
1
Inverugie Investment Ltd. v. Hackett , (1995) 3 All ER 841 : (1995) 1 WLR 731 (PC).
2
Fatehchand v. Balkrishan Das , AIR 1963 SC 1405 : (1964) 1 SCR 515 [LNIND 1963 SC 20].
3
Bedingfield v. Onslow , (1797) 3 Lev 209.

4
Kidgill v. Moor, (1850) 9 CB 364.

5
Metropolitan Association for Improving the Dwellings of the Industrious Classes v. Peth , (1858) 27 LJ CP
330.
6
Greenslade v. Halliday , (1830) 6 Bing 379.

7
Baxter v. Taylor , (1832) 4 B & Ad. 72; Rust v. Victoria Graving Dock Co., and London and St.Katharine
Dock Col ., (1887) 36 Ch D 113; Shelfer v. City of London Electric Lighting Co ., (1895) 1 Ch 287, 318 : 43
WR 238.
8
Patta Kumari v. Nirmal Kumar , (1947) 51 CWN 544.

9
BLACKSTONE, Vol. II, p. 281; Doe dem Grubb v. Earl of Brulington , (1833) 5 B & A 507, 517; Jones v.
Chappell , (1875) LR 20 Eq 539; Tucker v. Linger , (1882) 21 Ch D 18, 8 App Cas 508; West Ham Central
Charity Board v. East London Waterworks Co., (1900) 1 Ch 624; Simmons v. Norton , (1831) 7 Bing 640 ;
City of London v. Greyme, (1608) Cro Jac 181.
10
See section 108 of Transfer of Property Act.

11
Girish Chandra Chando v. Sirish Chadra Das , (1904) 9 CWN 255.

12
Sriram Chukrabutty v. Kumar Hari Narain Sinha Deo Bahadur , (1905) 10 CWN 425.
13
Budhun v. Fuzloor , (1868) 9 WR 362; Maharani v. Nanda Lal , (1868) 1 Beng LR (ACJ) 27 : 10 WR 73;
Gobindmani v. Shamlal , (1864) Beng LR (Sup Vol) 48; Shama Soonduree v. Jumoona , (1875) 24 WR 86;
Hurrydass v. Shreemutty , (1856) 6 MIA 433; Loll Soonder Doss v. Hury Kishen Doss , (1862) Marsh 113,
Subnom, Hurrykishen Doss v. Loll Soonder Doss , (1862) 1 Hay 339.
Page 51 of 77
14
Meux v. Cobley, (1892) 2 Ch 253.

15
State of Bihar v. Subodh Gopal Bose , AIR 1968 SC 281 : (1968) 1 SCR 313 [LNIND 1967 SC 241]. For
immemorial user, see Patneedi Rudrayya v. Velugubantla Venkayya , AIR 1961 SC 1821 : (1962) 1 SCR
836 [LNIND 1961 SC 163].
16
State of Bihar v. Subodh Gopal Bose, supra .

17
See section 33, Easements Act, 1882; Chapsibhai Dhanji Bhai Daud v. Purshottom , AIR 1971 SC 1878,
(1885, 1886) : (1971) 2 SCC 205 [LNIND 1971 SC 225].
18
Pain & Co. v. St. Neots Gas Co ., (1939) 3 All ER 812 (823).
19
SALMOND & HEUSTON, Torts, 18th edn., p.72.
20
Ibid.
21
Ibid.
22
Humphries v. Brogden, (1850) 12 QB 739 (744) Hunt v. Peake , (1860) 29 LJ Ch 785; Backhouse v.
Bonomi, (1861) 9 HLC 503 ; Rasiklal v. Savailal , (1954) 57 Bom LR 239.
23
Rowbotham v. Wilson , (1857) 8 E & B 123.

24
Backhouse v. Bonomi, sup; Tamluk Trading & Manufacturing Co. Ltd., v. Nabadwipchandra Nandi , (1931)
ILR 59 Cal 363.
25
Wyatt v. Harrison , (1832) 3 B & Ad 871; Partridge v. Scott , (1838) 3 M & W 220; Bengal Provincial Rly.
Co. Ltd. v. Rajanee Kanta De , (1935) ILR 63 Cal 441; Panchanan Mandal v. Smt. Swelata Roy Mandal ,
AIR 1980 Cal 325 [LNIND 1980 CAL 149]; M.L. Mathew v. K.R. Gopalkrishnan , AIR 1991 Kerala 248
[LNIND 1991 KER 62], p. 250.
26
Smith v. Thackerah , (1866) LR 1 CP 564. See Corporation of Birmigham v. Allen , (1877) 6 Ch D 294;
Greenwell v. Law Beechburn Coal Co., (1897) 2 QB 165.
27
See text and note 38, p. 413, infra .

Page 52 of 77
28
Backhouse v. Bonomi, (1861) 9 HLC 503 ; Mitchell v. Darley Main Colliery Co ., (1884) 14 QBD 125 (140),
Attorney-General v. Conduit Colliery Company, (1895) 1 QB 301 (311). In Smith v. Thackerah, (1866)
LRCP 564, however, it has been held that the infringement of the right of support does not give rise to a
cause of action unless there is appreciable damage. See to the same effect, A. Minus v. E. Davey , ILR
(1932) 11 Ran 47.
29
Darley Main Colliery Co. v. Mitchell, (1886) 11 AC 127 : 54 LT 882 : 2 TLR 301.
30
Tamluk Trading and Manufacturing Co. Ltd. v. Nabadwipchandra Nandi , (1931) ILR 59 Cal 363.
31
Prasanna Deb Raikat v. The Darjeeling Himalayan Railway Co. Ltd ., (1935) 61 CLJ 503.
32
Humphries v. Brogden, (1850) 12 QB 739; Backhouse v. Bonomi, (1861) 9 HLC 503 ; Ambalal Khora v.
The Bihar Hosiery Mills Ltd. , ILR (1937) 16 Pat 545 .
33
Cox v. Glue, (1848) 5 CB 533.

34
Backhouse v. Bonomi, sup ; Act V of 1882, s. 34.

35
Attorney-General v. Conduit Colliery Company, (1895) 1 QB 301, 311.

36
Darley Main Colliery Co. v. Mitchell , (1886) 11 App Cas 127 : 54 LT 882 : 2 TLR 301.
37
Rigby v. Bennett , (1882) 21 Ch D 599.

38
Backhouse v. Bonomi, (1861) 9 HLC 503 : 34 LJQB 181 : 4 LT 754.

39
Brown v. Robins , (1859) 4 H & N 186.

40
Dalton v. Angus , (1881) 6 App Cas 740 : 44 LT 884.

41
Backhouse v. Bonomi, (1861) 9 HLC 503 34 LJQB 181 : 4 LT 754.

42
Dalton v. Angus , (1881) 6 App Cas 740 : 44 LT 884. S owned a house, which had stood for sixteen years
only on a piece of land adjoining M's land. M, for the purpose of building a house on his said land, laid the
Page 53 of 77
foundations. S's land then gave way, thereby causing injury to his house. For this injury he sued M for
damages, alleging negligence on the part of M in sinking the foundations of his house. On the evidence the
Court found that the ultimate cause of the collapse of the ground under S's house was one which was
beyond the reach of M. It was held that, at the highest, S had against M a natural right of support to his
land, but no right whatever in respect of the building imposed on it, unless and until they had been there for
twenty years, and that the only damages which S could claim would be in respect of the infringement of the
right to support of his land : S.D. Shaikh Yacoob v. Maung Ohn Ghine , (1901) 8 Burma LR 1. See also
Bauribandhu v. Sagar , AIR 1966 Ori 86 [LNIND 1965 ORI 54].
43
Solomon v. Vintners’ Co. , (1859) 4 H & N 585, 598.

44
Partridge v. Scott , (1838) 3 M & W 220.

45
Peyton v. The Mayor, etc., of London , (1829) 9 B & C 725, 736.

46
Dodd v. Holme , (1834) 1 A & E 493; Bond v. Nottingham Corporation, (1940) 1 Ch 429.
47
Richards v. Rose , (1854) 9 Ex 218; Howarth v. Armstrong, (1897) 77 LT 61.

48
Solomon v. Vintners Co. , (1859) 4 H & N 585, 598.

49
Backhouse v. Bonomi, (1861) 9 HLC 503. See Act V of 1882, s. 34. See Corporation of Birmingham v.
Allen , (1877) 6 Ch D 284; N. Ramakrishna Iyer v. Seetharama Iyer , (1912) MWN 1117.
50
See note 42, p. 414.

51
Lemaitre v. Davis , (1881) 19 Ch D 281.

52
Phipps v. Pears, (1965) 1 QB 76, p. 83 (LORD DONNING, M.R.).

53
Elliot v. N.E. Ry ., (1863) 10 HLC 333 ; Popplewell v. Hodkinson , (1869) LR 4 Ex 248. Long Brook
Properties Ltd. v. Surrey County Council, (1970) 1 WLR 161.
54
Popplewell v. Hodkinson , (1869) LR 4 Ex 248.

55
Jordeson v. Sutton Southcoats and Drypool Gas Co ., (1899) 2 Ch D 217. See Trinidad Asphalt Co. v.
Ambard, (1899) AC 594.
56
Page 54 of 77
Appa Rao v. Seetharmayya , ILR (1939) Mad 45.

57
Lyon v. Fishmongers’ Co. , (1876) 1 App Cas 662.

58
Dawood Hashim Esoof v. C. Tuck Sein , (1931) ILR 9 Ran 122 : 33 Bom LR 897 (PC).
59
M’ Nab v. Robertson, (1897) AC 129. See Gopalan Krishna Yachendrulu Varu v. Secretary of State, (1914)
16 MLT 597. Watercourse’ also denotes the stream itself as it flows in a channel : Collins v. Ten Broeke ,
(1896) PR No. 71 of 1896; Secretary of State for India in Council v. Rajah Shivrama Prasad , ILR (1943)
Mad 846.
60
Mason v. Hill , (1833) 5 B & Ad 1; John Young & Co. v. Bankier D. Co ., (1893) AC 691; Debi Pershad
Singh v. Joynath Singh , (1897) ILR 24 Cal 865 : 24 IA 60; Maung Bya v. Maung Kyi Nyo , (1925) 52 IA 385
: 27 Bom LR 1427; Khushalbhai v. Secretary of State , (1925) 28 Bom LR 614; Tihali Pachya v. Ram Kisan,
(1944) NLJ 374.
61
The standard of reasonableness applies to the volume of water that he can divert to the purpose for which
he can utilise is as also to the mode or method that he may adopt for impounding and channelling such
water: State of Bombay v. Laxman , (1959) 62 Bom LR 106.
62
Perumal v. Ramasami , (1887) ILR 11 Mad 16; Sheikh Monoour v. Kanhya Lal , (1865) 3 WR 218; Athur Ali
Khan v. Sekundar Ali Khan , (1865) 4 WR 28; Sardowan v. Hurbuns , (1869) 11 WR 254; Narayan v.
Keshav , (1898) ILR 23 Bom 506; Waman v. Changu , (1904) 8 Bom LR 87. Dinkar v. Narayan , (1905) 7
Bom LR 265; ILR 29 Bom 357; Maung Hmin Gyaung v. Maung Shwe Min , (1883) SJLB 233; Tha E. v. Lon
Ma Gale , (1904) 3 LBR 23; Baldeo Singh v. Jugal Kishore , (1911) ILR 33 All 619; Wazeera v. Sipadar
Khan , (1867) PR No. 33 of 1867; Murli v. Hanuman Prasad , (1936) ILR 58 All 981; Apparao v.
Seetharamayya , ILR (1939) Mad 45; Kantha Chowdhary v. Dhannu Naikow , ILR (1974) Cuttack 973;
Titlagarh Paper Mills Co. Ltd. v. State of Orissa , ILR (1975) Cuttack 1095. A Arivudai Nambi v. State of
Tamil Nadu , AIR 1990 Mad 240 [LNIND 1989 MAD 22], p. 242. See also illustrations (f) to (j) to section 7
of the Indian Easements Act, 1882.
63
Narayan v. Keshav , (1898) ILR 23 Bom 506; Babu Chumroo Singh v. Mullick Khyrut , (1872) 18 WR 525;
Heeranund v. Mussamut Khubeeroonissa , (1870) 15 WR 516; Mahadu v. Narayan , (1904) 6 Bom LR 291;
Belbhadar Pershad Singh v. Sheikh Barkat Ali , (1906) 11 CWN 85 : 4 CLJ 370; Krishna Dayal (Mahantha)
v. Bhawani Koer , (1917) 3 PLW 5; Jagannadhraju v. Rajah of Vizianagram , ILR (1937) Mad 510 (FB);
State of Bombay v. Laxman , (1959) 62 Bom LR 106. See further Patneedi Rudrayya v. Velugubantla
Venkayya , AIR 1961 SC 1821 : (1962) 1 SCR 836 [LNIND 1961 SC 163] (A reparian owner may protect
himself from extraordinary floods but still he cannot impede the flow of the stream along its natural course.)
64
Dr. K. Anantha Bhat v. K.M. Ganapathy Bhatta , AIR 1981 Ker 102 [LNIND 1981 KER 3].
65
Ramsewak v. Ramgir , (1953) ILR 32 Pat 937.

Page 55 of 77
66
Wood v. Waud , (1849) 3 Ex 748; Shunkur v. Gurbhoo , (1871) 15 WR 216; Kaw La v. Maung Ke , (1916) 8
LBR 556; Appa Rao v. Seetharamayya , ILR (1939) Mad 45.
67
The First Assistant Collector of Nasik v. Shamji Dasrath Patil , (1878) ILR 7 Bom 209. See Debi Pershad
Singh v. Joynath Singh , (1897) ILR 24 Cal 865 : 24 IA 60 (PC), See Venkatchalam Chattiar v. Zamindar of
Sivaganga , (1903) ILR 27 Mad 409.
68
Thomas and Evens Ld. v. Mid-Rhondda Co-operative Society Ld ., (1941) 1 KB 381.

69
Wood v. Waud, (1849) 3 Ex 748, 776, 777; Whitmores (Edenbridge) Ltd. v. Stanford, (1909) 1 Ch 427;
Greatrex v. Hayward, (1853) 8 Ex 291; Yesu Sakharam v. Ladu Nana, (1926) ILR 51 Bom 243 : 29 Bom LR
291; Raman Niar v. Parameswaran Nambudri, (1934) 40 MLW 629 : (1935) MWN 990.
Indian cases. —Water falling on A's land was collected in a reservoir there and used to flow on B's land. It
was held that B had no right to the use of the water, and that A was entitled to erect on his own land a bund
to prevent the water flowing on to B's land: Bunsee Sahoo v. Kalee Pershad, (1869) 13 WR 414; Ramessur
Pershad Narain Sing v. Koonj Behari Pattuk , (1878) ILR 4 Cal 633 : 6 IA 33. An interference by the
defendants with the plaintiff's right as ryotwari landholder to the supply of water from a Government channel
for the irrigation of his lands gives rise to a cause of action against the defendants: Rama Odayan v.
Subramania Aiyar , (1907) ILR 31 Mad 171.
70
Sutcliffe v. Booth , (1863) 32 LJ QB 136; Holker v. Porrit , (1875) LR 10 Ex 59; Bailey & Co v. Clark, Son
and Morland, (1902) 1 Ch 649. See Bhoop Narain Singh v. Kazee Syud Keramut Ali , (1866) 6 WR 99. See
Ram Kirpal Singh v. Hamuman Singh , (1920) 6 PLJ 6 which deals with right where a natural stream flowed
in an artificial channel. The widening a little and deepening a little, and trimming a little of an existing
ancient fresh-water natural watercourse does not convert it into a canal: Maung Bya v. Maung Kyi Nyo ,
(1925) 52 IA 385 : 27 Bom LR 1427.
71
Arkwright v. Gell , (1839) 5 M & W 203; Burrows v. Lang, (1901) 2 Ch 502.

72
Run Bahadoor v. Poodhee , (1864) WR (Gap No.) 319; Buddun Thakor v. Mohunt Shunker Doss , (1864)
WR (Gap. No.) 106; (1864) WR (Gap. No.) 106; Bipin Behari Ghatak v. Ramnath Ghatak , (1928) ILR 56
Cal 161.
73
Rayappan v. Virabhadra , (1884) ILR 7 Mad 530.

74
Adinarayana v. Ramudu , (1912) ILR 37 Mad 304.

75
Muhammadons of Lonar v. Hindus of Lonar , ILR (1948) Nag 698.

76
Page 56 of 77
Narsoo v. Madanlal & Others , AIR 1975 MP 185 [LNIND 1974 MP 64].
77
Ibid.
78
Ibid.
79
Ibid.
80
Mussammat Sarban v. Phudo Sahu , (1922) ILR 2 Pat 110; Robinson & Maniyam v. Ayya , (1872) 7 MHC
37; Perumal v. Ramasami , (1887) ILR 11 Mad 16; Adinarayana v. Ramudu , (1912) ILR 37 Mad 304;
Nagarethna Mudaliar v. Sami Pillai , (1935) ILR 59 Mad 979; Natabar Sasmal v. Krishna Chandra Bera,
(1941) 74 CLJ 95.
81
U Po Thet v. A.L.S.P.P.L. Chettyar Firm , ILR (1936) 14 Ran 544 ; Natabar Sasmal v. Krishna Chandra
Bera, supra .
82
Sankarappa Naicker v. Rani Nachiar, (1913) 25 MLJ 276 [LNIND 1913 MAD 40] ; Gopala Krishna
Yachendrula Varu v. Secretary of State, (1914) 16 MLT 597; Bhagirathi v. Suraj Mal , (1914) 12 ALJR 684;
Moksodali v. Ma Hli , (1923) ILR 1 Ran 427; Ma Hli v. Moksodali , (1924) ILR 2 Ran 450; Sitaram Motiram
v. Keshav , (1945) 48 Bom LR 404 : ILR (1946) Bom 475. See also Satyabadi v. Kasinath , AIR 1964
Orissa 41, where the defendant whose land was at a higher level than the plaintiff's land diverted or
interfered with the normal flow of water in a drainage channel by putting a pipe and thereby brought water
which inundated and damaged the plaintiff's land and crops.
83
Sheikh Hussain Sahib v. Subbayya , (1925) ILR 49 Mad 441 (FB), following Gibbons v. Lenfestey, (1915)
113 LTNS 55 : AIR 1915 PC 165 : (1915) 84 LJ PC 158; Kaosal v. Kodu , ILR (1945) Nag 750; See further
Chandrabhan Singh v. Shital Prasad Chhedi Lal, 1983 MPLJ 729 (lower landowner not bound to drain out
water from his land which comes from upper land unless right acquired by easement.)
84
Patneedi Rudrayya v. Velugubantla Venkayya, AIR 1961 SC 1821 : (1962) 1 SCR 836 [LNIND 1961 SC
163].
85
Cases in note 83 and 84.
86
Supra , note 83.

87
Palmer v. Bowman , (2000) 1 All ER 22 : (2000) 1 WLR 842 (CA); Home Brewery Plc v. William Davies &
Co. , (1987) 1 All ER 637 : (1987) QB 339 : (1987) 2 WLR 117 (QBD).
88
Page 57 of 77
Munshi Misser v. Bhimraj Ram , (1913) ILR 40 Cal 458 (FB).

89
Wood v. Waud , (1849) 3 Ex 748.

90
Dickinson v. Grand Junction Canal Co ., (1852) 7 Ex 282, 300, 301; Dudden v. Guardians of Clutton Union ,
(1857) 1 H & N 627. See Babaji Ramling v. Appa Vithavja , (1923) 25 Bom LR 789 [LNIND 1923 BOM 58].
91
Keshava Bhatta v. Krishna Bhatta , (1944) 59 MLW 94.

92
Acton v. Blundell , (1843) 12 M & W 324.

93
It has been held that right to irrigate plaintiff's land from defendants well cannot be acquired by prescription
on the reasoning that well water is underground water; Het Singh v. Anar Singh , AIR 1982 All 468, But it
has been held that such a right can be acquired from presumed grant on the basis of immemorial user.
Girdhari Singh v. Gokul , AIR 1976 Raj 10.
94
Chasemore v. Richards, (1859) 7 HLC 349 : 7 WR 685; Mayor etc. of Bradford v. Pickles, (1895) AC 587;
M'Nab v. Robertson, (1897) AC 129; Stephens v. Anglian Water Authority , (1987) 3 All ER 379 (C.A.). See
further Chapter (1) text and notes 98 to 3, pp. 17, 18.
95
Ballard v. Tomlison , (1885) 29 Ch D 115.

96
Grand Junction Canal Co. v. Shugar , (1871) LR 6 Ch App Cas 483, 488.
97
Chasemore v. Richards, (1859) 7 HLC 349 : 7 WR 685.

1
Noise Pollution In Re, (2005) 5 SCC 733, (para 10) : AIR 2005 SC 3136; T.N. Godavarman Thirumulpad
(87) v. Union of India, (2006) 1 SCC 1 [LNIND 2005 SC 735] para 77 : AIR 2005 SC 4256.
2
Godavarman Thirumulpad v. Union of India, supra para (1).

3
Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281 [LNIND 1996 SC 353] : (1996) 4
JT 263; Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392 [LNIND 2004 SC 75] : AIR 2004 SC 1834;
Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006) 6 SCC 371 [LNIND 2006 SC 403]
pp. 381, 382 : AIR 2006 SC 2038.
4
Karnataka Industrial Areas Development v. C. Kenchappa , supra page 391, 392 para 103.
Page 58 of 77
See title 7(c) supra .

6
Wood v. Wand , (1849) 3 Exch. 748.

7
Ballard v. Tomlinson , (1885) 29 Ch D 115. See text and note 34, p. 325, infra .
8
Pakkle v. V.P. Aiyasami , AIR 1969 Mad 351 [LNIND 1968 MAD 2].
9
Ibid.
10
Hulley v. Silversprings etc. Co. Ltd ., (1922) 2 Ch. 268; Pride of Derby and Derbyshire Angling Association
v. British Calanese Ltd. , 1953 Ch. 149 : (1953) 1 All ER 179 : (1953) 2 WLR 58.
11
M.C. Mehta v. Union of India , AIR 1988 SC 1037. See further Raju Ranjan Singh v. State of Bihar , AIR
1992 Pat 86 ; Dr K.C. Malhotra v. State of Madhya Pradesh , AIR 1994 MP 48 [LNIND 1993 MP 54].
12
M.C. Mehta v. Union of India , AIR 1988 SC 1115 : (1988) 1 SCC 471 [LNIND 1988 SC 14].
13
(1995) 6 Scale 578 (2). Later the court allowed additional compensation of about Rs. 47 lakhs; see (1996) 4
Scale (SP) 36.
14
(1996) 2 Scale 44 [LNIND 1996 SC 353], p. 69 : AIR 1996 SC 1446 : (1996) 3 SCC 212 [LNIND 1996 SC
353]. See further , p. 55, footnote 58 ante . Also see Vellore Citizens Welfare Forum v. Union of India ,
(1996) 6 Scale 194 pp. 209 to 211 : (1996) 5 SCC 647 [LNIND 1996 SC 1344] for direction to Central
Government under the Environment (Protection) Act, 1986 for preventing pollution by Tanneries and other
polluting industries in Tamilnadu. The court ruled for “sustainable development” as a balancing concept
between ecology and development which requires confirmity with two basic principles, viz : “The
precautionary” principle and the “Pollutor pays” principle. See further on the same lines M.C. Mehta v.
Kamal Nath , 1996 (9) Scale 141, pp. 160, 161; S. Jagannath v. Union of India , (1996) 9 Scale 167 : AIR
1997 SC 811 : (1997) 2 SCC 87 [LNIND 1996 SC 2974].
15
(1996) 9 Scale 141. Affirmed in M.C. Mehta v. Kamalnath , JT 2000 (7) SC 19 [LNIND 2000 SC 893]: AIR
2000 SC 1997 : (2000) 6 SCC 213 [LNIND 2000 SC 893] except regarding imposition of fine in addition to
compensation to the State Government for cost of restoration.
16
(1996) 9 Scale 167 : AIR 1997 SC 811 : (1997) 2 SCC 87 [LNIND 1996 SC 2974].
17
(1996) 9 Scale 141, pp. 160, 161.
Page 59 of 77
18
(1996) 9 Scale 167, pp. 214, 215 : AIR 1997 SC 811 pp. 848, 849, 850 : (1997) 2 SCC 87 [LNIND 1996 SC
2974].
19
M.C. Mehta v. UOI, (1997) 1 Scale 61 [LNIND 1996 SC 2207], pp. 91 to 93 : AIR 1997 SC 734, pp. 760 to
762. See further Fomento Resorts and Hotels Limited v. Minguel Martins, (2009) 3 SCC 571 [LNIND 2009
SC 2947] paras 51 to 65 : (2009) 1 JT 470 [LNIND 2009 SC 2947] (Public Trust doctrine restated and
earlier cases referred. The appellant was required to demolish the obstruction erected which obstructed
approach of the general public to a Beach in Goa).
20
JT 1998 (1) SC 162, pp. 173 to 183 : AIR 1999 SC 812, pp. 819 to 823.
21
AIR 2003 SC 724, pp. 736 to 738 : (2002) 10 SCC 606 [LNIND 2002 SC 676].
22
M.C. Mehta v. Union of India, (2002) 4 SCC 356 [LNIND 1996 SC 2207] : AIR 2002 SC 1696.
23
Noise Pollution (v.) In re, (2005) 5 SCC 733 : AIR 2005 SC 3136.
24
Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Asso., (2000) 7 SCC 282 [LNIND
2000 SC 1165] : AIR 2000 SC 2773.
25
Farhad K. Wadia v. Union of India, (2009) 2 SCC 442 paras 16, 17 : (2008) 12 JT 534 P&H.
26
Ibid , para 22.

27
Ishwar Singh v. State of Haryana , AIR 1996 P&H 30; Obayya Pujary v. Member Secretary , Karnataka
State Pollution Control Board , AIR 1999 Kant. 157 [LNIND 1998 KANT 324].
28
M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu , (1999) 5 JT 42 [LNIND 1999 SC 612] pp. 86, 87 : AIR 1999
SC 2468 : (1999) 6 SCC 464 [LNIND 1999 SC 612].
29
Deepak Nitrite v. State of Gujarat, (2004) 6 SCC 402 [LNIND 2004 SC 614] : AIR 2004 SC 3407.
30
Ibid ., p. 407 (para 6).

31
M.C. Mehta v. Union of India, (1987) 1 SCC 395 [LNIND 1986 SC 539]. See p. 520, post.
Page 60 of 77
32
T.N. Godavarman Thirumulpad (87) v. Union of India, (2006) 1 SCC 1 [LNIND 2005 SC 735] : AIR 2005 SC
4256.
33
T.N. Godavarman Thirumulpad v. Union of India, (2006) 5 SCC 47 [LNIND 2006 SC 259] : (2006) 4 JT 454.
The doctrine of public trust does not exactly prohibit the alienation of property held as a public trust but it
needs a high degree of judicial probity of a Governmental action which restricts the use of property held for
public benefit. Intellectuals Forum Tirupathi v. State of A.P., (2006) 3 SCC 549 [LNIND 2006 SC 119] : AIR
2006 SC 1350; Susetha v. State of Tamil Nadu, (2006) 6 SCC 543 [LNIND 2006 SC 599] : AIR 2006 SC
2893. The doctrine of Sustainable Development, Public Trust etc. also considered in the context of
balancing the need for development for providing shelter and the need for conservation of natural resources
in this case for public tanks in Tirupathi. Intellectuals Forum, Tirupathi v. State of A.P., (2006) 3 SCC 549
[LNIND 2006 SC 119] : AIR 2006 SC 1350.
34
Ballard v. Tomlinson , (1885) 29 Ch D 115. See further Cambridge Water Co. Ltd. v. Eastern Countries
Leather ple , (1994) 1 All ER 53 : (1994) 2 AC 264 : (1994) 2 WLR 53 (HL) discussed at p. 506, post .
35
Pakkle v. V.P. Aiyasami , AIR 1969 Mad 351 [LNIND 1968 MAD 2].
36
Webb v. Bird , (1863) 13 CB NS 841.

37
Bryant v. Lefever, (1879) 4 CPD 172.

38
Cable v. Bryant, (1908) 1 Ch 259; Bass v. Gregory, (1890) 25 QBD 481; Hall v. Lichfild Brewery Co .,
(1880) 49 LJ Ch 655. See Chasty v. Ackland, (1897) AC 155.
39
Act V of 1882, s. 15.
40
Delhi and London Bank Ld. v. Hem Lall Dutt , (1887) ILR 14 Cal 839 ; Pranjivandas Harjivandas v.
Mayaram Samaldas , (1862) 1 BHC 148. Easement of light and air through windows opened in a joint wall
cannot be acquired by prescription: Rajubhai v. Lalbhai , (1925) 28 Bom LR 1000.
41
Barrow v Archer , (1864) 2 Hyde 125.

42
Delhi and London Bank, Ld. v. Hem Lall Dutt , (1887) ILR 14 Cal 839.
43
Sarojini v. Krishna, (1922) 36 CLJ 406.

44
Page 61 of 77
Framji v. Framji , (1904) 7 Bom LR 73; (1905) 7 Bom LR 825; ILR 30 Bom 319.
45
Framji v. Framji , Ibid . English decisions are not of much avail as the conditions in the two countries differ,
Ibid .
46
Per LORD ROMILY M.R. in Crump v. Lombert , (1867) LR 3 Eq 409, 413.

47
Per LORD SELBOURNE in City of London Brewery Co. v. Tenant , (1873) LR 9 Ch 212 (221); Dent v.
Auction Mart Co ., (1866) LR 2 Eq 238.
48
Expl. III to s. 33 of the Indian Easements Act, V of 1882;Chapsibhai Dhanji Bhai Dand v. Purshottam , AIR
1971 SC 1878 (1886) : (1971) 2 SCC 205 [LNIND 1971 SC 225].
49
Delhi and London Bank Ltd. v. Hem Lall Dutt , (1887) ILR 14 Cal 839.
50
Tapling v. Jones, (1865) 11 HLC 290. Independently of an easement right, the right to receive light across
another's land is not a natural incident of property. Unless and until such a right of easement has been
acquired no amount or mode of obstruction is actionable : Rashid Allidina v. Jivan Das Khemji , ILR (1942)
1 Cal 488 .
51
Colls v. Home and Colonial Stores Ltd ., (1904) AC 179, 186, 212. See Paul v. Robinson , (1914) 41 IA 180
: 16 Bom LR 803, followed in Balthazar v. M.A. Patail, (1917) 11 BLT 109; Haji Abdulla Harsoon v.
Municipal Corporation, Karachi , ILR 1941 Karachi 381; Devidas v. Birsingh , ILR 1945 Nag 948.
52
Colls v. Home and Colonial Stores Ltd., Ibid ., p. 186.

53
Corbett v. Jones, (1892) 3 Ch 137.

54
St 2 & 3 Will IV, c. 71, s. 3. The English Statute is only concerned with the mode of proof: Colls v. Home
and Colonial Stores , supra , p. 186.
55
Act V of 1882, s. 15.
56
PER LORD LOREBURN in Jolly v. Kind, (1907) AC 1, 2. See Higgins v. Betts, (1905) 2 Ch 210; Vir Bhan v.
Ramjidas , (1909) PLR No. 33 of 1909; Bhimaji v. Yeshwant , (1929) 31 Bom LR 771.
57
Price v. Hilditch, (1930) 1 Ch 500.

58
Page 62 of 77
Ray v. Hazeldine, (1904) 2 Ch 17; Wheeldon v. Burrows , (1879) 12 Ch D 31.

59
Delhi and London Bank Ld. v. Hem Lall Dutt , (1887) ILR 14 Cal 839; Elliot v. Bhoobun Mohun Bannerjee ,
(1873) 12 Beng LR 406; Sarubai v. Bapu , ILR (1878) 2 Bom 660 .
No action lies for restraining defendant from erecting a building so that its shadow may not fall on plaintiff's
blind wall : Hakim Malani Mal v. V.E. Earle (Mrs.) , (1931) ILR 12 Lah 736.
60
Scott v. Pape , (1886) 31 Ch D 554; Pendarves v. Monro, (1892) 1 Ch 611. See Lai Hariganga v. Trikamlal
Kedareshwar , (1902) 4 Bom LR 34 : ILR 26 Bom 374; Framji v. Framji , (1904) 7 Bom LR 73 : ILR 30 Bom
319.
61
Andrews v. Waite, (1907) 2 Ch 500. No alteration of a building, which would not involve the loss of a right to
light when indefeasibly acquired, will, if made during the currency of the statutory period, prevent the
acquisition of the right : Ibid .
62
Amber v. Gordon, (1905) 1 KB 417.

63
PER BRAY J. in Ibid ., p. 424; See also the judgment of LORD HALSBURY and LORD DAVEY in Colls v.
Home and Colonial Stores, (1904) AC 179, 203. The case of Lanfranchi v. Mackenzie , (1867) LR 4 Eq
421—which was overruled in Warren v. Brown, infra , which in its turn is overruled in Coll's case—is
referred to in the judgment of BRAY, J., but not that of Lazarus v. Artistic Photographic Co., (1897) 2 Ch
214. The former laid down that to establish the right to the access of an extraordinary amount of light
necessary for a particular purpose or business to ancient window, open, uninterrupted, and known
enjoyment of such light in the manner in which it is at present enjoyed and claimed must be shown for a
period of twenty years. The latter ruled that a person who is in the present enjoyment of an access of light
to his premises for a special or extraordinary purpose, such as photography, may obtain an injunction
against interference with it, though he may not have been in the enjoyment of it for that special or
extraordinary purpose for full statutory period of twenty years.
64
Colls v. Home and Colonial Stores, Ltd ., (1904) AC 179, overruling Warren v. Brown, (1902) 1 KB 15,
followed in Framji v. Framji , (1904) 7 Bom LR 73, ILR 30 Bom 319; Chhotalal Mohanlal v. Lallubhai
Surchand , (1904) 6 Bom LR 633; ILR 29 Bom 157; Vir Bhan v. Ramjidas , (1909) PR No. 8 of 1907; Rattan
Chand v. Lal Chand , (1933) ILR 15 Lah 320; Bahri Rahla Ram v. Shiv Ram, (1934) 37 PLR 34; Wali Mohd.
v. Batuk , (1936) ALJR 712.
65
Colls v. Home and Colonial Stores Ltd ., (1904) AC 179, 210; Jolly v. Kine, (1907) AC 1, 7; Kine v. Jolly,
(1905) 1 Ch 480, 497.
66
Sheffield Masonic Hall Co. v. Sheffield Corporation, (1932) 2 Ch 17.

67
Explanations I and II to s. 33 of the Indian Easements Act, V of 1882. See Kadarbhai v. Rahimbhai , (1889)
ILR 13 Bom 674; Dhunjibhoy v. Lisboa , (1888) ILR 13 Bom 252; Ghanasham v. Moroba , (1894) ILR 18
Page 63 of 77
Bom 474; Sultan Nawaz Jung v. Rustomji , (1896) ILR 20 Bom 704 : (1899) 2 Bom LR 518, (1900) ILR 24
Bom 156 (PC); Chhotalal Mohanlal v. Lallubhai Surchand , (1904) ILR 29 Bom 157 : 6 Bom LR 633; Framji
Shapurji v. Framji Edulji , (1905) 7 Bom LR 73; 352, 825 : ILR 30 Bom 319, followed in Bapuji N. Kothare v.
Parmanandas , (1907) 9 Bom LR 335.
68
Mohammad Zaman Khan v. Umar Hayat Khan, (1936) 38 PLR 1003.

69
Bala v. Maharu , (1895) ILR 20 Bom 788. See Ratanji v. Edulji , (1871) 8 BHC (OCJ) 181.
70
John George Bagram v. Khettrananth Karjormah , (1869) 3 Beng LR (OCJ) 18; Modhoosoodum v.
Bissanauth , (1875) 15 Beng LR 361; Delhi and London Bank Ld. v. Hem Lall Dutt , (1887) ILR 14 Cal 839.
71
John Alexander Anderson v. Hardut Roy Chamaria , (1905) 9 CWN 543. See Paul v. Robson , (1914) 41 IA
180 : 16 Bom LR 803.
72
PER LORD DAVEY in Colls v. Home and Colonial Stores Ltd ., (1904) AC 179, 204.
73
PER LORD LINDLEY in Colls v. Home and Colonial Stores Ltd., sup ; p. 210; COTTON LJ in Ecclesiastical
Commissioners for England v. King , (1880) 14 Ch D 213, 228; Parker v. First Avenue Hotel Co ., (1883) 24
Ch D 282.
74
Colls v. Home & Col. Stores Ltd., supra , p. 211; James, v. C., in Dyers’ Co, v. King (1870) LR 9 Eq 438.
75
Delhi and London Bank Ld. v. Hem Lall Dutt , (1887) ILR 14 Cal 839; Dhunjibhoy v. Lisboa , (1888) 13 Bom
252; Bala v. Maharu , (1895) ILR 20 Bom 788; Framji v. Framji, (1904) 7 Bom LR 73, ILR 30 Bom 319.
Chhotalal Mohanlal v. Lallubhai Surchand , (1904) ILR 29 Bom 157 : 6 Bom LR 633.
76
Colls v. Home and Colonial Stores, Ltd . (1904) AC 179.

77
Provabutty Dabee v. Mahendra Lall Bose , (1881) ILR 7 Cal 453; Lallu v. Padamsi, (1889) PJ 310.
78
PER LORD MACNAGHTEN in Colls v. Home and Colonial Stores Ltd., (1904) AC 179, p. 193. As to
measure of damages, see Griffith v. Richards Clay & Sons Ltd ., (1912) 2 Ch 291. See Ankerson v.
Connelly, (1907) 1 Ch 678; Litchfield Speer v. Queen Anne's Gate Syndicate (No. 2) Ltd ., (1919) 1 Ch 407.
79
PER FARRAN, J., in Ghanasham Nilkant Nadkarni v. Moroba Ramchandra Pai , (1894) ILR 18 Bom 474,
488, 489. Injunction will be granted where the light required is for a special purpose : Yaro v. Sanaullah ,
(1897) ILR 19 All 259.
80
Page 64 of 77
Mohamed Auzam Ismail v. Jaganath Jamnadas , ILR (1925) 3 Ran 230 ; Poozundaung Bazaar Co. Ltd. v.
Ellerman's Arracan Rice and Trading Co. Ltd ., (1934) ILR 12 Ran 200.
81
Dent v. Auction Mart Co ., (1866) LR 2 Eq. 238; Aynsley v. Glover , (1875) LR 18 Eq 544; Smith v. Smith ,
(1875) LR 20 Eq 500; Krehl v. Burrell , (1878) 7 Ch D 551; Greenwood v. Hornsey , (1886) 33 Ch D 471;
Syud Mahomed v. Syed Jafur , (1865) 4 WR 23; Jamnadas v. Atmaram , (1877) ILR 2 Bom 133;
Nandikishore v. Bhagubhai , (1883) ILR 8 Bom 95; Kadarbhai v. Rahimbhai , (1889) ILR 13 Bom 674; Bala
v. Maharu , (1895) ILR 20 Bom 788; Chhotalal Mohanlal v. Lallubhai Surchand , (1904) ILR 29 Bom 157,
160 : 6 Bom LR 633; Kripa Ram v. Gurbaksh , (1893) PR No. 2 of 1892; Thakar Das v. S. Abdul Hamid ,
(1920) 2 LLJ 701.
82
Dhannu Mal v. Bhagwan Das , (1902) PLR No. 138 of 1902; Abdulla v. Beg Mahomed , (1903) 5 Bom LR
446; Muthu Krishna Ayyar v. Somalinga Muninagandrien , (1911) ILR 36 Mad 11.
83
Isenberg v. The East I.H.E. Co ., (1863) 3 De G J & S 263; Curriers Co. v. Corbett , (1865) 2 Dr & Sm 355;
Durrell v. Pritchard, (1865) LR 1 Ch 244; City of London Brewery Co. v. Tenant , (1873) LR 9 Ch 212; Lady
Stanley of Alderley v. Earl of Sherwsbury , (1875) LR 19 Eq 616; Benode Commmaree Dossee v.
Soundaminey Dossee , (1889) ILR 16 Cal 252; Beharee Sahoo v. Mt. Ajnas Kunwar , (1866) 6 WR 86;
Dhunjibhoy Cowasji Umrigar v. Lisboa , (1888) ILR 13 Bom 252; Ghanasham Nilkant Nadkarni v. Moroba ,
(1894) ILR 18 Bom 474; Sultan Nawaz v. Rustomji , (1896) ILR 20 Bom 704, on appeal, (1899) 2 Bom LR
518; ILR 24 Bom 156 : 26 IA 184; Bhimaji v. Yeshwant , (1929) 31 Bom LR 771.
84
Chuni Lall v. Ram Kishen Sahu , (1888) ILR 15 Cal 460, (FB); Maung Tha Zan v. U San Win , (1903) 2 LBR
134. See Kali Charan Naskar v. Ram Kumar Sardar , (1912) 17 CWN 73; Prannath Kundu v. Emperor ,
(1929) ILR 57 Cal 526; Bissessar Pathak v. Harbans Lal, (1936) 17 PLT 842.
85
Choudhury Bibhuti Narayan Singh v. Maharaja Guru Mahadeb Asram Prasad Sahi Bahadur , (1939) ILR 19
Pat 208.
1
Imambundee v. Sheo Dyal , (1870) 14 WR 199; Bhugwan v. Shaikh Khosal , (1867) 7 WR 271; Nubeen v.
Bhoobun , (1871) 15 WR 526; Oomui Shah v. Rumzan , (1868) 10 WR 363; Municipality of City of Poona v.
Vaman Rajaram Gholap , (1894) ILR 19 Bom 797; Charu Surnokar v. Dokouri Chunder Thakoor , (1882)
ILR 8 Cal 956; Hari v. Ramachandra , (1903) 5 Bom LR 650. See Vibudapriya Thirthaswamy v. Esoof
Sahib , (1910) ILR 35 Mad 28, as to dedication of way as a highway, see Muhammad Rustom Ali v.
Municipal Committee of Karnal , (1919) 22 Bom LR 563 : 47 IA 25.
2
Ram Gunga v. Gobind Chunder , (1871) 16 WR 284; Savalgiapa v. Basvanapa , (1873) 10 BHC 399; Joy
Doorga v. Juggernath Roy , (1871) 15 WR 295; Heera Lall v. Purmessur Kooer , (1871) 15 WR 401; Mohim
Chunder v. Chundee Churn , (1868) 10 WR 452; Gopee v. Bhoobun , (1875) 23 WR 401; Shan Bagdee v.
Fukeer Chand Bagdee , (1866) 6 WR 222. Whether non-user amounts to abandonment, see S.A.
Cristopher v. J.A. Cohen , (1924) ILR 2 Ran 534.
3
Satyanarayana v. Murarilal , ILR (1954) Hyd 46.

Page 65 of 77
Bakewell Management Ltd. v. Brandwood , (2004) 2 All ER 305 (HL).

5
Raj Manick Singh v. Rattun Bose , (1870) 15 WR 46; Lokenath v. Monmohun , (1873) 20 WR 293. General
right of way includes way for sweepers: Maneklal v. Maneklal , (1932) 34 Bom LR 1150 : ILR 57 Bom 186.
6
Jadulal Mullick v. Gopalchandra Mukerji , (1886) ILR 13 Cal 136; Esubai v. Damodar Ishwardas , (1891)
ILR 16 Bom 552; Soloji v. Pandoji, (1875) PJ 172 ; Ramachandra v. Anant , (1925) 28 Bom LR 601.
7
Ramsoonder Burral v. Woomakant Chukerbutty , (1864) 1 WR 217; Oomar Shah v. Ramzan Ali , (1868) 10
WR 363.
8
Jackson v. Stacey, (1816) Holt NP 455.

9
Joy Doorga v. Juggernath Roy , (1871) 15 WR 295; Mahomed v. Sefatoolah , (1874) 22 WR 340.
10
Ranchordass Amthabhai v. Maneklal Gordhandas , (1890) ILR 17 Bom 648, Carriageway may be used for
mechanically propelled vechicles: Lock v. Abrecester, Ld ., (1939) 1 Ch 861.
11
Koylash Chunder Ghose v. Sonatun Chung Barooe , (1881) ILR 7 Cal 132; Doorga Churn Dhur v. Kally
Coomar Sen , (1881) ILR 7 Cal 145.
12
Ballard v. Dyson , (1808) 1 Taunt. 279; Goluck Chunder v. Tarinee Churn , (1865) 4 WR 49; Hamid
Hossein v. C. Gervian , (1871) 15 WR 496; Tarneechurn v. Tarneechurn , (1866) 1 Ind Jur NS 6;
Ranchordass v. Maneklal, sup; Wutzler v. Sharpe , (1893) ILR 15 All 270; Municipality of City of Poona v.
Vaman Rajaram Gholap , (1894) ILR 19 Bom 797; Naran v. Lallubhai , (1900) 2 Bom LR 116.
13
Raghupati v. Bapuji, (1874) PJ 3.

14
Manchersha v. Virjivalavdas , (1926) 28 Bom LR 1158 : ILR 50 Bom 635.

15
Peacock v. Custins , (2001) 2 All ER 827 (CA).

16
Municipal Board, Mangalore v. Mahadeo Maharaj , AIR 1965 SC 1147 : (1965) 2 SCR 242 [LNIND 1964
SC 330].
17
Page 66 of 77
Attorney-General v. Antrobus, (1905) 2 Ch 188; Turner v. Spooner , (1861) 30 LJ Ch 801, 803; Jatindranath
Barat v. Corporation of Calcutta , (1930) ILR 58 Cal 1124 (1125). A cul de sac may be a public highway, but
its dedication will not be presumed from mere public user without evidence of expenditure for repairs,
lighting and other matters by the public authority: Ibid . See also Samarrendra Nath Saha Roy v. Harendra
Kumar Saha , (1934) 39 CWN 303.
18
Harvey v. Truro Rural Council, (1903) 2 Ch 638; Emperor v. Vadilal Devchand , (1931) 33 Bom LR 663.
19
Municipal Board, Mangalore v. Mahadeo Maharaj , AIR 1965 SC 1147 : (1965) 2 SCR 242 [LNIND 1964
SC 330].
20
Rose v. Groves , (1843) 5 M & G 613; Metropolitan Board of Works v. Mccarthy , (1874) LR 7 HL 243; Fritz
v. Hobson , (1880) 14 Ch D 542; Trees spontaneously growing on a public highway belong to the owner of
the soil, that is proprietors of adjacent land, and not to the local authority; Maharaja of Pittapuram v.
Chairman, Municipal Council Coconada , (1936) MWN 959.
21
Lyon v. Wardens of Fishmongers Co ., (1876) 46 LJ CH 69; Hanuman Prasad v. Raghunath Prasad ,

(1924) ILR 46 All 573.
22
Subbaya Nadan v. Aiyavoo Reddi , (1917) MWN 70.

23
Muhammad Jalil Khan v. Ram Nath Katua , (1930) ILR 53 All 484.
24
Manzur Hasan v. Muhammad Zaman , AIR 1925 PC 36; Shaikh Piru Bux v. Kalandi Pati , AIR 1970 SC
1885 : (1969) 2 SCR 563 [LNIND 1968 SC 323].
25
Himmatlal v. Police Commissioner, Ahmedabad , AIR 1973 SC 87 : (1973) 1 SCC 227 [LNIND 1972 SC
438].
26
Kidgil v. Moor, (1850) 9 CB 364.

27
Thorpe v. Brumfit , (1873) LR 8 Ch 650.

28
Baij Nath Singh v. Tetai Chowdhary , (1901) 6 CWN 197.

29
Harish v. Pran Nath, (1923) 39 CLJ 347. See Ramghulam Khatik v. Ramkhelavan Ram , (1936) ILR 16 Pat
190, which holds that a resident of a village can sue for removal of an obstruction to a village path or to well
without alleging any special damage.
Page 67 of 77
30
Municipal Board, Mangalore v. Mahadeoji Maharaj , AIR 1965 SC 1147 : (1965) 2 SCR 242 [LNIND 1964
SC 330]. A municipality has statutory power of removal of obstruction; See text and notes 15 to 18, p. 387.
31
Vanderpant v. Mayfair Hotel Co ., (1930) 1 Ch 138 : 142 LT 198; Winterbottom v. Lord Derby , (1867) LR 2
Ex. 316.
32
Harihar Das v. Chandra Kumar Guha , (1918) 23 CWN 91; Ram Chandra v. Joti Prasad , (1910) ILR 33 All
287.
33
Batiram Kolita v. Sibram Das , (1920) 25 CWN 95. See the judgment of MALIK, J., in Mandakinee Debee v.
Basantakumaree Debee , (1933) ILR 60 Cal 1003, 1007.
34
(1924) 52 IA 61; ILR 47 All 151; 27 Bom LR 170 (PC). See Baroda Prasad Mostafi v. Gora Chand Mostafi,
(1869) 3 Beng LR (ACJ) 295 ; 12 WR 160; Raj Lukhee Debia v. Chunder Kant , (1870) 14 WR 173;
Bhageeruth v. Gokool , (1872), 18 WR 58 Bhageeruth v. Chundee Churn , (1874) 22 WR 462; Parbati
Charan Mukhopadhya v. Kali Nath Muhypopaddhya , (1870) 6 Beng LR (Appx.) 73; Ramtarak v. Dinanath ,
(1871) 7 Beng LR 184 ; 24 WR 414n; Raj Koomar Singh v. Sahebzada Roy , (1877) ILR 3 Cal 20 (FB)
Abzul Miah v. Nasir Mahommed, (1895) ILR 22 Cal 551; Mohamed Abdul Hafiz v. Latif Hossein , (1897)
ILR 24 Cal 524; Raj Narain Mitter v. Ekadasi Bag , (1899) ILR 27 Cal 793; Mahomed Alum v. Dilbar Khan ,
(1900) 5 CWN 285. Adamson v. Arumugam , (1886) ILR 9 Mad 463; Siddeswara v. Krishna , (1890) ILR 14
Mad 177; Khaji Sayyad Hussain Sahib v. Narasimhappa, (1912) 23 MLJ 539 [LNIND 1912 MAD 467] ;
Ganapathy Muppen v. Subba Nayakkan , (1918) MWN 547. Karim Baksh v. Budha , (1876) ILR 1 All 249;
Fazal Haq v. Maha Chand , (1878) ILR 1 All 557; Nathu v. Jagram Das , (1881) 1 AWN 3; Khandhi v.
Kamta , (1881) 1 AWN 98; Tafazzul Husain v. Fazal Imam , (1881) 1 AWN 103; Rampal Rai v.
Raghunandan Prasad, (1888) 8 AWN 205; Tota v. Sardul Singh , (1888) 8 AWN 213. Nur Ali v. Ram Gopal
, (1877) PR No. 10 of 1878; Maluk Singh v. Bela Singh , (1882) PR No. 134 of 1882; Beli Ram v. Kaku ,
(1888) PR No. 39 of 1886; Chajju Mal v. Ganda Mal , (1894) PR No. 4 of 1895; Jawand Singh v. Sardar
Indar Singh , (1901) PR No. 64 of 1901. Muhammad Din Mian v. Mussammat Atirajo Kuer , (1931) ILR 10
Pat 568; This case follows Satku Valad Kadi Sausare v. Ibrahim Aga Valad Mirza Aga , (1877) ILR 2 Bom
457, which is overruled by the Privy Council in Manzur Hasan v. Muhammad Zaman , (1924) ILR 47 All
151: 27 Bom LR 170: 52 IA 61 (PC). The principle laid down in the above cases has no application when
the plaintiff sues in respect of an interference with his private rights of property; Sheonarayan v. Dindayal ,
(1930) 27 NLR 213.
35
Municipal Committee, Delhi v. Mohammad Ibrahim , (1934) ILR 16 Lah 517.

36
Munusami v. Kuppusami , ILR 1939 Mad 870. But see Bhuloganatham Pillai v. Rajagopala Pillai, (1941) 2
MLJ 105 [LNIND 1941 MAD 125] ; 53 MLW 728; (1941) MWN 637, which without deciding the applicability
of the rule of English law requiring proof of special damage held that where the defendant had built a wall
across a public highway near the plaintiff's house, the plaintiff was entitled to sue as the wall would interfere
with the enjoyment of his house and therefore there would be special damage.
37
Ramghulam Khatik v. Ramkhelawan Ram , ILR (1936) 16 Pat 190 .

Page 68 of 77
38
Pahlad Maharaj v. Gauri Dut Marwari, (1937) 18 PLT 737; Dasrath Mahto v. Narain Mahto, (1941) 22 PLT
111.
39
Chaudhury Bibhuti Narayan Singh v. Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur , (1939) ILR
19 Pat 208.
40
Surendra Kumar Basu v. Dist. Board of Nadia , (1942) ILR 1 Cal 533. View of MALIK, J. in Mandakinee
Debee v. Basanta Kumaree Debee , (1933) ILR 60 Cal 1003, Approved. View of JACK, J., in this case and
of NASIM ALI, J., in Beer Bikramkishore Manikya v. Chairman, Comilla Municipality , (1935) ILR 62 Cal
692, held Obiter .
41
Sita Ram v. Puttu Lal , (1937) ILR 13 Luck 444.

42
Velan Pokkiri Jaragan v. Subbayan Samban , (1981) ILR 42 Mad 271 (FB).
43
Manzurkhan v. Muhammad Zaman , (1924) 52 IA 61.

44
Shaikh Pilu Bux v. Kalandi Pati , AIR 1970 SC 1885 : (1969) 2 SCR 563 [LNIND 1968 SC 323].
45
Himatlal v. Police Commr., Ahmedabad , AIR 1973 SC 87 : (1973) 1 SCC 22. But there is no right to use a
public street for residence, business or as a prayer ground. See text and notes 15 to 19, p. 387, supra .
46
Manzur Hasan v. Muhammad Zaman , (1924) 52 IA 61; ILR 47 All 151 : 27 Bom LR 170, Overruling Satku
Valad Kadir Sausare v. Ibrarim Agera valad Mirza Aga , (1877) ILR 2 Bom 457; Kazi Sujaudin v.
Madhavadas , (1893) ILR 18 Bom 693; Virupaxappa v. Sheriff Sab , (1909) 11 Bom LR 372. See
Basalingappa Parappa v. Dharmappa Basappa , (1910) ILR 34 Bom 571: 12 Bom LR 586; Muhammad Jalil
Khan v. Ram Nath Katua , (1930) ILR 53 All 484; Janki Prasad v. Karamat Hussain , (1931) ALJR 624;
Muhammad Umar v. Jugal Kishore , ILR (1944) All 259; Haidar Husain v. Ali Muhammad , ILR (1945) All 3;
Jaffar Husain Khan Sahib v. Krishnan Servai, (1929) 58 MLJ 703 : 31 LW 845. A religious festival on a
public highway stands on the same footing as a religious procession: Murugappa Mudali v. Kuppuswami
Mudali, (1938) 2 MLJ 375 [LNIND 1938 MAD 65] : 48 MLW 267 : (1938) MWN 839.
47
Martin & Co. v. Syed Faiyaz Husain , (1943) 47 Bom LR 575 : 71 IA 25.
48
Palvannam Pillai v. Ganapathy Ayyar, (1952) 1 MLJ 552 [LNIND 1952 MAD 17] : 65 LW 338.
49
Muhammad Jalil Khan v. Ram Nath Katua , (1930) ILR 53 All 484; Mohamudkhan v. King-Emperor, (1948)
NLJ 340.
Page 69 of 77
50
Chandu Sajan Patil v. Nyahalchand , (1948) 52 Bom LR 214 (FB).

51
Director of Public Prosecution v. Jones (1999) 2 All ER 257 (H.L.) p. 265(d), Lord Lane L.C.
52
(2009) 5 SCC 212 [LNIND 2009 SC 882] : AIR 2009 SC 2266 : 2009 Crlj 2807.
53
Lyons Sons & Co. v. Gulliver, (1914) 1 Ch 631 : 110 LT 384 : 30 TLR 75.
54
Benjamin v. Storr , (1874) LR 9 CP 400. The diversion of traffic or custom from a man's door by an
obstruction of a highway, whereby his business is interrupted, and his profits diminished, seems to be too
remote a damage to give him a right of private action: Ricket v. Directors & c. of Metropolitan Ry ., (1867)
LR 2 HL 175; unless indeed the obstruction is such as materially to impede the immediate access to the
plaintiff's place of business more than any other man's and amounts to something like blocking up his
doorway : Fritz v. Hobson , (1880) 14 Ch D 542; Wilkes v. Hungerford Market Co ., (1835) 2 Bing NC 281.
55
PER BLACKBURN, J., in Jones v. Tapling, (1862) 12 CBNS 826 (842). See further R. v. Brown , (1996) 1
All ER 545, p. 556 : (1996) AC 543 (HL). (The common law does not know a general right of privacy and
Parliament has been reluctant to enact one. But there has been some legislation to deal with particular
aspects of the problem. The Data Protection Act, 1984 is one such statute. Enacted to give effect to
European convention, the Act prevents misuse of information regarding individuals recorded in a computer
readable form); R v. Khan , (1996) 3 All ER 289 (HL) (In this case opinion on the question of right of privacy
was not expressed. It was, however, held that tape recorded conversation recorded in an electronic device
installed in a private house without the knowledge of the owner occupier was admissible in a criminal trial).
56
Halsbury's Law of England (4th edition) Vol. 45, p. 631, para 1383.
57
Halsbury supra ; Motherwell v. Motherwell , (1976) 73 DLR (3d) 62 (Alta App. Div.). Followed in
Khorasandijian v. Bush , (1993) 3 All ER 669 : (1993) QB 727 : (1993) 3 WLR 476 (CA). Not approved by
the House of Lords to the extent that if the person harassed is neither the owner nor having right to
exclusive possession he cannot maintain an action in nuisance; Hunter v. Canary Wharf Ltd. , (1997) 2 All
ER 426 : (1997) AC 655 (HL). See further p. 624 title Private Nuisance.
58
Halsbury supra . But using a telescopic camera to photograph activities in plaintiff's bedroom is neither
nuisance nor trespass. Ibid .
59
Attorney General v. Guardian Newspapers Ltd. (No. 2) , (1988) 3 All ER 545 (HL), p. 639 : (1988) 3 WLR
776.
60
Mr. X v. Hospital Z, AIR 1999 SC 495 : (1998) 7 JT 626 : (1998) 8 SCC 296.
61
Page 70 of 77
Ibid.
62
Ibid.
63
R v. Department of Health exp. Source information Ltd., (2000) 1 All ER 786 : (2001) QB 424 : (2000) 2
WLR 940 (CA).
64
Ibid.
65
Prince Jefri Bolkiah v. KPMG (a firm) , (1999) 1 All ER 517 (HL).

66
Sasea Finance Ltd. v. KPMG , (2000) 1 All ER 676 : (2000) BCC 989 (CA).
67
Ibid.
68
Ibid . Fon injunction to prevent confidentiality see further, Lord Advocate v. The Scotsmen, (1990) 1 AC 812
(HL); Alan Paradoe Q.C., ‘Injunctions to protect official secrets in the United Kingdom, 3 Law and Justice
(1996) pp. 116-120.
69
Govind v. State of M.P., (1975) 2 SCC 148 [LNIND 1975 SC 124], p. 157 : AIR 1975 SC 1348.
70
R v. Kansal (No. 2) , (2002) 1 All ER 257 (HL); R v. Lambert , (2001) 3 All ER 577 (HL); Wilson v. First
County Trust Ltd. , (2003) 4 All ER 97 (HL).
71
Wainwright v. Home Office , (2003) 2 All ER 943 (CA) : (2003) 4 All ER 969 (HL).
72
A v. B , (a company) (2002) 2 All ER 545 (CA).

It is said that celebrities have a ‘right of publicity” (as different from ‘right for publicity’) to protect the
commercial interest of Elebrities’ identity on the reasoning that the celebrity has an interest in the
unauthorised exploitation of his identity : Subhashini Narsimhan and Thriyambak J. Kannan, ‘Right of
Publicity, Is it Encompassed in the Right of Privacy’ (2005) 5 SCC J-5.
73
(2004) 2 All ER 995 (HL).
74
Ibid , pp. 1002, 1003, 1018.

75
Ibid , pp. 1002, 1003, 1032.

Page 71 of 77
76
Ibid , p. 1007 (para 36).

77
Ibid , pp. 1019, 1032.

78
Ibid , p. 1020.
79
Supra note 73.

80
(2004) 4 All ER 683, p. 692 (para 14) (HL). See further for interlocutory injunction affecting right of
expression Cream Holdings Ltd. v. Banerjee , (2004) 4 All ER 617.
81
OBG Ltd. v. Allan, (2007) 4 All ER 545 (H.L.).

82
Kharaksingh v. State of U.P. , AIR 1963 SC 1295 : (1964) 1 SCR 332 [LNIND 1962 SC 436] ; Govind v.
State of MP, (1975) 2 SCC 148 [LNIND 1975 SC 124] : AIR 1975 SC 1348; Malak Singh v. State of P&H,
(1981) 1 SCC 420 [LNIND 1980 SC 476].
83
Ibid . See further State of Maharashtra v. Madhukar Narayan Mardikar , AIR 1991 SC 207, p. 211; AIR
1991 Journal 113 ; AIR 1992 Journal 104 .
84
Peoples Union for Civil Liberties v. The Union of India , (1996) 9 Scale 318 [LNIND 1996 SC 2173] : AIR
1997 SC 568 : (1997) 1 SCC 301(Safeguards laid down for exercise of power under Section 5(2) of the
Indian Telegraph Act).
85
(1994) 6 JT 514; AIR 1995 SC 264 p. 276 : (1994) 6 SCC 632.

86
Ibid JT p. 529; AIR p. 276.

87
Ibid .
88
Ibid.; Mr. X v. Hospital , Z AIR 1999 SC 495, p. 501 : (1999) 8 SCC 296.
89
In America the relevant tort is identified as ‘invasion of privacy by publication of private facts’. The tort is
also emerging in New Zealand. In Canada it is a statutory tort. See in this context Paton—Simpson ‘Private
Circles and Public Squares’ : Invasion of Privacy by the Publication of Private facts’ (1998) 61 Modern Law
Review 318.
Page 72 of 77
90
Privacy and Defamation, SC defines parameters, Indian Express Nov. 12, 1994.
91
R. Rajgopal v. State of Tamil Nadu , AIR 1995 SC 264 p. 276 : (1994) 6 JT 514 p. 529 : (1994) 6 SCC 632.
92
R. v. Central Independant Television Plc , (1994) 3 All ER 641 (CA).

93

94
Ibid , (paras 38, 39).

95
Ibid (para 52).

96
Ibid (paras 52 to 58).

97
Note 73, p. 441, supra.

98
The Indian Easements Act, s. 18, ill (b); Kesho Sahu v. Mussammat Muktakiman, (1930) ILR 10 Pat 280.
1
Nathubhai v. Chhaganlal , (1900) 2 Bom LR 454.

2
Manishankar Hargovan v. Trikam Narsi, (1867) 5 BHC (ACJ) 42. This decision is doubted in Mulia Bhana v.
Sundar Dana , (1913) 15 Bom LR 876 [LNIND 1913 BOM 77] : ILR 38 Bom 1, but is followed in Maneklal
Motilal v. Mohan Lal Narottamdas , (1919) ILR 44 Bom 496 : 22 Bom LR 226 and Bhajgovind Chunilal v.
Harilal Gordhandas , (1941) 44 Bom LR 401.
3
Mochi Pitamber Samji v. Doshi Hemchand Dahyabhai , ILR (1949) 2 Sau 60.
4
Kuvarji Premchand v. Bai Javer, (1869) 6 BHC (ACJ) 143 ; Jamiluddin v. Abdul Majeed , (1915) 13 ALJR
361; Fazal Haq v. Fazal Haq , (1927) 26 ALJR 49; Cheddi Ram v. Gokal Chand , (1928) ILR 50 All 706;
Sardar Husain v. Ahmad Husain , (1928) 5 OWN 538.
5
Keshav Harkha v. Ganpat Hirachand, (1871) 8 BHCR (ACJ) 87.

6
Shrinivas Udpirav v. Reid , (1872) 9 BHCR 266.

7
Page 73 of 77
Prasannakumar Datta v. Secretary of State for India in Council, (1933) ILR 61 Cal 245 (251).
8
Sreenath Dutt v. Nand Kishore Bose , (1866) 5 WR 208; Ramlal v. Mahes Baboo , (1868) 5 Beng LR 677n;
Mahomed Abdul Rahim v. Birju Sahoo , (1870) 5 Beng LR 676; Kalee Pershad v. Ram Pershad , (1872) 18
WR 14; Sri Narain Chowdhry v. Jodoo Nath Chowdhary , (1900) 5 CWN 147; Sarojini v. Krishna, (1922) 36
CLJ 406.
9
Sheikh Golam Ali v. Kazi Mahomed Zahur Alum , (1870) 6 Beng LR (Appx) 76.
10
Kesho Sahu v. Musammat Muktakiman , (1930) ILR 10 Pat 280.

11
Komathi v. Gurunada , (1866) 3 MHC 141; Sayyad Azuf v. Ameerubibi , (1894) ILR 18 Mad 163.
12
S. Ramalingam Pillai v. Dhanalakshmi Ammal, (1984) 1 MLJ 253 [LNIND 1983 MAD 251].
13
Sayyad Azuf v. Ameerubibi, Ibid .

14
Gokal Parsad v. Radho , (1888) ILR 10 All 358, (387) Lachman Prasad v. Jamna Prasad , (1887) ILR 10 All
162; Abdul Rahman v. Baghwan Das , (1907) ILR 29 All 582. Gokal Prasad v. Radho is doubted in
Bhagwan Das v. Zumurrad Husain , (1929) 51 All 986; Subhaga v. Janki , (1926) 29 OC 136.
15
Bhagwan Das v. Zumurrad Husain, supra.

16
Bholan Lal v. Altaf Hussain , ILR (1945) All 607.

17
Diwan Singh v. Inderjeet , AIR 1981 All 342 .

18
Ibid.
19
Abdul Rahman v. D. Emile: D. Emile v. Abdul Rahman , (1893) ILR 16 All 69.
20
Nanuck Chand v. Lalla , (1869) PR No. 21 of 1869: Gohree v. Jaintee , (1869) PR No. 91 of 1869; Shibdyal
v. Golab , (1876) PR No. 96 of 1876; Yasin v. Gokul Chand , (1882) PR No. 19 of 1882.
21
Hafiz Ulla v. Mohd. Hussain, (1936) 40 PLR 483.

22
Page 74 of 77
Nihal Chand v. Maula , (1903) PLR No. 108 of 1903.

23
Sangam Madho v. Ram Narain , (1929) ILR 5 Luck 372; Maharaj Kumar Mohmad Mohomed Hasan Khan v.
Hafiz Abdul Haq ., (1944) ILR 20 Luck 82; Jaroo v. Srinath Byas , (1948) OWN 388.
24
Abirchand Gulabchand Jain v. Mahik Ramnarain Tailor , 1978 MPLJ 204.

25
Gokal Prasad v. Radho , (1888) ILR 10 All 358 (387). As to the form of decree in such suits, see Sheonath
Rai v. Ali Husain , (1904) 1 ALJR 118.
26
Kundan v. Bidhi Chand , (1906) ILR 29 All 64.

27
Anguri (Smt.) v. Jiwan Dass , AIR 1988 SC 2024, p. 2026 : (1988) 4 SCC 189 [LNIND 1988 SC 425].
28
Ibid .
29
Campbell v. Paddington Corporation, (1911) 1 KB 869, 876 : 104 LT 394 : 27 TLR 232; Att-Gen. v. Doughty
, (1752) 2 Ves Sen 453. The plaintiffs, certain worshippers of St. Jacob's Church, brought a suit for
removing certain obstructions made by defendants on a part of the public road in front of their church, on
the ground of obstruction of the plaintiff's view of a curusady . It was held that the suit was not maintainable
: Kurusu Koshtha v. Sawarimuthu, (1910) 20 MLJ 367 [LNIND 1910 MAD 72]. See to the same effect,
Sarojini v. Krishna, (1922) 36 CLJ 406. A person has no cause of action where an obstruction to the view of
his building or place of business does not affect his right of access or does not otherwise cause damage to
his building or business : Gopalakrishna v. Narasimham , AIR 1958 AP 586 [LNIND 1957 AP 57].
30
Sutherland (Duke) v. Heathcote, (1892) 1 Ch 475.

31
Sundrabai v. Jayawant , (1898) ILR 23 Bom 397; State of Bihar v. Subodh Gopal Bose , AIR 1968 SC 281 :
(1968) 1 SCR 313 [LNIND 1967 SC 241]. But a profits a prendre in gross for example a right exercisable by
an indeterminate body of persons to take something from the land of others, but not for the beneficial
enjoyment of a dominant tenement is not an easement; State of Bihar v. Subodh Gopal Bose, supra .
32
Vasudeo v. Collector of Thana, (1879) PJ 274 ; Vaman v. Collector of Thana, (1869) 6 BHC (ACJ) 191 ;
Lloyd v. Jones, (1848) 17 LJCP 206 ; Bailey v. Stevens, (1862) 31 LJCP 226.
33
Commissioners of Sewers v. Glasse , (1874) LR 19 Eq 134. See Bholanath Nundi v. Midanapore

Zemindary Co. Ltd ., (1904) 31 IA 75 : ILR 31 Cal 503; Gorijala Pitchi Naidu v. Vellur Veeriah , (1909) ILR
34 Mad 58.
34
Page 75 of 77
Prabha Bati Saheba v. Secretary of State for India in Council , (1940) ILR 2 Cal 529.
35
Fitzgerald v. Firbank, (1897) 2 CH 96.

36
Nicholls v. Ely Beet Sugar Factory, (1931) 2 Ch 84 : 145 LT 113. The defendant cannot set up a Jus tertii in
such action : Ibid .
37
Hori Das Mal v. Mohomed Jaki , (1885) ILR 11 Cal 434, (FB); Satcowri Ghosh Mondal v. Secretary of State
for India , (1894) ILR 22 Cal, 252; Arjun Kaibarata v. Monoranjan De Bhumik , (1933) ILR 61 Cal 45; Viresa
v. Tatayya , (1885) 8 ILR Mad 467 ; Lakshman v. Ramji , (1920) 23 Bom LR 939. See Maung Tan Gin v.
Maung Hmon, (1898) PJLR 71. As to whether exclusive right of fishery in a tidal navigable river can be
acquired unders.26 26, there is a difference of opinion; See Viresa v. Tatayya, supra , and Abhoy Charan
Jalia v. Dwarka Nath Mahto , (1911) ILR 39 Cal 53. Such a right can be acquired by prescription:
Chandranath Das v. Pushkarchandra Das , (1935) ILR 62 Cal 800.
38
Braja Sunder Deb v. Mani Behara , AIR 1951 SC 247 : 1951 SCR 431 [LNIND 1951 SC 23].
39
Prabha Bati Saheba v. Secretary of State for India in Council , (1940) ILR 2 Cal 529.
40
Narayan v. Laxmibai , ILR 1951 Nag 199.

41
Raoji v. Tukaram , (1928) ILR 31 Bom LR 329.

42
Act 1 of 1877. (See s.6, 6, Specific Relief Act, 1963).
43
Bhundal Panda v. Pandol Pos Patil , (1887) ILR 12 Bom 221.

44
Natabar Parue v. Kabir Parue , (1890) ILR 18 Cal 80; Fadu Jhala v. Gour Mohun Jhala , (1892) ILR 19 Cal
544, (FB) Sitaram v. Petia , (1916) 14 NLR 35.
45
Hill & Co. v. Sheoraj Rai , (1922) ILR 1 Pat 674; The Secretary of State for India v. The District Board of
Tanjore , (1829) 31 MLW 508.
46
Newton v. Cubit, (1862) 12 CBNS 32; Kirtyanand Singh Bahadur v. Deonandan Prasad, (1933) 14 PLT
761.
47
North and South Shields Ferry Co. v. Barker, (1828) 2 Ex. 136.
48
Page 76 of 77
Peter v. Kendal, (1827) 6 B & C 703.

49
PER MELLISH, L.J. in Hopkins v. G.N.Ry ., (1877) 2 QBD 224, followed in Dibden v. Skirrow, (1907) 1 Ch
437, which does not approve of The Queen v. Cambrian Ry. Co ., (1871) LR 6 QB 422, 432, and which is
confirmed on appeal. (1907) WN 225.
50
Hopkins v. G.N.Ry, Co., supra .

51
Krishna v. Akilanda , (1889) ILR 13 Mad 54.

52
Prameshari Prashad Narain Singh v. Mahomed Syud , (1881) ILR 6 Cal 608.
53
Nityahari Roy v. Dunne , (1891) ILR 18 Cal 652; The Chairman of the Serajganj Local Board v. Budhiswar
Patni , (1930) ILR 57 Cal 1261. The Allahabad High Court has held that ownership of land on both banks at
a spot does not give right to owner to open a ferry there as against the Government grantee, Dhanpat
Pandey v. Pasput Pratap Singh , 1931 ILR 53 All 764.
54
Shama v. Gangadhar , (1922) 24 Bom LR 445 [LNIND 1922 BOM 36] ; ILR 46 Bom 952.
55
Makkan Singh v Secretary of State , (1877) PR No. 30 of 1877. See Kishore Lall v. Gokool Monee , (1871)
16 WR 281; Narain Singh v. Nurendro , (1874) 22 WR 296; Luchmessur Singh v. Leelanund Singh , (1878)
ILR 4 Cal 599; Ram Sakal v. Nageshar , (1935) 33 ALJR 444; Ali Bhai v. Maung Nyun , (1935) ILR 13 Ran
619.
56
Hammerton v. Dysart (Earl), (1916) AC 57.

57
Cowes Urban Council v. Southampton, etc., Royal Mail Steam Packet Co., (1905) 2 KB 287.
58
Newton v. Cubitt, (1859) 5 CBNS 627.

59
Mosley v. Walker , (1827) 7 B & C 40. A market without any definite limit may extend to surrounding
locality: Att-Gen. v. Horner , (1885) 11 App Cas 66.
60
Hem Chandra Roy Chaudhury v. Krishan Chandra Saha Sardar , (1920) ILR 47 Cal 1079; F.D.C. Summer
v. Jogendra Kumar , (1932) 34 Cr LJ 334.
61
Bridgland v. Shapter , (1839) 5 M & W 375.

Page 77 of 77
62
Stoke-on-Trent City Council v. W & J Wass Ltd., (1988) 3 All ER 394 : (1988) 1 WLR 1406 : 87 LGR 129
(CA).
63
Ibid.
End of Document
CHAPTER XVI TORTS TO PERSONALITY OR MOVABLE PROPERTY
1. TRESPASS TO GOODS
Trespass to goods is an unlawful disturbance of possession of the goods by seizure or removal or by a direct act
causing damage to the goods, 1 for example removing a tyre from a motor-car, 2 scratching the panel of a coach.
3 The plaintiff must at the time of the trespass have the present possession of the goods, either actual or
constructive, or a legal right to the immediate possession. 4 As against a wrong-doer any possession is sufficient
provided that it is complete and unequivocal. A trespass to goods is actionable per se without any proof of actual
damage. 5 In the earlier days it was not necessary for the plaintiff to prove intention or negligence in an action for
trespass to goods except that in highway accdents negligence was necessary to be proved. 6 But it seems now
that having regard to the recent cases 7 dealing with trespass to person which require that intention or negligence
must be proved by the plaintiff, the same view is likely to be taken in actions for trespass to goods. 8 But it is still
intentional taking actionable as trespass if the defendant honestly but erroneously believes that the goods removed
by him belong to him and he is entitled to take possession of them for the act of removal is intentional in relation to
the goods. 9
A person possessed of goods as his property has a good title as against every stranger, and one who takes them
from him, having no title in himself is a wrongdoer, and cannot defend himself, by showing that there was title in
some third person; for against a wrong-doer possession is title. 10 A plea in defence that the plaintiff got the chattel
under an illegal contract is of no avail if the plaintiff has not to rely on his own illegality. 11 If, however, the plaintiff
was not in actual possession of the goods at the time of the trespass, the proving of a jus tertii would afford a good
defence to the action, even though the defendant acted without the authority of the person entitled to the
possession. 12
A trespasser cannot by his trespass acquire the right of ownership in the property; such a possession cannot deter
the real owner from taking back the property from the trespasser. 13
A joint owner can maintain an action of trespass against his co-owner if the latter has done some act amounting to
ouster. 14
The wrongful attachment by itself amounts to trespass to goods and is actionable. The gist of the action is the
wrongful attachment and the plaintiff whose property is wrongfully attached before judgment is entitled to damages
even though he has failed to prove special damage. 15 Improper obtaining of injunction which restrains the plaintiff
to exercise his lawful rights over his goods may amount to trespass even without proof of malice or want of
reasonable or probable cause. 16
Shooting home-coming pigeons. —The plaintiff, the owner of certain homing and racing pigeons, released them for
exercise, and they alighted on the defendant's land and fed on his growing peas. To protect the peas the defendant
shot at the birds, killing four and wounding one. In an action by the plaintiff for damages for the destruction of and
injury to the pigeons, the defendant contended that there could be no property in homing pigeons, and, even
Page 2 of 16
assuming that there could be such a property, the destruction and wounding of the plaintiff's birds were justified. It
was held that so long as the birds retained an animus revertendi the plaintiff could claim a special property in them,
the appropriate form of action for him to take in respect of their destruction or wounding being trespass to goods,
that there was evidence to support the finding that the defendant had failed to prove that there were no practicable
means other than shooting or stopping the birds doing damage to his crops or that he had acted reasonably in
regarding the shooting as necessary to protect the crops, and, therefore, the plaintiff was entitled to succeed. 17
Taking possession of motor car. —The plaintiff bought a motor-car from a person who had no title to sell it and left it
in a garage, where he had monthly credit terms, for repairs. A representative of the defendants, who also had no
title to the car thought there was a purported sale of the car to the defendants, took it away and ultimately delivered
it to the true owner. The defendants were held liable in trespass to the plaintiff as the plaintiff had not parted with
possession of the car while it was in the garage. 18
A trespassing motorist, who has seen one or more notices giving sufficient warning that trespassing vehicles will be
clamped and who has understood their effect, consents to the risk of clamping so that clamping is not itself a
trespass to the vehicle. 19 But in a case where the motorist being in a distressed state of mind failed to see the
notice, the act of clamping was held to amount to trespass. 20
Defence.— The defendant may plead lawful justification when sued for trespass. Lawful title to the goods will be a
good defence provided the plaintiff has no right to possession against the owner. If the plaintiff's possession was
unauthorised or when his authority to possess had come to an end, the defendant's title to the goods will be a
complete defence. But if the plaintiff continues to have right to possess even against the owner, for example, when
the plaintiff is a bailee and the bailment still exists, the mere defence that the defendant is the owner will not be
enough and the defendant will have to show further that the bailment has been terminated. 21 The defendant if not
the owner may plead that he acted on behalf of the owner with his consent. The defendant may again plead
authority of law, such as seizure of goods under a legal process or under lawful distress for rent or damage feasant.
It may also be pleaded that the plaintiff had created an obstruction say by leaving his cart or horse on the road and
the defendant merely removed the obstruction in the exercise of his right of way. It may further be pleaded that the
defendant acted in private defence for example that the defendant had to shoot the plaintiff's dog which was
attacking the defendant's animal and the shooting was the only reasonable mode of prevention of harm to the
animals. 22 Inevitable accident is also a good defence. 23 The predecessors in title of the plaintiffs had laid an
electric cable under the land of a County Council without informing them which was damaged in an excavation work
done by the contractors of the Council who had no knowledge of the cable. It was held that the defendants were not
liable as being wholly without fault. 24
Remedy.— Formerly, for direct trespass, action of trespass for damages for the injury done could be brought. For
indirect injury resulting from the trespass, an action for trespass on the case was the remedy. Now the proper
remedy for either is action for damages.
Damages.— In an action for trespass to goods, the damages in general are measured by the value of the goods, or
the amount of injury done to them. Special damage resulting from the immediate loss or injury may also be allowed,
if not of too remote a nature. 25
Quarring stones on another's land.— Where the defendants without leave quarried on the land of the plaintiff and
removed a large quantity of stone therefrom, it was held that the plaintiff was entitled to recover by way of damages
the value of the stone after it was quarried, and that the defendants were not entitled to a deduction therefrom of the
costs they had incurred in quarrying the stone. 26
2. CONVERSION
2(A) General
Page 3 of 16
A conversion is an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent
with the right of another, whereby that other is deprived of the use and possession of it. 27 The expression ’wilful
interference’ in this definition implies the element of intention which refers to the intentional commission of the act
constituting conversion. If a person deals with a chattel in a manner which is necessarily inconsistent with the right
of the plaintiff, the dealing will be intentional and will amount to conversion even if he honestly believed that he was
entitled to do so and he did not know of the right held by the plaintiff. For example, an auctioneer is liable for
conversion even though he honestly believed that the goods belonged to the seller and not to the plaintiff.
Conversion may be committed in many different ways but the common link in all acts constituting conversion is that
they consist in dealings with goods which imply either unjustifiable denial of rights of another in them or assertion of
rights inconsistent with the rights of another. 28 Putting it more briefly, “a person who treats goods as if they were
his when they are not, is liable to be sued in conversion”. 29
The tort of conversion applies only to chattels and does not extend to cover the appropriation of choses in action.
30
An act of conversion may be committed—

1 When property is wrongfully taken.
2 When it is wrongfully parted with.
3 When it is wrongfully sold.
4 When it is wrongfully retained.
5 When it is wrongfully destroyed.
6 When there is a denial of the lawful owner's right.
2(B) Conversion by Taking
Anyone who without authority takes possession of another man's goods with the intention of asserting dominion
over them is guilty of conversion. The reason is that it is an act inconsistent with the general right of dominion which
the owner of the chattel, who is entitled to the use of it at all times and in all places, has in it. A mere taking
unaccompanied by an intention to exercise permanent or temporary dominion may be a trespass, but is no
conversion. 31
If there is a wrongful taking, it makes no difference that such an act was done under a mistaken but honest
supposition of being lawfully entitled, 32 or with the intention of benefiting the true owner. 33
Refusal to deliver property taken from agent.— In M'Combie v. Davies 34 the property of another person was taken
by assignment from an agent who had no authority to dispose of it, and the person taking it refused to deliver it up
to the principal after notice and demand by him. It was held that that amounted to conversion.
Principal ratifying purchase of chattel by agent. —In Hilbery v. Hatton 35 it was held that if a principal ratifies the
purchase by his agent of a chattel which the vendor had no right to sell, he is guilty of conversion although at the
time of the ratification he had no knowledge that the sale was unlawful.
Pledge taking property pledged .—Where a pledgee, having power to sell for default, takes over, as if upon a sale
to himself, the property pledged, without the authority of the pledgers, but crediting its value in account with him, he
is liable for conversion. 36
Taking fruit without right.— Where a person lopped the branches of fruit trees overhanging his land and
appropriated the fruit, it was held that, as the right to lop the branches did not carry with it the right to pick and
appropriate the fruit, he was guilty of conversion and liable to the owner for its value. 37
2(C) Conversion by Parting with Goods

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If a man, who entrusted with the goods of another, put them into the hands of a third person contrary to orders, it is
a conversion. The wrongful act is done when he purports to give to the third person along with the mere possession
some right over the property itself. Every person is guilty of a conversion, who without lawful justification deprives a
person of his goods by delivering them to someone else so as to change the possession. 38 The giver and the
receiver will be liable as joint tort-feasors. If a person takes another's horse to ride, and leaves him at an inn, that is
a conversion, for though the owner may have the horse back he has to pay for its keeping. 39 Similarly, the hirer of
a piano, who sends it to an auctioneer to be sold, is guilty of conversion; and so is the auctioneer who refuses to
deliver it up unless the expense incurred be first paid. 40 If a warehouseman misdelivers goods even by mistakes
he will be liable for conversion. 41
2(D) Conversion by Sale
Any person, who, however innocently, obtains possession of the goods of a person who has been fraudulently
deprived of them, and disposes of them, whether for his own benefit or that of any other person, is guilty of
conversion. 42 Wrongful sale of goods is conversion. 43 The auctioneer who gets possession of the articles sent
to be sold by him, for the purposes of sale, and sells them is liable to the true owner. 44 LORD DENNING recently
said: “When the goods are sold by the intervention of an auctioneer under the hammer or as a result of a
provisional bid, then if the seller has no title, the auctioneer is liable in conversion to the owner.” 45 But an
attempted disposition for example a mere bargain and sale without transfer of possession, i.e. delivery is not a
conversion. 46 Further if the auctioneer returns the goods to the person from when he received them without
selling them in good faith without notice of title of the plaintiff, he is not liable in conversion. 47
Green tea leaves converted into black tea.— Tea even when dried, shrunk and blackened remains the same tea as
plucked or on the shrubs as green leaves. Accordingly a person trespassing into a tea-garden cannot by plucking
and changing the green leaves into black tea acquire any right in respect thereof. In such a case the auctioneer
who sells the black tea on behalf of the trespasser and pays the price to him is liable to the real owner in damages
for conversion, the measure of such damages—where the trespasses were deliberate and criminal—being the
actual price at which manufactured tea was sold, without any deduction for the expenses incurred in connection
with its manufacture. 48
Sale of motor car.— The plaintiffs were motor dealers who sold a car priced at 625 after obtaining 350 to one C on
hire-purchase terms making it clear that C was not to sell the car before he paid the balance of the price. C,
however, sold the car for 410 through the defendants who were auctioneers. C became bankrupt. The car and the
purchaser were not traceable. The plaintiffs sued the defendants for conversion and recovered damages of 275, the
balance of the price that they had to recover from C. 49
The defendant allowed the plaintiff to leave her motor-car without payment in the yard of the hotel of which he was
licensee and tenant. The storage was intended to be for a short time, but the car remained in the yard for several
years. It became an obstacle owing to the conversion of the yard into a garage. After unsuccessful efforts to
communicate with the plaintiff, as the car was in poor condition, and had suffered from long exposure in the open
air, the defendant spent 85 in repairs to and renovation of the car to make it saleable. It was then sold at auction for
100. The plaintiff sued the defendant for damages for detinue and conversion of the car. It was held that the plaintiff
was entitled to damages on the basis of the value of the car on the day of judgment in the action; but that the
defendant was entitled to credit for what he had spent to render the car saleable, since the value of the car on the
day of judgment included 85, the property of the defandant in the shape of work done to and materials supplied for
the car. 50
Conversion of ring by agent selling it to third party who acquires it in good faith .—The plaintiff, the owner of a
diamond ring, entrusted it to T, who undertook to try to sell it on his behalf. The plaintiff was to receive 550 and T
any surplus of the proceeds. If the ring was not sold within seven days T was to return it to the plaintiff. After the
seven days had elapsed, T, representing himself as the owner of the ring, sold it for 175 to the defendants, who
bought it in good faith and re-sold it. T was subsequently convicted of the larceny of the ring as a bailee. In an
action by the plaintiff against the defendants for damages for wrongful conversion of the ring, it was held that, at the
time of the sale to the defendants, T was not an agent of the plaintiff to deal with the ring and was not in the position
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of a person who might be presumed as an agent having authority to sell it, and that, by the sale he converted the
ring to his own use; and, therefore, he did not pass any property in it to the defendants, who were thus liable to the
plaintiff. 51
2(E) Conversion by Keeping
Where a man has possession of another's chattel, and refuses to deliver it, this is an assertion of a right
inconsistent with his general dominion over it, and the use which at all times, and in all places, he is entitled to
make of it, and consequently amounts to an act of conversion. 52
Demand and refusal.— If the goods of a person are in the possession of another, he should send some one with
proper authority to demand and receive them; and if the person in possession refuses to deliver them up, this will
be evidence of conversion. 53 A demand and refusal do not in themselves constitute a conversion, but they are
evidence of a prior conversion. 54
An unqualified refusal is always conclusive evidence of a conversion, but a qualified, reasonable, and justifiable
refusal is not. 55 A qualified refusal by a railway servant who is doubtful as regards the consignor's title to the
goods to be delivered is not conversion. A refusal by a railway clerk to deliver a consignment at a place to which it
is not booked does not, therefore, amount to conversion. 56 But, if the defendant refuses to deliver up the goods
except upon a certain condition which he has no right to impose, that is tantamount to an absolute refusal. Thus the
refusal by a solicitor to give up deeds except on condition, which he had no right to impose, that his charges in
respect of business done for his own client should be paid would be evidence of conversion. 57
Right of finder.— As regards finders, the law is that the finder of a chattel who is not a trespasser acquires a right to
keep it against all but the true owner if the chattel had been abandoned or lost and if he took it into his care and
control, but this right is subject to the superior right of an occupier of a building to retain chattels attached to that
building and also to retain chattels on or in it if he manifests an intention to exercise exclusive control over the
building and the things which were on or in it. 58 The same rule applies to articles found in or attached to land
which was restated in Waverley BC v. Fletcher 59 as follows:
“(1) Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the
finder of the article, the owner or lawful possessor of the land has the better title. (2) Where an article is found
unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he
exercised such manifest control over the land as to indicate an intention to control the land and anything that might
be found on it.” 60 In Fletcher's case 61 , the defendant by using a metal detector discovered the presence of an
object below the surface and after digging some nine inches found a valuable medieval gold brooch. In a suit by the
plaintiff local authority which owned the public park it was held, applying the above principle that the local authority
had superior right to have the brooch as against the finder.
The plaintiff, a chimney sweeper, had found a very valuable jewel and had taken it to a jeweller to ascertain its
value. The jeweller, taking advantage of the boy's simplicity, told him it was worthless and offered him three pence
for it, which the lad declined and demanded the jewel back. The jeweller refused to do so; whereupon the boy
successfully sued him for it, and for the purpose of assessing damages the Court considered the jewel to be of the
highest value. 62
The defendant was the owner of a house which he had never himself occupied. While the house was requisitioned,
the plaintiff, a soldier, found in a bed-room loose in a crevice on the top of a window frame, a brooch, the owner of
which was unknown. There was no evidence that the defendant had any knowledge of the existence of the brooch
before it was found by the plaintiff; but the police to whom the plaintiff handed the brooch to ascertain its owner,
delivered it to the defendant who claimed it as being on premises of which he was the owner. It was held that the
plaintiff, as finder, was entitled to the possession of the brooch as against all others except its owner. 63
The plaintiff who was a passenger found a bracelet in the executive lounge at London Airport. The plaintiff handed
the bracelet to an employee of the Airlines with a direction that the bracelet be returned to him if it was not claimed
by its owner. The owner did not claim the bracelet still the Airlines did not return the bracelet to the plaintiff and
Page 6 of 16
instead sold it and kept the proceeds. The plaintiff sued for conversion and was awarded as damages the value of
the bracelet. The plaintiff being the finder was held entitled to the bracelet against everyone except the owner, for
the Airlines as occupiers of the premises, had shown neither an intention to exercise control over lost chattel in their
lounge nor an intention that permission to enter granted to members of the public was on terms that the commonly
understood maxim ’finders keepers’ would not apply. 64
Indian Cases .—Two notes were stolen from A, which B (not a bona fide holder for valuable consideration) tendered
to C in payment of certain articles. C, not knowing B, refused to deal with him, whereupon B brought D, who was
known to C, and the purchase was made by him. It was held that the part which B performed in the transaction
amounted to a “conversion of the notes to his own use” and that he was liable to A. 65 A refusal to deliver up an
idol, whereby the person demanding it was prevented from performing his turn of worship on a specified date was
held to give the party aggrieved a right to sue for damages. 66 Refusal or neglect by a railway company to deliver
goods after demand made was held to be conversion. 67
2(F) Conversion by destruction
Destruction of a chattel belonging to another is an act of conversion, for its effect is to deprive the owner of it
altogether. If the entire article is destroyed, as for instance, by burning it, that would be taking of the property from
the plaintiff and depriving him of it, although the defendant might not be considered as appropriating it to his own
use. Taking wine from a cask and filling it with water is a conversion of the whole liquor. 68 So is spinning cotton
into yarn or grinding corn into flour if done without the authority of the owner. 69
2(G) Conversion by Denial of Right
It was said that there may be a conversion of goods even though the defendant has never been in physical
possession of them, if his act amounts to an absolute denial and repudiation of the plaintiff's right. 70 The
correctness of this view was doubted and it has been overruled by s. 11(3) of the Torts (Interference with Goods)
Act, 1977 which provides that denial of title is not of itself conversion.
Interference with a chattel in a manner inconsistent with the right of the owner accompanied by a denial of title of
the owner amounts to conversion. 71
Unlawful user of the goods of another in such manner that the goods might be rendered liable to forfeiture by the
authorities would also amount to conversion. 72
Defendant's ignorance of the unauthorised character of his act cannot always be relied upon as a defence.
The payee of a crossed cheque especially endorsed it to the plaintiffs and posted it to them. A stranger, having
obtained possession of the cheque in transmission, obliterated the endorsement to the plaintiffs, and having
substituted a special endorsement to himself, presented it at the defendants’ bank, and requested them to collect it
for him. They did so, and handed the proceeds over to him in France. It was held that the defendants were liable to
the plaintiffs in an action for conversion for the amount of the cheque. 73
2(H) Distinction between Trespass and Conversion

(1) Trespass is essentially a wrong to the actual possessor and therefore cannot be committed by a person in
possession. Conversion, on the other hand, is a wrong to the person entitled to immediate possession. The
actual possessor is frequently, but not always, the person entitled to immediate possession, and
sometimes a person entitled to immediate possession is allowed to sue in trespass so that the conversion
may, but does not necessarily, include trespass.
(2) To damage or meddle with the chattel of another, but without intending to exercise an adverse possession
over it, is a trespass. A conversion is a breach made adversely in the continuity of the owner's dominion
over his goods though the goods may not be hurt.
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(3) The gist of the action, in trespass is the force and direct injury inflicted; in conversion, it is the deprivation of
the goods or their use.
If a person snatches my gold ring with a view to steal it, the act amounts to both trespass and conversion.
But if a person borrows my ring for his use but later on sells it he will be liable for conversion only.
2(I) Action for Conversion 2(I)(i) Who can sue?
The plaintiff, at the time of conversion, must either have a right of property in the thing, coupled with possession, or
the right of immediate possession thereof. 74 Any possession, however temporary, is sufficient against a wrong-
doer, e.g. that of a carrier. It has also been seen that a finder of goods will be in a position to sue in conversion
everyone except the real owner. 75 Actual possession or an immediate legal right to possession being necessary
for enabling a person to sue, a claim for conversion of goods is not maintainable by a person who had merely an
equitable interest in them against another who had acquired legal title to the goods as a bona fide purchaser for
value without notice of the prior equitable claim. 76 But a thief or a receiver of stolen property in possession has a
possessory title which is good against all the world except the true owner and so he can sue every other person for
conversion. 77
2(I)(ii) Defences
The justification or defence to an action for conversion are:

1 Lien , either general or particular. Demand and refusal are not evidence of conversion where the party has a
lien upon the chattel. 78
2 Right of stoppage in transit. —This defence arises out of contract relating to the sale of goods. 79
3 Denial of plaintiff's right of property , where the plaintiff sues relying on his right only, 80 or denial of
possession. 81
Where the plaintiff was in possession of the goods at the time of the conversion, the defendant cannot set
up a plea of jus tertii (i.e. that a third party has superior title). Against a wrong-doer possession is a good
title. But where the plaintiff was not in possession but had only the right to possess, the plea of jus tertii can
be set up by the defendant.
4 Distress.— Goods are taken under a distress or under an execution.
5 Sale in market overt. —According to English law sale of goods in market overt gives a good title to the
purchaser. Such a purchaser cannot be sued for conversion if he parts with the goods or refuses to give
them up on demand; but the seller can be sued if he has no title. 82 In India this doctrine does not apply,
but the case will be governed by ss. 27-30 of the Indian Sale of Goods Act.
2(I)(iii) Damages
The measure of damages is in general the value of the goods at the time of the conversion, where no special
damage has been sustained, and the goods have not been tendered and received back after action. 83 This would
be the market value of the goods at the time of conversion. 84 When the defendant unlawfully sold shares
belonging to the plaintiff and later replaced them by equal number of shares purchased at a lower price, the Privy
Council held that the measure of damages was the value of shares on the date of conversion, i.e. , sale price less
the value of replacement shares. 85 In an action against a shipowner for non-delivery of goods, the measure of
damages is the value of the goods at the date of the non-delivery. 86
If the defendant does not produce the article, the presumption will be that it is of the highest value of an article of
that kind. 87 If the goods have been returned, but have fallen in price, the difference in the price at the time of the
demand by the plaintiff, and at the time of the return, may be given as damages. 88
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Where damages have to be awarded to the owner of land in respect of the digging up of earth and making bricks
out of it, the plaintiff would be entitled not only to the value of the site prejudicially affected, the cost of manuring and
levelling it, but also to the net value of the bricks into which the earth has been converted. 89
3. DETENTION
Detention is the adverse withholding of the goods of another. The remedy in English law is an action in detinue. It
lies for the specific recovery of chattels, wrongfully detained from the person entitled to the possession of them, and
also for the damages occasioned by the wrongful detainer. The injury complained of is not the taking, not the
misuse and appropriation of the goods, but only the detention. The plaintiff must, as in conversion, have a special
and general property, and a right to immediate possession. 90 The plaintiff's object is to recover the specific goods;
they must therefore be capable of identification. Detinue, considered as a tort, does not substantially differ from
conversion by detention. But the conversion at common law only allowed damages. Detinue stands abolished in
England by the Torts (Interference with Goods) Act, 1977 which allows for conversion remedies that were available
under common law for detinue. There is no corresponding Act in India.Sections 7 and 8 of the Specific Relief Act,
1963 provide for the recovery of specific movable property at the suit of a person entitled to immediate possession
generally when the defendant is an agent or a trustee for the plaintiff; compensation in money would not afford
adequate relief; and it would be extremely difficult to ascertain the damage having regard to the special character of
the chattel. Thus, these provisions contain reliefs which can be obtained in an action for detinue.91
The action for detinue is based upon a wrongful detention of the plaintiff's chattel by the defendant, evidenced by a
refusal to deliver it upon demand and the redress claimed is not damages for the wrong but the return of the chattel
or its value. 92 So, if a bailee unlawfully or negligently loses or parts with possession he cannot get rid of his
contractual liability to restore the bailor's property on the termination of the bailment and if he fails to do so, he may
be sued in detinue. 93
Trespass de bonis asportatis, i.e. wrongful taking of goods is wrongful ab initio , whilst in detinue possession is
acquired rightfully but detention of the goods is wrongful. 94
Action.— The plaintiff must prove that he is entitled to possession of the goods, and that he demanded the goods
from the defendant, but the defendant refused to deliver them and detained them. The detention necessary is an
adverse or wrongful detention by the party sued, or by his servants or agents.
Justification.— A lien on the goods by the defendant is a good answer.
Damages.— In an action of detinue the value of the goods to be paid by the defendant to the plaintiff in the event of
the defendant failing to return the goods to the plaintiff, must be assessed as at the date of the verdict or judgment
in his favour and not at that of the defendant's refusal to return the goods, and the same principle applies whether
the defendant has converted the goods by selling them or has refused to return them for some other reason. 95 A
successful plaintiff in an action for detinue is entitled to have assessed separately (i) the value of the chattel at the
date of assessment and (ii) damages up to that date. 96 The proper measure of damages for wrongful detention of
property is the difference between the value of the property when seized and its value when restored. 97 In an
action for wrongful detention the plaintiff is entitled besides the re-delivery of the chattel or payment of its value in
the alternative also to damages for such wrongful detention. 98
It is the option of the plaintiff to sue the bailee either for wrongful conversion of goods or the wrongful detention
thereof having regard to all the circumstances of the case and the bailee cannot be heard to say anything to the
contrary; the general rule is that a bailor in the event of the non-delivery of the goods by the bailee on demand is
entitled, at his election, to sue the bailee either for wrongful conversion of the goods or the wrongful detention
thereof. As a rough test it has been suggested to plaintiff: If market is rising, sue in detinue, if it is falling, sue in
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conversion. This is the normal rule but the Courts have softened its rigour by importing the consideration that the
plaintiff should not be allowed to delay his action in order to get the advantage of a rising market. 1
While the measure of damages for both conversion and detinue was usually the value of the goods at the date
when judgment was given, nevertheless, if the bailor knew or ought to have known at an earlier date that the
conversion had taken place or was about to take place and took no immediate steps to recover the goods, the
measure of damages was the value of the goods at the date of his knowledge, or supposed knowledge and not at
the date when judgment was given. 2
1
Bullen; Grozier v. Cundey, (1827) 6 B & C 232; Kirk v. Gregory , (1876) 1 Ex.D 55.
2
G.W.K. Ltd. v. Dunlop Rubber Co. Ltd ., (1926) 42 TLR 376.

3
Fouldes v. Willoughby , (1841) 8 N & W 540, 549.

4
Johnson v. Diprose, (1893) 1 QB 512, 515; Smith v. Milles , (1786) 1 TR 475.

5
Leitch & Co. v. Leydon, (1931) AC 90, p. 106.

6
Gaylor and Pope v. B. Davies & Sons, (1924) 2 KB 75 : 131 LT 507.

7
Fowler v. Lanning, (1959) 1 QB 426 : (1959) 1 All ER 290; Letang v. Cooper, (1964) 2 All ER 929 : (1965) 1
QB 232.
8
SALMOND & HEUSTON, Tort 18th edition, p. 90; WINFIELD & JOLOWICZ, Tort, 12th edition, pp. 477,
478.
9
See for example Wilson v. Lombank Ltd ., (1963) 1 All ER 740 discussed in text and note 18, p. 453.
10
Jeffries v. G. W. Ry ., (1856) 5 E & B. 802, 805; Eastern Construction Co. v. National Trust Co ., (1914) AC
197.
11
Sajan Singh v. Sardar Ali , (1960) 1 All ER 269 (PC); Tinsley v. Milligan , (1993) 3 All ER 65 : (1994) 1 AC
340 : (1993) 3 WLR 126 (HL).
12
Gadsden v. Barrow , (1854) 9 Ex 514; Richards v. Jenkins, (1886) 17 QBD 544.

13
Khan Mohamed v. State , AIR 1967 Raj 37.

Page 10 of 16
14
Jacobs v. Seward , (1872) LR 5 HL 464.

15
Ardul Subhan Sab v. Ramiah , ILR 1952 Mys 176.

16
P.A. Jacob v. Nanda Timber Trading Co ., AIR 1990 Mad 140 [LNIND 1988 MAD 16].
17
Hamps v. Darby , (1948) 2 All ER 474 : (1948) 2 KB 311 : 64 TLR 440.

18
Wilson v. Lombank Limited , (1963) 1 All ER 740.

19
Arthur v. Anker , (1996) 3 All ER 783 : (1997) QB 564 : (1996) 2 WLR 602 (CA).
20
Vine v. Waltham Land on Borough Council, (2000) 4 All ER 169 (CA).

21
See Keenon Bros. Ltd. v. C.I.E., (1962) 97 ILTR 54.

22
See Cresswell v. Sirl , (1949) 2 All ER 730 : 63 TLR 620 : (1948) 1 KB 241.
23
National Coal Board v. Evans, (1951) 2 KB 861 : (1951) 2 TLR 415 : 95 SJ 399.
24
National Coal Board v. Evans, (1951) 2 KB 861 : (1951) 2 TLR 415 : 95 SJ 399.
25
Hughes v. Quentin, (1838) 8 CP 703; Gilbertson v. Richardson, (1848) 5 CB 502.

26
Dajiba Anandrav v. B.B. & C.L. RY. Co., (1869) 6 BHC (ACJ) 235, following Martin v. Porter , (1839) 5 M &
W 351.
27
SALMOND on Torts, 11th edn., as approved by the Supreme Court in Dhian Singh v. Union of India , AIR
1958 SC 274 : 1958 SCR 781 [LNIND 1957 SC 11]. See further: Chokalingam Chettiar v. National
Steamship Co ., (1957) KLT 1106; Union of India Representing Bengal Nagpur Railway v. Mohammad
Khan , ILR 1959 Cut 32; Rooplal v. Union of India , AIR 1972 J & K 22; Parmananda Mohanty v. Bira
Behera , AIR 1978 Ori 114 [LNIND 1977 ORI 47]; P.A. Jacob v. Nanda Timber Trading Co. , AIR 1990
Mad 140 [LNIND 1988 MAD 16].
28
WINFIELD & JOLOWICZ, Tort, 12th edition, p. 479.
Page 11 of 16
29
WEIR, Casebook on Tort, 5th edition, p. 404.
30
OBG Ltd. v. Allan, (2007) 4 All ER 545 (H.L.) (The defendants were receivers purportedly appointed under
a floating charge which was invalid. In that capacity the defendants took control of the claimant company's
assets and undertakings. The House of Lords by majority declined to extend the tort of conversion to cover
choses in action and the receivers who had acted honestly were not held liable.)
31
Fouldes v. Willoughby , (1841) 8 M & W 50, Anandi Lal v. Fateh Ali , (1953) RLW 556; M.V.G. Sastry v.
Radhalakshmi , ILR 1953 Mys 213.
32
Kleinwart Sons & Co. v. National D'Escompte de Paris, (1894) 2 QB 157; Union Credit Bank v. Mersey
Docks, etc ., (1899) 2 QB 205.
33
Hiort v. Bott , (1874) LR 9 Ex 86.

34
M'Combie v. Davies , (1805) 6 East 538 : 8 RR 534.

35
Hilbery v. Hatton , (1864) 2 H & C 822.

36
Neckram Dobay v. The Bank of Bengal , (1891) ILR 19 Cal 322. See Moyi v. Avuthraman , (1898) ILR 22
Mad 197.
37
Mills v. Brooker, (1919) 1 KB 555 : 121 LT 254 35 TLR 261.

38
Dhian Singh Sobha Singh v. Union of India , AIR 1958 SC 274.

39
Syeds v. Hay , (1791) 4 TR 260, 264.

40
Loeschman v. Machin , (1818) 2 Stark, 311 : 1958 SCR 781 [LNIND 1957 SC 11].
41
Devereux v. Barclay , (1819) 2 B & Ald. 702; Stephenson v. Hart , (1828) 4 Bing 476; Hiort v. Bott , (1874)
LR 9 Ex 86.
42
Hollins v. Fowler , (1875) LR 7 HL 757 (795) : 44 LJQB 169.

43
Page 12 of 16
Edwards v. Hooper , (1843) 11 M & W 363; Johnson v. Stear, (1863) 15 CBNS 330; Page v. Cowasjee ,
(1866) LR 1 PC 127; Biliter v. Young , (1856) 6 El & Bl 1.
44
Delaney v. Wallis , (1883) LR 14 Ir CL 31, 47.

45
R.H. Willis & Son v. British Car Auctions , (1978) 2 All ER 392 : (1979) 1 WLR 438 : 246 EG 134 (CA).
46
Lancashire Waggon Co. v. Fitzhugh , (1861) 6 H & N 502.

47
Marcq v. Christie Manson & Woods Ltd. , (2003) 3 All ER 561 (CA).
48
Carritt Moran & Co. v. Manmatha , (1941) ILR 1 Cal 285.

49
R.H. Willis & Son v. British Car Auctions , (1978) 2 All ER 392 : (1979) 1 WLR 438 : 246 EG 134 (CA).
50
Munro v. Willmott, (1949) 1 KB 295 : 64 TLR 627 : (1948) 2 All ER 983.

51
Jerome v. Bentley & Co ., (1952) 2 All ER 114.

52
Fouldes v. Willoughby , (1841) 8 M & W 540, 548.

53
Thorogood v. Robinson, (1845) 6 QB 769 : 9 Jur 274; Haryana Cotton Mills Co. Ltd. v. B.B. & C.I. Ry. Co .,
(1927) 28 PLR 665; Vishwanath Sadashiv v. Bombay Municipality , (1938) 40 Bom LR 685.
54
Wilton v. Girdlestone , (1822) 5 B & Ald. 847; Smith v. Young , (1808) 1 Camp 439. See Vaughan v. Watt ,
(1840) 6 M & W 495.
55
Alexander v. Southey , (1821) 5 B & Ald 247.

56
Fazalbhai v. Dominion of India , ILR 1951 Nag 545.

57
Davies v. Vernon, (1844) 6 QB 443. A person having in his possession the goods of another, whom he
knows to be the owner, has no right to retain them until he has a written receipt for them: Barnett v. Crystal
Palace Co. , (1861) 2 F & R 443.
58
Parker v. British Airways Board , (1982) 1 All ER 834 : (1982) QB 1004 : (1982) 2 WLR 503 (CA).
Page 13 of 16
59
(1995) 4 All ER 756 : (1996) QB 334 : (1995) 3 WLR 772 (CA).

60
Ibid., p. 764.
61
Ibid.
62
Armory v. Delamirie , (1721) 1 Str. 505. See Soonder Monee Chowdhrain v. Bhoobun Mohun Chowdhry ,
(1869) 11 WR 536, where in a suit to recover the value of the plundered property the highest value was
assumed.
63
Hannah v. Peel, (1945) KB 509 : 114 LJKB 533 : 61 TLR 502.

64
Parker v. British Airways Board , (1982) 1 All ER 834 : (1982) QB 1004 : (1982) 2 WLR 503 (CA).
65
Kissorymohun Roy v. Rajanarain Sen , (1862) 1 Hyde 263. See Khurshedji Rustomji Colah v. Pestomji
Cowasji Bucha , (1888) ILR 12 Bom 573.
66
Debendronath Mullick v. Odit Churn Mullick , (1878) ILR 3 Cal 390; Eshan Chunder Roy v. Monmohini
Dassi , (1878) ILR 4 Cal 683.
67
Haryana Cotton Mills Co. Ltd. v. B.B. & C.I. Ry. Co ., (1927) 28 PLR 665. See further M.S. Chokkalingam
Chettiar v. State of Karnataka , AIR 1991 Knt. 116 (Non-payment of value of logs purchased by Forest
Dept. held to amount to Detention and Conversion. Does not appear to lay down a correct proposition.)
68
Richardson v. Atkinson , (1723) 1 Str 576. See Phillpott v. Kelley , (1835) 3 A & E 106.
69
Com. Dig. Action Trover E .

70
Oakley v. Lyster, (1931) 1 KB 148 : 100 LJKB 177 : 144 LTR 363.
71
Akola Electric Supply Co. Ltd. v. Gulbai , ILR 1950 Nag 453.
72
Moorgate Mercantile Company Limited v. Finch , (1962) 2 All ER 467 : (1962) 1 QB 70 : 106 SJ 284.
73
Kleinwort, Sons & Co. v. Comptoir National D'Escompte de Paris, (1894) 2 QB 157.
Page 14 of 16
74
Gordon v. Harper , (1796) 7 TR 9.

75
See text and notes 58 to 64, pp. 458, 459 .

76
Mcc Proceeds Inc. v. Lehman Bros. International (Europe), (1998) 4 All ER 675 (CA).
77
Costello v. Chief Constable , (2001) 3 All ER 150 : (2001) 1 WLR 1437 (CA).
78
Stancliffe v. Hardwick , (1835) 2 C M & R 1; Scarfe v. Morgan , (1828) 4 M & W 270.

79
See the Indian Sale of Goods Act, 1930, s. 50.
80
Butler v. Hobson , (1838) 4 Bing NC 290.

81
Jones v. Brown , (1856) 25 LJ Ex 345.

82
Peer v. Humphrey , (1835) 2 A & E 495.

83
Reid v. Fairbanks, (1853) 13 CB 692; Taylor v. Mostyn , (1886) 33 Ch D 226; Morgan v. Powell, (1842) 3
QB 278; W.B. Crizzle v. Olly Kistama , (1901) 8 Burma LR 43; Bansidhar v. Sant Lal , (1887) ILR 10 All
133; Muhammad Moshin Khan v. Turab Ali Khan , (1909) 6 ALJR 441. Where there is wrongful conversion
of goods by an agent, the measure of damages is not always the highest market value between the date of
conversion and that of the trial, but it will depend upon circumstances : Sarareddi v. Brahmayya , (1928) 29
MLW 419 : 55 MLJ 586; Akola Electric Co. Ltd. v. Gulbai , ILR (1950) Nag 453.
84
Henderson & Co. v. Williams, (1895) 1 QB 521, 530; Motilal v. Lakhmichand, (1943) NLJ 71 ; Hazarimal v.
Champalal , ILR 1943 Nag 272. The defendants had wrongfully converted to their own use a box of indigo
belonging to the plaintiff. The plaintiff sued for the recovery of the box and damages. It was held that the
measure of damages was the value of the indigo at the time of the wrongful conversion, minus its value at
the date it was to be returned to the plaintiff, plus interest at six per cent for the intervening period : Azmat
Ali v . Maula Baksh , (1885) 5 AWN 200. In an action for wrongful conversion of certain timber, the plaintiff
claimed to recover as damages the market value of the timber at the town of Rangoon to which it was being
conveyed at the time of the conversion. It was held that the cost of carriage to Rangoon from the place
where the wrongful conversion occurred must be deducted : Burmah Trading Corporation v. Mirza
Mohomed Ally , (1878) 5 IA 130 : ILR 4 Cal 116. In an action for damages for the detention of ornaments
pledged with the defendant which the defendant wrongfully converted to his own use, the measure of
damages was the value of ornaments, less the sum for which they had been pledged: Hasam Kasam v.
Goma Jadhavji , (1868) 5 BHC (OCJ) 140.
85
Page 15 of 16
BB MB Finance (Hongkong) Ltd. v. Eda Holdings Ltd ., (1991) 2 All ER 129 : (1990) 1 WLR 409 (PC).
86
The Arpad , (1934) p. 189.

87
Armory v. Delamirie , (1721) 1 Str 505.

88
Williams v. Archer, (1847) 5 CB 318. As to measure of damages where plaintiff has special property, see
Brierly v. Krendall, (1852) 17 QB 937 : 85 RR 736; The Winkfield, (1902) p. 42; Glenwood Lumber Co. v.
Phillips, (1904) AC 405.
89
Anantharaman v. Subba Reddi, (1951) 2 MLJ 419 : 64 MLW 858. See Ayodhyaramyya v. Venkata
Krishnam Naidu , (1952) MWN 174.
90
Bullen, Grozier v. Cundey, (1827) 6 B&C 232.

91
Banshi v. Goverdhan , AIR 1976 MP 125 [LNIND 1976 MP 13].

92
Dhian Singh v. Union of India , AIR 1958 SC 274 : 1958 SCR 781 [LNIND 1957 SC 11].
93
Ibid.
94
State v. Gangadhar , AIR 1967 Raj 199.

95
Rosenthal v. Alderton and Sons Ltd ., (1946) 1 KB 374. This case has been relied on by the Supreme Court
in Dhian Singh v. Union of India , AIR 1958 SC 274 : 1958 SCR 781 [LNIND 1957 SC 11].
96
General and Finance Facilities Limited v. Cooks Cars Limited , (1963) 2 All ER 314 : (1963) 1 WLR 644 :
107 SJ 294.
97
Nundeeram Singh v. Inderchand Dogare , (1864) Cor 89; Shaikh Punju v. Shaikh Oodoy , (1972) 18 WR
337. See McIvor v. Stainbank , (1869) 5 MHC 70.
98
Dhian Singh v. Union of India , AIR 1958 SC 274 : (1958) SCJ 363 [LNIND 1957 SC 11] : (1958) SCR 781
[LNIND 1957 SC 11].
1
Page 16 of 16
Dhian Singh Sobha Singh v. Union of India , AIR 1958 SC 274 : (1958) 1 SCR 781 [LNIND 1957 SC 11] :
(1958) 1 MLJ 93 [LNIND 1957 SC 11].
2
Sachs v. Miklos , (1948) 1 All ER 67 : 1948 KB 23 : 64 TLR 181.
End of Document
CHAPTER XVII TORTS AFFECTING IMMOVABLE AS WELL AS MOVABLE
PROPERTY
CHAPTER XVII TORTS AFFECTING IMMOVABLE AS WELL AS MOVABLE PROPERTY
1. SLANDER OF TITLE
SLANDER OF TITLE consists of a false, malicious statement in writing, printing, or by word of mouth, injurious to
any person's title to property, whether movable or immovable, and causing special damage to such person.
Suppose one having an infirm title to property which he is going to sell, or to make the subject of a settlement, and
another, moved by spite and malice, discloses what he believes to be a defect, though the information afterwards
turns out to be untrue, and injury results to the former, an action would lie, the statement being false and malicious,
and injurious to the plaintiff. 1 If lands or chattels are about to be sold by auction and a man declares in the auction
room, or elsewhere, that the vendor's title is defective, that the lands are mortgaged, or that the chattels are stolen
property, and so deters people from buying, or causes the property to be sold for a less price than it would
otherwise have realized, this is a slander upon the title of the owner, and gives him a prima facie claim for
compensation in damages. 2 A person who goes to intending tenants and dissuades them from taking a building
on rent by making false statements as to its habitability and safety is liable in tort if he is actuated by malice, the tort
being analogous to slander of title falling within the broad description of injurious falsehoods. 3
The plaintiff, in order to sustain the action must essentially prove 4 —

(1) That the statement is false. 5 If the statement be true, if there really be the infirmity in the title that is
suggested, no action lies. It is for the plaintiff to prove it to be false, not for the defendant to prove it to be
true. 6
(2) That the statement was made male fide and is malicious, that is, with intent to injure the plaintiff, 7 or with
some indirect or dishonest motive. 8 If the statement is made in the bona fide assertion of the defendant's
own right, real or supposed, to the property, no action lies, e.g. a bona fide notice by a person to prevent a
sale on the ground that he has a claim on the estate to be sold. 9
(3) That the words go to defeat or injure his title to property. The property may be either real or personal; and
the plaintiff's interest therein may be either in possession or reversion.
By virtue of the Defamation Act, 1952, in England in an action for slander of title, it shall not be necessary to allege
or prove special damage,—
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and
are published in writing or other permanent form; or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office,
profession, calling, trade or business held or carried on by him at the time of the publication. 10
Under the Indian law it is necessary to prove special damage. 11

Page 2 of 7
The medium through which the slander is conveyed, that is, whether it be through words, or writing, or print, is
immaterial; though where the slander of title is conveyed in a letter or other publication the damage in consequence
is likely to be more serious than where the slander of title is by words only. 12
An action for slander of title differs from an action of defamation in several respects:—
(1) The words are not defamatory; they do not disparage the plaintiff's moral character, or his solvency, skill,
business capacity, etc., they are merely an attack on something, or on his title to something.
(2) The words are equally actionable whether written or spoken.
(3) There is no presumption that the words are untrue; the onus lies on the plaintiff to prove them untrue.
(4) Malice is not presumed; the plaintiff must give some prima facie evidence that the defendant acted
maliciously, or, at all events, without lawful occasion or reasonable cause.
(5) A right of action for defamatory words dies with the person defamed; but this action survives to an executor
to the extent that any damage can be shown to the estate of the deceased. 13
Claim to silver shares .—The plaintiff was possessed of certain shares in a silver mine, touching which shares
certain claimants had filed a bill in Chancery, to which the plaintiff had demurred. It was held that, without alleging
special damage, the plaintiff could not sue the defendant for falsely publishing that the demurrer had been
overruled; that the prayer of the petition (for the appointment of a receiver) had been granted, and that persons duly
authorized had arrived at the mine. 14
Using name of another's hotel on coaches .—Where defendants, coach-owners, used the name of a hotel on their
coaches and the driver's caps, so as to suggest that they were authorised and employed by the hotel-keeper to ply
between the hotel and the railway station, but the plaintiffs were the coach-owners authorised and employed by the
hotel, it was held that the defendants must not falsely hold themselves out as having the patronage of the hotel
though they could freely compete with the plaintiffs for the carriage of passengers and goods to the hotel, and could
advertise their intention of so doing in any honest way. 15
Remedy. —The remedies of injunction and declaratory judgment are more appropriate than an action for damages.
16
Damage .—Special damage sustained must be proved, and that will, in part, be the measure of damages. Special
damage may consist in the property having on a sale realised a less price than it otherwise would; or in the owner
being put to other unnecessary expenses in consequence.
2. SLANDER OF GOODS
Slander of goods consists of a false statement, disparaging a man's goods, published maliciously and causing him
special damage. This is also known as ’trade libel’.
To maintain an action for slander of goods it is necessary to prove—

(1) That the defendant disparaged the plaintiff's goods;
(2) That such disparagement was false;
(3) That it was made maliciously. 17
By virtue of the Defamation Act, 1952, 18 in England in an action for slander of goods, it shall not be necessary to
allege or prove special damage as in the two cases specified in slander of title referred to above.
Page 3 of 7
A statement by a trader that his own goods are superior to those of another trader, even if untrue and the cause of
loss to the other trader, gives no cause of action. An allegation that such a statement was made maliciously could
not convert a statement prima facie lawful into one prima facie unlawful. 19
The plaintiff had for many years carried on the business of an engineer and boiler-maker under the name of
Ratcliffe and Sons. The defendant published in his newspaper falsely and maliciously that the plaintiff had ceased
to carry on his business and that the firm of Ratcliffe & Sons did not then exist. It was held that the defendant was
liable and that evidence of general loss of business was sufficient to support the action. 20
We, the proprietor of Vane's food for infants, etc., bought from Mellin and sold to his customers Mellin's Food. W
affixed to the wrappers on Mellin's food a label stating that Vane's food was far more nutritious and healthful than
any other. It was not proved that the statement was untrue or that it had caused any damage to the plaintiff. It was
held that W's conduct did not amount to a trade libel, but was merely a puff by a rival trader. 21 The plaintiff and
the defendant were the owners of newspapers circulating in the same locality, and the defendant published a
statement which was untrue, that “the circulation of” his newspaper “is 20 to 1 of any other weekly paper” in the
district: and “where others count by the dozen, we count by the hundred.” It was held that those statements were
not a mere puff but amounted to an untrue disparagement of the plaintiff's newspaper, and were actionable on proof
of actual damage. 22
3. MAINTENANCE AND CHAMPERTY
Maintenance is the officious assistance by money or otherwise proffered by a third person to either party to a suit, in
which he himself has no legal interest to enable them to prosecute or defend it. 23 “The essence of the offence is
intermeddling with litigation in which the intermeddler has no concern.” 24 It is against public policy that litigation
should be promoted and supported by those who have no concern in it.
If a person agrees to maintain a suit in which he has no interest, the proceeding is known as maintenance; if he
bargains for a share of the result to be ultimately decreed in a suit in consideration of assisting in its maintenance, it
is styled champerty. 25 Every champerty (campipar titio ) is maintenance, but every maintenance is not champerty,
for champerty is but a species of maintenance, which is the genus.
The law of maintenance is confined to cases where a man improperly and for the purpose of stirring up litigation
and strife encourages others to bring actions or to make defence which they have no right to make. No
encouragement should be given to litigation by the introduction of parties to enforce those rights which others are
not disposed to enforce. 26
An action for damages for maintenance will not lie in the absence of proof of special damage. 27 The success of
maintained litigation, whether an action or a defence, is not a bar to the right of action for maintenance. 28
In two cases the maintenance of a suit is lawful—

(1) Where the person maintaining has an interest in the subject-matter of the action, 29 e.g. master for a
servant or a servant for a master, and heir, a brother, a son-in-law, a brother-in-law, a landlord defending
his tenant in a suit for title. But in all these cases the interest spoken of is an actual valuable interest in the
result of the suit itself, either present, or contingent, or future, or the interest which consanguinity or affinity
to the suitor gives to the man who aids him, or the interest arising from the connection of the parties. 30
(2) Where the maintainer assisted the third person from charitable motives, believing that he was a poor man
oppressed by a rich man; 31 or from religious sympathy. 32
The doctrine as to maintenance of civil suits is not applicable to criminal proceedings. Every member of the public
may set the criminal law in motion, and he is not liable unless the prosecution is malicious. 33
Page 4 of 7
The plaintiff having sat and voted as a member of Parliament, without having made and subscribed the oath
appointed by a statute, the defendant, also a member of Parliament, procured C to sue the plaintiff for the penalty
imposed by that statute for contravention thereof. C was a person of insufficient means to pay the costs in the event
of the action being unsuccessful. After the commencement of the action the defendant gave to C a Bond of
indemnity against all costs and expenses he might incur in consequence of the action. It was held that the
defendant and C had no common interest in the result of the action for the penalty, that the conduct of the
defendant in respect of such action amounted to maintenance, and that the action for maintenance was
maintainable. 34
By Criminal Law Act, 1967, maintenance and champerty have been abolished as crimes and as torts in England.
But a champertous agreement is still void for illegality so far as the law of contracts is concerned.
Indian law.— The English law of maintenance and champerty is not in force as specific law in India either in
mofussil or in the Presidency-towns. 35 A fair agreement to supply funds to carry on a suit, in consideration of the
lender having a share of the property sued for, if recovered, is not to be regarded as necessarily opposed to public
policy, or merely, on this ground, void. But in agreements of this kind the questions are:—
(a) Whether the agreement is extortionate and unconscionable, so as to be inequitable against the borrower; or
(b) Whether the agreement has been made, not with the bona fide object of assisting a claim, believed to be
just, and of obtaining reasonable compensation therefor, but for improper objects, as for the purpose of
gambling in litigation, or injuring others, so as to be, for these reasons, contrary to public policy.
In either of these cases, effect is not to be given to the agreement. 36
To make such agreements void, “there must be something against good policy, and justice, something tending to
promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad
motive in the same sense is necessary.” 37 The Courts will consider whether the transaction is merely the
acquisition of an interest in the subject of litigation bona fide entered into, or whether it is an unfair or illegitimate
transaction got up for the purpose merely of spoils of litigation or disturbing the peace of families and carried on
from a corrupt or other improper motive. 38
1
Pater v. Baker, (1847) 3 CB 831, 868.

2
Garrard v. Dickenson , (1590) 1 Cro. Eliz. 196.

3
Hargovind v. Kikabhai , ILR 1938 Nag 348.

4
See Nemi Chand v. Wallace , (1907) ILR 34 Cal 495, where the same essentials are laid down.
5
Brook v. Rawl , (1849) 4 Ex 521.

6
Burnett v. Tak, (1882) 45 LT 743.

7
Pater v. Baker, (1847) 3 CB 831, 868; Halsey v. Brotherhood , (1881) 19 Ch D 386; The Royal Baking
Powder Co. v. Wright Crossley & Co ., (1901) 18 RPC 95; British Railway Traffic and Electric Co. v. C.R.C.
Co. and the London County Council, (1922) 2 KB 260 : 126 LT 602 : 38 TLR 190.
Page 5 of 7
Greers, Limited v. Pearman & Corder Limited, (1922) 39 RPC 406, 417.
9
Hargrave v. Le Breton , (1769) 4 Bur 242 ; Blackham v. Pugh, (1846) 2 CB 611; Pitt v. Donovan , (1813) 1
Maul & Sel 639.
10
15 & 16 Geo VI & I Eliz II, c. 66, s. 3.
11
Mohammad Din v. Sant Ram, (1938) 40 PLR 158; Sain Dass v. Ujagar Singh , ILR (1940) 21 Lah 191 .
12
Malachy v. Soper , (1836) 3 Bing NC 371 : 3 SC 723 : 2 Hodg. 217.

13
Hatchard v. Mege, (1887) 18 QBD 771.

14
Malachy v. Soper , (1836) 3 Bing NC 371, 386 : 3 Bing NC 375.

15
Marsh v. Billings , Big LC 59, 7 Cush 322.

16
R.J. Reuter Co. Ltd. v. Mulhens, (1954) Ch 50 : (1953) 2 All ER 1160.

17
Western Counties Manure Co. v. Lawes Chemical Manure Co ., (1874) LR 9 Ex 218; White v. Mellin,
(1895) AC 154 : 72 LT 334 : 43 WR 353 : 11 TLR 236; Wren v. Weild , (1869) LR 4 QB 730. The precise
words complained of must be set out in the statement of claim: Imperial Tobacco Co. v. Bonnan, (1927) 46
CLJ 455.
18
15 & 16 Geo. VI & I Eliz. II, c. 66, s. 3.
19
Hubbuck & Sons v. Wilkinson, Heywood & Clark, (1899) 1 QB 86.

20
Ratcliffe v. Evans, (1892) 2 QB 524 : 66 LT 744 : 40 WR 578.

21
White v. Mellin, (1895) AC 154 : 72 LT 334 : 11 TLR 36. Publication of placards containing false statements
injurious to trade can be restrained by injunction: Collard v. Marshall, (1892) 1 Ch 571.
22
Lyne v. Nicholls, (1906) 23 TLR 86.

23
Page 6 of 7
Blackstone, iv, c. 10, s. 12. See Bradlaugh v. Newdegate, (1883) 11 QBD 1, where several definitions are
quoted with approval.
24
PER LORD FINALY, LC., in Neville v. London ’Express’ Newspaper Ltd ., (1919) AC 368, 382.
25
Sprye v. Porter , (1856) 26 LJ QB 64.

26
PER LORD ABINGER, C.B. in Prosser v. Edmonds , (1835) 1 Y & C 481.

27
Neville v. London ’Express’ Newspaper, Ltd., (1919) AC 368.

28
Neville v. London ’Express’ Newspaper Ltd., supra.

29
Guy v. Churchill , (1889) 40 Ch D 481 : 58 LT Ch 345 : 60 LT 473.

30
PER LORD COLERIDGE C.J. in Bradlaugh v. Newdegate, (1883) 11 QBD 1; Alabaster v. Harness, (1895)
1 QB 339.
31
Harris v. Brisco, (1886) 17 QBD 504.

32
Holden v. Thompson, (1907) 2 KB 489.

33
Grant v. Thompson, (1895) 72 LT 264 : 18 Cox 100.

34
Bradlaugh v. Newdegate, (1883) 11 QBD 1.

35
Ram Coomar Coondoo v. Chunder Canto Mookerjee , (1876) 4 IA 23; ILR 2 Cal 233; Mayor of Lyons v.
East India Co ., (1836) 1 MIA 175; Raja Rai Bhagvat v. Debi Dayal Sahu , (1907) 10 Bom LR 230, 249; ILR
35 IA 48; Baldeo Sahai v. Harbans , (1911) ILR 33 All 626; Vasavaya v. Poosapati , (1924) 26 Bom LR 786
: 52 IA 1; Viranna v. Ramanamma , (1928) MWN 5; Pannalal v. Thansingh , ILR 1949 Nag 663; In re “G”
(1954) 56 Bom LR 1220.
36
Ram Coomar v. Chunder Canto , (1876) 4 IA 23 : ILR 2 Cal 233; Rajah Mokham, v. Rajah Rup Singh ,
(1893) 20 IA 127; ILR 15 All 352; Raghunath v. Nil Kanth , (1893) ILR 20 Cal 843; 20 IA 112; Debi Dayal
Sahoo v. Bhan Pertap Singh , (1903) ILR 31 Cal 433; Lal Achal Ram v. Raja Kazim Husain Khan , (1905)
32 IA 113; 9 CWN 477; Gossain Ramdhan Puri v. Gossain Dalmir Puri , (1909) 14 CWN 191; Baldev Sahai
v. Harbans , (1911) ILR 33 All 626; Dhallu Missar v. Jiwan Singh , (1893) PR No.79 of 1894; Stewart v.
Ram Chand , (1906) PR No. 26 of 1906; Indar Singh v. Munshi , (1919) ILR 1 Lah 124; U Pe Gye v. Maung
Page 7 of 7
Thien Shin , (1923) ILR 1 Ran 565; Amrita Lal Baisya v. Pratap Chandra Chakrabarty, (1929) 52 CLJ 492 ;
Abadi Begam Rani v. Muhammad Khalil Khan , (1930) ILR 6 Luck 282; Ramanamma v. Viranna , (1931) 33
Bom LR 960 (PC); Kalimuthu v. Mung Tha Din , (1936) ILR 14 Ran 392; Bisheshwar Prasad v. Jang
Bahadur , (1936) ILR 12 Luck 339; Ram Sarup v. Court of Wards , (1939) 42 Bom LR 307 : 67 IA 50.
37
Fischer v. Kamala Naicker , (1860) 8 MIA 170, 187; Gholam v. Walidad , (1980) PR No. 70 of 1870.
38
Chedambara Chetty v. Renja Krishna Muthu Vira Puchanja Naicker , (1874) 13 Beng LR 509 ; 526, 1 IA
241; Virbhadra Gowdu v. Guruvenkata Charlu , (1898) ILR 22 Mad 312; Gopal v. Gangaram , (1895) ILR
20 Bom 721; Ahmedbhoy Hubibhoy v. Vulleebhoy Cassumbhoy , (1884) ILR 8 Bom 323; Siva Ramayya v.
Ellamma, (1898) 9 MLJ 17; Chunilal v. Prabhudas, (1897) PJ 258 ; Debi Dayal Sahoo v. Bhan Pertap Singh
, (1903) ILR 31 Cal 433.
End of Document
CHAPTER XVIII TORTS TO INCORPOREAL PERSONAL PROPERTY
CHAPTER XVIII TORTS TO INCORPOREAL PERSONAL PROPERTY
INCORPOREAL rights like easements are known to the common law and they have given rise to incorporeal rights
like copyright and rights to trade marks and trade names which have also some attributes of property without being
property in themselves. Certain statutes have also created rights which in themselves are rights to property e.g.
patents, copyright, and registered trade marks. They are statutory forms of incorporeal property, created, protected
and made terminable by the respective statutes. Their existence and enjoyment are subject to the conditions of the
respective statutes. The Patents Act, 19701 deals with the rights in patented inventions. The Designs Act, 20002
deals with copyright in registered designs. The Copyright Act, 19573 deals with copyright in literary, dramatic,
musical and artistic works, cinematograph films, records and radio broadcasts. The Trade Marks Act, 19994 deals
with the rights in the registered trade marks. It is not convenient to deal with the subject of patents, copyright,
Trade-mark, Tradename and Industrial designs or with statutes relating to them in a book on Torts and the reader is
referred to treatises specifically dealing with these subjects.
1
(XXXIX of 1970).
2
(Act 16 of 2000).
3
(XIV of 1957).
4
(Act 47 of 1999).
End of Document
CHAPTER XIX NEGLIGENCE AND ALLIED TOPICS
1. NEGLIGENCE IN GENERAL
1(A) Meaning of Negligence
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a
prudent and reasonable man would not do. 1 Actionable negligence consists in the neglect of the use of ordinary
care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property. 2 According to Winfield, “negligence as a tort is
the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”. 3 The
definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party
complained of towards the party complaining the former's conduct within the scope of the duty; (2) Breach of the
said duty; and (3) consequential damage. 4 Cause of action for negligence arises only when damage occurs for
damage is a necessary ingredient of this tort. 5 But as damage may occur before it is discovered; it is the
occurrence of damage which is the starting point of the cause of action. 6 The above statement of the law has
been quoted by the Supreme Court from 24th edition, pp. 241, 242 of this book and approved. 7
But a contingent liability arising from Negligence is not as such an actionable damage until the contingency occurs.
8 In cases where damage occurs before the victim really knows that he has suffered damage, the law generally
allows that the time for a claim would start running from the point the claimant came to know the essence of the act
or omission to which the damage was attributable in other words the substance of what ultimately came to be
pleaded as his case is negligence. 9
Cause of action for negligence accrues when damage that is real damage, as distinct from purely minimal damage,
is suffered. A state of anxiety produced by some negligent act or omission but falling short of a clinically
recognisable psychiatric illness does not constitute damage sufficient to complete a tortious cause of action.
Further, a risk produced by a negligent act or omission of an adverse condition arising at some time in the future
does not constitute damage sufficient to complete a tortious cause of action. The victim of the negligence must wait
for the event when the risk materialises. The risk of the further disease is not actionable and neither is psychiatric
illness caused by contemplation of that risk. But if some physical injury has been caused by the negligence, the
victim can recover damages not simply for his injury in its present state but also for the risk that the injury may
worsen in the future and for the present ongoing anxiety that may happen. These principles were reaffirmed
recently in Roshwell v. Chemical & Insulating Co. Ltd. Re Pleural Plaque Litigation . 10 The claimants in the case
had been negligently exposed to asbestos in the course of this employment and developed pleural plaque which
are areas of fibrous thickening of pleural membrane which surrounds the lungs. They cause no symptoms nor other
asbestos related diseases. But a diagnoses of pleural plaques discloses the presence of in the lungs of asbestos
fibres which cause life threatening disseases and may cause the person to contemplate his future with anxiety or
even suffer clinical depression. The claims in these cases were rejected by the House of Lords for want of
actionable injury.
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“The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there
is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness
assumes the legal quality of negligence and entails the consequences in law of negligence. The cardinal principle of
liability is that the party complained of should owe to the party complaining a duty to take care, and that the party
complaining should be able to prove that he has suffered damage in consequence of a breach of that duty.” 11 “In
strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or
commission; it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person
to whom the duty was owing:” 12
In the case of Jacob Mathew , 13 the Supreme Court pointed out the difference between civil and criminal
negligence. “For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to
amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.
Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot
form the basis of prosecution.” 14
1(B) Existence of Duty 1(B)(i) Conditions for existence of duty
The existence of a duty situation or a duty to take care is thus essential before a person can be held liable in
negligence. 15 Normally the question of existence of a duty situation in a given case is decided on the basis of
existing precedents covering similar situations; but it is now well accepted that new duty situations can be
recognised. 16 A privilege or liberty of yesterday may become duty of today for the law of negligence is
consistently influenced and transformed by social, economic and political considerations. 17
1(B)(i)(a) Foreseeability and Proximity
The general principle of foreseeability and proximity applicable in solving cases presenting the existence or
otherwise of a new duty situation was laid down by LORD ATKIN in the celebrated case of Donoghue v. Stevenson
18 in the following words: “You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be,
persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions which are called in question.” 19 The
duty of care is to avoid acts and omissions which one can reasonably foresee would be likely to injure another. This
is the principle of foreseeability. But this duty is not owed to everyone who is likely to be injured but only to persons
who are so closely and directly affected by one's act that it is reasonable for one to have them in contemplation.
This is the principle of proximity “which refers to such a relation between the parties as renders it just and
reasonable that liability in negligence may be imposed.” 20 In Donoghue v. Stevenson , 21 LORD MACMILLAN
said: “The conception of legal responsibility may develop in adaptation to altering social conditions and standards.
The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of
negligence are never closed.” 22 In this case the plaintiff purchased a bottle of ginger beer manufactured by the
defendants and suffered from severe gastro-enteritis on consuming a part of the contents of the bottle because it
contained the decomposed remains of a snail. On a plea of demurrer, the HOUSE OF LORDS held that the
plaintiff's pleading disclosed a relevant cause of action and in holding so, it recognised a new duty described as
follows: ‘A manufacturer of products, which he sells in such a form as to show that he intends them to reach the
ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and
with the knowledge that the absence of reasonable care in the preparation or putting up the products will result in
an injury to the consumer's life or property, owes a duty to the consumer to take reasonable care.’ 23
Then in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd ., 24 again a new duty was recognised. It was held that
the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts
him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise
to an action for damages apart from contract or fiduciary relationship. LORD PEARCE in that case said : “How wide
the sphere of the duty of care in negligence is to be laid depends ultimately upon the Court's assessment of the
demands of society for protection from the carelessness of others.” 25
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The principle of foreseeability and proximity laid down by LORD ATKIN was again affirmed in Home Office v. Dorset
Yacht Co. Ltd ., 26 in which case, some borstal trainees escaped one night due to the negligence of the Borstal
Officers who contrary to orders were in bed. The trainees caused damage to a yacht, the owner of which sued the
Home Office for damages. A preliminary issue was raised whether on the facts pleaded, the Home Office or its
servants owed any duty of care to the owner of the yacht. It was held that the causing of damage to the yacht by the
borstal trainees ought to have been foreseen by the Borstal Officers as likely to occur if they failed to exercise
proper control and supervision and, therefore, the officers prima facie owed a duty of care to the owner of the yacht.
In holding so, LORD REID observed: “There has been a steady trend towards regarding the law of negligence as
depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority
but whether recognised principles apply to it. Donoghue v. Stevenson may be regarded as a milestone, and the
well-known passage in LORD ATKIN's speech should, I think, be regarded as a statement of principle. It is not to be
treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time
has come when we can and should say that it ought to apply unless there is some justification or valid explanation
for its exclusion.” 27
In Anns v. London Borough of Merton , 28 which was a case of pure economic loss and was therefore later on
overruled, the general principle came to be stated in very wide terms. As will be seen hereinafter, subsequent
decisions explained and pointed out various limitations to the general principle stated in this case. But to appreciate
how the law developed, it is desirable to notice this case and the general principle stated therein. In this case the
plaintiffs were lessees under long leases of certain flats built in 1962. The owners who were also the builders were
the first defendant. The local authority i.e. the Borough Council was the other defendant. In 1970, structural
movements began to occur resulting in cracks in the walls, sloping of floors etc. The plaintiffs’ case was that these
were due to the inadequate foundation, there being a depth of two feet six inches only instead of three feet or
deeper as shown in the approved plans. As against the local authority the plaintiffs’ claim was based on negligence
in failing to carry out necessary inspection of the foundation before it was covered up. The local authority was
enabled through building bye-laws made under the Public Health Act, 1936 to supervise and control the
construction of buildings in their area and in particular the foundations of buildings. The HOUSE OF LORDS held
that the Act and the byelaws did not impose a duty to inspect but conferred a discretionary power but this by itself
did not exclude the existence of the common law duty to take care and that the local authority was under a duty to
take reasonable care to secure that a builder did not cover in foundations which did not comply with the bye-laws
and this duty was owed to owners and occupiers of the building other than the builder who might suffer damage as
a result of the construction of inadequate foundations. Accordingly the local authority was held liable to the plaintiffs
if it were proved that in failing to carry out an inspection it had not properly exercised its discretion and had failed to
exercise reasonable care in its acts or omissions to secure that the bye-laws applicable to foundations were
complied with, or that the Inspector having assumed the duty of inspecting the foundation had failed to take
reasonable care to ensure that the bye-laws were complied with. In holding so, LORD WILBERFORCE who made
the leading speech observed as follows: “Through the trilogy of cases in this House, Donoghue v. Stevenson ,
(1932 AC 562 : 147 LT 281 : 48 TLR 494), Hedley Byrne & Co. Ltd. v. Haller Partners Ltd ., (1964 AC 465 : (1963)
3 WLR 101 ) and Home Office v. Dorset Yacht Co. Ltd ., (1970 AC 1004 : (1970) 2 WLR 1140 ) the position has
now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to
bring the facts of that situation within those of previous situations in which a duty of care has been held to exist.
Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged
wrong-doer and the person who has suffered damage there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to
cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is
answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or
to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach
of it may give rise.” 29
1(B)(i)(b) Just and Reasonable : Incremental development
Anns case before it was finally overruled came up for consideration before the House of Lords and the Privy
Council in later cases which have explained the two stage test laid down by LORD WILBERFORCE and pointed out
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its limitations. In Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. , 30 it was observed
that the temptation to treat the aforementioned passage from the speech of LORD WILBERFORCE as being itself
of a definitive character should be resisted. 31 It was further laid down that “in determining whether or not a duty of
care of particular scope was incumbent on a defendant it is material to take into consideration whether it is just and
reasonable that it should be so.” 32 In that case the plaintiffs were building owners. The approved plan relating to
drainage system was not adhered to during the building operation. The local authority became aware of the building
owners’ non-compliance with the approved plan but took no action. Later the drainage system so constructed was
found to have substantially failed and it had to be reconstructed. The building owners sued the local authority
alleging that it was in breach of the duty owed to them to ensure that the drainage system being installed complied
with the approved plans. Negativing the existence of any duty in favour of the plaintiffs, the HOUSE OF LORDS
held that the object of the statutory provisions was to safeguard the occupiers of houses built in the local authority's
area and also members of the public generally against dangers to their health which may arise from defective
drainage installation and not to safeguard building owners against the loss resulting from their failure to comply with
approved plans. It was pointed out that Anns case was a case of a subsequent owner occupier and not of a building
owner who had himself been responsible in not adhering to the approved plan. 33 Anns case was again
distinguished by the House of Lords in Curran v. Northern Ireland Co-ownership Housing Association Ltd ., 34 In
this case the plaintiff's predecessor in title built an extension to a house with the aid of an improvement grant made
by the Northern Ireland Housing Executive. The Housing (N.I.) Order, 1976 required the improvement work to be
‘executed to the satisfaction of the Executive’. The plaintiffs after purchase of the house, discovered that the
extension had been so defectively constructed that it needed to be rebuilt at a considerable cost. In an action for
damages against, inter alia , the Housing Executive, the plaintiffs alleged that the Executive had been negligent in
causing or permitting the extension to be built defectively. The House of Lords accepted the explanation of Anns
case as given in Peabody Donation Fund's case and held that the Housing Executive owed no duty of care to the
recipients of improvement grants or their successors essentially for the reason that the Executive had no power of
control over building operations once aproval for grant was given and so it would be not fair and reasonable to
impose a duty of a care on the Executive. The passage from LORD WILBERFORCE's speech in Anns 35 was
further explained by the Privy Council in Yuen Kum-Yen v. Attorney General of Hongkong . 36 It was observed that
the first stage of test in the two stage test laid down by LORD WILBERFORCE was a composite test requiring the
presence of foreseeability of harm and close and direct relationship of proximity before a duty of care could be
inferred. 37 It was further observed that the second stage of LORD WILBERFORCE's test which implies policy
considerations is one which will rarely have to be applied. 38 In this case it was held by the Privy Council that
Commissioner of Deposit taking companies having regulatory power under a Hongkong Ordinance in regard to
refusing or revoking registration did not owe any duty of care to the depositors who lost their deposits as the
company was run fraudulently and speculatively. This conclusion was reached on the ground that there was
absence of close and direct relationship of proximity between the Commissioner and the prospective depositors,
although it was reasonably foreseeable that if an uncreditworthy company were to be placed on or allowed to
remain on the register, persons who might deposit money with it would be at a risk of losing their money. It may
here be mentioned that the Commissioner had no control over the day to day management of the companies and
the Ordinance had not instituted a far reaching and stringent supervision system to reasonably warrant an
assumption by the depositors that all registered companies were sound and creditworthy.
Yuen Kun-Yen's case was followed by the Privy Council in Davis v. Radcliffe . 39 In this case the Treasurer and
Finance Board having licensing and regulatory powers over a bank under the Banking Act of 1975 of the Isle of
Man were held to owe no duty of care to depositors who lost their deposits on the failure of the bank. LORD GOFF
who delivered the judgment of the Privy Council stressed the following points : “(1) Foreseeability of loss or damage
provides of itself no sufficient criterion of liability, even when qualified by a recognition that liability for such loss or
damage may be excluded on grounds of policy”. (2) “It is also necessary to establish what has long been given the
label of ‘proximity’ an expression which refers to such a relation between the parties as renders it just and
reasonable that liability in negligence may be imposed on the defendant for loss or damage suffered by the plaintiff
by reason of the act or omission of the defendant of which the complaint is made”. (3) “It is not desirable, atleast in
the present stage of the development of the law, to attempt to state in broad general propositions the circumstances
in which such proximity may or may not be held to exist.” (4) “It is considered preferable that the law should develop
categories of negligence incrementally and by analogy with decided categories”. 40 The decisions in Yuen Kun-yeu
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41 and Davis 42 were followed by the Supreme Court in Pramod Malhotra v. Union of India . 43 In this case the
Reserve Bank of India (RBI) granted a licence under s. 23 of the Banking Regulation Act, 1949 to Sikkim Banking
Ltd. , (SBL) functioning in Sikkim to open a branch in Delhi in 1997 though an inspection by RBI had found several
short comings and deficiencies in its functioning. The depositors in this branch because of the poor financial
condition of the Bank were allowed only 9.037% of their deposits under an Amalgamation Scheme by which SBL
was amalgamated with Union Bank of India (UBI). The depositors sued for compensation against the RBI for
negligence in granting permission to SBL to open the branch in Delhi. The Supreme Court relying upon Yuen Kun-
yeu and Davis held the RBI not liable. The court observed: “The relationship of the RBI with creditor or depositors of
SBL is not such that it would be just or reasonable to impose a liability in negligence on RBI.” 44 The case thus
adopts the incremental approach as approved in Davis by the Privy Council and later also by the House of Lords in
Caparo 45 and Murphy . 46
The composite nature of the first stage of the two stage test laid down in Anns was also emphasised in Hill v. Chief
Constable of West Yorkshire . 47 In this case the facts were that a person named Peter Sutcliffe committed a
number of murders and attempted murders of young women. The mother of the last victim before the criminal was
apprehended sued the Chief Constable in negligence for damages. Negligence lay, according to the plaintiff, in not
apprehending the criminal earlier because of a number of mistakes in the investigation of earlier offences. It was
held by the House of Lords that the police did not owe any general duty of care to the individual members of the
public to identify and apprehend an unknown criminal eventhough it may be reasonably foreseeable that harm was
likely to be caused to a member of the public if the criminal was not detected and apprehended. It was again laid
down that “fore-seeability of likely harm is not in itself a sufficient test of liability in negligence. Some further
ingredient is invariably needed to establish proximity of relationship” 48 which was lacking in the case. It was
further held that public policy also required that there should be no liability. Similar is the case of Calveley v. Chief
Constable of the Merseyside Police 49 where it was held that a police officer investigating a suspected crime owes
no duty of care to the suspect so as to make him liable in negligence, as distinguished from malicious prosecution,
nor does he owe any duty of care while investigating charges in a domestic inquiry against another police officer so
as to make him liable in negligence, as distinguished from the tort of misfeasance in public office. Public policy,
apart from other considerations requires fearless and efficient investigation without the shadow of a potential action
for damage for negligence. The House of Lords in Leigh & Sillavan v. Aliakmon Shipping Co ., 50 also explained
the passage from the speech of LORD WILBERFORCE in Anns and made two observations in this context : (1)
The passage does not provide a universally applicable test of the existence and scope of duty of care in the law of
negligence, and (2) The passage deals with the approach to the question of existence and scope of a duty of care
in a novel type of factual situation which is not analogous to any factual situation in which such a duty has already
been authoritatively held to exist or held not to exist and so the passage cannot be used as a means of reopening
issues long settled by past decisions. 51
In Caparo Industries plc v. Dickman , 52 the House of Lords noticed that cases subsequent to Anns have
emphasised the inability of any single general principle to provide a practical test which can be applied to every
situation to determine whether a duty of care is owed and if so what is its scope. 53 After referring to the proximity
principle which involves fairness. LORD BRIDGE observed: “The concepts of proximity and fairness—are not
susceptible of any such precise definition as would be necessary to give to them utility as practical tests, but
amount in effect to little more than convenient labels to attach to the features of different specific situations which,
on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care
of a given scope. Whilst recognising of course, the importance of the underlying general principles common to the
whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the
more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the
limits of the varied duties of care which the law imposes. We must now I think recognise the wisdom of the words of
BRENNAN J in the High Court of Australia in Sutherland Shire Council v. Heyman , 54 where he said : “It is
preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with
established categories rather than by a massive extension of the prima facie duty of care restrained only by
indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of
persons to whom it is owed”. 55 Finally the House of Lords in Murphy v. Brentwood District Council 56 confirmed
the criticism in later decisions of the generalised principle stated by Lord Wilberforce in Anns case and overruled
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that case as being one purely in the domain of economic loss which aspect is considered later. 57 The decision in
Murphy reaffirmed that the correct principle is stated by BRENAN J. in the quotation from his judgment extracted
above. 58
The tort of negligence as developed after Anns was open to abuse as graphically described by Lord Templeman
(with whom other Law Lords agreed) in C.B.S. Songs Ltd. v. Amstrad Consumer Electronics plc . 59 as follows:
“My Lords, it is always easy to draft a proposition which is tailor-made to produce the desired result. Since
Anns. v. Merton London Borough , (1977) 2 All ER 492 : (1978) AC 728 put the floodgates on the jar, a
fashionable plaintiff alleges negligence. The pleading assumes that we are all neighbours now, Pharisees and
Samaritans alike, that foreseeability is a reflection of hindsight and that for every mischance in an accident-
prone world someone solvent must be liable in damages. In Governors of the Peabody Donation Fund v. Sir
Lindsay Parkinson & Co. Ltd. , (1984) 3 All ER 529 : (1985) AC 210 the plaintiffs were the authors of their own
misfortune but sought to make the local authority liable for the consequences. In Yuen Kun-yeu v. A.G. of Hong
Kong , (1987) 2 All ER 705 : (1988) AC 175 the plaintiff chose to invest in a deposit-taking company which
went into liquidation; the plaintiff sough to recover his deposit from the commissioner charged with the public
duty of registering deposit-taking companies. In Rowling v. Takaro Properties Ltd. , (1988) 1 All ER 163 :
(1988) 2 WLR 418 a claim for damages in negligence was made against a minister of the Crown for declining
in good faith to exercise in favour of the plaintiff a statutory discretion vested in the minister in the public
interest. In Hill v. Chief Constable of West Yorkshire , (1988) 2 All ER 238 : (1988) 2 WLR 1049 damages
against a police force were sought on behalf of the victim of a criminal. In the present proceedings damages
and an injunction for negligence are sought against Amstrad for a breach of statutory duty which Amstrad did
not commit and in which Amstrad did not participate. 60
The incremental approach of development to cover new situation as laid down by BRENAN J. of Australia and as
now approved in Caparo 61 and Murphy 62 will to a large extent prevent the abuse of the tort.
The passages from the speeches of LORD REID in Home Office v. Dorset Yacht Co., Ltd ., 63 and LORD
WILBERFORCE in Anns v. Merton London Borough 64 which have been noticed above were applied in a new
situation in Junior Books Ltd. v. Veitchi Co. Ltd ., 65 In this case, the respondents (the owners) engaged a building
company to build a factory for them. The owners’ architects nominated the appellants (the sub-contractors) to lay a
concrete floor in the main production area of the factory. There was no privity of contract between the owners and
the subcontractors. Two years after the floor was laid, it developed cracks. The owners brought an action against
the sub-contractors in negligence claiming damages for the cost of replacing the floor and for the consequent
economic loss arising during the period of replacement. The sub-contractors raised a preliminary issue that the fact
pleaded did not disclose a cause of action for the reason that in the absence of contractual relationship they could
not be held liable as there was no plea that the defective floor was a danger to the health or safety of any person or
constituted a risk of damage to any other property of the owners. The HOUSE OF LORDS negativing the sub-
contractors’ plea held that where the proximity between the person who produced faulty work or the faulty article
and the user was sufficiently close, the duty of care owed by the producer to the user extended beyond a duty
merely to prevent harm being done by the faulty work or article and included a duty to aviod faults being present in
the work or article itself, so that the producer was liable for the cost of remedying defects in the work or article or for
repairing it and for any consequential economic or financial loss. It was further held that the proximity between the
parties was sufficiently close for the sub-contractors to owe a duty of care to the owners not to lay a defective floor
which would cause the owners financial loss. This conclusion was reached on the following considerations: (1) The
owners or their architects had nominated the subcontractors as specialists sub-contractors and the relationship
between the parties fell only just short of contractual relationship; (2) The sub-contractors must have known that the
owners relied on the sub-contractors’ skill and experience to lay a proper floor and (3) The damage caused to the
owners was a direct and foreseeable result of the sub-contractors’ negligence in laying a defective floor.
An example of an Indian case which applied the principle of forseeability and proximity in a new situation is found in
the decision of the Madhya Pradesh High Court in Madhya Pradesh Road Transport Corporation v. Basanti Bai . 66
In that case a driver of the appellant was stabbed by a ruffian while going to join his duty in early hours of the
morning. There was a communal riot in the city and the authorities had promulgated curfew order. The question
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before the Court was whether the appellant was negligent in not providing adequate arrangement for the safety of
the deceased while he was going to join his duty. The Court after referring to Donoghue v. Stevenson , 67 Hedley
Burne & Co. Ltd. v. Heller and Partners Ltd ., 68 and Home Office v. Dorset Yacht Co., Ltd ., 69 observed: “These
cases clearly establish that a new duty-situation can be recognised by Courts and that in determining whether in a
given situation, not covered by authority, a duty to take care exists, guidance is to be taken from the principle stated
by LORD ATKIN in Donoghue v. Stevenson .” 70 On applying the said principle the Court held the appellant liable
and expressed itself as follows: “Normally an employer owes no duty of care for the safety of his employee while
the employee is proceeding to the place of employment from his house. The point, however, is whether the same
rule prevails when the situation is abnormal and when as a result of outbreak of violence in the city, the law
enforcement authority promulgate curfew order requiring citizens to be within doors as the only means which can
reasonably ensure their safety. In such a situation, when every citizen is expected to be within doors as a matter of
safety, if an employer requires his employee to come to the place of employment in early hours of the morning, it is
reasonably foreseeable that the employee is likely to suffer injury at the hands of some ruffian while on the way to
join his work unless adequate arrangements are made by the employer for the safety of the employee. Requiring an
employee to come to work in such a situation is itself such an act from which harm to the employee is foreseeable
and the employer being closely and directly connected with the act of requiring him to join his work, the employer
must have his safety in contemplation. On the principle enunciated by LORD ATKIN in Donoghue v. Stevenson ,
the employer must, in the circumstances prevailing in the instant case, be held to owe a duty of care to the
employee while he was on his way to his place of work. The employer should have taken adequate care for the
safety of the employee while he was on his way, either by providing safe transport or some persons to accompany
and guard him. In case it was not possible for the employer to make any arrangement for the safety of the
employee, the employer should have temporarily closed down the business, as the only alternative of avoiding
harm to the employee. It has also to be kept in view that the employee, in the instant case, unlike a police constable
or a fireman, was not in such an employment where it was expected of him from the nature of employment to face
the hazards of a riot”. 71
The proximity principle, as already seen, limits the persons to whom a duty is owed. They are referred to as
neighbours by LORD ATKIN in Donoghue v. Stevenson , 72 and described to be those “who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation”. 73 It has further been seen that
the proximity principle realistically “refers to such a relation between the parties as renders it just and reasonable
that liability in negligence may be imposed.” 74 In other words the relationship must have been such that in justice
and fairness the defendant like a reasonable man ought to have kept the plaintiff in contemplation while doing the
act of which complaint is made. It is in this sense that the test of proximity may be briefly described as foreseeability
of a reasonable man. The proximity principle does not require physical proximity. A manufacturer has no physical
proximity with the consumer of his product yet in the case of Donoghue v. Stevenson , 75 he was held to owe a
duty to the consumer. It is also not necessary that the person wronged should be identifiable by the wrong-doer if
the class to which he belongs comes within the scope of reasonable foreseeability. For example, drivers of motor-
vehicles owe a duty of care to other road users and the claim of a road user who is injured by the negligence of the
driver of a motor-vehicle in a road accident cannot be defeated on the ground that the defendant could not foresee
that the plaintiff would be using the road on the date of the accident. Sometimes nice questions of duty arise which
have to be answered by applying the test of foreseeability ex post facto . But the test is foresight of a reasonable
man and not the hindsight of the Court for it is easy to become wise after the event and so one must avoid to
confuse the facts that actually happened with the facts which could have been reasonably foreseen and which
really form the test of existence of the duty. 76 Taking again the example of road accident, it was held in Bourhill v.
Young , 77 that a motor-cyclist who drove his vehicle negligently and was killed in a road accident could not have
reasonably foreseen that the plaintiff, a pregnant woman, seeing the accident, would suffer severe nervous shock
resulting in birth of the still-born child and accordingly he owed no duty to her and was not guilty of negligence in
relation to her. In contrast in Haley v. London Electricity Board , 78 where the plaintiff, a blind man, was injured by
falling into a trench dug by the defendants under statutory powers and where the defendants had taken precautions
which would have given adequate warning to ordinary people with good sight and exercising ordinary care but
which were insufficient for blind persons, the HOUSE OF LORDS held the defendants liable as they found it to be
foreseeable that blind persons may pass along a city pavement. In Carmarthenshire County Council v. Lewis 79 a
small child was negligently allowed to run on the road by a school authority. A lorry driver while saving the child met
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with an accident and was killed. The lorry driver's widow sued the school authority. It was pleaded in defence that
though the school authority might have owed a duty of care to the child, they owed no such duty to the lorry-driver.
The House of Lords negatived this defence on the ground that injury to someone else while saving the child was
foreseeable. In the words of LORD REID: “Every day people take risks in order to save others from being run over,
and if the child runs into the street the danger to others is almost as great as the danger to the child.” 80 In Barnes
v. Hampshire County Council , 81 a five year-old child, who was released from school 5 minutes early, was injured
on way home. The usual practice was that a child would be met by his parent at the time of release. The House of
Lords held the school authority liable for negligence. The test of foreseeability was applied in awarding damages for
nervous shock in Mcloughlin v. O'Brian . 82 In this case, the plaintiff's husband and three children were involved in
a motor-accident caused by the negligence of the defendant. One child was killed and the husband and two other
children were severely injured. The plaintiff was two miles away at her home at the time of the accident. She was
told of the accident by a motorist who had been at the scene of the accident. She was taken to the hospital where
she saw her husband and the two children severely injured and heard about the death of the third child. As a result
she suffered severe and persisting nervous shock. In holding that the plaintiff was entitled to succeed, the House of
Lords laid down that the test of liability for damages for nervous shock was reasonable foreseeability and the
plaintiff was entitled to recover even though she was not at or near the place of the accident at the time or shortly
afterwards as the nervous shock suffered by her was a reasonably foreseeable consequence of the negligence of
the defendant. As explained recently in White v. Chief Constable of the South Yorkshire Police , 83 to satisfy the
test the plaintiff will have to show existence of close relationship of love and affection with the victim of the accident
and close proximity in time and space with the accident or its aftermath.
1(B)(i)(c) Economic loss
Subject to exceptional cases, where a professional man is in contractual relationship 84 or where there is special
proximity due to special facts such as that the plaintiff relies on special skill of the defendant and the relationship is
just short of contractual relationship as was found in the cases of Junior Books Ltd. v. Veitchi Co. Ltd ., 85 and
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd ., 86 the tort of negligence does not cover purely economic loss.
87 Physical damage to person or property or the existence of danger or threat of danger of such damage is an
essential part of the cause of action in negligence. 88 In considering whether this requirement is met in a given
case one has to exclude that property the defective condition of which is alleged to give rise to the danger or
damage for which the action is brought. 89 These general features of the tort of negligence follow from the case of
Donoghue v. Stevenson 90 itself. It may be recalled that the consumer's claim against the manufacturer in that
case was not that she suffered economic loss as the ginger beer supplied by the retailer was defective but that the
defective quality of the ginger beer caused physical damage to her person in that she suffered severe gastro-
enteritis. The duty of care recognised in that case which was owed by the manufacturer was to avoid “foreseeable
injury to the consumer's life or property.” 91 These general features were admirably analysed by LORD BRANDON
in his dissenting speech in Junior Book's 92 case and this analysis was accepted by the HOUSE OF LORDS in D
& F Estates Ltd. v. Church Commissioners . 93 This was an action by lessees of a block of flats for recovery of cost
of replacing defective plaster as damages in tort against the builders. It was held that in the absence of contract the
cost of repairing a defect in a chattel or a structure discovered before it caused damage to person or any other
property was purely economic loss and could not be recovered from the builders in tort by a buyer, hirer or lessee of
the building. It was further held that in case of complex structures or chattels one element of the structure or chattel
may be regarded as distinct from another element so that damage to one part because of hidden defect in the other
may be regarded as damage to other property. It was observed that in Anns 94 the damage to walls because of
hidden defect in the foundation could be considered as damage to other property. The majority decision in Junior
Books ' 95 case was explained as confined to special proximity found in that case.
Anns case which was distinguished as stated above in the case of D & F Estates Ltd . was finally overruled as
being one of pure economic loss in Murphy v. Brentwood District Council . 96 In this case the Council had
approved the plan of a building on the negligent advice of their engineers which led to the defective foundation of
the building resulting in extensive damage to the walls and pipes. The plaintiff purchaser of the building suffered
loss in reselling the building at a diminished price, i.e. , at a price less than its market value which the building would
have fetched had it been in sound condition. The plaintiff's claim of this loss against the Council in an action in
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negligence was negatived by the House of Lords on the ground that this was pure economic loss and that the
Council owed no duty to protect building owners or occupiers against such loss when carrying out its statutory
functions of controlling and regulating building construction. The same view was taken in the case of Department of
Environment v. Thomas Bates & Sons Ltd ., 97 These cases 98 establish that a person responsible for a defect in
a building, who may compendiously be described as the builder, is responsible on the principle of Donoghue v.
Stevenson 99 in the event of the defect, before it is discovered, causing physical injury to persons or damage to
property other than the building itself but he cannot be held responsible in tort for pure economic loss such as the
cost of remedying the defect or the cost of repairing the damage to the building caused by the defect or of loss in
value of the building. But it cannot be laid down as an inflexible rule that damage to person or property caused after
the defect in the building is discovered will never be recoverable. Whether the knowledge of the defect negatived
the duty of care or broke the chain of causation would depend upon whether it was reasonable to expect the plaintiff
to remove or avoid the danger and whether it was unreasonable for him, knowing the danger, to run the risk of
being injured. It was so held by the Court of Appeal in Target v. Torfaen Borough Council . 1 In that case, the
plaintiff a tenant in a house, designed and built by the Council, fell down from a flight of stone steps because of
absence of handrails and proper lighting. The defect had become known to the plaintiff and he had complained yet
the Council was held liable (subject to 25% contributory negligence of the plaintiff) as on the facts it was not
reasonable or practical for the plaintiff to provide a handrail or lighting for the steps and it was not unreasonable for
him to run the risk of injury.
The reasons why pure economic loss should not generally give rise to liability in negligence were well described by
BRENNAN J. of Australia in Bryan v. Maloney , (1995) 182 CLR 609, p. 632 (where he was in minority of one): “If
liability were to be imposed for the doing of anything which caused economic loss that was foreseeable, the tort of
negligence would destroy commercial competition, sterilize many contracts, and in the well known dictum of CHIEF
JUSTICE CARDOZO expose defendants to potential liability in an indeterminate amount for an indeterminate time
to an indeterminate class”. This passage from BRENNAN J's judgment was approvingly quoted by majority
(GLEESON C.J., GUMMOW, HAYNE and HAYDON JJ.) in Woolcock Street Investment Pty. Ltd. v. CDG Pty Ltd. 2
and it was observed: “That is why damages for pure economic loss are not recoverable if all that is shown is that
the defendants’ negligence was a cause of the loss and the loss was reasonably foreseeable.” 3 In this case it was
held that the builder of a commercial building was not liable to a subsequent purchaser for economic loss arising
out of structural defects in the building. Bryan v. Maloney (supra) was distinguished on the ground that it was a case
of a building used for dwelling and not a commercial building. The distinction made between a dwelling and
commercial building to bypass Maloney is not persuasive and Woolcock comes very near to the decision in Murphy
.
1(B)(i)(d) Physical damage
Though direct physical damage is qualitatively different from indirect economic loss for inferring liability, it does not
follow that in cases of physical damage to property in which the plaintiff has a proprietory or possessory interest the
only requirement to be established by the plaintiff is reasonable foreseeability. “The elements of foreseeability and
proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the
nature of harm sustained by the plaintiff;” of course these three matters overlap with each other and are really
facets of the same thing. It was so held in Marc Rich & Co. AG v. Bishop Rock Marine Co. Ltd . 4 by the House of
Lords. In this case, a surveyor acting on behalf of a classification society recommended a cargo vessel to continue
after temporary repairs and that repairs be further examined after the cargo was discharged. The vessel sank with
total loss of cargo. Classification societies are independent non-profit-making entities, created and operating for the
sole purpose of promoting the collective welfare, namely the safety of lives and ships at sea, and they fulfill a role
which in their absence would have to be fulfilled by states. In this background and on considerations of extra cost of
insurance, the House of Lords held that the classification society did not owe a duty of care to the cargo owners and
the carelessness of the surveyor causing loss of the cargo did not amount to actionable negligence for the reason
that it would not be fair, just and reasonable to impose such a duty on classification societies. 5
1(B)(i)(e) Policy considerations

