Law of Torts PDF - KLE Society’s B.V.Bellad Law College

KLE SOCIETY’S B.V.BELLAD LAW COLLEGE, BELAGAVI SUBJECT: LAW OF TORTS SEMESTER: I Semester of 3 year LL.B. Dr. Supriya M.Swami Assistant Professor KLE Society’s B.V.Bellad Law College, Belagavi.. LAW OF TORTS.  Referred Books: Ratanlal and Dhirajlal...

KLE SOCIETY’S B.V.BELLAD LAW COLLEGE, BELAGAVI SUBJECT: LAW OF TORTS SEMESTER: I Semester of 3 year LL.B. Dr. Supriya M.Swami Assistant Professor KLE Society’s B.V.Bellad Law College, Belagavi.. LAW OF TORTS.  Referred Books: Ratanlal and Dhirajlal – The Law of Torts Singh Avtar- Introduction to the Law of Torts Saraf D.N.-Law of Consumer Protection in India Gurubax Singh- Law of Consumer Protection Shukla M.N.- The Law of Torts Statutes: The Consumer Protection Act, 2019 The Indian Penal Code, 1860 The Indian Contract Act,1872.  UNIT-I LAW OF TORTS Introduction- Law is bundle of rules which regulates the external behavior of individuals in society. Law of Torts is the branch of law controlling the behavior of people in the society. It is a growing branch of law and its main object is to define individual rights and duties in the light of prevalent standards of reasonable conduct and public convenience. It provides pecuniary remedy for violation against the right of individuals. The entire Law of Torts is founded and structured on the principle that, ‘no one has a right to injure another intentionally or even innocently. Meaning:- The word ‘Tort’ is derived from latin term 'tortum' which means ‘to twist’ or a deviation from straight or right conduct and includes that conduct which is not straight or lawful. DEFINITIONS BY RENOWNED JURISTS ‘Tort’ is defined by various jurists as under: “A tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation”. – Salmond. “A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party”. – Fraser “Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”.–Winfield..  STATUTORY DEFINITION:- ‘Tort’ is defined in Section 2(m) Limitation Act, 1963 as: “Tort is a civil wrong which is not exclusively breach of contract or breach of trust”.  Distinction Between Torts and Other branches of Law -Distinction between 'Tort' and 'Crime' Tort differs both in principle and procedure from a crime and there are basic differences between a tort and a crime which are as follows, First on the basis of nature of wrong, Tort is a private wrong. Private wrong is the infringement of civil right of an individual. It is comparatively less serious and labeled as civil wrong. Whereas crime is a public wrong. Public wrong is a violation or breach of rights and duties which affect the community, as a whole. It is a more serious wrong. Second on the basis of nature of remedy, The remedy in law of tort is damages where as the remedy in crime is punishment Third on the basis of parties to suits, In case of tort the suit is filed by injured or aggrieved party where as In case of crime the complaint is filed in the name of State. Fourth on the basis of withdrawal of suits, In case of tort the suit can be withdrawn at any time and compromise can be done with wrongdoer where as In case of crime the complaint cannot be withdrawn except in certain circumstances. Fifth on the basis of codification, There is no codification in Law of Torts where as The Criminal law is codified. Sixth on the basis of bar of limitation, There is bar of limitation of prosecution in Law of torts where as There is no bar of limitation of prosecution in crime. Seventh on the basis of survival of action, In case of death of tort-feaser his legal representative can be sued except when the tort is defamation, personal injury not causing a death where as In case of death of offender, the suit is put to an end. Eighth on the basis of application of law, There is no separate statute deals with tort. Tort is based on judicial decisions where as the crimes are dealt in Indian Penal Code, 1860. Ninth on the basis of intention, In tort, Intention is important but not in all cases, for example, in cases of negligence where as in crime, Intention is the crux of the offence Despite of these differences, the injunction may be granted in tort as well as in crime. There are various wrongs which fall under law of torts as well as under criminal law, for example, Assault, Defamation, Negligence, Nuisance and Conspiracy. Distinction between Tort and Breach of Contract First on the basis of fixation of duty In tort, the duty is fixed by the law itself where as In contract, the duty is fixed by the party themselves. Second on the basis of attribution of duty, In tort, the duty is towards every person of the community or society where as In contract, the duty is towards specific person or persons. Third on the basis of violation of rights, A tort is a violation of a right in rem (that is, a right vested in some determinate person and available against the world at large) where as A breach of contract is an infringement of a right in personam (that is, of a right available only against some determinate person or party. Fourth on the basis of need of privity, In an action for tort, no Privity is needed or is required to be proved where as In a breach of contract, Privity between the parties must be proved. Fifth on the basis of motive, In tort, motive is often taken into account where as In breach of contract motive is not relevant. Sixth on the basis of damages, In tort, measure of damages is different in different circumstances which may be nominal or exemplary where as In Breach of contract, damages are awarded in the form of compensation for pecuniary loss suffered. Seventh on the basis of suit by third party, A third party can sue for tort even though there was no contract between the person causing injury and the person injured where as A third party to a contract cannot sue for breach of contract except in some exceptional cases. Eighth on the basis of intention, Intention is sometimes taken into consideration where as Intention, in case of breach of contract, is of no relevance. Ninth on the basis of concern, Law of tort is concerned with losses where as Contract law is concerned with promises. Tenth on the basis of period of limitations, Limitation begins to run from the date when damages occurs where as Limitation commences when the breach of obligation takes place. Distinction between Tort and Breach of Trust First on the basis of damages, Damages in a tort are unliquidated where as Damages in breach of trust are liquidated. Second on the basis of origin, Law of torts has its origin as part of common law where as Breach of trust could be redressed in the court of Chancery. Third on the basis of law of property, Law of tort is not regarded as a division of the law of property where as Law of trust can be and is regarded as a division of the law of property. Distinction between Tort and Quasi-Contract When a person gains some advantage or benefit to which some other person was entitled to, or by such advantage another person suffers an undue loss, the law may compel the former to compensate the latter in respect of advantage so gained, even though there is no such contract. The law of quasi-contracts covers such obligations. Distinction between Tort and Quasi-Contract First on the basis of damages, A claim for damages under law of tort is always for an unliquidated sum of money where as A claim for damages is for liquidated sum of money. Second on the basis of attribution of duty, Under law of torts the duty is towards persons generally where as In a quasi-contract, the duty is always towards a particular person. The common point between tort and quasi-contract is that the duty in each case is imposed by the law. However, in certain cases, where a tort has been committed, the injured party has a choice of not bringing an action for damages in tort, but of suing the wrongdoer in quasi- contract to recover the value of the benefit obtained by the wrongdoer. When the injured party elects to sue in quasi-contract instead of tort, he is said to have 'waived the tort'. Essential Elements of Torts Wrongful act or omission The first essential ingredient in constituting a tort is that a person must have committed a wrongful act or omission that is, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. There must have been. Breach of duty which has been fixed by law itself. If a person does not observe that duty like a reasonable and prudent person or breaks it intentionally, he is deemed to have committed a wrongful act. In order to make a person liable for a tort he must have done some legal wrong that is, violates the legal right of another person for example, violation of right to property, right of bodily safety, right of good reputation. A wrongful act may be positive act or an omission which can be committed by a person either negligently or intentionally or even by committing a breach of strict duty for example, driving a vehicle at an excessive speed. The wrongful act or a wrongful omission must be one recognized by law. If there is a mere moral or social wrong, there cannot be a liability for the same. For example, if somebody fails to help a starving man or save a drowning child. But, where legal duty to perform is involved and the same is not performed it would amount to wrongful act. In Municipal Corporation of Delhi v.Subhagwati, where the Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of number of persons, the Corporation would be liable for its omission to take care. Similarly failure to provide safe system would, also amount to omission, held in General Cleaning Corporation Limited v. Christmas. Legal Damage The second important ingredient in constituting a tort is legal damage. In order to prove an action for tort, the plaintiff has to prove that there was a wrongful act, an act or omission which caused breach of a legal duty or the violation of a legal right vested in the plaintiff. So, there must be violation of a legal right of a person and if it is not, there can be no action under law of torts. If there has been violation of a legal right, the same is actionable whether the plaintiff has suffered any loss or not. This is expressed by the maxim, "Injuria sine damnun 'Injuria' refers to infringement of a legal right and the term 'damnum' means substantial harm, loss or damage. The term 'sine' means without. However, if there is no violation of a legal right, no action can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant. This is expressed by the maxim 'Damnum sine injuria The detailed discussion of these two maxims is as follows. Injuria Sine Damno and Damnum Sine Injuria Injuria Sine Damno This maxim means infringement or violation of a legal private right of a person even if there is no actual loss or damage. In such a case the person whose right is infringed has a good cause of action. It is not necessary for him to prove any special damage. The infringement of private right is actionable per se. What is required to show is the violation of a right in which case the law will presume damage. Thus, in cases of assault, battery, false imprisonment, libel etc., the mere wrongful act is actionable without proof of special damage. The Court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. Thus, this maxim provides for, 1) Infringement of a legal right of a person. 2) No actual loss or damage is required to prove. 