Sunday, August 31, 2008

Law on Torts (part-2)

Law on Torts

 

Defamation

 

Defamation is injury to the reputation of a person. If a person injures the reputation of another, he does so at his own risk, as in the case of an interference with the property. A man’s reputation is his property, and if possible, more valuable, than other property (Dixon v. Holden, 1869).

s. 499 of the Penal Code- Whoever by words either spoken or by visible representations, makes or publishes any imputation concerning any person intending to harm  the reputation of him, except in the cases hereinafter excepted, to defame that person.

 

Ten exceptions-

1. Imputation of truth which public good requires to be made or published-

2. Public conduct of public servants-

3. Conduct of any person touching any public question-

4. Publication of reports of proceedings of Courts-

5. Merits of case decided in Court or conduct of witnesses and others concerned-

6. Merits of public performance-

7. Censure passed in good faith by person having lawful authority over another-

8. Accusation preferred in good faith to authorized person-

9. Importation made in good faith by person for protection of his or other’s interests-

10. Caution intended for good of person to whom conveyed or for public good-

 

s. 500- Punishment for defamation- two years or fine or both.

 

s. 501- Printing or engraving matter known to be defamatory- Whoever prints or engraves any matter, knowing that to be defamatory of any person, shall be punished with two years or fine or both.

 

s. 502- Sale of printed or engraved substance containing defamatory matter- Whoever sells or offers for sale any printed substance containing defamatory matter knowingly, shall be punished with two years or fine or both.

 

Classification of defamation

Defamation is of two types- libel and slander. Distinction between the two is-

Libel

Slander

It is written

It is oral

It is permanent

It is temporary

It is both tort and offence

It is only tort

It is actionable per se

It is not actionable per se

Intention is easier to prove

Intention is not that easy to prove.

 

Essential elements of defamation-

i) The statement must be defamatory

ii) The said statement must refer to the plaintiff

iii) The statement must be published

iv) The statement must be passed by the defendant

 

Explanation-

i) The statement must be defamatory-

Defamatory statement is one which tends to injure the reputation of the plaintiff. Whether a statement is defamatory or not depends upon how the right thinking members of the society are likely to take it.

D.P. Choudhury v. Manjulata (1997)- There was publication of a statement in a local daily in Jodhpur that Manjulata went out of her house on the earlier night at 11 p.m. on the pretext of attending night classes and ran away with a boy named Kamlesh. She belonged to a well educated family and was herself also a student of B.A class. She was 17 years of age. The news item was untrue and had been published with utter irresponsibility and without any justification. Such publication had resulted in her being ridiculed and affected her marriage prospects. The statement being defamatory, the defendants were held liable.

The Innuendo

A statement may prima facie be innocent but because of some latent or secondary meaning, it may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he must prove the latent or the secondary meaning, i.e. innuendo.

 

Intention to defame is not necessary- When the words are considered to be defamatory by the persons to whom the statement is published, it is immaterial that the defendants did not know of the facts, is considered to be defamatory.

Cassidy v. Daily Mirror Newspapers Ltd.- Mr. Cassidy was married to a lady who called herself Mrs. Cassidy. The defendants published in their newspapers a photograph of Mr. Cassidy and Miss ‘X’ with the following words underneath: ‘Mr. M. Cassidy, the race horse owner, and Miss ‘X’, whose engagement has been announced’. Mrs. Cassidy sued the defendants for libel alleging that the innuendo was that Mr. Cassidy was not her husband and he lived with her in immoral cohabitation. The Court of Appeal held that the innuendo was established.

 

ii) The statement must refer to the plaintiff-

In an action for defamation, the plaintiff has to prove that the statement of which he complains referred to him. It is immaterial that the defendant did not intend to defame the plaintiff.

Newstead v. London Express Newspapers Ltd.- the defendants published an article stating that ‘Harold Newstead, a Camberwell man’ had been convicted of bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for defamation was brought by another Harold Newstead, a Camberwell barber. As the words were considered to be understood as referring to the plaintiff, the defendants were held liable.

 

iii) the statement must be published-

Publication means making the defamatory matter known to some person other than the person defamed, and unless that is done, no action for defamation lies.

Mahendra Ram v. Harnandan Prasad- the defendant sent a defamatory letter written in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the was read over to him by third person. It was held that the defendant was not liable unless it was proved that at the time of writing the letter in Urdu script, the defendant knew that the Urdu script was not known to the plaintiff and would necessitate reading of the letter by a third person.

