Q.1. Define legal damage. Discuses its types with examples of relevant cases.
Ans. Legal damage is second important ingredient in constituting a tort. Damage means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act done by another person. The sum of money which is awarded by the court to compensate ‘damage’ is called “damages.”
On the basis of presumption of damage, rights are of two types—
(a) absolute; and (b) qualified.
In case of violation of absolute right, the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is legal damage. In qualified rights, there is no presumption of legal damage and the violation of such right is actionable only on proof of actual or special damage. In this case, injury or wrong is not complete unless and until actual damage has been caused by violating the rights.
In the case, Ashby v. White, (1703) 2 Lord Rayam, 938, the plaintiff’s legal right to vote in the parliamentary election was maliciously violated by the defendant and the defendant was held liable although the plaintiff did not incurr any pecuniary loss. Lord Holt, C.J., observed—
“Every injury imparts a damage through it does not cost the party one farthing, and it is impossible to prove the contrary for a damage is not merely pecuniary, but an injury imparts a damage when a man is thereby hindered of his right.”
In another case, Marzetti v. Williams, (1830) 1 B & AD 415, the banker refused to honour the cheque of the customer although the banker had sufficient funds in his hand. Here the customer did not sustain any actual loss or damage, even then the banker was held liable.
Q.2. Discuss the maxim—‘Damnum sine injuria’ with the help of relevant cases.
Ans. The maxim—‘damnum sine injuria’ has a meaning which speaks about the damage or loss without breach or infringement of legal right. It can also be understood that no action lies for damage or loss even when it is substantial in nature but has been caused by an act which does not breach or infringe some legal right of the plaintiff.
Here we may discuss some of the cases which give a good example of this maxim.
In the case, Gloucester v. Grammar School, 1441 YB 11 Henry IV, 47, plaintiff was running a school, and in the neighbourhood defendant also set up a school for children. Plaintiff had to reduce the tuition fees of children since they were leaving the school of plaintiff and joining the school of defendant. It was held that even though the plaintiff has suffered substantial loss due to rival school but plaintiff had no cause of action against the defendant on the ground that bona fide competition cannot afford ground for action, whatever damage it has caused to plaintiff.
Q.3. Define the maxim ‘volenti non fit injuria’ with the help of relevant cases and discuss its application.
Ans. If a person suffers a harm voluntarily then it does not constitute a legal injury and is not actionable. The maxim ‘volenti non fit injuria’ signifies this meaning. A man cannot make an excuse for an injury which he has received in fulfilment of his desire or willingly accepted to take the risk. If the person has consented either expressly or impliedly then he can’t sue for a tort. So, this maxim can also be translated as the injury voluntarily suffered is not fit for action. So, no breach of legal right can be said to be committed against the person who is a willing party or who has given his consent for the harm/injury to be received in consequence of the furtherance of his act. Such injury is not actionable. Following are the basic points which constitute the maxim ‘volenti non fit injuria’ and these are required to be proved for justifying one’s tort—
(a) Knowledge of risk.—
At first instance, the plaintiff should have the knowledge about the nature of act/work and the risk involved in performing the act. If, he lacks the knowledge about the nature of work and quantum of risk what it will be when the work is performed, it will be presumed that he had no knowledge of the risk. The knowledge of the plaintiff is significant here and if it is missing, the defence of volenti non fit injuria cannot be availed by the defendant.
(b) Free consent.—
Besides the knowledge of the nature of act as well as extent of risk in an act, free consent to run the risk is also necessary for the plaintiff. The consent must be voluntarily and with free will. Consent given by the plaintiff under coercion or force, fraud and mistake can’t be treated as free consent.
(c) Consent to illegal act.—
It was observed in the case, R. v. Donovan, (1934) 2 KB 49, that no person can give license to another person to commit a crime.
(d) Consent of minors or insane persons.—
Consent given by minors or insane persons are generally not taken as consent since both are considered immature as far as knowledge is concerned and in such cases, consent by their guardians are taken as sufficient.
