AL-AMEEN COLLEGE OF LAW

HOSUR ROAD, BENGALURU.

MODEL ANSWERS- DECEMBER 2017

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First Semester 3 Year LL.B/Fifth Semester 5 Year B.A.LL.B

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LAW OF TORTS
Q.No.1

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Distinguish between Injuria Sine Damnum and Damnum sine Injuria with thehelp of

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leading cases.
SYNOPSIS

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 INTRODUCTION
 DEFINITION


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MEANING
 CASE LAWS
 MENTAL ELEMENT OF TORTS

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INTRODUCTION LA
In common sense the Law of Torts is the branch of law controlling the behavior of the people in the
society. It is a growing branch of Law and it‟s main aim is to define individual‟s rights and duties in the
light of prevalent standards of reasonable conduct and public convenience.
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The word „tort‟ is derived from the Latin term „Tortum‟ meaning „twisted‟ or a crooked act, which
is equivalent to English term „wrong‟ , therefore tort is a „wrongful act‟
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Definition

1.Salmond: It is a civil wrong for which the remedy is a common law action for unliquidated damages and
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which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.
LL

2. Winfield: 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.
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3.Frazer:- It is an infringement of a right in rem of a private individual giving a right to compensation at the
suit of the injured party.
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Meaning
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When we refer all the above definition tort means as a civil wrong which is redressible by an action
for unliquidated damages and which is other than a mere breach of contract or breach or trust.
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 Tort is a civil wrong

 This civil wrong is other than a mere breach of contract or breach of trust
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 This wrong is redressible by an action for unliquidated damages.

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The essential elements of torts are as follows,

To constitute a tort the following elements must be present.
1. A wrong ful Act committed by the defendant
2. The wrongful act must result in legal damage to another person
 3. The wrongful act must be of such a nature as may give rise to a legal remedy in the form of an
action for damages.

Let us discuss the following elements in detail.

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1. A wrong ful act:-

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The first essential element of a tort is that the defendant must be guilty of having
committed a wrongful act.
A wrongful act is an act which is contrary to law. It also includes an omission to

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perform a legal duty.

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Thus a wrongful act means infringement of a legal duty
2. Legal Damage:-
Yet another essential element of a tort is that wrongful act committed by the

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defendant must result in a legal damage to the plaintiff.
Legal damage means neither actual or pecuniary damages.
Legal damage takes place when there is a breach of legal duty or where plaintiff‟s

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right recognized by law is infringed.
Whether a damage is a legal damage or not can be understood with the help of 2
important maxims

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a. INJURIA SINE DAMNO
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b. DAMNUM SINE INJURIA

a. INJURIA SINE DAMNO: it means,

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„Injuria‟ means infringement of a legally protected interest (ie right) of the plaintiff.
„Sine‟ means without
„damno” means actual physical loss whether in terms of money, comfort, health, service or the
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like.

So, Injuria Sine damno means that if a private right is infringed, the plaintiff will have a
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cause of action even if the actual physical damage is not there.

LL

It means that if a private right is infringed the plaintiff will have a cause of action even
though the plaintiff has not suffered any actual loss or damage.
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Thus, according to this maxim what is necessary is the infringement of a legal right and not
the proof of actual loss or damage.

CASE LAW:
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1. ASHY V/S WHITE

FACTS OF THE CASE
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In this case, the plaintiff was a legally qualified voter of the Borough of Ayles bury and the
defendant was the returning officer.
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The defendant wrongfully, maliciously and fraudulently refused to register the vote of plaintiff.
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Thus the legal right of the plaintiff to cast his vote was infringed. But he did not suffer any actual
loss because the candidate for whom he wanted to tender the vote was elected.
AL

Orders: It was held that the action was allowed on the ground that the violation of plaintiff‟s statutory right
was an injury for which he must have a remedy and was actionable without proff of pecuniary damage.
 2. Bhim Singh v/s State of Jammu and Kashmir. [AIR 1986 Sc. 494]

FACTS OF THE CASE

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In this case the petitioner was an MLA of Jammu and Kashmir Assembly was wrongfully detained
by the police while he was going to attend the Assembly session. He was not produced before the magistrate

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within the requiste period.

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As the consequence of this the member was deprived of his constitutional right to attend the
Assembly session. There was also violation of fundamental right to personal liberity guaranteed under Art

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21 of the constitution.

Orders: In this case Hon‟ble Supreme ordered to pay exemplary damages of Rs.50,000/- to the petitioner

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Thus the maxim “Injuria Sine damno” means that infringement of a legal right will give rise to an
action irrespective of the fact that no actual loss or damage has taken place.

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b. DAMNUM SINE INJURIA

This Maxim means „ that no action will lie if there is actual loss or damage but there has been no

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infringement of legal right”
LA
Where there has been no infringement of any legal right, the mere fact of harm or loss will not render
such act or omission actionable although the loss may be substantial or even irreparable. Damage so done is
called “damnum sine Injuria”
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That is actual or substantial loss without infringement of any legal right and in such cases no action
lies.
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CASE LAW:
1. GLOUCESTAR GRAMMER SCHOOL CASE
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FACTS OF THE CASE

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In this case the defendant who was school master setup a rival school to that of plaintiff‟s and
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because of the competition, the plaintiff had to reduce there fee‟s from 40 pence to 12 pence and thus
suffered damages.

Orders: In this case it was held that no remedy for the loss suffered by them because there was no
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infringement of any legal right.

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2.MOGUL STEAMSHIP COMPANY V/S MAC GREGOR.GOW & COMPANY.

FACTS OF THE CASE

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In this case the defendants were owners of certain ships and in order to secure an exclusive trade for
themselves they formed an association and reduced freight charges.
AL

The plaintiff company thus had to sustain loss because he had to reduce the freight charges for
compensation. He filed for damages.
Orders: It was held no action lay for the acts of the defendants were done with the lawful objects and the
plaintiff had no cause of action.

The Maxim clearly states that where there is no infringement of legal right there is no damages

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[remedy]

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3.LEGAL REMEDY

The Third essential characteristics of a tort is that the wrongful act complained of must be such that

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it gives rise to a legal remedy in the form of action for damages.