 

iv) the statement must be passed by the defendant

 

 

Defences:

The defences to an action for defamation are-

1. Justification of truth

2. Fair comment

3. Privilege which may be either absolute or qualified.

 

1. Justification of truth-

In a civil action for defamation, truth of the defamatory matter is complete defence. Under the Penal Code, merely proving that the statement was true is no defence. Section 499 requires that besides being true, the imputation must be shown to have been made for public good.

 

2. Fair comment-

For this defence it is required:

a) It must be a comment i.e. an expression of opinion

b) the comment must be fair

c) the matter commented upon must be of public interest.

 

3. Privilege is of two types: (a) Absolute privilege and (b) Qualified privilege

 

(a) Absolute privilege-

i) Parliamentary proceedings- Art. 78(3) of the Constitution states, a member of Parliament shall not be liable in any Court in respect of anything said, or any vote given, by him in Parliament or in any committee thereof.

ii) Judicial proceedings-

iii) State communications-

 

(b) Qualified privilege- in certain cases, the defence of qualified privilege is also available. To avail this defence, the defendant has to prove the following two points:

i) the statement was made on a privileged occasion, i.e. it was in discharge of duty or protection of an interest

ii) the statement was made without any malice.

 

 

Trespass

 

Trespass is of two types: (i) Trespass to body, ii) Trespass to land

Trespass to land or property

Trespass to land means interference with the possession of land without lawful justification. In trespass, the interference with the possession is direct and through some tangible object.

Trespass is a wrong against possession rather than ownership. Therefore, a person in actual possession can bring an action even though, against the true owner, his possession was wrongful.

Remedies: both judicial and extra judicial. Extra judicial remedies are:

i) Re-entry

ii) Action for ejectment

iii) Action for mesne profit

iv) Distress damage pheasant- to seize trespassing cattle until compensation has been paid.

 

Judicial remedies are mentioned in s. 297 and 441-462 of the Penal Code, 1860:

s. 297- Trespassing on burial places with intention of wounding the feelings of any person or insulting the religion- 1 year, fine, both.

 

s. 441- Criminal trespass- whoever enters other’s land to commit an offence or to intimidate, insult or annoy.

s. 442- House trespass- Whoever commits criminal trespass by entering into any building, vessel or tent.

s. 443- Lurking house trespass- Whoever commits house trespass having taking precautions to conceal such trespass from the owner.

s. 444- Lurking house trespass by night- Whoever commits lurking house trespass after sunset and before sunrise.

s. 445- House breaking- Whoever enters into a house by making a passage, or with the help of the abettor, or by opening any lock etc.

s. 446- House breaking by night- after sunset and before sunrise.

 

s. 447- Punishment for criminal trespass- 3 months, 500 taka, both.

s. 448- Punishment for house trespass- 1 year, 1000 taka, both

s. 449- House trespass in order to commit offence punishable with death- imprisonment for life, or rigorous 10 years, also fine.

s. 450- House trespass in order to commit offence punishable with imprisonment for life- 10 years, also fine.

s. 451- House trespass in order to commit offence punishable with imprisonment- 2 years, also fine.

If for committing theft- 7 years.

s. 452- House trespass after preparation for hurt, assault or wrongful restraint- 7 years, also fine.

s. 453- Punishment for lurking house-trespass or house breaking- 2 years, also fine.

s. 454- Lurking house trespass or house breaking in order to commit offence punishable with imprisonment- 3 years, also fine. If for committing theft- 10 years.

s. 455- Lurking house-trespass or house-breaking after preparation for hurt, assault or wrongful restraint- 10 years, also fine.

s. 456- Punishment for lurking house-trespass or house-breaking by night- 3 years, also fine.

s. 457- Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment- 5 years, also fine. If for committing theft- 14 years.

s. 458- Lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint- 14 years, also fine.

s. 459- Grievous hurt caused whilst committing lurking house-trespass or house-breaking- imprisonment for life, also fine.

s. 460- All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them- for life, also fine.

s. 461- Dishonestly breaking open receptacle containing property- 2 years, fine, both.

 

Trespass to goods: It means direct physical interference with the goods, which are n the plaintiff’s possession, without lawful justification. Throwing stones on a car, shooting birds, beating animals or infecting them with disease or chasing animals to make them run away from its owner’s possession are examples of trespass to goods. Trespass to goods are actionable per se.

 

 

Liability

 

Liability is of two types: (i) Absolute or strict, and (ii) Vicarious.