3) Infringement of a private right is actionable per se. In Ashby v. White, the plaintiff was a qualified voter at a Parliamentary election, but defendant, a returning officer, wrongfully refused to take plaintiffs vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote won the election. Plaintiff succeeded in his action. Lord Holt, C.J., observed as follows, "If the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal". "Every injury imports a damage, though it does not cost a party one penny and it is impossible to prove the contrary, for the uamage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking of them, yet he shall have an action. So, if a man gives another a cuff on his car, though it costs him nothing, not so much as a little diachylon (plaster), yet he shall have his action. So, a man shall have an action against another for riding over his ground, though it does him no damage, for it is an invasion of the property and the other has no right to come there." In Municipal Board of Agra v Asharfi Lal, the facts are, the Plaintiff (Asharfi Lal) was entitled to be entered as an elector upon the electoral roll. His name was wrongfully omitted from the electoral roll and he was deprived of his right to vote. It was held by the court that if any duly qualified citizen or person entitled to be on the electoral roll of an constituency is omitted from such roll so as to be deprived of his right to vote, he has suffered a legal wrong, he has been deprived of a right recognised by law and he has against the person so depriving him, a remedy, that is, an action lies against a person depriving I him of his right. Similarly, in Bhim Singh v. State of J&K, the petitioner, an M.L.A. of Jammu & Kashmir Assembly, was wrongfully detained by the police while he was going to attend the Assembly session. Thus, he was deprived of his fundamental right to personal liberty and constitutional right to attend the Assembly session. The court awarded exemplary damages of Rs. Fifty thousand by way of consequential relief.An action will lie against a banker, having sufficient funds in his hands belonging to the customer, for refusing to honour his cheque, although the customer has not thereby sustained any actual loss or damage, Marzetti v. Williams Bank Damnum sine injuria Damnum sine injuria means an actual and substantial loss without infringement of any legal right. In such a case no action lies. There are many harms of which loss takes no account and mere loss of money's worth does not by itself constitute a legal damage. The essential requirement is the violation of a legal right. There are many forms of harm of which the law takes no account, 1) Loss inflicted on individual traders by competition in trade, 2) Where the damage is done by a man acting under necessity to prevent a greater evil, 3) Damage caused by defamatory statements made on a privileged occasion, 4) Where the harm is too trivial, too indefinite or too difficult of proof, 5) Where the harm done may be of such a nature that a criminal prosecution is more appropriate for example, in case of public nuisance or causing of death, 6) There is no right of action for damages for contempt of court. Gloucester Grammer School Case, Held. The defendant, a schoolmaster, set up a rival school to that of the plaintiff. Because of the competition, the plaintiff had to reduce their fees. Held, the plaintiff had no remedy for the loss suffered by them. Hanker J. said "Damnum may be absque injuria as if I have a mill and my neighbour builds another mill whereby the profits of my mill is diminished... but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives." Chesmore v.Richards, The plaintiff, a mill owner was using water for over 60 years from a stream which was chiefly supplied by the percolating underground water. The defendants dug a well on their land deep enough to stop the larger volume of water going to plaintiff's stream. Held, that the plaintiff has no right of action since it was a case of damnum sine injuria. Bradford Corporation v. Pickles, In this case, the defendant was annoyed when Bradford Corporation refused to purchase his land in connection with the scheme of water supply for the inhabitants of the town. In the revenge the defendant sank a shaft over his land intentionally and intercepted the underground water which was flowing to the reservoir of the plaintiffs. Held that the plaintiffs have no cause since the defendant was exercising his lawful right although the motive was to coerce the plaintiff to buy his land. The House of Lords approved the ruling in Chesmore v. Richards. Moghul Steamship Company v. McGregor Gow &Co, A number of steamship companies acting in combination agreed to regulate the cargoes and freight charges between China and Europe. A general rebate of 5 per cent was allowed to all suppliers who shipped with the members of the combination. As a result of this action, the plaintiffs had to bring down their rates to that level which was un remunerative to them. 'Held, that there was no cause of action as the defendants had acted with lawful means to increase their trade and profits. No legal injury was caused and the case fell within the maxim damnum sine injuria. Dickson v. Renter's Telegraph Company, 'A' sent a telegram to 'B' for the shipment of certain goods. The telegraph company mistaking the registered address of 'C' for that of 'B', delivered the telegram to 'C'. 'C', acting on the telegram sent the goods to 'A' who refused to accept the goods stating that he had ordered the goods not from 'C' but from 'B'. ‘C’ sued the Telegraph Company for damages for the loss suffered by him. Held, that ‘C' had no cause of action against the company for the company did not owe any duty of care to 'C' and no legal rights to 'C' could, therefore, be said to have been infringed. Rogers v.. Rajendera Dutt, The plaintiff owned a tug which was employed for towing the ships in charge of Government Pilots in Hoogly. The plaintiff demanded exorbitant price for towing the ship. Consequently, the Superintendent of Marine issued an order prohibiting the use of that tug in future whereby the owner was deprived of the profits. Held, that they had no legal right to have their tug employed by the Government. Town Area Committee v. Prabhu Dayal, A legal act, though motivated by malice, will not make the defendant liable. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant. The plaintiff constructed 16 shops on the old foundations of a building, without giving a notice of intention to erect a building under section 178 of the Uttar. Pradesh Municipalities Act and without obtaining necessary sanction required under section 108 of that Act. The defendants (Town Area Committee) demolished this construction. In an action against the defendant to claim compensation for the demolition the plaintiff alleged that the action of the defendants was illegal as it was malifide, the municipal commissioner being an enemy of his. It was held that the defendants were not liable as no "injuria” (violation of a legal right) could be proved because if a person constructs a building illegally, the demolition of such building by the municipal authorities would not amount to causing "injuria" to the owner of the property. In Action v. Blundell, the defendants by digging a coal pit intercepted the water which affected the plaintiff's well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed, "The person who owns the surface may dug therein and apply all that is there found to his own purposes, at his free will and pleasure, and that in the exercise of such rights he intercepts or drains off the water collected from underground springs in the neighbor’s well, this inconvenience to his neighbour falls within description damnum sine injuria which cannot become the ground of action." Distinction between Injuria sine damnum and Damnum sine injuria First on the basis of meaning, Injuria sine damunm means violation of a legal right without actual loss or damages where as Damnum sine injuria means actual or substantial Damages without infringement of a legal right. Second on the basis of action, Injuria sine damunm is always actionable where as Damnum sine injuria is never actionable. Third on the basis of nature of wrong, Injuria sine damunm contemplates legal wrongs where there is a remedy where as Damnum sine injuria contemplates only moral wrongs without any remedy. Legal Remedy Ubi jus ibi remedium (Where there is a right there is a remedy) Right without a remedy is of no use. Right is a person’s capacity to compel another person to do or to abstain from doing an act, and capacity to compel means legal capacity to compel. Unless there is a legal remedy, there cannot be legal compulsion. Therefore, a right without a remedy would be redundant. Therefore, right and remedy are correlated. If there is no right there will be no remedy. In this regard there are two types of rights. 1. Absolute rights: An absolute right is a right the violation of which amounts to a wrong and gives rise to cause of action. There is no further requirement of showing any loss or injury. The tort which is based on the violation of an absolute right is actionable per se. 2. Conditional rights: A conditional right is a right the violation of which by itself does not amount to a wrong so as to give rise to cause of action. The plaintiff has to further show that he has suffered loss due to the violation of that right. Loss is a condition precedent for giving rise to cause of action. MENTAL ELEMENTS IN LAW OF TORTS As already seen, Criminal Law seeks to punish the wrong-doer, i.e., an offender. Therefore, one of the cardinal principles of Law of Crimes is well expressed by the Latin legal maxim actus non facit reum nisi mens sit rea, which is vaguely translated as “to constitute a crime act and intent must concur”. In other words, to hold a person liable in Criminal Law, the prosecution has to prove both act usreus (effect of the offender’s act) and mens rea(guilty mind on the part of the offender). Mens rea may take any one of the following three forms: 1. Intention 2. Rashness (Recklessness) 3. Negligence. On the other hand, Civil Law of Obligations, of which Law of Torts is a part, seeks mainly to compensate the victim of a wrong committed by another person. Therefore, the question as to whether the wrong-doer had committed the wrong with a guilty mind is not relevant to Law of Torts. The obligation to make reparation for the damage caused wrongful act arises from the fault, and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent. It is no defence to an action in tort for the wrong-doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse. Every man is presumed to intend and to know the natural and ordinary consequences of his acts (Guille v. Swan, the balloon case. Scott v. Shepherd the lighted squib case.) But in some cases fraud or malice are the essence of that act or omission. Only in such cases knowledge of facts will be relevant to hold the alleged wrong-doer guilty or otherwise. INTENTION Where a person can foresee the natural consequences of his own act and also desires those natural consequences, he is said to have committed that act intentionally. For example, A shoots at B knowing full well that by doing so he may injure or even kill B, and with a desire that B should be injured or killed. Here A has intentionally shot at B. If the defendant must has acted consciously and of his own free will and has intended some injury to the plaintiff’s interest, the he is said to have committed a wrong intentionally. 1. Conduct is not intentional where it results from unconscious or involuntary movement. 2. Nor is it intentional for the purpose of Law of Torts where although the defendant has acted of his own free will, yet he intended no harm to the plaintiff. Two points need to be noted, however, which diminish the importance of this rule. 1. In law a man’s intention are adjudged by objective standards. 