RATANLAL &DHlRAJLAL

THE LAW OF

T RT
Expanded and Enhanced by
Justice G P Singh

28th Edition

Akshay Sapre
Advocate, High Court of Madhya Pradesh

_. LexisNexis'
 General Contents
Title page iii
Preface to the Twenty-Eighth edition v
Foreword to the Twenty-Seventh Edition vii
Preface to the Twenty-Seventh edition IX
Preface to the Twenty-Sixth edition xiii
Preface to the Twenty-Fifth edition xv
Preface to the Twenty-Fourth edition xix
Preface to the Twenty- Third edition xxi
Preface to the Twenty-Second edition xxiii
Preface to Twenty-First edition xxv
Opinions on earlier editions xxvii
Arrangement of Subjects xxxiii-xliv
Abbreviations xlv-Lvi
Table of Cases lvii-cc'ii
Table of Statutes cciii-ccx

Chapter Page
1. General Principles 1
II. Some General Elements in Torts 27
III. Personal Capacity 37
IV. Foreign Torts 81
V. Justification of Torts 85
VI. Death in Relation to Torts 119
VII. Discharge of Torts 153
VIII. Liability for Wrongs Committed by Others 159
IX. Remedies 197
X. Classification of Torts 269
XI. Trespass to Person 271
XII. Defamation 293
XIII. Malicious Proceedings 355
XIV. Wrongs Relating to Domestic and Other Miscelaneous
Rights 387
XV. Tort to Realty or Immovable Property 405
XVI. Torts to Personality or Movable Property 473
XVII. Torts Affecting Immovable as well as Movable Property 487

xxxi
xxxii General Contents

Chapter Page
XVIII. Torts to Incorporeal Personal Property 493
XIX. Negligence and Allied Topics 495
XX. Nuisance 655
XXI. Fraud and Negligent Misstatement 681
Summary 701 Arrangement of Subjects
Subject Index 811

Chapter I
General Principles
Page
1.1 The Law of Torts in India .............. ...................... ........ .................... ..... 1
1.2 Nature of Tort........................................................................................ 4
1.2.1 Definition of Tort ............ ....................... ................................. 4
1.2.2 Tort and Contract..................................................................... 5
1.2.3 Tort and Quasi-Contract.... ...... ............... ............................ ..... 10
1.2.4 Tort and Crime ............... ....... ....... ........ .... ......... .......... ..... ....... 11
1.3 Constituents of Tort .............................................................................. 13
1.3.1 General.................................................................................... 13
1.3.2 Wrongful Act........................................................................... 14
1.3.3 Damage.................................................................................... 15
1.3.4 Remedy.................................................................................... 22
1.4 General Principle of Liability. ...... ........................................................ 23

Chapter II
Some General Elements Torts
2.1 Act and Omission.................................................................................. 27
2.2 Voluntary and Involuntary Acts............................................................ 28
2.3 Mental Elements. ........ .................. ....... ........... ........ ............... ......... ...... 29
2.3.1 Malice...................................................................................... 29
2.3.2 Intention, Negligence and Recklessness.................................. 30
2.3.3 Motive ..................................................................................... 31
2.3.4 Distinctions Illustrated ............................................................ 32
2.4 Malfeasance: Misfeasance: Nonfeasance.............................................. 32
2.5 Fault ...................................................................................................... 33

Chapter III
Personal Capacity
3.1 Convicts and Persons in Custody.......................................................... 37
xxxiii
 •
1£'

xxxiv Law of Torts Arrangement of Subjects xxxv

Page Page
3.2 Alien Enemy ........................................................................................ . 39 111
5.11 Necessity .............................................................................................. .
3.3 Husband and Wife ................................................................................ . 40 114
5.12 Private Defence .................................................................................... .
3.4 Corporation .......................................................................................... . 41 116
5.13 Plaintiff A Wrong-Doer ....................................................................... .
3.4.1. Highway authority ..................................................................... .. 45 117
5.14 Acts Causing Slight Harm ................................................................... ..
3.5 Unincorporated Associations ............................................................... . 47
3.6 Trade Unions ........................................................................................ . 47
3.7 Insolvent .............................................................................................. .. 48
Chapter VI
3.8 The State and Its Officers ..................................................................... . 48 Death in Relation to Torts
3.8.1 English Law ............................................................................ . 48 119
6.1 Cornmon Law ...................................................................................... ..
3.8.2 Indian Law ............................................................................. .. 50 120
6.2 Statutory Modifications ........................................................................ .
3.8.2.1 Historical Background ............................................ . 50 120
6.2.1 English Law ............................................................................ .
3.8.2.2 Sovereign Immunity .............................................. .. 52 121
6.2.2 Indian Law .............................................................................. .
3.8.2.3 Public Law Wrongs ............................................... .. 55 125
6.3 Damages Recoverable .......................................................................... .
3.8.2.4 Limitations of Sovereign Immunity ....................... . 67 125
6.3.1 For Loss of Dependency ......................................................... .
3.9 Foreign Sovereigns ............................................................................. .. 72 146
6.3.2 For Benefit of the Estate ........................................................ ..
3.10 Ambassadors ....................................................................................... .. 74
3.1] Minor .................................................................................................... . 75
3.12 Lunatic ................................................................................................ .. 78
Chapter VII
Discharge of Torts
Chapter IV 7.1 Waiver by Election .............................................................................. .. 153
Foreign Torts 7.2 Accord and Satisfaction ....................................................................... . 154
7.3 Release ................................................................................................. . 155
81
7.4 Acquiescence ....................................................................................... . 155
Chapter V 7.5 Judgment Recovered ............................................................................ . 156
Justification of Torts 7.6 Statutes of Limitation ......................................................................... ··· ]57

5.1 Acts of State ........................................................................................ .. 85

5.1.1 English Law ............................................................................ . ChapterVIH
85
5.1.2 Indian Law .............................................................................. . 87 Liability for Wrongs Committed by others
5.2 Judicial Acts ......................................................................................... . 91 8.1 Liability by Ratification ...................................................................... .. 159
5.2.1 English Law ............................................................................ . 91 8.2 Liability by Relation ............................................................................ . 160
5.2.2 Indian Law .............................................................................. . 93 8.2.1 Master and Servant ................................................................ ·· 160
5.3 Executive Acts ..................................................................................... . 96 8.2.1.1 Servant and Independent Contractor ...................... . 160
5.4 Administrative Acts ............................................................................. . 96 8.2.1.2 Liability of Master ................................................. .. 168
5.4.1 Acts of Governing Body ......................................................... . 98 8.2.1.3 Master's Right to Recover Damages from Servant. 188
5.5 Parental and Quasi-Parental Authority ................................................ . 98 8.2.2 Employer and Independent Contractor. ................................ ·.. 189
5.6 Authorities of Necessity ...................................................................... .. 99 8.2.3 Principal and Agent ................................................................ . 195
5.7 Statutory Authority .............................................................................. . 99 8.2.4 Company and Director .......................................................... .. 195
5.8 Inevitable Accident .............................................................................. . 102 8.2.5 Firm and Partner .................................................................... .. 195
5.9 Exercise of Common Rights ............................................................... .. 104 8.2.6 Guardian and Ward .............................................................. ·.. · 196
5.10 Leave and Licence-"Volenti Non Fit Injuria" ................................... . 105 8.3. Liability by Abetment .......................................................................... . 196

.
 xxxvi Law of Torts Arrangement of Subjects xxxvii
Page
Page
Chapter IX 11.3 False IInprisonment .............................................................................. . 276
Remedies 11.3.1 What Constitutes False Imprisonment... ................................ .. 276
9.1 Damages................................................................................................ 197 11.3.2 Who is Liable? ...................................................................... .. 279
9.1.1 Introduction ............................................................................. 197 11.3.3 Arrest by Public Officer ........................................................ .. 281
9.1.2 Causation................................................................................. 198 11.3.4 Arrest by Private Person ........................................................ .. 288
9.1.3 Remoteness.............................................................................. 204 11.4 Justification ......................................................................................... .. 289
9.1.3.1 Foreseeability.......................................................... 204 11.4.1 Expulsion of Trespasser ........................................................ .. 289
9.1.3.2 Intended Consequences ........................................... 208 11.4.2 Retaking of Goods ................................................................. .. 290
9.1.3.3 "Eggshell Skull" Cases ............................................ 208 11.4.3 Lawful Correction ................................................................. .. 290
9.1.3.4 Intervening Acts or Events: Novus Actus 11.4.4 Preservation of Public Peace .................................................. .
Interveniens ............................................................. 209 290
11.4.5 Statutory Authority ................................................................ .. 290
9.1.3.5 Mitigation of Damage.............................................. 216
11.5 Damages ............................................................................................... . 290
9.1.3.6 Further Examples..................................................... 217
9.1.4 Measure of Damages..... ......................... ................. ................ 222
9.1.4.1 General Principle ..................................................... 222 Chapter XII
9.1.4.2 Contemptuous, Nominal, Ordinary and Exemplary
Damages.................................................................. 224
Defamation
9.1.4.3 General and Special Damages ...... ...... ..... ....... ......... 228 12.1 General ................................................................................................ .. 293
9.1.4.4 Prospective and Continuing Damages ..................... 228 12.2 Distinction between Libel and Slander ............................................... .. 294
9.1.4.5 Damages for Mental Suffering and Psychiatric 12.3 Libel ..................................................................................................... .
Injury or Nervous Shock.......................................... 230 296
(i) False ........................................................................................ . 296
9.1.4.6 Damages in an Action for Personal Injuries ............ 236
(ii) In Writing ............................................................................... . 296
9.1.4.7 Injury to Property.................................................... 252
9.1.5 Interim Damages ..................................................................... 254 (iii) Defamatory ............................................................................ .. 297
9.1.6 Compensation under Section 357, Code of Criminal Defamatory Statement Must Refer to Plaintiff ................... .. 300
Procedure 1973... .............. ...... ................. ............... ..... ............ 255 Innuendo ............................................................................... . 302
9.1.6.1 Compensation to Rape Victims ............................... 257 Defamation of Deceased Person ......................................... .. 304
9.1.7 Provisional Award ................................................................... 257 Defamation of Class of Persons ........................................... . 305
9.1.8 Damages in Actions of Contract and of TorL........................ 258 Defamation of Company or Corporation ............................ .. 305
9.2 Injunction .............................................................................................. 258 Unintentional Defamation .................................................... .
9.3 Specific Restitution ............................................................................... 260 309
(iv) Publication .............................................................................. . 310
9.4 Joint and Several Tort-Feasors.............................................................. 260
12.4 Newspaper Libel .................................................................................. . 313
9.5 Contribution between Wrong-Doers ..................................................... 265
12.5 Slander ................................................................................................ .. 316
9.6 Remedies under the .......................................................... 267
12.5.1 English Law ........................................................................... .. 316
12.5.2 Indian Law ............................................................................. .. 319
Chapter X 12.6 Repetition of Libel and Slander ........................................................... . 322
of Torts 269 12.7 Defences ...................................................... ..........................................
322
12.7.1 Justification by Truth ............................................................. .. 322
Chapter XI 12.7.2 Fair and bonafide ................................................. .. 324
Trespass to Person 12.7.3 Privilege .................................................................................. . 328
12.7.3.1 ............. , ..... , .............. , ............. , .................. . 328
11.1 .......................................................................................... . 271 2.7.4 or 349
11.2 Assault and Battery ............................................................................. .. 272

7 tr
 xxxviii Law of Torts
Page Arrangement of Subjects xxxix
12.7.5 Apology .................................................................................. . 349 Page
12.7.6 Amends ................................................................................... . 350
14.4.3 Unlawful Means Cons-piracy ................................................ .. 400
12.8 Remedies for Defamation .................................................................... . 350 14.4.4 Interference with Trade, Business or Occupation by Unlawful
Means ..................................................................................... . 401
Chapter XIII 14.5 Rejection of Unified Theory of Economic Torts and Recognition of
'Causing Loss by Unlawful Means' as an Inde-pendent Tort.. ............ . 402
Malicious Proceedings Present English Law ............................................................. . 402
13.1 Malicious Prosecution .......................................................................... . 355
13.1.1 Nature of. ................................................................................ . 355 Chapter XV
13.1.2 Prosecution by Defen-dant ..................................................... . 356
362
Tort to Realty or Immovable Property
13.1.3 Termination of Pro-ceedings in Favour of Plaintiff ............... .
13 .1.4 Reasonable and Pro-bable Cause ............................................ . 363 15.1 Introduction ........................................................................................... 405
13.1.5 Malicious Intention ................................................................. . 369 15.2 Trespass to Land .................................................................................. . 405
13.1.6 Damage ................................................................................... . 371 15.2.1 General .................................................................................... 405
13.1.7 Damages ................................................................................. . 372 15.2.2 Aerial Trespass ....................................................................... . 408
13.2 Malicious Civil Proceedings ................................................................ . 373 15.2.3 Continuing Trespass ............................................................... . 410
13.3 Malicious Legal Process ...................................................................... . 374 15.2.4 Trespass by Joint-owners ....................................................... . 410
13.3.1 Nature of. ................................................................................ . 374 15.2.5 Trespass by Animals ............................................................... . 411
13.3.2 Malicious Arrest ..................................................................... . 375 15.2.6 Remedies ................................................................................. 414
13.3.3 Malicious Search .................................................................... . 376 Action for Trespass .............................................................. . 414
13.3.4 Malicious Process against Property ........................................ . 376 Defence of Property ............................................................. . 415
13.3.5 Procuring Erroneous Deci-sion of Court.. .............................. . 378 Expulsion of Trespasser ....................................................... . 416
13.3.6 Damages ................................................................................. . 379 Distress Damage Feasant ..................................................... . 416
] 3.4 Abuse of Legal Process ........................................................................ . 379 15.2.7 Defences ................................................................................. . 418
13.5 Misfeasance in Public Office ............................................................... . 380 15.2.7.1 Exercise of Easement and Prescription .................. . 418
15.2.7.2 Leave and Licence .................................................. . 418
Chapter XIV 15.2.7.3 Authority of Law .................................................... . 418
15.2.7.4 Acts of Necessity .................................................... . 420
Wrongs Relating to Domestic and Other 15.2.7.5 Self-defence ............................................................ . 420
Miscellaneous Rights 15.2.7.6 Re-entry on Land .................................................... . 420
14.1 Wrongs Relating to Domestic Rights ................................................... . 387 15.2.7.7 Re-taking of Goods and Chattels ........................... .. 421
14.1.1 Introduction ............................................................................ . 387 15.2.7.8 Abating a Nuisance ................................................. . 421
14.2 Interference with Subsisting Contract.. ................................................ . 388 15.2.8 Damages ................................................................................. . 422
14.2.1 General ................................................................................... . 388 15.3 Trespass ab initio ................................................................................. . 423
J4.2.2 Three Categories of Cases ...................................................... . 389 15.4 Dispossession ...................................................................................... .. 425
14.2.3 Conditions to be Proved ......................................................... . 391 15.4.1 Meaning of ............................................................................. . 425
14.2.4 Justification ............................................................................ . 391 15.4.2 Remedy ................................................................................... . 425
14.3 Intimidation .......................................................................................... . 393 15.4.3 Defences .................................................................................. 429
14.4 Conspiracy ........................................................................................... . 394 ] 5.4.4 Damages ................................................................................. . 429
14.4.1 General ................................................................................... . 394 15.5 Injuries to Reversion ............................................................................ . 429
396 15.6 Waste ............................................................... ................................ ... . 430
14.4.2 Conspiracy to Injure ............................................................... . , ,

15.7 Wrongs to Easements and Similar Rights ............................................ . 431

E
 xl Law a/Torts Arrangement of Subjects xli
Page
Page
15.7.1 General ..................................................................................... 431
15.7.2 Right to Support ..................................................................... . 432
Chapter XVII
15.7.2.1 Support of Land by Adjacent Land ........................ . 432 Torts Affecting Immovable as well as
15.7.2.2 Support of Buildings by Land ............................... .. 433 Movable Property
15.7.2.3 Support of Buildings by Buildings ......................... . 435
17.1 Slander of Title .................................................................................... .. 487
15.7.204 Support of Land and Buildings by Water.. ............. . 436
15.7.3 Riparian Rights in Natural Watercourses and Streams .......... . 17.2 Slander of Goods ................................................................................. .. 489
436
15.704 Artificial Watercourses ........................................................... . 17.3 Maintenance and Champerty .............................................................. .. 490
438
15.7.5 Surface Water ........................................................................... 439
15.7.6 Subterranean Water ................................................................. 440
Chapter XVIII
15.7.6.1 Pollution of Water, Air and Environment .............. . 441 Torts to Incorporeal Personal Property 493
15.7.7 Right to Access of Air ............................................................ . 446
15.7.8 Right of Access to Light... ...................................................... . 447 Chapter XIX
15.7.9 Right of Way .......................................................................... . 452 Negligence and Allied Topics
15.7.10 Right of Privacy and Confidentiality ..................................... .. 459
15.7.11 Right of Prospect .................................................................... . 19.1 Negligence in General. ........................................................................ .. 496
469
15.7.12 Profits a Prendre ............... ...................................................... 19.1.1 Meaning of Negligence ......................................................... .. 496
~
469
15.7.12.1 General .................................................................... 19.1.2 Existence of Duty .................................................................. .. 499
469
15.7.12.2 Right of Common ................................................... . 19.1.2.1 Conditions for Existence of Duty ........................... . 499
469
15.7.12.3 Right of Ferry ........................................................ .. 19.1.2.2 Summary of Discussion .......................................... . 520
471
15.7.1204 Right of Market ..................................................... .. 19.1.3 Breach of Duty ...................................................................... .. 521
472
19.1.4 Illustrations ............................................................................ .. 524
19.2 Strict Liability ..................................................................................... .. 529
Chapter XVI
19.2.1 Rationale of Strict Liability .................................................... . 529
Torts to Personality or Movable Property 19.2.1.1 Rule in Rylands v Fletcher .................................... .. 530
16.1 Trespass to Goods ............................................................................... .. 473 19.2.1.2 Exceptions to the Rule in Rylands v Fletcher ....... .. 542
16.2 Conversion ..... " ................................. .................................................. .
~
476 19.2.2 Rule in MC Mehta v VOL .................................................... .. 546
16.2.1 General .................................................................................... 476 19.3 Occupiers of Premises .......................................................................... . 549
16.2.2
Conversion by Taking ........................................................... .. 477 Occupier ............................................................................................... . 549
16.2.3
Conversion by Parting with Goods ........................................ .. 477 Degree of Care ..................................................................................... . 549
16.2.4
Conversion by Sale ................................................................ .. 478 19.3.1 Introduction and the Occupiers Liability 1957 .............. .. 549
16.2.5
Conversion by Keeping .......................................................... . 479 19.3.2 Visitors ................................................................................... . 552
Conversion by Destruction .................................................... ..
16.2.6 482 19.3.3 Activity Duty .......................................................................... . 557
16.2.7
Conversion by Denial of Right... ........................................... .. 482 19.3.4 Trespassers ............................................................................. . 558
16.2.8
Distinction between Trespass and Conversion ...................... .. 482 19.3.5 Children .................................................................................. . 561
16.2.9
Action for Conversion ........................................................... .. 483 19.3.6 Persons Lawfully Passing by the 561
16.2.9.1 Who can Sue? ......................................................... . 483 19.3.7 Railway Level Crossing ........................................................ .. 564
16.2.9.2 Defences ................................................................. . 483 19.3.8 Invitation to Alight at a Railway Station ................................ . 567
16.2.9.3 Damages ................................................................ .. 484 Persons in Charge of Children ............................................................ .. 569
16.3 Detention ............................................................................................... 485 1904 Persons Professing to have Greater Skill ............................................. . 570
1904.1 Directors of Companies ......................................................... .. 570

n
xlii Law of Torts
Page Arrangement of Subjects xliii
19.4.2 Carriers .................................................................................. .. 571 Page
19.4.2.1 Carriers of Goods ................................................... .. 571 20.3 Highways ............................................................................................. . 661
19.4.2.2 Carriers of Passengers ........................................... .. 573 20.4 Distinction between Injury to Property and Physical Discomfort.. ..... .. 662
19.4.3 Innkeepers and Hotelkeepers .................................................. . 577 20.5 Injury to Property ................................................................................ .. 664
19.4.4 Physicians and Surgeons ....................................................... .. 581 20.5.1 Trade ....................................................................................... . 664
19.4.4.1 General Principles .................................................. . 581 20.5.2 Sewers, Drains, etc ................................................................ .. 665
19.4.4.2 Treatment of Patients Incapable of Giving Consent 587 20.5.3 Trees ....................................................................................... . 666
19.4.4.3 No Team Liability ................................................. .. 591 20.5.4 Nuisance due to Smoke ......................................................... .. 666
19.4.4.4 Some More Examples ............................................. . 592 20.6 Physical Discomfort ............................................................................. . 666
19.4.4.5 Euthanasia ............................................................... . 594 20.7 Who can Sue for Nuisance? ................................................................ .. 671
19.4.5 Solicitors ................................................................................. . 595 20.8 Who is Liable for Nuisance? ............................................................... .. 672
19.4.6 Counsel ................................................................................... . 597 20.9 Remedies .............................................................................................. . 675
19.4.7 Bankers ................................................................................... . 598 20.10 Burden of Proof ................................................................................... .. 679
19.4.8 Manufacturers, Repairers and Builders .................................. . 601
19.5 Keepers of Dangerous Animals ........................................................... . 605 Chapter XXI
19.5.1 Animals Ferae Naturae ........................................................... . 606
19.5.2 Animals Mansuetae Naturae .................................................. .. 607 Fraud and Negligent Misstatement
19.6 Dangerous Goods ................................................................................ .. 610 21.1 Fraud or Deceit. .................................................................................... . 681
19.6.1 Fire .......................................................................................... . 610 21.2 Fraud by Agent .................................................................................... .. 690
19.6.2 Firearms .................................................................................. . 613 21.3 Malicious Falsehood ........................................................................... .. 693
19.6.3 Fire-works and Explosive Materials ...................................... .. 614 2].4 Negligent Misstatement ....................................................................... . 694
19.6.4 Poisonous Drugs ..................................................................... . 615 Summary 701
19.6.5 Other Dangerous Articles ....................................................... . 616 Subject Index 811
19.7 Contributory Negligence ..................................................................... .. 618
19.7.1 General Principles .................................................................. . 618
19.7.2 Contributory Negligence of Children .................................... .. 626
19.7.3 Choice of Evils ....................................................................... . 627
19.7.4 Rescue of Third Person ......................................................... .. 628
19.7.5 Imputed Contributory Negligence ......................................... .. 629
19.8 Breach of Statutory Duties .................................................................. .. 631
19.9 Master's Liability to Servant... ............................................................ .. 637
19.10 Burden of Proof in Actions of Negligence ........................................... . 645
19.11 Contracting out of Liability for Negligence ........................................ .. 653
19.12 Negligent Misstatement ...................................................................... .. 654

Chapter XX
Nuisance
20.1 General ................................................................................................. . 655
20.2 Public, General or Common Nuisance ................................................ .. 656
20.2.1 Private Nuisance ..................................................................... . 659
 CHAPTER!

GENERAL PRINCIPLES

SYNOPSIS
1.1 The Law of Tons in India ......... 1 1.3 Constituents of Ton.................. 13
1.2 Nature of Ton ...........................
4 1.3.1 General......................... 13
1.2.1 Definition of Tort ......... 4
1.2.2 Tort and Contract ........ 1.3.2 Wrongful Act................ 14
5 1.3.3 Damage......................... 15
1.2.3 Tort and Quasi-Contract 10
1.2.4 Tort and Crime ............ 1.3.4 Remedy......................... 22
11
1.4 General Principle of Liability..... 23

1.1. The Law of Torts in India

Under the Hindu Law and Muslim Law, tort had a much narrower conception than
the tort of the English law. I The punishment of crimes in these systems occupied a more
prominent place than compensation for wrongs. 2 The law of torts as administered in
India in modern times is the English law as found suitable to Indian conditions and as
modified by the Acts of the Indian Legislature. 3 Its origin is with the
establishment of British Courts in India.

The first British Courts established in India were the Mayor's Courts in the three
presidency towns of Calcutta, Madras and Bombay. These courts were established in the
eighteenth century, and the charters which established them required them "to give
judgment and sentence according to justice and right".4 Englishmen administering
justice in these courts normally drew upon the common law and statute law of England
as found suitable to Indian conditions while deciding cases "according to justice and
right". This led to introduction in these courts' jurisdiction of the English common

1. Priyanath Sen, Hindu jurisprudence, p 336; Kashi Prasad Saxena, Hindu Law and jurisprudence, pp 170,
171; Abdul Rahim, Muhamadan jurisprudence, p 360; Ramaswamy Iyer's Law of Torts, 7th Edn,
(1975), Appendix, pp 591, 592.
2. Priyanath Sen, Hindu jurisprudence, p 336.
3. Setalvad, The Common Law in India, plIO. Sir Frederick Pollock prepared a draft code of torts for
India but it was never enacted into law; see 5 LQR 362. Vidya Devi v MP. State Road Transport
Corporation, AIR 1975 MP 89: 1974 AC] 374 (378). The Indian Law of TortS based on English law is
continued by Article 372 of the Constitution which has been interpreted to continue also the Common
Law Principles applied in India; Setalvad, The Common Law in India, pp 225, 226; Building Supply
Corporation v UOI, AIR 1965 SC 1061 (l068) : (1965) 2 SCWR 124: (1965) 2 SCA 68: (1967) 2
SCR289.
4. Letters Patent of 24 September, 1726, the 13th year of the Reign of George 1.

. . . . . .__________________
~h_·
11: _________
 Chapter I Chapter I
Law of TortI General Principles
2 3
5 Furt?er, in applying the English law on a articular' .
statute law in force at the time insofar as it was applicable to Indian circumstances. The
:s 1s
restncted to the common law Th E j' hlP . pomt, the IndIan courts are not
Supreme Courts were established sometime later in those three towns and which law and the Indian courts can' see tngh ;w conslIsts both of common law and statute
b d ow lar a ru e of com 1 h b .
replaced the Mayor's Courts were modelled on the English pattern and had such mo~ aw as een modIfied
0
or a rogate by statute law of En 1 d If h
jurisdiction and authority as court King's Bench had in England by the common or modifYing the common law g an. : e new rules of EnglIsh statute law replacing
law of England. The Supreme Courts were superseded by High Courts in those three . are more m consonance w'th" .
consCIence, it is open to the courts i I d' . h 1 JuSt!ce, equity and good
towns, but the jurisdiction to administer the English common law was continued. The and to apply the new rules It i n ~.la to re)~ct t e outmoded rules of common law
law of torts is a part of the common law, and it was thus that the English law of torts statute, the Law Reform (Cont~b~~ t Is~earOn1!lg, that the principles of the English
came to be applied in cities of Calcutta, Madras and Bombay. But the common law India although there is still no co oryd' eg~gence) Act 1945, have been applied in
reasoning was also applied in foIl rre~ponh mg . c~ enacted by Parliament in India.
so applied by the High Courts of Calcutta, Madras and Bombay is applied only by those 13

courtS in the exercise their ordinary original civil jurisdiction as distinguished from the Supreme Court Rules (Engl~~)ng t de pn~Clples ~f rules 9 to 18 of Order XXIX of
".vLH.. "~"'.~. jurisdiction, that is, the jurisdiction to hear appeals from decrees of mofussil
Justice Act 1920 to enable the c s rna de u~ er .seCtlon 20 of the Administration of
courts. As regards other courts in India, there is no express provision for the administration , oun to or er 1!ltenm paym' .
there are no statutory rules co d' h ent III a tort actIOn, although
the English common law. These courts have been established by Acts almost all local, similar reasoning the Nagpur ~~shPoCn mg t°fut e aforesaid rules in 14 And on
and the Acts establishing them contain each a section which requires them, in the absence .' Ig oun re sed to apply th d . f
emp1oyment lllsofar as it was ab d' E I e octnne 0 common
of any specific law or usage, to act according to "justice, equity and good conscience".6 rogate m ng and by the E 1 ' L' b'l'
188 0 even before the enactment f h d' mp oyers la I lty Act of
The expression "justice, and good conscience" was interpreted by Privy Council · 0 t e correspon Il1g Employ , A b
Ind Ian Legislature in 1938 15 0 th h h d ers ct y
to mean "the rules English law if found applicable to Indian society and the rule enacted in the Englis~ e ot er h a~, the Allahabad High Court has held
circumstances"? The law as stated above is also the law to be administered by each of the9
8 feasors) Act 1935, that although i:t~tute, .tble aW .Reform (Married Women and Tort
High Courts in India in the exercise of its appellate jurisdiction. It has also been held L h IS POSS! e to b nng separate t' '. .
leasors, t e sums recoverable unde th . d b ac IOns agamst Jomt tort-
that section 9 the Code of Civil Procedure 1908, which enables a Civil Court to try r ese)u gments y way of d .
aggregate to exceed the amount of th d d amages are not m the
all suits of a civil nature, impliedly confers jurisdiction to apply the law of Torts as . e amages awar ed by the )' ud fi"
10 111 consonance with any principl f'" gment ust given IS not
principles of justice, equity and good conscience. . e 0 JustICe eqmty and go d . d .
applicable in India 16 I tho . . '. 0 conSCIence an IS not
.. . n IS context It IS also wise to rem b - h h E l'
The law of tortS or civil wrongs in India is thus almost wholly the English law which is 1aw Itself .
IS imbued with flexibil'ty
. 1
d'
an capaCIty to adapt itself
em e, t at t e ng Ish common
..
administered as of justice, equity and good conscience. The Indian courts, courts III our countty need not h' to new SituatIOns and
however, before applying any rule of English law can see whether it is suited to the have no authority to take a pro c~~ry t. e noAtlon that in applying the common
gresslve vIew. s stated by Lord Scarman:
Indian society and circumstances. 1! The application of the English law in India as rules
12 The common Iaw, w h'ICh 111 . a constitutional
justice, and good conscience has, therefore, been a selective application. . ..
covers everything which is not c .d b context means JudICially developed equity
. Th fi ovele y statute It knows no gap h b· ,
omISsus. e unction of the court is t d 'd h . b s: t ere can e no casus
. h 0 eCI e t e case efore it even tl h h d ..
reqUIre t e extension or adaptation f .. I ' ' lOug t e eCISlOn may
5. Setalvad, The Common Law in India, pp 12, 13; Advocate General of Bengal v Ranee Surnomoye Dossee, 0 a pnnclp e or 111 some case th . t-
meet t he justice of the case B h h . s e creanon 0 a new law to
(1863) 9 MIA 387 (426, 427). . . . ut w atever t e court deCides t d ' L: b
6. For example, section 6 of the Central Provinces Laws Act 1875. eXIstmg principle and seeks a sit' . . 0 0, It starts !rom a ase-line of
. 0 u Ion conslstent with or ana! . . I
7. Waghela Rajsanji v Shekh Masludin, (1887) 14 IA 89, 96; ILR (1887) 11 Bom 551 (561): Baboo Thakur recognIsed. The real risk to the com I' . ogous to a pnnctp e or principles
kn I mon aw IS not ItS movement t '.
Dhobi v Mst. Subanshi, (1942) Nag LJ 199: ILR (1942) Nag 650: AIR 1942 Nag 99; Vidya Devi v MP new ow edge but lest it should stand still halted b . 0 ~o~e~ new situations and
State Rov Vardesh Chander, AIR 1976 SC 588 (597) : (1976) 2 SCC 103: (1976) 2 SCR 906 has held should happen, there would be a dan f h 1 b
a co~sen:atlve JUdICial approach. If that
that in free India principles of justice, equity and good conscience should not be equated to English and inept in its treatment of m d ger'al° t e ! aw ecom111g Irrelevant to the consideration
o ern SOCI pro b ems J t' ld b d f, ,
Law. The ruling in Rattanlal's case was given in the context of necessity of notice for forfeiture of a lease :aw has, however, avoided this catastrophe by the' fl uS.~~~ wo~ e e eared. The common
and not in the context of application of the English Law of torts. Rattanlal's case cannot be taken to Judges. 17 eXl I Ity given to it by generations of
have forbidden the application of the English Law of torts as is found suitable to Indian conditions
whic~ came to be introduced in India during the British period as principles of justice, equity and good
conSClence.
S. As to Calcutta, Madras and Bombay, see, Letters Patent, clause 21; as to Allahabad, Patna, Lahore and 13. Vidya Devi v MP State Road T C '
Singh, J). ransport orporatzon, AIR 1975 MP 89 : 1974 ACJ 374 (378, 379). (GP
Nagpur, sec, Letters Patent, clause 14.
9. Union Carbide Corporation v UOI, 1988 MPLJ 540. 14. Union Carbide Corporation v UOI, 1988 MPL] 540.
10. The whole of this para with only a little variation has been adopted by Seth, J, in Union Carbide 15. Secretary ofState v Rukhminibai, AIR 1937 Na ur 354· ILR I
Corporation v UOl, 1988 MPLJ 540. 16. ~au:al.Kishore v Rameshwar, AIR 1955 All 59~P 596 Th (?38) Nag 54: 174 IC 40l.
11. See, the observations of Krishna Aiyar, J., in the context of the tort of conspiracy in Rohtas Industries
Ltd. v Rohtas Industries Staff Union, (1976) 2 SCC 82 (93) : AIR 1976 SC 425-"We cannot
ClVlI Liability C,ontribution Act, 1978. See p 26i pos;.· e law 111 England was also later altered by the
17. Mcloughlm v O'Brian (1982) 2 All ER 298 (31 ) (
incorporate English torts without any adaptation into Indian Law." House of Lords judici~Ily modified the comm ~: 1~83~ 1 AC 410: .(1982) 2 WLR 982 (HL). The
12. Gujarat State Road Transport Corporation v Ramanbhai Prabhatbhai, (1987) 3 SCC 238 : AIR 1987 SC on aw ru e t at money paid under mistake of law cannot
1690. [Footnote No. 17 Contd.]
4 LawafTorts Chapter I
Chapter I Genera! Principles 5
an compensation is recoverable. The basic
owes an absolute and non-ldeJlegab.!e should be harmed by acts of others.
an occasion arises the court can be more progressive
w~ich is implie~ly imposed under law. 22 In spite of various
the English Courts and can evolve a new principle of tort not yet accepted by
sat1sf~~tory. defimtlOn of the word tort still awaits its master. To
the English law. In the words of Bhagwati, CJ:
definItIon ll1 g~neral terms, a tort may be defined as a civil wrong Inlc1el)elld<:nl
We have to evolve new principles and lay down new norms which will adequately deal with contract is an act·IOn 101
. .1. . for which L .
ULUH1UJ'Ud
new problems which arise in a highly industrialised economy. We cannot allow our judicial ClVl ll1J.ury which an action for will not lie is not a tort,
thinking to be constricted by rderence to the law as it prevails in England or for the matter of
for w~1C.h no action damages by a member of
that in any foreign counny. We are certainly prepared to receive light from whatever source it
corr:mmll1g a ~ort 0: !s
w.rong called a tort-feasor or wrong
comes but we have to build our own jurisprudence. 19

More recently, ],
tortlOUS act·
2
1
~e pnnClpal al.m ,of the law of torts is compensation of victims
~ he general pnnClple for award of dama~es in tortious is
speaking entire law of torts is founded and structured on morality that no one has a compensatory. - grant of exemplalY damages 6 in certain cases will
right to injure or harm others intentionally or even innocently. Therefore, it would be primitive deterrence of wrong-doers is al·m Iaw 0 f torts.
to class strictly or close finally the ever-expanding and growing horizon of tortious liability. Even
for social development, orderly growth of the society and cultural refinenes5 the liberal approach
20 1.2.2 Tort and Contract
to tortious liability by courts is more conductive.
There is a well-marked Ul~,UlJlO:;(jon betwet:n A
1.2. contract is founded upon consent: a tort is consent. An
action for breach of contract necessitates privity

22. P Lflkshmanan v The Executive Ofr:;cer, Amlmi(Tu "'ama.iim'a S'

J'h JJ' '" " zvagami A m bcd Thirukoi/, Pana(ludz~
The term tort IS the French equivalent of English word 'wrong' and of the Rau, apuram Taluk (2015) 1 LW72: (2015) 149AIC369. "
23. Some other definition;,; are given below:.-
Roman Law term 'delict'. It was introduced into the English law by Norman
'tort' is from the Latin term tortum which means to twist, and implies "Tortious !!ability arise~ from th.c breach of a duty primarily fixed by law; this
gel:erally and Its breach IS redresslble by an action for unliquidated damages.".
conduct which IS or tortious. 21 It now means a breach of some duty, on fort, (12th Edn, 1984), p 3. '
contract, giving rise to a civil cause of action and for which A tor~ is "a civil wrong for which the remedy is a common law action for
w~lCh IS n,?t exclUSIvely the breach of a contract or the breach of a trust uo"r"'oYt"h""e"·r" Leu
o !ganon. Sal~~nd & Heuston, Law (1992), 20thEdn, pp 14, 15.
In hiS Law I") ~ :! . I
[Footnote No. 17 Contd.] tort':- . or Iorts (l5t!1 Ed n, pp ) S·Ir trel enc ( Pollock thus sums up the normal idea of
be recovered back by holding that levies and taxes paid to a local authority under ultra vires regulations
can be recovered back as of right. In holding 50 Lord Goff who delivered the leading speech for the . tort is an act or omission (not being the breach of a OLlt of a
relation, or undertaken by contract) which is l'n one of'th e ways to h arm \HlClIlmrU!
majority was aware of the existence of a boundalY separating legitimate development of the law by the . . f."
mrer er.ence WIth an absolute right, whether there be measurable actual damage or not) suffered
judges from legislation. But he said that that boundary was not firmly or clearly drawn and varied from determmate person:- '
case to case otherwise a number of leading cases would never have been decided the way they were. Lord
Goff was also conscious that however compelling the principle of justice "it would never be sufficient to (a) :t may be an act which, without lawful justification or excuse, is intended by the aGent to
l.ause harm, and does cause the harm complained of. to
persuade a government to promote its legislative recognition by parliament; caution, otherwise known
as the Treasury, would never allow this to happen." The case illustrates the extent to which the English (b) It may be an act in itself contrary to law, or an omission of specific which causes
harm not mtended by the person so acting or omitting.
judges can go to reform the common law: 1)(7oolwich Building Society v Inland Revenue Commissioners
(No.2), (1992) 3 All ER 737: (1993) AC 70: (1992) 3 WLR 366 (HL), pp 760,761, 763. The Indian (c) I~ ma~ be an act vlOlat111g an absolute right (esp,ecially r~ghts of possession or property), and
t. eare. as wrong~l Without regard to the actor s Il1tennon or knowledge. This, as we have
law had back taken that view. See, footnote 65, p II.
18. MCMehta v AIR 1987 SC 1086: (1987) 1 SCC 395, P 420: (1987) 1 ACC 157. seen, IS an artifiCIal extensIOn of the general conceptions which are common to English and
Roman Law.
19. MC Mehta v UOJ; AIR 1987 SC 1086: (1987) 1 SCC 395, P 420: (1987) 1 ACC 157. The development
of the common law in our country need not be always on the same lines as in England for the (d) It may be an act or omission causin~ harm which the person so actmg or omitting to act did
conditions in the two countries are not the same. As recently observed by the Privy Council: "The not llltend to c~use, but mlg~t and SHould with due dIligence have foreseen and prevenred.
ability of the Common law to adopt itself to the differing circumstances of the countries where it has (e) l~ may, !ll s~eClal cases, CO~lSj~t merely 111 not avoidmg or preventing harm which the ar
VIas bo~?d, absolutely or WIthIn Irmlts, to avoid or prevent.". p ty
taken root is not a weakness but one of its strengths" : Invermrgill City Council v Hamlin, (1996) 1 All
. N.B. The definltlons of Ton as given by WInfield and Salmond were quoted by the Su reme Court
ER 756, P 764: (1996) AC 624: (1996) 2 WLR 367.
111 Jay Lc=n: Salt Works (P) Ltd. v State of Gujarat, (1994) 3 JT 492, P 501 : (1994) 4 scc / Definitions
20. Jay Laxmi Salt Works (P) Ltd. v State ofGujarat, (1994) 4 scc 1 : JT 1994 (3) SC 492, p 50l.
from JOWltt s Dzctzonary ofEngltsh Law and Winfield were quoted in Common Cause aRe stered S .
21. The first reported use of the word tort is in Boulton v Hardy, (1597) Cro. Eliz. 547, 548 : Salmond and
v UOl, (1999) 5 ]T237, p 273: AIR 1999 SC 2979, P 3004: (1999) 6 SCC 667. ' gt octety
Heuston, Law afTorts, 20th Edn, (1992), footnote 54. Also see, UOI v Sat Pal Dharam Vir, AIR 1969 24. G WIllIams, The Aims ofthe Law of Torts, (1951) 4 Current Legal Problems 137
J & K 128 (129) : 1969 Kash LJ 1; Common Cause, a Registered Society v UOL (1999) 5 JT 237, P 273 : 25. Moms Garner /) One Step (Support) Ltd., [2018] UKSC 20. ' .
AIR 1999 SC 2979, P 3004: (1999) 6 SCC 667. 26. Chapter IX, title 9.1.4.1, p 222.

b
 Chapter I Chapter I General Principles
6 Law of Torts 7

privity is needed. A tort must also be distinguished from a pure breach of contract. First, and the surgeon, but none between the son and the surgeon. The therefore,
a tort is a violation of a right in rem, ie, of a right vested in some determinate person, sue the surgeon under the law of contract, but the son can sue the surgeon in
32
either personally or as a member of the community, and available against the world at tort. In the celebrated case of Donoghue v Stevenson,}3 a manufacturer who
large: whereas a breach of contract is an infringement of a right in personam, ie, of a right substandard article to a retailer who sold it to a customer was held liable to a friend of
available only against some determinate person or body, and in which the community at the customer who after consuming it became ill. The was under a
large has no concern. The distinction berween the two lies in the nature of the duty that contractual duty to the retailer and was in breach of that but he also owed a m
is violated. In the case of a tort, the duty is one imposed by the law and is owed to the tort to take reasonable care not to harm the consumer.
community at large. In the case of a contract, the duty is fixed by the will and consent of The aforesaid distinctions between law to tort and the law
27
the parties, and it is owed to a definite person or persons. Thus, if A assaults B, or contract though fundamentally sound are getting in certain areas.
damages B's property without lawful cause or excuse, it is a tort. Here the duty violated normally a duty in tort is independent of any consent or agreement and is
is a duty imposed by the law, and that is the duty not to do unlawful harm to the person the,re are ~ases wherein some SOft of prior consent or agreement on the part of the
or property of another. But if A agrees to sell goods to B for a price, and either party fails d~f~nda~t IS necessary. The more onerous duty of care owed an occupier to visitors 34 as
to perform the contract, the case is one of a breach of contract. Here there is no duty dlstmguished from the duty owed to trespassers is to the
owed by A except to B, and none owed by B except to A. The duty that is violated is a visitor to enter upon the occupier's premises.
specific duty owed either party to the other alone, as distinguished from a general advised by a gratuitous advisor, is placed in such a
duty owed to the community at large. Secondly, in a breach of contract, the motive for rely upon his judgment or skill, has been described as
breach is immaterial: in a tort, it is often taken into consideration for ascertainment dependant upon the advisor's agreeing to give in
of amount of Thirdly, in a breach of contract, damages are only as a measure 35
absence of consideration there would be a contract. An OC(;U!='ler
of compensation. In an action for tort to the property, they are generally the same. But above also furnishes an example of a tort which
where the injury is to the person, character, or feelings, and the facts disclose improper whether or not the agreement amounts to contract. In £urJu,uwn
motive or conduct such as fraud, malice, violence, or the like which aggravate Ltd,36 it was held an of can restrict or exclude anv
the plaintiffs injury, he may be awarded aggravated damages. Exemplary damages to otherwise incur to any of his including his W--:f'/,lllhICIHX
punish the defendant and to deter him in can also be awarded in certain cases in made known to the W,A_HO''-'-.

tort but rarely in contract. 28 A clause in a contract limiting the liability cannot be relied that in contract the duties are the m
29
upon by a person who is not a party to that contract and incurs liability in tort. standard form agreements and of contracma! terms
Another distinction that may be mentioned is that the law of torts is aimed at allocation large extent the of the under a contract. 37
UH:VCllU.Ull of losses whereas the law of contract aims to see that the promises made
In the same context it may be rm,<p,mp'rl that the
a contract are performed.
the like a tort comes into
In several situations, the same act may amount to a tort and also a breach of contract.
Persons, such as carriers, solicitors, or surgeons, who to discharge certain 32. GladwelllJ Steggall, (1839) 5 Bing NC 733: 8 L]CP 361. But, see, Klaus Mittelbachert lJ The East India
duties and voluntarily enter into contracts for the due performance thereof, will liable Hotels Ltd., AIR 1997 Del 201, 230 (It was held that beneficialY to the contract can also sue in contract).
30 33. Donoghue v Stevenson, (1932) 562: 48 TLR 494 (HL). This case the of
for neglect or unskillfulness either in an action for a breach of contract or in tort to a
co.mfact fallacy" th~t if A undertook a contractual obligation towards B, non-performance or
party to the contract or in tort only to a person who is not a party to the contract but mIs-performance of that obligation resulted in damage to C, then C could not sue A unless he could
who suffers an The breach of such contracts amounts also to a tort because such show that A had undertaken towards him the same obligation as he had assumed towards B. Sec,
persons would be equally liable even if there was no contract as they undertake a duty Salmond &. Heuston, LawafTorts, 18th Edn, (1981), p 9.
independently of any contract. Similarly, an act of inducing breach of contract is 34. 'Visitors' under the Occupiers' Liability Act 1957 are those persons who would at common law be
tl'eared as invitees or licensees.
considered a tort under English law?l A father employs a surgeon to attend on his son. 35. Hedley Byrne &C'o. v Heller and Partnm Ltd., (1964) AC 465 (530): (1963) 3 WLR 101: (1963) 2 All ER
The son is injured by unskilful treatment. Here there is a contract between the father 575. '
36. Ashdown v Samuel Williams & Sons Ltd., (1957) 1 QB 409: (1957) 1 All ER 35.
37, "Due to change in political outlook and as a result of economic compulsions, the freedom to contract is
27. See, Jay Laxmi Salt Works (P) Ltd. v State ofGujarat, (1994) 4 scc 1 : (1994) 3 JT 492, P 500 : 1999
now bell1g confined gradually to narrower and narrower limits"; IS o' W Products v State ofMadras AIR
ACJ 902: see also, Morris Garner v One Step (Support) Ltd., [2018] UKSC 20.
1968 SC 478 (484, 485) : (1968) SCWR 808 : (1968) 1 SCR 479. See further, similar observati;ns in
28. Rookes v Barnard, (1964) AC 1129 (1221) : (1964) 2 WLR 269: (1964) 1 All ER 367 (HL): Cassell and
,?may v CityofLond~n R.eal Property, (1982) 1 All ER 660 (660) (HL) (Lord Hailsham LC).
Co Ltd v Broome, (1972) AC 1027: (1972) I All ER 601 (HL).
38, A contract ~s an oblIgation ,attached by the mere force of the law to certain acts of the parties." Hand,
29. Midland Silicones Ltd. v Scruttons Ltd., (1960) 2 All ER 737: (1961) 1 QB 106: (1960) 3 WLR 372 :
104 S] 603, confirmed in (1962) 1 All ER l.
J, 111 HotchkISS v NatIonal Czty ~tlnk, (l ?Il) 200 Fed. 287: Hohfeld, Fundamental Legal Conceptions,
(edited by W. W. Cook), P 31. It IS a mIsconceptIOn to say that obligations arising under a contract are
30, See, text and notes 43 to 52, pp 8-9,
created by the partIes and not by the law. Parties merely settle the terms of a contract,
3 J. AMT Futures Ltd, lJ Marziflier, Dr Meier & Dr Guntrler Rechtsanwaltsgeselischfifi; mbH, l2017J UKSC 13
: [2017] 4 ALL ER 382. [Footnote No. 38 Contd.]
8 Law of Torts Chapcer I Chapter I General Principles 9
Another that may be noticed is that although at the initial stage a duty in
will now be in the same position as solicitors. 47 In Caparo Industries Pic v Dickman,48
tort is towards persons generally but after there is a breach of that duty, the duty to
Lord Bridge in the context of an auditor observed:
pay compensation in tort is like a duty in contract owed to a determinate person or
persons. In adviSing. the client who employs him the professional man owes a duty to exercise that
standard of skill and care appropnate to his professional status and will be liable both in contract
In the days preceding the rise of contract a person pursuing a "common calling", ie, a and In tort for all losses which his client may suffer by reason of any breach ofthat duty.49
farrier, a smith, an inn-keeper, a surgeon and a common carrier was liable in damages for
failure to exercise that skill which was normally expected from persons pursuing that . Mter referring t~ th,:;e. obs~rv~tions th.e Court of Appeal in a case relating to an
calling and though later it became possible for one who entered into a contract with 1I1surance .broker said: 1 hiS prmclple applIes as much to insurance brokers or to those
these persons to sue them in contract, a separate action in tort for breach of the duty who exerCls~ any ~t~er pro~essl~n~l c~lling and to other professional activities which they
imposed on them by law survived giving rise to concurrent remedies in tort and carty on besides glVlng advlCe. 1he Judgment of Oliver ], in Midland Bank Trust Co Ltd
contract?9 Another distinction that was drawn was between damage to property or v Hett Stubbs & Kemp (a firm), 51 met the appreciation and approval of the House of Lords
person and economic loss; the former was thought to be more concerned with tort and in Henderson v Merrett Syndicates Ltd,52 where Lord Goff observed:
the latter with contract. 40 The list of professions comprised in "common calling" was not J>:s a matt:!' of principle it is difficult to see why concurrent remedies in tort and contract, if
extended to cover comparatively new professions such as stock-brokers, solicitors and avallab!e agamst the medICal profession should not also be available against members of other
42 professIOns whatever form the relevant damage may take. 53
architects,4i who were held liable to their dients only in contract and not in tort.
Many decisions have removed these anomalies and the rule emerging is that if the In cases "arising out of contract equity steps in and tort d .
r bT h - over an Imposes
plaintiff would have had a cause of action in tort had the work been performed without la 11ty upon t e defendal:t ~or ,un~uantified damages for the breach of the duty owed
any contract, eg, gratuitously, the existence of the contract does not deprive him of that by the defe~~ant to rhe. pl;mnff. saId the Supreme Court in Manju Bhatia (Mrs.) v New
remedy.43 It is now accepted that there may be concurrent contractual and tortious Delhz ~untClpal Counc:1. In thiS case, a builder sold flats in a building, top four floors
duties owed to
44
same plaintiff who has a choice of proceeding either in tort or o~ w~lCh were demolIshed by the Municipal Council as were constructed in
contract except when he must rely on a specific term of the contract as distinct from VIOlatIon ~f the Building Regulations, The purchasers of the flats which were demolished
any duty of reasonable care implicit in the particular relationship brought about by the were not Illforme~ of the illegality by the builder. Supreme Court held that each
45
contract in which case he has to depend on his contractual daim. Thus, it purchase.r was entitled to return .of the amount paid by him plus the escalation charges
has now been held that a is liable both in tort and contract to his client for and havmg regard to all the CIrcumstances each owner was allowed to receive
negligent advice.
46
other professional men like stock-brokers and architects Rs.60,OO,O?OI- (Sixty lakhs) ~rom the builder. This case can be to be an authority
on t~e s~bJect that damages III tort can be allowed against a builder too. However, the
DelhI Hlgh Court .has ruled that if damages can be recovered establishing a breach of
[Footnote No. 38 Contd.]
statute, then that IS the sole remedy available. this it is held
contract, but the obligation to carry out the terms arises from section 37 of the Indian Contract Act,
there can be no claim in tort for fraud, since that under section 19 of
Contract Act. 55
1872 which enacts that parties to a contract must either perform or offer to perform their respective
promises, unless such performance is dispensed with or excused under the provisions of this Act or of
any other law" : Mis Shri Ganesh Trading Co, Saugar v State ofMadhya Pradesh, 1972 MPLJ 864 (FB),
p 883 (GP Singh, J)
An exemption clause in a contract will also be available to m a tort
39. Street, Torts, 6th Eda, pp 210, 211. For example, see, Heren II (1967) 3 All ER 686 (common carrier); action provided it is widely worded and specifically excludes or the liability for
Constantine v Imperial Hotel<, (1944) 2 All ER 171 (Inn Keeper) : 1994 KB 693; Fish v (1948) 2 dam~ges ~ue. to negligence. 56 A concurrent or alternative in tort will not
All ER 176 (Doctor). admitted If Its effect would be to permit the plaintiff to circumvent or escape a
40. Fleming, Law of Torts, 6th Edn, p 168. Everyone owes a duty not to damage another's person or
property hence a cleaner who was employed by the plaintiff to clean his chandelier and who negligently
allowed it to drop from the ceiling was held liable in tort although cleaning was not a common calling; 47. fagot v Stf!IJ~ns Scanlon & C~l., (1964) 3 All ER 577 holding the contralY for Architect is no longer good
Jackson v May Fair Window Cleaning Co Ltd, (1952) I All ER 215. For economic loss, see, the case of aw. See, Wll1field & Jolowlcz, Torts, 12th FAn, (19M), p 4; Salmond & Heuston Torts 20th Edn
(1992), p 13. ., .,
solicitor; Groom v Crocker, (1938) 2 All ER 394: (1939) I KB 194. 48.
41. Street, Torts, 6th Edn, p 211. Caparo Industries Pic 1) Dickman, (1990) 1 All ER 568 : (! 990) AC 605 (HL).
49. (1990) 1 All ER 568, P 575.
42. Groom v Crocker, (1938) 2 All ER 384 (Solicitor) : (1939) 1 KB 194: 54 TLR 861: Bagot v Stevens 50.
Scanlar &Co., (1964) 3 All ER 577 (Architect): (1964) 3 WLR 1162. Punjab National Bank v de Boinville, (1992) 3 All ER 104 (CA), p 117 : (1992) I WLR 1138.
51. See footnote 45, supra.
43. Fleming, Law of Torts, 6th edition, pp 168 (169). 52.
44. Coupland v Arabian Gulf Petroleum Co., (1983) 3 All ER 226, P 22R (CA) : (1983) 1 WLR 1136. The Henderson tJ Merrett Syndicates Ltd, (1994) 3 All ER 506 : (1995) 2 AC 145 : (1994) 3 WLR 761 (HL)
53. Henderson v Merrett Syndicates Ltd, (1994) 3 All ER 506, P 530. .
election may be made at any time before judgment; Ivlahesan 1J Maldysia Government Officers Co- 54.
operative Housing Ltd, (1978) 2 All ER 405 (411) (PC) (1979) AC 374 : (1978) WLR 444 ManJu Bhatza (Mrs.) v New Delhi Municipal Council. AIR 1998 SC 223, P 227 : (1997) 6 SCC 370.
55. ~:'ttchz Sankyo Company Ltd v Malvinder Mohan Singh, (2018) 247 DLT 405: AIR 2019 (NOC 135)
(Case recei I'd fraud).
4:;. Jarvis tJ Moy, K.B. :399 (Stockbroker flouting specific instructions).
46. Midland Bank Trust Co. Ltd. v Hett., Stubbs & KertZ;, (1978) 3 All ER 571: (1978) 3 WLR 167. 56. White v Warrick, (1953) 2 All ER 1021 : (1953) 1 WLR 1285 (CA)' Hall v Brooklands Club (1933) 1
KB 205 (213). "

k
It

.t,
10 Law of Torts Chapter I Chapter I General Principles 11

contractual exclusion or of for act or omission that would constitute rea~on .why the subject is treated along with contract. But according to the radical view
57
the tort. whtch IS to be preferred, the obligation is sui generis and its basis is prevention of unjust
64
Recent advancement in the law of 'Negligence' allows a plaintiff, although his person or enrichment. In other words, the obligation under a quasi-contract is imposed by the
property has not been to recover economic loss suffered by him by the negligent law. f~r the reason tha: the defendant has been unjustly enriched at the expense of the
act of the defendant in a breach of contract entered into between him and a plamnff. The law relanng to Quasi-contract differs from the one relating to tort in that
party provided there is a dose of proximity and the loss suffered is a direct and ther~ is ~o duty owed to p~rsons generally for the duty to repay money or benefit
foreseeable of the defendant's negligence. 58 All this led to the observation that we are r.ece~ved IS owed to a defiDlte person or persons; and the damages recoverable are
moving towards the principle that evety breach of contract which might with reasonable hqU1~ated damages, a~d ?ot ~nliquidated damages as in tort. On both these aspects
care have been avoided is also a tort to a person foreseeably affected thereby including even quast-contract has slmrlanty with contract. The law relating to Quasi-contract resembles
to contract. 59 But the of this principle, insofar as it covers to ~he ~aw ~f t?ft a~d differs from the one relating to contract on one aspect that is the
a set back from the Council's decision in Tai Hing Cotton oblIgatIOn mIt. as 111 tort is imposed by the law and not under an agreement as in
60 where in the context of a relationship of a contract. There IS one aspect in which quasi-contract differs from both tort and contract
~V'UOH"M Oh<P'rvf'{j that they did not that there was anything This can be expla~ned by takin~ a familiar example of quasi-contract that when A pay~
elC1pnrle!lt in searching for a in tort where the money u~der a mIstake to ~, B IS ,under an obligation to it to A, even though the
parties were in particularly so in a relationship. The paymen~51s vol~n:ary an~ IS ~ot mduced by any fraud or misrepresentation emanating
Council case was Court of in a case of master servant from B, In thiS Illustra~lOn It c~nnot be said that there was any primary duty on B not
the terms of were contract. It was held where a to acc~pt the money paid to him under a mistake and the only duty on him is the
particular duty of care on part of the master not to cause economic loss to the servant remedIal or secondary duty to refund the money to A; but in tort as also in contract
did not arise out the contract, it not be inferred there is al~ays 6~ primalY duty the breach of which gives rise to the remedial duty to pay
in the context of a contract compensatIon.
"<o,,,,",,,"!1'-L has not all torts or does not
u!,"mH0L0 or the 1.2.4 Tort and Crime
upple:m!~nt statutoty
~ t?ft is also ver~ different. f~0m. a crime, a tort is an infringement or
hC~'M',Pr1' The House of Lords has also pn~a~lOn of prIvate or CIVIl nghts belonging to individuals considered as
or mdlvlduals; whereas a crime is a breach of public rights and duties which affect the
in relation to every kind
64. Anson, English Law of Contract, 22nd Edn, p 603, United Australia Ltd. v Barclays Bank Ltd.,
(1947) AC 1 (27) (Lord Atkin); Fibrosa Spolka Akcyjna v Fairbairn Lawson Cambe Barbour Ltd.,
1.2.3 Tort and
(1943) AC 32, (61) (Lord Wright); Westdeutsche Landesbank Girozentrale v Islington London BC,
cover those situations wherein a person is held liable to another (1996) 2 All ER 961 : 1996 AC 669 (HL), p 996; Thomas Abraham v National Tyre & Rubber
received him to which the Co., AIR 1974 SC 602 (606) : (1973) 3 SCC 458: (1972) 1 SCWR 372. The subject of
contracts IS dealt With m Chapter V of the Indian Contract Act. For a recent case on
enrichment, see, Lipkin Gorman (a firm) v Karpnale Ltd., (1992) 4 All ER 521: (1991) 2 AC 548
(HL) (A thief gambled with stolen money and lost. It was held that the owner could recover the
money from the person who won in gambling from the thief).
65, Under the English law till recently the mistake had to be one of fact and not of law. Under the Indian
57. Henderson v Merrett Syndicates Ltd., supra, pp 698-699.
58. Ross v Counters, (1979) 3 All ER 580 : (1980) Ch 297 : (1979) 3 WLR 605; Junior Books Ltd. v Veitchi law, the mistake may be even one of law (section 70, Contract Act): Sales Tax Officer, Banaras v
Co. Ltd., (1982) 3 All ER 201 (HL). See, p Kanhaiyalal Mu~und Lal Sara/, A.IR 1959 SC 135 : 1959 SCR 1350 : 1959 SC] 53. The English law
59. Winfield & Jolowicz, Tort, 12th Edn, p 7. also started movmg m the same dIrectIOn. In Woolwich Building Society v Inland Revenue Commissioners
60. Tai Hing Cotton Mill Ltd. v Litt Bank Ltd., (1985) 2 All ER 947 (957): (1986) AC 519: (no 2), (1992) 3 All ER 737: (1992) 3 WLR 366: (J 993) AC 70 (HL), it was held that money paid as
(1986) 1 WLR392 (PC). tax under ultravires regulations can be recovered back),
61. Reid v Rush & Tomp,kins Group PIc, (1989) 3 All ER 228: (1990) 1 WLR 212: (1989) 2 Lloyd's Rep More recently it has been held that there is a general right to recover money paid under a mistake,
167 (CA). whether of fact or law, subject to the defences available in the law of restitution: Kleinwort Benson Ltd.
62. China and South Sea Bank Ltd. 11 Tan, (1989) 3 All ER 839 (PC), p 841. v Lincoln City Council, (1998) 4 All ER 513 (HL). Kanhaiyalal's case was decided by a bench of 5 judges
63. Downsview Nominess v First City Corp Ltd, (1993) 3 All ER 626 (PC), P 638 (A receiver or manager of a and was approved by a 7-judge bench in the State ofKerala v Aluminium Industries Ltd., (1965) 16 STC
company appointed by debenture holders has only to act in good faith). Here, the Privy Council made 689: 1965 Ker LT 517 (SC). In MafotlalIndustries Ltd. v UOI, (1996) 9 SCALE 457: (1996) 11 JT
reference to CBS Songs Ltd. v Amstrad Consumer Electronics pIc, (1988) 2 All ER 484 (HL), P 497; 283 : (1997) 5 SCC 536, it has been held that refund can be allowed only if the burden has not been
Caparo Industries (P) Ltd. v Dickman, (1990) 1 All ER 568 (HL) and Murphy v Brentwood District passed on to another person,
Council, (1990) 2 All ER 908: (1991) 1 AC 398 (HL). 66. Winfield and Jolowicz, Tort, 12th Edn, (1984), p 8.
12 Law of Torts Chapter I Chapter I General Principles 13

whole community Secondly, in tort, the wrongdoer has .

prOsecutiOn. 70 Tl. !
lIS ru e not been followed in and has been abolished
to compensate the injured in he is punished by the State in also in England. 72
the interests of society. the action is brought by the injured party:
in crime, the proceedings are conducted in the name of the State and the guilty C.ases may easily be showing that a transaction may involve a criminal as also a
person is punished by the State. Criminal Courts are authorised within certain limits tortIous element, and an element of quasi-contract so that the may be
and in certain circumstances to order payment of a sum as compensation to the UHY,CLulcu.for a criminal offence and sued for damages in an action on tort or for
67
person injured out of the fine imposed on the offender. The compensation so money whICh .had been by him. Suppose that a person
awarded resembles the award of unliquidated damages in a tort action but there is a goods under CIrcumstances which would render him to be Hl'-'.I'-''-'-',
marked difference. The of in a criminal prosecution is ancillary afterwards sells the goods receives the proceeds of
to the primary purpose of bur in a tort action generally it is wrongfully possessed goods be liable to an to an action
the main purpose. allowed in a tort action are punitive in or suit by the owner for recovety of the goods or
nature and one of the reasons the categories of cases in which for the recovery of money he had received.
they can be awarded is that a criminal element in civil law without
68
proper safeguards. 1 Constituents
The High Court has viewed the difference from the perspective of the nature 1.3.1 General
of punishment and sanctions The court observed: it is the fundamental
principal (sic) that what constitutes crime is a matter of statute law. Word The law of torts is fashioned as "an instrument for making people adhere to standards
"crime' is not defined in the Code. A crime has to distinguished from reasonable behaviour and respect the rights and interests of one .73 This it

a tort or a civil wrong. The distinction consists in the nature of the sanction that is does by ~rotectin.g i.nterests and by providing for situations when a person whose
dCldUICU to each of In the case the sanction is in the form of protected Interest IS VIOlated can recover compensation for the loss suffered by him from
74
a tort or a civil wrong the sanction is in the of the. person who has violated the same. By "interest" here is meant "a want or
damages or I.JC;J""dlULIU to the person the deme of a. or group of human beings which the human or group of
deterrence. The purpose is recompense. There is, human bemgs seeks to satisfj, and of which, therefore, the ordering of human relations
inf must take account " 75 ItiS,. h owever,o bVlOUS
. t h at every want or
a between tort and crime at the level. In criminal law also the
duty not to commit an for like any in tort is in o a person cannot be nor can a person claim whenever he suffers loss he
rem and is the law. compensated by the person who is of the loss. 76 The
determines what need protection and it also the
The same set of circumstances in from one constitute a confli~t of ~rotected 77 A protected interest gives rise to a In
tort, while, from another of amount to a crime. In the case, for turn gives r:se t~ a corresponding legal duty. Some legal in the sense
of an assault, the is that which every man that his bodily mere VIOlatIOn of them leads to the of Ud.lHdl~C. There are other
shall be respected, for the wrong done to this the is to get legal rights where is no such presumption and actual to
damages. But this is not all. The act violence is a menace to the safety of society the injury is redressed by the law. An act which IS
generally, and will therefore be punished State. Where the same wrong is
both a crime and a tort (eg, assault, mischief to property) its two aspects
70. Smith v Salwyn, (1914) 3 KB 98 : 111 LT 195. The rule did not bar an action but was a "round for
are not as a crime and as a tort may differ; what is a defence staying it. It was ~ased ~n the public policy that claims of public justice must take precedence"over those
to the tort (as in may not be so in the crime and the object and of pnvate reparatIon. 1 he rule, however, became an anomaly after the police was entrusted with the
of a prosecution and of an action in tort are The wrongdoer may be duty to prosecute the offenders.
71. Keshab v Maniruddirz, (1908) 13 CWN 501: Abdul Kawder v Muhammad Mera ILR (1881) 4 Mad
ordered in a civil action to make to the injured party, and be also 41~ ,
punished criminally by or fine. There was a common law rule that 72. Section 1, Criminal Law Act 1967.
when a tort was also a felony the could not be sued in tort until he had 73. Setalvad, Common Law in India, p 109.
been prosecuted for the felony or a reasonable excuse had been shown for his non- 74. Popatlal Gokaldas Shah v Ahmedabad Municipal Corporation, AIR 2003 Guj 44, p 55.
75. ~ound, Selected Es:ays, p 86: Street, Torts, 6th Edn, p 3.
76. Bu: acts or omISSIOns which any moral Code would censure cannot in a practical world be treated so as
t? g:ve a nght to every person injured by them to demand relief. In this way rules of law arise which
hmh the range of complalllts and the extent of their remedy" : Donoghue v Stevenson, (1932) AC 562 :
67. Section 357 of the Code of Criminal Procedure 1973. 48 T.L.R. 494 (HL) per Lord Atkin.
68. Rookes v Barnard, (1964) AC 1129 : (1964) 1 All ER 367: Cassell & Co Ltd v Broome, (1972) AC 1027:
77. For example, privileged occasions, where the interest of the person defamed in his reputation is
(1972) 1 All ER 80l.
sllbo~dlllated to the interest of the person defaming in the exercise of freedom of speech on these
69. State ofMaharashtra v GovindMhatarba Shinde (2010) 4 AIR Born R 167: (2010) 112 Born LR 2241. occasIOns.
 14 Law o.{Torts Chapter I Chapter I General Principles 15

a wrongful act. But every wrongful act is not a tort. To constitute a tort or civil injury special, peculiar and substantial damage is occasioned to the plaintiff.s3 The remedy of
(1) there must be a wrongful act committed by a person; (2) the wrongful act must give the public is by indictment, for, if every of public were allowed to bring
rise to legal damage or actual damage; and (3) the wrongful act must be of such a nature action in respect of such invasion, there would be no limit to the number of actions
as to give rise to a legal remedy in the form of an action for damages. which might be brought.
84

1.3.2 ~ron~ulIict To every right there corresponds an obligation or duty. If the right is legal, so is the
obligation; if the right is contingent, imaginary, or moral, so is the obligation. A right in
"The act complained of should, under the circumstances, be legally wrongful as its main aspect consists in doing something, or receiving and accepting something. So an
regards the party .co~plaining; th~t is, it mu~t prejudi.ciall,r .affect h!m in some 1~,9:1 obligation consists in performing some act or in refraining from performing an act.
right; merely that It will, however dIrectly, do hIm harm m hIs mterest IS not enough. Servitude of passage over a field appears as a right of walking or driving over it by the
An act which, prima facie, appears to be innocent may become tortious, if it invades owner of the dominant tenement. The duty of the servient owner is to from
the legal right of another person. A familiar instance is the erection on one's own land of putting obstacles. An easement of light appears as a right on the part of the dominant
anything which obstructs the light to a neighbour's house. It is, no doubt, lawful to erect owner to interdict the erection of buildings on the servient tenement, or to remove them
what one pleases on one's own land; but if by twenty years' enjoyment, the neighbour when erected. The dury is to abstain from erecting them. The duty with which the law
has acquired the legal right to the unobstructed transmission of the light across that of torts is concerned is the duty to abstain from causing a wilful injury, and to respect
land, the erection of any building which substantially obstructs it is an invasion of the the properry of others, and to use diligence to avoid causing harm to others.
right, and so not only does damage, but is unlawful and injurious. The crucial test of Liability for a tort arises, therefore, when the wrongful act complained of amounts
legally wrongful act or omission is its prejudicial effect on the legal right of another. either to an infringement of a legal private right or a breach or violation of a legal dury.
Now, what is a legal right? It has been defined, by Austin,79 as a 'faculty' which resides A private law right, as stated aforesaid, is essentially a right of an individual arising out of
in a determinate party or parties by virtue of a given law, and which avails against a party tort or contract. The remedy for infringement of such private right does not lie under
(or parties or answers to a duty lying on a party or parties) other than the party or parties Article 226 of the Constitution and a writ is therefore not maintainable. 85
in whom it resides. Rights available against the world at large are very numerous. It is
generally understood that courts exist to provide remedies in support of legal rights. 80 1.3.3 Damage
They are sub-divided into private rights and public rights. "Damage" means the harm or loss suffered or presumed to be suffered by a person as a
Private rights include all rights which belong to a particular person to the exclusion of result of some wrongful act of another. The sum of money awarded by court to
the world at large. These rights are: "(1) rights of reputation; (2) rights of bodily safety compensate the "damage" caused is called "damages ".
and freedom; (3) rights of property; or, in other words, rights relative to the mind, body, From the point of view of presumption of damage, rights are classified into (1)
and estate; and, if the general word 'estate' is substituted for 'property', these three rights absolute and (2) qualified. When an absolme right is violated the law conclusively
will be found to embrace all the personal rights that are known to the law".81 Under the presumes damage although the person wronged may have suffered no pecuniary loss
third head of rights of property will fall (a) those rights and interests, corporeal and in- whatsoever. The damage so presumed is called legal damage. Violation of an absolute
corporeal, which are capable of transfer from one to another, and (b) those collateral right is, therefore, actionable per se, ie, without proof of any damage. In case of qualified
rights of a personal nature which enable a person to acquire, enjoy and preserve his rights, there is no presumption of legal damage and the violation of such rights is
private property. Thus private property is either property in possession, property in actionable only on proof of actual or special damage. In other words, in case of an
82
action, or properry that an individual has a special right to acquire. absolute right, the injury or wrong, ie, the tortious action, is complete the moment the
Public rights include those rights, which belong in common to the members of the right is violated irrespective of whether it is accompanied by any actual damage, whereas
State generally. Every infringement of a private right denotes that an injury or wrong has in case of a qualified right, the injury or wrong is not complete unless the violation of
been committed, which is imputable to a person by whose act, omission, or forbearance, the right results in actual or special damage.
it has resulted. But when a public right has been invaded by an act or omission not In the leading case of Iishby v White,86 which is illustrative of violation of an absolute
authorised by law, then no action will lie unless in addition to the injury to the public, a right, Lord Holt, C.]., observed:
Every injury imports a damage; though it does not cost the party one farthing, and it is
78. Rogers v Rajendro Dutt, (1860) 8 MIA 103 (136) : 13 Moore PC 209. An empty threat to ptosecute is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a
not actionable: Banwari Lal v Municipal Board, Lucknow, (1941) OWN 864 : AIR 1941 Oudh 572 :
1941 OLR 542. 83. Lyon 11 Fishmongers' Company, (1876) 1 App. Cas. 662.
79. Vol II, p 786. 84. Winterbottam v Lord Derby, (1867) LR 2 Ex 316 (321); Iveson v Moore, (1699) 1 Ld. Raym. 486; Ricket
80. Patel v Mirza, [2016] UKSC 42. v Metropolitan Ry Co, (1864) 5 B & S 149 (156): LR2 HL 175.
81. Per Cave, J, in Allen v Flood, (1898) AC 1,29: 77 LT 717. 85. KK Saksena v International Commission on Inigation and Drainage & Others, (2015) 4 SCC 670.
82. Per Bayley, J, in Hannam v Mockett, (1824) 2 B & C 934 (937). 86. Ashby v White, (1703) 2 Ld. Raym. 938 (955).

p
 16 Law of Torts Chapter I Chapter I General Principles 17

damage, when a man is thereby hindered of his right. As in an action for slanderous words,s7 violation of a legal right committed knowingly gives rise to a cause of action, ego
rho ugh a man does not lose a penny by reason of the speaking them, yet he shall have an action. interference with an exclusive right to goods and produce, sold at a bazaar,91 or to
So if a man gives another a cuff on the ear, though it costs him norhing, not so much as a little
break a curd-pot in a temple on a certain day,92 or to carry a procession through certain
diachylon (plaster), yet he shall have his action, for it is personal injury. So a man shall have an
action against another for riding over his ground, though it does him no damage; for it is an public streets of a village on specific occasions,93 or to the supply of water from a
194 . D:' b .
invasion of his property and the other has no right ro come there. ch anne or to receIve olIenngs y sett111g up a new temple in the name of the same
deiry in the same vicinity.95
The real significance of legal damage is illustrated by two maxims, namely, injuria sine
damno and damnum sine (or absque) injuria. If there is merely a threat of infringement of a legal right without the injury being
By damnum is meant damage in the substantial sense of money, loss of comfort, com~l.ete the person. whose right has been threatened can bring a suit under the
service, health, or the like. By injuria is meant a tortious act; it need not be wilful and provlslOns of the SpeCIfic Relief Act for declaration and injunction.
malicious; for though it be accidental, if it be tortious, an action will lie. 88 Any Refosal to register vote.-In the leading case of Ashby v White,96 the defendant, a
unauthorised interference, however trivial, with some absolute right conferred by law on returning o~ficer, wrongfully refused to register a duly tendered vote of the plaintiff, a
a person, is an injury, eg, the right of excluding others from one's house or garden. legally qualified voter, at a parliamentary election and the candidate for whom the vote
In cases of injuria sine damno, ie, the infringement of an absolute private right wi~hout was tendere~ was elected, and no loss was suffered by the rejection of the vote,
any actual loss or damage, the person whose right is infringed has a cause of action. nevert~el~ss it was. held that an action lay on account of infringement of a legal right of
Every person has an absolute right to his properry, to the immunity of his person, and to the pl~111tlff. In thls c.ase the returning officer had acted maliciously. Where, therefore, a
his liberty, and an infringement of this right is actionable per se. There are two kinds of ;eturn111g officer, without any malice or any improper motive, in exercising his
torts which are actionable per se, that is, one without proof of actual damage, and second Judgment, honestly refused to receive the vote of a person entitled to vote at an election,
those which are actionable only on proof of actual damage resulting from them. In the it was held that no action lay.97 If a person entitled to be included in the electoral roll is
former the law presumes damage because certain acts are so likely to result in harm wrongfully omitted from such roll so as to be deprived of his right to vote he suffers a
legal. wrong f~rv:'hich an action lies. An action for damages will also lie if a citizen is
owing to their mischievous tendency that the law prohibits them absolutely; whereas in 98

the latter there is no such presumption and actual damage must be proved. 89 Whenever depnved of hls nght to vote by a law which is unconstitutional by reason of offending
a person has sustained what the law calls an 'injury' in the former class of cases he may his right to equaliry.99
bring an action without being under the necessity of proving special damage, because the
injury itself is taken to imply damage. Actual, perceptible, or appreciable loss or
detriment is not indispensable as the foundation of an action. Trespass to person, that is [Footnote No. 90 Contd.]
assault, battery and false imprisonment, and trespass to property, whether it be to land Kaliappa v Vayapuri, (1865) 2 MHC 442; Nga Myat Hmwe l' Nga Yi', (1906) UBR (1904-1906), Tort,
or goods and libel are instances of torts that are actionable per se, and the court is bound p 9; Maung Thit Sa v Maung Nat, (1922) 1 BLJ 146.
to award to the plaintiff at least nominal damages i.f no actual damage is proved. . Where, attachment proceedings are taken bona fide in the belief that the judgment-debtor has an
Interest 111 the property, the plaintiff is not entitled to any damage: Sain Dass v Ujagar Singh, ILR
In India, the same principles have been followed. The Privy Council has observed that
(1939) 21 Lah 191 : 186 IC 646 : AIR 1940 Lah 21; jethu Singh v State of Rajasthan AIR 2014
"there may be, where a right is interfered with, injuria sine damno sufficient to find an Raj 157.
action: but no action can be maintained where there is neither nor injuria ".90 A 91. Bhikhi Ojha v Harakh K,mdu, (1889) 9 AWN 89.
92. Narayan v Balkrishna, (1872) 9 BHC (ACJ) 413. A person may possess the riO'ht to worship an idol at
particular place when it is carried in procession or otherwise: Nagiah Bathudu : . (1900) II
87. An action for slander may be maintained without proof of actual damage in exceptional cases eg,
MLJ 215; Subbaraya Guruku! v Chellappa Mudali, ILR (1881) 4 Mad 315; Krishnaswami Aiyangar v
imputation of a criminal offence. Under English law normally actual damage is required for an action
Rang~~.Jamt Atyangar, (1909) 19 MLJ 743. The right of worship including any special right of worship
for slander though not for libel. The Indian Law does not recognise this distinction. Libel and slander
IS a clVll nght: Subba Reddi v Narayana Reddi, (1911) 21 MLJ 1027.
are both in India actionable per se. See, Chapter XII, title 12.4.1 and 12.4.2.
93. And; Moopan v Muthuveera Reddy, (1915) 29 MLJ 91: AIR 1916 Mad 593: 29lC 248.
88. Winsmorev Greenbank, (1745) Willes 577 (581).
89. "An act may be mischievous in two ways-either in its actual result or in its tendencies. Hence, it is that
94. Rama Odayan v Subramania Aiyar, ILR (1907) 31 Mad 171, following Quinn v Leathem, (1901) AC
495: 65 JP 708: 85 LT 289.
legal wrongs are of two kinds. The first consists of those in which the act is wrongful only by reason of
accomplished harm which in fact ensues from it. The second consists of those in which the act is 95. l'urshottamdas Parbhudas v Bai Dahl, (1940) 42 Born LR 358: AIR 1940 Born 205: ILR (1940) Bom
339.
wrongful by reason of its mischievous tendencies as recognised by the law, irrespective of the actual
issue." Salmond,jurisprudence, 12th Edn, (1966), p 355. 96. Ashby v White, (1703) 2 Ld. Raym. 938.
90. Kali Kissen Tagore v jodoo Lal Mullick, (1879) 5 CLR 97 (101): (1878) 6 IA 190 (195). It is not 97. Tozer v Child, (1857) 7 EI & B 1 377. See also, Chunilal v Kripashankar, (1906) 8 Born LR 838: ILR 31
necessalY to show that there has been any subsequent injury consequent on such infringement: see, Born 37. malice is not necessary. If the refusal is not in faith, which implies due care and
Ramachand Chuckerbutty v Nuddiar Chand Ghose, (1875) 23 WR 230; RamphulSahoo v Misree Lall, dIlIgence, person refusl11g to the vote will be : Draviam Pillai II Cruz Fernandez,
(1875) 24 WR 97; contra, Naba Krishna v Collector of Hooghiy, (1869) 2 Beng LR (ACJ) 276; Shama (1915) 29 MLJ 704: AIR 1916 569: 31 IC 322.
Churn v Boidonath, (1869) 11 Suth WR 2; Seeta Ram v Shaikh Kummeer Ali, (1871) 15 Smh WR 250; 98. The Municipal Board ofAgra v Asharfi La!, (1922) 44 All 202: AIR 1922 AU 1: 20 All LJ 1.
99. Nixon v Herndon, 273 US 536.
[Footnote No. 90 Contd.]

.
18 Law of Torts Chapter I
Chapter I Genera! Principles 19

Banker refosing customer's cheque.-An action will lie a?ainst a banke~, having .
actlOn. 105 I A
n cton V Blunue,t,
J 1,106
a Ian d owner 111
. carryll1g
. on mll1ll1g
. . operatlOns
. on h'15
sufficient funds in his hands belonging to a customer, for refusmg to honour his cheque,
100 land in the usual manner drained away the water from the land of another owner
although the customer did not thereby sustain any actual loss or damage.
through which water flowed in a subterraneous course to his well, and it was held that
In cases of damnum sine injuria, ie, actual and substantial loss without infringeme?t o~ the latter had no right to maintain an action.
any legal right, no action lies. Mere loss in money o~ m.oney's worth does not of Itself
constitute a tort. The most terrible harm may be mfhcted by one man on another Where the defendant intended to divert underground water from a spring that supplied
without legal redress being obtainable. There are ma?,y acts which, th~u?h .harmful, ~re the plaintiff corporation's works, not for the benefit of his own land, but in order to drive
not wrongful and give no right of action. "Damnum may be absque tnJurza. Thus, l~ I the corporation to buy him out it was held that the defendant's conduct was
have a mill, and my neighbour sets up another mill, and thereby the profits of my ~HIl unneighbourly but not wrongful and therefore no action lay. lO7 The rule as to the rifht of
fall off, I cannot bring an action against him; and yet I have suffered damage. But i,f a a landowner to appropriate percolating underground water applies equally to brine. 10
miller hinders the water from running to my mill, or causes any other harm lIke l09
. as t h i gives.
' 101
It has again been recently reiterated that a landowner is entitled to exercise his right
nuisance, I shall have such actlOn e aw to obstruct subterranean water flowing in undefined channels under his land regardless
'\cts done way of self-defence against a common enemy, such as the erection of of consequences, whether physical or pecuniary, to his neighbours and regardless of his
banks to prevent the inroads of the sea, 10"~ removal of support to 1~n d wnere
1 1 .
no such motive or intention or whether he anticipated damage. On this view, it was held that a
landowner was not liable to his neighbour, whose land subsided damaging her house, for
right of support has been acquired, and dal~age caused b,r acts authons~d by stat~te are
instances of damnum absque injuria, and damage resultll1g therefrom 1,$ not a~t1onabl~. extraction of underground water despite warning that it was likely to result in collapse of
The loss in such cases is not caused by any wrong, but by another s exer~~se of hIS neighbouring land. But this case also brings forward the necessity of change in law by
judicial decision or legislation as modern methods of extraction of underground water
undoubted right; and, in every complicated society, the exercise, howc~e~ legltlmate, by
without any restriction may bring down the water level in the neighbouring area to such
each member of his particular rights, or th~ disch~rge,. however legltll~ate, ?y each
member of his particular duties, can hardly fall occasl,onahy.to cause conflICt of m~erests an extent as to dry up all the wells and seriously affect life and vegetation in the
neighbourhood.
will be detrimental to some. Where an act IS lawtul or legally done, Without
negligence, in the exercise of a legal rig~t, such damag.e as. comes to.anothe~.thereb'y Damage caused by Lawfol working of min e.-Where a landowner by working his mines
is damage without injUlY. Hence the meanmg of th~ maxIm IS that los~ or detrlment IS caused a subsidence of his surface, in consequence of which the rainfall was collected and
not a ground of action unless it is the result of a speCles o! ",:~ongs of whICh the law takes passed by gravitation and percolation into an adjacent lower coal-mine, it wa.<; held that
cognizance. In a suit for damages based on a tort the plamtnf cannot succee? m~rely on the owner of the latter could sustain no action because the right to work a mine was a
the of damage unless he can show that the damage was caused by vlOlatlOn of a right of property, which, when duly exercised, begot no responsibility.110
1ega1ng · h t 0 fl'
,liS. 103
Setting up rival school-Where the defendant, a schoolmaster, set up a rival school
\'{Then a statute confers upon a corporation a power to be exercised for the. pub~ic next door to the plaintiffs and boys from the plaintiffs school flocked to
good, the exercise of power is not generaHy discretionary b~t imperative. No aC~lOn hes defendant's, it was held that no action could be maintained. l11 Competition is no
against a District Board for the planting of trees by the Side ~f .a road ev:n. if a tree ground of action whatever damage it may cause, provided nobody's legal rights are
through unknown causes fans and damages the h~~se of t~~ plamtlff, unless It IS proved . f'rmge d . 112
111
that the District Board did not use due care and diligence.
Driving rival trader out ofmarket.-A, B, C and D, shipowners, who shipped tea from
Interception ofpercolating water.--A landowner and mi.ll owner w~o had for about .six one port to another, combined together, to keep the entire trade in their hands and
years enjoyed the use of a stream, which was chIefly supphed by perc~latmg consequently to drive F, a rival shipowner, out of trade by offering special terms to
~nderaround water, lost the use of the stream after an adjoining owner dug on hiS own customers who deal with them to the exclusion of F, F sued A, B, C and D for the loss
ground in extensive well for the purpose of suppl'ying water to the inhabitants. of the
district. In an action brought by the landowner It was held that he had no nght of
105. Chasemore v Richards, (1S59) 7 HLC 349; but see, Babaji lJ Appa, (1923) 25 Born LR 789: AIR 1924
Born 154: 77IC 131.
106. Acton v Blundell, (1843) 12 M & W 324
100. Marzetti v Williams, (1S30) 1 B &Ad 415. _
107. Mayor &Co ofBradford v Pickles, (1895) AC 587.
101. Per Hankford, J, in Gloucester Grammar School, (1410) YB 11 Hen IV, fo 4/, pl21, 22. .
108. Salt Union Ltd v Brunner, Mand & Co., (1906) 2 KB 822.
102. See, Gerrard v Crowe, (1921) 1 AC 395. It is lawful for a person to erect an embankment on hIS la~d t~
109. Stephens v Anglian Water Authority, (1987) 3 All ER 379 (CA).
protect his land from the inHux of water from adjoining land: Shanker v Laxman, AIR 1938 Nag ~89 .
llO. Wilson v W~JeII, (1876) 2 App Cas 95; Fletcher v Smith, (1877) 2 App Cas 781: Smith l' Kenrick, (1849)
ILR (1938) Nag 239 : 176 IC 663.
7 CB 515; Westhoughton Coal mltl Cannel Co v Wigan Coal Corponltion, (J 939) Ch SOO.
103. See, Dhanusao v Sitabai, AIR [1948] Nag 69S.
lll. Gloucester Grammar School case, (1410) YB 11 Hen IV, fo 47, pI21, 23.
104. District Board, Manbhum v S Sarkar, AIR 1955 Pat 432: 1955 BLJR 492 : ILR 34 Pat 661.
112. Quinn v Leathem, (1901) AC 495, 539: 70 L]PS 6.
20 Law of Torts Chapter I Chapter I General Principles 21

to him act. It was held that F had no right of action, for no legal right of The I-''''HH!HO
F had been infringed. done competition in was not actionable.
113 the Superintendent issued a general to
service not to employ the tug in future. The plaintiffs
Use of title by after dissolution ofmarriage.-Where the marriage of a commoner Superintendent for damages. It was that they had no
with a peer had dissolved by decree at the instance of the wife, and she afterwards, employed by Government, and the action was dismissed. 119
on a commoner, continued to use the title she had acquired by her first
marriage, it was held that she did not thereby, though having no legal right to the user, Ceasing to offir food to idol.-Where the servants of a
commit such legal wrong against her former husband, as to him, in the absence of the food offered to the idol, but the person who was
malice, to an to restrain her the use of the title.
114 offer food did not so, and the servants brought a suit
that the defendant was under no obligation to
Using of name of another man's house.-The plaintiffs house was called "Ashford servants, and though his omission to food to the
Lodge" for sixty years, the adjoining house belonging to the defendant was called plaintiffs, it was damnum
"Ashford Villa" for forty years. The defendant altered the name of his house to of . 120
a Stilt.
the plaintiffs house. The plaintiffs alleged that this act of the defendant had caused
them great inconvenience and annoyance, and materially diminished the value of Damage to wall by water.-The built rwo
their property. It was held that defendant had not violated any legal right of the sides of his house as a result of which water
· 'ff:s. 115
PIaInU and situated berween defendant's and PW"U'UH

of the plaintiff. The plaintiff had not acquired

Obstruction to view ofshop.-The plaintiff carried on his business in a shop which had defendant by building the wall on his land not in any
a board to indicate the materials in which he dealt. The defendant by virtue of statutory right, that this was a case of damnum sine injuria and that, rh,'I'pt",",,,
powers erected a gasometer which obstructed the view of his premises. In an action by · 'fI121
accrue d to t h e p 1amt1 .
the plaintiff to restrain by injunction the erection of the gasometer as it injured him by
obstructing the view of his place of business, it was held that no injunction could be Loss ofone academic year.-A student was for shortage of attendance
grante d ··
t h e Injury comp l' f 116
ame d o. by the Principal on a misconstruction of the relevant regulations and thereby the student
suffered the loss of one year. In a suit for damages it was that the suit was not
Misdelivery of telegram.-A sent a telegram to B for the shipment of certain goods. maintainable as the misconstruction of the regulations did not amount to a tort. 122
The telegraph company, mistaking the registered address of C for that of B, delivered 123
the to C. C, on the telegram, sent goods to A. A refused to accept The result of the rwo maxims is that there are moral wrongs for which the law gives
that he ordered the goods not from C, from B. C sued the no legal remedy though they cause great or detriment; and, on the other there
for damages for loss suffered him. It was held that C hact no cause are legal wrongs for which law does give a remedy, though there
of action against company, for the company not owe any of care to C. and violation of a private right, without actual loss or in the case. As
no legal right of C could therefore be said to have been infringed. 117 already seen, there are torts which are not actionable
violated is a qualified right as distinguished from an
Water supply to the negligence of the defendants a fire hydrant near the
actual damage is an ingredient of the tort and the injury or wrong
defendants' factoty on an industrial estate was damaged by their lorty. As a result of this, it is accompanied by actual damage. damage is called loss",
supply of water through the main was cur off and this caused loss of a day's work in the
"particular damage", "damage in fact", "special or loss". "actual
plaintiffs' factoty. Neither the main nor the hydrant was the property of the plaintiffs. In
damage" is the better expression to be in the present context. u<t.uu,f'," is the
an action by the plaintiffs to recover their loss it was held that the action did not lie
because there was no injuria, as the duty not to damage the hydrant was owed to the
owners of the hydrant was damaged and not to the plaintiffs.l!S 119. Rogers v Rajendro Dutt, (1860) 8 MIA 103: 13 Moore PC 209.
120. Dhadphale v Gurav, (1881) 6 Born 122. See, Bindachari vDracup, (1871) 8 BHC (ACJ) 202 (refusal of
Indian cases-Refusal ofemployment.-The plaintiffs owned a tug which was employed a pleader to appear in a case under section 180, Criminal Procedure Code, is no injury); see, Dhondu
for towing ships in charge of Government pilots in the Hooghly. A troopship arrived in Hari v Curtis, (1907) 9 Born LR 302; WH Rattigan v The Municipal Committee, Lahore, (I 888) PR No.
106 of 1888 (erection of a slaughter-house near a person's house is no injury if no nuisance);
Shidramappa v Mahomed, (1920) 22 Bom LR 1107 : 59 Ie 391 : AIR 1920 Born 207 (erection of dam
113. Mogul Steamship Co v Me GregOl; Gow 6- Co, (1892) AC 25: 61 LJQB 295. See, chapter XIV, title 14. to pen back rainwater is an injmy).
4.2, text and notes 63, 64, p 396. 121. Anand Singh v Ramachandra, AIR 1963 MP 28: ILR (1960) MP 854: 1961 Jab LJ 1352.
114. Earl Cowley v Countess Cowley, (1901) AC 450. 122. Vishnu Dutt Sharma v Board ofHigh School and Intermediate Examination, AIR 1981 All 46.
115. Day v Brownring, (1878) 10 Ch D 294: 39 LT 553. 123. 'Damnum Sine Injuria' and 'Injuria Sine Damnum'.
116. Butt v Imperial Gas Co, (1866) LR 2 Ch App 158. 124. See, the three meanings assigned to this expression in the judgment of Brown. LJ, in Ratcliffi v Evans,
117. Dickson v Reuter's Telegraph Company, (1877) 3 CPD 1:47 L]CP 1. (1892) 2 QB 524 (528): 66 LT 794. See, General and Special Damages, chapter IX, titles 9.1.4.3,
118. Electrochrome Ltd. v Welsh Plastics Ltd., (1968) 2 All ER 205. p 228.
22 Law of Torts Chapter I Chapter I General Principles 23

gist of action in the following cases: (1) right to support of land as between adjacent 1.4. General Principle of Liability
landowners; (2) menace; (3) seduction; (4) slander (except in four cases); (5) deceit; (6)
conspiracy or confederation; (7) waste; (8) distress damage feasant; (9) negligence; (10) There are two views prevailing on the subject of existence of some broad unifying
nuisance consisting of damages to property; and (11) actions to procure persons to break principle of all tortious liability. The two views are set out in the question that
their contracts with others. Salmond asked:
Does the law of torts consist of a fundamental general principle that it is wrongful to
1.3.4 Remedy cause harm to other persons in the absence of some specific ground of justification or
A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come excuse, or does it consist of a number of specific rules prohibiting certain kinds of
under the category of wrongs for which the remedy is a civil action for damages. The harmful activity and leaving all the residue outside the sphere oflegal responsibility". 131
essential remedy for a tort is an action for damages, but there are other remedies also, eg, Salmond preferred the second alternative and his book for this reason is still entitled
injunction may be obtained in addition to damages in certain cases of wrongs. Specific as Law of Torts and not Law of Tort. 132 Winfield on the other hand accepted the
restitution of a chattel may be claimed in an action for detention of a chattel. Where second alternative, ie, the narrow view only from the practical point of view as a day to
there is dispossession of land, the plaintiff in addition to damages also claims to recover
day matter but he contended that "from a broader outlook there was in the
the land itself. But it is principally the right to damages that brings such wrongful acts theory of a fundamental general principle of liability, if we take the view, as we
within the category of torts. There also exist a large number of unauthorised acts for must, that the law of tort has grown for centuries, and is still growing, then some such
which only a criminal prosecution can be instituted. Further, damages claimable in a
principle seems to be at the back of it". 133 The entire history of the development of the
tort action are unliquidated damages. For example, as earlier seen an action for money
toft law shows a continuous tendency, which is naturally not uniform in all common
had and received in the context of quasi-contract, where liquidated damages are claimed
law countries, to recognise as worthy of legal protection, interests which were
is not a tort action.
previously not protected at all or were infrequently protected and it is unlikely that
134
The law of torts is said to be a development of the maxim ubi jus ibi remedium (there this tendency has ceased or is going to cease in future. There are dicta both ancient
is no wrong without a remedy). Jus signifies here the 'legal authority to do or to demand and modern that categories of tort are not closed and that novelty of a claim is no
something; and remedium may be defined to be the right of action, or the means given 115
defence. But generally, the judicial process leading to recognition of new rort
by law, for the recovery or assertion of a right. If a man has a right, "he must of necessity situations is slow and concealed, as judges are cautious in making innovations and
have a means to vindicate and maintain it, and a remedy if he is injured in the exercise they seldom proclaim their creative role. Normally a new principle is judicially
or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; accepte d to accommo d ate new 1'deas 0 f socia. I we if:are 136 or pu bl'Ie po l'ICY 137 on1yater
f
125
want of right and want of remedy are reciprocal. The maxim does not mean, as it is they have gained their recognition in the society for example in extra-judicial writings
sometimes supposed, that there is a legal remedy for evety moral or political wrong. If
this were its meaning, it would be manifestly untrue. There is no legal remedy for the
breach of a solemn promise not under seal and made without consideration,126 nor for 131. Salmond, Torts, 2nd Edn, (1910), pp 8, 9.
132. Salmond and Heuston, Law of Torts, 20th Edn, p 18. At p.21, the book in defence of Salmond now says:
many kinds of verbal slander, though each may involve utter ruin; nor for the worst
"To some extent the critics seem to have misunderstood Salmond. He never committed himself to the
damage to person and property inflicted by the most unjust and cruel war. The maxim proposition, certainly untenable now, and probably always so, that the law of torts is a closed and
means only that legal wrong and legal remedy are correlative terms; and it would be inexpansible system ... Salmond merely contended that these changes were not exclusively referable to any
more intelligibly and correctly stated, if it were reversed, so as to stand, "where there is single principle. In this he was probably right."
133. Winfield and Jolowicz on Tort, 12th Edn, (1984), p 14. See further, Friedmann, Legal Theory, 5th
no legal remedy, there is no legal wrong." 127 Again, speaking generally, there is in law
Edn., p 528. Setalvad, The Common Law in India, p 109: "A body of rules has grown and is constantly
no right without a remedy; and, if all remedies for enforcing a right are gone, the right growing in response to new concepts of right and duty and new needs and conditions of advancing
128
has from practical point of view ceased to exist. The correct principle is that wherever civilisation."
a man has a right the law should provide a remedy129 and the absence of a remedy is 134. American Restatement of Torts, Article 1; DL Lloyd, Jurisprudence, 2nd Edn, p 245. Dr. Mohammed v
Dr. MehfoozAli, 1991 !v1P LJ 559.
eVl'dence but'IS not conclUSlve
' t hat no ng. h t eXIsts.
. 130
135. Ashby v White (1703) 2 Ld Raym 938; Chapman v Pickersgill, (1762) 2 Wils 145 (146): "Torts are
infinitely various, not limited or confined" (Pratt C]); Donoghue v Stevemon, (1932) AC 562 (619)
(Hi.): "The conception of legal responsibility may develop in adaptation to altering social conditions
125. Per Holt, C], in Ashby v White, (1703) 2 Ld Raym 938 (953).
and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of
126. Under Indian Law there is no legal remedy for the breach of a solemn promise made without life" (Lord MacMillan); Rookes lJ Barnard, (1964) AC 1129 (1169) : (1964) 2 WLR 269 (HL): Home
consideration whether under seal or not.
Officer v Dorset Yacht Co. Ltd., (1970) 2 All ER 294: 1970 AC 1004 (HL). The novelty of a claim may
127. Per Stephen, J. in Bradlaugh v Gossett, (1884) 12 QBD 271 (285).
raise a presumption against its validity; see, Wheeler 11 Saneifield, (1966) 2 QB 94 (104) (Lord Denning
128. Per Cave,], Re, Hepburn, Ex parte Smith, (1884) 14 QBD 394 (399). MR): "J would not exclude the possibility of such an action; bm none as yet has appeared in the books.
129. Letand v Cooper, (1965) 1 QB 232: (1964) 3 WLR 573: (1964) 2 All ER 929. And this will not be the first."
130. Abbot v Sullivan, (1952) 1 KB 189 (200): (1952) 1 All ER 226. For example, there is a right to receive a 136. Cardozo, The Nature of the Judicial Process, p 113; Dr. Mohammed v Dr. MehfoozAli, supra.
time-barred debt but there is no remedy to recover it. 137. Holmes, The Common Law, p 32; Dr. Mohammed v Dr. MehfoozAli, supra.
 24 Law of Torts Chapter I General Principles
Chapter I 25

and even then the decision accepting the new principle is supported mainly by the court fi,;ls that here is a case in which existing principles of liability may properly be
expansion or restriction of existing principles which "gradually receive a new content extended.
and at last a new form". 138 A modern example of final recognition of a new tort of
intimidation is furnished by Rookes v Barnard. 139 The advances in the field of
W:hen invited to develop a new principle of liability the English Courts generally
conSider as to how far the existing torts within their recognised boundaries are sufficient
negligence have recognised new duty situations. 140 It has been held l41 that there are to redress injustice for which a new principle is sought to be developed and whether
not a number of separate torts involving negligence each with its own rules as was such a pr~nciple has been recognised i~ other commonwealth jurisdictions. Proceeding
thought at the beginning of this century and that the general principle behind the tort on these hnes, the House of Lords dedllled to extend tort of Malicious Prosecution
of negligence is that "you must take reasonable care to avoid acts or omissions which to cover disciplinary proceedings or even civil proceedings in general though such an
you can reasonably foresee would be likely to injure your neighbour" 142 and a new duty extension is recognised in the United States. 150 The English courts also "appear to be
situation may be recognised on this principle provided it is just and reasonable to do determined to arrest the drift towards an American style cry-baby in which the
143
50. May be that similarly in future some common principle may be found by the first reaction to misfortune is an expectant phone call to the nearest firm of solicitors. ,,151
English law behind all torts but it has not so far recognised a general principle of This culture was elegantly described by Rougier, J, in John Munroe (Acrylics) Ltd v
liability,144 or what is known as the prima focie tort theory under the American law London Fire and Civil Defence Authority, 152 as follows:
that prima facie "the intentional infliction of temporal damage is a cause of a.ction,
which, as a matter of substantive law, whatever may be the form of the pleading It is truism to say that we live in the age of compensation. There seems to be a
requires justification if the defendant is to escape". 145 The H~h Court of Australia in growing belief that every misfortune must, in pecuniary terms at any rate, be laid at
a controversial decision 146 Beaudesert Shire Council v Smith l appeared to recognise someone else's door, and after every mishap, the cupped palms are outstretched for the
153
solace of monetary compensation. As observed by Lord Hobhouse:
the existence an innominate tort of the nature of an "action for damages upon the
case" available to "a person who suffers harm or loss as the inevitable consequence of "The pursuit of an unrestricted culture of blame and compensation has many evil
unlawful, intentional positive acts of another". But the decision has not been consequences and one is certainly the interference with the liberty of citizen.,,154
followed subsequently in Australia or other common law jurisdictions and the House
This unrestricted culture of blame assumes that "for every mischance in this accident-
of Lords in Lonrho Ltd. v Shell Petroleum Co Ltd., ]48 emphatically ruled that it forms
prone world some one solvent must be liable in damages.,,155 Though in India the risk is
no part of the Law. The present state of the English law has been pithily
summed up by G Williams as follows: not. of a drift towards the American style cry-baby culture, with the widening of the right
to lIfe guaranteed by Article 21 of the Constitution to embrace almost everything which
There are some general rules creating liability-and some equally general rules goes to make a man's life meaningful, complete and worth living with dignity, the risk is
exempting from liability-between the two is a stretch of disputed territory, with the that the blame for every misfortune may be laid at the doorstep of the State. 156
courts as an unbiased boundary commission. If, in an unprovided case, the, decision
passes for the plaintiff, it will be not because of a general theory of liability but because

138. Holmes, The Common Law, p 32. See further, PopatIaI Gokaldas Shah v Ahmedabad Municipal
Corporation, AIR 2003 Guj 44, pp 45, 46.
139. Rookes v Barnard, (1964) AC 1129 : (1964) 2 WLR 269 (HL)
140. Donoghue v Stevenson, (1932) AC 562 (HL); Hedley Byrne 6- Co Ltd v Heller 6- Partners Ltd., (1964) AC
465: (1963) 2 All ER 575; Home Officer v Dorset Yacht Co. Ld., (1970) 2 All ER 294: 1970 AC 1004
(HL); Junior Books Ltd. v Veitchi Co. Ltd., (1982) 3 JlJI ER 201 (HL); MPSRTC v Basantibai, (1971)
MPLJ 706 (DB): 1971 Jab LJ 6]0: 1971 ACJ 328.
141. Home Officer v Dorset Yacht Co Ltd, (1970) 2 All ER 294: 1970 AC 1004 (HL) (Lord Reid).
142. Donoghue v Stevenson, (1932) AC 562 (580): 147 LT 281 (HL) (Lord Atkin).
143. Governors ofthe Peabody Donation Fund v Sir Lindsay Parkimon 6- Co. Ltd., (1984) 3 All ER 529 (534) :
1985 AC 218 (HL). See, p 501,post.
149. The Foundation of Tortious Liability, (1939) 7 CLJ 131; Winfield & Jolowicz, Tort, 12th Edn, (1984),
144. Paron, Jurisprudence, 3rd Edn, p 425. pIS; Dr. Mohammed v Dr. MehfoozAli, 1991 MPLJ 559.
145. Aikens v Wisconsin, 195 US 194, P 204 (Holmes, 1); Resratement, Torts (2nd) s 870; Christie, Cases and 150. GregOlY v Portsmouth City Council (2000) 1 All ER 560: 2000 AC 419 : (2000) 2 WLR 306 (HL).
Materials on the Law ofTorts, p 19; Winfield & Jolowicz, Tort, 12th &in, (1984) p 14. 151. Annual Review (All ER) 1996, p 471.
146. Fleming, Law of Torts, 6th Edn, p 661 (662). 152. John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority, (1996) 4 All ER 318.
147. Beaudesert Shire Council v Smith, (1966) 120 CLR 145. But, see, Victoria Park Racing and Recreation 153. John Munroe (Acrylics) Ltd v London Fire and Civil Defince Authority, (1996) 4 All ER 318, P 332.
Grounds Co. Ltd. v Taylor, (1937) 58 CLR 479 (493) per Latham, CJ: "It has been contended that if 154. Tomlinson v Congbton Borough Council, (2003) 3 All ER 1122, P 1663 (HL).
damage is caused to any person by the act of any other person an action will lie unless the second person 155. CBS Songs Ltd. v Amstrad Consumer Electronics pic, (1988) 2 All ER 484, P 497 (HL) (Lord
is able to justifY his action. Many cases show that there is no such principle in the law". Templeman).
148. LonrhoLtd. v Shell Petroleum Co Ltd., (1982)AC 173: (1981) 3 WLR33: (1981) 2Al! ER456 (HL). 156. See, pp 64-67 post.
 CHAPTER II

SOME GENERAL ELEMENTS IN TORTS

SYNOPSIS
2.1 Act and Omission.. ..... ..... ..... ..... 27 2.3.3 Motive .......................... 31
2.2 Voluntary and Involuntary Acts 28 2.3.4 Distinctions Illustrated. 32
2.3 Mental Elements........................ 29 2.4 Malfeasance: Misfeasance:
2.3.1 Malice........................... 29 Nonfeasance .............................. 32
2.3.2 Intention, Negligence 2.5 Fault .......................................... 33
and Recklessness........... 30

2.1. Act and Omission

It has already been seen that to constitute a tort there must be a wrongful act. I The
word "ad' in this context is used in a wide sense to include both positive and negative
acts, ie, acts and omissions? Wrongful acts which make a person liable in tort are
positive acts and sometimes omissions. Acts and omissions must be distinguished from
natural occurrences which are beyond human control, such as lightning and earthquake,
for which a person cannot be held liable. They must also be distinguished from mere
thoughts and intentions "which are by themselves harmless, hard to prove and difficult
to discipline".3 There is also a basic distinction between an act and an omission. Failure
to do something in doing an act is not an omission but a bad way of performing the act.
For example, if a lawyer gives an opinion without taking notice of the change in law
brought about by a reported decision of the Supreme Court, he would not be guilty of
an omission but of performing the act of giving his opinion in a bad way. "An omission
is failure to do an act as a whole.,,4
Generally speaking, the law does not impose liability for mere omissions. 5 An
omission incurs liability when there is a duty to act. 6 The point can be explained by
referring to the well-known example that a person cannot be held responsible for the

1. Chapter I, title 1.3.1 and 1.3.2, pp 13-14.

2. See also, the definition of 'act' in section 3(2), General Clauses Act 1897.
3. Salmond,furisprudence, 12th Edn, (1966), p 82.
4. Clerk & Lindsell, Torts, 15th Edn, p 34. The purpose of the distinction between act done in a bad way
and omission "is to distinguish between regulating the way in which an activity may be conducted and
imposing a dury to act upon a person who is not carrying on any relevant activity" Stovin v Wise, (1996)
3 All ER 801 (HL), P 820.
5. Smith v Little Wood.- Organisation Ltd., (1987) 1 All ER 710, p 729: (1987) 2 WLR 480 (HL); Stovin v
Wise, supra, p 819.
6. See, Chapter XIX, title 9.1.2.1.6, p 514.

