law of torts assignment

SHARDA UNIVERSITY
TOPIC
Torts against human being and
property
SUBMITTED TO MISS. ZAINAB FATIMA
Submitted by Parikshit gaur
Bba llb 2014012651(1st
year)

Topic
Torts against Human Being &
Property
Assault
• Assault may be defined as an
unlawful attempt to do a bodily hurt
to another, coupled with present
ability and intention to do the act.
The essence of the tort of assault is
"putting a man in present fear of
violence". Physical touching or
impact is not needed in the case of
assault. The thing which is needed is
that there must be reasonable
apprehension of immediate injury
or violence to the plaintiff.6/22/2016

Assault
• Pointing a loaded pistol or gun at a
person is an assault, But what
would be the case if the pistol is
unloaded? The only case on this
question is of Blake v. Barnard,
(1880) 9 C&P 620, where Lord
Abinger held that "if the pistol was
not loaded it would be no assault".
Actually, assault involves
reasonable apprehension of impact
of something on one's body, and
that is exactly what occurs when a
firearm is pointed at one by an
offender.
•
6/22/2016

Assault
• From the above cases it appears
necessary that the plaintiff, in order
to succeed in an action for assault,
must prove that (a) there was some
gesture or preparation, which
constituted a threat or force; (b) the
gesture or preparation was such as
to cause a reasonable apprehension
of force; and (C) there was a present
ostensible ability on the defendant's
part to carry out a threat into
execution immediately.
6/22/2016

Assault
• It, therefore, ought to be an
assault whether it is loaded or
unloaded, unless the person at
whom it is pointed knows it to be
unloaded, or unless his distance
from the weapon was so great
that any reasonable and prudent
person would have believed that
he was out of range.
6/22/2016

Assault
• An Indian case worth mentioning on
this point is of Bavisetti Venkata
Surya Rao v. Nandipati
Muthayya,AIR 38 AP. The plaintiff, a
rich agriculturist, was in arrear of
land revenue amounting to Rs.
11.60. The village Munsif went to
his residence to collect the
land revenue. On demand the
plaintiff pleaded his inability to pay.
He then told the plaintiff that his
ear-rings would be destrained for
default in the payment of land
revenue, and called a goldsmith
to take out plaintiff's ear rings.
6/22/2016

Assault
• On arrival of goldsmith, another
person, who was standing there,
paid off the amount of arrears of
the plaintiff to the village Munsif.
The Court held that it was not the
case of assault since, after arrival
of goldsmith, the defendant said
nothing and did nothing and that
the threat of use of force by the
goldsmith to the plaintiff was too
remote a possibility to have put
the plaintiff in fear of immediate
or instant violence.6/22/2016

Battery
• Assault becomes battery when
there is a least touching either
directly or indirectly. Battery may,
therefore be defined as intentional
application of force against another
without lawful justification. In other
words, it is the actual application of
force against another, done without
lawful justifications, in a rude,
angry, insolent or revengeful
manner. Physical hurt is not
necessary. The least touching of
another in anger is a battery.
•
6/22/2016

Battery
• The case of Hurst v. Pictures Theatre
Ltd.,(1915)1 KB 1 may be mentioned
here. The plaintiff purchased a
ticket for a seat at a cinema show.
While he was sitting in the hall
he was forcibly turned out of his
seat on the direction of the
manager, who was acting under a
mistaken belief that the plaintiff
had not paid for his seat. On a
suit by the plaintiff it was held that
the defendant committed a
battery and was liable to pay
damages.6/22/2016

Battery
• Thus to constitute a battery two
thing are essential i.e.,(a)intent
and (b) use of force.
• intent-For the tort of battery
intention of the defendant must
be there. Thus,intentional
touching of another against his
will is a battery.
• Use of force-The application of
force against another person
without lawful justification is
another necessary ingredient of
battery.6/22/2016