 

(i) Absolute or strict liability- Sometimes a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause the harm, or sometimes he may even have made some positive efforts to avert the same.

 

In Rylands v. Fletcher, 1868, the House of Lords laid down the rule recognizing ‘no fault’ liability. The liability recognized was ‘strict liability’, i.e. even if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm or he was careful, he could still be made liable under the rule.

Facts of the case- the defendants got a reservoir constructed, through independent contractors, over his land for providing water to his mill. There were old disused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal-mines on the adjoining land. The defendant did not know of the shafts and had not been negligent although the independent contractors had been. Even though the defendant had not been negligent, he was held liable.

 

(ii) Vicarious liability- In certain cases, a person is held liable for the act of another person. The common example of such liability are-

a) Liability of the principal for the tort of his agent

b) Liability of partners of each other’s tort

c) Liability of the master for the tort of his servant

 

a) Principal and agent- Where one person authorizes another to commit a tort, the liability for that will be not only of that person who has committed it but also of that who authorized it. It is based on the general principle ‘Qui facit per alium facit per se’ which means that the act of an agent is the act of the principal. For any act authorized by the principal and done by the agent both of them are liable.

Lloyd v. Grace, Smith & Co. – Mrs. Lloyd, who owned two cottages but was not satisfied with the income therefrom, approached the office of Grace, Smith & Co., a firm of solicitors, to consult them about the matter of her property. The managing clerk of the company attended her and advised her to sell the two cottages and invest the money in a better way. She was asked to sign two documents, which were supposed to be sale deeds. In fact, the documents got signed were gift deeds in the name of the managing clerk himself. He had acted solely for his personal benefit and without the knowledge of his principal. It was held that since the agent was acting in the course of his authority, the principal was liable for the fraud.

 

b) Partners- The relationship as between partners is that of principal and agent. The rules of the law of agency apply in case of their liability also. For the tort committed by any partner in the ordinary course of the business of the firm, all other partners are liable to the same extent as the guilty partner.

Hamlyn v. Houston & Co.- One of the two partners  of the defendant’s firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make a breach of contract with his employer (plaintiff) by divulging secrets of the firm were liable for this wrongful act committed by only one of them.

 

c) Master and servant- A servant is a person employed by another to do work under the directions and control of his master. If a servant does a wrongful act in the course of his employment, the master is liable for it. The servant, of course, is also liable. The doctrine of liability of the master for act of his servant is based on the maxim ‘respondeat superior’, which means ‘let the principal be liable’.

For the liability of the master to arise, the following two essentials are to be present:

i) the tort was committed by the ‘servant’;

ii) the servant committed the tort in the ‘course of his employment’.

 

 

Nuisance

 

Nuisance is a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. The interference may be any way, e.g. noise, vibration, heat, smoke, smell, fumes, water, gas, electricity or disease producing germs.

Nuisance is distinguished from trespass-

Trespass

Nuisance

Interference is direct.

Interference is consequential.

It is interference with a person’s possession of land.

It is interference with a person’s use of land.

The interference is always through some material or tangible objects.

Nuisance can be committed through the medium of intangible objects.

Trespass is actionable per se.

Special damage has to be proved in order to obtain remedy.

 

Nuisance is of two types:

(i) Public or common nuisance (ii) Private nuisance, or tort of nuisance

 

i) Public Nuisance

Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is interference with the right of public in general and is punishable as an offence. For example, obstructing a public way by digging a trench. Such obstruction may cause inconvenience to many persons but none can be allowed to bring a civil action for that.

 

ii) Private nuisance

To constitute the tort of nuisance, the following essentials are required to be proved:

a) unreasonable interference

b) Interference is with the use of enjoyment of land

c) Damage

 

a) unreasonable interference-  Interference may cause damage to the plaintiff’s property or may cause personal discomfort to the plaintiff in the enjoyment of property. Every interference is not a nuisance. To constitute nuisance, the interference should be unreasonable. Ushaben v. Bhagya Laxmi Chitra Mandir.

 

b) Interference with the use or enjoyment of land- Interference may cause either: (i) injury to the property itself, or (2) injury to comfort or health of occupants of certain property.

 

c) Damage- Unlike trespass, which is actionable per se, actual damage is required to be proved in an action for nuisance.

Fay v. Prentice- a cornice of the defendant’s house projected over the plaintiff’s garden. It was held that the mere fact that the cornice projected over the plaintiff’s garden raises a presumption of fall of rain water into and damage to the garden and the same need not be proved. It was a nuisance. In private nuisance, although damage is one of the essentials, the law often presume it.