27

h
28 Law of Torts Chapter II Chapter II Some Genera! Elements in Torts 29

child whom he sees even "an act has no natural

exertion or risk of harm to himsele But "it is to in each particular case
is one for whose safety and welfare there is a duty laid on what '-VU0'·YC'\.UI..-\.0 shall be counted the compass of act
the person who him in the above example, a or also be or
guardian will be held liable for to attempt a rescue, for it would then be a case of has fallen asleep or
an omission where there is a to act. Even in those cases where there is no duty to
if a starts rescue work, he may be held liable for not
leaves the other worse off than he would otherwise to view is
8
been. the liability arises not because any omission but for the act of of ability to control one's UClld';lVUi; In'vOilllflf:lf'V
rescue in a bad way. Another of an actionable omission can in actor lacks the to control where
to abate a hazard. A person on whose a hazard naturally the actor's of power to his actions the act
threatens to on to another's land to . 14 Am mvo. 1untary act not an
IS under a if he or to of . 15
act 0 f trespass IS not a tort. '
to do what is in all the circumstances to prevent the risk of
the known or damage to the other person or property, and is liable in Court to
nuisance if he does not. 9
The encroachments committed those persons are acts in the sense that those
acts are compelled inevitable circumstances and are not guided choice.
2.2. Acts
observations cannot be to mean that an act committed out of
to a Brown and accepted amongst others Austin,
arising out of poverty is an involuntary act the Law of The
Stephen Holmes a voluntaDj act may be distinguished from an involuntary act by
lln,rI'lfnP Court in the sentence following above observations trespass is a
dividing the former into "(1) a willed muscular contraction, (2) its and
tort, and out necessity is a 17 Had the court intended to
(3) its .10 An act is categorised as either innocuous or VHVU~".U
lie down encroachments were in the sense known to the Law
I..-Vjll~lU.\.JldL'VH of the circumstances in which it is performed and the consequences
Torts and for that reason not of suggesting necessity as
For instance, "to crook the with a certain force is the same act a defence.
the trigger of a pistol is next to it or not. It is only surrounding
circumstances of a pistol loaded and cocked, and of a human being in such relation to it,
as to be likely to be hit that the act a wrong."ll An act is inyoluntaty
when the contraction is not willed. This theory has not been accepted by some Even a voluntary act, except in those cases where liability is either strict or
others for the reasons that it rests upon dubious psychology, it is inappropriate for the absolute, is not enough to fasten liability and it has to be accompanied with "~"J~""a....
problem of omissions, and it imposes upon the meaning of the term "act" a limitation mental ie, malice, negligence or motive to make it an "'-'Uvua'Vl>'-
which is contraty to the common usage of speech.12 In common speech, one includes all that other necessary ingredients of the tort are present.
the relevant circumstances and consequences under the name "act". The act of
2.3.1
murdering a by shooting at him is one act and not merely the muscular
contraction pressing the trigger. The wrongful act of trespass on land includes the sense means But in
circumstance that the land belongs to and not bodily movement by doing of a
LUJlLlU·Hd.j act, and (2)
sense, is synonymous with L'-'.HHJH. In the second sense, malice refers to the

7. "A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to motive and in this sense it H1L_'W"",C~ but any motive which the
a large and indeterminate class of people who happen to be able to do something. Why should one be law Malice in the
held liable rather than another?" StotJin v Wise, supra, p 819.
J, in the following
8. Clerk & Lindsel!, Torts, 15th Edn, p 35, citing the Ogopogo, (1970) 1 Lloyd's Rep. 257 (affirmed in
(1971) 2 Lloyd's Rep. 410: (1972) 22 DLR 545) and distinguishing, tast Suffolk Catchment Board tJ
Kent, (1941) AC 74, where the plaintiff was not worse off. 13. Salmond,furisprudence, 12th Edn, (1966), p 354.
9. Leakey v National Trust for Places ofHistoric Interest or National Beauty, (1980) 1 All ER 17 : 1980 QB 14. Salmond,furisprudence, 12th Edn, (1966), pp 354 (355).
485 : (1980) 2 WLR 65 (CA); Goldman tJ Hargrave, (1966) 2 All ER 989 (PC) : (1967) 1 AC 645; 15. Street, Torts, 6th Edn, p 17.
Stovin tJ Wise, (1996) 3 All ER 801, pp 819, 820 (HL). 16. Olga Tellis v Bombay Municipal COIporation, (1985) 3 SCC 545, pp 584, 585: 1986 Cri LR 23: AlR
10. Salmond,furisprudence, 12th Edn, (1966), p 353. 1986 SC 180.
11. Holmes, The Common Law, p 46. 17. See, text and footnote 201, p 113.
12. Salmond,jurisprudence, 12th Edn, (1966), pp 354, 355. 18. Salmond and Heuston, Torts, 20th Edn, (1992), p 20.
30 Law of Torts Chapter II Chapter II Some General Elements in Torts 31
26
Malice in common acceptation means ill-will against a person, but in its legal sense it to run the risk. Recklessness is sometimes called "Gross negligence" but very often and
means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect more properly it is assimilated with intention. Error! Bookmark not defined. It is
stranger a blow likely to produce death, I do it out of malice, because I do it intentionally sometimes said that "a party must be considered in point of law to intend that which is
and without just cause or excuse. If I maim cattle without knowing whose they are, if I the necessary or the natural consequence of that which he does". 27 This is too wide a
poison a fishery, without knowing the owner, I do it out of malice, because it is a statement as it fails to distinguish between intentional and negligent wrong doing?8
wrongful act, and done intentionally.19 The word "wrongful' imports the infringement
of some right, ie, some interest which the law recognises and protects. Where a man has 2.3.3 Motive
a right to do an act, it is not possible to make his exercise of such right actionable by
alleging; or proving that his motive in the exercise was spite or malice in the popular Motive is the ulterior object or purpose of doing an act. It differs from intention in
two ways. First, intention relates to the immediate objective of an act, whereas, motive
sense. 2 A wrongful act, done knowingly and with a view to its injurious consequences,
may be called malicious. But such malice derives its essential character from the ref~rs t~ the u.lterior objective. Secondly, motive refers to some personal benefit or
21 satisfactIOn whICh the actor desires whereas intention need not be so related to
circumstances that the act is intentionally done and constitutes a violation of the law. 29
actor. When A poisons B, the immediate objective is to kill B, and so this is A's
Here also, the use of the word "malice" is in the first sense ie, intentional wrong doing
intention. The ulterior objective of A may be to secure B's estate inheritance or under
which is also known as "malice in law". Thus, "Malice in law" means an act done
a will executed by him and this objective will be A's motive. Motive is generally
wrongfully, and without reasonable and probable cause, and not, as in common
22 irrelevant in tort. In Allen v Flood,30 Lord Watson said:
parlance, an act dictated by angry feeling or vindictive motive. "Malice in law" is
"implied malice" when from the circumstances of the case, the law will infer malice. . Although the f.ule may be otherwise with regard to crimes, the law of England does not take
Malice in the second sense, ie, improper motive, is sometimes known as "express malice", mto account motive as constituting an element of civil wrong. Any invasion of the civil ri"hts of
"actual malice" or "malice in foct" which are all synonymous expressions indicating the another person. is in itself a legal wrong, carrying with it liability to repair its necessary or ~atural
same meaning. Malice in this sense, ie, improper motive, is, for example, relevant in the cons.equen~es, Illsofar as these are injurious to the person whose right is infringed, whether the
motlve whICh prompted it be good, bad, or indifferent.
tort of malicious prosecution. The topics of "Intention" and "Motive" are hereinafter
·
dIscusse d separate1y. 23 An act which does not amount to a legal injury cannot be actionable because it is
3l
done with a bad motive. It is the act, not the motive for the act, which must be
2.3.2 Intention, Negligence and Recklessness regarded. If the act, apart from motive, gives rise merely to damage without legal injury,
Intention is an internal fact, something which passes in the mind and direct evidence the motive, however reprehensible it may be, will not supply that element. 32 The
of which is not available. "It is common knowledge that the thought of man shall not be exceptional cases where motive is relevant as an ingredient are torts of malicious
tried, for the devil himself knoweth not the thought of man.,,24 This dictum of Brian prosecution, malicious abuse of process and malicious falsehood. Motive is also relevant
CJ, only means that no one can be sure of what was in another's mind because what a in the torts of defamation, nuisance and conspiracy. In some cases, there may be a
person thinks can be inferred only from his conduct. An act is intentional as to its plurality of purposes and it may become necessary to decide as to what is the
consequences if the person concerned has the knowledge that they would result and also predominant purpose. For example, if persons combine to protect their own interests
25 and to cause damage to another person, they would be liable for the tort of conspiracy if
the desire that they should result.
the predominant purpose is to cause damage and damage results; but if the predominant
It is a case of "negligence" when the consequences are not adverted to though a purpose is protection of their legitimate interests, they would not be liable even if
reasonable person would have foreseen them?6 It is "recklessness" when the consequences damage is caused to another person. 33
are adverted to though not desired and there is indifference towards them or willingness
Cutting off underground water supply.-A, sank a well on his land and thereby cut off
the underground water-supply to his neighbour and B's well was dried up. It was not
19. Per Bayley, J, in Bromage v Prosser, (1825) 4 B & C 247, 255.
20. Per Bowen, LJ, in Mogul Steamship Company v McGregor, Gow 6- Co., (1889) 23 QBD 598, 612:
(1892) AC 25. 27. R v Harvey, (J 823) 2 B & C 257 (264).
21. Per Lord Watson in Allen v Flood, (1898) AC 1: 14 TLR 125. 28. Salmond,furisprudence, 12th Edn, (1966), p 37l.
22. Stockley v Hornidge, (1837) 8 C & P 11; Collector ofSea Customs v P Chithambaram, ILR (1876) 1 Mad 29. Salmond, Jurisprudence, 12th Edn, (1966), p 372.
89 (FB); Sova Rani Dutt v Debabrata Dutt, AIR 1991 Cal 186, p 189. 30. Allen v Flood, (1898) AC 1, 92. See also, Nan Kee v Au Pong, (1934) 13 Ran 175: AIR 1935 Rang 73(2).
23. See, titles 2.3.2 and 2.3.3, infra. 31. Stevenson v Newnham, (1853) 13 CB 285, 297; Vishnu v TLH Smith Pearse, ILR (1949) Nag 232: AIR
24. Per Brian, CJ, in Year Book Pasch. 17 Edw, 4 fol2, p12. 1949 Nag 362.
25. Salmond, Jurisprudence, 12th Edn, (1966), p 367 (footnote); Clerk and Lindsell, Torts, 15thEdn, p 44; 32. Per Lord Macnaghten in Mayor 6- C ofBradford v Pickles, (1895) AC 587, 601.
Winfield & Jolowicz, Tort, 12th Edn, (1984), p 44. 33. Crofter Handwoven Harris Tweed Co v Veitch, (1942) AC 435 (445): 166 LT 173: (1942) 1 All ER 142
26. Clerk and Lindsell, Torts, 15th Edn, p 44. Negligence as a separate tort is dealt with in Chapter XIX. (HL).
32 Law of Torts Chapter II
Chapter II Some General Elements in Torts 33
unlawful for a land-owner to intercept on his land underground percolating water and £. . 1 39
prevent it from reaching the land of his neighbour. The act did not become unlawful to penorm m a partlCu at manner," The terms misfeasance and non-
even though A's motive in so was to coerce B to buy his land at his own price. A, fea~anc~ are of very wide import but they cannot cover a case of breach of public duty
therefore, was held not to however improper and malicious his motive might whlCh IS not actuated with malice or bad such as defective planning and
be.
34 construction of a bundh. 4o

2.3.4 Distinctions IllJiutlYl1:ni 2.5. Fault

The distinctive features of a voluntary act and characteristic of different mental
It h~s be~n seen that damage caused to a person when no legal right is violated does
elements have been noticed above. These are highlighted by an admirable illustration
~ot g~ve nse t.o any. tortious liabi~ity 4~ven if the act causing the damage is done
given by Prof. Street:
mtentIonally wIth an Improper motIve. It has also been noticed that mental element
If a man throws a stone at a woman, his trespass to her person is intentional; that he threw it such as intention, negligence, malice or motive in association with an act or omission
because she had jilted him would be immaterial in determining his liability in trespass-that ,:hi~~ i~2 viola~ive o.f a..right recognised by law plays an important role in creating
would be his motive. If he did not throw the stone for the purpose of hitting her but ~ught to
have foreseen that it was likely that the stone would hit her, his act would be unintentional but
lJabIllty. TortIous hablhry here has an element of fault to support it. is, however
nevertheless negligent. If the stone hit her solely because it rebounded off a tree at which he had a sphere of tortious lia~iliry whi.ch is known as absolute or more properly, strict, wher~
thrown it, his conduct would be voluntary; and the hit would be accidental. But, if, while he ~he el.e~ent of ~aul~ IS. . co~splcuously a?sent. One of the important examples of
was holding the stone in his hand, a third party seized his arm and by twisting it compelled him ImpOS~tl~n of stnct lIabIllry IS the rule laId down in the case of Rylands v Fletcher, 43
to release his hold on it, whereupon it fell on the woman, his conduct would be involuntary and ,:herem It was held. t~at the oc.cupier of lan.d wh.o brings and keeps upon it anything
could never give rise to liability on his part. 35
hkel)'. to do damage If It escapes IS bound at hIS penl to prevent its escape and is liable for
Two comments here are necessary. In the case where the stone thrown at a tree the dl~ect consequences of its ~sca~~ ~:en. if he has not been guilty of any negligence. A
rebounds and hits the woman it is assumed that the risk that the stone on rebound may mo~e !~portant example of strict haolhty 1~4the rul.e laid down by the Supreme Court of
hit the woman could not be reasonably foreseen which negatives negligence, and, India 111 the .case of Me Mehta v UOL holdmg that an enterprise engaged in a
therefore, it is an accident though the act of throwing the stone is voluntaty. In this case hazardous or ll1herendy dangerous activity is strictly absolutely liable for the harm
also there will be no liability.36 In the last case, where a third person twists the afm of the the operation. of such ac~ivity. However, the principle is not applicable in
person holding the stone and the stone gets released, the act of the person holding the cases a trespasser by hIS own neglIgence intervenes in the of another and is
45
stone is involuntary and so he would not be liable for trespass; but, the person twisting harmed in the process. Another example of liability without fault is the liability of a
the arm and compelling the release of the stone so that it may hit the woman will be master for the tort committed by his servants in the course of There are
guilty of trespass. many duties and liabilities imposed by statutes on eg,
the Workmen's Compensation Act 1923,46 where the element of is absent. A
2.4. Malfeasance: Misfeasance: Nonfeasance increase in motor accidents gave rise to view,47 the victims and their W_!JC1.1Ud.H
should be allowed certain amount of compensation on no fault basis without
The term "malfeasance" applies to the commission of an unlawful act. It is generally ~o their right of getting higher compensation on the principle of fault and this was
applicable to those unlawful acts, such as trespass, which are actionable per se and do not Im~lem:nted in In.dia by the Motor Vehicles (Amendment) Act 1982. Damages from
require proof of intention or motive. The term "misfeasance" is applicable to improper radlOactlve properties of nuclear matter to person or pro perry of parties highlighted
performance of some lawful act, for example, when there is negligence. The term "non-
flasance" applies to the omission to perform some act when there is an obligation to
37 39. Kelly v Metropolitan Railway Co., (1895) 1 QB 944: 64 LJQB 658: 72 LT 55!.
perform it. Non-feasance of a gratuitous undertaking does not impose liability; but
38 40. Jay Laxmi Salt Works (P) Ltd v State ofGujarat, supra, p 504 0T).
misfeasance does. Where there is a duty towards the individual to do the act 41. See, title 1.3.3, Chapter 1, p 15.
the omission the injury is caused, the non-feasance of such an act gives rise 42. Tide 2.3, supra.
to a cause of action to the same extent as a of an act of which there is a 43. Rylands v Fletcher, (1868) LR 3 HL 330: LRl. Ex. 265. See further, XIX, title 19.2.1.
44. MC Mehta I} [f01, AIR 1987 SC 1086: (1987) 1 Comp LJ 99 (SC): (1987) 1 Supreme 65: (1987) 1
SCC 395. See further, Chapter XIX, title 19.2.2, p 546.
45. Mohd Quamuddin 1) [fOl (wp (C) 8525/2008), Decided on 08.07.2015 (58) Vibha Bakhru J, Delhi
34. Mayor 6- Co ofBradford v Pickles, (1895) AC 587.
High Court.
35. Street, Torts, 6th Edn, pI6.
46. Now see the Employee's Compensation Act 1923.
36. Fowler v Lanning, (1959) 1 All ER 290: (1959) 1 QB 426: Letang v Cooper, (1964) 2 All ER 929: (1965)
47. Kamla Devi v Krishanchand, AIR 1970 MP 168 : 1970 ACJ 310 (MF), P 313 : 1970 Jab L] 310 : 1970
1 QB 232 (CA).
37. Jay Laxmi Salt Works (P) Ltd v State ofGujarat, (1994) 4 SCC 1: J1" 1994 (3) SC 492, p 504. MPLJ 273: Bishan Devi v Sirbaksh Singh, AIR 1979 SC 1862: (1980) 1 SCC 273: (1980) 1 SCR 300 :
38. Elsee v Gatward, (1793) 5 TR 143. 1979 ACJ 496 (SC): Kashiram Mathur v Sardar Rajendra Singh, AIR 1983 MP 24 : 1983 ACJ 152
(MP), P 163: 1982 MPLJ 803 : 1983 Jab LJ 113.

b
 Chapter n Chapter II Some General Elements in Torts
34 Law of Torts 35

in international conventions led to imposltlon of strict liability by the Nuclear ~ama?es54 has the t?ndency of dete~ring the defendant to repeat and others in similar
Installation Act, 1965 (UK).48 Thus. at one extremity are the situations where damage SituatIOns
d' . . to11 commit
h the wrongs fore which damages are. award d I n view
. 0
f th ese
though intentionally caused is not actionable and at the other extremity are the IV~rSltle~ a .. t. at can be said is that if one has to discern some common factor in
situations where the law imposes strict liability without any fault of the defendant. tortious55.habdltles, that. factor56
is flexible public policy" and not fault W h'IC h m akes t h e
Between these two extremities lies the area where existence of fault in the form of courts and the legislature to recognise new concepts of right and dut t h
. . '1" WI Y 0 meet t e
intention, negligence or motive is essential to fasten liability on the wrongdoer. As stated nee d s 0 f ad vancmg CIVl ISatlOn. len public policy influenced b 'af"
. '1 " . Y SOCI JustICe or
by Holmes: Slm! ar other COnSl?eratiOns reqUIres that the plaintiff be compensated irrespective of
fault: the !aw pro:ldes for strict liability and where there are no such considerations,
As the law on the one hand allows certain harms to be inflicted irrespective of the moral
condition of him who inflicts them, so at the other extreme, it may on the grounds of policy publIc polIcy reqUl.res that the defendant should not be made to pay for the loss arising
throw the absolute risk of certain transactions on the person engaging in them, irrespective of fr~m . an event whICh he could not have avoided and so the law provides liability on
blameworthiness in any sense. Most liabilities in tort lie between these two extremes, and are pnnCIple of fault.
founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at
49
the time of acts or omissions which were its proximate cause.

The sphere of strict liability falling at one extremity is not insignificant and cannot be
ignored as a mere aberration and a theory propounded, as was done by S;>.lmond,50 that
fault is the basis of all tortious liability, The views of Salmond have not been shared by
others. 51 Apart from cases of strict liability, the rule that damages allowable are
proportioned to the damage or loss and not fault also negatives the theory of fault. For
example, slight negligence may unfortunately cause severe damage to a plaintiff and the
defendant may have to pay huge amount as compensation; whereas, gross negligence
may fortunately cause insignificant damage and the plaintiff may then be allowed only
nominal compensation. Moreover, prevalence of insurance both optional and
compulsory52 to cover risk and liability has diluted the deterrent facwf in the award of
compensation. This is not to say that we have reached the stage when the element of
fault can be ignored. It has already been stated that the wide area falling within the t\'VO
extremities of no liability and strict liability is covered by torts where fault in the form of
intention, negligence or motive is essential to fasten liability. There are also instances
where situations originally falling within the sphere of strict liability have moved
upwards and are now embraced within the area of fault liability. For example, the tort of
trespass to person which was initially thought to be of strict liability has now come to be
recognised as one requiring negligence of the defendant as an essential ingredient. 53
Further, although the practice of insuring risk and liability is growing (it is compulsory
in respect of accidents arising out of use of motor vehicles) it has not become so wide as
to cover all forms of risks and liabilities and the award of aggravated and exemplary

48. Blue Circle Industries P!c v Ministry of Defence, (1998) 3 All ER 385, p 404: (1999) 1 \x'LR 295: 1999
Eny,L.R. 22 (CA),
49. Holmes, The Common Law, p 116, Setalvad, The Common Law in India, p 108,
50, Salmond, Torts, 6th Edn, pp 12, 13. 54, ~{lSSell & Co ~td v Broome, (1972) AC 1027: (1972) 2 WLR 645 (HL).
51. Pollock, A Pieafor HistoriL'alinterpretation, (1923) 39 LQR 164 (167); Winfield and Jolowicz, Tort, 55. The conception of. legal :esponsibility may develop in adaptation to altering social conditions and
12th Edn, (1984), p 25; Salmond & Heuston, Torts, 20th Edn, (1992), p 24, Clerk & LindseH, Torts, standards, The c:lten~n of Judgment must adjust and adopt itself to the changing circumstances oflife."
15th Edn, pp 10 (11). Per Lor~ MaCl:llllan m ?on01!hue v Stevenson, (1932) AC 562 (619): 48 TLR 494 (HL), See, further
52. For example, section 93 of the erstwhile Motor Vehicles Act, 1939 as amended by Act 47 of 1982 and observa:lOns ot Bhagwan9' m MC Mehta v UOI, AIR 1987 SC 1086: (1987) 1 SCC 395, P 420 and
now sections 145 to 164 of Motor Vehicles Act, 1988 provide for compulsory insurance to meet claims, of SahaI, J, mfay Laxmz !:lalt Works v State ofGujarat, (1994) 4 SCC 1 : (1994) 3 JT 492, 501 which
arising both on the basis of fault principle and no fault principle. are quoted at p 4 ante. p ,
53, Fowler v Lanning, (1959) 1 All ER 290: (1959) 2 \x'LR 241; Letang v Cooper, (1964) 2 All ER 929: 56. For example, The Wo~kmen's Compensation Act 1923 (Now see the Employee's Compensation Act
1923); The Motor VehIcles (Amendment) Act 1982.
(1964) 3 WLR 575 (CA),
 SYNOPSIS
3.1 Convicts and Persons In 3.7 Insolvent .................................... 48
Custody ..................................... 37 3.8 The State and Its Officers .......... 48
3.2 Alien Enemy .............................. 39 3.8.1 English Law .................. 48
3.3 Husband and Wife .................... 40 3.8.2 Indian Law .................... 50
3.4 Corporation ............................... 41 3.9 Foreign 72
3.4.1 Highway authority ........ 45 3.10 Ambassadors .............................. 74
3.5 Unincorporated Associations ..... 47 3.11 Minor ........................................ 75
3.6 Trade Unions ............................ 47 3.12 Lunatic ...................................... 78

All persons have the capacity to sue and be sued in tort. however, is a general
rule and is subject to modification in respect of persons.

3.1. Persons Custody

Under the Forfeiture Act, 1870,1 a convict whose sentence was in force
unexpired, and who was not "lawfully at large under license" could not sue for an
injury to his property, or for recovery of a debt. This has been removed the
2
Criminal Justice Act, 1948. Under the English law, a convicted person, in spite of
imprisonment, retains all civil rights which are not taken away or by necessary
3
implication. The conviction and sentence by a court rules of
curtail the liberty of a convict, subject to that the courts remain
ultimate custodians of his rights and in the same manner as are in respect
4
of other citizens. A convict can, therefore, under English law sue for wrongs to
person and property like any other citizen. The Indian law is the same. "Convicts are
not, by mere reason of the conviction, denuded of all the fundamental rights which they
otherwise possess. A compulsion under the authority of law, following upon conviction,

I. 33 & 34 Vic., c. 23, sections 8, 30 (Now repealed).

2. 11 & 12 Geo, VT, c 58, schedule 10, Part I (Now repealed),
3. Raymond v Honey, (1982) 1 All ER 756, p 759 : 1983 AC 1(Hl.).
4. R. v Hull Prison Board of Visitors, ex parte St German, (1979) 1 All ER 701 (CA), p 716; Leach v
Parkhurst Prison Deputy Governor, (1988) 1 All ER 485 (Hl.), p 501; R v Deputy Governor ofParkhurst
Prison, (1991) 3 WLR 340 (Hl.).

37
 Chapter III Personal Capacity 39
38 Law of Torts Chapter III

s~eech ~nd,.subject to rules relating to prison discipline, he cannot merely communicate

to live in a prison house entails by its force the deprivation of fundamental freedoms like
~!th ~IS friends and relations but also with a journalist with a request to further
the rights to move freely throughout the territory of India or the right to practise a
InVeStigate the case for proving his innocence and for showing that his conviction has
profession. A man of profession would thus be stripped of his right to hold consultations
resulted in miscarriage of justice.]2
while serving out his sentence. But the Constitution guarantees other freedoms like the
right to acquire, hold and dispose of properry for the exercise of which incarceration can "~ ~le~~er .of ~~rliam~nt as an under tri~ prisoner is not above the law and is subject
be no impediment. Likewise, a prisoner or even a convict is entitled to the precious right to pd dlsclplme. But If he won the electIOn contesting from jail he can be allowed to
guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or take oath as M.P. but he has to be brought back to jail taking oath. 14
personal liberty except according to procedure established by law."s Conviction of a
~ut a prisoner has no 'residual liberty' to sue for false imprisonment for breach of
person, thus, does not draw any iron-curtain between him and his rights and he is not
pnson r~les ego whe~ he is segregated in breach of these rules but he can challenge the
reduced to a non-person. 6 A convict can, therefore, sue in tort for vindication of his
segregation by a publIc law remedy eg, a writ petition; and if conditions detention are
right which is invaded by a tortious act committed by another. He can thus sue for
so i~tolera~;e ,~ha~ his health ~uffers he ~ay also have a private law remedy of suing in
battery or assault if prison authorities apply excessive force to enforce prison discipline or
~eghge~ce.. Similarly, detentlon of a pnsoner during the period he would have been at
apply force for an improper purpose.? A convict was attacked by another convict in Jail
hberty If hIS case had been considered "speedily" as mandated under section 5(4) of
and killed due to failure ofJail authorities to protect him. In a petition under Article 32
Human Rights Act, .1998 does not amount to false imprisonment or illegal detention. 16
of the Constitution by the dependants of the deceased they were awarded Rs 1,00,000 as
However, award of damages as compensation can be made for the frustration and
compensation against the State for violation of the fundamental right of life protected
anxiety which the prisoner may have suffered on account of the delay. 17
under Article 21. g
The State has a higher responsibility in respect of persons in its custody to ensure that
9 3.2. Alien Enemy
they are not deprived of their right to life. The same principle is applied to a patient
detained in a Mental Health Hospital. Where there was a real and immediate risk of a By an alien enemy is meant a person of enemy nationality or a person residing in or
detained patient committing suicide, was an operational obligation on the carI?'ing on business in enemy territory, whatever his nationality. IS Even a British
authorities to do all that could be expected to prevent it. When a patient absconded subject or a ~e.utral residing voluntarily or carrying on business in enemy territory is in
because of negligence of the authorities and committed suicide, the public authority the same positIOn as a subject of hostile nationality and he will be treated as an enemv
responsible for the hospital was held liable in damages to the daughter of the patient for aj'len. 19 An enemy al'len cannot sue III
. h·IS own nght.
. 20·
He cannot maintain an action'
deprivation of right to life under the Human Rights Act, 1998 (UK).IO unless by virtue of an Order in Council, or unless he comes into the British Dominions
under a flag of truce, a cartel, a pass, or some OIher act of public authority putting him
Among the rights which, in part atleast survive to a prisoner are "three important 21
rights closely related but free-standing, each of them calling for appropriate legal in the King's peace. An alien enemy residing within the realm bv the or tacit
protection: the right of access to a court, the right of access to legal advice, and the right licence of the Crown is temporarily free from his enemy chara~ter can invoke
to communicate confidentially with a legal advisor under the seal of legal professional jur~s~icti.on of ~ou~ts.22 Similar principles, it would seem, ;pply in India. Alien enemies
privilege. Such rights may be curtailed only by clear and express words, and then only to resl~lllg III IndIa WIth t~e permission of the Central Government, and alien friends, may
the extent reasonably necessary to meet the end which justifY the curtailments" .11 sue III any court otherwise competent to try the suit, as if they were citizens of India, but
Further, a convicted person is not deprived of his fundamental right of freedom of alien enemies residing in India without such permission, or residing in a foreign country,
shall not sue in any such court?3 Every person residing in a foreign country, the

5. DBY Patnaik vAP, AIR 1974 se 2092, p 2094: (1975) 3 sce 185: 1975 Cr LJ 556; see further, DK
12. R v Sec-retill], ofState flrthe Horne Department, (1999) 3 All ER 400 (HL).
Bam v State of West Bengal, AIR 1997 SC 610, pp 618, 619 : (1997) 1 SCC 416; State of Andhra
13. &/yan Chandra SarkaI' v Rajesh Ranjan alias Pappu Yadau, (2005) 3 sec 284: AIR 2005 se 972 : (2005) .3
Pradesh v Challa Ramkrishna Reddy, (2000) 6 JT 334, pp 345 to 347 : AIR 2000 SC 2083, pp 2088 to SCC 307 : AIR 2005 se 4041.
2092 : (2000) 5 SCC 712. 14. Kalyan Chandra Sarkar v Rajesh Ranjan alias Pappu Yadav, (2005) 3 sce 311.
6. Sunil Batra v Delhi Administration, AIR 1978 se 1675, p 1727 : (1978) 4 sec 494. For directions of
15. Ha!f1e v Deputy Govemor ofParkhurst Prison, (1991) 3 All ER 733 (HL) : (1991) 3 WLR 340 (HL).
the Supreme Court for jail reforms, see, Rama Murthy v State ofKarnataka, AIR 1997 SC 1739 : (1997) 16. R (james) v Secretary ofState for Justice [2010] 1 AC 553.
2 SCC 642. For direction for payment of equitable wages to prisoners from whom work is taken, see, 17. R (on the applicatioll ofFaulkner) v Secretar], ofState for Justice [2013] UKSC 2.3.
State ofGujarat v Hon'ble High Court ofGujarat, AIR 1998 SC 3164. 18. Scotland v South African Territories (Limited), (1917) 33 TLR 255.
7. R v Deputy Governor ofParkhurst Prison, (1990) 3 All ER 687 (CA), p 709.
19. Porter v Freudenberg, (1915) 1 KB 857, P 869; Sovracht (VO) v Van Udens Scheepvarten Agentuur
8. Smt Kewal Pati v State of UP, (1995) 3 sec 600 : (1995) 2 SCALE 729 : 1995 ACJ 8"9. Maatschappij (NVGabr.), (1943) AC 203 (HL).
9. See text and foomote 150, p 60. 20. De Wah! v Braune, (1856) 1 H & N 178.
10. Savage v South ESSeX NHS FflUndatirm Trust, (2009) 1 All ER 1053 (H.L.i: s~e o.i.w. Raborte
21. The Hoop, (1799) 1 Rob 196,201.
v Pennine Care ]\TflS Foundttion Trust [2012] UKSC 2.
22. Johnstone v Pedlar, (1921) 2 Ae 262: 37 TLR 870: 90 LJPe 181 : 125: LT 809.
1L R v Secretary ofState Jor the Home Department, B: Parte Dafy, (2001) 3 All ER 433. P 437 : (7001) UK HL 26
23. Civil Procedure Code, Act V of 1908, section 83.
: (2001) 2AC 532: (2001) 2WLR 1622: (2001) 3 All ER433 (HL).

t
40 Law of Torts Chapter III
Chapter III Personal Capacity 41
Government of which is at war with India and carrying on business in that country
without a licence on that behalf granted by the Central Government is deemed to be an sue f~r ~ny tort comm~tted against hi~ without joining wife. Each of the spouses
alien enemy residing in a foreign country?4 can slmdarly be .sued In tort by a third parry without joining the other as a parry.
Further, a conspIracy between husband and wife is capable of giving rise to tortious
· b'l'
IIa 1 ny. 30
3.3. Husband and Wife
The common law relating to married women suffered from serious anomalies. A 3.4. Corporation
married woman could not sue for any tOft committed by a third person unless her
husband joined with her as plaintiff. She could also not be sued for a tort committed by A Corp.orarion is a.legal person. It may, like the State Bank of India, a University or a
her unless her husband was made a defendant. Further, she could not sue her husband Metropolitan Couned, be created by an Act of the legislature; or it may, like a company
and the husband could not sue her for any tort committed by one against the other. be created under an Act of the legislature. The common features of Corporations are a
These anomalies have been by and large removed by legislation. By the Married name, perpetuity of existence and capacity to sue and be sued.
25
Women's Property Act, 1882 and the Law Reform (Married Women and Tortfeasors) Suits by Corporations.-A Corporation cannot obviously bring a suit for torts which
Act, 1935,26 a married woman can sue for any tOft committed by a third person and can are only wrongs against living persons, eg, assault and false imprisonment. It cannot also
also be sued for any tort committed by her without joining her husband who cannot be sue for a tort committed essentially against its shareholders or employees unless the tort
made liable or made party to a suit simply because he is the husband. Finally, by the has. a~so some impact on the governance or business or property of Corporations.31
Law Reform (Husband and Wife) Act, 1962,27 each of the parties to a marriage has the ThiS IS for the reason that a Corporation's personality is different and distinct from
same right of action in tort against the other as if they were not married but the court individ~als constituting. it and the employees acting for it. Subject to these general
has a discretion to stay the proceedings to prevent them from using it as a forum for reservatlons, a Corporation can sue for torts committed against itself. A Corporation can
trivial domestic without any chance of substantial benefit to either of them. The thus sue for malicious presentation of a winding-up petition 32 or a libel charging it with
aforesaid anomalies removed by legislation resulted from the doctrine of the common .InSO 1vency or Wit
. h d'ISh
onest or'l11competent management. 33 It was once that a
law that marital status made the husband and wife one person in the eye of law, a Corporation cannot maintain an action for libel charging it with corruption for it is only
doctrine which was used to reduce the wife to a subordinate position. Marital status of
individuals and not the Corporation who can be guilty of such an offence. 34 However,
Hindus, Buddhists, Silms, Jains and Muslims in India is governed by their personal laws
certain authorities show that this view is erroneous and that a trading corporation is
and not by the common law. Neither does marriage under these personal laws the
entitled to sue in respect of defamatOlY matters which can be seen as having a tendency
capacity of the for suing or for being sued, nor does it confer any protection to to damage it in the way of its business. 35
any of the spouses for any tortious act committed by one against the other. A, regards
other persons, eg, Christians who in respect of the marital status may have been subject A limited liability company, no less than an individual, can maintain an action for
to the common law, the anomaly to some extent was removed by the Married ~omen's without proof of special damage, where words are calculated to injure its
Property Act, 1874, under which a married woman to whom the Act applies can sue or reputation in relation to its trade or business. 36
be sued alone. Even if there was ever any anomaly in the Indian law similar in any
. SUi:s against Corporations.-The existence and extent of the of a corporation
manner to those in the common law, it could not survive the impact of the Constitution
m actIOns of ton were at one time a matter of doubt, due partly to technical difficulties
which, under Article 14, embodies a guarantee against arbitrariness and
28 of procedure and partly to the theoretical difficulty of imputing wrongful acts or
unreasonableness. The legal position, therefore, appears to be that marriage has no intentions to fictitious persons??
effect on the rights and liabilities of either of the spouses in respect of any tort
committed by either of them or by a third party. The wife can sue the husband for any A corporation is undoubtedly liable for torts committed its agents or servants to the
iort committed by him against her and the husband can sue wife for any torr same extent as a principal is liable for the torts of his agent or a master for the torts of his
29
committed by her him. The wife against whom a tort has been committed by servant, when the ton is committed in the course of doing an act which is within the
another person can sue him without joining the husband and similarly husband can
30. Midland Bank Trust Co Ltd v Green (No.3), 1979 Chapter 496 : 1982 chapter 529 (CA).
31. Bognor Regis UDC v Campion, (1972) 2 QB 169: (1972) 2 WLR 983.
24. Explanation to section 83 Civil Procedure Code. Bur, see, Manaseeh Film Co v Gemini Picture Circuit, 32. Quartz Hill GoldMining Co v Eyre, (1883) 11 QBD 674.
AIR 1944 Mad 239. 33. Metropolitan Saloon Omnibus Co v Hawkins, (1889) 4 Hd No. 87: 28 LJ Ex 201.
25. 45 & 46 Vic., c 75, section 1 (Now repealed). 34. Mayor of Manchester v Williams, (1891) 1 QB 94.
26. 25 & 26 Geo. V, c. 30, section l. 35. Derbyshire County Council v Times News Papers Ltd, (1993) I All ER 1011, P 1017: 1993 AC 534
27. 10&11 Eliz. 2,c. 48. (HL). See further, D 6- L Caterers Ltd v D'Ajou, (1945) 1 KB 364; National Union of General and
28. Ajay Hasia v 1981 SC 487, 498,499: (1981) i SCC 722. Municipal Workers v Gillan, (1946) KB 81 : (1945) 2 All ER 543; Willis v Brooks, (1947) 1 All ER 191 :
29. See, Church v Church, (l983) 133 NL] 317, damages were allowed in an action for 62 TLR 745; South Heton Coal Co Ltd v HE. News Association Ltd, (1894) 1 QB 133.
between spouses; cited in Winfield and Jolowicz, Tort, 12th Edn, p 690, footnote 39. 36. D 6- L Caterers. Ld v. D'Ajou, (1945) 1 KB 364 : 114 LJKB 386 (CA).
37. Per Lord Bramwell in Abrath v North Eastern Railway Co, (1883) 11 App. Cas 247: 55 LT 63.
 Law of Torts Chapter III Chapter III Personal Capacity
42 43

scope of the powers of the corporation. It may thus be liable for assault, false A corporation which is created by a statute is subject only to the liabilities which the
imprisonment, trespass, or negligence?8 It was tho~ght at one time that legislature intended to impose upon it. The liability must be determined upon a true
a corporation could not be for wron?s mah~e or fraud on interpretation of the statute under which it is created. 47 A corporation is liable even if it
ground that to support an action for such a wrong It must be that :he wr~ng-doer is incorporated for public duties from the discharge of which it derives no profit. 48 A
was actuated by a motive in his an d " a corporation as no mm d" .3 But
. h . government authority or corporation created by a statute is liable like
alter ego doctrine later has solved the difficulty. In the of VIScount any private body unless otherwise provided by statute. 49 If conduct, when committed by
Haldone LC: a private person or body is tortious, it would equally be tortious when conducted by a
public authority. 50 It has thus been held that a Development Authority is liable to a
A corporation is an abstraction. It has no mind of its own an?, more than it h~s a body of its
own; its active and directing will must consequently be sought In :he ~erson. of someb?dy who consumer under the Consumer Protection Act 1986. 51
cor some purposes may be called an agent, but who is really the dlrectlng mmd and will of the
l' . r h . 40 There is a difference of opinion on the question whether a corporation is liable for a
corporation, the very ego and centre of the personalIty or t e corporatlon.
tortious act of its servants which is ultra vires the Corporation. One view is that the
52
The doctrine stated above attributes to the corporation the mind and will of the corporation is not liable the reasoning being that the corporation could not have
natural person or persons who have management and control of the actions of the empowered the servant to do an act which the corporation itself has no power to do.
corporation in relation to the act or omission in point. 41 By app l'
ymg t l'
lIS
. 0f
d o~tr1ne
attribution as further explained by the Privy Council,42 a company may be held lIable for [Footnote No. 46 Contd.J
the fault of an employee acting in the course of employment even though the employee 392, (1900) 1 QB 22; Rayson v South London Tramways Company, (1893) 2 QB 304 : 69 L.T. 491;
43 . 44 I .
acted contrary to the orders of the company or wlth a .corrupt purpose. t 1S ~ow Mg. Kyaw Nyun v Maubin Municipality, (1925) 4 Burma LJ 139; Chhaganlal v Thana Municipality,
settled that a corporation is liable for wrongs even of malIce and fraud. A corporation, (1931) 34 Bom LR 143, 56 Born 135; contra, Stevens v Midland Counties Railway Co., (1854) 10 Ex.
. or c 352; Henderson v. The Midland Railway Company, (1871) 24 LT 881; Abrath v North Eastern
therefore, may sued for malicious prosecution ror d ' 45
ecelt. Railway Co, (1886) II App Cas 247; CS Co'operative Credit Society Ltd. v Becharam, (1938) 42
CWN 1219; for fraud (Mackay v. Commercial Bank of New Brunswick, (1874) LR 5 PC 394;
It is also settled that an action for a wrong lies against a corporatio~ where Houldsworth v City of Glasgow Bank, (1880) 5 App Cas 317; for distress (Smith v The Birmingham
the thing done is within the purpose of the incorporation, and it has been done m s~ch a Gas Company, (1834) 1 A & E 526); for trespass (Maund v The Monmouthshire Canal Company,
manner as to constitute ,vhat would be an actionable wrong if done by a pnvate (1842) 4 M & G 452); for assault (Eastern, Counties Railway Co v Broom, (1851) 6 Ex. 314; Butler v
individual. 46 Manchester, Sheffield, and Lincolnshire Railway Co., (1888) 21 QBD 207); for conversion
(Yarborough v The Bank of England, (1812) 16 East 6); for nuisance (Borough of Bathurst v
Macpherson, (1879) 4 App Cas 256); for negligence (Gilbert v Corporation of Trinity House, (1886)
38. Mersey Docks Trustees l' Gibbs, (1866) LR 1 HL 93; Criminaljustice Society v UOI, AIR 2010 Del 194. 17 QBD 795; The Rhosing (1885) 10 PD 131; Dormont /1 Furnes Railway Co., (1883) 11 QBD 496;
In a Public Interest Litigation, the Ddhi High Court awarded compensatlon to a ':1'ldow, whose Scott v Mayor ofManciJester, (1856) 1 H & N 59; Cowley v Mayor, etc. ofSunderland, (1861) 6 H &
husband succumbed to injuries as a result of falling in a pit on the road which was n:eant to be co~ered N 565; Mersey Docks Trustees v Gibbs, (1866) LR 1 HL 93; McCelland v Manchester Corporation,
by the Municipal Corporation. On account of negligence, the MUl11Clpal Corporation was held lIable (1912) 1 KB 118).
for the acts of its agents. A trade union registered under the Trade Union Acts, 1871 and 1876 (34 & 35 Vic., Co 31 and 39 &
39. Stevens v Midland Counties Ry. Co., (1854) 10 Ex. 352. 40 Vic., c. 20) may be sued in its corporate name: Tail Vale Ry. v Amalgamated Society of Railway
40. Lennard's Carrying Co Ltd v Asiatic Petroleum Co. Ltd., (19] 5) AC 705, p 713: 113 LT 195 (HL). Servants, (1901) AC 426. BlIt this decision has been overruled by section 4 of the Trade Disputes Act,
41. EL AJou v Dollar Land Holdings pIc, (1994) 3 All ER 685 (CA) , pp.695, 696 : (1994) 1 BCLC 464. (1906), (6 Edw. VII, c. 47), which says that no Court is to entertain any action for tort brought against
42. Meridian Global Funds Management Asia Ltd. v Securtttes CommisSIOn, (1995) 3 All ER918 (PC), pp. a trade union or against any members on behalf of themselves and all other members of the union.
922 to 926 : (1995) 2 AC 500 : (1995) 3 WLR 413 (PC); Jetivia SA v Bzlta Ltd. (In Llqmdatzon) and 47. Mersey Docks Trustees v Gibbs, (1866) LR 1 HL 93, 104.
others [2015J UKSC 23 see further GP Singh, Principles of Statutory lnterpretafton, 10th Edn, pp 864 to 48. Mersey Docks Trustees v Gibbs, (1866) LR 1 HL 93, 104; The Bearn, (1906), p 48.
49. Lucknow Development Authority vMKGupta, AIR 1994 SC 787: (1994) 1 SCC 243: (1994) 80 Com
871. Cases 714.
43. Re Supply ofReady Mixed Concrete (No.2), (1995) 1 All ER 135 (HL).
50. Dorset Yacht Co Ltd v Home Office, [1970J AC 1004: [1970J 2 ALL ER 294; see also, Robinson v Chief
44. Meridian Global Funds .Manao-ement Asia Ltd. v Securzttes CommiSSIon, supra, p 926. Constable of West Yorkshire Police, [2018J UKSC 4: [2018J AC 736.
45. Barwick v English Joint Stock Bank, (1867) LR 2 Ex. 259; Citizen Lift Assurance Co v ~rown, (1904) AC
51. Lucknow Development Authority v MK Gupta, AIR 1994 SC 787 : (1994) 1 SCC 243 : (1994) 80 Com
423; Ahmedabad Municipality v Panubhai, (1934) 37 Born LR 468; MP Trust v Safiulla and Co, AIR
Cases 714; Ghaziabad Development Authority v Balbir Singh, AIR 2004 SC 2141 : (2004) 5 SCC 65 :
1965 Mad 133. , El (2004) 121 Com Cases 409.
46. A corporation is held liable for libel (Whitfield v South Eastern Railway Company, (1858) El Bl & 52. The leading case on the subject is Poulton v London and SW Ry Co, (1867) LR 2 QB 534. In that case a
115' Nevill v Fine Arts & General Ins Co, (1895) 2 QB 156; Citizens' Lift Assurance Co. v Brown,
station-master in the employ of the defendant company arrested the plaintiff for renlsing to pay the
(1904) AC 423) : 20 TLR 497; for acts of misfeasance by its servants (Green v London General freight for a horse that had been carried on the defendant's railway. The railway company had authority
Omnibus Co, (1859) 7 CBNS 290); for fraudulently trading in the name of another (Lawson v The under the Act of Parliament to arresr a person who did not pay his fare but none to arrest a person for
Bank ofLondon, (1856) 18 CB 84); for false imprisonment, Goff v Great Northern ~~tlway Compa.ny, non-payment for the carriage of goods. It was held that the railway company was not liable. The
(1861) 3 E & E 672' Lambert v Great Eastern Railway, (1909) 2 KB 776); for mahclOUS prosecutlon company having no power itself to arrest for such non-payment, it could not give the station-master any
(Edwards v Midland Railway Co, (1880) 6 QBD 287; Cornford v Carlton Bank Limited, (l899~ 1 QB power to do the act. The plaintiffs remedy for the illegal arrest in such a case would be against the
[Footnote No. 46 Contd.J station-master only.
44 Law of Torts Chapter III
Personal 45
This view was taken at a time when the basis of vicarious liability was to be an
"implied authority" master for the tortious act. It is now that the created the law of
59
real test for the master's vicarious liability is not the existence of any
implied of the tort the servant "in the course of
employment". is that a corporation is liable
for a tortious act its servants even it is ultra vires provided it is done in the
course of from vicarious a corporation will be directly
for a tortious act, even if it is ultra vires its powers, if it is authorised or by
those who constitute the "directing mind and will of the corporation."S4 In Campbell v
Paddington Corporation,55 a was erected in a highway in pursuance of a resolution
passed by the borough which a public nuisance and which the
had no to erect. In a suit by a person who special the its
corporation was as the act was authorised by its council:
To say because the borough council had no to erect it, therefore, the
corporation cannot be is to that no corporation can ever be sued for any tort or
wrong. The only way in which corporation can act is its council, and the
resolution of the 1S the authentic act of the corporation. If view of the
defendants were correct no ever be sued if the Directors the
resolution did an act Company
56
no power to do.
57
The view taken in this case has met the of the leading text-books.

In it has down that:

Whatever there may be on the question of the legal
as to how far an or servant of a can be said to act within the
scope of his in respect of a tort
to be clear that there is consensus for holding that a cannot be
immune from liability in respect of torts brou~ht about at its instance on the ground
that the act was not intra vires the .8

53. Winfield and Jolowicz, Tort, 12th Edn, p 692, Salmond and Heuston, Torts, 20th Edn, p 442; Clerk
and Lindsell, Torts, 15th Edn, p 136. But the Corporation may not be liable if the appointment of the
servant is itself ultra vires.
54. Lennard's Carrying Co. v Asiatic Petroleum Co, (1915) AC 705, p 713: 113 LT 195 (HL). In this case a
59. 1532;
corporation was held guilty of "actual fault" within the meaning of the Merchant Shipping Acts. See v Colts Patent Firearms Co.,
further, pp 39-40, supra.
55. Campbell v Paddington Corporation, (1911) 1 KB 869 : 104 LT 394 60. Union v UOI, 1988 MPL] 540. See, Prof DVN Reddy, Industria! Disasters
56. CampbellvPaddington Corporation, (1911) 1 KB 869, P 875. Responsibility ~ Corporatzons and the Home and Host States, (1992) vol 5, Central Indian
57. Clerk & Lindsell, Torts, 15th Edn, p 137; Winfield & Jolowicz, Tort, 12th Edn, p 693; Salmond & Lilw Quarterly 170, 1/1 to 1;5. Prof Reddy states at p 173 : "The present trend in swes
Heuston, Torts, 20th Edn, p 422. especially in the IS to hola the parent company liable to make reparations for the enVlf()!1mental

58. Tiruveriamuthu Pillai II Municipal Council, AIR 1961 Mad 230 : (1961) Mad 514 : 1961 Kerala LT damage caused their under capitalized subsidianes engaged in ultrahazardous industrial acnvlties" ;nd
153 : 74 MLW 104 : The plaintiff's dog was kiUed by the employee of a Municipal Council in the cItes Tilylor v Gas ilnd Electronic Company, 306 USA (1939), p 309 in support.
61. Pramadil Nath Roy v Shebatt Puma Chandra Roy, (1908) 7 CL] 514.
course of the discharge of his function of killing stray dogs in the Municipal town expressly authorised 62. Per Lord Molson Il1troducing the Bill to amend the common law rule. See Salmond & Heuston T 'f
by the Council. In an action by the plaintiff for damages against the Council for the loss of the dog, 18th Edn, p 86. " oz s,
held, that the Council was liable for the unlawful act of having brought about the destruction of the
63. The Act as expressed in section 58 (3) binds the crown.
plaintiff's dog and the fact that the Council acted in excess of its statutoty powers was not a defence to
the action but was only an aggravating circumstance. 64. ~;;e~;6~~Lf~tssex County Council, (2000) 3 All ER 603, pp 608-610 : (2000) 1 WLR 1356 : 2000
 Chapter III Chapter III Personal Capacity
46 Law of Torts 47

sufficient signs giving warning to motorists that they were approaching a dangerous part It has also been the House of Lords that the existence of the broad law
of the road. 65 The statutory dury does not also extend to carrying out work on land not duty in section 39 of Road TrafEc Act that 'each local authority must prepare and
forming part of the highway and the highway authority may also not be held to be in carry out a programme of measures designed to promote road did not generate a
breach of its common law duty of care in failing to cause an obstruction to be removed common law duty and a private law action 73

which restricted visibility and which contributed to an accident resulting in personal

injury.66 The Act has been construed to confer a right of action only to users of the
highway who could prove that they had suffered physical injury to person or property
while using the highway when it was in a dangerous condition due to want of repair or Unincorporated no corporate existence
maintenance, and it has been held that the Act confers no right of action for purely cannot, speaking generally, sue or be sued in names.
67 of such an association has to be sued personally for tort committed
economic loss resulting from the highway being in dangerous condition.
by 74 The provisions of Order 1, rule 8 of Code of Civil
The rule of the common law as existed before the Act was not based on any principle be availed of if all the or a number of them to
of justice, equity and good conscience and should not have been applied in India; but, it though not a legal entity can sue or be sued in the name XXX the
was followed in some cases. 6S Its abrogation in the country of its origin on the 'ground Co~e .of Civ!l Pr?cedure. An association is registered as a society under
that it was anomalous and unjust now leaves hardly any justification for its further SOCIetleS RegIstration Act, 1860 can, as provided in section 6 of the said Act sue or be
69
application in India. Other common law countries have also departed from the sued i~ na~e of its President, Chairman or Principal Secretary, etc., ~s may be
common law rule and are inclined to apply the general principle of negligence to a deter~1med by ~t~ rules or regulations or by a resolution of _ Governing Body when
· hway auth
hIg ' 70
onty. there IS no proVISIOn on that point in the rules or regulations. 7 )
Under the Indian law, the duty to repair and maintain a highway laid on a local
authority or a Government is governed by statutory enactments and the question 3.6. Trade Unions
whether in a particular case a suit lies for damage due to non-repair would depend upon
the construction of the relevant statutory provision and not on any principle of the The ~nglish law i~ the. context of trade unions gave recognition to a theory that there
common law and prima facie there is no reason to deny liability unless it is expressly or may eXIst a legal entIty Without any corporate existence. In Taft Vale Ry. v
7l
by necessary implication negatived by the statute. If in a given case the relevant Indian Society of Railway Servants,76 it was held that a registered trade union, though not a
statute is silent on any matter and it is necessary to look beyond its provisions for corporate body was a legal entity, could be sued in tort for the acts of its
guidance, rules of English law as now contained in the Highways Act, 1980 and not the ofF:cers. Similarly, in Bons~r v A1usicians Union,77 an action by a member against a trade
rules of the common law may be taken notice of and applied for the Act is consistent umon for wrongfUl expulSIOn was upheld on the ground that the union was a
with the principles of justice, equity and good conscience. In one of the cases, Highways
department of the State of Tamil Nadu was held liable by the Supreme Court for [Footnote No. 72 ConteL]
negligence when a public transport vehicle plunged into a river on collapse of culvert on liable for payment of compensation. UP Sharma v Jabalpur Corporation, AIR 2010 (NOC) 919 (M.P.),
the highway.72 wherein a man skidded from his morofcycie because of sand lying on public street and suffered
FaJiure was held ro be on parr of Municipal Corporation and was thus held liable for of
compensation; See further on similar issue, P Ra1!ichanclran v Government of Tamil Nadu, 109
65. Gorringe v Calderdale Metropolitan Borough Council, (2004) 2 All ER 326 (HL). AlC 875 (Mad) : (20ll) 6 CTC 636.
66. Stovin v Wise, (1996) 3 All ER 801 : 1996 AC 923: (1996) 3 WLR 388 (HL). 73. Gorringe v Calderdale Metropolitan Borough Council, (2004) 2 All ER 326 (HL). See further Stovin v
67. Wentworth v Wiltshire Country Council, (1993) 2 All ER 256: 1993 QB 654: (1993) 2 WLR 175 (CA). Wise, (1996) 3 All ER 801 (HL) and Rajkot Municipal Corporation v JaYllntilal Nakum,
68. Achratlal v Ahmedabad Municipality, (1904) 6 Born LR 75 : ILR 28 Born 340; Mohanla! v Ahmedabad AIR 1998 SC 640 discussed at pp 475, 476; See further, Regional Transport Officer v PS"Rajendran
Municipality, (1937) 40 Born LR 552: ILR (1938) Born. 696; District Board, Badaun 1) Sri Niwas, (1942) (2010) 2 LW 440 (Madras High Court).
ALJR 619; Rahim Bakhsh v Municipal Board, Bulandshahr, (1939) ALJR 101 : AIR] 939 All 213. 74. Brown v Lewis, (1896) 12 TLR 455; Bradley Egg rarm Ltd v Clifford, (194.3) 2 P-JI ER 378, Prole v
69. See, Chapter 1, title 1.1, pp 1-4. Allen, (1950) 1 All ER 476.
70. Brodie v Singleton Shire Council, (2001) 75 ALJR 992, pp 1006, 1007, 1021-1026 (Australia). 75. AIR 1974 Punj 256 : (1974) 76 Pun LR 416: ILR (1976) 1 Punj 279. See also, ILR (1976) 1 Cal 57.
71. Subramanyam lJ District Board, AIR 1941 Mad 733; District Board, Manbhum v Shyamapada, AIR 1955 76. (1901) AC 426: 85 LT 147 (HL). It was also held that a registered Trade Union has a right to sue; see,
Pat 432. National Union of General and Municipal Workers v Gillan, (946) KB 81 : (1945) 2 All ER 593; Willis
72. S Vedantacharya v Highway Department ofSouth Arcot, (J 987) 3 scc 400 : 1987 SCC (Cri) 559. For a v Brooks, (1947) I All ER 191; BMTA v Salvadori, (1949) chapter 556. Section 2(1) of the Trade
case wher~ proper arrangement was not made for lighting a street and the Cantonment Board was held UnIOn and L~bour Relations Act 1974 provides that a Trade Union shall not be treated as a corporate
liable, see, Dr CB Singh v The Cantonment Board, Agra, 1974 AC] 248 (All); See also, Marakkar v State body though It can sue or be sued in its name. After this legislation it has been held that a trade union
of Kerala, AIR 2010 (NOC) 562 (Ker), wherein death occurred due to injuries suffered on account of has no sufficient personality to be a plaintiff in a libel action; Electrical and Plumbing Union v Times
pot holes in the road maintained by Public Works Department. PWD held liable for compensation; 1'!eU;J Papers, (1980) QB 585 : (1980) 3 WLR 98. For an action against an unregistered Union where
Smt Selvi v State of Tamil Nadu, AIR 2010 (NOC) 255 (MAD), wherein a child died by falling into lIabIlIty was Imposed see, Heatons Transport (St. Helens) Ltd v Transport and General Workers Union,
sewage line as a manhole was left open. Metro water supply and sewage board was held responsible and (1973) AC 15 : (1972) 3 WLR 431 (HL).
[Footnote No. 72 Contd.] 77. Bonsor v Musicians Union, (1956) AC 104 (HL).

h
48 Law o/Torts Chapter III Chapter III Persona! 49

its members. The Law on this presents no such is

"H~ (The King) not liable to sued or criminally for a
anomaly for section 13 of the Trade Unions Act, 1926,78 expressly provides that every whICh.the sovereign does personally, the presumes will not be wrong;
registered Trade Union shall be a corporate with all attributes of a legal ~overelgn does b~ command to his servants, cannot a wrong in the <mTF'rp1Ccn UCLatU~.e.
personality. Section 18 of the however, enacts that no suit shall lie against a registered If the command IS it is in law no and the servant is responsible for
Trade Union, its members or officers in respect of any act done in contemplation or t?e un!awful act, the same as if been no command". 84 So the Crown was not
furtherance of a trade dispute to which a member of the Trade Union was a party on the hable 111 tort at common for wrongs committed
ground only that such act induces some other person to break a contract of employment, or employment not even for wrongs expressly
that it is an interference with the trade, business or employment of some other person or department or superior officers could not be sued for torts committed
with the right of some other person to dispose of his capital or labour as he wills. subor~ina.tes unless expressly authorised by them;86 only the actual
sued 111 hIS personal capacity. In practice, action against officer concerned was
3.7. defended by the Treasury Solicitor and the judgment was by
matter of grace. Difficulty was, however, felt the
Liability for a tort committed by an insolvent is not a debt provable in insolvency and The increased activities of the Crown have now made it the of men and
is not discharged by insolvency. But an insolvent may be sued for a ton committed by ~he largest occupier of property. The above system was, proving wholly
him either before or during insolvency, and if a decree is obtained against him, the ll1adequate and the law needed a change which was brought about by the Crown
amount awarded is a debt provable in insolvency.
Proceed.in~s Ac~, 1947. Nothing in the Act authorises
88
in tort against the
As regards torts committed against an insolvent, a distinction is to be drawn between Crown 1111ts p~lvate capacity (s. 40), or affects powers or exercisable by virtue
torts to the person and torts to property. A right of action in respect of a tort resulting in of t~e prerog~tlve of the Cr~wn or conferred upon the Crown by statute (sectionll(l».
injury exclusively to the insolvent's property passes to the Official Assignee or Receiver Subject to ~hls, .th~ Act provides that the Crown shaH be subject to all those m
for the benefit of his creditors. But a right of action in respect of a tort exclusively to the tort to whICh, If It w~re a pe~son of full age and capacity, it would be (1) in
person, reputation or feelings of the insolvent, such as an assault or defamation,79 respect of torts committed by Its servants or agents, provided the act or omission of
seduction of a servant,80 remains with the insolvent, and the Official or the serv~nt or agent would, apart from the Act, have given rise to a cause of action in
Receiver cannot the proceeds so far as they are required for the maintenance of tort aga!~st tha~ servant or agent or against his estate; (2) in respect of any breach of
the insolvent or his family. But where a tort causes injury both to the person and th?se dut~es whIch a pers?n owes to his servants or agents at common law by reason of
property of the insolvent, the right of action will be split and will pass, so as it relates bemg theIr employer; (3) 111 respect of any of the duties at common law
to the property, to the Official Assignee or Receiver, and will remain with the insolvent to the ownership, occupation, possession or control of property. in tort also
8l extends to breach by the Crown of a statutory duty. It is also no defence the Crown
so far as it relates to his person. In such a case either the cause of action is divided
between him and the trustee or they may join together in one action in wh"ich case that the tort ~as committed by its servants in the course of performing or
damages will be assessed under two separate heads. 82 perform functions entrusted to them by any rule of the common law or
law as to indemnity and as between joint shall

3.8. The State and Its Officers

br or against the Crown and the Law Reform (Contributory Negligence)
bmds the ~ro,:,n. Although the Crown Proceedings Act, 1947 preserves the
3.8.1 English Law the Sovereign In person and contains savings in respect of the Crown's
~tatutory po~ers, the effect of the Act in other generally, is to
It is an ancient and fundamental principle of the English Constitution that the 'King lmmUl1Ity or the Crown in tort and to equate
can do no wrong'. This maxim means, first, whatever is exceptionable in the conduct of of tortious liability. The Crown is now
public affairs is not to be imputed to the King, nor is he answerable for it personally to its servants
in the course of their employment if LU.UHl111 render a
his people: for this doctrine would totally destroy the constitutional independence of the
Crown; and, secondly, that the prerogative of the Crown extends not to do any injury.83
84. Tobin v The Queen, (1864) 16 CB (NS) 310, 354.
78. This corresponds to sections 13 and 14 of the Trade Union and Labour Relations Act 1974 and 85. Canterbury (Viscount) v A.H General, (1842) 1 Ph 306; High Commissioner for India & Pakistan v Lall,
sections 15 and 16 of the Employment Act 1982. The provisions of the English Acts are different in (1948) 50 Born loR 649 : AIR 1948 PC ] 21 : 75 IA 225; UOl v F Gian Chand J(f1Sturi La/, (1954) 56
scope. The English law now treats trade unions as natural persons subject to rule of law with certain PloR 68: AIR 1954 Punj 159: IloR (1954) Punj 602.
qualifications. Salmond and Heuston, Law o/Torts, 20th Edn, p 424. 86. Raleigh v Goschen, (1898) 1 chapter 73 : 77 LT 429: Bainabridge v The Postmaster General. (1906) 1 KB
79. Howard v Crowther, (1841) 8 M & W 601. 1.78. Subject. .to. a statutory provlSlon a ""overnment depar'mem crown ' . M"mzster OJ,/,
80. Hodgson v Sidney, (1866) LR 1 Ex. 313. I l' Brtttsh Thompson-Houston Co., (1943) KB 478. '
SUPP'Y Irnmunlry,
81. Beckham v Drake, (1849) 2 HC 579, 632. 87. v (l947)KB204:(1946)2AlIER642.
82. Wilson v United Counties Bank, (1920) AC 102 : 122 LT 76. 88. 10 & 11 Geo., VI, c. 44.
83. Blackstone, Voll, p 246. 89. 8 & 9 Geo., VI, c. 28.

b
50 Law offorts Chapter III
Chapter III Personal CApacity 51
private employer liable. So in Home Office v Dorset Yacht Co,90 the Crown was held liable
for the damage caused by runaway borstal trainees who escaped because of the negligence This provision was continued by the succeeding Government of India Acts,94 and is
of the borstal officers in the exercise of their statutory function to control the trainees. also continued by Article 300(1) of the Constitution ofIndia which reads:
The Court of Justice holds the member states liable for damages for breach The Government of India may sue or be sued by the name of the Union of India and the
community law on the basis of a principle not expressly mentioned but inherent in Gov~rnment of a State may sue or be sued by the name of the State and may, subject to any
the system of the Treary. A State can be held liable irrespective of which organ of the p.rovlslOns which may be made ?y Act of P~liament or of the legislature of such State enacted by
State was responsible for the breach, the legislature, the executive or the judiciary. The :r
mue o.f powers conferred by thiS Consmutlon, sue or be sued in relation to their respective affairs
ID ~e lIke cases. as the Dominion of India and the corresponding Provinces or the corresponding
right to damages is dependent on three conditions. First, the rule of law which was
Indian States might have sued or been sued if this Constitution had not been enacted.
infringed must have intended to confer rights on individuals. Secondly, the breach of
this rule of law must have been sufficiently serious. Finally there must have been a direct It may be mentioned that the Heads of State, ie, the President of India, and the
causal link between breach of the obligation imposed on the State and the damage which Gov?rnor: of S~ates have personal immunity and they are not answerable to any court, as
. db y t h e mJute
was sustame .. d parnes.
. 91 provided 111 Arncle 361, for the exercise and performance of the powers and duties of their
offices.
The English law is likely to develop further because of enforcement of the Human
Rights Act, 1998 from 2nd October, 2000. The Act gives effect to the European The Union of India and the States of the Union are juristic persons and they can sue
Convention on Human Rights. The Act provides that it is unlawful for any public ~d be sued, b~t the extent of their liability by the chain of Constitution Acts beginning
authority92 to act in a way which is incompatible with a convention right and a person with the Act ot 1858 and ending with the Constitution of India is the same as was of the
who considers that his rights have been violated can sue the public authority for Secretary of State for India in Council under section 65 of the Act of 1858 and the
damages. Many of convention rights are also recognised by the common law which words in that section "all persons and bodies politic shall and may have and take the
also provides remedies for their infringement. A claim under the Act will directly arise ~ame sui~s, reme~ies and proceedings, legal and equitable against the Secretary of State
when the right infringed is recognised by the Act as a convention right but is not 111 councll of In~la as they could have done against the said Company" by incorporation

recognised by the common apply to the Umon and the States as they applied to the East India Company. In other
words, the extent of liability of the Union and the States under Article 300(1) of the
3.82 Indian Law Constituti~n is .the same as wa~ t~~ ya~ility of the East India Con;;pany. But this
statement IS subject to the new habllmes imposed by the Constitution or laws made
3.8.2.1 Historical Background under it.
The maxim that the 'King can do no wrong' and the resulting rule of the common law The often quoted authoriry on the construction of section 65 of the 1858 Act is the
that was not answerable the torts committed by its servants' have never decision of the Supreme Court of Calcutta rendered in 1861 in the case of Peninsular
been in India. 93 The Crown assumed the sovereignry British India, which was and Oriental Steam Navigation Co v Secretary ofState for India. 96 In that case a servant of
till then administered by the East India Company, by the Government of India Act, the plai~tiff company was proceeding on a highway in Calcutta driving a carriage drawn
J 858. Section of this Act, which is the parent source of the law relating to the ?y a pair of horses. Due to the negligence of the servants of the Government employed
liability of the Government, provided that: 111 the ~overnment Dockyard at Kidderpore in carrying a piece of iron funnel needed
All persons and bodies politic shall and may have and take the same suits, remedies and for. repaIr of ~ steamer,. an accident happened in which one of the horses driving the
proceedings, legal and equitable against the Secretary of State for India as they could have done pla111tlffs carnage was mjured. The plaintiff company sued the Secretarv of State for
against the said Company. India for damages for the damage caused due to the negligence of the s~rvants of the
Governn:ent .. In holding that for such an accident caused by the negligence of its
90. Home Office tJ Dorset Yacht Co, (1970) AC 1004: (1970) 2 All ER 294 (HL). See further, M tJ Home servants m ~0111g acts not referable to Sovereign powers the East India Company would
Office, (1993) 3 All ER 537 (HL), p 553 : (1994) 1 AC 377 : (1993) 3 WLR 433, where the legal
position before and after the 1947 Act is discus,ed. Substantial portion of the text under the title 3.8.1 ha~e been ha~le and so the Secretary of State for India was liable, Peacock, Cj, who
English Law from 23rd Edn of this book is quoted with approval in State ofAndhra Pradesh v Chatla dehv.ered the JU.dgment of the court, drew a distinction between the acts done by the
Ramkrishna Reddy, AIR 2000 SC 2083, P 2088 : (2000) 5 SCC 712. public servants 111 the delegated exercise of sovereign powers and acts done bv them in
91. Cases C-46 and 48/93 Brasserie du Pecbeur SA l' Germany; R v Secretary of State for Transport Exp. the conduct of other activities and made the following pertinent observation: ~
Factortome Ltd., (1996) 1 ECR 1029; R v Secretary ofState for Transport Exparte Factortome Ltd, (1999)
4 All ER 906, p 916 (HL). I? determining the question whether the East India Company would, under the
92. For meaning of 'public authority' as defined in the Act see Poplar Housing and Regeneration Community Circumstances, have been liable to an action under the general principles applicable to
Association Ltd v Donghue, (2001) 4 All ER 604: (2001) 3 WLR 183 : (2001) 2FLR 284; R (on the
application ofHeather) v. Leonard Cheshire fOundation, (2002) 2 All ER 936 (CAl.
93. UOI v Ashok Kumar, (2010) 3 All LJ 390 : (2010) 79 ALR 430; In State of Bihar v Abdul Majid 1954 94. Government ofIndia Act, ] 915, section 32; Government ofIndia Act, 1935, section 176(1).
SCR 786 : AIR 1954 SC 245, Supreme Court upheld the right of a government servant to sue the 95. See. ntle 3.8.2.3 Pubhc L1W Wrongs, pp 55-67.
government for recovery of arrears diluting the concept of immuniry. 96. Peninsu!ar. and Oriental Steam Navigation Co 11 Secretary ofState for India, (1868-1869) 5 Born HCR App
1 P 1 (Cuflously the case IS not reported in any Calcutta Law Journal.)

t
 III Personal 53
52 La-w III

. 103
l.ts servant.

carried on
97
The tort in case of Peninsular and Oriental Steam Co, was
the servants of the Government in the course a and the case was
with acts done in the exercise of powers. The
not accept the reservation made
if the tort was committed in the exercise of
Courts was that the Government
when
101

97. Peninsular and Oriented Stetlm IV/lUUTClt"", Co v India, (1868-1869) 5 Born HCR

98. ILR (1882) 5 Mad 273.

99. 51 Dom LR 342, P 396-7: AIR 1949 Bom 277. In appeal to the Supreme Coun
J, alone dealt with this and he the view of the Madras and I/"/o,r"",", (J 958-65) AC] 296, .304.
Courts, see, Province Advani, (J 621, P 696 : AIR 1950 SC 222: 1950 v State AIR ]965 1039: (1965) 2 Cr LJ 144: (1965) lSCWR
451. Law Commission of in 1956 also accepted this view. This view also finds 955.
support from two Privy Council decisions viz: v Secretary ofState for India in Council, (1872) 1 Ill. 105. Footnote 96, 51,
Supp. 10 and ofState for India v Moment, (1912) 40 LA 48. 106. Kasturilal Ram tI State AIR 1965 SC 10.39: (1965) 2 Cr 144 : (1965) I SCWR
100. For Act of State, see, title 6.1, Chapter VI. 955.
101. Nobin Chunder Dey v ofState for India, ILR (1875-76) 1 Cal 11 : 24 CWR 309. 107. Kasturilal Ralia Ram Jain v State AIR 1965 se ]039: (1965) 2 Cr LJ 144: (1965) 1 SCWR
102. State ofRajasthan v Vidyawati, 1962 SC 933 : (1963) 1 SC] 307 : (1962) 2 SCA 362 : (1958-65) ACJ 955.
296. Followed in Kanti Devi v State of UP (2012) 1 All LJ 481: (20ll) 75 ACe 816.