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The essential remedy for a tort is an action for damages. Although there are other remedies also, yet,
it is principally the right to damages that brings such wrongful acts within the category of torts.

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CONCLUSION

Hence it can be concluded that the above mention 3 important essentials are required and are inter-

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related with each other and damages have always been essential characteristic which distinguishes tort form
another civil injury.

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Q.No.2
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Discuss “Vicarious Liability” with help of decided cases.
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SYNOPSIS

 Introduction

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Definition
 Modes of vicarious liability
 Vicarious liability is based on two important maxims

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MASTER AND SERVANT

 MAIN INCIDENTS OF MASTER‟S LIABILITY:-
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Introduction
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A general rule is that „ a man is liable only for his own act but there are certain circumstances in
which a person is liable for the wrong committed by others. This is called „Vicarious Liability‟

Definition
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1. Salmond: In general a person is responsible for his own acts, but there are exceptional cases in
which the law imposes on him vicarious responsibility for the acts of another. However blameless
himself.
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Meaning.
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So, the term vicarious liability denotes the Liability which “A” may incur to “C” for damage caused
to “C” by the negligence or other torts of “B”.
AL

Modes of vicarious liability

a. Liability by ratification. Ex. Contracts, agreements.
b. Liability arising out of special relationship
 c. Liability for abetment.

 law of tort deal with vicarious liability in Liability arising out of special relationship. The
relationship are as follows

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 Master and servant

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 Owner and Independent contractor
 Principal and agent
 Company and its director

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 Firm and its partners

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 Guardian and ward or father and child
 Husband and wife

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Vicarious liability is based on two important maxims

1. Qui facit per alium facit per se:-

2. Respondent superior

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1. Qui facit per alium facit per se:-

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It means „that he who acts through another is deemed in law as doing it himself‟
The masters responsibility for the servant‟s act had also its origin in this principle. The reason
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is that a person who puts another in his place to do a class of acts in his absence.

 The master leaves the servant to determine, according to the circumstances that arise,
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when an act of that class of work is to be done.

 Trust him for the manner in which it is done
 Consequently the master is answerable for the wrong of the person so entrusted
 For either in the manner of doing such an act or in doing such an act under
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circumstances in which it ought not to have been done

2. Respondent superior:-
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Another Maxim is respondent superior ie the superior must be made responsible or let the principal
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be liable.
In such cases not only he who obeys but also he who command becomes equally liable.
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This rule has its origin in the legal presumption that all acts done by the servant in and about his
master‟s business are done by his master‟s express or implied authority and are in truth, the act of the
master.
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The master is answerable for every such wrong of the servant as is committed in the course of his
service, though no express command or privity is proved.
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In law of tort master and servant liability is dealt with.

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MASTER AND SERVANT

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In order that the master may be held liable for the tort of his servant following conditions should be
fulfilled.
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a. The person committing the tort must be servant

b. The servant committed the tort while acting in the course of employment of his master
 c. The act must be a wrongful act authorized by the master or a wrongful and unauthorized mode
of doing some act authorized by master.

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Since, master is liable for wrongful act of a servant 2 things should be know that is

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1. who is a servant?
2. What is the course of employment?

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1. who is a servant?

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To decide who is a servant the Theory of control was levied but it had its own hardship in
modern days because of various and different employment like, industries, factories, hospital
, communication etc.

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case law
1. In short v/s J.W. Henderson Ltd

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In this case Lord Thankerton stated that
There must be contract of service between the master and servant has laid down the following 4
indications

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1. The master‟s power of selection of his servant
2. The payment of wages or other remuneration LA
3. The master‟s right to control the method of doing the work &
4. The master‟s right of suspension or dismissal

Again this view was not satisfactory because the 3rd element states about control.
OF

In another Case
Reddy Mixed Concrete (South East) V/s Minister of Pensions and National Insurance.
GE

The contract of service may be said to exist if.

1. The servant agrees that in consideration of a wage or other remuneration, he will provide his own
skill and work in the performance of some service for his master.
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2. He agrees expressly or impliedly, that in the performance of that service he will be subject to the
LL

other‟s control in a sufficient degree to make that other master

3. The other provisions of the contract are consistent with its being a contract of service.
CO

Thus a servant may be defined as any person employed by another to do work for him on the terms that
he is to be subject to the control and directions of his employer in respect of the manner in which his work is
to be done.
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A servant is thus an agent who works under the supervision and direction of his employer, engaged to
obey his employer‟s order from time to time.
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M

2. The course of employment:-

A servant is said to be acting in the course of employment if,
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1.The wrongful act has been authorized by the master.

2. The mode in which the authorized act has been done is wrongful or unauthorized.
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1. Case Law
Rickett‟s Case
Facts of the case
 In this case the driver of the omnibus asked the conductor to drive the omni-bus and turn it round to
make it face in the right direction for the next journey. But in doing so an accident took place and severe
damages also occurred.

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Orders:-It was held that master is liable because the driver was negligent in the performance of the master‟s

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work.

2. Case Law
Maharastra State V/s Kanchan Mala Vijay Singh [AIR 1995 sc 2499]

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Facts of the case

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In this case the Hon‟ble Supreme court has explained the meaning of “in course of Employment”

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The court stated that the law is well settled that the master is vicariously liable for the acts of his
servants acting in the course of employment. The test is whether the acts was done on the owner‟s business
or that it was proved to have been impliedly authorized by the owner.

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MAIN INCIDENTS OF MASTER‟S LIABILITY:-

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Through 6 ways the master becomes liable for the wrong done by servants in the course of their
employment. LA
1. The wrong committed by the servant may be natural consequences of something done by him with
ordinary care in execution of his master‟s specific orders.
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Case Law
Gregory V/s Piper
Facts of the case
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In this case there was some dispute between the defendant and the plaintiff who where neighbours
about the right of way.
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LL

In order to obstruct the plaintiff form using the way the defendant instructed his servant to place
rubbish across the pathway, but do it so skillfully that it did not touch the plaintiff‟s wall.
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The servant carried out the orders of the master carefully, but in course of time the heaped up rubbish
began to single down with the result that a portion of it touched the plaintiff‟s wall.

