Trespass

Trespass are of 3 types:

Trespass to Land
Trespass to Person
Trespass to Goods
The Nature of Trespass to Land
Trespass means to cross over other’s territory without taking the permission of the
land’s owner on which trespasser has no authority to cross. If a person enters a
land assuming it as his own although it belongs to someone else, he has committed
the wrong of trespass. Any voluntary intrusion upon land without the consent of
the person having possession or right of immediate possession is a trespass to land.
It is an unreasonable interference of the property, land, person or goods. In
trespass, the legal right of the owner is infringed because he is deprived of his
right to enjoy the benefit of the property.
Trespass to land is an act of, without lawful justification, (a) entering upon land in
the possession of the plaintiff, or (b) remaining upon such land, or (c) placing any
material object upon it. The tort is actionable per se, without the need to prove
damage.
The slightest crossing of the boundary is actionable: e.g., to put one's hand through
a window, or to sit upon a fence, if done intentionally. It is actionable even without
proof of damage. (Smith v. Stone), if the entry is involuntary then it does not
amount to trespass. When a person is thrown upon other man’s land by someone
else then it is not a trespass.
If A plants a tree on his own land and its roofs and branches spread on B’s land
then it is trespass. If a person X owns a land, then its sub-soil also belongs to him
and if another person Y makes a tunnel beneath the land owned by X then it is a
trespass.
No action will lie against a defendant whose horse runs away with him on a public
highway, and carries him without any negligence of his upon the adjoining land of
the plaintiff. When a person had authority to enter into other person’s house for
a specific purpose and uses the same for other purpose it is an act of trespass. If
he had authority to enter into another person’s house, but subsequently he is
found to have abused such authority, his entry will amount to a trespass from the
time when his authority is abused. A person who has got permission to enter one
part of a building or enclosure has got a licence to visit that particular part and not
the entire building. If a person who has been allowed to sit in the drawing room
goes to bedroom without any justification, it is called a trespass.
It is not necessary that the abuse of the right of entry has caused any harm to the
occupier of the land or to anyone else. It is enough that it falls outside the purpose
for which the right is conferred. A lessee holding over is no trespasser; for a
trespass may be committed only against the person in the present possession of the
property. This must be both direct and physical, with indirect interference instead
being covered by negligence or nuisance. “Interference” covers any physical entry
to land, as well as the abuse of a right of entry, when a person who has the right to
enter the land does something not covered by the permission. If the person has the
right to enter the land but remains after this right expires, amounts to trespass.
It is a trespass to cause any physical object to cross the boundary of the plaintiff's
land, or even to come into physical contact with the land, even though there may be
no crossing of the boundary ； for example, to turn cattle upon the land, or to
throw stones upon it, or to drive nails into a wall, or to pile rubbish against it. In all
such cases, in order to be actionable as a trespass the injury must be direct. Direct
and consequential injuries determine the line between, trespass and nuisance.
Trespass, being direct is actionable per se. An act which consequentially results in
the entry of such objects: To throw stones upon one's neighbour's premises, being
direct, is the wrong of trespass; to allow stones from a ruinous chimney to fall
upon those premises is the wrong of nuisance.
Trespass continues until it has been abated by the removal of the thing which is
thus trespassing.
It would not make it an actionable wrong to fly a kite, or send a message by a
carrier pigeon, or ascend in a balloon, or fire artillery, even in cases where no
actual or probable damage, danger, or inconvenience could be proved by the
subjacent landowners.
Entick v. Carrington, (1765) 19 St. Tr. 1029 (1066), "every invasion of private
property, be it ever so minute, is a trespass." ………….Trespass to land is
committed by entry on the land of another without lawful authority for which the
trespasser is liable without proof of actual damage. Here it may be argued that he
had authority given by the Ordnance Factory authorities, Khamaria, to enter the
land as an invitee for witnessing the flag hoisting ceremony. But it is, settled law
that where one has authority to use another's land for a particular purpose, any user
going beyond the authorised user is a trespass.
'The Six Carpenters' case" (1610) 1 Smith LC 11th Ed 132 (A), and what was
held therein was that if an officer after a lawful entry abuses his authority, his
action will be considered to be that of trespasser ab initio. In this case the general
rule given is this, "when an entry, authority, or licence, is given to any one by the
law, and he doth abuse it, he shall be “trespasser ab initio” That principle finds
support in several of the English.
Examination question:
Which of the following is a leading case on trespass ab initio?
A. Goldsmith v. Sperring Ltd.
B. Dumbell v. Roberts
C. Bird v. Jones
D. Six carpenters' case
Answer: Option D

Which of the following is a correct definition of trespass to land?

A. Interference with the ownership of land without lawful justification
B. Interference with the possession of land without lawful justification
C. Interference with the occupier of land without lawful justification
D. None of the above
Answer: Option B

The famous case of six carpenters (1610) discussed the concept

A. Trespass ab initio
B. Dispossession
C. Maintenance and champerty
D. Standard of goods
Answer: Option B

Which one of the following statements is correct?

A. The occupier has no duty to protect the goods of the visitor which is kept in his premises
from theft by a third party
B. The occupier has a common duty to care to protect the goods of his visitor which is kept
in his premises with the occupier's permission from theft by a third party
C. The occupier will liable for injury caused by defective premises only if he is in exclusive
occupation of the premises
D. A, the occupier of the premises will be invariably liable to his invitee for the negligence
of an independent contractor
Answer: Option D

The famous 'Six carpenters' case is related to

A. Trespasser ab initio
B. Malicious prosecution
C. False imprisonment
D. Nuisance
Answer: Option A
Trespass to Person:
Appleton v Garrett [1996] 5 PIQR P1
AGGRAVATED DAMAGES
Facts
The claimants were patients of the defendant dentist, who had carried out
unnecessary treatment upon them. The defendant had deliberately withheld
information about the necessity of the treatment in the knowledge that they would
not have consented to the treatment had he made them aware of the facts.
The claimants sought aggravated damages from the defendant on the basis
that, inter alia, they had suffered trespass to the person.
Issue
The issues were firstly whether liability for trespass to the person was made out in
the circumstances, and secondly whether aggravated damages could be awarded
for trespass to the person.
Decision
On the first issue, the court held that the lack of consent to the treatment on teeth
which did not require treatment was sufficient to establish liability for trespass to
the person.
On the second issue, the court held that there were two elements which determined
the availability of aggravated damages: firstly, the presence of ‘exceptional’ or
‘contumelious’ conduct by the defendant; secondly, ‘intangible loss’ or injury to
the personality suffered by the claimant. On the facts of this case, the first element
was made out as the defendant had deliberately caused pain and damage to the
claimants, who had placed him in a position of trust. The second element was also
present as the claimants had suffered a heightened sense of injury upon learning
that their treatments had been unnecessary. In quantifying the damages, the court
followed the principle in W v Meah [1986] 1 All E.R. 935 that aggravated
damages should be moderate; in this case, they were assessed at 15% of the general
damages awarded.
When some interference or harm is caused to the body of the person, it is called
trespass to person. Whether intent is a necessary element of trespass to the person
varies by jurisdiction. Under English decision, Letang v Cooper, intent is required
to sustain a trespass to the person cause of action; intent is to be presumed from the
act itself. Trespass to the person is a tort involving wrongful direct interference
with another person and traditionally included both intentional and negligent acts.
It is an invasion of person’s right to freedom.
It consists of following torts- Assault, Battery and false imprisonment.
Example: Slapping someone or pointing a gun on someone.
Assault
A person commits criminal assault if he purposely, knowingly, or recklessly
inflicts bodily injury upon another; if he negligently inflicts bodily injury upon
another by means of dangerous weapon; or if through physical menace, he places
another in fear of imminent serious bodily injury. A person commits tortious
assault when he engages in any act of such a nature as to excite an apprehension of
battery bodily injury.
If a man is directing a gun and is about to pull trigger behind a person, the fear is
not foreseeable to the person. This can’t be said to be an assault since there is no
apprehension of fear in the mind of that person.
In Tuberville v Savage, the defendant reached for his sword and told the plaintiff
that "if it were not assize-time, I would not take such language from you". In its
American counterpart, Commonwealth v. Eyre, the defendant shouted "if it were
not for your gray hairs, I would tear your heart out". In both cases, the courts held
that despite a threatening gesture, the plaintiffs were not in immediate danger. The
actions must give the plaintiff a reasonable expectation that the defendant is going
to use violence; a fist raised before the plaintiff may suffice; the same fist raised
behind the window of a police cruiser will not.
Assault. —Whoever makes any gesture, or any preparation intending or knowing it
to be likely that such gesture or preparation will cause any person present to
apprehend that he who makes that gesture or preparation is about to use criminal
force to that person, is said to commit an assault.
Mere words do not amount to an assault. But the words which a person uses may
give to his gestures or preparation such a meaning as may make those gestures or
preparations amount to an assault.
Illustrations
(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby
cause Z to believe that A is about to strike
Z. A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to
be likely that he may thereby cause Z to believe that he is about to cause the dog to
attack Z.
A has committed an assault upon Z.
(c) A takes up a stick, saying to Z, “I will give you a beating”. Here, though the
words used by A could in no case amount to an assault, and though the mere
gesture, unaccompanied by any other circumstances, might not amount to an
assault, the gesture explained by the words may amount to an assault.
When a gesture or preparation is made by one person on another person with the
intention to use criminal force it amounts to assault. This is so however trivial the
amount or nature of the force may be, and even though it neither does nor is
intended nor is likely or able to do any manner of harm. Even to touch a person
without his consent or some other lawful reason is actionable. For the interest that
is protected by the law of assault is not merely that of freedom from bodily harm,
but also that of freedom from such forms of insult as may be due to interference
with his person. In respect of his personal dignity, therefore, a man may recover
substantial damages for an assault which has done him no physical harm whatever.
Intentionally to bring any material object into contact with another's person is a
sufficient application of force to constitute an assault: for example, to throw water
upon him, OR to pull a chair from under him whereby he falls to the ground. It is an
assault forcibly to take from him some chattel which he holds.
Examination question:
When the defendant by his act creates an apprehension in the mind of the plaintiff that he is
going to commit battery against the plaintiff:

