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Law of torts notes (part 2)

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Specific Restitution of Property for Tort Claims

Meaning of the term Restitution

Restitution means the return of objects that were lost or stolen or a payment made for a loss or damage. Restitution can either be a legal remedy or it can be an equitable remedy. This depends on the claim made by the plaintiff and the nature of the sought remedies. Restitution generally is an equitable remedy when the property or the money which is wrongfully in the possession of the defendants can be traced In such cases restitution is in the form of a constructive trust or equitable lien.

Law of Restitution

The law of restitution is the regulation of profits-based recovery or restoration. It has to be in contrast with the law of compensation, which is the law of loss-primarily based recovery. When a court orders-

Restitution- it orders the defendant to surrender the profits or gain to the claimant.

Repayment- it orders the defendant to pay the claimant for his or her loss.

Restitution according to American Jurisprudence

In the 2nd edition notes the term restitution was used to denote the restoration of or the return of a thing or condition in the earlier common law. In modern legal usage, the meaning of the term is extended to returning something back to its rightful owner, returning to the status quo, reimbursement, compensation, indemnification, reparation for the benefits derived from or the loss for injury caused to another person.

Thus the word implies the relinquishment of a profit or benefit or the return of money or property that has been obtained through an improper means to the person by whom the property has been taken.

Specific Restitution of Property

The third kind of judicial remedy is the specific restitution of property. It is granted where the plaintiff has been wrongly dispossessed of his lands and goods. Thus, a person who is wrongfully dispossessed of immovable property, or of some specific movable property, is entitled to recover such property. When one is wrongfully dispossessed of his movable or immovable assets, the court may order that the specific belongings must be restored back to the plaintiff.

Illustration: Action for ejectment, the recovery of chattels with the aid of an action for detinue etc. According to section 6 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed of immovable assets is entitled to get better the immovable assets. According to section 7 of the Specific Relief Act, 1963 someone who is wrongfully dispossessed of movable assets is entitled to recover the movable property.

Restitutionary Remedies: These are also meant to restore the plaintiff to a position of “wholeness”, as close as possible to their state before the tort occurred. These can include:

Restitutionary damages: These are similar to damages, except that they are calculated based on the tortfeasor’s gain rather than the plaintiff’s losses.

Replevin: Replevin allows the victim to recover personal property that they may have lost due to the tort. For example, they may recover property that was stolen. Replevin can be coupled with legal damages in some cases.

Ejectment: This is where the court ejects a person who is wrongfully staying on real property owned by the plaintiff. This is common in instances of continuing trespass.

Property Lien: If the defendant cannot afford to pay damages, a judge may place a lien on their real property, sell the property, and forward the proceeds to the tort victim.

Restitutionary Remedies

These are also intended to repair the plaintiff to a position of “wholeness”, as closely as possible to their state before the tort befell. These include-

Restitutionary damages: These are similar to damages, besides that they may be calculated based at the tortfeasor’s advantage in preference to the plaintiff’s losses.

Replevin: Replevin lets in the sufferer to recover private belongings that they will have misplaced due to the tort.

Example- a person may recover assets that were stolen. Replevin may be coupled with legal damages in a few instances.

Ejectment: This is in which the court ejects someone who is wrongfully staying on actual belongings owned with the aid of the plaintiff. This is common in times of continuing trespass.

Property Lien: If the defendant can’t find the money for to pay damages, a judge may place a lien on their actual assets, sell the belongings, and ahead of the proceeds to the tort sufferer.

Forms of action in English Law

Under the English law, there are three different classes of action:

Real

Personal

Mixed

In real actions, the plaintiff claims his right to recover lands, tenements and hereditaments. In personal actions, the plaintiff claims a debt, or sought to recover a chattel, or claimed damages for injury done to his person or property. Mixed actions partake of the nature of both.

The most common personal actions are- debt, covenant, assumpsit, trespass the case, detinue, replevin and trover.

Detinue is the form of action for the recovery of specific goods wrongfully detained, or their value, and also damages occasioned by their detention.

Replevin is the action to recover specific goods which have either been wrongfully distrained from the plaintiff or had been wrongfully taken out of his possession.

An action of trover was originally the remedy to recover damages against the person who had found goods and refused to deliver them up on demand to the plaintiff. In course of time, it became the form of action where the plaintiff sought to recover damages from the defendant who had converted the plaintiff’s good to his own use and came to be known as an action of conversion.

Types of Disgorgement Legal Remedies

Restitution is a legal remedy where a particular property at issue cannot be particularly identified. Example- The plaintiff is seeking a judgment imposing personal liability to pay a sum of money.

Identified types of disgorgement legal remedies are-

Unjust enrichment

Quantum meruit

These kinds of damages restore benefits conferred to the non-breaching party and the plaintiff receives the value of whatever that was conferred to the defendant when there existed a contract. The two general limits to recovery are:

(i)- The contract needs to be completely breached.

(ii)- If restitution damage exceeds then damages will be capped at the contract price.

Restitution for Wrongs

Illustration- If A commits a wrong against another person B and the latter sues A for the wrong, then A will be liable to compensate B for the loss. If B demands compensation then the court would measure the loss due to A’s action by reference and compensation would be awarded. But, in certain situations, B may seek restitution over compensation. If the profit made by A’s wrongful action is greater than the loss suffered by B then restitution would be in B’s interest.

Whether a claimant can or cannot seek restitution for a wrong depends on the particular wrong in question to a large extent. Example- Restitution for breach of fiduciary duty in English law is widely available but restitution for breach of contract is comparatively exceptional. The wrong could be of any one of the following types:

Criminal offences

Breach of contract

Statutory tort

Common law tort

Equitable wrong

The law responds to each and everyone of them by implementing an obligation to pay compensatory damages. Restitution for wrongs is the issue which deals with the problem of when precisely the law responds through enforcing a responsibility to make restitution.

Example

In Attorney General v Blake, an English court was facing the claim in which the defendant had made a profit someplace in the location of £60,000 as a result of breach of contract with the claimant. The claimant was entitled to claim compensatory damages, however he had suffered very little loss. It was consequently decided to seek restitution for the breach of agreement. The claimant won the case and the defendant had to pay his profits to the claimant. However, the court made a point that the ordinary legal response of a breached contract is awarding compensation. An order to make restitution was said to be available only in exceptional circumstances.

Difference Between Restitution and Civil Damages

Restitution

Civil Damages

It is ordered after the offender has been found guilty by the criminal court.

It is ordered after the winning of a lawsuit in a civil court.

Victims cannot collect twice for the same loss.

Damages imposed just to punish the defendant can be claimed.

Example- payment for pain and suffering, punitive damages.

Even when the offender has been ordered to pay, a victim can sue an offender restitution.

Civil damages can include losses not covered by restitution.

Difference Between Restitution and Compensation

Restitution

Compensation

Restitution is court-ordered payment from a convicted offender.

It is a state government program that pays many of the out-of-pocket expenses of victims

It can only be ordered in cases where someone has been convicted.

The victim is required to report the offense within a certain amount of time to be eligible for compensation.

It can be ordered for a wider variety of losses, including property loss.

It covers medical expenses, most cover counseling, and very few cover any property loss.

Courts may order full or partial restitution

When courts order restitution, they look no longer only at the sufferer’s losses but additionally at the culprit’s capability to pay. In some states, the court can also reduce the whole amount of restitution ordered if the offender is not likely on the way to pay that quantity. In different states, courts will order the culprit to pay for the overall amount of the loss, however then set a price agenda based totally at the offender’s finances, which may also only be a minimal amount in per month.

Collecting Restitution

Collection of restitution is regularly restrained with the wrongdoer’s capability to pay. As a result, many victims wait years before they acquire any restitution, and they will by no means acquire the full amount of restitution ordered. Collection additionally relies upon on enforcement of the courtroom’s order of restitution, either by the criminal justice system or the victim. There are many laws and methods used to make certain the wrongdoer pays as ordered.

For instance, in which payment of restitution is made a circumstance of probation or parole, the probation or parole officer ought to display whether bills are being made on time. The sufferer might also assist to provide this data to the probation or parole officer. If the culprit is set to be released from probation or parole, however has now not paid restitution as ordered, this has to be conveyed to the court or parole board. Victims who have now not received restitution as ordered need to ask the probation or parole officer how this information can be furnished to the court or parole board. In some states, probation or parole can be prolonged when the offender has willfully failed to pay restitution.

In those states with prison work programs, restitution payments are generally collected out of the wages of these programs. Some states collect restitution from state profits tax refunds, prisoner money accounts, lottery winnings, or damage awards from proceedings towards the jail.

Where the perpetrator has not paid restitution as ordered-has “defaulted” in charge-restitution frequently can be collected by using the identical methods used to put into effect other court judgments, consisting of attachments of belongings or garnishment of wages. In some states, the sufferer is authorized to take these moves; in different states, enforcement is as much as the prosecutor, the court, or another official.

Many states provide that restitution orders become civil judgments. This expands the potential of sufferers to collect restitution and also manner the orders can live in impact for many years, usually ten to twenty years. In many jurisdictions, civil judgments may be renewed, with a view to stay in impact even longer. During that point, the wrongdoer’s financial circumstances may additionally change: he or she may also have inherited belongings, won a prison judgment, or grow to be hired. Depending on the state, the civil judgment can be enforceable without delay, or enforceable while the culprit defaults on payment, or enforceable after the criminal justice method is completed and the wrongdoer has been released from probation, prison, or parole. A victim may need to hire a legal professional attorney to help enforce the civil judgment.

The Tort of Nuisance

Introduction

A person in possession of a property is entitled to its undisturbed enjoyment as per law. However, if someone else’s improper use or enjoyment in his property ends up resulting into an unlawful interference with his enjoyment or use of that property or of some of the rights over it, or in connection with it, we can say that the tort of nuisance has occurred.

The word “nuisance” has been derived from the Old French word “nuire” which means “to cause harm, or to hurt, or to annoy”. The Latin word for nuisance is “nocere” which means “to cause harm”.

Nuisance is an injury to the right of a person’s possession of his property to undisturbed enjoyment of it and results from an improper usage by another individual.

Definitions by Various thinkers

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of another, or of the lands, one which doesn’t amount to trespass.

According to Salmond, nuisance consists in causing or allowing to cause without lawful justification, the escape of any deleterious thing from one’s land or from anywhere into land in possession of the plaintiff, such as water, smoke, gas, heat, electricity, etc.

Essential elements of Nuisance

Wrongful act

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

Damage or loss or annoyance caused to another individual.

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

Kinds of Nuisance

1. Public Nuisance

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

Public nuisance affects the society and the people living in it at large, or some considerable portion of the society and it affects the rights which the members of the society might enjoy over the property. The acts which seriously affects or interferes with the health, safety or comfort of the general public is a public nuisance.

Instances where an individual may have a private right of action in respect to a public nuisance:

He must show the existence of any personal injury which is of a higher degree than the rest of the public.

Such an injury has to be direct and not just a consequential injury.

The injury must be shown to have a huge effect.

2. Private Nuisance

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

Elements which constitute a private nuisance

The interference must be unreasonable or unlawful. It is meant that the act should not be justifiable in the eyes of the law and should be by an act which no reasonable man would do.

Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be in connection with the property or physical discomfort.

There should be seeable damage to the property or with the enjoyment of the property in order to constitute a private nuisance.

Case Law: Rose v. Miles(1815) 4M &S. 101

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

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

1. Property

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

2. Physical discomfort

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

In excess of the natural and ordinary course of enjoyment of the property.

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

Interfering with the ordinary conduct of human existence.

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

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

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

What are the defences available to Nuisance?

There are many valid defences available to an action for tort, these are:

1. Prescription

A prescription is a title acquired by use and time and which is allowed by the law, a person claims any property because his ancestors have had the possession of the property by law.

Prescription is a special kind of defence, as, if a nuisance has been peacefully and openly been going on without any kind of interruption then the defence of prescription is available to the party. On the expiration of this term of twenty years, the nuisance becomes legalised as if it had been authorised in its commencement by a grant from the owner of the land.

The essence of prescription is explained in Section 26 of the limitations act and Section 15 of the Easements Act.

There are three essentials to establish a person’s right by prescription, these are

Use or enjoyment of the property: The use or enjoyment of the property must be acquired by the individual by law and the use or enjoyment must be done openly and peacefully.

Identity of the thing/property enjoyed: The individual should be aware of the identity of thing or property which he or she is peacefully or publically enjoying.

It should be unfavourable to the rights of another individual: The use or enjoyment of the thing or property should be of such a nature that it should be affecting the rights of another individual thus causing a nuisance and even after knowing of such a nuisance being caused there must’ve been no action taken against the person causing it for at least twenty years.

2. Statutory authority

When a statute authorises the doing of a particular act or the use of land in a way, all the remedies whether by action or indictment or charge, are taken away. Provided that every necessary reasonable precaution has been taken.

The statutory authority may be either absolute or conditional.

When there is an absolute authority, the statue allows the act and it is not necessary that the act must cause a nuisance or any other form of injury.

Whereas in the case where there is a conditional authority, the state allows the act to be done only if it can be done without any causation of nuisance or any other form of injury.

What are the remedies for nuisance?

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

1. Injunction

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

2. Damages

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

3. Abatement

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

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

Example: Ace and Beck are neighbours, Beck has a poisonous tree on his land which overtime outgrows and reaches the land of Ace. Now Ace has every right to cut that part of the tree which is affect his enjoyment of his land with prior notice to Beck. But if Ace goes to Beck, land without his permission, and chops off the entire tree which then falls on the land of Beck, then Ace shall be in the wrong here as his action taken would be beyond reasonableness.

Nuisance and Trespass – Distinguished

Trespass, on one hand, is the direct physical interference with the plaintiff’s possession of the property through some material or tangible object whereas, in the case of a nuisance, it is an injury to some right of the possession of the property but not the possession itself.

Trespass is actionable per se (actions which do not require allegations or proof), whereas, in the case of a nuisance, only the proof of actual damage to the property is required.

Example: Simply entering on another individual’s property without the owner’s consent and without causing him any injury would be trespass whereas if there is an injury to the property of another or any interference with his enjoyment of the property, then it will amount to a nuisance.

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

Example: Planting a tree on someone else’s land would amount to trespass whereas if a person plants a tree on their own land which then outgrows to the land of another would amount to a nuisance.

Case Law: Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandal AIR 1978 Guj 13, (1977) GLR 424.

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

Conclusion

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

Trespass to Land and Dispossession

Meaning of Trespass

Black’s Law Dictionary defines trespassing as an unlawful act committed against the person or property of another person; in particular, unlawful entry into the real property of another person. Trespass means the wrongful disturbance of possession of land or goods of another person. A person who intentionally and without consent enters another person’s property is a trespasser. It signifies an infringement or infringement of a right.

Examples:

Continuing Trespass

Criminal Trespass

Innocent Trespass

Joint Trespass

Camden, LCJ said that “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing.”

Kinds of Trespass

There are two kinds of trespass:

Trespass quare olasum fregit– this means the entry on another person’s land.

Trespass de bonis asportatis– this means the taking away of another person’s goods.

Trespass to Land

Trespass to land stems from the dictum “cuius est solum, eius est usque, and coelum et ad infernos”– meaning that anyone who owns the land owns it all the way up to heaven and down to hell.

Land is far more than merely the physical soil. Land ownership has been granted the rights to all natural resources on the land. Land includes any buildings and fixtures attached to the ground like houses, walls, standing crops, the ground itself, the airspace above and the ground below to a reasonable height or depth in relation to the normal use of the land.

In the case of trespass to land, the unlawful land infringement must be direct, intentional and actionable in itself. The entry must be intentional in the sense that the trespasser intended to go onto that particular land. The trespasser’s intention to trespass is not at all necessary. Illustration: A parachutist’s entry into the land accidentally blown by the wind is unintentional and there is no liability for trespass.

How is Trespass to Land committed?

Trespass to land may be committed in three situations. In each case, the entry must be without justification. The cases are:

Entering the land of the plaintiff:

In order to constitute a trespass, entry is essential.

Entry must be without permission.

The land must be in possession of the plaintiff, it may be actual or constructive.

Entry must be voluntary which means not against a person’s will or by force.

Entry must be intentional.

If the defendant consciously enters a land that he believes is his own but that turns out to be the plaintiff’s land, he is still liable for trespass. It is irrelevant that the defendant made a reasonable mistake and was not negligent.

Basely v. Clarkson [1]

When the defendant mowed his own land, he mistakenly crossed the boundary and mowed the land of his neighbor, believing it was his own land. The defendant’s plea of mistake in claiming trespass to land failed because his act of cutting grass was intentional even though he made a mistake as to where the boundary was. However, if the entry is proven to be involuntary then it is not a trespass.

Smith v. Stone [2]

If someone else throws a person on the land of someone else, i.e. his entry is unintentional then he will not be liable. There is no act of entry by the defendant in such a situation. It is a general presumption that a person who owns the surface of land owns all the underlying strata. Thus at the instance of the owner of the surface, an entry beneath the surface at whatever depth is an actionable trespass. But in some cases, it is possible that the underlying strata may be in the possession of a different person.

Illustration: When a person who is not in possession of the surface holds mining rights: if the surface of the land is in possession of A and the subsoil in possession of B, the surface entry will be an infringement of A and the subsoil entry will be an infringement of B.

Note- Entering a land prior to the complete transfer of its title to the acquirer shall be considered a trespass.

Public streets, including pavements, are primarily dedicated to public use for passage purposes and may not be used for private residence, private business or as a prayer ground for a particular community.

By staying on land having asked to leave or after any permission has come to an end:

If there remains a person who has legally entered another’s land, he commits trespass after his right of entry has ceased. His misconduct relates back to making his original entry tortuous, and he is liable for damages, not just for the entry itself, but for all subsequent acts. This is referred to as trespass ab initio and the abuse will make the original entry illegal.

Gokak Patel Volkart Ltd. V. Dundayya Gurushiddaiah Hiremath [3]

Although entry into the property may be legal, therefore, if possession continues even after permission has been given, it may amount to trespass ab initio. The corresponding concept of continuity of a civil mistake can be found in the Tort Law. Trespass in torts can be continued one. Again, if the entry was legal but is subsequently abused and continued after the permission has been determined, the infringement may be ab initio.

Minister of Health v. Bellotti [4]

A licensee whose license has been terminated or is extinguished by expiry may be sued as a trespasser if, upon request, he does not vacate and a reasonable time has elapsed.

Trespass by interference with the land of another :

Any interference with another’s land is considered to be a constructive entry and trespass. Example- throwing stones or materials over neighboring land, it may also be a gas or invisible fumes. Driving a nail into a personʼs wall, placing anything against the plaintiffʼs wall, planting trees in plaintiffs land, or placing any chattel upon the plaintiffs land is trespass by interference on the land of another person. It was said in Abdul Gani v. Sadu Ram and Others [5] that discharge of filthy water from a spout in the defendant’s house on the plaintiff’s land is trespass.

Difference Between Trespass and Nuisance

Trespass

Nuisance

By the nature of injury, if the injury is direct then it is Trespass. If the injury is consequential, then it is Nuisance. Trespass is actionable per se. Nuisance is actionable only on proof of damage. Trespass describes prohibited conduct. Nuisance describes a type of harm that is suffered. Trespass requires direct entry into the property of the plaintiff. Nuisance is indirect and can take place from outside the property of the plaintiff. A person only in the direct possession (including tenant) of land can sue. A person who is indirectly affected may sue. Illustration: Throwing stones on the neighbor’s land. Illustration: If the roots of a tree planted on the defendant’s land undermine the foundation of neighbor ‟s building then it is nuisance.

Aerial Trespass

The landowner has the right to the airspace above the surface ad infinitum. The ordinary rule is that whoever has the solum, whoever has the site, is the owner of all up to the sky and down to the earth’s center. In modern times, the owner has the right to air and space above his land is limited to the height required for the ordinary use and enjoyment of his land.

Kelsen v. Imperial Tobacco Co. Ltd. [6]

An advertising sign erected by the defendants over the plaintiff’s single storey shop projected into the airspace. The defendant argued that a superincumbent airspace invasion was not trespass, but a nuisance alone. The projection into the airspace of the plaintiff was held to be a trespass and not a mere nuisance, and a mandatory injunction was granted.

Bernstein v. Skyviews [7]

When Bernstein sued the defendants in trespass for taking aerial photographs from hundreds of meters above the ground of his house, the issue of trespass into the airspace above the ground was in question.

The Court held that at that height Bernstein had no reasonable use of airspace and the defendant was not liable for trespass on that ground.

Indian Law of Aerial Trespass

Section 17 provides that no suit shall be brought in respect of trespass or nuisance, solely because of the aircraft’s flight over any property at a height above ground that is reasonable in view of wind, weather and all the circumstances of the case, or solely because of the ordinary incidents of such flight.

The law provides that anyone who flies to cause damage to a person or property may be punished with six months’ of imprisonment or a fine of Rs 1,000 or both.

Continuing Trespass

Every Continuance of Trespass is a fresh infringement and an action can be brought against it. The continuation of day-to-day trespass is considered a separate trespass on each day in law. Illustration: An action can be taken for the original trespass of placing some material on someone else’s land and another action to continue the deposited things.

Note: A recovery of damages in the first action, by way of satisfaction, does not operate as a purchase of the right to continue the injury.

Trespass by Animals

Cattle trespass was ancient common law torture whereby the animal keeper was strictly liable for any damage caused by the straying animal. Livestock keepers are responsible as if they have committed the trespass on their own. Cattle trespass liability is strict which means independent of negligence. In India, there is the Cattle Trespass Act of 1871.

Criminal Trespass

Entry into or into another’s property in criminal law is not an offense per se. Either with the intention of committing an offense or intimidating, insulting or annoying the person in possession of the property in order to commit a criminal offense.

Illustration: A has an orchard; B enters the orchard for a pleasure trip without harm; he may be held liable for civil infringement. But if B goes into stealing fruits, he will be guilty of a criminal offense.

Remedies

The person whose land is infringed may bring an action for trespass against the wrongdoer. He may also forcefully defend his possession against a trespasser; he may forcefully eject him. Note: actions include, as the case may be, claims for damages or injunctions.

Damages

A claim for damages in order to recover any financial loss suffered as a result of an infringement may be made or, alternatively, a nominal sum may be awarded if no damage is suffered.

Injunction

In some cases of land trespass, the claimant may not want financial compensation at all, but will instead seek an injunction, a court order to prevent a continuing or future infringement, or perhaps a statement of unlawful infringement. Example: Asking someone to remove his tree.

Proving possession at the time of trespass is important when initiating action, either actual or constructive. Possession means having something at your own disposal or the right to use it exclusively. It is protected in its own right. According to Salmond- “the possession of a material object is the continuing exercise of a claim to the exclusive use of it.” It has two elements that are mental and physical. The mental element is called as ‘animus’ and the physical element is known as ‘corpus’.

Animus denotes the possessor’s intention regarding things and corpus consists of the external facts in which this intention realized, embodied or fulfilled itself. A thing’s physical possession does not give possession right who holds it.

Example: A has gone to a car showroom and is examining the vehicle’s different features and taking the test drive. The car is in his custody while driving the car, but not in his possession. But he’s in full possession of it if he runs away with the car. Here, he has both the animus and possession necessary, and he can exclude others except the car shop owner. The wrongful possession is therefore protected by law against all but the wrongful possession.

Possession

(i)- Possession in fact (de facto possession) like servant’s possession.

(ii) Possession in law (de jure possession) like master’s possession.

The servant’s intention here is to exclude others on behalf of his master and he can maintain a trespass action against those who interfere with property or article possession. While the intention of a master is to exclude others from interfering with the thing and he is doing so on his own behalf.

There is a difference between ‘possession right’ and ‘possession right.’ If X is a landlord who subordinates his premises to Y for 11 months, it means X is entitled to possession after 11 months ‘ expiry and the tenant is entitled to possession during this period. A person who has the right of possession has the right to sue for infringement and not the right of possession.

Defenses

The following defenses are available as a defense for trespass-

Exercise of easement and prescription

Leave and License

Acts of Necessity

Self-Defense

Authority of Law

Re-entry on land

Re-taking of goods and chattel

Abating a nuisance

Dispossession

Dispossession is wrongfully taking possession of land from its rightful owner. Thus, the landowner was completely deprived of his dominion by the person’s act.

Prerequisite

The plaintiff/owner must have possession.

The plaintiff should have a better title as compared to the defendant.

Remedy

The party dispossessed can bring an action to recover possession of the land.

Defenses

Defenses against suits pursuant to Section 5 of the Specific Relief Act, 1963 are mainly two-fold-

1- That the defendant has a better title than the plaintiff;

2- Prescription.

Note–

The landlord does not need to prove his title, but just end the tenancy.

The licensee can not dispute the title of the persons who licensed them.

There is a conflict of opinion between high Courts whether the complainant in the suit for possession of the immovable property is entitled to succeed merely by proving that they had previous possession or whether he is bound to prove title.

Distress Damage Feasant – Animal Rights and Tort Law

Introduction

An animal’s keeper is strictly liable, irrespective of negligence for damage done by the animal belonging to the dangerous species, or if he knew the vicious character of the animal belonging to the non-dangerous species. Animals falling in the first category are lions, bears, elephants, wolves, ape, etc. whereas animals falling in the second category are dogs, horses, cows, rams, cats, etc.