The plaintiff brought an action for trespass against the defendant.

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ORDERS:- It was held that the defendant was answerable, because the initial act which the servant did was
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an authorized one, and the damage resulting was the natural consequence of the work done by him, however
carefully it might have been done.
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2. Master will be liable for the negligence of his servant.

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Case Law
Bayley v/s Manchester shiffed and Linocolnshire Rly
Facts of the case
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In this case the duties of the porter of the defendant company to prevent passengers from getting into
the wrong train.
 The plaintiff a passenger was seated in the right train but the porter under the mistaken belief that
the plaintiff was in the wrong train violently put him out of the carriage .

The act of the porter was certainly mistaken manner of doing of the work entrusted to him,

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nevertheless the work was done in the course of the servant‟s employment and the defendant was held liable.

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3. Servant‟s wrong may consist in excess of mistaken execution of a lawful authority, but 2 things have
to be established.
a. It must be shown that the servant intended to do on behalf of his master something which he was

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in fact authorized to do.

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b. It has to be proved that the act if done in a proper manner would have been lawful.
4. Wrong may be a willful wrong but doing on the master‟s behalf and with the intention of serving his
purpose.

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5. Wrong may be due to the servant‟s fraudulent act.
A master is liable also for the wrongful acts of his servants done fraudulently. It is
immaterial that the servant‟s fraud was for his own benefit.

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6. Wrong may be due to the servant‟s criminal act:-
Though there is no such thing as vicarious liability in criminal proceedings, yet in a civil

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action a master is liable in respect of the criminal acts a servant, provided they are committed in the
course of employment. LA
Case law
Morris v/s C.W.Martin and sons Ltd
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In this case the plaintiff had sent 5 coats to “x” to be cleaned and “X” with her permission sent it to
the defendants, who were specialist cleaners. The defendants handed the coat to their servant “M” to clean it
and “M‟ stole the coat.
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Orders: It was held by the court that the defendants were liable
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CONCLUSION :
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It can be concluded that under the law of tort the master is liable for the wrongful acts
committed by his servant under the course of employment.
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Q.No.3

Discuss „Vis major‟ and „volenti non fit injuria‟ as general defence with the the help of
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decided cases.
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Vis Major or Act of God.

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Act of God is a defence used in cases of torts when an event over which the defendant has no control over
occurs and the damage is caused by the forces of nature. In such cases the defendant will not be liable in tort
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law for such inadvertent damage. Act of God or Vis Major or Force Majeure may be defined as
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circumstances which no human foresight can provide against any of which human prudence is not bound to
recognize the possibility, and which when they do occur, therefore are calamities that do not involve the
obligation of paying for the consequences that result from them. Black‟s Law Dictionary defines an act of
God as “An act occasioned exclusively by violence of nature without the interference of any human
agency.” A natural necessity proceeding from physical causes alone without the intervention of man. It is an
accident which could not have been occasioned by human agency but proceeded from physical causes
alone.”When a defendant pleads act of God as an answer to liability, he may deny that he was at fault.

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Sometimes, however, the defendant, when he relies on this plea, denies causation. He may concede that he

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was negligent but contend that, even if he had taken reasonable care, the damage about which the plaintiff
complains would still have occurred and hence he should not be held guilty for those damages. To

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understand this we an illustration can be discussed. Suppose that D, an occupier, negligently omits to bring a

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dangerously unstable fence on his property into repair. During a ferocious storm the fence collapses onto his
neighbour‟s (P‟s) house. P sues D in negligence. D relies on the defence of Act of God and brings

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unchallenged expert evidence to show that the storm was so fierce that even a sturdy fence would have given
way. In pleading act of God, D is not denying fault. He is denying that his fault caused P‟s damage. This is a
way in which the defence of Vis Major can be used. The essential conditions that the defendant needs to

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prove to be able to successfully use the defence of Act of God are as follows. Firstly, it is important that the
event that occurred was due to the forces of nature or unnatural circumstances. The event should be proved

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to be in excess of the normal standards. So only in cases of heavy torrential rainfall or natural disasters like
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earthquakes, tsunami etc this defence can be invoked. „A‟ regularly goes to a park and gets injured one rainy
day when a branch accidentally falls on him. The park authorities cannot use the defence of act of god as the
OF

rainfall was normal and they were negligent in not maintain the park during the monsoons when it is
reasonably foreseeable that the trees need more maintenance during the rains to avoid such an event from
occurring. In the case of Nichols v. Marshland the defendant has a number of artificial lakes on his land.
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Unprecedented rain such as had never been witnessed in living memory caused the banks of the lakes to
burst and the escaping water carried away four bridges belonging to the plaintiff. It was held that the
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plaintiff‟s bridges were swept by act of God and the defendant was not liable. In another case Ryde vs.
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Bushnell (1967), Sir Charles Newbold observed, “Nothing can be said to be an act of God unless it is an
occurrence due exclusively to natural causes of so extraordinary a nature that it could not reasonably have
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been foreseen and the result avoided”. It is also important to prove that the defendant had no knowledge or
could not have done anything about the event to try and reduce the damages. As set out in Tennant v. Earl of
Glasgow “Circumstances which no human foresight can provide against, and of which human prudence is
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not bound to recognize the possibility, and which when they do occur, therefore, are calamities that do not
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involve the obligation of paying for the consequences that may result from them” fall under the category of
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Act of God. In the Indian case of Ramalinga Nadar v. Narayana Reddiar the plaintiff had booked goods with
the defendant for transportation. The goods were looted by a mob, the prevention of which was beyond
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control of defendant. It was held that every event beyond control of the defendant cannot be said Act of
God. It was held that the destructive acts of an unruly mob cannot be considered an Act of God.
AL
Volenti non fit injuria- Volenti non fit injuria is a defence of limited application in tort law. A direct
translation of the latin phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. Where the
defence of volenti applies it operates as a complete defence absolving the Defendant of all liability. It is

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often stated that the Claimant consents to the the risk of harm, however, the defence of volenti is much more

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limited in its application and should not be confused with the defence of consent in relation to trespass. The
defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in full

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knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions. There is

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a considerable overlap with contributory negligence and since the introduction of the Law Reform
(Contributory Negligence) Act 1945, the courts have been less willing to make a

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finding of volenti preferring to apportion loss between the parties rather than taking an all or nothing
approach.