A. The wrong of assault is completed

B. No wrong is committed
C. The wrong of assault is not completed
D. The wrong of assault may be completed
Answer: Option A

An assault is not merely a tort, but also a criminal offence, and the civil and
criminal remedies are in general concurrent and cumulative. The act of putting
another person in reasonable fear of an immediate by means of an act amounting to
an attempt or threat to commit an assault amounts itself to an actionable assault.
The actual application of force was distinguished as battery; however, the term
assault includes both. Mere words do not constitute an assault, however insulting
or even menacing; the intent to do violence must be expressed in threatening acts,
not merely in threatening speech. Even threatening acts do not constitute an
assault, unless they are of such a nature as to put the plaintiff in fear of immediate
violence. To shake one's fist in a man's face is an assault; to shake it at a man who
by his distance from the scene of action is inaccessible to such violence is none.
There need be no actual intention or power to use violence, for it is enough if the
plaintiff on reasonable grounds believes that he is in danger of it. Thus, it is
actionable to point a gun at a man in a threatening manner, even though to the
knowledge of the defendant, but not to that of the plaintiff, it is unloaded. But if
there is no fear or reasonable fear, there is no assault; as for example, when a gun
is pointed at a man behind his back.
Battery
Battery is "any intentional and unpermitted contact with the plaintiff's person or
anything attached to it and practically identified with it". The elements of battery
involves an act which, directly or indirectly, cause harmful contact with another's
person which makes the actor liable to the other, if:
(a) the act is done with the intention of bringing about a harmful or offensive
contact or an apprehension thereof to the other or a third person, and
(b) contact is not consented to by the other or the other's consent thereto is
procured by fraud or duress, and
(c) the contact is not otherwise privileged.
Battery torts are subjected to a four-point test to determine liability:
Directness. Is the sequence of events connecting initial conduct and the harmful
contact an unbroken series?
Intentional Act. Was the harmful contact the conscious object of the defendant?
Did the defendant intend to cause the resulting harm? If a reasonable person in the
defendant's position would apprehend the substantial certainty of the consequences
of his actions, whether the defendant intended to inflict the injuries is immaterial.
Bodily Contact. Was there active (as opposed to passive) contact between the
bodies of the plaintiff and the defendant?
Consent. Did the plaintiff consent to the harmful contact? The onus is on the
defendant to establish sufficient and effective consent.
Purposely touching or applying force on other person or thing related to that person
however slightly it may be, without his consent with the intention to harm that
person is known as a battery. What is necessary is that the wrongful act must
involve physical contact. Direct force can be like slapping a person whereas
indirect force is like setting a dog behind a person or spitting on a person. Battery
corresponds to ‘use of criminal force’.
This species of wrong is partially coincident with that of assault; but there are
assaults which, cause no bodily harm, and it is possible in two ways to inflict
unlawful bodily harm without committing an assault: viz., when it is inflicted
negligently and not wilfully, and when, although wilful, it is inflicted otherwise
than by the application of physical force: for example, by administering a
deleterious drug.
The term physical harm includes illness due to mere nervous shock: as when the
plaintiff suffers in health through the terror of a narrow escape from sudden death.,
or through agitation caused by a false alarm wilfully given by the defendant.
It need not be doubted that the term physical harm also includes physical pain,
even though unaccompanied by any bodily lesion or illness. In respect of merely
mental suffering on the other hand, such as fear, it seems that no action will lie
even though it has been wilfully caused by the defendant. " Mental pain or anxiety
the law cannot value and does not pretend to redress.”
It was held by an Irish Court in Walker v. Great Northern Railway Company of
Ireland that no action can be brought by a child for physical injuries inflicted on it
before birth, by reason whereof it is born deformed or diseased. In this case the
plaintiff’s mother had, while the plaintiff was venire sa mere, been a passenger on
the railway of the defendants, and was there injured in a collision caused by the
defendants' negligence, and the plaintiff was subsequently and consequently born
deformed. The decision of two of the four judges, however, proceeded on the
ground that the defendants owed no duty of care to a person of whose existence
and presence they were unaware, and not on the more general ground, that an
unborn person has no legal right of personal security.
Hopper v Reeve
Facts
The defendant drove his carriage into a third-party’s carriage. This second carriage
hit the claimant’s carriage, causing it to overturn. This caused the claimant’s wife,
who was inside the claimant’s carriage, to be injured. The claimant sued the
defendant in battery on behalf of his wife. The defendant argued that he had not
committed battery, because he had not made any direct contact with the woman.
Issue(s)
1. How directly must force be applied to constitute a battery?
Decision
The Court held in favour of the claimant. The defendant’s acts were a battery
against the wife.
This Case is Authority For…
The use of force through or via an object is generally sufficiently direct to
constitute a battery.
Other
Though the court did not address the point directly, it is implicit in their judgement
that the short delay between the defendant’s act and force being applied to the
woman did not preclude a finding of directness.
Fagan v Metropolitan Police Commissioner
Facts
A police constable asked the defendant to park his car in order to question him.
The defendant complied, but in the process accidentally drove onto the constable’s
foot. The police constable asked the defendant to move his car off their foot. The
defendant initially refused, saying the constable could ‘wait’. He moved the car a
short time later.
The defendant was convicted of assaulting a police officer (under a now-defunct
statutory provision). He appealed his conviction. The defendant argued that he
lacked the mens rea because he did not intend to touch the constable at the time he
drove over the foot.
Issue(s)
1. Did Fagan have the mens rea of the offence at the same time as he
performed the actus reus?
2. Can a battery be committed using an instrument or weapon controlled by the
defendant?
Decision
The High Court upheld the defendant’s conviction. This was on the basis that the
defendant’s acts were continuing, and at some point during this continuing act he
intended to maintain pressure to the constable’s foot.
This Case is Authority For…
There is no need for the defendant to have the mens rea of an offence from the
outset of the actus reus. So long as the actus reus has yet to be completed, it is
possible to superimpose a later mens rea to complete the offence. Touching
someone is an example of a continuing actus reus.
Battery can be committed using an instrument or weapon controlled by the
defendant, such as a car.
Other
While this case was decided under the criminal law, it has also been cited by the
courts as relevant authority for the tort of battery. This is because battery and
assault are defined similarly in tort as in criminal law.
This case can also be used as authority for the actus reus and mens rea of assault.
Assault was defined per curiam in this case as any intentional or reckless act which
causes the victim to apprehend immediate and unlawful personal violence.
Bridge J dissented in this case, arguing that leaving a car on a man’s foot should
be characterised as an omission, not a continuing act. As such, he argued, it should
be subject to the rule against liability for omissions. Bridge J agreed with the
majority that continuing acts were possible, such as holding a stick against a
person. However, he distinguished what the defendant had done in the present case
because it involved no effort by the defendant to maintain.
State of mind
Defendant’s state of mind is crucial in the case of battery. Defendant intend to act
in the way he did which resulted in contact with the claimant. If the defendant aims
his rifle at the claimant and pulls the trigger shows his intention to shoot the
claimant. But, if the defendant pulls the trigger aiming at a partridge on hunting
trip but hits a tree and rebounds and hurts the claimant, the defendant clearly has
no intention to hurt the claimant is clearly an accident
Examination question:
The state of mind of a person committing tort is relevant in:
A. Trespass
B. Negligence
C. Nuisance
D. No tortuous action
Answer: Option A