2. A man is taken to intend to harm the plaintiff when the consequence which he intends would constitute an injury to a legally protected interest of the plaintiff, regardless of whether he realizes that such a consequence would constitute such injury or not. Thus, if A sees B sitting in front of him in the bus and taps him on the head to attract his attention, then A commits the tort of battery. A consciously and voluntarily moves his hand over B’s head and taps it. A intends both the act, and the consequence—the application of force, to B’s person. Technically, there is a tort committed. This is equally true if A taps C’s head in mistake for B’s. If the defendant must have acted consciously and of his own free will and must have intended some injury to the plaintiff's interest. RASHNESS But where he can foresee those consequences but does not desire them, he is said to have acted rashly or recklessly. For example, A drives a vehicle at an excessive speed on a crowded street knowing full well that he may cause accident and injure somebody, but without desiring that accident should take place and hoping that no one will be injured. Here A is driving the vehicle rashly or recklessly. NEGLIGENCE In case of negligence, there is neither foresight nor desire of the consequences of one’s own natural acts. However, there is failure to take adequate care as demanded by the circumstances in which the act is done. Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or by doing something which a prudent and reasonable man would not do, whereby damage has resulted to a person. The word “negligence” is used in two senses. 1. It is the name of a tort, so that the plaintiff can sue in negligence where an interest of his which the law protects by that tort is injured. 2. Negligence is itself sometimes an ingredient of other torts. It is therefore both a tort and a concept of the law of torts. Here we look at negligence as a concept. Negligence is a type of behaviour. It is distinguishable from other behaviour by the notional mental attitude of the defendant. Negligence exists where the defendant did not intend to injure the plaintiff, and yet he disregarded or did not fulfill a duty imposed upon him by the law. It is akin to carelessness, but is a vastly more complicated concept. As observed by Lord Wright, “In strict legal analysis negligence means more than needless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered to the person to whom the duty was owing.” An action for negligence proceeds upon the idea of an obligation or duty on the part of the defendant to use care, and a breach of it to the plaintiff's injury. It is not necessary that the duty neglected should have arisen out of a contract between the plaintiff and defendants. However the duty may arise, whether by a statute or otherwise, if it exists and is neglected to the injury of the plaintiff, he has a right to sue for damages. There cannot be a liability for negligence unless there is a breach of some duty. Mere omission to exercise active interference on behalf of another to prevent harm, however open to moral censure, is not a civil wrong. There is no absolute or intrinsic negligence; it is always relative to some circumstances, of time, place, or person. The test is not whether this particular defendant actually foresaw the possibility of harm to the plaintiff. It is whether a hypothetical reasonable man would have foreseen it had he been in the defendant’s position. This means that a defendant must sometimes foresee even acts of stupidity or forgetfulness on the part of the plaintiff. MOTIVE Motive is defined as ulterior intention. If we say that A has intentionally shot at and killed B, the next question would be why did A intend to kill B? In other words, what was the reason behind A’s intention to kill B? It may be because Was the legal heir of B and wanted to inherit the property quickly by killing B. Or, it may be that A had some enmity against B and due to that hatred he killed B. Or, may be A wanted to take some revenge against B. Such intention to acquire B’s property through inheritance, enmity or hatred, or intention to take revenge are said to be motive behind the killing of B by A. Motive is almost always irrelevant in the English law of tort. A man’s reasons for doing an act do not make a lawful act unlawful, nor vice versa. MALICE Malice is a term with many meanings. Firstly, it is often used to mean spitefully or with ill-will. Like other motives, malice in this sense is invariably irrelevant in Law of Torts, and therefore, is not essential to the maintenance of an action for tort. Bradford Corporation v. Pickles, Mr. Pickles was annoyed at the Bradford Corporation’s refusal to purchase some land from him at the inflated price he demanded. In order to force their hand, he sank a shaft on his land, which interfered with water percolating from higher land belonging to the Corporation. The Corporation unsuccessfully sought an injunction to restrain him from polluting and diminishing their water. The House of Lords rejected the claim, Lord McNaughton remarking that “It is the act, not the motive for the act that must be regarded. If the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element.” In this first sense, malice is occasionally relevant as a necessary element required to establish the defendant's liability, e.g. to rebut the defence of qualified privilege in libel or slander. Malice has a second meaning. In this legal sense, malice means the intentional commission of an act with any improper motive. This is much wider than the layman's use of the word malice. Malice is usually used in this sense in the few contexts in which it is relevant in tort. For example, in the tort of malicious prosecution, malice is constituted by any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice. Sometimes malice is used in it archaic sense to mean simply an intentional performance of a tortuous act. It is in this sense that pleaders in libel and slander actions traditionally allege that the defendant “falsely and maliciously…” In fact, this means merely that the defendant’s publication of the defamatory matter was either intentional or negligent. Malice in this sense would appear to be a confusing and unhelpful use of the word, and hence, should be avoided. Malice in Fact and Malice in Law It is of two kinds, ‘malice in fact’ (or express malice or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptation, and means ill-will against a person. The second means a wrongful act done intentionally without just cause or excuse where a man has a right to do an act; it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act not otherwise unlawful cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to an injuria or legal wrong.  UNIT-II DEFENCES AGAINST TORTIOUS LIABILITY Under certain conditions an act ceases to be wrongful, although in absence of those conditions the same act would amount to be a wrong. Under such conditions the act is said to be justified or excused. These conditions which excuse or justify an act which would, otherwise, have been a tort may be divided into two categories. First, those conditions which excuse or justify some specific tort but do not excuse or justify torts generally. for example truth and fair comment are defences available for the tort of defamation only. Second, those conditions which are applicable to all torts equally. for example, defence of consent can excuse any tort. Thus, the second category covers those "rules of immunity which limit the rules of liability" in general and are called general exceptions. A ‘defence’ is a ground on which the defendant seeks to avoid or reduce his liability. Defences in cases of torts may be 1) General defences, or 2) Special defences ‘General defences’ are those defences which do not depend upon the nature of tort. They are available in all types of torts. ‘Special defences’ are those defences which depend upon the nature of the tort. They are available for that tort only. These general exceptions, or conditions, or justification of torts are, 1) Consent or Leave and Licence. (Volenti nonfit injuria), 2) Act of God, 3) Inevitable accident, 4) Necessity, 5) Private Defence, 6) Acts causing slight harm, 7) Statutory Authority, 8) Plaintiff the wrongdoer 9) Judicial or Quasi-Judicial acts, 10) Parental and quasi parental acts, Volenti Non fit Injuria(Consent or Leave and Licence) The maxim is based on the principle of common sense. If I invite you to my house, can I sue you for trespass? Answer is no, because I have consented to your entry upon my land. But if a guest who is to be entertained in the drawing room enters into my bedroom without my permission, he can be sued for trespass, because his entry into the bedroom is unauthorised. A postman entering into the house for delivering a letter cannot be sued if he remains within a permissible limit, because in such a case the consent is inferred but if the postman crosses that permissible limit he can be sued. The consent may be either - (1) express, or (2) implied. In Dr. Laxman Balkrishan v Trimbak Bapu, the Supreme Court held that if a doctor does not apply due care during the operation, he will be liable even after the patients' consent for suffering loss during operation. In the case the patient died because proper primary care was not taken while giving anesthesia. Essential Conditions of Doctrine of Volenti Non fit Injuria For the application of the maxim the following conditions should be fulfilled, Consent must be freely given, It is necessary for the application of this maxim that the consent must be freely given. The consent is not free, if it has been obtained by undue influence, coercion, fraud, misrepresentation, mistake or the like elements which adversely affects a free consent. In White v Blackmore, the plaintiffs husband paid for admission of his family for witnessing a car race. During the race a car got entangled in the safety rope and the plaintiff was catapulated some twenty feet and died consequently. It was held that since the deceased did not have full knowledge of the risk he was running from the faulty lay out of the ropes, he did not willingly accept the risk. Consent cannot be given to an illegal act, No consent can legalise an unlawful act or an act which is prohibited by law and when the tort, is of such a character as to amount to a crime, for example, fighting with naked fists, duel with sharp swords are unlawful, and even though the parties may have consented, yet the law will permit an action at the instance of the plaintiff. Knowledge of risk is not the same thing as consent to run the risk, The maxim is volenti nonfit injuria and not the scinti non-fit injuria — knowledge of danger does not necessarily imply a consent to bear that danger. This doctrine was for the first time enunciated in Smith v.Baker. In this case, the plaintiff worked in a cutting on the top of which a crane was carrying heavy stone over his head while he was drilling the rock face in the cutting. Both he and employers knew that there was a risk of stones falling, but no warning was given to him of the moment at which any particular jibbing commenced. A stone from the crane fell upon him and injured. The House of Lords held that defendants were liable. Thus, for the maxim volenti nonfit injuria to apply two things are necessary, 1) Knowledge that risk is there, and 2) Voluntary acceptance of the risk. Exceptions There are three exceptions to the rule of volenti non fit injuria. 