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The requirements of the defence are thus:

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1. A voluntary LA
2. Agreement
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3. Made in full knowledge of the nature and extent of the risk

Hall v. Brooklands Auto Racing Club- The plaintiff was a spectator at a motor car race being held at
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Brooklands on a track owned by the defendant company. During the race, there was a collision between two
cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the
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plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator
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could foresee, the defendant was not liable.

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Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two strangers
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took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the
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jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of
the same.
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It was held that neither the driver nor his master could be made liable, first, because it was a case of sheer
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accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti
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non fit injuria was applicable to this case.

Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking photographs at a horse show while
he was standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the
bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the horses‟ course

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and there he was seriously injured by the galloping horse. The horse in question won the competition. It was

OR
held that since the defendants had taken due care, they were not liable. The duty of the defendants was the
duty of care rather than duty of skill.

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Q.No.4
What is Malicious Prosecution? Discuss its various essentials.
Malicious prosecution is the malicious institution against another of an unsuccessful criminal, bankruptcy or

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liquidation proceeding, without reasonable or probable cause. It is also known as “abuse of process”, that is,
abuse of process of law for personal interest.

,B
In Saville v. Roberts, Halt CJ classified damage for the purpose of this tort as of 3 kinds, any of which might

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ground the action. Malicious prosecution might damage-
LA
a. A person‟s fame (i.e. his character)
b. Safety of his person
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c. Security of his property by reason of his expense in repelling and unjust charge

Essentials
GE

In an action for malicious prosecution, the plaintiff must prove the following:
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1. The defendant prosecuted him

LL

2. The prosecution ended in his favour

3. The prosecution lacked reasonable and probable cause
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4. The defendant acted with malice

5. The plaintiff suffered damage to his reputation or to the safety of person or to security of his property
(only under English law). In India, only for aggravated damages.
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EE

A. Prosecution

It is not necessary that the defendant has to be the prosecutor. The defendant, though, should in substance be
M

the person responsible for the prosecution being brought. Thus there are two elements involved herein:
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a. Plaintiff was prosecuted

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b. Defendant was the prosecutor

To prosecute is to set the law in motion by an appeal to some person clothed with judicial authority in regard
to that matter, i.e. the defendant should set the Magistrate in motion. An investigating officer will not be
liable unless he was party to the falsity of the case. Similarly, no witness or pathologist who acts in good
faith can be held liable.

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OR
Martim v. Watson (1995) It was laid down that where a person falsely and maliciously gives a police officer
information indicating that some person is guilty of a crime and is further willing to give evidence in Court,

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he is clearly the prosecutor in the case.

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B. Favourable termination of the prosecution

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The plaintiff must show that the prosecution ended in his favour, which can take place due to various
reasons like:
a. A verdict of acquittal

,B
b. By discontinuance of the prosecution by leave of the Court
c. By quashing of the indictment for a defect in it

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d. By corum non judice proceedings LA
There has been significant change in law in this area:
Reynolds v. Kennedy (1784) there can be no action if the plaintiff had been convicted, even if the conviction
OF

was later appealed.

GE

The law does not regard the above principle in today‟s scenario.
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Shiv Shanker Patel v. Phulki Bai (2007) Plaintiff faced criminal prosecution for 8 years for theft of crops
LL

because of wrongful prosecution in fact of point. Rs. 10,000 was paid as damages for loss of reputation and
mental agony
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C. Lack of Reasonable and Probable Cause

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In order for there to be a reasonable and probable cause, following conditions have to be satisfied:
1. An honest belief of the accuser in the guilt of the accused
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2. Such belief to be based on an honest conviction of the existence of circumstances which led the accused
to that conclusion.
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3. Belief is on such grounds as would lead any fairly cautious man in the defendant‟s situation to believe so.
-A

4. Circumstances so believed by the accuser must be such as amount to a reasonable ground for belief in the
guilt of the accused.
AL

Abrath v. North Eastern Railway (1886) laid down 3 principles necessary to form a reasonable & probable
cause:
1. Person complaining took due care to be informed of the facts
2. He honestly believed his allegations to be true
3. The facts were such as to constitute prima facie evidence.

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D. Malice

OR
The prosecution was instituted with malice, i.e. with an indirect and improper motive and not in furtherance

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of justice. The bringing of charge false to the knowledge of the prosecutor imports in law malice sufficient

GA
to support a civil action.

AN
Hicks v. Faulkner. If the defendant has honestly and bona fide instituted the prosecution, he is not liable
even though due to a defective memory, he had forgotten the true facts and has gone on with the
prosecution.

,B
State of Tripura v. Shri Hardhan Choudhary (2006) Forest officials filed cases against plaintiff for felling

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trees without any evidence. Plaintiff was acquitted and was rewarded Rs. 25,000 for malicious prosecution.
LA
E. Suffered in person, reputation or pocket
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Het Ram v. Madan Gupta (2007) Plaintiff was maliciously charged by defendant for setting fire to his house.
Plaintiff was acquitted and rewarded Rs. 55,000 for mental agony, loss of business and litigation expenses.
GE

A. Sharma v. P. Bewa (2007) Plaintiff accused for outraging the modesty of women on unfounded grounds.
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He was acquitted and the defendant was held liable to pay damages.
LL

5. Explain the maxim “Injure non remota causa sed proxima spectator.
CO

Causa proxima, non remota spectator is a Latin phrase. It means „the immediate, and not the remote cause is
to be considered.‟ This is a maxim of causation that is applied both in marine and general insurance.
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Pursuant to this principle, the cause nearest in the order of causation, without any efficient concurring cause
to produce the result, must be considered as the direct cause. For example, if a ship foundered during a
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storm, the cause of her loss was considered bad weather conditions, regardless of any other factors that
might have contributed to her foundering.
M
-A

Q.No.5

What is trespass to a land? What are its various forms? Explain the remedies available
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against it?