Green v Goddard
Facts
A bull broke into the defendant’s land. As the defendant was chasing the bull out,
the claimant entered the land. The defendant attacked him in an attempt to get him
to leave. He did not ask or tell the claimant to leave first. The claimant sued the
defendant in battery. The defendant argued that he was acting in defence of his
property.
Issue(s)
1. Is the defendant required to give a verbal warning before using force in
defence of property?
Decision
The Court held for the claimant. The claimant had yet to use any force, so the
defendant was not entitled to lay hands on him without first giving a verbal
warning.
This Case is Authority For…
Where the defendant is acting in defence of property and the other person has yet
to use any force, they must first verbally warn the person to stop or leave. They
cannot escalate straight to using force.
False Imprisonment
False imprisonment is defined as "unlawful obstruction or deprivation of freedom
from restraint of movement". False imprisonment is a tort of strict liability: no
intention on the behalf of the defendant is needed. Physical force, however, is not a
necessary element, and confinement need not be lengthy; the restraint must be
complete, though the defendant needn't resist.
The plaintiff does not consent to the confinement.
The confinement was not otherwise privileged.
The wrong or false imprisonment consists in the act of arresting or imprisoning any
person without lawful justification.
The wrong of false imprisonment is in most cases that of assault also, but not
necessarily so; locking a man up in a room in which he already is by his own act
amounts to false imprisonment, but is no assault. In any case imprisonment is so
special a form of assault as to require separate classification and consideration.
To constitute the wrong in question there need be no actual imprisonment in the
ordinary sense. It is enough that the plaintiff has been in any manner wrongfully
deprived of his personal liberty. A mere unlawful arrest, for example, amounts in
itself to false imprisonment, and so does any act whereby a man is unlawfully
prevented from leaving the place in which he is: for example, a house or a ship.
Nor is it needful that there should be any actual use of actual force. A threat of
force, whereby the submission of the person threatened is procured, is a sufficient
ground for such an action: for example, showing a man a warrant for his arrest and
thereby obtaining his submission is itself an arrest, if it amounts to a tacit threat to
execute the warrant by force if necessary;
To constitute imprisonment the deprivation of the partial plaintiff's liberty must be
complete: that is to say, there must be on every side of him a boundary drawn,
beyond which he cannot pass. It is no imprisonment to prevent him from going in
some directions, while he is left free to go as far as he pleases in other directions.
Thus, no action for false imprisonment will lie for unlawfully preventing the
plaintiff from going along the highway and compelling him to go back.
Examination question:
Which one of the following statements is correct? For the tort of false imprisonment
A. The plaintiff must be restrained from moving to any direction
B. The plaintiff must be restrained to move in particular direction
C. The fact of imprisonment must be known to the plaintiff
D. The imprisonment must be for a considerable period
Answer: Option A

For the tort of 'false imprisonment', there should be

A. Total restraint on the liberty of a person
B. Partial restraint on the liberty of a person
C. Means of escape
D. All of the above

Answer: Option A

False imprisonment' means

A. A false restraint of a person's liberty without lawful justification
B. A partial restraint of a person's liberty without lawful justification
C. A total restraint of a person's liberty without lawful justification
D. A person is imprisoned for a tort in false charges
Answer: Option C
To continue a lawful imprisonment longer than is justifiable is actionable as false
imprisonment.
Remedies for False Imprisonment
1.Action for damages
The plaintiff is entitled to general damages recompense for the humiliation or
suffering caused by the trespass. Even if there is no significant physical harm,
damages should be proportionate to the injury and irritation caused. Damages will
vary depending on the facts of each case. However, when the plaintiff’s allegation
involves oppressive, arbitrary, and unconstitutional activity by the State or its
agents, they should be exemplary.
In the instance of false detention, compensation may be sought not only for loss of
liberty, but also for shame, mental anguish, and humiliation. The defendant bears
the burden of proving reason in a trespass suit. Thus in case of false imprisonment,
the plaintiff is only required to prove that he was imprisoned by the defendant or
his servants. It is then for the defendant to prove the lawful justification for the
same and it is not for the plaintiff to prove its absence. It is not necessary for the
plaintiff to prove any wrongful intention, malice, negligence, etc. on the
defendant’s part.
Self-help
A person is authorised to use reasonable force in order to have an escape from
detention instead of waiting for a legal action.
Habeas Corpus
It is a faster remedy for obtaining the release of an unlawfully imprisoned
individual (Articles 32/226 of the Constitution). The person detaining is obligated
by this writ to present the detained individual before the court and justify the
confinement. If the court determines that the detention is without any just or
reasonable basis, it will order the detainee’s immediate release. If such a person is
freed before the writ is resolved, the court may provide compensation as
supplemental remedy.
Distinction between False Imprisonment & Malicious prosecution

False Imprisonment Malicious prosecution

1. Malicious prosecution consists in

instituting wrongful criminal, or
bankruptcy, or liquidation proceedings,
1. Total restraint or total
maliciously and without reasonable and
confinement of a man’s liberty is
probable cause. When such prosecution
false imprisonment.
causes actual damage to the party
prosecuted, it is a tort for which he can
bring an action.

2. The defendant must prove that he 2. The plaintiff must allege and prove
had reasonable justification to that was no reasonable or probable
 detain the plaintiff (Herd V. Steel
Co., Robinson V. Balmain ferry cause to prosecute the plaintiff.
Co.)