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Policy considerations are material in limiting the persons who can claim that a duty of care not to cause economic
loss was owed to them by a tortfeasor. 6 For example, if because of A's negligence, B, an artisan, is injured and is
unable to supply goods, which he makes, to his customers with whom he has contracts, not only B but also his
customers may suffer foreseeable economic loss, but on policy considerations A cannot be held to owe any duty of
care to the customers who cannot sue A, and B can sue A for loss of earnings which will include loss of profits. 7
Similarly, when damage to B's goods is caused by negligence of A, a third person C, with whom B had entered into
a contract for sale of those goods but in whom the property or possession had not passed before the damage
cannot sue A for economic loss suffered by him even if that loss was foreseeable. 8 The law still remains as was
laid down by SCRUTTON, L.J. in Elliot Steam Tug Co. Ltd. v. Shipping Controller ; 9 “At common law there is no
doubt about the position. In case of a wrong done to a chattel, the common law does not recognise a person whose
only rights are a contractual right to have the use of services of the chattel for purposes of making profits or gains
without possession of or property in the chattel.” 10 In approving the law so stated by SCRUTTON, L.J., the Privy
Council in Candlewood Navigation Corporation Ltd. v. Mitsui OSK Lines , 11 observed that some limit or control
mechanism has to be imposed on the liability of a wrong-doer towards those who have suffered economic damage
in consequence of his negligence and that this limitation is placed at the second stage mentioned by LORD
WILBERFORCE in Ann's case. 12
Policy considerations, it has been noticed, have been taken into account in not imposing a duty of care on police
while exercising their statutory duty of investigating a crime. 13 Similarly policy considerations have generally
negatived imposition of a common law duty of care on local authorities in relation to performance of their statutory
duties. 14 Policy considerations will also negative a claim in negligence of a plaintiff who relied on his own criminal
or immoral act to support his claim. 15 Further policy considerations led to the distinction made between personal
injury and psychiatric illness resulting in restricting the area within which damages can be claimed for the latter. 16
Policy consideration have also been taken into account in limiting the duty of health professionals responsible for
protecting children from child abuse to act only in good faith and they were not held liable in negligence to the
parents when on preliminary examination they suspected the parents of abusing their child which later on further
examination was found to be incorrect and in the meantime the parents had suffered psychiatric injury. 17 Public
policy also precludes a claimant to claim damages for the loss or damage which he suffers as a result of his
criminal act and sentence imposed by a court even though the criminal act may have been done under the mental
stress caused by the defendant's negligence. 18
1(B)(i)(f) Omissions
The courts are reluctant to impose a duty to take affirmative action and, therefore, omissions less frequently attract
liability as compared to acts. 19 “An omission consists in not performing an act which is normally expected of you
either because you normally do it or because you ought to do it, and it is the latter type of omission with which the
law is concerned. But while omissions incur legal liability where there is a duty to act, such a duty will in most legal
systems be the exception rather than the rule, for it would be undulyoppressive and restrictive to subject men to a
multiplicity of duties to perform positive acts.” 20 As stated by LORD REID: “When a person has done nothing to
put himself in any relationship with another person in distress or with his property, mere accidental propinquity does
not require him to go to that person's assistance. There may be a moral duty to do so, but it is not practicable to
make it a legal duty.” 21 The principle mentioned above is applicable to real omissions and not to omissions to take
reasonable care in doing a positive act. It is not possible to give a comprehensive list of relationships which give
rise to a duty to take affirmative action but some examples of such relationships are parents and infant children;
occupier and visitor; Master and Servant. Special relationship may also in some cases lay a duty on the defendant
to take affirmative action to protect the plaintiff from the activities of a third party in charge of the defendant. The
Dorset Yacht Co.’s case, 22 illustrates this point where the Borstal Officers were found in breach of duty to prevent
the Borstal trainees in their charge from escaping and doing damage to plaintiff's yacht. Similar will be the position
in case of persons in charge of a mental hospital 23 and school. 24 Prison authorities and police in charge of
prisoners in jail or in police stations have also the duty to take care that the prisoners are prevented from harming
themselves especially in those cases where there is previous history of suicide attempts or self harm. 25 If proper
precautions are not taken (e.g. there is failure to shut the door flap of the cell) which enables a prisoner to commit
suicide, the dependants of the deceased are entitled to claim damages under the Fatal Accidents Act.26 In such a
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claim the act of the deceased of self destruction does neither give rise to the defence of Volenti non fit injuria nor to
the defence of novus actus interveniens. 27 But the court can apportion the liability in the award of damages for the
act of suicide amounts to fault and gives rise to contributory negligence. 28 In a case like this the difference
between the prisoner being of sound and unsound mind is inadequate to deal with the complexities of human
psychology in the context of the stresses caused by imprisonment. The duty is very unusual one, arising from the
complete control which the police or prison authorities have over the prisoner, combined with the special danger of
people in prison taking their own lives. 29 In India the negligence of prison authorities which results in suicide by a
prisoner may make it a public law wrong redressable in damages also in public law. 30
Even in cases where a public authority is conferred a statutory power, the normal rule is that omission to exercise
the power will not generally give rise to a liability in common law. 31 In Stovin v. Wise 32 a motor accident took
place at a road junction partly because the view was obstructed by an earth bank adjacent to the road. Although the
local highway authority had statutory power under sections 41 and 79 of the Highways Act, 1980, which conferred a
discretion, for removal of earth bank, it had taken no steps in that direction. The House of Lords held that there was
no common law duty on the Authority to exercise the power and omission to exercise it did not give rise to a claim
for damages in negligence. 33 It was laid down that the minimum precautions for basing a duty of care upon the
existence of statutory power in respect of an omission to exercise the power, if it could be done at all, were: (i) that
in the circumstances it would have been irrational for the authority not to have exercised the power, so that in effect
there was a public law duty to act and (ii) that there were exceptional grounds to hold that the policy of the statute
conferred a right to compensation on persons who suffered loss if the power was not exercised. 34
The above preconditions, laid down by the House of Lords, for holding a public authority liable in private law for
omission to exercise a statutory power were accepted by the Supreme Court in Union of India v. United India
Insurance Co. Ltd. , 35 though the Court in that case held the Union of India liable in negligence and also for
omission to exercise the power under section 13 of the Railways Act which provides that the Central Government
‘may require’ a railway administration to erect fences, screen, gates etc. In that case an express train had collided
with a passenger bus at an unmanned level crossing and the Union of India owning the railway was held guilty of
negligence being in breach of its common law duty for failing to convert the unmanned level crossing into a manned
level crossing having regard to the volume of traffic and in not providing proper signboard for warning the road
traffic.36 It was, therefore, unnecessary to go into the question whether the Union of India was also liable for
omission to exercise the statutory power under section 13. Yet the Court found the Union of India liable for the
omission holding that the two preconditions laid down in Stovin v. Wise , were satisfied basing its decision on the
controversial doctrine of ‘general reliance’ which has been applied in some Australian cases but has had no support
in English law. 37 The doctrine now stands rejected even in Australia. 38 It is submitted that when there existed a
corresponding common law duty, the ‘general reliance’ of those likely to be affected would be that the railway
administration will not be in breach of that duty and not necessarily on the exercise of the statutory power under
section 13. For the same reason, it is submitted, it was neither irrational for the Central Government not to exercise
the power under section 13 nor can it be said that the policy of section 13 was to confer a right to compensation, in
addition to the already existing right in common law, on failure to exercise the power. This was not a case where,
unless a right to compensation for omission to exercise the statutory power was inferred, the person injured was
remedyless under the common law. It is, therefore, reasonably possible to say that the two preconditions required
for holding the Union of India liable for omission to exercise the power under section 13 were not satisfied in this
case. In Rajkot Municipal Corporation v. Manjulaben Jayantilal Nakum , 39 it was held that the corporation was not
under such a duty for maintenance of roadside trees to protect them from falling and injuring a passerby that a
breach thereof gives rise to a common law action for negligence although the corporation may in its discretion
under section 69 of the relevant Corporation Act provide from time to time for ‘the planting and maintenance of trees
at roadsides and elsewhere’. The court observed that having regard to the provisions of the Act and the conditions
prevailing in the country it would not be just and proper to hold that the corporation was under a duty to keep
constant vigil by testing the healthy condition of the trees in the public places frequented by passersby and that it
was liable for omission thereof in negligence to a passerby who got injured by falling of tree.
The court of appeal in England has held that Fire Brigade, governed by the Fire Services Act, 1947, are not under a
common law duty to answer a call for help and are not under a duty to take care to do so; but where the Fire
Brigade by their own actions, had increased the risk of the danger which caused the damage, they would be liable
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for negligence in respect of that excess damage. 40 Same view has been taken in respect of the Coast Guard that
they were under no enforceable private law duty to respond to an emergency call, nor, if they did respond would
they be liable if their response was negligent unless their negligence amounted to a positive act which directly
caused greater injury than would have occurred otherwise. 41 But in Kent v. Griffith , 42 the Court of Appeal held
that, in the special circumstances of that case, the ambulance service was liable in negligence because of delay in
reaching to the patient for transporting her to the hospital as a result of which she suffered further injuries. In this
case the doctor attending on the patient, who suffered an asthma attack, telephoned the ambulance service on the
emergency line requesting an ambulance to take the patient immediately to the hospital. The call was accepted and
on further reminders the doctor was told that the ambulance was well on its way. The information given was wrong
and there was unreasonable delay in sending the ambulance. In holding the ambulance service liable LORD
WOOLF M.R. Observed : “The acceptance of the call in this case established the duty of care. On the findings of
the judge, it was the delay which caused the further injuries. If wrong information had not been given about the
arrival of the ambulance, other means of transport could have been arranged.” 43
In the Australian Case of Crimmins v. Stevedoring Finance Committee 44 a question arose whether a statutory
authority supervising stevdoring operation at Australian ports owed a worker, who was exposed to asbestos dust
the inhalation of which eventually caused the terminal lung disease mesothelioma, a common law duty of care. The
question required examination of circumstances in which a statutory authority will come under a duty to take
affirmative action to protect a person who may suffer harm if the authority does not act. The five judges who
constituted the majority and decided in favour of existence of common law duty delivered separate judgments and it
is difficult to formulate any list of circumstances accepted by all the majority judges which are required to be
considered for deciding existence of a duty of care. However in the opinion of MCHUGH J., with whose reasons
GLEESON C.J. agreed, in a novel case not covered by authority, where a plaintiff alleges that a statutory authority
owed him a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of
duty should be determined by considering the following questions:
1 Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its
statutory powers, would result in injury to the plaintiff or his or her interests? If no, there is no duty.
2 By reason of the defendants statutory or assumed obligation or control did the defendant have the power to
protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no there
is no duty.
3 Was the plaintiff or were the plaintiffs interests vulnerable in the sense that the plaintiff could not reasonably
be expected to adequately safeguard himself or herself or those interests from harm? If no, there is no
duty.
4 Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class
including the plaintiff if it did not exercise its powers? If no, there is no duty.
5 Would such a duty impose liability with respect to the defendants’ exercise of core ‘policy-making’ or ‘ quasi -
legislative’ functions? If yes then, there is no duty.
6 Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g. , the imposition
of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and
the application of the principles in that field deny the existence of a duty)? If yes, then there is no duty.” 45
1B(g) Acts of third party
The above principle that there is normally no duty to take affirmative action leads to the general rule that, apart from
special contracts and relations and the maxim respondeat superior , one man is under no duty of controlling another
to prevent his doing damage to a third. 46 In P. Perl (Exporters) Ltd. v. Camden London Borough Council , 47 the
plaintiff company and the defendant local authority owned adjoining flats. Thieves entered the flat belonging to the
defendant which was unoccupied. They bored a hole in the common wall and not admission to the plaintiff's flat and
removed goods stored there. The defendant had done nothing to improve security though vagrants had been seen
near the entrace way and other flats in the neighbourhood had been burgled. In a suit for damages it was held that
the defendant did not owe any duty of care to the plaintiff to prevent the entry of thieves from their flat. This case
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was followed in King v. Liverpool City Council , 48 where the plaintiff was a tenant of a council flat. The flat just
above the plaintiff's flat was also owned by the council. This flat was vacated by tenants. The plaintiff notified the
Council that the vacant flat was unoccupied and unprotected against vandals. Various steps were taken by the
Council which were not successful and the vandals entered and removed copper piping and other parts of the water
system which caused flooding of the plaintiff's flat. On being informed the Council did some repair work. Vandals
again entered and damaged the water supply. This caused another flood and the plaintiff had to leave the flat. In a
suit for damages it was held that it was not possible for the Council to take effective steps to defeat the actions of
trespassing vandals and the Council did not owe a duty of care to the plaintiff in respect of the damage caused by
the actions of the vandals. These cases were considered and approved by the House of Lords in Smith v.
Littlewoods Organisation Ltd ., 49 The facts in this case were that the respondents purchased a cinema with a view
to demolishing it and replacing it with a super market. The respondents after entering into possession closed the
cinema and employed contractors to make site investigations and to do some preliminary work. The cinema
remained empty and unattended. Trespassing children started fire in the cinema which spread and demolished two
adjoining properties. In a suit for damages by the owners of the affected properties it was held by the House of
Lords that although an occupier was under general duty to exercise reasonable care to ensure that the condition of
the premises was not a source of danger to adjoining property, this general duty did not encompass a specific duty
to prevent damage from fire resulting from vandalism unless such a contingency was reasonably foreseeable. As
the facts did not disclose that the risk of fire by vandals was foreseeable the suit failed. It was explained by LORD
MACKAY 50 that where the injury or damage was caused by an independent human agency the risk had bo be
highly probable or very likely before it could be said that it was reasonably foreseable. LORD GOFF 51 with whom
LORD KEITH agreed, was further of the opinion that liability in negligence for harm caused by third parties could be
made out only in special circumstances namely (i) where a special relationship existed between the plaintiff and the
defendant, (ii) where a source of danger was negligently created by the defendant and it was reasonably
foreseeable that third parties might interfere and spark it off and (iii) where the defendant had knowledge or means
of knowledge that a third party had created or was creating a risk of danger on his property and he failed to take
reasonable steps to abate it. In a recent Australian case it has been held by the High Court of Australia that the
unpredictability of criminal behaviour is one of the reasons why, in the absence of some special relationship, the law
does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk is
foreseeable. 52
1B(ii) Summary of discussion
As a result of the above discussion the legal position may be summed up in the following propositions : (A) There
are four requirements necessary to establish a duty of care. They are (1) foreseeability of harm; (2) proximity in
relationship, which implies that the parties are so related that (3) it is just and reasonable that the duty should exist;
53 and (4) policy considerations do not negative the existence of duty. If the first three conditions are satisfied,
policy considerations would rarely, in a limited class of cases, negative the existence of duty e.g. when public policy
requires that there should be no liability. 54 A policy to limit the duty must be justified by cogent and readily
intelligible considerations. 55 (B) Duty of care would arise in exceptional circumstances (1) for acts of third parties;
56 (2) in case of omissions; 57 and (3) to prevent economic loss. 58 (C) Proposition (A) cannot be used as a
means of reopening issues settled by authoritative decisions and it deals essentially with the approach to a novel
type of factual situation not covered by authorities. 59 (D) Subject to what is stated in proposition (C), proposition
(A), can give rise to developing new categories of duty of care; 60 but this should be done incrementally and by
analogy with decided cases. 61 In other words for deciding whether a new category of duty of care should be
recognised the considerations are “analogy, policy, fairness and justice”. 62 But as observed by Prof. Fleming “no
one has ever succeeded in capturing any precise formula” 63 or in other words “a comprehensive test for
determining whether there exists between two parties a relationship sufficiently proximate to give rise to a duty of
care of the kind necessary for actionable negligence.” 64 Whether the law should recognise a new category on the
above principles will essentially depend on “the court's assessment of community standards and demands”. 65
It has been already noticed 66 that there are three constituents of negligence : (1) duty to take care, (2) breach of
duty and (3) consequential damage. 67 Although these constituents are discussed separately, very often it is not
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possible to keep them in different compartments and the facts and considerations relevant to them coalesce and
overlap.
1(C) Breach of Duty
After the plaintiff has shown that the defendant owed a duty to him, the plaintiff to succeed in a claim for negligence,
has next to show that the defendant was in breach of this duty. The test for deciding this is again the test of a
reasonable or prudent man. The question to be asked is : Has the defendant omitted to do something which a
reasonable and prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs
would have done, or has he done something which a reasonable and prudent man would not have done? 68 The
standard by which to determine whether a person has been guilty of negligence is the conduct of a prudent man in
the particular situation; the amount of care, skill, diligence or the like, varying according to the particular case. The
amount of care or the like required may thus vary to the greatest extent, while the standard itself—the care, skill or
diligence of a careful, skilful, or diligent man in the particular situation—remains the same. The prudent man,
ordinarily, with regard to undertaking an act is the man who has acquired the skill to do the act which he
undertakes; a man who has not acquired that special skill is imprudent in undertaking to do the act, however careful
he may be, and, however great his skill in other things. The question to be raised with regard to a man's conduct
brought in question is, whether a prudent or careful or diligent man of his calling or business or skill would have
undertaken to do the thing in question, supposing the party to have exercised due care in executing the work
undertaken. The liability for negligence cannot be co-extensive with the judgment of each individual; that would be
as variable as the foot of each individual. 69 The standard of foresight is that of the reasonable man; that
eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is
in question. 70 Of course, a reasonable man does not mean a paragon of circumspection. 71 He is presumed to
be free both from over-apprehension and overconfidence. 72 When the circumstances of the act indicate that
certain consequences might ensue, the reasonable person must be held to have foreseen the consequences or, at
least, ought to have foreseen them. 73 A reasonable man in his actions also takes into account common
negligence in human behaviour and so he will guard against the possible negligence of others when experience
shows such negligence to be common and though not bound to anticipate folly in all its forms, he is not entitled to
put out of consideration the teachings of experience as to the form those follies take. 74 But if a man is confronted
with a dangerous situation not of his own making, and there are several courses open to him, and he is required to
make a quick judgment, the failure to exercise the best possible judgment would not itself constitute negligence. 75
The standard of care required is a matter of law and does not vary according to the individual although it does vary
according to the circumstances. 76
The degree of care which a man is required to use in a particular situation in order to avoid the imputation of
negligence varies with the obviousness of the risk. 77 If the danger of doing injury to the person or property of
another by the pursuance of a certain line of conduct is great, the individual who proposes to pursue that particular
course is bound to use great care in order to avoid the fore seeable harm. On the other hand, if the danger is slight,
only a slight amount of care is required. In the words of LORD REID : “Reasonable men do in fact take into account
the degree of risk and do not act upon a bare possibility as they would if the risk were more substantial.” 78 The
purpose to be achieved must also be taken into account and a balance struck between the risk involved and the
consequence of not taking it. 79 Motor accidents would be greatly reduced if a speed limit of 5 K.Ms. per hour were
imposed for all roads but for obvious reasons such a step cannot be taken. As observed by the Supreme Court in
the context of hazardous industries : “We cannot possibly adopt a policy of not having any chemical or hazardous
industries merely because they pose hazard or risk to the community. If such a policy were adopted, it would mean
the end of all progress and development. Such industries even if hazardous have to be set up since they are
essential for economic development and advancement of well being of the people. We can only hope to reduce the
element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner
which would pose least risk of damage to the community and maximising safety requirements in such industries.”
80 The rule that a man is held to the exercise of the degree of care which an ordinary prudent man would exercise
in the same situation is subject to one or two exceptions. If a person is highly skilled about a particular business,
and knows that to be dangerous, which another, not so skilled as he, does not know to be dangerous, the law will
hold him guilty of negligence in failing to use such expert skill. If a man holds himself out as being specially
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competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care
and skill of one ordinarily an expert in that business. But the professional knowledge then prevailing should alone
be attributed to him and he should not be judged on the basis of professional literature of later years. 81 Conformity
with the general and approved practice will generally lead to the inference in favour of defendant. 82 In the
commercialised world degree of care would also be determined by reference to the price which is being charged;
e.g., a five star hotel owes a very high degree of care for the safety of its guests. 83
A man who traverses a crowded thoroughfare with edged tools, or bars of iron, must take special care that he does
not cut or bruise others with the thing he carries. Such a person would be bound to keep a better look-out than the
man who merely carries an umbrella; and the person who carries an umbrella would be bound to take more care in
walking with it than a person who has nothing at all in his hands.
Good sense and policy of the law impose some limit upon the amount of care, skill and nerve which are required of
a person in a position of duty, who has to encounter a sudden emergency. In a moment of peril and difficulty the
Court should not expect perfect presence of mind, accurate judgment and promptitude. If a man is suddenly put in
an extremely difficult position and a wrong order is given by him, it ought not in the circumstances to be attributed to
him as a thing done with such want of nerve and skill as to amount to negligence. If in a sudden emergency a man
does something which he might, as he knew the circumstances, reasonably think proper, he is not to be held guilty
of negligence, because upon review of the facts, it can be seen that the course he had adopted was not in fact the
best. 84
The standard of care owed by an employer to his workmen in his factory for the purpose of determining his liability
to them for negligence is higher than the standard to be applied in determining whether there has been contributory
negligence on the part of one of the workmen. 85
In a suit for damages for negligence the plaintiff as already seen 86 must establish, first, a duty to take care,
secondly, a breach of the duty, and thirdly, that such breach was the proximate cause of the loss or injury to the
plaintiff. 87
1(D) Illustrations
Defendent liable-Delay in repairing water-pipe. —The Manchester Corporation's service water pipe in a road burst
and caused a pool of water to form on the road. The water lay unheeded for three days. On the third day a frost
occurred, the water froze, and on the ice so formed a motot-car skidded and knocked down and killed a man. The
Corporation were not informed until after this accident that the service pipe had burst. In an action by a widow of the
deceased under the Fatal Accidents Act, 1846, against the owner of the motor-car and the Corporation, it was held,
exonerating the owner of the motor-car, that the Corporation were liable in not having taken prompt steps to attend
to the leak and so to prevent the road from being dangerous to traffic.88
Thrown out from motor car.— The defendant was driving a party, including the plaintiff, in his motor-car from Deolali
to Igatpuri. The road passed a levelcrossing. A train was timed to pass the crossing about the time. The defendant,
who was driving his car at an excessive speed, got on the level-crossing but failed to take the sharp right-handed
turn after the crossing. The car left the road just beyond the crossing, jumped down the embankment which was ten
feet high and rushed into the paddy field below. The occupants of the car, with the exception of the defendant, were
thrown out with much violence; and the plaintiff received such grave injuries as rendered him a cripple for the rest of
his life. The plaintiff sued to recover damages caused to him by the defendant's negligence. It was held that the
defendant was grossly and culpably negligent, and that he was liable in damages. 89
Voluntary acceptance of drunken driver.— The plaintiff knowing that the driver of the motor-car was under the
influence of drink and that, consequently, the chances of accident were thereby substantially increased,
nevertheless, being under no compulsion either of necessity or otherwise, chose to travel by the car. She was
injured in an accident caused by the drunkenness of the driver, in which the driver was killed. In an action against
the personal representative of the driver, the defendant raised the defence of volenti non fit injuria . It was held that,
except perhaps in extreme cases, the maxim did not apply to the tort of negligence so as to preclude from remedy a
person who had knowingly and voluntarily accepted the risks which might arise from the driver of a car being under
Page 16 of 159
the influence of drink, and had been injured in consequence, and that the plaintiff was entitled to recover, the case
not being one of the extreme type referred to. 90
Failure to light barrier placed on highway .—A local authority erected a barrier across a highway near a crater made
by a bomb. Hurricane lamps were placed upon the barrier, but the lights were extinguished by a strong wind. The
man whose duty it was to attend to the lamps failed to visit them at night. The plaintiff, who was riding a bicycle
along the street, received injuries through colliding with the barrier. It was held the local authority were liable, as
having placed the obstruction in the highway they were under a duty to keep it lighted. 91
Stop-light not sufficient signal.— The defendant had suddenly and violently applied her brakes while driving her
motor-car in a stream of traffic. She gave no signal by hand of her intention to stop, but her car was fitted with a
stop-light which was automatically operated when the brakes were applied. It was held that such a stop-light did not
give sufficient warning of the intention of a driver to slow down or stop and that a hand signal should have been
given. 92
Accident in course of police duty.— The plaintiff was knocked down and injured by a motor cycle driven by a police
constable who was himself killed. The accident occurred in the evening about twenty minutes after lighting-up time.
The motor cycle was being driven at a speed of 60 m.p.h. in the course of police duty. The speed limit of 40 m.p.h.
was by law made not applicable to vehicles used for police purposes. It was held that the estate of the police
constable was liable for his negligence in spite of the above exemption from speed limit as he was driving at an
excessive speed. 93
Suicide in police custody.— Police taking a person with known suicidal tendencies are under a duty to take
reasonable steps for preventing him in committing suicide and are liable in damages in action for negligence
brought by the testatrix of the prisoner who died by suicide as the police failed to take reasonable preventive steps.
94
Leaving hatch uncovered. —In the ‘tween decks of a vessel in dock stevedores were engaged in rolling oil drums
along the starboard alleyway which was let by clusters of eletric lights and beside which a hatch had been
uncovered by ship repairers for the purpose of slinging a stage through it to work in the hold below. At the dinner
interval, when the stevedores left, the working conditions were perfectly safe but, in their absence, the ship
repairers finished their work and departed, leaving the hatch still uncovered and having also placed a light, which
previously illuminated that part of the ship, face downwards on the port side so that it no longer did so. The leading
stevedore, on his return with an oil drum, found himself in darkness and, seeing the glimmer of the down-turned
light, made a movement in that direction, with the intention of fetching it, but fell down the uncovered hatchway,
sustaining injuries. It was held that the ship repairers were guilty of negligence in moving the light and in leaving the
hatch uncovered; that the shipowners were also guilty of negligence in failing to ensure that the place where the
stevedore was to work was reasonably safe; and that both the ship repairers and the shipowners were liable to him
in damages since the negligence of both directly caused and contributed to the accident. 95
Excavation protected by punner-hammer.— Where the defendants, electricity undertakers had protected an
excavation made by them along a pavement by putting a punner-hammer across it and the plaintiff, a blind man,
whose stick missed the punner-hammer, tripped and fell and as a result was rendered totally deaf, it was held in an
action for damages for negligence, that duty was owed to blind persons if the operators foresaw or ought to have
foreseen that blind persons might walk along the pavement, that the carrying out of such duty might involve extra
precautions in the case of blind pedestrians and that the defendants had failed adequately to discharge that duty
and were, therefore, guilty of negligence. 96
Door not properly shut.— A contractor carrying out decorations in a house was to his knowledge left alone on the
premises by the householder's wife. During her absence, he left the house to obtain wall-paper. He fastened back
by its catch the latch of the yale lock on the front door and closed the door behind him. That door was accordingly
then held shut only by its mortise lock, and could be opened by a mere turn of the handle. During the decorator's
absence a thief entered the house and stole property, the value of which the householder claimed from the
decorator. It was held that the contractual relationship between the decorator and the householder imposed a duty
on the former to take reasonable care with regard to the state of the premises if he left them during the performance
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of his work; that it was a breach of that duty to leave the house with the front door in the condition in which he had
left it; and that it was as a direct result of that breach of duty that the thief had entered the house and stolen the
property, because the breach of duty consisted in a failure to guard against the very loss which in fact occurred.
The decorator was accordingly liable for the householder's loss. 97
Loss of service.— M, a music hall artist, was employed by C, another music hall artist, to assist him in a music hall
turn. While performing his turn at a theatre belonging to the defendants, M met with an accident owing to a loose
floor board in the footlight area of the stage, and the defendants were held liable to M for negligence. C claimed
that, as the employer of M, he was entitled to damages from the defendants in that he had lost the services of M
owing to the defendant's negligence. It was held that although the injury sustained by M was caused by an omission
and not a positive act, C was entitled to damages. 98
Injury to person running behind lorry. —A lorry belonging to the defendant company was loaded with a large box or
container. The driver attempted to drive under a railway bridge which was too low for the container to clear it and an
accident occurred, the container being thrown off the lorry and injuring the plaintiff who was running behind the lorry
at that moment. Shortly before the accident, the plaintiff had been on the lorry as a trespasser. It was contended by
the defendants that they owed no duty of care to the plaintiff (a) because he was running along the highway to climb
into it again, and was, therefore, a trespasser on the highway, and (b) because they had no reason to expect that
he would be where he was at the time of the accident. It was held that the defendants and their driver, having
created a potential source of danger owed a duty of care to anyone who might be on the highway in the near
neighbourhood when the danger meterialised, whether he was there lawfully or unlawfully, and the duty was not
confined to someone whom they could have reason to expect to be there at the time. 1
Starting of tram-car by passanger .—As the plaintiff was attempting to board a tram-car belonging to the defendant
corporation at a request stopping place an unauthorised person (a passenger) gave the driver the starting signal by
ringing the bell. The car started when the plaintiff had one foot on the step of the car and she fell and was injured.
At the time of the occurrence the conductor was on the upper deck of the car collecting fares. It was held that as
there was an appreciable time while the car was halted at the stopping place during which the conductor, in breach
of his duty and without sufficient excuse, was absent from the platform of the car from which he should have given
the starting signal, and as he might have foreseen that an unauthorised person might ring the starting bell if he
absented himself from the platform, the conductor was negligent, and the corporation was liable to the plaintiff. 2
Driver killed in avoiding a child straying from school. —A four-year-old boy attending a nursery school under the
management of the appellant council as education authority, strayed from the premises on to a public highway, and
the respondent's husband, who was driving a lorry, struct a telegraph post in avoiding him and was killed. The
respondent sued the council for damages, alleging that the death was caused by their negligence or that of the
teacher who had left the child temporarily unattended. It was held that the appellant council were liable to the
respondent in damages, since the unexplained fact that in the temporary absence of the teacher it was possible for
so young a child to wander from the school premises on to the highway, through a gate which was either open or
very easy for him to open, disclosed negligence on their part. 3
Duty towards visitors.— Contractors reconstructing the front approach to a house in which lived a caretaker and his
wife so obstructed the normal approach that it became impassable. Their workmen suggested to the caretaker's
wife that persons might go in and out of the house by using the fore-court of the house next door, a route involving
danger because it led through a narrow way between bushes and the unfenced sunk area of the house. On a
November evening after dark the respondent, a woman of 71, visiting the caretaker and his wife by invitation, used
that way in on the wife's suggestion. In leaving by the same way, after declining an offer to escort her, she fell into
the area next door sustaining injuries. It was held that the contractors had been negligent and were liable in
damages to the respondent, who, although she was guilty of contributory negligence, did not act unreasonably in
attempting to use the alternative means of egress. 4
Defendent not liable-Riding in cart without permission.— The plaintiff, a person of full age, contracted with the
defendant to carry certain goods for her in his cart. The defendant sent his servant with the cart, and the plaintiff, by
the permission of the servant, but without the defendants authority, rode in the cart with her goods. On the way, the
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cart broke down, and the plaintiff was thrown out and severely injured. It was held that, as the defendant had not
contracted to carry the plaintiff and she had ridden in the cart without his authority, he was not liable for the
personal injury she had sustained. 5
Fall from tram-car.— The plaintiff, in attempting to board a tram-car of the defendant company, which was in
motion, set his foot on the foot-board but failed to get a firm grip of the hand bar; and before he could raise himself
into the car he slipped and fell, and had his toes injured by the wheels of the car. It was held that plaintiff was not
entitled to recover damages as he himself was negligent in trying to get into the car when it was in motion. 6
Injury from runaway horse.— The defendant's horse, by the negligence of the defendant's servant, ran away with a
cart and turned from a highway into the yard of the defendant's house which opened on to the highway. The
plaintiff's wife, who happened to be paying a visit at the defendant's house, ran out into the yard to see what was
the matter, when she was met and knocked down by the horse and cart, receiving serious injuries. It was held that,
as the defendant's servant was not bound to anticipate that the plaintiff's wife would be in the yard, there was no
duty on the part of the defentant, towards the plaintiff's wife, and that the action, therefore, was not maintainable. 7
Injury from falling tree.— The defendants were the occupiers of a building on land adjoining a highway. In the
forecourt of the building was an elm some 130 years of age with a large crown of foliage, which had not been
lopped or trimmed for many years. On a gusty day the tree fell cross the highway, injuring the plaintiffs who were
passing in a motor-car. After it had fallen, it was found that the elm had a disease of the roots which could not be
detected while it was still standing. The fall of the tree was attributed in part to the condition of the roots, and in part
to the crown on the tree, but neither of these causes, by itself, would be likely to account for its fall on the day in
question. In an action by the plaintiffs for damages for negligence or nuisance it was held that whether the claim
was based on negligence or nuisance the plaintiff must establish either that the defendants knew of the danger or
ought to have known of it. The presence of disease being eliminated as an element of danger of which the
defendants were or should have been aware, and the plaintiffs having failed to show that there was something in
the appearance of the tree which should have indicated to the defendants the probability of danger, the claim for
damages was rejected. 8
Injury by cricket ball. —A person, being on a side road of residential houses, was injured by a ball hit by a player on
a cricket ground abutting on that highway. The ground was enclosed on that side by a seven-feet fence, the top of
which, owing to a slope, stood seventeen-feet above the level of the pitch. The wicket from which the ball was hit
was about seventy-eight yards from this fence and one hundred yards from the place where the injury occurred.
There was evidence that while over a period of years balls had been struck over the fence on very rare occasions,
the hit now in question was altogether exceptional. It was held that the members of the club were not liable in
damages to the injured person, whether on the ground of negligence or nuisance. Although the possibility of the ball
being hit on to the highway might reasonably have been foreseen, this was not sufficient to establish negligence,
since the risk of injury to anyone in such a place was so remote that a reasonable person could not have
anticipated it. 9
Theft of motor-bicycle.— The plaintiff went to a public house for refreshment, and before entering it left his motor-
bicycle in a covered yard which formed part of the premises. There was no attendant to look after vehicles left in the
yard, for the use of which no charge was made, nor did the plaintiff inform the publican that he had left his machine
there. Later, on leaving the premises, the plaintiff discovered that the motor-bicycle had been stolen. In an action for
damages against the publican, it was held (1) that, though, the plaintiff was an invitee, the defendant was not in his
capacity of invitor liable for the loss of the motorbicycle, for, though an invitor, when the invitation extends to the
goods as well as to the person of the invitee is under a duty to protect not only the invitee but also his goods from
damage due to defects in the premises, he is under no duty to protect the goods from the risk of theft by third
parties, (2) that, as the motorbicycle had not been delivered into the possession of the defendant, and as the
defendant was unaware that it had been brought on to his premises, he had not become a bailee of it, and was
therefore not liable as a bailee for its loss. 10
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2. STRICT LIABILITY
2(A) Rationale of Strict Liability
There are many activities which are so hazardous that they constitute constant danger to person and property of
others. The law may deal with them in three ways. It may prohibit them altogether. It may allow them to be carried
on for the sake of their social utility but only in accordance with statutory provisions laying down safety measures
and providing for sanctions for non-compliance. It may allow them to be tolerated on condition that they pay their
way regardless of any fault. 11 The last is the doctrine of strict liability. The undertakers of the activities have to
compensate for the damage caused irrespective of any carelessness on their part. The basis of liability is the
foreseeable risk inherent in the very nature of the activities. In this aspect, the principle of strict liability resembles
negligence which is also based on foreseeable harm. But the difference lies in that the concept of negligence
comprehends that the foreseeable harm could be avoided by taking reasonable precautions and so if the defendant
did all that which could be done for avoiding the harm, he cannot be held liable except possibly in those cases
where he should have closed down the undertaking. Such a consideration is not relevant in cases of strict liability
where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking
precautions. The rationale behind strict liability is that the activities coming within its fold are those entailing
extraordinary risk to others, either in the seriousness or the frequency of the harm threatened. “Permission to
conduct such an activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an
appropriate item of its overhead.” 12
2(B)(i) Rule in Rylands v. Fletcher
Strict liability has its origin in the case of Rylands v. Fletcher , 13 where the facts were that the defendants who had
a mill near Ainsworth in Lancashire wanted to improve its water-supply. They constructed a reservoir by employing
reputed engineers to do it. When the reservoir was filled, water flowed down the plaintiff's neighbouring coal mine
causing damage. The engineers were independent contractors. There was some negligence on their part in not
properly sealing disused mine shafts which they had come across during the construction of the reservoir and it was
through those shafts that the water flooded the plaintiff's mine. The defendants were in no way negligent having
employed competent engineers to do the job and as the engineers were independent contractors, the defendants
could not be made vicariously liable for their negligence. The Court of Exchequer dismissed the claim as showing
no cause of action. But the Court of Exchequer Chamber allowed the appeal. The judgment of BLACKBURN, J., of
that Court which laid down a new basis of liability was approved by the House of Lords. The basis of liability was
laid down by BLACKBURN, J. in these words: “The rule of law is that the person who, for his own purpose, brings
on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and
if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.”
14 BLACKBURN, J., further said: “The general rule as above stated seems on principle just. The person whose
grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his
neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made
unhealthy by the fumes and noisome vapours of his neighbour's alkali work is damnified without any fault of his
own; and it seems but reasonable and just that the neighbour, who has brought something on his own property
which was not naturally there, harmless to other so long as it is confined to his own property, but which he knows to
be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does
not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued,
and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the
natural and anticipated consequences.” 15 In the HOUSE OF LORDS, LORD CAIRNS while approving the
judgment of BLACKBURN, J., laid down that the rule applied when there was non-natural user of land. This
qualification was emphasised by the Privy Council in Rickards v. Lothian . 16 In the words of LORD MOULTON in
this case: “It is not every use to which land is put that brings into play this principle. It must be some special use
bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is
proper for the general benefit of the community.” 17 Another qualification of the rule is that the non-natural use by
the defendant should result in “escape” of the thing from his land which causes damage and so in the absence of
Page 20 of 159
“escape”, the rule has no application. This qualification came in the forefront before the HOUSE OF LORDS in
Read v. J. Lyons & Co ., 18 In this case, the defendants undertook the management and control of an Ordnance
Factory where they made high explosive shells for the Government. There was an explosion in the factory in which
the plaintiff and some others employed within the factory were injured. In the plaintiff's claim for damages,
negligence was not alleged nor was it proved during the trial. The case rested on the allegation that the defendants
were manufacturing high explosive shells which they knew to be dangerous things and that the plaintiff suffered
damage when one of the shells exploded. The HOUSE OF LORDS upheld the decision of the Court of Appeal that
in the absence of any proof of negligence no cause of action was made out. It was ruled that the Rule of Rylands v.
Fletcher was conditioned by two elements, viz. the non-natural use of the land by the defendant and the escape
from his land of something which causes damage and that at least the second element was absent in the case. It
was urged before the HOUSE OF LORDS that it would be strange result to hold the defendants liable if the injured
person was just outside their premises but not liable if he was just within them and that escape in the context of the
rule meant escape from control and it was irrelevant where damage took place. These arguments were rejected
though it was observed that they had considerable force on the reasoning that the rule itself was an extension of the
general rule and it was undesirable or there was no logical necessity to extend it further. The case also cast some
doubt on the question whether a person could recover damages for personal injuries on the basis of the rule of
Rylands v. Fletcher .
The rule in Rylands v. Fletcher was again considered by the House of Lords in Cambridge Water Co. Ltd. v.
Eastern Counties Leather Plc . 19 The plaintiff in this case was a company licensed to supply water in the
Cambridge area. The water for supply was taken by borehole extraction from underground strata. The defendant
was another company engaged in manufacture of fine leather. The tanning works of the defendant were at a
distance of 1.3 miles from the plaintiff's borehole. The defendant used a volatile solvent known as perchlorethene
(PCE) for degreasing pelts at its tanning works. PCE seeped into the ground beneath the defendant's works and
thence having been conveyed in percolating water in the direction of the borehole contaminated the water available
from the borehole. The time taken for PCE to seep from the tannery to the borehole was 9 months. The defendant
started using PCE from 1950. PCE was introduced into a tank at the base of dry cleaning machines. Spillage of
PCE in small quantities took place during topped up process upto 1976. It could not then be foreseen that small
quantities of PCE spilled on the concrete floor of the defendant's works will enter the underground strata beneath
the works and will be carried by percolating water to the defendant's borehole 1.3 miles away. Any spillage would
have been expected to evaporate rapidly in the air. The water so contaminated was never held to be dangerous to
health. In 1980 EEC issued directives to the member states relating to the quality of water intended for human
consumption. This directive was implemented in the United Kingdom by legislation in 1985. After 1985 the water
from the borehole ceased to be wholesome and could not be lawfully supplied because of presence of PCE. The
borehole was therefore taken out of commission and the plaintiff claimed damages. The plaintiff's claim for
damages was essentially based on nuisance and strict liability rule in Rylands v. Fletcher . The claim was negatived
on the ground that damage of the nature suffered by the plaintiff was not foreseeable. The House of Lords affirmed
the rule laid down by the Privy Council in Wagon Mound No. (2) that foreseeability of damage is essential to
establish a claim for damages in nuisance. 20 Further, the House of Lords held that irrespective of whether the rule
in Rylands v. Fletcher was treated as an aspect of nuisance or as a special rule of strict liability, it was appropriate
to take the view that foreseeability of damage of the relevant type should be regarded as a prerequisite of liability in
damages under the rule. 21 It appears that PCE that was spilled till 1976 was still in existence in the substrata
below the defendant's works when the claim was filed and was being tried and the escape of PCE was continuing
to the borehole. It was, therefore, argued that since the escape of PCE was continuing even after it has become
known, the defendant could be made liable either in nuisance or under the strict liability rule in Rylands v. Fletcher .
This argument was not accepted on the reasoning that the PCE was irretrievably lost in the ground below beyond
the defendant's control long before the enforcement of relevant legislation making it unlawful to supply water
contaminated with PCE from the borehole and long before it became known that PCE was being carried from the
defendant's works to the borehole by underground percolating water. This was held to be a case of historical
pollution for which the defendant could not be made liable. 22 The House of Lords, however, held that storage of
substantial quantities of chemicals on industrial premises should be regarded as a classic case of non-natural use
and there could be no objection in imposing strict liability for foreseeable damage caused in the event of their
escape. 23
Page 21 of 159
The rule in Ryland v. Fletcher was more recently considered by the House of Lords in Transco plc v. Stockport
MBC . 24 The plaintiff in this case had installed a gas main along an embankment on a stretch of a disused railway
line. The defendant local authority later purchased the line with the plaintiff continuing to have the right of support
from the embankment for its main. On a nearby site owned by the defendant lay a tower block of flats which was
supplied with water by means of water pipe which the defendant had constructed between the tower block and the
water main. Without any negligence of the defendant the water pipe which supplied water to the flats fractured and
discharged considerable quantities of water leading to the collapse of the embankment. The plaintiff was compelled
to do considerable work to remedy the situation and claimed damages on the basis of the rule in Ryland v. Fletcher
. The House of Lords in negativing the claim held that the provision of a water supply to a large block of flats did not
amount to a special hazard constituting an extraordinary use of land. But the House of Lords did not accept the
submission that the rule had no relevance in the 21st Century and should be abolished as done in Australia. 25
They expressed the view that it only needed clarification.
As clarified in Transco the rule was a sub-species of nuisance. The rule required that an occupier of land had
brought on to his land or was keeping there some dangerous thing which posed an exceptionally high risk to
neighbouring property should it escape and which amounted to an extraordinary and unusual use of the land
judged by the standards appropriate at the relevant place and time and that there had been escape, on to some
other property causing damage which was a foreseeable consequence of the escape. The rule has no application
when the defendant acts under statutory authority or when the escape is as a result of Act of God or because of the
intervention of a third party. The case also supports the doubt which was expressed in Read v. J. Lyans & Co ., 26
that the rule is not concerned with liability for personal injuries and holds that the doubt is now settled and the rule
being a species of nuisance does not apply for recovery of damages for personal injuries. 27
The above discussion of authorities leads to the conclusion 28 that if the defendant makes ‘non-natural use’ of land
in his occupation in the course of which there is escape of something which causes foreseeable damage to person
or property outside the defendant's premises, the defendant is liable irrespective of any question of negligence on
the basis of the rule of strict liability propounded in Rylands v. Fletcher . It is difficult to define the expression “non-
natural use” except to say what was said in Rickards v. Lothian 29 that it must be some special use bringing with it
into play increased damage to others and must not be merely the ordinary use of the land. The concept of non-
natural use is flexible. A particular use which was non-natural a century back may be quite natural now.
Considerations of time, place, surroundings, circumstances and purpose all enter in the determination of the
question whether a particular use is natural or non-natural. The requirement of “escape” which was stressed most
emphatically in the case of Read v. Lyons , 30 brings about an unfortunate and illogical distinction between the
persons injured inside and those just outside the dangerous premises. It has halted the development of the general
theory of liability in the English law in contrast to American law where the rule is stated to be that “one who comes
on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognise as likely
to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the
activitiy ultrahazardous, although the utmost care is exercised to prevent the harm.” 31 The House of Lords in
Cambridge Water Co.’s case 32 took notice of the above criticism but declined to extend the strict liability rule
observing that it is more appropriate for strict liability in respect of operations of high risk to be imposed by
Parliament than by courts. 33 The rule being a species of nuisance does not apply for recovery of damages for
personal injuries. 34
In India the rule has been considered by the Supreme Court in some cases and applied to personal injuries. It has
even been extended to cover accidents arising out of use of motor vehicles on the road.
In State of Punjab v. Modern Cultivators 35 where damage was cuased by overflow of water from a breach in a
canal the Supreme Court held that use of land for construction of a canal system is an ordinary use and not a non
natural use. The case was decided in favour of the plaintiff on the finding of negligence. This case does not modify
the rule of Rylands v. Fletcher. It was so held in Jay Laxmi Salt Works (P.) Ltd. v. State of Gujarat 36 which was a
case of damage caused by overflow of water from a reclamation bundh constructed by the State of Gujarat for
reclamation of vast area of land from saltish water of sea. This case too was decided not on the reasoning that this
was non natural use of land but on the basis of violation of public duty and negligence which lay in defective
planning and construction of the bundh. The rule of Rylands v. Fletcher was again referred to in Indian Council for
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Enviro Legal Act ion v. Union of India , 37 but the case was decided on the Mehta principle of strict liability which
was held to have laid down an appropriate principle suited to our country, apart from being of binding authority.
The strict liability rule in Rylands v. Fletcher has, however, been extended recently by the Supreme Court in
Kusuma Begum (Smt.) v. The New India Assurance Co. Ltd., 38 by relying on some general obiter observation in
Gujarat SRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 [LNIND 1987 SC 472], to apply to accidents arising
out of use of motor vehicles on the road, in addition to no fault liability statutorily provided in the Motor Vehicles Act,
without the necessity of establishing any negligence on the part of the driver of the motor vehicle causing the
accident. The accident in this case arose on capsizing of a jeep due to tyreburst when the Motor Vehicles Act 1939
was in force and the dependants of the victim could have been allowed only Rs. 15000 as compensation on no fault
basis under section 92A of the Act unless they proved negligence. The case was, however, decided when the
Motor Vehicles Act, 1988 had come into force. The tribunal negatived negligence but allowed Rs. 50,000 as
compensation on no fault basis under the corresponding provision viz., section 140 of the new Act. The claimants
went in appeal to the High Court where they lost and, therefore, they went up in further appeal to the Supreme
Court. In 1994 another provision Section 136A was added in the Motor Vehicles Act which also provides
compensation on no fault basis but on quite liberal terms in accordance with the structural formula given in the
second schedule in cases where the annual income of the deceased was upto Rs. 40,000. It would have been too
much to apply that provision directly to an accident which took place even before the 1988 Act was enacted. But it
seems the Supreme Court was not satisfied with the quantum of compensation of Rs. 50,000 allowed to the
dependants and it had to find out some basis for enhancing the compensation. That is probably the inarticulate
reason for extending the rule of Rylands v. Fletcher to motor accidents. In this way the dependents were allowed
Rs. 1,18,000 as compensation which could have been allowed to them under section 163A had it been applicable.
In view of this decision a claimant can claim compensation on no fault liability under section 140 or section 163A of
the Act or under the rule of strict liability of Rylands v. Fletcher. After introduction of section 163A which provides for
compensation on liberal terms, it is hardly likely that any claim would be filed (where the deceased's annual income
was upto Rs. 40,000) under the strict liability rule of Rylands v. Fletcher, where certain defences would be open
which are not open to a claim under section 140, or section 163A. Use of a motor vehicle on the road cannot be
said to be in modern times non-natural use of either the vehicle or the road and a motor vehicle causing the
accident on the road cannot also be said to have escaped from land or premises in occupation of the owner of the
motor vehicle. It is, therefore, difficult to see how the conditions for applicability of the rule of Rylands v. Fletcher are
satisfied in case of an accident arising out of the use of a motor vehicle on the road. Instead of extending the rule of
Rylands v. Fletcher to cover the case treating it to be a case of no negligence, it would have been easier to apply
the rule of res ipsa loquitur and raise the presumption of negligence as was done in Barkway v. South Wales
Transport Co. Ltd., [(1948) 2 All ER 460 ] which was also a case of tyreburst and which was approvingly referred in
Krishna Bus Service v. Mangoli. 39 A reading of a Three Judge Bench judgment in Deepal Girishbhai Soni v.
United Insurance Co. Ltd . 40 shows that apart from sections 140, 163A of the M.V. Act or any other statutory
provision, the claim for compensation can be only on the ground of fault. “ Section 166 of the M.V. Act “the court
said provides for “a complete machinery for laying the claim on fault liability.” The case of Deepal Girishbhai Soni
was followed by a two judge bench of the Supreme Court in Oriental Insurance Co. Ltd. v. Premlata Shukla C.A.
2526 of 2007 decided on 15-5-2007 [2007-3 M.P.H.T. 225 (S.C.)] where it was held (para 10): “Proof of rashness
and negligence on the part of the driver of the vehicle is therefore sine-quanon for maintaining an application under
section 166 of the Act.” It is submitted that the case of Kusuma Begum requires reconsideration.
The principle of Rylands v. Fletcher applies to a proprietor who stores electricity on his land if it escapes therefrom
and injures a person or the ordinary use of property. It does not apply to the case of injury done to a peculiar trade
apparatus unnecessarily so constructed as to be affected by minute currents of the escaping force. 41 The
Supreme Court applied the strict liability rule of Rylands v. Fletcher against the Madhya Pradesh Electricity Board in
a case where a cyclist was electrocuted by a live electric wire lying on the road. 42 The court also held that the
defence that the live wire was lying on the road due to clandestine pilferage of a stranger could not be availed of by
the Board to negate its strict liability. 43 The Board has statutory authority to transmit electricity, therefore, it is
submitted that the case should have been more appropriately decided on the basis of negligence which was held to
exist. 44 The court in Sushil Kumar's case relied upon a Privy Council decision 45 which was decided essentially
on the interpretation of Articles 1053 and 1054 of the Quebe code 46 and not on the principle of Rylands v.
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Fletcher . Indeed, their Lordships said that in construing these Articles of the Code “ Rylands v. Fletcher and
Nicholas v. Marsland have better be left out of account.” 47 Sushil Kumar's case was distinguished in SDO Grid
Corporation of Orissa Ltd. v. Timiduoram 48 on the ground that there was a finding of negligence in that case
which was tried as a suit. Timiduoram holds that when the fact of negligence is denied, the claim should never be
entertained in a writ petition and should be left to be tried in a civil suit. The court clearly held that “the mere fact
that the wire of electric transmission line belonging to the appellants had snapped and the deceased had come into
contact with it and died by itself was not sufficient for awarding compensation. The court was required to examine
as to whether the wire had snapped as a result of any negligence on the part of the appellants as a result of which
the deceased had come in contact with the wire.” 49 It is submitted that the case of Sushil Kumar requires
reconsideration. The use of electric energy for lighting or other domestic purposes is so reasonable and prevalent
that to bring electricity upon land or premises for such purposes is to use the land or premises in a natural and not
an unnatural way. A person who keeps on his premises electric energy for domestic purposes is bound to exercise
reasonable care to prevent damage therefrom accruing, but he is not responsible for damage not due to his own
default. 50
More English and Indian cases relating to Rylands v. Fletcher
The principle of Rylands v. Fletcher was held to apply where a company stored in close proximity nitrate of soda
and dinitrophenol for the purpose of making munitions for Government, with the result that on a fire breaking out
they exploded with terrific voilence causing loss of life and serious damage to adjoining property. 51 Similarly
where the defendants drove a very large number of piles into the soil, thereby setting up such heavy vibrations as to
cause serious structural damage to an old house belonging to the plaintiffs, with the result that the greater part had
to be taken down in compliance with a dangerous structure notice, it was held that the defendants were responsible
as insurers for all damages caused by the escape of the vibrations, they had so created. 52
Under the principle of Rylands v. Fletcher , a person who brings dangerous substances upon premises and carries
on a dangerous trade with them is liable if, though without negligence on his part, these substances cause injury to
persons or property in their neighbourhood. 53 It is immaterial whether he is or is not aware of the danger at the
time when he brings and uses them. Thus a tramway company was held liable for using wood-blocks coated with
creosote which gave off fumes which injured plants and shrubs of the plaintiff whose premises were near the road.
54 This liability exists whether the land is or is not owned by the person responsible for the bringing upon it and use
of the dangerous substances. 55
If a man brings on to his premises a dangerous thing which is liable to cause fire, such as a motor-car with petrol in
it, the carburettor of which is not unlikely to get on fire when the engine is started, and a fire results and escapes
causing damage to adjoining property, though without any negligence on his part, he is liable, for the rule is that he
must keep such a thing under control at his peril. 56 The dangerous thing which is liable to cause fire should have
been brought by the defendant on his premises in the course of some non-natural user. 57 If a person uses a
traction engine which emits sparks in spite of all precautions being taken to prevent their emission, he will be liable
if another person's hayrick be set on fire by the sparks, upon the ground that such an engine is a dangerous
machine. 58
The principle of Rylands v. Fletcher is followed in several Indian cases. 59
The rule in Rylands v. Fletcher applies only if the defendant brings or accumulates on his own land something that
is likely to escape and do mischief, irrespective of the question whether that was done by the defendant wilfully or
negligently. 60
An ability to foresee indirect or economic loss to another person as the result of the defendant's conduct does not
automatically impose on the defendant a duty to take care to avoid that loss. 61
Water.— The defendant in erecting a house put down pipes to convey water from the roof, but did not connect them
with any drain. The water came through the pipes into the cellar of the house, collected there into a pool and flowed
from there into the cellar of the adjoining house of the plaintiff, which was on a lower level: it was held that the
plaintiff was entitled to damages in respect of the injuries caused thereby. 62
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By reason of an unprecedented rainfall a quantity of water was accumulated against one of the sides of the
defendants’ railway embankment, to such an extent as to endanger the embankment, when, in order to protect their
embankment, the defendant cut trenches in it by which the water flowed through, and went ultimately on to the land
of the plaintiff which was on the opposite side of the embankment and at a lower level, and flooded and injured it to
a greater extent than it would have done had the trenches not been cut. In an action for damages for such injury the
Jury found that the cutting of the trenches was reasonably necessary for the protection of the defendants’ property
and that it was not done negligently. It was held that though the defendants had not brought the water on theirland,
they had no right to protect their property by transferring the mischief from their own land to that of the plaintiff, and
that they were therefore liable. 63
When a person constructs a dam on his land which has the effect of diverting the water from its natural channel on
to the land of a neighbour and damage to the neighbour's property results, he is liable to his neighbour. An owner of
property has no right to let off water which has naturally accumulated therein even for the purpose of its
preservation from damage therefrom if this will have the effect of transferring his misfortune to the property of
another. 64
The plaintiffs were the owners of electric cables which had been laid under certain public streets; defendants were
the owners of hydraulic mains which had been laid under the same streets. These mains burst in four different
places, in each case damaging the plaintiff's cables. The bursting of the mains was not due to any negligence on
the part of the defendants. It was held that the defendants were liable although the site of the plaintiff's injury was
occupied by them only under a licence and not under any right of property in the soil. 65
A municipal authority, in laying out a park, constructed a concrete paddling pond for children in the bed of a stream,
altered the course of the stream and obstructed the natural flow of water therefrom. Owing to a rainfall of
extraordinary violence the stream overflowed at the pond, and, as the result of the operations of the authority, a
great volume of water, which would have been carried off by the stream in its natural course without mischief,
poured down a public street into the town and damaged the property of two railway companies. It was held that the
extraordinary rainfall was not an act of God which absolved the authority from responsibility, and that they were
liable in damages to the railway companies. 66
Where water coming through two natural channels in the plaintiff's land had accumulated in the agal portion of the
defendant's tank and the latter in order to get rid of the consequences of that injury to his land got constructed an
embankment with a view to transfer that water to the land of the plaintiff, it was held that it was not open to the
defendant to erect such an embankment. 67
Injury caused by bee-hives.— Plaintiff and defendant resided on adjacent farms. The defendant kept a number of
beehives. The bees swarming from these hives frequently caused annoyance to the inhabitants of the neighbouring
farm. One day the defendant, for removing honey, smoked the hives with a ’smoker’ without warning the plaintiff
who was tackling his horse. The bees, irritated by the smoking operation, swarmed upon the plaintiff and his horse.
The horse dragged the plaintiff and threw him violently against a wall, causing him severe injuries. It was held that
the defendant was liable. 68
Damage by rats to adjoining owner.— The defendants carried on the business of bone manure manufacturers on
premises near the plaintiff's farm. For the purpose of their business they had on their premises a heap of bones,
which caused large number of rats to assemble there. The rats made their way from the defendants’ premises on to
the plaintiff's land, and ate his corn, causing substantial loss, in respect of which the plaintiff claimed damages from
the defendants. It was held that no cause of action was established against the defendants. 69
Eating of yew tree leaves by horse. —The defendants planted on their own land, but so close to the boundary, as to
project into the adjoining meadow in the occupation of the plaintiff, a yew tree, and the plaintiff's horse whilst
feeding in the meadow ate off the portion of the tree which projected and died in consequence, it was held that the
defendants were liable for the value of the horse. 70 But if the poisonous leaves had not extended to the
defendant's neighbour's boundary, he would not have been liable; for his legal duty to his neighbour stopped with
his boundary, within which he was free to do or grow whatever he wished so long as the boundary was not
overpassed. Thus, where the plaintiff's horse ate off the branches of a yew tree no part of which extended over his
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field, and the defendants were under no liability to fence against the plaintiff, it was held that they were not liable
since they owed no duty of care in respect of trespassing animals. 71
Swallowing of pieces of iron rope by cow.— The defendands’ land adjoining the plaintiff's was fenced by a wire rope
repaired by them. Through exposure the rope decayed and pieces of it fell on the grass on the plaintiff's land,
whose cow in grazing swallowed one of the pieces, and died in consequence. The defendants were held liable to
the plaintiff for the loss of the cow. 72
Allowing thistles to grow. —Where an occupier of land allowed thistles, which he had not brought on to his land, but
which were its natural produce, to seed, so that the seed was carried on to the adjoining land which was thereby
injured it was held that no action lay for the damage caused thereby. 73
Injury by chair detached from chair-o-plane.— The plaintiff was tenant of a stand on a fair-ground belonging to the
defendants. While she was on her stand, a chair, with its occupant, became detached from a chair-o-plane, the
property of and operated by the defendants, and severely injured the plaintiff. It was found as a fact that the action
was due to the recklessness of the occupant of the chair. It was held that the defendants were liable without proof
of negligence on their part. 74
Escape of virus : Loss of business.— In consequence of the escape of a virus imported by the defendants and used
by them for experimental work of foot and mouth disease on premises owned and occupied by them, cattle in the
vicinity of the premises became infected with the disease. Accordingly an order was made under statutory power
closing cattle markets in the district, with the result that the plaintiffs, who were auctioneers, were unable to carry on
their business on those markets and suffered loss. On the question whether an action by the plaintiffs for damages
for the loss was sustainable, it was held that the defendants were not liable in negligence, because their duty to
take care to avoid the escape of the virus was due to the foreseeable fact that the virus might infect cattle in the
neighbourhood and thus was owed to owners of cattle, but, as the plaintiffs were not the owners of cattle, no such
duty was owed to them by the defendants and that the plaintiffs were not also entitled to recover under the rule in
Rylands v. Fletcher because they had no interest in the cattle endangered by the escape of the virus and loss to the
plaintiffs was not a sufficiently proximate and direct consequence of the escape of the virus. 75
2(B)(ii) Exceptions to the rule in Rylands v. Fletcher
The judgment of BLACKBURN, J., approved by the House of Lords in Rylands v. Fletcher itself recognised that the
liability is not absolute being subject to certain exceptions. BLACKBURN, J. made it a part of the rule that “he (the
defendant) can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the
escape was the consequence of vis major , or the act of God.” 76 In the light of that passage, a person is not liable
if the damage is owing to the following causes: 77
1 Act of God (vis major) , which is defined to be such a direct violent, sudden, and irresistible act of nature as
could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human
care and skill have been resisted. 78 Thus those acts which are occasioned by the elementary forces of
nature, unconnected with the agency of man or other cause will come under the category of acts of God,
79 e.g. , storm, tempest, 80 lightning, extraordinary fall of rain, 81 extraordinary high tide, 82
extraordinary severe frost, 83 or a tidal bore which sweeps a ship in midwater. 84 In order that a
phenomenon should fall within the operation of the rule of law with regard to the act of God, it is not
necessary that it should be unique, that it should happen for the first time; it is enough that it is
extraordinary, and such as could not reasonably be anticipated. 85
The phrase vis major imports something abnormal and with reference to the context means that the
property by the act of God has been rendered useless, for the time being, that is to say, it was rendered
incapable of any enjoyment. 86
Vis major, to afford a defence, must be the proximate cause, the causa causans, and not merely a causa
sine qua non of the damage complained of. The mere fact that vis major co-existed with or followed on the
negligence is no adequate defence. Before an act of God may be admitted as an excuse, the defendant
must himself have done all that he is bound to do. 87
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The defendant in Nicholas v. Marsland , 88 had a series of artificial lakes on his land, in the construction or
maintenance of which there had been no negligence. Owing to a most unusual fall of rain, so great that it
could not have been reasonably anticipated, some of the reservoirs burst and carried away four country
bridges. It was held that the defendant was not liable, inasmuch as the water escaped by the act of God.
Similarly, a water-company whose apparatus was constructed with reasonable care, and to withstand
ordinary frost, was held not liable for the bursting of the pipe by an extraordinarily severe frost. 89 But
Nicholas v. Karsland was criticised by the HOUSE OF LORDS in Greenock Corporation v. Caledonian
Railway . 90 In this case the Corporation obstructed and altered the course of a stream by constructing a
concrete paddling pool for children. Due to a rainfall of extraordinary violence a great volume of water which
would normally have been carried off by the stream overflowed the pad and caused damage to plaintiff's
property. It was held that the rainfall was not an act of God and the Corporation was liable as it was their
duty “so to work as to make proprietors or occupiers on a lower level as secure against injury as they would
have been had nature not been interfered with.” 91 The Supreme Court in another context said that before
heavy rain can be accepted as a defence for the collapse of a culvert the defendant must indicate what
anticipatory preventive action was taken. 92
Injury by snow.— Owing to extraordinarily severe snow-storms, snow and ice had accumulated on the roof
of the defendant's premises. No steps were taken to remove the snow or to warn the public of its presence.
The plaintiff, while standing on the pavement outside the premises and looking through the window of the
defendant's shop, was injured by a fall of snow which had accumulated on the roof. The snow could have
been removed from the roof but this was not done. She claimed damages, alleging nuisance, or,
alternatively, negligence. It was held that the accumulation of snow constituted a public nuisance of which,
in view of the severity of the storms, the defendants must be deemed to have had knowledge; that there
was a duty on the part of the defendants to safeguard members of the public using the pavement from the
danger occasioned by the snow; and that as they failed to abate the nuisance they were liable both in
nuisance and in negligence and that the plea that the storms were an act of God was no defence as it was
the snow, and not the storms, which directly caused the injury. 93
Damage by water .—A State Government erected a reservoir adjoining the plaintiff's land in order to
provide drinking water facilities to a village in the State. The State acquired a part of the plaintiffs land for
the purpose of constructing a channel for carrying the overflow of water from the reservoir to a Nalla which
was at a distance of about 1500 feet from the waste-weir of the reservoir. This channel was however not
constructed except to the extent of 250 feet on the side of the Nalla. Due to very heavy rainfall the water
from the reservoir overflowed into the waste-weir and thereafter flowed over the plaintiffs land, causing
considerable damage to the land and the crops standing thereon. In a suit by the plaintiffs for damages they
alleged that due to the negligence of the State in not taking proper precautions to guard against the
overflow of water they had sustained the loss. The State inter alia contended that the loss was due to heavy
rain which was an act of God and therefore they were not liable and further that the construction of the
reservoir was an act of the State in the sovereign capacity and, therefore, it was not liable for the tortious or
negligent acts of its servants. It was held that the fact that the danger materialised subsequently by an act
of God was not a matter which absolved the State from its liability for the earlier negligence in that no
proper channel for the flow or overflow of water from the wasteweir was constructed by it in time; that the
act of the State in constructing the reservoir for the supply of drinking water to its citizens at best could be
considered a welfare act and not an act in its capacity as a sovereign; and that, therefore, the State was
liable in negligence for the loss caused to the plaintiff. 1
2 Wrongful act of a third party. 2 A landlord using his premises in an ordinary and proper manner is bound to
exercise all reasonable care, but he is not responsible for damage not due to his own default, whether that
damage be caused by inevitable accident or wrongful acts of third persons. 3
Though the act of a third party may be relied on by way of defence, the defendant may still be held liable in
negligence if he failed in foreseeing and guarding against the consequences to his works of that third
party's act. 4
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Where the reservoir of the defendant was caused to overflow by a third party sending a great quantity of
water down the drain which supplied it, and damage was done to the plaintiff, it was held that the defendant
was not liable. 5
Plaintiff's hotel was destroyed by a fire caused by the escape and ignition of natural gas which percolated
through the soil and penetrated into the hotel basement from a fractured welded joint in a main, under the
street, belonging to the defendants. The cause of the break in the welded joint through which the gas
leaked was due to operations caused by the local authority in constructing a storm sewer beneath the main.
It was held that as the defendants were carrying gas at high pressure which was very dangerous, if it
should escape, they owed a duty to the owners of the hotel, to exercise reasonable care and skill that the
owners should not be damaged; that the local authority might at any time be conducting operations in
connection with their sewers in the vicinity of defendants’ mains, and it was the duty of the defendants to
watch such operation; and that a failure by the defendants to know of them was not consistent with due
care on their part in the interests of members of the public likely to be affected. 6 In an action for damage
to property located on the second floor of a building leased to the defendant, through a continuous overflow
of water from a lavatory basin on the top floor caused by the water tap having been turned on full and the
water-pipe plugged by some third person, it was held that the defendant was not responsible unless he
instigated the act or unless he ought to have prevented it; and that although he was bound to exercise all
reasonable care he was not responsible for damage not due to his own default, whether caused by
inevitable accident or the wrongful act of third persons. 7
3 Plaintiff's own default . 8 The plaintiff and defendant occupied adjoining farms, which they rented from the
same landlord. A fence upon the plaintiff's farm which, under his agreement of tenancy, he was liable, as
between himself and the landlord, to keep and have in good repair, and which divided the farms, became
out of repair, with the result that two of the defendant's horses escaped from a field forming part of the farm
occupied by him into a field forming part of the farm occupied by the plaintiff and injured a colt belonging to
him. The defendant had entered into an agreement with the landlord, in terms similar to that of the plaintiff,
to keep in repair the fences on his holding. It was held that the defendant was liable to the plaintiff in
damages for the injuries caused to the plaintiff's colt, inasmuch as the general principle that owners of
animals must keep them upon their land at their peril applied, and the mere fact that the plaintiff had
committed a breach of the obligation he was under as between himself and the landlord to repair the fence,
was not enough to bring the case within the exception of damage caused by the plaintiff's own default. 9
4 Artificial work maintained for the common benefit of plaintiff and defendant , 10 or with the consent of the
plaintiff. 11 Where the plaintiff and the defendant occupy parts of the same building, whether it be two
floors of a warehouse, two sets of offices, or two flats, and water which is laid on to the building escapes
and does damage, the person from whose part the escape takes place is not liable in the absence of
negligence. The reason for the escape is immaterial as long as the exercise of reasonable care would not
have prevented it. 12
Gnawing of rain-water box.— The defendant was the plaintiff's landlord and was living on the floor above
him. Some rats gnawed a rain-water box maintained by the defendant for the benefit both of himself and
the plaintiff, and the water running through injured plaintiff's goods below; it was held that no action lay. 13
Leakage of cistern .—The defendant was the owner of premises to which water was laid on, and he had a
cistern on the fourth floor. The plaintiff became tenant of the ground floor, and took his supply of water from
the defendant. A leakage from the cistern having been noticed by the plaintiff, he informed the defendant,
who instructed a competent plumber to remedy it. In consequence of the negligence of the plumber an
overflow occurred, which damaged the plaintiff's goods. It was held that the defendant was not liable since
the plaintiff had assented to the water being on the premises, and therefore the defendant, by instructing a
competent plumber to remedy the leakage, had discharged his duty to the plaintiff. 14
5 When it is the consequence of an act done under the authority of a statute . 15 “No action will lie for doing
that which the legislature has authorized, if it be done without negligence, although it does occasion
damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done
negligently. And....if by a reasonable exercise of the powers,.....the damage could be prevented, it is, within
Page 28 of 159
this rule, ‘negligence’ not to make such reasonable exercise of their powers.” 16 The statute must
authorise the use of the dangerous thing either expressly or by necessary implication. This exception to the
rule in Rylands v. Fletcher has recently been affirmed by the House of Lords in Transco plc. v. Stockport.
17
2(C) Rule in M.C. Mehta v. Union of India
A more stringent rule of strict liability than the rule in Rylands v. Fletcher was laid down by the Supreme Court
recently in the case of M.C. Mehta v. Union of India . 18 The case related to the harm caused by escape of Oleum
gas from one of the units of Shriram Foods and Fertiliser Industries. The Court held that the rule of Rylands v.
Fletcher which was evolved in the 19th century did not fully meet the needs of a modern industrial society with
highly developed scientific knowledge and technology where hazardous or inherently dangerous industries were
necessary to be carried on as part of the development programme and that it was necessary to lay down a new rule
not yet recognised by English law, to adequately deal with the problems arising in a highly industrialised economy.
The Court laid down the rule as follows: “Where an enterprise is engaged in a hazardous or inherently dangerous
activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and such liability is not subject to any of the exceptions
which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher . 19 The Court
earlier pointed out that this duty is “absolute and non-delegable” and the enterprise cannot escape liability by
showing that it had taken all reasonable care and there was no negligence on its part. The bases of the new rule as
indicated by the Supreme Court are two: (1) If an enterprise is permitted to carry on an hazardous or inherently
dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise
absorbing the cost of any accident (including indemnification of all those who suffer harm in the accident) arising on
account of such hazardous or inherently dangerous activity as an appropriate item of its overheads; and (2) The
enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against
potential hazards.
The rule in Rylands v. Fletcher requires non-natural use of land by the defendant and escape from his land of the
thing which causes damage. The rule in M. C. Mehta v. Union of India is not dependant on these conditions. The
necessary requirements for applicability of the new rule are that the defendant is engaged in a hazardous or
inherently dangerous activity and that harm results to anyone on account of an accident in the operation of such
hazardous or inherently dangerous activity. The rule in Rylands v. Fletcher will not cover cases of harm to persons
within the premises for the rule requires escape of the thing which causes harm from the premises. The new rule
makes no such distinction between persons within the premises where the enterprise is carried on and persons
outside the premises for escape of the thing causing harm from the premises is not a necessary condition for the
applicability of the rule. Further, the rule in Rylands v. Fletcher though strict in the sense that it is not dependent on
any negligence on the part of the defendant and in this respect similar to the new rule, is not absolute as it is
subject to many exceptions 20 but the new rule in Mehta case is not only strict but absolute and is subject to no
exception. Another important point of distinction between the two rules is in the matter of award of damages.
Damages awardable where the rule in Rylands v. Fletcher applies will be ordinary or compensatory; but in cases
where the rule applicable is that laid down in M.C. Mehta's case the Court can allow exemplary damages and the
larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it. 21 But
in Charan Lal Sahu v. Union of India , 22 doubts were expressed as to correctness of this view as to damages by
MISRA C.J. that the view taken in Mehta case was obiter and was a departure from the law applied in western
countries. But doubts expressed by MISRA C.J. have not been accepted in Indian Council for Enviro Legal Act ion
v. Union of India 23 and it was held that the rule laid down in Mehta case was not obiter and was appropriate and
suited to the conditions prevailing in our country. This was a case where hazardous chemical industries had
released highly toxic sludge and toxic untreated waste water which had percolated deep into the soil rendering the
soil unfit for cultivation and water unfit for irrigation, human or animal consumption resulting in untold misery to the
villagers of surrounding areas.
A Division Bench of the M.P. High Court 24 has applied the rule of M.C. Mehta v. Union of India (p.503) against the
M.P. Electricity Board although there was also finding of negligence against the Board. It is extremely doubtful if the
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rule in M.C. Mehta can be applied to transmission of electricity. M.C. Mehta related to escape of oleum gas and was
applied in Charan Lal Sahu where there was escape of MIC gas. These gases were highly toxic gases. The
transmission of Electricity is not that hazardous. Moreover, there appears to be no statutory authority to support the
manufacture of obum gas or MIC. It is still a question open for decision of the Supreme Court if M.C. Mehta rule
applies when there is statutory authority to carry out the hazardous industry. The Supreme Court has so far not
applied this rule to transmission of Electricity or in a case where there is statutory authority to support the activity.
A two Judge bench of the Supreme Court, however in a case arising under section 124A of the Railway Act which
provides for strict liability has made obiter observations to the effect: “Apart from the principle of strict liability in
section 124A of the Railway Act and other statutes, we can and should develop the law of strict liability dehors
statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta case. 25
Mention must also be made of the Public Liability Insurance Act, 1991 which is an important legislation to promptly
compensate members of the public from accidents arising out of hazardous industries. As the long title discloses,
this is an Act to provide for public liability insurance for the purpose of providing immediate relief to the persons
affected by accident occurring while handling any hazardous substance. Section 3 of the Act provides for liability on
no fault basis to the extent mentioned in the schedule in case of death or injury resulting from an accident while
handling any harzardous substance. Hazardous substance is defined in section 2 (d) to mean any substance or
preparation which is defined as hazardous under the Environment (Protection) Act, 1986 and exceeding such
quantity as may be specified, by notification, by the Central Government. The liability is on the owner and in favour
of any person other than workmen for they are already protected under Workmen's Compensation Act, 1923. It is
the duty of the owner to insure himself against liability created by section 3 of the Act. The extent of liability in case
of death or total permanent disablement is Rs. 25,000 and in case of permanent partial disability is on the basis of
the percentage of disability as certified by an authorised physician. Further, there is provision for reimbursement of
medical expenses upto Rs. 12,500 and relief for loss of wages not exceeding Rs. 1,000 p.m. due to temporary
partial disability for a maximum period of 3 months. Compensation for damage to property can also be claimed upto
Rs. 6,000. The liability to pay relief under the Act does not take away the right of the victim or his dependants to
claim higher compensation under any other law but the amount of such compensation shall be reduced by the
amount of relief paid under the Act. The liability created by the Act thus does not in any way affect the liability under
the tort law except to the extent of the amount of relief paid under the Act.
3. OCCUPIERS OF PREMISES
3(A) Introduction and the Occupiers Liability Act, 1957
By the expression ‘Premises’ in the context of this topic is meant not only land and buildings but also vehicles,
railway carriages, scaffolding and the like. The expression thus includes certain type of movable properties the
distinguishing features of which, speaking generally, under the present topic is that the defendant remains in control
of them and the plaintiff suffers injury by entering into them. The liability of occupiers of premises except in relation
to trespassers is now governed under the English law by the Occupiers Liability Act, 1957 which was enacted as a
result of the report of a Law Reform Committee in 1952. The liability towards trespassers has also undergone
considerable change by a liberal judicial approach in recent years and later by the Occupiers Liability Act, 1984.
Before the 1957 Act, the liability of an occupier varied according to the class to which the person coming on his
premises belonged. Such persons were placed in four different classes, viz. (i) Person entering under a contract, (ii)
Invitee i.e. a person who (without any contract) entered for the purpose of the occupier's business or for a business
in which both were interested, e.g. a customer in a shop; (iii) Licensee, i.e. a person who entered with the
occupier's permission, express or implied, for a business in which he alone had interest, e.g. a guest at a dinner
and (iv) Trespassers. The duty of care which an occupier owed to these persons varied in a descending order, the
highest being owed to a person entering under a contract and the lowest to a trespasser. When a person entered
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under a contract, the terms of the contract providing for the nature of the duty governed the parties. But in the
absence of any specific term in the contract regulating the duty of care the Court implied certain terms. Where the
essential purpose of the contract was use of the premises, it was implied that there was a warranty by the occupier
that the premises were as safe as reasonable care and skill could make them; but where the use of the premises
was ancillary to the main purpose of the contract, the warranty implied was that the occupier had taken reasonable
care to see that the structure was reasonably safe. 26 In the case of an invitee, i.e. a person entering without a
contract but for the purpose of the occupier or for a purpose in which both had interest, the occupier's duty was “to
use reasonable care to prevent damage from unusual danger, which he knows or ought to know.” 27 In contrast as
against a licensee, i.e. a person entering only for his own purpose with the express or implied permission, the
occupier's duty was to warn him of any concealed danger of which he actually knew. So far as trespassers are
concerned, the only duty that the occupier owed was not to injure him deliberately or recklessly; the more humane
approach that the Courts have in recent years made in favour of trespassers will be considered later.
The Courts tried to mitigate the rigour of the law by applying ordinary principles of negligence if the injury was
caused in the course of operation of some activity carried on by the occupier. 28 The classification of entrants and
difference in the duty owed by an occupant in respect of them in practice gave rise to unrealistic distinctions and
capricious results. As earlier stated, the dissatisfaction from this state of the law led to the reform in England by the
Occupiers’ Liability Act, 1957 introducing a common duty of care for all visitors except trespassers. Similar reforms
followed in New Zealand and several Canadian and American jurisdictions. 29 Speaking about the English Act,
LORD DENNING said: “It has been very beneficial. It has rid us of those two unpleasant characters, the invitee and
the licensee, who haunted the Courts for years, and it has replaced them by the attractive figure of a visitor, who
has so far given no trouble at all. The draftsman expressed the hope that ‘the Act would replace a principle of the
common law with a new principle of the common law ; instead of having the judgment of WILLES, J. construed as if
it were a statute, one is to have a statute which can be construed as if it were a judgment of WILLES, J.’ (in
Indermaur v. Dames , L.R. 1 C.P. 274). It seems that his hopes are being fulfilled. All the fine distinctions about
traps have been thrown aside and replaced by the common duty of care”. 30 As in India we can follow without any
legislation the English law of torts as modified by the statute law of England if the statute law is more in consonance
with equity, justice and good conscience, there is no difficulty in holding that the principles of the English Act
modifying the common law will be followed by the Indian Courts. 31
Invitee, licensee, or visitor.— The Act abolishes the distinction between an invitee and licensee and both are
comprehended under the Act in the term “visitor”. An occupier now owes to his visitors a single common duty of
care without any distinction whether the visitor be an invitee or a licensee. In case of contractual entrants also the
same common duty of care is owed by the occupier if there be no express provision in the contract providing
otherwise. The Act does not cover trespassers.
Duty laid on ‘Occupier’.— The duty under the Act is laid on an “occupier”. The leading authority on the meaning of
this term is the decision of the HOUSE OF LORDS in Wheat v. E. Lacon & Co ., 32 The case lays down that the
Act uses the word in the same sense as it was used in the common law cases on occupier's liability. “It was simply
a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty
of care towards those who came lawfully on to the premises. In order to be an ‘occupier’ it is not necessary for a
person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some
degree of control. He may share the control with others. Two or more may be occupiers. And whenever this
happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his
degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure but
each may have claim to contribution from the other.” 33 Where a landlord lets premises by demise to a tenant he is
regarded as parting with all control over them. 34 When an owner lets floors or flats in a building to tenants but
does not demise the common staircase or the roof or some other parts, he is regarded as having retained control of
all parts not demised by him. So he can be held liable for a defective staircase, 35 for the gutters in the roof, 36
and for the private balcony. 37 When an owner merely creates a licence in favour of a person to occupy them, he
still retaining the right to repairs, he is regarded as being sufficiently in control of the premises to impose on him
duty towards visitors and can be held liable to a visitor who falls on a defective step, 38 or to the licensee's wife
who is injured by fall of a defective ceiling. 39 When an owner employs an independent contractor to do work on
premises, the owner is usually still regarded as sufficiently in control of the place. In addition to the owner, the Court
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may regard the independent contractor as himself being sufficiently in control of the place he works as to owe a
duty of care towards persons coming lawfully there. 40 Where separate persons are each under a duty of care, the
acts or omissions which would constitute a breach of that duty may vary greatly and that which would be negligent
in one may well be free from blame in the other. 41 In Wheat's case, the premises were owned by the respondent,
a brewery company. The ground-floor was run as a public house by one Mr. Richardson for the company. The first-
floor was used by Mr. & Mrs. Richardson as their private dwelling. In the summer, Mrs. Richardson took as summer
guests Mr. & Mrs. Wheat and their family for her profit. Mr. Wheat fell down the back staircase in the private portion
and was killed. There were two causes for this accident: (i) the handrail was too short because it did not stretch to
foot of the staircase and (ii) someone had taken the bulb out of the light point at the top of the stairs. The HOUSE
OF LORDS held that the respondent company, Mr. and Mrs. Richardson were all occupiers within the Act as the
Richardsons were only licensees and not tenants of the private portion. But it was further held that in the
circumstances of the case, respondent company was not in breach of its duty of care and was not liable.
3(B) Visitors
As already stated the common duty of care under the Act is owed to visitors which expression now comprehends
both invitees and licensees. When there is express permission or invitation by the occupier the case presents no
difficulty in holding that the entrant is a visitor. But visitors also include persons entering with implied permission and
it is here that difficulty arises in deciding whether the entrant is a visitor with implied permission or a trespasser. The
question, however, is essentially one of fact to be decided objectively by assessing the inference arising from all
relevant circumstances. But in deciding such a question some general principles have to be kept in view. The
burden of proof is on the entrant to show that he had implied permission. 42 A person entering to communicate
with the occupier is presumed to have implied permission 43 unless there is a notice forbidding him to enter. 44
Tolerance of repeated trespass of itself confers no licence; 45 but that is a factor which may be taken into account
in support of an implied licence. 46 The Courts sometimes, especially in case of children, gave a finding in favour
of existence of an implied licence which was really “a legal fiction employed to justify extending to meritorious
trespassers, particularly when they were children, the benefit of the duty which at common law an occupier owed to
his licensee.” 47 The position of trespassers having now improved, 48 there may be less occasions now to infer a
licence or permission when it really did not exist. A visitor ceases to be a visitor if he goes to a place which is not
covered by the permission, 49 or where he is not expected to go, 50 or when he does something contrary to
warning or instructions. 51 In all such cases, the visitor would be treated as trespasser, 52 unless the negligence
of the occupier had induced him to take the wrong step. 53
The term ‘visitor’ will also include persons who enter premises for any purpose in the exercise of a right conferred
by law for the Act provides that such persons “are to be treated as permitted by the occupier to be there for that
purpose, whether they in fact have his permission or not.” So a Court official and a police constable entering the
premises in execution of a Court order or a warrant will be treated as visitors entering with the permission of the
occupiers.
A person exercising a public right of way is neither the licensee not the invitee of the occupier, i.e. , the owner of the
land over which the public right of way passes. 54 Both under the common law and the 1957 Act the owner of the
land is under no liability for negligent nonfeasance towards any member of the public using the public pathway and
so the owner cannot be held liable for nonmaintenance or non-repair of the pathway and no damages can be
claimed against him when a person using the pathway injures himself by tripping in a hole in it. 55
Common duty of Occupier to visitors.— The common duty of care which an occupier owes to all his visitors “is a
duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably
safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.” This is
provided in section 2(2) of the Act. The duty is not to ensure the visitor's safety, but only to take reasonable care. 56
The safety referred to is safety not only from dangers due to the state of the premises but also known dangers due
to things done or omitted to be done on them. 57 What is reasonable care will depend upon “all the circumstances
of the case.” 58 The section specifically says so. Section 2(3) provides that the circumstances relevant for the
purpose will include “the degree of care, and of want of care which would ordinarily be looked for in such a visitor.”
This is explained by giving two examples that “in proper cases (a) an occupier must be prepared for children to be
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less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate
and guard against any special risks ordinarily incidental to it, so far the occupier leaves him free to do so.”
What amounted to ’such care as in all the circumstances of the case is reasonable’ depended not only on the
likelihood that someone might be injured and the seriousness of the injury which might occur, but also on the social
value of the activity which gave rise to the risk and the cost of preventive measures. Those factors had to be
balanced against each other. It would be extremely rare for an occupier of land to be under a duty to prevent people
from taking risks which were inherent in the activities they freely chose to take upon the land. These principles were
laid down by the Houe of Lords in Tomlinson v. Cangleton Borough Council . 59 In this case the defendant
Borough Council owned occupied and managed a public park in which there was also a lake. The lake had sandy
beaches and was a popular recreational venue where yachting sub-aqua diving and other activities were permitted
but swimming was not. Notices reading Dangerous water: no swimming were posted. The claimant had gone to the
lake. He ran into the water and dived striking his head on the sandy bottom which caused him an injury resulting in
paralysis from the neck downwards. On the principles stated it was held that the defendants were not liable. That
people took no notice of warnings could not create a duty to take other steps to protect them.
Adult or child, visitor.— The difference between an adult visitor and a child visitor is that the child will meddle where
the adult will not and so what is safe for an adult may not be safe for a child, and this factor must be kept in view in
deciding whether the occupier has been wanting in the duty of care required by the Act. 60 In Glasgow Corporation
v. Taylor , 61 the facts were that a garden maintained by the Corporation was much frequented by children. There
were poisonous shrubs in a part of the garden which was accessible by a gate which could be easily opened by
young children. A child who entered with other children ate some berries of the poisonous shrubs which presented
a tempting appearance to the children and died. The Corporation had known of the existence of the poisonous
shrubs and had taken no step to warn the children or to prevent them in reaching that part of the garden. In a suit
by the father of the deceased child, the Corporation was held liable for want of due care to the children. It has been
aptly said that so far as infants are concerned, there is a duty “not merely not to dig pitfalls for them, but not to lead
them into temptation.” 62 A child visitor of Delhi zoo aged 3 years put his hand inside the iron bars where a tigress
was kept and his hand was crushed by the tigress. It was held that the zoo authorities should have put iron mesh on
the rods, which they did after the incident, to prevent a child putting his hand inside the rods and were liable in
damages for the injury and the child was not guilty of any contributory negligence. 63 If a child has been lured into
a forbidden area by the negligence of the defendant or his servant, he cannot be treated as a trespasser. So when
a cart and a horse were left unattended by the defendant's servant in a street and the plaintiff aged seven was
injured while playing with it and got injured, the defendant was held liable. 64 In Jolley v. Suttan London Borough
Council 65 a derelict and rotten boat was left on a grass area where the children played which was occupied by the
defendant local authority. The plaintiff a 14 year old boy in company with another boy attempted to repair the boat
after jacking it. The boat fell down when the plaintiff was under it causing him serious injuries resulting in
paraplegia. It was not disputed that the council should have removed the boat as there was a risk that the children
would suffer minor injuries. But the council contended that it was not foreseeable that any child would jack up the
boat and start repairing it like an adult and so they were not liable. This contention was negatived by the House of
Lords. It was held that the ingenuity of children in finding ways of doing mischief to themselves should never be
underestimated and it was foreseeable that the play could take the form of mimicking adult behaviour viz. , of
jacking and attempting to repair the boat and so the council was liable. 66 But in proper cases the occupier may
legitimately assume that the child will be accompanied by a responsible guardian and in this class of cases if the
danger is such that it would be obvious to a guardian or if a warning has been given which can be comprehended
by guardians, the occupier would not be liable if a child unattended by a guardian suffers harm. 67 In Phipps v.
Rochester Corporation , 68 the plaintiff, a child aged five, went with his sister aged seven, to an open space on a
building site of the defendants and there the plaintiff fell down into an open trench and broke his leg. The
defendants were held not liable for there was no reason to suppose that children of tender age will be allowed to
wander over the site unaccompanied by a proper guardian. But this rule will not apply to a place where, to the
knowledge of the occupier, little children are permitted by their parents to go unaccompanied in the reasonable
belief that they would be safe, e.g. a recognised playground. 69 The question of reasonable care in a given case
depends upon all the circumstances of the case and “one of the circumstances is the age and intelligence of the
entrant.” 70 In Titchener v. British Railways Board , 71 the appellant, aged 15, was seriously injured when she was
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walking across a Railway line and was struck by a train of the respondents. The railway line ran through a built up
and populous area. The line ran along an embankment and was fenced. The fence was made of sleepers standing
upright in the ground but at the time of the accident and apparently for some years, there were gaps in it. There was
some passage across the line through the gaps used as a short cut for a housing estate and brickworks. The proper
way for these places was somewhat longer. The respondents must have been aware that people did cross the line
in the above manner. The appellant knew of the existence of the railway line, that it was dangerous to walk across
and along it, that she ought to have kept a lookout for trains and that she had done so when crossing the line on the
previous occasions. On these facts the HOUSE OF LORDS held that the respondents did not owe the appellant a
duty to maintain the fence in a better condition than they had. The general principle regarding fencing of railway line
was laid down as follows: “The existence and extent of a duty to fence will depend on the circumstances of the case
including the age and intelligence of particular persons entering on the premises; the duty will tend to be higher in a
question with a very young or a very old person than in the question with a normally active and intelligent adult or
adolescent. The nature of the locus and the obviousness or otherwise of the railway may also be relevant.” 72
As regards section 2(3) (b), it shows that General Cleaning Contractors v. Christman , 73 is still good law under the
new Act. 74 The occupier can expect that a person in the exercise of his calling will appreciate and guard against
risks incidental to his calling and he need not be, therefore, warned about them. In the case of Christman , 75 a
window cleaner was engaged to clean the windows of a Club. One of the windows was defective and so when it
was being cleaned, it ran down quickly and trapped the hand of the window cleaner. It was held that he had no
cause of action against the Club for the risk of a defective window is incidental to the calling of a window cleaner.
Had it been a case of a guest the result would have been different. In Roles v. Nathan , 76 two chimney sweeps
were killed by carbon-monooxide while trying to seal a sweephole in the chimney of a cokefired boiler while the fire
was still alight and the occupier was held not liable. LORD DENNING in holding so observed: “These chimney
sweeps ought to have known that there might be dangerous fumes about and ought to have taken steps to guard
against them. They ought to have known that they should not attempt to seal up a sweep-hole while the fire was still
alight. Where a householder calls in a specialist to deal with a defective installation on his premises, he can
reasonably expect the specialist to appreciate and guard against the dangers arising from the defect. The
householder is not bound to watch over him to see that he comes to no harm.” 77 But the special skill of the
specialist and the incidental risks to which he is exposed in his calling are only some of the factors to be taken into
account. Thus it has been held that when a fire is negligently started, a fireman called to extinguish it if injured can
claim damages where it could have been foreseen that the fire if started will require firemen to attend and
extinguish it and because of the very nature of the fire, when they attend they will be at risk even though they
exercise all the skill of their calling. 78
Section 2(4)(a) of the Act provides that a warning to the visitor by the occupier is not to be treated without more as
absolving the occupier from liability unless in all the circumstances it was enough to enable the visitor to be
reasonably safe. Knowledge or notice of the danger is only a defence when the plaintiff is free to act upon that
knowledge or notice so as to aviod the danger. So if there is only one way of getting in or out of premises and it was
by a foot-bridge over a stream which was rotten or dangerous, the visitor if injured can make the occupier liable
even though he is warned of the danger or has otherwise knowledge of it; 79 but if there are two foot-bridges one of
which is safe the warning about the risk in using the other will be a complete defence as it is enough to enable the
visitor to be reasonably safe. 80
Section 2(4)(b) enacts the rule that where damage is caused to a visitor by a danger due to the faulty execution of
any work of construction, maintenance or repair by an independent contractor employed by the occupier, the
occupier is not to be treated without more as answerable for the damage if in all the circumstances he had acted
reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably
ought to in order to satisfy himself that the contractor was competent and that the work had been properly done.
This provision is to be given a broad purposive construction and the protection afforded by it covers a case of
“demolition” which ought to be taken to be covered by the word construction. 81 The provision is also not limited in
application to a situation where the work has been completed and it also affords protection against liability from
dangers created by a negligent act or omission by the contractor in the course of his work on the premises. 82 The
philosophy behind the provision is that “it would not ordinarily be reasonable to expect an occupier of premises
having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the
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contractor's activities in order to ensure that he was discharging his duty to his employees to observe a safe system
of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the
contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that
the system was made safe.” 83 An occupier may become liable even to a subcontractor's employee when the
contractor employed, although prohibited from the terms of his contract, has ostensible authority to engage a sub-
contractor; but in such a case also the occupier can claim the protection of section 2(4) (b). 84
The Act in section 2(5) preserves the defence of volenti non fit injuria . It is also understood that it will allow
apportionment of blame in case of contributory negligence of the visitor in accordance with the principles of the Law
Reform (Contributory Negligence) Act, 1945. The Act also covers damage to property.
3(C) Activity Duty
It has already been mentioned that to mitigate the rigour of common law the courts held that when injury to an
entrant was caused in course of some activity carried on by the occupier on his premises the normal principles of
negligence applied and the occupier would be liable if he did not take reasonable care for the safety of the plaintiff.
85 This duty called as “activity duty” was distinguished from “occupancy duty” of the defendant and did not require
that the plaintiff should bring his claim within the accepted categories of Invitee, Lincensee and Trespasser
relationships and it was for the plaintiff to choose whether he sought to base his claim against the defendant for
violation of activity duty or occupancy duty or both. 86 There is a difference of opinion on the question whether the
activity duty had been abolished by the Occupiers Liability Act, 1957. 87 Obiter dicta in British Railway Board v.
Herrington , 88 supports the view that it has been abolished. But the obiter dicta in Titchener v. British Railway
Board , 89 are to the effect that the activity duty has not been abolished by the Occupiers Liability (Scotland) Act,
1960.
3(D) Trespassers
Till recently the law was that an occupier did not owe any duty of care to a trespasser except not to inflict damage
intentionally or recklessly on a trespasser known to be present. This law was laid down by the HOUSE OF LORDS
in Robert Addie & Sons (Collieries) Ltd. v. Dumbreck . 90 Similar was the view of the Privy Council in
Commissioner of Railways v. Quinlan . 91 But an occupier cannot even according to this view harm a trespasser
by placing a spring gun 92 or setting a naked live wire 93 to prevent persons from trespassing on to his premises
without giving any warning of the danger to potential trespassers. In Cherubin's case, the Supreme Court said that
“the occupier is not entitled to do wilfully acts such as set a trap or set a naked live wire with the deliberate intention
of causing harm to the trespassers or in reckless disregard of the presence of the trespassers.” 94
The formulation of the duty in Robbert Addies ' case was severely restrictive and gave way to a more liberal
approach made in British Railways Board v. Herrington . 95 In this case, an electrified railway line of the Railway
Board ran between two National Trust properties where children played. There was a fence alongside the railway
line and a footbridge over it. At the place where the path turned towards the bridge, the fence had gone out needing
repairs and it was possible to cross the railway line without using the bridge. The Railway staff had seen children on
the line at this place. One day the plaintiff, a boy aged six, went over the broken fence and got severely burnt on the
electrified rail. In holding the Railway Board at fault and liable in allowing the fence in a broken down condition
having regard to the dangerous nature of the live rail and its perils for a small child, the HOUSE OF LORDS ruled
that duty to a trespasser would arise when the likelihood of the trespasser being exposed to the danger was such
that, by the standards of commonsense and common humanity, the occupier could be said to be culpable in failing
to take reasonable steps to avoid the danger. It was pointed out that an occupier owed no duty to the unknown
merely possible trespasser as such a person could not be called a “neighbour” in the sense that word was used by
LORD ATKIN in Donoghue v. Stevenson (1932 AC 562 : 76 SJ 396 : 48 TLR 494); but if the presence of the
trespasser was known to or reasonably to be anticipated by the occupier, then the occupier did owe to the
trespasser a duty to treat him with ordinary humanity which was a lower and less onerous duty than a general duty
of care or the common duty of care owed to lawful visitors. Similar view was taken by the Privy Council in Southern
Portland Cement Ltd. v. Cooper . 96 In this case the defendants were engaged in quarrying limestone. Waste
material from crushing operations was dumped at a place over which ran a high tension electric cable. By and by
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the gap between the cable and the mound got considerably reduced and the cable could be touched by hand.
School children were warned off the defendant's land on occasions and there was not much trespassing. The
plaintiff, a boy aged thirteen, came on to the mound to play with a friend and got injured when his hand touched the
cable. It will be noted that the dangerous situation was created by the defendants themselves, the presence of the
children was reasonably expected and it would have been easy for the defendants to take steps to prevent the
development of the dangerous situation which had caused the plaintiff injuries. On these considerations, the Privy
Council held that the defendants owed the plaintiff a duty to take steps to prevent the development of the
dangerous situation and were liable to the plaintiff for their failure to do so. LORD REID in that case stated the
general principle in these words: “The occupier is entitled to neglect a bare possibility that trespassers may come to
a particular place on his land but is bound at least to give consideration to the matter when he knows facts which
shew a substantial chance that they may come there. Such consideration should be all embracing. On the one hand
the occupier is entitled to put in the scales every kind of disadvantage to him if he takes or refrains from action for
the benefit of trespassers, and on the other hand he must consider the degree of likelihood of trespassers coming
and the degree of hidden or unexpected danger to which they may be exposed if they came. He may have to give
more weight to these factors if the potential trespassers are children because generally mere warning is of little
value to protect children. The problem then is to determine what would have been the decision of a humane man
with the financial and other limitations of the occupier. Would he have done something which would or might have
prevented the accident, or would he, regretfully it may be, have decided that he could not reasonably be expected
to do anything.” 97
Herrington's case was referred to the Law Commission which recommended legislative action to define an
occupier's duty towards trespassers which led to the enactment of the Occupiers Liability Act, 1984. According to
this Act, an occupier owes a duty to persons other than visitors i.e. trespassers if the following conditions are
satisfied (S.1(3)): (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or
has reasonable grounds to believe that the other is in vicinity of the danger concerned or that he may come into the
vicinity of the danger; and (c) the risk is one against which, in all the circumstances of the case, he may reasonably
be expected to offer the other some protection. If these conditions are satisfied, the occupier's duty is to take such
care as is reasonable in all the circumstances to see that the entrant does not suffer injury on the premises by
reason of the danger concerned and it may, in an appropriate case, be discharged by taking such steps as are
reasonable to give warning of the danger concerned or to discourage persons from incurring the risk. There is no
duty with regard to damage to property and the defence of volenti non fit injuria is preserved.
In determining whether in a given case there existed a duty of care under the 1984 Act the test to be applied having
regard to section 1(3) (B) is whether in the circumstances prevailing at the time that it was alleged that the breach of
duty had resulted in injury to the claimant the occupier knew or had reasonable ground to believe that the person
was coming or might come into the vicinity of the danger of which the occupier was aware. It was so held by the
Court of Appeal in Danoghire v. Folkestone Properties Ltd . 98 In this case the claimant went for a night swim
shortly after midnight in mid winter, dived from a slipway into Folkestone harbour, stuck his head on a submerged
pile, broke his neck and was rendered tetraplegic. It was known that children and sometimes adult swam from the
slipway in summer and security guards would try to stop children swimming in the harbour. As it could not be
expected that anyone would come for swimming at the dead of night in mid winter it was held that the occupier
owned no duty of care to the claimant and his claim failed.
The duty to take care of a trespasser was carried, it is submitted, to an extreme in Revill v. Neubery . 99 In this
case the defendant who was 76 year old was sleeping in a brickshed to protect valuable items stored in it. The
plaintiff was on the point of entering the shed for burglary when he was shot by the defendant by a shotgun
wounding him in the arm and chest. The plaintiff was prosecuted for various offences and was convicted on a plea
of guilty. The defendant was also prosecuted for wounding the plaintiff but was acquitted. But in the suit filed by the
plaintiff for damages for causing injury by negligence being in breach of duty to a trespasser, the plaintiff
succeeded. It was held that the defendant exceeded his right of private defence and was liable to pay damages
which were reduced as the plaintiff was found guilty of contributory negligence and his blame was assessed to be
two-third.
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It is yet to be seen whether the Courts in India will follow the principles laid down in Herrington's case (f.n. 85, supra
) and Cooper's case (f.n. 86, supra ) or whether they will follow the principles of the English Act of 1984. It is
submitted that criterion of duty towards trespassers as laid down in these two decisions is quite equitable and just
and is not likely to give rise to any difficulty in application and so it may not be necessary to take recourse to the
English Act of 1984 in India. But even if the principles of the English Act are followed the result in most of the cases
would not be different.
3(E) Children
Children do not form a special class. They are treated as visitors or trespassers as the case may be. But the age
and intelligence of an entrant is a relevant factor and the Court is to take this into consideration in deciding cases of
a child visitor or trespasser. These have already been considered above. 1
3(F) Persons lawfully passing by the premises
In regard to the persons lawfully passing by the premises, the duty extends to guarding against what may happen
just behind the premises, on the road, or other place, where a person passing by may lawfully be. If a person, for
instance, puts up a lamp projecting from his premises over the public footpath, it is his duty to maintain it in a safe
state of repair. If an injury is caused by the falling of the lamp on a passer-by for want of repairs, he cannot be
allowed to ride on by saying that he had employed a competent person to do the repairs. 2 “Where it is the duty of
persons to do their best to keep premises, or a structure, of whatever kind it may be, in a proper condition, and we
find it out of condition, and an accident happens therefrom, it is incumbent upon them to shew that they used that
reasonable care and deligence which they were bound to use, and the absence of which it seems to me may fairly
be presumed from the fact that there was the defect from which the accident had arisen.” 3 If, owing to want of
repair, premises on a highway become dangerous and constitute a nuisance so that they collapse and injure a
passer-by or an adjoining owner, the occupier or owner of the premises, if he has undertaken the duty to repair, is
answerable, whether he knew or ought to have known of the danger or not. 4 These principles were applied by the
Supreme Court 5 in a case where a clock-tower which was 80 years old collapsed in Chandni Chowk, Delhi,
causing the death of a number of persons. It was held that there was a special obligation on the owner of adjoining
premises for the safety of structures kept besides a highway and that it was no defence for the owner to prove that
he neither knew nor ought to have known of the danger. 6 The same principle was applied in holding the Delhi
Municipal Corporation liable when the branch of a tree standing on the road suddenly broke down and fell on the
head of the pillion rider killing him when the scooter driver by his brother passed under the tree. 7 It was held that
the Horticulture Department of the Corporation should have carried out periodical inspection and should have taken
safety precautions to see that the road is safe for its users. 8 Where a heavy object is suspended over a highway,
and must fall into it unless supported by artificial means which can only be kept in order by the person in
possession of the premises, such person is bound absolutely to maintain the attachments. 9
Where passers-by were injured by the falling of a brick from a bridge, 10 a barrel of flour from a window, 11 a
packing case, 12 a bag of sugar from crane, 13 or a defective shutter from a house abutting on a highway, 14 or
by the stump of a wall projecting about six to eight inches above the level of the road, 15 or by the falling of an
adveritsement banner attached to a frame overhanging the road, 16 it was held that they could recover damages.
Leaving unfenced excavated area. —A, a builder, left an excavated area open and unfenced against the road on
which it abutted. B, lawfully walking at night along the thoroughfare, passing close by the premises, fell into the
area. A was held to have failed to exercise the care of a prudent man. 17
Collision with gate-post. —A railway company erected on the public highway certain gate-posts from which
collapsible steel gates could be run across the road so as to close the entrance to the station-yard. A taxicab-driver,
while driving his cab on a dark rainy night into the station-yard, collided with one of these posts, which was invisible
owing to the darkening of the street in compliance with the Reduction of Lighting Regulations, and thereby
damaged his cab. In an action by the cab-driver against the railway company for damages, it was held that the
accident arose from the existence of the gate-post, which had been legalised by a statute, coupled with the
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diminution of light necessitated by the exigencies of the war; and that, therefore, the complany was not guilty of
negligence. 18
Tree falling on person using highway.— An elm tree standing on land adjoining a busy London highway fell, injuring
persons along the thoroughfare. The tree was about one hundred and thirty years old and carried a large, but not
abnormal crown. The occupiers of the land had never lopped, topped or pollarded the tree. After its fall its roots
were found to be affected by a disease known as elm butt rot, which was of long standing but would have been
undiscoverable by any reasonable examination. There was evidence that elms are treacherous and shollowrooted
and liable to fall suddenly. The persons injured having brought an action against the occupiers for negligence or
nuisance, it was held that, inasmuch as the tree was apparently sound and healthy and the evidence did not
establish that inspection by an expert would have revealed that it was dangerous, the occupiers were not liable in
either negligence or nuisance. 19
Branch of tree falling on vehicle.— A branch of a tree growing on the defendants land overhung a highway. The
branch suddenly broke, fell upon the plaintiffs vehicle, which was passing along the highway, and damaged it. The
defendant did not know that the branch was dangerous. The fracture was due to a latent defect not discoverable by
any reasonably careful inspection. It was held that the mere fact that the branch overhung a highway did not make it
a nuisance, and that the defendant was not liable, inasmuch as he had not created the danger and had no
knowledge, actual or imputed, of its existence. 20 But if there is a tree standing on the defendant's land which is
dried or dead and for that reason may fall down and the defect is known or should have been known to the
defendant, then the defendant is liable for any injury caused by falling of the tree or its branches. 21
Injury to a child from spiked or unsafe wall.— In front of a window of the defendant's shop, and immediately abutting
on a public highway, was a low wall eighteen inches high, the defendant's property, on the top of which was a row
of sharp spikes. The plaintiff, a child of five, was found standing by the wall, bleeding from a wound such as might
have been caused by her falling upon the spikes. It was held that there was evidence that the injury was caused by
the wrongful act of the defendant, in maintaining the nuisance, while the plaintiff was using the highway in a proper
manner. 22 The defendants were a demolition company who were carrying out the demolition of certain houses.
Behind the houses was an open, cleared site where people were allowed to walk and children were accustomed to
play. All the houses had been demolished except one which had been taken down to the level of the first floor
ceiling. The rear wall of this house, which was over one hundred years old, had been damaged by bombing. On a
Sunday afternoon, when none of the defendants’ servants was on the site, the plaintiff, aged twelve, with other boys
went on the site, and, having picked up some gas piping, started to pull away loose bricks from a window opening in
the rear wall, with the result that the wall fell and the plaintiff was injured. In an action for negligence, it was held
that although the plaintiff was a trespasser on the land, the presence of children on the site was so likely an
occurrence that the plaintiff came within the class of “neighbour” to whom the defendants owed duty of care, and,
therefore, they were liable in negligence to the plaintiff for failing to take precautions to prevent his suffering injury
through the unsafe condition of the wall. 23
Injury to motor cyclist.— The defendants were owners and occupiers of premises including a grassland called
Green, one side of which adjoined a busy high-way. Children up to ten or eleven years of age were permitted to
play on the Green and the defendants knew that the children regularly played there with a foot-ball which often went
over the wall which separated the Green from the highway and had to be retrieved from the highway. Once the foot-
ball went over the wall on to the highway and caused a passing motor-cyclist to fall and sustain fatal injuries. It was
held that the defendants were liable as they ought to have realised that children playing in this manner constituted a
risk to the persons using the highway. 24
An owner or occupier of land adjoining an ordinary highway is however not bound to fence it so as to prevent
harmless animals like sheep from straying upon the highway. 25 Where a danger has been created on a highway
by something done on the highway and not by anything done on the adjoining land, the owner of the adjoining land
is not bound to make any alteration on or to his land to do away with that danger. Thus, where, in consequence of a
highway having been made up by a highway authority, the level of the adjoining land, which is unfenced, has been
lowered so as to cause a dangerous drop from the edge or kerb of the reconstructed highway, and a pedestrian
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slips down from the highway on to the adjoining land and is thereby injured, the owner of the adjoining land is not
liable, but the highway authority is. 26
3(G) Railway Level Crossing
Railway companies are always bound by statutes in England to keep closed the gates of the railway at level
crossings at those times at which it would be dangerous to allow the public to cross the line. If this duty is not
performed, and a passenger along the highway is, in attempting to cross the line of railway, injured, the leaving of
the gates open is evidence of negligence on the part of the railway company, even though with care and
circumspection, he might have been able to see at a distance the approach of the train which occasioned the injury.
27 If the gates of the railway, at a place where it crosses the highway at a level are open, it amounts to a statement
and a notice to the public, that the line, at that time, is safe for crossing. 28 Apart from statute the carrying on of an
inherently dangerous activity of running express trains through a level crossing, which is lawfully and necessarily
used by local inhabitants, their guests and persons visiting on business, imposes on the railway company a general
duty of care towards those who are lawfully on the level crossing. Such general duty to take all reasonable
precautions to ensure the safety of persons lawfully using a level crossing extends not merely to positive operations
but also to static conditions, and included the obligation to keep the crossing itself in reasonably adequate
condition. 29
In India there is no direct statutory duty on the Railways to erect gates and employ watchman etc. as in England
until the Central Government so requires by a requisition under section 13 of the Railways Act.30 But the Railways
being engaged in an inherently dangerous activity affecting the safety of traffic at a level crossing are bound in India
also by the common law duty on the principle of neighbourhood laid down in Donoghue v. Stevenson 31 and
applied by the privy council in commissioner for Railways v. Mcdermott . 32
Care should be exercised by the driver of an engine when he proposes to cross at night an unfenced level crossing
laid across a public highway. 33 Mere allegation or proof that the company was guilty of negligence in such cases
is altogether irrelevant; the plaintiff must allege and prove, not merely that the company was negligent, but that its
negligence caused or materially contributed to the injury. 34
A railway company allowing the public to cross the line otherwise than by a level crossing is not duty bound to use
care to protect the public; but if it is such a place where people are in the habit of crossing, the company has to take
reasonable precautions in the use of the spot, even though there is no right of way there. 35
There is an obligation on the part of the Railway Company or Administration to ensure that whenever a railway line
passes over a thoroughfare adequate warning should be given to the public of the passing of the trains at the time
they pass so that accidents may be avoided. 36 As already seen, this duty need not necessarily be a statutory
duty. It is implied and inherent in the functions to be discharged by the railway administration in the matter of
running their railways. The railway administration must, therefore, when the road crossed is busy and the visibility of
incoming train is obstructed take the precaution of either putting up a railway gate and keeping it closed at the time
the train is due to pass or put up some other obstruction which would prevent the public from passing over the level
crossing giving them information and notice of the approaching train. 37 Where a railway line crosses a busy road
at such a point that the incoming train is not visible until the passer is on the railway track, there is no question of
contributory negligence in case of accident. 38 But there is no general duty to man all level crossings e.g. when the
road crossed is not busy and the visibility is not obstructed. 39
In Union of India v. United India Assurance Co. Ltd. , 40 the Supreme Court approved a passage from the
judgment of Krishan J.C in Union of India v. Lalman , 41 as representing correctly the common law. The passage
reads as follows: “A level crossing is on the one hand a danger spot in view of the possible movement of trains, and
on the other is an invitation to passerby. This is a public crossing and not merely one by private accommodation.
Therefore, it is the legal duty of the railway to assure reasonable safety. The most obvious way of doing it is to
provide gates of chain barriers and to post a watchman who should close them shortly before the train passes. But
failure to do so is not by itself an act of negligence provided that the railway had taken other steps sufficient in those
circumstances to caution effectively a passerby of average alertness and prudence. At a reasonable distance on
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either side permanently written boards can be affixed asking the road users to beware of trains if the track on either
side is visible from near the caution board or within a short distance from the crossing. This would be sufficient
because a diligent road user could look round and see the train. On the other hand, if there is a bend on the track or
there are trees or bush in between or the road on either side of the crossing is very far below the level of the railway
track or for any other similar reason the track is not visible beyond a short distance, then even the caution boards
are useless. In that case gates are indicated. Similarly boards may be affixed along the railway say half to three
fourth of a mile in either direction calling up on the engine driver to whistle. A whistle by the driver can supplement,
but cannot replace gates or caution boards as a device to protect the users of a crossing.” 42 In addition to what is
stated above it will also appear from the judgment of the Supreme Court that the common law principle will also
require converting an unmanned crossing into a manned crossing with gates etc. if the volume of rail and road
traffic is considerable. In the case before the Supreme court the finding was that 300 vehicles passed through the
crossing and six express trains cut across the public road every day in addition to other non-express passenger and
goods trains. The writing on the sign board was moth eaten and there were no hand rails or gates. In these
circumstances approving the finding of negligence reached by the High court the Supreme Court observed:
“Applying the common law principles, the railway must be deemed to be negligent in not converting the unmanned
level crossing into a manned one with gates—having regard to the volume of rail and road traffic at the point.” 43
The Supreme Court also held the Central Government negligent for omission to exercise the statutory power under
section 13 of the Railways Act requiring the railway to erect gates etc. This part of the judgment is discussed
elsewhere. The Supreme Court also held that there is a duty of the driver of a motor vehicle “to stop, see and hear,
at the unmanned level crossing.”44 As in the case before the Supreme Court the driver of the motor vehicle did not
stop even though the on coming train was visible and the collision took place at the middle of the crossing, he too
was found to be negligent. In the circumstances the owner of the motor vehicle and the Railway were held to be
joint tort feasors.
S attempted to cross a railway line at night at a spot where persons were in the habit of crossing with the
acquiescence of the company. At the time he attempted to cross, there was a train standing still on the up line in
such a position as to prevent a person on the line behind it from seeing anything approaching on the down line. S
came from behind the train on the up line, and, crossing on the down line, was struck by an express train and killed.
It was held that the company was liable for negligence. 45 The plaintiff, a medical doctor, whose time was of
pecuniary value, was, while driving along a public highway, detained for twenty minutes at a level crossing by the
unreasonable and negligent delay of the servants of the defendant railway company in opening the gates at the
crossing. It was held that the defendants were liable in damages to the plaintiff for such delay. 46 Where the
plaintiff's elephant was hit and killed by a train at a level crossing, which was not guarded by a gate-keeper and the
gates had not been closed before the approach of the train, and there was no unreasonable conduct on the part of
the driver of the elephant, it was held that the defendant railway company was liable. 47
Where the plaintiff’ who was travelling in his car at the speed of seven miles per hour, finding the gates of a railway
level crossing open, tried to cross the rails and while doing so, a railway engine collided against his car and broke it,
it was held that the plaintiff was not guilty of contributory negligence and that he was entitled to recover damages
from the railway company. 48
3(H) Invitation to alight at a Railway Station
The announcement of the name of a station coincident with the stoppage of the train thereat, and its coming to a
complete standstill, is, in the absence of a warning to the passengers to keep their seat, an invitation to alight. 49 If
a passenger gets out of the train under these circumstances he is not guilty of any want of reasonable care. An
invitation to passengers to alight on the stopping of a train without any warning of danger to a passenger who is so
circumstanced as not to be able to alight without danger, such danger not being visible and apparent, amounts to
negligence. 50 Railway companies are bound to provide, at every station, reasonable means for passengers to
alight. 51 Passengers are equally bound to use reasonable care in alighting on the platform, or elsewhere, where it
becomes necessary for them to alight. 52 If, for instance, a train overshoots a platform, a thing which very often
happens, a passenger is bound to see whether or not the train is shunted back, and to take reasonable care when
he gets down, otherwise the railway company will not be liable. 53 The test is—was the place where the plaintiff
was required to alight, a safe or dangerous place, that is, was it a place where persons of ordinary intelligence and
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physical capacity exercising reasonable care could alight without risk of injury? 54 The mere fact of the end of a
train passing the platform, where the passenger can safely alight, is not of itself evidence of negligence, for it is
impossible always to regulate the speed of the train, and sometimes the platform may not be long enough. But
when this happens, it becomes the duty of the company to take measures for the safety of the passengers in the
carriages beyond the platform. They are not to be exposed to unncessary danger: the train may be backed, and in
the meantime the passengers may be warned to keep to their seats until it is backed. If, being so warned, they
choose to get out and expose themselves to unnecessary danger, that is their fault, and in such circumstances the
company would not be liable. But if that course is not adopted, and the train does not back, the passengers should
be asked if they will alight, and porters should assist them in getting out,—such of them at least as may require
such assistance,— at all events, something should be done to prevent their incurring unnecessary danger. 55
In India the foregoing principles have been followed, and it has been held that mere overshooting is not necessarily
or by itself negligence. There must be something more in order to entitle the plaintiff to claim damages on the
ground of negligence of the railway company. 56
On the approach of a train to a station, a porter called out the name of the station, and the train was brought to a
standstill. Hearing carriage doors opening and shutting, and seeing a person alight from the next carriage, the
plaintiff stepped out of a carriage; but the carriage in which he was, having overshot the platform, he fell on to the
embankment and was hurt. It was night, and there was no light near the spot, and no caution was given, nor
anything done to intimate that the stoppage was a temporary one only, or that the driver intended to back the train.
It was held that the company was liable for negligence on the part of its servants. 57 But where under similar facts
a porter had shouted to the passengers to keep to their seats but the plaintiff failed to hear him as he was asleep
and got out in a hurry without looking to see what he was stepping on and fell five feet below and was injured, it was
held that the company was not liable as he was guilty of contributory negligence. 58 A railway train drew up at a
small station with the engine and part of one of the carriages beyond the platform. A passenger in that carriage,
having a parcel in her hands, opened the door and waited on the iron step some time for assistance; but no one
coming to assist, she, fearing that the train would move on, tried to alight by getting on to the footboard, and in so
doing fell and injured herself. It was held that she was entitled to maintain an action against the company. 59 The
mere stopping of a train and calling out the name of a station is not, in all cases, evidence of an invitation to alight.
The plaintiff was a passenger by the defendants’ railway to Bromley station. As the train arrived there she heard
“Bromley, Bromley” called out several times. The train was brought to a standstill, but not before it had partly
overshot the platform. As the plaintiff was in the act of getting out, and when her foot was on the step of the
carriage, the train was put back with a jerk, and she fell on the platform. The period occupied by the stoppage of the
train was little more than momentary, and the plaintiff knew the station well; it was held that there was no evidence
of negligence on the part of the defendants. 60
The plaintiff was a passenger travelling on the defendants’ railway, and received severe injuries from a fall which he
experienced in stepping upon the platform when the train, which overshot the station, stopped. It was held that the
railway company was guilty of negligence in not keeping the station properly lighted, in allowing the train to
overshoot the station, and in not warning the plaintiff against alighting. 61
The plaintiff was a passenger in a railway train of the defendant company. At the station, where the plaintiff had to
get out of the carriage, the train overshot the platform; and the plaintiff, on the implied invitation of the defendants,
alighted where the train stopped. The place was dark and there were no lamps. No warning was given to the
plaintiff that the train had passed the platform or that special care must be taken in descending. The plaintiff fell
heavily and was seriously injured. It was held that the company was liable in damages. 62
3A. PERSONS IN CHARGE OF CHILDREN