Synopsis:
 I) Introduction
II) Definition
III) Various forms of trespass

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a) Entering in to some one‟s possession

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b) Actual and constructive possession
c) Trespass by animals

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d) Remaining on land

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e) Aerial trespass

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IV) Remedies
a) Injunction
b) Expulsion

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c) Re-entry
d) Damages

W
e) Self help LA
f) Declaration of title
g) Mesne profit
OF

h) Distress damage feasent

i) Injunction
V) Conclusion
E GE

Explanation
LL
CO

I) Introduction: Trespass to land occurs where a person directly enters upon another's land without
permission, or remains upon the land, or places or projects any object upon the land.
N

This tort is actionable per se without the need to prove damage.

EE

By contrast, nuisance is an indirect interference with another's use and enjoyment

of land, and normally requires proof of damage to be actionable
M
-A

II) Definition: A forcible entry on the land of another with strong hand against the will of the owner is
AL

trespass which is called trespass to land or trespass to property.

III) Various forms of trespass:

 a) Entry upon Land: Walking onto land without permission, or refusing to leave when permission
has been withdrawn, or throwing objects onto land are all example of trespass to land.

b) Actual and Constructive Possession: Possession may be actual or physical. A owns a house and

E
he lives in it. Here A is in actual physical possession of house. The owner of property may be in

OR
possession of his property through others. Suppose A owns a house at Calcutta he lets it out to a
tenant. Tenant is in the actual possession of the property where as A is in constructive possession

L
of it.

GA
Example A owns a piece of land and is in possession of it. The land being near some big river is
submerged under water and it remains under water for two years. Here though A could not

AN
exercise any act of possession over the property for two years, he will be presumed to be in
constructive possession of it all along.

,B
c) Trespass by animal:

W
If a man‟s cattle trespassed into the land of another, and destroyed the crop, the law deems that
LA
the owner of the cattle himself did the trespass, and holds him liable.

d) Remaining on land:
OF

Where a person is given permission to enter into the premises for particular purpose, the person
shall have to leave the premises after work is done as per permission.
GE

Example:

A person purchase to see a picture for first show. After the completion of picture, he should
E

vacate the theatre. If he remains there, and intends to see the second show, he becomes
LL

trespasser.
CO

e) Aerial trespass:

The owner of the land or building shall enjoy the aerial space above the surface. The neighbor
N

has no right to encroach such aerial space by constructions or projections, sign boards, etc.
EE

However, the state can restrict the construction of building to certain limited floors by a statute
M

IV) REMEDIES
-A

a) Injunction
AL
The court may order the defendant to move from the claimants land. It is a remedy to prevent further
trespass. In cases of threatened trespass or where the trespass is of a continuing nature, the claimant may
seek an injunction.

E
OR
b) Expulsion

L
The person who is entitled to procession may request a trespasser to leave and if the trespasser refuses, may

GA
remove him from the land, using no more force than is reasonably necessary. However, if the force used in
turning out a trespasser is excessive the person who used such force himself commits a trespass upon the

AN
person of the person removed.

c) Re-Entry

,B
The person entitled to possession can enter or re-enter the premises. He must do so in a peaceful manner

W
subject to the common law rights to eject a trespasser. LA
d) Damages
OF

If the trespass is trivial or there is no actual damage the damage will be nominal. If the damage is done to the
land the measure of damage is usually to the diminution in value of the land, or such amount as will
GE

compensate the plaintiff for his loss. The cost of reinstatement for example rebuilding will sometimes be the
correct measure. Exemplary damages may have been awarded where there has been arbitrary or
E

unconstitutional trespass by a government official or where the defendant cynically disregards the plaintiff‟s
LL

rights with the object of making a gain from his unlawful conduct.
CO

f) Self Help
N

The party in possession may use reasonable force to resist wrongful entry by trespasser e.g. by erecting
fences and putting on barbed wire fences. In cases of security dogs, he should have control over it and notify
EE

people about the dog in every entrance.

M

g) Declaration Of Title
-A

Was formerly called ejectment .It‟s an action by which the possessor of land seeks a court order to recover
AL

it? It‟s usually achieved by the claimant proving his /her title to land; he/she can now take action against the
squatters.
 h) Mesne Profits

This is usually an addition to the action for recovery of possession of land. They are consequential damages

E
given to the claimant for the time he/she has been from that land. It aims at recovering the last use of

OR
property. An action lies for the damage which the claimant has suffered through being out of possession of
land; this includes profits taken by the defendant during his occupation and damages for deterioration and

L
the reasonable cost of getting possession.

GA
i) Distress Damage Feasant

AN
Is where a chattel is unlawfully on the claimants land and has caused actual damage, then the claimant may
retain the chattel until the damage has been paid for. A football kicked through the window may be retained

,B
until the damaged window is paid for.
Q.No.6

W
Discuss the principles of Strict Liability and Absolute Liability.
LA
Concept of strict liability
Concept of Absolute liability
OF

Conclusion.
Introduction.
GE

The basic principal of Law that is Enjoy your own property in such a manner as not to injure that of another
person. But there are chances of causing harm and injury to others. If any person took all appropriate steps
E

to prevent such mis happenings then also any harm caused to the plaintiff he is held liable. The strict liability
LL

principle is impose upon him even though there is no fault upon him. The principle of strict liability evolved
in the case of Ryland‟s v Fletcher. In the year 1868, the principle of strict liability states that any person who
CO

keeps hazardous substances on his premises will be held responsible if such substances escape the premises
and causes any damage. Going into the facts of the case, F had a mill on his land, and to power the mill, F
built a reservoir on his land. Due to some accident, the water from the reservoir flooded the coal mines
N

owned by R. Subsequently, R filed a suit against F. The Court held that the defendant built the reservoir at
EE

his risk, and in course of it, if any accident happens then the defendant will be liable for the accident and
escape of the material. Rylands-v.Fletcher- the principle laid in this case, it can be said that if a person
M

brings on his land and keeps some dangerous thing, and such a thing is likely to cause some damage if it
-A

escapes then such person will be answerable for the damaged caused. The person from whose property such
substance escaped will be held accountable even when he hasn‟t been negligent in keeping the substance in
AL

his premises. The liability is imposed on him not because there is any negligence on his part, but the
substance kept on his premises is hazardous and dangerous. Based on this judicial pronouncement, the
concept of strict liability came into being. There are some essential conditions which should be fulfilled to
categorize a liability under the head of strict liability.
Essentials of Strict Liability.