3. Malice must be proved by the

3. Not necessary to prove malice. plaintiff. Otherwise, he fails (Dr.
Abarth’s case)

4. Mistake of facts would not be a

4. Mistake may be a good defence.
good defence.

5. Not necessary to prove actual

5. Actual Damage must be proved by
Damage because its actionable per
the plaintiff.
se.

Examination question:
One of the remedies for false imprisonment is:
A. Mandamus
B. Habeas Corpus
C. Quo Warranto
D. Certiorari
Answer: Option B

Consider the following statements:

It is necessary for false imprisonment that
1. A man's person must be touched.
2. The person should be placed under restraint.
3. The imprisonment may be made while the person is conscious or not. Which of the
statements given above are correct?
A. 1, 2 and 3
B. 1 and 2
C. 2 and 3
D. 1 and 3
Answer: Option C

Which of the following torts is actionable per se without the proof of damage to the plaintiff?
A. Nuisance
B. Malicious prosecution
C. False imprisonment
D. Negligence
Answer: Option C

Action against wrongful procurement of judicial imprisonment

No action for false imprisonment will lie against a person who has procured the
imprisonment of another by obtaining against him a judgment or other judicial
order of a court of justice, even though that judgment or order is erroneous,
irregular, or without jurisdiction. The proper remedy for wrongfully procuring the
judicial imprisonment of the plaintiff is not an action for false imprisonment, but
one for malicious prosecution or other malicious abuse of legal process. The rule,
therefore, that no action for false imprisonment will lie against a litigant in respect
of judicial imprisonment procured by him is a valuable protection against liability
for error in the course of legal proceedings.
Thus, in Austin v. Dowling it is said by Willes, J.: “The distinction between false
imprisonment and malicious prosecution is well illustrated by the case where,
parties being before a magistrate, one makes a charge against another, whereupon a
magistrate orders the person charged to be taken into custody and detained until the
matter can be investigated. The party making the charge is not liable to an action,
for false imprisonment, because he does not set a ministerial officer in motion, but
a judicial officer. The opinion and judgment of a judicial officer are interposed
between the charge and the imprisonment.” Accordingly, if the plaintiff bas been
wrongly arrested without warrant and taken before a magistrate, who remands him
in custody, he must sue in respect of his imprisonment before the remand in an
action for false imprisonment, but in respect of that which is subsequent to the
remand in. an action for malicious prosecution.
The reason for this distinction is that a man cannot be sued in trespass, or therefore
for false imprisonment, unless he himself, whether personally or by his agent, has
done the act complained of. A court of justice, however, is not the agent of the
litigant, but acts in the exercise of its own independent judicial discretion.
Therefore, the acts of a court of justice cannot be imputed to the litigant at whose
suit they have been done. The litigant can be charged only with having maliciously
and without reasonable cause exercised his right of setting a court of justice in
motion.
This exemption, of the litigant from any liability for false imprisonment extends
even to cases in which the court ordering the imprisonment has acted without
jurisdiction. It is the right of every litigant to bring his case before the court, and it
is for the court to know the limits of its own jurisdiction and to keep within them.
An action for false imprisonment will lie against any person who authorises or
directs the unlawful arrest or detention of the plaintiff by a merely ministerial
officer of the law, as distinguished from a judicial officer or court of justice. He
who sets in motion a merely ministerial officer, such as a constable, has no
protection similar to that which is extended to the litigant in a court of justice. He
makes that ministerial officer his agent, and is responsible for any arrest or
detention so procured or authorised, as if it were his own act. It is necessary,
however, even in such a case to prove actual direction or authorisation, such as is
sufficient to make the ministerial officer the agent of the defendant. Mere infor-
mation given to such an officer, on which he acts at his own discretion, is no
ground of liability.
What amounts to a lawful justification for arrest or other detention is not a matter
which can here be fully considered. The most important case is the justifiable
arrest of suspected criminals, and this pertains to the law of criminal procedure. It
may be stated here, a person may lawfully arrest without warrant anyone whom he
suspects on reasonable and probable grounds of having committed a crime.
In the case of arrest by a constable, it is sufficient that there was reasonable and
probable cause of suspicion, even if no crime has been in fact committed.
Examination question:
X, a mother, along with her daughter, Y was shopping in a departmental store, named. "All the
Necessities". Y slipped 5 lipsticks in the bag of her mother. They were apprehended by the
security staff of the store and after one hour both were handed over to the police. Y was
convicted for theft but X was acquitted. X sued for false imprisonment by the store.
A. X would succeed as she was not found guilty
B. X would not succeed as there was a lawful justification for her detention, as the stolen
goods were found in her bag
C. X would succeed as she did not steal and she was not aware that stolen goods were
placed in her bag
D. Both X and her daughter Y can sue the store as they have no business to detain
Answer: Option B

A theft had been committed in the defendant's house. He informed the police that he suspected
the plaintiff for the same. Therefore, the plaintiff was arrested by the police. A complaint was
filed by the defendant but the plaintiff was subsequently discharged by the magistrate as the final
report showed that there was no evidence connecting the plaintiff with the theft. The plaintiff
filed a suit for damages on the ground of malicious prosecution.
In the above case, which one of the following decisions is correct?
A. The plaintiff is entitled to claim damages from the defendant
B. The plaintiff is entitled to claim damages from the police
C. The plaintiff is entitled to claim damages from both
D. The plaintiff is not entitled to claim damages for malicious prosecution at
all

Answer: Option D
Assertion (A): In an action for malicious prosecution, it must be proved that the defendant had
initiated criminal proceeding maliciously and without reasonable and probable cause.
Reason (R): Action for malicious prosecution is instituted in criminal court
A. Both A and R are true and R is the correct explanation of A
B. Both A and R are true but R is not a correct explanation of A
C. A is true but R is false
D. A is false but R is true
Answer: Option C