(e) Breach of Statutory duty.—
In many cases, a number of duties are being imposed on the employer. When there is a breach of statutory duty by the employer, he is liable even when the employee has given the consent. Hence consent to a breach of statutory duty is not acknowledged.
Application of this maxim.—
In the case, Ilott v. Wilkes, (1820) 3 B & Ald 304, the defendant had put spring guns in a wood on his ground to protect the game. The plaintiff had full knowledge about placement of spring guns he trespassed on the defendant’s land and got injured. On a suit of plaintiff the court observed that although defendant had exceeded his right of private defence he was not liable since the plaintiff had taken the risk of trespassing even after knowing that the spring gun was placed on defendant’s land. The court observed that he having wilfully courted the danger himself his case fell within the maxim ‘volenti non fit injuria’.
In another case, Maung Sein v. Emperor, AIR 1935 Rang 82, Ma Thin, wife of Maung Sein, died giving the birth of a child. An unqualified mid-wife attended Ma Thin during delivery of the child. Ma Thin, knowing completely about her qualification consented to appoint her as mid-wife. It was held that the maxim ‘volenti non fit injuria’ is applied here as the plaintiff had taken the risk to appoint unqualified mid-wife with full knowledge, hence, not entitled for damages.
Q.4. Define tresspass ‘A person is thrown upon the other man’s land by someone else’—can it be said that it is a trespass?
Ans. Trespass means to cross over other’s territory without taking the permission of the land’s owner on which trespasser has no authority to cross. But, if a person enters a land assuming it as his own although it belongs to someone else, he has committed the wrong of trespass. Any voluntary intrusion upon land without the consent of the person having possession or right of immediate possession is a trespass to land. It is actionable even without proof of damage. Trespass of land is committed by intrusion of any sort of entry or contract directly from an act of defendant.
Placing a ladder against premises, driving a nail into a wall of another, growing a creeper upon other’s wall etc., are the examples of trespass. It was said in the case, Smith v. Stone, (1647) Style 65, that if the entry is involuntary then it does not amount to trespass. When a person is thrown upon other man’s land by someone else then it is not a trespass.
A person who has got permission to enter one part of a building or enclosure has got a licence to visit that particular part and not the entire building. If a person who has been allowed to sit in the drawing room goes to bedroom without any justification, it is called a trespass.
If A plants a tree on his own land and its roofs and branches spread on B’s land then it is trespass. If a person X owns a land then its sub-soil also belongs to him and if another person Y makes a tunnel beneath the land owned by X then it is a trespass.
Q.5. Define negligence. What are the essential ingredients of constituting a negligence?
Ans. When there is no intention of causing harm to the person complained of then it is called a negligence. Carelessness on the part of defendant constitutes negligence. In the words of Swayne J.—
negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation.
Essential ingredients of negligence are as follows:
(a) it was a legal duty of defendant to take reasonable care towards the plaintiff to avoid the damage complained of;
(b) the defendant committed a breach of duty; and
(c) due to breach of duty plaintiff suffered damage.
Duty to take care.—
A person is supposed to behave in a reasonable manner but if he deviates from acting as a reasonable person then he is said to be careless. But, for every careless act a man cannot be held responsible in law.
Criterion of duty.—
To determine whether duty to take care was there or not is upto judge. It becomes easier to decide where there is already earlier decision which have established the duty. In the case, Heaven v. Pender, (1883) 11 QBD 509, Brett MR attempted to formulate a principle for the first time. It was established in this case that under certain circumstances, one man may owe a duty to another, even though there is no contract between them.
“One man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property”.
In another renowned case, Donoghue v. Stevenson, 1932 AC 562, Lord Atkin laid down the important principle of determining a duty. In this case, the defendant was a manufacturer of ginger beer who sold the beer in a sealed and opaque bottle. A person bought it and presented to his friend Miss Donoghue. She drank the beer. In the bottle, she found decomposed body of a snail. She fell ill and sued the manufacturer for negligence.