E
a) Dangerous Substances: The defendant will be held strictly liable only if a “dangerous” substances escape

OR
from his premises. For the purpose of imposing strict liability, a dangerous substance can be defined as any
substance which will cause some mischief or harm if it escapes. Things like explosives, toxic gasses,

L
electricity, etc. can be termed as dangerous things.

GA
b) Escape: One more essential condition to make the defendant strictly liable is that the material should
escape from the premises and shouldn‟t be within the reach of the defendant after its escape. For instance,

AN
the defendant has some poisonous plant on his property. Leaves from the plant enter the property of the
plaintiff and is eaten by his cattle, which as a result die. The defendant will be liable for the loss. But on the
other hand, if the cattle belonging to the plaintiff enter the premises of the defendant and eats the poisonous

,B
leaves and die, the defendant would not be liable. In the judicial pronouncement of Reads v. Lyons & Co it
was held that if there is no escape, the defendant cannot be held liable. C) Non-natural Use: To constitute a

W
strict liability, there should be a non-natural use of the land. In the case of Ryland‟s v. Fletcher, the water
LA
collected in the reservoir was considered to be a non-natural use of the land. Storage of water for domestic
use is considered to be natural use. But storing water for the purpose of energizing a mill was considered
non-natural by the Court. When the term “nonnatural” is to be considered, it should be kept in mind that
OF

there must be some special use which increases the danger to others. Supply of cooking gas through the
pipeline, electric wiring in a house, etc. is considered to be the natural use of land. For instance, if the
GE

defendant lights up a fire in his fireplace and a spark escape and causes a fire, the defendant will not be held
liable as it was a natural use of the land.
E

Concept of Absolute Liability:

LL

The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus the
exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union of India. This is
CO

one of the most landmark judgment which relates to the concept of absolute liability. The facts of the case
are that some oleum gas leaked in a particular area in Delhi from industry. Due to the leakage, many people
N

were affected. The Apex Court then evolved the rule of absolute liability on the rule of strict liability and
stated that the defendant would be liable for the damage caused without considering the exceptions to the
EE

strict liability rule. According to the rule of absolute liability, if any person is engaged in an inherently
M

dangerous or hazardous activity, and if any harm is caused to any person due to any accident which occurred
during carrying out such inherently dangerous and hazardous activity, then the person who is carrying out
-A

such activity will be held absolutely liable. The exception to the strict liability rule also wouldn‟t be
considered. The rule laid down in the case of M.C Mehta v UOI was also followed by the Supreme Court
AL

while deciding the case of Bhopal Gas Tragedy case. To ensure that victims of such accidents get quick
relief through insurance, the Indian Legislature passed the Public Liability Insurance Act in the year 1991.
Conclusion.
The rule of strict liability and absolute liability can be seen as exceptions. A person is made liable only when
he is at fault. But the principle governing these two rules is that a person can be made liable even without his
fault. This is known as the principle of “no fault liability.” Under these rules, the liable person may not have

E
done the act, but he‟ll still be responsible for the damage caused due to the acts. In the case of strict liability,

OR
there are some exceptions where the defendant.
Q.No.7
Define the term „Consumer‟. State the rights and remedies available for the consumers

L
under Consumer Protection Act, 1986.

GA
Synopsis:-
 Introduction.
 Meaning of Consumer.

AN
 Rights of Consumer.
 Kinds of Remedies.
 Conclusion.

,B
Introduction.
In India there are certain problems like illiteracy, poverty, ignorance, and backwardness existing. The
trading community is well organized but the consumers are still unorganized.

W
Consequently there exploitation continues unchecked. It would be correct when voluntary organization
come forward to educate the consumers to protect their rights and privileges. The Consumer Protection Act,
LA
1986 seeks to protect the interest of the consumers.
Meaning of Consumer.
The term “consumer” is defined under section 2(1)(d) of the Consumer Protection Act, 1986. A consumer is
a person
OF

a) who buys goods for consideration which has been paid or promised or partly paid or
parly promised;
b) who uses such goods with permission of the buyer;
c) who hires or avails of any services for consideration which has been paid or promised or
GE

partly paid or partly promised;

d) who is a beneficiary of such services with the approval of the buyer.
E

Rights of Consumers.
LL

The Consumer Protection Act, 1986 has recognized the following six rights of the consumers:

 Right to consumer education.

CO

The right to consumer education is an important right available to the consumers. Product
information in the market and proper functioning of legal system it is necessary that knowledge of
availability of the legal remedy should be widely explained and advertised and make the consumers
aware of their rights.
N

 Right to safety.
EE

The consumers have the right to get protected from the hazardous goods hich are harmful to their life
and property. Ex: Adulterated food is dangerous to life, week cement dangerous for the property.
M

 Right to seek redressal.

The consumer has been given the right to seek redressal against unfair trade practices or exploitation.
-A

The consumer can seek remedy for the loss by filing their complaint under Consumer Disputes
Redressal Agencies. There is three tier three tier Redressal Agencies i.e District Forum, State
AL

Commission and National Commission.

 Right to be heard.
Right to be heard includes right to be assured that consumer interest will receive due consideration at
appropriate forums. The consumers disputes should resolved in a fair and speedy manner.
 Right to choose.
 The right to choose means the right to be assured. There are no of variety of goods available in the
market. Fair and effectiveness must be encouraged in the products in order to provide consumers
with greatest range of choice among products and services at the reasonable price.
 Right to information.