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54 Law of Torts Chapter III
Chapter III Personal Capacity 55
respondent during the course of their employment; but the employment in question being of
the category which can claim the special characteristic of sovereign power, the claim cannot be was maintainable. Similarly in Smt Basava Kom Dyamogonda v State of Mysore, 118
sustained.] 08
certain articles seized by the police were produced before a Magistrate who directed the
109
It may also be mentioned that Vidyawati's ease was distinguished as being confined Sub-Inspector to them with him in safe custody to get them verified
to tortious liability not arising from the exercise of sovereign power. a goldsmith. The articles were lost while were kept in the
proceeding taken under section 517 the Code of
The decision of the Supreme Court in Kasturilal's easel J 0 is not satisfactory and has Supreme Court held that when "there is no
been criticised by a leading constitutional authoriry of the country.!ll It proceeds upon a or its officers had taken due care caution to protect the ,,119 the court can
wrong impression that the decision of Peacock, CJ, 112 was uniformly followed by failing order the State to pay the value of the property to the owner.
to take notice that it was dissented to by the Madras and Bombay High COUftS;1l3 it fails As the seizure of property by the police amounts to a clear entrustment of the
to appreciate that when in modern times there is no logical or practical basis for the rule toa Government servant, the idea is that the property should be restored to the UL''''AJtldl

of State immunity which has been abolished even in the country of its origin,114 more ' h . .. 120
owner af ter t e neceSSlty to retam It ceases.'
reasonable view to take in the context of our Constitution was that the State will always
be liable for the torts committed by its servants in the course of employment except 3.8.2.3 Law
when the act complained of amounted to an act of State; and it omits to consider that
even if the statutory power to arrest, search and seize the property recovered may be The cases of Rudul Shah v State ofBihar,121 Sebastin M Hongray v UOJ,122 Bhim
described to pertain to the sphere of sovereign powers, the duty to take care for the v State of] & K,123 and Saheli 124 to the the defence of
protection of the property and the obligation to return the same to the rightful claimant immunity is not available when the State or its officers in the course of
after the necessity to retain them ceases were more in the nature of the duties of a employment infringe a person's fundamental right to life and
statutory or a contractual bailee and did not fall within the sphere of sovereign guaranteed by Article 21 of the Constitution. In the case of
powers.
115 Bihar,125 which arose on a IJClllUUU
prolonged detention of the even after his acquittal, the
Although the decision of the Supreme Court in Kasturilal's case is yet to be overruled, directed the State to pay Rs 30,000 as interim measure without precluding petltloner
subsequent decisions of the court have greatly undermined its authority and attenuated from a suit to recover further The court while overruling the
the sphere of sovereign immunity. As observed by a three judge bench "much of its the petitioner should be left entirely to the of a suit and no
efficacy as a binding precedent has been eroded" 116 should be allowed even as an interim measure observed: "The
petitioner can be to the ordinary remedy of a suit if his claim to
In State of Gujarat v Memon Md,117 certain goods seized under the Sea Customs Act
was factually controversial, in the sense that a civil court mayor may not have
were not properly kept and were disposed of by order of a Magistrate. On a suit for the claim. But where the court has already found, as in the present case, that the ",CI""''','e,
value of the goods against the State, the Supreme Court held that when the seizure was prolonged detention in prison after his acquittal was wholly unjustified
illegal there arose bailment and a statutory obligation to return the goods and the suit can be no doubt that if the petitioner files a suit to recover damages for
detention, a decree for damages would have to be passed in that suit. 125 In the case
108. Kasturilal RLIlia Ramfain v State of UP, AIR 1965 SC 1039: (1965) 2 Cr L] 144: (1965) 1 SC~'R
Sebastin M Hongray,126 where two persons were into by authorities
955.
109. Footnote 102, p 52, supra. 118. Smt Basava Kom DY,1mogonda Patil v State ofMysore, AIR 1977 SC 1749: 1977 Cr LJ 1141 : (1977) 2
110. Footnote 104, p 53, supra. SC] 289
111. Seervai, Cimstitutiona! Law ofIndia, 2nd Edn, pp ll37-39, 1992. 119. Smt Basava Kom Dyamogonda Patil v State ofMysore, AIR 1977 SC 1749, P 1752.
112. Footnote 96, p 5!, supra. 120. Smt Basava Kom DyamogondLl Pati! v State ofMysore, AIR 1977 SC 1749, P 1751. The Gauhati High
113 . Text and footnotes 99 and 100, P 51, supra. Court in State ofAssam v Nizamuddin Ahmad, AIR 1999 Gau 62 followed Kasturila! without adverting
114. State of Rajasthan v Vidyawati, AIR 1962 SC 933: (1963) 1 SC] 307: (1962) 2 SCA 362: (1958-65) to cases in footnotes 117 & 118 above; Ace International v State of'Maharashtra (2013) 5 AIR Born R
AC] 296, P 304; Shyam Sunder v State of Rajasthan, AIR 1974 SC 890 : 1974 AC] 296 : (1974) 1 SCC 919 (in respect of commodities seized nnder the Essential Commodities Act 1955).
690, P 695 ("Today, hardly anyone agrees that the stated ground for exempting the sovereign from 121, Rudul Shah v State afBihar, AIR 1983 se 1086: 1983 Cr LJ 1644: (1983) 4 SCC 141 : (1983) 3 SCR
suing is either logical or practical"). See further, N Nagendra Rao & Co v State ofAndhra Pradesh, AIR 508.
1994 SC 2663 : (1994) 5 JT 572 and Common Cause a Registered Society v UOl, AIR 1999 SC 2979 : 122. Sebastin M Hongray v UOI, (1984) 3 SCC 82 : AIR 1984 SC 1026.
(1999) 6 SCC 667, which contains an elaborate discussion to show that Kasmrilal was not correctly 123. Bhim Singh v State ofJ & l(, (1985) 4 SCC 677 : AIR 1986 SC 494 : 1986 All LJ 653 : 1986 Cr LJ
decided and the doctrine of sovereign immunity has no relevance in the present day context. 192.
115. See, text and footnotes 117-120, pp 54-55, infra. s
124. Saheli a Woman Resources Centre v Commissioner of Police, Delhi, AIR 1990 SC 513 : AIR 1984 SC
116. Common Cause, a Registered Society v UOL supra, p 3002, see to the same effect State ofAndhra Pradesh 1026 : (1990) 1 SCC 422.
v Cha!!a Ramkrishna Reddy, AIR 2000 SC 2083, P 2090 : (2000) 5 SCC 712. 125. Rudul Shah v State ofBihar, AIR 1983 SC 1086: (1983) 4 SCC 141 : 1983 Cr LJ 1644.
117. State ofGujarat v Memon Md, AIR 1967 SC 1885: (1967) 2 SCWR387: (1968) 1 SC] 273. 126. Sebastin M Hongray v UOI, (1984) 3 sec 82 : AIR 1984 SC 1026; See also, Priya v State of Tamil Nadu
(2011) 1 MWN (Cri) 462.

b
 56 Law of Torts Chapter III Chapter III Persona! Capacity 57

III
were not in to a writ of habeas corpus and it was
must met an unnatural death while in Army
Supreme Court the Union of India to pay exemplary costs of rupees one aU'~",'u",contravention
each to the wives of those persons. Although the word 'compensation' is not used in sections 1 and 2 can apply under section 6
UCLUilUII. it is that court compensation (27 to the dependants against to issue appropriate writs and
the Union of India for the action of the army authorities in murdering the two persons. of provisions of the aforesaid sections. The
Bhim Singh's. was a case under Article 32 of the Constitution. The petitioner was committed to seven days by a the
was an MLA was arrested and detained to prevent him from attending the committal was set aside by the Privy Council 136 in appeal on the
assembly session the Court the State of and Kashmir to of the nature of the contempt were not told to the and
pay Rs.50,OOO as In case ofSAHEU 129 the Supreme to observe a fundamental rule of natural justice. The appellant
Court III a Rs 75,000 as damages against the Delhi for redress under section 6 on the ground that he was
to the mother of a of nine who died due to beating due process of law. This application was dismissed the Court,
The court made a to State of Rajasthan v again came up in appeal, to the Privy Council. The Council held 137
Union of Democratic Rights v Police Commissioner, Delhi l3l that section 6 of the Constitution impliedly allowed the Court to
settled now that State is for the tortious acts of compensation as may be the only practicable form of redress in some cases. The
cases of and Bhimsingh were approved bv a Council held that as the appellant's committal was in violation of rules
Court in .MC Mehta v UOI,133 which laid d~wn
natural justice, he was of his liberty without due process of law in contravention
that compensation for section 1 of the Constitution was to claim the State
fundamental rights, can be allowed in exceptional
cases under writ In the argument that a judge cannot be made
the party should seek his
remedy a suit in the civil court. to be done in the exercise or purported exercise
, """"" speaking for the majority observed:
The cla~n for redress under section 6(1) for what has been done by a judge is a claim against
or the case of the State tor what has been done in the exercise of judicial power of the State. This is not
22nd Edn of this book at vicarious it is of the State itself. It is not a liability in tort at all: it is a liability in
law of the judge, which has been created by sections and (2) of the
Constitution. l3B
As to the measure Diplock held:
The claim is not a claim in private law for uamaE:es
which the recoverable are at large and
law for compensation for
any loss of consequent on the l>UIlUJ.CH! and recompense for the

inconvenience and distress suffered by the appellant his incarceration. 139

The was v State
140
Orissa. In that case the on
127. See, Bhim & K, (1985) 4 see 677, 686: AIR 1986 se 494: 1986 All 1.] 653 : 1986
Cr 1.J 192; see also, Smt Tanoubi Leima v State 2015 (NOe 122) 52 ..
128. Bhim v Strite of! sec 677, p 686 : AIR 1986 : 1986 All 1.] 653 : 1986 Cr 136. Tobago, (1977) 1 All ER 411 : 1979 Crim LR 355: 122 Sj
LJ 192.
129. SAHEL! a ~Vom(m's Resources Centre v Commr. Delhi, AIR 1990 se 513: (1990) 1 sec 422. 137.
130. State v M<j AIR 1962 933 : 1962 (2) SCR 989; See also, S Anand v 138.
(2012) 5 Mad LJ 772. 139.
131. v Police Commissioner; Delhi, (1990) 1 SCC 422: AIR 1980 SC 513.
case a was beaten to death Delhi Police and ofRs 75,000 was allowed.
132. SAHEL! a Woman's Resources Centre v Commr. Delhi, 1990 SC 513, P 516. See further, 140.
State v Ravikant S Pati!, (1991) 2 SCC 373 : (1990) 1 sec 422, where in a case of
illegal and a person by a the State was directed to pay Rs
10,000 as cornp"ns;mon. C] & SC DasJ
133. MC Mehta v (1987) 1 sce 395, pp 408, 409: AIR 1987 SC 965,
134. See, text and footnotes 117-133, v UOI
135. v, Attorney-General (No.2), (1978) 2 All ER 670: 1979 AC 385(PC).

b
 Chapter III Personal Capacity 59
58 Law of Torts Chapter III

rights-This court and the High Court being the protectors of the civil liberties of the citizen,
while he was in custody. A letter sent by the petitioner to the Supreme Court was
have not only the power and jurisdiction but also an obligation to grant relief in exercise of its
treated as a petition under Article 32 of Constitution. The Supreme Court jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim
the State of Orissa to pay R'i 1 as compensation to the In directing so whose fundamental rights under Article 32 of the Constitution of India are established to have
Verma, J, observed: been flagrantly infringed by calling upon the State to repair the damage done by its officers to
the fundamental rights of the citizens, notwithstanding the right of the citizen to the remedy by
Award of compensation in a proceeding under Article 32 this court or by the High Court way of a suit or criminal proceedings. The State of course has the right to be indemnified by and
under Article 226 of the Constitution is a remedy available in public law based on strict liability take such action as may be available to it against the wrongdoer in accordance with law through
for contravention of fundamental rights to which the principle of sovereign immunity does not appropriate proceedings. Of course relief in exercise of the power under Article 32 or 226 would be
even though it may be available as a defence in private law in an action based on tort. granted only once it is established that there has been an infringement of fundamental rights of the
This is a distinction between the two remedies. 140 citizen and no other form of appropriate remedy in the facts and circumstances of the case is
possible. 142
Verma]
It is sufficient to say that the decision of this court in Kasturilal upholding the State's plea of Dr. Anand] also observed:
",,'Velel>"11immunity for tortious acts of its servants is confined to the sphere of liability in tort,
There is a great responsibility on the police or prison authorities to ensure that the citizen in
which distinct from the State's liability for contravention of fundamental rights to which the
its custody is not deprived of his right to life. 143
doctrine of sovereign immunity has no application in the constitutional scheme, and is no
defence to the constitutional remedy under Articles 32 and 226 of the Constitution which
In so far as cases concerning custodial deaths are concerned, the Supreme Court has
enables award of compensation for contravention of fundamental rights when the only
mode of enforcement of the fundamental rights can be the award of emphasised the need to grant compensation to the next of kin of the deceased, even if
cOlrnr,en.satI01:l. 141 such deceased is a criminal. The court has recognized that human right is universal and
144
not as per the status of person. The victim compensation schemes formulated by
Concurring with Verma], Dr. Anand] in the same case
States under the CrPC cannot overlook this aspect.
of the public law is not only to civilize power bur also to assure the citizen
under a legal system which aims to protect their interests and preserve their
142. Nilabati Behra v State of Orissa, AIR 1993 SC 1960, pp 1972, 1973: (1993) 2 SCC 746. Nee/bati
141. Nifabati Behra v State o/Orissa, AIR 1993 SC 1960, pp 1967, 1968. See further, Charanjit Kaur v UOJ, Behra and Dr. Anand J.'s observation in this case were relied upon by the court of appeal of New
AIR 1994 SC 1491 : (1994) 2 SCC 1 (L.Rs. of an army officer who died in mysterious circumstances Zealand in the case of Simpson v Attorney General (Baigent's case), 1994 NZLR although the New
giving rise to inference of acts of omissions and commissions of the concerned authorities, allowed Rs 6 Zealand Bill of Rights Act, 1990 does not contain any provision to provide a remedy for infringement
lakhs under Article 32 as compensation as also the special family pension and the children allowance); of the Rights. Baigent's case has not been followed in Australia. The view in Australia is that a
lnder Singh v Sttlte ofPunjab. AiR 1995 SC 312 1949 : (1995) 3 SCALE 4J 8 : (1994) 3 SCC 275 (L.Rs. constitution is not to be construed as conferring a right to get damages additional to those provided by
of each of the seven persons abducted and presumably killed by Punjab Police were awarded Rs 1.5 lakhs the common law: Kruger v The Commonwealth, (1997) 71 AlJR 991 pp 1003 (Brennan C.].), 1047,
under Article 32 as compensation against the State); Punjab and Halyana High Court Bar Association v 1048 (Gaudron, ]), 1061 (Gummow J); see also, Smt Glotilda Syiem v UOI AiR 2015 Megh 12.
State of Punjab, 1996 (4) SCALE 416, pp 420, 421 : (1996) 4 SCC 742: (In this case an advocate K 143. Nilabati Behra v State of Orissa, AiR 1993 SC 1960, P 1972: (1993) 2 SCC 746. These observations
was abducted by the police of Punjab and killed. An innocent person H was falsely implicated by the were quoted and relied upon by the House of Lords (Lord Bengham) in R (on the application ofAmin) v
police as the killer. Following Nilbati Behra's case, the parents of advocate K were awarded 10 lacs as Secretary ofState for the Home Department, (2003) 4 All ER 1264, P 1280 and it was held: "such persons
compensation and the innocent person 2 lacs from the State of Punjab in a public interest petition must be protected against violence or abuse at the hands of state agents. They must be protected against
under Article 32); Peoples Union for Civil Liberties v UOI, AIR 1997 SC 1203 : (1997) 3 SCC 433 (In self-harm [See Reeves t' Commissioner of Police of the Metropolis, (1999) 3 All ER 871. Reasonable care
this case following Nilabati Behra compensation of Rs 1 lac was allowed to dependants of a person who must be taken to safeguard their lives and persons against the risk of avoidable harm (p 1280)". The
was abducted and shot dead in a false encounter by police); Postsangbam Ningoi Thokchan v General House of Lords further held that when death occurs in custody there is also a duty to hold a public
Officer Commanding, AIR 1997 SC 3534 (Following Nilbati Behra mothers of boys who were taken enquiry with opportuniry for relatives of the deceased to participate "to ensure as far as possible that the
into custody by army authorities and who very likely suffered custodial death were each awarded Rs full facts are brought to light that the suspicion of deliberate wrongdoing (if unjustified) is allayed, that
1,25,000.); Punjab and Haryana High Court Bar Association v State ofPunjab, ]T 1997 (10) SC 502 : dangerous practices and procedures are rectified and that those who have lost their relative may atleast
(1996) 4 SCC 742 (Following Nilbati Behra parents of an advocate who was abducted with his wife have the satisfaction of knowing that lessons learned from his death may save the lives of others"
and child and very likely killed by the police were allowed 10 lakhs and a person falsely implicated by (p 2181). See further R (on the application of Middeton) vWest Somerset Coroner, (2004) 2 All ER 465
the police for the crime allowed 2 lakhs as compensation); Milkiat Singh v State of UP, AIR 1999 SC (HL) (Coroners investigation as now read compatible with Human Right Act, 1998). R (on the
1522 : (1999) 9 SCC 351 (Father of a Sikh youth who was taken in custody by police and later application of JL) v Secretary of State for Justice, (2009) 2 All ER 521 (HL) (prisoner in custody
shown to be killed in encounter was allowed Rs 5 lakhs as compensation); Veena Sippy v Narayan attempting suicide suffering serious injury enhanced investigation required by the State); R (on the
Dumbre (2012) 114 (2) Born LR 1103 : (2012) 3 AIR Bom R 30 (Following Nilbati Behra, application ofD) v Secretary of State for Home Department, (2006) 3 All ER 946 (HL). In India also by
petitioner was held entitled to seek compensation for violation of her fundamental rights under Criminal Procedure (Amendment) Act, 2005, section 176 of the CLP.C. has been amended to provide
Article 21 of the Constitution on grounds of her illegal detention by police authorities); Damji
that in the case of death or disappearance of a person, or rape of a woman while in the custody of the
Tingsa Pada v Nagpur Central Jail (2012) 1 AIR Born R 279 (The petitioner was detain beyond the
police, there shall be a mandatory judicial enquiry in which relations of the victim will be allowed to be
period he was liable to be detained. He was held entitled to compensation); Ganeshan v State of Tamil
present and in case of death, examination of the dead body shall be conducted within twenty-four hours
Nadu (2012) 2 CTC 848, (parents of the deceased claimed compensation under Article226 on the
of death.
ground that their only son died in a petrol bomb blast caused by some political party. Claim was
allowed by holding the State was bound to protect his life and liberty). 144. Re-Inhuman Conditions in 1382 Prisons, (2017) 10 SCC 658: (2018) 1 SCC (Cri) 90.

b
60 Law III Personal 61

152. Lonsurner Education

/\/\U,lnfi,., Beheras case was

that
areas, the
serViCe or retirement is a J ';dH",dUUH on behalf ro institute suits in
issued for examination workers of the !vIehta case and does not extend
1 lakh to each companies and industries.
MC lVIehta v Kamalnath, AJR 2000 se 1997; (2000) 7 JT 19; (2000) 6 see 213, the court in a
Article 32 set aside a lease of land by the Himachal
T'l'/<OrlHTlFnr to Kamalnath and {he Govt. to ra.ke over natural
condition
1.45. DK Basu v State AIR 1997 SC 610 : (1997) 1 see416; See also, Court Oil its own also on the
lines as
193. in this
case was by the state m
ua1J"a':;!H':; the
AIR 1997 se610, p 628; See also, Home LJeIJa!'tJrlent v environment Vlere ""thcmtv of the state. After cause was shown of
SAnand v State (2012) 5 772. Rs 10 lakhs "vvere bench. This case is as
147. AIR 1993 se p 1973; (1993) 2 see746; sec also, Vnited Air it the three
v VOl, AIR 1999 se 2979
"Fravel Services v VOl 8 see
141. discussed at pp. 55,
148. See,
J49. State v Challa Ramakrishna AIR 2000 SC 2083 pp 2090, 2091 : (2000) 5
Lata Wadhwa v State AIR 200] se 3218: (2001) 8 see 197 compensation was allowed
under Article 32 and in !vIS Grewal v Deepchand Sood, AIR
sec 712. This case was followed Court ill that when on a
Iron and Steel
a food V"","CI"UiXU and had to remain for 7
2001 SC 3660 : 8sce 151 in a petition Article 226 compensation against a Public
School was allowed under the Fatal Accidents Act. But in both these cases objections regarding the
liable with the food ""'POCLUr:
11).
no from the eadier constitution bench decisions
150. Centre v VOl, AIR 1995 SC 922: (1995) 3 sec 42. which the of Article 21 against the state and its instrumentalities only.
151. Consumer Education and Research Centre v UOl, AIR 1995 se 922, p 940. 153. Naiini Kant Sinha v. AIR 1993 SC 1358 : 1993 (4) see
748.

b
62 Law of Torts Chapter III
Chapter III Personal Capacity 63

promotion. In a claim by Sinha for difference in salary and compensation for mental instrumentalities, but the State cannot legally claim that since one of its ministers or officers had
anguish and suffering the Supreme Court negatived the claim for mental anguish and violated the fundamental right of a citizen or had acted it should be by
suffering holding that it was not a legal claim allowable in law,154 but allowed the claim awarding exemplary damages against that officer or minister. 161
for difference in salary with interest "having regard to the facts and justice of the case The court fully accepted the
and without this decision constituting a precedent".l55 case. Indeed the court after quoting the passage ClI.ILld'UCIU
In two public interest petitions under Article 32 of the Constitution two ex-central Dr. Anand J. in that case observed that it was "a classic of
ministers who had arbitrarily allotted petrol pumps and shops/stalls from discretionary law'''.163 The case of Nilabati Behera 3...l1d the Privy Council case of Maharaj v I H U l f n n
quota by mala fide exercise of their power were ordered to pay damages to the General, which it approvingly clearly lays down the violation of a
156
Government to the tune of 50 lacs in one case and 60 lacs in the other case. The two right gives rise to a strict of the State in public law which is not a
ministers were found guilry of the tort of misfeasance in public office and liable to pay vicarious liability in tort. 32 or 226 for of a
l57 right are allowed
exemplary damages. The court relied upon Nilabati Behera's case for the proposition
that damages can be awarded under Article 32 of the Constitution. With reference to violation of the citizen's
l58 indemnifY itself by recovering loss from the
these cases the following submission was made in the 23rd edition of this book :
proceedings against him. The court was, in in the
The fundamental rights in Part III of the Constitution are against the State as defined in
Article 12 and damages under Article 32 in enforcing fundamental rights can be awarded against disposing of the review petition that award of damages to the Government in a peitltlon
the State. But the State has no fundamental right which can be enforced by award of damages to under Article 32 will not be for the reason that it would amount to
the State under Article 32. Further, Article 32 cannot be used for enforcing a liability in tort directing the Government to pay damages to 164 it be a case of custodial
which is entirely different from a liability arising from violation of a fundamental right and this death or wrongfi.11 detention or medical of a ..,"UllVH
l59
aspect was highlighted in Nilabati Behera's case. It is submitted that in these two cases Article 32 is violation of the fundamental to life under jI.,.rticle 21 by State not
Nilabati Behera's case was wrongly applied and damages in these cases could not have been the tort committed its officers. The court also that exemplary damages cannot be
awarded in Article 32 petitions."
allowed in all cases.
A review petition decided by a bench of three judges in one of the two aforementioned
The review petition in the other case also came later before another judges
cases, which related to allotment of petrol pumps, justifies the above submission to a
bench. o~ the Supreme Court. They quashed the of damages on the ground that
large extent. The court agreed that the of allotment were wholly arbitrary but it
set aside the award of damages holding that the tort of misfeasance in public office was the mInIster was old and ailing and it would be gross hardship to continue that part of
The~, how~ver, doubted the correctness of the
166
not established and that the State could not be awarded compensation in a petition the ord.er. of the three judges
under Article 32 for violation of fundamental right of a citizen by its officers. The bench III the earlier review case and observed that its correctness can be appropriately
question relating to misfeasance of public office arising in this case has been ~iscussed considered by a constitution bench in some other case. The legal position thus is that the
elsewhere. 160 On the question of State's right to be compensated under Article 32 the decision of the three judges bench in the case of common cause l67 still remains the
declared under Article 141.
court held:
The State itself cannot claim the right of being compensated in damages against its officers on . . disti~ction between a tort committed by the officers for which the State may be
the ground that they had contravened or violated the fundamental right of a citizen the whole vlca~lOus!y liable and t?e prima~ and strict liability of State for the public law wrong
thing has to be examined in the context of Article 32 of the Constitution under which relief to a of vlOlatlon of a fundamental fIght has sometimes not been maintained and cases of
person or citizen can be granted only against the Union of India or the State or its public law wrongs redressed under the public law remedies by applications under Article
32 or 226 have at times been, it is submitted inaccurately, referred to as cases of tort. In
154. Nalini Kant Sinha v State ofBihar, AlR 1993 SC 1358, P 1360. Chairman Railway Board v Mrs Chandrima Das l68 a Bangladeshi woman was gang
155. Nalini Kant Sinha v State ofBihar, AlR 1993 SC 1358, P 1359. There may, however, be circumstances raped by employees of the Railway, the court rightly held that it was a case of
such as delay or large scale revision of seniority to disentitle back wages of the higher post and the court
may grant only notional promotion, seniority and pay fixation of the higher post on that basis; see,
Palurn Ramkrishnaiah v UOJ, AlR 1990 SC 166, P 175 : (1989) 2 SCC 541; Telecommunication
161. Common Cause a Registered Society v UOL AlR 1999 SC 2979, P 3020 : (1999) 6 SCC 667.
Engineering Service Association v UOJ, 1994 Supp (2) SCC 22 : JT 1994 (7) SC 58, pp 60, 61. 162. See, text and footnote 140, p 57.
156. A Common Cause a Registered Society v UOJ, AlR 1996 SC 3538 : 1996 (7) SCALE 156, (1996) 8
163. Common Cause a Registered Society v UOL AlR 1999 SC 2979, P 2997: (1999) 6 SCC 667.
SCALE 127: AlR 1997 SC 1886; Shivasagar Tiwari v UOJ, (1996) 7 SCALE 643; (1996) 8 SCALE 164. Common Cause a Registered Society v UOL AIR 1999 SC 2979, P 3020.
338 : AlR 1997 SC 1483. The facts of these cases are discussed under the head Misfeasance in public 165. See, p 225,post.
office. 166. Sheila Kaur v Shiv Sagar Tiwari, AIR 2002 SC 2868 : (2002) 10 SCC 667.
157. Nilabati Behra v State ofOrissa, AlR 1993 SC 1960, pp. 1966, 1969: (1993) 2 SCC 746.
167. Common cause a registered Society v UOJ, AIR 1999 SC 2979 : (1999) 6 SCC 667; See also, Court on its
158. 23rd Edn, pp 49,50. own Motion v State ofHimachal Pradesh, AIR 2010 (NOC) 866 (H.P.).
159. See cases in footnote 156. 168. Chairman Railway Board v Mrs Chandrima Das, AlR 2000 SC 988: (2000) 2 SCC 465; Smt Meinam
160. See pp 383, 384,post. Ongbi Bina Devi v State ofManipur AlR 2015(NOC 644) 241.
64 Law o/Torts Chapter III
Chapter III Personal Capacity 65
violation of the of the Bangladeshi woman
applies also to non-citizens the Court was 32 or 226 it cannot be held that any
Rs 10 lakhs against the in a public interest ~t:lllllUll damages in public law. The law on this
not covered by an authority of the
"state was under a constitutional to pay COlmpen:;atlon
seen as to how far the new situation
course of discussion some cases
have allowed in public law
awarding com~ensation 32 been described as cases "in
171 reasonable to award damages in
realm of tort"] 0 and there is also some rei·en:n<;e to vicarious liabiliry of State. As
principle to cover all situations
submitted earlier, enforced under 32 or 226 of a
the law incrementally by taking analogy
right is the and strict of the State and not its vicarious
private of torts. This is the method
liabiliry for the tort committed by its VIJ"'-'C1~. negligence in tort law which are not covered of
In Jay Laxmi Salt Wor,ks (P) v The State of Gujarat, 173 damage to the fundamental rights under Articles 21 32
caused by over flow of water because of a reclamation bundh erected doubtful ]76 may open a Pandora's
reclamation of vast area of from salt ish water sea. It was iJ>'-'.LWJUO seeking damages. Rights to life
planning construction of the was in a negligent manner which covered by common law and statute
in damage to the But the suit was held to be barred by the Court under '"'"'HU.'V"" of these The courts must also
Article 36 of the Limitation 1908. In the blame for every must be laid at the fin,(WOrPh
every or against the person or properry De(;OllileS
malfeasance, wrong the State on the it was not sufficiently
a public law or pro perry of the victim. It may be "(r,""",,h,
The court did not parameters as to when the State can be made
law dury. In a L"O'LHJl~Ul~iJl"U from the ton of 1!C;J:;H~,t:U'-C;,
welfare of the people, But can it be said that or uq"-Hl~Ul'-L by a
every act by the Government would be violation of a l77
officers. It is OUIUllHU.C;U
CUJ.I;;;J"'-" in an action
State to pay UdjlHd!".t:~
Although the 53
to 55, which
21, the ohc"rWlT,nn
be public law wrong H;;U.IC~~dUH:
Supreme Court, h~·mp"",,· or
held that "the public law
to when the IU.11U.dl11ClJlldl it,

226 of the
there was
The
under Article
176. See, footnote 162, p 63.
177. See text and footnotes 181-185,
169. Chairman Board 1J Mrs. Chtmdrima Das,AIR 2000 SC 988, 999 38).
178. Chairman Grid l.lJ/'Pot-ati,m Ltd v Shrimati Sukamani Das, AIR 1999 SC 3412 : (1999) 7 SCC
170. Chairman Railway Board v Mrs. Chandrima Das, AIR 2000 SC 988, P 993, 994 9 & 10).
298: AX Morcha, AIR 1999 SC 2193 2195: (1999) 4 SCC 476, Tamil
171. Chairman Railway Board v Mrs. C'handrima DasnAIR 2000 SC 988, P 1000
In. See text and footnotes 138, 57.140, p 57,145, p 60,163, p 63. Board v Sumathi, AIR 2000 SC 1603 : (2000) 4 543; N. v APCPDCL
173. Jay Laxmi Salt Works (P) v The State (1994) 4 SCC 1 : JT 1994 (3) SC 492 : 1994 ACJ 149. Satish Kumar v BSES Yamuna Power Ltd Decided on
902. Followed in a case of negligence of care 07.03.2018 (SB) V Kameswar Rao J Delhi High Court.
towards persons . of a 179. Rabindra Nath Ghosal v University a/Calcutta, AIR 2002 SC 3560 : (2002) 7 SCC 478.
person by drowning: 44 : 180. T Bimbla 1J Corporation, 2015 ACJ 2585.
(2004) 9 SCALE 46. 181. R Gandhi v UOI, AIR 205. For another case of communal riot where the State was held liable
174. Hindustan Papers LOI'tJO,'attl?n v Ananta Bhattacharjee, (2004) 6 SCC 213, p. 216, to compensate the viaims, see, . Inder Puri General Store v UOI, AIR 1992 ] & K 11 (Article 21 applied).
175. See, GP Singh, Interpretation, 12th Edn, p 267. But, see, NathulalJam t,State AIR J993 149 (A person not any injury cannot
maintain a interest petition riot victims).

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 Chapter III Personal Capacity 67
66 Law of Torts Chapter III

Following the case of Rudul Shah, the Himachal Pradesh High Court 187 allowed a
Court in that case allowed Rs 33.39 lakhs as compensation against the State to 39 Si~ petition againSt the State for award of compensation under Article 226 of the
families as it had failed to protect the propertie~ ?f these ~ami~ies in.,the rio~s le.t loose In Constitution by dependants of two persons who died during surgical operation in a
Coimbatore in wake of the former Prime MInIster, Indira Gandhi s assasSInation on 31 Government hospital because of negligence of the hospital staff in that they were
October 1984. In view of the High deprivation of property resulted in .deprivati~~ of administered nitrous oxide in place of oxygen. As the hospital staff were employees of
means of livelihood violating Articles 21 and 300A of the Constitution. A similar petition the State, the High Court, it is submitted rightly treated it to be a case of deprivation of
filed in the Delhi Court!S2 was also allowed on similar reasoning. A petition tIled in the life violating the fundamental right under Article 21 of the Constitution and not purely
Supreme Court for benefits to other Sikh riot victims in the entire country a case of negligence. The Orissa High Court in Dharnidhar Panda v State of Orissa 188
was remanded by the Supreme Court to the Courts a f Delh1,· 183 R'
aJasthan, 0 nssa,
.
held the State vicariously liable in a writ petition when as a result of collapse of a portion
P11njab and tlimachal Patlla, Madhya Pradesh, Allahabad and Bombay of a school building two children died. The responsibility for maintenance of school
for any on merits of the Kerala building lay on the Village Education Committee which acted as agent of the State
VU"UV'H~' under Article 226 whose Government. In Y Krishnappa v The State, 189 a learned Single Judge of the Madras High
police to render to Court allowed Rs 20,000 as compensation under Article 21 for delay in investigation
Article 19(1)(g) of Constitution. In all these without quashing the investigation for mental agony and anguish of the accused. And in
cases the of or was not directly by the State or its officers but by C Chinnathambi v State of Tamil Nadu,190 another learned judge of Madras High
third parties whose acrs were because of the negligence or inaction of t~e officers of Court allowed Rs 1,50,000/- under Article 226 of the Constitution to the dependants of
the State. As a criticism of these cases it may be said that when the pames. we.re not each of the two children who died as a result of collapse of a water tank in a government
acting as agents of or in collusion with the State or its officers, there was no depnvatlon by school. In this case also Article 21 was applied. The Madras High Court upheld
the State or its officers any fundamental right to life or right to property and the State payment of compensation in a case where a student drowned in the swimming pool
185
could be made liable, if at all, only in private law for the tort of negligence unless it could maintained by the State which had no security guard. 191 The Delhi High Court granted
be that it was reasonably foreseeable in the circumstances that a riot like situation m~y compensation to a widow, whose husband died as a result of bomb blast that took place
emerge and so the St~te was under a p:imary. ~ for a~eq~~te arran~em.ent~ of Its at a cinema hall. State was held liable to compensate the family of the deceased. The
law enforcement machinery for protection ofllte property of Its c1t1~ens.whlCh It fl.lled t? Orissa High Court granted compensation on account of the death of a young girl who
perform. It was, rightly held that KasturilaZ's case has no applIcation when there IS was raped and murdered within the school premises, by a school teacher. 192
infringement of Article 21 of the Constitution.
Guidance in this respect can be taken from Strasbourg j~rispru~en~e a~ developed in 3.8.2.4 Limitations ofSovereign hmnunity
interpreting right to life in Article 2 of the Eu~op~an Conv~ntlon :vhlCh IS bnefly ~xpressed~ The sovereign functions within which the immunity of the State survives in an
'Everyone's right to life shall be protected by l.aw . The ~rtlde as Interp,:eted also lnvolv~. a. ordinary tort action are also vague. But there can be no doubt in respect of certain
positive obligation of the State to take preventIve operational me~ures z:;hen. the autho~ttzes matters. Trading and commercial activities of the State, for exampie running of
know or ought to have known at the time the existen~e ofa real a~ lmmed~~te r~sk to e lifo of tk railways,193 are outside the scope of sovereign functions. This in fact was tlle decision in
an identified individual or individuals from the crimmal acts ofa thzrd party . It IS S~~Cl~nt for s
the Peninsular and Oriental Steam Navigation Company case,194 which was approved in
the party complaining of the violation of this obligation "to show th~t the a~thor~tles di~ not Kasturilal's case.
195
Again welfare activities famine relief work l96 or routine
do all that could reasonably expected of them to avoid a real and lmmediate nsk to .hfe of
Governmental activity like maintenance of vehicles for use of officials, 197 or any service
which they had or ought to have had knowledge. This is a question to be answered III the
.
light of all the Clfcumstances case" .186
187. Smt Kalawati v State ofHimachal Pradesh, AIR 1989 HP 5.
188. Dharnidhar Panda v State of Orissa, AIR 2005 Ol'i 36 : 2006 ACJ 487.
189. Y Krislmappa v The State, (1993) Cr. LJ 3646 (Mad).
182. Bhajan Kaur v Delhi Administration, 1996 AIHC 5644 (~elhi).
190. C Chinnathambi l' State of Tamil Nadu, AIR 2001 Mad 35.
183. SS Ahluwalia !I UOL AIR 2001 SC 1309 : (2001) 4 SCC 452.
184. P Gangadharan Pillai v State ofKerala, AIR 1996 Ker 71. 191. G.Ravindran v State of Tamil Nadu (WP (MD) No. 10045/2009) Decided 15.04.2015 (SB)
YMVelurnani J.
185 See text and footnote 177, P 66.
186: Osman v UK, (1998) 5 BHRC 293 (paras 115, 116) referred Re Officer L, (2007) 4 All ER 965 para 19 192. Biranchi Narayan Sahu v State ofOrissa, (2011) 105 AIC 680
pp 975, 976 (HL); Van Colle v Chief Constable of Hertfordshire Police, (2008) ~ All ER 977.paras 29 to 193. Chairman Railway Board v Chandrima Das, AlR 2000 SC 988, P 1000 : (2000) 2 SCC 465.
32 (HL); Re E (a child), (2009) 1 All ER 487 paras 45 to 48 (~L): (T~ls ~ase a~~o dJscu.ss~s the 194. Peninsu/.,lr and Oriental Steam Navigation Co v Secretary afState for India, 5 Born HCR App 1.
sufficiency of the measures adopted by the authorities to prevent a not hke SItuation. 1 ne case. IS m the 195. Kasturilal Ralia Ram Jain v State of UP, AIR 1965 SC 1039 : (1965) 2 CrL] 144 : (1965) 1 SCWR 955.
context of Article 3 of the European Convention which provides that no one shall be .subJected to 196. Shyam Sunder v State ofRajasthan, AIR 1974 SC 890 : (1974) 1 SCC 690 : 1974 ACJ 296.
torture or to inhuman or degrading treatment or punishment :",hich .corresponds to Article 7 of the 197. State ofRajasthan v Vidyawati, AIR 1962 SC 933: (1963) SCJ 307: (1962) 2 SCA 362. See, text and
International Covenant on Civil and Political Rights enforced m IndIa by the ProtectIOn of Human footnote 102, P 52.
Rights Act, 1993).

b
68 Law HI
III Persona! 69

787, 796: (1994)

Namin Saboo 1) 539, para 81 : ,AIR 2011 SC 3495;
(NOC 508) 142,
MahCirashtra, AIR 1996 SC 2377 : (1996) 328,
2000 SC 1888 : (2000) 5 SCC 182 (Failure of sterilisation
Services v SCihai, AIR 2000 lVIad 305; Dr
ifJU'J1a1w:m, 2001 Ker 398,
i{Ci)'CiSJI7an, AIR 1974 SC 890 : (1974) 1 SCC 690, (696) : 1974 ACJ.296,
SCibhCi, AIR 1960 SC 610: 1960 SCJ 679 : (1960) 2 SCA 243,
J:;m'pLo'~ee5, AIR 1960 SC 675: (1960) SCA 596: (1960) SCR 942,
203, CoombeI' 9 AC 61.
204, Ad hoc Committee, Indian Insurance GU'''I''"''''_ £:!sso,:zmum
366: AIR 1976 MP 164: 1976 LJ 394 (Medica! relief work undertaken [Footnote No, 206 Comd,l
healrh centre is not a traditional function), see furrher, Lo;mnzan'aai'U
further, the cases where was : UOlu SauitCi Sharma, 1979
ranICCiJi'nt Kurtdu, 1984 ACJ 660 (ar 6(3): 1984 Cal 405 : (1985) 1 TAC
Leverltd., AIR 1972 All : 1972 All LJ 501; N RfJO & Co v The StfJte J&K 6: 1979 ACJ 1 : 1979 TAC 54; ~1'lati v UOI, AIR 1967 Delhi 98: (1968) 69 Pun LR
Pradesh, AIR 1994 SC 2663 : ]T (1994) 5 SC 572, 598: (1994) 6 SCC 205; Lm7Sf}"'VaCor (D) 125: 1968 ACJ 119; Narte/ram v UOI, AIR 1978 MP 209: 1978 ACJ 215: 1978 TAC
iar:anr,Iatt i'vlaruti Kondhare, AIR 1996 2898; Produce 289; Kaur v AIR 1978 Ail 417: 1978 All LJ 654: 1978 All WC 559; UOI v
2000 SC 3125: (2000) 8 SCC 61 of the country, Smt. jatto, AIR 1962 Plmjab 315 : 64 Pun LR 318 : ILR (1962) 1 Punj 708; UOI V "",'ra'ML
and retain territory), AIR] 969 Born 13 : ILR (1968) Born 998 : 70 Bom LR 212; UOI v Pr{1~ad Misra, AIR 1957
205, 1915 993:27723:ILR39Mad352;and t'1at MP 159 : 1957 Jab LJ 765 : ILR (1957) MP 43; Roopl,d v, UOI, AIR 1972 & K 22; UO! v Abdul
And \Xi'R 502 : AIR 1961 AP 283 : 1960 Andh LT 1053, it was , _ Rehman, AIR 1981] & K 60: 1982 LJ 17: 1981 ACJ 348: 1981 Kash LJ 279,
function and so the Government 'was not liable for of 207, UO! v Thakur, (1984) AC] 401 (p : (1984) 86 Pun LR 143,
or a culvert. These cases 208, UOIl! Thakur, (1984) AC] 401, P 404: (1984) 86 Pun LR 14,3,
trc.n ",,,,no' sovereign function, 209, (1984) ACJ 559 (SC) : (1984) 2 TAC 308: (1985) 1 ACC 76, Followed in UshCi Agarwal l! UOI, 1985
AC] 834: AIR 1985 (P&H) 279 : 1985 (2) 88 Pun LR 197,
206, 559: (1984) 2 TAC 308 : (1985) 1 ACC 96 : AIR 1986 SC 1199_ 210, Groves l! Commonwealth, (1982) 41 ALR 193,
and : (1964) 86 Pun LR 143, The Full Bench decision or 21 L Kasturilal Ra!ia Ramjairt v State a/UP, AIR 1965 SC 1039: (1965) 2 Cr LJ 144: (1965) 1 SCWR 955
Singh v The UOI, (1974) ACJ 105 : ILR (1973) : (1965) 1 SCR 375,
1984 ACJ 401 must also be taken to be overruled. See 212, For example, see, U01 v Abdul Rehman, AIR 1981 J & K 60 : 1982 Srinagar LJ 17 : (1981) AC] 348 :
[Footnote No, 206 Contd,l 1981 Kash LJ 279; Commandant 0/74 Bn BSP v PankfJjini Kundu, (1984) ACJ 660 (Calcutta) : AIR
1984 Cal 405 : (1985) J TAC 126,

b
 Chapter III Personal Capacity 71
70 Law of Torts Chapter III
It must also be noticed that the State cannot succeed in Its immunity
property of the plaintiff, it was held that the State was not liable.213 Similarly, when merely showing that the tort was committed by its servants in course of discharge
some police personnel assaulted members of a mob for dispersing it when there was an statutory functions. "The statutoty functions must referable to the traditional concept
apprehension of an attack on the office of the SDO by the mob, the State was held to be of Government activity in which the exercise of the sovereign power was involved,,221 to
not liable. 214 However, in State of Madhya Pradesh v Shantibai, two women who were enable the State to claim immunity. This was clearly laid down by the Supreme Court in
standing on the roof of their house were injured when police fired in the air to control a 222
Kasturilal's case. This legal position has now been strongly by the
mob indulging in violence after lathi-charge and teargas had failed to be effective, the Court in N Nagendra Rao & Co v The State of Andhra Pradesh?23 In this case the
High Court allowed compensation and negatived the defence of sovereign immuni~. appellant carried a business in fertilisers and food grains. srock of fertilisers and
The women were innocent victims and they were hit by the bullets fired by the polIce foodgrains was seized from the appellant's In taken section
though "unwittingly".215 But even in cases where use of police lathi-charge or firing is 6A of the Essential Commodities Act, 1955, no serious violation of any Control order
justified, the State, generally, does not intend to deny compensation to the victims or to was and only nominal of the stock seized was and the rest was
the dependents in case of death. It is on this basis that the Supreme Court allowed ordered to be released. The appellant, when he went to take the delivery found the
payment ofRs 20,000 in case of death and Rs 5,000 for personal injury.216 stock had been spoilt both in quantity and quality. The appellant, therefore, instead of
It was stated in the Peninsular and Oriental Steam Navigation Company's case that taking delivery of the stock sued for compensation against the State. The trial court
sovereign powers are those powers "which cannot be lawfully exercised excee by a found negligence on the part of the officers and decreed the suit in The High
Court did not interfere with the finding of negligence but suit relying
sovereign or by a private individual delegated by a sovereign to exercise them." 17 This
upon Kasturilal. In the Supreme Court, the appeal was heard two judges who could
test is applied in some cases for deciding the question whether the tort was committed in
not overrule Kasturilal (which is a decision of a Constitutional Bench) but they pointed
the protected field of sovereign immunity, but the test is not satisfactory and cannot, at
out in an elaborate discussion that it was not correctly decided and that [he doctrine of
any rate, be applied to all cases. In India, no private individual can carry on undertakings
sovereign immunity has no relevance in the present day context. Distinguishing
like the Railways but it does not follow that these undertakings are carried on by the
Kasturilal the Court, overruling the High Court, observed that maimenance of law and
Government in the exercise of traditional sovereign powers and the State shall not be
order may be an inalienable sovereign function of the State in the traditional sense but
liable for torts committed by servants of these undertakings in the course of
power of regulating and controlling essential commodities as by the Essential
employment. These undertakings are in the nature of commercial and public utility
Commodities Act and the orders made thereunder did not pertain to that area and the
undertakings 218 and as they do not fall within the traditional sovereign functions they
State cannot claim immunity if its officers are negligent in exercise of those powers.224
are outside the protected area. Further, no private individual has the power to raise and
maintain an army or a police force, but as already seen,219 the law is not that all torts Even in those cases where the State is protected from vicarious liability on the doctrine
committed by an Army Officer or a Police Officer in the course of employment fall of sovereign immunity, the public servant committing the tort is not 225 It is
within the area of State immunity. There has to be a close nexus between the act also no defence for the public servant to say that the wrong was committed in the course
complained of and one of the traditional sovereign functions of the State such as · h argmg
o f d lSC . some statutolY L mnction or· · ·
carryll1g out the ord ers 0 f 226

carrying on of war, maintenance of order or repression of crime before it can be said that Superior Officers are not liable on the basis of vicarious responsibility for is no
the State will not be liable for torts committed in the course of employment by a relationship of master and servant between them their subordinate; but a superior
22o
member of the Defence services or police force.
221. State of UP v Hindustan Lever Ltd., JoJR 1972 All 486, (p 491) : 1972 All LJ 501 (A deposit made on
behalf the plaintiffs in a Government sub-treasury was not credited to their account as it was embezzled
by the treasurer and the accountant of the sub-treasury. In a suit by the plaintiffs it was held that even
213. State of Madhya Pradesh v Chirojilal, AIR 1981 MP 65: 1981 Jab LJ 351; The reasoning is that the
assuming that the treasurer and the accountant committed the wrong in the course of discharge of
function of the State to regulate processions is delegated to the police by section 30 of the Police Act
statutory functions (under rules made by virtue of s. 151, Government of India Act, 1935), the State
and the function to maintain Law and Order, including quelling of riot, is delegated ro the authorities
was liable as running a sub-treasury was in the nature of a banking business and did not pertain to the
specified by section 144, CrPC. These functions cannot be performed by private individuals. They are traditional sovereign activity.)
the powers exercisable by the State or its delegates only and by their very nature these functions are to 222. Kasturilal Raiia Ram Jain v State of up, AIR 1965 SC 1039, P 1946: (1965) 2 Cr LJ 144 : (1965) 1
be regarded as 'Sovereign functions' of the State. SCWR 955 : "The question to ask is: was the tortious act committed by the public servant in discharge
214. State of Orissa v Padmalochan, JoJR 1975 Ori. 41 : ILR (1974) Cut 103. of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign
215. State of Madhya Pradesh v Shantibai, JoJR 2005 MP 66; See also, Smt. Harimaya Dayal v UOI, AIR power of the State to such public servant."; Followed in Ganesh Prasad v Lucknow Development
2010 (NOC) 561 (GAU);Jeetindem Singh v State ofHP AIR 2012 HP 61 : (2012) 113 AlC 332. Authority, (2012) 90 ALR (SUM 9) 5 : (201l) 89 ALR (SUM 64) 31).
216. AIR 1987 SC 355, p 356: (1987) 1 SCC 265. 223. N Nagendra Rao & Co v The State of Andhra Pradesh, AIR 1994 SC 2663 : JT 1994 (5) SC 572 :
217. Penimular and Oriental Steam NmJigation Co v Secretary of State for India, (1868-69) 5 Born HCR, (1994) 6 SCC 205.
Appendix 1, P 1 ·It P 14. 224. N Nagendra Rao & Co v The State ofAndhra Pradesh, JT 1994 (5) SC 572, p 600.
21B. Govt ofIndia 1 Aiv,l, Am. 1970 Mysore 13 : 1970 ACJ 221 : (1969) 1 Mys LJ 2·44, 225. State of UP v Tulsi Ram, JoJR 1971 All 162 : 1970 All Cri R 429: 1970 All WR (HC) 160.
219. Text and footnotes 206-213, pp 68-70, supra. 226. Venkappa v.Devamma, (1956) Mad 1381.
220. Text and footnotes 206-213, pp 68-70, supra.

b
72 Law o/Torts Chapter III
Chapter III Personal Capacity 73
officer is if the wrong committed by the is PY1nrf'<'iv
Unlike Great Britain, most countries did not accept the doctrine of absolute
by him.227 although no action lies for doing that which is authorised by
immunity and they tended to distinguish between acts jure imperii and acts jure
legislature, if it be done without negligence, bur an action lies for doing that which 237
legislature has if it be done negligently.228 In cases where a statutory discretion gestionis. The absolute immunity doctrine was producing great injustice in the
is conferred, the person entrusted with the discretion is not liable if the discretion is changed conditions when sovereign States are more and more indulging in commercial
exercised with due care and there is an error of judgment; but there would be and trading activities. The English courts, therefore, felt the necessity of taking more
liability if he restricted view of sovereign immunity. The Privy Council in Philippine Admiral (owners)
unreasonably to carry out his duty to consider the matIer or
reached a conclusion so unteasonable as again to show failure to do his duty."z29 v Wallen Shipping (Hong Kong) Ltd,238 abandoned absolute immunity theory and
applied the restrictive theory in respect of actions in rem observing that the trend of
3.9. Foreign Sovereigns opinion in the world since the war has been increasingly against the application of the
doctrine of sovereign immunity to ordinary trading transactions. The Court of Appea1239
English courts have no jurisdiction over an independent foreign sovereign personally under the leadership of Lord Dening applied the restrictive theory also to actions in
and the prf~erties of a foreign sovereig~ State unless they ~ubmit to the juris~iction of personam holding that there is no ground for granting immunity if the dispute concerns
the Court. 3 For this purpose all sovereigns are equal. The mdependent sovereign of the commercial transactions of a foreign State. Finally the House of in The Congreso
smallest State stands on the same footing as the monarch of the greatest. No Court can 40
Del Partidi approved the restrictive theory requiring the court to analyse the nature of
entertain an action against a foreign sovereign anything done, or omitted to be done, the obligation and breach in question to decide whether it pertained to private law or
by him in his capacity as . 0 f wh'lCh h_e .
0 f t he nation IS '
the 231
was of "Governmental" character. Parliament has also intervened by enacting the State
Mere residence in a foreign territory does not lead to a waiver of immunity or HUUH~Hl') Act, 1978 which applies to causes of action arising after November 21, 1978.
232
submission to local Couns. Even if such a sovereign is a British subject, and has The immunity under the Act covers proceedings which relate to anything done in the
exercised his as such subject, he cannot be made to account for acts of State done exercise of "sovereign authority". Acts done under statutory authority are thus not
by him in his own territory, in virtue of his authority as a sovereign. 233 As a consequence 241
protected. Speaking generally trading transactions are not protected under the Act but
of the absolute independence of eveq sovereign authority and of the international what is more important for our purposes is that not apply to: (a) an
comity which induces every sovereign State to respect the independence of evelY other action or omission in UK causing death or personal injury; and (b) obligations arising
sovereign State, each and one declines to exercise by means of its courts, any of its out of the ownership, possession or use of property in UK But the Act does not apply to
territorial person of any sovereign or ambassador of any other State, 'proceedings relating to anything done or in relation to the armed forces of a state
or over of State which is destined to its public use, or over the while present in the United Kingdom'. immunity relating to armed forces covered
such sovereign, ambassador, or property, be within by this exceftion is decided in accordance with the common law relating to State
its territory, and therefore, but for common agreement, subject to its jurisdiction?34 immunity.24 A member of the US Air Force sustained injury through treatment
This soverei~n immunity may not be available upon termination of sovereign sf'atus, eg, medical personnel at a US base hospital in England he brought a suit for ~a',Ha:"'~0
2
abdication. 5 Where the de jure sovereign of a foreign country (Emperor of Abyssinia) against the United States' government in England. The suit was dismissed on
brought an action to recover a sum of money from a company and the company proved ground of State immunity that the activities of the United States which gave rise to the
that a claim in respect of the money had been made by another foreign Sovereign State suit fell the area of Jure imperii?43 Where the applies, it covers an
(King of Italy), it was held that the court had no jurisdiction to decide the rights of the official of the State in respect of acts performed by him in an official capacity.244
plaintiff, having regard to the claim by other foreign State?36 State immunity is unaffected by the European Convention the Protection of Human
Rights and Fundamental Freedoms which is enforced in the Kingdom
227. Mersey Docks Trustees v Gibbs, (1866) LR 1 HL 93, p 124.
Human Rights Act, 1998 from 2 October, 2000. 245 But the Court of Appeal in another
228. Geddis v Proprietors ofBann Reserlloir, (1873) 3 AC 430 (HL), pp 455-456 (Lord Blackburn) referred to in
Home Office v Dorset Yacht Co, (1970) 2 All ER 294 : (1970) AC 1004 (HL). Lucknow Development
Authority 1/MKGupta, AlR 1994 SC 787: (1994) 1 SCC 243. 237. Cheshire, Pri1/ate International Law, 6th Edn, p 89, footnote 2.
229. Home Office 1/ Dorset Yacht Co, (1970) 2 All ER 294 : (1970) AC 1004 (HL) (Lord Reid). 238. Philippine Admiral (owners) 1/ Wallen Shipping (Hong Kong) Ltd, (1976) 1 All ER 78 (PC).
230. Mighell1/ Sultan ofJohore, (1894) 1 QB 149; DuffDe1/elopment Co 1/ Kel£mtan Government, (1924) AC 239. Trendtex Trading Corporation Ltd 1/ Central Bank ofNigeria, (1977) I All ER 881, pp 891, 892 : 1977
797; The Christina, (1938) AC 485; The Arantzazu Mendi. (1939) AC 256. QB 529 : (1977) 2 WLR 356 (CA).
231. De Habar 11 The Queen of Portugal, (1851) 17 QB 171; Wadsworth 1/ Queen of Spain, 20 LJQB 488; 240. The Congreso Del Partido, (1983) AC 244 (HL); Holland 1/ Lampen Wolfi, (2000) 3 All ER 833, P 844
Gladstone 1/ Ottoman Bank, (1863) 1 H & M 505. (HL).
232. Mighel1/ Sultan ofJohore, (1894) I QB 149. 241. Kuwait Airways Corp v Iraqi Airways Co., (1995) 3 All ER 694: (1955) 1 Wl.R 1147 (HL).
233. DukeofBrunswic!?1' The (1848) 2 HLC 1. 242. Holland v Lampen Wolfi, (2000) 3 All ER 833, P 844 : (2000) 1 WLR 1573 (HL).
The Parlement 880) 243. Littrell 1/ United States ofAmerica, (1994) 4 All ER 203 : (1995) 1 WLR 82: (1993) 137 5J L.B. 278
25). Munden 1/ Bruniilid" (1847) 10 QB 656. (CA).
236. Haile Selassie 1/ Cable and Wireless Ltd., (1938) I chapter 545. 244. Holland v Lampen Wolfi, (2000) 3 All ER 833, P 843.
245. Holland 1/ Lampen Wolfi, (2000) 3 All ER 833, pp 847, 848.

b
74 Law of Torts Chapter III Chapter III Personal Capacity 75

in a case where a torture was out in a

certified in writing by a secretalY to the Government. The provisions of section 86 of the
from proceedinf3s for compensation for
. a fir.' Code of Civil Procedure apply in this respect as they apply in relation to a foreign State
acts to the State not to Its llcla1s. _46 and permission to sue can be granted on grounds on which a foreign State can be
252
If an international by an agreement of Sovereign States is g~v~n a allowed to be sued.
corporate status by the the United Kingdom, the organisation becomes a dlstlllcr
legal entity fr.?m its cannot be m~de liable . for th~ debts of tl~e 3.11. Minor
organisation. 24 ! So if the organisation is by law also gIven legallmm~~lty, the result IS The normal age of majority in India is 18 years, but if a guardian is appointed before
that neither the organisation nor the States can be sued. Agreements or that age by a court or property is taken under superintendence by a court of wards, the
treaties entered into by Sovereign States, unless incorporated in law . statut~4~annot be 253
age of majority is 21 years. The criminal law confers immunity on minors of tender
III courts either States or by a thIrd party. years; a child below 7 years cannot at all be held liable for any offence,254 and a child
In India, as in section 86 of the Code of Civil Procedure, a foreign State between the ages of 7 and 12 is not liable unless he had attained sufficient maturity to
cannot be the consent of the Central Government certified in writing judge the nature and consequence of his conduct on the occasion. 255 As regards
by a Secretary to Government. A tenant of immovable property can, however, sue contracts, a minor is incompetent to contract and an agreement entered into with him is
without such consem the State from whom he holds or claims to hold the void?56 The law of torts makes no special provision for minors.
property. Consent to sue cannot. given u.nl~ss it appears to. the Central Gove~~ment Pre-natal injuries
that the foreign State: (a) has instltuted a SUIt ill the court a~amst the pe~sOl: ~esmng to
sue it, or (b) by itself or another, trades the 10~allim1t.s . the Jun:dl~tlOn o~ the A minor can sue for all torts committed against him like any other person except that
court, or (c) is in possession of immovable property situate wlthm those limIts and IS to he has to bring his suit through a next friend. The preponderance of authority now is
be with reference to such property or for money c.h;~~ed thereon, or (d) has that a minor can also sue for pre-natal injuries?57 The difficulty, that at the time the
expressly or the accorded to It. The . injury is inflicted, there is no legal person, for the foetus is not a legal person is met
section 86 also covers which are State owned and are like either by holding that the cause of action arises on the birth of the child who is
.1 d' . .. 250 deformed or by fictionally attributing personality to the foetus as is done in cases where
government departments even though they carry on commerCIa or tra l~g actlv~t1es.
Having regard to the modern trend of taking a restricted view of State ImmUnIty, a posthumous child is held entitled to claim under the Fatal Accidents Act,258
W orkm en 's C ompensatlOn. A ct259 or un d er a W'11 760 .
Court has ruled the consent to sue should generally be 1 - 111 accor d ance Wit
. h t h e maxim
.
251 261
conditions mentioned in the section are 0~C'"U~~, Nasciturus pro jam nato habetur. On the recommendation of the Law Commission the
British Parliament passed the Congenital Disabilities (Civil Liability) Act, 1976, section
1 of which provides that a person responsible for an occurrence affecting the parent of a
3.10. Ambassadors child, causing the child to be born disabled, will be liable to the child if he would have
The law on the and immunities of diplomatic representatives in the United 262
been liable in tort to the parent affected. There is no liability for a pre-conceptional
Kingdom is contained in the Diplomatic Privileges ~ct, 196~, whic~ gives t?e force of occurrence if the parents accepted the particular risk. There are also other exceptions and
law to the relevant provisions of the Vienna Convention on Dlpl?matlc Rel~tl?ns, 1961. qualifications in the Act. It further appears that a deformed child cannot claim damages
In India, any Ambassador or envoy of a foreign State, any HIgh CommIsSIOner of a
Commonwealth country and any such member of their staff, as the Central Government
252. See, text and footnotes 250 and 251, supra.
may specify, cannot be sued except with the consent of the Central Government 253. The Indian Majority Act, 1875.
254. Section 82, Indian Penal Code 1860.
255. Section 83, Indian Penal Code 1860.
246. Jones v Minister of Interior (Kingdom of Saudi Arabia), (2005) 2 WLR 808. For comments on this case
256. Section 11, Indian Contract Act 1872; Mohon Bibee v DharmotMs Ghose, (1903) 1 ILR 30 Cal 539 (PC).
see (2005) 121 Law Quarterly Review, pp 353-359.
257. Montreal Tramways v Leveille, (1933) 4 DLR 377; Pinchin v Santam Ins., 1963 (2) SAP 254;
247. Maclaine Watson & Co Ltd v Department o/Trade r:!rlndustry, (1989) 3 All ER 523 (HL). .
Watt v Rama, (1972) VR 353; Duval v Seguin, (1973) 40 DLR 3d 666 (Ont. CAl; B v Islington Health
248. Mac!aine Watson & Co Ltd v Department of Trade & Industry, (1989) 3 All ER 523 (HL).Rega:dI?g
Authority, (1991) 2 WLR 501 (QBD); De Martell v Merton and Sutton Health Authority, (1992) 3 All
United Nations, see AG Nissan, (1969) I All ER 629 (HL), P 647. For reparanon of the ll1Junes ER 820: (1991) 1 All ER 825 (QBD).
suffered in the service of United Nations, see, (1949) rCJR 174. 258. The George and Richard, (1871) LR 3 Ad & Ecc 466.
249. Section 86, Code of Civil Procedure, 1908. , . 259. Williams v Ocean Coal, (1907) 2 KB 422 (CA).
250. Veb Deautfracht Seereederei Rostock (DSP Lines) a Department of the German Democratic Republic v New
260. Villar v Gilbey, (1907) AC 139. See further, section 99(i) of the Indian Succession Act, 1925.
Centraljute Mills Co. Ltd., AIR 1994 SC 516 : (1994) 1 SCC 282. See furt~er, Ara~ RepubliC ofEgypt v
261. Salmond, Jurisprudence, 12th Edn, p 301; Fleming, Torts, 6th edition, pp. 153, 154.
Gamal-Eldin, (1996) 2 All ER 237 (Activity of organising medIcal rehef for Its natIOnals IS not
262. Even before the Act, many cases were decided on the footing that such a liability is recognised by the
commercial activity and is within state immunity). law. For example see Distillers Co (Biochemicals) Ltd v Thompson, (1971) 1 All ER 694 : (1971) 2 WLR
251. Harbhan Singh Dhalla v UOI, AIR 1987 SC 9 : 1986 JT 765 : (1986) 4 SCC 678 : (1986) 4 Supreme
441 (HL); McKay v Essex Area Health Authority, (1982) 2 All ER 771, P 779 : (1982) 2 WLR 890 :
258; Shanti PrasadAgarwalla v UOI, AIR 1991 SC 814: 1991 Supp (2) SCC 296. 1982 QB 1166 (CA).

t
76 Law III 77

either

not whether actions of the defendant were such

in the defendant's would have
to and reasonable 5
extra care the child would have realised as much.271
child in these circumstances would not be
could not be said that was any caused to the or to the parents
the doctor which caused the In the absence of any Indian
Act in U'-'-'CHU.l<

into account.-A minor no in a

a tortious act. But his age has to be taken into account when
malice on his part is for
3 years
the same age several feet and caused extensive but as
could not to him because of his
liable. In Me Hale v 269. (1968) ACJ 273, P 296. See American Restatement of the of TortS 283 at
made of hard wood p 294 of the report.
270. Mullin Richards, (1998) 1 illl ER 920 (CA).
271. Muffin v Richards, (1998) 1 All ER 920 (CA), p 924.
272. Delhi v Kumari Lalita, (1983) ACT 253 (p 256) : AIR 1982 Del 558: (1986) 59
where an infant Com Cas 162. See further, Amritsar Co v Se;avan Kumar, (1969) ACJ 82 : 1969
defendant is charged Hel':lJ~ellLe, his age is a circumstance to be taken into account LJ 53, Matias Costa 11 ]aeinto, (1976) ACJ 92 (Goa) : Am 1976 Goa 1 : 1976
and the standard by which conduct is to be measured is not that to be of a TAC 262; Yach"1ie v Oliver Co. Ltd., (1949) AC 386; v Throne, (1966) WLR 1387 (CA) :
reasonable adult but that to be expected of a child of the same age, 1967 ACJ ]83; Jones v Lawrence, (1969) 3 All ER 267 : 1970 ACJ 358. See further XIX, title
19.7.2.
273. v Gowardhandas, (1955) ME 355.
263. (1982) 2 All ER77l: (1982) 2WLR890: 1982QB 1166 (CA). 274. Hod'man v Grisse!, 129; v Davis, (1835) 1 NC 692.
264. v Kensington and Chelsea and Westminster Area Health Authority, (1984) 3 All ER 1044 : 1985 QB 275. Bacon.
1012 (CA). See further pp 247-249, post.
276, Mills 11 Graham, (1804) 1 B & P (NR) 140.
265. AIR 1992 SC 248, P 311 : (1991) 4 SCC 584. According to a report in MP Chronicle of June 30,
277. Re, Lush's Trusts, (1869) LR4 59!.
1995,30 children were later found suffering from congenital heart diseases because of roxic effect of the
gas on their mothers. 278. Bristow I} Eastman, (1794) Peake NPC 291, (223).
266. S Said-Ud-Din v Court of Welfare Commissioner, (1996) 3 SCALE (SP) 28 : (1997) 11 SCC 460. 279. S'adik Ali Khan v]aikishore, AIR 1928 PC 152 (There is no estoppel a minor).
267. Tiiiander v. Gosselin, (1967) ACJ 306 (High Court of Ontario, Canada). 280. Leslie (R) Ltd v Sheill, (1914) 3 KE 607 : III 1,T 306; Dhannumal v Ram Chunder Ghose, (1890) 24
268. Me Hale v Watson, (1966) 115 CLR 199, (1968) ACJ 273 (High Court, Australia). Cal 26S.
78 Law of Torts Chapter III Chapter III Personal Capacity 79
281
representation provided it is identifiable and still in his possession or control. In the In cases where no specific intent or malice is an ingredient of the tort, the defendant
words 0 f Lord Sumner; "Restltut!on
. . stops were h repayment begms. . ,,282
would be liable if he knew the nature of his act, although, because of unsoundness of
Although an infant is liable for a tort, yet an action grounded on contract cannot be mind he was unable to know that what he was doing was wrong or contrary to law. This
..
would b e che pOSItlOn . . c
ill actlOns lOf trespass,
293 .
converSlOn, d ef'amatlOn
. 294 an d oth er
changed into an action of tort?83 Thus, an infant was held not liable for overridin~ a
mare which he had hired,284 or for unskillfully driving a motor-car and damaging it. 85 torts where what is necessary to prove is only that the defendant intended to do the
But where an infant hired a mare and was expressly told that she was not fit for leaping, physical act which constitutes the tort. So a person was held liable in tort for violent
but she was put to a fence, and in taking it, fell upon a stake and was so injured that she assault and battery when he knew the nature of his act though because of mental
died, he was held liable, for it was just as much a tort as if he had taken the mare out of disorder he did not know that it was wrong?95 But in cases where specific intent or
the plaintiffs stable without leave?86 If it were in the power of a plaintiff to co~v.ert t~at malice is necessary to constitute the tort, eg, malicious prosecution, deceit or libel on a
which arises out of a contract into a tort, there would be an end of that protection whICh privileged occasion, the defendant will escape liability if his defective mental condition
negatives the existence of the required specific intent or malice, as the case may be,
the law affords to infants?87
though he is not so incapacitated as not to know the nature of his act. 296 In dealing with
Liability of parent.-A father or a guardian is not responsible for the torts of the cases relating to the tort of negligence, difficulty is created because the legal standard is
minor. 288 But the circumstances of a case may be such as to constitute the child the that of a man of ordinary prudence which eliminates the personal equation and
servant for the time being of the father, in which case the father may be liable as a master idiosyncrasies of the defendant. The defendant, therefore, may escape liability by
for the acts, neglect and default of his child, as when he sends out his son on some showing that his act was not a voluntary act, eg, by proving that the act was entirely
business with his cart and horse, and the son causes injury by negligence in driving.289 A beyond his control,297 but not merely by showing that he was unable to take proper
father may also be liable for his own personal negligence in allowing his child an precautions because his mental faculties were affected by disease of the mind. Thus a
opportunity of committing a wrong, as when he supplies his son with an air-gun or driver of a motor vehicle cannot escape liability by showing that he felt that his vehicle
allows him to remain in possession of it after complaints of mischief caused by the use of was under a remote control from head office,298 or by showing that he suddenly suffered
290
the gun, and the boy afterwards accidentally wounds a person. a malfunction of the mind which so clouded his consciousness that from that moment
he was, through no fault of his own, unable properly to control the vehicle or to
3.12. Lunatic appreciate that he was no longer fit to drive. 299

Insanity is a good defence in the Criminal Law when at the time of commission of the
crime, the accused by reason of unsoundness of mind was incapable of knowing the
291
nature of his act or that what he was doing was either wrong or contrary to law. Such
a wide exemption is not admissible in the law of torts the object of which is
compensation and not punishment. It may be generally stated that when the insanity is
of such a grave nature that the defendant was unable to know the nature of his a~t, ~e
would not be liable in tort for the act in such a case will not be a voluntary act whIch IS
c .. 292
necessary lOf constltutIng a tort.

281. Leslie (R) Ltd v Sheill, (1914) 3 KB 607 : 111 LT 306; See also, Ballett v Mingay, (1943) KB 281 : 168
LT 34: (1943) I All ER 143. Where an infant was successfully sued in detinue for the non-return of a
microphone and amplifier which he had hired from the plaintiff and improperly parted with it to a
friend.
282. Leslie (R) Ltd v Sheil!, (1914) 3 KB 607, p. 618.
283. See, cases in footnote 193, supra.
284. Jennings v Rundall, (1799) 8 TR 335 : 4 R.R. 680. 293. Morris v Marsden, (1952) 1 All ER 925 : (1952) 1 TLR 941; Phillips v Soloway, (1957) 6 DLR (2d)
285. Motor House Company Limited v Charlie Ba Ket, (1928) 6 Ran 763. 570; Beals v Hayword, (1960) NZLR 131; Squittieri v De Santis, (1976) 75 DLR (3d) 629.
286. Burnard v Haggis, (1863) 14 CBNS 45: 8 LT 320. 294. Emmens v Pottle, (1885) 16 QBD 354, P 356.
287. Per Lord Kenyon in Jennings v Rundall, (1799) 8 TR 335,336: 4 R.R. 680. 295. Morris v Marsden, (1952) 1 All ER 925: (1952) 1 TLR 941.
288. Vellapandiv v Manicka Thai, (1970) ACJ 65 (Mad). 296. Salmond and Heuston, Torts, 20th Edn, (1992), p 430,
289. Gibson v OKeeney, (1928) NI 66. 297. Roberts v Ramsbottom, (1980) 1 All ER 7, P 14 : (1980) 1 WLR 823 : (1980) R.T.R. 261; Waugh v
290. Bebee v Sales, (1916) 32 TLR 413; Newton v Edgerley, (1959) 3 All ER 337, (1959) 1 WLR 1031. James KAllen Ltd, (1964) 2 Lloyd's Rep. 1, P 2.
Contrast Gorely v Codd, (1967) J WLR 19 : (1966) 3 All ER 891. 298. Buckley and Toranto Transportation Commission v Smith Transport Ltd., (1946) 4 DLR 721 (Ontario
291. Section 84, Indian Penal Code, 1860; M'Naghten's Case (1843-60) All ER (Rep) 229. CA).
292. Tindale v Tindale, (1950) 4 DLR 263. See, Chapter 2, Title 2.2. 299. Roberts v Ramsbottam, (1980) 1 All ER 7: (1980) 1 WLR 823: 1980 R.T.R. 261.
 committed abroad] have
the
t:APHC00,lY I1,ltIllleu conditions:-.

actionable as a tort it

The wrong must have also actionable

2
committed. But a issue between the of
the country in respect to that issue,
occurrence and the 3

The court has no jurisdiction to entertain an action to recover Ua,lll;c!g(:~

to land situated abroad. 4

No action will lie in England for an act committed in a foreign country if it was
as per the law counny at the time of its commission, 5 or was or
was subsequently legitimatized virtue of ex post foeto in such country.6 If a
eg, a law prescribing period of limitation, the
for enforcing the it would not be a
if the foreign law it would be a 7

1. A torr may be held to be committed abroad if the wrongful act is committed abroad even though the
damage flowing from it is suffered in England. The entire events constituting the tort must be seen and the
situs of the tort must be flxed by the question where in substance the cause of action arose. Disti!lers
Co Ltd v (971) 1 }\Jl ER 694: (1971) 2 WLR 441 (PC); Dillfnond v Bililk of
London 6- /viontreal Ltd, 1 fiJI ER 56 j : (1979) 2 WLR 228 : 1979 QB 333; ClStree v E 6~ R
6- Sons Ltd (l980) 2 Ail ER 589 : (l980) 1 WLR 1248.
2. Boys, (1971) AC 356 (1969) 2 All ER 1085 : (1969) 3 \VLR 322 (HL); Metal! rmd
v Donaldson Inc., (1990) 1 QB 391 (CA) , P 446 .
.3. Dicey and Marris, llrh Edn, 1365, in Johnson l' Churchill
International Ltd ER 14, 17; Red insurance Co Ltd 1) 3 All ER
749 : (1995) ! AC 190 : (1994) :3 926 (PC). See also, Four 1)
Brownlie [2017J UKSC 80: [2017] ALL ER (D) 102,
4. British de (189.3) AC 602; Hotels Ltd, (1979) AC
508; (1978) 1
5.
7he tv! Nfox;htitJl, (1876) 1
7.
1 (29). See ai~o, BI.tlCk (lazvson hlternf.lil"ona! Ltd v
AC 591 (HL); (1975) 1 All ER 810 (HL).

81

b
82 Law of Torts Chapter IV Chapter IV Foreign Torts 83

The act complained of should be actionable both by the law of England and by the down a Norwegian ve~sel. By the Belgian law the Britisher was liable, but by the English
s
law of country where it was committed. But it is no defence to an action for a tort law the fact that the pIlot was on board, and that the collision was due to his negligence,
committed in a foreign country that by the law of that country no action lies till the exempted her. It was held that, under those circumstances no action lay against her in
9
defendant has been dealt with criminally, for that is a mere matter of procedure. England. 15
Quantificarion of damages for actionable heads of claim is a matter of procedure or S:izu:e ofgoods under Muscat law.-British goods on board a British ship within the
1o
remedy and is governed by the law of the forum where the action is brought. terntonal waters of Muscat were seized by an officer of the British Navy, under the
Action for assault against ex-Governor.-An action was brought for assault and false authority of a proclamation issued by the Sultan of Muscat. It was held that the seizure
imprisonment against the ex-Governor of Jamaica, the trespass complained of having having been shown to be lawful by the law of Muscat no action could be maintained in
been committed during a rebellion in that island. The defendant relied on -an Act of England by the owner of the goods against the naval officer. 16
Indemnity which the Jamaican Legislature had passed. It was held that legislation,
though ex post facto, cured the wrongfulness of his acts and prevented the plaintiffs from
• 11
recovenng.
An action was brought against the Governor of Minorca, named Mostyn, who
apparently was of opinion that he was entitled to play the part of an absolute and
irresponsible despot on his small State. One of his subjects, however, one Fabrigas did
not coincide with him in this view, and he rendered himself so obnoxious that the
Governor, after keeping him imprisoned for a week, banished him to Spain. For this
arbitralY treatment Fabrigas brought an action at Westminster. Mostyn objected that, as
the alleged trespass and false imprisonment had taken place in Minorca, the action could
not be brought in England. But it was held that, as the cause of action was of
a transitory and not of a local nature, it be tried, and £3,000 was awarded as
12
damages to Fabrigas.
The plaintiff was injured in a motor accident in Malta caused by the negligence of the
defendant. Both the plaintiff and the defendant were British nationals, who were
domiciled and normally resident in England. The damages recoverable by Maltese law
would not have included compensation for pain, suffering and loss of amenit~es of life as
under English law, but only for his expenses and money loss. It was held that the
damages should be assessed in accordance with the English law.13
Tort Committed in Saudi Arabia and Suit in Hong Kong.-The tort was actionable in
both the countries but the insurers could not sue, according to Hong Kong law ie, lex
fori, the tort-feasor before they had paid the injured ie, the insured but they could do so,
according to lex loci delicti ie , the law of Saudi Arabia and they were allowed to exclude
the lexfori in favour of the lex loci delicti. 14
Collision-Liability under Belgian but not under English law.-By the negligence of a
pilot, compulsorily taken on board, the Halley, a British steamer in Belgian waters, ran

8. Metall, (1990) I QB 391, P 446: (1989) 3 WLR 563: (1989) 3 All ER 14 (CA).
9. Scott v Seymour, (Lord), (1862) 1 H&C219.
10. Harding v Wealands, (2006) 4 ALL ER 1 (HL).
11. Phillips v £yre, (1870) LR 6 QB 1.
12. Mostyn v Fabrigas, (1774) 1 Cowp 161: (1968) 2 QB 1.
13. Boys v Chaplin, (1968) 1 All ER 283. This decision was upheld in appeal; (1%9) 2 All ER 1085 (HL). see
also, Cox v Versicherung AG (formerly known as Victoria) [2014] UKSC 22.
14. Red Sea Insurance Co Ltd v Bouygues SA, (1994) 3 All ER 749: (1995) 1 AC 190: (1994) 3 WLR 926 15. The "Halley" (1868) LR2 PC 193.
(PC). 16. Carr v Fracis Times & Co, (1902) AC 176: 50 WR 257.
5. Law

AC 649.
86 Law of Torts Chapter V Chapter V Justification of Torts 87

Jurisprudence no member of the Executive can interfere with the liberty or property of a territory owes temporary allegiance to the Crown. In Johnstone v Pedlar,12 an
British subject except on the condition that he can support the legality of his action Irishman who became a naturalised American citizen came to Ireland and took
3
before a court of justice. And the same principle applies to a friendly alien resident in in rebellion and was deponed. He again came to Ireland and was arrested for
British territory.4 But when the person or the property of a person who is not a British drilling, and money found on his person was confiscated. In an action for
subject and who is not residing in British territory is injured by an act "done by any detention of the money or in the alternative for damages for conversion, the
representative of Her Majesty's authority, civil or military, and which is either previously defendant raised the plea of act of State which was negatived by the House of Lords
sanctioned or subsequently ratified by Her Majesty", the person injured has no remedy on the ground that at the time of confiscation of the money, the plaintiff, though an
s
for such an act is an act of State. An act of State is outside the ordinary law; it is American citizen, owed local allegiance to the Crown because of his residence in
essentially an exercise of sovereign power as a matter of policy or political expediency. Its l3
Ireland which conferred on him local rights. Some obiter dicta in this case favours
sanction is not that of law, but that of sovereign power, and municipal courts must view that act of State is no defence unless the act is done outside the British
accept it without question. Ratification by the sovereign power of the act of one of its territory. But it has been held that deportation from or detention of an alien enemy
officers is equivalent to a prior command and may render such act an act of State. 6 In in England are acts of State. 14
the often quoted case of Buron v Denman/ the defendant, a captain in the Royal Navy,
Although an act of State cannot be challenged, or interfered with by municipal courts,
released the slaves and set fire to the slave barracoons of the plaintiff, a Spaniard, on the
its intention and effect may sometimes be to modifY and create rights as between the
West coast of Africa, outside British dominions. The defendant originally had no
Government and individuals who are about to become subjects of the Government, and
authority but his act was ratified by the Crown. It was held that the plaintiff had no
in such cases the rights arising therefrom may be capable of being adjudicated upon by
remedy against the defendant. However, as between the sovereign and his subjects there .. I courts. IS
8 mUlllClpa
can be no such thing as an act of State. In Eshugbay v Officer Administering the
Government of Nigeria,9 the Governor of Lagos, sanctioned the deportation of the 5.1.2 Indian Law
appellant from the office of "Etaka" and deported him. On a challenge as to the validity
of the order by the appellant, one of the contentions raised was that it was an act of The English law relating to Act of State was followed in India in the pre Independence
State. In negating this contention, the Privy Council (Lord Atkin) observed: era and has been followed even after the Constitution came into force as it became a part
16
The phrase (Act of State) is capable of being misunderstood. As applied to an act of the sovereign
of the common law of India continued by the Constitution as existing law. As held by
power directed against another sovereign power or the subjects of another sovereign power not owing the Supreme Court "an act of State is not available against a citizen"; it is "a sovereign
temporary allegiance, in pursuance of sovereign rights of waging war, or maintaining peace on the act which is neither grounded on law nor does it pretend to be so"; it is "a catastrophic
high seas or abroad, it may give rise to no legal remedy. But as applied to the acts of the executive, change constituting a new departure"; "in civil commotion, or even in war or peace, the
directed to subjects within the territorial jurisdiction, it has no special meaning, and can give no State cannot act catastrophically outside the ordinary law and there is legal remedy for
immunity from the jurisdiction of the court to inquire into the legality of the act.
its wrongful acts against its own subjects or even a friendly alien within the State".17 Acts
The position is the same even if the wrongful act is done against a subject outside of the executive Government in the name of the President in the normal course of
British territorylO or against a friendly alien within British territoryll for a subject administration (eg allotment of petrol outlets from discretionary quota of a minister) are
wherever he may be owed allegiance to the Crown and a friendly alien within British not acts of State and are open to judicial scrutiny and their authority, validity and
correctness can be examined by courts. 18
3. Eshugbay Eleko v Officer Administering, the Government of Nigeria, 1931 AC 662 (PC), AIR 1931 PC
248: 1931 All LJ 466.
Acts of State are directed against another sovereign State or its sovereign personally or
4. Johnstone v Pedlar, (1921) 2 AC 262: 125 LT 809: 37 TLR 870 (HL); see also, Rahmatullah v Ministry its subjects and, being based on policy considerations and not on law administered by
ofDefince [2017] UKSC 1 :[2017] AC 649. the municipal courts, they are not justiciable. In Secretary of State for India in Council v
5. Stephen, Hist01Y o/Criminal Law, vol II, pp 61, 62.
6. Salaman v Secretmy of State for India, [1906] 1 KB 613, 639; Rao v Advani, (1949) 51 Born LR 342 :
AIR 1949 Born 277. See, a dissertation on this subject in the (1906) 8 Bombay Law Reporter 00urnal), 12. Johnstone 1) Pedlar, (1921) 2 AC 262: 125 LT 809 : 37 TLR 870 (HL).
p 66 and also in the Allahabad Law Journal, vols I and II. 13. Johnstone v Pedlar, (1921) 2 AC 262: 125 LT 809 (HL).
See, Buron v Denman, (1848) 2 Ex 167. See, Mir ZulefAli v Veshvadabai Saheb, (1872) 9 BHC 314, 14. Netz 1) Ede, [1946] Ch. 224; R v Bottrik, (1947) KB 47, p 5762 T.L.R. 570.
where a sequestration by the officers of the Government of the private property of the Angria of Kolaba 15. Salaman 1/ Secretary ofState for India, (1906) 1 KB 613.
was made contrary to the orders of the Court of Directors but was subsequently ratified. See, Ross v 16. State ofGujarat 1) Vora Fiddali, AIR 1964 SC 1043, (p 1061) : (1964) 2 SCA 563 overruling Virendra
Secretmy ofState, ILR (1914) 37 Mad 55: AIR 1915 Mad 434: 19 IA 253 as to essentials of ratification. Singh v State of UP, AIR 1954 SC 447: 1955 SCR 415 : 1954 SCA 686 which had shown preference
7. Buron v Denman, (1848) 2 Ex. 167. for the American view.
8. Walker v Baird, (1892) AC 491, P 494: 67 LT 513 (HL);Johnstone v Pedlar, (1921) 2AC 262 (HL), p 295. 17. HH Maharajadhiraja Madhav Rao Jivaji Rao Scindia v UOl, AIR 1971 SC 530, (p 552) : (1971) 1 SC]
9. Eshugbay v Officer Administering the Government of Nigeria, 1931 AC 662 (PC) : AIR 1931 PC 248 : 295: (1971) 2 SCA 257 (Hidayatullah C]) also see, p 575; State of Saurashtra v Memon Haji Ismail,
1931 All LJ 466. AIR 1959 SC 1383 (1387) : (1960) 1 SCR 537: (1960) SC] 394; BK Mohapatra v State of Orissa, AIR
10. Attorney General ZI Nissan, (l970)AC 179, P 213: (1969) 2 WLR926 (HL) (Lord Reid). 1988 SC 24, pp 28, 29 : 1987 Supp SCC 553.
11. Johnstone v Pedlar, (1921) 2 AC 262: 125 LT 809 (HL). 18. Common Cause, a Registered Society 1) UOL AIR 1999 SC 2979, P 3003: (1999) 6 sec 667.

t
 88 Law v v 89

estate
seizure of

store
a.""A.'CHULC~
were entitled to recover
stores seized, Hl'.U~'-lH<UlY

the Dominion of and

gave rise to many cases in post
in these territories as
with
defence of act of State
an order of
act of State and its

action
their

25. Forester I! (1872) ] 1A I (PC),

26. Dalmia Dadri Cement Co Ltd v CIT, AlR 1958 SC 8! 6 : 1958 SC] ! 041
ismail, AlR 1959 SC 1383: (1960) 1 SCR 537: 1960 SC]
1961 SC 1361 : (1962) 1 SC] 179 : (1962) 1 SCA 226, t' jmnaritZr

Mutawalli in AIR 1962 SC 445: (1962) 2 sc] 70: (J 962) 2 SCA 605, Promod Chandra
Orissa, AIR] 962 SC 1288 : (1963) 1 sq 1 : 1962 (1) SCR 405, State
AlR 1964 SC 1043 : (1964) 2 SCA 563, Perna Chibbar 1966 SC 442:
(1966) 1 SCA 918, Shantilaf Gosalia v l..JarWll'dhtl1' i\iar5m,eh dt'"
: (1981) 4 sce 226 : (1982) SCR 392; State
See, the

19. !v!lA 477.

20.
v

after
22. 2 2 9 , : AIR 1915 PC 59 : 13 pJ! LJ
PC 216 : 51 L-\ 357 : 22 All L] 95L AIR 1954 SC 447 a contrary view as the effect of an act of State
Khan, 19i zl PC 64 : 68 III. 109 : 195 IC 769; Asrrir Ahmad v u Vara Rdda!i, AIR 1964 SC 1043. l/imzdra
PC 1 : 1946 L] 451 : 49 Born LR 235 (PC). AIR J 990 se
522 : 1990 sce 43,
23. 1A 357, (360, taken in th is case. In 1!
Gmend (1985) 3 All ER 17: the cases of Virendra
and State (993) 3 sec 459 not
1947 PC 1: 946 All LJ 451 : 49 Bom LR 235 (PC). cited as precedent.
90 Law of Torts Chapter V Chapter V Justification of Torts 91

the laws in force in that territory before annexation or cession continue until abrogated It was held in both these cases that as the rights claimed in them were not recognised by
the new State but this by itself does not confer any right to the residents of that the Government of India, they could not be enforced. It was also held that the
territory to enforce the rights accrued under those laws before annexation or cession Portuguese laws were continued only from 5 March, 1962 and there was an interregnum
against the new State; (7) the rights of the residents of that territory which are between 20 December, 1961 and 5 March, 1962. It was further held that mere
recognised or conferred by the new State after annexation or cession cannot be abrogated continuance of the old laws did not amount to recognition by the Government of India
by the new State by justifying the abrogation as an act of State for there can be no act of of the rights acquired under these laws before the conquest and annexation of the
State against a subject; (8) Article 372 of the Constitution continues only such orders of Portuguese territory.
the Rulers of erstwhile Indian States which are legislative in nature.
But after the residents of the old State have become subjects of the new State the act of
The legal position that the act of State in the taking over of sovereignty of a new State vanishes and they cannot be deprived of the rights recognised or conferred by the
territory may continue for a of years is illustrated by the historical process by new State except in accordance with law. This rule will also apply to a sovereign of the
which the Indian State of Junagadh was annexed to the Dominion of India. Unlike the old State who has become subject of the new State. It is on this basis that it was held
Rulers of other Indian States, the Nawab of Junagadh did not accede to the Dominion that an order derecognising all the rulers of Indian States passed in September 1960,
of India after the coming into force of the Indian Independence Act, 1947. The Nawab which could not be supported under the Constitution or under any law was invalid. 3 !
to Pakistan leaving the State in a state of chaos. The Administration of Junagadh
was taken over by the Government ofIndia in November, 1947, on the request of the 5.2. Judicial Acts
Nawab's Council and an Administrator was appointed for administering the State. The
Administrator cancelled certain grants made by the Nawab and dispossessed the persons 5.2.1 English Law
who were in possession by virtue of the grants. The territories comprised in the State of
Junagadh were, thereafter, in January, 1949, merged with the United State of Judge.-When a Judge acts within jurisdiction no action lies for acts done or words
Saurashtra. In a suit by the persons dispossessed by the orders of the Administrator, the spoken by a Judge in the exercise of his judicial office, although his motive is malicious
27
Supreme Court held that the said orders arose out of and during the act of State by and the acts or words are not done or spoken in the honest exercise of his office. 32 This
which the territories of Junagadh were annexed by the Dominion of India and they doctrine has been applied not only to the superior courts, but also to Judges of inferior
33 34
could not be challenged in a court of law. It was further held that though de focto courts including the court of a Coroner and a Court-martial. It is essential in all
control of Junagadh was over in 1947, the de jure resumption of courts that the Judges who are appointed to administer the law should be permitted to
sovereignty took place in Januaty, ] 949, when Junagadh was merged with Saurashtra administer it under the protection of the law independently and freely, without favour
and, therefore, the act of State did not terminate till that time?S and without fear. This provision of the law is not for the protection or benefit of a
malicious or corrupt Judge, but for the benefit of the public, whose interest is that the
The cases of Pema Chibbar v UOL 29 and Vinod Kumar Shantilal Gosaiia v Gangadhar Judges should be at liberty to exercise their functions with independence and without
Narsinghdas Agarwal, 30 illustrate the application of the principle of act of State when a fear of consequences. How could a Judge so exercise his office if he were in daily and
new territory is acquired by conquest. The Portuguese territories of Goa, Daman and hourly fear of an action being brought against him, and of having the question
Diu were annexed by the Government of India by conquest on 20th December 1961. submitted to a jury whether a matter on which he had commented judicially was or was
The President of India, on 5 March, 1962, passed an Ordinance by which the laws in 35
not relevant to the case before him. The public are deeply interested in this rule, which
force in the territories of Goa, Daman and Diu were continued until amended or indeed exists for their benefit, and was established in order to secure the independence of
repealed by a competent legislature. The Ordinance was later replaced by an Act which Judges, and prevent their being harassed by vexatious actions. 36 Being free from actions,
was given retrospective effect from 5 March, 1962. In Pema Chibbar's case, certain he may be free in thought and independent in judgment. The principle behind the
import licences granted under the Portuguese law between 9 October and 4 December common law rule of immunity of a Judge, whether of superior court or inferior court,
1961, were not recognised by the Military Governor in a proclamation issued on 30 from an action when he acts within jurisdiction, although maliciously and contrary to
December, 1961. In Vinod Kumar Shantilal's case the right to get mining leases under good faith, has been stated to be that "if one judge in a thousand acts dishonestly within
the Portuguese law was not recognised and applications made for mining leases
according to that law in 1959 were rejected by the officers of the Government of India. 31. HH Maharaja Madhav Rao Jivaji Rao Scindia v UOr, AIR 1971 SC 530, (574): (1971) 1 SC] 295 :
(1971) 2 SCA 257 : (1971) 1 SCC 85. To overcome this decision the constitution was amended by
Constitution (26th Amendment) Act, 1971, and the Rulers were derecognised and their privileges
27. State ofSaurashtra (Now Gujarat) v MohammadAbdulla, AIR 1962 SC 445: (1962) 2 sq 70: (1962) abolished by deleting Articles 291 and 362 and by adding a new Article 363A. This amendment was
2 SCA605. upheld in &ghunathrao Ganpatrao v UOI, AIR 1993 SC 1267: 1994 Supp (1) Scc.
28. State ofSaurashtra (Now Gujarat) v MohammadAbdulla, AIR 1962 SC 445, P 453. See further, State of 32. Anderson v Gorrie, (1895) 1 QB 668 (671): 71 L.T. 382 ; Ward v Freeman, (1852) 2 Ir CLR 460.
Saurashtra v Memon Haji Ismail, AIR 1959 SC 1383 : (1960) 1 SCR 537: 1960 sq 394. 33. Garnet v Ferrand, (1827) 6 B & C 611.
29. Pema Chibbar v UOL AIR 1966 SC 442: (1966) 1 SCWR 234: (1966) 1 SCA 918. 34. Scott v Stansfield, (l868) LR 3 Ex 220.
30. Vinod Kumar Shantilal Gosalia v Gangadhar Narsinghdas Agarwal, AIR 1981 SC 1946: (1981) 4 SCC 35. Per Kelly, CB in Scott v Stansfield, (l868) LR 3 Ex 220,223.
226 : (1982) 1 SCR 392. 36. Fray v Blackburn, (1863) 3 B & S 576.

b
92 Law v 93

908 (HL), p 920

908 (HL). 916,917.
37, McC 1) Mulltm, (J 984) 3 908 (9]6): (1984) 3 \X/LR 1227: 81 Cri (1984) J'-Jl 908 (HL),
McC 11 lv/ullan, (1984) All 908 (916): (1984) v(rLR 1227: 81 Ale C v Mulftin, (1984) 3 AJI ER 908 (HL), p,920,
39. Now liable, see, R. v Manchester
40. McC (1984) Al! (9]6): (1984) 3 WLR 12T7: 81 Cri 54 (1988) 3 '¥lUI. (CA).
41. McC vlv/ullan, (1984) 3 All ER 908 (916): (1984) 3 \~;rLR 1227: 81 Cri Per in Morris v
42. Si,.rosvMoorl',(1974) All 776(788):(1975)QB 18:(1974) 54. Wills v Maccannick, (1762) 2
Sin'os v Moore. (1974) All 776, 789, 55, Thackrah, (1974) Ae 727: (1974) 2 295 : (197 /1) 1 All 859 (HL); Arenson v CCiSSon
44, Sirros v,Moore, (1974) 3 All ER T76, P 784, Beckman 6- Co, (1977) Ae 405: (1975) ER 90] (HL); Pa!aeath v (1985) 2 All
45. v Mom, (1974) 776, 785, (796), 161.
46. Me v lv!.ullan, (1984) 3 }J! ER 908 pp 916, 917 : (1984) 3 56. ,"UfllUfwwn Ii Cox, (1867) LR 2 HL 239 (269), Per
47. Now
J; Sin'oJ v Moore, (1974) 3 All ER
785: (1975) QB 18 (Lord lvIR) ,
48. C (1984) 3 All 908 P 917. 57. (1840) 1 Iv! & G 775,

b
94 Law of Torts Chapter V Chapter V Justification of Torts 95

have jurisdiction to do the act complained of. Similarly, no officer of any court or other believed himself to have jurisdiction to do act complained of. 62 Wilful abuse of his
person bound to execute the lawful warrants or orders of any such Judge, Magistrate, authority by a Judge, that is, wilfully acting beyond his jurisdiction, is a good cause of
63
Justice of the Peace, Collector, or other person acting judicially, can be sued in any civil action by the party who is injured. Where a Magistrate negligently signs an arrest
court for the execution of any warrant or order, which he would be bound to execute, if warrant against acquitted persons, he is not protected by section 1 of the Judicial
58
within the jurisdiction of the person issuing the same. Officers Protection Act, 1850. 64
This Act protects judicial officers, acting judicially, and also officers acting under their The expression "or other person acting judicially" as it occur in section 1 has a very wide
orders. It does not protect judicial officers from being sued in a civil court except in connotation and the section will obviously cover not merely judicial officers and revenue
59
respect of acts done by them in the discharge of their judicial functions but not officers manning ordinary civil, criminal, and revenue courts, but also persons functioning
ministerial. 60 as Tribunals or authorities which are invested with the judicial power of the State to
determine disputes which are entrusted to their special jurisdiction. 65 For example, the
The Act enacts the common law rule of immunity of Judges and is somewhat wider in
Registrar while deciding disputes under Co-operative Societies Act, the authority invested
that unlike the common law rule it makes no distinction between judges of Superior
with jurisdiction under the Payment of Wages Act, 1936, the Commissioner under the
Courts, Judges of inferior courts and Magistrates. Every person acting judicially, whether
Workmen's Compensation Act, 1923,66 the Claims Tribunal under the Motor Vehicles
high or low, has the same protection. The principle behind the Act is the same that it is
in public interest that a person holding a judicial office should be in a position to Act, 1939,67 will all come under the protective provisions of the Act.
discharge his functions with independence and without fear of consequences. The Act The Judges (Protection) Act, 1985.-The Act was enacted by Parliament for "securing
61
came up for construction before the Supreme Court in Anwar Hussain v Ajay Kumar additional protection for judges and others acting judicially." Section 3 of the Act
and the following propositions follow from that case: (1) If an act done or ordered to be provides that "no court shall entertain or continue any civil or criminal proceeding
done by a judicial officer in the discharge of his judicial duties is within the limits of his against any person who is or was a judge for any act, thing or word committed, done or
jurisdiction, he is protected whether or not he has discharged those duties erroneously, spoken by him when, or in the course of acting or purporting to act in the discharge of
irregularly, or even illegally, or without believing in good faith that he had jurisdiction his official or judicial duty or function." The term "judge" is very widely defined to
to do the act complained of; (2) If such an act is without the limits of the officer's mean "not only every person who is officially designated as a judge, but also every
jurisdiction, he is protected if, at the time of doing or ordering it, he, in good faith, person (a) who is empowered by law to give in any legal proceeding a definitive
believed himself to have jurisdiction to order it; (3) The expression "jurisdiction" in judgment, or a judgment which if not appealed against, would be definitive, or a
section 1 of the Act does not mean the power to do or order the act impugned, but judgment which if confirmed by some other authority would be definitive; or (b) who is
generally the authority of the judicial officer to act in the matter; (4) The Act protects a one of a body of persons which body of persons is empowered by law to give such a
judicial officer only when he is acting in his judicial capacity and not in any other judgment as is referred to in clause (a)." The Act confers a very wide protection which is
capacity; and (5) if a judicial officer arrests a person 'recklessly and maliciouslY' not in not limited to judicial functions but also covers official functions. The Act, as it is,
discharge of the duties of his office as a Magistrate but on the ground that he acted completely debars any private person to file any civil or criminal proceeding in a court
under the direction of his superior officer, he can be said to be acting in an executive against a judge even if he has acted outside his jurisdiction or authority and with malice
capacity and not in a judicial capacity and, therefore, he is not protected under the Act. provided the act complained of was done "in the course of acting or purporting to act in
If a Magistrate fails to act reasonably, carefully, and circumspectly in the exercise of his the discharge of his official or judicial duty or function." The remedy of a private person
in such cases against a judge is only to move the Supreme Court, High Court or the
duties, or in other words, acts recklessly in contravention of obvious or well known rules
of law or procedure, and if, thereby, he does that for which he has not any legal Government to take suitable action against the judge for the protection conferred by the
Act does not, as expressly provided in section 3(2), "debar or affect in any manner, the
authority, he cannot be permitted to say that at the time he thus acted, he, in good faith,

58. Act XVIII of 1850, section 1. See, Sinclair v Broughton, (1882) 9 IA 152 : (1883) ILR 9 Cal 341;
62. Per Westropp, J, in Vinayak v Bai Itcha, (1865) 3 BHC (ACJ) 36, 46; Vithoba Malhari v AK Corfield,
Giljashankar v Gopalji, (1905) 7 Bom LR 951 : (1906) ILR 30 Bom 241; Moti Lal Ghose v Secretary of
(1855) 3 BHC (Appx) 1; Queen v Sahoo, (1869) 11 Suth WR (Cr) 19; Collector of Sea Customs v
State for India, (1905) 9 CWN 495; M Lall Bhuyan v Md Sultan, 1973 Assam LR 59 (Gauhati);
Chidambara, (1876) ILR 1 Mad 89.
Muddada Chayanna v G Veerabhadra Rao, AIR 1979 AP 253 : 1979 LS (AP) 159. For ministerial
63. Amminappa v Mohamad, (1865) 2 MHC 443; Reg v Dalsukram Haribhai, (1866) 2 BHC 384; Prahlad
Officers acting in execution of a judicial order, see, Ramlal Kanhaiyalal Somani v Ajit Kumar Chatterjee,
AIR 1973 Cal 372; Devayya Gowda v M Ganapau Srinivas, AIR 1974 Mys 24: (1973) 1 Mys LJ 197. Maharudra v AC Watt, (1873) 10 BHC 346; Calder v Halket, (1839) 2 MIA 293; SPande v SC Gupta,
59. Venkat v Armstrong, (1865) 3 BHC (ACJ) 47; Parankusam v Sturat, (1865) 2 MHC 396; R Raghunada AIR 1969 Pat 194: 1968 Pat LJR 600: 1969 BLJR 1084.
Rau v Nathamuni, (1871) 6 MHC 423; Hari v Janardan, (1873) 10 BHC 350n, Clarke v Brojendra 64. State v Tulsiram, AIR 1971 All 162 : 1970 All WR (HC) 160: 1970 All Cri R 429.
Kishore Roy Chowrihary, (1912) ILR39 Cal 953 : 14 Bom LR 717: 39 IA 163 (PC). 65. For distinction between Court, Tribunal and purely administrative bodies, see, AC Companies v PN
60. Chunder Narain v Brojo Bullub, (1874) 14 Beng LR 254 : Suth WR 391. Sharma, AIR 1965 SC 1595, (1599) : (1965) 1 SCA 723: (1965) 1 Lab LJ 433. Engineering Mazdoor
61. Anwar Hussain v Ajay Kumar, AIR 1965 SC 1651 : (1965) 2 Cr LJ 686 : (1965) 2 SCWR 78 approving Sabha v Hind Cycle Ltd., AIR 1967 SC 1494: 1967 Cr LJ 1380: (1967) 2 SCWR 460.
Teyen v Ram Lal, (1890) ILR 12 All 115; SP Goef v Collector of Stamps, AIR 1996 SC 839, P 845 : 66. Now see Employee's Compensation Act, 1923.
(1996) 1 SCC 573. 67. Now repealed by the Motor Vehicles Act, 1988.

t
 LalU v v 97
State Government or the
under any law for

mentioned of a court of record

Supreme Court from any
judicially within their
unsustainable on merits.

The executive the officers in m do not

any which will
discussed under the
not liable when the
the executive officers are
71
them. The State is also
course of except
72
«-,..,pr·Plcrn functions.

In every State there are administrative or authorities are deal

with mat'ters within their in an administrative manner and
are as administrative decisions. In theif administrative
administrative bodies can and often
that even in this 75. As.wciated bovincial Picture House Ltd v (1947) 2 All .ER 680 (CA);
Minister (1968) 1 All ER 694 Council I! Greater
Council, 1 All ER 129 (CA), 153 (I-IL); Duke, 1 All ER 1954 :
(1984) A.C 437 (HL), Rohtas Industries Ltd v AIR 1969 SC 707 : (1969) sq 1 : (1969)
sce 325. Indian 1986 SC 515: 1985 Tax LR 245 :
power (1985) 2 SeR 287 : 641 (691, 693); Anisminie Ltd v
from Commission, (1969) 1 All ER 208 (HI.), Oit Mills v UOI, AIR 1984 se 1271 :
676: (1984) 3 SCC 465 (494).
nn)tP1-tu'm of
74 76. Re, K (If) infant), (1967) 1 PJi ER 226; R v
1985. The Markman, (1982) 3 All ER 1124 (1126,1
AU ER 935 (HL); !) UO!, AIR 1970 SC : (l970) 1 SCR : (1969) 2 sec 262,
1978 597 (627, (28) : (978) 2 SCR 62J : (1978) sec 248. The
it CC'SU v The Minister Services,
!4aneka v
the power and 77. (1984) 3 Ali ER 935 951) (HL),
relevant for exercise 78. ER 1202: (1982) AC 158 (PC).
79. Council, (1981) Ail ER 1202, 1210, David 1/ Abdul Cader, (1963) 1
(PC). The to!'t will also be committed, even in absence of malice, jf the Public Officer knew
both that what he was was invalid and that it wili 5A v of
68, State 1998 SC 1344, P 1357: (1994) 1 scc 1: 1988 Cr LJ 2012.
69. See, (1985) 3 All 585 : (1986) QB 716 : (1985) 3 See, for this torr
70. See, title 5.1 'Acts , ante. 380.
71. See, tide 3.8 'The State and its officers', m,p48. 80. v Dorset Co (1970) AC 1004: (1970) 2 \VLR 1140 (I-IL) ,
72. See, title 3.8 'The State and its officers', m, 48. 81. v Duke, (1984) 1 All ER 1054 1057: (1984)
73. AC vPN::,'harma, 1965SC (1965) I SCA 723: (1965) I Lab LJ 433. 82. Ltd, (1988) All ER 163 v (1988)
74. See, Acts', ante. 1 : (1988) 2 WLR 493 (CA).
83. Ltd, (1988) 1 All ER 163 (PC) .

