This short law article tells you about volenti non-fit injuria as per the Law of Torts and shares its exceptions and relation with the Indian Penal Code (IPC).

Definition of Volenti Non-Fit Injuria

The literal meaning of the volenti non-fit injuria is “to a willing person, injury is not done”. When one person is aware of the risk involved in an event and still continues to engage in it, then he cannot claim the damages from the other person, and the defendant is discharged from his liability.

The volenti non-fit injuria is one of the general defences given to the defendant to protect himself from the allegations of the defendant. This theory prevents the plaintiff from exploiting the respondent and protects the defendant from being alleged for a wrong that he has not committed.

Essential Ingredients of Volenti Non-Fit Injuria

1. Plaintiff is aware of the risk involved.
2. Aware of the risk, the plaintiff still agrees to engage and suffer the harm.

Since it is a defence given to the defendant, the burden of proof lies on the defendant to successfully avail the benefit of the defence. The defendant must prove that the plaintiff was just not only aware of the possible occurrence of the harm but also consented to engage in one. If the defendant succeeds, then he gets discharged from his liability. The consent of the plaintiff can either be expressed or implied, and it must be free consent.

If the consent obtained by the plaintiff is not free or is out of force, fraud, or any mischievous ways, and is obtained through fraud, coercion, misrepresentation, undue influence or mistake of law or fact, then the defendant cannot take the defence due to the defendant being the wrongdoer in the first place. To take the defence, the defendant must be free of any guilt.

Exceptions to Volenti Non-Fit Injuria

There are some exceptions to the applicability of the volenti non-fit injuria, where the defendant cannot avail the defence of volenti non-fit injuria even if he is in the position to take it (even if prima facie it seems legit):

1. Rescue cases: A situation where the plaintiff does an act of helping (rescuing) someone by his own will and consequently suffers an injury, even then, the said defence will not apply, and the defendant will be held liable.
2. Illegal conduct: If the plaintiff and the defendant are involved in any illegal activity, which is an offence in the eyes of the law, then the defence will no longer be available.
3. Defendant himself is negligent: If there is any negligence act done on the part of the defendant and the plaintiff suffers harm, then the defendant cannot take the defence and has to compensate the plaintiff for the injury caused to him.

Relation of Volenti Non-Fit Injuria With IPC

Section 87 of the Indian Penal Code, 1860, is also based on the principle of volenti non-fit injuria. The section states that if the person has given his consent to a particular event and consequently suffers harm, he would not be eligible enough to hold the person liable for the harm suffered by him.

In short, the volenti non-fit injuria is a defence available to defendants but with certain limitations to its applicability. While granting the judgement of defence to the party, the court must ensure that basic requirements are fulfilled, and the cases do not fall under any exception of the defence.

Read Next:
1. Top Legal Maxims for Law Exams
2. What Is Strict Liability and Absolute Liability
3. Read All Torts Law Notes

What Is Volenti Non-Fit Injuria Under the Law of Torts?
Suhani Gandhi

As per the established law of the land, a person who is legally in possession of a property has the right to enjoy that property without any interruption or disturbance. For example, if you have a house or rent one, you have the right to live peacefully in it (and enjoy it). However, if another person’s wrongful use or enjoyment of property causes unlawful interference with such person’s enjoyment or use of that property, the tort of nuisance has occurred.

In simple words, if any person’s wrongful use or enjoyment causes unlawful interference to the actual owner or tenant’s use of that property, then nuisance is said to have occurred. For example, someone next to your house (your neighbour) has set a drain via which dirty water flows into your house. This is an example of a nuisance.

The word nuisance has its source in the French word “nuire” and the Latin word “nocēre,” which means “to do hurt or to annoy.” Therefore, the term nuisance means annoyance, anything which causes hurt, inconvenience or damage or which essentially interferes with the enjoyment of life or property.

Here is an article that talks about the meaning, types and remedies of nuisance under the law of tort.

Definition of Nuisance

Here are some of the definitions given by some famous jurists.

Stephen’s Definition

According to him, nuisance can be defined as anything done or annoyance of the lands, tenements/building (house) or hereditaments (an item of inheritance like property) of another not amounting to trespass.

Salmond’s Definition

Salmond has defined the nuisance as:

The wrong which consists in causing or allowing without lawful justification the escape of any deleterious (harmful) thing from his land or from elsewhere into land in possession of the plaintiff, e.g. water, fumes, smoke, gas, noise, heat, vibration, electricity, disease, germs, animals.