A person who keeps an animal with knowledge of its tendency to do harm is strictly liable for damage that it does if it escapes; he is under an absolute duty to confine or control it so that it shall not do injury to others. All animals ferae naturae, that is, all animals that are not harmless by nature, or have not been man-made and domesticated, are definitely presumed to have such a tendency so that the scienter does not need to be proved in them. All second-category animals, mansuetae naturae, are presumed to be harmless until they have manifested a savage or vicious propensity; proof of such a manifestation is scientific proof and serves to transfer the animal, so to speak, from the natural class to the class ferae naturae.

The circus owners, even without negligence were held liable when their Burmese elephant frightened by the barking of a small dog. The elephant ran after the dog and knocked the plaintiff who was inside the booth. In May v Burdett[1], the defendant was held liable for keeping a monkey which bit the plaintiff, on the ground that the monkey is a dangerous animal. In Hudson v. Roberts[2], where the defendant had the knowledge that the bull is always irritated by the colour red, was held liable when the bull attacked the plaintiff who was wearing a red handkerchief and was walking on the highway. In Read v. Edwards[3], the defendant having knowledge of peculiar propensities of his dog in chasing and destroying the pheasants was held liable to the plaintiff when the dog chased and destroyed his pheasants.

The conclusion boils down to the fact that there is no difficulty if the animal belongs to the category of ‘ferae naturae’. The keeper shall be liable strictly for the damage done by it even though he is not at fault. But the difficulty arises in those cases where the animal belongs to the category of ‘mansuetae naturae’. In such cases, if the animal has some dangerous propensities, it will be transferred in the category of ‘ferae naturae’. Here the keeper will be liable strictly, independently of negligence, if the plaintiff proves scienter i.e. the defendant had the knowledge of the dangerous propensities of such animal.

Cattle Trespass

Scienter Rule

In the event of a cattle trespass and consequent natural damage, or any other damage due to particular vicious propensities of the cattle, the liability is strict and the owner of the cattle will be liable even if he did not know of any other particular propensities in that animal. There is no need to prove the defendant’s negligence as the liability is strict, i.e. without fault. It can be noted that cattle includes cows, asses, pigs, horses, bulls, sheep, and poultry. But dogs and cats are not included in the term cattle because of their tendency, and therefore cats and dogs cannot trespass. Thus, in Buckle v. Holmes[4], the defendant’s cat strayed into the plaintiff’s house where it killed thirteen pigeons. The defendants were not held liable for trespass. He was not liable for killing the pigeons because there was nothing peculiar to this cat alone. The liability under the scienter rule arises only when the defendant had knowledge. For example, a cat is prone to injure mankind. In such a case, knowledge of the defendant that a cat was prone to injure mankind must be established by the plaintiff and, for this, a single instance of the ferocity of such animal is sufficient notice. Thus in Read v. Edwards, the owner of a dog was held liable for his dog’s act of trespassing, chasing and killing certain pheasants which belonged to the plaintiff on the ground then the defendant had knowledge of the particular propensity of his dog.

But where there is trespass by cattle the liability is strict. Scienter or negligence of the owner is not required to be proved. In Ellis v. Loftu Iron Co.[5], the defendant’s horse obtruded its head and feet over the plaintiff’s fence and bit and kicked the plaintiff’s mare. The defendant was held liable for cattle trespass because the liability is strict, and the plaintiff was not required to prove scienter or negligence of the defendant.

It may be noted that the defendant will be liable for the natural consequence of cattle trespass. In Theyer v. Purnell, the defendant’s sheep, infected with scab, trespassed on to the plaintiff’s land and conveyed the same to the plaintiff’s sheep. All these sheep were interned under a government order and the plaintiff was put to a considerable expense. The defendant was held liable for cattle trespass and its irrespective of his knowledge as to the infected condition of the sheep. Similarly, in Wormald v. Cole, the plaintiff was knocked down and injured by the trespassing heifer belonging to the defendant. It was held by the court that the personal injuries to the plaintiff were the direct result of the trespass and the defendant was held liable for the same.

Animal Act, 1971

In England, the Animal Act of 1971 has modified the common law by dividing the animals into two groups ‘dangerous’ and ‘non-dangerous’ which more or less follows the distinction between ‘ferae naturae’ and ‘mansuetae naturae’. Section 6(2) of the Animal Act defines a dangerous animal as “not commonly domesticated” and when fully grown can cause severe damage. When damage is caused by a dangerous animal, its keeper is strictly liable. But when damage is caused by a non-dangerous animal, Section 2(2) of the Act requires the plaintiff to prove that the defendant has the knowledge of certain abnormal characteristics for holding the defendant liable.

In England, the common law rule of Cattle trespass has been replaced by the Animal Act, 1971. Section 4(1) of the Act, provides that where livestock belonging to some person strays on to the land or property of another and causes damage to land or property on it which is the ownership or possession of another and/ or that person incurs expenses in keeping the livestock while it cannot be restored to the person to whom it belongs, the owner of the livestock is liable for the damage and expenses except as otherwise provided by the Act.

The common law remedy i.e., distress damage feasant is abolished. In its place, Section 7 of the Animals Act provides a right to detain the livestock and to sell it at the end of fourteen days. The ancient right of non-liability of the cattle owner if his cattle trespass to a highway and causes damage has been retained in Section 2 of the Act. Similarly, Section 5 of the Act recognizes the well-established law laid down in Tellet v Ward[6], that the occupier of premises adjoining a highway is presumed to have accepted the risk incidental to the passage of ordinary traffic along that highway.

Cattle Trespass Act, 1871

In India, Cattle Trespass Act, 1871, provides that the trespassing cattle can be taken to the pounds established in various places for keeping such cattle. The owner of the cattle can take them back from the pound keeper after payment of the pound fess. However, he is not bound to pay compensation to the owner of the land. The owner of the pig which strays and does not harm to another’s land is liable to pay fine. According to Cattle Trespass Act, 1871, cattle includes elephants, camels, buffaloes, horses, ponies, mares, geldings, colts, mules, asses, pigs, rams, ewes, sheep, lambs, goats, fillies and birds.

The cultivator or occupier of the land or vendee or mortgagee of the crop may seize any cattle trespassing on such land and doing damage to any crop or produce and send the cattle within 24 hours to the pounds. There are other provisions with regard to delivery and sale of cattle, illegal seizure, detention, payment of penalties, etc. in the Act.

In Manton v. Holmes, it was held that unless there be trespass to land to begin with, the action is inapplicable to damage done by the animal to chattels or to human beings on the land. X owned a field and with his consent, the plaintiff put his horse there. Later the defendant, also with X’s consent, put his mare in the field, but he did not notify the plaintiff of this. The mare kicked the horse which had to be destroyed. The defendant was held not liable for cattle trespass for the mare had not been trespassing.

In the States, there are similar provisions with slight modifications as in the Cattle Trespass Act, 1956; Cattle Trespass Act, 1959; Madhya Pradesh Act 23 of 1958; Tamil Nadu Act, 56 of 1959; Kerala Cattle Trespass Act, 1961; Mysore Cattle Trespass Act, 1966, etc. Cattle damaging public roads, canal, and embankments are also liable to be seized by the police officers or other concerned officers and sent to pounds.

Defenses

There are several defenses and they are:

Act of third party

The act of a stranger is a defense to liability under the rule.

Default of the plaintiff

An obvious example is a plaintiff fails to fence a haystack which he is licensed to put upon the defendant’s land and thereby cause the defendant’s cattle to consume the stack. Failure to fence the property may disentitle the plaintiff. But the plaintiff was under a duty to fence towards a third party and has neglected that duty its neglect will not exculpate the defendant. Therefore, if A has covenanted with his landlord C to keep his fence in repair and fails to do so and in consequence, the cattle of his neighbour B to whom he owes no duty to a fence, stray on to A’s land, A can sue B for cattle trespass.

Volunti non fit injuria i.e., consent

The consent of the party is a defense to liability under the rule of law.

Act of God

This defence has been abolished in England.

Inevitable accident

This may be a defense depending upon circumstances. This is the rule especially after the decision of the case in Stanley v. Powell[7].

Distraint

The animal can be seized and detained until compensation is paid. This has now been abolished in England after passing the Animal Act, 1971,

Tender of amends

The owner of the trespassing cattle may make amends by tendering some amount as compensation.

Distress Damage Feasant

“Distress” means the right to detain and “Damage” means “injury” and “Feasant” means “wrongful act”. If a man unlawfully finds another man’s cattle or chattel on his land causing damages, he is entitled to seize and detain the cattle, which are impounded, to force them to compensate for the damages caused by their owners. This right is called the right to damage caused by distress. Distress is usually taken from straying bovines, but any other cattle that illegally encumbers and damages the land of a man can just as well be taken.

The law has always severely restricted the right to arrest and to be an extrajudicial remedy. It must, therefore, be held on the land of the detainer. He has no right to go after and recapture the thing if the thing escapes.

There is no right to distress when there is no infringement. Therefore, when the cattle are driven along a street, they can not be arrested on their driver’s way to the adjacent undisturbed land until there is a reasonable opportunity to drive them back. It is not lawful to take anything under the personal control of someone else by way of distress damage.

Endnotes

[1846] 9 QB 101

132 A. 404, 104 Conn. 126

[1996] 1 SCR 128

[1926] 2 K.B. 125

[1874] LR 10 CP 10

(1882), 10 Q. B. D. 17)

[1891] 1 QR 86

Joint Tort-Feasors and the Laws in India

Introduction

When two or more persons unite to cause damage to another person, then they will be liable as joint tortfeasors. All those who actively participate in the civil wrong commission are joint tortfeasors. Based on the percentage of damage caused by his negligent act, each joint tortfeasor is responsible for paying a portion of the compensation granted to the complainant. According to the principle of contribution, the defendant who pays more than his share of the damages, or who pay more than he is at fault, may bring an action to recover from the other defendant.

Illustration

The claimant has the right to recover the damages from both the defendants, if X and Y are found to be at fault.

Liability of Independent Tortfeasor

They are severally liable for the same damage due to an independent course of action. In Thompson v. London County Council, it was observed that “the damage is one but the cause of action which led to the damage are two”. Such tortfeasors are, therefore, severally liable for the same damage, not jointly liable for the same tort.

In Koursk case, Koursk and Clan Chisholm collided with one another. As a result, the ship Clan Chisholm collided and sank another ship Itria. The owners of the damaged ship Itria recovered the damages from Clan Chisholm for the loss suffered but were not fully satisfied as the liability of the owners of Clan Chisholm was limited to the lesser amount. Subsequently, owners of Itria filed a suit against the Koursk also. It was held that Koursk and Clan Chisholm were not joint tortfeasors but only independent tortfeasors. The liability of the Independent tort was held to be several and not joint and therefore, there could be as many causes of action as the number of tortfeasors.

Liability of Several Concurrent Tortfeasors

When the same injury is caused to another person by two or more person as a result of their separate tortious acts, this results in several concurrent tortfeasors. Even where successive injuries are caused, the parties remain multiple, concurrent tortfeasors as long as the negligence of each is both a factual and proximate cause of each injury.

Illustration

Several concurrent tortfeasors will occur in a chain collision situation, as described in the case of Rutter v Allen.[1] In this case, the plaintiff stopped his vehicle behind a truck that had come to a sudden stop. The Plaintiff was then struck from behind by a vehicle driven by the defendant X which was struck by a vehicle driven by the defendant Y. The exact sequence of the collisions could not be determined with certainty because they all occurred within a very short time frame. Despite this, it was held that due to both the defendant’s negligence, the damage had been caused to the plaintiff’s vehicle. As a consequence, the accused were several concurrent tortfeasors and were jointly and severally liable for the damage caused by their negligence.

If a complainant suffers multiple accidents, several concurrent tortfeasors may also be the individual tortfeasors from each accident. For example, in a motor vehicle accident in Hutchings v Dow[2], the complainant suffered damage. He was further injured in an assault about 18 months later. It was determined that the complainant suffered from severe and ongoing depression resulting from both the motor vehicle accident and the assault. The court stated that “several tortfeasors whose acts combined to produce the same damage, i.e. depression,” were the defendants from the motor vehicle accident and the assault perpetrator.

Liability of Joint Tortfeasors

When two or more persons join together for common action, then all the persons are jointly and severally liable for any tort committed in the course of such action. There were three principles in English Common Law with regard to the liability of joint tortfeasors.

The first principle is that the liability of wrongdoers is joint and several i.e. each is liable for the whole damage. The injured may sue them jointly or separately.

The second principle was laid down in the case of Brinsmead v Harrison, where it was held that a judgment obtained against one joint wrongdoer released all the others even though it was not satisfied.

The third rule was laid in the case of Merryweather v Nixon, where it was held that in common law, no action for contribution could be sustained by one wrongdoer against another, although one who sought a contribution might have been compelled to pay the full damages. The reason alleged for this rule was that any such claim to the contribution must be based on an implied contract between the tort-feasors and that such a contract was illegally concluded with a view to committing an illegal act.

But the above rules were virtually abolished by the Law reforms Act, 1935 and the Civil Liability Act, 1978. The first rule in Brinsmead case being unjust, was abolished by the Act 1935 and therefore by the Act of 1978 which now provides that judgment recovered against any person liable in respect of any debt or damage should not be bar to an action, or to the continuance of an action, against another person who is jointly liable with him with respect to the debt and damage.

The second rule in Merryweather case is that a tortfeasor who has been held liable cannot recover contribution from other joint tortfeasors, being unjust, has also been abolished by the Act of 1935 which, as per section 6(1), provides that a tortfeasor who has been held liable to pay more than the share of the damages, can claim contribution from the other joint tortfeasors.

The third unjust rule was created by section 6(1)(b) of the Law Reform Act, of 1935 that if successive actions are brought, the amount of damages recoverable shall not, in the aggregate exceed, the amount of damages awarded in the first judgment. This rule, being unjust has now been repealed and replaced by section 4 of the civil liability Act, 1978 which now disallows the only recovery of cost in the subsequent suits, unless the court is of the opinion that there was a reasonable ground for bringing the action.

Laws in India

In India, there is no statutory law on joint tortfeasors’ liability. As stated above, in England the Law Reform Act, 1935 and the Civil Liability Act 1978, have virtually brought the position of joint- tortfeasors on par with the independent tortfeasors. The question therefore arises, should the Indian courts follow the common law on joint tortfeasors which was laid down in Brinsmead and Merryweather cases and was prevailing in England prior to 1935 or the law enacted by the British Parliament in 1935 and 1978? Up to 1942, the courts in India had followed the law as laid down in Brinsmead and Merryweather cases, but in some cases, the courts expressed doubts about its applicability in India.

The Supreme court of India, in Khushro S. Gandhi v. Guzdar[4], refused to follow the common law of England. The fact was that in the suit for damages for defamation, one of the defendants had tendered an apology to the plaintiff and the court had passed a compromise decree between the plaintiff and the defendants who tendered an apology. When the plaintiff wanted to continue the suit against the other defendants, it was contended by the defendants that the compromise decree released all other defendants from their liability. Rejecting the contentions of the defendants, the court held that in the case of joint tortfeasors, in order to release all joint tortfeasors, the plaintiff must receive full satisfaction or which the law must consider as such from a tortfeasor before other joint tortfeasors can rely on accord and satisfaction. The rule which is in consonance with justice, equity and good conscience will convince only that type of liability of tortfeasors as joint and several.

In the light of the above decision, the recent trend of the Indian court is to follow or adopt common law of England or the law enacted by the British Parliament if it is in consonance with the principles of equity, justice and good conscience under the Indian Constitution.

When does the liability of joint tortfeasors arise?

Liability of joint tortfeasors arises in three circumstances and they are:

Agency

When one person is authorized by another person to do work on his behalf then any tort committed by that person, the agent then principal who is authorizing the work will jointly and independently be held liable. When a tort is committed by an agency then both principal and agent are considered as joint tortfeasors. When any partner commits tort during the course of the business, then all other partners are also considered as joint tortfeasors.

Vicarious Liability

When a person is liable for the tort committed by another person under special circumstances, the liability is joint and both are joint-tortfeasors. Thus, when a servant commits a tort in the course of employment, the master can be made liable along with the servant as a joint-tortfeasors.

Joint Action

Where two or more persons join together for common action then all the persons are jointly and severally liable for the tort committed in the course of action.

Tortfeasors Defenses

An individual or entity accused of committing a civil mistake basically has three options for defending their actions. These tortfeasor defenses include:

Consent and Waiver

A tortfeasor (defendant) may defend his position in a civil lawsuit if the accuser (defendant) has been explicitly warned of the risk or danger of engaging in the harmful activity. This defense is referred to as the legal maxim volenti non fit injuries, which means “no injury is done to a consenting person.” This tortfeasor defense usually relies on signed waivers of liability

Comparative Negligence

In comparative negligence, tortfeasors may try to defend themselves by claiming that the complainant contributed to his own damage by committing acts of recklessness or negligence. A similar concept called “contributory negligence” often results in the court assigning a percentage of fault to each party, which ultimately dictates the percentage of financial responsibility for which each party will be held accountable.

Illegality

Where at the time of the injury, the complainant committed an illegal act for which he was seeking compensation, the defendant’s liability may be reduced, or entirely eliminated.

Remedies

The law of contribution says that Y claims to share the liability to X with others was based on the fact that they were subject to a common liability to X, whether equally with Y or not. The words in respect of the same damage emphasized the need for one loss to be allocated among those liable. The amount of the contribution recoverable from any person shall be fair and equitable, taking into account the extent of his responsibility for the damage. The court may exempt any person from the liability to make a contribution or direct that any person’s contribution amounts to full compensation.

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 person to the suit was liable to contribute one-half of the damages.

Criticism of Joint Tortfeasors

Joint and multiple liability doctrine is criticized because it can result in severe inequities. For example, a defendant who has only 10 percent responsibility for an accident that is jointly and severally liable with a defendant who is 90 percent at fault for an accident may have to bear the full amount of damage financial burden, even though his or her mistake was quite minor.

Conclusion

Joint and multiple liabilities is a system that protects the complainants when one or more wrongdoers are unable to pay damages owed to the complainant. However, this can lead to disproportionate and unexpected results for tortfeasors.

Endnotes

2012 BCSC 135

2007 BCCA 148

[1924] P 140

1970 AIR 1468, 1969 SCR (2) 959

Assault as a Tort and Remedies

What is a Tort?

The word tort has been derived from the word “tortum” is a Latin term which means twist. The law of tort consists of wrongful acts whereby the wrongdoers violates some legal rights vested in another person. The law imposes a duty to respect the legal rights vested in the members of society and the person making breach of that duty is said to have done the wrongful act. Violations may be due to intentional acts, breach of duty or violation of law.

The party who has committed a tort is known as tortfeasor. When a tortfeasor incur tort liability, which means that they have to compensate the victim for the harm which has caused by them. In other words, the tortfeasor will have to pay damages if he is found “liable” or found responsible for a person’s injuries.

The law of Tort in India has evolved from the Law of torts in the UK which is most popularly known as “Judge Made Law” and the law of tort does not come from a statute and is uncodified. Despite this, it has existed for many years, although the number of cases of tort have declined. The number of cases of tort or tort litigation is less as compared to the cases of tort filed in Britain and the United States. The Indian law of tort got its shape after the principle of law of tort developed in the UK. Most of the landmark judgements of tort in India is based on the judgements of House of Lords/ courts in England. In India, the tort cases are tried in civil courts and the relief awarded includes damages by way of monetary compensation or an order of injunction or restitution. The law of Tort serves two basic, common objectives:

Compensation to the victim for any harm resulting from a breach of defence.

Discouraging the rescuer from repeating the violation in the future.

Examples of Torts

Some common examples of torts include:

Negligence-related claims.

Civil assault/civil battery.

Wrongful death claims.

Trespassing.

Products liability and dangerous product.

Intentional infliction of emotional distress.

Assault

In common law, assault is a tort, an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. When the defendant creates his act by an apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff, the wrong of assault is completed. The wrong consists of an attempt to do harm rather than the harm being caused thereby. In assault charges must include conduct that is offensive which is offensive or causes another person to the fear of their safety. This clearly means that one can be guilty of assault even if he/she did not physically harm the victim. In the case of R. v. S. George, the pointing of loaded gun to another is an assault. If the pistol is not loaded, then even it may be an assault, if pointed at such a distance that it may cause injury. if a person advances the manner of threatening to use force , then there is assault. This was decided in the case of Stephens v. Myers.

Elements of Assault

If one or more elements have not been satisfied then It can be a defense to an assault charge. Elements of the crime of assault are:

An act or conduct intended to created: To prove a criminal attack, the defendants’ behaviour must be motivated to create a situation of fear or danger in the victim’s mind. Accident acts do not include allegations of assault.

A reasonable apprehension: Further, the victim must reasonably believe that the defendant’s conduct will harm or humiliate him. The victim must understand the defendant’s potentially harmful or offensive acts.

Of imminent harm: The victim’s fear must be a direct response to a threat that is imminent. Future threats, such as “I will beat you tommorrow”, will not result in assault charges. In addition, there must be some kind of perceived physical threat to the victim in the loss; For this reason, words by themselves generally do not constitute an attack.

It is believed that the defendant’s actions would cause physical danger or abusive behaviour to the victim. Thus, the pretence of kicking or punching the victim may be an attack, as will attempt to spit on the victim (aggressive behaviour).

All of the above elements must be present and the evidence must be supported with evidence if found guilty for the attack.

It can be difficult to prove whether the defendant actually intended the attack. Similarly, judges often spend a lot of time determining whether a defendant’s actions are considered harmful or abusive. In determining this, they will consider what an average person may perceive as harmful or aggressive.

Difference between Assault and Battery

Assault

Battery

Definition

Assault is the attempt to commit battery.

Battery includes intentional application of force to another person without any lawful justification.

Important aspect

Threat of violence is enough for assault. No physical contact is necessary.

Physical contact is needed.

Principle

Create reasonable apprehension in the plaintiff’s mind that immediate force will also be used.

· There should be use of force.

· The same should be, without any lawful justification.

Objective

To threaten a person.

To cause harm.

Nature

Not necessarily physical.

Must be physical.

Difference between Criminal and Civil Assault

Civil assault

Criminal assault

Meaning

In civil assault, to sue the respondent for the full extent of his loss, including lost earnings and pain and suffering of the past and future.

If the respondent is convicted, he may be imprisoned, and may also have to pay a fine and reinstatement. But the fine would be paid to the government, and restitution would most likely cover only the medical bills, not your non-economic losses such as pain and suffering stemming from the incident.

Procedure

Punishment

In civil assault case, a District Attorney is not involved. The matter is brought by the plaintiff. The plaintiff has more control in the case of civil assault.

A win for the District Attorney, results in jail term, a fine, or both.

After an attack, the victim should report to the police. The police will then make an arrest, take action on the alleged attacker and refer the case to the District Attorney.

When the plaintiff wins, the defendant will not go to jail, but will have to pay financial compensation.

Legal defenses on charges of Assault

As with other types of criminal charges, there may be some defenses to assault charges. This will depend on each individual case, as well as other factors such as state law. Faults commonly charged with assault charges include:

Self-defense: This could be a defense if the defendant was acting out of self-defense. They should only use the amount or display of force that is appropriate in the situation and in proportion to the force being used against them.

Intoxication: In some cases, intoxication can be a legal defense, especially in cases where intoxication affects a person’s ability to act intentionally.

Coercion: This may be a defense if the defendant was forced to attack under threat of harm (for example, if they are being held at gunpoint and for assault at the behest of someone).

Lack of proof / proof: As stated above, if the elements of proof are not found or supported with the correct evidence, it can serve as a legal defense.

Many other types of avoidance may exist depending on the circumstances.

Cases

Fagan v Commissioner of Police for the Metropolis

Fagan was sitting in his car when he was approached by a police officer who asked him to take the vehicle. Fagan did so, overturned his car and rolled over a police officer’s leg. The officer forcefully asked him to remove the car from his leg, to which Fagan swore him and refused to take the vehicle and shut down the engine. Fagan was convicted of assaulting a police officer in the execution of his duty. Fagan later appealed the decision. The court held that, Although assault is an independent crime and is to be treated as such, for practical purposes today, assault is generally synonymous with battery. On this basis, it was held that Fagan’s crime was not the refusal to move the car but that having driven on to the foot of the officer and decided not to cease the act, he had established a continual act of battery. This meant that actus Reus and mens rea were present and as such, an assault was committed. Fagan’s conviction was upheld.

R. V. Constanza

A man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a period of almost two years, the man followed the women home from work, made numerous silent phone calls, wrote her over 800 letters, drove past her house, visited her house without consent, and wrote offensive words on her house’s door three times. Following these actions, she received two additional letters with threatening language. She was soon diagnosed by a doctor as suffering from clinical depression and anxiety due to apprehended fear caused by the man’s actions and letters. A man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a period of almost two years, the man followed the women home from work, made numerous silent phone calls, wrote her over 800 letters, drove past her house, visited her house without consent, and wrote offensive words on her house’s door three times. Following these actions, she received two additional letters with threatening language. She was soon diagnosed by a doctor as suffering from clinical depression and anxiety due to apprehended fear caused by the man’s actions and letters.

Remedies

Action for damages- Whenever the plaintiff has been wrongfully detained, he can always bring an action to claim damages. Compensation may be claimed not only for injury to the liberty but also for disgrace and humiliation which may be caused thereby. According to McGregor on damages, the details of how the damages worked in false imprisonment are few: generally, it is not a pecuniary loss or of dignity and is left to the jury and their discretion. The principle heads for damage would appear to be the injury to liberty, i.e., the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e., the dignity, mental suffering, disgrace and humiliation with any attendant loss of social status.