E
The consumer has been given the right to be informed by the producer about the quality, quantity,
potency, purity, standard and price of goods so as to protect the consumer against unfair trade

OR
practices. The right to obtain adequate information is an important right which enables the consumer
to take intelligent decision at the time of purchasing any goods or hiring any services.

L
Kinds of remedies / refliefs to the consumers.
Section 14 of the Act empowersbthe Consumer Redressal Authorities to provide one or more of the

GA
remediesnif it is satisfied that the goods complained against suffer frem any of the defects specified
complaint or there are deficiencies in the service:-
I. Removal of defects.

AN
The Redressal agencies can order for the removal of defects in goods if it is satisfied only when the defect is
pointed out by the appropriate laboratory. Even if the opposite party admits that there is a defect or if it is
apparent it can order its removal.

,B
II. Replacement of goods.
Where it is possible to remove the defect without impairing the performance or quality of goods, the
Redressal agencies can order for the replacement of goods.

W
III. Refund of price or charges.
In cases where the removal of the defects is not possible for any reason the Redressal agencies can order for
LA
the return of price of goods or charges of the services to the complainant.
IV. Compensation for loss or injury due to negligence.
The Consumer Forums can order the opposite party for the payment of compensation for damage caused to
the complainant. If he fails to prove negligence he will not be entitled to any relief.
OF

V. Removal of defect or deficiencies in services.

The Consumer Forums can order for the removal of defects or deficiencies in the services only when the
defect as pointed by the appropriate laboratory. It can also order the removal of defects and deficiencies in
GE

service even ithout laboratory testing and the opposite party cannot raise this issue.

VI. Discontinuance or repetation of unfair trade practices or restrictive trade practices.

E

The Consumer Forums can order the trader indulging in unfair trade practices or restrictive trade practices to
LL

stop and not to repeat it again. In such cases the complainant is not required to prove negligence as such
practices are illegal. But for determining the amount of compensation the Forum ill require the proof
regarding the loss suffered by the complainant.
CO

Conclusion.
The protection of the consumers has become very essential as there is demand in the supply of the products.
The demand has made the manufactures to fill the markets with spurious goods. As a result of such goods
the consumers are suffered from loss or injury to their life or property. For the protection of consumers the
N

Consumer District Redressal Agencies has recognized the consumer rights and has made availability of
remedies for the loss incurred by the consumers.
EE

Q.No.8
M

Write a Short note on the following.

-A

a) Defamation
Introduction
AL

A man‟s reputation is his property, more valuable than other property. Every man has a right to have
his reputation preserved inviolate. It is right in rem means a right against all the world.

Definition:
1. Winfield:- Defamation is the publication of a statement which tends to lower a person in the
estimation of right thinking members of society generally or which tends to make them shun or avoid
that person.

E
Defamation is the publication concerning a person of a statement in words, writing by pictures or

OR
significant gestures which exposes such person to feeling of hatered, redicule or contempt whereby
he suffers injury to his reputation.
Thus defamation consists in using any language or representation oral or written tending to

L
bring the person of whom it is published into hatred, redicule, or disgrace or to injure him in respect

GA
of his vocation.

Essential of defamation:

AN
Conditions of liability for defamation,
1. The statement must be defamatory
2. The statement must refer to the plaintiff &

,B
3. The statement must be published.

The kinds of defamation are as follows.

W
1.Libel
2.Slander
LA
1.Libel :- a libel is a publication of a false and defamatory statement in some permanent from
tending to injure the reputation of another person without lawful justification or excuse
OF

In an action for libel the statement complained of must be false, permanent in nature and
published.
Libel must be in some permanent and visible form such as writing, printing, pictures, or even
GE

by means of a cinema film or gramophone record.

Libel is in all cases actionable per se that is without proof of actual damage when a statement is
E

made in a permanent form the law presumes that of necessity the person defamed has suffered
LL

damages.
CO

Case Law
Balram V/s Sukh sampat Lala [AIR 1975 Raj 11]

Facts of the case

N

In this case the plaintiff was a property broker, who used to deal in property. The defendant
EE

in “Lok Jiwan” a daily newspaper published an advertisement which related to plaintiff in which
the plaintiff was imputed with doing fraudulent business.
For this publication the plaintiff brought an action against the defendant and the publisher of
M

the advertisement.
-A

Order: The court accepted the contention of the plaintiff and decreed the suit in the favour of
the plaintiff.
2.SLANDER:-
AL

A slander is a false and defamatory, verbal or oral statement in transitory forms intending to
injure the reputation of another without lawful jurisdiction or excuse.
 In slander the defamatory statement is made in spoken words, or in some other transitory
form, whether visible such as gestures or in articulate but significant sound.
Slander when actionable per se

E
Slander is actionable one on proof of special damage mere loss of reputation is not sufficient

OR
to constitute an action for spoken words, there must be loss of some material advantage some
loss which is pecuniary or at any rate, capable of being estimated in money.

L
In the following cases , however slander is actionable per se is special damage to the plaintiff

GA
need not be proved.
1. When criminal offence is charged
2. Imputation of virulent disease

AN
3. Incompetence of unfitness for office, profession or trade
4. Imputation of unchastity of women or girl
5. Aspersion on caste.

,B
Conclusion

W
It can be concluded that no person should not speak or defame any person in the society because
the statutes or reputation of the person will be the important and precious property of any person
LA
in the society without which he cannot exist.

b) Nuisance
OF

Introduction

The word Nuisance is derived from the French word “nutre” and “latin” term “nocere” which means
„ to hurt or to annoy”.
GE

Definition
E

It has been defined as anything which is injurious to health or offending to the senses and which
LL

causes injury or damage or annoyance or discomfort to others.

Essentials of Nuisance
CO

In order that nuisance is actionable tort it is essential that there should exist.

1.Wrongful Act
N

2.Damage or loss or inconvenience or annoyance caused to another.