Winfield’s definition

Winfield believed that nuisance cannot be defined. However, for the purpose of the law, he described nuisance as:

Unlawful interference with a person’s use or enjoyment of land or of some right over or in connection with it.

Types of Nuisance

There are two types of nuisance: private nuisance and public nuisance.

A private nuisance is a civil wrong, whereas a public nuisance is a criminal wrong or a crime.

1. Private Nuisance

Private nuisance means interfering with a person’s right to enjoyment and use of his land. It is an injury to a person’s private rights and the prosperous occupation of his property. Basically, private nuisance protects the interest of the particular person with respect to his land or premises in use and its enjoyment.

2. Public Nuisance

A public nuisance is an interference with the right of the public in general and is punishable as an offence. It covers several types of minor crimes that threaten the health, safety, comfort, convenience, welfare, or morals of the community. A public nuisance causes interference to the public at large and not merely to one person.

Public nuisance as an offence has been defined under section 268 of the Indian Penal Code, 1860.

Remedies Available

Remedies for nuisance can be studied under the following three heads:

1. Injunction: An injunction is an order which restricts the defendant from doing an act of nuisance, or discontinue plans for threatened nuisance.
2. Abatement: Abatement of nuisance refers to the eradication of a nuisance by the party who has been harmed without the need for legal action.
3. Damages: Damages may be offered to the aggrieved party in the form of compensation, which could be in the form of nominal damages.

Further, in case of a public nuisance, a fine or sentence may also be imposed in addition to abatement or injunctive relief.

Read Next:
1. Remedies Under Tort Law
2. Introduction, Definition, and Characteristics of Tort
3. All Law Notes Related to the Law of Torts

What Is Nuisance in Law of Torts in India?
Subhashini Parihar

In this article, you will learn about general defences available under the Law of Torts in India with easy examples. At last, you will read about the differences between necessity, inevitable accident, and mistake.

8 General Defences Under the Law of Torts

The Law of Torts contains some general defences available to parties to escape from the liability of any act or omission. They are as follows:

1. Volenti Non-Fit Injuria

Volenti Non-Fit Injuria is a Latin legal maxim that means “voluntarily taking a risk.” It is a situation where a party puts itself in a dangerous situation and incurs damage. To avail the defence of Volenti Non-Fit Injuria, it is necessary to prove that the plaintiff knew about the consequences and still gave consent to it.

Such consent to the injury should be free of threat and compulsion. The consent could be either through a statement (expressed consent) or conduct (implied consent).

For example, Mr A buys a ticket to watch a live cricket match in the stadium. During the game, Mr A gets hit by the ball. Mr A cannot claim damages in this scenario, as he has impliedly given consent to such a situation.

Related: What Is Volenti Non-Fit Injuria Under the Law of Torts?

2. Plaintiff – the Wrongdoer

Plaintiff – the wrongdoer as a defence is applicable when the plaintiff himself does something wrong and causes damage to himself. This defence is complemented by one of the most common law principles, which is ‘one must approach the court with clean hands.’ This bars the plaintiff from claiming damages from someone else because of harm caused to him due to his own mistake.

For example, Mr A trespasses into Mr B’s house and gets bitten by Mr B’s dog. Now, Mr A claims damages from Mr B, to which B takes this defence and refuses to make such a claim because here Mr A, being the plaintiff, has also committed an offence of trespassing and hence cannot claim any damages.

3. Inevitable Accident

Inevitable accidents are those that cannot be escaped even after taking full reasonable care. Inevitable accidents are unforeseeable, which means accidents and injuries caused to the party could not be predicted. The defendant avails this defence to escape liability when he has taken reasonable care on his part but still could not stop the accident from happening.

For example, Mr A got his car serviced before going on a trip with his friends. Still, he met with an accident due to the failure of the brakes. Here, even after taking proper precautions, Mr A and his friends could not escape from the accident. Hence, it amounts to an inevitable accident.

4. Act of God

The Act of God is an uncontrollable and unpredictable natural force. It covers all the natural calamities that are beyond the control of the human hand. ‘Vis Major’ is a Latin version of ‘superior force’ or ‘the Act of God.’

For example, due to the cyclone in the village, the roofs of many houses flew away. People claimed damages from the builder, to which the builder refused by taking the defence of the Act of God.