Self help– This is the remedy which is available to a person who while he is still under detention instead of waiting for legal action and procuring his release thereby.

Habeas Corpus– It is speedier remedy for procuring the release of a person who is wrongfully detained. Such a writ may be issued either by the Supreme Court under Article 32 or by a High Court under Article 226 of Indian Constitution. By this writ person detaining is required to produce the detained person before the court and justify the detention. If the court finds the detention is without any just or reasonable ground, it will order that the person detained should be immediately released.

It is just possible that the person wrongfully detained may have been set free by the time the writ of habeas corpus is disposed off. The court hearing the petition may grant compensation as ancillary relief in such cases . in the case of Rudal Shah v. State of Bihar and Bhim Singh v State of J&K, the Supreme Court granted such compensation in writs of habeas corpus.

Conclusion

Assault is an attempted offense, the law is intended to prevent possible battery by punishing conduct that comes in a dangerous way to obtain battery. As with most attempted crimes, a clear line cannot be drawn between a criminal attack and conduct that is merely an attack preparation. There should be an intention to cause harm, but it is not enough if it creates the possibility of damage or the danger of battery in a distorted future. Instead, the intent must be taken out of imminent danger, some overt act that endangers the battery. Thus, words or intentions do not constitute mere attack.

Torts Relating to Marital Rights

Introduction

Torts relating to marital rights is one of the aspects of the term loss of consortium. Loss of consortium means torts where a tortfeasor causes deprivation of the benefits of a family relationship. It is to provide compensation to the spouse or the members of the family by the defendant in a case where personal injuries have occurred to another spouse or family member. This right originated in the 18th century when a father was compensated by a man who courted his daughter, due to which instead of doing household services, she was spending time with that man.

Torts relating to marital rights was based on the principle of per quod servitium et consortium amisit which means “in consequence of which he lost her servitude and sex”. It protects the rights of the husband against personal injuries suffered by him, depriving him of company or association with the spouse.

What are the Torts relating to Marital Rights?

Torts relating to marital rights are rights which provide immunity to spouses against the third party for a variety of actions which leads to interference with the marital relationship. Torts relating to marital rights protect the deprivation of sexual relationship and also includes loss that a husband or wife suffers due to deprivation from care, affection, and companionship of the other spouse. These are categorized under the two main categories, which are explained below:

The first category involves torts for alienation of affection. Here, the plaintiff spouse seeks loss from the third party who has injured the other spouse. Though these rights are mainly given to spouses due to sexual conflict, there is no law which specifically states that alienation of affection only includes sexual deprivation.

The second category includes criminal conversation. A criminal conversation happens when one spouse is cheating on the other by engaging in an extramarital affair. These rights are given, as it is considered that in a marital relationship, spouses have ownership rights over the affection and sexual services of the other spouse.

What are the kinds of Torts relating to Marital Rights?

There are three kinds of torts covered under torts relating to marital rights which can be committed by a third party. They are as follows:

Abduction or taking away a man’s wife

Adultery

Causing physical injuries to a man’s wife

Abduction

Under the common law system, a husband has been provided with the right to act against any person who either forcefully or by fraud takes away his wife. A husband has also been given the right to sue if a person entices or persuades his wife to live away from the husband in absence of a sufficient cause. The real point of an action lies in loss of consortium of the wife, giving the husband an exclusive right against the tortfeasor who has invaded to the wife’s aid, affection, and companionship. In all suits, the principle of per quod amisit serves as a basic ground which compensates the husband for losing the benefit of wife’s society i.e. her companionship and all the relations husband has got after marrying her.

The right of the consortium is a mutual right which is equally available to both husband and wife. Either a wife or husband can invoke this right, if one of them is deprived of the benefit of another spouse’s society where society means companionship and all the relations related to a spouse through another spouse. For example, the wife under her right of loss of consortium can sue the defendant for deprivation of the benefit of the husband’s society i.e. his companionship and all the relations related to wife after marrying him.

Adultery

During the medieval period, under the writ of trespass, adultery was maintainable. The action of adultery during the medieval period was known as the action for criminal conversation. After the enactment of Divorce and Matrimonial Causes Act, 1957, the action under the writ of trespass was abolished. Now, a husband has to claim damages for the adultery under the Divorce and Matrimonial Causes Act, 1957. A husband can either make a claim for damages either in a petition for judicial separation or in a petition demanding only claim for damages for adultery. A wife does not enjoy the same right and has not been given the right to bring a suit against the wrongdoer for claiming damages with regard to adultery committed by her husband.

Under the principles of common law, damages inccured criminal conversation were awarded without requiring any proof of alienation of affection in the marital relationship.

Causing Physical injuries to the Wife

Under the common law system, a husband can bring an action against the tortfeasor for any physical injury caused to his wife by the actions of the tortfeasor. If due to maltreatment of the tortfeasor, the husband is deprived of companionship and assistance of his wife for any time period, the husband has the right to get a separate remedy. A wife can also sue a tortfeasor if an injury is caused to her and due to that injury her husband loses the benefit of her society and service which is also known as consortium et servitium. She can either claim damages under a single suit or she can file two different suits for claiming damages.

In case, the wife dies due to the wrongs by the tortfeasor, the husband can claim damages for the death of his wife under the Fatal Accidents Act. The husband is awarded compensation as he loses the services and society of his wife. The only condition that needs to be fulfilled is that the husband and wife should not be living separately from each other while the action of tortfeasor occurred, otherwise no compensation will be awarded.

This right was earlier limited to the husband only but with the passage of time, the Court has recognized similar rights available to the wife under the loss of consortium.

Examples of torts relating to marital rights-

If there is a car accident of a married victim causing injuries or disabilities, his or her spouse can claim damages from the tortfeasor. The other spouse will not only get damages for paying bills of the hospitals but also compensation for the absence of the victim spouse, which has deprived him or her from enjoying the companionship of the victim spouse. If the victim spouse suffers some mental injuries, then his spouse will get compensation for mental injuries too.

Pre-requisites of Torts relating to Marital Rights

The one who suffers an injury is known as the victim spouse and the other claiming damages is the claimant spouse. There are three basic ingredients to be fulfilled by the claimant spouse for getting compensation under the torts relating to marital rights:

There should be liability of the tortfeasor to the victim spouse.

Marriage of husband and wife should not be severed.

There should be proof of damages by the action of the tortfeasor.

Are these rights available to the cohabitants who reside together without having a valid marriage?

Earlier law was very strict and it provided immunity only to legally wedded spouses. In 1977, in the case of Tong v. Joseon, the California Court continued the practice of recognizing the rights of married spouses only and rejected a claim made by the impaired partner who was not married to the victim girl at the date of the injury.

But with change of time, there have been several claims from the cohabitants who though are not legally wedded but are residing together. In 1980, in the case of Bullock v. United States, the Court of New Jersey overruled the old holding and held that a deprived cohabitant should not be restricted from getting damages for a tortious act which cause interference in the ongoing cohabitant relationship.

Liability of Tortfeasor in transfer of Venereal Disease

In cases, where a claimant spouse acquires any venereal disease from the other spouse who has acquired it from the third party, the third party is liable to the claimant spouse. In Mussivand v. David, a wife transferred a venereal disease to her husband which she had acquired from her lover. The Court held that the lover of the wife will be liable to the husband for transmitting the disease to him. The Court specifically stated that the lover would not be held liable if the wife in advance was aware of the disease of the lover.

English Legal System on Torts relating to Marital Rights

Under the English common law, torts relating to marital rights were recognized. In Baker v. Bolton, a husband was awarded damages for his wife’s injuries due to a carriage accident until she did not die. Even after the enactment of Lord Campbell’s Act, the English legal system continued not to recognize the injuries caused by death. In the middle of the 19th Century, Illinois enacted a new act for wrongful death which allowed the next of kin to sue a person for causing the death.

In Parker v. Dzundza, the Court held that there will be no compensation awarded to the spouse if the relationship between husband and wife was already severed by divorce.

Torts relating to Marital Rights in India

In India torts relating to marital rights are covered under the spousal consortium and is majorly invoked in the compensation under the Motor Vehicles Act or in divorce proceedings with respect to adultery.

In Abdul Kadar Ebrahim Sura v. Kashinath Moreshwar Chandani, for the first time, the Supreme Court applied the principle of loss of consortium. It held that a spouse has the right to claim compensation for the death of another spouse which resulted in the loss of companionship and services.

In Abacus Case, the Supreme Court defined the spousal consortium. The court held that the spousal consortium means the rights which are provided in a marital relationship for awarding compensation to the surviving spouse for the loss of affection, aid, company, society, and cooperation of the other spouse.

In Rajesh and Others v. Rajbir Singh and others, the court held that spousal consortium includes the right of the spouse to company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The spouse needs to be compensated appropriately for such loss. And, the court awarded 1 lakh rupees to the widow for the death of the husband.

In Ramkrishna Pillai v. Vijaykumari Amma, the Kerala High Court held that a wife cannot invoke spousal consortium and pressurize her husband to live separately from his parents unless there are grave circumstances.

Why Torts relating to Marital Rights are important?

Torts relating to marital rights are important due to the aura given to the relationship between a husband and wife. Marital relation has always been held worthy of getting legal protection. It protects the interest of a husband and wife against any injury caused to the physical integrity of his or her spouse. It compensates for the deprivation of financial contributions by the injured spouse in the household, affection, and sex caused by the injuries of the tortfeasor. For example, X injures W’s husband H in an accident, W can get compensation to recover the damages X has caused by injuring H; damages may include: H’s monthly pay which is being cut off because he is not going to work due to injuries caused, deprivation of affection and sexual relationship which W would have got if H was not injured etc.

Are there any Marital Rights which are covered both under Civil and Criminal law?

Yes. In India, for all the above-mentioned torts relating to marital rights, a person can institute a suit in the criminal court of law except for adultery. Adultery has been abolished as a criminal offense by the Supreme Court in September 2018 in the case of Joseph Shine v. Union of India.

Difference between rights given under Civil law and Criminal law

Under the torts relating to marital rights, only spouses are given the right to sue the third party whereas there is no such limitation imposed in the case of criminal law.

Mere abduction is not made punishable under the Indian Penal Code. It is only an offense when it is coupled with actual force. Whereas under torts relating to marital rights, even if a person entices the other spouse without using actual force, an action for the damages can be brought against the person.

Preference to civil or criminal right?

Under the criminal law, punishment for the offense is given in the form of fines, imprisonment and the other form of penalties which would not benefit the claimant spouse. Whereas when a spouse brings an action in the civil court of law, the claimant spouse will be awarded for damages in the form of compensation. Therefore, a spouse should always bring an action against the third party for the interference in the civil court of law if compensation is the priority.

Conclusion

Torts relating to marital rights play a major role in providing justice to a husband for deprivation of sexual relationship or companionship of his wife due to the wrongdoings of a tortfeasor. Earlier it was limited only to the rights of the husband. But with the evolution of law, Courts have recognized similar rights for the wife as well. In India, both the husband and wife avail similar rights under spousal consortium which majorly covers the accident cases under the Motor Vehicles Act. Therefore, it can be concluded that torts relating to marital rights overcoming the patriarchy concept have established equal right for the absence of companionship and services of the other spouse.

References

142 Cal. Rptr. 726 (1977)

487 F. Supp. 1078

(1808) 1 Camp 493

[1979] Qd R 55

(2018) SCC OnLine SC 1676

Torts Relating to Abuse of Legal Process

Introduction

Proceedings instituted maliciously may include not only malicious prosecution and malicious arrest but also malicious bankruptcy and liquidation proceeding (civil proceedings), malicious execution of process against property, and malicious search.[1] Malicious prosecution is the malicious intention of unsuccessful criminal or bankruptcy or liquidation proceedings against another without reasonable or probable cause.[2] Generally, it can be said that the malicious prosecution is defined as a judicial proceeding instituted by one person against another, from wrongful or improper motive, without any reasonable and probable cause to justify it.[3]

In the case of West Bengal State Electricity Board v. Dilip Kumar Ray,[4]the Court defined the term “malicious prosecution” in the following words:-

“A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it is a malicious prosecution.”

The Court in the same case laid down the distinction between “an action for malicious prosecution” and “an action for abuse of process” in the following words:-

“A malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to affect the improper use of a regularly issued process.”

Essential Elements of Malicious Prosecution

Following are the essential elements which the plaintiff is required to prove in a suit for damages for malicious prosecution:-

Prosecution by the defendant.

Absence of reasonable and probable cause.

Defendant acted maliciously.

Termination of proceedings in the favour of the plaintiff.

Plaintiff suffered damage as a result of the prosecution.

Prosecution by the defendant

The first essential element which the plaintiff is required to prove in a suit for damages for malicious prosecution is that he (plaintiff) was prosecuted by the defendant.[5] The word “prosecution” carries a wider sense than a trial and includes criminal proceedings by way of appeal, or revision.[6] In the case of Musa Yakum v. Manilal,[7] it was held that 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.

In the case of Khagendra Nath v. Jacob Chandra,[8]the Court held that merely bringing the matter before the executive authority did not amount to prosecution and, therefore, the action for malicious prosecution could not be maintained.

It is significant to note that departmental enquiry by disciplinary authority cannot be called prosecution.[9]

Absence of reasonable and probable cause

In a suit for damages for malicious prosecution, the plaintiff has also required to prove that the defendant prosecuted him without reasonable and probable cause. The question relating to want of reasonable and probable cause in a suit for malicious prosecution should be decided on all facts before the Court.[10] In the case of Antarajami Sharma v. Padma Bewa,[11]it has been said that law is settled that in a case of damages for malicious prosecution, onus of proof of absence of reasonable and probable clause rests on the plaintiff.

The existence of reasonable and probable cause is of no avail if the prosecutor prosecuted in ignorance of it. The dismissal of a prosecution or acquittal of the accused 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.[12]

Defendant acted maliciously

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is required to prove that the defendant acted maliciously in prosecuting him and not with a mere intention of carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage.

In the case of Bank of India v. Lekshmi Das,[13] the Court reiterated the Indian position that in malice absence of a probable and reasonable cause must be proved. 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.[14] 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.[15]

It is not necessary that the defendant should be acting maliciously right from the moment the prosecution was launched. If the prosecutor is innocent in the beginning but becomes malicious subsequently, an action for malicious prosecution can lie. If during the pendency of criminal prosecution, the defendant gets positive knowledge of the innocence of the accused, from that moment onwards the continuance of the prosecution is malicious.[16]

Termination of proceedings in the favour of the plaintiff

In a suit for damages for malicious prosecution, it is essential to show that the proceedings complained of terminated in favour of the plaintiff. Termination in favour of the plaintiff does not mean judicial determination of his innocence; it means absence of judicial determination of his guilt.[17] Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage.

No action can be brought when the prosecution or the proceedings are still pending. It is a rule of law that no one shall be allowed to allege of a still pending suit that it is unjust. [18]

Plaintiff suffered damage as a result of the prosecution

In a suit for damages for malicious prosecution, it is another essential element which the plaintiff is required to prove that The plaintiff suffered damage as a result of the prosecution. In a claim for prosecution, the plaintiff can thus claim damages on the following three counts[19]:-

Damage to the plaintiff’s reputation,

Damage to the plaintiff’s person,

Damage to the plaintiff’s property.

Malicious civil proceedings

In the case of Darbhangi Thakur v. Mahabir Prasad,[20] it was held that unlike malicious criminal prosecution, no action can be brought, as a general rule, in the case of civil proceedings even though the same are malicious and have been brought without any reasonable cause.

In the case of Genu Ganapati v. Bhalchand Jivraj,[21] it was held that following are the essentials to establish malicious abuse of civil proceedings:-

Malice must be proved.

The plaintiff must allege and prove that the defendant acted without reasonable and probable clause and the entire proceedings against him have either terminated in his favour or the process complained of has been superseded or discharged.

The plaintiff must also prove that such civil proceedings have interfered with his liberty or property or that such civil proceedings have affected or likely to affect his reputation.

Conclusion

It can be said that the malicious proceedings are that proceedings which are initiated with malicious intent. The elements (i.e. prosecution by the defendant, absence of reasonable and probable cause, defendant acted maliciously, termination of proceedings in the favour of the plaintiff and plaintiff suffered damage as a result of the prosecution) which are necessary to the plaintiff to prove in a suit for damages for malicious prosecution must be fulfilled. However, on the basis the facts and circumstances, the Court should decide whether the suit is filed maliciously or not.

References

[1] B.M. Gandhi, Law of Torts 165 (Eastern Book Company, Lucknow, 3rd ed., 2006).

[2]Prateek Shanker Srivastava, “Malicious Prosecution under Law of Tort”, available at http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html, (Visited on April 06, 2018).

[3] Available at https://upreparelaw.com/malicious-prosecution-notes-pdf-cases-law-torts/#What_Is_Malicious_Prosecution, (Visited on April 07, 2018).

[4] AIR 2007 SC 976.

[5] Ganga Din v. Krishna Dutt, AIR 1972 All, T.S. Bhatta v. A.K. Bhatta, AIR 1978 Ker. 111.

[6] Sheikh Mehtab v. Balaji, ILR 1946 Nag 358.

[7] (1904) 7 Bom LR 20.

[8]1976 Assam L.R. 379.

[9] D.N. Bandopadhyaya v. Union of India, AIR 1976 Raj. 83.

[10] Niaz Mohammad Khan v. Deane, (1948) ILR 2 Cal 310.

[11] AIR 2007 Ori. 107.

[12] Ratanlal & Dhirajlal, the Law of Torts 331 (Wadhwa & Company, Nagpur, 25th ed., 2006).

[13] (2000) 3 SCC 640.

[14] Ratanlal & Dhirajlal, the Law of Torts 334 (Wadhwa & Company, Nagpur, 25th ed., 2006).

[15] Bhim Sen v. Sita Ram, (1902) ILR 24 All 363.

[16] R.K. Bangia, The Law of Torts 209 (Allahabad Law Agency, Haryana, 23rd ed., Reprint, 2014).

[17] Ibid, p. 209.

[18] Ibid, p.212.

[19] C.M. Agarwalla v. Halar Salt and Chemical Works, AIR 1977 Cal. 356.

[20] AIR 1917 Pat. 460.

[21] AIR 1981 Bom. 170.

Fraud or Deceit in Torts

What is the Tort of Deceit?

When a person intentionally and knowingly deceives another person into an action that damages them, it is a type of a legal injury that occurs. Deceit specifically requires the tortfeasor to make a factual representation very well knowing of the fact that it is false, or indifferent or reckless about its truthfulness, intending that the other person relies on it, and then act in reliance on it, to his own harm. Under section 421 of the IPC or the Indian Penal Code and 17 of the Indian Contract Act (ICA), fraud is defined.

What is the meaning of Deceit and Fraud?

Fraud – a false or untrue representation of the fact, that is made with the knowledge of its falsity or without the belief in its truth or a reckless statement which may or may not be true, with intention to induce a person or individual to act independent of it with the result that the person acts on it and suffers damage and harm. In other words, it is a wrong act or criminal deception with an intention to result in financial or personal gain. In Dr. Vimla vs Delhi Administration [1], it was held that fraud is an intention to deceive involving deceit and injury to another person as its two elements.

Illustration: False insurance claims made by one to their insurer in case of a motor accident.

Deceit– a tort arising from an untrue or false statement of facts which are made by a person, recklessly or knowingly, with an intention that it shall be acted upon by the other person, who would suffer damages as a result. In other words, it is the practice or action of deceiving someone by misrepresenting the truth. In Ram Chandra Singh vs Savitri Devi [2] it was held that deceit was a fraudulent misrepresentation that consisted of leading a man into damage by recklessly and willfully causing him to believe and trust an act according to it.

Illustration: Drawing a cheque and presenting it to the creditor in the knowledge that it will not be paid.

What is Fraudulent Misrepresentation?

Fraudulent misrepresentation means a lie that is used to trick someone into an agreement which would cause some harm to them. Misrepresentations can be spoken, written, gestured, or even made through silence. A claim for fraudulent misrepresentation is found in the tort of deceit.

Example- If a jeweler sells a diamond ring which is later discovered to be a is crystal, then it is a fraudulent misrepresentation.

What are the elements of Fraudulent Misrepresentation?

The elements for fraudulent misrepresentation are:

False representation to the claimant must be made by the defendant,

the defendant should know that the depiction is false, or reckless as to whether it is true or false,

the defendant should intend that the claimant must act in dependence on it,

the claimant must act in reliance and trust on the representation and suffer loss as a consequence.

What is meant by Fraudulent Concealment?

Mere non-disclosure when a party has a duty to disclose. The essential elements to establish a prima facie case of fraudulent concealment are:

Concealing of a material relevant fact by the defendant,

the defendant should be under an obligation to disclose the facts to the plaintiff,

the defendant intentionally must have hidden or concealed the fact with the intent to deceive the plaintiff,

the plaintiff must be ignorant of the fact and wouldn’t have acted or behaved as he did if he knew about the concealed fact,

the concealment caused the plaintiff to sustain damage.

Non Disclosure of Known facts

It is not an actionable fraud wherein material information is known to a party and not to the other party. Responsibility or duty to disclose acknowledged information arises in which the party with the expertise of the facts is in a fiduciary or confidential relationship. The inability to disclose a negative fact that might have a foreseeably discouraging impact on income expected to be created by means of business is tortious.

Active Concealment of known facts

Intentional active concealment exists where a party knows of the defects in a property, deliberately conceals them, actively prevents investigation and discovery of material information by way of the other party, makes misleading statements, does not speak honestly or suppresses facts.In a claim of fraud that is by a false promise, the essential elements are as follows:

the defendant should have made a promise intending not to perform or act in accordance with it,

the promise must have been made with an intent to defraud the plaintiff, for the purpose of persuading the plaintiff to depend and rely upon it and act or refrain from acting in reliance upon it,

the plaintiff must have been ignorant of the defendant’s intention and must have acted in reliance upon the promise and must be justified in doing so,

as a result of reliance on the promise by the defendant, the plaintiff must have sustained damage.

Proof of Intent not to perform

When the promise was made, the conduct of a party making a promise either before or after the promise was made, should be taken into consideration to determine whether there was an intention to perform or not.

What is Negligent Misrepresentation?

The essential elements by a negligent misrepresentation for a claim of fraud are:

the defendant must make a representation as to a past or existing material fact,

the representation must be untrue,

the representation should be without any reasonable ground (regardless of the defendant’s actual belief) for believing it to be true,

it must be made with the intent to induce the plaintiff to rely and trust upon it,

the plaintiff must be unaware of the falsity of the representation, and thus acting in reliance upon the truth of the representation and must be justified in doing so,

as a result, damages must have occurred and sustained by the plaintiff.

Difference between Criminal and Civil fraud

Criminal Fraud

Civil Fraud

The case is brought forward by either the local state or the federal prosecutors.

The victim or the aggrieved party brings forward the case to the court.

A person accused intended on committing fraud needs to be proved.

The victim has to prove that the person being accused has misrepresented the facts although he knew that they were false.

Actual damage may not have occurred.

Actual damage needs to have occurred.

Success by the state results in the punishment of the defendant by fine, imprisonment, etc.

Success by the plaintiff results in restitution in the form of damages.

Examples- Mail fraud, Securities fraud, Tax evasion, etc.

Examples- Check forgery, pyramid schemes, selling fake or counterfeit items on the internet, etc.

What are the essential elements for the Tort of Deceit?

A claimant in deceit must prove the following elements-

False representation- This means that the defendant lied or misrepresented the facts. In Pasley v. Freeman [3]-

The plaintiff was dealing in cochineal at the time when the cause of action arose and had a large stock at hand which he anxiously wanted to dispose of.

Learning this the defendant said the plaintiff that he knew a buyer who would purchase the stock of cochineal. The plaintiff asked: “Is he a respectable and substantial person?” “Certainly he is” was the defendant’s reply, knowing well that he was not.

The plaintiff on his representations faith gave that purchaser 16 cochineal bags on credit worth around 3,000 sterling pounds.

When the bill became due, it turned out that the purchaser was insolvent and the plaintiff was unable to recover his money from the purchaser, the defendant was sued for making a false representation to him by compensating him.

The defendant was held liable to the plaintiff as far as he had suffered as a result of the former’s false statement about that buyer’s credit and character.

Knowledge of falsity- The defendant must know that the representation was false, or at least had no genuine belief that it was true. In Derry v. Peek [4]-

An act incorporating a tram company provided that, with the consent of the Board of Trade, carriages could be moved by animal power, by steam power.

The directors issued a prospectus stating that the company was entitled to use steam power instead of horses under the Act. The complainant took shares in this statements faith.

An act incorporating a tram company provided that, with the consent of the Board of Trade, carriages could be moved by animal power, by steam power.

The trading board declined their consent to use steam power and the company was wound up.

In an action against the directors for false statement, they were held not to be liable for the misrepresentation as they honestly believed that the statement was true even though they were guilty of some carelessness in making it.

Acting on the statement- The defendant made the representation with the intent that the plaintiff should act upon it. In Langridge v. Levy [5]-

The defendant sold a gun for use by himself and his sons to the plaintiff’s father, representing that the gun was made by a well-known manufacturer and safe to use, the son used the gun that exploded wounding his hand.

It was held that the defendant was liable to the son because there was a contract between them, not on his warranty, but for deceit.

Damage by acting on the statement- That the plaintiff acted in reliance on the statement and suffered damage as a consequence. No action will lie for a false statement unless the plaintiff, in fact, relies upon it.