Battery
• It may be through a stick bullet,
firework or other missiles. Even
throwing water on a man or spitting
in a man's face has been held to be
a battery.(R. v. Cottageworth, 6
Mod 172)Probably flashing of light
by torch in another person's eyes is
a battery. But it is doubtful whether
battery includes the flashing of light
by a mirror in another person's
eyes. On principle it would amount
to a battery, if the infliction of light
(or other things like heat, gas or
electricity) is applied in such a
degree as to cause injury or
discomfort to the plaintiff.
6/22/2016

Battery
• On the other hand, if two or more
persons meet in a narrow street,
or in a bus or train and without
any violence or design of harm,
the one touches the other gently,
it will not be a case of battery,
and it has b. Cole v. Turner,
(1705) 6 Mod Rep 149 been
held that touching another in the
course of conversation or in
order to draw his attention to
something is
again no battery.
6/22/2016

Battery
• However, if a person uses violence
to force his way "in a rude and
inordinate manner" or if there is a
struggle of such violence that actual
harm may be caused, then it is a
case of battery. It is very pertinent
to mention here that in a tort of
Battery the force used must be
without lawful justification. If the
force used is with lawful
justification, then it would not
amount to a battery. An Indian case
worth mentioning on this point is
that of Pratap Daji v. B.B. & C.L. Rly.
1875 (1) Bom 52.
6/22/2016

Battery
• In that case the plaintiff entered a
carriage on the defendant's railway
but forgot to purchase a ticket for
his travel. Soon after, at an
intermediate station, he asked for a
ticket but the same was refused. At
another place he was asked to get
out of the carriage. On his refusal,
he was forcibly removed from the
carriage. On an action for his
removal by force from the carriage,
it was held by the court that the use
of force was justified as he, being
without a ticket, was a trespasser.
The defendants were, therefore, not
liable for the tort of battery.
6/22/2016

Does Battery include
Assault?.—
• Many authorities are of opinion
that battery includes assault, but
it is not always true. Fear or
reasonable apprehension of force
or harm on the part of plaintiff is
a necessary ingredient of assault.
So whenever fear or reasonable
apprehension of force or harm on
the part of the plaintiff results in
battery, then assault is included in
the battery.
6/22/2016

Does Battery include
Assault?.—
• But where battery is committed
without fear or reasonable
apprehension of force or harm on
the part of the plaintiff then
battery does not include assault.
For example, a blow from behind
inflicted by an unseen assailant.
In such a case battery does
not include assault.
6/22/2016

Distinction Assault &
between Battery
• The application of unlawful force
to another constitutes the wrong
called battery; an action which
puts another in instant fear of
unlawful force, though no force
be actually applied, is the wrong
called assault. Thus actual contact
in assault is not needed; whereas
in battery it is needed. In battery
physical contact is necessary;
whereas in assault mere fear or
physical violence is enough.
6/22/2016

Emotional Distress
• This branch of law is of recent
origin and provides relief to a
person who is injured, not by
physical impact, but by what he
saw or heard from his own
senses. As our Indian law is based
on common law and there being
no case directly on the point, we
have to discuss English cases to
trace out the origin and
development of the principles
governing the liability for nervous
shock.6/22/2016

Distinction Assault &
between Battery
• The following examples will
illustrate this point. To throw
water at a person is an assault; if
any drops fall upon him it is
battery. Pulling awaya chair, as a
practical joke, from one who is
about to sit on it is probably an
assault until he reaches the floor;
when he comes in contact with
the floor, it is a battery.
•
6/22/2016

Emotional Distress
• Meaning and Principles –
Emotional Distress is a shock to
nerve and brain structures of the
body. Before 1896, the law took
cognizance only of physical injury
resulting from actual impact. In
other words, if there was any
bodily injury through nervous
shock, but without physical
impact, no action would lie.
6/22/2016

False Imprisonment
• Both `false' and `imprisonment' are
somewhat misleading terms. `False'
does not necessarily signify
fallacious, but used in the less
common sense of `wrongful' or
`unlawful'. Imprisonment, on the
other hand, does not necessarily
mean prison or jail. It actually
means `total restraint' or `total
confinement' of a man's liberty
whether it be in the open field, or in
the street or in a house. And in all
these places the party so restrained
is said to be a prisoner.6/22/2016