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The question of standard of care of parents and teachers in charge of children was recently considered by the
Supreme Court in M.S. Grewal v. Deepchand Sood. 63 It was observed that while the parent owes his child, a duty
of care in relation to the child's physical security a teacher in a school is expected to show such care towards a
child under his charge as would be exercised by a reasonably careful parent, that duty of care varies from situation
to situation and that more care is needed when the children are taken out on a picnic for fun and swim in a river. 64
In this case 14 children of 4th, 5th and 7th classes of Dalhousie Public School drowned in the river Beas when they
along with other children were taken out for an outing. The teachers in charge of the children were found negligent
and the school was vicariously held liable in damages to the parents of the children.
4. PERSONS PROFESSING TO HAVE GREATER SKILL
Where it is evident that persons hold themselves out to be persons of skill, they are bound to exercise skill. It is not
enough that the defendants have acted bona fide and to the best of their skill and judgment. The practice of a
profession, art, or calling, which, from its nature, demands some special skill, ability, and experience, carries with it
a representation that the person practising or exercising it possesses, to a reasonable extent, the amount of skill,
ability, and experience which it demands. His duty is to use such care as would be used by others in the same
profession. This duty to take reasonable care is independent of contract. For example, if professional persons
employed by an education authority negligently fail to assess and provide for special educational needs of a child
(with whom they have no contractual relationship) they are liable to him in tort being in breach of their common law
duty and the authority is also vicariously liable. 65 Dealing with the case of a valuer, the HOUSE OF LORDS
recently observed: “The valuer will only be liable if other qualified valuers, who cannot be expected to be harsh on
their fellow professionals, consider that, taking into consideration the nature of the work for which the valuer is paid
and the object of that work, nevertheless he has been guilty of an error which an average valuer in the
circumstances, would not have made.” 66 Similar test can be applied to other professionals. Of this class the
following are discussed hereinafter.
1. Directors of companies 542
2. Carriers 542
3. Innkeepers and Hotel Keepers 548
4. Physicians and Surgeons 552
5. Solicitors 565
6. Counsel 567
7. Bankers 568
8. Manufacturers 570
9. Valuers 659, 660
4(A) Directors of Companies
Directors of a company ought to show more than ordinary care towards the shareholders, for they are persons
holding themselves out as capable of directing complicated affairs and inviting persons to trust their money to the
company which they profess to direct. They are, unlike trustees, who undertake irksome duties for no pay or
advantage, for they are always either paid or deriving some benefit or advantage from their position. They must
show diligence which good men of business are accustomed to show. 67
4(B) Carriers 4(B)(i) Carriers of Goods
Anyone who undertakes to carry the goods of all persons indiscriminately, for hire, is a common carrier. 68 A
person who carries goods of particular persons on special contract and does not hold himself out to transport the
goods of everyone wishing to employ him is a private carrier and not a common carrier. Common carriers are
generally of three descriptions: (a) carriers by land; (b) carriers by water; and (c) carriers by air. Carriers by land are
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the proprietors of stagecoaches, omnibuses, and motor-lorries, which ply between different places and carry goods
for hire. So are truckmen, cartmen, and porters, who undertake to carry goods for hire from one town to another or
from one part of a town to another. But furniture removers are not liable as common carriers. 69 Carriers by water
are the owners, and masters of ships whether they are regular packet ships, or carrying smacks or coasting ships,
or other ships carrying general freight. So are the owners and masters of steam-boats engaged in the
trasnsportation of goods for persons generally for hire.
Duties.— A common carrier is bound to carry all goods offered for transportation by any person, whatsoever, upon
receiving a suitable hire. He must take the utmost care of goods from the moment of receiving them. 70 If the
carriage is to be by water, carriers are bound to provide a ship tight, staunch and strong, and suitably equipped for
the voyage, with proper officers and crew; to guard against all injuries incident to the property, by reasonable care
in preserving the goods from the effects of storm or bad air, of leakage, and of embezzlements. Every carrier is
bound to use all the diligence which prudent and cautious men, in the like business, usually employ for the safety
and preservation of the property confided to their charge. 71
Liability.— A common carrier, at common law is an insurer of goods committed to his charge and is responsible for
their safe transport and delivery. In case of loss or injury thereto, he is, therefore, as a rule, liable, though there may
have been no negligence on his part. To this rule there are exceptions, e.g. when the loss or injury has been
caused by an act of God, the King's enemies, or an inherent vice or defect in the goods carried and without
negligence on the part of the carrier. 72 The carrier may limit his liability by means of special contract or condition.
73
A railway company is under liability as a common carrier for loss of or damage to the luggage of a passenger not
only where the luggage is placed in the luggage van, but also where it is retained by the passenger as hand
luggage, unless the company can prove that the passenger assumed the immediate care of the luggage so retained
and that the loss or damage was occasioned by his failure to exercise proper care of it. The company is not relieved
of this liability merely because the luggage is not in the carriage in which the passenger himself travels, or is placed
in a carriage of a higher class. 74
The common law liability of common carriers has been to some extent relaxed by statutes. The Indian Carriers Act,
1865 now governs the liability of common carriers. The Carriers Act does not apply to Railways which are governed
by the Railways Act, 1890. Similar special Acts have been passed to cover carriage of goods by Sea (Carriage of
Goods by Sea Act, 1925) and by Air (Carriage by Air Act, 1972). The liability of a common carrier under the Carriers
Act and of a railway under the Railways Act (after amendments in 1949 and 1961) is, speaking generally, that of an
insurer so that the plaintiff need not prove negligence. Both the Act s, however, contain provisions which enable
them to reduce the liability by special contract in certain cases. The Railways Act also enables a Railway to reduce
its liability by offering reduced rate of carriage known as the Owner's Risk rate.
The law relating to the liability of a common carrier under the Carriers Act, 1865 was reiterated by the Supreme
Court in the context of goods carried by road. The court said: “The liability of a common carrier under the Carriers
Act is that of an insurer. This position is made further clear by the provisions in section 9 in which it is specifically
laid down that in a case of claim of damage for loss to or deterioration of goods entrusted to a carrier it is not
necessary for the plaintiff to establish negligence. Even assuming that the general principle in cases of tortious
liability is that the party who alleges negligence against the other must prove the same, the said principle has no
application to a case covered under the carriers Act. This is also the position notwithstanding a special contract
between the parties.” 75 These principles, the court held, were also applicable to a claim of damages for deficiency
in service against a common carrier under the Consumer Protection Act, 1986 and the claimant has not to prove
negligence of the common carrier for showing deficiency in service.76 But the requirement to serve notice under
section 10 of the Carriers Act is mandatory even for bringing a calim under the Consumer Protection Act.77
4(B)(ii) Carriers of Passengers
The duty of carriers of passengers is to take due care (including in that term the use of skill and foresight) to carry
the passengers safely.
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Duties.— The passenger carriers are bound to carry passengers whenever they offer themselves, and are ready to
pay for their transportation, and are not at liberty to refuse a passenger, if they have sufficient room and
accommodation. The proprietors are bound to provide road-worthy vehicles suitable for the safe transportation of
the passengers, and also careful drivers, of reasonable skill, who are well acquainted with the road they undertake
to drive. The right which the passenger by railway has to be carried safely does not depend on his having made a
contract, but the fact of his being a passenger casts a duty on the company to carry him safely. 78
Liabilities.— Passenger carriers undertake to provide for the safe conveyance of those who engage them as far as
human care and foresight can go. They are not liable for any accident. 79 Thus the liability of a passenger carrier is
not the same as that of a common carrier. A passenger carrier is liable only in case of negligence whereas, as
already seen, a common carrier is liable generally as an insurer without proof of negligence.
Railway companies.— are bound to use proper care and skill in carrying their passengers; they are not liable as
common carriers of passengers independently of negligence. 80 They must take all such steps as skill, prudence,
and foresight can devise to keep passengers free from personal injury while travelling on their system. 81 If an
accident is caused by a latent defect in a vehicle, which it is impossible, with the exercise of all due care, caution,
and skill, to have discovered, the railway company is not liable. 82 If there is a special contract absolving the
railway company from injury caused by their negligence no action lies. 83 The railway authorities are bound to
make provision for the safety of children of tender years but they can make these provisions on the basis that such
children would be accompanied by someone capable of looking after them. 84 If no reasonable steps are taken to
prevent damage to person and property of passengers from unruly mob when such incidents are a matter of
recurring phenomenon, the Railway administration will be held liable for negligence. 85
Liability for Baggage of passengers.— In regard to their liability for the luggage of passengers, railway companies
stand upon the ordinary footing of common carriers. 86 Baggage means such articles of necessity or personal
convenience as are usually carried by passengers for their personal use, and not merchandise or other valuables,
although carried in the trunk of passengers, which are not designed for any such use, but for other purposes, such
as a sale and the like.
Death caused by assault in a running train.— A passenger was criminally assaulted in 1981 while travelling in a
local train and was robbed of her gold chain, bangles and wristwatch. She pulled the alarm chain but despite the
ringing of the alarm bell neither the guard nor the motorman stopped the train. She ultimately succumbed to the
injuries in the compartment. The Supreme Court held the Railway Administration guilty of negligence and in breach
of common law duty of taking reasonable care for the safety of passengers. Had the train been stopped and first aid
provided to the passenger, she may not have succumbed to the injuries. The court allowed Rs. 2 lacs as
compensation to the husband of the deceased. 87 The case also holds the railway administration liable for violation
of Article 21 of the constitution as the Railways are owned by the Union Government.
Death caused by explosives illegally introduced into railway carriage.— Where a passenger was killed in a railway
carriage by an explosive illegally introduced into it, it was held that the railway company was not liable in damages
unless guilty of negligence in permitting the fireworks to be brought into the carriage. As it was not the duty of the
company to search every parcel carried by a passenger, the onus was on the plaintiff to show that the parcels
containing the fireworks suggested danger. 88
Injury by falling of ladder in railway compartment.— The plaintiff travelled in a second class compartment of a train
on the defendants’ railway. The compartment carried a ladder to get to upper berth. The ladder when not in use was
kept underneath one of the lower berths. On the occasion in question, someone had folded the ladder and kept it in
a rack near the roof of the compartment. The plaintiff went to sleep on one of the lower berths. After the train had
proceeded an hour's journey, the ladder fell on the plaintiff's head and caused him injury. The plaintiff having sued
to recover damages it was held that the defendants were not shown to have been negligent. 89
The requirement of the law that the plaintiff must prove negligence for succeeding in a suit against a railway was
leading to hardship in many cases. The Railways Act 1890 was, therefore, amended in 1943 by insertion of Section
82 o 124 of the Railways Act, 1989. This section provides for liability of the Railway administration for loss
occasioned by the death of a passenger, dying as a result of a railway accident and for personal injury and loss of
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property arising from the accident whether or not there has been any wrongful act, neglect or default on the part of
the Railway administration. The compensation payable under this section is to the extent as may be prescribed.
The compensation is payable on the happening of an accident which as defined is one which occurs in the course
of working a railway being either a collision between trains of which one is a train carrying passengers or the
derailment of or other accident to a train or any part of a train carrying passengers.90 By the Railways
(Amendment) Act 1994 a new concept of ‘untoward incident’ and compensation for death of or personal injury to a
passenger as a result of untoward incident was provided in section 124A without proof of negligence as in case of
accident in section 124. ‘Untoward incident’ is defined in section 123 (c) to mean commission of a terrorist Act,
making of a violent attack or commission of robbery or dacoity, indulging in looting, shootout or arson, and the
accidental falling of any passenger. 91 The compensation payable under sections 124 and 124A is regulated by
the Railways Accidents and Untoward Incidents (Compensation) Rules, 1990.
The definition of untoward accident has been liberally construed. It has been held to cover a case where a
passenger fell down while attempting to board the train. 92 Section 124A makes the Railway administration liable
irrespective of any fault except when the passenger dies or suffers injury due to (a) suicide or attempted suicide by
him; (b) self inflicted injury (c) his own criminal act (d) any act committed by him in a state of intoxication or insanity
and (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary
due to injury caused by the untoward accident. In other respects section 124A provides for strict liability and if a
case comes within its purview it is wholly irrelevant as to who was at fault. 93
As regards carriage by air uniformity of rules of international carriage has been brought about by the Warsaw
Convention as amended by the Hague Protocol, 1955. The convention makes the liability of the carrier strict but
limited to the amount specified therein. The convention has been enforced as law in the United Kingdom by the Air
Act, 1961 and in India by the Carriage by Air Act, 1972. Provision is made in these Acts to apply the rules of the
convention with modification to non-international carriage. The convention is exhaustive of the matters covered by it
relating to international carriage and excludes the common law remedy to claim damages on those matters. 94
Even the rules of the convention as applied with modification to non-international carriage in the United Kingdom
exclude the application of the common law. 95 In India it has been held thatliquidated damages awardable for air
accident on an international carriage under the convention cannot be reduced by set-off of collateral benefits such
as amounts received under personal accident insurance policy. 96 According to Article 17 of the convention ‘the
carrier is liable for damage sustained in the event of the death or wounding of a passenger or any bodily injury
suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or
in the course of any of the operations of embarking and disembarking’. In Morris v. KLM Royal Dutch Airlines , 97
the claimant was indecently assaulted by a fellow passenger while she was sleeping. She suffered mental injury but
no physical injury. The court of Appeal on a construction of Article 17 held that indecent assault was an accident but
mental injury was not bodily injury and therefore the claimant was not entitled to recover any damages. 98 The
word ‘accident’ in Article 17 has been construed to comprise of two elements: (1) There must be an event, and (2)
The event must be unusual, unexpected or untoward. The existence of permanent integral features of the aircraft,
such as crompted seating, alterations of air pressure, atmosphere or temperature or the subjecting of passengers to
carrying in aircraft with those features were held not capable of satisfying the first limb of the definition of an
accident and passengers suffering Deep Vein Trombosis (DVT) because of these reasons were held not entitled to
damages. 1 Similarly when a passenger suffered injuries following slip on plastic strip fixed to floor of aircraft, it
was not held to be an ‘accident’ giving rise to a claim for damages. 2
As regards death or injury resulting in a road accident sections 140 and 163A of the Motor Vehicles Act, 1988
provide for compensation to the extent of the amounts specified therein on no fault liability.3 Till recently it was
understood that in other cases damages can be allowed only on proof of negligence. It has, however, been recently
held that the strict liability rule of Rylands v. Fletcher , will apply to road accidents arising out of use of Motor
Vehicles. 4
4(C) Innkeepers and Hotelkeepers
An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travellers and
passengers, their horses and attendants, for a reasonable compensation. 5 A person who keeps a mere private
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boarding or lodging-house is not an innkeeper. 6 A lodging-house keeper makes a contract with every man that
comes; whereas an innkeeper is bound, without making any special contract, to provide lodging and entertainment
for all, at a reasonable price. 7 A hotel may be treated as an inn and the hotelkeeper may be liable as innkeeper. 8
Duties.— An innkeeper is bound to take in all travellers and wayfairing persons, if he can accommodate them; and
he must guard their goods with proper diligence. If an innkeeper improperly refuses to receive or provide for a guest
he is liable to be indicted therefor. 9 But if all the rooms of an inn be full, the innkeeper is under no obligation to
provide a traveller with a shelter and accommodation. The common law liability of an innkeeper to provide
accommodation continues so long as the guest is only a traveller. 10 In the case, therefore, of a person wishing to
reside at a hotel the proprietor is not bound to allow him to remain after reasonable notice to quit has been given.
11
Refusal to accomodate traveller.— The Imperial Hotels Ltd. owned two hotels in the same vicinity. Constantine, a
coloured cricketer asked for accommodation at one of them and was refused, but he was supplied with
accommodation at the other. It was held that the hotelkeeper was in breach of his duty at common law and was
liable without proof of actual damage. 12
Liability. —An innkeeper is liable for the safety of the goods which are brought within the inn. It is no excuse for the
innkeeper that he delivered to the guest the key of the chamber in which he is lodged, and that he left the chamber
door open. 13 The responsibility of an innkeeper for the safety of a traveller's property begins at the moment when
the relation of guest and host arises, and that relation arises as soon as the traveller enters the inn with the
intention of using it as an inn, and is so received by the host. It does not matter that no food or lodging has been
supplied or found up to the time of the loss. It is sufficient if the circumstances show an intention on the one hand to
provide and on the other to accept such accommodation. Where a traveller is provided with accommodation and
refreshment in an inn, the fact that the expenses thereof are by agreement between the innkeeper and another
person to be paid for by that other person does not prevent the relation of innkeeper and guest from arising, and the
innkeeper, therefore, incurs the customary liability for the safe custody of the traveller's goods in the inn. 14
An innkeeper is not liable if the guest's servant or friend steals or carries away his goods. He is not an insurer of the
goods of his guest, but is liable for negligence. 15
The liability of the landlord of a boarding house in respect of luggage is not coextensive with the liability of an
ordinary innkeeper. But there is a duty on the part of a boarding-house keeper to take reasonable care for the
safety of property brought by a guest into his house. 16 An innkeeper is bound only to supply such accommodation
for the goods of his guests as he possesses, and is not responsible for damage to those goods unless he is in
default. 17
The liability of an innkeeper with respect to the personal safety of his guest is less onerous. He does not insure the
personal safety of the guest. The reason for the grave liability in the case of goods is to be found in the social
conditions which existed when the liability first became established. The prevalence of highway robbery and the risk
of possible collusion between the thief and the innkeeper account for the onerous burden on the latter with respect
to goods. The guest is an invitee, and the innkeeper, as the occupier of premises to which he has invited the guest,
is bound to take reasonable care to prevent damage to the guest from unusual danger which the occupier knows or
ought to know of. But further, by reason of the contractual relationship existing between an innkeeper and a guest in
the inn, there is an implied warranty by the innkeeper that the inn premises, are, for the purpose of personal use by
the guest, as safe as reasonable care and skill in the part of any one can make them, but the innkeeper is not
responsible for defects which could not have been discovered by reasonable care or skill on the part of any person
concerned with the construction, alteration, repair or maintenance of the premises. 18 Thus the contractual
relationship puts on an innkeeper a greater obligation than exists with respect to a mere invitee.
It is doubtful whether common law liability of an innkeeper in respect of goods applies to a hotel in India. 19
However, dealing with a five star hotel in the context of personal safety of a guest it was observed by LAHOTI J. (as
he then was): “A five star hotel charging a high or fancy price from its guests owes a high degree of care to its
guests as regards quality and safety of its structure and services it offers and makes available. Any latent defect in
its structure or service, which is hazardous to guests, would attract strict liability to compensate for consequences
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flowing from its breach of duty to take care-and an obligation to pay exemplary damages—A five star hotel cannot
be heard to say that its structure and services satisfied the standards of safety of the time when it was built or
introduced. It has to update itself with the latest and advanced standard of safety.” 20
Theft of horse. —In Claye's case it was held that an innkeeper who, at the request of his guest, sent his horse to
pasture and the horse was stolen, was not liable for the loss. 21
Theft of overcoat .—The plaintiff, being on his way from his place of business in Liverpool to his home outside the
town, went into the dining-room of an hotel in Liverpool, kept by the defendants, to get a meal, and put his overcoat
in a place where coats were ordinarily kept in that room. The coat was missing when he finished his meal. It was
held that there was no sufficient evidence to establish the relation of innkeeper and guest between the defendants
and the plaintiff so as to make them liable for the loss of the coat without proof of negligence on their part. 22
Theft of fur cap. —The plaintiff was a guest at a small hotel owned and managed by the defendant. The door of the
room she occupied was not fitted with a lock and could not be secured. On mentioning this matter to the defendant,
she was assured that it would be quite safe for her to leave her belongings in the bedroom. While the plaintiff was
absent, her valuable fur cap, which she had left in the bedroom, was stolen. It was held that the loss of the fur cap
was not due to the plaintiff's failure to take the ordinary care which a prudent person would take, and the plaintiff
was entitled to recover damages for her loss. 23
Theft of ring. —The plaintiff and her husband arrived at the defendants’ hotel and engaged a room. The plaintiff put
her diamond ring which she was wearing into a jewel-case and placed that in her suitcase, which she latched but
did not lock. When they went to dinner the husband locked the room and took the key with him. After dinner, they
returned to their room, and on leaving it to go to a dance the husband again locked it and handed the key in at the
hotel office. They returned very late and got the key from the hall porter. Next morning the plaintiff opened her
suitcase and jewel-case and found that the ring was missing. There was a notice in the room that all articles of
value should be deposited at the office. In an action by the plaintiff it was held that she had taken reasonable care
of the ring and the fact that she had not deposited the ring at the office in compliance with the notice did not imply
that she had retained the protection of it in her own hands to the relief of the defendants, and that the defendants
were liable. 24
Theft of jewellary .—A notice in the bedroom of a private residential hotel stated: “The proprietors will not hold
themselves responsible for articles lost or stolen, unless handed to the managers for safe custody. Valuables
should be deposited for safe custody in a sealed package and a receipt obtained.” A notice pursuant to s. 3 of the
Innkeepers’ Liability Act, 1863, was conspicuously displayed in the hall of the hotel. It was found that the house was
not an inn at common law. A man and his wife, on arrival at the hotel as guests, in accordance with the custom of
the hotel, paid for a week's board and residence in advance. They then went upstairs to the bedroom allotted to
them, where the first-mentioned notice was displayed. It was held that the terms of the notice in the bedroom
formed no part of the contract made between the guests and the proprietors of the hotel. The contract had been
made before the guests could see the notice. It was for an indeterminate period, to which an end could be put by
notice on either side, and the terms of the notice in the bedroom could form no part of the contract until that contract
had been so terminated. 25
Injury to guest.— The plaintiff became a guest for reward to the defendant at his hotel, and was given a room on the
second floor. Soon after midnight a fire arose in the upper part of the building. The plaintiff was unaware of the
position of the staircase, and sought to escape from her room by means of a rope made of sheets and blankets.
She fainted when making her descent, and fell upon a glass roof below, whereby she suffered severe injuries. In an
action against the defendant for negligence it was held that, as he had omitted to make such inquiries as would
have revealed to him the defects in his structure and the risks of fire thereby occasioned, he was liable. 26 The
plaintiff was a guest at the defendants’ hotel in London. At night he returned to his room and desired to use the
lavatory. He had ascertained during day light that the lavatory was diagonally across the passage from his room
door, and, as the passage was unlighted he crossed it in the dark and by feeling his way came to a door which he
believed to be that of the lavatory but was in fact a door leading to the basement. Opening and passing through his
door the plaintiff immediately fell down a flight of steps and sustained injury. It was held that the defendants owed to
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the plaintiff, as an invitee, a duty to take all reasonable care to see that the premises were safe; that their failure to
light the passage was breach of the duty which had resulted in injury to the plaintiff; and that the plaintiff was
entitled to recover damages, either on the ground of negligence or breach of warranty. 27
Injury to guest in a swimming pool.— The plaintiff a guest in a five star hotel in August, 1972 while diving in the
swimming pool of the hotel hit his head at the bottom and suffered serious injuries and died as a result of the
injuries during the pendency of the suit which he filed for damages. The swimming pool constructed in 1965 did not
provide a safe depth of water at the plummet point atleast according to the standards prevailing from 1970. It was
held that a five star hotel was expected to update itself with latest and advanced standards of safety and the hotel
was liable, the swimming pool being a trap on account of its having a latent hazard in structure and designing. 28
Damage to goods. —The plaintiff, a guest at the defendants’ inn, put his motorcar in the inn garage, which garage
was open on one side. In consequence of an unusually severe frost, water in the engine froze and injured it. It was
held that the defendant was not liable. 29
Coach parked outside inn. —Mere permission (which is not an invitation) given by an innkeeper to a guest to park a
motor vehicle belonging to him in a place which is outside the actual “hospitium” of the inn does not extend the
“hospitium” pro hac vice (for this occasion only) so as to render the innkeeper liable for the loss of the vehicle or for
damage done to it. 30
Theft of motor-car from car park of inn.— The plaintiff, a farmer, who lived about a mile from the defendent's inn,
had been accustomed to visit the inn on several evenings each week to meet his friends and drink with them.
Having spent the day on business in a town some three miles from the inn, he drove in his motor-car to the inn,
passing his own house on the way. On arrival he placed the car in the car park in front of the inn, but when he left
the inn at closing time the car was found to have been stolen. He claimed to recover from the defendant, as the
keeper of a common inn, the agreed value of the motor-car. It was held that any person who came to an inn for the
purpose of receiving such accommodation as the innkeeper could give him and he was ready to pay for, and who
was so received by the innkeeper, was a traveller and entitled to the protection given by the common law to a
guest, even though he was a local resident and came for no more than temporary refreshment and did not intend to
stay the night in the inn. 31
4 (D) Physicians and Surgeons 4(D)(i) General principles
Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of
care and skill. A surgeon does not undertake that he will perform a cure; nor does he undertake to use the highest
possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he
undertakes to bring a fair, reasonable, and competent degree of skill; and in an action against him by a patient, the
question is whether the injury complained of must be referred to the want of a proper degree of skill and care in the
defendant or not. 32 In a suit for damages against a doctor the onus is upon the plaintiff to prove that the
defendant was negligent and that his negligence caused the injury of which the plaintiff complained. 33 A doctor
when consulted by a patient owes him certain duties, viz. , a duty of care in deciding whether to undertake the case,
a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach
of any of these duties gives a right of action for negligence to the patient. 34 The doctor has a discretion in
choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of
emergency. 35 The doctor “must bring to his task a reasonable degree of skill and knowledge and must exercise a
reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the
light of the particular circumstances of each case is what the law requires.” 36 The Supreme Court in Achutrao
Haribhau Khodwa v. State of Maharashtra 37 laid down the law as follows: “The skill of medical practitioners differs
from doctor to doctor. The very nature of the profession is such that there may be more than one course of
treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on
the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical
opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a
doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on
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the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it
would be difficult to hold the doctor to be guilty of negligence.” 38 The Supreme Court has also held that the
principle of res ipsa loquitor may apply in certain cases. 39 In the case of Achutrao a mop (towel) was left inside a
woman's peritoneal cavity while she was operated for sterilization in a Government hospital causing peritonitis
which resulted in her death. The conclusion of negligence was drawn against the doctors by applying the principle
of res ipsa loquitor and the Government was vicariously held liable. 40 If the initial burden of negligence is
discharged by the claimant, it would be for the hospital and the doctor concerned to substantiate their defence that
there was no negligence and the burden is greater on the hospital/institution concerned than on the claimant. 41
The Supreme Court has also deprecated the practice of doctors and certain government institutions to refuse even
primary medical aid to the patients and referring them to other hospitals simply because they are medico legal
cases. 42
Under English law as laid down in Bolam's case a doctor, who acts in accordance with a practice accepted as
proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes
a contrary view. 43 In Bolam's case, 44 MC NAIR, J., in his summing up to jury observed: “The test is the standard
of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest
expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent
man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with
the standards of reasonably competent medical men at the time. There may be one or more perfectly proper
standards, and if he conforms with one of these proper standards, then he is not negligent.” 45 The above test laid
down by MC NAIR, J., has been repeatedly approved by the HOUSE OF LORDS. 46 and has also been
approvingly referred to by the Supreme Court. 47 In Jacob mathew v. State of Punjab , 48 the Supreme Court
said: “The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt
with in several judicial pronouncements, one after the other and has continued to be well received by every shore, it
has touched as neat clean and a well-condensed one.” 49 The test “holds good in its applicability in India.” 50 The
principles stated in Jacob Mathew have been reiterated in Martin F.D’ Souza v. Mohd. Ishfaq 51 and INS Malhotra
v. Dr. A Kriplani . 52 The test covers the entire field of liability of a doctor namely liability in respect of diagnosis; 53
liability in respect of a doctor's duty to warn his patient of risks inherent in treatment; 54 liability in respect of
operating upon or giving treatment involving physical force to a patient who is unable to give his consent; 55 and
liability in respect of treatment. 56 The question of consent in India is also governed by the Bolam test as
elaborately laid down in the case of Samira Kohli v. Prabha Manchanda . 57
In Martin F. D'souza v. Mohd. Ishfaq 58 the Supreme Court surveyed the entire case law and reiterated the
principles which were stated in Jacob Mathew's case. In this case the claimant complained of deafness because of
negligence of the doctor in administration of overdose of amikacin injection. On appreciation of evidence the
negligence of the doctor was negatived. The court in addition to reiterating the principles relating to medical
negligence issued the following general direction 59 :
“ 106 We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer
Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or
hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the
matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical
negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of
medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid
harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not
to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew
case , otherwise the policemen will themselves have to face legal action.”
In Maynard v. Midlands Regional Health Authority , 60 the plaintiff was treated for chest ailment by two consultants
of the defendant Health Authority. The consultants thought she was suffering from tuberculosis but they also
considered the possibility that she might be suffering from Hodgkins disease. They decided upon an exploratory
operation for Hodgkins disease before obtaining the result of test for tuberculosis. As a result of the said operation
performed by one of the consultants, it was found that she was suffering from tuberculosis and not from Hodgkins
disease. As a result of the operation, however, the plaintiff suffered damage to a nerve of the vocal chord which
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impaired her speech. This damage was an inherent risk of the operation. The plaintiff brought a suit claiming
damages against the Health Authority on the ground of negligence of the consultants in that they decided upon the
exploratory operation for Hodgkins disease before obtaining the result of the test for tuberculosis. On the evidence it
was found that Hodgkins disease was an extremely dangerous disease, that the exploratory operation for
confirming it was a reasonably safe procedure though like all operations it had its hazards and that the menace of
the disease was so great that it was not unreasonable not to wait for the result of the test for tuberculosis. The
HOUSE OF LORDS (LORD SCARMAN) in upholding the finding of the Court of Appeal that negligence was not
established, observed: “It is not enough to show that there is a body of competent professional opinion which
considers that theirs’ (consultants’) was a wrong decision, if there also exists a body of professional opinion, equally
competent, which supports the decision as reasonable in the circumstances. It is not enough to show that
subsequent events show that the operation need never have been performed, if at the time the decision to operate
was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as
proper. A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality.
Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is
seldom any one answer exclusive of all others to problems of professional judgment. A Court may prefer one body
of opinion to the other, but that is no basis for a conclusion of negligence.” 61
The professional opinion relied upon by the defendant in cases of diagnosis and treatment must be reasonable or
responsible. If it is not so demonstrated to the satisfaction of the court, the defendant can properly be held liable
despite a body of professional opinion sanctioning the defendant's conduct though such cases would be rare. It was
so held by the House of Lords in Bolitho v. City and Hackney Health Authority . 62 In the words of LORD
BROWNE-WILKINSON: “In the vast majority of cases the fact that distinguished experts in the filed are of a
particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of
assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view
necessarily presupposes that relative risks and benefits have been weighed by the experts in forming their opinion.
But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical
analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.” 63
In Sidaway v. Bethlem Royal Hospital Governors , 64 the plaintiff who suffered persistent pain in her neck and
shoulders was advised to have an operation on her spinal column. The plaintiff was warned by the Surgeon of the
possibility of disturbing a nerve root and its possible consequences but the surgeon did not mention the possibility
of damage to spinal cord the risk of which was very small, only 1%. Unfortunately, though the operation was
performed with due care, the plaintiff suffered injury to her spinal cord which made her severely disabled. In a suit
for damages the plaintiff contended that the Surgeon had been in breach of a duty owed to her to warn her of all
possible risks inherent in the operation and so her consent for the operation was not an informed consent. In
dismissing the claim, the HOUSE OF LORDS held that the test of liability in respect of a doctor's duty to warn his
patient of risks inherent in treatment recommended by him was the same as the test applicable to diagnosis and
treatment, namely that the doctor was required to act in accordance with a practice accepted at the time as proper
by a responsible body of medical opinion and as the Surgeon's non-disclosure of the risk of damage to the plaintiff's
spinal cord accorded with a practice accepted as proper by a responsible body of neuro-surgical opinion the
defendants were not liable to the plaintiff. Applying the same test, it was held in Gold v. Harrington Health Authority
, 65 that omission of a surgeon to give a warning to the plaintiff before performing a sterilization operation that
there was a risk of its failure did not amount to negligence and the plaintiff was not entitled to sue for damages
when she became pregnant as a result of the failure of the operation. It was pointed out that failure rate of
sterilization operation was 20 to 60 per 10,000 and in 1979 when the operation was performed a substantial body of
responsible doctors would not have warned of the risk of failure of the sterilization operation. The court
distinguished its earlier decision in Thake v. Maurice , 66 where it was held to have been negligent on the part of a
surgeon undertaking a vasectomy not to warn the risk of its failure, on the ground that there was no independent
medical evidence called by either side in that case to show as to what was the practice accepted by the surgeons
generally at the time of operation. But when questioned by a patient about the risks involved in the treatment the
doctor must truthfully inform him of all the risks involved. 67 In Chester v. Afsher, 68 the claimant patient
underwent surgery for removal of three intraverbal discs as a cure for severe back pain. Although the claimant had
questioned the surgeon she was not told about the known risk (1% to 2%) of nerve damage resulting in paralysis
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which she suffered after the operation. Had she been told about this risk she would not have atleast then
undergone the operation. On these facts the claimant was held entitled to damages. There was a breach of duty on
the part of the surgeon in not informing the patient of the risk but the patient would have remained remedyless, had
the conventional but for test were applied, therefore, in the special circumstances of the case and to prevent
injustice that test ws not applied.
In an Australian case 69 relating to breach of duty in ‘failure to warn’, the plaintiff Mrs. Hart was suffering from
persistent sore throat. Dr. Chappel, whom she consulted diagnosed a pharyngeal pouch in her oesophagus and
recommended surgery. Dr. Chappel, however, failed to inform her of the small, but known risk of infection and
damage to vocal cords resulting in voice loss though she had expressed her concern about it. Inspite of there being
no negligence in performing the surgery, the risk materialised and Mrs. Hart suffered serious voice loss. The finding
was that had she been warned of the risk, she would have sought further advice and she would have wanted the
operation performed by the most experienced person available. On these facts the High Court of Australia by
majority upheld the decree for award of damages. The Australian case was referred with approval by the House of
Lords in Chester v. Afsher. 70
4D(ii) Treatment of patients incapable of giving consent
At common law, a doctor cannot lawfully operate on adult persons of sound mind or give them any other treatment
involving the application of physical force without their consent for otherwise he would be liable for the tort of
trespass. 71 But when a patient is incapable, for one reason or another, of giving his consent, a doctor can lawfully
operate upon or give other treatment provided that the operation or the other treatment concerned is in the best
interests of the patient if, but only if, it is carried out in order either to save his life or to ensure improvement or
prevent deterioration in his physical or mental health. The test here also in determining liability would be whether
the doctor acted in accordance with the practice accepted at the time by a responsible body of medical opinion
skilled in the particular form of treatment. Prior consent or approval of the court for giving the treatment is not
necessary. But in the case of a patient of unsound mind, the court may entertain a petition for declaration that a
proposed operation or treatment on the patient may be lawfully performed. These principles were laid down by the
House of Lords in F. v. Berkshire Health Authority , 72 This was a case where a mentally handicapped woman,
who was an inpatient in a mental health hospital, was having sexual relations with a male patient in the same
hospital and an application to the court was made for permitting sterilization operation which was held to be in the
best interests of the patient. The sterilization operation of a minor is also governed by the same principles. 73
Indeed according to the current position in England the sterilization of a minor or a mentally incompetent adult will in
virtually all cases require the prior sanction of a High Court judge. 74
In Samira Kohli v. Prabha Manchanda , 75 the appellant was admitted for diagnostic laparoscopy (and at best for
limited surgical treatment that could be made by laparoscopy). During the diagnostic laparoscopy when the doctor
found that the appellant was suffering from endometriosis, the doctor performed hysterectomy (removal of uterus)
and bilateral salpingo-oophorectomy (removal of ovaries and fallopian tubes). For this treatment no consent of the
appellant was taken on the ground that she was unconscious being under general anesthesia and the consent of
her mother was taken. The court found that this was not a case of emergency and the doctor should have waited for
the appellant to regain consciousness and then asked for her consent. On these facts the consent taken was found
to be defective. As a result damages to the extent of Rs. 25,000/- were allowed to the appellant and the doctor was
deprived of the fees for the treatment although the doctor was not found to be negligent in any other respect.
Similar principle has been applied in judging the legality of withdrawal of treatment of an insensate patient who has
no chance of recovery. The principle of self-determination, i.e. , respect for the wishes of the patient has given rise
to the rule that if an adult patient of sound mind and properly informed requires that the life support system be
withdrawn the doctors responsible for his care must give effect to his wishes. 76 In cases of this kind the patient
cannot be said to have committed suicide nor the doctors can be said to have aided or abetted him in doing so. The
patient exercises his right of declining treatment and the doctor complies with the patient's wishes which he is under
a duty to do. But when a doctor has in his care a patient who is incapable of deciding whether or not to consent to
treatment, what has the doctor to do? This question was answered in Airedale NHS Trust v. Bland 77 and it was
held that the doctor in such cases is under no absolute obligation to prolong the patient's life regardless of the
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circumstances or the quality of his life. If responsible and competent medical opinion is of the view that it would be
in the patient's best interests not to prolong his life because such continuance would be futile and would not confer
any benefit on him, medical treatment including artificial feeding, and administration of drugs can be lawfully
withheld from an insensate patient with no hope of recovery even though it is known that the result of withdrawal of
treatment would be that the patient would shortly thereafter die. Withdrawal of life support system in such cases
does not amount to any criminal act for the doctor acts in the best interests of the patient, and the death of the
patient is regarded as having been exclusively caused by the injury or disease with which he was suffering. It was
also held in this case that the doctors should as a matter of practice seek the guidance of the court by applying for
declaratory relief before withdrawing life support system from an insensate patient. It was further held that
euthanasia by means of positive steps, e.g. , by administration of drugs to end a patient's life is unlawful. The
patient in this case had been in a persistent vegetative state for three and half years after suffering severe crushed
chest injury which caused irreversible damage to the higher functions of the brain and there was no hope of
recovery or improvement of any kind. On an application by the health authority responsible for the care of the
patient for a declaration that treatment could be lawfully withdrawn the Court granted the declaration. The current
opinion in England is that the termination of artificial feeding and hydration for patients in a persistent vegetative
state (PVS) will in virtually all cases require the prior sanction of a High Court judge. 78 It has also been held that
withdrawal of treatment in accordance with the ruling in Bland's case does not violate right to life or other rights
enumerated in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 now
enforced in England by the Human Rights Act, 1998. 79
Under the common law a minor, who is capable of making a reasonable assessment of this advantages and
disadvantages of a treatment advised by a physician or surgeon, is competent to give consent for the treatment. 80
The Parliament (U.K.) has also intervened by section 8 of the Family Law Reform Act of 1969 which enacts that
consent of a minor, who has attained the age of sixteen years, to any treatment will obviate the necessity to obtain
any consent for it from his parent or guardian. But in case of refusal by such a minor to give his consent, the court,
in the exercise of its inherent wardship jurisdiction over minors, may override the wishes of the minor if it finds that
objectively considered, refusal of medical treatment in the circumstances of the case would in all probability lead to
the death of the minor or to some permanent injury and the treatment would be in the minor's best interests. 81 In
case of a minor who has not attained sufficient intelligence and understanding doctors owe a duty of care for him in
accordance with good medical practice recognised as appropriate by a competent body of professional opinion.
This duty is, however, subject to the qualification, that if time permits, they must obtain the consent of the parents
before undertaking any serious treatment involving risk of injury to the minor. The parents owe the child a duty to
give or to withhold consent in the best interests of the child and without regard to their own interests. In case of
refusal by the parents the court, when approached in the parens patriae jurisdiction, takes over the rights and duties
of the parents and has to decide as to what course would be in best interests of the child. But in reaching the
ultimate decision the court will consider various circumstances including the wishes of the parents and may have to
do a balancing exercise in assessing the course to be adopted. These principles laid down by Lord Donaldson M.R.
in Re J (a minor) (wardship medical treatment ) 82 were reiterated by the Court of Appeal in Re J (a minor)
(wardship medical treatment ). 83 In this case a child who was born with a life-threatening liver was advised liver
transplant by consultant paediatricians but the mother did not give her consent because she was not willing to
permit the child to undergo the pain and suffering of invasive surgery. On being approached by the local authority,
at the instance of the consultants for grant of permission, the trial judge granted the permission. But on mother's
appeal the court of appeal having regard to all the circumstances allowed the appeal and declined to grant the
permission.
In a unique case 84 relating to conjoined twins the court of appeal was faced with the difficult task of balancing the
right to life of each twin in granting permission for surgical operation to separate them. The twins were conjoined at
abdomen. One of the twins J was capable of independent existence but the other twin M was alive only because a
common artery enabled J to circulate oxygenated blood for both of them. In the absence of operation both were
likely to die in three to six months. The operation would have inevitably resulted in the death of M but would have
enabled J to lead a relatively normal life. The parents refused to give permission for the operation and the hospital
caring for the twins applied for permission to operate. Though each of the twins had right to life, the court of appeal
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confirmed the trial judge's order for permitting the operation after carrying out a balancing exercise and choosing
lesser of the two evils.
On the question of self determination it has been held by the Court of Appeal 85 that prima facie every adult had
the right to decide whether he would accept medical treatment even if a refusal might risk permanent injury to his
health or cause premature death. But if the patient had no capacity to decide at the time of refusal either because of
the ailment or because of undue influence by others, it was the duty of the doctors to treat him in whatever way they
considered to be in his best interests. 86 The doctors or the hospital authorities may also in such a case, where the
refusal of treatment may be life threatening or likely to cause irreparable serious damage to the patient's health,
apply for a declaration to the Court. 87
In Glass v. United Kingdom 88 decided by the Europeon Court of Human Rights, the facts were “disturbing and
unbelievable”. David Glass a 12 year old child who was severely mentally and physically handicapped was rushed
to hospital as he suffered acute respiratory failure. The doctors told the child's mother that her son was dying and
they needed to administer diamorphine to ease his distress. The mother strongly disagreed. But the doctors against
the mother's wishes administered diamorphine. Some members of the family attacked the doctors and during the
ensuing tumult the mother successfully resuscitated the child who had seemed to have stopped breathing. The
child sufficiently recovered and was discharged into home care on that very day. The European Court of Human
Rights, on these facts, awarded 10,000 Euros as non-pecuniary damage. The case is a pointer that if a child patient
is unable to give consent and the guardian declines to give consent for treatment, as thought proper by the doctors,
they should either decline to give that treatment or apply to the court for directions for the treatment.
4(D)(iii) No team liability
The law in dealing with cases of negligence of doctors does not recognise any doctrine of team liability and the
case of each doctor in the team has to be considered separately. It was so held in Wilsher v. Essex Area Health
Authority , 89 where the plaintiff an infant who suffered near blindness sued for negligence while he was placed
after premature birth in 24 hour special care unit of the defendant hospital. A junior doctor inserted a catheter to
monitor oxygen but the catheter was inserted in a vein in place of an artery. The junior doctor consulted the senior
doctor who failed to detect the mistake and he himself committed the same mistake while replacing the catheter.
The excess oxygen given as a result of the mistake could have caused damage to the retina resulting in near
blindness. The junior doctor was held not to have been negligent as he consulted the senior doctor. But the senior
doctor was held to be negligent in not being able to detect the mistake and in repeating the same mistake. The
defendant was vicariously held liable for the negligence.
4(D)(iv) Some more examples
The casualty officer in a hospital, which is open for receiving patients, who fails to see and examine a person would
be negligent inasmuch as he does not discharge the duty of care owed by the hospital authority to the person who
suffers by his negligence. 90
Negligent operation or administration of drug. —The plaintiff brought an action against the Governors of a hospital
for damages for injuries alleged to have been caused to him during an operation by the negligence of some
member of the hospital staff. It was held that the action was not maintainable. 91 This decision has been severely
criticised in a later case where it is held that a local authority carrying on a public hospital owes to a patient the duty
to nurse and treat him properly, and is liable for the negligence of its servants even though the negligence arises
while a servant is engaged on work which involves the exercise of professional skill on his part. Where, therefore,
an infant plaintiff was treated in such a hospital by a competent radiographer in the employ of the hospital and by
reason of his failure to use adequate screening material in giving Grenz-ray treatment, the infant plaintiff suffered
injury to her face, it was held that as the radiographer was a whole-time employee of the hospital, the local authority
was liable for his negligence under the doctrine of respondeat superior . 92 The same duty and liability is owed by
and attached to the Governor of a voluntary hospital, whether he rendered the services gratuitously or for reward.
93 The current position in this context was stated by DENNING, L.J., as follows: “The hospital authorities are
responsible for the whole of their staff, not only for the nurses and doctors, but also for the anaesthetists and the
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surgeons. It does not matter whether they are permanent or temporary, resident or visiting, whole-time or part-time.
The hospital authorities are responsible for all of them. The reason is because, even if they are not servants, they
are the agents of the hospital to give the treatment. The only exception is the case of consultants and anaesthetists
employed by the patient himself.” 94 The plaintiff's wife, who had been admitted to a hospital to undergo an
operation, lost her life owing to an overdose of a dangerous drug administered to her just before the operation by
two nurses at the hospital. The overdose was due to a mistake on the part of the nurses in reading the amount
ordered by the doctor to be administered. The plaintiff brought an action against the nurses and the hospital
authority. It was held that the nurses were guilty of negligence and were liable, but that the hospital authority was
not liable asprincipals for the nurses’ negligence, the only duty resting on the hospital being to see that the nurses
who were engaged were duly qualified. 95 It is submitted that according to modern view which prevails after Gold's
case, 96 the hospital authorities should have been held liable. At the end of an abdominal operation a swab which
had been used by surgeon to pack off adjacent organs from the area of the operation was left in the patient's body,
with the result that three months later he died. It was held that there was no general rule of law which required a
surgeon at the end of an operation such as the one in question, after removing all the swab of which he was aware,
to make sure that no swab had been left in the patient's body, that the question whether or not the omission by a
surgeon to remove a swab constitutes failure by him to exercise reasonable skill and care must be decided on the
evidence given in a particular case; that the doctrine of res ipsa loquitur applied, so as to shift the burden of proof to
the defendant. 1
Negligence of maternity home to give warning of infectious disease .—The plaintiff entered the defendant council's
maternity home for her confinement. Two cases of puerperal fever had occurred in the home and certain
disinfecting precautions were taken by the medical officers but the plaintiff was not informed of this by the matron.
The plaintiff developed puerperal fever and suffered a severe illness. She brought an action against the county
council to recover damages for negligence and breach of duty on the part of the council and those for whom they
were responsible. It was held that she was entitled to recover on the ground that the defendants ought to have
known that the home was dangerous and had failed to take reasonable steps to prevent damage to the plaintiff from
the danger. 2
Negligence of surgeon .—The plaintiff, who was suffering from a contraction of third and fourth fingers of his left
hand, was operated on at the defendant's hospital by a surgeon. After the operation, the plaintiff's hand and forearm
were bandaged to a splint and they remained so for fourteen days. During this time the plaintiff complained of pain,
but, apart from ordering the administration of sedatives, no action was taken by the surgeon. When the bandages
were removed, it was found that all four fingers of the plaintiff's hand were stiff and that the hand was practically
useless. It was held that the defendants were liable for the negligence of the surgeon. 3 A very promising young
boy of 17 was admitted in a Government hospital for removal of tonsils. As a result of the negligence in the
administration of anaesthesia during the operation, the patient became victim of cerebral anoxia making him
dependant on his parents. The anesthetist, the surgeon and the Government were all held liable for damages to the
plaintiff. 4 When an injection meant for intramuscular use was administered as an injection intravenus in a
Government hospital resulting in the death of the patient, the Government was held liable in public law for damages
under Article 226. 5
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, 6 the complainant who was then an engineering
student suffered from recurring fever. The X ray examination revealed tumour in left hemithorax with erosion of ribs
and vertebra. Even then without having MRI or Myelography done, cardiothororacic surgeon excised the tumour
and found vertebral body eroded. Operation resulted in acute paraplegia of the complainant. MRI or Myelography at
the pre-operation stage would have shown necessity of a neurosurgeon at the time of operation and the paraplegia
perhaps avoided. Consent was not taken for removal of tumour but only for excision biopsy. The hospital and the
surgeon were held liable for negligence. When the matter reached the Supreme Court the complainant who was
then 40 was gainfully employed as IT Engineer. The nature of his work required him to travel to different locations
but as he was confined to a wheelchair he was unable to do so on his own and needed a driver-cum-attendant.
Presuming his working life to be sixty years the Court awarded a sum of Rs.2000/- per month for 30 years under
this head which was capitalised to a sum of Rs.7.2 lakhs. The complainant was further awarded a sum of
Rs.14,40,000 to cover expenses for a nurse and Rs.10,80,000 to cover expenses on physiotherapy for 30 years. In
addition the complainant was allowed Rs.50 lakhs for medical expenses and loss of earnings and Rs.10 lakhs
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towards pain and suffering. The total amount of compensation thus allowed was Rs.1 crore with interest at 6% till
the date of payment giving due credit for any compensation already paid.
4(D)(v) Euthanasia
A two judge bench of the Supreme Court held that a person has a right not to live a forced life and attempt to
suicide is not illegal. 7 But this view has been overruled by a constitution Bench of the Supreme Court. 8 The
result is that sections 306 and 309 of the Penal Code which respectively make attempt to suicide and abetment to
suicide punishable offences remain constitutionally valid. It is thus now clear that a doctor would be liable for
abetting suicide under S. 306 IPC, if he by taking positive steps, e.g. , by administration of drugs, although with the
consent of the patient, ends the patients life. To permit euthanasia is a matter of policy within the domain of the
legislature.
Under the English Law suicide is not an offence after 1961 but mercy killing in the form of euthanasia is murder and
assisted suicide is a statutory offence punishable by 14 years’ imprisonment. In R (on the application of Pretty) v.
Director of Public Prosecutions 9 the House of Lords recently held that the right to life and other human rights
enumerated in the European convention and enforced in England by the Human Rights Act, 1998 have not affected
the said law and that the convention did not oblige a state to legalise assisted suicide. Similar views have been
expressed in Canada 10 and the United States. 11
The Parliament of Australia's Northern Territory passed The Rights of the Terminally ill Act the world's first law that
permited medically assisted voluntary euthanasia. The law allowed the incurably sick to end their lives, provided
that a physician and psychiatrist determine the patient to be both terminally ill and sane. Passed 15 to 10, the
controvertial bill was dubbed by opponents the ‘Kill Bill’. This Act of the Northern Territory was, however, soon
overridden by the Euthanasia Act, 1997 enacted by the Commonwealth which took two steps. It removed the power
of the Northern Territory to make law permitting euthanasia and provided that the Rights of the Terminally ill Act had
no force or effect except as regards the law fulness or validity of anything done in accordance with it prior to the
commencement of the commonwealth law. 12 In Netherlands the Parliament enacted the Termination of Life on
Request and Assisted Suicide (Review of Procedures) Act, 2001, which formalises a relaxation of the law
prohibiting euthanasia and assisted suicide previously by judicial decision. The Act only permits euthanasia and
doctor-assisted suicide under a regime of ascertaining the wishes of the patient and with considerable medical
supervision. 13 In India so far no such legislation appears to be in contemplation. 14
4(E) Solicitors
Solicitors are persons of skill and knowledge, and like physicians undertake matters of the very highest difficulty
and importance. Ordinary neglect, where so great a care is demanded, becomes very grave.
A solicitor is liable for the consequences of ignorance or non-observance of the rules of practice of the Court; for the
want of care in the preparation of the cause for trial, or of attendance thereon with his witnesses; and for the
mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the
profession. 15 Solicitors and advocates are expected to know the latest relevant authority which has been reported
in law reports whether official or general. 16
A suit for damages against a solicitor on the ground that he failed to lodge and prosecute an appeal which would
have very likely resulted in reversal of a judgment against the plaintiff is not such a collateral attack on the judgment
as to amount to abuse of the process of the court and is maintainable. 17
A solicitor is liable if his client proves negligence operating to produce the loss of the cause, 18 e.g. allowing a claim
to be barred by limitation. 19 or struck out for failure to apply for a trial date within the prescribed period. 20 He is
also liable for the negligence of his agent 21 or partner. In Ross v. Counters , 22 the Solicitors’ negligence in not
noticing the mistake in attestation of a will which he was engaged to draw by the testator resulted in depriving the
plaintiff of her legacy on the testator's death and in a suit by the plaintiff claiming damages in negligence for the loss
of the bequest under the will, the solicitors were held liable. A solicitor who was instructed by the testator to prepare
a new will superseding an earlier will and who in breach of his professional duty and due to negligence failed to do
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so was held liable by the House of Lords in White v. Jones, in damages to a disappointed prospective beneficiary
when the testator died before the will had been prepared. 23 Similar view has been taken by the High Court of
Australia in Hill v. Van ERP. 24 In this case the solicitor had the will witnessed by the husband of the beneficiary
which made the will invalid according to the law of Queensland. It was held that the solicitor owed a duty of care to
the intended beneficiary which rendered her liable in negligence. In holding so BRENNAN C.J. observed: “If the
solicitor's carelessness results in loss of a testamentary gift intended to be given to a beneficiary, it is ultimately fair,
just and reasonable that the solicitor should be liable in damages to the intended beneficiary.” 25 In County
Personnel (Employment Agency) Ltd. v. Alan R Pulver & Co. (a firm) , 26 a solicitor was held liable for negligence
to his client for not alerting him as to the effect of an unusual clause in a lease while negotiating an underlease. But
a solicitor, who had acted for a testator in preparing a will, owes no duty of care to the beneficiary when he acts for
the testator in a subsequent transaction relating to a property covered by the will. 27
Where a solicitor is guilty of negligence or misconduct, the Court may order him to make good any loss occasioned
by such negligence or misconduct. 28 But, where the loss does not flow from his act or default, the Court will not,
merely because he has been guilty of misconduct, mulct him in damages. 29 A solicitor is liable for libelling his
client. 30
Except in the most exceptional circumstances a solicitor advising a partnership has no duty to communicate his
advice to all the partners; he only has to advice the partner who has the matter in hand on behalf of the firm. 31 A
solicitor acting as an Advocate in Court enjoys under the English law the same immunity as a Barrister. 32
A solicitor does not normally owe any duty of care to his client's opponent, but in special circumstances he may owe
such a duty. For example, when in a litigation between husband and wife relating to the custody of their children,
the husband's solicitors gave undertaking to the wife's solicitors not to release the husband's passport in which the
children's names were entered and the husband obtained the passport because of his solicitor's negligence which
enabled him to remove the children to Kuwait, the husband's solicitors were held liable in negligence to the wife. 33
A solicitor cannot be held liable for negligence in the conduct of either criminal or civil proceedings if it involved an
attack on the decision of a court of competent jurisdiction. So a plaintiff who was convicted by a criminal court on a
plea of guilty cannot sue his solicitors for damages that they were negligent in advising him to plead guilty. 34
There was no general rule that a solicitor should never act for both parties in a transaction where their interests
might conflict. In such a case he can act for both parties provided he obtained informed consent of both. 35 In a
case where a solicitor in the course of acting for both lender and borrower in a remortgage transaction discovered
information casting doubt on the borrower's ability to repay the loan and failed to report the information to the
lender, it was held that he was not in breach of any duty to the lender unless his instructions required him to do so.
36
4(F) Counsel
Till recently in England Barristers enjoyed immunity from being sued for professional negligence which was
reasoned on the basis of public policy and in public interest. 37 This immunity was extended to ’solicitor advocates
by section 62 of the Courts and Legal Services Act, 1990. But the House of Lords in Arthur JS Hall & Co. v. Simons
, 38 recently changed this law and held that now neither public policy nor public interest justified the continuance of
that immunity. Thus Barristers and solicitor advocates are now liable in England for negligence like other
professionals.
But a counsel was not held liable when the advice required and given at the door of the court was not sufficiently
detailed but substance of advice was not negligent. 39 The High Court of Australia still sticks to the view that
advocates and solicitors instructing advocates are not liable for professional negligence. 40
In India, section 5 of the Legal Practitioners (Fees) Act, 1926 provides that no legal practitioner who has acted or
agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any
loss or injury due to any negligence in the conduct of his professional duties. The expression legal practitioner
means “an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent”. After adverting to
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the provisions of the Act, the Supreme Court in M. Veerappa's case 41 held that an advocate who has been
engaged to act is clearly liable for negligence to his client. The Supreme Court, however, left open the question
whether an advocate who has been engaged only to plead can be sued for negligence. In Raman Services Pvt. Ltd.
v. Subash Kapoor 42 the Supreme Court held that if an advocate fails to appear due to strike call given by the bar,
he can be made liable for the costs which the litigant has to pay for setting aside an exparte decree . The court also
added that “the litigant who suffers entirely on account of his advocate's non-appearance in court, has also the
remedy to sue the advocate for damages.” 43 An advocate has also no lien over papers of his client for unpaid
fees and he cannot retain the files of his client; his remedy is only to sue for fees. 44
4(G) Bankers
With respect to money placed in their hands by their customers for the ordinary purposes of banking, bankers hold
themselves out as persons worthy of trust, and as persons of skill. Their duty, in respect of paying their customer's
cheques, is to honour them to any amount not exceeding the credit balance due to the customer from the banker at
any material time. 45 A failure to do so constitutes negligence and the bankers are liable in damages, which may
include damages for injury to the credit of the customer. A Banker is vicariously liable for the negligent act of its
employees done is the course of employment. 46
Liability of Banker for paying forged cheques.— Bankers are liable for negligence in paying forged cheques. They
are bound to exhibit skill in detecting such forgeries. If a man should lose his cheque-book or neglect to search the
desk in which it is kept, and a servant or stranger should take it up, it is impossible to contend that a banker paying
his forged cheque would be entitled to charge his customer with that payment. 47
In Young v. Grote , 48 it was held that negligence on the part of a customer in drawing a cheque disentitled the
customer from recovering the extra amount which was paid by the banker owing to the cheque being forged
afterwards. The HOUSE OF LORDS have affirmed its principle by holding that a customer of a bank owes a duty to
the bank in drawing a cheque to take reasonable and ordinary precautions against forgery, and if, as the natural
and direct result of the neglect of those precautions the amount of the cheque is increased by forgery, the customer
must bear the loss as between himself and the banker. 49 But it must be shown in order to hold the customer liable
for negligence in drawing cheques, that there was a breach of duty by the neglect of some usual and proper
precautions. 50 Another duty which a customer owes to his bankers is that he must inform the bank of any
unauthorised cheques purportedly drawn on the account as soon as he, the customer, becomes aware of it. 51
The existence of both these duties under the English law has been affirmed by the Privy Council, 52 but it has
further been held that the customer is not under a duty to take reasonable precautions in the management of his
business with the bank to prevent forged cheques being presented for payment nor is he under a duty to check his
periodic bank statements so as to enable him to notify the bank of any unauthorised debit items. 53 In this case, 54
an accounts clerk of the plaintiff forged the signature of the Managing Director of the plaintiff on 300 cheques
purporting to be drawn by the company between 1972 and 1978 and these cheques were paid by the defendant
bank on presentation. The plaintiff's system of internal financial control from the point of view of detecting fraud was
unsound and inadequate yet the defendant bank was held liable. Where a bank offered to give expert advice on
investments to its customers and loss was occasioned to a customer by advice given by the manager of the bank
which advice was given without ordinary care and skill that a bank manager should possess and exercise the bank
was held liable for loss. 55
The Calcutta High Court has held that where a banker makes a payment on a forged cheque, he cannot make the
customer liable except on the ground of negligence imputable to the customer. 56 If the signatures on the cheque
or at least that of one of the joint signatories to the cheque are not or is not genuine, there is no mandate on the
bank to pay. In such a case the question of any negligence on the part of the customer, such as leaving the cheque
book carelessly so that a third party can easily get hold of it can afford no defence to the bank. 57 In action in not
examining the accounts sent by the Bank when the customer had no knowledge of the forgery, cannot defeat his
claim against the Bank who has made payment on a forged cheque. 58 Where the only negligence imputed to the
customer was that he allowed his cheque-book to remain in an unlocked box, it was held that the customer was not
liable to be debited with the loss although one of the rules of business of the bank said that “constituents should
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keep all blank cheque forms under lock and key, otherwise the bank is not responsible for any loss in this
connection.” 59
If a banker fails to carry out the instructions of a customer he will be liable for negligence. For instance, if he issues
bank drafts without authority in accordance with the customer's instructions against valid cheques of the customer,
owing to the fraud of the customer's servant, he will be liable in damages in respect thereof. 60
Opinion as to creditworthiness.— If a banker gives a reference in the form of a brief expression of opinion in regard
to creditworthiness, he does not accept, and there is not expected of him, any higher duty than that of giving an
honest answer. 61 But if the circumstances are such that others could reasonably rely on the banker's skill or
ability to make careful inquiry before giving information or advice and they could be reasonably expected to rely on
the information or advice given, the banker may become liable for giving wrong information or advice negligently. 62
The payee of a demand draft sent it by unregistered post to his Calcutta office. During its transmission, a stranger,
having obtained wrongful possession, forged an endorsement and delivered it to the defendant bank for collection
and credit of the proceeds to his account. The bank got the draft cashed, credited the proceeds to the account of its
constituent and allowed him to withdraw the money. In an action by the payee for conversion, the bank contended
that it was an innocent agent and hence not liable, that there had been no conversion as the draft was already
considered to be cash in mercantile usage, that the bank merely returned it to the person from whom it received
and, further, inasmuch as the payee acted negligently in sending the draft by ordinary post, he was estopped from
recovering the amount. It was held that the bank was liable to the payee for conversion; and that the payee's
negligence, if any, was not the direct cause of the loss and that there was no estoppel. 63
Delivery of goods to wrong person.— Where the banker delivers the goods received by it on behalf its customer to
a wrong person whereby they are lost to the customer, “the liability of the bank is absolute, though there is no
element of negligence, as where the delivery is obtained by means of an artfully forged order. In law banker could
contract out of this liability but he would be unlikely to do so in practice.” 64
4(H) Manufacturers, repairers and builders
A manufacturer of an article of food, medicine or the like, sold by him to a distributor in circumstances which prevent
the distributor or the ultimate purchaser or consumer from discovering by inspection any defect is under a legal duty
to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause
injury to health. 65 In order to render a manufacturer liable to the ultimate purchaser, it is necessary that the article
must reach that purchaser in the form in which it leaves the manufacturer without opportunity for intermediate
examination. A manufacturer will not be liable where the retail dealer had an opportunity of inspection and could by
a simple test have ascertained the unsuitability of the goods for the purpose for which they were sold. 66 Where an
article supplied is known to be required for immediate use, the test of liability in an action for negligence causing a
defect in the article is not whether the injured party had an opportunity for intermediate examination of the article,
but whether such an examination could reasonably be anticipated by the person supplying it, who will be liable if no
such reasonable anticipation existed. 67 The scope of a manufacturer's duty of care does not extend beyond
consequences that are reasonably foreseeable and so if the damage suffered is not of a type which could be
reasonably foreseen by the manufacturer, he is not liable. 68
The principle laid down in Donoghue's case is that there can be no duty cast upon the vendor without proximate
relationship of which the main test is whether there is reasonable opportunity for examination between the time of
the sale or the doing of the work and the use or consumption of the article by the purchaser. The principle laid down
in Donoghue's case applies not only to manufacturers, but also to suppliers or repairers 69 or distributors 70 of
goods. The repairer of an article owes a duty to any person by whom the article is lawfully used to see that it has
been carefully repaired in a case where there is no reasonable opportunity for the examination of the article after
the repair is completed and before it is used, and when the use of the article by persons other than the person with
whom the repairer contracted must be contemplated or expected. 71 In the case of distributors it is necessary to
show that in some way they have been careless in their handling of the particular goods. Remedy by way of
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damages in tort extends to a negligent manufacturer causing monetary loss by the supply of a sub-standard article.
72
The principle of Donoghue's case has been applied to builders in recent years. In the words of LORD DENNING:
“The distinction between chattels and real property is quite unsustainable. If the manufacturer of an article is liable
to a person injured by his negligence so should the builder of a house be liable.” 73 In Anns v. Merton London
Borough , 74 LORD WILBERFORCE, with whom LORD DIPLOCK, LORD SIMON and LORD RUSSEL agreed,
observed: “If there was at one time a supposed rule that the doctrine of Donoghue v. Stevenson , (1932 AC 562 )
did not apply to reality, there is no doubt under modern authority that a builder of defective premises may be liable
in negligence to persons who thereby suffer injury.” 75 In Rimmer v. Liverpool City Council , 76 it was held by the
Court of Appeal that a landlord who also designed or built the premises owed in his capacity as designer or builder
a duty of care to all persons who might reasonably be expected to be affected by the design or construction of the
premises, the duty being to take reasonable care to see that such persons would not suffer injury as a result of
faults in the design or construction of premises. Further, in Junior Books Ltd. v. Veitchi Co. Ltd ., 77 the defendants
who were sub-contractors to lay a floor in the plaintiffs’ factory and who were not in contractual relationship with the
plaintiffs were held liable for defective flooring and for payment of damages for replacing the flooring and for other
items of consequential loss. Recent cases 78 have confined the liability in tort of a builder for a defect in the
building to physical injury to persons or damage to property (other than the building itself) caused by the defect
before it is discovered and have negatived the liability for pure economic loss.
Snail in ginger beer.— The plaintiff drank a bottle of ginger beer, manufactured by the defendants, which a friend
had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were
not detected until the greater part of the bottle had been consumed. The bottle was of dark opaque glass so that the
condition of its contents could not be ascertained by inspection. The plaintiff suffered from shock and severe gastro-
enteritis. In a suit by the plaintiff to recover damages it was held that the defendants were liable. 79
Dermatitis caused by woollen garments.— The plaintiff contracted dermatitis as the result of wearing a woollen
garment which, when purchased from the retailers, was in a defective condition owing to the presence of excess
sulphites which, it was found had been negligently left in it in the process of manufacture. The presence of the
deleterious chemical was a hidden and latent defect, and could not be detected by any examination that could
reasonably be made. The garment was made by the manufacturers for the purpose of being worn exactly as it was
worn in fact by the plaintiff. It was held that there was a duty to take care as between the manufacturers and the
plaintiff for the breach of which the manufacturers were liable. 80
Improper repair of motor wheel.— The owner of a motor lorry took the wheel of the lorry, the flange of which had
come off, to a motor repairer, with instructions to re-assemble it. The repairer's assistants re-assembled it and
replaced it on the lorry, and the lorry owner's servant drove the lorry away. An hour or two latter, the flange came off
while the lorry was being driven on the highway by the lorry owner's servant, and, bowling along the road, it
mounted the pavement and hit the female plaintiff, injuring her. It was held that the lorry owner having entrusted the
repair of the lorry to a competent repairer, he was not liable either for negligence or nuisance to a person who
suffered injury upon the road by reason of the competent repairer having been negligent; that the lorry owner was
not under a duty to ascertain for himself, whether the competent repairer had competently repaired the lorry; that
the repairer was liable to the person who suffered injury on the road as a result of his negligence, as he was in the
same position as that of the manufacturer of an article sold by a distributor in circumstances which prevented the
distributor or ultimate purchaser or consumer from discovering by inspection any defect in the article. 81
Improper repair of lift.— The plaintiff in the course of his duties went to visit a tenant residing in a flat in a block of
flats. He entered into a lift on the ground floor to go to the fifth floor where the tenant was living. The lift went as far
as the second floor and then fell to the bottom of the well and the plaintiff received serious injury. The lift was in the
charge of a company of lift engineers who for a periodic remuneration kept the lift in proper order and informed the
landlord of the block of flats if any repairs were necessary. The lift required some repairs and they were carried out
by an employee of the firm of engineers. In an action by the plaintiff it was held that whether the plaintiff was an
invitee or a licensee of the landlord the only obligation on the landlord was to take care that the lift was reasonably
safe and that he had fulfilled that obligation by employing a competent firm of engineers to look after the lift and
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that, therefore, the landlord was not liable but the engineers were liable as they owed a duty to the plaintiff to see
that the lift was carefully repaired when there was no opportunity for its examination before it was used by the
plaintiff. 82
Supplying defective motor-car.— The defendants supplied for the plaintiff's use a reconditioned motor-car. The
plaintiff drove the car out on business. In turning a corner the near rear wheel came off, owing to the negligence of
the defendants’ servants before delivery and the plaintiff suffered injury. It was held that the defendants owed a duty
to the plaintiff to take reasonable care that the car which was intended, as they knew, for his immediate use, should
be in a safe condition, and that they were liable for negligence. 83
Wire in sweetmeats.— The defendants were manufacturers of sweets. A seven pound box of sweets manufactured
by them was sold to a middleman who supplied them to the plaintiff. The plaintiff was putting the sweets into a
displaying tray when his finger was injured by a piece of wire in one of the sweets. He sued the defendants who
contended that there was ample opportunity for intermediate examination. It was held that the defendants were
negligent, and the case was within the doctrine of Donoghue v. Stevenson . 84
Defect in chain.—Donoghue's case has been distinguished in cases in which the defect of the manufacturers is
discoverable on reasonable inspection. A crane was supplied by manufacturers in parts to be assembled by the
purchasers before use and there was a patent and discoverable defect in certain parts which was discovered by an
experienced crane erector who erected the crane but who took his chance of operating it without remedying the
defect and got killed by the falling of a part of it. In an action by his widow under the Fatal Accidents Act, it was held
that the defects being discoverable on reasonable inspection, and having in fact been discovered by the deceased,
the manufacturers owed him no duty and were not liable for the accident.85
Injury caused by hair dye.— A hair dresser treated the plaintiff's hair, with a dye, and as a result the plaintiff
contracted dermatitis. The dye had been delivered to the hair dresser in labelled bottles together with a small
brochure of instruction. Both the labels and the brochure contained a warning that the dye might be dangerous to
certain skins, and a recommendation that a test should be made before it was used. The hair dresser made no test
and did not warn the plaintiff. It was held that the manufacturers had given the hair dresser a warning which was
sufficient to intimate to him the potential danger of the dye and, therefore, they were not liable, but the hair dresser
was liable for negligence. 86
Injury to workman owing to defective tool supplied.— The plaintiff, a maintenance fitter, was knocking out a metal
key by means of a drift and hammer when, at the second blow of the hammer, a particle of metal flew off the head
of the drift and into his eye, causing injuries. The drift which had been provided for the plaintiff's use by his
employers, although apparently in good condition, was of excessive hardness, and was, in the circumstances, a
dangerous tool; it had been negligently manufactured by reputable makers, who had sold it to a reputable firm of
suppliers who, in turn, had sold it to the employers, whose system of maintenance and inspection was not at fault.
The plaintiff claimed damages for negligence against his employers on the ground that they had supplied him with a
defective tool, and against the makers on the ground that, as the manufacturers of the drift, they were under a duty
to those who they contemplated might use it. It was held that the employers, being under a duty to take reasonable
care to provide a reasonably safe tool, had discharged that duty by buying from a reputable source a tool whose
latent defect they had no means of discovering. It was, however, held that the manufacturers were liable. 87 The
plaintiff was employed as a slaughterman by the first defendants in an abattoir which was owned and controlled by
the Liverpool Corporation, the second defendants. New chains were supplied by the Corporation which were
unsuitable for the work as they were of a heavier type so that it was difficult to form a slip-knot which would grip
tightly the legs of the pigs. Both plaintiff and the first defendants knew that the chains were unsuitable for the work,
but did not complain to the Corporation. One year after the new chains had been in use one pig fell out of the slip-
knot of the chain and injured the plaintiff. It was held that the plaintiff never became the servant of the Corporation
and his claim against the Corporation was liable to fail by reason of the full and complete knowledge of the
unsatisfactory nature of the chains possessed by the plaintiff. 88
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5. KEEPERS OF DANGEROUS ANIMALS
A person who owns or is in possession or control of an animal may become liable for damage caused by the animal
under the common law in three ways. He may become liable under the ordinary law of torts; he may become liable
without any fault when the animal is of a dangerous character or when the animal though generally not of a
dangerous character is in particular of dangerous character to the defendant's knowledge; and he may become
liable for cattle trespass. When a person sets a dog to bite another person he is liable for assault and battery in the
same way as if he has himself hit the person. When a person keeps pigs in a residential area, he may become
liable for nuisance in the same way as if he had collected material which emitted offensive stench to the
neighbours. Similarly, a person may become liable in negligence if he does not take proper care of his animal and
the negligence results in injury to another. These are examples of liability under the ordinary Law of Torts. The
other two kinds of liabilities under the English law have been codified by the Animals Act, 1971 89 , which retains to
a large extent the rules of the common law. Liability for cattle trespass has already been dealt with earlier. Here we
are concerned with the liability for animals of dangerous character.
Wild animals roaming in the forest, eventhough their hunting be prohibited, are not the property of the State and the
Government is not liable for injury caused by a wild animal e.g. black bear. 90
There are two classes of animals: (A) those that are of a dangerous character (animals ferae naturae ); and (B)
those not normally of a dangerous nature (animals mansuetae naturae ).
5(A) Animals ferae naturae
If from the experience of mankind a particular class of animals is dangerous, though individuals may be tamed, a
person who keeps one of the class takes therisk of any damage it may do. 91 Thus a lion, a bear, a wolf, 92 a
monkey, 93 and an elephant, 94 are regarded as savage animals. He who keeps a savage animal does so at his
peril. He is bound to keep it so far under control as to prevent it indulging in its propensity and inflicting injury. If the
animal escapes and hurts any one, it is not necessary for the party injured to show that the owner knew the animal
to be specially dangerous. It is immaterial whether the owner knows it to be dangerous or not.
It has been held that zoo authorities have to keep dangerous animals (e.g. a tiger) in such a manner that under no
circumstances these animals are able to cause any injury to any visitor. 95 A white tigress was kept inside iron
bars in the National Zoological Park Delhi. There was a railing before the iron bars. A child visitor aged 3 years
crossed the railing and put his right hand into the iron bars when the tigress suddenly grabbed the hand and
crushed it which had to be amputated. The zoo authorities were held liable in damages for not taking the precaution
of so keeping the tigress by putting a wire mesh on iron bars or otherwise so as to prevent a child visitor from
putting his hand into iron bars. 96
Bees are ferae naturae but when hived they become the qualified property of the person who hives them. The
owner of a swarm of bees has no legal right to follow the bees on another man's land. When a swarm of bees
settles on another person's land, the former owner of the bees loses his right in them, which again become ferae
naturae . 97
The defendant kept a monkey which he knew to be accustomed to bite people, and which bit the plaintiff; and the
defendant was held liable. 1 DENMAN, C.J. said: “whoever keeps an animal accustomed to attack and bite
mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any
person attacked and injured by the animal, without any averment of negligence or default in the securing or taking
care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous propensities. The
negligence is in keeping such an animal after notice.” 2
5(B) Animals mansuetae naturae

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If the animal kept belongs to a class which, according to the experience of mankind, is not dangerous, and not likely
to do mischief, and if the class is dealt with by mankind on that footing, a person may safely keep such an animal,
unless he knows that the particular animal that he keeps is likely to do mischief. 3 The law assumes that animals
belonging to this class such as sheep, horses, oxen, camels, 4 dogs, etc., are not of a dangerous nature, and any
one who keeps an animal of this kind is not liable for the damage it may do, unless he knew that it was dangerous.
5 The knowledge of the defendant must be shown as to their propensity to do the act in question. It not being usual
for dogs, 6 cats, 7 or horses, 8 or rams, 9 or bulls, 10 or camels 11 to attack human beings, the plaintiff
complaining of such injury from such animals must establish that the defendant knew they were exceptionally
savage, and prone to injure mankind.
A single instance of ferocity of such an animal towards mankind is sufficient notice. 12 If the owner of a dog
appoints a servant to keep it, the servant's knowledge of the dog's ferocity is the knowledge of the master. 13
Where an animal has been found by its owner to possess such a nature, it passes into the class of animals which
the owner keeps at his peril. 14
Dog.— The defendant was the owner of a dog known by him to be savage. A servant of the owner who was
entrusted with the custody of the dog incited it to attack the plaintiff who was a maid-servant of the owner of the dog
and thereupon the dog flew at and bit the plaintiff. It was held that the owner was liable. 15 The defendant's dogs,
which to the knowledge of his servant having the charge of such dogs were likely to bite people without provocation
were taken by such servant to a public recreation-ground. The plaintiff, a child seven years of age, became
frightened of the dogs and cried whereupon the dogs attacked and bit him severely. The Court allowed the plaintiff
Rs. 400 as a solatium for the pain and suffering he had undergone and a further sum of Rs. 600 to reimburse his
father for the expenses incurred in going to Kasauli and in other medical necessities. 16 The plaintiff, who went to
the defendant's house on a lawful business, crossed the verandah and made for the door of the dining-room with
the object of entering it, when a dog, which was chained inside the door, attacked and bit her. The dog when
chained and on guard was ferocious; and this was known to the defendant. The plaintiff sued to recover expenses
of treatment and other damages. It was held that the defendant was liable. 17
The defendant parked his saloon motor-car in a street and left his dog inside. The dog had always been quiet and
docile. As the plaintiff was walking past the car, the dog, which had been barking and jumping about in the car
smashed a glass panel, and a splinter entered the plaintiff's left eye, which had to be removed. In an action for
damages, it was held that the plaintiff could not recover, as a motor-car with a dog in it was not a thing which was
dangerous in itself, and as the accident was so unlikely that there was no negligence in not taking precautions
against it. 18
Cat.— The plaintiff, accompanied by her husband and carrying a pet dog, entered a tea-shop by permission of the
defendants the proprietors thereof. On the premises was a cat which had kittens. The cat had been shut up in a
store-room, but had escaped. The plaintiff put her dog on the floor. The cat sprang on the dog and bit it. The plaintiff
picked up the dog and handed it to her husband. The cat sprang on her and bit her arm. Evidence was given that
cats rearing kittens were inclined to be savage and in a vicious state even if gentle otherwise; and that if such a cat
smelt the clothing of a person who had been carrying a dog it might attack that person. It was held that the
defendants were not liable. 19 Where a cat strayed from its owner's land into the land of a neighbour and killed
fowls and pigeons kept there, it was held that the owner of the cat was not liable. 20
Horse. —Where a vicious horse belonging to the defendant was let loose in a field of the defendant which the public
were in the habit of crossing and the plaintiff in crossing the field was attacked, bitten and stamped on by the horse,
it was held that the plaintiff was entitled to recover damages for the injury caused to him. 21 The male plaintiff hired
a horse and landau from the defendant, a liverystable keeper, for the purpose of a drive. The defendant provided
the driver as well as the horse and landau. The female plaintiff, the wife of the male plaintiff, was one of the party
who went in the landau. During the drive the horse shied at a traction engine and the landau was upset and the
plaintiffs were injured. In an action claiming damages in respect of their injuries, it was held that the defendant was
liable in damages not only to the male plaintiff but also to the female plaintiff, first, inasmuch as he was, in view of
his means of knowledge as to the character of the horse, under a duty to warn not only the person who hired it, but
any person he knew or contemplated would use it, and, secondly, inasmuch as the defendant, who kept control of
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the landau, accepted the female plaintiff as a traveller or passenger, and was, therefore, bound to use due care to
see that she was safely carried. 22 The owners of two young and unbroken fillies kept for several months in a field
across which ran a public footpath. When the plaintiff was walking along the footpath the fillies galloped across the
field and one of the fillies knocked down the plaintiff, who was badly frightened and suffered nervous breakdown.
Evidence led showed that the fillies were playful and had a natural propensity to gallop up to and gather round
people crossing the field but they were not vicious. It was held that the plaintiff, could not succeed in the absence of
proof that the defendants were aware of any vicious propensity on the part of the fillies. 23
Buffalo. —In a fight between two buffaloes belonging to different owners, one was killed. It was held that the owner
of the buffalo which killed the other was not liable to make compensation in the absence of neglect or carelessness
on his part in keeping the animal. 24
Bull.— The defendant kept a bull which was known by him to be dangerous. The animal had been de-horned and
was kept untethered in a loose box. The keeper in order to clean the box asked the plaintiff, a labourer, to assist
him by holding the door of the box open as a means of escape should it be necessary. The keeper having failed to
secure the animal, the plaintiff offered to try to do so and was doing so when the bull charged and severely injured
him. It was held that the principle of strict liability for injuries caused by an animal known to be dangerous did not
apply where the animal had been placed under control and had not escaped; that the principle was inapplicable
here; and that the defendant was not negligent. 25
6. DANGEROUS GOODS
In the case of articles dangerous in themselves there is a peculiar duty to take precaution imposed upon those who
send forth or install such articles when it is necessarily the case that other parties will come within their proximity.
The duty being to take precaution, it is no excuse to say that the accident would not have happened unless some
other agency than that of the defendant had intermeddled with the matter 26 . If, however, the proximate cause of
the accident is not the negligence of the defendant, but the conscious act of another's volition, then he will not be
liable, for against such conscious act of volition no precaution can really avail. It has been suggested that the
separate category of dangerous goods should be abolished 27 for the ordinary rule of negligence, that the greater
the risk, the greater the precaution must be taken to obviate it, 28 is good enough to cover use of dangerous
goods. But there is yet another suggestion that the category of dangerous goods be reconstituted and the rule of
strict liability imposed for them. 29 The old classification has, however, been retained here which contains a
discussion on the following items:—
(A) Fire.
(B) Fire-arms.
(C) Fireworks and Explosive Material.
(D) Poisonous Drugs.
(E) Other Dangerous Articles.
6(A) Fire
Every person who lights a fire is clothed by the common law with a heavy responsibility to his neighours as regards
the lighting, safe-keeping, and spreading of such fire. The making of a fire involves the bringing on land of
something not naturally there, and therefore, the owner of the fire is bound to keep it in at his peril. But this is an
over-statement for even under common law, a man is not liable for damage caused by “domestic fire”, that is, a fire
which began in his house or on his land, provided that it originated by accident and without negligence. 30 The
common law came to be modified by the Fires Prevention (Metropolis) Act, 1774 which enacts that no action shall
be maintainable against anyone in whose building or on whose estate a fire shall accidentally begin. Even if there
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was ever any liability for mere escape of fire unattended by non-natural use or negligence, it was abolished by this
Act. But even after the Act, a person is liable (i) if the fire was caused by the negligence of himself or his servants,
or by his own wilful act; and (ii) on the principle analogous to Rylands v. Fletcher . 31 In Goldman v. Hargrave , 32
a redgum tree standing on the defendant's land was struck by lightning and caught fire. The land around the tree
was cleared, the tree was cut down and sawn into sections. The defendant did not, however, completely extinguish
the fire say by dousing it with water or otherwise and he merely left the fire to burn itself out. Three days after a
strong wind revived the fire which spread to and damaged the plaintiff's land. The Privy Council held that there is a
general duty of care on an occupier on which a hazard to his neighbour arises, to remove or reduce the hazard,
whether it arises by the act of God, or from natural causes or by human agency; and the standard of duty of care is
to require the occupier to do what is reasonable having regard to the circumstances and the resources that he
actually had. The Privy Council found the defendant liable for negligence as he had not extinguished the fire which
he could have done without much expense. In Mason v. Levy Auto Parts of England Ltd ., 33 the defendants kept
in their yard large stacks of wooden cases containing greased or wrapped machinery, as well as quantities of
petroleum, acetylene and paint. A fire broke out for an unknown reason and damaged the plaintiff's adjoining
garden. The defendants were not found to be negligent but they were held liable on the principle analogous to
Rylands v. Fletcher as the use of the land was held to be non-natural. According to this principle the defendant
would be held liable “if (1) he brought on to his land things likely to catch fire and kept them there in such condition
that if they did ignite the fire would be likely to spread to the plaintiff's land; (2) he did so in the course of some non-
natural use; and (3) the things ignited and the fire spread.” 34
“When the legislature has sanctioned and authorised the use of a particular thing, and it is used for the purpose for
which it was authorised, and every precaution has been observed to prevent injury, the sanction of the legislature
carries with it this consequence, that if damage results from the use of such thing independently of negligence, the
party using it is not responsible”. 35 Thus, when the legislature has sanctioned the use of locomotives, there is no
liability for injury caused by sparks flying from them. 36 But, if there is no such sanction given, a railway company
will be liable for injury caused by such sparks even though there is no negligence. If the railway company had not
express statutory power to use such engines, it is liable for damage by fire proceeding from it, though negligence be
negatived, because it does so at its peril. 37
Fireman's rule.— Under American Law there exists what is known as a ‘fireman's rule’ which means that a fireman
suffering injury while doing his duty of extinguishing a fire cannot sue a person whose negligence had caused the
fire even if injury suffered was foreseeable. But this rule does not form part of the English Law as held by the House
of Lords in OGWO v. Taylor . 38 The English Law on this point stated in this case is as follows: “where it can be
foreseen that the fire which is negligently started is of the type which could, first of all, require firemen to attend to
extinguish that fire and where because of the very nature of the fire when they attend they will be at risk even
though they exercise all skills of their calling, there seems no reason why a fireman should be at any disadvantage
when the question for compensation for his injuries arises. 39 In this case a fireman who was wearing protective
clothing and who went on duty to extinguish a fire negligently started by the defendant, was held entitled to
compensation for the injuries suffered by him from steam generated by fighting fire with water. The same principle
has been applied to police officers called for rescue work in a disaster caused by the defendants negligence. 40
Firebrigde.— The court of appeal has held that a fire brigade does not enter into a sufficient proximate relationship
with the owner or occupier who calls for their services so as to come under a duty of care merely by attending at the
fire ground and fighting the fire. But where the fire brigade, by their own actions had increased the risk of the danger
which cause damage to the plaintiff, they would be liable for negligence in respect of that damage, unless they
could show that the damage would have occurred in any event. 41
Escape of, from railway engine.— The Allahabad High Court has ruled that in a suit based on the allegation that the
plaintiff's property near a railway line was destroyed by reason of sparks flying from an engine of the defendant
railway company, the railway company must show that they had taken proper precautions to avoid damage to
property adjacent to the railway line. 42
Where the damage caused to the plaintiff's property was not by fire, which was due to accident, but the fire spread
to some gunny bags stacked near the plaintiff's window, and to stop which no attempt was made by the defendant,
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it was held that the defendant was liable as the damage caused to the plaintiff's property was due to his negligence
in not taking any steps to prevent the spread of fire. 43
There is a liability on the part of a proprietor of property, for damage caused to the property of the neighbour by a
fire accident resulting from negligence, even though the proprietor is not in actual occupation but a tenant under the
proprietor. 44
Hayrick on fire. —A farmer had a hayrick in a highly dangerous condition. It smoked and steamed—unmistakable
signs of being about to take fire. To the advice and remonstrance of his neighbours who pointed out its condition, all
the answer the farmer vouchsafed was that he would change it. Finally, he did take a kind of precaution, he made a
chimney through the rick, which, though done with good intentions, was scarcely wise. The rick took fire, and burnt
the plaintiff's cottage, in the next field. The farmer was held responsible for the damage. 45
Setting fire to chimney.— Where a maid-servant, whose business was simply to light a fire, took it into her head to
clear a chimney of soot, by setting it on fire and burnt the whole place down, she was held liable. 46
Blow lamp.— The defendants were the owners and occupiers of dwelling-house which was contiguous to that of the
plaintiff. On January 29, 1954, the second defendant employed an independent contractor to thaw frozen pipes in
her loft, which contained a large quantity of combustible material. The independent contractor applied a blow-lamp
to the pipes which were, in parts, lagged with felt; the felt caught fire and the fire spread rapidly throughout the loft
and to the plaintiff's house. The Court found that the fire was caused by the negligence of the independent
contractor because, although the use of a blow-lamp was one of the normal methods of thawing pipes, it was
negligent to use one in proximity to in flammable material. It was also held, that a householder was liable for an
escape of fire from his premises to those of his neighbour where the fire was caused by the negligence of an
independent contractor whom the householder had invited to his house to carry out work there, and therefore, the
defendants were liable in damages to the plaintiff. 47
6(B) Fire-arms
Fire-arms, which are loaded, are highly dangerous things, and more than ordinary care is therefore necessary in
dealing with, or handling them. As fire-arms are instruments the destructive power of which is obvious to every one,
the law is very strict in imposing liability for damage done by them. The possession of a loaded gun imposes upon
the person who is in possession of it, an obligation to use a much greater amount of care than would the
possession of the same gun were it unloaded. 48
Girl sent to fetch loaded gun.— The defendant, having left a loaded gun with another man, sent a young girl to fetch
it with a message to the man in whose study it was to remove the priming, which the latter, as he thought, did, but,
as it turned out, did not do effectually. The girl brought it home and, thinking that the priming having been removed
the gun could not go off, pointed it at the plaintiff's son, a child, and pulled the trigger. The gun went off and injured
the child. The defendant was held liable. 49
The defendants, proprietors of a toy and fancy goods shop, sold a “safety pistol” and fifty blank cartridges, to A, a
boy twelve years of age. In playing with the pistol A fired it and injured his playmate, the plaintiff B, a boy about ten
years of age. The cause of the accident was that the pistol had become fouled. It was held that the pistol and
cartridge formed a dangerous combination in the hands of A, and that the defendants, having chosen to sell these
pistols and cartridges, could not be heard to say that they did not know that they might become dangerous in A's
hands, and that, therefore, they were liable to B in damages. 50 The defendant, a farmer, allowed his son S to buy
a gun and showed him how to use it but told him not to take the gun out of the farm and not to use it when other
children were present but did not instruct S how to handle the gun when in the presence of others. Disobeying the
defendant's instructions S went out shooting with other boys all of whom had fire-arms except the plaintiff. While the
boys were walking in a single file the boy behind S, probably trying to take S's gun, pulled the trigger as a result of
which the gun went off and injured the plaintiff. It was held that the defendant was liable in negligence as he had
allowed S to have the gun without giving him instructions as to how to handle the gun in the presence of others and
that the defendant's instructions to S not to use the gun in the presence of other children made no difference as the
defendant could not possibly see that they were obeyed. 51
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6(C) Fire-works and Explosive Materials
Persons are bound to use the very greatest care in the use of fire-works and other highly explosive materials, or
materials otherwise dangerous or destructive. Owners and controllers of dangerous goods are bound to exercise
more than ordinary care, for they have not only taken upon themselves a matter of business requiring great care,
but the law having regard for human life and safety, demands great care from them. The duty to keep an explosive
substance without causing injury to others is a “non-delegable” duty. 52 On this principle people sending goods of
an explosive or dangerous nature to be carried are bound to give notice of their nature, and, if they do not, are liable
for resulting damage.
Sending nitric acid without warning.— Where the defendant sent nitric acid to a carrier without warning, and the
carrier's servant, handling it as he would handle a vessel of any harmless fluid was injured by its escape, the
defendant was held liable. 53
Sending combustibles without warning.— The defendants sent a box containing combustible and dangerous
substances to a railway company without notifying the contents as he was bound by law to do, and this box was
placed near the place where the plaintiff's husband was at work, and it suddenly exploded, and the plaintiff's
husband sustained such injuries in consequence that he died from the effects of them. It was held that the
defendant was liable for the consequences of the explosion, whether it occurred in a manner which he could not
have foreseen as probable, or not. 54
Stocking fire-works. —Where the defendant stocked fire-works in a room which was let by the plaintiff and fire
started in that room and burnt down plaintiff's goods and premises, it was held that the defendant was liable. 55
Negligent in keeping of phosphorous.— The defendant, a schoolmaster, was held liable to one of his pupils for an
injury resulting from the careless act of another boy in handling phosphorus. The phosphorus bottle was locked up,
and the key kept in the kitchen; but some one had got it surreptitiously, and left it in the conservatory: there it was
found by the boys; one of them put a lighted match into it and put in the stopper. He afterwards opened it to look at
it, when the bottle burst and the plaintiff was injured. It was held that the schoolmaster was liable. 56
6(D) Poisonous Drugs
Persons dealing with poisonous drugs are bound to take more than ordinary care as the mischief which is likely to
occur for want of such care is extremely dangerous to the public. A dealer in drugs, who carelessly labels a deadly
poison as a harmless medicine, and sends it so labelled in the market, is liable to all persons, whether purchasers
or not, who, without fault on their part, are injured by using it as medicine in consequence of the false label,
however many intermediate sales it may have passed through before it reached the hands of the person injured.
The liability arises out of the duty which the law imposes upon persons to avoid acts in their very nature dangerous
to the lives of others. 57
Dangerous packing of disinfectant powder. —Where the vendor of a tin containing disinfectant powder knew that it
was likely to cause danger to a person opening it, unless special care was taken, and the danger was not such as
presumably would be known to, or appreciable by, the purchaser unless warned of it, it was held that,
independently of any warranty, there was cast upon the vendor a duty to warn the purchaser of the danger. 58
Selling belladona instead of dandelion.— The defendant, a compounding chemist, put extract of belladona, a
poison, into a jar, labelled ‘Extract of Dandelion’, which is a harmless drug, and sold it as extract of dandelion to a
retail druggist. The latter, believing the substance what it purported to be, sold it upon a prescription of a physician
to the plaintiff. The result was serious injury and the defendant was held liable. 59
Selling injurious hair-wash.— The defendant, a chemist, sold a compound which was made of ingredients known
only to himself, which he represented to be harmless and beneficial hair-wash. The plaintiff bought a bottle for the
use of his wife and injury resulted. It was held that the defendant was liable on the ground of negligence in the
preparation of the hair-wash. 60
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6(E) Other Dangerous Articles
A person who intentionally induces another to rely on his examination of a dangerous chattel is liable if that other is
injured owing to a defect in the chattel which could have been discovered by a proper examination. This principle is
deducible from Oliver's case, 61 in which the defendants, a firm of stevedores engaged in unloading a ship, placed
bags of maize in rope slings and then raised them to the deck. Here the bags, still in the rope slings, were turned
over to an independent porterage company, which transported them to the dock by a crane, the defendants
gratuitously permitting the porterage company to use the slings. A servant of the porterage company was killed
when a defective sling, which defect could have been discovered by a proper examination, broke while the bags
were being transported by a porterage company. The defendants were held liable.
Causing fire by pouring petrol near lamp.— Where the defendant poured petrol in a drum in proximity of a lighted
hurricane lamp in a godown and the petrol caught fire and there was a big blaze which completely gutted the
godown which was let to him for storing grains, it was held that he was liable for his negligent act, for which he was
made to pay Rs. 1,200 as damages for reconstructing the godown. 62
Injury by synthetic glue.— Where an employer has in constant use, in a workshop, a material dangerous to his
workmen (such as a synthetic glue which is a cause of dermatitis if the glue is left to dry on the skin), the employer
has not performed his duty if he keeps the recognized prophylactic (such as in the case put, “barrier cream”) in the
store of the factory, from where it can be drawn for use by either foreman or workmen; it must be available at the
workshop, where the workman is using the material. The man in charge of the work in the workshop is responsible
for seeing, so far as he can, that the workmen make use of this recognized prophylactic. If injury results from the
employer's failure to take these precautions he will be responsible to the injured workman in damages at common
law for his failure to provide a safe system of work. The injured workman is guilty of contributory negligence if he
knows that the material is dangerous, knows of the recognized prophylactic and where it is kept, and does not use
it. 63
Misdelivery of dangerously inflammable material .—Five packing cases containing dangerously inflammable
celluloid film scrap were delivered in error by the defendants to the plaintiff's premises. No warning of their
dangerous contents was given, but the plaintiff's foreman recognised the material as inflammable and dangerous
when some of it was taken out of the cases. He warned the workmen in charge of the cases not to smoke near
them, instructed them to replace the scrap and remove the cases to the yard, and arranged with the defendants to
deliver the cases to their proper destination 150 yards away. Before the cases were removed a typist employed by
the plaintiff approached the scrap while holding a lighted cigarette and it exploded causing serious damage. It was
held that it was the duty of the defendant not to deliver this inflammable material without warning in such
circumstances that the damage might result from some mischievous or foolish act of a person on the plaintiff's
premises, and that, therefore, they were guilty of negligence. 64
Gas (Coal-gas).— Gas companies are held liable for negligence in respect of gas, which is a dangerous substance.
65 They are bound to exercise the greatest care, for they are using a material difficult to manage, and of a very
dangerous character, for it is explosive and poisonous. Those who carry on operations dangerous to the public are
bound to use all reasonable precautions—all the precautions which ordinary reason and experience might suggest
to prevent the danger. 66 It is not enough that they do what is usual if the course ordinarily pursued is imprudent
and careless; for no one can claim to be excused for want of care because others are careless as himself, on the
other hand, in considering what is reasonable it is important to consider what is usually done by persons acting in a
similar business. 67
Improper repair of gas pipe. —A gas-fitter was employed to repair a gas-meter. He took it away and supplied a
temporary pipe. The plaintiff, a servant, in the course of his duty, and without any negligence, when lighting the gas,
was injured by the explosion of the gas which had escaped by reason of the insufficiency of the connecting tube. It
was held that the gas-fitter was liable. 68
Injury from gas-cooker.— The plaintiff, a girl eleven years of age, attended a school maintained by the defendants.
Whilst she was being instructed in cooking, her apron caught fire from a gas-cooker, and she received injuries.
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There was no guard round the cooker. It was held that the danger was one which ought reasonably to have been
anticipated, and one which the defendants ought to have taken precautions to prevent by the provision of a guard
round the stove or otherwise. 69
Machinery.— Persons employing machinery are bound to provide reasonably safe machines. There are several
Acts requiring persons using dangerous machinery to take proper precautions. 70
Electricity.— The statutory authority, under the Electricity Act, 1910 read with the Electricity Supply Act, 1948, to
transmit electric energy may absolve an Electricity Board from liability for nuisance for the escape of electrical
energy, but the Board can still be liable for negligence. It is negligence to omit to use all reasonable means to keep
the electricity harmless. The standard of care required is a high one owing to dangerous nature of electricity and the
burden of proving that there was no negligence is generally on the Board and there is no obligation on the plaintiff
to prove negligence.71
7. CONTRIBUTORY NEGLIGENCE
7(A) General Principles
In trying a claim arising out of death or injury caused by negligence, the Court may be faced with a situation where
both parties were in some respects negligent. The Court is then to decide as to whose negligence caused the death
or injury. There are three possible answers to such an enquiry depending upon the circumstances of the case: (1)
The defendant's negligence alone caused the death or injury; (2) The deceased's or the plaintiff's negligence was
solely responsible for the death or injury; and (3) The negligence of both the parties caused the death or injury. It is
obvious that if the finding is that the defendant's negligence alone caused the death or injury, the plaintiff would
succeed even if the deceased or the plaintiff was in some respects negligent. Similarly, there is no difficulty in
holding that the plaintiff will fail if the deceased's or his negligence was solely responsible for the death or injury, as
the case may be, even if the defendant was in some respects negligent. In the third case, where the negligence of
both the parties caused the death or injury, the common law rule was that the plaintiff was to fail 72 even when the
defendant was more at fault. In other words, if the deceased's (in case of death) or the plaintiff's negligence
contributed in some degree to the death or injury, the defendant succeeded by pleading contributory negligence
irrespective of the fact that the death or injury was largely caused by the defendant's negligence. The defence of
contributory negligence means that the deceased or the plaintiff failed to take reasonable care of his own safety
which was a material contributory factor to his death or injury. 73 As the defence enabled the defendant to escape
completely even when he was more at fault, the Courts were slow to infer that the negligence of the plaintiff was a
contributory factor. The Courts devised the rule of last opportunity which meant that if the defendant had the last
opportunity to avoid the accident resulting in injury he was held solely responsible for the injury in spite of the fact
that the plaintiff was also negligent. 74 This rule was further extended to cover cases of constructive last
opportunity meaning thereby cases where the defendant would have had last opportunity but for his own
negligence. 75 A more rational approach was made in cases involving maritime collisions where the Courts had
opportunity of apportioning damages under the Maritime Conventions Act, 1911. In Admiralty Commissioners v.
S.S. Volute 76 a collision had occurred between the Merchant ship Volute and the Destroyer Radstock . The Volute
was at fault in changing her course without giving proper signal and the Radstock was at fault in increasing her
speed although she had the knowledge of the danger caused by the change of course of the Volute . It was held
that both the ships were responsible for the collision even though the last opportunity for avoiding the collision was
with the Radstock . VISCOUNT BIRKENHEAD, L.C., in his speech in that case, which has consistently been cited
with approval, stated: “The question of contributory negligence must be dealt with somewhat broadly and upon
commonsense principles as a jury would probably deal with it. And while no doubt, where a clear line can be
shown, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely
together, and the second act of negligence is so much mixed up with the state of things brought about by the first
act, that the party secondly negligent, while not held free from blame—might on the other hand, invoke the prior
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negligence as being part of the cause of the collision so as to make it a case of contribution.” 77 As stated by the
Privy Council on following the Volute in another maritime collision case, “Where the acts of negligence, though
successive are close together in time and interact with each other, they fall to be considered not as severable but
as co-operating factors in the final catastrophe.” 78 The decision in the case of the Volute was followed later by the
HOUSE OF LORDS in a non-maritime collision case and was regarded as one of general application. 79 In this
case (a crossroad collision between a car and a motor-cycle), HUMPHREY, J., asked the Jury to answer the single
question : Whose negligence was it that substantially caused the accident? The HOUSE OF LORDS held that that
was a sufficient direction. The defendant in this case while driving the car at about thirty miles an hour along a main
road, approached a point in the road without keeping a proper look out or slowing down where it was crossed by a
side road, when a man riding a motor-cycle came into the road from the side road without warning and a collision
occurred in which the motor-cyclist was killed. In a suit for damages filed by the widow of the deceased, the
defendant was held not liable under the common law rule as the deceased was also negligent. The case lays down
that where the negligence of the parties is contemporaneous or so nearly contemporaneous as to make it
impossible to say that either could have avoided the consequences of the other's negligence, it would be said that
the negligence of both contributed to the accident. Had it been a case of maritime collision the Court could have
apportioned the damages as in the case of the Volute . But the question of contributory negligence has in all cases
to be decided on the same principles. As stated by the Law Revision Committee, 1939: “The question, as in all
questions of liability for a tortious act, is not, who had the last opportunity of avoiding the mischief, but whose act
caused the wrong.” 80
The common law rule that if the plaintiff's or the deceased's (in case of death) negligence contributed in some
degree to the injury or death, the action failed, was illogical and its origin lay possibly in the procedural and pleading
anomalies of the common law. 81 As long back as 1887, FRY, L.J., a great Judge, demanded why the Court could
not be empowered to divide the loss. 82 SCOTT, L.J., in 1943 referred to the “harsh and often cruel bearing of our
common law doctrine of contributory negligence” and stressed the need for early law reform. 83 The reform in
England came by legislation in the shape of the Law Reform (Contributory Negligence) Act, 1945. Section 1(1) of
the Act provides : “Where any person suffers damage as the result partly of his own fault and partly of the fault of
any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the
person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as
the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.”
Section 4 defines ‘damage’ to include loss of life and personal injury and ‘fault’ to mean negligence, breach of
statutory duty or other acts or omissions which give rise to liability in tort. The English Act extends to Scotland, has
been copied in Northern Ireland and similar Acts have been adopted in Canada, Australia and Newzealand. 84
There is no corresponding Central Act in India but the provisions of the English Act have been followed, in
preference to the common law rule, being more in consonance with justice, equity and good conscience. 85 The
Madhya Pradesh case of Vidya Devi contains an elaborate discussion why the principles of the English Act should
be followd in India eventhough there is no corresponding Act in India. 86 The Supreme Court without any reference
to the English Act, has held that “it is now well settled that in the case of contributory negligence, courts have the
power to apportion the loss between the parties as seems just and equitable.” 87
In cases where the negligence of both the parties contributes to the damage for which damages are claimed the
Court can now apportion the fault and reduce the damages to the extent of the claimant's share in the responsibility
for the damage. As the plaintiff's claim is now not entirely defeated but only rateably reduced in cases where the
plaintiff is partly responsible for the damage, the Courts are not reluctant to infer that the plaintiff was also partly
blameworthy. 88 A case similar on facts to the case of Swadling v. Cooper , 89 does not now end in dismissal but
only in reduction of the damges recoverable by the plaintiff. In Vidya Devi v. Madhya Pradesh State Road Transport
Corporation , 90 there was a collision between a bus and a motor-cycle at a road intersection when the bus was
going on the main road and the motor-cycle came from a side road. The person riding the motor-cycle was killed. In
a claim for damages by the widow and children of the deceased it was found that the Bus driver was negligent in
not having a proper look-out while approaching the intersection and the deceased was negligent in driving at an
excessive speed while coming from the side road to the intersection. It was further held that the negligence of both
was responsible for the accident but the motor-cyclist was far more to blame than the Bus-driver. The responsibility
was apportioned in proportion of two-third and one-third. The claimants were in this view allowed damages to the
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extent of one-third of what they would have got had the deceased's negligence not contributed to his death. In
Municipal Corporation Greater Bombay v. Laxman Iyer , 91 the deceased who was riding a cycle came from the
left side and took the right turn contrary to traffic regulations. At that time he was hit by the Corporation bus which
was running at a moderate speed and the deceased was visible from a distance of 30 feet. It was found that the
deceased was negligent in taking a wrong turn contrary to traffic regulations and the bus driver was negligent in not
stopping the bus by quickly applying the brakes and in omitting to blow the horn. The deceased's negligence was
held to have 25% contributed to the damage and the compensation was reduced to that extent.
In T.O. Anthony v. Karvarnan 92 there was a head on collusion between a bus belonging to the Kerala SRTC and
a private bus in which the appellant who was driver of the bus of Kerala SRTC sustained injuries including fracture
of right femur. It was found that the private bus was on the wrong side of the road but the appellant had also neither
slowed down his bus nor swerved to his left on seeing the oncoming bus. On these facts the appellant was held
partly responsible for the accident and his responsibility was fixed at 25% and that of the private bus at 75% and the
compensation awarded to the appellant was reduced by 25%. This case was relied on in Andhra Pradesh State
Road Transport Corporation v. K. Hemlatha 93 where a motorcycle was hit from behind by a speeding bus as a
result of which the person driving the motorcycle died and another person on the motorcycle was injured. The
deceased was also driving the motorcycle at a high speed so it was held to be a case of contributory negligence.
The blame of the deceased for the accident was apportioned to be 1/4 and the total compensation determined was
reduced to that extent.
The Act applies when the plaintiff's negligence contributes to “the damage” and not necessarily to the accident
which results in the damage although in most cases it would be so. Thus damages would be reduced if a motor-
cyclist involved in an accident and suffering a head injury did not wear a crash helmet. 94 It may be noticed that
omission to wear a helmet is not negligence contributing to the accident but only to the damage suffered in the
accident. This example also illustrates that for being responsible for contributory negligence the plaintiff need not be
in breach of any duty to the defendant. 95 The question simply is whether the plaintiff or the deceased (in case of
claims arising out of death) had failed to take reasonable care of his own safety which had contributed to the
damage. 96 As observed by BALAKRISHNAN, J. “negligence ordinarily means breach of a legal duty to care, but
when used in the expression ‘contributory negligence’ it does not mean breach of any duty. It only means the failure
by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy
in part as an ‘author of his own wrong’. 97 Further “where by his negligence, if one party places another in a
situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to
contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been
the best way out of the difficulty.” 98 The broad observation in some cases 1 that a pillion rider cannot be guilty of
contributory negligence as he has nothing to do with the occurrence of an accident needs some qualification. For
example if rules require that a pillion rider should also wear a crash helmet and such a rider's omission to wear
crash helmet results in a head injury to him, he may be held liable for contributory negligence.Section 128 of the
Motor Vehicles Act, 1988 provides that no driver of a two wheeled motorcycle shall carry more than one person in
addition to himself on the motorcycle and no such person shall be carried otherwise than sitting on a proper seat
securely fixed to the motorcycle behind the driver's seat with appropriate safety measures. The question as to how
for a violation of Section 128 by the driver of the motorcycle and the pillion rider (e.g. when two persons are carried
on the pillion seat) would lead to the inference of contributory negligence was decided by a full bench of the M. P.
High Court and the answers given were as follows:2
“If the damage in the accident has not been caused partly on account of violation of section 128 by the pillion
rider of the motorcycle, the pillion rider is not guilty of contributory negligence. Similarly, if the damage suffered
by the pillion rider has not been caused partly on account of violation of Section 128 by the driver, the pillion
rider cannot put up a plea of composite negligence by the driver. In other words, if breach of Section 128 does
not have a causal connection with the damage caused to the pillion rider, such breach would not amount to
contributory negligence on the part of the pillion rider of the motorcycle or composite negligence on the part of
the driver of the motorcycle.”
Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the
same principles on which the question of defendant's negligence is decided. 3 The standard of reasonable man is
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as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. In the words of
DENNING, L.J., : “A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he
did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account
the possibility of others being careless.” 4 Thus, if a driver so negligently managed his vehicle as to cause it to
obstruct the highway and constitute a danger to other road users (including those who were driving too fast or not
keeping a proper look-out, but not those who deliberately or recklessly drove into the obstruction) then the first
driver's negligence might be held to have contributed to the causation of an accident of which the immediate cause
was the negligent driving of the vehicle which, because of the presence of the obstruction, collided with it or with
some other vehicle or some other person. 5 But if the plaintiff has acted as other person of ordinary prudence
would have acted in the circumstances, he cannot be accused of want of care for his safety. 6 Thus a passenger
resting his elbow on the window sill of a passenger bus in the country side when injured by another bus coming
from the opposite direction was not held to be guilty of contributory negligence as it is a common habit of
passengers of ordinary prudence while travelling in buses on the roads in the country side where the traffic is not
heavy to rest elbow on the window of the Bus. 7 The position may be different if the same thing happened on the
roads in a Metropolitan city where the traffic is heavy for there is a greater risk of vehicles coming too close while
crossing each other in a crowded street and thereby injuring any part of the passenger's body which is protruding
outside the window and an ordinary prudent passenger will desist from resting his elbow on the window in such a
situation. 8
It has also to be noticed that negligence of the plaintiff which can be described as contributory negligence must
have causal connection with the damage suffered by him. Taking again the example of omission to wear a crash
helmet by a motorcyclist involved in an accident, the omission would not amount to contributory negligence if the
injury suffered by the motor-cyclist is not on the head but on his hand. The plaintiff's negligent or unlawful conduct
which only leads to the plaintiff's presence at the place where the defendant's negligence operates to cause the
injury cannot amount to contributory negligence. If a motor-cyclist drives without a driving licence and is run down
by a motor-truck the mere fact that the motorcyclist had no driving licence will not give rise to a plea of contributory
negligence. It cannot be argued that had the motor-cyclist obeyed the law by refraining from driving without a
licence, he would not have been at the place of the accident and so he is guilty of contributory negligence for this
does not establish a real causal relationship between the unlawful or negligent conduct and the injury. The real
question is : Was the injury suffered by the plaintiff within the risk of the act or omission constituting his negligence?
In an Australian case, 9 the plaintiff rode on the pillion of a motor-cycle knowing that the lights were defective. The
motor-cycle collided with an oncoming car not because the lights were defective but because the motor-cyclist was
going on the wrong side and was not keeping a proper look-out. In a claim for injury suffered by the plaintiff against
the motorcyclist the plaintiff's conduct in accepting a ride on the pillion knowing the lights to be defective was not
held to be contributory negligence as the accident was unrelated to the risk involved in this conduct. This conduct of
the plaintiff merely led to his presence at the place where the defendant's negligence of driving on the wrong side
and of not keeping proper look out for oncoming vehicles operated to cause the accident resulting in the plaintiff's
injury. Briefly stated, the principle is that the inoperative negligence of the plaintiff, though continuing till the end,
does not amount to contributory negligence.
The defence of contributory negligence was applied to reduce damages in a suit against a valuer for damages for
negligently overvaluing property for loan advanced by the plaintiff who was also found to have contributed to the
damage by applying imprudent lending policy of advancing a non-status loan of 70% of the value of the security. 10
The plaintiff's contribution to the damage was assessed at 20% and the basic loss was reduced to that extent. 11
The question whether when a prisoner of sound mind with suicidal tendencies commits suicide as no proper
precautions were taken by prison authorities to prevent him from doing so, the act of suicide or self destruction by
the prisoner amounts to contributory negligence was considered by the House of Lords in Reeves v. Commissioner
of Police , 12 and it was held that the act of suicide amounts to ‘fault’ as defined in the 1945 Act and the
responsibility for the damage could be apportioned. On the question of apportionment of responsibility the court
said that on the one hand, it must demonstrate publicly that the police have a responsibility for taking reasonable
care to prevent prisoners from committing suicide and on the other hand respect must be paid to the fact that the
prisoner was of sound mind and he too was responsible for his death. In the circumstances the responsibility was
equally apportioned and the damages were accordingly reduced to half. But in St. George v. Home Office 13 where
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a prisoner addicted to drugs and alcohol and suffering recurring withdrawal seizures, which facts were known to the
prison authorities, was allocated a top bunk bed from which he fell down, as he suffered withdrawal seizure,
resulting in severe damage to his brain making him permanently disabled, the defence of contributory negligence
was not accepted. It was held that the prisoner's addiction to drugs causing withdrawal seizures were matters of
history known to prison authorities and could not be said to have caused his fall which was solely because of
negligence of prison authorities in allocating him the top bunk bed.
It has been held that contributory negligence must be pleaded by the defendant. 14 On the plea being established,
the Court is empowered to order reduction of the damages by an amount which is “just and equitable”.
Apportionment of blame and consequent reduction of damages are normally done; but it has been suggested that if
the blame of the plaintiff employee is only slight, it may not be just and equitable to reduce the damages against the
defendant employer, 15 conversely, it has been held that if the plaintiff's fault was so great that he should not get
any damages, he would not be allowed any damages though the defendant's contribution to the damage could not
be denied. 16 In apportioning the blame and reducing the damages the Court should take into account the
respective blameworthiness of the parties as also the causative potency of their acts or omissions. 17
The defence of contributory negligence has no place in a suit brought for damages on account of intentional wrong,
18 for example deceit 19 or bribery 20 . It has also been held that the 1945 Act has no application to a suit on
breach of contract. 21
7(B) Contributory Negligence of Children
The rule as to contributory negligence is not inflexibly applied in cases where young children are concerned.
Allowance is made for their inexperience and infirmity of judgment. 22 The correct principle is that children do not
form a separate category either for deciding whether the defendant owed any duty to the child plaintiff and was
guilty of negligence being in breach of that duty, 23 or for deciding whether the child plaintiff was guilty of
contributory negligence; but in deciding both these questions, the age of the child plaintiff and the experience and
intelligence of ordinary children of that age are to be taken into account along with other relevant circumstances. 24
The Madras High Court has held that children capable of discrimination and perceiving danger can be guilty of
contributory negligence. In this case a girl of seven years was knocked down by an engine while she was crossing
the railway line after passing through a wicket-gate. It was held that the proximate cause of the accident was the
negligence of the girl in not looking out for a passing engine when she was crossing the line and that as she was
capable of appreciating danger and was old enough to have a sense of discrimination she was guilty of contributory
negligence. 25 But a child of six, standing near a footpath when knocked down by lorry 26 and a child of the same
age when knocked down by a motor-vehicle while trying to cross the road 27 will not be held guilty of contributory
negligence for children of that age do not have adequate road sense. Similarly a child of four was not held guilty of
contributory negligence in accepting a ride on a motor cycle driven by his uncle with another person sitting on the
pillion. 28
By an untrue statement a boy aged nine years who was accompanied by his brother aged seven, prevailed on an
employee of the defendant company to sell him a small quantity of petrol. The children wanted the petrol for use in
a game in which they enacted a Red Indian scene they had witnessed in a cinematograph theatre. In the result, the
boy was seriously burned. It was held by the Privy Council that the defendants’ employee having given an explosive
substance to a boy who had limited knowledge of the likelihood of an explosion and its possible effect, and the boy
having done that which a child of his age might be expected to do, the defendants could not avail themselves of the
defence of contributory negligence, that the employee's negligence contributed to cause the injuries suffered by the
boy and that they were liable. 29
7(C) Choice of Evils
Where the creation of a dangerous situation is ascribable to the negligent act of the defendant, he is not to be
excused from liability for consequent harm by reason of the fact that the person endangered loses self-possession
and in the confusion his reaction to the danger takes a course which turns out not to be the safest one. In such
circumstances contributory negligence on the part of the person injured is not made out unless he is shown to have
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acted with less caution than any person of ordinary prudence would have shown under the same trying conditions.
30
Falling of horse from heap of rubbish.— The defendants had made a dangerous trench in the only outlet of a mews,
putting up no fence and leaving only a narrow passage, on which they heaped rubbish. The plaintiff, a cabman, in
the exercise of his calling, attempted to lead a horse out over the rubbish, and the horse fell and was killed; it was
held that the plaintiff was not disentitled to recover, because he had, at some hazard created by the defendants
brought his horse out of the stable. 31
Coach with defective coupling.— The defendant, a coach proprietor, negligently suffered a coach to go out with a
defective coupling. Going down a hill, the coupling broke and the horses became frightened. The driver was thereby
compelled to drive to the side of the road, where the coach struck a post and was on the point of being upset. The
plaintiff, who was riding on the back part of the coach, believed himself to be in jeopardy, and in order to avoid
immediate danger jumped down from the coach and was hurt. As it turned out, he might have avoided harm by
remaining on the coach. It was held that the defendant was liable. 32
Springing open of railway carriage door.— The plaintiff was travelling in a second class carriage and was sitting
close to one side of the carriage looking out. He got up, walked across to the other side of the carriage and put his
hands upon the door, which at once sprang open. The left hand immediately lost its hold, but he grasped the door
with his right hand arm, and hung on to it whilst it was open. He was carried in this way some 300 yards or more,
when seeing the pier of an arch over the line ahead of him, and fearful of coming in contact with it he let go and
endeavoured to throw himself aross a bush below him; but not having made allowance for the momentum of the
train, he missed the bush and fell on the line. He was afterwards found on the ballast much injured. The Court gave
judgment in his favour. 33
7(D) Rescue of third person
In the United States of America it is established that where by the negligence of A a situation has been created by
which B is placed in danger, C is not guilty of contributory negligence in making an effort, such as a reasonable and
prudent man would make in such an emergency, to rescue B, although by pursuing that course C places himself in
great and obvious danger. The doctrine of voluntary assumption of risk does not apply where the plaintiff has, under
an exigency caused by the defendant's wrongful misconduct, consciously and deliberately faced a risk, even of
death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one
to whom he owes a duty of protection as a member of his family, or is a mere stranger to whom he owes no such
special duty. 34 This principle has since been followed by the Court of Appeal in England. 35 A rescuer who acts
on such a moral compulsion that having regard to his powers and his opportunities he would feel disgraced if he
merely stood by would be entitled to succeed. 36 The impulsive desire to save human life when in peril is one of
the most beneficial instincts of humanity. 37
Rushing in front of train.— The plaintiff's husband saw a boy standing on a track in imminent danger from an
approaching train, which had failed to give the statutory signal. To rescue the boy the deceased rushed upon the
track immediately in front of the moving train, and in that act was killed. It was held that the deceased was not guilty
of contributory negligence, since a dangerous situation had been created by the negligent operation of the train,
and the deceased was justified in making the effort to save the boy; provided he acted with such care as a prudent
person would have shown in such an emergency. The law has so high a regard for human life that it will not impute
negligence to an effort to preserve it, unless the exposure is clearly rash and reckless. 38
Injury sustained while rescuing.— While the plaintiffs, husband and wife, were in a shop as customers, a skylight in
the roof of the shop was broken, owing to the negligence of contractors engaged in repairing the roof, and a portion
of the glass fell and struck the husband, causing him a severe shock. His wife, who was standing close to him, was
not touched by the falling glass, but, reasonably believing her husband to be in danger, she instinctively clutched
his arm, and tried to pull him from the spot. In doing this she strained her leg in such a way as to bring about a
recurrence of thrombosis. In an action to recover damages from the contractor, it was held that the husband was
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entitled to damages, and that the wife was also entitled to damages, inasmuch as what she did was, in the
circumstances, a natural and proper thing to do. 39
The plaintiff, a police constable, was on duty inside a police station in a street in which were a large number of
people, including children. Seeing the defendants’ runaway horses with a van attached coming down the street he
rushed out and eventually stopped them, sustaining injuries in consequence, in respect of which he claimed
damages. It was held that the defendants’ servant was guilty of negligence in leaving the horses unattended in a
busy street, and that as the defendants must or ought to have contemplated that some one might attempt to stop
the horses in an endeavour to prevent injury to life and limb, and as the police were under a general duty to
intervene to protect life and property, the act of, and injuries to, the plaintiff were the natural and probable
consequences of the defendants’ negligence. 40
7(E) Imputed Contributory Negligence
The law recognises certain situations where the plaintiff though not himself negligent is identified with another
person whose negligence is imputed to him to debar him from recovering full amount of damages by holding him
guilty of contributory negligence. This doctrine of identification or imputability though originally of very wide scope is
now confined within narrow limits. It now applies only to those relations alone where one person is held responsible
for another's wrong whether he be plaintiff or defendant. In other words, a plaintiff is identified with another only if
that other's negligence would be imputed to him if he were a defendant. This is described as the “bothways test”
and makes identification co-extensive with vicarious liability. 41 Thus the negligence of a servant or agent acting in
the course of employment but not of any independent contractor can be pleaded as contributory negligence of the
plaintiff. 42 One spouse may be held the servant or agent of the other spouse in certain situations. 43
Doctrine of identification or imputability.— According to this doctrine if a person voluntarily engaged another person
to carry him, he so identified himself with the carrier as to be precluded from suing a third party for negligence in
cases where the carrier was guilty of negligence. “The deceased must be considered as identified with the driver of
the omnibus in which he voluntarily became a passenger, and the negligence of the driver was the negligence of
the deceased.” 44 But this principle of identification was expressly overruled in the case of The Bernina , 45 in
which it is laid down that where damage is sustained by the concurrent negligence of two or more persons, there is
a right of action against all or any of them at the plaintiff's option, and the exception of contributory negligence
extends only to the acts and defaults of the plaintiff himself, or of those who are really his agents. There is, now, no
longer any inference of law that the driver of an omnibus, or a coach, or a cab, or the engineer of a train, or the
captain of a vessel and their respective passengers, are so far identified as to affect the latter with any liability for
the former's contributory negligence. 46
The Supreme Court has accepted this view and has held that contributory negligence of the driver can not be
imputed to the passengers. 47
An innocent ship damaged by collision through the fault of two other ships can recover the whole damage from
either of the delinquent ships. 48 A collision having occurred between the steamships Bushire and Bernina through
the fault or default of the masters and crew of both, two persons on board the Bushire , one of the crew and a
passenger, neither of whom had anything to do with the negligent navigation, were drowned. The representatives of
the deceased having brought actions against the owners of the Bernina for negligence, it was held that the
deceased persons were not identified in respect of the negligence with those navigating the Bushire , and that the
representatives could recover the whole of the damages, the Admiralty rule as to half damages not be applicable to
actions under LORD CAMPBELL's Act. 49 Where the drivers of two rival omnibuses were competing for
passengers, the one endeavouring to get before the other, and both driving at great speed, and in trying to avoid a
cart which got in their way, the wheel of the defendant's omnibus came in contact with the projecting step of the
omnibus on which the plaintiff was riding, and caused it to swing against a lamppost, and the plaintiff was thrown off
and injured, it was held that he was not disentitled to recover damages from the proprietor of the rival omnibus, by
reason of misconduct on the part of his own driver. 50
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Children in the custody of adults.— The doctrine of identification extended to identify an infant injured in an accident
with the adult in charge of him at that time and so contributory negligence of the person in charge was imputed to
the child suing for damages. 51 This too has been overruled since the decision in Mills v. Armstrong . 52 Where an
infant in charge of his grandmother while crossing the road was injured by the negligent driving of a vehicle, it was
held that the contributory negligence of the grandmother was not defence to the infant's claim for damages. 53
The Bombay High Court has laid down that although the mother of a child might have been guilty of negligence
which contributed to the accident, yet if the defendant could, by the exercise of ordinary care and diligence, have
avoided the mischief which happened, her negligence would not excuse him. 54
8. BREACH OF STATUTORY DUTIES 55
If things authorised to be done by a statute are carelessly or negligently done, an action is maintainable. 56 Such a
breach is known as “statutory negligence”. 57 The word “negligence” in such cases means adopting a method
which in fact results in damage to a third person, except in a case where there is no other way of performing the
statutory duty. So that it is negligent to carry out work in a manner which results in damage unless it can be shown
that, and that only, was the way in which the duty could be performed. 58 Powers given by a statute must be
exercised reasonably, and not to the prejudice of the public. 59 The correct legal position is that in a suit claiming
damages based on common law the defendant can successfully plead that the offending act was done under
statutory authority but this defence is not available if the statutory authority was negligently exercised. 60 It is not
correct to say that mere negligent exercise of statutory power furnishes a cause of action. 61 It is only when a duty
of care is owed by the authority to the person that he can claim damages so where a state authority exercised
statutory powers for the protection of inmates of nursing homes and negligent exercise of that power resulted in
closure of a nursing home causing great economic loss to the owners of the nursing home, the owners had no
remedy to sue the authority in damages for negligence for it could not be said that a common law duty of care was
owed by the authority to the owners of the nursing home. 62
But an omission to perform, a statutory duty as distinguished from negligence in the performance of it does not give
rise to a right of action in favour of a person suffering damage by reason of such omission unless such a right is
expressly or impliedly given by statute. 63 Damage resulting from the omissive breach of a statutory duty cannot
be recovered unless the damage in question is of a kind which the legislative body had a mind to prevent in
enacting the statute. 64 Omission to exercise a statutory power or discretion is dealt with elsewhere. 65 It has
been observed by the Supreme Court that “compensation for violation of a statutory duty to enable individuals to
recoup financial loss has never been recognised in India. 66
The defence of volenti non fit injuria is not applicable in an action based on a breach of statutory duty, 67 but
contributory negligence on the part of the plaintiff is a good defence. 68 An action in respect of injuries caused by
breach of a statu tory duty does not differ from an action in respect of injuries caused by any other wrong, 69 for an
action for breach of a statutory duty is properly an action in tort. 70
There are three classes of cases in which a liability may be established founded upon a statute:—
(1) Where there is liability existing at common law, and that liability is affirmed by a statute which gives a
special and peculiar form of remedy different from the remedy which existed at common law; there, unless
the statute contains words which expressly or by necessary implication exclude the common law remedy,
the party suing has his election to pursue either that or the statutory remedy.
(2) Where the statute gives the right to sue merely, but provides no particular form of remedy, there the party
can only proceed by action at common law.
(3) Where a liability not existing at common law is created by a statute, which at the same time gives a special
and particular remedy for enforcing it, the remedy provided by the statute must be followed. 71 But in this
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case the general scope of the Act and the nature of the statutory duty must be looked at before a proper
conclusion can be reached as to whether the legislature intended the statutory remedy to be the only
remedy for the breach of the statutory duty. 72
It is essentially a question of construction whether a statute creating a new obligation and providing a mode for
enforcing it also impliedly enables a personinjured by omission to perform the obligation to sue for damages. 73
When the statute provides a remedy by criminal prosecution or otherwise the presumption is that the remedy of civil
suit is excluded. 74 But this presumption is rebutted where on the construction of the Act it is apparent that the
obligation was imposed for the benefit or protection of particular class of persons as in the case of Factories Acts
and similar legislation. 75 The inference that there is a concurrent right of civil action is readily drawn when the
predominant purpose is manifestly the protection of a class of workmen by imposing on their employers the duty of
taking special measures to secure their safety. 76 Thus action for damages was held to be maintainable at the
instance of a workman who suffered personal injuries because of breach of statutory duty to fence certain machin
ery in a factory, 77 or because of omission to take precautions statutorily prescribed for protection of mine workers.
78
A distinction must also be drawn between a public law remedy of judicial review including declaration and injunction
for enforcing due performance of a statutory duty and a private law remedy by way of a suit for damages. 79 The
breach of a public law right does not by itself give rise to a claim for damages. 80 Further, mere careless exercise
of statutory powers or duties does not furnish cause of action for damages and the plaintiff has to show that
circumstances are such as to raise a duty of care at common law. 81 The principles as to when mere breach of a
statutory duty causing damage will give rise to a private law claim for damages were restated by the House of Lords
as follows: “The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise
to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter
of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public
and that Parliament intended to confer on members of that class a private right of action for breach of the duty.
There is no general rule by reference to which it can be decided whether a statute does create such a right of action
but there are a number of indications. If the statute provides no other remedy for its breach and the Parliamentary
intention to protect a limited class is shown that indicates that there may be a private right of action since otherwise
there is no method of securing the protection the statute was intended to confer. If the statute does provide some
other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable
by those means and not by private right of action.—However, the mere existence of some other statutory remedy is
not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class
was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to
factory premises are enforceable by an action for damages, notwithstanding the imposition by the statutes of
criminal penalties for any breach.—The cases where a private right of action for breach of statutory duty have been
held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general
administrative functions imposed on public bodies and involving the exercise of administrative discretions.” 82 In
this case it was held that a local education authority's obligation to provide sufficient schools for pupils within its
area and to have regard to the need for securing special treatment for children in need of such treatment under the
Education Act s, 1944 and 1981 could give rise to public law remedy of judicial review but there was no
corresponding private law right to damages for breach of statutory duty. 83 But in Phelps v. Hillington Borough
Council , 84 it was held that an educational psychologist employed by a local authority and called in for advising
the authority in respect of children suffering from learning deficiencies owed a common law duty of care to such a
child and the authority would be vicariously liable for his negligence. 84 Phelps case was followed in case of an
education officer employed by a local education authority and common law duty was applied to him in relation to a
child with special educational needs on the basis of three stage test of foreseeability of damage, proximity and that
the situation was one in which it was fair, just and reasonable that the law should impose a duty of care. 85 But in
the particular circumstances of the case negligence was negatived.
The aforesaid principles were applied also in other cases. In ORourke v. Camden London Barough Council 86 it
was held that section 63 of the Housing Act 1985 containing provisions to provide accommodation for homeless
persons did not give rise to a cause of action for damages in private law. The factors that were taken into account in
reaching the conclusion that Parliament did not intend that a breach of the duty to provide accommodation to
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homeless was actionable in tort were: (i) the duty was enforceable in public law by individual homeless persons; (ii)
the Act was a scheme of social welfare on grounds of public policy and public interest to confer benefits at the
public expense not only for the private benefit of homeless persons but for the benefit of society in general, and (iii)
the existence of the duty depended on the housing authority's judgment and discretion. 87 But common law duty of
care was inferred in Barret v. Enfield London Council . 88 In this case the respondent council obtained for the
appellant, when he was below one year of age, a place for safety order under section 28(1) of the Children and
Young Persons Act, 1969 and subsequently a care order under section 1 of the Act. The appellant remained in care
of the respondent till he was 17. Thereafter the appellant claimed damages on the ground that the respondent
council was in breach of a common law duty of care owed to him in consequence of which he suffered deep-seated
psychiatric problems caused by the respondent who acting by its social workers and others negligently failed to
safeguard the plaintiff's welfare. The appellant's claim was struck out without trial but that order was set aside in
appeal by the House of Lords. It was held that while a decision to take a child into care pursuant to a statutory
power was not justiciable, it did not follow that having taken a child into care, a local authority could not be liable for
what it or its employees did in relation to the child even if that involved some element of discretion for if the authority
uses its discretion so unreasonably that it falls outside the discretionary power conferred upon it, there is no a priori
reason for excluding all common law liability. 89 In B.V. Attorney General of New Zealand it was held that the
common law duty of care was owed by the Director General of Social Welfare and individual social workers to the
child or young persons in respect of whom the statutory duty to arrange for a prompt enquiry existed in a particular
case under the Children and young persons Act (New Zealand) 1974. 90
An employer wanting to aviod liability on a claim for damages for breach of statutory duty must show that he has
complied with his statutory duty by taking all reasonable steps to prevent his employees from committing breaches
of regulations. Where an employer ought to have realised that there was a substantial risk that skilled workmen
would not be sufficiently familiar with regulations which imposed a statutory duty on them, in situations where no
danger was apparent, it would be his duty to instruct the workers on the steps they must take to avoid a breach.
This duty exists even where failure to give such instructions did not amount to negligence at common law. 91
In a suit for damages, the plaintiff must prove that the injury suffered is of a kind which is within the aim and scope
of the Act creating such duty, and not merely an accidental result of its breach. 92 He must prove not only the
breach, but also that the breach caused the injuries. 93
A public utility like a State Electricity Board, which is a statutory authority, is bound to render service efficiently
promptly and impartially to the members of the public and is liable for damages when there is deficiency in service
e.g. unreasonable delay in giving electrical connection from the date of demand of deposit for connection. 94
Liability-accident at gate of leval crossing .—Where the defendant company neglected to have gates and a
watchman at a crossing as required by certain Acts, and one day a child was lying on the rails with one foot severed
from its body, it was held that the accident to the child was caused by the company's omission to fence. 95
Failure to keep sufficient water pressure.— A water company was by statute required to maintain water-pipes with
fire plugs charged at a certain pressure to be used in case of fire. The company failed to keep the required
pressure, as a result of which, so it was alleged, when the plaintiff's house, on one occasion, caught fire it could not
be promptly extinguished and the house was destroyed. It was held that the only remedy contemplated by the
statute was the recovery of the penalty provided for in the statute. 96 Under similar circumstances where an action
was brought against a municipality, the Bombay High Court held that the municipality was not liable as its failure to
make an adequate and reasonable provision for extinguishing fire did not amount to misfeasance but to non-
feasance, and, therefore, no action lay. 97
Leaving trench open.— The defendant municipality excavated a trench for a pipe drain in a public lane. The trench
remained open for some time and owing to a heavy fall of rain water collected in it and by percolation or saturation
caused a considerable subsidence which resulted in a very heavy damage to the plaintiff's houses close by the
trench. It was held that the keeping of the drain open for a considerable time amounted to negligence and the
defendant was liable. 98
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Allowing rain-water to discharge on another's land.— Where a railway company allowed the rain water to flow for
some four miles by the sides of their railway line through gutters made up of continuous burrow pits and then
allowed it to discharge itself on the lands of the plaintiff, the railway company was held not to have exercised the
powers conferred by the Indian Railways Act and was held liable for negligence.1
Death caused by electric current carried by derrick.— A derrick used in putting up a house was brought into contact
with the overhead wires of the respondent company, with the result that a current of electricity was diverted to the
street and killed the plaintiff's husband. It was held that the respondents being authorized by an Act in the
alternative to place their wires either overhead or underground were not guilty of negligence in adopting one
alternative rather than the other, or in neglecting to insulate or guard the wires in the absence of evidence that such
precautions would have been effectual to avert the accident. 2
Insufficient drains.— Where municipal authorities under their statutory powers took over the care of a watercourse,
and made it into a public drain which proved in course of time to be increasingly insufficient to hold and pass on the
mixture of slime and sewage poured into it, with the result that the plaintiff's property was flooded thereby, it was
held that they were liable for negligence, notwithstanding that the drain when first formed was sufficient for its
purpose. 3
9. MASTER'S LIABILITY TO SERVANT
The common law duty of a master in relation to his servant was restated by the HOUSE OF LORDS in McDermid v.
Nash Dredging and Reclamation Co. Ltd ., 4 as follows: “The relevant principle of law is divided into three parts.
First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work
provided for him is a safe one. Second, the provision of a safe system of work has two aspects: (a) the devising of
such a system and (b) the operation of it. Third, the duty concerned has been described alternatively as either
personal or non-delegable. The essential characteristics of the duty is that, if it is not performed, it is no defence for
the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom
he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-
performance of the duty.” 5 The qualification that the duty is “personal” or “non-delegable” does not mean that the
employer cannot delegate it “but only that the employer cannot escape liability if the duty has been delegated and
then not properly performed”. 6 In McDermid's case 7 the plaintiff was employed by the defendants as a deck
hand in the course of dredging operations carried on by the defendants and their parent company as a joint
enterprise. The plaintiff was eighteen years of age with a limited experience of dredging operations. The plaintiff
was seriously injured while working on a tug owned by the parent company as a result of the negligence of the
tugmaster employed by that company. The tugmaster was not a servant of the defendants yet they were held liable
on the reasoning that they had delegated both their duty of devising a safe system of work and its operation to the
tugmaster who was negligent in failing to operate that system. An employee is not disentitled to recover simply
because his occupation required him to run the risk of the injury. 8 Such a rule prevails in some states of the United
States but has not been accepted in England. 9
In a recent case 10 the High Court of Australia in a joint judgment laid down : “An employer owes a non-delegable
duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there
is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take
reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates
the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of
thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. ” 11 In this case the
employee was employed to load and stack boxes into the back of a truck which was filled with a mechanical lifting
platform. The platform was powered by the battery in the truck and was operated by a switch. It emitted a loud
noise when it was being raised and a ‘clanging’ sound when it hit the top to bring it level with the tray of the truck.
But no sound was emitted when the platform was being lowered. The employee in the course of his work stepped
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backwards when the platform was being lowered without realizing that it was being lowered and fell heavily and
suffered injuries. The risk that the employee would attempt to step backwards in the belief that the platform was
raised without checking whether this was the case, was plainly foreseeable. The risk would have been readily
avoided by taking simple measures like fitting of a warning ‘beeper’ or the introduction of a system for giving of an
oral warning when the platform was being lowered. The employer was, therefore, held in breach of its duty to take
reasonable care to prevent the risk of injury to the employee who was not held guilty of any contributory negligence.
When the employer knows that acts done by employees during their employment might cause physical or mental
harm to a particular fellow employee, it is the employer's duty if he has power to do so to supervise or prevent such
acts and in case he fails to do so he may become liable in negligence. 12 A female police officer who was sexually
abused by a fellow officer and was later subjected to a campaign of harassment and victimisation by fellow officers
and on whose complaint no step was taken to prevent these acts was held to have a prima facie case against the
commissioner of police in negligence for breach of duty. 13 The employer may also be liable to the employee for
psychiatric injury suffered by him which was caused by stress at work provided it was foreseeable e.g. when the
employee had complained about his health and no steps were taken to reduce the stress by providing extra help.
14 But if the psychiatric injury was not foreseeable, e.g. when the employee though complaining about the amount
of work she was required to perform never suggested either expressly or impliedly that the duties required of her
were putting or would put her health at risk, the employer was not held liable for the psychiatric injury which the
employee suffered. 15
Without prejudice to its generality or non-delegable character, the common law duty, as explained above, will
include the following:—
1 The master must furnish the employees with adequate materials and resources, for the work. 16 On the
master rests “the duty of taking reasonable care to provide appliances, and to maintain them in a proper
condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.”
17 Thus a master was held liable for supplying a bad rope for staging to paint a ship 18 or a motor-car the
starting gear of which was defective. 19
The employer is, however, under no duty to dismiss or refuse to employ an adult employee merely because
there might be some risk to the employee in doing the work. 20
2 The master is bound to take all reasonable precautions to secure the safety of his servants or workmen. 21 If
hidden and secret dangers exist upon his premises, known to him and unknown to his workmen, it is his
duty to disclose them to the latter, so that they may take precautions against them. 22 Extraordinary
situation e.g. a riot in the town may bring in additional duty of care. 23
A master owes no duty to his servant to safeguard the property of the servant which a servant for his own
convenience brings on the premises of his master. There is no duty on the master to take reasonable care
to protect the servant's clothing from theft. 24 The duty does not also extend to protect the servant from
economic loss. 25 There is also no duty to take care that the manner of dismissal does not cause financial
loss. 26
3 The master is responsible for his own negligence causing injury to the servant. 27 Such negligence may be
brought home to the master, by showing either his personal interference to be the cause of the accident, or
that he negligently retained incompetent servants whose incompetency was the cause of the accident. 28
After abolition of the doctrine of common employment the master is liable for the negligence of a fellow
servant acting in the course of employment although there was no negligence of the master in appointing
or retaining him. 29
In addition to the common law duty, statutes also lay down the duty to provide safe system of work including safe
premises “so far as reasonably practicable.” In deciding upon the question whether there is breach of such a duty it
has to be considered whether, having regard to his degree of control and knowledge of the likely use, it would have
been reasonable for the employer to take measures which would ensure that the premises were safe and without
risk, the onus being on him to show that weighing the risk of health against the means, including cost, of eliminating
the risk, it was not reasonably practicable for him to take those measures. 30 The employer has also to ensure
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suitable work equipment. Something viz. door closure which was work equipment did not cease to be so simply
because it had broken down and someone had to repair it. 31
Negligence on the part of the servant may disentitle him to recover, wholly or partly, depending on whether he was
entirely or partly to be blamed for the damage suffered by him. 32
Want of precaution to secure safety of servant.— Where a master ordered a servant to take a bag of corn up a
ladder which the master knew, and the servant did not know, to be unsafe, and the ladder broke, and the servant
was injured, the master was held liable. 33 Where the defendants, well knowing that certain car cases were
diseased and infectious, employed the plaintiff, who was ignorant of that fact, to cut them up whereby the plaintiff
was infected by the disease and suffered injury therefrom, it was held that the defendants were liable. 34
Failure to provide goggles.— A workman employed as a garage hand had, to the knowledge of his employers, only
one good eye. In working on the back axle of a vehicle to remove a U-bolt which had rusted in, he struck it with a
hammer and a metal chip flew off seriously injuring his good eye. He was not wearing goggles. He claimed
damages against his employers in respect of that injury on the ground that they were negligent in failing to provide
and require the use of goggles as part of the system of work. It was held that the employers were negligent in failing
to provide the workman with protective goggles for work of this description, and that he was entitled to damages. 35
Want of safety appliances.— The plaintiff, a window cleaner, was employed by the defendants, a firm of
contractors, to clean the windows of a club. While, following the practice usually adopted by employees of the
defendants he was standing on the sill of one of the windows to clean the outside of the window and was holding
one sash of the window for support, the other sash came down on his fingers, causing him to let go and fall to the
ground, suffering injury. On a claim by him against the defendants for damages it was held that even assuming that
other systems of carrying out the work, e.g. by the use of safety belts and ladders, were impracticable, the
defendants were under an obligation to ensure that the system that was adopted was as reasonably safe as it could
be made and that their employees were instructed as to the steps to be taken to avoid accidents; the defendants
had not discharged their duty in this respect towards the plaintiff; and, therefore, they were liable to him in respect
of his injury. 36
The plaintiff, while working for the defendants on the drip edge of a flat roof fell on to an adjoining sloping roof,
about two feet below, made of asbestos. The asbestos broke and he fell more than ten feet to the ground and was
seriously injured, his expectation of life being materially shortened. He claimed damages from the defendants,
alleging that they were in breach of their common law duty to him to provide a safe system of working. It was held
that the risk of the plaintiff falling through the asbestos roof was one which the defendants could and should have
foreseen, and that in failing to take such precautions as would guard him from falling they had failed in their duty to
provide a safe system of working and were guilty of negligence at common law. 37
Dangerous machinery.— The plaintiff was employed since twelve years by the defendants to oil and grease the
machines in the factory of the defendants. Out of about 500 machines in the factory about 12 were dangerous to oil
when in motion. No specific instructions were given to the plaintiff not to oil these machines when in motion nor was
any notice put on these machines to that effect. The plaintiff was injured while oiling one of these machines when in
motion. It was held that the defendants were liable for breach of the common law duty not to expose the plaintiff to
unnecessary risk. 38 Where the real cause of the accident to the plaintiff was that his neck-tie became entangled in
a dangerous machinery on which he was working and his employers failed to issue instructions for proper dress, it
was held that the employers were at fault for not correcting his improper dress but that the plaintiff was also guilty of
contributory negligence in not having taken the elementary precaution of seeing that his neck-tie was in a safe
position. 39 It has, however, been held that a master was not liable merely because he failed to safeguard the
servant from risks which he could not reasonably foresee. 40
Negligence of Co-employee.— T, an employee of the defendants, after finishing the day's work, was bicycling along
a road in the defendant's premises towards the pay office to collect his wages. After having travelled some distance
T rode across a bus park on the defendant's premises and negligently knocked down one S, who was also an
employee of the defendants. S was killed as a result of the collision and his widow brought an action against the
defendants for damages on the ground that the death of S was caused by the negligence of T who was acting in the
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course of his employment and that the defendants were vicariously liable. It was held that T was acting in the
course of his employment at the time of the accident and that the defendants were liable for T's negligence. 41
A workman suffered personal injuries arising in part from his own error in part from the mistake of a crane driver
who was a fellow employee. In an action for damages, the workman alleged that his employer was liable for the
negligence of the crane driver; it was held that the crane driver's mistake was not to be judged by the same
standard as that of the workman, since whereas negligence was founded on a breach of duty, contributory
negligence was not. The employer's duty was a personal duty to take reasonable care for the safety of his servants;
and the law required a higher standard of care from him, whether acting by superior servants or fellow servants,
that it required from an injured workman; and the plaintiff was therefore entitled to damages. 42
Want of safe working place. —The appellant was a fitter employed by the first respondents who were lift repairers
and who had entered into an agreement to maintain a lift on the premises occupied by the second respondent. The
left door of the machine-house of the lift was defective. The appellant as well as other employees had reported this
defect but neither of the respondents took any steps to repair it. The appellant along with two other employees went
to replace some wire ropes and found that the right door was open but the left door was jammed in the machine-
house. The appellant tried to lever himself up by putting his weight on the left door but the door gave way and the
appellant fell and was injured. It was held that the first respondents as employers were liable as they failed to
provide a safe place of work and second respondents who were the occupiers were also liable as jamming of the
left door created an unusual danger to the appellant which he did not fully appreciate. 43
Master not liable for the negligence of third party.— The plaintiff's eye was injured by a splinter of metal which flew
off a cold chisel which he was using at his work; the cause of the accident was that the head of the chisel was
dangerously hard. The chisel had been manufactured by the second defendants and had been supplied by them to
the plaintiff's employers, the first defendants, who had issued it to the plaintiff. The chisel was a new one when
issued to the plaintiff two or three weeks before the accident. In an action for damages for personal injuries to the
plaintiff caused by the negligence of the first defendants or the second defendants or both, it was held that (i) an
employer who buys tools from a reputable manufacturer to be put to uses for which the tools are intended by the
manufacturer is not under a duty either to examine the tools before issuing them to employees or to institute
frequent inspections of tools after use, unless there is something which suggests that the tools are defective; and,
accordingly, the plaintiff had not proved negligence on the part of his employers; (ii) the plaintiff, having established
that the chisel came direct from the manufacturers and having shown that the excessive hardness had not been
produced at his employers’ factory, had discharged the burden of proving negligence on the part of the
manufacturers and was entitled to recover damages against them. 44 The plaintiff was employed by the
defendants in their foundry. Their business was to buy scrap metals to be melted down. In one load of scrap there
was a live shell which would normally have been removed from the scrap. The plaintiff urged by a third workman T
to hit the shell did hit it with a sledge hammer resulting in explosion of the shell and injury to the plaintiff. It was held
that although T, the third workman, was negligent, it was a case of one isolated fact of wilful misbehaviour which
was outside the scope of T's employment with the defendants for which the defendants could not be vicariously
liable. 45
Dangerous employee causing injury .—For nearly four years one of the defendants’ employees had made a
nuisance of himself to his fellow employees, including the plaintiff, a cripple, by persistently engaging in skylarking,
such as tripping them up. Many times he had been reprimanded by the foreman and warned that he would hurt
someone, but without effect. No further steps were taken to check this conduct by dismissal or otherwise.
Subsequently, this employee, indulging in horse-play, tripped up the plaintiff and injured him. In a claim by the
plaintiff against the defendants for damages on the ground that they had failed to maintain such discipline among
their employees as would protect him from dangerous horse-play, it was held that as this potentially dangerous
misbehaviour had been known to the employers for a long time, and as they had failed to prevent it or remove the
source of it, they were liable to the plaintiff for failing to take proper care of his safety. 46
Injury to window cleaner.— The plaintiff, a window cleaner with a life long experience in the trade, was cleaning
from outside a window in a brewery, when a handle, by which he was supporting himself gave way, and he fell and
received injury. He had often cleaned the window before, and knew that the woodwork was unsound. From his
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experience he knew that it was unsafe to trust to handles. He had worked for the defendants for some 14 years,
and was already thoroughly experienced when he joined them. He had never received any instructions regarding
safety precautions, except a standing order to the effect that if he found a window which presented unusual difficulty
or risk, he was to report to the defendants for further instructions. In an action for damages for negligence, it was
claimed, first, that the defendants were under a duty to provide a place of work as safe as reasonable skill and care
could make it, and that at least they should have inspected the premises from time to time; secondly, that they
should have issued warnings in writing and orally from time to time, against the dangers of window cleaning in
general, and those connected with unsafe handles in particular. It was held that in the case of so experienced a
workman as the plaintiff, the defendants had fulfilled their duty to take reasonable care for his safety. That duty,
though conveniently divided for the purposes of argument in individual cases into such sub-divisions as the
provisions of reasonably safe premises, or tools, or systems of work, was one and the same. As to premises, there
was a great difference in degree between the performance of the duty when the premises were the master's own
and where the premises were those of a stranger. As to system, when the workman was so experienced, and the
danger was so patent, the issue or repetition of warnings would be likely to do more harm than good. 47
Injury by dangerous tool.— Under the common law an employer's duty was to provide a reasonably safe equipment
or tool and that duty was taken to have been discharged if the employer purchased the equipment or tool from a
reputable source whose latent defect he had no means of discovering. If an employee got injured by such a
defective equipment or tool he could not make the employer liable though he could sue the manufacturer for
damages. This legal position was clearly laid down by the HOUSE OF LORDS in Davie v. New Merton Board Mills
Ltd. 48 In this case the plaintiff, a maintenance fitter, was knocking out a metal key by means of a drift and hammer
when, at the second blow of the hammer, a particle of metal flew off the head of the drift and into his eye, causing
injuries. The drift, which had been provided for the plaintiff's use by his employers although apparently in good
condition, was of excessive hardness and was, in the circumstances, a dangerous tool; it had been negligently
manufactured by reputable makers, who had sold it to a reputable firm of suppliers who, in turn, had sold it to the
employers, whose system of maintenance and inspection was not at fault. The plaintiff claimed damages for
negligence against his employers on the ground that they had supplied him with a defective tool, and against the
makers on the ground that, as the manufacturers of the drift, they were under a duty to those who they
contemplated might use it. It was held that the employers, being under a duty to take reasonable care to provide a
reasonably safe tool had discharged that duty by buying from a reputable source a tool whose latent defect they
had no means of discovering. It was, however, held that the manufacturers were liable.
The plaintiff, who was employed by defendant No. 1, lost an eye when a splinter of steel flew from a chisel which he
was hammering. The chisel was manufactured by defendant No. 2 from alloyed steel purchased from a third party
who had heat treated it after its manufacture. It was found that defendant No. 1 had known that previously an
accident was caused by the chisel to the plaintiff's leading hand who had failed to withdraw it from circulation and
also that the defect in the chisel was caused by neglect in the original heat treatment by the third party. It was held
that the plaintiff was entitled to succeed against defendant No. 1 but defendant No. 2 was not liable to the plaintiff
because it was the keeping of the chisel in circulation by defendant No. 1 with knowledge that it was dangerous that
caused the accident and accordingly, the chain of causation by defendant No. 2 was broken and that defendant No.
2 having got a competent hardener, viz. the third party, to do the hardening of the chisel from them was not liable
for the faulty hardening. 49 The aforesaid cases 50 which illustrate the common law led to great hardship and left
the employee without a remedy in a case where the manufacturer and the employer were divided in time and space
by decades and continents so that the person actually responsible was no longer traceable. The British Parliament,
therefore, intervened and enacted the Employer's Liability (Defective Equipment) Act, 1969. Section 1(1) of the Act
provides that where (a) an employee suffers personal injury (which includes death) in the course of his employment
in consequence of a defect in equipment provided by his employer for the purposes of the employer's business; and
(b) the defect is attributable wholly or partly to the fault of a third party, the injury shall be deemed to be also
attributable to the negligence on the part of the employer, but without prejudice to the law relating to contributory
negligence and to any remedy by way of contribution or in contract or otherwise which is available to the employer
in respect of the injury. The section has been liberally construed and even a ship supplied by its owner for his
business has been held to be an equipment within the meaning of the Act. 51 A flagstone provided by employer for
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purposes of their business of repairing and relaying pavement has also been held to be an equipment within the
Act. 52
Master not liable when servant would not have taken precaution.— The respondent was employed as a moulder for
all his working life in the appellants’ foundry. The appellants had in their stores spats which could be had by any
workman for the asking and strong boots which could be had on payment. The appellants did not advise the
respondent to wear protective clothing as the respondent was an experienced moulder and knew the risk of metal
splashing attached to his work. The respondent sustained injury by molten metal splashing on his left foot as the
ladle of molten metal he was holding slipped. At that time he was wearing ordinary boots. The injury would not have
occurred if he had been wearing protective spats or special boots. It was held that the appellants were not liable as
they had discharged their duty of care by making protective clothing available to the respondent who was
experienced and knew the danger involved in the work. 53
10. BURDEN OF PROOF IN ACTIONS OF NEGLIGENCE
General rules .—As a rule, the onus of proving negligence is on the plaintiff. He must show that he was injured by
an act or omission for which the defendant is in law responsible. 54 There must be proof of some duty owed by the
defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff. 55 Further it must be shown that
the negligence is the proximate cause of the damage. Where the proximate cause is the malicious act of a third
person against which precautions would have been inoperative, the defendant is not liable in the absence of a
finding either that he instigated it or that he ought to have foreseen and provided against it. 56
The question of burden of proof as a determining factor does not arise at the end of the case except in so far as the
court is unable to come to a definite conclusion and the question arises as to which party has to suffer from this. 57
Thus when the plaintiff claimed damages from her employer that she suffered cramp of the hand or forearm due to
repetitive typing work commonly called repetitive stress injuries making her unfit for typing work which led to her
discharge and the medical evidence produced by the parties was neither satisfactory to establish that the cramp
had an organic cause as alleged by the plaintiff nor was it satisfactory to establish that the cause was conversion
hysteria as alleged by the defendant the action failed as the burden of proof of establishing the organic cause was
on the plaintiff. 58
Where the plaintiff has adduced evidence sufficient to call upon the defendant to reply and the defendant
thereupon, being under the burden of laying the material facts before the Court, has refrained from doing so, the
onus of proving negligence is discharged by the plaintiff. 59
Where injury is caused by negligent driving of a motor-car, proof by the plaintiff that the car which caused the
accident belonged at the time to the defendant affords prima facie evidence that the car was driven either by the
defendant or by his servant or agent. The defendant may displace that presumption by proving that the car was not
under his control at the time of the accident. 60
Ordinarily, a person who drives a vehicle on highway has a duty to take reasonable and proper precaution in the
use of the vehicle. The driver must exercise not only care but also skill. He must observe the ordinary rules of the
road. 61 He should not drive at an excessive speed. What is an excessive speed will depend upon the surrounding
circumstances of the case. 62
The principle that a man cannot recover damages if he has consented to run the risk of accidental harm is
applicable to cases arising out of accident on a road. 63
The onus of proving contributory negligence is on the defendant. 64

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Composite negligence.— Where injury is caused by the wrongful act of two parties, the plaintiff is not bound to a
strict analysis of the proximate or immediate cause of the event to find out whom he can sue. Subject to the rules as
to remoteness of damage, the plaintiff is entitled to sue all or any of the negligent persons and it is no concern of his
whether there is any duty of contribution or indemnity as between those persons, though in any case he cannot
recover on the whole more than his whole damage. He has a right to recover the full amount of damages from any
of the defendants. 65 Further, “if an injured person shows that one or the other or both of two persons injured him,
but cannot say which of them it was, then he is not defeated altogether. He can call each of them for an
explanation.” 66 Thus if a passenger in a bus is injured when the bus collided with an other vehicle and when he is
not in know of the facts as to how the collision had taken place, he can sue both the drivers and their employers for
damages. In such a case, the plaintiff cannot be defeated by the simple device of the defendants’ abstaining to
place the true facts before the Court. If they do not disclose relevant information, adverse inference can be drawn
and the Court may hold that both were to blame for the accident and liable to pay damages to the plaintiff. 67
Exception; res ipsa loquitur. —Accidents may be of such a nature that negligence may be presumed from the mere
fact of the accident, the presumption depending on the nature of the accident. 68 Pulling a wrong rein is evidence
of negligence, 69 so too is the spurring of a horse when it is within kicking distance of a passer-by, 70 or the
bolting of a horse which has been left unattended in a public street, 71 or the blowing of steam at a level-crossing.
72 When a public Transport vehicle plunged into a river on collapse of a culvert, presumption of negligence against
the State Highways Department was raised. 73 It was also held that the explanation that there was heavy rain did
not absolve the Department without indicating what anticipatory preventive action was taken. 74
Where damage is caused by an object under the management of the defendant or his servants, and the accident is
such as, in the ordinary course of things, does not happen if those who have the management use proper care, a
presumption arises, in the absence of explanation by the defendant, that the accident was due to negligence: res
ipsa loquitur (the thing speaks for itself). 75 The maxim has not met with universal approval. As observed, by
GAUDREN J. in a recent Australian case : “It is in this country (Australia) no more than a Latin phrase describing a
permissible process of reasoning. The same is true in Canada. However, it may enjoy same higher status as a
principle of law or evidence in the United Kingdom.” 76 Indeed, in Canada it has been declared by a unanimous
Supreme Court “that the law would be better served if the maxim was treated as expired and no longer used as a
separate component in negligence action.” 77 In India the maxim has been applied in the manner it is applied in
the United Kingdom.
The maxim res ipsa loquitur has been considered by the Supreme Court in a number of cases. Ordinarily, mere
proof that an event or accident, the cause of which is unknown, has happened is no proof of negligence. The maxim
applies to cases where the peculiar circumstances constituting the event or accident proclaim that the negligence of
somebody is the cause of the event or accident. In the first place, the event or accident must be of a kind which
does not happen in the ordinary course of things if those who have management and control use due care;
secondly, it must also be shown that the event or thing which caused the accident was within the defendant's
control. 78 The maxim was applied to the collapse of a clock-tower abutting a highway in Delhi; 79 and to road
accidents involving motor-vehicles where a bus hit a tamarind tree 25 feet away, after uprooting a stone on the off-
side of the road; 80 when a bus overturned; 81 when a car dashed against a tree on the right extremity of the
road; 82 and when the engine of a truck caught fire. 83
The doctrine of res ipsa loquitur applies not only to a case where the thing that inflicted the damage was under the
sole management and control of the defendant but also where it is under the sole management and control of
someone for whom he is responsible or whom he has a right to control. 84 The thing need not be in exclusive
control provided the evidence shows outside influence a remote possibility. 85
The maxim means that an accident may by its nature be more consistent with its being caused by negligence for
which the defendant is responsible than by other causes, and that in such a case the mere fact of the accident is
prima facie evidence of such negligence. 86 If in the ordinary course of things a collision would not have occurred
between two moving bodies in charge of two different persons if both had taken due care and had not acted
negligently, the fact that there was such a collision would be prima facie proof that either or both of them acted
negligently. But in such cases the principle of res ipsa loquitur may not be of any assistance in fixing the negligence
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of one of the two drivers. 87 Even so, if the defendants fail to place true facts showing whose negligence caused
the accident, both may be held liable to a person injured in the accident. 88 There is a distinction between the case
of an accident caused by an inanimate object such as a bale of goods, and one caused by the misconduct of an
animate creature. 89 In the former case the inference may be that the defendant is liable, in the latter case there is
no certain inference, and the plaintiff will not have discharged the burden without proof of some negligence on the
part of the defendant. The maxim res ipsa loquitur is applicable only where the probability that the accident is due to
negligence is materially greater than that it is due to any other cause, and the circumstances contributing to the
accident are within the defendant's control.
The maxim may not be applied too liberally. It must also be remembered that what is said in relation to it in one
case cannot indiscriminately be applied to another case. It should not be applied as a legal rule but only as an aid to
an inference when it is reasonable to think that there are no further facts to consider. 90
“ Res ipsa loquitur is in essence no more than a common sense approach, not limited by technical rules, to the
assessment of the effect of evidence in certain circumstances. It means that a plaintiff prima facie establishes
negligence where (i) it is not possible for him to prove precisely what was the relevant act or omission which set in
train the events leading to the accident, but (ii) on the evidence as it stands, i.e. in the absence of any evidence
from the defendant, it is more likely than not that the effective cause of the accident, whatever it may have been,
was some act or omission of the defendant or of someone for whom the defendant was responsible, which act or
omission constitutes a failure to take proper care for the plaintiff's safety. The application of res ipsa loquitur is not
necessarily excluded merely because there has been a possibility of outside interference with the thing through
which the accident happened.” 91
Where an omnibus leaves the road and an accident takes place on the off-side and this is proved without more,
then the principles of res ipsa loquitur is at onceattracted. Negligence will be presumed as the cause of the event.
Unless the defendant rebuts this presumption, the plaintiff succeeds. To merely point out what the immediate cause
of the bus leaving the road was, e.g., there was a tyre burst or that it went into a skid is by itself no rebuttal of the
presumption. To displace the presumption, the defendant must prove, or must show from the evidence either that
the immediate cause was due to a specific cause which does not connote negligence on his part but points to its
absence as more probable, or he must show that all reasonable care in and about the management of the vehicle
was taken. The burden, in the first instance, is on the defendant to disprove his liability. 92 Having regard to the
local conditions prevailing in India, when res ipsa loquitur is attracted, it should be given as wide an amplitude and
as long a rope as possible in its application to the case of a motor accident. 93 Such an approach may not now be
justified after introduction of no fault liability provisions in the Motor Vehicles Act 1988 and application of the strict
liability rule in other cases of Motor accidents.94
The principle of res ipsa loquitur only shifts the onus of proof, in that a prima faice case is assumed to be made out,
throwing on the defendant the task of proving that he was not negligent; this does not mean that he must prove how
and why the accident happened; it is sufficient if he satisfies the Court that he personally was not negligent. 1 Even
if the defendant gives no rebutting evidence but a reasonable explanation equally consistent with the presence as
well as with the absence of negligence the presumptions or inferences based on res ipsa loquitur cannot further be
sustained. 2
The maxim has been applied in cases of disciplinary action taken against workmen based on negligence as
misconduct. 3
The maxim does not apply when the facts are sufficiently known. But this does not necessarily mean that
negligence is not proved for the facts found may by themselves give rise to an inference of negligence. 4
In cases where the injury is caused by the use of tackle or machinery for which the defendant is responsible, there
is no immediate inference that the defendant is at fault. The plaintiff must prove negligence on the part of the
defendant. 5 But if the injury is traced directly to some defect in the tackle or machinery then the defendant must
show that the defect was one for which he is not to blame. 6 The burden on the defendant to rebut the inference of
negligence raised by the maxim res ipsa loquitur cannot be discharged merely by showing that there was a latent
defect in a machine not discoverable by the exercise of reasonable care in inspection and maintenance; there is a
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further duty on him to exercise reasonable care when he first acquired the machine of which he must produce
evidence. 7 Proof of proper maintenance of the machine e.g. a lorry must be given before a latent defect arising
subsequent to its acquisition can be put forward as a defence. 8
The applicability of the doctrine of res ipsa loquitur in air accidents depends on the facts and circumstances in the
particular air accident under consideration by the Court. If the accident is such that it speaks for itself then in that
case it applies to air accident just as much as it does in other cases. On the other hand, if the accident is such that
the thing does not speak for itself, then it does not apply in the case of that particular air accident just as much as it
would not apply in other case. 9
Negligence should have connection with accident. —The mere fact of a man driving on the wrong side of a road is
no evidence of negligence, in an action brought against him for running over a person who was crossing the road
on foot. 10 The plaintiff's wife, having safely crossed in front of an omnibus, was startled by some other carriage,
and ran back; the driver had seen her pass, and then turned round to speak to the conductor, so that he did not see
her return in time to pull up and avoid mischief. The omnibus was on its right side and going at a moderate pace.
Here there was no evidence of negligence on the part of the defendant, the owner of the omnibus. It was held that
owner of the omnibus was not negligent. 11
Falling of blackboard. —The plaintiff, being a scholar at a school, was injured by the fall of a blackboard that was
being used by a teacher in charge of the defendant's class. It was held that the mere fall of the blackboard was not
evidence of negligence on the part of the teacher. 12
Falling of ceiling fan.— The plaintiff, who was a midwife, went to the restaurant of the defendants to take lunch and
sat at a table over which an electric fan was suspended with a rod attached to the ceiling. As the fan was switched
off by a waiter under her instructions it fell on her left hand causing injuries to her hand and fingers. The plaintiff
brought an action for negligence against the defendants to recover Rs. 15,000 as damages alleging that she was
incapacitated from following her profession and was seriously handicapped by being deprived of the use of her left
hand and had suffered severe physical and mental pain. It was held that the defendants were not liable as the
falling of the fan was not due to any negligence on their part but was due to an accident owing to a latent defect in
the metal of the suspension rod, and that the accident could not have been averted by the exercise of ordinary care,
skill and caution on the part of the defendants. 13
Railways cases. —Where the dead body of man was found on the defendants’ line of railway near a level crossing
at night, the man having been killed by a train which carried the usual headlights, but did not whistle, or otherwise
gave warning of its approach, it was held, in an action by his widow, that even assuming that there was evidence of
negligence on the part of the company, yet there was no evidence to connect such negligence with the accident. In
the course of the judgment it was observed: “One may surmise, and it is but surmise and not evidence, that the
unfortunate man was knocked down by a passing train while on the level-crossing; but assuming in the plaintiff's
favour that fact to be established, is there anything to shew that the train ran over the man rather than that the man
ran against the train?” 14 Though it was the duty of the railway company to inspect the carriage-doors and see that
they were properly fastened before the train left a station, the doors were not continuously under their sole control in
the sense necessary for the doctrine of res ipsa loquitur to apply, and the mere fact that a door came open and an
infant passing through the corridor of the train fell down on the railway line was not in itself prima facie evidence of
negligence against the railway company and the company was not liable. 15 The maxim has been applied to the
case of a derailment for derailment is not a normal feature and it is more consistent with its being caused by
negligence of the Railway or its employees. 16
Storage of cotton without precaution. —Where the defendants stored a large quantity of cotton bales in a room in
the plaintiff's house unwatched for months and cotton ignited with the result that the plaintiff's house was destroyed
it was held that the defendants were liable. 17
Collision by cycle.— A minor girl whilst she was passing by a road on left side along with her mother collided with
the defendant who was coming on a cycle from the opposite direction and sustained severe injuries. It was alleged
that the collision took place because the defendant suddenly turned his cycle on the wrong side of the road and the
defendant was carrying a person on the rod of the cycle which was not permissible under the traffic rules. In a suit
Page 86 of 159
for damages for injury caused to the girl, it was held that none of the aforesaid elements taken individually may
prove negligence as contemplated in law. But the position may differ when each of them is weighed along with
other circumstances on the record which go to show that all reasonable care on the part of the defendant which
should have avoided the collision was not taken by him. 18
Breach in canal.— Where a canal was in the management of the defendant, the State of Punjab, and as a result of
proper care not having been taken of it by the defendant, a breach occurred in the canal and loss was suffered by
the plaintiffcultivator by flooding of his lands, it was held by the Supreme Court that the rule of res ipsa loquitur
applied and the breach itself was prima facie proof of negligence. 19
Collapse of crane. —The appellant labourer was employed by the respondent as one of a crew engaged in pile-
driving operations for which process a crane was used. The appellant was asked to climb up the lead of the crane
in order to get a pile into position and as the pile was being hoisted, the crane toppled over and threw the appellant
on the ground causing him serious injury. It was found that the crane toppled over because the ground had
suddenly given way under one of the wheels supporting the crane. In an action for damages the appellant claimed
that his injury resulted from negligence of the respondents in failing to provide a safe system of work. It was held
that the mere fact that the crane fell did not inevitably entitle the appellant to succeed, for the respondents were
liable only if they were negligent and as cranes did not ordinarily collapse, the principle of res ipsa loquitur applied,
with the consequence that the burden was on the respondent to prove that they had not been negligent. 20
Fire-explosive injuring spectator in crowd.— Where a person fires an explosive which normally flies perpendicularly
into the sky before it explodes, but it flew at a tangent and fell and burst in the midst of a crowd in a maidan causing
injury to a spectator, it was held that negligence on the part of the person firing the explosive substance must be
presumed. Even if the negligence is not established, the principle res ipsa loquitur would apply. 21
11. CONTRACTING OUT OF LIABILITY FOR NEGLIGENCE
By the Unfair Contract Terms Act, 1977 (U.K.) it is not open to a person by contract or notice to exclude or restrict
his liability for death or personal injury resulting from negligence. In the case of other loss or damage, the Act
permits exclusion or restriction of liability for negligence by a term in a contract or notice in so far as the term of
notice satisfies the requirement of reasonableness. 22 The Act defines negligence as the breach (a) of any
obligation arising from express or implied terms of a contract to take reasonable care or exercise reasonable skill in
the performance of a contract; (b) of any common law duty to take reasonable care or exercise reasonable skill.
Thus the Act covers both contractual and tortious negligence. It may not be open to apply the principles of the Act in
India in so far as a contractual negligence is concerned for the law of contract in India is codified. But as regards
tortious negligence the Act can be applied as embodying principles of equity, justice and good conscience. 23
12. NEGLIGENT MISSTATEMENT
Negligent misstatement is a form of negligence but it is more conveniently discussed in Chapter XXI in company
with Fraud and Malicious Falsehood.
1
Blyth v. Birmingham Waterworks Co ., (1856) 11 Ex 781, 784; Bridges v. Directors, etc., of N. L. Ry .,

(1873-74) LR 7 HL 213, 232; Bengal Nagpur Railway Company Limited v. Tara Prasad Maity, (1926) 48
CLJ 45 ; Governor-General in Council v. Mt. Saliman , (1948) ILR 27 Pat 207.
Page 87 of 159
Heaven v. Pender, (1883) 11 QBD 503; Swan v. North British Australasian Co ., (1862) 7 H & N 603;
Swami Nayudu v. Subramania , (1864) 2 MHC 158; Nazir Abbas v. Raja Ajam Shah , ILR 1947 Nag 955; D
& F Estates Ltd. v. Church Commissioners , (1988) 2 All ER 992 (HL) approving the dissenting opinion of
LORD BRANDON in Junior Books Ltd. v. Veitchi Co. Ltd ., (1982) 3 All ER 201 (HL), pp. 216 to 218 :
(1983) AC 520.
3
WINFIELD AND JOLOWICZ Tort, 12th edition, p. 69 referred to in the Madhya Pradesh State Road
Transport Corporation v. Basantibai, 1971 ACJ 328 (p. 330) : 1971 MPLJ 706. See further Jay Laxmi Salt
Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 : JT 1994 (3) SC 492, p. 502 : 1994 ACJ 902; Sidhraj
Dhadda v. State of Rajasthan , AIR 1994 Raj 68, pp. 73, 74 (Damage is a necessary element); Poonam
Sharma v. Union of India , AIR 2003 Del 50 [LNIND 2002 DEL 1551], p. 58.
4
Poonam Verma v. Ashwin Patel , AIR 1996 SC 2111, p. 2116 : (1996) 4 SCC 332 [LNIND 1996 SC 2832].
5
Cartlege v. E. Jopling & Sons Ltd., (1963) 1 All ER 341 : (1963) 2 WLR 210 : 1963 AC 758 (HL); Byrne v.
Hall Pain & Foster (a firm ), (1999) 2 All ER 400 (CA), p. 408. Kishorilal v. Chairman Employees State
Insurance Corpn., (2007) 4 SCC 579 [LNIND 2007 SC 606] para 26 : AIR 2007 SC 1819 (This book is
referred).
6
Ibid.
7
Jocob Mathew v. State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] (paras 10 & 48(1)), pp. 12, 32 :
AIR 2005 SC 3180. Post Graduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7
SCC 330 [LNIND 2009 SC 1365] para 15 : (2009) 7 JT 527 (This book is referred).
8
Law Society v. Sephton & Co., (2006) 3 All ER 401 (H.L.).

9
Haward v. Fawcetts (a firm), (2006) 3 All ER 497 (H.L.).

10
(2007) 4 All ER 1047 (H.L.) paras 2, 65, 66, 67. For comments see Gemma Turton, ‘Defining damage by
the House of Lords’ (2008) 7 Modern Law Reviews 1009.
11
PER LORD MACMILLAN in Donoghue v. Stevenson, (1932) AC 562, 618-19 : 48 TLR 494. Post Graduate
Institute of Medical Education and Research v. Jaspal Singh, (Supra) {para 14}.
12
PER LORD WRIGHT in Lochgelly Iron and Coal Co. v. M. Mullan, (1934) AC 1, p. 25 : 149 LT 526 : 49 TLR
566; Poonam Sharma v. Union of India, supra .
13
Page 88 of 159
(2005) 6 SCC 1 [LNIND 2005 SC 587].

14
Ibid , p. 33 (para 48.5). Martin F.D'souza v. Mohd. Ishaq, (2009) 3 SCC 1 [LNIND 2009 SC 375] paras 43,
44 : AIR 2009 SC 2049.
15
Jeet Kumari Poddar v. Chittagang Engineering and Electrical Supply Co. Ltd ., (1946) ILR 2 Cal 433;
Madhya Pradesh Road Transport Corporation v. Basanti Bai, 1971 ACJ 328 : 1971 MPLJ 706.
16
Madhya Pradesh Road Transport Corporation v. Basanti Bai, supra; Donoghue v. Stevenson, (1932) AC
562 : 147 LT 281 (HL); Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd ., (1964) AC 465 : (1963) 3 WLR
101; Home Office v. Dorset Yacht Co. Ltd ., (1970) 2 All ER 294 (HL); Anns v. London Borough of Merton ,
(1977) 2 All ER 492 (HL); Junior Books Ltd. v. Veitchi Co. Ltd ., (1982) 3 All ER 201 : 1983 AC 520 (HL).
17
Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat , (1994) 3 JT 492, p. 502 : (1994) 1 SCC 1 [LNIND 1993
SC 901] : 1994 ACJ 902.
18
1932 AC 562 : 147 LT 281 : 48 TLR 494 (HL).

19
Ibid. , (p. 580).

20
Davis v. Radcliffe , (1990) 2 All ER 536 (PC), p. 540.

21
1932 AC 562 : 147 LT 281 : 48 TLR 494 (HL).

22
Ibid. , p. 619.
23
Ibid.
24
(1964) AC 465 : (1963) 3 WLR 101 : (1963) 2 All ER 575 (HL).

25
Ibid. , (p. 536). Hedley Byrne's case was explained and applied in Smith v. Eric S. Bush (a firm) , (1989) 2
All ER 514 : (1990) 1 AC 831 (HL). For these cases see Chapter XXI, title 3.
26
(1970) 2 All ER 294 : (1970) 2 WLR 1140 : (1970) AC 1004 (HL).

27
Ibid.
Page 89 of 159
28
(1977) 2 All ER 492 : (1978) AC 728 : (1977) 2 WLR 1024 (HL). Anns case was over-ruled by the House of
Lords in Murphy v. Brentwood District Council , (1990) 2 All ER 908 : (1991) 1 AC 398 (HL).
29
(1977) 2 All ER 492 (HL), p. 498.
30
(1984) 3 All ER 529 : (1985) A 210 : (1984) 3 WLR 953 (HL).

31
Ibid. , p. 534.
32
Ibid.
33
See further; Investors in Industry Commercial Properties Ltd. v. South Bedforshire DC, (1986) 1 All ER 787
: (1986) QB 1034 : (1986) 2 WLR 937 (CA). (A local authority owes no duty of care to an original building
owner who though not personally careless acts in breach of the building regulations in reliance on
professional advice of architects, engineers or contractors.)
34
(1987) 2 All ER 13 : (1987) AC 718 (HL).

35
See text and note 29, p. 478, supra .

36
(1987) 2 All ER 705 : (1988) AC 175 (PC).

37
Ibid.
38
Ibid . See further Minorities Finance Ltd. v. Arthur Young , (1989) 2 All ER 105 (The Bank of England was
not under a legal obligation to an individual commercial bank to exercise reasonable care and skill in
carrying out its function of supervising the operation of commercial banks.)
39
(1990) 2 All ER 536 : (1990) 1 WLR 821 : 1990 BCC 472 (PC).
40
Ibid. , p. 540.
41
See note 36.

42
See note 39.

Page 90 of 159
43
Pramod Malhotra v. Union of India, (2004) 3 SCC 415 [LNIND 2004 SC 1543] : AIR 2004 SC 3338.
44
Ibid , p. 428 (para 25).

45
Text and Note 52, p. 482.
46
Text and Note 56, p. 482.
47
(1988) 2 All ER 238 : (1989) 2 WLR 1049 : (1989) AC 53 (HL).

48
Ibid. , p. 241.
49
(1989) 1 All ER 1025 (HL). On the ground of public policy, Police have not been held liable in negligence
while investigating a crime: Alexandrou v. Oxford , (1993) 4 All ER 328 : (1991) 3 Admin LR 675 (CA);
Osman v. Ferguson , (1993) 4 All ER 344 (CA). Police are also under no duty of care to protect road users
or to warn them of hazards discovered by the Police while going about their duties: Ancell v. Mcdermott ,
(1993) 4 All ER 355 : (1993) RTR 235 (CA). A serviceman owed no duty of care to his fellow serviceman in
battle condition: Mulcahy v. Ministry of Defence , (1996) 2 All ER 758 (CA) pp. 771, 772. A police inspector
who failed to help a woman police constable, while standing nearby, when she was attacked by a woman
prisoner was held to be in breach of police duty and the Chief Constable was vicariously held liable in
negligence: Costello v. The Chief Constable of Northumbria Police , (1999) 1 All ER 550 : (2001) 1 WLR
1437 (CA). Polic required to interview a murder suspect considered to be mentally disordered in presence
of ‘an appropriate adult’ was held to owe no legal duty to be protective of the appropriate adult's
psychological well-being but was held to be under a duty to provide counselling within a short time after
exposure to the trauma undergone as a result of what the appropriate adult heard and witnessed during
investigation and interview: Leach v. Chief Constable of Gloucestershire Constabulary , (1999) 1 All ER 215
(CA). The crown prosecution service constituted by the prosecution of offences Act, 1985 an independent
autonomous agency to review police decision to prosecute and to conduct prosecution on behalf of crown
owes no duty of care to those it prosecutes : Elguzouli-Daf v. Commr. of Police , (1995) 1 All ER 833 :
(1995) QB 335 : (1995) 2 WLR 173 (CA). The Chief Constable has a wide discretion in deploying police
force for policing duties having regard to the number of men available to him, his financial resources, the
rights of persons in the area and the necessity of balancing the conflicting rights e.g. the right to trade and
the right to protest peacefully: R. v. Chief Constable of Sussex. , (1999) 1 All ER 129 : (1999) 2 AC 418 :
(1998) 3 WLR 1260 (HL). Police Commr. may be held liable for not protecting a police officer from
harassment by other police officers : see p. 561. Police owes no duty of care to prevent a person suffering
injury in foreseeable attempt to escape from polic custody: Vellino v. Chief Constable of Greater
Manchester , (2002) 3 All ER 78 (CA). When entrusting a police officer with a gun, the police authorities
owe to the public at large a duty to take reasonable care to see that this officer is a suitable person to be
authorised with a dangerous weapon less by any misuse he inflicts personal injury, whether accidentally or
intentionally on others : The Attorney General v. Craig Hartwell , (2004) U.K. PC 12. Police do not owe any
duty of care to victim of crime: Brooks v. Metropolitan Police Commissioner , (2005) 2 All ER 489 (HL). In
this case Lord Roger at p. 575 (para 38) said that prosecutors and police officers are under an ethical and
professional duty, nevertheless it does not translate into a legal duty and Lord Nicholas said such a duty
would cut across the freedom of action the police ought to have when investigating a crime. The principle
Page 91 of 159
laid down in Hills case and affirmed in Brooks case was reaffirmed in Smith v. Chief Constable of Sussex
Police, (2008) 3 All ER 277 (H.L.).
50
(1986) 2 All ER 145 : (1980) AC 785 : (1980) 2 WLR 902 (HL).

51
Ibid., pp. 153, 154. (See further for this case text and note 8, p. 489, infra .)
52
(1990) 1 All ER 568 : (1990) 2 AC 605 : (1990) 2 WLR 358 (HL). (For this case see Chapter XXI, title 4, p.
660).
53
Ibid. , p. 574.
54
(1985) 60 ALR 1 at 43-44.
55
Ibid .
56
(1990) 2 All ER 908 : (1991) 1 AC 398 : (1990) 3 WLR 414 (HL).

57
See text and notes 84 to 99 and 1 to 3, pp. 486 to 488.

58
Supra note 54 and 55.

59
(1988) 2 All ER 484 (HL).
60
P. 487 (The cases mentioned in this passage are all discussed above in this chapter, pp. 476 to 481.
61
See note 52, supra .

62
See Note 56.

63
P. 477, supra .
64
P. 477, supra .
65
(1982) 3 All ER 201 : (1983) AC 520 : (1982) 3 WLR 477 (HL).

66
Page 92 of 159
1971 ACJ 328 : 1971 MPLJ 706.

67
P. 476, supra .
68
P. 476, supra .
69
P. 477, supra .
70
1971 ACJ 328, (332) : 1971 MPLJ 706.

71
1971 ACJ 328, (332, 333) : 1971 MPLJ 706 (G.P. SINGH, J.).
72
1932 AC 562 (HL) p. 580 : 147 LT 281 : 48 TLR 494.