In Denton v. G.N. Ry. Co. [6]-

A train that had been taken off was announced as still running in a railway company’s current timetable.

This was a misrepresentation and a person had missed an appointment by relying on it and the loss incurred was held to have a deceit action.

What are the Remedies given?

The tort of deceit is a cause of action that enables the victims to recover the financial loss that has been incurred due to being deceived. These losses can also include the cost of the investigation of the fraud. The four essentials must be fulfilled and the statement must be both false and dishonestly made. The leading authority on this point is still Derry v Peek in which Lord Herschell said:

“First, in order to sustain an action in 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, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false.”

What is the Effect of Silence?

Simply remaining silent about something will not in a usual course amount to false representation. But there are some exceptions to this rule.

Half-truths: It is a statement which only tells a part of the truth. It can be a false representation if the left out part of the statement makes what is said to be misleading and conveys some other meaning. Example- If A says, “I am a good driver. In the past thirty years, I have gotten only four speeding tickets.” This statement is true, but irrelevant if he started driving a week ago.

Deliberate concealment: Actively concealing information can amount to a false representation. Example- While selling clothes, Mr. B actively conceals a stain while showing the apparel which the buyer would otherwise have easily been able to see, he is making a false representation that the fault does not exist.

Failure to meet statutory requirements: In some circumstances, there is a statutory duty of the person to reveal some particular information. If in such cases he fails to do so then it can amount to a false representation.

What are the Damages given for Deceit?

The claimant is entitled to be put back into the position in which he or she would have been in if the deceit had not taken place. In other words, this means that if, for example, a claimant was led to believe they were buying a property worth Rs. 10,00,000 but the defendant knew that it was only worth Rs. 5,00,000, then the claimant is entitled to damages Rs. 5,00,000 and may claim it. This means that the defendant is liable for all losses directly flowing from their wrongdoing.

In some certain circumstances punitive damages so as to punish the person who defrauded may be levied. These are usually related to the actual losses suffered, the degree of malice and deceit showed.

What is it’s Relationship with Negligence?

It was decided in Hedley Byrne & Co Ltd v. Heller & Partners Ltd [7] , that individuals who make the statements which they should have known were false a direct result of their carelessness or negligence, can in certain circumstances, be liable to make compensation for any loss flowing, notwithstanding the decision in Derry v Peek. In the case of Bradford Equitable B S. v Borders [8], it was held that in addition, the person who made the statement must have intended for the claimant to have depended upon the statement. Negligence and deceit vary with respect to the remoteness of damages and harm suffered. In deceit, the defendant is liable for all losses flowing directly from the tort, regardless of whether they were predictable or not.

In Doyle v. Olby (Ironmongers) Ltd [9], Lord Denning MR commented, “it does not lie in the mouth of the fraudulent person to say that they could not reasonably have been foreseen.” So where there is an unexpected sudden downturn in the property market, an individual liable of deceitful misrepresentation is liable for all the claimant’s losses, regardless of whether they have been increased by such an unforeseen occasion. This is subject to an obligation to alleviate potential misfortunes. Contributory negligence is no defense in an action for deceit. However proving deceit is far more difficult than proving negligence, because of the prerequisite for intention.

References

[1]- 1963 AIR 1572, 1963 SCR Supl. (2) 585

[2]- AIR 2004 SC 4096

[3]-100 Eng. Rep. 450 (K.B. 1789)

[4]- (1889) LR 14 App Cas 337,, UKHL 1

[5]- Meeson & Welsby 519 (1837)

[6]- 854 S.W.2d 885 (Tenn. Ct. App. 1993)

[7]- AC 465,, 2 All ER 575,, 3 WLR 101,, UKHL 4

[8]- [1941] 2 All ER 205, HL

[9]- [1969] 2 QB 158

Slander of Title and Goods

Slander

“There is a ghost in the north end of the city that is causing a lot of trouble to the inhabitants. His chief haunt is in a vacant house on St. John Avenue, near to Main. He appears late at night and performs strange antics, so that timid people give the place a-wide berth. A number of men have lately made a stand against ghosts in general, and at night they rendezvous in the basement and close around the haunted house to await his ghost ship, but so far he still remains at large.”

The above paragraph is an excerpt from a newspaper article published by The Manitoba Free Press Company in regard to Rachel Miriam Gomez Nagy’s property. Nagy filed a suit against Manitoba for slander of title (Manitoba Free Press Co. v. Nagy, (1907) 39 S.C.R. 340)

We all have been in dilemmas where we had to choose between Domino’s and Pizza Hut or McDonald’s and Burger King and we all usually tend to prefer one over the other.

The 1980s witnessed the infamous aggressive ad campaigning by both McDonald’s and Burger King. Burger King advertisements stressed their flame-broiled burgers over McDonald’s offerings which were fried. Therefore, McDonald’s documented a claim in 1982, suing Burger King for false promoting, guaranteeing that they regularly steamed and warmed their burgers in microwaves. The claim was later rejected. Today, McDonald’s and Burger King are as yet bumping for their share of the market in the fast food showcase, in spite of the fact that the developing rush of gourmet burger joints makes it a lot harder battle. More contenders imply all the more promoting efforts, which implies the following notorious burger war business is presumably practically around the bend.

What is Slander essentially?

Slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another. It is always expressed in some temporary form.

What qualifies as Slander?

In order to file a suit for Slander, one must prove the following:

The statement must be false and defamatory;

The statement must refer to the plaintiff; and

the statement must be published.

How can one judge if the statement is a Slander or not?

A statement can be divided into two categories:A statement that is undoubtedly a slander ie. the statement in its original nature is defamatory. The statement made in this category either exposes the plaintiff to hatred, contempt and ridicule, tend to injure him/her profession/trade or cause him to be shunned by others in the neighbourhood.

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 (Plumber Dass v. Dwarka Prashad, (1870) 2 NWP 435).

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 per se defamatory.

In Shoobhagee Koeri v. Bokhori Ram, (1906) 4 CLJ 393, A wrote letters to the husband of X, in which he alleged X was a witch and had by her sorcery caused the death of some relations of A. He also made similar statements to their castemen. It was held that A was liable.

The statements which are innocent in their primary sense but may communicate defamatory meaning, if it is likely to be understood and in fact, understood in the light of certain existing facts known to the person to whom the statement has been made i.e.Innuendo.

In Cassidy v. Daily Mirror Newspaper Ltd. (1929)2 KB 231 The defendants published a photograph entitled “Mr. M.Corrigan, the racehorse owner and Miss ‘X’ whose engagement is announced” Mr. C had authorised this title. The defendant did not know the plaintiff’ s existence. She was and was known by her friends as the wife of Mr.C. She pleaded that the statement implied that she was an immoral woman cohabiting with Mr. C, proved injury to her reputation on that ground and recovered 500 Sterling Pound as damages.

In Tolly v. J.S.Fry and Sons Ltd., 1931 AC 333 An amateur golf champion recovered damages because the defendants, a firm of chocolate manufacturers, had published a caricature on him-a packet of their chocolate protruding from his pocket, as an advertisement of their goods. The innuendo was in effect that he had consented to the use of his portrait as an advertisement for reward and had prostituted his reputation as amateur golfer. The caricature of the plaintiff, innocent in itself as the caricature, lent itself to an adverse construction, being embodied in an advertisement.

Slander of Title

What is Slander of Title?

When an untrue and disparaging statement is published about another person’s property, movable or immovable that further goes on to impacting negatively on the property is called Slander of Title.

On the off chance that lands or chattels are going to be sold by an auction and a man announces in the auction room, or somewhere else, that the seller’s title is blemished, that the grounds are sold, or that the belongings are stolen property thus deflects individuals from purchasing, or makes the property be sold at a less cost than it would somehow have figured it out. This gives by all appearances guarantee for compensation for damages.

What must you prove in order to claim Slander of Title?

In order to sustain an action for slander of title, the plaintiff must prove the following essentials:

The statement or representation was false.

Who carries the burden of proof?

The plaintiff has the burden to establish that the disparaging statement was false and untrue. If the statement is true; if there is really an infirmity in the title as is suggested or if there is the advancement of one’s legitimate interests, no action will lie.

Is malice necessary to hold the case up?

The false statement must be such as is calculated to cause harm to the plaintiff. A bona fide assertion of the defendant’s title to the property, however mistaken, if made for the protection of one’s own interest or some other right purpose is not malicious. No action will lie in a case where there is no malice. The plaintiff must prove that the false statement resulted in actual pecuniary loss and damage to one’s economic interests.

An individual who goes to the intending occupants of a specific building and deters them from taking the building on lease by owning false expressions with respect to its livability and security is at risk in tort on the off chance that he is incited by malice. The tort is closely resembling slander of title falling inside the expansive portrayal of damaging deception.

The defendant, after discovering that the plaintiff was attempting to sell his home, put a vast sign on bordering land which read to some degree: “Notice. Anybody purchasing No. 20 Malibu is purchasing lawsuit.” subsequently, the plaintiff was unfit to sell the house. The defendant was held liable for slander of title.

On the off chance that lands or chattels are going to be sold by closeout and an individual announces in the auction room, or somewhere else, that the seller’s title is deficient, that the terrains are sold, or that the belongings are stolen property, thus stops individuals from purchasing, or makes the property be sold at a cost lesser than it would some way or another have understood, this is a slander upon the title of the proprietor, and gives him at first sight guarantee for compensation in damages.

In Ratcliffe v. Evans, [1892] 2 QB 524 The plaintiff had for a long time carried on the business of an engineer and boiler producer under the name ‘Ratcliffe and Sons’. The defendant was the owner of the ‘County Herald’, a Welsh paper. The defendant in his paper, distributed dishonestly and malignantly, that the plaintiff had stopped to carry on his business and that the firm ‘Ratcliffe and Sons’ no longer existed. It was held that the defendant was liable in damages as his announcement unfavorably influenced the plaintiff’s business and prompted loss of custom. The proof of general loss of business was adequate to help the action.

The statement was published; (The false statement must be published to some person other than the plaintiff) (The statement may be oral or written or even conduct conveying a false impression may be sufficient)

The statement was made maliciously i.e. with the intent to injure the plaintiff or with some dishonest or improper motive;

The plaintiff suffered damage as a consequence.

What are the Remedies available in a Slander of Title Case?

The remedies of injunction and declaratory judgment are more appropriate than an action for damages.

A plaintiff must typically show what are called “special damages” to prove his or her slander of title case. This means that a defendant might knowingly make an untrue statement about the plaintiff’s property, but if the statement did not cause “special damages,” the slander of title claim will fail.

Special damages in slander of title claims include any provable economic damages resulting from the slander, for example a cancelled lease, and the expenses necessary to clear up the slander, including legal fees. Note that the “special damages” legal fees are not what the plaintiff pays his or her attorney to sue for slander of title, but prior legal fees paid to, for example, clear a public record or to get a court’s declaratory judgment about who owns the property.

What are the defences to Slander of Title?

Privilege

A defendant can claim the defence of privilege in two very limited circumstances. The first circumstance is called a conditional privilege. A conditional privilege to the slander of title exists when a defendant has a reasonable basis to believe what he is saying about the plaintiff’s property. Just like the requirement of “malice” in some states, the conditional privilege is just another way of saying the defendant should have known the statement was untrue or had no reasonable basis to believe it was true.

Another privilege, which exists in all jurisdictions, is the absolute privilege to make otherwise slanderous statements against the plaintiff’s title in judicial proceedings, for example, statements made during litigation. If either an absolute or a conditional privilege applies, the plaintiff will lose the slander of title case even if all of the other elements are satisfied.

Statutory Authority

If an act is authorised by a statutory enactment or a law passed by the legislature, then the defendant cannot be held liable for damages resulting in the course of such an act.

How is Disparagement different from Defamation?

DISPARAGEMENT DEFAMATION Protects property interests Protects Reputation Required to prove falsity to establish a prima facie case. Falsity of a defamatory publication presumed Showing of an intent to injure required in disparagement actions. Defendant’s intent irrelevant at common law Courts have always required proof of actual damage to sustain a suit for disparagement Proof of actual damage is not always required

Both torts have always required a derogatory publication and have had substantially the same common law privileges.

Slander of Goods

A makes a false statement that B’s goods are an infringement of C’s trade mark and warns B’s customers not to buy them. A is liable to B in an action for slander of goods.

It may be defined as “a false statement, whether by word of mouth or in writing, disparaging a man’s goods, published maliciously and causing him special damage”.

What has to be proved to file a suit for Slander of Goods?

To maintain an action for SLANDER OF GOODS, it is necessary to prove the following essentials:

The defendant disparaged the goods of the plaintiff;

The disparagement was false;

The disparagement was made maliciously;

The disparagement was published, orally or in writing, to some person other than the plaintiff;

The disparagement resulted in special damage

How is Slander of Goods protected under Law?

Section 36A(1)(x), Monopolies and Restrictive Trade Practices (MRTP) Act, 1969 which stated that whoever gives false or misleading facts disparaging the goods, services or trade of another person would be engaging in an unfair trade practice.

Section 2(1) (r) (1) (x), Consumer Protection Act, 1986

Can boasting of one’s own goods result in Slander of others’ goods?

The offended party manufactured and sold food items under the name “Mellin’s Infants’ Food”. The litigant, a chemist, sold the offended party’s food at his premises. He acquired tins of child nourishment made by the offended party to which he appended a mark, outwardly of the parcel, expressing that “Dr. Vance’s Prepared food for Infants was the most healthful and nutritious for infants and invalids than any preparation that has been offered to the public”. Dr. Vance’s Prepared Food for Infants was in certainty the litigant’s very own image in which he had a proprietary interest

The defendant’s conduct did not amount to trade libel or slander of goods. It was held that his announcement would not bolster a reason for action since it was simply a bit of puffery, proposed more to advance the closeout of the defendant’s items than to disparage the plaintiff’s party’s food. The announcements were too general to establish an action.

Boasting with figures showing poor results of competitor

In De Beers Abrasive Products Ltd. v. International General Electric Co. of New York Ltd., [1975] 2 All ER 599, the plaintiffs and the defendants manufactured and distributed abrasives (grinding instruments) made from diamonds. The abrasives of the plaintiffs were made from natural diamonds, whereas those of the defendants were made from synthetic diamonds.

The defendants published a brochure wherein it was stated that the abrasive “MBS70” manufactured by them was found, through scientific laboratory testing, to be more effective in cutting concrete than the plaintiffs’ rival product “Debdust”. The brochure showed the results of comparative scientific tests on the products of the plaintiffs and defendants.

The plaintiffs brought an action for slander of goods alleging that the statement was false and disparaged the goods of the plaintiff as being of poor quality. The defendants contended that the pamphlet was a mere idle puff and the claim of the plaintiffs should be struck out.

The court made it clear that a trader is entitled to “puff” his goods. By that reasoning, it is permissible to claim that one’s goods are “the best in the world”. But it is not permissible to denigrate a rival’s goods by making untrue claims that a reasonable person would take seriously.

The court held that the claims contained potential for liability and the report published was intended to be taken seriously and could not be dismissed as mere puffery.

Does False Advertising of one’s own good result in Slander of others’ Goods?

The offended party and respondent were the proprietors of papers circling in a similar region. The litigant distributed an explanation that “the course of” his paper was “20 to 1 of some other weekly paper in the district” [there being just a single such paper, for example, the plaintiff’s] and “where others count by the dozen, we count by the hundred”. This was false and was found to stigmatize equals in possibly making sponsors change far from different papers to that of the litigant. The announcement was held to be significant.

It was held that those announcements were not an unimportant puff but rather added up to stigmatization of the offended party’s paper and were noteworthy on confirmation of genuine harm.

Conclusion

Eventually, recognizing and defining the ownership interest at issue and placing it in the appropriate context is essential for lawyers involved with potential slander of title. Such a determination will also help make sure that the amount of special damage, among other associated issues, is accurate. Whilst the property interest aspect of title slander has always been essential and often not disputed, it is important to acknowledge that such property interests can be loosely defined, making the standing obstacle easy to overcome.

The Tort of Passing Off

Meaning of passing off

Passing off means that the defendant-

a- by making a false representation,

b- sells goods,

c- with the intention to deceive the purchaser, and,

d- the plaintiff believes that the goods being sold by are of the defendant.

The protection of commercial goodwill is the objective of the tort of passing off. It ensures that exploitation of the people’s business reputation does not take place. “No man can have any right to present his goods as the goods of someone else” is the underlying philosophy of the tort of passing off.

In countries like the UK, New Zealand and Australia where common law is practiced, the tort of passing off is a common law tort that is used for the enforcement of unregistered trademark rights. A trader’s goodwill is protected by the tort of passing off from misrepresentation. It not only prevents misrepresentation by a trader of his goods or the services being provided but also holds out some connection or association with another when it is false.

Law of Passing off in India

Actionable under common law, the law of passing off in India is mainly to protect the goodwill that is attached to unregistered trademarks. One should not get benefit from the labor of another person is founded in the basic principle of law.

In the Trademarks Act, passing off is defined in section 27 (2), 134 (1) (c) and Section 135. The jurisdiction or power of the district courts in the matter of passing off suits, to try the suit or issue injunction is referred in section 134(1)(c). Establishment of the case and the irreparable injury or loss causes is done by the plaintiff.

No person is entitled to represent the goods of another person as his own. Using of any signs, symbols, marks, devices or some other means wherein a direct false representation to a person is permitted.

Passing off through deception, was a kind of unfair trade or actionable unfair trade through the means of which a person obtains economic benefit of the established reputation by another person. And thus uses in a particular business or trade to be benefitted by it. Such action is regarded as an action for deceit. In Wockhardt Ltd. Vs. Torrent Pharmaceuticals [1], it was passed in a judgement that intention to defraud or deceive, should not be considered to analyze misrepresentation.

Passing Off and Trademark Law

For passing off is a cause of action in a form of intellectual property enforcement which is against the unauthorized use of a get-up. The term get up means the look-and-feel or the external appearance of a product which may include some marks used. These are considered similar to the products of another party and includes unregistered or registered trademarks.

An action for a trademark in passing off where infringement based on a registered trademark is of a particular significance as it is unlikely to be successful. This is as a result of the differences arising between registered mark and the unregistered trademarks.

A statutory law such as the United Kingdom Trade Marks Act 1994 in passing off and is a common law cause of action, providing for the enforcement of registered trademarks through infringement proceedings.

Passing off does not give any names, marks, get-ups or other indices monopoly rights. It does not recognize them as a property in its own right. Passing off and trademark law manage overlapping factual circumstances, but deal with them in different ways. Instead, the passing-off law is designed to avoid misrepresentation in the course of public trade. Example- as in the case of some sort of association between the businesses of two traders.

In the trade mark decision of Trade Mark Opposition Decision in 2001, two brands of confectionery both named “Refreshers”, one made by Swizzels Matlow and the other by Trebor Bassett that had existed since the 1930s. It was held that it would deceive a purchaser as to certain things like their source for some items but not for others. Both coexist in the marketplace.

Essentials of Passing Off

To make one liable for the tort of passing off, the plaintiff must prove the following-

His goods were known to the public by some mark, distinctive name, appearance, get up, or badge.

The defendant made a spoken or written representation by the conduct of others or by word of mouth.

The use or initiation of the name by the defendant misleads the public and made them believie that the goods by the defendant were of the plaintiff.

In the ordinary course of business, the defendant’s conduct is likely to mislead or deceive the public at least in case of unwary or incautious, if not the intelligent or careful purchaser.

The three fundamental elements often referred to as the Classic Trinity as restated by the House of Lords in the case of Reckitt & Colman Products Ltd v Borden Inc [2]. It stated the three elements-

1- Goodwill owned by a trader: Firstly the plaintiff must establish reputation or goodwill attached to his services or goods in a suit for passing off.

2- Misrepresentation: The plaintiff must prove a misrepresentation to the public by the defendant. That means that it must be likely to lead the public into believing that the plaintiff has offered the goods and services.

3- Damage to goodwill: The plaintiff needs to demonstrate that a loss has been suffered due to a belief that the services and goods by the defendant are those of the plaintiff.

Modern Elements of Passing off

Lord Diplock in the case of Erven Warnink Vs. Townend [3], gave the modern characteristics of a passing off action. The essential characteristics are-

Misrepresentation.

Made in the course of trade by a person.

The ultimate consumers of goods or services or to prospective customers of his or supplied by him.

That is calculated as such to injure the goodwill or business of another trader.

That causes actual damage to the goodwill or business of the trader by whom the action is brought.

The concept of passing off as stated above can be explained as in the case of Honda Motors Co. Ltd V Charanjit Singh & Others [4],

Facts of the case: The plaintiff had been using the trademark “HONDA” with respect to the automobiles and power equipment. The defendants for its pressure cookers had started using the mark “HONDA”. The plaintiff brought an action of suit against the defendants for passing of the business of the plaintiff.

Held: The judgment held that the defendant’s use of the mark “Honda” could not be said an honest adoption. The usage of the mark by the defendant was likely to cause confusion in the minds of the public. The application of the plaintiff was therefore allowed.

Goodwill

The action of passing off would lie where a real possibility of the damage to goodwill to trading or a business activity takes place. The plaintiff thus needs to establish goodwill in the goods or services in his business with which the public or the trade associated with the defendant’s activities. It need not be established in the minds of each and every member of the relevant public but must be in a significant section of it.

Deceptive Similarity

Pertinent judgments on the meaning of deceptive similarity and the facts that need to be considered that suggest whether there is a deception in the products or services of the parties concerned are:

(a)- When placed together, two marks may exhibit different differences, but both of them may have the same main idea on the mind, could be deceived a person who is familiar with one mark and does not have the two side by side for comparison. If the goods were permitted to be impressed with the second mark, in the belief that he was dealing with goods bearing the same mark as he was familiar with.

(b)- In the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals [5], it was stated that in an action on the basis of unregistered trade mark for passing off, to identify the deceptive similarity, the factors to be considered are-

(i)- Nature of the marks that means whether the marks are label marks, word marks or composite marks (both label and word).

(ii)- Degree of resemblance between the marks. If it is phonetically similar then the idea is similar.

(iii)- Nature of goods with respect to their usage as a trademark.

(iv)- The similarity in the character, nature, and performance of the goods of the competitors.

(v)- Class of the purchasers who are to likely buy the goods or services with the marks they require. Their intelligence or education as a degree of care that they are likely to exercise in purchasing those goods.

Loss Due to Passing off

It is of utmost importance that the party that is claiming the benefit under passing off might have incurred a loss due to the opposite party’s action of the passing of their goods or the services as that of the former party. It is essentially important to be observant and vigilant about one’s right as a service provider or as a trader. Initiation of an appropriate action against illegitimate users to save one’s identity of the business, the money, effort and time involved into creating a law is for those who are aware of their rights and have the means for its enforcement.

Importance of Passing off

Trademarks provide protection to registered goods and services whereas the action of passing off provides protection to the unregistered goods and services. The most important factor is that in both cases, the remedy is the same. But the distinction lies on the fact that trademarks are available only for registered goods whereas passing off is available for unregistered goods. In the case of Durga Dutt vs. Navaratna Pharmaceutical [6], the distinction between passing off and infringement was set by the Supreme Court.

Difference between Passing off and Infringement

Passing off

Infringement

Passing off is available to unregistered goods and services.

Statutory remedy conferred on the owner of a registered Trademark.

The use of the trademark of the plaintiff by the defendant is not essential.

The use of the trademark of the plaintiff by the defendant is essential.

The defendant may escape liability if sufficiently distinguished from the plaintiff’s goods is present.

The defendant cannot escape liability.

Remedies for Passing Off

The remedies granted in case of the tort of passing off are-

1. Injunction

In B K Engineering Co. v. Ubhi Enterprises [7],

Facts- The appellants manufactured bicycle bells using their house mark B.K. with their name stamped on the product as B K Engineering Co. Under the trademarks of venus and crown, these products were manufactured. The respondents had started manufacturing bicycle bells marked as B.K.-81 which was also stamped on the product U.B.H.I. Enterprises Regd. An application for an interim injunction was made by the appellants, seeking to restrain the opposite party from marketing their products under the said trademark.

Held- Interim relief was declined by a single judge. In allowance to the appeal in contrast to the refusal of the injunction the Court held that:

(i) the adoption by the defendants of B.K.-81 would lead a person to think that it is a product of either a business associate or an affiliation of B.K. Engineering Co.

(ii) there is a risk that some consumers would perceive the connection between the defendant and the plaintiff.

(iii) the defendants cannot be allowed of the plaintiff’s popularity in cash of their goodwill.

(iv) if it is not prevented then it would harm the plaintiffʼs business.

(v) sufficient grounds for the granting of a temporary injunction is present.

2. Damages or Compensation

In Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. co. [8], it was stated that:

(i) Under the Law of Torts, a common law remedy being an action in substance of deceit is an action for passing off.

(ii) When a deceitful act is committed, then the person deceived would have a cause of action in his favor.

(iii) When a person passes off his goods or services as that of another person then he commits the act of such deceit.

3. Account of profits

(i) The purpose of the profit account is not to punish the defendant but to avoid unjust enrichment resulting from passing off.

(ii) An account shall be limited to the actual profits made and attributable to the infringement.

(iii) The plaintiff shall take the business of the defendant as it is.