False Imprisonment
• False imprisonment, therefore,
means wrongful total restraint of
a man's liberty. In other words,
false imprisonment is committed
when one person, without lawful
justification, intentionally
imposes, for a time however
short, total restraint upon the
liberty of another.
6/22/2016

False Imprisonment
• Thus, false imprisonment requires
two essential elements which the
plaintiff must prove.
• (a) There must be a total restraint
on the liberty of the plaintiff; and
• (b) It must be without any lawful
justification.
6/22/2016

Total restraint
• The tort of false imprisonment is
committed only when there is total
restraint on the liberty of a person in
moving into any direction and which is
unlawful. This may be by actual force or
threat of force. For example, where a
person is unlawfully closed in a room for
sometime; or where X goes on the rooftop
and Y maliciously takes away the ladder
with the result that X, having no other
alternative, has to remain there for
sometime; or where a person is prevented
from leaving his house or ship, internment
of a person within an area; detention of a
person in a public street against his will; or
where a person unlawfully tells another
that he is under arrest and the person
follows him to the police station.
6/22/2016

Knowledge of plaintiff
• An important question arises:
whether a plaintiff can sue for
false imprisonment even if he
could not know at the time when
he was imprisoned? It has been
held in the cases of Meering v.
Graham White Aviation Co. Ltd.
(1920) 122 LT 44 that the tort of
false imprisonment can be
committed even if the plaintiff
does not know that he is being
detained.
6/22/2016

Knowledge of plaintiff
• The facts were that the plaintiff was
suspected of having stolen a keg of
varnish from the shop of his
employers, the defendants in this
case. His employers asked the
plaintiff to go with their policemen
to the company's office. On arrival
at the company's office, he was
asked to wait in the waiting room
while the two policemen remained
in the neighbourhood. In an action
for false imprisonment, the
defendants were held liable.6/22/2016

False imprisonment by
the defendant
• It has been seen that whenever a
defendant unlawfully detains a plaintiff,
even if the plaintiff does not know
about his detention, it amounts to
False Imprisonment. But it may be
pointed out that it is not necessary
that the defendant himself unlawfully
detained the plaintiff by actual force or
threat of force. Even if the defendant
caused the unlawful detention of the
plaintiff, he would be liable for false
imprisonment. This may be where
the defendant caused the unlawful
detention through his agent or servant
acting in the course of employment.
6/22/2016

Partial restraint
• It has been seen that in the case of
false imprisonment there must be
total restraint of the liberty of a
person and without lawful
justification. But where the
wrongful restraint on the liberty of a
person is partial, it does not
amount to false imprisonment. A
leading English case on this point
is that of Bird v. Jones.(1845) 7
QB 742.The defendant
wrongfully enclosed part of the
public footway on a bridge, put
seats in it for the use of
spectators to view the boat race in
the river.
6/22/2016

Partial restraint
• The plaintiff insisted on passing
along this part of the footpath, and
climbed over the fence of the
enclosure. The defendant refused to
let him go forward, but told him
that he might go back into the
carriage way and cross to the
other side of the bridge if he
wished. He declined to do so and
remained in the enclosure for
thirty minutes. On being sued, it
was held by the court that the
defendant was not liable as
plaintiff's movement was not
restrained in every direction.6/22/2016

Means of escape
• Another important question
arises where a person imprisoned
had the means of escape, but did
not know about it. Would it
amount to false imprisonment?
There is no case law on the point.
However, it is submitted that his
detention would amount to false
imprisonment if as a reasonable
man he would not have realised it
that he had an available outlet.
6/22/2016

Detention without lawful
justification
• In the case of false imprisonment it
is necessary that the total restraint
or detention should be unlawful or
without any lawful justification.
Thus in Rudal Sah v. State of Bihar,
AIR 1983 SC 1086,the petitioner was
acquitted by the court in 1968 but
was released from the jail after
fourteen years in 1982. The State
pleaded that the detention was for
the medical treatment of the
petitioner for his mental imbalance.
6/22/2016