5. Private Defence

This defence can be used to get away with the liability of causing injury to the other party in order to protect oneself. For private defence to be applicable, it must be ensured that the party was under attack or threat from the other party. The degree of defence should be proportionate to the degree of attack (it should not be higher than the degree of the attack or threat). And it should be ensured that the defence taken was for one’s protection and not for any revenge purpose.

For example, Mr A, a thief, entered Mr B’s house and threatened him to give all the valuable things, and if Mr B did not comply, Mr A would kill Mr B. To prevent himself, Mr B banged Mr A’s head with an object available nearby. In this case, Mr B can take the defence of private defence, as it was to protect himself, and the degree used was also proportionate without any malice intention.

6. Mistake

Mistakes are of two types: Mistake of Fact and Mistake of Law.

A mistake of fact is when a person commits an offence because of a misunderstanding of some facts but did not intend to do so. But the mistake of law (ignorance of the law) is no excuse and not acceptable, as stated in the Latin maxim ‘Ignorantia juris non excusat.’ Hence, it is not considered a defence in the Law of Torts. Otherwise, people would start taking this defence as an excuse to commit offences irrationally.

A mistake of fact is considered a defence and eliminates the burden of the defendant by being an exception.

For example, Mr A stepped out during the COVID-19 nationwide lockdown imposed by the central government under the Epidemic Disease Act of 1897. When caught, Mr A said he did not know about this law. In this case, Mr A cannot take the defence of mistake, as ignorance of the law is no excuse.

7. Necessity

Necessity as a defence is taken when one party injures the other party to protect him from some major damage. To avoid greater harm, small harm done to a party can be avoided. But it should be proven that the step taken was necessary.

For example, Mr A’s house is on fire. To get into Mr A’s house and to rescue him, Mr B trespasses Mr C’s house. So, here the minor harm, i.e., trespass, can be ignored to protect Mr A from greater harm.

8. Statutory Authority

If a party does any damage under any authority driven by a statute passed by the government, then it is considered a valid defence. But the body, having the authority, must ensure that such defences are availed in a bona fide manner and no irrational decision is taken. Any scope of carelessness is not entertained.

For example, the roads of the XYZ colony were under construction upon the orders of the municipal corporation. Due to this, colony members were facing some problems. Under no circumstances the colony members can claim damages, as the municipal corporation can take the defence of statutory authority.

Difference Between Necessity, Inevitable Accident, and Mistake

Necessity, inevitable accident, and mistake being somewhat similar, differ from each other on the below-stated lines.

• Necessity: Small harm or damage is done to prevent a greater harm from happening.
• Inevitable accident: The wrongful act occurred even after taking all the precautions (reasonable care), which was unavoidable and unforeseeable.
• Mistake: The wrongful act occurs due to unawareness and lack of knowledge of the law.

Example:

• Necessity: Mr A attempts suicide from his terrace. Mr B, a stranger, commits trespass to the property to stop him. Even though Mr B has committed an offence, he will not be held liable under this defence.
• Inevitable accident: Mr B plans a road trip with his friends for which he gets his car ready, and still they meet with an accident. Mr B can take the defence of an inevitable accident because the accident took place after taking all reasonable care, and hence, it was unforeseeable.
• Mistake: Mistakenly, Mr A hits Mr C thinking his friend Mr B is standing in front of him. This being a mistake of fact and not a mistake of law can be taken as a defence by Mr A.

Here is the above information in tabular form:

Read Next:
1. What is Strict Liability and Absolute Liability
2. Concept of Vicarious Liability Under Tort Law
3. What Is Injurious Falsehood and How It Differs From Defamation

What Are the General Defences Under the Law of Torts
Suhani Gandhi

Injurious falsehood means stating untrue and false statements about a plaintiff which might result in property or business damage or economic harm. Injurious falsehood is committed in business competition to cause harm to their rival parties.

This law note tells you what is injurious falsehood, its essentials, remedies, defences, and how it differs from defamation.

Essentials of Injurious Falsehood

The crucial ingredients required to fulfil the condition of injurious falsehood are:

1. Direct Relation

There should be direct relation of a statement made by the defendant to the plaintiff’s property or business.

To restore the plaintiff’s right, it is imperative to acknowledge the statement as to the direct relation to the plaintiff’s property. If the statement did not refer to the plaintiff’s business, the plaintiff cannot claim the injury. On the other, if the statement referred to the plaintiff’s business, then the maker of the statement cannot rebut.

2. Publication of Statement

There should be a publication of the disparaging statement to the third party.