...
98 Law of Torts Chapter V Chapter V Justification of Torts 99

5.4.1. Acts of Governing Body In England section 548 of t~e Education Ac:, 1996 has abolished the authority of a
member of staff of a school to gIve corporal pUnIshment to a child. But it does not affect
Expulsion from club etc.-Expulsion of a member from the Club, Association or the right of the parents to inflict moderate corrective punishment and so the school if it
Professional organisation when the governing body acts in bad faith or in breach of the feels that in a particular case corporal punishment is desirable, can recommend the
rules of natural justice may give rise to a claim for damages but such an action will be parents to inflict that punishment. This provision has been held not to affect any right
based on contract and not in tort. 84 The same will be the position in respect of expulsion of the teachers and parents under the Human Rights Act, 1998. 95
85
of a student from an educational establishment. But an expelled member of a Club or
Association has no legal right redress if he be expelled according to the rules, T~e above law r~lating to parental ~nd school master's right to inflict corporal
howsoever unfair and unjust the rules or the action of the expelling body may be, pUnIshment on a chIld by way of correctIOn may not now be consistent with change in
provided that it acts in good faith.
86 general outlook towards methods of correction and respect for human rights of child. 96

5.5. Parental and Quasi-Parental Authority 5.6. Authorities of Necessity

Parents or persons in loco parentis may, for the purpose of correcting what is evil in the The master of a vessel on the high seas or in a foreign port has disciplinary powers not
child, inflict moderate and reasonable corporal punishment, always, however, with this ~nl! over the crew but the passengers also. Such powers are based upon necessity and are
condition, that it is moderate and reasonable. 87 This right is preserved by the Children lImited to the pres~rvation of ~e~essary disc~~line and the safety of the ship.97 The
and Young Persons Act, 1933.
88 commander o~ an alIcr.aft has SImIlar powers. The authority of the captain to inflict
moderate pumshment IS not confined to a case where the vessel is at sea beyond the
The old view was that the authority of a schoolmaster, while it existed, was the same reach of assistance. 99
as that of a parent. A parent, when he places his child with a schoolmaster, delegates to
89
him all his own authority, so far as it is necessary for the welfare of the child. The
5.7. Statutory Authority
master can, therefore, inflict a moderate chastisement on his pupil or apprentice,90 e.g., a
couple of smacks on the cheek. 91 The modern view is that the schoolmaster has his own If the legislature authorizes the doing of an act (which if unauthorized would be a
independent authority to act for the welfare of the child.92 This authority is not limited wrong) no action can be maintained for that act, on the ground that no court can treat
to offences committed by the pupil upon the premises of the school, but may extend to that as a .wrong which the legislature has authorised, and consequently the person who
acts done by such pupil while on the way to and from the schoo1.
93
ha~ sustamed a loss by the doing of that act is without remedy, unless so far as the
leglsl~ture has thought it proper to provide for compensation to him. No action lies for
At a school boys there was a rule prohibiting smoking by pupils whether in the
what IS damnum s~n~ injuria; the remedy is to apply for compensation, if any, provided
school or in public. A pupil after returning home smoked a cigarette in a pubJic street
by the statute legalIsmg what would otherwise be a wrong. The principle is that the act is
and next day the schoolmaster administered to him five strokes with a cane. It was held
not wrongful, not because it is for a public purpose, but because it is authorised by the
that the father of the boy by sending him to the school authorized the schoolmaster to loo
legislature. But the underlying philosophy behind the statutory immunity is that the
administer reasonable punishment to the boy for breach of a school rule, and that the 1esser prIvate
. . ht must Yle
. Id to th~ greater public interest. 101 The statutoty authority
94 ng
punishment administered was reasonable.
extends not merely to the act authonsed by the statute but to all inevitable consequences
of that act. ~02 !f no compe~sation is given, that affords a reason, though not a conclusive
84. TP Daver v Lodge Victoria, AIR 1963 SC 1144 : (1963) 2 sq 465 : (1963) SCD 772, Bomor v Musicians one, for thInkIng that the Intention of the legislature was, not that the thing should be
Union, (1956) AC 104 : (1955) 3 WLR 788 (HL); Maclean v Workers Union, (1929) 1 Ch 602.
85. Herring v Templeman, (1973) 3 All ER 569 (CA) , p 585. Also see, UP Singh v Board of Governers
done at all events, but only that it should be done, if it could be done, without injury to
MaulanaAzad College, 1982 M P LJ 75 (79, 80).
86. Maclean v Workers Union, (1929) 1 Ch 602; TP Daver v Lodge Victoria, AIR 1963 SC 1144: (1963) 2
sq 465: 1963 SCD 772. 95. R (on the application o/Williamson) v Secretary o/State for Education and Employment, (2003) 1 All ER
87. Regina v Hopley, (1860) 2 F & F 202, 206; Winterburn v Brooks, (1846) 2 C & K 16; Aft Gen v Edge, 385 (CA) affd. (2005) 2 All ER 1 (HL).
(1943) IR 115. 96. See Street, Law o/Torts, 10th Edn, pp 95,96.
88. 23 Geo. V, Ch 12. 97. Aldworth v Stewart, (1866) 4 F & F 957; Hook v Cunard Steamship Co. Ltd, (1953) 1 WLR 682: (1953) 1
89. Per Cockburn, q, in Fitzgerald v Northcote, (1865) 4 F & F 656, 689. All ER 1021.
90. Penn v Ward, (1835) 2 Cr M & R 338. 98. Tokyo Convention Act, 1967.
91. Sankunni v Swaminatha Pattar, (1922) ILR 45 Mad 548. 99. LambvBurnett,(1831)lCr&]218.
92. Ramsay v Larsen, (1965) ALR 12l. 100. Per Blackburn, J, in Mersey Docks Trustees v Gibbs, (1866) LR 1 HL 93, 112; Hammersmith Ry v Brand,
93. Cleary v Booth, (1893) 1 QB 465. See, Hunter v Johnson, (1884) 13 QBD 225. But a music-master of a (1869) LR 4 HL 171; East Fremantle Corporation v Annois, (1902) AC 213· Quebec Ry. v Vandry
cathedral is not justified in even moderately beating a chorister for singing at a catch club, though such (1920) AC 662. "
singing might be injurious to his performing in the cathedral: Newman v Bennett, (1819) 2 Chit 195. 101. Allen v Gulf Oil Refinery Ltd, (1981) 1 All ER 353, P 365: (1980) QB 156 (HL) (Lord Roskill).
94. Rex v Newport (Salop) Justices: Wright, £xparte, (1929) 2 KB 416. 102. Manchester Corpn v Famworth, (1930) AC 171 : 99 L.].K.B. 83: 142 LT 145 (HL).

h
 v

G 336, 341. V Foucar Brothm Ci"' Co v The

v Ahmedabad (190 i )
PR No. 103 of
Resen'oir, (1878) 3

The

Board, (1943) ILR 19

p/p,·rri.ritll Board, (1975) ACJ 494 (496) (MP).
70 LR 554. etc, "Yvas
108. 11 Hill, (1881) 6 Cas 193,213; Ccmadi,m and cotnfort
SO~ith(imp'ton CC, (1940) the extent that the environnlcnt has been
(1885) 29 Ch D 80, to an industrial Parliamem must be taken to have dULHlJW,CU
matter is not open to doubt. But the statutory extends
. the environment and an alteration of standard. It confers
387. The for any nuisance which can be shown (the burden of so showing being on the
(1909) ILR
309.
113. Manchester Corporation 11 Farnworth, (1930) AC 171 (HL).
114. Allen v Gulf Oil Refining Ltd, (1981) 1 All ER 353: (1981) 2 WLR ]88 (HL).

b
102 Law of Torts Chapter V Chapter V Justification of Torts 103

appellants) to be the inevitable result of erecting a refinery on the site, not, I repeat, the existing care an accident happens, he may plead that it was due to inevitable accident. People
refinery but any refinery, however, carefully and with however, great a regard for the interest of must guard against reasonable probabilities, but they are not bound to guard against
POSS!'b'l"
adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent C •
fantastIC I lues. 121
that the actual nuisance (if any) caused by the actual refinery and its operation exceeds that for
which immunity is conferred, the plaintiff has a remedy. I IS All causes of inevitable accident may be divided into LWO classes: (1) those which are
The case also restates the following propositions: 116
(1) The extent of the statutory
occasioned by the elementary forces of nature unconnected with agency of man or
authority and immunity depends on the construction of the relevant statute; (2) Where other cause; and (2) those which have their origin either in the whole or in part in the
Parliament by express direction or by necessary implication has authorised the agency of man, whether in acts of commission or omission, nonfeasance or of
construction and use of an undertaking or works, that carries with it an authority to do misfeasance, or in any other causes independent of the agency of natural forces. The
what is authorised with immunity from any action based on nuisance; (3) The term "act of God' is applicable to the former class. 122
undertaker must, as a condition of obtaining immunity from action, carry out the work If, in the prosecution of a lawful act, an accident, which is purely so, arises, no action
and conduct the operation without negligence, that is, with all reasonable regard and can be sustained for any injury arising therefrom. 123
care for the interests of other persons; (4) Immunity from action is withheld where terms
of the statute are permissive only, in which case the powers conferred must be exercised The defence of inevitable accident used to be essentially relevant in actions for trespass
in strict conformity with private rights; (5) The absence of compensation clauses from when the old rule was that even a faultless trespasser contact was actionable, unless the
an Act conferring powers affords an indication that the Act was not intended to defendant could show that the accident was inevitable. In other words, the burden used
authorise interference with private rights, but this indication is not conclusive; (6) The to be on the defendant to show that his conduct was utterly without fault, without
immunity extends to any nuisance which is the inevitable result of doing the act negligence. But according to the subsequent development the burden of proving
authorised by the Act. negligence whether the action be framed in trespass or negligence lies on the plaintiff. 124
Therefore, now the plaintiff's suit, whether it be in trespass or negligence, fails if he is
Damage to underground pipes by steam-roller.-A gas company had statutory powers to unable to prove negligence and the court is not required to give a finding that the
place mains and pipes under certain highways within the jurisdiction of the defendants, defendant has proved or not proved that the damage was caused because of inevitable
who were by virtue of a statute bound to repair the highways. The defendants began to accident. The plea of inevitable accident is thus now not relevant in these cases. As
use steam-rollers of considerable weight for the purpose of repairing the highways, and regards cases of strict liability governed by the rule of Rylands v Fletcher,125 the form of
thereby fractured pipes belonging to the company laid under the highways. It was held inevitable accident which is known as 'act of God' is alone relevant. Further, inevitable
that the com~any was entitled to an injunction restraining the defendants from using accident in any form is no defence to a claim based on the rule of strict liability as laid
such rollers. II
down in Me Mehta v UOJ, 126 which is not subject to any exception. It will thus be seen
that the plea of inevitable accident has now lost substantially all its utility. 127
5.8. Inevitable Accident
Damage by explosive substance.-The defendants, a firm of carriers, received a
An 'inevitable accident', or 'unavoidable accident', is that which could not possibly be wooden case to be carried to its destination and its contents were not communicated.
118
prevented by the exercise of ordinary care, caution and skil1. It means an accident On an intermediate station, it was found that the contents were leaking. The case was,
physically unavoidable . .A5 observed by Greene, M.R., an accident is "one out of the therefore, taken to the defendants' offices, which they had rented from the plaintiff,
ordinary course of things, something so unusual as not to be looked for by a person of and a servant of the defendants proceeded to open the case for examination, but the
ordinary Forudence" .119 It does not apply to anything which either party might have nitro-glycerine which it contained exploded. All the persons present were killed, and
1 the building was damaged. An action was brought by the landlord for damages
avoided. 0 If a man carries firearms or drives a horse, his duty is merely to use
reasonable care not to do harm to others thereby; and if notwithstanding the use of such suffered by parts of the building let to other tenants as well as to the defendants. The
defendants admitted their liability for waste as to the premises occupied by them but
115. Allen v Gulf Oil Refining Ltd., (1981) 1 All ER 353 (HL), pp 357,358: (1981) 2 WLR 188. disputed it as to the rest of the building. It was held that, in the first place, the
116. Allen v Gulf Oil Refining Ltd., (1981) 1 All ER 353 (356, 357, 358): (1981) 2 WLR 188 (HL) (Lord
Wilberforce) 359 (Lord Edmund davies). See further Department of Tramport v North West Water
Authority, (1983) 3 All ER 273 (HL), Mareic v Thames Water Utilities Ltd, (2002) 2 All ER 55, p 72 (CA). 121. Per Lord Dunedin in Fardon v Harcourt-Rivington, (1932) 146 LT 391 (392): 48 TLR 215.
117. Gas Light and Coke v Vestry of Sf Mary Abbats, Kensington, (1885) 15 QBD 1. See, Chichester 122. Nugent v Smith, (1876) 1 CPD 423, 435; Forward v Pittard, (1785) 1 TR 27.
Corporation v Foster, (1906) 1 KB 167. 123. Davis v Saunders, (1772) 2 Chit 639, Holmes v Mather, (1875) LR 10 Ex 261; Stanley v Powell, (1891)
118. The Marpesia, (1872) LR 4 PC 212; The Merchant Prince, (1892), p 179; The Schewan; The Albano, I QB 86 : 39 WR 76.
(1892), p 419, 432, 434. 124. Fowler v Lanning, (1959) 1 All ER 290 : (1959) 2 WLR 241 : (1959) 1 QB 426; Letang v Cooper,
119. Makin Ltd. v L & NE Rly, (1943) 1 All ER 362: 168 LT 394: 59 T.L.R. 307. (1964) 2 All ER 929 (CA).
120. Saner v Bilton, (1878) 7 Ch D 815; Manchester Bonded Warehouse Co v Carr, (1880) 5 CPD 507; 125. Rylands v Fletcher, (1868) LR 3 HL 330.
Manindra Nath Mukerjee v Mathuradas Chaturbhuj, (1945) 49 CWN 827, see, Steiert v Kamma, (1891) 126. MC Mehta v UOJ, (1987) 1 SCC 395. See further, Chapter XIX tirle 19.2.2, p 546.
PR No.3 of 1891, where a servant was held not liable for breaking a lamp. 127. Winfield and Jolowicz, Tort, 18th Edn, p 718.
104 Law v v 105

defendants were not to in the absence of '-a"VH.aVA~

choice. 134 ~'1H"V~U not
the contents fJa'v'~~.h~C offered them for and
between associations, and and is permissible,
in fact and . [;. d us F'au' . . . If d f
accident. 128 are m rmge. IS Itse no groun 0 action,
cause. 136 n'r".Jgh t 0 f .
eXIsts even wh en t h e means
Injury to m(lerSe111ll.g is not a wrong, the seller sell some article at
was beating them unremunerative to attract customers, nor is it a wrong to advantages to
defendant a~'."~'.H customers who will with a company to t he exc1USlOH . 1. 137
· 0 f'lts nva
action brought by the "'"<tH"UH action
and proper act in which he might do proper and safe means; that if, in as per will, the right is
doing this act, he accidentally hit the .n"'u~'UU in the eye and wounded it was the motive may or otherwise. No use of
result of pure accident, and · 129
1Ie. legal to a proper can become illegal because it is
by a motive is or even malicious. 138 For instance, the
The his saloon motor-car in a street and left his inside, The U""UH"U"_,- or removal of the soil in a man's own land, it is the means (by
had always been quiet and docile. As the was walking past car, dog, percolation) of drying up his neighbour's spring or does not constitute IllvaSlOn
which had been barking and jumping about in the car, smashed a panel, and a of a legal right, and will not sustain an action. 139
splinter entered the plaintiffs left which had to be removed. an action for
damages it was held that the not recover as a motor-car with a dog in it
was not a was dangerous in itself, as the accident was so there 5.10.
. 130
was no negligence in not taking precautions It. Harm and is not actionable. This
Injury to runaway defendant's horses while being driven by his servant on the sufferer is willing
a public highway, ran away the of a dog and became so unmanageable that no Injury is A man cannot ~~U~>H=.'H of which he has
the servant could not stop but could, to some extent, guide them. exposed himself with knowledge and
trying to turn around a corner safely, the servant guided them so that "is founded on good sense and justice. One who invited or assented to an act being
without his intending it down and injured the who was in the done towards cannot, when he suffers it, of it as a wrong.,,140 The
141
highway. It was held that no action was maintainable by the plaintiff for the servant had maxim presupposes a tortious act by defendant. The maxim applies, in the first
done his best under the circumstances. 131 place, to intentional acts would otherwise A trespasser,
knowledge that there are spring guns in a wood, be ignorant of
Injury by pellet.-The defendant, who was one of a shooting party, fired at a pheasant. particular spots where they are placed, cannot maintain an action an injury received
One of the pellets from his gun glanced off bough of a tree and accidentally in consequence of his accidentally treading on the wire communicating with the
wounded plaintiff, who was engaged in carrying cartridges and game for the party. It
gun, and thereby letting if off,142 for he himself to mischief
was held that the was not 132 The ratio in this case has been criticised as
happened. But a person, who climbs over a of a stray and
erroneous, though the decision itself can be supported on [he ground of voienti non fit
. . . 133 by a spring gun, set without
tnJurza.

134. Hilton v Eckersley, (1855) 6 E & B 47, 74, 75. See also, lrunVI:vue Ltd v N Satchidanand, (201l) 7
SCC 463: (201l) 7 SCALE 159.
The exercise of ordinary fights a purpose and in a lawful manner is no wrong 135. Per Lord Lindley, in Quinn v Leathem, (l90l)AC495, 539: 85 L.T. 289: 17T.L.R. 749.
even if it causes damage. It is In reference to cases that we meet with the 136. Gloucester Grammar School, (1410) 11 Han IV, 47.
damnum sine Prima of a in a free country, in all 137. Mogul Steamship Co v McGregor, Gow & Co, (1892) AC 25 : 40 W.R. 337,
matters not contrary to on his trade to 138. Per Lord Watson in Mayor, etc o/Bradford v Pickles, (1895) AC 587.
139. Ballacorkish Silver, etc, Mining Co v Harrison, (1873) LR 5 PC 49, 61. See, Chasemore v Richards,
(1859) 7 HLC 349; Acton v Blundell, (1843) 12 M & W 324; Baird v Witliamson, (1863) 15 CBNS
376; Smith v Kenrick, (1849) 7 CB 515.
128. Nitro-Glycerine case, (1872) 15 Wallace 524. 140. Smith v Baker & Sons, (1891) AC 225 : 65 L.T. 467 (HL) referred to in Imperial Chemical Industries v
129. Brown v Kendal, (1859) 6 Cussing 292. Shattuell, (1965) AC 656; See also, Branch NatjonalInsurance Co Ltd v Agilan (201l) 2 TN
130. Pardon v (J 48 TtR 215, 146 LT 391 : 76 S.). 61. MAC 429.
U 1. Holmes l'lYfathe;, 10 261,267; W;lkeman v Robinson, (Jil23j 1 5. 141. Wooldridge v Summer, (1962) 2 All ER 978: (1963) 2 QB 43 (CA).
U2. Stanley v Powell, (1891) 1 QB 86 : 63 LT 809. . 142. [lott v Wilkes, (1820) 3 B & AId 304, As a result of this case except by night was
133. Vide, Frederick Pollock, The Law o/Torts, 15th Edn, p 140; Beven, 3rd Edn, Preface, p VI. made an offence by 7 & 8 Ceo. IV, c. 18, which is repealed and & 25 Vic. c. 95.
143. Bird v Holbrook, (i 828) 4 Bin 628 .
 Law of Torts Chapter V Chapter V Justification of Torts 107
106

The perfectly sound principle underlying this maxim is daily illustrated in common (i) ~ doctor ,?as to see~, and sec~,r~ the consent of the patient before commencing a
treatment (the term treatment mcludes surgery also). The consent so obtained should
life. It protects the surgeon who amputates a limb; the football player, boxer, or fencer, be real and v~lid, which means that: the patient should have the capacity and competence
so long as they play fairly according to the rules of the game; and it prevents a person to consent; hIS consent should be voluntary; and his consent should be on the basis of
who chooses to pay a debt barred by the Statute of Limitations, or not enforceable by adequate information concerning the nature of the treatment procedure, so that he knows
144
reason of infancy, from getting his money back. The application of the maxim is not what he is consenting to.
145
dependent upon any valid contract but upon the competence of the decision making (ii) The "adequate information" to be furnished by the doctor (or a member of his team) who
capacity of the person at the time the consent was given.
146
So, a minor who is capable treats the patient, should enable the patient to make a balanced judgment as to whether he
of making a reasonable assessment of the advantages and disadvantages of a treatment should submit himself to the particular treatment or not. This means that the doctor should
disclose. (al .nature a~d procedure of the treatment and its purpose, benefits and effect; (b)
proposed by a physician or a surgeon can give a valid consent. In Gillick v West Norfolk
alternan.ves If any aVailable; (c) an ?utline of the substa~tial risks; and (d) adverse consequences
and Wisbeck Area Health Authority,147 the House of Lords held that a girl under 16 did of refusmg treatment. But there IS no need to explam remote or theoretical risks involved
not, merely by reason of her age, lack legal capacity to consent to contraceptive advice which may ~ri~hten or co~fuse a patient and result in refusal of consent for the necessa~
and treatment by a doctor. It was also held that having regard to the reality that a child treatment. SlmJ!arly, there IS no need to explain the remote or theoretical risks of refusal to
became increasingly independent as it grew older and parental authority dwindled take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment.
~ balan~e should be achieved between the need for disclosing necessary and adequate
correspondingly, the law did not recognise any rule of absolute parental authority until a
mfor~atlon and at the same time avoid the possibility of the patient being deterred from
fixed age; parental rights were recognised by the law only as long as they were needed for agreemg to a necessary treatment or offering to undergo an unnecessary treatment.
the protection of the child and such rights yielded to the child's right to make his own
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for
decisions when he reached a sufficient understanding and intelligence to be capable of
therape~tic treatment. Consent given for a specific treatment procedure will not be valid for
making up his own mind. conductmg some other treatment procedure. The fact that the unauthorized additional
To avoid a claim for personal lllJUry against a doctor, it is not necessary that the surgery. is beneficial to ~e patient, ?r that it would save considerable time and expense to
the patient,. or woul~ re~leve the patient from pain and suffering in future, are not grounds
consent should be informed consent meaning thereby an objective criterion of what is a
of. defenc~ m an actIOn m .t?rt for negligence or assault and battery. The only exception to
sufficient disclosure of risk to ensure that the patient is enabled to make an intelligent thIS rule .IS where the addItIOnal procedure though unauthorized, is necessary in order to
decision. 148 The English law does not recognise this doctrine of informed consent and save the l~fe or preserve the health of the patient and it would be unreasonable to delay such
the test of liability in respect a doctor's duty to warn his patient of risks inherent in unauthonzed procedure until patient regains consciousness and takes a decision.
treatment recommended by him is the Bolam test which is the same as the test (iv) There can be a common consent for diagnostic and operative procedures where they are
recommended for diagnosis and treatment, namely that the doctor is required to act in conte~~lated. There can also be a common consent for a particular surgical procedure and
accordance with a practice accepted at the time as proper by a responsible body of an addltlonal or further procedure that may become necessary during the course of surgery.
medical opinion. 149 In America, it is the 'reasonably prudential patient' tes~ evolved in (v) The nature and extent of information to be furnished by the doctor to the patient to secure the
Canterbury v Spence,150 which is applied. Having regard to Indian conditions the consent need ~ot b.e of the stringent and high degree mentioned in Canterbury but should be of
151 the e~tent v:hlch IS a~cepted as normal and proper by a body of medical men skilled and
Supreme Court in Samira Kohli v Prabha Manchanda laid down the law applicable in exp.enenced m the partlcular field. It will depend upon the physical al1d mental condition of the
India on the question of patients' consent as follows: patient, the nature of treannent, and the risk and consequences attached to the treatment.
As regards spectators at a game, the law has been stated to be as follows:
A person a~t~nding a gan:e or competition takes the risk of any damage caused to him by any
144. Bize v Dickason, (1786) 1 TR 285 (287).
act o~ a part~clpant done m the cause of and for the purposes of the game or competition
145. Buckpitt v Oates, (1968) 1 AU ER 1145.
notwlthstandmg that such act may involve an error of judgment or a lapse of skill, unless the
146. For competence to consent or refuse medical treatment see Cameron Stewart and Paul Beigler, 'A
Primer on the law ofcompetence to refose medical treatment, (2004) 78 ALJ 325. participant's conduct is such as to evince a reckless disregard of the spectator's safety. 152
147. Gillick v West Norfolk and Wisbeck Area Health Authority, (1985) 3 All ER 402 : (1986) AC 112 : The spectator ~a~es the ris~ because such an act involves no breach of the duty of care
(1985) 3 WLR 830 (HL).
148. Sidaway v Bethlem Royal Hospital Governors, (1985) 1 All ER 543: (1985) AC 871 (HL).
owed by the partlClpant to hIm and not because of the doctrine expressed by the maxim
149. Sidaway v Bethlem Royal Hospital Governors, (1985) 1 All ER 543 : (1985) AC 871 (HL). Not followed vo ientz. non fi'"
t t~Jurta. 153 As regards participants in a sporting event, they may be held to
in Australia see Rogers v Whitaker, (1992) 175 CLR 475; Rosenberg v Percival (2001) 75 ALJR 734, pp have accepted nsks w~i~h are inherent in that sport, but this does not eliminate all duty
735, 736. In Roger's case an eye surgeon's failure to warn the plaintiff of a 1 in 14,000 chance of of care of the one partICIpant to the other; the question whether there has been a breach
blindness was held to be negligence. According to this case doctors have a duty to warn or advise a
patient of any material risk inherent in the treatment. See further, (2001) 75 AL] 423-426 (Medico's of such duty will depend upon a variety of circumstances and the rules of the sport may
failure to warn).
150. Canterbury v Spence, 464 F 2ei 772: 150 US App. DC 263 (1972).
151. Samira Kohli v Prabha Manchanda, (2008) 2 SCC 1 paras 48 to 50 : AlR 2008 SC 1385. Followed in 152. Wooldridge v Sumner, (1962) 2 All ER 978: (1963) 2 QB 43: (1963) 3 WLR 616 (CA).
Nizam's Institute of Medical Sciences v Prasanth S. Dhananka, (2009) 6 SCC 1 : 2009 CrL] 3012 : 153. Wooldridge ~ Sumner, (1962) 2 All ER 978: (1963) 2 QB 43: (1963) 3 WLR 616 (CA).For injury to a
(2009) 6 ]T 651. person who IS not a spectator see text and footnote 216, p 528.
108 v Justification 109

pnlnIO\TP[ is not at IS acts of the

163
servants.
There are certain maxim:
(i) No consent-no leave or licence-can legalise an unlawful act, eg,
fists, a match or a duel with swords. But the defendent's
reasonable. when the an man, LHd"'Oll1',CU
his forward menacingly, the plaintiff gave a to the UC'LCUU'Uil
who then gave a severe blow to the plaintiffs eye with his fist, the
nineteen stitches an operation, it was held that neither volenti non
causa non oritur actio applied and the was entitled to
164
for the

(ii) The maxim has no validity against an action based on a breach of statutory 165 Thus, it
is no answer to a claim made by a workman his employer for caused
a breach by the employer of a dury imposed upon him by a statute. But where the
negligence or breach of statutOlY duty is on the part of an employee of the plaintiff who
knowingly accepts the risk flowing from such breach and the employer-defendant is not
guilty of negligence Of breach of statutOlY duty, the defence of volenti non fit IS
available to the defendant. 167

where the plaintiff has, under an caused the

HH"~V"'RH"'~',
consciously and faced a even of
to rescue another imminent danger of personal inju!'j or death, whether the person
endangered is one to whom he owes a duty of protection, as a member of his family, or is a
mere stranger to whom he owes no such special duty.16g The rescuer will not be deprived of
his merely because the risk which he runs is not the same as that run by the person
169
whom he rescues. This principle, which has been based upon a weight of authority in
America, has now been adopted by the Court in England. But where there is no
need to take any risk, the person suffering harm in doing so cannot recover. 170
(iv) to cases of negligence, 17l to cover a case
defence on the basis of the must be based on implied agreement whether ="vucuU"h
ln
contract or not. The defence is available only when the plaintiff freely and
full knowledge of the nature and extent of the risk impliedly to incur it and to waive
any claim for injmy. In Thus, there are several cases where the driver of a vehicle a
passenger a lift and, at the same time, gives him reasonable notice that he rides at his own risk.

163. Ibid.
164. Lane v Holloway, (1967) 3 All ER 129 ; (1967) 3 WLR 1003 (CA).
165. Wheelar v New Merton B04ld Mills, Ltd., (1933) 2 KB 669 ; 149 LT 587 ; 49 T.LR. 567; Baddeley v
Earl Granville, (1887) 19 QBD 423. See also, Delhi Jal Board v National Dignity & R~r;hts
ofSewerage & Allied Workers (2011) 8 SCC 568; (2011) 8 JT 232.
J 54. Rootes Shelton, (1968) ALR 33; Condon v Basi, (1985) 2 All ER 453, p 454; (1985) 1 WLR 668 (CA).
155. Condon v Basi, supra, 166. Wheelar v New Merton BoardlvIills, Ltd., (1933) 2 KB 669; 149 LT 587; 49 T.L.R. 567
167. Imperial ChemiCClllndustries Ltd v Shatwell, (1964) 2 All ER 999, (1965) AC 656.
156. Woods I} lvIulti
168. Haynes v Harwood, (1935) 1 KB 146 (157) ; 152 LT 121 ; 51 T.L.R. 100; Dicta to the contrary in
157. Woods v Multi
Cutler v United Dairies (London) Limited, (1933) 2 KB 297; 149 LT 436, questioned.
158. Per Bowen, LJ in Thomas l' (1887) ] 8 QBD 685 (696,697).
169. Chadwick v British Transport Corporation, (1967) 2 All ER 945.
159. Osborne v London and North Western Ry Co, (1888) 2i QBD 220 (223, 224); v Ottawa Ek'ctrie
170. Cutler v United Dairies (London) Limited, (1933) 2 KB 297 ; 149 LT 436.
Co, (1926) AC 725; South Indian Industrials Ltd, Madras v Alamelu Ammal, (1923) MWN 344 (345).
171. Dann v Hamilton, (1939) 1 KB 509 ; 160 LT 433; Cleghorn v Oldham, (1927) WM 147 ; 43 TLR 465;
160. Smith v Baker & Sons, (1891) AC 325 ; 65 L.T. 467 ; 40 WR 392 (HL) referred to in Chemicrt/
Wooldridge v Sumner, (1962) 2 All ER 978 (CA).
Industries v Shatwell, (1964) 2 All 999; (1965) AC 656 (HL).
172. Burnett v British Water Ways Board, (1973) 2 All ER 631 (635); (1973) 2 Lloyd's Rep. 137; (1973) 1
161. Smith v Baker & Sons, (1891) AC 325 ; 65 L.T. 467 ; 40 WR 392 (HL) referred to in Chemical WLR 700 (CA).
Industries v Shatwell, (1964) 2 All ER 999; (1965) AC 656 (HL).
173. Burnett v British Water Ways Board, (1973) 2 All ER 631 (635); (1973) 2 Lloyd's Rep. 137 ; (1973) 1
162. Imperial Chemical Industries v Shatwell, (1964) 2 All ER 999 (HL). WLR 700 (CA).

t
110 Law of Tol'ts Chapter V Chapter V Justification of Torts 111

174
The passenger is bound by the notice and he cannot daim. Similarly, when dangerous ground that there was no need to take any risk. While the plaintiffs, husband and wife,
operations are in progress on land and are apparent, and the owner gives a licensee permission were in a shop as customers, a skylight in the roof of the shop was broken, owing to the
to go on it, but at the same time give him reasonable notice that he comes at his own risk,
negligence of contractors engaged in repairing the roof, and a portion of the glass
again, he cannot daim. 175 But when the plaintiff has no choice or when the notice is given at a
and struck the husband causing him a severe shock. His wife, who was standing close to
stage when it is beyond the ability of the plaintiff to make a choice there can be no implied
agreement and the defence on the basis of the maxim must fail. 176
him, was not touched by the falling glass, but, reasonably believing her husband to be in
danger, she instinctively clutched his arm, and tried to pull him from the spot. In doing
(v) The ma.'{im does not also apply where the act of the plaintiff relied upon to establish the
this she strained her leg in such a way as to bring about a recurrence of thrombosis. In
defence under the maxim is the verv act which the defendant was under a to prevent.
Thus when a prisoner with know; suicidal tendencies committed suicide in police
an action to recover damages from the contractors, it was held that the wife was also
custody as the police failed to take reasonable precautions for suicide, the entitled to damages along with the husband, inasmuch as what she did was, in the
defence of volenti non fit injuria could not be availed of by the in an action for .
Circumstances, a natura1an d proper th'mg to do. 181
negligence brought by administratix of the estate of the deceased. 177
Travelling in motor-car knowing that driver is drunk.-The plaintiff, knowing that the
(vi) The maxim wili also not apply when the act relied upon is done because of the driver of a motor-car was under the influence of drink and that, consequently, the
Dsychologicai condition which the defendant's breach of duty had induced. Thus a person
chances of accident were thereby increased, chose to travel by the car. She was injured in
~l~o was ~badly injured in a factoty accident caused by the n~gligence or breach of duty of
the defendant and suffered severe depression and committed suicide couid not be said to
an accident caused by the drunkenness of the driver, in which the driver was killed. In
have acted voluntarily and in a claim by widow for damages under the Fatal Accidents Act. an action against the personal representative of the driver, the defendant raised the
The defendant could not the defence under the maxim.
178 defence of volenti non fit injuria. It was held that, except perhaps in extreme cases, the
maxim did not apply to the tort of negligence and that the plaintiff was entitled to
m 182
recover.
station in a street in which were a
runaway horses with a van attached coming down the street out Travelling at own risk.-The plaintiff, an infant 17 years old, agreed to be carried in
in consequence, in respect of which he the car of the defendant, who was also 17 years old, at the plaintiffs own risk. The car
to have struck a waH due to the defendant's negligence and the plaintiff was injured. On the
attempt to stop horses in an endeavour to prevent question whether the defence volenti non fit injuria was an answer to the plaintiffs claim
were under a for damages, it was held that the plaintiff, though an infant in law, could not enforce a
right which he had voluntarily waived or abandoned, and, accordingly, the defence of
VOlent!
I .
t lnJurza succeeded . 183
non fi'"

5.11. Necessity
There are three classes of cases to which the defence of necessity applies, viz. (1) Cases
of public necessity; (2) Cases of private necessity; and (3) Cases where assistance is given
· d person Wit
to a t hIf . hout h'IS consent as a matter 0 f ' 184
neceSSIty.
The defence of public necessity is based on the maxim salus populi suprema lex (the
welfare of the people is the supreme law), a maxim founded on the implied assent on
the part of every member of society, that his own individual welfare shall, in cases of
necessity, yield to that of the communiry and that his property, liberty and life, shall,
174. 1) Oates, (1968) 1 All ER 1145; Bennet l' (1971) 2 All ER 248; Birch IJ nomas, (1972) under certain circumstances, be placed in jeopardy or even sacrificed for the public
1 ER 905; Burnett v British w'1ter Board, All ER 631 (635) : ([973) 2 good. There are many cases in which individuals sustain an injury for which law gives
137: (1973) WLR700. no action; as, where private houses are pulled down, or bulwarks raised on private
175. Aj'hdown v Smnur/ V7illiams & Som Ltd, (1957) 1 All ER 35; White v Blac.izmore, (19"72) 3 All ER 158; property, for the preservation and defence of the kingdom against the King's
Burnett v British Writer Board, (1973) 2 AJI ER 631 (635) : (1973) 2 137: (1973) 1
WLR 700.
enemies,185 or where houses are pulled down to stop a fire, or goods cast overboard to
i 76. Burnett 11 British W;Uer Board, (1973) 2 All ER 631, (635): (1973) 2 Lloyd's 137: (1973) 1
WLR700.
177. Reeves v Cormnissiol1er (1998) 2 All ER 381 (CA) upheld in (1999) 3 All ER 181. Brandon v Osborne Garett & Co, (1924) lKB 548.
897 (HL). 182. Dann v Hamilton, (1939) 1 KB 509: (1939) I All ER 35.
178, COI'I"1!IBC Vehicle.r. (2008) 2 All ER ')1;3 (HL). Forrhis case see fimher IX title 9.1.3.4,1, P 193. 183. Buckpitt v Oates, (1968) 1 All ER 1145.
179. v Harwood, (935) ] KB 146: 78 5J 80l. 184. F v West Berkshire Health Authority, (1989) 2 All ER 545, P 564 (HL).
180. v United Dairies (London) Limred, (1933) 2 KB 297: 149 LT 436. 185. Governor, etc. OfCtlSt Plate Manufacturers v Meredith, (1792) 4 TR 794 (797).

t
 112 Law of Torts Chapter V Chapter V Justification afTorts 113

186
save a ship or the lives of those on board. It is only in cases of existing, immediate, question. But in a case to removal of a stall built a pavement squatter on a
and overwhelming public necessity that any such right exists. 187 Further the defence of public street, it was held Court that the municipal corporation of Delhi
necessity is not available to a defendant whose negligence has created or contributed to coul·d not be compe11 ed to a sta11 to squatter h·IS eVICtion.
.. 195 Ad' n m
the necessity.lS8 The doctrine of necessity is confined within very narrow limits eg, Sodan Singh v New Delhi 196 the Supreme Court, although
urgent and transient situations of great and imminent danger to life in which the law upholding the fundamental right under Article 19 (l) (g) of Constitution
permits some encroachment on private property.189 If the Crown takes the subject's to trade on street pavements subject to negatived the right to occupy any
land for the defence of the country, the Crown has to pay compensation for its use particular place on the pavement. 197 The court also held that Article 21 was not attracted
190 l98
and occupation. It has been held by the House of Lords that where demolitions in such cases and reaffirmed that "if a person puts up a dwelling on pavement
were carried out lawfully in exercise of royal prerogative, though without statutory whatever may be the economic compulsions behind such an act, his user of the pavement
there was no general rule, that the prerogative could be exercised, even in . h . d" 199 H
wouId rema1l1unautonse.owever.1I1a . case reIatlng
. to removal 0 f
time war or imminent danger, by taking or destroying property without making dwellers from land belonging to the Bombay Port Trust, the Supreme Court did not
. 191
payment f,or It. permit the removal of those who were in occupation atleast two years to a cut off
date ftxed by the court without providing them alternative sites. 2oo In holding so, court
Private necessity may also give rise to a defence of necessity. In the context of an
took into account the untold hardship and misery was bound to result to
argument that pavement dwellers of Bombay had in occupying pavements, though
out of sheer helplessness, committed the tort of trespass, the Supreme Court occupants on removal of their hutments. Apart from the question of applicability of Article
observed: 21 when a trespasser who has built his home on public land is ejected it may also be a
question whether in such a case Article 17 of the International Covenant on Civil and
Under the law of torts necessity is a plausible defence, which enables a person to escape Political Rights, 1966 to which India is a party is attracted. Article 17 of the Covenant in
liability on the ground that the acts complained of are necessary to prevent greater damage, inter
so far as relevant provides: "No one shall be subjected to arbitrary or unlawful
alia, to himself. Here, as elsewhere in the law of torts, a balance has to be struck between
competing sets of values. 192 with his privacy, family, home or correspondence". The corresponding Article in the
European Convention is Article 8 which has been interpreted differently by the House of
But under the English Law homeless ness is not a valid defence. In the words of Lord 201 202
Lords and European Court of Human Rights with reference to the ejectment of
Denning, MR:
unauthorized occupation by gypsies, the House of Lords holding that the said Article is
If homeless ness were once admitted as a defence to trespass, no one's house could be safe.- not applicable whereas the European Court of Human Rights holding that it may be
So the court must, for the sake of law and order, take a firm stand. They must refuse to admit attracted if there is summary eviction without proper justiftcation and procedural
the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved
by the charitable and the good. 193
safeguards. Both these cases were discussed by the Court of Appeal in Leeds City Council v

This view must also prevail in India when the trespass is upon private property. But 195. Municipal Corporation Delhi v Gurnam f(aur, AIR 1989 SC 38: (1989) 1 SCC 10l.
will different considerations apply when the State complains of trespass for in the 196. Sodan Singh v New Delhi Municipal Committee, AIR 1989 se 1988 : (1989) 4 see 155.
context of Articles 21, 39 and 41 of the Constitution it has the duty, in cases of 197. Sodan Singh v New Delhi Municipal Committee, AIR 1989 se 1988, p 1996.
undeserved want, to give public assistance and to provide humane living conditions. 194 198. Sodan Singh v New Delhi Municipal Committee, AIR 1989 se 1988 : (1989) 4 sec 155.
The observations of the Supreme Court quoted above from Olga Tellis' case raise this 199. Sodan Singh v New Delhi Municipal Committee, AIR ]989 SC 1988, P 1997. See second and third
Sodan Singh cases relating to framing of scheme and allotment of sites to hawkers: (1992) 2 see 458
: AIR 1992 SC 1153 and AIR 1998 se 1174. See in the same context for scheme for Bombay
hawkers: Bombay Hawkers Union v Bombay Municipal Corporation, AIR 1985 SC 1204: lVlaharashtra
186. South Port Corporation v Esso Petroleum Co, (1952) 2 All ER 1204 (QBD) affirmed 1956 AC 218 (HL):
Ekta Hawkers Union v Municipal Corporation Greater Mumbai, AIR 2004 se 416 : (2004) 1 sec
"The necessity of saving life has at all times been considered a proper ground for inflicting such damage
625. See further, Arignar Anna Bus Stand Small SCALE Retail Trader's Association v Commissioner
as may be necessary upon another's property". (Devlin, J).
187. Maleverer 11 Spinke, (1537) Dyer, (Part I), 356. Madurai Corporation, AIR 1988 Madras 71, p 77 (An encroacher of public property cannot daim an
188. Rigby v Chief Constable, (1985) 2 All ER 985 (995): (1985) WLR 1242. alternative site as a precondition to his removal. "To do so would only mean placing a premium on
189. London Borough ofSouthwark v Williams, (1971) 2 All ER 175 (1971) 2 WLR 467: Mc Phail v Persons trespasser's encroachment on public property"); Grahak Sanstha Manch v Sttlte of Maharashtra, AIR
Unknown, (1973) 3 All ER 393 (CA). 1994 SC 2319 : JT 1994 (3) SC 474 (State Government cannot be compelled to provide alternative
190. Royal Hotel Ltd Re De Keyser's Royal Hotel Ltd v The King, (1919) 2 Ch. 197, (1920) AC 508. accommodation to allottees of requisitioned premises when the premises are derequisitioned): N
191. Bunnah Oil Co Ltd v Lord Advocate, (1965) AC 75 : (1964) 2 WLR 123l. Jagdisan v District Collector, AIR 1997 SC 1197 : (1997) 4 SCC 508 (Removal of bunks and kiosks
] 92. Olga Tellis v Bombay Municipal Corporation, (1985) 3 SCC 545, p 585. from medical institutions and from margins of important and busy roads was upheld): Ahmedabad
193. London Borough ofSouthwark v Williams, (1971) Ch 734, p 744 : (1971) 2 WLR 467: (1971) 2 All ER Municipal Corporation v Nawab Khan Gulab Khan, (1997) 1 SeALE 770 pp 776, 784 : AIR 1997
175: Me Phail v Persons Unknown, (1973) 3 All ER 393: (1973) Ch 447; Weir, Casebook on Tort, 5th SC 152: (1997) 11 sce 121 (It cannot be laid down that in evelY case the encroacher of public
Edn, p 337. property must be provided with alternative shelter before he is ejected).
194. See, text and footnote 101, See further, Upavas Evam Vikas Parishad v Friends Co-op. Housing 200. Ram Prasad Yadav v Chairman Port Trust; AIR 1989 se 1.306.
Society, 1995 (3) SeALE 604 p 606 ("Right to Shelter is a fundamental right which springs from 201. Harrow London Be v Qazi, (2003) 4 ER 461.
the right to residence assured in Article 19(1)e and right to life under Article 21"). 202. Connors v UK, (2004) 16 BHRC 639.

t
114 Law o/Torts Chapter V
Chapter V Iustification o/Torts 115

Price,203 and the court followed the decision of the House of Lords but granted leave to
seen to be ~oming upon land, the owner of such land may fence off and protect his
appeal so that the matter may be reconsidered by the House of Lords.
.It, a~d so tum It away, without responsible for the consequences,
The plaintiff let the shooting rights over his land to one C. A fire broke out on hiS neIghbour may be an owner of
land, and while the plaintiffs men were endeavouring to beat it out, the defendant, who may protect his land from a visitation of and tum away the pest being
212
was the gamekeeper of C, to prevent spreading of fire and damaging the sporting rights for the consequences to owners. The of a person to
of his master, set fire to strips of heather between the fire and a part of the shooting from
where there were some nesting pheasants of his master. The fire was extinguished by the
plaintiffs men. In an action of trespass against the defendant, it was held that the
defendant was not liable?04 which would otherwise have been
is a sudden accumulation of water
Third group of cases are concerned with action taken as a matter of necessity to assist
is not at actively to let it off on to
another person without his consent. For example, a man who seizes another and forcibly
drags him from the path of an oncoming vehicle thereby saving him from injmy or even that neighbour any compensation for \J.cLlHdV-,C, I 'Ie'" "'f"'
has been able to save his own property
death commits no wrong?05 Other examples are where medical treatment, which is in his
206 one's property must be reasonable i.e., to
best interests, is administered to a patient who is unable to give his consent or where a . fl'lct.-? 1-'i Bto 1(en gIass or spikes on a wall or a
207 to In
person of unsound mind is detained in a mental hospital which is in his best interest.
this principle not deadly implements
217
va 1tage - to trespassers.
5.12. Private Defence
that has ceased to
Every person has a right to defend his own person, property, or possession, .against an
unlawful harm. This right may even be exercised in respect of one's wife or husband, or
parent or child, or even a master or servant.
"When a man strikes at another within a distance capable of the latter being struck,
nature prompts the party struck to resist it, and he is justified in using such a degree of
£lOrce as WI'11 prevent a repetition,
.. ,,208 N orma11" y no verb a1 provocation . wh atever can
justifY a blow.,,209 The force employed must not be out of proportion to the apparent
urgency of the occasion,zlO The person acting on the defensive is entitled to use as much
force as he reasonably believes to be necessary. The test is whether the party's act was
such as he might reasonably, in the circumstances, think necessary for the prevention of
harm which he was not bound to suffer. The necessity must be proved,zll Injuries
received by an innocent third person from an act done in self-defence must be dealt with
as accidental harm caused from a lawful act.
Every person is entitled to protect his property. But he cannot for this purpose do
an act which is injurious to his neighbour. If, for instance, an extraordinary flood is

203. Leeds City Council v Price, (2005) 3 All ER 573 (CA).

204. Cope v Sharpe (No.2), (1912) 1 KB 496: 81 LJKB 346 : 106 LT 56.
212. rJ"!nn-le17 (1911) /l.C .355 : 80 L]pe '58: 104 360; Shanker v LaXmtUl, ILR (1938)
205. F v West Berkshire Health Authority, (1989) 2 All ER 545, p 564 : (1990) 2 AC 1 : (1989) 2 WLR 1025
(HL).
206. F v West Berkshire Health Authority, (1989) 2 All ER 545, pp 566, 567.
207. Boumewood Community and Mental Health Trust, (1998) 3 All ER 289, pp 301, 302 (HL). Lanca
z; Co, (1884) QSD 131 (140, 141): Mohola! u
208. Anonymous Case, 168 ER 1075 (Parke B.) Weir, Casebook on Tort, 5th Edn, p 329. 472 : 6 Born LR 529.
215. l! Blackburn, (1830) 4 C eel P 297.
209. Anderson v Marshall, (1835) 13 S 1130, Weir, Casebook on Tort, 5th Edn, p 329.
216. Bird v Holbrook, (1828) 4
210. Reece v Toylor, (1835) 4 N & M 469 Cockeroft v Smith, (1705) 11 Mod 43 (Holt Cn.
217. Cherubin : (1964) 4 SCR 199 : (1964) I Cr LJ 138;
211. Janson v Brown, (1807) 1 Camp 41; Wells v Head, (1831) 4 C & P 568. For example, see, Tounley v
Rushworth, (1963) 62 LGR 95, Weir, Casebook on Tort, 5th Edn, p 329; Collins v Renison, 96 ER 830, vM
(1836) 7
Weir, Casebook on Tort, 5th Edn, p 331; Whatford v Carty, The Times, 29 October 1960, Weir, Casebook
(947) AU ER 730 (CA).
on Tort, 5th Edn., p 332. See further, Debendra Bhoi v Meghu Bhoi, AIR 1986 Ori 226.
220. Turner v Jogmohtln Singh, (1905) ILR 27 All 531.
116 Law Chapter V
v 17

5.

unless some

5.

In National Coal Board v 1',m~JJLrUL224 Lord gave as to a

defence of ex causa may succeed and when it may not succeed. He observed:
toan illegal fight who is injured in the conflict cannot sue for assault. If
B, agree to open a safe by means of explosives, and A so negligently handles
charge as to injure B, B might find some difficulty in maintaining an action for
negligence A, But if A and B are proceeding to the premises which intend
burglariously to enter and before enter them B picks A's and steals his watch, I in water where B has the exclusive
cannot on myself to believe that A could not sue in tort. theft is totally unconnected A has tend to
with burglary.225 231
to fish in that water.
Court of Appeal laid down that "the
may be relevant in whether or not
applied."227 In that case the sold
and in so doing nrl!1""'Pr! a

the stamp duty, the

£5000 for the
When the F~ctUHH~~

the illegality of evasion of stamp

negatived this defence and the
had an unanswerable claim against the UClCIIUclHl
the defendant's own moral culpability greatly
the illegal in the contract was
cause of action in tort the loss suffered

When two persons are engaged in a joint illegal enterprise and the
inherent in its execution are such that it is impossible to appropriate
of care because the joint illegal purpose has standard of
care, one of them if in the course of that enterprise cannot claim compensation

221. Frederick Pollock, The Law a/Torts, 15th Edn, p 126, 228. jackson v Harrison, (1978) 138 CLR 438 Court of Australia), 455-456 (Mason J).
222. Barnes v Ward, (1850) 9 CB 392, (420): 14 Jur 334. 229, Pitts v Hunt, (1990) 3 All ER 344: (1991) 1 QB 24: (1990) 3 542 (CA). See, Gala v Preston,
223. Bird v Holbrook, (1828) 4 Bing 628. (1991) 65 ALJR 366 Coun of Australia) where a person because of the
224. National Coal Board v England, (1954) 1 All ER 546 : (1954) J All ER 546 (HL). of an associate in the criminal of III a car

225. National Coal Board v England, (1954) 1 All ER 546, P 548. and it was held [hat there no
226. Saunders v Edwards, (1987) 2 All ER 651 : (1987) 1 WLR 1166 : (1987) 131 S] 1039 (CA). 230, Illustration to section 26 of the Indian Civil Bill.
227. Saunders v Edwards, (1987) 2 All ER 651 P 660. 231. v Bailey, (1849) 1SL] QB 109.
 CHAPTER VI

DEATH IN RELATION TO TORTS

SYNOPSIS
6.1 Common Law ............................ 119 6.2.2 Indian Law.................... 121
6.2 Statutory Modifications ............. 120 6.3 Damages Recoverable ................ 125
6.2.1 English Law.................. 120 6.3.1 For Loss of Dependency. 125
6.3.2 For Benefit of the Estate. 146

6.1. Common Law

The common law maxim is actio personalis moritur cum persona (a personal right of
action dies with the person). At common law, if an injury were done either to the person
or propeny of anomer, for which damages only could be recovered in satisfaction, the
action died with the person to whom, or by whom, the wrong was done. lAs regards all
2
actions essentially based on tort, the principle was inflexibly applied. Prior to 1846 ie
before enactment of the Fatal Accidents Act, 1846 (English) actions for death of a human
being were not permitted even under the English law of torts. This was primarily for two
reasons, firstly, on account of the aforestated legal maxim, since a civil action dies with the
person, it could not survive even for benefit of the estate; and secondly, death of a human
being was not considered 'injury,.3 However, it is not known when this principle came
into being, for its genesis is hidden in the mists of antiquity. From time to time it had been
severely animadverted on by Judges for it is neither based upon justice nor common sense.
In Official Liquidator of Supreme Bank Ltd. v PA Tendolkar, the Supreme Court pointed
out mat the maxim was "an invention of English common lawyers" and observed:
It seemed to have resulted from the strong quasi-criminal character of the action for trespass.
Just like a prosecution for criminal offence, the action for trespass, which was the parent of
much of our modern law of tort was held, by applying this maxim, to be incapable of surviving
the death of the wrongdoer, and, in some cases, even of the party injured. The maxim, with its
extension, was criticised by Winfield and found to be pregnant with a good deal of more
4
mischief than was ever born of it.
The Supreme Court further pointed out that the maxim did not apply to actions
5
based in contract or where a tort-feasor's estate had benefited from a wrong-done. The

1. l':(Theatley v Lane, 1 William's Notes to Saunder's Rep, 216A.

2. Raymond v Fitch, (1835) 2 Cr M & R 588, (597); Pulling v Great Eastern Ry Co., (1882) 9 QBD 110;
United Collieries Ltd v Simpson, (1909) AC 383 (391); Chunilal v Secretary o/State; Secretary a/State v
Chunilal, (1910) 12 Born LR 769, 776 : (1911) ILR 35 Born 12; Oriental Insurance Co Ltd v
Bhagwatiben Rajubhai Parmar, (2010) 51 (3) GLR 2578.
3. Cox v Ergo Versicherung AG (formerly known as Victoria) [2014] UKSC 22.
4. OfficialLiquidator o/Supreme Bank Ltd. v PA Tendolkar, (1973) 1 SCC 602, p 615.
5. (1973) 1 SCC 602, pp 615, 616.

119

t
 VI Death in Relation to Torts 121
120 Law o/Torts Chapter VI

maxim has also no to suits for eviction under the Rent Control Acts 6 and to or omiSSIOn glvmg rise to cause of action, shall be without
to any loss or gain to his estate death, except that a sum in
industrial under sections 2A and 33C (2) of the Industrial Disputes 1947. 7
respect of funeral expenses may be included. The object the Act is to aboiish the
no one can recover the death of another. This is common law in the maxim actio moritur cum persona and to
v 8 "In a Civil Court, the death of a the survival of causes of action subsisting at the time of the death
\..U.!H'HdJlllCU of as an injmy" - meaning an actionable injury. A UUJV.H!\.l, or wrongdoer. The object is not to create a cause of action for death or
or master cannot recover in respect of instantaneous death of a wife, the common law recognised in case that no such cause of action exists.
lI
or servant. If there is an interval wrongful act and the The rule in Baker's case was overturned the Fatal Accidents Act, 1846, as
be recovered for loss of to the time of
Campbell's Act, for those dependants who were specified in the Act. The present Act is the
and wife were passengers on top of a ."~!>'C-Lll" Fatal Accidents consolidates the earlier Acts. The Act that
to the negligence of the the stage-coach person is caused by the wrongful act, neglect or
IJIJLIWlHl. was much bruised and was so such as would (if death had not ensued) entitled the injured person to sue
It was held that the was entitled to then the person have liable if death
wife's society only liable to an action on behalf of
But rule in Baker's case does not apply where the cause of notwithstanding the death of person list of OejDertOants
the breach of a contract. In an action for breach of a warmnPj that 16
enlarged since it was first defined and now includes the
the to the for consumption as human
former spouse of the deceased, or person who was in same
Udjllld~t:" on the having partaken of
immediately before the date of the death and had been so living for at least two years; (b)
and services for him in
any parent or other ascendant of the deceased or the as his
her of parent; (c) any or other descendant of the de.:eased
were the deceased as a of the
and (d) any who is, or is the issue of, a hw,,.h,~r
An person is to be treated as the child of the person
by affinity as one of consanguinity and a
relationship of the whole-blood. The step-child any
6.2.1 r.":<nz·,,,,, Law and an illegitimate person as legitimate child of his
'\"L'U~.HLc Act a new cause of action in
U".lH.''''U''~lt<CU from continuation or survival of a cause of action \cA.lOLlU~
benefit of his estate as is the Law
1934. Under Act in respect of death after
nor any income in of spouse of the deceased or parents of the deceased if he was an
person is caused act claim a for In are

6. Lal Lala, AIR 1976 se 2358: (1976) 4 see 417;

1133, p 1136: (1990) see 431. See further, Naseeban v 6.2.2 Law
7. AIR 1994Se 1176: (1994) ! SCC292. an Act
8. Baker v Bolton, Ad,m,,,~/h, CiHnm.issioners v SSAmerik!l, (1917) AC 38: 116 LT 34: 33
TLR 135.
was 855. It
9. Per Lord in Baker v Bolton, (1808) 1 was moritur cum
10. Clark /J London General Omnibus Co. Ltd., (1906) 2 KB ClI.!J<C\.UClll to
1]. Osborn v Gillett. (1873) 8 ex 88 : 42 LJ Ex 53 : 28 LT 197.
]2. Jackson v Watson &Sons, (1909) 2 KB 193: 100 LT 799.
13. 24 & 25 Geo. V., c. 41, section 1(1). 15. Section 1(2) of24 & 25 Geo. V., C. 41, as amended by The Administration of Justice Act, 1982.
14. Other causes of action seduction, one spouse to leave or remain apart from the other, and 16. The Administration ofJustice Act, 1982.
claim for for were also excluded from the of the Act, but these 17. Admiralty Commissioners v SS Amerika, 1917 AC 38 (52) : 116 LT 34: 33 TLR 35; Davies v Powell
Law Reform (Miscellaneous Provisions) 1970. Sankunni DujJeryn, Associated Collieries Ltd, (1942) AC 602 : 167 LT 74 : (1942) 1 All ER 657; CK Subramania
Geopakmkuttv Nt/ir, (986) I sec 118 (120): AIR 1986 Faulk's lyer v T. Kunhikuttan Nair. AIR 1970 SC 376, (378) : (1969) 3 sce 64.
Committee recommended the survival of cause of action for defamation the 18. Onder the Damages for Bereavement (Variation of Sum) order 1990, the amount awardable for
estate of the deceased in the normal way. See, Winfield & Tort, 12th Edn, (1984), p 658. bereavement has been increased to £7,500.
122 Law of Torts Chapter VI Chapter VI Death in Relation to Torts 123

executors, administrators or representatives in certain cases to sue and be sued in respect The controversy was finally resolved by the Supreme Court in M Veerappa v Evelyn
of certain wrongs which, according to the present law, do not survive to or against such Sequeira,28 by approving the view of the Madras High Court and overruling of the
executors, administrators or representatives". The Act then proceeds to provide for Calcutta and Rangoon High Courts. So the settled view now is that the expression
actions by the representative of a deceased person, and actions against the representative "'personal injuries" does not mean injuries to the body alone but all injuries to a person
of a deceased person. other [han those which cause death and the expression is to be read ejusdem generis with
Under Act XII of 1855 an action may be maintained by the executors, administrators the words "defamation" and "assault" and not with "assault" alone,,?9 So the right of a
or representatives of a deceased person for any wrong committed in the lifetime of the father to sue for compensation for the seduction of his daughter is a personal right and
deceased which has occasioned pecuniary foss to the estate of such person (and for no other dies with the father. If a suit is filed by the father, it abates on his death and no legal
3D
wrong), committed within one year before his death. representative can continue it. However, so far as claim cases the Motor Vehicles
Act are concerned, the legal representatives can continue the same for claiming
Then came the Indian Succession Act, 1865, and the Probate and Administration Act,
compensation towards 'loss of estate', which is not in the exceptions of section 306 of
1881. Both these Acts contained a section which is now reproduced as section 306 of 31
Indian Succession Act, 1865. The rule actio personalis moritur cum persona is not
the Indian Succession Act, 1925. The material portion of that section is as follows:-
interfered with merely because the person injured incurred in his lifetime some
"306. All demands whatsoever and all rights to prosecute or defend any action or special expenditure of money in consequence of the personal injury.32 The Supreme Court in
proceeding existing in fovour of or against a person at the time of his decease survive to and
Official Liquidator, Supreme Bank Ltd v PA Tendolkar,33 pointed out that the application
against his executors or administrators; except causes of action for defamation, assault, as
defined in the Indian Penal Code, 1860 or other personal injuries not causing the death of the of the maxim was generally confined to actions for damages for defamation, seduction,
party... " inducing spouse to remain apart from the other and adultery and that it had no
application to actions based on contract or where a trespasser's estate had benefited.from
The Calcutta High Court held that the words "personal injuries" in the above quoted
a wrong done. It was also pointed out that there was no reason to extend the maxIm to
provision refer only to physical injuries. A cause of action for malicious prosecution, cases involving breaches of fiduciary duties or to the case of a Director whose personal
therefore, survived to the representatives of a deceased plaintiff. 19 The Rangoon conduct had been fully enquired into and the only question for determination, on an
Court has adopted the same meaning of the words 'personal injuries.' They meant 34
appeal, was the extent of the liability incurred by the deceased Director. In M Veerappa
corporal or bodily injuries, injuries to person as opposed to injuries to property or
v Evelyn Sequeria,35 also the Supreme Court pointed out that the maxin: is inapplicab~e
reputation. A cause of action in respect of injury to the credit and reputation of a person
in those cases where the injury caused to the deceased person has tangIbly affected hiS
survived against the executors and administrators of the estate of the deceased defendant
estate or has caused an accretion to the estate of the wrongdoer or where the cause of
but not against his heirs as the latter term is not included in the former under section
2o action arises out of breach of contract. Also the maxim has no application when the
306 of the Indian Succession Act. On the other hand the Madras High Court has, by
claim is decreed and the plaintiff dies pending an appeal against the decree. The reason
its Full Bench decision, laid down that the expression "personal injuries not causing the
is that the claim becomes merged into the decree and the decretal debt forms part of the
death of the party" does not mean injuries to the body merely, but all injuries which do 36
plaintiff's estate devolving on his death on his heirs, executors or administrators. For
not necessarily cause damage to the estate of the person wronged. A suit for malicious
example, if a suit for defamation is decreed and the plaintiff dies pending an appeal
prosecution, therefore, abated on the death of the defendant?! The Patna,22 the
against the decree, the suit will not abate but if the suit is dismissed and the plaintiff dies
Bombay,23 the Allahabad,24 the Nagpur,25 the Madhya Pradesh 26 and the Andhra
27
Pradesh High Courts have adopted the view of the Madras High Court.
28. M Veerappa v Evelyn Sequeira. AIR 1988 SC 506 : (1988) 1 SCC 556 : (1988) 1 KLT 450; See also,
New India Assurance Co Ltd v S.Pooranam, (201l) 2 Mad LJ 659 : (201l) 1 TN MAC 826 : (201l) 3
LW 879; Manoharan v Mana!(inf[ Director, Tamil Nadu State Transport Corporation, Dharmapuri, (20 10) 2
19. Krishna Behari Sen v The Corporation of Calcutta, (1904) ILR 31 Cal 993; Bhupendra Narayan Sinha v TN lYfAC 243: (2010) 6 Mad L] 406
Chandramoni Gupta, (1926) ILR 53 Cal 987, 990; Pashu Pati Datta v Kelvin Jute Mills, ILR (1937) 2 29. AIR 1988 SC 506 : (1988) 1 SCC 556: (1988) 1 KLT 450.
Cal 518. 30. Baboo v Subanshi, ILR (1942) Nag 650. An appeal from a dismissal of a suit brought to recover costs
20. DKCassim & Sons v Sara Bibi, (1935) ILR 13 Ran 385. incurred in a prosecution for defamation abates on the death of the appellant: AJ.)'a Ramaswamy Naicker
21. Rustomji Dorabji v Nurse, (1920) ILR 44 Mad 357 (FB); Murugappa Chettiar v Ponnusami Pillai, v Manicka Naiker, (1944) 57 Mad LW 320.
(1921) ILR 44 Mad 828; Palaniappa Chettiar v Rajah ofRamnad, (1925) ILR 49 Mad 208. The last 31. Narinder Kaur v State ofHP 1991 ACJ 767; Bhagwati Bai v Bablu 2007 ACJ 682; Smt Jyotsna Bis:vas v
case further held that Act XII of 1855 does not enable the legal representatives to continue the suit to Dr Subal Devnath (MAC App NoAO/2004) Decided 27 June 2013 (SB) Deepak Gupta CJ., Tnpura
recover the costs as loss caused to the estate. High Court.
22. Punjab Singh v Ramautar Singh, (1919) 4 PL] 676. 32. Josiam Tiruvengadachariar v Sawmi Iyengar, (1910) ILR 34 Mad 76.
23. Motilal v Harnllrayan, (1923) 25 Born LR 435, ILR 47 Born 716. 33. Official Liquidator, Supreme Bank Ltd v PA Tendolkar, (1973) 1 SCC 602 (615, 616) : AIR 1973 SC
24. Mahtab Singh v Hub Lal, (1926) ILR 48 All 630. 1104. See further, Court of Wards Mu:wffornagar v AjodhYIl Prasad, ILR (1938) All 306.
25. Maniramlala v Mst Chattibai, AIR 1937 Nag 216. 34. (1973) 1 SCC 602 (616) : AIR 1973 SC 1104.
26. Ratanlal v Baboolal, AIR 1960 MP 200. 35. M Veerappa v Evelyn Sequeria, AIR 1988 SC 506, pp 510, 512 : (1988) 1 SCC 556.
27. G Jaya Prakash v State, AIR 1977 AP 20. 36. M Veerappa v Evelyn Sequeria, AIR 1988 SC 506, P 510.

t
 124 Law VI Death in Relation to
125

The Indian counterpart of Lord Fatal 1855.41

Section lA of the Act that "l;vtlPt'IPVPr

of

and in the name of

The mentioned
,'Pt1rP'Pfn::lnV,p, for purposes of the Act.
42 A

'_iGCC"'Hc mentioned in section lA can also sue under section for the
are mentioned 43 Section 2 of the Act
and in respect of the same
to section enables the of
insert m the action a claim for any or of some person for
maintain an action under
37. iVU'/.etJium.ttJ Sankunni E,:;huthtlSSan v The/duil Ge,7pa.tan/(utty Nair, (1986) 1 SCC 118 (121) : AIR 1986
44. Kemla State Road Trivtmdmm v Mrs Susamma Thomas, AIR 1994 SC
2 SCC 176.
38. Abbas 1J Harichcmd, AIR 1980 All 259; v Ramchandra, (1902) ILR 26 Bom 597; Param
,JUiZMiraza Naick, (1903) ILR 26 Mad AIR 1949 63, 45. v UO!, AIR 1990 SC 1480 : (1990) 1 SCC 613.
39. Klaus v The East India Hotels Ltd AIR 1997 Del 20], p. 231 (Lahoti J). 46. 236, text and footnotes 225-231, and Kerala State Road Transport v
40. Klaus Mittelbachert v The East India Hotels Ltd, AIR 1997 Del 201, pp 229, 230. Thomas, AIR 1994 SC 1631, p. 1632: 2 SCC 176. In Susammas case (p 1637) the
41. In SubCl v Dalvinder Kaur, (2011) 13 SCC 296, the Supreme Court has termed the Fatal Court has also laid down the High Court for the
Accidents Act, 1855 to be old and It has that the Act either be amended nrotecl'ion that the compensation awarded be in
or a fresh itself be for a better scale
disasters. 47, See, text and note
42. Esther (1934) ILR 61 Cal 480; Goolbai 48. Lommzsstoners v (1917) AC 38 (52) : 116 LT 34: 33 TLR 135; Davies 1J Powell
AIR 1935 Bom 333.
43. 1985 P&H 329 (FB); SmtAnita Ram v £1s:rOctarea Collieries Ltd, (1942) AC 601 : (1942) 1 All ER 657; CK Subramania lyer v TK
AIR 1988 P&H 141. 1970 SC 376 (378).
126 Law of Torts Chapter V1 ChapterV1 Death in Relation to Torts 127

spite of the fact that the defendant's fault caused the injury, the deceased, had death not The damages are given in reference to a pecuniary they are not given as a
solatium, t~at is to say, for injured feelings. There is no question here of what may be
61
ensued, could not have sued for example when any possibility of liability had been
excluded by a valid contract between them,49 the dependants will not get any cause of called sentImental damage, bereavement or pain and suffering. It is a hard matter of
action under the Acts. Further, if the deceased himself was partly responsible for the pounds, shillings and pence, subject to the element of reasonable future probabilities. 62
accident because he too was negligent, the damages recoverable by the dependants will The .common law has never awarded damages for the pain of bereavement. 63 The
be proportionately reduced. 50 EnglIsh Act, however, as amended in 1982, now provides for a claim for bereavement to
The Acts do not provide the principle on which damages are to be assessed. The the ext~nt of £7,500, (a) fo~ the benefit of the wife or husband of the deceased; and (b)
English Act merely says that "damages may be awarded as are proportioned to the injury :"here the d~c~ased was a .~lllor .who was never married, for the benefit (i) of his parents,
resulting from the death to the dependants respectively."Sl The Indian Act similarly says
If he was legltlmate and (11) of hIS mother if he was illegitimate. The Indian Act contains
no parallel provision of this nature. But Indian cases have generally granted damages for
that "the court may give such damages as it may think proportioned to the loss resulting 64
loss of consortium. Further development of the common law also allows a person to
from such death to respectively.,,52 There is, however, a distinction between
recover dau::ages for n~rvous shock ie, positive psychiatric illness suffered by him as a
payment of compensation the Fatal Accidents Acts and under the Motor Vehicles
result of seemg or heanng of the death of or injuries caused to his close relative such as
Act. Section 168 of the Motor Vehicles Act, 1988 stipulates that compensation " ... which
appears to be just... " should be awarded. This is different from award of damages under par~nt or child, husband or wife in exceptional circumstances,65 but this is not on the
baSIS of the Acts. Horror and fear for oneself or for others are emotions which can no
the Fatal Accidents Act, wherein damages are proportionate to the loss suffered by the
dependants. English law and Courts calculate 'damages' proportionate to the loss, while doubt .be descri~ed as suffer~ng .b~t ~hey do not sound in damages. It is only when they
53 result III recogmsable psychlatnc IllJUry that an action lays for such injury not for the
in India it is compensation which is just. The principle for assessment damages upon
fear or horror. T~us,. a mother daiu::ing damages as dependant and legal representative
66
which these Acts are silent was formulated by Pollock CB, according to which damages are
assessed "in reference to a reasonable expectation of pecuniary benefit as of right or otherwise of her son who dIed III a motor aCCldent which was not witnessed by her cannot be
allowed damages for mental shock, agony or pain not resulting in any recognizable
from the continuance oflife".54 It is this basic principle which, expanded into various rules,55
psychiatric illness. 67
and is followed even now in assessing damages. The dependants for whose benefit the right
exists should show some appreciable pecuniaty damage at the time or prospective to It is not necessary for a claim to succeed under the Acts that the deceased should have
56
themselves owing to the death of the deceased. Speaking generally, no action can be been earning money or moneys worth or contributing to the support of the plaintiff at
57 or before the date of death provided that the plaintiff had a reasonable expectation of
maintained for any pain or suffering arising from the loss of the deceased or loss of society58
or if the deceased had accepted satisfaction for his injuries in his lifetime,59 or if the loss arises
60
not from the relationship, but through some contract with the deceased.
61. Taffvale Railway Company v Jenkins, (1913) AC 1 : 107 LT 564: Barnett v Cohen, (1921) 2 KB
4~1 : 125 LT 733: CK Subramania Iyer v T Kunhikuttan Nari, AIR 1970 SC 376 (379). Some
49. Haigh v Royal Mail Steam Packet Co Ltd, (1883) 52 LJ QB 640. HI~h Courts have, it is submitted, wrongly allowed compensation for mental agony and injured
50. Section 5, Fatal Accidents Act, 1976, read with the Law Reform (Contributory Negligence) Act, 1945. feelmgs of sons, daughters and parents of the deceased: JR Daniel v T Vaithuswaran, AIR 1989
There are no corresponding statutory provisions in India but similar view has been taken on general Mad 5: New India Insurance Ltd v Smt. Sarda Devi, AIR 1989 Pat 203, p 209: Bhanwarlal v
principles, Vidya Devi v MP State Road Transport Corporation, 1974 ACJ 374 : 1974 MPL] 573 : AIR Hartlal, AIR ~994 MP 10, P 13: Smt Sitabai v M Rajya Parivahan Nigam, AIR 1994 MP 34.
1975 MP 89. Onssa High Court has however correctly not allowed solatium to parents Kumodini Das v Baliar
51. Section 3(1), Fatal Accidents Act, 1976. Singh, AIR 1996 Ori 32.
52. Section lA, Fatal Accidents Act, 1855. See also, Suba Singh v Davinder Kaur, (2011) 13 SCC 296: 62. Davies v Powell Duffryn Associated Collieries Ltd, [1942J AC 601 p 617 : 167 74 : 58 TLR 240 (Lord
Charan Lal Sahu v UOl, (1990) 1 SCC 613. Wnght): Municipal Corporation of Delhi v Subhagwanti, AIR 1966 SC 1750 (1754): N Sivammal v
53. Puttamma v KLNarayana Reddy (2013) 15 SCC 45: AIR 2014 SC 706. Managing Director Pandian Roadways Corporation, AIR 1985 SC 106: (1985) 1 SCC 18.
54. Franklin v SE Ry, (1858) 3 H & N 211, p. 213-214: CK Subramania Iyer v T Kunhikuttan Nair, AIR
63. Hicks v Chief Constable of the South Yorkshire Police, (1992) 2 All ER 65 (HL), p 67. See further, text
1970 SC 376 (378) : (1969) 3 SCC 64. and footnotes 205 and 206, p 147.
55. See, pp 125-131. 64. f!ardeo Kaur v Rajasthan State Transport Corporation, AIR 1992 SC 1261, P 1263 (para 9) : (1992) 2
56. Taffoale Ry v Jenkins, (1913) AC 1 : 29 TLR 19: Barnett v Cohen, (1921) 2 KB 461 : 125 LT 733: 37
TLR 629: CK Subramania Iyer v T Kunhikuttan Nair, AIR 1970 SC 376 (377). SCC 567: Natzonal Insurance Co Ltd v Swarnlata Das, AIR 1993 SC 1259, P 1261 (Para 6:
57. Duckworth v Johnson, (1860) 4 H & N 653, P 659.
conventional amount of Rs. 7,500 allowed): General Manager, Kerala State Road Transport Corporation
58. Blake v MidlandRy Co, (1852) 18 QB 93: Ratilal Kalidas v Madras Railway Co, (1904) 4 MLT 238. v Mrs Susamma Thomas, AIR 1994 SC 1631, p. 1636: (1994) 2 SCC 176 (para 13: conventional sum
59. Read v GE Ry, (1868) LR 3 QB 555: Jameson v Central Electricity Generating Board, (1999) 1 All ER 193, p. of Rs 15,000), Fizabai v Nemichand, AIR 1993 MP 79, P 86; DD Upadhyaya v UP Road Transport
201,202 (HL) (settlement by rhe deceased for rhe whole amount of rhe loss from a concurrent tott-feasor). Corp, AIR 1993 Dd57, P 62.
60. Burgess v Florance Nightingale Hospital for Gentlewomen, (1955) 1 QB 349 : (1955) 1 All ER 511, P 515 65. Mdaughlin.v O'Brian, (1982) 2 All ER 298 (HL). See further, Chapter IX title 9.1.4.5, p 230.
(Devlin, J) (Death of wife who was a dancing partner. Loss in business from loss of wife as a dancing 66. Hicks v ChtefConstable of the South Yorkshire Police, (1992) 1 All ER 690 (CA) 693 : (1992) 2 All ER
partner not recoverable). See Cox v Hokerhull, (1999) 3 All ER 577, pp 583, 584 (CA) (Death of 65 (HL), P 69.
invalid wife. Loss of invalid care allowance paid by the State to the husband for caring the wife not 67. Jhulan Rani Saha (Smt) v The National Insurance, AIR 1994 Gau 41. See further Suki v Hem Singh
recoverable). AIR 1994 Raj 101. "
128 Law Chapter VI
Chapter VI Death in Relation to Torts 129
68
service or pecuniary the continuance of life. So, farents were 73
69 7 damages can be claimed. The dependants can
to claim damages when their aged 16 or son aged 19 was on the date of
of t~e deceased even though they do not engage any for
death on the eve of com pie tin?" successfully an apprenticeship or a course training and
servIces and the same themselves or even though some
there was reasonable prospect of pecuniary benefit from the deceased for of 74
family in the near future. But although as a rule parents are to recover gratuitously perform those services. Similarly, services of an 'owner
the present cash value the prospective service or pecuniary benefIt from the deceased,
manager' of family lands or business, such as the ror awar d of damages
J:

no damages at aU may be allowed when that is very eg, when even when entire lands or the business remain after with the dependanrs.75
deceased was a aged four of poor or nominal damages may be In assessing the value of such services to the dependants an estimate is made of the
when the prospect is there but the nature and quality of assistance is uncertain eg, expenses required for engaging a paid who would extra care th
f;' . h' ' e owner L

the deceased was a bright years, a sum of Rs 5,000 was allowed to or lllcreasmg t e Income and the value propertly, and a deduction is m d f
h" f h a e rom
t IS estimate 0 t e money the deceased would have spent for 76
his parents as damages.72 It is also not necessary that the deceased have
rendering pecuniary assistance, or there may be prospect of pecuniary assistance, and Damages are not to the deprivation of the amount the deceased
rendering of gratuitous domestic service or a reasonable prospect of that service in would have spent from his earnings on the will cover deprivation of
will enable the family members to lay a claim under the Acts for the cash value of a to the deceased emplover
prospective service from the For the ~uch as a Contributor! Provident Fund. 77 In assessing
rendered by a wife or mother in the home are \CUU!1ld"~! mcome of the deceased be taken to cover, besides
by which
68. Taffiale Railway Company v Jenkins, (1913) AC 1 : 107 LT 564; CK Subramania Iyer v TK Nari, AlR of quantum and assessment of ~V.'UfJU'0d.UUH
1970 SC 376 (378); Lata Wadhwa v State ofBihar, 2001 ACJ 1735 (SC) 1745: AIR 2001 SC 3218 Court in Delhi Board v Narional
(mere speculative possibility of benefit is not sufficient. Question there exists a reasonable and
expectation of pecuniary advantage is always a mixed question of fact and law); MS Grewal v /Je,eIJC,r,ar,!d assessment of
Sood, AIR 2001 SC 3660 P 3664; Corporation of Greater Bombay v Laxman (2003) 8 and ready
SCC 731, pp 738, 739. every case, the
69. Taffiale Railway Company v Kenkins, (1913) AC 1 : 107 LT 564; Smt Kdushalya Devi v Bholaram, (1995) 5 (1pnpntipn' upon its own situation and award of U.<tHl,"~I:' cannot be
Scale 195 (College going daughter aged 16 student of pre-medical class. Rs.llakh allowed to
70. Ramesh Chandra v Madhya Pradesh State Road Transport Corporation, 1982 (428). See
further, Oriental Insurance Co Ltd v Sivan, AIR 1990 Kerala 202; Sri Bantu v Sri Annappa, AIR 1996 assessment of damages to
Kant 33. the nature of things, it
7i. Bamettv Cohen, (1921) 2 KB 421: 125 LT 733. of
72. eJ( Subramania ~yer v T Kunhikuttan Nair, AIR 1970 SC 376 : (1969) 3 SCC 64. Smt Bimala Devi
v National Insurance Co Ltd, AIR 1989 P&H 174 (FB) (Having regard to inflation Rs 10,000 may
now be allowed in similar cases). But, see, v SAR. Annama/ai, AIR 1990 Mad. 201. In
Smt Kumari v State Nadu, AIR 1992 SC : (1992) 2 SCC 223, a child aged six years
had died due to in uncovered sewerage and Rs 50,000 with 12% interest was allowed as
compensation to the without giving any reasons. In Lata Wadhwa v State 2001 AC]
1735 p 1745 : AIR 2001 SC 3218, where a number of persons, died in a fire 73. Berry v Humm, (1915) 1 KB 627; Manoharlal Sobha Ram v
accident in a function organised by the Tata Iron and Steel Company Pradesh Electricity Board, 1975 ACJ
parents of children in the group of 5 and 10 were allowed Rs parents of 494 (496, 49~) (MP); Sptttle v (988) 3 All ER 1031 : (1988) 1 WLR 847; Ldr DD
children in the age and 15 years Rs In addition, in each case Upodhyaya v UP State Road Transport
B.h AIR 1993 Delhi . "~7 p "4,v, wau,J'h !Va v StCite
La ta IV,
Rs 50,000 were as conventional amount towards benefit of the estate. The tar, 2001 ACJ 1735 (SC) p 1744 (value of services rendered a hOll~ewife estimated at Rs
per annum) : AlR 2001 SC 3218.
compensatory were assessed to the environment from which the children were
74. Spittle Z1. , 09_88) 3 All ER 1031 (CA) : 1 WLR 847; NGUYEN v NGUYEN, (1990) 64 ALJ
brought, their parents officers ofTISCO and the in TISCO to
give employment to one In MS Grewal v Deepchand AIR 200l SC 3660, ~22 ~l~h Coun ot Australia). For calculation of in case of loss of services of mother to infants
P 3672 : (2001) 8 SCC lSI the court's award of Rs 5 lacs to of each child who died ee, or ett v Havering and Brentwood Health (1991) I All ER 498 : (1991) 2 408
due to drowning in a picnic because of of school not (CAl; (1991) 1 All ER 529 (1992)
75. Dahiben v AIR 1982 Gujarat 188; Sahai v State
excessive. New India Assurance Co Ltd v 2007 SC 324 : (2006) 13 of a 154
child aged nine years in a motor accident. Rs 1,80,000/- allowed. Lata Wadhwa's case followed); (All); Automobile (Rajasthan) P Ltd v Dewalal, AIR 1977
Oriental Insurance Co Ltd v AIR 2008 SC 103 : (2007) 11 SCC 512 (Death of a child AIR 1979 Kant 106; v Hussain Khan, 1985 ACJ 44 (MP), Uo.nctatJatz
AIR 1989 AP 227.
of 7 years Rs. 51,500/- was Lata Wadhwa's case referred). Bhanoti Bhuri Bai v APResidential
76. Dahiben v OJitrabhai, AIR 1982 188.
Educational Institutional AIR 2012 AP 99 Lata Wadhwa's case and MSGerwal's
77. Sing~pore Bus Service (1978) Ltd v Soon (1985) 3 All ER 437 (PC).
case, compensation was for death of a school was beaten 78. NatlOn:lInsurance Co. Ltd. v Indira Srivastava,
residential school. The school rmmagernelll and society were held liable for np,,1 ;o,pncp 2 SCC 763 paras 10 and 19 : AIR 2008 SC 845.
in not taking steps to prevent the
79.
f~~/5~~.Board v NatIOnal for Dignity and Rights afSewerage and Allied Workers, (2011) 8
 Chapter VI Chapter VI Death in Relation to Torts
130 Law o/Torts 131

The object in assessment of damages is to find out the capita! sum required to purchase an
life expectancy, the chances that the deceased might have got ~etter employment or
annuity for an amount equal to the annual value of the benefits with which the deceased had
income or might have lost his employment or income altogether.. The House ~f Lords provided his dependants while he lived and for such as it could reasonably be estimated
has formulated certain rules for guidance of courts and to canallse the speculatlon and that they would have cominued to enjoy them but for death. Such a capital sum is
uncertainry involved in the assessment of th~ fin~l ~gure Ito be aw~rded to the expressed as the product of multiplying an annual sum represents the dependency by a
dependants. In Davies v Powell Duffryn Associatea Collterzes Ltd' Lord Wnght expressed number of 'years' purchase. This latter figure is less than the number of years which represents
the period for which it is estimated that the dependants would have continued to enjoy the
the rule in these words: benefit of the dependency, since the capital sum will not be exhausted until the end of that
period and in the meantime so much of it as is not yet exhausted in each year will earn interest
The starting point is the amount of wages which the deceased was earning, ~he ascertain:nent
from which the dependency for that period could in part be met. The House of Lords in
of which to some extent may depend on the regularity of his employment. r~e~ there IS an
Cookson v Know/es,93 made one modification. The modification is that the damages should be
estimate of how much was required or expended for his own personal and hvmg expenses.
The balance will give a datum or basic figure which will generally be turned mto a lump s~m split into two parts: (a) the pecuniary loss estimated to be sustained by the dependants from the
by taking a number of years' purchase. That sum, however, has to be taxed down by havmg date of death until the date of trial and (b) the pecuniary loss which the dependants would
sustain from the trial onwards. This course has been suggested having regard to the practice of
regard to the uncertainties.
frequent wage increase due to inflation. In other words, annual dependency at the trial should be
Similar method was advocated by Lord Sumner in Nance v British Columbia Elect/if fixed having regard to the increase in wages up to that dare and damages up to that date should
be calculated. The annual dependency so determined has further to be used for calculating post
Rat'jway Co. LtrP and by the Supreme Court in.fl"Gobald Motor Service v Veluswamt I T trial damages without taking into account the change in dependency due to inflation on the
Municipal Corporation of Delhi v Subhagwantz 4 and C~ Subrama~za yer. v reasoning that the valuation of the annuity is made on the basis of low interest rates such as 4 to
Kunhikuttan Nair85 In practice, however, the final figure IS not arnve~ .at ill the 5% and this involves a higher number of years' purchase. The capital sum so worked our is
aforementioned two stages. After settling the figure of annual depend~n~y, It IS usu~l to much more than what it would be at the current rate of interest and this counterbalances for
multiply it with a multiplier, the number of years: purc?ase; the multlphe.f selected IS .50 future inflation. 94
reduced that it in itself takes into account all considerations for the reductlOn of the sum The multiplier has to be selected once for all as at the date of death, because
to be awarded. 86 In cases where the annual dependency is likely to vary in fmure, one everything that might have happened to the deceased after that date remains uncertain. 95
method is to the figure of present annual dependency intact and to alter. up or Thus if 11 is the multiplier selected, with reference to the date of death and if the trial
down the multiplier; another method is to settle the figu~e ?f an8~ual ~epend~ncy 1Il such ends 2Y2 years after that date, 21;1 is to be used for pretrial damages, and 81;1 for
a manner that it also represents anticipated future ~~natlOlls. Thls pract~c;9 met , 96
calculating post trial damages. The considerations generally relevant in the selection of
approval of House of Lords in Mallet v McMonagle and subsequent cas~~. ~allet s multiplier and multiplicand were adverted to by Lord Diplock in his speech in Mallet's
case was cited with approval by the Supreme Court in MPSRT. Corporatwn v
Sudhakar90 and in General Manager Kerala State Road Transpo~t Corpora~~on v Mrs 93. Cookson v Knowles, (1978) 2 All ER 604.
Susamma Thomas. 91 A Division Bench of the Madhya Pradesh High Court summed 94. State v Devi Rawat AIR 1981 MP 173, pp. 176, 177. (GP Singh, C.].) See further, Kamala Devi v
up the legal position as settled by these cases as follows: Kishan Chand, AIR 1970 MP 168; Chaurasia & Co. Chhatarpur v Pramila Rao, AIR 1975 MP 31;
Laxman Singh v Gurmeet Kaur, 1979 ACJ 170 (Punjab & Haryana FB); APSRTC v Narsavva, AIR
1987 AP 127 (FB); Orissa Road Transport Company Ltd v RK Das, AIR 1990 Ori 74 (FB). HT
Bhandary v Maniyamma, ILR (1985) 2 Kant 2337. The adoption of the current rate of interest for
80. General Manager Kerala Road Transport Corporation v Mrs. Susamma Thomas, AIR 1994 SC 1631, P
1633 (para 7) : (1994) 2 SCC 176. determining the present value of future annual dependency has generally not been followed,
(Bhagwandas v Mohd Arif, AIR 1988 AP 99, p. 104, and cases mentioned in para 14 at that page);
8l. Davies v Powell Duffryn Associated Collieries Ltd, (1942) AC 601 (617) : (1942) 1 All ER 647. 44
bur a Full Bench of the Orissa High Court does not reject this method and leaves it open to be
82. Nance v British Columbia Electric Railway Co. Ltd (1951) AC 600 (614-617) : (1951) 2 All ER 8.
applied in appropriate cases (Orissa Road Transport Company Ltd. v RK Das, AIR 1990 Ori 74 (FB);
83. Gobald Motor Service v Veluswami, AIR 1962 SC 1 : (1962) 1 SCR 929.
see, the dissenting judgment of Rath ].). Bijoy Kumar Dugar v Bidyadhar Dutta, (2006) 3 SCC 242
84. Municipal Corporation olDelhi v Subhagwanti, AIR 1966 SC 1750: (1966) 3 SCR 649.
para 8 : AIR 2006 SC 1255 (dependency of parents aged 45, 50 multiplier of 12 applied;); UP State
85. CK Subramania Iyer v T Kunhikuttt1i1 Nair, AIR 1970 SC 376: (1969) 3 SCC 64.
Road Transport Corporation v Krishna Bala, (2006) 6 SCC 249 (Susamma followed. Reliance is also
86. Mayne and Mcgregor on Damages, 14th Edn, pp 877, 888, 889; Kamla Devi v Kishan Chand, AIR 1970
MP 168 : 1970 ACJ 310 (314). placed in Lord Diploelc's speech in Mallet v Me. Mongale and Halsburys. It is stated that the
multiplier should be fixed looking to the prevalent banking rate of interest. That does not appear to
87. Mayne and.McGregor on Damages, 14th Edn, pp 877, 888, 889.
be correct. To counter inflation multiplier is selected at low interest rate of 4 to 5%. This is
88. Mallet v McMonagle, (1970) AC 166. - 6 4
indicated both in Lord Diplock's speech and HalsblllYs approvingly quoted in the case.); Syed
89. Taylor v O'Connor, (1971) AC 115 : (1970) 1 All ER 365; Cookson v Knowles, (1978) 2 All ER 0 :
(1979) AC 556 (HL); Graham v Dodds, (1983) 2 All ER 953: (1983) 1 WLR 808 (HL). Basheer Ahamed v Mohamed Jameel, (2009) 2 SCC 225 : AIR 2009 SC 1219; Mohan Singh v Kashi
Bai, (2009) 4 SCC 507 : AIR 2009 SC 2006 (deceased aged 35. Claim under section 166 MY Act
90. MPSRT. Corporation v Sudhakar, AIR 1977 SC 1189.
and not under section 163A of the Act but taking analogy from Sch II of the Act multiplier of 17
91. General Manager Kerala State Road Transport Corporation v Mrs Susam.ma ~homas,. AIR 1994 SC applied. SC declined to interfere).
1631, pp 1634, 1635 (multiplier method more scientific). Same View III .NatlOnal Insurance
Corporation v Swarnlata Das, AIR 1993 SC 1259, P 1261 : 1993 Supp (2) SCC_743; TN S~te 95. Cookson v Knowles (1978) 2 All ER 604 (614-615) : (1979) AC 556 (HL); Graham v Dodds, (1983) 2
Transport Corpn. Ltd. v S Rajapriya, (2005) 6 SCC 236, pp. 241, 242 : AIR 200) SC 2985. ee All ER 953 : (1983) 1 WLR 808 (HL). See further, Managing Director TNSTC Ltd v Kl Bindu, (2005)
8 SCC 473, pp 479, 480 : AIR 2005 SC 4425.
further text and footnote 102, p 133.
96. Cookson v Knowles (1978) 2 All ER 604 (614-615) : (1979) AC 556 (HL).
92. State v Devi Rawat, AIR 1981 MP 173.

b
 32 Law VI
VI Death in Relation to Torts 133
case,97 where the UCLC,tOC.U
As
three minor On
The any estimate of the number of that a would have
endured is the number of between the date of the death and that at'which he
would have reached That falls to be reduced to take account of the chances
that he age but also the chance that Illness or
have been disabled from There is also the chance that the
before the deceased age-or that she
not have
he affected the

U~"',""J~~ or the V'-U'-U'-,uu

factor. In cases such as . l'ler. 105
t he mu Itip
his widow, about the same age, courts
of the It is seldom that this In Cookson v Knowles, 106
is It represents the value an , certain for ~
11. In Graham v Dodds,107
years at interest rates of 4 cent; 29 years at interest rates of 4Y2 p~r cent, or 33
at interest rates of 5 per cent. to the uncertamnes to be taken mto account, that 18 was an excessive
years would appear to maximum number where the ordered. In the case of Municipal
deceased died in his deceased was the claimants, parents, were
to the Se!eULIUH Lord 1..li1J1L''''r. nh',,"r'ilPrl
In Municipal Corporation suits were
and in each case the was 15. In one of the suits the
The in any estimate of the is the annual value of the material deceased was 30 and in another 40 or 42 and the III
benefits UH)VH..." " tor
r t.h e out 0 f t h e deceased at the date of his death.
But there are many factors which have led to variations or down in the future. His
have increased and him for his (lej~eIIUaH"
have diminished with a recession in he have had 100. See, text and footnote 94, p 131 above; Mallet v (1970) Ae 166 (Lord Diplock); Taylor v
O'Connor, (1971) Ae 115 : (1970) 2 WLR 472 : (1970) 1 ER 365, Cookson 1) Knowles, (1978) 2 All
unerr;Ploy!mc:nL As his children and became the proportion of his earnings
ER 604: (1979) Ae 556 (HL); Graham v Dodds, (1983) 2 All ER 953: (1983) 1 WLR 808 (HL).
likelv to fall. in considering the effect to be given
101. Mallet v McMonagle, (1970) Ae 166, See, text and footnote 97, p 134.
to variation's in the dependency there are two facrors to be 102. Graham v Dodds, (1983) 2 All ER 953 (959) : (1983) 1 'X'LR 808 (HL).
borne in mind. The is the morc remote in fut~re is the anticipated the less
103, General Manager Kerala State Road Transport Corporation v!v!rs Susamma Thomas AIR 1994 se 1631 :
confidence there can be in the chances of its and the smaller the allowance to be made (1994) 2 sec 176: 1994 AC] L
for it in the assessment. The second is that as a matter of arithmetic of the calculanon of the 104. General A1anager Kerala State Road Transport Corporation v Mrs Susarnma Thomas AIR 1994 se 1631,
value, the later the takes the less will be its effect on the total award of pp. 1634, 1635; Susamma's case followed in Smt Sarta Dixit v Balwant Yadav, AIR 1996 se 1274 :
interest rate 4\6 per cent the value of an for 20 years of (1996) 3 sec 179; UP State Road Transport Corporation v Trilok Chandra, (1996) 4 Scale 522 : (1996)
are at £100 annum the second ten years at £200 per annum IS 4 sec 3623. (In this case, it was held that muitiplier can go up to 18 as indicated in the second
!H11Lll"oC of the average of £150 per annum, whereas if the schedule to the Motor Vehicles Act, 1988); Municipal Corporation of Delhi v Smt Sushila Devi, AIR
first ten annum and the second ten years at £ 100 per annum, the 1999 se 1929, p 1933; Lata Wadhwa v State of Bihar, 2001 AC] 1735 (SC) p 2001: AIR 2001 se
VU.IUld'" of the arithmetical mean of £150 annum. If, 3218 : (2001) 8 see 197; MS Grewal v Deepchand Sood, AIR 2001 se 3660 3670; Municipal
are to be reflected in Corporation of Greater Bombay v Laxman !yer, (2003) 8 sec 731, p 739 : 2003 se 4182.
, I
!S tne which are not eXIJeCICa Managing Director TNSTC Ltd. v K1 Bindu, (2005) 8 sec 473 : AIR 2005 se 4425 (Deceased aged
until after ten years rpl,>tn;'p!v small 37, multiplier of 13 applied); Saraj Rani v Govemment ofNCT, Delhi ILR (2010) 5 Del 407 (Standard
used for compensation calculated as per the formula as adopted in Lata Wadhwa v State ofBihar taking the base
year as 20(1) ..
105. HS Ahammed Hussain v lrfim Ahmad, AIR 2002 se 2483, p 2484 : (2002) 6 sec 52; Municipal
Corporation of Greater Bombay v Laxman fyar, supra; TN State Trtmsport Corpn Ltd v S Rajapriya,
97. Mallet (1970) Ae 166; (1969) 2 All ER 178. (2005) 6 sec 236, p 240 (para 12) : AIR 2005 se 2985,
98. Mallet v (1970) Ae 166; (1969) 2 All ER 178. The prospect of remarriage of widow 106. Cookson v Knowles, (1978) 2 All ER 604: (1979) Ae 556 (HL).
cannot be taken into account after Law Reform (Miscellaneous Provisions) Act, 1971. 107, Graham v Dodds, (1983) 2 All ER 953: (1983) 1 WLR 808.
99. Mallet (1970) Ae (1969) 2 All ER 178. 108. Municipal Corporation Greater Bombay v Laxman Narain (2003) 8 sec 731, p. 739.
109. Municipal Corporation ofDelhi v Subhagwanti AIR 1966 se 1750 : (1966) 3 SeR 649.