References

CIVIL APPEAL NO. 9844 OF 2018

HL 1990

HL 1979

101 (2002) DLT 359, 2003 (26) PTC 1 Del

2001 PTC 541 (SC)

AIR 1962 Ker 156

AIR 1985 Delhi 210, 27 (1985) DLT 120

1997 (17) PTC 98 (SC)

Procuring a Breach of Contract

Introduction

In Lumley v Gye [1853] EWHC QB J73 A singer named Johanna Wagner was hired for three months by Benjamin Lumley to sing exclusively at Her Majesty’s Theater. Frederick Gye, who ran the Covent Garden Theater, promised to pay her more to break her contract with Mr. Lumley. Although an injunction was issued to prevent her from singing at Covent Garden, Gye persuaded her to ignore it. Therefore, Lumley sued Gye for damages.

The above case is a foundational English tort law case, heard in 1853, in the field of economic tort. It held that one may claim damages from a third person who interferes in the performance of a contract by another.

What is a Breach of Contract?

It is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance.

Breach of contract may arise in two ways:

(1) Actual breach of contract

(2) Anticipatory breach of contract

Anticipatory breach of Contract

In an example, where Mr. Sherlock contracts with Mr. Watson on 25th August 2018 to supply 15 kilos of Rice for a specified sum on 25th September 2018 and on 12th September 2018 informs Mr. Watson, that he will not be able to supply the said cotton on 25th September 2018, there is an express rejection of the contract.

In another example, where Mr. Darko agrees to sell his white horse to Mr. Elric for ` 50,000/- on 14th January 2018, but he sells this horse to Mr. Armstrong on 9th January 2018, the anticipatory breach has occurred by the conduct of the promisor.

An anticipatory breach of contract is a breach of contract that occurs before the time fixed for performance has arrived. When the promisor completely refuses to fulfill his promise and signifies his unwillingness even before the time for performance has arrived, it is called Anticipatory Breach. Anticipatory breach of a contract may take either of the following two ways:

Expressly by words are spoken or written, and

Impliedly by the conduct of one of the parties.

Is Anticipatory breach of Contract protected under Law?

Section 39 of the Indian Contract Act deals with anticipatory breach of contract and provides as follows: “When a party to a contract has refused to perform or disable himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, but words or conduct, his acquiescence in its continuance.”

What are the effects of Anticipatory breach of Contract?

Effect of anticipatory breach: The promisee is excused from the performance or from further performance. Further, he gets an option

To either treat the contract as “rescinded and sue the other party for damages from breach of the contract immediately without waiting until the due date of performance; or

He may elect not to rescind but to treat the contract as still operative, and wait for the time of performance and then hold the other party responsible for the consequences of non-performance. But in this case, he will keep the contract alive for the benet of the other party as well as his own, and the guilty party, if he so decides on re-consideration, may still perform his part of the contract and can also take advantage of any supervening impossibility which may have the effect of discharging the contract.

Actual breach of Contract

Unlike the anticipatory breach, it is a case of refusal to fulfill the promise on the scheduled date. The parties to a lawful contract are bound to fulfill their respective promises. But when one of the parties breaks the contract by refusing to fulfill his promise, a breach is said to have been committed. In that case, the other party to the contract obtains the right of action against the one who has refused to fulfill his promise.

Actual Breach of Contract under Law

Section 37 of the Indian Contract Act,1872 provides that the parties to the contract are under obligation to perform or offer to perform, their respective promises under the contract, unless such performance is dispensed with or excused under the provisions of the Indian Contract Act or of any other law.

When is an Actual breach of contract committed?

At the time when the performance of the contract is due

For example, Mr. Vader agrees to deliver 130 bags of wheat to Mr. Yoda on March 21, 2018. He failed to supply Mr. Yoda with 130 bags of wheat on the said day. This is an actual breach of contract. Mr. Vader committed the breach at the time the performance is due.

During the performance of the contract

Actual breach of contract also occurs when one party fails or refuses to fulfill its obligation under it by an express or implied act during the performance of the contract.

What is Tortious Interference?

Wrongful or tortious interference with contracts refers to a situation in which a third-party intentionally causes a contracting party to commit a breach of contract. This may be accomplished through inducement or by disrupting a party’s ability to perform their contractual obligations. The purpose of tortious interference laws is to allow parties the freedom to contract with one another and fulfill their contractual obligations without third-party meddling.

In Pepsi Foods v. Bharat Coca-Cola Holdings Pvt. (1999) Delhi High Court, The plaintiffs have filed a suit for declaration and permanent injunction against the defendants. In this suit, the plaintiffs have also prayed for the grant of an injunction during the pendency of the suit. The plaintiffs broadly categorised the illegal and unethical actions of the defendants in six heads, which are reproduced below:

Inducing by unlawful means, groups of key marketing and other strategic employees of the plaintiffs to breach and/ or terminate their employment contracts with the plaintiffs and enter into employment contracts with the defendants.

Inducing by unlawful means, employees of Pepsi’s independent bottlers, into breaking/ breaching their contracts.

Inducing by unlawful means, the independent business consultants under contract with the plaintiffs to break/breach their contracts with the plaintiffs.

Inducting by unlawful means, the distribution partners of the plaintiffs to breach their distribution agreements/arrangements with the plaintiffs and enter into similar agreements/arrangements with the defendants.

Inducing by unlawful means, institutional accounts to breach their marketing and sponsorship agreements/arrangements with the plaintiffs and enter into similar agreements/arrangements with the defendants.

“Post-employment restrictions were held to be invalid and violative of Article 19 (1)(g) of the Constitution”. Negative covenant in contract restraining employee from engaging or undertaking employment for twelve months after leaving the services of the plaintiff was held to be contrary and in violation of Section of the Indian Contract Act, 1872 and injunction was declined.

Who is a Tortfeasor?

The third-party interferer, called the “tortfeasor,” is usually an individual that was not a party to the contract and is interfering for his own financial gain. For this reason, the plaintiff’s remedy will be in tort law, rather than contract law. The plaintiff (the non-breaching party to the contract) will have to show that the tortfeasor acted intentionally, both with regards to his own actions and the resulting contractual breach (meaning he must have known about the contractual relationship and caused the breach anyway).

What does Inducement in Law mean?

An advantage or benefit on the part of an individual that precipitates a particular action.

In contract law, the inducement is a pledge or promise that causes an individual to enter into a particular agreement. Induction to buy is something that encourages an individual to buy a particular item, such as the promise of a price reduction.

The plaintiff had a contract with farmers on a particular route to transport their milk to the creamery of the defendant. The defendant sent a letter to the farmers doing business with the plaintiff, informing them that only milk picked up by their own trucks would then be accepted at the creamery. The farmers continued to give milk to the plaintiff until the defendant refused to accept milk from the plaintiff who was forced to discontinue his route because he was unable to find another market. The plaintiff takes action for the wrongful procurement of a contract breach. Notwithstanding the verdict in favour of the plaintiff, the trial court gave a judgment of no cause of action. Held on appeal that the defendant’s act of persuading a breach of contract, whether to injure the plaintiff or to benefit himself, was malicious and actionable. His refusal to accept further deliveries from the complainant was wrong because it was done for the unlawful purpose of causing a breach of the latter’s contract with the farmers, which was expressed in his letters to them. The defendant is liable even though the plaintiff’s proximate cause of loss was his inability to find another market (Wilkinson v. Powe, 1 N.W. (2d) 539 (Mich. 1942)).

In general, an action cannot be maintained for inducing a person to breach his contract with another.

Inducement as a Tort

The classic form of this tort, as featured in Lumley v Gye, involves persuading the defendant to breach the contract partner of the claimant. Subsequently, courts accepted varieties of this tort, some of which focused not on induction but prevention, and one of which focused on interference rather than induction. This uncertain ambit resulted from the failure to identify the other major general economic tort namely the unlawful means tort. OBG re-asserts the classic scope of this tort, rejecting the modern varieties (most of which would now be covered by the unlawful means tort) and restricting liability to those claimants who have actual knowledge of the contract which they seek to persuade the claimant’s partner to breach.

Despite being suggested that the tort today is almost unrecognisable as a descendant of its ancestor, Lumley v Gye still provides the essential foundation for the modern action. A helpful statement of the tort was offered in Crofter Hand-Woven Harris Tweed v Veitch:

If Mr. Rick has an existing contract with Mr. Morty and Mr. Walter is aware of it, and if Mr. Walter persuades or induces Mr. Rick to break the contract with resulting damage to Mr. Morty, this is generally speaking, a tortious act for which Mr. Walter will be liable to Mr. Morty for the injury he has done him. In some cases, Mr. Walter may be able to justify his procuring of the breach of contract.

The elements of A contract between Mr. Rick and Mr. Morty;

Mr. Walter’s knowledge thereof;

Mr. Walter’s persuasion or inducement for Mr. Rick to breach the contract with Mr. Morty;

Resulting damage; and

The defence of justification will be considered in turn.

The contract between Mr. Rick and Mr. Morty

There must be a contract on foot; inducing someone not to enter into a contract is not actionable. The contract must be valid, enforceable and not voidable or otherwise defective cases involving mistake, a lack of capacity and contracts invalid for being contrary to public policy did not give rise to the tort.

Knowledge

The defendant must know of the contract between Mr. Rick and Mr. Morty. While “there need not be knowledge of the precise terms of the contract,” an appreciation of the broad nature of the contractual relationship is required. Once that knowledge exists, “the intervener is sufficiently fixed with notice that he interferes at his own risk.” Inducement and breach The defendant must then induce or procure Mr. Rick to breach their contract with Mr. Morty. Any breach is sufficient.

Is malice a necessary element?

While malice is not a necessary element, a degree of deliberateness or intention is required —“mere negligent interference is not actionable”. The scope of this element and the requisite directness is an area of jurisprudential uncertainty. In a series of British cases in the second half of the twentieth century, liability was significantly expanded to the extent that the tort could be established with indirect interference with a contract’s performance. In 2008, the House of Lords reversed this trend and emphasised the need for an intentional procurement of the breach.

Cooley on Torts, 4th Ed. (1932) p. 360; Hartman v. Green, 190 So. 391 (La. 1939). The cases are numerous, however, which held that if such an inducement be malicious if it is made with knowledge of the contractual relations between the parties, and if it is without justification, an action in tort will lie. The principal case, Wilkinson v. Powe, supra, is in accord with this ruling. The malice necessary for the maintenance of an action in such cases is not actual malice or ill will, but rather the intentional doing of an act without justification or excuse. Thus it is of no consequence whether the motive of the one who induced the breach was to gratify spite by doing harm to another or to benefit himself.

In a case where the plaintiff and the defendant submitted competitive bids to furnish 5 Black No. 1 for ink, the plaintiff’s sample having the highest rating and the lowest price, and the ink maker who tested all samples submitted advised the Bureau of Engraving and Printing to reject all bids on that type of ink, to order correspondingly larger quantities of No. 7 Hard Black, and to accept the defendant’s bid on that type of black, the court held that since the defendant had a contract with the ink maker to produce No. 7 Hard Black according to a process formulated by the ink maker and to pay him for the use of such process as long as it was found to be commercially advantageous, the jury might find that the ink maker’s motive in rejecting the plaintiff’s bid was to benefit himself, and that such motive was induced by the acts of the defendant. The court said that the word “malicious” did not necessarily mean personal ill will, “but merely a wrongful purpose to injure, or to gain some advantage at the plaintiff’s expense.” It is to be noted that the action, in this case, was for malicious prevention of entrance into a contract rather than malicious interference with an already existing contract.

In Wade v. Culp, 23 N.E. (2d) 615 (Ind. 1939) the court held that action for maliciously inducing breach of contract as based on the intentional interference without justification rather than on the intent to injure.

In the minority by far are cases such as Caskie v. Philadelphia Rapid Transit Co., 344 Pa. 33, 5 A. (2d) 368 (1939) which hold that malice necessarily implies a wanton disregard for the rights of another; and that there can be no recovery in an action of this type against one who is seeking simply to enforce what he regards as his own rights. The court in the Caskie case defined malice as “that spirit of evil which sometimes grips individuals and nations and motivates those who delight in doing harm to others.”

A similar decision was reached in United States v. Newbury Mfg. Co., 36 F. Supp. 602 (Mass. 1941) where the plaintiff was not permitted to recover in the absence of fraud or deceit. Fraud or other tortious act was also held necessary to maintain the action in Guida v. Pontrelli, 186 N.Y. Supp. 147, 114 Misc. Rep. 181 (1921) and Turner v. Fulcher, 165 N.Y. Supp. 282 (1917)

Damage

Damage must be proven or inferred, although it is sufficient for the plaintiff to demonstrate “the likelihood of more than nominal damage resulting” from the complained of conduct. There must also be a minimal nexus between the defendant’s conduct and the damage — in one case, the damage would have been sustained in any event, so the action failed.

What is Fraudulent Inducement?

If one party in an agreement convinces another to sign a contract based on false information, this is called fraudulent inducement. When fraudulent inducement causes some form of injury to the party that signed based on a lie, they have the right to pursue legal action.

Usually, this type of inducement takes place before the contract is signed. In the case that fraudulent inducement is proven, the injured party can rescind the agreement or seek damages after the contract has been completed.

Fraudulent inducement is very important in contracts like loan agreements, employment contracts, and others. It usually happens when one side of the contract convinces the other to sign using lies or trickery. This can be done with threats as well. If a bank tells someone that they have to sign a mortgage contract or they will lose their car, this is considered fraudulent inducement if that consequence is false.

Contract lawyers are a great resource when considering signing a contract or forming one of your own. They can help avoid illegal forms of inducement, whether intended or accidental. Contract law is complicated, so it’s better to enlist the help of a lawyer than trying to handle it yourself.

How to prove Fraudulent Inducement?

It can be tough to prove fraudulent inducement for the following reasons:

To be considered fraud, the fraudulent statements must have been presented as facts and not opinions.

There must be proof that the injured party relied on the false statements.

Integrated contracts make it even more complicated to prove fraud.

The court must be provided with a persuasive record of the contract and its fraudulent statements.

Note: An agreement is integrated when the parties adopt the writing or writings as the final and complete expression of the agreement.

Does Misrepresentation amount to Inducement?

The misled party must show that he relied on the misstatement and was induced into the contract by it.

In Attwood v Small, Small, the seller, made false claims about the capabilities of his mines and steelworks. The buyer, Attwood, said he would verify the claims before he bought, and he employed agents who declared that Small’s claims were true. The House of Lords held that Attwood could not rescind the contract, as he did not rely on Small but instead relied on his agents. Edgington v Fitzmaurice confirmed further that a misrepresentation need not be the sole cause of entering a contract, for a remedy to be available, so long as it is an influence.

A party induced by a misrepresentation is not obliged to check its veracity. In Redgrave v Hurd Redgrave, an elderly solicitor told Hurd, a potential buyer, that the practice earned £300 pa. Redgrave said Hurd could inspect the accounts to check the claim, but Hurd did not do so. Later, having signed a contract to join Redgrave as a partner, Hurd discovered the practice generated only £200 pa, and the accounts verified this figure. Lord Jessel MR held that the contract could be rescinded for misrepresentation, because Redgrave had made a misrepresentation, adding that Hurd was entitled to rely on the £300 statement.

By contrast, in Leaf v International Galleries, where a gallery sold painting after wrongly saying it was a Constable, Lord Denning held that while there was neither breach of contract nor operative mistake, there WAS a misrepresentation; but, five years have passed, the buyer’s right to rescind had lapsed. This suggests that having relied on a misrepresentation, the misled party has the onus to discover the truth “within a reasonable time”. In Doyle v Olby [1969], a party misled by a fraudulent misrepresentation was deemed NOT to have affirmed even after more than a year.

What are the defences to this tort?

There is only one defence to the tort — justification — and its boundaries are ill-defined. The defence is circumscribed — “in a society which values the rule of law, occasions, when a legal right may be violated with impunity, ought not to be frequent” — and highly fact-specific. Relevant factors may include the nature of the breached contract, the position of the parties, the grounds for the breach and the method in which the breach was procured. In one eye-catching case, the defence succeeded where union officials persuaded a theatre manager to breach his contract because the company’s salaries were so low “some chorus girls were compelled to resort to prostitution”. The High Court delivered an extensive consideration of the defence in 2004 in Zhu v Treasurer of New South Wales. A company contracted with the appellant to market the 2000 Sydney Olympics in China but was then induced by the local organising committee to breach the contract on the grounds that it was inconsistent with overarching contractual undertakings relating to the Games’ hosting. The Court rejected the defence, holding an inconsistent contractual obligation is insufficient, although proprietary or statutory rights may satisfy the justification test.

What are the remedies to this tort?

There are two available remedies if the tort is proven:

damages

injunctions.

Although a contract claim would generally also lie against the infringing party, the outcome via tort can be more appealing — for both practical reasons (the third party may be wealthier than the infringing party) and legal considerations. Damages in tort “may be more extensive” than their contractual equivalent, with a much more liberal remoteness test and the absence of a strict duty to mitigate. In an extreme case, exceptional damage may even be available through the tort. Additionally or alternatively, an injunction may issue to prevent the respondent from continuing to induce non-performance of the contract. The usual equitable requirements are applicable where an injunction is sought.

Conclusion

The growth of business and commercial relations in the twentieth century has caused common law and civil law jurisdictions to recognize a cause of action to induce breach of contract, thereby providing better security for contracts.

The Tort of Nuisance – Public and Private

Introduction

Nuisance is an injury to the right of a person’s possession of his property to undisturbed enjoyment of it and results from an improper usage by another individual.

Definitions by various Thinkers

According to Stephen, nuisance is anything done to the hurt or annoyance of the tenements of another, or of the lands, one which doesn’t amount to trespass.

Essential elements of Nuisance

Wrongful act

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

Damage or loss or annoyance caused to another individual

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

Kinds of Nuisance

1. Public Nuisance

Instances where an individual may have a private right of action in respect to a public nuisance:

He must show the existence of any personal injury which is of a higher degree than the rest of the public.

Such an injury has to be direct and not just a consequential injury.

The injury must be shown to have a huge effect.

2. Private Nuisance

Elements which constitute a private nuisance

The interference must be unreasonable or unlawful. It is meant that the act should not be justifiable in the eyes of the law and should be by an act which no reasonable man would do.

Such interference has to be with the use or enjoyment of land, or of some rights over the property, or it should be in connection with the property or physical discomfort.

There should be seeable damage to the property or with the enjoyment of the property in order to constitute a private nuisance.

Case Law: Rose v. Miles(1815) 4M &S. 101

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

1. Property

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

2. Physical discomfort

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

In excess of the natural and ordinary course of enjoyment of the property.

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

Interfering with the ordinary conduct of human existence.

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

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

What are the defences available to Nuisance?

There are many valid defences available to an action for tort, these are:

1. Prescription

A prescription is a title acquired by use and time and which is allowed by the law, a person claims any property because his ancestors have had the possession of the property by law.

The essence of prescription is explained in Section 26 of the limitations act and Section 15 of the Easements Act.

There are three essentials to establish a person’s right by prescription, these are

Use or enjoyment of the property: The use or enjoyment of the property must be acquired by the individual by law and the use or enjoyment must be done openly and peacefully.

Identity of the thing/property enjoyed: The individual should be aware of the identity of thing or property which he or she is peacefully or publically enjoying.

2. Statutory authority

The statutory authority may be either absolute or conditional.

When there is an absolute authority, the statue allows the act and it is not necessary that the act must cause a nuisance or any other form of injury.

Whereas in the case where there is a conditional authority, the state allows the act to be done only if it can be done without any causation of nuisance or any other form of injury.

What are the remedies for nuisance?

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

1. Injunction

2. Damages

3. Abatement

Nuisance and Trespass – Distinguished

Trespass is actionable per se (actions which do not require allegations or proof), whereas, in the case of a nuisance, only the proof of actual damage to the property is required.

Example: Planting a tree on someone else’s land would amount to trespass whereas if a person plants a tree on their own land which then outgrows to the land of another would amount to a nuisance.

Case Law: Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitra Mandal AIR 1978 Guj 13, (1977) GLR 424.

Conclusion

The Concept of Absolute Liability

Introduction to Absolute Liability

The concept of absolute liability evolved in India after the case of M.C Mehta vs Union of India[1] famously known as Oleum Gas Leak case. This is one of the historic cases in the Indian Judiciary. The case of M.C Mehta is based on the principle of strict liability but with no exception were given and the individual is made absolutely liable for his acts. It is based under this principle that the defendant won’t be allowed to plead defence if he/she was at fault as it was laid down in Ryland vs Fletcher case. After the Bhopal gas leak case many people lost their lives and are suffering from some of the fatal diseases through the generation and because of this there was an urgent need to develop a rule under strict liability which had no exceptions available to the defendant to escape from the liability.

The rule laid down by the Honourable Supreme Court of India is much wider with respect to the rules laid down the House of Lords in the case of Ryland vs Fletcher. It was propounded by the Supreme Court that where an enterprise is engaged in a hazardous or inherently dangerous activity and if any harm results to anybody on account of the accident in operation, the enterprise would be held strictly and absolutely liable to compensate to all those who are affected by the accident.

Essential Elements of Absolute Liability

The essential elements of absolute liability are-

Dangerous Thing– As per the rules laid down, the liability of escape of a thing from an individual’s land will arise only when the thing which is collected is a dangerous thing that is a thing which likely causes damage or injury to other people in person or their property on its escape. In various torts cases which have happened all over the world, the doctrine of strict liability has held a large body of water, gas, electricity, vibrations, sewage, flag-pole, explosives, noxious fumes, rusty wires etc are certain things which come under the ambit of dangerous things.

Escape– Anything which has caused damage or mischief should have escaped from the area which was under the control of the defendant to come under the ambit of absolute liability. Like it happened in the case of Read vs Lyons and Co.[2] where the plaintiff was working as an employee in the defendant’s company which was engaged in manufacturing shells. The accident happened while she was on her duty that day within the company’s premise. It happened when a piece which was being manufactured there exploded and due to which the plaintiff suffered harm. After this incident and a case was filed against the defendant’s company but the court eventually let go the defendant and gave the verdict that strict liability is not applicable here in this particular case. This was declared by the court because the explosion that took place was within the defendant’s premises and not outside. And the concept says that it should have escaped the dangerous thing like shell here from the boundaries of the defendant premise which didn’t happen and was missing over here. So, the negligence on the part of the defendant could not be proved in the court.

Non-natural use of land– Water collected on land for domestic purposes does not amount to non-natural use of land but if one is storing it in large quantities like in a reservoir as it was the case in Ryland vs Fletcher[3] then it amounts to non-natural use of land. The difference between natural and non-natural use of land by keeping in mind the surrounding social conditions. As the growing of trees and plants on land is considered as a natural use of land but if one starts growing trees which are poisonous in nature then it will be considered as non-natural use of land. If an issue arises between the defendant and the plaintiff even though the defendant is using the land naturally, the court will not hold the defendant liable for his conduct.

Mischief- To make the person liable under this principle, the plaintiff at first needs to show that the defendant had done the non-natural use of land and escaped the dangerous thing which he has on his land which resulted in the injury further. In the case of Charing Cross Electric Supply Co. vs Hydraulic Power Co.[4], the defendant was assigned to supply water for industrial works. But he was unable to keep their mains charged with a minimum pressure that was required which led to the bursting of the pipeline at different places. This resulted in causing heavy damage to the plaintiff which was proved in the court of law. The defendants were held liable in spite of this that they were not at fault. These are the few rules where this doctrine is applied.

Scope of Rule of Absolute Liability

In most of the places, the rule of strict liability and absolute liability are seen as exceptions in the law. And the individual is held liable only when he/she is at fault. But, in such cases, the individual could be held guilty even if he is not at fault. After the catastrophic accident of Oleum Gas Leak case the act of The Public Liability Insurance Act, 1991 was introduced with the main purpose of providing immediate relief to people who are victims of the accident in which handling of hazardous substances is involved. The agenda behind this act was that the act will create a public liability insurance fund which will eventually be used for the purpose of compensating the victims. Hazardous Substance under this act is defined as any substance which by reason of its chemical or any properties is liable to cause any damage to human beings, other living creature, plants, microorganism, property or to the environment. The term handling is described in section 2(c) of the Public Liability Insurance Act,1991 which is the clear expression of the rule of absolute liability laid down in M.C Mehta vs Union of India.

Is Strict Liability and Absolute Liability the Same Thing?

No, strict liability and absolute liability are not the same things and are different. As in strict liability, the defendant has a chance to escape the liability after causing the damage and injury whereas under absolute liability this is not the case as the defendant is held absolutely liable for his acts. This means that even if both the rules come up for giving punishments to the wrongdoer who has caused injury and by dealing with hazardous substance without proper care and caution but they would differ in cases of providing relaxation.

As in strict liability, there are some defences which are available to the wrong-doer but in of absolute liability, there are no defences available and given to the defendant. It was even declared by the courts that absolute liability could even be upheld in case of single death and there is no need for any mass destruction or pollution done to the environment.

By analysing the need to modify the 19th century rule of strict liability the apex court in M.C Mehta vs Union of India stated that “Moreover that the principle which was established in Ryland vs Fletcher’s case cannot be applied in the modern world because the rule was laid down in the old world as compared to the one laid down in the modern world which is period of industrial revolution and this principle is two century’s old which can’t be adopted without the modifications being made into it. The main aim is to limit the scope of the rule and bring it at the same level as the modern theory.

Evolution of absolute liability

The rule of absolute liability has evolved as a result of the old rule and it can’t be applied in Indian Law Perspective as it is inappropriate for the reason because its evolution is because of high industrial growth, agricultural use of land etc. We all know that India is a developing country and with that, it is a developing economy too and the doctrine of strict liability is a very old principle. The old rule evolved when there was low or limited scope for industrial development compared to today’s scenario which high in industrial growth in the country.