Detention without lawful
justification
• The plea was rejected by the court and, as
an ancillary relief, in a writ of habeas
corpus by the petitioner, the Supreme
Court granted a sum of Rs. 35,000 as
compensation as an interim measure
without precluding the petitioner from
claiming further ompensation.
• Similarly in Bhim Singh v. State of
J&K,AIR1986SC494 the petitioner, an MLA
of the J&K Assembly was wrongfully
detained by the police in order to prevent
him from attending the Assembly session.
The Supreme Court held it a mischievous
and malicious detention and granted
exemplary damages amounting to Rs.
50,000.
•
6/22/2016

Judicial authority
• In India, the Judicial Officers are
protected from liability for doing
a wrongful thing in the discharge
of their duty and hence a Judicial
Officer cannot be sued for false
imprisonment. Section 1 of the
Judicial Officers' Protection Act,
1850, in so far as it, is material,
provides:
6/22/2016

Judicial authority
• No judge, Magistrate, Collector or
other person acting judicially shall
be liable to be sued in any civil
court for any act done or ordered
within the limits of his
jurisdiction: provided that he at
the time, in good faith, believed
himself to have jurisdiction to do
or order the act complained
of……"
6/22/2016

Arrest by Police
• Similarly no action will lie against a
person or police officer making arrest in
obedience to a warrant issued by a
judicial authority, notwithstanding any
defect of jurisdiction in such judge or
magistrate. But this protection from
liability does not extend to any
irregularity in the execution of the
warrant and there is no defence if the
person other than the person named in
the warrant is arrested, however
innocent the person making the arrest
may be. The person or police officer
making the arrest must be in possession
of the warrant failing which the defence
of lawful authority will not hold good.
6/22/2016

Remedies
• The following remedies are
available in the case of false
imprisonment:
• (i) Selfhelp.—No one who is
unlawfully detained need wait until
he is released before seeking
redress. He can use selfhelp in order
to escape.
• (ii) Habeas Corpus.—A person who
has been wrongfully detained, or
any person on his behalf, may move
an application under Article 32 or
226 of the Constitution to the
Supreme Court or the High Court
respectively for the issue of writ of
Habeas Corpus.
6/22/2016

MALICIOUS PROSECUTION
And Abuse of Legal
Proceedings
• Every person has the freedom to
bring criminals to justice. But this
does not mean that any innocent
person should be brought to justice
unnecessarily. It is in order to check
false accusation of innocent persons
that the tort of Malicious
Prosecution came into use during
the reign of Elizabeth I. In the
beginning the principles were
uncertain and, therefore, a just
accuser was deterred in instituting
criminal proceedings against a
person because of fear of damages
for malicious prosecution.
6/22/2016

• A maliciously and without any
reasonable cause, prosecuted B
for theft. B was acquitted by the
court as an innocent person.
Whether B has got any remedy
against A for lowering down his
fame and the losses suffered in
defending himself? B has a
remedy against A in law of tort for
this type of malicious prosection if
he proves that (a) he was
prosecuted by the defendant,
6/22/2016

• (b) the prosecution ended in his
(plaintiff's) favour, (c) the
defendant prosecuted him
without any reasonable and
probable cause, (d) the defendant
prosecuted him with malicious
intention and (e) he suffered
damage as a result of such
prosecution.
6/22/2016

Essential conditions
• The first condition is that the
plaintiff was prosecuted by the
defendant.
• This essential the plaintiff to
condition requires prove that
• (i) he was prosecuted, and
• (ii), the defendant prosecuted
him.
6/22/2016

Prosecution
• Prosecution means to set the law in
motion against another person. And
it can be set in motion when an
appeal is made before a person
clothed with judicial authority. Thus,
prosecution normally means
criminal proceedings and not civil
proceedings. But for the purpose of
this tort it also includes any other
proceeding which reflects plaintiff's
honour or character e.g., liquidation
or bankruptcy proceedings.
6/22/2016

Distinction between false
imprisonment and malicious
prosecution
• Following are the main points of
distinction between false imprisonment
and malicious prosecution:
• (1) False imprisonment is wrongfully
restraining the personal liberty of the
plaintiff whereas malicious prosecution
is the unlawful use of legal procedure to
bring about legal confinement.
• (2) The personal liberty of plaintiff is
wrongfully restrained by private
individual in false imprisonment
whereas arrest under malicious
prosecution is secured by judicial
sanction.
6/22/2016