!
 Chapter VI Death in Relation to Torts 135
134 Law o/Torts Chapter VI

Government service and were aged 34-35 and had left behind widow and children. The
these suits were claimed by the widow and minor children. The facts of the third suit do
High Court of Madhya Pradesh after a discussion of the relevant principles applied the
not dearly appear from the judgment. Multiplier of 15 was also applied in Sheikhpura
multiplier of 15 in both these cases. In Lachman Singh v Gurmit Kaur,120 where the
Transport Co v Northern India Transporters Insurance Compan/1O where the deceased
deceased was aged 23, a multiplier of 16 was applied by a Full Bench of the Punjab and
were aged 42-43 and had left behind widow and minor children as dependants. But in
Haryana High Court.
Madhya Pradesh Road Transport Corporation v Sudhaka/~ j 11 where the deceased wife who
was in service was 23, a multiplier of 20 was applied on the basis that she would The multipliers indicated in the second schedule to the Motor Vehicles Act, 1988
l12 may be taken as guides, though the table has been held to be directory and has no
have been in service for a period of 35 years. Although Mallet's case was cited with
approval in Sudhakar's case,113 attention of the court does not appear to have been application to motor accidents where the income of the deceased was more than Rs
drawn to the of Lord Diplock regarding the selection of multiplier. 40,000 per annum. It has also been held that the multiplier may be suitably reduced if
l21
Supreme Court in Insurance Corporation v Mis. Swarnlata Das, I 14 the the multiplicand is considerably large. In the case where these principles were laid
deceased aged 26 left behind his parents widow as dependants applied a multiplier down the victim of a motor accident was a doctor who had established a huge practice in
15 saying it be the appropriate multiplier having regard to the age of the America. The deceased aged 47-48 had left behind his wife two daughters aged 19 and 17,
deceased. In Susarnma~, case, where the deceased was aged 39, the Supreme Court a son aged 13 and parents aged 73/69 residing in Delhi. The annual dependency worked
12 as the being to the age of the deceased" 115 and in the out to 2, 26, 297 US Dollars. The multiplier indicated in the second schedule was 13 but
having regard to the hupe amount of compensation that it would have yielded, the
cases of Sarla 16 and Sushila the deceased were aged 30
multiplier applied was 10. 22
and 27 years the cases by the Court. In
Kamala Devi State v Devi 19 the deceased were in The lo.w ~nterest rate of 4 to 5 per cent which is generally taken into account in settling
the mulnpher roughly represents the real rate which is the constant difference, valid for the
110. Sheikhpura Co tJ Northern India r/1rJcomTPr< Insurance AIR 1971 SC 1624: (1971) past and future as well, between the current returns on income and property and the rate
1 SCC 785. of future inflation. In Bhagwandas v Mohd Ari/23 Jagannadha Rao J of the Andhra
111. Pradesh High Court, as he then was, after referring to the available data, adopted a rate of
4 per cent as the real rate. In the same case, it was also held that instead of selecting a
ll3.
114. lVational Insurance mul~iplier from experience or annuity tables, a multiplier from Actuary's tables should be
115. Kerala State Road applIed. But as there is no such published table in India, the learned judge himself
constructed a table f~r urban males in India. May be, that the surest way of ascertaining
2 SCC 176. In Mrs 1V1,'II)U<YJr1 124
increments and maxlrn un1 IT11nus expenses, of the entire life expectancy of \vas
awarded without advertence [0 the of sum vicissitude principle and
the present value of future contributions towards dependency is to select a multiplier from
distinction between to the and loss to the estate. In Dez;i " Sirbaksh Singh, 1979 the combined annuity and life expectancy tables, but normally the courts in India prefer
ACJ 496, p 502: AIR 1979 SC 1862: (l980) 1 SCC 273, there is a casual observation that ordinarily the haphazard method of selecting a multiplier based on practice and experience, though
the court in takes the at aboU[ 12 years But the facts at they are prepared to check their assessment against the available statistical data. 125
501 will show of 16 w;]., '

for his expenses was into account and 120. Lachman Singh" Gurmit Kaur 1979 AC] 170 (Punjab & Haryana); see further, UP State Road
v Smt Shanta lrh'edi, AIR 1989 SC 1074 :
Transport Corporation" Smt Premwati, AIR 1992 All 271, p. 274. (deceased aged 30 multiplier of 16
his contribution to the estimated at Rs.
applied); Man'i Yadamma tJ State ofAndhra Pradesh, MR 2002 AP 164 (deceased aged 30, multiplier of
that the claim of Rs. 1 lac as LlIllliJeJIl"H
16 applied) General Manager Punjab Roadways Nanga! Depot" Smt. Santosh Chada, AIR 1997 HP 36
would have a little over thaI amount. In
(Deceased aged 54 multiplier of8 applied and not 11 as indicated in Sch II ofMV Act, 1988).
CortJOr,cltlOn, AIR 1992 1261 : (1992) 2 SCC 567 the
121. United India Insurance Co Ltd tJ Patricia Jean Mahajan, AIR 2002 SC 2607, pp 2614, 2615 : (2002) 6

year and a his

sec 281.
122. United India Insurance Co Ltd v Patricia Jean Mahajan, AIR 2002 SC 2607 : (2002) 6 see 281.
years and high rare of inflation no was made on account of
~~idance on the question of multiplier is also available from a later case, but this was a case of personal
submitred that Sudhclkars case, Swamlata Das;' case and Susammas case
ll1Jury and a lump sum award was made without indicaring the multiplier applied: New India Assurance
UOI v Vijay Sundari, 1991 MP LJ 784, a division bench of M.P. High COUrt
Co Ltd tJ Charlie, MR 2005 SC 2157 : (2005) 10 see 720.
should be cases where the deceased is a Government servant. is submitted
123. Bhagwandas tJ MohdArif, AIR 1988 AP 99, p. 114.
reason to apply a different mode of calculation in case of Government employees. Indeed in /V1~'mc.l[Jrl!
124. Bhagwandas " Mohd Arif, AIR 1988 AP 99, P 116. Approved by a Division Bench in Nirmala Narawa
Corporation Delhi v Smt Sushila Dcvi; MR 1999 SC 1929 : (1999) 4 SCC 317 which roo was ,r case an
tJ Vilas Ramchandra Shangde, 1989 ACJ 715 : AIR 1990 NOC 33; see, APSRTC tJ Krishnan Rao, AIR
army officer 27 years at the time of his death Hardeo NlUr's case was cited but was
1995 AP 65.
multiplier of I was 125. See the Supreme Court Cases in footnote no. 108, 109, 110, 112, 113, 114, 115 and 116 supra; Chaurasia
Sarla Dixit (Sm,,' j. 1996 SC 274: (i 996) .) SCC 179. & Co, Chhatarpur tJ Pramila Rao, MR 1975 MP 31; Manoharlal Shobharam tJ MP Electricity Board, MR
[){'ui, AIR "1999 1929: (1999)
1976 MP 38; State tJ Devi Rawat, AIR 1981 MP 173; Orissa R0t2d Transport Company Ltd tJ RK Das, AIR
Devi 168.
1990 Ofi 74 (FB), p 84.
9. State "DeviRawatAIR 1981 MP 173.

t
136 Law of Torts Chapter VI
Chapter VI Death in Relation to Torts 137
126
The House of Lords in personal injury cases accepted the recommendation of the
The multiplier method is the accepted method of ensuring a just compensation which will
Law Commission in Report No. 224 (1994) that the multiplier should be fixed with make for uniformity and certainry of the awards. We disapprove these decisions of the High
reference to the return of Index Linked Government Stock (ILGS) which yield a net Court which have taken a contraty view. l3 !
return of 3% and not, as was then the current practice, with reference to interest.rate of 4
Some decisions,132 also took the view that even when the compensation is assessed
to 5 percent. It was also held that actuarial tables shoul~ be u~ed as the s~arting poi?! in
by multiplying the annual dependency by the entire life expectancy of the deceased,
settling the multiplier. It may be expected that the same VIew :vIII be taken m fatal aCC1de~t
no deduction should be made as the benefit of the lump sump payment is off set by
cases. It is yet to be seen as to how the Indian courts espeClally the Supreme Court wIll
future inflation, rise in prices, rise in needs of dependants and other uncertain factors.
react to this decision of the House of Lords. ILGS were first introduced in u.K. in 1981.
It is submitted that such an approach will inevitably lead to over compensation. The
The return of income and capital on ILGS are fully protected against inflation. Thus, the
conventional multiplier, selected with reference to interest rates at 4 to 5 per cent to
purchaser of £1 00 of ILGS with a maturity date of 2020 knows that. his inve.stment wi~l
off set inflation and consequent rise in income and prices, though much higher than
then be worth £100 + x% of £100, where x represents the percentage mcrease m the retail
what it would be at current interest rates, is much less than the period for which the
price between the date of issue and date of maturity.127 In the absence of availability ?f
dependency is to last or the life span of the deceased. 133 Therefore, when the datum
ILGs and actuarial tables in India, it is not expected that there would be any change In
figure of annual dependency is multiplied by the entire period of dependency or the
India in fixing damages in fatal accident cases or even in personal injury cases.
life expectancy of the deceased, it is bound to yield over compensation unless suitably
134
Although the multiplicand and multiplier method of calculating compensation was reduced. Susamma's case noticed above must be taken to have disapproved these
135
generally followed, some courts 128' assessed the compensation
. . mul'tip l'
Yl?g t he d at~m decisions also. There is, however, no question of reducing the amount any further if
figure of annual dependency by the number of years representmg t?e ~enod for whICh calculated on the basis of conventional multiplicand multiplier method as explained
the dependants would have continued to enjoy the dependency, whICh IS very often the above. 136
same as the life expectancy of the deceased, and then reducing the figure so reached by
After the decision of the Supreme Co un in Susamma Thomas,137 the multiplicand
25% to 30% on account of lump sum payment and other uncertainties. The Supr~me
multiplier method became well established in Indian law. The choice of the multiplier is
Court deprecated this method and said that this method is "wholly impermissible."m In
determined by two factors namely the rate of interest appropriate to a stable economy
the case of Susamma the Supreme Court observed:
and the age of deceased or the claimant whichever is higher for the calculation as to what
We are aware that some decisions of the High Courts and of this Court as well arrived at capital sum, if invested at a rate of interest appropriate to a stable currency would yield
compensation on some such basis. These decisions cannot be said to have laid down a settled the multiplicand by way of annual interest for the period for which the dependency is
principle. They are merely instances of particular awards in individual cases .. The prop.er method expected to last and would also be consumed up by the end of that period. 138 But the
of computation is the multiplier method. Any departu~e, except III ~xcep:lOnal and ascertainment of multiplicand the court said in Susamma case "is a more difficult
extraordinary cases, would introduce inconsistency of prinCIple, lack of unIformlry and an
exercise,,139 for future prospects of advancement in life and career should also be
element of unpredictabiliry for the assessment of compensation. J 30
sounded in terms of money to augment the multiplicand which is arrived at by
Referring to section 1l0(b) of the Motor Vehicles Act, 1939, which envisages the estimating the gross income of the deceased and deducting it his living expenses
compensation to be 'just', the court further observed: usually 1/3 in absence of any other evidence. It has been noticed that in Cookson v

126. Wells v Wells, (1998) 3 All ER 481 (HL). See further, Chap. IX, p 244. 131. General Manager, Kerala State Road Transport Corporation v Mrs Susamma Thomas, AIR 1994 SC 1631
127. Wells v Wells, (1998) 3 All ER 481 (HL), p 485. : (1994) 2 SCC 176. See further Lata Wadhwa v State of Bihar, 2001 ACJ 1735 (SC) P 1743 : AIR
128. See, for example, Hira Devi v Bhaba Kanti Das, AIR 1977 Gau 31 (FB); lyer Meaking Brewe~ies Ltd ~ 2001 SC 3218 (Three judge bench decision affirming Susamma); United India Insurance Co Ltd v
Bimla Gupta, AIR 1985 All 147; Maharashtra State Transport CorporatlO:Z v Pushpaben RaJarambhal Patricia Jean Mahajan, AIR 2002 SC 2607, P 2614 : (2002) 6 SCC 281.
Patel, AIR 1990 Born 214; The Genera! Manager, Kamataka State Road Transport CorporatIOn v Smt 132. For example, see, PK Krishanan Nair v J( Karunakaran Nair, 1986 AC] 41 (Kerala); Premchand v Jasoda,
Khatujabee, AlR 1991 Kant 189. This practice got recognition by the Supreme Court in Jyotsna Dey v 1985 ACJ 315 (Raj); Mrs Elizabeth Mathew v Shri Vasdeo & Delhi Transport Corporation, AlR 1990 Delhi
State ofAssam, (1987) 1 ACJ 172 (SC); In Singareni Colliereis Co Ltd v Sridari Srirwas, (2011) 3 UP LJ 121, P 124; Dharam Singh v Smt. Parveen Sehgal, AlR 1992 Delhi 347, p 350; Hardeo Kaur v Rajasthan
163, the Andhra Pradesh High Court has held that "the principles under the Motor VehIcles Act, whIch State Transport Corporation, AlR 1992 SC 1261, P 1263 : (1992) 2 SCC 567; See further, Urmilla Pandey
were relied on by the counsel for the appellant are only a guide applicable to the cases of motor v Khalil Ahmad, AIR 1994 SC 2405, pp 2407, 2408 : (1994) 4 SCC 207 (As nothing was paid for nearly
accidents. In cases of tortuous liability otherwise than in a motor accident it is not nccessalY that at all 24 years, in special circumstances no deduction was allowed for lump sum payment).
times the principles should be applied, but they can be taken only as a guide.". 133. See, text and footnotes 93-96, 97, 98, pp 131 to 133, supra.
129. General Manager; Kerala State Road Transport Corporation v Mrs. Susamma 1, 'Tn om,1s. A. i K
P' , ~'J
199'" ,(, 134. Susamma scase, AIR 1994 se 1631 : (1994) 2 SCC 176.
1631, P 1635 : (1994) 2 SCC 176. Also see, on the same lines, Nationallnsurawe lJ
135. Decisions in note 132 above except Urmilla Pandey's case.
Swarnlata Das, AIR 1993 SC 1259, 1261; Mrs. Sudha Rashid v UOl, 1995 (l) 136. Milap Kaur v State, AIR 1988 HP 49, p. 64 (The head note is not accurate); Kumodini Das v Rajat
Dixit v Balwant Yadav, AIR 1996 J274 : (1996) 3 sec 179; UP State Road Kumar Baliar Singh, AIR 1996 Ori 32. But, see, The New India Assurance Company Ltd v Shri Sudesh
Trilok Chandra, 4 SCALE 522. Bhatia, AlR 1991 All 43, P 47.
130. General Managn; Keraftl Stdie ROdd ( J),V/JOJ'atl·on V lyfrs Susa11nna i'llomas, 1994 1631, 137. Susamma Thomas, AIR 1994 SC 1631 : (1994) 2 SCC 176.
p 1635 : (1994) 2 SCC 176. 138. Susamma Thomas, (1994) 2 SCC 176, paras 15 and 16 (SeC).
139. Susamma Thomas, (1994) 2 SCC 176 para 16.

:
138 Law of Torts Chapter VI Chapter VI Death in Relation to Torts 139

Knowles,140 the House of Lords held that the dependency should be fixed at date of In Sarla Verma v Delhi rl111'<flnrt Corporatzon,
. 147 tne
L Court has attempted to
trial having regard to the practice of frequent wage increase due to inflation. 141 The determination multiplicand and UH'>-,Jl!U to about uniformity
concept of "pre trial loss" and "post trial loss" as laid down in Cookson v Knowles was put of compensation payable in case of As regards addition to
to rest in in Knauer (Widower and Administrator of the Estate of Sally Ann Knauer) v to future prospects the court said:
Ministry of Justice 142 wherein it is held that the correct date is the date of trial for In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb,
assessing the multiplier when fixing damages for future loss under the Fatal Accidents an addition of 50% of actual salary to the actual salary income of the deceased towards future
Act, 1976. This method as contemplated in Cookson v Knowles case does not seem to prospects, where the deceased had a permanent job and was below 40 years. (Where the annual
have been accepted in India as well. The method adopted here is to take the basic pay of income is in the taxable range, the words "actual. salary" should be read as "actual salary less tax").
The addition should be 30% if the age of the deceased was 40 to 50 years. There should be no
the deceased employee at a much higher figure upto twice the amount that it was at the
a~dition, where the age deceased is more than 50 years. the evidence may indicate a
time of his death and to add to this amount the various perquisites to which he would dIfferent percentage of increase, it is to standardise addition to avoid different
have been entitled. 143 But it is not permissible according to this view to take into yardsticks being applied or different methods
W',,-_p,nnlmno" or was on a fixed salary (without "".,.",,,,,,r
account future revision in salary if it is not retrospective to cover the date of death. 144 In
take the actual income at the
this particular case l45 the deceased was aged 35 and at the time of his death his basic pay
was Rs 3295. The loss of dependency was calculated on the basis as if the basic pay of
the deceased was Rs 3295 x 2 = 6590 and other perks and allowances such as dearness expenses the court
allowance, child education allowance for two children and child bus fare calculated on We are of the view that where the deceased was married, the deduction towards and
expenses of the deceased, should be one-third (l where the number dependent
this basic pay were added to it which amounted to Rs 8609 and 113 of this amount was
members is 2 to 3, one-fourth (l/4th) where the number family members is
deducted as living expenses of the deceased leaving Rs 5738 as the annual dependency and one-fifth where the number members exceeds six.
which became the multiplicand. Applying to it 13 as the multiplier the amount of
compensation was determined at Rs 8,95,128.
146
In National Insurance Co v Indira Srivastava the Supreme Court reiterated that
'net income' of an employee who dies in an accident for calculation of 'just
compensation' under section 168 of the Motor Vehicles Act is not taken to be
restricted to pay packet the employee carries home at the end of the month but also all
other perks which are beneficial to the members of the entire family. In that case along
with the basic pay the following perks were also added to the basic pay to show loss of considered as a
annual net income: (i) Conveyance Allowance (ii) House Rent Allowance (iii) Bonus sisters will not be considered as
35% of basic (iv) Contribution to PF 10% of basic (v) LTA reimbursement (vi)
Superannuation 15% of basic (vii) Gratuity Contribution 5.34% of basic (viii)
Medical policy self and family Ox) Education scholarship paid to his children. The age
of the deceased in that case was 45 and 13 was the multiplier used. 113 of the total so
reached was deducted which the deceased would have spent on himself. The Supreme
Court also held that in calculating the net income the statutory amount of tax payable
thereon must be deducted. But as in that case the accident had taken place long back
and neither the Tribunal nor the High Court had taken into account rise in the
income of deceased by promotion or otherwise the Supreme Court declined to deduct
the tax payable from the compensation.

140. Cookson v Knowles, (1978) 2 All ER 604.

141. pp 130-131 supra.
142. Knauer (Widower and Administrator of the Estate of Sally Ann Knauer) v Ministry ofJustice, [2016] UK
Se9.
143. Oriental Insurance Co Ltd v Jasuben (2008) 4 see 162 para 29 : AIR 2008 se 1734.
144. Oriental Insurance Co Ltd v Jasuben (2008) 4 see 162, para 28.
18
145. ease in note 141. See further United India Insurance Company Limited v Bindu, (2009) 3 see 705
where age of deceased was 32 years, multiplier of 13 applied.
146. National Insurance Co v Indira Srivastava 1 (2008) ep] 24 (SC). 147. Sarltl Venna v Delhi Transport Corporation (2009) 6 see 121 paras 24, 30, 31, 32,42: AIR 2009 se 3104 .
140 Law VI Chapter VI Death in Relation to Torts 141

of the de'~eased in other, any pecuniary advantage which from whatever source comes to him by reason of the
clarified in Charlie death.

Column 2 These words of Lord were as the principle ~""fJH'_~~'~ also the
21 to 25 yrs 18 Act in Gobald Motor Service Ltd, Allahabad v RMA VeluswamP2 where
Supreme Court stated:
26 to 30 yrs 17
31 to 35 yrs 16 The general is that the pecuniary loss can be ascertained only by balancing on the
one hand the to the claimants of the future pecunial",! benefit and on the other any
36 to 40 yrs 15 pecuniary advantage which from whatever source comes to them by reason of the death, that is,
14 the balance of loss and gain to a dependant by the death, must be ascertained.
41 to yrs
46 to 50 yrs 13 The general principle was reiterated in CK Subramania v T Kunhikuttan Nair1S3
and Sheikhpura Transport Co Ltd v Northern India Transporters Insurance Co Lti S4 This
balancing principle of bringing into account against the loss to dependants any
09 pecuniary benefit accruing to them in consequence of death has step by
07 completely eroded in England by legislation. The Fatal Accidents 1908 (English)
05 provided that no account should be taken of any sum paid or on death of
the deceased under any contract of assurance and this was by 1959 Act
The court then said: (English) to cover "any insurance money, benefit, pension or gratuity, which has been or
The multiplier to be used should be as mentioned in Column (2) of the table above (prepared will or may be paid as a result of the death". Section 4 of the 1976 Act (English) as
by applying Susamma Trilok and Charlie l50 ) , which starts with an amended in 1982 completely negatives the principle of deduction enacting that "in
operative multiplier of 18 the age groups of 15 to 20 and 21 to 25 reduced by one
assessing damages in respect of a person's death in an action under this Act U'-j""'H~
unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 M-15 for 36
to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 then two units
which have accrued or will or may accrue to any person from his estate or otherwise as a
for every five that is, M-ll for 51 to 55 years, M-9 for 61 to 65 of his death shall be disregarded.,,15s Apart from legislation the courts themselves
years and M-5 66 to 70 years. restricted the classes of benefits which can be taken into account by
In the particular case the of the deceased at the time of death was Rs 4004. construing such phrases as 'resulting from' or 'in consequence of the 156 If the

UCiLCll.llH''-'-' at Rs. 6006 50% of the dependants had the use of assets such as house and furniture belonging to the UL''-C.''~'-U
expenses of the his lifetime, no deduction was allowed even if the dependants inherited such
annum. The de,ce,tsed assets on his 157 As regards income producing assets, such as stocks and shares,
~ ~ ~cl what was allowed as deduction was not the value of the assets the of
ls8
R'i 8,64,870. Rs 500 was another sum of the acceleration of inheritance. In a case where the deceased was eX1De(:ted
Rs500 as funeral expenses and Rs as loss of consortium to the widow. the substantial savings in had he lived, no deduction at all was
total compensation allowed was Rs 8,84,870 with interest at the rate of 6% from the acceleration of the benefit of the deceased's estate as savings for the of
date of petition. the dependants were deprived, cancelled out the acceleration 159 But in an
Deductions.-The damages to be awarded to a a deceased person under
the Fatal Accidents Acts must take into account any pecuniary accruing to that 152. Gobald Motor Service Ltd, Allahabad v RMA Veluswami AIR 1962 SC 1 : (1962) 1 SCR 785.
153. CK Subramania Iyer v T Kunhikuttan Nelir AIR 1970 SC 376, p. 380 : (1969) 3 SCC 64.
dependant in consequence of the death of the deceased. 154. Sheikhpura Transport Co Ltd v Northern India Transporters Insurance Co Ltd AIR 1971 SC 1624, pp.
1626, 1627: (l97l) 1 sec 785.
This was stated Macmillan in Davies v Powell Duffiyn Associated Collieries 155. See, Pidduck v Eastern Scottish Ommibuses Ltd., (1990) 2 All ER 69 (CA) , pp 72, 74, 76; Stanley v
Sl
Lti and words to the same effect were by other Law Lords in their speeches. Lord Saddique, (1991) 1 All ER 529, p 539 (CA). But see, Watson v Willmott, (1991) 1 All ER 473: (1991)
Wright in the same case said: 1 QB 140 (CA). [Effect of adoption of infant on loss of dependency].
156. Hay v Hughes, (1975) 2 All ER 257 (274) (CA).
The actual pecuniary loss of each individual entitled to sue can only be ascertained by 157. Bishop v Cunard White Star Co. Ltd., (1950), p 240 (248) : (1950) 2 All ER 22; Headley v Steel Co of
balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the Wales Ltd, (1953) 1 All ER 489 (CA). See Dondapati Vinodu vB Baswa Raju, AIR 1989 AP 227, P 231.
158. Roughhead v Railway Executive, (1949) 65 TLR 435.
159. Kasam v Kampala Aerated Water Co Ltd, (1965) 2 All ER 875 (879, 880) (PC). See, Dondapati Vinodu
148. Susamma Thomas, (1994) 2 SCC 176.
vB Baswa Raju, AlR 1989 AP 227, P 231. In Nazeema v George Kuriakose, AlR 1992 Kerala 67, p 79,
149. Trilok Chandra, (1996) 4 SCC 362.
it has been held that receipt of any property of the deceased by the dependants through succession is not
150. Charlie, (2005) 10 SCC 720.
'by reason of death' and should be kept out of consideration. But, see, Bhai Shamsher Singh v Punjab
151. Davies v Powell Duffiyn Associated Collieries Ltd (1942) AC 601 : 167 LT 74 : 58 TLR 240 (HL). State, AIR 1993 P&H 257.

b
]42 Death in Relation to 143
Law of Torts Chapter V1

extreme case where the entire family income is from investments the whole of this
income is inherited by dependants they may not be able to claim any damages for they
no 10ss.160 Gains made dependants after death but which could not be
as 'resulting or 'in consequence of were not allowed as ·deduction.
category will fall the cases where the workmen voluntarily subscribed funds for
of a deceased workman;16! where ex gratia payments were made
Government when the claim was not against the Govemment;!62 where the claimant
not inherit any estate of the deceased but was given one-third estate by those
inherited out and affection;163 where the dependants, tVITO
the care and services of their maternal ~rand mother took
into her own home family after their parent's death;l 4 and where the widow took
or started 166 after her husband's death.
to the the Law Reform
to section 2 of the Fatal Accidents Act (Indian) were
~,a',Ha.,~""o awarded to the who were also beneficiaries of
168 but of between the accident and
169
death were not deducted. All these cases which relate
of deduction have no in now as the lq;'~ldUUU
170 But these cases have relevance in India where there been
in this respect and the involved in them have been
time to time. A controversial area, relates w insurance
or similar benefits on death to the As
to be deductibie

the
on death were taken into account in
fJIC1R1,Ull' '-"''''''Ul.U

of under the Fatal Accidents Act. 171 no

172.
made m respect of a common law action of ror amounts 73. nmZWUrTi

74.
160. v Cunard White Star Co Ltd, (1950), p 240, (248); Rawlinson v Babcock Wilson Ltd, (1967)
486.
SS Co Ltc!' (1921) 3 K8 481 (485,486); (1922) 1 1<B 361 (380) (CA).
11 P AIR 1989 Mad 14 (when the claim the
by the under Benefit Scheme and
aCj)eCiOams was not taken account); United India Insurance Co Ltd
from Chief Minister's Re!iefFund).
AnZUSi'ment l~C!uilmlent Co Ltd, (J 954) 2 All ER 689 (CA).
257 (CA).
(Al11onnt received under
Ltd, (1967) 1 All ER 539.
Accidents Benefit to be
491. Widow by the of the deceased husband;
to [he should not be deducted in
AIR 1985 SC lOG:
allo-wed on the there is no Ul5CU;'Slon
Ram, AIR J 982 Delhi 233; Smt Ialitha 1)
and it is not dear whether the reduction was not allowed as a matter
Pradesh Court took a different view,
the awarded was low.
AIR 1988 AI' 382.
175. Sushi!tz Devi v fbmhim, 1974 AC] 159 (MP);jai Kumar Lh.i;Jar-an/il/ D'Souza,
Ltd, AC 601 : (1942) 1 All ER 657 (HL).
1978 AC] 28 See Karnataka State Road .)al'lsh,chandl'a. 1981
168. Rose 1/ Ford, 826 (835) : (1937) 3 All ER 359 (HL) (Lord Atkin).
AC] 138 (Kar); Orissa Co Ltc! 11 Sabananda Patnaik, 1979
169. 11 ShuteI', (1975) 3 All ER 375 (CA).
176. Bmdburn 11 Gretlt Western Co (1874) LR 10 Ex. l.
170. as amended in 1982, section 4, See, text and footnote 154,
177. Parry 11 C!ea1ler(l970) AC 1: 2 WLR 82l.
171. Steam Co Ltd, (1922) 1. ICE 36] : 126 482;
178. Gobald Motor Services case AIR 1962 SC I : (1962) 1 SCR 929.
144 Law of Torts Chapter VI Chapter VI Death in Relation to Torts 145

pecuniary advantage which from whatever source comes to them (dependants) by reason made on behalf of and for the benefit of all the legal representatives and the tribunal is to
of the death has to be taken into account in application of the balancing principle. It has mak~ ~ award determining the amount compensation which appears to it to be just
also been held in these cases that rules applicable for determination of compensation speClfYmg the person or persons to whom compensation is to be paid, are substantive
under section 11 OB of the Motor Vehicles Act are the same as applicable under the Fatal provisions which displace to that extent the provisions of section lA of the Fatal Accidents
Accidents Act for the former Act only provides a new forum with some alteration in Act, 1855, more specifically 2nd and 3rd paragraphs of that section, in relation to claims
procedure to make the remedy cheap and expeditious but the substantive law is that arising out of motor accidents. In the case before the Supreme Court, a brother, is not
which is contained in the Fatal Accidents Act and the law of torts as held by the a dependant under section lA of the Fatal Accidents Act, was allowed compensation under
Supreme Court in New India Insurance Co Ltd v Smt Shanti ]vfisra. 179 A Full Bench of the Motor Vehicles Act as a legal representative. The decision of the Supreme Court still
the Madhya Pradesh High Court has also held the same view about section 110B of the leaves open the following four questions: (1) Can a person, who is a dependant under
Motor Vehicles Act that balancing principle applies to claims arising under that Fatal Accidents Act but not a legal representative, claim compensation under the Motor
provision and that in considering the question of deduction it is not a relevant Vehicles Act; (2) Whether legal representatives, seeking compensation under the Motor
consideration that no advantage should accrue to the wrongdoers. 180 It was also held Vehicles Act, can also claim compensation under section 2 of the Fatal Accidents Act for
that the Insurance amount, provident fund, gratuity and pension received by the benefit of the estate of the deceased; (3) Do the principles for awarding just compensation
dependants of the deceased were in the nature of benefits of which they would have got under the Motor Vehicles Act differ from the principles applied in awarding compensation
the advantage in some form, if the deceased had lived, at some point of time in future under the Fatal Accidents Act and (4) Whether the 'balancing principle' is applicable in
and the death can be taken to have accelerated the receipt of these benefits and the making awards under the Motor Vehicles Act. The second and third questions noted
pecuniary advantage received by the dependants by reason of death is merely the above may now be taken as settled by Supreme Court by its decision in General
advantage gained by acceleration of their interest and this can be taken into account in Manager, Kerala State Electricity Board v Mrs Susamma Thomas,187 in which the court
selecting the multiplier; but the burden was on the appellants to show that this was not clearly laid down that section llO(b) of the Motor Vehicles Act, 1939,188 in so far it
done and if they failed to discharge this burden no interference could be made in envisages the compensation to be 'just' does not permit the courts to from the
appeal. lSI It was further held that ex gratia payment made by the employer to multiplicand and multiplier method which is applied under the Fatal Accidents Act, 1855
dependants on the basis of contract of service is a benefit resulting from death and this for that method is the accepted method of ensuring a just compensation. The court also
182 allowed conventional damages for loss to the estate. The Supreme Court has also allowed
amount should be deducted. Another area of controversy is about the categories of
dependants. As already seen, under the English Fatal Accidents Act, the categories of full compensation payable under section 140 of the Motor Vehicles Act, 1988 (no fault
dependants have been enlarged by legislation from time to time. 183 But this has not been liability) to a legal representative (married daughter) who was not dependant on the victim,
done in India; still in some cases relating to automobile accidents courts have widened her father, but was maintained by her husband. 189
the categories of dependants on the reasoning that under the provisions of the Motor The fourth question also can now be taken to be settled by the decision in Mrs Hellen C
Vehicles Act, they are not fettered by the provisions of the Fatal Accidents Act. 184 Rebello v ll!aharashtra State ~oad Transport Corporation 190 which holds that in determining
Contrary view has, however, been taken in other cases on the reasoning that provisions the questIOn of compensatlOn under the Motor Vehicles Act the court has a wider
in the Motor Vehicles Act merely relate to procedure and chan~e of forum but discretion as it has to determine just compensation and a question relating to deduction
substantive law as contained in the Fatal Accidents Act is not affected. 1 5 has to be approached from that angle. It was further held that any pecuniary gain which is
186 not directly related to accidental death and which the claimant would have received on
The Supreme Court has now held that the provisions of sections 110A and 110B of
the Motor Vehicles Act, 1939, which provide that an application for compensation is to be accoun~ o~ any form .of death, accidental or othervvise, is not pecuniary advantage
deductIble m computation of just compensation. On this reasoning the amount received
179. New India Insurance Co Ltd v Smt Shanti Misra AIR 1976 se 237 : (1976) 2 SeR 266. See further, by the claimant on the life insurance of the deceased was held not to be from
on this point Kamala Devi v Kishanchand, 1970 MPL] 273 and Minu B Mehta v Balkrishna, AIR the compensation computed under the Motor Vehicles Act. This reasoning was fttlly
1977 se 1248 : (1977) 2 see 441. accepted in United India Insurance Co Ltd. v Patricia Jean Mahajan 191 and in addition to
180. Kashiram Mathur v Sardar Rajendra Pd, 1982 MPLJ 803 (FB).
the amount received on the insurance policy of the deceased, allowances paid to the wife
181. Kashiram Mathur v Sardar Rajendra Pd, 1982 MPLJ 803 (812, 813, 818, 819) (FB).
182. 1982 MPL] 803 (812, 819). But see text and footnote 161, P 142 supra.
183. See, title 6.2.1, p 12l. 187. General Manager, Kerala State Electricity Board v Mrs Susamma Thomas AIR 1994 se 1631, p 1635 :
184. Joshiram v Naresh /(anta, 1978 AC] 80 (P&H); KSRT. Corporation v Peerappa, 1979 AC] 229 (Kant); State v (J 994) 2 SC 176. See further text and foomote 34, p 121.
Doleram, 1981 AC] 219 (HP); Megji Bhai v Chaturbhai, 1977 AC] 253 (Guj); Chainnan, AP State Road 188. Now section 168 of the Motor Vehicles Act, 1988. But the general principles will not apply to the
Transport Corporation v Shafiya Khatoon, 1985 AC] 212 (AP). specific provisions of no fault liability made in sections 140 and 163A of the Act. •
185. PB Kader v Thatchamma, AIR 1970 Kef 241; Perumal v Elluswamy Reddiar, 1974 AC] 102 (Mad); 189. Smt. Manjari Bera v Oriental Insurance Co Ltd, AIR 2007 se 1474.
Dewan Hari Chand v Delhi Municipality, 1981 AC] 131 (Delhi); Budha v UOI, AlR 1981 MP 81; 190. Mrs Hellen C Rebello v Maharashtra State Road Transport AIR 1999 SC 3191 : (1999) 1
Shanker Rao v Babui.d Fouzdar, AIR 1980 MP 154. sec 90.
186. Gujarat State Road Transport Corporation v Ramanbhai Prabhatbhai, (1987) 3 see 234, pp. 248, 249 : AlR 191. United India Insurance Co Ltd. v Patricia Jean Mahajan AlR 2002 SC 2607, pp. 2619, 2620: (2002)
1987 SC 1690. Followed in Sundara Devi v MohammadZaheer (2011) 89 ALR 785: (2012) 2 All LJ 724. 6 sec 281.

,
146 Law VI
Chapter VI Death in Relation to Tints 147

deductible. enumerated therein whereas

loss to the estate of the
the
from the rr.tyl'-'''':CUH1":1
be used as set or ,"'~ULI"'-'lLU from the quantum of
193
under the Motor Vehicles Act. In Sebastiani Lakra 1} National Insurance
Ltd. 194 The with

on
who can recover the Ud'H,d.l';\:~ the benefit of the estate
.. 202
which will cover amenttJes.
be awarded the weCoc,>;,cl.!

or even after an interval of time

was unconscious?05 In the for loss of
amenities may be under the head

200.
20L \Vinlield, Ton:,
202. V?fst & Sons v cJm"um:ra.

(2007) 8 sec 319 : (2007) 3 sec (er) 550.

sec
11 Rekhaber;, (2017) 13 547.
Ltd 2018(6) Bom eR 323: 2018 see Online se
on 12.01.2018, Madan B. Lokur, S. Abdul Nazeer &

205

992) 2 Ali 65 (HL).

h
 Chapter VI Death in Relation to Torts 149
148 Law of Torts Chapter VI

deceased would have been to save, or

that the died from traumatic asphyxia. It was also found on the basis of medical living, and damages for loss to estate were
evidence in cases of death traumatic asphyxia by crushing, the victim would iHLUUI-'W~< to annual So, in computation the amount that the
lose consciousness within matter of seconds from the crushing of the chest which cut off deceased would have spent on dependants was not taken into account. The result of such a
the ability to breathe and would die within five minutes. On these facts the trial Judge, computation was that in cases where dependants were not the persons to the
the Court of Appeal and the House of Lords unanimously held that the girls did not was likelihood of duplication damages. To remove this
suffer any before death as a result of the injury for which damages could be allowed Hd.Il".HL aH''-l.'''''-',", the Law (Miscellaneous Provisions)
to the estate of the deceased. It was contended that the girls must have suffered fear of that damages recoverable for the benefit the estate will not
impending death in the terrifYing circumstances for which damages could be allowed. for loss of income in of period the victim's
Rejecting this contention Lord Bridge observed:
is still entitled in LlJ'h'dlHU
It is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for
which no damages can be awarded. Those trapped in the crush-who were fortunate enough to
escape without injury have no claim in respect of the distress they suffered in what must have
been a truly terrifYing experience. It follows that fear of impending death felt by the victim of a
fatal before that injury is inflicted cannot by itself give rise to a cause of action which
survives for the benefit of the victim's estate. 208
The controversial area in this context is the award of damages for loss of earning of "lost
years" thereby the period during which the deceased would have continued to
earn but for his death. Pickett v British Rdil Engineering Ltj09 the House Lords in an
action for damages for personal injuries, overruling the decision of the Court of Appeal in An illustration may clarify the X is the income of the estate of the deceased. Y is the
yearly expenditure incurred by on his dependants (we will the other
Oliver lJ Ashman210 held that damages for loss of future earnings should include the whole incurred by him). X-Y, ie, Z is the amount that he saves year. The
period of plaintiff's pre-accident expectancy of earning and not merely the post the income spent on the dependants, subject to relevant is pecuniary loss
accident expectancy of working life. In plaintiff was entitled to claim sustained, by the members of his through his death. The capitalised value or his income
u"",,,a;,,'-' for lost earnings of lost years accident shortened his expectation of subject to relevant deductions the loss caused to the estate his death. If the
211 claimants under both the heads are the same, and if they get compensation for the entire loss
On the same lines the House of Lords in Gammel/lJ Wilron held that in
caused to the estate, they cannot claim again under the head of loss the '-d.~J!ld,H";U
addition to conventional and moderate damages for loss of expectation of life, damages for income that might have been spent on them if the deceased were if
loss to the estate should include damages for loss of earnings of the lost years. The damages compensation under section 1, representing the amount that the deceased would
are calculated by finding the annual loss and applying a suitable multiplier. The annual them if alive, to that extent there should be deduction under section 2 of the Act in
loss to the estate is "what would have been to have available to save, compensation for the loss caused to the estate. To put it if under section 1,
spend or distribute after meeting the cost of his living at a standard which his job and capitalised value of Y, under section 2, they could get the value of Z for
capitalised value ofY + Z, ie, X would be the capitalised value of his entire income.2i7
career prospects at time of death would suggest he was reasonably likely to achieve.,,212
Gammel's case was fonowed in India by a Division Bench of the Madhya Pradesh High Duplication of damages Accidents can be
213 completely avoided if what is ofY with relevant deductions
Court in Rdmeshchandra v Madhya Pradesh State Road Transport Corporation It was
pointed out that the decision in Gammel's case was in line with the Supreme Court's under section lA and the capitalised under section 2,
decision in Gobald Motor Service Ltd. v RMK VeluswamP 4 in which it was held "the irrespective of whether the claimants are same or different. But in
his income subject to relevant deductions would be loss caused to the Chairman, Andhra Pradesh State Road 218

estate of the " The expression "capitalised value" of income has no meaning if the Division Bench of the Andhra Pradesh
loss of earnings is calculated only up to the date it has relevance only in the by the Madhya Pradesh High Court in Kai>nes·tJctJan'ara
context of income that the deceased would have earned in the lost years. It will be seen that during lost years cannot allowed
the annual loss to the estate was computed in Gammel's case to be the amount that the
2] 5. Administration ofJusticeAct, 1982, section 4; Winfield & Jolowicz, Tort, 12th Edn, pp 659 (660).
208. Hicks v Chief Constable ofthe South Yorkshire Police, (1992) 2 All ER 65 (HL), p 69. 216. Pickett v British Rail Engineering Ltd., (1979) 1 All ER 774: (1980) AC 827 : (1980) 2 WLR 283 (HL).
209. Pickett v British Rail Engineering Ltd (1979) 1 All ER 774: (1980) AC 136 : (1978) 3 WLR 955 (HL). Winfield & Jolowicz, Tort, 12th Edn, pp 636 (660) (F.N. 55).
210. Oliver v Ashman (1961) 3 All ER 323: (1962) 2 QB 210 : (1961) 3 WLR 669 (CA). 217. GobaldMotorService Ltd. vRMKVeluswami, AIR 1962 SC 1 : (1962) 1 SCR 929.
21!' Gammell v Wilson (1981) 1 All ER 578: (1982) AC 27: (1981) 2 WLR 248. 218. Chairman, Andhra Pradesh State Road Transport Corporation v Shafiya Khatoon, 1985 AC] 212 (AP).
212. Gammell v Wilson, (1981) 1 All ER 578 (593) : (1982) AC 27 : (1981) 2 WLR 248. Andhra Pradesh High Court allows damages for lost years in a personal injury action; Bhagwandas v
213. Rameshchandra v Madhya Pradesh State Road Transport Corporation 1982 MPLJ 426 : 1983 ACJ 2.21 Mhd. Arit AIR 1988 AP 99, p 103. See further, text and footnote 270, p 241, Chapter IX.
(MP) (G.P. Singh c.J.). 219. Rameshchandra's case, 1982 MPLJ 426: 1983 AC] 221 (MP).
214. GobaldMotor Service Ltd. v RMKVe!uswami AlR 1962 SC 1 : (1962) 1 SCR 929.

6
150 Law of Torts Chapter VI
VI Death Rflcuion to Torts 51
essentially on the ground that the effect of Gammel's case was taken away by statutory
amendment in England but without referring to Gobald Motor Services' case,220 in this
context and without noticing the award of damages for loss of earnings for lost years
under section 2 is as mentioned above supported by that decision. Another point to be
noticed from Gobald Motor Services case is that damages allowed for the benefit of the
estate under the heads and suffering and loss of expectation of life are not to be
deducted from the damages allowed to the de~endants under section lA even if the
claimants under the two sections are the same. 21 In State of Tripura v Tapan Kumar
Dhar222 a division bench of the Gauhati High Coun in a motor accident case allowed
compensation for loss of earnings of lost years under the head loss to the estate. In doing so
the High Court relied upon the illustration ~iven by the Supreme Court in Gobald Motor
Service's case which has quoted above. 220
In General Manager, Kerala State Road Transport Corporation v Mrs Susamma
ThomaP4 the Supreme Court noticed the cases of Picket v British Rail Engineering
Ltd,225 Gammel v Alexander226 and Ramesh Chandra v Madhya Pradesh State Transport
227
Corporation and the that Gammel's case has been statutorily overruled in England.
228
The court quoted almost verbatim the passages A to Al above 229 but failed to
authoritatively decide whether the principle in Gammel's case as applied by the Madhya
Pradesh High Court and as explained above duplication can be in India
or not. All that the court was claim made for loss of future earnings of
Rs 50,000 was facts the case,,230 before the court. In that case the
deceased was claimants were his parents, widow and The
dependency in case was likely to last for the entire working life of the deceased and,
therefore, entire loss of future earnings was taken into account in the sum awarded for
loss of dependency and a further grant of damages for loss of future earnings under the
head loss to the estate would have clearly amounted to duplication. Loss of future
earnings under the head loss to the estate becomes only when the deceased is
young and the dependants are old the dependency is not to last for the entire
working life of the deceased. This was position in the Pradesh case of
Ramesh 231 In that case the was 19 and was undergoing training
of his m a or two, there was a prospect of his
earning and Rs 100 after meeting living expenses. only dependent

220. Gobald Motor Services' case, AIR 1962 SC 1 : (1962) 1 SCR 929.
221. jaikumar Chhaganlal Patni v Mary jerome DSouza, 1978 ACJ 28 (36) (Born).
222. State v Tapan Kumar Dhar AIR 1994 Gau. 28, p. 31.
223. Text and 218,
224. Genem! Afanager, KeralA Road Corporation v Mrs Susamma Thomas AIR 1994 se 1631 :
(1994) 2 SCC 176.
225. Picket v British (1979) 1 All ER 774: (1980) Ae 827: (1980) 2 \XlLR 283 (HL).
226. Gamme! v Alexander (1981) 1 ER 578 : (1982) AC 27 : (1981) 2 WLR 248 (HL).
227. Ramesh Chandra v Madhya Pradesh State Tmnsport Corporation 1982 MPLJ 426.
228. AIR 1994 SC 1631, P 1636 : (1994) 5 sce 176 : 1994 ACJ 1. See further UPSRTC v Trilok Chandra,
(1996) 4 SCC 363 : (1996) 5 JT 356; Bangalore Metropolittm Transport Corporation v Sarojamma,
(2008) 5 sec 142 para 11 : AIR 2008 SC 3244.
229. See, pages 145-146.
230. General Manager Kerala State Road Transport Corporation v Mrs Susamma Thomas, AIR 1994 se 1631,
P 1637: (1994) 2 SCC 176: 1994 ACJ 1.
231. Ramesh Chandm v Madhya Pmdesh State Road Transp011 Corporation, 1982 MPLJ 426. 232. General Manager Kerala State Road Transport Corporation v Jiars Susarmna Thomas, AIR 1994 se 1631,
pp 1636, 1637: (1994) 2 sec 176: 1994 ACJ 1.
 CHAPTER VII

DISCHARGE OF TORTS

SYNOPSIS
7.1 Waiver by Election .................... 153 7.4 Acquiescence .............................. 155
7.2 Accord and Satisfaction ............. 154 7.5 Judgment Recovered .................. 156
7.3 Release ....................................... 155 7.6 Statutes of Limitation ................ 157

7.1. Waiver by Election

Where a man has more than one remedy for a tort, and he elects to pursue one of
them, giving up the others, the other remedies are said to have been waived. He cannot
pursue them if he fails in the one elected. Such waiver may be express or implied: It is
express, when the person entitled to anything expressly and in terms gives it up, in
which case it nearly resembles release; it is implied, when the person entitled to anything
does or acquiesces in something else which is inconsistent with that to which he is so
entitled. The phrase "waive the tort" does not mean that the tort itself is waived; it is
only the right to recover damages for the tort committed, that is waived.
There are certain cases in which a person injured by a tOft may at his election bring an
action of tort, or waive the tort and sue the wrong-doer on a contract implied fictitiously
by law. Thus, if the defendant obtains the plaintiffs money by fraud or other wrong, the
plaintiff may sue him in tort or for money had and received. 1 Similarly, if a man is
wrongfully deprived of his goods, which are afterwards sold, he may bring an action for
2
damages for the tort, or he may sue for the price received by the defendant.
In United Australia Ltd v Barclays Bank Ltd,3 the House of Lords drew a distinction
berween election of remedies and election of substantive rights. In a case the
election is berween two remedies, it is not complete merely by filing a suit to invoke one
remedy until judgment is obtained whereas in a case where there is an election between
two inconsistent substantive rights, the election may be complete at an earlier stage. For
example, if the plaintiff sold his goods to the defendant because of fraud, may either
affirm the contract and sue for price or he may treat the contract as void and sue for
damages for fraud. This is an example of election between two inconsistent substantive
rights and if the plaintiff institutes a suit for price of the goods affirming the contract,
the election will be complete. But when the plaintiff has to elect berween suing for

1. Neate v Harding, (1851) 6 Ex 349.

2. Rodgers v Maw, (1846) 15 M & W 444 (448); Thorappa v Umedmalji, (1923) 25 Born LR 604.
3. United Australia Ltd v Barclays Bank Ltd (1941) AC 1 : 57 TLR 13 : 164 LT 139 : 1940 All ER 20 (HL).

153

b
 Chapter VII Disch{lrge o/Torts 155
54 Law VII

Accord without satisfaction does not bar the right of action. 10 But if is accepted
in satisfaction is merely the promise and not the performance thereof, the original cause
11
of action is discharged from the date of the promise. It is a matter construction
what was accepted in satisfaction was the promise or its 12

A civil action in tort and criminal proceedings for libel are distinct and different
remedies. Any adjustment of the criminal complaint would not operate as an accord and
satisfaction of the civil action for damages, unless it was agreed that the compromise in
the criminal proceedings should also operate as an accord and satisfaction of the civil
. 13
actlOn.

7.3. Release
A release is the giving up or discharging of right of action which a man has OJ' may
14
have against another man. But a release executed under a mistal{e or in of
one ,s ng
. h ts, 15 or 0 b'
tame d b
ye d 16 IS
Irau, rd .
. not va,l

A covenant not to sue at all is equivalent to a release and may be pleaded in bar. 17 A
mere covenant not to sue one of two joint tort-feasors does not operate as a release so as
to discharge the other. 18

Acquiescence
Where a person who knows that he is entitled to enforce a right, neglects to do so for
7 a length of time, the other party may fairly infer that he has waived or abandoned his
right. But to deprive a man of his legal remedies there must be something more than
dY'iCC''''='H between tVITO or more persons, one of whom has mere delay.19
the latter shall render and the former acceDt some 20
the of action. 'Accord' indicate; Direct acquiescence takes away the right of action.
makes it When the
10. Lee v Lancashire 6- York Ry Co, (1871) LR 6 chapter 527.
operates as a bar to the I!. Morris v Baron & Co, (1918) AC 1 (35) (Lord Atkinson).
tort-feasor operates in 12. Elton Cop Dyeing Co Ltdv. Brodbent6-SonLtd, (1919) 89LJKB 186.
rise to but one 13. GOllindachariyalu v Seshagiri Rao, (1941) 2 MLJ 674, (1941) MWN 786.
satisfaction is as and 14. Hore v Becher, (1842) 12 Sim 465.
15. Phelps v Amcott, (1869) 21 LT 167; Knapp v Burnaby, (1608) 8 WR (Eng) 305.
respect to the entire cause of action. s 16. Hirschfield v LB. 6 S. C. Ry. Co., (1876) 2 QBD 1.
Where are to be accord and 17. Ford v Beech, (1848) 11 QB 852 (871).
18. Duck 1) Mayeu, (1892) 2 QB 511 : 41 WR 56; Poltachi Town Bank Ltd v Subramania (1934)
Lord Campbell's MWN621.
to accept a sum for pCl.0Ulld1 19. Ucla Begam v Imam-lid-din, (1875) ILR 1 All 82, 86; Kazi Mahamad v Narotam, (1907) 9 Born LR
when 1117.
20. In the following cases, the of action was held to have been taken away by acquiescence:-
The right to a house after was dedicated as a house of prayer (Sufroo Shaikh Duryee v Futteh Shaikh
Duryee, (1871) 15 WR 505); the recovery of possession by landlord ofland let for cultivation with a tea
4. Mahesan v Malaysia Government Officers' Co-operative Housing Society Ltd (1978) 2 All ER 405 (PC).
nursery (Langlois v Rattray, (1878) 3 CLR 1), or with a substantial brick-house erected on it by a tenant
5. Makhanla! v Panchamlal, (1934) 31 NLR 27. (Shib Doss Banerjee v. Bamun Doss Mookerjee, (1871) 15 WR 360; Lalla Gopee Chand v Shaikh Liakut
6. Blake's case, (1606) 6 Rep 43b. Hossein, (1876) 25 WR 211; Dattatraya Rayaji Pai v Shridhar Narayan Pai, (1892) ILR 17 Bom 736;
7. Read v GE Ry Co, (1868) LRQB 555 : 37 LJQB 278: 18 IT 822. Yeshwadabai and Gopikabai v Ramchandra Tukaram, (1893) ILR 18 Bom 66; Dunia Lal Seal v Gopi
8. Rideal v Great Western Ry, (J 859) 1 F & f 706. Nath Khetry, (1895) ILR 22 Cal 820; Narayen v. Daji, (1899) 1 Born LR 191; Krishna Kishore Neogi v
Mir Mahomed Ali, (1899) 3 CWN 255; Ismail Khan Mahomed v]oygoon Bibee, (1900) 4 CWN 210;
9. Ellen v Great Northern Ry. Co., (1901) 49 WR (Eng) 395; Roberts v Eastern Counties Ry Co, (1859) I F
[Footnote No. 20 Contd.]
& F 460.
 156 Law ChapterVn Chapter VII 157

a cause of action arises as

The cause of action a wrong-doer in respect of a wrong is extinguished by a nuisance successive action may
judgment obtained in a court of law. The judgment is a bar to cause of
because it is thereby to a certainty, and the object of the suit the
far as it can be at that stage; and it would be useless and vexatious to in 1886. For
to another suit for the purpose of obtaining the same result. The person more, In
a second action for the same wrong even though it is subsequently
is much greater than was anticipated when the action was
a person sustains a broken arm and a he must sue
in the same action.

may arise out of the same

same
The a cab-driver, was to recover ua.""~r,'.0
received m a by defendant's negligence, though he had actions of ton must
,",p,ncc,""'" in a previous action for to the cab.
22 1980 will not to claims
reliefs as to in torts. 25
is of a continuing nature
within which suits can be brought in courts against wron~-doers for
~".H",'H" of an action and the recovery of ,""JlH<1l'.\..O
are governed by the of the Limitation 1963. 6 In cases
not prevent the party
'-'VHUlHLUUl'. tort, a fresh period of to run as and the tort or
the continuance of the Dealing with continuing wrong,
"it is of the very essence of a wrong that it is committed?7 This is section 22 of the Limitation 1963. 28
must be an act which creates a source of thus renders of in cases of medical been
the act responsible and for the continuance of injury. If the wrongful act is
complete, then is no continuing wrong though damage resulting from act may
reasonable exercise of diligence,
continue. A distinction exists injury caused by a wrongful act and what may 29
start to run. In cases of tre:so;'lSS.
be said to effect of the injuty". 23 In cases in damage is not of the essence of the
continue as as unlawful
action, as in trespass, a fresh cause of action arises de die in diem, and in cases in which
be covered
[Footnote No. 20 Contd.] actions in tort. Limitation for such actions is
Ismail Khan Mahomed v L.PD. Broughton, (1901) 5 CWN 846). The right of a landlord to prevent 1963 ie two years.3!
brick-making by a tenant (Nicholl v Tarinee Churn Bose, (1875) 23 WR 298), or to prevent changing
the character of land demised by planting grafts of mango trees (Noyna Misser v Rupikun, (I882) ILR 9
24. Darley Main Colliery Co v Mitchell, (1886) 11 App Cas 127 : 14 125 : 54 LT 882.
Cal 609), or to prevent erection of a house by the trespasser on the land trespassed (Gobind Puramanick
See Holmes v Wilson, (1839) 10 A&E 503. The continuing use of the buttresses for the support of the
v Gooroo Chum Dutt, (1865) 3 WR 71: Gujadhur Singh v Nund Ram, (1866) I Agra HC 244), or to
road was, under the circumstances, a fresh trespass.
prevent erection of a chabutra so as to block up an old drain (Nil Kant Sahoy v Jujoo Sahoo, (1873) 20
25. Higgins Construction Pic v Aspect Contracts (Asbestos) Ltd, [2015] UKSC 38.
WR 328); allowing of surface water being drained over one's land (Heera Lall Kooer v Purmessur Kooer,
26. For 'Continuing Wrong', See Hari Ram v Jyoti Prasad, (201l) 2 SCC 682, para 18 : AIR 2011
(1871) 15 WR 401); making of a road (Radha Nath Banerjee v Joy Kishen Mookerjee, (1864) I WR
SC 952; see also, Reserve Bank of India 0 ABTools Pot Ltd (OSA No.2/20 14) Decided on 17.06.2015
288); closing of a road (Banee Madhub Doss v Ram Joy Rokh, (1868) 10 WR 316); or restoring a bund
(DB) Mansoor Ahmad Mir C] & Tarlok Singh Chauhan J (as per Tarlok Singh Chauhan].).
(Bhyro Dutt v Mussamut Lekhranee Kooer, (1871) 16 WR 123); or removing a privy (Brommo Moyee
27. Subhash Chandra vPositiv Television (2015) 218 DLT 274.
Debia Chowdhrain v Koomodinee Kant Banerjee Chowdhry, (1872) 17 WR 466) were similarly held to
be taken away by acquiescence. 28. Hari Ram v /Yoti Prasad, (2011) 2 SCC 682 ; AIR 2011 SC 952.
21. ActVof1908. 29. VN Shrikhande (Dr.) v Anita Sena Fernandes, (2011) 1 SCC 53 : AIR 2011 SC 212.
22. Bransden v Humphrey, (1884) 14 QBD 14l. 30. Vinay v Court Receiver, Hizh Court of1udicature at Bombay, (2010) 6 Mah LJ 407 : (2011) 2 Bom CR
328; (2011) 3 AIR Born R (NOC 214) 67.
23. T Matheswari /, TG Tulasi, (2011) 1 LW 235; (2011) 1 CTC 673 : (2011) 4 Mad LJ 63.
31. Damini v Jodhpur Vidyut Vitran Nigam Ltd, (2017) 9 SCC 443.
 SThTOPSIS
8.1 Ratification ............ . 159 8.2.3 195
8.2 Relation ................ .. 160 8.2,4 195
8.2. Master and Servant ..... .. 160 8.2.5 Firm and Partner .......... 195
8.2.2 8.2.6 Guardian Ward ...... 196
189 8.3 Abetment ................ 196

A person may be acts or omissions ofdHvu.!Cl in three ways:-

. As act;
2. As 0ld.UUjiHl'.

the tortious acts committed others.

An act done for another

other person,
if case the the act,
and whether it be on a tort or a
all the consequences which follow the
1 Omnio et mandato

anse a person can held liable for a tort by

that the the act it with full knowledge of

its tortious, or it must be and taking benefit the act,

1. Per Tindal, CJ in Wilson v Tumman, (1843) 6 M & G 236 (242), Referred to in Keighley Maxsted 6- Co
v Durant, (1901) AC 240 (246, 254): 84 LT 777 (HL).

159
160 Law of Torts Chapter VIII Chapter VIII Liability for Wrongs Committed by Others 161
he meant to take upon himself, without inquiry, the risk of any irregularity which might
(3) ~aster's ri.ght. to control. the method of doing the work, and (4) Master's right of
have been committed, and to adopt the transaction right or wrong?
suspenSIOn or dIsmissal. The Important characteristic according to this analysis is the
The act of ratification must take place at a time, and under circumstances, when the master's power of control for other indicia may also be found in a contract for services.
ratifYing party might himself have lawfully done the act which he ratifies. 3 -
8.2.1.1.2 Modern View: Control Test Not Exclusive
(2) Only such acts bind a principal by subsequent ratification as were done at the time
4
on the principal's behalf. What is done by a person on his own account cannot be But the test of control as traditionally formulated was based upon the social conditions
effectually adopted by another. If an act be done by a person on behalf of another, it is of an earlier age and "was well suited to govern relationships like those between a farmer
in general immaterial whether the authority be given prior or subsequent to the act. and an agricultural labourer (prior to agricultural mechanisation), a craftsman and a
journeyman, a householder and a domestic servant and even a factory owner and an
5
(3) An act which is illegal and void is incapable of ratification. A ratification of a tort unskilled hand."g The control test breaks down when applied to skilled and particularly
by a principal will not free the agent from his responsibility to third persons. professional work and, therefore, it has not been treated as an exclusive test. 9 The Supreme
Court in Dharangadhara Chemical Works Ltd v State of Saurashtra 10 laid down that the
8.2. Liability by Relation existence of the right in the master to supervise and control the execution of the work done
by the servant is a prima facie test, that the nature of control may vary from business to
8.2.1 Master and Servant business and is by its nature incapable of any precise definition, that it is not necessary that
the employee should be proved to have exercised control over the work of the employee,
8.2.1.1 Servant and Independent Contractor tha: the test of control is not of universal application and that there are many contracts in
whICh the master could not control the manner in which the work was done. The English
8.2.1.1.1 Traditional View: Test of Control Courts have also recognised that the control test is no longer decisive. 11 In Montreal v
A servant and independent contractor are both employed to do some work of the Montreal Locomotive Works Ltd, 12 Lord Wright said that in the more complex conditions
employer but there is a difference in the legal relationship which the employer has with of modern industty, more complicated tests have often to be applied. According to him, it
each of them. A servant is engaged under a contract of service whereas an independent would be more appropriate to apply a complex test involving (1) control; (2) ownership of
contractor is engaged under a contract for services. The liability of the employer for the the tools; (3) chance of profit; (4) risk of loss; and control in itself is not always
l3
wrongs committed by his servant is more onerous than his liability in respect of wrongs conclusive. Lord Denning, as Lord Justice, in Stevenson jordan and Harrison Ltd v
committed by an independent contractor. It is, therefore, necessary to distinguish MacDonald and Evens,14 referred to the distinction between a contract of service and a
between the two. The traditional mode of stating the distinction is that in case of a contract for services as a "troublesome question" and observed: "It is almost impossible to
servant, the employer in addition to directing what work the servant is to do, can also give a precise definition of the distinction. It is often easy to recognise a contract of service
give directions to control the manner of doing the work; but in case of an independent when you see it, but difficult to say wherein the difference lies. A ship's master, a
contractor, the employer can onr direct what work is to be done but he cannot control chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of
the manner of doing the work. In Short Vj & W Henderson Ltd, 7 Lord Thankerton service; but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a
pointed out four indicia of a contract of service: (1) Master's power of selection of his
servant; (2) payment of wages or other remuneration;
8. Kahn Freund, (1951) 14 Modern Law Review, p 505.
9. Silver jubilee Tailoring House v Chief 111.spector of Shops and Establishments, (1974) 3 sec 498 (507); PM
2. Per Loch, ]., in Rani Shamasundari Debi v Dukhu Mandal, (1869) 2 Beng LR (ACJ) 227 (229); Girish Patel and Sons v UOJ, (1986) 1 sce 32, p 39: AIR 1987 SC 447.
Chandra Das v Gillanders Arbut'aot & Co, (1869) 2 Beng LR (OCJ) 140. See, Venkatasa Naiker v T 10. Dharangadhara Chemical Works Ltd v State of Saurashtra, AIR 1957 SC 264. See further, Birdhichand
Srinivasa Chariyar, (1869) 4 MHC 410; Eastern Construction Co v National Trust Co, (1914) Ae 197 Sharma v First Civil judge, Nagpur, AIR 1961 SC 644; DC Dewan Mohideen Sahib and Sons v The
(213): 110 LT 32l. Industrial Tribuna£ Madras, AIR 1966 se 370; Shanker Balaji Waje v State ofMaharashtra, AIR 1962
3. Bird v Brown, (1850) 4 Ex 786 (799). See Buron v Denman, (1848) 2 Ex 167; Whitehead v Taylor, SC 517; Vl' Gopata Rao v Public Prosecutor, A.P., (1969) 1 sce 704; Employers in Relation to the
(1839) 10 A & E 210. Management of Reseroe Bank of India v Their Workmen, (1996) 2 Scale 708, p 712; Employees State
4. Brook v Hook, (1871) LR6 Ex 89; Keighley Maxsted &Co v Durant, (1901) AC 240, p 260: 84 LT 777 (HL). Insurance Corporation v Apex Engineering Pvt. Ltd., (1997) 9 JT 54, pp 62,63 : (1998) 1 see 86 (A
5. Wilson v Tumman, (1843) 6 M & G 236; Lewis v Read, (1845) 13 M & W 834. dlfector appointed managing director on remuneration may be an employee); Indian Overseas Bank v
6. Performing Right Society Ltd v Mitchell, (1924) 1 KB 762 : 131 LT 243 : 40 TLR 308; Eggintan v lOB Staff Workers Union, AIR 2000 se 1508, p 1517 : (2000) 4 SCC 245 (no test of universal
Reader, (1936) 52 TLR 212; Collins v Herts County Council, (1947) 2 KB 343 (352). application); Workmen of Nilgiri Co-op Mkt. Society v State of Tamil Nadu, AIR 2004 se 1639, pp
7. Short Vj & W Henderson Ltd, (1946) 62 TLR 427 (HL), P 420. See further, State of UP v Audh Narain 1645, 1646: (2004) 3 sec 514, pp 529, 530.
Singh, AIR 1965 SC 360: (1964) 7 SeR 89. State ofAssam v Kanak Chandra Dutta, AIR 1967 SC 884 11. Cassidy v Minister of Health, (1951) 1 All ER 574 (579) : (1951) 1 TLR 539 : (1951) 2 KB 343
(886) : (1967) 1 SCR 679. (A relationship of master and servant may be established by the presence of (Sommervell, L); Market Investigations Ltd v Minister ofSocial Security, (1968) 3 All ER 732.
12. Montreal v Montreal Locomotive Works Ltd, (1947) 1 DLR 16l.
all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each
13. Montreal v Montreal Locomotive Works Ltd, (1947) 1 DLR 161, P 169.
case whether there is such a relation).
14. Stevenson jordan and Harrison Ltd vMacDonaldandEvens, (1952) 1 TLR 101.
 ChapterVm Liability for Wrongs Committed by Others 163
162 LalO VIII
management he has, and whether and how far he has an of 1"''''""''''6 from sound
instances is under a management in the performance of his task. 22
his work is done as an
his In the context of a courier company had employed by written
service' a number of persons as bicycle couriers who owned their own bicycles
the expenses of running them but who on uniforms bore the of the company,
the High Court of Australia in holding the company vicariously for an injury
caused by negligence of a bicycle courier observed:
In general, under contemporary Australian conditions, the conduct by the defendant of an
enterprise in which persons are identified as representing that enterprise should carry an
obligation to third persons to bear the cost of injuty or damage to them which may fairly be said
to be characteristic of the conduct of that enterprise. 23

8.2.1.1.3 Hospital Authorities

Consistent with the control test which was earlier followed, a hospital authority was
not held liable for the negligence of its staff in matters requiring professional ski1l24
with the change in the legal position that the control test is not decisive in all cases and it
breaks down when applied to skilled and professional work, a hospital has now
been held liable for negligence of its professional staff25 the distinction earlier drawn
between professional duties and ministerial or administrative duties has been
26
disapproved. The State has been held liable for the negligence of the staff of a
27
government hospitaL In Santa Garg v Director National Heart 28 the Supreme
Court quoted with approval the following proposition from Denning LJ's judgment in
Cass!'J'
:y s case: 29
The hospital authority is liable for the negligence of professional men employed by the
authoriry under contract for service as well as under contract of service. The authority owes a
duty to give proper treatment-medical, surgical, nursing and the like-and thought it may

22. Market Investigatiom Ltd v Minister ofSocial Security, (1968) 3 All ER 732, at pp 737, 738.
from time to time other contractors. In "V'~'AAh
23. Hollis v VabuPL't. Ltd., (2001) 75 ALJR 1356, P 1365.
the test laid down Cooke J which is as follows: 24. Hillyer v St. Bartholomew's Hospital, (1909) 2 KB 820: 101 LT 368: 25 TLR 762; Distinction is drawn
Control will no doubt have to be considered, although it can no longer he regarded as between professional duties and ministerial and administrative duties.
that factors, which may be of are such matters as 25. Gold v Essex County Council, (1942) 2 KB 293 : (1942) 2 All ER 237 (case of radiographer); Collins L'
the sole
the services provides his own equipment, whether he hires his own Hertfordshire County Council, (1947) KB 598; Cassidy v Ministry of Health, (1951) 2 KB 343 (House-
whether the man
Surgeons and whole-time Assistant Medical Officers), Roe v Minister of Health, (1954) 2 QB 66 :
helpers, what of financial risk he takes, what degree of responsibility for investment and
(1954) 2 All ER 131 (stafF anaesthetists). A hospital authority, it is said, itself owes a duty to the
patients which cannot be delegated and the authority is liable both primarily and vicariously for the
negligence of its staff. On this principle the hospital authority may be held liable for breach of its
15. and Harrison Ltd. v MacDonald and Evens, (1952) I TLR 101 (111). primaty duty when the negligence is of a person who cannot be called a servant of the authority eg,
16. United State v Silk, 331 US 704. Visiting Consultants and Surgeons, See: Gold v Essex County Council, (1942) 2 KB 293 (301, 309) :
17. v ChiefInspector ofShops, (1974) 3 SCC 498 : AIR 1974 SC 37. . (1942) 2 All ER 237; Cassidy v Ministry ofHealth, (1951) 2 KB 343 (362-365) : (1951) 2 All ER 575;
18. Silver Jubilee House v Chief Inspector of Shops, (1974) 3 SCC 498, pp 507, 508. Quoted m PM Roe v Minister of Health, (1954) 2 QB 66 (82). See, Chapter XIX title 9.4.4, p 581; Joseph Alias
Patel & Sons v UOI, 1 SCC 32 (39). Pappachan v D. George Moonjdy, AIR 1994 Kerala 289, p 295 (Surgeon).
19. Silver Jubilee Tailoring House v ChiefInspector ofShops, (1974) 3 SCC 498, P 508. .. 26. Amalgamated Coalfields Ltd v Mst Chhotibhai, (1973) ACJ 365 (369)(MP); 1973 MPL] 389. Also, cases
in footnote 25, supra.
20. Silver Jubilee Tailoring House v ('-'hief Inspector of Shops, (1974) 3 SCC 498, p 509. Reference III~~~
context is made to observations of Dixon, J., in Humberstone v Northern Timber MzZls, (1949) 79 27. Smt. Kalawati v State of HP, AIR 1989 HP 5; Dr Pinnamanini Narsimha Rao v Gundavarapu
JaY'lprakasu, AIR 1990 AI' 207, pp 217, 218; RP Sharma v State of Rajasthan, AIR 2002 Raj 104;
389; "The is not whether in practice the work was in fact done subject to a direction or c~ntrol
Achutrao Haribhau Khodwa v State of Maharashtra, AIR 1996 SC 2377 : (1996) 2 SCC 634; State of
exercised by an actual supervision or whether an actual supervision was possible but whether ul:lmate
Haryana v SmtSantra, AIR 2000 SC 1888 : (2000) 5 SCC 182.
authority over the man in the performance of his work resided in the employer so that he was subject to
28. Santa Garg v Director National Heart Institute, (2004) 8 sec 56, p 66 : AIR 2004 SC 5088.
the latter's order and directions." 29. Cassidy v Ministry ofHealth, (1951) 2 KB 341.
21. Lee Ting v Chung Chi-Keung, (1990) 2 AC 374 (PC) 382.

b
164 Law a/Torts Chapter VIII
ChapterVm Liability for Wrongs Committed by Others 165
to those who are not its servants, it remains liable if the
np'·''''·'''','rl by its delegates. In the present case, if the appellant's contention were to the crane driver would chan2'e
his employer each time he embarked on the discharge of a Indeed, he might "
In Santa for compensation against a hospital ftom day to day without any say as to who his master should be and with all the
could not on this that the Doctors disadvantages of uncertainty as to who should be responsible for his insurance in respect of
responsible health, unemployment and accident.

Although this was a case where a machine was let out with a man, same
has been followed when man is sent for doing another's In the words of
Lord Denning, MR:
Just as with employers who let out a man with a machine, so also with an
out a skilled man to do work for another, the general rule is that he remains
general employer throughout. 32

Indeed the House of Lords decision in Mersey Docks Harbour Board's case was
p~'n'AU,~" continues followed by the Privy Council in Bhoomidas v Port of Singapore
u""".,,, employer to prove of stevedores in the general employment of the port authority
by proving only that to a ship for loading a cargo of planks the wharfside and a of the
,,-11''''''''.'-1 to the hirer and that the injured by the negligence of another member of the gang. Although was a case
to the and (4) a term in the only men without any machine were sent to work for another, the Privy Council held
hirer stipulating as to who shall be the the principle was the same and general employers faced a "formidable"
inter se liability, is not conclusive against they failed to discharge that was transfer of services of the gang to ship. It was
the person the tort servant. In Mersey Docks Harbour Board v pointed our that no decision the case of Donavan v and Down
6- Griffith (Liverpool) 31 the appellants let out their crane and driver to the
Construction Syndicate,34 a decision came for a good deal in Mersey Docks
reSDonaem :'\f/,veoores under a contract providing that the driver shall be the servant of case was brought to their notice in which the burden was successfully discharged. 35
The crane driver by his negligence a giving rise to Where a vehicle is let out on hire with the service of a and an accident occurs
as to who was master at the time the accident purposes of vicarious through the negligent act of the driver causing to a third person, one
All the courts held there was no transfer the servant and the appellants test for determining who is the master for purposes of vicarious is the answer to
to be the master and were, therefore, liable for the negligence of the servant. the question-whether the in doing of the negligent act was
Lord Porter in his in the House of Lords pointed out that an arrangement for the discretion to him by his regular employer, or whether was
of the services of the servant from one master to another can take place only order of the hirer for whom, on his employer's he was the
with his express or consent and that it is not legitimate to infer that a change of Ordinarily, when a vehicle is hired with its driver, the driver continues to exercise
masters has been because a contract has been made between the two employers own discretion which has been vested in him regular master. if the
whose servant the man employed shall be at a particular moment in course intervenes to give directions as to how to drive for which he possesses no
general by one of the two. He then observed: the driver pro hac vice (for the occasion) complies with them and an """.n.'-''-''''
The most satisfactory test, by which to ascertain who is the employer at any particular time, is resulting in an injury to the party, the hirer is liable as joint tort-feasor the
to ask who is entitled to tell the employee the way in which he is to do the work upon which he general employer is not liable. 37
is engaged. If someone other than his general employer is authorised to do this, he will, as a rule,
be the person liable for the employee's negligence. But it is not enough that the task to be In Rajasthan State Road Transport Corporation v Kailash Nath 38 the bus which
performed should be under his control, he must also control the method of performing it. It is met with an accident was hired along with the the corporation from a
true that in most cases no orders as to how a job should be done are given or required; the man
owner. Although the driver continued to be under the pay roll of the owner, his services
is left to do his own work in his own way. But the ultimate question is not what specific orders,
or whether any orders, were given but who is entitled to give the orders as to how the
work should be Where a man driving a mechanical device, such as a crane, is sent to 32. Savory v Holland and Hannen 6- Cubitts (Southern) Ltd., (1964) 1 WLR 1158 (1163): (1964) 3 All ER 18.
perform a task, it is easier to infer that the general employer continues to control the method of 33. Bhoomidas v Port ofSingapore Authority, (1978) 1 All ER 956 (PC).
performance, since it is his crane and the driver remains responsible to him for its safe keeping. 34. Donavan v Lang and Down Construction Syndicate, (1893) 1 QB 629.
35. Bhoomidasv Port ofSingapore Authority, (1978) 1 All ER 956 (958, 959) (PC).
30. Mersey Docks 6- Harbour Board v Coggins 6- Griffith (Liverpool) Ltd, (1946) 2 All ER 345 (HL); (1947) 36. Nicholas v FJ Sparkes & Son, (1945) 1 KB 309; Niranjanlal v Ramswarup, (1950) AL] 761; Kundan
AC 1 (HL); Bhoomidas v Port ofSingapore Authority, (1978) 1 All ER 956 (PC). Kaur v Shankar, AIR 1966 Punj 394.
31. Mersey Docks and Harbour Board v Coggins 6- Griffith (Liverpool) Ltd, (1946) 2 All ER 345 (HL): 37. Government of India v Jeevaraj Alva, AlR 1970 Mys 13; see further, Mersey Dock's case, (1947) AC 1
(1947) AC 1 (HL). (12) : 175 LT 270: 62 TLR 533 (HL) (Lord Simon).
38. Rajasthan State Road Transport Corporation v Kailash Nath Kothari, AIR 1997 SC 3444.

t
166 Law ofTortJ Chapter VlII
VIII COrflJnittecl kv ()ther:; 167

were transferred <",/j,",'!'-'L control to the corporation under whose

or not to the bus on the road for
circumstances the and
not the owner was held liable for the tort committed by the
down the case Anand J observed:
The general proposition of law and arising therefrom that an I'm:nl'WFr
the person who has the right to hire fire employee, is generally ''"'pva,,,,-,,<--
for the ton committed by the concerned during the course of
within the of his authority, is a presumption, If the original ,o,y,nl,nm>T
the servant was lent, the effective control over him was also rron<'fprrFr1
hirer, the owner can avoid his and the temporary employer or the hirer as the
case may be, must be held vicariously liable the tort committed the concerned employee
in the course of his employment while under the command and control of the hirer
th<:to',n'nO" the fact that the driver would continue to be on the pay roll of the original
39
owneL

In Australia on the
of a motor vehicle is liable for U"",-H,K'-!L'-"

to motor vehicles

8,2.1.1.5
r
or master

39, 3449, See further National fnsumnu Co Ltd 11

by
44. SmnJon l/ Aitchison. (1912) ltC 844; /1 Patriel,. (1924) 488,
45, Orrnrod v C-'ro.fsiJille ivfotor Services Ltd., (1953) 2 lL\Jl ER U=_/\) ,
46, R.1!!1barran Gurrucharran, (1970) 1 jlJl ER 749 (PC): (l970) 1 WLR 556,
47, Lal,pzCt.IIJUI"V, (1972) 2 AJi ER 606: 1973 AC 127 (HL).
48, Committee, (1983) 85 LR 313; Government Vehicle used by
40,
Committee for and driven by its driveL
49, ChOWdfh,1ry l/ Gillot, (1947) 2, 541; owner present in tbe car which had been delivered to a gara!sc
; 1:;89
for repaIr and the garage was ill possession as bailee at the time of the accident,
730 (HL), 50, Guru GOlJekar v Filomena F Lobo, AIR 1988 SC 1332 : (1988) 3 SCC L
43, Esso Petroleum Co Ltd, v Hall Russel cr Co Ltd, (1989) 1 All ER 37, P 64.

1
168 Law of Torts ChapterV1II Chapter V1II Liability for Wrongs Committed by Others 169
8.2.1.2 Liability ofMaster and qui focit per alium fadt per se are often used, but I do not think that they add anything or
that they lead to any different results. The former merely states the rule baldly in two words,
8.2.1.2.1 Principle of Liability and the latter merely gives a fictional explanation of it. 55
Why should a master be held liable for the torts committed by his servant in doing. his In yet another case, Imperial Chemical Industries Ltd v Shatwell, 56 the House of Lords
business even when his conduct is not blameworthy and he has used the greatest possIble
held that if the servant whose wrongful act caused the injury to the plaintiff could not be
care in choosing the servant? One reason for the rule is historical. "T~e ~:atus of a
made liable as he could successfully, on the facts of the case, avail of the defence of
servant maintains many marks of the time when he was a slave. The hablllty of the
volenti non fit injuria, the master also could not be made liable. These two cases are said
master for his torts is one instance. The notion that his (servant's) personality was
to have finally resolved the controversy between "master's tort", and "servant's tort"
. . ".51 An other
merged in that of his family head (master) survived the era 0 f emanC1pat10~ theories by ruling in favour of the latter that it is for the servant's tort that the master is
reason is grounded on public policy that "there ought to be a r~medy agaInst ~o.meone
vicariously liable. 57 But the master will be primarily liable if there is a non-delegable
who can pay the damages,,,52 and the master is expected to be In a better posmon for
duty laid on him by common law or statute or when he is negligent in making selection
paying the damages than the servant. 53 A third reason is expressed'In t he maxIms . of his servant. 58
Respondeat Superior and quifocit per alium focit per se. In the words of Chelmsford,
LC: 8.2.1.2.2.1 Extent of Liability
It has long been the established law that a master is liable to thir~ pe~son.s for an~ injury or The law is settled that a master is vicariously liable for the acts of his servants acting in
damage done through the negligence or unskillfulness of a servant a~nng 111 hIs master ~ emplo~.
the course of employment. Unless the act is done in the course of employment, the
The reason of this is, that every act which is done by a servant 111 the course of his duty IS
regarded as done by his master's orders, and, consequently it is the same as if it were the master's servant's act does not make the employer liable. In other words, for the master's liability
own act, according to the maxim, qui focit per alium focit per se. 54 to arise, the act must be a wrongful act authorised by the master or a wrongful and
unauthorised mode of doing some act authorised by the master. If the servant, at the
In Stavely Iron & Chemical Co v jones,55 where the question was whether a crane time of the accident, is not acting within the course of employment but is doing
driver was negligent or not in operating the crane which resulted in injury to a fellow something for himself, the master is not liable. 59
worker, Denning, LJ in the Court of Appeal expressed views to the effect that the master
could be held liable even if the crane driver was not negligent. The other two Lords This statement is an echo of the principle stated by Salmond in his work on Torts.
Justices (Hodson and Powel, LJJ) based their judgment on the finding that the crane Salmond further stated that 'a master is liable even for acts which he has not authorised
driver was negligent. The House of Lords dismissed the appeal of t~e master an~ upheld provided they are so connected with acts which he has authorised that they may rightly be
the finding of negligence of the crane driver but disapproved the Vl~WS of Denmng, L.J. regarded as modes-although improper modes-of doing them. 6o explanation by
After quoting the relevant passage from the judgment of Dennmg, LJ, Lord ReId Salmond has gained importance and has given rise to 'dose connection test'
observed: determining the question whether a wrongful and unauthorised act by servant can be
regarded as a wrongful and unauthorised mode of doing some act authorised by the
If this means that the appellants could be held liable even if it were held that the crane driver 61
was not himself guilry of negligence, then I cannot accept that vie:"" of course, an employer may master or as wholly independent of it. It is the link of the master's business with the
be himself in fault by engaging an incompetent servant Of not havll1g a proper system of work or servant's wrongful act which makes the master liable. So, the to obtain a
in some other way. But there is nothing of that kind in this case. De.nning, ~.J. ~p?ears to judgment against the master "must establish a relationship the servant's act
base his reasoning on the maxim qui focit per alium focit per se, but,.111 my view It IS rarely the master's business. The question will be whether the servant was just doing the job
profitable and often misleading to use Latin maxims in that way. It IS a rule of law that an badly or not doing the job at all, doing own thing instead. Considerations of time,
employer, though guilty of no fault himself, is liable for damage ~one by the fault Dr
negligence of his servant acting in the course of employment. The maxims respondeat superzor place, equipment and purpose will all be relevant to this purely factual determination.,,62
In other words, if the unauthorised and wrongful act of the servant is not so connected
with the authorised act as to be a mode of doing it, but is an independent act, the master
51. Holmes, Common Law, pp 179 (180). is not responsible; for in such a case the servant is not acting in the course of the
52. Holmes, Common Law, p 9. . .
53. The master these days is very often a firm or a corporation with cover of msurance. In dlmpertal
56. Imperial Chemica/Industries Ltd v Shatwell, (1965) AC 656: (1964) 2 All ER 999.
Chemical Industries Ltd v Shatwell, (1965) AC 656 (685): (1964) 2 All ER 999 (HL), Lor Pearce
57. Clerk & Lindsell, Torts, 15th Edn, pp 183, 184.
observed: "The doctrine of vicarious liabiliry has not grown from any very dear, logical or legal
principle but from social convenience and rough justice. The master having (presumably for his own
58. Imperial Chemical Industries Ltd. v Shatwell, (1965) AC 656: (1964) 2 All ER 999.
benefit) employed the servant, and being (presumably) better able to make good any damage which may 59. Sitaram Motilal Kalal v Santanu PrasadJaishankar Bhatt, AIR 1966 SC 1697; 1966 AC] 89 (93). See
occasionally result from the arrangement is answerable to the world at large for all the torrs committed further, State ofMaharashtra v Kanchanmala VijaysingShirke, AIR 1995 SC 2499: (1995) 5 Scale 2, p 5 :
(1995) 5 SCC 659.
by the servant within the scope of it." See further Rose v Plenty, (1976) 1 All ER 97 (CAl: 1976 ACJ
387 (392): 1975 430. 60. Salmond on Torts, 1st Edn, (1907), pp 83, 84 referred in Lister v Hes!ey Hall Ltd, (2001) 2 All ER
769, p 775 (HL).
54. Bartomhill Coat Co v lvJcGuire, (1858) 3 Macq, 300 (306).
61. Lister v Hesley Hal! Ltd, supra. See further, p 183, post.
55. Stavely Iron & Chemical Co vJones, (1956) 1 All ER403: (1956) 2 WLR479 (HL).
62. Weir, Case Book on Tort, 5th Edn, p 222.

+
170 Lau! VIII VIII Liability for Others 171

In Pushpabai Purshllttll'm the

72
Court referred to of Crossville Motor Services
Ltd.,73 that the owner is not only liable for if that IS
servant acting in the course of his is with the owner's
consent driving his owner's purposes. Supreme
Court then said 74
the court. The extension
case was such a
of the
owner as
instructions in np'"'Ar~

8.2.1.2.2.2 Course
The commonest cases days of vicarious are those a master is
for of his servant in in the course of

63. Co v Leorwrd LOc/i-htlrt. AIR ]943 PC 63; State /J J(anch,mmala

72. 1C)77 SC 1735 ; (1977) 2
SC 2499 ; (1995) 5 Scale p 5 ; (l995) 5
64. pp 776. 777. further title 8.2.1.2.2.6,
73. Ormrod lJ Clmsmlle Motor Services Ltd., (J 953) 2 AJI ER 753; (1953) 1 WLR 1120.
65. 777 (Lord
66. Ilkiw 1) Samuels, (1963) 2 879 (889) ; 1 WLR 991; Rose lJ 1976 ACJ 387 (392);
74. 1'",h",ahO'1 Pun-hottam Vdeshi v & Lo PVI 1977 SC 1735 (1744):
2 SCC 745.
(1976) 1 WLR 141; (1976) 1 All ER (CA).
75. La,mC/7tJu;rV. (1972) 2 Ali ER 606 : (1973) AC 127; (1972) 1217 (HL). See furthet,
67. Dubai Aluminium l.td u Stlltlam, (2002) 3 WLR 1913, Pl" 1920, 1921 (HL); see also, The Cmholic
text and footnotes to 50, 167,
Child and others v. Various Gtlimants (Fe) and the Institute Brothers Christian
76. v TJordan, 1945 PC 168.
[20121 UKSC 56.
77. Olga Hall v and Andrew AIR 1941 PC 103.
68. Dubai Aluminium Ltd lJ Salaam, (2002) '~/LR 1913, P 1%1.
78. Amita Bhandari v VOl, AIR 2004 67 ; 2004 ACJ 2020.
69. lJ Edward Box & Co Ltd, (1951) 1 TLR 789 ('793); l'u'hlJ'ah,~' Purshottam Udeshi v
79. See, text and footnotes 85 and 86 below.
Co, AIR 1977 SC i/35 (1744) ; (1977) 2 scc
80. Joel v Morison, (1834) 6 C & P 501, p 503 (Parke, B).
70. See, text and footnotes 54 to 57, supra.
81. Morris v ClV Martins & Sons Ltd, (1'965) 2 All ER 725 ; (1966) 6 (1965) 3 WLR 276 (CA)
71. See, text and footnotes 59 to 63, supra.
(Lord Denning); Sitaram Motilal Kala! v Samanu Prastld Jaishankar 1966 ACJ 89(94)(SC).

t
172 Law of Torts Chapter VIII ChapterVm Liability for Wrongs Committed by Others 173

Another mode of may be to apply the close connection test to see whether Here the unauthorised and wrongful act was done, not in furtherance of
wrongful act of servant was so connected with the master's business it will be employers' business, but in furtherance of the employees' industria! dispute to
. .
just to impose VICanous on t he master. 82 pressure on the employers to satisfy their demands. Such a conduct was held to be a
In the case a joint tort committed by two persons, only one ?f whom is negation of carrying out some act authorised by the master, albeit in a wrongful
employee, what is for vicarious responsibi~ity is that the c?mbmed conduct of unauthorised mode.
both the tort-feasors which is sufficient to conStitute a tort was m the course of
employee's employment and not whether that part of the act which wai3 committed b.y In Beard v London General Omnibus Co,87 the was injured by the negligent
employee amounted to a tort was in the course of employment. The reason IS driving of the conductor of an omnibus, who, at the end of a journey, on his own
that in the case torts both are responsible for the tortious conduct as initiative, and in the absence of the driver, took charge of the and drove it
a and it is not necessary to distinguish between actions of the different tort- round through some neighbouring bye-streets apparently with the intention of turning
feasors. 83 But would not be responsible his employee's tort unless all the it round, to be ready for the next journey. It was held that the masters were not liable for
the negligence of the conductor in driving the omnibus as he was not to drive
features of the wrong necessary to constitute the tort had o~curred in the c?urse ~f
employment. the master is not liable if the acts of his servant for whiCh. he IS the vehicle. In this case the driver also did not authorise or conductor to drive
responsible do not in amount to a tort but only amount to tort when lmked the vehicle and apparently he was not negligent in leaving the vehicle in charge of
to other acts which were not performed in the course of the employee's employme~t.83 conductor. It could not, therefore, be said that the driver was negligent in driving the
An act an employee carried out with the intent of assisting a tort .c~~ld not b~ Itself vehicle. As regards the conductor, the act of driving the vehicle was outside his scope of
amount to a free-standing tort to give rise to vicarious responSibIlIty and. It .was employment for it was clearly an act which he was not authorised to perform and so his
undesirable to develop new principles of primary tortious liability to extend the ViCarIOUS negligence could not make the master liable. In contrast in Ricketts v Thomas Tilling
< 84 Ltd, sS where the master was held liable, the facts were that the conductor of an omnibus
of an employer.
drove the omnibus with permission of the driver who was sitting beside him for the
The appellants in General Engineering Services Ltd. v Kingston and Saint Andrew purpose of turning it in the right direction for the next journey and in that process by
Corp,85 owned certain Jamaica. A fire broke out in the said his negligence the vehicle mounted a foot pavement and injured a person. It will be
premises on which the informed the local. fire brigade .. The fire noticed that in this case the master's liability was for the negligence of the driver whose
brigade took 17 minutes in reaching the appellants' premises wh~ch was at a dls~ance of wrongful act in permitting the conductor to drive vehicle was an unauthorised mode
1V2 miles. The normal time for covering this distance was 3Yz mmutes. By the tlme the of performing the authorised act of driving the vehicle for the master's business. Both
fire brigade the were completely destroyed by The reason why the these cases were referred to by the Supreme Court in Sitaram Motilal Kalal v
firemen took 17 minutes of 3V2 minutes in covering the distance was that they Santanuprasad Jaishankar Bhatt,89 where the facts were that the owner had his
were operating a 'go slow' poticy as part of industrial action. They had drive~ to the car to a driver for plying it as a taxi. The driver the taxi to the for
premises by moving slowly forward, stopping, th~n moving slowly forward aga:n, then the R.T.O.'s office for driving test. The accident happened when the
stopping and so on umil they the premises. On these facts the questlOn was
while giving the driving test. The driver was then not in the It is
whether the respondents, as employers of the firemen, were vicariously liable to the
facts that at the time the accident happened, the car was not being used as a taxi for the
appellants or whether, in other words, the fireme~ acted in ~he course of employment.
owner's business. The car was then engaged in the work of the cleaner which had no
In negativing the liabiliry of the respondents the Pnvy Counc11 observed:
connection whatsoever with the owner's business. The driver in lending the car to the
Their (the firemen's) unauthorised and wrongful act was to pro.lon~ the time ta~en ~y t~e cleaner for taking a driving test did an act which he was not employed to np:rto"m
journey to the scene of the fire, as to ensure that they did not arnve m tIme to extl:1~U!sh It,
thus clearly acted beyond the scope of his employment which was to drive the car as a
before the buildin a and its contents were destroyed. TheIr mode and manner of dnvmg, the
slow progression of stopping and starting, was not so connected with .the authorised act, that is taxi. The owner was, therefore, held not liable. The result would have been the same had
driving to the scene of the fire as expeditiously as reasonably posslble, as to be a mode of
r .
perrormmg h
t at act.
86

87. Beard v London General Omnibus Co, (1900) 2 QB 530. For a similar Indian case, see, Nalini Ranjan
Sen Gupta v Corporation of Calcutta, (1925) ILR 52 Cal 983.
82. See, text and footnotes 60,61,64 and 65, pp 169-170. 88. Ricketts v Thomas Tilling Ltd, (1915) 1 KB 644. For similar Indian cases, see, Beharilal v Surinder Singh,
83. Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department, (1999) 1 All ER 929, P 935 AIR 1965 Punj 376; UP Govt v Ram Milan, AIR 1967 All 287; The Ad hoc Committee, The Indian
: (2000) 1 AC 486 : (1999) 2 WLR 540 (HL); see also, Sea Shephard UK v Fish & Fish Ltd, [2015] Association Pool, Bombay v Radhabai Babulal, 1976 AC] 362 (MP); Subhash Chandra Meena v Madan
UKSC 10. Mohan Sood, AIR 1988 Raj 186; KG. Bhaskaran 11 K4 Thankamma, 1973 AC] 539 (Kerala);
84. Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department, (1999) 1 All ER 929, p 939. Prabhavati v Anton Francis Nazarath, AIR 1981 Kant 74; Inderjeet Singh v Kamal Prakash Pawar, A
85. General Engineering Services Ltd. v Kingston and Saint Andrew COIP, (1988) 3 All ER 867: (1989) 1 1989 Born 325; Smt Sitabai Mangesh Koli v Jonve! Abrahclm Soloman, AIR 1991 Born 287. See furthet,
WLR 69: (1989) 1 RLR 35 (PC) text and footnotes 92 and 93 below.
86. General Engineering Services Ltd. v Kingston and Saint Andrew Corp, (1988) 3 All ER 867, P 869.
89. Sitaram Motilal Kalal v SantanuprasadJaishankar Bhatt, (1966) AC] 89 (SC) : AIR 1966 SC 1697.
 Chapter VIII Liability for Wrongs Committed by Others 175
174 Law of Torts Chapter VIII

done the implied authority will obviously be in course of employment.

the driver gone for a picnic or taken the car for giving a joy ride to his friends,90 or had
course of the employment is not limited to the obligations which lie on an employee in
the owner himself lent the car to the driver or cleaner for the latter's private work. 91 In virtue of his contract of service. It extends to acts done on the implied authority of the
all these cases, use of the vehicle would be outside the course and scope of employ.ment. master.,,98 In Pushpabai Purshottam Udeshi v Ranjit Ginning & Pressing Co Pvt Ltd,99
The principle that mere unauthorised mode of doing an authorised act does not go
facts were that the manager of the defendant company was driving a car of the company
outside the course and scope of employment and the master remains vicariously
on its journey from Nagpur to Pandhurna on the Company's business. The manager
responsible is illustrated by the case of State of Maharashtra v Kanchanmala Vijaysing took one Purshottam as a passenger in the car. The car met with an accident because of
Shirke.92 In this case, the accident happened when a government jeep while being used the negligence of the manager in driving the car and Purshottam died. The High Court
on official duty, for bringing the employees of a government office, was driven by a clerk negatived the claim of the dependants of the deceased against the Company on the
with the permission of the driver who was in charge of the vehicle and who had reasoning that the manager in taking the deceased as a passenger was not acting in the
consumed liquor. On these facts, the Supreme Court held that this was a case where an course of employment. The Supreme Court in reversing the decision of the High Court
authorised act was done in an unauthorised manner and the State Government was observed:
vicariously liable. 93 Similarly, when the driver of a truck while on master's business left
In the present case a responsible officer of the Company, the manager, had permitted
the truck in charge of the cleaner and with its engine running, went to a nearby shop for Purshottam to have a ride in the car. Taking into account the high position of the driver who
bringing snacks. Accident happened while the cleaner was on the wheels. The master was the manager of the Company, it is reasonable to presume, in the absence of any evidence to
94
and the insurance company, both, were held liable. Here the negligence was of the the contrary, that the manager had authority to carry Purshottam and was acting in the course of
driver, while he was in the course of employment, in that he left the truck in control of employment. 100
the cleaner. Indeed, it may be said that the owner of the vehicle has been generally held Questions have very often been raised as to whether a servant while going to the place
liable when the driver is negligent in leaving the vehicle in such circumstances that an of work or returning therefrom acts in the course of his employment. Some general
unauthorised person is able to drive it which leads to the accident; the negligence which principles relevant to these questions were formulated by the House of Lords in Smith v
95
makes the owner liable in such cases is that of the driver. The courts also raise a Stages. 101 They are: "(1) An employee travelling from his ordinary residence to his
presumption, which can be rebutted, that a vehicle is driven on the master's business and by regular place of work, whatever the means of transport and even if it is provided by the
96
his authorised agent or servant. The Coutt has, however, cautioned that in cases employer, is not on duty and is not acting in the course of his employment, but if he is
of employers, like the Central and State who are exempted from having their obliged by his contract of service to use the employer's transport, he will normally, in
vehicles compulsorily insured against liabilities arising from accidents, the courts should be the absence of an express condition to the contrary, be regarded as acting in the course
more careful in inferring vicarious responsibility.97 of his employment while doing so. (2) Travelling in the employer's time between
workplaces (one of which may be the regular workplace) or in the course of a peripatetic
In the absence of any prohibition, it may be possible from the circumstances to infer
occupation, whether accompanied by goods or tools or simply in order to reach a
authority in the servant to do certain acts not covered by any positive direction. Acts
succession of workplaces (as an inspector of gas meters might do), will be in the course
of employment. (3) Receipt of wages (though not receipt of a travelling allowance) will
90. Sitaram Motilal Kalal v Santanuprasad jaishankar Bhatt, (1966) ACJ 89 (Se), p 94 : AIR 1966 se indicate that the employee is travelling in the employer's time and for his benefit is
1697. For example, see, Storey v Ashton, (1869) LR 4 QB 476, where the cartman after business hours acting in the course of his employment and in such a case the fact that the employee
instead of taking the cart to the stables drove it in a different direction on the business of the clerk of may have discretion as to the mode and time of travelling will not take the journey out
the master. of the course of his employment. (4) An employee travelling in the employer's time from
91. Sitaram Motilal Kalal v Santanuprasad jaishankar Bhatt, (1966) ACJ 89 (SC), P 94, approving Britt v
Golmaye and Neviel, (1927-28) 44 TLR 294: 72 SJ 122. his ordinary residence to a workplace other than his regular workplace or in the course of
92. State ofMaharashtra v Kanchanmala Vijaysing Shirke, (1995) 5 Scale 2: AIR 1995 SC 2499: (1995) 5 a peripatetic occupation or to the scene of an emergency (such as fire, an accident or
see 659. mechanical breakdown of plant) will be acting in the course of employment. (5) A
93. State ofMaharashtra v Kanchanmala Vijaysing Shirke, (1995) 5 Scale 2, pp 9, 10 : AIR 1995 SC 2499, P deviation from or interruption of a journey undertaken in the course of employment
2504. NB This case is similar to the cases in footnote 88, supra.
94. Skandia Insurance Co Ltd. v Kokilaben Chandravadan, (1987) 2 sec 654 : AIR 1987 SC 1184. See
further, a similar case Sohanlal Passi v P Sesh Reddy, 1996(5) Scale 388: (1996) 5 sce 21 (cleaner and
98. Keppel Bus Co Ltd v Sa 'ad bin Ahmad, (1974) 2 All ER 700 (702) : (1974) 1 WLR 1082 : 1974 RTR
conductor, who was not licensed, driving the vehicle on owners business with the permission of the 504 (PC).
driver. Owner and Insurance Company were both held liable).
99. Pushpabai Purshottam Udeshi v Ranjit Ginning & Pressing Co Pvt Ltd, AlR 1977 SC 1735 : (1977) 2
95. Orissa State Commercial Tramport Corporation v Dhumali Bewa, AIR 1982 Orissa 70; Venkatachalam v sec 745.
Sundarambal Ammal, AIR 1983 Mad 197; Smt Lalwanti v Haryana State, AIR 1985 Punj & Har 71;
100. Purshottam Udeshi v Ranjit Ginning & Pressing Co Pvt Ltd, AIR 1977 SC 1735 (1741, 1743) : (1977) 2
Sampat Reddi v Gudda Meddi, AIR 1989 AP 337.
SCC 745, the expression used is "ostensible authoriry", but the finding at p 1743 makes it a case of
96. Sitaram Motilal Kalal v Santanu Prasadjaishankar Bhatt, (1966) ACJ 89 (SC), P 93 : AIR 1966 SC implied authoriry.
1697.
101. Smith v Stages, (1989) 1 All ER 833 (HL) : (1989) AC 828 : (1988) 2 WLR 529. See further, Rajanna v
97. State ofMaharashtra v Kanchanmala Vijay Singh, AIR 1995 se 2499, p 2504: (1995) 5 Scale 2, pp 8, 9
UOI, AIR 1995 se 1966: (1995) 2 Scale 853 : 1995 Supp (2) SCC 601.
: (1995) 5 SCC 659.