ABSOLUTE LIABILITY = (STRICT LIABILITY- EXCEPTIONS)

The scope of the rule of absolute liability is very wide in all its aspects when compared with the old rule. As it does not have any exception laid under it in the new rule. Not only it covers public negligence or fault but it also covers even the personal injuries caused due to the misconduct of the neighbour. Now it covers not only the one who occupies the land but also makes people liable who is not the owner of the land. Absolute Liability has been brought up in the case of M.C Mehta vs Union of India[5] also this is one of the landmark judgement in India’s legal history. The rule which was laid down after this case was that any enterprise which is engaged in any kind of hazardous or inherently dangerous material which if there might result in any kind of harm then the enterprise would be absolutely liable to compensate to all the people who are affected by the same as it also happened in Bhopal Gas Tragedy case.

The facts of the case go on like this that in the city of Delhi in 1985, there was severe leakage of oleum gas in the month of December 1985. This incident took place in one of the units of Shriram Foods and Fertilizers Industries which belonged to the Delhi Cloth Mills Ltd. and as a result of this accident an advocate in the Tis Hazari Court had died because of the poisonous fumes and many others were severely harmed. This incident led to the filing of PIL (Public Interest Litigation) in the courts in India.

PIL is filed by a group of individual or by any person in the supreme court or high court of India. PIL is the tool to armour public interest and this instrument is brought by the court, not by the aggrieved party. But is brought in by the court of law or by any private party other than the aggrieved person in the society. It was in SP Gupta vs Union of India [6] that the Supreme Court of India has defined the term PIL in its elaborate form. The traditional rule of “locus standi” that held that a person whose right is infringed alone could file a PIL, has now been removed by the Supreme Court in its decision over the period of time like as declared in Badhua Mukti Morcha vs Union of India[7], Parmanand Katara vs Union of India[8] and many more. Now any public-spirited citizen has all the rights and can approach the court for the public cause by filing a PIL in the Supreme Court of India under article 32 and High Court under article 226 or even could be filed by approaching the Court of Magistrate under section 133 of CrPC.

For example, a construction company was constructing highways as per the orders and for doing

this it has to blast rocks with dynamite. The company carried out this activity with extra precaution and care and in spite of this, some fragments of rock had flown and damaged the neighbouring houses. As a result of this, the owner of the house sued the company for the damage they had caused by their Act. But, the corporation raised an argument in the court that they cannot be sued because they are free from the fault but this was not upheld by the court and they were held absolutely liable for their wrongful acts and it is no defence that they took extra care and precautions to prevent the harm which had caused.

A tort is a civil wrong for which the remedy is an action taken by law for the unliquidated damage and which is not exclusively breach of any contract or promise or any other kind of obligations. There are principles in law which only holds a person liable when he/she is at fault whereas in certain principles the individual is held liable without him being at fault. This is the ‘no-fault liability principle’ This no-fault liability principle has two main landmark judgements Ryland vs Fletcher (strict liability) and MC Mehta vs Union of India[10]. In both these cases the individual was made liable even though he was not responsible for the damage caused.

References

[1] AIR 1987 S.C 1086

[2] (1947) A.C. 156

[3] (1868)

[4] (1914) 3 KB 772

[5] AIR 1987 S.C 1086

[6] AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365

[7] (1997) 10 SCC 549

[8] 1989 AIR 2039, 1989 SCR (3) 997

[9] (1868)

[10] AIR 1987 S.C 1086

Constitutional Tort

Introduction

Vicarious liability is the liability that lies upon a person for an act done by someone else. It comes into play often in master-servant relationships. Constitutional Tort is generally a judicial instrument by which the state can be held vicariously liable for the acts of its servants.

It’s the legal action to get legal remedy in the form of damages when any of the constitutional rights are violated.[1] The only exception lying is that it cannot be made liable if the act is done in exercise of sovereign (government) functions.

The origin of Constitutional law may be traced back to the time when the common medieval saying of “Res Non-Potest Peccare” i.e. ‘the king can do no wrong’ (as the king was considered the son of God) started losing its acceptance in the eyes of the public. After the 18th century, with the advent and emergence of new democracies and industries, it became important to take acts done with state’s authority under judicial scrutiny so that, those who suffered from such acts may get justice in due course.

Evolution in India

As there is no legislation which specifies the vicarious liability of the state for the torts committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from.

Art. 300 gives the right to the public to sue the state. While it came into force after the implementation of the Constitution in 1950, similar provisions were also there in Government of India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.” [2]

As the Government succeeded the company in administration i.e. East Indian Company, the liability of the government similar as it was with the company before 1858.

Article 300

Suits and Proceedings [3]

(1) The Governor of India may sue or be sued by the name of the Union 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 the 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.

(2) If at the commencement of this Constitution,

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.

A general reading of part 1 of the Article tells about suing the state and other dominions by their name in the same way as they have been if the constitution had not been enacted. Part 2 talks about pending legal proceedings against the state and provides to substitute dominion of India with Union of India and province with Indian State respectively in clauses (a) and (b).

Landmark judgements on Constitutional Tort

P & O Navigation Company v Secretary of State for India– This was the first case in which the Sovereign immunity of the state was debated. There was a piece of a funnel made up of iron which was being carried by some workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven carriage. Plaintiff sued the Govt. for damages due to negligence on the part of the servants employed by the govt.

Held- “The Government cannot be held liable when the injuries are caused while carrying out sovereign functions but is liable when the acts of the servants are non-sovereign functions”.

Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded for damages for refusal of Government to give him licence to sell liquor and drugs, it was held that it was out of sovereign functions of the state and thus, is out of reach of tortious liability. Since this decision, the distinction between sovereign and non-sovereign functions is the foremost criteria that are looked into by the courts in their judgements.

Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a pedestrian who eventually died of an accident. The plea of Sovereign immunity was rejected but it was held that the government cannot be held liable for the “Act of State” under Article 300. Compensation of Rs. 15000 was given. The Hon’ble Supreme Court stated that “in the modern era, the liability of State is not limited to Sovereign functions, but is socialistic and is related to the welfare of the people and thus, the old immunity of State functions is irrelevant”.

Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the Plaintiff. The head constable later misappropriated the gold and flew with it to Pakistan. The Court did not take account of the judgement in Vidyawati case and ruled in favour of the State stating that the act was sovereign in nature. It was held that the law established in P & O Navigation is still good law. The court was not pleased as it could help the Plaintiff with its ruling. Through this judgement, in addition to disapproving the law in Vidyawati, it was also added by the Court that the state is not liable when the tort is done in statutory power by its servants.

N. Nagendra Rao v State of Andhra Pradesh– It was held that the ratio of Kasturi Lal is applicable in rare cases only where the statutory authority to carry out certain functions are delegated. In any civil society, the state cannot be allowed to play with the rights of the citizens and take the plea of sovereign function and thus, it cannot be treated above and against the rule of law.

Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the foundation of new reasoning in matters involving constitutional tort and compensation. In this case, the plaintiff who has been denied his pension, without much discussion, was allowed to recover exemplary damages of Rs. 25000 for being harassed by the defendant deliberately.

Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state for his illegal imprisonment for 14 years and asked for compensation and rehabilitation cost. The question presented before the Apex court was whether the court can award monetary damages under its jurisdiction as given in Article 32 or not.

The court gave the answer in affirmative by stating that monetary damages under article 32 may be granted and thus gave a judgement that proved to be a giant leap in the cases involving both constitutional tort and compensation.

The judgement formulated two landmark rules by holding that:

Civil liability can arise when constitutional rights are violated.

Civil liability can also emerge when there is a violation of personal liberty.

Saheli v Commissioner of Police– In this judgement, the ratio in Vidyawati was revisited and upheld by its application. When a child died by police assault and beating, the compensation of Rs. 75000 was granted and the Delhi Administration was allowed to recover the same from the officials which were responsible for the incident.

Common Cause, A registered society v Union of India– In this judgement, the court ruled that when there is a violation of fundamental rights of the person, the remedy for him is available under public law despite the fact that there is an optional remedy in private law also. The distinction between damages and remedies given in private and public law were evaluated and this judgement opened the way for the development and growth of public law torts increasing State’s liability.

Growth of remedy under Constitutional Tort

The principle established in Rudal Shah established and crystallized the concept of constitutional torts. The court did not follow a rapid formulation of law but instead stick to the case by the case evolution as per the need. In Sebastian Hongray v Union of India, when two persons whisked away by the Sikh regiment were found missing, a writ petition of habeas corpus was filed by a JNU student under Article 22. The court issued a command to the respondents i.e. UOI, State of Manipur and Commandant, Sikh Regiment. In the events followed in the course of the inquiry, the Court discovered that the respondents misled the inquiry and committed wilful disobedience. In the subsequent judgement, the Court awarded the exemplary damage of 1 lakh each to the wives of both the individuals who had disappeared after they were taken into custody, ignoring the common consequences of imprisonment and fine in such circumstances.

The doctrine of constitutional tort has grown in many steps. Some of the established principles are as follows:

1. Doctrine to Entertain Appropriate Cases

The court in Bhim Singh v State of J & K states that the court will entertain only appropriate cases but it did not elaborate more on the qualification criteria for a case to be called as an appropriate case. The case was related to the illegal detention of an MLA so that he cannot attend the proceedings of the house. His wife filed a writ of habeas corpus under Article 32 of the constitution.

The decision of detention was held violative of Article 21 along with Article 22 (1). Although at the time of judgement the MLA was free, still the court chose to grant exemplary damage by monetarily compensating. The court observed, “when a person comes to us for the remedy for violation of his constitutional and legal rights, and the court finds it as an appropriate case, it may award exemplary damages”.And, the court awarded Rs. 50000 to Bhim Singh.

The trinity of cases i.e. Rudal Shah, Sebastian Hongray and Bhim Singh ensured state’s liability for compensating a person who is illegally detained by it thus, violating his right to life and personal liberty.

In MC Mehta, there was a reiteration of appropriate cases doctrine but in more elaborative manner, the court stated that “an appropriate case may be considered as a case when there is a gross and potent infringement of a person’s right in a manner whose magnitude may shock the court”. In addition, it was stated, “the decision of qualification of a case as appropriate or not is inclusive and not conclusive and the court is free to decide on the question based on the facts and circumstances of each case separately based on its merit”.

The role of High Courts in awarding compensation was recognised by the Apex Court in the case of State of Maharashtra v Ravi Kant S Patil where a person was paraded on the street with handcuffs without any justification, the Court awarded compensation of Rs. 10000 by the police officer himself and directed the government to make an entry into the policemen’s service record that he violated a person’s right without any valid justification. However, in appeal, the Apex Court upheld the judgement but ordered the government to compensate instead of compensation from the officer himself and also directed to avoid making an entry in the official records. This was a contrary step from the law in Saheli v Commissioner of Police when the recovery was allowed by the officer himself. However, in this case, HC’s role under Article 226 for providing compensation was recognised and helped the High Courts to enjoy the authority vested in them for providing damages in future.

2. Constitutional Tort and the end to Sovereign Immunity

Although, with the cases like Bhim Singh and Rudal Shah the law of constitutional tort was evolving, the Courts did not take recourse to the law in Kasturi Lal. The decision in Kasturi Lal was neither reiterated nor overruled.

The claim of damages in every case of infringement of fundamental rights was obvious in every judgement, but there was no refinement of the doctrine of fixing the liability or dealing with the provision of remedy. There was a demand by legal scholars that unless the law in Kasturi Lal is discussed, the arrangement of providing compensation in breach of fundamental right will only be understood as a provision on an ad-hoc basis.

The Hon’ble SC in the case of Nilabati Behera v State of Orissa clarified the law after passage of one decade of judgement in Rudal Shah. Nilabati Behera was a case which came before SC through PIL and was related to the custodial death of a 22-year-old boy whose body was discovered lying on the railway track on the day after he was sent for police custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the victim. In addition, there were many observations made by the court. Some of those are as follows:

The Court clarified the observations in Rudal Shah that “a remedy under Article 32 or 226 may be denied if the claim presented before the court is controversial in facts and that monetary claims are allowed under Article 32 and 226”. The Court stated, “the remedy under both the articles is precise and available in all the cases distinctively, in addition to an alternate remedy, if there is a violation of fundamental right”.

The liability under private law and liability of state under violation of fundamental rights by the State was distinguished and the Court observed “even though the defence of sovereign immunity and exceptions to strict liability may apply in cases dealing under private law, they are not applicable when the case is relating to infringement of rights by the State under public law. The award of compensation is a recognised remedy under Article 32 and 226 and the Court must remember the distinction while entertaining both types of cases”.

The provision of compensation from the State in the event of an infringement of fundamental rights is an inherent remedy under the constitution. The question of sovereign immunity is not even a question to ask by the State to prevent itself from providing damages to the victim and is alien to the idea of guaranteeing fundamental rights to every citizen of the country.

In addition, it is the only practical mode available for remedying the victim and thus it provides a justification for exemplary damages in monetary form. The court further stated, “the enforcement of fundamental rights by taking recourse to the provision under Article 32 and 226 is the law in Rudal Shah and thus, it provides a basis for subsequent decisions”.

Even though in the majority of cases which deal with constitution tort, the remedy has been provided for infringement of article 20 and 21, there are some exceptions too. In the cases of Assam Sillimite Ltd. v. India and Gajanan Vishweshwar Birjur v. India, there was a violation of other fundamental rights.

In Assam Sillimite case, the compensation was provided for infringement of article 19(1)(g). The dispute was over the cancellation of the lease without giving any chance of hearing. The act was also not in line with the principle of natural justice.

In Gajanan Vishweshwar case, the honourable Supreme Court quashed the order of seizure of some books, when the concerned authority was not able to provide a satisfactory answer on grounds of confiscation under section 111 of the Customs Act. Rs. 10000 was awarded as compensation as the act of administration was held to be resulting in violation of petitioner’s right under article 19 (1)(a) of the Indian Constitution.

3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)

Supreme court faced heavy criticism for awarding damages under article 32 but not under article 136. It was argued that a plea for compensation under article 136, if not higher in merit, is at equal footing with that of article 32.

However, this was not always a case. In State of Haryana v Smt. Santra, when the sterilization failed and the woman gave birth to a baby, the suit for compensation was allowed as an SLP and the Supreme Court rejected the defence of sovereign immunity.

The Court held ” the contention regarding vicarious liability of the doctor of the government hospital cannot be accepted as a case of negligence on the part of the doctor only. As the operation was done in a government hospital, the theory of sovereign immunity is not applicable”.

The court also referred to the cases of N. Nagendra Rao v Union of India, Common Cause, and Achutrao Khodwa which was related to sterilization operation.

4. Defence of Sovereign immunity in Civil Law Proceedings

The apex Court differentiated the remedy under public law, civil law and private law in the landmark judgement of Nilabeti Behera. It was concluded that although the defence of sovereign immunity applies to cases of private law such as tort, it does not apply to compensation resulting under Articles 32 and 226.

The case of C. Ramakonda Reddy v State of AP may be considered as a landmark judgement in this regard. The High Court of Andhra Pradesh pronounced a highly prognostic verdict in this case which was later affirmed by the Supreme Court. In this case, due to the negligence of the prison authority, one of the accused died due to the entry of an outsider into the jail premises which planted a bomb in order to kill the deceased, one of the accused person.

The incident took place due to misfeasance and malfeasance of the defendants i.e. the State. The damage to the plaintiff was calculated to be Rs. 10 lakhs. Subsequently, the State denied its liability and contended that it is not to be sued for its sovereign functions which were, in this case, the maintenance of the jail. The judgement was declared in State’s favour.

In the appeal, the HC observed, “the right to life cannot be defeated by the archaic defence of sovereign functions and when the person is denied his right to life and liberty, it is not a valid argument that the deprivation was due to the state carrying out its sovereign functions.”

Observing the facts, the Court awarded the compensation of Rs. 1.44 lakh and stated that it is the only way to enforce Article 21 in such cases. On the later stage, the judgement of the High Court was affirmed by the Apex Court and the appeal was dismissed.

5. Supreme Court’s approach on Constitutional Tort Issues

The Apex Court always took recourse to the extent of enforcement of fundamental rights in order to answer on the remedy for the constitutional tort. The analysis was divided on the substantive basis of the compensation if there is a gross violation of the fundamental rights. As Chief Justice of the United States John Marshall remarked ” the Government of the United States has been always witnessed as the government of laws and not of man”, in India also the same was the case when the government’s using constitutional provisions and by applying the defence of sovereign immunity kept on violating the fundamental rights.

The court in Rudal Shah opined ” the plaintiff has the right to compensation if there is a violation of their fundamental rights along with penalizing the authorities which acting in the name of public interest, use their powers as a shield to prevent themselves from scrutiny.

At a later stage, after awarding compensation in Devki Nandan case for deliberate and motivated harassment of the plaintiff, the court established the doctrine of appropriate cases in Sebastian Hungry and Bhim Singh. Subsequently, in MC Mehta, the complete doctrine of Constitutional Tort was established along with the introduction of deep pocket theory.

However, due to the sole focus of law formation on public law and judicial pronouncements, it is hard to find a jurisprudence of further developments. Thus, there was an attempt to incorporate a separate clause under Article 13 as 13A coming just before the fundamental rights dealing with the right to compensation for violation of fundamental rights. It was suggested that this will help in increasing the liability and act in consonance with Article 32.

Ultimately, the award of damages by the hands of the judiciary is indeed a creative concept introduced in India but fails at certain stages due to the absence of well-defined criteria.

Conclusion

While concluding, it may be stated that the doctrine of Constitutional Tort is a creative jurisprudence evolved by the Courts in spite of the fact that the criteria employed had faced various criticism in the past. The Apex Court must evolve a scientific criterion for future cases. The “voting right model” of the United States may be adopted for measuring the damages in Constitutional Tort actions to prevent the victim from a legal injury to their rights.

Tort Law and Environment

Introduction

Tort law and environmental harms due to pollution are interrelated with each other so closely that even today in spite of huge legal development, majority of all the cases relating to environmental harm comes under the ambit of four types of torts which are- Trespass, Nuisance, Strict Liability and Negligence.

In India, tort law comes into effect with the aid of Article 372(1) of the constitution which states that “all the laws which were in force before the independence, until repealed or replaced with new legislation by a competent authority, will not lose their existence and will remain in force within the territory of India”. In addition, it must be kept in mind that the State (both central and state govt.) can be sued by its name under Article 300 of Indian Constitution.

Background

The present Indian legal system is formulated on what is known as the Anglo-Indian Judicial system which in 1772, was adopted by Warren Hastings through judicial plans and became the base for later legal developments. Similarly, judges were advised to act on the ideals of “equity, justice and good conscience” in the absence of proper legislation or when there were loopholes in them. It was believed that these ideas were able to fill the gaps between the laws. Later after the codification of a number of laws, Common law was still dominating Indian laws and thus, even today when there is no codification of the law of torts, most of the precedents and rules of Common laws are followed in India.

Role of Torts in the protection of the environment

Before and after the development of torts in issues concerning environment damage, it was heavily debated that whether tort which is used for private remedy by providing damages can be employed in the prevention of environmental degradation? Stephan Shavell, a renowned professor and economist remarked that “Risk control measures and compensation goals are to be met separately but the case is different in torts where both can be harnessed simultaneously on equal footing and while considering environmental concerns, more efficient and better remedies are available as compared to torts”[1].

Tort means a civil wrong. In case when there is damage to the environment, it plays its role.

It is more focused on curing and awarding the damages rather than prevention and hence, it is helpful.

The environment and Earth’s biome is not personal property and hence one cannot claim reparations for its damage.

While it is considered that tort is more focused on harm rather than risk measurement, this concept is not fully true as in cases of negligence probability and foreseeability of risk is a key factor which is considered while seeking damages.

In tort, negligence generally reflects the fault of the defendant. The same applies to environment polluter based on the strict liability doctrine established in Rylands v. Fletcher.

When there is personal harm resulting from environmental destruction, the remedy can be sought.

Role of Indian judiciary in extending tortious liability in cases of environmental harm

In India, judicial activism and increase in environmental- tort litigation started with the catastrophe in Bhopal gas leak accident in which, due to the leak of poisonous MIC (Methyl Isocyanate) gas, millions of people suffered from a health problem and over 2,500 people died with the immediate poisonous effect of the gas. With such massive harm to the environment and human life, the doctrine of absolute liability began to evolve in India and finally evolved in the MC Mehta case.

Bhopal tragedy was an eye-opening accident for people with different backgrounds including state and central governments, media persons, litigators, social activists and even industrial managements also. After the tragic accident, a new feature was introduced in the Indian judicial system when people started linking tort with the environment and there was a growth in the concept of exemplary damages (heavier amount).

The new doctrine of absolute liability which developed after Bhopal Gas Tragedy is different from the English concept of strict liability that comes into effect with certain exceptions and defence such as plaintiff’s consent and his own fault or act of God etc. Whereas, there are no defences available to the defendant in cases relating to absolute liability.

Fully developed in MC Mehta v. Union Of India[2], absolute liability can be represented in the form of an equation as:

Absolute liability = Strict liability- exceptions/defences

In MC Mehta, there was a leak of poisonous oleum gas (H2O7S2) from Shriram food and fertilizers Ltd situated in Delhi. A new series of PIL initiated by Mahesh Chandra Mehta, a public interest attorney started. The court could have ordered to file a suit in the lower courts and ask for damages and compensation. But instead of doing so, it came up with a concrete doctrine of absolute liability so that the industrializing Indian economy may be able to deal with new challenges coming from harmful industries.

The court also gave Deep Pocket Theory of Compensation and Justice P N Bhagwati (later CJI) observed, “larger the enterprise or industry will be, larger will be the amount of compensation that will be paid if there is an inherently hazardous or dangerous activity is carried out” and a very wide interpretation of Art. 32 was formulated with the introduction of new rights and remedies.

The MC Mehta case opened new possibilities in tortious environment litigation and a new technique of issuing a direction under Art. 32 was invoked.

Consumer Education and Research Centre (CERC) v. Union of India[3]– Although the principle of absolute liability was not revisited but the court introduced new liabilities and stated, “the compensation given in case of damage is not limited to the workers with visible symptoms of the disease during the course of their employment but extends to those workers also who suffer from any disease after their retirement”. The court also showed the sign that in case of a violation of fundamental rights, directions under Art. 32 are not limited to the State but can be extended to other persons and company acting under any statutory power or license.

Indian Council for Enviro-legal action v. Union of India[4]– In this case upholding the judgement in MC Mehta, the court observed “the law needs to accommodate itself with the changing needs of the society especially in a country like India where economic and social transformation is a challenge due to rapid industrialization” and applied the polluter-pays’ principle. The court also observed that the newly developed principles of tortious liability are effective in PIL concerning environmental harm. The court stating the rationale of MC Mehta asked the government to ensure the remedy for the victims and directed the government to take necessary steps by levying a cost on the defendants if they fail to do so. Other important things that the Court stated were:

The court is competent to provide an instant and adequate remedy if there is a need.

The victim suffering any personal damage is not limited to the civil process. He can directly approach the court under Art. 32 of the constitution.

The court is concerned particularly about those harms which consist of both personal (human rights violation) and environmental damage. In such cases, those who are responsible for the act will be required to pay repair costs also.

The court is serious about shifting the line or parallel between the administrative process and adjudication.

There would be the creation of tribunals and committees to look into such socio-legal issues inflicting harm to both an individual and the environment.

Bandhua Mukti Morcha v. Union Of India[5]– This was a landmark judgement due to the fact that in this judgement the Hon’ble Supreme Court stated that “the power of the court under Article 32 which deals with right to constitutional remedies is not limited only with issuing directions, guidelines or writ to enforce fundamental rights but it puts an obligation on the Court to check whether the fundamental rights of the people are protected or not”.

This was also declared that for protecting the fundamental rights the court is vested with enormous power (both ancillary and incidental) and has the right to invent new types of remedies and strategies for fundamental rights’ enforcement.

MC Mehta v. Kamal Nath & Ors.[6]– In this judgement, the court put pollution in the category of civil wrong and stated that polluting the environment is a tort committed against the whole community. The Court was also of the view that “the person who is responsible for damaging the ecology and environment may be forced to pay exemplary damages also so that such award may prove as an example for others to prevent them from repeating the same mistake again”. However, the Court differentiated between fine and exemplary damage by saying that both are the results of different types of considerations. The Court restated that its powers are not limited and thus it can award damages through PIL’s and writs under Art. 32.

Why is there a lack of environmental-tort litigation in India?

Although the role of the Supreme Court in the evolution of environmental-tort is immense, there is still a lack of litigation in that field. While analysing the situation, there are many reasons that we find for such a void in tortious litigation. Some of these are as follows:

There is a lack of compatibility assessment between societal needs and law. Judges and litigators involve themselves into rigorous technicality over an issue rather than solving it simply as per societal needs.

Our Indian legal system fails to acknowledge public and civil remedies while trying cases on personal relationships in society.

There is a tendency growing in people of India to prefer mediation over such issues rather than going for litigation on similar lines with the Western world.

Litigation involves and demands a large amount of money, time and labour which people seek to avoid at any cost and even after going through the time-taking process, they are not assured that they are going to get remedy or not in such cases of torts.

The primitive (under grown) condition of substantive law on such points, especially on State’s vicarious liability for the act of its servants.

There is confusion created on the minds of lawyers due to availability of different types of laws on similar issues which acts as a hindrance in environmental-tort litigation.