A disparaging statement made by the defendant should involve a third party. For a statement to amount to disparaging, it must be known by the third party and not mere the plaintiff. Here, the publication does not mean that the statement must be printed, but a statement spoken orally or written would also be construed as published if it involves a third party.

3. Ill Will

The statement made by the defendant must be of ill will.

An important ingredient of injurious falsehood is establishing that the defendant had stated against the plaintiff with ill will. The publisher already knew his statement had the potential to cause damage to the plaintiff’s business and incur a monetary loss.

4. Cause Special Damage

The false statement made by the defendant must cause special damages to the plaintiff.

The publication made by the defendant must cause special damage. Therefore, for the recovery of the damage, special damage must be proved. Here, in the legal context, special damages mean monetary loss or loss of business opportunities.

Injurious falsehood incorporates slander of title and goods with available remedies of the same.

Slander of Title and Goods

When a disparaging and false statement is made about the plaintiff’s either movable or immovable property that the plaintiff no longer deals in the same business and causes damages to the plaintiff is known as slander of title. Ratcliffe vs Evans (1892)

If the same disparaging statement is made regarding the quality of the goods of the plaintiff causing special damage is slander of goods.

Remedies Available in Slander of Title

Primarily, the plaintiff will seek injunctive relief from the court to prevent any further damages made by the disparaging statement. The plaintiff has the burden of proof to establish the statement as disparaging and false. In an instance, if the defendant makes an untrue statement unknowingly but no special damage is caused to the plaintiff, then the claim for the recovery gets rebut.

Defences to Slander of Title

As a defence line, conditional and absolute privilege is used by the defendant. Conditional privilege is when the defendant knows the statement made stands untrue about the plaintiff’s property. In contrast, absolute privilege exists when the defendant makes the statement during the judicial proceedings.

If any privileges qualify, the plaintiff will lose the case even if all the elements justify the claim.

If an act is authorised by the statutory authorities, then the defendant will not be held liable for his actions.

Remedies Available in Slander of Goods

Under section 36A(1)(x) of the Monopolies and Restrictive Trade Practices (MRTP) Act, 1969, any person involved in stating false or misleading facts undervaluing the products, service, or trade of another person would be considered as engaged in unfair trade practice.

Section 2(47) of the Consumer Protection Act, 2019 states that any unfair trade practice to promote the sale, use, or supply of the goods adopts any unfair practice would be held liable.

Defences to Slander of Goods

Mere boasting, comparing, and making statements in favour of own product against others do not hold the defendant liable for injurious falsehood. This privilege is conditional and exists only in injurious falsehood. Business competitors use this in advertising their products.

To advertise the product, it is allowed to show one’s product as the best product among all. But, it is not acceptable to devalue the rival’s product with an untrue and derogatory statement to gain undue profit. Such a case would be held liable for injurious falsehood and can not be considered mere “puffery”. De Beers Abrasive Products Ltd. vs International General Electric Co. of New York Ltd. (1975)

Difference Between Injurious Falsehood and Defamation

Injurious falsehood and defamation are presumed similar to each other as in both, the derogatory accusations are made against the plaintiff published in front of the third party. Nonetheless, they differ from each other in the following aspects.

Here are the major differences between injurious falsehood and defamation:

1. Defamation is about the person’s reputation, and injurious falsehood is about the person’s property, goods, and businesses. Hence, defamation fails if the statement does not tarnish the person’s reputation, but injurious falsehood will lie even if it does not cause any harm to the person’s image.
2. Proof of special damage is not always required in defamation, but in injurious falsehood, the court requires evidence to decide the matter.
3. If the defendant takes the qualified privilege in defamation and the plaintiff denies them, then in that scenario, only the plaintiff is responsible for proving the ill will and malice of the defendant in order to hold him liable. Whereas, in injurious falsehood, ill will and malice are relevant points to be taken into consideration and must be proved by the plaintiff in all the scenarios.
4. If the statement made by the defendant is true, then it can be taken as a defence on the defendant’s part in the defamation. Whereas, in injurious falsehood, the burden lies on the plaintiff to prove the statement as untrue and disparaging.
5. Defamation sometimes may be actionable per se, whereas injurious falsehood would not be.