!
176 Law of Torts ChapterVm VIII Liability/or Wrongs Committed by Others 177

deviation or interruption is merely incidental to the journey) will for the time May be his action was mistaken and may be the force he used was excessive, he mio-ht have
being (which may include an overnight interruption) take the employee out of the pushed tl~e ~o~ instead of striking him. But that was acting in excess of ,,~hat was
necessalY m domg an act which he was authorised to do. The excess was not sufficient to take
course of employment. (6) Return journeys are to be treated on the same footing as the act our of the class of authorised acts. lOS
outward journeys".102 The above general propositions are subject to any express
arrangements between the employer and the employee or those representing his But the excess may be so great or the act so outrageous as to take it out of class
102 which the master could be made liable. For example, if in the above case, servant,
interests. Further they are not intended to define position of salaried employees,
with regard to whom the touchstone of payment made in the employer's time is not instead of striking the boy had shot at him, the master could not been made
103 In t he case 104 III
. wh'Ieh tea liable. 109
··c
genera11y slgnmcant. h b ove proposltlons
.. were 1al'd d own
two employees M and S were employed as peripatetic laggers to install insulation at In the case of Riddell v Glasgow Corporation, 110 it was alleged that one Gilmour, a rate
power stations by Darlington Insulation Co. Ltd., the employer. M and S were working C?llector,. employe~ by the Corporation, had the appellant charging her
on a power station in the Midlands when they were taken off and sent to carry out an WIth forgmg a receipt and the Corporation was vicariously liable. question was
urgent job on a power station in Wales. They were paid eight hour's pay for the whether :he pleadings disclosed a triable case. In holding in favour of the Corporation,
travelling time to Wales and eight hour's pay for the journey back as well as the Lord Atkmson observed:
equivalent of the rail fare for the journey, but no stipulation was made as to the mode of
. T~ere. is nothi~g, in my opinion, on the face of the pleading, to show expressly or by
travel. M and S travelled to Wales in S's car. After doing the work they decided to drive
Imphcatlon that C.II~our was ~Iothed with authority to express on behalf of the Corporation to
back to Midlands in the same car. On the way back the car met with an accident because ratepayers an~ opinIOn he mIght form on the genuineness of any receipts which might be
of the negligence of 5 in driving it and M suffered injuries. In an action by M for produced to hIm for payment of rates. It was not shown by the pursuer's pleadings, as I think it
personal injuries, which on his death was continued by his widow, the question was should be, that the expression of such an opinion was within the scope of Gilmour's
whether the employers were vicariously liable for the negligence of S. It was held that as employment; from which it follows, on the authorities, that the Corporation are not responsible
the employees had been paid while driving back to the Midlands they had been for a slander uttered by him in the expression of that opinion. I I I
travelling in the employer's time so the journey back was in the course of A master, as stated above, is liable for acts done by a servant in performance of UHVlJCU
employment and the employers were vicariously liable for the negligence of S. authority derived from the exigency of the occasion, but to ElSten the liability on the
An employee met with an accident while he was on his way to the place of master, a state of facts must be proved to show that such exigency was presen; or from
employment to join his duty. The accident occurred about one kilometre away from the which it might be reasonably be presumed that it was present. 1l2 In Keppel Bus Co Ltd v
ll3
factory when the employee riding a cycle was hit by a lorry of the employers. In a claim Sa 'ad bin Ahmad the conductor employed in one of buses of the appellant struck a
for disablement benefit under the Employee's State Insurance Act, 1948, it was held ~assenger in the eye With. his ticket punch breaking his glasses and causing the loss of the
the accident did not arise in the course of em~loyment of the claimant and he was not Sight of the eye. In a SUIt by the passenger for damages, the facts found were the
entitled to disablement benefit under the Act. 1 5 It will be noticed that the claim was not conductor was rude to an elderly Malay lady in the bus on which plaintiff-
under the general law or under the Motor Vehicles Act against the lorry driver and the respondent remonstrated. An altercation broke out between them, but other passengers
employer where the question would have been whether the lorry driver was negligent prevented them in comi~g to blows. Thereafter, the bus stopped and the lady got off
and whether the accident arose in the course of employment of the lorry driver. and other p~sengers got lfl. The Collector began collecting fares at that stage
started abusmg the respondent who stood up and asked the conductor not to use abusive
8.2.1.2.2.3 Implied Authority language. The respondent then sat down and he had done so the conductor
In general, a servant in an emergency has an implied authority to protect his master's him. The Pri~ Council accepted that the keeping of order amongst the passengers is
property.106 In Poland v John Parr & Sons,107 a carter who had handed over his wagon part of the dunes of a conductor but they did not find any evidence of
the passengers to justifY assault and the master was held not liable. In the words of
and was going home to his dinner, struck a boy whom he suspected, wrongly but on
Kilbrandon:
reasonable grounds, of stealing his master's property. The master was held liable for the
consequences on the that a servant has implied authority at least in emergency
to protect his master's property. In holding the master liable, Scrutoon, LJ, observed: 108. Poland v Jolm Parr & Sons (1927) 1 KB 236, P 244. Referred in Keppel Bus Co Ltd v Sa 'ad bin Ahmad,
supra p 702.
109. Poland v John Parr & Sons, (1927) 1 KB 236, P 245 (Atkin LJ).
102. Smith v Stages, (1989) 1 All ER 833, P 85l. llO. Riddell v Glasgow Corporation, 1911 SC (HL) 35.
103. Smith v Stages, (1989) 1 All ER 833, P 85l. 111. Riddell v Glasgow Corporation,1911 SC (HL) 35, pp 36, 37. Referred in Keppel Bus Co Ltd v Sa 'ad bin
104. Smith v Stages, (1989) 1 All ER 833 (HL) : (1989) AC 828 : (1988) 2 WLR 529. Ahmad, supra p 702.
105. Regional Director ESI Corporation v Francis De Costa, (1996) 6 Scale 473: AlR 1997 SC 432: (1996) 6 112. Bank {}fNew South Wales v Owston, (1879) 4 AC 270, P 290. Referred in Keppel Bus Co Ltd v Sa 'ad bin
SCC 1. Ahmad, supra, p 703.
106. Keppel Bus Co Ltd v Sa 'ad bin Ahmad, (1974) 2 All ER 700, p 702: (1974) 1 WLR 1082 (PC). 113. Keppel Bus Co Ltd v Sa'ad bin Ahmad, (1974) 2 All ER 700 : (1974) 1 W1..R 1082 : 1974 RTR 504
107. Poland v John Parr & Sons, (1927) 1 KB 236 : 136 LT 271. (PC).

b
178 Law of Torts Chapter VIII
Chapter VIII Liability for Wrongs Committed by Others 179
The sign of disorder was that the conductor had gratuitously insulted the respondent
and the respondent had asked him in an orderly manner not to do it again .... She (the Malay Prohibitions fall under two categories: (1) those which limit the scope or sphere of
lady) had by now left the bus, normalcy had been restored, except, apparently, for some
employment; and (2) those which merely affect or restrict the mode of doing the act for
simmering resentment in the conductor which caused him to misbehave himself.. .. On the
story as a whole, if anyone was keeping order in the bus, it was the passengers. The evidence which the servant is employed. If a servant violates a prohibition of the first category, his
falls far short of establishing an implied authoriry to take violent action where none was called act will be outside the course of employment and the master will not be vicariously
£:
lOr.
114 liable; but if the violation by the servant is only of a prohibition of the second category,
the servant's act will still be in the course of employment making the master liable. This
8.2.1.2.2.4 Totality of Circumstances to be Seen distinction was admirably brought out by Lord Dunedin in Plumb v Cobden Flour Mill
The course of employment is not broken simply because the wrongful act is one Co Ltd, 117 when he observed:
which is done the servant for his own comfort and convenience. The act must be seen There are prohibitions which limit the sphere of employment, and prohibitions which only
not in isolation but in the context of all other facts and circumstances to find out deal with conduct within the sphere of employment. A transgression of the prohibition of the
whether it did not form part of the method, though negligent or wrong, of conducting latter class leaves sphere of employment where it was and consequently will not prevent recovery
the work entrusted to the servant. In Century Insurance Co. v Northern Ireland Road of compensation. A transgression of the former class carries with it the result that the man has
gone outside the sphere. 118
Transport Board, (1942) 1 All ER 491 (HL) the driver of a petrol tanker lighted a
cigarette and threw the match while the petrol was being transferred from the tanker to a In Canadian Pacific Railway Co. v Leonard Lockhart, 119 the servant was employed as a
storage tank by means of a delivery pipe. The match ignited some material on the carpenter and general handy-man by the defendant Railway Company. In the course of
ground and the fire spread to the manhole of the storage tank. The owner of the storage his employment, the servant was required to make repairs of various kinds to employer's
tank attacked the manhole with a fire extinguisher. The driver of the tanker without property. He had to make a key for use in a lock in a station far away from his
turning off the stopcock, drove the tanker into the street. The fire followed the trail of headquarters. The Company had kept vehicles to be used by its servants and had issued
petrol from the delivery pipe and when it reached the tanker, the tanker exploded notices to them warning them against using their own cars for Company's business
causing damage to the storage tank owner's car and the neighbouring houses. In unless they had got the car to be used insured against third party risk. The servant
holding that the driver's act of starting and throwing away a lighted match was concerned had a car of his own which was not insured. Instead of using the Company's
negligence in the course of employment, Viscount Simon, LC observed: vehicle, he used his car for going to the station where he had to make the key. On the
Denison's (Driver's) duty was to watch over the delivery of the spirit into the tank, to see that it way, an accident happened. The Company was held liable for negligence of the servant
did not overflow, and to turn off the tap when the proper quantity had passed from the tanker. In in driving his car on the reasoning that though the servant was not employed to drive a
circumstances like these, 'they also serve who only stand and wait'. He was presumably close to the car, he was entitled to use that means of transport as incidental to execution of that
apparatus, and his negligence in starting smoking and in throwing away a lighted match at that which he was employed to do, provided the car was insured; that the prohibition did not
l15
moment is plainly negligence in the discharge of the duties on which he was employed. relate to the servant acting as driver but to the non-insurance of the car and thus "the
In contrast, even a permitted act may be so remote from the duties assigned to the prohibition merely limited the way in which, or by means of which, the servant was to
servant that it may fall outside the course of employment. In Hilton v Thomas Burton execute the work and that the breach of the prohibition did not exclude the liability of
(Rhodes) Ltd. 116 four workmen were permitted to use their master's van for going to the master to third parties.,,120 And in Limpus v London General Omnibus Co, 121 the
work on a demolition site in the country. Mter half a day's work, the workmen decided drivers of omnibuses were furnished with printed instructions saying that "they must not
to go to a cafe seven miles away for tea. When they had almost reached the cafe, they on any account race with or obstruct another omnibus", nevertheless the driver of one of
changed their minds and started to return to the site of work. On the return journey an the defendant's omnibuses did obstruct a rival omnibus and caused an accident in which
accident happened because of the negligence in driving the van and one of them was the plaintiff's horses were injured. The defendants were held liable because what his
killed. The master was not held vicariously liable as the men were on 'a frolic of their driver did was merely an unauthorised mode of doing what he was authorised to do,
own' and the accident did not happen in the course of employment. namely, to promote the defendant's business. Again in Ilkiw v Samuels,122 the facts were
that a lorry driver was employed by a transport company to drive their lorry to a sugar
8.2.1.2.2.5 Effect of Prohibition warehouse, pick up a load of sugar and transport it to its destination. The driver took
It is not the law that whenever a servant does an act which his employer has the lorry to the warehouse and backed it into position by a conveyor belt from which the
prohibited him from doing, the act so done falls outside the course of employment.
117. Plumb v Cobden Flour Mill Co Ltd., (1914) AC 62 (HL).
118. (1914) AC 62, p 67; Ilkiw v Samuels, (1963) 2 All ER 879 (889) : (1963) 1 WLR 991; Rose v Plenty,
114. (1974) 2 All ER 700 (703) : (1974) 1 WLR 1082: 1974 RTR 504 (PC). 1976 ACJ 387, P 394.
115. Century Insurance Co v Northern Ireland Road Transport Board, (1942) 1 All ER 491 (HL). 119. Canadian Pacific Railway Co. v Leonard Lockhart, AIR 1943 PC 63: (1942) 2 All ER 464 (PC).
116. Hilton v Thomas Burton (Rhodes) Ltd., (1961) 1 All ER 74 : (1961) 1 WLR 705. Compare Storey v 120. Canadian Pacific RLlilway Co v Leonard Lockhart, (1942) 2 All ER 464 (601).
Ashton, (1869) LR 4 QB 476; Roberts v Shanks, (1924) ILR 27 Born LR 548; Stanes Motors Ltd v Peter, 121. Limpus v London General Omnibus Co, (1862) 1 H & C 526: 130 RR 641.
(1935) ILR 59 Mad 402. 122. Ilkiw v Samuels, (1963) 2 All ER 879 followed in the Ad Hoc Committee, The Indian Insurance
Companies Association Pool v Radhabai Babulal, 1976 ACJ 362 (MP), pp 365, 366.

t
 ChapterVm Liability for Wrongs Committed by Others 181
180 Law of Torts Chapter VIII
provided lorries to convey their employees to the various
into the The driver stood on the back of the lorry to take site. In the cab of each there was a notice indicating that
the conveyor belt them on the lorry. When loaded, the lorry orders not to carry passengers other the employees of the
had to be a short distance to enable the driver to sheet the load and.to make course of, in connection with, employment, that any person
room for other lorries. A person employed at the warehouse offered to move the lorry. the vehicle did so at his own risk. the driver of the had received dear
The driver accepted offer. That person while moving the lorry, was unable to stop it instructions prohibiting him from other passengers. plaintiff who was
and due to his negligence in a labourer was injured. The driver throughout employed as a labourer by another firm contractors at the aerodrome, while on his
remained at back of the lorry. had strict instructions from his employer way to work, was by the driver to the defendants' lorries for
not to allow anyone else to drive the lorry. The employers were held liable not for the some distance across the aerodrome and while '-''''''''VL''
negligence of the stranger, but for the negligence of the driver in the course of his owing to driver's negligence. In holding that the '-'\CJL\cHU<L'iL~
employment in permitting the stranger to drive the lorry. It will seen that the stranger Asquith, observed:
to drive the lorry for the employer's business and, therefore, the violation
instructions by the driver in that context was only an unauthorised mode doing Taking men other than the defendants' p~,hl,mpPo
what he was employed to do and hence it fell within the course of employment. mode of performing an act of the class was to UCljV1H1,
performance of an act of a class which he was not employed to perform at alL J3]
The question of prohibition has also been considered in some cases in the context of
injury to a person who has been given a lift in the master's vehicle by his driver contrary In both, Twine's case and Conway's case, the giving of lift to unauthorised person
to his instructions. The leading authority now on this question is Rose v Plenty.123 he the driver no connection whatsoever with the master's it fall
outside the course of employment. And this is the main cases
majority decision 124 in this case settles two points: (1) the question of master's liability is
not to be considered from the view point that a passenger taken contrary to instructions and Rose v Plenty,132 where the facts were that the first was employed as
is a trespasser qua the master; and (2) the master is liable only if the passenger is taken in a milk-rounds-man by the second defendants, a Dairy company. There were notices at
the course of employment, although contralY to master's instructions, which means that the Depot making it quite clear that the rounds-men were not allowed to take children
there is a link between the lift given to the passenger by the driver and the master's and young persons on the vehicles or to employ them in the performance of their duties.
business. Before discussing the facts of Rose v Plenty,125 it is convenient to notice two The job of a rounds-man was to drive his float around his round and to deliver milk, to
collect empty bottles and to obtain payment. The plaintiff Rose, a boy of 13, was given a
earlier cases, viz, Twine v Bean's Express Ltd.,126 and Conway v George Wimpey & Co
lift by the first defendant Plenty to help him. Whilst plaintiff was going rollnd some
Ltd. i27 In Twine's case,128 the defendants provided for the use of a bank a commercial
hOllses, the first defendant would go to others. The plaintiff suffered a fracture of the leg
van and a driver on the terms that the driver remained the servant of the defendants and
because of the negligence of the second defendant in the float. The Court of
that the defendants accepted no responsibility for injury suffered by persons riding in
Appeal by a majority decision held the Dairy company vicariously Lord Denning,
the van who were not employed by them. There were two notices in the van, one stating
MR observed:
that no unauthorised person was allowed on the vehicle, and the other, that the driver
had instructions not to allow unauthorised travellers on the van, and that in no event In considering whether a prohibited act was within the course of the employment, it depends
vety much on the purpose for which it is done. If it is done for his employer's business, it is
would the defendants be responsible for damage happening to them. One person who
usualJy done in the course of his employment, even though it is a prohibited act. But if it is done
was not authorised to ride in the van got a lift in the van with the consent of the driver. for some purpose other than his master's business, as for instance, giving a lift to hitchhiker,
Owing to the negligence of the driver, there was an accident and that person was killed. such an act, if prohibited, may not be within the course of his employment. Both Twine v Bean s
In negativing the defendants' liability for negligence of the driver, Lord Green, MR Express Ltd, (1946) 62 TLR 458 : (1946) 1 All ER 202 and Conway v George & Co
observed that his act of driving was no doubt in the course of employment but "the Ltd,133 are to be explained on their own facts as where a driver had a lift to someone else
other thing he was doing simultaneously was something totally outside the scope of his contraty to a prohibition and not for the purposes of the employers. the present case, it seems
to me that the course of Mr. Plenty's employment was to distribute the milk, collect the money
employment, namely, giving a lift to a person who had no right whatsoever to be
and to bring back the bottles to the van. He got or allowed this young boy, Leslie Rose, to do
Gonway v George TV7'
t here. "129,, w zmpey cr d 130 was a1so a SImI
'""'. C0 L t, "1ar case. In t l'
lIS case t h e part of that business. It seems to me that although prohibited, it was conduct which was within
defendants, a firm of contractors, were engaged in building work at an aerodrome, and the course of the employment. 134
In the same case, after referring to Conway's case, L.J., said:
123. Rose v Plenty, (1976) 1 All ER 97 (CA): 1976 AC] 387: (1976) 1 WLR 119.
124. Lord Denning MR and Scarman LJ.
125. Rose v Plenty, 1976 AC] 387 : (1976) 1 WLR 119.
126. Twine v Bean's Express Ltd., (1946) 62 TLR 458: (1946) 1 All ER 202. 131. Conway v George Wimpey & Co Ltd, (1951) 1 All ER 363: (1951) 2 KB 266.
127. Conway v George Wimpey & Co Ltd, (1951) 1 All ER 363: (1951) 2 KB 266. 132. Rose v Plenty, 1976 AC] .387: (1976) 1 All ER 97: (1976) 1 'XILR 119.
128. Twine v Bean's Express Ltd, (1946) 62 TLR458: (1946) 1 All ER 202. 133. COllway v George Wimpey & Co Ltd, (1951) 1 All ER 363 : (1951) 2 KB 266
129. Twine v Bean's Express Ltd, (1946) 62 TLR 458: (1946) 1 All ER 202. 134. Rose v Plenty, 1976 AC] 387 (389) : (1976) 1 All ER 97: (1976) 1 WLR 119.
130. Conway v George Wimpey & Co Ltd, (1951) 1 All ER 363: (1951) 2 KB 266.
182 Law of Torts Chapter VIII
Chapter VIII Liability for Wrongs Committed by Others 183
That was also a case of lift; the person lifted was not in any way engaged, in the course of the lift
or otherwise, in doing the master's business. In the present case, the first defendant, the servant, number of passengers imposed by the rules related only to the manner of performance of
was employed to deliver milk, to collect empties, to obtain payment from the customers. The the driver's duty and did not restrict the scope of It will be seen that the
plaintiff was there on the float in order to assist the first defendant to do those jobs. I would have extra passengers were carried by the driver to promote master's business and the
thought, therefore, that whereas Conway v George Wimpey & Co Ltd, 135 was absolutely correctly 144
decision against the owner is fully justified. These cases also show that principle
decided on facts, the facts of the present case lead to a very different conclusion. 136
applicable to violations of statutory prohibitions is the same as applicable to violations of
137
A full bench case of the Madhya Pradesh High Court seems to have been decided prohibitions proceeding from the master. The only difference that may possibly be
without noticing the distinction between cases where the giving of lift to an drawn is that in the case of a prohibition imposed by a statute or a statutory rule, it may
unauthorised person has no nexus with the master's business and cases where such a be difficult for a third party to presume the existence of any implied authority in the
nexus is present. In this case, the facts were that the owner of the goods that were being servant contrary to the prohibition for everyone is presumed to know law, but in
transported in a motor-truck was given a lift by the driver of the truck without the case of a prohibition imposed solely by the instructions of the master
permission of the owner of the truck. This act of the driver was in contravention of rule notified for general information, it is possible that in certain circumstances a party
105 of the Motor Vehicles Rules providing that no person should be carried in a goods dealing with the servant may reasonably assume an implied authority contrary to the
vehicle other than a bona fide employee of the owner or hirer of the vehicle. A reading of prohibition. But even in cases of statutory prohibitions, are not absolute but
the judgment shows that the view of the Full Bench was that in no case a contravention require the obtaining of a licence or permission from an authority, a may
of the rule will affect the sphere of employment which was "to drive the vehicle in proceed on the assumption that the owner or the servant must have the
execution of the master's business from Udaigarh to Indore.,,138 It is submitted that the . d l'lCence or permlSSlOn.
reqUIre . . 145
question whether the contravention of such a statutory rule or a similar direction of the
master affects merely the mode of doing what the servant is employed to do or pertains 8.2.1.2.2.6 Dishonest and Criminal Acts
to the sphere or scope of employment cannot be decided in the abstract without A master is not liable for a dishonest or criminal act of his servant where the servant
appreciating the facts constituting the contravention. If the driver gives a lift to a person 146
merely takes the opportunity afforded by his service to commit the wrongful act. For
who has nothing to do with the master's business, eg a hitchhiker, as explained by Lord example, if a window deaner steals an article from the room where he is doing the
Denning in Young v Edward Box & Co Ltd, 139 and Rose v Plenty,140 (both cases were 147
window cleaning work, his employer is not liable. Similarly, a servant assaults
referred to by the Full Bench), the giving of lift will not be in the course of employment another, whom he meets in the course of his work, out of personal vendetta, the
but if the lift is l?iven to a person for facilitating the work of the master, as was the case 148
assault has no relation to the master's work, the master is not liable. But if the
in Rose v Plenty, 41 the giving of lift, though unauthorised, will still be in the course of wrongful act is committed for the benefit of the master and while doing his business, the
employment. The Full Bench decision, however, can be supported on the reasoning that master is liable. The master is answerable for every such wrong of the servant or agent as
the owner of the goods, that were being transported, travelled in the truck to facilitate is committed in the course of the service and for the master's benefit, though no express
safe transportation of the goods, which was the business in which the truck was engaged, command or privity of the master is proved.
149
The master will also be liable if the
and, therefore, the giving of lift by the driver to the owner of the goods was for the servant while doing the wrongful act was acting within the apparent scope of his
master's business and fell within the course of his employment. The Punjab & Haryana authority even though the act was done for his own benefit or for the benefit of some
142
High Court had also to consider the effect of contravention of a similar Motor person other than the master. This extension of the course of employment was by
Vehicles Rule. In this case, the person given a lift by the driver of the motor-truck had the House of Lords in Lloyd v Grace, Smith & Co. ISO where the managing clerk of a firm
absolutely no connection with the business in which the truck was engaged and the of solicitors induced a client of the firm to transfer a mortgage to him by lldUUUl';Ulty
master was rightly held to be not liable. Another case that may be mentioned in this representing the nature of the deed and, thereupon, obtained and misappropriated the
143
context is a decision of the Madras High Court. In this case, a tourist taxi authorised mortgage money. The solicitors were held liable as their managing clerk in accepting the
by the Motor Vehicles Rules to carry only 5 passengers, carried 7 passengers and met
with an accident. The owner was held liable on the ground that the restriction as to the
144. Cases mentioned in footnotes 46, 50 and 51, supra.
135. ConwaYlJ George Wimpey &CoLtd, (1951) 1 All ER363: (1951) 2 KB 266. 145. Stone v Taffe, (1974) 3 All ER ]016 (1020,1021): (1974) 1 WLR 1575 (CA).
136. Rose v Plenty, 1976 ACJ 387 (394) : (1976) 1 All ER 97: (1976) 1 WLR 119. 146. Morris v CW Martin 6- Sons Ltd, (1965) 2 All ER 725 (CA) (Lord Denning MR). See further State
137. Narayanla! Lunaji Padiyar v Rukhminibai, 1979 MPL] 405 (FB). See also State of Orissa v Rebati Bank ofIndia v Shyama Devi, AIR 1978 SC 1263, 1979 ACJ 22 : (1978) 3 SCC 399.
Tiwari, AIR 1988 Orissa 242; Bhagwandas v National Insurance Co Ltd, AIR 1991 MP 238. 147. Morris v CW Martin & Sons Ltd, (1965) 2 All ER 725 (CA) (Lord Denning M.R.); De Parrell v
138. Narayanlal Lunaji Padiyar v Rukhminibai, 1979 MPLJ 405, p 408 (para 6). Walker, (1932) 49 TLR 37.
139. Young v Edward Box 6-Co Ltd, (1951) 1 TLR789. 148. Warren v Henrys Ltd, (1948) 2 All ER 935: (1948) W.N. 449.
140. Rose v Plenty, 1976 ACJ 387: (1976) 1 All ER 97: (1976) 1 WLR 119. 149. Barwick v English Joint Stock Bank, (1867) 2 Exch 259 (265) (Willis, ].).
141. Rose v Plenty, 1976 ACJ 387: (1976) 1 All ER 97: (1976) I WLR 119. 150. Lloyd v Grace, Smith & Co., (1912) AC 716 (HL). Followed by the Privy Council in a case of theft:
142. Jiwan Dass Roshanlal v Karnail Singh, 1980 ACJ 445. United Africa Co Ltd v Saka Owade, (1955) AC 130 (PC). Also followed by the Delhi High Court in a
143. KR Sivagami, Proprietor Rajendra Tourist v Mahaboob Nisa Bi, AIR 1981 Mad 138. case of fraud by PA of a managing director: Smt. Niranjan Kaur II New Delhi Hotels Ltd, AIR 1988
Delhi 332, p 34]; Om PrakashJhunjhunwala v UCO Bank (2013) 3 Cal LJ 304: (2013) 4 Cal LT 192.

i
 184 Law of Torts ChapterVm ChapterVm Liability for Wrongs Committed by Others 185

deed was acting within the scope of his authority although fraudulently for his not liable the fraud of the employee. The employee concerned here had no
own benefit. Similar were facts in Uxbridge Permanent Benefit Building Society v or apparent authority to accept on behalf of the Bank or cash for
Pickard, (1939) 2 KB 248 a Solicitor's managing clerk obtained an advance of a deposited in Savings Bank Accounts and the money was not received by him in
sum of £ 500 upon a mortgage of property by producing to a building society;s solicitors normal course of business of the Bank. Indeed, the employee was constituted agent of
a fictitious deed. It was not proved that the solicitor's clerk actually forged the deed, but the plaintiff when she sent the cheque and cash with letter of instructions through him
he must have known that it was a forged document. The clerk had apparent authority for being credited to her Savings Bank Account. The employee's fraud was, therefore,
for all that he did in the matter. It was held that so long the clerk was acting within his not in the course of his employment and all that could be said was that "the fact of his
authority, the master was liable despite the fact the fraud involved forgery. being an employee of the Bank" gave him an opportunity to commit the
referring to these cases, Lord Denning, MR, observed: AB regards or similar acts in relation to goods, the general proposition has been
In consequence of this apparent authority, the firm of solicitors were dearly under a duty to stated to be "that when a principal has in his charge the goods or belongings of another,
deal honestly and faithfully and they could not escape that duty by delegating it to their agent. in such circumstances that he is under a duty to take all reasonable precautions to
They were responsible for the way he conducted himself therein, even though he did it protect them from theft or depredations, then if entrusts that duty to a servant or
dishonestly for his own benefit. 151
agent, he is answerable for the manner in which that servant or agent carries out his
The master's liabiliry in tort for frauds of his servant resembles the principal's liability duty. If the servant or agent is careless so that they are stolen by a stranger, the master is
on contracts entered by his agents. Therefore, if the servant had no actual authority nor liable. So also jf the servant or agent himself steals them or makes away with them.,,156
was acting for the master's benefit and the person injured by the fraudulent or Negligence in the discharge of duty or theft by a servant is with
dishonest act of the servant could not have reasonably regarded the servant as possessing custody of goods by his master is in the course of his employment so master is
any apparent authority in dealing with him, the master cannot be made liable simply liable to the owner of the goods. But if the conduct of the servant entrusted with the
because the acts done by servant were of a class which he was authorised to do on the custody of goods is not blameworthy, and some other servant, who has nothing to do
master's 152 When an employee has neither ostensible nor express authority to with the goods, taking the opportunity of being in service steals them, the master is not
enter into contract and when the fact that the employee needs express authority is liable for the theft by such a servant is not in the course of employment. 157 In United
known to the party, the is not vicariously liable if the employee AfTica Company Ltd v Saka Owoade, 158 the appellant company had expressly entrusted to
fraudulently stating that he has requisite authority the third party servants of the respondent, a transport contractor, at his request, goods for carriage by
153
to enter into a contract. In other words the employer is liable where he has words and the servants stole the goods. The respondent was held liable by the Privy
or induced the injured party to believe that the servant was in lawful Council as the conversion took place in the course of employment. It was observed that
course of the employer's business; but the employer is not liable where such belief there is no difference in the liability of a master for wrongs whether for fraud or any
although it is present, has been brought about through misguided reliance on the servant other wrong committed by a servant in the course of employment, of
himself when the servant is not authorised to do what he is purporting to do in each case whether it was committed in the course of in
he is purporting to do is not within the class of acts the employee in his position is Morris v CW Martin 6- Sons Ltd, 160 the delivered her mink stole to one Bedser
usually authorised to and when the done nothing to represent that he is for getting it cleaned who with the permission the
authorised to do it. 154 defendants that purpose. The defendants' servant who was
In State of Indit{ v Shyama Devi,I55 the plaintiff who a Savings Bank cleaning it stole it. The defendants were liable lor (he
account with the Bank, handed over a cheque and cash to an employee of the Bank as it was in the course of employment. In contrast in Leesh River Tea Co
who was a and of the with a of instructions India Steam Navigation Co LtJ61 owners were not held
and being credited to her account. The employee misappropriated the a stevedore which
false entries in the pass-book. The employee was not in charge of cargo. stevedore was engaged by the
Bank counter and the cheque and cash were not handed over to the and he was in no other way connected
,,-c,-,',,··,,,: concerned. On these facts the Court the Bank was

151. MOrTis v CW Martin & Sons Ltd, (1965) 2 All ER 725 : (1966) 1 QB 716 (CA). See further United 156. MOrTis v CWMartin & Sons Ltd, (1965) 2 All ER 725: (1966) 1 QB 716 (CA) (Lord MR),
Bank of Kuwait 11 Hammond, (1988) 3 All ER 418: (1988) 1 WLR 1051 (CA) where a solicitor gave 157. MorriJ v CW Martin & Sons Ltd, (1965) 2 All ER 725: (1966) 1 QB 716 (CAl, (Salmon, LJ).
false undertaking as security for loan on behalf of a firm of solicitors; as ostensible authority was 158. United Africa Company Ltd v Saka Owoade, 1955 AC 130 (PC).
established the firm was held liable. 159. United Africa Company Ltd v Saka Owoade, 1955 AC 130, P 144; Referred in State Ban!e of India v
152. See for example Koorangong Investments P Ltd v Richardson & Wrench Ltd, (1981) 3 All ER 65: (1982) Shyama Devi, 1979 ACJ 22 (28) (SC).
AC462 (PC). 160. MOrTis v CW Martin & Sons Ltd, (1965) 2 All ER 725: (1966) 1 QB 716.
153. Armagas Ltd 11 Mundogas SA, (1985) 3 All ER 795 (CAl. Affirmed (1986) 2 All ER 385 (HL). 161. Leesh River Tea Co Ltd v British India Steam Navigation Co Ltd, (1966) 3 All ER 593 : (1966) 3 WLR
154. Armagas Ltd 11 Mundogas SA, (1985) 3 All ER 795 (CA);. (1986) 2 All ER 385 (HL) p 394. 642. Referred with approval in State Bank of india 11 Shyama Devi, AIR 1978 SC 1263; 1979 ACJ 22
155. State Bank ofIndia v Shyama Devi, AIR 1978 SC 1263: 1979 AC] 22. (27) : (1978) 3 SCC 399 (SC) .
 Chapter VIII Liability for Wrongs Committed by Others 187
186 Law of Torts Chapter VIII

8.2.1.2.2.7 Doctrine of Common Employment

of the brass plate by him was entirely outside the course of his employment although his
employment did give him an opportunity to steal the plate. The doctrine of common employment has its origin in Priestley v Fowler, 170 which laid
l62 down that a master was not liable to a servant who was injured by the wrongful act of a
The 'close connection test' to which reference has already been made has been applied fellow servant who was at the time in common employment with him. The enactment
in cases of sexual abuse by employees also. In the Canadian case of Bazley v Curry, 163 sexual of the Employers' Liability Act, 1880 introduced in English law a number of exceptions
abuse was committed by an employee of a children's foundation who had been engaged as to the doctrine. The English Courts also did not favour it and restricted its
a parent-figure caring for emotionally troubled children in a children's home. The application. 17l In Secretary of State v Rukhminibai,172 the N agpur High Court refused t~
Canadian Supreme Court held that there was sufficient connection between the acts of apply the doctrine in India in so far as it was abolished in England by the Employers
employee and the employment and, therefore, vicarious liability of the employer was Liability Act. Mter this case, the Indian Legislature enacted the Employers' Liability Act,
established. On hand in another similar case, jacobi v Griffiths, 164 where sexual 1938. The Privy Council in Brocklebank Ltd v Noor Ahmode, 173 left the question open
abuse took in the employee's home working hours and away from the club whether the doctrine of common employment so unsatisfactory both as to its policy and
which was principal place of employment, the Supreme Court not find sufficient as to its practical results ought to be followed at all by the Indian Courts as a part of the
connection between the employee's acts and the employment from the fact that the dub law in India. The doctrine was abolished in England by the Law Reform (Personal
had an opportunity to employee to establish friendship with the and Injuries) Act, 1948. The Privy Council had again to consider the question of the
vicarious liability was held to be not established. Both these decisions and the close application of the doctrine to India in Governor General in Council v Constance Zena
connection test applied in them were referred with approval by the House of Lords in Wells,174 and it was held that it applied in so far as it was not abrogated by the
Lister v Hesley 165 In this case the plaintiffs were resident for a few years at a school
Employers' Liability Act, 1938. Bya restrictive construction of section 3(d) of the Act, it
for boys with emotional and behavioural difficulties, owned by the defendants who was held that where a personal injury is caused to a workman in the normal performance
employed a person to take care of the boys as warden of the school's boarding house. The of his fellow servant's duties, section 3(d) did not apply and did not operate to take away
warden systematically sexually abused the plaintiffs while they were resident at the schooL the defence of common employment in a suit for damages. But the lacuna pointed out
In holding the defendants vicariously liable, the court held that the defendant had by the Privy Council was promptly remedied by the Employers' Liability (Amendment)
undertaken to care for the boys through the services of the warden and there was a very Act, 1951. Section 3 (d) as amended now expressly negatives the defence of common
close connection between his employment and his torts which were committed in the employment when injury is caused by a fellow servant in the normal performance of his
premises of the defendants while he was busy caring for the children in performance of his duties. The Act also introduces a new section 3A making void any collateral agreement
duties. In an interesting case arising out of an arbitral award, Madras High Court l66 excluding or limiting any liability of the employer under the Act. The definition ?f
relying on the Lister v Hesley Hall judgment, has held that in cases of sexual harassment at workman in the Act is very wide so as to include all employees. After the aforesaid
workplace, employer is vicariously liable for its failure to constitute a committee as per the statutory amendments, it can be safely asserted that the doctrine of common
Vishaka guidelines. In Armes v Nottinghamshire County Council l67 the UK Supreme Court employment cannot be applied in India and a master is liable to a servant of.his ~n the
held by a majority verdict of 5 to 1, that a local authority was vicariously liable for the way he is liable to any other person for injuries caused by his employees actmg m the
wrongdoings of foster parents selected by them to take care of a child kept in their custody course of employment. In addition an employer directly owes certain comn:on .Iaw
by the local authority. duties and statutory duties in his em~loyees' favour but these are not cases of Vlcanous
liability and are dealt with elsewhere. 1 5
The close connection test was also applied in Dubai Aluminium Co Ltd v Salaam l68
for holding a firm liable for the fraudulent act of one of its partners which were not 8.2.1.2.2.8 Compulsory Employment
authorised by other partners. It was further applied to hold a nightclub vicariously liable
A master is not liable for the torts committed by a servant whose appointment is
for the act of a bouncer employed by the dub in causing injury by a knife to a patron
outside the dub premises for which he was not authorised. The owner of the club compulsory under the law and when he has practically no power of selection. 176 But the
encouraged the bouncer to be aggressive in ejecting his patrons. This furnished the link
170. Priestley v Fowler, (1837) 3 M. & W. 1.
for holding the owner liable. 169
171. Radcliffo v Ribble Motor Services Ltd, (1939) AC 215.
172. Secretary o/State v Rukhminibai, AIR 1937 Nag 354 (367, 368).
173. Brocklebank Ltd v Noor Ahmode, AlR 1940 PC 225.
162. See p 170. 174. Governor General in Council v Constance Zena Wells, AlR 1950 PC 22.
163. Bazley v Curry, (1999) 174DLR(4th)45. 175. Chapter XIX, title 19. 9, P 637. .
164. Jacobi v Griffiths, (1999) 174 DLR (4th) 71. 176. The master of a ship was generally not liable for this reason under the common law for the neglIgence of
165. Lister v Hesley Hall Ltd (2001) 2 All ER 769 (HL). a pilot in a compulsory pilotage district; The Halley, (1868) LR 2 PC 193 (201); Muhammad ~usufv P
166. Ms Gayatri Balaswamy v ISG Novasoft Technologies Ltd (2014) 5 LW 97: (2014) 6 CTC 602. & OSN Co, (1869) 6 BHC (OC]) 98 (106). Section 15 of the Pilotage Act, 1913 makes the shIpowner
167. Armes v Nottinghamshire County Council, [2017] UKSC 60: [2018] AC 355. and master liable for the negligent acts of compulsory pilots in the same way as they are lIable for
168. DubaiAluminium Co Ltd v Salaam, (2003) 3 WLR 1913 (HL). See further, p 168. [Footnote No. 176 Contd.]
169. Mattis v Pollock, (2003) 1 WLR 2158. See for comments 63 (2004) Cambridge Law Journal, PartI, p 53.

6
188 Law of Torts ChapterV1H ChapterVm Liability for Wrongs Committed by Others 189

merely because the of a servant or evidence indicated collusion or wilful misconduct the whom the
certain work is compulsory under the law he is allowed power of .
c1aIm was ma e.d 180 Th'" I '
IS gent eman s not cover a case were t h e person
h
and the class from which appointment is to be made is sufficiently large to give by the employee of the insured was not a fellow servant. Such a situation arose in
177
the employer a practical power of selection. The lies berweeH virtually Morris v Ford Motor Co,181 where the court by a that though a contract of
directing that a person be appointed and in limiting regulating the of the indemnity including a contract of insurance by its very nature implied a right of
master by prescribing qualifications of the servant and/or mode of selection. subrogation as a incident of that contract, yet the contract might, by
implication, exclude this and that such an implication arose when the contract was
8.2.1.2.2.9 Vicarious Liability of State
operative in an industrial setting where recovery of damages the employee by
The State is liable vicariously torts committed by its servants in the course of exercise of of subrogation would lead to industrial it would be
are certain areas where the State is not liable and the subject unjust to the employee No brings a suit
178
PI<,pv.rnf"rt> against his servant to enforce the reasons that very
often he is covered by the servant is not in a position to and a suit against
8.2.1.3 Master's Right to Recover Damages fom Servant the servant in case of industrial is likely to
The law a term in contract berween and employee relations with the workers. The Insurance
will exercise reasonable care in of work and, if the master is of subrogation
obliged to pay damages to a party for wrongs committed by servant, he can recover the amount
. Engan
m 1 d . 182
recover that amount from the servant in a suit for damages for breach of the implied
term. It was so held by the House of in Lister v Romford Ice and Cold Storage Co In India it has been held that when an officer of the government or a authority
Ltd, 179 In this case, the facts were that a lorry driver employed by a company took his acts maliciously and oppressively causing harassment and agony to plaintiff, the
father, a fellow servant, with him as a mate. In backing the lorty, he his father by government and authority made liable for damages must recover the amount the
negligent driving. The father recovered in an action the company for 183
officers who are responsible. reason is that the government or a
the negligence of the driver. The brought an action against the driver authority is to pay damages the burden really falls on the citizens as taxpayers and
'-"UlllHJlJe. that, as joint tort-feasor, it was (1) to contribution from him under there is no justification for burdening them for malicious and oppressive conduct of
section of Law Reform (Married Women and Tortfeasors) Act, 1935, and (2) to officers.
damages for breach of an term in his contract of service that he would use
reasonable care and skill in driving. The House of Lords held that the driver was under a 8.2.2 lnaejfJelxat.cnt Contractor
contractual obligation of care to his employer in the performance of his duty as a driver
and that the Company was entitled to recover from the driver damages for breach of that An independent contractor is one who to produce a result without
contractual obligation even if the employer had insurance cover against his liability to being in any way controlled as to the method by which attains that result. In the
the party injured by the negligence of the servant. In England the decision was not well actual execution of the work he is not under the order or control the for whom
received a Committee was constituted to study its implications. ISO The Committee does it, but uses own discretion in things not specified bet01·ehand.
did not recommend nullification of the decision by legislation for it thought the agent who works under the supervision, control
employers and their insurers who would be the real plaintiffs by subrogation, in the the traditional distinction berween an independent contractor
interests of good industrial relations were not likely to unreasonably exploit their rights subject to many qualifications which have been discussed
under the said decision. In consequence of the Committee's report, the members of the If an independent contractor as distinguished a servant is PIT,nl,nVf'n to some
British Insurance Association agreed not to institute a claim against the employee of an work and in the course the work or employer is
insured employer in respect of death or injuty to a fellow employee unless the weight of

181. Morris v Ford Motor Co, (1973) 2 All ER 1084 (l088) : (1973) 1 792 : (1973) 2 WLR.
[Footnote No. 176 Contd.]
182. Clerk & Lindsell, Tort, 15th Edn, p 154.
negligence of voluntary pilots under the common law. Section 15 has been held to create the 183. Lucknow Development Authority v MK Gupta, AIR 1994 SC 787, pp 799, 800 : (1994) 1 SCC 243 :
relationship of master and servant between the shipowner and the compulsory pilot : Workington (1994) 13 CLA 20. Followed in Gaziabad Development Authority v Balbir Singh, AIR 2004 SC 2141
Harbour and Dock Board v Towerfield (Owners), (l95l) AC 112 : (1950) 2 All ER 414 (HL); Esso : (2004) 5 SCC 65; See also, T Subramani v St,1te of Tamil Nadu (2012) 3 LW 849, (followed on the
Petroleum Co Ltd v Hall Russel 6- Co Ltd, (1989) All ER 37 (HL), pp 58-60 : (1989) AC 643. point of what is misfeasance in public office); Ganesh Prasad v Lucknow Development Authority,
177. Martin v Temperley, (1843) 4 QB 298. (2012) 90 ALR (SUM 9) 5 : (201l) 89 ALR (SUM 64) 31; Vijay Mallappa Muchandikar v Belf(aum
178. For vicarious liabiliry of the State see Chapter III, title 3.8, The State and its Officers: p 48. Urban Development Authority, ILR 2011 KAR 5476: (2012) 2 AIR Kant R 513: (2012) 2 KCCR
179. Lister v Ramford Ice and Cold Storage Co Ltd, (1957) AC 555 (1957) 2 \l('!LR (HL). 1065.
180. Morris v Ford Motor Co Ltd, (1973) 2 All ER 1084 (1088) : (1973) 1 QB 792 : (1973) 2 'IX'l.R 843 184. Pe1forming Right Society Ltd. v Mitchell 6- Booker Ltd., (1924) 1 KB 762 : 131 LT 243 : 40 TLR 308.
(CA). 185. Titles 8.2. 1.1.1 (A) (i) (a) and 8.2.1.1.2, pp. 160-163, supra.
190 Law of Torts Chapter VIII
Chapter VIII Liability for Wrongs Committed by Others 191
186
not answerable. Employer's right to inspect works, to decide as to the quality of
materials and workmanship, to stop the works or any part thereof at any stage, to employs.193 Further if the task which an independent contractor is employed to I-lLjl1VUH
modifY and alter them, and to dismiss disobedient or incompetent workmen employed carries an inherent risk of damage to the person or property of another and risk
by the contractor, does not render him liable to third persons for the negligence of the ~ventuates and causes such damage, the employer may be liable even though the
lS7 mdependent contractor exercised reasonable care in doing what he was employed to do,
contractor in carrying out the work One employing another is not liable for his
collateral negligence unless the relationship of master and servant existed between because the employer authorised the running of the risk and the employer may be in
1S8
them. An employer who commissions work to be done near a highway which if done breach of his own duty for failing to take the necessary steps to avoid the risk which he
194
with ordinary care by a skilled workman presents no hazard to anyone and does not authorised. The so-called exceptions to the rule that the employer is not liable for
constitute a nuisance but which if done negligently may endanger users of the highway, tort of the independent contractor are not, therefore, technically exceptions are cases
and who employs an apparently competent independent contractor to do the work is where the employer is made liable for his own fault or breach of duty and not vicariously
189 for the fault or breach of duty of the contractor. They are called exceptions only as a
not liable for the negligence of that contractor in doing it. The plaintiff who was
matter of convenience and are as follows:-
visiting a block of flats on the business of one of the tenants sustained injury through the
breaking of the cylinder band of a hydraulic lift:. The landlord was in occupation of (1) Where the employer retains his control over the contractor and personally
those parts of the building which were not occupied by tenants. The lift was looked after interferes and makes himself a party to the act which occasions the damage;195
by a firm of engineers. The cause of the accident was the faulty repacking of the cylinder
(2) Where the thing contracted to be done is itself wrongful. In such a case the
band by a mechanic of the firm of engineers. It was held that the landlord was not liable
190 employer is responsible for the wrong done contractor or his servants, is
to the plaintiff but the firm of engineers was.
liable to third persons who sustain damage from the wrong doing. ]96 For if a
Exceptions.-It has been said that there are exceptions to the general rule that an man employs a contractor to build a house, who builds it so as to darken another
employer is not liable for the torts of his independent contractor. Properly analysed, the person's windows, the remedy is not against the builder, but the owner of the house.
cases which are referred to as exceptions are those in which either the employer is in
A gas company, not authorised to interfere with streets of Sheffield, their
some way party or privy to the tort or is in breach of some duty primarily laid on him.
contractor to open trenches therein. The contractor's servant, in doing so, left: a heap of
For example, if the employer is negligent in selecting a proper person as a contractor or a
stones, over which the plaintiff fell and was injured. It was held that the defendant
servant, he is in breach of his duty and if the contractor or the servant commits a tort, he
would be liable for breach of this duty. Similarly, if the duty laid on the employer by c?~pany was liable, as the interference with the streets was in itself a wrongful act. 197
common law or statute is to produce a given result or to see that care is taken as Similarly, when the trustees of a temple employed a contractor to get electric connection
distinguished from duty to take reasonable care, he is not absolved from his duty by for use of lighting and mike arrangements in the temple from the well of an agriculturist
employing with reasonable care a contractor or a servant to do the job. These are without informing and obtaining the permission of the Electricity Board and a person was
instances of non-delegable duties or duties primarily laid on the employer and he would injured as the wires used by the contractor snapped, the trustees were held liable as the act
be liable if there is a breach of these duties whether he appoints a servant or an of diverting electricity without permission of the Board was in itself an illegal act; 198
191
independent contractor. Apart from statute, the non-delegable duty, which may be (3) Where legal or statutory duty is imposed on the employer, he is liable for any
termed as special duty, "arises because the person on whom it is imposed has undertaken injury that arises to others in consequence of its having been negligently performed by
the care, supervision or control of the person or property of another or is so placed in the contractor. 199
relation to that person or his property as to assume a particular responsibility for his or
No one can get rid of such a duty by imposing it upon an independent contractor.
its safety in circumstances where the person affected might reasonably expect that due
The employer remains liable to those who are injured by the non-performance the
care will be exercised".192 In these situations the duty is not merely to use reasonable care
duty, even though the contractor has agreed to indemnifY him. 2oo
but to ensure that reasonable care is used even by an independent contractor whom he

186. Pickard v Smith, (1861) 10 CBNS 470, 480 : 4 LT 70; Morgan v Girls' Friendly Society, (1936) 1 All ER 193. Northern Sandblasting Pvt Ltd v Harris, supra.
404; Guru Govekar v Filomena F Lobo, AIR 1988 SC 1332, P 1334 (para 26) : (1988) 3 SCC 1 : 194. Northern Sandblasting Pvt Ltd v Harris, (1997) 71 ALJR 1428.
(1988) 2 ACJ 585. 195. Burgess v Gray, (1845) 1 CB 578.
187. Reedie v L 6- /llW Ry, (1849) 4 Ex. 244; Hardaker v Idle District Council, (1896) 1 QB 335. 196. Ellis v Sheffield Gas Consumers Co., (1853) 2 E & B 767.
188. Dalton v Angus, (1881) 6 App Cas 740 (829) : 44 LT 884; Padbury v Holliday 6- Greenwood, (1912) 28 197. Ellis v Sheffield Gas Consumers Co, (1853) 2 E & B 767.
TLR494. 198. Patel Maganbhai Bapujibhai v Patel Ishwarbhai Motibhai, AIR 1984 Guj 69.
189. Salsbury v Woodland, (1969) 3 All ER 863: (1970) 1 QB 324. 199. Hole v Sittingbourne and Sheerness Ry, (1861) 6 H & N 488; Gray v Pullen, (1864) 10 CB NS 470;
190. Haseldine v Daw, (1941) 2 KN 343. Tarry v Ashton, (1876) 1 QBD 314; Dalton v Angus, (1881) 6 App Cas 740, 831; Hardaker v Idle
191. Cassidy v Ministry ofHealth, (1951) 2 KB 343, P 363: (1951) 1 All ER 575. District Council, (1896) 1 QB 335: The Snark, (1900) p 105; Matania v National Provincial Bank,
192. Kondis v State Transport Authority, (1984) 154 CLR 672, p 687; Northern Sandblasting Pvt. Ltd. v (1936) 2 All ER 633: (1937) 106 LJKB 113: 80 S] 532. Murphy v Brentwood District Council, (1990)
Harris, (1997) 71 ALJR 1428, P 1435 (Brennan C.].) 2 All ER 269, pp 279, 280 : (1990) 2 WLR 944.
200. Bower v Peate, (1876) 1 QBD 321, 326; Gray v Pullen, (1864) 5 QB & S 970.
192 Law of Torts ChapterVm Chapter VIII Liability for Wrongs Committed by Others 193

If a man does work on or near another's property, which involves danger to

in its construction, could not be opened, and the plaintiffs' vessel was prevented from
property unless proper care is taken, he is liable to the owners of the property for damage
navigating the river, it was held that the defendants were 207 Defendant was the
resulting to it from failure to take proper care, and is equally liable if, instead of doing
occupier of a house, from the front of which a heavy lamp projected feet over the
the work himself, he procures another to do it for him?Ol .
public foot-pavement. In November, as plaintiff was walking along, the on her
Where a person employs a contractor to do work in a place where the public are in the and injured her. In the previous August the had employed an experienced gas-
habit of passing, which work unless precautions are taken, cause danger to the fitter to put the lamp in repair. The fastening by which the lamp was to the
public, an obligation is thrown upon the person who orders the work to be done to see post w~ i? a decayed state. It was held that the plaintiff was entitled to recover damages
that the necessary precautions are taken, and if the necessary precautions are not for the IllJUry caused. A person maintaining a lamp projecting over a highway for his
he cannot escape liability by seeking to throw the blame on the contractor?02 It is the own purposes was bound to maintain it so as not to be dangerous to the public, and if it
duty of a person who is causing such work to be executed to see that they are pro~erly caused injury owing to want of repair, it was no answer on his part that he employed a
competent p~rson to put It
. III
. a state 0 f ' 208 A contractor was
repair.
-
employed to make up
carried out so as not to occasion any damage to persons passing by on the highway.2 3
a f?ad, and m carrymg out the work, he negligently left on the road a heap of soil
Two houses adjoined, built independently, but each on the extremity of its owner's
unhghte~ ~nd unprotected. A perso~ walking along the road after dark fell over the heap
soil and having lateral support from the soil on which the rested. This continued
and was m)ured. It was held that hIS employers were liable, because, from the nature of
for twenty years and aftetwards some alterations were made in one of the buildings
the work, danger was likely to arise to the public using the road unless precautions were
openly and without deception. More than twenty years after the alterations the owners 209
taken.
of the adjoining house employed a contractor to pull down their house and excavate, the
contractor being bound to shore up adjoining buildings and make good all damage. The plaintiff was driving a buggy along a street in Calcutta by and fell into a
contractor employed a sub-contractor upon similar terms. The house was pulled down, hole opened in the road, which was left unfenced and lighted, and was
and the soil under it excavated to a depth of several feet, and the plaintiffs' stack being badly injured. It appeared that the road had been opened by an in the
deprived of the lateral support of the adjacent soil sank and fell, bringing down with it employment of the Government, had applied to, obtained permission from,
the plaintiffs' house. It was held that the were entitled to damages from the the Corporation to open the road subject to the condition that he employed one of the
owners the adjoining house and contractor for the injury.204 A district council contractors licensed by the Municipality to do such work, and such a contractor had
employed a contractor to construct a sewer for them. In consequence of his negligence been employed. The plaintiff sued for damages, making the Secretary of State, the
in carrying out the work a gas-main was broken, and the gas escaped from it into the Corporation and the contractor, defendants. It was that Secretary of State was
house in which the plaintiffs (a husband and wife) resided, and an explosion took place, not liable, because he came within established rule one who employs another to
by which the wife was injured, and the husband's furniture was damaged. In an action do what is legal must be presumed to employ that other to do this in a legal
by the plaintiffs against the district council and the contractor, it was held that the way; that Corporation who had a statutory imposed
district council owed a duty to the public (including the plaintiffs), so to construct the and maintain roads were liable to the a breach of
sewer as not to injure the gas-main; that had been guilty or a breach of this duty; and that the contractor was also liable. 210
that, notwithstanding that had delegated the performance of the to the (4) Where the work contracted to done is its nature
205 to cause danger to
contractor, they were responsible to the plaintiffs for the breach. A was empowered others, in such cases there is a duty on the part of the to take all reasonable
under an Act to make a drain from his premises to a sewer, by cutting a trench across a such danger, and if the contractor 211
highway, and it up the drain should be completed. For purpose, he eg with a neighbour's right of the
employed a contractor, whose it was filled up improperly, in consequence to use every reasonable that care skill may
of which damage ensued to B. It was that A was responsible in an action by B?06 works, so as to protect neighbours from .
Where the defendants, a company, were authorized, an Act of Parliament, to responsibility thus cast on him by
construct a railway and employed a contractor to actual of being responsible for
construct a bridge, but bridge, from some defect
207. Hole v Sittingborne and Sheerness Rly., (1861) 6 H & N 488.
208. Tarry v Ashton, (1876) 1 QBD 314.
201. Honeywill and Stein Ltd v Larkin Brothers Ltd., (1934) 1 KB 191, 199: 150 LT 771: 50 TLR 56. 209. Penny v Wimbledon Urban Council, (1899) 2 QB 72.
202. Penny v Wimbledon Urban Council, (1899) 2 QB 72, 76 : 15 TLR 483.
210. Corporation of the Town of Calmtta v Anderson, (1884) ILR 10 Cal 445; Keough v Municipal Committee
203. Per Smith, L], in Holliday v National Telephone Co, (1899) 2 QB 392, 400 : 15 TLR 483; Pickard v
ofLa~ore, (l883) PR No. 108 of 1883. See Municipal Committee ofLahore v Nand Lal, (1913) PR No.
Smith, (1861) 10 CBNS 470: 142 ER 535.
88 of 1913, where a Municipality was held liable for the of a main. See Municipal Council of
204. Dalton vAngus, (1881) 6 App. Cas 740: 44 LT 884. Vzzagapatnam v Foster, (1917) ILR 41 Mad 538.
205. Hardaker v Idle District Council, (1896) 1 QB 335; Holliday v National Telephone Co., (1899) 2 QB
211. Hughes v Percival, (1883) 8 App Cas 443: 49 LT 189; Bower v Peate, (1876) 1 QBD 321; Dalton v
392 : 15 TLR 483. See The Snark, (1900) p 105, and The Utopia, (1893) AC 492.
Angus, (1881) 6 App Cas 740 : 142 ER 535; Penny v Wimbledon Urban Council, (1899) 2 QB 72,78;
206. Gray v Pullen, (1864) 5 B & S 970.
Patel Maganbhai Bapuji Bhai v Patel Ishwarbhai Motibhai, AIR 1984 Guj 69 .
 ChapterVnr Liability for Wrongs Committed by Others 195
194 Law of Torts Chapter VIII
to a third party for injuries sustained by the negligent driving of the vehicle by an
be vigilant and careful, for he is liable for injuries to his neighbour caused by any want of employee of the repairer although he is an independent contractor. 219
prudence or precaution?12 But the employer will not be liable if the contractor was not
acting within the scope of his contract, but was a trespasser when he did the act 8.2.3 Principal and Agent
comp1ame· d o.f213
The:e are no special rules dealing with the liability of the principal for the torts
Defendant liable.-Where defendant employed a contractor to pull down an old commItted by the agent and the rules discussed earlier in the context of master's liability
house and erect a new one, and the contractor expressly undertook to support the for the t?rts of his servant apply here also. "Just as the tort must be committed by a
plaintiffs house, and to be liable for all damage, it was held that the defendant was liable servant eIther under the actual control of his master or while acting in the course of his
for the damage?14 The defendant employed a contractor to pull down his house and employment, the act of the agent will only make the principal liable if it is done within
rebuild it. The contractor in fixing a staircase negligently cut into the party-wall between the scope of his authority. ,,220 The law on this point has been stated to be that" an agent
the defendant's house and the adjoining house of and this caused the defendant's will make the principal responsible so long as the agent does the act within the scope of
house to fall and to the plaintiffs house. It was held that the defendant was his authority or does so under the actual control of the principal.,,22o The word "agent"
liable upon the ground that the work ordered by him was necessarily attended with risk is commonly used in dealing with cases of owner's liability when he lends his vehicle to a
to the plaintiffs house, and that it was, therefore, the defendant's duty to see that proper friend and also in the context of cases relating to vicarious liability for fraud. 221 In the
precautions were taken to to that house, and that he could not get rid of former class of cases the use of the word "servant" will be inappropriate, and therefore,
215
the responsibility by delegating the to a third person. the word "agent" is used as a matter of usage. In the latter class of cases the master is
liable when the fraud is committed by the servant within the scope of his actual or
Where the plaintiffs had procured the defendants, as independent contractors, to take
ostensible authority and this test of liability is more in line with the liability of agent
photographs of the interior of a cinematograph theatre, and owing to the defendants'
under the law of contract. These cases have already been discussed. 222 It need hardly be
negligence the premises were damaged by fire, it was held that the plaintiffs were liable
stated that the principal will be liable for a wrongful act of his agent which is authorised
to the owners of the theatre for the damage, and were entitled to recover what they paid
by him or is subsequently ratified by him. This is in addition to his liability for torts
from the defendants?16 committed by the agent within the scope of his agency even though they are not
Sub-contractor.-Where the defendant employed two sub-contractors to carry out authorised or ratified by him. 223
certain work on the roof of a building and the plaintiff, who was employed by one of the
sub-contractors, was injured due to the negligence of the employees of the other sub- 8.2.4 Company and Director
contractor, and it was found that was no safety arrangement made either between Liability of Company.-The ordinary principles of agency apply to companies which
the defendant and his sub-contractors or between sub-contractors inter se, it was held
are consequently liable for the negligence of their servants, and for torts committed by
that the defendant as well as both the sub-contractors owed a duty of care to the plaintiff them in the course of their employment. 224
and were liable to him for negligence, each having left to others the taking of necessary
c . 217 Personal liability of Director.-Directors are personally responsible for any torts which
safety precautions.
they themselves may commit or direct others to commit, although it may be for the
(5) Where liability is imposed by statute for example under the provisions of the benefit of their company.225
Workmen's Compensation Act, 1923, if the principal employs a contractor, such
contractor's servants are able to recover compensation from the principal without 8.2.5 Firm and Partner
prejudice to the principal's right to be indemnified by the contractor, if the contractor is 226 227
himself liable under the Act. 218 Having regard to sections 94 and 95 of the Motor Both under the English and the Indian law, a firm is liable for torts committed
Vehicles Act, 1939 the owner of the motor vehicle and his insurer have been held liable by.a partner in the ordinary course of the business of the firm. Thus, where a partner,
actmg on behalf of the firm, induced by bribery a clerk of the plaintiff, a competitor in

212. Hughes v Percival, (1883) 8 App Cos 443: 52 LJQB 719, supra p 493. 219. Guru Govekar v Filomena F Lobo, AIR 1988 SC 1332 : (1988) 3 SCC 1.
213. Black v Christchurch Finance Co., (1894) AC 48. 220. Sitaram Motilal Kalal v SantanuprasadJaishankar Bhatt, AIR 1966 SC 1697: (1966) 3 SCR 527.
214. Bower v Peate, (1876) 1 QBD 321: Lemaitre v Davis, (1881) 19 Ch D 28I. 221. See title 8.2.1.1.5. Lending of Chattel, p 166.
215. Hughes v Percival, (1883) 8 App Cas 443, at p 455: 49 LT 189 overruling Butler v Hunter, (1862) 7 H 222. See title 8.2.1.2.2.6: 'Dishonest and Criminal Acts', p 183.
& N 826. See to the same effect, Dhondiba Krishnaji v Municipal Commissioner ofBombay, (1892) ILR 223. See titles 8. 2.1.2.2.1, 8.2.1.2.2.2, 8.2.1.2.2.3, 8.2.1.2.2.4, pp 169-178.
17 Born 307. See also Ullman v The Justices of the Peace for the Town of Calcutta, (1871) 8 Beng LR 224. Lindley on Companies, 6th Edn., Vol I, p 257.
265, where the contractor was held not negligent. 225. Vide Lindley on Companies, Vol 1, p 348.
216. Honeywill and Stein Ltd v Larkin Brothers Ltd, (1934) 1 KB 191 : 50 TLR 56. 226. Partnership Act (English), 1890, (53 & 54 Vic. c. 39) sections 10 & 12.
217. Mc Ard£e v Andmac Roofing Co., (1967) 1 All ER 583 : (1967) 1 WLR 356. 227. The Indian Partnership Act (IX of 1932), section 26.
218. Workmen's Compensation Act, 1923, VlII of 1923, sections 12(2) and 13.

t
196 Law of Torts Chapter VIII

and in breach of his duty to the plaintiff, to

communicate secret and information in regard to the plaintiff's business,
whereby the loss, it was held that the firm was lia~le for the .228
Whether the act of the partner is one done in the course of the busll1ess of the IS a
question to be determined on the same considerations as those which determine
responsibility of a master for the acts of his servants.
The relation of partners inter se is of principal and agent, and therefore, each
partner is liable for the act of his Every partner is liable to make compensation
to person in respect of loss or damage arising from the neglect or fraud of any
partner in the management .
busmess fium. 229

8.2.6 Guardian Ward

Guardians are not by mmors under SYNOPSIS
Charge. 230 But guard'lans can sue t:
lOf V'-JL~VH<U their charge on 9.1 Damages .................................... 197 9.1.7 Provisional Award ......... 257
their behalf.23! 9.1.1 Introduction ................. 197 9.1.8 Damages in Actions of
9.1.2 Causation ...................... 198 Contract and of Tort .... 258
by 9.1.3 Remoteness ...... ...... .... ... 204 9.2 Injunction .................................. 258

8,
In actions of wron those who the tortious acts are equally liable with those who 9.1.4 Measure of Damages ..... 222 9.3 Specific Restitution .................... 260
23 9.1.5 Interim Damages .......... 254 9.4 Joint and Several Tort-Feasors ..... 260
commit the wrong. A person who procures the act of another is legally responsible for
its consequences (1) if he knowingly and for his own ends induces that other person to 9.1.6 Compensation under 9.5 Contribution between Wrong-
commit an actionable or (2) when the act induced is within the right of the Section 357, Code of Doers ......................................... 265
immediate actor and, not wrongful so far as the actor is concerned, but is Criminal Procedure 9.6 Remedies under the Consti-
1973 ............................. 255 tution ......................................... 267
detrimental to a third party and the inducer procures his object by the use of illegal
·
means dlrecte d agamst
. t hat t h'If d party. 233
THERE are rwo kinds of remedies for torts, namely, judicial and extra-judiciaL
Judicial remedies are remedies which are afforded by the courts of while extra-
judicial remedies are those which are available to a party, in certain cases of torts, by
his own acts alone. Extra-judicial remedies are: (i) expulsion of trespasser, (ii) fe-entry
on land, (iii) recaption of goods, (iv) distress damage feasant and (v) abatement of
nuisance. These remedies are discussed at appropriate places in subsequent
But these remedies, which are in the nature of self-help, should not be
resorted to, for the person resorting to them may frequently exceed his rights and may
be faced with a case, civil or criminal alleging that he took the law in his own hands. It
may also create problems of law and order. Judicial remedies are: (1) awarding of
damages; (2) granting of injunction; and (3) specific restitution of property. Damages
and injunctions are merely two different forms of remedies against the same wrong;
and the facts which must be proved in order to entitle a plaintiff to the first of these
remedies are equally necessary in the case of the second. The third remedy is the
228. Hamlyn v Houston & Co, (1903) 1 KB 81. . . specific restitution of property.
229. The Partnership Act, 1890 53 & 54 Vic. c. 39, sections 10, 11 and 12; The Indian Partnership Act,
1932 (IX of 1932), s. 26.
230. Luchmun Das v Narayan, (1871) 3 NWP 19l. 9.1. Damages
231. Madhoo Soodan v Kaemoliah, (1868) 9 WR 327.
232. Kashee Nath v Deb Kristo, (1871) ]6 'W'R 240; Goiab Chand v Jeebun, (1875) 24 WR 437; Wharton v 9.1.1 Introduction
Moona Lalf, (1866) 1 Agra HC 96.
233. Allen v Flood, (1898) AC 1 96: 77 LT 717: 14 TLR 125; Nam Kee yAh Fong, (1934) ILR 13 Ran
175.
In a suit for damages in a tort case, the court awards pecuniary compensation to the
plaintiff for the injury or damage caused to him by the wrongful act of the defendant.

197

6
 Chapter IX Remedies 199
198 Law of Torts Chapter IX
shown any sign of reaction even if the doctor had waited for half an hour the test
Mter it is proved that the defendant committed a wrongful act, the plaintiff would be dose. The plaintiff's suit, therefore, failed against the doctor. plaintiff had also sued
entitled to compensation, 1 may be nominal, though he does not prove any specific the Post Office and that part of the case is considered in this Negligence in
damage or injury resulting to him, in cases where the tort is actionable per se. But even not telling the patient of the risk involved in a surgical operation or treatment would not
in these cases when specific damage is alleged and in all other cases, where tort is not justify award of damages on materialisation of the risk after the or treatment if
actionable per se, and it becomes the duty of the plaintiff to allege the damage it can be shown that the patient would have proceeded with surgety or treatment
resulting from the wrongful act for which he claims damages, the court's enquiry even if he had been told of the risk involved for the claim for damages would then fail
resolves around in deciding three questions: (1) Was the damage alleged caused by the on the ground of causation.
4

defendant's wrongful act? (2) Was it remote? and (3) What is the monetary
compensation for the damage? The same principle applies where the defendant/employer's negligence lies in not
taking prescribed safety precautions. In Me Williams v Sir William Arrol 6- Co,s the
9.1.2 Causation claim was by the widow of a workman of the defendants, who fell from a steel tower
which was being erected and died. The defendants were at fault in not providing safety
If the damage alleged was not caused by the defendant's wrongful act the question of belts, the use of which would prevented the accident. Evidence was, however, given
its remoteness will not arise. In deciding the question whether the damage was caused by that throughout for a long period when belts had been provided the deceased never
the wrongful act, the generally accepted test is known as 'but for' test. This means that if them and a finding was reached that the deceased would not have worn a belt on
the damage would not have resulted but for the defendant's wrongful act, it would be date of the accident even if it had been available. On this finding it was held
taken to have been caused by the wrongful act. Conversely it means that the defendant's defendant's breach of duty in not providing safety belts did not cause the accident and
wrongful act is not a cause of the damage if the same would have happened just the the defendants were not liable. Refuting the argument that if a person is under a duty to
same, wrongful act or no wrongful act. Thus, when a doctor is negligent in failing to see provide safety belts and fails to do so, he cannot be heard to say 'even if I had done so
and examine a patient and give him the proper treatment, the claim will still fail if it is they would not have been worn', Lord Reid observed:
shown on evidence that the patient would have died of poisoning even if he had been
treated with all due care. The doctor's negligence in such cases is not the cause of the If I prove that my breach of duty in no way caused or contributed to the accident, I cannot be
liable in damages. And if the accident would have happened in just the same way, whether or
patient's death? In Robinson v P~~fOffice3 the plaintiff, who was employed by the Post not I fulfilled my duty, it is obvious that my failure to fulfil my duty cannot have caused or
Office, slipped as he was descending a ladder. The ladder had become slippery due to contributed to it. No reason has ever been suggested why a defender should be barred from
negligence of the employer. The plaintiff sustained a wound on his left shin. Some eight proving that his fault, whether common law negligence or breach of statutoty duty, had nothing
hours later, he visited his doctor and was administered antitetanusserum (ATS). The to do with the accident.
recognised test procedure then was to wait for half an hour after injecting a small
Me Williams case, though technically correct on principles, is an extreme case
quantity to see whether the patient showed any reaction before administering a full dose.
insofar as it found against the plaintiff on the hypothetical question whether the
The doctor did not follow this procedure but waited only a minute after the test dose
deceased workman would have used the safety belt which the defendants ought to
before administering the balance of the full dose. The plaintiff did not suffer any have provided. In actual practice and speaking generally, such a "causal uncertainty is
reaction for about three days but thereafter he suffered from encephalitis which is a apt to be resolved by the strong sympathetic bias for the victim of a proven
possible though rare consequence of ATS injection. In a suit for damages against the ,,6
wrong doer .
doctor, it was found that the doctor was not negligent in deciding to inject ATS His
negligence lay in not waiting for half an hour after the test dose. But the negligence did It must here be mentioned that the wrongful act of the defendant need not have
not cause the onset of encephalitis for it was almost certain that when the plaintiff did been the sole or principal cause of the damage. The defendant would be liable for the
not show any reaction for three days after administration of full dose he would not have damage if his wrongful act caused or materially contributed to it notwithstanding that
there were other factors for which he was not responsible which had contributed to
7
the damage.
1. In Yat!ava Kumar v Divisional Manaf(er, National Insurance Co Ltd, (2010) 10 SCC 341, the Supreme
Court has distinguished between "compensation" and "damages" to mean that "the expression
compensation may include a claim for damages but compensation is more comprehensive. Normally
damages are given for an injury which is suffered, whereas compensation stands on a slightly higher 4. Rosenberg v Percival, (2001) 75 ALJR 734.
footing. It is given for the atonement of injury caused and the intention behind grant of compensation 5. Mc Williams v Sir William Arrol & Co (1962) 1 All ER623: (1962) 1 WLR295: 1065] 218.
is to put back the injured party as far as possible in the same position, as if the injury has not taken 6. Fleming, Torts, 6th Edn, p 173.
place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the 7. Bonnington Castings v Wardlaw, (1956) AC 613 (HL) : (1956) 2 WLR 707: (1956) 1 All ER 615; Me
approach will be slightly more broad based than what is done in the matter of assessment of damages." Chee v National Coal Board, (1972) 3 All ER 1008 : (1973) 1 WLR 1 (HL); Wilsher v Essex Area Health
2. Bernett v Chelsea and Kensington Hospital Management Committee, (1968) 1 All ER 1068 ; (1968) 2 Authority, (1988) 1 All ER 871 : (1988) AC 1074 (HL); Page v Smith, (No.2) (1996) 3 All ER 272
WLR422: III 5] 912. (CA).
3. Robinson v Post Office (1974) 2 All ER 737: (1974) 1 WLR 1176: 1175] 915(CA).
200 Law of Torts Chapter IX Chapter IX Remedies 201
The 'but for' test is, however, not of universal application and a lesser degree of causal
jointly and severally,12 Chester v Afihe,J3 is yet another case where in the special
test may be applied in special circumstances to prevent injustice. In Me Ghee v National
circumstances 'but for' test was not followed. In this case the claimant, a patient suffered
Coal Boar/' the workman contracted dermatitis after some days spent in cleaning brick
from severe back pain. An eminent neurosurgeon whom she consulted advised for
kilns. The employer was not at fault for the hot and dusty condition of the brick kilns.
surgery but negligently failed to inform her of the one to two per cent risk of paralysis
The employer's fault lay in not providing washing facilities as a consequence of which
inherent in such an operation. The operation was conducted without any negligence but
the employee had to cycle home unwashed. It was not proved and could not have been
unfortunately the very risk which the surgeon had failed to materialised and the
proved with the knowledge relating to onset of dermatitis then available that the
patient suffered partial paralysis. In the claim for damages the claimant did not prove
washing would have been effective to prevent onset of dermatitis. But it was found that
that she would never have had the operation had she been told about the risk and all
the absence of washing materially increased the risk of the disease and on this finding the
that she proved was that she would then not have consented to the operation which was
defendant was held liable. Thus, in the special circumstances of this case the 'but for' test
performed resulting in the injury. Although the risk, of which the patient was not
was not insisted upon and no distinction was drawn between making a material
warned, was not created or increased by the failure to warn yet it was held that
contribution to c~usi~g the disease and m~terial~y i~creasing the risk of contrac.tin~ it.
patient was entitled to succeed. In this case there was a breach of duty on the part of the
This is how lvIe Ghee s case was understood III Fazrchzld v Glenhaven Funeral Servzces. In
doctor towards the patient in not informing her of the risk and the patient would have
this case the claims were by or on behalf of the estates of former employees. In each case
remained remediless had the 'but for' test of causation been applied and, therefore, in
the employee had worked at different times and for differing periods under more the special circumstances that test was not applied. 14
one employer. Both employers were in breach of duty towards the employee to take
reasonable care to take all practicable measures to prevent him from inhaling asbestos In Gregg v Scot,15 the House of Lords was faced with a new problem whether in the
dust because of known risk that the dust if inhaled may cause mesothelioma. The law of clinical negligence a patient who has suffered an event is entitled to
employee was found to be suffering from a mesothelioma because of inhalation of recover damages for loss of a chance of more favourable outcome. By majority that
excessive asbestos dust during his employment but he was unable to prove on the question was answered in the negative. The facts in this case were that the patient had a
balance of probabilities due to current limits of scientific knowledge that his lump under his arm which he showed to Dr. Scott who thought it was a collection of
mesothelioma was the result of inhaling asbestos dust during his employment by one or fatty tissue. That was the most likely explanation but unfortunately it was wrong. The
other or both of his employers. The House of Lords held that in the circumstances the patient had cancer of a lymph gland which was discovered a later. He was treated
'but for' test would have led to result by denying redress to the employee and with chemotherapy and was still alive after nine years when appeal was heard. Dr.
could be departed from and a degree of causal connection applied, namely that by Scott was found negligent in excluding the possibility the growth might be
materially increasing the risk of the disease each employer had materially contributed to cancerous. He should have referred the patient to a routine check up in a hospital which
causing the employee's disease. Both the employers were, therefore, jointly held liable. would have the matter. The patient however failed to prove on a balance of
This case was followed in Barker v Saint Gobbain Pipelines pic, 10 where the claimant was probabilities that Dr. Scott's negligence had affected the course of his illness or prospects
the widow of a man who had died from mesothalioma contracted as a result of exposure of survivaL The patient's alternative submission that loss of a chance of a favourable
to asbestos dust while working as an employee under two employers and while self- outcome should itself be a recoverable head of damage in cases of clinical negligence was
employed. No apportionment was allowed to reduce damages in respect of the period of negatived.
self employment and the injury was held to be indivisible. But in appeal ll this decision It need hardly be stated that if out of the two competing factors (of which one is
of the Court of Appeal in Barker's case was reversed. It was held that the extent of tortious) the evidence fails to establish that the tortious factor has caused or aggravated
liability of each defendant would be commensurate with the degree of risk for which the damage it will have to be held that the damage was caused solely by other factor.
that defendant was responsible. Ascertainment of the degree of risk would be an issue of In Kay v Ayrshire and Arram Health Board/ 6 the plaintiffs son a child aged two years
fact to be decided by the trial judge. Accordingly, the defendant's liabilities were several was treated for pneumococcal meningitis in a hospital managed the defendant. In
and were for a share of the damage consequent on the contracting of Mesothalioma by course of the treatment the child was administered negligently an overdose of penicillin.
the victim according to the share the risk created by their breaches of The UK The child suffered deafness and the suit was for damages on that account. The evidence
Parliament overruled the decision of House of Lords by enacting the Compensation Act, failed to establish that an overdose of penicillin could have caused or aggravated deafness
2006, wherein the responsible person was held liable for the whole of damage, contrary whereas it was established that deafness was a common sequela of pneumococcal
to what was held in the Baker's case. In effect, the responsible persons were held liable

8. Mc Ghee v National Coal Board, (1972) 3 All ER 1008 : (1973) 1 WLR 1 (HL). 12. Zurich Insurance PLC UK Branch v International Energy Group Ltd, [2015] UKSC 33; see also,
9. Fairchild v Glenhaven Funeral Services (2002) 3 All ER 305 (HL); see also, Sienkiewicz 11 TRIGGER - BAI v Durham (and other connected cases) [2012] UKSC 14; Grie/(UK) Ltd v Sienkiewicz
[2011] UKSC 10 : [2011] 2 AC 229; Durham v SAl (Run ojjj Ltd [2012] UKSC 14: (Administratrix o/the Estate ofEnid Costello Deceased) [2011) UKSC 10.
13. Chester v Afiher (2004) 4 All ER 587 (HL).
867.
10. Barker v Saint Gobb,zin Pipelines pic (2005) 3 All ER 661 (CA). 14. Kay v Ayrshire andArram Health Board (2004) 4 All ER 587, pp 596, 604-612, 616.
15. Gregg v Scot, (2005) 2 WLR 268 (HL).
II. (2006) 3 All ER 785 (H.L.).
16. Kay v Ayrshire andArram Health Board (1987) 2 All ER 417 (HL).
202 Law o/Torts Chapter IX
Chapter IX Remedies 203

meningitis. The House of Lords the dismissal of the suit observing that since
was negligently given excess oxygen. The plaintiff was later on discovered to be suffering
according to the expert evidence, an overdose of penicillin had never caused deafness,
from an incurable condition of the retina resulting in near blindness. The plaintiff's
and the child's deafness had to be regarded as resulting solely from the meningitis. The
retinal condition could have been caused by excess oxygen as also by five other
question whether a particular factor has caused or materially contributed to the damage
17 conditions which had afflicted the plaintiff. In an action for damages against the Health
has to be answered on a balance of probabilities. In Hotson v East Buck Shire Area Authority, the House of Lords held that there was no presumption that the retinal
Health Authority, 18 the plaintiff when aged about 13 years had injured his hip by a fall. condition was caused or materially contributed by the excess oxygen and the burden lay
The plaintiff was taken to a hospital run by the defendant. The injury was not correctly on the plaintiff to prove the causation link. 22 In the case of Page v Smith (No.2), 23 the
diagnosed and the plaintiff was sent home. After five days of severe pain the plaintiff was plaintiff who was involved in a motor accident due to negligence of the defendant did
taken back to the hospital. nature of the hip injury was such that it caused not suffer any physical injuty. He had, however, earlier suffered from chronic fatigue
deformity of the hip joint restricting mobility and a major permanent disability syndrome (CFS) which was exacerbated by the accident. The balance of medical opinion
developed by the age of 20. The plaintiff claimed damages for negligence of the medical was to the effect that the accident could have materially contributed to the recrudescence
staff. The defendant admitted that delay in diagnosis amounted to negligence but denied of plaintiff's CFS and the plaintiff was awarded damages on that basis.
that the delay had adversely affected the plaintiff's long term condition. At the trial it
was found that even if the medical staff had correctly diagnosed when the plaintiff first Different problem arises when the events causing damage to the plaintiff are not
came there was still a 75% risk of the plaintiff's disability developing and so on the simultaneous but successive. Such a problem is illustrated by the case of Baker v
balance of probabilities even correct diagnosis and treatment would not have prevented Willoughby,24 In that case the plaintiff's leg was injured in 1964 when he was knocked
the disability from occurring. The trial judge and the Court of Appeal however, awarded down by a car which was negligently driven by the defendant. In 1967, before the action
the plaintiff 25% of the full value of the damages awardable for the disability on the came for trial, the plaintiff was shot in the same leg during an armed robbery and the
ground that the negligence in the diagnosis denied the plaintiff a 25% chance of full limb had to be amputated well above the knee. It was submitted by the defendant that
recovety. The House of Lords reversed this award holding that when on a balance of no loss or injmy suffered thereafter by the plaintiff could be attributed to his tort since
probabilities, which was the correct test on a question of causation, the plaintiff failed to its effect was obliterated by the gunshot injury followed by amputation. The trial judge
prove that the negligence in diagnosis caused the permanent disability he was not rejected this submission and allowed full damages taking both past and future losses into
entitled to any damages on that account. It was also held that had the plaintiff succeeded account on the basis of continued weakness and pain in the left ankle and the possibility
in proving that the negligence in diagnosis the damage he would have been of later development of arthritis in the leg. The defendant's submission, however,
entitled to full In the words of Lord Ackner: succeeded in the Court of Appeal but on further appeal, the House of Lords restored the
Where causation is in issue, the judge decides that issue on the balance of the probabilities.
decision of the trial Judge. Lord Reid (with whom Lord Guest, Viscount Dilhorne and
There is no point or purpose in expressing in percentage terms the certainty or the near certainty Lord Donovan agreed) made the following observations:
which the plaintiff has achieved in establishing his cause of action. Once liability is established If the later injury suffered before the date of the trial either reduces the disabilities from the
on the balance of probabilities, the loss which the plaintiff has sustained is payable in full. It is injury for which the defendant is liable, or shortens the period during which they will be
not discounted by reducing his claim by the extent to which he has failed to prove his case with suffered by the plaintiff, then the defendants will have to pay Jess damages. But if the later injury
100% certainty.19 merely becomes a concurrent cause of the disabilities caused by the injury inflicted by the
Further, when the plaintiff's injury is attributable to a number of causes including the defendant, then in my view they cannot diminish the damages. 25
defendant's negligence, the combination of the defendant's breach of duty and the Lord Pearson in the same case said:
plaintiff's injury does not give rise to any presumption that the defendant's negligence The supervening event has not made the plaintiff less lame or less disabled nor less deprived
caused or materially contributed to the injury and the burden of proving the causative of amenities. It has not shortened the period over which he will be suffering. It has made him
link between the defendant's negligence and the plaintiff's injury remains on the more lame, more disabled, more deprived of amenities. He should not have less damages though
plaintiff.zo The link can be inferred from evidence on balance of probabilities but cannot being worse off than might have been expected. 26
21
be held to be proved on the basis of any presumption. In Wilsher's case, the plaintiff a The policy consideration leading to the decision was that otherwise the second tort-
child who was prematurely born suffered from various illnesses including oxygen feasor could (on the principle that a tort-feasor is entitled to take his victim as he finds
deficiency. While in a special baby unit of the hospital where he was born, the plaintiff him) reduce the damages against him on the ground that he was only responsible for the
removal of an already damaged leg, and not for removal of a sound leg; thus if the first
17. Hotson v East Buckshire Area Health Authority, (1987) 2 All ER 909 : (1987) AC 750 : (1987) 3 WLR tort-feasor escaped liability, the plaintiff could not get full compensation for the injuries
232 (HL).
18. Hotson v East Buckshire Area Health Authority, (1987) 2 All ER 909: (1987) AC 750: (1987) 3 WLR
232 (HL). 22. Wilsher v Essex Area Health Authority, (1988) 1 All ER 871 : (1988) AC 1074 (HL).
19. Hotson v East Buckshire Area Health Authority, (1987) 2 All ER 909, P 922. 23. Page v Smith (No.2) (1996) 3 All ER 272 (CA) : (1996) 1 WLR 855.
20. Wilsher v Essex Area Health Authority, (1988) 1 All ER 871 : (1988) AC 1074 (HL). 24. Baker v Willoughby (1969) 3 All ER 1528: (1970) AC 467: (1970) 2 WLR 50 (HL).
21. Wilsher v Essex Area Health Authority, (1988) 1 All ER 871 : (1988) AC 1074 (HL). 25. (1969) 3 All ER 1528, P 1534.
26. (1969) 3 All ER 1528, P 1535.

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204 Law of Torts Chapter IX
Remedies 205

done to him. Further in this case the second tort-feasor i.e. the robbers, even if traceable, of the 1 two
were in all probability men of straw and a suit against them for damages would have as ,,-,-,vi'U",,, to one view IS
been a fruitless exercise. Baker's case, though not overruled, came up for strong criticism the test of remoteness. on this view consequences are too remote a
in Joblin v Associated Dairies Ltj7 which was a case where the plaintiff received a back reasonable man would not have trot·pc,>"" them. !
3
to the other
injury arising due to the defendant's breach of sratutory duty and the injury impaired u .... >~>nuHa is liable for consequences of
the plaintiffs capacity to work by 50%. During the pendency of the plaintiffs action for reasonable man would
trial, he was found suffering from a spinal disease which was unconnected with the back
but to
injury but which rendered him wholly to work. The House of Lords held that the
it is more convenient to first notice
defendants were not liable for any loss of earnings suffered by the plaintiff after the onset
of the spinal disease rendering him wholly unfit to work. The principle that was applied
was that in assessing damages, the vicissitudes of life are to be taken into account so that m
the plaintiff is not overcompensated and that a supervening illness known at the time of case, the
the trial is a known vicissitude about which court ought not to speculate when it in which contained a
fact knew. The criticism of Baker's case in Joblin's case is that it failed to apply the and there
vicissitude principle, and failed to notice the compensation payable under the Criminal
Injuries Compensation Scheme. The distinction between the two cases on facts is that in
Baker's case the first and the second injuries were both from tortious acts whereas in
Joblin's case the second injury was from a supervening illness. Baker's case, though
shaken by Job/in's case, is still an authority in case of disabling injuries arising from
28
successive and independent tortious acts and it may find additional support in India
where there is no scheme statutory or otherwise corresponding to Criminal Injuries
Compensation Scheme as applied in England.
In a case where the claimant was to asbestos dust while working for several
years with different employees and developed asbestosis but had claimed damages for
personal injury against only one of the employers on the ground of negligence and
breach of statutory it was held by the court of appeal that the defendant would be
liable only to the extent that he had contributed to the disability?9
There is much to said for the view expressed by Laws LJ that there is no decisive
test of causation and law is that every tortfeasor should compensate the injured
claimant in respect of that loss or damage which he should be justly held responsible and
that the elusive conception of causation should not be frozen into constricting rules. 3o

9.1.3 Remoteness

9.1.3.1 Foreseeability
There would be manifest injustice if a person were held responsible for all
consequences of his act which in theory may be endless. A person is, therefore, held In this which was restricted to ~~U'O'Ft~ (there was another suit
responsible in law only for consequences which are not remote. A damage or injury being discussed the trial
though caused by a tortious act of the defendant will not qualifY for award of damages if did not and could not be eXiDe(:tea
27. Joblin v Associated Dairies Ltd (1981) 2 All ER 742: (1982) AC 794: (1981) 3 WLR 155 (HL).
28. (1981) 2 All ER 742, p 760, (Lord Russel); p 764 (Lord Keith), 31. Rigby v Hewitt, (1850) 5 Ex. 240, p 243: 19 LJ Ex 291 (Pollock, CE); Greenland v Chaplin, (1850) 5
29. Holtby v Brigham & Cowan (Hull) Ltd, (2000) 3 All ER 421 (2000) 1 CR 1086 (CA). See further Ex. 243, p. 248 : 82 RR 655 (Pollock, CE).
Murrell v Healy, (2001) 4 All ER 345 (CA.) (when an injured person suffers subsequent further injury 32. Smith 1l S. WRy., (1870) LR 6 CP 14.
by the tort of another person, in assessing damages against him, the court has to ask what damage had 33. Re an Arbitration between Polemis and Furness, Withy & Co (1921) 3 KE 560.
been suffered as a result of that tort by the already injured victim). 34. (1921) 3 KB 560 (Scrutton LJ).
30. Mc Manus v Beckham, (2002) 4 All ER 497, pp 512, 513. 35. Wagon Mound No 1. (1961) 1 All ER 404: (1961) 2 WLR 126: 105 S] 85 (PC).