The general public is unaware of the legal development on this point of law. They don’t know their rights and hence, do not seek remedy from the courts.

Due to the negligible codification of the law of tort, it is difficult to access the law.

Government employees and bureaucrats do not take recourse to the legitimate claims of the public. They are in habit of dissuading their claims even when they are aware that their claims are enforceable.

Conclusion

In the end, it may be said that, although there is a dearth of tort and especially environmental torts litigation in India, the recent developments in the past three decades have been satisfactory. After combining tort law with rights under the constitution and extending the enforcement under Art. 32, it is now easier for the general public to get a remedy when compared to the scenario before MC Mehta. Similarly, with the emergence of bodies like National Green Tribunal (NGT) and Forest Survey of India, keeping a check on the issues of environmental harms and degradation has become very efficient and works of these bodies are also helpful in increasing the awareness of the general public. Overall, the effectiveness of remedy with the advent of Deep-Pocket theory had revolutionized environment related to tort litigation in India.

References

[1] Stephan Shavell, “Economic Analysis of Accidental Law” (Harvard University Press, 1987), 279.

[2] AIR 1987 SC 1086.

[3] AIR 1995 SC 922.

[4] AIR 1996 SC 1466.

[5] (1984) 3 SC 161.

[6] AIR 2002 SC 1515.

Bhopal Gas Tragedy and Development of Environmental Law

Background of the Case

Bhopal Gas Tragedy was a deadly disaster which took place in Bhopal, India leaving behind thousands dead and thousands other maimed for life. This is considered as one of the most horrific and lethal industrial disasters.

On a 1984 winter night, the lethal Methyl isocyanate Gas (MIC) which leaked from the Union Carbide factory making it the worst industrial disaster which the world has ever seen. In the 1970s, the Indian government was encouraging foreign investment in local industries and for the same Union Carbide Corporation (UCC) was asked to build a plant in Bhopal for the manufacture of Sevin, which is a pesticide used commonly throughout Asia. The Government of India itself had a 22% stake in the company’s subsidiary Union Carbide India Ltd. (UCIL).

Due to its central location and transport infrastructure Bhopal was chosen for the establishment of the plant. Bhopal was the area zoned for light industrial use and not the heavy and hazardous ones. This plant was initially approved for just formulation of pesticides but due to the increasing competition, it started manufacturing other products under the same facility which involved more hazardous processes.

On Dec 2, 1984, a small leak of MIC gas was noticed. On the morning of 3rd Dec 1984, a plume of MIC gas was there in the air leading to deaths of thousands of people. According to an estimate, 3,800 people died immediately, out of which most were in poor slums adjacent to the plant. Estimated number of deaths in the first few days was more than 10,000 and reported 15,000 – 20,000 premature deaths in the next 2 decades. After the incident, UCC tried to deny being responsible for the incident by shifting the matter towards UCIL (Union Carbide India Ltd) by trying to make the point that the plant was fully built and operated by the Indian subsidiary that is UCIL.

In March 1985, the government enacted the Bhopal Gas Leak Disaster Act to ensure the dealing of claims arising after the incident speedily and equitably. This made the government as the only representative of the victims in the legal processes in and outside the country.

The settlement was made by Supreme Court of India with UCC in which UCC agreed to take the moral responsibility and paid a claim of $470 million to the government which was negligible compared to a multi-billion dollar lawsuit which was filed by an American lawyer in a U.S court. This amount of $470 million was based on the disputed claim that only 3,000 people died and 1,02,000 suffered permanent disabilities. According to Bhopal Gas Tragedy Relief and Rehabilitation Department, by the end of October 2003, compensation was awarded to 5,54,895 people for injuries received and 15,310 survivors of those killed.

After this settlement, the matter was placed entirely under Indian jurisdiction. The government was blamed for not having appropriate laws for environmental safety and for settlement of claims through the establishment of liability. If this kind of proper laws would have prevailed then the victims of the incident would have got better compensation and it would have been difficult for UCC to get off the matter.

As after the breathtaking tragedy, the Indian government passed and implemented The Environment Protection Act (E.P.A) of 1986 under Article 253 of the Indian constitution. Its purpose was to implement the decisions of the UN Conference on the Human Environment of 1972 to provide protection to an improvement of environment and prevention of hazards for humans, plants, other living creatures. This act strengthens the regulations on pollution control and environment protection by hazardous industries.

The act provides the Centre with a lot of power to take all necessary actions required for the protection of the environment. It enables the executive wing to issue notifications and orders which becomes guidelines for the administrative agencies. Basically, it provides the Centre with the power to make rules for environment protection. The act has 7 schedules specifically laying down the rules for emission or discharge of pollutants from industries, prescribing emission of smoke, etc. from vehicles, provides a list of authorities to be approached in case of any discharge outside the prescribed levels and standards.

Under the provision of Section 25 of EPA, 1986 another set of rules was passed “Hazardous Waste(Management and Handling) Rules, 1989”. It includes the management of 18 categories of waste basically all toxic chemicals which could be stored in industries and used for different purposes. Some categories of waste which are included in this are-metal finishing waste, waste containing water-soluble compounds of lead, copper, zinc, etc. It issues the notification that the one generating this type of wastes or the one operating the facility which generates this type of wastes is responsible for the proper management and handling of the waste.

The Environmental Impact Assessment Notification of 1994 includes almost all kinds of activities which could harm the environment in any way. Through this notification, an impact assessment of any project became mandatory. The Central Government is required to carry out an environmental impact assessment on a large scale before passing any project listed under the notification. It also established a “Right to Know”, that is, public hearing through which the common man who would get affected by the project is given the chance to speak out and is made aware of the project. Basically, a lot of transparency was included in the system for the validation of any developmental project.

The journey begins of legal principle cannot be easily understood through a case study of a very landmark case M.C. Mehta vs. Union of India.

The principle of “Absolute Liability” was established by Supreme Court after one more gas leak (though not a major one like Bhopal Gas Tragedy) in Shriram Fertilizer Factory in New Delhi on 4th Dec 1985, where the oleum gas was leaked from the bursting of the tank containing oleum gas which was caused by human and mechanical errors and not by any third party. This concept is of utmost importance today.

Bhopal Gas Tragedy was an incident which opened the eyes of the legislature and made their attention available to the environment and its protection. Even before this tragedy, laws such as Water Act of 1974 and Air Act of 1981 existed but EPA provides an umbrella to the Central Government for the coordination of various state and central authorities established under these previous laws. Therefore it would not be wrong to state that had the proper legislative framework would have existed then either this tragedy would not have occurred or the sufferings of the people could have been made less. The CEO of the accused UCC has died and the lawsuit against him has been shut down forever. Lack of proper and sufficient laws resulted in the loss of life of thousands of people and leaving behind many to suffer and live in pain of the after-effects of the tragedy.

Principle of Strict Liability

This principle was to develop from a well-known case of Ryland vs. Fletcher (1868 LR 3 HL 330). This case was decided by Lord Chancellor, Lord Cranworth and Lord Cairns.

Ryland was the plaintiff and Fletcher was the defendant in the case. Plaintiff was the occupier of the mine and defendant owes a mill in neighbour to the mine and they propose to make a reservoir to store water for the purpose to use in a mill and another adjacent land near to it. Defendant took the help of agents to construct the reservoir while making it.

They did not take reasonable care and precaution and due to the heavy weight of water, the shaft broke and the water passed into the mine of the plaintiff which cause damage to the plaintiff. While giving the final decision Lord Cairns distinguished between the natural and non-natural use of land.

Under Ryland case, the court declares it’s as Principle of “Strict Liability” rule. The Supreme Court got the chance to make this principle when a petition filed under Article 32 of the Constitution of India emerged into the form of PIL (Public Interest Litigation).

A very famous case of M.C. Mehta vs. Union of India was filed in the Court of law as a PIL for the incident which took place on 4th December to 6th December 1985, where Oleum gas was leaked from one of the Units of Shriram Food and Fertilizers in the area of Delhi and become famous by the name of Oleum Gas Leakage Case. During this accident, one of the advocates of Tis Hazari Court died and many others were also affected by it at a large number.

So, an environmental activist Mr M.C. Mehta approached Supreme Court of India and filed a PIL, so the court may take action on the matter and decide the liability and responsibility of the person for the incident.

During that period, the court was going across the most activist stage and denied to follow the ruling of Ryland vs. Fletcher case. Justice Bhagwati said that he cannot afford to evolve any type of guidance and any standard liability under constitutional norms. Law has been made to satisfy the needs of the rapid changing society and keep aside the development of the economy of the country.

All the industries which are set up in the residential locality and engaged in a hazardous toxic chemical which will affect the health and safety of the people of locality owe an absolute responsibility for the community to ensure them no harm or damage will be caused to them. The industries are under obligation to use the highest standard amount of equipment and machines to avoid damages to a large number of the population residing nearby. They should use a filter to avoid pollution.

Certain guidelines are given under Environmental law which needs to be followed by every industry which is engaged with the toxic and hazardous substances to avoid pollution. If they do not follow the guideline then their licence will be cancelled by the inspection team.

So, now we can easily distinguish between both the principles of Strict liability and Absolute Liability Strict liability is applicable to all the things which exist in a place but for absolute liability, things causing harm or damages and it must be in relation to Hazardous and toxic substance. So, on this note, the court has narrowed down the principle of strict liability.

But the more exciting and happening part of it is that the liability of the defendant become absolute in every manner. No matter what the damages will be caused due to the negligence on the part of the defendant, no matter how the hazardous item escaped, what the reason is but the consequences are to be faced by defendant only, once it is proved by the plaintiff side that the damage was caused by the defendant through hazardous item, no excuse will be applicable to it except the case of Act of God. Court laid down that measure will be taken to finalize the amount of compensation should be within the capacity of the enterprise.

The rule laid down under this case was approved by Court in Charan Lal Sahu Vs. Union of India, AIR 1990 SC 1480 where the court held that defendant has absolute liability for the act he cannot escape by saying that he took all the reasonable care on behalf of his part.

Yet in another case of Indian Council for Environmental Legal Action vs. Union of India AIR 1996 SC 1446 the court held that “Once the event is carried related to hazardous substance then is liable to take all the loss caused to another person irrespective of taking reasonable care while carrying out the activity.

Conclusion

After this act, the principle of absolute liability is given more emphasis and the Indian Judicial system took an affirmative step by adopting this principle. Bhopal Gas Tragedy was an event whose effect can still be seen in many newborn children who were born with abnormalities and it was very important to give direction to all the industries established near the residential area to take all the precaution and not to play with the precious lives of people.

References

Edward Broughton. The Bhopal disaster and its aftermath: a review

Sunita Narain, Chandra Bhushan. 30 years of Bhopal gas tragedy: a continuing disaster. Down to Earth

Medical Negligence

This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she discusses the meaning of medical negligence, the elements that constitute medical negligence, consequences of medical negligence, duties of a medical practitioner, rights of a patient, laws that affect the medical profession, defenses available for the medical practitioner and exemptions for medical negligence.

Introduction

An estimated number of 2,25,000 people died due to medical malpractice or negligence which varies from incorrect dosages and wrong diagnosis to surgical errors. Statistics show that nearly 12,000 people die per annum because of unnecessary surgery.

A study conducted by HealthGrades in 2002 found that an average of one lakh ninety-five thousand hospital deaths in America was because of medical errors which were potentially preventable. From 1990 to 2003, 8151 medical malpractice payment reports were made filed against doctors in Illinois. In the same period of time, 2570 medical malpractice reports were filed against physicians in Indiana and 1,012 medical malpractice reports were filed against medical professionalists in New Mexico.

The Journal of American Medical Association reports that 1,06,000 patients die per annum because of the negative result of their treatment or medication. The Institute of Medicine estimates that errors in providing or suggesting medications are the most common errors and 1.5 million people every year are suffering injury from these mistakes.

What is Medical Negligence?

Medical negligence is the misconduct by medical practitioners or doctors by not providing enough care and taking proper safeguards or measures resulting in the breach of their duties harming the patients. In Moni v. State of Kerala [1], it is mentioned that in the case of the medical practitioner, negligence way failure to act through the standards of moderately ready clinical men on the time. There may be one or more perfectly proper or reasonable standards of care, and if he conforms to one of these standards, then he is not negligent.

For example, if an accountant makes a mistake there will be a loss of money but if a doctor makes a mistake there is a threat of losing a life. A doctor is always expected to be perfect as the patients see the doctors as gods and believe them in the process of healing and the mistakes of doctors cost a life.

Medical negligence occurs because of improper, unskilled or negligent treatment provided to the patients. Medical negligence also known as medical malpractice occurs when the medical practitioners fail to perform their duty with the necessary amount of standard of care. Negligence is an offense under the law of torts, Indian Penal Code, Indian Contracts Act, Consumer Protection Act 1986 and many more.

What are the essentials or ingredients that constitute the Act of Medical Negligence?

Negligence is the breach of legal duty. For example, a producer of cold drink has to ensure the quality of the product he produces, in case if he fails it amounts to negligence. A medical practitioner or a doctor who possess knowledge and skills for the purpose of giving advice and providing treatment owes certain duties to his/her patients which were mentioned in the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr.[2] by the Supreme Court. The breach of any of these duties gives a right to the patient to bring an action for negligence. These duties are:

The duty or obligation of care in finding out whether to undertake a unique case or not.

The duty of care in deciding what therapy or treatment that a patient is to receive in a certain case.

The duty of care in administering the treatment properly.

Medical negligence is caused by lack of proper care or carelessness of the medical professionals during diagnosis, operations or while injecting anesthesia. The most common causes for medical negligence include lack of procedural safeguards, incorrect dosages, surgical errors, operation theatre contamination, blood transfusion contamination, mistreatment, wrong diagnosis, etc., which can be potentially prevented by taking a proper standard of care which is required.

Every medical professional or doctor has a duty of care towards their patients and when they commit a breach of this duty of care it causes injury to the patients and gives the patient’s right to bring an action against negligence. In the case of State of Haryana v. Smt Santra [3], the Supreme Court stated that each and every health practitioner has a responsibility to act with an affordable amount of care and skill.

What are the duties of a medical practitioner towards a patient?

The duties and responsibilities of a physician are prescribed in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002 made under Indian Medical Council Act, 1956.

Obligation to sick – A physician or medical practitioner won’t consistently be certain to deal with each individual who asks for his service but he should continuously be competent to reply to the calls of the ill and will have to be mindful of the high character of his mission or obligation and the accountability he discharges in the direction of his professional responsibilities. A doctor or clinical practitioner advising a patient to seek provider of an extra health practitioner is acceptable however in the case of an emergency, a health practitioner ought to deal with the sufferer. No health care professional shall immediately refuse to offer to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is suffering from an ailment which isn’t inside the range of expertise of the treating health practitioner.

Prognosis – The physician should never exaggerate or minimize the gravity of a patient’s condition or ailment. He will have to make certain himself that the sufferer, his family or his in charge buddies have such knowledge of the patient’s condition or sickness as it’s going to serve the nice pursuits of the patient and his/her loved ones.

Patience, Delicacy, and Secrecy – A physician must have patience and delicacy. The confidentiality about the details of the patient and his ailments need to be maintained by the physician. However, in a few cases, the physician may reveal about these matters if he feels that his duty towards the society or any particular person is more important. For example, if there is a new form of hazardous and transmitting disease than the confidentiality of the disease cannot be kept.

The Patient must not be neglected – A physician or a doctor is free to choose whom he will treat or serve but he should respond to any request or need for his assistance in case of an emergency. After undertaking a case, the health care professional must now not forget the sufferer and must no longer withdraw from the case without giving sufficient information to the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor should not willfully commit any act of negligence that may deprive his patient or patients of the required standard of medical care.

Engagement for an Obstetric case – When a physician who has been engaged to attend an obstetric case is absent or unavailable and another physician or doctor is sent for and delivery accomplished, the acting physician or doctor is entitled to get his professional fees, but should secure the patient’s acceptance or consent to resign on the arrival of the physician engaged.

Acts of Misconduct

Abuse of Professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.

Not taking the consent of Patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is required.

Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

What are the rights of the patients?

The Ministry of Health and Family Welfare (MoHFW) has released a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.

Right to know the information – Physicians or their qualified assistants are required to provide ample information about your sickness, its analysis (provisional or demonstrated, as it usually is), proposed investigation and feasible complications to the patient. If the sufferer will not be in a state to recognize this, the health care provider or their assistant is required to furnish the information to the caretaker. This has to be accomplished in a simple language that the patient or caretaker will appreciate. Apart from this, sufferers have the right to grasp the identity and respectable repute of every medical professional and assistant as good as the major health practitioner who’s treating them. Expertise concerning bills of medication wants to be given in writing.

Right to see and check records and reports related to their ailment – Patients or their respective caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents, and investigation studies. Investigation experiences must be made to be had to them within 24 hours of admission or seventy-two hours of discharge. The hospital is accountable for providing a discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of the sufferer with customary copies of investigations.

Right to receive medical care during an emergency – In the case of an emergency, you can avail hospital treatment in any executive or confidential health facility. Underneath Article 21 of the structure, which ensures that every person has the proper right to life and private liberty, you have got proper right to prompt emergency care with the aid of medical professionals without compromise on the standards of care, safeguard and without needing to pay full or an advanced cost to the health center.

Right to give informed consent – If a hospital decides upon carrying an invasive investigation or surgery or chemotherapy on a patient, they require to do so after finishing a correct policy system. The general practitioner specifically in control of a patient has to provide an explanation for the risks, consequences, and process of the investigation or surgery in the element and an easy language before supplying the protocol consent type to the sufferer or to the responsible caretaker.

Right to have confidentiality, human dignity and privacy related to their ailment – Now this one is a particularly identified right, mainly for those who follow television suggests about hospitals or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the ailment and medication plan for the patient in strict confidentiality from all people besides the patient and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest of shielding others or because of public well-being issues. Within the case of a feminine patient, she has the proper to demand the presence of another girl if the clinical practitioner checking or treating her is male. Having stated this, the medical institution is accountable for upholding the respect of every patient, irrespective of their gender.

Right not to be discriminated on any basis regarding medical care – This point brings us to the rights of a patient being upheld without discrimination established on their ailment, situation, HIV reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or geographical or social origins. Headquartered on the above traits, no person may also be subjected to discriminatory treatment, and the employees of the clinic are liable for ensuring this.

Right to safety and quality care according to standards of required medical care – There is a list of provisions that come under the list of quality care standards. This includes Safety and security, Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare that abides by the latest standards, norms, and guidelines under the National Accreditation Board for Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of medical ethics and the right to seek redressal by patient or caretakers.

Right to choose or select any alternative treatment to cure their ailment if options are available – Hospital employees and medical professionals are dependable for clarifying all cure choices to the sufferer/caretakers. After a radical gain knowledge of their alternatives, the patient/caretakers can prefer to select a cure that will or is probably not the surgeon’s main recommendation. This also signifies that once the patient/caretakers prefer this substitute healing, they’re going to shoulder the accountability of its consequences.

Right to have transparency in the cost of the treatment and care according to the prescribed cost whenever relevant – As acknowledged, the patient has the correct to have a written account of the costs they’ll have to endure for the remedy they’re receiving. As evidence for this, hospitals are required to have printed brochures and distinguished display boards bearing the names and rates of clinical tactics which can be to be had with them. Particular schedules of key charges need to be displayed in conspicuous places and must be in both, English as good as the neighborhood language. Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of the countrywide Pharmaceutical Pricing Authority (NPPA) and other imperative authorities. Patients have the right to acquire health care offerings that fee inside the variety prescribed through the critical and State governments, on the time of receiving it.

Right to choose or select the source for buying medicines or doing tests – As a patient or a caretaker, you’ve gotten the correct to decide upon which registered pharmacy you want to purchase your scientific provides from. This also entails getting an investigation system (like a blood experiment, for illustration) from any diagnostic center or laboratory registered beneath the national Accreditation Board for Laboratories (NABL).

Right to choose or select proper referral and transfer, which is free from contradictory commercial influences – If a patient must be transferred from one healthcare center to one other, a right and unique justification need to take delivery of to them/caretakers along with various options of the brand new healthcare center. They have got to additionally take delivery of a record of cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken unless the patient or their caretaker be given it. Understand that, these selections are not able to be influenced by factors like “kickbacks, commissions, incentives, or other perverse trade practices.”

Right to protection for the patients who are involved in the clinical trials – Consistent with the Ministry of Health and Family Welfare (MoHFW), “All scientific trials need to be carried out in compliance with the protocols and good scientific apply recommendations issued through services, Govt. Of India as good as all applicable statutory provisions of Amended drugs and Cosmetics Act, 1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate basic of wellness.” These aspects incorporate consent through the sufferer, written prescription of medicinal drugs or intervention, privacy, and many others.

Right to protection of participants who are involved in biomedical and health research – In case a patient is involved in a biomedical or health study system, their consent wishes to be taken in a written format. Their correct to dignity, privateness, and confidentiality wants to be upheld even for the period of the research. If the participant suffers direct bodily, psychological, social, legal or financial damage, they are eligible for financial or other help by using the medical institution. Anything advantages the hospital gets from the study need to be made to be had to valuable individuals, communities and the overall populace.

Right to be discharged or right to receive or take the body of a deceased person from the hospital – “A patient has the right to be discharged and cannot be detained in a hospital, on procedural grounds such as a dispute in payment of hospital charges. Similarly, caretakers have the right to the dead body of a patient who had been treated in a hospital, and the dead body cannot be detailed on procedural grounds, including non-payment/dispute regarding payment of hospital charges against wishes of the caretakers,” says the Ministry of Health and Family Welfare (MoHFW).

Right to get the education that a patient requires to know about his ailment or disease – There’s a list of things that a sufferer wants to be advised about by the medical institution. These have got to be addressed within the language that the sufferer/caretaker knows. This entails main details about their, healthy living practices, their rights and responsibilities, well-being coverage schemes significant to them, relevant entitlements (for charitable hospitals)and how to search redressal of grievances.

Right to be heard and seek redressal about his ailment or disease – Last but not the least, every patient has the proper to address his grievances and give feedback about the healthcare and remedy they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family Welfare (MoHFW) extra provides, ” sufferers and caregivers have the correct to seek redressal in case they are aggrieved, by reason of infringement of any of the above-recounted rights on this charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted by the federal government corresponding to sufferers’ rights Tribunal forum or scientific organizations regulatory authority because the case could also be.

What are the consequences of Medical Negligence?

Civil or monetary liability

Liability under the Consumer Protection Act

All the medical services fall under the purview of the Consumer Protection Act 1986. The interests of the consumers are been protected against the deficiency of services. Section 2 (1) of the Consumer Protection Act defines the ‘deficiency of service’ means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that 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 about any service. For example, in the case of Indrani Bhattacharjee v. Chief Medical Officer and Ors.[4] the ECG of the patient was not normal and the doctor failed to advise the patient to consult a cardiologist and also to reduce smoking and drinking, and instead gave him medicines for gastric trouble which amounted to deficiency in service.

In Kusum Sharma v. Batra Hospital and Medical Research Center and Ors.[5], the court has observed that when the medical practitioner fails to maintain the standards of reasonable care or competence then he/she will be held liable for medical negligence, which gives rise to the deficiency in medical service in terms of Section 2 (1) (g) of Consumer Protection Act.

In the case of Kidney Stone Center v. Khem Singh Alias Khem Chand [6], the patient was suffering from stone in the urethra. The defendant’s company promised to remove it without surgery on payment of ten thousand rupees but failed to do so. The District Consumer Forum ordered to refund the amount along with the interest.

Doctors are not held liable either individually or vicariously if they do the treatment or service without charging their patients. Therefore, free treatment at government or non-government hospital, health care center, dispensary or a nursing home cannot be considered as service as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986. Hence, the contract of service is beyond the sphere or ambit of the Consumer Protection Act. The Act cannot rescue the patients in case if they took free service or paid only a nominal fee for registration. However, if the charges of the patients’ are waived due to their incapacity to pay then they are considered as consumers and can sue under the Consumer Protection Act.

The medical practitioners or doctors will be held liable for their services unless they come within the exceptions mentioned in the case of the Indian Medical Association v. P Santha[7] and the court held that even though the services provided by the doctor or a medical practitioner are of personal nature the patients can’t be treated as contracts of personal service. They are contracts for service under which a doctor can be sued in the Consumer Protection Courts.

The complaints under the Consumer Protection Act can be filed at

1) The District Forum if the value of services and compensation claimed is less than 20 lakh rupees,

2) Before the State Commission, if the value of the goods or services and the compensation claimed is below 1 crore rupees, or

3) In the National Commission, if the value of the goods or services and the compensation exceeds more than 1 crore rupees.

There is a minimal fee for filing a complaint before the District Consumer Redressal Forums.

Liability under the Law of Torts

The tort law begins where the Consumer Protection Act ends to protect the interests of the patients. People usually file a complaint under tort or civil law in order to get compensation. For instance, if there is a breach of duty of care when the patient is under the supervision of the hospital then the hospital will be held vicariously liable to pay for the damages in the form of compensation.

In the case of Dr. Balram Prasad v.Dr Kunal Shah and Ors.[8] the Supreme Court has awarded the highest amount of compensation i.e., an amount of six crores plus interest which makes a total amount of twelve crores as compensation as the case was pending for the past fifteen years for medical negligence which led to the death of petitioner’s wife.