Distinction between false
imprisonment and malicious
prosecution
• (3) The defendant under false
imprisonment must affirmatively
prove the existence of reasonable
and probable cause as
justification whereas the plaintiff
has to prove its non-existence in
malicious prosecution.
• (4) Malice is an essential
ingredient for an action of
malicious prosecution but malice
may not be proved for false
imprisonment.6/22/2016

Conspiracy
• Conspiracy can be better
understood by following case-In
Sova Rani Dutta v. Debabrata
Dutta,AIR 1991 Cal 185,the
defendant lodged a false F.I.R.
against the plaintiff and his sister
alleging theft of her ear rings. The
defendant knew that the FIR was
false and that the police would
handcuff the plaintiff. The
defendant was held liable for
malicious prosecution and the
humiliation suffered by the plaintiff
due to his handcuffing.6/22/2016

Conspiracy
• In certain cases it has been held
that fees paid to Advocate in
defending the accused person can
also be allowed as damages
because such consequences are
considered as natural
consequence of the malicious
prosecution.In Lakhanlal v.
Kashinath,AIR 1960 MP 171 a
reckless allegation was made
against the character of a
professional lawyer. The court
awarded vindictive damages.6/22/2016

DEFAMATION
• The right of reputation is
acknowledged as an inherent
personal right of every person. A
man's reputation is his property
and perhaps more valuable than
any other property. Accordingly,
whenever there is an injury to the
reputation of a person, he may
institute civil proceedings for
damages against the wrongdoer.
But mere `insult' is not enough for
civil action. There should be
defamation.6/22/2016

DEFAMATION
• The difference between the two lies
in the fact that mere insult is an
injury to one's dignity of self
respect; whereas defamation is an
injury to the esteem or regard in
which one is held by others. The
essence of defamation is
`publication' which excites others
against the plaintiff to form adverse
opinions or exposes him to hatred
contempt or ridicule, or to injure
him in his trade, business,
profession, calling or office, or to
cause him to be shunned or avoided
in society.
6/22/2016

Definition of Defamation
• According to Black's Law
Dictionary, "defamation is the act
of harming the reputation of
another by making a false
statement to a third person."
• According to Salmond, "the
wrong of defamation consists
in the publication of a
false and
defamatory statement respecting
another person without lawful
justification or excuse."
6/22/2016

• According to Winfield defamation
is the publication of a statement
which reflects on a person's
reputation and tends to lower
him in the estimation of right
thinking members of society
generally or tends to make them
shun or avoid that person."
6/22/2016

• In Neville v. Fine Arts Ins.,(1897)
AC 68 (72).it was held that a
statement is said to be
"defamatory" when it had a
tendency to injure the reputation
of the person to whom it refers.
Such a statement is one which
exposes him to hatred, ridicule, or
contempt or which causes him to
be shunned or avoided, or which
has a tendency to injure him in his
office, profession or calling."
6/22/2016

Distinction between libel &
slander
• The defamation of a person may
be in writing or in some
permanent form, or it may be by
spoken words or gesture. The
former is called `libel' and the
latter is called `slander'. Examples
of libel, as distinguished from
slander, are any writing i.e., print,
mark or sign, or a picture, statue,
wax-work effigy which are
exposed to view.
6/22/2016

slander
• On the other hand, examples of
slander are, oral utterances i.e,
speeches, or gesture i.e., winking,
shaking of the head, or in the
manual language of the deaf &
dumb who holds up an empty
purse indicating that the plaintiff
has robbed the defendant. These
examples show that generally
libel is addressed to the eye,
slander to the ear.
6/22/2016

slander
• Apart from the distinction between
libel and slander, there are two
important differences in their legal
consequences. Firstly, libel is not
only a civil wrong, but also a crime.
Slander is always a civil wrong
except where spoken words may be
punishable as being treasonable,
seditious, blasphemous or the like.2
Secondly, libel is always actionable per se, i.e., without proof of special damage. But
slander is actionable only on proof of special damage.
6/22/2016