1) Employment Relations 2) Rescue cases 3) Drunk drivers 1) Employment Relations: An employee who complained of unsafe practice, but nevertheless continued to work could not truly be said to have voluntarily agreed to waive their legal rights. Smith v. Charles Baker & Co. The plaintiff was employed to hold a drill in position whilst two other workers took it in turns to hit the drill with a hammer. Next to where he was working another set of workers were engaged in taking out stones and putting them into a steam crane which swung over the place where the Claimant was working. The Claimant was injured when a stone fell out of the crane and struck him on the head. The Defendant raised the defence of volenti non fit injuria in that the Claimant knew it was a dangerous practice and had complained that it was dangerous but nevertheless continued. It was held that though the Claimant might have been aware of the danger of the job, but had not consented to the lack of care. He was therefore entitled to recover damages. 2) Rescue Cases: Doctrine of assumption of risk does not apply where plaintiff has under ran exigency caused by defendant’s wrongful misconduct, consciously and deliberately, faced a risk, even of death to rescue another from imminent danger of personal injury or death, the defence of leave and licence is not applicable to the plaintiff, whether the person endangered was one to whom he owed a duty of protection as a member of his family, or was a mere stranger to whom he owed no such duty. For reasons of policy, the courts are reluctant to criticise the behaviour of rescuers. A rescuer would not be considered volens if: a. He was acting to rescue persons or property endangered by the defendant’s negligence; b. He was acting under a compelling legal, social or moral duty; and c. His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence. Haynes v.Harwood, The defendant negligently left his horses unattended in a crowded street, a boy threw a stone at them and they ran helter-skelter. The plaintiff, constable on duty, perceiving the danger to the lives of the persons, ran out and stopped the horses but was seriously injured. It was held: That he was entitled to recover damages, as the defendant was grossly negligent, and That the defence of volenti non fit injuria was held not to apply to the rescue cases, the act of a third party also intervening and the voluntarily undertaking the risk by the plaintiff were not open to the defendant. Baker v. T. E. Hokins and Sons, A well was filled with poisonous fumes of petrol driven pump on account of negligence of the employer, as a result of which two workmen were overcome by fumes. Dr. Baker was called to rescue their lives but he was told not to enter the well in view of the risk involved. Still he preferred to enter the well with a view to save their lives. In the attempt of saving them he himself was overcome by the fumes and he died. The widow of Dr. Baker sued the employer to claim compensation for her husband’s death. The defendants pleaded volenti non fit injuria. It was held that the act of rescuer was the natural consequence of the defendant’s negligent act which he could have foreseen and therefore, the defence of volenti non fit injuria did not apply. The defendants were, thus, held liable. Dr. J. N. Srivastava v. Ram Bihari Lal and Others, The doctor observed after opening the abdomen cavity that patient’s appendix was all right but the operation of gall-bladder was needful. He proceeded with the operation- later on the patient died. The Court held that it was not possible to seek the consent for the Gall- bladder operation. In such circumstances doctor was not responsible. If however, there is no real need to rescue, the Claimant may be held volens. Cutler v. United Dairies, A man who was injured trying to restrain a horse was held to be volens because in that case no human life was in immediate danger and he was not under any compelling duty to act. 3) Drunk Drivers: A person accepting a lift from a drunk driver was not to be treated as volens unless the drunkenness was so extreme and so glaring that accepting a lift would be equivalent of to intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. Dann v. Hamilton: The plaintiff was injured when she was a willing passenger in the car driven by the Mr Hamilton. He had been drinking and the car was involved in a serious crash which killed him. In a claim for damages the Defendant raised the defence of volenti non fit injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted the risk. The defence was rejected and the plaintiff was held to be entitled to damages. Asquith, J. held,“There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim volenti non fit injuria would apply, for in the present case I find as a fact that the driver's degree of intoxication fell short of this degree”.But in another case, defence of volenti non fit injuria was accepted. Morris v. Murray, The Claimant and Defendant had been drinking all day. The Defendant, who had a pilot licence and a light aircraft, suggested that they took the aircraft for a flight. The Claimant agreed and drove them both to the airfield. They started the engine and the Defendant took off but crashed shortly after. The Defendant was killed and the Claimant was seriously injured. An autopsy revealed that the Defendant had consumed the equivalent of Whiskeys. In an action for negligence, the Defendant raised the defence of volenti non fit injuria. The defence was allowed. The actions of the Claimant in accepting a ride in an aircraft from an obviously heavily intoxicated pilot was so glaringly dangerous that he could be taken to have voluntarily accepted the risk of injury and waived the right to compensation. ACT OF GOD (VIS MAJEUR) Act of God may be defined as “circumstances which no human foresight can provide against any of which human prudence is not bound to recognize the possibility, and which when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that result from them”. Ex:- The falling of a tree, a flash of lightening, a tornado, storms, tempests, tides, volcanic eruptions, or a flood. Essential conditions for the availability of this defence are:  Externality: There must be working of natural forces without any intervention from human agency, and   Unpredictability: The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded against.  Irresistibility: The occurrence must be such that it could not have been avoided by any amount of precaution. Whether a particular event amounts to an Act of God is question of fact. Today the scope of this defence is very limited because with the increase in knowledge the foresight also increases and it is expected that the possibility of the event could have been visualized. Whether a particular circumstance or occurrence amounts to an act of God is a question of fact in each case and the criterion for deciding it "is no human foresight and prudence could reasonably recognise the possibility of such an event." There is a tendency on the part of courts to limit the application of the defence of act of God not because of the fact that its application in the cases of absolute liability is diminished but because advancement in the scientific knowledge which limits the unpredictable. In Ramalinga Nadar v. Narayana Reddiar, the Kerala High Court held that the criminal activities of the unruly mob cannot be considered to be an Act of God. In Saraswati Parabhai v. Grid Corporation of Orissa and Others, where an electric pole was uprooted and fell down with live wire which caused death of a person. Orissa High Court rejecting the defence of Act of God held that it was the responsibility of the Grid Corporation authorities to provide protection in such situation of storm and rain. Nicholas v. Marshland, The defendant constructed three artificial lakes which were fed by a natural stream. The lakes were well constructed and adequate in all normal circumstances. An extraordinary rainfall burst the banks of artificial lakes on the defendant’s property and the flood water destroyed a number of bridges owned by the county council. It was held that the defendant was not negligent and the accident was due to an act of God. Inevitable Accident All recent authorities support the view that 'inevitable accident'"negatives liability. An 'inevitable accident' is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. It means an accident physically unavoidable. It does not apply to anything which either party might have avoided. It is an accident such as the defendant could not have avoided by use of the kind and degree of care nece'ssary to the exigency, and the circumstances, in which he was placed. If in the performance of a lawful act, done with all due care, damage ensues through some unavoidable reason, such damage affords no cause of action. "People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities. In A. Krishna Patra v. Orissa State Electricity Board, the Court explained inevitable act and held that an inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all effects on his part to prevent it. Limitations of this defence, In trespass as well as in negligence, inevitable accident has no place. Similarly, under the rule in Ryland v. Fletcher, the defendant is liable even if he has taken reasonable care. In the same way the defence has no role in cases of absolute liability. Distinction between "inevitable accident" and "act of God", Dr. Winfield says that "an act of God" is much older, much simpler and much more easily grasped by primitive people than is the idea of 'inevitable accident.' A falling tree, a flash of lightning, a tornado, or flood presents to the observer a simple and dramatic fact which a layman would regard as an excuse for harm done without further argument.... But the accidents which are not convulsions of nature are a very different matter. To know whether injury from a run away horse was inevitable, one must ask 'would a careful driver have let it run away'..,. 'Inevitable accident' differs from the act of God in not depending on 'natural forces. All cases of 'inevitable accident' may be divided into two classes, 1. those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause, and 2. those which have their origin either in whole or in part in the agency of man, whether in the commission or omission, non-feasance or misfeasance, or in any other causes independent of the agency of natural forces. The term "act of God" is applicable to the former class. The latter types of accidents are termed 'inevitable accident' or "unavoidable accidents." An act of God will be extraordinary occurrence due to natural cause, which is not the result of any human intervention, which could not be avoided by any foresight and care, for example, a fire caused by lighting. But an accidental fire, though it might not have resulted from any act or omission of common carrier, cannot be an act of God. Leading case on this point is Brown v. Kendall. A dog owned by the plaintiff was fighting with a dog owned by the defendant. The plaintiff stood behind the defendant without his knowledge while the defendant was trying to separate the dogs with a stick. The stick struck the plaintiff in his eye and caused injury. It was held that the defendant was not liable as he had exercised reasonable care. Nitroglycerin case, The defendants who were a firm of carriers were carrying a wooden box sent by one of the customers, the contents of which were not reported. When the servants of the defendants found that the box was leaking, they took it their office to inspect. Though they tried to open it with normal care, the nitroglycerin which was highly inflammable substance exploded. All those who were present there were killed and the building in which the office was situated got severely damaged and the office itself was completely destroyed. It was held that the defendants were not liable for the loss to the building. Stanley v. Powell, The plaintiff, who was engaged in carrying cartridges and game for the party, was hit