Read Next:
1. What Are the Remedies Under Tort Law
2. What Is Vicarious Liability Under Tort Law
3. What Are the General Defences Under the Law of Torts

What Is Injurious Falsehood and How It Differs From Defamation
Suhani Gandhi

Liability Under Tort Law

A tort is a civil wrong committed against a person or property. There are certain liabilities under the tort law that make a person liable for the acts committed by another person. Now, you might be wondering how this is possible? So, in this law note, we’ll discuss the various types of liabilities under the Law of Torts and will study vicarious liability in detail.

Vicarious means acting or done for another. Thus vicarious liability in the law of torts means liability because of the actions of someone else. For example, the liability of a master because of the acts of the servant.

Kinds of Liability Under Tort Law

The two kinds of liabilities under tort law are:

1. Strict or Absolute Liability.
2. Vicarious Liability.

Let us learn more about the kinds of liabilities under the law of torts.

1. Strict or Absolute Liability

In some torts, the defendant is liable even though the plaintiff’s harm occurred without intention or negligence on the defendant’s part. Hence, a defendant can be made liable even without fault.

Even in India, we follow the concept of absolute liability as laid down in MC Mehta vs Union of India by Justice Bhagwati.

Case Law: In the case of Rylands vs Fletcher, it was held that if a person brings or accumulates anything on his land which if escaped may cause damage to its neighbours; he does so at his liability, however careful he may have been and whatever precautions he may have taken to prevent damage. Then, he will be held liable for such an act.

We have a separate law note that tells you about strict and absolute liability. Have a look. Below, let us learn about vicarious liability.

2. Vicarious Liability

Vicarious liability is a liability where the master is liable for the tort of his servant, principal for his agent, partner for another partner and an employer for an employee.

The legal maxim Qui Facit per alium Facit per se also applies to the concept of vicarious liability, which means he who acts for another, acts for himself.

Four important kinds of vicarious liability are:

• Principal-Agent Relationship.
• Partners.
• Master and Servant.
• Employer and Independent Contractor.

Principal-Agent Relationship

An agent is a person who acts on behalf of the principal. Therefore, if an agent does any wrongful act in the course of his employment, then the master will be held liable for the acts committed by the agent.

Suppose the agent performs some activity in the absence of the principal, which favours the principal, even though the principal does not know this act. In that case, he will still be held responsible as the agent acted for the principal’s benefit.

Partners

All the partners are liable to the same extent as the guilty partner. In Hamlyn vs Houston, one of the two partners bribed the plaintiff’s clerk, persuading him to provide confidential information about his employer’s firm. The court decided that both partners were responsible for the tort committed by only one of them.

Master and Servant

Master will be held liable for the tort or wrongful act committed by his servant during the course of employment. Obviously, the servant will also be held liable.

A master is liable not only for the acts that the servant has committed but also for the acts done by him that are not explicitly authorised.

Principal of Respondent Superior will be applicable here, which says, let the principal be liable.

The master is liable even though the servant acted against the expressed instructions.

Employer and Independent Contractor

Ordinarily, an employer is not liable for the tort committed by an independent contractor. But there are certain conditions where even the employer will be held liable.

• The employer is liable only if he has committed a tort.
• When the employer authorises him to commit a tort.
• In torts of strict liability.
• Negligence of an independent contractor.

Vicarious Liability of State

Even the state has certain liabilities, and now let us study the position of vicarious liability in India and England.

Position in England

At common law, a crown could not be sued in tort, but as per the Crown Proceedings Act, 1947, even the crown is liable for the torts committed by its servants.

Position in India

In India, the state can be held liable under vicarious liability, and it could claim immunity only if the act committed is a sovereign function.

Conclusion

By reading this law note, we can conclude that vicarious liability is a liability put on the principal for the act of his agent in the course of employment because an agent is a person who works on behalf of the principal.

Read Next:
1. What Is Rule of Constructive Liability or Joint Liability in IPC
2. What Are the General Defences Under the Law of Torts
3. What Is Nuisance in Law of Torts in India?

Concept of Vicarious Liability Under Tort Law
Anushka Saxena

Tort is a civil wrong, and a person committing any tort will be punished according to the provisions of tort law. Now, the question is, what remedy will be available to the party or person against whom such wrong has been committed. When something that a party may have been enjoying is taken away from them by another party, they are said to be aggrieved. This is a violation of the party’s rights and is punishable by law. A legal remedy is another example of such a treatment. Please continue to read this law note to learn about the remedies available under the law of torts in detail.

What is Remedy under Tort Law?

The remedy is nothing but a relief available to the person against whom any wrong has been committed, and such relief is given by the accused party.