EE

Examples: Noise, smell , pollution of air, water etc…

M

The 2 main heads of Nuisances are,

-A

1. Injury to the property

2. Interference with personal discomfort.
AL

Definitions

Winfield: a tort of nuisance means an unlawful interference with a person‟s use or enjoyment of land or
some right over, or in connection with it.
Salmond: The wrong of nuisance consists in causing or allowing without lawful justification the escape of
any deleterious thing from his land or from elsewhere into land in possession of the plaintiff,. ex. Water,
smoke, smell, fumes, gases, noise, vibrations, electricity, disease, germs, animals etc….

E
Meaning

OR
Nuisance is commonly a continuing wrong that is to say it commonly consists in the establishment or
maintenance of some state of things which continuously or repeatedly caused the escape of obnoxious things
on the plaintiff‟s land.

L
GA
Case law

Ushaben Navinchandra Trivedi v/s Bhagya Laxmi Chitra Mandri, [AIR 1978 Guj 13]

AN
Facts of the case

In this case the plaintiff filed a suit claiming a permanent injunction against the defendant (producer,

,B
director, writer etc of the film) “Jai Santhoshi maa” restraining them from exhibiting the cinema picture “Jai
Santhoshi maa”.

W
The plaintiff stated that the persons having interest in religion and mythology will be attracted by the
picture and when the same is seen by them it will hurt the feeling as goddess saraswathi, laxmi and paravathi
LA
are depicted jealous.

Orders: The Gujarat high court dismissed the appeal and held that the defendants were not liable .
because the defendant have clarified at the very commencement of the film that the entire film is imaginary
OF

and hence film is not a annoyance and the hurt to religious feelings is not recognized as a civil actionable
wrong.
GE

Kinds of Nuisance: There are 2 kinds

1. Pubic Nuisance
E

2. Private Nuisance
LL

1. Pubic Nuisance:-
A public or common Nuisance is one which materially affects the reasonable comfort and
CO

convenience of public in general or a class of people.

Public nuisance includes like carrying on an offensive trade , selling food unfit for consumption,
obstructing public highways and throwing fire works about in the street.
N

Public Nuisance is interference with the members of the public in the exercise of their common
EE

rights on the highways.

M

A public Nuisance is a crime

Sec 268 of IPC: defines public nuisance as an act of illegal omission which causes any common injury,
-A

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
AL

use any public right.

Case Law

Ramdas and sons V/s Bhuwaneshwar Prasad Singh [AIR 1973 pat 294]
Facts of the case

In this case the defendants were the registered partnership firm had taken a contract for laying a
pipeline and for that purpose they had dug out trenches by the side of the road in front of a government

E
hospital.

OR
The trench was left open and it was neither fenced nor any light was placed by the side of the trench
as a security measure.

L
The plaintiff was going to the hospital at about 8.00.P.M . and he fell into the trench and received

GA
injuries.

He filed a suit against the defendants and the court held that defendant were held liable.

AN
2. PRIVATE NUISANCE:-

It may be defined as unlawful interference with a person‟s use or enjoyment of land, or of some right

,B
over or in connection with it.

Elements of private Nuisance.

W
The essence of private nuisance is that it is an unlawful interference and or annoyance which causes
LA
damage to an occupier or land in respect of his enjoyment of the land.

The elements are,

OF

1.unreasonable or unlawful interference

2.Such interference is with the use or enjoyment of land or some right over, or in connection with the
land and
GE

3. damage
E

Private Nuisance may be with respect to property or personal Physical comfort

LL

1. Damage to property
2. Physical Discomfort
CO

In case of physical comfort the act complained of must be

 In excess of the natural and ordinary course of enjoyment of the property, that is to say
interference must be with the enjoyment or use of land
N

 Materially interfering with the ordinary comfort of human existence.

EE

Conclusion
M

It can be concluded that nuisance, whether public or private both are a wrongful act making another
person inconvenience in enjoyment of the property. The aggrieved party has remedies to control the
-A

nuisance.

Q.No.9
AL

Solve the Following Problems.

 a) An MLA of Karnataka was wrongfully detained by the police while he was going
to attend the Assembly session. He was not produced before the Magistrate
within requisite period. Which legal right is violated? Advice him.

E
Ans. The above mention problem is identical to a leading case law which is has follows.

OR
case law

1. Bhim Singh v/s State of Jammu and Kashmir. [AIR 1986 Sc. 494]

L
GA
FACTS OF THE CASE

In this case the petitioner was an MLA of Jammu and Kashmir Assembly was wrongfully detained
by the police while he was going to attend the Assembly session. He was not produced before the magistrate

AN
within the requisite period.

,B
As the consequence of this the member was deprived of his constitutional right to attend the
Assembly session. There was also violation of fundamental right to personal liberty guaranteed under Art
21 of the constitution.

W
Orders: In this case Hon‟ble Supreme ordered to pay exemplary damages of Rs.50,000/- to the petitioner
LA
In the above problem the legal right of an MLA of Karnataka was violated under Art 21 of
the Constitution in depriving him to attend the Assembly session hence in this case the maxim
“Injuria Sine Damno” is to be applied.
OF

a. INJURIA SINE DAMNO: it means,

GE

„Injuria‟ means infringement of a legally protected interest (ie right) of the plaintiff.

„Sine‟ means without

E

„damno” means actual physical loss whether in terms of money, comfort, health, service or the like.
LL

So, Injuria Sine damno means that if a private right is infringed, the plaintiff will have a cause of
action even if the actual physical damage is not there.
CO

It means that if a private right is infringed the plaintiff will have a cause of action even though the
plaintiff has not suffered any actual loss or damage.
N

Thus, according to this maxim what is necessary is the infringement of a legal right and not the proof
EE

of actual loss or damage.

b) A cat strayed from its owner‟s land into the land of a neighbour and killed birds
M

kept there. Is the owner of the cat liable?

Ans: “No” In this case the owner is not held liable for making the defendant in respect of the damage done
-A

by an animal belonging to the class of the harmless or domestic animals.

In one of the similar case Buckle v. Holmes in this case the court held that the owner is not liable.
AL

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