by a shot fired by the defendant while on an organized pheasant shoot when the shot glanced off a tree before hitting the plaintiff. It was held that the defendant was not liable. National Coal Board v. Evans, In this case a colliery company preceded the National Board, had buried an electric cable in the county council’s land. The county council’s contractor damaged the cable while excavating land and the fact that electric cable was buried under the land was not known to the council or contractor. It was held that in these circumstances, neither the council nor the contractor would be liable for damage of cable and the defence of inevitable accident was allowed. NECESSITY Necessitas inducit privilegium quod jura privata (Necessity induces a privilege because of a private right). The act may be necessary 1. to exercise authority given by law 2. to avoid a greater harm 3. in the larger interest of public This is intentional damage to prevent even greater destruction or in defence of the realm. The exception of necessity is based on the maxim “Salus populi est suprema lex” (The welfare of the people is the Supreme Law). E.g. one arresting and restricting the movement of the drunken person who is likely to cause danger to the people at large, can successfully plead necessity as a defence. However, one who puts live electric wires on his land to stop the trespassers cannot successfully avail this defence if he does not give notice, warning of such a dangerous thing. Cope v. Sharpe, A fire broke out on A’s land. A’s servants were busy in extinguishing the fire, the gamekeeper of C (who had shooting rights over A’s land) set fire to some strips of heather extinguished between the fire and some nesting peasants of C, in a shot, while the fire was by A’s servants. A sued the gamekeeper for trespass. The Court held that the gamekeeper was not liable for there was a real and imminent danger to the game which justified the action taken by the defendant. Private Defence Private defence is another ground of immunity well known to the law. No action is maintainable for damage done in the exercise of one's right of private defence of person or property provided that the force employed for the purpose is not out of proportion to the harm apprehended. And what may be lawfully done for oneself in this regard may likewise be done for a wife or husband, a parent or child, a master or servant. But the force employed must not be out of proportion to the apparent urgency of the occasion. Thus it is not justifiable to use a deadly weapon to repel a push or blow with the hand. "Honest and reasonable belief of immediate danger" is the test. Indian Penal Code extends the benefit of this defence even in case of causing death in certain circumstances. In India the right of private defence has been given a statutory recognition in Sections 96 to 106 of the Indian Penal Code. Though provisions of these sections are applicable to the criminal law, the principles contained therein may profitably be imported into the Law of Torts. Self defence as a permissible defence against an action in torts has recently been discussed by Orissa High Court in Devendra Bhai v. Megha Bhai, the principle extends not only to the right of person to protect himself but also to protect others' life, his wife, his parents and his child. He is to use only necessary force or not to use force in excess of what is necessary. ACTS CAUSING SLIGHT HARM De minimis non curat lex (Law does not cure minor loss): Courts generally do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the trial of a right, or where personal character is involved. Acts which separately would not be wrongs may amount to a wrong by a repetition or combination. Holford v. Bailey, A casts and draws a net in water where B has the exclusive right of fishing. Whether any fish are caught or not, A has wronged B, because the act, if repeated, would tend to establish or claim a right to fish in that water. Similarly, an act, which a small incidence, may be a part of a larger transaction. In such a case also the law will take cognizance of the act. Statutory Authority A person cannot complain of a wrong which is authorised by the legislature. When a statute specially authorizes a certain act to be done by a certain person which would otherwise be unlawful and actionable, no action will lie at the suit of any person for the doing of that act. "For such a statutory authority is also statutory indemnity taking away all the legal remedies provided by the law of torts for persons injuriously affected." (Salmond) If I construct a bridge under the authority of a statute and if anybody is denied his right of way and traffic through that way for a specific period, no suit can be brought against me for what I have done is in pursuance of statutory authority. Therefore, if a railway line is constructed, there may be interference with private land when the trains are run, there may also be some incidental harm due to noise, vibration, smoke, emission of spark etc. No action can lie either for interference with the land or for incidental harm, except for payment of such compensation which the Act itself may provided. In Vaughan v. Taff Vale Rail Company, sparks from an engine of the respondent's Rail Company, set fire to the appellant's woods on adjoining land. Held, that since the respondent had taken proper care to prevent the emission of sparks and they were doing nothing more than that the statute had authorised them to do, they were not liable. Similarly, in Hammer Smith Rail Coach v. Brand, the value of plaintiff's property had considerably depreciated due to the noise, vibration and smoke caused by the running of trains. The damage being vibration and smoke caused by the running of trains. The damage being necessarily incidental to the running of the trains authorised by the statute, it was held that no action lies for the same. However, when an act authorised by the legislature is done negligently, then an action lies. In Smith v. London & South Western Railway Company, the servants of a Railways Company negligently left trimmings of grass and hedges near a rail line. Sparks from an engine set the material on fire. By a heavy wind the fire was carried to the nearby plaintiff's cottage which was burnt. Since it was a case of negligence on the part of the Railways Coch, they were held liable. When a statute authorises the doing of an act, which would otherwise be a tort, the injured has no remedy except the one (if any) provided by the statute itself. An Indian case of this point is of Bhogi Lal v. The Municipality of Ahmedabad, The Municipality of Ahmedabad demolished the wall of the plaintiff under their statutory powers. The demolition of the wall also resulted in the falling of the roof of the defendant on the wall. On an action by the plaintiff for the damage to his property, it was held by the court that the defendant would not be liable. For no suit will lie on behalf of a man who sustain a private injury by the execution of powers given by a statute, these powers being exercised with judgment and caution. But statutory powers are not charters of immunity for any injurious act done in the exercise of them. The act done in pursuance of the statutory powers must be done without negligence. If it is done negligently an action lies. PLAINTIFF THE WRONG-DOER Main object of the law of torts is make a person liable for the loss caused by his fault. If the defendant's fault causes loss to the plaintiff, defendant has to bear the loss by compensating the plaintiff. Thus, the loss suffered by the plaintiff on account of defendant's fault is shifted to the defendant. But in many cases, though the act of the defendant causes harm to the plaintiff, the plaintiff’s own fault may be the reason for the loss. Boloch v. Smith, A person, who having occasion to come to the house of another, strays from the ordinary approaches to the house, and trespasses upon the adjoining land, where there is no path, has no remedy for any injury which he may sustain from falling into unguarded wells or pits, as the injury is the result of his own carelessness or misconduct. But occupier of a land has a duty to keep premises safe even in respect of trespassers. If he violates this duty, then he cannot take this defence and will be liable to the plaintiff. In such a case, there will be mutual torts and each party may sue the other for the tort committed against him. There are two situations where this justification can be applied 1. Plaintiff caused the wrongful act to be committed by defendant. Defendant would not otherwise have committed the act. 2. Plaintiff alone is responsible for loss. Defendant had no duty to avoid the loss to the plaintiff. If both plaintiff and the defendant are at fault, the loss will have to be shared by them in the proportion of their fault. This is called ‘distributive justice’. Sayers v. Harlow, Mrs. Sayers found herself locked in a public lavatory. Unable to summon help, she tried to climb out over the top of the door. She found this impossible and, when climbing back down, allowed her weight to rest on the toilet roll which ‘true to its mechanical requirement, rotated’. Mrs. Sayers fell and was injured. It was held that 75% of her injury was the fault of the Council for providing a defective lock which jammed, and 25% was her own fault. Stapley v. Gypsum Mines Ltd., Two miners who worked, in breach of instructions, under a dangerous roof were held 80% contributory negligent. Froom v. Butcher, A front seat passenger injured in a car accident had his damage reduced by 25% because he had not worn a seat belt. JUDICIAL OR QUASI-JUDICIAL ACTS No action lies for acts done, or words spoken, by a judge in exercise of his judicial office, although they may be malicious. It is founded on the principle of public benefit that Judges should be at liberty to exercise their function independently and without fear of consequences. Judicial Officers Protection Act, 1850 grants protection to a judicial officer for any act done or ordered to be done by him in the discharge of his judicial duty. He is protected even though he exceeds his jurisdiction provided that at that time he honestly believed that he had jurisdiction to do or order the act complained of. Limits of such protection are; 1. No such protection is granted if a magistrate is acting mala fide and outside his jurisdiction. Sailajanand Pandey v. Suresh Chandra Gupta, The magistrate acting mala fide, illegally and outside his jurisdiction, ordered the arrest of the plaintiff. The Patna High Court held that he was not entitled to the protection given by the Judicial Officer’s Protection Act, 1850 and was, therefore, liable for the wrong of false imprisonment. 