A tort can be committed against an individual or his property. Certain torts take place even if a person does not have an intention to commit them. Example – Nuisance.

Kinds of Remedies in Tort

Broadly, there are two kinds of remedies available in torts:

1. Judicial Remedies.
2. Extra-Judicial Remedies.

Let us learn more about the remedies available in tort.

1. Judicial Remedies.

When there is due involvement of the court in any case and remedy is granted by the court to the innocent party against whom the wrong has been committed, such a remedy is known as a judicial remedy.

Judicial remedies in law of tort can be classified into:

• Damages.
• Injunction.
• Specific Restitution of Property.

Damages.

Here, damage does not mean any harm or injury. Instead, damages mean monetary compensation given to the aggrieved party. It is of two types – Liquidated damages, where the amount of compensation is already decided for a particular offence. Whereas in unliquidated damages, the amount of compensation is not fixed, and the court decides it according to the nature of an offence. In the law of tort, there are unliquidated damages.

Injunction.

Injunction is an equitable remedy available in tort. It means a stay order put by the court on a person’s property where a person is restricted to use his property.

For example, if a person has fraudulently acquired someone’s property and a dispute arises between them, the court can put a stay order on that property, and it cannot be used until the court’s final order.

Specific Restitution of Property.

Specific Restitution of Property means restoration of the property back to the owner. If a person has taken any property of another due to which dispute arises between them, then the court can order the person who has taken the property to return it.

2. Extra-Judicial Remedies.

In such cases, the dispute is not settled by the court. Instead, it is settled by the disputing parties on their own or by any competent authority.

Extra-judicial remedies under the tort law include:

• Self Defence.
• Prevention of Trespass.
• Re-entry on land.
• Re-caption of Goods.
• Abatement of Nuisance.
• Distress Damage Feasant.

Self Defence.

It is lawful for a person to use reasonable force to protect himself or another person from any wrongful or unlawful act.

Prevention of Trespass.

It is lawful for a person to use reasonable force to:
(i) prevent someone from entering into their property, or
(ii) taking a person out of their property who has unlawfully entered into their property.

Re-entry on land.

A person wrongfully disposed of his land may retake possession of his land if he can do so peacefully and reasonably.

Re-caption of Goods.

A person entitled to custody of a chattel (tangible goods) does not commit a crime or tort by taking it peacefully or with reasonable force from someone who has wrongfully taken it or detained it.

Abatement of Nuisance.

The occupier of the land may lawfully abate (terminate) any nuisance affecting it:
(i) upon giving notice.
(ii) by choosing the least mischievous method.
(iii) avoiding unnecessary damage.

Distress Damage Feasant.

An occupier may lawfully or unlawfully seize any chattel from entering his land or doing damage. The person can detain them until compensation is paid for the damage.

Ubi Jus Ibi Remedium

The Latin maxim Ubi jus ibi remedium means where there is right, there is the remedy. This means that if any person’s legal rights are violated, they will be provided with the remedy for the infringement of that legal right. The Right to Remedy is also a Fundamental Right granted by the Indian Constitution.

Case Law: The petitioner in Bhim Singh vs State of Jammu and Kashmir was a member of the Jammu and Kashmir parliamentary assembly. He was wrongly arrested by a police officer while on his way to attend the legislative session, and he was barred from attending the session. He was not brought before the magistrate in a timely manner, despite the fact that he had a legal right to be present at the hearing. His constitutional right to freedom of expression under Article 21 was also breached. Finally, the Supreme Court ruled that the defendants were to blame and granted the petitioner Rs.50,000 in damages for the violation of his fundamental rights.

Read Next:
1. What Are the General Defences Under the Law of Torts
2. What Is Nuisance in Law of Torts in India?

Remedies Under Tort Law
Anushka Saxena

Strict liability and absolute liability function under the ‘no-fault liability’ principle, which says that if a person/enterprise brings any hazardous/dangerous substance of non-natural use in its premises and if that substance escapes and does any mischief, then whatever loss the other party suffers that person/enterprise shall be made liable for it.

• Rule of Strict Liability
• Ryland vs Fletcher case (important)
• Rule of Absolute Liability
• Difference Between Strict Liability and Absolute Liability

Rule of Strict Liability

The rule of strict liability was propounded in 1868 in Ryland vs Fletcher.