Defense against trespass to body

Consent of Plaintiff: When plaintiff consented with the defendant on the specific
act then defendant can’t be said to be trespassing if there is a mutual understanding
between the parties for the act.
Medical care gives rise to many claims of trespass to the person. A physician,
"treating a mentally competent adult under non-emergency circumstances, cannot
properly undertake to perform surgery or administer other therapy without the prior
consent of his patient". Should he do so, he commits a trespass to the person and is
liable to damages. However, if the plaintiff is informed by a doctor of the broad
risks of a medical procedure, there will be no claim under trespass against the
person for resulting harm caused; the plaintiff's agreement constitutes "informed
consent". In those cases where the patient does not possess sufficient mental
capacity to consent, doctors must exercise extreme caution. In F v West Berkshire
Health Authority, the House of Lords instructed British physicians that, to justify
operating upon such an individual, there "(1) must … be a necessity to act when it
is not practicable to communicate with the assisted person ... [and] (2) the action
taken must be such as a reasonable person would in all the circumstances take,
acting in the best interests of the assisted person".
Contributory negligence: When there is a negligence of plaintiff included in the
act, then defendant’s liability can be mitigated to the extent and compromise can
be arrived at or liability can be divided.
Blackmore v Department for Communities and Local Government
The Court of Appeal has upheld a finding of 30% contributory negligence for
smoking in an asbestos lung cancer case. The way it did so has big implications.
The case: Mr Blackmore smoked 20 cigarettes a day for around 40 years. He was
also exposed to ‘significant’ asbestos from stripping pipework. He contracted lung
cancer from which he died in 2010.
The defendant conceded primary causation on the basis that the asbestos exposure
had more than doubled the risk of cancer. The first instance court found that the
smoking was a significantly greater contributor to the risk of cancer than the
asbestos.
The defendant argued that:
Contributory negligence findings should closely reflect the much greater causative
role of smoking, and result in a much higher deduction.
The Heneghan case on lung cancer causation created an anomaly to the
disadvantage of single employers - as multiple employers were only liable to the
extent of their contribution to the risk of cancer.
The Court of Appeal rejected these arguments, answering:
Contributory negligence should reflect both causation and degree of fault. The
defendant’s breaches of statutory duty were contrary to Parliament’s decision to
impose responsibility on employers to prevent exposure to asbestos. Mr
Blackmore’s continued smoking was less blameworthy, and some of it occurred
before the risks were generally known.
This was a false analogy. The fact that each defendant under Heneghan is liable
only to the extent of their contribution to the risk meant that questions of
contributory negligence just did not arise. If this is correct as simply stated, it has a
dramatic effect.
Self-defence: A person, to protect himself from an unruly element or any other
such person or incidents, can trespass on the property to preclude the act from
consummation. But, proportionality and probability should be kept in mind while
using the property of the plaintiff to intrude and so it is to be proved by the
defendant that there was no other option with the defendant other than to intrude in
the property of plaintiff.
Statutory authority: Authorities compelled by the law to carry out search and
seizures and cases where consent is taken to conduct a bodily search would not be
construed as a trespass on the body of a person. Entry in public places and private
property used for a commercial purpose is not trespass considering the societal and
public interest in mind.
Bird v. Jones: The claimant was trying to go through the enclosure, but the
defendant put two police officers to block the claimant’s path and prevent him
from entering further into the field. He was told that he could go back but not
forward. After half an hour the Claimant tried to push past whereupon he
committed an assault on the Defendant and was arrested.
The court said that it is false imprisonment for a person to be forced to stay in a
place just as much as locking them in a room. There need not be any touching
either. However, it cannot be a false imprisonment to avert a person from going
forward but allowing them to return the way they came, even if it is unlawful to
stop them. The person no doubt suffers a wrong but not false imprisonment,
possibly assault or battery if he is endangered or touched as he tries to get past. So
here it was held that there was no wrongful restraint or confinement.
Gouri Prasad v. Chartered Bank, (1925) 52 Cal. 615
The plaintiff, being an employee of the defendant bank, was arrested by a police
officer upon a written complaint of the defendant bank, but was acquitted at the
Sessions trial. The Court held that the issue as to arresting or causing the arrest of
the plaintiff and that the defendant had reasonable and probable cause for so doing,
was immaterial.
The court observed as below:
“I have carefully considered the damage which accrued from those events. I have
taken into account the position of the plaintiff in the bank, and the pain and
suffering which must have been caused to him by being taken from the bank to the
police-station; by being detained there, and then taken to the Magistrate's Court. It
is in respect of those events, and those events only, that the plaintiff is entitled to
recover damages, and I assess the damages at Rs. 1,500. There will be, therefore, a
decree for the plaintiff for Rs. 1,500, with costs on scale No. 2, and interest on
judgment at 6 per cent.
As the defendant caused the arrest of the plaintiff, the latter was held entitled to
recover damages for false imprisonment from the defendant.
Examination question:
The defendant wrongfully enclosed a part of the public footway on Hammersmith Bridge, put
seats in it for the use of spectators of a regatta on the river and charged for admission to the
enclosure. The plaintiff insisted on passing along this part of the foot path and climbed over the
fence of the enclosure without paying the charge. The defendant refused to let him go forward,
but he was told that he might go back into the carriage way and cross the other side of the bridge
if he wished. If the plaintiff declined to do so and remained in the enclosure for half and hour,
then the:
A. Plaintiff was entitled to damages
B. Plaintiff committed civil trespass
C Defendant committed false imprisonment
D. Defendant did not commit false imprisonment
Answer: Option D
X an employer of M Bank was arrested by the police upon a written complaint of M Bank, but
X was acquitted at session trial. X claimed damages and court held that (Guari Pd. v. Chartered
Bank case)
A. Bank had a probable cause hence no false imprisonment
B. Bank had a reasonable cause hence no false imprisonment
C. As bank caused arrest of X hence bank is liable
D. None of these
Answer: Option C

Read v. Coker: D and his men surrounded P, rolling up their sleeves, and
threatened to break P’s neck if he did not leave. P was a rent collector who entered
D’s workshop and refused to go until the rent was paid. It was held that this was an
assault: the condition attached to the threat was not enough to nullify it.
Force —A person is said to use force to another if he causes motion, change of
motion, or cessation of motion to that other, or if he causes to any substance such
motion, or change of motion, or cessation of motion as brings that substance into
contact with any part of that other's body, or with anything which that other is
wearing or carrying, or with anything so situated that such contact affects that
other's sense of feeling:
Provided that the person causing the motion, or change of motion, or cessation of
motion, causes that motion, change of motion, or cessation of motion in one of the
three ways hereinafter described:
First. —By his own bodily power.
Secondly. —By disposing any substance in such a manner that the motion or
change or cessation of motion takes place without any further act on his part, or on
the part of any other person.
Thirdly. —By inducing any animal to move, to change its motion, or to cease to
move.
Criminal force.—Whoever intentionally uses force to any person, without that
person's consent, in order to the committing of any offence, or intending by the use
of such force to cause, or knowing it to be likely that by the use of such force he
will cause injury, fear or annoyance to the person to whom the force is used, is said
to use criminal force to that other.
Illustrations
(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus
intentionally causes the boat to drift down the stream. Here A intentionally causes
motion to Z, and he does this by disposing substances in such a manner that the
motion is produced without any other action on any person's part. A has therefore
intentionally used force to Z; and if he has done so without Z's consent, in order to
the committing of any offence, or intending or knowing it to be likely that this use
of force will cause injury, fear or annoyance to Z, A has used criminal force to Z.
(b) Z is riding in a chariot. A lashes Z's horses, and thereby causes them to quicken
their pace. Here A has caused change of motion to Z by inducing the animals to
change their motion. A has therefore used force to Z; and if A has done this
without Z's consent, intending or knowing it to be likely that he may thereby
injure, frighten or annoy Z, A has used criminal force to Z.
(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the
palanquin. Here A has caused cessation of motion to Z, and he has done this by his
own bodily power. A has therefore used force to Z; and as A has acted thus
intentionally, without Z's consent, in order to the commission of an offence. A has
used criminal force to Z.
(d) A intentionally pushes against Z in the street. Here A has by his own bodily
power moved his own person so as to bring it into contact with Z. He has therefore
intentionally used force to Z; and if he has done so without Z's consent, intending
or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has
used criminal force to Z.
(e) A throws a stone, intending or knowing it to be likely that the stone will be thus
brought into contact with Z, or with Z's clothes, or with something carried by Z, or
that it will strike water and dash up the water against Z's clothes or something
carried by Z. Here, if the throwing of the stone produce the effect of causing any
substance to come into contact with Z, or Z's clothes, A has used force to Z, and if
he did so without Z's consent, intending thereby to injure, frighten or annoy Z, he
has used criminal force to Z.
(f) A intentionally pulls up a Woman's veil. Here A intentionally uses force to her,
and if he does so without her consent intending or knowing it to be likely that he
may thereby injure, frighten or annoy her, he has used criminal force to her.
(g) Z is bathing. A pours into the bath water which he knows to be boiling. Here A
intentionally by his own bodily power causes such motion in the boiling water as
brings that water into contact with Z, or with other water so situated that such
contact must affect Z's sense of feeling; A has therefore intentionally used force to
Z; and if he has done this without Z's consent intending or knowing it to be likely
that he may thereby cause injury, fear or annoyance to Z, A has used criminal
force.
(h) A incites a dog to spring upon Z, without Z's consent. Here, if A intends to
cause injury, fear or annoyance to Z, he uses criminal force to Z.
Trespass to Goods: It is the interference with the goods which are in plaintiff’s
possession, without any lawful justification. Goods can be referred to personal
property. It is the taking wrongfully or forcefully interfering with the goods of
another. It differs from trespass to land in one important aspect that wrongful
intention or negligence is not necessary for trespass to goods.
Trespass to chattels typically applies to tangible property and allows the owner of
such property to seek relief when a third party intentionally interferes or
intermeddles in the owner's possession of his personal property. "Interference" is
often interpreted as the "taking" or "destroying" of goods, but can be as minor as
"touching" or "moving" them in the right circumstances. In Kirk v Gregory, the
defendant moved jewelry from one room to another, where it was stolen. The
deceased owner's executor successfully sued her for trespass to chattel.
If the defendant is wrongfully detaining the goods belonging to the plaintiff
and refuses to deliver the same on lawful demands, the plaintiff can recover
the same by bringing the action.
If a person willfully and without any justification converts the goods of another
who is entitled to immediate use and possession of the good, then the person is
liable for conversion of goods.
Simply the "intermeddling with or use of … the personal property" of another
gives cause of action for trespass Since CompuServe Inc. v. Cyber Promotions,
Inc. various courts have applied the principles of trespass to goods to resolve cases
involving unsolicited bulk e-mail and unauthorized server usage.
In an action for trespass to goods the plaintiff must have the possession of goods
either actual or constructive or a legal right to the immediate possession at the time
of trespass. A trespass to goods is also actionable per se i.e., without any proof of
actual damage.
Mistake of ownership cannot be used a defence. Like, 2 friends are studying
together, after studying B toot the book of A assuming it to his book. In this case
the mistake of ownership cannot be taken. Trespass to goods does not require a
showing of damages. Simply the "intermeddling with or use of … the personal
property" of another gives cause of action for trespass Since CompuServe Inc. v.
Cyber Promotions, Inc. various courts have applied the principles of trespass to
goods to resolve cases involving unsolicited bulk e-mail and unauthorized server
usage.
Examination question:
Trespass to goods is
A. Actionable per se
B. Actionable only when damage is caused
C. Not actionable at all
D. All the above
Answer: Option A