73
Ibid .
74
Davis v. Radcliffe , (1990) 2 All ER 536 (PC), p. 540, See p. 480, supra .
75
1932 AC 562 : 147 LT 281 : 48 TLR 494 (HL).

76
Southern Portland Cement Ltd. v. Cooper , (1974) 1 ALL ER 87 (PC) p. 98 (e) : (1974) 2 WLR 152 : 118 SJ
99.
77
(1943) AC 92 : (1942) 2 All ER 396 (HL).

78
(1965) AC 778 (HL).

79
(1955) AC 549 : (1955) 2 WLR 517 (HL).

80
Ibid . p. 564.
81
(1969) 3 All ER 746 (HL).
82
(1982) 2 All ER 298 : (1982) 2 WLR 982 : (1983) AC 410 (HL), See p. 208, supra .
Page 93 of 159
83
(1999) 1 All ER 1 (HL). See p. 215 supra.

84
See text and notes 43 to 54, pp. 8 and 9 supra .

85
(1982) 3 All ER 201 : (1982) 3 WLR 477 : (1983) AC 520 (HL). See text note 65, p. 483, supra .
86
(1964) AC 465 (PC). See text and note 24, p. 476, supra ; text and notes 88 to 90, pp. 657, 658 (Chapter
XXI title 4) See further other cases following Hedley Byrne in Chapter XXI title 4. post .
87
D & F Estates Ltd. v. Church Commissioners , (1988) 2 All ER 992 : (1987) 7 Com LR 40 (HL); Murphy v.
Brentwood District Council , (1990) 2 All ER 908 (HL).
88
Ibid.
89
Ibid.
90
(1932) AC 562 : 48 TLR 494.

91
Ibid . See text and note 18, p. 476, supra .

92
(1982) 3 All ER 201 : (1982) 3 WLR 477 : (1983) AC 520 (HL), pp. 216 to 218.
93
(1988) 2 All ER 992 (HL). For criticism, see Peter Cane, ‘Economic Loss in Tort : Is the Pendulum out of
Control’, (1989) Modern Law Review 201.
94

95

96
(1990) 2 All ER 908 (HL).
N.B.— See Invercargill City Council v. Hamlin , (1996) 1 All ER 756 (PC), which shows that many
commonwealth countries such as Canada, Australia and New Zealand have developed their common law
different from the view taken in Murphy's case. In Canada it is well established that a municipality may be
liable for economic loss caused by the negligence of a building inspector (p. 765). In Australia it has been
held that a negligent builder may be liable for economic loss suffered by a subsequent purchaser; (p. 766).
In New Zealand it has been decided that community standards and expectations demand the imposition of
a duty of care on local authorities and builders to ensure compliance with building bye laws and to make
Page 94 of 159
them liable for economic loss (pp. 766, 767). Hamlin's case was an appeal from New Zealand and the Privy
Council endorsed the view prevalent in New Zealand not on the ground that Murphy was wrongly decided
but on the view that courts in New Zealand were entitled to develop the common law departing from English
case law on the ground that the conditions there were different and observed: “The ability of the common
law to adopt itself to the differing circumstances of the countries in which it has taken root, is not a
weakness but one of its great strengths”. (p. 764). See further Perre v. Apandey Pty. Ltd. , (1999) 73 ALJR
1190 (supplier of bad seed held liable for pure economic loss to potato growers); Jane Swanton and
Barbara Mcdonald, ‘Liability in negligence for pure economic loss’, (2000) 74 ALJ 17, pp. 21, 22. In
Australia the trend is changing : see text and note 2, p. 488.
97
(1990) 2 All ER 943 (HL).
98
Cases in notes 93, 96 and 97.
99
(1932) AC 562 : 76 SJ 376 : 147 LT 28 : 48 TLR 494.

1
(1992) 3 All ER 27 : (1992) 2 HLR 164 (CA).
2
(2004) 78 ALJR 628.
3
Ibid., p . 633.
4
(1995) 3 All ER 307 (HL) p. 326.
5
Ibid , p. 332.
6
Candlewood Navigation Corp. Ltd. v. Mitsvi OSK Lines Ltd ., (1985) 2 All ER 935 (PC) pp. 942 : (1986) AC
1 : (1985) 3 WLR 381, 945; Muirhead v. Industrial Tank Specialities Ltd ., (1985) 3 All ER 705 (CA) pp. 714,
715 : (1986) QB 507 : (1985) 3 WLR 993.
7
“Earnings” include fees and shares and profits, Phillips v. L.S.W. Ry ., (1879) 5 C.P.D. 280 ; Lee v. Sheard,
(1956) 1 QB 192.
8
Leigh & Sillavan v. Aliakmon Shipping Co ., (1986) 2 All ER 145 : (1986) 2 WLR 902 (HL).
9
(1922) 1 KB 127.
10
Ibid , pp. 139, 140.

11
Page 95 of 159
(1985) 2 All ER 935 (PC) pp. 938, 945 : (1986) AC 1 : (1985) 3 WLR 381. Followed by House of Lords in
Leigh & Silavan v. Aliakmon Shipping Co ., (1986) 2 All ER 145 : (1986) AC 785 : (1986) 2 WLR 902 (HL);
Esso Petroleum Co. Ltd. v. Hall Russel & Co. Ltd ., (1989) 1 All ER 37 (HL), pp. 52, 53.
12
(1972) 2 All ER 492 (HL) pp. 498, 499.
13
See text and notes 47 to 49, pp. 480, 481.

14
X (minors) v. Bedford Shire County Council , (1995) 3 All ER 353 : (1995) 2 AC 633 : (1995) 3 WLR 152
(HL); Barrett v. Enfield London BC , (1997) 3 All ER 171 (CA). But see W v. Essex County Council , (1998)
3 All ER 111 (CA).
15
Clunis v. Camden and Islington Health Authority , (1998) 3 All ER 180 (CA).
16
White v. Chief Constable of the South Yorkshire Police , (1999) 1 All ER 1 (HL), pp. 32, 33. See also title
Nervous Shock, p. 207.
17
D.V.East Berkshire Community NHS Trust , (2005) 2 All ER 443 (HL).

18
Gray v. Thames Trains Ltd., (2009) 4 All ER 81 (H.L.).

19
See , Chapter 2, title 1, Act and Omission, p. 25.

20
SALMOND, Jurisprudence (12th edition), p. 352.
21
Home Office v. Dorset Yacht Co. Ltd ., (1970) AC 1004 : (1970) 2 WLR 1140 (HL).
22
Home Office v. Dorset Yacht Co. Ltd ., (1970) AC 1004 : (1970) 2 WLR 1140 (HL), See p. 444, supra.
23
Holgate v. Lancashire Mental Hospital Board , (1937) 4 All ER 19.

24
Carmarthenshire County Council v. Lewis, (1955) AC 549 : (1955) 2 WLR 517 : 119 JP 230 (HL); Weld-
Blundell v. Stephens, (1920) AC 956 (HL), p. 986 : 36 TLR 640; Smith v. Leurs , (1945) 70 CLR 256, pp.
261, 262. It has also been held that breach of duty of confidentiality by negligence or otherwise may give
rise to a claim for damages: Swinney v. Chief Constable of the Northumbria Police , (1996) 3 All ER 449 :
(1997) AC 464 : (1996) WLR 968 (CA). (In this case information given in confidence to Police about a
violent suspect came to the knowledge of the suspect because of the negligence of the police who
threatened the informer and his family with violence and arson as a result of which the informer suffered
psychiatric illness and claimed damages against the Police. The claim was held to be maintainable).
Page 96 of 159
25
Reeves v. Commissioner of Police of the Metropolis, (1999) 3 All ER 897 (HL).

26
Ibid.
28
Ibid.
29
Ibid , pp. 902, 903.

30
See p. 50, ante.

31
East Suffolk Catchment Board v. Kent, (1940) 4 All ER 527 : (1941) AC 74 : 57 TLR 199(HL). See further
pp. 599-600, post.
32
(1996) 3 All ER 801 (HL).
33
Ibid.
34
Ibid. Stovin v. Wise is distinguished in cases where duty is assumed but is negligently performed : Gorringe
v. Calderdale Metropoliton Council , (2004) 2 All ER 326, pp. 330-332 (LORD STEYN) (HL).
35
36
Ibid , p. 649. [This case was distinguished and not applied in Pramod Malhotra v. Union of India, (2004) 3
SCC 415 [LNIND 2004 SC 1543], pp. 422 to 425 which was a case of pure economic loss. It was observed
in this case, p. 428 that “compensation for violation of a statutory duty to enable individuals to recoup
financial loss has never been recognised in India”.]
37
Capital and Counties plc. v. Hampshire County Council , (1997) 2 All ER 865, pp. 876, 877 : (1997) QB
1004 : (1997) 3 WLR 331 (CA). This case also shows that the doctrine though referred was not accepted in
Stovin v. Wise , supra.
38
Pyrenees Shire Council v. Day , (1998) 72 ALJR 152 (Aust), (BRENNAN CJ, GUMMOW and KIRBY JJ). As
observed by Brennan CJ: “If community expectation that a statutory power will be exercised were to be
adopted as a criterion of a duty to exercise the power it would displace the criterion of legislative intention—
the appropriate criterion is legislative intention,” (p. 158).
39
Page 97 of 159
(1997) 1 Scale 370 [LNIND 1997 SC 1719], p. 405 : (1997) 9 SCC 552 [LNIND 1997 SC 1719]. But see
Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929 : (1994) 4 SCC 317 : 1999 ACJ 801
discussed at p. 534 text and notes 7 and 8.
40
Capital and Counties plc v. Hampshire County Council , (1997) 2 All ER 865 : (1997) QB 1004 : (1997) 3
WLR 331 (CA).
41
OLL Ltd. v. Secretary of State for Transport , (1997) 3 All ER 897 : (1997) 147 NLJ 1099 (QBD).
42
(2000) 2 All ER 474 (CA).
43
Ibid , p. 487.
44
74 ALJR 1 (Jan. issue of 2000).
45
Ibid , p. 19. In AGAR v. HYDE , (2000) 74 ALJR 1219, p. 1232 it was held that the Rugby Football Board
owed no duty to players for altering the rules of the game and the Board and its members were not liable
for failing to alter or amend the rules to avoid or minimise the risk of injury to players.
46
Home Office v. Dorset Yacht Co. Ltd ., (1970) All ER 294 (HL) pp. 321, 322 : (1970) 2 WLR 1140 : (1970)
AC 1004.
47
(1983) 3 All ER 161 : (1984) QB 342 : (1983) 3 WLR 769 (CA).

48
(1986) 3 All ER 544 : (1986) 1 WLR 890 (CA).

49
(1987) 1 All ER 710 : (1987) AC 241 : (1987) 2 WLR 480 (HL).

50
Ibid , p. 721.
51
Ibid , pp. 729 to 732. For cases where it has been held that the act of third parties breaks the chain of
causation See Chapter IX, title 1(c)(IV), pp. 198, 199.
52
Modbury Triangle Shepping Centre Pty. Ltd. v. Anzil, (2000) 75 ALJR 164,
53
Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd ., (1984) 3 All ER 529 (HL), p.
534 : (1985) AC 210 : (1984) 3 WLR 953 (see also text and notes 30 to 32, p. 478, supra ); Davis v.
Radcliffe , (1990) 2 All ER 536 (PC), p. 540 (see also text and notes 39, 40, p. 480 supra ); Caparo
Page 98 of 159
Industries plc v. Dickman , (1990) 1 All ER 568 (HL), pp. 573, 574 : (1990) 2 AC 605; Marc Rich & Co. AG
v. Bishop Rock Marine Co. Ltd ., (1995) 3 All ER 307 (HL) p. 326. British Telecommunications plc. v. James
Thomson & sons Engineers Ltd ., (1999) 2 All ER 241 (HL) p. 244.
54
Yuen Kun-Yeu v. A.G. of Hongkong , (1987) 2 All ER 705 (PC), p. 712 : (1988) AC 175 (see also text and
notes 36 to 38, p. 479 and 4 to 17, pp. 488-490).
55
Mcloughlin v. O'Brian , (1982) 2 All ER 298 (HL), p. 319 : (1983) AC 410 : (1982) 2 WLR 982.
56
Smith v. Littlewoods Organisation , (1987) 1 All ER 710 : (1987) AC 241 (HL), pp. 729-732 (see further text
and notes 49 to 51, p. 495, supra ).
57
See pp. 494, 495, supra .

58
D & F Estates Ltd. v. Church Commissioners , (1988) 2 All ER 992 (HL) (see further pp. 469 to 471, supra
); Davis v. Radcliffe , (1990) 2 All ER 536 (PC), p. 541 : (1990) 1 WLR 821; Murphy v. Brentwood District
Council , (1990) 2 All ER 908 (HL) p. 915 : (1990) 3 WLR 414.
59
Leigh & Sillavan v. Aliakman Shipping Co ., (1986) 2 All ER 145 (HL) (See further text and notes 50, 51, p.
481, supra ).
60

61
Davis v. Radcliffe , (1990) 2 All ER 536 (PC), p. 540 : (1990) 1 WLR 821; Caparo Industries v. Dickman ,
(1990) 1 All ER 568 (HL), p. 574; Murphy v. Brentwood District Council supra ; White v. Jones , (1995) 1 All
ER 691 (HL) p. 717; M (a Minor) v. Newham London Borough Council , (1994) 4 All ER 602 (CA) p. 630. As
an example of incremental approach see Punjab National Bank v. de Boinville , (1992) 3 All ER 104 (CA) p.
117 : (1992) All ER 1138.
62
Stovin v. Wise , (1996) 3 All ER 801 (HL), p. 824 : (1996) AC 923 : (1996) 3 WLR 388.
63
Fleming, the Law of Torts (9th ed. 1998) p. 151.
64
Sullivan v. Moody, (2001) 75 ALJR 1570 p. 1578.

65
Bryan v. Moloney , (1995) 182 CLR 609, p. 618 (MASON CJ, DEAN AND GAUDRAN JJ).
66
See pp. 474-475, ante.

Page 99 of 159
67
For damage and damages see Chapter IX.

68
See the definition of negligence formulated by ALDERSON B., in Blyth v. Waterworks Co ., (1856) 11 Ex
781, p. 442, ante .
69
PER TINDAL, C.J. in Vaughan v. Menlove , (1837) 3 Bing NC 468, 475.

70
PER LORD MACMILLAN in Glasgow Corportion v. Muir, (1943) AC 447, 448 : 169 LT 53 : 59 TLR 266 :
(1943) 2 All ER 44.
71
PER LORD REID in Billings & Sons v. Riden, (1958) AC 240, 255 : (1957) 3 WLR 496.
72
Glasgow Corporation v. Muir, (Supra).

73
Veeran v. Krishnamorthy , AIR 1966 Ker 172 [LNIND 1965 KER 273].
74
London Passenger Transport Board v. Upson, (1949) AC 155 (HL) pp. 173, 176 : (1949) 1 All ER 60;
Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (90) (MP); Union of India v. United
India Insurance Co. Ltd., JT 1997 (8) SC 653 [LNIND 1997 SC 1348] p. 655 : (1997) 8 SCC 683 [LNIND
1997 SC 1348] : AIR 1998 SC 640.
75
Indian Airlines v. Madhuri Chowdhuri , AIR 1965 Cal 252 [LNIND 1964 CAL 98].
76
Nazir Abbas v. Raja Ajamshah , ILR 1947 Nag 955.

77
In blackout conditions, a new duty is imposed on a person walking on the road, by reason of the difficulty
which the driver of a vehicle has of seeing a person or thing not illuminated by a light, and in those
circumstances, it is the duty of such a person to take all reasonable steps to minimize the difficulty of the
drivers of the oncoming vehicles; Franklin v. Bristol Tramways Co ., (1941) 1 All ER 188 : (1941) 1 KB 255.
78
Bolton v. Stone, (1951) AC 850 (HL) p. 865 : (1951) 1 All ER 1078.

79
Daborn v. Bath Tramways , (1946) 2 All ER 333.

80
M.C. Mehta v. Union of India, (1986) 2 SCC 176 [LNIND 1986 SC 40] (201) : AIR 1987 SC 965. But by an
order passed on 20th Dec. 1986 in the same case, the Supreme Court held that the liability of an enterprise
Page 100 of 159
engaged in a hazardous industry is absolute; See title 2(C) post and (1987) 1 SCC 395 [LNIND 1986 SC
539] : AIR 1987 SC 965 : (1986) 2 SCC 176 [LNIND 1986 SC 40].
81
Roe v. Minister of Health, (1954) 2 QB 66 : (1954) 2 WLR 915 : (1954) 2 All ER 131.
82
Clark v. Maclennan , (1983) 1 All ER 416 : (QBD).

83
Klans Mittelbachert v. The East India Hotels Ltd., AIR 1997 Del 201 [LNIND 1997 DEL 27] pp. 209, 214.
See further p. 550, infra.
84
Dwarkanath v. Rivers Steam Co ., (1917) 20 Bom LR 735, (PC).

85
Jones v. Staveley, Iron & Chemical Co. Ltd. , (1955) 1 All ER 6 : (1956) 1 Lloyd's 403.
86
See title 1(A) Meaning of negligence, p. 474.

87
Nazir Abbas v. Raja Ajamshah , ILR 1947 Nag 955. The plaintiff must show that the duty which the
defendant had failed to comply was owed to him and was “in respect of the kind of loss which he has
suffered”: South Australia Asset Management Corpn. v. York Montague Ltd ., (1996) 3 All ER 365 (HL), p.
370
88
Manchester Corporation v. Markland, (1936) AC 360.

89
Sorabji H. Batlivala v. Jamshedji M. Wadia , (1913) 15 Bom LR 959 [LNIND 1913 BOM 109] : ILR 38 Bom
552; Holloway v. Holland , (1933) 10 OWN 1105.
90
Dann v. Hamilton, (1939) 1 KB 509 : 160 LT 433 : 55 TLR 297 : (1939) 1 All ER 59.
91
Foster v. Gillingham Corporation , (1942) 1 All ER 304.

92
Croston v. Vaughan , (1937) 4 All ER 249.

93
Goynor v. Allen, (1959) 2 All ER 644 : (1959) 2 QB 403 : (1959) 3 WLR 221.
94
Reeves v. Commissioner of Police, (1998) 2 All ER 381 : (1999) QB 169 : (1998) 2 WLR 401 (CA) affd.
(1999) 3 All ER 897 (HL).
Page 101 of 159
95
Grant v. Sun Shipping Co. Ltd ., (1948) AC 549 : (1948) 2 All ER 238.
96
Haley v. London Electricity Board , (1964) 3 All ER 185 : (1965) AC 778 : (1969) 3 WLR 479.
97
Stansbie v. Troman, (1948) 2 KB 48 : 64 TLR 226 : 92 SJ 167.

98
Mankin v. Scala Theadrome Co. Ltd ., (1964) 2 All ER 614.

1
Farrugia v. Great Western Railway , (1947) 2 All ER 565.

2
Davies v. Liverpool Corpn ., (1949) 2 All ER 175.

3
Carmarthenshire County Council v. Lewis, (1955) AC 549 : (1955) 2 WLR 517.

4
Billings & Sons Ltd. v. Riden, (1958) AC 240 : (1957) 3 WLR 496 : (1957) 3 WLR 496 : (1957) 3 All ER 1.
5
Lygo v. Newbold , (1854) 9 Ex. 302.

6
Temulji Jamsetji v. The Bombay Tramway Co. , (1911) 13 Bom LR 345 [LNIND 1911 BOM 30] : ILR 35
Bom 478.
7
Tolhausen v. Davies , (1888) 58 LJ QB (NS) 98.

8
Caminer v. Northern and London Investment Trust Ltd ., (1949) 2 KB 64 : 65 TLR 302 : (1949) 1 All ER
874.
9
Bolton v. Stone, (1951) AC 850 : (1951) 1 TLR 977 : (1951) 1 All ER 1078 : 50 LGR 20.
10
Tinsley v. Dudley, (1951) 2 KB 18.

11
For ‘Fault’ see Chapter 2, title 5.

12
FLEMING, Torts, (6th edition) p. 302. Similar observations were made by Supreme Court in M.C. Mehta v.
Union of India, (1987) 1 SCC 395 [LNIND 1986 SC 539], p. 421.
Page 102 of 159
13
(1868) LR 3 HL 330.
14
Fletcher v. Rylands , (1866) LR 1 Ex 265, 279.

15
PER BLACKBURN, J., in Fletcher v. Rylands , (1866) LR 1 Ex 265, 280 : 4 H & C 263, 271, confirmed in
LR 3 HL 330; Manindra Nath v. Mathradas , (1945) 49 CWN 827 : 80 CLJ 90.
16
(1913) AC 263 : 108 LT 225 : 29 TLR 281 (PC).

17
Rickards v. Lothian, (1913) AC 263, 280 : 108 LT 225 : 29 TLR 281; Eastern and South African Telegraph
Co. v. Cape Town Tram Co., (1902) AC 381, 393 : 57 LTR 1990; Western Engraving Co., v. Film Lab. Ltd .,
(1936) 1 All ER 106; Collingwood v. Home & Colonial Stores , (1936) 1 All ER 74 : 55 LT 550; State of
Punjab v. Modern Cultivators , AIR 1965 SC 17 p. 22.
18
(1947) AC 156 (HL).

19
(1994) 1 All ER (HL) 53.
20
Ibid , p. 72.
21
Ibid , p. 76.
22
Ibid , p. 77.
23
Ibid , p. 79.
24
(2003) 3 WLR 1467 (HL).

25
Burnie Port Authority v. General Jones Pty. Ltd. , (1994) 179 CLR 520. Also see (2004) 78 ALJ 177.
26
See page 506 text and note 18.

27
(2003) 3 WLR 1467, pp. 1473, 1474 (para 9) (LORD BRIGHAM), 1481 (para 35) (LORD HOFFMAN), p.
1486 (para 52) LORD HOBHOUSE.
Page 103 of 159
See further Donal Nolan, ‘ The Distinctiveness of Rylands v. Fletcher , (2005) 121 Law Quarterly Review
421.
28
For statement of the rule see also M.C. Mehta v. Union of India, (1987) 1 SCC 395 [LNIND 1986 SC 539],
p. 419 : AIR 1987 SC 965.
29
(1913) AC 263 : 108 LT 225 : 29 TLR 281 (PC). See text and note 16, p. 505, supra .
30
(1947) AC 156 (HL). See text and note 18, p. 506, supra .
31
American Restatement Article 519 Restatement 2d substituted “abnormally dangerous” for ultrahazardous.
FLEMING, Torts (6th edition) p. 313.
32
(1994) 1 All ER 53 (HL).
33
Ibid pp. 75, 76.

34
See text and note 27, supra.

35
AIR 1965 SC 17.
36
(1994) 4 SCC 1 : JT 1994 (3) SC 492 .
37
AIR 1996 SC 1446 : 1996 (2) Scale 44 [LNIND 1996 SC 353], p. 69.
38
AIR 2001 SC 485 : JT 2001 (1) SC 37 .
39
(1976) 1 SCC 791 [LNIND 1975 SC 517] p. 799.

40
AIR 2004 SC 2107, pp. 2120, 2121.
41
Eastern and Sourth African Telegraph Co. v. Cape Town Tramways Co ., (1902) AC 381; National
Telephone Co. v. Baker, (1893) 2 Ch 186 : 50 WLR 657 : 86 LT 457.
42
M.P. Electricity Board v. Shail Kumari , AIR 2002 SC 551 : AIR 2002 SC 551.
43
Page 104 of 159
Ibid p. 554. The court differed on this point from an earlier decision in W.B. Electricity Boad v. Sachin
Banerjee , AIR 2000 SC 3629 (1) : (1999) 9 SCC 21. Followed in Ramesh Singh Pawar v. Madhya Pradesh
Electricity Board , AIR 2005 MP. 2 [LNIND 2004 MP 114].
44
See text and cases in note 71, p. 586; CLERK AND LINDHELL on Torts, 15th edition para 24.55 p. 1232;
Transco plc v. Stockport, (2003) 3 WLR 1467 (text and note 24, p. 507, supra ).
45
Supra , note 42.

46
Quebe Railway, Light, Heat and Power Company Ltd. v. Vandly , AIR 1920 PC 181, p. 185 to 187.
47
Ibid , p. 187.
48
(2005) 6 SCC 156 [LNIND 2005 SC 565], p. 160 (para 8) : AIR 2005 SC 3971.
49
Ibid , p. 159 (para 6). To the same effect are: Grid Corporation of Orissa Ltd. v. Sukmani Das, AIR 1999 SC
3412 : (1999) 7 SCC 298 [LNIND 1999 SC 810] ; Tamil Nadu Electricity Board v. Sumathi, AIR 2000 SC
1603 : (2000) 4 SCC 543 [LNIND 2000 SC 750].
50
Dhanal Soorma v. Rangoon Indian Tlegraph Association Ltd ., (1935) ILR 13 Ran 369.
51
Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co ., (1921) 2 AC 465 : 126 LT 70.
52
Hoare & Co. v. Mcalpine, (1923) 1 Ch 167 : 128 LT 526 : 39 TLR 97.
53
Belvedere Fish Guano Co. v. Rainham Chemical Works, (1920) 2 KB 487; Hale v. Jennings Brothers ,
(1938) 1 All ER 579 : 82 SJ 193.
54
West v. Bristol Tramways Co ., (1908) 2 KB 14.

55
Charing Cross, West End & Electric Co. v. Londan Hydraulic Power Co ., (1913) 3 KB 442; Rainham
Chemical Works Ltd. v. Belvedere Fish Guano Co ., (1921) 2 AC 465.
56
Musgrove v. Pandelis, (1919) 2 KB 43 : 35 TLR 219 : 120 LT 601.

57
Mason v. Levy Auto Parts , (1967) 2 All ER 62 : (1967) 2 QB 530.

Page 105 of 159
58
Powell v. Fall, (1880) 5 QBD 597 : 43 LT 562.

59
A suit for damages was held to lie against a proprietor who penned back the water of a stream by erecting
a bund upon his land, so as to inundate the land of his neighbour, without his license and consent:
Becharam Chowdhary v. Puhubnath Jha , (1869) 2 Beng LR (Appx.) 53. The defendant closed up the outlet
of a bank upon his own land, whereby the surface drainage water had immemorially flowed from the
plaintiff's land into and over the defendant's land and so escaped. By reason of the closing of those outlets
the water was unable to escape, and the plaintiff's land became flooded and the crops therein damaged. It
was held that the defendant was liable for the damage caused: Mussamut Annundmoyee Dossee v.
Mussamut Hameedoonissa , (1862) Marsh. 85, sub-nom. Must. Hameedoonissa v. Musst. Anundmoyee
Dossee , (1862) 1 Hay 152.
The Bombay High Court has held that before a person can be made liable in damages for injury caused to
his neighbour's land by water either flowing from the former's land to the latter's or percolating from the one
into the other it must be shown that the water was brought or collected on his land by him voluntarily for his
own purposes in a non-natural use of it. Otherwise he is not liable: Moholal v. Bai Jivkore , (1904) 6 Bom
LR 529; ILR 28 Bom 472. This case has been doubted and distinguished in Ramanuja Chariar v.
Krishnaswami Mudali , (1907) ILR 31 Mad 169, which decided that the retention of water by a person on a
portion of his land to prevent its passing on to other portions of his land was not an act done in the natural
and usual course of enjoyment and the person so doing was liable for damage caused thereby.
A suit for damages, based on an allegation that defendant had neglected to drain his garden so as to
prevent water from collecting there and injuring the adjoining property of the plaintiff is not maintainable as
the owner of property is under no legal obligation to incur expenses upon it for the benefit of his neighbours,
where it has not been altered in character by his acts or with his permission in such a way as to expose
them to any injury: Baldeo Das v. Secretary of State , (1883) PR No. 30 of 1883.
Where the defendants with a view to make their land cultivable lowered its level with the consequence that
water in a tank belonging to a third party passed to that land and subsequently overflowed into lands
belonging to the plaintiff, it was held that the plaintiff was not entitled to any cause of action: Kenaram
Akhuli v. Sristidhar Chatterjee , (1912) 16 CWN 875.
Where Government constructs an irrigation canal it undertakes a duty to protect other parties against
damage arising from the water of the canal and if it does not take adequate precautions to deal with the
overflow of water from the canal, for instance, by means of an outlet at the tail end of the canal, it is liable to
compensate those to whom damage may be caused by such overflow: Secretary of State for India in
Council v. Ramtahal Ram, (1925) 6 PLT 708.
The retention of water by a person on a portion of his land to prevent its passing on to the other portions of
his land is not an act done in the natural and usual course of enjoyment and the person so doing is liable
for damage caused thereby: Dhanusao v. Sitabai , ILR 1948 Nag 698.
Where the defendant set fire to his land without taking necessary precaution to prevent the same from
spreading into the lands in the neighbourhood, he was ‘playing with fire’ and to be deemed to have
foreseen the possibility of the fire spreading into the lands adjoining his land and is liable for any damage
caused to them: M. Madappa v. K. Kariappa , AIR 1964 Mys 80 .
Where the defendant installed a big ore melting furnace near the plaintiff's house, he was held liable for
emission of harmful gases with offensive smell and heating causing discomfort : Darshan Ram v. Nazar
Ram , AIR 1989 P&H 253.
60
Page 106 of 159
Dhanusao v. Sitabai , ILR (1948) Nag 698.

61
Weller v. Foot and Mouth Disease etc ., (1965) 3 All ER 560 : (1965) 3 WLR 1082 : (1966) 1 QB 569.
62
Snow v. Whitehead , (1884) 27 Ch D 588, dissenting from Ballard v. Tomlinson , (1884) 26 Ch D 194.
63
Whalley v. Lancashire and Yorkshire Ry. Co ., (1884) 13 QBD 131; Greyvensteyn v. Hattingh, (1911) AC
355; Swamiullah v. Makund Lal , (1921) ILR 43 All 688. Whalley's case has been distinguished by the
former Nagpur High Court in a case in which it has held that it is lawful for a person to erect an
embankment on his land to protect his land from the influx of water from adjoining land, and he is not liable
for damage caused by the water being thrown on the land of another; Shankar v. Laxman , ILR 1938 Nag
289; Ramnath v. Kalanath , ILR 1950 Nag 509.
64
Ramnath v. Kalanath , ILR 1950 Nag 509.

65
Charing Cross Elec. Sup. Co. v. Hydraulic Power Co ., (1914) 3 KB 772 : 83 LJKB 116.
66
Greenock Corporation v. Caledonian Railway, (1917) AC 556 : 117 LT 483 : 33 TLR 531.
67
Guhiram v. Uday Chandra , AIR 1963 Pat 455 .

68
O'Gorman v. O'Gorman, (1903) 2 IR 573.

69
Stearn v. Prentice Brothers, Limited, (1919) 1 KB 394 : 35 TLR 207 : 120 LT 455.
70
Crowhurst v. Amersham Burail Board , (1878) 4 Ex. D 5.

71
Ponting v. Noakes, (1894) 2 QB 281.

72
Firth v. Bowling Iron Co., (1878) 3 CPD 254.

73
Giles v. Walker, (1890) 24 QBD 656 : 62 LT 933.

74
Hale v. Jenning Bros ., (1938) 1 All ER 579 : 82 SJ 193.

75
Weller v. Foot and Mouth Disease etc ., (1965) 3 All ER 560 : (1966) 1 QB 569 : (1965) 3 WLR 1082.
Page 107 of 159
76
Fletcher v. Rylands , (1866) LR 1 Ex. 265; approved in Rylands v. Fletcher , LR 3 HL 330.

77
These exceptions are enumerated in Narayanan Bhattathripad v. Government of Travancore-Cochin , ILR

1956 TC 639 [LNIND 1955 KER 141]. M.C. Mehta v. Union of India, (1987) 1 SCC 395 [LNIND 1986 SC
539], p. 419 : AIR 1987 SC 965.
78
Nugent v. Smith, (1876) CPC 423, 433; Vithaldas v. Municipal Commissioner of Bombay , (1902) 4 Bom LR
914; Hubli Municipality v. Ralli Brothers , (1911) 13 Bom LR 1138 [LNIND 1911 BOM 91] : ILR 35 Bom 492;
Lallu v. Vazl Haq , (1918) 1 UPLR (Oudh) 15.
79
Forward v. Pittard , (1785) 1 TR 27.

80
Nugent v. Smith, Supra

81
Nichols v. Marsland , (1875) LR 10 Ex.255; Ram Lall Singh v. L. Dhary Muthon , (1877) ILR 3 Cal 776.
82
Nitrophosphate & C. Manure Co. v. L. & St. Katherine Docks , (1878) 9 Ch D 503.
83
Blyth v. Birmingham Waterworks Co ., (1856) 11 Ex 781.

84
R. Navigation Co. v. Ram Krishna , AIR 1968 Assam 38 .

85
Nitrophosphate & C. Manure Co. v. London & St. K.D. Co. , (1878) 9 Ch D 503, 515.
86
Apcharaddin Abdul Gani v. Gurudayal Kapali, (1947) 83 CLJ 108.

87
Municipal Corporation of Bombay v. Vasudeo Ramchandra , (1904) 6 Bom LR 899. In this case the
damage caused was due to the insufficiency of precautions taken by the defendant, in constructing bridges
and embankments in a creek for carrying duct line to cope with conditions which might reasonably have
been anticipated, and it was held that the defendant was liable. See Seetharama Swami v. Secretary of
State for India in Council , (1925) MWN 352 : 21 MLW 449.
88
Nichols v. Marsland , (1875) LR 10 Ex 255. See Ram Lall Singh v. Lill Dhary Muhton , (1877) ILR 3 Cal
776; Gooroo Churn v. Ram Dutt , (1865) 2 WR 43.
89
Blyth v. Birmingham Waterworks Co ., (1856) 11 Ex. 781.

Page 108 of 159
90
(1917) AC 556 (HL) : 117 LT 483 : 33 TLR 531.

91
Ibid , p. 579. Extraordinary high wind will be governed by the same considerations. Cushing v. Walker &
Sons (1941) 2 All ER 693, p. 695. So also extraordinary high tide: Greenwood Tileries Ltd. v. Clapson ,
(1937) 1 All ER 765, p. 772.
92
S. Vendantacharya v. Highways Department of South Arcot, (1987) 3 SCC 400.

93
Slater v. Worthington's Cash Stores, (1941) 1 KB 488.

1
State of Mysore v. Ramchandra , (1970) 73 Bom LR 732.

2
Box v. Jubb , (1879) 4 Ex D 76.

3
Rickards v. Lothian, (1913) AC 263 : 108 LT 225 : 29 TLR 281.

4
Northwestern Utilities, Ld. v. London Guarantee and Accident Co ., (1936) AC 108,125.

5
Box v. Jubb , (1879) 4 Ex D 76.

6
Northwestern Utilities Ld. v. London Guarantee and Accident Co ., (1936) AC 108 : 154 LT 89 : 52 TLR 93.
7

8

9
Holgate v. Bleazard, (1917) 1 KB 443.

10
Carstairs v. Taylor , (1871) LR 6 Ex 217; Bomanji v. Mahomedali , (1905) 7 Bom LR 713.

11
See cases in note 14, infra .

12
Kiddle v. City Business Properties Ld ., (1942) 1 KB 269, 274.

13
Page 109 of 159
Carstairs v. Taylor , (1871) LR 6 Ex 217; Bomanji v. Mahomedali , (1905) 7 Bom LR 713.

14
Blake v. Woolf, (1898) 2 QB 426; Anderson v. Oppenheimer, (1880) 5 QBD 602; Ross v. Fedden , (1872)
LR 7 QB 661.
15
Madras Railway Co. v. Zemindar of Carvatenagarum , (1874) 1 IA 364; Ramchandram Nagaram Rice and
Oil Mills Ltd ., Gaya v. The Municipal Commissioner of the Purulia Municipality , ILR (1943) 22 Pat 359 .
16
PER LORD BACKBURN in Geddis v. Proprietors of Bann Reservoir , (1878) 3 App Cas 430, 455.
17
(2003) 3 WLR 1467 (HL). See taxt and note 20, pp. 490, 491.
18
M. C. Mehta v. Union of India, (1987) 1 SCC 395 [LNIND 1986 SC 539] : AIR 1987 SC 965.
19
Ibid , p. 421. Approved (except as to quantum of damages) in Charan Lal Sahu v. Union of India , AIR 1990
SC 1480, pp. 1531, 1549, 1550 : (1990) 1 SCC 613 [LNIND 1989 SC 639].
20
See title 2B(ii), p. 515.

21
See Chapter IX, title 1D(ii) text and notes 65, 66, p. 203.
22
AIR 1990 SC 1480, pp. 1545, 1557 : (1990) 1 SCC 613 [LNIND 1989 SC 639]. See further Chapter IX title
1D(ii), text and note 63, p. 211. But in determining compensation payable to Bhopal gas victims Mehta
principle was applied: Union Carbide Corporation v. Union of India , AIR 1990 SC 273, pp. 280, 281: (1989)
3 SCC 38 [LNIND 1989 SC 922].
23
AIR 1996 SC 1446 : 1996 (2) Scale 44 [LNIND 1996 SC 353] p. 69 : (1996) 3 SCC 212 [LNIND 1996 SC
353].
But “the compensation to be awarded must have some broad correlation not only with the magnitude and
capacity of the enterprise but also with the harm caused by it”: Deepak Nitrite v. State of Gujarat, (2004) 6
SCC 402 [LNIND 2004 SC 614], p. 407 (para 6).
24
Jagdish v. Naresh Soni, (2007) 3 MPHT 234.

25
Union of India v. Prabhakaran Vijay Kumar, (2008) 9 SCC 527 [LNIND 2008 SC 1066] para 47 : (2008) 4
JT 598.
26
Page 110 of 159
See Thomson v. Cremin , (1953) 2 All ER 1185 : (1956) 1 WLR 103 : 100 SJ 73.
27
Indermaur v. Dames , (1866) LR 1 CP 274, p. 288.

28
Slater v. Clay Cross Co. Ltd ., (1956) 2 QB 264, p. 269 : (1956) 3 WLR 232.
29
FLEMMING, Torts (6th Edition), p. 416.
30
Roles v. Nathan, (1963) 1 WLR 1117 : (1963) 2 All ER 908.

31
See Chapter 1, title 1, pp. 2, 3.

32
(1966) 1 All ER 582 : (1966) AC 552 : (1966) 2 WLR 581 (HL).

33
Ibid . (LORD DENNING).

34
Cavalier v. Pope, (1906) AC 428 : 54 WLR 68 : 95 LT 65 : 22 TLR 648 (HL). Referred to in Wheat v. E.
Lacon & Co ., (1966) 1 All ER 582 : (1966) AC 552 : (1966) 2 WLR 581 (HL).
35
Miller v. Hancock, (1893) 2 QB 177, Referred to in Wheat's case, supra .

36
Hargroves, Aronson & Co. v. Hartopp, (1905) 1 KB 472. Referred to in Wheat's case, supra .
37
Sutcliffe v. Clients Investments Co. Ltd ., (1924) 2 KB 746. Referred to in Wheat's case, supra .
38
Hawkins v. Coulsdon and Parley U.D.C ., (1954) 1 QB 319. Referred to in Wheat's case, supra .
39
Greene v. Chelsea Borough Council, (1954) 2 QB 127 : (1954) 3 WLR 12 : (1954) 2 All ER 318. Referred to
in Wheat's case, supra .
40
Harwell's case (1947) KB 901. Referred to in Wheat's case, supra .

41
Wheat's case; (LORD PEARCE), supra .

42
Edwards v. Railway Executive, (1952) AC 737 : (1952) 2 All ER 630.

Page 111 of 159
43
Brunner v. Williams , (1975) Cr LR 250.

44
Robson v. Hallett, (1967) 2 QB 393 : (1967) 2 All ER 407.

45
Edwards v. Railway Executive, Supra .

46
Lowery v. Walker, (1911) AC 10.

47
British Railway Board v. Herrington, (1972) AC 877, p. 933 : (1972) 1 All ER 749 (LORD DIPLOCK).
48
Ibid ; see title 3(D), p. 530, Post .

49
Lewis v. Ronald, (1909) 101 LT 534.

50
Mersey Docks and Harbour Board v. Procuter, (1923) AC 253.

51
Anderson v. Coutts, (1894) 58 JP 369.

52
Hillen v. ICI (Alkali Ltd.), (1936) AC 65 (HL) pp. 69, 70 : 153 LT 403 : 51 TLR 532.
53
Braithwaite v. Durham Steel Co ., (1958) 1 WLR 986 : (1958) 3 All ER 161.

54
M.C. Grown v. Northern Ireland Housing Executive , (1994) 3 All ER 53 (HL).

56
Titchener v. British Railways Board , (1983) 3 All ER 770 (HL) p. 774 : (1983) 1 WLR 1247. A case on
corresponding Act of Scotland viz. Occupiers Liability (Scotland) Act, 1960.
57
Ferguson v. Welsh , (1987) 3 All ER 777 (HL), p. 782 : (1987) 1 WLR 1553.
58
Titchener v. British Railways Board, supra .

59
(2003) 3 All ER 1127 (HL).
60
Page 112 of 159
Hawkins v. Coulsdon & Purley U.D.C ., (1954) 1 QB 319, p. 335 : (1954) 2 WLR 122 : 98 SJ 44 (DENNING
L. J.); Kumari Alka v. Union of India, AIR 1993 Delhi 267 [LNIND 1993 DEL 197] p. 272.
61
(1922) 1 AC 44.
62
Latham v. R. Johnson & Nephew Ltd ., (1913) 1 KB 398, p. 415 : 29 TLR 124 : 77 JP 137.
63
Nitin Walia v. Union of India, AIR 2001 Del 140 [LNIND 2000 DEL 885].
64
Lynch v. Nurdin, (1841) 1 QB 29 : 55 RR 191. See further Kumari Alka v. Union of India , supra (child
straying in a room where a water pump was running as the shutter was not closed).
65
(2000) 3 All ER 409 (HL).
66
Ibid . pp. 415, 146.

67
Phipps v. Rochester Corporation, (1955) 1 QB 450, p. 472 : (1955) 1 All ER 129 (DEVLIN, J.).
68
Ibid .
69
Phipps v. Rochester Corporation, (1955) 1 QB 450, p. 472 (DEVLIN, J.).

70
Titchener v. British Railways Board , (1983) 3 All ER 770 : (1983) 1 WLR 1247 : (1984) 134 New LJ 361
(HL) p.774. A case under the Occupiers Liability (Scotland) Act, 1960.
71
Ibid.
72
Ibid , p. 775. For other cases regarding obligation to fence, see Edwards v. Railway Executive, (1952) AC
737 : (1952) 2 TLR 237 : (1952) 2 All ER 430; Vijay Shankar v. Union of India , AIR 1958 Punj 246 ; British
Railway Board v. Herrington, (1972) AC 877 : (1972) 2 WLR 537 : (1972) 1 All ER 749.
73
(1952) 1 KB 141.
74
Roles v. Nathan , (1963) 2 All ER 908 (CA).

75
(1952) 1 KB 141.
Page 113 of 159
76
(1963) 2 All ER 908 : (1963) 1 WLR 1117.

77
Ibid.
78
Salmon v. Seafarer Restaurants Ltd ., (British Gas Corp. third party ) (1983) 3 All ER 729 : (1983) 1 WLR
1264 : 127 SJ 581.
79
Greene v. Chelsea Borough Council, (1954) 2 QB 172 : (1954) 3 WLR 12 : (1954) 2 All ER 318 referred in
Roles v. Nathan , (1963) 2 All ER 908 : (1963) 1 WLR 1117.
80
Roles v. Nathan, supra .

81
Ferguson v. Welsh , (1987) 3 All ER 777 (HL), p. 783 : (1987) 1 WLR 1553.
82
Ibid.
83
Ibid.
84
Ibid , p. 782.
85
Slater v. Clay Cross Co. Ltd ., (1956) 2 QB 264, p. 269 : (1956) 3 WLR 232 : 100 SJ 450. See text and note
28, title 3 (A) Introduction, p. 523, Ante .
86
Thompson v. Municipality of Bankstown, (1953) 87 CLR 619, p.623; Miller v. South of Scotland Electricity
Board, (1958) SC (HL) 20, pp. 37-38.
87
SALMOND & HEUSTON, Torts, 18th edition, p. 244 holds the view that it has been abolished. WINFIELD &
JOLOWICZ, Tort, 12th edition, pp. 206, 207 holds the opposite view.
88
(1972) AC 877 (HL) pp. 929, 942 : (1972) 1 All ER 749.

89
(1983) 3 All ER 770 (HL) pp.772, 776 : (1983) 1 WLR 1247.

90
(1929) AC 358 (HL).

91
Page 114 of 159
(1964) AC 1054 : (1964) 1 All ER 897 (PC).

92
Bird v. Holbrook , (1820) 4 Bing 628. In Ilott v. Wilkes , (1820) 3 B & Ald. 304 the facts were identical except
that the plaintiff had knowledge of the danger and it was held that this prevented him in having any remedy.
93
Cherubin v. State of Bihar , AIR 1964 SC 205 : (1964) 4 SCR 199 [LNIND 1963 SC 175].
94
Ibid , p. 206.
95
(1972) 1 All ER 749 : (1972) AC 877 : (1972) 2 WLR 537 (HL). Considered in Kumari Alka v. Union of India
, AIR 1993 Del 267 [LNIND 1993 DEL 197], p. 274. See further V. Krishnappa Naidu v. Union of India, AIR
1976 Mad 95 ; Smt. Krishna Devi v. Haryana State Electricity Board, AIR 2002 Del 113 [LNIND 2001 DEL
1350].
96
(1974) 1 All ER 87 : 1974 AC 623 (PC).

97
(1974) 1 All ER 87 (PC) p. 98 : (1974) 2 WLR 152.

98
(2003) 3 All ER 1101 (CA).
99
(1996) 1 All ER 291 : (1996) QB 567 : (1996) 2 WLR 239 (CA).

1
For cases of Child visitor see text and notes 61 to 71, pp. 527, 528, ante ; For cases of Child trespasser
see text and notes 95 to 97, pp. 531, 532, ante .
2
Terry v. Ashton, (1876) 1 QBD 314, 320. This case has been relied on by the Supreme Court in Municipal
Corpn. of Delhi v. Subhagwanti , AIR 1966 SC 1750.
3
PER COCKBURN, C. J. in Kearney v. London Brighton Ry. Co ., (1870) LR 5 QB 411, 415; Laugher v.
Pointer , (1826) 5 B & C 547, 576; D'souza v. Cassamalli Jairajbhoy , (1933) 35 Bom LR 1007; Kuppammal
v. M. & S. M. Ry. Co., Ltd ., (1937) 46 MLW 452 : (1937) MWN 921.
4
Wringe v. Cohen, (1940) 1 KB 229 : 161 LT 366 : 56 TLR 201 : (1939) 4 All ER 241.
5
Municipal Corporation of Delhi v. Subhagwanti , AIR 1966 SC 1750.

6
Page 115 of 159
Ibid , p. 1753. See further Kallulal v. Hemchand , AIR 1958 MP 48 [LNIND 1957 MP 190]; Nagamani v.
Corporation of Madras , AIR 1956 Mad 59 .
7
Municipal Corporation of Delhi v. Sushila Devi (Smt.), AIR 1999 SC 1929, p. 1933.
8
Ibid .
9
Noble v. Harrison, (1926) 2 KB 332, 338 : 30 TLR 602; Noor Bibi v. Municipal Committee , Ambala City,
(1939) 42 PLR 109.
10
Kearney v. London Brighton Ry. Co ., (1870) LR 5 QB 411.

11
Byrne v. Boadle , (1863) 2 H & C 722.

12
Briggs v. Oliver , (1866) 35 LJ Ex 163.

13
Scott v. London Dock Co ., (1865) 3 H & C 596.

14
Wilchick v. Marks and Silverstone, (1934) 2 KB 56 : 50 TLR 281.

15
Silverston v. Marriott, (1888) 55 LT 61.

16
Manindra Nath Mukherjee v. Mathuradas Chattubhuj, (1945) 80 CLJ 90 : 49 CWN 827.

17
Barnes v. Ward, (1850) 9 CB 392; Hurst v. Toylor, (1885) 14 QBL 918. See Coffee v. Mcevoy , (1912) LR
290 (296).
18
Great Central Railway v. Hewlett, (1916) 2 AC 511.

19
Caminer v. Northern and London Investment Trust Ltd ., (1951) AC 88.

20
Noble v. Harrison, (1926) 2 KB 332 : 42 TLR 518.

21
Municipal Corporation Delhi v. Sushila Devi (Smt.) , AIR 1999 SC 1929, p. 193 : (1999) 4 SCC 317 [LNIND
1999 SC 1755] : 1999 ACJ 801. See further text and notes 7 and 8, p. 534.
Page 116 of 159
22
Fenna v. Clare & Co ., (1895) 1 QB 199.

23
Davis v. St. Mary's Demolition & Excavation Co. Ltd ., (1954) 1 All ER 578.
24
Hilder v. Associated Portland Cement Munufactures Ltd ., (1961) 3 All ER 709.

25
Heath's Garage Ltd. v. Hodges, (1916) 2 KB 370.

26
Nicholson v. Southern Ry. Co., etc ., (1935) 1 KB 558 : 152 LT 349 : 51 TLR 216.
27
Directors etc. of North Eastern Ry. Co. v. Wanless , (1874) LR 7 HL 12.

28
Directors, etc., of North Eastern Ry. Co. v. Wanless, ibid. ; Stapley v. L. B. & S.C. Ry ., (1865) LR 1 Ex 21.
See Bengal Provincial Ry. Co. v. Gopi Mohan , (1913) ILR 41 Cal 308; Bengal and North-Western Railway
Company Ltd., v. Matukdhari Singh , (1937) ILR 16 Pat 672.
29
Commissioner for Railways v. Mcdermott , (1966) 2 All ER 162 : (1967) 1 AC 169 (PC).
30
Union of India v. United India Assurance Co. Ltd., (1997) 8 JT 653, p. 665 : AIR 1998 SC 640.
31
1932 AC 562 : 101 LJPC 119 : 147 LT 281 : 48 TLR 494.

32
Supra , note 29.

33
Abdul Latiff v. Pauling & Co ., (1916) 19 Bom LR 167, 171.

34
Wakelin v. London & South Western Ry. Co ., (1886) 12 App Cas 41. In this case the dead body of a man
was found on the line near the level crossing at night, the man having been killed by a train which carried
the usual head-lights but did not whistle or otherwise give warning of its approach. No evidence was given
of the circumstances under which the deceased got on to the line. It was held that even assuming that there
was evidence of negligence on the part of the company, yet there was no evidence to connect such
negligence with the accident, and that the company was not liable. This case is distinguished in Jones v.
Great Western Ry. Co ., (1930) 47 TLR 39. Jones worked at a factory in front of which ran a railway siding,
belonging to the defendants, that had to be crossed to obtain access to the works. He was killed by being
crushed between the buffers of two trucks during shunting operations. No one saw the accident happen,
and there was no evidence how he got between the buffers. The defendants had employed a man to give
warning to any one before the train was shunted, but he did not see the deceased and therefore did not
Page 117 of 159
give him any warning. It was held that, as there was an absence of warning, an inference could be drawn
that the injury was due to the absence of that warning and that the defendants were liable for negligence. In
M. & S. M. Railway Co. Ltd. v. Jayammal , (1924) ILR 48 Mad 417, a girl of seven years was knocked down
by an engine of the defendants while she was crossing the railway line but she was held guilty of
contributory negligence.
35
Bengal Nagpur Railway Company Limited v. Taraprosad Maity, (1927) 48 CLJ 45. To render a railway
company liable for the omission on the part of the driver to whistle, it is necessary to prove that the driver
has been guilty of a breach of duty or an error of judgment or that he saw the danger and failed to give
warning. Failure to whistle is not the omission of any statutory precaution but in certain circumstances it
may be reasonable to whistle and failure to do so may be evidence of negligence. No absolute rule can be
laid down as to the circumstances under which the driver would be bound to whistle notwithstanding that it
is not a statutory duty to do so but that duty arises only where the circumstances call for a warning to be
given: Ibid .
36
See Titchener v. British Railways Board , (1983) 3 All ER 770 (HL) p. 775 : (1983) 1 WLR 1247 : 134 New
LJ 361; the existence and extent of any duty to fence will depend upon various factors.
37
Swarnalata v. Union of India , AIR 1963 Assam 117 : (1963) ILR 15 Ass 135. In this case it was found on
evidence that it was only when the members of the public using the road came on to the railway line that
they would be in a position to know that a train was approaching. See further Krishna Goods Carriers (P.)
Ltd. v. Union of India , AIR 1980 Del 92 [LNIND 1979 DEL 181].
38
Ramesh v. Union of India , AIR 1965 Pat 167 .

39
Praglee & Oil Mills v. Union of India , AIR 1980 All 168 ; Union of India v. Hanuman Prasad , AIR 1989 Cal
207 [LNIND 1988 CAL 174].
40
(1997) 8 JT 653 : (1997) 8 SCC 683 [LNIND 1997 SC 1348].

41
AIR 1954 VP 17 .
42
Ibid.
43
(1997) 8 JT 653, p. 667 : (1997) 8 SCC 603.
44
(1997) 8 JT 653, p. 661 : (1997) 8 SCC 603.
45
Dublin Wicklow and Wexford Ry. Co. v. Slattery , (1878) 3 App Cas 1155; Rogers v. Rhymney Ry ., (1872)
26 LT 879; Clarke v. Midland Ry ., (1880) 43 LT 381; Smith v. South Eastern Ry. Co ., (1896) 1 QB 178;
Mercer v. S.V. & C. Ry., Co's Managing Committee, (1922) 2 KB 549.
Page 118 of 159
46
Boyd v. Great Northern Ry ., (1895) 2 IR 555.

47
Bengal and North-Western Railway Company Ltd. v. Matukdhari Singh , (1937) ILR 16 Pat 672.
48
Dayashankar v. B.B. & C.I. Railway , (1931) ALJR 847.

49
Weller v. London, Brighton & South Coast Ry ., (1874) LR 9 CP 126; Bridges v. Directors &c. of North
London Ry. Co ., (1873-74) LR 7 HL 213.
50
Cokle v. London & South Eastern Ry. Co ., (1872) LR 7 CP 321, 326.

51
Robson v. North Eastern Ry. Co ., (1876) 2 QBD 85.

52
Praeger v. The Bristol and Exeter Ry. Co ., (1871) 24 LTNS 105.

53
Lewis v. London, Chatham & Dover Ry. Co ., (1873) 43 LJ QB 8; Siner v. Great Western Ry. Co ., (1869)
LR 4 Ex. 117.
54
Owen v. The Great Western Ry. Co ., (1877) 46 LJ QB 486.

55
PER COCKBURN, C. J. in Rose v. North Eastern Ry. Co ., (1876) 2 Ex D 248, 250. In this case a railway
train drew up at a station with two of the carriages beyond the platform. The servants of the company called
out to the passenger to keep their seats, but were not heard by the plaintiff and the other passenger in one
of the carriages. After waiting some little time, and the train not having been put back, the plaintiff got out,
and in so doing fell and was injured. It was held that the railway company was liable for negligence.
56
Kessowjee v. G.I.P. Ry ., (1904) 6 Bom LR 673, (1904) 7 Bom LR 119, (1907) 9 Bom LR 671 [LNIND 1907
BOM 92], 34 IA 115.
57
Weller v. L.B. & S.C.Ry ., (1874) LR 9 CP 126; Praeger v. B. & E. Ry ., (1871) 24 LTNS 105.
58
Sharpe v. Southern Railway, (1925) 2 KB 311.

59
Robson v. N.E. Ry. Co ., (1876) 2 QBD 85. See Owen v. G. W. Ry ., (1877) 46 LJQB 486.
60
Page 119 of 159
Lewis v. L.C.D.Ry ., (1873) 43 LJQB 8. See Harrold v. The Great Western Ry. Co ., (1866) 14 LT 44.
61
Woodhouse v. C. & S. E. Ry. Co ., (1868) 9 WR (Eng.) 73.

62
Kessowjee Issur v. Great Indian Peninsula Railway , (1907) 34 IA 115 : 9 Bom LR 671. The case is noted
also in f.n. 55, supra.
63
AIR 2001 SC 3660.
64
Ibid pp. 3665, 3667. See further Carmarthenshire County Council v. Lewis, (1955) AC 549 : (1955) 2 WLR
517 : (1955) All ER 565 (HL); Barnes v. Hampshire County Council , (1969) 3 All ER 746 (HL). Both there
cases are discussed at p. 468, ante .
65
E (a minor) v. Dorset County Council , (1994) 4 All ER 640 (CA) p. 667 : (1995) 2 AC 685. See further pp.
5 to 8 ante .
66
Smith v. Eric S. Bush (a firm) , (1989) 2 All ER 514 (HL), p. 525 : (1990) 1 AC 831 : (1998) 2 WLR 790. For
valuers see pp. 632, 633.
67
Catchpole v. Ambergate etc. Ry. Co ., (1852) 1 El. & Bl. 111.

68
Gisburn v. Hurst, (1709) 1 Salk 249.

69
Watkins v. Cottell, (1916) 1 KB 10.

70
East Indian Railway Company v. Sispal Lal, (1911) 14 CLJ 472. See Lakhichand v. GIP Railway , (1911) 14
Bom LR 165 : ILR 37 Bom 1.
71
Gill v. Manchester Ry. Co ., (1873) LR 8 QB 186; Lakhichand v. GIP Railway, Ibid .

72
Nugent v. Smith, (1876) 1 CPD 423. See Akhil Chandra v. IGN & Ry. Co ., (1915) 21 CLJ 565 ; Surendra
Lal Choudhuri v. Secretarty of State for India in Council , (1916) 21 CWN 1125; K.C. Dhar v. Ahmed Bux ,
(1933) 37 CWN 559; River Steam Navigation Co. Ltd. v. Shyamasundar Tea Co. Ltd ., ILR (1954) 6 Assam
433 . If loss is caused owing to “perils of the sea,” the defendant must prove it; Esufali v. Thaha Ummal ,
ILR (1924) 47 Mad 610 .
73
Price & Co. v. Union Lighterage Co ., (1903) 1 KB 750; Wyld v. Pickford , (1841) 8 M & W 443; Hajee Ismail
Sait v. The Company of the Messageries Maritimes of France , (1905) ILR 28 Mad 400. See Carriers Act
Page 120 of 159
(III of 1865), ss. 3, 6, 9; the Indian Contract Act (IX of 1872), s. 152 ; the Indian Railways Act (X of 1880),
s.72. The condition must not be inconsistent with the provisions of the Indian Carriers Act,e.g. any condition
exonerating carrier from liability for the negligence of its servants or agents is void: River Steam Navigation
Co. Ltd. v. Jamunadas Ramkumar , (1931) ILR 59 Cal. 472. The Indian Contract Act does not apply to
common carriers by sea, and a common carrier cannot reduce his liability to that of a bailee under s. 151 of
the Contract Act. A common carrier cannot contract out of his common law liability:Alibhai Mahomed v.
B.I.S.N. & Co ., (1919) 12 BLT 173. See, however, Dekhari Tea Co. Ltd. v. Assam Bengal Ry. Co. Ltd .,
(1919) ILR 47 Cal 6; Easwara Iyer & Sons v. Madras Bangalore Transport , (1964) ILR 1 Mad 997. See
Indian Airlines Corporation v. Keshavlal , AIR 1962 Cal 290 [LNIND 1961 CAL 87]: 65 CWN 949, where a
common carrier who in the contract of carriage of goods by air from Bombay to Calcutta had contracted
itself out of liability for loss of or damage to goods due to negligence of its staff was held not liable for
damages for loss of goods due to such negligence. See also National Tabocco Co. v. Indian Airlines Corpn
., AIR 1961 Cal 383 [LNIND 1960 CAL 169].
74
Vosper v. Great Western Ry. Co ., (1928) 1 KB 340; Great Western Ry. Co. v. Bunch , (1888) 13 App Cas
31. A railway company, when sued for loss of goods entrusted to it for carriage, may exonerate itself by
proof of general care, in dealing with large quantities of similar goods and proving that that amount of care
is usually sufficient to prevent loss, damage or destruction: Hirji Khetsy v. B. B. & C. I. Ry ., (1914) 16 Bom
LR 467 [LNIND 1914 BOM 34] : ILR 39 Bom 191. If it is shown that the company has failed to take as much
care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods
of the same bulk, quality and value, it would be liable : Narsinggirji Manufacturing Co. v. G.I.P. Ry . (1918)
21 Bom LR 406; Surendra Lal Chowdhuri v. Secretary of State for India in Council , (1916) 21 CWN 1125.
75
Patel Roadways Ltd. v. Birla Yamaha Ltd., JT 2000 (3) SC 618 [LNIND 2000 SC 522], pp. 632, 633 : AIR
2000 SC 1461, pp. 1468, 1469 : (2000) 4 SCC 91 [LNIND 2000 SC 522].
76
Ibid. Followed in Economic Transport Organization (M/s.) v. Dhanwad District Khadi Gramodyog Sangh , JT
2000 (4) SC 327 [LNIND 2000 SC 566]: AIR 2000 SC 1635 : (2000) 5 SCC 78 [LNIND 2000 SC 566].
77
Arvind Mills Ltd. v. M/s. Associated Roadways , AIR 2004 SC 5147.

78
Austin v. Great Western Ry. Co ., (1867) LR 2 QB 442, 445.

79
Christie v. Griggs , (1809) 2 Camp 79; Aston v. Heaven , (1797) 2 Esp 533.
80
East India Ry. v. Kalidas Mukerjee, (1901) AC 396; 3 Bom LR 293; ILR 28 Cal 401; Shiam Narain Tikkoo v.
The B.B. & C.I. Ry. Co ., (1919) ILR 41 All 488. See Ishwardas Varshni v. King Emperor , (1921) ILR 1 Pat
260 and Union of India v. S.N.M. Bairogiya , (1954) ILR 33 Pat 249, as to the liability of railway companies
for overcrowding in railway compartments.
81
Jewan Ram Khettry v. E.I.Ry. Co ., (1924) ILR 51 Cal 861. If an accident is due to the train leaving the
metals, the railway company is liable for negligence unless it proves that it took all such steps as skilful,
prudent, and foresighted persons under the circumstances would have taken to avoid the accident: Ibid .
Page 121 of 159
82
Readhead v. Midland Ry. Co ., (1869) LR 4 QB 379. It is, however, the duty of those who carry passengers
to see that every part of the car or bus which is likely to go out of order and create accident is properly
examined: Bhurmal etc. Motor Assoc. v. Raghunath , (1962) 65 Bom LR 180 : 1963 Mh LJ 241 : AIR 1963
Bom 144 [LNIND 1962 BOM 45].
83
Thompson v. L.M. & S. Ry. Co ., (1930) 1 KB 41.

84
O'Connor v. British Transport Commission , (1958) 1 All ER 558 : (1958) 1 WLR 346 : 102 SJ 214.
85
Sumati Devi M. Dhanwatay v. Union of India , AIR 2004 SC 2368 : (2004) 6 SCC 113 [LNIND 2004 SC
445].
86
Jenkyns v. Southampton, etc. Steam Packet Co., (1919) 2 KB 135.

87
P.A. Narayanan v. Union of India , AIR 1998 SC 1659 : JT 1998 (1) SC 749 [LNIND 1998 SC 203]: (1998)
3 SCC 67 [LNIND 1998 SC 203]. Such a case will now also be covered by Section 123 1994 in the
Railways Act, 1989.
88
East India Ry. v. Kalidas Mukerjee, (1901) AC 396; 3 Bom LR 293.

89
Vishnu v. B.B. & C.I. Ry ., (1923) 25 Bom LR 881 [LNIND 1923 BOM 124].
90
The section applies when there is an ‘accident’. Having regard to its object the section has been liberally
construed : Sunil Kumar Ghosh v. Union of India , (1983) MPLJ 437.
91
Union of India v. M. Thankaraj , AIR 2000 Ker 91 ; Union of India v. Kamlesh Goel (Smt.) , AIR 2001 Raj
102 (Snatching of a passenger's gold chain); Union of India v. Uggina Srinivas Rao , AIR 2001 AP 360
[LNIND 2001 AP 122] (falling of passenger).
92
Union of India v. Prabhakar Vijay Kumar, (2008) 9 SCC 527 [LNIND 2008 SC 1066] para 11 : (2008) 4 JT
598.
93
Union of India v. Prabhakar Vijay Kumar, supra para 17.

94
Sidhu v. British Airways plc, (1997) 1 All ER 193 : (1997) AC 430 : (1997) 2 WLR 26 (HL).
95
Page 122 of 159
Fellowes (or Herd) v. Clyde Helicopters Ltd ., (1997) 1 All ER 775 : (1997) AC 534 : (1997) 2 WLR 380
(HL).
96
Kandimallan Bharati Devi v. General Insurance Corporation , AIR 1988 AP 361 [LNIND 1987 AP 267].
97
(2001) 3 All ER 126 (CA).
98
Ibid.
1
Re Deep Vein Trambosis and Air Travel Group Litigation , (2004) 1 All ER 445 (CA).
2
Barclay v. British Airways, (2009) 1 All ER 871 (C.A.).

3
See Appendix II, pp. 701 and 722.

4
See , pp. 509, 510.

5
Thompson v. Lacy , (1820) 3 B & Ald 283.

6
Packhurst v. Foster, (1700) 1 Salk 387 ; Dansey v. Richardson , (1854) 3 E & B 144.
7
Thompson, v. Lacy, supra .

8
See text and notes 12, 19, 20, 22 to 28, infra.

9
Rex v. Ivens , (1835) 7 C & P 213.

10
Browne v. Brandt, (1902) 1 KB 696.

11
Lamond v. Richard, (1897) 1 QB 541.

12
Constantine v. Imperial Hotels Ltd ., (1944) 1 KB 693 : 172 LT 128 : (1944) 2 All ER 171. See further the
Hotel Proprietor Act, 1956.
13
Page 123 of 159
Calye's case (1584) Coke Rep, Vol. IV, Book VIII, f. 32; Morgan v. Ravey , (1861) 6 H & N 265; Shacklock
v. Ethorpe Ltd ., (1939) 3 All ER 372. See Whateley v. Palanji Pestanji , (1866) 3 BHC (OCJ) 137, where it
was held that the common law of England regulated the relation of a Parsi innkeeper and a European guest
in Bombay and that an innkeeper was liable for the loss of the goods of his guest without proof of actual
negligence. This case is, however, distinguished by the Allahabad High Court in a case in which it has held
that the Bombay decision has no application to the mofussil of India and that the liability of a hotelkeeper to
his guest is regulated by s. 151 of the Indian Contract Act. Where, therefore, the property of a guest at a
hotel was stolen from his room while he was at dinner in a different part of the hotel building, and it was
found that the room occupied by him was to the knowledge of the hotel-keeper in an insecure condition,
which the latter had taken no steps to rectify, it was held that the hotel-keeper was liable:Jan v. Cameron ,
(1922) ILR 44 All 735.
14
Wright v. Anderson, (1898) 1 KB 209.

15
Dawson v. Chamney, (1843) 5 QB 164.

16
Scarborough v. Cosgrove, (1905) 2 KB 805; Dansey v. Richardson , (1854) 3 E & B 144.

17
Winkworth v. Raven, (1931) 1 KB 652.

18
Maclenan v. Segar, (1917) 2 KB 325.

19
See note 13, supra.

20
Klaus Mittelbachert v. The East India Hotels Ltd. , AIR 1997 Del 201 [LNIND 1997 DEL 27], p. 214.
21
Calye's case, (1584) Co. Rep., Vol. IV Bk VIII, f. 32; otherwise if the innkeeper had put the horse to grass of
his own accord: Howley v. Smith , 25 Wend 642.
22
Orchard v. Bush & Co ., (1898) 2 QB 284.

23
Brewster v. Drennan , (1945) 2 All ER 705.

24
Carpenter v. Haymarket Hotel Ld ., (1931) 1 KB 364.

25
Olley v. Marlborough Court Ld ., (1949) 1 KB 532.

26
Maclenan v. Segar, (1917) 2 KB 325.

Page 124 of 159
27
Campbell v. Shelbourne Hotel Ltd ., (1939) 2 KB 534.

28
Klaus Mittelbachert v. The East India Hotels Ltd., AIR 1997 Del 201 [LNIND 1997 DEL 27].
29
Winkworth v. Raven, (1931) 1 KB 652.

30
Watson v. Peoples Refreshment House Association Ltd ., (1952) 1 KB 318.

31
Williams v. Linnit, (1951) 1 KB 565.

32
Lanphier v. Phipos , (1838) 8 C & P 475; Slater v. Baker , (1767) 2 Will 359, 8 East 348; Dryden v. Survey
C.C ., (1936) 2 All ER 535, Poonam Verma v. Ashwin Patel , AIR 1996 SC 2111, p. 2116.
In an action by a medical practitioner to recover the amount of his fees it is open to the defendant to lead
evidence to show that he treated the patient ignorantly or improperly, which plea, if proved, furnishes a
good defence to the action : Parreira v. Gonsalves , (1905) 8 Bom LR 93.
33
Anto Nio Dias v. Fredreick Augustus , AIR 1936 PC 154.

34
Dr. Laxman v. Dr. Trimbak , AIR 1969 SC 128 : (1969) 1 SCR 206 [LNIND 1968 SC 147] ; A.S. Mittal v.
State , AIR 1989 SC 1570, p. 1574 : (1989) 3 SCC 223 [LNIND 1989 SC 670]. [Mittal's case refers to the
guidelines issued by the Central Government for holding eye camps (p. 1575)]; Poonam Verma v. Ashwin
Patel, supra , p. 2116; State of Haryana v. Santra (Smt.) , AIR 2000 SC 1888, p. 1891 : (2000) 5 SCC 182
[LNIND 2000 SC 700].
35
Ibid.
36
Ibid.
37
AIR 1996 SC 2377 : 1996 (2) Scale 328 [LNIND 1996 SC 441] : (1996) 2 SCC 634 [LNIND 1996 SC 441].
38
Ibid , p. 336 (scale). See further Spring Meadows Hospital (M/s.) v. Harjar Ahluwalia , (1998) 2 JT 620, p.
628 : AIR 1998 SC 1801, p. 1806 : (1998) 4 SCC 39 [LNIND 1998 SC 357] (Error of Judgment which a
reasonably competent doctor would not have made amounts to negligence); State of Haryana v. Santra
(Smt.), supra , p. 1892; Vinitha Ashok v. Lakshmi Hospital, AIR 2001 SC 3914 p. 3923 : (2001) 8 SCC 731
[LNIND 2001 SC 2143] (case of ectopic pregnancy. Removal of pregnancy was done without
ultrasonography and uterus of the patient had to be removed. There was expert evidence to indicate that
ultrasonography would not have established ectopic pregnancy but some textbooks indicated otherwise.
Page 125 of 159
The general practice in the area in which the doctors practised was not to have ultrasonography therefore
no negligence was attributed on this ground even if two views could be possible). Smt. Archana Paul v.
State of Tripura , AIR 2004 Gau 7 [LNIND 2003 GAU 175] (sterilisation conducted with due care. Petitioner
told that there is a failure rate of 2% to 2.63%. Petitioner agreeing that she will not make the doctor liable if
operation fails. No case made out for award of damages). See further ’sterilisation operation—whether
Medical Negligence’ AIR 2004 Journal 291 . For damages in such case see pp. 234, 235, supra.
39
A.S. Mittal v. State of U.P. , AIR 1989 SC 1570 p. 1575 : (1989) 3 SCC 223 [LNIND 1989 SC 670].
40
(1996) 2 Scale 328 [LNIND 1996 SC 441] p. 336. The disciplinary control of medical council does not
negative the liability of doctors for negligence; Indian Medical Association v. V.P. Shantha , AIR 1996 SC
550 : (1995) 6 SCC 651 [LNIND 1995 SC 1110].
41
Savita Garg v. Director National (Heart Institute), (2004) 8 SCC 56 [LNIND 2004 SC 1064], p. 64 : AIR 2004
SC 5088.
42
Pt. Parmanand Katara v. Union of India , AIR 1989 SC 2039; Poonam Sharma v. Union of India, supra.
43
Bolam v. Friern Hospital Management Committee , (1957) 2 All ER 118 : (1957) 1 WLR 582 : 101 SJ 357.
44
Ibid.
45
Ibid.
46
Whitehouse v. Jordon , (1981) 1 All ER 267 (HL), p. 277 : (1981) 1 WLR 246 : 125 SJ 167; Maynard v.
West Midlands Regional Health Authority , (1985) 1 All ER 635 (HL), pp. 637, 638 : (1984) 1 WLR 634;
Sidaway v. Bathlem Royal Hospital , (1985) 1 All ER 643 (HL) pp. 648, 649, (LORD SCARMAN), p. 657
(LORD DIPLOCK), p. 650, (LORD BRIDGE). Also see Chin Keow v. Government of Malaysia, (1967) 1
WLR 813 (PC); Roe v. Minister of Health, (1954) 2 QB 66 : (1954) 2 WLR 915.
47
State of Haryana v. Santra (Smt.) , AIR 2000 SC 1888, p. 1891. See further: Ram Biharilal v. Dr. J.N.
Srivastava , 1985 ACJ (MP); Dr. Pinnamaneni Narsimha Rao v. Gundavarapa Jayaprakasee , AIR 1990 AP
207 [LNIND 1989 AP 42] pp. 215, 216; Venkatesh Iyer v. Bombay Hospital Trust , AIR 1998 Bombay 373
[LNIND 1998 BOM 490], pp. 390, 391. The Joint Director of Health Services v. Sonal , AIR 2000 Mad 305
[LNIND 2000 MAD 280], pp. 309, 310; Alpana Dutt (Mrs.) v. Apollo Hospitals Enterprises , AIR 2000 Mad
340 [LNIND 2000 MAD 185]; State of Gujarat v. Laxmiben Jayantilal Sikligar , AIR 2000 Guj 180 [LNIND
1999 GUJ 553]; Dr. M.K. Gourikuty v. M.K. Raghavan, AIR 2001 Kerala 398 [LNIND 2001 KER 347];
Poonam Sharma v. Union of India , AIR 2003 Del 50 [LNIND 2002 DEL 1551], p. 59.
48
(2005) 6 SCC 1 [LNIND 2005 SC 587].

Page 126 of 159
49
Ibid , p. 19 (para 20).

50
Ibid , p. 33 (para 48-(4)). State of Punjab v. Shivram, (2005) 7 SCC 1 [LNIND 2005 SC 646], p. 7, 8 : AIR
2005 SC 3280. For this case which related to failure of sterilization operation, see p. 236, ante . Post
Graduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330 [LNIND 2009 SC
1365] para 20 : (2009) 7 JT 527 (In this case death was `surely materially contributed by mismatched blood
transfusion’ and death by medical negligence was proved, para 20).
51

52
(2009) 4 SCC 705 [LNIND 2009 SC 659] : (2009) 4 JT 266.

53
Maynard v. Midlands Regional Health Authority , (1985) 1 All ER 635 : (1998) 1 WLR 634 (HL).
54
Sidaway v. Bethlem Royal Hospital Governors , (1985) 1 All ER 643 : (1985) 2 WLR 480 : 135 New LJ 203
(HL). This case also holds that the English law does not recognise the doctrince of informed consent. See
text and notes 50, 51, p. 95 (title 10 Chapter V).
55
F. v. West Berkshire Health Authority , (1989) 2 All ER 545 (HL).

56
White House v. Jordan , (1981) 1 All ER 267 : (1981) 2 WLR 246 (HL); Poonam Verma v. Ashwin Patel ,
AIR 1996 SC 2111, p. 2116 (medical practitioner registered as Homeopath prescribing allopathic drugs,
patient dying, Doctor is perse guilty of negligence).
57
(2008) 2 SCC 1 [LNIND 2008 SC 81] paras 48 to 50 : AIR 2008 SC 1385, see p. 96 ante and p. 558 post .
58

59
Ibid para 106.

60
(1985) 1 All ER 635 : (1984) 1 WLR 634 : 128 SJ 317 (HL).

61
(1985) 1 All ER 635 (HL), p. 638 : (1984) 1 WLR 634 : 128 SJ 317. See further Jacob Mathew v. State of
Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587], pp. 20, 21 : AIR 2005 SC 3180.
62
Page 127 of 159
(1997) 4 All ER 771 (HL), p. 779 : (1997) 3 WLR 1151.

63
Ibid.
64
(1985) 1 All ER 643 : 135 New LJ 203 (HL).
65
(1987) 2 All ER 888 : (1988) QB 481 : (1987) 3 WLR 649 (CA). Followed in State of M.P. v. Sundari Bai ,
AIR 2003 MP 284 [LNIND 2003 MP 727].
66
(1986) 1 All ER 497 : (1986) QB 644 : (1986) 2 WLR 337 (CA). For damages recoverable in such cases
see Chap. IX title 1(D)(via).
67
Sidaway v. Bethlem Royal Hospital Governor , (1985) 1 All ER 643 (HL), p. 661 (Lord Bridge), p. 664
(LORD TEMPLEMAN).
68
(2002) 3 All ER 552 (CA) affirmed (2004) 4 All ER 578 (HL).

69
(1998) 72 ALJR 1344.
70
See f.n. 68, supra.

71
See cases in notes 79 and 85, pp. 559, 560.

72
(1989) 2 All ER 545 (HL).
73
Re B (a minor) (wardship: sterilization) , (1987) 2 All ER 206 (HL).

74
Practice Note (1993) 3 All ER 222 N.B. The case of F v. Berkshire Health Authority (note 69 supra) points
out that in the United States and Australia sterilization operation of a woman, who cannot give her consent,
requires consent of the court. In Canada sterilization of such a woman is unlawful unless performed for
therapeutic reasons as a life saving measure or for prevention of spread of disease. In India any
unwarranted sterilization of a woman would not merely violate the woman's right under the general law but
also her fundamental right under Article 21 of the Constitution. It is, therefore, necessary that the English
practice should be followed in India. The controversy that arose when hysterectomy operations were
performed on inmates of a Pune Government run Home for mentally deficient girls (See Indian Express,
Feb. 14, 1994) would have been avoided had prior permission of the High Court been obtained by a petition
under Article 226 for the operations.
In Arun Balkrishnan Aiyar v. M/s. Soni Hospital , AIR 2003 Mad 389 the patient underwent an operation for
removal of overian cyst for which her consent was taken. During the course of the operation, the surgeon
found that removal of the uterus was also necessary. As the patient was unconscious, consent of her
Page 128 of 159
husband was taken for removal of uterus. It was held that the consent so obtained in the circumstances
was valid.
75

76
Re B (adult's refusal of medical treatment) (2002) 2 All ER 449 (Tetraplegic patient being kept alive by
ventilator. Patient wishing to have ventilator turned off. Held right of a competent patient to request
cessation of treatment had to prevail over the natural desire of medical profession to try to keep the patient
alive.)
77
(1993) 1 All ER 821 : (1993) AC 789 : (1993) 2 WLR 316 (HL). See further Frenchay Health Care NHS
Trust v. S , (1994) 2 All ER 403 : (1994) 1 WLR 601 (CA).
78
Practice Note (1994) 2 All ER 413. Practice Note (1996) 4 All ER 766.
79
NHS Trust A v. M , (2001) 1 All ER 801 : (2001) 2 WLR 942.

80
See text and note 48 and 49, p. 95, ante.

81
Re, W (a minor) (medical treatment) , (1992) 4 All ER 627 : (1992) 3 WLR 758 (CA). In this case the court
permitted the treatment contrary to the wishes of the minor.
82
(1990) 3 All ER 930 (CA), p. 934 : (1991) 2 WLR 140.

83
(1997) 1 All ER 906 (CA),pp. 912, 913.
84
Re A (Children) (conjoined twins : surgical separation) (2000) 4 All ER 961 (CA).

85
St. George's Health Care NHS Trust v. S, (1998) 3 All ER 673 : (1998) 3 WLR 936 (A pregnant woman can
decline induced delivery and can insist for normal delivery).
86
Re T (adult : refusal of medical treatment) , (1992) 4 All ER 649 (CA); (In this case a patient refused blood
transfusion under the influence of her mother. Her father moved the Court and under the Court's direction
blood transfusion was given). For a case where a mentally ill patient refused food and the court ordered him
to be fed without his consent; see B. v. Croydon Health Authority, (1995) 1 All ER 683 : (1995) 2 WLR 294
(CA).
87
Ibid.
Page 129 of 159
88
Application No. 61827/00 9th March, 2004. Noted from (2004) 63 Cambridge Law Journal 306-309.
89
(1986) 3 All ER 801 : (1988) AC 1074 (CA).

90
Barnett v. Chelsea etc. Hosp. Management , (1968) 1 All ER 1068 : (1969) 1 QB 428 : (1968) 2 WLR 422.
91
Hillger v. The Governors of St. Barthlomew's Hospital, (1909) 2 KB 820.

92
Gold v. Essex County Council, (1942) 2 KB 293.

93
Ibid.
94
Roe v. Minister of Health , (1954) 2 All ER 136 : (1954) 2 QB 66 : (1954) 2 WLR 915. See further Chapter
VIII, Title 2(A)(i)(c), pp. 149, 150.
95
Strongways-Lesmere v. Clayton, (1936) 2 KB 11.

96
Gold v. Essex County Council, supra . See Chapter VIII title 2A(i)c, pp. 149, 150.
1
Mohan v. Osborne, (1939) 2 KB 14. See Morris v. Winsbury-White , (1937) 4 All ER 494. See further text
and notes 37 to 40, pp. 553, 554, ante and Arun Balkrishnan Aiyar v. M/s. Soni Hospital , AIR 2003 Mad
389 . While operating abdominal pad was left inside the body which was removed later by another
operation. The Surgeons and the hospital in relation to the first operation were held guilty of negligence and
liable for damages).
2
Lindsey County Council v. Mary Marshall, (1937) AC 97.

3
Cassidy v. Ministry of Health , (1951) 1 All ER 574 : (1951) 2 KB 343 : (1951) 1 TLR 539.
4
Dr. Pinnamenani Narsimha Rao v. Gundavarapu Jayaprakasu , AIR 1990 AP 207 [LNIND 1989 AP 42].
See further in a tubectomy operation when there was lack of adequate resuscitative facilities and trained
staff in a Government hospital the State was held vicariously liable though doctor operating was not
negligent and the husband of the woman, who died was awarded Rs. 1 lac as compensation. Rajmal v.
State , AIR 1996 Raj 80. When anaesthetist was not provided in a Government hospital, Government was
held liable in negligence : Dr. Leela Bai v. Sebastian , AIR 2002 Ker 262 [LNIND 2002 KER 101]. For
negligence in a medico legal case resulting in Death. See Poonam Sharma v. Union of India , AIR 2003 Del
50 [LNIND 2002 DEL 1551].
Page 130 of 159
Smt. Bholi Devi v. State of Jammu & Kashmir , AIR 2002 SC 65.
6
(2009) 6 SCC 1 [LNIND 2009 SC 1292] : (2009) 6 JT 651 (Appeals by both parties from the decision of the
National Consumer Disputes Redressal Commission).
7
P. Rathinam Nagbhusan Patnaik v. Union of India , AIR 1994 SC 1844 p. 1868.

8
Gian Kaur (Smt.) v. State , AIR 1996 SC 946 : 1996 (2) Scale 881 [LNIND 1996 SC 653] approving
Airedale NHA Trust v. Bland , 1993 (2) WLR 316 : (1993) 1 All ER 821 (HL) that euthanasia is not lawful.
9
(2002) 1 All ER 1 (HL).
10
Rodriges v. A.G. of Canada, (1994) 2 LRC 136.

11
Vacco v. Quill, (1997) 521 US 793; Washington v. Glucksberg, (1997) 521 US 702. But it appears that two
states in America namely Oregon and Washington have enacted laws permitting medically assisted suicide:
The Times of India 25/5/2009.
12
Northern Territory v. GPO , (1999) 73 ALJR 470, p. 480.

13
See (2002) 1 All ER 1 p. 26 (HL).
14
The Society for Right to Die with Dignity, formed recently in Bangalore, does not also advocate mercy killing
through poison injection. It only advocates that a terminally ill person should be allowed to die peacefully by
withdrawing all medication and life sustaining equipment except sedatives. (Indian Express, January 15,
1996).
15
PER TINDAL, C.J., in Godefroy v. Dalton , (1830) 6 Bing 460, 468.

16
Copeland v. Smith , (2000) 1 All ER 457 (CA), p. 462.

17
Walpole v. Partridge & Wilson , (1994) 1 All ER 385 : (1994) QB 106 : (1993) 3 WLR 1093 (CA).
18
Godefroy v. Jay , (1831) 7 Bing 413; Floyd v. Nangle , (1747) 3 Atk 568.
19
Fletcher & Son v. Jubb; Booth & Helliwell, (1920) 1 KB 275.

Page 131 of 159
20
Charles v. Hugh Jones & Jenkins , (2000) 1 All ER 289 (CA).

21
Simmons v. Rose; In Re. Ward , (1862) 31 Beav 1.

22
(1979) 3 All ER 580. For other cases where Solicitors were held liable see William Abercrombie v.
Frederick Chater-Jack , AIR 1932 PC 194; GAP, Brickenden v. London Loan & Savings Co., Canada , AIR
1934 PC 176.
23
White v. Jones , (1995) 1 All ER 691 : (1995) 2 AC 207 (HL).

24
(1997) 71 ALJR 487.
25
Ibid, p. 491.
26
(1987) 1 All ER 289 : (1987) 1 WLR 916 (CA).

27
Clarke v. Bruce Lane & Co ., (1988) 1 All ER 364 : (1988) 1 WLR 881 (CA).
28
Norton v. Cooper , (1856) 3 S & G 375.

29
Marsh v. Joseph, (1896) 13 TLR 136.

30
Groom v. Crocker, (1939) 1 KB 194 : (1938) 2 All ER 394 : 158 LT 447; Pilkington v. Wood, (1953) 1 Ch
770; Otter v. Church, Adams, Tatham & Co ., (1953) 1 Ch 280.
31
Sykes v. Midland Bank Executor , (1970) 2 All ER 471.

32
Saif Ali v. Sydney Mitchell & Co ., (1978) 3 All ER 1033 : (1980) AC 198 (HL).
33
Al Kandari v. J.R. Brown & Co. (a firm) , (1988) 1 All ER 833 : 1988 QB 665 (CA).
34
Somasundaram v. M. Julius Melochior & Co. (a firm) , (1989) 1 All ER 129 : (1988) 1 WLR 1394 (CA).
35
Clark Boyce v. Movat , (1993) 4 All ER 268 (PC).

Page 132 of 159
36
National Home Loans Corp. plc. v. Giffen Couch & Archer (a firm), (1997) 3 All ER 808 (CA).
37
Ronald v. Worsely , (1967) 3 All ER 993 : (1969) 1 AC 191 : (1967) 3 WLR 1666 (HL).
38
(2000) 3 All ER 673 (HL).
39
Moy v. Pettman Smith , (2005) 1 All ER 903 (HL).

40
Dorta Ekenaike v. Victoria Legal Aid , (2005) 79 ALJR 755 (KIRBY J. dissenting).
41
M. Veerappa v. Evelyn Squeira , AIR 1988 SC 506, p. 514 : (1988) 1 SCC 556 [LNIND 1988 SC 22].
42
43
Ibid.
44
R.D. Saxena v. Balaram Prasad Sharma , AIR 2000 SC 2912; New India Assurance Co. Ltd. v. A.K.
Saxena , AIR 2004 SC 311.
45
Joachimson v. Swiss Bank Corporation, (1921) 3 KB 110, 127.

46
Indian Iron & Steel Co. v. Bihar State Electricity Board , AIR 2004 Jhar 54 [LNIND 2003 JHAR 148].
47
Governor and Company of the Bank of Ireland v. Trustees of Evane Charities in Ireland, (1855) 5 HLC 389 ;
Coles v. The Bank of England , (1839) 10 Ad & E1 437; Ahmed Moola Dawood v. S.R.M.M.C.T. Pereinan
Chetty Firm , (1925) 3 BLJ 22.
48
(1827) 4 Bing 253.
49
London Joint Stock Bank v. Macmillan and Arthur, (1918) AC 777, distinguishing Scholfield v. Earl of
Londesborough, (1896) AC 514, 523 (in which LORD HALSBURY invited the House to overrule Young v.
Grote , (1827) 4 Bing 253, but four other Lords took a different view).
50
Mercantile Bank of India Ltd. v. Central Bank of India Ltd ., AIR 1938 PC 52.
51
Page 133 of 159
Greenwood v. Martins Bank Ltd ., 1933 AC 51 (HL).

52
Tai Hing Cotton Mill Ltd. v. Liu Chang Hing Bank Ltd ., (1985) 2 All ER 947 : (1986) 1 AC 801 : (1986) 3
WLR 317 (PC).
53
Ibid .
54
Ibid , followed in Canara Bank v. Canara Sales Corporation, (1987) 2 SCC 666 [LNIND 1987 SC 417] : AIR
1987 SC 1603 : (1987) 62 Com Cases 280.
55
Woode v. Martins Bank Ltd ., (1958) 3 All ER 166, (1959) 1 QB 55, (1958) 1 WLR 1018; Cornish v. Midland
Bank , (1985) 3 All ER 513 (CA).
56
Bhagwan Das v. Creet , (1903) ILR 31 Cal 249, distinguishing Young v. Grote , (1827) 4 Bing 253, “which
has created as much diversity of opinion as any case in the books” : per LORD MACNAGHTEN in
Scholfield v. Earl of Londesborough, (1896) AC 514. See Punjab National Bank, Limited v. The Mercantile
Bank of India, Limited , (1911) ILR 36 Bom 455: 13 Bom LR 835. See J.G. Robinson v. The Central Bank of
India Ltd. , (1931) ILR 9 Ran 585, where there was want of proper inquiry on the part of collecting bank
owing to certain suspicious circumstances. In Mahabir Prasad v. United Bank of India , AIR 1992 Cal 270
[LNIND 1992 CAL 88], it has been held by the Calcutta High Court that a suit by customer for recovery of
amount paid by the banker on a forged cheque cannot be defeated by merely pleading negligence; but the
banker can sue in tort for damages for negligence.
57
Bihar Co-op. D. & C. M. Ltd. v. Bank of Bihar , AIR 1967 SC 389 : (1967) 1 SCC 848.
58
Canara Bank v. Canara Sales Corporation, (1987) 2 SCC 666 [LNIND 1987 SC 417] : AIR 1987 SC 1603 :
(1987) 62 Com Case 280.
59
Pirbhu Dayal v. Jwala Bank , ILR 1938 All 634; Firm R.B. Bansilal Abirchand v. Sadasheo , ILR 1943 Nag
687.
60
Bank of Montreal v. Dominion Gresham Guarantee and Casualty Co., (1930) AC 659.
61
PER LORD MORRIS of Borth-y-Gest in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., (1964) AC 465 :
(1963) 2 All ER 575 : (1963) 3 WLR 101.
62
Ibid . See title 4, Chapter XXI, p. 657.

63
Ram Lal Bhadani v. Dass Bank Ltd ., (1943) ILR 1 Cal 15.
Page 134 of 159
64
Halsbury's Laws of England (4th edition) , Vol. 3 para 94; UCO Bank v. Hem Chandra Sarkar , AIR 1990
SC 1329 : (1990) 3 SCC 389 [LNIND 1990 SC 277].
65
Donoghue v. Stevenson, (1932) AC 562 : 48 TLR 494 : 147 LT 281; Bates v. Batey & Co. Ltd ., (1913) 3 KB
351, Overruled. For a case of defective motors incorporated in pumps used in a fish farm, see Muirhead v.
Industrial Tank Specialities Ltd ., (1985) 3 All ER 705 : (1986) QB 507 : (1985) 3 WLR 993.
66
Kubach v. Hollands , (1937) 3 All ER 907 : 81 SJ 766.

67
Herschtal v. Stewart and Arden Ltd ., (1940) 1 KB 155; (1939) 4 All ER 123.
68
Aswan Engineering v. Lupdine Ltd ., (1987) 1 All ER 135 (CA), p. 153.

69
Dransfield v. B. I. Cables, Ltd ., (1937) 4 All ER 382 : 54 TLR 11 : 82 SJ 95.

70
Watson v. Buckley , (1940) 1 All ER 174.

71
Haseldine v. C.A. Daw & Son Ltd ., (1941) 2 KB 343 : (1941) 3 All ER 156.
72
Eastern M.C. Ltd. v. Premier Auto Ltd ., (1962) 65 Bom LR 183.

73
Duttan v. Bogonor Regis. United Building Co . Ltd ., (1972) 1 All ER 462, pp. 471, 472 : (1972) 1 QB 373.
74
(1977) 2 All ER 492 : (1978) AC 278 (HL).

75
Ibid , p. 504. See further pp. 511, 512 (LORD SALMON for the same view).
76
(1984) 1 All ER 930 : (1984) QB 1 : (1984) WLR 426.

77
(1982) 3 All ER 301 : (1983) AC 520 : (1982) 3 WLR 477 (HL).

78
D & E Estates Ltd. v. Church Commissioners , (1988) 2 All ER 992 (HL); Murphy v. Brentwood District
Council , (1990) 2 All ER 908 (HL); Department of Environment v. Thomas Bates & Sons Ltd ., (1990) 2 All
ER 943 (HL). See the discussion of these and other cases pp. 486 to 488, ante .
79
Page 135 of 159
Donoghue v. Stevenson, (1932) AC 562 : 48 TLR 494.

80
Grant v. Australian Knitting Mills Ltd ., (1936) AC 85 : 79 SJ 815 : 52 TLR 38. See Evans v. Triplex Safety
Glass Co. Ltd ., (1936) 1 All ER 283, where the above case was distinguished on the ground that the
plaintiff had not proved negligence in the manufacture of glass by the defendant company. See Parker v.
Oloxo Ltd ., (1937) 3 All ER 524, where the manufacturers were held liable for supplying hair-dye to a
shopkeeper who applied it to the plaintiff who thereby got an acute attack of dermatitis and nervous trouble.
See Watson v. Buckley , (1940) 1 All ER 174, which is also a case of hair-dye. See further text and note
86, p. 573, infra for another case of hair-dye.
81
Herschtal v. Stewart and Arden Ltd ., (1940) 1 KB 155 : (1939) 4 All ER 123.
82
Haseldine v. C.A.Daw & Son Ltd ., (1941) 2 KB 343 : (1941) 3 All ER 156.
83
Stennett v. Hancock , (1939) 2 All ER 578 : 83 SJ 379.

84
Barnett v. Packer & Co ., (1940) 3 All ER 575.

85
Farr v. Butters Bros. & Co ., (1932) 2 KB 606 : 147 LT 427.

86
Holmes v. Ashford , (1950) 2 All ER 76 : (1950) 2 All ER 76.

87
Davie v. New Merton Board Mills Ltd ., (1958) 1 QB 210, affirmed by HOUSE OF LORDS in (1959) AC 604.
88
Gledhill v. Liverpool Abattoir Utility Co., Ltd ., (1957) 3 All ER 117 : (1957) 1 WLR 1028: 101 SJ 797. See
also the liabilities created by the Consumer Protection Act, 1986 which extends to goods as well as
services.
89
For the text of section 2 of the Act and its interpretation see Mirvahedy v. Henley , (2003) 2 All ER 401 (HL).
90
State of H.P. v. Halli Devi (Smt.), AIR 2000 HP 113 [LNIND 2000 HP 17].
91
Filburn v. People's Palace & Aquarium Co ., (1890) 25 QBD 258, 261.

92
1 Hale PC 420.
93
May v. Burdett, (1846) 9 QB 101.

Page 136 of 159
94
Filburn v. People's Palace and Aquarium Co., supra : Vedapuratti v. Koppon Nair , (1911) ILR 35 Mad 708;
Maung Kyaw Dun v. Ma Kyin , (1900) 7 Burma LR 73, in which it was held that in the country a man was
not liable for any damage done by his elephant without any proof of negligence or that he knew it to be of
vicious disposition in view of the manner in, and extent to, which elephants are employed in the country, is
not followed by the Madras High Court in the above case. See Behrens v. Beriram Mills Circus Ltd ., (1957)
2 QB 1 : (1957) 1 All ER 583 : (1957) 2 WLR 404, where it was held that elephants were ferae naturae and
it made no difference that the elephant in the case was, in fact, tame and no more dangerous than a cow.
95
Nitin Walia v. Union of India , AIR 2001 Del 140 [LNIND 2000 DEL 885], p. 142.
96
Ibid.
97
Kearry v. Pattinson, (1939) 1 KB 471 : 160 LT 101 : (1939) 1 All ER 65.

1
May v. Burdett, (1846) 9 QB 101.

2
Ibid , pp. 110, 112.

3
Filburn v. People's Palace and Aquarium Co ., (1890) 25 QBD 258, 261.

4
Mc Quaker v. Goddard, (1940) 1 KB 687.

5
Ibid.
6
Mason v. Kelling , (1699) 12 Mod 332.

7
Buckle v. Holmes, (1926) 2 KB 125.

8
Cox v. Burbidge , (1863) 13 CB NS 430; Bradley v. Wallaces Ltd ., (1913) 3 KB 629. A person is guilty of
negligence if he allows an unbroken colt to run loose after a mare on a highway at night: Turner v. Coates,
(1917) 1 KB 670; Manton v. Brocklebank, (1923) 2 KB 212 : 39 TLR 344. Knowledge that a horse has a
propensity to bite horses is no evidence of knowledge of a propensity to bite mankind: Glanville v. Sutton,
(1928) 1 KB 571 : 44 TLR 98.
9
Jackson v. Smithson , (1846) 15 M & W 563.

10
Page 137 of 159
Hudson v. Roberts , (1851) 6 Ex 697.

11
McQuaker v. Goddard, (1940) 1 KB 687 : 44 TLR 98.

12
Osborne v. Chocqueel, (1896) 2 QB 109; Lenon v. Fisher , (1923) 25 Bom LR 873 [LNIND 1923 BOM 87].
13
Baldwin v. Casella , (1872) LR 7 Ex 325. But if no special servant is appointed to keep control over the dog,
the knowledge of any servant of the dog's owner will not be sufficient: Stiles v. The Cardiff S.N. Co ., (1864)
33 LJQB 310.
14
Krishna Rao v. Maroti , ILR (1937) Nag 17. A person who keeps domestic animals which become animals
ferae naturae is liable for damage caused by them : Gould v. Mcaulifee , (1941) 1 All ER 515.
15
Baker v. Snell, (1908) 2 KB 352 : 99 LT 753 : 24 TLR 811.

16
Prakash Kumar Mukerji v. Harvey , (1909) ILR 36 Cal 1021.

17
Lennon v. Fisher , (1923) 25 Bom LR 873 [LNIND 1923 BOM 87].

18
Fardon v. Harcourt-Rivington, (1932) 48 TLR 215 : 48 TLR 215.

19
Clinton v. J. Lyones & Co ., (1912) 3 KB 198.

20
Buckle v. Holmes, (1926) 2 KB 125 : 134 LT 743 : 42 TLR 369.

21
Lowery v. Walker, (1911) AC 10. See Gonda Singh v. Chuni Lal Shaha , (1915) 19 CWN 916.
22
White v. Steadman, (1913) 3 KB 340 : 109 LT 249 : 29 TLR 563.

23
Fitzgerald v. Cooke Bourne (Farms) Ltd ., (1963) 3 All ER 36 : (1964) 1 QB 249.

24
Mungal Singh v. Lehna Sing , (1870) PR No. 72 of 1870.

25
Rands v. Mcneil, (1955) 1 QB 253 : (1954) 3 All ER 593.

26
Page 138 of 159
Dominion Natural Gas Co. Ltd. v. Collins and Perkins, (1909) AC 640, 646, 649 : 25 TLR 831.
27
Griffiths v. Arch Engineering Co ., (1968) 3 ALL ER 217, p. 220.

28
Read v. J. Lyons & Co ., (1947) AC 156 (HL) pp. 172, 173, 180, 181 : (1945) KB 216.
29
Royal Commission in Civil Liability and Compensation for personal injury. Comnd. 7054 (Vol.1), Chap. 31.
30
Tuberville v. Stamp, (1697) 1 Salk 13.

31
Musgrove v. Pandelis, (1919) 2 KB 43 : 120 LT 601 : 35 TLR 216, Mason v. Levy Auto Parts of England Ltd
., (1967) 2 All ER 62 : (1967) 2 WLR 1384.
32
(1967) 1 AC 645 : (1966) 3 WLR 513 (PC) considered in Stovin v. Wise, (1996) 3 All ER 801 (HL), p. 819.
For a case of vandals causing fire see Smith v. Littlewoods Organisation Ltd ., (1987) 1 All ER 710 (HL)
and text and notes 50 to 52, p. 495, supra .
33
(1967) 2 All ER 62 : (1967) 2 QB 530.

34
Ibid.
35
PER COCKBURN, C. J. in Vaughan v. Taff Vale Ry. Co ., (1860) 5 H & N 679, 685; The Secretary of State
for India in Council v. Kali Brahmo Chatterjee , (1928) 33 CWN 50. The effect of Vaughan v. Taff Vale Ry.
Co ., is considerably narrowed down by the Railway Fires Act, 1905, 5 Edw. VII, c. 11 and Railway Fires
Act, 1923, (13 & 14 Geo. 5, c. 27). The Act provides that when damage is caused to agricultural land or
crops by fire arising from sparks or cinders emitted from any locomotive engine used on a railway, the fact
that the engine was used under statutory powers shall not affect liability in an action for such damage (s.1).
37
Jones v. Festiniog Ry. Co. , (1868) LR 3 QB 733. Where a cottage was destroyed by fire caused by a spark
emitted from a steam roller which was found to constitute a nuisance, it was held that the difference
between the money value of the owners’ interest before and after the fire should be the measure of
damages and not the cost of rebuilding the cottage: Moss v. Christchurch Rural Council, (1925) 2 KB 750.
38
(1987) 3 All ER 961 : (1987) 2 WLR 988 (HL).

39
Ibid, p. 966, where a passage from the judgement of WOOLF J. in (1983) 3 All ER 729, p. 736 is approved.
40
Page 139 of 159
Frost v. Chief Constable of the South Yorkshire Police , (1997) 1 All ER 540 : (1997) 3 WLR 1194 : (1997) 1
RLR 173 (CA).
41
Capital and Counties plc. v. Hampshire County Council , (1997) 2 All ER 866 : (1997) QB 1004 (CA).
42
The Secretary of State for India v. Dwarka Prasad , (1927) ILR 49 All 559; Bombay, Baroda and Central
India Railway v. Dwarka Nath , (1935) ILR 58 All 771. See Secretary of State for India v. Sheobhagwan
Chiranjilal , (1935) ILR 58 All 576.
43
Chinnaswami Chettiar V. Sundarammal, (1955) 1 MLJ 312 : (1955) MWN 41 : (1955) 68 LW 99.
44
Indrani Ammal v. Asappa, AIR 1968 Mad 366 [LNIND 1967 MAD 202].
45
Vaughan v. Menlove , (1837) 4 Scott 244.

46
M'Kenzie v. M'Leod , (1834) 10 Bing 385.

47
Balfour v. Barty King, (1957) 1 QB 496 : (1957) 1 QB 496 : (1957) 2 WLR 84, followed in Sturge v. Hackett ,
(1962) 3 All ER 166 : (1962) 1 WLR 1257. “Where fire escapes because it was negligently started or
controlled by someone other than the occupier, the occupier is liable unless that other person is a stranger;
a stranger, for this purpose, is a trespasser or a licensee acting in quite unexpected manner.” This was the
holding of the Court of Appeal in H.J.N. Emanuel v. Greater London Council , (1971) 2 All ER 835. Weir,
Case Book on Torts, 5th Edition, p. 379.
48
Sullivan v. Creed, (1904) 2 IR 317.

49
Dixon v. Bell , (1816) 5 M & S 198.

50
Burfitt v. A. & E. Kille, (1939) 2 KB 743 : (1939) 2 All ER 372.

51
Newton v. Edgerley , (1959) 3 All ER 337 : (1959) 1 WLR 1031.

52
Balakrishnan v. Subramanian , AIR 1968 Ker 151 .

53
Farrant v. Barnes, (1862) 11 CBNS 553.

54
Page 140 of 159
Lyell v. Ganga Dai , (1875) ILR 1 All 60 (FB).

55
Saliah Mohamed Haji Ibrahim v. Abdul Samath Sahib, (1935) 69 MLJ 218 [LNIND 1935 MAD 20] : 42 MLW
210 : (1935) MWN 865; Narasimha Ayyar v. Krishna Ayyar, (1940) 2 MLJ 11 [LNIND 1940 MAD 78] ;
(1940) MWN 698; Syeda Mahomed Rowther v. Shanmugasundaram, (1943) 1 MLJ 188 [LNIND 1942 MAD
384] : 55 MLW 109; (1943)1 MWN 136.
56
Williams v. Eady, (1893) 10 TLR 41.

57
Thomas v. Winchester , (1852) 6 NY 397, 409.

58
Clarke v. Army and Navy Co-operative Society, (1903) 1 KB 155 : 19 TLR 80.
59
Thomas v. Winchester , (1852) 6 NY 397, 409.

60
George v. Skivington , (1869) LR 5 Ex 1.

61
Oliver v. Saddler & Co ., (1929) AC 584.

62
Kothari Chhaganlal v. Nandwana Jayantilal , (1951) 4 Sau LR 124.

63
Clifford v. Charles H. Challen & Son Ltd ., (1951) 1 KB 495.

64
Philco Radio, Ltd. v. J. Spurling, Ltd ., (1949) 2 All ER 882 : 65 TLR 757 : 93 SJ 755.
65
Blenkiron v. The Great Central Gas Consum. Co ., (1860) 2 F & F 437; Dominion Natural Gas Co. Ltd. v.
Collins and Perkins, (1909) AC 640 : 101 LT 359 : 25 TLR 831.
66
PER COCKBURN, J., in Blenkiron v. The Great Central Gas Consum. Co ., (1860) 2 F & F 437, 440.
67
Ibid.
68
Parry v. Smith, (1879) 4 CPD 325 : 41 LT 93 : 27 WR 801.

69
Fryer v. Salford Corporation , (1937) 1 All ER 617 : (1937) 81 SJ 177.

Page 141 of 159
70
Mines and Quarries Act (2 & 3 Eliz II, c. 70); Factories Act (9 & 10 Eliz. II, c. 34); Lewis v. Denye, (1940) AC
921 : (1940) 3 All ER 299. The corresponding Indian Acts are Mines Act, 1952 and Factories Act, 1948.
71
Manohar Lal Sobha Ram Gupta v. M.P. Electricity Board, 1975 ACJ 494 (MP), p. 496. See further Smt.
Angoori Devi v. Municipal Corporation Delhi , AIR 1988 Del 305 [LNIND 1987 DEL 384]; Padma Behari Lal
v. Orissa State Electricity Board , AIR 1992 Orissa 68 ; Asa Ram v. MCD , AIR 1995 Del 164 [LNIND 1994
DEL 580]; Sagar Chand v. State of J&K, AIR 1999 J&K 154; H.S.E.B. v. Ramanath, (2004) 5 SCC 793. See
also text and notes 41 to 45, pp. 510, 511.
72
Butterfield v. Forrestor , (1809) 11 East 60, p. 61 : 10 RR 433. In this case the defendant had put up a pole
across a street road, which was discernible from 100 yards. The plaintiff came galloping on his horse and
rode against the obstruction and fell with the horse. In a suit for damages, the plaintiff failed as he too was
at fault in not slowing down the horse when the obstruction could be seen from 100 yards.
73
Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731 [LNIND 2003 SC 906], p. 737
: AIR 2003 SC 4882.
74
Davies v. Mann : (1842) 10 M & W 546 : 62 RR 698 is often referred to as the originator of the rule though
the words ‘last opportunity’ do not occur there. The plaintiff in this case fettered the forefeet of his donkey
and turned it into a narrow lane. It was run over by a heavy wagon belonging to the defendant. The wagon
was going a little too fast and was not properly looked after by the driver. In a suit for damages, the plaintiff
succeeded as the defendant by using ordinary care could have avoided the accident even though the
plaintiff was also at fault in turning the donkey into the lane with its forefeet fetterred.
75
British Columbia Electric Ry. v. Loach, (1916) 1 AC 719.

76
(1922) 1 AC 129 : 38 TLR 255 : 126 LT 425 : 66 SJ 156 (HL). The Maritime Conventions Act, 1911, applies
to India. Under this Act where by the fault of two or more vessels, damage or loss is caused to one or more
of them, to their cargoes, or freight or to any property on board, the liability to make good the damage or
loss shall be in proportion to the degree in which each vessel was in fault; but if it is impossible to establish
different degrees of fault, the liability shall be apportioned equally. Where loss of life or personal injuries are
suffered by any person on board of a vessel owing to the fault of that vessel and any other vessel or
vessels, the liability of the owner of the vessels shall be joint and several subject to any defence which
could have been pleaded to an action for the death or personal injury inflicted.
77
Ibid . p. 144. There was a rumour that the speech was really prepared by LORD PHILLIMORE (1950) 13
MLR 17.
78
Amercian Main Line Ltd. v. Afrika , AIR 1937 PC 168.

79
Page 142 of 159
Swadling v. Cooper, (1931) AC 1 : 46 TLR 597 : 143 LT 732. See further Stapley v. Gypsum Mines ,
(1953) 2 All ER 478 : (1953) 3 WLR 279 : (1953) AC 663 (HL).
80
Quoted with approval in Boy Andrews v. St. Roguvald , (1947) 2 All ER 350 : (1948) AC 140 (HL).
81
LORD WRIGHT, 13 Modern Law Review 5; Vidyadevi v. M.P. State Road Transport Corporation, 1974 ACJ
374 (MP), p. 379: AIR 1975 MP 89 [LNIND 1974 MP 54].
83
S. Parks v. Edward Ash Ltd ., (1943) 1 KB 223, p. 230; Vidyadevi v. M.P. State Road Transport
Corporation, supra .
84
FLEMING, Torts (6th Edition), p. 245.
85
Vidyadevi v. M.P. State Road Transport Corporation, 1974 ACJ 374 : AIR 1975 MP 89 [LNIND 1974 MP
54] (G.P. SINGH, J.); Subhakar v. Mysore State Road Transport Corporation , AIR 1975 Ker 73 ; Maya
Mukerjee v. The Orissa Co-operative Insurance Society , AIR 1976 Ori 224 [LNIND 1976 ORI 25]; Rehana
v. Ahmedabad Municipal Transport Service , AIR 1976 Guj 37 ; Rural Transport Service v. Bezlum Bibi ,
AIR 1980 Cal 165 [LNIND 1980 CAL 53]. The Kerala State has enacted the Kerala Torts (Miscellaneous
Provisions) Act, 1976.
86
Vidyadevi v. M.P. State Road Transport Corporation , supra.

87
Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731 [LNIND 2003 SC 906], p. 737
: AIR 2003 SC 4182. See further Smt. Indrani Raja Durai v. Madras Motor & General Insurance Company ,
(1996) 1 Scale 563.
88
The end result of apportionment legislation is to abolish not only the defence of contributory negligence but
also the last opportunity rule; March V. E & M.H. Stramare Pty. Ltd ., (1991) 65 ALJR 334 (High Court of
Australia), p. 337.
89
(1931) AC 1 : 143 LT 732 : 74 SJ 536 : 46 TLR 597 (HL). See p. 588.

90
AIR 1975 MP 89 [LNIND 1974 MP 54]: 1974 ACJ 374 (MP). For a similar English case see Lang v. London
Transport Executive, (1959) 1 WLR 1168; See further Worsfold v. Howl , (1980) 1 All ER 1028 (CA); Gujrat
State Road Transport Corporation v. Nabuben , AIR 1996 Guj 48 [LNIND 1995 GUJ 121]; Divyananda v.
Shiva , AIR 1998 Kant 106 [LNIND 1997 KANT 243]; Saffia Bee v. B. Sathar , AIR 2000 Mad 167 [LNIND
1999 MAD 417]; Purnarayan Sinha v. Election Commission , AIR 2001 Gau 32 [LNIND 2000 GAU 117].
91

92
Page 143 of 159
(2008) 3 SCC 748 [LNIND 2008 SC 227] paras 8 and 11 : (2008) 3 JT 297.
93

94
Oconnell v. Jackson, (1972) 1 QB 270 : (1971) 3 WLR 463 : (1971) 3 All ER 129; (Damages were reduced
by fifteen per cent.); Capps v. Miller , (1989) 2 All ER 333 (CA) (The plaintiff had not secured the strap of
the helmet; Damages reduced by ten percent).
95
Nance v. British Columbia Electric Railway Co ., (1951) AC 601 : (1951) 2 All ER 448. But the duty may
generally exist when there is a collision between two vehicles on the road for when two vehicles are so
moving in relation to one another as to involve risk of a collision, the driver of each vehicle owes a duty to
move with due care to avoid any collision; See Ibid ; and Vidyadevi v. M.P. State Road Trasport
Corporation, 1974 ACJ 374 (MP) p. 376. But see case in 97 below.
96
Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (MP) pp. 92, 95.
97
Pramod Kumar Rasikbhai Jhaveri v. Karmasey Kunvarg Tak , AIR 2002 SC 2864, p. 2866 : (2002) 6 SCC
455 [LNIND 2002 SC 479].
98
Ibid. See further title 7(c), p. 595 and text and note 62, p. 195.
1
Manjit Kaur v. Gurmail Singh, AIR 1985 P&H 216; S.D. Balaji v. General Manager Karnataka State
Roadways Transport Corporation, 1985 ACC CJ 150 ; M.P. State Road Transport Corporation v. Abdul
Rahman, AIR 1997 MP 248 [LNIND 1997 MP 5], p. 252.
2
Devi Singh v. Vikram Singh , M.A. No. 670/2007 D/17-10-2007.

3
Pramod Kumar Rasikhbhai Jhaveri v. Karmasey Kunwargi Tak , AIR 2002 SC 2864 : (2002) 6 SCC 455
[LNIND 2002 SC 479].
4
Jones v. Livox Quarries Ltd ., (1952) 2 QB 608, p. 615; approved by HOUSE OF LORDS in Westwood v.
The Post Office , (1973) 3 All ER 184 : (1974) AC 1 : (1973) 3 WLR 289 (HL) pp. 192, 193 subject to the
qualification that in case of safety precautions prescribed by statutory regulation, the plaintiff can assume
that the Regulations have been complied with.
5
Rouse v. Squires , (1973) 2 All ER 903 (CA). See further Chop Seng Hens v. The Vannasan , (1975) 3 All
ER 572 (PC) p. 577 : (1976) RTR 193. Rouse v. Squires was applied in Karnataka State Road Transport
Corporation v. K.V. Sakeena , (1996) 2 Scale 845 [LNIND 1996 SC 2539] pp. 848 to 850 : (1996) 3 SCC
446 [LNIND 1996 SC 2539] (A speeding bus at night collided with a truck trailer carrying a dumper which
Page 144 of 159
protruded one and half feet on either side of the trailer. Truck trailer driver held responsible to the extent of
40% and the bus driver to the extent of 60%); Pramod Kumar Rasikbhai v. Karmsey Kunvargi , AIR 2002
SC 2864. (A speeding truck had covered the road in such a way that it hardly left any room for a car coming
from the opposite direction to avoid the collison and so the car driver was not held guilty of contributory
negligence); P.S. Somaiah v. The Director Banglore Dairy , AIR 2003 Kant 258 [LNIND 2003 KANT 3]. (A
motor cyclist overtaking a milkman from the wrongside and dashing against a Maruti Car was held guilty of
contributory negligence upto 60%); Bijoy Kumar Dugar v. Bidya Dhar Dutta (2006) 3 SCC 242 : AIR 2006
SC 1255 (Head on collision of a Maruti car and a truck. Driver of the Maruti car found 50% liable for the
damage and damages reduced by 50%).
6
Sushma Mitra v. M.P. State Road Transport Corporation, 1974 ACJ 87 (M.P.), pp. 92, 95.
7
Ibid . See further Ishwardas Paulsrao Ingle v. General Manager Maharashtra State Road Transport
Corporation , AIR 1992 Bombay 396 [LNIND 1992 BOM 147].
8
Ibid ; pp. 92, 93, 94. See further State of Haryana v. Ram Pal , AIR 1989 P&H 137; Foo Kok Food v. Yap
Hai Chwee, 1972 ACJ 385 (Malaysia).
9
Gent-Driver v. Neville , (1953) QSR 1 ; FLEMING, Torts (sixth edition) p. 252. See further Shri Inja
Venkatrao v. Smt. Sundara Barik , AIR 1991 Orissa 104 (Passenger sitting on the roof of bus knocked
down by branch of a tree. Held no contributory negligence. Case does not seem to be correctly decided.)
10
Platform Home Loans Ltd. v. Oyssen Shipways Ltd., (1999) 1 All ER 833 : (2000) 2 AC 190 : (1999) 2 WLR
518 (HL).
11
Ibid .
12
(1999) 3 All ER 897 (HL).
13
(2008) 4 All ER 1039 (C.A.).
14
Fookes v. Slaytor , (1979) 1 All ER 137 : (1978) 1 WLR 1293 : (1979) RTR 40 (CA).
15
Hawkins v. Ian Ross (Castings) Ltd ., (1970) 1 All ER 180.

16
Richardson v. Stephenson Clarke Ltd ., (1969) 1 WLR 1695.

17
WEIR, Case Book on Tort (5th edition), p. 205; Davies v. Swan Motor Co. (Swansea) Ltd ., (1949) 2 KB
291 : (1949) 1 All ER 620 (DENNING, L.J.). See further, The Miraflores and the Abadesa, (1967) 1 AC 826
(HL), p. 846 : (1967) 2 WLR 806; Fitzgerald v. Lane , (1987) 2 All ER 455 (CA).
Page 145 of 159
18
Abdul Qayum v. Fariuddin Mirza , (1950) ALJ 60.

19
Alliance and Liecester Building Society v. Edgestop , (1994) 2 All ER 38 : (1993) 1 WLR 1462; Standard
Chartered Bank v. Pakistan National Shipping Corp ., (2003) 1 All ER 173 (HL).
20
Corporation Nacional del Cobrede Chile v. Sogermin Metals Ltd. , (1997) 2 All ER 917.
21
A.B. Marintrans v. Comet Shipping Co. Ltd ., (1985) 3 All ER 442 : (1985) 3 All ER 442.
22
Lynch v. Nurdin, (1841) 1 QB 29 : 5 Jur 797 : 55 RR 191.

23
See Title 3(E) ‘children’ (p. 533), Ante, in the context of occupier's liability. See further title 11 Chap. III, pp.
69-71.
24
Gough v. Thorne, (1966) 1 WLR 1387, p. 1391 : (1966) 3 All ER 398; Amul Ramchandra Gandhi v. Abbas
Bhai Kasambhai Diwan , AIR 1979 Guj 14 [LNIND 1978 GUJ 16]; Punjab Roadways Hoshiarpur v. Satya
Devi (Smt.) , AIR 1993 HP 23 [LNIND 1992 HP 16] p. 27; M.P. State Road Transport Corporation v. Abdul
Rahman , AIR 1997 MP 248 [LNIND 1997 MP 5], pp. 250-252. See further title 11, Chap. III, pp. 69-71.
25
M. & S. M. Railway Co. Ltd. v. Jayammal , (1924) ILR 48 Mad 417.

26
R. Srinivasa v. K.M. Parsivamurthy , AIR 1976 Karnataka 92 [LNIND 1975 KANT 149]. See further Delhi
Transport Corporation v. Kumari Lalita , AIR 1982 Delhi 558 [LNIND 1982 DEL 123].
27
Motias Costa v. Roque Augustinho Jacinto , AIR 1976 Goa 1 ; Muthusamy v. SAR Annamalai , AIR 1990
Mad 201 [LNIND 1989 MAD 132].
28
M.P. State Road Transport Corporation v. Abdul Rahman, supra.

29
Yachuk v. Oliver Blais, (1949) AC 386 : (1949) 2 All ER 150 : 65 TLR 300.
30
Directors, etc. of North Eastern Ry. Co. v. Wanless , (1874) LR 7 HL 12; Chaplain v. Hawes , (1828) 3 C &
P 554; Ketch Frances (Owners) v. Steamship Highland Loch (Owners), (1912) AC 312. See title 1(C) IV,
‘Intervening acts or events; Novus Act us Interveniens’ Chapter IX, p. 194.
31
Clayards v. Dethick, (1848) 12 QB 439 : 76 RR 305.

Page 146 of 159
32
Jones v. Boyce , (1816) 1 Stark 493, 495 : 18 RR 212.

33
Stokes v. Saltonstalt , 13 Peters 181.

34
Eckert v. Long Island Railroad Co ., 43 NY 502.

35
Haynes v. Harwood, (1935) 1 KB 146, 157 : 152 LT 121 : 78 SJ 801.

36
Scaramanga v. Stamp, (1880) 5 CPD 295, 304.

37
Haynes v. Harwood, (1935) 1 CB 146, p. 165 : 152 LT 121 : 78 SJ 801.

38
Ridley v. Mobile, etc., Ry. Co ., (1905) 86 SW Rep. 606.

39
Brandon v. Osborne Garett & Co ., (1924) 1 KB 548; Morgan v. Aylen , (1942) 1 All : ER 489.
40
Haynes v. Harwood, (1935) 1 KB 146 : 152 LT 121 : 78 SJ 801.

41
FLEMING, Torts 6th edition, p. 261.
42
Mallet v. Dunn, (1949) 2 KB 180 : 65 TLR 207 : (1949) 1 All ER 973.

43
Berril v. Road Haulage Executive , (1952) 2 Lloyd's Rep. 490.

44
PER MAULE, J., in Thorogood v. Bryan, (1849) 8 CB 115, 131; Armstrong v. Lancashire Yorkshire Ry. Co
., (1875) LR 10 Ex 47.
45
(1888) 13 App Cas 1 : 58 LT 423 : 52 JP 212. See The Drumlanrig, (1911) AC 16.
46
Mathews v. London Street Tramways Co ., (1888) 58 LJQB 12.

47
Union of India v. United Insurance Co. Ltd., AIR 1998 SC 640, pp. 645, 646.
48
Page 147 of 159
S.S. Devonshire v. Barge Leslie, (1912) AC 634.

49
Mills v. Armstrong, “The Bernina “, (1888) 13 App Cas 1; The Harvest Home , (1904) p. 409.
50
Rigby v. Hewitt , (1850) 5 Ex 240, 243.

51
Waite v. N. E. Ry ., (1859) EB & E 728.

52
(1888) 13 App Cas 1 : 58 LT 423 : 52 JP 212.

53
Oliver v. Birmingham, and Midland Motor Ominbus Co ., (1933) 1 KB 35 : 147 LT 317 : 58 TLR 540, holding
that Waite's case has been overruled by Mills v. Armstrong .
54
Narayan Jetha v. The Municipal Commissioner and the Municipal Corporation of Bombay , (1891) ILR 16
Bom 254.
55
See further New Forms of the Tort of Breach of Statutory Duties, Law Quarterly Review , (2004) April, p.
324.
56
Gaekwar Sarkar of Baroda v. Gandhi Kachra Bai , (1903) ILR 27 Bom 344 (PC); East Fremantle
Corporation v. Annois, (1902) AC 213 : 85 LT 732: 18 TLR 199.
57
Lochgelly Iron and Coal Co. v. M'Mullan, (1934) AC 1, 23 : 149 LT 526 : 49 TLR 566.
58
Provender Millers (Winchester) Ltd. v. Southampton C.C ., (1940) 1 Ch 131, 140 : (1939) 4 All ER 157.
59
Manley v. St. Helen's Canal & Ry. Co ., (1885) 2 H & N 840; Ponuswamy v. The Collector of Madura ,
(1863) 3 MHC 35, A suit for compensation for wrongful seizure of cattle will lie, the provisions of Act I of
1871 being no bar to such a suit; Shatrughan Das Coomar v. Hokna Shawtal , (1889) ILR 16 Cal 159;
Dullabhji v. G.I.P. Rly , (1909) 12 Bom LR 73. Where a municipality permitted a latrine to be erected by the
defendant at a particular spot, which was likely to be a great nuisance to the plaintiff, the Court granted an
injunction restraining the defendant from using the spot in question for the purposes of a latrine; Rama Rao
v. Martha Sequeira, (1919) 37 MLJ 224 [LNIND 1919 MAD 59] ; Kailas S. Works v. Municipality , (1968) 70
Bom LR 554.
60
X (minors) v. Bedfordshire County Council , (1995) 3 All ER 353 (HL) pp. 362, 367 : (1995) 2 AC 633 :
(1995) 3 WLR 152.
61
Page 148 of 159
Ibid . See further text and note 79, 80, p. 601, infra .
62
Jain v. Trent Health Authority, (2009) 1 All ER 987 (H.L.)

63
Cowley v. Newmarket Local Board, (1892) AC 345; Sydney Municipal Council v. Bourke, (1895) AC 344.
64
Gorris v. Scott , (1874) LR 9 Ex 125; Secretary of State for India v. Muthuveerama Reddy , (1910) ILR 34
Mad 82.
65
See page 491 to 494.

66
Pramod Malhotra v. Union of India, (2004) 3 SCC 415 [LNIND 2004 SC 1543], p. 428 (para 26) : AIR 2004
SC 3338.
67
Wheeler v. New Merton Board Mills Ltd ., (1933) 2 KB 669 : 49 TLR 574 : 149 LT 587; Buddeley v.
Granville (Earl), (1887) 19 QBD 423.
68
Caswell v. Powell Duffryn Associated Collieries Ltd ., (1940) AC 152 : (1939) 2 All ER 722; Sparks v.
Edward Ash Ltd ., (1943) 1 KB 223 : (1943) 1 All ER 1.
69
Caswell v. Powell Duffryn Associated Collieries Ld., Supra .

70
American Express Co. v. British Airways Board , (1983) 1 All ER 557, p. 563 : (1983) 1 WLR 701; Trustees
Port of Bombay v. Premier Automobiles , AIR 1981 SC 1982, p. 1986.
71
PER WILLES J., in The Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CBNS 336.
72
Atkinson v. Newcastle Waterworks Co ., (1877) 2 Ex D 441; per VAUGHAN-WILLIAMS, L.J., in Groves v.

Wimborne (Lord) (1898) 2 QB 402, 416; per LORD MACNAGHTEN in Johnstone & Toronto Type Foundry
Co. v. Consumers’ Gas Co. Toronto, (1898) AC 447, 454.
73
G.P. SINGH, Principles of Statutory Interpretation (12th edition), pp. 763-772.
74
Doe d. Bishop of Roshester v. Bridges , (1831) 109 ER 1001; Pasmore v. Oswaldwistle Urban District
Council, (1898) AC 387 (HL); Cutler v. Wandsworth Stadium Ltd ., (1949) 1 All ER 544 : (1949) AC 398 : 65
TLR 170 (HL); Ten Chye Choo v. Chang Kew Moi , (1970) 1 All ER 266 : 113 SJ 1000 : (1970) 1 WLR 147
(PC); Lourho Ltd. Lourho Ltd. v. Shell Petroleum Co. Ltd ., (1981) 2 All ER 456 : (1982) AC 173 : (1981) 3
WLR 33 (HL).
Page 149 of 159
75
Lourho Ltd. v. Shell Petroleum Co. Ltd ., Supra, p. 461. The matter is essentially one of true intention of the
Act and in even in cases where the provision is for protection of a class of persons a right to sue for
damages may not be intended; Regina v. Deputy Governor of Parkhurst Prison, (1991) 3 WLR 340 : (1992)
1 AC 58 (HL); Scally v. Southern Health and Social Services Board , (1991) 4 All ER 563 (1992) 1 AC 294 :
(1991) 3 WLR 778 (HL).
76
Cutler v. Wandsworth Stadium Ltd. Supra, p. 551.

77
Grover v. Lord Wimborner, (1898) 2 QB 402 : 47 WR 87 : 14 TLR 493.

78
Black v. Fife Coal Co. Ltd ., (1912) AC 149 (HL).

79
X (minors) v. Bedfordshire County Council , (1995) 3 All ER 353 (HL) p. 363.

80
Ibid.
81
Ibid pp. 362, 367.

82
Ibid, pp. 364 , 365.

83
Ibid. Followed in Cullen v. Chief Constable of Royal Ulster Constabulary , (2004) 2 All ER 237 (HL) which
related to breach of a duty to allow a person in custody access to a solicitor which did not prolong or
otherwise affect his detention or trial. It was held that mere breach of this public law right did not confer a
right in private law for damages.
84
(2000) 4 All ER 504 (HL).
85
Carty v. Croydon London Borough Council , (2005) 2 All ER 517 (HL).

86
(1997) 3 All ER 23 (HL).
87
Ibid. p. 26.
88
(1999) 3 All ER 193 (HL).
89
Ibid. pp. 205, 210. see further S. v. Gloucestershire County Council , (2000) 3 All ER 346 (CA).
Page 150 of 159
90
(2003) 4 All ER 833 (PC).
91
Boyle v. Kodak Ltd ., (1969) 2 All ER 439 : (1969) 1 WLR 661 : 113 SJ 382.
92
Gorris v. Scott , (1874) LR 9 Ex 125; Ward v. Hobbs , (1878) 4 App Cas 13 : 27 WR 114. See Hubli
Municipality v. Ralli Bros ., (1911) 13 Bom LR 1138 [LNIND 1911 BOM 91] : ILR 35 Bom 492; Jeet Kumari
Poddar v. The Chittagong Engineering and Electric Supply Co. Ltd ., ILR (1946) 2 Cal 433 .
93
Grand Trunk Railway v. Mc Alpine, (1913) AC 838.

94
Punjab State Electricity Board v. Zora Singh, (2005) 6 SCC 776 [LNIND 2005 SC 609].
95
Williams v. G.W. Ry. Co ., (1874) LR 9 Ex 157. See title (3)(G), p. 498, supra .
96
Atkinson v. Newscastle Waterworks , (1877) 2 Ex D-441.

97
Mohanlal v. Ahmedabad Municipality , (1937) 40 Bom LR 552.

98
Vithaldas v. Municipal Commissioner of Bombay , (1902) 4 Bom LR 914. See Dholka Town Municipality v.
Desaibhai , (1913) 15 Bom LR 1034 [LNIND 1913 BOM 113] : ILR 38 Bom 116.
1
H.H. the Gaekwar v. Katcharabhai , (1900) 2 Bom LR 357 : ILR 25 Bom 243, on appeal (1903) 5 Bom LR
405 : ILR 27 Bom 344 : 30 IA 60.
2
Dumphy v. Montreal Light, etc. Co ., (1907) AC 454.

3
Hawthorn Corporation v. Kannuluik, (1906) AC 105.

4
(1987) 2 All ER 878 : (1987) AC 906 : (1987) 3 WLR 212 (HL).

5
Ibid , p. 887.
6
Ibid , p. 880.
7
Page 151 of 159
Ibid.
8
White v. Chief Constable , (1999) 1 All ER 1, p. 49 (HL).

9
Ibid.
10
Czatyrko v. Edith Cowan University , (2005) 79 ALJR 839.

11
Ibid , pp. 842, 843 (para 12).

12
Waters v. Commr. of Police of the Metropolis , (2000) 4 All ER 934 (HL).

13
Ibid.
14
Hutton v. Sutherland , (2002) 2 All ER 1 (CA); Barber v. Somerset County Council , (2004) 2 All ER 385
(HL).
15
Koehler v. Cerebos (Australia) Ltd. , (2005) 79 ALJR 845, p. 851.

16
Wilson v. Merry , (1868) LR 1 HL (SC) & Div 326, 332.

17
Per LORD HERSCHELL in Smith v. Baker & Sons, (1891) AC 325 : 65 LT 467 : 40 WR 392. See South
Indian Industrials Ltd. v. Alamelu Ammal , (1923) 17 MLW 495 : (1923) MWN 344; Dhanal Soorma v.
Rangoon Indian Telegraph Association Ltd ., (1935) ILR 13 Ran 369.
18
Heaven v. Pender, (1883) 11 QBD 503 : 49 LT 357.

19
Baker v. James, (1921) 2 KB 674. SCRUTTON, L.J. says that this decision is exactly opposite of that in
Priestly v. Fowler , (1837) 3 M & W 1; Fanton v. Denville, (1932) 2 KB 309, 316 : 147 LT 243 : 48 TLR 433.
20
Withers v. Perry Chain Company Ltd ., (1961) 3 All ER 676 : (1961) 1 WLR 1314 : 105 SJ 648.
21
Brydon v. Stewart, (1855) 2 Macq 30 ; Paterson v. Wallace, (1854) 1 Macq 748.

22
Williams v. Clough , (1858) 3 H & N 258; Cole v. De Trafford , (No. 2) (1918) 2 KB 523.
Page 152 of 159
23
Madhya Pradesh Road Transport Corporation v. Basantibai, 1971 ACJ 328 (MP) see text and note 66, p.
484, supra .
24
Deyong v. Shenburn, (1946) 1 KB 227.

25
Reid v. Rush & Tompkins Groupple , (1989) 3 All ER 228 : (1990) 1 WLR 212 (CA).
26
Johnson v. Unisys Ltd. , (2001) 2 All ER 801 (HL).

27
Smith v. Baker & Sons, (1891) AC 325 : 60 WR 661; Williams v. Birmingham Battery & Metal Co ., (1899) 2
QB 338; Cole v. De Trafford (No. 2), (1918) 2 KB 523; Monaghan v. Rhodes & Son, (1920) 1 KB 487;
Baker v. James, supra .
28
Ormond v. Holland , (1858) El Bl & El 102; Ashworth v. Stanwix , (1861) 3 El & El 701.
29
See title 2(A)(ii) Doctrine of Common Employment, Chapter VIII.

30
Marshall v. Gotham Co. Ltd ., (1954) 1 All ER 937 : (1954) AC 360 : (1954) 2 WLR 812 (HL); Mailer v.
Austin Rover Group Plc , (1989) 2 All ER 1087 : (1990) 1 AC 619 : (1989) 3 WLR 520 (HL).
31
Spencer-Franks v. Kellogg Brown and Root Ltd., (2009) 1 All ER 269 (H.L.)
32
See text and notes 14 to 16, p. 593, supra .

33
Williams v. Clough , (1838) 3 H & N 258.

34
Davies v. England , (1864) 33 LJ QB 321; Mellors v. Shaw , (1861) 1 B & S 437 : 30 LJ QB 333; Williams v.
Birmingham Battery and Metal Company, (1899) 2 QB 338.
35
Paris v. Stepney Borough Council, (1951) AC 367 : (1951) 1 TLR 25 : 94 SJ 837 : (1951) 1 All ER 42.
36
General Cleaning Contractors v. Christmas , (1952) 2 All ER 1110 : (1953) AC 180 : 97 SJ 7 : (1953) 2
WLR 6.
37
Harris v. Brights Asphalt Contractors Ld ., (1953) QB 617 : (1953) 1 QB 617 : (1953) 1 WLR 341.
Page 153 of 159
38
Lewis v. High Duty Alloys Ltd ., (1957) 1 ALL ER 740 : (1957) 1 WLR 632.
39
Lovelidge v. Anselm Oldling & Sons , (1967) 1 All ER 459.

40
Bailey v. Ayr Engineering and Constructional Co. Ltd ., (1958) 2 All ER 222 : (1959) 1 QB 183.
41
Staton v. National Coal Board , (1957) 2 All ER 667 : (1957) 1 WLR 893 : 101 SJ 592.
42
Jones v. Staveley Iron and Chemical Co. Ltd ., (1955) 1 QB 474 : (1956) AC 627 : (1956) 2 WLR 479.
43
Smith v. Austin Lifts Ltd ., (1959) 1 All ER 81 : (1959) 1 WLR 100 : 103 SJ 73.
44
Mason v. Williams Ltd ., (1955) 1 All ER 808 : (1955) 1 WLR 549 : 99 SJ 338. See further text and notes
47 to 50, pp. 610, 611.
45
O'Reilly v. Nat Rail & Tramway , (1966) 1 All ER 499.

46
Hudson v. Ridge Manufacturing Co. Ltd ., (1957) 2 QB 348 : (1957) 2 WLR 948 : 101 SJ 409 : (1957) 2 All
ER 229.
47
Wilson v. Tyneside Window Cleaning Co ., (1958) 2 QB 110 : (1958) 2 WLR 900 : 102 SJ 380 : (1958) 2 All
ER 265.
48
Davie v. New Merton Board Mills Ltd ., (1959) AC 604 : (1959) 2 WLR 331. In Sumner v. William
Henderson & Sons. Ltd ., (1963) 1 All ER 408 : (1964) 1 QB 450 : (1963) 2 WLR 330 it was held that where
the business of a store continued while the work of modernisation was being carried on by a competent
contractor the owner of the store would be liable to the employees for the injuries caused by the negligence
of the contractor.
49
Taylor v. Rover Co. Ltd ., (1966) 2 All ER 181 : (1966) 1 WLR 1491.
50
See cases in note 43, p. 609 and notes 46, 47 above.

51
Cottman v. Bibby Tankers Ltd., The Derby shire , (1987) 3 All ER 1068 (HL).
52
Page 154 of 159
Knowles v. Liverpool City Council , (1993) 4 All ER 321 : (1993) 1 WLR 1428 (HL).
53
Qualcast Ltd. v. Haynes , (1959) 2 All ER 38 : (1959) AC 743 : (1959) 2 WLR 510. Merely because it is
established that some of the employers in the trade followed a practice which might have averted the
accident this does not establish conclusively the negligence of the employer who did not follow the practice
: Brown v. Rolls Royce Ltd ., (1960) 1 All ER 577 : (1960) 1 WLR 210. In Cummings (or Mcwilliams) v. Sir
William Arrol & Co. Ltd ., (1962) 1 All ER 623 : (1962) 1 WLR 295 : 1962 SLT 121, the dictum of LORD
RADCLIFFE in Qualcast Ltd v. Haynes , was applied and it was held that even though the employer had
failed to provide a safety belt as required by statute they were not liable as it was proved that the deceased
workman who was experienced would not have worn the safty belt even if provided. See also Wigley v.
British Vinegars Ltd ., (1962) 3 All ER 161 : (1962) 3 WLR 731 : (1964) AC 307. See further text and notes
4 and 5, p. 185, Chapter IX.
54
Hammack v. White, (1862) 11 CBNS 588 : 31 LJCP 129; Manzoni v. Douglas, (1880) 6 QBD 145;
McKenzie v. Chilliwack Corporation ; (1812) AC 888; Cole v. De Trafford (No.2), (1918) 2 KB 523; Kali
Krishna Narain v. The Municipal Board, Lucknow, (1942) QBD 773.
55
Heaven v. Pender, (1883) 11 QBD 503 : 49 LT 357; Toomey v. London, Brighton and South Coast Ry. Co .,
(1857) 3 CB NS 146.
56

57
Watt v. Thomas, (1947) AC 484 p. 487; Pickford v. Imperial Chemical Industries , (1998) 3 All ER 463 (HL),
p. 472.
58
Pickford v. Imperial Chemical Industries , supra , pp. 473, 474.

59
Dekhari Tea Co. Ltd v. Assam Bengal Ry. Co. Ltd ., (1919) ILR 47 Cal 6.
60
Liladhar v. Harilal , (1936) 39 Bom LR 44; Kundan Kaur v. Shankar Singh , AIR 1966 Punj 394 .
61
Vidya Devi v. M.P. State Road Transport Corporation, 1974 ACJ 374 (MP) (376); Piara Singh v. Gian Kaur,
1985 ACJ 758; M/s. Sachdeo Rice Mills v. Smt. Raj Anand , AIR 1988 P & H 136.
62
Champalal v. Venkataraman , AIR 1966 Mad 466 [LNIND 1966 MAD 10].
63
Ram Peary v. Jai Prakash , AIR 1963 Pat 316 .

64
Page 155 of 159
Dublin W. & W. Ry. Co. v. Slattery , (1878) 3 App Cas 1155 (1169); Wakelin v. L. and S. W. Ry. Co .,
(1886) 12 App Cas 41; Koegler v. A. Yule & Co ., (1870) 14 WR (OCJ) 45; Woodhouse v. C.& S.E.Ry. Co .,
(1868) 9 WR (Eng) 73.
65
Palghat Coimbatore Transport Co. Ltd. v. Narayanan , ILR 1939 Mad 306.
66
Roe v. Minister of Health , (1954) 2 ALL ER 131 (CA) p. 137 : (1954) 2 QB 66 : (1954) 2 WLR 915
(DENNING, L.J.) See further Baku v. Market Harborough Industrial Co-operative Society, (1953) 1 WLR
1472.
67
Sushma Mitra v. M.P. State Road Transport Corporation, (1974) ACJ 87 (MP) pp. 91, 92. See further
Pagidimarri Suvarna v. Venkateshwarlu , AIR 2000 AP 332 [LNIND 2000 AP 54].
68
Scott v. The London Dock Co ., (1865) 34 LJ Ex 220 : 3 H & C 596; Byrne v. Boadle , (1863) 2 H & C 722 :
33 LJ Ex 13; McArthur v. Dominion Cartridge Co ., (1905) AC 72; Colvilles Ltd. v. Devine , (1968) 2 All ER
53; Chautmull v. The Rivers Steam Navign. Co ., (1897) ILR 24 Cal 786, on appeal, (1898) ILR 26 Cal 398
(PC); East Indian Ry. Co. v. Kirkwood , (1919) ILR 48 Cal 757, (PC); Tan Taik Hup v. The Irrawaddy Flotilla
Co. Ltd ., (1901) 7 Burma LR 236; Mulchand Nemichand v. Basdeo Ram Sarup , (1926) ILR 48 All 404; Kali
Krishna Narain v. The Municipal Board, Lucknow ; (1942) OWN 773; Kumari Alka v. Union of India , AIR
1993 Del 267 [LNIND 1993 DEL 197], p. 275.
69
Wakeman v. Robinson , (1823) 1 Bing 213.

70
North v. Smith, (1861) 10 CBNS 572.

71
Gayler and Pope Ld. v. B. Davies & Sons Ltd ., (1924) 2 KB 75 : 131 LT 507 : 40 TLR 591; Tolhausen v.
Davies, (1888) 57 LJQB 392, 394; 58 LJQB 98.
72
Manchester S.J. Rly. v. Fullerton , (1863) 11 WR 754.

73
S. Vedantacharya v. Highways Department, South Arcot, (1987) 3 SCC 400 : 1987 SCC (Cri) 559.
74
Ibid.
75
Byrne v. Boadle , (1863) 2 H & C 722 : 12 WR 279 : 133 RR 761; Scott v. London Dock Co ., (1865) 3 H &
C 596, 601. Where an accident results from defective condition of plant, the burden of disproving
negligence lies on the person responsible for the defect; Coughlan v. Monks, (1918) 2 IR 306.
76
Page 156 of 159
Schellenberg v. Tunnel Holdings PTY Ltd. , (2000) 74 ALJR 743, pp. 756, 757. See further p. 760 (KIRBY
J).
77
Fantaine v. British Columbia (Official Administrator), (1998) 1 SCR 424, p. 435 (MAJOR J. for the court).
78
Syad Akbar v. State of Karnatak , AIR 1979 SC 1848 (1852); Mohammed Aynuddin v. State of Andhra
Pradesh , AIR 2000 SC 2511, p. 2512 : (2000) 7 SCC 72 [LNIND 2000 SC 1014]. See further Klaus
Mittelbachert v. The East India Hotels Ltd. , AIR 1997 Del 201 [LNIND 1997 DEL 27], p. 215.
79
Municipal Corporation of Delhi v. Subhagwanti , AIR 1966 SC 1750 : (1966) 3 SCR 649 [LNIND 1966 SC
62].
80
Gobald Motor Service v. Veluswamy , AIR 1962 SC 1 : (1962) 1 SCR 929 [LNIND 1961 SC 176].
81
Krishna Bus Service v. Mangali , AIR 1976 SC 700.

82
Pushpabai v. Ranjit, G. & P. Co. , AIR (1977) SC 1735.

83
Shyam Sunder v. State of Rajasthan, AIR, 1974 SC 890. See further Basthi Kasim Sahib v. The Mysore
State Road Transport Corporation , AIR 1991 SC 487 (overturning of bus while crossing a bullock cart
parked on the road).
84
Narasappa v. Kamalamma , AIR 1968 Mys 345, 349.

85
Llloyde v. West Midlands, (1971) 1 WLR 749 (CA).

86
PER PICKFORD, L.J., in Cole v. De Trafford (No. 2), (1918) 2 KB 523, 528; Alimuddin v. King-Emperor ,
ILR 1945 Nag 566; GNIT & State v. Dinkar Joshi, (1955) 4 MLR 489 : ILR 1955 MB 306.
87
Ahmedabad Municipality v. Shantilal , AIR 1961 Guj 196 [LNIND 1960 GUJ 95].
88
Sushma Mitra v. M.P. State Road Transport Corporation, (1974) ACJ 87 (MP), pp. 91, 92. See further text
and notes 64 to 66, p. 613.
89
See the judgment of DENMAN, J. in Manzoni v. Douglas, (1880) 6 QBD 145.

90
Page 157 of 159
State of Punjab v. M/s. Modern Cultivators, (1964) 2 SCJ 796 : (1971) 1 WLR 749 : 115 SJ 227; Mangilal v.
Parasram , AIR 1971 MP 5 [LNIND 1969 MP 82] (FB).
91
PER MEGAW, J. in Lloyde v. West Midland Gas Board , (1971) 2 All ER 1240 : (1997) 1 WLR 749 : 115 SJ
227.
92
Swarnalata v. Jogendrapal , AIR 1970 MP 86 [LNIND 1969 MP 41]; Parmeshwari v. Saman Devi , AIR
1960 PB 1007 ; Managing Director Thanthai Periyar Transport Corporation v. Meerabai Ammal , AIR 1988
Mad 163 [LNIND 1987 MAD 208]; State of M.P. v. Ashadevi , AIR 1989 MP 93 [LNIND 1988 MP 212]. For
other motor accident cases see notes 79, 80, p. 615.
93
Mangilal v. Parasram , AIR 1971 MP 5 [LNIND 1969 MP 82] (FB).

94
Kusuma Begum (Smt.) v. New India Assurance Co. Ltd., (2001) 1 JT 375 : AIR 2001 SC 485. See pp. 612,
613, supra .
1
Woods v. Duncan, (1946) AC 401 : 147 LT 286 : 62 TLR 283.

2
Syad Akbar v. State of Karnataka , AIR 1979 SC 1848 (1853) : (1980) 1 SCC 30 [LNIND 1979 SC 297] ;
Colvilles Ltd. v. Davine , (1969) 2 All ER 53 (HL) pp. 57, 58.
3
Cholan Roadways Ltd. v. G. Thirugnanasambadam, (2005) 3 SCC 241 [LNIND 2004 SC 1269], pp. 249 to
251 : AIR 2005 SC 570.
4
Backway v. South Wales Transport Co. Ltd ., (1950) 1 All ER 392; Henderson v. Henry E. Jenkins , (1969)
3 All ER 756 : (1970) 1 WLR 147 : 113 SJ 1000 (HL). See also Tan Chye Coo v. Chang Kew Moi , (1970) 1
All ER 266 : (1970) AC 282 (PC).
5
Macfarlane v. Thompson , (1884) 22 Sc LR 179, followed in Cates v. Mongini Bros ., (1917) 19 Bom LR
778 [LNIND 1917 BOM 74].
6
Walker v. Oslen , (1882) 9 R (Ct. of Sess) 946, followed in Cates v. Mongini Bros., supra .
7
Pearce v. Round Oak Steel Works , (1969) 3 All ER 680.

8
Mewa Devi (Smt.) v. M/s Ram Parkash Rajinder Paul , AIR 1990 HP 53 [LNIND 1989 HP 59].
9
Page 158 of 159
Indian Airlines v. Madhuri Chowdhuri , AIR 1965 Cal 252 [LNIND 1964 CAL 98].
10
Lloyd v. Ogleby, (1859) 5 CBNS 667.

11
Cotton v. Wood, (1860) 8 CBNS 568.

12
Crisp v. Thomas, (1891) 63 LT 756. See Welfare v. London & Brighton Ry. Co ., (1869) LR 4 QB 693,
where a zinc roll fell on a person while he was looking at a time-table on a railway station and it was held
that there was no evidence of negligence on the part of the defendant company.
13
Cates v. Mongini Bros ., (1917) 19 Bom LR 778 [LNIND 1917 BOM 74].
14
PER LORD HALSBURY, L.C., in Wakelin v. L. & S. W. Ry ., (1886) 12 App Cas 41, 45 : 55 LT 709. See
Drury v. N. E. Ry ., (1901) 2 KB 322. A mail train from Madras to Bombay passed a certain station and
within a minute or two afterwards it was completely wrecked by the falling of a bridge over a watercourse,
and the plaintiff's father was one of the many passengers who were then killed either by shock or by
drowning in the flood which had carried the bridge away. It was held that the onus of proving that there was
no negligence on the part of the railway company in keeping proper watch over the bridge lay on the
company : Madras Ry. Co. v. Ratilal Kalidas, (1905) 4 MLT 251.
15
Easson v. London & North Eastern Ry. Co. , (1944) 2 All ER 425.
16
Khedut Oil Cake Industries (M/s.) v. Union of India , AIR 1988 Del 88 [LNIND 1987 DEL 165].
17
Mulchand Nemi Chand v. Basdeo Ram Sarup , (1926) ILR 48 All 404.
18
Rampeary v. Jai Prakash , AIR 1963 Pat 316 .

19
State of Punjab v. Modern Cultivators (M/s.), (1964) 2 SCJ 796 : AIR 1965 SC 17.
20
Swan v. Salisbury Construction Co. Ltd ., (1966) 2 All ER 138 : (1966) 1 WLR 204 : 109 SJ 195.
21
Balakrishnan v. Subramanian , AIR 1968 Ker 151 .