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 Law a/Torts Chapter IX Chapter IX Remedies 207
206

have known that the oil was capable of being set a fire when spread on water. He, Mound No. 1,41 the Privy COLmcil reserved its opinion on the question whether the test of
however, found that the destruction of the wharf by fire was a direct though foreseeability could be applied to a tort of strict liability. It has now been authoritatively
unforseeable consequence of the negligence of the defendant and gave judgmeIft for the decided by the House of Lords in Cambridge Water Co Ltd v Eastern Countries Leather
plaintiff. plc42 that even in cases of strict liability governed by the rule in Rylands v }<facher, 43
foreseeability of damage of the relevant type, if there be escape from the land of things
The Supreme Court of New South Wales affirmed the decision of the trial Judge. In
likely to do mischief, was a prerequisite of liability. However, it has been said that in
further appeal by the defendant the Privy Council allowed the appeal. In holding 44
action for deceit, damages are not restricted to foreseeable damage.
foreseeability to be the correct test, the Judicial Committee observed that the Polemis
case should not be regarded as good law "for it does not seem consonant with current The House of Lords in Hughes v Lord Advocate,45 Jolly v Sutton London Borough
ideas of justice or morality that for an act of negligence, however slight or venial, which Councit 6 and the Court of Appeal in Doughty v Turner Manufocturing Co47 accepted the
results in some trivial foreseeable damage, the actor should be liable for all consequences Privy Council decision in Wagon Mound No.1. These cases also lay down and illustrate
however unforeseeable and however grave, so long as they can be said to be direct". 36 that the test of foreseeability is satisfied if the damage suffered is similar in kind though
Mter pointing out that the test of directness looked at the happenings, after the event, it different in degree and that the precise sequence of events or extent of the damage need
was further observed: "After the event even a fool is wise. But it is not hind sight of a not have been foreseeable; but if the damage suffered is altogether different in kind, the
fool; it is the foresight of a reasonable man which alone can determine responsibility.,,37 test of foreseeability is not satisfied, and the plaintiff cannot recover.
In Wagon Mound No. :is which was a suit against the same defendant by the owner of What must have been foreseen is not the precise injury which occurred but injury of a given
the vessel which was being repaired and which was damaged by fire, the evidence was description. The foreseeability is not as to particulars but the genus 48
different and the finding reached by the Privy Council was that the risk of the oil on the In Hughes' case49 the Post Office maintenance gang before going for a tea-break, left
water catching fire was foreseeable; so the defendant was held liable. The Privy Council an open manhole unattended after covering it with a canvas shelter surrounded by four
refuted the argument that if a real risk can properly be described as remote it must be kerosene lamps. A boy, aged eight, brought one of the lamps in the sheiter and started
held to be not reasonably foreseeable and observed: playing with it when he stumbled and it feil into the manhole. There was a violent
If a real risk is one which would occur to the mind of a reasonable man-and which explosion and the boy himself fell into the manhole and sustained severe burn injuries. It
he would not brush aside as far fetched, and if the criterion is to be what that reasonable was foreseeable that boys might enter the shelter and play with the lamps and that
man would have done in the circumstances, then surely he would not neglect such a risk spilled kerosene might catch alight and cause bum injuries. What actually happened was
if action to eliminate it presented no difficulty, involved no disadvantage and required that kerosene vapours were formed by the heat of the lamp and set off by its flame
no expense. The finding that the damage by fire was foreseeable was reached on the resulting in the explosion which was not foreseeable. The House of Lords held the
following considerations: (1) There was a real risk of fire although remote; (2) The risk defendants liable rejecting the distinction between burning of kerosene and exploding of
was great in the sense that if the oil caught fire serious damage to ships and property was kerosene vapours. It will be seen that the foreseeable and actual injuries were of the same
very likely; (3) A qualified Chief Engineer of the defendant would have known the kind that is to say burn injuries resulting from kerosene coming in contact with naked
gravity of the risk; (4) Action to eliminate the risk presented no difficulty, disadvantage flame and the difference only lay in the manner in which the events were and
or risk; (5) From the very beginning the discharge of oil was an offence and was causing the way they happened for instead of the oil coming in contact it was its vapour which
loss to the defendant financially; and (6) A reasonable man in the position of a Chief came in contact with the flame of the lamp causing the explosion. This distinction was
Engineer would have realised and foreseen and prevented the risk. too fine to make the accident different in kind from that which was foreseeable. In
9 Doughty's case,50 the foreseeable risk was injuty to workmen from splash of extremely hot
The effect of the decision in Wagon Mound No. :i is to affirm and explain the test of
molten liquid if a thing fell into it. What happened actually was that an asbestos cover
foreseeability. A tort-feasor is liable according to the explanation given of foreseeability
fell into the liquid and the extreme heat caused the asbestos cement to undergo a
in this case, "for any damage which he can reasonably foresee may happen as a result of
chemical change creating or releasing water which turned to steam and which in one or
the breach (of duty) however unlikely it may be, unless it can be brushed aside as far
fetched.,,40 This case (Wagon Mound No.2) also establishes that the test of foreseeability
is not limited to the tort of negligence but applies also to the tort of nuisance. In Wagon 41. Wagon Mound No. 1 (1961) 1 All ER404: (1961) AC 388 (PC).
42. Cambridge Water Co Ltd v EtlStern Countries Leather Pic (1994) 1 All ER 53 (HL).
43. Rylands v Fletcher (186S) LR 3 HL 330.
36. OversetlS Tankship (UK) Ltd v Morts Dock & Engineering Co, (1961) 1 All ER 404: (1961) 2 WLR 126 : 44. Doyle v Olby (Iron mongers), (1969) 2 QB 15S, (167) : (1969) 2 All ER 119.
1055] 85 (PC). 45. Hughes v LordAdvocate (1963) 1 All ER 705: (1963) AC S37 (HL).
37. OversetlS Tankship (UK) Ltd v Morts Dock & Engineering Co, (1961) 1 All ER 404 : (1961) 2 WLR 126 : 46. Jolly v Sutton London Borough Council (2000) 3 All ER 409 (HL).
1055] 85 (PC). 47. Doughty v Turner Manufocturing Co (1964) 1 All ER 98: (1964) 1 QB 51S (CA).
38. Wagon Mound No.2 (1966) 2 All ER 709: (1967) 1 AC 617 (PC). 4S. Jolly v Sutton London Borough Council, (2000) 3 All ER 409, p. 41S (HL).
39. Wagon Mound No.2 (1966) 2 All ER 709 : (1967) 1 AC 617 (PC). 49. Hughes' case, (1963) 1 All ER 705: (1963) AC 837 (HL).
40. The Heson II, (1969) 1 AC 350, (442) (Lord Upjohn); Weir, Case Book, 5th Edn, p 184. 50. Doughty's case, (1964) 1 A1IER98: (1964) 1 QB 518 (CA).

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208 Law o/Torts Chapter IX IX Remedies 209

two minutes later caused an of the liquid from the cauldron injuring because of their negligence suffered a mJury on his lip which promoted
the The was not injured by the splash, if any, from falling cancer at the site of the resulting in his death. But for the burn, the cancer might
cover into the liquid. Until the accident had been investigated, no one knew or never have developed, there was a premalignant condition and there was a
suspected that heat can cause such a chemical change in asbestos cement. The Court of likelihood that it would done so at some stage in his life. In an action by
Appeal held the defendant not liable on the reasoning that the accident that happened widow of the deceased the were held for death on the
was not merely a variant of but of entirely different kind to that which was foreseeable. principle that a tort-feasor must take his victim as he finds Smith's case was
followed in Robinson v The Post Office the facts of which have been stated earlier59 in
58
Hughes case,S1 also shows that if the damage is of the same kind as was foreseeable, the
defendant will be liable even if the magnitude of the accident and the extent of damage decreeing the claim against the Post Office. It was that if a workman
greatly varied from what was foreseeable. 52 slipped from a ladder made slippery because of the negligence of the employer, the
workman was likely to suffer injury needing medical treatment in the form of
9.1.3.2 Intended Consequences injection of ATS. Although it was not foreseeable that the given even
without any negligence on the part of the doctor would cause encephalitis to the
Intended consequences of the tort-feasor are evidently foreseeable. But an intentional
workman because he was allergic to second dose of ATS yet the Post Office were
wrongdoer's liability will cover all consequences, whether foreseeable or not, which
held liable on the principle that they were bound to take the as they found
result from his wrongful act. This is not affected by the Wagon Mound cases. The 6o
striking iliustration of the extent of intentional wrongdoer's liability is furnished by the him. The case also holds that foreseeable medical treatment without any
case of Scott v Shephertf3 where the defendant threw a lighted squib into the market negligence on the part of the doctor does not constitute Novus actus interveniens. 61
house when it was crowded. The fiery missile came down on the shed of a vendor of
ginger bread who to protect himself caught it dexterously and threw it away from him. It 9.1.3.4 Intervening Acts or Events: Novus Actus Interveniens
then fell on the shed of another ginger bread seller, who passed it on in precisely the
Damage resulting to the plaintiff arrer the chain of causation set in motion by the
same way, till at last it burst in the plaintiff's face and put his eye out. The defendant
defendant's wrongful act is sn':Eped is too remote and does not qualifY for award of
was held liable to the plaintiff. It is an application of the same or similar principle that in
damages against the defendant. 2 The proposition so stated is simple but the difficulry
an action for deceit which is an intentional tort, tort-feasor is liable for all actual
lies in formulating the principles as to when an act or event breaks the chain of
damage, whether foreseeable or not, flows from the fraudulent act. 54 This
causation. The snapping of the chain of causation may be caused either by a human
principle was approved by the House and it was held that in an action for action or a natural event.
deceit the plaintiff is not restricted to the difference between real value of the subject
matter on the date of sale and the paid by him for the asset acquired but to all As regards human action, two principles are settled; one that human action does not
consequential loss from the misrepresentation which induced the plaintiff to retain the per se severe the connected sequence of acts; in other words, the mere fact that human
asset or in other words the plaintiff was by reason of the fraud locked into the action intervenes does not prevent the sufferer from saying that injury which is due to
property. 55 that human action as one of the elements in the sequence is recoverable from the
original wrongdoer; and secondly that to break the chain of causation it must be shown
9.1.3.3 "Eggshell Skull" Cases that there is something ultroneous, something unwarrantable, a new cause which
Wagon Mound also leaves the "eggshell skull' cases unaffected. A tort-feasor takes his disturbs the sequence of events, something which can be described as either
victim as he finds him. If the plaintiff suffers personal injury from the wrongful act of unreasonable or extraneous or extrinsic. 63 If is a duty to avoid risk to children,
the defendant, it is no answer to the claim that the plaintiff would have suffered less their unexpected behaviour does not break the chain of causation "for their m
injury "if he had not unusually thin skull or an usually weak heart".56 The principle is
illustrated Smith v Leech Brain & Co Lt/,7 wherein a workman of the defendants
58. Robinson v The Post Office, (1974) 2 All ER 737: (1974) 1 PJJ ER 1176 (CA).
59. P 196, supra.
51. Hughes case, (1963) 1 All ER 705: (1963) AC 837 (HL).
60. Robinson v The Post Office, (1974) 2 All ER 737: (1974) 1 All ER 1176 (CA).
52. For another example, see VacWel1 Engineering Co Ltd v BDH Chernicals Ltd, (1971) 1 QB 88 (110)
61. Robinson v The Post Off,ct, (1974) 2 All ER 737: (1974) I All ER 1176 (CA).
(Supply of chemical in ampoules liable to explode on contact with water: minor explosion foreseeable;
huge explosion took place as plaintiff pur a number of ampoules in the same sink). 62. Weld Blundell v Stephens, (1920) AC 956: 123 LT 593: 36 TLR 640 (BL) p 986 (Lord Sumner).
53. Scott v Shepherd (1773) 2 WEI 892. "One may find that, as a matter of history several people have been at fault and that if any of them
54. Doyle v Olby Ltd., (1969) 2 QB 158: (1969) 2 All ER 119. had acted properly the accident would not have happened, but that does not mean that the accident
55. Smith New Court Securities Ltd. v Scrirngeour Vickers, (1996) 4 All ER 769, P 778 : (1996) 3 WLR 1051 must be regarded as having been caused by the faults of all of them. One must discriminate between
(HL). See further p 630. those faults which must be discarded as too remote and those which must nor." 11 iV/ines
56. Dulieu v White, (1901) 2 KB 669, P 679 : 85 LT 186: 17 TLR 555. Ltd., (1953) 2 j\11 ER 478 (H.L.) pp 485, 486: (1953) AC 663 (Lord Reid).
57. Srnith 11 Leech Brain & Co Ltd (1962) 2 QB 405 : (1961) 3 All ER 1159. 63. Lord v Pacific Stearn Navigation Co. Ltd.; The Oropesa, (1943) 1 All ER 211 (CA): (Per Lord Wright).

e
210 Law o/Torts Chapter IX
Chapter IX Remedies 211
finding unexpected ways of doing mischief to themselves and others should never be
underestimated. ,,64 swept away by the flood and the passengers died. In a claim by the dependants of one of
the deceased passengers, it was argued that the deceased should have crossed the
As an application of the above principles, a reasonable act done by .. a person in causeway on foot and should not have remained in the bus. There were two courses
consequence of wrongful act of the defendant which results in further damage does before the marooned passengers in the bus; one was to cross the river by walking the
not break the chain of causation. 65 In The City of Lincoin,66 a collision took place submerged causeway and the other was of remaining in the bus in the hope that the
between a steamer and a barge in which the steamer alone was to be blamed. The water will recede. Both the courses involved a great risk, but neither could be called
steering compass, charts and other instruments of the barge were lost in the collisioll. unreasonable looking to the circumstances in which the passengers were placed. The
The Captain of the barge made for a port of safety, navigating his ship by a compass court, therefore, negatived the contention that the death of the passengers was caused by
which he found on the board. The barge without any negligence on the part of the their own act of remaining in the bus and not by the negligent act of the driver in
Captain or the crew, and owing to the loss of the requisites for navigation, grounded and driving the bus over a flooded causeway. The court also observed: "If the persons
was abandoned. The Court of i\ppeal held that the Captain 5 action of navigating the affected by the negligent act of the defendant are exposed to risk of misjudgment of
barge to a port of safety, in which he did not succeed, was a reasonable act and did not accident which would not have otherwise arisen, further damage from the
break the chain of causation. It will be seen that as a consequence of the collision, the materialisation of the risk may be recoverable. A reasonable act by the persons affected
Captain of the barge was placed in the difficulty of taking a decision for the safety of the by the negligence in a dilemma created by the negligent act cannot be held to be novus
barge. He may have decided to remain where the barge was in the hope that the vessel actus inter veniens which breaks the chain of causation.,,69 These cases have to be
would be picked up. The other alternative was to make for a port of safety. Both the contrasted with those where the plaintiff acts unreasonably. In such cases further injury
alternatives were not free from risk; but neither could be called unreasonable. So the caused by the second accident following the plaintiffs unreasonable conduct cannot be
Captain's action in deciding to take one of them did not constitute an act breaking the attributed to the defendant's wrongful act causing the first accident for the chain of
chain of causation. In Lord v Pacific Steam Navigation Co Ltd, the Oropesa,67 the facts causation is broken by the plaintiffs unreasonable conduct. In Mckew v Hoiland &
were that a collision occurred bet~veen the Oropesa and the Manchester Regiment. The 70
Hannen & Cubbits (Scotland) Ltd the plaintiff suffered trivial injuries in the course of
latter vessel was seriously damaged and the Captain ordered the majority of the crew to his employment which were caused by the fault of the defendants. His back and hips
take to lifeboats who safely reached Oropesa. The Captain, after sometime, boarded were strained and sometimes his left leg became numb, ie he lost control of himself. But
another lifeboat with the rest of the crew. He hoped to persuade the Captain of Oropesa these injuries would have got cured in a week or two. In the meantime, the plaintiff
to take the Manchester Regiment in tow or to arrange for salvage assistance) and in any went to inspect a tenement flat in the company of his family members. The stair was
event, to arrange for messages to be sent out and to obtain valuable advice. The lifeboat steep with wall on either side but without handrails. The plaintiff left the apartment
Ld.I),'''CCU and nine of the crew died. The Oropesa returned safely with survivors and the
with his daughter to go down the stairs. His leg became numb. To avoid a fall, he
Manchester Regiment sank. In a claim for damages by the dependants of one of the jumped and landed heavily on his right foot breaking the right ankle and a bone in his
deceased crew, the contention was that the chain of causation had been broken by the left leg. The plaintiffs conduct was unreasonable in the sense that if he had given the
act of the Captain in attempting to go to Oropesa with the crew in a lifeboat. In matter a moment's thought he must have realised that he could only safely descend the
rejecting this it was held that the action taken by the Captain was a natural stair if either he went extremely slowly and carefully so that he could sit down if his leg
consequence of the emergency in which he was placed by the negligent act of the gave way or waited for the assistance of his family, instead the plaintiff chose to descend
Oropesa and there was no breal<: in the chain of causation and that the death of the in such a way that when his leg gave way he could not stop himself from jumping. The
seamen was a direct consequence of the negligent act of the Oropesa. These cases were House of Lords rejected the argument that the second accident was foreseeable and
68
followed by the Madhya Pradesh High Court in Chaurasiya & Co v Smt Pramila Rao. hence the defendants were liable. Mer holding that the plaintiffs unreasonable conduct
The facts in this case were that the driver negligently drove a passenger bus over a was novus actus inter veniens, Lord Reid observed:
causeway submerged in floodwaters. The bus skidded and stopped after crossing one-
It is often easy to foresee unreasonable conduct or some other novus actus inter veniens as
third of the causeway when one of the wheels got stuck up in stones embedded on the being quite likely, But that does not mean that the defender must pay for damage caused by the
sides of the causeway. One of the passengers crossed the causeway safely on foot. Others novus actus. 71
remained in the bus. The water was then up to waist level. When the water level rose
further, the passengers climbed to the top. The water went on rising and the bus was Lord Reid also pointed out that if there is no break in causation, the plaintiff is not
non-suited "by acting wrongly in the emergency unless his action was so utterly
unreasonable that even on the sfur of the moment no ordinary man could have been so
7
64. Jolley v Sutton London Borough Council, (2000) 3 All ER 409, p. 420 (HL), For this case see p 509. foolish as to do what he did". Another case where this passage was applied is Emeh v
65. The City ofLincoln, (1889) P.D. 15; The Oropesa supra; Chaurasia 6- Co v Smt Pramila Rao, (1974) ACJ
481 (485) (MP). See further chapter XIX, title 7(c), p 577.
66. The City ofLincoln, (1889) PD 15. 69. Chaurasiya 6- Co v Smt Pramila Rao,(1974) ACJ 481(MP). P 485. (GP Singh, J)
67. Lord v Pacific Steam Navigation Co Ltd, the Oropesa (1943) 1 All ER 211 (CA). 70. Mckew v HoliAmd 6- Hannen (7' Cubbits (Scotland) Ltd (1969) 3 All ER 1621 : 5 KIR 921 (HL).
68. Chaurasiya 6- Co v Smt Pramila Rao (1974) ACJ 481 (MP). 71. Mckew v Holland 6- Hannen 6- Cubbits (Scotland) Ltd, (1969) 3 All ER 1621, P 1624.
72. Mckew v Holland 6- Hannen 6- Cubbits (Scotland) Ltd, (1969) 3 All ER 1621
 IX Remedies 213
212 Law Chapter IX

UL,UlVLlm and and \Westminster Area Health

had sterilisation which was HClo\lllo\CJ
the W_HA.',"O." some lWUHun
to have abortion and later gave harm to himself is
that the owed it would be
or an abortion and the fact that she UCLlUlCU
abortion was not a novus actus inter veniens. This view is also in line with
74
the House of in a later case. Another case 75 to the so were not
unreasonable action in further ~~H"<h~ act of
a brain suffered in an accident which the
there is no novus actus and the defendant is liable for the
the UldllW''''

to break the chain

received in the accident and
''''~L!I ,,-v.m.' children to
not have committed the criminal acts
not do
was sentenced he was entitled to to
compensate him for being wrong.

Rescue cases also illustrate a person III

consequence of the act does not constitute novus actus
the chain of causation. It is foreseeable that if

come
or not the person '-UUdH",-U to protect or is a mere
stranger. 77 T" he rescuer can, defendant
does not break the chain
act
unreasonable.
79 observations in Lamb v London Nfl'!Nl1U,-h

When the u,-",-aUdJ All that Lord Reid seems to me to be is that the reasonable man in the
which he was
position of the tort-feasor cannot be said to the behaviour of another
to do to acts of third behaviour is such as would, viewed objectively, be very likely to occur. Thus,
do not constitute novus actus interveniens my negligent driving, I damage another motorist's car, I suppose that lH<:Vl'CW_,W
them is recoverable from the defendant. foresee that, whilst he leaves it by the roadside to go and filS some ill-
certain precautions for the of the intentioned passer-by may jack it up and remove the wheels. But I cannot
and if the are stolen because those precautions were not said that, merely because I have created the circumstances in which such a theft become
89
the loss of goods to the plaintiff. 80 there is a broader possible, I ought reasonably to foresee that it would happen.
involved in such cases which is stated to be that when the law imposes a duty
loss caused the free, deliberate and informed act of a human being,
81. Reeves v Commissioner ofPolice of the Metropolis, (1999) 3 All ER 897, pp 902, 903, 914 : (2000) 1 AC
360: (1999) 3 WLR 363 (HL).
73. Emeh v Kensington and Chelsea and Westminster Ami Health Authority (1984) 3 All ER 1044 (CA). 82. Reeves v Commissioner of Police of the Metropolis, (1999) 3 All ER 897: (2000) 1 AC 360: (1999) 3
74. McFarlane v Tayside Health Board, (1999) 4 All ER 961, pp 970, 990 (HL). WLR 363 (HL).
75. Meah v McCreamer, (1985) 1 All ER 367: (1985) 135 NL] 80. 83. Corr.u IBC Vehicles Ltd, (2008) 2 ALL ER 943. For this case see further title 1(C) (IV)A, p 193.
76. Meah 11 McCreamer, (1985) 1 All ER 367: (1985) 135 NL] 80. 84. Weld-Blundell v Stephens, (1920) AC 956 (985) : 89 L]KB 705 : 36 TLR 640.
77. Haynes v Harwood, (1935) 1 KB 146: 152 LT 121 : 78 5] 801 (CA); Chadwick v British Railway BOald, 85. Haynes v Harwood,.
(1967) 1 WLR 91 : (1967) 2 All ER 945. 86. Home Office v Dorset Yacht Club, (1970) 2 All ER 294 (300) : (1970) 2 WLR 1140 (HL).
78. Haynes vf/arwood, (1935) 1 KB 146: 152 LT 121: 78 5] 801 (CA). 87. See text and footnotes 65-67, p 210.
79. Haynes v Harwood, (1935) 1 KB 146 (163) : 152 LT 121 : 78 5] 801. 88. Lamb v Camden London Borough (1981) 2 All ER 408: (1981) 2 WLR 1038 : (1981) QB 625 (CA).
80. Stansbie v Troman, (1948) 2 KB 48 : (1948) 1 All ER 599. Approved in Empress Car Co. (Abertillery) 89. Lamb v Camden London Borough, (1981) 2 All ER 408, P 418.
Ltd v Natzonal RIvers Authority, (1998) 1 All ER 481, P 488 (HL).
214 L1wofTorts Chapter IX
Chapter IX Remedies 215
Watkins LJ in the same case observed that in addition to foreseeability one should
see whether on a practical view, the intervening act did not seem sufficiently 9.1.3.4.1 A Summary of Principles in Considering Remoteness
connected with the original wrongful act of the defendant. 9o In most cases, this In Simmons v British Steel Plc,95 Lord Rodger summarized the principles involved in
difference in approach would make no difference to the result. It was so' observed by considering the qu<;stion of remoteness of damage. The summary reads:
Scott, J inWard v Cannock Chase District Council. 91 The cases of Lamb and Ward
These authorities suggest that, once liability is established, any question of the remoteness of
both related to claim of compensation for damage caused by vandals and thieves to damage is to be approached along the following lines which may. of course, be open to
plaintiffs house property which became unoccupied because of the negligent act of refinement and development.
the defendant. In Lamb's case, the damage was held to be too remote but in Ward's
(J) The starting point is that a defender is not liable for a conse(Iuence of a kind which is not
case, it was held to be very likely to happen for which the defendant was liable. The reasonably foreseeable.
96
difFering results were reached having regard to the location of the houses and the chain
(2) W!lile a defender is not liable for damage t!13.t was not reasonably foreseeable, it does not
of events intervening the defendant's negligence and damage caused by vandals and
foHow that he is liable for all damage that was reasonably fores("eable: depending on the
thieves. A mini-bus belonging to the defendants' bus company was left at the end of a circumstances, the defender may not be liable for damage caused by a novus actus
shift at one of the regular change over points with ignition keys in it. An unknown interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably
third party stole the bus and knocked down the plaintiffs wife who died. It was held foreseeable.
97

that the act of the thief constituted nOllUS actus interlleniens which broke the chain of
(3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable,
causation and the bus company was not liable in negligence for the death of the the defender is liable, even if the damage is greater in extent than was foreseeable or It was
· ·£.f S WIle.
P1arntlI. 'f: 92 98
caused in a way that could not have been foreseen.
99
Recklessness of a third party as distinguished from his mere negligence may break the (4) The defender must take his victim as he finds him.
chain of causation and constitute nOllUS actus interveniens. A car broke down at night in (5) Subject again to the qualification in (2), where personal injury to the pursuer was
fog on dual carriageway. The driver of the car was negligent in leaving the car on the reasonablv foreseeable, the defender is liable for any personal 1l1Jury, whether phYSICal or
carriageway instead of moving the car onto the verge. A lorry driven not merely ,
psychiatric, T
which the pursuer subers as a resuIt 0 fh'IS wrongd'
01l1g ,,100
negligently but recklessly collided with the car and then went out of control.
In Corr v lBC Vehicle JOl where the above summary was quoted and applied, Corrwas
The lorry ended up overturned on the opposite carriageway. This would not have
happened but for the reckless driving. Two otber cars collided with the overturned lorry. employed as a maimenance engineer by mc vehicles, the defendant. In an accident
It was held that the lorry driver's reckless driving broke the chain of causation and it was which took place in June 1996 because of breach of duty or negligence of the defendant,
the sole cause of the accident on opposite carriageway.93 Corr suffered severe injuries on the right side of his head. He underwent long and
painful reconstructive surgery. He remained disfigured, persistently suffered from
Just as human action which is wholly unconnected with the wrongful act of the unsteadiness, mild tinnitus and severe headaches and difficulty in sleeping. He also
defendant may break the chain of causation, so also a natural event although that action suffered from post-traumatic stress disorder. Also, as a result of the accident Corr
or event would not have affected the plaintiff had not the defendant committed the became depressed, a condition which worsened with passage of time, and developed
wrongful act complained of. If A's car is damaged because of the negligence of B and it suicidal tendency. A psychologist diagnosed his condition as one of 'severe anxiety and
is taken to a garage for repairs wherefrom it is stolen, B would not be liable to A for theft depression'. In May 2002, while suffering from severe depression Corr commit.ted
of the car from the garage. Similarly, if the car is further damaged or destroyed by suicide. In June 1999 Corr had instituted proceedings claiming damages for the phYSIcal
lightning and storm while it is in the garage B would not be liable. In the above and psychological injuries suffered by him. After his death his widov~ was substituted as
examples, the theft and so also the lightning and storm are wholly unconnected with the claimant and claimed damages for benefit of the estate. She also clalmed damages as a
original wrongful act of B and break the chain of causation although neither of them dependant for herself under the Fatal Accidents Act, 1976. It was only the latter claim as
would have affected A, had not B committed the wrongful act for there would have been
then no occasion to take the car to the garage for repairs. 94 Damage by such an act or
event is not reasonably foreseeable in the context of the original wrongful act of the 95. Simmons 1J British Steel Pic, (2004) UKHL 20.
defendant. 96. McKnew 1J Holland & Hartnell 6- Cubitts (Scotland) Ltd [1969] 3 All ER 1621 at 1623 per Lord Reid;
Hay or Bourhilt v Young [1942] 2 All ER 396 at 401, [1943J AC 92 at 101 per Lord Russell otKilowcl1;
Allanz) Barclay, (1863) 2 M 873 at 874 per Lord Kinloch. .
90. Lamb v C'runden London Borough, (1981) 2 All ER 408, P 42l. 97. McKew v Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All ER 1621 at 1623 per Lord Reid;
91. Wmd v C'annock Chase District Council (l9!l5) 3 All ER 537 (552) : (1986) 2 WLR 6()0 : (1986) Lamb v Camrkn London BC [1981J 2 All ER 408, [1981J QB 625; bm see Ward v CamlOck Chase DC
chapter 546. [1985] 3 All ER 537, [1986J Ch 546.
92. Topp v Country Bus (South West) Ltd., (1993) 3 All ER 448 (CA) P 465 : (1993) 1 WLR 976. 98. Hughes v LordAdvocatc [1963]1 All ER 705 at 708, [1963] AC 837 at 847 per Lord Reid. .
93. Wright v Lodge, (1993) 4 All ER 299 (CA) 99. Hay or Bourhill v Young [1942] 2 All ER 396 at 405, [1943] AC 92 at 109-110 per Lord Right;
94. For a case of natural breaking of causation see Carslogie Steamship Co Ltd v ROY'II Norwegian McKillen v Barclay Curle & Co Ltd 1967 SLT 41 at 421, per Lord Plesident Clyde.
Government, (1952) AC 292 : (1952) 1 All ER 20 (HL). 100. Page v Smith [1995] 2 All ER 736 at 768, [1996J AC 155 at 197 per Lord Lloyd.
101. Corr v lBC Vehicle (2008) 2 All ER 943 (H.L.) para 8 .
 216 Law of Torts Chapter IX IX Remedies 217

a dependant th~t w.as.contested and came up before the House of Lords in appeal by the acting. A defendant is only liable for such part of the plaintiffs loss as is properly, to be regarded
defendant. In dlsmIssmg the appeal, the House of Lords held: as caused by the defendant's breach of duty. 107

(i) At the time of his death the deceased had acted in a way he would not 9. Examples
done but for the injury which he had suffered because of defendant's breach of
His conduct in takjng his own life could not be said to fan outside the Where the defendant took up a and chased the plaintiffs servant
scope of the duty which the defendant had owed him. for shelter into his master's and in doing so knocked out a
(ii) A reaso~abie emp1oyer would ~ave recognized the possibility not only of acute cask of wine the wine ran out and was lost, it was held the UClCl1U'''1l
responsible in damages for the loss of wine. 109
depreSSIOn but of such depresslOn culminating in suicide as foreseeable.
The defendant's truck, contrary to local regulations, had been left on
(iii) The rationale of the principle that a novus actus interveniens broke the chain of
the shafts being shored up and projecting into the a truck was
causation was f~irness. It was not fair to hold a tortfeasor liable for damage
similarly placed on the opposite side of the road; the driver of a third truck endeavouring
caused. not by hiS breach of duty but by some independent, supervening cause
to drive the narrowed way thus left, struck the shafts of the defendant's truck which
for whICh the was not responsible. That was not the less so where
ix:d~pendent supervening ~ause was a voluntaty informed decision taken by the
whirled round, struck and injured the who was on the side it was held
VICtim as an adult hiS own But it was not so in this case where that the defendant was 109

sui~ide was the r~sponse. of a man suffering from a severely depressive illness Where the defendant knowing the plaintiff to be a farmer sold him a cow which he
whICh hiS capaCity to make reasoned and informed about his warranted free from disease and she was placed other cows some of which became
future, illness being a consequence of the defendants' tort. infected and died; the was held liable for the entire loss as being a
(iv) The deceased's conduct in taking his own life could not be said to be damage. 110
unreasonable once it was accepted that this conduct was induced by the The defendant left a loaded gun at full cock, beside a gap from which a path
defendant's of duty. led over defendant's lands from the public road to his house. The son (aged
(v) As the deceased's conduct in was an act performed because fifteen), coming towards his father's house along the path, found the gun, and HClUiJI111.'"
of psychological condition breach of duty had HRIUL.CU, with it to the public road, not knowing it was loaded, pointed it in play at the
it was not a act giving rise to the ""'-.,"',,"'.-'_ of volenti non fit who was injured by the gun going off. It was that the defendant was
UdlHJ')',C caused was not too remote. III

9.1.3. 5 Mitigation ofDamage

Ata station some water had frozen upon platform. The cause of this was
A plai~tiff who sues in a tort action cannot claim damages for that loss ne may 1 unexplained, nearly an inch thick, and ClCiLClilUIHl!,
have aVOIded by a reasonable step. is similar to the one in actions across the of been there some time. A passenger,
102 while waiting for a not it and
for breaches of contract. The of reasonableness is a question of fact. 103 In
Selvanayagam v 104 the Council !aid serious injuty. It was held that the uU.... UU"'.HO

. . hI£:
ICC to remam on t e p atlOrm.
112
an action for
left

sewer, and
contractors, was
drove the
water,
,A .. u~der 1m to mitigate his loss, despite the habitual lise the of the
duty to mmgate. He IS completely free to act as he judges to be in his best interests. On the -----------------
other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so 107. Geest pic v Lansiquot, (2003) 1 All ER 383, 384 (PC).
108. Vendenburgh v Truax, (1847) 4 Denio 464,
109. Powell v Deveney, (1849) 3 Cllsh 300.
102. Winfield & Jolowicz, Tort, 12th Edn, p 623. 110. Smith v Green, (1875) 1 CPD 92; Mullett v Mason, (1866) LR 1 CP 559, (563); IVIl11./}~'rav v
103. Winfield & Jolowicz, Tort, 12th Edn, p 623. Merryweather, (1895) 2 QB 640.
104. Se/vanayagam v University ofthe West Indies, (1983) 1 All ER 824 (827) : (1983) 1 WLR 585 (PC). 111. Sullivan v Creed, (1904) 2 IR 317.
105. Geest plc v Lansiquot, (2003) I All ER 383, P 384 (PC). 112. Shepherd v Midland Ry Co., (1872) 25 LT 879.
106. Sotiros Shipping Inc v Sameiet So/holt, The Solholt [(1983) 1 Lloyd's Rep. 605, at p 608]. 113. Hill v New River COmpan)l, (1868) 9 B & S 303, (305) .
 Chapter IX Remedies 219
218 Law of Torts Chapter IX

The plaintitJ delivered to the defendant a mare [0 be agisted on his field, which was The plaintiff was charged by the ticket collector for being the defaulter, and on his refusing
separated by a wire ferlcing from his neighbour's field in the occupation of a cricket to pay the fare or leave the carriage, he was removed from the carriage by the company's
club. to the negHgence of the defendant's servant in officers without any unnecessary violence. It turned out that the plaintiff had a ticket and
the mare into the field by the he had left a pair of race-glasses when removed. It was held that he could not recover for
118
in a careful and proper manner to their loss as it was not the necessary consequence of the defendants' acts.
mare refused to go through the gate and having run Currency notes.-A person died in a collision between the train in which he was
against ",ire over it and was injured. It was held that the injury to the mare travelling and another train of the same railway administration. In an action for the
was the natural consequence of the gate having been left open and that the defendant pecuniary loss which resulted to members of the deceased's family from his death a claim
was liable. 114 was included for Rs. 1,300 being the value of lost currency notes which the deceased was
who had lent money to a certain company being asked for a further canying with him on the night in question. It was held that the defendant railway would
advance, employed the defendant, a chartered accountant, to look into the affairs of the not be liable for loss resulting from the wrongful act (eg theft) of a third party, such as
1l9
company. In a letter of instructions to the ddendant the plaintiff inserted libellous could not naturally be contemplated as likely to spring from the defendant's conduct.
statements concerning the former manager and an auditor of the company. The Putting up barrier in street.-The defendant was in occupation of certain premises,
defendant the letter to his partner, who negligently left it at the company's abutting on a private road, which he used for athletic sports. He erected a barrier across
office. The manager found it, read it and communicated its contents to the two persons the road to prevent persons driving vehicles up to the fence surrounding his premises
defamed, who sued the plaintiff for libel and recovered damages against him, the jury in and overlooking the sports. In the middle of this barrier was a gap which was usually
each case finding that the writer of the letter was actuated by malice. The plaintiff then open for vehicles, but which was closed when sports were going on. The ~efendant ~ad
sued the defendant tor breach of an implied duty to keep secret the letter of instructions. no legal right to erect this barrier. Some person removed a part of the barner armed With
It was held that it was the duty of the defendant to keep secret the contents of the letter; spikes from the carriacre way and put it in an upright position across the footpath. The
that as he had neglected that dury, the recover nominal damages only and o
plaintiff, on a dark night, was proceeding along the way when h is eye came'Ill. contact
no more; that any further damages in nature of an indemniry for the with one of the spikes and was injured. It was held that the defendant was hable for
consequences of the plaintiffs own wilful wrong could not be recovered. 1 IS having unlawfully placed a dangerous instrument in the road notwithstan~ing the fa~t
A herdsman on the defendant's farm contracted what is known as Weil's disease, a that the immediate cause of {he accident was the intervening act of a thud parry III
, 120
disease carried by rats but very rarely contracted by human beings by reason of their very removing the dangerous instrument from the carriage way to the footpath.
slight susceptibility to the disease. The knowledge of this disease was as rare as the Damage caused bY' derelict vessel.-A vessel met with certain risks and injuries which
disease itself. On the question whether the defendants were liable on account of compelled her crew to leave her and she became a derelict. She .was driven ashore. by a
negligent breach of their duty towards the plaintiff; it was held that the master's duty violent storm and after having been abandoned was forced by w1l1d and waves aga1l1st a
was to avoid exposing the servant to a reasonably foreseeable risk of injury and on the pier, whereby serious damage was occasioned. It was held that t~e own~:s. of the ship
facts the plaintiff's illness was not attributable to any breach of'this duty, and that Weil's were not liable. The court said: "The ship should be dealt With as If It had been
disease was at best a remote possibility which the defendants could not reasonably abandoned at the antipodes, and had been ploughing the ocean, without a crew, for
foresee, and hence the damage suffered by the plaintiff was unforeseeable and too remote e'
years berore d. . h . ,,\21
It was . nven agamst t e pier.
116
to be recoverable.
Illness due to travelling in wrong train.-The plaintiff took tickets at W for himself,
The plaintiff suffered an injury caused by the admitted negligence of the defendants. wife and children, to go to H by the last train at night. By the negligence of the pone.rs
After attending the hospital, she felt shaken and the movement of her head was thev were put into the wrong train and carried to K Being unable to obtam
constricted by a collar which had been fitted to her neck. In consequence she was unable acc~mmodation for the night at E, or a conveyance, they walked home, a distance of
to use her bifocal spectacles with her usual skill and she fell while descending stairs, four miles, and the night being wet the wife caught cold and medical expenses were
sustaining further injuries. It was held that the injury and damage suffered because of the incurred. It was held that the husband was entitled to recover damages in respect of
second fall were attributable to the original negligence of the defendants so as to attract inconvenience suffered by being compelled to walk home, but that the illness of the wife
. £rom them. 117
compensatlOn
Loss of articles-Race-glasses. -The plaintiff was travelling with other passengers in a 118. Glover II L. & SW Ry Co, (1867) LR 3 QB 25. The negligence of a railway compan~ caused such an
railway carriage, and on the tickets being collected there was found to be a ticket short. injury to a passenger that he became insane, and by reason of the insanity he committed SUICide; the
injury was not regarded as the proximate cause of the death and the company was held not hable for hIS
114. Halestrap v Gregory, (1895) 1 QB 561. death; Scheffer v W & CRy, LT Aug 1882.
115. Weld-Blundell v Stephens, (1920) AC 956: 36 TLR 640: 123 LT 593. 119. Secretary ofState v Gokul (nand, (192 5) ILR 6 Lah 451.
116. Tremt/in v Pike, (1969) 3 illi ER 1303 : (1969) 1 WLR 1556. 120. Clark v Chambers, (1878) 3 QBD 327.
117. Wieland v Cyril Lord Carpets Ltd, (1969) 3 All ER 1006. 121. River Wear Commissioners v Adamson, (1877) 2 App Cas 743: 47 LJKB 193 : 26 WR 217.
 220 Law IX IX Remedies 221
a consequence too remote breach of contract {(if
for it. 122

a
127
remote.

[28
payments.

the natural consequence of

in consequence of this order was not

192: (l955) 3 WLR 951: 99 S] 888.

on account of Injuries 128. Ramessur lViIJOleem'e
Chunder (1868) 10 'iX/R 457. A suit for Wasilat, in respect of
of the turnover and profits of company, so that are in their nature uncertain and
there was a of the available for the and Lhuk,'rlJj~ttJI 1) Kailash Chandra fJa.nd!Jop.ad!Jya, 356;
(1899) ILR 27 30. See also Venkatasa v T
122. HobbsvL &SRy Co, (1875) LR 10 QB 111,116. yfJa.zeelloor. (I872) 4 NWP 146.
129. Mussamut Anundmoyee Dossee 11 Mussamut 1 Marsh 85; Punnun Sing v Meher
123. Cobb v Co., (1893) 1 QB 459: (1894) Ae 419: 62 L]QB 335. See also PA Narayanan v UOJ,
Ali, (1864) WR (Gap No.) 365; Ram Chandra lalla v liban Chandra lana, (1868) 1 Beng LR (AC])
(1998) 3 : AIR 1998 SC 1659; Surnatidevi M Dhanwatay v UOJ, (2004) 6 sec 113 : (2004) 2
ep] 27 (SC). 203. The plaintiff cannot recover the value of the he is prevented from raising on his land by
124. Httdweflll (1907) 2 KB 345. See Heath's Garage Ltd v Hodges, (1916) 1 KB 206. reason of the defendant obstructing his right to land: Karibasavana Gowd v Veerabhadrappa,
125. v Ltd, (1913) 3 KB 629: 82 LJQB 1074. (1912) ILR 36 Mad 580. It is submitted that the case is of doubtful aUl.nUI:uy.
130. Lokenath v Guru Prosad, AIR 1963 Ori 21.
126. PigneyvPointers Transport Services Ltd, (1957) 2.All ER807, (1957) 1 WLR 1121, 101 S] 851.
131. Mi Taw v Nga Ket, (1904) UBR (1904-1906), Tort, p 1.

s
222 Law o/Torts Chapter IX Chapter IX Remedies 223

cultivated in the following year. The plaintiff sued for damages for the loss of profits This is the principle of restitutio in integ;ram which was described by Lord Wright "th
resulting from non-cultivation of the land. It was held that the damages were not the d . ,,137 as e
ommant rul~ of law.. For example, if the plaintiffs car is damaged in collision with
probable result of the defenclant's act but were the consequences of a judicial act
the de~endant scar :vh1ch was negligently the plaintiff in addition to cost
proceeding from the Magistrate alone. 132
of repa~r ma~ be entitled to re~over reasonable charges for hiring a car for his use during
Threat to prosecute.-The plaintiff applied to a Municipal Board for permission to ~he penod .hls car was not av~Ilable use as it was undergoing repair. 138 But restitution
construct a building. One month after his application he was entitled to proceed with IS s~ld~m, If at all, really pOSSIble and the law provides only for notional restitution, i.e.
his construction after giving a requisite notice to the board. In reply to such notice the res~lt~tIO.n as nearly as may be by aw~rd of compensation. This is specially so when the
Board threatened to prosecute him if he started building operations. Plaintiff sued the plamtlff IS compensated non-pecumary damage such as pain and suffering. At common
Board for damages for obstructing him to proceed with the work. It was held that no law d~ages ~re purely comp~ns~tory, ex~ept where the plaintiff is injured by the
action lay as the plaintiff was entitled to proceed with his work and that the damage oppreSSive, arbltrary or unconstitutIonal actIOn by the executive or the servants of the
133
contemplated by the plaintiff was too remote. Government and when the conduct has been calculated him to m~k
Damage due to granting of licence.-A Municipal Board granted a licence to erect a for himself which may well exceed the eyable to the plaintiff. eI~
flour mill adjacent to the house of the plaintiff although the bye-laws of the Board latter two classes of cases exemplary damages may be awarded. 39 In accident cases, it has
been held t~at .grant of compensation comes under the realm of torts which is based
prohibited the grant of such licence near residential premises. A flour-mill was erected
and due to the vibrations produced by the working of the flour-mill, the plaintiffs house upo~ the pnn~lple 0:restitutio ~n integrum. i.e. a person entitled to damages should, as
neally as posstble, get .hat sum oj money whtch would put him in the same position as he
was damaged. In a suit against the Board for damages, it was held that the damage to the
house was not the direct result of the unlawful act of the Board in granting the licence wou ldh . a~e be~n zt'''h e hda not sustamed. the wronK.,140 Since the underlying objective of
and, therefore, the Board was not liable for the damage. 134 the pnnc~~le l~ not compensatory but that the aggrieved person should be put in the
same poslt1on If su~~ person had not sustained the wrong, the principle has also been
9.1.4 Measure ofDamages extended to cases ans111g out of medica! negligence. 141
It ~as bee~ seen that in determining liability when causation is in issue, it has to be
9.1.4.1 General Principle establIshed: lIke any issue relating to past event, on the balance of probabilities and not
The expression "measure of damages" means the scale or rule by reference to which on the baSIS of percentage of probability. 142 But when liability is once established, and
the amount of damages to be recovered is, in any given case, to be assessed. Damages the cour: comes to assessment of damages, "which depend upon its view as to what will
may rise to almost any amount, or they may dwindle down to being merely nominal. happen 111. the future or would have happened in the future if something had not
The law has not laid down what shall be the measure of damages in actions of tort; the happened 111 the past, the court must make an estimate as to what are the chances that a
measure is vague and uncertain, depending upon a vast variety of causes, facts and particular thing will happen or would have happened and reflect those chances, whether
circumstances. In case of criminal conversion, battety, imprisonment, slander, malicious they are more or. less even, .in the amount of,damages which it awards.,,143 The High
prosecution, the state, degree, quality, trade, or profession of the party injured, as well as ~o~rr o~ AustralIa has applted the same test for hypothetical situations of the past (as
of the person who did the injury, must be, and generally are, considered by a jury in dlst111gUlshe.d . ~r?m 14~vents alleged to have happened) treating them as analogous to
giving damages. 135 "The common law says that the damages due either for breach of future pos~lbl~lt1es. ' In that case the plaintiff was employed as a labourer by the
contract or for tort are damages which, so tar as money can compensate, will give the de~en~~nt 111 ItS meat works. In consequence of the negligence of the defendant the
injured party reparation for the wrongful act. If there be any special damage which is plamt1~f co~ltracted brucellosis leading to a degenerative spinal condition and neurosis
attributable to the wrongful act that special damage must be averred and proved.,,136 rendenng hIm unemployable for rest of his It was also found that independently of

132. Ammani v Sellayi, (1883) ILR 6 Mad 426. Where, as a result of a proceeding under section 144,
137. Liesbosch Dredger v Edison SS, (1933) AC 449: 149 LT 49: 102 LJP 73
Criminal Procedure Code, taken by the defendants, the police stopped the plaintiffs brick making and
138. Dimond 1) Lovell, (2000) 2 At! ER 897 : (2000) 9 WLR 1121 (liL)' La;den v Oconnar (2004) 1 All E.R
owing to rainfall the bricks and the fuel which was to be used in burning them were damaged, and the 277 (HL). ' " , "
plaintiff sued the defendants for damages, it was held that the damage was too remote, Neither could
139. Rookes v Barnard, (1964) AC 1129 : (1964) 2 WLR 269 (HL). Rustom K Karanjia v Thackersay, (1969)
the defendants have contemplated damage by rain as the result of their action, nor could it be said that
72 Born LR 94.
the damage by rain necessarily flowed from the action of the defendants : Maksood Alvam v Bandhu
140. Reshma ~u~;ari ~ Madan Mohan, (2009) 13 SCC 422; fOllowed by Rajasthan High Court in Sanf(eeta Parihar
Sahu, [1938] PWN 621. See Ross v Secretary o/State, (1913) ILR 37 Mad 55, where action was brought
v Sum; lannaI', LOll AlR CC 1592: (2011) 103 AlC (Sum 26) 14; see also, Manaf(inf( Director, Tamil Nadu
for loss of commission for supplying labour. See Robert and Charriol v Isaac, (1870) 6 Beng LR (Appx)
State Transport Corporation Ltd v Kmthammal (2014) 2 TN MAC 174; Anitha v Kerala State Electricity Board,
20, where interest on bills was claimed. (2014) 2 KLJ 180: 2015 ACJ 95l.
133. Banwarilal v The Municipal Board, Lucknow, (1941) ILR 17 Luck 98. 141. V Krishnakumar v State olTami! N,tdu, (2015) 9 sec 388.
134. Municipal Board, Kheri v Ram Bharosey, AIR 1961 All 430.
J42. See text and footnotes 15-17, pp 20]-202, supra.
135. Huckle v Money, (1763) 2 Wilson 205, 206.
1~3. Mallet 1/ Mc Monagle, (1970) AC 166 (HL), P 176 (Lord Diplock).
136. Per Viscount Dunedin in Admiralty Commissioners 11 S S Susquehanna, (1926) AC 655 (661,662).
144. Malee vI C Hutton Pty Ltd, (990) 64 ALJR 316 (High COUrt of Australia) .
224 Law of Torts Chapter IX Chapter IX Remedies 225

the negligence it was 'likely' that the plaintiff would have been suffering from a similar (3) Ordinary damages are awarded it is necessary to the plaintiff fairly
neurotic condition making him unemployable by 1982. The Sup~'eme Court. of for the injuty he has in fact sustained. These are also compensatoty damages.
Queensland allowed damages '0 the plaintiff .for economic l~ss and pam suffenng Whatever sum is awarded, large or must afford a fair measure of
only up to 1982. The High Court of AustralIa reversed the Judgment ?f the compensation to the plaintiff with reference to the actual harm sustained by The law
Court holding that the plaintiff was to get damages for economIC loss, and does not aim at restitution but compensation, and the true test is, what sum would afford,
suffering and cost of care for rest of his life, to this, that d~mages under the circumstances of the case, a and reasonable compensation to the
to be reduced to account of the chance factors, unconnected party wronged for the injuty done to him, the plaintiff's own estimate being regarded as
defendant's negligence, might have on a
. d"
neurotic con ltlOn.
145
the maximum measure of reparation or damages for any injuty should be
Where a wrong has been committed the wrong-doer must suffer assessed as nearly as possible at a sum of money which would put the injured party in the
impossibility of accurately ascertaining the amount of damages. 146 But the plaintiff must same position as he would have been in if he would not have sustained the injuty.lSI For
example, where a surveyor negligently surveyed a property which the plaintiff purchased
give the best eVI'dence to prove UdlUdl~"" 147
the proper measure of damages is the amount of money which will put the plaintiff into as
If damage has resulted from two or three causes, as from an act of God as well as a good a position as if the surveying contract been properly fulfilled. 152 In other words
negligent act of a p~rty, then the award. of dam~~:s should be apportioned to the proper amount of damages would be the difference between the value of
compensate only the lfiJury caused by the neglIgent act. property without the defects and its value with the defects at the date of 153

In consequence of a railway embankment the flood waters of a river were sent back When the plaintiffs injuty is aggravated by the conduct and motives of the eg
and flowed over the land of the plaintiff, doing some injuty; had the embankment not when he has acted in a highhanded manner, wilfully or maliciously, the damages may be
been constructed the waters would have flowed a different way, but would have reached correspondingly increased. But the damages so increased or aggravated are really
the plaintiffs land, and would have damage to a lesser amo~nt. It was held that the compensatoty and fall in the class of ordinaty damages. 154
measure of damages recoverable the plaintiff against the raIlway company was the (4) ExemplalY damages are awarded not to compensate the but to punish the
149
difference on1y between t he two amounts. defendant and to deter him from similar conduct in future. The House Lords I55 has
that damages can be allowed in three categories of cases. The first
9.1.4.2 Contemptuous, Nominal, Wfl>'r!,"VlI and Exemplary Damages
is oppressive, arbitrary or unconstitutional action of the Government or its
There are four kinds of damages: (1) contemptuous; (2) nominal; (3) ordinaty; and servants. Cases in the second category are those in which the defendant's conduct has
(4) exemplary. been by him to make a profit for himself which may well exceed the
compensation payable to the plaintiff. Third category consists of cases in which
are awarded when it is LUll'lLtcH,U
damages are expressly authorised statute. It was earlier the House
1J1aHlU,U has technically a legal but there is no
restricted the grant of '-A~.'HfnCH
156
of Lords in 1964
deserved what the defendant did to him, the court may
recognised at time as grounding a
of the LV,""""'-'
exemplaty damages could not be allowed in an action for nuisance which is not
to 157
such a tort. But this view now does not the The House of itself has
that the power to award exemplaty damages was not
be shown that the cause of action had been
of such damages. ISS action eg of U"'An,~'"

one anna, one

An award 151. Jeet Kumari Poddar v Chittagong Engineering and Electric Supply Co Ltd, ILR (1946) Cal 433.
the suit. 152. Phillips v Ward, (1956) 1 All ER 874 (CA); Perry v Phillips 6- son (1982) 3 All ER 705 :
nominal uaJCU"".1SL0
(1982) i WLR 1297 (CA); Wats v Morrow, (1991) 4 ER 937 (CA); v Marsh 6- Parsons (a
finn), (1997) 3 All ER 871 (CA).
153. Phillips v Ward, (1956) 1 All ER 874 (CA)
145. Malee v J C. Hutton Pty Ltd., (1990) 64 ALJR 316 (High Court of Australia). 154. Rookes v Barnard, (1964) AC 1129 : (1964) 2 WLR 269 (BL); Jodhpur Development Authority v State
146. Duke ofLeeds v Earl ofAmherst, (l850) 20 Beav 239. Consumer Dispute Redressal Forum, 2012 AIR CC 362.
147. Joseph v Shew Bwe, (1918) 21 Born LR 615, Pc. ~ " 155. Rookes lJ Barnard, supra; Cassel 6- Co Ltd v Broome, (1972) AC 1027: (l977) 2 WLR 645 : (1977) 1 All
148. Nitro-Phosphate, Co v London and St. Katharine Docks Co, (1878) 9 ChD 503 : 39 L1 4.)3 : 27 WR ER80l (HL).
267. 156. See cases in footnotes 147-148, supra.
149. Workman v G N Ry Co, (1863) 32 LJQB 279. 157. AB v South West Water Services Ltd., (1993) 1 All ER 609 (CA).
150. Mediana v Comet, (1900) AC 113 (116): 82 LT 95: 16 TLR 194; Bishun Singh vAWN (1911) 158. Kuddus v Chief Constable ofLeicestershire, (2001) 3 All ER 193 : (2001) 2 WLR 1789 : (2001) UKHL
14 CL] 515; Lala Punnalal v Kasturichtmd Ramaji, (1945) 2 MLJ 461. 29 (HL) .
 Chapter IX Remedies 227
226 Law of Torts Chapter IX

In Thompson v Commissioner of Police, 169 the Court of Appeal laid down certain
the Crown by itself authorises grant of exemplary damages and it is not necessary to guidelines for injuries. for assessing damages awardable to members of the public for
IS9
show any other aggravating circumstance. The Supreme Court has accepted t?e un~a~ul cond~ct agal~st them by the police. Certain points that emerge from these
principle that oppressive, arbitrary or unconstitutiona! a~tion ,ot the Governm~nt or lts gUldelmes are mstructlve even for subordinate courts in India where assessment is
servants calls for exemplary damages and this pnnClple has been extenaed to a directly made by the court without the assistance of a jury. These points are: (1) Save in
government staturory authority like the "Lucknow Deve1opment Auth onty. . 160. 1ntish'
exceptIOnal cases such damages are only awarded as compensation and are intended to
case damages ror harassment the plaintiff by the officers of the authonty were ~ompensate the p~aintiff for ~ny injury or damage which he has suffered. They are not
allowed. 161 But it is not in every case against [he government or its officers that mtended to pUlllsh the defendant. (2) Compensatory damages (which have been
exemplary damages should be allowed for if public servants were co~stantly under the described above as ordinary damages) are of two kinds: (a) basic and (b) aggravated. (3)
fear of threat of being proceeded against in court of law for even shghtest of lapse or Aggravated damages can be awarded when there are aggravating features about the case
constant fear of exemplary damages being awarded against them, they will develop which w?uld result in the plaintiff not receiving sufficient compensation for the injury
a defensive which would not be ·m t h' e Interest 0 f admmlstratlon.
.. . 162 If t he power suffered If the award were restricted to a basic award. Aggravating features can include
has been exercised bona fide and honestly there cannot be any occasion for exemplary humiliating circumstances at the time of arrest or any conduct of those responsible for
damages being awarded notwithstanding that unintended injury was cmsed to ~he a~rest or t?~ prosecution which shows that they had behaved in a highhanded,
someone. 163 Award of exemplary damages can al~o be moderate. The conduct of the msultmg, malIcIOUS or oppressive manner either in relation to the arrest or
parties throughout the proceedings would also be a relevant consideration in assessing imprisonment or in conducting the prosecution. (4) In a case fit for grant of damages
exemplary damages. 164 Accordmg . to t he Supreme,ourt C 165 eXfmp Iary d
. alP ages are a1so other than basic damages, sums awarded for each category should be separately shown to
recoverable when harm results from the hazardous or inherently dangerous nature of the ensure a greater tr~nsparency i~ assessing damages. (5) Aggravated damages, though
activity in which the defendant is engaged. In such cases, compensation "must. be compensatory, do 111 fact conta1l1 a penal element. (6) When a case is made out for
correlated to the magnitude and capacity of the enterprise because such compensatlon award of exemplary damages eg, when there has been oppressive or arbitrary behaviour
must have a deterrent effect. The larger and more prosperous the enterprise the greater by police officers, it should be kept in mind that these factors have already been taken
must be the amount of compensation payabie by n.
. ,,[66 B i d .. 167 . h
ut a ater eCls;on, Wit out into account while awarding aggravated damages, and exemplary damages should be
deciding the point finally, expressed doubts as to the correctness of the vie'.',! that the awarded if, and only if, it is considered that the compensation awarded by way of basic
damages recoverable must be correlated to the magnitude and capacity ~f the d~linquent damages and aggravated damages is in the circumstances an inadequate punishment for
industry, called it "an uncertain province of the law" and observed that lt was dIfficult to the defendants. (7) Any improper conduct on the part of the plaintiff, if proved can be
foresee any reasonable possibility of acceptance of this yardstick and, at any rate, t~ere taken into account in reducing or even eliminating any award of aggravated or
were numerous difficulties in its being accepted internationally. Exemplary damages m a exemplary damages if the conduct caused or contributed to the behaviour complained
libel action can also be allowed when the court is satisfied that the publisher had no of. The policy of the English Law is, however, not to encourage award of exemplary
genuine belief in the truth of what he published, but suspected that the words were damages and exemplary damages will not be allowed where compensatory award cannot
untrue and deliberately refrained from taking obvious steps which, if taken, would have be made eg where the claimant has not suffered any material damage. 170
.., . 168
turne d SuspICIon mto certamty. The High Court of Australia is of the view that when the wrongdoer has been
substantially punished under the criminal law and virtually the same conduct is the basis of
the civil action, exemplary damages may not be awarded as its purpose is wholly met
159. Holden v ChiefConrtable of Lancashire, (1986) 3 All ER 836: (1986) 3 WLR 1107 (CA). Ton by a 171
the substantial punishment. It may also be mentioned that in Australia the limitation
public authority like a Metropolitan Council in discharge of its public function:: will also attract
exemplary damages; Bradford City Metropolitan Council v Arora, (1991) 3 WLR 137 i (CA). But a tort laid down in Rookes v Barnard, 172 for gram of exemplary damages have not been accepted
by a statutory water undertaker carrying on a commercial operation of supplying water WIll not attract and exemplary damages are available in Australia in cases of conscious wrong doing in
exemplary damages; A.B. v South West Witter Services Ltd., (1993) 1 All ER 609 (CA). contumelious disregard of another's right.,,173 It is interesting to notice that the Law
160. Lucknow Development Authority v MK Gupta, AIR 1994 SC 787 P 798 : (1994) 1 SCC 243 : (1994) 13
Commission of u.K. has also recommended that exemplary damages may be allowed
CLA20.
161. Lucknow Development Authority v MK Gupta. AIR 1994 SC 78'1 p 798 : (1994) 1 SCC 243 : (1994) 13 where the defendant deliberately and outrageously disregarded the plaintiffs rights. 174
CLA20.
162. Common Cause a Registered Society v UO/, AIR 1999 SC 2979, P 3019 : (1999) 6 SCC 66'1. See further,
Rabindra Nath Ghosal v University of Calcutta, AIR 2002 SC 3560 : (2002) 7 SCC 478. 169. Thompson v Commissioner of Police (1997) 2 All ER 762 (CA), pp 774 to 776 (The case also contains
163. Common Cause II Registered Society v Union ofIndia, AIR 1999 SC 2979, P 3020. guidance regarding the amount to be generally awarded).
164. Common Cause a Registered Society v Union ofIndia, AlR 1999 SC 29'19, P 3020. 1'10" Watkins v Secretary ofState for the Home Department, (2006) 2 ALL ER 353 (HL) pp 365, 366.
165. MCMehta v UOl, (198'1) 1 SCC 395, P 421 : AiR 1987 SC 965: 1987 scc (L&S) 37. 171. Gray v Motor Accidents Commission, (1999) 73 ALJR 45.
166. MCMehta v VOl, (1987) 1 SCC 395, P 421: AiR 1987 SC 965: 1987 sec (L&S) 37- 172. Rooke.' v Barnard, (1964) AC 1129 : (1964) 2 WLR 269 (HL).
167. Charan Lal Sahu v Union of India, AlR 1990 SC 1480, pp 1545, 1557 : (1990) 1 SCC 613 . See 1'13. Gray v Motor Accidents Commission, (1999) 73 ALJR 45, P 48
further, p 547. 174. Report on Aggravated, Restitutionary and Exemplary Damages (no. 247, 1997)
168. John v MGN Ltd" (1996) 2 All ER 35: (1997) 3 WLR 403 (CA).
228 Law IX
Remedies 229
9.
and if he sues, he must sue past, present and certain and
V~'.'W'h~·H~. He cannot maintain an action for a arm, and for a
he not know of it he \-VillIW..;",.'-;U his first action.
out any measure the
of a
the fJldllHUH U'UHa:,,~u to at least a

act, are

of the case he fails to prove such

ordinary damages. 178 But where special damage the recovery of
out of the same transaction
is not the case he is not precluded from ordinary damages by
.
reason of his failure to prove t h ' 1damage. 179
e spena
cause of action which
The aforesaid between Damages Special Damages is. on
U<tllldl1',C 111 cause of action from
the law distinction between torts actionable per se and torts not actIonable
steadily is no such as a
Udl11d,;'- to the plaintiff. The special damage in the continuing cause action; but what is a cause of action is a cause of
uAF,U""~O "some special or material item of plaintiff's loss
action which arises from the of acts or omissions of the same kind as that for
consequence of the tort committed by the plaintiff and of
. . .ill t h which the action was If once a cause of action and the acts
be given notice eipd
ea 'mgs. ,,180 complained of are the cause of action continues and
die in diem. If a person is in a and recovers
9. .4.4 i'yn,f)er·twe Continuing Damages from the company and disease of the brain or of the
from the same cause of action must be at one and the same is solely due to the cannot a second
time as more than one action will not lie on the same cause of action. If a person is beaten or in the first action. But where the cause of action is a

181. Per Lord Bramwell in Darley Main Colliery Co v Mitchel, (1886) 11 Cases 127 (144); Raghubir
175. Prehn v Royal Bank ofLiverpool, (1870) LR 5 Ex 92,99. Singh v Secretary ofState for India, ILR (1938) All 658.
176. Ashby v White, (1704) 2 Ld Raym 938. . . . 182. Per Best, CJ in Richardson v Mellish, (1824) 2 Bing 229,240.
177. Riucliffi v Evans, (1892) 2 QB 524, 528 : 61 LJQB 535 : 66 LT 794 followed III ManJappa Chettzar v 183. Fetter v Beale, (1701) 1 Ld Raym 339 : 12 Mod 42.
Ganapathi Goundm, (1911) 21 MLJ 1052. 184. Hodsoll v Stal!ebrass, (1840) II A & E 301; Allan Mathewson v Chairman of the District Board of
178. Wilson v (1869) 11 WR 143. Manbhum, (1920) 5 PL] 359.
179. Mudhun Dass v Gokul Dass. (1866) 10 MIA 563. 185. Darley Main Colliery Co v Mitchell, (1886) 11 App Cas 127, 144: 54 LT 882 : 2 TLR 301; Bnmsden v
180. Winfield & Jolowicz, Tort, 12th Edn, p 621; Ratcliffe v Evans, (1892) 2 QB 524 (528); Strams Bruks Humphrey, (1884) 14 QBD 141 : 51 LT 529.
Aktie Bolag and Peter Hutchinson, (1905) AC 515, (525, 526). 186. Guest v Warren, (1854) 9 Ex 379.
187. Per Lindley, L], in Hole v Chard-Union, (1894) 1 Ch 293, 295 .
 Chapter IX Remedies 231
230 Law of Torts Chapter IX
for expert psychiatric evidence. Mental suffering not following physical injury which
continuing trespass), a fresh cause of action arises every day that such breach or injury does not amount toa recognisable psychiatric illness, irrespective of its severity or
continues; and it is open to the plaintiff to bring fresh action. \X7here the cause of action debilitating effect on the sufferer, is not redress able under the common law. 194 Mental
is not a continuing one the damage should be assessed once and for all. No fresh action suffering amounting to a recognisable psychiatric illness, when not consequent to
can be brought for any subsequent damage that may arise from that act. Not only the personal injury, is redressable in a limited class of cases for which purpose the sufferers
damage that has accrued, but also such damage, if any, as it is reasonably certain will are divided into two categories viz. primary victims and secondary victims. Primary
188
occur in the future, should be taken into consideration. The plaintiff should be victims are those who are participants in the event or in other words are in the actual
compensated for every prospective loss which would naturally result from the area of danger of receiving foreseeable personal injury but suffer only a recognisable
defendant's conduct, but not for merely problematical damages that may possibly psychiatric illness and escape personal injury by chance or good fortune. Primary victims
happen, but probably will not. are entitled to receive compensation for mental suffering which amounts to a
\X7here a wrong is not actionable in itself unless it causes damage, it will seem that as the recognisable psychiatric illness even if psychiatric illness was not foreseeable. 195
action is only maintainable in respect of the damage, or not maintainable till the damage is Secondary victims are those who are not participants in the event or in other words are
caused, an action will lie every time any damage accrues from the wrongful act. For not in the area of danger of receiving foreseeable personal injury but yet suffer
example, an action cannot be maintained for mere excavation, but a cause of action arises recognisable psychiatric illness. A plaintiff falling in the category of secondalY victim can
when damage to a person's property results therefrom by subsidence. Where there are, in be allowed damages if the following conditions known as 'control mechanism' are
such a case, successive damages, a fresh cause of action arises in respect of each successive satisfied: (1) The plaintiff must have close ties of love and affection with the main
damage. J89 Similarly, if A says to B that C is a swindler, and B refuses to enter into a victim. Such ties may be presumed in some cases (eg spouses, parent and child) but must
contract with C, C has a cause of action against A; if D, who was present and heard it, also otherwise be established by evidence. (2) The plaintiff must have been present at the
refuses to make such a contract, surely another action will lie. accident or its immediate aftermath. (3) The psychiatric injury must have been caused
by direct perception of the accident or its immediate aftermath and not upon hearing
J96
9.1.4.5 Damages for Mental Suffiring and Psychiatric Injury or Nervous Shock about it from someone else. A plaintiff who was an employee of the tort-feasor and
suffered psychiatric injury in the course of his employment but who was not within the
The common law regarding recovery of compensation for pure psychiatric illness also range of foreseeable physical injury has to prove the conditions mentioned above like
described by the expression nervous shock was reviewed by the House of Lords in White v other secondalY victims, for claiming damages and the mere fact of employer and
Chief Constable of South Yorkshire,190 where all relevant earlier authorities were considered. employee relationship with the tort-feasor cannot enable him to claim as a primary
The court noticed that this law "is a patchwork quilt of distinctions which are difficult to 197
192 victim. Similar is the position of a plaintiff who was a rescuer and suffered psychiatric
justifY.,,191 The court, however, declined to reform the law leaving this task to Parliarnent. injury by witnessing or participating in the aftermath but who was not within the range
For understanding the law as it now stands after White's case mental suffering has to of foreseeable physical injury. Such a plaintiff also cannot be given special treatment
be divided into different categories. Mental suffering which follows from foreseeable simply because he was a rescuer and has to prove the conditions mentioned above, like
physical injury is routinely compensated under the head 'pain and suffering' while any other secondary victim. J98 The effect of the decision in White 'J case is to finally
awarding compensation for personal injury. 193 Mental suffering which is not a replace the test of foreseeability of psychiatric injury to a person of normal fortitude
concomitant of physical injury is further subdivided into two groups. The first group which started from Hay or (Bourhill) v Young, 199 by the test of foreseeability of personal
embraces that mental suffering which does not amount to a recognisable psychiatric injury in case of primary victims and by the control mechanisms mentioned above in
illness even if it consists of extreme grief and the sufferer is debilitating. The second case of secondary victims. These tests which are reaffirmed in lVhite's case200 have their
group consists of that mental suffering which amounts to a recognisable psychiatric origin in Alcock v Chief Constable ofSouth Yorkshire Police,201 and Page v Smith. 202
illness. The difference between the two groups is often difficult to draw and is a matter

188. Lambkin v 5.E. Ry. Co., (1880) 5 App Cas 352. See Koomaree Dossee v Bama Soonduree, (1868) 10 WR 194. White v Chief Constable ofSouth Yorkshire, (1999) 1 All ER 1, P 31 See further pp. 111-113, ante.
202, in which damages for prospective loss were awarded because the defendant not only kept the 195. White v Chief Constable ofSouth Yorkshire, (1999) I All ER 1, pp 35,36,43.
plaintiff out of possession of her land but cut down all the fruit-bearing and timber uees, and carried 196. White v Chief Constable ofSouth Yorkshire, (1999) 1 All ER 1, pp 36, 41.
away or destroyed by brick making all the fertile soil. 197. White v Chief Constable ofSouth Yor/zshire, (1999) I All ER 1
189. Darley Main Colliery Co v Mitchell, (1886) 11 App Cas 127 : 55 LJQB 127 : 5"1 LT 882; Crumbie v 198. White v ChiefLimstable ofSouth Yorkshire, (1999) 1 All ER 1, pp 36, 41.
Wallsend Local Board, (1891) 1 QB 503. Depreciation due ro risk of future subsidence not taken into 199. Hay or (Bourhill) v Young (1942) 2 All ER 396: (1943) AC 92 : 167 LT 261 (HL).
account in awarding damages: West Leigh Colliery Co Ltd v Tunnicliffi and Hampson, Ltd, (1908) AC 27 200. White v Chief Constable of the South Yorkshire Police, (1999) 1 All ER 1 pp 40, 41 : (1999) 2 AC 455 :
: 24 TLR 146 : 77 LJ Ch 202. (1998) 3 WLR 1509 (HL).
190. (1999) 1 All ER 1 (HL). 201. Alcock v Chief Constable of South Yorkshire Police (1991) 4 All ER 907 : (1992) 1 AC 310 : (1991) 3
191. White v Chiej'Con.<t{ihle ulSouth Yor·kshire, (1999) 1 All ER 1, P 38 (Lord Steyn). WLR 1057 (HL).
192. White v ChiefCuflsUlbie ofSouth Yorkshire, (1999) 1 All ER 1, P 39. 202. Page v Smith (1995) 2 All ER 736: (1995) 2 WLR 644: (1996) AC 155 (HL).
193. White v Chief Constable ofSouth Yorkshire, (1999) 1 All ER 1, pp 30, 31, 40.

e
232 Law of Torts Chapter IX Chapter IX Remedies 233

Policy considerations have played an role in treating pure psychiatric injury satisfy condition no. 2 because were not present in the stadium and saw the scenes on
from personal injury and in limiting the area within which compensation can television. One of the plaintiffs Mr. A, who identified his brother-in-law in the mortuary
be claimed for the former. 203 at mid-night failed to satisfy condition no. 3 because he was not in time for the
Page v Smith,204 is a case where the plaintiff though in a position of a primary victim, immediate aftermath of the tragedy. The claims of others were also dismissed on similar
207
being directly involved in the accident, remained unhurt. The plaintiff, however, grounds. White v Chief Constable of the South Yorkshire,208 is second relevant case
suffered 'myalgic encephalomyelitis' a psychiatric illness with which he had earlier that arose out of the same football stadium disaster. In this case the claimants were a
suffered but which was then in remission. This illness which the plaintiff suffered as a number of police officers who were on dury at that time at the and who suffered
result a motor accident was not foreseeable in a person of ordinary fortitude but as post-traumatic stress disorder, a recognised psychiatric illness, while engaged in the
personal injury of physical harm which the plaintiff did not suffer was foreseeable, the rescue work in the aftermath of the disaster. The plaintiffs were not within the range of
plaintiff succeeded in recovering damages for psychiatric illness suffered by him. foreseeable physical injury but they claimed that they should be treated as primary
victims merely because they were employees of the tort-feasor and the nervous shock was
In Mcloughlin v O'Brian,205 the plaintiffs husband and three children were involved in
suffered in the course of employment. They also claimed special treatment as a primary
a road accident caused by the negligence of the defendants. One child was killed and the
victim on the ground that they were rescuers. The plaintiffs' claims were rejected on the
husband and the two other children were severely injured. The plaintiff at the time of
ground that they did not satisfy the test of being a primary victim as they were not in the
the accident was two miles away. After being told of the accident, the plaintiff was taken
range of foreseeable personal injury and the fact that they were employees of the tort-
to the hospital where she saw the injured husband and children and heard about the
feasor or the fact that they were rescuers did not enable them to as primary VICtim.
death of her The plaintiff suffered severe and persisting psychiatric illness and
was allowed damages for nervous shock. This case relates to a secondalY victim in which A third case which also arose out of the same football stadium disaster is Hicks v Chief
209
the 'control mechanisms' noticed above were satisfied. The plaintiff though not present Constable of the South Yorkshire Police. In this case the plaintiff made a symbolic claim
at the accident was present at the aftermath in the hospital and suffered nervous shock on behalf of his daughters who died in the disaster for the distress suffered by them before
on seeing her severely injured husband and children in the hospital. Close ties love they died. The claim was negatived holding that fear of impending death felt by the victim
and affection were presumed as the plaintiff was wife and mother of the injured. of a fatal injury before that injury is inflicted did not furnish any cause
Two cases which will be noticed hereinafter and which settle the present law relating But the common law relating to recovery of compensation for pure psychiatric injury
to damages for nervous shock arose out of a disaster in a Football stadium in Sheffield cannot be taken to have been finally settled by the decision in White v Chief Constable of
resulting in the death of 96 spectators and physical injuries to more than 400. It also South Yorkshire to cover all situations. This follows from the decision of the House of
2JO
scarred many others for life by emotional harm. The disaster occurred by the negligence Lords in W v Essex County Council. In this case the plaintiffs, parents of four young
of the police in allowing the overcrowding of two spectators' pen. Scenes from the children, were approved as foster carers by the defendant local authority. had,
ground were broadcast live on television from time to time during the course of disaster however, told the authoriry that they were not willing to accept child who was a
and later on television as news. News of the disaster was also broadcast over the radio. In known or suspected child abuser. Despite this the placed them a 15 year old
accordance with the guidelines, none of the television broadcasts depicted the suffering boy who was a child abuser, a fact recorded on the but which was not
or dying of recognisable individuals. The chief constable admitted liability in respect of disclosed to the plaintiffs. The boy so put in care sexually the four children of
those who died or were injured but denied liabiliry in respect of those who did not the plaintiffs. The plaintiffs who claimed to have suffered psychiatric illness after learning
06
receive any physical injury. In Alcock v The Chief Constable ofthe South Yorkshire Police/ of the sexual abuse of their children sued for damages against the local authority. Their
sixteen persons who did not receive any physical injury but suffered psychiatric injury claim was struck down as not maintainable, but the House of Lords reversed that decision
claimed damages against the chief constable. The plaintiffs were relatives or friends of the and remitted the case for trial without giving any either way as to outcome of
persons killed or injured in the disaster. Some of the plaintiffs were in the stadium at the the case holding that the existing case law did not conclusively show that the parents could
time of disaster but not in the area where disaster occurred. They alleged to have suffered not be primary or secondary victims and their claim could not be said to be so certainly or
nervous shock caused by seeing or hearing news of the disaster. One of the plaintiffs, Mr. clearly bad that they should be barred from pursuing it to trial.
H, who was present elsewhere in the stadium and whose two brothers died failed to satisfy A claim on account of nervous shock which was caused to a man who came up on a
condition no (1) of the control mechanism because the court refused to existence scene of serious accident for acting as a rescuer was allowed though the persons involved
of close ties of love and affection between brothers and no evidence was to prove that in the accident did not include any near relative,zll This case has been explained in
they existed in this case. Two of the plaintiffs Mr. & Mrs. C, whose son died failed to
207. In White v Chief Constable of Yorkshire Police, (1999) 1 All ER 1, P 41 : (1999) 2 AC 455: (1998) 3
203. White v Chief Constable o/the South Yorkshire Police, supra, pp 32, 33. WLR 1509 (HL), Lord Hoffman summarises the decision in Alcock.
204. Page v Smith (1995) 2 All ER 736 (HI,). 208. 1Vhite v Chief Constable ofthe South Yorkshire (1999) 1 All ER 1 (HL).
205. Mcloughlin v 0 (1982) 2 All ER 298: (1983) AC 410: (1982) 2 \'nR 982 (HL). 209. Hicks v Chief Constable ofthe South Yorkshire PoNce (1992) 2 All ER 65 (HL).
20G. Alcock v The Constable of the South Yorkshire Police, (1991) 4 All ER ')07: (1992) 1 AC 310 : 210. 1V v Essex County Council (2000) 2 All ER 237 (HL).
(1991) 3 WLR (HL). 211. Chadwick v British Transport Commission, (1967) 1 WLR 912: (1967) 2 All ER 945 .
234 Law of Torts Chapter IX Chapter IX Remedies 235

White's case212 to be a case the rescuer was in the zone of foreseeable personal allowed to parents when their child because of negligence of the hospital, where he was
213
injury. A mere bystander not in the danger zone cannot recover. Wainwright v Home tal(en for treatment suffered severe damage due to negligence of the hospital staff and was
2lS
Ojjice,214 is another case of the House of Lords relating to nervous shock. A mother and le~ in a. vegetative state. The child was separately allowed damages for the injury
son who were claimants in this case went to see another son who was in prison on a suffered m the same case. Damages for loss of consortium are allowed in fatal accident
219
charge of dealing in drugs. Claimants were strip-searched by the prison authorities cases. Damages for mental agony were also allowed under the Consumer Protection Act,
before being allowed to see the prisoner. The prison authorities acted in good faith in 1986 when a defective car was delivered to the purchaser who was held entitled to Rs.
strip searching the claimants without any intention to cause any distress to them but in 40,000 as damages for mental agony in addition to cost of repair of the ear. 220
certain respects the prescribed procedure was not followed, therefore, the searches were
not protected by statutory authority. \Vhen searching the son, one of the prison officers The Madras High Court has held that the theory that damages at law could not be
touched his penis. was no other physical contact with any of the claimants. The proved" in r~s~,ect ~r per~ona,! injuries. unless ther~ was some injury which was variously
son been so affected by the experience that he suffered post-traumatic stress disorder :alled ~~d!ly or phYSICal, but whIch necess:nly excluded an injury which was only
a recognised psychiatric illness. The mother suffered emotional distress but not any mental IS wrong at the present day. The body IS controlled by its nervous system and if
recognised psychiatric illness. The claim the son for damages succeeded on the ground by r~as?n. of an ~cute shock to the nervous system the activities of the body are impaired
~nd It IS mcapacitated from functioning normally, there is clear "bodily injury" and an
that touching his penis by a prison officer amounted to battery and he was entitled to
damages for recognised psychiatric illness which he suffered. The mother's claim for msurance company cannot seek to evade liability for damages for such nervous shock on
emotional distress was negatived. the strength of a cl,~use .in ~h.e p~,licy which makes th.e ~ompany legally liable to pay in
res~ect of death or bodIly mJ~ry to any person. But It IS only shock of such description
In Yearworth v North Bristol NHS215 the plaintiffs were cancer patients. They were whIch can be measured by dlrect consequences on bodily activity which can form the
treated in a hospital for which the defendant trust was responsible. The plaintiffs were . lOr
bas IS L .•
an actlOn
d
111 amages.-
27]

advised Chemotherapy which was to affect their fertility. Samples of their semen
were taken on the assurance that the same would be preserved with due care so that the The defendant, by way of practical joke, falsely represented to the plaintiff that her
sperms might be used in future when needed. But because of negligence in taking husband had met with a serious accident whereby both his legs were broken. By reason
reasonable care to preserve the sperm there was loss of plaintiffs sperm and knowing this of this misrepresentation the plaintiff suffered a violent nervous shock, and was made
they suffered a psychiatric namely a mild or moderate depressive disorder. The seriously ill, and her hair was turned white, and her life was for some time in great
court of appeal held that ahove facts gave rise to liabilities in negligence and danger; and her husband had to incur expenses for medical treatment for her. It was held
bailment and the case was recommended for trial. that the defendant was liable. 222

The courts in India have been more generous in awarding damages for mental suffering. Tl~e defendants were two private detectives. One of them was designing to inspect
Damages for mental agony in a case of harassment of the plaintiff by the officers of a certalll letters, to which he believed the plaintiff, a maid-servant, had means of access.
public authority were allowed under the Consumer Protection Act, 1986 by the Supreme ~e instructed the other defendant, who was his assistant, to induce the plaintiff to show
Court?16 In another case, compensation was awarded to a person for undergoing hIm the letters, telling him that the plaintiff would be remunerated for this service. The
unwarranted mental torture at the hands of police officers, while in custody. This award of assistant endeavoured to persuade the plaintiff by false statements and threats, as the
compensation was way of public law remedy which did not prejudice the remedies res~lt of which the plaintiff fell ill from a nervous shock. In an action by the plaintiff
agalllst the defendants for damages, it was held that the assistant was acting within the
available to the aggrieved person under private law?17 Damages for mental agony were also 223
scope of his employment and that both the defendants were liable.
The cases of Wilkinson (fn. 26 supra) and Janvier (fn. 27 supra) noticed above were
212. White's case, (1999) 1 All ER 1 p. 47(e)(HL). 224
discussed by the House of Lords in Wainwright v Home Ojjice As these cases related to
213. Me Farlane vEE Caledonia Ltd, (1994) 2 All ER 1 (CA).
214. Wainwright v Home Office (2003) 4 All ER 969 (HL). nervousshock thatis psychiatric illness and not merely of distress, the court observed that
215. Yearworth v North Bristol NHS (2009) 2 All ER 829 (CA.).
216. Lucknow Development Authority v MK Gupta, AIR 1994 SC 787, pp. 799. 800 : (1994) 1 SCC 243 : 218. Spring Meadows Hospital v Harjot Ahluwalia, (1998) 2 JT 620: (1998) 4 SCC 39: AIR 1998 SC 1801.
(1994) 80 Com Cases 714. Followed in Gaziabad Development Authority v Balbir Singh, AIR 2004 SC 219. Text and footnote 62, p 127, ante.
2141; Haryana Development Authority v Vijay Agarwala, AIR 2004 SC 3952. Distinguished in Gaziabad 220. jose Philip Mampillill) Premier Automobiles Ltd, (2004) 2 SCC 278, p. 281 : AIR 2004 SC 1529;
Development Authority v Union ofIndia, (2000) 7 JT 256, p. 261 : (2000) 6 SCC 113 : AIR 2000 SC Bangalore Development Authority v Syndicate Bank, (2007) 6 SCC 711 : AIR 2007 SC 2198 (Damage
2003 (compensation for mental agony cannot be allowed in cases of breach of contract). See further for mental agony.can. be allowe~ where the seller a statutory authoriry acts negligently, arbitrarily or
Farley v Skinner, (2001) 4 All ER 801 (H.L.) (An exceptional case where non-pecuniary damages were capnclOusly III dehvenng possessIOn. Case under Consumer Ptotection Act).
allowed for breach of contract) 221. Halligua v Mohansundaram, (1951) 2 Mad LJ 471.
217. Mehmood Nayyar Azam v State of CiJhattis:z.arh, (2012) 8 scc 1; See also Hardeep Sin:z.h v State ofMP, 222. Wilkinson v Downston, (1897) 2 QB 57 : 66 LJQB 493; see also, Dulieu v White & Sons [1901] 2 KB
(2012) 1 SCC 748 : (2012) 1 SCC (Cri) 684; Ra:z.huvansh Dewanchand Bhasin v State ofMaharashtra, 669.
(2012) 9 SCC 791; Sube Singh v State of Haryana (2006) 3 SCC 178; S Nambi Narayanan v Siby 223. janvier v Sweeney, (1919) 2 KB 316: 121 LT 179.
Mathews (2018) 10 SCC 804 224. Wainwright v Home Office (2003) 4 All ER 969, pp. 980, 981.

m
 IX Remedies 237
236 Law IX
fJU,nrtT1! 232 The

for distress short of

. 225 the sums under
cause It. The court of
234 "But at the
that there was no tort of
to cure any
or or other source of error. which
constitute a total of aarrl<lges, are the parts of the
which must be U,"l.,"-UHH.!dU.VU of the quantum may

would deem to be a fair sum such as

among his and say with their
or in other words what a Lok would award in a
must be not since the law
In a 239 All this means that the
element. Conduct
sum must be fair and reasonable24o legal all
and consequence elernent
requiring consideration must be viewed with objective
these the
statements made in the In RD Hattangadi v Pest Control (India) Pvt Ltd, 243 the mentioned
not the case. were elaborated. for pecuniary loss were to cover: (z) medical
In the Protection of Harassment the British Parliament expenses, (ii) loss of earning of profit upto the date of trial, (iii) other material
now provides for for as a result 'harassment', which is ~~.W'~~ Damages for non-pecuniary loss were said to cover: (i) mental shock,
to harassment. The Act already suffered or likely to be suffered in future, (ii) loss of amenities life which may
that 'a course conduct on at least two occasions. include a of matters such as inability to run or (iii) loss of pv,,~p,-j-~t-f
'·Prnpnf< are satisfied the claimant can pursue a civil for for if on account of injury normal longevity of the person concerned is shortened; (iv)

232. Lim Poh Goo v Camden and Islington Area Health Authority, (1979) 2 All ER 910 : (1980) AC 174 :
In the
(I979) 3 WLR 44 (HL). See further, Sushila Pandey v New India Assurance Co Ltd, AIR 1983 All 69;
Pest Control India Pvt. Ltd v Ramanand Devrao Hattangadi, AIR 1990 Bombay 4, pp. 11, 12; Shruti
another Shekhar Singh Samanta v Managing Director, Orissa Road Transport, Berhampur, AIR 1991 Orissa 225,
but has been p 228; Narbada v Sumh Chandra Mittal, AIR 1993 MP 26; Ghanshyam Patel v Vijay Mlmar Dubey,
of defendant's "'-hHi",'-~n L'o'1H-".R,L, AIR 1998 MP 216 p. 219. Victims in a motor accident were, it is submitted, wrongly allowed Rs.
10,000 for the mental shock and injury to family members in UP. State Road Transport Corporation v
that conduct. Jagjit Singh, AIR 1991 All 84, P 88; such a claim ought to be made by the family members themselves if
H'-5Hb~H'-'- for a course of tests laid down in title 1(D) (v) are satisfied.
illness. ,,230 233. Watson v Powles, (1968) 1 QB 596.
234. JeffOrd v Gee, (1970) 2 QB 130; Taylor v Bristol Omnibus Co., (1975) 2 All ER 1107 (CA); Klans
Mitterbachert v The East India Hotels Ltd., supra.
9.1.4. 235. Taylor v Bristol Omnibus Co, (1975) 2 All ER 1107 p. 1111 (CA).
236. Lim Poh Choo v Camden and Islington Area Health Authority, (1979) 2 All ER 910 (921) : (1980) AC
174: (1979) 3 WLR 44 (HL). See further Fizabai v Nemichand, AIR 1993 MP 79, pp 87, 88.
237. Basavraj v Shekhar, AIR 1988 Kant 105, p 108 (quoting Lord Devlin); Shruti Shekhar Singh Samanta v
Managing Director, Orissa Road Transport, Berhampur, supra.
238. Lado v Uttar Pradesh Electricity Board, Hindustan Times 17/12/87 (SC).
239. Concord ofIndia Insurance Co Ltd v Nirmala Devi, AIR 1979 SC 1666; (1980) AC] 55 : (1979) 4 SCC
365 (sq, p 56 (Fatal accident case); Hardeo Kaur v Rajasthan State Road Transport Corporation, AIR
1992 SC ]261, P 1263: (1992) 2 SCC 567 (Fatal Accident case).
240. See text and footnote 232, supra.
225. Wainwright v Home Office, (2003) 4 All ER 969, P 981. 241. General Manager, Kerala State Road Transport Corporation v Mrs. Susamma Thomas, AIR 1994 SC
226. Wong v Parkside Health NHS Trust (2003) 3 All ER 932 (CA). 1631, P 1632: (1994) 2 SCC 176: 1994AC] 1.
227. James Rhodes v OPO (by his litigation friend BHM) [2015] UKSC 32. 242. RD Hattangadi v Pest Control India Pvt Ltd, AIR 1995 SC 755, P 759; Divisional Controller KSRTC v
228. Wainwright v Home Office, (2003) 4 All ER 969, p 982 (para 46). Mahadeo Shetty, (2003) 7 SCC 197, pp 204,205.
229. Consolidated Rail Corporation v Gottshall, (1994) 5] 2 US 532, 544, 547, 548. 243. RD Hattangadi v Pest Control (India) Pvt Ltd, AIR 1995 SC 755; see also, Pooja Devi v General
230. Tame v New South Wales, (2002) 211 CLR 317, p. 319. Manager, Punjab Roadways FAO No.479/2007, Decided 0l.05.2015 (SB) Mansoor Ahmad Mir C].
231. See further Klam Mitterbachart v The East India Hotels Ltd, AIR 1997 Delhi 201, P 217 (22nd Edn, Himachal Pradesh High Court.
P 177 of this bookis referred).
238 Law of Torts Chapter IX
Chapter IX Remedies 239

inconvenience hardship, discomfort, disappointment, frustration and mental stress in Loss of expectation of life is a separate of damage when a normal expectation of
life. 244 It is submitted that item (iv) may already be covered in items (i) and (ii) and care life is shortened as a result of the injury.250 Medical evidence is generally required to
must be taken to avoid duplication. prove this though caution is necessary before accepting the evidence of medical men as
In Sapna v United India Insurance Company LtJA5 the court said in a case of motor evidence is necessarily speculative. Damages under are assessed putting
accident that the principles governing a claim petition for assessing the damages in case a money value on the prospective balance of happiness in the years the injuted
of bodily injury suffered is that "the Tribunal should consider all relevant circumstances might have otherwise lived and having regard to the uncertainties of life and difficulties
so as to enable the insured to be put in the same position as if he had not sustained any in assessment very moderate sums are awarded?51 head of damage has been
injury. The principle of restitution-in-integrum may be applied in a case of this abolished in England by the Administration of Justice Act, 1982. It may be mentioned
nature.,,246 It is submitted that the principle of restitutio in integrum can be applied only here that suffering experienced by the plaintiff from the awareness that life
to pecuniary loss not for non-pecuniary loss for the simple reason that the court cannot expectancy has been shortened will faU under the head "pain and suffering' and not
restore a person to the state of health which he enjoyed before he suffered a serious under the head 'loss of expectation of/ife'. 252
injury to his body or brain and the court can award only reasonable compensation the
assessment of which is essentially a guess work and assistance in this respect is taken Quantification of damages for non-pecuniary damage such as pain and suffering and
247 loss of amenities presents great difficulties. The court cannot restore a person to the state
from comparable awards.
of health which he enjoyed before he suffered a serious injury to his body or brain. The
Damage to semen of the plaintiff stored by the defendant for future use of the plaintiff court can award only reasonable compensation to the plaintiff for his suffering the
does not constitute personal or bodily injury even though the defendant was negligent in assessment of which is essentially a guess work. To bring about a degree of uniformity
248
t aki ng care 0 f the semen. and predictability, the courts have evolved certain rules. After referring in this context to
the speech of Lord Morris in West (H) & Sons Ltd v ShepharJ53 and to the decision of a
9.1.4.6.1 Non-pecuniary Loss
unanimous five member Court of Appeal in Ward v jameP4 a Division Bench of the
Pain and suffering consequent to injury inflicted on the plaintiff is a proper head of Madhya Pradesh High Court observed:
damage for which the defendant must compensate the plaintiff. It will include pain
The task of assessment of damages for non-pecuniary damage in personal injUlY actions is a
attributable to medical treatment for the injury. The amount of compensation will difficult one, for human suffering resulting from any serious bodily in jury cannot from its very
vary with the intensity of pain and suffering of the plaintiff. So, if the plaintiff after nature be valued in terms of money. But as the injured can be awarded only monetary
receiving the injury becomes wholly unconscious or is otherwise unable to experience compensation, the courts make an endeavour as best as they can to quantify non-pecuniary
the pain, he gets no compensation under this head, however serious the injury may be. damage in terms of money, having regard to the injUlY and the damage resulting from it. In the
Loss of amenities is a separate head of damage and covers deprivation of ordinary process of application, the wide discretion that the courts exercise in making awards of
compensation, like any other judicial discretion, has canalised itself into a set of rules. These
experiences and enjoyment of life. For example, if the plaintiff is deprived of his
rules are: (1) The amount of compensation awarded must be reasonable and must be assessed
ability to play games which he used to play before the injury, he would be entitled to with moderation; (2) Regard must be had to awards made in comparable cases; and (3) The
damages under this head. The important distinction between the heads of pain and sums awarded must to a considerable extent be conventional. It is only by adherence to these
suffering and loss of amenities is this that the fact of unconsciousness deprives the self-imposed rules that the courts can decide like cases in like manner and bring about a measure
plaintiff of any damages under the former head but not so under the latter. So, a of predictability of their awards. These considerations are of great importance if administration
plaintiff who is totally unconscious due to the injury will not receive any damages of justice in this field is to command the respect of the community.205
under the head pain and suffering but may yet receive substantial damages under the
head loss of amenities?49 Speaking generally, the court awards a lump sum as damages
covering both the heads. 250. Flint v Lovell, (1934) All ER 200: (1935) 1 KB 354 : 50 TLR 127; Rose v Ford, (1937) 3 All ER 359
(HL); Benham v Gambling, (1941) 1 All ER 7: (1941) AC 157 (HL); West (H) & Son Ltd v Shephard,
(1963) 2 All ER 625: (1994) AC 324 (HL); Vinod Kumar Shrivastava v Ved Mitra Vohra, (1970) ACJ
189 (MP) : AIR 1970 MP 172; Klaus Mittelbachert v The East India Holds Ltd, AIR 1997 Delhi 201 P
244. RD Hattangadi /) Pest Control India Pvt Ltd, AIR 1995 SC 755, P 759. See further Aswini Kumar Misra
218.
v P Muniam Babu, AIR 1999 SC 2260 P 2261 : (1999) 4 SCC 22. For these cases see text and
251. Rint v Lovell, (1934) lui ER 200: (1935) 1 KB 354 : 50 TLR 127
footnotes 22. 23, P 225; Divisional Controller KSRTC. Mahadeo Shetty, supra.
252. Winfield & Jolowicz, Tort, 12th Edn, p 625.
245. Sapna v United India Imurance Company Ltd (2008) 7 SCC 613 : AIR 2008 SC 228l.
253. West (H) & Sons Ltd v Shephard (1963) 2 All ER 625 (631) : (1994) AC 324 (HL).
246. Sapna v United India Imurance Company Ltd, (2008) 7 SCC 613, para 8 see p 225, infra.
254. Ward v James (1965) I All ER 563: (1966) 1 QB 273 (CA).
247. Sapna!1 United India Insurance Company Ltd, (2008) 7 SCC 613, para 8 see p 225, infra.
255. Vinod Kumar Shrivastava v Ved Mitra Vohra, (1970) ACJ 189 (194) (MP) : AIR 1970 MP 172 P 176
248. Yearworth v North Bristol NHS, (2009) 2 All ER 986 (CA).
(GP Singh J). These observation were reproduced by another DB of MP without referring to the earlier
249. Wise v Kay, (1962) 1 All ER 257: (1962) 1 QB 638; West (H) & Son Ltd v Shephard, (1963) 2 All ER
case Shafiq v Pro mod Kumar Bhatia, AIR 1997 MP 142, P 144. See futther, Sushila Pandey v New India
625 (HL); Lim Poh Chao v Camden and Islington Area Health Authority, (1979) 2 All ER 910 : (1980)
Assurance Co Ltd., AIR 1983 All 69; . Pest Control India Pvt Ltd v Ramanand Devrao Hattangadi,
AC 174 (HL). See further Valiyakathodi Mohammad Koya v Ayyappankadu Ramamoorthi Mohan, AIR
AIR 1990 Bombay 4, pp II, 12; Klaus Mitterbachert v The East India Hotels Ltd., AIR 1997 Del 201,
1991 Ker 47.
P 218 .
240 Law olTort,. Chapter IX Chapter IX Remedies 241

Referring to non-economic loss in personal injury actions, the House of Lords in the 9.1.4.6.2 Pecuniary Loss
same context observed:
. The pla~ntiff is obviously to the expenses consequential to the injury. This
Such loss is not susceptible of measurement in money. Any figure at which the assessor of Item will mdude expenses incurred for taking plaintiff to a hospital, purchase of
damages arrives cannot be other than artificial and, if the aim is that justice meted out to all medicines or equipment needed for his treatment, fees of private doctors if consulted
litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether
and simila: other expenses. If the plaintiff will require medical aid in future also,
jury or judge, the figure must be basically a conventional figure derived from experience and
from awards in comparable cases. 256
compensatIOn for that too has to be allowed.