EXTRA-JUDICIAL REMEDIES
Following extra-judicial remedies can be availed by the plaintiff.
1. Expulsion of trespasser
2. Re-entry on land
3. Recapture of Goods
4. Abatement of Nuisance
5. Distress Damage Feasant
1. EXPULSION OF TRESPASSER
A person can resort to legitimate force in order to repel an intruder or trespasser
provided the force used by him does not transgress the reasonable limits of the
occasion i.e. he must not use disproportionate force. In Scott v. Mathew Brown &
Co., the rightful owner of property of is entitled to use force in ejecting a trespasser
so long as he does him no personal injury.
In Edwick v. Hawkes, while ejecting a trespasser, the rightful owner of property
should not resort to violence.
2. RE-ENTRY ON LAND
A man wrongfully disposed of his land may retake its possession, if he can do so in
a peaceful manner and without the use of force.
Hemmings v. Stoke Poges Golf Club, If an owner of landed property finds a
trespasser on his premises, he may enter the premises and turn the trespasser out,
using no more force than is necessary to expel him, without having to pay damages
for the force used.
Section 6 of the Specific Relief Act, 1963 provides that if one in possession of
immovable property is disposed, otherwise than by due course of law, he may,
within six months, sue to recover possession without reference to any title set up
by another, which is left to be determined in a separate action.
3. RECAPTURE OF GOODS
A person entitled to the immediate possession of chattels may recover them from
any person who has then been in actual possession and detain them, provided that
such possession was wrongful in its inception.
4. ABATEMENT OF NUISANCE
Abatement means removal of the nuisance by the party injured. It is justifiable
provided it must be peaceable, without danger to life or limb and after notice to
remove the same, if it is necessary to enter another’s land to abate a nuisance, or
where the nuisance is a dwelling house in actual occupation or a common, unless it
is unsafe to wait.
In Lemmon v. Webbs, the occupier of land may cut off the overhanging branches
of his neighbour’s trees, or sever roots which have spread from these trees into his
own land.
Someshwar v. Chunilal: One cannot cut the branches if the trees stand on the land
of both parties.
In Edwick v. Hawkes, while ejecting a trespasser, the rightful owner of property
should not resort to violence.
Municipal Council, Ratlam vs Shri Vardhich and & Ors on 29 July, 1980
Equivalent citations: 1980 AIR 1622, 1981 SCR (1) 97
Code of Criminal Procedure 1973, s. 133 & M. P.
Municipalities Act 1961, s. 123-Municipality not providing sanitary facilities and
construction of public conveniences for slum dwellers-Whether Courts can compel
municipal body to carry out its duty to the community to provide amenities and
abate nuisance.
The residents (respondents) of a prominent residential locality of the Municipality
(petitioner) in their complaint under s. 133 Criminal Procedure Code to the Sub-
Divisional Magistrate averred that the Municipality had failed despite several
pleas, to meet its basic obligations, like provision of sanitary facilities on the roads,
public conveniences for slum dwellers who were using the road for that purpose,
and prevention of the discharge from the nearby Alcohol Plant of malodorous
fluids into the public street, and that the Municipality was oblivious to the
statutory obligation envisaged in s. 123 M. P. Municipalities Act, 1961.
The Municipal Council contested the petition on the ground that the owners of
houses had gone to that locality on their own choice, fully aware of the insanitary
conditions and therefore they could not complain. It also pleaded financial
difficulties in the construction of drains and provision of amenities.
The Magistrate found the facts proved, and ordered the municipality to provide
the amenities and to abate the nuisance by constructing drain pipes with flow of
water to wash the filth and stop the stench and that failure would entail prosecution
under s. 188 I.P.C.
The order of the Magistrate was found unjustified by the Sessions Court, but
upheld by the High Court. In the Special Leave Petition by the Municipality to this
Court on the question whether a Court can by affirmative action compel a
statutory body to carry out its duty to the community by constructing sanitation
facilities at great cost and on a time-bound basis.
The Court approved a scheme of construction work to be undertaken by the
Municipality for the elimination of the insanitary conditions and directed that the
work be commenced within two months and that the Magistrate inspect the
progress of the work every three months and see that it is implemented.
Examination question:
The case of Ratlam Municipality v. Virdhichand is related to
A. Conspiracy
B. Malicious prosecution
C. Tortuous liability of Municipal Corporation
D. None of the above
Answer: Option C

The defendant Board had the statutory power to repair sea walls but was under no duty to do so.
A high tide broke the sea wall and flooded the plaintiff's land. The Board sent an inexperienced
man with poor equipment and the repair work took almost six months to complete. It was
proved that with reasonable skill it could have been completed in about two weeks. The
defendant is:
A. Liable in negligence as they should have sent an experienced man with proper
equipment to do the work
B. Not liable in negligence as they have done whatever they could have done under the
circumstances
C. Liable in negligence as they had a legal duty to take care towards the plaintiff and
committed its breach
D. Not liable in negligence as they owed no legal duty to take care towards the plaintiff
Answer: Option D

5. RE-ENTRY ON LAND
A man wrongfully disposed of his land may retake its possession, if he can do so in
a peaceful manner and without the use of force.
Hemmings v. Stoke Poges Golf Club, if an owner of landed property finds a
trespasser on his premises, he may enter the premises and turn the trespasser out,
using no more force than is necessary to expel him, without having to pay damages
for the force used.
Section 6 of the Specific Relief Act, 1963 provides that if one in possession of
immovable property is disposed, otherwise than by due course of law, he may,
within six months, sue to recover possession without reference to any title set up
by another, which is left to be determined in a separate action.
6. RECAPTURE OF GOODS
A person entitled to the immediate possession of chattels may recover them from
any person who has then been in actual possession and detain them, provided that
such possession was wrongful in its inception
NERVOUS SHOCK
Nervous shock means when the person suffers physical injury merely by a
nervous shock through what he has seen or heard. It is a psychiatric illness or
injury caused to a person by events, due to the negligence of another person. It is
a shock that arises from a reasonable fear to immediate personal injury to oneself.
As per R.K. Bankia's commentary on The Law of torts, the nervous shock would
act result in providing relief when any person has been affected not through
physical injuries or by its impact, rather by mere nervous shock through anything
which is seen or heard.
In the initial days of interpretation, it was observed that nervous shock was a form
of physical injury caused by the sudden state of mind, and the cases involved
physical damages such as miscarriage of child by mother as a result of shock.
In the case of Dulieu v. White (1901), the plaintiff, who was the wife of a
publican, got a nervous shock due to a severe fear when a van which was drawn by
the horse had crashed into the window where she was working and cleaning the
glasses. Due to this sudden fright, the wife, who was pregnant at that time, gave
birth to a premature baby after the accident. In this case, Justice Kennedy gave a
new rule for limiting the liability in case of nervous shock, and this became famous
in the name of Kennedy Limitation. As per him, the shock should arise from a
reasonable fear of immediate personal injury to one person.
A shift in Interpretation of Nervous Shock:
As per later theory, the damages should be given to those claimants if he or she is
within the prescribed area, which will be helpful to foresee the impact that it
causes. This means that the claimant or the person who suffers the damage should
be geographically closer to the occurrence of risk or the wrongful act.
In the case of Brice v. Brown of 1984, which is more recent, the facts of the case
was that plaintiff, and her daughter met with an accident while on the road, and due
to this accident, both the plaintiff and her daughter suffered the damages and
plaintiff due to her earlier mental illness, was severed due to this accident. In this
case, the court held that the plaintiff should be allowed to claim compensation
under the law of torts, as this kind of accident would ordinarily make a person
suffer from nervous shock. Thus, the compensation was awarded.