22
On the question of reasonableness of a contractual term see Harris v. Wyre Forest District Council , (1988)
1 All ER 691 : (1988) QB 835 : (1986) 2 WLR 1173 (CA); on the question of reasonableness of a notice,
see Smith v. Erich S. Bush (a firm), (1989) 2 All ER 514 : (1990) 1 AC 831 : (1989) 2 WLR 790 (HL).
Page 159 of 159
23
See title 1 Chapter 1, pp. 2, 3.
End of Document
CHAPTER XX NUISANCE
CHAPTER XX NUISANCE
1. GENERAL
NUISANCE has been defined to be anything done to the hurt or annoyance of the lands, tenements or
hereditaments of another, and not amounting to a trespass. 1 The word “nuisance” is derived from the French word
nuire , to do hurt, or to annoy. Blackstone describes nuisance (nocumentum ) as something that “worketh hurt,
inconvenience, or damage.”
A nuisance may be caused by negligence, and there may be cases in which the same act or omission will support
an action of either kind, but, generally speaking, these two classes of actions are distinct, and the evidence
necessary to support them is different. 2 Nuisance is no branch of the law of negligence, and it is no defence that
all reasonable care to prevent it is taken. 3
Where undertakers act under a mandatory obligation (e.g. statutory obligation) whether or not there is a saving
clause not exempting them from liability in nuisance, there is no liability in nuisance if what has been done is that
which was expressly required to be done, or was reasonably incidental thereto. 4 There is a distinction in this
context between statutory obligation or duty and statutory power which is permissive in nature. In case of the
former, there is immunity from an action based on nuisance but in case of the latter, there is no immunity and power
must be exercised in strict conformity with private rights; but even in the former case there will be no immunity if the
power is negligently exercised. 5 It is also obvious that there will be no immunity in either of the cases when the
action taken is ultra vires the statute. 6
Nuisance is of two kinds: (a) Public, general, or common, and (b) Private.
2. PUBLIC OR COMMON NUISANCE
A person is guilty of a public nuisance who does any act, or is guilty of an illegal omission, which causes any
common injury, danger or annoyance, to the public or to the people in general who dwell, or occupy property, in the
vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right. [See, Penal Code, s. 268 .]
Public nuisance is an act affecting the public at large, or some considerable portion of it; and it must interfere with
rights which members of the community might otherwise enjoy. Acts which seriously interfere with the health,
safety, comfort or convenience of the public generally or which tend to degrade public morals have always been
considered public nuisance, e.g. carrying on trades which cause offensive smells, 7 or intolerable noises, 8
keeping an inflammable substance like gunpowder in large quantities; 9 drawing water in a can from a filthy source.
10 They are dealt with by, or in the name of, the State.
Page 2 of 27
CHAPTER XX NUISANCE
Public nuisance can only be the subject of one action, otherwise a party might be ruined by a million suits. It
depends in a great measure upon the number of houses and the concourse of people in the vicinity. An indictment
will fail if the nuisance complained of only affects one or a few individuals. Again, no length of time can legalize a
public nuisance, though it may supply a defence to an action by a private person. 11
Public nuisance does not create a civil cause of action for any person. In order that an individual may have a private
right of action in respect of a public nuisance—
(1) He must show a particular injury to himself beyond that which is suffered by the rest of public. If the alleged
nuisance is, for instance, the obstruction of a highway, it is not enough for him to show that he suffers the
same inconvenience in the use of the highway as other people do. 12 He must show that he has suffered
some damage more than what the general body of the public had to suffer. 13
(2) Such injury must be direct, and not a mere consequential injury; as, where one way is obstructed, but
another is left open. In such a case the private and particular injury is not sufficiently direct to give a cause
of action.
(3) The injury must be shown to be of a substantial character, not fleeting or evanescent. 14
Thus, in order to entitle a person to maintain an action for damage caused by that which is a public nuisance, the
damage must be particular, direct and substantial. 15 The object of this rule is to avoid multiplicity of litigation.
In India under section 91 of the Civil Procedure Code, in the case of a public nuisance the Advocate-General, or
two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit though no
special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate in
the circumstances of the case.16
Ringing of bells. —The plaintiff resided in a house next to a Roman Catholic Chapel of which the defendant was the
priest and the chapel bell was rung at all hours of the day and night. It was held that the ringing was a public
nuisance and the plaintiff was held entitled to an injunction. 17
Smoke and noise of cotton mills.— The plaintiffs were owners of a building containing a large number of rooms and
had derived a considerable income by letting them. The defendants were owners of an adjacent cotton mill which
was erected after the occupation by the plaintiffs of their building. Owing to the noise and smoke of the mill certain
rooms in the building remained unlet. In an action against the defendants, the plaintiffs obtained compensation and
an injunction prohibiting any increase of smoke, cotton-fluff, or noise of machinery, beyond what subsisted at the
time of the decree. 18
Obstruction of view. —The plaintiff was in possession of a house in London from the windows of which there was
an uninterrupted view of part of a certain main thoroughfare along which it was announced that the funeral
procession of King Edward VII was to pass. One G agreed to take and pay for seats on the first and second floors
of the house in order to see the procession. The defendants caused a stand to be erected across a certain highway
to enable the members of the Council and their friends to view the procession. This stand was a public nuisance,
and it obstructed the view of the main thoroughfare from the windows of the first floor of the plaintiff's house. G,
when he saw the stand in process of erection, asked to be released from his contract as to the seats on the first
floor, and the plaintiff, thinking it would be unfair to hold him bound, released him. Several other persons refrained
from taking seats owing to the obstruction. In an action by the plaintiff to recover damages for the wrongful
interference with the use and enjoyment of her house and the special loss she had sustained, it was held that she
was entitled to recover as damages the profit which but for the defendants’ act she might have made by letting
seats. 19
Falling of glass from window. —The plaintiff, while walking on the highway was injured on a Tuesday by glass
falling from a window in an unoccupied house belonging to the defendant, the window having been broken in an air-
raid during the previous Friday night. Owing to the fact that the offices of the defendant's agents were shut on the
Saturday and the Sunday and to the difficulty of getting labour during the week-end, no steps to remedy the risk to
passers-by had been taken until the Monday. The owner had no actual knowledge of the state of the premises. It
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was held that the defendant must be presumed to have knowledge of the existence of the nuisance, that he had
failed to take reasonable steps to bring it to an end although he had ample time to do so, and that, therefore, he
had “continued” it and was liable to the plaintiff. 20
Obstruction by formation of queue.— The defendant, a shopkeeper, had a licence to sell vegetables and fruits. At a
time when there was a scarcity of potatoes, he sold only 1 lb. per ration book. Queues of customers at the
defendant's shop formed which, at time, extended on the highway in front of the neighbouring shops. In an action
by the keepers of those shops against the defendant, the Judge found that neither nuisance nor damage to the
plaintiffs had been proved. It was held also that even if a nuisance had been established, since the defendant in
distributing food essential for the public, had been carrying on his business in a normal and proper way, without
doing anything unreasonable or unnecessary, the defendant could not be said to have created and so to be
responsible for the nuisance; the queues at the time were due to the short supply of potatoes. 21
Dust and vibration from quarry.— Some quarry-owners conducted their operations in such a manner that personal
discomfort was caused to the neighbouring householders by vibration and by dust coming from the quarry which
settled on their houses and garden. It was held in action at the instance of the Attorney General that the nuisance
from vibration causing personal discomfort was sufficiently widespread to amount to a public nuisance and that
injunction was rightly granted against the quarry-owners restraining them from carrying on their operations in the
above manner. 22
2A. PRIVATE NUISANCE
Private nuisance is the using or authorising the use of one's property, or of anything under one's control, so as to
injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by
interfering materially with his health, comfort or convenience. 23
The essentials of nuisance thus are (1) an unlawful act; and (2) damage actual or presumed. Damage actual or
presumed is an essential element for an action on nuisance. Further, the damage must be substantial and not
merely sentimental, speculative trifling, fleeting or evanescent. 24
Private nuisances are of three kinds: (1) nuisance by encroachment on a neighbour's land; (2) nuisance by a direct
physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet enjoyment of his land
e.g. , by wrongful escape of smoke. 25 The essence of private nuisance is the same in all the three cases namely
interference with land or enjoyment of land. 26 In the case of class (1) or (2) the measure of damages is the
diminution in the value of the land and in case of class (3) loss of amenity value, if there be no diminution in market
value. 27 If the occupier of land suffers personal injury as a result of inhaling the smoke he may have a cause of
action in negligence but he will have no cause of action in nuisance for his personal injury. 28 Thus the quantum of
damages in private nuisance does not depend on the number of those enjoying the land in question. 29 It also
follows that the only persons entitled to sue for loss in amenity value as in the case of diminution in the value of the
land are the owner or the occupier with the right to exclusive possession. 30 Thus persons merely residing with the
owner but having no right in the land e.g. wife and children have no cause of action in nuisance. 31
Private nuisances include acts leading to (a) wrongful disturbances of easements or servitudes, e.g. obstruction to
light and air, disturbance of right to support; or (b) wrongful escape of deleterious substances into another's
property, such as smoke, smell, fumes, gas, noise, water, filth, heat, electricity, diseasegerms, trees, vegetation,
animals, etc. 32 “The forms of this (nuisance) are innumerable. But whatever be the type, it does not follow that
any harm constitutes a nuisance. The whole law on the subject really represents a balancing of conflicting interests.
In fact the law repeatedly recognises that a man may use his own land so as to injure another without committing a
nuisance. It is only if such use is unreasonable that it becomes unlawful. Reasonableness plays an important part in
determining whether or not there has been a nuisance.” 33
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The liability for nuisance “has been kept under control by the principle of reasonable user the principle of give and
take as between neighbouring occupiers of land, under which those acts necessary for the common and ordinary
use may be done, if conveniently done, without subjecting those who do them to action.” 34 Normal activities of
tenants of a neighbouring flat do not amount to a nuisance even though the noise from them is heard because of
inadequate sound proofing. In such a case neither the tenants nor the landlord can be held liable for nuisance. 35
Private nuisance in contrast to public nuisance is an act affecting some particular individual or individuals as
distinguished from the public at large. It cannot be made the subject of an indictment, but may be the ground of a
civil action for damages or an injunction or both.
A right to commit a private nuisance may be acquired by prescription as an easement. 36 But user which is neither
physically capable of prevention by the owner of the servient tenement, nor actionable, cannot support an
easement. This is applicable both to the affirmative and negative easements. Thus the right to make a noise so as
to annoy a neighbour cannot be supported by user unless during the period of user the noise has amounted to an
actionable nuisance. 37
In an action for nuisance it is no defence that the plaintiff himself came to the nuisance; 38 or that the act causing
nuisance is beneficial to the public; 39 or the place where the nuisance is created is the only place suitable for the
purpose; 40 or that the defendant is merely making a reasonable use of his property. 41
A person is not liable for a nuisance constituted by the state of his property unless (a) he causes it; or (b) by the
neglect of some duty he allows it to arise; or (c) when it has arisen without his own act or default, he omits to
remedy it within a reasonable time after he became or ought to have become aware of it. 42
A man may become responsible for a nuisance by erecting and working a noisy Smith's forge or workshop; 43 or a
striking tallow furnace; 44 or a privy; 45 or by making cesspool, the filth of which percolates through the soil and
contaminates the water of his neighbour's well or spring; 46 or by keeping a number of vans waiting before a shop-
door. 47
3. HIGHWAYS
If nuisance is created as a result of something which has been done by the highway authority, then liability will
arise. “The moment the structure of the road is interfered with and it comes within the ambit of the operation
commenced by the person who is entitled to interfere with the structure of the road, then, until that road is restored
into the condition in which it was before that alteration of its structure began, it seems to me the person who
interfered with it is responsible for a misfeasance.” 48 Under the Highways (Miscellaneous Provisions) Act, 1961,
the common law rule that a highway authority is not liable for non-feasance is abolished. Therefore, the distinction
between misfeasance and non-feasance by local authorities is now abrogated. The law is to be found now in the
Highways Act, 1980. In any action against a Highway Authority for its failure to maintain a highway, it is a defence
to prove that the authority had taken such care as in all the circumstances was reasonably required. 49
If a nuisance is created on a highway by a private individual liability would arise if any person is injured as a result
of what has been done irrespective of negligence. 50 If anything is placed on the highway which is likely to cause
an accident being an obstruction to those who are using the highway on their lawful occasion (such as a vehicle
unlighted and unguarded standing there at night) and an accident results, there is an actionable nuisance. 51 In
the absence of evidence to establish prima facie that a highway is dangerous to traffic and where there is no breach
of obligation on the part of the highway authority to keep the pavement which is part of the highway in repairs, users
of the highway must take account of the possibility of unevenness in the pavement. 52
A tramway company after a heavy snowstorm cleaned their track by means of a snow-plough, and thereby
increased the deposit of snow in certain portions of the street, and, in order to prevent the snow or snow-water from
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freezing in the grooves, they scattered salt upon the rails and their vicinity. The snow and salt in combination
formed a wet briny amalgam, and the slush thus formed was left to remain in the street without being removed then
and there. It was held that those acts of the tramway company amounted to an unauthorised nuisance, and that
they were responsible for it, notwithstanding the fact that the duty of removing any obstruction in the street rested
with the Town Council as the street authority. 53 A motor omnibus of the defendants, in which the plaintiff was a
passenger, “skidded” cupon a road the surface of which was greasy from rain, and ran into an electric light
standard, and the plaintiff was injured. It was assumed without dispute that motor omnibuses, however well
constructed, had a tendency to skid, when the road was greasy. It was held that there was no evidence that the
defendants’ allowing the motor omnibus to run constituted a nuisance. 54
Leaving unlighted vehicle on road at night.— A motor-cyclist at night ran into the back of a trailer which was
attached to a stationary lorry standing on the near side of a highway. The lorry and trailer were unattended and no
rear light showed from the trailer. It was held that the lorry and trailer were an obstruction on the highway, and as
such constituted an actionable nuisance. There was a dangerous obstruction in the highway and consequently
there was an absolute duty on the defendants to light it or otherwise efficiently guard it to prevent accidents. 55
Injury caused by subsistence of highway.— The defendants had made a trench in a highway for the purpose of
laying a drain. The trench was filled in, but after three years a subsidence occurred at the site of the excavation.
The plaintiff, while riding a bicycle, passed over the subsidence, and was thrown from his machine and injured. It
was found that the subsidence was the result of the work, though the work had not been done negligently. It was
held that (1) the defendants, having brought a nuisance on the highway, were liable to the plaintiff; (2) the
defendants, being under a duty to make good the inevitable subsidences resulting from the excavation were also
liable on the ground of negligence in not discovering and remedying the danger. 56
4. DISTINCTION BETWEEN INJURY TO PROPERTY AND PHYSICAL

DISCOMFORT
There is a distinction between an action for a nuisance in respect of an act producing a material injury to property,
and one brought in respect of an act producing personal discomfort . As to the latter a person must, in the interest
of the public generally, submit to the discomfort of the circumstances of the place, and the trades carried on around
him; as to the former the same rule would not apply. 57 LORD WESTBURY, L.C., observed: “In matters of this
description it appears to me that it is a very desirable thing to make the difference between an action brought for a
nuisance upon the ground that the alleged nuisance produces material injury to property, and an action brought for
a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With
regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's
personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or
may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where
the thing complained of actually occurs. If a man lives in a town, it is necessary, that he should subject himself to
the consequences of those operations of trade which may be carried on in his immediate locality, which are actually
necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of
the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened
next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to
himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation
is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or
business, is a material injury to property, then there unquestionably arises a very different consideration in a case of
that description, the submission which is required from persons living in society to that amount of discomfort which
may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to
circumstances the immediate result of which is sensible injury to the value of the property.” 58
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“Although when you once establish the fact of actual substantial damage it is quite right and legitimate to have
recourse to scientific evidence as to the causes of that damage, still if you are obliged to start with scientific
evidence, such as the microscope of the naturalist, or the tests of the chemist, for the purposes of establishing the
damage itself, that evidence will not suffice. The damage must be such as can be shown by a plain witness to a
plain common juryman.
“The damage must also be substantial, and it must be, in my view, actual; that is to say, the Court has, in dealing
with questions of this kind, no right to take into account contingent, prospective, or remote damages... The law does
not take notice of the imperceptible accretions to a river bank or to the seashore, although after the lapse of years
they become perfectly measurable and ascertainable; and if, in the course of nature, the thing itself is so
imperceptible, so slow, and so gradual as to require a great lapse of time before the results are made palpable to
the ordinary senses of mankind, the law disregards that kind of imperceptible operation. So, if it were made out that
every minute a millionth of a grain of poison were absorbed by a tree, or a millionth of a grain of dust deposited
upon a tree, that would not afford a ground for interfering, although after the lapse of a million minutes the grains of
poison or the grains of dust could be easily detected.
“It would have been wrong, as it seems to me, for this Court in the reign of Henry VI to have interfered with the
further use of sea coal in London , because it had been ascertained to their satisfaction, or predicted to their
satisfaction, that by the reign of Queen Victoria both white and red roses would have ceased to bloom in the
Temple Gardens . If some picturesque haven opens its arms to invite the commerce of the world, it is not for this
Court to forbid the embrace, although the fruit of it should be the sights and sounds, and smells of a common
seaport and ship-building town, which would drive the Dryads and their masters from their ancient solitudes.” 59
Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small
inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment
or value of the property which is affected. 60 Thus interference with television reception by erection of a tall
building like loss of visual prospect caused by a tall building is not such an interference with the use and enjoyment
of land as to constitute actionable public or private nuisance. 61
It appears that the degree of harm, in an action for personal discomfort, must be greater than in an action for injury
to property. As to the degree of discomfort which constitutes a nuisance, K NIGHT BRUCE, V. C., said in Walter v.
Selfe 62 .
“Both on principle and authority the important point next for decision may...be thus put: ought this inconvenience to
be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience
materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or
dainty modes and habits of living, but according to plain and sober and simple notions among the English people?”
5. INJURY TO PROPERTY
Any nuisance whereby sensible injury is caused to the property of another is actionable.
Trade
In considering whether any act is a nuisance, regard must be had not only to the thing done, but to the surrounding
circumstances. What would be a nuisance in one locality might not be so in another. 63 THESIGER, L.J., said: 64
“Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of
the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not
necessarily be so in Bermondsey ; and where a locality is devoted to a particular trade or manufacture carried on by
the traders or manufacturers in a particular and established manner not constituting a public nuisance,......the trade
or manufacture so carried on in that locality is not a private or actionable wrong.” Where no right by prescription
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exists to carry on a particular trade, the fact that the locality where it is carried on is one generally employed for the
purpose of that and similar trades, will not exempt the person carrying it on from liability to an action for damages in
respect of injury created by it to property in the neighbourhood. 65 The grant of the right to carry on a particular
trade does not authorize the committal of a nuisance, in the absence of proof that the trade could not be carried on
otherwise. 66
One A had bought an estate in a neighbourhood where many manufacturing works were carried on. Among others
there were works of a copper smelting company. It was not proved whether these works were in actual operation
when the estate was bought. The vapours from these works, when they were in operation, were proved to be
injurious to the trees on A's estate. It was held that A was entitled to damages. 67 The plaintiff was the owner of a
house and park which adjoined the defendants’ gas-works. Immediately adjoining the defendants’ premises was a
plantation of trees which had been planted by the paintiff to screen off the gas-works. The fumes and smoke from
the gas-works were carried by wind across the plantation and had injuriously affected the trees to such an extent
that the tops of some of the trees were dying whilst others were dead. It was held that the plaintiff was entitled to an
injunction restraining the defendants from carrying on their works so as to cause injury to the plaintiff's property. 68
Sewers, drains, etc.
The prima facie right of every occupier of a piece of land is to enjoy that land free from all invasion of filth or other
matter coming from any artificial structure on adjoining land. He may be bound by prescription or otherwise to
receive such matter. Moreover, this right of every occupier of land is an incident of possession, and does not
depend on the acts or omissions of other people; it is independent of what they may know or not know of the state
of their own property, and independent of the care or want of care which they may take of it. 69
A person cannot claim a right to foul an ordinary drain by discharging into it what it was not intended to carry off and
then throw on other persons an obligation to alter the drain in order to remedy the nuisance that he has produced;
nor can he say that any other person must meanwhile put up with such nuisance. 70
A company operating a sewerage system on a commercial basis will become liable in nuisance if the sewerage
system becomes inadequate and the plaintiff's property is flooded with surface and foul water unless the company,
in case it has a statutory authority shows that there was absence of negligence on its part; or in any other case that
it took all necessary steps to prevent the nuisance. On the above reasoning the Court of Appeal in Marcie v.
Thames Water Utilities Ltd. 71 held the defendant company a sewerage undertaker liable. But the decision was
reversed by the House of Lords 72 on the ground that under the statutory regime in the Water Industry Act, 1991 it
was for the regulator of the Water Industry to secure that the companies appointed as water undertakers properly
carried out their functions and the regulator could enforce the obligation of a sewerage undertaker by an
enforcement order, therefore a person who sustained loss or damage as a result of a sewerage undertakers
contravention of his general duty had no direct remedy under the Act. Such a person could only bring proceedings
against a sewerage undertaker in respect of his failure to comply with an enforcement order, if one had been made.
Trees
A person can bring an action for damage caused to his property by overhanging branches 73 of a tree on his
neighbour's land or by its roots which burrow under the ground. 74 In Dilaware Ltd. v. Westminister City Council,
75 the respondent was owner of a tree growing in the footpath of a highway. The roots of the tree caused cracks in
the neighbouring building. The transfree of the building, after the cracks were detected, was held entitlted to recover
reasonable remediel expenditure in respect of the entire damage from the continuing nuisance caused by the trees.
No distinction was to be drawn between trees that were planted and those that were selfsown, and it was no
defence to say that damage was caused by natural growth. 76 The owner of a tree which overhangs the
neighbour's land is not entitled to go on the latter's land in order to gather the fruits that fall there from the
overhanging branch. 77 The person aggrieved can himself cut off the overhanging branches and abate the
nuisance without entering upon the neighbour's land. No prescriptive right can be acquired to have an overhanging
tree as an old nuisance does not become by passage of time a respectable nuisance. 78
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Smoke
The second defendants owned and operated coke ovens situate 50 yards away from a road. The process of
manufacturing coke involved the production at intervals of clouds of smoke and steam which, under certain
conditions of wind and weather, passed low over the road so as to obscure the view of passengers thereon. While
one of these clouds was so passing a collision occurred between a motor-car and a motor omnibus driven by a
servant of the first defendants, both of which vehicles were travelling along the road, two passengers in the car
sustaining fatal injuries. It was found that the omnibus was being driven negligently at the time of the accident. It
was held that the discharge of smoke and steam across the road on the occasion of the accident was a nuisance
caused by the second defendants, and the second defendants were also guilty of negligence in not posting a man
at each end of the area affected to warn approaching vehicles as soon as a discharge was imminent. 79
6. PHYSICAL DISCOMFORT
Acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently
done, without subjecting those who do them to an action, e.g. , burning weeds, emptying cesspools, making noises
during repairs, and other instances which would be nuisance if done wantonly and maliciously. The convenience of
such a rule may be indicated by calling it a rule of give and take, live and let live. The above principle will not apply
if what has been done was not the using of land in a common and ordinary way, but in an exceptional manner; not
unnatural, nor unusual, but not the common and ordinary use of lands. But anything which under any circumstances
lessens the comfort or endangers the health or safety of a neighbour is not necessarily an actionable nuisance.
Whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's
enjoyment before the acts complained of, the annoyance is sufficiently great to amount to a nuisance an action will
lie whatever the locality may be. 80 Thus noise from ordinary use of neighbouring flats does not constitute
nuisance. 81
The interference with a man's comfort which will justify the intervention of the Courts must be a material
interference with an ordinary and reasonable standard of comfort, and must be considered in the light of the
circumstances of time and place. It is not necessary that the acts or state of things complained of should be noxious
in the sense of being injurious to health. Smoke, noise and offensive odours, although not injurious to health, may
constitute a nuisance. 82 It has been held that severe and recurrent interference with enjoyment of television by an
ordinary householder using an aerial on his house need not constitute an actionable nuisance. 83 Subject to
building regulatory laws a person was free to build on his land unrestricted by the fact that the presence of his
building might of itself interfere with his neighbour's enjoyment of his land. Therefore, interference with television
reception caused by the mere presence of a building was not capable of constituting an actionable private
nuisance. 84 “A man may, without being liable to an action, exercise a lawful trade as that of a butcher, brewer, or
the like, notwithstanding it be carried on so near the house of another as to be annoyance to him in rendering his
residence there less delectable or agreeable; provided the trade be so conducted that it does not cause what
amounts in point of law to nuisance to the neighbouring house. 85
Carrying on an offensive trade so as to interfere with another's health and comfort or his occupation of property is a
legal nuisance. 86
Nuisances of this class for the most part arise in respect of—
(1) Obstruction of light.
(2) Pollution of air or water.
(3) Noise.
Light.— With regard to obstruction of light, see Chapter XV, title 7(H).
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Air. —If smoke, vapour, and noisome gases are communicated to the air which surrounds and enters the plaintiff's
house, so as to cause inconvenience to the occupiers thereof, and render the house manifestly less comfortable,
the act will be a nuisance.
In India, voluntarily vitiating the atmosphere so as to make it noxious to the public health is indictable as an offence
under s. 278 of the Indian Penal Code. The Air (Prevention and Control of Pollution) Act 1981 requires scheduled
industries located anywhere in the country and any industry located within the control areas to abide by the
standards laid down by the Central or State Board and provides penalties for non-compliance. Proceedings under
the Criminal Procedure Code can also be taken for removing a public nuisance caused by Air, water, noise or
environmental pollution.87 The 1981 Air Act did not include the provision relating to control of noise pollution but by
amendment in 1987, noise present in the atmosphere has been brought within the definition of air pollutant. The
Central Pollution Control Board has laid down certain noise standards under section 16 of the Act. The Central
Government has also brought into existence the Noise Pollution (Regulation and Control) Rules, 2000 under the
Environment Protection Act, 1986 for preventing adverse impact of noise on human health including harmful
psychological and physiological effects.88
An injunction was granted to prevent a gas company from manufacturing gas in such close proximity to the
premises of the plaintiff, a market gardener, and in such a manner as to injure his garden produce by the escape of
noxious matter, 89 to prevent a company from carrying on calcining operations in any manner whereby noxious
vapours would be discharged, on the pursuer's land, so as to do damage to his plantations or estate; 90 and to
prevent a person from turning a floor underneath a residential flat into a restaurant and thereby causing a nuisance
by heat and smell to the occupier of the flat. 91
Water. —As regards nuisance from pollution of water, see Riparian Rights, Chapter XV, title 7(c).
Pollution of a public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used is a
public nuisance, and is punishable as an offence. 92
Noise . * —Quietness and freedom from noise are indispensable to the full and free enjoyment of a dwelling-house.
No proprietor has an absolute right to create noises upon his own land, because any right which the law gives is
qualified by the condition that it must not be exercised to the nuisance of his neighbours or of the public. 93
Damages were awarded to the proprietor of a hotel for the inconvenience caused by dust and noise in demolition
and building operations unreasonably carried on in the neighbourhood by the defendants. 94 As to what amount of
noise, or annoyance from noise, will be sufficient to sustain an action, there is no definite legal rule or measure. It is
a question of fact in each case, having regard to all the surrounding circumstances. The question so entirely
depends on the surrounding circumstances—the place where, the time when, the alleged nuisance, the mode of
committing it, how, and the duration of it, whether temporary or permanent, occasional or continual—as to make it
impossible to lay down any rule of law applicable to every case. 95 Noise will create an actionable nuisance only if
it materially interferes with the ordinary comfort of life, judged by ordinary, plain and simple notions, and having
regard to the locality; the question being one of degree in each case. 96 The law as stated above relating to
actionable nuisance by noise has been expressly approved by the Supreme Court. 97 The standard of judging it is
according to that of men of ordinary habits, and not of men of fastidious tastes or of over-sensitive nature, whether
due to religious sentiment or not. 98 In Colls ’ case EARL OF H ALSBURY, L.C., said: “A dweller in towns cannot
expect to have as pure air, as free from smoke, smell and noise as if he lived in the country, and distant from other
dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it
becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a
right of action.” 1
A person living in a district specially devoted to a particular trade cannot complain of any nuisance by noise caused
by the carrying on of any branch of that trade without carelessness and in a reasonable manner. A resident in such
a neighbourhood must put up with a certain amount of noise. The standard of comfort differs according to the
situation of property and the class of people who inhabit it. 2 To give a house-holder a right to an injunction against
a neighbour for carrying on a noisy business in a trade district, the noise must amount to a nuisance, regard being
had to the nature and habits of the neighbourhood and to the pre-existing noises. 3 In a locality devoted to noisy
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trades, such as the printing and allied trades, if a printing house or factory subjects the occupier of an adjoining
residence to such an increase of noise as to interfere substantially with the ordinary comfort of human existence
according to the standard of comfort prevailing in that locality, that is sufficient to constitute an actionable wrong
entitling the occupier to an injunction. 4
In considering the rights of the parties, it is immaterial whether the persons whose actions are objected to have
come recently to the neighbourhood, or have been occupying the place for a long time. 5
A prescriptive right to the exercise of a noisome trade on a particular spot may be established by showing twenty
years’ user by the defendant. 6
Constant daily noise in an adjoining house. —The constant daily ringing of a peal of heavy bells in a house actually
adjoining a private residence was held to be an actionable nuisance and an injunction was granted to restrain it. 7
Injunction was granted to prevent building operations from being proceeded with during the night to the annoyance
and discomfort of an adjoining occupier. 8 Sending up of fire-works and causing a band to play for several hours
twice a week within one hundred yards of a dwelling-house; 9 the performance of a circus erected near the
plaintiff's house, making a loud noise heard through the plaintiff's house; 10 the collection of crowds outside a club
established for pugilistic encounters; 11 the establishment of a rifle gallery, organ, and roundabout, in proximity to
the plaintiff's house; 12 erection of a stable in such close proximity to a house as to interfere by reason of the noise
of the horses with the enjoyment of the owner of the house; 13 noise from the kitchen of an hotel erected close to
the plaintiff's residence, 14 were restrained by injunction.
The plaintiffs carried on the business of breeding silver foxes on their land, during the breeding season the vixens
are very nervous, and liable, if disturbed, either to refuse to breed, to miscarry, or to kill their young. The defendant,
an adjoining landowner, maliciously caused his son to discharge guns on his own land as near as possible to the
breeding pens for the purpose of injuring the plaintiffs. It was held that the plaintiffs were entitled to an injunction
and damages, although the firing took place on the defendant's land over which he was entitled to shoot. 15
Music.— Where a nuisance was caused to a tenant of a room in a house by reason of the floor above being used
for dancing and other entertainment causing noise and vibration, the Court gave nominal damages but declined to
grant an injunction on the ground of balance of convenience. 16 Giving of numerous music lessons by the
defendant in a house separated from the plaintiff's house by a thin party-wall, varied by practising and singing, and
evening musical entertainments, was held not to be a nuisance for which an injunction could be granted; and,
moreover, the Court restrained the plaintiff from making noises by way of reprisal. 17
Prescription.— A confectioner had for upwards of twenty years used, for the purposes of his business, a pestle and
mortar in his back premises, which abutted on the garden of a physician, and the noise and vibration were not felt to
be a nuisance or complained of until 1873, when the physician erected a consulting room at the end of his garden,
and then the noise and vibration, owing to the increased proximity, became a nuisance to him. The question for the
consideration of the Court was whether the confectioner had obtained a prescriptive right to make the noise in
question. It was held that he had not, inasmuch as the user was not physically capable of prevention by the owner
of the servient tenement, and was not actionable until the date when it became by reason of the increased proximity
a nuisance in law, and under these conditions, as the latter had no power of prevention, there was no prescription
by the consent or acquiescence of the owner of the servient tenement. 18
7. WHO CAN SUE FOR NUISANCE?
The actual occupier of premises can alone bring an action for nuisance of a temporary character. If the injured
property is in the occupation of tenants, the landlord or reversioner has no right of action. The latter can bring an
action only if the injury complained of is of a permanent nature 19 (e.g. , obstruction of light, but not such as noise
Page 11 of 27
CHAPTER XX NUISANCE
of machinery in adjacent premises 20 ) and injurious to the property and detrimental to the letting value of the
house. 21
If a person takes as tenant an unfurnished house, he cannot, in the absence of a warranty or other special
circumstances, hold the landlord liable because of damages arising to him during and by reason of his occupancy
as tenant through the house being out of repair or dilapidated. If the tenant brings his wife with him to live in the
house, she cannot be in a better position than her husband by reason of her occupancy of the house. 22 A person
who has no interest in the property, no right of occupation in the proper sense of the term, cannot maintain an
action for a nuisance. The wife of a tenant was held not entitled to maintain an action for injury caused by a tank
falling on her owing to vibrations caused by the defendant. 23 This has been approved by the House of Lords and
it has been held that a person who had no right to the land affected by a nuisance could not sue in private
nuisance. Only a person with a right to exclusive possession of the land affected could sue but exceptionally a
person who was in exclusive possession but who was unable to prove his title could also sue. 24
8. WHO IS LIABLE FOR NUISANCE?
The action must be brought “against the hand committing the injury, or against the owner for whom the act was
done.” 25 It will lie against the person (1) who creates or continues a nuisance or authorizes or suffers the creation
of a nuisance; or (2) who lets or sells property with a nuisance on it. A person is liable for a nuisance constituted by
the state of his property (1) if he causes it; (2) if by the neglect of some duty he allowed it to arise; and (3) if, when it
has arisen, without his own act or default, he omits to remedy it within a reasonable time after he became or ought
to have become aware of it. 26 Nuisance arising from escape of things naturally on his land may also make the
occupier liable if he has failed to take reasonable care with regard to them. 27
The question of liability when the nuisance affecting neighbours land and buildings was not created by the
defendant was elaborately considered by the court of appeal in Holback Hotel Ltd. v. Scarborough Borough Council
28 and the following proposition may be said to have been laid down: (1) The duty to abate the nuisance arose
from the defendant's knowledge of the hazard and the liability arose only when the defendant was guilty of
negligence in abating the nuisance; and (2) The existence of duty and its scope in a nonfeasance case will be
determined by applying the test whether it was fair just and reasonable to impose a duty or the extent of that duty.
In this case the claimants were the freehold owners and lessees of a hotel which stood on a cliff overlooking the
sea. The land between the hotel grounds and the sea was owned by the defendant Borough Council which as
owner of the serviant tenement was under a duty to provide support to the Hotel grounds. Due to maritime erosion
the cliff was inherently unstable. Land slips had occurred in 1982 and 1986 on the council's land below the hotel
grounds and the council's chief engineer had expressed the fear after the second slip that the slip if not checked
could affect part of the hotel's land. In 1993 there was a massive slip far greater in magnitude than the earlier slips
as a result the ground under the seaward wing of the hotel collapsed and the rest of the hotel had to be demolished
for safety reasons. In a suit for damages against the council it was held that the council could not have foreseen a
danger of the magnitude that occurred in 1993 and it was not just and reasonable to impose liability for damage
which was greater in extent than anything that was foreseen or foreseeable without further geological investigation.
Moreover it was not incumbent on the council to carry out extensive and expansive remedial work to prevent
damage which it ought to have foreseen.
An occupier of land is liable for the continuation of a nuisance created by others (e.g. by trespassers or by persons
without his authority or permission) if he continues or adopts it. He “continues” a nuisance if with knowledge or
presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample
time to do so. He “adopts” it if he makes any use of the erection or artificial structure which constitutes the nuisance.
29
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The acts of two or more persons may, taken together, constitute such a nuisance that the Court will restrain all from
doing the acts constituting the nuisance although the annoyance occasioned by the act of any one of them, if taken
alone, would not amount to a nuisance. For instance, if one person leaves a wheelbarrow standing on a way, that
may cause no appreciable inconvenience, but if a hundred do so that may cause a serious inconvenience, which a
person entitled to the use of the way has a right to prevent, and it is no defence to any one person among the
hundred to say that what he does causes of itself no damage to the complainant. 30
If, owing to want of repair, premises on a highway become dangerous and constitute a nuisance, so that they
collapse and injure a passer-by or an adjoining owner, the occupier or owner of the premises, if he has undertaken
the duty to repair is answerable, whether he knew or ought to have known of the danger or not. If the nuisance is
created, not by want of repair, but by the act of a trespasser, or by a secret and unobservable process of nature,
neither the occupier nor the owner responsible for repair is answerable, unless with knowledge or means of
knowledge he allows the danger to continue. 31
An extraordinarily severe snow-storm caused snow and ice to accumulate on the roof of the defendant's premises.
No steps were taken to remove the snow or to warn the public of its presence. The plaintiff was standing on the
highway outside the defendant's premises looking through the window of the defendants’ shop when she was
injured by a fall of snow. She claimed damages, alleging nuisance, or, alternatively, negligence. It was held that as
the defendants had done nothing to abate the nuisance they were liable both in nuisance and in negligence and
that the plea that the storms were an act of God was no defence as it was the snow, and not the storms, which
directly caused the injury. 32
Falling of slate from roof.— A slate fell from the roof of certain premises and injured the plaintiff. It was found that
the slate was loosened by blast from an enemy bomb but it was not known to the occupier of the premises that it
was so and on inspection of the roof it did not appear that it had loosened. The cause of the fall was high wind. It
was held that the defendants were not liable for having continued a nuisance the existence of which they ought to
have known. 33
Overhanging branch.— The defendants were the owners and occupiers of a farm adjoining which there was a
public road. On the farm and growing on the grass verge near the road was an oak tree of considerable age one
substantial branch of which was going at right angles towards the road for about two feet before turning straight
upwards. The oak had grown before the defendants came to own and occupy the farm. Neither the defendants nor
the highway authorities nor the plaintiff's driver who frequently passed along the road had considered the branch to
be a hazard. A lorry belonging to the plaintiffs and carrying a high load of packing cases was being driven along the
road at night by the driver, who pulled in to his near side to allow another lorry of the plaintiffs coming in the
opposite direction to pass, with the result that the load struck the overshadowing branch and one of the packing
cases fell on the road. The lorry coming in the opposite direction also sustained damages when trying to avoid the
packing case. It was held that the plaintiff's claim failed as although the overshadowing branch was a nuisance, the
defendants could not be presumed to know of the nuisanceand could not be held liable for continuing it. 34
Liability of landlord .—Generally no action will lie against a landlord for any nuisance existing on premises in
occupation of a tenant. The action should be brought against the tenant. 35
The landlord will be liable for nuisance (1) if he lets the premises in a ruinous condition, provided that he knew of
their condition, 36 (2) when it has been created before the premises were let by him, 37 e.g. obstruction caused to
the ancient lights of a neighbour; (3) if he expressly or impliedly authorises his tenant to create or continue the
nuisance; 38 (4) when the nuisance is due to a breach by him of the covenants of the lease, 39 e.g. if he neglects
to repair the premises.
A landlord who lets an unfurnished house in a dangerous condition, he being under no liability to keep it in repair, is
not liable in the absence of express contract to his tenant, or to a person using the premises, for personal injuries
happening during the term, and due to the defective state of the house. 40 The only duty which the landlord owes
to the customers or guests of the tenants is not to expose them to a concealed danger or trap. 41 If there is a
defect in the premises likely to cause injury, but known both to the landlord and the tenant, the landlord is not
responsible for injuries caused to the tenant. 42
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CHAPTER XX NUISANCE
The owner of a dilapidated house contracted with his tenant to repair it but failed to do so. The tenant's wife, who
lived in the house and was well aware ofthe danger, was injured by an accident caused by the want of repair. It was
held that the wife, being a stranger to the contract, had no claim for damages against the owner. 43
The plaintiff was a tenant of defendant's farms. The right of sporting and preserving game was reserved to the
landlord. The defendant had shooting rights over 4230 acres of which 2326 were let to the plaintiff. During the
season 1947-48 the defendant's coverts were filled with an inordinate number of wild pheasants which in their
search for food gravely damaged the plaintiff's crops. In an action by the plaintiff it was held that the presence of the
large number of pheasants in the defendant's coverts was not due to any “unreasonable action” by the defendant
but was due to exceptional weather conditions prevailing in the summer of 1947; that the defendant was not under
a legal obligation to the plaintiff to reduce or disperse the pheasants. They were feroe naturea and the fact that the
plaintiff had no right to shoot them did not impose any duty in law on the defendant to shoot them himself. 44
9. REMEDIES
The remedies for private nuisances are (1) Abatement, (2) Damages, and (3) Injunction.
Abatement , that is removal of the nuisance by the party injured without recourse to legal proceedings. The removal
must be (i) peaceable, (ii) without danger to life or limb, and (iii) if it is necessary to enter another's land to abate the
nuisance, or where the nuisance is a dwelling-house in actual occupation on a common, after notice to remove the
same, unless it it unsafe to wait. No more damage may be done than is necessary. It is lawful to remove a gate or
barrier which obstructs a right of way but not to break or deface it beyond what is necessary for the purpose of
removing it. If a party who has a right to a stone weir were to erect buttresses, one who should oppose the erection
of the buttresses could not justify demolishing the weir as well as the buttresses. 45 The abatement of a nuisance
by a private individual is a remedy which the law does not favour. 46 The courts have confined the remedy by way
of self redress to simple cases of overhanging branch or an encroaching root, which would not justify the expense
of legal proceedings; and rgent cases which require an immediate remedy. 47 When the nuisance arises merely
from omission on the part of the wrong-doer the law is not clear.
The owner of a particular land has no right to allow his trees to overhang on the lands of his neighbour and he
cannot acquire any right by prescription and the aggrieved person can abate the nuisance. 48
Local Bodies like a municipality have generally statutory powers to abate a public nuisance and when they
unreasonably refuse to exercise these powers a petition under Article 226 can be filed for directing them to exercise
the statutory power for abating the nuisance. 49
Notice.— In the case of nuisances by an act of commission the injured party may abate them, without notice to the
person who committed them, as they are committed in defiance of those whom such nuisances injure. In the case
of nuisances by an act of omission notice is necessary, except (a) where branches of trees overhanging on one's
property are to be cut, and (b) where the security of lives and property requires a speedy remedy. 50
Tree overhanging another person's boundary.— If a tree overhangs the land of another person, then that person
can lawfully cut the overhanging branches even without giving notice, however long they may have overhung his
land. 51 A person cannot acquire as easement the right of projecting the branches of trees growing on his land
over the land of another person. 52 But the right to lop the branches does not carry with it the right to pick and
appropriate the fruit that grows on it. If a person appropriates the fruit he will be guilty of conversion. 53 A person
cannot cut off the overhanging branches of a tree standing partly on his own land and partly on the land of his
neighbour who is entitled to its fruits. 54
Damages.— The principle to be applied in cases of nuisance is not whether the defendant is using his own property
reasonably or otherwise, but whether he injureshis neighbour. 55 The measure of damage is the diminution in
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CHAPTER XX NUISANCE
value of the property in consequence of the nuisance. The plaintiff must prove some special damage. Where the
proximity of a nuisance is one of the main reasons, though not the whole reason, for a house becoming unlettable,
the damages will be the amount of loss in monthly rental value due to the nuisance. 56
In cases of continuing nuisance, the Court cannot lawfully give damages in respect of any injury subsequent to the
day of the commencement of the action, for every day that the nuisance continues there is a fresh cause of action
in respect of which further damages are recoverable. But if substantial damages are once given and a fresh action
is brought for the continuance of the nuisance, exemplary damages may be given to compel an abatement. 57
Special damage is that damage which by reason of a nuisance would be suffered by some individual beyond what
is suffered by him in common with other persons affected by that nuisance. 58
Injunction.— In order to obtain an injunction it must be shown that the injury complained of as present or impending
is such as by reason of its gravity, or its permanent character, or both, cannot be adequately compensated in
damages. If the injury is continuous the Court will not refuse an injunction because the actual damage arising from it
is slight. 59
The normal remedy in case of continuing nuisance is injunction which cannot be lightly denied and damages
granted in lieu thereof. The principles bearing upon this question were laid down in Shelfer v. City of London Elec.
Light Co. 60 which is still good law. The case of Shelfer was a case of nuisance in the form of noise and vibrations
but the principles laid down therein are generally applicable to any case of continuing nuisance. The principles were
culled out from Shelfer in Regan v. Paul Properties 61 which was a case of continuing nuisance arising from
obstruction of light. These principles are 62 :
(1) “A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as
continuing nuisance, which invades the claimant's legal right.
(2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant's rights
on payment of damages assessed by the court.
(3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing
nuisance; but the jurisdiction does not mean that the court is ‘a tribunal for legalizing wrongful acts’ by a
defendant, who is able and willing to pay damages.
(4) The judicial discretion to award damages in lieu should pay attention to well-settled principles and should
not be exercised to deprive a claimant of his prima facie right ‘except under very exceptional
circumstances’.
(5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay
down rules for its exercise, the judgments indicated that it was relevant to consider the following factors:
whether the injury to the claimant's legal rights was small; whether the injury could be estimated in money;
whether it could be adequately compensated by a small money payment; whether it would be oppressive
to the defendant to grant an injunction; whether the claimant had shown that he only wanted money;
whether the conduct of the claimant rendered it unjust to give him more than pecuniary relief; and whether
there were any other circumstances which justified the refusal of an injunction.”
No mandatory injunction against a private individual for what is a mere nuisance in law will be granted except where
it has been created and persisted in defiance of local authority and that local authority has no sufficient power to
enforce compliance with the law. 63
An injunction to prevent an apprehended or future nuisance will generally not be granted unless the threat be
imminent or likely to cause such damage as would be irreparable once it is allowed to occur. 64 Another category
of future nuisance may be when the likely act of the defendant is inherently dangerous or injurious such as digging
a ditch across a highway or in the vicinity of a children's school or opening a shop dealing with highly inflammable
products in the midst of a residential locality. 65
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CHAPTER XX NUISANCE
10. BURDEN OF PROOF
In an action for a public nuisance, once the nuisance is proved and the defendant is shown to have caused it, then
the legal burden is shifted on to the defendant to justify or excuse himself. If he fails to do so he is held liable,
whereas in an action for negligence the legal burden in most cases remains throughout on the plaintiff. 66 Similar
is the position in case of private nuisance, once a claimant has proved that a nuisance has emanated from the
defendant's land, the onus shifts to the defendant to show that he has a defence to the claim, whether this be
absence of negligence in a case of statutory authority or that he took all reasonable steps to prevent the nuisance.
67
1
Stephen, iii, 499.
2
Cunard v. Antifyre Ltd ., (1933) 1 KB 551, 558 : 148 LT 287 : 49 TLR 183.
3
Rapier v. London Ramways Co ., (1893) 2 Ch 588, 599 : 69 LT 361 : 63 LJ Ch 36; Newsome v. Darton
Urban District Council , (1938) 1 All ER 79, 81.
4
Dunne v. North Western Gas Board, (1964) 2 WLR 164, 181 : (1963) 3 All ER 916.
5
Allen v. Gulf Oil Refining Ltd ., (1981) 1 All ER 353 (HL), p. 356 : (1980) QB 156; Department of Transport
v. North West Water Authority , (1983) 3 All ER 273 (HL), pp. 275, 276 : (1984) AC 336 : (1983) 3 WLR
707. See further text and notes 13 to 17, pp. 90, 91, Chapter V.
6
Home Office v. Dorset Yacht Co. Ltd ., (1970) AC 1004 (HL) pp. 1064-1071 : (1970) 2 WLR 1140 : 114 SJ
375 : (1970) 2 All ER 294.
7
Malton Board of Health v. Malton Manure Co ., (1879) 4 Ex D 302.

8
Lambton v. Mellish, (1894) 3 Ch 163.

9
Lister's Case, (1856) 1 D & B 118.

10
Att-Genl. v. Proprietors of the Bradford Canal, (1866) LR 2 Eq 71.

11
Weld v. Hornby , (1806) 7 East 195. See s. 268 of the Indian Penal Code as to nuisance punishable as a
crime.
12
Page 16 of 27
CHAPTER XX NUISANCE
Ireson v. Moore , (1699) 1 Ld Raym 486; Hubert v. Groves , (1794) 1 Esp 148; Winterbottom v. Lord Derby
, (1867) LR 2 Ex 316; Vanderpant v. Mayfair Hotel Co ., (1930) 1 Ch 138 : 142 LT 198 : 99 LJ Ch 84.
Frontagers on a road not repairable by the inhabitants at large, have such an interest, over and beyond that
of the general public, in preventing damage to the road, as to entitle them to sue for an injunction : Medcalf
v. R. Strawbridge, Ld ., (1937) 2 KB 102; Bhawan Singh v. Narottam Singh , (1909) ILR 31 All 444; Ram
Chandra v. Joti Prasad , (1910) ILR 33 All 287; Ganga Din v. Jagat , (1914) 12 ALJR 1026; Ramghulam
Khatik v. Ramkhelawan Ram , (1936) ILR 16 Pat 190. In this case it was also held that the right of the
resident of a village to sue for removal of an obstruction to a village path or to a well does not amount to a
public nuisance and a suit was maintainable without proving special damage.
13
The Municipal Board, Lucknow v. Mussammat Ram Dei , ILR (1940) 16 Luck 173 .
14
Benjamin v. Storr , (1874) LR 9 CP 400, 407; Sadu v. Suka , (1902) 5 Bom LR 116.
15
Benjamin v. Storr, ibid .

16
See Advocate-General v. Haji Ismail Hasham , (1909) 12 Bom LR 274.

17
Soltau v. De Held , (1851) 2 Sim NS 133.

18
The Land Mortgage Bank of India v. Ahmedbhoy Habibbhoy and Kesowram Ramanand , (1883) ILR 8 Bom
35.
19
Campbell v. Padington Corporation, (1911) 1 KB 869 : 104 LT 394 : 27 TLR 232.

20
Leanse v. Egerton (Lord), (1943) 1 KB 323. See further title 3(F), p. 533, Chapter XIX.
21
Dwyer v. Mansfield, (1946) 1 KB 437 : (1996) 2 All ER 247 : 62 TLR 400.

22
Attorney General v. P.Y.A. Quarries , (1957) 1 All ER 894 : (1957) 2 QB 169 : (1957) 2 WLR 770.
23
WINFIELD defines private nuisance as “unlawful interference with a person's use or enjoyment of land, or
some right over, or in connection with it.” WINFIELD AND JOLOWICZ, Tort, 12th Edn., p. 380; Bhanwarlal
v. Dhanraj , AIR 1973 Raj 212 (216). See further Usha Ben v. Bhagya Laxmi Chitra Mandir , AIR 1978 Guj
13 [LNIND 1976 GUJ 51].
24
Rafat Ali v. Sugjani Bai, AIR 1999 SC 283, pp. 285, 286 : (1999) 1 SCC 133 [LNIND 1998 SC 1597].
25
Page 17 of 27
CHAPTER XX NUISANCE
Hunter v. Canary Wharf Ltd. , (1997) 2 All ER 426 (HL), p. 441 : (1997) AC 655 : (1997) 2 WLR 684.
26
Ibid, p. 442.
27
Ibid.
28
Ibid.
29
Ibid.
30
Ibid.
31
Ibid.
32
See Dhanusao v. Sitabai , ILR (1948) Nag 698.

33
Bhanwarlal v. Dhanraj , AIR 1973 Raj 213 (216, 217.)

34
Cambridge Water Co. Ltd. v. Eastern Counties Leather plc. , (1994) 1 All ER 53, pp. 70, 71 : (1994) 2 AC
266 : (1994) 2 WLR 53 (HL); Southwork London Borough Council v. Mills , (1999) 4 All ER 449, p. 460
(HL).
35
Southwork London Borough Council v. Mills , supra .

36
Leconfiled v. Lansdale , (1870) LR 5 CP 657.

37
Sturges v. Bridgman , (1879) 11 Ch D 852; Murgatroyd v. Robinson , (1857) 7 El & Bl 391 : 48 LT Ch 785:
41 LT 219.
38
Elliotson v. Feetham , (1835) 2 Bing NC 134; Bliss v. Hall , (1838) 4 Bing NC 183.
39
Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch 287, 316 : 72 LT 34 : 43 WR 238.
40
St. Helen's Smelting Co. v. Tipping, (1865) 11 HLC 642 ; Bamford v. Turnley , (1860) 3 B & S 62.
41
Page 18 of 27
CHAPTER XX NUISANCE
Broder v. Saillard , (1876) 2 Ch D 692, 701 : 24 WR 1011; Reinhardt v. Mentasti , (1889) 42 Ch D 685.
42
Cunliffe v. Bankes , (1945) 1 All ER 459. See further Lippiatt v. South Gloucestershire Council , (1999) 4 All
ER 149 (CA).
43
Bradley v. Gill , (1862) 125 Eng Rep 1, Lutw 69. See Sadashiva Chetty v. Rangappa Raju , (1918) MWN
293 : 24 MLT 17 where an Oil-mill which was causing noise and emitting foul smell was held to be a
nuisance.
44
Bliss v. Hall , (1838) 5 Scott 500.

45
Jones v. Powell , (1629) Hutt 135.

46
Norton v. Schoolefield , (1842) 9 M & W 655.

47
Attorney General v. Brighton and Have Cooper Supply Association, (1900) 1 Ch 276.
48
PER LORD HALSBURY in Mayor and Corporation of Shoreditch v. Bull, (1904) 90 LT 210, 211; Newsome
v. Darton Urban District Council , (1938) 1 All ER 79, affirmed in (1938) 3 All ER 93.
49
For actions against Highway Authority, see Griffiths v. Liverpool Corporation, (1967) 1 QB 374; Haydon v.
Kent County Council, (1978) QB 343 : (1978) 2 WLR 485 : (1978) 2 All ER 97. See further title 4A Chapter
III.
50
Midwood and Co. Ltd. v. Manchester Corporation, (1905) 2 KB 597.

51
Ware v. Garston Haulage Co., Ltd ., (1944) KB 30.

52
Meggs v. Liverpool Corpn ., (1968) 1 All ER 1137.

53
Ogston v. Aberdeen District Tramways Co ., (1897) AC 111.

54
Wing v. London General Omnibus Co . (1909) 2 KB 652. See McGowan v. Stott, (1923) 143 LT 217, where
this case is commented on.
55
Ware v. Garston Haulage Co. Ltd ., (1944) KB 30.

Page 19 of 27
CHAPTER XX NUISANCE
56
Newsome v. Darton Urban District Council , (1938) 1 All ER 79.

57
St. Helen's Smelting Company v. Tipping, (1865) 11 HLC 642.

58
St. Helen's Smelting Co. v. Tipping, (1865) 11 HLC 642, 650; Bihari Lal v. James Maclean, (1924) ILR 46
All 297.
59
PER JAMES, L.J., in Salvin v. North Brancepeth Coal Co ., (1874) LR 9 Ch 705, 709.
60
PER LORD WENSLEYDALE in St. Helen's Smelting Co. v. Tipping, (1865) 11 HLC 642, 653; Salvin v.
North Brancepeth Coal Co ., (1874) LR 9 Ch 705, 709; Philip v. Subbammal , ILR 1956 TC 1306.
61
Hunter v. Canary Wharf Ltd ., (1996) 1 All ER 482 : (1997) AC 655 : (1997) 2 WLR 684 (CA) : (1997) 2 All
ER 426 (HL).
62
(1851) 4 De G & S 315, 322.
63
Sturges v. Bridgman , (1879) 11 Ch D 852 : 41 LT 219 : 48 LJ Ch 785.

64
Ibid ., p. 865.
65
St. Helen's Smelting Co. v. Tipping, (1865) 11 HLC 642.

66
Pwllbach Colliery Company Limited v. Woodman, (1915) AC 634.

67
St. Helen's Smelting Co. v. Tipping, (1865) 11 HLC 642, applied in Halsey v. Esso Petroleum Company Ltd
., (1961) 2 All ER 145 : (1961) 1 WLR 683 : 105 SJ 209, where the plaintiff was awarded damages for the
nuisance caused by acid smuts and granted an injunction against the nuisance caused by smell and noise.
68
Wood v. Conway Corporation, (1914) 2 Ch 47.

69
Humphries v. Cousins, (1877) 2 CPD 239; Smith v. Kenrick, (1849) 7 CB 515; Baird v. Williamson, (1863)
15 CBNS 376; Broder v. Saillard , (1876) 2 Ch D 692; Hurdman v. North Eastern Ry. Co ., (1878) 3 CPD
168, 173; Ramasubbier v. Mahomed Khan Saheb , (1937) 46 MLW 466.
70
Page 20 of 27
CHAPTER XX NUISANCE
Galstaun v. Doonia Lal Seal , (1905) ILR 32 Cal 697. In this case the defendant, the owner of a shellac
factory, discharged into the municipal drain liquid refuse of an offensive character and he was restrained
from doing so as it interfered with the plaintiff's ordinary comfort.
71
(2002) 2 All ER 55 (CA).
72
(2004) 1 All ER 135 (HL).
73
Lemmon v. Webb, (1894) 3 Ch 1.

74
Bulter v. Standard Telephones and Cables, Ltd ., (1940) 1 KB 399 : 163 LT 145 : (1940) 1 All ER 121.
75
(2001) 4 All ER 737 (HL).
76
Davey v. Harrow Corporation, (1958) 1 QB 60 : (1957) 2 WLR 941 : (1957) 2 All ER 305.
77
Navan Goundan v. Mambattanveetu Kannan, (1950) 1 MLJ 179 : (1950) 63 MLW 81.
78
Batcha Rowther v. Alagappan Servai , AIR 1959 Mad 12 [LNIND 1957 MAD 111]: (1958) 2 MLJ 157
[LNIND 1957 MAD 111].
79
Holling v. Yorkshire Traction Co. Ltd. , (1948) 2 All ER 662.

80
Bamford v. Turnley, (1862) 31 LJQB 286. The defendant kept an hotel adjoining the plaintiff's residence,
and put a kitchen stove in a place where no stove had previously been, and so near the wine-cellar of the
plaintiff as to damage the wine. It was admitted that the stove was one of an ordinary character, well
constructed, and that precaution had been taken to prevent its being obnoxious, but an injunction was
granted : Reinhardt v. Mentasti , (1889) 42 Ch D 685. This decision may be supported on the assumption of
a finding that the placing for the first time of a large stove against a neighbour's cellar, when it might be
placed elsewhere is not a reasonable user conveniently exercised.
81
Baxter v. Camden London Borough Council, (1999) 1 All ER 237 : (2001) QB 1 : (1999) 2 WLR 566 (CA).
82
Crump v. Lombert , (1867) LR 3 Eq 409, applied in Halsey v. Esso Petroleum Company Ltd ., (1961) 2 All
ER 145 : (1961) 1 WLR 683 : 105 SJ 209. If the door of a privy, which opens on a public street, is left open
and constitutes nuisance, an action lies: Krishna Chandra v. Gopal Chand, (1937) 39 PLR 664.
83
Bridlington Relay v. Yorkshire Elec. Board , (1965) 1 All ER 264 : (1965) Ch 436 : (1965) 2 WLR 349 : 109
SJ 12.
Page 21 of 27
CHAPTER XX NUISANCE
84
Hunter v. Canary Wharf Ltd. , (1997) 2 All ER 426 (HL).

85
Bamford v. Turnley , (1862) 31 LJ QB 286.

86
Galstaun v. Doonia Lal Seal , (1905) ILR 32 Cal 697; Sadasiva Chetty v. Rangappa Rajoo , (1918) MWN
293 : 24 MLT 17.
87
Municipal Council Ratlam v. Vardhichand , AIR 1980 SC 1622 : (1980) 4 SCC 162 [LNIND 1980 SC 287] ;
Krishna Gopal v. State of M.P ., 1986 Cr LJ 396 (MP).
88
See Dr. Nazhat Praveen Khan ‘Noise Pollution and Problem of its Legal Control ’, AIR 2004 Journal 357 ;
Noise Pollution , In re, (2005) 5 SCC 733 (paras 14, 94, 103) : AIR 2005 SC 3136.
89
Broadbent v. Imperial Gas Co ., (1856) 7 De GM & G 436.

90
Shotts Iron Co. v. Inglis , (1882) 7 App Cas 518. Erection of chimney with holes emitting smoke actionable
as a nuisance; B. Venkatappa v. B. Lovis , AIR 1986 AP 239 [LNIND 1984 AP 41].
91
Sanders Clark v. Grosvenor Mansions Co., (1900) 16 TLR 428.

92
See the s. 277.
*
The principles enunciated in English and Indian cases relating to nuisance (Private) caused by noise are
summarised in Dhannalal v. Chittar Singh , AIR 1959 MP 240 [LNIND 1957 MP 83], (at pp. 243-244.) See
also Ram Lal v. Mustafabad O.& C.G. Factory , AIR 1968 Punj 399, (at pp. 402-403,) where the principles
relating to actionable nuisance are deduced from a review of case-law.
93
Allen v. Flood, (1898) AC 1, 101; Ismail Sahib v. Venkatanarasimhulu , ILR 1937 Mad 51.
94
Andreae v. Selfridge & Co ., (1938) 1 Ch 1 : 151 LT 317 : (1973) 3 All ER 255 (CA).
95
Bamford v. Turnley , (1860) 3 B & S 62, 72.

96
Vanderpant v. Mayfair Hotel Co., (1930) 1 Ch 138 : 142 LT 198. Where the defendant established an
electric flour-mill adjacent to the plaintiff's house in a bazar locality and the running of the mill produced
such noise and vibrations that the plaintiff and his family did not get peace and freedom from noise to follow
Page 22 of 27
CHAPTER XX NUISANCE
their normal avocations during the day and did not have a quiet rest at night, held, that the running of the
mill amounted to a private nuisance which should not be permitted. In a case like this it is not necessary to
prove that the health of the inhabitants of the plaintiff's house has been impaired: Datta Mal Chiranji Lal v.
Lodh Prasad , AIR 1960 All 632 [LNIND 1959 ALL 234]. See further Radhey Shiam v. Gur Prasad , AIR
1978 All 86 .
97
Noise Pollution (v) In re, (2005) 5 SCC 733 (Paras 10 , 102 ) : AIR 2005 SC 3136. See further text and
notes 23, 24, p. 423.
98
Muhammad Jalil Khan v. Ram Nath Katua , (1930) ILR 53 All 484. See Janki Prasad v. Karamat Husain ,
(1931) ILR 53 All 836, where the question whether music in a temple amounts to a private nuisance is
discussed at length.
1
Colls v. Home and Colonial Stores, Ltd ., (1904) AC 179, 185. See Hari v. Vithal , (1905) 8 Bom LR 89,
where some coppersmiths were restrained from carrying on their kirtans in a way so as to cause
disturbance to the conducting of bhajan (hymns) in a temple. See Ismail Sahib v. Venkatanarasimhulu , ILR
1937 Mad 51, where during the performance of a ceremony, noise was produced by tomtom, cymbals, etc.
long after the hour when people would ordinarily go to sleep, and it was held that this amounted to a
nuisance.
2
Rushmer v. Polsue & Alfieri, Ltd ., (1906) 1 Ch 234, 250. See Ball v. Ray , (1873) LR 8 Ch 467, where the
principles applying to a person who turns his house to unusual purpose are discussed.
3
Polsue & Alfieri, Ltd. v. Rushmer, (1907) AC 121 : 76 LJ Ch 365 : 96 LT 510.

4
Polsue & Alfieri, Ltd., v. Rushmer, Ibid . It has been held that a concentration of moving vehicles in a small
area of a public highway, e.g. outside a depot, was a public nuisance : Halsey v. Esso Petroleum Company
Ltd ., (1961) 2 All ER 145 : (1961) 2 WLR 683.
5
Janki Prasad v. Karamat Husain , (1931) ILR 53 All 836.

6
Elliotson v. Feetham , (1835) 2 Bing NC 134; Flight v. Thomas , (1839) 10 A & E 590. See Goldsmid v.
Turubridge Wells Improvement Commissioners , (1865) LR 1 Eq 161, where it was held that no prescriptive
right could be obtained to discharge sewage into a stream passing through plaintiff's land and feeding a
lake therein perceptibly increasing quantity. No right to hold kirtan upon another's land can be acquired as
an easement. Such a right may be acquired by custom: Mohini Mohan v. Kashinath Roy , (1909) 13 CWN
1002.
7
Soltau v. De Held , (1851) 2 Sim NS 133.

8
Webb v. Barker , (1881) WN 158.

Page 23 of 27
CHAPTER XX NUISANCE
Walker v. Brewster , (1867) LR 5 Eq 25.

10
Inchbald v. Robinson , (1869) LR 4 Ch 388.

11
Bellamy v. Wells , (1890) 60 LJ Ch 156.

12
Winter v. Baker, (1887) 3 TLR 569.

13
Ball v. Ray , (1873) LR 8 Ch 467; Broder v. Saillard , (1876) 2 Ch D 692.

14
Vanderpant v. Mayfair Hotel Co ., (1930) 1 Ch 138 : 142 LT 198.

15
Hollywood Silver Fox Farm, Ltd. v. Emmett, (1936) 2 KB 468 : 155 LT 288 : (1936) 1 All ER 825.
16
Jenkins v. Jackson , (1888) 40 Ch D 71. But where the proprietors of an hotel applied for an injunction to
restrain the proprietor of tea rooms and a restaurant on the opposite side of the street, from using his
premises for the purpose of music, dancing, or other entertainments, so as to cause a nuisance to the
plaintiff's, their servants and guests, the Court granted a limited injunction restraining the defendant from
causing a nuisance by keeping the windows open after midnight while the music and dancing were going
on : New Imperial & Winsudsor Hotel Co. v. Johnson, (1912) 1 IR 327.
17
Christie v. Davey, (1893) 1 Ch 316 : 62 LJ Ch 439.

18
Sturges v. Bridgman , (1879) 11 Ch D 85 : 41 LT 219.

19
Mumford v. O.W. & W. Ry. Co ., (1856) 1 H & N 34. In this case it was held that a reversioner could not
maintain an action against a railway company for making hammering noises in a shed adjoining his house
by reason whereof the tenant quitted, and he was unable to let the house except at a lower rent. See Mott
v. Schoolbred , (1875) LR 20 Eq 22, where a public street was improperly used as a stable yard.
20
Jones v. Chappell , (1875) LR 20 Eq 539; Cooper v. Crabtree , (1882) 20 Ch D 589 : 51 LJ Ch 544.

21
Alwar Chetty v. Madras Electric Supply Corporation Ltd ., (1932) ILR 56 Mad 289.
22
Cavalier v. Pope, (1905) 2 KB 757 : (1906) AC 428. The decision in this case has been reversed by the
Occupier's Liability Act, 1957, (5 & 6 Eliz, II, Ch. 31).
Page 24 of 27
CHAPTER XX NUISANCE
23
Malone v. Laskey, (1907) 2 KB 141 : 76 LJ KB 1134.

24
Hunter v. Canary Whart Ltd., (1997) 2 All ER 426 : (1997) AC 655 (HL). See further , pp. 624, 625, ante.
25
PER LORD KENYON in Stone v. Cartwright , (1795) 6 TR 411, 412; Wilson v. Peto , (1821) 6 Moore 47.
26
Noble v. Harrison, (1926) 2 KB 332, 338.

27
Goldman v. Hargrave, (1967) 1 AC 645. For this case see p. 579, ante.
28
(2000) 2 All ER 705 (CA).
29
Sedleigh-Denfield v. O'Callaghan, (1940) AC 880, applied in Pemberton v. Bright , (1960) 1 All ER 792 :
(1960) 1 WLR 436 : 104 SJ 349.
30
Lambton v. Mellish, (1894) 3 Ch 163 : 71 LT 385 : 58 JP 835. In Jawand Singh v. Muhammad Din , (1919)
PWR No. 89 of 1920, the defendants, Hindus, were prevented from blowing conches and beating drums
when the plaintiffs, Mahomedans, called out the azan from a mosque.
31
Wringe v. Cohen, (1940) 1 KB 229 : (1939) 4 All ER 241, Wilchick v. Marks and Silverstone, (1934) 2 KB 56
: 78 SJ 277 : 50 TLR 28, not approved.
32
State of Worthington's Cash Store, (1941) 1 KB 488.

33
Cushing v. Peter Walker & Son , (1941) 2 All ER 693. Compare case in text and note 20, p. 624, supra and
title 3(F) Chapter XIX, p. 533.
34
British Road Services Ltd. v. Slater , (1964) 1 All ER 816 : (1964) 1 WLR 498. Compare case in text and
note 20, p. 624, supra and title 3(F) Chapter XIX, p. 533.
35
R v. Pedley , (1834) 1 Ad & E 822; Rich v. Basterfield, (1847) 4 CB 783; Pretty v. Bickmore , (1873) LR 8
CP 401.
36
Todd v. Flight , (1860) 9 CB (NS) 377.

37
Roswell v. Prior , (1701) 12 Mod 635.

Page 25 of 27
CHAPTER XX NUISANCE
38
Harris v. James , (1876) 45 LJ QB 545.

39
Wilchick v. Marks and Silverstone, (1934) 2 KB 56 : 78 SJ 277 : 50 TLR 281.

40
Lane v. Cox, (1897) 1 QB 415; Cavalier v. Pope, (1906) AC 428; Dobson v. Horsley, (1915) 1 KB 634;
Shirvell v. Hackwood Estates Company, Limited, (1938) 2 KB 577; Davis v. Foots, (1940) 1 KB 116.
41
Fairman v. Perpetual Investment Building Society, (1923) AC 74 : 87 JP 21 : 39 TLR 54, overruling Miller v.
Hancock, (1893) 2 QB 177.
42
Lucy v. Bawden, (1914) 2 KB 318.

43
Cavalier v. Pope, (1906) AC 428 : 95 LT 65 : 22 TLR 648. This decision is now reversed by the Occupiers’
Liability Act, 1957.
44
Seligman v. Dockers, (1949) Ch 53 : (1948) 2 All ER 887.

45
Greenslade v. Halliday , (1830) 6 Bing 379 ; Mayor of Colchester v. Brooke, (1845) 7 QB 339.
46
Lagan Navigation Co. v. Lambeg Bleaching, Dyeing and Finishing Co ., (1927) AC 226: 91 JP 46 : 136 LT
417. A person who removed a dam erected to obstruct his right of way was convicted of mischief under s.
426 of the Indian Penal Code:Emperor v. Zipru , (1927) 29 Bom LR 484, 51 Bom 487.
47
Burton v. Winters , (1993) 3 All ER 847 (CA), pp. 851, 852 : (1993) 1 WLR 1077.
48
Sheik Batcha Rowther v. Alagappan , (1958) MWN 313 : (1958) 2 MLJ 157 [LNIND 1957 MAD 111].
49
Anil Krishna Pal v. State of West Bengal , AIR 1989 Cal 102 [LNIND 1988 CAL 24].
50
The Earl of Lonsdale v. Nelson , (1823) 2 B & C 302; Jones v. Williams , (1843) 11 M & W 176; Lagan
Navigation Co. v. Lambeg Bleaching, Dyeing and Finishing Co., (1927) AC 226 : 91 JP 46 : 136 LT 417.
51
Norrice v. Baker , (1613) Roll R 393 ; Lemmon v. Webb, (1895) AC 1 : 11 TLR 81; Hari Krishna Joshi v.
Shankar Vithal , (1894) ILR 19 Bom 420; Arumugha Goundan v. Rangaswami Goundan , (1938) 47 MLW
324. An injunction was granted to restrain defendants from obstructing plaintiff to cut off the branches of a
tree which was regarded as an object of eneration by Hindus: Behari Lal v. Ghisa Lal , (1902) ILR 24 All
Page 26 of 27
CHAPTER XX NUISANCE
499. It is open to the Court to grant a mandatory injunction for the removal of such nuisance : Lakshmi
Narain Banerjee v. Tara Prosanna Banerjee , (1904) ILR 31 Cal 944; Vishnu v. Vasudeo , (1918) 20 Bom
LR 826 [LNIND 1918 BOM 89] ; ILR 43 Bom 164. The fact that the party complaining has merely a
leasehold and not a freehold would not in any manner alter the case : Maung Po Thaung v. Mg. Gyi ,
(1923) ILR 1 Ran 281. See Smith v. Giddy, (1904) 2 KB 448 : 20 TLR 596, where an adjoining landowner
was held liable for allowing his trees to overhang his boundary to the damage of the plaintiff's crops. See
Crowhurst v. Amersham Burial Board , (1878) 4 Ex D 5.
52
Keshav v. Shankar , (1925) 27 Bom LR 663. Where a person sold a portion of his land with a tree on it, the
branches of which overhung on the remaining land of vendor, and the vendor wanted to cut off the
overhanging branches, it was held that as the vendor had not expressly reserved to himself a right to cut off
the branches, the right to project the branches must be deemed to have been transferred by common
intention of the parties; Arumugha Goundan v. Rangaswami Goundan , (1938) 47 MLW 324.
53
Mills v. Broker, (1919) 1 KB 555 : 121 LT 254 : 35 TLR 261.

54
Someshvar v. Chunilal , (1919) 22 Bom LR 790, ILR 44 Bom 605.

55
Reinhardt v. Mentasti , (1889) 42 Ch D 685, 690.

56
S.A Basil v. Corporation of Calcutta , ILR (1940) 2 Cal 131 .

57
Battishill v. Reed, (1856) 18 CB 696; Galstaun v. Doonia Lal Seal , (1905) ILR 32 Cal 697.
58
Khirsingh v. Brijlal , ILR 1949 Nag 94.

59
Att-Gen. v. Sheffield Gas Consumers Co ., (1853) 3 De G M & G 304; Att-Genl. v. Cambridge Consumer
Gas Co ., (1868) LR 4 Ch 71; Wood v. Conway Corporation, (1914) 2 Ch 47; Kuldip Singh v. Subhash
Chander Jain , AIR 2000 SC 1410, p. 1413 : (2000) 4 SCC 50 [LNIND 2000 SC 527] (22nd edition of this
book (pp. 522-524) is referred). For the form of permanent injunction in a case of nuisance by noise in
running a machine, see Veerabhadrappa v. Nagamma , AIR 1988 Knt 217 .
60
(1895) 1 Ch.287 (C.A.).
61
(2007) 4 All ER 48 (C.A.).
62
Ibid , p.54 para 36.

63
Advocate General v. Haji Ismail Hasham , (1909) 12 Bom LR 274.

64
Page 27 of 27
CHAPTER XX NUISANCE
Kuldip Singh v. Subhash Chander Jain, AIR 2000 SC 1410, p. 1413 : (2000) 4 SCC 50 [LNIND 2000 SC
527].
65
Ibid.
66
Southport Corp. v. Esso Petroleum Co. Ltd. , (1954) 2 All ER 561, p. 571 (CA); Marcie v. Thomes Water
Utilities Ltd. , (2002) 2 All ER 55, p. 73 (CA).
67
Marcie v. Thomes Water Utilities Ltd. , supra , p. 79 (LORD PHILLIPS MR).
End of Document
CHAPTER XXI FRAUD AND NEGLIGENT MISSTATEMENT
1. FRAUD OR DECEIT
The making of a representation which a party knows to be untrue, and which is intended, or is calculated, to induce
another to act on the faith of it, so that he may incur damage, is a fraud in law. 1 Fraud implies a wilful act on the
part of one, whereby another is sought to be deprived, by unjustifiable means, of what he is entitled to. 2 A false
affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff suffers damage, is the
ground of an action for deceit. In such an action, it is not necessary that the defendant should be benefited by the
deceit, or that he should collude with the person who is, 3 or that the false representation should have been made
from a corrupt motive of gain to the defendant or a wicked motive of injury to the plaintiff. 4 This tort consists in the
act of making a wilfully false statement with intent that the plaintiff shall act in reliance on it, and with the result that
he does so act and suffers harm in consequence. 5 An allegation of fraud requires strict proof. 6
In the leading case of Derry v. Peek , 7 LORD HERSCHELL laid down; “First, in order to sustain an action of
deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown
that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless
whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an
instance of the second, for one who makes a statement under such circumstances can have no real belief in the
truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest
belief in its truth. And this probably covers the whole ground, for one who knowingly alleged that which is false has
obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It
matters not that there was no intention to cheat or injure the person to whom the statement is made.”
In my opinion making a false statement through want of care falls far short of and is a very different thing from
fraud, and the same may be said of a false representation honestly believed though on insufficient grounds—fraud
is essential to found an action of deceit, and it cannot be maintained where the acts proved cannot properly be so
termed. At the same time, I desire to say distinctly that when a false statement has been made the question
whether there were reasonable grounds for believing it, and what were the means of knowledge in the possession
of the person making it are most weighty matters for consideration. The ground upon which an alleged belief was
founded is a most important test of its reality— if I thought that a person making a false statement had shut his eyes
to the facts, or purposely abstained from inquiring into them, I should hold that honest belief was absent, and that
he was just as fraudulent as if he had knowingly stated that which was false.” 8
Thus to create a right of action for deceit there must be a fraudulent representation; and a representation in order to
be fraudulent must be one—
(1) which is untrue in fact;
(2) which the defendant knows to be untrue or is indifferent as to its truth; 9
(3) which was intended or calculated to induce the plaintiff or a third person to act upon it; 10 and
Page 2 of 20
(4) which the plaintiff or the third person acts on and suffers damage.
Falsehood. —There must be an active attempt to deceive by a statement which is false in fact and fraudulent in
intent. The representation must be a representation of fact. A mere expression of opinion, which turns out to be
unfounded, is not sufficient. There is a wide difference between the vendor of property saying that it is worth so
much, and his saying that he gave so much for it; the first is an opinion which the buyer may adopt if he will, the
second is an assertion of fact which, if false to the knowledge of the seller, is also fraudulent.
A suppression of truth (suppressio veri ) may amount to a suggestion of falsehood (suggestio falsi ). Concealment
of this kind is sometimes called “active,” “aggressive,” or “industrious,” but perhaps the word itself, as opposed to
nondisclosure, suggests the active element of deceit which constitutes fraudulent misrepresentation. There must be
“such a partial and fragmentary statement of fact, that the withholding of that which is not stated makes that which
is stated absolutely false.” 11 Half the truth will sometimes amount to a real falsehood. 12
If by a number of statements a person intentionally gives a false impression and induces another person to act
upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in showing that
any specific statement is untrue. 13 A misrepresentation may be implied from a party's conduct. 14
Mere silence with regard to a material fact will not give a right of action unless—
(a) active artificial means have been taken to prevent the other party from discovering the fact for himself; or
(b) the essence of the transaction implied confidence, reposed in the party concealing, to divulge all material
facts.
Non-disclosure when there is no duty to disclose is not fraud. 15 But there may be circumstances when a duty is
cast on a person to disclose material facts. This duty may arise in several ways: (1) It may be a duty which a man
owes to the world at large, such as not to leave a loaded gun in a public place; or (2) a duty arising out of fiduciary
relationship between the parties; or (3) a duty arising out of the nature of the contract as when it is uberrimae fidei .
16 When the duty to disclose arises in the first way the action must be founded on negligence. When it arises in
either of the two remaining ways the remedy will depend upon the presence or absence of fraud. If there is no fraud
in the sense of deceit, equity will allow rescission with a right to restitution but will not award damages. If, however,
there is deceit then there is an additional right to damages founded on tort. 17
False representation as to solvency of a person.— In the case of Pasley v. Freeman 18 the plaintiff was dealing in
cochineal, and at the time when the cause of action arose had a large stock on hand which he was anxious to
dispose of. The defendant learning of this told the plaintiff that he knew one Falch who would purchase the
cochineal. The plaintiff said, “Is he a respectable and substantial person”? “Certainly he is,” answered the
defendant, well knowing he was not of the sort. On the faith of his representation the plaintiff gave to Falch 16 bags
of cochineal of the value of nearly 3,000 on credit. Upon the bill becoming due it turned out that Falch was
insolvent, and being unable to recover his money from Falch, the plaintiff sued the defendant for making to him a
false representation whereby he was damnified, and it was held that the defendant was liable to the plaintiff to the
extent he had suffered in consequence of the former's false statement as to the credit and character of Falch. 19
Selling diseased cow.— The defendant sold a cow, fraudulently representing that it was free from infectious
disease, and the plaintiff having placed the cow with five others they caught the disease and died. It was held that
the plaintiff was entitled to recover as damages the value of all the cows as the death was the natural consequence
of his acting on the faith of defendant's representation. 20
Selling infectious pigs.— The defendant sent for sale to a public market pigs which were to his knowledge infected
with a contagious disease; they were exposed for sale subject to a condition that no warranty would be given and
no compensation would be made in respect of any defect. The plaintiff bought the pigs and put them with other pigs
which became infected; some of the pigs bought as well as some of the other pigs died of the disease. The plaintiff
sued to recover damages for the loss he had sustained. It was held that no action lay, for the defendant's conduct in
exposing the pigs for sale in the market did not amount to a representation that they were free from disease. 21
Page 3 of 20
Selling unsubstantial house. —Where the vendor of a house, knowing of a defect in the wall plastered it up and
papered it over, it was held that an action for deceit lay. 22
Knowledge or ignorance.— The representation must be made with knowledge of its falsehood or without belief in its
truth. Unless this is so, a representation which is false gives no right of action to the party injured by it. An untrue
statement as to the truth or falsity of which the man who makes it has no belief is fraudulent, for in making it he
affirms he believes it which is false. 23
(a) A false statement through want of care falls far short of and is a very different thing from fraud, and the
same may be said of a false representation honestly believed though on insufficient grounds. 24 In an
action for fraudulent misrepresentation the question is not whether the defendant honestly believed the
representation to be true in the sense assigned to it by the Court on objective considerations but whether
he honestly believed it in the sense in which he understood it, provided it was a sense in which the
representation might be reasonably understood. 25 If a person has formed no belief whether the
statement is true or false, and makes it recklessly without caring whether it is true or false, an action will lie
against him. But not so if he carelessly makes the statement without appreciating the importance and
significance of the words used, unless indifference to their truth is proved. 26
(b) If a person makes a representation by which he induces another to take a particular course and the
circumstances are afterwards altered to the knowledge of the party making the representation but not to
the knowledge of the party to whom the representation is made, it is the imperative duty of the party who
has made the representation to communicate to the party to whom the representation has been made
about the alteration in those circumstances. 27
(c) As every one who makes a statement in order to induce another to act on it must be taken, at least, to
represent that he does believe it, an action lies if he had no belief, but acted recklessly, careless whether
the statement was true or false, provided he was conscious that he did not believe the statement. 28 If a
man, in the course of business, volunteers to make a statement on which it is probable that in the course of
business another will act, there is a duty which arises towards the person to whom he makes that
statement. There is clearly a duty not to state a thing which is false to his knowledge, and further than that
there is a duty to take reasonable care that the statement shall be correct. 29 “If a man, having no
knowledge whatever on the subject takes upon himself to represent a certain state of facts to exist, he
does so at his peril; and, if it be done either with a view to secure some benefit to himself, or to deceive a
third person, he is in law guilty of fraud, for he takes upon himself to warrant his own belief of the truth of
that which he so asserts.” 30
Careless statement in prospectus of company.— In the leading case of Derry v. Peek 31 an Act incorporating a
tramway company provided that carriages might be moved by animal power and with the consent of the Board of
Trade, by steam power. The directors issued a prospectus containing a statement that the company had the right
by their Act to use steam power instead of horses. The plaintiff took shares on the faith of this statement. The Board
of Trade refused their consent to the use of steam power and the company was wound up. In an action against the
directors for false statement it was held that they were not liable for the misrepresentation as they honestly believed
the statement to be true although they were guilty of some carelessness in making it.
Acceptance of bill of exchange without authority.— The defendant accepted a bill of exchange drawn on A,
representing that he had A's authority to do so, and honestly believing that the acceptance would be sanctioned
and the bill met by A. The bill was dishonoured; it was held that an action for deceit lay against the defendant by an
endorsee for value. Absence of dishonest motive is no defence. 32
Mistake in transmission of telegram.— Where a telegraph company, by a mistake in the transmission of a message,
caused the plaintiff to ship to England large quantities of barley which were not required, and which, owing to a fall
in the market, resulted in a heavy loss, it was held that the representation not being false to the knowledge of the
company, gave no right of action to the plaintiff. 33
Representation must be to induce a person to act on it.— The representation must have been intended from the
mode in which it is made to induce another to act on the faith of it. 34 It is not necessary that the representation
Page 4 of 20
should be made to the plaintiff directly; it is sufficient if it is made to a third person to be communicated to the
plaintiff, or to be communicated to a class of persons of whom the plaintiff is one, or even if it is made to the public
generally with a view to its being acted on, and the plaintiff, as one of the public, acts on it and suffers damage
thereby. 35 Where the defendant sold a gun to the father of the plaintiff, for the use of himself and his son,
representing that the gun was made by a well-known maker and safe to use and the son used the gun, which
exploded injuring his hand, it was held that the defendant was liable to the son, not on his warranty for there was no
contract between them, but for deceit. 36 A tradesman, who contracts with an individual for the sale to him of the
article to be used for a particular purpose by a third person is not, in the absence of fraud, liable for injury caused to
such person by some defect in the construction of the article. 37
No one can escape liability for his own fraudulent statements by inserting in a contract a clause that the other party
shall not rely upon them. 38
Injury to plaintiff.— The false representation should have been made with the intent that it should be acted upon by
a person in the manner that occasions injury or loss. 39 The plaintiff must show that he was deceived by the
fraudulent statement and acted upon it to his prejudice. 40 Where the defendant sold a steel cannon to the plaintiff,
having concealed a defect in it, and the plaintiff never inspected the cannon, which owing to the defect burst on
being used, it was held that the defendant was not liable as the plaintiff never inspected the gun and was not
deceived by the attempted fraud. 41 As it is necessary to prove that the plaintiff acted on the representation and
suffered harm in consequence, a mere attempt to deceive is not actionable. 42
Fraud without damage, or damage without fraud, gives no cause of action, but where these two concur an action
lies. An action for deceit cannot be supported for telling a bare naked lie, that is saying a thing which is false,
knowing or not knowing it to be so, and without any design to injure, cheat or deceive another person. Every deceit
comprehends a lie, but a deceit is more than a lie on account of the view with which it is practised, its being coupled
with some dealing, and the injury which it is calculated to occasion, and does occasion, to another person. 43 The
injury must be the immediate and not the remote consequence of the representation made. 44 If the representation
is untrue it is no defence that the person to whom the representation was made had the means of discovering, and
might with reasonable diligence have discovered that it was untrue, or that he made a cursory inquiry into the facts.
To escape liability the defendant must show either that the plaintiff had knowledge of the facts which showed it to
be untrue, or that he stated in terms, or showed clearly by his conduct that he did not rely on the representation. 45
It is sometimes said that where a person on whom fraud is committed is in a position to discover the truth by due
diligence fraud is not proved. 46 This is, however, not a correct statement of the law at least so far as an action for
deceit is concerned where contributory negligence of the plaintiff is no answer to the claim. 47 A request
accompanying a fraudulent statement that the plaintiff should verify all representations for himself will not help the
defendant for such a request or a provision in a contract might advance and disguise the fraud and may be a part of
the fraud itself. 48
Selling injurious hair-wash.— The plaintiffs, husband and wife, by their declaration alleged that the defendant in the
course of his business professed to sell a chemical compound represented by him to be fit to be used for hair-wash.
The husband thereupon brought a bottle of the hair-wash which was used by the wife, who was injured by the
wash. It was held that the declaration disclosed a good cause of action. 49
Train announced as running taken off.— Where a train which had been taken off was announced as still running in
the current time-table of a railway company, this was a false representation, and a person who by relying on it had
missed an appointment and incurred loss was held to have an action for deceit. 50
False statement by director of a company.— Where a director of a company put forth transferable shares into the
market, and published and circulated false statements and representations for the purpose of selling the shares, the
false representation was deemed in law to be made to all persons who read the public announcements and became
purchasers of shares on the faith of the statements contained in them. 51
A director of a company is personally liable for deceit and it is no defence that his act had been committed on behalf
of the company even though it be true. 52
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False announcement of sale.— The defendant had inserted in a newspaper an advertisement that a certain farm
was to be let with immediate possession. The plaintiff went down to see the farm, and incurred expenses in
examining the property. The defendant knew at the time he inserted the advertisement that he had not the power to
let the farm, and that it was not to be let. It was held that this amounted to a false representation and the defendant
was liable. 53
Prospectus cases.— A prospectus for an intended company contained misrepresentation of facts known to the
directors who issued it. Being addressed to the public, any one might take up the prospectus and appropriate to
himself its representations, by applying for an allotment of shares. It was held that when the allotment was
completed the office of the prospectus was exhausted, and that a person who had not become an allottee but was
only a subsequent purchaser of shares in the market was not so connected with the prospectus as to render those
who had issued it liable to indemnify him against the losses which he had suffered in consequence. 54 But where a
prospectus is issued not merely to induce application for an allotment of shares but also to induce persons to
purchase the shares in the market the function of the prospectus is not exhausted upon the allotment of shares; and
a person who having received a prospectus afterwards purchases shares in the open market relying upon false
representations contained in such prospectus has a cause of action against the promoters in respect of such false
representations if he thereby sustains a loss. 55
A fraudulent representation as to credit.— A fraudulent representation as to the credit or financial ability of a person
is actionable at common law. Thus if A sells goods to B on credit on the faith of a representation made by C to A
that B might be safely trusted, and the representation is false, and made with intent to induce A to sell the goods on
credit to B, C is liable to A at common law for the loss occasioned to A by his fraudulent misrepresentation. 56
Since, however, LORD TENTERDEN'S Act, 57 no action can be brought in England in respect of such a
misrepresentation unless it was made in writing signed by the party to be charged therewith. There is no such Act in
India, and the liability will attach whether the representation is written or verbal.
Damages. —The plaintiff may recover damages for any injury which is the direct and natural consequence of his
acting on the faith of the defendant's representations. 58 The damages are arrived at by considering the difference
in the position a person would have been in had the representation made to him been true, and the position he is
actually in, in consequence of its being untrue. 59 In Smith New Court Securities Ltd. v. Scrimgeour Vicker (Asset
management) Ltd. , 60 the House of Lords held. that where a plaintiff is induced by fraud to purchase property, the
defendant is bound to make reparation for all the damage (even if not foreseeable) directly flowing from and
consequential losses caused by the transaction. 61 The normal rule for calculating the loss caused by the fraud of
the defendant was prima facie the price paid less the real value of the property at the date of the transaction. 62
But the date of the transaction rule does not apply where either the misrepresentation continued to operate after
that date so as to induce the plaintiff to retain the property, or the circumstances of the case were such that, by
reason of the fraud, the plaintiff was locked into the property. 63
The following general principles for award of damages for fraud or deceit were laid down in this case.
LORD BROWNE WILKINSON, summarising the principles applicable in assessing damages payable where the
plaintiff has been induced by a fraudulent misrepresentation to buy property, stated the first three as follows:
‘(1) The defendant is bound to make reparation for all the damage directly flowing from the transaction. (2)
Although such damage need not have been foreseeable, it must have been directly caused by the transaction.
(3) In assessing such damage, the plaintiff is entitled to recover by way of damages the full price paid by him,
but he must give credit for any benefits which he has received as a result of the transaction.’ (See [1996] 4 All
ER 769 at 778-779)
LORD STEYN said that the decision of the Court of Appeal in Doyle v. Olby (Ironmongers) Ltd. , (1969) 2 All ER
119, (1969) 2 QB 158 justified the following propositions:
‘(1) The plaintiff in an action for deceit is not entitled to be compensated in accordance with the contractual
measure of damage, i.e. the benefit of the bargain measure. He is not entitled to be protected in respect of his
positive interest in the bargain. (2) The plaintiff in an action for deceit is, however, entitled to be compensated
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in respect of his negative interest. The aim is to put the plaintiff into the position he would have been in if no
false representation had been made. (3) The practical difference between the two measures was lucidly
explained in a contemporary case note on Doyle v. Olby (Ironmongers) Ltd. (see Treitel “Damages for Deceit”
(1969) 32 MLR 558 -559). The author said: “If the plaintiff's bargain would have been a bad one, even on the
assumption that the representation was true, he will do best under the tortious measure. If, on the assumption
that the representation was true, his bargain would have been a good one, he will do best under the first
contractual measure (under which he may recover something even if the actual value of what he has recovered
is greater than the price).”. (5). the victim of the fraud is entitled to compensation for all the actual loss directly
flowing from the transaction induced by the wrongdoer. That includes heads of consequential loss (6)
Significantly in the present context the rule in the previous paragraph is not tied to any process of valuation at
the date of the transaction. It is squarely based on the overriding compensatory principle, widened in view of
the fraud to cover all direct consequences. The legal measure is to compare the position of the plaintiff as it
was before the fraudulent statement was made to him with his position as it became as a result of his reliance
on the fraudulent statement.’ (See [1996] 4 All ER 769 at 792).
All who profit more or less by a fraud, and all who aid and abet it, as well as those who directly commit it, are liable
in damages.
Where a cattle dealer sold to the plaintiff a cow, and fraudulently represented that it was free from infectious
disease, when he knew that it was not, and the plaintiff having placed the cow with five others, they caught the
disease and died, it was held that the plaintiff was entitled to recover as damages the value of all the cows. 64
2. FRAUD BY AGENT
The fraud of an agent, acting within the scope of his employment, 65 is the fraud of the principal. But the liability of
the principal depends on several considerations:—
A The principal knows the representation to be false.
(1) He authorises the making of it. In this case whether the agent knows it to be false or thinks it to be true,
the principal is liable.
If the agent knows that it is false, he is liable; but if he believes it to be true, he is not liable.
(2) The representation is made by the agent in the general course of his employment, but without any
specific authorisation from the principal. The principal is liable. 66
If the agent knows that the statement is false, he is liable; but if he believes it to be true, he is not liable.
It matters not in respect of the principal and the agent which of them possesses the guilty knowledge or
which of them makes the incriminating statement. If between them the misrepresentation is made so as
to induce the wrong, and thereby damage is caused, it matters not which is the person who makes the
representation or which is the person who has the guilty knowledge. 67
B The principal thinks the representation to be true.
(I) He authorizes it to be made. When
(i) the agent knows at the time, or finds out afterwards, that it is false, the principal is liable; 68
(ii) the agent thinks it to be true—here the principal is not liable.
(II) The agent makes the representation in the general course of his employment, but without any special
authorization. When
(i) the agent knows it is false, the principal is liable. 69 It is not necessary that the principal should have
derived any benefit from the fraud of his agent; 70
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(ii) the agent thinks it to be true—the principal is not liable.
Thus, we find that the principal is liable in all possible cases except when both he and his agent believe the latter's
misrepresentation to be the truth. 71
When a man has made a statement untrue to his knowledge to induce another, whom he does not believe to know
its untruth, to act upon it, and that other has acted upon it, in ignorance and to his damage, the maker of the false
representation is not allowed to protect himself by proving that an agent of the other knew of the untruth. 72
The plaintiff, having for some time, on a guarantee of defendants, supplied D, a customer of theirs, with oats on
credit, for carrying out a Government contract, refused to continue to do so unless he had a better guarantee. The
defendants’ manager thereupon gave him a written guarantee to the effect that the customer's cheque on the bank
in plaintiff's favour, in payment of the oats supplied should be paid, on receipt of the Government money in priority
to any other payment “except to this bank.” D was then indebted to the bank in the amount of 12,000, but this fact
was not known to the plaintiff nor was it communicated to him by the manager. The plaintiff, thereupon, supplied the
oats to the value of 1,227. The Government money, amounting to 2,676, was received by D and paid into the bank;
but D's cheque for the price of the oats drawn on the bank in favour of the plaintiff was dishonoured by the
defendants, who claimed to detain the whole sum of 2,676, in payment of D's debt to them. The plaintiff having
brought an action for false representation, it was held (1) that there was evidence to go to the jury that the manager
knew and intended that the guarantee should be unavailing and fraudulently concealed from the plaintiff the fact
which would make it so; and (2) that the defendants would be liable for such fraud. 73 An officer of a banking
corporation, whose duty it was to obtain the acceptance of bills of exchange in which the bank was interested,
fraudulently, but without the knowledge of the president or directors of the bank, made a representation to A, which,
by omitting a material fact, misled A, and induced him to accept a bill in which the bank was interested, and A was
compelled to pay the bill; it was held that A could recover from the bank the amount so paid, and that in an action of
deceit, the fraud of the agent might be treated for the purpose of pleading as that of the principal. 74 In Fauntleroy
forgery case, Fauntleroy, who was a partner in the banking house of Marsh & Co., forged powers-of-attorney for the
sale of stock belonging to the customers of the bank. Marsh & Co. had an account with Martin, Stone & Co., and
the broker who sold the stock under the forged powers-ofattorney remitted the proceeds of the sale to the credit of
Marsh & Co., with Martin, Stone & Co. Fauntleroy then drew out these moneys by a cheque signed by him in the
name of his firm, and applied them to his own use. The firm of Marsh & Co. was, however, held liable for them,
although none of the partners except Fauntleroy had any hand in the forgeries or frauds, or in fact knew anything of
what had taken place. 75
The defendant was a solicitor practising in London with a branch office at another town which was managed by C.
The plaintiffs were induced by a fraud to which C was a party to advance money to a person alleged by C to be a
client of the branch on mortgage of freehold property. The supposed title to the property was fictitious and the title
deeds were forgeries. No allegation was made against the solicitor but the plaintiffs claimed damages for fraud on
the basis that the solicitor was responsible for the fraud of his agent. It was held that notwithstanding the fact that
the persons defrauded were not clients of the solicitor and that C's fraud involved the uttering of a forgery the
solicitor was answerable in damages for it. 76
3. MALICIOUS FALSEHOOD
The tort of Malicious Falsehood, also known as Injurious Falsehood, consists in false statements concerning the
plaintiff made to other persons which causes loss to the plaintiff by the actions of those other persons. Deceit, as
already seen, consists in false statement made to the plaintiff directly or indirectly which induces him to act on the
statement and suffer loss.
In an action for malicious falsehood the plaintiff has to prove that the statement was false, that it was maliciously
made and that the plaintiff has suffered special damage. 77 “The malice essential to support the action is some
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dishonest or otherwise improper motive. Such a motive will be inferred on proof that the words were calculated to
produce actual damage, and that the defendant knew that they were false when he published them, or was
recklessly indifferent as to whether they were false or not.” The above statement of the law which appears in Gaitley
on Libel and Slander (8th edition, 1981) in the chapter dealing with malicious falsehood was approvingly quoted by
the Court of Appeal. 78 It was also held in the same case that, if the defendant is able to establish that he honestly
or positively believed in the truth of what was published, the action will fail for want of malice although the statement
was false or untrue. 79
According to the High court of Australia this tort has four elements : a false statement, publication of that statement
by the defendant to third person, malice on the part of the defendant, and proof by the plaintiff of the actual damage
suffered as a result of the statement. 80 Malice will be established by showing either that the defendant intended to
cause the harm or that the harm be the natural and probable result of the publication of the statement. 81
The torts of slander of title and slander of goods, already discussed in Chapter XVII, are but particular types of the
tort of malicious falsehood. But the tort of malicious falsehood is not confined to those types and a false statement
concerning the plaintiff but not relating to his property will be covered by the tort if all its ingredients are satisfied. 82
The tort of malicious falsehood is also to be distinguished from the tort of defamation which provides the remedy for
words which injure the plaintiff's reputation. Words which injure the plaintiff without injuring his reputation would be
covered by the tort of malicious falsehood and would be outside the tort of defamation. But both these torts may
overlap. If a false statement concerning the plaintiff is maliciously made causing him financial damage and also
affects his reputation, the plaintiff will have a cause of action for malicious falsehood and also for defamation
although he cannot recover damages twice over for the same loss. 83
In addition to damages for the special damage alleged by the plaintiff e.g. loss of employment, the court may award
aggravated damages for additional injury to the plaintiff's feelings caused by the defendant's conduct both before
and after the institution of the suit for malicious falsehood affecting reputation is a species of defamation. 84
In England, the plaintiff is relieved of alleging or proving special damage by section 3 of the Defamation Act, 1952
“(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are
published in writing or other permanent form, or (b) if the said words are calculated to cause pecuniary damage to
the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the
publication.” There is no corresponding legislative enactment in India.
4. NEGLIGENT MISSTATEMENT
Although there was an earlier authority that damages could be claimed for negligent misstatement, 85 the view that
prevailed after Derry v. Peak 86 was that there could be no liability for a misstatement which was not dishonest.
But it was recognised that negligent misstatement could give rise to liability in contract and also when the parties
were in fiduciary relationship. 87 In other words, it was understood that a contract or a fiduciary relationship could
alone impose a duty of care not to make a negligent misstatement. However, the HOUSE OF LORDS, in the case
of Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd ., 88 ruled that a duty of care not to make a negligent
misstatement could exist apart from contract or fiduciary relationship. The facts of this case were that the plaintiffs
who were advertising agents had entered into various advertising contracts on behalf of a company Easipower Ltd.
The plaintiffs were anxious to know the financial position of Easipower Ltd. to decide whether they could give credit
to that company. The plaintiffs with this object sought Banker's references about Easipower Ltd. The Plaintiffs’
Bankers for this purpose approached the defendant, the Bankers of Easipower Ltd., who gave favourable
references which were passed on to the plaintiffs. Placing reliance on those references, the plaintiffs incurred
expenditure on Easipower Ltd. which later went into liquidation causing substantial loss to the plaintiffs. The
references were expressly given by the defendants “without responsibility.” In their claim for damages, the plaintiffs
contended that the defendants’ replies regarding Easipower's creditworthiness were given in breach of their duty of
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care. The trial Judge dismissed the claim holding that the defendants owed no duty to the plaintiffs although they
were careless in giving the replies about Easipower's standing. The Court of Appeal also took the same view. The
HOUSE OF LORDS held that the defendants owed a duty of care to the plaintiffs but they were not liable as the
replies that they gave were expressly given “without responsibility”. The case holds that the duty to take care is not
limited to situations where there was a contract or fiduciary relationship between the parties but extends to other
situations. In the words of LORD REID, “the duty will exist where it is plain that the party seeking information or
advice was trusting the other to exercise such a degree of care as the circumstances required, where it was
reasonable for him to do that and where the other gave the information or advice when he knew or ought to have
known that the inquirer was relying on him.” 89 LORD MORRIS with whom LORD HODSON agreed in the same
case said: “If in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his
skill or his ability to make careful inquiry, a person takes it upon himself to give information or advice to or allows his
information or advice to be passed on to another person, who, as he knows or should know, will place reliance upon
it then a duty of care will arise.” 90
A restricted view of Hedley Byrne & Co.’s case was taken by a majority of the Privy Council in Mutual Life and
Citizens Assurance Co. Ltd. v. Eratt . 91 In this case, the appellant, an insurance company gave to the respondent
information and advice as to the financial affairs of an associated company. The respondent invested money on this
advice and lost the investment. The Privy Council by majority held the appellant company not liable as its business
did not include giving advice on investments and as it did not claim to have necessary skill and competence to give
such advice and to exercise the necessary diligence to give reliable advice. According to this decision, the duty of
care held to exist in Hedley Byrne & Co.’s case is confined to those cases where the person giving advice does in
the course of his business or profession although gratuitously or the person advising makes it known to the person
seeking advice that he has that standard of skill or knowledge which persons carrying on business in that subject
are expected to possess. This Privy Council decision has attracted serious criticism, 92 particularly in the light of
the formidable dissenting opinion of LORD REID AND LORD MORRIS who were both members of the Appellate
Committee in Hedley Byrne .
Hedley Byrne & Co's case was applied by the HOUSE OF LORDS in Smith v. Eric S. Bush (a firm) . 93 The criteria
applicable to decide as to in what circumstances the assumption of responsibility by those who give advice to the
person who acts on the advice must be deemed to arise in law or, in other words, in what circumstances should the
duty of care be owed by the adviser to those who act on his advice were laid down by LORD GRIFFITH as follows :
“Only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, that there is sufficient
proximate relationship between the parties and that it is just and reasonable to impose the liability.” 94 Smith's case
related to the duty of a valuer in two typical cases of house purchase. In one case, the purchaser applied to a
building society for a mortgage to enable her to purchase a house. The society acting under a statutory requirement
to obtain valuation of the house instructed a firm of surveyors to value the house. The purchaser paid the society an
inspection fee for the valuation. The purchaser signed an application that the society would provide her with a copy
of the report and mortgage valuation made by the surveyor. The application form contained a stipulation that neither
the society nor its surveyor warranted that the report and valuation would be accurate and that the report and
valuation would be supplied without any acceptance of responsibility. The report valued the house at 16,500 and
stated that it needed no essential repairs. The purchaser purchased the house for 18,000 after getting an advance
of 3,500 from the society. The surveyors were negligent in their inspection and valuation. Eighteen months after the
valuation, the Chimney of the house collapsed causing considerable damage. The purchaser sued the surveyors for
damages. In the other case, the purchasers applied to a local authority for a mortgage to enable them to purchase a
house. The local authority acting under a statutory requirement to value the house instructed their valuation
surveyor to value the house. The purchaser paid the valuation fee and signed an application form which stated that
the valuation was confidential and intended solely for the local authority and that no responsibility was implied or
accepted by the local authority for the value or condition. After receiving the surveyor's report the local authority
offered to advance 90% of the asking price of 9,450. The purchasers, assuming that the house was atleast worth
that amount, purchased it for 9,000 without an independent survey. Three years later it was discovered that the
house was subject to settlement and was virtually unsaleable and could be repaired, if at all, at a cost of more than
the purchase price. The surveyors of the local authority were negligent in making the valuation. The purchaser sued
the local authority for damages. The essential distinction between the Hedley Byrne & Co.’s case and the two cases
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considered in Smith's case was that in Hedley Byrne & Co.’s case the advice was given with the intention of
persuading the recipient to act on the information whereas in the two cases in Smith's case the purpose of the
valuation report was to advise the recipient i.e. the mortgagee society or the local authority but with the knowledge
that the purchaser would in all probability act on the valuation although that was not its primary purpose. Another
distinction was the applicability of the Unfair Contract Terms Act, 1977 which was not on the statute book when
Hedley Byrne & Co.’s case was decided. But applying the criteria mentioned above it was held that a surveyor
valuing a small house for a building society or a local authority owed a duty of care to the purchaser. In holding so
LORD GRIFFITH observed : “If the valuation is negligent and is relied on damage in the form of economic loss to
the purchaser is obviously foreseeable. The necessary proximity arises from the surveyor's knowledge that the
overwhelming probability is that the purchaser will rely on his valuation, the evidence was that the surveyor knew
that approximately 98% of the purchasers did so, and from the fact that the surveyor only obtains the work because
the purchaser is willing to pay his fee. It is just and reasonable that the duty should be imposed for the advice is
given in a professional as opposed to a social context and the liability for the breach will be limited both as to its
extent and amount. The extent of liability is limited to the purchaser : I would not extend it to subsequent
purchasers. The amount of liability cannot be great for it relates to a modest house”. 95 The application forms
containing disclaimer of liability amounted to notice and the next question was whether the disclaimer was valid
under the provisions of the Unfair Contract Terms Act, 1977 96 which requires the condition of reasonableness for
validity of a notice of disclaimer. Having regard to the high costs of houses and the high interest rates, it was held
that it would not be fair and reasonable for mortgagees and valuers to impose on purchasers the risk of loss arising
as a result of incompetence or carelessness of valuers. The disclaimers were, therefore, held to be ineffective. It
was, however, observed that different considerations may prevail in respect of industrial property, large blocks of
flats or very expensive houses where prudence would seem to demand that the purchaser should obtain his own
survey to guide him.
In Caparo Industries Plc v. Dickman , 97 the HOUSE OF LORDS held that the auditor of a public company's
account owed no duty of care to a member of the public at large or to an individual shareholder who relies on the
accounts to buy shares in the company. It was pointed out that the auditor's statutory duty to prepare accounts was
owed to the body of shareholders as a whole to enable it to exercise informed control of the company and not to
enable individual shareholders to buy shares with a view to profit. It was also explained that what can be deduced
from the Hedley Byrne case is that the necessary relationship between maker of a statement or giver of advice and
the recipient who acts in reliance on it may be held to exist where (1) the advice is required for a purpose, whether
particularly specified or generally described which is made known, either actually or inferentially, to the adviser at
the time when the advice is given (2) the adviser knows, either actually or inferentially, that the advice will be
communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be
used by the advisee for that purpose; (3) it is known, either actually or inferentially, that the advice so
communicated is likely to be acted on by the advisee for that purpose without independent enquiry and (4) it is so
acted on by the advisee to his detriment. 1
In Van Oppen v. Clark to the Bedford charity Trustees , 2 the Court of Appeal was of the view that the principle of
Hedley Byrne & Co.’s case can be applied to a pure omission consisting of failure to speak by A resulting in
economic loss to B provided there has on the facts been a voluntary assumption of responsibility by A and reliance
on that assumption by B. In that case, it was held that the proximity which existed between a school and a pupil did
not give rise to a general duty on the part of the school to have regard to the pupil's economic welfare and so there
was no duty on the school to inform the pupil's parents of the risk of injury while playing sport or to advise the
parents of the need to take out personal accident insurance. In Deloitte Haskins Et Sells v. National Mutual Life
Nominees Ltd . 3 it was held by the Privy Council that the Auditor of a deposit taking company who was under a
statutory duty to report to the trustee of the unsecured depositors if he became aware of any matter that “in his
opinion” was relevant to the exercise of the Trustee's powers or duties was not under a common law duty to notify
the company's probable insolvency when a prudent auditor would have done so and that the words ‘in his opinion’
suggested a subjective rather than an objective test to report only after he had in fact formed that opinion.
As in all cases of negligence, 4 the criteria for determining liability arising out of negligent misstatement are
foreseeability of harm, proximity of relationship and whether it would be just and reasonable to impose the liability
and also whether the case in hand falls within one of the categories where liability has been recognised and if not
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whether the case bears such an analogy with the recognised categories that a justifiable increment can be made to
cover the case. 5 For example, in Punjab National Bank v. de Boinville 6 the Court of Appeal held that it was a
justificable increment to hold that an insurance broker owes a duty of care to the specific person who he knows is to
become an assignee of the policy, at all events if that person actively participates in giving instructions for the
insurance to the broker's knowledge. Further, in Spring v. Guardian Assurance Plc 7 the House of Lords held that
an employer apart from any contract owed a duty of care to his former employee to take reasonable care in giving
character reference to the new employer. This point was not covered by any earlier authority. 8 The
employer/employee relationship is an obvious proximity relationship and it is also foreseeable that a careless
reference will cause economic loss to the employee from failure to obtain employment. It was, therefore, held that it
was fair, just and reasonable that the law should impose a duty of care on the employer not to act unreasonably
and carelessly in providing a reference about his employee. The duty is to avoid making untrue statements
negligently or expressing unfounded opinions even if honestly believed to be true or honestly held and this liability
in negligence exists apart from the question whether the employer is or is not liable for the torts of defamation or
malicious falsehood.
In Henderson v. Merrett Syndicates Ltd . 9 it has been held by the House of Lords that an assumption of
responsibility by a person rendering professional or quasi -professional services coupled with a concomitant
reliance by the person for whom the services were rendered was itself sufficient without more to give rise to a
tortious duty of care irrespective of whether there was a contractual relationship between the parties. In such a
case, unless the contract provided otherwise, a plaintiff having concurrent remedies in contract and tort was entitled
to choose that remedy which appeared to him to be most advantageous. 10
In Williams v. Natural Life Health Foods Ltd. , 11 the House of Lords deduced the following four governing
principles from the speech of Lord Goff in Henderson's case: (1) The assumption of responsibility principle in the
Hedley Byrne case is not confined to statements but may apply to any assumption of responsibility for the provision
of services. The extended Hedley Byrne principle is the rationalisation or technique adopted by English Law to
provide a remedy for the recovery of damages in respect of economic loss caused by the negligent performance of
services. (2) Once a case is identified as falling within the extended Hedley Byrne principle, there is no need to
embark on any further enquiry whether it is ‘fair, just and reasonable’ to impose liability for economic loss. (3)
Reliance on the assumption of responsibility by the other party will be necessary to establish a cause of action,
because otherwise negligence will have no causative effect. (4) Existence of a contractual duty of care between the
parties does not preclude the concurrence of a tort duty in the same respect. 12 It was held in William's case that a
director of a limited company would only be personally liable for the loss to the plaintiffs for the negligent advice
given by the company if he had assumed personal responsibility for that advice and the plaintiffs had relied on that
assumption of responsibility.
The duty of care in giving professional advice may be owed not only to the recipient of the advice but in some cases
also to his dependants. Thus solicitors may be liable for negligence in preparation of a will which deprives the
dependants of the estate which they would have got had there been no negligence. 13 That principle has been
extended by the court of appeal to the advice rendered by an insurance company. It was held in Gorham v. British
Telecommunication plc , 14 that it is fundamental to the giving and receiving of advice upon a scheme for pension
provision and life insurance that the interest of the customers dependants would be taken into account and practical
justice required that in case of negligence in that matter the disappointed beneficiaries should have a remedy
against the insurance company.
If the advice or report by professional persons is to be statutorily used by the recipient for the benefit of a third
person such a third person may have a cause of action against the professional person concerned and the recipient
of the advice may also be held vicariously liable. 15
In Australia in Tepko Pty Ltd. v. Water Board , 16 it has been held: (1) To attract a duty of care in the case of
negligent misstatement giving rise to economic loss there must be (i) known reliance and/or an assumption of
responsibility on the part of the person making the statement and (ii) the circumstances must be such that it is
reasonable for the recipient to accept and rely on the statement. (2) Known reliance includes circumstances in
Page 12 of 20
which reliance ought to have been known. (3) The person making the statement must know that the statement will
be used for a serious purpose.
It seems also clear that there will be no liability when advice or information is given on a purely social occasion for
on such an occasion neither the person receiving advice or information nor the person giving advice or information
forsees any legal responsibility. Further, subject to the requirement of reasonableness imposed by the Unfair
Contract Terms Act, 1977 as held in Smith's case, 17 there would be no liability when the person giving advice or
information makes it clear that he accepts no responsibility for his advice or statement. 18
1
Polhill v. Walter , (1832) 3 B & Ad 114.

2
Green v. Nixon , (1857) 23 Beav 530, 535.

3
Pusley v Freeman , (1789) 3 T R 51, 2 Sm L C (13th Edn.) 59.

4
Polhill v. Walter, Supra .

5
Bradford Building Society v. Borders , (1941) 2 All ER 205, 211 64 LJ Ch 759 : 73 LT 753.
6
A.L.N. Narayanan Chettiar v. Official Assignee , High Court, Rangoon , AIR 1941 PC 93; Union of India v.
Chaturbhai M. Patel & Co . (M/s.), (1976) 1 SCC 747 [LNIND 1975 SC 804] (749) : AIR 1976 SC 712.
7
(1889) 14 App Cas 337, 374, 375, 376 : 38 WR 33 : 61 LT 265. See Tackey v. Mc Bain, (1912) AC 186.
8
Derry v. Peek , (1889) 14 App Cas 337 : 61 LT 265 : 38 WR 33.

9
Ibid .
10

11
PER LORD CAIRNS in Peek v. Gurney , (1873) LR 6 HL 377, 403.

12
PER LORD CHEMSFORD in ibid ., p. 392.

13
S. Chatterjee v. K.L. Bhave (Dr.) , AIR 1960 MP 327, following Aarons Reefs Ltd. v. Twiss, (1896) AC 273.
14
Ibid , following Marnham v. Weaver, (1899) 80 LT 412.

Page 13 of 20
15
Ward v. Hobbs , (1878) 4 App Cas 13, 26 : 40 LT 73 : 27 WLR 114.

16
Nocton v. Ashburton (Lord), (1914) AC 932 : 30 TLR 602; Haji Ahmad Khan v. Abdul Gani Khan , ILR 1937
Nag 299.
17
Haji Ahmad Khan v. Abdul Gani Khan, ibid . In this case the plaintiff and the defendant entered into an
agreement for the marriage of their son and niece, respectively, and the plaintiff spent Rs. 217 on a certain
ceremony. The plaintiff then discovered that the girl had suffered from epileptic fits during her childhood and
so broke off the engagement and sued for restitution of the Rs. 217 he had so spent. It was held that the
contract was one uberrimae fidei and so there was a duty cast on the defendant to disclose all material
defects of which he was aware, and that since the case was of passive non-disclosure and since no
question of deceit arose the plaintiff was entitled to rescission of the contract with a right to restitution and
not damages. See further : Augustine v. Kunjamma Kuriakose, AIR 2001 Madras 480 [LNIND 2001 MAD
756]. In this case the husband was impotent which fact he suppressed from the wife. After the marriage
was declared void on this ground under the Divorce Act, the wife sued for damages on the ground of fraud
which was allowed.
18
Pasley v. Freeman , (1789) 3 TR 51.

19
Ibid .
20
Mullett v. Mason , (1866) LR 1 CP 559. See Pickering v. Dewson , (1813) 4 Taunt 779, 785.
21
Ward v. Hobbs, (1877) 3 QBD 150 : 43 JP 252 : 27 WR 114.

22
Schneider v. Heath , (1813) 3 Camp 506.

23
Smith v. Chadwick , (1884) 9 App Cas 187, 203.

24
PER LORD HERSCHELL in Derry v. Peek , (1889) 14 App Cas 337; 375; United Motor Finance Co. v.
Addison & Co. Ltd ., (1936) Bom LR 706 (PC).
25
Akerhielm v. De Mare , (1959) 3 All ER 485 : (1959) AC 789 : (1959) 3 WLR 108.
26
Angus v. Clifford, (1891) 2 Ch 449.

27
Praill v. Baring , (1864) 4 De G J & S 318.

Page 14 of 20
28
Derry v. Peek , (1889) 14 App Cas 337 : 38 WR 33.

29
Seton v. Lafone, (1887) 19 QBD 68 : 35 WR 749 : 3 TLR 624.

30
PER MAULE, J. in Evans v. Edmonds, (1853) 13 CB 777, at p. 786, as quoted by NAIK J. in S. Chatterjee
v. Dr. K.L. Bhave , AIR 1960 MP 327 .
31
Derry v. Peek , (1889) 14 App Cas 337 : 38 WR 33 : 61 LT 265. In Angus v. Clifford, (1891) 2 Ch 449, the
directors of a company for purchasing and working a mine issued a prospectus containing a statement that
the reports of certain engineers therein mentioned were “prepared for the directors.” The reports were
appended to the prospectus, and gave a very favourable account of the mine. The reports were, in fact,
prepared for the vendors of the mine. The plaintiff took shares on the faith of the prospectus, and the
shares having greatly fallen in value, he brought an action of deceit against the directors. It was held that
the directors were not liable for misrepresentation as they had no intention to deceive, and used the
expression “prepared for the directors” carelessly.
32

33
Dickson v. Reuter's Telegraph Co ., (1877) 3 CPD 1.

34

35
Swift v. Winterbothom , (1873) LR 8 QB 244, 253; Richardson v. Silvester , (1873) LR 9 QB 34

36
Langridge v. Levy , (1837) 2 M & W 519. This decision turns on the fact that the representation was made
with a view that the plaintiff should be one of the persons acting upon it; so that the case would have been
altered had the injured person been a mere stranger who had found the gun lying idle, and had taken it up
and fired it, and been hurt thereby. Lord Esher criticises this case in Heaven v. Pender, (1883) 11 QBD
503, (at pp. 511-12) suggesting that the plaintiff might have recovered solely on the ground of negligence.
37
Langridge v. Levy , (1837) 2 M & W 519.

38
S. Pearson & Son., Ltd. v. Dublin Corporation, (1907) AC 351 : 77 LJ PC 1.

39
Barry v. Croskey , (1861) 2 J & H 1.

40
Arkwright v. Newbold , (1881) 17 Ch D 301, 324.

Page 15 of 20
41
Horsfall v. Thomas , (1862) 1 H & C 90.

42
ITC Ltd. v. Phurba Lama , AIR 1992 Sikkim 34 p. 45.

43
Pasley v.Freeman , (1789) 3 TR 51, 56, 82 Sm LC 51.

44
Barry v. Croskey , (1861) 2 J & H 1.

45
Redgrave v. Hurd , (1881) 20 Ch D 1; Dobell v. Stevens , (1825) 3 B & C 623.

46
Shri Krishnan v. Kurukshetra University, (1976) 1 SCC 311 [LNIND 1975 SC 446] (p. 316.) : AIR 1976 SC
376 (Case under Art. 226 for quashing cancellation of candidature for LL.B. examination.) .
47
WINFIELD & JOLOWICZ, (12th Edn.) p. 268.
48
S. Pearson & Son Ltd. v. Dublin Corporation, (1907) AC 351, p. 360 : 77 LJ PC 1.

49
George v. Skivington , (1869) LR 5 Ex 1. In Longmeid v. Holiday , (1851) 6 Ex 761, the defendant was the
maker and seller of certain lamps called. “The Holiday Lamp.” A person bought a lamp to be used by his
wife and himself in his shop. When the wife attempted to use the lamp, it exploded and injured her. It
appeared that the accident arose from the defective construction of the lamp, but the defendant did not
know of it. In an action for damages by the wife it was held that she could not maintain an action, there
being no misfeasance towards her independently of the contract, which was with the husband alone.
50
Denton v. G.N. Ry. Co ., (1856) 5 E & B 860.

51
Scott v. Dixon , (1859) 29 LJ Ex 62, cited in a note to Bedford v. Bagshaw , (1859) 29 LJ Ex 59; Barry v.
Croskey , (1861) 2 J & H 1.
52
Standard Chartered Bank v. Pakistan National Shipping Corp. , (2003) 1 All ER 173 (HL).
53
Richardson v. Silvester , (1873) LR 9 QB 34.

54
Peek v. Gurney , (1873) LR 6 HL 377. See Tackey v. Mcbain, (1912) AC 186.

55
Page 16 of 20
Andrews v. Mockford, (1896) 1 QB 372 : 65 LJQB 302 : 73 LT 726.

56
Pasley v. Freeman , (1789) 3 TR 51.

57
Statute of Frauds Amendment Act, 1828 (9 Geo. IV, c. 14, s. 6 .).
58
Mullet v. Mason , (1866) LR 1 CP 559. Where the plaintiff's property was fraudulently transferred, he was
held entitled to recover the damage or loss which he sustained on account of such fraudulent transfer from
the actual transferor, and from the person who was found to have been the prime mover and instigator in
the transaction as well as from his own agent who consented to such transfer and the purchaser who, being
aware of circumstances sufficient to create suspicion, dealt with persons who had no authority to sell:
Wharton v. Moona Lall , (1866) 1 Agra HC 96. The plaintiff can recover all losses flowing from deceit
including unforeseeable losses : Royscot Trust Ltd. v. Rogerson, (1991) 3 WLR 57 : (1991) 3 All ER 294 :
(1991) 2 QB 297 (CA); East v. Maurer, (1991) 1 WLR 461 : (1991) 2 All ER 733 (CA).
59
Firbank's Executors v. Humphreys, (1886) 18 QB 54; Sha Karamchand v. Sheth Ghelabhai, (1896) PJ 335.
60
(1996) 4 All ER 769 : (1994) 1 WLR 1271 (HL).

61
Ibid , pp. 778, 779.

62
Ibid.
63
Ibid.
64
Mullet v. Mason , (1866) LR 1 CP 559. See Hill v. Balls , (1857) 27 LJ Ex 45, where a similar action was
brought by a man who purchased a horse afflicted with glanders and believing it to be healthy put it into his
stable with another horse that became infected and died of the disease.
65
See Chapter VIII, title 2(A) ii(b)(vi), pp. 169 to 172.
66
Cornfoot v. Fowke , (1841) 6 M & W 358. This case did not decide that the principal and agent could be so
divided in responsibility that like the schoolboy's game of “I did not take it, I have not got it” – the united
principal and agent might commit fraud with impunity : per Earl of Halsbury in S. Pearson & Sons Ltd. v.
Dublin Corporation, (1907) AC 351, 357 : 77 LJ PC 1. See London County etc., Properties v. Berkely
Property Co ., (1936) 2 All ER 1039 : 155 LT 190 : 80 SJ 652, where it is held that a Corporation is liable for
the fraudulent statement of its agent, even if the Corporation is innocent. See Dehra Dun Mussorie Electric
Tramway Co. v. Hansraj , (1935) ILR 58 All 342.
67
Per Earl of Halsbury in S. Pearson & Sons Ltd. v. Dublin Corporation, (1907) AC 351, 358 : 77 LJPC 1.
Page 17 of 20
68
Barwick v. The English Joint Stock Bank , (1867) LR 2 Ex 259.

69
Udell v. Atherton , (1861) 7 H & N 172, 181.

70
Lloyd v. Grace Smith & Co ., (1912) AC 716. Lloyd's case is followed in Dinabandhu Saha v. Abdul Latif
Mola , (1922) ILR 50 Cal 258, which dissents from the earlier case of Gopal Chandra Bhattacharjee v.
Secretary of State for India , (1909) ILR 36 Cal 647, which was based on Barwick's case: Swire v. Francis ,
(1877) 3 App Cas 106.
71
See Fraser, 153.
72
Wells v. Smith, (1914) 3 KB 722, 725 : 111 LT 809 : 30 TLR 623.

73
Barwick v. English Joint Stock Bank , (1867) LR 2 Ex 259.

74
Mackay v. Commercial Bank of New Brunswick , (1874) LR 5 PC 394.

75
Stone v. Marsh , (1827) 6 B & C 551; Marsh v. Keating , (1834) 1 M & A 592, 2 C & F 250; Ex parte Bolland
: In re Marsh , (1828) Mont & M 315; Hume v. Bolland , (1832) 1 Cr & M 130.
76
Uxbridge Permanent Benfit Building Society v. Pickard, (1939) 2 KB 248 : (160) LT 407 : (1939) 2 All ER
344.
77
Joyce v. Sengupta , (1993) 1 All ER 897 (CA), p. 901 : (1993) 1 WLR 337 : (1993) 142 NLJ 1306.
78
Spring v. Guardian Assurance Plc , (1993) 2 All ER 273 (CA), p. 288 : (1993) 143 NLJ 365.
79
Ibid., pp. 287, 288.

80
Palmer Brvyn & Parker Pty. Ltd. v. Parsons , (2001) 76 ALJR 163.
81
Ibid.
82
Joyce v. Sengupta, supra .

83
Page 18 of 20
Ibid .
84
Khodaparast v. Shad , (2000) 1 All ER 545 : 61 LT 265 : 38 WR 33 (CA). The case has been noticed by the
House of Lords in Gregory v. Portsmouth City Council , (2000) 1 All ER 560, p. 570 (HL). See also pp. 333,
334, ante.
85
Cann v. Willson , (1888) 39 Ch D 39.

86
(1889) 14 AC 337 : (2000) 1 WLR 618 (HL).

87
Nocton v. Lord Ashburton, (1914) AC 932 : 30 TLR 602 (HL).

88
(1964) AC 465 : (1963) 3 WLR 101 : (1963) 2 All ER 576 (HL).

89
Ibid.
90
Ibid.
91
(1971) AC 793 : (1971) 2 WLR 23 (PC).

92
Spring v. Guardian Assurance Plc , (1994) 3 All ER 129 (HL) P. 147 (J) : (1994) 3 WLR 354 : (1995) 2 AC
296.
93
(1989) 2 All ER 514 : (1990) 1 AC 831 (HL).

94
Ibid. , p. 536 (According to LORD TEMPLEMAN there was assumption of responsibility as the relationship
between the valuer and the purchaser was akin to a contract; p. 522).
95
Ibid. , p. 536.
96
See Chapter XIX, title 11, p. 620. It has been reiterated by the House of Lords that a valuer negligently
substantially overvaluing properties for loans advanced by a bank on security of the properties is liable to
the extent of loss suffered as a result of the transaction going ahead on incorrect valuation by comparing
the valuation negligently made and the correct property value at the time of valuation, i.e. , the figure which
a reasonable valuer, using the information available at the relevant time, would have put forward as the
amount which the property was most likely to fetch if sold in the open market. But the valuer is not liable for
the amount of the lender's loss attributable to the fall in the property market for the scope of duty owed by
the valuer was not in respect of this kind of loss: South Australia Asset Management Corp. v. York
Page 19 of 20
Montague , (1996) 3 All ER 365 (HL). But the circumstances may make the valuer liable for the entire loss
including loss attributable to fall in market when the security is realised on default of the borrower: Kenny
and Good Pty. Ltd. v. MGICA , (1999) 73 ALJR 901. Damages may be reduced if the plaintiff is guilty of
contributory negligence on account of imprudent lending : Platform Home Loans Ltd. v. Oysten Shipways
Ltd. , (1998) 4 All ER 252 (CA). See further another case of valuer on the questions as to when cause of
action arises and liability for payment of interest on the damages: Hykredit Mortgage Bank Plc v. Edward
Erdman Group Ltd. (No.2), (1998) 1 All ER 305 (HL).
97
(1990) 1 All ER 568 : (1990) 2 AC 605 (HL).

1
Ibid. , p. 589. Caparo case applied in James Macnaughton Paper Group Ltd. v. Hicks Anderson & Co .,
(1990) 2 WLR 641 (CA); Goodwill v. British Pregnancy Advisory Service , (1996) 2 All ER 161 (CA);
distinguished in Morgan Crucible Co. Plc v. Hill Samuel & Co. Ltd ., (1991) 2 WLR 655 : (1991) Ch 295
(CA).
2
(1989) 3 All ER 389 (CA). For other cases of Court of Appeal See : Esso Petroleum Co. Ltd. v. Mordon,
(1976) QB 801; (1976) 2 All ER 5; Howard Marine & Dredging Co. Ltd. v. A Ogden & Sons , (1978) 2 All ER
1134 : (1978) QB 574 (CA); JEB Fasteners Ltd. v. Marks Bloom & Co ., (1983) 1 All ER 583 (CA); Cornish
v. Midland Bank , (1985) 3 All ER 513 (CA); Chaudhry v. Prabhakar , (1988) 3 All ER 718 (CA).
3
(1993) 2 All ER 1015 (PC), p. 1022 : (1993) AC 774 : (1993) 3 WLR 347.
4
See Chapter XIX, title 1(B)(ii), pp. 495, 496.
5
Ibid , p. 495. See further Caparo Industries Plc v. Dickman , (1990) 1 All ER 768 (HL), pp. 573, 574.
6
(1992) 3 All ER 104 (CA) p. 118 : (1992) 1 WLR 1138 : (1992) 1 Lloyd's Rep 7.
7
(1994) 3 All ER 129 : (1995) 2 AC 296 : (1994) 3 WLR 354 (HL).

8
Ibid. , p. 159 (b, c).

9
(1994) 3 All ER 506 : (1995) 2 AC 145 : (1994) 3 WLR 761 (HL).

10
Ibid.
11
(1998) 2 All ER 577 (HL).
12
Ibid., p. 581.
Page 20 of 20
13
See, p. 524.
14
(2000) 4 All ER 867 (CA).
15
See Phelps v. Hillington London Borough Council , (2000) 4 All ER 504 (HL). (For this case see, p. 558);
Law Society v. KPMG, (2000) 4 All ER 540 (CA).
16
(2001) 75 ALJR 775. See further Dr. Norman A Katter ‘Ball Park’ Figures and the Ambit of Duty of care for
the Negligent Misstatement , (2001) 75 ALJ 427.
17
(1989) 2 All ER 514 (HL).
18
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd ., (1964) AC 465 : (1963) 3 WLR 101 : 107 SJ 454 (HL).
End of Document
(IN) Ratanlal & Dhirajlal : The Law of Torts
Ratanlal & Dhirajlal : The Law of Torts > Ratanlal & Dhirajlal : The Law of Torts > APPENDICES
> APPENDIX I
CHAPTER VII-A LIABILITY WITHOUT FAULT IN CERTAIN CASES
Liability to pay compensation in certain cases on the principle of no fault.
(1) 92-A. (1)Where the death or permanent disablement of any person has resulted from an accident
arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the
case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation
in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of
any person shall be a fixed sum of fifteen thousand rupees and the amount of compensation
payable under that sub-section in respect of the permanent disablement of any person shall be a
fixed sum of seven thousand five hundred rupees.
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and
establish that the death or permanent disablement in respect of which the claim has been made
was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles
concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act,
neglect or default of the person in respect of whose death or permanent disablement the claim has
been made nor shall the quantum of compensation recoverable in respect of such death or
permanent disablement be reduced on the basis of the share of such person in the responsibility
for such death or permanent disablement.
COMMENT.—
Section 92 -A in Chapter VII-A creates a new liability. 2 The Supreme Court of India 3 , a number of High
Courts 4 and the Law Commission recommended inclusion of no fault liability. Section 92 -A and other
sections in Chapter VII-A added by Act 47 of 1982 implement these recommendations. The following extract
from the Statement of Objects and Reasons admirably sums up the scope of the provisions in this Chapter. “A
New Chapter VII-A, providing for payment of compensation in certain cases of accidents without proof of fault
or negligence on the part of the owner or the driver of the motor vehicle is being inserted in the Act. Under this
Chapter, the owner of the vehicle involved in an accident will be liable to pay compensation of a fixed sum of
Rs. 15,000 in respect of the death of a person and a fixed sum of Rs. 7,500 in respect of permanent
disablement of any person. For securing this compensation, it will not be necessary to prove any wrongful act
or negligence on the part of the owner or the driver of the vehicle. Right to claim the compensation aforesaid is
without prejudice to any right to claim a higher compensation on the basis of the wrongful act or negligence of
the owner or the driver of the vehicle. However, the compensation payable by an owner on the basis of
wrongful act or negligence on his part would be reduced by the compensation already paid by him under this
Chapter. It has also been provided that the claim for compensation under the Chapter should be disposed of as
expeditiously as possible. The benefit of the provisions of the Chapter would also be available in cases where
compensation is claimed in respect of a motor accident under any other law, as for example the Workmen's
Compensation Act, 1923. It may also be mentioned that the owner of a vehicle will have to insure himself
Page 2 of 4
against liability to third parties under this Chapter to the same extent as he has to insure himself against liability
to third parties in cases where he is in default or negligent.”
In Shivaji Dayanu Patil v. Smt. Vatschala Uttam More , 5 section 92A was liberally construed. In that case a
petrol tanker after colliding with a truck went off the road and fell on its left side. As result of the overturning of
the tanker, the petrol leaked out and collected nearby. After nearly 4 hours an explosion took place resulting in
fire injuring a number of persons assembled near the petrol tank some of whom died. It was held that the
accident arose out of the use of the petrol tanker and damages were awardable under section 92A. The injured
though himself negligent can yet claim compensation under section 92A. 6
The liability created by section 92 -A is not retrospective. Chapter VII-A, including section 92 -A, was inserted
with effect from 1-6-1982. The section is not applicable to accidents taking place before that date. 7 Analogy of
section 92 -A has been adopted in awarding minimum compensation of Rs. 15,000 in preamendment cases
where negligence is established. 8 If there is a policy of Insurance current on the date of the accident, the
Insurance company, subject to defences under section 96, will be liable along with the owner in respect of
liability under section 92 -A 9 if the claim is one which is covered by the policy. 10
As the liability created by section 92 -A is not dependant on fault, if an accident occurs in which two or more
motor vehicles are involved the owners of all of them and their insurers will be jointly and severally liable under
the section and the liability will not be restricted to the owner of the ‘offending vehicle’ meaning thereby the
vehicle which was being driven negligently. 11 The liability without fault under section 92A arises only when
the accident results in death or permanent disablement, but not in other cases. 12
Payment on no fault basis under this section has to be adjusted against the claim on fault basis finally allowed
by the tribunal. 13 The tribunal has a duty to act suo motu under s. 92A. 14
Provisions as to other right to claim compensation for death or permanent disablement.

(1) The right to claim compensation under section 92 -A in respect of death or permanent disablement
of any person shall be in addition to any other right (hereafter in this section referred to as the right
on the principle of fault) to claim compensation in respect thereof under any other provision of this
Act or of any other law for the time being in force.
(2) A claim for compensation under section 92 -A in respect of death or permanent disablement of any
person shall be disposed of as expeditiously as possible and where compensation is claimed in
respect of such death or permanent disablement under section 92 -A and also in pursuance of any
right on the principle of fault, the claim for compensation under section 92 -A shall be disposed of
as aforesaid in the first place.
(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent
disablement of any person, the person liable to pay compensation under section 92 -A is also liable
to pay compensation in accordance with the right on the principle of fault, the person so liable shall
pay the first-mentioned compensation and—
(a) if the amount of the first-mentioned compensation is less than the amount of the second-
mentioned compensation, he shall be liable to pay (in addition the first-mentioned
compensation) only so much of the second-mentioned compensation as is equal to the amount
by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or less than the amount of the
second-mentioned compensation, he shall not be liable to pay the second-mentioned
compensation.
COMMENT.—
Page 3 of 4
Section 92 -B does not rule out a summary enquiry to find out whether the claim is one which is covered by the
policy of insurance and whether there is any defence open to the insurance company before holding it liable for
no fault liability. This is the view taken by a full bench of the Karnataka High Court. 15 The Madhya Pradesh
High Court, however, holds that in the summary enquiry the tribunal will not enquire into the defences open to
the insurance company although it can enquire whether the vehicle concerned was involved in the accident;
but the prima facie view taken in the interim award will not be binding at the time of making the final award after
full enquiry. 16 The Supreme Court has also held that a regular trial under s. 92 -A is not contemplated; but the
tribunal has to satisfy itself that the requirements of the section are satisfied. 17
Permanent disablement.
For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted
from an accident of the nature referred to in subsection (1) of section 92 -A if such person has suffered
by reason of the accident any injury or injuries involving—
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member
or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head or face.
Applicability of Chapter to certain claims under Act 8 of 1923.
The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of
death or permanent disablement of any person under the Workmen's Compensation Act, 1923 (8 of
1923) resulting from an accident of the nature referred to in subsection (1) of section 92 -A and for this
purpose, the said provisions shall, with necessary modification, be deemed to form part of that Act.
Overriding effect.
The provisions of this Chapter shall have effect notwithstanding anything contained in any other
provision of this Act or of any other law for the time being in force.
2
472], p. 245 : AIR 1987 SC 1690. (The section modifies the substantive law).
3
Bishan Devi v. Sirbaksh Singh, 1979 ACJ 496.

4
For example see Kamala Devi v. Kishanchand, 1970 ACJ 310 (MP). Kesavan Nair v. State Insurance
Officer, 1971 ACJ 219 (Kerala).
5

6
K. Nand Kumar v. Managing Director, Thanethal Periyar Transport Corpn ., AIR 1966 SC 1217 : (1966) 3
SCR 706 [LNIND 1966 SC 71].
7
Page 4 of 4
R.L. Gupta v. Jupiter General Insurance Co., 1990 ACJ 280 (SC). See further : Yashoda Kumari v.
Rajasthan State Road Tran. Corpn ., 1984 ACJ 716 (Raj); Ram Mani Gupta v. Mohammad Ibrahim, (1985)
ACJ 476 (All). New India Assurance Co. Ltd. v. Nafis Begum , AIR 1991 MP 302 [LNIND 1991 MP 56]
(FB); Saffia Bee v. B. Sathar, AIR 2000 Mad 167 [LNIND 1999 MAD 417].
8
Sardar Ishwar Singh v. Himachal Puri , AIR 1990 MP 282 [LNIND 1989 MP 154], Bhagwandas v. National
Insurance Ltd ., AIR 1991 MP 235 [LNIND 1990 MP 155].
9
Oriental Fire & Genl. Ins. Co. Ltd. v. Beasa Devi, 1985 ACJ 1 (Punj); Mohammad Iqbal v. Bhimaiah, 1985
ACJ 546 (Karn); Oriental Fire & General Insurance Co. Ltd. v. Aleixo Fernandes , AIR 1986 Bom 280
[LNIND 1985 BOM 101].
10
United India Insurance Co. v. Immam Amina Sab Nadaf , AIR 1990 Knt 156 (FB).
11
Samati Deb Barma v. State of Tripura , (1985) 1 Gauhati LR 420; New India Assurance Co. v. Phoolwati ,
AIR 1986 MP 187 [LNIND 1985 MP 70].
12
Suresh Babu Nath v. Hargovind Batham , AIR 1995 MP 82 [LNIND 1994 MP 106].
13
New India Assurance Co. Ltd., Chandigarh v. Smt. Ind. Kaur , AIR 1986 P&H 153.
14
Mahila Ramdevi v. Nandkumar , AIR 1988 MP 98 [LNIND 1987 MP 123].

15
United India Insurance Company v. Imam Amina Sab Nadaf , AIR 1990 Knt 156 (FB).
16
Dwarika v. Biso , AIR 1990 MP 258 [LNIND 1989 MP 153], p. 262; National Insurance Co. v. Thaglu Singh
, 1994 MPLJ 663.
17
Shivaji Dayanu Patil v. Vatschala Uttam More , AIR 1991 SC 1769 p. 1783 : (1991) 3 SCC 530 [LNIND
1991 SC 727] : (1991) SCC (Cri) 865.
End of Document
> APPENDIX I
CHAPTER VIII INSURANCE OF MOTOR VEHICLES AGAINST THIRD-PARTY RISKS
93. In this Chapter—
Definitions
1[(a)
“authorised insurer” means an insurer in whose case the requirements of the Insurance Act,
1938 (4 of 1938), are complied with;]
(b)
“certificate of insurance” means a certificate issued by an Authorised insurer in pursuance of
sub-section (4) of section 95 ; and includes 2 [a cover note complying with such requirements
as may be prescribed, and] where more than one certificate has been issued in connection with
a policy, or where a copy of a certificate has been issued, all those certificates or that copy, as
the case may be;
3[(ba)
“liability” wherever used in relation to the death of or bodily injury to any person includes
liability in respect thereof under section 92 -A;]
4[(bb)
“property” includes roads, bridges, culverts, causeways, trees, posts and mile-stones;]
5[(c)
“reciprocating country” means any such country as may on the basis of reciprocity be notified
by the Central Government in the Official Gazette, to be a reciprocating country for the
purposes of this Chapter;]
6[(d)
“third party” includes the Government.]
Necessity for insurance against third-party risk.

(1) No person shall use except as a passenger or cause or allow any other person to use a motor
vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person
or that other person, as the case may be, a policy of insurance complying with the requirements of
this Chapter.
Explanation .—A person driving a motor vehicle merely as a paid employee, while there is in
force in relation to the use of the vehicle no such policy as is required by this sub-section, shall
Page 2 of 32
not be deemed to act in contravention of the sub-section unless he knows or has reason to
believe that there is no such policy in force.
7[(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State
Government and used for Government purposes unconnected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any
vehicle owned by any of the following authorities, namely:—
(a) the Central Government or a State Government, if the vehicle is used for Government purposes
connected with any commercial enterprise;
(b) any local authority;
(c) any State transport undertaking within the meaning of section 68 -A:
Provided that no such order shall be made in relation to any such authority unless a fund has been
established and is maintained by that authority in accordance with the rules made in that behalf under
this Act for meeting any liability arising out of the use of any vehicle of that authority which that
authority or any person in its employment may incur to third parties.
8 [Explanation .—For the purposes of this sub-section, appropriate Government means the Central
Government or the State Government, as the case may be, and—
(i) in relation to any corporation or company owned by the Central Government or any State
Government means the Central Government or that State Government;
(ii) in relation to any corporation or company owned by the Central Government and one or more State
Governments, means the Central Government;
(iii) in relation to any other State Transport Undertaking or any local authority, means that Government
which has control over that Undertaking or authority].]
COMMENT.—
Section 94 and other sections in Chapter VIII are designed to ensure that third parties who suffer on account of
the user of a motor vehicle would be able to get compensation for the injuries suffered from the insurance
company and their ability to get damages would not be dependant on the financial condition of the driver or
owner of the vehicle. These sections, language permitting, have to be construed in such a manner as to
promote this object. 9 It has been held that the owner and his insurer are liable to a third party for injuries
sustained by negligent driving of an employee of a garage owner to whom the vehicle has been delivered for
repairs. 10
Sections 94 and 95 are restricted to the use of a motor-vehicle in a ‘public place’ which expression is defined in
section 2(24). This definition has given rise to a divergence of opinion but in more recent cases the definition
has been liberally construed to mean a place where members of the public have access whether by permission
or as of right and so a private road or place where the public have a permissive access has been held to be a
public place. 11
Requirements of policies and limits of liability.

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy
which—
(a) is issued by a person who is an authorised insurer 12 [or by a cooperative society allowed under
section 108 to transact the business of an insurer], and
13[(b) insures the person or classes of persons specified in the policy to the extent specified in sub-
section (2)—
Page 3 of 32
(i) against any liability which may be incurred by him in respect of the death of or bodily injury
to any person or damage to any property of a third party caused by or arising out of the use
of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by
or arising out of the use of the vehicle in a public place:]
Provided that a policy shall not 14 [* * * *] be required—

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the
employee of a person insured by the policy or in respect of bodily injury sustained by such an
employee arising out of and in the course of his employment 15 [other than a liability arising under
the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to,
any such employee—
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on
the vehicle, or
(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason
of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily
injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at
the time of the occurrence of the event out of which a claim arises, or
(iii) to cover any contractual liability.
16 [Explanation .—For the removal of doubts, it is hereby declared that the death of or bodily injury to
any person or damage to any property of a third party shall be deemed to have been caused by or to
have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or
injured or the property which is damaged was not in a public place at the time of the accident, if the act
or omission which led to the accident occurred in a public place].
(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in
respect of any one accident upto the following limits, namely—
17[(a) where the vehicle is a goods vehicle, a limit of 18 [one lakh and fifty thousand rupees] in all,
including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of
1923), in respect of the death of, or bodily injury to, employees (other than the driver), not
exceeding six in number, being carried in the vehicle;]
19[(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason
of or in pursuance of a contract of employment,—
(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty
thousand rupees in all;
20[(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual
passenger;];
(c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of
liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees 21 [six thousand] in all in respect of
damage to any property of a third party.]
22[* * * ]
(4) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the
insurer in favour of the person by whom the policy is effected a certificate of insurance 23 [* * *] in
the prescribed form and containing the prescribed particulars of any conditions subject to which
Page 4 of 32
the policy is issued and of any other prescribed matters; and different forms, particulars and
matters may be prescribed in different cases. 24
25[(4-A) Where a cover note issued by the insurer under the provisions of this Chapter or rules made
thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall,
within seven days of the expiry of the period of the validity of the cover note, notify the fact to the
registering authority in whose records the vehicle to which the cover note relates has been
registered or to such other authority as the State Government may prescribe.]
(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance
under this section shall be liable to indemnify the person or classes of person specified in the
policy in respect of any liability which the policy purports to cover in the case of that person or
those classes of person.
COMMENT.—
The ‘Act policy’ does not cover compensation in respect of death or bodily injury of the insured person or his
representative or agent. 26 In view of proviso (ii) to section 95(1) (b)(i), statutory insurance does not cover
injury suffered by passengers who are not carried in a vehicle authorised to carry passengers for hire or
reward. 27 So passengers carried for hire in a goods vehicle or a private car are not covered by statutory
insurance. 28 Indeed, it has been held that for death or injury to a pillion rider the Insurance Company, inspite
of a comprehensive policy, is not liable unless he was carried in pursuance of a contract of employment, or for
hire or reward, or such a liability is specifically provided for in the policy. 29 It has, however, been noticed that
the Tariff Advisory Committee, a statutory body, issued instructions on 13-3-1978 requiring insurance
companies to mandatorily include a clause in the insurance contract for idemnifying the insured for “death or
bodily injury to any person including occupants carried in the motor car provided occupants are not carried for
hire or reward” and for bringing the above clause into force with effect from 25-3-1977 on which date the
decision of the Supreme Court in Pushpa Bai's case (see note 27 supra) was delivered. 30 The instructions
also stated that “all existing policies should be deemed to incorporate this amendment automatically”. 31 It has
been held that the effect of Pushpa Bai's case stands modified to the extent of the aforesaid instructions. 32
Insurance company will be liable also in respect of a gratuitous passenger if the policy is comprehensive to
cover death of or bodily injury to any person. 33 A person alighting from the bus in which he was travelling
continues to be a passenger. 34
Employees of the vehicle owner other than those referred in the proviso (i) to section 95(1) (b), e.g., a cleaner
have to be covered by the Act policy by virtue of the second part of the proviso (ii) to section 95(1) (b) and they
can be treated as passengers if, as an incident of their contract of service with the vehicle owner, they are
entitled to travel in the vehicle. 35 Claims in respect of such passengers will fall under section 95(2) (b)(ii). 36
A passenger while alighting from the bus fell from the footboard as the bus moved suddenly. 37 It was held
that he continued to be a passenger under section 95(2) (b)(ii).
The Orissa High Court held that section 95(2) (b) is not applicable to goods vehicles at all and that section
95(2) (a) is alone applicable to goods vehicles, which covers only the employees but not the owner. 38 This
view of the Orissa High Court has been accepted by the Supreme Court. 39
Extent of liability as provided in section 95(2) must be determined in terms of the provision as it stood on the
date of the accident and not on the date of commencement of the policy 40 or under the 1988 Act which later
came into force. 41
When a policy is taken on a particular date its commencement is from the beginning of that date, 42 unless a
particular time of commencement is mentioned. 43
Page 5 of 32
If more than one person is injured in course of the same transaction each one of the persons has met with an
accident and the extent of liability under section 95(2) (a) has to be applied for each of the persons injured
separately and not collectively. 44 The limit fixed cannot be exceeded. 45
The liability of the insurer cannot be fixed in excess of the limit prescribed by section 95(2) (b)(i) which in
respect of persons other than passengers is fifty thousand rupees (previously it was twenty thousand rupees).
46 The maximum statutory liability per passenger under section 95(2) (b)(ii) is Rs. fifteen thousand. 47 But a
policy of insurance may cover the liability of the insured to the full extent and if the insurer disputes its liability
beyond the limit prescribed by section 95(2) it must produce the policy of insurance. 48 Specific agreement is
necessary to cover liability beyond statutory liability for which separate premium has to be paid and the fact
that the policy is comprehensive is immaterial. 49 But it has been held that if a policy contains ‘Avoidance of
certain Terms and Rights of Recovery’ clause the claimant can recover the entire amount from the Insurance
Company which can recover the amount paid in excess of the statutory limit from the insured. 50
Validity of policies of insurance issued in reciprocating countries.
Where, in pursuance of an arrangement between India and any reciprocating country, any motor
vehicle registered in the reciprocating country operates on any route or within any area common to the
two countries and there is in force in relation to the use of the vehicle in the reciprocating country, a
policy of insurance complying with the requirements of the law of insurance in force in that country,
then, notwithstanding anything contained in section 95 but subject to any rules which may be made
under section 111, such policy of insurance shall be effective throughout the route or area in respect of
which the arrangement has been made, as if the policy of insurance had complied with the
requirements of this Chapter.]
Security to be deposited by insurers.

(1) In addition to the deposits required to be made under section 7 of the Insurance Act, 1938 (4 of
1938), every insurer who is competent to issue a policy of insurance in accordance with this
Chapter, shall deposit and keep deposited with the Reserve Bank of India or the State Bank of
India, a sum of rupees thirty thousand as security for the due discharge of any liability covered by
a policy of insurance issued in accordance with the provisions of this Chapter.
(2) Any sum deposited under sub-section (1) shall be deemed to be part of the assets of the insurer but
shall not be susceptible of any assignment or charge nor shall it be liable to any attachment in
execution of any decree except for meeting the claims arising in respect of a policy of insurance
issued after complying with the requirements of this Chapter.
(3) Where, on an application made to it in this behalf, any Court or Claims Tribunal, which has made an
award for compensation under this Act, is satisfied—
(i) that the applicant has exhausted all other remedies open to him to recover his dues from the
insurer, or
(ii) that the award has been made after the insurer has gone into liquidation,
it may direct the payment of such compensation from out of the sum deposited under sub-section (1):
Provided that in the case of the insolvency of the insurer—

(a) such payment shall not be made until all claims under this Act against the insurer have been settled;
and
(b) payment so made shall be proportionate to the amount of compensation allowed in each case.]
Duty of insurers to satisfy judgments against persons insured in respect of third party risks.
(1) If, after a certificate of insurance 53 [* * * * *] has been issued under sub-section (4) of section 95 in
favour of the person by whom a policy has been effected, judgment in respect of any such liability
Page 6 of 32
as is required to be covered by a policy under clause (b) of sub-section (1) of section 95 (being a
liability covered by the terms of the policy) is obtained against any person insured by the policy,
then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or
cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person
entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as
if he were the judgment-debtor, in respect of the liability, together with any amount payable in
respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment
relating to interest on judgments.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment unless
before or after the commencement of the proceedings in which the judgment is given the insurer
had notice through the Court of the bringing of the proceedings, or in respect of any judgment so
long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the
bringing of any such proceeding is so given shall be entitled to be made a party thereto and to
defend the action on any of the following grounds, namely:—
(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein
before the accident giving rise to the liability, and that either the certificate of insurance was
surrendered to the insurer or that the person to whom the certificate was issued has made an
affidavit stating that the certificate has been lost or destroyed, or that either before or not later
than fourteen days after the happening of the accident the insurer has commenced
proceedings for cancellation of the certificate after compliance with the provisions of Section
105 ; or
(b) that there has been a breach of a specified condition of the policy, being one of the following
conditions, namely:—
(i) a condition excluding the use of the vehicle—
(ii) a condition excluding driving by a named person or persons or by any person who is not
duly licensed, or by any person who has been disqualified for holding or obtaining a driving
licence during the period of disqualification; or
(c) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact
or by a representation of fact which was false in some material particular.
55[(2-A) Where any such judgment as is referred to in sub-section (1) is obtained from a Court 56 [* * *]
in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of
section 13 of the Code of the Civil Procedure, 1908 (5 of 1908), conclusive as to any matter
adjudicated upon by it, insurer (being an insurer registered under the Insurance Act, 1938 (4 of
1938), and whether or not he is registered under the corresponding law of the reciprocating
country) shall be liable to the person entitled to the benefit of the decree in the manner and to the
extent specified in sub-section (1), as if the judgment were given by a Court in India:
Provided that no sum shall be payable by the insurer in respect of any such judgment unless,
before or after the commencement of the proceedings in which the judgment is given, the
insurer had notice through the Court concerned of the bringing of the proceedings and the
insurer to whom notice is so given is entitled under the corresponding law 57 [* * *] of the
reciprocating country, to be made a party to the proceedings and to defend the action on
grounds similar to those specified in sub-section (2).]
(3) Where a certificate of insurance 58 [* * *] has been issued under subsection (4) of section 95 to the
person by whom a policy has been effected, so much of the policy as purports to restrict the
insurance of the persons insured thereby by reference to any conditions other than those in clause
(b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a policy
under clause (b) of sub-section (1) of section 95, be of no effect:
Page 7 of 32
Provided that any sum paid by the insurer in or towards the discharge of any liability of any
person which is covered by the policy by virtue only of this sub-section shall be recoverable by
the insurer from that person.
(4) If the amount which an insurer becomes liable under this section to pay in respect of a liability
incurred by a person insured by a policy exceeds the amount for which the insurer would apart
from the provisions of this section be liable under the policy in respect of that liability, the insurer
shall be entitled to recover the excess from that person.
(5) In this section the expressions “material fact and material particular” mean, respectively, a fact or
particular of such a nature as to influence the judgment of a prudent insurer in determining whether
he will take the risk and, if so, as what premium and on what conditions, and the expression
“liability covered by the terms of the policy” means a liability which is covered by the policy or
which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has
avoided or cancelled the policy.
(6) No insurer to whom the notice referred to in sub-section (2) 59 [or subsection (2-A)] has been given
shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as
is referred to in subsection (1) 58[or sub-section (2-A)] otherwise than in the manner provided for in
sub-section (2) 58[or in the corresponding law 60 [****] of the reciprocating country, as the case
may be.]
COMMENT.—
Except as provided in section 110C(2A)61 an insurer is not entitled to take any defence which is not specified
in section 96(2). 62 Quantum of compensation cannot be challenged in appeal by the Insurance Company 63
but it can be contended that its liability cannot exceed the statutory limit. 64 The onus is on the insurer to prove
breach of the conditions of the policy under section 96(2) (b) which negatives liability e.g. that the driver had no
valid driving licence at the time of the accident. 65 A person holding a learner's licence is not a duly licensed
driver and so an insurance company can avoid liability on that basis. 66 The liability of the insurer to the extent
defined in section 95(2) is joint and several and this liability cannot be apportioned between the insurer and the
owner of the vehicle. 67
There is no breach of the condition excluding driving by any person who is not duly licensed when the owner
does not permit the unlicensed person to drive and the accident happens when the licensed driver in course of
the owner's business negligently leaves the vehicle in charge of such a person. In such a situation the owner
and the Insurance Company are both liable. 68 So the insurance company is not liable if the insured hands
over the vehicle to an unlicensed driver whereas if the insured hands over the vehicle to a licensed driver who
without express or implied consent of the insured hands over the vehicle to an unlicensed driver or acts in such
a way that the vehicle becomes available for being driven by an unlicensed driver, the insurance company will
be liable. 69
Use of a vehicle on a route for which it has no permit does not attract clause (C) of section 96(2) (b)(i). 70
When the accident happens while the vehicle is handed over for repairs, the repairer, the owner and the
insurance company are all jointly liable. 71
Rights of third parties against insurers on the insolvency of the insured.

(1) Where under any contract of insurance effected in accordance with the provisions of this Chapter a
person is insured against liabilities which he may incur to third parties then—
(a) in the event of the person becoming insolvent or making a composition or arrangement with his
creditor, or
(b) where the insured person is a company, in the event of a winding up order being made or a
resolution for a voluntary winding up being passed with respect to the company or of a receiver
Page 8 of 32
or manager of the company's business or undertaking being duly appointed, or of possession

being taken by or on behalf of the holders of any debentures secured by a floating charge of
any property comprised in or subject to the charge,
if, either before or after that event, any such liability is incurred by the insured person, his rights
against the insurer under the contract in respect of the liability shall, notwithstanding anything to the
contrary in any provision of law, be transferred to and vest in the third party to whom the liability was
so incurred.
(2) Where an order for the administration of the estate of a deceased debtor is made according to the
law of insolvency, then, if any debt probable in insolvency is owing by the deceased in respect of a
liability to a third party against which he was insured under a contract of insurance in accordance
with the provisions of this Chapter, the deceased debtor's rights against the insurer in respect of
that liability shall, notwithstanding anything to the contrary in any provision of law, be transferred
to and vest in the person to whom the debt is owing.
(3) Any condition in a policy issued for the purposes of this Chapter purporting either directly or
indirectly to avoid the policy or to alter the rights of parties thereunder upon the happening to the
insured person of any of the events specified in clause (a) or clause (b) of sub-section (1) or upon
the making of an order for the administration of the estate of a deceased debtor according to the
law of insolvency shall be of no effect.
(4) Upon a transfer under sub-section (1) or sub-section (2) the insurer shall be under the same liability
to the third party as he would have been to the insured person, but—
(a) if the liability of the insurer to the insured person exceeds the liability of the insured person to
the third party, nothing in this Chapter shall affect the rights of the insured person against the
insurer in respect of the excess, and
(b) if the liability of the insurer to the insured person is less than the liability of the insured person
to the third party, nothing in this Chapter shall affect the rights of the third party against the
insured person in respect of the balance.
Duty to give information as to insurance

(1) No person against whom a claim is made in respect of any liability referred to in clause (b) of
subsection (1) of section 95 shall on demand by or on behalf of the person making the claim refuse
to state whether or not he was insured in respect of that liability by any policy issued under the
provisions of this Chapter, or would have been so insured if the insurer had not avoided or
cancelled the policy, nor shall he refuse, if he was or would have been so insured, to give such
particulars with respect to that policy as were specified in the certificate of insurance issued in
respect thereof.
(2) In the event of any person becoming insolvent or making a composition or arrangement with his
creditors or in the event of an order being made for the administration of the estate of a deceased
person according to the law of insolvency, or in the event of a winding up order being made or a
resolution for a voluntary winding up being passed with respect to any company or of a receiver or
manager of the company's business or undertaking being duly appointed or of possession being
taken by or on behalf of the holders of any debentures secured by a floating charge on any
property comprised in or subject to the charge, it shall be the duty of the insolvent debtor, personal
representative of the deceased debtor or company, as the case may be, or the official assignee or
receiver in insolvency, trustee, liquidator, receiver or manager, or person in possession of the
property to give at the request of any person claiming that the insolvent debtor, deceased debtor or
company is under such liability to him as is covered by the provisions of this Chapter, such
information as may reasonably be required by him for the purpose of ascertaining whether any
rights have been transferred to and vested in him by section 97, and for the purpose of enforcing
such rights, if any; and any such contract of insurance as purports whether directly or indirectly to
Page 9 of 32
avoid the contract or to alter the rights of the parties thereunder upon the giving of such
information in the event aforesaid, or otherwise to prohibit or prevent the giving thereof in the said
events, shall be of no effect.
(3) If, from the information given to any person in pursuance of subsection (2) or otherwise, he has
reasonable ground for supposing that there have or may have been transferred to him under this
Chapter rights against any particular insurer, that insurer shall be subject to the same duty as is
imposed by the said sub-section on the persons therein mentioned.
(4) The duty to give the information imposed by this section shall include a duty to allow all contracts of
insurance, receipts for premiums, and other relevant documents in the possession or power of the
person on whom the duty is so imposed to be inspected and copies thereof to be taken.
Settlement between insurers and insured persons.

(1) No settlement made by an insurer in respect of any claim which might be made by a third party in
respect of any liability of the nature referred to in clause (b) of sub-section (1) of section 95 shall be
valid unless such third party is a party to the settlement.
(2) Where a person who is insured under a policy issued for the purpose of this Chapter has become
insolvent, or where, if such insured person is a company, a winding up order has been made or a
resolution for a voluntary winding up has been passed with respect to the company, no agreement
made between the insurer and the insured person after liability has been incurred to a third party
and after the commencement of the insolvency or winding up, as the case may be, nor any waiver,
assignment or other disposition made by or payment made to the insured person after the
commencement aforesaid shall be effective to defeat the rights transferred to the third party under
this Chapter, but those rights shall be the same as if no such agreement, waiver, assignment or
disposition or payment has been made.
Saving in respect of Sections 97, 98 and 99.

(1) For the purposes of sections 97, 98 and 99, a reference to “liabilities of third parties” in relation to a
person insured under any policy of insurance shall not include a reference to any liability of that
person in the capacity of insurer under some other policy of insurance.
(2) The provisions of sections 97, 98 and 99 shall not apply where a company is wound up voluntarily
merely for the purposes of reconstruction or of an amalgamation with another company.
Insolvency of insured persons not to affect liability of insured or claims by third parties.
Where a certificate of insurance has been issued to the person by whom a policy has been
effected, the happening in relation to any person insured by the policy of any such event as is
mentioned in sub-section (1) or sub-section (2) of section 97 shall, notwithstanding anything in
this Chapter, not affect any liability of that person of the nature referred to in clause (b) of sub-
section (1) of section 95 ; but nothing in this section shall affect any rights against the insurer
conferred under the provisions of sections 97, 98 and 99 on the person to whom the liability
was incurred.
Effect of death on certain causes of action.

Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of
1925), the death of a person in whose favour a certificate of insurance 72 [***] had been issued,
if it occurs after the happening of an event which has given rise to a claim under the provisions
of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said
event against his estate or against the insurer.
Effect of certificate of insurance.

Page 10 of 32
When an insurer has issued a certificate of insurance in respect of a contract of insurance between the insurer
and the insured person, then—
(a) if and so long as the policy described in the certificate has not been issued by the insurer to the
insured, the insurer shall, as between himself and any other person except the insured, be deemed
to have issued to the insured person a policy of insurance conforming in all respects with the
description and particulars stated in such certificate; and
(b) if the insurer has issued to the insured the policy described in the certificate, but the actual terms of
the policy are less favourable to persons claiming under or by virtue of the policy against the
insurer either directly or through the insured than the particulars of the policy as stated in the
certificate, the policy shall, as between the insurer and any other person except the insured, be
deemed to be in terms conforming in all respects with the particulars stated in the said certificate.
Transfer of certificate of insurance.

(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the
provisions of this Chapter proposes to transfer to another person the ownership of the motor
vehicle in respect of which such insurance was taken together with the policy of insurance relating
thereto, he may apply in the prescribed form to the insurer for the transfer of the certificate of
insurance and the policy described in the certificate in favour of the person to whom the motor
vehicle is proposed to be transferred, and if within fifteen days of the receipt of such application by
the insurer, the insurer has not intimated the insured and such other person his refusal to transfer
the certificate and the policy to the other person, the certificate of insurance and the policy
described in the certificate shall be deemed to have been transferred in favour of the person to
whom the motor vehicle is transferred with effect from the date of its transfer.
(2) The insurer to whom any application has been made under sub-section (1) may refuse to transfer to
the other person the certificate of insurance and the policy described in that certificate, if he
considers it necessary so to do, having regard to—
(a) the previous conduct of the other person—
(i) as a driver of motor vehicles; or
(ii) as a holder of the policy of insurance in respect of any motor vehicle; or
(b) any conditions which may have been imposed in relation to any such policy held by the
applicant; or
(c) the rejection of any proposal made by such other person for the issue of a policy of insurance in
respect of any motor vehicle owned or possessed by him.
(3) Where the insurer has refused to transfer, in favour of the person to whom the motor vehicle has
been transferred, the certificate of insurance and the policy described in that certificate, he shall
refund to such transferee the amount, if any, which, under the terms of the policy, he would have
had to refund to the insured for the unexpired term of such policy.]
COMMENT.—
Although section 103A in terms requires the owner to apply to the Insurance Company for transfer of certificate
of insurance and the policy when he proposes to transfer the vehicle, but the section has been liberally
construed and it has been held that an application after the transfer of the vehicle, requesting for transfer of
certificate of insurance & policy, is not invalid and has the same effect. 74 It has been held that an intimation
by the transferee to the Insurance Company for transfer of the policy, though not strictly in accordance with the
section, will keep the policy alive if there is no refusal from the insurance company. 75 Even when there was
no intimation of sale by transferor or transferee, but the insurer knew about the transfer and received premium
for periods subsequent to the accident, it was held that the policy did not lapse and was available for the
Page 11 of 32
benefit of third party victim or his legal representative. 76 It has again been held that even though no intimation
is given either by the transferor or the transferee, the policy will remain effective for the benefit of third party
victim. 77 A nominal transfer e.g. by the owner to his wife and consequent transfer of registration of vehicle
does not affect the liability of the real owner and his insurer. 78
Duty to surrender certificate on cancellation of policy.

(1) Whenever the period of cover under a policy of insurance issued under the provisions of this
Chapter is terminated or suspended by any means before its expiration by effluxion of time, the
insured person shall within seven days after such termination or suspension deliver to the insurer
by whom the policy was issued the latest certificate of insurance given by the insurer in respect of
the said policy, or, if the said certificate has been lost or destroyed, make an affidavit to that effect.
(2) Whoever fails to surrender a certificate of insurance or to make an affidavit, as the case may be, in
accordance with the provisions of this section shall be punishable with fine which may extend to
fifteen rupees for every day that the offence continues subject to a maximum of five hundred
rupees.
Duty of insurer to notify registering authority cancellation or suspension of the policy.
Whenever a policy of insurance issued under the provisions of this Chapter is cancelled or suspended
by the insurer who has issued the policy, the insurer shall within seven days notify such cancellation
or suspension to the registering authority in whose records the registration of the vehicle covered by
the policy of insurance is recorded or to such other authority as the State Government may prescribe.
Production of certificate of insurance.

(1) Any person driving a motor vehicle in any public place shall on being so required by a police officer
in uniform 79 [authorised in this behalf by the State Government] produce the certificate of
insurance relating to the use of the vehicle.
80 [* * * * ]
(2) If, where owing to the presence of a motor vehicle in a public place an accident occurs involving
bodily injury to another person, the driver of the vehicle does not at the time produce the certificate
of insurance to a police officer, he shall produce the certificate of insurance at the police station at
which he makes the report required by section 89.
78 [* * * * ]
81[(2-A) No person shall be liable to conviction under sub-section (1) or sub-section (2) by reason only
of the failure to produce the certificate of insurance, if within seven days from the date on which its
production was required under sub-section (1) or as the case may be, from the date of occurrence
of the accident, he produces the certificate at such police station as may have been specified by
him to the police officer who required its production or, as the case may be, to the police officer at
the site of the accident or to the officer in charge of the police station at which he reported the
accident:
Provided that except to such extent and with such modifications as may be prescribed, the
provisions of this sub-section shall not apply to the driver of a transport vehicle.]
(3) The owner of a motor vehicle shall give such information as he may be required by or on behalf of a
police officer empowered in this behalf by the State Government to give for the purpose of
determining whether the vehicle was or was not being driven in contravention of section 94 and on
any occasion when the driver was required under this section to produce his certificate of
insurance.
Page 12 of 32
(4) In this section the expression “produce his certificate of insurance” means produce for examination
the relevant certificate of insurance or such other evidence as may be prescribed that the vehicle
was not being driven in contravention of section 94.
Production of certificates of insurance on application for authority to use vehicle.
A State Government may make rules requiring the owner of any motor vehicle when applying whether
by payment of a tax or otherwise for authority to use a vehicle in a public place to produce such
evidence as may be prescribed by those rules to the effect that either—
(a) on the date when the authority to use the vehicle comes into operation these will be in force the
necessary policy of insurance in relation to the use of the vehicle by the applicant or by other
persons on his order or with his permission, or
(b) the vehicle is a vehicle to which section 94 does not apply.
Co-operative Insurance.
(1) A State Government may, on the application of a co-operative society of 82 [transport vehicle]
owners registered or deemed to have been registered under the Co-operative Societies Act, 1912 (2
of 1912) or under an Act of a State Legislature governing the registration of Co-operative Societies
and subject to the control of the Registrar of Co-operative Societies of the State, allow the society
to transact the business of an insurer for the purposes of this Chapter 83 [* * *] subject to the
following conditions, namely—
(a) the society shall establish and maintain a fund of not less than twenty-five thousand rupees for
the first fifty vehicles or fractional part thereof and pro rata for every additional vehicle in the
possession of 80[members of, and insured with, the society subject to a maximum of one lakh
and fifty thousand rupees] and the said fund shall be lodged in such custody as the State
Government may prescribe and shall not be available for meeting claims or other expenses
except in the event of the winding up of the society;
84[(b) the insurance business of the society shall, except to the extent permitted under clause (cc),
be limited to transport vehicles owned by its members, and its liability shall be limited as
specified in subsection (2) of section 95 ;]
(c) the society shall, if required by the State Government, reinsure against claims above 80[such
amount as may be specified by the State Government];
85[(cc) the society may, if permitted by the State Government and subject to such conditions and
limitations as may be imposed by it, accept reinsurances from other societies allowed to
transact the business of an insurer under this section;]
(d) the provisions of this Chapter, in so far as they relate to the protection of third parties and to the
issue and production of certificates, shall apply in respect of any insurance effected by the
society;
(e) an independent authority not associated with the society shall be appointed by the State
Government to facilitate and assist in the settling of claims against the society;
(f) the society shall operate on an insurance basis, that is to say—
(i) it shall levy its premiums in respect of a period not exceeding twelve months, during which
period the insured shall be held covered in respect of all accidents arising, subject to the limits
of liability specified in 86 [* * *] sub-section (2) of Section 95 ;
(ii) it shall charge premiums estimated to be sufficient, having regard to the risks, to meet the
capitalised value of all claims arising during the period of cover, together with an adequate
charge for expenses attaching to the issue of policies and to the settlement of claims arising
thereunder;
Page 13 of 32
(g) the society shall furnish to the 87 [Controller of Insurance] the returns required to be furnished by
insurers under the provisions of the Insurance Act, 1938 (4 of 1938), and the 88 [Controller of
Insurance] may exercise in respect thereof any of the powers exercisable by him in respect of
returns made to him under the said Act; 89 [* * *]
90[(h) the society shall, in respect of any business transacted by it of the nature referred to in clause (i)
of the proviso to sub-section (1) of section 95, be deemed to be an insurer within the meaning of
subsection (1) of Section 10 and (6) o 13 of the Insurance Act, 1938 (4 of 1938);
(i) the provisions of the Insurance Act, 1938 (4 of 1938), relating to the winding up of insurance
companies shall, to the exclusion of any other law inconsistent therewith and subject to such
modifications as may be prescribed, apply to the winding up of the society.]
(2) Except as provided in sub-section (1), the Insurance Act, 1938 (4 of 1938), shall not apply to any co-
operative society of 91[transport vehicle] owners allowed to transact the business of an insurer
under this section.
Duty to furnish particulars of vehicle involved in accident.
A registering authority or the officer in charge of a police station shall, if so required by a person who
alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a
motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any
motor vehicle, furnish to that person or to that insurer, as the case may be, on payment of the
prescribed fee any information at the disposal of the said authority or the said police officer relating to
the identification marks and other particulars of the vehicle and the name and address of the person
who was using the vehicle at the time of the accident or was injured by it.
Special provisions as to compensation in cases of hit and run motor accidents.

(1) For the purposes of this section, section 109 -B and section 109 -C,—
(a)
‘grievous hurt’ shall have the same meaning as in the Indian Penal Code, 1860 (45 of 1860);
(b)
“hit and run motor accident” means an accident arising out of the use of a motor vehicle or
motor vehicles the identity whereof cannot be ascertained inspite of reasonable efforts for
the purpose;
(c)
“scheme” means the scheme framed under section 109 -C;
(d)
“Solatium Fund” means the Fund established under sub-section (2).
(2) The Central Government may, by notification in the Official Gazette, establish a Fund to be known as
the Solatium Fund.
(3) The Solatium Fund shall be utilised for paying, in accordance with the provisions of this Act and the
scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit
and run motor accidents.
(4) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972
(57 of 1972) or any other law for the time being in force or any instrument having the force of law,
the General Insurance Corporation of India formed under section 9 of the said Act and the
insurance companies for the time being carrying on general insurance business in India shall make
to the Solatium Fund such contributions as the Central Government may from time to time by order
in writing specify, and in addition to such contributions, the said Fund shall consist of—
Page 14 of 32
(a) such sums as the Central Government may, after due appropriation made by Parliament by law
in this behalf, provide from time to time;
(b) such sums as the State Governments may from time to time contribute; and
(c) such other sums as may be received (whether by way of refund, gift, donation or in any other
manner) for being credited to the Fund.
(5) Subject to the provisions of this Act and the scheme, there shall be paid as compensation out of the
Solatium Fund,—
(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of
five thousand rupees;
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed
sum of one thousand rupees:
Provided that where the sum standing to the credit of the Solatium Fund is not adequate for meeting
any claim for compensation under this section, such claim may be kept pending for payment till such
time as the sum necessary for meeting it becomes available in the Fund.
(6) The provisions of sub-section (1) of section 110 -A shall apply for the purpose of making
applications for compensation under this section as they apply for the purpose of making
applications for compensation referred to in that sub-section.]
COMMENT.—
The Law Commission of India, in its Fifty-first report made certain suggestions with respect to “hit and run”
motor accident cases. Sections 109 -A, 109-B and 109-C deal with such cases. The following extract from the
Statement of Objects and Reasons sums up their object and scope:
“Some sections are being inserted immediately after section 109 of the Act to provide for compensation in
cases of hit-and-run motor accidents. These provisions envisage the establishment of Solatium Fund by the
Central Government for the purposes of paying compensation in cases of hit-and-run motor accidents. The
Fund will consist of contributions by the General Insurance Corporation and insurance companies carrying on
general insurance business in India, contributions by the Central Government, State Government and other
sums which may be received for being credited to it from any source. Provision is being made for payment of
compensation only in cases of death or grievous hurt as defined in the Indian Penal Code. The compensation
payable in respect of death of a person in a hit-and-run motor accident will be a fixed sum of Rs. 5,000 while
the compensation payable in case of grievous hurt to a person is a fixed sum of Rs. 1,000. In the event of the
identity of the motor vehicle involved in the accident becoming subsequently found out and compensation
being recovered through the Claims Tribunal or Court or other authority in respect of the death of or for
grievous hurt to any person to whom compensation has been paid from the Solatium Fund, the compensation
paid from the Solatium Fund will have to be refunded to the Fund. The provision is also being made for the
making of a scheme to provide for the authority in which the Solatium Fund shall rest for the administration of
the Solatium Fund and for all matters connected with payment of compensation from the Solatium Fund.”
When the claimant traced and identified the offending vehicle, he was not entitled to claim compensation under
section 109. 93
Refund in certain cases of compensation paid under section 109 -A.

(1) The payment of compensation in respect of the death of, or grievous hurt to, any person under
Section 109 -A shall be subject to the condition that if any compensation (hereafter in this sub-
section referred to as the other compensation) or other amount in lieu of or by way of satisfaction
of a claim for compensation is awarded or paid in respect of such death or grievous hurt under any
other provision of this Act or any other law or otherwise, so much of the other compensation or
Page 15 of 32
other amount aforesaid as is equal to the compensation paid under section 109 -A shall be credited
to the Solatium Fund by way of refund.
(2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to,
any person arising out of the use of a motor vehicle or motor vehicles under any provision of this
Act (other than section 109 -A) or any other law, the tribunal, Court or other authority awarding
such compensation shall verify as to whether in respect of such death or bodily injury
compensation has already been paid under section 109 -A or an application for payment of
compensation is pending under that section, and such tribunal, Court or other authority shall,—
(a) if compensation has already been paid under section 109 -A, direct the person liable to pay the
compensation awarded by it to pay into the Solatium Fund so much thereof as is required to be
credited to that Fund in accordance with the provisions of sub-section (1);
(b) if an application for payment of compensation is pending under Section 109 -A, forward the
particulars as to the compensation awarded by it to the authority in which the Solatium Fund
vests.
Explanation .— For the purposes of this sub-section an application for compensation under section
109 -A shall be deemed to be pending—
(i) if such application has been rejected, till the date of the rejection of the application, and
(ii) in any other case, till the date of payment of compensation in pursuance of the application.
Scheme for the administration of the Solatium Fund.

(1) The Central Government may, by notification in the Official Gazette, make a scheme specifying the
authority in which the Solatium Fund shall vest, the manner in which the Fund shall be
administered, the form, manner and the time within which applications for compensation from the
Fund may be made, the officers or authorities to whom such applications may be made the
procedure to be followed by such officers or authorities for considering and passing orders on
such applications, and all other matters connected with, or incidental to, the administration of the
Fund and the payment of compensation therefrom.
(2) A scheme made under sub-section (1) may provide that—
(a) a contravention of any provision thereof shall be punishable with imprisonment for such term as
may be specified but in no case exceeding three months, or with fine which may extend to such
amount as may be specified but in no case exceeding five hundred rupees or with both;
(b) the powers, functions or duties conferred or imposed on any officer or authority by such
scheme may be delegated, with the prior approval in writing of the Central Government, by
such officer or authority to any other officer or authority;
(c) any provision of such scheme may operate with retrospective effect from a date not earlier than
the date of establishment of the Solatium Fund:
Provided that no such retrospective effect shall be given so as to prejudicially affect the interests of
any person who may be governed by such provision.
(3) Every scheme made under this section shall be laid, as soon as may be after it is made before each
House of Parliament, while it is in session, for a total period of thirty days which may be comprised
in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the scheme or both Houses agree that the scheme should not be made,
the scheme shall thereafter have effect only in such modified form or be of no effect, as the case
may be; so, however, that any such modification or annulment shall be without prejudice to validity
of anything previously done under that scheme.]
Page 16 of 32
Claims Tribunals.
(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor
Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be
specified in the notification for the purpose of adjudicating upon claims for compensation in
respect of accidents involving the death of, or bodily injury to, persons arising out of the use of 96
[motor vehicles, or damages to any property of a third party so arising, or both:
Provided that where such claim includes a claim for compensation in respect of damage to
property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a
Civil Court for adjudication, and where a reference is so made, the Claims Tribunal shall have
no jurisdiction to entertain any question relating to such claim.]
97 [Explanation .—For the removal of doubts, it is hereby declared that the expression ‘claims
for compensation in respect of accidents involving the death of, or bodily injury to, persons
arising out of the use of motor vehicles’ includes claims for compensation under section 92 -A.
]
(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit
to appoint and where it consists of two or more members, one of them shall be appointed as the
Chairman thereof.
(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he—
(a) is, or has been, a judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a Judge of the High Court.
(4) Where two or more Claims Tribunals are constituted for any area, the State Government may, by
general or special order, regulate the distribution of business among them.]
COMMENT.—
Pauper provisions of the Code of Civil Procedure apply to the Claims Tribunal1 and the tribunal 1 is a Civil
Court for the purposes of section 25 of the Code. 2 The tribunal has inherent jurisdiction to execute its award
in accordance with the provisions of CPC applicable to execution of orders and decrees passed by a Civil
Court. 3
When an accident occurs from a collision between a motor vehicle and a Railway engine or train, the tribunal
will have jurisdiction if the motor vehicle was solely or jointly responsible for the accident but if the accident is
entirely due to negligence of the Railway employees, the tribunal will have no jurisdiction. 4 This view now
stands modified. It has been held that the tribunal will have jurisdiction in a case in which a motor vehicle and
Railway are both involved and ultimate finding that the Railway alone was responsible will not oust the
jurisdiction of the tribunal. 5 As regards the no fault liability created by s. 92 A the position is not clear.
A claim for damage to property arising in a motor accident may be entertained although there is no claim for
personal injury. 6 The owner of the goods which are damaged while being transported in a goods vehicle is a
‘third party’ and he can claim compensation before the tribunal. 7 Loss of income from a bus damaged in an
accident is not damage to property claimable before a tribunal; it can be claimed in a Civil Suit. 8
A motor vehicle parked on the road is still in use and if it gets involved in an accident, the Tribunal will have
jurisdiction. 9 A tribunal has jurisdiction in respect of claim of compensation even if the vehicle causing the
accident is uninsured. 10 A tribunal has jurisdiction in case of a fall from ladder attached to a bus resulting in
death while the bus is standing. 11 The expression ‘arising out of the use of motor vehicle’ has been given a
very liberal construction. 12 A bus dashed against a way side electric post. A passenger of bus while carrying
Page 17 of 32
on rescue operations came in contact with a stray live wire and died. It was held that his representatives were
entitled to compensation under section 110 as death of passenger arose out of use of motor vehicle. 13
An accident taking place because of explosion of a bomb placed in the bus by some miscreants is also an
accident arising out of use of motor vehicle and the tribunal will have jurisdiction to try claims flowing from the
accident. 14
Application for compensation.

(1) An application for compensation arising out of an accident of the nature specified in sub-section (1)
of section 110 may be made—
(a) by the person who has sustained the injury; or
15[(aa) by the owner of the property; or]
(b) where death has resulted from the accident, 16 [by all or any of the legal representatives] of the
deceased; or
(c) by any agent duly authorised by the person injured 17 [or all or any of the legal representatives]
of the deceased, as the case may be:
18 [Provided that where all the legal representatives of the deceased have not joined in any such
application for compensation, the application shall be made on behalf of or for the benefit of all the
legal representatives of the deceased and the legal representatives who have not so joined, shall be
impleaded as respondents to the application.]
(2) Every application under sub-section (1) shall be made to the Claims Tribunal having jurisdiction
over the area in which the accident occurred, and shall be in such form and shall contain such
particulars as may be prescribed:
19 [Provided that where any claim for compensation under section 92 -A is made in such
application, the application shall contain a separate statement to that effect immediately before
the signature of the applicant];
(3) No application for 20 [such compensation] shall be entertained unless it is made within 21 [six
months] of the occurrence of the accident:
Provided that the Claims Tribunal may entertain the application after the expiry of the said
period of 16[six months] if it is satisfied that the applicant was prevented by sufficient cause
from making the application in time.
COMMENT.—
The right given to legal representatives to claim compensation under the section is a new and enlarged one
and is not confined to dependants as defined in the Fatal Accidents Act.22 A dependant who is not an heir
cannot claim compensation under the Motor Vehicles Act. 23 Impleadment of the driver is necessary and the
tribunal can pass the award jointly or severally. 24
Option regarding claims for compensation in certain cases.
Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923), where the
death of or bodily injury to any person gives rise to a claim for compensation under this Act and also
under the Workmen's Compensation Act, 1923 (8 of 1923) the person entitled to compensation 26 [may,
without prejudice to the provisions of Chapter VII-A claim such compensation] under either of those
Acts but not under both.]
Page 18 of 32
COMMENT.—
Although there is difference of opinion, the more reasonable view appears to be that an insurer, having regard
to section 95(1) Proviso (i), can be made a party in a proceeding under the Workmen's Compensation Act and
made liable for the compensation, if the accident was caused by or arose out of the use of a motor vehicle in a
public place. 27 In a claim filed under the Workmen's Compensation Act, 1923, the Commissioner can make
an award against the insurer under Section 92A of the Motor Vehicles Act. 28
There should be conscious selection of forum before the bar under section 110 AA can be attracted. 29 The
claimants in an appeal by the insurers can give up their claim under the Workmen's Compensation Act and
confine their claim under the Motor Vehicles Act. 30
Award of the Claims Tribunal.
On receipt of an application for compensation made under section 110 -A, the Claims Tribunal shall,
after giving the parties an opportunity of being heard, 31 [hold an inquiry into the claim or, as the case
may be, each of the claims and, subject to the provisions of section 109 -B, may make an award]
determining the amount of compensation which appears to it to be just and specifying the person or
persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall
specify the amount which shall be paid by the insurer 32 [or owner or driver of the vehicle involved in
the accident or by all or any of them, as the case may be]:
33 [Provided that where such application makes a claim for compensation under section 92 -A in
respect of the death or permanent disablement of any person, such claim and any other claim (whether
made in such application or otherwise) for compensation in respect of such death or permanent
disablement shall be disposed of in accordance with the provisions of Chapter VII-A. ]
COMMENT.—
Primarily the law engraved in sections 110 -A and 110-F is a law relating to change of forum. 34 But it also
makes substantial change in substantive law. 35
Proof of negligence is essential to support a claim for compensation 36 (other than a claim under section 92 -
A). The subject of negligence is discussed in Chapter XIX.
When a vehicle is requisitioned by the collector for Government purpose, the collector becomes the owner
during the period of requisition and the original owner and his insurer are not liable if the accident takes place
during this period but the collector is liable. 37 When a person hires a vehicle alongwith the driver of the owner
and has full control over the driver, the hirer becomes the owner and he is vicariously liable for the negligence
of the driver and not the owner. 38
A claim for compensation under the Act is either a claim by the victim for personal injuries or by legal
representatives when the victim dies as a result of injuries received in the accidents. There may also be a claim
for damage to property. According to Kerala High Court a claim cannot be dismissed for default of appearance.
39
The principles on which damages for personal injuries and property are assessed have been discussed in
Chapter IX.
The subject of damages recoverable on account of death is discussed in Chapter VI generally with reference to
the Fatal Accidents Act, 1855. Under the said Act, damages for loss of dependency can be claimed only by or
on behalf of named dependants (section 1 -A). In addition the said Act allows joinder of claim by the
representatives for loss to the estate of the deceased. There was a divergence of opinion on the question
whethersections 110 110-B of the Motor Vehicles Act form a complete Code and the Tribunal, in case of death,
Page 19 of 32
is not fettered by the provisions of the Fatal Accidents Act. One view was that the substantive law is contained
in the Fatal Accidents Act and the Tribunal, therefore, can allow damages for loss of dependency only to the
dependants mentioned in section 1 -A of that Act, and other legal representatives can get damages for loss to
the estate under section 2 of that Act.40 Further, the principles for determining compensation are the same as
applied under the Fatal Accidents Act.41 The other view was that the Tribunal is not fettered by the provisions
of the Fatal Accident Act either in limiting the class of dependents or in applying the principles for determination
of compensation. 42 The Supreme Court has approved the latter view holding that a brother who is not a
dependant under the Fatal Accidents Act can claim just compensation as a legal representative under the
Motor Vehicles Act.43 But even according to this view the principles on which damages are allowed under the
Fatal Accidents Act may be taken as guide for determining compensation under Section 110 -B of the Motor
Vehicles Act.44 This may now be also taken to be settled by the decision of General Manager, Kerala State
Electricity Board v. Susamma Thomas 45 which approves the multiplier method for determination of just
compensation.
Procedure and powers of Claims Tribunals.

(1) In holding any inquiry under section 110 -B, the Claims Tribunal may, subject to any rules that may
be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on
oath and of enforcing the attendance of witnesses and of compelling the discovery and production
of documents and material objects and for other purposes as may be prescribed; and the Claims
Tribunal shall be deemed to be a Civil Court for all the purposes of 46 [Section 195 and Chapter
XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).]
47[(2-A) Where in the course of any inquiry, the Claims Tribunal is satisfied that—
(i) there is collusion between the person making the claim and the person against whom the claim is
made, or
(ii) the person against whom the claim is made has failed to contest the claim,
it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of
such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall
thereupon have the right to contest the claim on all or any of the grounds that are available to the
person against whom the claim has been made.]
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of
adjudicating upon any claim for compensation, choose one or more persons possessing special
knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.
COMMENT.—
Express permission is necessary under section 110 -C(2-A). 48 Merely because the Insurer is allowed to cross
examine claimant's witnesses, it does not become a party under clause 2-A of section 110 -C and is not
entitled to file appeal. 49
Award of interest where any claim is allowed.
Where any Court or Claims Tribunal allows a claim for compensation made under this 51 [Act], such
Court or Tribunal may direct that in addition to the amount of compensation simple interest shall also
be paid at such rate and from such date not earlier than the date of making the claim as it may specify
in this behalf.]
COMMENT.—
Page 20 of 32
See Chapter IX title (1)(D)(VI)(C).
Interest cannot be allowed from a date earlier than date of claim. 52 Interest can be allowed upto the date of
intimation of deposit of the amount awarded to the claimant. 53
Award of compensatory costs in certain cases.

(1) Any Court or Claims Tribunal adjudicating upon any claim for compensation under this Act, may in
case where it is satisfied for reasons to be recorded by it in writing that—
(i) the policy of insurance is void on the ground that it was obtained by representation of fact which
was false in any material particular, or
(ii) any party or insurer has put forward a false or vexatious claim or defence,
such Court or Tribunal may make an order for the payment, by the party who is guilty of
misrepresentation or by whom such claim or defence has been put forward, or special costs by way of
compensation to the insurer or, as the case may be, to the party against whom such claim or defence
has been put forward.
(2) No Court or Claims Tribunal shall pass an order for special costs under sub-section (1) for any
amount exceeding rupees one thousand.
(3) No person or insurer against whom an order has been made under this section shall, by reason
thereof, be exempted from any criminal liability in respect of such misrepresentation, claim or defence
as is referred to in subsection (1).
(4) Any amount awarded by way of compensation, under this section in respect of any
misrepresentation, claim of defence shall be taken into account in any subsequent suit for
damages for compensation in respect of such misrepresentation, claim or defence.]
Appeals.
(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal
may, within ninety days from the date of award, prefer an appeal to the High Court:
Provided that the High Court may entertain the appeal after the expiry of the said period of
ninety days if it is satisfied that the appellant was prevented by sufficient cause from preferring
the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is
less than two thousand rupees.
COMMENT.—
It has been held by the M.P. High Court that the decision of a Single Bench in appeal under s. 100 -D is not
open to further appeal under the Letter Patent. 55 There is a difference of opinion on the question whether an
owner or driver of the vehicle who has not been directed to pay compensation by the award can file an appeal
to challenge the finding of fault and primary liability. 56
Recovery of money from insurer as arrear of land revenue.
Where any money is due from 57 [any person] under an award, the Claims Tribunal may, on an
application made to it by the person entitled to the money, issue a certificate for the amount to the
Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land
revenue.
Page 21 of 32
COMMENT.—
It has been held that s. 110 -E is discretionary and that it does not take away the inherent power of the tribunal
to enforce its award by execution in accordance with the procedure applicable to execution of decrees and
orders under the Civil Procedure Code.58
Bar of jurisdiction of Civil Courts.
Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to
entertain any question relating to any claim for compensation which may be adjudicated upon by the
Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or
before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil
Court.]
Power to make rules.

(1) The Central Government may make rules for the purpose of carrying into effect the provisions of
this Chapter.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for—
(a) the forms to be used for the purposes of this Chapter;
(b) the making of application for and the issue of certificate of insurance;
(c) the issue of duplicates to replace certificates of insurance 59 [lost, destroyed or mutilated];
(d) the custody, production, cancellation and surrender of certificates of insurance;
(e) the records to be maintained by insurers of policies of insurance issued under this Chapter;
(f) the identification by certificates or otherwise of persons or vehicles exempted from the
provisions of this Chapter;
(g) the furnishing of information respecting policies of insurance by insurers;
(h) the carrying into effect of the provisions of section 108 ;
(i) adapting the provisions of this Chapter to vehicles brought into 60 [India] by persons making
only a temporary stay therein 61 [or to vehicles registered in the State of Jammu and Kashmir
or in a reciprocating country and operating on any route or within any area in India] by applying
those provisions with prescribed modifications; and
(j) any other matter which is to be or may be prescribed.
Power of State Government.
A State Government may make rules for the purpose of carrying into effect the provisions of sections
110 to 110-E, and in particular, such rules may provide for all or any of the following matters, namely—
(a) the form of application for compensation and the particulars it may contain; and the fees, if any, to
be paid in respect of such applications;
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;
(d) the form and the manner in which 63 [and the fees (if any) on payment of which,] an appeal may be
preferred against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be, prescribed.]
1
Page 22 of 32
Clause (a), Subs. by Act No. 100 of 1956, s. 72 (w.e.f. 16-2-1957).

2
These words are Ins. by Act No. 100 of 1956, s. 72 (w.e.f. 16-2-1957).
3
New cl. (ba), Ins. by Act No. 47 of 1982 (w.e.f. 1-10-1982).
4
New cl. (bb), Ins. by Act No. 56 of 1969, s. 52 (w.e.f. 2-3-1970).
5
Cl. (c), Ins. by Act No. 100 of 1956, s. 72 (w.e.f. 16-2-1957).
6
Cl. (d), Ins. by Act No. 56 of 1969, s. 52 (w.e.f. 2-3-1970).
7
Subs. for sub-section (2), by Act No. 100 of 1956, s. 73 (w.e.f. 16-2-1957).
8
Subs. for Expln. to sub-s. (3) by Act No. 56 of 1969, s. 53 (w.e.f. 2-3-1970).
9
Asiatic Insurance Co. Ltd. v. Perrumal Dhanamal Aswani , AIR 1964 SC 1736 : (1964) 7 SCR 867 [LNIND
1964 SC 152].
10
Guru Govekar v. Filomena F. Lobo , AIR 1988 SC 1332 : (1988) 3 SCC 1 [LNIND 1988 SC 295] : (1988) 2
ACJ 585.
11
Pandurang Chimaji Agale v. New India Life Assurance Company Ltd ., AIR 1988 Bom 248 [LNIND 1988
BOM 39].
12
13
Subs. for clause (b), by Act No. 56 of 1969, s. 54 (w.e.f. 2-3-1970).
14
Omitted the words “execpt as may be otherwise provided under sub-section (3)” by Act No. 100 of 1956, s.
74 (w.e.f. 16-2-1957).
15
16
Ins. Explanation by Act No. 56 of 1969, s. 54 (w.e.f. 2-3-1970).
17
For clause (a), subs. by Act No. 100 of 1956, s. 74 (w.e.f. 16-2-1957).
18
These words are subs. by Act No. 47 of 1982, s. 13 (w.e.f. 1-10-1982).
19
Page 23 of 32
For clauses (b) & (c), subs. by Act No. 56 of 1969, s. 54 (w.e.f. 2-3-1970).
20
For sub. cl. (ii), subs. by Act No. 47 of 1982, (w.e.f. 1-10-1982).
21
For the words “Two thousand” these words are subs. by Act No. 47 of 1982 (w.e.f. 1-10-1982).
22
Omitted, sub-section (3), by Act No. 100 of 1956, s. 74 (w.e.f. 16-2-1957).
23
Omitted the words “or a cover note” by Act No. 100 of 1956, s. 74 (w.e.f. 16-2-1957).
24
For forms and particulars of certificate of insurance and date of commencement of policy see Rule 4 of the
Motor Vehicles (Third Party) Insurance Rules and Oriental Insurance Company Ltd. v. Sivan , AIR 1990 Ker
202 [LNIND 1989 KER 419].
25
Sub-section (4), Ins. by Act 100 of 1956, s. 74 (w.e.f. 16-2-1957).
26
M.A. Akkavva v. New India Assurance Co ., AIR 1988 Knt. 238 . United India Insurance Co. Ltd. Salam v.
Lakshmi , AIR 1990 Mad 108 [LNIND 1989 MAD 318]; Oriental Fire and General Insurance Co. Ltd. v.
Shakuntala Devi , AIR 1991 All 48 [LNIND 1989 ALL 370]. An ‘Act policy’ does not also cover liability in
respect of a driver or conductor other than a liability under the Workmen's Compensation Act : New India
Assurance Co. Ltd. v. Pathu , AIR 1992 Ker 145 [LNIND 1991 KER 444].
27
Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd ., AIR 1977 SC 1735 : (1977) 2
SCC 745 [LNIND 1977 SC 155] ; New India Assurance Co. Ltd. v. Smt. Basanti Devi , AIR 1988 Cal 86
[LNIND 1987 CAL 56]; Indrani v. S. Ramlingam , AIR 1990 Mad 192 [LNIND 1989 MAD 91].
28
Oriental Fire and General Insurance Co. v. Hirabai Vithal Nikam , AIR 1988 Bom 199 [LNIND 1988 BOM
35] (FB); Oriental Fire and General Insurance Co. Ltd. v. B. Bhanumati , AIR 1990 AP 370 [LNIND 1989
AP 487]; Sardar Ishwar Singh v. Himachal Puri , AIR 1990 MP 282 [LNIND 1989 MP 154]; Dattu Nathu
Kudekar v. National Insurance Co. , AIR 1991 Guj 126 [LNIND 1990 GUJ 203]. In re National Insurance
Ltd ., AIR 1992 Kant 3 [LNIND 1991 KANT 238]. See contra Bhagwandas v. National Insurance Company ,
AIR 1991 MP 238 .
29
National Insurance Co. Ltd. v. Vasantha , AIR 1988 Mad 146 [LNIND 1986 MAD 311].
30
New India Assurance Co. Ltd. v. Satyanath Hazarika , AIR 1990 Gauhati 26 (FB), pp. 30, 31; Smt. Kailash
Kumari v. Bhola , AIR 1990 P&H 154.
31
Ibid .
32
Page 24 of 32
Ibid . Passengers in goods vehicle are still not covered : Jibananda Mohanty v. Artatrana Misra , AIR 1992
Ori 110 [LNIND 1991 ORI 141], p. 114.
33
Amrit Lal Sood v. Kaushalya Devi Thapar (Smt.), JT 1998 (2) SC 484 [LNIND 1998 SC 320]: AIR 1998 SC
1433 : (1988) 3 SCC 744 : 1998 ACJ 531. See further text and notes 49, 50, p. 655.
34
Noorjahan v. Sultan Rajia , 1996 (8) Scale 155 : (1997) 1 SCC 6 [LNIND 1996 SC 1832] : 1997 ACJ 1.
35
National Insurance Co. Ltd. v. Philomina Mathew , AIR 1993 Ker 226 [LNIND 1992 KER 424] (FB) p. 239;
Oriental Insurance Co. Ltd. v. Milkhi Ram , AIR 1994 HP 38 . For employees carried in a goods vehicle see
A.C. Ktyal v. National Insurance Co. Ltd ., AIR 1995 Ori 231 [LNIND 1995 ORI 135].
36
New India Assurance Co. Ltd. v. Thakore Bhemaji Ganeshji , AIR 1994 NOC 117 (Guj).
37
New India Assurance Co. Ltd. v. Annakutty , AIR 1993 Ker 299 [LNIND 1992 KER 317].
38
New India Assurance Co. Ltd. v. Kanchan , Bewa, AIR 1994 Ori 65 [LNIND 1993 ORI 44] (FB) : (1999) 1
SCC 403 : 1999 ACJ 1.
39
Mallawwa (Smt.) v. Oriental Insurance Co. Ltd., AIR 1999 SC 589. See further Ramesh Kumar v. National
Insurance Co. Ltd., AIR 2001 SC 3363 : (2001) 6 SCC 713 [LNIND 2001 SC 1748].
40
Padamasrinivasan v. Premier Insurance Co. Ltd ., AIR 1982 SC 836.

41
Maitrekoby v. New India Assurance Co., (2003) 8 SCC 718 [LNIND 2003 SC 947].
42
New India Assurance Co. Ltd. v. Ram Dayal, 1990 ACJ 345 (SC); United India Insurance Co. Ltd. v. Vllash
Chandra , AIR 1992 Ori 193 [LNIND 1992 ORI 121].
43
National Insurance Co. Ltd. v. Jijubhai Nathuj Dabhi (Smt.), AIR 1997 SC 2147 : (1997) 1 SCC 66 [LNIND
1996 SC 1918] ; Oriental Insurance Co. Ltd. v. Sunita Rathi, AIR 1998 SC 357.
44
Motor Owners’ Insurance Company Ltd. v. Jadavji Keshavji Modi , AIR 1981 SC 2059.
45
New India Assurance Co. Ltd. v. Sulochana Sahu , AIR 1988 Ori 202 [LNIND 1987 ORI 168].
46
Page 25 of 32
British India General Insurance Co. Ltd. v. Smt. Maya Banerjee , AIR 1986 SC 2110 : (1986) 3 SCC 518.
National Insurance Co. Ltd. v. Jugal Kishore , AIR 1988 SC 719, p. 721 : (1988) 1 SCC 626 [LNIND 1988
SC 102] : (1989) 2 SCC 140 [LNIND 1989 SC 110] ; Akhaya Kumar Sahoo v. Chabirani Seth , AIR 1991 Ori
212 ; National Insurance Co. Keshav Bahadur , AIR 2004 SC 1581.
47
M.K. Kunhimohammed v. P.A. Ahmed Kutty, (1987) 4 SCC 284 [LNIND 1987 SC 621] : AIR 1987 SC 2158.
48
National Insurance Co. Ltd. New Delhi v. Jugal Kishore , AIR 1988 SC 719 : (1988) 1 SCC 626 [LNIND
1988 SC 102] : (1989) 2 SCC 140 [LNIND 1989 SC 110]. Distinguished in Smt. Rajendra Kumari v. Smt.
Shanta Trivedi , AIR 1989 SC 1074, p. 1076. See further Akhaya Kumar Sahoo v. Chabirani Seth, supra .
49
New India Assurance Co. Ltd. v. Shanti Bai , AIR 1995 SC 1113 : 1995 (1) Scale 472 : (1995) 2 SCC 539
[LNIND 1995 SC 205] : Road Transport Company v. Bhan Singh , AIR 1998 SC 2487, p. 2491 : (1998) 6
SCC 307 [LNIND 1998 SC 631] ; National Insurance Co. Ltd. v. Nathilal , AIR 1999 SC 623, p. 624 : (1999)
1 SCC 552 [LNIND 1998 SC 1106] : 1999 ACJ 657; New India Assurance Co. Ltd. v. C.M. Jaya, AIR 2002
SC 651 : (2002) 2 SCC 278 [LNIND 2002 SC 41] ; National Insurance Co. Ltd. v. Keshav Bahadur, (2004) 2
SCC 370 [LNIND 2004 SC 81] ; United India Insurance Co. Ltd. v. A.N. Subbulakshmi, (2008) 9 SCC 354
[LNINDU 2008 SC 26] para 5 : (2009) 1 SLT 310.
50
Oriental Insurance Co. Ltd. v. Cheruvakkara Nafeesee, JT 2001 (1) SC 341 [LNIND 2000 SC 1884]: (2001)
2 SCC 491 [LNIND 2000 SC 1884].
53
Omitted the words “or cover note” by Act No. 100 of 1956, s. 76 (w.e.f. 16-2-1957).
55
Sub-section (2-A), Ins. by Act No. 100 of 1956, s. 76 (w.e.f. 16-2-1957).
56
Omitted the words “in the State of Jammu & Kashmir” by Act No. 25 of 1968, s. 2 and Sch. (w.e.f. 15-8-
1968).
57
Omitted by Act No. 25 of 1968, s. 2 and Sch. (w.e.f. 15-8-1968).
58
Omitted the words “or a cover note” by Act No. 100 of 1956, s. 76 (w.e.f. 16-2-1957).
59
60
Omitted the words “of the State of Jammu and Kashmir” by Act No. 25 of 1968, s. 2 and Sch. (w.e.f. 15-8-
1968).
61
United India Insurance Co. Ltd. v. K.N. Surenderan Nair , AIR 1990 Ker 206 [LNIND 1989 KER 438].
62
Page 26 of 32
British India General Insurance Co. Ltd. v. Itbar Singh , AIR 1959 SC 1331 : (1960) 1 SCR 168 [LNIND
1959 SC 112] ; Madineni Kondaiah v. Yassen Fatima , AIR 1986 AP 62 [LNIND 1985 AP 147] (FB).
Skandia Insurance Co. Ltd. v. Kokilaben Chandrabadan, (1987) 2 SCC 654 [LNIND 1987 SC 359] : AIR
1987 SC 1184.
63
United India Insurance Co. Ltd. v. Ismail , AIR 1988 MP 189 [LNIND 1987 MP 197]; The New India
Assurance Co. Ltd. v. Sulochana Sahu , AIR 1988 Ori 202 [LNIND 1987 ORI 168]; Nahar Singh v.
Manohar Kumar , AIR 1993 J&K 69.
64
National Insurance Co. Ltd., New Delhi v. Jugal Kishore , AIR 1988 SC 719.
65
Nareinva V. Kamat v. Alfredo Antonio Deo Mortins, 1985 ACJ 397 (SC) : AIR 1985 SC 1281.
66
New India Insurance Co. Ltd. v. Mandar Madhav Tambe, AIR 1996 SC 1150 : 1996 (1) Scale 400.
67
Mehta Madanlal v. National Insurance Co. Ltd ., 1983 ACJ 348 : AIR 1983 SC 1136 : (1983) 2 SCC 262.
68
Skandia Insurance Co. Ltd. v. Kokilaben Chandrabadan, (1987) 2 SCC 654 [LNIND 1987 SC 359] : AIR
1987 SC 1184; Shri Kashiram Yadav v. Oriental Fire and General Insurance Co ., AIR 1989 SC 2002;
Vaidya nath Pillai v. Narsimhan , AIR 1989 Mad. 1330 ; Sohan Lal Passi v. P. Sesh Reddy , AIR 1996 SC
2627 : (1996) 5 Scale 388 [LNIND 1996 SC 1070]. See further B.V. Nagraj v. Oriental Insurance Co. Ltd .,
AIR 1996 SC 2054 : (1996) 4 SCC 647 [LNIND 1996 SC 997] (passengers carried in a truck without the
permission of the owner. Policy did not cover use for carrying passengers. Accident unrelated to the
carrying of passengers. Held, Insurance Co. liable to pay full compensation for damage to the truck under a
comprehensive insurance policy); Shivraj Vasant Bhagwat v. Shevantia Dattaram , AIR 1997 Bom 242
[LNIND 1996 BOM 882].
69
United India Insurance Co. Ltd. v. Gian Chand, AIR 1997 SC 3824 : (1997) 7 SCC 558 [LNIND 1997 SC
1147].
70
Raghunath Eknath Hivale v. Sharda Bai Karbhari Kale , AIR, 1986 Bom 386 ; Oriental Insurance Co. Ltd.
Palampur v. Bishan Dass, AIR 1988 HP 26 [LNIND 1987 HP 23]. See contra 1985 ACJ 239 (P&H).
71
Guru Govekar v. Filomena F. Lobo , AIR 1988 SC 1332 : (1988) 3 SCC 1 [LNIND 1988 SC 295] : (1988) 2
ACJ 585
72
Omitted the words “or cover note” by Act No. 100 of 1956, s. 77 (w.e.f. 16-2-1957).
74
Labh Singh v. Sunehri Devi , AIR 1988 P&H 149, p. 154.

75
Page 27 of 32
New India Assurance Co. Ltd. v. Sheela Rani (Smt.) , AIR 1999 SC 56 : (1998) 6 JT 388 : (1998) 6 SCC
599 [LNIND 1998 SC 877].
76
G. Govindan v. New India Assurance Co. Ltd. , AIR 1999 SC 1398 : JT 1999 (2) SC 622 [LNIND 1999 SC
368]: (1999) 3 SCC 754 [LNIND 1999 SC 368] : 1999 ACJ 781.
77
Rikhi Ram v. Sukhrania, (2003) 3 SCC 97 [LNIND 2003 SC 156] : AIR 2003 SC 1446; United India
Insurance Co. Ltd. Shimla v. Tilak Singh, (2006) 4 SCC 404 [LNIND 2006 SC 241] : AI 2006 SC 1576.
78
New India Assurance Co. Ltd. v. Sanatan Nayak , AIR 1988 Ori 197 [LNIND 1987 ORI 55].
79
80
Omitted the “Proviso to sub-sections (1) & (2) by Act No. 100 of 1956, s. 78 (w.e.f. 16-2-1957).
81
Sub-section (2A), Ins. by Act No. 100 of 1956, s. 78 (w.e.f. 16-2-1957).
82
These words are subs. by Act 100 of 1956, s. 79 (w.e.f. 16-2-1957).
83
Omitted the words “as if the society were an authorised insurer” by Act No. 100 of 1956, s. 79 (w.e.f. 16-2-
1957).
84
Clause (b), subs. by Act No. 100 of 1956, s. 79 (w.e.f. 16-2-1957).
85
Clause (cc), ins. by Act No. 100 of 1956, s. 79 (w.e.f. 16-2-1957).
86
Omitted the words “clause (b) of” by Act No. 100 of 1956, s. 79 (w.e.f. 16-2-1957).
87
These words are subs. by Act No. 48 of 1952, s. 3 and Sch. II.
88
89
Omitted the word “and” by Act No. 100 of 1956, s. 79 (w.e.f. 16-2-1957).
90
For clause (h) subs. by Act No. 100 of 1956, s. 79 (w.e.f. 16-2-1957).
91
93
Harishchandra M. Avashia v. Manager, District Collector & Claims Settlement Commissioner, AIR 1986 Guj
22 .
Page 28 of 32
96
Subs. by Act No. 56 of 1969, s. 57 (w.e.f. 2-3-1970).
97
Ins. by Act No. 47 of 1982, (w.e.f. 1-10-1982).
1
State of Haryana v. Darshana Devi, 1979 ACJ 205 (SC) : (1979) 2 SCC 236 [LNIND 1979 SC 114] : AIR
1979 SC 855.
2
Bhagwati Devi v. I.S. Goel, 1983 ACJ 123 (SC).

3
Smt. Sarmaniya Bai v. Madhya Pradesh Parivahan , AIR 1990 MP 306 [LNIND 1990 MP 297] (FB).
4
Union of India v. United India Insurance Co. Ltd ., JT 1997 (8) SC 653 [LNIND 1997 SC 1348]: AIR 1998
SC 640 : (1997) 8 SCC 683 [LNIND 1997 SC 1348].
5
Union of India v. Bhagwati Prasad , AIR 2002 SC 1301.

6
Kamal Kusha v. Kirpal , AIR 1988 JK 11 .

7
Kishori v. Chairman Tribal Service Cooperative Society Ltd ., AIR 1988 MP 38 [LNIND 1987 MP 253].
8
General Manager Ker State Transport Corporation v. K.P. Sardamma , AIR 1989 Ker 23 [LNIND 1987 KER
264].
9
V.G. Sumant v. Shailendra Kumar , AIR 1980 MP 101 [LNIND 1979 MP 61]; New India Assurance Co. v.
Phoolwati , AIR 1986 MP 187 [LNIND 1985 MP 70].
10
Paramananad Thakur v. Commissioner Coal Welfare Organisation , AIR 1988 Pat 156 .
11
Mangilal v. MPSRTC , AIR 1988 MP 109 [LNIND 1987 MP 276].

12
Shivaji Dayanu Patil v. Smt. Vatschala Uttam More , AIR 1991 SC 1769 : (1991) 3 SCC 530 [LNIND 1991
SC 727] : 1991 SCC (Cri) 865 (The case is noticed in comments on Sec. 92 A).
13
Sharlet Augustine v. K.L. Raveendran , AIR 1992 Ker 346 [LNIND 1992 KER 127].
Page 29 of 32
14
Samir Chandra v. Managing Director Assam State Trading Corporation, (1998) 6 JT 40 [LNIND 1998 SC
818] : AIR 1999 SC 136 : (1998) 6 SCC 605 [LNIND 1998 SC 818].
15
Clause (aa), ins. by Act No. 47 of 1978, s. 32 (w.e.f. 16-1-1979). After this amendment a claim for
compensation in respect of damage to property of a third party can be entertained by the tribunal : The New
India Assurance Co. Ltd. v. P.N. Vijaywargiya, AIR 1992 MP 122 [LNIND 1991 MP 238].
16
17
These words are subs. by Act No. 56 of 1969, s. 58 (w.e.f. 2-3-1970).
18
Ins. Proviso, by Act No. 56 of 1969, s. 58 (w.e.f. 2-3-1970).
19
Ins. Proviso, by Act No. 47 of 1982 (w.e.f. 1-10-1982).
20
These words are subs. by Act No. 47 of 1982 (w.e.f. 1-10-1982).
21
For the words “Sixty days”, these words are subs. by Act No. 56 of 1969, s. 58 (w.e.f. 2-3-1970).
22
472] : AIR 1987 SC 1690 : (1987) 62 Com Cases 609.
23
Smt. Mohini Thakuria v. Dhiraj Kalita , AIR 1994 Gau 22 [LNIND 1993 GAU 47].
24
MP State Road Transport Corporation v. Vaijanti , AIR 1995 MP 122 [LNIND 1994 MP 180].
26
These words are subs. by Act No. 47 of 1982 (w.e.f. 1-10-1982).
27
The Oriental Fire and General Insurance Co. v. Smt. Nani Bala Devi , AIR 1988 Gau 40 [LNIND 1987 GAU
1].
28
National Insurance Co. v. Philomina Mathew , AIR 1993 Ker 226 [LNIND 1992 KER 424] (FB), p. 234 :
1993 ACJ 1166.
29
Managing Director Karnataka Power Corporation Ltd. v. Geetha , AIR 1989 Kant 104 [LNIND 1986 KANT
207].
30
Page 30 of 32
United India Insurance Co. Ltd. v. Smt. Kadarbi , AIR 1992 Kant 342 [LNIND 1991 KANT 429].
31
These words are ins. by Act No. 47 of 1982 (w.e.f. 1-10-1982).
32
These words are ins. by Act No. 56 of 1969, s. 60 (w.e.f. 2-3-1970).
33
Proviso, ins. by Act No. 47 of 1982 (w.e.f. 1-10-1982).
34
New India Insurance Co. Ltd. v. Shanti Misra , AIR 1976 SC 237 : (1975) 2 SCC 840 [LNIND 1975 SC 407]
: (1976) 2 SCR 266 [LNIND 1975 SC 407].
35
472], pp. 248, 249 : AIR 1987 SC 1690 : (1987) 62 Com Cases 609.
36
Minu B. Mehta v. Balkrishna Ramchandra Nayan , AIR 1977 SC 1248 : (1977) 2 SCC 441 [LNIND 1977 SC
63] : (1977) 2 SCR 886 [LNIND 1977 SC 63]. There are observations in this case (para 23) that the liability
of the insurance company under section 95(1) (b)(ii) might arise even though the insured may not be liable
for want of negligence. These observations were disapproved in Gujarat State Road Transport Corporation
Ahmedabad v. Ramanbhai , (AIR 1987 SC 1690, p. 1697) but were relied upon in Peter Morris Lobo v.
Kumari Sonal Maganlal Shingala , AIR 1991 Bombay 1 [LNIND 1990 BOM 101] to fasten liability on the
insurance company though the insured was held not liable for want of negligence.
37
National Insurance Co. Ltd. v. Durdarsby Kumar , AIR 1988 Ori 229 ; National Insurance Co. Ltd. v. Deepa
Devi, (2008) 1 SCC 414 [LNIND 2007 SC 1449] : AIR 2008 SC 735.
38
Rajasthan State Road Transport Corporation v. Kailash Nash Kothari, AIR 1997 SC 3444 : (1997) 7 SCC
481 [LNIND 1997 SC 1167]. See further Godavari Finance Company v. Degale Satyanarayanamma, (2008)
5 SCC 107 [LNIND 2008 SC 879] (In case of purchase under Hire-Purchase agreement the purchaser is
the owner and the financier is not liable as owner.
39
M.R. Lukose v. V. Govindan Nair , AIR 1990 Ker 327 .

40
Kamla Devi v. Kishanchand, 1970 ACJ 310 (MP) approved in Kashiram Mathur v. Sardar Rajendra Singh,
1983 ACJ 152 (MP-FB); Shanker Rao v. Babulal , AIR 1980 MP 154 [LNIND 1980 MP 89]; Polvarapu
Somarajyam v. A.P. State Road Transport Corporation , AIR 1983 AP 407 [LNIND 1982 AP 375]; Dewan
Harichand v. Municipal Committee, Delhi , AIR 1981 Delhi 71 [LNIND 1980 DEL 154]; Lachhman Singh v.
Gurmit Kaur , AIR 1979 P&H 50 (FB); Motilal Vishwakarma v. Guru Bachan Singh, 1980 ACJ 462 (All). See
pp. 121 to 123.
41
Ibid.
42
Page 31 of 32
Rajasthan State Road Transport Corporation v. Smt. Kishtoori Devi , AIR 1986 Raj 192; H.P. Road
Transport Corporation v. Pt. Jai Ram, 1980 ACJ 1 (HP); General Manager Karnataka State Road Transport
Corpn. Bangalore v. Peerappa Parasappa Sangolli , AIR 1979 Kant 154 [LNIND 1978 KANT 202]; Mejibhai
Khimji Vira v. Chaturbhai Taljabhai , AIR 1977 Guj 195 [LNIND 1977 GUJ 25]; Chairman A.P. S.R.T.C. v.
Smt. Shajiya Khatoon , AIR 1985 AP 83 [LNIND 1984 AP 218]. See pp. 125 to 126.
43
472] : AIR 1987 SC 1690 : (1987) SCC (Cri) 482 [LNIND 1987 SC 472]. See pp. 121 to 123.
44
H.P. State Road Transport Corpn. v. Pt. Jai Ram, 1980 ACJ 1 (HP); Chairman APSRTC v. Smt. Shajiya
Khatoon , AIR 1985 AP 83 [LNIND 1984 AP 218].
45
AIR 1994 SC 1631, p. 1636 : (1994) 2 SCC 176 : 1994 ACJ 1 : (1994) 1 KLT 67. See p. 126.
46
47
Sub-section (2A), ins. by Act No. 56 of 1969, s. 61 (w.e.f. 2-3-1970).
48
United India Insurance Co. Ltd. v. K.N. Surendran, AIR 1990 Ker 206 [LNIND 1989 KER 438]; Divisional
Manager United India Insurance Ltd. v. Lalbanga Saha, AIR 1999 Ori 193 [LNIND 1999 BOM 185].
49
National Insurance Co. Ltd. v. Smt. Tulsi Devi, AIR 1988 Raj 191.
51
Subs. by Act No. 47 of 1982 (w.e.f. 1-10-1982).
52
United India Insurance Co. Ltd. v. Narendra Pandurang, AIR 1995 SC 782 : (1995) 1 SCC 320 [LNIND
1994 SC 1211] : 1995 ACJ 232.
53
Rajasthan State Road Transport Corporation v. Poonam Patwa, AIR 1997 SC 2951 : (1997) 6 SCC 100
[LNIND 1997 SC 2030].
55
Uttam Singh v. National Insurance Co. Ltd., AIR 1998 MP 199 [LNIND 1998 MP 441].
56
See Nahar Singh v. Manohar Kumar, AIR 1993 J & K 69 and cases referred to therein at p. 71.
57
For the words “an insurer” these words are substituted by Act No. 56 of 1969, s. 63 (w.e.f. 2-3-1970).
58
Sarmaniya Bai v. Madhya Pradesh Rajya Parivahan Nigam, AIR 1990 MP 306 [LNIND 1990 MP 297] (FB).
59
Page 32 of 32
These words are substituted by Act No. 100 of 1956, s. 81 (w.e.f. 16-2-1957).
60
Subs. by Act No. 3 of 1951, s. 3 and Sch.
61
63
End of Document
> APPENDIX II
(Came into force on 1/7/1989)

CHAPTER X LIABILITY WITHOUT FAULT IN CERTAIN CASES
Liability to pay compensation in certain cases on the principle of no fault.
(1) Where death or permanent disablement of any person has resulted from an accident arising out of
the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be,
the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of
such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of
any person shall be a fixed sum of 1 [fifty thousand rupees] and the amount of compensation
payable under that subsection in respect of the permanent disablement of any person shall be a
fixed sum of 2 [twenty five thousand rupees].
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and
was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles
concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act,
neglect or default of the person in respect of whose death or permanent disablement the claim has
been made nor shall the quantum of compensation recoverable in respect of such death or
permanent disablement be reduced on the basis of the share of such person in the responsibility
for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any
person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable
to pay compensation under any other law for the time being in force:
Provided that the amount of such compensation to be given under any other law shall be
reduced from the amount of compensation payable under this section or under section 163A].
COMMENT.—
S. 140 to S. 144 correspond to sections 92 A to 92E of the old Act and provide for liability without fault. The
Supreme Court in M.K. Kunhimohammed v. P.A. Ahmedkutty , AIR 1987 SC 2158 suggested that the
compensation amount payable under section 92A of the old Act for no fault liability should be increased.
Accordingly section 140 provides for payment of Rs. twenty-five Thousand in case of death and Rs. twelve
thousand in case of permanent disablement as compensation; when under the old. Act the compensation
payable was Rs. fifteen thousand in case of death and Rs. seven thousand five hundered in case of permanent
disablement. Section 140(2) is not retrospective. In an application pending under section 92A of the 1939 Act
when the 1988 Act came into force, compensation awardable is Rs. 15,000 for death and not Rs. 25,000. It
was so held in Prakash Chandumal Khatri v. Suresh Pahilajrai Makhija , AIR 1991 Bom 365 [LNIND 1991
Page 2 of 3
BOM 207]; The Oriental Insurance Co. Ltd. v. Sheela Ratnam , AIR 1997 Kerala 109 [LNIND 1996 KER 290]
(FB) and the cases referred to therein. But contrary view has been taken by the Rajasthan High Court in
Rajasthan State Road Transport Corporation v. Ogam , AIR 1992 Raj 61. The amendment by Act 54 of 1994
raising the amount of compensation from Rs. 25,000 to Rs. 50,000 in case of death has not been held
applicable to an accident taking place before the amendment: United India Insurance Ltd. v. Balubhai Limjibhai
Patel , AIR 1997 Guj 78 [LNIND 1996 GUJ 42]; State of Punjab v. Bhajan Kaur , AIR 2008 SC 2276 : (2008)
12 SCC 112 [LNIND 2008 SC 1117]. The insurance company in an enquiry for the liability under section 140
cannot raise the defences under section 149 and the Tribunal can direct the insurance company to pay the
amount subject to appropriate direction for reimbursement from the owners if finally it is not found liable.
National Insurance Company v. Thaglu Singh , AIR 1994 MP 177 [LNIND 1994 MP 350]. But this view does
not appear to be correct in view of the SC ruling in Yallwwa (Smt.) v. National Insurance Co. Ltd., (2007) 6
SCC 657 [LNIND 2007 SC 685] paras 10 and 11 : AIR 2007 SC 2582. An award made under section 140 is
appealable under section 173 : Yallwwa (Smt.) v. National Insurance Co. supra.
An injury which does not qualify for being called permanent disablement does not qualify for being
compensated under section 140 : K.P. Muhammad v. Devassia , AIR 2003 Ker 354 .
A married daughter though not a dependant of the deceased victim as she was maintained by her husband can
still apply under section 140 and will be entitled to full compensation as provided therein. Smt. Manjuri Bera v.
Oriental Insurance Co. Ltd., AIR 2007 SC 1474 : (2007) 10 SCC 643 [LNIND 2007 SC 400].
Provisions as to other right to claim compensation for death or permanent disablement.
(1) The right to claim compensation under section 140 in respect of death or permanent disablement of
any person shall be in addition to 4 [any other right except the right to claim under the scheme
referred to in section 163A (such other right hereafter] in this section referred to as the right on the
principle of fault) to claim compensation in respect thereof under any other provisions of this Act
or of any other law for the time being in force].
(2) A claim for compensation under section 140 in respect of death or permanent disablement of any
person shall be disposed of as expeditiously as possible and where compensation is claimed in
respect of such death or permanent disablement under section 140 and also in pursuance of any
right on the principle of fault, the claim for compensation under section 140 shall be disposed of as
aforesaid in the first place.
(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent
disablement of any person, the person liable to pay compensation under section 140 is also liable
to pay compensation in accordance with the right on the principle of fault, the person so liable shall
pay the first-mentioned compensation and—
(a) if the amount of the first-mentioned compensation is less than the amount of the second-
mentioned compensation, he shall be liable to pay (in addition to the first-mentioned
compensation) only so much of the second-mentioned compensation as is equal to the amount
by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the
second-mentioned compensation, he shall not be liable to pay the second-mentioned
compensation.
Permanent disablement.
For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted
from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered
by reason of the accident, any injury or injuries involving:—
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member
or joint; or
Page 3 of 3
(b) destruction or permanent impairing of the powers of any member or joint; or

(c) permanent disfiguration of the head or face.
To fall within the definition the injury need not be one which affects working capacity: Satosh Kumar v. Sanjay
More , AIR 1999 MP 62 [LNIND 1998 MP 428]. Partial disability of 8% due to fracture of right hand is not
permanent disability: Rajesh v. Dalip , AIR 1999 MP 66 [LNIND 1998 MP 385].
Applicability of Chapter to certain claims under Act 8 of 1923.
The provisions of this Chapter shall also apply in relation to any claim for compensation in respect of
death or permanent disablement of any person under the Workmen's Compensation Act, 1923 (8 of
1923) resulting from an accident of the nature referred to in Sub-section (1) of section 140 and for this
purpose, the said provisions shall, with necessary modifications, be deemed to form part of that Act.
Overriding effect.
The provisions of this Chapter shall have effect notwithstanding anything contained in any other provision of
this Act or of any other law for the time being in force.
1
Subs. by Act 54 of 1994, sec. 43, for the words “twenty five thousand rupees” (w.e.f. 14-11- 1994).
2
Subs. by Act 54 of 1994, s. 43, for the words “twelve thousand rupees” (w.e.f. 14-11-1994).
4
Subs. by Act 54 of 1994, sec. 44, for the words “any other right hereafter” (w.e.f. 14-11-1994).
End of Document
> APPENDIX II
CHAPTER XI INSURANCE OF MOTOR VEHICLES AGAINST THIRD PARTY RISKS
145. In this Chapter,—
Definition.
(a) “authorised insurer” means an insurer for the time being carrying on general insurance business in
India under the General Insurance Business (Nationalisation) Act, 1972, (57 of 1972), and any
Government insurance fund authorised to do general insurance business under that Act;
(b) “certificate of insurance” means a certificate issued by an authorized insurer in pursuance of sub-
section (3) of section 147 and includes a cover note complying with such requirements as may be
prescribed, and where more than one certificate has been issued in connection with a policy, or
where a copy of a certificate has been issued, all those certificates or that copy, as the case may
be;
(c) “liability”, wherever used in relation to the death of or bodily injury to any person, includes liability
in respect thereof under section 140 ;
(d) “Policy of insurance” includes “certificate of insurance”;
(e) “property” includes goods carried in the motor vehicle, roads, bridges, culverts, causeways, trees,
posts and mile-stones;
(f) “reciprocating country” means any such country as may on the basis of reciprocity be notified by
the Central Government in the Official Gazette to be a reciprocating country for the purpose of this
Chapter;
(g) “third party” includes the Government.
COMMENT.—
This section corresponds to section 93 of the old Act.
Necessity for insurance against third party risk

(1) No person shall use, except as a passenger, or cause or allow any other person to use a motor
vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person
or that other person, as the case may be, a policy of insurance complying with the requirements of
this Chapter:
Page 2 of 17
1 [Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous
goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6
of 1991)].
Explanation.—A person driving a motor vehicle merely as a paid employee, while there is in
force in relation to the use of the vehicle no such policy as is required by this sub-section, shall
not be deemed to act in contravention of the sub-section unless he knows or has reason to
believe that there is no such policy in force.
(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State
Government and used for Government purposes unconnected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any
vehicle owned by any of the following authorities, namely:—
(a) the Central Government or a State Government, if the vehicle is used for Government purposes
connected with any commercial enterprise;
(b) any local authority;
(c) any State transport undertaking:
Provided that no such order shall be made in relation to any such authority unless a fund has
been established and is maintained by that authority in accordance with the rules made in that
behalf under this Act for meeting any liability arising out of the use of any vehicle of that
authority which that authority or any person in its employment may incur to third parties.
Explanation. —For the purposes of this sub-section, “appropriate Government” means the
Central Government or a State Government, as the case may be, and—
(i) in relation to any corporation or company owned by the Central Government or any State
Government, means the Central Government or that State Government;
(ii) in relation to any corporation or company owned by the Central Government and one or more
State Governments, means the Central Government;
(iii) in relation to any other State transport undertaking or any local authority, means that
Government which has control over that under-taking or authority.
COMMENT.—
This section corresponds to section 94 of the old Act. The obligation to comply with section 146 is on the owner
and it is he who has to obtain the requisite policy of insurance and he cannot pass on this responsibility to the
Bank which financed the purchase of the vehicle: Pradeep Kumar Jain v. City Bank , JT 1999 (5) SC 639
[LNIND 1999 SC 682].
Requirements of policies and limits of liability.

(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy
which—
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-
section (2)—
(i) against any liability which may be incurred by him in respect of the death of or bodily 2
[injury to any person, including owner of the goods or his authorised representative carried
in the vehicle] or damage to any property of a third party caused by or arising out of the use
of the vehicle in a public place.
Page 3 of 17
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by
or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required—
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the
employee of a person insured by the policy or in respect of bodily injury sustained by such an
employee arising out of and in the course of his employment other than a liability arising under
the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury
to, any such employee—
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets
on the vehicle, or
(ii) to cover any contractual liability.
Explanation .—For the removal of doubts, it is hereby declared that the death of or bodily injury
to any person or damage to any property of a third party shall be deemed to have been caused
by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the
person who is dead or injured or the property which is damaged was not in public place at the
time of accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall
cover any liability incurred in respect of any accident, upto the following limits, namely:—
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately
before the commencement of this Act, shall continue to be effective for a period of four months
after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the
insurer in favour of the person by whom the policy is effected a certificate of insurance in the
prescribed form and containing the prescribed particulars of any condition subject to which the
policy is issued and of any other prescribed matters; and different forms, particulars and matters
may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made
thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall,
within seven days of the expiry of the period of the validity of the cover note, notify the fact to the
registering authority in whose records the vehicle to which the cover note relates has been
registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a
policy of insurance under this section shall be liable to indemnify the person or classes of persons
specified in the policy in respect of any liability which the policy purports to cover in the case of
that person or those classes of persons.
COMMENT.—
This section corresponds to section 95 of the old Act. There are however two material changes. First, that there
is no provision corresponding to the second proviso to section 95(1) of the old Act. This proviso enacted that a
statutory policy shall not be required “except where the vehicle is a vehicle in which passengers are carried for
hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the
death or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at
Page 4 of 17
the time of the occurrence of the event out of which a claim arises”. Because of this change all persons
including gratuitous passengers carried in a motor vehicle e.g. in a private motor-car will be covered by
statutory insurance as ‘any person’ under section 147(1) (b)(i) ; New India Assurance Co. v. Satpal Singh, AIR
2000 SC 235 : (2000) 1 SCC 237 [LNIND 1999 SC 1085]. But passengers travelling in a goods vehicle except
‘owner of the goods or his authorised representative carried in the vehicle’ (expressly added by 1994
amendment) are still not covered; owner of the goods or his authorised representative will be covered only after
the 1994 amendment, the amendment not being clarificatory will not apply to accidents taking place before its
enforcement on 14th Nov. 1994 : New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 [LNIND 2002
SC 766] : AIR 2003 SC 607; Oriental Insurance Co. Ltd. v. Devireddy Kondareddy, (2003) 2 SCC 339 [LNIND
2003 SC 93] : AIR 2003 SC 1009; Oriental Insurance Co. Ltd. v. Brij Mohan, (2007) 7 SCC 56 : AIR 2007 SC
1971 (tractor trolley-labourer not covered); United India Insurance Co. Ltd. v. Serjerao, (2008) 7 SCC 425
[LNIND 2007 SC 1332] : AIR 2008 SC 460 (tractor trolley-labourer not covered); New India Insurance Co. v.
Darshan, (2008) 7 SCC 416 [LNIND 2008 SC 316] : (2008) 2 JT 430 (tractor trolley-labourer sitting on
mudguard not covered). National Insurance Co. v. Ajit Kumar , AIR 2003 SC 3093 : (2003) 9 SCC 668 [LNIND
2003 SC 734] ; National Insurance Co. Ltd. v. Chinnamma , AIR 2004 SC 4338, p. 4341 : (2004) 8 SCC 697
[LNIND 2004 SC 848] (tractor trailer used as goods vehicle), National Insurance Co. v. Baljit Kaur , AIR 2004
SC 1340 : (2004) 2 SCC 1 [LNIND 2004 SC 23] ; Pramod Kumar Agarwal v. Musfasi Begum , AIR 2004 SC
4300 (Insurer to pay first then recover from the owner).
It has been held that Asha Rani's case overrules Satpal Singh's case and gratuitous passengers whether in a
Goods vehicle or otherwise are not covered. Thus a pillion rider of a scooter was not covered by the Act policy:
United India Insurance Co. Ltd. Shimla v. Tilak Singh, (2006) 4 SCC 404 [LNIND 2006 SC 241] : AIR 2006 SC
1576. The law as summarised by Sinha J in Oriental Insurance Co. Ltd. v. Sudhakaran K.V., (2008) 7 SCC 428
[LNIND 2008 SC 1233] (para 25) : AIR 2008 SC 2729 is: “(I) The liability of the insurance Co. in a case of this
nature (third party insurance) is not extended to a pillion rider of the motor vehicle unless requisite amount of
premium is paid for covering his/her risk; (ii) the legal obligation under section 147 of the Act cannot be
extended to an injury or death of the owner of vehicle or pillion rider; (iii) the pillion rider on a two wheeler was
not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the
scooter and not on the part of the driver of another vehicle.”
In an accident occurring because of collision of a jeep and truck a gratitous passenger in the jeep died.
Negligence of driver of jeep was negatived on facts. Truck was held be solely responsible for the accident.
Truck not insured. Jeep insured for third party risks. Insurance Co. (Jeep) was not held liable for two reasons (i)
negligence of jeep negatived; (ii) the person dying was a gratitous passenger. Award could be passed against
the driver and owner of truck which was not insured; New India Insurance Co. Ltd. v. Bismillah Bai, (2009) 5
SCC 112 [LNIND 2009 SC 626] : (2009) 7 JT 79.
The second important change is that that the limits of liability of insurer as provided in old Section 95(2) (a) &
(b) do not find place in Section 147. The result is that the liability of insurer in all cases (except as to the
employees and damage to property) is to the full extent of the liability incurred.
A policy is not required to cover employees of the insured except those mentioned in proviso (1) to section 147
(b), so a seat cleaner or khalasi is not covered: Ramasryay singh v. New India Insurance Co. Ltd. , AIR 2003
SC 2877 : (2003) 10 SCC 664 [LNIND 2003 SC 568]. The liability required to be covered even in case of the
employees mentioned in the proviso is only in respect of compensation payable under the Workmen's
Compensation Act, 1923; Bhimavva v. Shankar , AIR 2004 kant 58 (FB); National Insurance Co. Ltd. v.
Prembai Patel , AIR 2005 SC 2337 : (2005) 6 SCC 172 [LNIND 2005 SC 388]. Owner of the vehicle is also not
required to be covered by statutory insurance under section 147 : Dhanraj v. New India Assurance Co. Ltd.,
(2004) 8 SCC 523. When owner of a vehicle who allows a minor to drive the vehicle violating sections 4 and 5
of the M.V. Act and accident happens, the insurance company gets absolved of the liability and the question of
deliberate breach is irrelevant: United India Insurance Co. Ltd. v. Rakesh Kumar Arora, AIR 2009 SC 24 :
(2008) 13 Scale 35 [LNINDORD 2008 SC 228].
Page 5 of 17
If a policy of insurance issued on the basis of a cheque is in force on the date of the accident the insurer will be
liable even if the policy be later cancelled because of dishonour of the cheque: New India Assurance Co. v.
Rula , AIR 2000 SC 1082 : (2000) 3 SCC 195 [LNIND 2000 SC 442] ; Oriental Insurance Co. Ltd. v. Inderjeet
Kaur, AIR 1998 SC 588 : (1998) 1 SCC 371 [LNIND 1997 SC 1572]. Cover note issued on the basis of a
cheque before the accident will make the insurer liable even if the cheque is dishonoured later and cover note
cancelled: National Insurance Co. Ltd. v. Abheysingh Pratap Singh Vaghela, (2008) 9 SCC 133 [LNIND 2008
SC 1735] : (2008) 9 JT 493. Interpreting the proviso to section 147(2) which continues a policy of insurance in
force immediately before the commencement of the new Act for a period of four months or till the date of its
expiry, it has been held that such a policy till it continues under the proviso will cover the full statutory liability
under sec. 142(2)(a) and not limited liability as provided in corresponding section 95 of the repealed Act:
National Insurance Co. Ltd. v. Beharial , (2000) 10 JT : AIR 2000 SC 3053.
‘Any passenger’ in section 147(1) (b)(ii) will mean a passenger authorised to be carried within the permitted
limit allowed to the vehicle: National Insurance Co. Ltd. v. Anjana Shyam, (2007) 7 SCC 445 [LNIND 2007 SC
974] (para 17) : AIR 2007 SC 2870. The liability of the insurance co. is, therefore, limited to the number of
passengers allowed to be carried and will not cover all the passengers in an overloaded bus. The case also
explains the method as to how the money deposited by the insurance co. is to be distributed: National
Insurance Co. v. Anjana Shyam supra, paras 18, 22 and 23.
Validity of policies of insurance issued in reciprocating countries.
Where, in pursuance of an arrangement between India and any reciprocating country, any motor
vehicle registered in the reciprocating country operates on any route or within any area common to the
two countries and there is in force in relation to the use of the vehicle in the reciprocating country, a
policy of insurance complying with the requirements of the law of insurance in force in the country,
then, notwithstanding anything contained in section 147 but subject to any rules which may be made
under section 164, such policy of insurance shall be effective throughout the route or area in respect of
which, the arrangement has been made, as if the policy of insurance had complied with the
requirements of this Chapter.
COMMENT.—
This section corresponds to section 95 -A of the old Act.
Duty of insurers to satisfy judgements and awards against persons insured in respect of third party risks
(1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of
the person by whom a policy has been effected, judgement or award in respect of any such liability
as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a
liability covered by the terms of the policy) 3 [‘or under the provisions of section 163A] is obtained
against any person insured by the policy, then, notwithstanding that the insurer may be entitled to
avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the
provisions of this section, pay to the person entitled to the benefit of the decree any sum not
exceeding the sum assured payable thereunder, as if he were the judgement debtor in respect of
the liability, together with any amount payable in respect of interest on that sum by virtue of any
enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgement or award
unless, before the commencement of the proceedings in which the judgement or award is given the
insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of
the proceedings, or in respect of such judgement or award so long as execution is stayed thereon
pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so
given shall be entitled to be made a party thereto and to defend the action on any of the following
grounds, namely:—
Page 6 of 17
(a) that there has been a breach of a specified condition of the policy, being one of the following
conditions, namely:—
(i) a condition excluding the use of the vehicle—
(ii) a condition excluding driving by a named person or persons or by any person who is not
duly licensed, or by any person who has been disqualified for holding or obtaining a driving
licence during the period of disqualification; or
(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact
or by a representation of fact which was false in some material particular.
(3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a
reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of
section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated
upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and
whether or not he is registered under the corresponding law of the reciprocating country) shall be
liable to the person entitled to the benefit of the decree in the manner and the extent specified in
sub-section (1), as if the judgment were given by a Court in India:
Provided that no sum shall be payable by the insurer in respect of any such judgment unless,
before the commencement of the proceedings in which the judgement is given, the insurer had
notice through the Court concerned of the bringing of the proceedings and the insurer to whom
notice is so given is entitled under the corresponding law of the reciprocating country, to be
made a party to the proceedings and to defend the action on grounds similar to those specified
in sub-section (2).
(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 of the person
by whom a policy has been affected, so much of the policy as purports to restrict the insurance of
the persons insured thereby by reference to any conditions other than those in clause (b) sub-
section (2) shall, as respects such liabilities as are required to be covered by a policy under clause
(b) of sub-section (1) of section 147, be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability of any
person which is covered by the policy by virtue only of this subsection shall be recoverable by
the insurer from that person.
(5) if the amount which an insurer becomes liable under this section to pay in respect of a liability
incurred by a person insured by a policy exceeds the amount for which the insurer would apart
form the provisions of this section be liable under the policy in respect of that liability, the insurer
shall be entitled to recover the excess from that person.
(6) In this section the expressions “material fact” and “material particular” means, respectively a fact or
particular of such a nature as to influence the judgment of a prudent insurer in determining whether
he will take the risk and, if so, at what premium and on what conditions, and the expression
“liability covered by the terms of the policy” means a liability which is covered by the policy or
which would be so covered but for the fact that the insurer is entitled to avoid or cancel or has
avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall
be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is
referred to in sub-section (1) or in such judgement as is referred to in sub-section (3) otherwise
than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating
country, as the case may be.
Explanation .—For the purposes of this section, “ Claims Tribunal ” means a Claims Tribunal
constituted under section 165 and “ award ” means an award made by that Tribunal under
section 168.
Page 7 of 17
COMMENT.—
This section generally corresponds to section 96 of the old Act. Defence under section 96(2) (a) is not open
under s. 149 as there is no corresponding provision in it. When accident took place at 1 p.m. on 17-10-1996 but
the cover note was issued at 2.30 p.m. on the same date, it was held that insurance company was not liable:
New India Ass. Co. Ltd. v. Rakesh Talwar , (2000) 7 JT 505 : (2000) 9 SCC 229 [LNIND 2000 SC 790] : 2000
SCC (Cri) 1497.
In a case of breach of condition on account of vehicle being driven by an unlicensed person, the insurer was
still held liable with right to recover the amount paid from the owner: New India Assurance Co. v. Kamala , AIR
2001 SC 1419 : (2001) 4 SCC 342 [LNIND 2001 SC 833] : 2001 SCC (Cri) 701 [LNIND 2001 SC 833]. If the
owner did not know that the driving licence of his driver was not genuine, there would be no breach of s. 149(2)
a(ii) and the insurer would not be absolved of liability if ultimately the licence is found to be fake. Even in cases
where the owner knowingly engaged an unlicensed driver, the insurance company will have to pay to the
innocent third party but it can recover the amount from the owner; United India Insurance Co. Ltd. v. Lehru,
(2003) 3 SCC 338 [LNIND 2003 SC 261] : AIR 2003 SC 1292. Further, the condition of 149(2)a(ii) is relevant
only in cases where the accident occurs because of the driver and not otherwise. Thus, if the vehicle caught
fire because of some mechanical defect and not as a result of the negligence of the driver in driving the vehicle
it was held that the insurance company could not deny its liability on the ground that the driver had no valid
licence; Jitendra Kumar v. Oriental Insurance Co. Ltd., (2003) 6 SCC 420 [LNIND 2003 SC 557], p. 427 : AIR
2003 SC 4161. The views expressed in these cases were confirmed in National Insurance Co. Ltd. v. Swarn
Singh , AIR 2004 SC 1531 : (2004) 3 SCC 297 [LNIND 2004 SC 20]. Thus now in accordance with the
authorities the insured cannot escape liability unless he proves that breach of condition was done knowingly or
negligently by the insured and further that the said breach had a causal connection with the accident; and even
in cases where the insurer is able to prove these facts he will have to satisfy the judgment against the insured
by paying to the claimant but he can recover the amount from the insured in the same proceedings. It is also
held in National Insurance Co.’s . case that a person holding a learner's licence is a duely licensed driver. (See
further Punam Devi v. Divisional Manager New India Assurance Co. Ltd. , AIR 2004 SC 1742 : (2004) 3 SCC
386 and National Insurance Corporation Ltd. v. Kanti Devi, (2005) 5 SCC 789 [LNIND 2005 SC 1079] : AIR
2005 SC 2850 where Swarn Singh's case is followed). The insurer can take the defences under section 149(2)
even in cases where the owner of the vehicle has not obtained a permit for plying the vehicle. But in such a
case also the insurer will have to satisfy the claimants and recover the amount from the owner/insured in the
same proceedings; National Insurance Co. Ltd. v. Challa Bharathamma, (2004) 8 SCC 517 [LNIND 2004 SC
958] : AIR 2004 SC 4882. The decision in Swaran Singh's case, it has been held, has no application to claims
by the owner against the insurer involving no third party: National Insurance Co. Ltd. v. Laxmi Narain Dhut,
(2007) 3 SCC 700 [LNIND 2007 SC 275] para 38 : AIR 2007 SC 1563; Oriental Insurance Co. Ltd. v. Meena
Variyal, (2007) 5 SCC 428 [LNIND 2007 SC 410] para 17 : AIR 2007 SC 1609; United India Insurance Co. Ltd.
v. Davinder Singh, (2007) 8 SCC 698 para 13 : AIR 2008 SC 329; Oriental Insurance Co. v. Prithvi Raj, (2008)
2 SCC 338 [LNIND 2008 SC 159] : AIR 2008 SC 1408.
A very liberal construction of the Motor Vehicles Act, for example which allows insurer to pay to the victim or his
dependents the sum awarded as compensation with liberty to recover it from the owner of the vehicle, which
very often is a futile exercise, even in cases where the insurer is able to establish one of the defences which
absolve him from liability and tendency to make optimum awards very often through the agency of Lok Adalats
are likely to have the effect of increasing the premium rates making them un-affordable or oppressive to the
community in general. [See, Business Times October 2005 under the Heading ‘Premium for your car insurance
may go up.] It is with this object that in certain jurisdictions there is pronounced shift against an approach of
achieving optimum recovery for persons injured in motor accidents and legislation has been introduced with
that object so that premiums are kept ‘affordable’. See in this context Alliance Australia Insurance Ltd. v. G.S.F.
Australia Pty. Ltd. , (2005) 79 ALJR 1079.
Page 8 of 17
The driver must have held an effective licence to make the Insurance Co. liable. Learner's licence of the driver
expiring on a date prior to the accident. The driver applying for regular licence after the accident. There is no
provision for automatic renewal of a learners licence. Insurance Co., therefore, not held liable Bhuwan Singh v.
Oriental Insurance Co., (2009) 5 SCC 136 [LNIND 2009 SC 527] : AIR 2009 SC 2177. Driver not holding
appropriate licence for the vehicle which caused the accident insure held not liable: New India Assurance
Company v. Roshanben Rahemansha Fakir, (2008) 8 SCC 253 [LNIND 2008 SC 1147] : AIR 2008 SC 2266.
Licence of driver not in force on the date of the accident, Insurance company will not be liable. National
Insurance Co. v. Vidyadhar, AIR 2009 SC 208 : (2008) 12 SCC 701 [LNIND 2008 SC 1857].
Third party risk only covered; Death of owner's son while driving his motor cycle; Insurance co. not liable to pay
compensation for the death of the son: New India Assurance Co. Ltd. v. Sadanand Mukhi, (2009) 2 SCC 417
[LNIND 2008 SC 2481] : AIR 2009 SC 1788.
The provision in section 149(2) can not be circumvented by the insurer by filing a writ petition instead of an
appeal to challenge the award: Bijoy Kumar Dugar v. Bidya Dhar Dutta, (2006) 3 SCC 242 para 17 : AIR 2006
SC 1255.
The insurer is restricted both before the tribunal and in appeal to the defences mentioned in section 149 (2) :
United India Assurance Co. Ltd. v. Member MACT Lakhimpur, AIR 1993 Gau 28 [LNIND 1992 GAU 58] (FB);
Anandram v. A.K. Jain , AIR 1999 J&K 29.
Right of third parties against insurers on insolvency of the insured

(1) Where under any contract of insurance effected in accordance with the provisions of this Chapter, a
person is insured against liabilities which he may incur to third parties, then,—
(a) in the event of the person becoming insolvent or making a composition or arrangement with his
creditors, or
(b) where the insured person is a company, in the event of a winding up order being made or a
resolution for a voluntary winding up being passed with respect the company or of a receiver or
manager of the company's business or undertaking being duly appointed, or of possession
being taken by or on behalf of the holders of any debentures secured by a floating charge of
any property comprised in or subject to the change, if either before or after that event, any such
liability is incurred by the insured persons, his rights against the insurer under the contract in
respect of the liability shall, notwithstanding anything to the contrary in any provision of law,
be transferred to and vest in the third party to whom the liability was so incurred.
(2) Where an order for the administration of the estate of a deceased debtor is made according to the
law of insolvency, then, if any debt provable in insolvency is owing by the deceased in respect of a
liability to a third party against which he was insured under a contract of insurance in accordance
with the provisions of this Chapter, the deceased debtor's rights against the insurer in respect of
that liability shall, notwithstanding anything to the contrary in any provision of law, be transferred
to and vest in the person to whom the debt is owing.
(3) Any condition in a policy issued for the purposes of this Chapter purporting either directly or
indirectly to avoid the policy or to alter the rights of the parties thereunder upon the happening to
the insured person of any of the events specified in clause (a) or clause (b) of sub-section (1) or
upon the making of an order for the administration of the estate of a deceased debtor according to
the law of insolvency shall be of no effect.
(4) Upon a transfer under sub-section (1) or sub-section (2), the insurer shall be under the same liability
to the third party as he would have been to the insured person, but—
(a) if the liability of the insurer to the insured person exceeds the liability of the insured person to
the third party, nothing in this Chapter shall affect the rights of the insured person against the
insurer in respect of the excess, and
Page 9 of 17
(b) if the liability of the insurer to the insured person is less than the liability of the insured person
to the third party nothing in this Chapter shall affect the rights of the third party against the
insured person in respect of the balance.
COMMENT.—
Duty to give information as to insurance

(1) No person against whom a claim is made in respect of any liability referred to in clause (b) of
subsection (1) of section 147 shall on demand by or on behalf of the person making the claim
refuse to state whether or not he was insured in respect of that liability by any policy issued under
the provisions of this Chapter, or would have been so insured if the insurer had not avoided or
cancelled the policy, nor shall he refuse, if he was or would have been so insured, to give such
particulars with respect to that policy as were specified in the certificate of insurance issued in
respect thereof.
(2) In the event of any person becoming insolvent or making a composition or arrangement with his
creditors or in the event of an order being made for the administration of the estate of a deceased
person according to the law of insolvency, or in the event of a winding up order being made or a
resolution for a voluntary winding up being passed with respect to any company or a receiver or
manager of the company's business or undertaking being duly appointed or of possession being
taken by or on behalf of the holders of any debentures secured by a floating charge on any
property comprised in or subject to the charge, it shall be the duty of the insolvent debtor, personal
representative of the deceased debtor or company, as the case may be, or the official assignee or
receiver in insolvency, trustee, liquidator, receiver or manager, or person in possession of the
property to give at the request of any person claiming that the insolvent debtor, deceased debtor or
company is under such liability to him as is covered by the provisions of this Chapter, such
information as may reasonably be required by him for the purpose of ascertaining whether any
rights have been transferred to and vested in him by section 150, and for the purpose of enforcing
such rights, if any; and any such contract of insurance as purports whether directly or indirectly to
avoid the contract or to alter the rights of the parties thereunder upon the giving of such
information in the events aforesaid, or otherwise to prohibit or prevent the giving thereof in the said
events, shall be of no effect.
(3) If, from the information given to any person in pursuance of subsection (2) or otherwise, he has
reasonable ground for supporting that there have or may have been transferred to him under this
Chapter rights against any particular insurer, that insurer shall be subject to the same duty as is
imposed by the said sub-section on the persons therein mentioned.
(4) The duty to give the information imposed by this section shall include a duty to allow all contracts of
insurance, receipts for premiums, and other relevant documents in the possession or power of the
person on whom the duty is so imposed to be inspected and copies thereof to be taken.
COMMENT.—
Settlement between insurers and insured persons

(1) No settlement made by an insurer in respect of any claim which might be made by a third party in
respect of any liability of the nature referred to in clause (b) or sub-section (1) of section 147 shall
be valid unless such third party is a party to the settlement.
Page 10 of 17
(2) Where a person who is insured under a policy issued for the purposes of this Chapter has become
insolvent, or where, if such insured person is a company, a winding up order has been made or a
resolution for a voluntary winding up has been passed with respect to the company, no agreement
made between the insurer and the insured person after the liability has been incurred to a third
party and after the commencement of the insolvency or winding up, as the case may be, nor any
waiver, assignment or other disposition made by or payment made to the insured person after the
commencement aforesaid shall be effective to defeat the rights transferred to the third party under
this Chapter, but those rights shall be the same as if no such agreement, waiver, assignment or
disposition or payment has been made.
COMMENT.—
Saving in respect of sections 150, 151 and 152

(1) For the purposes of sections 150, 151 and 152 a reference to “liabilities to third parties” in relation to
a person insured under any policy of insurance shall not include a reference to any liability of that
person in the capacity of insurer under some other policy of insurance.
(2) The provisions of sections 150, 151 and 152 shall not apply where a company is wound up
voluntarily merely for the purposes of reconstruction or of an amalgamation with another company.
COMMENT.—
This section corresponds to s. 100 of the old Act.
Insolvency of insured persons not to affect liability of insured or claims by third parties
Where a certificate of insurance has been issued to the person by whom a policy has been effected, the
happening in relation to any person insured by the policy of any such event as is mentioned in sub-
section (1) or sub-section (2) of section 150 shall, notwithstanding anything contained in this Chapter,
not affect any liability of that person of the nature referred to in clause (b) or sub-section (1) of section
147 ; but nothing in this section shall affect any rights against the insurer conferred under the
provisions of sections 150, 151 and 152 on the person to whom the liability was incurred.
COMMENT.—
Effect of death on certain causes of action
Notwithstanding anything contained in section 306 of the Indian Succession Act, 1925 (39 of 1925) the
death of a person in whose favour a certificate of insurance has been issued, if it occurs after the
happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be
a bar to the survival of any cause of action arising out of the said event against his estate or against
the insurer.
COMMENT.—
Effect of certificate of insurance

Page 11 of 17
When an insurer has issued a certificate of insurance in respect of a contract of insurance between the
insurer and the insured person, then —
(a) if and so long as the policy described in the certificate has not been issued by the insurer to the
insured, the insurer shall, as between himself and any other person except the insured, be deemed
to have issued to the insured person a policy of insurance conforming in all respects with the
description and particulars stated in such certificate; and
(b) if the insurer has issued to the insured the policy described in the certificate, but the actual terms of
the policy are less favourable to persons claiming under or by virtue of the policy against the
insurer either directly or through the insured than the particulars of the policy as stated in the
certificate, the policy shall, as between the insurer and any other person except the insured, be
deemed to be in terms conforming in all respects with the particulars stated in the said certificate.
COMMENT.—
This section corresponds to section 103 of the old Act. Premium was paid a day before the accident and the
company had agreed to issue a policy of insurance but the policy could not be issued because of closure of the
insurance office. The insurance company on these facts was held liable on the reasoning that issuance of
policy was a ministerial act and the policy must be deemed to have been issued; but section 156 was not
referred; United India Insurance Co. Ltd. v. Smt. Gulaichi Devi , AIR 1995 All 269 [LNIND 1994 ALL 448]. A
policy was renewed at 4 P.M. when the accident had taken place at 10 A.M. on the same date, yet the
company was held liable; United India Insurance Company Ltd. v. Master Bunty , AIR 1995 J&K 72; see further
the Oriental Fire & General Insurance Co. Ltd. v. Ram Singh , AIR 1995 MP 171 [LNIND 1994 MP 184]. When
the policy mentions the date and also the time from which it becomes effective, it cannot relate back to the
previous midnight and any accident occurring before the time mentioned will not be covered: Oriental
Insurance Co. Ltd. v. Sunita Rathi , AIR 1998 SC 257 : (1998) 1 SCC 365; New India Assurance Co. Ltd. v.
Sita Bai , AIR 1999 SC 3577 : (1999) 7 SCC 575 [LNIND 1999 SC 794].
Transfer of certificate of insurance

(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the
provisions of this Chapter transfers to another person the ownership of the motor vehicle in
respect of which such insurance was taken together with the policy of insurance relating thereto,
the certificate of insurance and the policy described in the certificate shall be deemed to have been
transferred in favour of the person to whom the motor vehicle is transferred with effect from the
date of its transfer.
4 [Explanation. —For the removal of doubts, it is hereby declared that such deemed transfer
shall include transfer of rights and liabilities of the said certificate of insurance and policy of
insurance].
(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to
the insurer for making necessary changes in regard to the fact of transfer in the certificate of
insurance and the policy prescribed in the certificate in his favour and the insurer shall make the
necessary changes in the certificate and the policy of insurance in regard to the transfer of
insurance.
COMMENT.—
This section generally corresponds to s. 104 of the old Act. There is, however, a material change that under s.
157 the transfer of ownership of vehicle automatically transfers the certificate of insurance in favour of the
transferee of the vehicle. But the fiction created by section 157(1) is limited to third party risks only and does
Page 12 of 17
not cover the transferee who is not a third party qua the vehicle; Complete Insulations (P.) Ltd. v. New India
Assurance Company Ltd ., AIR 1996 SC 586 : (1996) 1 SCC 221 [LNIND 1995 SC 1161].
Death of owner but policy continuing in his name as also renewed in his name by his widow or the bank. Driver
of the vehicle died in a motor accident. The insurance company is liable to pay compensation to the heirs of the
driver under the workmen's compensation Act: United Insurance Company v. Santra Devi, (2009) 1 SCC 558
[LNIND 2008 SC 2344] : (2008) 13 JT 372.
Production of certain certificates, licence and permit in certain cases

(1) Any person driving a motor vehicle in any public place shall, on being so required by a police officer
in uniform authorised in this behalf by the State Government, produce—
(a) the certificate of insurance;
(b) the certificate of registration;
(c) the driving licence; and
(d) in case of a transport vehicle, also the certificate of fitness referred to in section 56 and the
permit,
relating to the use of the vehicle.
(2) If, where owing to the presence of a motor vehicle in a public place an accident occurs involving
death or bodily injury to another person, the driver of the vehicle does not at the time produce the
certificates, driving licence and permit referred to in sub-section (1) to a police officer, he shall
produce the said certificates, licence and permit at the police station at which he makes the report
required by section 134.
(3) No person shall be liable to conviction under sub-section (1) or subsection (2) by reason only of the
failure to produce the certificate of insurance if, within seven days from the date on which its
production was required under sub-section (1), or as the case may be, from the date of occurrence
of the accident, he produces the certificate at such police station as may have been specified by
him to the police officer who required its production or, as the case may be, to the police officer at
the site of the accident or to the officer in charge of the police station at which he reported the
accident:
Provided that except to such extent and with such modifications as may be prescribed, the
provisions of this sub-section shall not apply to the driver of a transport vehicle.
(4) The owner of a motor vehicle shall give such information as he may be required by or on behalf of a
police officer empowered in this behalf by the State Government to give for the purpose of
determining whether the vehicle was or was not being driven in contravention of section 146 and
on any occasion when the driver was required under this section to produce his certificate of
insurance.
(5) In this section, the expression “produce his certificate of insurance” means produce for
examination the relevant certificate of insurance of such other evidence as may be prescribed that
the vehicle was not being driven in contravention of section 146.
5 [(6) As soon as any information regarding any accident involving death or bodily injury to any
person is recorded or report under this section is completed by a police officer, the officer
incharge of the police station shall forward a copy of the same within thirty days from the date
of recording of information or, as the case may be, on completion of such report to the Claims
Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is
made available to the owner, he shall also within thirty days of receipt of such report, forward
the same to such Claims Tribunal and Insurer].
Page 13 of 17
COMMENT.—
The supreme court has issued directions to strictly comply the provisions of section 158(6) : General Insurance
Company v. State of Andhra Pradesh, AIR 2007 SC 2696 : (2007) 12 SCC 354 [LNIND 2007 SC 835].
Production of certificate of insurance on application for authority to use vehicle
A State Government may make rules requiring the owner of any motor vehicle when applying whether
by payment of a tax or otherwise for authority to use the vehicle in a public place to produce such
evidence as may be prescribed by those rules to the effect that either—
(a) on the date when the authority to use the vehicle comes into operation there will be in force the
necessary policy of insurance in relation to the use of the vehicle by the applicant or by other
persons on his order or with his permission, or
(b) the vehicle is a vehicle to which section 146 does not apply.
COMMENT.—
Duty to furnish particulars of vehicle involved in accident
A registering authority or the officer in charge of a police station shall, if so required by a person who
alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a
motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any
motor vehicle, furnish to the person or to that insurer, as the case may be, on payment of the
prescribed fee any information at the disposal of the said authority or the said police officer relating to
the identification marks and other particulars of the vehicle and the name and address of the person
who was using the vehicle at the time of the accident or was injured by it and the property, if any,
damaged in such form and within such time as the Central Government may prescribe.
COMMENT.—
Special provisions as to compensation in case of hit and run motor accident

(1) For the purposes of this section, section 162 and section 163 —
(a) “grievous hurt” shall have the same meaning as in the Indian Penal Code (45 of 1860);
(b) “hit and run motor accident” means an accident arising out of the use of a motor vehicle or
motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the
purpose;
(c) “scheme” means the scheme framed under section 163.
(2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972
or any other law for the time being in force or any instrument having the force of law, the General
Insurance Corporation of India formed under section 9 of the said Act and the insurance companies
for the time being carrying on general insurance business in India shall provide for paying in
accordance with the provisions of this Act and the scheme, compensation in respect of the death
of, or grievous hurt to, persons resulting from hit and run motor accidents.
Page 14 of 17
(3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation—
(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of
6 [twenty-five thousand rupees];
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed
sum of 7 [twelve thousand and five hundred rupees].
(4) The provisions of sub-section (1) of section 166 shall apply for the purpose of making applications
for compensation under this section as they apply for the purpose of making applications for
compensation referred to in that sub-section.
COMMENT.—
Refund in certain cases of compensation paid under section 161

(1) The payment of compensation in respect of the death of, or grievous hurt to, any person under
section 161 shall be subject to the condition that if any compensation (hereafter in this sub-section
referred to as the other compensation) or other amount in lieu of or by way of satisfaction of a
claim for compensation is awarded or paid in respect of such death or grievous hurt under any
other provision of this Act or any other law or otherwise so much of the other compensation or
other amount aforesaid as is equal to the compensation paid under section 161 shall be refunded
to the insurer.
(2) Before awarding compensation in respect of an accident involving the death of, or bodily injury to,
any person arising out of the use of a motor vehicle or motor vehicles under any provision of this
Act (other than section 161 ) or any other law, the tribunal, court or other authority awarding such
compensation shall verify as to whether in respect of such death or bodily injury compensation has
already been paid under section 161 or an application for payment of compensation is pending
under that section, and such tribunal, court or other authority shall,—
(a) if compensation has already been paid under section 161, direct the person liable to pay the
compensation awarded by it to refund to the insurer, so much thereof as is required to be
refunded in accordance with the provisions of sub-section (1);
(b) if an application for payment of compensation is pending under section 161 forward the
particulars as to the compensation awarded by it to the insurer.
Explanation. —For the purposes of this sub-section, an application for compensation under
section 161 shall be deemed to be pending—
(i) if such application has been rejected, till the date of the rejection of the application, and
(ii) in any other case, till the date of payment of compensation in pursuance of the application.
COMMENT.—
This section corresponds to section 109 -B of the old Act.
Scheme for payment of compensation in case of hit and run motor accidents
(1) The Central Government may, by notification in the Official Gazette, make a scheme specifying, the
manner in which the scheme shall be administered by the General Insurance Corporation, the form,
manner and the time within which applications for compensation may be made, the officers or
authorities to whom such applications may be made, and the procedure to be followed by such
officers or authorities for considering and passing orders on such applications, and all other
Page 15 of 17
matters connected with, or incidental, to the administration of the scheme and the payment of
compensation.
(2) A scheme made under sub-section (1) may provide that—
(a) a contravention of any provision thereof shall be punishable with imprisonment for such term as
may be specified but in no case exceeding three months, or with fine which may extend to such
amount as may be specified but in no case exceeding five hundred rupees or with both;
(b) the powers, functions or duties conferred or imposed on any officer or authority by such
scheme may be delegated with the prior approval in writing of the Central Government, by such
officer or authority to any other officer or authority;
(c) any provision of such scheme may operate with retrospective effect from a date not earlier than
the date of establishment of the Solatium Fund under the Motor Vehicles Act, 1939 (4 of 1939)
as it stood immediately before the commencement of this Act:
Provided that no such retrospective effect shall be given so as to prejudicially affect the
interest of any person who may be governed by such provision.
COMMENT.—
This section corresponds to section 109 -C of the old Act.
Special provisions as to payment of compensation on structured furmula basis.

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or
instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall
be liable to pay in the case of death or permanent disablement due to accident arising out of the
use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the
victim, as the case may be.
Explanation. —For the purposes of this sub-section, “permanent disability” shall have the same
meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or
was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned
or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official
Gazette, from time to time amend the Second Schedule.
COMMENT.—
Section 163A is entirely a new provision for award of compensation on no fault liability in addition to and as an
alternative to a claim under section 140. The compensation payable is related to the annual income of the
deceased or the victim and the multiplier applicable is related to his age. The minimum compensation payable
is Rs. 50,000. If a person had no income before the accident, he would be deemed to have an income of Rs.
15,000 per annum for purposes of compensation. The schedule is ambiguous in many respects and will need
clarification from courts.
Second Schedule added by the Motor Vehicles Amendment Act, 54 of 1994 suffers from many defects and can
only serve as guide as explained by the Supreme Court in U.P. State Road Transport Corporation v. Trilok
Chandra , 1996 (4) Scale 522, pp. 527, 528 as follows: “We must at once point out that the calculation of
compensation and the amount worked out in the schedule suffer from several defects. For example, in item No.
1 for a victim aged 15 years, the multiplier is shown to be 15 years’ and the multiplicand is shown to be Rs.
Page 16 of 17
3,000. The total should be 3,000 15 = 45,000 but the same is worked out at Rs. 60,000. Similarly, in the
second item the multiplier is 16 and the annual income is Rs. 9,000; the total should have been Rs. 1,44,000
but is shown to be Rs. 1,71,000. To put it briefly, the table abounds in such mistakes. Neither the Tribunals nor
the Courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier
cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor,
dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the
choice of the multiplier. But these mistakes are limited to actual calculations only and not in respect of other
items. What we propose to emphasise is that the multiplier cannot exceed 18 year's purchase factor. This is
the improvement over the earlier position that ordinarily it should not exceed 16.” The Court also advised
amendment of the Schedule. Although the second schedule indicates the multiplier with reference to the age of
the deceased and does not refer to the age of the dependants, it has been held that the multiplier should be
selected appropriate to the age of the deceased or the age of the dependents and whichever multiplier is lower
should be applied in calculating the compensation: H.S. Ahammed Hussain v. Irfan Ahammed , AIR 2002 SC
2483, p. 2486. The court may in exceptional cases depart from the guidelines provided in the schedule so that
the compensation awarded is just and fair in the circumstances of the case. Abati Bezbaruah v. Geological
Survey of India, (2003) 3 SCC 148 [LNIND 2003 SC 195] para 11 : AIR 2003 SC 1817; Sapna v. United India
Assurance Co., (2008) 7 SCC 613 [LNIND 2008 SC 1192] para 10 : AIR 2008 SC 2281.
The decision of the Supreme Court in the Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala , AIR 2001 SC
1832 lays down: (1) Recourse to section 163A will be a bar not only for claiming compensation under section
140 but will also be a bar for claiming compensation under the common law or Fatal Accidents Act on the
ground of fault or otherwise; (2) the benefit of section 163A can be availed of by the claimant by restricting his
claim on the basis of income of Rs. 40,000 which is the highest slab in the schedule; (3) the schedule should
be amended as directed in the case of Trilok Chandra . The case of Hanraj v. Kodala, supra has been affirmed
by a three judge Bench in Deepal Girishbhai Soni v. United Insurance Co. Ltd. , AIR 2004 SC 210 : (2004) 5
SCC 385 [LNIND 2004 SC 358]. It was held in this case that a claimant cannot pursue both, a claim under
section 163A and a claim under section 166 on the ground of fault. The Supreme Court relied upon the table in
the schedule for fixing the quantum of compensation in a case where the accident occurred when the 1939 Act
was in force and the schedule was not applicable: Kaushneema Begum v. The New India Assurance Co. Ltd.,
(2001) 1 JT 375. Also see New India Assurance Co. v. Pratap Narain Agnihotri , AIR 1999 MP 53 [LNIND
1998 MP 286]. After applying the multiplier as indicated in the schedule the amount arrived at is to be reduced
by 1/3 as directed therein and there is no discretion not to reduce the amount: R.S.R. JC Barmer v. Chandra ,
AIR 2001 Raj 168. The Schedule is not retrospective: United India Insurance Co. v. Mehtab Bai , AIR 1999 Raj
293; Maitri Koley v. New India Assurance Co., (2003) 8 SCC 718 [LNIND 2003 SC 947] : (2003) 9 JT 159.
Choice of the multiplier is determined by the age of the deceased or the claimant whichever age is higher:
Ramesh Singh v. Satbir Singh, (2008) 2 SCC 667 [LNIND 2008 SC 110] : AIR 2008 SC 1233. In cases filed
under section 163A ordinarily the compensation should be determined according to schedule II: Bangalore
Metropolitan Transport Corporation v. Sarojamma, (2008) 5 SCC 142 [LNIND 2008 SC 2860] paras 6 to 8 : AIR
2008 SC 3244. When the claim is for death or injury to the owner in the accident section 163A is not applicable.
The liability in such a case will depend on the terms of the insurance policy and not under section 163A:
Oriental Insurance Co. Ltd. v. Rajani Devi, (2008) 5 SCC 236. The reference to the workmen's Compensation
Act in the explanation is only for purposes of section 163A and not for section 166 of the Act: Rajesh Kumar v.
Yudhvir Singh, (2008) 7 SCC 305 [LNIND 2008 SC 1170] para 10 : AIR 2008 SC 2396.
Option to file claim in certain cases.
Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the
claim under either of the said sections and not under both].
Power of Central Government to make rules

(1) The Central Government may make rules for the purpose of carrying into effect the provisions of
this Chapter, other than the matters specified in section 159.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for—
Page 17 of 17
(a) the forms to be used for the purposes of this Chapter;

(b) the making of applications for and the issue of certificates of insurance;
(c) the issue of duplicates to replace certificates of insurance lost, destroyed or mutilated;
(d) the custody, production, cancellation and surrender of certificates of insurance;
(e) the records to be maintained by insurers of policies of insurance issued under this Chapter;
(f) the identification by certificates or otherwise of persons of vehicles exempted from the
provisions of this Chapter;
(g) the furnishing of information respecting policies of insurance by insurers;
(h) adopting the provisions of this Chapter to vehicles brought into India by persons making only a
temporary stay therein or to vehicles registered in a reciprocating country and operating on any
route or within any area in India by applying those provisions with prescribed modifications;
(i) the form in which and the time limit within which the particulars referred to in section 160 may be
furnished; and
(j) any other matter which is to be, or may be, prescribed.
COMMENT.—

1
Ins. by Act 54 of 1994, sec. 45 (w.e.f. 14-11-1994).
2
Subs. by Act 54 of 1994, sec. 46, for “injury to any person” (w.e.f. 14-11-1994).
3
4
5
Subs. by Act 54 of 1994, sec. 49 (w.e.f. 14-11-1994).
6
Subs. by Act 54 of 1994, sec. 50, for “eight thousand and five hundred rupees” (w.e.f. 14-11- 1994).
7
Subs. by ibid. , for “two thousand rupees” (w.e.f. 14-11-1994).
End of Document
> APPENDIX II
CHAPTER XII CLAIMS TRIBUNALS
Claims Tribunals
(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents
Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be
specified in the notification for the purpose of adjudicating upon claims for compensation in respect of
accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or
damages to any property of a third party so arising, or both.
Explanation.— For the removal of doubts, it is hereby declared that the expression “claims for
compensation in respect of accidents involving the death of or bodily injury to person arising out of the
use of motor vehicles” includes Claims for compensation under section 140 1 [and section 163A].
(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to
appoint and where it consists of two or more members, one of them shall be appointed as the Chairman
thereof.
(3) A person shall not be qualified for appointment as a member of Claims Tribunal unless he—
(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a High Court Judge [or as a District Judge].
(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or
special order, regulate the distribution of business among them.
COMMENT.—
The expression ‘accident arising out of use of motor vehicle’ has been liberally construed. Thus in a case
where an autorickshaw driver employed by the owner was murdered by the passengers for stealing the
rickshaw, the murder was held to be an ‘accident’ falling within the said expression and the dependants of the
driver were held entitled to compensation: Rita Devi v. New India Assurance Co. Ltd. , AIR 2000 SC 1930.
Accident taking place when the vehicle is stationery may also arise out of the use of the motor vehicle:
Medikanda Narasamma v. Shaik Basheer Ahmed , AIR 2001 AP 114 [LNIND 2000 AP 712]; United India
Insurance Company Ltd. v. Amir Basha , AIR 2003 Mad 237 [LNIND 2002 MAD 1448]. The expression has
also been construed to cover a case where workmen engaged in loading a motor vehicle were electrocuted
due to high tension wire drawn above the place where the loading was taking place: Babu v Remesen , AIR
1996 Ker 95 [LNIND 1995 KER 188]. But kidnapping of passengers from bus and their murder by unknown
extremists has not been held to arise out of the use of motor vehicle: Oriental Insurance Co. v. Jharna Sarkar ,
Page 2 of 21
AIR 2000 Gau 189 . In another case, escape of phenol, when a phenol carrying tanker overturned, polluted
wells in adjoining area. The claimants fell sick on consumption of polluted water. Damage to property and
personal injury in this case had no direct connection to the use of motor vehicle and civil suits filed by
claimants, were held to be maintainable; United India Insurance Co. Ltd. v. P.N. Thomas , AIR 1999 Ker 174
[LNIND 1998 KER 449].
Application for compensation
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of
section 165 may be made—
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased;
or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the
deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for
compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the
deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the
application.
2[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims
Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within
the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of
whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be
prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the
application shall contain a separate statement to that effect immediately before the signature of the
applicant.]
3 [* * *]
4[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158
as an application for compensation under this Act].
COMMENT.—
This section corresponds to section 110 -A of the old Act. Sub section (3) of section 166 which provided a
period of limitation of six months with a provision for condonation of delay for another six months has been
omitted. So now there is no period of limitation for making an application under section 166. Sub section (3)
was interpreted to mean that the general provisions of condonation and extension of limitation contained in the
Limitation Act were not applicable to a claim petition under section 166. Thus even a minor claimant was not
able to get extension of limitation beyond 12 months; Kumari Poonam v. Phoolchand , AIR 1995 All 5 [LNIND
1994 ALL 260]. This led to hardship in many cases. The deletion of section 166(3) from 14-11-1994, though not
in terms retrospective, has been applied, having regard to its object to pending (at any stage) claims and in
respect of claims not filed even though they had become barred under section 166(3) : Dhannalal v. D.P.
Vijayvargiya , 1996 (4) Scale 458 [LNIND 1996 SC 934], pp. 461, 462 : AIR 1996 SC 155, pp. 2157, 2158 :
(1996) 4 SCC 652 [LNIND 1996 SC 934] : 1996 SCC (Cri) 816. The change in section 166(3) by the amending
Act has also been applied to claims under the old Act: Mani Devi v. H.P. State Electricity Board, AIR 1997 HP
Page 3 of 21
72 [LNIND 1996 HP 2]. A legal representative who has not suffered any loss may not be allowed any share in
the award; Latif Ahmad Khan v. The U.P. Transport Corporation , AIR 1995 All 297 [LNIND 1995 ALL 4].
Option regarding claims for compensation in certain cases
Notwithstanding anything contained in the Workmen's Compensation Act, 1923, (8 of 1923), where the death
of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the
Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the
provisions of Chapter X claim such compensation under either of those Acts but not under both.
COMMENT.—
This section corresponds to section 110 -AA of the old Act.
A claimant having elected his remedy under the workmen's Compensation Act cannot invoke provisions of the
Motor Vehicles Act except those in Chapter X of the Act relating to no fault liability: National Insurance Co. Ltd.
v. Mastan, (2006) 2 SCC 644 : AIR 2006 SC 577.
Award of the Claims Tribunal
(1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after
giving notice of the application to the insurer and after giving the parties (including the insurer) an
opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may make an award determining the amount of compensation
which appears to it to be just and specifying the person or persons to whom compensation shall be paid
and in making the award and Claims Tribunal shall specify the amount which shall be paid by the insurer or
owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of
the death or permanent disablement of any person, such claim and any other claim (whether made in
such application or otherwise) for compensation in respect of such death or permanent disablement
shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and
in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such
award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the
entire amount awarded in such manner as the Claims Tribunal may direct.
COMMENT.—
This section corresponds to section 110 -B of the old Act. When the vehicle is in possession of the hirer under
a hire purchase agreement he should be deemed to be the owner and joined as a party and the financier is not
to be joined; PTR Bava v. Pourakath Cheriya Bava , AIR 2004 Ker 162 [LNIND 2003 KER 579]. The hirer in
possession is the owner and financer cannot be treated as owner: Godavari Finance Company v. Degla
Satyanarayanamma, (2008) CPJ 30 : AIR 2008 SC 2493 : (2008) 5 SCC 107 [LNIND 2008 SC 879].
The tribunal has power to give directions for deposit of the amount awarded in Bank and its withdrawal. New
India Assurance Co. v. Madapi Naramma , AIR 1990 AP 11 [LNIND 1989 AP 142].
Page 4 of 21
The insurer can be held liable only when the insured is held liable: Oriental Insurance Co. Ltd. v. Sumitha
Rathi, AIR 1998 SC 257 : (1998) 1 SCC 365 : (1998) ACJ 121.
In case of damage to a car by the negligent driving of another car resulting in collision the claimant may in
addition to cost of repair be entitled to be compensated for hiring a car during the period his car was
undergoing repair: Dimond v. Lovell, (2000) 2 All ER 897, p. 623 (HL); Lagden v. Oconnar , (2004) 1 All ER
277 (HL).
In case of collision of two vehicles, where both the drivers were equally negligent, the claimant driver can
recover 50% of the compensation worked out from the owner of the other vehicle and insurer of that vehicle
and not from his own employer especially when neither he nor the insurer of the claimant drivers vehicle has
been joined as a party: Tamil Nadu State Transport Corporation v. Natrajan , AIR 2003 SC 2232 : (2003) 6
SCC 137 [LNIND 2003 SC 509].
When a vehicle has been requisitioned by the Government and accident takes place during the period of
requisition neither the owner nor the insurance co. will be liable and only the government will be liable as
owner: National Insurance Co. Ltd. v. Deepa Devi, (2008) 1 SCC 414 [LNIND 2007 SC 1449] : AIR 2008 SC
414.
There is no restriction that the Tribunal cannot award more compensation than what is claimed: Nagappa v.
Gurdayal Singh, (2003) 2 SCC 274 [LNIND 2002 SC 768] para 21; APRTC v. M. Ramadevi, AIR 2008 SC 1221
paras 8 and 9 : (2008) 3 SCC 379 [LNIND 2008 SC 168].
Procedure and powers of Claims Tribunals
(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in
this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath
and of enforcing the attendance of witnesses and of compelling the discovery and production of documents
and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be
deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of
Adjudicating upon any claim for compensation, choose one or more persons possessing special
knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.
COMMENT.—
This section corresponds to section 110C(1)(2)(3) of the old Act. The Tribunal has inherent power to correct
procedural and inadvertent errors : National Insurance Co. v. Lachchibai, AIR 1997 MP 172 [LNIND 1996 MP
22].
Impleading insurer in certain cases
Where in the course of any inquiry, the Claims Tribunal is satisfied that—
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made has failed to contest the claim, para it may, for reasons to be
recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as
Page 5 of 21
a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the
provisions contained in sub-section (2) of section 149, the right to contest the claim on all or any of the
grounds that are available to the person against whom the claim has been made.
COMMENT.—
This section corresponds to section 110C(2A) of the old Act. Without adopting the procedure under this section
the insurance company cannot challenge the compensation on merits: Shankarayya v. United Insruance Co.,
JT 1998 (4) SC 300 : AIR 1998 SC 2968 : (1998) 3 SCC 140 : 1998 ACJ 513.
Even if the insured fails to contest the award by filing an appeal, the Insurance company cannot file an appeal
and challenge the award on merits; unless the conditions under section 170 are satisfied: National Insurance
Co. Ltd. v. Nicoletta Rohatgi , AIR 2003 SC 3350 overruling; United India Insurance Co. Ltd. v. Bhushan
Sachdeva, AIR 2002 SC 662 : (2002) 2 SCC 265 [LNIND 2002 SC 46] : (2002) 95 DLT 451. Reservation
clause in policy for advance subrogation does not also enable the insurer to file an appeal unless conditions in
section 170 are complied with: New India Insurance Co. v. Smt. Tara Sundari , AIR 2004 Cal 1 [LNIND 2003
CAL 290]. Non recording of reasons for grant of permission is not fatal if the collusion or other reasons are
obvious: United India Insurance Co. Ltd. v. Jyotsanaben Sudhir Bhai Patel , AIR 2003 SC 3127 : (2003) 7 SCC
212 [LNIND 2003 SC 659]. In an appeal by insured the insurer cannot question quantum of compensation
without taking leave of court under section 170 : Samundra Devi v. Narendra Kumar, (2008) 9 SCC 100
[LNIND 2008 SC 1551] : AIR 2008 SC 3205.
Award of interest where any claim is allowed
Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that
in addition to the amount of compensation simple interest shall also be paid at such rate and from such date
not earlier than the date of making the claim as it may specify in this behalf.
COMMENT.—
This section corresponds to section 110 -CC of the old Act.
Regarding rate of interest see Abati Bezbaruah v. Dy Director General Geological Survey of India, (2003) 3
SCC 148 [LNIND 2003 SC 195] : AIR 2003 SC 1817 (no fixed rate 9% interest allowed).
Award of compensatory costs in certain cases
(1) Any Claims Tribunal adjudicating upon any claim for compensation under this Act, may in any case where it
is satisfied for reasons to be recorded by it in writing that—
(a) the policy of insurance is void on the ground that it was obtained by representation of fact which was
false in any material particular, or
(b) any party or insurer has put forward a false or vexatious claim or defence,
such Tribunal may make an order for the payment, by the party who is guilty of mis-representation or by whom
such claim or defence has been put forward of special costs by way of compensation to the insurer or, as the
case may be, to the party against whom such claim or defence has been put forward.
(2) No Claims Tribunal shall pass an order for special costs under subsection (1) for any amount exceeding one
thousand rupees.
Page 6 of 21
(3) No person or insurer against whom an order has been made under this section shall, by reason thereof be
exempted from any criminal liability in respect of such mis-representation, claim or defence as is referred to
in subsection (1).
(4) Any amount awarded by way of compensation under this section in respect of any mis-representation, claim
or defence, shall be taken into account in any subsequent suit for damages for compensation in respect of
such misrepresentation, claim or defence.
COMMENT.—
This section corresponds to section 110 -CCC of the old Act. The tribunals in disbursement of compensation
must follow the guidelines laid down in Muljibhai v. United India Insurance Co. Ltd ., (1982) 23 (1) Guj LR 756.
This is the directive of the Supreme Court in Lilaben Udesing Gohel v. The Oriental Insurance Co ., AIR 1996
SC 1605 : (1996) 3 SCC 608 [LNIND 1996 SC 600], which has been repeated in Nagappa v. Gurudayal Singh,
(2003) 2 SCC 274 [LNIND 2002 SC 768], pp. 286, 287 : AIR 2003 SC 674.
Appeals
(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of Claims Tribunal may,
within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall
be entertained by the High Court unless he has deposited with it twenty five thousand rupees or fifty
per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of
ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the
appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than
ten thousand rupees.
COMMENT.—
This section generally corresponds to section 110 -D of the old Act.
Owner of the vehicle/tort feasors against whom an award is passed are aggrieved persons and can file an
appeal: V. Subbulakshmi v. Lakshmi, AIR 2008 SC 1256 : (2008) 4 SCC 224 [LNIND 2008 SC 248].
The first proviso is new : The Patna and Allahabad High Courts hold that this proviso will apply to all appeals
filed after 1st July, 1989 even if the award was made in a claim under the old Act; Ramesh Singh v. Chinta
Devi , AIR 1994 Pat 44 ; Oriental Insurance Co. Ltd. v. Dharam Singh , AIR 1990 All 30 [LNIND 1989 ALL
253]. The M.P. High Court has however dissented from this view and has held that appeals against awards
passed in claims filed before 1st July, 1989 will not be governed by the proviso; Jaswant Rao v. Kamlabai , AIR
1990 MP 354 [LNIND 1990 MP 28]. Orissa High Court agrees with this view; New India Ass. Co. Ltd. v.
Sulochana , AIR 1995 Orissa 153 . According to the Punjab and Haryana High Court what is material is the
date of the accident and the proviso will not apply to claims arising out of accidents taking place before 1st July
1989, Laxmi Narain alias Kaka v. Balbir Kaur , AIR 1992 P & H 283. According to the Supreme Court the
condition of deposit is not applicable to appeals arising from claim applications filed under the old Act for the
right to prefer an appeal without any such condition was a right vesting at the time of institution of the claim:
Ramesh Singh v. Cinta Devi , AIR 1996 SC 1560. The condition of deposit is mandatory and the court cannot
reduce the amount and no stay application can be considered without the statutory deposit; Rajasthan State
Page 7 of 21
Road Transport Corporation v. Smt. Santosh , AIR 1995 Raj 2. An order under section 140 is not an award
appealable under section 173 ; Amita Bagchi v. Tejwinder Singh , AIR 1995 P & H 75.
Recovery of money from insurer as arrears of land revenue
Recovery of money from insurer as arrears of land revenue
Where any amount is due from any person under an award, the Claims Tribunal may, on an application made
to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector
shall proceed to recover the same in the same manner as an arrears of land revenue.
COMMENT.—
This section corresponds to section 110 -E of the old Act.
Bar on jurisdiction of Civil Courts
Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain
any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for
that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in
respect of the claim for compensation shall be granted by the Civil Court.
COMMENT.—
This section corresponds to section 110 -F of the old Act.
Power of State Government to make rules
A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to
174, and in particular, such rules may provide for all or any of the following matters, namely:—
(a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to
be paid in respect of such applications;
(b) the procedure to be followed by the Claims Tribunal in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if any) on payment of which an appeal may be preferred
against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be, prescribed.
COMMENT.—

[Schedules]
[THE SECOND SCHEDULE
(section 163A)
Page 8 of 21
)SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENTS/INJURY CASES CLAIMS
1 Fatal accidents
Page 9 of 21
An Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs. Rs.
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Page 10 of 21
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Page 11 of 21
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Page 12 of 21
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Page 13 of 21
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Page 14 of 21
nua 3,0 4,2 5,4 6,6 7,8 9,0 10, 11, 12, 18, 24, 36, 40,
l 00 00 00 00 00 00 200 400 000 000 000 000 000
Inc
om
e
AG MU RU
E LTI PE
OF PLI ES
VIC ER IN
TIM TH
OU
SA
ND
S
co
mp
ens
atio
n in
cas
e of
dea
th
55
yrs.
Abo ...... 50 50 50 52. 62. 72 81. 91. 96 144 192 286 320
ve 8 8 4 6 2
55
yrs.
but
not
exd
g.
60
yrs.
Abo ...... 50 50 50 50 50 54 61. 68. 72 108 144 216 240

ve 5 2 4
60
yrs.
Page 15 of 21
nua 3,0 4,2 5,4 6,6 7,8 9,0 10, 11, 12, 18, 24, 36, 40,
l 00 00 00 00 00 00 200 400 000 000 000 000 000
Inc
om
e
AG MU RU
E LTI PE
OF PLI ES
VIC ER IN
TIM TH
OU
SA
ND
S
co
mp
ens
atio
n in
cas
e of
dea
th
but
not
exd
g.
65
yrs.
Abo ...... 50 50 50 50 50 50 51 57 60 90 120 180 200

ve 5
65
yrs.
NO
TE :
The
am
oun
t of
Page 16 of 21
nua 3,0 4,2 5,4 6,6 7,8 9,0 10, 11, 12, 18, 24, 36, 40,
l 00 00 00 00 00 00 200 400 000 000 000 000 000
Inc
om
e
AG MU RU
E LTI PE
OF PLI ES
VIC ER IN
TIM TH
OU
SA
ND
S
co
mp
ens
atio
n in
cas
e of
dea
th
co
mp
ens
atio
n
so
arri
ved
at
in
the
cas
e of
fata
l
acci
den
t
Page 17 of 21
nua 3,0 4,2 5,4 6,6 7,8 9,0 10, 11, 12, 18, 24, 36, 40,
l 00 00 00 00 00 00 200 400 000 000 000 000 000
Inc
om
e
AG MU RU
E LTI PE
OF PLI ES
VIC ER IN
TIM TH
OU
SA
ND
S
co
mp
ens
atio
n in
cas
e of
dea
th
clai
ms
shal
l be
red
uce
d
by
1/3r
d in
con
side
rati
on
of
the
exp
ens
Page 18 of 21
nua 3,0 4,2 5,4 6,6 7,8 9,0 10, 11, 12, 18, 24, 36, 40,
l 00 00 00 00 00 00 200 400 000 000 000 000 000
Inc
om
e
AG MU RU
E LTI PE
OF PLI ES
VIC ER IN
TIM TH
OU
SA
ND
S
co
mp
ens
atio
n in
cas
e of
dea
th
es
whi
ch
the
victi
m
wou
ld
hav
e
incu
rred
tow
ard
s
mai
ntai
nin
Page 19 of 21
nua 3,0 4,2 5,4 6,6 7,8 9,0 10, 11, 12, 18, 24, 36, 40,
l 00 00 00 00 00 00 200 400 000 000 000 000 000
Inc
om
e
AG MU RU
E LTI PE
OF PLI ES
VIC ER IN
TIM TH
OU
SA
ND
S
co
mp
ens
atio
n in
cas
e of
dea
th
g
him
self
had
he
bee
n
aliv
e.
Page 20 of 21
2 Amount of compensation shall not be less than Rs. 50,000.

3 General Damage (in case of death):
The following General Damages shall be payable in addition to compensation outlined above:
—Rs. 2,000/-
(i) Funeral expenses
—Rs. 5,000/-
(ii) Loss of Consortium, if beneficiary is the spouse
—Rs. 2,500/-
(iii) Loss of Estate
—Rs.15,000/-
(iv) Medical Expenses—actual expenses incurred before
death supported by bills/vouchers but not
exceeding.
4 General Damages in case of Injuries and Disabilities:
(i) Pain and Sufferings

—Rs. 5,000/-
(a) Grievous injuries
—Rs. 1,000/-
(b) Non-grievous injuries
—Rs.15,000/-
(ii) Medical Expenses—actual expenses incurred
supported by bills/vouchers but not exceeding as
one time payment
5 Disability in non-fatal accidents:

The following compensation shall be payable in case of disability to the victim arising on of non-fatal
accidents:
Loss of income if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the
following:—
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual
loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been
payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and
percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act,
1923.
6 National income for compensation to those who had no income prior to accident:—
Fatal and disability in non-fatal accidents:—
—Rs. 15,000 p.a.
(a) Non-earning persons
— Rs. 1/3rd of income of the earing/surviving spouse
(b) Spouse
In case of other injuries only “General Damage” as applicable.]
1
Added by Act 54 of 1994, sec. 52 (w.e.f. 14-11-1994).
2
Subs. by Act 54 of 1994, sec. 53 (w.e.f. 14-11-1994).
3
Page 21 of 21
Sub-section (3) omitted by Act 54 of 1994, s. 53 (w.e.f. 14-11-1994).

4
Sub-section (4) substituted by Act 54 of 1994, s. 53 (w.e.f. 14-11-1994).
End of Document
> APPENDIX III
THE CONSUMER PROTECTION ACT, 1986
1. INTRODUCTION
On 24 th December 1986 the Government of India, to safeguard the interest of the consumer, enacted a
comprehensive legislation – the Consumer Protection Act, 1986 (hereinafter referred to as, “the Act”). It was later
modified and the amendments came into effect on March 15, 2003.
The preamble to this Act reads as follows:
An Act to provide for better protection of the interests of the consumers and for that purpose to make provisions for
the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and for
matter connected therewith.
The preamble to this Act leaves no ambiguity regarding the intention of the framers of this Act. It is a benevolent
social legislation that enshrines the rights and remedies of the consumers. The dictum, caveat emptor (buyer
beware) is a thing of the past and caveat venditor (let the seller beware) compels the seller to take responsibility for
the product and discourages sellers from selling products of unreasonable quality. The consumer can now seek
redressal against manufacturers, traders of goods and providers of various types of services.
A separate Department of Consumer Affairs was also created in the Central and State government to exclusively
focus on ensuring protection of the right of consumers, as enshrined in the Act.
Prior to this enactment there was no exclusive legislation for actually safeguarding the interests of the consumers.
The level of awareness of the consumer was abysmal. The main law was the law of torts, treated as a general
custodian of social wrongs. Other laws under which the consumer could seek redress were the Indian Penal Code,
Agricultural Production, Grading and Marketing Act, 1937, Drugs and Cosmetics Act, 1940 and Sale of Goods Act,
1930. The Consumer Protection Act came as a much needed relief to the beleaguered consumer. The remedy
under the Consumer Protection Act is a more easily accessible alternative in addition to that already available to the
aggrieved consumers by way of civil suit under the other Acts.
The Consumer Protection Act, 1986 applies to all goods and services. However, no complaint can be filed for
alleged deficiency in any service that is rendered free of charge or under a contract of personal service. It also
excludes goods for resale and services and goods obtained for commercial purpose. The underlying principle is that
the services should have been availed for earning one's livelihood by way of self-employment. No trader or person
rendering service can seek relief under this Act. The provisions of the Act are compensatory in nature. It covers
public, private, joint and cooperative sectors. This Act has been regarded as the most progressive, comprehensive
and unique piece of legislation, enacted primarily to provide for the better protection of the consumer.
The main objective for setting up of the dispute redressal machinery was to secure and enable inexpensive and
speedy justice to the aggrieved consumers. A threetier-system of redressal was evolved. A written complaint can be
filed before the District Consumer forum for a pecuniary value of upto rupees twenty lakh in the State Commission
for the value upto rupees one crore and in the National Commission for the value above rupees one crore in respect
of defects in goods, deficiency in service or unfair trade practice. The forums are empowered to act like First class
Page 2 of 11
Judicial Magistrates for the purposes of trial of offences. Failure to comply with the orders of the forum or
commission, as the case may be, on the part of a trader or a person against whom a complaint is made, would
entail the penalties of imprisonment of fine or both.
A complaint, hand written or types, can be filed by a consumer, a registered consumer organization, Central or
State Government and one or more consumers, where there are numerous consumers having the same interest.
No complaint can be filed in a consumer court if two years have elapsed after the cause of action. The Act being a
beneficiary piece of legislation, the complaint/appeal/petition submitted under the Act does not require any court
fees but only a nominal fee. A person can also present his own case without taking any help from a lawyer.
The Act has enabled ordinary consumers to secure less expensive and often speedy redressal of their grievances.
Consumer For a proceedings are summary in nature and the endeavor is to grant relief to the aggrieved consumer
in the quickest possible way, keeping in mind the provisions of the Act, which lay down a time schedule for disposal
of cases. The proceedings before the Consumer Fora are not governed strictly by the Evidence Act or the Civil
Procedure Code. The Act being a social, benefit-oriented legislation, its provisions have to be construed in favour of
the consumer to achieve the objective of the enactment. The provisions are to be construed liberally and equitable
consideration is the predominant factor in deciding matters.
This enactment is comparatively new and its effectiveness is yet to be critically assessed. However, it can easily be
said to have blazed a new trail in guarding the interest of the consumer. The Supreme Court said “.The importance
of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market
economy. It attempts to remove the helplessness of a consumer, which he faces against powerful business,
described as ‘a network of rackets’ or a society in which ‘producers have secured power’ to ‘rob the rest’ and the
might of public bodies which are degenerating into store house of inaction where papers do not move from one
desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man
helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society,
instead of bothering, complaining and fighting for it, is accepting it as part of life. The enactment in these
unbelievable yet harsh realities appears to be a silver lining which may in course of time succeed in checking the
rot” [Lucknow Development Authority v. M.K. Gupta, 111 (1993) CPJ 7 [LNIND 1993 NCDRC 119] (SC)].
2. CONSTRUCTION OF THE ACT
The Consumer Protection Act, 1986 is a social benefit oriented legislation and the provisions of the Act have to be
construed as broady as possible1 in favour of the the consumer to achieve the purpose of the enactment 2 but
without doing violence to its language 3 .
The definition of service in section 2 (o) of the Consumer Protection Act, 1986 did not expressly include ‘housing
construction’ before 1993. Yet the Supreme Court held that, having regard to the object of the Act, the authorities
constituted under the Act could entertain a complaint by a consumer for any defect or deficiency in relation to
construction activity against a private builder or a statutory authority like the Lucknow Development Authority.4
Facility of ‘housing construction’, though then not expressly included, was held to be ‘service of any description
which is made available to potential users’ within the definition as it then existed. The amendment expressly
including ‘housing construction’ was held to have been made by way of abundant caution. Similarly the definition of
consumer in section 2(1) (d)(i) of the same Act, which excludes buyer of goods for any commercial purpose, was
held not to exclude a buyer who purchases goods for self-employment even before an explanation clarifying this
meaning was added in this definition. 5 And interpreting section 2(1) (d)(ii) of the same Act, it has been held that
parents who hire the services of a hospital and their child for whom the services are hired are both consumers and
can independently claim damages. 6 Although service rendered by governmental hospitals/nursing homes and
private hospitals/nursing homes who render free service without any charge to every person does not fall within the
definition of ‘service’, but if the medical service is rendered as a condition of service to a person it would not be
regarded as free service and will fall within the definition of ‘service’ and the consumer fora will have jurisdiction to
decide these claims. 7 The fora under the C. P. Act will have jurisdiction to entertain claims regarding deficiency in
service unless their jurisdiction is expressly barred despite the fact that other courts or fora have jurisdiction to
entertain the claims. 8 Liberal view was also taken in holding that, though the fora under the Act are judicial
Page 3 of 11
authorities, they are not hampered by Section 34 of the Arbitration Act, 1940 and are not obliged to stay
proceedings before them for the Act provides a cheap and speedy remedy to the consumer, in addition to the
normal remedy under section 9 of the Code of Civil Procedure, 1908 or the Arbitration Act, 1940 and its provisions
have to be widely construed.9 On the same principle bar of jurisdiction of civil courts in a Co-operative Societies Act
for deciding a dispute between members and the society has been held not to apply to forums under the Consumer
Protection Act, 1986.10
3. RECENT SUPREME COURT CASES
(1) New India Assurance Co. Ltd v. Prabhulal , 1 (2008) CPJ 1 (SC)
Driver holding licence for driving licence to drive light motor vehicle driving a transport vehicle in absence of
necessary endorsement Insurance Company is not liable for damage to the vehicle in an accident.
Case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., (1999) 6 SCC 620 [LNIND 1999 SC 772] : AIR
1999 SC 3181 distinguished as in that case there was no material to hold that the vehicle was being used as a
transport vehicle.
(2) Dharmendra Goel v. Oriental Insurance Co. Ltd ., (2008) 8 SCC 279 [LNIND 2008 SC 1534] : (2008) 8
JT 464
Insurance claim for a comprehensively insured vehicle. Vehicle Tata Sumo comprehensively insured originally for
Rs. 4,30,000/- which was the purchase price. Renewal done from time to time on the value assessed by Company's
surveyor. Last renewal on 13.2.2002 on the value assessed by the Company as Rs. 3,54,000/-. The vehicle met
with an accident on 10-9-2002 resulting in total loss. Surveyor of the Company assessed the compensation at Rs.
1,80,000/-. The Supreme Court held that value of the vehicle could not be only Rs. 80,000/- when at the time of its
renewal just seven months before its value was assessed at Rs. 3,54,000/-. The Court allowed only Rs. 10,000/- as
depreciation for the seven months and allowed the claim for Rs. 3,44,000/- against the Insurance Company.
(3) Tamil Nadu Housing Board v. Sea Shore Apartments Owners Welfare Association, (2008) 1 CPJ 45
(SC).
Demand of enhanced price of flats sold by Housing Board allegedly because of increase of plinth area, ground area
and payment of enhanced compensation to land owners. Controversy about fixation of price in the light of
contentions raised ought to have been decided by the State Commission and National Commission. Case remitted
to the State Commission.
(4) State Bank of India v. B.S. Agriculture Industries (I), (2009) 5 SCC 121 [LNIND 2009 SC 618].
The period of limitation of two years from the date of cause of action enacted in section 24A of the Act is mandatory
in nature and the fora under the Act cannot entertain a complaint which is barred by limitation unless sufficient
cause is shown by the complainant for the delay and reasons are recorded for condoning the delay. Haryana Urban
Development Authority v. B.K. Sood, (2006) 1 SCC 164 [LNIND 2005 SC 855] followed: (2005) 9 JT 503.
(5) Regional Provident Fund Commission v. Bhavani , 11 (2008) CPJ 9 (SC)
Regional Provident Fund Commissioner who is the person responsible for the working of the Employees’ Pension
Scheme 1995 must be held to be a service giver and the employee a consumer under the Consumer Protection
Act. This case follows Regional Provident Fund Commissioner v. Shiv Kumar Joshi,(2000) 1 SCC 98 [LNIND 1999
SC 1155] : AIR 2000 SC 331 where it was held that facilities provided by Provident Fund Scheme are ‘services’ and
member employee is a consumer.
(6) New India Assurance Co. Ltd. v. Hira Lal Ramesh Chand , 111 (2008) CPJ (SC)
Page 4 of 11
Case of Marine Insurance Goods to be delivered only to holder/endorsee of Bill of Lading Buyer failing to clear the
documents. Goods lost or damaged during transit not proved. Failure of buyer to make payment and take delivery.
Insurance Company not liable to the sellers.
(7) P.C. Chacko v. Chairman Life Insurance Corporation of India , 111 (2008) CPJ 78 (SC)
Insured suppressed material fact in proposal form. Underwent Adenoma Thyroid operation four years prior to date
of proposal of policy which had direct nexus with the health of the insured suppressed in proposal form. Insured
died within 6 months from the date of taking insurance policy. Policy repudiated by the Corporation. Contract of
Insurance was null and void. Claimants not entitled to any relief against the Corporation.
(8) National Insurance Co. Ltd. v. Nitin Khandelwal , IV (2008) CPJ 1 (SC)
Vehicle comprehensively insured for personal use. Vehicle stolen when used as a taxi. It was held that the breach
of condition by the insured had no nexus with theft of the vehicle and the insurer could not repudiate the policy.
Order of consumer fora upheld.
(9) Philips Medical Systems (Cleveland) Inc. v. Indian MRI Diagnostic and Research Limited, (2008) 10
SCC 227 [LNIND 2008 SC 1946] : AIR 2009 SC 1052
Construction of definition of unfair trade practice in section 36A in Monopolies and Restrictive Trade Practices Act,
1969 which is same as in S2 (r) of the Consumer Protection Act. According to KATJU J. the definition though
inclusive is to be construed restrictively having regard to the object of protecting consumers against defective goods
or goods sold which do not have features or qualities which they were represented to have and the definition has no
application when goods are not sold at all. But according to Kabir J. this interpretation is too rigid and situations may
arise, which may fall under the wider concept of unfair trade practice although goods are not sold at all. There may
be, situations where a promise to supply particular goods, which the supplier knew he was not in any position to
supply with a motive of promoting some other model could occur. In such a case the consumer may be forced to
obtain the same material from some other party and suffer losses in the process. Such an act on the part of the
supplier could also amount to unfair trade practice and section 36A cannot in absolute terms be said not to apply to
a situation where goods may not have been sold at all. As in the fact situation in that particular case KABIR J.
agreed with KATJU J. there was no reference to a larger bench for resolving the difference in construction of the
definition of unfair trade practice.
(10) KLM Royal Dutch Airlines v. Director General of Investigation, (2009) 1 SCC 230 [LNIND 2008 SC
1987] : AIR 2009 SC 938
Ingredients of an unfair trade practice under Section 36A of the MR TP Act. Appeal under section 55 of the Act
against order of MRTP Commission. Nondelivery in time of part of the consignment booked through an airline which
may amount to deficiency in service but by itself does not amount to unfair trade practice.
(11) Prem Nath Motors Ltd. v. Anurag Mittal , IV (2008) CPJ 37 (SC)
Vehicle booked with agent acting for a disclosed principal and booking amount paid to him. Vehicle not delivered.
The claim for refund cannot be allowed against agent in view of section 230 of the Contract Act unless there be
contract to the contrary. Order of Monopolies and Restrictive Trade Practices Commission set aside. Similar view
had been taken in Marine Contained Services South Pvt. Ltd. v. Go Go Garments, AIR 1999 SC 80 : (1998) 3 SCC
247 [LNIND 1998 SC 107].
(12) Krishna Food & Banking Industry (P) Ltd. v. New India Assurance Co. , IV CPJ 39
Policy covering the risk of fire and terrorism assigned to a Bank which figured as respondent. Claim of insured
allowed. Bank can directly recover the amount from the Insurance Company and need not file a suit. Assignment of
policy under Section 38 of the Insurance Act amounts to transfer of actionable claim under sections 13 and 135 of
the T. P. Act.
Page 5 of 11
(13) Faqirchand Gulati v. Uppal Agencies Private Ltd ., (2008) 10 SCC 345 [LNIND 2008 SC 1369] : (2008)
7 JT 552
(A) A complainant under the Consumer Protection Act will lie:
(1) Where the owner or holder of a land who has entrusted the construction of a house to a
contractor has complaint of deficiency of service with reference to the construction.
(2) Where the purchaser or intending purchaser of an apartment/ flat/house has a complaint
against the builder/developer with reference to construction or delivery or amenities.
(B) It is wrong to say that whenever there is an agreement for development of a property between the
property owner and builder under which the constructed area is to be divided, it would amount to a joint
venture agreement and the builder is not service provider. A joint venture agreement is one where the
agreement discloses an intent that both parties shall exercise joint control over the
construction/development and be accountable to each other for their respective acts with reference to
the project. There is no joint venture if there are no provisions for shared control of interest or
enterprise and shared liability of losses. In a real joint venture agreement the builder is not a service
provider to the owner of the land. But in cases of development agreement or collaboration agreements
where the land holder has no say or control in the construction nor he has any say to whom and at
what cost the builders share of apartments are to be dealt with and his only right is to demand delivery
of his share of constructed area in accordance with the specifications, the builder will be a service
provider to the land holder who would be a consumer in respect of his share of the constructed area
and he can lodge his claim for deficiency in service under the Consumer Protection Act. The builder in
such cases can be directed to furnish the completion certificate and assessment (C & D) forms.
Followed in Surjit Kumar Bannerjee v. Rameshwaram, (2008) 10 SCC 366. In an agreement for
construction of a residential building and for delivery of a agreed percentage of the constructed area to
the land owners, the builders are service providers and the land owner a consumer.
(14) New India Assurance Company Ltd. v. Hiral Rameshchand, (2008) 10 SCC 626 [LNIND 2008 SC
1301] : AIR 2008 SC 2620
Marine Insurance defined in section 3 of the Marine Insurance Act, 1963 is an agreement whereby the insurer
agreed against marine losses that is to say the losses incidental to marine adventure which term is defined in
section 2 (d). A contract of marine insurance may by express terms or by usage of trade be extended to protect the
assured against losses on inland waters or on any land risk which may be incidental to any sea voyage. In an
insurance cover extending ‘warehouse to warehouse’ the consignments are covered by insurance not only during
the sea journey but beyond as stated in the policy. The policy would cover the loss not only while goods are
navigating the sea but also any loss or damage during transit from the time it leaves the consignor's warehouse till it
reaches the consignee's warehouse. But the cover against risks will cease on the expiry of 60 days after discharge
of the consignment from the vessel at the final port of discharge, if the goods do not reach the consignee's
warehouse or place of storage for any reason within the said 60 days. Where there is no effort on the part of the
consignee to take delivery from the shipping line/customs warehouse the risk cover would terminate on expiry of 60
days after completion of discharge over side of the insured shipment from the over side vessel at the final port of
discharge. The complainants who are consignors and the policy holders have to place and make out a case of loss
in respect of each and every consignment, either during transit or within 60 days of the consignment being
discharged at the port of destination. They cannot succeed by merely showing that the documents of title were not
retired by the buyer. The claims were accordingly dismissed by allowing the appeals of the Insurance Corporation
against the order of the National Consumer Commission which had allowed the claims.
(15) Punj Lloyd Ltd v. Corporate Risks Private Ltd ., (2009) 2 SCC 301 : (2008) 13 JT 306.
Complaint cannot be dismissed in limine by the National Commission without even eliciting the defence by issuing
notice to the respondent on the assumption that it involves complicated question of law and fact. The Court relied
Page 6 of 11
upon the decision in CCI Chambers Coop. Hsg. Society Ltd. v. Development Credit Bank Ltd. (2003) 7 SCC 233
[LNIND 2003 SC 725] : AIR 2004 SC 184 which holds that the decisive test is not the complicated nature of
question of fact and law arising for decision but whether the questions are capable of being decided by summary
enquiry provided in the Act. The Commission must be slow in rejecting complaints and driving the complainant to
the tardy remedy of civil court.
(16) Buddhist Mission Dental College and Hospital v. Bhupesh Khurana, (2009) 4 SCC 473 [LNIND 2009
SC 347] : (2009) 2 JT 379
Dental College falsely advertising that it was affiliated to Magadh University and that it was recognised by Dental
Council of India. On the faith of this misleading and false advertisements students applied were admitted after
charging various charges and wasted two years in the college. It was held that the education was ‘service’ and the
conduct of the college amounted to unfair trade practice and deficiency in service. The National Consumer
Commission directed refund of all charges collected by the College from each student with 12% interest +
Rs.20,000/- as compensation to each and Rs. 10,000/- as costs. In appeal to the Supreme Court cross objection
was filed by the students. The Supreme Court upheld the award of the Commission and further directed payment of
additional compensation of one lakh to each student and one lakh costs of litigation to each student.
(17) Secretary Bhubaneshwar Development Authority v. Susanta Kumar Misra, (2009) 4 SCC 684 [LNIND
2009 SC 213] : (2009) 5 JT 189
Refusal of Development Authority to execute sale deed until payment of dues i.e. interest on delayed/defaulted
instalments in terms of lease-cum-sale agreement with which the respondent did not constitute deficiency in service
attracting the jurisdiction of consumer fora.
(18) UT Chandigarh Administration v. Amarjeet Singh, (2009) 4 SCC 660 [LNIND 2009 SC 588] : AIR 2009
SC 1607
Default of payment of instalment by successful bidder of plots making him liable to pay penal interest as per terms
of public auction. Demand of penal interest does not amount to deficiency in service.
(19) Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, (2009) 8 SCC 507 [LNIND 2009
SC 1715] : (2009) 12 JT 63
Insurance Company can reject the report of the surveyor and appoint another surveyor but rejection of the first
surveyor's report must be on cogent and satisfactory reasons. Delay of three years in settling claim when first
surveyor's report was rejected on satisfactory reasons and another surveyor was appointed is not deficiency in
service under the Consumer Protection Act.
(20) New India Assurance Company Limited v. Zuari Industries Limited, (2009) 9 SCC 70 [LNIND 2009 SC
1756] : (2009) 4 CTC 779 [LNIND 2009 SC 1756]
Fire accident due to electrical short circuit causing damage to boiler and other appliances. The word ‘fire’ in the
relevant clause in policy of insurance was not qualified by the word ‘sustained’. Repudiation of claim on the ground
that no sustained fire caused the damage not legal. Duration of fire was not relevant if the damage is caused by fire.
Claim is maintainable even if the fire is for a fraction of a second.
(21) Madan Kumar Singh v. District Magistrate Sultanpur, (2009) 9 SCC 79 [LNIND 2009 SC 1642] : (2009)
4 CPJ 3 : (2009) 5 CTC 274 [LNIND 2009 SC 1642]
A person purchasing a truck for consideration which was paid by him for earning his livelihood is a consumer even if
he employs a driver for running the truck. The buyers of goods for ‘self consumption’ in the economic activities in
which they are engaged would be consumers and such a purpose cannot be called ‘commercial purpose’.
Page 7 of 11
(22) Oriental Insurance Company Ltd. v. Osma Shipping Company, (2009) 9 SCC 159 [LNIND 2009 SC
1726] : (2009) 4 CPJ 1
Marine Insurance . The value of the vessel in the policy as agreed between insurer and the insured on the basis of
report of surveyor of the insurer was Rs. 21,50,000/-. The vessel sinking with entire cargo. Payment was being
avoided on one pretext or the other and the insurer agreed to settle the claim for Rs. 15,00,000/-. On complaint the
National Commission allowing the claim of the insured for Rs. 21,50,000/- with interest at 12% p.m. The Supreme
Court dismissed the appeal of the Insurer with costs and deprecated the practice of avoiding payments even in
genuine and bona fide claims and approaching the Supreme Court in every case.
(23) Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483 [LNIND 2009 SC 1773] :
AIR 2010 SC 93
A Statutory Board conducting examinations is not a service provider and does not offer services to candidates while
conducting an examination.
(24) General Manager, Telecom v. M. Krishnan, (2009) 8 SCC 481 [LNINDORD 2009 SC 552] : AIR 2010
SC 90
Where a special remedy is provided in a statute such as section 7 -B of the Telegraph Act, the consumer forum will
have no jurisdiction to entertain a complaint, case of disconnection of telephone. But this case does not notice
earlier cases decided under section 6 of the Act which provide that the fora will have jurisdiction unless their
jurisdiction is expressly barred (see cases in f.n. 8, 9 and 10 under the heading ‘Construction of the Act’).
(25) Sonic Surgical v. National Insurance Co. Ltd ., (2010) 1 SCC 135 [LNIND 2009 SC 1906]
Interpretation of section 17(2). A complaint cannot be filed at any place where the opposite party has a branch
office but only at the place of such branch office where the cause of action has arisen.
4. BARE TEXT OF THE CONSUMER PROTECTION ACT, 1986
ARRANGEMENT OF SECTIONS
Section
CHAPTER–I
PRELIMINARY
1 Short title, extent, commencement and application
2 Definitions
3 Act not in derogation of any other law
CHAPTER–II
CONSUMER PROTECTION COUNCILS
1 The Central Consumer Protection Council
2 Procedure for meetings of the Central Council
3 Objects of the Central Council
4 The State Consumer Protection Councils

Page 8 of 11
5 Objects of the State Council
6 The District Consumer Protection Council
7 Objects of the District Council
CHAPTER–III
CONSUMER DISPUTES REDRESSAL AGENCIES
1 Establishment of Consumer Disputes Redressal Agencies
2 Composition of the District Forum
3 Jurisdiction of the District Forum
4 Manner in which complaint shall be made
5 Procedure on admission of complaint
6 Finding of the District Forum
7 Appeal
8 Composition of the State Commission
9 Jurisdiction of the State Commission
10 Transfer of cases
11 Circuit Benches
12 Procedure applicable to State Commissions
13 [Repealed ]
14 Appeals
15 Hearing of Appeal
16 Composition of the National Commission
17 Jurisdiction of the National Commission
18 Power of and procedure applicable to the National Commission
19 Power to set aside ex parte orders
20 Transfer of cases
21 Circuit Benches
22 Vacancy in the Office of the President
23 Appeal
24 Finality of orders
25 Limitation period
Page 9 of 11
26 Administrative Control
27 Enforcement of orders of the District Forum, the State Commission or the National Commission
28 Dismissal of frivolous or vexatious complaints
29 Penalties
30 Appeal against order passed under section 27
CHAPTER–IV
MISCELLANEOUS
1 Protection of action taken in good faith
2 Service of notice, etc.
3 Power to remove difficulties
4 Vacancies or defects in appointment not to invalidate orders
5 Power to make rules
6 Power of the National Commission to make regulations
7 Rules and regulations to be laid before each House of Parliament