 

Difference between public nuisance and private nuisance-

Public nuisance

Private nuisance

It is a crime.

It is a civil wrong

It is interference with the right of public in general.

It is interference with the right of an individual or few persons

None is allowed to bring a civil action against it.

The person whose right is interfered with can bring a civil action against it.

 

Defence

 

i. Prescriptive right to commit nuisance- A right to do an act, which would otherwise be a nuisance, may be acquired by prescription. If a person has continued with an activity on the land of another person for 12 years or more, he acquires a legal right by prescription, to continue therewith in future also. This right is called easement right.

 

ii. Statutory authority- An act done under the authority of a statute  is a complete defence. Thus, a railway company authorized to run railway trains on a track is not liable if, in spite of due care, the sparks from the engine set fire to the adjoining property, or the value of the adjoining property is depreciated by the noise, vibrations and smoke by the running of trains.

 

Provisions of nuisance in the Penal Code

 

There are 11 types of nuisance mentioned in s. 268 – s. 294A.

 

s. 268- Public nuisance- A person is guilty of public nuisance whose act or omission causes common injury danger or annoyance to the public. A common nuisance is not excused on the ground that it cause some convenience or advantage.

 

s. 269- Negligent act likely to spread infection of disease dangerous to life- Whoever spreads any infection of disease negligently or unlawfully- 6 months, fine, both.

s. 270- Malignant act likely to spread infection of disease dangerous to life- Whoever malignantly does any act to spread the infection of any disease dangerous to life- 2 years, fine, both.

s. 271- Disobedience to quarantine rule- 6 months, fine, both.

s. 272- Adulteration of food or drink intended for sale- 6 months, 1000 taka, both.

s. 273- Sale of noxious food or drink- Whoever sells, offers or exposes for sale which has become noxious (poisonous or harmful)- 6 months, 1000 taka, both.

s. 274- Adulteration of drugs- Whoever adulterates any drug to lessen the efficiency or makes it noxious that it shall be sold or used- 6 months, 1000 taka, both.

s. 275- Sale of adulterated drugs- 6 months, 1000 taka, both.

s. 276- Sale of drug as a different drug or preparation- Whoever sells or issues from a dispensary  for medical purposes any drug as a different drug or medical preparation- 6 months, 1000 taka, both.

s. 277- Fouling water of public spring or reservoir- 3 months, 500 taka, both.

s. 278- Making atmosphere noxious to health- 500 taka.

s. 279- Rush driving or riding on a public way- Whoever drives in a manner so rash or negligent as to endanger human life, or to cause hurt or injury to others- 3 years, 1000-5000 taka, both.

s. 280- Rash navigation of vessel- 6 months, 1000 taka, both.

s. 281- Exhibition of false light, mark or buoy- Whoever exhibits any false light, mark or buoy, intending that such exhibition will mislead any navigator- 7 years, fine, both.

s. 282- Conveying person by water for hire in unsafe or overloaded vessel- 6 months, 1000 taka, both.

s. 283- Danger or obstruction in public way or line of navigation- 200 taka.

s. 284- Negligent conduct with respect to poisonous substance- 6 months, 1000 taka, both.

s. 285- Negligent conduct with respect to fire or combustible matter- 6 months, 1000 taka, both.

s. 286- Negligent conduct with respect to explosive substance- 6 months, 1000 taka, both.

s. 287- Negligent conduct with respect to machinery- 6 months, 1000 taka, both.

s. 288- Negligent conduct with respect to pulling down or repairing buildings- 6 months, 1000 taka, both.

s. 289- Negligent conduct with respect to animal- 6 months, 1000 taka, both.

s. 290- Punishment for public nuisance in case not otherwise provided for- Whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with 200 taka.

s. 291- Continuance of nuisance after injunction to discontinue- Whoever repeats or continues a public nuisance, having been enjoined by any public servant who has lawful authority to issue such injunction not to repeat such nuisance- 6 months, fine, both.

s. 292- Sale, etc. of obscene books, etc- 3 months, fine, both.

s. 293- Sale, etc of obscene objects to young person- under the age of 21 years- 6 months, fine, both.

s. 294- Obscene acts and songs- Whoever to the annoyance of the others does any obscene act in public place or sings, recites or utters obscene songs near any public place- 3 months, fine, both.

s. 294A- Keeping lottery office- 6 months, fine, both.

 

 

 

 

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