It may be noted here there was no contract between the plaintiff and the defendant. Delivering the majority judgment, Lord Atkin laid down the rule of determining the duty in following words—
“The liability for negligence is no doubt based upon a general public sentiment of moral wrong doing for which the offender must pay. But acts or omission which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief”. While laying down the principle of notional duty, also stated that under what circumstances a manufacturer owes a duty of care towards the consumer in following words—
“………..a manufacturer of products, which he sells in such a farm as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.
It was held that although there was no contractual duty on the part of the defendant but the defendant owed her a duty to take care that the bottle did not contain noxious matter and that he would be liable if that duty was broken.
Q. 6. What are the duties of occupier to visitors as per Section 2(2) and 2(3) of the Occupier’s Liability Act, 1957? Discuss it with the help of relevant cases.
Ans. Section 2(2) of the Occupier’s Liability Act, 1957 states that the common duty of care which an occupier owes to all his visitors is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.
Section 2(3) of the said Act says that the circumstances relevant for the purpose will include ‘the degree of care, and of want of care which would ordinarily be looked for in such a visitor.’
In the case, City of Ferguson v. Marrow, 210 Federal Report (II series) 520, the plaintiff a youth of 21 years of age was an experienced but not an expert swimmer, took a dive in a swimming pool and got his head hit in the bottom of swimming pool. It was found as a matter of fact that there was danger due to insufficiency of depth of water in the pool. The court held the pool authorities liable.
In another case, Klaus Mittlebachert v. East India Hotels Ltd., AIR 1997 Del 201, the victim was a German National who while taking a dive in a swimming pool of a 5-star hotel hit his head against the bottom of the pool, which resulted in severe head injuries which caused paralysis to the victim and after 13 years of accident he died. It was found that in the swimming pool, water was not sufficient. The court held that the hotel was liable for defective design of the swimming pool. The court observed as follows:
“A 5-star hotel charging a high or fancy price from its guests as regards quality and safety of its structure and services it offers and makes available. Any patent defect in its structure or services, which is hazardous to guests, would add strict liability to compensate for consequence flaming from its breach of duty to take care. The 5-star price tag hanging on the service pack attracts and costs an obligation to pay exemplary damages if an occasion may arise for the purpose. A 5-star hotel cannot be heard to say that its structure and services satisfied the standard of safety of the time when it was built or introduced. It has to update itself with the latest and advanced standard of safety.”
Q.7. Describe the maxim ‘Qui facit per alium facit per se’. Elaborate the liability of a person who allows his vehicle to be driven by someone else.
Ans. The maxim Qui facit per alium facit per se means ‘he who does an act through another is deemed in law to do it himself on which the vicarious liability of principal for the tort of his agent is based.’ A principal is vicariously liable for the tort of his agent committed within the course of his authority.
Here, we can understand with the example—
If A authorizes B to drive his car and if B somehow makes an accident and injures someone, then A will be held vicariously liable. Here, authorization is an important ingredient to hold the master liable.
In the case Ormord v. Crosville Motor Services Ltd., (1953) 2 All ER 753, the defendant was about to compete in the car rally asked his friend to drive his car from Birkenhead to Monte Carlo so as to meet the defendant at the end of rally there. The friend had to carry a bag in the car for defendant as both of them had to go on a holiday after completion of competition. When the friend, departed from Birkenhead for Monte Carlo met with an accident and collided with an omnibus. The court held the defendant liable for his friend who was using his car. Lord Denning while delivering the judgment observed as follows—
“The law puts a special responsibility on the owner of a vehicle who allows it to go on road in charge of someone else, no matter whether it is his servant, his friend or any one else. It is being used wholly or partly on the owner’s business or for the owner’s purpose, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern.”
Q.8. What are the essentials of constituting a defamation against someone? Discuss with the help of some relevant cases.