2. The protection of judicial privilege applies only to judicial proceedings as contrasted with administrative or ministerial proceedings and where, a judge acts  both judicially and administratively, the protection is not afforded to the act done in the later capacity. State of U.P. v. Tulsi Ram: Five persons were prosecuted for certain offences. One of them was acquitted by the Sessions Court and another by the High Court. The High Court upheld the conviction of only three of the five persons and authorized the issue of warrants against these three convicted persons. The judicial magistrate acting negligently signed an order for the arrest of all the five persons. As a result of this order, the plaintiffs, even though they had been acquitted by the High Court, were arrested by the police. It was held that the judicial officer was liable for the wrongful arrest of the plaintiff- respondents as the judicial officer was not exercising any judicial function but only an executive function while issuing warrants and therefore, the protection under the Judicial Officers Protection Act, 1850 could not be available in this case. PARENTAL OR QUASI PARENTAL AUTHORITY Parents and persons in loco parentis (place or position of parents) have a right to administer punishment on a child for the purpose of correction, chastisement of training. However one must remember that such an authority warrants the use of reasonable and moderate punishment only and therefore, if there is an excessive use of force, the defendant may be liable for assault, battery or false imprisonment, as the case may be. In England, as per Section 1(7) of the Children and Young Persons Act, 1933, a parent, teacher, or other person having lawful control or charge of a child or young person is allowed to administer punishment on him. In Fitzgerald v. North cotel, Cockburn C.J. Observed, “The authority of a schoolmaster is while it exists, the same as that of parent. A parent, when he places his child with a school master, delegates to him all his authority, so far as it is necessary for the welfare of the child”. The authority of a teacher to correct his students is not limited only to the wrongs which the student may commit upon the school premises but may also extend to the wrongs done by him outside the school because there is not much opportunity for boy to exhibit his moral conduct while in school under the eye of the master the opportunity is while he is at play or outside the school. R v. Newport ,It has been held that if the school rules prohibited smoking, both in the school and in the public, the school master was justified in caning a student whom he had found smoking cigarette in a public street. Reasonable professional behaviour, rather than perfection, is the norm. Eisel v. Board of Education, The Maryland High Court ruled that school counsellors were negligent in not revealing their knowledge of a student’s threatened suicide to the child’s parents. The counsellors’ negligence was not for failure to physically prevent the student’s suicide, but rather for not communicating information regarding the child’s intent. VICARIOUS LIABILITY As a general rule, a man is liable only for his own act but there are certain circumstances in which a person is liable for the wrong committed by others. This is called "vicarious liability", that is, liability incurred for another. The most common instance is the liability of the master for the wrong committed by his servants. In these cases liability is joint as well as several. The plaintiff can sue the actual wrong- doer himself, be he a servant or agent, as well as his principal. In the words of Salmond, "In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of another, however, blameless himself." The doctrine of vicarious liability is based on principles which can be summed up in the following two maxims, a) Qui facit per alium facit per se, The maxim means, 'he who acts through another is deemed in law as doing it himself. The master's responsibility for the servant's act had also its origin in this principle. The reasoning is that a person who puts another in his place to do a class of acts in his absence, necessarily leaves to determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the manner in which it is done, consequently he is answerable for the wrong of the person so entrusted either in the manner of doing such an act, or in doing such an act under circumstances in  which it ought not to have been done, provided what is done is not done from any caprice of the servant but in the course of the employment. b) Respondent superior, This maxim means that, the superior must be responsible or let the principal be liable. In such cases not only he who obeys but also he who command becomes equally liable This rule has its origin in the legal presumption that all acts done by the servant in and about his master's business are done by his master's express or implied authority and are, in truth, the act of the master. It puts the master in the same position as if he had done the act himself. The master is answerable for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorised by the former and committed by the latter. Modern View, In recent times, however, the doctrine of vicarious liability is justified on the principle other than that embodied in the above-mentioned maxims. It is now believed that the underlying idea of this doctrine is that of expediency and public policy. Salmond has rightly remarked in this connection that "there is one idea which is found in the judgments from the time of Sir John Holt to that of LordGoddard, namely, public policy." Modes of vicarious liability, The liability for others wrongful acts or omissions may arise in one of the following three ways, a) Liability by ratification, Where the defendant has authorised or ratified the particular wrongful act or omission. b) Liability arising out of special relationship, Where the defendant stands to the wrong- doer in a relation which makes the former answerable for wrongs.committed by the other, though not specifically authorised. This is the most important form of liability. Liability arising out of master and Servant. In order that the master may be held liable for the tort of his servant following conditions should be fulfilled, 1. Tort is committed by the 'servant', and 2. The servant committed the tort while acting in the course of employment of his  master. Who is servant? Lord Thankerton has said that there must be contract of service between the master and servant has laid down the following four ingredients. 1) the master's power of selection of his servant, 2) the payment of wages or other remuneration, 3) the master's right to control the method of doing the work, and 4) the master's right of suspension or dismissal. Thus, a servant may be defined as any person employed by another to do work for him on the terms that he is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. A servant is thus an agent who works under the supervision and direction of his employer, engaged to obey his employer's order from time to time. Applying this test, a son is not a servant of his father in the eye of law. Difference between Servant and Independent Contractor 1. A servant is an agent who works under the supervision and direction of his employer. Where as An independent contractor is one who is his own master. 2. A servant is a person employed to obey his master's directions from time to time. Where as An independent contractor is a person engaged to do certain works, but to exercise his own discretion as to the mode and time of doing it! 3. A servant is bound by the orders of his master but an independent contractor is bound by the terms of his contract. Course of employment, A servant is said to be acting in the course of employment if, 1) the wrongful act has been authorized by the master, or 2) the mode in which the authorized act has been done is wrongful or unauthorized. It is the general rule that master will be liable not merely for what he has authorized his servant to do but also for the way in which he does that which he has authorized to do. An employee in case of necessity is also considered as acting in the course of employment, if he is performing his employer's business. For instance, a Government employee was travelling in a jeep to deliver medicines in the course of his duties. He had licence to drive and had also been authorized to drive the Government's vehicle in the case of necessity. The driver of the jeep suddenly took ill and, therefore, he had to drive, in order to ensure the medicines reaching their destination, While driving the jeep he negligently run over the deceased, It was held that he was acting in the course of employment and thus the Government was liable, The trend of the recent decisions of various High Courts is to allow compensation to the accident victim against the owner of the vehicle and through him, the insurance company. The aspect of the relationship of the independent contractor and employer between the mechanic or the workshop and the owner of the vehicle has been generally ignored, such liability has been recognised on the basis of the law of agency by considering the owners of the workshop or the mechanic as an agent of the owner of vehicle. The recent trend in law to make the master liable for acts which do not strictly fall within the term 'in course of employment' as ordinarily understood. The owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of the employment but also when the driver is with the owner's consent, driving, the car on the owner's business or for the owner's purposes. Thus, although the particular act which gives the cause of action may not be authorised, yet, if the act is done in the course of employment which is authorised, the master is liable. In other words, "to hold master liable for the wrongful act of a servant it must be committed in the course of master's business so as to form part of it, and not merely, coincident in time with it," but if the torts are committed in any manner beyond the scope of employment the master is liable only if he was expressly authorised or subsequently ratified them. Main incidents of Master's Liability, There are six principal ways in which a master becomes liable for the wrong done by servants in the course of their employment. 1. The wrong committed by the servant may be the natural consequence of something done by him with ordinary care in execution of his master’s specific  orders. In Indian Insurance Corporation, Association Pool, Bombay v. Radhabai, the driver of a motor vehicle belonging to the Primary Health Centre of the State was required to bring the ailing children by bus to the Primary Health Centre. The driver in the course of driving gave the control of the steering wheel to an unauthorised person. 'this was an unauthorised mode of doing the act authorised by the master. It was held that in such circumstances, the Government, viz., the owner of the vehicle is vicariously liable for the negligence of the driver in permitting unauthorised person to drive the vehicle. 2. Master will be liable for the negligence of his servant. In Baldeo Raj v. Deowati, the driver of a Truck sat by the side of the conductor and allowed the conductor to drive. The conductor caused an accident with a rickshaw as a result of which a rikshaw passenger died. It was held that the act of the driver in permitting the conductor to drive the vehicle at the relevant time was a breach of duty by the driver, and that was the direct cause of the accident. For such negligence of the driver his master was held vicariously liable. 3. Servant's wrong may consist in excess of mistaken execution of lawful authority. Here two things have to be established. In the first place, it must be shown that the servant intended to do on behalf of his master something which he was, in fact, authorised to do. Secondly, it has to be proved that the act if done in a proper manner, would have been lawful. 