1
State of Karnataka v. Vishwabharathi Housing Building Co-op. Society, (2003) 2 SCC 412 [LNIND 2003 SC
60], p. 429 : AIR 2003 SC 1043; H.N. Shankara Shastry v. Asst Director of Agriculture , AIR 2004 SC 3474,
p. 3477 : (2004) 6 SCC 230 [LNIND 2004 SC 633] ; Kishore Lai v. Chairman, Employees’ State Insurance
Corpn., (2007) 4 SCC 579 [LNIND 2007 SC 606] (para 17) : AIR 2007 SC 1819.
2
Lucknow Development Authority v. M.K. Gupta , AIR 1994 SC 787, p. 791 : (1994) 1 SCC 243 [LNIND
1993 SC 946] ; Indian Medical Associations v. V.P. Shantha , (1995) 6 Scale 273 : AIR 1996 SC 550 :
(1995) 6 SCC 651 [LNIND 1995 SC 1110] (Construction of ‘service’ in Section 2(1) of the Consumer
Protection Act, 1986; liberally construed to include service rendered by persons in medical
profession);Bimal Chandra v. Bank of India , AIR 2000 SC 2181 : (2000) 6 SCC 179 [LNIND 2000 SC 838]
(overdraft facility to customer is service); Regional Provident Fund Commissioner v. Shiv Kumar Joshi , AIR
2000 SC 331 : (2000) 1 SCC 98 [LNIND 1999 SC 1155] (Facilities provided by Provident Fund Scheme are
‘services’ and ‘member’ employee is a ‘consumer’); Punjab Electricity Board Ltd. v. Zora Singh, (2005) 6
SCC 776 [LNIND 2005 SC 609], p. 786 (Public utilities like a State Electricity Board renders service to the
community and has to supply electrical energy to the consumers within a reasonable time from the date of
demand notice for making deposit for connection and its failure to do so will be deficiency in service making
it liable for damages in addition to interest on the deposit made).
3
S P Goel v. Collector of Stamps , AIR 1996 SC 839 : (1996) 1 SCC 573 [LNIND 1995 SC 1274] (officers
performing quasi -judicial functions under statutory power do not render any service); New India Assurance
Co. Ltd. v. B.S. Sainani , AIR 1997 SC 2938 : (1997) 6 SCC 383 (Assignment of right to claim damages is
not assignment of right to service and assignee does not become a consumer); I.W. v. City of Perth , (1997)
71 Al JR 943 (Refusal to grant approval after deliberations in exercise of statutory discretionary power is
not refusing to provide service); Union Bank of Indian. Seppo Rally , (1999) 7 JT 437 [LNIND 1999 SC 862],
Page 10 of 11
pp. 442, 443 : (1999) 8 SCC 357 [LNIND 1999 SC 862] : (1999) 35 CLA 203 (negligence essential for
constituting deficiency in service); Ravneet Singh Bagga v. KLM Royal Dutch Airlines , (1999) 8 JT 640 :
(2000) 1 SCC 66 [LNIND 1999 SC 999] : (2000) CPR 72 (Action in good faith does not constitute deficiency
in service). But in claims against a common carrier principle of section 9 of the Carriers Act, 1865 has been
applied and the claimant has not to prove negligence for showing deficiency in service: Patel Roadways
Ltd. v. Birla Yamaha Limited , (2000) 3 JT 618 [LNIND 2000 SC 522] : (2000) 4 SCC 91 [LNIND 2000 SC
522] : AIR 2000 SC 1461; Economic Transport Organisation v. Dharvad Dist Kadi Gramodyog Sangh , JT
2000 (4) SC 327 [LNIND 2000 SC 566]: (2000) 5 SCC 78 [LNIND 2000 SC 566] : AIR 2000 SC 1635.
Though the jurisdiction of the fora under the Act is only in addition to jurisdiction of convential courts, the
fora should not decline to exercise jurisdiction and deny to the complainant the beneficial provisions of the
Act simply on the ground that the complainant raises complicated facts and law for decision: CCI Chambers
Coop. HSG Society Ltd v. Development Credit Bank Ltd., (2003) 7 SCC 233 [LNIND 2003 SC 725] : AIR
2004 SC 184 : (2003) 117 Comp Cas 118. But assignee of consignor is not a consumer and cannot
complain under the Act; his only remedy is to file a civil suit. Savani Road Lines v. Sunderan Textiles Ltd. ,
4
Lucknow Development Authority v. M.K. Gupta , AIR 1994 SC 787 : (1994) 1 SCC 243 [LNIND 1993 SC
946]. See further Om Prakash v. Assistant Engineer, Haryana Agro Industries Corporation Ltd. , (1994) 3
JT 623 : (1994) 3 SCC 504 [LNIND 1994 SC 413] : (1994) 81 Comp Cas 371 (Non-supply of tractor in
accordance with the list of booking causing loss to a person higher in the list as the price of tractor rose in
the interval; held amounted to deficiency in service within the definition of complaint in section 2 (l)(C)(iii)
although not within the definition of unfair trade practice in section 36A as it then stood before amendment
by Act 58 of 1991 and compensation allowed). But it has been held that a ‘share’ before its allotment is not’
goods’ and a prospective investor in shares is not a consumer under the Act; Morgan Stanley Mutual Fund
v. Kartick Das , (1994) 3 JT 654 : (1994) 4 SCC 225 [LNIND 1994 SC 546].
5
Laxmi Engineering Works v. P.S.G. Industrial Institute, 1995 (2) Scale 626 [LNIND 1995 SC 485] : AIR
1995 SC 1428 : (1995) 3 SCC 583 [LNIND 1995 SC 485]. See further Karnataka Power Transmission
Corporations v. Ashok Iron Works Pvt. Ltd., (2009) 3 SCC 240 [LNIND 2009 SC 270] para 34 : (2009) 2 JT
447 (The expression ‘but does not include a person who avails of such services for any commercial
purpose’ inserted in section 2 (l)(d)(ii) of the Act by Act 62 of 2002 is not retrospective and does not apply to
any period prior to its introduction. In this case delay in supply of electricity by Electricity Board, before the
amendment, to a consumer was held to be deficiency in service though the consumer availed of the supply
for commercial purpose).
6
Spring Meadows Hospitals v. Harjol Ahluwalia, (1998) 2 JT 620, p. 629 : AIR 1998 SC 1801 : (1998) 4 SCC
39 [LNIND 1998 SC 357].
7
Kislior Lal v. Chairman, Employees'State Insurance Corpn., (2007) 4 SCC 579 [LNIND 2007 SC 606] (para
8): AIR 2007 SC 1819 (claim for negligence in medical service rendered by ESI doctors); Laxman
Thamappa Kotgiri v. G.M. Central Railway, (2007) 4 SCC 596 : (2005) 1 Scale 600 (claim for negligence in
medical service rendered by Railway Hospital).
8
Kishor Lal v. Chairman, Employees'State Insurance Corpn., supra (para 17).
9
Page 11 of 11
Fair Air Engineers Pvt. Ltd. v. N. K. Modi, AIR 1997 SC 533, p. 538 : (1996) 6 SCC 385 [LNIND 1996 SC
1285].
10
Secretary Thirumurgan Co-operative Agricultural Credit Society v. M. Lalitha, (2004) 1 SCC 305 [LNIND
2003 SC 1076] : AIR 2004 SC 448.
End of Document
> APPENDIX III
THE CONSUMER PROTECTION ACT, 1986(68 of 1986)
[24th December, 1986 ]
An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment
of consumer councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith.
BE it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:—

CHAPTER I PRELIMINARY
S. 1. Short title, extent, commencement and application.—
(1) This Act may be called the Consumer Protection Act, 1986.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on the such date 11 as the Central Government may, by notification, appoint and
different dates may be appointed for different States and for different provisions of this Act.
(4) Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all
goods and services.
S. 2. Definitions.—
(1) In this Act, unless the context otherwise requires,—

12[(a)
“appropriate laboratory” means a laboratory or organisation—
(i) recognised by the Central Government;
(ii) recognised by a State Government, subject to such guidelines as may be prescribed by the Central
Government in this behalf; or
13[(aa)
“branch office” means—
(i) any establishment described as a branch by the opposite party; or
Page 2 of 31
(ii) any establishment carrying on either the same or substantially the same activity as that carried on
by the head office of the establishment;]
(b)
“complainant” means—
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under
any other law for the time being in force; or
(c)
“complaint” means any allegation in writing made by a complainant that—
16[(i) an unfair trade practice or a restrictive trade practice has been adopted by 17 [any trader or
service provider;]
(ii) 18 [the goods bought by him or agreed to be bought by him] suffer from one or more defects;
with a view to obtaining any relief provided by or under this Act;
(d)
“consumer” means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other
than the person who buys such goods for consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment, when such use is made with the approval of
such person, but does not include a person who obtains such goods for resale or for any
commercial purpose; or
(ii) 20 [hires or avails of] any services for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and includes any beneficiary
of such services other than the person who 21 [hires or avails of] the services for consideration
paid or promised, or partly paid and partly promised, or under any system of deferred payment,
when such services are availed of with the approval of the first mentioned person 22 [but does not
include a person who avails of such services for any commercial purpose ];
23 [Explanation .—For the purposes of this clause, “commercial purpose” does not include use
by a person of goods bought and used by him and services availed by him exclusively for the
purposes of earning his livelihood by means of self-employment;]
(e)
“consumer dispute” means a dispute where the person against whom a complaint has been
made, denies or disputes the allegations contained in the complaint;
(f)
“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or
standard which is required to be maintained by or under any law for the time being in force or 24
[under any contract, express or implied or] as is claimed by the trader in any manner whatsoever in
relation to any goods;
(g)
“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and
manner of performance which is required to be maintained by or under any law for the time being
in force or has been undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service;
(h)
Page 3 of 31
“District Forum” means a Consumer Disputes Redressal Forum established under clause (a ) of
section 9 ;
(i)
“goods” means goods as defined in the Sale of Goods Act, 1930;
25(j)
“manufacturer” means a person who—
(i) makes or manufactures any goods or parts thereof; or
(ii) does not make or manufacture any goods but assembles parts thereof made or manufactured by
others; or
26[(jj)
“member” includes the President and a member of the National Commission or a State
Commission or a District Forum, as the case may be;]
(k)
“National Commission” means the National Consumer Disputes Redressal Commission
established under clause (c ) of section 9 ;
(l)
“notification” means a notification published in the Official Gazette;
(m)
“person” includes—
(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(n)
“prescribed” means prescribed by rules made by the State Government, or as the case may be,
by the Central Government under this Act;
27[(nn)
‘regulation” means the regulations made by the National Commission under this Act;]
28[(nnn)
“restrictive trade practice’ means a trade practice which tends to bring about manipulation of
price or its conditions of delivery or to affect flow of supplies in the market relating to goods or
services in such a manner as to impose on the consumers unjustified costs or restrictions and shall
include—
(a) delay beyond the period agreed to by a trader in supply of such goods or in providing the services
which has led or is likely to lead to rise in the price;
(b) any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may
be, services as condition precedent to buying, hiring or availing of other goods or services;]
(o)
“service” means service of any description which is made available to potential 29 [users and
includes, but not limited to , the provision of ] facilities in connection with banking, financing
insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 30
[housing construction] entertainment, amusement or the purveying of news or other information,
but does not include the rendering of any service free of charge or under a contract of personal
service;
Page 4 of 31
31[(oo)
“spurious goods and services” mean such goods and services which are claimed to be genuine
but, they are actually not so;]
(p)
“State Commission” means a Consumer Disputes Redressal Commission established in a State
under clause (b ) of section 9 ;
(q)
“trader” in relation to any goods means a person who sells or distributes any goods for sale and
includes the manufacturer thereof, and where such goods are sold or distributed in package form,
includes the packer thereof;
32[(r)
“unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use
or supply of any goods or for the provision of any service, adopts any unfair method or unfair or
deceptive practice including any of the following practices, namely:—
(1) the practice of making any statement, whether orally or in writing or by visible representation
which,—
shall be deemed to be a statement made to the public by, and only by, the person who had caused the
statement to be so expressed, made or contained.
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply
at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain
price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the
market in which the business is carried on, the nature and size of business, and the nature of the
advertisement.
Explanation.— For the purpose of clause (2), “bargaining price” means—
(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or
otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a
bargain price having regard to the prices at which the product advertised or like products are ordinarily
sold;
(3) permits—
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating
impression that something is being given or offered free of charge when it is fully or partly covered by
the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or
indirectly, the sale, use or supply of any product or any business interest;
33[(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on
its closure the information about final results of the scheme.
Explanation.— For the purposes of this sub-clause, the participants of a scheme shall be deemed to
have been informed of the final results of the scheme where such results are within a reasonable time
published, prominently in the same newspapers in which the scheme was originally advertised;]
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers,
knowing or having reason to believe that the goods do not comply with the standards prescribed by
competent authority relating to performance, composition, contents, design, constructions, finishing or
packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;
Page 5 of 31
(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale
or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to
raise, the cost of those or other similar goods or services.]
34[(6) manufacture of spurious goods or offering such goods for sale or adopting deceptive practices in the
provision of services.]
(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this
Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in
such area.
S. 3. Act not in derogation of any other law.—
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the
time being in force.
CHAPTER II CONSUMER PROTECTION COUNCILS
S. 4. The Central Consumer Protection Council.—
(1) 35 [The Central Government shall ], by notification, establish with effect from such date as it may specify in
such notification, a Council to be known as the Central Consumer Protection Council (hereinafter referred
to as the Central Council).
(2) The Central Council shall consist of the following members, namely:—
(a) the Minister in charge of the 36 [consumer affairs] in the Central Government, who shall be its
Chairman, and
(b) such number of other official or non-official members representing such interests as may be prescribed.
S. 5. Procedure for meetings of the Central Council.—
(1) The Central Council shall meet as and when necessary, but 37 [at least one meeting] of the Council shall be
held every year.
(2) The Central Council shall meet at such time and place as the Chairman may think fit and shall observe such
procedure in regard to the transaction of its business as may be prescribed.
S. 6. Objects of the Central Council.—

Page 6 of 31
The objects of the Central Council shall be to promote and protect the rights of the consumers such as,—
(a) the right to be protected against the marketing of goods 38 [and services] which are hazardous to life and
property;
(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods 39 [or
services, as the case may be] so as to protect the consumer against unfair trade practices;
(c) the right to be assured, wherever possible, access to a variety of goods 40 [and services] at competitive
prices;
(d) the right to be heard and to be assured that consumer's interests will receive due consideration at
appropriate fora;
(e) the right to seek redressal against unfair trade practices 40 [or restrictive trade practices] or unscrupulous
exploitation of consumers; and
(f) the right to consumer education.
S. 7. The State Consumer Protection Councils.—
(1) 41 [The State Government shall], by notification, establish with effect from such date as it may specify in
such notification, a Council to be known as the Consumer Protection Council for (hereinafter referred to as
the State Council).
42[(2) The State Council shall consist of the following members, namely:—
(a) the Minister incharge of consumer affairs in the State Government who shall be its Chairman;
(b) such number of other official or non-official members representing such interests as may be prescribed
by the State Government.
43[(c) such number of other official or non-official members, not exceeding ten, as may be nominated by
the Central Government;]
(3) The State Council shall meet as and when necessary but not less than two meetings shall be held every
year.
(4) The State Council shall meet at such time and place as the Chairman may think fit and shall observe such
procedure in regard to the transaction of its business as may be prescribed by the State Government.]
S. 8. Objects of the State Council.—
The objects of every State Council shall be to promote and protect within the State the rights of the consumers
laid down in clauses (a) to (f) of section 6.
Page 7 of 31
44[S. 8A. The District Consumer Protection Council.—
(1) The State Government shall establish for every district, by notification, a council to be known as the District
Consumer Protection Council with effect from such date as it may specify in such notification.
(2) The District Consumer Protection Council (hereinafter referred to as the District Council) shall consist of the
following numbers, namely:—
(a) The Collector of the district (by whatever name called), who shall be its Chairman; and
(b) such number of other official and non-official members representing such interests as may be
prescribed by the State Government.
(3) The District Council shall meet as and when necessary but not less than two meetings shall be held every
year.
(4) The District Council shall meet as such time and place within the district as the Chairman may think fit and
shall observe such procedure in regard to the transaction of its business as may be prescribed by the State
Government.
S. 8B. Objects of the District Council.—
The objects of every District Council shall be to promote and protect within the district the rights of the
consumers laid down in clauses (a ) to (f ) of section 6 .]
CHAPTER III CONSUMER DISPUTES REDRESSAL AGENCIES
S. 9. Establishment of Consumer Disputes Redressal Agencies.—
There shall be established for the purposes of this Act, the following agencies, namely:—
(a) a Consumer Disputes Redressal Forum to be known as the “District Forum” established by the State
Government 45 [***] in each district of the State by notification:
46[Provided that the State Government may, if it deems fit, establish more than one District Forum in a district;]
(b) a Consumer Disputes Redressal Commission to be known as the “State Commission” established by the
State Government 45 [***] in the State by notification; and
(c) a National Consumer Disputes Redressal Commission established by the Central Government by
notification.
S. 10. Composition of the District Forum.—

Page 8 of 31
47[(1) Each District Forum shall consist of,—

(a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President;
48[(b) two other members, one of whom shall be a woman, who shall have the following qualifications,
namely:—
(i) be not less than thirty-five years of age,
(ii) possess a bachelor's degree from a recognised university,
49[(1A) Every appointment under sub-section (1) shall be made by the State Government on the
recommendation of a selection committee consisting of the following, namely:—
(i) President of the State Commission —Chairman
(ii) Secretary, Law Department of the State —Member
(iii) Secretary, incharge of the Department dealing with consumer affairs in the State —Member:]
50 [Provided that where the President of the State Commission is, by reason of absence or otherwise,
unable to act as Chairman of the Selection Committee, the State Government may refer the matter to
the Chief Justice of the High Court for nominating a sitting Judge of the High Court to act as
Chairman.]
51[(2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five
years, whichever is earlier:
Provided that a member shall be eligible for re-appointment for another term of five years or up to the
age of sixty-five years, whichever is earlier, subject to the condition that he fulfils the qualifications and
other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is
also made on the basis of the recommendation of the Selection Committee:
Provided further that a member may resign his office in writing under his hand addressed to the State
Government and on such resignation being accepted, his office shall become vacant and may be filled
by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in
relation to the category of the member who is required to be appointed under the provisions of sub-
section (1A) in place of the person who has resigned:
Provided also that a person appointed as the President or as a member, before the commencement of
the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or
member, as the case may be, till the completion of his term.]
(3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of
the members of the District Forum shall be such as may be prescribed by the State Government:
52 [Provided that the appointment of a member on whole-time basis shall be made by the State
Government on the recommendation of the President of the State Commission taking into
consideration such factors as may be prescribed including the work load of the District Forum.]
S. 11. Jurisdiction of the District Forum.—
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints
where the value of the goods or services and the compensation, if any, claimed 53 [does not exceed
rupees twenty lakhs].
Page 9 of 31
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the
institution of the complaint, actually and voluntarily resides or 54 [carries on business or has a branch
office or] personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the
complaint, actually and voluntarily resides, or 55 [carries on business or has a branch office], or
personally works for gain, provided that in such case either the permission of the District Forum is
given, or the opposite parties who do not reside, or 56 [carry on business or have a branch office], or
personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
57[S. 12. Manner in which complaint shall be made.—
(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service
provided or agreed to be provided may be filed with a District Forum by—
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such
service provided or agreed to be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or
agreed to be sold or delivered or service provided or agreed to be provided is a member of such
association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the
permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government, as the case may be, either in its individual capacity or as a
representative of interests of the consumers in general.
(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in
such manner as may be prescribed.
(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint
to be proceeded with or rejected:
Provided that a complaint shall not be rejected under this sub-section unless an opportunity of being
heard has been given to the complainant:
Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one
days from the date on which the complaint was received.
(4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed
with the complaint in the manner provided under this Act:
Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to
any other court or tribunal or any authority set up by or under any other law for the time being in force.
Explanation.— For the purposes of this section, “recognised consumer association” means any
voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law
for the time being in force.]
Page 10 of 31
S. 13. 58 [Procedure on admission of complaint].—
(1) The District Forum shall, 59 [on admission of a complaint], if it relates to any goods,—
60[(a) refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the
opposite party mentioned in the complaint directing him to give his version of the case within a period
of thirty days or such extended period not exceeding fifteen days as may be granted by the District
Forum];
(b) where the opposite party on receipt of a complaint referred to him under clause (a ) denies or disputes
the allegations contained in the complaint, or omits or fails to take any action to represent his case
within the time given by the District Forum, the District Forum shall proceed to settle the consumer
dispute in the manner specified in clauses (c ) to (g );
(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis
or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it
and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate
laboratory along with a direction that such laboratory make an analysis or test, whichever may be
necessary, with a view to finding out whether such goods suffer from any defect alleged in the
complaint or from any other defect and to report its findings thereon to the District Forum within a
period of forty-five days of the receipt of the reference or within such extended period as may be
granted by the District Forum;
(d) before any sample of the goods is referred to any appropriate laboratory under clause (c ), the District
Forum may require the complainant to deposit to the credit of the Forum such fees as may be
specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in
relation to the goods in question;
(e) the District Forum shall remit the amount deposited to its credit under clause (d ) to the appropriate
laboratory to enable it to carry out the analysis or test mentioned in clause (c ) and on receipt of the
report from the appropriate laboratory, the District Forum shall forward a copy of the report along with
such remarks as the District Forum may feel appropriate to the opposite party;
(f) if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the
correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum
shall require the opposite party or the complainant to submit in writing his objections in regard to the
report made by the appropriate laboratory;
(g) the District Forum shall thereafter give a reasonable opportunity to the complainant as well as the
opposite party of being heard as to the correctness or otherwise of the report made by the appropriate
laboratory and also as to the objection made in relation thereto under clause (f ) and issue an
appropriate order under section 14.
(2) The District Forum shall, if the 61 [complaint admitted] by it under section 12 relates to goods in respect of
which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any
services,—
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a
period of thirty days or such extended period not exceeding fifteen days as may be granted by the
District Forum;
(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a ) denies
or disputes the allegations contained in the complaint, or omits or fails to take any action to represent
his case within the time given by the District Forum, the District Forum shall proceed to settle the
consumer dispute,—
Page 11 of 31
(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the
opposite party denies or disputes the allegations contained in the complaint, or
(ii) 62 [ex parte on the basis of evidence] brought to its notice by the complainant where the opposite
party omits or fails to take any action to represent his case within the time given by the Forum.
63[(c) where the complainant fails to appear on the date of hearing before the District Forum, the District
Forum may either dismiss the complaint for default or decide it on merits.]
(3) No proceedings complying with the procedure laid down in sub-sections (1) and (2) shall be called in
question in any court on the ground that the principles of natural justice have not been complied with.
64[(3A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the
complaint within a period of three months from the date of receipt of notice by opposite party where the
complaint does not require analysis or testing of commodities and within five months if it requires analysis
or testing of commodities:
Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause
is shown and the reasons for grant of adjournment have been recorded in writing by the Forum:
Provided further that the District Forum shall make such orders as to the costs occasioned by the
adjournment as may be provided in the regulations made under this Act:
Provided also that in the event of a complaint being disposed of after the period so specified, the
District Forum shall record in writing, the reasons for the same at the time of disposing of the said
complaint.
(3B) Where during the pendency of any proceeding before the District Forum, it appears to it necessary, it may
pass such interim order as is just and proper in the facts and circumstances of the case.]
(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court
under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters,
namely:—
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness or
oath,
(ii) the discovery and production of any document or other material object producible as evidence,
(iii) the reception of evidence on affidavits,
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from
any other relevant source,
(v) issuing of any commission for the examination of any witness, and
(vi) any other matter which may be prescribed.
(5) Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning
of sections 193 and 228 Indian Penal Code (45 of 1860), and the District Forum shall be deemed to be a
civil court for the purposes of section 195, and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of
1974).
65[(6) Where the complainant is a consumer referred to in sub-clause (iv ) of clause (b ) of sub-section (1) of
section 2, the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of
1908) shall apply subject to the modification that every reference therein to a suit or decree shall be
construed as a reference to a complaint or the order of the District Forum thereon.]
66[(7) In the event of death of a complainant who is a consumer or of the opposite party against whom the
complaint has been filed, the provisions of Order XXII of the First Schedule to the Code of Civil Procedure,
1908 (5 of 1908) shall apply subject to the modification that every reference therein to the plaintiff and the
defendant shall be construed as reference to a complainant or the opposite party, as the case may be.]
Page 12 of 31
S. 14. Finding of the District Forum.—
(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods
complained against suffer from any of the defects specified in the complaint or that any of the allegations
contained in the complaint about the services are proved, it shall issue an order to the opposite party
directing him to 67 [do] one or more of the following things, namely:—
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury
suffered by the consumer due to the negligence of the opposite party:
68 [Provided that the District Forum shall have the power to grant punitive damages in such
circumstances as it deems fit.]
69[(e) to 70 [remove the defects in goods ] or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
68[(ha) to cease manufacture of hazardous goods and to desist from offering services which are hazardous
in nature;
(hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered
by a large number of consumers who are not identifiable conveniently:
Provided that the minimum amount of sum so payable shall not be less than five per cent. of the
value of such defective goods sold or services provided, as the case may be, to such consumers:
Provided further that the amount so obtained shall be credited in favour of such person and utilized
in such manner as may be prescribed;
(hc) to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the
opposite party responsible for issuing such misleading advertisement;]
(i) to provide for adequate costs to parties.]
71[(2) Every proceeding referred to in sub-section (1) shall be conducted by the President of the District Forum
and at least one member thereof sitting together:
72 [Provided that where a member, for any reason, is unable to conduct a proceeding till it is
completed, the President and the other member shall continue the proceeding from the stage at which
it was last heard by the previous member.]
(2A) Every order made by the District Forum under sub-section (1) shall be signed by its President and the
member or members who conducted the proceeding:
Provided that where the proceeding is conducted by the President and one member and they differ on
any point or points, they shall state the point or points on which they differ and refer the same to the
other member for hearing on such point or points and the opinion of the majority shall be the order of
the District Forum.]
Page 13 of 31
(3) Subject to the foregoing provisions, the procedure relating to the conduct of the meetings of the District
Forum, its sittings and other matters shall be such as may be prescribed by the State Government.
S. 15. Appeal.—
Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the
State Commission within a period of thirty days from the date of the order, in such form and manner as may be
prescribed:
Provided that the Commission may entertain an appeal after the expiry of the said period of thirty days if it is
satisfied that there was sufficient cause for not finding it within that period.
73 [Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the
District Forum, shall be entertained by the State Commission unless the appellant has deposited in the
prescribed manner fifty per cent. of that amount or twenty-five thousand rupees, whichever is less.]
S. 16. Composition of the State Commission.—
(1) Each State Commission shall consist of—

(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be
its President:
74 [Provided that no appointment under this clause shall be made except after consultation with
the Chief Justice of the High Court;]
75[(b) not less than two, and not more than such number of members, as may be prescribed, and one of
whom shall be a woman, who shall have the following qualifications, namely:—
(i) be not less than thirty-five years of age;
(ii) possess a bachelor's degree from a recognised university; and
76[(1A) Every appointment under sub-section (1), shall be made by the State Government on the
recommendation of a Selection Committee consisting of the following members, namely:—
(i) President of the State Commission—Chairman;
(ii) Secretary of the Law Department of the State — Member;
(iii) Secretary incharge of the Department dealing with Consumer Affairs in the State—.Member:
Provided that where the President of the State Commission is, by reason of absence or otherwise,
unable to act as Chairman of the Selection Committee, the State Government may refer the matter to
the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as
Chairman.
(1B)
(i) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof.
Page 14 of 31
(ii) A Bench may be constituted by the President with one or more members as the President may deem fit.
(iii) If the members of a Bench differ in opinion on any point, the points shall be decided according to the
opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the
point or points on which they differ, and make a reference to the President who shall either hear the
point or points himself or refer the case for hearing on such point or points by one or more or the other
members and such point or points shall be decided according to the opinion of the majority of the
members who have heard the case, including those who first heard it].
(2) The salary or honorarium and other allowances payable to, and the other terms and conditions of service 77
[* * *] of, the members of the State Commission shall be such as may be prescribed by the State
Government:
78 [Provided that the appointment of a member on whole-time basis shall be made by the State
Government on the recommendation of the President of the State Commission taking into
consideration such factors as may be prescribed including the work load of the State Commission.]
79[(3) Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-
seven years, whichever is earlier:
age of sixty-seven years, whichever is earlier, subject to the condition that he fulfills the qualifications
and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-
appointment is made on the basis of the recommendation of the Selection Committee:
Provided further that a person appointed as a President of the State Commission shall also be eligible
for re-appointment in the manner provided in clause (a) of sub-section (1) of this section:
Provided also that a member may resign his office in writing under his hand addressed to the State
section (1A) in place of the person who has resigned.
(4) Notwithstanding anything contained in sub-section (3), a person appointed as the President or as a
member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to
hold such office as President or member, as the case may be, till the completion of his term.]
S. 17. Jurisdiction of the State Commission.—
80[(1)] Subject to the other provisions of this Act, the State Commission shall have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or services and compensation, if any, claimed 81 [exceeds
rupees twenty lakhs but does not exceed rupees one crore ]; and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or
has been decided by any District Forum within the State, where it appears to the State Commission
that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a
jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
82[(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,—
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(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the
institution of the complaint, actually and voluntarily resides or carries on business or has a branch
office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the
complaint, actually and voluntarily resides, or carries on business or has a branch office or personally
works for gain, provided that in such case either the permission of the State Commission is given or
the opposite parties who do not reside or carry on business or have a branch office or personally work
for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.]
83[S. 17A. Transfer of cases.—
On the application of the complainant or of its own motion, the State Commission may, at any stage of the
proceeding, transfer any complaint pending before the District Forum to another District Forum within the State
in the interest of justice so requires.
S. 17B. Circuit Benches.—
The State Commission shall ordinarily function in the State Capital but may perform its functions at such other
place as the State Government may, in consultation with the State Commission, notify in the Official Gazette,
from time to time.]
S. 18. Procedure applicable to State Commissions.—
84 [The provisions of Sections 12, 13 and 14 and the rules made thereunder] for the disposal of complaints by
the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes
by the State Commission.
85[S. 18A. * * *]
Page 16 of 31
S. 19. Appeals.—
Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-
clause (i ) of clause (a ) of section 17 may prefer an appeal against such order to the National Commission
within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days
if it is satisfied that there was sufficient cause for not filing it within that period.
86 [Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the
State Commission, shall be entertained by the National Commission unless the appellant has deposited in the
prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less.]
87[S. 19A. Hearing of appeal.—
An appeal filed before the State Commission or the National Commission shall be heard as expeditiously as
possible and an endeavour shall be made to finally dispose of the appeal within a period of ninety days from
the date of its admission:
Provided that no adjournment shall be ordinarily granted by the State Commission or the National Commission,
as the case may be, unless sufficient cause is shown and the reasons for grant of adjournment have been
recorded in writing by such Commission:
Provided further that the State Commission or the National Commission, as the case may be, shall make such
orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this
Act:
Provided also that in the event of an appeal being disposed of after the period so specified, the State
Commission or the National Commission, as the case may be, shall record in writing the reasons for the same
at the time of disposing of the said appeal.]
S. 20. Composition of the National Commission.—
(1) The National Commission shall consist of—

(a) a person who is or has been a Judge of the Supreme Court, to be appointed by the Central
Government, who shall be its President;
88 [Provided that no appointment under this clause shall be made except after consultation with
the Chief Justice of India;]
89[(b) not less than four, and not more than such number of members, as may be prescribed, and one of
whom shall be a woman, who shall have the following qualifications, namely:—
Page 17 of 31
(i) be not less than thirty-five years of age;

(ii) possess a bachelor's degree from a recognised university; and
Explanation.— For the purposes of this clause, the expression “persons having judicial background”
shall mean persons having knowledge and experience for at least a period of ten years as a presiding
officer at the district level court or any tribunal at equivalent level:
Provided further that a person shall be disqualified for appointment if he—
(a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the Central
Government, involves moral turpitude; or
(b) is an undischarged insolvent; or
(c) is of unsound mind and stands so declared by a competent court; or
(d) has been removed or dismissed from the service of the Government or a body corporate owned or
controlled by the Government; or
(e) has in the opinion of the Central Government, such financial or other interest as is likely to affect
prejudicially the discharge by him of his functions as a member; or
(f) has such other disqualifications as may be prescribed by the Central Government:
Provided also that every appointment under this clause shall be made by the Central Government
on the recommendation of a selection committee consisting of the following, namely:—
(a) A person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India —
Chairman;
(b) The Secretary in the Department of Legal Affairs in the Government of India —Member;
90[(1A)
(i) The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof.
(ii) A Bench may be constituted by the President with one or more members as the President may deem fit.
(iii) If the Members of a Bench differ in opinion on any point, the points shall be decided according to the
opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the
point or points on which they differ, and make a reference to the President who shall either hear the
point or points himself or refer the case for hearing on such point or points by one or more or the other
Members and such point or points shall be decided according to the opinion of the majority of the
Members who have heard the case, including those who first heard it.]
(2) The salary or honorarium and other allowances payable to and the other terms and conditions of service 91
[* * *] of the members of the National Commission shall be such as may be prescribed by the Central
Government.
9293[(3) Every member of the National Commission shall hold office for a term of five years or up to the age of
seventy years, whichever is earlier:
age of seventy years, whichever is earlier, subject to the condition that he fulfils the qualifications and
other conditions for appointment mentioned in clause (b) or sub-section (1) and such reappoint-ment is
made on the basis of the recommendation of the Selection Committee:
Provided further that a person appointed as a President of the National Commission shall also be
eligible for re-appointment in the manner provided in clause (a) of sub-section (1):
Provided also that a member may resign his office in writing under his hand addressed to the Central
Page 18 of 31
section (1A) in place of the person who has resigned.
(4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member
before the commencement of the Consumer Protection (Amendment) Act, 2002 shall continue to hold such
office as President or member, as the case may be, till the completion of his term.]
S. 21. Jurisdiction of the National Commission.—
Subject to the other provisions of this Act, the National Commission shall have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees
94 [one crore ]; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has
been decided by any State Commission where it appears to the National Commission that such State
Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so
vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
95[S. 22. Power and procedure applicable to the National Commission.—
(1) The provisions of sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by
the District Forum shall, with such modifications as may be considered necessary by the Commission, be
applicable to the disposal of disputes by the National Commission.
(2) Without prejudice to the provisions contained in sub-section (1), the National Commission shall have the
power to review any order made by it, when there is an error apparent on the face of record.]
96[S. 22A. Power to set aside ex parte orders.—
Where an order is passed by the National Commission ex parte against the opposite party or a complainant, as
the case may be, the aggrieved party may apply to the Commission, to set aside the said order in the interest
of justice.]
86[S. 22B. Transfer of cases.—

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On the application of the complainant or of its own motion, the National Commission may, at any stage of the
proceeding, in the interest of justice, transfer any complaint pending before the District Forum of one State to a
District Forum of another State or before one State Commission to another State Commission.]
86[S. 22C. Circuit Benches.—
The National Commission shall ordinarily function at New Delhi and perform its functions at such other place as
the Central Government may, in consultation with the National Commission notify in the Official Gazette, from
time to time.
86[S. 22D. Vacancy in the office of the President.—
When the office of President of a District Forum, State Commission, or of the National Commission, as the
case may be, is vacant or a person occupying such office is, by reason of absence or otherwise, unable to
perform the duties of his office, these shall be performed by the senior-most member of the District Forum, the
State Commission or of the National Commission, as the case may be:
Provided that where a retired Judge of a High Court is a Member of the National Commission, such member or
where the number of such members is more than one, the senior-most person among such members, shall
preside over the National Commission in the absence of President of that Commission.]
S. 23 Appeal.—
Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by
sub-clause (i ) of clause (a ) of section 21, may prefer an appeal against such order of the Supreme Court
within a period of thirty days from the date of the order:
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is
satisfied that there was sufficient cause for not filing it within that period.
97 [Provided further that no appeal by a person who is required to pay any amount in terms of an order of the
National Commission shall be entertained by the Supreme Court unless that person has deposited in the
prescribed manner fifty per cent. of that amount or rupees fifty thousand, whichever is less.]
Page 20 of 31
S. 24. Finality of orders.—
Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been
preferred against such order under the provisions of this Act, be final.
[S.S. 24A. Limitation period.—
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it
is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period
specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the
National Commission, as the case may be, that he had sufficient cause for not filing the complaint within
such period:
Provided that no such complaint shall be entertained unless the National Commission, the State
Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
S. 24B. Administrative control.—
(1) The National Commission shall have administrative control over all the State Commissions in the following
matters, namely:—
(i) calling for periodical return regarding the institution, disposal, pendency of cases;
(ii) issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service
of copies of documents produced by one party to the opposite parties, furnishing of English translation
of judgments written in any language, speedy grant of copies of documents;
(iii) generally overseeing the functioning of the State Commissions or the District Fora to ensure that the
objects and purposes of the Act are best served without in any way interfering with their quasi-judicial
freedom.
(2) The State Commission shall have administrative control over all the District Fora within its jurisdiction in all
matters referred to in sub-section (1)].
25. Enforcement of orders of the District Forum, the State Commission or

the National Commission.—
Page 21 of 31
(1) Where an interim order made under this Act, is not complied with, the District Forum or the State
Commission or the National Commission, as the case may be, may order the property of the person, not
complying with such order to be attached.
(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of
which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof,
the District Forum or the State Commission or the National Commission may award such damages as it
thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.
(3) Where any amount is due from any person under an order made by a District Forum, State Commission or
the National Commission, as the case may be, the person entitled to the amount may make an application
to the District Forum, the State Commission or the National Commission, as the case may be, and such
District Forum or the State Commission or the National Commission may issue a certificate for the said
amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover
the amount in the same manner as arrears of land revenue.]
[26. Dismissal of frivolous or vexatious complaints.—
Where a complaint instituted before the District Forum, the State Commission or, as the case may be, the
National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss
the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding
ten thousand rupees, as may be specified in the order.]
S. 27. Penalties.—
[(1)] Where a trader or a person against whom a complaint is made 4 [or the complainant] fails or omits to
comply with any order made by the District Forum, the State Commission or the National Commission, as
the case may be, such trader or person [or complainant] shall be punishable with imprisonment for a term
which shall not be less than one month but which may extend to three years, or with fine which shall not be
less than two thousands rupees but which may extend to ten thousand rupees, or with both:
5 [***]
[(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum
or the State Commission or the National Commission, as the case may be, shall have the power of a
Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of
powers, the District Forum or the State Commission or the National Commission, as the case may be, on
whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the
purpose of the Code of Criminal Procedure, 1973.
(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the
National Commission, as the case may be.]
Page 22 of 31
[S. 27A. Appeal against order passed under section 27 .—
(1) Notwithstanding anything contained in the section 27, both on facts and on law, shall lie from—
(a) the order made by the District Forum to the State Commission;
(b) the order made by the State Commission to the National Commission; and
(c) the order made by the National Commission to the Supreme Court.
(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State
Commission or the National Commission.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of
a District Forum or a State Commission or, as the case may be, the National Commission;
Provided that the State Commission or the National Commission or the Supreme Court, as the case
may be, may entertain an appeal after the expiry of the said period of thirty days, if, it is satisfied that
the appellant had sufficient cause for not preferring the appeal within the period of thirty days.]
CHAPTER IV MISCELLANEOUS
S. 28. Protection of action taken in good faith.—
No suit, prosecution or other legal proceedings shall lie against the members of the District Forum, the State
Commission or the National Commission or any officer or person acting under the direction of the District
Forum, the State Commission or the National Commission for executing any order made by it or in respect of
anything which is in good faith done or intended to be done by such member, officer or person under this Act or
under any rule or order made thereunder.
28A. Service of notice, etc.—
(1) All notices, required by this Act to be served, shall be served in the manner hereinafter mentioned in sub-
section (2).
(2) The service of notices may be made by delivering or transmitting a copy thereof by registered post
acknowledgment due addressed to opposite party against whom complaint is made or to the complainant
by speed post or by such courier service as are approved by the District Forum, the State Commission or
the National Commission, as the case may be, or by any other means of transmission of documents
(including FAX message).
(3) When an acknowledgment or any other receipt purporting to be signed by the opposite party or his agent or
by the complainant is received by the District Forum, the State Commission or the National Commission,
as the case may be, or postal article containing the notice is received back by such District Forum, State
Commission or the National Commission, with an endorsement purporting to have been made by a postal
employee or by any person authorised by the courier service to the effect that the opposite party or his
agent or complainant had refused to take delivery of the postal article containing the notice or had refused
Page 23 of 31
to accept the notice by any other means specified in sub-section (2) when tendered or transmitted to him,
the District Forum or the State Commission or the National Commission, as the case may be, shall declare
that the notice had been duly served on the opposite party or to the complainant:
Provided that where the notice was properly addressed, pre-paid and duly sent by registered post
acknowledgment due, a declaration referred to in this subsection shall be made notwithstanding the
fact that the acknowledgment has been lost or mislaid, or for any other reason, has not been received
by the District Forum, the State Commission or the National Commission, as the case may be, within
thirty days from the date of issue of notice.
(4) All notices required to be served on an opposite party or to complainant shall be deemed to be sufficiently
served, if addressed in the case of the opposite party to the place where business or profession is carried
and in case of complainant, the place where such person actually and voluntarily resides.]
S. 29. Power to remove difficulties.—
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order in
the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to
be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the
commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made be laid before each House of
Parliament.
[(3) If any difficulty arises in giving effect to the provisions of the Consumer Protection (Amendment) Act, 2002,
the Central Government may, by order, do anything not inconsistent with such provisions for the purpose of
removing the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the
commencement of the Consumer Protection (Amendment) Act, 2002.
(4) Every order made under sub-section (3) shall be laid before each House of Parliament.]
[29A. Vacancies or defects in appointment not to invalidate orders.—
No act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid
by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof.]
[S. 30. Power to make rules.—

Page 24 of 31
(1) The Central Government may, by notification, make rules for carrying out the provisions contained in clause
(a) of subsection (1) of section 2, clause (b) of sub-section (2) of section 4, sub-section (2) of section 5,
sub-section (2) of section 12, clause (vi) of sub-section (4) of section 13, clause (hb) of sub-section (1) of
section 14, section 19, clause (b) of subsection (1) and sub-section (2) of section 20, section 22 and
section 23 of this Act.
(2) The State Government may, by notification, make rules for carrying out the provisions contained in clause
(b) of sub-section (2) and sub-section (4) of section 7, clause (b) of sub-section (2) and sub-section (4) of
section 8A, clause (b) of sub-section (1) and sub-section (3) of section 10, clause (c) of sub-section (1) of
section 13, clause (hb) of sub-section (1) and sub-section (3) of section 14, section 15 and clause (b) of
sub-section (1) and sub-section (2) of section 16 of this Act.]
[S. 30A. Power of the National Commission to make regulations.—
(1) The National Commission may, with the previous approval of the Central Government, by notification, make
regulations not inconsistent with this Act to provide for all matters for which provision is necessary or
expedient for the purpose of giving effect to the provisions of this Act.
(2) In particular and without prejudice to the generality of the forgoing power, such regulations may make
provisions for the cost of adjournment of any proceeding before the District Forum, the State Commission
or the National Commission, as the case may be, which a party may be ordered to pay.]
“S. 31. Rules and regulation to be laid before each House of Parliament.—
(1) Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before
each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in
one session or in two or more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree in making any modification
in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or
regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice to the validity of anything
previously done under that rule or regulation.
(2) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made,
before the State Legislature.]
11
The provisions of Chapters I, II and IV of this Act have came into force in the whole of India except the
State of Jammu and Kashmir on 15-4-1987: vide Notification No. SO 390(E), dated 15th April, 1987,
published in the Gazette of India, 1987, Extra., pt. II, s. 3(ii).
The provisions of Chapter III of this Act have come into force in the whole of India except the State of
Jammu and Kashmir on 1-7-1987: vide Notification, No. SO 568(E), dated 10th June, 1987, published in
the Gazette of India, 1987, Extra., pt. II, s. 3(ii). 748 LAW OF TORTS APP. III
12
Page 25 of 31
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 2 (w.e.f. 18-6-1993).
13
Ins. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 2 (w.e.f. 18-6-1993).
16
17
Subs. for ‘any trader’ by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 2 (w.e.f. 15-3-
2003).
18
Subs. by Act 50 of 1993, s. 2 (w.e.f. 18-6-1993), for “the goods mentioned in the complaint”.
20
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 2, for “hires” (w.r.e.f. 18-6-
1993).
21
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 2, for “hires” (w.r.e.f. 18-6-
1993).
22
Ins. by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 2 (w.e.f. 15-3-2003).
23
Subs. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 2 (w.e.f. 15-3-2003) for the
following:
“ Explanation.— For the purposes of sub-clause (i), “commercial purpose” does not include use by a
consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means
of self-employment.”
24
Ins. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). S. 2 (w.e.f. 18-6-1993).
25
Subs. by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 2 (w.e.f. 15-3-2003) for the
following:
‘(j ) “manufacturer” means a person who—
(i ) makes or manufactures any goods or parts thereof; or
(ii ) does not make or manufacture any goods but assembles parts thereof made or manufactured by others
and claims the end-product to be goods manufactured by himself; or
(iii ) or causes to be put his own mark on any goods made or manufactured by any other manufacturer and
claims such goods to be goods made or manufactured by himself. Explanation.— Where a
manufacturer despatches any goods or part thereof to any branch office maintained by him, such
branch office shall not be deemed to be the manufacturer even though the parts so despatched to it
are assembled at such branch office and are sold or distributed from such branch office;’
26
Ins. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 2 (w.r.e.f. 18-6-1993).
27
following:
Page 26 of 31
‘(nn ) “restrictive trade practice” means any trade practice which requires a consumer to buy, hire or avail of
any goods or, as the case may be, services as a condition precedent for buying, hiring or availing of other
goods or services;’
28
Cl. (nnn) alongwith cl. (nn) subs. for the earlier clause (nn) by Act 62 of 2002, s. 2 (w.e.f. 15-3- 2003).
29
words “users and includes, but not limited to the provision of”.
30
Ins. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993), s. 2 (w.r.e.f. 18-6- 1993).
31
32
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 2 (w.r.e.f. 18-6- 1993).
33
34
Ins. by Act 62 of 2002, s. 3, for “The Central Government may” (w.e.f. 15-3-2003).
35
Subs. by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), dt. 17-12-2002 for “The Central
Government may”.
36
37
Subs. by Act 50 of 1993, s. 4, for “not less than three meetings” (w.e.f. 18-6-1993).
38
39
40
41
Subs. by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 4 for “The State Government
may” (w.e.f. 15-3-2003).
42
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 6 (w.r.e.f. 18-6- 1993).
43
44
S. 8A and 8B ins. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 5 (w.e.f. 15-3-2003).
45
Page 27 of 31
The words “with the prior approval of the Central Government” omitted by the Consumer Protection
(Amendment) Act, 1993 (50 of 1993). s. 7 (w.r.e.f. 18-6-1993).
46
Ins. by Act 50 of 1993, s. 7 (w.e.f. 18-6-1993).
47
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 8, for sub-section (1) (w.r.e.f.
18-6-1993).
48
Subs. by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 6 for the following :
“(b ) two other members, who shall be persons of ability, integrity and standing, and have adequate
knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law,
commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.”
49
Ins. by Act 50 of 1993, s. 8 (w.e.f. 18-6-1993).
50
Ins. by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 6 (w.e.f. 15-3-2003)
51
Subs. by The Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 6 for the following:
“(2) Every member of the District Forum shall hold office for a term of five years or up to the age of 65
years, whichever is earlier, and shall not be eligible for re-appointment;
Provided that a member may resign his office in writing under his hand-addressed to the State Government
and on such resignation being accepted, his office shall become vacant and may be filled by the
appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the
category of the member who has resigned.” (w.e.f. 15-3-2003).
52
53
Subs. for ‘does not exceed rupees five lakhs’ by The Consumer Protection (Amendment) Act, 2002 (62 of
2002), s. 7 (w.e.f. 15-3-2003), earlier Subs. by the Consumer Protection (Amendment) Act, 1993 (50 of
1993). s. 9, for “is less than rupees one lakh” (w.e.f. 18-6-1993).
54
Subs. by the Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 9, for “carries on business or”
(w.e.f. 18-6-1993).
55
Subs. by Act 50 of 1993, s. 9, for “carries on business” (w.e.f. 18-6-1993).
56
Subs. by Act 50 of 1993, s. 9, for “carry on business” (w.e.f. 18-6-1993).
57
Subs. by Act 50 of 1993, s. 10 (w.e.f. 18-6-1993) and again s. 8 subs. by The Consumer Protection
(Amendment) Act, 2002 (62 of 2002), for the following:
“S. 12. Manner in which complaint shall be made.— A complaint in relation to any goods sold or
delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed
with a District Forum by—
Page 28 of 31
(a ) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such
service provided or agreed to be provided;
(b ) any recognised consumer association whether the consumer to whom the goods sold or delivered or
agreed to be sold or delivered or service provided or agreed to be provided is a member of such
association or not;
(c ) one or more consumers, where there are numerous consumers having the same interest, with the
permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d ) the Central or the State Government.
Explanation.— For the purpose of this section, “recognised consumer association” means any voluntary
consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time
being in force.” (w.e.f. 15-3-2003).
58
Subs. for ‘Procedure on receipt of complaint’ by the Consumer Protection (Amendment) Act, 2002 (62 of
2002), s. 9 (w.e.f. 15-3-2003).
59
Subs. for ‘on receipt of complaint’ by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 9
(w.e.f. 15-3-2003).
60
Subs. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), dated 17-12-2002 for the
following:
“ (a ) refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his
version of the case within a period of thirty days or such extended period not exceeding fifteen days as may
be granted by the District Forum;” (w.e.f. 15-3-2003).
61
Subs. for ‘complaint received’ by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 9 (w.e.f.
15-3-2003).
62
Subs. for ‘on the basis of evidence’ by the Consumer Protection (Amendment) Act, 2002 (62 of 2002, s. 9
(w.e.f. 15-3-2003).
63
Ins. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 9 (w.e.f. 15-3-2003).
64
Ins. by Act 62 of 2002, s. 9 (w.e.f. 15-3-2003).
65
66
67
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). s. 12, for “take” (w.e.f. 18-6-
1993).
68
69
Page 29 of 31
70
Subs. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 10, for ‘remove the defects ’
(w.e.f. 15-3-2003).
71
72
Subs. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 10 for the following :
“ Provided that where the member, for any reason, is unable to conduct the proceeding till it is completed,
the President and the other member shall conduct such proceeding de novo. ” (w.e.f. 15-3-2003).
73
74
75
“(b) two other members, who shall be persons of ability, integrity and standing and have adequate
knowledge or experience of, or have shown capacity in dealing with, problems relating to economics,
law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman:
Provided that every appointment made under this clause shall be made by the State Government on the
(i) the President of the State Commission —Chairman.
(ii) Secretary of the Law Department of the State —Member.
(iii) Secretary, incharge of Department dealing with consumer affairs in the State —Member.”
76
77
The words “(including terms of office)” omitted by The Consumer Protection (Amendment) Act, 1993 (50 of
1993). S. 13 (w.e.f. 18-6-1993).
78
Ins. by Act 62 of 2002, s. 12 (w.e.f. 15-3-2003).
79
Subs. by Act 50 of 1993, s. 13 (w.e.f. 18-6-1993) and again subs. by the Consumer Protection
(Amendment) Act, 2002 (62 of 2002), dt. 17-12-2002 for the following :
“(3) Every member of the State Commission shall hold office for a term of five years or up to the age of
sixty-seven years, whichever is earlier and shall not be eligible for re-appointment.
(4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a
member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall
continue to hold such office as President or member, as the case may be, till the completion of his
term.” (w.e.f. 15-3-2003).
80
S. 17 renumbered as sub-section (1) thereof by the Consumer Protection (Amendment) Act, 2002 (62 of
2002), s. 13 (w.e.f. 15-3-2003).
81
Page 30 of 31
Subs. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 13, for ‘exceeds rupees five
lakhs but does not rupees twenty lakhs’ s. 13, for (w.e.f. 15-3-2003).
82
83
S s. 18A and 18B ins. by Act 62 of 2002, s. 14 (w.e.f. 15-3-2003).
84
Subs. by The Consumer Protection (Amendment) Act, 1993 (50 of 1993). S. 15 (w.e.f. 18-6- 1993).
85
Sec. 18A omitted by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 15 (w.e.f. 15-3-
2003) Prior to omission s. 18 A stood as under:—
“S. 18A. Vacancy in the office of the President.—When the office of the President of the District Forum or of
the State Commission, as the case may be, is vacant or when any such President is, by reason of absence
or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such
person, who is qualified to be appointed as President of the District Forum or, as the case may be, of the
State Commission, as the State Government may appoint for the purpose.”
86
87
88
89
Subs. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 18 (w.e.f. 15-3-2003), for the
following :
“(b ) four other members who shall be persons of ability, integrity and standing and have adequate
knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law,
commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman:
Provided that every appointment under this clause shall be made by the Central Government on the
(a ) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India —
Chairman.
(b ) the Secretary in the Department of Legal Affairs in the Government of India —Member.
(c ) Secretary of the Department dealing with consumer affairs in the Government of India —Member.”
90
91
The words “(including tenure of office)” omitted by The Consumer Protection (Amendment) Act, 1993 (50 of
1993). S. 16 (w.e.f. 18-6-1993).
92
Ins. by Act 50 of 1993, s. 16 (w.e.f. 18-6-1993).
93
Page 31 of 31
“(3) Every member of the National Commission shall hold office for a term of five years or up to the age of
seventy years, whichever is earlier and shall not be eligible for re-appointment.
(4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a
member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall
continue to hold such office as President or member, as the case may be, till the completion of his
term.”
94
Subs. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 19, for ‘rupees twenty lakhs’
(w.e.f. 15-3-2003), earlier subs. by the Consumer Protection (Amendment) Act, 1993 (50 of 1993) s. 17
(w.e.f. 18-6-1993).
95
Subs. by Act 50 of 1993, s. 18 (w.e.f. 18-6-1993) and again subs. by the Consumer Protection
(Amendment) Act, 2002 (62 of 2002), s. 20 for the following:
“S. 22. Power of and procedure applicable to the National Commission.—The National Commission shall, in
the disposal of any complaints or any proceedings before it, have—
(a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section 13 ;
(b) the power to issue an order to the opposite party directing him to do any one or more of the things
referred to in clauses (a) to (i) of sub-section (1) of section 14,
and follow such procedure as may be prescribed by the Central Government.” (w.e.f. 15-3-2003).
96
S. 22A to S. 22 D ins. by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 20 (w.e.f. 15-3-
2003).
97
4
5
Proviso omitted by the Consumer Protection (Amendment) Act, 2002 (62 of 2002), s. 23 (w.e.f. 15-3-2003).
Proviso to its omission stood as under:
“ Provided that the District Forum, the State Commission or the National Commission, as the case may be,
may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or
fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount,
specified in this section.”
End of Document
SUMMARY(Revised by DR. AVTAR SINGH B.Com., LL.M., LL.D.(Luck))
> APPENDIX III
GENERAL PRINCIPLES
A TORT is a wrong independent of contract, giving rise to a civil remedy for which compensation is recoverable. It is
an act or omission which prejudicially affects a person in some private legal right. The word ‘tort’ is derived from the
Latin term tortum , to twist, and implies conduct which is twisted or tortious. A civil injury for which an action for
damages will not lie is not a tort, e.g. public nuisance for which no action for damages will lie by a member of the
public.
Tort principles as evolved throughout the world, whether through common law or statutory enactments, become
available to courts in India under the doctrine of “justice, equity and good conscience”. This is by virtue of the
declaration in s. 9 of the Code of Civil Procedure, 1908, which enables the courts to entertain all suits of civil nature
and as further supported by the doctrine of civil courts’ inherent powers. This branch of law is founded upon
morality.Jay Laxmi Salt Works P. Ltd. v. State of Gujarat .
Tort and contract. —Tort differs from a contract in two ways—
CHAPTER I
GENERAL PRINCIPLES
(1) A tort is inflicted against or without consent, a contract is founded upon consent.
(2) In tort no privity is needed, but it is necessarily implied in a contract.
Tort can thus be distinguished from a pure breach of contract:

(1) A tort is a violation of a right in rem (right vested in some person and available against the world at large); a
breach of contract is an infringement of a right in personam (right available only against some determinate
person or body). In the case of a tort the duty is one imposed by the law and is owed to the community at
large. In the case of a contract, the duty is fixed by the will and consent of the parties, and it is owed to a
definite person or persons.
(2) Motive is often taken into consideration in cases of tort, but it is immaterial in a breach of contract.
(3) In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a
breach of contract the measure of damages is generally more or less nearly determined by the stipulations
of the parties.
Page 2 of 82
The same act may amount to a tort and a breach of contract. Carriers, solicitors, surgeons, architects, stock-
brokers, accountants, auditors and other professional men will be liable for neglect or unskilfulness either in an
action for a breach of contract or in tort.
In recent years, however, the distinction between tort and contract is becoming blurred. A person is not to be
deprived of his right to sue in tort only because the underlying relation is that of contract. Nor a person is to be
deprived of his right to sue for a tort only because it arose while the defendant was performing his contract with a
third person. Many professional services are contractual is nature, but the breach of duty may result in a tort.
Caparo Industries Plc. v. Dickman . Heavy damages were allowed to flat buyers against the builder when the flats
were demolished by the Municipal Council. Maya Bhatia v. NDMC , AIR 1998 SC 223, 237. But apart from this
limited interaction, tort and contract principles work independently and cannot be used to supplant each other.
Tort and quasi- contract.— Quasi- contract partakes more of a remedy than an independent wrong. It is a legal
device for preventing one man from becoming rich at the cost of some other person. In tort the duty is towards
persons generally, in quasi- contract it is just only towards that other man at whose cost the defendant was getting
enriched. In tort, damages are unliquidated, in quasi contract, liquidated. Thus it resembles more with contract. It
resembles with tort only in this respect that the duty to disgorge, or pay for, benefits received is imposed by law. In
one respect it differs both from contract and tort, i.e., where a person has to return anything delivered to him by
mistake. It has been held that there is a general right to recover money paid under mistake whether of fact or law.
Kleenwort Benson Ltd. v. Lincoln City Council , (1998) 4 All ER 513 (HL).
Tort and crime.— A tort also differs from a crime—

(1) A tort is an infringement of the private rights belonging to individuals considered as individuals; a crime is a
breach of public rights and duties which affect the whole community considered as a community.
(2) In tort, the wrongdoer has to compensate the injured party, in crime he is punished by the State .
(3) In tort, the injured party brings an action; in crime proceedings are conducted in the name of the State, and
the guilty person is punished by the State.
The same set of circumstances may, in fact, from one point of view, constitute a tort, while, from another point of
view, amount to a crime (e.g. assault, libel, theft, mischief to property). In the case of an assault, the right violated is
that which every man has, viz. that his bodily safety shall be respected, and the sufferer is entitled to damages. It is
also a menace to the safety of the society, and is, therefore, punished by the State.
Elements of torts.— Every wrongful act is not a tort. To constitute a tort three things must concur—
(1) a wrongful act by the defendant;
(2) legal damage to the plaintiff; and
(3) the wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for
damages.
(1) Wrongful act.— An act is said to be wrongful if it invades the private rights of a person, viz. —
(a) the right of good reputation;
(b) the right of bodily safety and freedom; or
(c) the right of property.
(2) Legal damage.— Legal damage is not the same as actual damage. Every invasion of the plaintiff's right, or
unauthorized interference with his property imports legal damage.
In all cases of tort there must be an infringement of a right, and this is expressed by saying that INJURIA
SINE DAMNO is actionable, while DAMNUM SINE INJURIA is not. By damnum is meant damage in the
substantial sense of money, loss of comfort, service, health or the like. By injuria is meant an unauthorised
interference with some general private right conferred by law on the plaintiff; it is an act or omission of
Page 3 of 82
which the law takes cognizance as a wrong. Thus, by injuria is meant a tortious act; it need not be wilful
and malicious; for though it be accidental, if it be tortious, an action will lie.
INJURIA SINE DAMNO, therefore, means an infringement of a legal private right without any actual loss or
damage. In such a case the person whose right is infringed has a good cause of action. It is not necessary
for him to prove any special damage, because every injury imports a damage when a man is thereby
hindered of his right. Every person has an absolute right to his property, to the immunity of his person, and
to his liberty, and an infringement of this right is actionable per se . Actual perceptible damage is not,
therefore, not essential as the foundation of an action; it is sufficient to show the violation of a right in which
case the law will presume damage. Thus, in cases of assault, battery, false imprisonment, libel, trespass on
land, etc., the mere wrongful act is actionable without proof of special damage. The Court is bound to
award to the plaintiff at least nominal damages if no actual damage is proved. This principle is firmly
established by the election case of Ashby v. White (the vote case).
DAMNUM SINE INJURIA means an actual and substantial loss without infringement of any legal right. In
such a case no action lies. For mere loss in money or money's worth does not of itself constitute legal
damage and is not a good ground of action. The most terrible harm may be inflicted by one man on another
without legal redress being obtainable. There are many acts which though harmful are not wrongful and
give no right of action. The Gloucester Grammar School case, in which a rival school was set up next door
to the plaintiff's and Chasemore v. Richards , in which a millowner, who had used underground percolating
water for sixty years, was held to have no remedy against the defendant who stopped it by digging a well
on his own land, and Acton v. Blundell , in which a mineowner drained off underground water running into
the plaintiff's well, fully illustrate that no action lies for mere damage, however substantial, caused without
the violation of some legal right. There are moral wrongs for which the law gives no remedy, though they
cause great loss or detriment. Loss or detriment is not a good ground of action unless it is the result of a
species of wrong of which the law takes cognizance. However, the law may soon recognise a duty not to
exploit underground water to such an extent as will dry up all the wells and seriously affect life and
vegetation in the neighbourhood.
The same principles have been followed in India.
Special damage.— There are, some instances of wrongs in which no action lies unless actual or special
damage to the plaintiff has been shown. The expression ‘special damage’ in this connection means the
actual temporal loss which has, in fact, occurred. Special damage must be shown in the following cases:—
(1) Right to support of land as between adjacent landowners
(2) Menace
(3) Seduction
(4) Slander
(5) Deceit
(6) Conspiracy or confederation
(7) Waste
(8) Distress damage feasant
(9) Negligence
(10) Nuisance consisting of damage to property
(11) Actions to procure persons to break their contracts with other persons.
(3) Legal remedy.— A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under
the category of wrongs for which the remedy is a civil action for damages. Where there is no legal remedy
there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right
exists.
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General principle of liability ( Theories ).— It is still an unsettled question whether the tort law reflects a
general principle of liability or whether it is a collection of independent remediable wrongs. Winfield
propounded the first theory, Salmond the second. The chief argument in support of Winfield's theory is that
tort law is a growing subject, many new torts have come up and many existing torts have been expanded.
There is, however, no formal recognition of either theory. When invited to develop a new principle of liability
the English Courts generally consider as to how far the existing torts within their recognised boundaries are
sufficient to redress the injustice for which a new principle is sought to be developed. Proceeding on these
lines, the House of Lords declined to extend the tort of malicious prosecution to cover disciplinary
proceedings or even civil proceedings in general, though such an extension is recognised in the United
States. Gregory v. Portsmouth City Council. The English courts also “appear to be determined to arrest the
drift towards an American style cry-baby culture in which the first reaction to misfortune is an expectant
phone call to the nearest firm of solicitors,” Annual Review, All ER 1996, 471. This culture was elegantly
described by ROUGIER, J., in John Munroe (Acrylics ) Ltd. v. London Fire and Civil Defence Authority as
follows: “It is truism to say that every misfortune must, in pecuniary terms at any rate, be laid at someone
else's door, and after every mishap, the cupped palms are outstretched for the solace of monetary
compensation.” Though in India the risk is not of a drift towards the American style cry-baby culture, with
the widening of the right to life guaranteed by Article 21 of the Constitution to embrace almost everything
which goes to make a man's life meaningful, complete and worth living with dignity, the risk is that the
blame for every misfortune may be laid at the doorstep of the State.
CHAPTER II
SOME GENERAL ELEMENTS IN TORTS
Act and Omission.— To constitute a tort there must be a wrongful act, whether of omission or commission, but not
such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not
actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue
a drowning child is not actionable, but it is so where the child is one's own. A person who voluntarily commences
rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so
as to prevent them from encroaching others’ lands.
Voluntary and involuntary acts.— A voluntary act has to be distinguished from an involuntary act because the
former may involve liability and the latter may not. A self-willed act, like an encroachment for business, is voluntary,
but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends
upon legal appreciation of the surrounding circumstances.
Malice.— ‘ Malice’ is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or
‘malice in fact’ or ‘actual malice’) and ‘malice in law’ (or implied malice). The first is what is called malice in common
acceptation, and means ill-will against a person: the second means a wrongful act done intentionally without just
cause or excuse (Bromage v. Prosser ). Where a man has a right to do an act, it is not possible to make his
exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the
popular sense (Moghul Steamship Co. v. Mcgregor , the shipping combine case). An act not otherwise unlawful
cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se
does not amount to an injuria or legal wrong (Allen v. Flood , the shipwright case).
Wrongful acts of which malice is an essential element are:—(1) defamation, (2) malicious prosecution, (3) wilful and
malicious damage to property, (4) maintenance, and (5) slander of title.
Intention, Motive, Negligence and Recklessness.— The obligation to make reparation for damage caused by a
wrongful act arises from the fault, and not from the intention. Any invasion of the civil rights of another person is in
itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are
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injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent
(Allen v. Flood ). A thing which is not a legal injury or wrong, is not made actionable by being done with a bad intent.
It is no defence to an action in tort for the wrongdoer to plead that he did not intend to cause damage, if damage
has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of
knowledge of the illegality of his act or mission affords no excuse, except where fraud or malice is the essence of
that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of
his acts. This presumption is not rebutted merely by the proof that he did not think of the consequences or hoped or
expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his
act, whether he in fact contemplated them or not. (Guille v. Swan , the balloon case: Scott v. Shepherd , the lighted
squib case). These lesser states of mind may be regarded as negligence or recklessness. These distinctions have
been illustrated by admirable illustrations by Professor Street.
Malfeasance, misfeasance, non-feasance. —The term “malfeasance” applies to the commission of an unlawful
act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not
require proof of negligence or malice. The term “misfeasance” is applicable to improper performance of some lawful
act. The term “non-feasance” applies to the failure or omission to perform some act which there is an obligation to
perform.
Fault.— Liability for tort generally depends upon something done by a man which can be regarded as a fault for the
reason that it violates another man's right. But liability may also arise without fault. Such liability is known as
absolute or strict liability. An important example is the rule in Rylands v. Fletcher . Thus the two extremes of the law
of tort are of non-liability even where there is fault and of liability without fault. Between these two extremes are the
variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that
can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social
needs of the time.
Damages from radioactive properties of nuclear matter to person or property was highlighted in an international
convention. It led to the imposition of strict liability under the Nuclear Installations Act, 1965 (UK).
CHAPTER III
PERSONAL CAPACITY
There are certain persons who cannot sue in tort owing to personal disability. These are:—
(1) A convict whose sentence was in force and who was not lawfully at large under any license could not sue
for an injury to his property. This disability has now been removed by legislation in England.
A convict in India may sue for torts both to his person and property. He may sue authorities for excessive
application of force in the name of discipline or if he is detained in intolerable conditions. He has the right of
access to a court and for this purpose to communicate in confidence with his legal advisor. Subject to
prison rules, he may communicate with journalists to bring about a better investigation for exposing
miscarriage of justice in his conviction.
A mental patient , suffering from suicidal tendency, detained in a Mental Health Hospital, escaped and
committed suicide. His daughter was allowed to sue the authorities under the Human Rights Act, 1998
(U.K.) for deprivation of right to life. Savage v. South Essex etc. , (2009) 1 All ER 1053 (HL).
(2) An alien enemy cannot sue in his own right. He cannot maintain an action unless by virtue of an Order in
Council, or unless he comes into the British dominions under a flag of truce or has a license from public
authority. In India such a person can sue if permission of the Central Government is obtained (s. 83, Civil
Procedure Code ).
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(3) Husband and Wife.— Wife could not sue her husband for a tort, nor can a husband his wife, upon the
principle that husband and wife form in the eye of the law one person. Now, under the Law Reform
(Husband and Wife) Act, 1962, each of the parties to a marriage has the like right of action in tort against
the other as if they were not married.
At common law a married woman could not be sued unless her husband was joined with her as
defendant. The liability was hers, though living with the husband, it must be enforced in an action against
her and him. Strictly speaking, the husband was not liable; his only liability was to be sued jointly with his
wife because of the rule that the wife during coverture could not be either a sole plaintiff or sole defendant.
Under the Married Women's Property Act, 1882, she can be sued alone for both ante nuptial and post-
nuptial torts, as if she were a feme sole , and her husband need not be joined with her as defendant. Any
damages or costs recovered against her in any action were payable out of her separate property. But this
Act did not affect the common law liability of a husband for his wife's post-nuptial torts and consequently a
plaintiff had to elect whether he would sue the wife alone or join her husband as co-defendant with her. In
respect of her ante-nuptial torts she could be sued alone, and sums recovered against her were to be paid
out of her separate property. But her husband was liable to the extent of the property which he had
obtained through her and to that extent he could be sued either jointly with her or alone. The husband's
liability terminated with termination of the marriage whether by death or divorce or judicial separation.
Under the Law Reform (Married Women and Tort-feasors) Act, 1935, a married woman is liable in respect
of any tort and is capable of suing and of being sued in tort as if she were a feme sole ; and the husband of
a married woman is not liable.
In India under the Married Women's Property Act, 1874, a married woman to whom the Act applies may
sue or be sued in tort as a feme sole , and any damages recovered by her become her separate property,
and any damages awarded against her are payable out of her separate property. This Act does not apply to
Hindus, Buddhists, Sikhs, Jains and Mahomedans. Married women of these communities can sue and be
sued in respect of their separate property. The husband is neither a proper nor a necessary party to the
suit. It would seem that under the Indian law, the husband is not liable for the torts of his wife. The wife may
sue her husband for torts to her separate property, and the husband may sue his wife for torts to his
property. But neither of them can sue the other for assault, defamation, or other personal wrongs.
(4) A corporation cannot maintain an action for personal wrongs, e.g. libel charging it with corruption, for it is
only the individuals, and not the corporation in its corporate capacity, who can be guilty of such an offence.
But a corporation may sue for a libel affecting its property or business.
A corporation cannot be sued, unless—
(i) the act done was within the scope of the authority of the agent employed by it; and
(ii) the act done was within the purpose of its incorporation.
It may thus be liable for assault, false imprisonment, trespass, conversion, libel, or negligence. It was at one
time thought that a corporation could not be held liable for wrongs involving malice or fraud on the ground
that to support an action for such a wrong it must be shown that the wrong-doer was actuated by a motive
in his mind and that “a corporation has no mind”. But it is now settled that a corporation is liable for wrongs
even of malice or fraud. A corporation, therefore, may be sued for malicious prosecution or for deceit. A
corporation is not liable for any tort of its agents or servants committed in the course of doing an act which
is ultra vires the corporation. A foreign corporation may be held liable for the tortious conduct of its local
subsidiary if the parent company controlled the mind and will of the subsidiary.
(5) Highway Authority.— Earlier such authorities were held not liable for their failure to keep roads and
bridges in repair. The rule was abrogated by (English) Highways (Miscellaneous Provisions) Act, 1961.
Now they are liable for damage to any person caused by an unrepaired road. They can defend themselves
by showing that they had made the road or bridge as reasonably safe as it was possible in the
circumstances. Goodes v. East Sussex County Council , (2000). The Courts in India can also follow the
principles of liability stated in the Act and did follow them to hold a highway authority liable in damages for
the collapse of a culvert carrying with it a passing motor lorry. Such authority may be held liable for failure
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to remove obstructions. Some commonwealth countries have departed from the common law rule and
have shown their inclination to apply the general principle of negligence to Highway Authorities also. Brodie
v. Singleton Shire Council, (2001).
(6) An unincorporated association can, in general, maintain an action in torts.
(7) Trade Unions.— An action against a trade union or against any members or officials thereof in respect of
any tortious act alleged to have been committed by or on behalf of the trade union is not to be entertained
by any Court in virtue of the Trade Disputes Act, 1906.
Under the Indian Trade Unions Act, 1926, a trade union registered under it may be sued in its registered
name. A registered trade union and its officers and members are exempted from liability for certain torts.
(8) An insolvent cannot sue for wrongs affecting his property but he can sue for personal wrongs, such as
assault or libel or seduction of a servant. A right of action in respect of his property passes to the Official
Assignee or Receiver for the benefit of his creditors. But a right of action in respect of personal wrongs,
such as assault, defamation, seduction etc. remains with the insolvent, and the Official Assignee or
Receiver cannot intercept the proceeds so far as they are required for the maintenance of the insolvent or
his family. But where a tort causes injury both to the person and property, the right of action will be split
and will pass, so far as it relates to property, to the Official Assignee or Receiver, and will remain in the
insolvent so far as it relates to his person.
(9) State and its officers
(10) English law.— Formerly an action for a personal wrong did not lie against the Sovereign, for the “King can
do no wrong”. The King was not answerable personally to his people. This doctrine was based on the
constitutional independence of the Crown.
The Human Rights Act, 1998 (enforced w.e.f. Oct. 2000) (UK) gives effect to the European Convention on
Human Rights. The Act makes it unlawful for any public authority to go against the convention Rights. The
aggrieved person can sue the Authority for damages. Popular Housing and Regeneration Community
Association Ltd. v. Donghue , (2001).
This law has been changed by the Crown Proceedings Act, 1947. See the text.
(11) Indian law.— If a tortious act is committed by a public servant and it gives rise to a claim for damages, the
question to ask is: was the tortious act committed by the public servant in discharge of statutory functions
which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such
public servant? If the answer is in the affirmative, the action for damages will not lie. On the other hand, if
the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue
of the delegation of any sovereign power, an action for damages will lie. In the second category of cases,
the act of such public servant is alike to an act of a servant who might have been employed by a private
individual for the same purpose. (Kasturilal v. State ). The decision in this case was that the State was not
liable for loss of goods seized in the exercise of police powers. The decision was criticised as an unnatural
glorification of the State. It was a mere question of responsibility towards citizens. Subsequent decisions
(without overruling Kasturilal ) have, therefore, attenuated the sphere of sovereign immunity. Thus
Government has been held accountable for seized goods, liable to pay compensation for unlawful
detention, liable for loss caused in the course of flood-relief operations. Welfare activities are not sovereign
functions. Statutory functions have also to be performed with due care and caution. Liability has been
imposed for death due to torture in custody and for neglect of workers health in hazardous industries and
also for denying due promotion. Common cause, A Registered Society v. Union of India , (1999); State of
A.P. v. Chella Ramakrishna Reddy , (2000).
Guidance in this respect can be taken from strasburg Jurisprudence as developed in interpreting the right to
life in Article 2 of the European Convention (cited in the text, p. 60).
Under the Constitution of India, the President and Governors of States are not answerable to any Court (1)
for the performance of powers and duties of their office, or (2) for any act done by them in the exercise of
those powers and duties.
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Public officials cannot be sued in their representative capacity for torts committed by them or by their
subordinates. Public officials may be sued in their private capacity for torts committed by them on behalf of
or with the authority of the Crown or the Government; and the order of the Crown is no defence to such an
action.
Public officials are not personally liable for the wrongs of their subordinates unless expressly authorised or
ratified by them; because the subordinates are not their servants. They are both servants of the Crown, and
there is no relation of master and servant between the superior officer and his inferior.
Where, however, the officers exceed their authority or abuse their powers, they and their respective
Departments may be held liable in damages for losses caused to the victims of the excesses. For example,
the respective Departments were held liable to the mother of a boy who lost his life in custodial torture, to a
person who was kept in detention in defiance of court order for his release and to the dependants of two
persons who became the victims of a negligent operation in a State hospital. Compensation was ordered to
be paid in the writ petition itself so as to obviate the handicaps of a separate civil suit for the purpose. As a
matter of social responsibility the State Governments do pay compensation to the victims of police firing,
etc., and they can also be held liable as such. In a writ petition under Article 32, two Central Ministers were
compelled to pay heavy compensation to the State for causing out of turn allotments.
Sovereign immunity was not allowed where two women standing at the roof of their house were injured
police bullets fired in the air for controlling a mob. State of M.P. v. Shantibai, AIR 2005 MP 66 : (2004) 1
MPHT 329 : 2005 ACJ 313.
(12) Foreign Sovereigns cannot be sued unless they themselves submit to the jurisdiction of a Court and
waive the privilege. A corporation created in one country by a combination of sovereign States would
become an independent legal creature and, therefore, such States may not be held liable for its debts.
(13) Ambassadors.— The law as regards privileges and immunities of AMBASSADORS of foreign powers,
and other diplomatic representatives are to be found in Diplomatic Privileges Act, 1964 (English).
Under s. 86 of the Civil Procedure Code, a foreign State, an Ambassador or envoy of a foreign State, a
High Commissioner of a Commonwealth country, and any member of their staff cannot be sued in any
Court except with the consent of the Central Government. The Supreme Court has suggested that such
consent should generally be granted, if the requirements of the section are satisfied.
(14) Minor.— A minor can sue for a tort against him through a next friend. The preponderance of authorities
now is that a minor can also sue for pre-natal injuries. In England there is now a statutory liability for
causing congenital injuries. A doctor is not liable for not advising abortion to the mother even if he knew
that because of an infection the child would be born deformed. A child born even after sterilisation
operation may sue if the operation was handled ineptly. The Indian Courts can take guidance from the
English statute. Unborn children who suffered from the leakage of gas in Bhopal were allowed
compensation.
In those cases of tort in which intention, knowledge, malice, or some other condition of the mind of the
wrongdoer, forms an essential ingredient of the civil injury complained of, extreme youth may afford a
defence which would not be open to an adult wrongdoer or to an infant wrongdoer of a more advanced age.
If there is a sufficient maturity or understanding in an infant, he will be liable for wrongs of commission as
well as of omission. Where (Mullin v. Richards , (1998)) two girls of 15 years were playing and one of them
happened to be injured in her eyes, the court did not hold the other liable and cited the following passage
from an Australian case : “The question for the judge is not whether action of the defendant were such as
an ordinarily prudent and reasonable adult in the defendant's situation would have realised; it is whether an
ordinarily prudent and reasonable 15 year old school girl in the defendant's situation would have realised.”
(McHale v. Watson, (1966)). But if the tort arise out of a contract into which a person is incapable of
entering by reason of infancy, such person cannot be held liable even for the tort (Jennings v. Rundall , the
mare overriding case). He cannot be made liable for a wrong committed in the course of the performance of
the contract by changing the action to one of tort. Otherwise, there would be an end of that protection which
the law affords to infants. But he would be liable where the tort is merely connected with, but does not
properly arise out of, the performance of a de facto contract (Burnard v. Haggis , the mare jumping case).
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An infant cannot take advantage of his own fraud, i.e. he may be compelled to specific restitution, where it
is possible under the Specific Relief Act, 1963, of anything he has obtained by deceit.
(15) Lunatic. —Insanity does not give a general charter to commit wrongs. But a lunatic will not be liable for
those torts in which some mental condition forms an essential ingredient, unless the Court be of opinion
that he was capable of conceiving such intention. A person sane enough to be accountable under criminal
law would probably be liable for any kind of tort.
CHAPTER IV
FOREIGN TORTS
Torts committed in a foreign country are triable in Indian Courts if they fulfil the following conditions:—
1 The wrong must be of such a character that it would have been actionable if committed in this country.
2 The act must not have been justifiable by the law of the place where it was committed (Phillips v. Eyre , the
Jamaica Governor's case). The term “justifiable” has reference to legal justification, and an act or neglect
which is neither actionable nor punishable cannot be said to be otherwise than justifiable within the
meaning of the rule. It is not necessary that the wrong should have been actionable where committed, it is
sufficient if it was unlawful. It is immaterial to consider the remedy that lies by the law of that country.
3 The law of the country with which the wrongful action has the most significant connection should be applied
both in regard to cause of action and in regard to the measure of damages. (Boys v. Chaplin ).
Quantification of damages for actionable heads of claim is a matter of procedure or remedy and is governed by the
law of the forum where the action is brought. [Harding v. Wealands, (2006) 4 All ER 1 (HL)].
CHAPTER V
JUSTIFICATION OF TORTS
There are certain justifications which when present will prevent an act from being regarded as wrongful. These
are—
Cases in which no liability arises even where an apparent tort has been committed are all cases of as justifications.
They are all based principally upon considerations of public policy.
(1) Act of State.—
(A ) English Law— An act of State is essentially an exercise of sovereign power, and hence cannot be
challenged, controlled or interfered with by Municipal Courts. Its sanction is not that of law, but that of
sovereign power, and Municipal Courts must accept it without question. This doctrine applies only to
acts affecting foreigners. As between the Sovereign and his subjects there can be no such thing as an
act of State. An act of State in respect of which the jurisdiction of the Court is barred must be an act
which does not purport to be done under colour of legal title at all, but which must rest for its jurisdiction
on considerations of external politics and inter-State duties and rights.
(B) Indian Law— The acts of State of which Municipal Courts in India are debarred from taking cognizance
are done in the exercise of sovereign powers, which do not profess to be justified by the municipal law.
In cases arising out of the annexation of the territories of Goa, Daman and Diu, the Supreme Court
ruled that annexation is an act of the State by whatever method it may take place and however long
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may be the period. The Supreme Court added that the act of State would reach its vanishing point after
the people of the territory become subjects of the Government. (See cases in the text). Acts of the
executive Government in the name of the President in the normal course of administration, (e.g.
allotment of petrol outlets from discretionary quota of a Minister) are not acts of State and are open to
judicial scrutiny and their authority, validity and correctness can be examined by the court. [Common
Cause, a Registered Society v. Union of India , (1999)].
(2) Judicial acts .—
(A) English Law.— No action lies against a Judge for acts done or words spoken by him in the exercise of
his office. This provision of law is for the benefit of the public whose interest it is that Judges should be
at liberty to exercise their functions with independence and without fear of consequences. Even if the
act done was outside the jurisdiction of the Judge he is not liable un less he knew or ought to have
known of his want of jurisdiction. In the case of a Judge of a Superior Court, the plaintiff has to show
that he acted without jurisdiction: but in the case of a Judge of an inferior Court, the burden of proof lies
on the Judge to show that he had jurisdiction. Persons functioning as arbitrators or quasi- arbitrators
also enjoy the same immunity.
The same immunity is extended to members of naval and military Courts- Martial and Courts of inquiry,
arbitrators, jurymen, and coroners.
(B) Indian Law.— Under the Judicial Officers’ Protection Act, 1850, no Judge, Magistrate, or other person
acting judicially, is liable to be sued for an act done by him in the discharge of his judicial duty, whether
or not within the limits of his jurisdiction, provided that he, at the time, in good faith believed himself to
have jurisdiction to do or order the act complained of. The Act also protects those acting under judicial
orders, but not in respect of their ministerial acts. The Act is wider in scope than English common law.
The expression “other persons acting judicially” would cover revenue officers, tribunals, and other
authorities of the same nature. The Judges Protection Act, 1985 now provides better and additional
protection to judges and others acting judicially against civil or criminal proceedings.
(3) Executive acts.— Valid orders of a public authority form a good defence in an action on a tort committed by
its officers in executing them, e.g. orders of a Court of Justice. But if the process is not fair and regular, or if
its contents indicate a want of jurisdiction in the Court issuing it, the officer will be responsible. If an officer
arrests or takes the goods of a wrong person, he is liable. If he is misled by a party, he is not.
Under Act XVIII of 1850 (The Judicial Officers’ Protection Act) no officer of any Court or other person bound
to execute the lawful warrants or orders of a Judge, Magistrate, or other person acting judicially, is liable to
be sued for the execution of any warrant or order.
Police officers are protected in the performance of their executive duties by express legislative enactments.
(4) Administrative acts.— These are acts of universities, colleges, committees, etc. Persons enjoying quasi-
judicial powers, are protected from civil liability, if they observe the rules of natural justice, and the statutory
rules prescribing their course of action. The rules of natural justice are that a man cannot be removed from
office or membership unless the persons exercising such powers have—
(1) acted in good faith;
(2) given him a fair and sufficient notice of his offence; and
(3) given him an opportunity of defending himself.
No liability in negligence arises even if the officers misconstrue the statute under which they are acting.
Public authorities even acting within the defined limits of their powers must not conduct themselves arbitrarily or
tyrannically. If they abuse their powers, the Court may hold them responsible for the consequences.
The above principles apply in the case of expulsion of a member from a club or a caste.
(5) Parental and quasi- parental authority.— Parents or persons in loco parentis may inflict moderate and
reasonable corporal punishment on children. The authority of the schoolmaster is the same as that of
parent, and is not limited to acts committed by the pupil upon the premises of the School but extends to
acts done by such pupil while on the way to and from school. This authority of a schoolmaster does not
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seem to be consistent with the changing general outlook towards methods of correction and respect for
human rights. (Street, Law of Torts, 95, 96).
(6) Authorities of necessity.— These are powers arising from necessity, e.g. disciplinary powers of the
master of vessel on the high seas.
(7) Statutory authority.— If the Legislature authorizes the doing of an act, no action can be maintained for that
act. The person injured by such an act is without a remedy except so far as the Legislature has provided
for compensation (Vaughan v. Taff Vale Ry., the engine case). Where the Legislature directs that a thing
shall at all events be done, the right of action is taken away. If the terms of a statute are not imperative but
permissive, the powers conferred by it should be exercised in strict conformity with private rights. Where a
discretion is given it must be exercised with due regard to common rights of others (Metropolitan Asylum
District Board v. Hill , the small-pox hospital case). The House of Lords restated the relevant principles in
Allen v. Gulf Oil Refining Ltd. , and laid down that where an act authorises industrial installations, such as a
refinery, which cause nuisance of pollution, the level of it must not exceed what is absolutely necessary in
the process of industrialisation of that kind.
As regards statutory powers in general, the statute will be construed strictly, and, in cases of doubt, in
favour of the subject.
(8) Inevitable accident.— An ‘inevitable accident’ is that which could not possibly be prevented by the exercise
of ordinary care, caution and skill. It means an accident physically unavoidable. The accident should not
have been capable of being prevented by ordinary skill and diligence. “An accident is one out of the
ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence.”
If in the prosecution of a lawful act, casualty, purely accidental, arises, no action can be supported for any
injury arising therefrom (Stanley v. Powell , the pellet case). But if the act done is unlawful, an action lies.
Inevitable accident, in any form whatsoever, is no defence to a claim based on the rule of strict liability as
laid down in M.C. Mehta v. Union of India .
(9) Exercise of common right. —The exercise of ordinary rights for a lawful purpose and in a lawful manner is
no wrong even if it causes damage. It will be damnum sine injuria . Thus, the disturbance or removal of the
soil in a man's own land, though it is the means (by stopping percolation) of drying up his neighbour's
spring or well, does not constitute the invasion of legal right, and will not sustain an action (Chasemore v.
Richards: Acton v. Blundell ). Fair competition is in itself no ground of action. Right of competition exists
even when the means adopted are unfair. Under-selling is not a wrong.
(10) Leave and license “Volenti non fit injuria”.— A man cannot complain of harm caused by the chances to
which he has exposed himself of his free will— volenti non fit injuria . One who has invited or assented to
an act being done towards him cannot, when he suffers from it, complain of it as a wrong. It is necessary to
prove that the person injured knew of the danger, appreciated it, and voluntarily took the risk.
The maxim applies, in the first place, to intentional acts which would otherwise be tortious. Thus, the
surgeon who amputates a limb, and the football player, boxer, or fencer are protected.
In United States it is the ‘reasonably prudent patient’ test evolved in Canterbury v. Space, (464 Fd 772 :
150 US App DC 263 (1972). The Supreme Court of India in Samira Kohli v. Prabha Manchanda, (2008) 2
SCC 1 [LNIND 2008 SC 81] has laid down principles which should be applicable in Indian conditions.
No consent can legalize an unlawful act, e.g. a kicking match, or a duel.
The maxim applies, in the second place, to consent to run the risk of harm which would otherwise be
actionable. The master on this ground is not liable for injury suffered by a servant who has undertaken
service knowing the risk incidental thereto. The maxim is volenti non fit injuria and not scienti non fit injuria .
Knowledge is not a conclusive defence in itself. But when it is a knowledge under circumstances that leave
no inference open but one, namely, that the risk has been voluntarily encountered, the defence is complete.
It is necessary to prove that the person injured knew of the risk and voluntarily assumed it.
There are limitations to the application of this maxim—
(1) No consent, no leave or license, can legalise an unlawful act, e.g. fighting with naked fists, a kicking
match, or a duel with swords.
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(2) The maxim has no validity against an action based on a breach of statutory duty. Where a prisoner with
known suicidal tendency committed suicide while in police custody because the police failed to take
reasonable precautions for preventing him from doing so, this defence was held to be not available.
[Reeves v. Commr. of Police , (1999)]. Corr v. IBC Vehicles, (2008) 2 All ER 943 (HL), suicide by
employee because of depression caused in an accident in factory due to owner's breach of duty,
widow allowed recovery under the Fatal Accident Act.
But where the breach of such statutory duty is by a co-employee of the plaintiff, and the plaintiff
knowingly accepts the risk flowing from such breach, the employer cannot be held liable and the maxim
will apply.
(3) The maxim does not apply to cases of rescuing, where the plaintiff has, under an exigency caused by
the defendant's wrongful conduct, consciously and deliberately faced a risk, even of death, to rescue
another from imminent danger of personal injury or death, whether the person endangered is one to
whom he owes a duty of protection, or a member of his family, or is a mere stranger to whom he owes
no such special duty (Haynes v. Harwood , the constable case).
(4) If by a person's wrongful act another is placed in a situation which leaves him only a choice between
two perilous courses, the former is liable for the consequences of whichever course the latter takes;
the latter's knowledge of the risk run by him in taking that course is immaterial. This is more commonly
stated in this way that the maxim does not apply to cases of negligence unless there is an agreement
to take even negligence in its stride.
(11) Necessity.— There are three situations in which the defence of necessity applies, (1) cases of public
necessity, (2) cases of private necessity, and (3) cases in which assistance is given to a third person
without his consent. There are many cases in which individuals sustain an injury for which the law affords
no action, as where private houses are pulled down to stop a fire, or goods cast overboard to save a ship
or the lives of those on board. The welfare of the people is the supreme law— salus populi suprema lex —
individual welfare shall, in cases of necessity, yield to that of community; and a person's property, liberty
and life may be placed in jeopardy or even sacrificed for public good. The Supreme Court has accepted the
observations of English Judges that hunger and homelessness do not constitute a necessity. If people
could be permitted to lift food from shops on account of hunger or commit trespass or encroachment
because of homelessness nobody's business or home would be safe. (Olga Tellis v. Bom M.C. ). The
Municipality is not compellable to provide compensation or alternative accommodation before removing
pavement dwellings, but a long established colony may not be permitted to be removed without alternative
housing.
(12) Private defence.— Every person has a right to defend his own person, property, or possession, against
an unlawful harm. This may be done for protecting one's wife or husband, a parent or child, a master or
servant. The force employed must not be out of proportion to the apparent urgency of the occasion. The
necessity must be proved.
Every person is entitled to protect his property. But he cannot for this purpose do an act which is injurious to
his neighbour.
An animal may be shot where it is posing an imminent danger but not when there is no such danger or the
danger has ceased.
(13) Plaintiff a wrongdoer.— A person is not disabled from recovering damages for an injury caused to him by
reason of himself being a wrongdoer, unless some unlawful act or conduct on his own part is connected
with the harm suffered by him as part of the same transaction. A trespasser is liable to an action for
theinjury which he does; but he does not forfeit his right of action for an injury sustained (Bird v. Holbrook ,
the Spring-gun case).
Persons engaging in an unlawful joint act may not sue for any injury caused by one to the other unless it is
outside their common pursuit. The conduct and the relative moral culpability of the parties may be relevant
in determining whether or not ex turpi causa fails to be applied. But occasionally the fall out of a joint
unlawful enterprize makes it difficult to find out the respective faults of the parties.
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(14) Slight harm.— The law does not take account of trifles— deminimis non curat lex . Nothing is a wrong of
which a person of ordinary sense and temper would not complain. This principle is also recognized in the
Indian Penal Code (s. 95). The maxim does not apply where there is an injury to a legal right.
CHAPTER VI
DEATH IN RELATION TO TORT
Common law.— At common law if an injury were done either to the person or property of another, for which
damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong
was done. This was embodied in the maxim actio personalis moritur cum persona (a personal right of action dies
with the person). A personal action did not survive on the death, either of the person who sustained, or of the
person who committed, the wrong.
Statutory modifications. —
(A) English Law.— The Law Reform (Miscellaneous Provisions) Act, 1934, has virtually abolished this maxim
except for certain statutory exceptions.
(I) Death of the person wronged .
At common law in the case of the death of the person wronged , his executors or administrators could
not maintain an action—
(1) for personal wrongs committed during his lifetime, such as assault, libel, false imprisonment,
negligence not causing his death, seduction; or
(2) for trespass to his goods and chattels or if damage was done to his real property in his lifetime, or
(3) for damages for his death. “In a civil Court, the death of a human being could not be complained of
as an injury.” (Baker v. Bolton ). But if there is an interval between the wrongful act and death,
damages may be recovered for loss of society or services up to the time of death. If a person dies
owing to the injury caused by the negligent act of the defendant, his legal representative is entitled
to claim damages for the benefit of his estate for the loss of the deceased's expectation of life
(Rose v. Ford , the motor collision case).
Statutory exceptions. —Under the Law Reform (Miscellaneous Provisions) Act, 1934, on the death of
any person all causes of action vested in him shall survive for the benefit of his estate; except actions
for (1) defamation, (2) seduction, (3) inducing one spouse to leave or remain apart from the other, and
(4) claim for damages for adultery (s. 1(1)). Where a cause of action so survives (1) the damages
recoverable shall not include exemplary damages; (2) the damages, where death is caused, shall be
calculated without reference to any loss or gain to his estate consequent on his death, except that a
sum in respect of funeral expenses may be included (s. 1(2)).
The rights conferred by this Act are in addition to the rights conferred by the Fatal Accidents Act s,
1846 to 1908, or the Carriage by Air Act, 1961. As regards the quantum of damages awarded for the
shortening of life, see p. 125.
(b) The Fatal Accidents Act (Lord Campbell's Act) enables the executor or administrator of a person whose
death is caused by the wrongful act, neglect, or default of another, to bring an action for the benefit of
the wife, husband, or child, of the deceased (9 & 10 Vic., c. 93, s. 1 ).
The parties for whose benefit this right exists should show some appreciable pecuniary damage at the
time or in prospective .
In the assessment of damages under the Fatal Accidents Act, damages awarded under the Law
Reform (Miscellaneous Provisions) Act, 1934, must be taken into account. There are two distinct and
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separate causes of action: the dependents’ claim for financial loss and claim of the deceased for injury,
loss or damage if he had survived.
(c) Under the different National Insurance Acts, all persons employed in insurable employment must be
insured against personal injury caused by accident arising out of and in the course of such
employment.
(B ) Indian Law. —Under s. 306 of the Indian Succession Act, 1925, all rights to prosecute any action existing in
favour of a deceased person survive to his executors or administrators, except an action for—
(1) defamation;
(2) assault, as defined in the Indian Penal Code; and
(3) personal injuries not causing the death of the party.
Hence, the application of the maxim actio personalis moritur cum persona is now confined only to the
above three cases.
An action for malicious prosecution survives to the representatives of a deceased plaintiff, according to the
Calcutta and Rangoon High Courts; it does not so survive, according to the High Courts of Madras,
Bombay, Allahabad and Patna.
Before the Indian Succession Act, 1865, (repealed by the Act of 1925) was passed, there were two
statutory exceptions to the maxim—
1 In cases of wrongs which occasioned pecuniary loss to an estate of the deceased person, an action could
be maintained, under the Legal Representatives’ Suits Act (XII of 1855), provided the wrong was
committed within one year before his death and the action was brought within one year after his death.
2 Where a person was killed by the wrongful act or neglect of another, an action could be maintained,
under the Fatal Accidents Act (XIII of 1855), for the benefit of the widow, husband, parent or child, of
the deceased by his legal representatives, provided the deceased could have sued for the wrongful act
if death had not been caused, and the suit was brought within two years from the date of the death of
the deceased. (Limitation Act, 1963, Art. 83).
Where a guest died some thirteen years after he was injured in the hotel swimming pool, leaving behind a
pending proceeding for injuries, it was held that the legal heirs had the right to continue the proceeding.
[Klaus Mittelbachert v. East India Hotels Ltd. , (1997)].
(II) Death of the Wrongdoer
At common law no action can be maintained against the executors or administrators of a wrongdoer, for
torts such as trespass to goods, false imprisonment, assault and battery, malicious prosecution, slander,
fraud, or negligence. But where property, or the proceeds or value of property, belonging to another, have
been appropriated by the wrongdoer and added to his own estate or moneys, the estate will be liable to the
extent to which it has been augmented (Phillips v. Homfray ).
Statutory exceptions.— Under the Law Reform (Miscellaneous Provisions) Act, 1934, on the death of any
person, all causes of action subsisting against him shall survive against his estate: except actions for (1)
defamation, (2) seduction, (3) inducing one spouse to leave or remain apart from the other, and (4) claim
for damages for adultery (s. 1(1)). No proceedings are maintainable unless—
(1) proceedings were pending against the deceased at the date of his death; or
(2) the cause of action arose not earlier than six months before his death and proceedings are taken not
later than six months after his personal representative took out representation (s. 1(3)).
Where damage has been suffered by reason of any act or omission in respect of which an action would
have subsisted against any person if he had not died before or at the same time as the damage was
suffered, there shall be deemed to have been subsisting against him before his death such action as would
have subsisted if he had died after the damage was suffered (s. 1(4)).
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Indian Law.— Unders. 306 of the Indian Succession Act, all rights of action existing against a person at the
time of his decease survive against his executors or administrators, except an action for—
(1) defamation;
(2) assault, as defined in the Indian Penal Code; and
(3) personal injuries not causing the death of the party.
Under the Legal Representatives’ Suits Act, 1855, an action may be maintained against the executors or
administrators or representatives of any deceased person for any wrong committed by him for which he
would have been subject to an action. The wrong should have been committed within one year before his
death and the action should have been brought within two years after the committing of the wrong.
(Limitation Act, 1963, Art 83).
The maxim has also no application to suits for eviction under the Rent Control Act s.
Damages Recoverable.—
(A) For Loss of Dependency.— The main purpose of the Fatal Accidents Act is to provide compensation to
the dependents of the deceased. The cause of action arises only if there was some fault on the part of
the defendant and there was no fault on the part of the deceased. If he was partly at fault,
compensation is proportionately reduced. The only guidance in the Act about the amount of
compensation is the amount of loss caused to the dependants. Damages are accordingly assessed
according to the reasonable expectation of pecuniary benefit as of right or otherwise from the
continuance of life. Other things are not counted, such as feelings or loss of company. The 1982
Amendment of the English Act now provides for other things such as bereavement to husband or wife
and, in case of minor, to parents. There has been no such amendment in the Indian Act. The Courts of
Common Law have also been of their own allowing compensation for nervous shock caused by the
death. Even if the deceased was not earning anything at the time of his demise, compensation is
allowed on the basis of future expectations. Since future expectations are likely to be an uncertain
road, the courts of the highest order have been trying all along to put the assessment on some fixed
scientific criteria.
The income of the deceased should be taken to include, besides his salary, all perks and facilities,
provided by the employer for the benefit of the entire family [National Insurance Co. Ltd. v. Indira
Srivastava, (2008) 2 SCC 263.]
Examples of the same may be seen in the text. It has been held in a number of cases that the receipt of
insurance, provident fund, pension or gratuity must altogether be excluded in the award of damages.
Provisions of the Motor Vehicles Act, 1939, give more latitude to the courts than the Fatal Accidents
Act.
For an example of amounts that may be awarded, see the Supreme Court decision in Lata Wadhwa v.
State of Bihar , (2001). It was held, among other things, that a mere speculative possibility of benefit is
not sufficient. The value of the services of a housewife was estimated at Rs. 36,000 per annum. The
question whether there exists a reasonable expectation of pecuniary benefit is always a mixed question
of law and fact. M.S. Grewal v. Deep Chand , (2001).
After the decision of the Supreme Court in Suramma Thomas, the multiplicand multiplier method
became well established in Indian law. The choice of the multiplier is determined by two factors namely
the rate of interest appropriate to a stable economy and the age of deceased or the claimant whichever
is higher for the calculation as to what capital sum, if invested at a rate of interest appropriate to a
stable currency would yield the multiplicand by way of annual interest for the period for which the
dependency is expected to last and would also be consumed up by the end of that period. AIR 1994
SC 1631 : (1994) 2 SCC 176; Oriental Ins. Co. Ltd. v. Jasuben, (2008) 4 SCC 162 [LNIND 2008 SC
342] ; United India Insurance Co. Ltd. v. Bindu, (2009) 3 SCC 705 [LNIND 2009 SC 236] : (2009) 2
SCC (Cri) 186.
The Supreme Court has also allowed full compensation payable under section 140 of the M.V. Act,
1988 (no fault liability) to a legal representative (married daughter) who was not dependant on the
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victim, her father, but was maintained by her husband. Smt. Manjari Bera v. Oriental Insurance Co.
Ltd., AIR 2007 SC 1474.
Deduction of family pension received by the dependants of the deceased was held to be impermissible.
Lal Dei v. Himachal Road Transport, (2007) 8 SCC 319 [LNIND 2007 SC 1519] : (2007) 3 SCC (Cr)
550.
(B) For the Benefit of Estate.— By abolishing the maxim actio personalis moritur cum persona , the Law
Reform (Miscellaneous Provisions) Act, 1934, enables the damages suffered by the deceased before
his death under the heads loss of earnings, pain and suffering and loss of expectation of life to be
recovered for the benefit of his estate. This cause of action survives death. The dependants’ cause of
action under the Fatal Accidents Act is independent and since the 1982 amendment there is no
deduction either way for any amount awarded to the one or the other. The Indian Fatal Accidents Act
provides for two independent causes of action, one for the dependants and the other for the estate.
Damages are awarded under this head for loss of earnings and profits up to the date of death, medical
and hospital expenses, pain and suffering, loss of expectation of life, funeral expenses and loss of
earnings of lost years.
Damages assessed must be so much that the contemporary society would think that the wrongdoer
has done the right thing in paying the due amount. The amount awarded must not be niggardly since
the law values life and limb in generous scales, i.e., must be fair and reasonable by accepted legal
standards. The Supreme Court observed in the Susamma case that the multiplier method is the
accepted method of assuring a just compensation which will make for uniformity and certainty of the
awards. The court disapproved the contrary High Court decisions. General Manager, Ker SEB v.
Susamma Thomas .
The House of Lards (Wells v. Weels , (1998)), in personal injury cases recently accepted the
recommendation of the Law Commission that the multiplier should be fixed with reference to the return
of Index Linked Government Stock (ILGS) which yield a net return of 3% and not, as was then the
current practice, with reference to interest rate of 4 to 5 percent. It was also held that actuarial tables
should be used as the starting point in settling the multiplier. It is expected that the same view will be
taken in fatal accident cases. It is yet to be seen as to how the Indian courts especially the Supreme
Court will react to this decision of the House of Lords. ILGS were first introduced in U.K. in 1981. The
return of income and capital on ILGS are fully protected against inflation. Thus the purchaser of 100 of
ILGS with a maturity date of 2020 knows that his investment will then be worth 100 + x% of 100, where
x represents the percentage increase in the retail price between the date of issue and date of maturity.
In Hellen C. Rebello v. Maharashtra State Road Transport Corporation , (1999) in which the Supreme
Court holds that in determining the question of compensation under the M.V. Act the court has a wider
discretion as it has to determine just compensation and a question relating to deduction has to be
approached from that angle. It was further held that any pecuniary gain which is not directly related to
accidental death and which the claimant would have received on account of any form of death,
accidental or otherwise, is not pecuniary advantage deductible in computation of just compensation. On
this reasoning the amount received by the claimant on the life insurance of the deceased was held not
to be deductible from the compensation computed under the MV Act.
As to the interest rate, see the text at p. 221.
CHAPTER VII
DISCHARGE OF TORTS
(1) Waiver by election.— If a person has several remedies for the same wrong but chooses only one of them,
the other remedies are taken to have been waived. Thus, if the defendant obtains the plaintiff's money by
fraud or some other wrong, the plaintiff may sue him in tort or for money had and received. Similarly, if a
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man is wrongfully deprived of his goods, which are afterwards sold, he may bring an action for damages for
the tort, or he may sue for the price received by the defendant. In such cases the plaintiff must make his
election, and once the election is made and judgment obtained, he cannot afterwards bring another action.
In the case of a bribed agent, the plaintiff has the option to recover either the amount of bribe or the loss
caused by the act, but not both.
Among torts which can be waived are conversion, trespass to land or goods, deceit, action for extorting
money by threats. There are torts to which process of waiver cannot be applied, e.g. , defamation, assault.
(2) Accord and satisfaction.— An accord is an agreement between two or more persons, one of whom has a
right of action against the other, that the latter shall render and the former accept something in satisfaction
of the right of action. When the agreement is executed, and satisfaction has been made, the arrangement
is called accord and satisfaction, and operates as a bar to the right of action.
An accord without satisfaction is not a bar. Compromise of a criminal case is not a bar to a civil claim
unless there is an agreement to that effect.
(3) Release.— A release is the giving up or discharging of the right of action which a person has or may have
against another person. A covenant not to sue is a release. A covenant not to sue any one or the other of
the joint tortfeasors is not a release of the others.
(4) Acquiescence.— Where a person who knows that he is entitled to enforce a right, neglects to do so for a
length of time, the other party may fairly infer that he has waived or abandoned his right. It is an instance of
estoppel. The doctrine is founded upon conduct with a knowledge of one's legal rights.
(5) Judgment recovered.— If a wrong is done, and a judgment is recovered in a Court, the judgment is a bar
to the original cause of action. No fresh suit can be brought in respect of it. The person injured cannot bring
a second action for the same wrong even though it is subsequently found that the damage was much
greater than was anticipated when the action was brought. If in an assault a person sustains a broken arm
and a broken leg, he must sue for both the injuries in the same action.
Where the injury is of a continuing nature, the bringing of an action and the recovery of damages for the
perpetration of the original wrong do not prevent the injured party from bringing a fresh action for the
continuance of the injury (Darley Main Colliery Co. v. Mitchell , the subsidence case).
(6) Limitation.— Actions of torts must be brought within the statutory period, otherwise the right to sue is
barred. (See Limitation Act, 1963).
CHAPTER VIII
LIABILITY FOR WRONGS COMMITTED BY OTHERS
A person may be liable in respect of wrongful acts of another in three ways:

I. As having ratified the particular act.
II. As having stood in some relation with the other so as to entail responsibility for torts committed by that
person.
III. As having abetted tortious acts committed by others.
I. Liability by ratification.— An act done for another by a person not assuming to act for himself but for such
other person though without any precedent authority whatever becomes the act of the principal if
subsequently ratified by him. The principal becomes bound by the act, whether it be to his detriment or
advantage, to the same extent as if the act was with all its consequences done with his previous authority.
Ratification of a tort by a principal will not, however, free the agent from his responsibility to a third person.
But ratification may avoid instead of creating a liability. Omnis ratihabitio retrotrahitur et mandato priori
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aequiparatur (every ratification is retrospective and is of equal force with a previous command). It should
be noted that—
(1) Only such acts bind a principal by subsequent ratification as were done at the time on his behalf. What
is done by a person on his own account cannot be effectively adopted by another.
(2) The person ratifying must have full knowledge of its tortious character.
(3) An act which is illegal and void is incapable of ratification.
(4) The principal should have been competent himself to do the act at the time.
2. Liability by relation.— Liability for a wrongful act arises from the relation existing between—
(A) Master and Servant
(B) Owner and Independent Contractor
(C) Principal and Agent
(D) Company and Director
(E) Firm and Partner
(F) Guardian and Ward
1
(A) (i) Master and servant. —The traditional view of liability for wrongs of the servant, as distinguished
from an independent contractor, was that the master controlled the working of his servant. But the
Courts are now of the view that control is not decisive in itself. (Dharangadhara Chemical Works Ltd. v.
State of Sau .). All the features of the relationship have to be examined before deciding upon the
question of master's liability. Hospital authorities are now held liable for the negligence of their medical
staff though they have very little control over them.
In certain cases, however, control test continues to play its role. For example, in the case of a servant,
of two masters, the one in actual control would be held liable. A situation of this kind arises when there
is lending of servants.
Control test is also applicable when a chattel has been lent. The person who was controlling the use of
the chattel at the moment would be liable. This may be changed by a statute. For example, the Motor
Vehicles Act would like to hold the owner and insurer of the vehicle liable though it may at the crucial
moment be in the control of someone else.
The relationship between master and servant gives rise to the liability—
(1) of a master to third persons
(2) of a servant to third persons
(3) of a master to his servant
(4) of a servant to his master.
2 Master's liability to others. —A master is liable to third persons for every such wrong of his servant as is
committed in the course of employment, though no express command or privity of the master be proved
(Barwick v. English Joint Stock Bank ). The wrongful act need not be for the master's benefit (Lloyd v.
Grace, Smith & Co .). For torts committed in any matter beyond the scope of the employment, the master
is liable only if he has expressly authorized, or subsequently ratified, them. If the true character of the act of
the servant be that it was an act of his own, and done in order to effect a purpose of his own, the master is
not liable for it. To make the master liable the act of the servant should be so connected with the acts
which have been authorised by the master that it can be regarded as a mode of doing that which the
servant has been authorised to do. A servant in an emergency has implied authority to protect his master's
property. He also gets implied authority from the exigencies of the situation. The Courts have to see the
totality of circumstances.
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A master becomes liable for the wrong done by a servant in the course of employment in the following
ways:—
(i) The wrong may be the natural consequence of something being done by a servant with ordinary care in
the execution of the master's specific orders (Gregory v. Piper , the rubbish case). The master is liable
for the natural consequences of his orders, even though he wished to avoid them and desired his
servant to avoid them.
(ii) The wrong may be due to the servant's want of care in the carrying out of the work or business in which
he is employed (Whatman v. Pearson , the unattended horse case). But if a servant acts in such
disobedience to the instructions of his master as to be altogether outside the course of his duty or in
such a way as to be on a frolic of his own, then the master is not liable (Williams v. Jones , the pipe
case; Storey v. Ashton , the car-man's deviation case). Whether the course of employment begins from
the moment the employee leaves home or only on reaching his place of work depends on a number of
factors which were summarised in terms of practical propositions by the HOUSE OF LORDS in Smith
v. Stages .
(iii) The servant's wrong may consist in excess or mistaken execution of a lawful authority. Here it must be
shown—
(a) that the servant intended to do on behalf of his master something of a kind which he was in fact
authorized to do; and
(b) that the act, if done in a proper manner, or under the circumstances erroneously supposed by the
servant to exist, would have been lawful (Bayley v. M. & S. M. Ry ., the pulling out of carriage case;
Gaff v. G. N. Ry . the mistaken arrest case).
But if the servant does some tortious act which is outside the scope of his authority, or which his master
would have had no power to do himself, and has not specially authorized, the master will not be
answerable for it (Poulton v. L.N.S.W. Ry . the horse fare case; Edwards v. L. & N. W. Ry ., the theft
case; General Engineering Services Ltd. v. Kingston , fire-brigade deliberately prolonging the journey to
premises to pressurise the employer for other purposes). For acts which the master has neither
authorised in kind nor sanctioned in particular he is not chargeable.
(iv) A wilful wrong such as assault, provided the act is done on the master's behalf and with the intention of
serving his purpose (Limpus v. London General Omnibus Co. , the omnibus upsetting case).
Liability as cost of conduct of enterprise.— In the context of a courier company which had employed by
written contract for service a number of persons as bicycle couriers who owned their own bicycles and bore
the expenses of running them but who as their uniforms bore the logo of the company, the High Court of
Australia in holding the company vicariously liable for an injury caused by the negligence of a bicycle
courier observed : “In general, under contemporary Australian conditions, the conduct by the defendant of
an enterprise in which persons are identified as representing that enterprise should carry an obligation to
third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of
the conduct of that enterprise.” Hollis v. Vabu , (2001).
Lending of servants.— Where an employee is loaned by the employer to another person, the controller of
the working of the employee at the time of a mishap would be vicariously liable. Rajasthan State Road
Transport Corpn. v. Kailash Nath Kothari , (1997).
Joint tortfeasors where only one employee.— The employer would be liable only if the tort committed by
both of them as a whole falls within the course of employment. Credit Exonnais Bank Nederland N.V. v.
Export Credit Guarantee Deptt. , (1999).
Effect of prohibition.— The mere fact of prohibition does not throw an act beyond the course of
employment. It depends upon whether the prohibition limits the sphere of employment or whether it merely
affects the mode of working. Great difficulties have been experienced in connection with persons coming
into a master's vehicle while it is with his driver. Here also Courts have gone by the fact whether it was in
the course of employment to take in a stranger. If so, liability follows even if the master had prohibited the
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entry. Taking passengers in a truck has no connection with the master's business, and is also violative of
the Motor Vehicles Act. The master will not be liable.
Fraud of servant. —A master is answerable for the fraud of his servant acting within the scope of his
authority whether the fraud is committed for the benefit of the master or for the benefit of the servant (Lloyd
v. Grace, Smith & Co. ). The master, however, is not liable where the servant has used his position to effect
the fraud but had no authority, express or implied, to do the acts in question.
Dishonest and criminal act of servant.— A master is liable for the criminal act of his servant, provided it
is done by the servant in the course of his employment and in the interest of his master. A bank was held
not liable for the act of an employee in receiving a customer's cheques and then misappropriating them. In
addition, an employer may become liable for such acts where he leads the other party, by words or
conduct, to believe that the employee is on his master's work in respect of the matter causing injury to that
other. The ‘close connection test’ has been applied in cases of sexual abuse by employees. In the
Canadian case of Bazley v. Curry , (1999) sexual abuse was committed by an employee of a children's
foundation who had been engaged as a parent-figure caring for emotionally troubled children in a children's
home. The Canadian Supreme Court held that there was sufficient connection between the acts of the
employee and the employment and, therefore, vicarious liability of the employer was established. On the
other hand in another similar case, Jacobi v. Griffiths , (1999) where sexual abuse took place in the
employee's home outside working hours and away from the club which was the principal place of
employment, the Supreme Court did not find sufficient connection between the employee's acts and the
employment from the fact that the club had provided an opportunity to the employee to establish friendship
with the children and vicarious liability was held to be not established. Both these decisions and the close
connection test applied in them were referred with approval by the House of Lords in Lister v. Hesley Hall
Ltd. , (2001). In this case the plaintiff were resident for a few years at a school for boys with emotional and
behavioural difficulties, owned by the defendants who employed a person to take care of the boys as
warden of the school's boarding house. The warden systematically sexually abused the plaintiffs while they
were resident at the school. In holding the defendants vicariously liable the court held that the defendant
had undertaken to care for the boys through the services of the warden and there was a very close
connection between his employment and his torts which were committed in the premises of the defendants
while he was busy caring for the children in performance of his duties.
Delegation of duty.— A person employed for a particular purpose, e.g. a coachman, cannot delegate his
duties to another unless there is an exceptionally urgent necessity for doing so.
A master is not responsible for the act of his servant in the following cases:
(a) Where he has temporarily lent the servant to another person. In a general sense he is the servant of the
master who lends him, but upon the practical point of responsibility when he is doing the work of and is
under the orders or control of the other employer to whom he is lent, he is, in the eye of the law, the
servant of the latter, and the latter is, in the eye of the law, his employer.
(b) Where he has been obliged by law to employ a particular person, e.g. a compulsory pilot.
(c) Where the relationship between the parties is that of a head of a Government department and an
employee in that department, e.g. , the Post-master General, there is no liability for the negligent act of
a telegraph cable-repairer.
(2) Servant's liability to others.— A servant is under no liability to third persons in respect of acts of non-
feasance or negligence in the performance of his duty, but as regards acts of misfeasance or positive
wrong he is liable. Whoever commits a wrong intentionally or ignorantly, is liable for it himself, and it is
no excuse to urge that he was acting as an agent or servant on behalf of, and for the benefit of,
another.
Master's liability to servant.— A master will be liable to his servant for injuries received by him during
service.
According to common law a master is not liable to his servant for injuries received from any ordinary risk of,
or incidental to, the service, including acts or defaults, of any other person employed in the same service
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(Priestly v. Fowler , the thigh case). A servant who undertakes the performance of services for
compensation does, as an implied part of the contract, take upon himself, as between himself and his
master, the natural risks and perils incidental to the service. There is no duty on the master to dismiss or
refuse to employ an adult person merely because the work involves some slight risk to that person. The
master is not liable if he can show that the servant injured had assented to undertake the risk of injury when
he entered the employment. But nothing short of assent would do. Mere knowledge that there was a risk is
never a sufficient defence. The maxim governing this doctrine is volenti non fit injuria and not scienti non fit
injuria . Mere knowledge of the danger will not do; there must be an assent on the part of the workman to
accept the risk with a full appreciation of its extent, to bring him within the maxim. A master is however not
liable for failing to protect or safeguard the servant from risks he could not reasonably foresee.
If the person occasioning, and the person suffering, the personal injury, were fellow-workmen engaged in a
common employment, and under a common master, such master was not responsible for the results of the
injury. This was known as the doctrine of common employment. Common employment did not necessarily
imply that both servants should be engaged in precisely the same or even similar acts. All persons engaged
under the same employer for the purposes of the same business, however different in detail those
purposes may be, were fellow-servants in a common employment. The employment must be common in
the sense that the safety of the one servant must, in the ordinary and natural course of things, depend on
the care and skill of the others. The injured servant and the servant causing injury must be engaged in
common employment and must be in the service of a common master. The rule extended even to a person
who was only temporarily or for particular occasion in the service of another; or where a person volunteered
to assist the servant of another in his work; or the workmen were not all equal in point of station or
authority; or the servant guilty of negligence was a servant of superior authority.
The doctrine of common employment was done away in England by the Law Reforms (Personal Injuries)
Act, 1948. See the text. In India also the rule was partly abolished in 1938 by the Employers’ Liability Act
and finally by the Employers’ Liability Act, 1951.
An employer is not liable where he does not have the power of selection and gives employment under
some compulsory employment scheme . Liability will, however, follow where some power of selection is
reserved in him.
The vicarious liability of the State has been discussed elsewhere.
Common law imposes the following duties on a master:—
(a) He must provide proper and competent fellow-servants.
(b) He must take reasonable care to provide proper appliances and to maintain them in a proper condition.
(c) He must take all reasonable precautions to secure the safety of his servants or workmen.
(d) He should not be guilty of personal negligence causing injury to servants.
The workman is now in a more favourable position than a stranger when he sues his employer for injuries
sustained in an ‘accident arising out of and in the course of his employment’ because the employer cannot
set up the defence of (1) volenti non fit injuria or (2) inevitable accident or (3) contributory negligence.
Under Indian Workmen's Compensation Act of 1923, if personal injury is caused to a workman by an
accident arising out of and in the course of his employment, his employer is liable to pay compensation. An
employee who was hit on a road away from the place of employment by the employer's lorry could not
recover under the Employees’ State Insurance Act read with Workmens’ Compensation Act. The result
might have been different if he had proceeded against the employer under tort law. Regional Director, ESI
Corpn. v. Francis De Costa .
Liability of employer for breach of obligations imposed by statute.—
(i) If the obligation is to do or abstain from doing a particular thing and the obligation is created for the
protection of a particular class, then a member of that class injured by the non-performance of the
obligation, is entitled to sue the employer.
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(ii) The fact that the obligation has not been performed is in itself evidence of negligence on the part of the
employer.
(iii) The employer cannot relieve himself of his obligation by saying that he has appointed reasonably
competent persons and that the breach is due to negligence on their part, nor was it open to him at
common law to plead common employment.
(iv) The employer would not be liable for negligence, in spite of breach of statutory duty, where it is
established on evidence that the accident would have occurred even if there was no such breach.
3 Master's right to recover damages from servant. —A servant is liable to his master for the consequences
of his non-feasances or wrongful omissions. If damages have been recovered from the master by reason
of the servant's negligence the master may seek indemnity from the servant. But employers generally do
not enforce this liability in the interest of industrial peace. They rather resort to insurance. Insurance
companies also do not proceed against employees under subrogated rights again in the interest of
industrial peace. Where loss to the citizen was caused by a callous officer and the State was held liable,
the Supreme Court directed that the State should recover the amount from the guilty officer. Lucknow
Devp. Auth. v. M.K. Gupta .
4 Independent contractor.— An independent contractor is one who undertakes to produce a given result,
without being in any way controlled as to the method by which he attains that result. If such independent
contractor is employed to do a lawful act, and in the course of the work he or his servants commit some
casual act of wrong or negligence, the employer is not answerable (Pickard v. Smith ). For, he who controls
the work is answerable for the workman; the remoter employer who does not control is not answerable. A
person employing another is not liable for his collateral negligence unless the relationship of master and
servant exists between them. The test whether a man employed to do work is a servant or an independent
contractor is the question—Does the employer exercise, or has he a right to exercise, control over the
workman, and direct him how to do his work? If so, the relation is that of master and servant, and not of
owner and independent contractor.
There are six exceptions to the rule that a person employing an independent contractor is not liable for his
wrongful acts:—
(1) Where the employer retains his control over the contractor, and personally interferes and makes himself
a party to the act which occasions the damage.
(2) Where the thing contracted to be done is itself illegal.
(3) Where under a legal or statutory duty it is incumbent on the employer to carry out a particular work
efficiently, and the contractor either omits or imperfectly performs such duty.
(4) Where the thing contracted to be done, although lawful in itself, is likely, in the ordinary course of
events, to damage another's property, unless preventive means are adopted, and the contractor omits,
to adopt such means, e.g. injury to neighbouring houses by pulling down property.
(5) Where the undertaking is of an extra-hazardous nature.
(6) Under the Workmen's Compensation Act, 1923, if the principal employs a contractor, such contractor's
servants are able to recover compensation from the principal, without prejudice to the principal's right
to be indemnified by the contractor if the contractor is himself liable under the Act.
2(C) Principal and agent.— To make a principal responsible for a wrongful act of his agent it is necessary to
show—
(1) that it was committed by the agent in the course of his employment, although the principal did not
authorize, or justify, or participate in the act, or even if he forbade it or disapproved of it;
(2) that, if the act was beyond the scope of the agency, it must have been expressly authorized by the
principal or subsequently ratified by him.
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The liability of a principal for the wrongs of his agent is a joint and several liability with the agent. The
maxim respondent superior (let the principal be liable) does not render a principal liable for the wrongs of
his agent, if the agent has been dealt with as a principal.
Even a friend or a relative of the owner of a car can be said to be his agent when he drives the car at the
request of the owner even though the act might have been done gratuitously. The test is not of physical
control but of the right to control.
Agent's liability.— Agents are classified as (a) private, and (b) public.
(a) Private agents are personally liable to third persons for acts of misfeasance or positive wrongs. For acts
of non-feasance or mere omissions of duty, they are not liable to third persons but solely to their
principals.
(b) Public officers are not responsible for the neglect or misconduct of servants employed by them. Those
who commit the wrongful act are liable. They cannot escape their liability on the ground that they acted
in obedience to the order of a superior officer or the head of a Government department. The relation
between a superior and a subordinate officer is not that of a master and servant. Both of them are
fellow-servants of the Government. Where the act is wholly disassociated from the sovereign powers,
the State will be as much liable for a tortious act committed by its servant within the scope of his
employment as any other employer.
2(D) Company and directors. —Companies are liable for torts committed by their servants in the course of
their employment. But the wrongful act complained of should be intra vires and not ultra vires , and should
be done for the company. Directors are personally responsible for any tort which they may themselves
commit or direct others to commit, although it may be for the benefit of the company.
2(E) Firm and partner. —The relation of partners inter se is that of principal and agent, and each partner is,
therefore, liable to third persons for the neglect or fraud his the fellow-partner. The neglect or fraud
complained of must have been committed in the ordinary course of the partnership business; and while a
partner is acting within the scope of his authority, his co-partner's complete innocence is irrelevant.
Whether the act of a partner is one done in the course of the business of the firm is a question to be
determined on the same considerations as those which determine the responsibility of a master for the acts
of his servants.
2(F) Guardian and Ward.— Guardians are not personally liable for torts committed by their wards. But they
can sue for personal injuries to minors under their charge on their behalf.
1 Liability by abetment.— In actions for wrongs, those who abet the tortious acts are equally liable with those
who commit them.
CHAPTER IX
REMEDIES
Remedies for torts are of two kinds: judicial and extra-judicial.

(1) Judicial remedies are those which are afforded by the legal system, viz., (I) awarding of damages; (II)
granting of injunction; and (III) restitution of property.
(2) Extra-judicial remedies are those which are available to a party in certain cases of torts by his own acts
alone, viz. expulsion of a trespasser, re-entry on land, recaption of goods, distress damage feasant ,
abatement of nuisance.
(I) Damages—
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1(A) Introduction .—Damages are the pecuniary compensation which the law awards to a person for the
injury he has sustained by the wrongful act of another. They are designed not only as a compensation
to the injured person, but likewise as a punishment to the guilty to deter him from any such act in
future. An action for damages raises three questions : (1) was the damage caused by the defendant's
wrongful act; (2) was it remote and (3) what should be the amount of compensation.
1(B) Causation.— The defendant is liable for any damage which is the direct consequence of his unlawful
act, whether he intended the consequence or not, and whether he could have reasonably foreseen it or
not (Polemis ’ case, the petrol vapour case; Smith v. L. & S.E. Ry . the engine fire case; Scott v.
Shepherd , the lighted squib case). The rule that a man is only liable for the natural and probable
consequences of his act was not approved in Re Polemis case, but reference was made the rule in
Haynes v. Harwood (the constable case). So long as the damage is in fact directly traceable to the
negligent act the doer of the act is liable, subject to the rule that cause and effect must not be too
remote. A case against a medical man would fail if it can be shown that the poisoned man would have
died in any case even if proper care was taken and that, therefore, negligence of the hospital was not
the factual cause of death. An employer not providing proper safety devices can show that even they
would not have prevented the accident. It is not, however, necessary that the wrongful act should be
the sole cause. If it collaborates with other causes to bring about the tragedy, liability follows. Difficult
questions arise where the different causes are not simultaneous but successive. Where the successive
cause is that of an independent tort-feasor, both would be liable. Where the accident caused no direct
injury but brought about recrudescence of an earlier disease, the injured was allowed recovery. Smith
(No. 2) 1996. The extent of liability would go by circumstances. Where the subsequent cause is a
natural development, there may be no liability for it.
1(C) Remoteness of damage.— Law will permit no damages to be recovered excepting for such as are
the ‘direct’ consequences of a wrongful act. In jure non remota causa sed proxima spectatur (in law the
immediate or proximate, not the remote, cause of any event is regarded). Damage is said to be too
remote when, the damage and the loss are not, in Lord Campbell's phrase, sufficiently ‘concatenated
as cause and effect’. Damage will be excluded as too remote—
(1) Where the defendant's act is not the ‘direct cause’ of the damage sustained by the plaintiff.
(2) When the damage is caused, wholly or principally, by the act of the plaintiff himself. This is the rule
in cases of contributory negligence. (Glover v. L.& S.E.Ry . the race-glass case).
(3) When the damage is due to the wrongful act of an independent third party, such as could not
naturally be contemplated as likely to spring from the defendant's conduct.
The principle underlying the maxim novus actus interveniens is that there are circumstances when
an intervening act of third person breaks the chain of causation between the wrongful act and the
damage sustained by the plaintiff. But if what is relied upon as novus actus interveniens is the very
kind of thing which is likely to happen if the want of care which is alleged takes place, the maxim is
no defence. Damage is recoverable if, despite intervening independent causes, the person guilty of
the original wrongful act ought reasonably to have anticipated such interventions and to have
foreseen that, if they occurred, the result would be that his wrongful act would lead to mischief. If
the defendant by his conduct directly causes or compels a third person to do an act which produces
damage to the plaintiff, such damage is not too remote (Scott v. Shepherd ). Where the novus
actus is caused by an irresponsible actor it does not break the chain of causation. Children
generally do not constitute novus actus where their action is the result of their mischievous
propensities.
(4) Where there comes in the chain of causation the act of a person who is bound by law to decide a
matter judicially and independently, the consequences of his decision are too remote from the
original wrong which gave him a chance of deciding.
Test of foreseeability.— It has now been held by the Judicial Committee of the Privy Council that the
decision in Re Polemis should no longer be regarded as good law and that the test in determining liability
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for the consequences of a tortious act of negligence is whether the damage is of such a kind that a
reasonable man should have foreseen it. Liability does not depend solely on the damage being the direct or
natural consequence of a negligent act. If the harm could be foreseen in a general kind of way, then even
though the known source of danger behaved in an unpredictable way, yet the defendant will be liable. The
very damage which occurred need not be foreseen, but where the damage instead of being a variant of the
peril is an altogether unforeseen risk, the defendant cannot be held liable. On the other hand, if the damage
which occurs is of the type or kind which can be foreseen, then the question of extent or magnitude of the
damage is not relevant; the defendant is still liable. (The Wagon Mound; Hughes v. Lord Advocate ); Jolly v.
Sutton London Borough Council , (2000).
INTENDED CONSEQUENCES are not subjected to the doctrine of remoteness. Such consequences are
never too remote. See Scott v. Shephered . The doctrine behind the “Eggshell Skull ” cases is an
application of the principle of intended consequences. If the plaintiff suffers personal injury from the
defendant's wrongful act, it is no answer that the plaintiff would have suffered less injury if he did not have
unusually sensitive skull or weak heart. See Smith v. Leech Brain & Co ; Smith New Court Securities Ltd. v.
Scrimgeour, (1996).
Intervening Acts or Events.— Damage resulting to the plaintiff after the chain of causation set in motion
by the defendant's wrongful act is snapped is too remote and does not qualify for award of damages
against the defendant. Weld Blundell v. Stephens, (1920) AC 956 : 123 LT 593 : 36 TLR 640 (HL) p. 986
(LORD SUMNER). The proposition so stated is simple but the difficulty lies in formulating the principles as
to when an act or event breaks the chain of causation. The snapping of the chain of causation may be
caused either by a human action or a natural event. When a prisoner of sound mind who was in police
custody committed suicide as proper precautions to prevent him from doing so were not taken, though
there was previous history of suicide attempts by him, the act of the prisoner of self destruction was held
not to amount to novus actus interveniens. Reeves v. Commissioner of Police of the Metropolis, (1999) 3
All ER 897, pp. 902, 903, 914 : (2000) 1 AC 360 : (1999) 3 WLR 363 (HL). Similarly when a person suffered
serious injuries leading to severe depression as a result of breach of duty of the defendant and committed
suicide, it could not amount to novas actus interventions absolving the defendant. Corr. v. IBC Vehicles
Ltd., (2008) 2 ALL ER 943. For this case see further title 1(C)(IV)A.
Mitigation of damage.— An injured person cannot claim damages for any loss which he could have
avoided by taking reasonable steps. If a person aggravates his injury by referring to take treatment, he
cannot recover for the aggravation. A number of other examples have been provided in the text.
1(D) Measure of damages.— The expression ‘measure of damages’ means the scale or rule by reference to
which the amount of damages to be recovered is, in any given case, to be assessed. Damages may rise to
almost any amount, or they may dwindle down to a nominal figure.
Kinds of damages.— There are four kinds of damages; contemptuous; nominal; substantial; and
exemplary.
Contemptuous damages are awarded when it is considered that an action should never have been
brought.
Nominal damages means a sum of money that may be spoken of, but that has no existence in point of
quantity, e.g. one anna (equivalent to 6 paise) one shilling. Nominal damages are awarded where an action
was a proper one to bring, but the plaintiff has not suffered any special damage, and does not desire to put
money into his pocket. Such damages are given where the purpose of the action is merely to establish a
right, e.g. trespass, invasion of a right of easement. Every infringement of a right involves a claim to
nominal damages, which may be one shilling or a farthing.
Substantial or ordinary damages are awarded where it is necessary to compensate the plaintiff fairly for
the injury he has in fact sustained. The law does not aim at restitution but compensation , and the true test
is, what sum would affordunder the circumstances of each particular case, a fair and reasonable
compensation to the party wronged for the injury done to him. The plaintiff's own estimate is regarded as
the maximum limit.
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Exemplary damages are awarded wherever the wrong or injury is of a grievous nature, done with a high
hand, or is accompanied with a deliberate intention to injure, or with words of contumely, and abuse, e.g.
gross defamation, seduction of a man's daughter, malicious prosecution, unconstitutional action, e.g.
wrongful arrest of a servant of the crown, or when the industry which causes injury is hazardous or
inherently dangerous, though in such cases it would not be wise to link damages with the paying capacity of
the industry. M.C. Mehta v. Union of India . In such cases the injury done is so grave and of so
reprehensible a character that it is next to impossible to measure damages by any strict numerical rule. The
object of giving exemplary damages is to make a public example of the defendant to deter all others from
the commission of similar act. Exemplary damages were allowed in a libel action where the publisher had
no genuine belief in the truth of the matter and did not take steps to remove suspicion about its untruth.
John v. MGN Ltd. , 1996. Exemplary damages should not be allowed where the defendant has been
punished for the offence arising out of the same set of fact. Gray v. Motor Accidents Commission , (1999).
An improper conduct on the part of the plaintiff can taken into account in reducing or even eliminating the
award of aggravated or exemplary damages. See Thompson v. Commr. of Police , (1997) (cited at p. 203)
wherein guidelines have been suggested.
General and special damages.— General damages are those which the law will imply in every violation of
a legal right. They need not be proved by evidence. They arise by inference of law even though no
pecuniary loss can be shown. Special damages are such as the law will not infer from the nature of the act
complained of. They must be claimed on the pleadings and proved at the trial.
The Court is entitled to take into consideration as special damage the fact that the plaintiff's normal
expectation of life has been materially shortened by the injury caused by the negligence of the defendant
(Flint v. Lowell ).
Prospective and continuing damages.— Damages resulting from the same cause of action must be
recovered at one and the same time as more than one action will not lie for the same cause of action. If a
person is beaten or wounded, if he sues he must sue for all his damages, past, present and future. He
cannot maintain an action for a broken arm and subsequently for a broker rib, though he did not know of it
when he commenced the action. But if the same wrongful act violates two rights, successive actions may
be brought in respect of each of them. If a person sustains two injuries from a blow, one to his person and
another to his property, as for instance damage to a watch, he can maintain two actions in respect of that
one blow. Similarly, where the cause of action is a continuing one, a fresh cause of action arises every day;
and it is open to the plaintiff to bring fresh action. A fresh action cannot be brought unless there is both new
unlawful act and fresh damage.
Damages for nervous and mental shock.— Damages may be recovered for nervous shock occasioned
by fright though unaccompanied by any actual impact. It is not necessary that the shock must be a shock
arising from a reasonable fear of immediate personal injury to oneself. The cause of action is created by
breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries followed by damage.
(Wilkinson v. Downton , the grey hair case, Dulien v. White , the premature birth case).
The right to recover damages for mental shock caused by the negligence of the defendant is not limited to
cases in which apprehension as to human safety is involved. The principle is that mental or nervous shock,
if caused by defendant's negligent act, is just as really a damage to the sufferer as a broken limb (Owen v.
Liverpool Corporation , the funeral procession case). Damages may also be recovered for psychiatric shock
even though it is caused not by personal injury, but by witnessing the destruction of one's property at the
hands of the defendant. Attia v. British Gas Plc . The House of Lords have laid down the following two
propositions: “(1) In cases involving nervous shock, it is essential to distinguish between the primary victim
and secondary victims. (2) In claims by secondary victims the law insists on certain control mechanisms, in
order as a matter of policy to limit the number of potential claimants. Following these principles a person
involved but not injured in an accident could not recover for the revival of his psychiatric condition by reason
of the shock”. Page v. Smith , (1995) 2 All ER 736 (HL). The common law regarding recovery of
compensation for pure psychiatric illness also described by the expression nervous shock was recently
reviewed by the House of Lords in White v. Chief Constable of South Yorkshire , (1999) where all relevant
earlier authorities were considered. The court noticed that this law “is a patchwork quilt of distinctions which
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are difficult to justify.” The court, however, declined to reform the law leaving this task to Parliament. Even
this decision has not finally settled all the aspects of law relating to compensation for psychiatric injury. This
appears from the subsequent decision of the House of Lords in W v. Essex County Council , (2000). See at
p. 210.
Damages for personal injuries.— Personal injuries may cause pecuniary loss or non-pecuniary loss. Pain
and suffering, loss of amenities, and expectation of life are non-pecuniary losses whereas expenses and
loss of earnings are examples of pecuniary losses. Pain and suffering is a head of damages provided they
are really experienced. Damages for loss of expectation of life have been abolished in England by the
Administration of Justice Act, 1982. Such damages may now be allowed under “pain and suffering”. It is
often very difficult to find the money value of such a loss. The Courts will become conventional and having
regard to earlier cases, fix a moderate and most reasonable figure. The current feeling is that the amount
awarded must be liberal and not niggardly since the law values life and limb in a free society in generous
scales. The point of emphasis is that the sum awarded must be fair and reasonable. Concord of India Ins.
Co v. Nirmala Devi (fatal accident case).
Pecuniary loss would include medical and nursing care. It will not make much difference whether services
were rendered on payment or by home professionals or laymen. Loss of earnings constitutes an important
pecuniary loss for which compensation is allowed. Damages under this head up to the date of judgment are
easily assessed. For the loss of future working life they are assessed by the multiplic and multiplier method.
The date of trial is the appropriate date on which to determine (a) the actual loss of earnings arising up to
that date and (b) the future loss of earnings based on a multiplicand and multiplier and ascertained from the
facts as they are at that date. The estimate of the award for loss of earning capacity in the labour marked
has to be somewhat speculative and the court has to do its best on the facts of each case. Where
gratuitous service was rendered by the wife for help in running the business after injury to her husband, the
financial value of the service was not allowed to be recovered. Warwick v. Hudson , (1999), where the
injured person receives a recurring annual sum as incapacity pension, this is not taken into account in
calculating loss of wages or retirement pension. Longden v. British Coal Corpn. , (1998).
Compensation for unwanted pregnancy resulting from medical negligence.— The question as to what
damages are recoverable in case of unwanted pregnancy resulting from medical negligence in sterilisation
operation has been considered in different countries. It is generally accepted that the mother in such cases
would be entitled to recover general and special damages for personal injury in suffering unwanted
pregnancy. But there appears to be a sharp divergence of opinion on the question whether the parents
would be entitled to recover damages for economic loss in rearing up the child. Macfarlane v. Tayside
Health Board , (1999); State of Haryana v. Santra , (2000).
Interest .—In England, as also in India, interest is allowed on damages awarded. No interest is allowed on
future pecuniary loss. Interest is allowed from the date of the claim to that of judgment at the rate between 9
to 12 per cent. The Karnataka High Court allowed 6% on the amount awarded from the date of the claim
application.
Injury to property.— The measure of damages is the cost of reinstating the property. Where the property
is totally lost, its value at the time of loss is the measure and where it is damaged, the cost of putting it back
to work is the measure; where goods are lost en route, their value at the destination. The basic princi ple
governing the measure of damages for damage to property is restitutio in integrum , though the application
of this principle works differently in different cases.
Interim damages.— The courts have no inherent power to award damages on interim basis. The
defendant's liability has to be first ascertained. This may in some cases prolong the plaintiff's sufferings.
The English Administration of Justice Act, 1969 was amended on the basis of a Committee Report. This
enabled the courts to make rules on the point. The rules now provide that the court may order out of the
expected liability of the defendant the payment of such sum to the plaintiff as it thinks just when (i) the
defendant has admitted liability, or (ii) the plaintiff has obtained judgment against the defendant, or (iii) if the
action proceeds to trial the plaintiff would obtain substantial compensation. It is further necessary that the
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defendant should have been insured against such liability, or should be a public authority, or should be a
person of means and resources.
The Madhya Pradesh High Court followed the English rules and awarded on interim basis Rs. 250 crores
by way of compensation to the victims of the Bhopal gas disaster. Union Carbide Corporation v. Union of
India .
Compensation under s. 357, Cr.P.C.— Criminal courts have been empowered by this section to award
compensation to the victim of the crime out of the fine money that may be collected from the accused. If no
fine has been imposed, the accused may be ordered to pay such sum by way of compensation as may be
specified in the order. This power can be exercised if the act of the accused of which he has been
convicted caused loss or injury to the victim. Since, virtually every criminal act is likely to cause loss or
injury, the Supreme Court has opined that the power under the section should be liberally exercised.
Harikrishan and State of Haryana v. Sukhbir Singh . The amount may be fixed by taking into account the
nature of the crime, the justness of the claim by the victim and the ability of the accused to pay. Fifty
thousand rupess were awarded to a person who lost his power of speech permanently. The amount is
adjustable towards a subsequent civil action, if any. In two cases of death, one homicidal and one by
medical misconduct, the Supreme Court enhanced the fine amount to rupees one lakh in each and directed
the same to be paid to the widow. Venkatesh v. T.N ., and Jacob George (Dr.) v. State of Kerala , The
Supreme Court also directed compensation to be paid to a rape victim. Delhi Domestic Working Women's
Forum v. Union of India .
It has also been held by the Supreme Court that if the fine, which a magistrate can impose, is inadequate to
compensate the complainant, he can instead of imposing a sentence of fine directly proceed to award
compensation under section 357(3), which fixes no limit as to the amount which can be awarded. Thus a
firstclass magistrate, who could impose only a fine of Rs. 5000 under section 29 the CrPC, was held
entitled to award Rs. 83,000 as compensation to the complainant for an offence under section 138 of the
Negotiable Instruments Act.Pankajbhai Nagjibhai v. State of Gujarat , (2001).
A civil court is bound to take into account the amount of compensation awarded under s. 357 Crpc.D.
Perushotama Reddy v. K. Sareesh, (2008) 8 SCC 505 : AIR 2008 SC 3202.
Provisional award.— By an amendment of the Supreme Court Act, 1981, the English Courts have been
empowered to award compensation by way of provisional award on the assumption that the condition of the
injured person will not deteriorate further still and to make a final award if a deterioration takes place.
In England the court has also the discretion under Section 33 of the Limitation Act, 1980 to extend period of
limitation in personal injury cases and this discretion appears to have been quite liberally applied. For
example if when the injury such as sexual abuse was caused the defendant was a pauper and the claimant
did not sue him as she would have recovered nothing but if later say after a few years the defendant
received a lottery or gained enough property and the claimant brought the suit for damages the court may
be willing to extend the period of limitation. See Sapna v. United Insurance Co. Ltd., (2008) 2 All ER 1 (HL).
Damages in contract and in tort.— The measure of damages is the same in tort as in contract, except—
(1) Intention is an essential element in tort in assessing damages, but not in a breach of contract.
(2) In contract, damages are only a compensation. In tort to property, they are the same. Where an
absolute right is infringed, the plaintiff is awarded nominal damages. Where the injury is to the person
or feelings and the facts disclose fraud, malice or insult, exemplary damages are given; there is no
such distinction as nominal or exemplary damages in contract except in an action for breach of
promise of marriage.
(3) In tort the pecuniary condition of the wrongdoer is often taken into consideration, not so in contract.
(4) The rule as to remoteness of damage is not the same in actions of tort and of contract. In tort damages
are given for consequences of which the defendant had no notice. (The Arpad, Polemis ’ case). In the
case of a breach of contract the rules in Hadley v. Baxendale apply.
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(5) In contract it is the duty of the plaintiff to take measures to reduce the damages if there is breach. A tort
consists in the defendant's failing to do an act which he is bound to do or in doing one which he ought
not to do.
Injunction.— In cases of torts, a court interferes by injunction—
(1) To prevent the infringement or disturbance of a right.
(2) For the purpose of better enforcing rights or preventing mischief until such rights have been ascertained.
(3) Where the remedy of damages would be inadequate or practically worthless.
Before granting an injunction the Court must—
(1) be satisfied that the injury which is apprehended will be either continuous, or frequently repeated or very
serious;
(2) consider what relation the damage which would be caused to the plaintiff by refusing the injunction and
the damage which would be caused to the defendant by granting it bear to one another;
(3) consider the interest of third persons in such cases.
The right to an injunction is governed in India by the Specific Relief Act, 1963. The grant of a temporary
injunction is governed by the Code of Civil Procedure, 1908.
Restitution of property.— The restitution is of specific property. Thus a person who is wrongfully
dispossessed of immoveable property or of specific movable property, is entitled to recover the immovable
or movable property as the case may be (Specific Relief Act, ss. 9 and 10: ss. 5 to 7 of the new Act).
Joint and several tort-feasors.— All persons who aid, counsel, direct, or join in the committal of a
wrongful act are joint tort-feasors.
The joint liability arises in three ways—
(1) Agency, when one person employs another to do an act which turns out to be a tort.
(2) Vicarious liability, i.e., liability arising from relations such as master and servant, husband and wife,
guardian and ward.
(3) Joint action, when two or more persons combine together to commit an act which amounts to a tort.
The liability of the joint wrong-doers in tort is joint and several.
It should be noted that at common law—
(1) Joint tort-feasors may be sued jointly or severally. If sued jointly, the damages may be levied from all or
any one of them.
A case of composite negligence is sometimes confused with contributory negligence. The distinction
has been explained by the Supreme Court in TO Anthony v. Karvarnan, (2008) 3 SCC 748 [LNIND
2008 SC 227] : (2008) 3 JT 297.
(2) A judgment against one or more of several joint tort-feasors is a bar to any further action against the
other, even though it remains unsatisfied. Otherwise a vexatious multiplicity of actions would be
encouraged.
(3) A release granted to one or more of the several tort-feasors operates as a discharge of the others. But a
covenant not to sue one of them is no bar to an action against others.
(4) Where, without his fault, a person gets mixed up in the tortious acts of others, he may not be personally
liable, but he is under a personally obligation to help the wronged person by giving him information
about the matter and the identity of the persons involved.
The (English) Law Reform (Married Women and Tort-feasors) Act, 1935, provides that—
(1) Judgment recovered against one joint tort-feasor is not a bar to action against another joint tort-feasor in
respect of the same damage.
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(2) If more than one action is brought in respect of that damage against tortfeasors, whether joint or
otherwise the sums recoverable by way of damages shall not in the aggregate exceed the amount of
damages awarded in the first action.
(3) The plaintiff in any such subsequent action is not entitled to costs unless the Court thinks there was
reasonable ground for the action.
Contribution between wrongdoers. —At common law an action for contribution was maintainable by one
wrong-doer against another, although the one who sought contribution might have been compelled to
satisfy the full amount of damages. This is known as the rule in Merryweather v. Nixon (the mill machinery
case). This principle was based on the maxim ex turpi causa non oritur actio .
The rule in Merryweather's case has been abolished by the Law Reform (Married Women and Tort-feasors)
Act, 1935, which provides that—
(1) A tort-feasor may recover contribution from any other tort-feasor, whether joint or otherwise, liable in
respect of the same damage.
(2) A tort-feasor is not entitled to recover contribution from another tort-feasor who is entitled to indemnity
from the tort-feasor actually made liable.
(3) The amount of contribution recoverable from a tort-feasor shall be just and equitable having regard to
the extent of his responsibility for the damage.
(4) The Court may exempt any person from liability to make contribution.
Remedies under Constitution.— It has been held about the writ jurisdiction of the Supreme Court and of
the High Courts under the Constitution that it is not merely preventive but also remedial and includes a
power to award interim or final compensation in appropriate cases. Lest this may start a trend of going in for
writ jurisdiction instead of civil suits, such compensation is restricted to cases involving infringement of
fundamental rights in gross and patent manner in which a number of persons are the victim or the individual
would suffer a lot because of his inability to undertake litigation. A writ may be allowed to be instituted for
this purpose by any person other than the sufferer or a class of sufferers.
CHAPTER X
CLASSIFICATION OF TORTS
It is difficult to classify torts with scientific accuracy. No scheme so far devised is comprehensive, accurate and
easily intelligible. The classification adopted in this work is based upon SIR HENRY FINCHE'S view. He says that
torts affecting person may relate to body, reputation, freedom, domestic rights and those affecting property may
relate to immovable property, movable property, incorporeal personal property and a third category may affect both
person and property. In POLLOCK'S LAW OF TORTS the classification is in terms of personal wrongs, wrongs to
property and wrongs to person, estate and property generally.
CHAPTER XI
TRESPASS TO PERSON
Introduction.— Trespass symbolises invasion of a man's right without any justification. When the injury is not
inflicted intentionally, but negligently, the cause of action is negligence, not trespass, what survives now under
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trespass are intended invasions. In trespass, the defendant has to plead and prove justification and damage is not
an essential element. This Chapter is confined to intended trespass to person.
An assault is unlawful laying of hands on another person or an attempt or offer to do a corporal hurt to another,
coupled with an apparent present ability and intention to do the act. It is not every threat, when there is no actual
personal violence, that constitutes an assault; there must in all cases be the means of carrying the threat into affect
(Stephen v. Myers , the parish meeting case; Cama v. Morgan ). The intention as well as the act makes an assault.
Actual contact is not necessary in an assault, though it is in a battery. The holding up a fist or shaking a whip, when
near enough to be able to hit, is an assault. If a sword is flourished at such a distance that it would be impossible to
hurt any person, it would not be an assault. It is the ability to do present harm that is the essence of this wrong. The
menacing attitude and hostile purpose go to make the assault unlawful. Mere words do not amount to an assault.
But the words which the party threatening uses at the time may either give to his gestures such a meaning as may
make them amount to an assault, or may prevent them from doing so.
A battery is the actual and unwarrantable striking of another person, or touching him in a rude, angry, revengeful,
or insolent manner (Cole v. Turner ), e.g. pouring water on a person or spitting in his face. It includes assault; and is
mainly distinguished from the latter in this fact that physical contact is necessary to accomplish it. It does not matter
whether the force is applied directly or indirectly to the human body itself or to anything in contact with it; nor
whether with the hand or anything held in it. But every laying on of hands is not battery, for the party's intention
must be considered. Again consent is not always a defence to battery. Prize-fighters are guilty of battery though the
meetings are by consent.
Mayhem is a bodily harm whereby a man is deprived of the use of any member of his body or of any sense which
he can use in fighting to defend himself or annoy his enemy, or by reason of which he is generally and permanently
weakened, e.g. the cutting off or disabling or weakening a man's hand or finger, striking out his eye or foretooth, or
castrating him, but not the cutting off his ear or nose.
In all the above wrongs an action will lie without proof of actual damage as they violate right of person.
Defences.— Assault and battery may be justified in the following cases:—

(1) Self-defence; or in defence of one's wife or husband, children, parents or one's master.
(2) Defence of property, lands, houses, goods or chattels.
(3) Expulsion of a trespasser.
(4) Retaking of goods.
(5) Lawful correction.—In exercise of parental or quasi- parental authority, i.e. for the correction of a pupil, child,
apprentice or sailor on board ship.
(6) Leave and licence of the party injured, e.g. boxing, fencing.
(7) Preservation of public peace.
(8) Legal process.—Lawful attachment or arrest by an officer of justice.
1 False imprisonment. —
3(A) What Constitutes False Imprisonment .—False imprisonment is a total restraint of the liberty of a
person, for however short a time, without lawful excuse. To constitute this wrong two things are
necessary—
(1) The total restraint of the liberty of a person. The detention of the person may be either—
(a) actual, e.g. , by laying hands upon a person; or
(b) constructive, by mere show of authority, e.g. by an officer telling any one that he is wanted and
making him accompany the officer (Grainger v. Hill ).
(2) The detention must be unlawful. The period for which the detention continues is immaterial.
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There must be a total restraint for some period upon the liberty of another without sufficient legal
authority. There is imprisonment if the victim is in a premises and the victimiser has the intention of
preventing him from leaving the premises and also has the ability do so. R v. Bournewood NHS Trust ,
(1998). The tort is that of strict liability. It is no defence to say that the defendant took reasonable care
and acted in good faith. R. v. Governor of Brochhill Prison, (No. 2) , (2000). A partial obstruction of his
will, as the prevention of his going in one direction or in all directions but one does not constitute an
imprisonment (Bird v. Jones , the regatta case), though compelling him to go in one direction does.
There must be such a detention as to limit the plaintiff's freedom of locomotion in all directions. If there
be one way of escape there is no arrest and no false imprisonment. If a person is unlawfully
imprisoned, he may use force to release himself. False imprisonment is an actionable wrong and also
an offence under the Penal Code.
Where a person, who is lawfully imprisoned, is held under physical conditions so intolerable that his
detention becomes unlawful, he too is entitled to sue.
Measures of crowd control adopted by the police resulting in the detention of a crowd, which also
included some innocent persons, to prevent breach of peace, and risk of injury to persons or property
did not offend Article 5(1) of the European Human Rights Convention, which guarantees everyone right
to liberty and security of person and did not also amount to false imprisonment actionable under
common law, so long as the measures adopted are taken in good faith, are proportionate and are
enforced for no longer than is reasonably necessary. Austin v. Metropolitan Police Commissioner,
(2009) 3 ALL ER 458 (H.L.).
3(B) Who is Liable.— A person may be liable for false imprisonment not only when he directly arrests or
detains the plaintiff but also when he was active in promoting or causing the arrest or detention, even if
he does so through the instrumentality of officers. When arrest is ordered by Magistrate on complaint,
the complainant is not liable unless he actively brings about the detention.
3(C) Arrest by Public Officer.— There is no liability where detention is in accordance with the Criminal
Procedure Code and the subsequent formalities are also observed. Where a person is detained on a
reasonable suspicion, it must exist at the time of arrest. The officer should act in good faith in
furtherance of the object of the authorising statute.Mc Grath v. Chief Constable of the Royal Ulster
Constabulary , (2001); Ravinder Kumar Sharma v. State of Assam , (1999), arresting in good faith
under a control order which was withdrawn. The detinu must be informed of the grounds of arrest. He
should be produced before a Magistrate within 24 hours and further detention should be under
Magisterial orders. Where the Court orders release and even then detention is continued, it amounts to
false imprisonment. The Supreme Court has laid down that the existence of the power of arrest is not
sufficient in itself. The power must be used on some reasonable justification. Joginder Kumar v. State
of U.P .
The exercise of power to arrest is open to challenge on Wednesbury Principles. But with the
enforcement of the Human Rights Act 1998 the United Kingdom and consequent European influence it
has now to face, the test of proportionality which is a much stricter test of reasonableness when the
question is of impartment of human rights/fundamental rights. The test of proportionality has also been
accepted by the Supreme Court so the same test may be applied in India also for adjudicating on the
validity of arrest. R (on the application of Laporte) v. Chief Constable of Gloucestershire, (2007) 2 All
ER 529.
The safeguards in matters of arrest by a police officer in a cognizable offence judicially introduced by
the Supreme Court in the cases of Joginder Kumar, D.K. Basu and other cases have now found
statutory recognition in section 41(1) (a), and (b) as amended by the Code of Criminal Procedure
(Amendment) Act, 2008. Section 41(1) (a) and (b) reproduced in the text.
An arrest made by a police officer which does not comply with the safeguards so enacted or does not
contain the reasons for arrest as required by clauses (a) to (e) of Section 41(1) b (ii) would be held
illegal.
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3(D) Arrest by Private Person .— Section 43 of Cr.P.C. authorises private arrest of a person who has
committed a non-bailable cognizable offence. There is no liability if the person is promptly handed over
to authorities.
Expulsion of trespasser.— A person forcing entry into a house may be thrown out by such violence
as may be necessary including detention. Force applied must not be disproportionate to the evil to be
prevented.
Retaking of Goods.— Necessary force may be used for recovering possession of goods or property
from a person who is refusing to surrender.
Lawful Correction. —Chastisement, including beating and assault, is justifiable in the exercise of
parental or quasi- parental authority.
Preservation of Public Peace.— Reasonably necessary force may be used for preventing a person
from causing breach of public peace.
Statutory Authority.— Assault and arrest by persons in authority has been examined before.
5(D) Damages.— The plaintiff is entitled to recover compensation for the indignity or suffering which the
trespasser has caused. The amount of compensation varies according to circumstances, because it
has to be commensurate with the injury. The more highhanded and less reasonable the detention is,
the larger may be the damages; and conversely the more nearly reasonable the defendant may have
acted, the smaller will be the proper assessment. (Dumbell v. Roberts ).
Detention is justifiable under certain circumstances—
(1) The defendant can show that he acted under a legal and legally executed warrant. If there was no
warrant for the arrest, then the law differs according as the defendant is a constable, or a private
person.
(2) A constable may arrest any one suspected to have committed a felony; or to prevent a breach of the
peace.
The English common law right of a private citizen to arrest ceased to apply to India since the
enactment of the Indian Penal Code and the Criminal Procedure Code.
CHAPTER XII
DEFAMATION
Defamation may be committed either by way of writing (or its equivalent), or by way of speech. The term ‘libel’ is
used for the former kind of utterances and ‘slander’ for the latter. Libel is a written and slander is a spoken
defamation.
A libel is a publication of false and defamatory statement in permanent form tending to injure the reputation of
another person without lawful justification or excuse.
A slander is a false and defamatory verbal statement tending to injure the reputation of another without lawful
justification or excuse. By reputation is meant the opinion of the world in general.
Libel differs from slander in several respects—