Ans. A man’s reputation is an invaluable property. If a person’s reputation is being damaged then this loss exceeds far compared to the damaged property. Loss of reputation and dignity come under the heading ‘defamation’. To constitute an action for defamation following essentials are necessary:
(i) The statement must be false and defamatory,
(ii) It must be published, and
(iii) It must refer to the plaintiff.
(i) False and Defamatory Statement.—
The statement must be false and defamatory. In the case, Sim v. Stretch, (1936) 2 All ER 1237, it was observed that the defamatory statement must be such which tends to lower a person in the estimation of right thinking members of society generally. A right thinking man is a reasonable man who is neither unusually suspicious nor usually naive and he does not always interpret the meaning of words as in case of a lawyer since ‘he is not inhibited by a knowledge of the rules of construction.’
Some examples may be cited here as follows—
(a) In the case, Yousoup v. Metro-Goldwyn Mayer Pictures Ltd., (1934) 50 ILR 581, the plaintiff, a Russian Princess was falsely imputed by a cinematograph film that she had been raped or seduced by the notorious monk Rasputin. The court observed that this tended ‘to make the plaintiff be shunned and avoided’ in the estimation of right thinking persons of the society generally.
(b) S.N.M. Abidi v. Profulla Kumar Mohanta, MANU/GH/0021/2002 : AIR 2002 Gau 75 (DB), in the case, in a weekly magazine—‘the Illustrated Weekly’, it was alleged that the former Chief Minister Profulla Kumar Mohanta had misused man and muscle power. The court found the allegation false, baseless and defamatory which harmed the plaintiff’s reputation and awarded a damage to the tune of Rs. 5,00,000.
(ii) Publication of the statement.—
To get the statement published is another essential ingredient in constituting defamation. Here, publication does not mean giving the publicity but to make the statement known to other person than the person defamed. For example, if X writes to Y that Z is a cheat, then it is a publication since X has told it to someone other than Z i.e. to Y. But, if X writes to Z in a closed envelope that you (Z) are a cheat, it is not a publication. To send something via telegram or postcard that could be read by others—can be claimed as publication.
But if an addressee does not know the language in which something has been written to him and if he goes to someone else to get it read then the third person will also come to know about the contents of the letter, then it would be considered as publication. But, if the person who has written the contents did not know about the addressee’s knowledge about the language then it would not be a publication. (Mahendra Ram v. Harnandan Prasad), MANU/BH/0143/1958 : AIR 1958 Pat 445.
(iii) Reference to the plaintiff.—
It is upto plaintiff to prove that the defamatory statement for which he has brought the action was certainly referred to him or reasonably made so that it would be understood by the people as referred to him. Here we may cite the example of case,
E. Hulton & Co. v. Artemus Jones, 1910 AC 20, where Artemus Jones was a barrister. A humorous article was published in a newspapers that a Church warden named Artemus Jones is enjoying his holiday at Dieppe with a woman who is not his wife. All these matters were fictitious.
But, the writer and owner of the article were unaware of the facts that a person—
Artemus Jones exists in real who is a barrister and not a Church warden. Jones brought an action against the newspaper. It was the observation of House of Lords that a person charged with defamation “cannot defend himself by showing that he did not intend to defend the plaintiff. He has nonetheless imputed something disgraceful, and has nonetheless injured the plaintiff. A man may publish a libel in good faith believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however his excellent intention was”. The defendants were held liable.
Q. 9. Describe Private nuisance. What are the essentials which constitute a private nuisance? Discuss alongwith some relevant cases.
Ans. In the words of Winfield – Private nuisance is an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. There are following elements, which have to be proved by the plaintiff in every case of nuisance:
(i) Undue or unreasonable interference,
(ii) Interference must be with the use or enjoyment of land,
(iii) Damage.
(i) Undue or unreasonable interference.—
There are some unwarranted interferences which cause damage to the plaintiff and such interferences are termed as undue or unreasonable. Undue or unreasonable interference refers to that which exceeds the limited usage in the society. If a person is erecting a wall and in doing so he creates too much noise and dust then certainly here the action lies. The interference should be continuous or repetitive.