Examination question:
Principle: Negligence as a tort is the breach of a legal duty to take care which resulted in
damage, undesired by the defendant, to the plaintiff.
Facts: Plaintiff slipped into a pit filled with rain water. While slipping he caught hold of a
nearby electricity pole to avert the fall. Due to leakage of electricity in the pole, he was
electrocuted. Can the Electricity Board be held liable?
A. No. Electricity Board has no knowledge of leakage of electricity in the pole
B. Yes. It is the duty of Electricity Board to take care that there is no leakage of electricity
in the pole.
C. No. Plaintiff caught hold of the pole on a rainy day.
D. Yes. Electricity Board should take care that there is no pit near the electric pole
Answer: Option B
 The absolute liability
A. Does not recognise any exception
B. Is subject to the same exceptions as the rule of strict liability
C. Is subject to the same exceptions as the rule of vicarious liability
D. Is subject to all the general exceptions
Answer: Option A

Peninsular & Oriental Steam Navigation Co. v/s Secretary of State For India
Decided On, 01 October 1861 At, Privy Council By, BARNES PEACOCK
CHIEF JUSTICE JACKSON & WILLS JUSTICE
Judgment Text
Barnes Peacock, CJ.
1. This is a case stated for the opinion of the Judges of the Supreme Court, by
Arther G. Macpherson, First Judge of the Calcutta Court of Small Causes.
2. The plaintiffs seek to recover damages, Rs. 350, on account of injury caused to a
horse of the plaintiffs through the negligence of certain servants of a government.
The case was stated under Section 55 of Act IX, of 1850, which authorises the
Judges of the Courts of Small Causes to reserve any question of law, upon which
they entertain doubt, for the opinion of the Judges of the Supreme Court. The point
of law intended to be reserved is not so clearly and explicitly raised as it might be.
At first sight the case appeared to raise a mixed question of law and fact; and it
seemed doubtful whether the learned Judge of the Small Cause Court intended to
raise the general question whether, under the circumstances, the plaintiffs were
entitled to maintain an action for the damages sustained, or merely the question
whether the Secretary of State was liable to be sued for them ; for, after stating the
facts, he says : "I was of opinion that the defendants servants were wrong doers, for
carrying the iron in the centre of the road; and, that being so they were liable for
the consequence of what occurred, although they did drop their load in
consequence of being pressed more than was absolutely necessary by the plaintiffs
coachman. But considered that, under the circumstances, the defendant, the
Secretary of State for India was not liable. Having some doubts in the nature, I
gave a judgment for the defendant, subject to the opinion of the Judges of the
Supreme Court."
Capital & Counties v Hampshire County Council
Facts
The claimants alleged that the fire department acted negligently or breached of
statutory duty when attending fires at their property.
In the first case, the fire service turned off a sprinkler system, causing a fire to
spread out of control.
In the second case, the fire had already been extinguished by a third-party.
However, it broke out again after the fire service had declared the area was safe.
In the third case, the fire brigade was unable to stop the fire as they ran out of
water. Fire brigade are under a statutory duty to have enough water to put out fires
(Fire Services Act 1947).
Issue(s)
In what circumstances, do the fire service owe a duty of care in negligence to those
who call for assistance?
Does the Fire Services Act 1947 create a right to sue for damages due to breach of
statutory duty?
Decision
The Court of Appeal held that:
A duty of care was owed to the first claimant. The fire service had created or
exacerbated the danger by turning off the sprinklers.
A duty of care was not owed to the second claimant.
A duty of care was not owed to the third claimant. The Fire Services Act 1947 did
not allow for an action for breach of statutory duty.
This Case is Authority For…
The fire service:
is not under a duty to answer a call for assistance;
is not under a duty to fight fires reasonably if they do attend the scene;
are under a duty not to create new dangers or exacerbate existing ones if they do
answer a call.
A statute is unlikely to give rise to an action for breach of statutory duty if it
merely imposes ‘targets’ on public authorities.
Other
The effect of this case is that the fire service can be liable for making the fire worse
than it would have been. However, they cannot be liable for failing to stop the fire
if they did not make it worse.
LEGAL REMEDIES
Remedies (reliefs available to the aggrieved person) may be classified as under:
1. Legal Remedies
a) Judicial Remedies
Damages, Injunction, Specific Restitution of Property
b.) Extra Judicial Remedies
i) Using ADR methods
ii) Self Help provided by law
Expulsion of trespasser, Re-entry on land, Recapture of goods, Distress of damage
feasant, Abatement of nuisance.
2. Extra Legal Remedies
Self Help not provided by law
Judicial Remedies
1. Damages
2. Injunction
3. Specific Restitution of Property

1. DAMAGES
Damages which law presumes to be the natural consequences of the defendant’s
acts are general damages, whereas damages the law will not infer unless proved at
the trial are special damages.
e.g. medical expenses incurred by plaintiff due to defendant’s negligent driving
will give general damages, whereas if he claims nervous shock, then he has to
prove and will get special damages.
Types of Damages
Damages are of the following five kinds
1) Nominal Damages
2) Contemptuous Damages
3) Real or Substantial Damages
4) Exemplary Damages
5) Prospective Damages
1. Nominal Damages: Damages which are awarded by the Court to the plaintiff not
by way of compensation but by way of recognition of some legal rights of plaintiff
which the defendant has infringed are nominal damages.
Nominal damages are available for torts which are actionable per se.
Ashby v. White, where a rightful voter’s right to vote was wrongfully and
maliciously denied at an election, he was awarded damages nominal in nature,
though the candidate in whose favour he wanted to cast his vote won the elections.
Constantine v. Imperial London Hotels Ltd, the owner of a hotel wrongfully
refused a West Indian Cricketer entry in their hotel. Although he suffered no loss,
the wrongful exclusion was held to be tortuous, was given nominal damages.
2. Contemptuous Damages: Contemptuous damages are an indication of the law
court expressing an opinion of the claim of the plaintiff or its disapproval of is
conduct in the matter. They differ from nominal damages as they may be awarded
for any tortuous act whether actionable per se or not.
3. Real or Substantial Damages: Damages which are assessed and awarded as
compensation for damage actually suffered by the plaintiff, and not simply by way
of mere recognition of a legal right violated are called real or substantial damages.
4. Exemplary Damages: Exemplary damages are awarded where there has been
great injury by reason of aggravating circumstances accompanying the wrong.
Exemplary damages are awarded not by way of compensation for the plaintiff, but
by way of punishment for the defendant.
In Rookes v. Barnard, the Court laid down that exemplary or punitive damages can
be awarded in three cases:
a. Oppressive, arbitrary or unconstitutional action by servants of the Government.
In Bhim Singh v. State of J & K, Bhim Singh (1985), MLA of J & K was arrested
when he was going to attend Assembly session. The Supreme Court considered it
to be appropriate case to award exemplary damages.