4. Wrong' may be a wilful wrong but doing on the master's behalf and with the intention of serving his purpose. If a servant performs some act which indicates recklessness in his conduct but which is within the course of his employment and calculated to serve the interest of the master, then the latter will be saddled with the responsibility for it. 5. Wrong may be due to the servant's fraudulent act. A master is liable also for the wrongful acts of his servants done fraudulently. It is immaterial that the servant's fraud was for his own benefit. The master is liable if the servant was having the authority to do the act, that is, the act must be comprehended within his ostensible authority. The underlying principle is that on account of the fraudulent act of the servant, the master is deemed to extend a tacit invitation to others to enter into dealings or transactions with him. Therefore, the master's liability for the fraudulent acts of his servants is limited to cases where the plaintiff has been invited by the defendant to enter into some sort of relationship with a wrong doer. Consequently, where there is no invitation, express or implied, the acts will be treated as the independent acts of his servant himself, and outside the scope of his employment, 6. Wrong may be due to the Servant's Criminal Act. Though there is no such thing as vicarious liability in criminal proceedings, yet in a civil action, a master is liable in respect of the criminal acts of a servant, provided they are committed in the course of his employment. GOVERNMENT LIABILITY IN TORTS Vicarious Liability of the State Position in England At one time in England the maxim of the Common Law was that "the King can do no wrong", and as such crown could not be sued for the tortious acts of its servants. The individual wrong-doer (that is, the official) was personally liable for the wrong committed by him, even when the wrong was actually authorised by the Crown or was committed in the course of his employment. Obviously, the position thus obtained was inequitable and incompatible. However, with the expansion in the activities of the State, it became necessary that the State should shoulder liability for the acts of its servants without claiming any special immunity. With this object in view, the Crown Proceedings Act, 1947, was passed. Now, like a private employer, the Crown is liable for the torts committed by its servants in the course of their employment. Position in India Article 300 of the Constitution of India stated the legal position of State as regards its liability for the tortuous acts of its servants done in course of their employment. The Article provides that the Government of India may sue or be sued by the name of Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the dominion of India and the corresponding provinces or the corresponding Indian states might have sued or been sued if this constitution had not been enacted. Thus, the Union of India and the states are juristic persons by virtue of Article 300 but this Article does not mention those circumstances under which the Union of India and the State Governments can sue and be sued. This Article simply mandates to refer to the legal position prevailing before the commencement of the constitution. The legal position of the State before the Constitution came into force is to be found in the Government of India Act, 1935, which again like the Constitution, said that the position prevailing before the Act of 1935, that is, position as obtaining under the Government of India Act, 1915, shall prevail. The Act of 1915 in a like manner made reference to the Government of India Act, 1858. The Act of 1858 made it clear that the Government was liable for acts of its servants in those cases in which the East India Company would have been liable. The East India Company was held to be liable for the tortuous acts of its servants which were done in the exercise of its non-sovereign function, that is, the function which could have been performed by a private individual. It was held not to be liable for a tort committed by its servants if the act was done in exercise of sovereign power. The question of liability of East India Company was considered in the following case, In Peninsular & Oriented Steam Navigation Company v. Secretary of State for India, the plaintiff's horse was injured by the negligence of the servants of the Government. These were engaged at the time of the injury in carrying along a public road a heavy piece of iron for being placed on board a steamer. The plaintiff filed a suit against the Secretary of State for the recovery of damages. Held, the Government was liable as the act in question was not being done in the exercise of any Governmental or sovereign function. Peacock C.J., observed in this case, "There is a great and clear distinction between acts done in exercise of what are usually termed sovereign powers and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them. Where the act is done or a contract is entered into, in the exercise of powers usually called sovereign powers, no action will lie." In State of Rajasthan v. Vidhyawati, the driver of a Rajasthan Government's jeep which was meant for the use of the collector was taking it from the repair shop to the collector's residence. On way, owing to rash and negligent driving, a pedestrian was knocked down and killed. The widow of the victim sued the Government for damages. Held, the State Government was vicariously liable for the tortious acts of its servants, like any other employer. In Fatima Begum v. State of Jammu & Kashmir, a truck belonging to the Government Transport Undertaking knocked (town a cyclist while it was engaged in transporting police personnel from the place of duty to barracks. The High Court rejected plea of defence of sovereign immunity and held the State Government liable. In lqbal Kaur v. Chief of Army Staff, an accident occured due to the negligent driving by a driver of the Government while he was going with a truck for imparting training in motor driving to new recruits. Held, the act did not constitute an act in exercise of sovereign power and the Union of India was liable for damages. In Union of India v. Savita Sharma, soldiers were being transported in an army vehicle. Negligence on the part of its driver resulted in an accident to a private tempo. An occupant of ths tempo was injured in the accident. Held, the State was liable for damages. In State of Tamil Nadu v.M.N. Shamsuden, the death of a person was caused by an ambulance belonging to the Government which was being used for transporting a patient for emergency treatment. The Madras High Court disallowed the protection of immunity on the ground that transporting of the patient to the hospital could be done even by private individuals. In Surjit Singh Bhatia v. Segalla Ramula, a military vehicle dashed against a motor cycle and caused injuries to the pillion rider. The Punjab & Haryana High Court rejected the plea of sovereign immunity. In Indian Insurance Corporation Asson Pool v. Radhabai, it has been held that taking ailing children to Primary Health Centre in a vehicle belonging to the State Government is not a sovereign function and the State is liable for the accident caused by the negligence of the driver of such vehicle. It was a case decided on the lines of Vidyawati's case. In Union of India v. Harbans Singh, meals were being carried from the cantonment, Delhi for being distributed to military personnel on duty. The truck carrying the meals belonged to the military department and was being driven by a military driver. It caused accident resulting in the death of a person. It was held that the act was being done in the exercise of sovereign powers, and therefore, the State was not liable for the same. In Pushpa Thakur v. UOI, where the truck involved in accident was engaged in carrying ration and sepoys within the country during peace time in the course of movement of troops after the hostilities were over, held that this is a "routine duty" not directly connected with carrying on of war, the traditional sovereign function. In Ram Ghulam v. State of Uttar Pradesh, the police authorities recovered some stolen property and deposited the same in the Malkhana. The property was again stolen from the Malkhana. The Government of U.P. was held not liable for the same to the owner of the property as the Government servants were performing obligations imposed by law. Similar decision was given in Mohd. Murad v. Govt. of Uttar Pradesh. In State of U.P. v. Hindustan Lever Limited, the act of the Government servants was in exercise of statutory powers but the powers in that case were not sovereign powers, and therefore, the State was held liable. In People's Union for Democratic Rights v. Police Commn, Delhi, the State was ordered to pay compensation to victims of police firing.The police fired without any warning on a group of poor peasants who had collected for a peaceful meeting. Thus, from the above cases it can be concluded that sovereign powers means those powers which can be lawfully exercised by a person by virtue of delegated sovereign powers. It must include maintenance of the army, various departments of the Government for maintenance of public law, order, administration of the country. An easy test to consider that whether a function is a non-sovereign function or not is that if a private individual can be engaged in that function it is a non-sovereign function. Thus, functions relating to trade, business, commerce and the welfare activities are non-sovereign functions. Vicarious Liability of the Government of India: Plea for Review While in England, after the passing of the Crown Proceedings Act, 1947, it is no defence for the State that the tort committed by its servants was in discharge of obligations imposed by law, in India, the same has been considered to be a defence in a number of cases. However, in order to exempt the State from liability it is further necessary that the statutory functions which are exercised by the Government servants were exercised by way of delegation of the sovereign power of the State. In case the tortious act committed by the servant was in discharge of non-sovereign functions die State would be liable for the same (Kasturi Lal’s case; State of U.P. v. Hindustan Lever Ltd.). The palpable unjustness of the decision in Kasturi Lal case has led to its bypassing in recent times. Today, the State has been held liable in respect of loss or damage either to the property or to a person. Although the decision of the Supreme Court in Kasturi Lal's case is yet to be overruled, subsequent decisions of the court have greatly undermined its authority and reduced the strength of sovereign immunity In Common Cause, A Registered Society v. UOI ,the court observed that "the doctrine of sovereign immunity has no relevance in the present day context Much of Kasturilal’s efficacy as a binding precedent has been eroded". The present law relating to the vicarious liability of State is not satisfactory in India. A proper legislation is lacking in this regard. It is left to courts to develop the law according to the views of the judges. The citizens are not in a position to know the law definitely. In Kasturi Lal case, die Supreme Court had expressed dissatisfaction at the prevailing position. It said that the remedy to cure this position lies in the hand of the Legislature. In T.V. Nagendra Rao's case also, the Supreme Court suggested for enacting appropriate legislation to remove die uncertainty in this area. The position prevailing before the commencement of the Constitution remains unchanged though the Parliament and the State Legislature have been empowered to pass law to change the position (Article 300 of Constitution). The unsatisfactory state of affairs in this regard is against social justice in a welfare State. In the absence of legislation, it will be in consonance with social justice demanded by the changed conditions and the concept of welfare State that the courts will follow the recent decisions of the Supreme Court rather than Kasturi Lal. It emerges from the various decisions (barring recent ones) that the Government is not liable for the torts committed by its servants in exercise of sovereign powers, but for the torts committed in the exercise of non-sovereign powers. Sovereign powers mean powers which can be lawfully exercised only by a sovereign or by a person to whom such powers have been delegated. There are no well defined tests to know what are sovereign powers. Functions like maintenance of defence forces, maintenance of law and order and proper administration of the country, and the machinery for administration of justice can be included in sovereign functions. Functions relating to trade, business and commerce and welfare activities (viz. running of hospital) are amongst the 'non-sovereign' functions. Broadly speaking such functions, in which private individuals can be engaged in, are not sovereign functions. Routine activities, such as maintenance of vehicles of officers of the government, also fall within the sphere of 'non-sovereign' functions. The following are the instances of "sovereign" functions: 1. Maintenance of defence force that is construction of a military road, distribution of meals to the army personnel on duty, checking army personnel on duty. In Baxi Amrik Singh v. Union of India, held that the checking of army personnel on duty was a function intimately connected with the army discipline and it could only be performed by a member of the Armed Forces and that too by such a member who  is detailed on such duty and is empowered to discharge that function. 