Ryland vs Fletcher case

Facts of the case

• Rylands and Fletcher lived in a neighbourhood.
• Rylands had mines in his land, while Fletcher had a mill on his land.
• Fletcher required a huge amount of energy to run the mill, so he decided to construct a reservoir.
• To construct the reservoir, independent contractors and engineers were appointed by Fletcher.
• No attention was paid to mine shafts while constructing the reservoir.
• When the reservoir was ready and the water was filled, the water reached the mines of Rylands through the mine shafts, due to which he suffered heavy losses and sued Fletcher for the same.
• Fletcher defended by stating that the negligence was by independent contractors and engineers.
• In the judgement delivered by the House of Lords, Fletcher was held liable for the entire loss suffered by Rylands.

Principle of no-fault liability

According to the rule, if any person brings any dangerous thing on his land for non-natural use and that dangerous thing has the ability to escape on its own and causes harm, such person shall be liable for it even though there was no negligence on his part. This is known as the rule of strict liability. Such things may be any harmful gas, water, or chemicals.

Essential of strict liability

The three essential points regarding strict liability are:

1. Some dangerous thing must have been brought on one’s land.
2. There must be non-natural use of land.
3. The dangerous thing bought must escape and cause damage.

Exception to rule of strict liability

Here are the five exceptions to the rule of strict liability.

1. Plaintiff’s own fault

The classic example would be Ponting vs Noakes. In this case, the plaintiff’s horse intruded into the defendant’s land and consumed the leaves of some wild tree and died after that. The defendant was not held liable as the damage would not have occurred if the plaintiff’s horse had not intruded on the defendant’s land. The rule of strict liability would not apply as there was no escape.

2. Act of God

Any natural event which is not predictable, controllable or preventable, damage caused by such event cannot be held liable for. In Nicholas vs Marsland 1876, due to heavy rainfall defendant’s artificial lake was flooded, due to which the plaintiff’s four bridges washed away. The plaintiff brought an action to recover the damages. It was held that the defendant was not liable as the accident was caused by an act of God.

3. Volenti non-fit injuria / mutual benefit

If two persons with common consent bring any non-natural thing for mutual benefit and such thing causes damage, either of them cannot claim damages from each other.

Related: What Is Volenti Non-Fit Injuria Under the Law of Torts?

4. Act of stranger

If any damage has been caused due to the act of any stranger on whom the defendant had no control, the defendant will not be liable under this rule.

5. Statutory authority

An act done under the authority of a statute is a defence to an action for tort.

Rule of Absolute Liability

The rule of absolute liability was laid down in MC Mehta vs Union of India.

MC Mehta case

Facts of the case

• A company named Union Carbide set up a plant in Bhopal.
• The plant manufactured pesticide and such products.
• On the night of 2nd December 1984, the plant leaked 40 tons of dangerous gas (methyl isocyanate).
• The adjoining area around the plant became a gas chamber because of which 3000 people died, and various others were injured.
• During the investigation, it was found that all the safety systems of the plant were non-functional.
• The Supreme Court decided not to follow the rule of strict liability as this would result in such industries escaping the liability for the damage caused and lost lives.

Strict liability is a concept of the 18th century. With the passage of time and evolving power of science, the rule of absolute liability was for the first time applied in the case of MC Mehta vs Union of India, also known as the Oleum Gas Leak case.

The principle laid down in the MC Mehta case by Supreme Court is as follows:

“Where an enterprise is engaged in a hazardous or inherently dangerous activity, and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands vs Fletcher.”

Difference Between Strict Liability and Absolute Liability

1. In strict liability, any person can be made liable, whereas, in absolute liability, only an enterprise can be made liable (commercial objective).
2. In strict liability, the escape of a dangerous thing is necessary, whereas, in absolute liability, an enterprise can be made responsible even without an escape.
3. Certain exceptions are available to a person in strict liability, whereas no defences are available in absolute liability.

Read Next:
1. What Is Rule of Constructive Liability or Joint Liability in IPC
2. What Are the General Defences Under the Law of Torts
3. What Is Nuisance in Law of Torts in India?

What is Strict Liability and Absolute Liability
Nupur

Introduction and Meaning of Tort

A tort is not a crime. It is a civil wrong.

What is the origin and meaning of the word Tort?
The word tort is derived from the Latin word tortum which means to twist. It, therefore, includes those acts which are not straight or lawful but are crooked or twisted. In English, it means wrong.

Law of tort has its origin in the common law of England. This branch of law consists of various ‘torts’ or wrongful acts whereby the wrongdoer violates some legal right vested in another person.