Sometimes, a senior doctor can be held responsible for the acts done by the junior doctor. If the employee of the hospital acted negligently and incompetent while dealing with the patient then the hospital will be held responsible for the act. In Mr. M Ramesh Reddy v. State of Andhra Pradesh[9], the hospital authorities were found to be negligent as they did not keep the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom and lead to her death. The court awarded a compensation of one lakh was awarded against the hospital.

In the case of Lakshmi Rajan v. Malar Hospital Ltd [10], the patient was a forty-year-old married woman who noticed the development of a painful lump in her breast and went to the Malar Hospital Ltd for examination, diagnosis, and treatment. Her uterus was removed though the lump had no effect on it. This ended her hope for a child. The hospital was held liable to pay compensation of two lakh rupees to the complainant.

A doctor has an obligation of providing proper treatment with the required amount of care in order to cure the patient. Failure of a doctor or a medical practitioner to discharge of this obligation essentially results in tortious or civil liability. In Hunter v. Hanley [11] the court has stated that ‘a doctor can be held liable for negligence only if it is proved that she/he is guilty of a failure to take reasonable amount of care that no doctor with ordinary skills would be guilty of if acted by taking a reasonable amount of care’.

Certain conditions have to be considered before held liable. The person must have committed an act or an omission which has been a breach of his legal duty and caused harm or injury to the patient. The complainant must prove the allegation against by submitting the best evidence available in the medical science and by presenting a professional or expert opinion and this principle was used in the case of Dr. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole[12].

The principle of Res Ipsa Loquitur

It’s well authorized that in the circumstances of gross medical negligence the principle of res ipso loquitur is to be utilized. The law of res ipso loquitur is declared to be essentially an evidential policy and the stated principle is designed to assist the petitioner or the claimant. Res Ipso loquitur deals with the matters which speaks for itself; even as finding out the liability of the physician it has to be well established that the negligence mentioned must be a breach in due care which a traditional practitioner would have been ready to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if the act of the person clearly shows that it is the reason the injury caused to the patient although, there is no distinctive evidence of an act of negligence, and without negligence, the accident should not have happened. A general practitioner will not be an insurer for the sufferer, lack of ability to medication, the patient would not amount to negligence, however, carelessness ensuing in the hostile situation of the patient would.

In some situations, the claimant can invoke the principle of res ipsa loquitur which means the thing speaks for itself. Sometimes, no proof of negligence is required or needed beyond the accident itself. This principle was applied in the case of Dr. Janak Kantimathi Nathan vs Murlidhar Eknath Masane[13].

In Gian Chand v. Vinod Kumar Sharma[14], the hospital authorities shifted the patient from one ward to another instead of changing the treatment that has been given to the patient. This resulted in damage to the patient’s health and the hospital authorities were held liable for negligence.

In Jagadish Ram v. State of Himachal Pradesh[15], the court has held that before performing any surgical procedure, the chart revealing understanding concerning the quantity of anesthesia advert allergies of the patient should be mentioned in order that an anesthetist can provide a plentiful amount of drug treatments to the sufferer. The health care professional in the above case failed to do so, therefore, because of the overdose of anesthesia the patient died and the doctor was once held liable for the identical.

Criminal liability

In the case of State of Haryana v. Smt Santra [16], the Supreme Court has stated that the liability in civil law is based on the damages incurred and in criminal law, the degree of negligence is a factor in determining the liability. However, the elements like the motive or the intention behind the offense, the magnitude or degree of the offense and the character of the offender must be established to determine the criminal liability.

In Jacob Mathew v. State of Punjab & Anr.[17], the court has stated that ‘a very high degree of negligence is required to be proved for imposing criminal liability.’ The Criminal liability for medical negligence may be imposed if

The doctor was not possessed of the requisite skill which he claimed to possess or

He possessed the skill but did not exercise, with reasonable care and competence in the given case.

In Poonam Verma v. Ashwin Patel [18], the Supreme court has distinguished between negligence, recklessness, and rashness, and also defined what amounts to criminal liability. It stated that a person is said to be acted in a negligent manner when he/she unintentionally commits an act or omission that causes a breach of his/her legal duty. A person who acted in a rash manner when he/she knows the consequences but foolishly thinks that they won’t occur as a result of his/her act. A reckless person knows the consequences but doesn’t care whether or not they result from his/her act. The Court has stated that ‘any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability. ’

A doctor can be held liable under criminal law if it is shown that he/she was negligent or incompetent in performing their duty, with such disregard for a patient’s right to life and right to safety of his patient’s that it amounts to a crime against the State. This principle was used in the case of R vs Adomako [19].

Sections that are often applied to deal with the cases of medical negligence under criminal liability are –

Section 304-A of Indian Penal Code – A person who commits a rash or negligent act which amounts to culpable homicide will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 337 of Indian Penal Code – A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Section 338 of Indian Penal Code – A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

Disciplinary action

The punishments and disciplinary action for medical negligence and misconduct are mentioned in chapter 8 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 made under the Indian Medical Council Act, 1956.

If a medical practitioner is found guilty of committing misconduct by the appropriate Medical Council then he will be awarded the certain punishments which include

Removing the name of the medical practitioner from the register of medical practitioners forever or for a specific period of time.

During the pendency of the complaint, the council may restrain the medical practitioner from performing the procedure or practice under scrutiny.

The removal is widely publicized through local press and publications of different Medical Associations or bodies.

What are the defenses available for a doctor under the Indian Penal Code?

Section 80 of Indian Penal Code – Anything which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.

Section 81 of Indian Penal Code – Anything which is done merely by reason of it is being done with the knowledge that it is likely to cause the harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property is not an offense.

Section 88 of Indian Penal Code – No person can be accused of an offense if he/she performs an act in good faith for the benefit of the other person, does not intend to cause harm even if there is a risk and the patient has explicitly or implicitly given consent.

What are the laws that affect the medical profession?

There are few laws or provisions which affect the medical profession and it’s working. These are the laws which prevent medical negligence or malpractice and protects the interests of the patients. They are

Article 21 of the Indian Constitution – It states that no person shall be deprived of the right to life and personal liberty except according to the procedure established by law.

Article 32 of the Indian Constitution – It speaks about the Right to Constitutional Remedies. The apex court is given authority to issue directions, orders or writs and is considered as the protector and guarantor of Fundamental Rights.

Article 41 of the Directive Principles of State Policy – The State can, within its jurisdiction, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 42 of the Directive Principles of State Policy – The State can make provisions for securing just and humane conditions of work and for maternity relief.

Article 47 of the Directive Principles of State Policy – The State can regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State can endeavor to bring about prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health except for medicinal purposes.

Section 52 of Indian Penal Code – Anything which is done without due care and attention cannot be considered as an act done in good faith.

Section 90 of Indian Penal Code – If the consent is given by an individual underneath worry of damage, or beneath a false impression of fact, and if the individual doing the act knows, or has intent to think, that the consent used to be given consequently of such fear or misconception; or Consent of insane character, if the consent is given by way of a man or woman who, from unsoundness of intellect, or intoxication, is unable to appreciate the character and outcome of that to which he gives his consent; or Consent of little one, unless the contrary seems from the context, if the consent is given by means of a character who’s under twelve years of age.

Section 92 of Indian Penal Code – Nothing is an offence by using cause of any harm which it will intent to a person for whose improvement it’s finished in just right faith, even without that character’s consent, if the instances are such that it’s not possible for that individual to suggest consent, or if that character is incapable of giving consent, and has no guardian or a different man or woman in lawful charge of him from whom it’s possible to receive consent in time for the object to be done with advantage. First of all, this exception shall not prolong to the intentional causing of loss of life, or the making an attempt to motive dying. Secondly, that this exception shall now not extend to the doing of something which the man or woman doing it knows to be more likely to reason death, for any motive rather than the stopping of death or grievous damage, or the curing of any grievous sickness or infirmity. Thirdly, that this exception shall no longer extend to the voluntary inflicting of hurt, or to the making an attempt to cause harm, for any reason as opposed to the stopping of dying or hurt. Fourthly, that this exception shall no longer lengthen to the abetment of any offense, to the committing of which offense it would now not extend.

What are the exemptions for Medical Negligence?

Doctors are not held liable either individually or vicariously if they do the treatment or service without charging their patients. Therefore, free treatment at government or non-government hospital, health care center, dispensary or a nursing home cannot be considered as service as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986. Doctors will be held liable for their services unless they come within the exceptions mentioned in the case of the Indian Medical Association v. P Santha[20].

The doctors cannot give a warranty to act in a perfect manner or a guarantee of cure to the patient. If the doctor has adopted the right course of treatment for the patient, is skilled and has worked with a proper method and manner that suits the patient at best then she/ he cannot be blamed for negligence even if the patient is not totally cured as stated in the case of Savitri Devi v. Union of India [21].

Conclusion

Medical negligence is the misconduct by medical practitioners or doctors by not providing enough care and taking proper safeguards or measures resulting in the breach of their duties harming the patients. It occurs because of improper, unskilled or negligent treatment provided to the patients. Every medical professional or doctor has a duty of care towards their patients and when they commit a breach of this duty of care it causes injury to the patients and gives the patient’s right to bring an action against negligence. The act of medical negligence results in civil liability, criminal liability and disciplinary action.

References

[1] SA. No. 832 of 2000(G).

[2] 1969 AIR 128, 1969 SCR (1) 206.

[3] 2000 5 SCC 182:: AIR 2000 SC 3335.

[4] II CPJ 342 UP S.C.D.R.C., 1998.

[5] AIR 2010 SC 1050.

[6] CPJ 436 Chandigarh S.C.D.R.C., 2000.

[7] 1996 AIR 550, 1995 SCC (6) 651.

[8] (2014) 1 SCC 384.

[9] 1975 36 STC 439 AP.

[10] C P J 586 Tamil Nadu S.C.D.R.C., 1998.

[11] 1955 SLT 213.

[12] AIR 1969 (SC)128.

[13] 2002 (2) CPR 138.

[14] A.I.R. 2008 H.P. 97.

[15] A.I.R. 2007 (NOC) 2498 (H.P).

[16] 2000 5 SCC 182:: AIR 2000 SC 3335.

[17] 2005 6 SCC 1.

[18] 1996 AIR 2111, 1996 SCC (4) 332.

[19] 1994 3 All ER 79.

[20] 1996 AIR 550, 1995 SCC (6) 651.

[21] IV 2003 CPJ 164.

Death in Relation to Tort

Introduction

Wide variety of claims are covered under the law of torts. The claim for compensation is usually brought by the person who has sustained the injury against the person who is responsible for such injury. What would be the case if the person to whom the injury is caused dies? Can the representatives of the deceased claim for the compensation?

The topic can be studied under two broad heads:

How does the death of one of the parties affect the cause of action

For example, A has a cause of action against B, and either of the parties during the proceedings, the question that arises here is that will the cause of action survive? Thus, to say in other words, can the representatives of A sue B on behalf of A or if B dies can the representatives of B sue A?

Secondly, How far is causing death actionable in tort

The question here is, if A’s death is caused because of the act of X, then how his act gives right to the legal representatives of A to make X liable.

What is the effect of death on the subsisting cause of Action?

According to the English common law, no cause of action arises against the person who is dead. This rule was contained in the maxim “Actio personalis moritur cum persona”, the cause of action dies with the person, thus, if any of the parties die, cause of action comes to an end.

The application of the maxim in India can be seen in the case of :

Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital

Facts

A complaint was filed by Balbir Singh Makol against the surgeon alleging that his son died because of the blunder committed by the surgeon. While the proceedings were going on, the Surgeon died.

Held

The National Commission applied the maxim “Actio personalis moritur cum persona” and held that with the death of the surgeon the cause of action has also come to an end and therefore, the legal heirs of surgeon can not be made liable for the same.

Exception to the maxim “Actio personalis moritur cum persona”

There are two exceptions to the maxim “Actio personalis moritur cum persona”:

Action under Contract: The maxim does not apply to the cases where an action is brought under the law of contract, therefore the legal representatives of the person can be made liable for the performance. However, if the contract entered into is a contract of personal service, then the legal representatives would not be liable for the performance. Thus, for example, there is a contract with A for singing on a particular event and meanwhile, A dies, then the representatives of A cannot be made liable for the performance.

Unjust enrichment of tortfeasor’s estate: If someone, before his death has wrongfully appropriated the property of another person then the person whose property has been appropriated does not lose his right to bring an action against the representatives of the deceased and recover the property. The rationale behind it is that, only the thing actually belonged to the deceased can be passed to his representatives.

The Action by or Against the Estate of the Deceased

The passing of Law Reform (Miscellaneous Provisions) Act, 1934 has abrogated the maxim, thus providing that the cause of action does not die with the death of the person. It means that the subsisting cause of action survives in spite of the fact that either of the parties has died.

The Law Reform (Miscellaneous Provisions) Act, 1934

The Act, allowed to be sued and bring an action for the claim against the estate of the deceased.

Section 1(1) of the Act provides that on the death of the person all causes of action subsisting against or vested in him, shall survive for the benefit of his estate.

Exceptions

Claim for Defamation

Claim for bereavement damages (shall be discussed later)

Defamation: According to Common rule, the deceased cannot be defamed. Defamation is an act or a statement that damages one’s reputation and it is considered that the dead have no reputation to be damaged.

Similarly, no cause of action arises against the deceased, as the cause of action in defamation is a personal one that does not survive death.

When the deceased estate brings an action against the wrongdoer, it must prove that the deceased had the “cause of action” which was “vested in him” at the time of death.

Action against the Estate of the deceased: The time is a crucial factor when the deceased estate is sued by the claimant.

Section 4 of the act provides that, if the damage has been caused because of the act or omission of a person and the person dies before or at the same time when the damage was caused, then an action is deemed to have been subsisted before his or her death.

For Example, If in the case of Donoghue v. Stevenson, the manufacturer of ginger wine dies before the claimant had consumed the beer and suffered from a serious illness, then the claimant action is preserved under Section 4 of the Act and therefore, the estate of the deceased can be sued.

What can the Estate of Deceased Claim

Section 1 (2)(c) of the act provides that the estate of the deceased can claim the funeral expenses in addition to all the damages which the deceased could have claimed upto the date of his death. Provided that the funeral expenses should be reasonable.

The Estate may recover for any physical injury and pain, suffering and loss of amenity. Provided that such damages must be sustained by the deceased prior to his death. If the damages are sustained after the death then the estate cannot claim for such damages.

Case law

Hicks v. Chief Constable of South Yorkshire

Facts

The estate of two sisters brought an action against the defendants for the fear and terror which the sisters would have suffered prior to death.

Held

The House of Lords held that fear by itself, of whatever degree, is a normal human emotion for which no damages can be awarded.

The Administration of Justice Act, 1982

The Administration of Justice Act, 1982 has curtailed the heads of the damages that can be awarded.

Section 1(2) of The Law Reforms (Miscellaneous Provisions) Act, 1934, has been amended by Section 4 (2) of the Act.

No damages to be awarded for the loss of Income in respect of any period after death.

Excludes exemplary damages

Shortening of the expectation of life

One of the consequences which may attend physical injury is a shortening of expectation of life, so that the injured person can not in any possibility survive as long as he would otherwise have done.

If the expectation of life has been reduced because of the injuries caused by the defendant then the person is entitled for the compensation.

The compensation under this head for the first time was given in the case:

Flint v. Lovell

Facts: the Plaintiff aged 69 years who was otherwise very active was injured in an accident caused because of the negligence of the defendant.

Held: The appellant court granted compensation to the plaintiff.

Damages in Case of Shortening of Expectation of Life

In Benham v. Gambling, the House of Lords laid down certain principles to determine the quantum of damages, in situations where a person’s normal life span of life is shortened because of the wrong committed by the Plaintiff.

What is the test to determine Compensation

The test to determine compensation depends upon the prospect of a predominantly happy life rather than the length of the time of life of which the person has been deprived.

The test of happiness of life is objective rather than subjective

Very moderate damages are awarded under this head

The economic and social position of the deceased is not taken into account while accessing the damages because the happiness of life does not necessarily depend on such things.

How far is causing death actionable in Tort?

Position in England

According to the common rule, the cause of action for smaller injuries lies in the civil law but death of a person can not be termed as an injury and thus does not come under the purview of Civil law.

Presently in England, when it is proved that the death has been caused because of the act of the defendant’s tort, the plaintiff is entitled for special damages. The modern position is thus, that the tort actions have a life of their own and do not die with the death of either of the parties. However, the old rule is still followed in the cases which involves the disputes of very “personal” nature, for example, Defamation.

Rule in Baker v. Bolton

The rule, causing the death of a person is not a tort was laid down in the case of Baker v. Bolton, and is therefore known as the rule in Baker v. Boulton.

In this case the plaintiff was held entitled for injury to himself and also the loss of wife’s society and distress, from the date of the accident till her death but not for any loss caused after death.

Exception to the rule in Baker v. Bolton

However, there are certain exceptions available to the rule in Baker v. Bolton which are discussed below:

Death due to breach of contract: Although, causing the death of the person is not actionable under the law of tort but if the death is the result of the breach of contract then the fact of death can be taken into account to determine the damages payable on the breach of Contract.

Jackson v. Watson

Facts

Plaintiff purchased a tin of Salmon from the defendants . Wife of the plaintiff died because of the consumption of salmon supplied by the defendants. It was found that the contents of the Salmon were injurious to health.

Held

It was held by the court that there was a breach of contract as the defendant has failed to supply the goods safe for consumption and hence, the plaintiff was held entitled to claim compensation for the loss of service of the wife due to her death.

Compensation for death under various statutes: In England there are various statutes which contains the provisions for compensation on the death of a person. Some of them are:

The Coal-Mining (Subsidence) Act, 1957

The Carriage by Air Act, 1961

The Carriage of Passengers by Road Act, 1974

The Merchant Shipping Act, 1979

The Fatal Accidents Act, 1976

However, these acts except the fatal accidents act, 1976 are not related to the tort and are thus not discussed here.

Dependent’s Action

The Fatal Accidents Act, 1976:

The fatal accidents act, 1846 which is also known as Lord Campbell’s Act, was passed in response to the increasing number of fatalities on railways leaving the family members of the deceased unsupported. The governing statute is now the fatal accidents act, 1976.

Dependency Claims

When can the dependents bring an action for the Claim

Section 2(2) of the Act provides that if there are no executors or administrators of the deceased or no action is brought by them with the six months of the death then the dependents of the deceased are entitled to bring an action.

Dependent’s entitled to “specific damages”: Wrongful death of a person enables the dependents of the deceased to recover specific damage for the deprivation of financial income or financially measurable support caused because of the death of a person.

Dependent’s action is both derivative from and independent of, the deceased’s claim: It is derivative because the dependent claim depends on the validity of any claim which would have been to the deceased. Thus, if the claim was barred for the deceased then it will be barred for the dependent as well.

It is Independent because the dependents claim is for damages sustained by them personally.

The Deceased must have been able to claim against the defendant: Section 1(1) of the 1976 act provides that an action will succeed only if the wrongful act, default which caused death, is such that if the person had not died, would have been entitled to bring an action and claim damages from the defendant thereof.

Thus, there are three essentials to bring a successful action against the defendant:

The defendant must have committed a tort

The tort of the defendant resulted in the death of a person

The deceased would have been entitled to bring an action against the defendant, if he had not died

The Dependent must be appropriate claimant under the Act

The act recognises an action only for the benefit of certain dependents of the deceased. The dependents, in whose favour such an action has been recognised, are:

The spouse or the former spouse of the deceased

Any parent or other ascendent of the deceased

Any person who was treated by the deceased as his parent

Any child or other descendent of the deceased

Any person who was treated by the deceased as a child of the family

Any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

Who can not claim

Cohabitants who were living together as husband and wife but do not satisfy the ‘two year rule’

Children who were not of the deceased but who were supported by the deceased whilst he or she was engaged in a marriage-like relationship with their parent

Children otherwise supported by the deceased such as friend’s children

Certain distant relatives supported by the deceased such as a great-nephew supporting a great-aunt

Non-relatives who live together but do not enjoy a marriage-like relationship

In Kotke v. Saffarini, the deceased died in a car accident. A claim was brought by the partner of the deceased. She was not the spouse of the deceased and had not been living with the deceased in the same house for 2 years.

It was held that the plaintiff was not the dependent of the deceased and was not entitled to bring an action against the defendant

The Dependent must have suffered a loss of dependency

To determine the amount of damages it is important to look upon as to what was the likely benefit to the claimant or dependents if the deceased had survived.

In Taff Vale Rail Co. v. Jenkins, the father of a 16 year old girl was held entitled for the compensation as the girl would have earned substantial amount in the near future after the completion of her apprenticeship.

In assessing the future loss which are likely to arise, the prospects of the dependent’s may also be taken into account. Thus, while assessing loss to the widow because of her husband’s death, her prospects of remarriage were taken into consideration in the case Curwen v. James, in this case, a woman was granted compensation by the trial court when there was no evidence of the likelihood of remarriage but the widow remarried before the expiry of the time of appeal and therefore, the court of appeal redressed the damages accordingly.

The action must not be barred or excluded

For Example: where the deceased has settled their claim, where the deceased was entirely at fault or where the defence was available against the deceased.

Contributory Negligence

Section 5 of the Fatal Accidents Act 976 states that where a person dies as the result of partly his fault and partly of the other, so that the damages would have been reduced under the Law Reform(Contributory Negligence) Act , then the damages recoverable by the dependents would be reduced to a similar extent.

Damages

The purpose of providing damages to the dependents of the deceased under Fatal Accidents Act, 1976 is to provide the capital sum to cover the material comforts to the dependents which the deceased would have provided to those dependents if he had not died.

Section 3(2) of the 1976 Act, provides that damages must be divided among the dependents in such shares as may be directed.

In Knauer v. Ministry of Justice, it was held that the multiplier is calculated from the date of trial and not from the date of death.

The Fatal Accidents Act, 1976 provides only for the loss of dependency and not for the recovery of business losses.

Burgess v. Florence Nightingale Hospital of Gentlewomen

FACTS: The plaintiff and his wife were professional dance partners. Plaintiff’s wife died because of the defendant’s negligent act. The plaintiff brought an action against the defendant hospital to claim for the business losses that he suffered due to the death of his wife.

HELD: The plaintiff was held not entitled for the compensation as no services were rendered by the wife to the husband.

Dependents can claim for pecuniary losses such as loss of financial support, benefits in kind, as well as non-pecuniary losses like loss of care and attention, domestic services etc.

Section 3(3) of the 1976 Act, provides that while assessing the widow’s claim in respect of her husband’s death “there shall not be taken into account the re-marriage of the widow or her prospects of re-marriage.” However, this has been changed now and the future prospects of re-marriage are taken into account.

The deceased’s divorce aspect could be taken into account and the multiplier could be reduced to that effect.

In assessing the damages, any benefits accrued to the dependent or which will or may accrue to the dependent as a result of deceased death are discarded.

Bereavement

Section 1A of the 1976 Act provides that damages can be awarded for mental distress (such as sorrow,grief, loss of enjoyment)

Claim for damages under this head are available only to:

Wife or Husband of the deceased, or the Civil partner

The parents of the child, if the deceased was unmarried minor child

The mother of an illegitimate unmarried child

Minor or the adult child is not eligible to bring an action under this had.

Position In India

There is not much difference in the position of India from that of England regarding an action for compensation on the death of a person. There are various statutes in India which allows the compensation to the representatives of the deceased. Some of the examples are:

The Workmen’s Compensation Act, 1923

The Indian Railways Act, 1890

The Carriage by Air Act, 1972

The Air Corporations (Amendment) Act, 1971

The Fatal Accidents Act, 1855

Fatal Accidents Act, 1855

The act recognises certain dependants and tort actions, on the death of a person. Section 1-A of this Act contains that the death of a person caused by the wrongful act, neglect or default is actionable and every such action or suit shall be for the benefit of the wife, husband, parent and child. The dependents recognised under Section 1-A of the act are wife, husband, parent and child. The term parent includes father, mother, grandfather and grandmother, and the term child includes son, daughter, grandson and granddaughter.

In Budha v. Union of India, it was held by the court that an action by the brother of the deceased is not maintainable as he is not recognised as legal representative under section 1-A of the act.

Payable compensation under a statute

If a statute specifies the payment of some compensation in the event of the death of a person, then the compensation can be claimed on that basis.

In a case where the appellant’s husband died because of the electric shock after coming in contact with the live wire. The high court ordered the payment of Rs. 30,000 as compensation on the basis of the circular issued by the Maharashtra State Electricity Board. Before the compensation case was closed, the Maharashtra State Electricity Board issued another circulare increasing the sum to Rs. 60,000. It was held by the court that since the amount was increased before the compensation case was closed, the appellant’s are entitled for the increased amount of the compensation.

Conclusion

Earlier, the common rule was, smaller injuries fall within the purview of civil law and not the death of a person. But now, if the legal representatives of the deceased prove that the death was the direct cause of defendant’s tort, they would be entitled to special damages along with general damages.

Under English common rule, no cause of action arises against the person who is dead. However, the situation is quite different today, and the legal representatives are entitled to bring a legal action in a court of law. Similarly, the legal representatives of the deceased can be made liable in certain cases.

In India, the dependents in actual practice includes, brothers, sisters, uncle and aunt because of the prevalent joint family system and the social and economic conditions of the country. However, they are not recognised as dependents under the Fatal Accidents Act, 1855. Thus, there is a need for the amendment in the act so as to include more dependents as beneficiaries.

The rule in Baker v. Bolton has become outmoded and it is hoped that this outmoded rule will be discarded and the liability for the consequences of the death will be recognised either by some legislative actions or judicial pronouncements.

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