Indian Law
• The above distinction between
libel and slander is important in
England and not in India. In India
both libel and slander are criminal
offences under section 499 of the
Indian Penal Code. Thus, criminal
law in India does not make any
such distinction between libel and
slander.
6/22/2016

Essentials of defamation
• (i) The statement must be false
and defamatory.
• (ii) It must be published.
• (iii) It must refer to the plaintiff.
6/22/2016

Husband & Wife
• Communication of defamatory
matter by a husband to his wife,
or vice versa, is not a publication
because they are considered one
person in the eye of law. This rule
is based on the ground that, if
permitted, it "might lead to
disastrous results to social life.
6/22/2016

Husband & Wife
• But communication by a third
party to one spouse of matter
defamatory of the other spouse is
publication on the ground that
although husband and wife are
one person, they are not so for
the purpose of having the honour
and feelings of the husband
assailed and injured by acts done
or communication made to the
wife."
6/22/2016

Defences
• There are three specialised
defences to an action for
defamation:
• 1. Justification
• 2. Fair comment • 3. Privilege
6/22/2016

TRESPASS TO LAND
• Trespass to land means an
unjustifiable interference with the
possession of land. Trespass is
therefore a wrong against
possession rather than
ownership. Possession is
therefore an important factor in
relation to trespass. It is,
therefore, necessary to explain
the term possession.
6/22/2016

Possession
• The "possession" is an outward
symbol of ownership, and it is,
therefore, protected in its own
right. According to Salmond "the
possession of a material object is
the continuing exercise of a claim
to the exclusive use of it." It
involves two elements (a) mental,
and (b) physical.
6/22/2016

Possession
• The `mental' element consists in
the intention of the possessor
with respect to thing, and
`physical' consists in the external
facts in which this intention has
realised, embodied or fulfilled
itself. The mental element is
called a "animus", and the
physical element "corpus".
6/22/2016

Possession
• Thus, "animus" means intention
to have a thing and corpus means
physical possession of that thing.
Mere physical possession of a
thing does not confer possession
in the person who holds it. For
example, if X examines gold coins
at a jeweller's shop, at that time
he has mere custody of it, not
possession.
6/22/2016

Possession
• But if he runs away with the gold
coin, he is in full possession of it.
Here he has got the necessary
animus and possession both, and
can exclude others except the
jeweller. Thus, wrongful
possession is protected by law
against all except the real owner
of the gold coin i.e., the jeweller.
6/22/2016

Possession
• Possession is of two kinds (a)
possession in fact (de facto
possession) and (b) possession in
law (de jure possession). A
servant's possession is `in fact'
while master's possession is `in
law'. The difference is in the
mental state of the possessor.
The servant's intention is to
exclude others on behalf of his
master.
6/22/2016

Trespass
• Any interference with the
possession of land without
justification signifies trespass to
land. Thus an owner in possession
of land can bring an action for
trespass against a person who
interferes with his right of
exclusive possession, whether by
actually dispossessing him of the
land or by intruding upon it or by
doing an act affecting the sole
possession of the owner, in each
case without justification.6/22/2016

TRESPASS TO GOODS
• Trespass to goods means direct and
wrongful interference with the
plaintiff's possession of goods. The
interference with the possession of
goods may be by seizure or removal
or by direct act causing damage to
the goods. Trespass to goods may take
innumerable forms viz., removing a
tyre from a cycle or a car, scratching
the panel of a coach, destroying or
injuring the goods, beating or killing the
animals or infecting them with the
disease or chasing the animals to
make them run away from the
possession of owner or killing a dog by
giving it poisoned meat.It should be
noted that the injury or damage must
be direct and not consequential.
6/22/2016

TRESPASS TO GOODS
• Thus, in Kirk v. Gregory,(1876) 1
Ex D 55 on X's death, his sister-in-
law removed certain jewellery
from the room where his dead
body was lying, and kept it in
another room under a reasonable
but mistaken belief that the same
was necessary for its safety. The
jewellery was stolen from that
room and the sister-in-law was
held liable for trespass to the
jewellery.
6/22/2016

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law of torts assignment