What is Tort?
The term ‘tort’ means wrongdoing by one person causing injury to another, thereby the injured institutes or files for a remedy in a civil court. In simple words, it is an act of injury or damage to a person or property that is covered by the law, so that the person can start a court action is a tort.

How Tort can take place?
A tort can take place in either of the two forms: by a commission of an act or omission of an act.

What are the remedies for Tort?
Remedies for tortious acts include money damages or compensation or injunction depending upon the case.

Definition of Tort in Law

According to Section 2(m) of the Limitation Act, 1963, Tort means a civil wrong that is not exclusively a breach of contract or breach of trust.

Here’s how some famous legal personalities have defined Tort:

• John Salmond: “It 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 other merely equitable obligation.”
• Winfield: “Tortious Liability arises from the breach of a duty primarily fixed by the law. This duty is towards persons generally, and its breach is redressable by an action for unliquidated damages.”
• Fraser: “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.”
• Burdick: “An act or omission which unlawfully violates a person’s right created by law and for which the appropriate remedy is a common law action for damages by the injured person.”
• Keeton: “Tort law is a body of law concerned with granting or denying claims of individuals or impersonal legal entities against each other for the award of damages or other forms of legal reliefs.”
• Peter Brick: “The breach of a legal duty which affects the interests of an individual to a degree which the law regards as sufficient to allow that individual to complain on his or her own account rather than as a representative of society as a whole.”

Characteristics of Tort

1. Tort is a civil wrong.

There are two kinds of wrong – civil wrong and criminal wrong. Tort falls under civil wrongs.

There is a difference between civil wrongs and criminal wrongs. In civil wrongs, the injured party or the plaintiff files civil proceedings against the person causing injury or the defendant. The matter in a civil wrong is to be sued by a person himself, and the remedy for the same is unliquidated damages.

Whereas, this is not in the case of criminal wrongs. In criminal wrongs, the sufferer or a victim of a crime is not compensated; rather the justice is granted by punishing the wrongdoer.

2. Tort is an infringement of a right in rem.

There are two types of rights – right in rem and right in persona. Right in rem is the right which is available to the whole world and right in persona is a right available against any particular person. A tort is a violation of a right in rem.

3. Tort is a private wrong.

Tort is private wrong because it breaks the legal rights of an individual or specific group of individuals.

4. Remedy for tort is unliquidated damages.

The remedy for tort is equitable relief to the injured or unliquidated damages that are calculated by the court in accordance with the loss caused.

5. Law of tort is uncodified.

A tort is an uncodified law. Uncodified law is a law that does not have any written statutes or acts, and it has to rely on precedents and case laws. They are originated from sources such as court decisions, customs, and principles of jurisprudence. The law of tort is based upon precedent and developed through different case laws.

Differences Between Tort and Crime

Less serious wrongs are considered as private wrongs and have been labelled as civil wrongs, whereas wrongs that are more serious in nature have been considered to be public wrong and are known as crimes.

In tort, a suit is filed by the injured person himself whereas, in crime, the case is brought by the state on behalf of the victim.

A person who commits a tort is known as a tortfeasor whereas a person who commits a crime is known as a criminal.

If at any stage the injured party likes, he can compromise with the tortfeasor and withdraw the suit filed by him. On the other hand, in crimes, settlement or compromise between the wrongdoer and the aggrieved party is possible only in exceptional cases.

In the case of tort, the wrongdoer pays compensation to the injured party and on the other hand, in the case of crimes the wrongdoer is punished as per section 53 of the IPC, which provides types of punishments in crime.

Differences Between Tort and Breach of Contract

A breach of contract occurs from the breach of a duty undertaken by the parties themselves. Whereas, a tort is the result of the breach of duties that are not undertaken by the parties but which are imposed by law.

Damages are the basic remedy for both breach of contract and tort. Damage that is awarded in breach of contract is liquidated whereas, in tort unliquidated damages are awarded.

In a contract, each party owes its duty only to the contracting party. On the other hand, under the law of tort, duties imposed by law are not towards a specific individual or a specific group of an individual, but they are towards the world at large. However, only that person is entitled to sue who suffers damage by the breach of the duty under the tort.

Read Next:
1. What Are the General Defences Under the Law of Torts
2. What Is Nuisance in Law of Torts in India?

Introduction, Definition, and Characteristics of Tort – Law Note
Subhashini Parihar