Examination question:
In vicarious liability
A. The liability of the Union of India and States is the same as that of East-India Company
B. The Government is liable for the torts committed by its servants in exercise of sovereign
powers
C. Both (A) and (B) are correct
D. Neither (A) nor (B) is correct
Answer: Option A

The rule of strict liability is contained in

A. Donoghue v. Stevenson
 B. Rylands v. Fletcher
C. Lloyd v. Grace, Smith & Co.
D. Ormord v. Orosville Motors Service Ltd.
Answer: Option B

Assertion (A): Government cannot be held liable for the torts committed by its servants.
Reason (R): A master is liable for the torts committed by his servant in the course of his
employment.
A. Both A and R are true and R is the correct explanation of A
B. Both A and R are true but R is not a correct explanation of A
C. A is true but R is false
D. A is false but R is true
Answer: Option D

Principle: When a statute authorizes the doing of an act, which would otherwise be a tort, the
party injured has no remedy except the one, if any, provided by the statute itself. The act done in
pursuance of statutory power must be done without negligence.
Facts: Delhi Metro Rail Corporation (DMRC) is authorized by a statute to build and run metro
rails oh the specified routes in Delhi. One of the pillars of the metro line collapsed causing death
of five persons. It was found that the pillar collapsed because the engineer has not properly
inspected it. Dependants of the deceased claimed damages from Delhi Metro Rail Corporation
(DMRC).
A. Delhi Metro Rail Corporation (DMRC) is not liable because it is authorized by the
statute to build metro rail
B. Delhi Metro Rail Corporation (DMRC) is not liable
C. Delhi Metro Rail Corporation (DMRC) is liable
D. Delhi Metro Rail Corporation (DMRC) is liable as the pillar collapsed due to the
negligence of an employee of Delhi Metro Rail Corporation (DMRC)

Answer: Option D

Ormrod v Crosville Motor Services Ltd: CA 2 Jan 1953

A friend drove the owner’s car from Birkenhead to Monte Carlo, carrying with him
a suitcase belonging to the car owner, so that the two of them could go on holiday
with the car in Switzerland. The basis of the finding of vicarious liability on the
part of the car owner for the friend’s negligent driving was that the friend was
driving the car partly for the owner’s purposes.
Denning LJ said: ‘The owner only escapes liability when he lends it or hires it to a
third person to be used for purposes in which the owner has no interest or concern’.
b. Cases where the defendant’s conduct has been calculated by him to make a
profit for himself which may well exceed the compensation payable to the plaintiff.
In Manson v. Associated News Papers Ltd., the court held that if a person who is
possessed of material which would be defamatory if published, and who does to
really believe it to be true at all, decides to publish it simply because he can make a
profit from publishing it and because he reckons that any damage she might have
to pay would be so small that it would be well worth it, then that is a man, and that
is the only man, against whom an award of exemplary damages can be made.
c. Where exemplary damages are expressly authorized by the statute.

Rookes Vs Barnard
The claimant was a skilled draughtsman and employee of the British Overseas
Airways Corporation (BOAC), resigned his membership of the Association of
Engineering and Shipbuilding Draughtsman (AESD), a registered trade union. It
was agreed between BOAC and AESD (among others) that no strike or lockout
should take place and disputes should be handled by arbitration. The claimant
refused to rejoin AESD and his union member colleagues decided to withdraw
their labour unless the claimant was removed from their office. The claimant was
thus suspended and later dismissed with a week’s pay in lieu of notice.
The claimant brought an action for damages arguing that unlawful means were
used to induce BOAC to terminate his contract of service and that conspiracy was
committed by strike threats to have him dismissed. At trial, the jury found that
each defendant (majority in contract with BOAC) was guilty of conspiracy and that
their strike threats had caused the claimant’s dismissal. It was also held that the
strike threats were unlawful, in breach of the agreement between BOAC and
AESD and thus, actionable as tort due to the harm they caused to the claimant. The
Court of Appeal reversed the decision, holding that despite the existence of a tort
of intimidation, the threat to break a contract was not covered by it. The claimant
appealed, the defendants cross-appealed.
Decision/Outcome
Firstly, the Court held that the tort of intimidation was an established tort and as
such, it included threats of criminal and tortious acts as well as threats of
contractual breaches. Secondly, the tort of intimidation could have been committed
by a single person and it was actionable if done without agreement or combination.
thus, section 1 of the Trade Disputes Act 1906 provided no defence. Thirdly, the
Court held that section 3 of the Act did not protect the inducement of a breach of
contract or interference with trade, business or employment where these were
brought about by intimidation or other unlawful means.
Moreover, the court also invented and defined a new tort, namely, tort of
intimidation.
Examination question
The 'tort of intimidation' was propounded in
A. Winterbottom v. Wright
B. Pasley v Freeman
C. Winsmore v. Greenbank
D. Rookes v. Barnard
Answer: Option D
A street newspaper vendor is liable
A. Even if he is not aware of the defamatory contents of the newspaper he sells
B. Even if he could not have discovered the defamatory contents by reasonable diligence
C. If with a view to attract customers he shouts out the libellous matter contained in the
newspaper
D. None of the above
Answer: Option C

Whether for a wrong both tortious and criminal liability may arise?
A. Only tortious liability may arise
B. Only criminal liability may arise
C. Both the liabilities may arise
D. None of the above
Answer: Option C

INJUNCTIONS
An injunction is an order of the court directing the doing of some act or restraining
the commission or continuance of some act.
Injunctions are of classified in two ways:
1. Prohibitory and Mandatory Injunction
2. Permanent and Temporary Injunction
1. Prohibitory and Mandatory Injunction: An injunction is an order of a court
directing a person to do or to forbear from doing an act.
If the injunction is an order to do an act, it is called mandatory injunction. e.g.,
order to remove a structure illegally built by defendant on the plaintiff’s land, order
to remove the obstruction violating plaintiff’s right to enter upon his own land. If
the order is to forbear from doing an act, it is called prohibitory injunction. e.g.
order not to encroach upon the plaintiff’s property, order not to cause nuisance. It
is also called ‘preventive injunction’, ‘perpetual injunction’ or ‘prohibitory
injunction’.
2. Permanent and Temporary Injunctions: To obtain an injunction, the plaintiff has
to institute a suit against the defendant, and after hearing the same, the court will
grant injunction in deserving cases. This order is permanent.
In case of an order for mandatory injunction, once the act ordered is done, the
order is discharged. But in case of a prohibitory injunction, the act prohibited
cannot be done at any time. Hence, prohibitory injunction is also called permanent
injunction or perpetual injunction.
Section 37, Specific Relief Act, 1963 defines temporary and perpetual injunction
as follows:
“A temporary injunction is such as is to continue until a specified time, or until the
further order of the court. A perpetual injunction is one by which the defendant is
perpetually enjoined from the assertion of a right, or from the commission of an
act, which could be contrary to the right of the plaintiff”
Temporary Injunction: It is also called as ‘interlocutory injunction’. It does not
mean determination in favour of the plaintiff but simply shows the concern of the
Court that there is a substantial question requiring consideration.
E.g. A and B have a dispute regarding title over a plot of land, which is in A’s
possession. B also claims to have the title of the same plot. Case is pending before
the court; A wants to begin with construction on the said plot. B may obtain
temporary injunction by filing an interlocutory application in the suit pending
before the court.
Perpetual Injunction: If the court after going into the matter, finds that the plaintiff
is entitled to the relief, the temporary injunction will be replaced by a perpetual
injunction. A perpetual injunction is a final order and is issued after the full
consideration of the case.
SPECIFIC RESTITUTION OF PROPERTY
When one is wrongfully dispossessed of his movable or immovable property, the
court may order that the specific property should be restored back to the plaintiff.
e.g. action for ejectment, the recovery of chattels by an action for detinue etc.
As per section 6 of the Specific Relief Act, 1963 a person who is wrongfully
dispossessed of immovable property is entitled to recover the immovable property.
As per section 7 of the Specific Relief Act, 1963 a person who is wrongfully
dispossessed of movable property is entitled to recover the movable property