2. Maintenance of law and order that is if die plaintiff is injured while police personnel are dispersing unlawful crowd (State of Orissa v. Padmalochan), or plaintiff's loudspeaker set is damaged when the police makes a lathi charge to quell a riot (State of M.P. v. Chironji Lal). The following are the instances of "non-sovereign" functions; a. Maintenance of dockyard (P. & O. Steam Navigation Co. case). b. A truck belonging to the public works department carrying material for the construction of a road bridge (Rap Raw Verses The Punjab State), Famine relief work (Shyam Sunder v. State of Rqjasthan). c. A Government jeep car being taken from the workshop to the Collector's bungalow for the Collector's use (State of Rajasthan v. Vidjawati). d. Taking ailing children to Primary Health Centre in a Government carrier (Indian Insurance Co. Assn. Pool v. Radbabai). e. Carrying military jawans from Railway Station to the Unit Headquarters (union of India v. Savita Sharma). Similarly, carrying ration and sepoys within the country during peace time in the course of movement of troops after the hostilities were over [Pushpa Tbakur v. UOI]. f. Carrying Air Force officers from one place to another in Delhi for playing hockey and basket ball (Satya Wati Devi v.UOI), or bringing back military officers from the place of exercise to the college of combat g. Taking a truck for imparting training to new M.T. Recruits (Iqbal Kaur v. Chief of Army Staff). h. Transporting of a machine and other equipment to a military training school (Union of India v. Sugrabai). i. Where some military jawans found some firewood lying by river side and carried the same away for purposes of camp fire and fuel (Roop Lal v.UOI). j. a 'service' (facility) provided to a 'consumer' within the meaning of the Consumer Protection Act, 1986 is not a 'sovereign' function (Lucknow Development Authority v. M.K. Gupta).  UNIT-III NEGLIGENCE Introduction: In day to day usage Negligence denotes mere carelessness. In legal sense it signifies failure to exercise the standard of care which the doer as a reasonable man should, by law, have exercised in the circumstances. Generally speaking there is a legal duty to take care where it was or should have been reasonably foreseeable that failure to do so was likely to cause injury. Negligence is, accordingly, a mode in which many kinds of harms may be caused, by not taking such adequate precautions as should have been taken in the circumstances to avoid or prevent that harm, as contrasted with causing such harm intentionally or deliberately. A man may, accordingly, cause harm negligently though he was not careless but tried to be careful, if the care taken was such as the court deems inadequate in the circumstances. Generally speaking one is responsible for the direct consequences of his negligent acts where he is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to another. Negligence takes innumerable forms, but the commonest forms are negligence causing personal injuries or death, of which species are employers’ liability to an employee, the liability of occupiers of land to visitors thereon, the liability of suppliers to consumers, of persons doing work to their clients, of persons handling vehicles to other road-users, and so on. The categories of negligence are not closed and new varieties such as negligence causing economic loss may be recognized. Negligence has two meanings in law of torts: 1. Negligence as state of mind- Negligence is a mode of committing certain torts e.g. negligently or carelessly committing trespass, nuisance or defamation. This is the subjective meaning of negligence advocated by the Austin, Salmond and Winfield. 2. Negligence as a type of conduct- Negligence is a conduct, not a state of mind. Conduct which involves the risk of causing damage. This is the objective meaning of negligence, which treats negligence as a separate or specific tort. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care or skill, by which neglect the plaintiff has suffered injury, to his person or property (Heaven v. Pender). Essentials of Negligence In an action for negligence, the plaintiff has to prove following essentials: 1. That the defendant owed a duty of care to the plaintiff. 2. That the defendant made a breach of the duty i.e. he failed to exercise due care and skill. 3. That plaintiff suffered damage as a consequence thereof. 1. Duty of care to the plaintiff The existence of a duty situation or a duty to take care is thus essential before a person can be held liable negligence. It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him specific legal duty to take care, of which he has made a breach. Normally the existence of a duty situation in a given case is decided on the basis of existing precedents covering similar situations; but it is now well accepted that new duty situations can be recognized. In Donoghue v. Stevenson, the appellant plaintiff drank a bottle of ginger beer which was brought from a retailer by her friend. The bottle which was of dark opaque glass in fact contained the decomposed body of snail (found out by her when she had already consumed a part of the contents of the bottle). Held that the manufacturer of bottle was responsible for his negligence towards the plaintiff. According to Lord Atkin: “A manufacturer of the products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of the reasonable care in the preparation or putting up of the products will result in an injury to consumers’ life or property, owes a duty to the customer to take that reasonable care.” The House of Lords also rejected the plea that there was no contractual relationship between the manufacturer and plaintiff. Lord Atkin said: “The rule that you are to love your neighbor becomes in law ‘you must not injure your neighbor’.’’ Similarly, in Hedley Byrne &co. Ltd v. Heller & Partners Ltd, again a new duty was recognized. It was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages apart from contract or fiduciary relationship. Lord Pearce in this case said: “How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the court’s assessment of the demands of society for protection from carelessness of others.” Whether the defendant owes a duty to the plaintiff or not depends on reasonable foresee ability of the injury to the plaintiff. In Heaven v. Pender, held that the duty arises only if a person is nearer to the person or property of another. A useful test to decide culpability is to determine what a ‘Reasonable Man’ (i.e. a man of ordinary prudence or intelligence) would have foreseen and behaved under the circumstances. The standard of foresight of the reasonable man is an impersonal or objective test. However, the standard of care of the reasonable man involves in its application a subjective element. In Rural Transport Service v. Bezlum Bibi, the conductor of an overloaded bus invited passengers to travel on the roof of the bus. One of the passengers on the roof of the bus was struck by an overhanging branch of a tree. He fell down and died. Held that there was negligence on the part of both the driver and conductor of the bus. In SushmaMitra v. M.P. State Road Transport Corpn , the plaintiff was resting her elbow on the window sill. A truck coming from the opposite direction hit her elbow as a result of which she received severe injuries. Held that it is the duty of the driver to pass on the road at a reasonable distance from the other vehicles. When the injury to the plaintiff is not foreseeable, the defendant is not liable. In Glasgow Corpn. v. Muir, the managers of the defendant corporation tearooms permitted a picnic party to have their food in the tearoom. Two members of the picnic party were carrying a big urn containing 6-9 gallons of tea to a tearoom through a passage where some children were buying ice creams. Suddenly one of the persons lost the grip of the handle of urn and six children, including the plaintiff, were injured. Held that the managers could not anticipate such an event and, therefore, she had no duty to take precautions. Hence neither she nor he corporation could be held liable. To establish negligence it is not enough to prove that the injury was foreseeable. But a reasonable likelihood of the injury has also to be shown. The duty is to guard against reasonable probabilities rather than bare or remote or fantastic possibilities. In Fardon v. Harcourt, the defendant parked his car by the roadside and left a dog inside the car. The dog jumped out and smashed a glass panel. A splinter from this glass injured the plaintiff while he was walking past the car. Held that the accident being very unlikely, the defendant was not liable. In Balton v. Stone, a person on road was injured by a ball hit by a player on a cricket ground abutting on that highway. The ground had been used for 90 years and during the last 30 years the ball had been hit in the highway on about six occasions but no one had been injured. Held that the defendant (committee and members of cricket club) were not negligent. When the defendant owed a duty of care to persons rather than the plaintiff, the plaintiff cannot sue even if he might have been injured by the defendant’s act. Thus the duty must be owed to the plaintiff. In Palsgraf v. Long Island Railroad Co.,a passenger carrying a package was trying to board a moving train. He seemed to be unsteady as if about to fall. A railway guard, with an idea to help him pushed him from behind. In this act, the package (of fireworks) fell resulting in an explosion, as a result of which the plaintiff was injured. Held that the guard if negligently to the holder of the package was not negligent in relation to the plaintiff standing far away (about 25 feet). Similarly, counsel has a duty towards client. The Counsel should be careful in performing his professional duties. If a counsel, by his acts or omissions, causes the interest of the party engaging him, in any legal proceedings to be prejudicially affected. He does so at his peril. On the same analogy a person engaged in some particular profession is supposed to have the requisite knowledge and skill needed for the purpose and he has a duty to exercise reasonable degree of care in the conduct of his duties. The standard of care needed in a particular case dependents on the professional skill expected from persons belonging to a particular class. A surgeon or anesthetist will be judged by the standard of an average practitioner of