(1) Libel is addressed to the eye; slander to the ear.
(2) In English law, libel is a criminal offence as well as a civil wrong; slander is a civil wrong only.
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(3) In libel, the law presumes that the person defamed has suffered damage; slander is actionable only when
special damage can be proved to have been its natural consequence, or when it conveys certain
imputation.
(4) In libel, the defamatory matter is in some permanent form; slander is in its nature transient.
(5) Libel shows greater deliberation and raises a suggestion of malice; slander may be uttered in the heat of the
moment and under a sudden provocation.
(6) The actual publisher of a libel may be an innocent person and, therefore, not liable; in every case of
republication of a slander, the publisher acts consciously and voluntarily and must necessarily be guilty.
(7) Under the English statute of limitation an action of libel is barred after six years, but of slander after two. In
India the period of limitation is one year for both.
In England the Faults Committee recommended in 1975 that the distinction of libel and slander should be
abolished. In India the Courts are of the view that the distinction should not be applied here.
Libel.— To support an action for libel the statement complained of must be—
(1) False
(2) In writing
(3) Defamatory
(4) Published
(1) The falsity of the charge is presumed in plaintiff's favour. The burden of proof that the words are false does
not lie upon the plaintiff. Defamation of a person is taken to be false until it is proved to be true.
(2) The term ‘libel’ indicates something printed or written, but it includes also any scandalous painting, effigy, or
emblem. Defamation through the agency of mechanically reproduced pictures and words, e.g. a talking
cinematograph film, constitutes a libel. Defamation through the agency of wireless telegraphy constitutes a
libel under Defamation Act, 1952.
(3) Any words will be deemed defamatory , which expose the plaintiff to hatred, contempt, ridicule or obloquy,
or which tend to injure him in his profession or trade or which cause him to be shunned or avoided by
society. It is for the plaintiff to show that the words complained of were understood in a defamatory sense.
Where the words are not prima facie defamatory, but the plaintiff intends to maintain that they were
defamatory by reason of their being understood in a special sense, he must insert an averment called an
innuendo . An innuendo is an explanatory averment in the statement of claim defining the meaning which
the plaintiff assigns to the words complained of or specifying the plaintiff as the person to whom they apply.
The purpose of inserting an innuendo is to point out a secondary meaning in which the words are
defamatory. An innuendo is necessary where the imputation is made in an oblique way, or by way of
question, exclamation, conjecture, or irony. An innuendo cannot add a fact or enlarge the natural meaning
of words. In the absence of an innuendo , no evidence can be admitted, to prove a special meaning, and
the suit will be dismissed. The defamatory words must also refer to some ascertained or ascertainable
person, and that person must be the plaintiff. The words must concern the plaintiff, i.e. must affect his
character or touch him in the way of his office, profession, or trade (Capital & Country Bank v. Henty , the
Bank run case). The intention or motive with which the words are used is immaterial. It is not necessary
that all the world should understand the libel: it is sufficient if those who know the plaintiff can make out that
he is the person referred to.
If the words are false and defamatory the law implies malice.
It is not a tort to defame a deceased person. But the person defaming may be criminally prosecuted if the
imputation would have injured the reputation of that person if living, and is intended to be hurtful to the
feelings of his family or other near relatives.
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Where the words are spoken of a class, any member of the class can sue by proving that they were meant
for him. There must be something in the words and the manner of publication which shows that the plaintiff
was the target of the attack.
A partnership firm cannot sue, but individual partners may do so.
A corporation can sue in respect of damage to its property, trade or business. An officer of the corporation
can also sue by showing that the attack on his corporation caused him special damage.
The rule of English law that a trading corporation or company can sue in libel for general damages when it
could prove no financial loss has been held to be not incompatible with the European convention enforced
by the Human Rights Act, 1998 and has been reaffirmed. Jameel v. Wall Street Journal, (2006) 4 All ER
1279 (H.L.).
“So far as the Government, local authority and other organs and institutions exercising Government power
are concerned they cannot maintain a suit for damages for defaming them.” Public officers are not allowed
to recover damages for statements relating to their official conduct unless made with knowledge that it was
false or with reckless disregard of whether it was true or false. Raj Gopal v. State of T.N ., (1995). Similar
considerations have been applied in considering comments against public figures. In England the House of
Lords has not accepted that any principle other than the common law approach of qualified privilege to
misstatement of facts should be applied to defamatory statements relating to persons holding or who had
held elected offices or that ‘political information’ should be developed as a new category of qualified
privilege, whatever the circumstances. Such a development according to the court, would not provide
adequate protection for reputation which was an integral part of the dignity of the individual and formed the
basis of many decisions fundamental to the well being of a democratic society and that it was unsound in
principle to distinguish political discussion from discussion of other matters of serious public concern.
Reynolds v. Times Newspaper Ltd. , (1999).
The judicial basis of this extension in Reynolds has been a matter of debate whether it is different from the
traditional form of privilege as held by Lord Hoggman in Jameel v. Wall Strut journal, (2006) 4 All ER 1279
(H.L.) or it is built upon the traditional only interest privilege as held by the majority in that case.
But there is now no doubt as held in Seaga v. Harper, (2008) 1 All ER 965 (H.L.) that Reynold's case “was
intended to give and has given a wider ambit of privilege to certain types of communication to the public in
general than would have been afforded by the traditional rules of law”. This extension known as ‘ Reynolds
defence ’ is not restricted to the press or broadcasting media but covers “any person who publishes
material of public interest in any medium, so long as the conditions framed by Lord Nicholls as being
applicable to responsible journalism are satisfied”.
Unintended defamation.— A person may be held liable without any intention or fault. This has been
criticised as a needless curtailment of freedom of speech and expression. The position has been somewhat
rectified by the (English) Defamation Act, 1952. The Act applies where the publication is innocent and
apology has been expressed. The Courts in India can also act on the principle of the Act as a matter of
reform of existing laws.
(4) As regards PUBLICATION, it may be observed that the making known, knowingly or negligently, of a libel or
slander to any person, other than the object of it, is publication in its legal sense. If the statement is sent
straight to the person of whom it is written, there is no publication of it. A communication to a husband or
wife of a charge against the wife or husband constitutes a sufficient publication notwithstanding the
common law principle that husband and wife are one person. But the uttering of a libel by a husband to his
wife is no publication. The plaintiff must prove the publication of the libel by the defendant. Every sale and
delivery of a libel is a fresh publication thereof; and each publication gives a fresh cause of action.
An internet server provider which performed no more than a passive role in facilitating postings on the internet could
not be held liable as a publisher at common law in a libel action in respect of defamatory statements posted on
websites. Bunt v. Tilley, (2006) 3 All ER 396.
If a business communication is privileged, the privilege covers all incidents of the transmission and treatment of that
communication which are in accordance with the reasonable and usual course of business, e.g. dictating business
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letters to a typist even though they contain defamatory statements. Where a document containing defamatory
statements is read out to third persons it amounts to slander and not libel.
Newspaper libel. —Newspapers are subject to the same rules as other critics, and have no special right or
privilege, and in spite of the latitude allowed to them, they have no special right to make unfair comments, or to
make imputations upon or in respect of a person profession or calling. The range of a journalist's criticism or
comment is as wide as that of any other citizen and no wider. (Rustom K. Karanjia ).
By virtue of the (English) Contempt of Courts Act, 1981, newspapers are not compellable to disclose the sources of
their information unless the court so orders. A court will order disclosure if it is convinced by the opposite party that
such disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.
This privilege is called “newspaper rule” and is applicable in India also.Nishi Prem v. Javed Akhtar .
Where the defamatory statement consisted of an article with a headline and photograph, the House of Lord said
that the whole article including the headline and photograph must be taken together. Charleston v. News Group
Newspapers Ltd. , (1995).
Investigative journalism does not enjoy any special protection. Therefore, when newspapers publish accusation of
criminal guilt against a person as a result of their investigation, they do so at their own risk and they do not enjoy
any qualified privilege. Grobbellar v. New Group Newspapers Ltd. , (2001). In reporting or making comments on
matters of public interest the newspaper must follow the rule of ‘responsible journalism’ as held in Reynolds v.
Times Newspapers Ltd., (1999) 4 All ER 609.
Slander.— In the case of a slander, in addition to the first, third and fourth requisites which are necessary to be
alleged in an action of libel, it must further be shown that some special damage has resulted from the use of the
words complained of. Such damage must be the legal and natural consequences of the slander. But an action of
slander may be maintained, without proof of special damage, in the following cases:—
(1) If a criminal offence be imputed to the plaintiff, the crime must be one for which corporal punishment may be
inflicted, e.g. murder, robbery, perjury, theft, etc. Mere liability to arrest is not sufficient, because arrest is
not a punishment.
(2) If a contagious or infectious disorder, tending to exclude the plaintiff from society, be imputed to him.
(3) If any injurious imputation be made, affecting the plaintiff in his office, profession or trade.
(4) If the plaintiff is a woman or a girl, and the words impute unchastity or adultery to her (Slander of Women
Act, 1891).
In England by virtue of the Defamation Act, 1952 it is not necessary to prove whether or not the words were spoken
of the plaintiff in the way of his office, profession or calling.
The common law rule that slander is not actionable per se has not been followed in India except in a few decisions.
The Indian cases fall under four categories:—
(1) Where the words impute a crime.
(2) Where the words complained of are words of vulgar abuse.
(3) Where they impute unchastity to a woman.
(4) Where they tend to lower the character of the plaintiff in his caste.
(1) Imputation of crime. —An action can be maintained where the words complained of impute the
commission of a criminal offence.
(2) Abuse.— A distinction has been made between abusive language which amounts merely to an insult and
abusive language which is both insulting and defamatory. In the former case no action lies (Girish Chunder
v. Jatadhari , the ‘sala’ case); in the latter, an action lies without proof of special damage (Parvati v.
Mannar , the unchaste wife case).
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(3) Unchastity .—The Calcutta High Court held in a case arising in the town of Calcutta that such words were
not actionable in the absence of proof of special damage. In a case coming from the mofussil it held that
such an imputation was actionable without proof of special damage. The Madras High Court has, however,
held that a suit is maintainable on the Original Side of the High Court, without proof of special damage. The
Bombay High Court has held that though Parsis are governed by common law, yet words imputing adultery
to a Parsi married woman are actionable without proof of special damage as adultery is an offence under
the Indian Penal Code (Hirabai v. Dinshaw, the paramour case).
(4) Caste.— It is actionable without proof of special damage to say of a high caste woman that she belongs to
an inferior caste.
Repetition.— Every repetition of defamatory words is a new publication and furnishes a distinct cause of action.
Tale-bearers are as bad as talemakers. An action will lie even though the statement complained of was a current
rumour and the defendant bona fide believed it to be true. The English community law do not recognise any global
theory of justification. Separate actions in each relevant jurisdiction are permissible. Beversovsky v. Michales ,
(2000). If the damage arises simply from the repetition the originator will not be liable, except—
(i) where the originator had authorised the repetition; or
(ii) where an actual duty is cast upon the person to whom the slander is uttered to communicate what he has
heard to some third person.
The Defences peculiar to an action of libel or slander are:—

(1) Truth
(2) Fair comment
(3) Privilege
(1) Justification by truth.— The plea that the defamatory statement was true is known as the plea of
justification. The truth of any defamatory words is a complete defence to an action of libel or slander
though it is not so in a criminal trial. The law will not permit a man to recover damages in respect of an
injury to character which he either does not, or ought not to, possess. The onus of proving the truth of the
words complained of lies upon the defendant. It is not necessary for the plaintiff to prove falsehood. If the
matter is true the purpose or motive with which it was published is irrelevant. The defendant must show
that the imputation made by him was true as a whole and in every material part thereof. It is enough if the
statement though not perfectly accurate is substantially true. If there is gross exaggeration the plea of
justification will fail. If the statement is false it is no justification that the defendant honestly and on
reasonable grounds believed it to be true.
The maxim “the greater the truth, the greater the libel” never had an application to civil actions for damages.
In criminal law truth is only a justification if it is shown that the publication was for public good. According to
the Penal Code, it is not enough that the words complained of are true; the defendant must be prepared to
go further and prove that not only are the words true, but also that it is for public benefit that they should be
published.
(2) Fair and bona fide comment .—A fair and bona fide comment on matters of public interest is no libel,
however severe it may be in its terms, unless it is written intemperately and maliciously. (For matters which
are of public interest, see p. 280). The word ‘fair’ embraces honesty and also relevancy. The view
expressed must be honest and such as can fairly be called criticism. The question which should be
considered is—would any fair man, however prejudiced he may be, however exaggerated or obstinate his
views, have said that which criticism in question has said. The facts relating to the matter of public interest
must be correctly stated even though the opinion expressed in the comment be prejudiced or exaggerated
provided that it is honestly held by the writer. The comment must be bona fide and must not be used as a
cloak for malice. Legitimate criticism is no tort : should loss ensue to the plaintiff it would be damnum sine
injuria . But
(i) the words published must be fairly relevant to some matter of public interest;
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(ii) they must be the expression of an opinion, and not the allegation of a fact;
(iii) they must not exceed the limits of fair comment; and
(iv) they must not be published maliciously.
The law has developed the rule that comments may only be defended as fair if they are based on facts
(meaning true facts) stated or sufficiently indicated. It must be indicated with reasonable clarity by the
words themselves taking them in the context and the circumstances in which they were published that they
purport to be comment and not statement of fact. In Channel Seven Adelaide Pty. Ltd. v. Manock (2007) 82
ALJR 303 at 313.
(3) Privilege.— Where a person stands in such a relation to the facts of the case that he is justified in saying or
writing what would be slanderous or libellous in any one else, he is said to have a ‘privilege’. Privilege is of
two kinds : (1) absolute; and (2) qualified.
A statement is ‘absolutely privileged’ when no action lies for it even though it is false and defamatory, and
made with express malice, e.g. words spoken in Parliament, or in the course of judicial, military, naval or
State proceedings. This is based upon the principle that the interest of the community overrides the interest
of the individual.
A statement is said to be protected a ‘qualified privilege’ when no action lies for it, even though it is false
and defamatory, unless the plaintiff proves express malice.
‘Qualified privilege’ is accorded to matters which are not so important to the public as those that are
‘absolutely privileged’, and the speaker will not be liable if the statement is made bona fide and not
maliciously. These are (1) communication made (a) in the course of legal, social or moral duty, (b) for self
protection, (c) for protection of common interest, (d) for public good; and (2) reports of Parliamentary and
judicial proceedings, and proceedings at public meetings.
Difference between ‘absolute’ and ‘qualified’ privilege as follows:

(1) In the case of ABSOLUTE PRIVILEGE it is the occasion which is privileged, and once the nature of the
occasion is shown, every communication on that occasion is protected. But in the case of QUALIFIED
PRIVILEGE, the defendant cannot prove privilege until he can show how that occasion was used. It is not
enough to have an interest or duty in making a communication; the interest or duty must be shown to exist
in making the communication complained of.
(2) ‘ABSOLUTE PRIVILEGE’ is not affected by the presence of ‘express malice.’ A ‘qualified privilege’ is a
privilege rebuttable by proof of ‘express malice’ on the part of the defendant. The plaintiff must prove that
the defendant was actuated by ‘malice’. Recognised categories of absolute privilege are not to be lightly
extended. “The general rule is that the extension of absolute privilege is viewed with the most jealous
suspicion and resisted unless its necessity is demonstrated.
Absolute privilege.— Absolute privilege attaches to—

(1) Parliamentary proceedings
(2) Judicial proceedings
(3) Military or naval proceedings
(4) State proceedings
(5) Judicial report.
(1) Parliamentary proceedings.— Speeches in Parliament are absolutely privileged. But this privilege does
not extend to anything said outside the walls of the House, or to a speech printed and privately circulated
outside the House. A petition to Parliament, or to a Committee of either House, and statements of
witnesses before Parliamentary Select Committees are absolutely privileged.
Under the Parliamentary Papers Act 1840, all reports, papers and proceedings published by either House
of Parliament are absolutely privileged. Under the Parliamentary Proceedings Act, 1956, a person is not
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liable for publication in newspaper of a substantially true report of the proceedings in either House of
Parliament unless the publication is malicious.
Under 105 (2) of the Constitution of India, no member of Parliament shall be liable to any proceedings in
any Court in respect of anything said by him in Parliament.
(2) Judicial proceedings : Judge.— No action lies against a judge of a superior Court for words spoken on
the bench, even though it be alleged that he spoke maliciously, knowing his words to be false, and also
that his words were irrelevant and wholly unwarranted by evidence (Anderson v. Gorrie ). A Judge of an
inferior Court enjoys the same immunity in this respect as the judge of a superior Court so long as he has
jurisdiction over the matter before him. A Justice of the Peace, a Coroner, a Receiver, and a Juror, enjoy
the same privilege as the Judge of an inferior Court. The statements made by any one of them must be
relevant to the injury. The Madras and the Allahabad High Courts have followed this principle.
All the documents necessary to the conduct of a case, such as pleadings, affidavits, and instructions to
counsel are also absolutely privilege. Documents given to the other party on discovery or as otherwise
required by law in civil and criminal proceedings, whether used or unused at the trial, are privileged. But
documents which do not have any immediate link with possible judicial proceedings do not qualify for
absolute privilege. Taylor v. Serious Fraud Office , (1998); Waple v. Surrey County Council , (1998).
Advocate.— No action lies in England against an advocate for defamatory words spoken with reference to,
and in the course of, any inquiry before a judicial tribunal, even if they are uttered by him maliciously, and
not with an object of supporting the case of his client, and are uttered without any justification, or even
excuse, and from personal ill-will or anger towards the person defamed, and are irrelevant (Munster v.
Lamb. ).
The Madras High Court has adopted the above view (Sullivan v. Norton ). The Bombay High Court has held
that an advocate has the fullest liberty of speech in the course of a trial before a judicial tribunal so long as
his language is justified by his instructions, or by evidence, or by proceedings on the record (Bhaishanker v.
Wadia ). The Patna High Court has adopted the same view. The Allahabad High Court has held that if a
pleader makes a defamatory remark during examination of a witness which is entirely uncalled for he will be
liable (Rahim Bakhsh v. Bachcha Lal ).
Solicitor. —Solicitors acting as advocates have the same privileges as counsel.
Party.— No action lies in England against a party conducting his own case for statements made in open
Court, no matter how false or malicious or irrelevant to the matter in issue the words complained of may
have been (Royal Aquarium v. Parkinson ). The privilege of parties is confined to what they do or say in the
conduct of the case.
The Madras High Court has adopted this view. The Lahore High Court had ruled that a remark made by a
party, wholly irrelevant to the matter under inquiry and uncalled for by any question put by the Court is not
privileged. The Calcutta High Court has not definitely decided this point.
Witness. —A witness in the box is absolutely privileged in answering questions asked to him by the
counsel on either side. For any statement voluntarily made by him he will be protected if it is relevant to the
matter in issue. But an observation made by a witness before entering or after leaving the box is not
privileged.
According to the Bombay High Court no action lies against a witness in respect of words spoken by him in
the witness-box. The Calcutta, the Allahabad and the Madras High Courts have held that statements made
by witnesses in the witnessbox are protected only if they are relevant to the inquiry.
Affidavits.— Affidavits sworn in the course of a judicial proceeding before a Court of competent jurisdiction
, as well as pleadings, are absolutely privileged even though they contain statements alleged to have been
made falsely and maliciously, and without any reasonable or probable cause. The privilege does not extend
to affidavits containing scandalous matter.
The High Courts of Bombay, Madras and Allahabad have decided that no action lies for statements in
pleadings. The Madras High Court has laid down that there is no difference between evidence given in the
box and the evidence on affidavit in that they are both absolutely privileged. The Allahabad High Court had,
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in a Full Bench case, held that a person presenting a petition to a criminal Court is not liable in a civil suit
for damages in respect of statements made therein which may be defamatory of the person complained
against. The Rangoon High Court was of the same view. The Calcutta High Court, however, is of opinion
that such statements are not absolutely privileged; they should be relevant to the inquiry.
(3) Military proceedings. —All acts done in the honest exercise of military or naval authority; reports made in
the course of military or naval duty; and statements, whether false or malicious, made before a military or
naval Court-martial are absolutely privileged.
(4) State proceedings. —For reasons of public policy absolute protection is given to every communication
relating to State matters made by one minister to another or to the Government. It is doubtful whether a
Government resolution enjoys an absolute privilege or a qualified one.
The court will refrain from inquiring into the merits of an internal document of a foreign embassy particularly
when the law of nations as reflected in Article 24 of the Vienna Convention on diplomatic relations required
embassy documents to be treated as inviolable and thus absolutely privileged.
(5) Judicial reports. —A fair and accurate contemporaneous report of the proceedings in a public Court
published in any newspaper is entitled to an absolute privilege.
Qualified privilege. —The plea of qualified privilege attaches to the following cases:—
(1) Communications made in the course of duty, when circumstances are such as to cast on the defendant
the duty of making the communication to a third party. The duty may be legal, social or moral. For instance,
a public officer may be under a legal duty to address to another a statement of facts pertinent to a matter
which it is his duty to investigate; and he will be protected if he made the statement honestly in the belief of
its truth. Communications made in pursuance of a duty owed to society relate to character of servants,
confidential matter of a private nature, and information as to crime.
(2) Communications made in self-protection.— Here the statements made may be necessary to protect the
defendant's private interests; or they may be statements provoked by the plaintiff by any previous attack on
the defendant; or they may be statements invited by the plaintiff in answer to any application or inquiry from
him.
(3) Communications made in protection of common interest. Every communication made bona fide upon any
subject-matter, with the object of protecting an interest common to the writer or speaker and the
person to whom it is made is privilged. The privilege extends only to a communication upon the privileged
subject.
The common interest may be in respect of family affairs, money matters, profession or any right or duty
recognized by law. But this privilege is lost if the statement is made to an unnecessarily large number of
persons and thus spread broadcast.
(4) Communications made to persons in public position for public good are privileged, e.g. information
given for the purpose of redressing grievances or punishing crime or securing public morals.
(5) Fair reports of judicial proceedings, Parliamentary proceedings, and quasi- judicial proceedings.
A fair, bona fide , and impartial report of proceedings in any Court of Justice is privileged, except where the
matters given in evidence are (i) of a grossly scandalous, blasphemous, seditious or immoral tendency, or (ii)
publication is expressly prohibited by the order of any Court.
A fair and accurate report of proceedings or debates in either House of Parliament is privileged . Such
publication is privileged on the principle that the advantage of publicity to the community at large outweighs any
private injury resulting from publication.
Under the Constitution of India no person is liable to any proceedings in any Court in respect of the publication by or
under the authority of either House of Parliament of any report of proceedings.
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The publication of a true, accurate and bona fide report of proceedings of quasi- judicial bodies and of public
meetings is privileged if it is fair, accurate, and not indecent or blasphemous. A newspaper report of a judicial
proceeding is privileged and this privilege includes reporting of counsel's speeches as well as statements by
witnesses.
Consent. —It is a defence that the plaintiff expressly or impliedly consented to the publication complained of.
Apology.— The defence of apology is allowed under two English enactments and in India as part of common law.
An accepted apology is a defence.
Remedies for defamation.— One of the remedies is a suit for damages and the other is an injunction restraining
publication.
Only the person defamed has the right to sue and not those who are incidentally affected. For example, where a
lady is defamed, neither her father, nor husband can sue.
The amount of compensation depends upon the nature and character of the libel, the extent of circulation, the
position in life of the parties and the surrounding circumstances. Filing of a criminal complaint does not affect
damages. But where no loss has been caused and the defendant has been convicted, no damages may be
allowed. The sum allowed must compensate the injured party for the damage to his reputation, vindicate his good
name, take account of the distress, hurt and humiliation which the defamatory publication has caused. The gravity
of the libel has to be kept in mind. The extent of publication is also a relevant factor. John v. M.S.N. Ltd ., (1996).
According to a researcher libel awards have touched such astronomical figures in some countries that they are
operating as a curb on press freedom.
Damages will be aggravated by the malicious and deliberate character of the attack and by the subsequent
persistent conduct of the defendant, by his refusal to listen or apologize.
Damages are mitigated by the fact of apology, absence of malice, retaliation, provocation and plaintiff's bad
reputation.
An injunction may be granted under the Specific Relief Act, 1963 to prevent the publication of a libel where it is a
part of the conspiracy between certain persons to harm the plaintiff so that its publication will be unlawful or when
its publication would be an offence under the Indian Penal Code, 1860.
According to the High Court of Australia, for grant of an interlocutory injunction it must be held that there is a serious
question to be decided, that damages will not be an adequate remedy for injury suffered and that balance of
convenience lies for grant of injunction. Australian Broadcasting Corporation v. O Neill, (2006) 80 ALJR 671.
Joint action.— In the case of a slander, the several speakers cannot be sued jointly, for one cannot be held liable
for the words of another. However, where special damage is caused by the conjoint action of more than one
person, they may be sued jointly.
In libel each is liable for the entire publication and, therefore, all may be sued jointly. Where more than one persons
are defamed together, they have to file separate cases.
CHAPTER XIII
MALICIOUS PROCEEDING
Malicious proceeding is the malicious institution against another of unsuccessful criminal or bankruptcy or
liquidation proceeding, without reasonable or probable cause. In such an action the plaintiff has to prove—
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(1) That he was prosecuted by the defendant. An investigating officer is not liable unless he was a party to the
falsity of the case. A pathologist preparing a post mortem report or a person appearing merely as a witness
cannot be held to be a prosecutor. The expression proceeding covers security and sanction and those
under Cr.P.C. like those under ss. 144 and 476. Proceedings under other Acts, such as the Municipal Act,
also come under this principle. A malicious reporter to the police for getting a prosecution launched on the
basis of his evidence is within the catch of the principle.Martin v. Watson, (1995).
(2) That the proceedings terminated in his favour if they are capable of such termination. He need not prove
acquittal, for a prosecution may be determined in various ways.
There is one exception to the rule that the prosecution must have terminated favourably to the plaintiff,
namely, where the proceeding in respect of which the action is brought is ex parte . In such a case the
result naturally terminates unfavourably to the plaintiff.
(3) That there was no reasonable or probable cause for the prosecution.
Reasonable cause is such as would operate on the mind of a discreet man; probable cause is such as
would operate on the mind of a reasonable man. The case of Abrath v. North Eastern Ry . lays down that a
defendant will be deemed to have had reasonable and probable cause when,—
(a) he took care to be informed of the facts;
(b) he honestly believed his allegations to be true; and
(c) the facts were such as to constitute a prima facie case.
The existence of reasonable and probable cause does not avail to the prosecutor who prosecuted in
ignorance of it. The dismissal or abandonment of a prosecution does not create any presumption of the
absence of reasonable and probable cause nor does an acquittal for want of evidence. Reasonable and
probable cause means that there are sufficient grounds for thinking that accused was probably guilty but
not that the prosecutor necessarily believed in the probability of conviction. “Probable cause” is not the
same thing as “sufficient cause”. The question of the existence of such cause has to be determined upon
the facts known to the prosecutor at the time of launching the prosecution. The fact that the police officer
acted on the advice of superior officers is relevant to negative want of reasonable cause unless it is proved
that the particular police officer did not himself honestly believe that the plaintiff was guilty of an offence.
Ravinder Kumar Sharma v. Sate of Assam , (1999).
(4) That the prosecution was instituted with a malicious intention, i.e. from an indirect and improper motive, and
not in furtherance of justice. It will be sufficient that the party was actuated either by spite or ill-will towards
an individual (Hicks v. Faulkner ).
There cannot be any set of rules or guidelines for proof of malafides or malice as it depends on the facts
and circumstances of the case. West Bengal Electricity Board v. Dalip Kumar Roy , AIR 2007 SC 976 :
(2007) 14 SCC 568 [LNIND 2006 SC 1039].
From a want of reasonable and probable cause a Court may infer malice, but not e contra .
(5) That he has suffered in person, reputation, or pocket, where the proceedings are other than criminal
proceedings, e.g. bankruptcy proceedings.
Damage.— The damage need not be necessarily pecuniary. Damage to person, or reputation or to trade and
property is enough. Damage may also be to a man's profession, such as the profession of legal or medical
practitioner.
Damages.— In an action for malicious prosecution, damages can be claimed under three heads, damage to
reputation, to person and to property including expenses of litigation.
Malicious prosecution is distinguishable from false imprisonment:—

(1) Malicious prosecution is wrongfully setting the criminal law in motion; false imprisonment is wrongfully
restraining the personal liberty of the plaintiff.
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(2) In malicious prosecution the plaintiff must prove the non-existence of reasonable and probable cause; in
false imprisonment the onus lies on the defendant of proving its existence, as his justification (Hicks v.
Faulkner ).
(3) A person becomes liable to an action for false imprisonment by setting a ministerial officer in motion; but by
setting a judicial officer in motion he renders himself liable to an action for malicious prosecution (Austin v.
Dowling ).
(4) Malice is an essential ingredient in an action for malicious prosecution; but not in that of false imprisonment.
Malicious civil proceedings.— An action does not lie for maliciously and without reasonable and probable cause
instituting an ordinary civil suit; but in respect of a false or vexatious claim, the Court can award compensatory costs
(section 35A of the Civil Procedure Code ). Such a suit will lie if there is damage to credit or reputation, or arrest of
person, or seizure of property. If suit is brought on the advice of legal advisers it cannot be said to have been
instituted without reasonable or probable cause though the advice proves to be wrong.
Malicious legal process.— An action lies for putting into force the process of the law maliciously and without any
reasonable and probable cause to the prejudice of another's person or property. Termination of the proceedings in
favour of the plaintiff is essential.
Section 95 of the Code of Civil Procedure also gives a summary remedy to a defendant to get compensation where
an arrest or attachment before judgment has been effected or a temporary injunction has been granted—
(1) if such arrest, attachment or injunction was applied for on insufficient grounds, or
(2) if the plaintiff fails in the suit and there was no reasonable or probable ground for instituting it.
Malicious arrest.— Malicious arrest is wilfully putting the law in motion to effect the arrest of another, under civil
process, without reasonable and probable cause. It is not actionable unless it involves interference with liberty.
The plaintiff must show—

(1) that the original action, out of which the injury arose, was decided in his favour;
(2) that the arrest was procured maliciously and without reasonable and probable cause; and
(3) that the damage or injury sustained was something other than an injury which has been, or might have
been, compensated for by an award of the costs of suit, that is, he has suffered from collateral wrong.
If a person sets the process of a Court in motion and wrong person is arrested, he is only responsible if he obtained
such process fraudulently and improperly. If he truly states the facts and the Judge thereupon does an erroneous
act, he is not liable.
Malicious search.— An action lies for maliciously searching a house. It has long been recognised to be an
actionable wrong to procure the issue of a search warrant without reasonable and probable cause and with malice.
Gibbs v. Rea , (1998).
Malicious process against property.— Where a person maliciously and without reasonable and probable cause,
by means of civil proceedings, procures execution or distress against the property of another, an action will lie
against him for damages.
A party to a suit is liable, though he acts innocently or mistakenly if by his order the officer of the Court takes the
goods of the wrong person, a stranger, in execution. Proof of malice is not necessary when the property of a
stranger is taken in execution. But, if the Court, after having all the facts as to the right of a defendant to particular
movables brought before it were to order the attachment of specified property or decide as to the right of such
attachment, the order would be the act of the Court and the decree-holder would not be liable. If property wrongfully
attached is sold, the owner of the property so sold is entitled to sue either for the restoration of the same specifically
or for damages. Bank of India v. Lakshmanidass , (2000).
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Obtaining temporary injunction.— A suit for damages for wrongfully obtaining a temporary injunction is
maintainable.
Obtaining erroneous decision.— No action lies against any person for procuring an erroneous decision of a Court
of Justice. A Court of Justice is not the agent or servant of the litigant who sets it in motion so as to make that
litigant responsible for the errors of law or fact which the Court commits.
Damages.— In awarding damages for malicious arrest expenses for obtaining discharge are taken into account. In
the case of goods, their value at the time of attachment, any damage and depreciation of value are taken into
account.
Abuse of legal process.— In this tort the legal process in its proper form is used to accomplish some improper
purpose for which it was not designed. It is not necessary to prove want of reasonable and probable cause, or
termination of proceedings in plaintiff's favour. This tort will not arise where the real object is within the scope of the
legal process set in motion, e.g. landlord filing another suit for eviction.
Misfeasance in public office.— An administrative order which has been found to be invalid or void does not
constitute a tort. This tort is committed when a public officer acts with malice and with intent to injure and the
plaintiff is in fact damaged, and also when the public officer knows that his act is invalid and it will cause injury to
the plaintiff. The power wrongfully exercised need not be statutory; it may even be a power under a contract. Abuse
of power with intent to harm will invite this liability. The abuse of discretionary power vested in a Minister, e.g.
allotment of petrol pumps, has been held to be a misfeasance. The Supreme Court made the Minister to pay a
heavy fine for the same to the State Common Cause, A Regd. Society v. Union of India , (1996). The cases on this
tort were reviewed in Three Rivers District Council v. Bank of England , (1996). The relevant features of the tort
were summarised in terms of basic propositions. (see pp. 345-346) A three-judge Bench of the Supreme Court did
not record a finding of misfeasance in public office against a Minister in allotting petrol outlets out of his
discretionary quota. Such quota is meant to provide immediate relief to a needy party (e.g. a war widow) as and
when an applicant comes before the Minister. The element of discretion could not be ruled out. He was not liable to
compensate the State. Common Cause, A Registered Society v. Union of India , (1996).
The tort of misfeasance in public office is not a tort actionable per se . Damage is an essential ingredient of the tort
as recently reaffirmed by the House of Lords in Watkins v. Secretary of State for the Home Department, (2006) 2 All
ER 353 (H.L.). Damage will mean financial loss or physical or mental injury which is described as ‘material damage’
an expression understood to include recognized psychiatric illness but not distress, injured feelings, indignation or
annoyance. In this case the claimant was a prisoner. The confidentiality of his legal correspondence was protected
under the Prison Rules. He claimed damages for misfeasance in public office against the prison officers, who had
opened his correspondence in breach of the Prison Rules and the Secretary of the State. The claimant was unable
to prove any material damage resulting from the action of the prison officers and the House of Lords held him not
entitled to damages. It was pointed out that the lack of remedy in tort did not mean that there was no other remedy.
The action of prison governor was amenable to judicial review and the prison officers were amenable to disciplinary
proceedings. The claimant may also in such a case base his claim under the Human Rights Act and claim
compensation but not exemplary damages in accordance with the practice of Strasbourgh court if the evidence
showed an egregious and deliberate abuse of power by public officers.
Though in India also damage to the claimant may be regarded as a necessary ingredient of the tort of misfeasance
in public office but a case like Watkins in India may have succeeded for Indian courts allow damages for mental
agony which may not amount to psychiatric injury under the English Law. (See text).
CHAPTER XIV
DOMESTIC RIGHTS
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Wrongs relating to domestic rights relate to the invasion of—

(1) Marital rights
(2) Parental rights
(3) Right to the services of servants
(4) Seduction of female child and female servant
(1) Marital rights.— Violation of marital rights can take place in three ways—
(a) Abduction, or taking or enticing away a man's wife.
(b) Adultery, or criminal conversation with her.
(c) Physically injuring or otherwise abusing her.
(a) The common law gives a husband a right of action against any person who takes away his wife by force or
fraud. Similarly, he can sue any one who persuades or entices the wife to live separate from him without
sufficient cause. The gist of the action is the loss of the consortium of the wife, which term implies an
exclusive right against an invader to her affection, companionship, and aid. Per quod consortium amisit
(whereby he has lost the benefit of her society) was an allegation used in all such actions.
A wife has a right of action for deprivation of her husband's society. The right of consortium is a mutual right
of husband and wife, and if any one violates it, either husband or wife can sue for damages for that wrong.
(b) For adultery, the common law gave to the husband a writ of trespass vi et armis against the adulterer. But
this action has been abolished by the Divorce and Matrimonial Causes Act, which enables any husband,
either in a petition for dissolution of marriage, or for judicial separation, or in a petition limited to such object
only, to claim damages from the adulterer. But a wife cannot bring an action for damages solely in respect
of adultery committed with her husband. In India under R. 9 framed under the Hindu Marriage Act, 1955,
damages may be claimed against the alleged adulterer.
A woman who has been seduced cannot herself maintain an action against her seducer because seduction
implies consent.
(c) The common law allows a husband to bring an action for physical injury caused to the wife. If by
maltreatment the husband is deprived for any time of the company and assistance of his wife, the common
law gives him a separate remedy by an action for damages for such maltreatment. The wife can sue for
injury caused to her and the husband for the loss of her society and service (consortium et servitium ).
These two actions may be brought separately or together. Damages for adultery are always exemplary.
The state of affection between husband and wife is also taken into account.
(2) Parental rights.— The common law gives a remedy to parents for the seduction of their children. For
injuries to children a remedy to the parent was developed through a fiction of service due from child to
parent. Proof of living under the father's roof is sufficient evidence of service.
(3) Right to services.— Every person who maliciously, or with notice, interrupts the relation subsisting
between a master and servant—
(i) by procuring the servant to depart from the master's service, or
(ii) by harbouring and keeping him as servant after he has quitted it, and during the time stipulated for as
the period of service (Lumley v. Gye; Bowen v. Hall ; Temperton v. Russell ), or
(iii) by beating or confining him in such a manner that he is rendered incapable of performing his work,
commits a wrongful act.
Where injury is caused to the servant, the master may maintain an action of trespass vi et armis , in which he must
allege and prove special damage he has sustained by injuries to his servant (per quod servitium amisit ). But a
master cannot maintain an action against a wrongdoer for injuries causing death of his servant capable of
performing services (Osborn v. Gillet ).
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Wrongful dismissal of servant.— An action can be maintained by a servant who is wrongfully dismissed.
Dismissal is jusifiable if misconduct on the part of the servant is grave. A Government servant in India holds office
during the pleasure of the President, or the Governor, as the case may be, and is liable to be dismissed at any time
without notice and without reason assigned. The right to dismiss is, however, subject to the procedural protection
contained in the Constitution of India (Art. 311).
Seduction.— In the case of female children, the father or guardian, and in the case of female servants, the
employer has a right of action for seduction. To support such action two things are necessary—
(1) proof of actual service of some kind, however slight, at the date of seduction; and
(2) the child or servant must have been rendered ill and incapable of rendering service in consequence of the
seduction. The relation of master and servant or that of parent and child must exist both at the date of
seduction.
In the case of parents the action is based upon a bare fiction of service, and in the case of master upon an actual
contract of service. Loss of service must be alleged and proved at the trial, otherwise the plaintiff will fail. In the
language of the old writs he sues per quod servitium amisit (for that he has lost service). A girl under twenty-one is
presumed to be in the service of her father or guardian whenever she is not actually in the service of another (Terry
v. Hutchinson ; Dean v. Peel ). In the case of a minor daughter her parents’ right to her services automatically
revives upon the termination of any contract of service under which she may be employed. Where the girl is not
under twenty-one, some slight service must be proved, e.g. making tea or milking cows. A de facto relation of
service is enough, the plaintiff need not prove a binding contract of service. Where the girl is in the service of one
man at the time of seduction, and of another at the time of pregnancy and illness, no action lies (Davies v. Williams
). A woman cannot herself maintain any action in respect of her own seduction on account of the maxim volenti non
fit injuria , she being a consenting party, nor can a mother, if the seduction took place during her husband's lifetime,
as she is merged in her husband according to common law.
A person standing in the relation of loco parentis , or a putative father, even though he is not married to the girl's
mother, can recover damages for an injury of this nature.
In this action the Courts generally award exemplary damages. Damages are not restricted to loss of services only.
Distress and anxiety, disgrace and dishonour, etc. are also taken into account.
Interference with subsisting contract.— Procuring a breach of contract is an actionable wrong unless there be
some justification for interfering with the legal right. The justification which will be sufficient to exonerate a person
from liability for his interference with the contractual rights of another must be an equal or superior right in himself,
and it will not be sufficient for him to show that he acted bona fide or without malice, or in the best interests of
himself or others, or on a wrong understanding of his own rights. A violation of legal right committed knowingly
gives a cause of action, and it is a violation of legal right to interfere with contractual relations recognized by law if
there be no sufficient justification for interference (Quinn v. Leathem ). It is sufficient that breach of contract is
induced knowingly and wilfully.
The tort may be committed either by a direct intervention or by indirectly preventing performance or by obstructing
the performance of the contract by one party.
Three categories of cases.— The first is direct intervention by persuasion as distinguished from a mere advice.
The second is an unlawful act upon the property of a party which disables him from performing, such as taking
away his tools. The third is that the intervener persuades a third person to do any of those things which cause
breach or obstruct performance.
Conditions to be proved.— The first is direct or indirect intervention; second, defendant's knowledge of the
subsisting contract; third, intention to interfere; fourth, plaintiff must show special damage; fifth, plaintiff must
overcome the defence of justification, if any. There is no liability where a party to the contract, having the right to do
so, is lawfully terminating the contract.
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Justification .—Defendant cannot escape liability merely by showing that he acted in good faith and without malice
or under a mistaken understanding of his legal rights. The existence or otherwise of a justification depends upon the
good sense of the Tribunal which in turn depends upon the whole facts and features of the contract.
It is no justification that there was no malice, ill will or intention to injure in the defendant or that he was pursuing his
own or the contract breaker's best commercial interests. Justification has been held to exist where there is a moral
duty to intervene and where the contract interfered with is inconsistent with a previous contract with the interferer.
Intimidation.— Intimidation means threatening a person by unlawful means to do an act which causes harm to the
doer himself or to some other person. Threatening breach of contract for forcing the other party to submit falls in
this category. Intimidation of any kind is highly objectionable, whether it is practised by open threat of violence or
subtle means (Rookes v. Bernard ). However, in England under the Trade Disputes Act, 1965, such a tort will not
be actionable when done by a person in contemplation or furtherance of a trade dispute.
Conspiracy.— A conspiracy is an unlawful combination of two or more persons to do that which is contrary to law,
or to do that which is wrongful and harmful towards another person, or to carry out an object not in itself unlawful by
unlawful means. A conspiracy to injure differs widely from an invasion of civil rights by a single individual because a
number of things not in themselves unlawful if done separately may with conspiracy become dangerous and
alarming. Numbers may annoy and coerce where one may not. The mere act of conspiracy is not subject of a civil
action. There must be—
(1) some act in pursuance of the conspiracy; and
(2) actual damage to the plaintiff. It is the damage wrongfully done, and not the conspiracy, that is the gist of
action (Gregory v. Brunswick , the hissing case). There must be some overt act or acts causing damage
and done in pursuance of a conspiracy.
No action for conspiracy lies against persons who act in concert to damage another and do damage to him, but who
at the same time merely exercise their own rights by lawful means and who infringe no rights of other people, e.g.
an act done for the purpose of protecting and extending trade (Mogul Steamship Co. v. Mcgregor , the shipping
combine case). But a combination, not in pursuit of trade interests, but in pursuit merely of malicious purpose to
injure another would be clearly unlawful, and if an injury has resulted, an action lies, e.g. , a combination without
justification or excuse to injure a man in his trade by inducing his customers or servants to break their contracts with
him, or not to deal with him or continue in his employment (Quinn v. Leathem ). The effect of Quinn v. Leathem is
nullified, so far as trade unions are concerned, by the Trade Disputes Act, 1906 (UK).
The decision in Sorrell v. Smith lays down: (1) a combination of two or more persons wilfully to injure a man in his
trade is unlawful and, if it results in damage to him, is actionable. (2) If the real purpose of the combination is not to
injure another but to forward or defend the trade of those who enter into it, then no wrong is committed and no
action will lie, although damage to another ensues, provided that the purpose is not effected by unlawful means. A
threat to effect a purpose which is in itself lawful gives no right of action to the person thereby injured.
In the Mogul Steamship case what the combination did was done in the way of commercial competition. In Allen v.
Flood, the conduct of the defendant was not actionable as his object was to promote his own trade interest however
malicious or bad his motive might have been. In Quinn v. Leathem, there was a deliberate intention to injure. In
Sorrell's case as well in Thorne's case the essential features were the absence of an intent to injure and the
presence of the purpose to promote legitimate trade interests.
Unlawful means conspiracy.— This refers to cases where the aim is good but the means employed are unlawful,
for example, illegal labour strike for a good cause. The result depends upon facts (Rohtas Industries v. Rohtas
Industries Staff Union ). Unless the predominant purpose is to injure the plaintiff, there is no liability for the tort of
conspiracy although the means employed by the combination are themselves actionable as tort. Metal and Rohstaff
A.G. v. Donaldson etc. Inc.
The (English) Trade Disputes Act of 1906 and the (Indian) Industrial Disputes Act, 1947 create an exception to the
foregoing principles in cases of trade disputes.
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More recently the House of Lords held that the Revenue and Customs Commissioners could take recourse to
unlawful means conspiracy and claim damages when the defendant was involved in a number of carousel (or intra-
European Community missing trader) frauds for evading payment of VAT (Value Added Tax) even if the
Commissioners could not recover the same under the statutory tax regime. Revenue and Customs Commissioners
v. Total Network SL , (2008) 2 All ER 413 (HL).
Right of business, occupation, etc.— Where a malicious act is done damaging a man's occupation, profession,
or way of getting a livelihood, an action lies.
Right to exclusive office or dignity.— The invasion of an exclusive right to an office or dignity to which
emoluments are attached is a ground for an action. No action will, however, lie to vindicate a right, not to an office,
but to a mere dignity unconnected with any fees, profits or emoluments.
Rejection of Unified Theory of Economic Torts and Recognition of loss of unlawful means conspiracy as
Independent Tort.— The torts of ‘Interference with subsisting contract’, ‘Intimidation and Interference with Trade,
Business or occupation by unlawful means’ as discussed above can now be placed under two heads namely (1)
‘Inducing breach of contract (Lumley v. Gye, 118 ER 249 : (1843-60) All ER Rep. 208tort ) and (2) ‘causing loss by
unlawful means’. The unified theory which treated inducing breach of contract as one species of a more general tort
of actionable interference with contractual rights and thereby covered even cases of interference with contracts by
unlawful means has now been rejected and cases of interference with contracts by unlawful means has been
recognized as an independent tort by the House of Lords in OBG v. Allan, (2007) 4 All ER 545.
As a result of the recognition of the tort of ‘causing loss by unlawful means’ as a separate tort and confining the tort
of ‘inducing the breach of contract’ to the Lumley v. Gye tort, all cases earlier coming under the heads of torts of
‘intimidation’ and ‘interference with trade or business or occupation by unlawful means’ can now be seen as a
variant of and will fall under the tort of ‘causing loss by unlawful means’. Further, this new tort will also cover those
cases earlier coming under the tort of ‘interference with subsisting contract’ in which the defendant is sued not as
accessory to the party committing the breach of contract but for his primary liability for acts which are independently
unlawful.
CHAPTER XV
TORT TO REALITY OR IMMOVABLE PROPERTY
Torts purely affecting real or immovable property are:

1 Introduction
2 Trespass
3 Trespass ab initio
4 Dispossession
5 Injury to reversionary right
6 Waste
7 Injury to natural rights and easements
1 Introduction.— Torts affecting immovable property arise either by disturbance or usurpation of the right to
hold or possess it.
2 Trespass to land (trespass quare clausum fregit ) is the wrongful and unwarrantable entry, upon the land of
another, or any direct and immediate act of interference with the possession of land.
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It may be committed by
(1) entering upon the land of the plaintiff, or
(2) remaining there, or
(3) doing an act affecting the sole possession of the plaintiff, in each case without justification.
To constitute this wrong, neither force nor unlawful intention, nor actual damage, nor the breaking of an enclosure is
necessary. Every invasion of private property, be it ever so minute, is a trespass. In the question of trespass, or no
trespass, not the amount of the alleged trespass, is alone material. The plaintiff must establish—
(1) exclusive possession of himself or of his servant or agent; and
(2) entry, actual or constructive.
Trespass to land is founded upon possession, not upon title. An apprehended trespass furnishes no ground of
action. Trespass by a man's cattle is dealt with similarly to trespass committed by himself.
The use of public streets including pavements for any purpose other than public passage is a trespass and the local
authority can remove the obstruction.
Aerial trespass.— The owner of land is entitled to the column of air space above the surface ad infinitum . But his
right is restricted to such height as is necessary for the ordinary use and enjoyment of his land, and the structure on
it. Thus, the projection of an advertisement board into the air space of the plaintiff's shop was held to be trespass.
An air-craft passing at a height which does not disturb is not trespass. The Indian Air-craft Act gives this protection
but imposes penalty upon any man wilfully flying in such way as to cause damage to person or property. The Civil
Aviation Act also imposes liability on those wilfully causing damage to person or property.
Continuous obstruction on land.— In respect of a continuous obstruction on land, a fresh action of trespass may
be brought de die in diem , and recovery in a former action is no defence.
Joint-tenants or tenants in common.— They can sue one another in trespass for acts done by one inconsistent
with the rights of the other, e.g. destruction of buildings, carrying away of soil, or expulsion of the other or his
servant from the land, or out of the common house. Where a joint-owner or co-sharer has erected a building on joint
land which is detrimental to the enjoyment of the joint-property, the Court can order its demolition.
Trespass by animals.— If a man's cattle, poultry etc. trespass into another's close, he is liable for the trespass,
unless the owner was under a duty to fence. The rule is not applicable to cattle straying on a road and to dogs and
cats. A man who brings animals on a road is bound to take care of them. The law is contained in the Cattle
Trespass Act, 1871. An owner of trespassing beasts was held liable for the infection caused by them to the animals
there.
Remedies.— The person whose land is trespassed upon may—

(1) Bring an action for trespass against the wrong doer.
The wrongdoer cannot set up jus tertii (right of possession outstanding in some third person) as against the fact of
possession in the plaintiff.
(2) Forcibly defend his possession against a trespasser.
(3) Forcibly eject him (expulsion).
(4) Distress damage feasant.
Execution of legal process.— Entry under a legal process is justifiable. An officer executing a legal process
cannot break the outer doors but he may break the inner doors after he has entered into a house. The house of
every one is to him his castle and fortress as well for his defence against injury and violence, as for his repose. If a
person is arrested and then escapes, the officer on a fresh pursuit may break open any doors to re-take him. If the
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officer who has made a lawful entry into a house is forcibly ejected after he has obtained entrance he may break
open outer doors to re-enter. Inner doors of the house of a stranger cannot be opened upon suspicion that the
defendant is there. Similarly, the officer cannot enter into the house of a stranger on suspicion of finding the
defendant's goods. The privilege is accorded only to a dwelling house or anything attached to it (Semayne's case).
Distress is a remedy for the performance of a duty, or the satisfaction of a demand, which consists in the taking of
a personal chattel from the possession of the defaulter as a pledge for the performance or satisfaction. The thing
can be sold if the default continues. Distress is one of the most ancient and effectual remedies for the recovery of
rent. A landlord may divest himself of this right.
Distress damage feasant.— Distress damage feasant is a remedy by which, if cattle or other things be on a man's
land encumbering it or otherwise doing damage there, he may summarily seize them and retain them as a pledge
for the redress of the injury he has sustained. Any thing animate or inanimate which is wrongfully on the land of
another and is doing damage may be distrained for such damage. This right is founded on the principle of
recompense. It can be exercised by a person who has a sufficient possession of land to entitle him to maintain an
action of trespass. It does not, however, give any right of sale. The distress must be taken at the time when the
damage is done; for, if the damage was done yesterday and the distress taken today, it would be illegal. One may
distrain in the night; but a distress for rent can be made during the day only. Distress damage feasant is not allowed
against a party having any colour of right.
In India this right does not exist. But the Cattle Trespass Act, 1871 makes provision regarding the impounding of
cattle doing damage. The owner has the right to take back his cattle from the pound-keeper after paying his
charges.
Defences.—
(i) Prescription
(ii) Leave and licence
(iii) Authority of law
(iv) Acts of necessity
(v) Self defence
(vi) Re-entry on land
(vii) Re-taking of goods and chattels
(viii) Abating a nuisance.
It may be shown that the entry was justified by reason of prescription.
Licence means permission and that makes entry lawful. Permission for a specific period cannot be revoked before
its expiry, for example, licence by ticket for witnessing a particular show.
Execution of legal process is an example of authority of law (See under Remedies above).
Acts of necessity allow entry without consent, e.g. putting out fire for public safety, defence of the realm etc.
A trespass may be excused as having been done in self defence or in defence of man's goods, chattels or animals.
A man who is dispossessed may re-enter his land. He can also recover his possession by a summary remedy
under the Specific Relief Act or Criminal Procedure Code.
A person may enter another's land for retaking his goods and chattels.
Abating a nuisance is the removal of the nuisance by the injured party. It should be peaceable, without danger to
life and limb and if entry into the land of another is necessary, after giving notice to him.
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1 Trespass ab initio . —When entry, authority, or licence is given to any one by law, and he abuses it, he
becomes a trespasser ab initio , i.e. the authority or justification is not only determined but treated as if it
had never existed, and he is in the position of a perfect stranger acting without excuse or justification. His
misconduct relates back so as to render his original entry tortious. (In Chick Fashions’ case, a doubt has
been expressed about this doctrine of relation back). The rule rests upon this, that the subsequent illegality
shows the party to have contemplated an illegality all along, so that the whole becomes a trespass. Where
authority is not given by law, but by a party, and abused, then the person abusing such authority is not a
trespasser ab initio . The abuse necessary to render a person trespasser ab initio must be a misfeasance
and not a non-feasance (Six Carpenter's case, the tavern wine case). This doctrine has been applied to the
lord of a manor taking an estray, and to a sheriff remaining in a house in possession of goods taken
execution for an unreasonably long time.
2 Dispossession.— Dispossession or ouster is wrongfully taking possession of land from its rightful owner.
The dispossession applies only to cases where the owner of land has, by the act of some person, been
deprived altogether of his dominion over the land itself, or the receipt of its profits. A person cannot be
dispossessed of immovable property unless he was possessed thereof at the time.
The party dispossessed can bring an action of ejectment to recover possession of the land. It is not finally settled
whether jus tertii is or is not a good defence to an action of ejectment, but in the following cases it cannot be set up
at all—
(1) Landlord and tenant. The landlord need not prove his title but only the termination of the tenancy.
(2) Licensees cannot dispute the title of the persons who licensed them.
There is a conflict of opinion between the High Courts whether the plaintiff in the suit for possession of immovable
property is entitled to succeed merely upon proof of previous possession and dispossession or whether he is bound
to prove title.
The Bombay, Madras, Allahabad, Patna and Rangoon High Courts have held that possession is a good title against
all persons except the rightful owner, and entitles the possessor to maintain an action for ejectment against other
than such owner who dispossessed him.
The Calcutta High Court has laid down that mere previous possession will not help the possessor except under S. 6
of the Specific Relief Act, which entitles him to recover possession if the suit is brought within six months from the
date of dispossession.
The Privy Council has, however, ruled that the plaintiff in an action for ejectment must recover by the strength of his
own title and not on the weakness of his adversary.
Adverse possession for 12 years extinguishes the title of the owner, Extinguishment of title by adverse possesion
also extinguishes any claim for mesne profits including a claim for any period prior to extinguishment of title.
(Limitation Act, 1963).
A trespasser who enters another's land and cultivates it is bound to hand over the value of the user to the person
entitled to the land.
The position in regard to suits for prohibitory injunction relating to immovable property was summarised by the
Supreme Court in Anathula Sudhakar v. P. Bucchi Reddy, (2008) 4 SCC 594 [LNIND 2008 SC 748] : AIR 2008 SC
2033.
1 Injuries to reversionary.— Injuries to reversionary interests are done either by strangers or by tenants.
Whenever any wrongful act by a stranger is necessarily injurious to the reversion to land, or has actually
been injurious to the reversionary interest, the reversioner may sue the wrong-doer. The owner of a
lifeestate or interest is not allowed to destroy, consume or otherwise permanently impair the corpus or
substance of the subject-matter, so as thereby to leave it to the remainderman or to the reversioner in a
worse state than it would otherwise have been left. The plaintiff suing as reversioner must show that—
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(1) by the acts complained of his reversionary estate and interest were depreciated or lessened in value;
and
(2) the injury complained of was of a permanent character.
2 Waste is a spoil or destruction in houses, gardens, trees or other corporeal hereditaments, by a tenant to the
disherison of him that hath the remainder or reversion. The injury to the inheritance must be either by—
(1) materially diminishing the value of the estate; or
(2) changing the character of inheritance; and
(3) increasing the burden upon it; or
(4) impairing the evidence of title.
Waste is either—
(1) Voluntary, which is an offence of commission, it consists in the active doing of something, as by
pulling down houses, doors, and such other fixtures; or
(2) Permissive, which is an offence of omission only; it consists of a mere passive act, e.g. allowing a
house to go to rack and ruin by reason of non-repair as by allowing it to fall for want of repairs.
Action for waste must generally be brought by the person next entitled in remainder, and, if the latter has only a life-
estate, he is only entitled to such damages as are commensurate with the injury done to his life-estate. It is no
answer to such an action to say that the value of property is enhanced by the changes made. The lessor is entitled
to have the premises kept in the state in which he demised them.
In India an action for waste formerly could be maintained by reversioner against Hindu widows. After the Hindu
Succession Act, 1956, such actions do not lie because Hindu widows now become full owners under S.14 of the
Act.
1 Wrong to easements.— The most important natural rights and easements relating to property, the invasion
of which is treated as wrong, are—
(1) Right to support
(2) Right to water
(3) Right to free access of light and air
(4) Right of way
(5) Right of privacy
1 Right to support.— Right to support may be of—
(i) land by land;
(ii) buildings by land;
(iii) buildings by buildings; and
(iv) land and buildings by water.
(i) Land by land.— Support of land may be either a lateral support of land by adjacent land; or the vertical
support of the surface by subsoil, where the property in the two is distinct.
Every proprietor of land is entitled of common right to such an amount of lateral support from the adjoining
land of his neighbour as is necessary to sustain his own land in its natural state , not being weighted by
walls or buildings. This is a natural right. This right is not an absolute right; and the infringement of it is not
actionable without appreciable damage. A right of support in extension of the natural right may be acquired
by prescription or grant.
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As regards the right of vertical support , the owner of the surface is entitled of common right to the support
of the subjacent strata, so that the owner of the subsoil and minerals cannot lawfully remove them, without
leaving support sufficient to maintain the surface in its natural state . But the owner of the subsoil is not
bound to support any buildings, unless the owner of the surface has acquired the right of support for them
by grant or prescription. Where the owner of the land grants the subsoil he impliedly grants reasonable
means of access to it. The owner of the surface cannot dig holes into the subsoil to a greater extent than is
reasonably necessary for a proper and fair use, e.g. cultivation. No right of action lies until some actual
damage has been sustained by the owner of the surface. Proof of pecuniary loss is not necessary if actual
subsidence is proved. Whenever a fresh subsidence occurs, although proceeding from the original act or
omission, a new cause of action accrues in respect of the damage done thereby, and the period of
limitation begins to run afresh (Darley Main Colliery Co. v. Mitchell ).
(ii) Buildings by land.— Support of buildings by land may be either by adjacent soil, or by subjacent soil. The
natural right to support exists in respect of land only, and not in respect of buildings. If land not expressly
granted for building purposes is weighted with buildings, the owner of the surface has no right to additional
support necessary for the maintenance of the buildings. If the owner of the subsoil in working mines leaves
sufficient support for the surface, but the land sinks in consquence of the weight of the buildings that have
been erected on it, the owner of the subsoil is not responsible for the damage done. But if the weight of the
building does not cause the sinking of the land, and the land would have fallen in even though the buildings
were not in existence, the defendant is liable to the extent of the injury done to both land and buildings.
A right to support for buildings may, however, be acquired as an easement by
(1) grant, express or implied;
(2) prescription (Angus v. Dalton ).
(iii) Buildings by buildings.— The right to support of buildings by buildings is not a natural right, but may arise
from grant or prescription. Where two houses, erected by different owners stand in juxtaposition, they in
fact stand each on its own ground, and there is no right of support for the one by the other. But the mere
fact of contiguity of buildings imposes an obligation on the owners to use due care and skill in removing
one building not to damage the other, even though no right to support has been acquired. If one man builds
two or more houses, each needing the support of the other and then if he sells one, it is presumed that he
reserves for himself and grants to the buyer the right of mutual support. If he sells several such houses to
several persons at different times, each has the same right of support. Damage is necessary to give rise to
a right of action.
(iv) Land and buildings by water.— An owner of land has no right at common law to the support of
subterranean water. The right of vertical support does not extend to have the support of any underground
water which may be in the soil so as to prevent the adjoining owner from draining his soil, if for any reason
it becomes necessary or convenient for him to do so. But if there is wet sand, or running silt, or natural
pitch, instead of water, an action will lie if any subsidence is caused by its removal.
1 Rights to water.—
Rights to water relate—

(1) to surface water; and
(2) to subterranean water.
Surface water includes—

(i) Natural watercourses or streams.
(ii) Artificial watercourses.
(iii) Water not flowing in any defined channel.
Subterranean water includes—

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(i) Subterranean streams the courses of which are well known and clearly defined.
(ii) Subterranean streams the courses of which are undefined.
(iii) Percolating water the course of which is underground, undefined, and unknown.
(i) Natural streams.— A natural stream is one which arises at its source from natural causes, and flows in a
natural channel. Every landowner has a natural right to the uninterrupted flow, without diminution,
deterioration in quality, or alteration, of the water of natural surface streams which pass to his land in
defined channels, and to transmit the water to the land of other persons in its accustomed course. This is
known as a riparian right, and it arises from the right of access to a stream which landowners on its banks
have by the law of nature. Riparian owners are entitled to use and consume the water of the stream for
drinking and household purposes, for watering their cattle, for irrigating their land, and for purposes of
manufacture; subject to the conditions that—
(1) the use is reasonable;
(2) it is required for their purposes as owners of the land; and
(3) it does not destroy or render useless, or materially diminish, or affect the application of the water by
riparian owners down the stream in the exercise either of natural right or their right of easement, if any.
A right to pollute a natural stream may be acquired by grant or prescription. If the rights of a riparian
proprietor are interfered with he may maintain an action even though he has suffered no actual loss.
(ii) An artificial stream is one that arises by the agency of man, or though arising from natural causes, flows in a
channel made by man. The law governing artificial watercourses depends upon whether they are of a
permanent or temporary character, and upon the circumstances under which they are created. If an
artificial stream is permanent in its character, a right to an uninterrupted flow of water may be acquired by
prescription or grant against both the originator of the stream, and also against any person over whose
land the water flows. If it is of a temporary character, no right could be acquired by prescription.
(iii) The right to surface water standing on the soil, or not running in a defined channel, is in the owner of the
soil. It is the natural right of every owner of land to collect and retain all water on the surface which does
not pass in a defined channel. He may also allow it to flow away in the usual course of nature upon the
lower lands of his neighbour and is not bound to prevent it from so doing. He cannot do this, however, by
an artificial discharge upon his neighbour's land unless he has acquired an easement which his neighbour
is bound to submit to.
An owner of land on a lower level to which surface water from adjacent land on a higher level naturally flows is not
entitled to deal with his lands so as to obstruct the flow of water from the higher land. This principle applies to all
lands whether situate in the country or in towns.
(i) Subterranean water.— The law as to a subterranean stream, the course of which is well known and clearly
defined, is similar to that of natural streams flowing above ground.
The principles applying to a subterranean stream, the course of which is unknown and undefined, and to
percolating water in an unknown course are the same. There is no natural right to the uninterrupted flow of such
streams or water. Nor can such a right be acquired by prescription, though it may be acquired by express grant.
The right of an owner of land to divert or appropriate the percolating water within his own land is the same whether
his motive be to improve his land or to injure his neighbour maliciously (Corporation of Bradford v. Pickles ). But (1)
he is not entitled to pollute water flowing also beneath another's land, and (2) he will be restrained from drawing off
underground water from his neighbour's land, if, in doing so, he abstracts water which has once flowed in a defined
surface channel.
Pollution of water Environment.— The interpretation of Fundamental Right to life in Article 21 of the Constitution
to include enjoyment of pollution free environment has given a new dimension to this right. T.N. Godavarman
Thirumulpad v. Union of India, (2006) 1 SCC 1 [LNIND 2005 SC 735] : AIR 2005 SC 4256; Noise Pollution, In re,
(2005) 5 SCC 733 : AIR 2005 SC 3136. The right of a riparian owner to use water does not include the right to
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pollute it. Even subterranean water cannot be polluted. Pollution means altering the natural quality of water in such
way as to make it unfit or less fit for its ordinary known purposes. Water (Prevention and Control of Pollution) Act,
1974 prohibits the use of any stream or well for disposal of polluting matter. Wide definition has been given of the
expression “stream of water” so as to include all waters whether flowing or stagnating. Injunctive orders can be
granted in this respect. (M.C. Mehta v. Union of India. ) By the Act 44 of 1978 the restriction on discharging
effluents into a stream was extended to discharges into sewers and on land. To implement the decisions taken at
the UN Conference on Human Environment in so far as they relate to the protection and improvement of
environment and prevention of hazards to human beings, other living creatures, plants and property, a
comprehensive Act, the Environment Protection Act, 1986 was enacted by the Parliament under which the term
“environment” includes water, air and land. In Indian Council for Environmental Act ion v. Union of India , (1996),
heavy compensation was allowed to farmers whose crops were damaged because their source of irrigation waters
was polluted by industries. Direction for enforcement of the Act were issued in M.C. Mehta v. Kamal Nath , (1996)
and Jagannath (1996). In Yellore Citizen's Welfare Forum v. Union of India , (1996) directions were issued for
preventing pollution by tanneries and other polluting industries in Tamil Nadu. The court ruled for “sustainable
development” as a balancing concept between ecology and devel opment which requires conformity with two basic
principles, viz ., “the precautionary” principle and the “pollutor pays” principle.
The Central Government has framed the Noise Pollution (Regulation and Control) Rules, 2000 which provides
for silence zones viz. an area comprising not less than 100 metres around hospitals, educational institutions and
courts and restricts the use of loudspeaker or a public address system except after obtaining written permission of
the competent authority. Interference by the court in respect of noise pollution is premised on the basis that a citizen
has certain rights being ‘necessity of silence’, ‘necessity of sleep’, ‘peace during sleep’ and ‘rest’ which are
biological necessities essential for health and constitute human right. Farhad K. Walia v. Union of India, (2009) 2
SCC 442 : (2009) 5 Mahlj 1 : (2009) 76 AIC 254 : (2009) 12 JT 534.
With the object of protecting the benefits arising to mankind from forests, whenever forestland is permitted to be
diverted for non-forest development activities, the user agencies are required to pay for compensatory afforestation
as also net present value (NPV) of forest land diverted for non-forestry purposes. The underlying principle for
recovery of NPV is that plantations raised could never adequately compensate for the loss of natural forests as the
plantations require more time to mature and even then they are a poor choice for natural forest. The Supreme Court
gave detailed direction in these matters in Godavarman case. Another recent case T.N. Godavarman Thirumulpad
v. Union of India, (2006) 5 SCC 47 [LNIND 2006 SC 259] : (2006) 4 JT 454 in relation to concept of ‘sustainable
development’ relates to the protection of Kolleru lake which is one of the longest shallow fresh water lakes in Asia
located between the delta of Krishna and Godawari rivers in the State of Andhra Pradesh.
1 Right to air and light.— Every owner of land has a natural and common law right that the air which passes
over his land shall not be polluted by other persons, and any person who pollutes it is guilty of a wrongful
act. The right to air is coextensive with the right to light.
An owner of land or buildings has no natural right to free passage of air over open adjoining land, e.g.
passage of air to an ancient windmill or chimney. Access and use of air to and for any building may be
acquired by—
(a) grant, express or implied;
(b) covenant;
(c) custom; and
(d) prescription.
Where such a right to uninterrupted air is acquired, an infringement of it will give rise to an action. The
owner of a house cannot by prescription claim to be entitled to the free and uninterrupted passage of a
current of wind. He can claim no more air than what is sufficient for sanitary purposes. The right to the
purity of air is not violated unless the annoyance is such as to interfere materially with the ordinary comfort
of human existence.
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Light.— At common law the owner of land has not any right to light. The right to light is acquired as an
easement in augmentation of the ordinary rights incident to the ownership and enjoyment of land. An owner
of ancient lights is entitled to sufficient light according to the ordinary notions of mankind, for the
comfortable use and enjoyment of his house as dwelling-house, if it is a dwelling-house or for the beneficial
use and occupation of the house, if it is a warehouse, a shop or other place of business.
The right to light is a right to be protected against a particular form of nuisance. It may be acquired by—
(a) grant or covenant, express or implied;
(b) prescription; and
(c) reservation on the sale of the servient tenement.
To constitute an actionable obstruction of ancient lights there must be a substantial deprivation of light,
enough to render the occupation of the house uncomfortable according to the ordinary notions of mankind,
and, in the case of business premises, to prevent the plaintiff from carrying on his business as beneficially
as before (Colls v. Home and Colonial Store , the forty-two feet high building case).
No alteration in the dominant tenement will destroy the right to light. The real test is identity of light and not
identity of aperture or entrance for the light. The right to a special amount of light necessary for a particular
business cannot be acquired by prescription.
The 45 degrees rule. —A building is not supposed to constitute a material obstruction in the eye of the law
if its elevation subtended an angle not exceeding 45 degrees at the base of the light alleged to be
obstructed, or in other words when opposite to ancient lights a wall is built not higher than the distance
between that wall and the ancient lights. This rule is not applicable to every case but is used as prima facie
evidence (Coll's case). Though not a positive rule of law it is a circumstance which the Courts have taken
into consideration in India.
2 Right of way.— A person commits a wrong who disturbs the enjoyment of a right of way by blocking it up
permanently or temporarily, or by otherwise preventing the free use of it. But a private person cannot bring
an action for obstruction to a public way without showing any particular or special inconvenience or injury
to himself beyond that suffered by any member of the public. Such special damage must differ not merely
in degree but in kind from that sustained by the rest of the public.
The Madras High Court laid down in a Full Bench case that a person or body of persons who claim a right
to go in procession along a public way can bring a suit to establish that right against a person who
threatens to obstruct it without allegation or proof of special damage. This view has been upheld by the
Privy Council.
Rights of way are never given by law by owners of land, but they are discontinuous easements, and may be
acquired by—
(a) grant;
(b) immemorial custom;
(c) necessity; or
(d) prescription.
In the case of an obstruction to a private right of way, proof of special damage is not material.
The House of Lords has held: “the law to be that the public highway is a public place which the public may
enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private
nuisance and does not obstruct the highway by unreasonably impending the primary right of the public to
pass and repass; within these qualifications there is a public right of peaceful assembly on the highway.”
Director of Public Prosecution v. Jones, (1999) 2 All ER 257 (HL).
In recent years this right of user of highway has been misused in India by harmful agitations bandhs etc.
causing destruction of public and private property sometime personal injury and death. The Supreme Court
in Destruction of Public and Private Properties in Re. v. State of Andhra Pradesh, (2009) 5 SCC 212
[LNIND 2009 SC 882] : AIR 2009 SC 2266 : 2009 Crlj 2807 took suo motu notice of this menace and issued
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certain guidelines to be observed until they are substituted by statutory provisions. The guidelines are given
in the text.
3 Right of privacy and confidentiality.— Invasion of privacy by opening a window is not an act of which the
English law takes cognizance as a wrongful act. But under the Indian Easements Act such a right can be
acquired by virtue of a local custom. It has been recognized in Gujarat, Uttar Pradesh, Punjab and Bengal,
but not in Patna or Madras. The right of privacy can be used to prevent Government interference. The
European Convention on Human Rights provides that the right to respect for private and family life, home
and correspondence, should not be interfered with by a public authority unless it is necessary for overriding
public purpose s. 21 of the Constitution of India operates to leave an individual free from unauthorised
interference by Government machinery.
The courts have also recognised that an obligation of confidence can arise out of particular relationship
apart from contract and breach of confidentiality can be prevented by restraining by injuction, publication of
confidential information to the detriment of the plaintiff. The particular relationships which give rise to an
obligation of confidence may be commercial, matrimonial or even political. For example, trade secrets from
being sold or exploited by an employee.
In R. Rajgopal v. State of Tamil Nadu , (1995) the Supreme Court reaffirmed that the right to privacy is
implicit in the right to life and liberty guaranteed to the citizens under Article 21. No one has a right to
publish, without consent, whethertruthful or otherwise, anything about the private life of a person, his family,
marriage, procreation, motherhood, child bearing and education.
The relationship of doctor and patient gives rise to the right of confidentiality. The doctor is under a duty not
to disclose the secrets of a patient that have come to his knowledge in the course of his professional work.
But there is no breach of this duty when the disclosure is made to save a person from a serious and
identifiable risk of infection from the patient. Mr. X v. Hospital Z , (1999). Solicitors and accountants also
owe a continuing professional duty to their clients to preserve the confidentiality of information and not to
misuse it. Susca Finance Ltd. v. KPMG , (2000).
4 Right of prospect.— A right of prospect does not exist at common law nor can it be acquired by prescription.
Profits a prendre .— It is a right to take something off the land of another person, e.g. , right to cut away
turf or wood from another's land. Under Indian law such rights fall into a category of easements. It cannot
be acquired by custom or prescription.
Of the two accepted classes of this right, one is the right of common . It is a right which one person, who
is not the owner, has of taking some part of the natural produce of land belonging to another.
Right of pasture is an example. Right of fishery another. It is simply a right to catch fish. A person
commits a wrong when he fishes in another's fishery or otherwise disturbs it. Under English law it is known
as profits a prendre and under Indian law, easement. It can be acquired by grant. The public right to fish in
sea is common and is not the object of property. It must be exercised in a reasonable and fair manner so
that all may have equal share. A summary action under S. 6 of the Specific Relief Act, 1877 lies for
restitution of possession of an exclusivefishery.
Right of ferry is the exclusive right to carry passengers and goods across a river or arm of the sea etc. It is
an incorporeal right. It arises by grant or prescription. This right is an immovable property within the
meaning of S. 6 of the Specific Relief Act. Some of the High Courts are of the view that it can be acquired
only by Government grant. Disturbance of a ferry is an actionable wrong.
Right of market is the right to hold a fair or market in a particular area of a town. It could have been
acquired in England by immemorial enjoyment or prescription. The Calcutta High Court has held that no
exclusive right of this kind can be acquired either by prescription or by Government grant. Bringing goods
for sale very near the market, but not in the market, so as to avoid toll is a fraud for which an action lies by
the owner.
Torts affecting personality or movable property are—
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CHAPTER XVI
TORTS TO PERSONALITY OR MOVABLE PROPERTY
Trespass to goods (trespass de bonis asportatis ) is an unlawful disturbance of the possession of goods by
seizure or removal or by a direct act causing damage to the goods. An action for trespass will also lie for taking or
injuring domiciled and tame animals. It is immaterial whether the injury is caused by the defendant or by an animal
belonging to him. The plaintiff must show—
(1) That he was in possession, actual or constructive, of the goods. There is a constructive possession of goods
in all cases where there is a legal right to possess.
(2) That his possession has been wrongfully disturbed.
The fact that the trespass was unintentional is no ground of defence.
A joint-owner can maintain an action of trespass against his co-owner if the latter has done some act inconsistent
with the joint ownership, except when
(1) the chattels have been completely destroyed, or
(2) there has been a sale of the chattels in market overt.
The defences to an action of trespass are:—

(1) Rightful claim.
(2) Self-defence or defence of property.
(3) Exercise of one's absolute or relative rights.
(4) Obedience to some legal or personal authority.
(5) Negligent or wrongful act of the plaintiff himself.
(6) Reception of goods.
The defence of jus tertii can be set up against a plaintiff who has himself neither actual nor constructive possession
of the chattels.
A person who lawfully takes a chattel but afterwards abuses or wastes it renders himself a trespasser ab initio .
Conversion is an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with
the right of another, whereby that other is deprived of the use and possession of it. Actual possession or an
immediate legal right to possession being necessary for enabling a person to sue, a claim for conversion of goods
is not maintainable by a person who had merely an equitable interest in them against another who had acquired
legal title to the goods as a bona fide purchaser for value without notice of the prior equitable claim. Mcc Proceeds
Inc v. Lehman Bros. International Europe , (1998). But a thief or a receiver of stolen property in possession has a
possessory title which is good against all the world except the true owner and so he can sue every other person for
conversion. Costella v. Chief Constable , (2001).
The tort of conversion applies only to chattels and does not extend to cover the appropriation of chosen in action.
OBG Ltd. v. Allan, (2007) 4 All ER 545 (HL).
(1) When the property is wrongfully taken . The taking need not be with the intention of acquiring a full
ownership. It is enough if any interest is claimed inconsistent with the right of the person entitled. The
taking may be constructive merely, but a taking unaccompanied by an intention to exercise permanent or
temporary dominion is not conversion. Actually dealing with another's goods as owners, for however short
a time, under a mistaken supposition of being lawfully entitled, or even with the intention of benefiting the
true owner, would amount to conversion.
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Where a person took an assignment to which he had no right and then refused to deliver it even after a
demand notice, it was conversion.
If a principal ratifies the sale of a chattel which the vendor had no right to sell, it is conversion though at the
time of sale he was not aware of the unlawfulness.
(2) When the property is wrongfully parted with . If a man hands over goods to another so as to give him some
right over the property itself, whether as owner or dominus pro tempore , it amounts to conversion.
Misdelivery by a carrier will amount to conversion.
(3) When the property is wrongfully sold although not delivered in market overt, the property passes to the
purchaser by sale, which is therefore equivalent to physical destruction. Where the pledgee sells the
pledged property without notice to or authority of the pledger, it will amount to conversion, where a person
lopped off the branches of his neighbour's tree and partook of its fruits, he was guilty of conversion.
(4) When the property is wrongfully retained . The plaintiff must prove that the defendant having it in his
possession refused to give it up on demand made by him (Armory v. Delamire , the jewel case). The
demand as well as the refusal should be unconditional in their terms. A demand and refusal do not in
themselves constitute conversion. They are evidence of conversion at some previous period. An
unqualified refusal is always conclusive evidence of conversion, though not a qualified, reasonable, and
justifiable refusal. A finder of any chattel, who is not trespasser acquires a right to keep it only if it had been
abandoned. But the finder's right is lost if there is any person who has a superior right to the chattel. The
finder is, however, entitled to retain it as against the whole world except the true owner. The principle of
“finders keepers” does not apply if the chattel was found at a place where public entrance was banned.
(5) When the property is wrongfully destroyed . Every wilful and wrongful destruction of a chattel, or wilful and
wrongful damage to it, whereby the owner is deprived of the use of it in its original state is a conversion of
it, e.g. taking wine from a cask and filling it with water.
(6) When there is denial of the lawful owner's right . There may be conversion of goods even though the
defendant has never been in physical possession of them, if his act amounts to an absolute denial and
repudiation of the plaintiff's right. This has been changed by s. 13(3) of the Torts (Interference with Goods)
Act, 1977 (UK) under which a mere denial of title is not conversion.
Interference with a chattel, coupled with a denial of the owner's right, is conversion.
Unlawful user of the goods of another in a manner which may render them liable to forfeiture also amounts to
conversion.
In all the above six cases the defendant's ignorance of the unauthorized character of his act cannot always be
relied upon as a defence. But to maintain an action for conversion, the plaintiff should have a right of property in the
thing converted and also a right of possession.
The defendant can plead any of the following defences :—

(1) Lien, either general or particular
(2) Right of stoppage in transit
(3) Denial of plaintiff's right to property
(4) Distress
(5) Sale in market overt. The purchaser in such a case cannot be sued for conversion, though the seller can be.
In India the principles laid down in the Indian Sale of Goods Act will apply where a person sells goods to
which he has no title.
Trespass differs from conversion—

(1) Trespass is a wrong to the actual possessor and cannot be committed by a person in possession.
Conversion is a wrong to the person entitled to immediate possession.
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(2) Trespass consists in damaging or meddling with the chattel of another without intending to exercise adverse
possession over it. Conversion is a breach, made adversely, in the continuity of the owner's dominion over
the chattel, though it may not be hurt.
(3) In trespass the gist of action is the force and direct injury inflicted, in conversion it is the deprivation of the
use.
Detention is the adverse withholding of the goods of another. The remedy is an action of detinue . This action lies
for the specific recovery of chattels wrongfully detained by the party sued, or by his servants or agents, from the
person entitled to the possession of them, and also for the damage occasioned by the wrongful detainer. It is
immaterial whether the goods were obtained by the defendant by lawful means, as by a bailment or finding, or by a
wrongful act as a trespass or conversion. The injury complained of is not the taking nor the misuse and
appropriation of goods, but only the detention. The plaintiff must show—
(1) a special and general property in the goods; and
(2) a right to the immediate possession of them.
Trespass de bonis asportatis i.e. wrongful taking of goods is wrongful ab initio , whilst in detinue possession is
acquired rightfully but detention of the goods is wrongful.
There should be evidence of a request on the part of the plaintiff to have the goods delivered to him, and of a
refusal to deliver on the part of the defendant.
But the defendant can plead successfully his lien on the goods. Detinue does not substantially differ from
conversion by detention.
Torts affecting movable as well as immovable property.
These are—
(1) Slander of title
(2) Slander of goods
(3) Conspiracy
(4) Maintenance
(5) Intimidation
CHAPTER XVII
TORTS AFFECTING IMMOVABLE AS WELL AS MOVABLE PROPERTY
Slander of title consists of a false and malicious statement in writing, printing or by word of mouth, injurious to any
person's title to property, whether movable or immovable, and causing special damage to such person. The plaintiff
must prove:—
(1) That the statement is false. It is for the plaintiff to prove it to be so, not for the defendant to prove it to be
true.
(2) That the statement was made mala fide and was malicious. There must be express or implied malice. If the
statement is made in the bona fide assertion of the defendant's own right, real or supposed, to the
property, no action lies.
(3) That the statement goes to defeat his title to property which may be either real or personal, and the plaintiff's
interest therein may be either in possession or reversion.
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An action for slander of the title differs from an action for defamation in several respects; see p. 450.
Slander of goods consists of a false statement, disparaging a man's goods, published maliciously, and causing
him special damage. This is also known as ‘trade libel’. It is not actionable for a man to commend his own goods, or
to advertise that he can make as good articles as any other person in the trade. To maintain an action for slander of
goods it is necessary to prove—
(1) That the defendant disparaged the plaintiff's goods.
(2) That such disparagement was false.
(3) That it was made maliciously.
It is not necessary to prove actual malice, it is sufficient if the statement is made without reasonable cause.
Maintenance is the officious assistance by money or otherwise, proffered by a third person to either party to a suit,
in which he himself has no legal interest, to enable them to prosecute or defend it. Where a person agrees to
maintain a suit in which he has no interest, the proceeding is known as maintenance ; where he bargains for a
share of the result to be ultimately decreed in a suit in consideration of assisting in its maintenance, it is styled
champerty . Every champerty is maintenance, but every maintenance is not champerty: for champerty is but a
species of maintenance, which is the genus. Both these tend to encourage litigation which is not bona fide but
speculative.
The law of maintenance is confined to cases where a man improperly, and for the purpose of stirring up litigation
and strife, encourages others to bring actions or to make defences, which they have no right to make. Malice is said
to be of the essence of the action, but the law will imply malice upon proof of officious assistance (Bradlaugh v.
Newdgate , the oath case). But the maintainer can justify his action by showing—
either (1) that he had a common interest in the action with the party maintained, e.g. master for a servant or vice
versa , an heir, a brother, a son-in-law, a fellow-commoner if defending right of common, a landlord defending his
tenant in a suit for title, or
(2) that he was actuated (a) by motives of charity, bona fide believing that the person maintained was a poor man
oppressed by a rich one, or (b) by religious sympathy.
An action for damages for maintenance will not lie in the absence of proof of special damage.
The doctrine does not apply to criminal proceedings.
Indian law. —The English law of maintenance and champerty is not in force in India. A fair agreement to supply
money to carry on a suit, in consideration of the lender having a share of the property sued for, if recovered is not
opposed to public policy and therefore not void.
Two circumstances must exist—

(1) The agreement should not be extortionate or unconscionable so as to be inequitable against the borrower.
(2) It should have been made with the bona fide object of assisting a claim and not for the purpose of gambling
in litigation or of injuring others (Ram Coomar v. Chunder Canto; Rajah Mohkan v. Raja Rupsingh;
Raghunath v. Nilkanth ).
CHAPTER XVIII
TORTS TO INCORPOREAL PERSONAL PROPERTY
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Incorporeal rights like easements are known to the common law and they have given rise to incorporeal rights like
copyright and rights to trade marks and trade names. Statutes have also created rights which in themselves are
rights to property, e.g. patents, copyright and registered trade marks. They are statutory forms of incorporeal
property being created, protected and made terminable by statute.
CHAPTER XIX
NEGLIGENCE AND ALLIED TORTS
Negligence in general is the breach of a duty caused by omission to do something which a reasonable man,
guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do. An action for negligence proceeds upon the idea of
an obligation or duty on the part of the defendant to use care, and a breach of it to the plaintiff's injury. Negligence,
therefore, amounts to the absence of the care which a prudent and reasonable man would take in the
circumstances. The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness
only where there is a duty to take care and where failure in that duty has caused damage. It is not necessary that
the duty neglected should have arisen out of a contract between the plaintiff and the defendant. However, the duty
may arise, whether by a statute or otherwise, if it exists and is neglected to the injury of the plaintiff, he has a right
to sue for damages. There cannot be liability for negligence unless there is a breach of some duty. Negligence in
law is, therefore, (1) a breach of a duty, (2) unintentional, (3) producing injury to another. The law of negligence is
really the application of common morality and commonsense to the activities of the common man. If an act is done
by a person and is such that he cannot reasonably foresee that he will thereby injure another, he will not be liable
whether he does the act intentionally or inadvertently.
A contingent liability arising from Negligence is not as such an actionable damage until the contingency occurs. Law
Society v. Sepliton & Co., (2006) 3 All ER 401 (HL). In cases where damage occurs before the victim really knows
that he has suffered damage, the law generally allows that the time for a claim would start running from the point
the claimant came to know the essence of the act or omission to which the damage was attributable. Haward v.
Fawcetts (a firm), (2006) 3 All ER 497 (HL). Cause of action for negligence accrues when damage that is real
damage, as distinct from purely minimal damage, is suffered. A state of anxiety produced by some negligent act or
omission but falling short of a clinically recognisable psychiatric illness does not constitute damage sufficient to
complete a tortious cause of action.
Existence of duty.— The existence of duty is governed by the test laid down in Donoghue v. Stevenson , (1932).
One has to avoid acts or omissions which one can reasonably foresee would injure any person likely to be affected
by the conduct. In Hedley Byrne & Co. Ltd. v. Heller & Partners , (1964) a new duty of care was thrown on the
shoulders of professionals to take care in reference to those who depend upon them in the formulation of their
opinions and advice. The proximity of relationship has been considered to be the guiding principle. The House of
Lords in their third significant contribution in Home Office v. Dorset Yacht Co. Ltd. , (1970) added that after the
proximity test is satisfied the Court has only to see whether there are any policy considerations against liability. The
principle is general and is, therefore, applicable equally to new situations; Anns v. London Borough of Merton ,
(1970). The principle has been accepted in India also. Madhya Pradesh Road Transport Corpn. v. Basanti Bai
proximity does not mean physical proximity, but functional. Thus matters would go by reasonable forseeability.
Accordingly where nervous shock is caused to a distant person, liability would follow if it was reasonably
foreseeable (Melaughlin v. O'Brian ).
In reference to economic loss, the general approach is that the defendant is not liable unless he is under a positive
duty to prevent it. The owner of a premises was held not liable when thieves entered from the unoccupied area of
his premises into the adjoining shop and removed costly articles. (P. Perl (Exporters) Ltd. v. Camden London
Borough Council ), (1983). In Yuen Kum-Yen v. A.G. of Hongkong , (1987) the Privy Council held that the
commissioner who was regulating companies taking deposits from public and having the power to refuse or revoke
Page 63 of 82
registration of such companies owed no duty of care to the depositors who lost their deposits as the company in
question was run fraudulently and speculatively. There was no close and direct relationship of proximity between
the commissioner and prospective depositors. This was followed in Davis v. Radcliffe , (1990) where the Board
regulating and licensing banks in the exercise of statutory powers was held not liable to depositors who lost their
deposits on the failure of the bank. In Hill v. Chief Constable of West Yorkshire , (1988) the constable was held not
liable to the mother who lost her child at the hands of a murderer who could not be detected for his earlier murders
on account of errors in investigations. Followed in Calveley v. Chief Constable of Merseyside Police , (1989). In
Caparo Industries Plc v. Dickman , (1990) auditors and accountants were held not liable to persons who invested
and lost their money in a company on the basis of the financial statements prepared by them and which turned out
to be false. It has been suggested that the law should develop novel categories of negligence incrementally and by
analogy with established categories rather than by a massive extension of the prima facie duty of care restrained
only by indefinable considerations which ought to negative, or to reduce or to limit the scope of the duty or the class
of persons to whom it is owed. (Sutherland Shine Council v. Heyman , (1985) High Court of Australia).
These principles were approved and applied by the House of Lords in reference to building cases. (Smith v.
littlewoods Organiation Ltd ., (1987). The net result can be summed up in terms of the following propositions : There
are three requirements necessary to establish the duty of care : (1) forseability of harm; (2) proximity in relationship,
which implies that the parties are so related that it is just and reasonable that the duty should exist and (3) policy
considerations do not negative the existence of such duty.
Anns case was finally overruled as being one of pure economic loss. This happened in Murphy v. Brentwood
District Council , (1990) in which the council was held not liable to the purchaser of a defective building only by
reason of the fact that the council was controlling and regulating building construction. In Invercargil City Council v.
Hamlin , (1996) it was observed that in Canada it is wellestablished that a Municipality may be liable for economic
loss caused by the negligence of a building inspector. In Marc Rich & Co. AG v. Bishop Rock Marine Co. Ltd. ,
(1995), a classification society's surveyor made error in permitting a ship to continue its voyage after temporary
repairs with the consequence that it sank and the cargo was lost. The society was held to be not liable to the cargo
owner. Similarly, a Highway Authority which had the statutory power under the Highways Act to remove
obstructions was held not liable for a consequent accident which was caused by an earth bank which obstructed the
view and which the Authority did not use its power to remove. Stevin v. Wise , (1996).
It has been observed by Fleming in his book THE LAW OF TORTS : “No one has ever succeeded in capturing any
precise formula, or, in other words, a comprehensive text for determining whether there exists between two parties
a relationship sufficiently proximate to give rise to a duty of the kind necessary for actionable negligence.” Citing
Sullivan v. Moody , (2001).
Breach of duty.— The plaintiff has next to show that there was a breach of duty, which means failure to observe
expected standard of care. The standard by which to determine whether a person has been guilty of negligence is
the conduct of a prudent man in the particular situation. The amount of care may vary to the greatest extent, while
the standard itself remains the same. The prudent man is the man who has acquired the skill to do the act which he
undertakes. If a man has not acquired the skill to do a particular act he undertakes, then he is imprudent, however
careful he may be and however great his skill in other things. The question to be raised with regard to a man's
conduct brought in question is, whether a prudent or careful or diligent man of his calling or business or skill would
have undertaken to do the things in question, supposing the party to have exercised due care in executing the work
undertaken.
The degree of care which a man is required to use in a particular situation varies with the obviousness of the risk. If
the danger of doing injury to the person or property of another by the pursuance of a certain line of conduct is great,
great care is necessary. If the danger is slight, only a slight amount of care is required. Thus owners or occupiers of
real property must not act in such a way as to cause injury to the person or property of others. The care that will be
required of them will be the care that an ordinary prudent man is bound to exercise. But persons who profess to
have special skill or who have voluntarily undertaken a higher degree of duty are bound to exercise more care than
an ordinary prudent man.
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Good sense and policy of the law impose some limit upon the amount of care, skill, and nerve, which are required
of a person who has to encounter a sudden emergency. In a moment of peril and difficulty the Court should not
expect perfect presence of mind, accurate judgment, and promptitude. If a man is suddenly put in an extremely
difficult position and a wrong order is given by him, it ought not to be attributed to him as a thing done with such
want of nerve and skill as to amount to negligence. If in a sudden emergency a man does something which he
might, as he knew the circumstances, reasonably think proper, he is not to be held guilty of negligence because,
upon review of the facts, it can be seen that the course he had adopted was not in fact the best. In the
commercialised world, the degree of care would also be determined by reference to the price charged for services,
e.g. a five star hotel owes a very high degree of care for the safety of its guests. Klaus Mittelachert v. East India
Hotels Ltd. , (1997).
Public policy also precludes a claimant to claim damages for the loss or damage which he suffers as a result of his
criminal act and sentence imposed by a court even though the criminal act may have been done under the mental
stress caused by the defendants negligence. Gray v. Thames Trains Ltd., (2009) 4 All ER 81 (HL).
For examples of different types of situation involving breach of duty, e.g. police duty of care in conduct of
investigations, duty of railway to man level crossings, duty of local corporations to take care of road side trees, duty
of prison authorities towards jail inmates, that of Fire Brigade in its operations, that of statutory corporation in their
commercial operations, see the text.
Strict liability
Rationale.— The rationale of strict liability is that those who resort to hazardous activities must pay their way
regardless of any fault. It resembles negligence because risks involved are so obviously inherent as to be
foreseeable, but with this difference that the defendant would be held liable even if he could not by reasonable care
have avoided the damage.
The rule originated in Rylands v. Fletcher . The rule has been generally applied where there has been non-natural
use of the land. An unusual use of the land must result in the escape of something from the land, which causes
damage to the plaintiff. The concept of non-natural use is flexible. A use may become un-natural in course of time
and vice versa.
Owners and occupiers of real property.— The strict principle of law is, utere tuo ut alienum non loedas (every
one must so use his own property as not to do damage to another). When this maxim is applied to landed property,
it is necessary for the plaintiff to show not only that he has sustained damage, but that the defendant has caused it
by going beyond what is necessary in order to enable him to have the natural use of his own land. The owner or
occupier of land may lawfully use it for any purpose for which it might in the ordinary course of the enjoyment of
land be used. And for the natural user of land an owner will not, in the absence of negligence, be liable though
damage results to his neighbour (Chasemore v. Richards , the percolation case). But for any non-natural user, such
as the introduction on the land of something which in the natural condition of the land is not upon it, he is liable if
damage results to his neighbour. Rylands v. Fletcher (the reservoir case) fully establishes the principle that the
person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it
escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage
which is the natural consequence of its escape. This is the established law whether the things so brought be beasts
or water, or filth, or stench, or electricity, or a traction engine, or a motorcar with petrol in it. It is immaterial whether
he is or is not aware of the danger at the time when he brings and uses them. In all such cases the liability of the
occupier is absolute except in those cases hereinafter mentioned or if such liability is excluded or limited by statute.
Exceptions to the principle laid down in Rylands v. Fletcher are—

(1) Vis major or act of God is such a direct, violent, sudden, and irresistible act of nature as could not by any
amount of human foresight have been foreseen or, if foreseen, could not by any amount of human care
and skill have been resisted (Nicholas v. Marsland , the unusual rain case; Blyth v. Burmingham
Waterworks Co ., the severe frost case). Thus those acts which are occasioned by the elementary forces
of nature, unconnected with the agency of man or other cause, will come under the category of acts of
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God, e.g. storm, tempest, lightening, extraordinary fall of rain, extraordinary high tide, extraordinary severe
frost.
(2) Wrongful act of a third party (Box v. Jobb , the third party water case).
(3) Plaintiff's own fault.
(4) Artificial work, maintained for the common benefit of the plaintiff and the defendant (Carstairs v. Taylor , the
rat case).
(5) When it is the consequence of an act done for public purpose in the discharge of a public duty under the
express authority of a statute (Madras Railway Co. v. Zamindar of Carvetinagram , the reservoir case).
Other applications of the Rule.— A more stringent rule of strict liability has been laid down by the Supreme Court in
M.C. Mehta v. Union of India where a mill was held liable for death and injury caused by the escape of oleum gas.
The Court said that what is necessary is not non-natural use but hazardous activity on the land. The court also
observed in this case that the court can allow exemplary damages and the larger and more prosperous the
enterprise, the greater must be the amount of compensation payable by it. But in Charan Lal Sahu v. Union of India
, (1990) doubts were expressed as to the correctness of this view as to damages.
A Division Bench of the M.P. High Court Jagdish v. Naresh Soni, (2007) 3 MPHT 234 has applied the rule of M.C.
Mehta v. Union of India (p.503) against the M.P. Electricity Board although there was also finding of negligence
against the Board. It is extremely doubtful if the rule in M.C. Mehta can be applied to transmission of electricity.
M.C. Mehta related to escape of obum gas and was applied in Charan Lal Sahu where there was escape of MIC
gas. These gases were highly toxic gases. The transmission of Electricity is not that hazardous.
Moreover, there appears to be no statutory authority to support the manufacture of obum gas or MIC. It is still a
question open for decision of the Supreme Court if M.C. Mehta rule applies when there is statutory authority to carry
out the hazardous industry. The Supreme Court has so far not applied this rule to transmission of Electricity or in a
case where there is statutory authority to support the activity.
A two Judge bench of the Supreme Court however in a case arising under section 124A of the Railway Act which
provides for strict liability has however made obiter observations to the effect: “Apart from the principle of strict
liability in section 124A of the Railway Act and other statutes, we can and should develop the law of strict liability
dehors statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta case. Union of
India v. Prabhakaran Vijay Kumar, (2008) 9 SCC 527 [LNIND 2008 SC 1066] : (2008) 4 JT 598.
One of the principles laid down by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc
. (1994) is that storage of substantial quantities of chemicals on industrial premises should be regarded as a classic
case of non-natural use and there could be no objection in imposing strict liability for forseeable damage caused in
the event of their escape. In State of Punjab v. Modern Cultivators , (1965), the digging of a canal was held to be a
normal use, but liability was imposed on the finding of negligence. In Jay Laxmi Salt Works v. State of Gujarat ,
(1994), liability was imposed not on the basis of non-natural use but because of the defective planning and
construction of a bandh for reclaiming land from sea waters. Followed in Indian Council for Enviro Legal Action v.
Union of India , (1996).
Mention must be made of the Public Liability Insurance Act, 1991 which is an important legislation to promptly
compensate the members of the public from accidents arising out of hazardous industries.
The Supreme Court has extended the application of the rule to cases under MV Act where also liability is imposed
without negligence. Kusuma Begam v. New India Assurance Co. Ltd. , (2001). The Electricity Board was held liable
where a cyclist was electrocuted by a live electric wire lying on the road. M.P. Electricity Board v. Shail Kumar ,
(2002).
The case of Deepal Girishbhai Soni, AIR 2004 SC 2107 : (2004) 5 SCC 385 [LNIND 2004 SC 358] was followed by
a two judge bench of the Supreme Court in Oriental Insurance Co. Ltd. v. Premlata Shukla C.A. 2526 of 2007
decided on 15-5-2007 [2007-3 M.P.H.T. 225 (SC) : (2007) 8 JT 575] where it was held (para 10): “Proof of rashness
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and negligence on the part of the driver of the vehicle is therefore sinequa-non for maintaining an application under
section 166 of the Act.” It is submitted that the case of Kusuma Begum requires reconsideration.
Occupiers of Premises
Occupiers Liability Act, 1957 (English).— The expression premises not only includes land and premises, but also
vehicles, railway carriages, scaffolding and the like. The liability is now governed by the above Act and also the
Occupiers Liability Act of 1984, (both English). The persons coming on the land are classified into contractors,
invitees, licencees and trespassers. The duty varies in the descending order. The classification between invitees
and licencees has been undone. They have been put in the category of visitors. The Courts in India can also follow
these statutory developments. The simple duty of care is now owed to contractors, invitees and licencees. It is the
duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably
safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there. Greater
care has to be taken of children. Reasonableness epends upon circumstances and one of the circumstances is the
age and intelligence f the entrant. The occupier cannot exempt himself by giving a warning ofthe danger to the
visitor. The presence of warning will be only one fact to be consideredin the test of reasonableness.
Activity duty.— Activity duty means the duty to protect a visitor by reasonable effort from the risk created by an
activity being carried on the premises the governing principle is the tort of negligence. But the plaintiff can proceed
either under the activity duty or occupiers’ duty. There is a difference of opinion as to whether activity duty has been
abolished by the Occupiers’ Liability Act.
The duty in regard to the case of owners or occupiers of houses, land, or structures, differs according to the
persons in regard to whom it has to be exercised. These persons fall into the following categories:
(1) Trespassers; (2) licensees; (3) invitees; (4) persons lawfully passing by and (5) persons entering in exercise of
power or duty.
Trespasser.— A trespasser is a person who enters into another's property without any right or permission. The
general rule is that there is no duty of care towards such a person. He who enters wrongfully does so at his own risk
in all respects. The occupier has no duty to take reasonable care for his protection or even to protect him from
concealed danger. He is liable only where the injury is due to some wilful act involving something more than the
absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the
trespasser, or at least some act done with reckless disregard of the presence of the trespasser. Thus he must avoid
endangering the safety of trespassers by concealed dangers in the nature of a trap, or such as would be likely to
punish intruders in a cruel manner (Bird v. Holbrook and Illott v. Wilkes , the springgun cases). The owner or
occupier is not entitled to inflict personal injury by direct violence even to a trespasser (Cherubin v. State of Bihar ).
To impose a duty of care on the occupier towards a trespasser it must be shown that the presence of the trespasser
was either actually known or was very probable.
The Occupiers Liability Act of 1984 imposes duty towards trespassers if the following conditions are satisfied: (a)
The occupier should have knowledge of the existence of the danger on his land; (b) that the entrant is in the vicinity
of danger and (c) the risk is such that it can be reasonably expected that the occupier should provide him some
help. A person shooting at a trespasser who was trying to enter for burglary was held liable to the extent of two-
third. He had exceeded the right of private defence. Revill v. Naubery (1996) 1 All ER 291 (CA). Courts in India can
also follow this programme.
Licensee.— A licensee is a person who enters on premises under a license from the occupier, either express or
implied. A bare licensee is only entitled to use the place as he finds it. Any complaint by him may be said to wear
the colour of ingratitude so long as there is no design to injure him. The licensee or guest must take care of himself
and no action will lie unless the accident by which he sustained the injury has been caused by the negligence of the
owner (Southcote v. Stanley , the glass pane case). The duty of the occupier is—
(i) to caution him against any known insecurity or hidden danger which is not of a readily discoverable
character, and of which the occupier was aware but the other party was ignorant. If the danger is obvious
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the licensee must look out for himself. If it is one to be expected, he must expect it and take his own
precautions.
(ii) Not to alter the character of the place by placing on it dangerous obstructions (Corby v. Hill , the slate case).
The owner is under no liability as to existing traps, but must not create new ones without taking precautions
to protect the licensee against them.
The position of a licensee is better than that of a trespasser in that he is entitled not to have the condition of the
premises so altered as to set up a trap for him. A guest, or a person who enters into premises to solicit orders, or to
beg, or to hold any communication with the occupier, is a licensee.
Invitee.— An invitee is a person who is on the premises for some purpose in which he and the occupier have a
common interest. This class includes invitees—
(a) who do not pay for their presence on the premises, and
(b) who use the premises on payment.
The duty with reference to class (a) is this. The person invited using reasonable care on his part for his own safety
is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger
which he knows or ought to know. If the danger is not such that he ought to know of it, his liability does not extend
to it (Indermaur v. Dames , the shaft case; Heaven v. Pender , the staging case; Smith v London & St. Katherine's
Dock Co. , the gangway case). Even though the Occupiers’ Liability Act, 1957, in England, provides for a common
duty of care to invitees, yet in proper cases it envisages a greater degree of care on the part of the occupier, e.g. he
must be prepared for children to be less careful than adults.
The duty is greater in respect of class (b). Where the occupier of premises agrees for reward that a person shall
have a right to enter and use them for a mutually contemplated purpose, the contract between the parties contains
an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any
one can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects
which could not have been discovered by reasonable care or skill on the part of any person concerned with the
construction, alteration, repair or maintenance of the premises. The principle is basic and applies alike to premises
and to vehicles. Where the defect in the premises which caused injury to an invitee arose by the negligence of a
person supposed to possess special knowledge and experience and who was employed by the inviter to carry out
certain work on the premises, the inviter was not liable.
There is a distinction between an invitee and a licensee. The inviter and invitee have a common interest, but the
licenser and licensee have none. The owner of premises incurs liability to the former as to the existing traps but not
to the latter.
As already noted the successive Occupiers’ Liability Acts have done away with these distinctions.
Persons lawfully passing by the premises.— In regard to persons lawfully passing by the premises, the duty of
the owner of the premises extends to guarding against what may happen just beyond the premises, on the road, or
other place, where they may lawfully be. It is incumbent upon the owner to show that he used that amount of
reasonable care and dilligence which he was bound to use (Terry v. Ashton , the lamp case; Kearney v. London,
Brighton & South Coast Ry. , the brick case; Byrne v. Beadle , the barrel case.) The same principle was applied in
holding the Delhi Municipal Corporation liable when the branch of a tree standing on the road suddenly broke down
and fell on the head of the pillion rider killing him when the scooter driver by his brother passed under the tree. It
was held that the Horticulture Department of the Corporation should have carried out periodical inspection and
should have taken safety precautions to see that the road is safe for its users. Municipal Corpn. of Delhi v. Sushila
Devi , (1999).
Persons entering in exercise of power or duty, i.e. authorised officials under statute should be treated as
invitees rather than bare licensees.
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Children.— If the children are trespassers the only duty of the landowner is not to injure them intentionally, or to put
dangerous traps for them intending to injure them. He is under no liability if in trespassing, they injure themselves
on objects legitimately on his land. To make a landowner liable for injury to children on his land, it must be proved
that he expressly or impliedly invited them on to his land, and either did an act which caused damage with
knowledge that it might injure them, or knowingly permitted the existence on his land of a hidden danger or trap.
Even under the Occupiers’ Liability Act, 1957, in England, an occupier must be prepared for children to be less
careful than adults. A child visitor of Delhi zoo aged 3 years put his hand inside the iron bars where a tigress was
kept and his hand was crushed by the tigress. It was held that the zoo authorities should have put iron mesh on the
rods, which they did after the incident, to prevent a child putting inside the rods and were liable in damages for the
injury and the child was not guilty of any contributory negligence. Nitin Walia v. Union of India , (2001).
Railway level crossing.— Railway companies are bound by statutes to shut the gates of a level crossing while a
train is approaching. If they omit to do so, they invite persons to cross the line, and thereby put them off their guard,
and are liable for the injuries which ensue. The plaintiff must allege and prove, not merely that the company was
negligent, but that its negligence caused or materially contributed to the injury.
There is an obligation on the Railway Administration to ensure that wherever railway passes over a thoroughfare
adequate warning should be given to the public of the passing of the train so that accidents may be avoided. Union
of India v. United India Assurance Co. Ltd. , (1997)
An invitation to alight at a Railway station on the stopping of a train without any warning of danger to a
passenger, who is so circumstanced as not to be able to alight without danger, such danger not being visible or
apparent, amounts to negligence on the part of a railway company. Again, if a person, thinking, on the train
stopping that it has arrived at his station, and that he should, therefore, alight, does so, and, by reason of its having
overshot the platform, he is injured, the company is liable.
Persons incharge of children.— The standard of care was discussed by the Supreme Court is M.S. Isewal v. Deep
Chand Sood , (2001). Some children of 4th to 6th standard drowned in a river while they were alongwith other
children were carried for an outing. The teachers incharge were found to be negligent. The school was held
vicariously liable in damages to parents.
Persons professing to have greater skill
Where persons hold themselves out to be persons of skill, they are bound to conduct themselves in a skilful
manner. To all such persons the maxim spondes peritiamartis (if your position implies skill, your must use it)
applies. Where professional persons employed by an education authority negligently fail to assess and provide for
special educational needs of a child (with whom they have not contractual relationship, they are liable to him in tort
for being in breach of their common law duty and the authority is also vicariously liable. E, a minor v. Dorset County
Council , (1994) 4 All ER 640 (CA).
Dealing with the duty of valuers, the House of Lords observed that a valuer would be liable if a qualified valuer
would consider that, taking into consideration the nature of the work for which an average valuer would not have
made in the circumstances. A similar test can be applied to other professionals. Smith v. Erie and Bush , (1989) 2
All ER 514 (HL).
The House of Lords held a valuer liable to a bank which advanced loans on the security of properties on the basis
of the valuer's report and suffered loss because the valuer had negligently inflated the valuation. South Australia
Asset Mgt. Corpn. v. York Montague, (1996) 3 All ER 365 (HL).
Of this class are :—

(I) Directors of companies.
(II) Carriers.
(III) Physicians and surgeons.
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(IV) (VI) Counsel.

(V) Solicitors.
(VI) Doctors.
(VII) Bankers.
(VIII) Manufacturers.
Directors are persons holding themselves out as capable of directing complicated affairs and inviting persons to
trust their money to the company which they direct. They are, therefore, bound to show more than ordinary care
towards the shareholders. They must show diligence which good men of business are accustomed to show.
Carriers are of two kinds:—

1 Carriers of goods.
2 Carriers of passengers.
Any one who undertakes to carry the goods of all persons indifferently, for hire, is a common carrier.
1 Common carriers of goods are of three descriptions :—
(a) Carriers by land, e.g. proprietors of stage-coaches and omnibuses and also truckmen, waggoners, team
masters, cart-men, etc.
(b) Carriers by water, e.g. coasting ships, steam boats, etc.
(c) Carriers by air.
(a) A carrier by land is bound to carry all goods offered for transportation by any person. He must take utmost
care of those goods from the moment of receiving them.
(b) A carrier by water is bound to provide a ship tight, staunch and strong, and to guard against all injuries
incident to the property.
Common carriers are liable for loss or injury to goods even though there may have been no negligence,
except where the loss or injury is caused by an act of God, or the King's enemies, or an inherent vice or
defect in the goods carried or defective packing. The carrier may limit his liability by means of a special
contract. Patel Roadways Ltd. v. Birla Yamaha Ltd. , (2000); Economic Transport Organisation v. Dhanwad
District Khadi Gramodyog Sangh , (2000).
(c) A carrier by air is under similar obligation.
1 Carriers of passengers are of three descriptions.:—
(a) Passenger carriers on land.
(b) Passenger carriers by water.
(c) Passenger carriers by air.
2 Passenger carriers on land are bound—
(i) To carry passengers whenever they offer themselves and are ready to pay for their transportation, if
they have room or accommodation.
(ii) To provide roadworthy vehicles.
They are not liable for any accident which happens not owing to any defect in the construction of the vehicle.
In regard to their liability for the baggage of passengers, articles of necessity, and personal convenience, they stand
upon the ordinary footing of common carriers.
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Railway companies are bound to use proper care and skill in carrying their passengers but they are not liable
independently of negligence.
(b) Passenger carriers by water are under the same obligations with respect to the safety of passengers are
carriers by land.
(c) Under common law the liability of the owner or pilot of an aircraft is the same as of the owner or driver of any
other vehicle. The liability is now also governed by the Carriage by Air Act, 1961. In India the Indian
Carriage by Air Act, 1934, subject to certain exceptions and modifications has been made applicable to all
carriage by air other than international carriage. PA Narayanan v. Union of India , (1998), death caused by
assault in a running railway train; Union of India v. M. Thankaraj , (2000), liability for dacoity, robbery,
looting, arson, shooting out and accidental falling of a passenger; Union of India v. Kamlesh Goel , (2001),
snatching of a passenger's goldchain.
The compensation payable under sections 124 and 124 A of the Railways Act, 1989 is regulated by the Railways
Accidents and Untoward Incidents (Compensation) Rules, 1990.
The definition of untoward accident has been liberally construed. It has been held to cover a case where a
passenger fell down while attempting to board the train. Union of India v. Prabhakar Vijay Kumar, (2008) 9 SCC 527
[LNIND 2008 SC 1066] : (2008) 4 JT 598. Section 124A makes the Railway administration liable irrespective of any
fault except when the passenger dies or suffers injury due to (a) suicide or attempted suicide by him; (b) self
inflicted injury (c) his own criminal act (d) any act committed by him in a state of intoxication or insanity and (e) any
natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury
caused by the untoward accident. In other respects section 124A provides for strict liability and if a case comes
within its purview it is wholly irrelevant as to who was at fault. Ibid .
An innkeeper is a keeper of a common inn for the lodging and entertainment of travellers and passengers, their
horses and attendants, for a reasonable compensation. A person who keeps a private boarding or lodging house is
not an innkeeper.
An innkeeper is bound to provide lodging and entertainment for all at reasonable price if he has accommodation:
not so a boarding-house keeper. He must guard their goods with proper diligence. He is not an insurer of the goods,
but is liable for negligence (Calye's case, the horse theft case). He is not liable, for instance, if the guest's friend or
servant steals or carries away the goods.
The liability of an innkeeper with respect to the personal safety of his guest is less onerous. He does not insure the
personal safety of the guest. The guest is an invitee, and the innkeeper as the occupier of premises to which he has
invited the guest, is bound to take reasonable care to prevent damage to the guest from unusual danger which the
occupier knows or ought to know of. But further by reason of the contractual relationship existing between an
innkeeper and a guest there is an implied warranty by the innkeeper that the premises are as safe as reasonable
care and skill on the part of any one can make them. The innkeeper is not responsible for defects which could not
have been discovered by reasonable care and skill on the part of any person concerned with the construction,
alteration, repair, or maintenance of the premises.
Physicians and Surgeons.— Every person who enters into a learned profession undertakes to bring to the
exercise of it such care and skill as becomes one belonging to that profession. A physician or a surgeon does not
undertake that he will perform a cure, but he undertakes to bring a fair, reasonable, and competent degree of skill.
This test covers the entire field of liability of a doctor, namely, liability in respect of diagnosis; duty to warn his
patient of risks inherent in treatment and also in respect of the treatment. The same test was applied to the case of
a surgeon who was sued for the fact that he did not warn the patient that there was a risk of failure and
consequently she became pregnant again. In 1979 when the operation was performed the risk of failure was 20-60
per 10,000 and the court found on evidence that a substantial body of responsible doctors would not have
considered a warning to be necessary. Gold v. Harrington Health Authority , (1987); M.K. Gouri Kuty (Dr) v. M.K.
Raghavan , (2001), termination of pregnancy without ultra-sonography.
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The same test is applied in judging the legality of an operation performed by a doctor on a patient who is incapable
of giving consent. Excepting mental cases where legal permission may be taken, an operation can be performed in
the best interest of the patient. F. v. Berkshire Health Authority , (1989).
In dealing with cases of negligence of doctors, the law does not recognise any doctrine of team liability and the
case of each doctor in the team has to be considered separately.
In Achutrao Haribhau Khodwa v. State of Maharashtra , (1996), the Supreme Court observed that, within the
framework of legitimate difference of opinion, a doctor has to show due care and attention and proper skill and
experience in the exercise of his profession and held that leaving a mop in the abdomen of the patient after
operation for sterilisation was a case of per se negligence. Bolitho v. City and Hackney Health Authority , (1997),
value of opinion in evidence. For law relating to patients who are incapable of giving consent, see pp. 539-542. For
developments of law in the field of euthanasia see R. v. Director of Public Prosecutions , (2002) 1 All ER 1 (HL).
The question of consent in India is also governed by the Bolam test as elaborately laid down in the case of Samira
Kohli v. Prabha Manchanda, (2008) 2 SCC 1 [LNIND 2008 SC 81] : AIR 2008 SC 1385.
In Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 [LNIND 2009 SC 375] : AIR 2009 SC 2049 the Supreme
Court surveyed the entire case law and reiterated the principles which were stated in Jacob Mathew's case. In this
case the claimant complained of deafness because of negligence of the doctor in administration of overdose of
amikacin injection. On appreciation of evidence the negligence of the doctor was negatived. The court in addition to
reiterating the principles relating to medical negligence issued the following general direction: “We, therefore, direct
that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or
National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint
was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or
committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after
that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued
to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found
to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come
within the parameters laid down in Jacob Mathew case , otherwise the policemen will themselves have to face legal
action.” See also Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 [LNIND 2009 SC
1292] : (2009) 4 All LR 549 : 2009 Crlj 3012, on compensation for death in operation performed without consent.
Solicitors, like physicians, undertake matters of the very highest difficulty and importance. Ordinary neglect, where
so great a care is demanded, becomes very grave. Where a solicitor is guilty of negligence the Court may order him
to make good any loss occasioned by such negligence. A solicitor was held liable for negligence to his client for not
alerting him as to the effect of an unusual clause in a lease while negotiating an underlease. County Personnel
(Employment Agency) Ltd. v. Alan R. Pulver & Co., (1987). A solicitor does not normally owe a duty of care to his
client's opponents, but in special circumstances he may owe such a duty. National Home Loans Group Plc v.
Griffen Coach & Archer , (1997), duty while acting both for lender and borrower.
Counsel enjoys immunity from being sued for professional negligence in the conduct of cases. In India, s. 5 of the
Legal Practitioners (Fees) Act, 1926 provides that the practitioner shall not be exempt from liability to be sued for
any loss or injury due to any negligence in the conduct of his professional duty. The Supreme Court accordingly
held in M Verrappa's case, (1988) that an advocate who has been engaged to act is clearly liable for negligence to
his client. The Supreme Court left open the question whether an advocate who has been engaged only to plead can
be sued for negligence. In Raman Services Pvt. Ltd. v. Subash Kapoor , (2001) the Supreme Court held that if an
advocate fails to appear due to strike call given by the bar, he can be made liable for the costs which the litigant has
to pay for setting aside an exparte decne . The court also added that “the litigant who suffers entirely on account of
his advocate's non-appearance in court, has also the remedy to sue the advocate for damages.”
Bankers hold themselves out as persons worthy of trust and as persons of skill. Their duty, in respect of paying
their customer's cheques, is to honour them to any amount not exceeding the credit balance due to the customer
from the banker at any material time. Failure to do so constitutes negligence and the bankers are liable in damages.
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Bankers are liable for negligence in paying forged cheques. The Privy Council has laid down that negligence on the
part of the customer in drawing a cheque (i.e. a cheque drawn with spaces so that a forger can utilize them) does
not by itself disentitle him from recovering the extra amount paid by the banker (Colonial Bank of Australia case).
The House of Lords has held that a customer of a bank owes a duty to the bank in drawing a cheque to take
reasonable precautions against forgery, and if as the natural result of the neglect of those precautions the amount
of the cheque is increased by forgery, the customer must bear the loss (London Joint Stock Bank's case). But if the
signature on the cheque is not genuine, there is no mandate on the bank to pay; in such a case the customer's
negligence, e.g. leaving his cheque book carelessly so that another can easily get hold of it or that he ignored
looking at the pass book cannot afford any defence to the bank (Bank of Bihar's case). However, a customer is
under duty to inform the bank of unauthorised cheques as soon as he comes to know of them. If he fails to do so
and the banker loses his remedy against the forger for that reason, the customer will be estopped from raising the
defence of forgery (Tai Hing Cotton Mills Ltd. v. Lia Chang Hing Bank Ltd. ; Greenwood v. Martins Bank ). A banker
is liable to his customer for the loss occasioned by advice given to the customer relating to investments without
proper care and skill. (Cornish v. Midland Bank .)
Where a bank delivers goods received by it on behalf of a customer to a wrong person, the liability to the customer
is absolute, though there is no negligence, as where delivery is obtained from the bank by means of an artfully
forged order. Though banks can contract out of absolute liability but they would not do so in practice.
Manufacturers, Repairers and Builders.— A manufacturer of an article of food, medicine or the like, sold by him
to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from
discovering by inspection any defect, is under legal duty to the ultimate purchaser or consumer to take reasonable
care that the article is free from defect likely to cause injury to health (Donoghue v. Stevenson , the snail case;
Grant v. Australian Knitting Co. , the woollen garment case). The duty of one who produces and sells food or drink,
or medicine, intended for human consumption, and prepared for use in such a way that the user cannot test its
conditions beforehand by any ordinary examination is that he must use reasonable diligence to ensure freedom
from possible non-apparent defects which would be likely to make the product noxious or dangerous in use; and if
he does not, any consumer who sustains damage from such a defect shall have his action. In order to render a
manufacturer liable to the ultimate purchaser, it is necessary that the article must reach the purchaser in the form in
which it leaves the manufacturer without opportunity for intermediate examination. A manufacturer will not be liable
where the retail dealer had an opportunity of inspection and could by a simple test have ascertained the
unsuitability of the goods for the purpose for which they were sold (Kubach v. Hollands , the school chemicals
case). The principle laid down in Donoghue's case applies to suppliers or repairers or distributors of goods, and
also to builders. The House of Lords observed in Anns v. Morton London Borough that if there was at one time a
supposed rule that the doctrine of Donoghue v. Stevenson did not apply to reality, there is no doubt under modern
authority that a builder of defective premises may be liable in negligence to persons who thereby suffer injury
(Rimmer v. Liverpool City Council ). A sub-contractor for laying floor at a factory was held liable for defective
flooring and for payment of damages for replacing the flooring. (Junior Books Ltd. v. Veit Chi Co. Ltd. ). The cases
have confined the liability in tort of a builder for a defect in the building to physical injury to persons or damage to
property (other than the building itself) caused by the defect and have negatived the liability for pure economic loss.
Department of Entrustment v. Thomas Bates & Sons Ltd. , (1990) 2 All ER 943 (HL).
In addition, the duties and responsibilities created by the Consumer Protection Act, 1986 have also to be fulfilled.
Persons voluntarily undertaking higher degree of duty
Persons possessing or using dangerous things are bound to exercise more than ordinary care in respect of them
while in their control, and to keep them safe at their peril. Of this class are persons keeping—
(I) Dangerous animals.
(II) Dangerous goods.
(III) Gas.
(IV) Machinery.
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Keepers of Dangerous Animals.— Animals are of two classes,—

(i) those that are of a dangerous character (animals ferae naturae ) which a person must keep at his peril, i.e. a
lion, a bear, a wolf, an ape, an elephant; and
(ii) those not of a dangerous nature (animals mansuetae naturae ), e.g. dogs, horses, rams or bulls.
A person who keeps a savage animal of the first class is bound to keep it so far under control as to prevent it from
indulging its propensities and inflicting injuries. If the animal escapes and hurts any one, the owner is liable to an
action for the damage, without any averment of negligence or default in the securing or taking care of it. The gist of
the action is the keeping of the animal after the knowledge of its mischievous propensities (May v. Burdett , the
monkey case).
In regard to the animals of the second class, the owner is liable for their trespass and consequent damage, but not
for other injuries unless proof of scienter is given as to the propensity of the animal itself to do the act in question
(Cox v. Burbridge , the kick case). As regards trespasses there is a distinction between animals which from their
natural tendency to stray require to be restrained and those which are not usually kept confined. Owners of dogs
and cats are not responsible for their trespasses. As regards other injuries knowledge of the defendant that the
animal was prone to injure mankind must be established (Osborne v. Choqueel , the dog-bite case), and, for this, a
single instance of ferocity of such animal is sufficient notice. Such knowledge may be either personally possessed
by the defendant or may have been brought to his notice impliedly by the knowledge of some one whose business
connected him with the animal. When the cause of action is an injury which has been inflicted by a dog on cattle
and sheep no evidence of scienter need be established, and damages are recoverable by the owner of such
animals. In England, the Animals Act, 1971, sweeps away the common law rules.
Wild animals roaming about in the forest, even though their hunting be prohibited, are not the property of the State.
The Government is not liable for injury caused by a wild animal, black bear in this case. State of H.P. v. Halli Devi ,
(2000).
Dangerous goods.— Under dangerous goods come fire, fire-arms, fireworks, explosive materials, and poisonous
drugs.
(i) Fire.— Every person who lights a fire for ‘non-domestic’ purposes is clothed with a heavy responsibility to his
neighbours as regards the lighting, safekeeping, and spreading of such fire. He must keep the fire in his
land at his peril. Thus, where the Legislature has sanctioned the use of locomotives, there is no liability for
injury caused by sparks flowing from them. But if there is no such sanction given a railway company is
liable for injury caused by such sparks even though there is no negligence. If the railway company had no
express statutory power to use such engines, it is liable for damage by fire proceeding from it, though
negligence be negatived, because it does so at its peril.
A man is not liable for damage caused by ‘domestic’ fire, that is, a fire which began in his house or on his
land, provided, it originated by accident and without negligence. But if a fire is negligently lighted or kept by
a person or his servant, he will be liable for any injury thereby occasioned to his neigbhour.
Fireman's rule.— Under American Law there exists what is known as a ‘fireman's rule’ which means that a
fireman suffering injury while doing his duty of extinguishing a fire cannot sue a person whose negligence
had caused the fire even if injury suffered was foreseeable. But this rule does not form part of the English
Law as held by the House of Lords in OGWO v. Taylor , (1987). The English Law on this point stated in this
case is as follows: “where it can be foreseen that the fire which is negligently started is of the type which
could, first of all, require firemen to attend to extinguish that fire and where because of the very nature of
the fire when they attend they will be at risk even though they exercise all skills of their calling, there seems
no reason why a fireman should be at any disadvantage when the question for compensation for his injuries
arises. In this case a fireman who was wearing protective clothing and who went on duty to extinguish a fire
negligently started by the defendant, was held entitled to compensation for the injuries suffered by him from
steam generated by fighting fire with water. The same principle has been applied to police officers called for
rescue work in a disaster caused by the defendants negligence. Frost v. Chief Constable of South
Yorkshire Police , (1997).
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Firebrigade.— The Court of Appeal has held that a firebrigade does not enter into a sufficient proximate
relationship with the owner or occupier who calls for their services so as to come under a duty of care
merely by attending at the fire ground and fighting the fire. But where the fire brigade, by their own actions
had increased the risk of the danger which cause damage to the plaintiff, they would be liable for
negligence in respect of that damage, unless they could show that the damage would have occurred in any
event. Captial and Counties plc v. Hampshire County Council , (1997).
(ii) Fire-arms.— Loaded fire-arms are highly dangerous things, and more than ordinary care is necessary in
dealing with or handling them (Dixon v. Bell , the gun case).
(iii) Fireworks and Explosive Material.— Persons are bound to use the very greatest care in the use of
fireworks and other highly explosive materials or materials otherwise dangerous or destructive. The law,
having regard for human life and safety, demands great care from owners and controllers of dangerous
goods.
(iv) Poisonous drugs.— Similarly, persons dealing with poisonous drugs are bound to exercise more than
ordinary care as the mischief which is likely to occur for want of such care is extremely dangerous to the
public (Thomas v. Winchester , the belladonna case).
Other dangerous articles.— A person who intentionally induces another to rely on his examination of a dangerous
chattel is liable if that other is injured owing to a defect in the chattel which could have been discovered by a proper
examination.
Gas companies are bound to exercise the very greatest care, for they are using a material of dangerous character.
Persons using dangerous machinery are required by several Acts to take proper precautions.
In matters of electricity , the State Electricity Boards can be held liable for negligence if there is omission to use all
reasonable means to keep electricity harmless. The standard of care required is a high one owing to dangerous
nature of electricity and the burden of proving that there was no negligence is generally on the Board.
Contributory negligence is negligence in not avoiding the consequences arising from the negligence of some
other person, when means and opportunity are afforded to do so. It is the non-exercise by the plaintiff of such
ordinary care, diligence, and skill as would have avoided the consequences of the defendant's negligence. The law
takes into consideration any act or conduct of the party injured or wronged which may have immediately contributed
to that result. Where such conduct can be proved, the party is considered in law to be the author of his own wrong,
and it is fatal to any action on his part based on the injury. The doctrine seems to be founded upon the maxims
volenti non fit injuria and in jure non remota causa sed proxima spectatur . Its principles may be summarized as
follows:—
(1) Wherever the immediate, proximate or decisive cause of the damage is the plaintiff's own negligence or
want of care and caution, so that, but for such negligence or want of ordinary care and caution on his part
the misfortune would not have happened, he is not entitled to recover (Davies v. Mann , the donkey case;
Butlerfield v. Forrester , the pole case; Tuff v. Warman , the barge case).
(2) The plaintiff, however, is not disentitled to recover unless it is shown—
(i) that he might by the exercise of ordinary care have avoided the consequences of the defendant's
negligence; or
(ii) that the defendant could not have avoided the consequences of the plaintiff's negligence by the exercise
of ordinary care (Radley v. London & North Western Ry ., the truck case).
The question will be, which of the parties had it last in his power to avert the disaster?
(3) Where the direct and immediate cause of the accident is the defendant's fault, so that without it the accident
could not have happened at all, it is no answer that, but for the plaintiff's negligence in something collateral
to the immediate cause of the injury, the injury or part of it might have been avoided.
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(4) If there has been as much want of reasonable care on the plaintiff's part as on the defendant's, the plaintiff
cannot sue the defendant.
The doctrine of contributory negligence is unknown to the maritime law administered in the Court of Admiralty
jurisdiction; and is also not inflexibly applied in cases where young children are concerned (Lynch v. Nurdin , the
horsecart case).
Upon the issue of contributory negligence the burden of proof is on the defendant. Where it cannot be established
to what extent the negligence of the plaintiff or that of the defendant contributed to bring about the accident, the suit
will fail.
See T.O. Anthony v. Karvanan, (2008) 3 SCC 748 [LNIND 2008 SC 227] : (2008) 3 JT 297, head on collusion
between two buses; Andhra Pradesh Road Transport Corpn. v. K. Hemlatha, (2008) 6 SCC 767 [LNIND 2008 SC
1269] : AIR 2008 SC 2851; motor cycle hit from behind by a bus (at p. 590). Devi Singh v. Vikram Singh, MA No.
670/2007, decided on 17-10-2007, question of contributory negligence by motor cycle pillion riders. (P. 591). St.
George v. Home Office, (2008) 4 All ER 1039 (CA), no contributory negligence on the part of a prisoner who was
injured by withdrawal seizure, being a drug addict.
In England, the Law Reform (Contributory Negligence) Act, 1945, has beenp assed, which contemplates that if the
plaintiff's own fault is one of the causes of his injury, his damages are to be reduced by the same amount as against
any of the others whose fault is the cause of the injury, whether he sues one or more of them, and they bear the
amount so reduced in the appropriate proportions between themselves. There is no corresponding Central Act in
India but the provisions of the English Act have been followed, in preference to the common law rule, being more in
consonance with justice, equity and good conscience. (Vidya Devi v. M.P. State ). The Kerala State has enacted
the Kerala Torts (Miscellaneous Provisions) Act, 1976.
The defence of contributory negligence has no place in a suit brought for damages on account of intentional
wrongs. The 1945 Act has no application to a suit on breach of contract.
Contributory negligence of children.— The rule as to contributory negligence is not inflexibly applied in cases
where young children are concerned. Allowance is made for their inexperience and infirmity of judgment. An infant
can recover, although its conduct contributed to the injury, if the defendant is shown to have failed in his duty to the
infant (Lynch v. Nurdin ). If there is no allurement, trap, or dangerous object requiring care, the defendant is not
liable. If a child is guilty of what in a grown-up person would be mere negligence and nothing more, the child is not
disentitled to relief. A child of six, standing near a footpath when knocked down by lorry, and a child of the same
age when knocked down by a motor cycle while trying to cross the road have been held to be not guilty of
The Madras High Court has held that children capable of discrimination and perceiving danger can be guilty of
Choice of evils.— Where the creation of a dangerous situation is ascribable to the negligent act of the defendant,
he is not to be excused from liability for consequent harm by reason of the fact that the person endangered looses
selfpossession and in the confusion incident to the danger takes a course which turns out not to be the safest one.
In such circumstances contributory negligence on the part of the person injured is not made out unless he is shown
to have acted with less caution than any person of ordinary prudence would have shown under the same trying
conditions.
Rescue of third persons.— The impulsive design to save human life when in peril is one of the most beneficial
instincts of humanity. So the claim of a person who is injured in the act of rescuing others from danger cannot be
defeated on the ground of contributory negligence.
Imputed contributory negligence or doctrine of identification.— This doctrine was that where a person
voluntarily engaged another person to carry him, he so identified himself with the carrier as to be precluded from
suing a third party for negligence in cases where the carrier was guilty of contributory negligence (Thorogood v.
Page 76 of 82
Bryan , the omnibus case). But this doctrine is expressly overruled in the case of The Bernina (the collision case)
which lays down that where damage is sustained by the concurrent negligence of two or more persons there is a
right of action against all or any of them at the plaintiff's option, and the exception of contributory negligence
extends only to the acts and defaults of the plaintiff himself, or of those who are really his agents. Where a child is
in the custody of an adult, the contributory negligence of the adult will not disentitle the child from recovering
damages, because the child is not so identified with the adult that his negligence would amount to the negligence of
the child. (Oliver's case, the grandmother's negligence case).
Breach of statutory duties.— If things authorized to be done by a statute are carelessly done an action lies. Such
breach is known as “statutory negligence.” The defence of volenti non fit injuria is not applicable in an action based
on a breach of statutory duty.
It is only when a duty of care is owed by the authority to the person that he can claim damages so where a state
authority exercised statutory powers for the protection of inmates of nursing homes and negligent exercise of that
power resulted in closure of a nursing home causing great economic loss to the owners of the nursing home, the
owners had no remedy to sue the authority in damages for negligence for it could not be said that a common law
duty of care was owed by the authority to the owners of the nursing home. Jain v. Trent Health Authority, (2009) 1
All ER 987 (HL)
There are three classes of cases in which a liability may be established founded upon a statute:—
(1) Where there is a liability existing at common law, and that liability is affirmed by a statute which gives a
special and peculiar form of remedy different from the remedy which existed at common law; there, unless
the statute contains words which expressly or by necessary implication exclude the common law remedy,
the party suing has his election to pursue either that or the statutory remedy.
(2) Where the statute gives the right to sue merely, but provides no particular form of remedy, the party can
only proceed by action at common law.
(3) Where a liability not existing at common law is created by a statute, which at the same time gives a special
and particular remedy for enforcing it, remedy provided by the statute must be followed.
It is essentially a question of construction whether a statute creating a new obligation and providing its own mode of
enforcing it, also impliedly enables the injured person to sue for damages. The plaintiff must prove that the injury
suffered is of a kind which is within the aim and scope of the Act creating such duty, and not merely an accidental
result of the breach. He must prove not only the breach, but also that the breach caused the injury.
The injured person can also get an order for compliance of statutory requirements.
The right of private individual to recover is subject to the following two conditions:—
(1) The injury must be of a kind which is within the scope of the Act creating such duty and not merely an
accidental result of its breach.
(2) Where an Act creates an obligation and enforces the performance in a specified manner, performance in
any other manner cannot be enforced.
The cases where a private right of action for breach of statutory duty has been held to arise are all cases in which
the statutory duty has been very limited and specific as opposed to general administrative functions imposed on
public bodies and involving the exercise of administrative discretion. H (minor) v. Bradfordshire County Council ,
(1995).
Master's liability to servant.— Common law imposes following duties upon masters:
(1) To furnish proper appliances and materials. (2) To take reasonable precautions for safety at work. (3) The
master is responsible for his own appliance causing injury.
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The employer has also to ensure suitable work equipment. Something viz. door closure which was work equipment
did not cease to be so simply because it had broken down and someone had to repair it. Spencer-Franks v. Kellogg
Brown and Root Ltd., (2009) 1 All ER 269 (HL)
The master cannot get rid of his responsibility by delegating the work to a person who is not competent for the job.
Negligence on the part of the servant would disentitle him from his claim.
These principles were restated by the House of Lords in Mc Dermid v. Nash Dredging and Reclamation Co. Ltd. ,
(1987). In addition to the common law duty, the employer has to observe a number of duties as prescribed by a
large number of labour enactments.
An employee is not disentitled to recover simply because his occupation required him to run the risk of the injury.
White v. Chief Constable , (1999). Such a rule prevails in some States of the United States but has not been
accepted in England.
When the employer knows that acts done by employees during their employment might cause physical or mental
harm to a particular fellow employee, it is the employer's duty if he has power to do so to supervise or prevent such
acts and in case he fails to do so he may become liable in negligence. Waters v. Commr. of Police of the Metropolis
, (2000). A female police officer who was sexually abused by a fellow officer and was later subjected to a campaign
of harassment and victimisation by fellow officers and on whose complaint no step was taken to prevent these acts
was held to have a prima facie case against the commissioner of police in negligence for breach of duty. (Ibid ).
Burden of proof.— As a rule the onus of proving negligence is on the plaintiff. He must not merely establish the
facts of the defendant's negligence and of his own damage, but must show that the one was the effect of the other.
First, where there is no contract the plaintiff must prove facts inconsistent with due diligence on the defendant's
part. Where the balance is even as to which party is in fault, the one who relies on the negligence of the other is
bound to turn the scale.
Secondly, where there is a contract or personal undertaking, the plaintiff must prove such contract or undertaking
and also injury to himself. The mere fact of an injury happening, if unexplained, is evidence of negligence. It is for
the defendant to prove that he himself was exercising due care.
Thirdly, under certain circumstances, the mere happening of an accident will afford prima facie evidence that it was
the result of want of due care; res ipsa loquitur (the thing speaks for itself). This is so when—
(i) the injurious agency was under the management or control of the defendant, and
(ii) the accident is such, as, in the ordinary course of things, does not happen if those who have the
management use proper care (Byrne v. Boadle , the barrel case; Scott v. London Dock Co ., the sugar bag
case). The defendant may rebut this presumption if he can. The principle of res ipsa loquitur has no
application where the circumstances in which the accident has taken place indicate that there must have
been negligence but do not indicate as to who was negligent. The principle of res ipsa loquitur is merely a
rule of evidence. The Supreme Court applied the principle to a case where the engine of the truck caught
fire. (Shyam Sunder v. State of Rajasthan ). For this maxim to apply it is not necessary that the thing
should be in the exclusive control of the defendant. In the case of joint control, it is the duty of both
defendants to place the circumstances before the Court, failing which both become liable.
The maxim does not apply where the facts are sufficiently known. The maxim only shifts the burden of proof. This
will not happen where the facts are already known or the defendant has shown an alternative explanation. (Syed
Akbar v. State of Karnataka ).
Contracting out of liability for negligence.— The (English) Unfair Contract Terms Act, 1977 forbids liability for
death or personal injury resulting from negligence to be excluded or restricted by contract or notice. For other cases
of loss or injury, the Act permits the liability to be excluded or restricted provided that such clauses stand the test of
reasonableness. Harris v. Wyre Forest District Council , (1988) reasonableness of the term; Smith v. Erich S. Bush ,
Page 78 of 82
(1989), reasonableness of notice. The Act gives for the first time a statutory definition of negligence. The Act can be
used by the courts in India over all matters of negligence and also in respect of all contractual matters except to the
extent to which its provisions may conflict with the Contract Act, 1872.
CHAPTER XX
NUISANCE
Nuisance is anything done to the hurt or annoyance of lands, tenements, or hereditaments of another, and not
amounting to a trespass. Nuisances are of two kinds :
1. Public and 2. Private.

(1) Public or common nuisance is an act or omission, which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which
must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to
use any public right (s. 268 of the Indian Penal Code). Public nuisance, which is an offence against the
public order and economical regiment of the State, affects all equally, and can only be the subject of one
indictment, otherwise, a party might be ruined by a million suits. No length of time can legalize it, as it
cannot have a lawful beginning. In order that an individual may have a private right of action in respect of a
public nuisance—
(i) he must show a particular injury to himself beyond that which is suffered by the rest of the public;
(ii) such injury must be direct and not a mere consequential injury; and
(iii) the injury must be shown to be of a substantial character, not fleeting or evanescent. The damage
caused to the plaintiff must thus be particular, direct and substantial (Benjamin v. Storr , the wagon
case; Soltau v. De Held , the bell case). The object of this rule is to avoid multiplicity of litigation.
(2) Private nuisance is the using or authorizing the use of one's property, or of anything under one's control, so
as to affect injuriously an owner or occupier of property by physically injuring his property or by interfering
materially with his health, comfort or convenience. Private nuisance is an act affecting some particular
individual or individuals as distinguished from the public at large. It cannot be made the subject of an
indictment, but may be the ground for civil action for damages or an injunction or both. A right to commit a
private nuisance may be acquired by prescription as an easement. The degree of harm in an action
brought for nuisance on the ground that the thing alleged to be a nuisance is productive of personal
discomfort must be greater than in an action brought on the ground that it produces injury to property .
Highways.— Interference by a highway authority in the normal use of the highway is actionable. The Highways Act,
1961 abolished the distinction between different kinds of interference. The law is now enacted in the Highways Act,
1980. Failure to maintain a highway is also actionable unless otherwise justified.
Where a private individual obstructs the use of a highway, any person injured by it may sue. Where the surface of a
road was greasy owing to rains and a bus skidded injuring the plaintiff, it was held that there was no nuisance of
which the plaintiff could complain. But where a motor bus company cleared a road by collecting snow and storing it
at certain portions of the road, making them unusable, it was held to be a nuisance.
Distinction between injury to property and physical discomfort.— In the case of physical discomfort, the act
complained of must, having special regard to the circumstances and surroundings of the defendant's property, be—
(i) in excess of the natural and ordinary course of enjoyment of the property; and
(ii) materially interfering with the ordinary comfort of human existence (Walter v. Selfe , the brick case).
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Private nuisances for the most part arise in respect of—

(1) Obstruction to light
(2) Pollution of air or water
(3) Noise
Thus interference with television reception by erection of a tall building like loss of visual prospect caused by a tall
building is not such an interference with the use and enjoyment of land as to constitute actionable public or private
nuisance. Hunter v. Canary Wharf Ltd ., (1996).
Injury to property.— In the case of injury to property any sensible injury would be sufficient to support an action
(St. Helen's Smelting Co. v. Tipping , the vapour case). Nuisances of this class arise from manufacturing works,
sewers, drains, etc. A person is not debarred from suing for a nuisance because it existed before he came to its
neighbourhood.
Who may sue.— For nuisance of temporary character the actual occupier of premises alone can sue. If the injured
property is in the occupation of tenants, the landlord or reversioner has no right of action, unless the nuisance is of
a permanent character and necessarily inflicts a lasting damage to the inheritance. So long as the tenants stay and
endure the nuisance they are the only persons who can complain. A person who has no interest in the property or
no right of occupation cannot maintain an action.
Who is liable.— He who actually creates a nuisance is liable for it. Where a nuisance is caused by the physical
condition of premises resulting from an act of commission , the party who originally created the nuisance remains
liable. Where the physical condition of the premises complained of is the result of a wrong of omission the owner
cannot free himself from liability for the possible consequences of his breach of duty by merely letting the premises
to tenants without taking a covenant from them to repair the premises. If he lets them without such a covenant, both
landlord and tenant are liable.
Liability of landlord.— The owner of dilapidated premises may demise them as they are. A landlord who lets a
house in a ‘dangerous’ state is not liable to the tenant's customers or guests for accidents happening during the
term. The only duty which the landlord owes to them is not to expose them to a concealed danger or trap.
If there is a defect in the premises likely to cause injury, but known both to the landlord and the tenant, the landlord
is not responsible for injuries caused to the tenant.
Remedies.— The remedies for private nuisance are—

(1) Abatement
(2) Damages
(3) Injunction
(1) Abatement means the removal of a nuisance by the party injured without recourse to legal proceedings. The
removal must be peaceable, without danger to life or limb, and if it is necessary to enter another's land or
property, after notice to remove the same. Nuisance by an act of commission may be abated without notice
to the person who committed it, but not nuisance from omission (except that of cutting the branches of a
tree overhanging a person's property but without entering upon the land of another person). But, if a
speedy remedy is required and it is unsafe to wait, nuisance by omission can be abated without notice.
The abatement of a nuisance by a private individual is a remedy which the law does not favour. Under the
Indian Easements Act, the dominant owner cannot himself abate a wrongful obstruction of an easement.
A private individual cannot abate a public nuisance, unless it causes him some special and peculiar harm.
Local Bodies, like a Municipality, have generally statutory powers to abate a public nuisance and when they
unreasonably refuse to exercise their power of abatement, a petition under Art. 226 of the Constitution can
be filed for directing them to exercise the statutory power of removing a public nuisance.
Page 80 of 82
(2) The measure of damages is the diminution in the saleable value of property in consequence of nuisance.
(3) In order to obtain an injunction it must be shown that the injury complained of as present or impending is
such as by reason of its gravity or its permanent character, or both, cannot be adequately compensated in
damages. The injury must be either irreparable or continuous. An injunction to prevent an apprehended or
future nuisance will generally not be granted unless the threat be imminent or likely to cause such damage
as would be irreparable once it is allowed to occur. Kuldip Singh v. Subhash Chandra Jain , (2000).
Another category of future nuisance may be when the likely act of the defendant is inherently dangerous or
injurious such as digging a ditch across a highway or in the vicinity of a children's school or opening a shop
dealing with highly inflammable products in the midst of a residential locality. (Ibid )
The normal remedy in case of continuing nuisance is injunction which cannot be lightly denied and damages
granted in lieu thereof. The principles bearing upon this question were laid down in Shelfer v. City of London Elec.
Light Co., (1895) 1 Ch. 287 (CA). which is still good law. The case of Shelfer was a case of nuisance in the form of
noise and vibrations but the principles laid down therein are generally applicable to any case of continuing
nuisance. The principles were culled out from Shelfer in Regan v. Paul Properties, (2007) 4 All ER 48 (CA) which
was a case of continuing nuisance arising from obstruction of light. These principles are are reproduced at page
643.
CHAPTER XXI
FRAUD AND NEGLIGENT MISSTATEMENT
Fraud by Deceit.— The making of a representation which a party knows to be untrue, and which is intended, or is
calculated to induce another to act on the faith of it, so that he may incur damage, is fraud in law. It is not necessary
that the defendant should be benefited by the deceit or that he should collude with the person who is benefited, or
that the false representation should have been made from a corrupt motive of gain to the defendant or a wicked
motive of injury to the plaintiff. An allegation of fraud requires strict proof. (Union of India v. Chaturbhai M. Patel &
Co. ). In order to sustain an action of deceit—
First , there must be fraud, and nothing short of that will suffice.
Secondly , fraud is proved when it is shown that a false representation has been made
(i) knowingly, or
(ii) without belief in its truth, or
(iii) recklessly careless whether it be true or false.
Thirdly , if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no
intention to cheat or injure the person to whom the statement was made provided that the maker of the statement
does not believe it to be true. (Derry v. Peek , the Indian Companies Act, s. 64 ).
The rule in Derry v. Peek does not apply to—

(1) Directors issuing a prospectus (vide the Companies Act, s. 37; the Indian Companies Act, s. 100 ).
(2) Where an estoppel is created.
(3) Where the law of warranty is applicable.
(4) Where there is contractual duty to take care in making the statement.
(5) Where there is a fiduciary relationship between parties.
(6) Where there is a statutory duty to give correct information.
Page 81 of 82
(7) Where a statement is made in relation to property of a dangerous character.

(8) Liability under Hedley Byrne case.
A representation, in order to be fraudulent, must be—

(1) A representation which is untrue in fact. There must be an active attempt to deceive by a statement which is
false in fact and fraudulent in intent. The representation need not be by words, it may be by acts (Pickering
v. Dawson , the wall case). Again, it must be a representation of fact, and must not be a mere expression
of opinion. A suppression of the truth may in some cases amount to a suggestion of falsehood.
Misrepresentation may be implied from a party's conduct. Mere silence with regard to a material fact will
not give a right of action unless
(a) active artificial means have been taken to prevent the other party from discovering the fact for himself;
or
(b) the essence of the transaction implied confidence reposed in the party concealing to divulge all material
facts.
Non-disclosure when there is no duty to disclose is not fraud. But there are circumstances when a duty is
cast on a person to disclose material facts. This duty may arise in several ways:—
(i) a duty which a man owes to the world at large, such as not to leave a loaded gun in a public place;
(ii) a duty arising out of fiduciary relationship between the parties; or
(iii) a duty arising out of the nature of the contract as when it is uberrimae fidei .
(2) A representation which the defendant knows to be untrue or he is indifferent, or careless, as to its truth .
Unless this is so, representation which is false gives no right of action to the party injured by it (Dickson v.
Reuter's Telegraph Co. , the barley case). No action lies upon a representation which the maker honestly
believed to be true, however unreasonable the grounds of his belief (Derry v. Peek , the prospectus case;
Chandelor v. Lopus , the bezoar stone case). On the other hand, honesty of motive does not atone for
knowledge of falsity (Polhill v. Walter , the bill case). But a negligent misrepresentation does not amount to
deceit (Low v. Bouviere , the incumbrance case). The defendant will succeed if he can show that he
honestly believed the representation to be true in the sense in which he understood it provided that it is
sense in which the representation can be reasonably understood.
(3) A representation which was intended or calculated to induce the plaintiff or a third person to act upon it .
Intention to induce a course of conduct is always necessary. Whether the representation is made to the
plaintiff, or to a third party, is immaterial, if it is false to the knowledge of the defendant, and has been
made for the purpose of being communicated to the plaintiff (Langridge v. Levy , the gun case; Longmeid
v. Holliday , the lamp case) or to a class of persons of whom the plaintiff is one (Denton v. Great Northern
Ry ., the time-table case). The misrepresentation should have been made in relation to the transaction in
question (Peek v. Gurney the prospectus case).
(4) A representation which the plaintiff or the third person acts upon and suffers damage . The plaintiff must
show that he was deceived by the fraudulent statement and acted upon it to his prejudice. Fraud without
damage, or damage without fraud, gives no cause of action; where these two concur an action lies
(Paseley v. Freeman , the cochineal case; Horsfall v. Thomas , the cannon case).
The injury must be the immediate, and not the remote, consequence of the representation made. The defendant will
be held responsible for so much of the damage or loss as was necessary, natural, or probable consequence of the
misrepresentation.
A person who commits fraud cannot say that the other party could have discovered the truth by due diligence.
Contributory negligence is also not a defence.
For the liability of a principal for the misrepresentation made by his agent, see the tabular analysis on page 634.
Page 82 of 82
Negligent misstatement.— Derry v. Peak gave birth to the view that there was no liability for a misstatement which
was not dishonest. But liability without dishonesty came to be recognised in contractual and fiduciary relations. The
House of Lords extended this principle to all cases whether such relations were involved or not. (Hedley Byrne Co.,
Ltd. v. Holder ). Thus, all professionals have been subjected to the duty that they must with reasonable care and
competence prepare their statements, certificates and advices and would be liable to any person who has suffered
by acting on these matters. The Privy Council tried to restrict this principle only to cases in which the advice was
offered in the course of one's profession or business. (Mutual Life and Citizens Ins. Co. v. Evatt ). But the Court of
Appeal has re-emphasised that that the range of application would remain fluid. All that can be said is that it would
not apply where the advice is only as a matter of social relation, or without responsibility, or in circumstances which
show either way no commitment to responsibility.
Developing this principle further still, the House of Lords in Smith v. Erie S/Bush , (1989) laid down : “only if it is
forseable that if the advice is negligent the recipient is likely to suffer damage, that there is sufficient proximate
relationship between the parties and that it is just and equitable to impose liability”. In Caparo Industries Plc. v.
Dickman , (1990) the House of Lords held that the auditor of a public company's accounts and financial statements
owed no duty of care to a member of the public at large or to an individual shareholder who relies on the company's
accounts to buy shares in the company and suffers loss by reason of inaccuracies in the accounts and statements.
Subject to the requirement of reasonableness imposed by the Unfair Contract Terms Act, 1977, there would be no
liability when the person giving advice or information makes it clear that he accepts no responsibility for his advice
or statement.
In Deloitte Haskins El Sells v. National Mutual Life Nominees Ltd. , (1993), the Privy Council held that the auditor of
a deposit taking company who was under a statutory duty to report to the trustees of the unsecured depositors if he
became aware of any matter that “in his opinion” was relevant to the exercise of the trustees’ powers or duties, was
not under the common law duty to notify the company's probable insolvency when a prudent auditor would have
done so and thatthe words “in his opinion” suggested a subjective rather than objective test to report only after he
had in fact formed that opinion.
In Spring v. Guardian Assurance Plc ., (1994) the House of Lords held that an employer, apart from any contract,
owed a duty of care to his former employee to take reasonable care in giving character reference to the new
employer.
In Williams v. Natural Life Health Foods Ltd. , (1998) the House of Lords deduced the following four governing
principles from the speech of Lord Goff in Henderson's case: (1) The assumption of responsibility principle in the
Hedley Byrne case is not confined to statements but may apply to any assumption of responsibility for the provision
of services. (2) Once a case is identified as falling within the extended Hedley Byrne principle, there is no need to
embark on any further enquiry whether it is ‘fair, just and reasonable’ to impose liability for economic loss. (3)
Reliance on the assumption of responsibility by the other party will be necessary to establish a cause of action,
because otherwise negligence will have no causative effect. It was held in William's case that a director of a limited
company would only be personally liable for the loss to the negligent advice given by the company if he had
assumed personal responsibility for that advice and the plaintiffs had relied on that assumption of responsibility.
The duty of care in giving professional advice may be owed not only to the recipient of the advice but in some cases
also to his dependants. Thus solicitors may be liable for negligence in preparation of a will which deprives the
dependants of the estate which they would have got had there been no negligence. (see p. 624) That principle has
been extended by the court of appeal to the advice rendered by an insurance company. It was held in Gorham v.
British Telecommunication plc , (2000) that it is fundamental to the giving and receiving of advice upon a scheme
for pension provision and life insurance that the interest of the customers’ dependants would be taken into account
and practical justice required that in case of negligence in that matter the disappointed beneficiaries should have a
remedy against the insurance company.
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CHAPTER I GENERAL PRINCIPLES

1. THE LAW OF TORTS IN INDIA

2(A) Definition of Tort

2(B) Tort and Contract

2(C) Tort and Quasi-Contract

2(D) Tort and Crime

3(B) Wrongful Act

4. GENERAL PRINCIPLE OF LIABILITY

Union Carbide Corporation v. Union of India , 1988 MPLJ 540.

Union Carbide Corporation v. Union of India , 1988 MPLJ 540.

Henderson v. Merrett Syndicates Ltd., supra, p. 530.

CHAPTER II SOME GENERAL ELEMENTS IN TORTS

1. ACT AND OMISSION

2. VOLUNTARY AND INVOLUNTARY ACTS

3(B) Intention, Negligence and Recklessness

3(D) Distinctions Illustrated

4. MALFEASANCE : MISFEASANCE : NON-FEASANCE

See , Chapter XIX, title 1(B)(i)(f), p. 490.

Ibid , pp. 354 (355).

See , text and note 1, p. 102.

PER BAYLEY, J., in Bromage v. Prosser , (1825) 4 B & C 247, 255.

PER LORD WATSON in Allen v. Flood, (1898) AC 1 : 14 TLR 125.

See, titles 3(B) and 3(C), infra .

PER BRIAN, C.J., in Year Book Pasch . 17 Edw., 4 fol. 2, pl. 2.

R. v. Harvey, (1823) 2 B & C 257 (264).

Mayor & C. of Bradford v. Pickles, (1895) AC 587.

STREET, Torts, 6th edition, p.16.

Elsee v. Gatward , (1793) 5 TR 143.

Kelly v. Metropolitan Railway Co ., (1895) 1 QB 944 : 64 LJQB 658 : 72 LT 551.

See , title 3(C), Chapter 1.

CHAPTER III PERSONAL CAPACITY

1. CONVICTS AND PERSONS IS CUSTODY

3. HUSBAND AND WIFE

4A. HIGHWAY AUTHORITY

8. THE STATE AND ITS OFFICERS

8(A) English Law

8(B) Indian Law (i) Historical Background

(ii) Sovereign Immunity

(iii) Public Law Wrongs

(iv) Limitations of Sovereign Immunity

No protection but age taken into account

No liability in tort from void agreement

11 & 12 Geo., VI, c. 58, Sch. 10, Part I.

Raymond v. Honey , (1982) 1 All ER 756, p. 759 : 1983 AC 1 (HL).

R. v. Deputy Governor of Parkhurst Prison , (1990) 3 All ER 687 (CA), p. 709.

See text and note 50, pp. 53, 54.

Scotland v. South African Territories (Limited), (1917) 33 TLR 255.

De Wahl v. Braune , (1856) 1 H & N 178.

The Hoop , (1799) 1 Rob 196, 201.

Bognor Regis. UDC v. Campion, (1972) 2 QB 169 : (1972) 2 WLR 983.

Quartz Hill Gold Mining Co. v. Eyre, (1883) 11 QBD 674.

Metropolitan Saloon Onmibus Co. v. Hawkins , (1889) 4 Hd No. 87 : 28 LJ Ex 201.

Mayor etc. of Manchester v. Williams, (1891) 1 QB 94.

Mersey Docks Trustees v. Gibbs , (1866) LR 1 HL 93.

Stevens v. Midland Counties Ry. Co ., (1854) 10 Ex. 352.