Similar views have been expressed by the Supreme Court

257
after referring to the If ~he plaintif~s injuries are such that he needed nursing and attendance, the expenses
258 reqUlr~d for thIs are to ?e a~lowed under the head cost of care. Serious injuries
speech of Lord Morris in West (H) and Sons v Shephard. Before cases can be used as
sometimes make a person mvahd for years and even for life. The plaintiff in such cases
comparable cases, they must bear a reasonable measure of similarity; "it is necessary to
has to be compensated for cost of future care?66 Compensation for medical
ensure that in main essentials, the facts of one case must bear comparison with the
expenses has to be allowed on the basis of fair guest work after taking into account
facts of another before any comparison between the awards in the respective cases can . . h f me d·lca1 treatment. 267.
fairly or profitably be made".259 Further, in taking assistance from earlier awards, the l11crease In t e cost 0 It IS now settled that the plaintiff can
recover the value of nursing and other services gratuitously to him by wife
courts should remain conscious of the fall in the value of currency; indeed, the . 268 . '
conventional sums awarded for pain, suffering and loss of amenities should be parents. an.d other r~latlves. . Damages are awarded In such cases on the principle that
periodically reassessed to keep pace with inflation so that they do not lose contact with th~ .p.lalUtlIT s loss IS the. eXIstence of the need for those services. As expressed by a
DlVlslOn Bench of the GUJarat High Court:
reality and may serve as guide in other cases for similar injuries?60 Guidance on the
question of comparable awards has been elaborately furnished in Nagappa v Gurudayal Thevalue of such loss for purposes of damages or to put it differently for the purpose of the
1 ascertamment of his (plai.ntiff's) loss, is the fair and reasonable cost of supplying those needs. If
Singh26 The Court of Appeal in England issues guidelines and revises t-hem from time
the provIde: of such servICes gave up paid work or otherwise incurred loss of earnings and also
to time for award of damages for non-pecuniary 10ss.262 The House of Lords, however, underwent mCldental expenses to look after him, the plaintiff can recover as special damaaes a
in Lim Poh Choo v Camden and Islington Area Health Authorit/ 63 observed that an specified amount up to the date of the trial which is equivalent to the loss of such third p~rty.
award for pain, suffering and loss of amenities was dependant on a most general way For future att:l1dance and nursing, if need for the same is proved and the person providing
on the movement of money values and though in times of inflation there will be voluntary servICe agrees to render the same as long as he can continue to do so, the plaintiff can
recover general damages at a certain years' purchase on the basis of a datum figure which will be
tendency for conventional awards to increase, the requirement of law will be met if the
arrived. at taking into account the financial disadvantage of the third party. Even if the provider
sum awarded is a substantial sum in the context of current money values. As regards of servICes had not been doing paid work, but only domestic duties in the house, the plaintiff
an award for loss of expectation of there is comparatively much less scope for can still recover compensation for all the extra attendance on him on the basis of proper and
increase with the decrease in money value; an increase, if at all, will be justified "only reasonable cost of supplying those needs. The compensation in such a case would also be
to prevent the conventional becoming the contemptible"?64 It has also been held that referable to the past and future financial value of the voluntary services rendered such devoted
award of general damages for pain and suffering is not related to the status of the provider and the measure of damages will require to be worked out in the like manner as in the
other case. 269
plaintiff and suffering of a rich man is not more acute than the pain and suffering of a
265
poor riff_raff. The English law on this point as by the House of Lords 27o is that an
plaintiff can recover the reasonable value of gratuitous services rendered to him
of voluntary care by a member of his family or other person
256. Wright v British Railways Board, (1983) 2 All ER 698 (HL), P 699: (1983) 2 AC 773.
under this head are to be by the injured on trust for the
257. Jai Bhagwan v Laxman, (1994) 5 SCC 5. See further Divisional Controller KSRTC v Mahadeo Shetty,
(2003) 7 SCC 197 pp 203, 204 : AIR 2003 SC 4172- 266. Lim Poh Choo v Camden 6- Islington (1979) 2 All ER 910 (HL).
258. Footnote 244, supra. 267. Nagappa v Gurudayal Singh, (2003) 2 SCC 274, pp 282, 283 : AIR 2003 SC 674, p 682.
259. Singh v loong Fang Omnibus Co., (1964) 2 All ER 925 (927) (PC); Vinod Kumar Shrivastava v Ved 268. Wattson v Port olLondon Authority, (1969) I Lloyd's Rep 95; II Harrison, (1973) QB 942;

Mitra Vohra, supra, (ACJ). See further Delhi Transport Corporation v Kumari Lalita, AIR 1982 Del 558. Donnelly v Joyce, (1974) QB 454; Hay II Hughes, (1975) 1 All ER Taylor v Bristol Omnibus Co.,
260. Babu Mama v The Ahmedabad Municipal Corporation, 1978 ACJ 485 (494,495); (Gujarat); Narbada v (1975) 2 All ER 1107 (CA); Bharat Premji Bhai v Corporation, Ahmedabad, (1979) ACJ 264
Sureshchandra, AIR 1993 MP 26; Walker v John McLean & Sons Ltd, (1979) 2 All ER 965 (CA); Croke (Gujarat); Tejinder Singh v Inderjit Singh, AIR 1988 164 P 172. But when a is looked
(a minOlj v Wiseman, (1981) 3 All ER 852 (859) : (1982) 1 WLR 71 (CA). after under the national health service a nil award should be made in respect
261. Nagappa v Gurudayal Singh (2003) 2 SCC 274, pp. 284, 285 : AIR 2003 SC 674, pp. 681, 682. expense will be incurred in supplying the plaintiff's needs; Housecroft v Bumefit,
262. Heil v Rankin, (2000) 3 All ER 138 : (2000) 2WLR 1173 : (2001) QB 272 (CA). (1985) 135 NL] 728 (CA).
263. Lim Poh C"'hoo v Camden and Islington Area Health Authority (1979) 2 All ER 910 (920) : (1980) AC 269. Bharat Premji Bhai v Municipal Corporation, Ahmedabad, 1979 AC] 264 (Gujarat),
174 (HL). 270. Hunt v Severs, (1994) 2 All ER 385 (HL) p 394 : (1994) AC 350 : (1994) 2 . Giambrone 11
264. Ibid. fMC Holiday Ltd, (2004) 2 All ER 891 (CA). (The
265. Ramu Tolaram v Amichand AIR 1988 Bombay 304, p 311 : (1980) AC 174: (1979) 3 which damages can be allowed must be one which went
WLR44. ordinary regime of family life.)
242 Law of Torts Chapter IX Chapter IX Remedies 243

But when the voluntary carer is the tortfeasor himself, who later married the plaintiff, working life of the plaintiff, are assessed by the multiplicand multiplier method. 2sI The
there can be no ground in public policy or otherwise for requiring the tortfeasor to pay multiplicand is selected by estimating yearly loss of income after making allowance for
to the plaintiff, in respect of the services which he himself has !endered, a sum of money expenses, if any, including taxes, required for earning the same,z82 The selection of
Further, .t~e COutt. of
2d
as darr;afes which the plaintiff must then repay to him. multiplier takes into account the accelerated receipt of the entire amount in a lump sum
Appeal 7 has held that when the gratuitous service was rendered by the wlte for helpmg 283
and vicissitudes of life. The multiplier is, therefore, much less than the estimated
in running the business after injury to husband, the financial value thereof cannot be period of future loss of earnings. When life expectancy of the plaintiff stands reduced as
recovered as damages. The case thus restricts the House of Lord's direction to cases a consequence of the injury, he is entitled to claim compensation for loss of earnings of
where voluntary services are rendered as gratuitous carer. A gramitous carer, providing the lost years, ie for the years he would have lived had he not suffered the injury.284 But
his services to a relative, when injured which prevents him to provide the services can as the plaintiff is not expected to live during the lost years, in selecting the multiplicand
also in a personal injury action claim damages in respect of the loss of his ability to look for thi~ period, allowance must. be made for. the livirs~ ex~enses of the plaintiff. by
273
after his relative. deductmg the same from the esnmated yearly 1l1come. . ThIS allowance or deductlOn
Loss of earnings constitutes an important pecuniary loss for which damages are will be in addition to the allowance or deduction made for the expenses, if any, required
allowed. There are two fundamental principles in assessing damages for loss of for making yearly income. When a plaintiff is incapacitated but without aftecting his life
earnings.274 The first principle is that damages are compensatory and intended, so far as expectancy and is allowed, both, cost of care and loss of earnings, his living expenses
286
money can, to put the plaintiff in the same financial position as if the accident had never would be deducted from cost of care to avoid duplication. Cost of care is not allowed
happened.275 The second principle is that it is no concern of the tortfeasor how the for lost years and hence there is no question of duplication when damages for loss of
276 earnings are allowed for lost years, but as already seen, in assessing these damages, livin9
injured plaintiff chooses to dispose of his earnings. As an application of the first
principle, damages for loss of earnings are to be assessed at the net sum that would be expenses are deducted as the plaintiff is not expected to live during these years?8
available to the plaintiff after discharging his liability for tax, rather than his gross Damages are assessed with reference to the value of the currency on the date of
288
earnings before deduction of tax?77 As a further application of the same principle, any judgment and no notice is taken of future inflation. But the selection of the number
unpaid contributions to a pension scheme (whether made by the employee or the of years' purchase that is the multiplier is on the basis that the amount allowed as
employer) during the period the plaintiff was not.receiving his pay being off duty would damages will be invested at the interest rate of 4 to 5 per cent and yearly interest
not be recoverable as parr of his lost earninfs provided the non-payment of these supplemented by drawing on capital will yield the annual loss of income for the entire
contributions did not affect his pension.27 He would certainly be entitled to period for which loss of earnings are allowed and after the end of that period will stand
compensation if his pension was affected because of non-payment of contributions but exhausted. If it were assumed that the amount allowed as damages will be invested at the
he would not be entitled w recover both the contributions and the pension that those current rate of interest, the multiplier would be much less than what is usually allowed
contributions would have purchased since that would allow double recovery?79 The and so will consequently be the damages. The selection of multiplier with reference to
second principle is illustrated by the rule that it does not lie in the mouth of the tort interest rate of 4 to 5 per cent thus covers the contingency of future inflation or fall in
289
feasor to argue that because he has put the plaintiff in a hospital bed for six months he money value. The date of trial is the appropriate date on which to determine (a) the
must be given credit for the money that the plaintiff would have spent on his own actual loss of earnings upto that date and (b) the future loss of earnings based on a
amusement during that time if he had been able to do so.280 There is not much
difficulty in quantifYing the loss of earnings up to the date of judgment. Damages for 281. Lim Poh Choo v Camden and Islington Area Health Authority, (1979) 2 All ER 910 (HL) p 925 : (1980)
AC 174: (1979) 3 WLR44.
future loss of earnings, if it is likely to continue for a number of years or for the entire 282. Lim Poh Choo v Camden and Islington Area Health Authority, (1979) 2 All ER 910 (HL) P 925 : (1980)
AC 174: (1979) 3 WLR 44, British Transport Commission v Gourley, (1956) AC 185 (HL) and text and
footnote 265, supra.
283. Lim Poh Choo v Camden and Islington Area Health Authority, (1979) 2 All ER 910 : (1956) 2 WLR 41 :
271. Hunt v Severs is not [he law in Australia where the plaintiff is not to be regarded holding the relevant (1955) 3 All ER 796 (HL),. 925: (1980) AC 174: (1979) 3 WLR44.
damages in trust for the voluntary carer and it matters not the carer is the actual tortfeasor : Kars v Kars, 284. Picket v British Rail Engineering Ltd., (1979) 1 All ER 774 : (1980) AC 136 : (1978) 3 WLR 955 (HL).
(1997) 71 ALJR 107. But the decision has been criticised see (1997) 71 AL] 882. Bhagwandas v Mhd Arif, AIR 1988 AI' 99, p 103. But in case of children of tender years, the assessment
272. Warwick v Hudson, (1999) 3 All ER 426 (CA). being highly speculative, damages ror Joss of earnings of lost years will not be allowed.
273. Lowe v Guise, (2002) 3 All ER 454 (CA). 285. Picket v British Rail Engineering Ltd., (1979) 1 All ER 774: (1980) AC 136 : (1978) 3 WLR 955 (HL)
274. Dews v National Coal Board, (1987) 2 All ER 545 (HL), p 547. 286. Lim Poh Choo v Camden and Islington Area Health Authority, (1979) 2 All ER 910 (HL), P 921 : (1980)
275. Dews v National Coal Board, (1987) 2 All ER 545 (HL) AC 174: (1979) 3 WLK44.
276. Dews v National Coal Board, (1987) 2 All ER 545 (HL) 287. Lim Poh Choo v Camden and Islington Area Health Authority, (1979) 2 All ER 910 (HL) : (1980) AC
277. Dews v National Coal Board, (1987) 2 All ER 545 (HL) See further text and footnote 281, infra. 174 : (1979) 3 WLK 44; Picket v British Rail Engineering Ltd, supra.
278. Dews v National Coal Board, (1987) 2 All ER 545 (HL), p 549. 288. Lim Poh Choo v Camden &' lrlington Area Health Authority, (1979) 2 All ER 910 (HL), P 923 : (1980)
279. Dews v National Coal Board, (1987) 2 All ER 545 (HL) AC 174 : (1979) 3 \x/LR 44.
280. Dews v National Coal Board, (1987) 2 All ER 545 (HL), p 547. Bur 'domestic element' in the cost of 289. Lim Poh Choo t' Camden and Islington Area Health Authority, (1979) 2 All ER 910 (FlL) : (1980) AC 174 :
hospital and nursing care is deductible to avoid duplication (p 548). See text and footnote 286, infra. (1979) 3 WLK 44; Cookson v Knowles, (1978) 2 All ER 604 : (1979) AC 556 (HL). (A case oHatal accident) .
244 Law of Torts IX
Chapter IX Remedies 245

and ascertained from the facts as are at that 290

In the absence of of ILGS and actuarial tables decision of the House of
of 15 or 16 18 as the max:imum. 291 A Lords is not likely to affect any in India.
conventional to interest rate of 4 to 5 percent is not to
be further to allow for tax payable on income from award and it In assessing for loss of
should be assumed that the so selected will take care of not only intended to compensate the
inflation but future incidence of taxation?92 Further, a conventional selected the
the trial court should not be with by the appellate court reference
to actuana. 1ca1cuI'
atlOns. 293 Dam ages are also
who at the time of the accident had not yet started to earn. 294
"-HHU,'''-U damages
under this head are not confined to of wages also cover loss resulting
296
or
The statement in the paragraph that is selected on the hypothesis
that awarded would be invested to yield return at the rate of 4 to 5 per cent now
does not the field in The change in this respect has been brought about
because of the advent of Index-Linked Government Stock (ILGS). The return of income
and on ILGS is protected against inflation. the purchaser of £100 of
ILGS with a maturity date of 2020 knows that his investment will then be worth £1 00
x% where x the percentageincrease in the retail price index between the
of issue and date of maturity. Investment in ILGS for this reason
comparatively low rate of return which was about 3.5% in 1995. Fixation ofllHliU",ll'Cl
the basis of ILGS would thus be higher than on the basis of interest rate
per cent and would higher Law Commission (U.K.) in the rpr'l1rrm
1J'_H0'V'"

recommended fixation damages to return on ILGS in preference to interest are not taken into account wages or retirement
rate of 4 to 5 per cent. The recommendation was accepted the House of Lords in Wells 306 The annual sum !-'Cj""UH after the age of retirement
v where it was that investment in ILGS is most accurate way of calculating
the present value of the loss to which the plaintiff will actually suffer in real terms. In that
case taking the gross return on such investment at 3.5% and after allowance for tax 299. Foster IJ Tyne and Wear Country Council, (1986) 1 All 567 (CA). For cal(;lmmngloss of earning
from loss of a chance of career see Herring v (2004) 2 All 44 (CA). This case also
on income, the House of Lords regarded 3% as the appropriate return and damages for refers to Actuarial Tables (Ogden Tables edition and fatal
anticipated future losses and expenses were calculated on that basis. This case also holds accident cases.
that actuarial tables now be regarded as the starting point for selecting multiplier. 298 300. Foster 1) Tyne and Wear suffered a
fracture of the ankle joint. employer gave him the old
opinion was that the plaintiff will have to give up the
290. Pritchard v IH Cobben Ltd., (1987) j All ER 360 : (1987) 2 WLR 627 (CA.). In fatal accident cases years' sala1yas damages for loss of earning capacity.)
multiplier is selected with reference to the date of death. See text and footnotes 95, 96, p 13l. 301. Westwood. Secretary of State for Employment, (1984) 1 All ER 874 (HL), p 879; v
291. Winfield & Jolowicz, Tort, 12th Edn, p 633. (1988) 3 --,VI ER 870 (HL). But under section 2(1) of the Law Reform (Personal Act,
292. Hodgson v Trapp, (1988) 3 All ER 870 (HL). (U.K.) only one half of the value of benefits accruing for five years after accrual of cause of action are
293. Hunt v Severs, (1994) 2 All ER 385 (HL) p 396. alone to be deducted from damages and no deduction is to be nude for thereafter: Jackman
1J Corbett, (1987) 2 All ER 699 : (1988) QB 154 (CA). See further, v London Fire and Civil
294. Taylor v Bristol Omnibus Co., (1975) 2 All ER 1107 (CA); Croke (a minor) v Wiseman, (1981) 3 All ER
852 (CA). Defence Authority, (1991) 2 WLR 1052 : (1991) 2 SC 502 : (1991) 2 All ER 449 (HL); HtJssal V
295. Parry v Cleaver, (1969) 1 All ER 555 (HL); (1970) AC 1 (HL). Secretary ofState for Social Security, (1995) 3 All ER 909 (CA).
296, Lim Pooh Choo v Camden 6- Islington Area Health Authority, (1979) 2 All ER 910 (HL), p 925: (1980) 302. Bradburn v Great Western Railway Co, (1874) LR 10 Ex 1; v Cleaver, (1970) AC 1 (HL);
AC 174 (1979) 3 WLR44. Westwood v of State for Employment, supra, 879; Kandimallan Bhat-ati Devi v The General
297. Wells v Wells (I998) 3 All ER 481 (HL). Insurance ofIndia, AIR 1988 AP 361, pp 370; Smoker v l.ondon Fire and
298. Wells v Wells, (1998) 3 All ER 481 (HL), P 498. In England section 1 of the Damages Act, 1996 Authority, supra.
enables the Lord Chancellor to prescribe from time to time the rate of return expected from the 303. Gaca v Pirel!i General pIc (2004) 3 All ER 348 (CA).
investment of a sum awarded as damages for future pecuniary loss in action for personal injury which 304. Gaca v Firelli General plc (2004) 3 All ER 348 (CA).
the court shall take into account unless it finds that a different rate is more appropriate. By the Damages 305. Parry v Cleaver, (1970) AC 1 : (1969) 2 WLR 821 : 113 S] 147 (HL); Smoker v London Fire and
(Personal Injury) order 2001 the Lord Chancellor prescribed 2.5% as the rate of return. This is the rate Defence (1991) 2 All ER 499 (HL); see also, Lowick Rose LLP (in v Ltd.
which is now used for calculating damages for future pecuniary loss: See Warriner v Warriner, (2000) 3 [2017l UKSC 32, wherein the Court has expressed caution from the reasoning in case
All ER447 (CA). from being applied in every case in order to seem fair.
306. Longden v British Coal Corp., (1998) 1 All ER 289 (HL) .
 246 Law of Torts Chapter IX Chapter IX Remedies 247

be taken into account in reducing the loss of retirement pension. 307 If in addition to Karnataka High Court prefers a rate of 6% on the amount awarded from the date of the
recurring annual sum, the person receives a lump sum as part of incapacity pension, this claim application. 3i9 The award of interest on damages has an economic aspect, which
32o
lump sum is also not taken into account in calculating loss of wages up to the date of the Kerala High Court has examined in M Rajendran v UOI. It is held that on
retirement but an appropriate portion of this lump sum, appropriate for the post account of inflation and delay in award of damages, the tort victim is left to accept
retirement period, will be taken into account for calculating loss of retirement pension. 308 compensation at a depreciated value, for no fault of the vic~im. Thi~ also serves a
The reasoning why incapacity pension is not taken into account for calculating loss of windfall payoff for the tortfeasor, who has to make the payment 111 depreCiated currency.
wages is that pension and wages constitute "two quite different equation" and comparison Noting this disparity, [he High Court has awarded inter~st at 9% per annum from the
has to be made of "like with like".309 Bur sickness benefits contractually payable to the date of incident to actual paymem of the am.ount so awarded.
plaintiff by the employer are deductible even though the employer had insured himself
against this liability for such payments are designed to compensate the plaintiff for loss or 9.1.4.6.4 Illustrations
diminution of wages, and are of the same nature as wages and are not fruits of private
310 In Lim Poh Choo v Camden and Islington Area Health Authority 321 the plaintiff who at
insurance. Ex gratia payments made by the employer should also be taken into account
the relevant time was aged 36, was a senior psychiatric Registrar. In 1973, she was
for reducing damages when the claim is against the employer. 311 Redundancy payment admitted to a hospital controlled by the defendant for a minor Due to the
made by the employer, when the employee is made redundant, is also deductible. 312 Ex negligence of one of the hospital staff, the plaintiff suffered cardiac arrest and irreparable
gratia employment given to the victim by his employer, which can be terminated at any brain damage. She went to Penang where her mother was but eventually returned to
time, cannot be taken into account in assessing compensation against the tortfeasor when England as there was in Penang no proper institution where she could be taken care of.
he is not the employer of the plaintiff.313 The plaintiff was reduced to a helpless invalid for her life. She was so intelle~tually
impaired that she did not appreciate what had happened to her. But her .e~pectatIon of
9.1.4.6.3 Interest
ljfe which was estimated to be 37 years had not been reduced. Her condltlon was such
In England as also in India, interest is allowed on damages awarded. In England that there was a total loss of her earning capacity and she needed total care for the rest of
interest on non-oecuniarv loss is allowed at the conventional rate of2% from the date of her life. The award of damages as modified by the House of Lords was as under: Pain
writ to the date ~f judg~ent.314 Interest is also allowed on pretrial pecuniary loss but no and sufferino-, loss of amenities £ 20,000; out of pocket expenses-£ 3,596; cost of care to
interest is allowed on future pecuniary los5.
315
In India, the practice is to allow interest the date of j~dgment of the House (21st June, 1979)-£ 22,689.64; loss of earning to the
316 date of judgment at trial (7th December, 1977)-£ 14,213; cost of future care, i.e. from
from the date of suit or claim application. In Chameli Wativ Delhi Municipal
317 the date of judgment of the House by applying a multiplier of 12-£ 76,800; loss of
Corporation which was a fatal accident case, interest was allowed on the total award, as
future earnings from the date of judgment at the trial by applying a multiplier of 14-£
finally increased in appeal, from the date of the claim application at the rate of 12%.
84,000: loss of pension-£ 8,000; total £ 2,29,298.64.
The current practice in India seems to be to allow interest at the rate of 9 to 12% from
22
the date of application on the amount of compensation finally awarded. 318 But the In RD Hattangadi v Pest Control (India) Pvt Lti the plaintiff an Advocate aged 50
suffered 100% disability and paraplegia below the waist. He could move only in a whee~
chair. He was allowed for pecuniary loss damages for cost of medical treatment and
307. Longden v British Coal Corp., (1998) 1 All ER 289 (HL).
308. Longden v British Coal Corp., (1998) 1 All ER 289 (HL).
future, cost of care present and finure and loss of earnings present and future. In to
309. Longden /) British Coal COIp., (1998) 1 All ER 289 (HL), p 296 (where relevant passages from speeches damages for pecuniary loss, the plaintiff was allowed Rs. 1,50,000 pain a~d suffering and
of Lord Reed and Lord Wilberforce in Parry v Cleaner are quoted. the san1e an10unt for loss of amenities, i.e., in all R~. 3,00,000 for non-pecumary loss.
310. Hussain v New Taplow Paper Mills, (1987) 1 All ER 417 (CA.) : affd. (1988) 1 All ER 541 (HL); Parry 323
v Cleaver, 1970 AC 1, p. J 6: (1969) 2 WLR 82L In Ashwinikumar Misra v P Muniram Babu the appellant who was 23 years of age
311. Hussain v New Taplow Paper Mills, supra. and was earning about Rs. 2,000 per month was rendered permanently disabled and
312. Colledge v Bass Mitchells and Butlers Ltd., (1988) 1 All ER 536 (CA). paraplegic on account of injury received in a Motor accident. He was allo,:"ed .as
313. Pallavan Transport Corporation v P. Murthy, AIR 1989 Mad 14.
damages Rs. 94,037 for expenses incurred on medical care. Rs. 20,000/- for speCial diet
314. Wright v British Railways Board, (1983) 2 All ER 698: (1983) 2 AC 773 (HL).
315. Cooksan v Knowles, (1978) 2 All ER 604 : (1979) AC 556 : (1978) 2 WLR 978 (HL). (A fatal accident and expenses attendant during treatment. In addition he was allowed Rs. 3,84,000
case). (calculated by applying a multiplier of 16 to his yearly income of 24,000) "on account of
316. Section 34, Code of Civil Procedure; Section 110 CC, Motor Vehicles Act, 1939; & see further Vinod
Kumar Shrivastava II Ved Mitra, 1974 ACJ 189.
317. Chameli Wati 11 Delhi Municipal Corporation 1985 ACJ 645 : AIR 1986 SC 1191Followed in j'lgbir 319. ivfanaging Director, Kamataka Power Corporation v Gatha, AIR 1989 Karnt 104.
Singh v General Manager, Punjab Roadways, (1986) 4 sec 431 : AIR 1987 SC 70; Hardeo Kaur v 320. M Rajendran v UOL (2018) 1 KLJ 450.
Rajasthan State Transport Corporation, AIR 1992 SC 1261, P 1263 : (1992) 2 SCC 567. 321. Lim Poh Choo v Camden and Islington Area Health Authority (1979) 2 All ER 910 : (1980) AC 174 :
318. See 1985 ACJ Index, under the title 'Interest'. M(lharashtra State Road Transport Corporation v (1979) 3 WI,R 44 (HL). See further Dr MKGourikutty vMK Raghvan, AIR 2001 Ker 398.
Pushpaben Rajaram Bhai Patel, AIR 1990 Bom 214; Sardar Ishwar Singh v Himachal Puri, AIR 1990 322. RD Hattangadi v Pest Control (India) Pvt Ltd AIR 1995 SC 755, P 759: (1995) 1 SCC 55!.
MP 282. 323. Ashwinikumar Misra v P Muniram Babu AIR 1999 SC 2260 : (1999) 4 SCC 22.

o
 248 Law of Torts Chapter IX Remedies 249
Chapter IX

frustration and mental stress lodging could not continue in service went to live with her
a permanent to look after him in rest of no payment for board and In a suit for UdJ.U"-Ih""
terms Rs. 94,037 + Rs. 20,000 i.e. in all Rs. 1,14,037 claim damages, not only for loss of wages, also for loss
expenses ~V;"J"yU'-Wlld1 to injury and Rs. 3,84,000 were allowed for In Pushpa Thakur v UOP9 which was decided by the Court by a brief order,
cost of care as non-pecuniary damage i.e. pain and suffering, and the appellant, an unmarried girl of 23, suffered fracture of both legs, III
of expectation
amputation of leg in a road accident. The Supreme Court made a of
.. I Controuer
D'tvmona II
KSRTC v lvlahadeva Shetty324·IS another case of paraplegia. Rs. 1,00,000 12% interest from the date of its order. The principle
330
was a mason. The total compensation allowed was Rs. 4.50 lakhs. Out of this such cases was laid down in Hughes v Mckeown In a claim by a female fJia.'WUH
Rs. 2,04,000 was allowed for loss of income. The rest was allowed for pain and sustained a diminution of both her prospects of marriage and her
loss of prospect of marriage, medical expenses etc. correct approach is to consider the matter on the basis of the plaintiffs economic loss,
disregarding the intervention marriage, since during the period when a woman is
C~oke (~ minor) v. Wiseman,325 was a case plaintiff, a boy aged 21 months, was
and child bearing, she is still working, albeit in a different capacity, and is
adr~llt:ed m 1973 m a hospital for treatment. Due to negligence in the treatment, the
supported by her husband, which is an economic gain. The way of assessing
plamnff suffer~d cardio-respirato.ry arrest, resulting in irreparable brain damage. His brain
plaintiffs loss of future earnings is the court to fix the without regard to
;:0
~eased filllct.lO~; he blmd, and was unable to speak and was paralysed in all four
the possibility that as a result of marriage and child bearing, plaintiff would have
lImbs. fhe plamnffs gave up time career as a teacher to care for him. His life
ceased to work for a time. Similarly, damages pain and suffering and loss of amenities
expectancy was . to 40 years. The award as modified by the Court of Appeal was as
will include an amount for loss of the comfort and companionship of and will
follows: sufferIng and loss of amenities-f 35,000; future cost of nursing care-f
1, 19,000 (annual cost of nursing was valued at £ 2,500 and annual cost of extra disregard the economic aspect ofloss of marriage prospects.331
was v~ued at £ . . i.e. total annual cost of nursing was assessed at £8,500 per In Shashendra Lahiri v UNICEpJ32 a 17 year old boy a student of B.Com, met with an
annum to whIch a .mulnpller of 14 was applied); and loss of fimher earnings £ 25,000 accident while driving a motor cycle in which he suffered injuries resulting in
(annual loss of earmn?s :vas assessed at £ 5,000, and a multiplier of 5 was applied on the shortening of his leg by three inches. The boy continued studies the accident and
. that the plal11uff was not expected to start before and his maximum was found to be a good student. He was awarded Rs. 4 lakhs as by the
wO~king
333
40 as his life expectancy, have lasted only for 22 years, Supreme Court in addition to Rs. 58,000 awarded by the Court. In another case a
anG was receiving a sum more than 1 years before would ~~."HU~' student of ML course aged 25 suffered dislocation loss of 60% vision and
not allowed for loss of of lost years on the as held 50% hearing in the left ear and had to go to New York for treatment. The
in Picket v British in a case of child of tender years, the amount awarded him Rs. 3 lab~s as compensation in addition to 1,76,000 dHlJYVC;U
334
of that he lost in lost years was so speculative that Court. In yet another case a boy of 15 suffered P'" '''',,"H'_H,
H.-f.''''''''\'-'' dilatations throughout
Rs. 1 lakh for pain shock and ~U'HAHll'.
In the case of Lado v Uttar Pradesh

329. Pushpa Thakur v UOI (1984) AC] 559 : AIR 1986 se 1199. For injuries in of
either leg, left or right hand from Rs. 23,000 to Rs. 70,000 been
nf'I'f',rni<o"H"p in any form not different eourts; see v Chhabirani Seth, AIR 1991 Ori 218 and
~a.H'<""~0.
In this case, as 13 at 220
a 330. Hughes v Mckeown 3 All : (1985) 963 : (1985) 135 NL] 383.
wages and 33l. Hughes v Mckeown,(l985) 3 IJI ER 284: (1985) 1 WLR 963: (1985) 135 NL] 383.
332. Shashendra Lahiri v UNICEF (1997) 11 see 446. In the same accident the rider, who was
324. Divisional Controlier KSRTC v Mahadeva (2003) 7 sec 197 : AIR 2003 se 4172. earning Its. 500 pm in treatment
325. Croke (a minor) v Wiseman, (1981) 3 All ER 852: (1982) 1 WLR 71 (CA). partial disability was allowed to that allowed
326. Picket v British Rail Ltd (1979) 1 All ER 774 : (1980) AC 136 (HL) According to a Swatantra Kumar v Omt/r Ali, AIR 1999 sce
500 : (1998) 5 308.
guideline in of f 75,000 for pain and suffering and loss is appropriate 333. Muthaiah Shekhar v Tpt Corporation, AlR 1998 se 3064 : (1998) 7 see 39.
for a typical case of Housecroft v Burnett: .(1986) 1 All ER 332 (CA); typical case of 334. A Robert v United Insurance AIR 1999 SC 2977 : (1999) 8 sec 226.
tetraplegia is one where . IS fully aware of hIS has a life expectancy of 25 years or 335. Hindustan Times, 17/12/87. See further lshwardas Paulsrao Ingle v Genera! Manager Maharashtra Road
more, has powers of speech, and hearing and needs help . Transport Corporation, AlR 1992 Bom 396 (Loss of right forearm of aged 18 or 19 years, Rs.
327. jO)lce v Yeomans (1981) 2 All 21: (1981) 1 WLR 549 (CA). 50.000 allowed); Kumari Alka v UOI, AlR 1993 Del 267 (A female child aged 6 years lost two fingers
328. Liffin v Watson (1940) I KB 556 : 162 LT 398: 56 TLR 442. of her right hand, awarded Rs.l,50,000) .
250 Law of Torts Chapter IX 251
Chapter IX Remedies

Board's oHicials. In a petition directly to the Supreme Court under Article 32 of the Board, the House of Lords held that if there was negligence the mother would be
Constitution, she was allowed Rs. 75,000 as compensation. The court observed that she entitled by way of general damages to be compensated for the pain, discomfort and
would have got this sum from a Lok Adalat. inconvenience of the unwanted pregnancy and birth and she would also be entitled to
Minu B l'v1ehta v Balkrishna Ramchandra Nayan 336 was a case in which the respondent, special damages associated with both-extra medical expenses, clothes for herself and
a Surgeon, aged 63, at time of the award, was injured in a car accid~nt. The equipment on the birth of the baby, as also compensation for loss of earnings due to
respondent had a nursing home and consulting rooms. As a result of the injuries suffered pregnancy and birth. 340 It was, however, held that on principle it was not fair, just or
in the accident, the movement of the right elbow of the respondent got restricted reasonable to impose on the doctor or his employer the liability for damages for the
affecting his operative work. The Tribunal assessed loss of earnings of Rs. 73,779 for 4 economic loss of bringing up a healthy child which must be held to fall outside the duty
~ears before the award on a comparison of income-tax returns of four years prior to and of care, which was owed to the parents?4! In holding so the House of Lords took into
tour years after the accident. The Tribunal estimated future longevity of 7 years and account that in return for the love and expenses in caring, a healthy child also gives
assessed future loss of income for 7 years at Rs. 1,26,000 and deducted 50% for lump pleasure and affection to the parents and the value attached to these benefits is
sum payment and thus allowed Rs. 63,000 for future loss of earnings. The Tribunal also incalculable. McFarlane was reconsidered by the House of Lords in Rees v Darlington
allowed Rs. 5,000 for discomfort and inconvenience, i.e. pain and suffering and loss of Health Authority342 and was reaffirmed by a majority of 4 against 3. It was also held that
amenities. The award made by the Tribunal was upheld in appeal by the High Court it would not make any difference that the mother was disabled and this fact was known
and the Supreme Court. to the doctor who performed the sterilisation operation for the reason that the disability
Orienta! Insurance Company v Ram Prasad Verma 337 was a case in which the claimant was unconnected with the doctor's negligence and disabilities were generally taken care
met with a motor accident as a result of which both his legs had to be amputated and he of by public provisions made by the State in u.K. It was further held in a little variation
suffered 100% disability. The claimant was aged 55 years and his annual income was Rs. of ]tile Farlane that parent of a child born following a negligently performed vasectomy
2,27,471/- and tax deducted at source was Rs. 30,748/-. A multiplier of eight was or sterilisation or negligent advice on the effect of such a procedure was the victim of a
adopted. Having regard to items such as pain and suffering loss of amenities of life and legal wrong and should in all cases be awarded a conventional sum of £ 15,000 to mark
cost of care and need for an attendant the tribunal allowed Rs. 19,63,000/- as total the injuty and loss. This would be in addition to the award for general and special
damages with interest at 12% from the date of filing of the petition. The High Court damages for pregnancy and birth allowed in Mc Farlane. Even after Me Farlane it was
upheld the awards but reduced the interest from 12% to 9%. The Supreme Court in held by the Court of Appeal that where a child's significant disabilities flowed
appeal declined to interfere. foreseeably from the unwanted conception resulting from a negligently performed
sterilisation operation, damages were recoverable for the cost of providing for the child's
9.1.4.6.5 Damages for Unwanted Pregnancy Resulting from Medical Negligence special needs and care attributable to those disabilities but not ror the ordinary costs of
upbringing. This case was distinguished in Rees and not overruled.
Th~ question as to what damages are recoverable in case of unwanted pregnancy
resultmg from medical negligence in sterilisation operation has been considered in The same question came up before the Supreme Court in State of Haryana v Santr}43
different countries. It is generally accepted that the mother in such cases would be In this case the plaintiff a poor labourer woman had undergone a sterilisation operation
entitled to recover general and special damages for personal injury in suffering unwanted in a Government hospital under the 'sterilisation scheme' launched by the Government
pregnancy. But there appears to be a sharp divergence of opinion on the question of Haryana. At that time, she had seven children. She was issued a certificate of total
whether the parents would be entitled to recover damages for economic loss in rearing sterilisation operation and was assured that she would not conceive a child in future. But
up the child. 338 due to negligence of the doctor conducting the operation the sterilisation was not
complete as only the right fallopian tube was operated upon and the left fallopian tube
Cases on this point from different jurisdictions were considered by the House of Lords
was left untouched. As a result, the plaintiff conceived and gave birth to a female child
in Mci<""'ariane v Tayside Health Board'39 In this case one Mr. McFarlane underwent a
inspite of the operation. In the suit she claimed as damages the expenses needed for
vasectomy operation. Six months later he was told by the consulting surgeon that his
bringing up the unwanted child. The Supreme Court noticed that there was no
~perm count were negative and he could dispense with contraceptive precautions during
unanimity on this point in different countries but upheld the plaintiff's claim both
mtercourse. Mr. and Mrs. McFarlane who had four children relied upon this advice but against the doctor and the Government for damages for rearing up the child upto the
subsequ~ntly Mrs. McFarlane became pregnant and gave birth to a healthy daughter. In
age of puberty. In holding so court observed:
proceedmgs brought by Mr. and Mrs. McFarlane seeking damages against the Health
Ours is a developing country where majority of the people live below the poverry line. On
account of the ever-increasing population, the country is almost at the saturation point so far as
336. Minu B Mehta v Balkrishna Ramchandra Nayan (I 977) ACJ lIS: (1977) 2 SCC 441.
337. Oriental Insurance Company v Ram Prasad Verma (2009) 2 SCC 712: AIR 2009 SC lS31.
340. McFarlane v Tayside Health Board, (1999) 4 All ER 961, pp 970. 979,983.
33S. Mcforlane v Tayside Health Board, (1999) 4 All ER 961 (HL), p 970; State of Haryana v Smt. Santra,
341. McFarlane v Tayside Health Board, (1999) 4 All ER 961, pp 972, 991, 998.
AIR 2000 SC 1888, P 1895 : (2000) 5 SCC 182.
342. Rees v Darlington Health Authority (2003) 4 All ER 987 (HL).
339. McFarlane v Tayside Health Board (1999) 4 All ER 961 (HL).
343. State ofHaryana t' Santra AIR 2000 SC 1888 : (2000) 5 SCC 182 .
 252 Law IX IX Remedies 253
its resources are concerned. The on the basis of which have not been allowed
on account of failed sterilisation in other countries either on account
be '-U'.H".U but if
a child being offset against the claim for then
~~,,"~.,,~ ... so far as poor families are concerned. The trustee is entitled to ~VH'fJ'~C~
the Government is to control the and that is
have been launched to
~aH"'''~O for the

9.1.4.7 Injury to Property

damages is the

350. Lotus Line P. Ltd. 1) State, (1965) 67 Born LR 429: AIR 1965 SC 1314.
35 L Chabbra Shakti, (1986) 1 All ER 480, 484 : (1986) AC 337 : (1986) 2 WLR 87 (PC).
See further Co Ltd v Co Ltd, (1938) 4 Ali ER 389: (1939) AC
178 (HL).
352. C'habbra (1986) 1 All ER 480,484: (1986) AC 337: (1986) 2 WlR 87 (PC).
353. Chabbra {{tv .WaN:n. (1986) 1 All ER480, 484: (1986) AC 337: (1986) 2 WLR 87 (PC).

354. Smith Kline La"OTa'Wrl'es Ltd v Long, (1988) 3 AJI ER 887: (1989) 1 WLR I : (1988) 132 S]
553 (CA).
355. v Quentin, (1838) 8 C & p 703. The measure of for the loss of use of a horse when it
1) Santra, AIR 2000 SC 1888, P 1895 : (2000) 5 SCC 182.
permanently useless would be the market " horse; Jung Bahadur v
1) State ofU.P., AIR 2000 All 219; Smt Jyoti Kewat v State ofMP, 2003 (1) MPHT
Sunder Lal, AIR 1962 Pat 258.
356. Owners Comet (The Medina), (1900) AC 113 (HL); Weir,
346. State v Santra AIR 2000 SC 1888 : (2000) 5 scc J 82. See footnote 345, supra. Case on Tort, 5th pp 544, 545.
347. State v Shivram. (2005) 7 scc 1 (para 27) : AIR 2005 SC 3280.
348. State 357. Winfield & Jolowicz, Tort, 12th Edn, 647.
v Shivram See, p 537, infra.
349. See Rogers 358. Dimond v Lovell, (2002) 2 All ER 897 Lagdon v O'connor, (2004) 1 All ER 277 (HL). See further
Co. v John King 6- Co. Ltd., (1925) ILR 53 Cal 239. text and footnote 138, p 223 .
 Chapter IX Chapter IX Remedies 255
254 Law of Torts

plaintiff's damages were not limited to the difference between the amount of the the damages which are to be recovered finally by the Interim payment
valuation and the true value of the property at the time of the valuation, but that he was can ?nly ~e ordered w~en (i) has admitted or Cii) the plaintiff has
entitled to recover the actual loss suffered by him as a result of his lending the money, obtamed Judgment agamst the defendant for damages to be assessed, or (iii) if the action
including the difference between the sum advanced by him and that received by him proceeded to trial, the plaintiff would obtain judgment for substantial damages. Further,
when, having entered into possession of the property, he sold it; the amount of interest no order for interim payment can be made if it appears to the court that the defendant is
which the mortgagor had failed to pay; the cost of insuring the property and of ~~t (i) a person who is insured in respect of plaintiffs claim, Oi) a public authority, or
maintaining it in repair; while it was in the plaintiff's possession; legal charges during (m) a person whose means and resources are such as to enable him to make interim
that period; the expenses of abortive attempts to sell the property; estate agents' payment. In India, there are no corresponding statutes or statutory rules. The High
commission and the eventual sale of the property and legal charges in connection with Court of Madhya Pradesh has, however, held that interim payment can be ordered in a
the sale.
359
But the House of Lords has held that a person who lent money by relying on suit on the analogy of the English Rules which can be applied as principles of justice,
365
a negligent valuation and suffered loss of interest at the default rate of 45% mentioned equity and good conscience. It was on this basis that the High Court allowed interim
in the contract was not entitled to recover from the valuer as damages interest at the payment of RE. 250 crores in a suit on behalf of Bhopal gas victims and their dependants
above rate but only interest at the normal rate of 12%.360 against the Union Carbide Corporation. 366

The basic principle governing the measure of damages for damage to property in tort 9.1. 6 LomtJ'en"at:wn under Section Lode
as well as in contract is restitutio in integrum. But the application of this principle works
differently in different circumstances. Whether the assessment of damages should be on Section 357(1) of the Code of Crim.inal Proc~dure permits a court, while sentencing
the basis of diminution in value or the cost of reinstatement or some other basis depends an accused to fin~, to award compensation out ot the fine to any person for loss or injury
on the facts of each case. The question to be considered is: what is reasonable and fair caused by th~ ofte~c~l wh~n com.pensation is, in the opinion of the court, recoverable by
under the circumstances to put the plaintiff, so far as money can, in the same position as such person 111 a C1Vh SUlt. Section 357(3) allows a court while sentencing an accused,
he would have held had the tort not occurred.
361
So when income earning premises such when fine do~s not form part of the sentence, to order the accused person to pay by way
as a factory are seriously damaged or destroyed beyond repair, the plaintiff may be awarded of compensatIOn, such amount as may be specified in the order to the person who has
the cost of reconstruction or acquisition of new premises, including cost of replacing the suffered any loss or injury by reason of the act for which the accused person has been
destroyed machinery by new machinery, if that is the only reasonable way for the plaintiff sentenced. The Supreme Court adverted to section 357(3) in Harikrishan and State of
367
to carry on the business and to mitigate the loss of profit?62 It would then not be open for Haryana v Sukhbir Singh and said that all courts should liberally exercise the power to
363 award reasonable compensation. In addition to that, the Court has also held that once
the defendant to complain that the plaintiff is being given new for 01d.
cogni::ance is taken, it is the duty of the court to ascertain if there is any tangible
9.1.5 Interim Damages matenal to show commission of crime, whether the victim is identifiable and is in need
of immediate financial relief. 368
The court has no inherent jurisdiction to order interim payment of damages pending
the final disposal of a suit for it is not a matter of procedure but of substantive right.
364 The quantum of compensation may be determined by taking into account the nature
Absence of such a power in a court resulted in hardship in many cases. In England on of crime, the justness of claim by the victim and the ability of the accused to pay.
the recommendation of the Winn Committee on personal injuries litigation, provision . Po's p~ovided in section 357(5), at the time of awarding compensation in a subsequent
was made in section 20 of the Administration ofJustice Act, 1969 for making of rules to CIVIl SUit, the court shall take into account any sum paid or recovered as compensation
enable a court to make an order of interim payment. Rules 9 to 18 of order 29 of the under the section. In Sukhbir Singh's case the victim Joginder lost his power of speech
Supreme Court Rules made in that behalf regulate the grant of interim payment. Bridly permanently due to the injury suffered by him and he was awarded RE. 50,000 as
stated, the rules provide that a court may order the defendant to make an interim compensation. In Venkatesh v Tamil Nadu 369 where the accused was convicted for
payment of such an amount as it thinks just, not exceeding a reasonable proportion of homicide under section 304 Part II of the Indian Penal Code 1860 and sentenced to
rigorous imprisonment for five years and to pay a fine of Rs. 3,000 the Supreme Court
359. Baxter v Gapp (F. tv.) & Co., (1939) 2 KB 27l. reduced the sentence of imprisonment to the period already undergone and enhanced
360. Swing Castle Ltd. v Alastair Gibson, (a firm), (1991) 2 All ER 353 : (1991) 2 AC 223 : (1991) 2 WLR
the fine Rs. 100,000 and directed that the amount of fine so enhanced be paid as
1091 (HL).
361. CR Taylor (Wholesale) Ltd v Hepworths Ltd, (1977) 2 All ER 784 (CA.); Dominion Mosaics & Tile Co
Ltd v Trafalgar Trucking Co Ltd., (1990) 2 All ER 246 (CA.), pp 249, 251: (1989) 139 NLJ 364.
362. Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd, (1970) 1 All ER 225 (CA.); Dominion Mosaics 365. Union Carbide Corporation v UOI, 1988 MPL] 540.
& Tile Co Ltd. v Trafalgar Trucking Co Ltd., (1990) 2 All ER246: (1989) 139 NLJ 364 (CA). 366. Union Carbide Corporation v UOI, 1988 MPL] 540.
363. Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd, (1970) 1 All ER 225 (CA.) 367. Harikrishan and State ofHaryana v Sukhbir SinghAIR 1988 SC 2127, p. 2131 : (1988) 4 SCC 551 :
364. Moore v Assignment Courier Ltd, (1977) 2 All ER 842 : (1977) 1 WLR 638 (CA.); Shearson Lehman 1988 SCC (Cri) 984.
Bros v Maclaine Watson & Co, (1987) 2 All ER 181 : (1987) 1 WLR 480 (CA.); Union Carbide 368. Suresh v State ofHaryana (2015) 2 SCC 227
Corporation v UOI, (1988) MPLJ 540. 369. Venkatesh v TamilNaduAIR 1993 SC 1230: (1993) 4 scc 77.
256 Law of Torts Chapter IX
Chapter IX Remedies 257
compensation to the widow and minor daughter of the deceased. in Dr
370 enable courts to direct the State for payment of compensation to the victim where the
George v State ofKerala a homeopath conducted abortion and caused the death of the
compensation granted under Section 357 CrPe, was not to be adequate. It
woman. He was convicted under section 304 of the Indian Penal Code and to
. . f h
recogl1lzes compensatlOn as one 0 t e o protectlI1gf ' . . 378 G rant 0 f
vICtlm.
four years rigorous and to a fine of Rs. 5,000. . Court in
compensation under this Scheme and that under the law operate in
appeal reduced the sentence of to two months, the p~nod already
different fields. A victim is entitled to both. Supreme Court,
undergone, and enhanced the fine to Rs. one lac. The amount of fine was dlfect~d under
after granting compensation under the also granted under the
section 314 CrPe, to be in a bank as for benefit of a mmor son
of the woman. It has also held the Supreme Court that if the fine, which a public law remedies for mental injuries suffered victim on account of negligence
of State Authorities. 379
Magistrate can impose, is inadequate to compensate the . he can . of
imposing a sentence of fine directly proceed to award compensation under section
9.1.6.1 Compensation to Rape Victims
357(3), which fixes no limit as to the amount which can be awarded. Thus, a first-class
Magistrate, who could a fine of Rs 5000 under section 29 of the CrPe, was In Delhi Domestic Working Women's Forum v UOjl80 the Supreme Co un directed the
held to award Rs 83,000 as compensation to the complainant for an setting up of Criminal Inquiries Compensation Board to award compensation to a rape
under section 138 of the Negotiable Instruments Act, 1881. 371 The power of the court victim whether or not a conviction has taken In the
to award compensation to victims under section 357 is not ancillary to other sentences Board has to take into account pain, suffering shock as well as
but is in addition thereto and is a recompensatory measure to rehabilitate to some extent to pregnanClj and the expenses of the child if this nr,~""'rprl
the beleaguered victims of the crime, a step f,orward III . our cnmm
. . al"Justice system. 372 court trying an accused in a rape case has jurisdiction to to the
The section ensures that the victim is not forgotten by the criminal justice system, which victim of the rape under section 357 CrPe, after conviction. In one case, however,
is often the case?73 The accused has to be heard before directing payment of Supreme Court allowed interim compensation of Rs 1,000 month to the rape victim
compensation under section 357(3) although such a requirement is not mentioned in from the accused during the pendency of the criminal case. was passed under
374 In
the section. v State of Karnataka 375 the appellant was rAn"'rr~'r1 the court's inherent power under Article 142 of the Constitution to do ,"VH"n'-L\.
section 304-A of Indian Penal 1860 and section 279 and sentenced to one the parties.
imprisonment and a fine of Rs in all for rashly and negligently driving a
and causing death of a person who was driving a scooter. In appeal the Supreme Court
affirmed the conviction and sentence of fine but reduced the sentence of
The in the powers court to award proper damages in actions for
to period already undergone and directed payment of Rs 1,00,000 as .to injuries, when was a known risk of a
the mother of the victim section 357 the Code of Criminal Procedure. The or a serious deterioration of a presently existing and C1eltecteCl LUJIlUl.UU
court reiterated that the under section 357 is aimed at cured in England by empowering the court (a) to
serving the social purpose the power it should be exercised. B~t the ua.uw.l'.'-u on the assumption that the injured person will not
amount of awarded must be reasonable and not and should be in his condition, and (b) to award
lesser than the amount which a civil court wou ld grant m . . . '1
circumstances. 376 A ClVl the disease or the This
court while for an section 32A of the Court Act 1981 and the
has been that section. 381
into account any sum
in CrPe, in as of and
383
the State as well as the ,m"U/,!/111/11 Singh
the court did not advert to this aspect of
to compensate victims or the ueueHUCHL~ award cannot be reviewed and no can
to the crime. The purpose is to

370. Dr Jacob (1994) 3 SCC 430: (1994) 3 JT 225. 378. Suresh 11 State ofHaryana (2015) 2 sce 227; State (2015) 1 KLT (SN 84) 64.
379. Ms, Z v State ofBihar, (2018) 11 SCC 572
371. Pankajbhai AIR 2001 SC 567, P 571: (2001) 2 SCC 595,
372. Mangilal v State Pradesh, SC 1280, 1283 : (2004) 2 SCC 447, p 453; see also, 380, Delhi Domestic Working Womms Forum v UOIl995 (1) SCC 14 : 1995 sec (Cri) 7 See also, Abdul
Rashid v State ofOdish!t (2014) 117 eLT 826,
Satya Prakash v (2013) 203 DLT 652: (2013) 2 MAC 743.
373. Satya Prakash v State (2013) 203 DLT 652: (2013) 2 TN MAC 743. 381. See Practice Note (1985) 2 All ER 895; Hurdlteh v Health (1989) 2 All ER 869
374. Mangilal v State Pradesh, AIR 2004 SC 1280: (2004) 2 SCC 447 (CA), pp 872, 873, 874, 875 : (1989) QB 562 : (1989) 2 827.
375. Manish Jalan v State (2008) 8 SCC 225 : AIR 2008 SC 3074. 382. In Union Carbide Corporation v UOI, AlR 1992 SC 248, P 266, the question of provisional award was
376. Dilip S Dahanukar v Co Ltd, (2007) 6 sec 528 paras 38, 39 : (2007) 6 JT 204, discussed but it was left undecided whether courts in India can mal<e such an award.
377, D Purushotama Reddy v K Sateesh (2008) 8 SCC 505 : AIR 2008 SC 3202. 383. Nagappa v Gurudayal Singh (2003) 2 sec 274, pp, 282, 283 : AIR 2003 SC 674 Followed in Sapna v
United India Insurance Co, Ltd., (2008) 7 sce 613 para 12 : AIR 2008 SC 2281.
 Law of Torts Chapter IX Chapter IX Remedies 259
258

passed to compensate for expenses after the final award and such involve .im~~nent. danger of a substantial kind or injury that will be irreparable. 388
expenses can only be into account on the basis of guess at the time of final Pre~entlve InJunctlOn can be granted only when the defendant has violated or is going
award. to vlOlate some legal or equitable right of the plaintiff and not merely on the ground

In England the court has also the discretion under section 33 the Limitation Act, that what the defendant is threatening to do is unconscionable for him to do. 389 In
1980 to extend period of limitation in personal injury cases and this discretion appears ce:tain cases the C?urt may have to do a balancing between two rights, eg a right to
to have been applied. For example, if when the such as sexual abuse pnvacy and a nght to freedom of expression, before deciding to issue the
.. . 390
was was a pauper and the claimant did not sue him as she would lilJunctlOn.
have nothing but if later say after a few years the defendant received a lottery An injunction may be granted to prevent waste, trespass, or the continuance of
or gained enough property and claimant brought the suit for damages the court may n~isance to dwe!ling or business houses, to right of support, to right of way, to
384
be willing to extend the period oflimitation. hIghways, to femes, to markets, etc.; or the infringement of patent rights, copy-rights
and trademarks; or the publication of trade secrets; or the wrongful sale or detention of a
9.1.8 UtlmOfb?S iu Actious a/Tort chattel, or the publication of a libel or the uttering of a slander; or the disclosure of
The measure of damages, or test by which the amount of damages is to be ascertained is, in confidential communications, papers, secrets, etc.; or the publication of manuscripts,
letters, and other unpublished matter.
general, the same both in contract and in tort, with these distinctions:-
(i) The intention with which a contract is broken is perfectly immaterial: whereas The right to an injunction is governed in India by the Specific Relief Act 1963. 391
the intention with which a tort is committed may fairly be considered by the Grant of temporary injunction is governed by the Code of Civil Procedure 1908. 392
court in assessing the amount of damages. In actions of contract, evidence of
malicious motive is not admissible, in those of tort, it is. Thus, in an action for
throwing poisoned barley upon the plaintiffs premises in order to poison his 388. Mahadev v Narayan, (1904) 6 Born LR 123.
poultry, the court took into account the malicious intention of the defendant 389. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, (2001) 76 ALJR 1.
. d' d
11l awar mg amages.
385 390. Av B. (a company), (2002) 2 All ER 545 (CA). See also, p. 424.
391. See secti?ns 36 ~o 4~ of the. Specit~c Relief Act 1963 (XLVII of 1963) as regards the granting or
(ii) In cases of contract, damages are only a compensation. In cases of tort to the . wIthholdmg of mJunctIon. For lllJunCtIOn against Press in respect of a matter pending in Court see Reliance
properry, they are generally the same. Injuries to property are only visited with Petrochemicals Ltd v Proprietors ofIndian Express Newspapers Bombay Pvt Ltd, AIR 1989 se 190 : (1988) 4
damages proportioned in the actual pecuniary loss sustained, where damage, sce 592 (Balance between two competing public interests viz. freedom of press and administration of
pecuniary or estimable in money, is the gist of action. But where absolute JustIce. Test of present and imminent danger applied). For injunction against agent after termination of
agency to prevent interference with plaintiff's possession and business see : Southern Roadways Ltd.,
rights are infringed, a plaintiff is awarded nominal damages not because he has Madurai v 5.M Krishnan, AIR 1990 SC 673 : (1989) 4 sec 603. For injunct jon in favour of the
lost anything but because his rights are absolute. Where the injmy is to the government or a local authority to prevent repeated violations of criminal law see: Kirkless Metropoliton
person, or feelings, and the facts disclose fraud, malice, violence, cruel~, or Boraugh Council v Wickes Building Supplies Ltd., (1992) 3 All ER 717 (HL) pp 723-728 : (1993) Ae 227 :
38
insult, the injury is aggravated and the plaintiff gets aggravated damages but (1992) 3 WLR 170; For injunctions against enforcing bank guarantees, irrevocable letters of credit see:
they bear no proportion to the actual loss sustained by the plaintiff. Exemplary Svenska Hande.lsba:lken v In.dian Charge Cnrome, AIR 1994 SC 626 : (1994) 1 sce 502. For principles
goverlllllg AntI-SUIt InjunctIon see Modt Entertainment Network v WSG Cricket Pty Ltd, AIR 2003 SC
damages are also allowed in a tort action against the State or its officers when 1177 : (2003) 4 SCC 341.
the action complained of is oppressive, arbitrary or unconstitutional and also 392. Order 39, Code of Civil Procedure. For principles applicable see American Cyanmid v Ethicon, (1975) 1
against a defendant who by committing the tort makes profit which may All ER 504: (1975) 2 WLR 316 (H.L.); Hadmor Productions Ltd v Hamilton, (1982) 1 All ER 1042 :
exceed the normal compensation payable by him?87 But exemplary damages (1983) 1 AC 191 : (1982) 2 WLR 322 (HL); Attorney General v Guardian, (1987) 3 All ER 316 (HL);
cannot be recovered for a breach of contract, except in an action for breach of Shankerlal Debipmsad Rathore v State of MP, 1978 MPLJ 419; Morgan Stanley Mutual Fund v
Kartickdas, (1994) 4 SCC 225 : JT 1994 (3) SC 654 (Principles for grant of ex parte injunction),
promise of marriage. ~unicipal Corforation of Delhi v CL. .Batra, JT 1994 (5) SC 241 (Principles for grant of interim
Il1JunctlOn agamst a munICipal corporation restraining it to recover tax); SM Dyechem Ltd v Cadbury
Injunction (India) Ltd, AIR 2000 SC 2114 : (2000) 5 SCC 573 (Principles for grant of i;lterim injunction in a
Trade Mark case); Mahendra and lviahendra paper Mills v Mahindra and Mahindra Ltd, AIR 2002 SC
An injunction is an order of a court restraining the commission, repetition, or 117 : (2002) 2 SCC 147 (Injunction in a Trade Mark case). DharwalIndustries Ltd. v Mis. MSS Food
continuance, of a wrongful act of the defendant. To entitle a party to an injunction he Products, AIR 2005 SC 1999 : (2005) 3 SCC 63 (interim injunction in an unregistered mark case);
Midas Hygine Industries (P.) Ltd. v Sudhir Bhatia, (2004) 3 scc 90 (Interim injunction should
must prove either damage or apprehended damage. The apprehended damage must
normally b~ granted when there is prima focie an infringement of trade mark or copyright). Ajay Mohan
v H.N Rat, (2008) 2 SCC 507 : AIR 2008 SC 804 (Prima focie case, balance of convenience and
384. A v Hoare, (2008) 2 All ER 1 (H.L.); see also, BCL Old Co Ltd v BASF Pic [2012] UKSC 45. irreparable injury to be shown for interim injunction). For interim mandatoty injunction see: Dorale
385. Sears v Lyons, (1818) 2 Stark 317. Cawasji Warden v Coomi Sorab '>'Varden, AIR 1990 SC 867 : (1990) 2 SCC 117; Redland Bricks Ltd. v
386. See title 9.1.4.2, pp 224-227, ante. Morris, (1969) 2 All ER 576 (HL); Francis vKensington and Chelsia London Borough Council, (2003) 2
387. See tide 9.1.4.2, pp 224-227, ante. All ER 1052, P 1058 (CA).
 IX Remedies 261
260 Law Chapter IX

under torts, where 'A' acts to U.V,.W'L'VL'- 'B'.

of 'A' 'B'

When persons, in concert,

substantially cause to are not
tort-feasors but several or concurrent tort-feasors. The ,-,-,".'Udll",'- several tort-
feasors may the same or it may be distinct tort-
In case where the each of the several
Institute and has
each of them is only for to his own act.
in respect several <nrr_n''''<r>
"A person confers benefit upon another if he gives to the other possession of or some other nearly the same as in respect of
interest in land, chattels, or services beneficial to or at the request of the other, kept in view in respect of the
satisfies a debt or a of the other in a way adds to the other's security or He
causing the same or
confers a benefit where he adds to the property of anorher but also where he saves the
other from expense or loss. Thus, the word "benefit" therefore denotes any form (i) tort-feasors are
a case for restitution can be out if it is that a benefit has been from the tort. They may be s~ed jointly or If sued the damages may
401
either conferred or received and the same is enrichment. levied from all or either. Each is responsible for the injury sustained. 402
A03
In a suit for "composite negligence the plaintiff is not to a strict analysis
of the proximate or immediate cause of the event to find out whom he can sue.
All persons who act, Subject to the rules as to remoteness of damage, he is to slIe all or any of
because their negligent persons and it is no concern of his whether there is any duty of contribution
one damnum.
397
To constitute a or indemnity as between those persons, though in any case he cannot recover on the
whole more than his whole damage. He has a to recover the full amount of
not separate. 398 T'lIe anses
damages from any of the defendants. 404

when one person EI11f)!O\TS another to do an act which turns out to be

a tort.
(ii) i.e. the liability from relations, such as master and 400. Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10; see also, Frand,en AIS (now
MVF 3 ApS v Bestnet Europe Ltd [2013] UKSC 31 (Even though this was a case relating to misuse
and agent, guardian and etc., which is discussed in
of confidential information or trade secrets, the UK Supreme Court employed the concept of
'common design' under tort law. It was lucidly explained that if a driver of a car drives a person to
action-where two more a bank to enable him to rob it, the driver would be liable in ton for the robbery under common
which amounts to a tort. This design, only if it was in the knowledge of the driver that the passenger intended to rob the bank
(refer Para 35),
401. Hume v Oldacre, (1816) 1 Stark 351; Blair and Sumner v Deakin, (1887) 57 LT 522; Sutton v Clarke,
393, Relief Act, 1963, section 6. See chapter XV, tide 15.4,2, p 425, infra. (1815) 6 Taunt 29, See Kamala Prosad Sukul v KiJhori Mohan Pramanik, (1927) ILR 55 Cal 666;
394, Relief Act, 1963, section 7. C'alico Printers Association v Mitsubishi Shoji Kaisha, Limited, (1938) 40 Born LR 661; Kanhaiyalal v
395. v Essar Oil Limited (2012) 3 SCC 522; See also, Naf!jJur Golden Transport Cornpnay Chirnanbhai, (1954) 3 MLR 379,
i(e!7tSt,ereli) v Nath Traders, (2012) 1 SCC 555; Vee Rice and General Mills v State 402, De Bodreugnam v Le Arcedekin, (1302) YB 30, Edw I fo 106; Ajoodhya v Laljee, (1873) 19 WR 218;
(2010) 10 SCC 687. Shama Sunkur v Sreenath, (1869) 12 WR 354; Harihar Pershad v Bholi Pershad, (1907) 6 CLJ 383;
396, Petrie v Lamont, (1841) Car & Mar 93, 96, A lessor does not become jointly liable with his lessee for Coercion is no defence: Ganesh Singh v Ram Raja, (1869) 3 Beng LR (PC) 44; Biresshur Dutt
the latter's tort reason of his the lessor or by any encouragement of the lessee in the Chowdhury v Baroda Prosad Ray Chowdhury, (1906) 15 CWN 825; Gajo Singh v Amrit Narain, (I921)
absence of evidence had made party to the tort : Pugh v Ashutosh Sen, (1928) 56 lA 93; 2 PLT 234; Ahsanali v Kazi Syed Hifozat Ali, ILR (1956) Nag 378.
31 Born LR 702; The Orientallnsurance Co Ltd v Shohana Ornanakuttan (2015) 2 KiT (SN 148) 125 403. It means negligence of two or more persons other than the victim of the negligence, when victim of the
: (2015) 2 TN MAC 55 (DB); Sabafv Meneghetti [2002] EWCA Civ 976; [2003] RPC 264. negligence is also partly responsible, it is a case of comributOlY negligence : Pujamma v G Rajendra
397. The Koursk, 140; Chainatarnano v Surendranath, ILR (1956) Cut 587. Naidu, AIR 1985 Mad 109, p, 112.
398, Thompson v Lonckm Council, (1899) 1 QB 840; Sadler 11 G, WRy, Co" (1896) AC 450 : 53 JP 404, Palghat Coimbatore Transport Co Ltd v Narayanan, ILR (1939) Mad 306, Prasani Devi v State of
694: 3TWR 582; v Dookeerarn Khottah, (1874) 15 Beng LR 161. Haryana, 1973 AC] 531 (P&H); Sushma Mitra v MP State Road Transport Corporation, (1974) ACJ
399. The mere coincidence of a number doing a series of acts whereby the plaintiff is injured will
(MP), pp 91, 92; Hira Devi v Bhaba Kanti Das, AIR 1977 Gall 31 (F.R); Pujamma v G Rajendra
not make them joint rort-feasors. It must be shown that they acted concurrently: Subbayya v Naidu, AIR 1988 Mad 109, p 112,
(1935) MWN 1043,42 LW 17,
262 Law of Torts Chapter IX Chapter IX Remedies 263

A case of 'composite negligence' is sometimes confused with 'contributory negligence'. As a result of a collision between two buses a passenger in one of the buses died. The
The distinction between the two was well brought out by Balakrishnan C.].I. in accident was the result of negligence of the drivers of both the buses. In a suit under the
TOAnthony v Karvarnan 405 as follows: Fatal Accidents Act by the representatives of the deceased, it was held that the owners of
"Composite negligence' refers to the negligence on the part of two or more persons. Where a
both the buses were liable as the injury arose from the composite negligence of the two
person is injured as a result of negligence on the part of two or more wrongdoers, it is said that drivers. 412
the person was injured on account of the composite negligence of those wrongdoers. In such a
(ii) Under the common law a judgment recovered against one joint tort-feasor, even
case, each wrongdoer is jointly and severally liable to the injured for payment of the entire
damages and the injured person has the choice of proceeding against all or any of them. In such though it remained unsatisfied was a good defence to an action against any other joint
413
a case, the injured need not establish the extent of responsibility of each wrongdoer separately, tort-feasor in respect of the same tort. In contrast to this when same or indivisible
nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. damage was caused by several tort-feasors, as frequently happens in running down
On the other hand, where a person suffers injury, partly due to the negligence on the part of actions, a judgment recovered against one of the tort-feasors did not put an end to the
another person or persons, and partly as a result of his own negligence, then the negligence on cause of action against any other of the tort-feasors until it had been satisfied. It did so
the part of the injured which contributed to the accident is referred to as his contributory
negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated
then because on satisfaction of the judgment the plaintiff had recovered full
merely by reason of the negligence on his part but the damages recoverable by him in respect of compensation for his loss which he could not recover twice. But so long as the earlier
the injuries stand reduced in proportion to his contribmory negligence. judgment remained unsatisfied it was not a bar at common law to a subsequent action
against any other of the tort-feasors nor did it affect the measure of damages that might
In assessing damages against joint tort-feasors or several tort-feasors causing same or · su bsequent actlOn.
. 414
be awar d ed m
indivisible damage one set of damages will be fixed, and they must be assessed according
406
to the aggregate amount of the injury resulting from the common act or acts. The The Common Law stated above was altered by section 6 of the Law Rdorm (Married
damages cannot be apportioned so as to award one sum against one defendant and Women and Tort-feasors) Act 1935 which was later replaced with modification by
another against the other defendant, though they may have been guilty in unequal section 6 of the Civil Liability (Contribution) Act 1978. The law now is that a judgment
407
degree. If two omnibuses are racing, and one of them runs over a man who is crossing recovered against one tort-feasor, if unsatisfied does not bar a subsequent action against
the road and has no time to get out of the way, the injured person has a remedy against any other tort-feasor irrespective of whether he was a joint tort-feasor or one of the
the proprietors of both or either of the omnibuses. 408 several tort-feasors causing the same or indivisible damage. Nor is the second action
limited to the sum for which the judgment was given in the first action. But the plaintiff
Those who are sued cannot insist on having the others joined as defendants. The mere is not entitled to costs in any later action unless the court thinks that there were
omission to sue some of them will not disentitle the plaintiff from claiming full relief
409 reasonable grounds for not bringing one action against all the tort-feasors. 415 Of course
against those who are sued. The fact that the claim is barred by limitation as against the plaintiff remains barred from going on with a separate action against another tort-
one will not in itself free the others from liabiliry.410 feasor if the judgment which he has obtained in the first action been satisfied. 416
Two dogs, belonging to different owners, acting in concert, attacked a flock of sheep ,.... U n d er t h e common j aw as deve1oped after Brown v Wooton 417 a release granted to
\lll)
and injured several. In an action for damages brought against the owners of the dogs,
one or more of the joint tort-feasors operates as a discharge of the others. The reason
one of them put in a defence claiming that he was liable for one-half only of the damage.
being that the cause of action, which is one and indivisible, having been released, all
It was held that in law each of the dogs occasioned the whole of the damage as the result
persons otherwise liable therefor are consequently released. 418 But as in case of several
of the two dogs acting together, and that consequently each owner was responsible for
411 tort-feasors causing the same or indivisible damage the cause of action is not one and
the whole.
indivisible release granted to one of several tort-feasors does not release others. This
is now, if at all, the only substantial distinction between joint tort-feasors and several
L . . d' . 'bI d 419
405. TOAnthony v Karvarnan (2008) 3 SCC 748 para 6 : (2008) 3 SCC 748 See further Pujamma v G tort-reasors causmg In IVISI e amage. A mere agreement not to sue one of them is
Rajendra Naidu, AIR 1988 Mad 109 p.112; Vinesh Kumari v Rajendra Kumar (20 J 0) 1 TN MAC 663 :
(2010) 80 ALR 1 : (2010) 4 All LJ (NOC 422) 97 (on the issue of 'composite negligence').
406. Chapman v Ellesmere (Lord), (1932) 2 KB 431: 146 LT 538. 412. Palghat Coimbatore Transport Co Ltd 0 Narayanan, ILR (1939) Mad 306. See further other cases in
407. Clark v Newsam, (1847) 1 Ex. 131, London Association for Protection of Tradr: v Green Lands Ltd., footnote 408, supra.
(1916) 2 AC 15 : 114 LT 434; Greenlands Ltd. v Wilmshurst etc., (1913) 3 K.B. 507 : 109 LT 487; MP 413. Bryanstan Finance Ltd v de vires, (1975) 2 All ER 609 (CA), pp 624, 625 : (1975) 2 WLR 718: 1195]
State Road Transport Corporation v Abdul Rahman, AIR 1997 MP 248, p. 253 (also see cases referred to 287 (Lord Diplockl.
therein). See further cases in foonote 395, supra. The Punjab and Haryana High Court holds that 414. Bryanstan Finance Ltd v de vires, (1975) 2 All ER 609 (CA) : (1975) 2 WLR 718: 119 S] 287
Motor Accidents Claims Tribunal can apportion compensation amongst tort-feasor, : Narinder Pal 415. Clerk & Lindsell, Torts, 15th Edn, pp 357, 358.
Singh v Punjab State, AIR 1989 P&H 82. 416. Jameson 11 CentralEkctricity Generating Board, (1999) 1 All ER 193 (HL), P 203: (2000) 1 AC 455.
408. Per Creswell, ]., ill Thorogood v Bryan, (1849) 8 CB 115, 121; Clark v Newsam, (1847) J Ex U1. 417. Brown v Wooton 1605 Yelv 67: 80 ER 47.
400. Subbayya 0 Vem):liii. (935) M\1V'N 1043,42 Mad LW17. 418. Duck v Mayeu, (1892) 2 QB 511, 513: 62 LJQB 92; Thurman v Wild, (1840) 11 A & F 453: 3 P&D
410. Harihar Persh,ld 1/ Bholi Pershad, (1907) (, CLl 383. 489.
411. Arneil v Paterson, (1931) AC 560. 419. Clerk & Lindsell on Torts, 15th Edn, p 142 (2.54).
264 Law of Torts Chapter IX
Chapter IX Remedies 265
. agamst
no b ar to an actlOn . oth ers. 420 B ' an agreement mere1y prevents t h e
ecause such final settlement of the entire claim arising out of the tort in which case any subsequent
cause of action from being enforced against the particular wrong-doer with whom it is suit against other tort-feasors will be barred. 428
entered into. The acceptance of a sum of money from one of the joint tort-feasors in full
discharge of his own personal liability does not operate as a release as far as the other (iv) If, through no fault of his own, a person gets mixed up in the tortious acts of others so
421 as to facilitate their wrongdoing, he may incur no personal liability but comes under a
joint tort-feasors are concerned. Where the plaintiff sued several persons for damages
for letting loose their cattle and grazing his crop but compromised with some of the duty to assist the person who has been wronged by giving him full information and
429
joint tort-feasors according to their liability and not in full satisfaction of the entire cause disclosing the identity of the wrong-doers. Thus, when the Commissioners of Customs
of action, the compromise did not exonerate the other tort-feasors from liability.422 and Excise were, in the exercise of their official duties, handling goods infringed the
plaintiffi' patent and which were being illicitly imported, they were required to make full
According to the High Court of Australia the common law rule that there was only disclosure of the documents in their possession to enable the plaintiffi to identifY the
one indivisible cause of action against joint tort-feasors stood abolished in Australia by 430
importers. Similarly, a journalist, who receives information damaging to the interests of
the Law Reform (Miscellaneous Provisions) Act, 1955 (which is exactly the same as the the plaintiff for publication from a person who has tortiously obtained them, can be directed
corresponding English Act of 1935) and that there remained no legal basis for the rule to disclose the source in the interests of justice so that the plaintiff may sue the wrong-doer
423
that release of one joint tort-feasor releases the others. and take preventive action to protect himself in future. 431
The Supreme Court of India424 has not accepted the common law as developed after
Brown v Wooton 425 and has held that in order to release all joint tort-feasors the 9.5. between Wrong-Doers
plaintiff must have received full satisfaction or which the law must consider as such from
~t common law no action for contribution was maintainable by one wrong-doer
a tort-feasor before the other joint tort-feasors can rely on accord and satisfaction and
agams.t another, although the o.ne. who sought contribu.tion might have been com~elled
that what is full satisfaction will depend on the facts of each case. In this case426 a suit
to satisfY the full damages. ThIS IS known as the rule III Merryweather v Nixan 43 The
was filed against several defendants as joint tort-feasors for defamation. One of the
reason alleged for this rule was that any such claim to contribution must be based on an
defendants apologised to the plaintiff who accepted the apology. A compromise petition
implied contract between the tort-feasors, and that such a contract was illegal as being
was filed for disposing of the suit against that defendant on that basis and a decree was made with a view to commit an illegal act.
passed in terms of the compromise. The remaining defendants then raised the plea that
the release of the defendant who had apologised extinguished the cause of action against The rule in Merryweather v Nixan survived with several exceptions until it was
all as they were joint tort-feasors. The Supreme Court negatived this holding abolished by the Law Reform (Married Women and Tortfeasors) Act, 1935 now
that the decree fonowing the apology of one of the defendants could not be said to be replaced by the Civil Liability (Contribution) Act, 1978. A tort-feasor may now recover
full satisfaction of the claim for the tort committed by the remaining defendants. 427 contribution from any other tort-feasor who is, or if sued, would have been, liable
Supreme Court has in effect put joint tort-feasors in the same category as several or in respect ofthe same damage, as a joint or No person shaH
concurrent tort-feasors causing the same or indivisible damage. In case of several or be entitled to recover contribution from any person entitled to be indemnified him in
concutrent tort-feasors, as the causes of action are different the common law rule respect of the liability in respect of which the contribution is 433 The 'the
applying to joint that the release of one operates as a discharge of all has no same damage' not mean 'substantially or similar damage'. The words 'the
application. Therefore, acceptance of a sum less than the full amount of damages from same damage' have not to be given an expansive interpretation. It had a constant
one tort-feasor will not preclude a suit for the balance against the remaining tort-feasors. of the law of contribution that B's claim to share with liability to A
But the position will be different if the sum accepted from one tort-feasor is in full and rested upon the that they, equally with B or not, were subject to a common
liability to A. The words 'in respect of the same damage' the need for one
loss to be apportioned among those liable. 434
420. Duck v Mayeu, supra; Rice v Reed, (1900) 1 QB 54 : 81 LT 410; Hutton v Eyre, (1815) 6 Taunt 289.
See, to the same effect, Ram Kumar Singh v Ali Hussain, (1909) ILR 31 All 173; Kamala Prasad Sukul v
Kishori Mohan Pramanik, (1927) ILR 55 Cal 666; Pollachi Town Bank Ltd. v (1933)
39 LW 114. 428. jamesan v Central Electricity Generating Board, (1999) 1 All ER 193; (2000) 1 AC 455: (1999) 2 WLR
421. Cocke v fennoI', (1615) Hob 66 See, to the same effect, Kamala Prosad Sukul v Kishori Mohan Pramanik, 141 (HL).
sup.; Basharat Beg v Hiralal, (1932) ALJR 497; Devendrakumar Patni v Nirmalabai, (1945) NL] 158. 429. Norwich Pharmacal Co v Customs and Excise Comrs., (1973) 2 All ER 943 (HL), p 948; see also,
422. Har Krishna Lal v Qurban Ali, (1941) ILR 17 Luck 284. Consodilated Information Service Ltd v The Rugby Football Union [2012] UKSC 55.
423. Thompson v Av.stralian Television Pty Ltd, (1997) 71 ALJR 131 (Australia). 430. Norwich Pharmacal Co v Customs and Excise Comrs., (1973) 2 AIl ER 943 (HL)
424. Khushro S. Gandhi v NA. Guzdar, AIR] 970 SC 1468, p. 1474: (1969) 1 SCC 358: (1969) 2 SCR 959. 431. X Ltd. v Morgan Grampian (Publishers) Ltd, (1990) 2 All ER 1 (HL), p. 6 : (1991) lAC 1 : (1990) 2
For somewhat similar Australian case see Baxter v 0 Bacelo Pty Ltd.. (2001) 76 AIoJR 1 WLR 1000.
425. Brown v Wooton 1605 Ydv 67: 80 ER 47. 432. Merryweather v Nixan (1799) 8 TR 186 Sreeputty Roy v Loharam Roy, (1867) 7 WR 384, FB; Parbhu
426. Khushro S Gandhi v NA. Guzdar, supra. Dayal v Dwarka Prasad, (1931) ILR 54 All 37l.
427. Khushro S. Gandhi v NA. Guzdar, AIR 1970 SC 1468, p. 1475. 433. 25 & 26 Geo V. c. 30, section 6 (1) (e). See now section 1 of the Civil Liability (Contribution) Act, 1978.
434. Royal Brompton Hospital NHS Trust v Hammond, (2002) 2 All ER 801 (HL) .
 Chapter IX Remedies 267
266 Law of Torts Chapter IX

The amount of the contribution recoverable from any person shall be just and the court thinks just and equitable having regard to the extent of the moral responsibility
441
equitable having regard to the extent of his respo~sib!lity for :he damage. co~rt ~an
of the parties concerned for the damage caused. The correct view, it is submitted, is
exempt any person from liability to make contribution or direct that the contnbut1On that while the right of contribution is based on the principle of justice, that a burden
. d . 435 which the law imposes on rwo men should not be borne wholly by one of them, the rule
from any person shaH amount to a comp1ete m emmty.
in Merryweather v Nixan,442 is not in conformity with "justice, equity and good
The plaintiff fell down a hole which had been left uncovered by the negligen~e of a conscience," which after all is the guiding principle to be followed by the courts in India.
contractor employed by the defendant to carry out certain works on t~e premises ~n But it has been held that in cases, where the doer of the act knew or is presumed to have
which the plaintiff had come. It was held that the contractor who was aaded as a thlfd known that the act he committed was unlawful as constituting either a civil wrong or a
436
party to the suit was liable to contribute one-half of the damages. criminal offence, there is neither equity nor reason nor justice that he should be entitled
The principle of 111erryweather v Nixan has been followe d m . severa1 cases m
. In d'la, 437 to claim contribution from the other tort-feasors. 443
438
though its applicability is doubted in various cases. It is held to apply in cases where
the parties were wrong-doers in the sense that they knew or ought to have known that 9.6. Remedies under the Constitution
they were doing an illegal or wrongful act. The Nagpur and the Calcutt~ ~igh Cour:s
439
Articles 32 and 226 of the Constitution respectively confer jurisdiction on the
have definitely held that it does not apply in India. \\7here, the~efore, a Jomt decree IS
Supreme Court and the High Courts for the enforcement of fundamental rights. The
passed against several persons in a suit in tort and one of them satisfies the decree, he can
44o High Courts have in addition jurisdiction to enforce other legal rights. It has been held
obtain contribution from his co-judgment-debtors. A Full Bench of the Allahabad that the power conferred by these provisions is not merely injunctive i.e. preventive but
High Court has also held that the doctrine does not apply in India .. A tort-feasor may also remedial and includes a power to award compensation, interim or final, in
recover contribution from any other rort-feasor who 15 or would, if sued, ha~e been 444
appropriate cases. Ordinarily, these provisions are not to be used as a substitute for a
liable in respect of the same damage, whether as ~ joint tort-fea.sor or otherwls~. The
suit for compensation but their recourse can be taken in exceptional cases. 445 Such cases
apportionment of liability between the tort-feasors IS to be made 111 such proport1Ons as
are where the infringement of the fundamental right is gross and patent that is,
incontrovertible and ex focie glaring; and either such infringement is on large scale
435. 25 & 26 Geo V. c. 30, section 6 (2), See now section 1 of the Civil Liability (Contribution) Act, 1978. affecting the fundamental rights of a large number of persons; or it should appear unjust
436. Burnham v Boyer and Brown, (1936) 2 Ail ER 1165. . or unduly harsh or oppressive on account of their poverty or disability or socially or
437. Harnath v Haree Singh. (1872) 4 NWP 116; Marda v Kadugochen. (1883) ILR 7 Mad 89; Gobmd economically disadvantageous position to require the person or persons affected by such
Chunder Nundy v Srigobind Chowdhry, (1896) ILR 24 Cal 330; Ramratan Kapalt v Aswtm ~umar Dutt,
(1910) ILR 37 Ca1559, 569. See, to the same effect, Golam Hossem v Imam B~x, (1866) I R No. 32 of
infringement to initiate or pursue action in Civil Courts. 446
1866, in which contribution for damages paid for libel was sought for. There IS a nght of contribution Infringement of a fundamental right or any other right conferred by the Constitution
between joint defendants in respect to ,he costs awarded against them and paid by one of them 111 such
cases: Mahabir Prcuad v Darbhangi Thakur, (1919) 4 PL] 486; Bhagwan Das v l?i1jpal Singh, (1920) 24 is a wrong under public law which is sue generis i.e. a class in itself. 447 Damages can be
OC 148; Karya Singh v Shiva Ratan Singh, (1925) 29 OC 7 .. ~ee Ra:nPrcuad v Arja Nand, (1889) ] 0 claimed for right to life and personal liberty (Article 21) under Articles 32 or 226 of the
AWN 161, which decides that whatever the rights and habllmes of )0111t tort-feasors :nter se might be Constitution in exceptional cases of the nature indicated above.
before a decree was passed, there was a right of contribution aftetwards, the m~tter hav1l1g passed m rem
judicatum. In the case of decree for mesne profits, a person who had to satisfy the entire decree can It may further be mentioned that the Supreme Court has enlarged the doctrine of
recover his share from his co-defendants: SheD Ratan Smgh v Karan Smgh, (1924) ILR 46 All 860. See locus standi by laying down that where legal injury is caused or legal wrong is done to a
Parbhu Dayal v Dwarktl Prasad, (1931) ILR 54 All 371. Where as a result of wilful wro~gdoing on the person or class of persons who, by reason of poverty or disability or socially or
part of two persons, they become jointly and severally liable to pay a penalty to the ::>tate, a~d such
penalty is recovered only from one person, he cannor maintain a suit aga1l1st the orher for contrlbutlon:
Vedachala v Rangaraju, AIR 1960 Mad 457,73 MLW 315, (1960) 1 MLJ 445, ILR (1960) Mad 455. 441. Dharni Dhar v Chandra Shekhar, ILR (1952) I All 759, FB.
438. Siva Panda v Jujusti Panda, (1901) ILR 25 Mad 599; Nihal Singh v The Collector of Bulandshahr,
442. Merryweather 1) Nixan, (1799) 8 TR 186.
(1916) ILR 38 All 237; Sheo Ratan Singh v Karan Singh, (1924) ILR 46 All 860; Bhagwan Das v RaJpal
443. Dedha & Co v Paulson Medical Stores, AIR 1988 Kerala 233, p. 235. See also text and footnote 430,
Singh, (1920) 24 OC 148; Kilrya Singh v Shiva Ratan Singh, (1925) 29 OC 7; RaJagopala lyer . supra,
Arunachala lyer, (1924) MWN 676; Kamala Prasad Sukul v Kishori Mohan Pramamk, (1927) ILR 55
444. MC Mehta v UOl, (1987) I SCC 395, P 408: AIR 1987 SC 965. For a case under Article 226, see Smt.
Cal 666, 675; Bcuantakumar BaSIl v Ramshanker Ray, (1931) ILR 59 Cal 859; Yegnanarayana v
Kalavati v State ofHimachal Pradesh, AIR 1989 SC 5.
Yagannadha Rao, (1931) MWN 667, 34 Mad LW 618. . .. 445. MC Mehta v UOI, (1987) 1 SCC 395 : AIR 1987 SC 965. ,
439. Kishna Ram v Rakmini Sewak Singh, (1887) ILR 9 All 221; Hari Saran Maitra v Jotindra Mohan Lahtrz,
446. MC Mehta v UOI, (1987) 1 SCC 395: AIR 1987 SC 965 ; For example, see Rudul Shah v State of
(1900) 5 CWN 393; Suput Singh v Imrit Tewari, (1880) ILR 5 Cal 720; Shakul Kameed ~ltm Sahtb v
Bihar, AIR 1983 SC 1036 : 1086 : (1983) 4 SCC 141; Bhim Singh v State ofJ&K, (1985) 4 SCC 677 :
Syed Ebrahim Sahib, (1902) ILR 26 Mad 373; Jhibu v Balaji, (1923) 19 NLR 75; ParlJhu Dayal v
AIR 1986 SC 494. For a discussion of these and other cases see chapter III, title 3.8.2, p 50. See also,
Dwarka Prasad, (1931) ILR 54 All 371; . Dedha & Co v Mis Paulson Medical Stores, AIR 1988 Kerala
Delhi fal Board v National Campaif(11 fOr Dif(nity and Rif[hts of Seweraf[e and Allied Workers, (2011) 8
233, p 235. Express promise of indemnity is void in such cases: Yegnanarayana v Yagannadha Rao,
SCC 568; Municipal Corporation of Delhi v Uphaar Tragedy Victims Association (2011) 14 SCC 481
(1931) MWN 667, 34 Mad LW 618. (per Radhakrishnan J.).
440. Khushalrao v Bapurao, ILR (1942) Nag 1; Nani Lal De v Tirt~lal I?e, ILR 1953 1 Cal 249. See also
447. See Chapter (III), title 3.8.2, p 50.
Krishnrao v Deorao, AIR 1963 MP 49, where ILR (1942) Nag liS rehed upon.
268 Law IX

member of
32 or 226
448
to the court.
In

TORTS are infinitely various, not limited or confined, for there is in nature
enable the courts to but, may be an instrument of mischief. 1 All writers on the law of torts unanimously
to constitutional torts. agree that it is difficult to classify torts with scientific accuracy. Some writers sub-divide
one portion of the whole class of wrongful acts on one principle, and portion on
another principle. To frame a scheme of classification which shall be at once
comprehensive, accurate and easily intelligible, is, it seems, a problem not yet solved;
and scarcely two writers have agreed to one and the same or a
2
uniform scheme. The classification adopted in this work is on the lines of

1. Per, Pratt C J in C"hapman v Pickersgill, (1762) 2 Wils 145.

2. In Pollock's Law of Torts, 15th Edn, p 6, torts are classified as follows:-

GROUP A
Persona! WI'ongs
1. Wrongs affecting safety and freedom of the person: Assault; battery; false imprisonment.
2. Wrongs affecting personal relations in the family: Seduction; enticing away of servants.
3. Wrongs affecting reputation: Slander and libel.
4. Wrongs affecting estate generally: Deceit; slander of tide; fraudulent by colourable
imitation, etc; malicious prosecution; conspiracy.

GROUPS
Wrongs to Property
L Trespass:-(a) to land.
(b) to goods.
Conversion and unnamed wrongs ejusdem generis.
Disturbance of easements, etc
2. Interference with right analogous to property, such as private franchises, patents, COlwrlo-llrs.
trademarks.
GROUPC
to Person, Estate and Property
1. Nuisance.
2. Negligence.
3. Breach of absolute duties specially attached to the occupation of fixed property, to the
and custody of dangerous things, and to the exercise of certain public callings.
Assault

1. Person:
and may relate to
448. MC Mehta v UOI, supra, p 406; Bandhua Mukti Morcha v Union of India, (1984) 3 SCC 161 : AIR Reputation Libel
1984 SC 802 : SP Gupta v UOI (1981) Supp SCC 87 : AIR 1982 SC 149; PUDR v UOI, (1982) 3
Slander.
SCC 235: AIR 1982 SC 1473.
Malicious Prosecution
449. Municipal Corporation ofDelhi v Uphaar Tragedy Victims Association, (2011) 14 SCC 481.
[Footnote No.2 Contd.]

269