For example, A, everyday beats a drum for 10 p.m to 1 a.m. creating a lot of noise and disturbs the sleeps of B, his neighbour. Here, A’s behaviour is unusual and generally it doesn’t happen in the society and in this process A unduly interferes B’s enjoyment of land.
In the case, Radhey Shyam v. Gur Prasad, MANU/UP/0023/1978 : AIR 1978 All 86, latter file a suit to restrain Radhey Shyam from installing a flour mill in the same premises where he lives and by installing of mill it would create rattling sound thus causing big nuisance to him and it may affect his health adversely. The court observed that the impugned machines would seriously interfere with the physical comfort of the plaintiff and as such it amounted to nuisance and the plaintiff was entitled to an injunction against the defendant.
Abnormal sensitive person or property—
if a person is oversensitive to a particular thing but for others that particular thing is very normal, then it is not nuisance. In the case, Heath v. Mayor of Brighton, (1908) 24 TLR 414, the incumbent and trustees of a Church were annoyed by a “buzzing sound” from the defendant’s power station. The court observed that the ‘buzzing sound’ was not distracting attention of ordinary person attending the Church and did not cause any annoyance to other persons.
(ii) Interference with the use or enjoyment of property.—
In a private nuisance, an interference may cause either (a) injury to property, or (b) injury to comfort or health of an occupier of land.
Injury of property.—
If property gets damaged due to an unauthorized interference then it is actionable as nuisance. In the case, St. Helen’s Smeltins Co. v. Tipping, (1865) 11 HL Cas 642, fumes were emitted from the defendant’s factory which damaged plaintiff’s tree and plants. The defendants were held liable since such damage was held as an injury to the property of the plaintiff.
Incorporeal Property.—
Actions for private nuisance also lie for interferences with easements, profits-a-prendre and certain rights which are generally called as ‘natural rights’. It is inherent in the ownership to support of one’s land by one’s neighbour’s land. Support for land – It is a natural right to have one’s land supported by one’s neighbour. But, if one’s neighbour removes such support either laterally or from beneath, then it amounts to nuisance. This natural right is available only in respect of land and not for any structure/building.
Interference with the right to light and air.—
The right to light is not a natural right. It may, be acquired by grant or prescription. But once it is acquired, any substantial interference invites action.
Section 25 of the Limitation Act, 1963 provides that the right of easement to light, air, way water course, use of water, etc., can be acquired by prescription if the right has been peaceably enjoyed as an easement and as of right without interruption.
(iii) Damage.—
Actual damage is required to be proved when the case of nuisance arises. In case of public nuisance, the action is brought against the defendant, when the plaintiff proves special damage to him. But when the nuisance is related to other than physical damages to property damage is presumed by law without imposing upon the plaintiff the difficult task of furnishing strict proof of it.
Q.10. Describe the rule as laid down in the case, ‘Ryland v. Fletcher’ by Justice Blackburn.
Ans. In the case, Rylands v. Fletcher, 1868 LR 3 (HL) 330, Ryland was a mill owner and Fletcher was the lessee of coal mines. Ryland appointed an independent contractor to construct a reservoir on his land to get water for his mill. Some old shafts were found by the contractor on Ryland land during course of the work. These shafts were connected to the mines of Fletcher. After building the reservoir, water was filled in it, the old shafts burst downward and water flowed through these old shafts into the coal mines of Fletcher. Fletcher suffered damages and brought suit against Ryland. It came to the knowledge that there was negligence on the part of Ryland but the contractor had left.
The court of Exchequer, by majority, decided in favour of Ryland. But on appeal, the court of Exchequer Chambers unanimously reversed the decision of the lower court and held Ryland liable.
Justice Blackburn delivered the judgment of the court as—
“We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
Further, it was added—
“He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major (Act of God) but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.”
The House of Lords confirmed the above rule with two clarifications that the use of land should be non-natural (as in this case) and that the thing must have been brought on the land “which was not naturally, there”.
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